As a public defender, I’ve grown all too accustomed to hearing promises of progressive criminal justice reform from mayors and district attorneys, only to witness the startlingly different realities in court. I was disheartened, but not at all surprised, to read the new report by the Drug Policy Alliance (DPA) and Marijuana Arrest Research Project highlighting the shameful degree of racial disparity in NYPD marijuana arrests during Mayor Bill de Blasio’s first three years in office.
Between 2014 and 2016, despite the Mayor’s pledges to reform the NYPD, reduce inequality, and end marijuana arrests for the good of the city and its marginalized communities, there were over 60,000 arrests for low-level marijuana possession, 86% of which involved black and Latino individuals. Although government surveys show that white people use marijuana at equal or higher rates, in 2016, the NYPD arrested more black people for marijuana use in Manhattan alone than whites in all five boroughs, combined. And remember: Most Americans support full legalization of marijuana. No arrests, no fines, nothing.
From my vantage point, however, this is not just a policing problem. This is not just a failure of leadership from the Mayor’s office. This is also, significantly, a prosecutor problem. Let me explain.
Most New Yorkers, most Americans, are unaware of the enormous and unique degree of power that prosecutors wield to drive virtually every aspect of our criminal legal process. Prosecutors decide whether to charge, what to charge. Prosecutors decide whether to request bail that will trap someone on Rikers Island until their case is over, whether to allow a plea to a lesser charge, when and which evidence will be shown to the defense, and, ultimately, whether to demand imprisonment or show mercy.
That initial charging decision though—what scholars refer to as prosecutorial “gatekeeping power”—is perhaps the most critical of all. Saying no can save a person from the stigma and damage of an unnecessary prosecution, but it can also send a powerful message.
When it comes to marijuana arrests, given what prosecutors know about the decades of racial disparities and the serious, lasting harm of unnecessary police interactions, they have the power and duty to challenge these practices and reverse these trends by closing those gates. Declining to prosecute these arrests would send the message: this is wrong. This is not justice. Yet far from doing so, district attorney’s offices propel marijuana arrests forward. They enable them.
In court, both public defenders and prosecutors bear witness daily as black and Latino New Yorkers are churned through the system: stopped and frisked, cuffed and ripped from their communities, detained in putrid conditions, then led into the courtroom where they are assigned bar codes and have their retinas scanned. When I meet my clients, they tell me about illegal searches by the police. They express fears of missing or losing work, getting kicked out of school or losing student loans, leaving those in need of caretaking without caretakers, and ending up on ICE’s radar, whether documented or undocumented. They’re terrified.
All of this for simple possession of marijuana. It’s dehumanizing. It’s unnecessary. It’s unfair.
Yet once in court, after formally charging someone, prosecutors don’t seem to care about marijuana either. They acknowledge the arrests are ridiculous. I’ll often ask prosecutors at arraignments: “Why are you even prosecuting this?” “Where are all the white people you know as well as I do that smoke?” “Why don’t you just dismiss?”
Their response: “Relax. They’re all going home today anyway, whether they’re white or black.”
This flippant response is at least partially true: Despite the enormous human and fiscal costs of bringing people into the system, whether you’re white or black or it’s your first arrest or your 50th, marijuana prosecutions almost always end the same day they begin. With offers of ACDs (i.e., cases stay open for up to a year after which they automatically get dismissed), offers of pleas to non-criminal violations, or worst case scenario, a plea to a misdemeanor crime with no jail time, the cases are very often over and done just as soon as they start. These dispositions are not without significant harms: high mandatory surcharges, an addition to a criminal record, or an open criminal charge during the duration of the ACD. But my clients do walk out the door.
The Brooklyn DA’s office recently pointed to evidence of relatively small racial discrepancies in the ultimate outcomes of marijuana cases just described as evidence that those prosecuted are “treated fairly and equitably.” This response brazenly passes the buck. Ultimate outcomes notwithstanding, prosecutors cannot so easily absolve themselves of complicity by ignoring the extraordinary racial disparities in the arrests that the NYPD first hands to them.
The way in which prosecutors treat these already-charged cases in court expresses the value judgment that these marijuana arrests are, well, valueless. Yet in making that initial decision to prosecute, district attorneys and their prosecutors choose to rubberstamp the racially disparate and damaging practices of the NYPD. And then by offering plea deals and dispositions too good to pass up on that first day, they insulate the NYPD from accountability by preventing victims of unconstitutional police practices, bad stops and frisks, and illegal arrests from challenging police misconduct in court. Forget hearings where I could cross-examine that police officer. The criminal court case is over. Forget federal lawsuits: the dispositions erect legal barriers to most civil rights litigation.
Ultimately, marijuana possession is just one of many low-level offenses disproportionately enforced against people of color. As the most common arrest across the country, and the fourth top arrest in New York City, however, eradicating marijuana possession arrests and prosecutions is one simple and urgent way to meaningfully reform our criminal legal system and begin to repair the harm already done.
My organization, Brooklyn Defender Services, is proud to support DPA’s Start SMART campaign to legalize and regulate sensible access to marijuana and economically empower the individuals and communities most harmed by the drug war. In addition, all candidates should be required to answer the questions: Will you stop prosecuting marijuana arrests? Will you stop rubberstamping racist NYPD policies? Brooklyn and Manhattan both vote on September 12 of this year.
People really need to vote in district attorney elections. They’re vitally important, and no one knows how much they matter. I also invite you to come to court, which is open and public, and bear witness to the injustice. Come find my colleagues and me every day at Brooklyn Criminal Court at 120 Schermerhorn Street. In the meantime, prosecutors have the power to decline to prosecute these arrests. In the interest of justice, they must.