Research Design
Our study utilized micro-level criminal record data obtained from the New York State Division of Criminal Justice Services (DCJS).[12] We sought to identify individuals whose initial contact with the criminal justice system (as best as can be determined reliably from state administrative data, see Methodological Appendix) was for possessing marijuana in a public place and the marijuana was being smoked or was open to public view, a misdemeanor under New York penal law.[13]
To ensure a sufficient number of years to track any subsequent criminal history, we gathered information on people who were arrested in New York City for marijuana possession anytime during 2003 or 2004. The research period continued through mid-2011. A 6.5 to 8.5-year period of study greatly exceeds the 3-year period used for most recidivism studies.
In order to be able to limit the study to persons who were not already “in the system” for prior criminal convictions at the time of the marijuana arrest, we focused on those whose marijuana arrest terminated in “adjournment in contemplation of dismissal in cases involving marihuana,” a type of conditional dismissal established under New York law (hereafter referred to in this paper as MJACD).[14]
The MJACD is typically given to persons new to the criminal justice system.[15] Individuals charged with marijuana crimes are eligible for a MJACD if they have not previously been granted one, if they have not previously been convicted of any controlled substance offenses, or upon the district attorney’s consent if they have previously been convicted of a crime.[16] Most people who receive a MJACD for marijuana possession have thus not shown a prior willingness or propensity to engage in crime. Tracking their later criminal justice involvement allowed us to see if marijuana arrests allowed police to identify people likely to engage in more serious offenses down the road.
The MJACD was also appropriate for our research because it is the most common disposition from a marijuana arrest. In 2003 and 2004, 59 and 60 percent, respectively, of all arrests where the top charge was misdemeanor marijuana possession (New York Penal Law § 221.10) terminated in a marijuana adjournment in contemplation of dismissal.[17] This disposition group therefore not only gave us a sizable number of individuals to track, but also represents a substantial portion of people arrested in a given year for misdemeanor marijuana possession.
People who receive a MJACD have their cases dismissed and sealed if they stay out of trouble for a year; after the adjournment period, the marijuana arrest and conditional disposition will no longer print on the “rap” sheet.[18] However, the New York State Division of Criminal Justice Services retains the fingerprints of and an identification number associated with each person who has received an MJACD.[19] We were therefore able to reliably track all later New York State arrests and convictions for the group under study.[20]
We ended up with 29,147 individuals arrested solely for marijuana possession in public view in 2003 and 2004, who had no prior criminal convictions at the time of arrest, and whose cases terminated in marijuana adjournments in contemplation of dismissal. (In this report we will refer to these individuals collectively as the MJACD cohort or the group under study.) We then constructed the criminal justice trajectories of each individual in this cohort until June 2011 (the most recent administrative records from the date when the DCJS provided data). [21]
Demographics of the Group under Study
As shown in Table One, most (86.8 percent) of the individuals in the group under study were male. Two-thirds were aged 25 or younger at the time of the arrest; indeed, almost one-quarter (23.3 percent) were between 16 and 18 years of age.
Nearly eight out of ten members of the cohort were either black or Hispanic. Blacks constituted almost one-half (48.6 percent) of the cohort, and Hispanics nearly one-third (31.3 percent).
[12] DCJS provided the criminal history data to Issa Kohler-Hausmann for an ongoing research project on New York City misdemeanors; Ms. Kohler-Hausmann worked as a Human Rights Watch consultant for this project to track the subsequent criminal trajectories of marijuana arrestees. The data was provided by DCJS in the interest of information exchange. The opinions, findings, and conclusions expressed in this publication are those of the authors and not those of DCJS. Neither New York State nor DCJS assumes liability for its contents or use thereof. The data was in the form of micro-level arrest incidents grouped by de-identified identification number. DCJS was not involved in the analysis of the data and bears no responsibility for our methods of statistical analysis or for the conclusions derived therefrom.
[13] Criminal possession of marihuana in the fifth degree, New York Penal Law § 221.10. “A person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses: 1.marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view; or 2.one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than twenty-five grams. Criminal possession of marihuana in the fifth degree is a class B misdemeanor.”
[14]Adjournment in Contemplation of Dismissal in Cases Involving Marihuana, New York Criminal Procedure Law § 170.56.
[15] It is not possible from this DCJS data to determine reliably how many of the members of the MJACD cohort had prior non-criminal violation convictions. See Methodological Appendix.
[16]New York Criminal Procedure Law § 170.56.
[17] Unpublished DCJS data on file with Human Rights Watch. Note, these numbers reflect dispositions as a percent of arrest incidents, not individuals.
[18] The rap sheet is the criminal history record maintained in New York State by the New York Division of Criminal Justice Services.
[19]New York Criminal Procedure Law § 170.56(1); New York Criminal Procedure Law § 160.50(1)(a), Order Upon Termination of Criminal Action in Favor of the Accused, explicitly exempts the MJACD from various provisions of the sealing law. See Methodological Appendix.
[20] See the Methodological Appendix for further explanation as to why this group of individuals who entered the criminal justice system for a marijuana arrest, as opposed to those whose cases are dismissed under other provisions or who are convicted of a non-criminal violation, can be reliably tracked over time.
[21] See Methodological Appendix for details.