While marijuana remains illegal in New York, statistics show that 1960s-era horror stories of pot smokers languishing for years behind bars for possession of a few joints is largely a thing of the past. Cops and prosecutors concede that enforcing marijuana laws is a low priority in an era where heroin and other opiates are resurgent.
“I don’t want to suggest to anyone that we don’t enforce the law,” said Ulster County district attorney Holley Carnright in an interview last week. “But if you’re talking about first offenders or simple possession, those are not matters we put resources into.”
Carnright said that his office was ready and willing to go after marijuana growers and large-scale dealers as well as anyone who gets behind the wheel of a vehicle while stoned. But data provided by the state Department of Criminal Justice Services shows prison is an increasing rare destination — even for those convicted of the most serious marijuana crimes on the books.
In 2016, for example, 106 people were arrested in the state outside of New York City on charges of first-degree criminal possession of marijuana — a class C felony punishable by up to 15 years in state prison — that covers possession of any amount over ten pounds. Of those 106 cases, just 39 ended in a felony conviction, while in 44 the accused was allowed to plead to a misdemeanor charge. In 16 cases the charges were dismissed entirely.
Of those convicted, a dozen were sentenced to state prison and 13 to county or local jail. The remainder of the cases were settled with fines, probation or dismissal after the defendant met certain conditions. Of 25 people convicted and sentenced for first-degree criminal possession of marijuana in Ulster County, just four were sent to prison and two more to the county jail.
The same trend is apparent at the other end of the spectrum. Fifth-degree criminal possession of marijuana (CPM) is a class B misdemeanor that covers possession of any amount greater than 25 grams but less than two ounces. (Possession of smaller amounts is a civil violation similar to a speeding ticket under the state’s decriminalization statutes). Penalties for possession in the fifth degree include up to three months in jail and a $500 fine. Statewide outside New York City 4305 criminal possession pot cases made it into court last year. Of those, about half were dismissed, while just 2.1 percent resulted in jail time. In Ulster County over the past decade, just 14 people have seen the inside of the county jail based solely of a CPM-five conviction.
Absent evidence that defendants were involved in sophisticated trafficking operations, Ulster County public defender Andy Kossover said last week, local potheads could usually count on relatively gentle handling by authorities. “From what I’ve seen, possession regardless of quantity is handled with compassion,” said Kossover. “It’s handled with fines, and in many cases if you have a student who’s never been in trouble before it’s moved to a non-criminal offense so [that] they don’t end up with a conviction on their record.”
Heroin, pills more important
Before a marijuana case ends up in court, it must be investigated by police and for most local agencies, chasing pot cases is a low priority. Detective Sgt. Brian Robertson heads up the Kingston Police Department’s Special Investigations Unit, which handles anti-narcotics operations in the city. Robertson said even when he began on the job in 1990, pot took a backseat to the then-raging crack cocaine epidemic. These days, local cops are more concerned with disrupting the trade in heroin and diverted pharmaceuticals than busting the marijuana “grow houses” that dot the region. Robertson said SIU cops most frequently come across grow houses and other marijuana operations when their proprietors are the victims of home invasion robberies that result in injuries, or enough commotion to generate a 911 call from neighbors.
“In my experience, home invasions are notoriously higher with weed locations than with crack and heroin spots,” said Robertson. “People know that they usually have a lot of cash and they’re not going to call the cops.”
Robertson said his team will also take an interest when a marijuana selling operation leads to complaints about noise, traffic and other quality-of-life issues or in cases where a dealer is selling to minors.
“If we get enough complaints about a spot, we investigate — we don’t look the other way,” said Robertson. “And if you’ve got a 40 year old man selling to high school kids, we’re going to go after that every time.”
The cuffs, they do click
If local police aren’t focused on marijuana, that doesn’t mean area residents aren’t routinely busted for it. A glance at the police blotter shows that marijuana arrests are a staple. From kids caught with pot while trespassing at a swimming hole to drivers who find their vehicles subject to a search after an officer detects a skunky odor, marijuana can and does result in dozens, if not hundreds, of arrests of Ulster County residents each year.
The vast majority are handled as “unlawful possession of marijuana” — a civil offense similar to a traffic ticket which has been on the books since 1977 when state lawmakers enacted “decriminalization.” UPM applies to anyone who possesses less than 25 grams of weed.
Decriminalization was passed in the wake of marijuana’s rise in popularity to keep otherwise law-abiding people caught with small quantities of pot from being jailed or stuck with a criminal record. But lawmakers, nervous about the prospect of a public orgy of weed puffing, included an important exception to the rule: anyone caught with marijuana “burning or in public view” is subject to arrest on a misdemeanor charge. That exception has led to thousands of New Yorkers facing criminal court, rather than a civil ticket, for possession of a single joint or a tiny nugget in a hot bowl.
The “public view” exception became especially controversial in New York City during the “stop and frisk” era when cops carried out an expansive program of field interviews and pat-down searches in high-crime areas. Critics of the practice said that city cops would routinely arrest people — disproportionately black and Latino youth — for possessing small quantities of marijuana. Those arrested, critics complained, had violated the “public view” provision when they complied with police requests to empty a backpack or turn out their pockets.
In response, Democrats in the state Assembly have worked to expand decriminalization. Bills introduced in recent years would eliminate the “public view” exception or increase the weight of weed that could be possessed without criminal penalties. None of the bills passed during the latest round of budget negotiations in Albany.
“Decriminalization still has a ways to go,” said Assemblyman Kevin Cahill (D-Kingston) who supports expanded decriminalization. “It’s a dangerous thing to assume that simple possession of marijuana is not a crime in New York State.”
Oo-oo, that smell …
For Kingston defense attorney Bryan Rounds, however, the biggest impact of marijuana on his clients isn’t jail time for possession or sale, but the plant’s telltale scent, which, he says, gives police virtual carte blanche to search vehicles, homes and pockets. Case law dating to the 1970s allows police to initiate a warrantless search if they detect the odor of marijuana. Any evidence turned up in the search — like a gun or a bag of cocaine — is admissible in court. Judges, Rounds said, almost never questioned an officer’s claim to have smelled pot as justification for a search, even when it fails to turn up any trace of marijuana.
“That odor, or [a police officer] saying they detected that odor, gets them wherever they want to go without a warrant,” said Rounds. “It gets them into your pants, it gets them into your car, in some cases it can get them into your home. It’s really the civil rights issue of our time.”