NY: Two District Attorneys May Stop Prosecuting Most Marijuana Offenses

Photo Credit: Chang W. Lee

The district attorneys in Manhattan and Brooklyn are weighing plans to stop prosecuting the vast majority of people arrested on marijuana charges, potentially curbing the consequences of a law that in New York City is enforced most heavily against black and Hispanic people.

The Brooklyn district attorney’s office, which in 2014 decided to stop prosecuting many low-level marijuana cases, is considering expanding its policy so that more people currently subject to arrest on marijuana charges, including those who smoke outside without creating a public nuisance, would not be prosecuted, one official familiar with the discussions said.

The Manhattan district attorney’s office, which last year decided to lighten penalties for some marijuana offenders, would join its counterparts in Brooklyn and decline to prosecute the vast majority of low-level marijuana cases under the plan, with some exceptions for people with serious criminal histories, a second official said.

Those changes, if put into practice, would amount to a forceful disavowal by two high-profile prosecutors’ offices of criminal penalties for an offense that has been taken off the books in some states and that in New York City is enforced overwhelmingly against black and Hispanic people. The discussions have been prompted in part by concerns among prosecutors about the continuing racial gap in marijuana arrests.

Through their press aides, the Brooklyn district attorney, Eric Gonzalez, and the Manhattan district attorney, Cyrus R. Vance Jr., declined to speak publicly about policy discussions still underway.

The Brooklyn district attorney’s office has been experimenting for several weeks with declining to prosecute some cases of people who were arrested for smoking in public, the first official said. And since the fall, prosecutors in Manhattan have been studying jurisdictions that have legalized marijuana, the second official said.

Of the more than 5,000 people arrested on low-level marijuana charges in Manhattan last year, only 100 to 200 would have been prosecuted under the plan being considered, the second official said. Prosecutors there have been working on the plan in coordination with the Police Department and City Hall, the official said.

It is unclear whether prosecutors in the other boroughs are considering any similar measures, or how the Police Department would respond.

But the New York City police commissioner, James P. O’Neill, hinted on Monday that he was already re-evaluating some marijuana arrests. He said at a City Council hearing that the way the department was enforcing marijuana laws was sometimes at odds with the city’s objectives, noting that more than a third of the people arrested on low-level marijuana charges last year had no previous criminal record.

And Mayor Bill de Blasio pledged to consider policy changes that would cut down on marijuana arrests and to address an enforcement strategy that has resulted in black people being arrested on marijuana charges in New York City at eight times the rate of white people over the last three years.

“If the disparity continues, it’s not acceptable,” Mr. de Blasio said in an interview on Monday with Spectrum News NY1. “We’ve got to look at the whole realm of policy options.”

They were responding to the publication on Sunday of an article in The New York Times documenting the enormous racial gap in marijuana enforcement.

A senior police official had said in February that the reason for the racial gap was that more residents in predominantly black and Hispanic neighborhoods were calling to complain about marijuana. But the Times article showed that among neighborhoods where people called about marijuana at the same rate, the police almost always made arrests at a higher rate in the area with more black residents.

The comments by the mayor and the police commissioner fell short of showing any evidence the city had until now tried to address a racial disparity in marijuana enforcement that has persisted throughout Mr. de Blasio’s administration and for decades before. But they were the clearest signal yet from the city, as other states open marijuana dispensaries and Gov. Andrew M. Cuomo moves closer to endorsing legalization, that they were considering changes.

The police commissioner, James P. O’Neill, told members of the City Council that 36 percent of the people arrested on marijuana charges last year had no criminal history.

“That’s not what I’m looking for,” Mr. O’Neill said, adding, “I acknowledge this does not help us reduce crime.”

Under the plan being considered by Mr. Gonzalez in Brooklyn, the office would also stop prosecuting some people who are currently being prosecuted because they have a criminal record from many years earlier, one of the officials said. The plan still offers exceptions: People with a recent criminal record or who smoke in a way that creates a public nuisance would be prosecuted.

Under the plan being considered in Manhattan, people with a serious criminal record would still be prosecuted, the official said. But the plan would end prosecutions of people who under current policies in Manhattan generally have their cases dismissed after three months or six months.

In Mr. O’Neill’s testimony on Monday, he said the police still needed to answer complaints from residents and business owners about people smoking marijuana outside. And he dismissed the notion that the arrests were “racially motivated.”

But after the department and the mayor had for weeks defended the marijuana arrests, Mr. O’Neill struck a different tone. He said he did not know why the racial gap persisted, and said the department was studying whether it had to do with sending more officers to patrol in some neighborhoods than others.

As part of the department’s weekly CompStat meetings about crime conditions, Mr. O’Neill said senior police officials sometimes asked commanders to explain low-level marijuana arrests in their precinct, particularly when officers were arresting people who had no previous criminal record.

Members of the City Council questioned how the department had failed to rein in police precincts that arrested hundreds of people annually on marijuana charges despite not getting an unusually high number of complaints.

Rory Lancman, Democrat of Queens, pointed to the 105th Precinct, which covers Queens Village. The Times showed the marijuana arrest rate there is more than 10 times as high as in the precinct that serves Forest Hills, Queens, despite both getting marijuana complaints at the same rate. The 105th Precinct is just over half black, while the one covering Forest Hills has few black residents.

“If that’s not setting off alarm bells, then someone’s not paying attention,” Mr. Lancman said. He added in an email, “They’re chasing a rationale for the very simple but uncomfortable reality that our criminal justice system unfairly impacts people of color, and they haven’t done anything to fix it.”

Mayor de Blasio said in late 2014 that the police would largely give summonses instead of making arrests for carrying personal marijuana, and reserve arrests mainly for smoking in public. Since then, the police have arrested 17,500 people for marijuana possession on average a year, down from about 26,000 people in 2014, and issued thousands of additional summonses. About 87 percent of those arrested in recent years have been black or Hispanic, a proportion that has remained roughly the same for decades.