The NYPD continues to arrest people (of color) for weed—despite legalization.

As New York’s government gears up to build a weed market by licensing dispensaries, people are still being busted for possession. Specifically, people of color.

NYPD arrest data show that in the year and a half since marijuana was legalized across the state, 137 people have been arrested or summoned to court on cannabis-related offenses in New York City, almost entirely for possession. Only three of the people arrested were non-Hispanic white. 41 of those arrested were Black, while 42 were Hispanic. The rest of white, unknown, Asian or Pacific Islander. The average age range was 25-35. 

When legalization went into effect in New York state in March 2021, lawmakers inserted a statute criminalizing possession based on quantity. Possessing ten pounds is still a class D felony; five pounds or more is a class E felony; and criminal possession of 16 ounces or more—criminal possession of cannabis in the third degree—is a class A misdemeanor. 

It’s not clear why criminal possession stuck, since a separate statute criminalizing sales was included pending the growth of a legal market. Each quarter, the bulk of the arrests were for criminal possession in the 3rd degree, the smallest amount, up to 16 ounces. These rules and distinctions might be confusing to the general population, to say the least: there was virtually no news coverage alerting residents that there were limits on possession. In an explainer, the New York Times mentioned, in passing, that there are penalties for large amounts or illegal sales; but then added that people are allowed to store up to 5 pounds in their home, which is more than the amount that might trigger the class E felony or misdemeanor. 

In the first quarter following legalization, pot arrests dropped to just 8 from 163 the previous quarter. But arrests crept up over the next three quarters, to 26, then 33, and then 35. Many of those arrests were for cannabis possession of at least 16 ounces (or 5 ounces of concentrated cannabis, like oils or tinctures), or higher amounts. 

I obtained unpublished arraignment data showing the outcomes of the 137 arrests and summonses across New York City. According to the data, 113 cases were for “criminal possession,” based on amount, while most of the rest were for violations, such as smoking near a school. Only two were for illegal sales. 34 summonses were clocked under legal statute, 222.25, which involves unlawful possession of 3 ounces and above.

Most of the charges were dismissed or designated ACD (Adjournment in Contemplation of Dismissal), which raises the question of why the NYPD is issuing summons’ and even putting people through the arrest and jail process for charges that rarely amount to a conviction. 

At the same time, there are six cases that led to a prison term for 1st and 2nd degree criminal possession. A number of people had to pay fines and surcharges exceeding $300 for first, second and third degree possession. Other cases were resolved with a desk appearance ticket—in which the person is released but has to come back to court—conditional discharge, which stops short of probation but can carry terms like community service, rehab, and employment. 

Suffice to say, any entanglement with the court system, regardless of outcome, can have a destabalizing impact on someone’s life, from lost work to trauma to potentially losing custody of their children. Some of the cases took close to a year to resolve—it’s not clear how many spent time in jail awaiting their court date. And some cases led to open warrants—even though lawmakers boasted all pot records would be expunged with legalization.

Studies suggest Blacks and whites use marijuana at similar rates, yet Black people, nationally, are nearly four times more likely to be arrested. In New York, Black people have been 14 times more likely to be arrested than whites since legalization.

Eli Northrup, Policy Counsel with the Bronx City Defenders, says the group is aware of two cases: in one case, police found the marijuana after conducting a search, and arrested the person, without noting the amount of pot. “They were just grasping at straws,” he says. The defendant had to go to court twice before the charges were dismissed. In the other case, an old warrant came up, despite expungement. “It just fell through the cracks,” he said. 

Northrup was shocked at the number of arrests. “If there's still 100 arrests and racial disparities persist that’s problematic,” says Northrup.

Asked for comment, the NYPD press office sent me links to statute 222. 

Alex Vitale, professor of sociology at Brooklyn College and the author of “The End of Policing,” believes officers are using the statute to ramp up existing charges or collar people committing non-arrestable offenses.

“My guess is that most of these are incidental to some other arrest rather than free standing. They are an add on in essence,” he told Hell Gate. “If they are free standing, then they were probably used as a tool by officers to manage a situation where other legal tools weren't readily available, like criminalizing someone deemed a ‘nuisance’ but not otherwise engaged in actual criminal behavior.”

This isn’t the first instance of official “legalization” being applied selectively. NPR reported in 2016 that Black and brown teenagers were being arrested more after Colorado legalized pot. But Colorado was the earliest state to legalize, before legalization was explicitly linked to the movement for racial justice.

By the time New York state got around to legalization, racial equity was at the forefront of discussions about the form legal markets would take. The legislation was even delayed over concerns that not enough projected revenue would end up in the communities most impacted by the drug war.

Gov. Andrew Cuomo touted the legislation’s social justice impact. “This is a historic day in New York, one that rights the wrongs of the past by putting an end to harsh prison sentences, embraces an industry that will grow the Empire State’s economy, and prioritizes marginalized communities so those that have suffered the most will be the first to reap the benefits,” Cuomo said.

While Northrup is surprised that more than a hundred people have been dragged through the legal system for something virtually no one knows is a crime, he’s not shocked by the racial disparities. “This is not confined to cannabis, although it’s especially egregious given how much public opinion has shifted on marijuana,” he said. “If you look at any low level offenses that many people engage in, there’s always a stark racial disparity. This goes back decades and decades.”