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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.
 
 
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 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. 

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.