After Recent Setbacks, Will New York and New Jersey Legalize Pot?

Despite what felt like sea-changing momentum, marijuana legalization in New York and New Jersey have met serious roadblocks — and at almost exactly the same time. Just a few months ago, it had seemed all but certain in both states, with supportive governors backing progressive legalization poised to pass Democratic-controlled statehouses. Then, in the span of just a few days in late March, both states saw their efforts fall apart. Officials remain optimistic, but refuse to give a timetable for possible legalization.

In New Jersey, lawmakers reportedly had the votes to pass a legalization bill through the General Assembly, which the Governor would have signed into law. But things fell apart in the Senate, with leadership pulling the bill from the floor just before it went to vote.

Barely 24 hours after making that decision, that state’s senate president, Stephen M. Sweeney, heaved a deep sigh into the telephone when asked how the process had been. “Brutal,” he says. “It was brutal.”

Sweeney had been instrumental not just in drafting the legalization bill, a campaign priority of Democratic Governor Phil Murphy, but in working to corral the votes to move it through the state legislature. He says he spent more time on than any other in his career, only to watch it collapse just inches short of the finish line. He withdrew the bill because he believed it wouldn’t secure the 21 votes it needed to pass his chamber.

“We thought we put a really good bill together,” says Sweeny. “There was a path, we thought, to 21 — I still think there is, that’s why I’m not giving up on it.”

“Brutal,” says one New Jersey politician of the cancelation of the vote. “It was brutal.”

Meanwhile, in New York — where a bill barring most workers from employer drug tests for marijuana would later pass — officials were engaged in furious negotiations, ultimately unsuccessful, to include cannabis legalization in the state’s $175 billion 2019 budget. Governor Andrew Cuomo had come around to supporting legalization after years of opposing it — he called pot “a gateway drug” as recently as 2017 — pledging in December of 2018 to legalize pot within the first 100 days of 2019. With the budget passed on April 1st without cannabis legalization, it was clear that he’d missed that deadline.

“The budget is an important date, but it’s not the only date,” says Alphonso David, Counsel to the Governor and the Governor’s point person in legalization negotiations. “The legislative session ends in the middle of June. So we have several more months to engage with the legislature on this issue.”

Following the of advice from an informal network of officials in states and countries that have already legalized marijuana — including Colorado, Washington, and Canada — New York and New Jersey are attempting to join Vermont as the only states to pass legalization through the legislature. Though nine of the 10 states that have passed recreational marijuana laws have done so through ballot measures, these officials have lately begun advocating against them, since they usually take the form of constitutional amendments, which means that tweaking regulations usually requires additional costly and time-consuming public votes.

When a state legalizes marijuana though its statehouse, however, it is free to amend the laws as it sees fit — but passing it in the first place is much more difficult. Vermont’s system, it’s worth noting, simply legalized possession of marijuana and stopped short of setting up a system for it to be bought and sold.

“They were really, really close to a deal,” says Melissa Moore, deputy state director in New York for the Drug Policy Alliance, a pro-legalization lobby group. “This has become conflated and caught up with other issues that are being negotiated that have nothing to do with marijuana.”

Both states’ bills aimed to do more than simply legalize pot, and included broad provisions that would have addressed the social cost of decades of marijuana prohibition. Given the scale of marijuana arrests, many activists and lawmakers think this component is essential to any legalization framework. In New York, there have been 800,000 low-level marijuana arrests in the last 20 years; in New Jersey, 600 people are arrested every week for possessing small amounts of marijuana. New Jersey’s bill would have expunged the criminal records of anyone arrested with less than 50 grams of pot. In New York, initial proposals would have reinvested funds from taxes on legal marijuana sales into the communities hit hardest by marijuana prohibition, though members disagreed on whether the Governor’s proposal as part of the budget process was specific enough on this issue.

“They were really, really close to a deal,” says one advocate, of the bill in New York.

It was these very provisions that caused problems for many lawmakers. In New Jersey, the current statute doesn’t discriminate between possession of marijuana between 28 grams and five pounds, and some lawmakers worried about seeming to give a pass to those convicted of higher-level possession, whom many assumed to be drug dealers.

“We get this [reputation] as a deep blue state. We’re not. We’re moderate,” says Sweeney. “Trump won my district. We’re in districts where if you make a dumb mistake, you’ll lose your seat. I absolutely lost two [senators] for that five pounds thing, and had another two really questioning.”

In New York, talks reportedly broke down around the ideas of community reinvestment. Long part of the plan for marijuana legalization, the Governor’s draft proposal offered only vague assurances to use some marijuana tax monies to address unspecified social justice issues.

“I know the Governor, and quite frankly I believe he would have done that. But here’s the problem: he’s not always going to be the Governor, and I’m not always going to be in the Assembly,” says Crystal Peoples-Stokes, New York State Assembly member from Buffalo, and co-sponsor of the Marijuana Regulation and Taxation Act, first introduced in 2013. “At some point, somebody else is going to be here. Should we leave it to someone else to decide if something like this is continued? I think not. [This process] took decades, and generations of peoples’ lives have been destroyed by mass incarceration. There has to be some continuity.”

After the defeat, activists expressed disappointment, and pledged to keep up their pressure on elected officials.

“We believe that New Yorkers deserve more than unmet promises and empty rhetoric around marijuana reform,” wrote the Drug Policy Alliance’s New York President Kassandra Frederique in a statement. “Each day marijuana legalization is not passed, someone is arrested, deported, evicted or loses custody of a child because of criminalization. Each day that New York’s leaders maintain prohibition, someone can’t pass a background check, has their parole revoked, or loses a job.”

Josh Weinstein, founder of the cannabis industry group CannaGather, says his organization will continue to push for new laws. “While we’d love to see cannabis legalization sooner rather than later, we look forward to working with policy stakeholders to and their constituents on the need for timely cannabis regulation and taxation throughout the legislative session and beyond,” he wrote in a statement to Rolling Stone. “If you support legalization, now is the time to reach out to your lawmakers and let them know.”

“Each day marijuana legalization is not passed, someone is arrested, deported, evicted or loses custody of a child,” said one advocate.

Though leaders in both states remain committed to legalization, they are cautious in their predictions. While New Jersey lawmakers will return to working on their bill, which they hope to pass this year, New York faces the relatively more difficult task of passing a standalone law outside of the budget process, which offered lawmakers some cover as it would have passed as part of a much larger package.

David declined to say whether he expects legalization to pass before the end of New York’s legislative session in June, but said the Governor’s office would continue working on it.

“The administration is going to work with the legislative leaders and the members of the legislature to try to address the concerns that have been raised,” he says, adding that it was important to focus legislators and the public on the facts around marijuana legalization.

“Over the next few months, we will continue to engage with legislators [and stakeholders] to make sure that we’re all operating with all of the facts, so that we can arrive at an informed decision, at an informed place, where we can make a decision on what policy we think is important for the state to adopt,” he said.

Sweeney made a similar pledge for New Jersey. “I’m not giving up the fight by any means,” he said. “Adult use will happen in New Jersey, one way or another.”

“We don’t have the luxury of stopping,” said Moore. “Because every day that criminalization is here and present in New York is another day that somebody gets deported or loses custody of their kids or is unable to pass background checks. What you’re going to see is advocates retooling the campaign, and really pushing back … marijuana justice is necessary here in New York.”