Gotham Gazette

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While Waiting on the State, Steps on Marijuana for the Mayor and NYPD

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(Photo: Michael Appleton/Mayoral Photography Office)

Smoking marijuana in public will only be legalized if the New York State Assembly and Senate – huffing and puffing – change the penal law.

With no change, the real problem in New York City is the collateral consequences – past, present, and future – arrests for marijuana cause thousands of black and Hispanic New Yorkers disproportionately impacted by the NYPD’s approach. These consequences include issues when applying for a license or job, or leading to deportation proceedings as mandated by President Trump’s onerous immigration executive order.   

These consequences could start to be mitigated if Mayor Bill de Blasio will “tell” – actually order – his police commissioner not to make misdemeanor marijuana arrests and instead directs the NYPD to issue a non-criminal summons when marijuana is smoked publicly. Additionally, de Blasio must enlist all five of the city’s district attorneys to decline criminal marijuana prosecutions – only the Manhattan and Brooklyn D.A.s have taken up this policy.  

If the NYPD submits, a misdemeanor marijuana arrest will virtually be eliminated as a criminal charge, fingerprints will not be taken, nor sent to the FBI. For a non-criminal summons a fine can be paid by mail. This process would in essence decriminalize marijuana.  

The proposed mayoral no-arrest policy – guaranteed to cause consternation at the NYPD’s highest level – will generate a reflex response that not making marijuana misdemeanor arrests is inconsistent with enforcing the law and it is Albany’s responsibility to change the law.   

As he assigned a 30-day review of marijuana enforcement, de Blasio’s hopeful statement, “I respect the NYPD, which has proven the ability to innovate to come up with the how. I have a mandate for them, I’m convinced they will figure out how to act on it,” is unrealistic.

The mayor cannot really believe that the NYPD will voluntarily recommend “innovative” ideas – in 30 days – or significantly change its crime strategies of stopping, frisking, seizing marijuana, and arresting a person for smoking it in public, after 50-plus years of no progressive ideas for how to effectively address this issue.  

The NYPD’s hazy and quick response after de Blasio’s announcement is hardly encouraging, “The (NYPD) 30-day Working Group on marijuana enforcement is underway, and this issue is certainly part of that review.  The Working Group is reviewing possession and public smoking of marijuana to ensure enforcement is consistent with the values of fairness and trust, while also promoting public safety and addressing community concerns.”

There was a sleight of hand NYPD “reform” concerning marijuana arrests to ease the public pressure when stop-and-frisks were at all-time highs.

Since 2013, the NYPD, instead of criminally processing a person arrested, has often given a Desk Appearance Ticket – a misdemeanor criminal summons for public smoking – after a person is arrested, photographed, and fingerprinted, if there is no outstanding warrant for that person’s arrest.  The only real DAT benefit is the person is not incarcerated for 10 or 20 or more hours waiting for a criminal court arraignment.

Annually, more than 15,000 individuals were arrested and charged with a misdemeanor, overwhelmingly receiving a DAT for smoking pot in public, and approximately 30,000 non-criminal summonses were issued for pot possession.  

For these 45,000 New Yorkers and the hundreds of thousands before and after them, the collateral consequences for arrests and even for non-criminal summonses continue.   

While legalization is debated the Legislature and the Governor must immediately enact an exemption to state law that currently mandates fingerprinting a person arrested for criminal possession of marijuana.

The Legislature and the Governor must specifically exclude from disclosure any pending or adjudicated marijuana arrest or non-criminal summons issued or asked about in any employment application for public service, a license or to obtain any public benefit.

While the mayor, the governor, and the Legislature dither about the legalization of marijuana, it is time for the mayor, after four-and-a-half years in office, to lead – and drag the NYPD along – to eliminate marijuana arrests, which will start to end the collateral consequences.  

Arnold Kriss is a Manhattan attorney who formerly served as a Brooklyn Assistant District Attorney and Deputy Commissioner of Trials in the NYPD.

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