NYPD Plans to Stop Arresting Cannabis Consumers. It Also Should Stop Charging Them With a Crime. [UPDATED]


Office of the Mayor

The New York Times reports that the NYPD plans to stop arresting people for possessing small amounts of marijuana "in public view." Cops will instead issue summonses requiring pot possessors to appear in court on the misdemeanor charge. That means cannabis consumers, provided they have ID, will no longer be handcuffed and taken to a police station for processing.

In 2012, the Times notes, "more than half of those arrested for marijuana were released a couple of hours after being brought to a station house," where they were "fingerprinted, checked for warrants and issued a ticket demanding their appearance in court six to eight weeks later." The rest "were 'put through the system,' meaning they were held for up to 24 hours before being arraigned."

Eliminating arrests for this petty offense would be a big improvement, since cannabis consumers in New York City would no longer have to endure the humiliation, inconvenience, and deprivation of liberty that has been routinely inflicted on them until now. But they would still be charged with a misdemeanor, even though merely possessing up to 25 grams of marijuana (about nine-tenths of an ounce) has not been a crime in New York state since 1977, and they would still be subject to arrest if they did not have ID or failed to appear in court. It does not sound like the NYPD plans to change its practice of transforming a violation into a misdemeanor by claiming that marijuana was possessed in public view (often as a result of police instructions or pat-downs).

Mayor Bill de Blasio condemned  such arrests during his campaign last year, calling them "unjust and wrong." He noted that pot busts disproportionately affect minorities and can have "disastrous consequences for individuals and their families," since they "limit one's ability to qualify for student financial aid and undermine one's ability to find stable housing and good jobs." But so far petty marijuana arrests have been just as frequent under De Blasio as they were in 2013. Now he apparently has decided that the arrests should be replaced by misdemeanor summonses, which are not as bad but can have the same "disastrous consequences" that he decried last year.

This latest shift in policy is reminiscent of a change announced by De Blasio's predecessor, Michael Bloomberg, in February 2013:

Right now, those arrested for possessing small amounts of marijuana are often held in custody overnight. We're changing that. Effective next month, anyone presenting an ID and clearing a warrant check will be released directly from the precinct with a desk appearance ticket to return to court. It's consistent with the law, it's the right thing to do, and it will allow us to target police resources where they're needed most. 

That change was welcome, but it raised the question of why cops were bothering to arrest people for this trivial offense at all, especially since Bloomberg said "Commissioner [Ray] Kelly and I support Governor [Andrew] Cuomo's proposal to make possession of small amounts of marijuana a violation, rather than a misdemeanor, and we'll work to help him pass it this year." Like De Blasio, Cuomo highlighted "gaping racial disparities" in marijuana arrests, saying he wanted to "save thousands of New Yorkers, particularly minority youth, from the unnecessary and life-altering trauma of a criminal arrest." He regretted the "countless man-hours wasted" on "what is clearly only a minor offense." But after De Blasio, a fellow Democrat, was elected, Cuomo dropped the proposed legislative fix, saying "it's not timely in the way it was last year." 

Either possessing small amounts of marijuana for personal use should be a crime, or it shouldn't. If it shouldn't, the legislature should eliminate the "public display" loophole. But even if it doesn't, De Blasio, like Bloomberg before him, has the discretion to stop charging cannabis consumers with a crime that is not supposed to exist anymore. 

Update: As described by the NYPD today, De Blasio's new policy calls for people possessing 25 grams or less of marijuana "open to public view," a misdemeanor, to be cited instead for "unlawful possession of marijuana," a violation "punishable only by a fine of not more than one hundred dollars." People who are caught smoking marijuana will not be eligible for the lesser charge. But as of November 19, people whose marijuana is discovered in the course of a police stop are supposed to be cited rather than arrested, as long as they can present ID and have no outstanding warrants. They not only will not be taken into custody but will not be charged with a misdemeanor.

"People smoking marijuana in public will continue to be arrested," said Police Commissioner William J. Bratton. "But possession of small amounts, with certain exceptions, is not considered a high enough level of offense to merit the time and resources the Department spends when arresting people, or the potential associated consequences of criminal justice involvement for the arrestees."

Assuming the NYPD follows through on the new policy, it will address the ancillary consequences of a misdemeanor arrest as well as the immediate effect for many cannabis consumers who heretofore would have been hauled away in handcuffs. De Blasio should be commended for using his discretion to make this change rather than waiting for new legislation.