Today's Drug War: Marijuana and Mass Arrests

“Marihuana is that drug—a violent narcotic—an unspeakable scourge—The Real Public Enemy Number One!” —Introduction to “Reefer Madness,” 1936

With drugs having, for the most part, moved off the streets and crime having reached lows not seen in this city since the early 1960s, it might be logical to think that mass NYPD drug arrests—like the nodding heroin addicts, skeletal crackheads and fullscale street-level enforcement operations—are also a thing of the past.

In fact, that is far from the case. Despite the extraordinarily low crime levels and the near total absence of drugs from the city’s public discourse these days, nearly a quarter of a million people in New York City have been arrested for drugs over the past two years.

This surge in drug arrests is unlike police operations of the past. Operation Pressure Point and the creation of TNT were highly publicized efforts amid rising violent crime to, at the very least, present the appearance of action being taken, but the latest surges in New York’s war on drugs have been waged in near silence amid an era of record low criminality. And where in the 1980s and 1990s the underlying objective was to stop the pushers of highly debilitating heroin or take down violent crack gangs, drug policing in New York over most the first decade of the new millennium has targeted people who use marijuana.

To some extent, that recent focus reflects a long-term trend in how the city has policed drugs.

The first year Ed Koch was mayor, 1978, saw 18,000 drug arrests—about as many as cops had averaged during the term of his predecessor, Abe Beame. But by Koch’s 12th and final year in office, 1989, the number of drug arrests had quintupled, to 94,000. Koch’s tenure is recalled as a time when a heroin “epidemic” gave way to a cocaine “epidemic,” which eventually morphed into the ultimate “epidemic” of our time, that of crack. That led Mayor David Dinkins to promise an even tougher approach on drug crime. During Dinkins’ one term in City Hall, cops made fewer overall narcotics arrests but more arrests for top-level drug charges than under any mayor before or since. But six months after he moved into Gracie Mansion, Dinkins was forever—and some think unfairly—stamped as soft on crime by the unforgettable New York Post headline “Dave, Do Something!” as homicides hit a record 2,262 in 1990. Crime began to fall during the remainder of Dinkins’ term, as his administration implemented the Safe Street, Safe City program to increase the manpower of the NYPD. But the 1993 election ushered in a drastically different strategy for fighting crime in general and the war on drugs in particular.

Mayor Rudolph Giuliani’s drug strategy resulted in approximately 886,000 people being arrested for drugs during the eight years he was in charge, an astounding average of nearly 111,000 per year, or more than 300 a day. The cornerstone of that drug policy was the use of sweeps that focused on streetlevel users, which was consistent with Giuliani’s belief in the “broken windows” theory—that if the police ignore smaller crimes, it leads people to commit bigger ones down the road. A full third of those drug offenders arrested during Giuliani’s years as mayor (almost 295,000 people) were charged with the lowest-level narcotics crime, criminal possession of a controlled substance in the seventh degree, a misdemeanor, for having very small amounts of drugs. And during Giuliani’s second term, the NYPD began mass arrests of marijuana users, nabbing some 160,000 for the lowest-level marijuana crime—criminal possession in the fifth degree, also a misdemeanor.

Given the current crime trends and recently passed changes in drug laws, Giuliani’s legacy is probably safe as the mayor whose police department locked up the most New Yorkers for drug offenses in a single year. But should Michael Bloomberg win a third term, the distinction of running the administration that locked up the most total drug offenders will undoubtedly belong to him—a leader who enthusiastically admitted before being elected that he himself had inhaled.

“You bet I did,” he proclaimed. “And I enjoyed it.”

So do a lot of people. According to the U.N. Office on Drugs and Crime’s 2008 World Drug Report, “The consumer market for cannabis dwarfs those for the other drug groups.” It estimated about 166 million people worldwide, roughly 4 percent, use marijuana. In North America, the report states, the estimates are that as much as 10.5 percent of the population smokes pot. New York health officials say a recent conservative estimate was that 6.8 percent of city residents aged 12 or older—or about 416,000 people—are regular marijuana users.

The number of admissions to drug treatment programs by people listing marijuana as their primary addiction has risen astronomically in the city, from 1,374 in 1991 to 17,323 in 2007, an elevenfold increase. “Marijuana continued to be widely available and in high demand,” according to OASAS’s 2008 report.

Mexico leads the world in marijuana production, with most of it being grown and cultivated on the Pacific coast, followed by the U.S. and Canada, according to the World Drug Report. The DEA says pot is cheaper now that it was a decade ago. Drug dealers pay between $400 and $1,500 a pound these days compared with $900 to $1,800 in 2000. However, hydroponic marijuana—highly potent weed that is grown indoors using semi-sophisticated water, lighting and fertilizer systems—sells for up to $7,000 a pound. According to OASAS’s Street Study Unit, most people buy pot by the ounce, paying $65 to $125 for commercial weed and $300 or more for an ounce of “hydro.”

But the ready availability of pot did not make it an obvious focus of city policy eight years ago, when Bloomberg took office months after the Sept. 11 attacks, when terrorism and the budget gap were the city’s top concerns. Crime appeared to be well in hand. The number of murders was the lowest it had been in the city since 1963, and New York had the lowest overall crime rate of any of the country’s large cities. Over the past seven years, the crime rate has continued to drop in each successive year.

Still, despite the fact that the number of NYPD police officers was down 5,000 from just a few years back and while a significant number of cops have been diverted to anti-terrorism duties, statistics show that locking up drug addicts and low-level dealers has been a top priority of the NYPD and Bloomberg’s police commissioner, Raymond Kelly. 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.