Drug Law

New York City Alters Rules on Marijuana Arrests

| by Reason Foundation

By Jacob Sullum

This week New York Police Commissioner Ray Kelly, responding to criticism of the city's crackdown on pot smokers, issued a directive that instructs officers to stop arresting people for publicly displaying marijuana after tricking them into committing that offense. Well, that's not quite the way he put it. Here is what he said:

The specific circumstances in question include occasions when the officers recover marihuana pursuant to a search of the subject's person or upon direction of the subject to surrender the contents of his/her pockets or other closed container. 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....To support a charge [of public display], the public display of marihuana must be an activity undertaken of the subject's own volition. Thus, uniformed members of the service lawfully exercising their police powers during a stop may not charge the individual with [public display] if the marihuana recovered was disclosed to public view at an officer's discretion.

In New York state, possessing up to 25 grams (nearly an ounce) of marijuana is a citable offense akin to a traffic violation, but publicly displaying marijuana is a Class B misdemeanor. Research by Queens College sociologist Harry Levine suggests that New York City police routinely pad their arrest numbers by converting the former offense into the latter, either by removing marijuana in the course of a pat-down or by asking/telling people they stop to empty their pockets, backpacks, or purses. Kelly is telling them to cut it out.

Strange that it took so long. As Levine has shown, marijuana possession arrests increased dramatically under Mayors Rudy Giuliani and Michael Bloomberg, mainly as an outgrowth of a "stop and frisk" program that targets black and Hispanic neighborhoods. Not surprisingly, the arrestees are overwhelmingly black and Hispanic. In New York blacks are five times as likely to be arrested for marijuana possession as whites, even though survey data indicate they are no more likely to smoke pot.

Kelly's directive may be aimed at pre-empting a legislative solution. Assemblyman Hakeem Jeffries (D-Brooklyn) and state Sen. Mark Grisanti (R-Buffalo) have introduced a bill that would treat public display the same as possession for small amounts of marijuana, thereby reducing the opportunity for phony-baloney arrests.