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Texas D.A. Who Sent Woman To Prison For Five Years for Voting Made Her Own Election Mistake

Tarrant County District Attorney Sharen Wilson prosecuted Crystal Mason for casting an illegal ballot. But Wilson escaped charges for a possible election violation of her own.

Tarrant County DA Sharen Wilson
Video still via Fort Worth Star-Telegram; Illustration by Anagraph

Texas D.A. Who Sent Woman To Prison For Five Years for Voting Made Her Own Election Mistake

Tarrant County District Attorney Sharen Wilson prosecuted Crystal Mason for casting an illegal ballot. But Wilson escaped charges for a possible election violation of her own.

Crystal Mason, a 43-year-old mother of three, made headlines in March when she was sentenced to five years in prison for voting. Because of that conviction, on Aug. 30 a federal judge found her in violation of the terms of her supervised release and sentenced her to 10 months in prison, plus two years and two months of probation.

Mason says she didn’t know she was ineligible to vote when she cast a provisional ballot in Fort Worth, Texas, in the November 2016 presidential election. But she was on supervised release after a federal prison term for tax fraud, making her vote illegal. She found out three months later, when she was arrested for it.

“They tell you certain things like you can’t be around a felon, you can’t have a gun,” she told the Fort Worth Star-Telegram last year. “No one actually said, ‘Hey, you can’t vote this year.’”

The original case against Mason was brought by Tarrant County District Attorney Sharen Wilson in February 2017. But critics say it was not only unduly harsh—it was also hypocritical. Wilson, a Republican, has been far more lenient in handling an election-related forgery case involving a Republican justice of the peace, they point out. And she also committed an election-related impropriety of her own in 2016: asking her staff for personal contact information and then using it to solicit them for funds for her re-election.

Legal experts are mixed over whether that was a criminal offense, and a special prosecutor declined to pursue action against her. But Grant Hayden, a law professor at Southern Methodist University, said it’s unfair for Wilson to hold voters like Mason accountable for not knowing election rules and then claiming not to know rules herself. “Yeah, it looks like a double standard on its face,” Hayden told The Appeal. “And that’s a problem.”

A re-election fundraiser

In August 2016, Wilson was about halfway through her first four-year term serving as district attorney in Tarrant County, which covers Fort Worth. On Aug. 10, reporters for the Star-Telegram later discovered, she sent an email to her employees asking for their personal email addresses and cell phone numbers, and confirmation of their home addresses. Then in September, she sent an email inviting them to her Sept. 28 re-election fundraiser, the Star-Telegram reported. “Sharen would appreciate your support of $1000-$500-$250-$100,” the invitation read.

Section 39.02 of Texas law forbids public servants from using government property or personnel to “obtain a benefit.” So an elected official’s use of a government computer to request staff members’ private email addresses to solicit them for political donations could be a misdemeanor. Twenty-eight of Wilson’s staffers donated to her campaign, according to a campaign finance report obtained by the Lone Star Project, a political action committee.

In fall 2016, the Texas Rangers’ Public Integrity Unit launched a criminal investigation, according to the Star-Telegram. Since Wilson couldn’t investigate her own case, a judge assigned it to the DA in another county, Republican Maureen Shelton. But after reviewing the evidence, in February 2017 Shelton sent a letter informing the judge that she was dropping the case because of “insufficient evidence of criminal intent. … I have been assured that there are policies and procedures in place so there will be no issues in the future.”

Wilson’s office didn’t respond to questions about her own case or Mason’s. Instead, spokesperson Samantha Jordan pointed to her office’s “most recent comment,” which assistant DA Matt Smid made to the Star-Telegram on Aug. 30: “The DA’s office has said that we will not apologize for enforcing the laws of the State of Texas. It is against state law for a person on federal supervised release to vote in Texas. We believe it is not an ‘accidental vote’ when the voter drives herself to the polling place and votes after signing a warning against illegal voting and after being warned not to vote by her defense attorney. That is why the state judge found her guilty and the federal judge revoked her supervised release today.”

But the attorney warning happened years before the election, in November 2011, when Mason pleaded guilty in the tax fraud case, her attorney at that time, Warren St. John, told The Appeal.

Prison vs. probation

In her one-day trial in March, Mason herself challenged the logic of the prosecution’s case. She would never have cast a ballot had she known it was illegal since she had nothing to gain, she said in her testimony. The prosecution’s evidence that Mason knew what she was doing rested heavily on the testimony of a 16-year-old volunteer poll worker. He said he watched Mason read the section of the provisional ballot she filled out about not being eligible to vote while under supervision.

“What did you see?” a prosecutor asked him on the stand.

“Her finger watching [sic] each line,” the young poll worker responded, “making sure she read it all.”

A second poll worker—an experienced election judge—couldn’t say for certain whether Mason read that section.

And Texas law regarding what constitutes “supervision” under federal versus state law is confusing, says Alison Grinter, Mason’s current attorney. “Had she come to me beforehand [before the 2016 election] and said, ‘Alison, can I vote?’ I mean I’m board-certified in criminal law, and I’d have said ‘I don’t know,’” Grinter told The Appeal. In any case, Mason’s vote was never counted.

Mason’s case was the second time Wilson had come down hard on someone for an illegal vote. In 2016, she prosecuted 37-year-old green card holder Rosa Ortega for twice casting illegal ballots. Last February, Ortega was sentenced to eight years in prison, though, like Mason, she has also insisted throughout that she didn’t realize she couldn’t vote. Hers is the longest prison term in Texas history for an illegal ballot, according to records obtained by the Star-Telegram. Mason and Ortega are appealing their convictions.

The DA’s unsparing approach to prosecuting both Mason and Ortega contrasts with her handling of another election-related case. In April, Justice of the Peace Russ Casey pleaded guilty to forging signatures to get on a March 6 Republican primary ballot. For his crime, he got no prison time but is serving five years’ probation. “No one is above the law in Tarrant County,” Wilson told the Star-Telegram. In response to a question about why Mason and Ortega got long prison sentences for lesser crimes, Smid told the paper that it was because neither woman accepted a plea deal.

But St. John said Mason was offered 10 years’ probation—double what Casey got. When asked about that disparity, Wilson spokesperson Jordan responded, “We offered probation for this offense to [Mason,] a multiple felon with both state and federal convictions. There was no prior criminal history in the other case [Casey’s].”

Yet, Grinter explained that Mason couldn’t plead guilty because doing so would have violated the terms of her federal supervision.

Regardless of the plea deals offered, some experts say, Casey ultimately got off easier than either of the two women, which doesn’t seem fair. “If you’re looking at what is a bigger risk to democracy, insiders manipulating the rules is a much bigger threat than someone who voted while they’re not eligible to vote but will be eligible as soon as they complete the terms of their supervised release,” said Theodore Rave, associate law professor at the University of Houston Law Center.

Sending a message

There’s a lot more at stake than unequal treatment of individual cases, according to advocates. Tarrant County votes Republican but not by much. Donald Trump beat Hillary Clinton by just nine points there, and Democrats are targeting it in their effort to flip the whole state.

The long jail terms send new voters the message that a ballot mistake could ruin their lives, explains Beth Stevens, a lawyer at the Texas Civil Rights Project, and that’s an effective way to keep them from the polls. “Any attempt to quash someone who’s been a nonvoter in the past from becoming a voter benefits those currently in power,” she told The Appeal.

Ultimately, the only check on elected prosecutors is voters who care about whether cases are handled fairly, said Gerald Reamey, a law professor at St. Mary’s University School of Law in San Antonio.

They will get to issue a verdict on Wilson in the election on Nov. 6. In 2014, she ran unopposed. This year, she’s facing a challenge from Albert John Roberts, one of her former assistant DAs.“I don’t see this as using our resources as the district attorney’s office or as taxpayers wisely,” Roberts said of the Mason and Ortega prosecutions. “Are we a safer community because they’re in prison? And the easy answer to that question is ‘No, we’re not.’”

Curtis Brooks Didn’t Kill Anyone. So Why Is He Labeled A Murderer For Life?

A man sentenced to die in prison is inciting debate over ‘felony murder’ rules in Colorado.

Illustration by Simone Noronha

Curtis Brooks Didn’t Kill Anyone. So Why Is He Labeled A Murderer For Life?

A man sentenced to die in prison is inciting debate over ‘felony murder’ rules in Colorado.

This piece was published in partnership with Slate.

In 1995, 15-year-old Curtis Brooks was homeless. He had moved to Colorado from Maryland to reunite with his mother, who had been in and out of his life. “Getting out here, I was happy,” he recalled. “All I ever wanted was my parents. And it just turned out that it was not at all what I was hoping for.” Brooks ended up on the streets, gratefully accepting offers to sleep on couches and garage floors. One day in April, he sought refuge from a blizzard, watching kids play Mortal Kombat in the Aurora Mall arcade. In his bag, he carried his only possessions: a few T-shirts, a pair of sandals, a video game magazine, a tube of Clearasil, and face cleanser.

At the arcade, Brooks ran into Deon Harris, a teenager he’d met a few days earlier, who had let Brooks sleep on his couch. Harris and two other boys asked Brooks to help them steal a car. Brooks, who had no criminal record, agreed and was handed a gun. The group approached a stranger named Christopher Ramos, who was walking to his car from an ATM across the street. As instructed, Brooks fired a distraction shot in the air. Without warning, Harris shot Ramos in the head, killing him.

Brooks and the other boys ran, but police easily followed their tracks in the snow and arrested them. Brooks confessed to his role that day. Even though prosecutors acknowledged he wasn’t the one who’d pulled the trigger, he was convicted of first-degree murder and given a mandatory sentence of life in prison without the possibility of parole. He remains incarcerated today.

Brooks’s conviction wasn’t a mistake. In most states, individuals can be convicted of murder for any death that occurs while they are in the act of committing another felony—in Brooks’s case, aggravated robbery of the car. “Felony murder rules” are used by prosecutors to escalate all sorts of crimes into murder convictions—even when the defendant did not carry out, intend, or anticipate the killing. By law, Curtis Brooks is as guilty as if he’d planned and perpetrated cold-blooded murder.

Felony murder rules are unique to the United States. It is difficult to quantify how many people they have put behind bars, since the convictions are simply recorded as murders. When Human Rights Watch and Amnesty International surveyed 172 letters from youths serving life without parole in 2005, they found that 45 had been convicted of felony murder. And a 2009 report by the Children’s Law Center of Massachusetts found that 20 percent of people sentenced to life without parole as juveniles in the state were convicted of felony murder.

In Colorado, Brooks finds himself at the center of a case that is inciting public debate over the felony murder rule. On Monday, the court issued a ruling that could transform the lives of the 16 prisoners in the state who were sentenced to life for felony murder when they were children.

Illustration by Simone Noronha

After returning a guilty verdict in Curtis Brooks’s 1997 trial, the jury went back to the deliberation room. The judge came by to thank the jurors and invite them to ask questions about the case.

“That’s when all of a sudden, everything changed,” recalled Bruce Grode. He and his fellow jurors were stunned and horrified, he said, to discover what they had been blocked from hearing about at trial: Brooks’s nonexistent criminal background, the fact that he barely knew his accomplices, and the multiple crimes the other boys had committed together that very morning. Grode said he asked if the jury could take this information into consideration for sentencing, but the judge explained that Brooks’s life sentence was automatic.

“There was a gasp in the room,” Grode recalled. “Some of the women on the jury started crying.” As they gathered in the courthouse parking lot before going their separate ways, “one woman said, ‘I feel like we’re pawns that’ve just been used in a chess game.’ It was very disheartening.”

When Brooks aged into the adult prison system at 17, he was sent to Colorado State Penitentiary, a maximum-security facility where everyone was in solitary confinement for 23 hours a day. “I was absolutely a scared punk kid,” he said. “I acted out as a way to show, ‘Just leave me alone and I’ll do my thing.’” He spent the next 10 years in solitary confinement.

Brooks quickly earned his GED, but spent most of the next few years watching a small black-and-white TV in his cell. He often overheard other men on his tier talk about returning to crime upon release. “Hearing those kind of conversations disgusted me, because I thought it was like the ultimate level of stupidity,” he said. When he was 23, “I took a couple days where I literally didn’t talk to anybody. And I spent that time in self-reflection and I came to realize that I was disgusted with what I was hearing because I was seeing those qualities in myself. And that was the period when I decided I needed to change.”

He began reading voraciously; taking college courses; studying Spanish and Lakota, a Siouan language; learning psychology and physics; and writing a series of fantasy novels. “Once I started learning, it ignited that desire for me to just want more and more and more knowledge,” he said. He held a job and coached an over-40 basketball team, and he is co-founding a pro-social discussion group for incarcerated video gamers.

Brooks’s commitment to improving his life started drawing attention. The judge who oversaw his original trial wrote a letter in support of a reduced sentence, and former Colorado Governor Bill Ritter came to visit him in prison. Grode, the juror, as well as Brooks’s elementary school principal Joanne Benson, who is now a state senator in Maryland, have testified on his behalf many times.

“He has a heart of solid gold,” Benson said. “He’s wonderful, he’s low-key, he’s very calm. And knowing what he’s been through in his life, you would think he’d be out of control. Never. Just a kind, gentle soul. And for him to be caught up in this is just very heartbreaking.”

Grode visited Brooks in prison years after the trial and came away similarly impressed. “When you have no reason to be a decent person, and you know there is no way you are going to get out, and you choose a life to better yourself, to learn these languages, to go to school? You know he really just tried to be a good person. With no hope of getting out … And yet this is the path that he chose.”

Brooks, far right, with the over-40 basketball team he coached in prison.
Courtesy of Curtis Brooks

Brooks finally got real hope of a future outside of prison in 2016, when the Colorado legislature passed resentencing guidelines in response to U.S. Supreme Court rulings banning mandatory life without parole for children. The new guidelines allowed Coloradans serving juvenile life without parole to petition district judges for parole eligibility, which would be reached after 40 years served. But the bill went one step further, making the 16 people convicted of felony murder as children eligible for sentences of as little as 30 years, if the district judge agreed their cases showed “extraordinary mitigating circumstances.”

In March 2017, 22 years into his incarceration, Brooks petitioned district judge Carlos Samour for a lesser sentence. If everything went right—if Brooks received the shortened sentence, served his remaining time, and won over the parole board—with his “earned time” for discipline-free years, his lawyers thought he could be released as early as 2019, by age 40.

But everything did not go right.

Arapahoe County District Attorney George Brauchler asked Judge Samour to deny Brooks’s application, arguing that Colorado’s 2016 resentencing guidelines violated the state constitution by showing preferential treatment to people convicted of felony murder. In an October 2017 court order, the judge agreed, writing that Brooks and others convicted of felony murder could not legally receive shorter sentences than the rest of the state’s juvenile lifers, “no matter how poignant and tragic the defendant’s story may be.” But then in April 2018, right before Brooks’s resentencing hearing, Samour suggested he had changed his mind and would grant the shorter sentence. On the morning of the hearing, supporters filled the courthouse, including Brooks’s grandmother, Benson, and Grode.

But at the last minute, the DA asked the Colorado Supreme Court to halt Brooks’s resentencing, and to rule on the constitutionality of the resentencing guidelines. The state Supreme Court issued its ruling on Monday, deciding to uphold the state law. Brooks (and the 15 others serving life sentences for felony murders committed as children) now have a real chance at release.

Brauchler said Monday he would accept the ruling.

“The Supreme Court has now spoken, we know what the law is, and we accept that the ruling is now the law of our state,” he said in a statement. “It is important that we now see that Mr. Brooks is back in court as soon as possible for re-sentencing under the 2016 legislation.”

The felony murder doctrine is “one of the most widely criticized features of American criminal law,” the University of Buffalo School of Law’s Guyora Binder wrote in a 2011 law review article. “Some have concluded that felony murder rules impose unconstitutionally cruel and unusual punishment by ascribing guilt without fault, or that they violate conditional due process by presuming malice without proof.”

There’s no shortage of cases where people were convicted of felony murder despite no demonstrated intent to kill. In 1980, 18-year-old Orlando Stewart and nine other teenagers approached a stranger in Pennsylvania, planning to mug him. One of the teens hit the man, knocking him to the ground and causing a skull fracture that led to his death two days later. Stewart was convicted of felony murder and will remain in prison for the rest of his life.

In 2003, 20-year-old Ryan Holle loaned his car to his roommate, who proceeded to drive with several accomplices to steal a safe from an acquaintance’s house. When they found the woman at home, one of the accomplices beat her to death. Holle, who was miles away at the time, is serving life without parole in Florida.

And this April in Alabama, Lakeith Smith was sentenced to 65 years in prison, including 30 for felony murder. In 2015, the then-15-year-old burglarized two homes with several friends. When the police approached, one of the teenagers fired, and was shot and killed by an officer. Smith was convicted of the felony murder of his friend, based on the felony burglary he was committing when his friend was shot.

Felony murder rules disproportionately affect young people like Brooks, Stewart, Holle, and Smith, who are more likely to commit crimes in groups and are more impulsive than adults, increasing the chances someone in the group pulls a trigger. A law review article from 2017 described felony murder as “the quintessential juvenile crime, capitalizing on the developmental vulnerabilities of adolescents.”

Since 1980, the high courts or legislatures in Michigan, Kentucky, and Hawaii have eliminated felony murder rules, and Vermont, New Hampshire, New Mexico, Arkansas, and Massachusetts limited felony murder to those who act with reckless indifference to the risk of death, preventing accomplices like Curtis Brooks from being charged with murder. There has been some recent momentum for reform; in the current legislative session, lawmakers entered bills that would end felony murder accomplice liability in Pennsylvania and California. The California bill, which would allow people currently serving life sentences for felony murder to petition for resentencing, passed in August. It is now awaiting Governor Jerry Brown’s signature.

Binder, however, warns that felony murder isn’t going to disappear anytime soon. “There was a lot of excitement back in the early 1980s when the Michigan Supreme Court abolished it,” he said, but only a handful of states have followed suit since then. Binder believes reform efforts would be most effective by focusing on the most problematic aspects of felony murder rules, like the accomplice liability statute that escalated Brooks’s crime to murder.

“It’s really, really hard to create any kind of change when you’re trying to reform something that’s called felony murder. Those two words are incredibly scary,” said Alexandra Mallick, executive director of Re:store Justice, an advocacy organization that helped advance the current bill to limit felony murder in California. “So first what we found was that it was really, really important to educate people.”

“Secondly, there is the narrative that prisons are full of nonviolent drug offenders and that’s really where we need to push our efforts. That is completely wrong,” Mallick said. She notes that people who have committed a violent crime have some of the lowest recidivism rates. “Most of the time when someone commits a violent crime, they age out of it, they’ll grow up,” she said.

“Participating in this crime that ultimately led to somebody losing their life is absolutely wrong,” Brooks said. “But at that same time, I don’t want to hold that label of murderer, because I didn’t intend to kill anybody. I didn’t kill anybody. I didn’t want to be part of anybody dying. So for the law to say one is the same as the other one, to me, absolutely is unfair.”

Tom Raynes, executive director of the Colorado District Attorneys’ Council, said he understands that felony murder rules are controversial, particularly because they allow people to be convicted of murder without proving intent to kill. “Granted, I understand completely the departure from the mens rea requirement evident in nearly every other crime,” he said. “It is a unique animal.”

Yet Raynes still believes felony murder rules deter crime and ensure adequate punishment for ending a life. “The thought process is, if you engage in an activity that is so inherently dangerous that it is likely or very likely to result in the death of another person, you should be held culpable,” he said.

The available data suggest harsh punishments for felony murder do not actually function as a disincentive. A 2002 paper that analyzed state-level crime rates from 1970 to 1998 concluded that “the felony-murder rule does not substantially improve crime rates. If the main reason a state retains the rule is to reduce crime, it should reconsider the rule.”

“You can always find that case that kind of stands out,” Raynes conceded, such as an accomplice who was completely unaware the shooter had a gun. But prosecutors are not required to bring felony murder charges in these cases, he said. If the original DA in Curtis Brooks’s case had opted to charge the teenager with armed robbery, Brooks would have been released decades ago.

While prosecutors may not be required to bring felony murder charges, they have a lot to gain by doing so. “The felony-murder rule makes it easier for prosecutors to gain convictions because it relieves them of the often onerous burden of proving that the teenage defendant intended to kill the victim,” Steven Drizin, a professor at the Northwestern University School of Law, wrote in a 2004 law review article arguing for a ban against felony murder for teenagers.

“I came from a very conservative family, and it’s like, if you do the crime, you do the time,” said Grode, the juror on Brooks’s case. “But in hindsight, you start to see the wheels of justice and it really makes you question things.”

Illustration by Simone Noronha

In states without felony murder rules—or perhaps even in a different Colorado county with a different DA—Brooks would not have been charged with murder. Justice means something different from state to state, county to county, and even defendant to defendant. Of the three teenage boys arrested along with Brooks for the murder of Christopher Ramos in April 1995, two have been released. One of them, who was 13 at the time, was sentenced as a juvenile and served less than five years in detention. A 15-year-old, who like Brooks was not the shooter, accepted a plea deal of 48 years. He successfully applied for clemency in 2011, and was paroled in 2015. Those two accomplices are white. Brooks was not offered a plea deal, and his 2011 clemency application was rejected. Brooks and the shooter, who also remains incarcerated, are both Black.

“I’ve taken the attitude—not in a negative way—that the past is the past,” said Brooks. “I don’t hold anything against any of them. I’m here because of my own decisions. They didn’t force me into this, they didn’t make me do anything. This was my choice, this was my fault. I’m looking to move past that past and make something better than what I have behind me.”

Now that the state Supreme Court has upheld the law, Brooks is appealing for a new sentence from the Arapahoe County District Court. In the meantime, he submitted a new application for clemency to Governor John Hickenlooper, and is cautiously hopeful for a sentence reduction.

“I know it’s going to be a challenge, mostly because of the perception that people have of individuals that have been incarcerated,” Brooks said. “But I kind of thrive on challenges and I always look forward to them, so I have no hesitations or reservations about what I’m going to have to deal with.”

If he’s able to rejoin the outside world, Brooks is hoping to make a “drastic change” from his rocky adolescence. “Growing up, I was basically trying to hang out with the cool kids and just trying to … fit in and be accepted. For me now, getting out, I feel like I have the opportunity to elevate myself well above that. I want to have different experiences than I would have had with the people that I was choosing to associate myself with at that time. I’m fine with getting out and being the guy who says, ‘Hey do you want to go to this museum?’ or, ‘Do you want to go fall asleep in an opera?’ or something like that.”

If he is released, Brooks has a job waiting with Joanne Benson, his elementary school principal who’s now a Maryland state senator. “Whatever Curtis Brooks wants to do, we have the resources right here in the state of Maryland that’s going to help him move where he wants to go,” she said. “We are convinced that he is going to be a productive and wonderful citizen. There is no question in my mind.”

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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.”

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