Hypocritical NYPD Continues Racist Pot Arrest Crusade

Since the police commissioner told the NYPD to follow the books on marijuana arrests, all that's changed are the court proceedings that unfairly criminalize thousands.

 Despite a well-publicized police order instructing officers not to use bogus pretexts to justify marijuana arrests, New York City remains the pot-bust capital of the United States. 

Shop ▾

Preliminary figures released in late November indicated a slight decline in arrests for misdemeanor possession of marijuana in the two months since Police Commissioner Ray Kelly told police to arrest people for marijuana only if it was genuinely “open to public view,” because having a small amount in your pocket is decriminalized, and does not warrant an arrest. The department had come under criticism because the basis for many pot busts was that defendants had emptied their pockets when told to do so by police—and when they did, they brought their marijuana into “public view.” 

In practice, little has changed, say defense attorneys and legalization advocates. “It still is happening a lot,” says Sydney Peck, a Brooklyn public defender. “A police officer pulls marijuana out of someone’s pocket, and all of a sudden, it’s marijuana in public view.” 

Since New York State decriminalized marijuana in 1977, possession of less than 25 grams of marijuana has been a violation carrying a maximum $100 fine for a first offense. Since Mayor Rudolph Giuliani made petty pot offenses a police priority in the late 1990s, however, the vast majority of people arrested have been charged with possession in public view—a misdemeanor with a maximum penalty of three months in jail, with a conviction bringing a permanent criminal record. More than 85% of those busted are black or Latino. 

To be prosecuted for marijuana in public view, explains Odalys Alonzo, chief assistant to Bronx District Attorney Robert Johnson, the defendant has to be observed either smoking in public or displaying a glassine or plastic package that police recognize as marijuana. “Sometimes, we see three people charged for one joint, because we’ve seen them passing a joint,” she says. 

The apparent decline may be simply because the preliminary figures are incomplete, says Queens College sociologist Harry Levine, who has tracked drug arrests in the city since the late-1980s crack era. Others cite random and seasonal fluctuations in arrests. In any case, the city’s courts continue to see a heavy flow of marijuana defendants. By mid-November, pot-misdemeanor arrests this year had already exceeded the 45,500 in 2009, and the year's total might surpass the 50,400 in 2010. 

“The volume seems to have kept up,” says Scott Levy, a lawyer with the Bronx Defenders, a public-defender group. The biggest change since Kelly’s announcement, Levy suspects, may be in how complaints are phrased. Police, he says, are increasingly reporting that they saw a defendant “take an object and put it in their pocket” and then found it to be marijuana when they searched them, but “our clients are saying that they never had it out.”

Joshua Saunders, a staff attorney at the Brooklyn Defenders Society, another public-defender group, says he’s seen a lot of “dropsy” cases, in which police say they saw the defendant drop the marijuana on the ground. He points out the police report of a man busted for three bags of pot in the Brownsville neighborhood in November. It says the officer observed the man on the sidewalk in front of a bodega “in possession of a quantity of marihuana which was open to public view and which informant recovered from defendant’s pants pocket.” Saunders wonders if the man had “transparent pants.”

Gabriel Sayegh of the Drug Policy Alliance estimates that “depending on the borough, anywhere between 50 and 75% of the arrests are completely bogus.” Though some arrests come from smoking in public, he contends that most come from illegal searches, such as when an officer patting down someone for weapons goes through their pockets and finds marijuana, and then arrests them for having it in public view. 

If the police had really changed their search-and-arrest policy, he says, “we would expect to see a bigger drop” in arrests.

Fewer Nights in Jail 

One significant change is that most people arrested for misdemeanor marijuana possession in New York are now given criminal summonses called “desk appearance tickets,” instead of being “put through the system,” held in jail overnight and arraigned the next morning. (In the Giuliani era, they often had to spend two days in jail before being arraigned.) People who receive DATs are usually held for about four hours and given a date to appear in court. Unlike a traffic ticket, however, a DAT involves a criminal charge. 

This has become a general policy with misdemeanors in the city over the past couple years, says Alonzo. Defendants who qualify as reasonable risks—who have some combination of family ties, a stable address, and a phone in the city; are in school or working; and have no outstanding warrants or open cases—are given DATs.

In recent arraignments in Brooklyn Criminal Court, a Depression-era stone edifice in downtown Brooklyn, it’s rare to see more than 10% of the defendants coming in from a night in jail charged with marijuana offenses. Most of the ones that do have other charges—possession of a knife, possession of stolen property—or warrants for their arrest.

One is a sullen, long-jawed man with a goatee. The prosecutor says he hooked up a deal for an undercover cop to buy a $10 bag of marijuana, and then demanded a $5 tip. His lawyer questions the “odd set of facts,” but doesn’t object to the $1,000 bail—the defendant has a recent felony conviction for assaulting a police officer. “No fuckin’ marijuana,” he curses as he’s led back to jail. A white-haired man, police say, ran away after he was stopped for urinating in the street, throwing his bag of pot on the ground. That gets him charged with attempted tampering with evidence, which carries up to a year in jail. He pleads guilty and gets “time served,” the time he spent in custody.

Meanwhile, in one week in December in the Bronx, one-third of the DAT cases, 37 out of 111, were for misdemeanor marijuana possession, says Scott Levy. Those arrests were from September, he cautions, but the pattern holds for more recent cases in Brooklyn. One morning in court there between Christmas and New Year’s Eve, on a day so slow that the same judge handles both arraignments and DATs, ten marijuana defendants pass through in two hours. Eight have DATs and two went through the system. All are black or Latino. 

“Defendant charged with Penal Law 221.10,” the bailiff calls out, intoning the state criminal code’s number for marijuana in public view, and the defendant trudges up to face the judge. There is a body-language disparity: The lawyers, both prosecutor and defender, place their hands on the bench in front of them. The defendants hold their hands behind their back, as if handcuffed. This is a rule.

A goateed, sunken-eyed man in a red sweatshirt emerges from the glass-enclosed booth where defendants who spent the night in jail sit. He pleads guilty in exchange for four days community service. The prosecutor had asked for $1,500 bail because he had a five-year-old warrant.  He rocks nervously as the judge reads the boilerplate language of plea bargains. “Did anyone force you to plead guilty? Do you understand you’re giving up the right to cross-examine witnesses?”

A young dreadlocked man in baggy jeans, work boots, and a brown padded winter vest gets one year “ACD”—adjournment in contemplation of dismissal, also known as a conditional discharge. That means if he doesn’t get arrested again in the next year, the charges will be dismissed and the record will be sealed. It’s an almost automatic disposition for first marijuana offenses, but he has a prior arrest for misdemeanor assault. He walks out smiling.

The next pot defendant has already had an ACD on a previous bust, so the prosecutor doesn’t want to deal. He gets released without bail—known as “ROR,” for “on his own recognizance.”

A teenager from Bedford-Stuyvesant pleads guilty, but gets ACD. 

A grey-bearded man’s lawyer questions the police report. The marijuana “was recovered from my client’s person, and yet it was open to public view?” That gets the charges dismissed.

Another teenager gets ACD after his lawyer notes he’s applying to college.

A woman charged with simple possession—Penal Law 221.05, a violation—has the charges dismissed. 

A stocky, middle-aged man with a shaved head pleads guilty to disorderly conduct, a violation, in exchange for time served.

An Afro-Caribbean woman who looks dressed for a job interview, in a navy-blue jacket and black tights, her hair neatly pulled back, gets one year ACD. She’s a home health-care aide. Her arrest was the result of “lazy cops,” says her lawyer, Sydney Peck of Brooklyn Defender Services; the people smoking pot around her ran away, and she was “just there.” 

The last pot defendant of the morning’s session went through the system. He has a warrant, so his case is postponed until the afternoon.

The health-care aide’s ACD is immediately sealed. This is important, explains Peck, because even a minor marijuana arrest can have “collateral consequences.” 

Those consequences, says Saunders, can include having a citizenship application delayed, being denied re-entry to the country if you have a green card, being barred from moving into public housing, being denied student loans, not being able to get a commercial driver’s license, and losing licenses to work as a home health-care aide, a security guard, or a barber. Some of these, such as the immigration issues, affect people who have not been convicted, but have open cases.

Conversely, says Alonzo, prosecutors are allowed to unseal ACDs to show the court that the defendant has a prior record. They do this for all marijuana offenders, she says.

Though ACDs are almost automatic for a first marijuana offense, says Saunders, they last a year, instead of the six months typical for other charges. Second offenders, says Alonzo, will get community service if they have relatively few “contacts” with the system, jail time if they have a more serious record. 

Pot-misdemeanor offenders with two other arrests and one conviction within the past year land in the city’s Operation Spotlight program, which flags them for “enhanced prosecutorial attention.” This means that prosecutors refuse to offer plea bargains, says Saunders. About half of judges, he estimates, will let these defendants plead guilty in exchange for time served, but others will give five or ten days in jail. 

A Blow to the Futures of Black and Latino Youths

Brooklyn is slightly less than 40% white, but none of the day’s ten pot defendants are. The racial disparities in New York’s marijuana arrests are stark. Since the Giuliani crackdown began, almost seven-eighths of the more than 500,000 people popped have been black or Latino, mostly young men. 

“I don’t think I’ve ever seen a white person run through the system for marijuana,” says Saunders, a public defender for five years. (At the arraignments I observed, the few whites were there mainly from domestic-violence complaints—where arrest can be mandatory in some cases—and on a Monday morning, for drunk and disorderly.)

Between 2008 and 2010, according to figures complied by Harry Levine, there were eight police precincts in New York that averaged less than one arrest a year per 1,000 residents for misdemeanor marijuana possession. All of them are less than 20% black or Latino. Thirteen precincts averaged more than 10 pot busts per 1,000 residents. All but two are more than five-sixths black or Latino—and of the two exceptions, one was the largely nonresidential Midtown North precinct. 

The lowest rate was in the 19th Precinct on Manhattan’s Upper East Side, Mayor Michael Bloomberg’s neighborhood, which is 8% black and Latino—and more than 8% millionaires. It averaged a mere 35 pot busts a year, in a population of more than 200,000. The highest rate, more than 25 per 1,000 residents, came in the Lower East Side’s 7th Precinct, one of the city’s smallest, where heavily Latino and black housing projects abut a gentrified bar-and-party district.

Two adjacent Brooklyn precincts, the 73rd in Ocean Hill-Brownsville and the 75th in East New York, accounted for almost 5,000 marijuana arrests a year. The 73rd had the second-highest rate in the city. Its 82,000 people are 96% black and Latino. The East New York precinct produced the most arrests, averaging more than 2,800 a year. Its 175,000 people are 90% black and Latino.

Some of this can be explained by high crime rates and the ecology of drug use. Brownsville and East New York, which contain some of the city’s poorest areas, had seen 26 murders each as of Dec. 18, while the Upper East Side had had one. Marijuana use and dealing among the young and poor tends to be more public and therefore more exposed to arrest, especially in a heavily policed neighborhood. 

This also makes them “easy targets,” says Saunders, when “police have an enormous incentive to make as many arrests as they can” and “there’s no disincentive for bad arrests.” In a city government obsessed by “metrics,” such as evaluating schools almost solely on their test scores, running up arrest numbers is a strong way for police, both officers and commanders, to demonstrate productivity and win promotions.

Marijuana arrests are also relatively safe and easy, notes Harry Levine, and can be financially lucrative, because “the easiest way to get overtime is to make an arrest at the end of a shift.”

However, few can deny the racial overtones of Rudolph Giuliani’s crackdown on petty offenses that led to the explosion of marijuana arrests. Elected with 70% of the white vote and less than one-third of the black and Latino vote, he catered to whites who had both a legitimate fear of crime and a perception that the mere presence of black and Latino youth constituted a “broken window,” in his favorite criminologists’ phrase. Bloomberg, though he has been much less openly antagonistic to the black and Latino communities than Giuliani was, has quietly sustained the marijuana-arrest policy for more than twice as long.  

Whether or not this policy is consciously racist—there are those who would argue that concentrating massive arrests in black and Latino neighborhoods is, especially if many are based on questionable procedures—the racial disparities at each step of the process, from street policing to sanctions on repeat offenders, add up and compound like unpaid credit-card debt. The racial ratios have remained remarkably consistent throughout the cannabis crackdown’s 15-year history.

The number of people arrested for marijuana possession in New York City in 2011 would be enough to fill almost every seat in Yankee Stadium. Harry Levine dismisses the policy-change announcement as a “PR measure.” 

“They want to create the appearance that they’re responding to public pressure,” he says. 

Steven Wishnia is a New York-based journalist and musician. The author of Exit 25 Utopia and The Cannabis Companion, he has won two New York City Independent Press Association awards for his coverage of housing issues.