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Governor Hochul Wants to Get Back in the Marijuana Enforcement Game

Defense attorneys say that huge fines on illicit weed could reopen the door to an NYPD crackdown.

The storefront of an unlicensed cannabis vendor in Stuyvesant Heights, Brooklyn.
(Hell Gate)

It's been almost two years to the day since New York state legalized recreational cannabis—but legislators and law enforcement alike are still figuring out how to manage the legal weed market. Piecemeal raids targeting weed bodegas have failed to stop new storefronts selling unlicensed cannabis from popping up on what feels like every other block. In February, Manhattan District Attorney Alvin Bragg tried to shift responsibility to the landlords renting out space to these gray market vendors, and so far has successfully shut down just a single smoke shop in the East Village. Now, Governor Kathy Hochul is trying her hand at hitting these businesses where it hurts—in the bank account. Last week, Hochul introduced a new bill aimed at regulating the cannabis market with proposed fines of up to $150,000 for people in possession of unlicensed, untaxed weed, and up to $200,000 for its sale—plus, the introduction of a few new Class E felonies for flouting tax law. In other words, back to criminalization.  

Concerns immediately swirled around how, exactly, these new fines would be enforced—especially as the state's legal market has so far faltered (to put it lightly). "It is now generally accepted within the cannabis community that the Office of Cannabis Management has thus far completely failed in its mission to help develop a robust cannabis industry in New York state," Steve Zissou, a lawyer representing the nonprofit Empire Cannabis Club, wrote in a New York Upstate op-ed. Zissou called the OCM's regulatory rollout "chaotic" and "often indecipherable" and expressed concerns that Hochul's bill would "restart the War on Drugs'' that the Marijuana Regulation and Taxation Act, which legalized weed in the state in 2021, aimed to correct with its equity measures

Reached for comment about the new bill, Hochul's office noted that enforcement of the proposed fines would fall to OCM and the Department of Taxation and Finance. "Governor Hochul's proposal would support the growth of New York's equitable cannabis industry and crack down on storefronts and business owners selling unlicensed products," the governor's office said in a statement. "This proposal will not change the fact that it is legal for adults to purchase and possess cannabis." The Office of Cannabis Management declined to officially comment for this story.

Eli Northrup, the policy director for the Bronx Defenders, told Hell Gate that he can appreciate the need to regulate New York's "Wild West of Weed" and make room for legal entrants into the space—but worries that imprecise language in the proposed bill could open the door for the NYPD.

"I'm looking at this through my lens as a public defender of, every time you come up with some sort of enforcement or penalty, even if you intend it to apply to one set of people, if it can be used to criminalize or marginalize people who are overpoliced, it will be," he said. 

He pointed to two particular provisions as cause for alarm. "Any amount of illicit, untaxed cannabis leads to up to a $150,000 fine—I think that technically would be enforced by the Department of Taxation and Finance. I think right now in the law, it's tied to the amount of cannabis that's seized. It just makes no sense to me why they need to delink [the amount and the size of the fine]," he said. "Then, the one that creates a new crime for willfully evading tax law—NYPD can use that. Any criminal law, even in the tax law, can be enforced by the police."

Northrup said they already see similar enforcement for sales of untaxed cigarettes. "If somebody went in there and had purchased cannabis that was not taxed and they had it in their possession, the NYPD could stop them, arrest them, search them, and whatever they found on them, try to use it," he said.

Melissa Moore, the director of civil systems reform at the Drug Policy Alliance, said she shares Northrup's concerns about the creep back into criminalization for cannabis possession.

"We're always looking at, how do we have the best guardrails in place against that kind of overtly racist, targeted enforcement?" she said. "What needs to be done to uphold the actual social interest, especially the social equity program, within the bill and making sure that things are happening aboveboard? That's the delicate line that we're walking, but creating a bunch of new Class E felonies, to our minds, does not fit the bill there."

Moore pointed to the NYPD killing of Eric Garner, originally approached by the cops while selling loose cigarettes, as a worst-case scenario for law enforcement's reentry into cannabis regulation.

"OCM is taking a big swing in terms of doing things in a way that hasn't been done in other states," she said. "It's definitely to be applauded, and there are gonna be growing pains within that process. It's incumbent on us to be able to hammer those out in a way that's responsible and doesn't rely on the criminal legal system hammer that we've seen used so inappropriately for so long."

According to a representative from the office of State Senator Liz Krueger, lead sponsor of the MRTA, the bill Hochul publicized is not a done deal for inclusion in the state budget, which is set to be passed this week. 

"Three-way negotiations are ongoing, as they were before the governor released her draft," the representative told Hell Gate. "Senator Krueger's goal remains giving OCM and DTF the tools they need to tackle the problem of unlicensed retailers and protect the growing, equity-focused licensed market. She is hopeful the final product of these negotiations will be able to achieve that."

On that point, even critics of the proposed bill agree. "We were really intentional, when pushing for the MRTA, to eliminate most criminal penalties," Northrup said. "I understand they want this to be a heavily regulated industry, [and this bill] gives them the hook to be able to do more, but I don't think they need all these new penalties that they created in order to do what they need to do. And I think, ultimately, they know that, too."

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