Despite recent headlines about New York City dropping marijuana possession cases and expunging convictions, NYPD cops and prosecutors are still arresting and threatening people with jail time for cannabis possession. They’re using a legal loophole to do it.
Scott Hechinger is a senior staff attorney at Brooklyn Defender Services, one of the city’s largest public defender agencies. One of his colleagues is defending a client who was arrested recently for using a cannabis vape pen. Hechinger drew attention to the situation Saturday on Twitter.
Lull while I wait for interpreters (Spanish & Punjabi). My colleague just met client charged w/ possession of a controlled substance for allegedly smoking “THC oil.” Remember when NYPD wasn’t going to be arresting anyone for low level marijuana possession? They found a loophole!
— Scott Hechinger (@ScottHech) September 15, 2018
According to Hechinger, “THC oil” is classified differently than cannabis leaf. The THC oil in a common vape cartridge, he says, is considered a Class “A” misdemeanor, which is punishable by up to a year in jail.
The low-level marijuana offender in question was handcuffed and jailed overnight for possession of a controlled substance—a little more than a week after Brooklyn DA Eric Gonzalez announced an initiative to erase up to 20,000 low-level cannabis convictions—”solely [because] he was smoking a vape pen [and] not a joint,” Hechinger said.
This draconian approach contradicts both the spirit and the letter of a new, lenient approach to marijuana possession announced earlier this summer by New York City Mayor Bill de Blasio and Police Commissioner James O’Neill.
New York state law draws a distinction between marijuana and THC oil. The NYPD is exploiting that loophole.
It also illustrates a glaring loophole that allows the NYPD to continue to “disproportionately and unnecessarily target and interact with only black and Latino people living in certain neighborhoods over something that should not even be criminalized,” said Hechinger.
“The THC oil loophole is just one of many loopholes in the policies, which draw exceptions to the no-arrest policy for those with certain criminal records or those on parole, which merely replicate the racial disparities that already exist,” Hechinger told Leafly on Monday.
And “it’s not just the prosecution,” he added. “It’s also NYPD, who is continuing to arrest people for suspected THC oil. Which makes little sense given that it’s actually a safer, cleaner, less intrusive manner of using marijuana.”
NYPD: No Comment
The NYPD’s public information office did not respond to messages seeking comment left Monday and Sunday. A phone message left at the Kings County District Attorney’s Office in Brooklyn was not returned. Leafly will update this story if we receive a response.
In June, following years of high arrest rates for nonviolent marijuana possession that disproportionately affected people of color, de Blasio announced that New Yorkers caught with small amounts of cannabis would receive a summons to court rather than be arrested.
In response, Cyrus R. Vance, Jr., the Manhattan district attorney, and Eric Gonzalez, the Brooklyn district attorney, both announced that they would vacate past misdemeanor marijuana-possession convictions going back decades, and would decline to prosecute new cases.
Under my Office’s new initiative, individuals w/ a low-level conviction for #marijuana possession will have the opportunity to erase that criminal record completely. I will share additional details about our plan later this afternoon @LRBC_Online. #StayTuned #Justice2020 https://t.co/U8xFI1vtds
— Eric Gonzalez (@BrooklynDA) September 7, 2018
Oil vs. Flower
New York state law draws a strong distinction between possession of marijuana flower and marijuana oil. Possession of less than a quarter-ounce of concentrates is a misdemeanor; possession of any more is a felony. De Blasio and the district attorneys of Manhattan and Brooklyn have pledged to stop arresting people for marijuana. But the NYPD and Brooklyn DA’s office apparently have carved out an exception for vape pens, considering them a separate category worthy of a Class A misdemeanor. According to New York state law: “Misdemeanors are grouped into one of three classes: Class A, Class B, or Unclassified. Upon conviction of a Class ‘A’ misdemeanor, a court may sentence an individual to a maximum of one year in jail or three years probation. In addition, a fine of up to $1,000 or twice the amount of the individual’s gain from the crime may be imposed.”
This arbitrary designation creates a legal loophole that allows police and prosecutors to continue to treat nonviolent cannabis possession cases like serious crimes, observers say.
Cannabis Is Cannabis
By nearly every metric, cannabis oil—cartridges of which are the most important part of the battery-and-tank combinations popularly known as “vape pens”—is the fastest-growing method for consuming cannabis. Celebrity comedian Whoopi Goldberg was so enamored of her vape pen she once wrote an ode to it.
And in a twist, New York State’s restrictive medical marijuana law means that non-flower products like vape pens are some of the most prevalent products available on the market.
The homepage of dispensary chain MedMen’s New York City location advertises five different vape-oil cartridge blends for sale—exactly the type of products that are seeing New Yorkers charged with drug possession, according to attorneys like Hechinger.
Pressure on Cuomo to Act
Meanwhile, marijuana legalization remains wildly popular in New York State, as it does throughout much of the rest of the country. But unlike much of the rest of the country—including everywhere recreational cannabis has been legalized, with one exception—New York lacks a popular referendum process. Only elected officials can bring issues onto the ballot.
Following pressure from pro-legalization challenger Cynthia Nixon, Gov. Andrew Cuomo announced the creation of “working groups” that would look at legalizing recreational cannabis. It is unclear how much pressure Cuomo will feel now, following his easy victory over Nixon in Thursday’s Democratic primary.