New York’s Legal Weed Law Could Still Screw Over Black People

New York politicians legalized marijuana this week, and according to them, they did it for people like Floyd Jarvis. Born in Guyana, for nearly 30 years Jarvis has lived in Canarsie, a residential neighborhood on Brooklyn’s far southern end.

If New Yorkers know it at all, they know Canarsie as the terminus of the L-train or where murdered rapper Pop Smoke was born. Until Wednesday, when New York legalized marijuana for adults, Canarsie was a drug-war hot zone.

Like more than 60 percent of his neighbors, Jarvis is Black. Like some of them, he sold weed to get by. And like many Black male New Yorkers, he was arrested for it—twice. More than 85 percent of everyone arrested during NYPD’s war on petty pot possession, from the Rudy Giuliani 1990s to Bill de Blasio’s 2010s, were Black and Latino, mostly men. A 2018 study found black people in places like Carnasie were four times more likely to be arrested for marijuana possession than someone in Greenpoint, a whiter neighborhood on the other side of the borough.

Despite statewide decriminalization in 2019, this trend continued throughout the COVID-19 pandemic: 90 percent of the marijuana arrests in the fourth quarter of 2020 were also Black and Latino.

“When we check the war on drugs and when we check the data on New York City, we see marijuana was criminalized on on the backs of out-group males: Black men and Latino men and boys,” said Jarvis, who researched underground cannabis market dynamics—and, specifically, how to “keep black markets Black”—while studying urban policy at the New School.

Along with a drug-war ceasefire, architects of New York’s Marijuana Regulation and Taxation Act are promising Jarvis that he can sell marijuana again—but this time, legally. And even if he chooses not to, his neighbors and every other Black and brown New Yorker are being promised that legalization will shower them with money.

Once commercial sales begin, possibly as soon as January 2022, 40 percent of the proceeds from taxed marijuana sales are supposed to go to “impacted” neighborhoods like Canarsie. (The rest is promised to schools and drug treatment; in a departure from other states, police get zero.)

Profits from pot sales are directed into the pockets of Black entrepreneurs, who are guaranteed roles in legal cannabis if they want it. Half of all cannabis businesses licenses are promised to “social equity applicants,” defined as people from over-policed and low-income neighborhoods of color, with marijuana charges on their records—people and places exactly like Jarvis and Canarsie.

These lofty promises are why Gov. Andrew Cuomo, state Sen. Liz Krueger, and state Assembly Majority Leader Crystal Peoples-Stokes—the latter two the main architects of the legalization plan—are touting it as  the most progressive marijuana legalization scheme in the United States.

“They’re saying it’s more progressive than California, and for that it’s good,” said Jarvis. “But we’re naturally cautious.”

He has reason to be. So far, marijuana legalization has meant a cash windfall almost exclusively reserved for white investors and entrepreneurs, with little economic opportunity or visible shift in Canarsie-like corners of Chicago, Los Angeles, Denver, or Seattle.

Experts and advocates told VICE News that in order to ensure legalization will create a “fair and inclusive” market, as Krueger promised on Tuesday, lawmakers and regulators alike have much more to do.

“On paper, this is a strong plan, with economic and social benefits to non-white communities,” said Jeffrey A Fagan, professor of law at Columbia University’s law school, an expert on policing and crime who has researched drug laws. “The rollout plan—siting, licensing, oversight, is uncertain.”

That means avoiding the failures of other commercial weed laws around the country.

Black market

Bronx native Will Perry, who is Black and Jewish, has experienced them first hand. Perry moved west in 2014 to enter the legal cannabis business. He started in Los Angeles, with a gray-market, “trap-style non licensed grow,” and then relocated to Portland, Oregon, where he and his business partner, Adriana Ruiz Carlile, a Brooklyn native, co-founded a wholly legal, high-end cultivation business called Magic Hour Cannabis.

Despite a reputation for progressive policies, Oregon has an extremely limited equity program. Yet BIPOC entrepreneurs like Carlile and Perry are finding success. There are no strict caps on how many dispensaries or grows are allowed. Permit fees to obtain a license are relatively low.

New York’s legalization law “is much better for Black/brown communities than any other state, but that’s a low bar,” Perry said. “I definitely want to get into New York, since I’m from there. But the social equity aspect and allocation of tax revenue to disenfranchised communities is just one part of the puzzle.”

Wonky, boring details like caps on dispensaries and license fees can determine whether legalization is a restorative justice tool or a neoliberal crony capitalists’ dream. For an illustration how, compare small-business friendly Oregon to corporate playground Illinois.

Oregon legalized recreational cannabis in 2014, the same year Illinois started with medical marijuana. But instead of a wide-open, “free” market, Illinois slapped arbitrary limits on how many cannabis sales and cultivation licenses would be allowed. This triggered a fierce rush for licenses that welcomed fantastic amounts of capital as well the ideal setting for corruption.

When commercial sales in Illinois began on Jan. 1, 2020, it was almost exclusively large corporations, many with footprints in other states, that sold a reported $1 billion worth of legal weed. Unlike Oregon, Illinois has an equity program—at least on paper. In reality, a glacial-slow process, rife with allegations corruption, has meant Black and brown equity applicants in the state are still waiting for their turn to enter what will be a market tilted firmly against them.

The New York law is small business friendly: small operators will be allowed to grow, process, distribute and sell cannabis, privileges not immediately afforded to legacy farmers and small businesses in other states like California. But it’s still unknown how many licenses will be allowed—in the state, and in various cities—and how much any of them will actually cost.

“On its face, New York State is doing what we hoped it would. But we’re on pause until they work out all the details,” said Solonje Burnett, a Brooklyn-based cannabis influencer and the co-founder of Humble Bloom, a consultancy and marketing firm that works with women- and POC-owned brands. “Overall, we need to know the details of how the program will roll out.”

Will there be five dispensaries in Brooklyn, or fifty? (The market might support many more than zoning officials or skittish NIMBY-minded community boards will allow. San Francisco, with less than one-third the population of Brooklyn, has nearly 50.) Will a license cost $10,000, or $100,000?

These are the details, as-yet undetermined by state lawmakers and regulators, that can determine whether Black entrepreneurs can find a foothold in New York, or if the market will be accessible only to major players like the Illinois giants.

“The framework would be even stronger were there not just an ‘equity’ emphasis based on race and ethnicity, but also an economic one, to strengthen investments in new minority owned startup businesses,” Columbia’s Fagan said.

Building an industry

Unlike Illinois or Oregon, New York must build an adult-use cannabis industry mostly from scratch.

The state has medical marijuana, but thanks to some of the most restrictive qualifying criteria in the country, the program is tiny, with only 145,025 patients out of a state population of more than 8.5 million, according to the most recent data. And there is a whiff of an Illinois-like future: several medical licenses are held by publicly traded companies, who have an automatic head start in the adult-use industry simply by existing.

This also means that New York has possibly the biggest and most entrenched illicit market in the US. New York City alone consumes 77 metric tons of marijuana a year, according to a 2018 estimate.

"There is little possibility the New York plan, as drafted, can meet that demand out of the gate or even on year five,” said Sally Nichols, the New York City-based president of Bloom Farms, a nationwide cannabis brand with adult-use cannabis operations in California and federally-legal, hemp-based CBD footprints in 30 other states.

This means a lane for the illicit or “traditional” market to persist and thrive. How New York wrestles with underground sellers will determine if it fulfills its social-equity promises—or uses legalization to reintroduce policing into weed.

The state will have to resist calls from licensed competitors as well as concerned citizens to direct law enforcement on the illicit market. Instead of replacing the traditional market with corporate weed, New York will have to encourage underground entrepreneurs to go legal, with patience as well as friendly financing and permitting.

Regulators will also have to demonstrate patience and willpower. Elected officials will demand legal weed hit revenue goals early—a real liability with state budgets wrecked by the COVID-19 pandemic—and call for higher taxes on legal products as well as exorbitant licensing feeds. Either could sink the legal market.

There’s also plenty more the state could do to be really progressive. “There is no money set aside to monitor racist police practices, which is why we’re here in the first place,” said Carl Hart, a neuroscientist and professor of psychology at Columbia University as well as an outspoken drug-war critic.

Even after legalization, racial disparities in arrests continued in other states, Hart pointed out. If that happens in New York, “there need to be some consequences,” he added. “You hit [police] where it hurts, and take away their budgets.”

Recent history suggests this is a real risk in New York. Even after the state decriminalized cannabis in 2019, NYPD were still using money and clogging courts policing cannabis.

Bronx Defenders, which provides criminal defense services for about 40 percent of criminal cases charged in that borough, is currently handling 200 cases where marijuana charges are involved—40 of which where a cannabis offense is the top charge, said Eli Northrup, an attorney and policy counsel.

“And I know some of those are buy-busts,” where NYPD set up stings using cannabis as bait, he added. “NYPD is going out and spending money targeting marijuana.”

In that context, legalization in New York did not have to make huge promises to be legitimate progress. But it did. Fulfilling them will require a decade-long commitment that will have to continue after legalization’s architects leave office.

“The bill’s not 100 percent,” Jarvis said. “The first step is getting it legalized and getting these fucking people off our backs.”