The racial reality of marijuana arrests

Volume One, Issue 30, April 13 - 19, 2007

Talking Point

By Nathan Riley

Since Mayor Rudy Giuliani’s era began in 1994, New York City has aggressively enforced the prohibition against MPV — law enforcement shorthand for Marijuana in Public View. Although it is the lowest level crime — a B misdemeanor — smokers are arrested, fingerprinted, detained for hours (that is, jailed!) before they are brought before a judge, at which time they are routinely released.

That harsh approach reflects the broken window theory of law enforcement by which the active pursuit of minor infractions is presumed to produce larger benefits in terms of crime control and reducing behaviors offensive to the public. Under this policy, MPV had become by 2000 the most common misdemeanor arrest, “accounting for 15 percent of all NYC adult arrests and rivaling controlled substance [harder drug] arrests as the primary focus of drug abuse control,” according to a new report by the highly regarded National Development and Research Institute, which is better known by its initials NDRI. This latest is the third study on the subject that it has released since its investigation started in 2005.

The researchers, led by Andrew Golub, a principal NDRI investigator, have meticulously gathered data including accessing the sealed criminal records of persons whose cases were dismissed. For these cases, the personal identifiers were redacted, but the investigators could learn where these individuals were arrested and whether they were detained for arraignment. Then using sophisticated regression techniques, they were able to compare the punishment imposed on whites, blacks, and Latinos.

The NDRI article in the current issue of Criminology and Public Policy concluded that “most MPV arrestees have been black or Hispanic. Furthermore, black and Hispanic MPV arrestees have been more likely to be detained prior to arraignment, convicted, and sentenced to jail than their white counterparts.”

What makes this study, “The Race/Ethnicity Disparity In Misdemeanor Marijuana Arrests In New York City” particularly important is the solution it offers. Marijuana arrest policies can be changed without abandoning quality of life policing. Moreover, the painstaking documentation of harsher treatment and adverse impact on young black and Hispanics creates an obligation to change the policy, according to Golub.

“Now they know,” he said.

“The NYPD should adjust its policies,” Golub argued. “Ignoring the disproportionate impacts on young blacks and Hispanics by not adjusting the policy is denying the importance of strong race relations in the city. Now that the police department knows about this impact, they don’t have to arrest and detain these people.”

The study recommends handling this problem with Desk Appearance Tickets (DAT). MPV offenders should just receive a ticket and return to court at a later date. The article explains that “ending the disparities associated with MPV arrests would increase the level of justice.” It would as well “help the NYPD’s relationship with the black and Hispanic communities.” And it would help these young adults in “their efforts to maintain productive lives by not burdening them with criminal records.”

Moreover, since processing a DAT is simpler, police resources could focus on other priorities. MPV arrestees would no longer end up in the central arraignment facilities, thereby “eliminating one of the substantial race/ethnicity disparities. No longer would the vast majority of the minority MPV arrestees be ‘doing their jail time up front’ before ever getting in front of a judge.”

The old DAT system was discarded because so many people ignored the tickets and never showed up — the police gibed they were “disappearance tickets.” But recent technological changes make such a cavalier response less likely. Fingerprints are done digitally and a record search can be completed quickly. Anybody who ignored their first DAT would appear in the records and could be held. Those arrestees who answered their ticket and had their case dismissed would have their record sealed. Thus a substantial incentive would exist for people to answer their DATs — they would get no record and they would not go to jail.

The study calls for a reduction in the intensity of MPV patrolling. When the program started in the 1990s, the arrests were focused in Manhattan south of 96th Street, the central core visited by hundred of thousands of people every day, many of whom were purported to be offended by pot smoke, XXX porn shops, and other evidence of disorderly behavior. But “since the mid-1990s and into the 2000s most MPV arrests have been recorded in higher poverty, minority communities outside” the central core. Enforcement jumped in public housing projects where an arrest can lead to an eviction—a horrifyingly draconian punishment for smoking a joint.

Golub writes this geographical shift in enforcement “suggests that smoking marijuana in public may have been brought under control in highly public locations.” Should enforcement be confined to the central core, it would result in a dramatic decline in the number of MPV arrests.

But the report goes further than merely suggesting changes in enforcement techniques; it recommends that the criminalization of MPV be eliminated outright. Possession and smoking of a small amount should not be a crime, but a violation. Most criminal statutes apply inside the home and outside. It is unusual to have one law in the home and another outside it. The governor and the Legislature would have to amend state law to create this policy change.

The most interesting recommendation out of NDRI is that the city be monitored for evidence of public marijuana smoking and the public be asked if they are offended. It wouldn’t surprise me if very few people are in fact bothered.

Given the evidence uncovered by NDRI, continuing the current approach toward enforcement would seem to be of dubious legality. The city now knows that its policies have dramatically disparate effects on whites and minorities. New York City shouldn’t burden minority residents with unnecessary arrests and punishments. Life is hard enough; we don’t need to make it harder.