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Data Shows Percentage of Wrongful Marijuana Arrests Rose After Kelly's Order: Bronx Public Defenders

Thursday, March 29, 2012

Public defenders in the Bronx said more than 40 percent of the marijuana arrests they investigated in their borough between May and October 2011 show violations of constitutional rights and problems with evidence.  Many of these unlawful arrests, defense lawyers said, were made after an internal NYPD order was issued directing all officers to follow the law when making marijuana arrests.

The Bronx Defenders, a public defender organization in the South Bronx, and the law firm Cleary Gottlieb Steen & Hamilton LLP spent the past several months interviewing more than 500 clients arrested for low-level marijuana possession in every precinct in the Bronx between last May and October.  In a written statement issued Thursday, they concluded that more than 200 of the cases they studied present “clear constitutional and evidentiary problems stemming primarily from unconstitutional searches and seizures and improper charging of clients by the NYPD.”

Dubbed the “Marijuana Arrest Project,” the data collection by the Bronx Defenders is the first systematic, empirical study aimed at quantifying wrongful marijuana arrests.

The lawyers also said the percentage of wrongful marijuana arrests actually increased in the month following a September 19, 2011 order by Police Commissioner Ray Kelly that reminded officers to make proper marijuana arrests.  In the directive, which WNYC obtained last September, Kelly acknowledged that “questions have been raised” about the department’s marijuana arrests, including allegations that people are being arrested for possessing marijuana in public view only after marijuana is recovered when an officer orders someone to empty his pockets or reaches into the person’s pocket and pulls marijuana out.

Scott Levy, who heads the project, said their data demonstrates Kelly’s order did nothing to change police conduct, at least in the Bronx.

“For our clients, it’s very disheartening to see the disconnect between what they’re seeing reported in the news about the Kelly order and what they’re actually experiencing on a daily basis — the behavior that they actually see from police officers in their neighborhood,” Levy said.

The lawyers who conducted the analysis said that their data is based solely on interviews with clients.  There were no videotapes of any arrest, nor was there any other way they could independently verify their clients’ accounts.

The NYPD did not immediately return a request for comment.

In New York state, possessing a small amount of marijuana is only a misdemeanor if it’s burning or displayed in public view.  If marijuana is found inside someone’s clothes — a pocket, a shoe, underwear — the possession should be written up as a non-criminal violation, which means the person only has to pay a fine.

About 87 percent of people arrested last year for the lowest level marijuana possession misdemeanor were either black or Latino.  Police critics have for years said a large percentage of the marijuana arrests were unlawful because they involved an illegal street stop, an illegal search or charging people for a misdemeanor when they should have only been charged with a non-criminal violation.

The Bronx Defenders analyzed 121 arrests that occurred after Kelly's order.  Of those arrests, they said 53, about 44 percent, were the result of illegal stop-and-frisks, and 53 arrests were mischarged misdemeanors, meaning the defendant was accused of publicly displaying marijuana when the drug was actually inside the person's clothes when first confronted by the officer.  Before Kelly's order, the defense lawyers said about 33 percent of marijuana arrests were the result of mischarging.

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Comments [19]

Don Murray from New York City

Once again, the fact that a plausible argument (key word argument) might be made that might tend to suggest the possibility that a person's version of events is credible, is not a substitute for, nor is it equal to the rigor that would need to be in place before something could be called an "empirical study" and passed off as some sort of science. The fact that "most of them" are first arrests and they might "for the most part" be credible does not in my mind suggest a license to assume that any individual account must be true. If 121 people are "for the most part" credible, then how many are not credible? 60? 40? And how was it decided which ones were and were not? Furthermore, while it is nice to talk about the credibility of events related by people "in confidence to their attorneys" the reality is that clients, criminal defense clients and civil clients alike routinely lie to their lawyers for any number of ill advised reasons. When the stakes are huge and the client faces life crushing amounts of time in jail clients will inexplicably lie about silly things. Go figure.

I accept full well as an educated guess based on my experience as a criminal defense lawyer in NYC that all sorts of these marijuana arrests are nonsense. Nevertheless, this does not lead me to accept a preposterously unscientific study as a "systematic empirical study" simply because I want to agree with the conclusion.

This study was merely a compilation of anecdotes taken as gospel upon which legal conclusions were drawn by people whose job it is to advocate for a particular outcome.

Mar. 31 2012 02:08 PM
Mike Parent from 1 Police Plaza

Marijuana arrests, The low hanging fruit. Make enough stops and you're guaranteed an arrest, no risk and there is the $ubsequent overtime to process it. Most likely the case will get "plead out", so the officer can spend more time arresting more people, hence more overtime.

Mar. 31 2012 07:50 AM
Tom Hillgardner

The vast majority of people arrested for criminal possession of marijuana in the State of New York cannot tell you the legal distinctions between the misdemeanor of criminal possession of marijuana in the fourth degree and unlawful possession of marijuana, the violation which is not a crime. Most of them are young kids and for most it is their first arerst and tehir first encounter with the criminal justice system. When they relate in confidence to their criminal defense attorney the facts and circumstances leading up to their arrest, they have a great deal of cridibility for the most part based on the assumption that, as is most often true, the defendant has no knowledge of the legal distinctions sufficient to make up the right story. In any event, I am seeing just as many cases this month in Manhattan Criminal Court as I was seeing late last year that charge young persons, almost invariably of color, with the misdemeanor. But I just do not see that many people walking the streets smoking cannabis in public. That leads me to conclude that the NYPD continues to play games with stop and frisk and the marijuana laws.

Mar. 30 2012 07:37 PM
Stuart H. Tresser from Brooklyn, New York

I wrote a song about marijuana entitled: Let's Have Fun You can see it on my website: http://www.jazzbonerecords.com and print it out FREE! "Smoke a spliff and be gay!" I plan to record it soon and market it to people who smoke, have fun, and are gay.

Mar. 30 2012 07:35 PM
Don Murray from New York City

I am a criminal defense attorney, and I have to say that the thing that irritates me about this supposed study is how it seems to suggest that what is considered an illegal stop and frisk is some kind of easily understood up front item that can be checked off upon review of a checklist. As a criminal defense lawyer I understand what it means to be an advocate for someone and I am clearly sympathetic to the issues raised by the ways in which the police interact with the public. But I also think I know the difference between being an advocate and a scientist. This notion that they "identified" 53 cases of illegal stop and frisk is laughable. They are advocates not scientists. Presumably, they interviewed the accused and their friends. Presumably, the charging documents from the police did not check off the "Illegal search" box, and the criminal court complaint did not say, "As the result of my illegal search of the defendant...". Therefore, on 53 occasions, they just disregarded the police version of events. Now it could conceivably be that on each of those 53 occasions those police version should have been disregarded, but I would like to know what method or reasoning was used to automatically exclude the police version from being correct. If the accused yelled loudly enough he must be telling the truth? The notion that this was some sort of a "study" is downright laughable. There is no doubt in my mind that many things happen in the criminal justice system that ought not happen, and as a criminal defense lawyer I will be the first one to stand up to complain when wrong things happen. Nevertheless, the notion that this "study" has any scientific merit is outlandish.

Mar. 30 2012 05:35 PM
Smokewhitebiz from Chattanooga tn

I am a white 37 yr old who grew up in the white ghetto ( trailer park). I started my first biz when I was 20 years old, now I own three. I smoke weed every evening and will wake n bake on the weekends, love it!!! Some of these dumbass comments just shows why it is still illegal in most states. Did you parents not teach you to mind your own fuckin biz. Oh I forgot each one of you are an expert on weed, shut the fuck up and don't comment about shit you have no clue about. There are folks all over the world testing and doing studys on weed, but I guess they all should call you because you have it all figured out. Smh

Mar. 30 2012 04:14 PM
jorma ma from brooklyn

authoritarians are out in force. let big brother decide what's an acceptable drug. cops are always right. that's why they can break the law with impunity

Mar. 30 2012 01:02 PM
Ryan N

excellent article!!

Mar. 30 2012 12:09 PM

Marijuana is definitely safer than alcohol, or spice, which is why it should be legal. The State could control it, and fewer arrests.

Mar. 30 2012 11:28 AM
Get_real from NYC

The idea is to get the accused to take a plea and get hit with either a misdemeanor or a felony.
One the accused has a criminal record; he/she can not apply for City of State jobs. With this, the police and fire departments are as kept minority free as possible. The business of detention and prisons get more revenue and it becomes a vicious cycle.
Simple as that….where is the surprise?

Mar. 30 2012 11:14 AM
Tiff from NYC

So let me get this straight: in the month after a widely-publicized police announcement that the police don't want their officers improperly charging for certain marijuana offenses, more people charged with marijuana offenses told their defense attorneys that the police made the mistake they read about in the news, and defense attorneys want everyone to know about this?

How is this news, apart from a story about a ploy by defense attorneys to sway citizens in favor of their defendants, many of whom are obviously opportunistically seizing on what they read about in the news?

Mar. 30 2012 11:10 AM
john from office

Feffy Von Heffervererverer from De Broncks
Well stated, I think??

Mar. 30 2012 10:35 AM
john from office

Mr. marijuana, these kids dont need another drag on their lives and dont smoke once a week, it is every day.

Easy to talk about racism and being employed as a white dude, sitting in an office. Grow up poor in the ghetto and then try to get out after being a pot head. Marijuana does nothing for these youth.

Mar. 30 2012 10:30 AM
Feffy Von Heffervererverer from De Broncks

But John from Office, directionless young men of all races have to smoke pot to alleviate the pain of oppression. The fines they have to pay are making it difficult for them to afford new, more menacing tattoos.

I digress.

They smoke pot because they're oppressed. Because they smoke pot. Because they're oppressed.
Because they smoke pot. Because they're oppressed. Because they smoke pot. Because they're oppressed. Because they smoke pot. Because they're oppressed. Because they smoke pot. Because they're oppressed. Because they smoke pot. Because they're oppressed. Because they smoke pot. Because they're oppressed. Because they smoke pot. Because they're oppressed. Because they smoke pot. Because they're oppressed. Because they smoke pot. Because they're oppressed.

Mar. 30 2012 10:27 AM
marijuana is a safer alternative to alcohol from NYC

I am White professional and I smoke pot at least once a week. In fact, I know dozens of coworkers who do the same. However, none of us has ever been arrested because we are too light skinned to be stopped and frisked by the racist NYPD. We all work 50+ hours a week. I rather smoke than drink because marijuana does not cause a hangover, no addiction, and no cancer. Marijuana should be legal for adult's recreational use.

Mar. 30 2012 10:07 AM
john from office

Steve the whole point is to make the police look like Nazis, that is the point. How about people stop smoking pot, it does nothing for black and latino men, except make them stupid, unsuccessful and lazy. I know I know it is part of the culture of hip hop and I dont understand. Go back to bagging groceries please.

Mar. 30 2012 07:52 AM
steven from bk

When the mechanism of a study is to ask people charged with a crime whether the police were correct or not in charging them with that crime, and when the people conducting the study are the participant's defense attorneys, you can safely say that the study has no merit.

Mar. 30 2012 07:39 AM
Duncan20903 from Silver Spring, MD

Where the heck is “the LAW is the LAW, blah, blah, blah” crowd when authorities decide to break the law and violate their Oath? Up in the peanut gallery cheering that lawbreaking like the hypocritical partisan hacks that they are is where.

Mar. 30 2012 05:35 AM
Flying Junior from San Diego

Every marijuana arrest is wrongful if the amount involved is less than two ounces. How long has that old-school, liberal republican Nelson Rockefeller been dead?

Mar. 30 2012 01:15 AM

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