Ever since Colorado and Washington became the first two states to approve marijuana legalization initiatives in 2012, additional states have joined them in each biennial election that has followed. And 2020 could be a banner year for cannabis on the ballot.
There are at least 16 states where advocates believe marijuana measures could go before voters next year—some considering full-scale recreational legalization while others would focus on medical cannabis.
Some of these would be citizen-led voter initiatives where activists collect signatures to qualify a measure for the ballot, while others would be referendums that lawmakers place before voters.
“Since the first adult-use legalization ballot initiative victory in 2012, the marijuana reform movement has successfully maintained its momentum,” Matthew Schweich, deputy director of the Marijuana Policy Project, said. “For four elections in a row there has been a legalization victory at the ballot box, and the upcoming election could deliver more victories in one day than ever before.”
Of course, not every initiated effort will end up securing enough funding, or formulating solid enough campaign plans, to collect sufficient signatures to qualify their measures for voters’ consideration on Election Day—but these are all states where activists or lawmakers have talked seriously about putting cannabis questions on ballots.
It’s not feasible to list every measure that activists took the modest trouble to initially file, and this overview looks primarily at efforts that seem most poised to advance. This post also doesn’t include the long list of states that might legalize marijuana through actions by lawmakers, as opposed to citizens via the ballot—which will be the focus of a separate piece.
In alphabetical order, here’s a comprehensive overview of the states where marijuana could be on the ballot in 2020.
Voters in Arizona narrowly rejected a marijuana legalization measure in 2016, thanks in part to sizable campaign contributions from the pharmaceutical industry. In 2020, though, the state’s medical cannabis companies will be working to pass an initiative making marijuana legal for adults.
The effort, known as Smart & Safe Arizona, would allow people 21 and older to possess, consume, cultivate and purchase cannabis from licensed retailers. It would also create a pathway for individuals with prior convictions to have their records expunged, and it proposes using some tax revenue from legal sales to invest in communities disproportionately impacted by prohibition.
Dispensary chains MedMen, Harvest Health and Recreation and Curaleaf Holdings are helping to fund the campaign. Advocates must collect 237,645 valid signatures from voters by July 2 in order to put the measure on the ballot.
In 2016, Arkansas voters approved a constitutional amendment allowing patients to have legal access to medical cannabis. Now, activists are floating separate measures to more broadly end marijuana prohibition and expunge past records.
In order to place the measures on the ballot, Arkansans for Cannabis Reform must gather 89,151 signatures by July 3, including required minimums in at least 15 counties.
Under the legalization proposal, adults over 21 would be allowed to to possess up to four ounces of marijuana, two ounces of cannabis concentrate and edible products containing cannabis with THC content of 200 mg or less. They could also cultivate up to six cannabis seedlings and six cannabis flowering plants for personal use.
A system of legal and regulated sales would be created, with tax revenue funding the program’s implementation, public pre-kindergarten and after school programs as well as the University of Arkansas for Medical Sciences.
Under the separate expungements measure, people with certain prior marijuana convictions would be able to petition courts for relief, including release from incarceration, reduction of remaining sentences and restoration of voting rights.
Despite the advancement of marijuana legalization legislation through several General Assembly committees this year, lawmakers weren’t able to form the consensus needed to get a bill to the desk of supportive Gov. Ned Lamont (D).
But while Connecticut doesn’t have the initiative process where activists can collect signatures to place a question on the ballot, some elected officials have floated the idea of advancing a referendum that would let voters weigh in on ending prohibition.
Most activists would prefer that lawmakers go ahead and just pass a legalization bill—because running a public education campaign to ensure a ballot measure passes would be expensive at a time when resources are needed in other states. A general referendum question would also require subsequent implementation legislation, and even putting it on the ballot in time for 2020 would take a supermajority of 75 percent of legislators.
Florida voters approved a constitutional amendment to legalize medical cannabis in 2016. Now, a group called Make It Legal Florida is working to place a full-scale marijuana legalization measure on the key swing state’s 2020 presidential ballot.
The proposed amendment to the state constitution would allow adults 21 and over to possess up to 2.5 ounces of cannabis. Existing medical marijuana dispensaries would be permitted to sell marijuana to adults. While the measure doesn’t mention a licensing system to establish separate recreational shops, lawmakers will likely enact detailed regulations should it pass, as they did with the prior medical cannabis measure.
The campaign is being backed by cannabis companies such as MedMen and Parallel (formerly known as Surterra Wellness).
A separate group, Regulate Florida, recently acknowledged that its lesser-funded effort wouldn’t be be able to successfully collect enough signatures to qualify for the ballot.
Idaho is one of only a handful of states in the U.S. that doesn’t even allow patients to access CBD medications with low-THC content. That could change, however, under a proposed medical marijuana ballot measure for which activists are currently collecting signatures.
The Idaho Cannabis Coalition’s proposal would let approved patients and their caregivers possess up to four ounces of marijuana. A system of licensed and regulated growers, processors, testers and retail dispensaries would be established.
Patients would not be allowed to grow their own medicine unless they qualify for a hardship exemption for those who have have a physical, financial or distance difficulty in acquiring marijuana at a dispensary. Those patients could grow up to six plants.
Organizers need to collect 55,057 valid signatures from voters in order to qualify the measure for the ballot.
In September, activists filed what they believe are more than enough signatures to qualify a medical cannabis measure for Mississippi’s 2020 ballot.
If the initiative is approved, patients with any of 22 conditions—including cancer, chronic pain and post-traumatic stress disorder—be allowed to possess up to 2.5 ounces of cannabis per 14-day period.
The secretary of state is expected to announce whether organizers collected a sufficient number of signatures for ballot access early in 2020.
Voters in the Show Me State approved a medical cannabis measure in 2018.
Now, activists are looking to expand on that with a broader marijuana legalization. Several different proposed measures to end cannabis prohibition have been filed with the secretary of state, but the campaigns at this point seem to be operating largely under the radar, so it remains to be seen whether any group will have the funding needed to mount a successful signature gathering drive.
Last year three separate medical cannabis measures ended up qualifying for the ballot, but two were rejected by voters.
Montana already has a medical cannabis program, and activists are looking to expand that to include legal adult use of marijuana in 2020.
The group New Approach Montana is currently in the process of drafting two separate legalization measures—one constitutional and one statutory.
The details of the proposals aren’t yet publicly available, but the statutory proposal will need roughly 25,500 valid voters signatures to qualify for ballot access, while the constitutional amendment would require nearly 51,000 signatures.
The national groups Marijuana Policy Project and New Approach PAC are backing the effort.
A separate group, MontanaCan, has already filed its own legalization proposal.
While legislative leaders in the Garden State, along with Gov. Phil Murphy (D), had hoped to simply pass a bill legalizing marijuana this year, the votes didn’t materialize. Instead, lawmakers decided to put the question of ending cannabis prohibition directly before voters.
Under the referendum adopted by the Senate and Assembly, the November 2020 ballot will contain a question that reads, “Do you approve amending the Constitution to legalize a controlled form of marijuana called cannabis?”
If the proposed constitutional amendment is approved, lawmakers would then get to work adopting regulations for the legal cannabis industry.
Gov. Andrew Cuomo (D) put marijuana legalization language in his budget submission earlier this year but, despite support for the idea from leading lawmakers, disagreement over particulars such as how to spend tax revenue meant that the proposal didn’t get over the finish line.
Indications are that Cuomo and lawmakers will try the legislative route again in 2020, but the governor has floated the idea of referring the question to voters at the ballot box.
“The opposition Senate position is there is no state that has passed it without a referendum. It’s never been done just by the legislature,” he said in a radio interview this year. “I believe Jersey may be moving to a referendum also, but Massachusetts, et cetera, the legislature acted after a referendum. So that’s what the senators who oppose it say—they think it’s an overreach by the legislature.”
If lawmakers can’t agree on the details of legalization again this year, Cuomo may call skittish legislators’ bluff and seek to advance a cannabis referendum to fulfill what he has said is one of his top agenda items.
North Dakota voters approved a medical cannabis ballot measure in 2016 and two years later swiftly defeated a proposal to more broadly legalize marijuana.
But advocates may have another chance in 2020. While the unsuccessful 2018 measure contained no limits on the amount of cannabis people could possess or grow, the new initiative, written by the same group of activists, has robust regulations—including a ban on home cultivation.
Legalization supporters hope more voters will agree to the narrower proposal this time around.
There is also another proposed legalization measure vying to collect the 13,452 valid signatures needed for ballot access.
In 2015, Ohio voters overwhelmingly rejected a marijuana legalization measure that even many longtime activists opposed due its proposed regulatory structure that would have granted control over cannabis cultivation to the very same group of wealthy individuals who paid to put it on the ballot.
Advocates have cited the Buckeye State as a potential target for another try in 2020, though no proposals have yet been filed.
Voters in number of communities throughout the state have in recent years approved measures to decriminalize marijuana possession on a local basis, indicating that there is public support for cannabis reform if placed on the state ballot again next year.
That said, Ohio is a large state, and qualifying initiatives there is very expensive, so any successful effort will likely need to have industry support.
Voters in Oklahoma shocked national observers by approving a medical cannabis ballot measure last year during a midterm primary election by a solid margin, even though demographics thought to be most supportive of marijuana reform tend to turn out in bigger numbers during general elections in presidential voting years.
Since then, people have flocked to the program, with nearly 5 percent of the state’s population registered as approved patients.
Now, seeing potential for expansion, activists are looking to follow up next year with a broader marijuana legalization initiative.
Backed by the national New Approach PAC, the new effort will have to collect 178,000 valid signatures from registered voters to qualify for ballot access.
Under the measure as initially filed, adults 21 and older would be allowed to possess, cultivate and purchase cannabis from licensed retailers. There would be a 15 percent excise tax on marijuana sales, revenue from which would cover implementation costs and fund schools, drug treatment programs and other public service programs.
Personal possession would be capped at one ounce and individuals could grow up to six plants. The proposal would also provide expungements for those with prior marijuana convictions.
Backers recently withdrew the initial measure, but plan to redraft it with feedback from the medical cannabis community, with a new version expected to be filed soon.
Lawmakers in Rhode Island have filed marijuana legalization bills for the last several sessions but they have never been brought to a vote. In 2019, Gov. Gina Raimondo (D) went so far as to put legalization language in her budget proposal, but it was removed by legislative leaders.
The governor has indicated she will make another attempt in 2020, but if that doesn’t pan out, lawmakers may consider putting the question to voters via a referendum.
In 2016, Raimondo said she is “open to” giving voters a chance to decide on legalization via a ballot question. And House Speaker Nicholas Mattiello (D), said that he was “considering the possibility of placing a non-binding referendum question on the ballot regarding the use of recreational marijuana.”
A bill for a marijuana referendum that was filed in 2018 never received a vote, but it’s an avenue the legislature might consider pursuing next year as legalization comes online in more nearby states.
Lawmakers in Nebraska have repeatedly rejected medical cannabis legislation. Frustrated with their colleagues’ unwillingness to change the law to let patient legally medicate, two senators in the state’s unicameral legislature are partnering with local and national advocacy groups to put the question directly to voters through a ballot initiative.
Under the proposed constitutional amendment, physicians or nurse practitioners would be able to issue recommendations to patients, who would then be allowed to “use, possess, access, and safely and discreetly produce an adequate supply of cannabis, cannabis preparations, products and materials, and cannabis-related equipment to alleviate diagnosed serious medical conditions without facing arrest, prosecution, or civil or criminal penalties.”
The measure would also provide for a system of legal and regulated cannabis distribution through dispensaries.
Organizers must collect valid signatures from roughly 122,000 voters in order to make the ballot.
The South Dakota secretary of state’s office certified this month that activists collected more than enough signatures to qualify a medical cannabis measure for the November 2020 ballot.
If approved, patients suffering from debilitating medical conditions would be allowed to possess and purchase up to three ounces of marijuana from a licensed dispensary with approval from their doctors. They could also grow at least three plants, or more if authorized by a physician.
A separate campaign led by a former federal prosecutor is currently collecting signatures in support of a proposed constitutional amendment to legalize marijuana for adult use.
That measure would allow adults 21 and older to possess and distribute up to one ounce of marijuana and cultivate up to three cannabis plants. The state Department of Revenue would issue licenses for manufacturers, testing facilities and retailers.
South Dakota voters rejected medical cannabis ballot measures in 2006 and 2010, but advocates hope that the changing national and regional climate on marijuana reform means that voters will be more supportive this time around.
Non-Marijuana Initiatives On State Ballots
Activists in a few states are taking steps to bring broader drug policy reform questions to voters’ ballots in 2020.
A group called Decriminalize California is preparing to soon begin collecting signatures in support of a measure to legalize psilocybin mushrooms.
In Oregon, organizers are already collecting signatures to qualify separate initiatives to legalize the psychedelic fungus for therapeutic uses and to decriminalize all drugs while expanding funding for substance misuse treatment programs.
2020 Will Be A Big Year For Marijuana
While 2019 was a huge year for marijuana, 2020 is poised to be even more impactful.
Separate from the huge number of states where cannabis and drug policy reform questions could appear before voters on ballots, lawmakers in many states are expected to consider bills to legalize marijuana.
Meanwhile, advocates will push to expand on cannabis reform momentum in Congress, where this year a marijuana banking bill was approved by the full House of Representatives and legislation to federally legalize cannabis and fund programs to begin repairing the harms of the war on drugs advanced at the committee level.
And with presidential candidates increasingly embracing cannabis legalization and other far-reaching reforms, 2020 is poised to be the biggest year for marijuana yet.
“In 2020, hundreds of thousands of Americans will turn out to vote not for the top of the ticket, but for the rights of cannabis consumers in upwards of a dozen states,” said NORML Political Director Justin Strekal. “As we have seen in previous elections, marijuana initiatives increase voter turnout in nearly every demographic. With public support growing by the day, 2020 will be the biggest year yet for expanding the freedoms and liberties of cannabis consumers.”
Photo courtesy of Democracy Chronicles.
New Mexico Governor Pushes For Marijuana Legalization In State Of The State Address
New Mexico Gov. Michelle Lujan Grisham (D) on Tuesday reiterated her commitment to legalizing marijuana in the state in 2021.
During a State of the State address, the governor again discussed cannabis reform as a means to generate needed tax revenue amid the coronavirus pandemic and create jobs.
“A crisis like the one we’ve experienced last year can be viewed as a loss or as an invitation to rethink the status quo—to be ambitious and creative and bold,” she said. “That kind of thinking includes, of course, recreational cannabis and the tens of thousands of jobs and hundreds of millions in new revenue it will bring to our state.”
Watch the governor discuss marijuana reform below:
“I have no interest in another year of thousands of New Mexicans eager to get to work and make their future in this industry being told ‘no,’ just because that’s easier than doing the hard work to get to ‘yes,'” the governor said. “When we emerge from this pandemic, we can have the same old economy, with the same old boom-and-bust future, or we can roar back to life, breaking new ground and fearlessly investing in ourselves, in the limitless potential of New Mexicans. I know which future I prefer, and we can begin building it this year.”
We’ll avoid extended economic stagnation only if we’re forward-thinking about the future & keep our eyes on what new industries we can bring into the fold – that includes recreational cannabis, and the tens of thousands of jobs & hundreds of millions in new revenue it will bring. pic.twitter.com/ErkFAd9Tw0
— Michelle Lujan Grisham (@GovMLG) January 26, 2021
Also during the speech, the Lujan Grisham touted the fact that her administration has issued nearly 700 hemp business licenses over the past two years.
New Mexico is creating new jobs in the outdoor recreation industry 10 times faster than the national average.
In two years we have issued almost 700 brand-new hemp licenses, covering 15 million square feet of indoor growing space and almost 10,000 outdoor acres. pic.twitter.com/SAz6Gn3XuV
— Michelle Lujan Grisham (@GovMLG) January 26, 2021
The governor also included cannabis legalization as part of her 2021 legislative agenda that she released earlier this month. She said in a recent interview that she’s “still really optimistic about cannabis” this session.
That optimism is bolstered by the fact that several anti-legalization Democrats, including the Senate president pro tem and the Finance Committee chair, were ousted by progressive primary challengers last year.
Additional pressure to end cannabis prohibition this year is coming from neighboring Arizona, where voters approved legalization in November and where sales officially launched last week.
New Mexico shares another border with Colorado, one of the first states to legalize for adult use. Cannabis is also expected to be legalized across the southern border in Mexico, with lawmakers facing a Supreme Court mandate to end prohibition by April 2021.
A bill to legalize cannabis for adult use passed one Senate committee last year only to be rejected in another before the end of the 30-day session. Earlier, in 2019, the House approved a legalization bill that included provisions to put marijuana sales mostly in state-run stores, but it later died in the Senate.
At least five pieces of marijuana legalization legislation are being prepared in the legislature this year, according to a top lawmaker, and so what the program might ultimately look like is an open question.
Senate Majority Leader Peter Wirth (D) said last week that he’s been having conversations with lawmakers about what needs to be prioritized in reform legislation. That includes ensuring that it promotes social equity and protects the state’s existing medical cannabis system.
Rep. Javier Martinez (D), who has consistently sponsored cannabis reform bills in past sessions, said recently that the “biggest change you’ll see in this bill, which is one of the main points of contention last year, was the creation of a number of different funds, earmarks, tax coming in from cannabis.”
In any case, there’s economic urgency to pass and implement a legal cannabis program. And while no bills have been introduced so far this session, lawmakers expect several to be released as early as this week.
Polling indicates that voters are ready for the policy change. A survey released in October found that a strong majority of New Mexico residents are in favor of legalization with social equity provisions in place, and about half support decriminalizing drug possession more broadly.
In May, the governor signaled that she was considering actively campaigning against lawmakers who blocked her legalization bill in 2020. She also said that she’s open to letting voters decide on the policy change via a ballot referendum if lawmakers can’t send a legalization bill to her desk.
Lujan Grisham isn’t the only governor who’s made a point to highlight marijuana policy in their annual address.
The governor of Nevada stressed during his State of the State speech last week that his budget proposal contains provisions to keep marijuana tax revenue flowing to schools in the state.
In his address this month, New Jersey Gov. Phil Murphy (D) reaffirmed his commitment to passing legislation to get a legal marijuana market up and running after voters approved a legalization referendum in November.
Also, New York Gov. Andrew Cuomo (D) discussed the need to legalize marijuana in 2021 during his State of the State address.
In Connecticut, Gov. Ned Lamont (D) similarly talked about his intent to work with lawmakers to enact legalization during his State of the State address.
Kentucky Gov. Andy Beshear (D) said in his annual address that “it is time to legalize medical marijuana.”
In Virginia, Gov. Ralph Northam (D) said during his State of the Commonwealth speech that cannabis criminalization was intentionally set up “generations ago” to discriminate against people of color, and he called for legalization.
Photo courtesy of WeedPornDaily.
Police In New Jersey’s Largest City Continue Marijuana Arrests At Pre-Legalization Rate
New Jersey voters approved a referendum to legalize marijuana in November and the state attorney general is instructing prosecutors to suspend low-level cannabis cases—but the number of marijuana-related arrests in the state’s largest city have remained largely unchanged compared to last year.
That’s according to a recent analysis of crime report data in Newark by Justin Leiby, an associate professor of accountancy at the University of Illinois.
The Newark Police Department made a total of 57 marijuana-related arrests in the first 20 days of this year, compared to 63 arrests made for the same period in 2020. But more notably, that trend is driven by a spike in arrests for simple possession alone, which grew from 39 last year to 48 this year—a 23 percent increase.
This is despite the fact that state Attorney General Gurbir Grewal (D) issued guidance in November telling prosecutors not to take on low-level cannabis cases as lawmakers work to develop regulations for a regulated market. His office also recently circulated a follow-up notice extending that policy until March 31, NJ Advance Media reported.
Meanwhile, cases of possession with the intent to distribute in Newark declined 63 percent, from 24 in the first days of January 202 to just nine in the same time period this year. That activity would not be legalized under the vote-approved referendum.
What makes these statistics all the more troubling from advocates’ perspective is that the overall arrests for all crimes in Newark were lower in the first 20 days of this year compared to 2020. The numbers of busts dropped from 631 to 347, or 45 percent. Yet police are still managing to find new cases where cannabis is involved.
It should be noted that some arrests included in Leiby’s analysis are for marijuana as well as other illicit drugs. But it remains the case that people are still being criminalized and possibly getting records for possessing cannabis when the plant was legalized via referendum and legislation is actively being considered to allow for retail sales.
It’s also the case that cannabis busts may be understated in the data, as some law enforcement descriptions of the arrests generally refer to drugs but do not specify the substances.
When asked about the cannabis arrest data, the Newark Department of Public Safety (NDPS) conducted its own analysis and found that arrests for possession alone were seven percent lower in the first 20 days of January 2021 compared to 2020 (55 versus 59 arrests).
That’s based on the department’s “preliminary numbers for possession of marijuana.” It’s unclear why there are minor discrepancies in the figures provided by Leiby, which is based on publicly available city data, and those from NDPS.
Either way, a minor single-digit reduction in cannabis arrests is probably not what most voters had in mind when they approved legalization at the ballot box in November.
Newark Public Safety Director Anthony Ambrose defended the enforcement actions in a statement to Marijuana Moment.
“The state of New Jersey has laws that are currently in place that make marijuana a criminal act,” he said. “The current law does not reflect the referendum. Until the laws are changed, we have to abide by the current law. Also, most of the people arrested were given summonses. They were not a criminal matter.”
Leiby said the departments defense of the arrests “is pretty thin given that the New Jersey Attorney General has told prosecutors to stop prosecuting possession cases and delay cases in which there are other pending charges in addition to marijuana possession.”
“What’s the point of arresting people for something prosecutors have been ordered to ignore?” he said. “Note that I am not criticizing the officers doing the arrests, or really even the Newark Police Department. Officers are doing their jobs. If you tell them it’s not their job to arrest people for marijuana possession, then most if not all of them would stop the arrests.”
This analysis may come as an unwelcome surprise to Newark Mayor Ras Baraka (D), who is a strong proponent of cannabis reform with an eye toward racial justice.
In 2019, he and several other New Jersey mayors called for automatic expungements of low-level marijuana possession and distribution convictions if the state ultimately moved to legalize cannabis. The previous year, he criticized legalization legislation that was in the works because he felt it didn’t do enough to ensure social equity.
Baraka’s office did not respond to Marijuana Moment’s request for comment for this story.
For police departments that are waiting on enabling legislation for legalization to be enacted before easing off cannabis cases, it may still be a while, as lawmakers have been stuck in a back-and-forth with the governor over a bill that they began crafting after the voter referendum was approved.
Both the legislature and Gov. Phil Murphy (D) are in favor of legalization, but there’s been disagreement over a particular provision related to penalties for underage people who violate the law. The governor wants underage possession to continue to be met with some penalty, but leading lawmakers say it is not their intent to criminalize such activity.
A “clean up” bill was expected to get a floor vote this month, but it was postponed after key legislators pulled their support.
“The continued arrests of New Jersey residents, overwhelmingly people of color, for marijuana possession represents a moral and political failing of state lawmakers,” NORML Executive Director Erik Altieri told Marijuana Moment. “If the leadership of the Garden State is truly as concerned with justice, the governor would immediately sign the depenalization bill into law and end the draconic policy of putting otherwise law-abiding citizens in handcuffs for the possession of a plant that 67 percent of the voters say should be legal.”
DeVaughn Ward, senior legislative counsel for the Marijuana Policy Project, told Marijuana Moment that the Newark arrest numbers “represent the unfortunate reality of the delay in effectuating legalization in New Jersey.”
“It’s disheartening to see that despite the overwhelming support of New Jersey voters for ending prohibition and cannabis-related arrests, in addition to the majority of legislators supporting cannabis reform legislation that people are still being arrested for cannabis,” he said. “It makes need for action by the Gov. Murphy and the legislature all the more direr.”
Murphy pledged in a State of the State address earlier this month that “we are on the verge of passing an innovative and groundbreaking set of laws to reform our historically unjust approach to marijuana and cannabis.”
He also recently said that he remains “optimistic” that he can reach a deal with lawmakers to revise the enabling legislation they sent him last month, but Senate President Steve Sweeney (D) said that “the ball’s in his court,” referring to the governor.
Top New York Official Responds To Marijuana Advocates’ Criticism Of Governor’s Legalization Plan
New York activists are ready for 2021 to be the year that the state finally legalizes marijuana. But one little-noticed provision of the cannabis reform proposal introduced by the governor in his budget request last week has become a major source of contention.
That said, Gov. Andrew Cuomo’s (D) second-in-command told Marijuana Moment that the policy at issue—an increase in penalties for certain cannabis-related offenses—could change as the administration and lawmakers negotiate the finer details of the proposal.
While marijuana would be legal to purchase and possess for adults 21 and older under Cuomo’s plan, the legislative text he released also contains a section that would make it a class D felony—punishable by up to 2.5 years in prison—to sell cannabis to anyone under the age of 21.
That’s a significantly more serious penalty that what’s currently on the books. As it stands, an illicit sale to an underage person is a misdemeanor.
Advocates say this proposal runs counter to the stated intent of the legalization measure, which is to end marijuana criminalization and promote social equity. Cuomo has repeatedly recognized that people of color are disproportionately targeted by police when it comes to cannabis enforcement—and there’s no reason to believe that would be any different if this policy were to go into effect.
Lt. Gov. Kathy Hochul (D) told Marijuana Moment in a phone interview on Tuesday that the administration remains “very concerned about making sure that no one under the age of 21 is participating” in the marijuana market, and the intent of the section at issue is deterrence.
But while the provision was included in the governor’s budget plan, she also left room for further revisions, stating that “much of it is going to be negotiated with the legislature, and all these details can be resolved with their input as well.”
Eli Northrup, a New York public defender and member of the reform coalition Smart START NY, ignited a conversation over the youth penalty provision last week, arguing on Twitter that legalization “cannot mean increased criminalization.”
Under @NYGovCuomo marijuana “legalization” proposal, released Tuesday, selling ANY amount to a person under 21 is a class D felony which carries the potential of 2.5 yrs in prison. This same behavior is currently a misdemeanor. Legalization cannot mean increased criminalization.
— Eli Northrup (@EliNorthrup) January 21, 2021
The text of the proposal at issue states that a “person is guilty of criminal sale of cannabis in the second degree when he knowingly and unlawfully sells…any amount of cannabis or concentrated cannabis to any person under twenty-one years of age” and that such an offense is “a class D felony.”
Here’s the provision in the Governor’s revenue proposal for those interested pic.twitter.com/DACDpTwhw4
— Eli Northrup (@EliNorthrup) January 21, 2021
Melissa Moore, New York state director for the Drug Policy Alliance, told Marijuana Moment that “if we’re going to legalize, that needs to mean not creating new marijuana crimes.”
Cuomo has “really acknowledged the fact that the harm of marijuana criminalization has fallen disproportionately on communities of color in New York, and we need to move out of that scenario and get it right this time,” she said.
“He said too many black and brown New Yorkers have been the target of enforcement—that there’s been this exaggerated injustice of the justice system,” Moore continued. “If that’s the case, then as we’re turning the page in the playbook and moving into a legalization framework, then why on earth would you establish really harsh penalties and create new crimes, as he’s done in his proposal?”
Hey @NYGovCuomo we watching you 👇🏿 @startsmartNY coalition member @EliNorthrup of @BronxDefenders with the truth – legalization does not mean increased criminalization. Stay focused yall, are people are worth more than talking points. cc: @FABNEWYORK @oldmanebro @MichaelSkolnik https://t.co/OaQcQvI9B3
— Kassandra Frederique (@Kassandra_Fred) January 21, 2021
One of the goals of taxing and regulating cannabis sales for adults is to disrupt the illicit market and prevent youth use by ensuring that marijuana is sold at licensed facilities where there are policies in place to stop underage people from accessing those products. And to that end, there should be business-level penalties for dispensaries that violate the law such as revoking a license, Moore said.
But what the governor’s language threatens to do is further criminalize individuals over marijuana even as the state moves to establish a regulated market, advocates argue. Hypothetically, a police officer would be able to arrest a 22-year-old college student for selling a joint to a 19-year-old classmate, for instance, and giving police that latitude could lead to a continuation of discriminatory enforcement.
Beyond the underage provision, advocates also have outstanding concerns the Cuomo plan’s omission of a home cultivation option for medical patients or recreational consumers.
The lieutenant governor told Marijuana Moment that while such activity would not be allowed under the budget proposal as submitted, “everything is always on the table” as the administration works with legislators to enact legalization.
“It’s certainly something that has been brought to our attention,” she said. “I can’t say that there’s a change in that at this point, but I also have to ask advocates to recognize that this is a major societal, cultural shift for a state like New York, that we view ourselves as very progressive, but much of New York State is not New York City. There are very conservative areas of our state.”
“I know these these areas are hesitant philosophically, and in order to get their buy-in and acquiescence and acceptance of what is, in their mind, really dramatic shifts in the state policy, we have to take smaller steps,” she added.
Meanwhile, advocates have also expressed frustration over the limited amount of funding for social equity grants that’s included in the governor’s proposal.
The administration says it expects the state to bring in about $350 million in marijuana tax revenue, and the plan allocates $100 million of those funds to social equity grants over the course of four years, followed by a recurring $50 million annually.
“The parameters of that [grant program] have not been established yet,” Hochul said. “This is where we want to have input from those communities to determine, does this help businesses set up retail operations in order to be in the communities legally selling marijuana? Does this create other opportunities to address job training?”
“We want to make sure that these communities also have access to the jobs and the job training,” she added. “There are many ways that we can address this, and we’re not going to say the answers—I think the answers lie in those communities themselves.”
Activists have also pointed out that Cuomo’s proposal “seeks to enhance criminal penalties for driving under the influence of marijuana and creates new criminal penalties for growing and selling marijuana without a license.”
The Governor's proposal also seeks to enhance criminal penalties for driving under the influence of marijuana and creates new criminal penalties for growing and selling marijuana without a license.
— Brooklyn Defender Services (@BklynDefender) January 22, 2021
All that said, the governor’s budget plan—which includes legalization language for the third year in a row—is not the finished product, as Hochul pointed out. Rather, it represents a starting point for negotiations with his office and the legislature, where other reform bills have been introduced for this session.
And unlike in past sessions, the legislature will have more influence this year after Senate Democrats secured a supermajority in the November election. If the governor were to veto any bill over details he didn’t like, they could potentially have enough votes to override him.
Advocates are confident that lawmakers will recognize the potential consequences of provisions they see as problematic and will work to remove or revise them as the legislature takes up the issue.
To that end, New York’s legal cannabis market could end up looking more like what’s outlined in a bill introduced by Sen. Liz Krueger (D) and 18 cosponsors at the beginning of this month. The legislation would make it so adults 21 and older would be able to purchase cannabis and cultivate up to six plants for personal use.
It would also provide for automatic expungements for those with prior cannabis convictions and it also includes low- or zero-interest loans for qualifying equity applicants who wish to start marijuana businesses.
In any case, there’s growing recognition in the state that legalization is an inevitability.
The top Republican in the New York Assembly said last month that he expects the legislature to legalize cannabis this coming session.
Senate Majority Leader Andrea Stewart-Cousins (D) said in November that she also anticipates that the reform will advance in 2021, though she noted that lawmakers will still have to decide on how tax revenue from marijuana sales is distributed.
Cuomo also said that month that the “pressure will be on” to legalize cannabis in the state and lawmakers will approve it “this year” to boost the economy amid the health crisis.
The push to legalize in New York could also be bolstered by the fact that voters in neighboring New Jersey approved a legalization referendum in November.
Separately, several other bills that focus on medical marijuana were recently prefiled in New York, and they touch on a wide range of topics—from tenants’ rights for medical cannabis patients to health insurance coverage for marijuana products.