Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.

Close Newsletter Signup

Public Defenders Say New York’s New Policy To Reduce Marijuana Arrests Doesn’t Go Far Enough

The exceptions to the policy change could actually worsen the racial disparities in marijuana-related arrests, defense attorneys told The Appeal.

Brooklyn District Attorney Eric Gonzalez (left), community organizer Monique Waterman, New York City Mayor Bill de Blasio, New York City Police Commissioner James O'Neill and NYPD Chief of Patrol Rodney Harrison held a press conference in June to announce a new policy that they said would reduce unnecessary marijuana arrests.
Drew Angerer/Getty Images

Public Defenders Say New York’s New Policy To Reduce Marijuana Arrests Doesn’t Go Far Enough

The exceptions to the policy change could actually worsen the racial disparities in marijuana-related arrests, defense attorneys told The Appeal.

A new New York Police Department policy to reduce arrests for some people caught smoking marijuana in public kicked in on Sept. 1, but it’s not clear if much will change on the ground. The policy, announced by Mayor Bill de Blasio and NYPD Commissioner James O’Neill in June, said people would be stopped by police and given a criminal summons when smoking in public. However, in certain cases people would still be subject to arrest, including if they are on parole or probation, have a warrant out for their arrest, don’t have an ID, have one prior unsealed arrest in the past three years for a “violent” charge—which includes felony weapon possession or felony assault, or if they are an immediate danger to public safety—such as using marijuana while driving a car. The city expects the change will reduce arrests by about 10,000 each year.

It’s not yet clear how quickly law enforcement officers are adopting the new policy. Rebecca Kavanagh, a public defender in New York, said she defended a 16-year-old charged with marijuana possession at the beginning of the month and that her colleagues saw a marijuana arraignment last weekend. Scott Hechinger, senior staff attorney and director of policy at Brooklyn Defender Services said that he has yet to see any low-level marijuana arraignments in Brooklyn in September. However, he emphasizes that any desk appearance tickets would take about two weeks before a court appearance.

The change was announced after the NYPD drew criticism from the City Council and the public for racial disparities in marijuana arrests. Last year, 87 percent of people arrested for smoking marijuana were Black or Latino. According to a New York Times investigation, Black New Yorkers are eight times more likely to be arrested for a low-level marijuana charge than a white person. In a City Council hearing earlier this year, the NYPD testified that the racial disparities were due to a larger number of 311 and 911 calls in certain neighborhoods. However, the Times investigation into the citywide racial disparities debunked this claim.

Many public defenders in New York are not optimistic that the change will address these disparities. The exceptions to the summons policy could make it even worse, said Hechinger.

“We’re really disturbed by the senseless carve-outs in his policy that we know are simply going to mimic the same racial disparities that already existed in marijuana enforcement,” Hechinger told The Appeal. “By arresting people for marijuana if they have a record, by arresting people for marijuana if they happen to be on parole—those people, more often than not, are going to be people of color who only live in certain neighborhoods. Because those are the people who are targeted. Those are the people who are arrested, not because they commit more crime but because they are overpoliced.”

And when it comes to summonses for marijuana, racial disparities already mirror those of marijuana arrests. From January to June this year, 80 percent or more of the people who received a summons for marijuana were Black or Latinx, according to the New York Times.

Those who are given a summons for smoking marijuana will be charged with a violation, not a crime, said Patrick Gallahue, a spokesperson for the mayor. If someone fails to show up in court for a criminal summons, an arrest warrant is issued.

We want no arrests, no tickets, no fines, as happens for nearly all white people who smoke, so marijuana use cannot be a pretext for continued harassment of mostly Black and/or Latinx New Yorkers,” Jared Chausow, senior policy specialist at Brooklyn Defender Services, told The Appeal.

When asked in a June press conference if he expected to see a change in racial disparities under his plan, de Blasio said, “So right away, the question is, how do we reduce unnecessary arrests? This is already proven to be a very positive thing for this city. …That’s the thing I’m quite certain you’re going to see progress on quickly, in the process you’re inherently addressing disparity.”

Kavanagh believes the policy change is a maneuver to avoid transparency in arrest statistics, and points out that people could still be charged with crimes in the future through summonses. “It’s a little bit of smoke and mirrors,” she told The Appeal. “You can charge people with misdemeanors through summonses … [and] you can really manipulate arrest statistics.”

Public defenders say as long as marijuana is illegal, the NYPD can use it as a pretext for stops and searches that would otherwise be unconstitutional.

“What we see on the front line as public defenders, the odor of marijuana or the alleged possession of marijuana is still used as pretext in a large number of cases to unconstitutionally stop, search and arrest client of ours for other things,” Hechinger said. “It’s [marijuana] prohibition which still continues to drive broken windows policing, given what we see on the ground, even if people aren’t ultimately arrested for marijuana.”

In June, de Blasio said he’s “not there yet” on legalization but has convened a mayoral task force to determine the “regulatory framework” for legalization. Governor Andrew Cuomo formed a working group in August to draft legislation that would legalize recreational use for adults and is currently holding “listening sessions” on legalization. But the timeline for legalization is still murky.

Kavanagh said that as long as cops are allowed to stop people for marijuana it will “still [be] a way of harassing young Black and brown people even if it’s not then going to be used in a way to give people criminal records.”

Ohio State Rep: If Police Tase or Shoot a Child, She Probably Acted ‘Stupid’ or Was ‘a Punk’

Rep. John Becker doubles down on his recent comments about the tasing of an 11-year-old for allegedly shoplifting.

Ohio state Representative John Becker
Office of Rep. John Becker

Ohio State Rep: If Police Tase or Shoot a Child, She Probably Acted ‘Stupid’ or Was ‘a Punk’

Rep. John Becker doubles down on his recent comments about the tasing of an 11-year-old for allegedly shoplifting.

Cincinnati police officer Kevin Brown’s decision to fire a Taser at an 11-year-old girl suspected of shoplifting from a grocery store in August immediately drew criticism from city officials and advocates.

But Ohio state Representative John Becker had a different take. Had it been his daughter, he announced in an August newsletter, “I’d be ashamed and embarrassed that she did something stupid enough to get herself tased.”

Becker’s remarks appeared in his newsletter “Beckerisms” weeks after the Cincinnati Mayor John Cranley apologized for the officer’s actions and the county prosecutor said the girl would not face charges. An internal review released this month found that the officer had violated multiple rules; a departmental hearing is pending.

Becker also addressed police shootings in his newsletter. If his child were shot by police, he wrote, “rather than blaming the cop, I’d be blaming myself and endlessly soul searching to figure out how I failed as a parent and why my kid grew up to be a punk.” He added, “Based on the evidence of what I see on television, it often times appears to me that justice was delivered to the dead punk.”

When he tased the girl on Aug. 6, Brown was working off-duty as a security guard at a Kroger market. Police say he believed the girl was shoplifting. (A report stated that the girl had stolen items, including a backpack, candy, and baby clothes totaling $53.81.) Brown fired his taser from about 10 feet away, striking her body just below her waist.

Body camera video includes Brown telling the girl, after he tased her, “Sweetheart, the last thing I want to do is tase you like that. When I say stop, you stop. You know you’re caught, just stop. That hurt my heart to do that to you. Then I got to listen to all these idiots out here in the parking lot, telling me about how I was wrong for tasing you.”

Later, also captured on video, the girl cries as EMTs remove the taser barbs from her skin. Police Chief Eliot Isaac has said Officer Brown’s use of the Taser was “unnecessary in this circumstance.”

Tasers are often billed as “less lethal” weapons,” though Tasers can kill. A 2017 Reuters study found 1,005 cases of fatal stun gun use by police, nearly all since the early 2000s, with “more than 150 autopsy reports citing Tasers as a cause or contributor to deaths.”

When The Appeal asked Representative Becker if it’s appropriate for police to use potentially deadly force against children, he replied via email, “Children? Are we talking about 5-year-olds or 17-year-old armed gang members? It obviously depends on the age of the ‘child’ and the circumstances involved.” When The Appeal pointed out that the child in this case was 11, Becker responded, “She was simply tased for resisting arrest.”

Becker also told The Appeal that if police tase a child, “it could be an indication of a parenting problem.” He added, “If I were to do research, I would expect to find that kids that come from two parent in-tact [sic] supportive families are less likely to get in trouble with the authorities than kids that came from tougher environments.”

But his response elides well-established research on disparities in policing. According to the Sentencing Project, Black youth are 2.5 times more likely to be arrested for property offenses than white youth. In schools, Black girls are nearly four times more likely to be arrested than white girls, according to a Georgetown Law School study. One reason for the disparity, based on an analysis of Department of Education data, may be because Black children are more likely to encounter school-based police.

“I don’t know to what degree, if any, racial disparities are a factor,” Becker told The Appeal. ““I don’t doubt that [Officer Brown] would have tased a white 11-year-old shoplifter under the same circumstances.”

Becker calls himself “pro-gun,” and earlier this year, he introduced a bill to permit teachers to carry concealed weapons in schools. In November, Becker will face a Democratic challenger, Patricia Lawrence, for his seat in the Ohio House of Representatives. Lawrence spoke out against Becker’s newsletter comments on police shootings. “Every American has a right to a fair trial and due process under the law,” she said in a statement. “John Becker’s comments show not only a lack of respect for the U.S. Constitution, but a lack of respect for human life.”

More in Explainers

‘Safer to Leave Them There’

How the politics of storm preparation reveal whose lives matter, and who gets left behind.

Prisoners from the Brevard County Jail worked to fill and load sandbags ahead of Hurricane Irma in Meritt Island, Florida in September 2017.
Brian Blanco/Getty Images

‘Safer to Leave Them There’

How the politics of storm preparation reveal whose lives matter, and who gets left behind.

As Hurricane Florence lurches toward the Southeast, there’s another, familiar storm brewing. Right-wing gadfly Rush Limbaugh has speculated that the forecasts are just a way to “heighten the belief in climate change,” with more moderate voices warning that we shouldn’t politicize what’s likely to be a human tragedy with talk of global warming. Environmentalists argue that it’s exactly the time to politicize the event, and seize the opportunity.

Whether or not to politicize a storm, though, isn’t a question that makes a whole lot of sense. How hurricanes play out—and who they kill—are the result of deeply political choices. Officials in South Carolina have made theirs. In a press conference on Wednesday, Governor Henry McMaster urged residents that, “If you are in one of the evacuation zones, you need to leave now.” But there were no plans made to evacuate the roughly 650 prisoners at MacDougall Correctional Institution, a medium-security men’s prison in one of the five counties under mandatory evacuation. Prisoners there are being forced to stay put as the storm, recently downgraded from Category 4 to Category 2, barrels onto shore. As a South Carolina Department of Corrections (DOC) official explained, “In the past, it’s been safer to leave them there.”

It’s not the first time lives have been deemed expendable in the face of a catastrophic storm. Last year, Hurricane Maria hit an island—Puerto Rico, a territory of the U.S.—that has been under a form of colonial control for centuries. The United States diverted nearly $10 million in funds from the Federal Emergency Management Agency to ICE, potentially hampering recovery efforts in order to help lock up people who themselves may be fleeing the slower climate impacts of droughts south of the border. This week, President Trump implied the death toll of that storm in Puerto Rico was fake news, suggesting that estimates of 3,000 people (and most likely more) killed in that storm were numbers issued to undermine his presidency.

Another obviously political choice driving storms is the one to continue extracting and burning fossil fuels, the main contributor to global warming. It’s manifestly true that climate change has helped fuel Hurricane Florence, with warmer waters allowing it to move more slowly and gather strength in the process. Yet there’s nothing inherently dangerous about storms emboldened by climate change. The real threat is in how the societies they hit are organized: Who gets hit worst, and whose lives matter enough to protect from storm surges, floods, and winds?

Hurricane Florence approaches the U.S. coast.
Credit: NOAA

Jordan Mazurek, a Texas-based researcher with the group Fight Toxic Prisons, has spent the lead-up to the last several big storms to hit the continental U.S. organizing call-ins (or what he calls “phone zaps”) to pressure local, state, and even the federal government to evacuate prisoners in harm’s way. It worked in North Carolina and Virginia, but South Carolina’s DOC—which hasn’t issued an evacuation order for prisoners since 1999—is holding out. (As of Friday morning, there had been no word from the governor’s office that it intends to evacuate the prisoners, though one minimum security prison was evacuated.)

Still, even if evacuations are agreed to, that’s no guarantee they will actually happen. “We should not trust governments to do this work of their own volition,” Mazurek said. Around Hurricane Irma last year, he adds, the Florida Department of Corrections agreed to an evacuation of prisoners, but thousands of federal, state and county prisoners were left behind.

If past storms are any indication, what could await prisoners in Florence’s path is a lack of access to clean water, severely limited food supplies and overflowing toilets, conditions likely to be exacerbated if guards and prison staff don’t show up. Prisoners left behind during Hurricane Harvey in Texas last year dealt with water up to their knees for several days, and taps cut off as their prison’s plumbing gave out. One prisoner told Mother Jones’s Nathalie Baptiste, “They left us locked in an 8 by 12 foot cell for several days with feces and urine piling up in our toilets,” and that few if any arrangements were made in advance of the storm to ensure their safety.

Hurricanes aren’t the only effects of climate change that pose a threat to prisoners. As an investigation from Truthout and Earth Island Journal found, officials in Texas admitted to 23 heat-stroke-related deaths since 1998 throughout its state-operated prisons, 10 of which occurred in 2011. Seventy-nine of its 108 units lack air conditioning, the investigation found, despite temperatures that can easily exceed 100 degrees.

“Historically prisoners have not been part of hurricane planning,” Mazurek said, “until it comes time to use them as cheap labor to help with disasters.” The same prisoners forced to endure Florence may well be made to do unpaid labor cleaning up its damage, like prisoners in Florida after Irma. (Prison labor has also been a major part of California’s plans for fighting wildfires; more than 2,000 prisoners in the state are serving as firefighters, earning around $2 per day.)

“A lot of the environmental movement is increasingly focused on frontline communities,” Mazurek tells me by phone, referring to those most impacted by fossil fuel extraction and climate change. “What a lot of the mainstream environmental movement has neglected up until this point is that those exact same communities are overincarcerated. If we’re going to lift up the stories of frontline communities, we have to do the same for incarcerated people.”

More in Podcasts