Jim Dwyer's New York Times Column Focuses On "Manufactured Misdemeanors"; Legal Aid Chief Comments On The Problem
MONDAY, MARCH 25, 2013

Jim Dwyer's Friday column in The New York Times focuses on "manufactured misdemeanors" and whether or not legislation will be enacted in Albany to stop needless arrests for possession of small quantities of marijuana. Steven Banks, the Attorney-in-Chief of The Legal Aid Society, told The New York Times that there was a drop in these arrests immediately after Police Commissioner Raymond W. Kelly issued an order in September 2011 directing officers not to arrest people unless they were actually displaying marijuana in public view but the arrests increased a year ago, which left The Legal Aid Society with no alternative but to sue the City to stop this practice. Dwyer's column focuses on a Legal Aid client who spent the night in jail after police searched him and found a marijuana cigarette. The Legal Aid Society was assigned to represent this client the next day when he was arraigned and at that time he was released when a Judge dismissed the case.

Dwyer's column noted that the arrests are called "manufactured misdemeanors" because carrying marijuana in a pocket or bag is not a crime, but a violation. The column reported on the fact that the Governor's proposed change in law to stop these marijuana arrests was not included in the recent State budget agreement but could be addressed during the remainder of the current State legislative session that ends in June.

In New York City, when people are either searched or told to empty their pockets, the marijuana becomes open to public display, and then the charge is a misdemeanor and New Yorkers have been subjected to a full arrest and up to 24 hours in jail pending their arraignment. During his final State of the City address in February, Mayor Michael Bloomberg said the City will no longer subject most individuals to a night in jail pending their appearance before a Judge for possessing small amounts of marijuana, and reaffirmed the City's support for the Governor's proposed legislation to treat the cases as violations. In response, The Legal Aid Society commented that we welcomed the City's change in policy and the City's continued support for Governor's legislation, which the Society is also supporting. The City's new policy is expected to go into effect at the end of this month.

In June 2012, The Legal Aid Society and the law firm of Davis Polk & Wardwell LLP filed a lawsuit in State Supreme Court to prohibit the New York Police Department from continuing to make unlawful marijuana arrests. State law requires that people who possess small amounts of marijuana that is not open to public view should be charged only with a violation and given a ticket to appear in court at a later date.

The New York Times
Out of One Gram of Marijuana, a ‘Manufactured Misdemeanor’
March 22, 2013
By Jim Dwyer

For marijuana smokers in the right neighborhoods, there is no need to go out for supplies. A dealer-businessman will come right to the door, sit at the dining room table and open a box that looks as if it could be used to display herbal tea choices in restaurants. This particular case, however, is used to show varieties of cannabis — weed — and the businessman will annotate the flavor and potency of his offerings. Bought and smoked behind closed doors, the pot in such transactions has almost no risk of attracting attention from law enforcement.

That was not the system used by Joseph Griffin, then 18, one summer night in the East New York section of Brooklyn. He walked a few blocks down Herkimer Street, made a purchase and headed back to smoke it at home.

“The plainclothes officers pulled up, and they asked me where I was going,” Mr. Griffin said. “I said, ‘Home.’ They jumped out. They was patting me down. He went into my pocket and found it. Then they put the handcuffs on.”

Mr. Griffin spent the night in one jail or another, taken from the precinct station to central booking and then to the courthouse in Brooklyn. Up to that point, his case had absorbed the energy of two police officers, a desk sergeant, a clerk who processed his paperwork and fingerprints, a driver who transported him to booking, other officers to secure him in the pen awaiting his appearance, a Legal Aid Society lawyer, an assistant district attorney, a court clerk and a court reporter to transcribe the proceedings.

Also, a judge, who instantly dismissed the case.

How much pot did Mr. Griffin have in his pocket that night?

“I had a blunt,” he said.

Just one?

“Yes,” he said.

How much did it cost?

“Five dollars,” he said.

A blunt, or marijuana cigarette, contains about one gram of marijuana, about the weight of a dash of salt. Mr. Griffin had been charged with the lowest-level misdemeanor on the books, Section 221.10, Subsection 1 of the New York State Penal Code. That statute makes it a crime to burn or openly display even small amounts of marijuana.

Since Michael R. Bloomberg became mayor in 2002, no crime has been more frequently charged: more than 440,000 people have been arrested solely on this misdemeanor charge. Whites use marijuana at higher rates than other racial groups, studies have found, but are rarely accused of “openly displaying” it. Depending on the year, 85 percent to 90 percent of those facing that charge are African-American or Latino. Most are under 20.

These are called “manufactured misdemeanors” because carrying marijuana in a pocket or bag is not a crime, but a violation. In New York City, when people are either searched or told to empty their pockets, the marijuana becomes open to public display, and therefore a misdemeanor.

These arrests are a tumorous outgrowth of the stop-and-frisk practices and are now broadly recognized as scandalous. No public official defends them. Yet they remain out of control.

The police commissioner, Raymond W. Kelly, issued an order in September 2011 telling officers not to arrest people unless they were actually displaying the marijuana. The arrests briefly dropped, but were back in high gear for most of 2012, said Steve Banks, the lawyer in charge of the Legal Aid Society, which is now suing the city.

Every district attorney in New York City, Mr. Kelly, Mr. Bloomberg, the state sheriffs, and every other major law enforcement agency have endorsed changing the law to make it a misdemeanor only if a person were actually burning — smoking — the pot. The changes were proposed by Gov. Andrew M. Cuomo.

Nevertheless, it became clear on Thursday that the law would not change during the meetings of the Legislature to decide a state budget.

The proposed reforms “got caught in the horse trading and political posturing,” Assemblyman Karim Camara, a Brooklyn Democrat, said. At one point, he said, the Senate Republicans offered to permit a vote on the marijuana reforms in exchange for increasing the number of bullets allowed in an ammunition magazine, to 10 from 7. “I think it’s unconscionable,” he said.

Almost all of the misdemeanor marijuana arrests are in New York City. “The way it is being viewed here is that the city should correct its problem,” State Senator Martin J. Golden, a Republican representing Brooklyn, said.

Although he does not want the state to “send the wrong signals” on a substance that is far more powerful than it was a decade ago, Mr. Golden said change appears inevitable. “I do believe if it hit the floor of the Senate, it would pass,” he said.