I worked for Legal Aid Society from 1998 through 2002, mainly in Manhattan, representing dozens of criminal defendants from arraignment through trial, and, in several cases, on appeal. The largest share of my cases were drug-related, and the largest share of those were marijuana possession or sale.
Most people are aware that rates of marijuana and other drug use are roughly equivalent across race, but blacks are many times more likely to be arrested than whites. Hearing story after story from the recently arrested, it becomes clear why this is the case: predominantly black and brown communities are over-policed compared to white communities; and poor people often have no choice but to buy, sell and use in public, whereas affluent people can do the same in private – in their homes, workplaces, and college campuses.
Once arrested, black and brown defendants are statistically more likely to be jailed and receive longer sentences than white defendants. First-time marijuana possession often incurs relatively light punishment. Adjournments in contemplation of dismissal (ACDs) were common when I practiced, and still are typical dispositions. But ACDs are not dismissals. An ACD can be reopened by the prosecution if the defendant gets arrested again within a period of time. ACDs are entry points for law enforcement into a defendant’s life, often followed by additional arrests, jail time, and criminal records.
The most heartbreaking case I had was a man I had represented at trial who later pleaded guilty to marijuana sale on a case with another attorney. Although his offense was only a misdemeanor in New York, the federal law considered this crime an “aggravated felony.” He was a permanent resident, with an American spouse and child, but he soon found himself in a detention center in Louisiana awaiting deportation to Jamaica. I arranged to have him returned to New York and released on bail pending appeal. But we ultimately lost the appeal, meaning he could have been picked up again by INS at any future time.
As state after state makes recreational marijuana use legal (and profitable), it is more imperative that we reverse the harm done to families, careers and lives in black, brown, and poor communities. But it is not enough to simply repeal the criminal laws. We must expunge criminal records for past marijuana convictions, and redirect the funds from regulation and taxation into those communities – for example, as support for underfunded schools, or assistance for industry job training and licensing, or funding for community supervision of the police.
The MRTA Bill pushed by the Start SMART NY Coalition, of which Metro Justice is a part, takes these steps, and I hope Governor Cuomo integrates the MRTA into his Cannabis Regulation and Taxation Act proposal. It is past time for real justice.
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