Scrapping marijuana raps are a daunting task for an unprepared system

Ben Fractenberg/THE CITY

This story was originally published on JUNE 28, 2019 by THE CITY.

New York state lawmakers last week voted to decriminalize small amounts of marijuana and expunge thousands of low-level charges — but exactly how that process will work is hazy.

The bill would eliminate criminal charges for possession of less than two ounces of marijuana, reducing offenses to non-criminal violations. The measure also would slash fines and clear records on low-level pot convictions.

Gov. Andrew Cuomo says he supports the proposal. After the Legislature sends the bill to the governor, he has 10 days to sign or veto it.

‘A New World for New York’

The weed rollback will be new territory for the state’s court system, which would be charged with expunging a huge amount of records and alerting law enforcement officials of the vacated convictions.

A full estimate of how many records would have to be expunged hasn’t been determined, according to the state’s Department of Criminal Justice Services.

New York’s court system doesn’t currently have a method for expunging criminal records — and the undertaking will require a “very involved legal process,” Lucian Chalfen, a spokesperson with the Office of Court Administration told THE CITY.

“We are talking about hundreds of thousands, if not millions, of criminal records to be removed from our database,” Chaflen said.

Expunging records would be a “new world for New York,” said Phil Nash, an attorney at Long Island-based Collins Gann McCloskey & Barry who serves on the New York State Bar Association’s Sealing Committee, which deals with closed records and expungements.

The Legislature’s proposal “directs that a lot of things to be done and it’s going to take time to go through,” Nash said.

Illinois, which became the 11th state to legalize marijuana earlier this week, plans to expunge the criminal records of roughly 800,000 people who were charged for purchasing or possessing 30 grams of marijuana or less.

Mandate to Spread the Word

New York’s four-page bill, which has wide-ranging consequences for several state and city agencies, might require some tweaks, observers say.

The bill directs the Office of Court Administration and Department of Criminal Justice Services to spread the word “through its website, public service announcements and other means, in multiple languages and through multiple outlets.”

People need to know about plans for automatic expungement of certain past convictions, how to seek a vacated record and “the impact of such changes on such person’s criminal history records,” the bill states.

The Department of Criminal Justice Services is “reviewing the legislation and will implement a plan that addresses all of the agency’s new responsibilities,” a spokesperson said.

Repercussions Remain for Immigrants

Meanwhile, federal immigration officials will still be able to use prior marijuana convictions against a person applying to become a United States resident, said Marie Mark, an attorney with the Immigrant Defense Project.

“Let’s say I’m undocumented and I’m applying for a green card. For that person, if they have a prior marijuana conviction, they’re not eligible for a green card,” Mark said.

An individual who has a record for low-level marijuana possession will have that record marked as expunged, under the Legislature’s measure. But the record will still exist unless the individual or their lawyer makes a written request to destroy it.

Mark suggested that people in immigration proceedings should not asked to have their conviction records destroyed — because that makes it harder for them to get those convictions vacated by the courts.

“My burden is to provide Immigration with evidence of the outcome of every arrest,” Mark said. “So even if the arrest is expunged, I have to show what happened because Immigration has its own definition of what a conviction is.”

In an effort to address possible immigration issues, Assemblymember Crystal Peoples-Stokes (D-Buffalo) and Sen. Jamaal Bailey (D-Bronx), who sponsored the decriminalization and expungement proposal, also introduced a bill that would allow courts to vacate low-level marijuana convictions. Neither lawmaker responded to requests for comment.

Housing and Child Welfare Risks

Aside from the potential immigration issues that could arise, smoking or possessing marijuana can still land you in trouble if you live in federally subsidized public housing, said Emma Goodman, a staff attorney with Legal Aid.

Marijuana use may be grounds for eviction, since pot is still illegal under federal law. Prior pot use also can be invoked to deny a New York City Housing Authority application.

But exactly how NYCHA will respond to decriminalization of marijuana in New York State remains to be seen. A spokesperson for the agency would only say that NYCHA is subject to the regulations of the federal Department of Housing and Urban Development, which views weed as a controlled substance.

Goodman also noted that drug use by parents still can result in children being removed from a home.

The Administration for Children’s Services says it only removes children when it’s believed they are at imminent risk of serious harm.

“Just like alcohol use, child protection teams assess the impact of marijuana use on parents’ ability to care for and keep children safe. Marijuana use in and of itself does not and would not lead to a removal of a child,” said Marisa Kaufman, an ACS spokesperson.

This story was originally published by THE CITY, an independent, nonprofit news organization dedicated to hard-hitting reporting that serves the people of New York.

Cannabis advocates sue AG Sessions and the federal government

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On July 25, a group of advocates gathered in New York to announce a lawsuit challenging the constitutionality of the Controlled Substances Act (CSA). The night before, lawyers representing a diverse group of five plaintiffs filed a federal complaint against attorney general Jeff Sessions, the Drug Enforcement Administration (DEA) and the U.S. federal government.

The plaintiffs include Marvin Washington, a former NFL player-turned cannabis entrepreneur; two children and one veteran who are medical marijuana patients; and the New York-based Cannabis Cultural Association. The complaint challenges the constitutionality of marijuana’s Schedule I status (“no currently accepted medical use”) by pointing out the government’s seemingly untenable stance of having a patent for the medical use of certain cannabinoids.

The suit also delves into the racial disparities of drug enforcement and the challenges presented to patients who must relocate to access the potentially life-saving medicine. Such patients have come to be known as medical marijuana refugees.

“Although not styled as a class action, this lawsuit stands to benefit tens of millions of Americans who require, but are unable to safely obtain, cannabis for the treatment of their illnesses, diseases and medical conditions,” the complaint reads.

“I’m confident that together, we’re going to win this case against the federal government,” said Michael Hiller, founder of Hiller, PC, which is representing the plaintiffs in the suit and where the press conference took place.

Hiller noted Sessions’ request to use federal funds to prosecute patients, and the AG’s support of civil asset forfeiture (“which raises its own very substantial constitutional issues”) and mandatory minimums for low-level drug offenses.

“The Justice Department led by Jeff Sessions is not only on the wrong side of this issue, but he’s going in the wrong direction,” Hiller contended. “This must stop. This lawsuit is going to provide an answer. The Controlled Substances Act is unconstitutional on multiple grounds.”

The five plaintiffs have varying reasons for joining the suit. An investor in several cannabis companies, Washington wants to participate in the federal Minority Business Enterprise program, but can’t because of the federal ban on marijuana. “The reason I’m a part of this lawsuit is not as a football player, it’s as a member of my community,” he stated. “The African-American community and people of color… have been unfairly punished [under the CSA].”

Washington also mentioned studies that show declines in opioid abuse in states that legalized medical marijuana and how opioid problem impact current and former NFL players. “If you extrapolate that across the country, I believe you can heal the ills that is hurting this nation,” he declared. “I believe I’m on the right side of history, and we just need our Department of Justice and the DEA to get on the right side of this fight.”

Three plaintiffs in the suit are patients that have been helped by medical marijuana. Eleven-year-old epilepsy patient Alexis Bortell moved with her family from Texas to Colorado in 2015 to access medical cannabis. She’s been seizure-free for the last two years.

Six-year-old Jagger Cotte suffers from Leigh’s Disease, a rare neurodegenerative illness. According to the complaint, his life has been extended and pain relieved thanks to his cannabis regimen.

Army veteran Jose Belen fought in the Iraq war, where he developed PTSD. The VA prescribed opioids proved to be ineffective; instead, he found relief with medical marijuana.

The patients named in the suit are unable to travel freely throughout the country and can’t enter federal buildings with cannabis. Those with military ties are not allowed on military bases and aren’t able to obtain the benefits they’re entitled to.

The Cannabis Cultural Association advocates for people of color in the industry. “No other laws demonize people of color more than cannabis laws,” said Jacob Plowden, one of the organization’s co-founders. “These drug laws must change.”

While Hiller’s hoping that Sessions and U.S. government will “not contest our lawsuit, but to get behind it,” others at the press conference called on the attorney general to step down.

“We call on you to either assist us in reversing the terrible impacts of this law or step aside and let somebody else do that,” said David Holland, co-counsel in the case and executive legal director for Empire State NORML.

Numerous legislative efforts to amend marijuana’s legal status have not succeeded. The Ending Marijuana Prohibition Act of 2017, which would remove cannabis from the CSA, has yet to be voted on and probably won’t be. Bernie Sanders (I-VT) originally sponsored it in the Senate in 2015 and it was reintroduced in the House by Tom Garrett (R-VA) and Tulsi Gabbard (D-HI) in February.

Last August, the DEA rejected two administrative rescheduling petitions. At the time, Freedom Leaf contributor Paul Armentano provided this history lesson:

“The DEA previously rejected several other rescheduling petitions, including a 2002 petition filed by a coalition of marijuana law reform and health advocacy organizations and a petition filed by NORML. That petition was not acted upon by the agency until 1988, and was ultimately set aside by the DEA in 1990.”

This post was originally published at freedomleaf.com. Check out Freedom Leaf magazine for this editor’s Word on the Tree column.

Rhode Island medical marijuana patient wins in court

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On May 23, a Rhode Island court ruled in favor of medical-marijuana patient Christine Callaghan, arguing that a company discriminated against her for off-duty medical cannabis use.

The ACLU filed a lawsuit on behalf of Callaghan in 2014 after the University of Rhode Island graduate student was denied a summer internship at Darlington Fabrics in Westerly, R.I. She uses cannabis to treat debilitating migraines.

The graduate company withdrew the internship after she informed its human-resources department she was a registered medical-marijuana patient.

“She explained that she would not bring medical marijuana onto the premises or come to work after having taken marijuana,” said the ACLU in a statement about the lawsuit.

“I just want Darlington and other companies in Rhode Island to treat me and other licensed patients the same way they would treat any other employee with a chronic health condition who is taking medication, as the law requires,” Callaghan explained at the time.

State Superior Court Judge Richard Licht concluded that off-duty cannabis use shouldn’t matter. “Marijuana need not enter the employer’s premises,” he wrote. “Indeed, this is all that is required to maintain a drug-free workplace… What an employee does on his or her off time does not impose any responsibility on the employer.”

While a lawyer for Darlington argued that the state’s medical marijuana law did not give a clear right to sue based on discrimination, the judge ruled that the law implied that it did. The company plans to appeal his ruling to the state Supreme Court.

The issue of workplace discrimination against medical cannabis patients has surfaced in various states with medical marijuana programs. In 2015, the Colorado Supreme Court ruled against a patient who was fired for his off-duty cannabis use. The following year, a county employee in Washington State got his job back after an arbitrator ruled that his firing was “too harsh a punishment” for his off-duty medical cannabis use.

This post was originally published at freedomleaf.com. Check out Freedom Leaf magazine for this editor’s Word on the Tree column.