De-criminalizes the personal possession of marihuana; relates to certain pleas; specifies requirements with respect to bills affecting the penal law; repealer

Summary of provisions

Section 1 states that this act shall be known as the "Fairness and Equity Act."

Section 2 amends subdivision 6 of section 1.05 of the penal law to state that that the law should be enforced equally and fairly and not result in a disparate impact on people because of their race or ethnicity.

Section 3 amends section 221.05 of the penal law to eliminate penalties escalating to jail time for the violation of "unlawful possession of marihuana."

Section 4 amends subdivision 2 of section 221.10 of the penal law so that the penalty for possession of small amounts of marihuana that is "burning" or "open to public view" is a violation, not a misdemeanor.

Sections 5 and 6 define criminal sale of less than 25 grams of marihuana as selling marihuana for consideration.

Section 7 amends subdivision 1 of section 170.56 of the criminal procedure law to allow a court to order an adjournment in contemplation of dismissal based upon a finding of exceptional circumstances.

Section 8 amends section 210.46 of the criminal procedure law to reflect the repeal of section 221.35 of the penal law.

Sections 9 and 10 amend section 440.10 of the criminal procedure law to provide for the vacating of convictions that occurred before the enactment of this bill.

Section 11 amends paragraph k of subdivision 3 of section 160.50 of the criminal procedure law to eliminate the three-year wait requirement for the sealing of marihuana-related records.

Section 12 adds a new section 52-a to the legislative law to create guidelines for the implementation and use of racial and ethnic impact statements to accompany certain legislation.

Section 13 amends paragraph f of subdivision 4 of section 837 of the executive law to require that the Division of Criminal Justice Services conduct research and analysis necessary to complete racial and ethnic impact statements and present an annual report containing statistics and other information relevant to such statements.

Section 14 establishes the effective date.

Justification

Since 1977, possession of small amounts of marijuana (25 grams or less) has been "decriminalized" in New York State. It is a violation punishable by a fine, not a misdemeanor that leads to arrest.

In decriminalizing marijuana, the intent was clear: "The legislature finds that arrests, criminal prosecutions and criminal penalties are inappropriate for people who possess small quantities of marihuana for personal use. Every year, this process needlessly scars thousands of lives and wastes millions of dollars in law enforcement resources, while detracting from the prosecution of serious crime." (Chapter 360, Laws of 1977)

But 35 years later, by 2012, more than 44,600 people in New York State were arrested and charged for a misdemeanor crime for possessing small amounts of marijuana for personal use, if it was said to be "in public view" or "burning." Dozens of additional people were charged with criminal drug sales for the equivalent of sharing a single "joint."

Of the 28,644 people arrested in New York City in 2013 for possessing small amounts of marijuana, nearly 87 percent were black or Latino, mostly young men. Of those arrested for sharing, the vast majority were black or Latino young men between the ages of 16-30. These severe disparities are alarming and indefensible when considering that data from the Substance Abuse and Mental Health Services Administration of the U.S. government consistently shows that young white men are far more likely to possess and use marijuana than non-whites.

In other words, in New York, possessing small amounts of marijuana is largely decriminalized for people who are white, and vastly more likely to be criminalized for people who are black or Latino.

The consequences of New York's inequitable decriminalization are severe. Today, nearly 600,000 New Yorkers are saddled with an arrest record for possessing small amounts of marijuana, the overwhelming majority of whom are black or Latino. According to the National Employment Law Project, these arrest records can follow a person for the rest of one's life and impact the ability to access banking services, schools, jobs, housing, certain licensing, and also have immigration consequences. In addition, according to research by the ACLU and Queens College sociologist Harry Levine, the costs associated with these arrests total hundreds of millions of dollars to taxpayers every year.

This bill addresses the disparate racial and ethnic impact that existing law has had by more fairly decriminalizing possession of small amounts of marijuana, including sharing a single marijuana cigarette. It also creates a process for those who have been arrested

for possessing or sharing small amounts of marijuana to have their records stricken or sealed.

And, the bill creates a process for the legislature to avoid such a severe inequitable impact in the future through racial and ethnic impact statements. These statements would provide information to determine if certain proposed legislation would disproportionately impact racial and ethnic minorities and if that legislation, when enacted, causes a disparate impact. Connecticut, Iowa, and Oregon have already implemented racial and ethnic impact statements, which are most analogous to New York's "fiscal notes."

Effective date

The one hundred eightieth day after it shall have become law.