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Understanding The Difference Between Decriminalization and Legalization


When it comes to individuals facing drug charges here in New York, including for marijuana, there is still significant confusion over the difference between legalization and decriminalization, and the distinction is key; not only when it comes to arrests and criminal charges, but in terms of public safety as well.

Although marijuana has been decriminalized in New York, it has not been legalized, meaning that there are still charges, arrests, incarceration, and fines for those caught with it. In New York, possessing, selling, cultivating, etc. marijuana is still a crime, and can result in a prison term of up to 15 to 25 years. Police make hundreds of thousands of marijuana-related arrests every year, where racial profiling is heavily involved, and most of those arrested are black Americans, even though whites use marijuana at the same rate. These arrests then follow people for the rest of their lives—in their education, job applications, housing applications, etc.

Why Low-Level Drug Crimes Constitute Most Arrests in States That Have Not Yet Legalized Marijuana

Police departments and officers everywhere, including here in New York, are evaluated and officers promoted based on how many arrests they make, not the quality of the arrests. As a result, instead of going after serious, complex crimes, which takes significant time and effort, and results in fewer arrests each year, they are more likely to go after the quicker, easier arrests—i.e. the low-level drug crimes, such as marijuana-related arrests. This also leads to a number of illegal search and seizure activities—i.e. police claiming that they smelled marijuana in a car or coming from a house—something that is near-impossible to challenge a police officer on, but which provides the perfect justification for a search.

How It Affects Illegal Searches & Seizures and Civil Asset Forfeiture

In states like New York, where marijuana has simply been decriminalized, but not legalized, all of this still occurs, including police claiming to smell marijuana, which then provides probable cause to justify a search. Marijuana-related searches also provide a significant percentage of assets, funds, and property seized as part of civil asset forfeiture programs, where police seize anything and everything of value associated with a crime and use the proceeds to fund their own departments; without first having to secure a conviction, or even bring charges.

The Public Safety Argument for Legalization Over Decriminalization

The criminality and violence comes from a product being illegal, not from the product itself. When a state legalizes marijuana, in general, there is simply more regulation: Supply chains, grow facilities, dispensaries, health and safety inspections, taxes, ensuring that minors cannot purchase it, etc. Marijuana is treated like tobacco or alcohol, where, because it is not illegal, there are no huge profit margins that can then fund illegal activities, such as human trafficking. Where there is legalization, marijuana arrests have not only plummeted, but youth marijuana rates have failed to increase, and associated tax revenue has been invested in schools and other areas. With decriminalization, individuals still have to purchase marijuana from illegal sources, where no one is necessarily checking ID, and minors still have access as a result.

If You Are Facing Marijuana and/or Drug Charges, Contact New York Defense Attorney Mark I. Cohen

It is important to remember that a conviction for a marijuana charge here in New York can still have long lasting effects on your rights. If you are facing charges, contact experienced NYC narcotics crime attorney Mark I. Cohen, Esq. to find out how we can help.




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