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Pot Possession and the Police

Written by Heather Mac Donald

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City Journal
Reforming marijuana laws is one thing; demonizing the NYPD is another.

New York governor Andrew Cuomo has introduced a bill into the state legislature that drastically reduces the penalty for the public possession of small amounts of marijuana. The law represents Cuomo’s entry into an escalating controversy over the New York Police Department’s stop-and-frisk practices: anti-cop advocates charge that racially biased stop-and-frisks are producing racially biased marijuana arrests. Neither charge is true, and Cuomo’s failure to say so has done the city a disservice.

Nevertheless, Cuomo’s bill is a change the city can live with, one that may even produce public-safety benefits. Predictably, however, the NYPD’s opponents have already made clear that the proposed marijuana law will have no effect on their crusade to decimate proactive policing once and for all.

Until now, New York’s marijuana laws have made the following distinctions: possession of less than 26 grams of marijuana (7/8th of an ounce) was a violation, subject only to a summons and fine—so long as the marijuana was out of public sight. (“Violations” are not “crimes” under the state penal code, though they are still illegal.) Smoking marijuana in public, however, or possessing a small amount in public view was a misdemeanor crime for which the offender could be arrested. This distinction was a reasonable accommodation with the pro-legalization movement. It recognized that the public consumption or purchase of illegal drugs should be punished more heavily than private consumption, since the public flouting of the law is a greater threat to neighborhood order than private disobedience.

A sociologist at Queens College, though, has been promoting the idea that New York police officers deliberately use two illegitimate measures to jack up their arrests of young black and Hispanic males for public marijuana possession. In the first method, according to Professor Harry Levine, an officer somehow persuades young black and Hispanic males to take their concealed marijuana out of their pockets and display it in public in order to arrest them for public possession. In the second, an officer uncovers marijuana on a minority male in the course of a stop-and-frisk search and then makes a public-possession arrest. Such an arrest would not be legitimate: possession of less than 26 grams of marijuana, discovered during a search, is a violation punishable by a $100 fine. It is not a misdemeanor.

Levine and his fans at the New York Civil Liberties Union and the New York Times have little data to support their allegation that officers have been engaging in the wholesale, unlawful arrest of blacks and Hispanics for small amounts of marijuana that only became public because of a search. The only statistic they can point to is the rise in marijuana possession arrests over the last 15 years. But the data do not even show that most of those possession arrests were for small amounts of marijuana, much less that the arrests were made because the police, in Levine’s words, “intimidated or tricked” minority youth. Most of the 300,000 or so arrests for marijuana possession from 1997 to 2006 that Levine criticizes were for smoking in public or for possessing amounts ranging from 25 grams to 8 ounces. Only about 500 to 1,000 people were arrested annually over that period for public possession of under 26 grams.

Levine’s charge that the police have been arresting young minorities in large numbers for public possession of marijuana revealed through a search rests ultimately only on the uncorroborated claims of Legal Aid Society attorneys and public defenders. The allegation has nevertheless become gospel truth in anti-cop circles. In response to the activists’ pressure, Police Commissioner Ray Kelly circulated a departmental memo in September 2011 reaffirming the existing law: that less than 26 grams of marijuana discovered during a search did not constitute an arrestable crime. Legal Aid’s Steve Banks and drug-legalization advocate Ethan Nadelmann hailed Kelly’s memo as a major change of departmental rules, though it only restated longstanding policy.

Marijuana possession arrests dropped by nearly a quarter after Kelly’s memo, according to the Times; how much of that drop occurred because some officers had in fact been making public-possession arrests after a search and now were no longer doing so, and how much was because the controversy regarding the issue had simply inhibited drug enforcement, is impossible to say. But any possession arrests that had been mistakenly made as a result of a search would never have been prosecuted, pace the advocates, nor would the arrest appear on someone’s record. And the idea that the NYPD had a de facto policy of illegal arrests, or that officers set out to ruin minority lives, as City Council grandstanders have charged, is of course preposterous.

Cuomo’s proposed law makes the public possession of less than 26 grams of marijuana a violation subject only to fine, not arrest—in effect, decriminalizing it. It would continue to allow the misdemeanor arrest of people smoking marijuana in public, which is why Commissioner Kelly and New York City mayor Mike Bloomberg support it. (By contrast, a bill proposed by Brooklyn assemblyman Hakeem Jeffries and Buffalo state senator Mark Grisanti would demote public smoking to violation status as well.) As a backstop to the existing law regarding marijuana discovered during a search, Cuomo’s bill is clearly unobjectionable. The judgment is only slightly more difficult regarding marijuana observed on the street. Under Cuomo’s revision, if someone is holding a joint weighing under 26 grams, but not smoking it, or even if he has just purchased that joint from a dealer, he can henceforth only be issued a summons, and cannot be arrested. (The person selling to him, however, can be arrested. In practice, drug enforcement rarely targets such small hand-to-hand transactions, to the extent that they happen at all. Dealers usually sell baggies containing amounts larger than 25 grams.)

Losing the opportunity to make arrests for public possession of small amounts of marijuana is worth the demolition of one of the more ubiquitous canards against the stop-and-frisk program—that it is being deliberately abused to arrest minorities. And the decriminalization law may even improve the NYPD’s ability to police high-crime areas. It continues to allow the police to intervene in illegal behavior and to send the message to youth violating the law that the police are watching. Writing a summons is far less time-consuming than processing an arrest. The time officers save by not having to go to court for an arrest could increase patrol presence on the street and free them up for additional enforcement activity. Indeed, Harry Levine is already grousing that the 50,000 arrests could turn into 100,000 summonses.

The caveat, however, is that the justice system must follow through and make sure that offenders who have been summonsed are held accountable by paying their fines or doing their community service. If the courts don’t take summons enforcement seriously, then the program could degenerate into a meaningless charade, with individuals giving fake identities and disappearing from view. Such was the fate of a reform in the 1970s and 1980s to expedite the processing of misdemeanor arrests through the issuance of “desk-appearance tickets.” The city’s district attorneys must ensure that the new marijuana violations are rigorously enforced, or Cuomo’s bill could become the first step back to the chaos of earlier years.

Now that the police commissioner and mayor have acceded to Cuomo’s desire to portray himself as a champion of “fairness,” as he put it in a press conference, perhaps the governor could return the favor by rebutting the lies around crime and policing in the city. Here are a few places he could start:

Hot-spot policing, which includes stop-and-frisks, is not racist. The same day that the Times reported on Cuomo’s proposed marijuana change, it ran an article about a fatal shooting on a Harlem basketball court; in fact, the two articles appeared side by side. Four young males (black, of course, though that detail was not disclosed) were shot while playing basketball at 4:50 PM Sunday; one of them, who had been shot in the back, was dead on arrival at the hospital. The Times and every professional cop critic in the city seem incapable of making the connection between such mindless violence and the fact that the NYPD concentrates its police resources in high-crime minority neighborhoods. It’s highly improbable that anyone playing basketball on a Sunday afternoon in Battery Park City, say, would be shot to death. If such shootings were common, the police would flood that neighborhood with cops looking for suspicious behavior just as they do in Harlem and other high-crime areas. Race has nothing to do with the NYPD’s tactics; the only determinant is crime.

Far from understanding this elemental truth about policing—one that its own coverage sometimes makes crystal clear, however inadvertently—the Times remains resolutely committed to the blatant untruth that the NYPD is engaged in biased policing. The day after the basketball-killing story, and next to its follow-up story on the Cuomo marijuana proposal, the Times announced that national gay groups would be calling on Mayor Bloomberg to end stop-and-frisks. “’We are all standing together against police harassment on the basis of a person’s identity,’” Rea Carey, executive director of the National Gay and Lesbian Task Force, told the Times in an interview. To buttress Carey’s claim that the police were “harassing” people based on racial “identity,” the Times trotted out its favorite statistic: in 2011, “87 percent of those stopped were black or Latino.” Its next sentence in the print edition was a classic: “The Police Department, its commissioner, Raymond W. Kelly, and the Bloomberg administration have repeatedly argued that the practice has been effective at preventing crime and saving lives.” (The web edition added a clause about minorities being the majority of homicide and shooting victims.) Implication: yes, we are targeting stops based on a “person’s identity,” but “the practice” is “effective.” The sentence that logically should have followed the racial-stop statistic was: 98 percent of all shootings and 92 percent of all violent crimes are committed by blacks and Latinos, usually in minority neighborhoods. But you will never see those numbers in the Times.

Even more outrageously, the Times called last month for the Department of Justice to investigate the NYPD for its treatment of minorities. Never mind that there is not a more restrained and tightly managed department in the country. New York officers shot and killed 8 people in 2010—fewer than at any time since the department began collecting data in 1971 and down 33 percent from 2009. The number of times officers discharge their weapon was also at a new low. Attorney General Eric Holder and Department of Justice career attorneys have nothing to offer the NYPD when it comes to effective and fair policing.

Marijuana arrests are not racist. Harry Levine, the Times, and the New York Civil Liberties Union trumpet the fact that most arrestees for low-level marijuana crimes in New York City are black and Hispanic, even though national polls allegedly show that young whites use marijuana at higher rates than young minorities. Those national polls are based on self-reporting; they don’t measure frequency of consumption or whether that consumption occurs in public or private. Let us assume for the moment that New York City displays the same patterns of marijuana use as nationally. Let us even assume that white teens walk down the street smoking joints at the same rate as black teens (something that does not conform to my informal observations, though the recent arrival in New York of the loathsome white gutter punks who have colonized sidewalks on the West Coast may change that).

The reason that marijuana arrests are higher in high-crime neighborhoods is that their law-abiding residents ask for heavier police presence and for enforcement of all the laws—including drug laws. The anti-cop advocates love to point out that the 50,000 marijuana-possession arrests in 2011 were more than all such arrests in the 19 years leading up to 1996, when marijuana arrests began rising under the mayoral administration of Rudolph Giuliani. Recall what those 19 years were like: “Twenty years ago you couldn’t walk through here,” a 58-year-old former junkie told me at an East Harlem anti-stop rally several weeks ago. “There’s no crime here anymore.” From 1977 to 1996, those allegedly halcyon days without marijuana enforcement, 12.4 million felonies were committed in the city; from 1997 to 2006, there were only 2.6 million. And it was minority neighborhoods in those pre-Giuliani decades that were most lethally overrun by both crime and the drug trade. Police enforce low-level drug offenses in high-crime areas because they are trying to establish norms of lawful conduct. Ideally, parents would be the ones enforcing those norms, but when they fail to, as the predation in minority neighborhoods shows has happened, the police will step in in their stead.

New York is the safest big city in the country thanks to proactive policing. New Yorkers are oblivious to the gulf that separates the city’s crime portrait from that of every other metropolis with a large minority population. Gotham’s crime drop has been twice as deep and has lasted twice as long as the national crime drop that began in the mid-1990s. No other urban area comes close. The cause of that crime drop was the policing revolution that began in 1994 under Mayor Rudolph Giuliani and Police Commissioner William Bratton, as the University of California’s Franklin Zimring argues in his recent book, The City That Became Safe. The NYPD’s critics are forever trying to put forth alternative models of policing that the NYPD should emulate. These comparisons are, frankly, a joke. Chicago, which has traditionally shunned proactive stop-and-frisks, is a favorite of Columbia University’s Jeff Fagan and Yale’s Tracey Meares, both regular sources for the New York Times. In 2010, Chicago’s murder rate was more than double that of New York; juveniles under the age of 17 are killed in the Windy City at four times the rate of those in New York. A recent Times op-ed proposed the policing strategies of Boston and High Point, North Carolina, as replacements for the NYPD’s hot-spot policing. Boston’s crime rate is 4,107 crimes per 100,000 residents; High Point’s is 5,212 crimes per 100,000 residents; New York’s is 2,257 crimes per 100,000 residents. Thank you, but I’ll stick with the NYPD.

After demonstrating in The City That Became Safe that nothing else besides assertive policing explains why the NYPD’s crime accomplishments trounce every other department, Zimring concludes, with obvious reluctance, that the large drop in violent death and imprisonment among minority males in New York City is “probably” more important than the high rate of stops and misdemeanor arrests, including for marijuana offenses, among minority youth. Let those of us unencumbered by academic inhibitions be clearer: the over 10,000 minority lives that have been saved since the onset of New York’s policing revolution are unequivocally more important than an elevated risk of getting stopped, including for marijuana violations, in a high-crime neighborhood.

Governor Cuomo has grabbed national headlines for his marijuana proposal. Good for him. If he really wanted to show leadership, however, he should also state the obvious: that the NYPD is the best government program yet devised for bringing to the city’s poor the right to life and freedom from fear. These are, after all, the most fundamental human rights of all.

SOURCE: City Journal

mac-donald_photoHeather Mac Donald is a contributing editor of City Journal and the John M. Olin Fellow at the Manhattan Institute.

 

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