Pot-smoking arrests to stop — or will they?

A woman publicly puffed on a big blunt in Union Square at the Cannabis Parade and Rally in May. As of Sept. 1, police will stop making arrests for smoking pot in public and can issue tickets instead — but there are a lot of mayor-sanctioned loopholes, such as not having ID, that will allow cops to still make an arrest. A summons for public pot smoking usually runs $100, but the fine amount is at the discretion of the judge, who can take past offenses into account. Photo by Milo Hess

BY SYDNEY PEREIRA | Smoking weed in public technically won’t get you arrested starting this Sat., Sept. 1 — but the mayor has laid out exceptions to the new rule that even the Manhattan district attorney is questioning.

Mayor Bill de Blasio’s new directive starting Sept. 1 would direct the New York Police Department to issue summonses — rather than make arrests — for smoking pot in public.

The policy will begin a month after Manhattan District Attorney Cy Vance’s policy was implemented on Aug. 1. The Manhattan D.A. will no longer prosecute people for marijuana possession, except for those selling marijuana or if the person poses a “significant threat to public safety.”

But the mayor’s policy includes exceptions that are much more significant — and some are questioning whether its intended goal to reduce racial bias is even possible due to those so-called “carve-outs.”

Under de Blasio’s directive, police officers would be able to arrest people for pot possession or smoking if they are on probation or parole, have existing criminal warrants, don’t have an ID, have a recent documented history of violence, or their smoking poses a public safety risk, including while driving.

The city expects marijuana arrests to drop by 10,000 per year under the policy. The Manhattan D.A.’s office estimates marijuana possession prosecutions, in this borough alone, will plummet from 5,000 to 200 per year.

“Technically, what the mayor and the D.A. have done can be looked at as some form of decriminalization,” said Chris Alexander, the Drug Policy Alliance’s policy coordinator. But, he added, “If they’re really trying to decriminalize, [they should] remove criminal penalties altogether.”

The D.A.’s “shift is a little bit more significant and a little bit more sweeping and probably is going to be more impactful,” Alexander added.

Mayor de Blasio’s exceptions for the Police Department would continue to allow officers to stop and run a background check on someone smoking weed. If that person doesn’t have an ID, they would be arrested. Plus, marijuana possession arrests already disproportionately impact young people in their teens and twenties. Young people, said Alexander, are less likely to even know if they have a warrant in the first place.

“We just know that when you leave people out like this, the people who end up getting hurt the most are people that are black and Latino from low-income communities, are homeless, are noncitizens — the list goes on,” he said.

Marijuana, in short, becomes a “tool” to be used by law enforcement officers, he said. The Manhattan D.A.’s Office argues the policy won’t even address the racial bias in marijuana arrests, which disproportionately impacts black and Latino people.

Though Vance’s communications director Danny Frost said de Blasio’s policy is a “welcome step” toward reducing unnecessary pot arrests, the city’s new stance likely won’t solve racial bias in policing.

“The mayor’s policy, while laudably reducing the number of arrests for marijuana, is not likely to alleviate racial disparities,” Frost said in a statement. “Rather, by excluding from its benefit racially disparate populations, such as New Yorkers with prior arrests, people on probation and parolees working to reenter their communities, this policy could have the unintended consequence of further solidifying the racial inequities in marijuana enforcement.”

Rebecca Kavanagh, senior staff attorney at the Legal Aid Society, added that giving police officers discretion creates further problems.

“The police officer uses his or her discretion and can decide on the basis of nothing to make an arrest,” she argued. “Whenever you have an exception, whenever someone has discretion, you’re going to have racism in the application of that discretion.”

When a person is on probation, it means their crime resulted in a non-jail sentence since it was a nonviolent, minor crime. Those on parole have already served their jail time and been released, but must follow certain conditions, such as not violating the law again.

“Why should they face an additional penalty [versus] someone who’s not on parole or probation?” Kavanagh said.

“It’s really going to be the same people who are coming through the system now,” she said of de Blasio’s policy change. She noted that police can still stop someone for smoking pot in order to determine whether or not he or she falls into one of the exceptions.

“You can’t determine any of those things without stopping people,” said Kavanagh, who practices in Brooklyn. Put simply, she said, “So if someone does have marijuana, you can be stopped.”

And “who are they going to stop?” she added, “they are going to stop black and brown people.”

According to a report last summer by the Drug Policy Alliance, about 86 percent of marijuana arrests in New York City between 2014 and 2016 were of black and Latino persons, even though blacks and Latinos together comprise roughly 51 percent of the city’s total population.

A report released by the Police Reform Organizing Project this year found that 93 percent of marijuana possession arrests during the first six months of 2018 were of people of color, the New York Post reported in late July.

“The numbers just document in an undeniable way that the practice is racist,” said Bob Gangi, who heads PROP.

The highest rates of marijuana possession arrests in Downtown Manhattan neighborhoods are in the Seventh and Fifth Precincts, including the Lower East Side, the Two Bridges area, Little Italy and Chinatown, according to D.P.A.’s analysis of the Division of Criminal Justice Service’s 2016 statistics.

Around 500 out of every 100,000 people — or about one of out every 200 people — are arrested for pot possession in those neighborhoods, according to the report. In the Seventh Precinct, 52 percent of pot arrests are of black and Latino people while those groups make up just 40 percent of the overall population. In the Fifth Precinct, 66 percent of pot arrests are of black and Latino people, although those groups make up just 16 percent of the precinct’s population.

The racial disparity is far greater in the West Village’s Sixth Precinct, where 69 percent of arrests are of black and Latino individuals, while just 8 percent of the precinct’s population is black or Latino. The East Village’s Ninth Precinct is 31 percent black or Latino, but 82 percent of marijuana possession arrests there are of black or Latino persons.

The argument that perhaps marijuana arrest rates are higher where marijuana complaints are higher is bunk, according to a New York Times analysis published this May. For instance, western Harlem, which has twice the number of black residents as the Upper West Side, also had double the marijuana arrests. But 311 and 911 complaints about pot were the same in both neighborhoods.

Mayoral and police department spokespersons referred The Villager to de Blasio’s June statement announcing the policy change.

“Nobody’s destiny should hinge on a minor nonviolent offense,” de Blasio said in a statement. When reporters questioned him at the June press conference about how his policy would not address racial disparity, he emphasized that it would reduce arrests over all.

Tracie Keesee, the Police Department’s deputy commissioner of equity and inclusion, said the issue of disparities in arrests still needs to be addressed.

“When we talk about the broader historical context around disparities, that’s one of the spaces we have carved out that we have to continue to look at,” Keesee said. “So, part of the policy thinking around the summons piece will reduce the overall arrest numbers. But this issue of disparities is a larger, complex one that we have to grapple with still.”

The Drug Policy Alliance argues that marijuana should be fully legalized, but that, in the meantime, de Blasio could direct the Police Department to issue no tickets, no arrests and no fines.

“People look at that as a hard request,” Alexander said. “But if you’ve lived in this city, there are things that white people can do that black people cannot. For many, marijuana has already been legal.”

Gangi of PROP said that although legalization is the goal, fully decriminalizing recreational marijuana use could be implemented immediately by the mayor.

“[De Blasio] has the power to do that, but he’s obviously not willing to do that,” said Gangi, who also ran against de Blasio in last year’s Democratic mayoral primary. “Which means — particularly with the conditions he’s laid out — cops will continue to arrest people for marijuana.

“You could end the racial bias literally tomorrow — actually, this afternoon,” he added.

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