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What Does New York’s Latest Marijuana Decriminalization Measure Accomplish?

Posted by on Friday, August 2, 2019 in News, Updates.

As reported in various outlets, e.g., The Hill  and the New York Times, New York Governor Andrew Cuomo signed legislation on Tuesday that decriminalizes some low-level marijuana offenses and expunges (or seals) records of prior (and future) convictions for such offenses. The full legislation can be found at the NY Assembly website here.  The linked version of the law is redlined, thereby making it easy to spot the changes the 2019 legislation makes to New York law. (It doesn’t have any catchy short title, so I’ll just refer to it as the 2019 legislation.)

In this post, I’ll assess the significance of the two prongs of the 2019 legislation.

1) Decriminalization

At the outset, it is important to recognize that New York state had already decriminalized simple possession of 25 grams or less of marijuana (New York law refers to it as “marihuana”) back in 1977. See New York Penal Law § 221.05. This offense was called “unlawful possession of marihuana”, and it was classified as a “violation”, which is not a crime. In New York, only misdemeanors and felonies are considered “crimes”, though violations may still carry a short jail sentence of 15 days or less. Under the 1977 law, unlawful possession of marijuana was subject to a fine of up to $100, but repeat offenders faced harsher sentences – for example, up to 15 days in jail and a fine of up to $250 for a defendant who had been convicted of simple possession two (or more) times in the previous 3 years.

The 2019 legislation makes a few modest changes to this lowest level marijuana offense (which it redubs Unlawful Possession of Marihuana in the Second Degree, for reasons that will become apparent shortly). It raises the quantity limit slightly, from 25 grams to 1 ounce (which is about 28 grams). It also eliminates the sentencing enhancement for repeat offenders and lowers the maximum sanction for all offenders to a $50 fine.

Beyond that, the 2019 legislation also eliminates or decriminalized two other, related marijuana offenses. Under Section 221.10 of the New York Penal Law, (A) possession of more than 25 grams but less than 2 ounces of marijuana, and (B) open possession of marijuana in a public place, had been classified as Class B misdemeanors (which makes them “crimes” in the lingo of New York), punishable by a fine of up to $500 and up to 3 months in jail. (My book discusses New York’s open possession in a public place offense in great detail on pages 133-141.)

The 2019 legislation eliminates the open possession in a public place offense. (Nonetheless, the discussion of the provision in the book remains quite useful, as it provides insights into the rationale for banning – or not – public use and how states define that offense.)

The 2019 legislation also reclassifies the other offense found in Section 221.10: Possession of more than 1 ounce but less than 2 ounces of marijuana (now called “Unlawful Possession of Marihuana in the First Degree”) is now graded as a violation (i.e., it’s no longer criminal). The 2019 legislation also lowers the maximum sanction for this offense to a $200 fine.

How much of an impact will these substantive changes have? Jacob Sullum has suggested that the 2019 legislation could substantially reduce marijuana arrests by closing a “loophole” in the 1977 decriminalization measure. He notes that the 1977 law failed to reduce marijuana arrests (at least permanently) because the police could often charge suspects with one of the crimes defined by Section 221.10, even if they could no longer charge them with a crime under Section 220.05 (or its predecessor). Indeed, Sullum points out that marijuana arrests “skyrocketed” in NYC between 1997-2011 (reaching 50,000 in 2011), notwithstanding the fact that simple possession of 25 grams or less was only a violation. He suggests that by closing this “loophole”, the 2019 legislation should reduce arrests. His story can be found on Reason here.

However, I remain skeptical. For one thing, decriminalizing possession of larger quantities of marijuana won’t necessarily reduce arrests because it appears that police in New York can make stops and arrests even for violations (i.e., not just for crimes). I’m no expert on New York policing law, and I could find no source that directly addressed this point. But several reputable legal websites suggest (or at least assume) that the police can make stops / arrests for violations in New York. For example, the Legal Aid Society of NYC publishes a brochure describing what happens after an arrest in NYC, and that brochure makes a distinction between the procedures governing arrests for crimes and those governing arrests for violations (see here). It follows that if police may stop / arrest someone for a violation, then downgrading a class B misdemeanor (a crime) to a “violation” won’t necessarily prevent police from arresting someone for unlawful possession of marijuana (in the 1st or 2nd degree).

[UPDATE: 8/2/19 3:27 pm: Jacob Sullum helpfully emailed me to say that a provision of New York’s state budget passed in April likely bars police from making any more arrests for violations. The budget legislation can be found here; the relevant language can be found in part JJJ, Section 1-a. It states:

“Whenever a police officer is authorized . . . to arrest a person without a warrant for an offense other than a class A, B, C or D felony . . . , he shall . . . instead issue to and serve upon such person an appearance ticket.”

Jacob suggests — and I agree — that this recent reform should prevent police from making arrests for low-level marijuana offenses. It will not, of course, prevent them from stopping and potentially questioning (etc.) individuals for those offenses. But the 2019 legislation should have more of an impact than I originally thought.]

Eliminating the offense of open possession in a public place won’t necessarily reduce arrests either, because anyone who has committed this offense has – by definition – also committed the offense of simple possession (it is, after all, open possession). So if (as just discussed) the police can make stops / arrests for simple possession offenses, eliminating the offense of open possession will not preclude them from making any stops / arrests.

The Bottom Line: Decriminalizing offenses and / or eliminating duplicative offenses (like open possession) won’t necessarily reduce stops / arrests involving marijuana. Whether either move does so hinges on whether the state authorizes its police to make stops / arrests for civil violations. Importantly, not all states do so. As I discuss in the book, in my discussion of police searches, some states do not give their police the power to conduct a search (say, of a vehicle) based on probable cause that they will find evidence of a civil violation, but not a crime (see book pages 166-172). I guess the lesson is that gauging the effect of decriminalization in any given state requires delving into (among other things) the state’s rules defining the scope of police power.

To be sure, even if it doesn’t actually reduce police encounters involving marijuana offenses, the 2019 legislation should still:

A) Lower the sanction imposed if the police actually press low-level marijuana charges (e.g., the sanction for Unlawful Possession in the Second Degree is now capped at $50 versus $100); and

B) Enable individuals to avoid some collateral consequences that are triggered only by convictions or arrests for criminal offenses. For example, if someone is charged with and convicted of a violation of the revised Section 221.10 (for Unlawful Possession in the First Degree), they can now answer (honestly) on a job application that they have never been arrested or convicted of a crime (at least based on this incident). The collateral consequences of a marijuana arrest / conviction may prove significant, as discussed in the book (page 92, n.2). It should be noted that marijuana probably remains contraband in New York, so one collateral consequence — police seizure and destruction of marijuana — probably won’t go away.

2) Expungement / sealing of records of marijuana offenses

Apart from changing the substantive law governing low level marijuana offenses, the 2019 legislation also seeks to purge (or seal) the state’s records of low level marijuana offenses.

Section 3 of the 2019 legislation amends New York Criminal Procedure Law 440.1, to allow a defendant to ask a court to expunge all records of a low-level marijuana offenses under Sections 221.05 and 221.10 that pre-date the 2019 law. It also stipulates that the court “shall grant the motion.” In other words, ask and ye shall receive. Importantly, the 2019 legislation makes it clear that expungement serves to wipe the slate clean for the defendant:

“‘Expunge’ means, where an arrest and any enforcement activity connected with that arrest, including prosecution and any disposition in any New York state court, is deemed a nullity and the accused is restored, in contemplation of the law, to the status such individual occupied before the arrest, prosecution and/or disposition; that records of such arrest, prosecution and/or disposition shall be marked as expunged or shall be destroyed . . . . Neither the arrest nor prosecution and/or disposition, if any, of a matter deemed a nullity shall operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest, prosecution and/or disposition of such a matter.”

Section 6, 2019 legislation.

Section 5 of the 2019 legislation also amends New York Criminal Procedure Law 160.50 to provide that all records of proceedings involving Sections 221.05 and 221.10 (both before and after 2019) shall be automatically sealed and in some cases (those involving just accusatory instruments) expunged. Indeed, The 2019 legislation calls upon state officials to go to great lengths to ensure that state records regarding low level marijuana offenses really are wiped clean. For example, it provides that,

“the chief administrator of the courts shall develop and promulgate rules as may be necessary to ensure that no written or electronic report of a criminal history record search conducted by the office of court administration contains information relating to a conviction for [a low-level marijuana offense] . . .”

Section 7, 2019 legislation.

This forgiveness (or at least, forgetting) of prior (and even future) low level marijuana offenses is the most notable feature of the 2019 legislation. Indeed, Governor Cuomo and New York’s legislative leaders emphasized this aspect of the 2019 legislation in a press release announcing the Governor’s signature. Most marijuana reform measures – and all of the early ones – neglect to do anything about marijuana convictions that pre-date reforms. See my prior post here.

To be sure, some states have recently begun to provide relief from prohibition-era marijuana convictions. But New York’s is among the more notable of these efforts because it provides some automatic relief. In other words, there is nothing that a convicted (or just accused) defendant needs to do to get relief under the 2019 legislation – the law mandates that state officials provide such relief immediately. California has also made some relief automatic, but many other states instead require individuals to apply for relief, e.g., by petitioning a court or prosecutor to expunge or seal a prior conviction (which can be a tedious, expensive, and uncertain process).

One estimate (by The City) suggests that roughly 200,000 marijuana convictions will be removed or sealed under the 2019 legislation (see here).

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