They Complain, We Respond: de Blasio’s Overwrought & Kelly-esque Defense to Racially-Skewed Marijuana Arrests on His Watch

A funny thing happened on the way to the new administration’s march towards removing New York City’s reputation as the marijuana arrest capital of the world: three years under Mayor de Blasio and the only people arrested of simple possession are still overwhelmingly black and brown.

Last month’s report, “Unjust and Unconstitutional: 60,000 Jim Crow Marijuana Arrests in Mayor de Blasio’s New York” by the Drug Policy Alliance and the Marijuana Arrest Project unveils a vexing problem for the city. The actual number of arrests for simple possession has gone down dramatically from the Mayor Bloomberg / Police Commissioner Kelly years – that’s the good news.

But the report painstakingly details the racialized nature of marijuana enforcement in the current administration, one that essentially mirrors the same pattern over decades. A full 86% of persons arrested for marijuana – over 52,000 – were black and Latino during the same time frame. Let’s close our eyes and pretend that whites don’t carry, purchase, sell, smoke, or openly smoke, marijuana in the Big Apple. Now open your eyes and face the reality that do so every day.

One little publicized fact in the report that didn’t escape my eye is the rate of arrests for Latinos in recent years. The report outlines yearly possession arrests by race from 1987 to 2016. In that time frame 738,227 arrests were made of which 11% were white, 53% were black and 33% were Latino. The highest year was 51,334 arrests (2000) under Mayor Giuliani; the lowest was 773 arrests (1991) under Mayor Dinkins; and the highest average was maintained under Mayor Bloomberg at 39,274 – almost double the rate under Mayor de Blasio.

But the highest all-time rates of possession arrests for whites in all those years rarely surpass a fifth of the volume (23% was the highest) whereas for blacks the record rates have exceeded three-fifths of the share and once reached 63% (!). For Latinos the highest rates hover just under two-fifths from 37 to 39% -- and all of these all-time highs were between 2013 and 2016. In other words, the highest rates of Latino arrests for marijuana have been matched or exceeded only in the de Blasio years.

Don’t close your eyes this time. Stay woke.

Under what set of circumstances feigned or veritable can these racial outcomes occur in a state that decriminalized possession decades ago? The Mayor’s office reports that for everyone, arrests are down and summonses in lieu of arrests for possession are up by a third on his watch. That’s laudable. But it’s still 60,000 overwhelmingly black and brown people who are exposed to a ruinous drug conviction and its collateral consequences. Arrests can lead you to Rikers Island – the hell hole that the Mayor eventually had to agree needs to be shut down.

But arrests in the police state that has been New York City exacerbate the consequences of broken windows policing. It’s no wonder that Politico reported that in 2016 in New York City’s Criminal Courts the rate of being convicted for marijuana possession is twice as high for blacks and Latinos than for whites. Undoubtedly, previous engagements with the system play a role in that racial disparity but, again, those prior arrests are themselves the product of racialized policing practices.

The Mayor’s office didn’t take kindly to the DPA/MAP report. Its rebuttal, “Drug Policy Alliance’s Marijuana Report is Misleading – Arrests for Possession Down by Over a Third” does not, and cannot, dispute the racially skewed arrest patterns. Yes, the numbers are down compared to Bloomberg / Kelly. They posit that 9,600 fewer arrests of black and Latino New Yorkers were made in 2016 versus 2013.

Again, that’s laudable. But remember who you’re comparing your record against. Nobody has lorded over the marijuana arrest capital of the world quite like Michael Bloomberg who not only admitted smoking it, but added that he liked it, hypocrite that he was.

And yet there is something eerily similar between what this Mayor is saying and what Bloomberg and Kelly used as one of their defenses to their signature and discredited policing practice: Stop & Frisk. We respond to community complaints of criminal activity, the argument goes, intimating that black and Latino complaints are driving the racial disparities.

“For every one New Yorker arrested for marijuana, two other New Yorkers have made a 911 complaint about marijuana use,” de Blasio’s office notes. In fact, the NYPD communications director provided journalist Kirsten West Savali with a “heat map” purporting to prove that link between where calls are made and where arrests were executed.

That was a mistake. West Savali’s article in The Root, “Jim Crow Laws Alive and Well in de Blasio’s NYC: Black and Brown People Still Targeted, Arrested at Higher Rates than Whites, Report Finds” was a beat-down. She tore apart the purported connection between complaints by black and Latino residents and arrests of blacks and Latinos – and then some. Some of her insights include: complaints and arrests in black and Latino poor and working class neighborhoods appear correlated but in the whiter parts of Brooklyn (Bensonhurst, Bay Ridge, Fort Hamilton, Bath Beach) complaints were made but arrests were not; and in Staten Island, by far the borough with the highest proportional white population, complaints were made in multiple neighborhoods but again, arrests were not.

West Savali also notes that the NYPD admits that they don’t just wait for complaints on the City’s 911 and 311 lines but that they also “proactively” arrest for marijuana possession in places where low-level crime occurs.

Pause right there. Bloomberg and Kelly spent years justifying the most outrageous forms of excessive policing in the country, both in the courts and in the court of public opinion, with these same arguments. And they lost miserably to the credit of the City’s black, Latino, Muslim, LGBT and civil rights communities.

When the third federal lawsuit was filed to stop this police abuse, the hallway Stop & Frisk challenge to trespass arrests in private apartment buildings, Ligon v. City of New York, I was a member of the team of attorneys. Kelly’s response to the press sought to highlight that the NYPD was responding to black and brown communities by arresting black and brown bodies for trespass. To paraphrase he said “I bet the attorneys for Ligon have doorman service because the NYPD is providing doorman service in black and Latino neighborhoods.”

Cute. First, I don’t have a doorman. Second, if I did he would recognize my ugly mug within days of me entering and exiting my home – something that the revolving door of NYPD officers never did as even graduate police cadets cut their teeth on how to conduct arrests by conducting them with no legal basis, snatching up black and brown bodies along the way.

By the time Floyd v. City of New York, the overall Stop & Frisk challenge by the Center for Constitutional Rights went to trial along with Ligon, federal judge Shira Scheindlin had heard this spin before – and she categorically rejected the City’s defense. The expert for the plaintiffs, Professor Jeff Fagen, concluded that police would check off “High Crime Area” on their Stop & Frisk forms in 55% of the cases regardless of the amount of crime in the neighborhood as measured by crime complaints. In short, the police were making it up. Judge Scheindlin accepted Fagen’s methodology and made two damning conclusions against the City.

First, the best predictor for the rate of stops in any geographic unit was the racial composition of that very same geographic unit – nothing else really mattered. Second, in any geographic unit – regardless of its racial composition – blacks and Latinos were more likely to be stopped than whites even when controlling for racial composition, crime rates, patrol strength, and other socioeconomic factors. She went ahead and cited the following excerpt from the trial testimony of Chief Joseph Esposito in response to the fact that many Stops & Frisks were made even when police were not looking for a suspect that fit a physical description:

Q: Do you believe the disparity in stop, question and frisk among black and Latino men is evidence of racial profiling?

A: No. I don’t believe that….Because the stops are based on complaints that we get from the public.

THE COURT: But there are many street stops that have nothing to do with complaints, right?

THE WITNESS: Correct.

THE COURT: It's observed conduct.... It's not based on a complaint of a victim.

THE WITNESS: It's based on the totality of, okay, who is committing the — who is getting shot in a certain area?... Well who is doing those shootings? Well, it's young men of color in their late teens, early 20s.

So when it’s complaints it’s an uneven response and when it’s observable it’s based on racial stereotype. No wonder Judge Scheindlin sided with black and Latino residents and ruled that the constitution forbids group-based suspicion.

Marijuana arrests stand in a completely different space because the rate of use is relatively even across all races in the City – or as the DPA/MAP report notes for lifetime use of marijuana nationally, whites exceed both blacks and Latinos. There’s no reason to suspect that these national rates do not apply in New York City. The Mayor’s office official response to that DPA/MAP report is both overwrought and dubious if prior legal challenges to over-policing are a guide. Admittedly, the assertion that a combination of neighborhood complaints and objective, proactive, observable police conduct is the driver of statistical arrest racial disparities for marijuana has not been tested rigorously.

But if the racial characteristics of who commits violent crime or possesses guns in the City couldn’t justify stopping and frisking innocent black and Latino New Yorkers it’s seriously dubious that a similar racial profile of marijuana use – where whites possess it at higher rates – could ever justify arresting black and brown people 86% of the time.

This form of racial profiling has to stop. And now. The best solution, eventually, is the legalization of marijuana in every facet: production, regulation, distribution and sale. It has to be done with restorative justice at the pinnacle of reform. It has to be statewide and it must be prospective and retroactive so as to ameliorate the past harms of a racist marijuana enforcement regime.

The current SMART campaign to legalize marijuana, now pending in Albany, is shaped along these lines. California has been leading the way in obtaining saner criminal justice policies – including marijuana legalization – while advancing restorative justice for people of color, especially, but for all persons who have been subjected to an unhinged prohibitionist paradigm.

Legalization is perhaps the best solution but it too must be monitored. The underground market will eventually recede. And sensible prohibitions will be placed on our youth. In short, disparities need to be tracked and addressed. In the words of Kassandra Frederique, the fierce sister from DPA in New York, “legalizing marijuana is not going to legalize communities of color.” That liberation from government discrimination will take more than a law – it takes all of us.

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