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Brooklyn D.A.’s drug policy follows tide of the country

Bill Bolsters Already Existing Marijuana Initiatives

July 10, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
“It makes sense all around,” Criminal Defense Attorney Todd Spodek said of the policy
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Brooklyn’s new district attorney announced a policy on Tuesday to decline prosecution in low-level marijuana possession cases. This decision by D.A. Ken Thompson appears to follow the liberal and progressive tide of the country in general and New York state in particular.

Thompson’s announced policy comes on the heels of New York state Gov. Andrew Cuomo signing into law the legalization of marijuana for medicinal purposes, making New York the 23rd state in the country to authorize medical marijuana. 

“[The law] gets us the best that medical marijuana has to offer in the most protected, controlled way possible,” Cuomo, said Monday at a ceremonial bill signing in New York City. “This is the smartest approach that any state has taken thus far.”

Twenty-four hours later, Thompson announced that his administration will no longer prosecute first-time offenders arrested for low-level misdemeanor marijuana possession.  

“This new policy is a reasonable response to the thousands of low-level marijuana arrests that weigh down the criminal justice system, require significant resources that could be redirected to more serious crimes and take an unnecessary toll on offenders,” Thompson said in a released statement.

Under Thompson’s regime, first-time offenders or those with a minimal criminal record will not enter the system, and their cases will be summarily dismissed.

Brooklyn attorneys praised Thompson’s move as forward thinking and a needed change.

“It’s a long-time overdue,” attorney Michael Mullen said. “Brooklyn is finally catching up to the rest of the country as to its views on marijuana.”  

“Thompson’s policy is an excellent strategy,” Criminal Defense Attorney Todd Spodek said.  “It makes sense all around. Why should tax monies be spent on small amounts of marijuana?” 

While Thompson’s plan appears innovative, many wonder whether it is truly innovative or a continuation of policies already codified in New York’s criminal procedure law and current New York Police Department (NYPD) directives.

New York Criminal Procedure Law already requires that first-time offenders charged with the unlawful possession of marijuana have their case dismissed or adjourned in contemplation of dismissal (ACD). 

“Thompson’s policy is a step in the right direction, but typically first time arrests are entitled to marijuana ACD anyhow,” Mullen noted.

Under Thompson’s announced policy change, it may be that first-time defendants will be afforded this built-in defense much sooner following an arrest.  A spokesperson from the Brooklyn D.A.’s office informed the Brooklyn Daily Eagle, that while ACDs will still be effective, the goal of Thompson’s policy is to prevent defendants from even entering the criminal justice system to begin with. 

In order to receive an ACD or an immediate dismissal, a first time offender would need to appear in front of a judge with the judge making the final determination on how to dispose of the case. With Thompson’s policy “cases will be dismissed prior to arraignment for those with little or no criminal record,” as noted by the D.A.’s office.

As Thompson’s administration focuses on how to handle marijuana cases post-arrest, the NYPD follows a directive, encouraging officers to not arrest or detain individuals who possess small amounts of the drug. In September 2011, then-New York City police commissioner, Ray Kelly, issued an internal order to members of the NYPD regarding procedure for marijuana arrests. Kelly’s directive reminded officers that the possession of small amounts of marijuana is to be treated as a non-fingerprintable offense subject only to a fine — not an arrest.

“[T]he Kings County policy change will not result in any changes in the policies and procedures of the NYPD,” NYPD Commissioner William Bratton said in a statement obtained by the Brooklyn Daily Eagle, indicating that Thompson’s new policy does not alter the NYPD’s directive not to arrest individuals for small amounts of marijuana. 

The D.A.’s office, however, has distinguished its policy from that of the NYPD, though the connection is evident. “Thompson’s policy is connected to the NYPD directive in that police officers have been instructed to not make arrests in these instances,” Spodek said. “But if the NYPD chooses to make the arrest, the case will end up in the D.A.’s office. The D.A. here is choosing not to prosecute, while the NYPD is making the choice as to whether or not to make the initial arrest.”

Thompson has declared that the primary purpose of his policy is to reduce the burden on the criminal justice system. In spite of the allowable dismissal and ACD options afforded for first-time offenders, “[t]he processing of these cases exacts a cost on the criminal justice system and takes a toll on the individual,” said Thompson.

“Given that these cases are ultimately — and predictably — dismissed, the burdens that they pose on the system and the individual are difficult to justify. We are pouring money into an endeavor that produces no public safety benefit,” the district attorney added. 

A question of timing still remains. Thompson noted that he hopes his policy will “prevent offenders — who are disproportionately young men of color — from being saddled with a criminal record for a minor, non-violent offense.” 

Yet, if the NYPD chooses to arrest an individual on a marijuana charge, even if it is ultimately dismissed — either under Thompson’s policy or an ACD — there is a high likelihood that the defendant will spend time in a holding cell pending case dismissal.

“If the police department makes an arrest for small marijuana possession, the defendant will still be taken the precinct and the decision to dismiss may not be made by the D.A.’s office until 24 hours later; they still may spend 24 hours in holding cells,” Mullen said.  

Either way, Thompson’s policy is gaining significant support among Brooklyn’s legal community.

“I think it’s a very smart move,” attorney Samuel Gregory said. “Low-level arrests create animosity between the community and the police.”

NYPD has worked with Thompson’s office to smooth out the lines of this policy shift noting that “[o]ver the past several weeks the NYPD has had productive discussions with the office of the Kings County District Attorney in connection with the proposed policy regarding low-level marihuana prosecutions.”

“My office and the New York City Police Department have a shared mission to protect the public and we will continue to advance that goal,” Thompson added. “But as district attorney, I have the additional duty to do justice — [N]ot merely convict — and to reform and improve our criminal justice system in Brooklyn.”

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