The Evolution of Cuomo’s Push to Lower Pot Arrests

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Under current law in New York, possessing a small amount of marijuana is only a crime if it's in public view.  On Monday, Governor Andrew Cuomo put his political muscle behind a bill that would make that a violation, not a crime ― meaning you only get a ticket and pay a fine. Cuomo's sudden announcement took many by surprise, but it was a decision that had been unfolding for months.

Cuomo made the announcement backed by his own show of force — all five District Attorneys in New York City signed on, as did Mayor Michael Bloomberg and Police Commissioner Ray Kelly, who was in Albany for the announcement. 

An earlier version of this bill was actually introduced by two lawmakers last year, a couple weeks after a WNYC investigation suggested police were making unlawful marijuana arrests in mostly black and Latino neighborhoods.

The governor’s roll-out left some advocates of the bill — like Gabriel Sayegh of the Drug Policy Alliance — feeling like they woke up on Monday still dreaming. 

“I feel a little like I maybe got carried away by a tornado and landed in Oz,” Sayegh described.

It's no wonder Sayegh was feeling a little disoriented. The Bloomberg administration has long defended low-level marijuana arrests as a way to deter violent crime. More than a year ago, WNYC asked Commissioner Kelly whether his record numbers of marijuana arrests meant pot was a priority for the NYPD.

“Marijuana is against the law, or smoking marijuana,” Kelly stated then. “Officers encounter those situations on the street, they take action. If anyone thinks that's inappropriate, they should petition the state legislature to change the law.”

The WNYC investigation found the problem wasn't that marijuana was against the law — it was how the police were allegedly carrying out the law. More than a dozen men from the most heavily policed precincts told WNYC they were arrested for displaying marijuana in public view when their marijuana was actually hidden in their clothes. They claimed during a stop and frisk, police either ordered them to empty their pockets or pulled the marijuana out themselves before arresting them.

Cuomo touched on the issue at Monday’s announcement. “If you possess marijuana privately it’s a violation, if you show it in public it’s a crime,” Cuomo said. “It’s incongruous, it’s inconsistent the way it’s been enforced.”

Five months after WNYC’s investigation aired, Commissioner Kelly issued an internal order to the entire police department saying those kinds of arrests were not allowed under existing law.

In the months that followed Kelly’s order, marijuana arrests declined, but not substantially — about 14 percent, according to state data. But the commissioner’s directive was a gift to Assemblyman Hakeem Jeffries of Brooklyn. He had already introduced his bill that would decriminalize possessing small amounts of marijuana in public view. 

“The directive from Commissioner Kelly gave us the opportunity to make a strong argument to the Governor that there is recognition of the flawed nature of these arrests by the police department itself,” Jeffries said at the time.

Jeffries, along with Republican state Senator Mark Grisanti of Buffalo, continued pushing Cuomo to back their marijuana bill. They got a glimmer of hope in March. Cuomo helped carve out an exception to a new law:  people convicted for the first time of possessing small amounts of marijuana would not be included in the state's expanded DNA database. Sayegh said it was a huge clue to everyone lobbying for fewer marijuana arrests.

“That's a real clear moment, a definable moment where we know that the Cuomo administration knows this thing is wrong,” he said.

The momentum against unlawful marijuana arrests grew.

City Council Speaker Christine Quinn, who's considered a likely candidate for mayor, planned to pass a resolution next week denouncing unlawful marijuana arrests and urging Albany to pass the marijuana bill. 

Lobbyists tell WNYC that phone calls from the governor's office to legislators, law enforcement officials and advocates reached a fever pitch last Thursday, and those calls continued through the weekend. 

Cuomo's abrupt announcement about the marijuana bill on Monday was hailed by criminal justice experts. Many Albany observers expect the bill to pass. It will likely sail through the Democratic-controlled Assembly, and if Republican Senate Majority Leader Dean Skelos allows the bill to the floor for a Senate vote, Cuomo only needs two GOP votes. Grisanti, a Republican, is locked in since he was one of the bill’s original sponsors.

If the bill passes, Harry Levine, a Queens College sociologist, offered a warning: There may be fewer marijuana arrests, but he says we'll probably see tens of thousands more summonses issued for marijuana possession in the same precincts where people were previously getting arrested.

“So it will be young blacks and Latinos ― mostly men ― who are being given the summonses, just as it is mostly ― 87 percent ― of those who are being arrested now,” he predicted.

Levine says that racial disparity is no small deal, even if you're talking about summonses.  Even though studies show young whites smoke pot more, he notes, mostly young blacks and Latinos would be paying the hefty fines for marijuana in this city — about $100 per ticket.  And if they don't show up in court on the correct day to pay those fines, they could still be arrested.