Considered a major win by progressives when it was passed by New York State legislators, the Marijuana Regulation and Taxation Act (MRTA) was the subject of a virtual community discussion hosted by The Bronx Defenders on Tuesday, July 6, in conjunction with local Assemblywoman Nathalia Fernández (A.D. 80). The purpose of the discussion was to explain to Bronxites what the new law means for them.

 

According to its website, The Bronx Defenders is a public defender nonprofit that is “radically transforming how low-income people in the Bronx are represented in the justice system and in doing so, transforming the system itself.” Brittany McCoy, policy associate, and Eli Northrup, policy counsel on criminal defense practice, represented the group during the discussion.

 

Signed into law by Gov. Andrew Cuomo on March 31, 2021, the MRTA permits the use of cannabis by adults of 21 years and older and automatically expunges or removes records of cannabis-related convictions. Plans are also afoot to invest 40 percent of all tax revenue generated by future cannabis sales back into communities devastated by the “War on Drugs.”

 

At its core, the MRTA attempts to mark an end to decades of over-criminalization of people who have been disproportionately impacted by cannabis-related convictions, who are usually low-income communities and people of color. According to criminal justice experts, the collateral consequences of such convictions have created years of economic insecurity, chronic unemployment, and severed access to loans for education and housing.

 

In 2018, New York City Comptroller Scott Stringer conducted an analysis of such convictions and identified a list of neighborhoods across the five boroughs with the highest, average, cannabis-related arrest rates from 2010 to 2017. Nearly half of all Bronx neighborhoods were among the top ten. They included Concourse, Highbridge, Mount Eden, Belmont, Crotona Park East, East Tremont, Bedford Park, Fordham North, Norwood, Morris Heights, Fordham South, and Mount Hope.

 

In addition, the racial breakdown of total cannabis arrests during the same period was 53 percent Black, 35 percent Latinx, 11 percent Asian, and 3 percent White.

 

Meanwhile, the New York City Police Department (NYPD) recently released its cannabis possession report for the first quarter of 2021. Out of 163 arrests and summonses, the Bronx had one of the highest rates at 25 percent compared to Staten Island, which had the lowest at 3 percent.

 

The report showed that when broken down by race, age, and gender across the five boroughs, 48 percent of offenders were Black, 43 percent Hispanic, and 4 percent White. Cannabis possession was also found to be highest among males, at 96 percent, while the age group that was most impacted was the one comprising 25 to 34-year-olds.

 

For Fernández, the impact of over-policing hits close to home for Bronxites. “We’ve seen families torn apart. We’ve seen communities crumble from the over-policing and from the need to start selling drugs,” she said. However, she’s optimistic that the MRTA will put an end to such trends which transcend generations of Bronxites.

 

“The MRTA is literally going to bring people back home, allowing them to restart their lives with a clean slate and to be a part of this, you know, new industry that people across the country are benefiting from,” she said.

 

As outlined in the MRTA, the new industry will be regulated and administered in New York State by a soon-to-be created, ten-member Cannabis Control Board (CCB). The board will oversee the distribution of licenses to individuals looking to start cannabis-based businesses.

 

It will also ensure that tax revenue generated by cannabis sales, which are projected to generate up to $350 million annually and potentially create up to 60,000 jobs, will be invested back into the communities which have been most impacted by over-criminalization for cannabis-related offenses.

 

Officials said the tax revenue will be distributed to the community through non-profit organizations and select government agencies and will prioritize people with prior cannabis convictions.

 

“The money from this is literally going to bring resources into the Bronx,” Fernández continued. “We want to see community centers. We want to see workforce development, where people can get the licenses to start businesses that will regenerate the economy and keep money in the neighborhood.” She added, “The door is open. Now, all we have to do is design the room.”

 

Despite MRTA’s monumental passage, some community members like Kendall Jackman, an activist and community organizer, though cautiously optimistic, are also skeptical that the law’s promised benefits will reach Bronxites at a grassroots level.

 

“When you say to us, qualified non-profit organizations, and government agencies, we know how that works out,” she said. “So, my question is, how do we ensure that we, the community, are involved and get what we need?” Jackman asked.

 

She said there was a history in the country of people who looked like her [a person of color] not getting loans to open stores or not even getting mortgages. “So, hopefully, the MRTA will be a salve for all the wrongs that have happened,” she said. “If it works the way it should, as it is written on paper, it’d be great for the community.”

 

Prohibition of cannabis in New York State began in 1914 when the passing of the Boylan Bill, a piece of narcotics legislation, banned the use of cannabis. Then in 1973, nearly six decades later, Gov. Nelson Rockefeller signed legislation that increased the penalty for distributing cannabis. This meant a minimum sentence of 15 years in prison, up to a maximum of 25 years to life, could be imposed for selling more than two ounces of cannabis, or for processing more than four ounces.

 

These laws dovetailed with other strict regulations mandated at the federal level with the creation of the United States Drug Enforcement Agency (DEA) in 1973. The Comprehensive Crime Control Act was passed in 1984, and was followed by the Anti-Drug Abuse Act, passed under President Ronald Regan, in 1986. Prompted by the infamous “War on Drugs” campaign, and as reported by PBS, the laws raised federal penalties for cannabis dealing and possession, such that possession of 100 cannabis plants received the same penalty as possession of 100 grams of heroin.

 

A later amendment to the Anti-Drug Abuse Act established a “three strikes and you’re out” policy, requiring life sentences for repeat drug offenders, and provided for the death penalty for “drug kingpins.”

 

In the meantime, federal laws prohibiting cannabis have recently been challenged by way of draft, proposed legislation crafted by U.S. Senator of New York and U.S. Senate majority leader, Chuck Schumer. At a press conference on July 14, Schumer introduced The Cannabis Administration and Opportunity Act (CAOA) which, if passed, would legalize marijuana, and expunge all nonviolent cannabis-related criminal records.

 

“The war on drugs has really been a war on people, particularly people of color,” Schumer said. “The Cannabis Administration and Opportunity Act will help put an end to the unfair targeting and treatment of communities of color.”

 

He continued, “We have all seen the agony of a young person arrested with a small amount of marijuana in his or her pocket, and because of the historical over-criminalization of cannabis, they have a very severe criminal record they have to live with their whole lives. The waste of human resources because of the historic over-criminalization has been one of the great historical wrongs for the last decades, and we are going to change it.”

 

While current support for the CAOA in the U.S. Senate is slim, a recent Gallup poll found that 68 percent of U.S. adults back the federal legalization of marijuana. According to Gallup, this is nominally the poll’s highest reading, exceeding the 64 to 66 percent range seen from 2017 to 2019.

 

With the passing of the MRTA, New York has joined a growing list of states (18 so far) that have legalized adult-use, recreational cannabis, including, most recently, New Mexico, Virginia, and Connecticut. In addition, medical cannabis use is currently legal in 37 states.

 

However, Eli Northrup, a public defender at Bronx Defenders, contends that New York’s MRTA goes one step further than every other state where cannabis has been legalized.

 

“The odor of marijuana can no longer be used as a basis to stop or search or harass people on the street,” he said. “And that’s a huge deal because, you know, after ‘Stop and Frisk’ was outlawed, what we saw as public defenders is police officers claiming that they smelled the odor of marijuana and using that as an excuse to harass people.”

 

Northrup continued, “And that’s not something that shows up on a body cam or anything like that. It’s an easy thing to say, and it’s a hard thing to disprove. So, they can’t use that justification anymore.”

 

Meanwhile, according to a June 5, 2021 news report by greatneckrecord.com, critics of the law, especially law enforcement, cite the complexity for police in determining whether drivers under the influence of cannabis are impaired. Norwood News reached out to the NYPD for a comment. The agency provided a lengthy extract detailing how the new law has created “sweeping changes to the department’s enforcement of marihuana offenses.”

 

The agency said the key changes are that individuals who are 21 or older may lawfully possess three ounces or less of cannabis, possess higher amounts of cannabis if prescribed by a doctor, give three or less ounces of cannabis to other people who are 21 or over, so long as no compensation is exchanged, smoke cannabis almost anywhere that cigarette smoking is allowed under the NYS Public Health Law, including on sidewalks, on front stoops and other public places.

 

They added that, as a result, smoking cannabis in any of these locations is not a basis for an approach, stop, summons, arrest or search. In approximately 18 months, they said it will be lawful for a person to possess up to 5 pounds of cannabis in their home.

 

Individuals who are 21 or older may not give cannabis to anyone under 21. Persons of age may not drive under the influence of cannabis, smoke cannabis while driving, sell cannabis for compensation, smoke cannabis where cigarette smoking is prohibited such as bars, restaurants, childcare centers, within 100 feet of a school entrance, places of employment and indoor arenas or smoke cannabis in NYC Parks where no smoking signs are posted.

 

Individuals who are under 21 are not permitted to possess cannabis, even in small quantities i.e. 3 ounces or less. However, under the current state of the law, the department said there is currently no mechanism for the NYPD to take enforcement action against a person under 21 who possesses 3 ounces or less. In the future, the NYPD may have the ability to issue a civil summons for such violations. Until that time, possession of 3 ounces or less by a person under 21 cannot be the basis of an approach, stop, summons, juvenile report or arrest.

 

Possession by individuals under 21 of more than 3 ounces is enforceable under Article 222 of the Penal Law. People under 21 can be prescribed medical cannabis by a doctor.

 

While the NYPD does not have a mechanism to enforce against mere possession in small amounts for people under 21, there is an enforcement mechanism for individuals aged 20 and under, who are observed smoking in a place where cigarette smoking is prohibited.  Those individuals may be issued a criminal court summons PL 222.10(1), or a juvenile report as appropriate.

 

Effective immediately, the smell of cannabis alone no longer establishes probable cause of a crime to search a vehicle. This change applies to both burnt and unburnt cannabis. Searches of vehicles related to cannabis enforcement may only be conducted if the driver appears to be under the influence of cannabis AND there is probable cause to believe that the vehicle contains evidence of the impairing cannabis (e.g. smell of burnt cannabis or admission of having smoked recently), a search of the passenger compartment of the vehicle is permissible.

 

However, the trunk may not be searched unless the officer develops separate probable cause to believe the trunk contains evidence of a crime e.g. gun recovered from under driver seat OR a police officer may request consent to search the trunk in compliance with the Right to Know Law. If voluntary consent is given, police may search the areas of the vehicle covered by the consent. If an arrest is made, the vehicle should be “vouchered” pursuant to PG 218-19. The property is seized and the arrestee is provided with a voucher.

 

If a driver exhibits no signs of impairment, but is observed smoking/consuming cannabis while operating a vehicle, or admits to smoking/consuming cannabis while driving, or there is a smell of burnt cannabis in the vehicle that is attributable to the driver, enforcement can be taken. This traffic infraction alone cannot be the basis of a search of the vehicle.

 

If an officer develops Level 2 founded suspicion of criminality during any vehicle traffic violation stop, the officer may ask for consent to search. Passengers observed smoking, admitting to smoking in the car or a smell of burnt cannabis attributable to a passenger may also be subject to enforcement.

 

No person may smoke or vape cannabis inside a vehicle. Anyone observed or admitting to smoking in a vehicle may be issued a criminal court summons.

 

The new law prohibits the possession of cannabis in excess of 3 ounces. Under the new law, a person cannot be charged with the sale of cannabis unless they receive compensation in exchange for it. The Penal Law has been amended to account for illegal sales of cannabis. However, the hand to hand exchange of lawful amounts (3 oz or less) of marihuana, without compensation, to a person 21 or over, is not considered a sale of cannabis.

 

Under the new law, parolees are permitted to use cannabis unless the terms of their parole specifically prohibit it. This means that an officer may not approach, stop or detain a parolee based on their use or possession of lawful amounts of cannabis (3 oz or less).

 

The Office of Cannabis Management will be issuing regulations governing the home growing of cannabis. When those regulations take effect, individuals who are 21 or older will be permitted to grow a maximum of 6 plants at their home (3 mature and 3 immature). Each home is permitted to have no more than 12 plants regardless of how many individuals of 21 years of age or older live in that home.

 

Meanwhile, while Northrup admits the MRTA is still far from perfect, he’s confident it’s a strong start, and that the bill can positively impact thousands of lives, but only if it fulfills its many promises.

 

“If I’ve seen one thing so far in my short time doing policy work, [it] is that once you accomplish something, that’s still half the battle,” he said. “Then you need to make sure that the policy is actually carried out, and that’s a whole other fight.”

 

*Síle Moloney contributed to this story.

 

Editor’s Note: All references to the drug in a previous version of this story, unless used in a quote or in the name of a law have been updated to refer to “cannabis,” as we were informed that use of other words to refer to cannabis is racist. We apologize for any offense caused which was certainly unintended.