"The Whole System Relies on These Arrests": The NYPD's Racist Marijuana Arrest Crusade And Its National Implications

 Every morning, several sheets of paper are posted to the walls outside the arraignment rooms of New York City’s Borough Courts. They list the names of the accused scheduled to appear before the judge and the legal codes of their offenses. On most days and across the city’s five boroughs, these lists include multiple names next to the numbers 221.10. This is the legal code for the misdemeanor charge of possessing small amounts of marijuana “open to public view,” meaning the public display or public smoking of pot. In 2010, more than 50,000 New Yorkers were arrested for violating 221.10. The number represented 15 percent of all arrests made by the NYPD and allowed the city to keep its crown of Marijuana Arrest Capital of the World.

Not that there is a credible challenger for the dubious honor. The high number of 221.10 arrests puts New York in a league of its own and has become a lightning rod in the national debate over race and the war on drugs. New York’s marijuana arrests, says a growing chorus of critics, are a prime example of how the nation’s drug laws disproportionately impact black and Latino communities.

This is decreasingly a matter of accusation and anecdote. Hard data are emerging that confirm what marijuana reform advocates and public defenders have long maintained: That the NYPD’s stop-and-frisk policy in high-crime neighborhoods — sold to the public as a way to find illegal guns and reduce violent crime — has instead resulted in racially uneven drug law enforcement practices that seem to violate the spirit and the letter of New York law as well as the United States Constitution.

This is the story of 22-year-old Hakim R., a resident of the Brooklyn neighborhood of Crown Heights who I met one recent morning after his arraignment. He told me he had been walking to work near his home a little after 10 a.m. when two NYPD officers pulled up in a patrol car and stopped him.

“They just came up to me and started frisking me, making me take my shoes off, putting their hands in my pocket, before they even asked me my name [or] asked for ID,” says Hakim. “I was like, ‘You can’t do this, I know my rights.’”

According to Hakim, when the police found a five-dollar bag of marijuana in his back pocket, they charged him under 221.10 and brought him to the precinct station, where he was fingerprinted and locked in a cell for four hours. “I completely forgot I had the weed on me,” he says, shaking his head.

According to the law, it shouldn’t have mattered. New Yorkers have the right to forget about nickel bags in their pockets without risking jail time. But arrests for small amounts of concealed marijuana have grown so common in certain neighborhoods that the law de jure — only pot in plain view justifies arrest — is either not known, or understood not to matter.

The arrests often occur after police carry out a “Terry stop” — a stop-and-frisk procedure named for the 1968 Supreme Court case Terry v. Ohio. Police are allowed to stop and briefly detain a person if they have “reasonable suspicion” that criminal activity is taking place. If police further suspect the person is carrying a weapon, they may conduct a pat-down search, which can lead to the discovery of marijuana.

Critics argue that police in New York and elsewhere are abusing the law by searching suspects regardless of whether they actually believe the suspects may be armed or committing a crime.

In April, the public defenders group The Bronx Defenders released a detailed study of more than 500 plain-view marijuana arrests. They found that in 41 percent of cases citywide (including the one retold in this representative video testimony), marijuana arrests resulted from unjustified stop-and-frisk encounters and/or cases where the drugs only entered public view as a result of a police search.

“These are manufactured misdemeanors,” says Scott Levy, an attorney and chief author of the Bronx Defenders report. “It’s not a crime to have marijuana in your pocket or your backpack. The police are creating crime where there was none before. The justification is to get guns off the street, but only one percent of these searches [find] a gun. In 600,000 searches last year, the most common outcome is the marijuana charge.”

The Bronx Defenders report reinforces research conducted by the Marijuana Arrests Research Project, an online database and analysis hub. In multiple studies, the Project has found overwhelming racial bias and illegality behind marijuana arrests in New York City and around the country. “Whites use marijuana at similar if not higher rates than blacks, yet blacks and Latinos make up nearly 90 percent of all arrests in New York City,” says Jesse Levine, a researcher with the Project. “This demonstrates clear, systematic racism at the heart of police policy.”

This week, the New York Civil Liberties Union released an analysis of NYPD data showing that 87 percent of stop-and-frisk searches last year targeted blacks and Latinos.

New York is emblematic of a national problem. Extreme racial skews are also reflected in the marijuana arrest statistics of major cities across the country, from Los Angeles to Chicago to the District of Columbia.

New York has emerged as America’s marijuana arrest capital only in the last 15 years. For nearly two decades after New York’s “public view” law was passed, the law was enforced more or less as intended. This changed with the mayoral election of Rudolph Giuliani in 1994. The former U.S. Attorney’s brain trust included advisors connected to the Manhattan Institute, a conservative think tank whose fellows James Q. Wilson and George L. Kelling in the early 1980s developed the “broken windows” theory of policing and crime reduction. Backers of the theory posited that police should increase foot patrols in high-crime neighborhoods and focus on misdemeanors, as well as employ pre-emptive tactics such as stop-and-frisks instead of waiting for reported crime. The NYPD began stopping people and demanding they empty their pockets, or forcibly doing it for them. They found some guns, but many more small bags of marijuana that had not been in plain view before the search, and thus should not have been the basis for arrest. The number of pot arrests began a historic decade-long climb.

But it is under the supposedly “centrist” administration of Michael Bloomberg that the number of arrests has once again spiked. Critics allege that under Bloomberg and Giuliani-holdover police chief Ray Kelly, stop-and-frisk policies were maintained as a shortcut for meeting unofficial quotas, which occasionally surface in scandal. Because it has become so ingrained in police practice since the mid-1990s, attempts to end or curb the controversial policy must contend with the full weight of institutional and professional inertia within the NYPD.

“The aggressive policing is driven by Departmental requirements,” says Steve Wasserman, a veteran litigation attorney with the Legal Aid Society. “Officers are required to undertake and document enforcement activities on each tour of duty to keep their careers on track.” The precincts in turn use the numbers to meet their own requirements.

“The whole system relies on these arrests, which have been the most common arrest for NYPD for years,” says Jesse Levine. “It’s built into the system. Despite what [Police Chief] Ray Kelly may want us to believe, it’s not a superficial aspect of police policy, but their bread and butter up and down the chain.”

Though the precise reasons for the continuing surge in searches and subsequent marijuana arrests remain a subject of debate, the results are stark. According to the Marijuana Arrest Project, the NYPD has made 100,000 marijuana arrest in the last two years alone — substantially more than in the 20 years from 1977 to 1996.

Last year, the social impact of these numbers finally began to garner serious local and national media attention. In late September of 2011, Police Commissioner Ray Kelly issued a department-wide Operations Order instructing all of his officers to discontinue the practice of arresting people for concealed marijuana possession.

But little seemed to change. According The New York World, the number of marijuana arrests following police stops saw a slight increase in October following Kelly’s order and remained high through the end of the year.

The personal and social impact of New York’s marijuana arrests extend beyond the time the accused spend in jail waiting to see a judge, or the tens of millions spent prosecuting the cases. Most of those arrested enter a plea to avoid further court dates. Once convictions are entered on their personal record, they can be penalized in myriad ways. Students can become ineligible for a federal education aid for a year. Those employed by city and state agencies, such as the Department of Education, can be fired or suspended without pay.

“What people don’t understand is most of our clients are spending more than 24 hours in jail prior to seeing a judge,” says Scott Levy of The Bronx Defenders. “They’re missing work and school and they have little job security, so they are losing jobs even if the case is dismissed, which it rarely is. There’s an interwoven web of serious consequences. The multiplier effect, with 50,000 arrests concentrated in a few neighborhoods, is astronomical.”

There is currently a bill in the New York statehouse that would reduce plain-view charges to the status of a non-criminal violation. But observers say that while the move is welcome, it is not a complete solution. The change in law would do nothing to address the city’s runaway stop-and-frisk policy, and those charged would still suffer secondary consequences. The less serious violation version of New York’s possession charge — code 221.05, “unlawful possession” of marijuana — can still result in the loss of city and state job licenses for a range of professions, from barbers to private security guards. Others can lose custody of their children. And violations still show up on criminal record searches, which are increasingly used by employers and university admissions offices.

“At the moment there’s just no real functional system of erasing these charges,” says Jesse Levine of the Marijuana Arrests Research Project. “It’s evolved to the point where it’s impossible to just give people a slap on the wrist.”

In lieu of the legalization of marijuana, critics and activists are focusing on reigning in the stop-and-frisk practices that are behind both the marijuana arrests and the concomitant erosion of trust between communities and the police who patrol them. There are currently two stop-and-frisk-related federal class-action lawsuits working their way through the courts. On November 7, the Center for Constitutional Rights filed Floyd et. al. v. The City of New York et. al. on behalf of victims of what the suit alleges is “NYPD’s practices of racial profiling and unconstitutional stop-and frisks.” On March 28, a coalition led by the NYCLU filed a suit targeting the NYPD’s Operation Clean Halls program, which expands stop-and-frisks inside public and private apartment buildings. The City of New York, the Police Commissioner, and individual police officers involved in several allegedly unlawful arrests are listed as defendants.

“The pending class actions are forcing the police to be a little more reflective and restrained,” says Steve Wasserman, of the Legal Aid Society. “But to achieve the brand of policing that New York deserves, we need a new police chief with a different approach.”

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