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Data Show How Inequities in Marijuana Enforcement Disproportionately Harm Black and Latino Communities

New York will use insight from the Data Collaborative for Justice’s new report to shape policy

(Mathew Sumner/Associated Press file)

The Data Collaborative for Justice (formerly Misdemeanor Justice Project), housed at John Jay College, is nationally recognized for its groundbreaking research on misdemeanor arrest trends in New York City and New York state. The group’s research has had a direct impact in shaping enforcement policy in the city and state, and has become an important resource for law enforcement and policymakers.

Its recent report, Trends in Marijuana Enforcement in New York State, 1990 – 2017,” catalogues nearly three decades of marijuana-related arrests across New York, the first examination into marijuana enforcement trends in the state.

At a press conference to release Trends in Marijuana Enforcement,” Alphonso David, Counsel to Gov. Andrew Cuomo, spoke about what the Governor’s office has learned from The Data Collaborative for Justice’s report and how they will use this data to shape policy.

Mr. David’s remarks are available in their entirety below.


Rethinking marijuana policy

Alphonso David, Counsel to Governor Andrew Cuomo, talks about what the Governor’s office has learned from The Data Collaborative for Justice’s report on trends in marijuana enforcement and how they will use this data to shape policy.

First, I would like to acknowledge John Jay College for hosting this event, The Misdemeanor Justice Project for doing such fantastic work on the report, the Laura and John Arnold Foundation (now Arnold Ventures) for supporting this and so much other criminal justice work, Benjamin Tucker, of course, the first deputy commissioner at the NYPD and Jeremy Travis, executive vice president of criminal justice at Arnold Ventures. 

There are two people in the audience I need to recognize. The first is Axel Bernabe, who’s an assistant counsel who works in my office, who has been spending an extraordinary amount of time working on this issue. The second person is Jason Starr, who is an assistant counsel in my office as well, and he has been working on these issues day in and day out making sure that we have the most informed, comprehensive policy to advance. 

As you heard a few minutes ago, despite a dramatic decline in the rate of marijuana misdemeanor arrests for the past decade, unfortunately there remains significant racial disparities in the rates of arrest. So in short, we may be arresting and charging less people with marijuana misdemeanor possession, but we are increasingly and disproportionately arresting and charging more minorities. Politically there is some consensus that our public policy on public safety should focus more on offenses that directly affect people, particularly violent crime. This consensus has driven significant reforms in law and policy at both the state and the federal levels. Marijuana decriminalization, the Rockefeller drug law reforms, the closure of many prisons here in New York state, the federal sentencing reform, and the list goes on and on. 

However this shift in public attitudes and policies highlights some of the greatest areas of concern with regard to system inequities, and the data in this report illuminates one of those major areas of concern, marijuana enforcement. 

Marijuana was decriminalized in NY state in 1977 when offenses related to marijuana was removed from the controlled substances provisions of the penal law, and it was placed in a different statutory scheme with what was intended to be less serious penalties. 

However as this report unfortunately shows, in the period over the last 20 years there has been areas of significant inconsistency in enforcement among New York City, upstate cities, and the rest of the state and significant disparities in enforcement by age, by race, and by ethnicity. A few of the key findings with some historical backdrop provide some context and again highlight why it’s so important that our public policy be driven by data. 

Arrest rate for marijuana possession for Black men and women in New York City compared with white men and women
Arrest rate for marijuana possession for Black men and women in upstate New York compared with white men and women
Arrest rate for marijuana possession for Black men and women ages 21-24 in upstate New York compared with white men and women

Since 1990 marijuana arrest rates have increased significantly across the state, as you heard. NYC has had the highest misdemeanor marijuana arrest rates for a majority of the time period compared to upstate cities and the rest of the state. And you can conclude, Well, that makes sense because the majority of the people live in NYC.” A majority of the misdemeanor marijuana enforcement is related to marijuana possession, not to marijuana sale.

There is some geographic variation in enforcement in NYC, predominantly public view or public burn. In upstate cities, it is more evenly distributed across the three possession penal codes, and then the rest of the state is predominantly public view or public burn. But across all the geographic areas, Black men and women and Hispanic men and women are unfortunately being faced with higher rates of arrest for misdemeanor marijuana possession compared to their white counterparts. The difference in arrest rates for Blacks relative to whites was higher in upstate New York cities than in the rest of the state. In New York City, Black men and women were arrested for marijuana possession at a rate eight times that of white men and women and in upstate cities at a rate of 12 times that of white men and women. But even more significantly, Black men between ages 21 and 24 are arrested at a rate of more than 20 times that of white counterparts in upstate cities. These are the young people that we need to protect and in the most need of direction and support. These rates of arrests have been consistently increasing over the period of the study, despite an overall ultimate decline in the rate of misdemeanor arrest and a dramatic shift in the cultural attitudes regarding marijuana.

What does this tell us? What does all of this information tell us and how should we use it in developing, evaluating, and potentially advancing public policy? Regardless of which side of the aisle you’re sitting on, we should all be able to agree on one fundamental principle. Marijuana arrests and convictions have a significant direct and collateral impact on the lives of people that are affected. We should all be able to agree on that.

New York Gov. Andrew Cuomo, left, with Counsel Alphonso David. Their Cannabis Regulation and Taxation Act would be a first in the nation and involves an integrated regulatory approach to cannabis in three areas: medicinal, adult use, and industrial wellness. (Mike Groll/​Associated Press file)

Further, low-level marijuana enforcement places significant strain on the criminal justice system with very little impact on public safety. There are also public policy costs, including significant impact on immigrant New Yorkers or labor market as well as public health. These realities and the reality that an increasing number of neighboring jurisdictions have legalized or are considering legislative proposals to legalize marijuana, the possession and/​or the sale, led the governor to advance a proposal a few months ago. It seems like a few months ago, but actually it was a few weeks ago. That gives you a little insight into my brain. It was only a few weeks ago but it feels like months and months ago because we’ve been working on this for so long. But those realities actually led the governor to advance a proposal to comprehensively regulate cannabis, including the establishment of a regulated commercial market that permits the sale and the possession of cannabis for recreational and therapeutic use by adults.

In New York state, we previously legalized the use of medicinal cannabis through legislation that’s called the Compassionate Care Act. This year, our proposal, which is referred to the Cannabis Regulation and Taxation Act, it sets up the first in the nation, integrated regulatory approach to cannabis in three applications: one, medicinal; two, adult use; and three, industrial wellness.

It brings together existing law and policy governing medical cannabis and industrial hemp, which is existing law in New York. And then it sets forth an innovative model for developing and regulating the commercial market for adult-use recreational cannabis. The legislation also creates the Office of Cannabis Management to oversee the application and development of this new, integrated, regulatory framework.

As existing policies, opinions, methodologies, approaches are being challenged, we must first be sensitive to the concerns that are being raised in our communities, but we must be driven by the data.

Most significantly, our proposal attempts to address some of the disparate consequences demonstrated in the data in this report. In addition to reclassifying cannabis offenses in the penal law, to permit possession for personal use, it automatically seals prior marijuana offenses. It provides for re-sentencing for felony and misdemeanor possession and sale to align with these new classifications. And it creates robust opportunities for participation in the new market, for members of the communities who have been disproportionately harmed by the enforcement of marijuana prohibition. I’m speaking specifically about Black and Latino communities.

We are at yet another interesting crossroad as we further modify and reform our criminal justice laws and regulations, and the lives of real people are affected. That’s what I want us to think about as we talk about these issues. There are real men and women that are affected upstate, downstate, in every part of this state and in fact in every part of this country. I remember discussions when we embarked on the Rockefeller drug reforms. There was a lot of fear and anxiety to match the robust advocacy for change. And that discussion advanced, I would submit, primarily because of the data. People have to look at the facts. This is no different. As existing policies, opinions, methodologies, approaches are being challenged, we must first be sensitive to the concerns that are being raised in our communities, but we must be driven by the data.

Good public policy must be informed by good data, and today’s report confirms our approach regarding the regulation of cannabis. We believe that our integrative, fully regulated, culturally informed model is a strong path forward and a model for addressing what continues to be a key driver of disparity in our criminal justice system. The lives of real people are at risk. And we have to pay attention and we have to be driven by the data. Thank you.