Assessment of NYPD Report On Public Burning of Marijuana

By: David C. Holland, Esq. Executive and Legal Director, Empire State NORML

The Report by the New York City Police Department’s “Working Group” is more window dressing than an actual policy change. Rather, it appears to be an elaborate 20 page rationalization to continue the present enforcement protocol without any real progress on the policing front.  As of today, the policy continues to leave it to the relatively unfettered discretion in the hands of each officer to decide whether to issue a summons or, subject to a variety of exceptions, affect a full blown arrest for the public consumption of marijuana. The continuation of this policy certainly is better than the old days in that those issued a summons are not fingerprinted and face only a maximum $100 fine for a first offense. But, that is not the policy that the citizens of New York want or need.

Historically, the Report cites a 66% decrease in marijuana related arrests since change of enforcement priority and practice dating back to 2014. The Report makes clear through statistics and graphs that despite the significant drop in arrests, those arrests continue to dramatically impact people of color who comprised 86.9% of all marijuana arrests and disproportionately continue to suffer the negative collateral consequences of such an arrest. It further cites other jurisdictions like Colorado and other legalized states that still have endemic racial disparity in arrest rates despite the law enforcement policy changes. Such statistical anomalies must be addressed since New York City’s change in enforcement priority dating back to 2014 officially recognized that the burning of marijuana in public view had a negligible impact on the safety and quality of life NYC denizens.

But, the Report justifies the lack of any substantial policy change in 2018 on the fact that there is not a uniform consensus amongst the District Attorneys in each of the 5 boroughs of New York City regarding the prosecution of marijuana cases. The District Attorneys of Manhattan and Brooklyn have publicly announced that they will no longer prosecute low level marijuana offenses, but similar pronouncements are lacking from the DAs in the Bronx, Queens, and Staten Island.  As such, the lack of uniformity within the 5 boroughs leaves the NYPD without a single policy because of the differing law enforcement priorities in different neighborhoods. Therefore, NYPD apparently believes that it cannot improve upon its dated 2014 policy.

In reality, this rationalization is a Cop Out.  NYPD officers have for years been given lots of discretion during civilian encounters involving public consumption and that has led to vastly reduced number of marijuana arrests.  The Police Department can and should revise and develop a more comprehensive set of internal guidelines to further guide and constrain the officer’s discretion to issue summonses which in turn cause a further decline in the number of marijuana arrests in New York City.  While the Report calls for limited exceptions to the policy to permit arrests where matters of public safety and quality of life issues are at stake (lack of identification, open warrants, history of violence, and being on probation or parole), all internal measures should be taken to ensure that police/civilian encounters are designed to achieve the desire and goal of both NYPD and New Yorkers to greatly reduce the arrests for the public burning of marijuana.

David C. Holland, Esq.
Executive and Legal Director,
Empire State NORML