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OpinionColumnistsMark Chiusano

Should smoking a cigarette land you in jail?

A man smokes a cigarette at a coffee

A man smokes a cigarette at a coffee shop. (June 19, 2012) Photo Credit: Getty Images

One snowy day last winter, Darrell Morrison was walking into the subway at 125th Street. He was smoking a cigarette, and before entering the station, on the last step, he stamped it out.

That’s when he saw two police officers watching him. They asked to see his ID.

Morrison, 49, asked why, and one of the officers told him that he wasn’t allowed to smoke in the transit system. Morrison said he knew that, but had put out the cigarette before he got underground. The officer told him a new law made the staircase part of the transit system.

Morrison gave the officers his ID, figuring he’d get his ticket, pay his fine. But the officer came back after running the ID, and said they had to arrest him.

At the station, Morrison was informed that he was a "transit recidivist," language in a recently revised NYPD policy by which those who have committed certain crimes or committed a number of transit violations in recent years would be arrested for future violations, not simply given a summons. The NYPD says Morrison’s problem was an arrest for robbery two years before, which led to an assault charge (Morrison says the incident was an altercation in a store). Still, he'd served his time.

So, for putting out a cigarette in the wrong place, combined with the long memory of the law concerning an earlier transgression, he spent about 48 hours in jail, losing a day’s pay at work in the process.

“It really sucked, to tell you the truth,” he says, “going through the system for something I’d already paid for.”

Observing the system

Morrison’s is one of the stories collected in a new report by the Police Reform Organizing Project, a criminal justice advocacy group.

PROP conducted a number of “court monitoring” sessions of mostly misdemeanor and violation cases starting in 2014, according to director Bob Gangi. Observing 1,880 cases in Manhattan, Brooklyn, the Bronx and Queens, PROP found that 91% of the defendants were “people of color.”

Gangi says the “vast majority” received adjournments in contemplation of dismissal — basically a warning — or received time served plus a fine or community service. Meaning, the court didn’t find it necessary to lock these people up further for public safety or the like.

PROP did not observe Morrison’s case, but Morrison approached them recently to add his experience to the list.

Morrison, who is a stagehand, grew up and lives near Lincoln Center. He said he’s “had some run-ins with the police.” His conviction records show about a dozen cases, for misdemeanors and a few low-level felonies — mostly from when he was a younger man. His life "changed a lot," he says, when he had children; he now has two daughters.

Often he felt that cops had it out for him when he was young, for being young and black — he remembers being accosted by police while trying to get on the subway once as a boy, accused of "preparing to steal a ladies purse." He said he had his coins in his hand to pay for the ride.

But history was against him on the day of that subway arrest. Any earlier transgressions were behind him, both in his own estimation and legally — sentences filled, paid fines, completed community service. “I paid my dues for all of them,” he says. Still, the past turned a cigarette toss into a ticket to jail.

The potential for change

Morrison’s experience is sadly typical: A small offense can pull an individual into the criminal justice system and impact his or her life.

Summons reforms in Brooklyn, Manhattan, Queens and Staten Island and criminal justice reform bills before the City Council, along with the NYPD’s court-mandated curtailing of stop-and-frisk, all aim to break the cycles that keep low-level offenders in the criminal justice system.

But much depends on the focus of the police department, which decides where to marshal its forces and angle its attention. That is abundantly clear from Morrison’s case: earlier this month, the NYPD began a new pilot program (confined to the MTA system) through which so-called transit recidivists are not automatically arrested for violations such as such as cigarette smoking on the subway or feet up on a seat. They’ll receive a summons. It’s too late for Morrison, but it makes one thing clear: police strategy is crucial to any reform efforts.

Morrison says he can understand police officers being vigilant in the subways — protecting against terrorists and slashers, for example. “They want to crack down on random violence,” he says, “but with that dragnet, they’re catching a lot of good people as well.”

Morrison says some common sense could be in order — searching people’s bags for weapons, feeling out the situation. Not just arresting people because it’s allowed.

The only thing Morrison has learned from the encounter? “I make it a point to put out my cigarette way before now.”

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