The way we treat cannabis is evolving. But reforms and opportunities are not distributed equally
Does it Matter Where in NYC You Get Busted for Marijuana?
Recreational cannabis is still illegal in New York, though both the governor and NYC’s mayor don’t think it should be. So, in a fluid period, what are the cops and the DAs doing about low-level possession?
By Morgan Hines
New York City is in a state of limbo when it comes to the legalization of recreational marijuana. In December of 2018, Mayor Bill de Blasio declared his support for legalization, and in January of this year during his inaugural address, Gov. Andrew Cuomo pledged to legalize. He had hoped to make it happen via the budget process, but that deadline was missed. Some lawmakers are still trying via legislation, but so far, no luck.
Cuomo’s cannabis plan raised a slew of issues, including how to tax it and how to determine if someone is impaired while driving, a subject that came up several times during a marijuana public hearing at City Hall this February. Also, at issue is how to make sure communities that have suffered in the war on drugs can reap some of the benefits of a newly legal cannabis industry, an “equity” issue that has come up in other places considering legalization, including New Jersey and Illinois.
So, we’re kind of in a twilight zone. Cannabis remains illegal at the federal and state level, but in both New York State and New York City, the top leaders have said it should not be. What are the police, and the prosecutors, to do?
The situation is somewhat murky, but it’s clear that cannabis enforcement is changing, and the terms are in abeyance.
On the policing side of the equation, in August 2018, the NYPD announced that it would cut down on arrests for the public smoking of marijuana. The new policy would allow officers to issue summonses as opposed to arrests — at their discretion, according to an NYPD statement that originally appeared as an op-ed in the New York Daily News. The goal was to reduce the number of people added to the criminal justice system, and to reduce the number of arrests.
The NYPD’s reason for doing this, according to the statement, is that the department no longer sees value in arresting people for marijuana offenses when they have no impact directly on public safety.
As the statement reads: “When people smoke marijuana in public, police officers will exercise discretion based on several factors. In most circumstances, the person will be released with a criminal court summons, which does not result in a criminal record.
"People might still get arrested, however, if they are: offenders on parole or probation; known violent offenders; offenders with existing felony or misdemeanor warrants; or offenders without identification, or who refuse to produce identification. They can also be arrested if their behavior represents an immediate threat to public safety, such as operating a motor vehicle while smoking marijuana.”
The new rule, though, was not one that would directly address one issue with marijuana policing in New York City —racial disparities in arrests. According to an investigation by The New York Times in May of last year, black people in New York City were eight times more likely to be arrested than their white, non-Hispanic counterparts on low-level marijuana charges over the prior three years.
Rory Lancman, a New York City Councilman and chair of the Committee on the Justice System, said that when de Blasio and the NYPD changed the policy — to arrest for marijuana when the subject of arrest has had a prior criminal record — he said he feared that the new could further the existing racial disparity in low-level marijuana arrests. “Excluding people from the policy based on their former involvement is going to be increasing racial disparities,” Lancman said, “because you’re now fishing in a pool of a much more racially concentrated population.”
And indeed, according to the data this year, from the NYPD, the first quarter of 2019, 92 percent of the 606 marijuana related arrests in New York City were of black and Hispanic citizens.
Anthony Posada, of the Legal Aid Society, a coalition partner of the Drug Policy Alliance, echoed Lancman’s concern. “The arrest policy changes that the NYPD has made show us that marijuana criminalization continues being a racial justice issue, and this deeply impacts the communities we serve,” said Posada. “As much as those arrests have gone down across the city they are still targeting black and brown New Yorkers, while other people are treated as if it has been legalized for them.”
If you compare the number of arrests from the second quarter of 2018 to the number of arrests in the first quarter of 2019, after the changes to the NYPD arrest policy had been in place for a few months, it is evident that the number of overall arrests had dropped significantly.
Citywide, in the second quarter of 2018 there were 2,652 marijuana-related arrests, with 1,117 in the third quarter, and 520 in the fourth quarter of the year, after the NYPD announced its changes. Similarly, in the first quarter of 2019, there were 606 arrests. So overall marijuana arrests in New York City dropped 88 percent in one year due to policy changes.
On the other hand, in spite of the authority for officers to choose to issue summons instead of arrest for low level marijuana offenses, summons have basically stagnated since the announce of the change in policy while arrests have decreased practically exponentially. In the second quarter of 2018 there were 3,506 summonses citywide, with 3,802 in the third quarter and 3,372 in the fourth quarter. In the first quarter of 2019 there were 3,790, not far off from the previous numbers, even before the policies were altered.
As for arrests that are still being made, it is up to the district attorneys of New York City to choose how to prosecute. And they are not all on the same page.
“As legalization of marijuana approaches a reality in our state, I and my fellow prosecutors have worked to reform our criminal justice system, including reducing the harmful impacts that the criminalization of marijuana has had on individuals,” said Darcel D. Clark, the Bronx district attorney, in a February press release. “At the same time, we must maintain public safety. This requires balancing the arc of justice while ensuring the rule of law.”
But what does that mean for the residents of New York City? Is possession and use of marijuana for recreational purposes more permissible than it used to be? And, perhaps more importantly, within this period of in-between, does it matter which borough you are in if you get busted? Will you be prosecuted for cannabis in Manhattan the way you would be if you were arrested in the Bronx? Or Queens? Or Staten Island?
The situation is fluid, but here’s what we can tell so far, from NYPD data, interviews, and statements from the five New York City district attorneys.
At New York City Hall, during a public hearing about cannabis on Feb 27th, Manhattan district attorney Cyrus Vance re-stated his office’s decision to halt prosecution for marijuana cases, dating from July of 2018. “My office is essentially out of the business of marijuana prosecutions,” he said.
Vance isn’t the only district attorney to put a stop on prosecuting for marijuana use. Others across the boroughs of New York City have done the same. The Bronx and Brooklyn have also slowed or stopped prosecution of cannabis use and possession.
Helen Peterson, the press officer for the Brooklyn district attorney, Eric Gonzalez, said that while there are exceptions to the new rule, such as smoking marijuana while driving, the prosecution of marijuana has nearly halted in Brooklyn. “Prosecutions of people with small amounts of marijuana for personal use and marijuana smoking cases have plunged since DA Gonzalez announced in Spring 2018 that he would no longer prosecute smoking cases, in addition to possession cases, in most instances,” said Peterson.
According to a press release from Gonzalez’s office on Dec. 27, 2018, prosecutions of misdemeanor marijuana possession cases dropped by 98 percent in 2018. “In Brooklyn, we are leading the way in implementing initiatives that strengthen trust in the criminal justice system while keeping communities safe,” Gonzalez said in the press release.
Meanwhile, the Bronx district attorney, Darcel Denise Clark, has instructed assistant district attorneys to decline to prosecute an arrest when marijuana is the only charge until a change in penal law occurs, according to the Office of Bronx District Attorney’s press officer and a statement on the office’s website. Instead, officers will be directed to issue summonses.
But in Staten Island, the district attorney, Michael McMahon, told the Staten Island Advance that he supported his partners in the NYPD and would prosecute the arrests they chose to make. He also said he would not take any steps to get rid of past marijuana convictions, and argued that the easing of marijuana enforcement laws should be made, without a rush, at the state level. His office was unresponsive to multiple calls and emails from NYCityLens.
In Queens, the former district attorney, Richard Brown, who died shortly before he was due to retire earlier this month, made a number of statements against the legalization of marijuana. In a press release put out in December 2018 he put it this way: “Respectfully I don’t believe anyone can say that the legalization of marijuana is a positive step for our society or our children.”
And in Queens, DA Brown continued to prosecute. According to the Queens Eagle and data compiled by the Legal Aid Society, Queens still accounts for more low-level marijuana prosecutions than Brooklyn, Manhattan, and Staten Island combined.
“Queens will prosecute marijuana offenses brought to it,” said Councilman Lancman. “Queens is the marijuana prosecution capital of the city.”
However, with the recent passing of District Attorney Brown, policy for prosecuting may be up in the air until a new DA is selected to lead the borough. The primaries for the election will be held on June 25, 2019 and the election will be held on Nov. 5, 2019. With seven candidates in the running for the position, it’s unclear how the issue of marijuana prosecution will be handled, though some of them sound like they would make a change.
Rory Lancman, the City Councilman, is one of the candidates for the position, and if he becomes the Queens DA, the policy for prosecuting will change, drastically. “I believe that recreational marijuana use should be legal and I don’t believe anybody should be prosecuted for marijuana,” Lancman told NYCityLens.
Lancman isn’t the only candidate for the district attorney job looking to update the Queens policy. Queens Borough President Melinda Katz is another. She said that she believes criminalization of marijuana possession is largely used as an excuse for stop-and-frisk practices, which she said do not improve community safety. "I will not prosecute marijuana possession,” she said. “And while I support the legalization of recreational use of marijuana and the expungement of past marijuana arrests, the potential for marijuana legalization brings a serious need for strict enforcement of laws against driving under the influence and new education campaigns to prevent drivers from putting themselves and others in danger."
Others who are gunning for the open district attorney’s seat include Tiffany Cabán, whose campaign site states that she too would like to decriminalize recreational marijuana. Betty Lugo is also in the running. “I will issue warrant forgiveness and dismiss first low level marijuana possession charges where no violence involved and no prior records. Second chances and diversion programs will be seriously considered,” Lugo said.
While citywide prosecution rates for cannabis have dropped, pro-cannabis advocacy groups are still pushing for the decriminalization of marijuana. Mason Tvert, a spokesperson for the Marijuana Policy Project, said that it is great to see that law enforcement officers are exercising discretion and spending less time dealing with low-level marijuana offenses. However, he believes there is still a need for broader reform at the state level.
“Possession of a small amount of cannabis by adults should not be a crime, period,” said Tvert. “In the meantime, we hope city police will continue to build upon the improvements they have made.”
Without full legalization, Posada said, the boroughs are not using equal systems of justice, which can make things unclear. “The lack of uniformity creates a sense of fragmented justice, not equal justice,” said Posada.
Jennifer Doherty contributed reporting to this piece. Data source: NYPD