Marijuana: Brooklyn DA and New York police at odds on minor crimes

Brooklyn's new DA says his office will dismiss low-level marijuana crimes, which 'weigh down the criminal justice system.' But NYPD Commissioner Bratton says policing procedures will not change.

Brooklyn’s district attorney announced Tuesday that, starting immediately, his office will begin to dismiss most low-level pot possession crimes, simultaneously advancing the national acceptance of recreational marijuana use while creating a policy dissonance with the NYPD.

The district attorney, Kenneth Thompson, elected last fall after running a campaign critical of the New York Police Department’s controversial policy of stop-and-frisk, had already outlined in a confidential memo in April how he would use his power of prosecutorial discretion to dismiss such felony-level charges.

These include those charged with carrying up to two ounces of pot, or about two full sandwich bags, and those displaying the drug “in open view.”

Since then, District Attorney Thompson had been consulting with NYPD Commissioner William Bratton, pioneer of the “broken windows” theory, who believes a focus on low-level crimes creates a sense of law and order that then prevents more serious crimes. NYC’s top cop had been cautious, if cryptic, in his responses to the Brooklyn DA’s unilateral decision, which does not affect the city’s other four boroughs.

But on Tuesday, Thompson’s office made it official: “This new policy is a reasonable response to the thousands of low-level marijuana arrests that weigh down the criminal justice system, require significant resources that could be redirected to more serious crimes, and take an unnecessary toll on offenders,” the district attorney said in a statement.

Commissioner Bratton, however, while acknowledging Thompson’s prosecutorial discretion, said his department’s policing procedures will not change in Brooklyn. “[In] order to be effective, our police officers must enforce the laws of the State of New York uniformly throughout all five boroughs of the city,” Bratton said in a statement. “Accordingly, the Kings County policy change will not result in any changes in the policies and procedures of the NYPD.”

The tension in New York underscores a growing national ambivalence about the recreational use of marijuana. This week, Washington became the second state to issue licenses to grow and sell what users call “weed” for personal, recreational use, regulating the drug more like cigarettes and alcohol. Colorado did the same in January, and 23 other states and the District of Columbia have legalized marijuana for certain medical uses.

On Wednesday, the Obama administration unveiled its new national drug control strategy, which promotes alternatives to incarceration for many drug crimes. And while the administration says it has not stopped enforcing the federal ban on marijuana, last year Attorney General Eric Holder issued a memo clarifying eight areas of priority when prosecuting federal pot crimes and saying the Justice Department would mostly not interfere with state laws that decriminalized the drug.

But as in New York, federal law enforcement officials and local US attorneys have bristled at the policy, and many federal arrests have continued in pot-friendly states, including Washington.

This prompted the conservative-dominated House to approve a measure to defund any of the Obama administration’s efforts to interfere with state marijuana laws and enforce the federal ban – a vote that shocked many observers. In June, US Senators Cory Booker (D) of New Jersey and Rand Paul (R) of Kentucky, proposed a similar law in the Senate.

But this week the two senators, one a conservative libertarian and the other a progressive liberal, also introduced a bipartisan push in Congress to begin to ease back on the nation’s aggressive criminal stance on such low-level drug crimes – changes many conservatives still oppose.

Thompson’s unilateral decision in New York, however, is a significant change in the most aggressive pot-busting city in the world. Indeed, five years ago, those caught carrying just four ounces of marijuana faced a mandatory minimum sentence of 15 years in prison. The policy was then revised as the nation began its dramatic cultural shift in views about the long-illegal plant, still considered a dangerous Schedule I drug by the federal government, along with cocaine and heroin.

Though New York Mayor Bill de Blasio had also campaigned on a promise to change the aggressive tactics of the NYPD, his administration has still busted an average of 80 people a day for possessing small amounts of marijuana. In 2013, the administration of former Mayor Michael Bloomberg and Police Commissioner Raymond Kelly arrested an average of 78 people a day.

The vast majority, some 86 percent, are young black and Latino men who are arrested after being stopped and frisked – a tactic that has been greatly curtailed, but not ended under the de Blasio administration.

Though possessing just under an ounce of weed has been decriminalized in New York since the 1970s, when police order suspects to empty their pockets, they can make an arrest once the drug is “in open view,” a felony. New York cops consider this an important pro-active crime-stopping tool in high crime neighborhoods.

But since most surveys show that young white consumers of pot use it a rate similar to, if not greater than, their minority counterparts, a growing movement, from the progressive left and more and more the right, is beginning to view the overwhelmingly higher arrest and incarceration rate of minority marijuana users as unjust.     

“My office and the New York City Police Department have a shared mission to protect the public and we will continue to advance that goal,” Thomson said in a statement. 

Exceptions to the new policy include those who smoke in public places or around children, those with open arrest warrants, violent and repeat offenders, and suspected dealers.

Young teen offenders, however, will not have their charges simply dismissed, but will be sent to drug counseling programs.

“But as District Attorney, I have the additional duty to do justice, and not merely convict, and to reform and improve our criminal justice system in Brooklyn,” Thompson said.