A senior law enforcement officer on our western border has raised an issue that needs to be addressed by the Nassau County District Attorney and prosecutors across the state.
Brooklyn District Attorney Kenneth Thompson reportedly sent a memo to the NYPD saying that his office will not prosecute arrests for possession of small quantities of marijuana. He argued that these prosecutions criminalize too many young people of color. NYPD Police Commissioner William Bratton responded that his officers will continue to make arrests for even small amounts of pot.
Where do District Attorney Kathleen Rice and the acting Nassau County police commissioner stand on this issue?
Nassau County defense attorneys say arrests for even small amounts of marijuana remain common.
As defined in NY Penal Law 221.05, Unlawful Possession of Marijuana, less than 25 grams, is considered a violation. It can still result in an arrest, even though these arrests are very often dismissed before coming before a judge.
Under NY Penal Law 221.10, the Criminal Possession of Marijuana in the 5th degree, a defendant can be charged with this crime if he or she is found to be in possession of marijuana that is burning in public, and in plain view. This is a B misdemeanor offense. If the amount found is between two and eight ounces, the charge goes up to an A misdemeanor.
The ACLU claims that of the 8.2 million marijuana arrests between 2001 and 2010, 88 percent were for “simply having marijuana,” not for possession with intent to distribute. And according to the NYCLU, blacks are four-to-five times more likely than whites to be arrested for marijuana possession.
The arrests can have a devastating impact on a young person’s life. What do they answer on a college or employment application when the question comes up: Have you ever been arrested?
Add to this, as Thompson did, is the enormous amount of money and time wasted prosecuting these violations and misdemeanors. Each year Nassau County spends hundreds of thousands of dollars on the paperwork resulting from such arrests.
Do these arrests make the county safer? Probably not. Are they worth the expense? Definitely not. Do the laws create an opportunity for everyone from low-level pot dealers to organized crime that brings large quantities of marijuana into the country? Of course they do.
The comparison is often made between the marijuana laws and prohibition which, like the pot laws, was a complete failure. Those who advocate the legalization of the sale and use of marijuana, including a former New York City comptroller, argue that the state could make millions of dollars in sales taxes and, at the same time, cut organized crime out of the picture.
Perhaps most important, legalization would reduce the likelihood that hundreds of young people in Nassau County will face their first arrest.
Can a prosecutor and police commissioner decide which state laws they will enforce? Of course, they do it all the time. Rice and the interim police commissioner must decide on a coherent policy for dealing with the possession of small amounts of marijuana. Then, like Thompson, they need to find the courage to make that policy public.
Eventually the state Legislature and governor will decide if the time has come to rewrite the state’s marijuana laws. Already 15 states have legalized the use and sale of marijuana for medical purposes. There are estimates that more than 100,000 New Yorkers with serious medical conditions would benefit if medical marijuana were legal. This includes 88,000 suffering from chronic or severe pain.
The state Assembly has already passed the Compassionate Care Act, which if approved would tightly regulate the dispensing and usage of medical marijuana in New York but the Senate has yet to consider it.
Even if the law changes and marijuana becomes legal for medical and entertainment purposes, police could still arrest anyone caught driving under the influence of marijuana, just as they arrest drunk drivers and those under the influence of prescription drugs.
But until the law changes, police in Nassau County should not be putting the cuffs on young people found carrying a joint.
