‘Justice involved’ demands judicial discretion

Editorial: March 17, 2022

Mjbizdaily.com – yes, there is a trade journal for all things marijuana – reports Otsego County as one of three north of New York City with more than 75 percent of its localities opting in to allowing retail pot dispensaries within their borders. And whether those jurisdictions opted in actively through an affirmative vote or passively – as Cooperstown’s Board of Trustees did when they completely took a walk on voting up or down on the touchy issue – they’re bound by the regulations New York’s Office of Cannabis Management issued last week.

We report this week on the details of those regulations, including the requirement that for the as-yet initial batch of licenses, at least one person in the application must be “justice involved.” In this case, that’s the term for someone convicted of a pot-related offense prior to March 31, 2021, when the state Legislature and then-Governor Cuomo legalized recreational pot with the “Marijuana Regulation and Taxation Act.” A licensee also is eligible if he or she had a family member convicted of a pot-related offense prior to that same date. The language of that law awards one-half of all adult-use licenses to “social and economic equity applicants.”

We support its good intention – historically, New York’s drug laws had a disproportionate, punishing impact on minority communities, one so steep that even the Republican state legislators who pushed them into law back in the early 1970s returned to Albany two decades later as private citizens to lobby hard, and successfully, to undo them.

We’d like to think that the “justice involved” layaside for retail licenses, then, would go to those who felt that disproportionate punishment the most – say, perhaps, the now-adult who got sent up for too many years because, as a knuckleheaded teenager, he sold a couple of dime bags to an undercover and did hard time for a crime that might have meant probation for a kid who didn’t live in a minority neighborhood.

But you know what they say about good intention. “Justice involved” could include, too, the strong-armed thugs who used strong arms and armaments to protect their pot-selling turf back in the day. Drug dealers were and are smart business people clever enough to work the angles, operate in the shadows, and abide no resistance to their demands. The thuggiest who were caught and convicted fall into the category of “justice involved.” Do they get a pass for one of these new licenses?

The state’s Office of Cannabis Management has crafted for itself an exceptionally tricky row to hoe. To make this noble experiment in economic equality a success, they’ll need to examine every license applicant to determine the extent to which he or she was “justice involved” on account of a marijuana-related offense. They will have no choice but to use judicious discretion – the same kind of quasi-subjective standard of measure that the state Legislature threw out with New York’s bail and discovery reform laws in 2020.

The state’s legislative leaders have, to date, said they’d consider no changes to the new standard of judicial discretion. And yet here we are. This new state agency should expect a torrent of license applications that include among the ownership group someone with pot-related justice involvement. Someone in authority at the Office of Cannabis Management will be required to use his or her discretion about the extent of that involvement. With that discretion will come disappointment.

How this affects Otsego County remains to be seen, of course, but all the localities that lined up to opt in, affirmatively or otherwise, should watch carefully to make sure the good intent of the regulations indeed serves those whose lives were most unduly upended by the unfair application of justice.