When the 2019 legislative session began, many New Yorkers were excited to hear Gov. Cuomo include the much-anticipated legalization of adult-use cannabis in his budget priorities. We now know that the governor’s plan – set forth in the Cannabis Regulation and Taxation Act (CRTA), a budget bill – would remove marijuana and marijuana-related products from classification as illicit drugs under New York’s Controlled Substance Act, would reclassify certain crimes as violation-level offenses, and would reduce some criminal penalties.
But there is much more we need to know as amendments are being made to CRTA during the 30-day period.
While Gov. Cuomo’s recent statements about his criminal justice priorities for 2019 stressed that black and brown communities have been disproportionately impacted by low-level marijuana arrests, there is limited indication in CRTA just how he would go about repairing the damage. In fact, he recently stated that he did not see any real need to direct revenues from legalized marijuana to any specific program or community.
The fact of the matter is that New York has seen countless young people – black and brown young men in particular – fall to the wayside due to the inequitable and regressive nature of our state’s drug policy and its “war on drugs,” including marijuana. The damage to them – and to our city – is immeasurable. Marijuana prohibition policies have historically been reinforced via the folk tale that cannabis is a gateway drug.
Black Communities Have Historically Borne the Brunt of Punitive Drug Laws
We all know what happened next. The drug war resulted in the passage of punitive laws; black and brown people were the casualties. Over the past 20 years, we arrested more than 800,000 individuals for possession of marijuana, saddling many of them with a criminal record. New York has effectively become the marijuana arrest capital of the world. In 2016 alone, nearly 23,000 people were arrested statewide for possession of marijuana, the overwhelming majority of them people of color. As things now stand, the criminal records that result from possession of even a small amount of marijuana last a lifetime, and the civil consequences they bring with them do, too.
In New York State, having a criminal record can negatively impact nearly all aspects of life, including employment, a license to practice a trade and housing. And except in very limited circumstances, these criminal records can never be erased.
We need to fix this; the time is now. There is impetus on the state and federal level. Gov. Cuomo has acknowledged inequities in our criminal-legal system many times, including his 2018 State of the State Address, where he noted that New York has “two criminal justice systems: one for the wealthy and the well off, and one for everyone else.” And with Congress’ passage of the First Step Act, along with significant state legislation in play, the ongoing effects of encounters with punishment – particularly experienced by communities of color, poor and working people – are increasingly coming into focus. Across New York State and the country at large, there is an emerging agreement that people with conviction histories who have “paid their debt to society” should be able to clear their records.
Automatic Expungement of Past Marijuana Convictions
If Gov. Cuomo wants to promote fair and meaningful criminal systems reform in New York that builds an equitable justice system, his plan must include more than allowing certain people in tightly limited circumstances to ask for convictions in their distant past to be sealed, as New York’s general sealing law – C.P.L. §160.59 – currently provides. This legislation puts the burden of having the record sealed on the individual.
Rather, a truly equitable and forward-looking remedy would be automatic expungement, which would destroy or tightly wall off the records and free the individual from the burdens they create. When New York legalizes marijuana, past convictions that relate to now-legal behavior should be expunged. And the onus should be on the state – which created this history – to clear it automatically.
Continuing to punish an individual based on their past criminal conviction makes little sense now and will make even less sense once marijuana is legal. With adult-use cannabis legislation almost certain to pass this session, we have the opportunity to work serious, positive change by engaging such an automatic process. Automatic expungement is the right way to stop punishing New Yorkers, while helping to repair harms caused by criminal convictions that some have borne for decades. There’s support for it in communities across the state.
This is but a first step. Automatic expungement is a concept New York – including the Governor and the legislature – must embrace broadly. Requiring this treatment for past marijuana convictions will help get us there.