Marijuana & Declining to Prosecute

It seems like prosecutors across the country are becoming increasingly tolerant to low-level drug possession, particularly marijuana, in spite of the reversal of the Department of Justice on enforcing the law. Nine states and the District of Columbia have legalized recreational use, and the Manhattan District Attorney’s office is another agency which has decided to not prosecute marijuana cases.

Starting August 1, the D.A.’s office will now ‘decline to prosecute’ marijuana possession and smoking cases, resulting in what is expected to be a 96 percent reduction of prosecutions against low-level marijuana crimes. The announcement comes after an extensive period of research and policy analysis for the last six months. The study involved in-person interviews with law enforcement in multiple jurisdictions where marijuana is not criminally prosecuted any longer.

Previously, New York had somewhat decriminalized the use and possession of marijuana. In New York, it is a violation—not a crime—to possess 25 grams or less of marijuana, with a penalty of not more than a $100 fine. But it is still a crime if you possess more than 25 grams or less than two ounces. And it is also a crime to have marijuana in public when it is burning or open to public view. And of course, anything in larger amounts simply goes up in the severity of its classification.

But the study wanted to find out how law enforcement had been affected by the declassification of marijuana possession as a crime. Largely, it found that public opinion supported the idea of not prosecuting marijuana possession. In Colorado, for example, a jury acquitted someone accused of having more than 2 pounds of marijuana – later, they asked prosecutors why their time was wasted on a case like that.

Significantly, the study also confirmed what is widely suspected – that enforcement of marijuana laws disproportionally affects minorities – even in jurisdictions where it is largely legalized. Oregon showed that while marijuana arrests declined for adults across the board, black adults were still arrested over 50 percent higher than their white counterparts in 2015. In Washington, law enforcement reported that removing the mandate to arrest for possession removed a source of conflict between the police and the community. As a result, there is a much better relationship between law enforcement and the public at large.

In New York, by and large, there is public support for legalization of marijuana, with over half of those polled supporting it. The D.A.’s office has made this decision in large part to reduce the racial disparities of arrests made by its officers. The NYPD has previously claimed that they make arrests based on the number of calls it receives – but data shows that, of the five precincts with the largest number of marijuana arrests in 2017, only two of those were in the top five for marijuana-related phoned calls.

The disparities persist even in neighborhoods. In Flushing, Queens, black and Hispanic individuals make up 19 percent of the overall population. Yet, they account for 71 percent of arrests. To top it off, there has been no studied, useful criminal justice outcome. Of the 5,333 people arrested in Manhattan for having a joint, nearly 80 percent were arrested and booked. Of those, the Manhattan D.A’s office either declined to prosecute, dismissed or offered an ‘Adjournment in Contemplation of Dismissal’ (ACD), which eventually results in a dismissal and sealed record.

Arresting individuals for minor marijuana possession crimes wastes criminal justice resources in exchange for almost no punitive, rehabilitative or deterrent effect. It also disproportionately affects minorities, further stigmatizing and ostracizing factions of the community. As a result, the Manhattan D.A. has announced his policy of declining to prosecute minor possession violations – and he is in good company.

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