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Journal of Law and Policy

Abstract

For decades, New York’s selective enforcement of cannabis prohibition has disproportionately targeted low-income Black and brown communities, resulting in mass incarceration, decimated economic opportunity, and entrenched generational harm. In 2021, New York enacted the Marihuana Regulation and Taxation Act (“MRTA”) with an explicit reparative mandate: to redress these harms by lowering barriers to enter the new recreational cannabis market for those severely impacted by prohibition. Central to this effort is the Cannabis Social Equity Investment Fund, a $200 million program designed to provide justice-impacted entrepreneurs with turnkey retail locations, low-interest loans, and business support. In practice, however, the Fund has reproduced the very power imbalances it was meant to dismantle. Borrowers have been saddled with predatory loan terms, stripped of control over fundamental business decisions and excluded from meaningful participation in the decisions governing their own enterprises. This Note argues that the Fund’s failures stem not from poor intentions, but from a structural failure to shift power. To ground this argument, this Note traces the arc of Roland Conner’s experience–from his cannabis conviction in the 1990s, to a ribbon cutting ceremony as New York’s first dispensary owner with a cannabis conviction, to defaulting on his $1.9 million loan–as a window into the Fund’s broader structural failures. Applying the power lens, which asks whether reform policies transfer governing authority to historically disempowered groups, this Note examines the Fund through two theoretical frameworks: reparative theory, which demands that equity policies account for and repair historical harms, and anti-subordination theory, which holds that the State must not perpetuate the inferior status of marginalized groups. Viewed through this lens, the Fund’s governance structure, financing arrangements, and loan terms reveal a program that yields justice-impacted borrowers’ participation without power. Drawing on a three-dimensional framework analyzing the configuration of representation, the degree of authority afforded to borrowers, and their proximity to upstream moments of decision making, this Note contends that New York must move beyond facilitating commercial engagement and instead center the agency and control of justice-impacted individuals in structuring any genuinely reparative cannabis equity policy.

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