NY: Mayor And Some Prosecutors Move To Curb Marijuana Arrests

Photo Credit: Holly Pickett

After years of halting steps, top prosecutors and elected officials in New York City on Tuesday made a sudden dash toward ending many of the marijuana arrests that for decades have entangled mostly black and Hispanic people.

The plans, still unwritten and under negotiation, will rise or fall on the type of conduct involving marijuana that officials decide should still warrant arrest and prosecution. The changes appear likely to create a patchwork of prosecution policies across the city’s five boroughs, and are unlikely to restrict police officers from stopping and searching people on suspicion of possessing a drug that is now legal in a number of states.

But with the city now conceding a wide racial gap in arrests and with the Police Department’s rationale for that gap collapsing under scrutiny, the plans represent a striking shift that could lead in some parts of the city to people generally facing no criminal penalties for smoking marijuana.

Mayor Bill de Blasio, who suggested only weeks ago that city policy would hold fast until New York State legalized the drug, directed the Police Department on Tuesday to have a plan within 30 days to “end unnecessary arrests.”

The Manhattan district attorney, Cyrus R. Vance Jr., said he would stop prosecuting marijuana possession and smoking arrests this summer, and he gave the Police Department until then to make a case for still charging limited categories of people.

The Brooklyn district attorney, Eric Gonzalez, said that over the last three months his office had doubled the number of marijuana smoking cases it had stopped prosecuting and that it now planned to start throwing out more cases after the Police Department weighed in.

And the police commissioner, James P. O’Neill, said he would convene a working group to review marijuana enforcement tactics and conceded that at least some arrests “have no impact on public safety.”

A New York Times investigation published on Sunday showed that black people were arrested on low-level marijuana charges at eight times the rate of white people over the last three years, and that among neighborhoods where people called to complain about marijuana at the same rate, the police almost always made arrests at a significantly higher rate in the area with more black residents.

Defense lawyers and drug reform advocates, stung by years of piecemeal policy changes that have only reined in prosecution and arrest tactics bit by bit, said the plans did not yet offer any assurances that the decades-long era of mass enforcement of marijuana laws was over.

Kassandra Frederique, the New York State director at the Drug Policy Alliance, which has long pushed for legalization and publicized the racial gap in arrests, faulted Mr. de Blasio for not acting sooner. In January, the mayor said the roughly 17,500 annual marijuana arrests represented “a normal level in the sense of what we were trying to achieve.”

“It is a waste of our public safety resources to arrest people for marijuana,” Ms. Frederique said. She said she remained concerned that the police ticketed and arrested so many people for low-level crimes in black and Hispanic neighborhoods.

The Brooklyn district attorney’s office in 2014 defied the Police Department and decided to stop prosecuting some low-level marijuana cases, but carved out exceptions for people accused of smoking in public or who had criminal records. Since then, prosecutors in the borough have declined to press charges in between 15 percent and 20 percent of cases.

At the end of 2014, Mr. de Blasio said the police would largely give summonses instead of making arrests for carrying personal marijuana, and reserve arrests mainly for smoking in public.

Arrests fell from about 26,000 people in 2014 to 17,500 people on average in the years since then, about 87 percent of them black or Hispanic.

But still, thousands of people continued to miss work and school for court and face consequences in their searches for housing or jobs. Research has shown there is no good evidence that marijuana arrests are associated with reductions in serious crime in New York City.

In a report released Tuesday, Mr. Vance said he supported legalizing marijuana and had found no rationale for the New York City’s enforcement tactics: “These arrests waste an enormous amount of criminal justice resources for no punitive, rehabilitative, deterrent or other public safety benefit. And they do so in a racially disparate way that stigmatizes and disadvantages the arrestees,” the report said.

Mr. Gonzalez said he supported civil summonses instead of arrests for marijuana, while Mr. Vance supports civil or criminal summonses until marijuana is legalized by the state. The Bronx district attorney, Darcel D. Clark, urged the police to give criminal summonses in lieu of arrests, but stopped short of saying her office would decline to prosecute any cases. The office of the Queens district attorney, Richard A. Brown, said in a statement it was awaiting the results of the Police Department’s review, and the office of the Staten Island district attorney, Michael E. McMahon, did not respond to requests for comment.

The district attorneys in Manhattan and Brooklyn left the door open to prosecuting people on marijuana charges if they had previous criminal records. Scott Hechinger, a senior staff lawyer and director of policy at Brooklyn Defender Services, said doing so would undermine a policy intended to reduce the impact of marijuana laws on black and Hispanic people: “The people that are going to have records are folks that live in neighborhoods that are overpoliced and targeted for enforcement,” he said.

Whereas Manhattan prosecutors would generally decline to bring charges in cases of public smoking, Brooklyn officials signaled they would keep prosecuting cases in which smoking created a public nuisance. That decision concerned defense lawyers, who are worried that if police officers make that determination, too many public smoking cases would continue to be prosecuted in the borough.

Even in states that have legalized marijuana, public smoking is not allowed, often leading to a civil penalty.

The moves on Tuesday highlighted the discretion afforded the city to enforce the state’s marijuana law as police officials see fit. But defense lawyers and drug reform advocates said that so long as using marijuana was still a crime, police officers would continue to seize on the smell of marijuana to stop and search people and check for open warrants.

“The odor of marijuana has become the new broken taillight,” Mr. Hechinger said. “It creates a pretext that’s quite difficult to disprove for officers to approach and search our clients in neighborhoods with a high police presence.”