Marijuana Decriminalization Won’t Kill Discrimination

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New York Mayor, Michael Bloomberg, said something very interesting last week about Gov. Andrew Cuomo’s efforts to decriminalize the public possession of marijuana. With respect to the NYPD’s controversial stop-and-frisk practices, Bloomberg said that decriminalization would “certainly end some of the objections.”

It’s an odd turn of phrase, whether Bloomberg put much thought into it or not, to state that a measure would “end objections” as opposed to, say, fix problems.

However, in the case of the decriminalization proposal currently on the table in the New York state house, Bloomberg’s comment may have been spot on; the proposal to decriminalize the public possession of small amounts of marijuana risks ending a number of objections to the NYPD’s stop-and-frisk practices, without properly addressing the racist skew of the policing tactic and the damage it can wreak on the lives of those it targets (namely young black and Latino men in primarily poor neighborhoods). More troubling still, decriminalization as it is currently proposed could lead to even less transparency and accountability when it comes to NYPD practices.

Across the United States, marijuana policy reform is gaining momentum on state-level legislative agendas. In New York, where low-level marijuana arrests constitute one in every seven arrests made, the proposal to decriminalize public marijuana could lessen the harm done to the lives of those consistently stopped, frisked and deemed criminal by the NYPD. When you dig into the details, however, it seems that decriminalization could be little more than a Band-Aid over the bullet wound of racist police practices.

Cuomo’s proposal responds to one of the major criticisms leveled against stop and frisks: that the NYPD quite literally forces individuals to commit criminal offenses relating to marijuana. Police officers regularly compel the subjects they stop (85 percent of whom are black or Latino) to empty their pockets. In New York, it is currently a violation, but not a crime, to possess a small amount of marijuana privately. If the drug is brought into public, however, this becomes a crime (a misdemeanor). So, when the police instruct subjects to empty their pockets during stops (or, as has often been reported) illegally reach into subjects’ pockets to pull out small amounts of marijuana, the subject now faces criminal charges because police action has brought the drug into public.

As such, the decriminalization proposal, if passed, would stop the direct creation of criminals through stop-and-frisks as described above. The plan is to make the possession of less than 25 grams of marijuana in public a violation (as in the case of private possession) and no longer a misdemeanor, so no longer a criminal offense. Police would then issue a summons for the violation, but the subject would not face arrest, fingerprinting, photographing and the lifelong burden of criminal charges.

The NYPD made 50,864 low-level marijuana arrests in 2011: 82 percent of the arrestees were black or Latino. Were decriminalization to go through (which alone involves a long, difficult political battle), thousands of young black and Latino New Yorkers stopped by police might at least not face the immediate punishment of an arrest record for possessing a small amount of pot. This would take a significant punitive sting out of stop and frisk and its racist bent.

The key thing to understand about the proposed decriminalization is that it moves low-level marijuana possession from a misdemeanor to a violation. So, what happens with a violation? Harry G. Levine, professor of sociology at Queens College CUNY and long-term researcher into marijuana arrests, points out that violations are regularly mischaracterized by those with little experience of New York’s penal system.

“People say, ‘Oh, a violation, that’s just like a traffic ticket.’ It’s not like a traffic ticket,” Levine told me in a phone interview. “It’s what I’d call a ‘misdemeanor lite.'”

Levine explained the swift (and common) way in which violations become criminal charges. If an individual is charged with a violation by a police officer and issued a consequent summons, the person is required to appear in court on a certain date and likely pay a fine. (The fine for the noncriminal violation of marijuana possession as a first-time offense in New York is currently “no more than $100”). However, if you fail to appear in court on the required date, or if you show up and wait in what are often hours-long lines, but have to leave before your name is called (perhaps because of childcare or work commitments), or if you fail to pay a fine by the required date, then a court-ordered arrest warrant (a “bench warrant”) is issued and entered onto the NYPD database. Then, if you are stopped by the police again, you will face arrest and a criminal record.

“The summons system can produce some of the same consequences as the arrest system,” noted Levine. But perhaps most crucially, there is currently no way of knowing precisely how often summonses turn into criminal charges because of bench warrants – the data is simply not available.

Long-term cannabis hemp activist and Occupy supporter, Ergoat Oneiric, has personally experienced how even noncriminal low-level drug charges can haunt lives. Oneiric lived in Maine, which was one of the first states to decriminalize the possession of a small amount of marijuana back in 1999. Oneiric was stopped and searched by local cops and found with a pipe – he was ticketed for carrying “drug paraphernalia.”

“I never was given a court date, so assumed they threw out the case or even dropped charges. Years later, I was told I was fined and they suspended my driver’s license for not paying a fine I never knew about,” said Oneiric, who now lives in California and is still not allowed to drive. He adds that a friend of his, who was given a citation for possessing a tiny amount of marijuana, lost his federal financial aid to the University of Maine and so had to drop out because of the (noncriminal) charge. “This is the ‘freedom’ decriminalization brought to Maine,” Oneiric said, calling decriminalization only a “minor appeasement.”

The New York State Division of Criminal Justice Services (DCJS) collects and makes publicly available data about criminal arrests in the entire state. However, no such data is compiled regarding noncriminal violations. Criminal arrest data includes demographic information, such as the race of the arrestee; no such information exists for summonses. “The summons system is quite subterranean,” said Levine, noting that for some years he has unsuccessfully sought data on how many noncriminal violations lead to criminal charges through bench warrants.

Levine added that without legislative or policy reform to make marijuana possession summonses traceable, this lack of data will prove a “huge problem.” Given that issuing summonses (essentially writing a ticket) takes up considerably less time and resources than actually bringing someone to a precinct for a criminal arrest, police could write thousands more summonses for marijuana possession, potentially widening the net of those who have to face the criminal justice system. Stop-and-frisk practices can remain as discriminatory as ever, with even less data available to prove it.

“There needs to be a conversation about what decriminalization means,” said Levine, noting that there are growing examples around the country of bad decriminalization with high fines, which go directly to the city and the police – thus incentivizing cops to write more summonses. In different states, counties and cities, police departments handle marijuana arrests in different ways; across the country, however, with or without decriminalization, racial discrimination prevails despite government statistics showing that white young men use marijuana more than any other demographic.

Levine quips all too seriously that “good decrim.” would mean that everyone was treated like most white upper-middle class people with regards to marijuana (“they don’t get arrested, ticketed, or fined”). Which drives home the perturbing accuracy of Bloomberg’s comment on decriminalization and stop and frisks. Decriminalization might “end some objections,” but it won’t stop systematically racist policing.