I. New York State Marijuana Laws
In 1977, the New York State legislature reclassified the private possession of small amounts of marijuana, making it a non-criminal violation.[22] The Marihuana Reform Act of 1977 expressed the rationale for the statutory change in the following terms: “The legislature finds that arrests, criminal prosecutions and criminal penalties are inappropriate for people who possess small quantities of marihuana for personal use. Every year, this process needlessly scars thousands of lives and wastes millions of dollars in law enforcement resources, while detracting from the prosecution of serious crime.”[23]
Smoking or possessing marijuana openly in public remains a misdemeanor, albeit the lowest degree misdemeanor.[24] The police may arrest and book the alleged offenders, take their fingerprints and other information, and hold them until arraignment. In addition to possessing marijuana in public view, the law criminalizes, as a misdemeanor, possessing 25 grams to 8 ounces of marijuana and the sale of any amount up to 25 grams.[25]
Marijuana Arrests and Use in New York City
Between 1996 and 2011, city police made 586,320 arrests for possession of marijuana in public view in violation of New York Penal Law § 221.10.[26] Despite the decades-old legislative directive to avoid squandering precious policing and court resources on minor marijuana possession offenses, these cases represent the largest component of citywide arrests and criminal court dockets.[27]
In some of these cases, the defendants were smoking or passing a joint in public. But residents of minority communities, people who have been arrested, and advocates for them claim that a far more typical scenario is that marijuana is recovered from inside a pocket or backpack and thus becomes “open to public view” only after the police stop individuals and either ask them to empty their pockets or conduct a frisk.[28]
Responding to widespread criticism of the circumstances surrounding many marijuana arrests, Police Commissioner Raymond W. Kelly issued Operations Order #49 on September 19, 2011.[29] Under the order, police,
… lawfully exercising their police powers during a stop may not [italics in original] charge the individual with PL 221.10(1) … if the marihuana recovered was disclosed to public view at an officer’s direction. In such situations, uniformed members of the service must charge the violation, Unlawful Possession of Marijuana (UPM), Penal Law section 221.05.[30]
Numerous reports and official state data reveal that police officers have nevertheless continued to charge New Yorkers with misdemeanors for possession of marijuana that had been hidden until the police intervened.[31]
Data gathered by the New York City Department of Health and Mental Hygiene indicates that the rates of marijuana use among the city’s youth do not differ significantly by race and ethnicity, although non-Hispanic whites have slightly higher rates than non-Hispanic blacks.[32] Nevertheless, marijuana arrests predominate in precincts with high minority populations; conversely, the lowest rates of arrest are found in the precincts with the highest proportions of white residents.[33] As a result, blacks and Hispanics are more frequently arrested for marijuana possession than whites.
Between 1996 and 2010, blacks and Hispanics constituted 87 percent of marijuana possession arrests, even though they accounted for only 52 percent of the city’s population.[34] Non-Hispanic whites were only 12 percent of arrests, but constituted 35 percent of the population.[35] Between 1997 and 2006, blacks were arrested for misdemeanor marijuana possession at five times the rate of whites; in 2008, blacks were arrested at seven times the rate of whites.[36]
A recent analysis of marijuana arrests in the period 2004-2008 revealed 48 blacks arrested for marijuana possession for every 1,000 in the population, 24 Hispanics arrested per 1,000, and 6 whites arrested per 1,000. That is, blacks were arrested for marijuana possession at eight times the rate of whites.[37]
Human Rights Watch has previously reported on racial discrimination in the context of US drug law enforcement. [38] Under international human rights law, prohibited racial discrimination occurs where there is an unjustifiable disparate impact on a racial or ethnic group, regardless of whether there is any intent to discriminate against that group.[39] This report does not seek to determine whether New York City’s marijuana possession arrests are racially discriminatory under international law. Nevertheless, we note the results of sophisticated and comprehensive research indicating marked racial disparities in marijuana arrests that cannot be justified by disparities in use or fully explained by relevant neighborhood characteristics such as crime patterns.[40]
Marijuana Arrests and Public Safety
New York City officials have suggested that marijuana possession arrests promote public safety. They have never, however, articulated the precise way they do so. Some officials point to New York City’s declining rate of violent crime and the increased number of marijuana arrests as though this constitutes an ipso facto causal connection between the two.
Thus, for example, Paul Browne, spokesman for the New York Police Department, has said, “Attention to marijuana and lower level crime in general has helped drive crime down.”[41] Jim Dwyer, a columnist for The New York times, recently wrote,
For the last four years, I have asked the mayor’s office and the police commissioner why there has been an explosion of marijuana arrests among black and Latinos. Officials in those offices consistently, and ardently, defended the arrests as vital to public safety. In 2008, a police spokesman, Paul J. Browne, said “Taking care of little crimes, including pot possession … helped drive crime down.” In 2009, John Feinblatt, a mayoral aide, said, “This continued focus on low-level offending has been part of the city’s effective crime-reduction strategy, which has resulted in a 35 percent decrease in crime since 2001.” Last year, another aide, Frank Barry, said, “Marijuana arrests can be an effective tool for suppressing the expansion of street-level drug markets and the corresponding violence.”[42]
Heather McDonald, a fellow at the Manhattan Institute, also asserts a causal link between marijuana arrests and public safety. She has said, for example, “the over 10,000 minority lives that have been saved since the onset of New York’s policing revolution are unequivocally more important than an elevated risk of getting stopped, including for marijuana violations, in a high-crime neighborhood.” [43] Social science research has cast serious doubt on the claim that marijuana arrests cause a decline in street crime. A study using longitudinal data on marijuana arrests and street crime rates from 1989-2000 in precincts across New York City concluded that increases in marijuana possession arrests were not associated with decreases in violent crime. [44]
Marijuana arrests are deeply connected to New York City’s policing policy of intensive stop, question, and frisk, as well as arrests and summonses for low-level offenses in higher crime neighborhoods. These tactics are sometimes collectively called “broken windows,” “order maintenance,” or “quality of life” policing.[45]
Broken windows policing is predicated on the theory that uncontrolled physical and social disorder foments the conditions for more serious crimes to occur. Social science scholars and policy analysts have long debated whether aggressive stop and frisks and arrests for low-level offenses do, in fact, reduce violent crime, either by enhancing the community’s sense of order and control, or perhaps simply by asserting a crime-preventing law enforcement presence in high crime areas.[46]
Jack Maple—former deputy police commissioner and one of the principle innovators of both the New York Police Department’s (NYPD) Compstat program and its dramatic expansion of stops and arrests for low-level offenses—had a different rationale. He said the goal of quality of life policing is to identify serious criminals, i.e., “to catch the sharks, not the dolphins.”[47] Franklin Zimring, a criminologist who has studied New York City policing, explains the strategy as follows: “When serious bad guys get nabbed for a minor crime, it provides an opportunity to check for outstanding warrants on them and get them off the streets.” [48]
Arrests for marijuana possession and other low-level offenses enable the police to obtain identification, fingerprints, and other information that may prove useful in solving future, as well as past crime.[49] Zimring suggests that the persons selected for marijuana arrests “are in neighborhoods and fit the profiles in the police view of potential robbers and burglars. Managing street risks rather than combating the evils of marijuana is the patrol agenda."[50] Harry Levine, a sociologist at Queens College, City University of New York who has extensively studied New York City marijuana arrests, has stated the arrests provide,
an easy way to target and acquire information—to institutionalize and routinize surveillance—on young people, particularly people of color…. Marijuana arrests are the best and easiest way currently available to acquire actual fingerprints, photos, and other data on young people, especially black and Latino youth, who have not previously been entered into the criminal justice databases.[51]
Police officers have claimed that collecting identifying information on people in high crime neighborhoods through stop, question, and frisk activities is an effective crime-solving tool.[52]
Information about marijuana arrestees would be useful to the police to solve past or future crimes if the arrestees had engaged or subsequently did engage in such crimes. Levine has previously shown that the preponderance of arrestees for marijuana possession in New York City do not have criminal records.[53] Human Rights Watch has supplemented this research by developing data that indicates people whose initial contact with the criminal justice system is for marijuana possession in public view rarely become dangerous felons in the future.
There are other possible mechanisms through which extensive marijuana arrests could reduce future crime, such as incapacitation[54] and deterrence.[55] The descriptive data we have developed cannot answer such causal questions. We believe, nonetheless, that our findings— that marijuana arrestees do not have high rates of subsequent felony crime convictions—contribute an important piece of the puzzle regarding the putative public safety benefit of marijuana arrests.
[22] Unlawful Possession of Marihuana, New York Penal Law § 221.05. “A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana. Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However, where the defendant has previously been convicted of an offense defined in this article or article 220 of this chapter, committed within the three years immediately preceding such violation, it shall be punishable (a) only by a fine of not more than two hundred dollars, if the defendant was previously convicted of one such offense committed during such period, and (b) by a fine of not more than two hundred fifty dollars or a term of imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period.”
[23] New York Penal Law Article 221 Legislative Note.
[24] Criminal Possession of Marihuana in the Fifth Degree, New York Penal Law § 221.10. Criminal possession of marihuana in the fifth degree is a B misdemeanor. The amount possessed must be less than 25 grams.
[25]Offenses Involving Marihuana, New York Penal Law Article 221. Sale or possession of large quantities is classified as a felony crime.
[26]Harry G. Levine, Sociologist at Queens College and the Graduate Center of the City University of New York, “Memo (in Lieu of Testimony) Regarding State Senate Bill 5187, Marijuana Possession Arrests in New York, 1977-2010,” June 15, 2011, http://dragon.soc.qc.cuny.edu/Staff/levine/Testimony-Memo-NYS-Senate-Marijuana-Arrests-June-2011.pdf (accessed September 26, 2012).
[27]Top Ten Misdemeanor Arrests Charges, Division of Criminal Justice Services (DCJS) data provided to author Kohler-Hausmann, on file with Human Rights Watch; Criminal Court of the City of New York, “Annual Report 2011,” May 2012, http://www.courts.state.ny.us/courts/nyc/criminal/AnnualReport2011.pdf. The most common arraignment charge for the past five years has been Criminal Possession of Marihuana in the Fifth Degree, New York Penal Law § 221.10.See Criminal Court of the City of New York, “Annual Report 2007,” July 2008, http://www.nycourts.gov/courts/nyc/criminal/NYCCC%20Annual%20Report%20Final%20072508.pdf; Criminal Court of the City of New York, “Annual Report 2008,” August 2009, http://www.nycourts.gov/courts/nyc/criminal/AnnualReport2008.pdf; Criminal Court of the City of New York “Annual Report 2009,” July 2010, http://www.nycourts.gov/courts/nyc/criminal/AnnualReport2009.pdf; Criminal Court of the City of New York, “Annual Report 2010,” August 2011, http://www.nycourts.gov/courts/nyc/criminal/AnnualReport2010.pdf; Criminal Court of the City of New York, “Annual Report 2011,” May 2012, http://www.nycourts.gov/courts/nyc/criminal/AnnualReport2011.pdf (all accessed October 15, 2012).
[28] See, e.g., “Preliminary Data Review Fact Sheet,” The Bronx Defenders Marijuana Arrest Project, April 2, 2002, http://www.bronxdefenders.org/press/bronx-defenders-marijuana-arrest-project-announces-preliminary-review-data-reflecting-ongoing- (accessed October 15, 2012); Harry G. Levine and Deborah Peterson Small, New York Civil Liberties Union, “Marijuana Arrest Crusade: Racial Bias and Police Policy In New York City 1997-2007,” April 2008, http://www.nyclu.org/files/MARIJUANA-ARREST-CRUSADE_Final.pdf (accessed October 15, 2012), p. 60; Drug Policy Alliance, “$75 Million a Year: The Cost of New York City's Marijuana Possession Arrests,” March 2011, http://www.drugpolicy.org/docUploads/_75_Million_A_Year.pdf (accessed October 15, 2012), p. 11; Alisa Chang, “Alleged Illegal Searches by NYPD May Be Increasing Marijuana Arrests,” WNYC News, April 26, 2011, http://www.wnyc.org/articles/wnyc-news/2011/apr/26/marijuana-arrests/ (accessed October 15, 2012).
[29]Operations Order Number 49, Police Department, City of New York, “Charging Standards for Possession of Marihuana in a Public Place Open to Public View,” September 19, 2011, http://www.nyc.gov/html/om/pdf/2012/nypd-marijuana-order.pdf (accessed September 16, 2012).
[30] Ibid. In July 2012, the NYPD also issued a “Finest Message, General Administrative Information” memo to all commands stating that the presiding desk officer will be reviewing all arrests for misdemeanor marijuana possession in the fifth degree to assure the arrest was made in accordance with Operations Order Number 49. The unpublished order is on file with Human Rights Watch.
[31]Gomez-Garcia et al. v. The New York City Police Department et al., New York State Supreme Court, Verified Complaint, filed June 21, 2012, http://www.legal-aid.org/media/157211/06222012_marijuana_complaint.pdf; Alice Brennan and Ryan Devereaux, “New York Police Officers Defy Order to Cut Marijuana Arrests,” The Raw Story, March 30, 2012, http://www.rawstory.com/rs/2012/03/30/new-york-police-officers-defy-order-to-cut-marijuana-arrests/ (accessed October 15, 2012); Testimony of The Legal Aid Society, “In Support of: Res. 986-A - Resolution Supporting the Governor’s Proposal to Amend the Penal Law to Make Possession of a Small Quantity of Marijuana in Public View a Violation, Applauding the Speaker of the Assembly for His Support of the Proposal, and Calling Upon the Senate to Pass Legislation enacting the Same,” public hearing before the New York City Council Public Safety Committee, June 12, 2012, http://www.legal-aid.org/media/157208/testimony_061212.pdf.
[32] NYC Youth Risk Behavior Survey 2011, New York City Department of Health and Mental Hygiene, “Marijuana (30 days) by Race/Ethnicity, 2011,” https://a816-healthpsi.nyc.gov/SASStoredProcess/guest?_PROGRAM=%2FEpiQuery%2Fyrbs%2Fyrbs&year=2011&var=mariju2&qtype=strat&strat1=rraces5&strat2=none&bivar=sadsad2&year2=trend (accessed October 19, 2012). National data gathered by the Centers for Disease Control and Prevention indicate slightly higher rates (by about 1 percent) of marijuana use among African Americans than among whites, and both are slightly higher than Hispanics (The NSDUH Report, National Survey on Drug Use and Health, “Illicit Drug Use, by Race/Ethnicity, in Metropolitan and Non-Metropolitan Counties: 2004 and 2005,” June 21, 2007).
[33] Harry G. Levine, “Memo (in Lieu of Testimony) Regarding State Senate Bill 5187, Marijuana Possession Arrests in New York, 1977-2010,” http://dragon.soc.qc.cuny.edu/Staff/levine/Testimony-Memo-NYS-Senate-Marijuana-Arrests-June-2011.pdf. For example, Levine found that in the wealthy and overwhelmingly white 19th precinct on the upper-east side of Manhattan, the rate of marijuana possession arrests was 16 per 100,000. In Ocean-Hill Brownsville, a predominantly African American and Latino community, the rate is 155 times that.
[34] Ibid.
[35] Ibid., p. 2.
[36] Levine and Small, “Marijuana Arrest Crusade: Racial Bias and Police Policy in New York City, 1997-2007,” http://www.nyclu.org/files/MARIJUANA-ARREST-CRUSADE_Final.pdf; Harry G. Levine and Deborah Peterson Small, “New York City’s Marijuana Arrest Crusade Continues,” September 2009, http://www.drugpolicy.org/resource/new-york-citys-marijuana-arrest-crusadecontinues (accessed October 15, 2012).
[37] Amanda Geller and Jeffrey Fagan, “Pot as Pretext: Marijuana, Race, and the New Disorder in New York City Street Policing.” Journal of Empirical Legal Studies, vol. 7, no. 4(2010), p. 606.
[38]Human Rights Watch, Decades of Disparity: Drug Arrests and Race in the United States, March 2009, http://www.hrw.org/sites/default/files/reports/us0309web_1.pdf; Human Rights Watch, Targeting Blacks: Drug Law Enforcement and Race in the United States, May 2008, http://www.hrw.org/sites/default/files/reports/us0508_1.pdf;Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs, vol. 12, no. 2(G), May 2000, http://www.hrw.org/legacy/reports/2000/usa/.
[39] See generally, Jamie Fellner, “Race, Drugs, and Law Enforcement in the United States,” Stanford Law and Policy Review, vol. 20, no. 2(2009).
[40] See Geller and Fagan, “Pot as Pretext: Marijuana, Race, and the New Disorder in New York City Street Policing,” Journal of Empirical Legal Studies; Andrew Golub, Bruce D. Johnson and Eloise Dunlap, "The Race/Ethnicity Disparity in Misdemeanor Marijuana Arrests in New York City," Criminology & Public Policy, vol. 6, no. 1(2007), pp. 131-164; Bernard E. Harcourt and Jens Ludwig, "Reefer Madness: Broken Windows Policing and Misdemeanor Marijuana Arrests in New York City, 1989-2000," Criminology & Public Policy, vol. 6, no. 1(2007), pp. 165–181.
[41] Sean Gardiner, “Buy and Bust: New York City’s War on Drugs at 40,” City Limits, vol. 33, no. 2(2009), p.30. For other officials claiming marijuana arrests reduce violent crime, see, e.g., Elizabeth A. Harris, “Minor Marijuana-Possession Charges Require Public View,” The New York Times, September 23, 2011, http://www.nytimes.com/2011/09/24/nyregion/minor-marijuana-possession-charges-require-public-view.html?_r=1&emc=eta1 (accessed Sep 26, 2011)("Under Mayor Michael R. Bloomberg, the number of low-level marijuana arrests has increased significantly…. [I]n the past, mayoral aides have said such arrests helped fight more serious crime, like the violence that tends to trail drugs…. In a March appearance before the City Council, Mr. Kelly reiterated the Bloomberg administration's position that arrests for having marijuana in public view have helped keep crime low.”); Kate Taylor, “Advocates Plan to Press 2013 Candidates on Police Practices,” The New York Times, February 21, 2012, http://www.nytimes.com/2012/02/22/nyregion/advocates-plan-to-press-2013-candidates-on-police-practices.html (accessed October 24, 2012)(“Mr. Bloomberg has defended the practice [of stop and frisks], calling it an effective crime-fighting tool and rejecting assertions that police officers target minorities. In an e-mail, Paul J. Browne, a spokesman for the Police Department, said that curtailing what he called effective police practices like stop-and-frisk ‘could have unintended consequences, since they now save lives, particularly among young men of color, who are disproportionately the victims of gun violence.’”); "Pot arrests in New York City at a 10-year high," AM NewYork, February 1, 2012,
http://www.amny.com/urbanite-1.812039/pot-arrests-in-new-york-city-at-a-10-year-high-1.3496797 (accessed October 24, 2012)(Responding to reports that Mayor Michael Bloomberg has made more arrests than any mayor in the history of New York City or in the history of America, “A spokesman for Bloomberg said critics of the Mayor and NYPD ‘seem to omit the fact that the last decade was also the safest in city history.’”).
[42] Jim Dwyer, “Altering a Law the Police Use Prolifically,” The New York Times, June 5, 2012, http://www.nytimes.com/2012/06/06/nyregion/altering-a-law-the-police-use-prolifically.html (accessed October 29, 212).
[43]Heather Mac Donald, “Pot Possession and the Police: Reforming marijuana laws is one thing; demonizing the NYPD is another,” City Journal, June 7, 2012, http://www.city-journal.org/2012/eon0607hm.html (accessed October 29, 2012). See also Heather Mac Donald, “It’s the Cops, Stupid!,” The New Republic, February 2, 2012, http://www.tnr.com/book/review/franklin-zimring-new-york-urban-crime-control-city-safe (accessed October 22, 2012).
[44] Harcourt and Ludwig, supra note___. The authors concluded, “As Golub et al. document well, the focus on MPV has had a significant disparate impact on African-American and Hispanic residents. Our study further shows that there is no good evidence that it contributed to combating serious crime in the city. If anything, it has had the reverse effect. As a result, the NYPD policy of misdemeanor MPV arrests represents an extremely poor trade-off of scarce law enforcement resources…”
[45] Broken windows policing is named after the seminal article of that name in which the authors argued that unchecked physical and social disorder give rise to pervasive fear and foment the conditions of serious crime. George L. Kelling and James Q. Wilson, “Broken Windows: The Police and Neighborhood Safety,” The Atlantic, March 1982, http://www.theatlantic.com/magazine/archive/1982/03/broken-windows/4465/ (accessed July 11, 2012). There is debate about whether the policing tactics adopted in New York City over the past 15 years are properly termed “quality of life” (see, e.g., Franklin E. Zimring, The City that Became Safe: New York’s Lessons for Urban Crime and Its Control (New York: Oxford University Press, 2011); Mac Donald, "It’s the Cops, Stupid!," The New Republic , http://www.tnr.com/book/review/franklin-zimring-new-york-urban-crime-control-city-safe). In any case, the Broken Windows thesis has been cited by the police department in formulating its tactics (see, e.g., New York City Police Department, “Police Strategy No. 5: Reclaiming the Public Spaces of New York,” BM 693-5 (8-94), 1994.).
[46] See, e.g., Heather Mac Donald, “New York’s Indispensable Institution: The NYPD’s Crime-Fighting Sparked the City’s Economic Revival and is Essential to its Future,” City Journal, July 7, 2009, http://www.city-journal.org/2009/nytom_nypd.html (accessed October 15, 2012)(“smoking marijuana in public does contribute to a sense of a neighborhood being out of control, where you have public disregard for the law. There is an argument for being concerned about open marijuana use.”). But see, Bernard E. Harcourt, Illusion of Order: The False Promise of Broken Windows Policing (Cambridge and London: Harvard University Press, 2001); Geller and Fagan, “Pot as Pretext: Marijuana, Race, and the New Disorder in New York City Street Policing,” Journal of Empirical Legal Studies.
[47] Jack Maple and Christopher Mitchell, The Crime Fighter: Putting the Bad Guys Out of Business (New York: Broadway Books, 1999), pp. 155-56, “[W]e need to be more selective about who we were arresting on quality-of-life infractions. When a team of cops fills up a van with arrestees, the booking process can take those cops out of service for a whole day in some cities. The public can’t afford to lose that much police protection for a bunch of first-time offenders, so the units enforcing quality-of-life laws much be sent where the maps show concentrations of crime or criminals, and the rules governing the stops have to be designed to catch the sharks, not the dolphins.”
[48] Franklin E. Zimring, “How To Stop Urban Crime Without Jail Time,” The Wall Street Journal, January 28, 2012, http://online.wsj.com/article/SB10001424052970203806504577181291838644350.html (accessed October 29, 2012).
[49] See, e.g., Ray Rivera, Al Baker and Janet Roberts, “A Few Blocks, 4 Years, 52,000 Police Stops,” The New York Times, July 11, 2010, http://www.nytimes.com/2010/07/12/nyregion/12frisk.html?_r=0&adxnnl=1&pagewanted=2&adxnnlx=1350658938-LUAFl2b2e5bME50Nrsh/vgBy (accessed October 19, 2012).Arrests for a marijuana violation are not as useful from this perspective as arrests on misdemeanor charges. The marijuana violation, PL 221.05, is not a printable offense, which means fingerprints can only be taken for purposes of identification if the arrestee’s identity is in question. Charging for a misdemeanor also avoids the provision in the Marihuana Reform Act of 1977, which explicitly directed officers to issue appearance tickets, as opposed to effectuating full arrests, when the sole charge is a marijuana violation (New York Penal Law § 221.05). Appearance ticket; certain cases, New York Criminal Procedure Law § 150.75.
[50]See Zimring, The City that Became Safe: New York’s Lessons for Urban Crime and Its Control, p. 122(discussing the patterns of arrest for marijuana in New York City relative to underlying patterns of marijuana use).
[51]Levine does not believe the desire to obtain the identifying information is a major motivation for the arrests, but it is one of the motivations, along with, for example, showing high productivity and performance through high arrest numbers. Levine and Small, “Marijuana Arrest Crusade: Racial Bias and Police Policy in New York City, 1997-2007,” http://www.nyclu.org/files/MARIJUANA-ARREST-CRUSADE_Final.pdf. Levine and Small also suggest that massive marijuana possession arrests “produce arrest numbers that show productivity.” Ibid., p. 5. See also, Chris Smith, “What’s Eating the NYPD,” New York Magazine, April 8, 2012, http://nymag.com/news/features/nypd-2012-4/index1.html (accessed September 11, 2012).
[52] See, e.g., Rivera, Baker, and Roberts, “A Few Blocks, 4 Years, 52,000 Police Stops,” The New York Times, http://www.nytimes.com/2010/07/12/nyregion/12frisk.html?_r=0&adxnnl=1&pagewanted=2&adxnnlx=1350658938-LUAFl2b2e5bME50Nrsh/vg. “In each of those [SQF] encounters, officers logged the names of those stopped — whether they were arrested or not — into a police database that the police say is valuable in helping solve future crimes.” See also, Bob Herbert, “Watching Certain People,” The New York Times, March 2, 2010, http://www.nytimes.com/2010/03/02/opinion/02herbert.html (accessed Oct 29, 2012), in which Commissioner Kelly asserted the value of this massive database: “Information contained in the stop, question and frisk database remains there indefinitely, for use in future investigations.” In 2010 New York State’s Criminal Procedure Law was amended to prohibit this practice of electronic recording of identifying information of a person subjected to temporary questioning or search in a public place (see Temporary questioning of persons in public places; search for weapons, New York Criminal Procedure Law § 140.50(4)). The marijuana violation, Penal Law 221.05, is not a printable offense, which means fingerprints can only be taken for purposes of identification if the arrestee’s identity is in question. Charging for a misdemeanor also avoids the provision in the Marihuana Reform Act of 1977, which explicitly directed officers to issue appearance tickets, as opposed to effectuating full arrests, when the sole charge is a marijuana violation (New York Penal Law 221.05). New York Criminal Procedure Law § 150.75.
[53] Harry G. Levine, “Memo (in Lieu of Testimony) Regarding State Senate Bill 5187, Marijuana Possession Arrests in New York, 1977-2010,” http://dragon.soc.qc.cuny.edu/Staff/levine/Testimony-Memo-NYS-Senate-Marijuana-Arrests-June-2011.pdf.
[54] Heather McDonald has suggested low-level arrests forestall future crime that is relatively imminent: “The police are interacting with potential felony offenders before they actually commit a felony, by accosting and sometimes arresting people for low-level quality-of-life offenses or questioning them for suspicious behavior. If someone is drinking in public, an officer may simply warn him regarding his violation and pour out his whiskey, or the officer may issue a summons. In either case, an interaction at 11 a.m. may avert a stabbing at 11 p.m., when the whiskey drinker is good and drunk.” Mac Donald, “It’s the Cops, Stupid!,” The New Republic, http://www.tnr.com/book/review/franklin-zimring-new-york-urban-crime-control-city-safe. See also, Hope Corman and Naci Mocan, “Carrots, Sticks, and Broken Windows,” The Journal of Law and Economics, vol. 48(2005), pp. 235-266, arguing that incapacitation is a highly unlikely mechanism through which misdemeanor arrests generally could reduce serious crime because on average the arrestees spend little time in custody.
[55]The theory of deterrence is that criminal sanctions – if they are swift, sure, and severe enough —can cause individuals to refrain from committing crimes in the future that they otherwise had a propensity and willingness to commit. We are not aware of any research that has proved – or disproved – the possibility that low-level marijuana arrests and the sanctions that typically follow such arrests (e.g., dismissals, adjournments in contemplation of dismissal, or convictions with little or no jail time) deter people from committing marijuana offenses or more serious crimes in the future.