By Charisma L. Miller, Esq.
Brooklyn Daily Eagle
The 2012 election was most definitely an historic one, and not only because our first African-American president was re-elected in a landslide. For the first time in American History, two states, Washington and Colorado, voted to legalize and regulate the recreational use of marijuana. While 18 states have already legalized marijuana only for medicinal purposes, the result of the 2012 election saw what can only be called a paradigm shift in this country.
And the effects of this shift can already be seen here in Brooklyn.
Marijuana possession, while not legal in the state today, is increasingly being treated with less severity than other drug related offenses by law enforcement officials.
In September 2011, New York City Police Commissioner Ray Kelly, issued an internal order to members of the NYPD regarding procedure for marijuana arrests. New York law makes possession of marijuana a criminal offense, only if the marijuana is publicly displayed. Kelly’s directive reminds officers that for marijuana to be publicly displayed, the subject himself must display it independently.
In other words, if marijuana comes into public view by actions of a police officer — for example if a person is ordered by an officer to empty out his pockets — it is not a misdemeanor. Instead, the possession of small amounts of marijuana is to be treated as a non-fingerprintable offense subject only to a fine, not an arrest.
This directive is one that the late Brooklyn Supreme Court Justice Gustin Reichbach seemed to support in a New York Times opinion piece titled “A Judge’s Plea for Pot.” Justice Reichbach advocated the use of medical marijuana as a way to help stave off pain.
In the piece, Reichbach revealed that his battle with pancreatic cancer forced him to wear a pump that slowly injected chemotherapy drugs into his body, often causing him intense nausea and pain. “Inhaled marijuana is the only medicine that gives me some relief from nausea, stimulates my appetite and makes it easier to fall asleep,” wrote Reichbach in the article, then a patient at Memorial-Sloan Kettering Cancer Center.
To further this de-escalating trend, the Brooklyn District Attorney’s Office, according to District Attorney Charles Hynes, has set up an ad hoc community court titled Project Safe Surrender where individuals with “minor offenses such as possession of small amounts of marijuana…are able to appear in front of a judge and have their summonses dismissed.”
In fact, Hynes even supported a legislative effort by Brooklyn Assemblyman Hakeem Jeffries to decriminalize the possession of small amounts of marijuana in public view. “The directive from Commissioner Kelly gave us the opportunity to make a strong argument to the Governor that there is recognition of the flawed nature of these arrests by the police department itself,” Jeffries said.
“In the [Kings County] Supreme Court, we rarely see cases where marijuana is the only offense, often they are disposed of in the lower criminal courts," said Marsha Michael, principal law clerk to Justice Deborah Dowling. Indeed, this appears to be a consequence of a marked shift in attitude toward the crime of simple possession by New York law enforcement.
More recently, the prosecution of marijuana generally occurs when it is tied to more serious infractions, such as gang related and violent crimes, or the possession of large amounts of marijuana, according to Brooklyn’s First Assistant District Attorney, Anne Swern.
“First time marijuana offenders receive ACDs,” said Swern. ACD stands for adjournment contemplating dismissal and is a form of conditional probation. It is not an admission of guilt, nor is it an affirmation of innocence. “During the time that the case is pending, the DA’s office will frequently submit the case for early dismissal if it is shown that the ACD hinders someone’s livelihood,” said Swern.
People with multiple marijuana offenses are often required to attend a class. “A few years ago we had a treatment readiness class that marijuana offenders would attend to learn about the harmful effects of the drug,” said Swern.
That is not to say that cases involving marijuana are overlooked. In November 2009, the Brooklyn District Attorney, announced the indictment of 11 people involved in a Clinton Hill drug ring that sold crack cocaine and marijuana on the street in a residential apartment building and out of several local businesses in the vicinity of Putnam and Grand Avenues.
“There are still harmful effects caused by marijuana,” said Swern. Although the trend to legalize and regulate the drug is gaining national steam, Swern cautions that “there are still important health concerns surrounding marijuana that should not be overlooked.”