New York’s Pot Legalization Is Still Kinda Square

Just days after the first state-regulated marijuana shops opened in Colorado—to the delight of everyone who loves a good pot pun in their morning newspaper—reports began to circulate that New York’s Democratic governor, Andrew Cuomo, was poised to bring his state into line with the 20 others that have legalized marijuana for medical use. This week, according to the New York Times, Cuomo will announce an executive action allowing 20 New York hospitals to prescribe marijuana to patients with glaucoma, cancer, and a handful of other chronic diseases, to be determined by the Department of Health. The governor is skirting the state legislature, where four medical marijuana bills, including one that passed the House last spring, perished in the Republican-controlled Senate. The legislative proposals would have allowed patients with a dozen illnesses, including epilepsy, post-traumatic stress, diabetes, and arthritis, to possess two and a half ounces of cannabis, and set up a system for licensed marijuana distributors.

If Colorado is plunging off the high dive into a pool that might be empty, New York is strapping on a pair of water wings for a paddle in the shallow end. As I wrote in November, the maiden voyage of the first pot retail stores could be marred by a wide array of blunders—some minor, others potentially fatal. New York, on the other hand, isn’t tempting fate. Its proposed plan is so limited, it’s hard to imagine it could reach more than a handful of patients.

Cuomo’s decision to use a long-dormant executive power that allows the state health department to distribute medical marijuana to hospitals smacks more of a politician who realized he’s late to the party than someone who’s had a true change of heart. The governor opposed last spring’s attempt to legalize medical marijuana, saying it would be too difficult to keep the drug out of the hands of illegal users. But that was before polling showed an extraordinary shift in public opinion—according to polls conducted by Siena College, New Yorkers’ support for legal medical marijuana leapt twenty-five points between May 2012 and May 2013. Some of this shift is doubtless due to the wording of questions (in 2013, the pollsters added a caveat about “seriously and terminally ill patients” that may have tipped some respondents), but it mirrors a larger trend in the national population. In 2013, Gallup and Pew found, for the first time, majority support for legalizing marijuana not just for medical use, but for any adult over the age of 21. There’s one obvious reason why Cuomo would be eager to seem supportive of medical marijuana, even if he’s privately skeptical: The political winds are shifting quickly on the issue, and he’s up for reelection next November.

Symbolically, the addition of the third-largest state in the country to the roster of medical marijuana supporters is a big deal. And it’s possible that Cuomo’s action will lead to broader regulation of medical marijuana through the legislature. But with this limited approach, the Empire State isn’t following states like Colorado and California, where patients can get pot for everyday complaints like insomnia or back pain. Instead, it’s relying on a blueprint set by places like the District of Columbia. Medical marijuana may be legal in the nation’s capital, but that doesn’t mean it’s easy to get a prescription. In the days after D.C.’s three medical marijuana dispensaries opened last summer, the number of patients registered with the city totaled in the single digits, largely because so few ailments qualified for treatment with medical pot. Five months later, business is still perilously slow; the dispensary owners told the Los Angeles Times in December that they’re all losing money.

New York’s system could be even more restrictive, despite the evident need for relaxed marijuana laws. A study conducted by the New York City Comptroller’s Office last August estimated that more than 100,000 of the city’s residents could benefit from medical marijuana, if it were legal. The New York ACLU reports that the state is among the worst in the country in terms of racial disparities in marijuana arrests; in Brooklyn and Manhattan, black New Yorkers are nine times as likely as white New Yorkers to be arrested for possessing marijuana.

The executive action is so limited in scope, it’s hard to imagine that more than a small fraction of marijuana patients would be able to access the drug (and would do nothing to curb the racial disparities). Instead of licensing and regulating dispensaries to sell pot to patients, only hospitals would be allowed to give out the drug. Only cancer and glaucoma have been explicitly mentioned as qualifying disorders, excluding a panoply of illnesses like AIDS, multiple sclerosis, Crohn’s disease, and rheumatoid arthritis, all of which should—according to marijuana reform advocates—be added to the list.

Finally, it’s unclear where the state is planning to get its marijuana in the first place. Pot growers in D.C. are licensed to provide marijuana to the city’s dispensaries, but the New York proposals—at least so far—have made no mention of allowing legal pot cultivation. The federal government does grow small amounts of marijuana for research purposes (strangely enough, on a farm in the middle of the University of Mississippi’s campus), but it’s notoriously difficult to jump through the administrative hoops necessary to obtain it.

The result, unless the executive action manages to break the state’s legislative logjam, would mostly reinforce the status quo—while making Cuomo seem far more progressive on marijuana policy than he actually is. The real victims are people who could benefit from medical marijuana, who have, over the past few years, seen a proliferation of increasingly restrictive medical pot laws in states like New Jersey and Illinois, which prohibit home growing and limit the diseases that can qualify for a pot prescription. It’s easy to see why lawmakers are leery about policies that would turn their states into the next California, where overly lax medical marijuana laws have resulted in a quasi-legal underground market. But Cuomo’s executive action will have to be followed by legislation that regulates the growth and sale of medical marijuana, if he wants the measure to be more than symbolic.

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