In 2014, Brooklyn’s new District Attorney Ken Thompson made national headlines when he said his office would decline to prosecute low-level marijuana cases, so long as the defendant had no serious criminal record and wasn’t selling the drug.
Noting that two-thirds of these misdemeanor cases wind up being dismissed, Thompson said they did nothing to promote safety and wound up hurting people of color, in particular.
“In 2012, over 12,000 people in Brooklyn were arrested for possessing small amounts of marijuana,” he said, during his inauguration. “Mostly young black men.”
Thompson died of cancer last autumn. He was replaced (at his own request) by his first deputy, Eric Gonzalez, who continued the marijuana policy.
But according to WNYC’s analysis, this supposedly groundbreaking change had less impact than many expected.
Using data from the state’s Division of Criminal Justice Services, WNYC found the Brooklyn DA was only slightly less likely to prosecute people for marijuana possession after Thompson took office in 2014. In 2010, almost 90 percent of arrests were prosecuted. That figure fell to almost 78 percent in 2014, and in 2016 roughly 82 percent of arrests were prosecuted.
In other words, most people are still going to court because the Brooklyn DA only throws out about one out of every five low-level marijuana arrests.
“I expected to see the number to be higher,” said Kassandra Frederique, New York State director of the Drug Policy Alliance, which supports marijuana legalization.
WNYC also found racial disparities among those who benefited most from the DA’s policy. Last year, the Brooklyn DA declined to prosecute fewer than 20 percent of misdemeanor marijuana arrests involving blacks and Latinos. By contrast, that figure was more than 30 percent for whites and Asians.
Scott Hechinger, a senior staff attorney at Brooklyn Defender Services, which represents low-income people, said he wasn’t surprised by any of this.
“It still felt like the people who we were meeting were predominantly black and brown,” he said, when asked what changed after 2014. “And it still felt like an enormous waste of time, energy and money.”
On a weekday morning in Brooklyn Criminal Court, 22-year-old Felix Iglesias sat on a bench talking with his public defender while waiting to see a judge.
Iglesias was arrested in July when police claimed he was smoking in a public park. He denied it, and said he was only playing a video game, but he acknowledged the officers found a joint in his bag. Iglesias said he was brought to a precinct and spent a few hours in a cell before police gave him a desk appearance ticket, meaning a court date.
"It’s depressing," he said, looking around the corridor at about 9:30 a.m. He was dressed in slacks because he was hoping to go straight to work after his appearance. But Iglesias figured he would still lose $40 to $60 that morning since he is paid by the hour.
"That’s MetroCard money," he explained.
Iglesias accepted the DA's offer of an adjournment in contemplation of dismissal (ACD), meaning his case would be dismissed in a year if he stayed out of trouble. In a rare move, his lawyer then negotiated to have the case closed even sooner so it wouldn't affect him when he applies for financial aid for college in December. Iglesias was relieved but still upset that he had to come to court.
"It’s a nonviolent crime," he said. "It’s not going to hurt nobody."
What Happened?
Gonzalez, the acting district attorney, has a theory for why most defendants are still prosecuted, like Iglesias.
“One of the things about our marijuana policy was that it was limited to possession cases,” he explained in an interview with WNYC. “What we think may be happening is that a lot of these arrests is public smoking of marijuana.”
In other words, the district attorney's office still prosecutes those caught puffing a joint in a public place. That’s something many people didn’t fully grasp in 2014 when Thompson announced the policy change.
Both smoking and possession are classified by the state as the same misdemeanor (criminal possession in the fifth degree), the most common low-level charge. There was no way to separate smoking from mere possession from the data provided WNYC. (Several people WNYC interviewed at Brooklyn Criminal Court said they were arrested for smoking in public, including a 17-year-old boy who claimed the police nabbed him in a case of mistaken identity. All of the defendants we met were black or Latino and young.)
Gonzalez, who is running to hold onto his position this fall, said he was troubled by WNYC's finding that blacks and Latinos are more likely to be prosecuted.
“I am committed to making sure my office does not contribute to racial disparities," he said. "If it takes me to be more aggressive in declining to prosecute more cases I’m willing to do that."
However, he said he would still prosecute smoking cases unless the law is changed because when someone is smoking in a schoolyard or near children, “the community is concerned about those activities.”
There’s another theory for the racial disparities. Even though there are fewer arrests now for marijuana possession, following changes in policing, blacks and Latinos account for 86 percent of marijuana arrests in New York City.
Studies have found they are no more likely to use the drug than other groups. But Hechinger, of Brooklyn Defender Services, said police enforcement is more aggressive in their neighborhoods.
“The statistical probability is you’ll been stopped many times in your life” and more likely to have a record, he explained.
Meanwhile, under the policy Thompson crafted in 2014, the DA won't toss out a marijuana case if the defendant has a serious criminal record.
John Pfaff, a professor at Fordham Law School, noted that prosecutors depend on the police.
"I think police do believe these low-level arrests are making things safer, and so it could be that Gonzalez agrees on that, and doesn’t want to take away what they are telling him is a tool for public safety," he suggested. Gonzalez is endorsed by the police officers union.
Public defenders and legalization advocates now say there is only one way to correct the racial imbalance. They want the DA to stop prosecuting all marijuana cases.
“This goes to a deeper need for us to talk institutionally about how the systems work for certain groups of people,” said Frederique.
But Gonzalez, the acting DA, argued that his policy is achieving positive results. Brooklyn declines to prosecute a greater share of cases than any other borough. He also said the DA’s policy put more pressure on the NYPD to make fewer arrests. Almost 17,000 people were arrested for low level marijuana possession in 2010. That number fell to 4,300 in 2016.
“We’ve moved a long way,” he stated. “I’m committed to continuing to look at this issue and figuring out, can we have a system in which no one gets arrested for marijuana use where there’s no public safety value?”
Where Other Candidates Stand on Smoking in Public
In response to our data analysis, four of the five candidates running against Gonzalez in the Sept. 12 Democratic primary told WNYC that if elected, they would not prosecute defendants caught smoking marijuana in public. The five — Ama Dwimoh, Marc Fliedner, Patricia Gatling and Anne Swern — cited the disproportionate impact on people of color.
"I will not prosecute ANY marijuana cases," said Gatling, the former city commissioner of civil rights. She and Fliedner said they also support legalizing marijuana in New York.
"I will also partner with state lawmakers to advocate for legalization of marijuana possession offenses," said Fliedner, the chief of the civil rights bureau at the Brooklyn district attorney's office.
However, Vincent Gentile, a city councilman from Bay Ridge, said he would continue the current policy of declining to prosecute possession cases while going after those who smoke marijuana in public.
But he added "the unequal way in which this procedure has previously impacted along racial lines must be investigated" and he pledged to review the racial disparities. The other candidates did, too.
Campaign rhetoric aside, experts say it's a bold call for any district attorney to decriminalize marijuana — even if it's popular with voters. Jocelyn Simonson, an assistant professor at Brooklyn Law school, noted that DA's have another constituency.
"Prosecutors and the police work together arm in arm on a day-to-day basis and really rely on each other," she explained. "So a lot of DA's really value, for good reason, their relationship between the NYPD and their offices."
