Decriminalizing Marijuana Possession

June 19, 2012

Earlier this month New York Governor Andrew Cuomo proposed legislation reducing the penalties for possession of small amounts of marijuana from a criminal misdemeanor to a violation, (See 2011 NY A.B. 10581 (NS)) arguing the need to reduce the chance that a person will be burdened with a criminal record after being found with only small amounts of marijuana during a police stop-and-frisk.  The relevant New York statute, McKinney’s Penal Law § 221.10, criminally penalizes “public view” possession while private possession is only a “violation”, McKinney’s Penal Law § 221.05. 

The bill mirrors a New York City police directive issued last year for officers to issue violations, not misdemeanors,  for “small amounts of marijuana that come into open view during a search.” See  2012 WLNR 11751302.  Said Cuomo:

It’s incongruous. It’s inconsistent the way it’s been enforced. There have been additional complications in relation to the stop-and-frisk policy where there are claims young people could have a small amount of marijuana in their pocket, where they’re stopped and frisked. The police officer says, —Turn out your pockets.’ The marijuana is now in public view. It just went from a violation to a crime.’

Other states have similar legislation pending.  To find current bills and session laws regarding marijuana penalties, try the following search in Proposed & Enacted Legislation on WestlawNext after choosing “All States” for your jurisdiction (or ST-BILLTXT and LEGIS-ALL on Westlaw Classic):

 marijuana possession misdemeanor violation infraction

For an overview of marijuana possession statutes currently in effect, the 50 State Surveys is a great resource.  On WestlawNext, select “Statutes and Court Rules”, then “50 State Surveys” under “Tools and Resources.” Enter “marijuana” in the search box.  Select “Illegal Drugs: Marijuana”, 0030 SURVEYS 3 (the search also produces surveys for cocaine, methamphetamine and heroin, which may also be of interest).

Also, for a recent discussion of how tightened state budgets are leading to the decriminalization of small amounts of marijuana, See THE WAR ON DRUGS, THE POLITICS OF CRIME, AND MASS INCARCERATION IN THE UNITED STATES, 15 J. Gender Race & Just. 315.  See also, RACE, DRUGS, AND LAW ENFORCEMENT IN THE UNITED STATES, 20 Stan. L. & Pol’y Rev. 257.  To produce these articles, and others regarding drug laws, enforcement and disparate incarceration rates, run the following search in Secondary Sources on WestlawNext (TP-ALL on Westlaw Classic):

ti(drug marijuana marihuana /5 law regulat! crim! /10 “united states” u.s.)