Should weed or shouldn’t weed?
That is the question.
For the fourth year in a row, a bill has been introduced in both houses of the state Legislature to legalize recreational marijuana.
And for the fourth year in a row, it’s died before it could get anywhere.
But the ongoing governor’s race could shift the momentum toward eventual passage, and that raises a number of issues that lawmakers and the public should consider before the proposal goes any further.
Since Gov. Andrew Cuomo’s progressive Democratic challenger Cynthia Nixon became a factor in the governor’s race earlier this year, it seems she’s already had an influence over the governor on issues such as teacher evaluations and the New York City housing crisis.
Nixon is a strong advocate of legalizing recreational marijuana on the grounds that the law prohibiting its use discriminates against minorities. (While young white people use marijuana at higher rates than African-Americans or Latinos, 95 percent of those charged with marijuana possession in New York City in 2016 were African-American or Latino.)
The governor, who has vehemently opposed the idea of legalizing recreational marijuana use in the past, is suddenly softening his views, even calling for the creation of a commission to study it. Recently, he conceded that legalization in New York might be inevitable, saying that “for all intents and purposes, it is going to be here anyway,” noting that surrounding states like Massachusetts and New Jersey either have legalized it or are considering it.
The bill that’s pending in the Legislature (A3506B/S3040B), would -- among other terms -- remove marijuana from the list of hallucinogenic drugs that places marijuana in the same category as cocaine and opioids; make possession illegal for those under age 21; allow home cultivation of up to six marijuana plants by anyone 21 or older; soften the penalties for possession, sale, and possession of marijuana paraphernalia; make smoking marijuana subject to the same public smoking regulations as tobacco; allow communities to ban the sale of marijuana, as they can with alcohol; and set up a marijuana revenue fund to support efforts at education, drug treatment and community support.
More importantly for those who see marijuana as a revenue generator for the state, the bill would set up an excise tax on marijuana and concentrated cannabis and allow local communities to impose their own 2 percent tax on retail sales. The state estimates that legalizing marijuana could generate for state and local governments an amount equal to or exceeding the revenue generated in Colorado, which takes in $5 million to $22 million a year, while only spending about $500,000 to $1.5 million.
The opportunity to eliminate legal discrimination against minorities, spend less on law enforcement and bring in tons of revenue to the state is putting stars in the eyes of supporters.
But it’s not that simple. Far from the harmless hobby some promote it as, recreational marijuana use has problems and consequences. And that will factor into New York allowing it.
For instance, shortly after Colorado became the first state to legalize marijuana in 2014, police and hospitals began noticing the after-effects, including more people driving around stoned on marijuana, children showing up in emergency rooms after becoming sickened by edible marijuana, and people acting erratically and sometimes violently while under the influence. Both Colorado and Washington state have seen an increase in fatal, nonfatal and traffic citations associated with marijuana use since it was legalized.
Because of the way the drug metabolizes in people’s systems, which is different than with alcohol, scientists have so far failed to come up with a reliable system for testing drivers for marijuana use. They can’t easily or cheaply figure out when someone has actually used marijuana, and scientists haven’t even determined a direct link between the amount of THC, the active drug in marijuana, in someone’s blood system and their level of impairment.
So it’s going to be difficult for the state to set limits on impairment, as it can with blood-alcohol level and drunken driving. The best solution so far is to train police officers in observing someone in a marijuana-intoxicated condition as a way to evaluate excessive use. But that’s expensive and unreliable. Will every police force have to have a drug officer on patrol 24/7?
So how can the state enforce drugged-driving laws for marijuana use when there’s no quick, reliable, easy way for police to test for the drug?
It’s an issue New York will have to contend with if the state legalizes recreational use.
The state also will have to deal with the issue of licensing testing facilities and retail facilities that sell marijuana.
Massachusetts was supposed to be ready to sell recreational marijuana by today.
But the date has been pushed back because that state hasn’t been able to approve the applications for any of the independent testing laboratories that are required to test recreational marijuana before it’s sold in stores, which also have to be licensed.
We’ve seen how difficult it’s been to expand the availability of medical marijuana in New York, and that’s confined to a limited number of customers.
New York will have to set up a whole new bureaucracy to certify testing labs and to license stores to sell the recreational drug to millions of potential new customers.
That’s going to be a tall order, and nothing the state will be able to ramp up quickly.
Legalization also poses a problem for companies and their employees.
It might be legal for you to smoke pot outside the workplace, but you might have a problem if your employer prohibits employees from coming to work under the influence of marijuana.
Marijuana is detectable in urine for 48 to 72 hours after a single use and up to 12 weeks in the urine of habitual users, depending on how frequently they partake.
Vermont, which just made it legal today for those over 21 to possess an ounce of marijuana and grow up to six plants at home, is leaving it up to employers to adopt and enforce their own policies under existing testing and enforcement guidelines.
Eventually, that could create a tricky legal situation when an employee disciplined for marijuana use takes his employer to court over a disagreement about whether he was actually impaired by his off-duty use of the drug and therefore in violation of the employer’s policy.
And by the way, if you work for the federal government, you can’t smoke pot on or off the job, even if your state approves it. That’s because marijuana use is still illegal under federal law.
Congress is working on how to bridge the gap between federal and state laws, something New York lawmakers should watch for in forging their own legislation.
On Thursday, the state of Delaware failed in its attempt to become the ninth state to legalize recreational marijuana, narrowly defeating a measure that was similar to New York’s.
The defeat in large part came about due to pressure from organizations representing police, hospitals, doctors and some of the state’s biggest employers, who feared an increase in car crashes, emergency room visits, more drug addiction and exposure of the drug to children.
Once New York’s bill gets rolling, expect those same types of groups to mount formidable opposition.
Legalizing recreational marijuana use in New York state might be inevitable, and it might be gaining momentum politically.
But passing a bill that covers all the concerns and problems will not be easy, nor should it be taken lightly.