A few months ago, I was on a road trip with some friends in upstate New York when we were stopped and searched by state troopers who deployed a drug-sniffing dog. They pulled us all out of the car and tore through our rented minivan, discovering a small plastic baggy with about a gram of weed in it. When they turned up the bag, my homies and I—all young, brown men—instinctively held our hands out to our sides, palms out, as a show of surrender.
The cops started laughing. One of them approached me and said, "I get it. You're coming from the city, it's a long drive, you brought a little weed to smoke on the way. Put your hands down. It'll be fine." My friends and I exchanged quizzical glances. We're all used to getting the third degree when it came to drugs and cops. This guy was understanding, almost friendly. The trooper continued, "It's a $100 ticket. Hang tight, you'll be on your way in five minutes."
We were all too suspicious to be relieved. Based on how New York City cops treat instances of small marijuana possession, it seemed like we were getting away a bit too easily. Sure enough, the trooper handed me a ticket requiring me to appear in court for "Unlawful possession marihuana" [sic]—article 221.05 of New York State penal law. Maximum penalty $100. As promised, we were free to go. When we all got back in the minivan, I asked the burning question.
"That's it? How come people get arrested for the same shit in the city?"
The State of New York severely lowered penalties for marijuana possession in 1977, attaching article 221 to the penal code on drug enforcement. If you don't have any priors, and you're not smoking or selling, possession of 25 grams or less will only result in a fine for your first two offenses. Anyone clumsy enough to get caught a third time might see up to 15 days in jail. But residents of New York City haven't been living under the same law as the rest of the state for almost two decades.
"That's it? How come people get arrested for the same shit in the city?"
The NYPD arrests a lot of people for simple marijuana possession under 25 grams. Last year, 28,644 people were busted for weed, and over 15,000 were popped in the six-month period between March and August of this year. This is nothing new.
Marijuana arrests in New York City started shooting up in 1996 after the departure of Police Commissioner William Bratton, then serving under Mayor Rudy Giuliani. Many attribute the drastic rise in marijuana arrests to Bratton's signature Broken Windows approach, which targets quality of life crimes and has been criticized for precipitating racist police practices. While marijuana arrests did rise slightly under Bratton during his first term, his replacement Howard Safir oversaw the largest surge and carried it through the end of his tenure in 2000, hitting 51,000 marijuana arrests that year while being harshly criticized for a number of high-profile controversies. Remember the murder of Amadou Diallo? The brutal beating of Abner Louima? Both racially polarizing events occurred on Safir's watch.
The marijuana arrest trend continued through the brief reign of Commissioner Bernard Kerik from 2000 to 2001. When Mayor Michael Bloomberg took office in 2003, he brought back Raymond Kelly as police commissioner. Kelly had served as commissioner under Mayor Dinkins from 1992 to 1994, just before the arrival of Mayor Giuliani and Commissioner Bratton. Though marijuana arrests were extremely low during Kelly's first go at the job, he came back with a vengeance against weed offenders, and under him the NYPD used stop-and-frisk tactics to make over 50,000 marijuana arrests in 2011. Under Kelly, stop-and-frisk incidents went from under 100,000 in 2002 to nearly 800,000 in 2011, and consistently over 80 percent of the targets were people of color. Dubbed a "marijuana arrest crusade" by the New York Civil Liberties Union (NYCLU), the NYPD's practices severely hurt the department's already thin credibility with the city's minority population.
Despite the damage done, hope for resolution came when a new administration assumed power in New York at the start of this year. Mayor Bill de Blasio's is a task of redemption, and it won't be easy. As Donna Lieberman of the NYCLU told me on the phone, "We have a lot of work to do. You don't change a culture that's two decades in the making overnight."
Amidst the state's pseudo-legalizing of medical marijuana and the country's slow embrace of the plant, NYC's continuing war on weed looks all the more unjust.
New Yorkers elected Bill de Blasio mayor in 2013, following a slew of progressive campaign promises including an easing of marijuana enforcement in the city. He brought back Bratton, who had improved the LAPD's public image when running that department. But the Drug Policy Alliance released a report last month revealing that, despite the campaign promises, marijuana arrest numbers are continuing at high rates under his administration, and people of color are being arrested at highly disproportionate rates. Amidst the state's pseudo-legalizing of medical marijuana and the country's embrace of the plant, New York City's continuing war on weed looks all the more unjust.
De Blasio and Bratton embarked on some damage control last week when they announced at a press conference that the NYPD would no longer arrest marijuana offenders who possess 25 grams of marijuana or less. In other words, they would follow the actual laws of New York State as opposed to continuing the arrest rampage the department has been on for the last 17 years. De Blasio reasoned that this action would remedy the racial disparity in marijuana arrests, even though nothing in the new guidelines directly addresses the targeting of minority marijuana offenders. It's a simple reiteration of what has been state law since 1977.
For all of de Blasio and Bratton's fanfare, their action seems merely a gesture. The new protocol was delivered to NYPD officers via an operations order the day after the announcement. There are dozens of such directive documents circulated among officers each year—similar operations orders on the exact same marijuana enforcement protocol as the new one were distributed to police in 2011 and in 2013 under Commissioner Ray Kelly. As a result, possession arrests declined, but remain in the tens of thousands. Orders or no orders, cops continue busting people for small amounts of marijuana.
The effective implementation of the new marijuana enforcement protocol lies in the hands of individual NYPD officers. It's at their discretion to deal with marijuana offenders on a case-by-case basis and either write them a ticket or cuff them, and cops can still choose to discriminate based on race—it's a matter of personal judgment. According to the new guidelines, anyone who appears to be "under the influence of drugs/alcohol" or looks like they just put out burning marijuana will be arrested. These indicators are vague and hard to prove. There are plenty of exceptions that officers can invoke to make an arrest if they really want to.
"What de Blasio and Bratton are saying is that only a very narrow band of marijuana offenses will be eligible for a ticket as opposed to an arrest," said Martha Rayner, professor of criminal law and criminal procedure at Fordham Law School. "In the past, there have been policies that have required or encouraged tickets for that narrow band, and yet we continued to have these huge numbers of marijuana arrests."
The police unions have expressed dismay at the new protocol. An NYPD source told the Daily News that the department may even enact a slowdown—simply doing less to protect the city because they're upset.
"Cops fucking love overtime. It's the real incentive of the entire rank and file of policing."
Their resistance stems from the entrenched role that marijuana arrests play in police productivity, both at an institutional and an individual level. The aforementioned NYCLU report found that precincts can easily beef up their stats by piling up possession offenses, and that police officers prefer to make marijuana arrests because of the relative lack of danger involved and the overtime that results from the time spent processing such arrests. One cop even went as far as to tell NYCLU that marijuana offenders are preferable to deal with through the arrest process because they are "physically clean, not smelly or dirty." Running an innocent, docile stoner through the system is a great way for a cop to tack on some extra hours at the end of a shift.
"The key is overtime," says Peter Moskos, former Baltimore police officer and current professor at John Jay College of Criminal Justice. "That's what incentivizes most police behavior. Cops fucking love overtime. It's the real incentive of the entire rank and file of policing." In a town where possession arrests account for 12.7 percent of the total number, and untold hours of easy overtime, it's hardly surprising that the cops are pissed about this new development.
Marijuana arrests are also a starting point that can lead to different types of enforcement, further upping stats. Rayner tells me, "Marijuana arrests were designed to enforce zero-tolerance policing. The idea is to bring people in to search and interrogate. That's what this kind of policing is about—you want to look in people's pockets and find out what they got in there, and you want to interrogate them, find out what they know, and potentially get something bigger."
With small weed arrests out of the equation, cops will have to find other ways of uncovering more serious crimes. "Are cops going to replace this with some other low-level discretionary bullshit arrest to keep the numbers up?" Moskos asks rhetorically. "Maybe, but I can't quite think of something that's so easy. Cops can be ingenious, though. They might discover it."
Whereas a single marijuana arrest could once earn a cop a stat, a lead, and a couple of overtime hours, now it will earn them almost nothing. A ticket is a low-value stat, and requires no extra time for processing, nor a court appearance (for the officer, at least). It seems cops hate writing them as much as civilians hate getting them. If officers can find exceptions to the new protocol, they could perhaps continue making such arrests, but Moskos doubts this will happen. "I think this will change the police culture," he says. "I think this is finally saying, 'Just stop trying to find weed on people,' and the cops will stop because they're not going to get an arrest for it."
As it stands, no one is entirely happy with the new policy. Cops think it goes to far, advocacy groups think it doesn't go far enough, and their disagreement shines a light on the ideological gulf between New York City and its law enforcement. Over 17 years and under the leadership of four police commissioners, the city has unduly redefined its marijuana laws into draconian pitfalls for harmless citizens. It remains to be seen whether the new directive from City Hall is a genuine attempt to reconcile injustice or merely another empty gesture that won't penetrate the bureaucratic operation of the NYPD.
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