New York police officials have distanced themselves from a tactic that nabbed small-time pot users who obeyed cops who asked them to empty their pockets.
By moving their stash from pocket to plain view, the users committed a crime, and could be arrested. It's unclear how often the approach was employed, but it came amid a huge spike in arrests in New York City for the lowest-level offenses involving marijuana. And regardless of how frequently police used it, the ploy contradicted the spirit of a 1970s New York State law that decriminalized the possession of small amount of marijuana.
Last week, Police Commissioner Ray Kelly issued a departmental order prohibiting the practice.
City Limits first reported on the pot trick in our 2009 investigation of the city's drug war, in which author Sean Gardiner devoted a chapter to the huge increase in marijuana busts under Mayor Bloomberg. Below is an excerpt:
From 2002 through 2008, 703,732 people were arrested on drug charges in the city, or about 100,500 a year, according to statistics obtained from the state's Division of Criminal Justice Services.
Whereas the NYPD under Giuliani specialized in targeting those addicts possessing a tiny bit of cocaine, heroin or other narcotics, Kelly's NYPD has specialized in zeroing in on marijuana—and on arresting people for the least serious criminal marijuana offense on the books.
Between 2002 and 2008, 261,151 New Yorkers were arrested for possessing marijuana. That works out to more than 37,000 per year or 100 per day. Of that amount, an astounding 252,485 (or almost 97 percent of all marijuana possession arrests) involved the lowest marijuana offense in the penal code, the misdemeanor of criminal possession in the fifth degree.
What could make this policing strategy especially disturbing, according to Harry Levine, a sociologist at Queens College who has published a study on marijuana arrests in New York City, is that many of the people arrested for that misdemeanor charge over the past 12 years probably didn't commit any crime.
The state's Marijuana Reform Act of 1977 made possession of up to 25 grams of pot a noncriminal violation, akin to a speeding ticket, punishable by a summons and a fine of up to $100 for a first offense. Levine says that reform law was passed after parents—whose "white, middle-class college kids upstate" had been busted and were facing criminal records—started a campaign to decriminalize small amounts of marijuana.
So from 1977 on, if police found less than 25 grams of pot (about 25 to 50 joints' worth) in a person's pocket, it was a noncriminal violation—not a crime. But last year, NYPD cops arrested 40,384 people for the crime of marijuana possession in the fifth degree. At the same time, they only issued 695 summonses for all narcotics violations, according to the Mayor's Management Report.
Why so many arrests despite decriminalization? Officially, after the 1977 law, there were only two ways to be busted for the crime of possession of marijuana in the fifth. You could be caught with more than 25 grams but less than the two-ounce threshold for a more serious marijuana charge. Or you could possess a small amount of marijuana but be seen "burning" it or displaying it "open to public view."
Levine's study offers another explanation: "Police have invented this trick so they can skirt the law. They stop you and they know they're not supposed to be going in your pockets without probable cause. [But] they say, ‘We're gonna have to search you, go through all your pockets. If you have anything you're not supposed to have, take it out and show it to us,' and they promise if it's not too bad, they'll let them go. Almost everyone will pull out their joint or small baggie of pot." But by pulling the marijuana out of their pocket to show the officer, the person has gone from a violation to committing a crime, because they have unwittingly put the pot into "public view."
This tactic does not uniformly affect New York's pot smokers. According to Levine's study, which used data from the state, 52 percent of people arrested in the city for possession of marijuana in the fifth degree were black and 31 percent were Hispanic, while just 15 percent were white, despite the fact that national drug surveys show that whites smoke marijuana at higher levels than members of other races.
While the number of drug arrests has remained sky-high, the type of low-level arrests that have become common under Bloomberg have not taken drug addicts and dealers off the streets for very long. Because the majority of people arrested on drug charges in the city are booked on the lowest misdemeanor offense, the only jail time most do is in the lockup awaiting arraignment.
So if this policing strategy isn't actually getting drug users and dealers off the street, what's the point of making so many low-level arrests? In his study, Levine speculates that low-level drug arrests allow police supervisors to document productivity while giving cops the chance to book overtime or, if they're rookies, on-the-job training without exposing themselves to unnecessary risk. It also allows the NYPD to acquire information on people—getting their photographs, fingerprints and, increasingly, DNA samples into databases to be used to solve future crimes.
"The irony is, as crime has continued to fall, arrest numbers have continued to rise," says Robin Steinberg, executive director of the Bronx Defenders, who reports that her organization has defended an increasing number of people in recent years who have been arrested for petty drug crimes. "What you're seeing is policing of poor communities of color in New York City that targets misdemeanor and nonviolent crime." She adds, "We see an infinitesimal number of cases where you would see any evidence that this person was a real dealer."
Paul Browne, the NYPD spokesman, did not respond to requests for comment or to provide information about the department's current policing strategy and philosophy. When stories were printed about Levine's study in April 2008, Browne said that crime in the city had declined about 60 percent over the 19-year period that Levine cited. "Attention to marijuana and lower-level crime in general has helped drive crime down," Browne contended. He also attacked Levine as being "an advocate for marijuana legalization" and a dupe of the New York Civil Liberties Union, which sponsored the study.
"Smoking marijuana in public does contribute to a sense of a neighborhood veering toward being out of control, where you have public disregard for the law," says Heather MacDonald, a fellow at the Manhattan Institute. "There is an argument for being concerned about open marijuana use."
If Browne's assertion is correct, however, that the mass marijuana arrests are a driving factor behind the decline in citywide crime, the NYPD and mayor have kept curiously quiet about it. All told, drug arrests have accounted for fully a third of the 2.1 million arrests made between 2002 and 2008. Yet no "attaboy" press conferences were called by the NYPD or mayor to talk about the strategy; no praise was given to the anti-narcotics units for their contribution to the overall crime reduction. In fact, on the NYPD's CompStat sheets, which track the city's crime rate, there are no categories showing any NYPD narcotics statistics, such as arrests or seizures, nor is the narcotics unit even mentioned on the NYPD's official webpage. In his annual budget statement to the Council this year, Commissioner Kelly didn't mention drugs.