The Cannabis Control Board votes on the first batch of...

The Cannabis Control Board votes on the first batch of recreational marijuana dispensary licenses in Harlem. Credit: Marcus Santos

No one needed to announce that marijuana sales are beginning to roll out in New York State; a simple whiff of the air will tell you they’re already here. 

The smell of weed is everywhere, and with it early evidence that New York will be unable to restrain the growing underground pot market, even after the 175 Albany-authorized dispensaries are up and running around the state.

But lawbreakers need not worry — not if New York remains true to current form. Having been caught for illegal marijuana sales or possession, after all, is an advantage in applying for a state retail license. 

New York’s Office of Cannabis Management (OCM) is giving first dibs on valuable dispensary licenses to people who have been arrested previously for marijuana offenses, their family members, or anyone who lived in “communities disproportionally impacted” by former drug laws.

The law “establishes a robust social and economic equity program to actively encourage members from communities disproportionally impacted by the policies of prohibition to participate in the new industry,” the OCM explains, rather long-windedly.

Translation: When you committed that crime, you hit the jackpot. Welcome to the marijuana millionaires club. 

Social justice advocates argue that it’s appropriate to issue dispensary licenses as a form of reparation because African Americans, in particular, were imprisoned at a rate greater than white Americans committing the same crime in the past. They were, and that was wrong. But is rewarding past illegal behavior a good public policy decision? Or is it a new form of discrimination against individuals, of all races, who actually obeyed the old laws — that, and a broadcast message to youngsters that crime does, indeed, pay sometimes.

It’s almost certainly one of the reasons that marijuana and its many derivatives are so ubiquitous in New York today. Delis, smoke shops, even Rastafarian-themed RV trucks, are openly selling pot products here because there’s almost no downside, and considerable economic upside, to doing so. Some vendors are now adding to their product lineups with psilocybin and little-studied synthetic drugs like spice and K2.

State and local governments are beginning to press law enforcement to crack down on illegal operations with relatively small fines. But consider the mixed message: We're shutting down cannabis sales here to benefit the cannabis sales of people who committed the same offense years ago.

Say what? 

The smell of marijuana, in itself, is hardly the end of the world. A lot of people like the stuff, and it sure beats car exhaust. But the smell of lawlessness is something New Yorkers can’t afford. When there’s a sense that some laws are optional, the whole social structure can unwind. Think 1970s graffiti or 2022 flash mob robberies. When penalties are minimalized — or outright erased — illegal behavior flourishes.

Many of us opposed marijuana legalization in New York not because we have a problem with pot smokers — yes, some of my best friends are pot smokers — but because of the can of worms legalization is likely to open. As Mark Twain observed, it’s easier to stay out of something than to get out of it.

Yet a majority of New Yorkers wanted pot to be legal, and legal it now is. But how does a state regulate its new marijuana laws when the industry it’s creating is premised on the notion that marijuana laws, themselves, are inherently discriminatory?

The answer is that it can’t.

Opinions expressed by William F. B. O’Reilly, a consultant to Republicans, are his own.