Gov’s report leads to proposed marijuana legalization legislation

Albany County District Attorney David Soares

The Enterprise – Sean Mulkerrin
Albany County District Attorney David Soares — shown here at a June 20 forum at the Bethlehem Public Library — told The Enterprise that a regulated marijuana market could help stimulate the economies of both urban and rural communities in Albany County. 

ALBANY COUNTY – In January of this year, Governor Andrew M. Cuomo — who in February 2017, referred to weed as a “gateway drug” — called for a study to evaluate the health, public safety, and economic impact of legalizing marijuana in New York State. The report, out last month, recommends legalizing marijuana, citing both economic and health benefits.

The report is the latest government-funded study that debunks popular beliefs about marijuana. One three-quarters of a century ago found use of marijuana does not lead to addiction or other drug use nor does it induce violence or sex crimes.

“I am glad that the sociological, psychological, and medical ills commonly attributed to marihuana have been found to be exaggerated,” wrote Mayor of New York City Fiorello LaGuardia of the study, “The LaGuardia Committee Report: The Marihuana Problem in the City of New York” — in 1944.

A federal study a half-century ago, under the Republican Nixon administration included a description of marijuana’s uses as a medicine through history — in China, Egypt, and in America from the mid-19th Century to the 1970s — and concluded, “In large measure, the marihuana issue is a child of the sixties, the visual and somewhat pungent symbol of dramatic changes which have permanently affected our nation in the last decade … We would de-emphasize marihuana as a problem.”

Last week, Cuomo appointed a workgroup to draft legalization legislation.

Nine states have legalized marijuana, including two of New York’s neighbors, Massachusetts and Vermont. Another neighbor, New Jersey, recently put on hold municipal prosecutions of marijuana offenses until September, while state lawmakers debate legalization.

Also last week, Manhattan District Attorney Cyrus Vance announced that his office will now decline to prosecute marijuana possession and smoking cases.

Albany County District Attorney David Soares told The Enterprise on Aug. 2, before the governor had made his announcement, that he wanted to receive input from two more communities — he has held a series of forums in rural, suburban, and urban neighborhoods — before his office takes a position on whether or not it will decline to prosecute cases involving marijuana.

“We’re on the precipice of making that decision and we’ll be announcing a policy shift very soon,” Soares told The Enterprise. He declined to say what the policy shift would be, but drew a distinction between Manhattan and Albany County.

“Although you have the different boroughs, you have one monolithic law enforcement agency there,” he said. Contrast that with Albany County, which has rural communities, bedroom suburbs, “river towns,” and city centers, he said, each with its own law enforcement and law-enforcement philosophy.

“So where Albany lands,” Soares said of the county’s marijuana prosecution policy, “may be a little bit different.”

A majority of Americans, according to Pew Research, support the legalization of marijuana, 61 percent; 10 years ago, it was 35 percent. A poll by Quinnipiac University in May found that 63 percent of the New York State’s voters supported “allowing adults to legally possess small amounts of marijuana for personal use.”

Soares said that attitudes about legalization have “shifted tremendously” since he was first elected, in 2005.

“The positive effects of a regulated marijuana market in NYS outweigh the potential negative impacts. Areas that may be a cause for concern can be mitigated with regulation and proper use of public education that is tailored to address key populations,” the study concludes.

The report

The report says that marijuana is the most commonly-used illegal substance, and that the majority of people who have used it do not try other illicit drugs; rather, early regular use of tobacco and alcohol were associated with later illicit drug use.

“Marijuana is easily accessible in the unregulated market,” the report says, and its illegality has not curbed use. Half of Americans over the age of 18 have tried marijuana, and, of them, 44 percent currently use it. Ten percent of New Yorkers have used marijuana in the last month, according to the report.

Over the past two decades, the report says, “There have been more than 800,000 arrests for marijuana possession.” In just one year alone, 2010, there were 103,698 marijuana-possession arrests in New York, which is 29,000 more than the state with the next highest total, Texas.

The increase in arrests has led to over-prosecution, which, the report says “has had significant negative economic, health, and safety impacts that have disproportionately affected low-income communities of color.”

Because of over-prosecution any legalization law should address prior criminal convictions for possession or use, the report says, noting there are jurisdictions working toward expunging previous drug-related offenses already.

If legalization were to happen, Soares “absolutely” believes that the previous pot-related offenses should be expunged.

“Here’s the reason why,” he said. The thought that Wall Street bankers could soon be profiting from the same activity that marginalized people, historically, have been prosecuted for — “It’s just so offensive,” he said.

Granted, there are those who will say, “It was against the law,” Soares said but asked: Should those people continue to suffer under the weight of that conviction?

He answered himself: “I have to say, no.”

Some people, because of prior marijuana-related convictions, have trouble getting a job, or have been deprived of opportunities to enter into military service, or to get a job in law enforcement or the public sector, Soares said. “If the state of New York is going to take the position that we are going to engage in market regulation,” Soares said, “then we have to revisit what we’ve done in the past, in order to move forward.”

“The increasing emphasis on minor marijuana arrests has had a disproportionate impact on communities of color,” the report states. A black person is nearly four times more likely than a white person to be arrested for marijuana — despite data that shows there is equal use among racial groups.

In Albany County, in 2017, there were 220 marijuana-related cases; in 142 cases, 65 percent, the defendant was black; in 61 cases, 28 percent, the defendant was white; and, in 12 cases, 5 percent, the defendant was Hispanic.

According to the United States Census Bureau, as of July 2017, the estimated population of Albany County was 309,612. Seventy-two percent was white; 14 percent was black; 7 percent was Asian; and 6 percent was Hispanic.

That disproportionate impact, according to Soares, is rooted in economic opportunity.

“If you look at, for example, Western Avenue [in Guilderland] and you say, ‘Is there an employer here that hires more than 10 people? 20 people? 30 people?’” Soares said, before answering, “Yes.” But if that question were asked about the inner-city, he said, the answer would be, “No.”

Where opportunity is absent, Soares said, that vacuum is filled with the illicit economy, and, in order to protect it, he said, violence is necessary. That draws more police, which results in higher rates of arrests.

He also pointed out that, when his office has engaged in more intense investigations “where we’re taking down entire criminal enterprises,” he’s found that “many of these enterprises are rooted in suburban communities.”

The size of the state’s illegal marijuana market is estimated to be $1.74 billion to $3.5 billion annually. Depending on potency and tax rate, legalization would add an estimated $248.1 million to $677.7 million in tax revenue to state coffers, the report says. In Colorado, with a population of 5.6 million (New York’s is 19.75 million), in 2016, marijuana sales generated nearly $200 million in tax revenue.

With that potential flood of money coming into the state, Soares wants to “make sure this multibillion dollar industry isn’t going to be an industry that [inner-city and rural residents] are locked out of.”

“How are they going to create economic opportunities for the inner-city, where most of the illicit economies for marijuana distribution, as it stands right now — you have a group of people that are engaged in that activity,” he said. “How are we going to make sure that the upstate economy economies — a lot of the rural economy — have a stake in the future of the marijuana industry?”

Market regulation, Soares said, if done correctly, could be a “magic bullet” for those inner-city and rural communities.

“A magic bullet in the sense that it has an opportunity to target both inner-city and rural communities and provide economic stimulus in both ... at the same time, if done right,” he said.

A report from the pro-legalization not-for-profit, Marijuana Policy Project, said that, in 2015, legal marijuana activities added $2.39 billion to Colorado’s economy, and created 18,005 new jobs.

Health effects

The report says marijuana has been found to be beneficial for the treatment of pain, epilepsy, and nausea as well as other health conditions, and that its negative health consequences have been “found to be lower than those associated with alcohol, tobacco and illicit drugs including heroin and cocaine.”

Marijuana has been used recently to combat the opioid epidemic, the reports says, as another option for pain relief. Deaths involving opioid overdoses in the state went from over 1,000 in 2010, to over 3,000 in 2016.

Twenty-nine states, including New York, have medical marijuana programs, and studies have found that some of those states have lower rates of opioid overdose deaths, by as much as 25 percent, than states without medical marijuana.

The July report also says that studies have found in some states with medical marijuana laws there is nearly a 6-percent lower rate of opioid prescribing, and that legalization is associated with a 6.38 percent lower rate of prescribing.

Young children have been most affected by legalization.

After Colorado legalized marijuana, the report says, “There was a significant increase in the number of children under age 12 admitted to emergency rooms due to unintentional marijuana ingestion.” Over half the cases involved “edibles.”

The report says that regular use is associated with lower academic achievement, but that causation is unclear.

There aren’t likely to be significant changes in overall use among young people, the report says. “The majority of credible evidence suggests legalization of marijuana has no or minimal impact on use by youth.”

Road enforcement

“A primary concern of law enforcement is the possibility of increased impaired driving and car crashes in a regulated marijuana environment,” the report states.

Marijuana impairs a driver’s judgment, the report says, as well as his motor coordination and reaction time; and a meta-analysis suggested that marijuana use is associated with an increased risk of involvement in motor-vehicle crashes.

“However,” the report says, three years after legalization in Colorado, “motor vehicle crash rates overall were not statistically different, although this evidence is still preliminary.” States that have regulated marijuana, according to the report, cannot say conclusively its role in traffic safety.

Testing for marijuana is complicated, the report says; currently, there is no equivalent to the breathalyzer for roadside testing of alcohol.

Soares said that, absent technology, what is needed by police is greater access and training opportunities for drug recognition experts, known as DREs, who, according to the report, “are certified law enforcement officers with experience in DUIIX (driving under the influence of intoxicants)/drug enforcement who go through extensive training and a certification process.”

This is a resource-intensive way of measuring impairment, the report notes.

“There will be substantial expense associated with increasing the number of  Drug Recognition Experts,” the report states, but, before someone can train to become a drug recognition expert, he has to go through prerequisite training, known as Advanced Roadside Impaired Driving Enforcement. Should marijuana be legalized, this training may be needed for all police, which, according to the report, would also have budget implications.

Ultimately, the report says, “Conclusions cannot be drawn from the existing research on the impact of marijuana use on motor vehicle traffic crashes.”

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