NYC marijuana policy perpetuates unfair targeting of people of color, critics say

The de Blasio administration’s new marijuana policy is being panned by community advocates and criminal justice experts who say it will do nothing to address the racial disparity in policing public smoking offenses.

The policy shift, outlined by Mayor Bill de Blasio and NYPD Commissioner James O’Neill on Tuesday, dictates that officers should issue summonses for public pot smoking rather than arresting an individual beginning Sept. 1. The de Blasio administration estimates this will lead to 10,000 fewer marijuana arrests per year.

There are, however, several exceptions to the policy that could lead to an arrest, including if a person is on parole or probation; has a warrant out for arrest; doesn’t have identification on them; has a recent history of domestic violence on record; or if their smoking poses a public safety risk. The policy was also announced with a caveat that gives officers “discretion on how to exercise their enforcement powers.”

Attorney Cristina Buccola, founder of CB Counsel and New York Cannabis Bar Association member, said while she believes the new policy is a step in the right direction, she has concerns on how it will be interpreted by officers.

Mayor Bill de Blasio and Police Commissioner James O'Neill unveil a new policy to reduce marijuana arrests during a news conference  at the Thomas Jefferson Recreation Center in Manhattan on Tuesday.
Mayor Bill de Blasio and Police Commissioner James O’Neill unveil a new policy to reduce marijuana arrests during a news conference at the Thomas Jefferson Recreation Center in Manhattan on Tuesday. Photo Credit: Linda Rosier

“It seems like there’s still going to be discretion on the part of the NYPD on when this can be escalated into an arrest,” Buccola, 41, said. “My biggest concern is that nothing changes. . .We’ve just said these people still don’t qualify for summonses because of X, Y and Z.”

The new policing policy is the direct result of a 30-day Marijuana Working Group convened by the NYPD in an attempt to resolve inequity in the way marijuana offenses were being enforced, citing a Manhattan District Attorney’s Office report that showed people of color are arrested on low-level marijuana charges at significantly higher rates than white people. In the wake of the report, Manhattan District Attorney Cyrus Vance said his office would stop prosecuting most marijuana possession and smoking cases beginning Aug. 1.

Several community groups argue the mayor’s new policy will do little to change the status quo, particularly in light of the exceptions listed for an arrest instead of a summons.

“If the mayor wanted to create a plan to make racial disparities in marijuana enforcement worse, he’s accomplished it with this,” Communities United for Police Reform spokeswoman Monifa Bandele said.

Moving from arrests to summonses does nothing to address disparities and instead hides them from view because demographic data on summonses is not publicly released the way arrest data is, according to Bandele.

Nick Encalada-Malinowski, civil rights campaign director for VOCAL-NY, said while the policy may lead to fewer arrests overall, the exceptions listed ensure that the same communities that were previously over policed will continue to be unfairly targeted.

“If you’re on parole and you’re arrested (for pot smoking), you immediately go to Rikers Island. . .You’re basically compounding collateral consequences on top of each other,” he said, adding that since people of color are arrested for marijuana offenses at a higher rate, the mayor’s plan directly conflicts with seeking to reduce racial disparity.

In announcing the new policy, de Blasio said he believes it will strike a balance between safety and fairness — a middle ground the mayor says he has sought for years.

The NYPD made 19,000 arrests for possession in 2017 — down 64 percent compared with 53,000 arrests in 2010, according to the mayor’s office. While 50,000 of the 2010 arrests were related to smoking in public, that specific offense made up less than 17,000 of the arrests in 2017.

Queens District Attorney Richard Brown called the policy “wise.”

“By choosing this sensible path, by which only the presence of limited aggravating factors will justify an arrest, the police department will continue to have the ability to control the activity without the majority of those committing the offenses being arrested and put through the system,” he said.

Several New Yorkers in midtown Tuesday afternoon said they believed the new policy will be helpful.

“I think it is going to take away imprisonment for a lot of people who don’t deserve to go to prison,” said Steven Alcivar, 28, of Bed-Stuy. “I think they can focus on other things they need to focus on.”

David Chametzky, 49, who grew up in Brooklyn and lives on Long Island, said he believes people should be allowed to smoke freely but also expressed concern for public safety.

“The problem is if they are on the roads. If they are walking on the street, I have no problem. Smoke away.”

The loophole of allowing police to use discretion in whether a person should be arrested, however, appears to be a sticking point for critics.

“My understanding of the new policy is explicit that police can arrest anyone as long as they can come up with some justification for it,” Encalada-Malinowski said. “They could come up to someone and say, ‘hey, put that out and move on.’ But they can also use this discretion to arrest someone who shouldn’t be arrested.”

The language used by the mayor’s office is reminiscent of discretion issues found with the now-banned stop-and-frisk policy, Buccola said.

“Historically, we find these exceptions that always defer to police to exercise their power, but how are we gauging that?” she asked. “When we default to discretion, there’s no bright-line test.

“We had it in stop and frisk and we’re going to have it here unless we recognize what actually poses a public safety risk.”

Training police officers to understand when public smoking poses a public safety risk and when it’s a case of implicit bias will be a key factor in how successful the rollout of the new policy is, according to Buccola.

With Rajvi Desai