By Josh Savitz, J.D. Candidate

In the wake of increasing public pressure, NYPD Commissioner Ray Kelly issued an Order last week commanding NYPD officers to follow existing laws about marijuana possession and what police can and cannot do with regard to searches and stop-and-frisk procedures. The Marijuana Reform Act—the current New York State law which was passed in 1977—makes possession of less than seven-eighths of an ounce of marijuana a violation instead of a criminal offense. Editorial, Trouble With Marijuana Arrests: Questionable police practices on minor possession charges merit deeper scrutiny, N.Y. Times, Sept. 27, 2011, at A26. A violation is subject to only a $100 fine for the first offense, whereas possession of any amount in public view is a misdemeanor punishable by up to three months in jail and a $500 fine. Commissioner Kelly’s Order does not actually change the law itself but rather instructs officers to follow the law, of which they apparently have not been doing the most satisfactory job in the past decade and a half.  But will an Order standing on its own be enough to end such a pervasive problem?

The Order is meant to address mounting pressure against the NYPD to reform the way in which its police conduct stop-and-frisk procedures and obtain arrests for low-level marijuana possession. Campaigns against the current marijuana possession police regime complain that there are too many arrests, that the arrests are discriminatory, and that the arrests themselves violate civil rights.

In March, the Drug Policy Alliance (DPA) found that arrests for marijuana possession cost New York City taxpayers $75 million annually. Press Release, Drug Policy Alliance. After the DPA report, NPR affiliate WNYC conducted an investigation released in April of this year that found that police officers may have been recovering marijuana on people through the use of illegal searches. WNYC found substantial anecdotal evidence to bolster claims that police were using illegal tactics: they tracked down more than a dozen men arrested after a stop-and-frisk for supposedly having marijuana in public view. Each man said the marijuana was hidden, and they each said that police pulled the drugs out of his clothes before arresting him for having marijuana in public view.

For a stop-and-frisk—a common procedure officers are employing to “find” marijuana in public view—to be legal, officers first need reasonable suspicion that the person is committing a crime. A police officer can pat down the outside of a person’s clothing only if the officer believes he or she is carrying a weapon. The officer can only actually search a person—that is, reach into his or pockets—if he thinks he feels a weapon. If the officer finds any hard objects, that does not give the officer the right to go into a pocket and search; the hard object must feel like a weapon. And if it is not a weapon, then the search must end there.

Problematically, it seems, officers do not understand the proper rules of a stop-and-frisk. Officers have been creating a crime, or at least a more serious infraction, when there was not one already.

Another strategy officers employ to game the system involves a simple command by officers: often when police stop and question a person, they ask him or her to “empty your pockets” or “open your bag.” Many people follow these orders even though they are not legally required to. If a person reveals marijuana from his or her pocket or bag, then it is open to public view and the officer can arrest that person. Harry G. Levine, a sociologist at Queens College who has done extensive research on this issue, says that public defenders and legal aid lawyers who have defended thousands of these cases estimate that between two-thirds and three-fourths of people arrested on charges of possession of small amounts of marijuana display it at an officer’s request. Elizabeth A. Harris,Police Memo on Marijuana Warns Against Some Arrests, N.Y. Times, Sept. 23, 2011, at A15.

In response to these concerns, Commissioner Kelly’s Order reads in part: “A crime will not be charged to an individual who is requested or compelled to engage in the behavior that results in the public display of marihuana.” Moreover, the act of displaying it must be “actively undertaken of the subject’s own volition.” Thus, the Order reminds officers that if marijuana comes into public view at the direction of an officer either when an officer pulls drugs out of a person’s clothes or a person is ordered by an officer to empty it out of his pockets, it is not a misdemeanor and instead should be treated for a much less harsh violation.

Too Many Arrests

Employing these procedures has led to exponentially increasing numbers of arrests over the past fifteen years, yet the decriminalization of marijuana laws in New York City have been in place for over thirty years. Only 34,000 people were arrested for marijuana possession from 1981 to 1995. But in the last fifteen years, 540,000 were arrested for marijuana possession. In 2010, 50,000 alone were arrested. There is also no evidence that more people are smoking marijuana today than in the 1980s.

Not only are there exceedingly high numbers of arrests for marijuana possession of late, but the arrests disproportionately affect young, male minorities. Harris, Police Memo. According to Professor Levine, on average over the past 15 years, 54 percent of people arrested for marijuana possession in New York City were black, 33 percent were Latino, and 12 percent were white. These racially skewed statistics glaringly manifest notwithstanding the fact that national studies tend to show that whites between the ages of 18 to 25 smoke marijuana at higher rates than blacks and Latinos.

It should be noted that the large numbers of minority arrests occur in the poorest neighborhoods where the highest rates of stop-and-frisk occur. Thus, blacks and Latinos are not necessarily more likely than whites to be openly smoking a joint in public, they are just more likely to get stopped-and-frisked.

Where do we go from here?

Despite the fact that the NYPD has been unable to come up with any hard evidence of crime reduction or improvements in public safety due to the massive numbers of arrests for marijuana possession, Commissioner Kelly has reiterated the position that arrests for having marijuana in public view have helped keep crime low. Recently a mayoral aide argued that such arrests have helped fight more serious crime. They also claim that it is impossible to single out any long-term reduction in violent crime from these arrests.

Proponents of the Commissioner’s new Order are still concerned exactly how police officers will change their behavior, especially in light of the pervasiveness of this problem. Critics are justifiably concerned that the Order does not do enough to curb such a system-wide problem that has been in place for such a long time. Currently, in the State Legislature, Hakeem Jeffries, a Democratic assemblyman from Brooklyn, and Mark Grisanti, a Republican senator from Buffalo, have sponsored a bill that would make open possession of small amounts of marijuana a violation instead of a misdemeanor. Harris, Police Memo.

But City Hall opposes this bill on the grounds that downgrading the offense, according to a mayoral aide, would “encourage smoking in the streets and in our parks, reversing successful efforts to clean up neighborhoods and eliminate the open-air drug markets like we used to find in Washington Square Park.” Harris, Police Memo.

While the Order is certainly a step in the right direction, it will have to be bolstered with other concrete mechanisms such as police training and possibly sanctions in order to stem the tide of such pervasive police behavior.