Andrew Cuomo's Pot Problem

In New York, one of the most liberal states in the country, why is the governor doing everything in his power to water down sensible marijuana reform?

The medical marijuana legislation Gov. Andrew Cuomo signed last summer has been widely criticized. Credit: Illustration by Victor Juhasz

When New York Gov. Andrew Cuomo signed legislation opening the door to medical marijuana last July, supporters of marijuana-policy reform were optimistic that change was finally coming to the Empire State. But the bill Cuomo signed was typical of New York's strange and troubled history with marijuana policy. Scheduled to launch next January, the medical-marijuana program contains so many gratuitous restrictions and baffling regulations that supporters remain unsure whether the new law is a tentative first step toward meaningful change, or a halfhearted measure doomed to kill sensible marijuana policy.

To see the human cost of Cuomo's delaying tactics, take the case of young Morgan Jones. When she was born four years ago, doctors diagnosed her with a chromosomal abnormality that leads to a number of serious medical conditions, the most dangerous of which is Dravet syndrome, a rare form of epilepsy, which causes potentially life-threatening seizures. By the time she was a toddler, Morgan was taking eight or nine medications and not responding well to any of them. That's when her mother, Kate Hintz, learned that Morgan's seizures belonged to a class of epilepsy that appears to respond well to medical marijuana. "It wasn't a treatment I thought we'd be turning to, but we were running out of options," she says. There was just one catch: The family lives in New York, one of a dwindling number of states where the medical use of marijuana remained entirely illegal.

Hintz threw herself into lobbying the state government, joining with advocates and other families with children whose conditions could be treated with medical marijuana. Hintz and her allies spent several months buttonholing lawmakers, and by the end of the 2014 legislative session, New York was poised to become the 23rd state to legalize medical marijuana.

"We really had gotten our hopes up," Hintz says. But as the specifics of the deal began to emerge, it soon became apparent that Andrew Cuomo was no champion of the medical-marijuana movement.

Quinnipiac polls last year found New Yorkers' support for medical marijuana hovering around 80 percent, and their support for legalizing recreational marijuana between 35 and 57 percent, numbers that track closely to national opinion. But public opinion isn't everything in New York. Unlike the states where recreational marijuana has been legalized, there's no ballot-initiative mechanism for the people to impose their will directly. And in New York, the state government is about as undemocratic as a democracy can be: Decisions are hammered out not on the floor of the Legislature, but in the private negotiations of the proverbial "three men in a room" — the governor and the leaders of the two legislative chambers.

"On medical marijuana, on decriminalization of recreational marijuana, on reducing racist marijuana arrests, New York is not where it ought to be," says Ethan Nadelmann, executive director of the Drug Policy Alliance. "Part of that has to do with Republican lawmakers. Part of it has to do with the Democratic governor."

The troubled history of New York's marijuana laws stretches back generations. In 1973, then-Gov. Nelson Rockefeller, a centrist but tough-on-crime Republican, passed a series of anti-drug laws that established steep mandatory-minimum sentences, even for many first-time nonviolent offenders.

"A lot of young people who had bright prospects were finding themselves spending a couple of years in state prison [over marijuana]," says Richard Gottfried, a New York State Assembly member since 1971. "Gradually, people realized that this had nothing to do with the hard-drug issues that people really cared about."

In the mid-Seventies, the state Parent Teacher Association made marijuana reform a top priority, and Gottfried, with its help, managed to decriminalize possession of less than 25 grams, making it a ticketable violation rather than a crime. Getting the bill passed, however, required some concessions, with the final law carving out an exception: Marijuana in any amount, displayed in the open, would remain a criminal offense. "Once the law was passed, in 1977, I almost never heard of it again," Gottfried says. "Nobody complained. It was working fine. Life went on." 

But in New York, even this modest reform would end up being spun into a retrogressive catastrophe. In the 1990s, as Mayor Rudy Giuliani brought a harsh law-and-order ethos to New York, police began making creative use of the "public view" exception. If you had a dime bag in your pocket, that meant you'd only get a ticket, but if a cop ordered you to empty your pockets, then your weed was in plain view and you might be arrested.

According to the Marijuana Arrest Research Project, the average number of annual arrests rocketed from below 1,000 under Giuliani's predecessor, David Dinkins, to more than 24,000 under Giuliani. The trend kept accelerating under the next mayor, Michael Bloomberg. Over his first two and a half terms, marijuana-possession arrests averaged more than 40,000 per year. "For years, New York City was the marijuana-arrest capital of the country because that loophole was abused," says Karen O'Keefe, director of state policy for the Marijuana Policy Project.

You may be able to guess who made up the overwhelming majority of people being tossed into the maw of the criminal-justice system. Despite research from the ACLU showing that white and black people use marijuana at similar rates, arrest numbers were heavily skewed. Black New Yorkers in Manhattan and Brooklyn, for example, were nine times more likely to be arrested for pot than their white counterparts.

"Marijuana arrests are a gateway to mass incarceration," says Alyssa Aguilera, the political director of VOCAL-NY, a group that advocates for vulnerable New Yorkers, including those affected by the drug war. "The scale and racial disparity tell a story that marijuana is just a way that we can criminalize black and brown folks."

The Fairness and Equity Act, a bill currently under consideration in the state Legislature, seeks to reverse the decades of unequal application of the law. It does it in a very simple way: by removing the public-view provisions of the 1977 decriminalization law. But the act faces steep hurdles: "There's no question that the Republican-controlled Senate is the reason that, in a progressive state like New York, we still have a law like this on the books," says the bill's sponsor, Democratic State Sen. Daniel Squadron, whose district includes parts of Brooklyn and Lower Manhattan.

The logjam in the state Senate is only one of the obstacles the Fairness and Equity Act will have to overcome if it is to become law in New York. Another, perhaps more baffling conundrum, is Gov. Cuomo. A Democratic governor widely thought to harbor presidential ambitions, Cuomo is notoriously inscrutable in his political maneuverings, and marijuana-policy reform is no exception. Cuomo spoke out in favor of decriminalizing public-view marijuana in 2012 and mentioned it in his State of the State address the following year, but the bill never made it out of the Legislature. "There was a moment when it seemed like maybe Cuomo had done what he was going to do on it," says Gabriel Sayegh, managing director of policy and campaigns for the Drug Policy Alliance. "He'd spoken up, but it didn't feel like he put the political weight behind it to get it over the finish line."

Advocates speculate that the 2013 election of New York City Mayor Bill de Blasio has paradoxically made Cuomo less inclined to push for the Fairness Act. "Cuomo says to us, 'I'm off this marijuana thing, I'm out,' " says Sayegh. The governor said the same to the press: "It's not timely the way it was last year."

When he was running for re-election last summer, Cuomo made a deal for the endorsement of the progressive Working Families Party, promising to support an end to the public-view exception.

Since then, Cuomo has gone quiet on the topic, his silence enabled by the failure of the legislation to move through the Republican-controlled Senate.

"But it's like, wait a second," Sayegh says. "You didn't like this issue, then you were for it, then you backed away from it, now you're back on it but we don't see where you're on it because you haven't raised it at all." It's precisely the sort of opaque, contradictory approach that has become Cuomo's hallmark, Sayegh says. "He'll make a speech, he'll take a victory lap, and then when it comes to the brass tacks of getting things done, he's nowhere to be found."

Even the one glimmer of progress for statewide marijuana reform in New York, the passage last year of the medical-marijuana bill, is a story of crippling concessions and half measures.

A year after California became the first state to legalize medical marijuana, in 1996, Gottfried introduced a bill to bring medical marijuana to New York. It got nowhere. He sponsored medical-marijuana legislation the next year, and the next, year after year, without success.

The bill was a repeat victim of bad timing. In 2005, the state Senate appeared to be on the verge of supporting the bill, when in the final weeks of the legislative session, the Supreme Court handed down a decision initially interpreted to mean that state medical-marijuana laws were in jeopardy. "Within a week, people rereading it realized that it didn't do that at all, but by then the legislative session was over," Gottfried says. A few years later, the bill enjoyed the support of then-Gov. Eliot Spitzer. "We were working with his administration, ironing out the details," Gottfried says. "Then in 2008, Spitzer resigned, and we were back to square one."

Once Cuomo became governor in 2010, medical marijuana again became a non-starter. "Nobody would even talk to us about it, other than to say, 'No, we won't talk to you,' " Gottfried says. 

But by June of last year, it became clear that the Legislature was going to pass a medical-marijuana bill with or without the governor's approval. "Cuomo fought to block that bill down to the last days of passage," says Sayegh. "He did everything possible to make sure that bill didn't pass."

But once Cuomo realized he couldn't stop it, he changed tack and demanded dramatic changes to the bill. Gottfried's legislation had included a list of about a dozen conditions eligible for treatment with marijuana, but had included a clause allowing doctors to recommend it for other conditions if they felt they met the standards of seriousness set forth in the bill. At Cuomo's insistence, that clause was eliminated. Cuomo also insisted that initially there be no more than five licensed marijuana suppliers. In April, the Department of Health began accepting applications for these five slots. Applicants must submit a $10,000 application fee and a $200,000 registration fee.

Equally problematic, Cuomo insisted that each of the five licensees would be allowed only four dispensing sites, meaning that a state of 20 million people would be served by all of 20 locations.

Here, Cuomo appears to be looking across the Hudson for leadership. New Jersey enacted medical-marijuana legislation in 2010, but Gov. Chris Christie, who has called medical marijuana "a front for legalization," has kept the program on such a tight leash that five years later, the state has only three operational dispensaries.

In some ways, the restrictions Cuomo negotiated go even further than New Jersey's. As passed, New York's legislation prohibits any smokable form of marijuana, effectively outlawing a cheap and often very effective delivery method, ostensibly on the grounds that smoking is harmful to your health. The current regulations also ban marijuana edibles, restricting medical use to processed extracts that can be consumed with expensive vaporizers or in capsule form. Cuomo also limited distributors to five "brands" of product each, restricting the ability of patients to experiment with different strains to find a mix of active chemicals that works for them.

"Nearly everything that the governor put forward was unworkable and designed to make sure this thing could not function," says Sayegh. "They were seemingly uninterested in patient needs."

The comprehensive gutting of the bill was devastating to its supporters, but they felt they had no choice but to go along. "We agreed to the changes the governor wanted, simply to avoid him vetoing the bill," Gottfried says.

Cuomo's administration is sufficiently impenetrable that those trying to deduce his motivations are often reduced to a sort of Kremlinology of guesswork and tea-leaf scrutiny, but no one questions his strong sense of which way the wind is blowing. "The governor wakes up and looks at the political calculus, and sees if there's a need to do something," says a New York political operative who spoke on condition of anonymity. "He's not a values-driven guy." Visions of a political career beyond New York aren't likely to push him toward marijuana reform, either. "To the extent that he's got national ambitions, his strategy is cultivating rich people and running center-right," the operative says. "Marijuana isn't a big piece of that."

At his press conference trumpeting the new legislation last June, Cuomo stressed caution and control. Medical marijuana "has the capacity to do a lot of good for a lot of people," he said. "At the same time . . . there are also risks that have to be averted." New York's medical-marijuana experiment, Cuomo made clear, would live and die at his pleasure. "The governor can suspend the program at any time," he said.

Supporters still held out hope that when the state Department of Health fleshed out its regulations this year, there would be an opportunity to use its discretionary authority to put together a more reasonable program. They were disappointed. The regulations hammered out by Cuomo's health department are even more restrictive than the statute. Among the new prohibitions: Patients cannot consume any food or beverage at dispensaries. "If you are in a dispensing establishment on a hot day and want to drink from a water bottle, you cannot," Gottfried says. The final regulations make no provisions for people in rural areas far from a doctor and served by nurse practitioners, who aren't authorized under the law to recommend marijuana.

Cuomo's office and the health department argue that the regulations are restrictive for a good reason. "Going forward, we need to make sure that we're not creating a black market and compromising the program by having the initial implementation so broad that it's subject not only to legal challenge but potential shutdown from the feds," said Alphonso David, counsel to the governor. "It's tightly controlled as implemented," says Health Commissioner Howard Zucker. "As we move forward, we'll see what, if anything, needs to be expanded."

Nadelmann says the caution is excessive. "It's as if New York was the first state to legalize medical marijuana," he says. "There seems to be a willful indifference to looking at successful models outside of New York. You look at the things being said about the risks of this getting out of control, it bears no resemblance to states with well-regulated medical systems." 

Most frustrating to Hintz, whose daughter Morgan can suffer from as many as 20 seizures a day, is that New York won't have its medical-marijuana program up and running until next January at the earliest.

"They've basically said, 'We know that you've been waiting years, but you're going to have to wait two more years.' That was crushing," Hintz says. Cuomo's office points out that it has sought a waiver from the U.S. Justice Department to allow for expedited availability, but it has been denied, and without the waiver, there's no way to get legal marijuana to patients any sooner than January.

There have been times over the past couple of years when Hintz and her husband have contemplated moving out of New York, to a state that already has a reasonable medical-marijuana law. The problem, she says, is that in so many other ways, New York is the best place for Morgan to be: The state's Medicaid program grants her a waiver that allows the family to afford to keep her at home with on-site nursing; the family lives close to Manhattan, a center of medical specialists. Leaving feels like it might cause more problems than it would solve. "Ultimately, we decided it was worth the fight to stay," she says. As time goes by, though, with Morgan still unable to access medical marijuana, Hintz struggles to stay optimistic that the law will help her daughter. "I don't want to give up hope. I have to live with the realization that children can die from complications from their seizures, and she's having seizures every day," Hintz says. "But all we can do is keep pushing. If we keep the pressure on our lawmakers, that's the best we can do at this point."