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The Loopholes in New York City’s Public Cannabis Smoking Policy Will Hurt People of Color

The Loopholes in NYC’s Public Cannabis Smoking Law
Photo Gracie Malley for Cannabis Now

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The Loopholes in New York City’s Public Cannabis Smoking Policy Will Hurt People of Color

Mayor Bill de Blasio has a new policy discouraging New York City cops from making arrests for public cannabis smoking. But critics say that loopholes or “carve-outs” in the policy mean that the racial disparity in marijuana arrests could continue — or even get worse.

On Sept. 1, a policy shift on cannabis arrests officially took effect in New York City, with police to now instructed to issue tickets rather than making arrests for public cannabis smoking — in most cases.

However, the racial disparity in New York cannabis arrests has persisted even as the total number of street busts has dropped. De Blasio boasted to the Daily News: “We’re committed to reducing disparity. And that is going to be ongoing.”

NYPD Chief of Patrol Rodney Harrison made a similar promise: “We are going to see a humongous drop in people in communities of color being arrested for marijuana.”

And indeed, the overall numbers did drop over the Labor Day weekend that the policy took effect. Between Saturday, Sept. 1 and Monday, Sept. 3, there were 21 marijuana arrests citywide — compared to 118 over the same period last year. De Blasio told WNYC Radio as he announced these welcome stats, “We have in fact embraced fairness, and this is what has made the city safer.”

But activists in New York City say the exceptions in the mayor’s new policy are far more significant. Some have raised fears that the stated aim of reducing racial bias may even be impossible due to these so-called “carve-outs.”

The Devil Is in the Loopholes?

There are some exceptions to de Blasio’s new directive not to arrest people for smoking cannabis in public in New York City.

The Manhattan DA will continue to prosecute when there is evidence of dealing (“possession of large quantities of marijuana individually packaged for sale”) or if the person poses a “significant threat to public safety.”

Under the mayor’s directive, police will be able to arrest people for either public smoking or just possession if the person is on probation or parole, has an outstanding criminal warrant, isn’t carrying identification or has a recent documented history of violence. Cops can still demand ID and run background checks when they make stops for public smoking, and some will be thusly subject to arrest. An arrest is also permitted if — at the cop’s discretion — the smoking is determined to pose a public safety risk. This, of course, includes smoking while driving.

Chris Alexander, a policy coordinator at the Drug Policy Alliance, spoke to Lower Manhattan’s weekly newspaper The Villager about what he sees as flaws in the new policy.

“We just know that when you leave people out like this, the people who end up getting hurt the most are people that are black and Latino, from low-income communities, are homeless, are noncitizens — the list goes on,” Alexander said.

Rebecca Kavanagh, a senior staff attorney at the Legal Aid Society, also questioned the broad discretion given cops in stops for public smoking.

“The police officer uses his or her discretion and can decide on the basis of nothing to make an arrest,” she asserted. “Whenever…someone has discretion, you’re going to have racism in the application of that discretion.”

Even the DA’s office expressed such reservations about de Blasio’s policy. Vance’s communications director Danny Frost called the mayor’s move a “welcome step,” but also warned that it is unlikely to meaningfully address racial bias in policing.

“The mayor’s policy, while laudably reducing the number of arrests for marijuana, is not likely to alleviate racial disparities,” Frost said in a statement to The Villager. “Rather, by excluding from its benefit racially disparate populations, such as New Yorkers with prior arrests, people on probation and parolees working to reenter their communities, this policy could have the unintended consequence of further solidifying the racial inequities in marijuana enforcement.”

The History of Racist Policing in New York City

A report issued by the Police Reform Organizing Project (PROP) earlier this summer found that 93 percent of New York City cannabis possession arrests during the first six months of 2018 were of people of color.

“The numbers just document in an undeniable way that the practice is racist,” PROP’s Bob Gangi told The Villager.

The Villager report broke down the racial disparity by Lower Manhattan police precincts, based on 2016 statistics. It was found to be greatest in the sixth precinct, covering the upscale West Village, where 69 percent of arrests were of blacks and Latinos — who make up just eight percent of the precinct’s residents. The ninth precinct, covering the East Village, is 31 percent black or Latino — but 82 percent of cannabis arrests there were of blacks or Latinos.

The NYPD perennially argues that cannabis arrest rates are higher in neighborhoods where complaints about public use are higher. But this doesn’t stand up, a New York Times investigation determined in May. For example, West Harlem has twice the number of Black residents as the Upper West Side, the neighborhood immediately to the south — and also had double the cannabis arrests. Yet calls to the city’s complaint and emergency lines about public smoking were the same in both neighborhoods.

Street pot busts have dropped annually in New York City since November 2014, when de Blasio instated a new policy barring arrest for possession of under 25 grams. But the racial disparity in these arrests has persisted. In 2017, a glaring 86 percent of those arrested for cannabis on the city’s streets were black or Latino.

The new policy barring arrest even for public smoking began exactly a month after Manhattan District Attorney Cy Vance implemented a reform of his own, with his office declining to prosecute for simple cannabis possession. In announcing the policy, Vance’s office said it is expected to reduce Manhattan marijuana prosecutions from approximately 5,000 per year to fewer than 200 per year — a 96 percent reduction.

‘Crew’ Raids Continue

Meanwhile, even if the pressure is to be lifted on public smoking and personal possession, the NYPD is continuing its crackdown on the city’s drug-dealing street gangs, or “crews.” The latest came Aug. 8, when 22 people were arrested on drug sale and weapons charges at the Queensbridge public housing complex in Long Island City. The suspects, all from Queens, were allegedly caught selling marijuana, cocaine and heroin in a nearly year-long investigation, according to neighborhood news site Astoria Patch.

And there have been concerns here too that the “crew” crackdown is targeting black and Latino youth in a discriminatory way — often with cannabis dealing as the ostensible justification.

TELL US, do you think police should have the discretion to arrest people for smoking cannabis in public?

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