BDS TESTIFIES BEFORE THE NYS ASSEMBLY HEARING ON LEGALIZING & REGULATING ADULT SALE AND POSSESSION OF MARIJUANA AND ITS PROSPECTIVE EFFECTS ON PUBLIC HEALTH AND THE CRIMINAL LEGAL SYSTEM
Scott Hechinger – Senior Staff Attorney and Director of Policy
BROOKLYN DEFENDER SERVICES
Written with: Jared Chausow (Senior Policy Specialist), Kaela Economos (Community Office Social Work Director), Nila Natarajan (Senior Staff Attorney – Family Defense Practice), and Bill Bryan (Supervising Attorney – Civil Justice Practice)
The New York State Assembly Committees on Codes, Health, and Alcoholism and Drug Abuse
Hearing on Legalizing and Regulating Adult Sale and Possession of Marijuana
and its Prospective Effects on Public Health and the Criminal Legal System
January 11, 2018
My name is Scott Hechinger and I am a Senior Staff Attorney and the Director of Policy at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy in nearly 40,000 cases in Brooklyn every year. This includes thousands of people arrested for marijuana possession or sale, or fighting deportation, eviction, or a loss of parental rights due to marijuana-related allegations or convictions. I thank the New York State Assembly Committees on Codes, Health, and Alcoholism and Drug Abuse, and in particular Chairs Lentol, Gottfried and Rosenthal, for inviting us to testify on legalized and regulated adult sale and possession of marijuana and how it would affect New York’s public health and criminal legal systems. I also thank the Chairs for their years-long efforts to reform New York State’s drug laws.
BDS is proud to support the Drug Policy Alliance’s (DPA) StartSMART campaign to legalize and sensibly regulate adult marijuana use and sale. The immense harms of prohibition and discriminatory enforcement practices, balanced against the opportunity for advances in racial justice and economic empowerment envisioned by this campaign, warrant urgent action by state legislators and the Governor. The Marihuana Regulation and Taxation Act (MRTA), S.3040/A.3506, sponsored by Senator Liz Krueger and Assembly Member Crystal Peoples-Stokes, would create a well-regulated and inclusive marijuana industry, improve public safety, and meaningfully repair some of the damage caused by existing drug laws.
NEW YORKERS NEED AND WANT URGENT REFORM
There is broad popular support for this legislation. Across the country, a large majority (64%) support full legalization of marijuana; this includes a slim majority of Republicans (51%). A recent Emerson College poll showed two to one support for legalization among New York State residents. Yet more than 800,000 people have been arrested for low-level marijuana possession over the past 20 years. The vast majority were people of color, despite government surveys showing equal or greater use by white people. Untold numbers of people are being detained and deported by ICE, losing their children to foster care, or suffering eviction from subsidized housing, in whole or in part, because of marijuana prohibition. Meanwhile, states with legal marijuana markets are benefiting from more than $1 billion in new—or newly above-ground—economic activity and hundreds of millions of dollars in taxes and fees every year., With a looming $4 billion budget deficit, and an average of nearly 60 people arrested for low-level marijuana possession every day, the time to act is now.
SHARP AND PERSISTENT RACIAL DISPARITIES IN MARIJUANA ENFORCEMENT
A report commissioned by the Drug Policy Alliance examining the 60,000 low-level marijuana possession arrests in New York City in the first three years of the de Blasio administration found that 86% involved Black or Latinx people—a racial disparity that has remained roughly constant for decades. This follows deliberate policing strategies targeting both neighborhoods in which people of color are a majority of residents and individual people of color within majority-white neighborhoods. In 2016, the NYPD arrested 362 people in West Harlem for this offense, yet only 14 in the Upper East Side, which has more than three and a half times as many residents. Of those 14 arrests, 50% involved Black and Latinx people, despite these groups making up only 10% of residents. Throughout Manhattan, Black people are 13% of the population and 45% of the people arrested for this offense, amounting to ten times the arrest rate for white people. In fact, more Black people were arrested for this offense in Manhattan than white people citywide. Across the East River, in the Mayor’s home neighborhood of Park Slope, Black and Latinx people comprise 24% of residents and 73% of those arrested for this offense. When white people are arrested, they are significantly more likely to have their cases dismissed by District Attorneys, and cases involving Black and Latino people are approximately twice as likely to end in a conviction compared to those involving white people. Of course, these disparities extend to arrests for allegations of marijuana sales. Of the 80 people arrested for the lowest-level marijuana sale charge (Criminal Sale of Marijuana in the 5th degree) in New York City in 2016, only 1 was white. 94% of those arrested for the more common Criminal Sale of Marijuana in the 4th Degree were Black and/or Latinx, despite research showing users typically buy drugs from their peers.
None of this is surprising to me. In my six years as a public defender, I cannot recall representing a single white person on a marijuana charge.
THE VIEW FROM KINGS COUNTY CRIMINAL COURT
As a public defender, I meet my clients on the brink of crisis, generally within 48 hours of an arrest. Many of the most common cases I handle involve allegations of jumping a turnstile, possession of a crack pipe, driving on a suspended license, stealing essentials like a bar of soap, trespass (often shelter-seeking) or, despite years of pronouncements by policymakers and prosecutors to the contrary, low-level marijuana possession. The Brooklyn District Attorney’s office received a lot of attention for announcing that it would decline to prosecute most low-level marijuana possession cases; in reality, the office prosecuted 83% of these cases in 2016. Likewise, Mayor de Blasio has made pronouncements about ending most low-level marijuana possession arrests, yet the NYPD made three times as many such arrests during his first three years in office compared with the first three years of the Giuliani Administration, with roughly the same sharp racial disparities.
The gulf between the rhetoric of policymakers in the city who could make a difference and the reality we see in court underscores the need for legislative action. Yet, even if the police did stop arresting and prosecutors did stop prosecuting most incidents of low-level possession, the criminalization of marijuana alone would continue to drive broken windows policing. The oft-claimed “odor” of marijuana or alleged observation of smoking is one of the most common justifications officers use to justify unconstitutional stops and frisks, or turn pre-textual car stops into full blown searches. Much like allegations of failure to signal, odor of marijuana is notoriously difficult to disprove in court, hence the commonality of its use as a pretext.
By the time I first meet the people I represent, they have been stopped and frisked or pulled over, cuffed and ripped from their communities, and detained overnight in putrid holding cells. The vast majority are people of color. They tell me about illegal searches by the police. They express fears of missing or losing work, getting kicked out of school or losing student loans, leaving young children without caretakers, and surviving without much needed medication. If they are immigrants with or without lawful status, they express fear of ending up on ICE’s radar. Simply put, they are often terrified or angry or both. After we speak, they are led into the courtroom shackled to other people, assigned bar codes and their retinas are scanned.
Once in court, most low-level marijuana possession cases in Brooklyn resolve very quickly with no criminal sentence. This is why court watchers often say “the process is the punishment.” After formally charging people, prosecutors generally do not seem to care about marijuana. However, the absence of a criminal sentence does not mean there is no additional punishment. Beyond the harm that can happen between arrest and arraignment, cases that result in an Adjournment in Contemplation of Dismissal (ACD)—2,733 of 4,326 total cases in in Brooklyn in 2016—remain open and visible to prospective employers and landlords for six months to a year. Cases that result in non-criminal violations trigger costly court surcharges and erect legal barriers to civil lawsuits for police misconduct. Cases that result in misdemeanor convictions result in even steeper surcharges and often permanent criminal records. Importantly, I can only speak to marijuana cases in Brooklyn; in other parts of the state, where jail populations have doubled while that of New York City jails has shrunk by half, people may be much more likely to suffer pre-trial detention on bail or Misdemeanor jail sentences. Either way, there is no evidence to support the notion that punitive responses actually decrease marijuana use. (In fact, since legalization, marijuana use by teens has decreased in Colorado.)
[Note: All client names have been changed, except in the first case, which involves a client who voluntarily shared her story with the media.]
Colyssa Stapleton went downstairs from her apartment to pick up baby formula from her former partner. She was there for less than 30 seconds when an undercover officer approached claiming that he smelled marijuana on her person. When she told the officer that she had not been smoking, and that she needed to get back upstairs to care for her seven month-old child, he arrested her and called ACS. Her child was placed in foster care and she was charged with marijuana possession and endangering the welfare of a child. Even though drug tests came back negative, it took more than a year for Colyssa to regain full custody of her daughter; she missed her baby’s first steps and her first tooth. Colyssa is Black and 25. Her story was featured in The New York Times.
Mr. F’s car broke down on a roadway. An undercover cop pulled over and helped jump his car. The cop then asked Mr. F if he had any marijuana. Mr. F, feeling gracious for the help, went into his car and pulled out a small amount of marijuana that he had for personal use from his backpack and gave it to the undercover. The cop then arrested him and charged him with sale and possession of marijuana. Mr. F is in the Army Reserves, has no record, and was not the target of any lawful search. He was only trying to thank someone for helping him out. Mr. F is Black and 23 years old.
Ms. R was illegally searched and found to have a small amount of marijuana. She also had an open summons warrant for having an open container of alcohol that she had failed to pay. Police arrested her and detained her overnight. Her BDS attorney was able to secure an ACD, but the case was slated to remain open for a year. Recently, Mr. R learned that the company for which she works conducts random background checks and she is at serious risk of losing her job. Now, her attorney is working to get the ACD immediately sealed, but it is unclear whether the court will grant it. Ms R. is South Asian and 22 years old.
Mr. P was stopped by police as he left the NYCHA building where he lives as a tenant of record based on an outdated trespass notice issued 11 years earlier. Police found a small amount of marijuana on him and arrested him for trespass and marijuana possession. He was detained overnight. The case resolved with an ACD but Mr. P was forced to do a day of community service. Mr. R is Black and 38 years old.
Mr. H was arrested along with his entire family by a notoriously unscrupulous NYPD Detective based on an apparently bogus search warrant. This Detective’s prior misconduct had led to 17 settlements totaling more than $1.2 million, each one involving him entering a private home under the guise of searching for narcotics, and he had been found not credible by a Supreme Court Judge. One settlement involved the choking death of a 49 year-old father of three. After lab results showed that the materials this Detective allegedly obtained from the house were not in fact controlled substances, prosecutors continued to charge Mr. H for the small amount of marijuana that was recovered. After further litigation, Mr. H’s BDS attorney was able to resolve the case with an ACD and immediate sealing, but the marijuana charge had allowed the government to continue harassing our client for some time even after we debunked the original charges. It is worth noting that if prosecutors had turned over discovery materials at the outset of the case, this case almost certainly would have been resolved with the same final outcome almost immediately. Instead, Mr. H’s time and emotional well-being, along with substantial taxpayer dollars and scarce court resources, were wasted in the cover-up of the case’s fatal flaws. Mr. H is Black and 23 years old.
Mr. S had saved up more than $10,000 while cutting hair and doing other odd jobs throughout his life with no arrests. In 2015, police executed a search warrant at his apartment and allegedly found marijuana. They arrested one person in the apartment, issued a summons to another, and stole Mr. S’ life savings. Mr. S was not charged with a crime. Mr. S had tried to recover the money for approximately six months, regularly contacting the Civilian Complaint Review Board and the NYPD’s Property Division, when suddenly the NYPD materialized an I-card warrant for his arrest that supposedly dated back to the time of the search. Finally, the NYPD Legal Bureau provided him with a signed and authorized property release, but when he went to claim his property, he was arrested and charged with numerous counts of marijuana possession. As Mr. S’ criminal defense attorneys at BDS fought these charges, he also faced eviction proceedings from NYCHA housing. We were able to get the criminal case dismissed, but he still has not been able to get his money returned. In this case, too, prosecutors’ failure to turn over discovery prolonged the case substantially. Mr. S is Black and 33 years old.
THE VIEW FROM KINGS COUNTY FAMILY COURT
BDS represents over half of all parents in child welfare cases in Brooklyn, one of the busiest family courts in the country. Collateral consequences of marijuana use and arrest often extend to parents and children involved in family court. Although New York State law does not allow marijuana use to be the sole basis for removing a child from a parent or denying that parent custody privileges, BDS sees these consequences in family court every day.
Contrary to popular perception, many of drug use allegations against parents we represent involve marijuana. Family Court, the Administration for Children’s Services (ACS), and the law make little to no distinction between recreational use and abuse of drugs. While marijuana use is less often the cause for the initial filing of a neglect petition, or the removal of a child, it can often be used as a barrier to reunification, favorable or quick settlement of a case, or ending supervision. We believe it is often used as a way to impose moral judgment on our clients—a reflection of class and race-based prejudices. Moreover, the vast majority of our clients, who are poor and often people of color, live in shelters, public housing, and/or highly-policed neighborhoods that make them extremely vulnerable to government surveillance of marijuana and other drug use.
Poor parents who come into contact with the child welfare system are frequently asked to submit to drug testing even when there is no drug use alleged in the initial prompting of the ACS investigation and there has been no court case brought against them. If a parent does not agree to drug testing, even early on in the investigation process, a negative inference may be drawn against them. If a parent does submit to a drug test despite there being no drug use allegations, even if that test comes backs negative, that parent’s time, resources and right to privacy have been undermined.
The majority of our clients utilize public hospitals for labor and delivery. It is not uncommon for our clients and their newborns to be drug tested at birth, often without their knowledge. Our understanding is that the Health + Hospitals’ policy only requires verbal consent to drug testing during or after labor, but many mothers who have been tested at a hospital report that they were not asked permission for testing on themselves or their babies. Racial disparities have been well documented at many points in the health care delivery system, and we know that mothers of color are more likely to be drug tested in child birth than white mothers.
Parents involved with ACS who admit to using marijuana recreationally or who have only one positive marijuana test have been asked to participate in drug treatment. Depending on the treatment center, parents may be expected to go to treatment several times per week for a couple of hours each time, or to continue to submit to random testing for an indefinite period of time, even after having several negative drug tests. Parental marijuana use has been used to justify or advocate for minimal or restrictive visitation time with children, despite laws requiring proof that drug misuse is directly impacting a parent’s ability to provide adequate supervision or meet children’s basic needs.
The impacts of marijuana prohibition on mostly women of color in family court must be considered in the context of op-eds in The New York Times by white men proclaiming the benefits of illegal marijuana use in parenting or enduring cancer treatment.,
The MRTA would protect parents from being ensnared in the criminal legal system for personal marijuana possession, erase many of the re-entry barriers that inhibit employment, education, and personal growth for people who have already been criminalized, and redirect scarce public funds toward public health and education resources that strengthen families. Furthermore, as DPA has written, the bill would help “[p]revent unnecessary denial of custody, visitation, or parenting time by requiring clear and convincing evidence of unreasonable danger to the safety of a child that is not solely based on the presence – or non-pertinent details – of a parent’s marijuana use.” Ultimately, we believe a culture shift to end the hyper-stigmatization and kneejerk condemnation of parents of color who use marijuana or other drugs is needed, and we hope that that could be engendered, in part, by legalization.
Ms. C’s child was removed by ACS and we are currently litigating to have the child returned. Ms. C is compliant with all services, attends visits, and was observed lovingly bonding and interacting with her child. However, because Ms. C tested positive for marijuana, ACS argued that the child should not be released to her. Otherwise, she would almost certainly be reunited with her child, and the case would be on track for closure. This is an example of the way marijuana use among marginalized people is pathologized and penalized, even as its use by the broader public gains mainstream acceptance.
THE VIEW FROM IMMIGRATION COURT
For many years, the Assembly has worked to support and protect immigrant New Yorkers, most recently by passing the Liberty Act bill package last year. The most impactful way for the State to reduce the likelihood of Immigration and Customs Enforcement (ICE) arrests, detention, and deportation is to minimize immigrant New Yorkers’ contact with the criminal legal system. An arrest even for the lowest-level violation can lead to deportation, broken families, and broken communities. Under the Secure Communities program, a federal mass-deportation regime, all fingerprints taken by the NYPD and other local law enforcement agencies are automatically provided to the FBI and ICE. The NYPD’s high-arrest policies, including for marijuana and other drug possession, thus effectively provide the federal government with ready-made lists of thousands of immigrant New Yorkers whose humanity, family and community ties, and even lawful residency may be undermined simply because they bear the label of “criminal” for the most paltry alleged offenses. ICE collects information gathered through arrests regardless of whether the District Attorney declines to prosecute a case, a case is still pending so has no final resolution, all the charges are dismissed, or a case results in a non-criminal violation. That is why we say immigrants are doubly punished in our criminal legal system.
To be clear, we are not only talking about undocumented immigrants. New Yorkers with lawful status such as green cards, asylum, or student visas can lose their status and be deported if they are convicted of most drug offenses, including many marijuana offenses. Others who currently lack lawful status may be able to obtain it, however this possibility may evaporate upon conviction of any drug offense.
It must be noted that the aforementioned racial disparities in marijuana enforcement are particularly harmful to immigrants of color. BDS believes the only way to end these disparities, and to protect New Yorkers from being deported for marijuana offenses, is to end marijuana prohibition altogether.
Mr. L was born in Jamaica but is a longtime green card-holder who has worked the same job in Queens for more than a decade. He has a US citizen son. He is now facing deportation and is ineligible for discretionary relief only because of a few misdemeanor marijuana possession convictions from more than 15 years ago. Barring a pardon from Governor Cuomo, which we will be requesting shortly, he and his family will likely be torn apart. He is Black and in his mid-40’s.
EVICTION, HOUSING INSTABILITY, AND MARIJUANA PROHIBITION
BDS’ Civil Justice Practice assists clients with a wide range of so-called collateral consequences stemming from justice system involvement. Many of these individuals and families, disproportionately people of color, see their housing stability or future housing options severely curtailed by low-level marijuana arrests or convictions.
The most common marijuana-related consequences we see are those having to do with NYCHA, HPD, and HUD apartments and other federally subsidized housing programs. Our clients routinely have their applications for subsidized housing denied based on past marijuana convictions or currently pending cases; face termination of tenancy proceedings based on marijuana arrests or convictions; or are forced to exclude loved ones from their households based on these arrests. Under current NYCHA policy, for example, an applicant for public housing with a misdemeanor marijuana conviction would be ineligible for public housing for three or four years from the completion of their sentence. For residents, any drug arrest of a household member, or the arrest of anyone visiting the home, will result in termination of tenancy proceedings being brought against the head of household. While these subsidized housing policies are based upon federal regulations that would not change with the MRTA, legalization would end the arrests and prosecutions that currently lead to these disastrous consequences.
Marijuana enforcement also affects private housing options. In housing court, it is not uncommon to see clients facing eviction due to lease violations or violations of prior probationary stipulations based solely on marijuana arrests. Further, it is not uncommon to have a landlord inform the court that they are refusing to renew a lease or to grant a tenant more time to pay due to allegations of marijuana use in their apartment. Landlords seeking to evict their tenants, perhaps to legally or illegally deregulate the apartment, sometimes call the police for interventions in instances of low-level offenses like marijuana use.
Marijuana criminalization also has an indirect but important impact on housing stability, as any criminal, family, or immigration court involvement can prevent our clients from making it to work, school, or job interviews—and thus adversely impacts their ability to pay rent. Lastly, such court involvement may reduce families’ household size, directly affecting eligibility for public assistance and housing subsidies.
ASSET FORFEITURE AND MARIJUANA PROHIBITION
Given the widespread use of marijuana, the current state of prohibition offers police ample opportunity to engage in civil asset forfeiture. There is a common misconception that all property seized and forfeited by law enforcement belongs to people convicted of crimes and that it has been used in, or gained through, commission of a crime. The reality is that this process begins at arrest, at a time when the owner is presumed innocent, and these funds and assets are most often retained without court oversight and without due process. BDS’ Civil Justice Practice works case by case to advocate for justice, but the policing-for-profit industry continues. Even clients who can prove that their property was not used for illegal activity often settle—that is, they pay the police to get their own stuff back—due to the coercive dynamics and burdensome procedures described in detail below. It is very difficult to advise a client, even one with a good case, not to pay for an expeditious and guaranteed return of their property. Because settlements are only approved if the client signs a “hold harmless” agreement, preventing any civil lawsuit against the City for abuse of civil forfeiture, there are no realistic avenues to challenge the underlying practices in court. For our clients, the cost is simply too high. Fighting to protect their rights means suffering the unrecoverable loss of time, wages, missed medical appointments, stable housing and more. The reality is that only clients who cannot afford to settle end up pursuing their right to due process and pushing back against the City’s fundamentally unfair policies.
Example #1 – Property with no nexus to alleged offense
The first example involves the seizure of a car that was not in use, and not even in our client’s possession, at the time of arrest. Our client, John, was a passenger in a friend’s car when it was stopped because an officer alleged the driver had two earpieces in his ears while driving. The stop resulted in a search and John was charged with sale and possession of marijuana. That car was seized during the arrest, but the property collection did not stop there.
At the time of arrest, the NYPD asked if our client owned a car. They took John’s keys and wallet. They drove nearly four miles from the site of arrest to John’s house, knocked on the door, told his younger brother that they had received a phone call that the car was blocking the driveway and seized and held that car, as well. At the station, John was told that if he did not cooperate with their investigation of the drugs found in the first car, he would not get his own car back.
Due process gave our client the right to a “prompt” hearing, called a Krimstock hearing, for the car’s return during the pendency of the criminal case and any civil case. Indeed, shortly after his arrest, the NYPD informed John of this right to a Krimstock hearing and explained they would settle the case for $1,000 and a release from liability. Urgently needing his car to commute to and from his job on Long Island but unable to afford the steep settlement fee, our client requested the hearing. However, his hearing was postponed indefinitely when the Assistant District Attorney (ADA) in the criminal case secured an ex parte retention order for the vehicle, effectively ensuring our client could not take advantage of his due process rights to a prompt post-deprivation hearing.
Six weeks after the arrest, the ADA released the car, demonstrating that, in fact, they did not need the car for evidence, and our client was once again permitted to pursue its retrieval with the NYPD. Yet despite the absence of a criminal case related to the car, the NYPD continued its civil forfeiture case. The NYPD was unwilling to provide any basis for their retention of his car or explain how this car was connected to an arrest that occurred in another car miles away. John could have requested a new Krimstock hearing, waited up to 20 days for it to be scheduled, and even if it were successful, he would still be facing a civil forfeiture case in state court that could take months to resolve. In the end, he paid a $500 settlement to get his car back.
Example #2 – Cash Forfeiture
These difficulties and delays are not unique to vehicle forfeiture. We see similar problems with cash forfeiture as well.
For example, Maria was arrested with a co-defendant for possession of marijuana. At the time of arrest Maria had her phone and about $500 cash on her; the co-defendant had no money. When our client was first brought to the precinct, she saw that the phone and cash were vouchered under her name. After Maria was offered and accepted an Adjournment in Contemplation of Dismissal (ACD), she began the process of retrieving her phone and cash, only to find that the cash was suddenly vouchered under her co-defendant’s name, whose case was still open. Two months later, the ADA on her case had yet to respond to requests to release her phone. As for the cash, because it was no longer in her name she faced an uphill battle to get it returned. An NYPD Sergeant explained that our client had to secure another ADA release in her co-defendant’s name, get a notarized letter from the co-defendant relinquishing any claim to the cash, and then make a demand for the cash at the NYPD property clerk window. If she were successful in all this the NYPD would begin an investigation to determine if the cash can be released to her. More than three months later, Maria finally was able to get her cash back, but not her phone.
This example illustrates what can happen outside of formal civil forfeiture proceedings. If Maria had been unsuccessful in jumping through all these hoops and could not make a claim for the property within 120 days of the termination of her criminal proceeding, it would have been forfeited automatically without the city needing to file for forfeiture. A very real and perverse incentive thus exists to delay the return of property in such cases.
Of course, if the police were unable to arrest either person for the personal possession of marijuana, both of these unjust forfeitures would never have happened.
DRUG PROHIBITION AND THE OPIOID EPIDEMIC
As we discuss marijuana policy, we must also consider its place in the broader landscape of drug prohibition. Most urgently, we must address the connections between marijuana and non-marijuana drug laws and the epidemic of drug overdose, which is now the leading cause of death for people in the United States under 50.
The opioid epidemic is among the most deadly forces in our city today. BDS appreciates that State and City policymakers, heeding the calls of drug users and other experts, have worked to expand the use of life-saving naloxone kits and medication-assisted treatment, as well as other important initiatives to reduce the stigma of addiction and mental illness. However, we are concerned this important work could be undermined by regressive law enforcement strategies that further marginalize, stigmatize, and ultimately criminalize the very people these same policymakers seek to support. For example, as Crain’s reported last year, “nearly half of the $143.7 million budgeted for [NYC’s new overdose prevention initiative] HealingNYC through fiscal year 2021 will go to the NYPD, mostly to step up arrests of drug dealers.” Much of the funding provided to the police will reportedly be used to investigate overdoses with the goal of bringing high-level criminal charges against people alleged to have supplied the drugs. This strategy aligns with an alarming national trend toward expanded use of drug-induced homicide prosecutions identified by the Drug Policy Alliance in a recent report, An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane.
There is a growing recognition among policymakers of all parties, many of whom may struggle with addiction themselves or have friends or family members who struggle with addiction, that criminalization is an ineffective and, in fact, often very dangerous approach to drugs. These dangers are only heightened as police and prosecutors here and across the country pursue homicide-like charges or other very serious charges against alleged suppliers when overdoses do occur. Among many other serious risks, experts have noted that increased enforcement can discourage people who witness overdoses from calling 911 because suppliers are often close acquaintances and may even be the witnesses, themselves.
At an April 22, 2017 New York City Council Committee on Public Safety hearing, NYPD Chief of Detectives Robert Boyce said of the Department’s response to the epidemic: “Our focus is not on the individual addict. Our focus is on the street level as well as interdictions coming into the country.” Arrest data provided by the New York State Division of Criminal Justice Services does not support this statement. The most common drug arrest charge in 2016 was low-level marijuana possession, with 18,136 arrests. The next most common NYPD drug arrest charge, or fifth most common arrest overall, in 2016 was low-level non-marijuana drug possession, or Criminal Possession of a Controlled Substance in the 7th Degree, with 16,630 arrests. The most common drug sale arrest charge was Criminal Sale of a Controlled Substance in the 3rd Degree, with 5,628 arrests, or approximately one-sixth of the number of low-level drug possession arrests.
Research funded by the National Institute on Drug Abuse found that legally protected marijuana dispensaries were associated with reductions of 16 to 31 percent in opioid overdose deaths. Other experts have argued that the criminalization of marijuana led to the over-prescription and over-use of opioids and eventually the epidemic that we are struggling to address today. Simply put, marijuana seems to be a safer alternative to opioids in pain management, but criminalization undercuts that benefit. Furthermore, Portugal’s model for drug policy suggests that we may be able to dramatically reduce overdose deaths and other serious harms related to addiction through a careful and deliberate decriminalization of the use and possession of all drugs coupled with an aggressive public health strategy. In that country, heroin use has been cut by an estimated 75% and, more importantly, overdose deaths have plummeted. Portugal has the lowest rate of drug-induced death in Western Europe – less than 2% of the rate in the United States. In light of the growing overdose epidemic, lawmakers must work to end the drug war altogether, in addition to legalizing marijuana.
MARIJUANA PROHIBITION AND RESOURCE ALLOCATION
As a public defense organization, Brooklyn Defender Services is principally concerned with the direct impacts of drug laws on our clients and their families and communities. That said, we recognize that the fiscal and economic impacts of drug policy do in fact play a major role in their daily lives. For example, most of our clients or their children attend or attended public schools with unconstitutionally inadequate funding. According to the New York State Board of Regents, schools are owed billions of dollars in funding under the Campaign for Fiscal Equity lawsuit, with the majority owed to schools with high populations of Black, Latino and immigrant students. Without the resources for a State Constitutionally-mandated “sound basic education,” many of our public schools have infamously become pipelines to prisons and jails. If funds currently spent on drug enforcement were instead reinvested in school-based mental health clinics and restorative justice programs, school environments would improve and administrators and teachers would be better able to address any behavioral problems without calling 911 or issuing suspensions and expulsions. If funds currently spent on overtime for police officers who make low-level marijuana possession arrests near the end of their shifts were instead reinvested in making addiction treatment more widely available and accessible, perhaps overdoses would decline rather than continue to skyrocket.
The fact that marijuana and other drug prohibition is the status quo should not exempt it from close scrutiny. This hearing is a critical example of such scrutiny and the current budget season provides ample additional opportunities for reconsideration of existing funding choices. While the City and State have together spent an estimated $75 million every year criminalizing mostly people of color for low-level marijuana possession, the State has provided more than $15 million dollars in subsidies to craft wineries, breweries, distilleries and cideries in recent years., These resource allocations expand the disparities in health, economic success, and liberty in our society. In addition to simply legalizing and regulating adult marijuana use, the MRTA would foster significant economic growth and meaningfully shift the balance toward justice and equality. That is precisely what New York State must do.
BDS is immensely grateful to the Assembly for hosting this critical hearing and shining a spotlight this issue. Thank you for your time and consideration of our comments. We look forward to further discussing these and other issues that impact our clients. If you have any questions, please feel free to reach out to Jared Chausow, our Senior Policy Specialist, at 718-254-0700 ext. 382 or firstname.lastname@example.org.
 Justin McCarthy, Record-High Support for Legalizing Marijuana Use, U.S. Gallup News, Oct. 25, 2017, http://news.gallup.com/poll/221018/record-high-support-legalizing-marijuana.aspx.
 Marijuana Policy Project of New York & Drug Policy Alliance, New Poll Shows 2 to 1 Support for Legal Marijuana Use in New York State (2017), http://www.drugpolicy.org/press-release/2017/11/new-poll-shows-2-1-support-legal-marijuana-use-new-york-state.
 Melissa Moore, Lawmakers Must Legalize Marijuana in New York to Support Racial and Economic Justice, N.Y. Daily News, Nov. 27, 2017 at http://www.nydailynews.com/opinion/lawmakers-legalize-marijuana-new-york-support-justice-article-1.3661162.
 Tom Huddleston, Jr., Colorado Topped $1 Billion in Legal Marijuana Sales in 2016, Fortune, Dec. 13, 2016 at http://fortune.com/2016/12/13/colorado-billion-legal-marijuana-sales/.
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 Source: NYS Division of Criminal Justice Services
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