As a public defender, I’ve grown all too accustomed to hearing promises of progressive criminal justice reform from mayors and district attorneys, only to witness the startlingly different realities in court. I was disheartened, but not at all surprised, to read the new report by the Drug Policy Alliance (DPA) and Marijuana Arrest Research Project highlighting the shameful degree of racial disparity in NYPD marijuana arrests during Mayor Bill de Blasio’s first three years in office.
Between 2014 and 2016, despite the Mayor’s pledges to reform the NYPD, reduce inequality, and end marijuana arrests for the good of the city and its marginalized communities, there were over 60,000 arrests for low-level marijuana possession, 86% of which involved black and Latino individuals. Although government surveys show that white people use marijuana at equal or higher rates, in 2016, the NYPD arrested more black people for marijuana use in Manhattan alone than whites in all five boroughs, combined. And remember: Most Americans support full legalization of marijuana. No arrests, no fines, nothing.
From my vantage point, however, this is not just a policing problem. This is not just a failure of leadership from the Mayor’s office. This is also, significantly, a prosecutor problem. Let me explain.
Most New Yorkers, most Americans, are unaware of the enormous and unique degree of power that prosecutors wield to drive virtually every aspect of our criminal legal process. Prosecutors decide whether to charge, what to charge. Prosecutors decide whether to request bail that will trap someone on Rikers Island until their case is over, whether to allow a plea to a lesser charge, when and which evidence will be shown to the defense, and, ultimately, whether to demand imprisonment or show mercy.
That initial charging decision though—what scholars refer to as prosecutorial “gatekeeping power”—is perhaps the most critical of all. Saying no can save a person from the stigma and damage of an unnecessary prosecution, but it can also send a powerful message.
When it comes to marijuana arrests, given what prosecutors know about the decades of racial disparities and the serious, lasting harm of unnecessary police interactions, they have the power and duty to challenge these practices and reverse these trends by closing those gates. Declining to prosecute these arrests would send the message: this is wrong. This is not justice. Yet far from doing so, district attorney’s offices propel marijuana arrests forward. They enable them.
In court, both public defenders and prosecutors bear witness daily as black and Latino New Yorkers are churned through the system: stopped and frisked, cuffed and ripped from their communities, detained in putrid conditions, then led into the courtroom where they are assigned bar codes and have their retinas scanned. When I meet my clients, they tell me about illegal searches by the police. They express fears of missing or losing work, getting kicked out of school or losing student loans, leaving those in need of caretaking without caretakers, and ending up on ICE’s radar, whether documented or undocumented. They’re terrified.
All of this for simple possession of marijuana. It’s dehumanizing. It’s unnecessary. It’s unfair.
Yet once in court, after formally charging someone, prosecutors don’t seem to care about marijuana either. They acknowledge the arrests are ridiculous. I’ll often ask prosecutors at arraignments: “Why are you even prosecuting this?” “Where are all the white people you know as well as I do that smoke?” “Why don’t you just dismiss?”
Their response: “Relax. They’re all going home today anyway, whether they’re white or black.”
This flippant response is at least partially true: Despite the enormous human and fiscal costs of bringing people into the system, whether you’re white or black or it’s your first arrest or your 50th, marijuana prosecutions almost always end the same day they begin. With offers of ACDs (i.e., cases stay open for up to a year after which they automatically get dismissed), offers of pleas to non-criminal violations, or worst case scenario, a plea to a misdemeanor crime with no jail time, the cases are very often over and done just as soon as they start. These dispositions are not without significant harms: high mandatory surcharges, an addition to a criminal record, or an open criminal charge during the duration of the ACD. But my clients do walk out the door.
The Brooklyn DA’s office recently pointed to evidence of relatively small racial discrepancies in the ultimate outcomes of marijuana cases just described as evidence that those prosecuted are “treated fairly and equitably.” This response brazenly passes the buck. Ultimate outcomes notwithstanding, prosecutors cannot so easily absolve themselves of complicity by ignoring the extraordinary racial disparities in the arrests that the NYPD first hands to them.