Does the punishment match the crime? Legislators debate New York drug policies

As other state legislatures adopt more lenient marijuana policies, New York lawmakers consider policies concerning drugs, stop-and-frisk and more controversial topics.

The New York state of mind tends to be forward-thinking but when it comes to drug reform, the state is far from progressive. Although New York decriminalized minor marijuana possession in 1977, the New York Police Department has discovered a loophole in the law with help from its controversial stop-and-frisk policy — a tactic the NYPD uses to search anyone deemed “suspicious.” New York’s decriminalization law only applies to possession under 25 grams not in public view. When NYPD officers order individuals to empty their pockets under stop-and-frisk, possession becomes a criminal offense.

“When we’re regulating marijuana as a legal product, we’re controlling the potency of it, the form, the marketing, advertising, hours of sale, age of sale."
- Howard Rahtz

On August 12, District Judge Shira Scheindlin ruled stop-and-frisk unconstitutional on the grounds of violating Fourth and 14th Amendment rights. The two Amendments prohibit unreasonable search and seizure and guarantee all people equal protection under the law, respectively.

Data shows that the most stops occurred in low-income areas of the city. In 2012, African Americans and Latinos accounted for 87 percent of all stop-and-frisk encounters but make up just over half of NYC’s population, according to data from the New York Civil Liberties Union. Data from the Division of Criminal Justice Services reveals low-level marijuana possession was still the top cause for arrest in 2012, citing 39,000 arrests.

New York Gov. Andrew Cuomo has since proposed a new decriminalization plan that would deem minor possession in public view a violation instead of a misdemeanor. Violators would be issued a ticket and fined but would not receive a court summons. Cuomo’s bill was approved by the State Assembly but faced opposition in the State Senate — a pattern consistent with the state government’s response to other marijuana reform bills.

If voters want to reform drug laws in their state, they have to increase public interest and put pressure on elected officials. Policies consistent with public opinion reflect a government working in the interests of voters. Recent years have revealed the significant change in public perception surrounding marijuana since President Nixon’s infamous declaration of the “war on drugs” in 1971. Colorado and Washington made marijuana history in November 2012 by legalizing recreational use. In October 2013, a Gallup poll showed 58 percent of Americans say marijuana should be made legal. Reform is not a wishful hope for the distant future. With help from policy makers, vocal citizens are demanding and establishing new laws now.

Like any form of social change, marijuana reform takes time

Laws like Colorado’s Amendment 64 and Washington’s Initiative 502 don’t pass overnight. Both states legalized medical marijuana several years before recreational use. The process is gradual, but progress is evident. California passed the first medical marijuana bill in 1996 and 16 years later, two states legalized ecreational use. Election results reveal changing attitudes toward marijuana reform. “I think there’s decreasing support for the war on drugs, even if the public doesn’t know it’s happening,” said Alex Thompson, a Ph.D. candidate at University of Colorado at Boulder. Thompson works part-time at a marijuana edibles bakery to conduct research for his dissertation on the medical marijuana industry.

President Nixon established the Drug Enforcement Administration (DEA) to lead the fight against drug abuse. “In the early 80s, Nixon had a lot of support for methadone and addiction treatment,” said Dr. Dessa Bergen-Cico, a Certified Addictions Specialist and assistant professor of public health at Syracuse University who teaches courses on drug policy. “We then see that fall by the wayside during the Reagan and Bush administrations where they made it a much more literal war on drugs.”

The DEA classifies drugs, substances, or specific chemicals into five schedules, based on recognized medical use and addiction potential. Schedule I drugs have no medicinal value and are considered the most addictive. This includes heroin, ecstasy, LSD (lysergic acid diethylamide), and marijuana. Schedule II drugs, such as oxycodone, Adderall, cocaine, and methamphetamine, have a recognized medicinal use but are still highly addictive. Much of the misinformation surrounding marijuana stems from its Schedule I status.

Bergen-Cico says the public health field categorizes substances by primary psychoactive property and addiction potential. Interpreting marijuana through this lens challenges the DEA’s classification as a Schedule I substance. “Cannabis has a really low addiction potential and is generally less disorienting than alcohol,” Bergen-Cico said. Yet effective drug policy needs to examine marijuana beyond health benefits and risks. Bergen-Cico calls for “evidence-based drug policy.” Patrick O’Brien, a Ph.D. candidate at UC-Boulder who teaches a sociology course called Drugs and Society, calls for policy that takes other effects into consideration. “Marijuana is a very safe drug. The policy implications are much more harmful to society than the health consequences could ever be,” O’Brien said.

The war on drugs places the country at odds with its citizens

Punitive, mandatory minimum sentences were established to discourage illegal drug activity but had a different result. In 1986, laws were created giving harsher penalties for crack cocaine possession versus powder cocaine. Crack cocaine, which is cheaper and less refined, carries 100 times the weight of powder cocaine. “Our incarceration rates are the highest in the world because of those drug laws,” O’Brien said.

Instead of decreasing illegal drug use, such laws have filled jails and created what O’Brien calls a “permanent of underclass citizens.” Between 1987 and 1995, cocaine and heroin arrests outnumbered arrests from any other drugs, according to data from the Bureau of Justice Statistics. But since 1996, the same year California legalized medical marijuana, marijuana has had the highest number of drug arrests and continues to today.

Individuals with criminal records, especially drug-related offenses, are often ineligible or denied federal assistance programs like welfare, food stamps, and housing assistance. The system of laws and restrictions in place make it very difficult to move back into the legal economy once incarcerated.

Marijuana’s legal and political nature has made it a point of interest for state and federal policy and the illegal drug trade. According to a study commissioned by the Drug Policy Alliance and the Marijuana Arrest Research Project, the NYPD made almost 450,000 arrests for low-level possession between 2002 and 2012. Between 2011 and 2012, the arrest rate dropped by 22 percent, decreasing the number of people booked by 10,000. Perhaps the decline can be attributed to NYPD Commissioner Raymond Kelly’s 2011 memo telling officers to stop arresting people for public possession if displayed at the NYPD’s order. Yet this hardly makes up for the 600 percent increase in NYPD stops since Kelly took office in 2002. “The drug funding from the federal government really couldn’t be sustained without marijuana prohibition — there aren’t enough drugs to go after,” O’Brien said. Simply put, marijuana prohibition funds the 42-year-old war on drugs.

Marijuana and the illegal drug trade

Marijuana also provides a substantial cash flow to the illegal drug cartels. According to Howard Rahtz, a retired Cincinnati police captain with a background in drug treatment and interdiction, marijuana accounts for roughly 60 percent of the cartels’ revenue. “It’s their cash cow,” Rahtz said. “If we’re going to do something about the illegal market, we’re going to need to do something about marijuana.” Prohibition inflates the cost of marijuana because of the law enforcement and risk involved. Heavier enforcement means higher inflation, making marijuana more lucrative and desirable to the cartels. “When you have something that should cost pennies costing thousands of dollars, you’re going to get people who are willing to do whatever it takes to control that market, control that drug,” O’Brien from UC-Boulder said.

Legalizing marijuana would take funding out of the black market and into the legal economy, Rahtz said, and the 1920s alcohol prohibition should be the primary lesson for marijuana legalization. “There’s a historian who said when the federal government implemented alcohol prohibition, they took billions of dollars from the legal economy that was going to farmers, distilleries, breweries, wineries, truck drivers, bars, and restaurants and moved those billions of dollars into the hands of murderers and thugs,” he said. “What we’re facing now is the opposite. I think what we ought to do is take that billions of dollars currently in the hands of murderers and thugs, to use his language, and move it into the hands of the legal economy — farmers, growers, retail people, the whole works.”

The fears of legalizing and the fears of not legalizing

Yet many Americans remain unconvinced marijuana is a safe substance. As with any other drug, potential hard to children is one of the biggest concerns. “Cannabis certainly can be addictive,” SU’s Bergen-Cico said. “People can do too much of anything and anything that distracts from priorities — school, work, family — is not good.” On July 27, 2012, Christina Blair, a Colorado middle and high school teacher, blogged on The Huffington Post calling for voters to vote “no” on Amendment 64. “I have witnessed first-hand how the effects of this drug have harmed my students,” writes Blair. She goes on to describe how marijuana affected one of her students, whose decision to use drugs caused his grades to drop. “More pot means more pot—and more availability to children,” Blair adds later in the post. “There are serious problems with allowing unlimited supplies of marijuana to be sold for recreational use in Colorado, especially when it comes to kids.” Blair, a mother of four, voiced concerns parents share across the nation. To Blair, legalization makes it easier for kids to obtain marijuana, leading them down the rabbit hole to join the lazy dropouts who don’t contribute to society.

Howard Rahtz, a father of three, thinks legalization would have the opposite effect. The University of Michigan’s 2007 survey of high school students and drugs found it’s easier for students to get illegal drugs than alcohol. A 2011 survey by the National Institute on Drug Abuse showed high school seniors were more likely to smoke marijuana than cigarettes. “[The surveys] show that the regulated, legal market can be effective in reducing use,” Rahtz said. “It tells me that the legal system is more effective than the illegal system.”

Over the years, marijuana legalization has shifted from a Cheech and Chong fantasy to a viable drug reform plan. Rahtz suggests tax revenue from legal marijuana be put toward drug addiction treatment. “Basically, it becomes a user tax,” he said. “The people who are using pay for their own treatment ahead of time.” This plan addresses Nixon’s original intention behind the war on drugs — to treat drug abuse.

John Liu, New York City Comptroller, released a report in August that outlines how NYC could tax and regulate legal marijuana. Based on NYC tax rates, Liu projects revenues from legal marijuana would yield $400 million annually. In 2011 New York collected $1.68 billion from tobacco tax revenue and $253,691 million from alcohol tax revenue, according to Urban Institute’s and Brooking Institute’s Tax Policy Center. Liu estimates misdemeanor marijuana arrests cost NYC $1,700 per arrest and establishing a legal market would save $31 million in police and judicial expenditures. He recommends the savings and added revenues be put into City University of New York schools, cutting tuition in half.

Liu’s plan, whether intentional or not, would benefit low-income residents and attempt to disrupt the “permanent of underclass citizens” UC-Boulder’s O’Brien said unjust laws has created. Though likely to remain the primary targets of stop-and-frisk, African Americans and Latinos would not face a misdemeanor for marijuana possession, would not build a criminal record, and would not experience the snowball effects that accompany incarceration. Halving CUNY tuition makes higher education more accessible for New York residents, creating more job opportunities for more people.

Moving marijuana from the black market to the legal economy allows for controlled regulation and takes revenue from the drug cartels, reduces street violence associated with drug trafficking and sales, and establishes legal (enforceable) rules for sale. “When we’re regulating marijuana as a legal product, we’re controlling the potency of it, the form, the marketing, advertising, hours of sale, age of sale,” Rahtz said.

Ironically, the best way to get kids to say no to drugs is if voters say yes.

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