After Pittsburgh Decriminalizes Pot, Black People Are Still Disproportionately Charged With Possession

Around 10:15 p.m. on Jan. 11, 2016, David (not his real name) was in the back seat of a car on the streets of Pittsburgh when the driver failed to use her turn signal when exiting a parking lot.

Pittsburgh police pulled up behind the vehicle and began a traffic stop that would end with the 24-year-old Black man and one of his friends facing criminal charges.

David was searched, and police discovered he had a clear plastic bag with what they believed was marijuana in his shoe. He and a friend were taken into custody and charged with misdemeanor possession of a small amount of marijuana. Because he had an outstanding warrant, David’s bail was set at $10,000 cash. His charges were ultimately reduced to summary disorderly conduct and he was ordered to pay a little more than $150 in fines and fees.

Though Pittsburgh decriminalized marijuana in late 2015, David is among hundreds of people who have been criminally charged with only possession of a small amount of marijuana in the past two years. Black residents make up most of Allegheny County’s prosecutions for misdemeanor marijuana possession, according to The Appeal’s analysis of these charges. Even after the decriminalization ordinance gave officers the option to treat possession of a small amount of marijuana as a summary offense similar to a traffic citation rather than a misdemeanor, Pittsburgh leads the county in these criminal charges.

The Appeal reviewed all criminal charging dockets filed in magisterial district judge offices in Allegheny County in 2016 and 2017 and found roughly 2,102 cases where defendants were charged with misdemeanor possession of a small amount of marijuana—defined as 30 grams or less—with a possible additional charge of possession of drug paraphernalia.

Any case where the defendant was initially charged with another criminal offense, vehicle code violation or any drug crime other than possession of marijuana or drug paraphernalia was excluded from the review of records.

About 51 percent of the people charged in these cases were Black, according to The Appeal’s review. According to the U.S. Census Bureau, just 13 percent of the county’s population is Black.

More than 600 cases were filed by Pittsburgh Police Department, and more than 400 of those cases were filed against Black defendants. That is twice as many cases as were filed against white defendants.

While the misdemeanor charge generally does not carry a jail sentence, a conviction for possession of a small amount of marijuana can have lasting consequences, like barring someone from receiving college financial aid or triggering a driver’s license suspension.

Many of these cases were ultimately reduced to summary disorderly conduct or public drunkenness. But even when these charges are ultimately reduced or dismissed, defendants are fingerprinted, entered into the system, and later must explain or expunge their arrest record.

Though it’s only the second most populous county in Pennsylvania, Allegheny leads the state in the number of arrests for possession of marijuana. In 2016, police in Allegheny County made more than 2,100 arrests for possession of a small amount of marijuana, according to the Pennsylvania State Police Uniform Crime Report.

Arrests for marijuana have actually risen since decriminalization went into effect, and police departments can still choose not to abide by the ordinance. In most counties in Pennsylvania, including Allegheny, police are able to file criminal charges and even resolve low-level offenses without consulting the district attorney first.

Police handled more than 90 percent of the cases identified by The Appeal, which were disposed of early in the process by either reducing the charges to a summary citation or dropping the charges altogether.

Only about 2 percent reached Allegheny County District Attorney Stephen Zappala’s office.

In those cases, both Black and white defendants faced roughly the same likelihood of being sentenced to either probation or jail, but Black defendants on average were ordered to pay about $50 more than white defendants.

David Harris, a law professor at the University of Pittsburgh, told The Appeal that the disparity is most likely a result of unequal enforcement. Black and white people use marijuana at roughly the same rate, but Harris said there is most likely heavier police presence in communities of color, which leads to police detecting and arresting for these low-level offenses more there than in predominantly white communities.

“It’s not about who offends, but it’s about where the enforcement is placed,” Harris said.

The disparate racial impact has prompted other district attorneys in Pennsylvania and beyond to decline prosecution of these kinds of cases. In February, Philadelphia District Attorney Larry Krasner announced that his office would no longer prosecute marijuana possession cases. Manhattan District Attorney Cyrus Vance dismissed more than 3,000 open marijuana possession cases in September. He told reporters this was an effort to “even out racial disparities” and “right-size” the criminal justice system.

Zappala, a Democrat, supported Pittsburgh’s decriminalization ordinance in 2015, praising Philadelphia’s version at the time: “Addressing ‘small amounts’ as a civil matter with fines in Philadelphia has reduced the 4,000 arrests annually for this offense by 73 percent, thus diverting limited assets to addressing other types of crimes.”

He even wrote a letter to then-Pittsburgh Police Chief Cameron McLay pledging to “work with you to try to accomplish what the Mayor and City Council would like to see done.” But his office has done little to ensure the ordinance is actually enforced. Michael Manko, a spokesperson for Zappala, placed the responsibility squarely on the shoulders of police agencies.

Manko rejected the idea that the district attorney’s office sets policy for law enforcement in the county, and referred questions about the cause of the racial disparity to the police departments.

“Are you suggesting that the DA should tell municipalities that if simple possession of marijuana and paraphernalia are the only charges they have during an arrest that they should decline filing, particularly if the individual is African American?” he said.

The Pittsburgh Police Department did not respond to request for comment.

Though most of these cases don’t make it to the DA’s office, making a public decision to not prosecute these cases, as Krasner did, would send a signal to law enforcement how to prioritize these cases and eliminate incentives for defendants to accept any plea offer before the case reaches the DA.

If the person knows his or her case will be dismissed later, there is little reason to plead guilty even if the penalty is as minor as paying a fine.

Furthermore, the delay between law enforcement agencies could be motivation enough for the police to continue making arrests, said Fordham University law professor John Pfaff. As William and Mary Law School professor Jeffrey Bellin points out in his recent paper “The Power of Prosecutors,” even if a prosecutor decides to dismiss all marijuana cases, that does not stop police from continuing to make arrests. These arrests can lead to the defendant sitting in jail until the prosecutor dismisses the case.

“It’s certainly possible that if DAs are slow to dismiss the charges, and the police view whatever time is spent in jail pending dismissal as an ‘appropriate’ punishment, then the police may still keep making arrests–a classic example of the ‘the process is the punishment,’” Pfaff said.