New York: NYPD Poised To Stop Low-Level Marijuana Possession Arrests

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Individuals Would Instead be Ticketed and Ordered to Court

Advocates Cautiously Optimistic, But Key Questions and Concerns Remain

An article on the front page of Monday's New York Times outlines a plan by the de Blasio Administration to end low-level marijuana possession arrests in New York City. According to the article, those found with small amounts of marijuana would be issued a court summons and immediately released.

This would be a shift from the current arrest practice, wherein police charge people with a misdemeanor – the person is then handcuffed, taken to the precinct and held for hours, fingerprinted and photographed, and eventually released with a court date and a virtually permanent arrest record. Ending arrests for marijuana possession is a constructive step towards reform, yet many questions and concerns about the new proposal remain.

The new proposal comes on the heels of a recently released report by the Drug Policy Alliance and the Marijuana Arrest Research Project, which analyzed marijuana arrest and income data. It shows that low-income and middle class communities of color face dramatically higher rates arrests for marijuana possession than do white communities of every class bracket.

Most of those arrested are young men of color, even though young white men use marijuana at higher rates. And last month, a federal circuit ruling opened the pathway to commence long-awaited reforms to NYPD’s stop and frisk practices.

New York State decriminalized personal possession of small amounts of marijuana in 1977, finding that arresting people for small amounts of marijuana “needlessly scars thousands of lives while detracting from the prosecution of serious crimes.” Yet over the last 20 years, marijuana possession has become a top law enforcement priority, with nearly 600,000 people having been arrested under this provision in New York City alone, often as the result of an illegal search or as the result of a stop-and-frisk encounter when police illegally search a person or demand an individual “empty their pockets,” thus exposing marijuana to public view.

The proposal underscores the need for statewide legislation that will fix problems with New York’s marijuana possession law and address the legacy of injustice associated with these broken policies -- like the Fairness and Equity Act (Camara (A.10175)/Squadron (S.7927)) introduced earlier this year.

Advocates are cautiously optimistic about the proposal yet have concerns, as many questions remain unanswered:

• Standards: What will the process be for determining who is arrested and who is given a summons?
• Equity: The vast majority of those who are arrested for marijuana possession are young men of color, even though young white men use marijuana at higher rates. What will NYPD do to reduce racial disproportionality in drug law enforcement, whether they are making an arrest or issuing a summons?
• Data: Compared with publicly available data on marijuana arrests, which is reported through a centralized statewide system, access to summons data is notoriously limited and there is no centralized, statewide reporting system. New York City does not collect or report important demographic data in summonses – making summonses data a “black box.” Thus, the public will not know whether or not racial disparities persist in summonses as they have in arrests. What will the Administration do to ensure that there is effective collection and public reporting of summons data that includes race, age, gender, location of summons?
• Constitutional violations: The discovery of small amounts of marijuana, the possession of which is not a criminal offense under state law if not in public view, is enabled only by illegal searches that the police widely use in violation of longstanding Supreme Court case law; such searches were again exposed by the recent Floyd decision. What plans exist to end the practice of illegally searching people?
• Court overload: By simply issuing summonses instead of making an arrests, NYPD could add roughly 30,000 people a year to the docket of the Summons Court at 346 Broadway. Anyone who has been to the Court knows it is profoundly overloaded and that most of the people there are low-income Black and Latino New Yorkers. Is there a plan to address this?
• Impact on immigrants: Immigrants who plead guilty to a violation for low-level marijuana possession face dire consequences in the immigration system. Issuing summonses could enhance the criminalization of non-citizens, breaking up families. How will the Administration protect immigrants from needless deportation?

“Mayor de Blasio is doing the right thing by ordering NYPD to stop the arrests," said gabriel sayegh, managing director of Policy & Campaigns for the Drug Policy Alliance. "If this proposal is enacted, NYPD will stop arresting people for marijuana possession, and for tens of thousands of people in New York City, that will be a welcome change.

"But this proposal can only be considered a first step, and a complicated one, as the summons creates real problems for people," sayegh said. "The summons process in NYC is a major entry point into the maze of our broken criminal justice system, so even with a ticket, people will be swept into that maze with limited options for exit. And right now, the police are almost exclusively arresting young men of color for marijuana, often as the result of an illegal search.

"It doesn’t make sense to allow a situation where we go from having gross racial disparities in arrests to gross racial disparities in summonses," sayegh said. "Nor does it make sense to accept the continuation of policing practices that violate the Constitutional rights of New Yorkers. Clearly, practical steps can be taken to address these problems, and it’s imperative that the mayor continue down the path of reform.”

“It is encouraging to know that the de Blasio administration is listening to the thousands of New Yorkers who have been advocating to end racially biased marijuana arrests," said Kassandra Frederique, NY policy manager for the Drug Policy Alliance. "New Yorkers deserve a comprehensive solution that deals with the inherent issues around race, class, and neighborhood and that creates checks and balances throughout the entire system so that New Yorkers do not face this problem again in a couple of years.

"New York City should lead the way in supporting comprehensive reform by working with communities and advocates, so we call on the de Blasio administration to work with the communities, advocates, and elected officials to deal with the myriad issues associated with our current broken marijuana policies," Frederique said. "One way to fix these policies is to support the Fairness and Equity Act, a statewide bill, sponsored by Assembly member Karim Camara and Senator Daniel Squadron, that deals with the intrinsic issues of marijuana arrests and bring fairness and equity to New York. The De Blasio Administration should keep working towards a solution that is as comprehensive as the problems associated with these arrests.”

“Today's announcement from Mayor De Blasio and the NYPD to curb arrests for low-level marijuana possession is a long-awaited policy shift," said Alyssa Aguilera, political director of VOCAL-NY. "However, whether an arrest or a violation, questions remain about how people are stopped by NYPD in the first place and how marijuana is discovered by the police.

"The recent Floyd decision confirms the vast overreach and unconstitutionality of many NYPD stops and searches," Aguilera said. "We must continue working to ensure that any penalties associated with marijuana possession, whether they be arrests or summonses, are not the result of due process violations and do not perpetuate racially disproportionate outcomes and overly and unfairly burden communities of color.

"We look forward to using Floyd's joint-remedial process to advance real and permanent remedies for discriminatory policing practices once and for all,” Aguilera said.

The announcement comes at a pivotal moment for drug policy reform in national politics, as last week’s election accelerated the unprecedented momentum for marijuana law reform and other criminal justice reforms. With marijuana legalization measures passing in Oregon, Alaska and Washington, D.C., and with groundbreaking criminal justice reforms passing in California and New Jersey, the election solidified drug policy reform’s place as a mainstream political issue.

Both in New York and nationally, public opinion has shifted dramatically over the last decade in favor of reforming marijuana laws and dismantling the egregious excesses of the drug war. Whether or not this announcement is part of that shift towards real reform remains to be seen.