Updated: Aug 29
Editor’s Note: Today’s post comes from contributing editor Bob Beach, a Ph.D. candidate in history at the University of Albany, SUNY. As one of Points’ resident New Yorkers, today Beach covers Governor Andrew Cuomo’s recent announcement that the Empire State hopes to legalize recreational marijuana in 2019.
On December 17, at a speech at Roosevelt House Public Policy Institute at Hunter College, speaking in front of members of the New York City Bar Association, New York Governor Andrew Cuomo previewed his 20-point “Justice Agenda” for the 2019 legislative session. The December event was merely a preview of a governor’s State of the State address (which took place this Tuesday), but both speeches outlined a bold progressive agenda centered on a number of issues related to social justice, many of interest to readers of this forum.
Roosevelt House, Home of the New Deal, Home of Cuomo’s Social Justice Agenda
The references to a Rooseveltian moment for Cuomo during the December speech (though not in the State of the State Address) were hard to ignore. Institute director Harold Holzer reminded the audience that they were in the birthplace of the New Deal. As they approached the 90-year anniversary of FDR’s tenure as governor, Holzer invited the current Governor to the podium “to answer the question: What would FDR do today?” Cuomo himself then made several clear references to FDR’s influence throughout his speech.
It certainly remains to be seen whether Andrew Cuomo’s third term as governor is going to launch him into Roosevelt-level national prominence. Cuomo has recently ruled out the possibility of a 2020 Presidential run, but rumors have been swirling regarding Cuomo’s aspirations for that office for several years, despite generally falling popularity in his own state. A recent Siena College Poll has Cuomo back up to 51% favorability, after being under 50% for a good portion of his second term (following early ratings as high as 70% in his first term). His job approval ratings remain negative: 43% approve, 56% do not.
Headlining his December preview and generating a large amount of media attention leading up to the Tuesday speech, was his plan to push for marijuana legalization in the state. The legalization regime laid out in the governor’s budget proposal appears to address some of the main concerns of both supporters and (to some extent) of those wary of legalization.
Central to the Governor’s proposal is the creation of the Office of Cannabis Management (OCM) which would centralize all the state’s licensing, enforcement and economic development functions into a single body, and oversee the production and distribution of cannabis products in the adult-use, industrial, and medical cannabis markets. The second two categories — industrial and medical — already have existing regulatory structures that would be taken over and expanded by the OCM. But adult-use is a new area for New York, and while many of the regulatory proposals are reflective of those in other legal states, there are some notable differences worth pointing out.
The state would adopt a three-tier model of distribution (similar to alcohol), and the number of licenses issued by the OCM would be limited. (There does not appear to be an allowance for home grown cannabis in the current proposal.) The state would collect a cultivation tax of $1 per dry weight gram of cannabis flower and $0.25 per dry weight dram of cannabis trim. There would be an additional 20% state tax on wholesale sales to a retail dispensary and an additional 2% tax that would go to the county.
The unique aspects of Cuomo’s proposal, by and large, address concerns of pro-legalization activists regarding civil rights, investing in communities affected by the war on pot, and limiting the power of corporate capital to influence the market. Incidentally, the proposal also addresses many of the concerns of more skeptical opponents of legalization by curbing excessive commercialization, addressing traffic safety concerns, and engaging in public education efforts.
Cuomo’s State of the State Address
Some of the highlights from the report provide vague language that would have to be clarified in the regulations but are still indicative of an ambitious effort by the Governor’s administration to address the social justice concerns of legalization. For example, in terms of limiting the power of corporate money, the OCM would “encourage equity through craft growers (Points covered that) and cooperatives, and provide training and incubators to ensure meaningful and sustained participation by communities disproportionately harmed by cannabis prohibition.” The proposal goes further, tasking the OCM to “facilitate market entry through technical assistance, mentorship, and access to capital.”
Another significant concern was the fate of individuals with prior convictions under the prohibition regime. Cuomo, in his broader “justice agenda,” has pointed to a “two-tiered criminal justice system divided between the wealthy and everyone else,” and how these disparities have impacted “African-American and minority communities.” The Governor’s proposal would task the OCM with “supervising a restorative justice initiative” that would review and seal cannabis convictions and eliminate the collateral consequences of conviction, such as parole violations, while encouraging reinvestment in harmed communities.
Again, “State of the…” and budget proposal rhetoric notwithstanding, these two specific areas of the OCM’s potential mandate represent not merely remarkably progressive language for a career moderate like Cuomo, but a dramatic public about-face on the marijuana issue. Cuomo has voiced vocal opposition to legalization efforts since taking office in 2011, and while he’s made a few efforts to decriminalize felony possession in the past and launched a hemp pilot program, in 2015 New York passed, and still maintains, one of the most restrictive medical cannabis regimes in the US. Meanwhile, as recently as February 2017, Cuomo called marijuana a “gateway drug.”
Cuomo’s shift on this issue can be attributed to a few factors. First, neighboring states and countries (including Vermont, Massachusetts, Canada, and soon New Jersey) legalized adult-use cannabis, leading the Governor, in January 2018, to commission a Department of Health committee to study the issue and submit a report in the fall of 2018. Then, Cynthia Nixon’s Democratic Gubernatorial primary challenge, which included a widely publicized speech in April announcing her support for legalization as a racial justice issue, forced Cuomo to speed completion of the health department report, which determined that the benefits of legalization outweighed the costs. He then tasked a working group to draft potential regulatory language and Cuomo began making public pronouncements in support of legalization. (Incidentally, despite being a lifelong resident of New York State and a historian of cannabis, I was not asked to be a member of this working group.)
Cuomo’s rapid policy shift perhaps elicits another comparison to Roosevelt. While remembered as a key player in Prohibition’s repeal, famously proclaiming Prohibition “doomed” in his acceptance speech at the 1932 Democratic National Convention, Roosevelt was a reluctant wet. As Michael Lerner reminds us, repeal grabbed the headlines (and was aggressively supported by Al Smith), but the economic crisis was the central issue of the campaign. Similarly, Cuomo’s announcement of legalized cannabis was a mere footnote in a much broader vision to remake the state in ways that place Cuomo in the unlikely position to potentially drive a national progressive agenda against what Cuomo deemed the “social crisis” of the Trump administration.
But, indeed, the legalization issue will continue to grab headlines until well after the first New York dispensaries are opened. And despite the heady optimism of the Governor and his supporters, plenty of obstacles remain. The first obstacle would be passage of the budget, and there are potentially thorny issues that could complicate Cuomo’s plans. The budget proposal does not explicitly allocate tax revenue from cannabis sales to New York’s MTA system, but many supporters of legalization representing New York City have hoped that at least some, if not all, of the revenue go to fixing the subway.
More generally, the Republicans in the legislature, though significantly weakened by the 2018 midterm sweep which gave Cuomo a majority in both houses, are poised provide a check on Cuomo’s power, and have vocally opposed legalization efforts in the past, with the backing of their constituents. According to a Quinnipiac poll in May 2018, Republicans continue to oppose legalization in New York, 56% to 40%, even as New York voters as a whole support legalization, 63% to 32% percent.
But more so than Republican intransigence, in terms of his cannabis program, Cuomo is putting a lot of stake in the effective operation of a new Office of Cannabis Management. While the language of the OCM’s mandate seems bold on the surface, it is also fairly extensive, and the realities of an administrative office, coupled with New York’s famous reputation for state government corruption, could doom the heady language in the budget proposal from bearing significant fruit. We will have to see how the OCM would be organized and what its authority and source of oversight would be to make sure that proper attention is paid to the social justice elements of the plan.
Larger systemic issues will undoubtedly make the goal of creating an equitable “egalitarian market” difficult as well. There is significant concern that a rush to legalization would allow for the ten firms currently licensed to provide supply to the state’s medical cannabis industry an inside track on the provision for the adult-use market. New York City Mayor Bill de Blasio has vocally warned against corporate influence in his legalization stance. His response to Cuomo’s statement in December reflected this difference. Federal laws prohibit cannabis businesses from accessing regular banking services, making it more difficult for all but the most capitalized companies to be able to afford the security required to run a lucrative cash-only business. So these issues would remain even if licenses were open or directed toward poorer communities. It is unclear how Governor Cuomo’s proposal to “facilitate market entry” for these groups will overcome these limits.
The larger issues brought on by racial disparities in criminal justice enforcement generally have as much bearing on the future of adult-use cannabis in New York State as they do on the nation as a whole. New York City Comptroller Scott Stringer published a report in 2018 that showed that black and latinx residents were arrested at eight times the rate of white residents since 2010. Perhaps anticipating a shift in policy in the state, Stringer emphasized a deliberate policy effort to prioritize citizens with prior marijuana convictions and their families in the issuing of licenses for adult-use dispensaries, and direct investment in communities like Washington Heights and East Harlem — communities hardest hit by the war on pot.
But evidence from Colorado also suggests that the racial disparities that marked the enforcement of marijuana prohibition continue, and in many cases are exacerbated, in adult-use markets as law enforcement focuses its efforts on stopping unlicensed production and distribution, underage distribution, and out-of-state trafficking. All groups saw significant drops in overall arrest numbers in Colorado since legalization, but the racial disparities actually widened in some cases.
So, even with the above concerns notwithstanding, the legal regime in New York State is still at risk of falling short of its lofty social justice goals. It will remain to be seen whether Stringer’s findings will be repeated in a 2020-2027 study on cannabis arrests in New York, should Cuomo’s plans for legalization move forward.