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Decriminalization

  • by David Holland, Executive Director of Empire State NORML October 9, 2019

    There has been some confusion and misinformation circulating about what New York’s latest expansion of marijuana decriminalization means and what impact it will have on criminal prosecutions going forward. 

     

    The Short Synopsis of the Offenses and Sentences 

    There are 2 provisions of New York’s Penal Law that relate marijuana-related offenses. Penal Law 220 relates to “controlled substances” offenses which include possession of “concentrated cannabis” which is defined as being more than 2 1/2% by volume of the total volume of cannabis seized. PL 220 then imposes escalating grades of punishment depending on the weight of concentrated cannabis. Simple possession of a very small amount of ‘concentrated cannabis’ is an A misdemeanor punishable by up to a year in jail. But, possession of just 1/4 ounce of concentrated cannabis is a D Felony and punishable by up to 7 years imprisonment. 

    Penal Law 221 is far more lenient as it specifically relates to cannabis flower penalizing possession based on the pure weight of the flower (minus root balls, stems, stalks, seeds, etc), not its chemical potency like PL 220 does. It too has escalating grades of punishment, but as of August 28, 2019, now permits much greater amounts to be possessed up to 2 ounces before a misdemeanor crime is actually committed. Possession of flower does not become a felony offense unless the defendant is in possession of more than 8 ounces with a corresponding maximum jail term of 4 years. 

    As of August 28, 2019, public consumption and possession of up to two ounces of cannabis flower is punishable as a marijuana possession violation (not a crime) and the sentence of that offense is a monetary fine up to $200 under Penal Law 221. However, possession or public consumption of wax, shatter, hashish, and/or cannabis oil which is more than 2 1/2% THC by volume, otherwise possessed in any amount, is still punishable as a “controlled substances” crime under Penal Law 220 which results in dramatically different consequences. 

    In addition to the potential length of incarceration, a significant difference between those two penal provisions under which marijuana-related offenses may be charge is that when charged under Penal Law 221, the criminal defendant may, over the objection of the prosecutor, request pursuant to Criminal Procedure Law 170.55 or 170.56 asking the court to adjourn the case in contemplation of dismissal (“ACD” or “MACD”). That means that if the person is not rearrested in a 6-12 month period, then the charges will automatically dismiss and all the records sealed as if the case never happened. 

    By contrast, a criminal defendant charged with a controlled substances offense for possession of “concentrated cannabis” (hash, oil, wax, shatter, etc) under Penal Law 220 cannot ask the Court to adjourn the charges in contemplation of dismissal and the court cannot do so without the consent of the Prosecutor. So, the criminal defendant is really at the mercy of the Assistant District Attorney who is handling the case. Worse, if convicted of the controlled substances misdemeanor under PL 220, in addition to the risk of incarceration, there are mandatory fines and surcharges as well as DNA fees and sample collections that can be imposed. Such convictions may not be subject to the newly enacted expungement provisions as they are “controlled substances” offenses and not “marijuana” offenses which were the sole targets for expungement under the new decriminalization law. 

     

    Legal Provisions

    New York Penal Law defines all of the violations and crimes that are punishable in New York State. Drug-related offenses fall under those provisions of the penal code that considered offenses against Public Health and Morals. Those controlled substances which constitute drug offenses are defined and identified in the Public Health Law. 

    Under the Public Health Law 3302(4) “Concentrated Cannabis” is defined as: 

    (a) The separated resin, whether crude or purified, obtained from a plant of the genus Cannabis; or 

    (b) a material, preparation, mixture, compound or other substance which contains more than two and one-half (2 1/2%) by weight of delta-9 THC… 

    Under PHL 3302(5) a “Controlled Substance” means any substance listed in section 3306 of the PHL. “Marihuana” is a Schedule I controlled substance under PHL 3306(d)(13). Under PHL 3302(21) “Marihuana” means all parts of the plant of the genus cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, mixture, or preparation of the mature stalks (except extracted resin therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. 

    The distinguishing feature between “marihuana” and “concentrated cannabis” is greater than 2 1/2% concentration by volume requirement. Once that concentration threshold is exceeded, the arrestee may be charged with misdemeanor possession of either a controlled substance offense under PL 220 or the more lenient weight-based provisions of PL 221 that specifically pertain to marijuana. 

    The 2 1/2% potency threshold is by volume, so unlike other drugs, the medium in which it is contained, ie, the glass vial, pipe, etc., should not be weighed to raise the potential penalty since the inclusion of the weight of the medium may in fact reduce the potency determination as the wax, oil, etc, thereby reducing the concentration calculation. 

    While the Public Health Law 3306 and Penal Law 220 and 221 each address cannabis oil derived from the stalks and stems (but not the seeds), and resin, the determining feature is the 2 1/2% by volume threshold of demarcation to constitute a controlled substances offense. With the passage of the 2018 Farm Bill, any oil or flower with less than 0.3 THC by volume , is now deemed to be legal and that determination will be binding on the states due to Congress’ ‘commerce clause’ and power to regulate interstate commerce. 

    That means that in New York State, personal possession of any flower or oil which falls between 0.3% THC and 2 1/2% THC by volume should be prosecutable only under the more lenient provisions of Penal Law 221. 

    The sentences for each provision of the Penal Law are found in Penal Law 70.00 et seq. 

  • by Paul Armentano, NORML Deputy Director August 28, 2019

    Legislation reducing marijuana possession penalties and facilitating the expungement of past cannabis convictions took effect today.

    Assembly Bill 8420-A reduces the penalty for minor marijuana possession violations (up to one ounce) to a $50 fine. It also amends penalties for offenses involving the possession of more than one ounce but less than two ounces of cannabis from a criminal misdemeanor (formerly punishable by up to three months in jail) to a non-criminal violation punishable by a $200 fine – regardless of an offender’s prior criminal history.

    The new law also amends the classification of offenses involving the use or possession of marijuana in public from a criminal misdemeanor, formerly punishable by up to 90 days in jail, to a fine-only offense. In New York City, police have made over 700,000 arrests for ‘public view’ violations. Eight-six percent of those arrested were either Black or Latino.

    Finally, A. 8420-A establishes procedures to allow for the automatic expungement of criminal records specific to crimes involving the possession of 25 grams or less of marijuana. Several hundreds of thousands of New Yorkers are eligible for expungement under the plan.

    Assembly Bill 8420-A was negotiated in the closing days of the 2019 legislative session after lawmakers failed to agree on provisions of a marijuana legalization measure.

  • by Paul Armentano, NORML Deputy Director August 5, 2019

    Marijuana LawsDemocratic Gov. John Carney has signed legislation amending criminal penalties for juveniles who violate the state’s marijuana possession laws.

    Senate Bill 45 eliminates criminal penalties for low-level marijuana possession offenses (up to one ounce) for those under the age of 21. Instead, juvenile offenders will face a fine-only civil penalty. Those with past criminal convictions for juvenile offenses will be eligible for the mandatory expungement of their records.

    The new law took effect upon signing.

    Lawmakers in 2015 enacted separate legislation decriminalizing marijuana possession penalties for those over 21 years of age. However, that law left in place criminal sanctions for juvenile offenders.

  • by Kevin Mahmalji, NORML Outreach Director July 26, 2019

    The City of Jacksonville, Florida could join a growing list of cities around the country that have embraced a more pragmatic approach for dealing with marijuana-related offenses on the local level. Currently more than a dozen Florida municipalities have decriminalized the possession of 20 grams or less of marijuana including: Alachua County, Broward County, Cocoa Beach, Hallandale Beach, Key West, Miami Beach, Miami-Dade County, Orlando, Osceola County, Palm Beach County, Port Richey, Tampa, Volusia County, and West Palm Beach County.

    Jacksonville Residents Click Here to Send a Message to your Council Representatives 

    Citing concerns about the collateral consequences of a marijuana charge and the disproportionate impact marijuana prohibition continues to have on communities of color, Council Member Garrett Dennis recently introduced the, “Jacksonville Civil Citation for Small Quantity Marijuana Possession Ordinance.” If approved, the ordinance would impose a $100 fine for possessing 20 grams or less of marijuana instead of jail time. 

    “During my reelection campaign, I spoke to many citizens whose lives were thrown into a downward spiral due to possessing minimal amounts of marijuana. Families were in debt because of legal issues, loss of employment or the inability to secure gainful employment; based on these misdemeanor arrests,” said Council Member Dennis. 

    Read more from First Coast News

    To support this effort, Council Member Dennis has announced a series of community meetings. Each meeting is free to attend and open to the public. 

    Date:  Saturday, July 27, 2019                                         

    Time: 10:30 a.m.

    Location: South Mandarin Library, 12125 San Jose Blvd., Jacksonville, FL 32223

    Date: Monday, July 29, 2019

    Time: 6:00 p.m.

    Location: Bennie Furlong Senior Center, 281 19th Ave S, Jacksonville Beach, FL 32250

    Date: Tuesday, July 30, 2019    

    Time: 6:00 p.m.

    Location: Legends Center, 5130 Soutel Drive, Jacksonville, FL 32208

    Date: Monday, August 5, 2019  

    Time: 6:30 p.m.

    Location: Webb Wesconnett Library, 6887 103rd Street, Jacksonville, FL 32210

    Click Here to Review NORML’s Decriminalization Report

           Marijuana policy should be evidence based. Dispel the myths with the NORML Fact Sheets. Follow NORML on FacebookInstagram and Twitter and become a member today!

                                                                                                                              

  • by NORML July 10, 2019

    Marijuana HempMembers of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security heard expert testimony today challenging the federal government’s failed policy of cannabis prohibition. The hearing, entitled “Marijuana Laws in America: Racial Justice and the Need for Reform,” debated the merits of various alternative policy options – including abolishing cannabis’ longstanding Schedule I criminal status under federal law.

    The hearing marked the first time in decades that members have explicitly entertained debate regarding the need to end the federal criminalization of cannabis and to deschedule (remove) the plant from the Controlled Substances Act. You can watch the full hearing below:

    Witnesses testifying at yesterday’s hearing were Dr. David Nathan of the group Doctors for Cannabis Regulation, Marilyn Mosby, Esq., State’s Attorney for Baltimore City, Dr. G. Malik Burnett (formerly of the Drug Policy Alliance), and Neal Levine, Chief Executive Officer of the Cannabis Trade Federation. Their written testimony is available online here.

    Members of Congress in attendance at the hearing included: Reps. Karen Bass (D-CA), David Cicilline (D-RI), Ben Cline (R-VA), Stephen Cohen (D-TN), Doug Collins (R-GA), Madeleine Dean (D-PA), Ted Deutch (D-FL), Matt Gaetz (R-FL), Sheila Jackson-Lee (D-TX), Hakeem Jefferies (D-NY), Ted Lieu (D-CA), Lucy McBath (D-GA), Tom McClintock (R-CA), Jerrold Nadler (D-NY), Debbie Mucarsel-Powell (D-FL), and Greg Stube (R-FL). Several members, including Reps. Cohen and Lieu, concurred with witnesses’ testimony that Congress should completely remove the cannabis plant from the federal Substances Act.

    Committee members were broadly united in their support for legislation to address federal prohibition in some form.

    In her opening comments, Committee Chairwoman Karen Bass (D-CA) said, “The war on drugs was racially biased from its inception and has been carried out in a discriminatory fashion with disastrous consequences for hundreds of thousands of people of color and their communities.”

    Other members echoed similar sentiments:

    “Marijuana should be an issue of personal choice and public health” – Chairman Jerry Nadler (D-NY)

    “I think marijuana should be completely taken out of the controlled substance act…Everything in politics seems impossible until it happens . . . Keep on fighting and I believe we can get this done.” – Rep. Ted Lieu (D-CA)

    “[Marijuana decriminalization] may be one of the very few issues upon which bipartisan agreement can still be reached in this session.” – Rep. Tom McClintock (R-CA)

    A coalition of social advocacy groups – including NORML, the ACLU, The Leadership Conference on Civil and Human Rights, Human Rights Watch, The Immigrants Legal Resource Center, the Center for Law and Social Policy, the Drug Policy Alliance, the Lawyers’ Committee for Civil Rights Under Law, Students for Sensible Drug Policy and the Center for American Progress – released a joint Statement of Principles to coincide with the hearing. The Statement, which was entered into the record, highlights legislative priorities and provides Congress with a roadmap for ending America’s ongoing policy of cannabis criminalization.

     Commenting on the hearing, NORML Political Director Justin Strekal said: “For the first time in a generation, members of Congress engaged in a candid conversation that acknowledged the failures of marijuana prohibition in the United States, how this policy has adversely impacted tens of millions of Americans, and how it must be reformed at the federal level.”

    He added: “The ongoing classification under federal law of cannabis as a Schedule I controlled substance – a categorization that treats it in the same manner as heroin – is intellectually dishonest and has been scientifically debunked. It is high time that Congress address this Flat Earth policy and move forward with a plan that appropriately reflects marijuana’s rapidly changing cultural status in America.”

    NORML Executive Director Erik Altieri added, “After nearly a century of prohibition, it is clear this policy has been an absolute failure and a national disgrace. All we have to show for the war we have waged on marijuana is the egregious harms it has wrought upon tens-of-millions of our fellow citizens. Congress must act swiftly and begin to remedy the pain caused by the criminalization of marijuana. The only real federal solution to this problem is the full descheduling of cannabis from the Controlled Substances Act. This would allow us to stop ceding control of the marijuana market to the illicit market and allow state governments the opportunity to pursue alternative regulatory policies, free from the threat of federal intervention or prosecution. The American public is overwhelmingly ready to legalize marijuana, their elected officials in Washington need to finally start representing the will of the people.”

    (PS: Did you see that, in honor of this hearing and all the progress we are making, our board member Rick Steves is offering to match ALL donations this week up to $40,000? Help us keep the fight going and double your impact today by donating HERE.)

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