Earlier this month, Brooklyn District Attorney Kenneth Thompson announced that his office would no longer, in many cases, prosecute low-level marijuana possession. Despite being limited to Brooklyn and allowing exceptions for people smoking in public areas or in front of children, the policy represents a historic break in the city’s marijuana decriminalization debate.
“That does not happen because someone wakes up and realizes it’s a problem,” said Kassandra Frederique, New York Policy Coordinator at the Drug Policy Alliance, a national organization that partners with local grassroots groups to reform drug policy. “There is no doubt that public pressure from grassroots organizations and people who have been impacted have influenced the talking points of elected officials on marijuana arrest policy in New York.”
The day after Thompson’s announcement, a crowd of about a hundred people, including a dozen elected officials and representatives from local advocacy groups, gathered outside City Hall in Manhattan to introduce the Fairness and Equity Act — a bill that, if passed, would reduce racial disparities in statewide marijuana arrests by demoting low-level marijuana possession from a misdemeanor to a violation that comes with a fine. It would, effectively, extend Thompson’s policy to the rest of the state and put additional protections in place for people most impacted by current policies of marijuana arrests and prosecution.
According to Frederique, the beginnings of the coordinated campaign that eventually led to the Fairness and Equity Act — and marijuana reform in New York, in general — can be traced back to 2011. A major breakthrough came in September of that year, when then police commissioner Raymond Kelly ordered his staff to stop arresting people for level-five marijuana possession, or small amounts found in public view, which are the most frequent arraignment charge levied against New York City residents.
In Albany, history began to budge toward justice in June 2012 when Cuomo promised to do away with level-five criminal possession charges. Four hundred thousand people were arrested for such possession in the city between 2002 and 2011. In 1993, the year before then mayor Giuliani hired Bill Bratton for his first term as police commissioner, 1,450 people were arrested for marijuana possession. By 2011 the number of possession arrests peaked at 50,684. In 2013, an ACLU report on racial disparities in marijuana arrests in New York State called New York “the nation’s marijuana arrest capital.”
Then, in August 2013, Brooklyn-based grassroots organization VOCAL-NY hosted a forum for the Brooklyn District Attorney candidates to discuss connections between law enforcement, the failed war on drugs and mass incarceration. During that panel a VOCAL-NY member who had been a victim of low-level marijuana arrest told his story and asked both candidates to go on record addressing the issue directly.
Communities United for Police Reform — a campaign that unites dozens of local efforts to change NYPD policy on a number of issues, and whose members include VOCAL-NY and Drug Policy Alliance — hosted a mayoral forum in May 2013. The forum was not well-attended (John Liu was the only candidate to stay for the full hour-long debate, though Bill de Blasio also put in an appearance), and it was this stark absence that ended up grabbing headlines. After that, more of New York City’s mayoral candidates spoke publicly about marijuana decriminalization.
“If you look at the mayoral race that happened, both the Republican and Democratic candidates said they supported decriminalizing small amounts of marijuana, and that’s because grassroots organizations are asking the candidates about it,” Frederique said.
Then, on June 7, Governor Andrew Cuomo signed the Compassionate Care Act, which legalized medical marijuana statewide. While many see the law as a good step, it is still severely regulated. And compared to the rest of the country, New York isn’t exactly at the forefront of medical marijuana acceptance — it’s the 23rd state to allow it in some form.
Nevertheless, this recent string of announcements, policy changes, and actions that are supportive of decreasing harsh penalties and the frequency of low-level marijuana arrests is encouraging. It shows that the momentum is shifting in favor of the grassroots organizations with a social justice mission, culminating in the proposed Fairness and Equity Act.
“It fixes a lot of the things that got passed that didn’t make a lot of common sense,” said Chris McCreight, Director of Communications for New York State Assembly member Karim Camara, who cosponsored the Fairness and Equity Act. “There’s a lot of things [in the bill] that deal with oddities in current law. For example if you’re on the street corner smoking marijuana and you pass it to your friend, that’s considered a sale.”
The reason for that is due to a loophole in the Marijuana Reform Act of 1977, which — despite decriminalizing level-five marijuana possession for first-time offenders — made public and out-of-pocket possession a misdemeanor. New York City’s notorious stop-and-frisk program was designed to exploit this very loophole by giving police the authority to stop people, ask them to empty their pockets, and make an arrest if any marijuana is revealed. This has led to a rate of arrests for marijuana possession that is nine times higher for black people in Brooklyn and Manhattan than for white people in the same boroughs. Statewide, black people are 4.5 times more likely to be arrested for marijuana possession than white people.
Unlike the Marijuana Reform Act of 1977 — which was only concerned with decreasing arrests, and did a poor job of it, no less — the Fairness and Equity Act is explicitly aimed at contending with issues of race equity. “We want to make sure to address some of the extreme collateral consequences — people getting deported, people losing custody of their kids, people getting kicked out of public housing,” Aguilera said.
One way the bill would achieve this is through judicial flexibility. Instead of slotting in a single punishment for a single crime, a judge would have the discretion to assign a different punishment that wouldn’t disproportionately harm the offender. Some have more to lose from having a misdemeanor on their record than others. Professionals, like security guards and nurses, who are licensed by the state, can lose their jobs if charged with a single misdemeanor marijuana arrest.
Another group that judicial flexibility would benefit is New Yorkers who are on the path to citizenship. Many people given a ticket for a marijuana charge would rather just pay the fine and accept a misdemeanor on their record. But for an immigrant, two guilty pleas to a misdemeanor, even if it is not criminal, can result in deportation; one guilty plea and their children may be removed from their home. The Fairness and Equity Act would allow judges to consider granting what’s known as an adjournment in contemplation of dismissal instead. This means the case would be shelved and the defendant freed, usually for a period of up to six months, at the end of which the charges would be dismissed. The judge may, as a condition of the adjournment, require the defendant to undergo counseling or perform community service.
“In this era of mass deportation, immigrants who encounter police or who have prior convictions, even for one marijuana offense are increasingly at risk of deportation,” said Alisa Wellek, Co-Executive Director of the Immigrant Defense Project. “The Fairness and Equity Act is a critical step in safeguarding all our communities from discriminatory policing and harmful drug policies.”
The bill also calls for the establishment of racial and ethnic impact statements for future legislation, which would inform legislators as to how a given bill would heighten racial and ethnic inequality within the criminal justice system. “It’s very clear that the criminal justice system is racially biased,” Aguilera said. “But we want to provide a little transparency.”
Finally, and perhaps most crucially, the law would offer New Yorkers with previous possession convictions an opportunity to clear their record of marijuana-related convictions accrued before the enactment of the bill, although no specifics have yet been provided as to how that process would work. In addition, the bill would also lift the three-year wait on sealing marijuana-related records, so that some prospective employers can’t see them.
To be sure, the Fairness and Equity Act is an ambitious piece of legislation, which if passed, could change the socio-economic landscape of marijuana arrests in ways that other cities have failed to do. Chicago, for example, passed an ordinance two years ago giving its law enforcement the option of issuing tickets for low-level offenses. As a result, the total number of arrests for such offenses has dropped, but the racial disparities in arrests have remained stubbornly the same. Whites represent about a tenth of all ticket recipients and less than 5 percent of those who are still being arrested for low-level marijuana possession.
“It doesn’t matter if there’s 50,000, or 30,000 or 10,000 arrests,” Aguilera said. “If the racial disparities persist, we’re going to continue fighting them.”
For local groups who have been working on decreasing harmful and racially biased marijuana arrests for years, the work continues — especially since the Fairness and Equity Act won’t be voted upon for at least another six months, when the New York State Senate begins its new session in January. As for its organizing effort in the meantime, the local branch of the Drug Policy Alliance will host community events and a speaker series, as well as continue to monitor the courts and data. “For us the game plan is doing education in the community about what’s been happening, what options there are for dealing with arrests, and also the incredible harm caused by past events,” Frederique said.
Meanwhile, according to Aguilera the goal is to build power in the local legislature, to ensure safe passage of the bill. “We want to work in tandem with municipalities, pass resolutions of support in the New York City council, Rochester and Buffalo,” she explained, “and really use the summer and the fall to bring this [bill] to lots of different stakeholders and lots of people who will be impacted by this and get ready for January.”
There is, however, one major player still uniformly opposed to racially just marijuana legislation: the New York Police Department. In May, at a City Council budget meeting, Bratton touched briefly on the subject of marijuana decriminalization, calling it a “major mistake.”
Then, on July 14, he circulated a directive among his staff, telling them to continue arresting Brooklyn residents for low-level marijuana offenses, despite Thompson’s announcement only a week before that such cases would no longer be prosecuted. “The Brooklyn DA’s new policy does not change any policy, practice or procedure of the NYPD,” the memo said.
While the commissioner’s rhetoric isn’t particularly surprising, it’s counter-productive, even from a law enforcement perspective. “[The current marijuana criminal code] is a huge burden on the police,” explained McCreight. “Every marijuana arrest takes three hours of police time.”
“[The current marijuana criminal code] is a huge burden on the police,” explained McCreight. “Every marijuana arrest takes three hours of police time.”
For many New Yorkers, though, it seems that the NYPD’s priority isn’t cutting back on time spent processing arrests so much as making sure poor people of color are doing time for low-level drug offenses.
“So many of these marijuana cases move forward because of NYPD practices that are unlawful searches and racial profiling,” she said. “It’s criminalizing the poor, criminalizing communities of color.”
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