Skip to Content

New York Partially Decriminalizes Marijuana, Allows Automatic Expungements for Certain Offenses

Discriminatory Impact Cited

FlowerMarijuana is legal for recreational purposes in 11 US states, and it is legal for medical use in 33 states including New York. The criminalization of marijuana in the state of New York, however, has a long history. Marijuana was legal in New York until 1914, at which point it became a prescription drug. Although marijuana was fully criminalized in 1927, the plant grew wild throughout New York City until the cleanup was initiated in 1951. 

In August of this year, however, the first major liberalization of legal restrictions on recreational marijuana use since 1927 went into effect. The new law only decriminalizes relatively minor marijuana offenses, however, while retaining criminal penalties for the more serious offenses. New York is also launching an expungement project to clean up the criminal records of hundreds of thousands of people convicted of minor marijuana offenses.


The decriminalization of marijuana is supported by many people that do not necessarily wish to partake in the use of marijuana themselves. There are a variety of reasons why:

Discriminatory Impact

One of the primary justifications for decriminalization is the racial disparity in the arrest rate for marijuana offenses, even after taking into account differences in the prevalence of marijuana use among various demographic groups. “This legislation is marking a momentous first step in addressing the racial disparities caused by the war on drugs,” said Senate Majority Leader Andrea Stewart-Cousins, D-Yonkers.

In 2018, New York City Mayor Bill de Blasio also told the NYPD to stop arresting people for smoking marijuana in public because of the racial disparities that currently prevail. Mayor de Blasio’s initiative would not affect the law itself, only its enforcement. This is in much the same way as the federal government refuses to enforce federal marijuana laws to the extent that the states have legalized its use.

Progress Toward Full Legalization

Another major generator of support for decriminalization is the “consolation prize” it offered advocates of full legalization. From this perspective, decriminalization is just a step on the road to full legalization of the recreational use of marijuana. If that were to happen, New York wouldn’t be the first state to embrace decriminalization prior to legalization.  

Decriminalization and Its Limitations

The new decriminalization law, which took effect in August, turns certain former criminal offenses for possession of marijuana into a “violation” subject to a fine rather than a criminal offense. This move puts minor marijuana offenses into the same category as a traffic ticket, and a violation will not result in a criminal record for the offender.

More specifically, Article 221 of the New York State Penal Law reduces the penalty for first-offense possession of fewer than 25 grams to a fine of no more than $100 – with the fine rising to as much as $250, depending on how many times the offender committed the violation over the past three years. A third offense within three years, however, can result in a 15-day jail term. Even though jail is possible, such a violation is still not considered a criminal offense.

Remaining Criminal Penalties

The idea that “marijuana has been decriminalized in New York” is an overbroad generalization. Possession of 25 grams or more can result in a jail sentence of up to three months, and 25 grams is less than a single ounce. Penalties rise as the amount in possession rises. Any sale of marijuana is still a criminal offense, and you can be charged with a felony for selling more than 25 grams. The maximum penalty for “trafficking” in marijuana is still 25 years in prison. 

Smoking Marijuana in Public

Smoking marijuana in public, or within public view (in your backyard, for example), is still a criminal offense, even if you possess an amount so small that it would have been considered only a violation if you had been carrying it but not smoking it. Moreover, even if Mayor de Blasio’s policy of non-enforcement of public marijuana smoking laws takes effect statewide, smoking marijuana in public will still probably be prohibited everywhere that smoking tobacco is prohibited.

Drugged Driving

Drugged driving, a form of DUI, is still illegal in New York, and even a first offense is considered a misdemeanor crime. This state of affairs is hardly surprising, since you can be arrested for DUI even if a legal but intoxicating substance is found in your bloodstream (a prescription drug, for example). New York’s drugged driving laws are unlikely to change even if marijuana is legalized for recreational use, since there is very little public or legislative support for such a reform. 

Expungement of Previous Convictions

Perhaps even more significant than the decriminalization of marijuana is New York’s decision to expunge certain convictions that occurred under the old law. Most previous convictions for possession of up to 25 grams of marijuana will be automatically expunged with no court proceeding necessary. Delay is inevitable, however. This is undesirable because every single day people are losing employment, schooling, and housing opportunities over past convictions.

Over 75,000 convictions for simple possession of marijuana and over 125,000 convictions for fifth-degree criminal possession of marijuana (more than 0.88 ounces), dating back to the 1970s, are eligible for expungement. The New York Drug Policy Alliance has complained that the state government underestimated the number of convictions eligible for expungement and that the real number is closer to 900,000.

In an automatic expungement, your conviction is sealed but the records themselves are not destroyed. If you wish to have the records destroyed, you will have to petition a judge for a court order. Although expungement is now New York state policy, the detailed mechanics of exactly how to go about doing it quickly and efficiently have still not been worked out. 

The California Model

Automatically expunging over 200,000 criminal convictions will take time and money due to the sheer volume of work to be done. This isn’t the first time it’s been done in a populous state, however. Last year, California passed a law designed to automatically expunge about 200,000 marijuana conviction – about the same number that New York seeks to expunge. California just approved a budget of about $13 million for these expungements.

Medical Marijuana

Marijuana became legal for limited medical uses in July 2014. Medical marijuana did not become available immediately, however, because the law directed the New York Department of Health to establish a medical marijuana program that allows licensed marijuana growers to operate dispensaries. All legal forms of medical marijuana are non-smokable at present, presumably due at least in part to second-hand smoking concerns.

The Effort to Legalize Marijuana in New York: Why It Failed and What the Future Holds

Advocates of the legalization of the recreational use of marijuana make several arguments for legalization, including:

  • Legal marijuana can be taxed, putting more money into state coffers, which can redirect it to schools, hospitals, etc.
  • Legalizing marijuana will unburden the police and unclog the judicial system so that resources that are now taken up prosecuting people for marijuana offenses can be redirected to prosecuting more serious offenses (to an extent, this argument also applies to decriminalization); and
  • Criminalizing marijuana use puts the marijuana business into the hands of drug gangs in much the same way as Prohibition in the 1920s put the sale of alcohol into the hands of the mafia.

In 2018, Governor Cuomo urged the state legislature to fund research on the effects of legalizing the recreational use of marijuana. The New York Department of Health responded by conducting a study on the various legal, economic, and social consequences of legalization. The Department of Health ultimately recommended legalization, and Governor Cuomo himself came out in favor of legalization. 

The Marijuana Regulation and Taxation Act (MRTA) bill was then introduced to legalize the recreational use of marijuana. The bill ultimately failed, however, in favor of mere decriminalization. One of the main reasons that the bill failed, however, is because of the lack of unity among pro-legalization legislators – among whom opinions varied :

  •  Some wanted a legal minimum age limit of 25.
  •  Some wanted more sales revenue to be allocated to the police and to schools.
  • Some wanted towns and cities to have to “opt-in” before the recreational use of marijuana became legal in their jurisdictions. This would allow the more conservative municipalities to keep recreational marijuana illegal locally. 

Although it is difficult to state with certainty whether the recreational use of marijuana will ever be legalized in New York, it seems like a good bet. 11 states have already done so, “blue” states are more likely to do so than “red” states, and New York is one of the most reliably “blue” states in the Union. Only time will tell, however, and for the moment, all possession and use of marijuana remain illegal although not necessarily criminal.

Start Fighting Back Today

If you have been arrested for a marijuana offense, either recently or years ago, contact E. Stewart Jones Hacker Murphy immediately – either to fight the prosecution or to arrange for the destruction of the records of an old conviction. Contact us online or call our office to set up a free initial consultation. We also maintain offices in AlbanyColonieSchenectadySaratoga, and Troy.

Share To: