Marijuana Possession Arrests In New York City — How Times Have Changed

Research Brief

A series of reports summarizing current research from CJA

No. 40

May 2016

Acting Executive Director & Director, Operations Dept.

Peter C. Kiers Acting Deputy Director & Director, Research Dept., Richard R. Peterson, Ph.D. Research Brief Editor & Deputy Director, Research Dept., Mary T. Phillips, Ph.D. Graphics & Production, Raymond P. Caligiure Communications Associate, Lauren A. Wilson CJA is a not-for-profit corporation that provides a variety of criminal justice services under a contract with the City of New York.

CJA staff interview defendants arrested in New York City, make recommendations for pretrial release, and notify released defendants of upcoming court dates. CJA also operates two supervised release programs for nonviolent felony clients in Queens and Manhattan.

The Research Department conducts studies addressing a broad array of criminal justice policy concerns. The Research Brief series summarizes the results of some of these studies.

New York City Criminal Justice Agency, Inc. 52 Duane Street New York, NY 10007 PHONE: 646 213-2500 FAX: 646 213-2650 WEB: www.nycja.org

© 2016 NYC Criminal Justice Agency, Inc.

MARIJUANA POSSESSION ARRESTS IN NEW YORK CITY — HOW TIMES HAVE CHANGED

By Mary T. Phillips, Ph.D.

Through two major policy initiatives, New York City has recently attempted to reduce the negative impact of low-level marijuana arrests on the lives of tens of thousands of New Yorkers annually, and to alleviate the disproportionate burden of these arrests on blacks and Hispanics.

In May 2013, Mayor Michael Bloomberg and his Police Commissioner, Raymond Kelly, directed the police to issue a Desk Appearance Ticket (DAT) in most marijuana possession arrests.

This initiative was aimed at reducing detention between arrest and arraignment, allowing most defendants in such cases to remain free until their first court date.

In November 2014, the new mayor, Bill DeBlasio, and new Police Commissioner, William

Bratton, went further. They announced that possession of small amounts of marijuana would no longer be grounds for arrest. Since that time, the policy has been to issue a non-criminal summons rather than arresting eligible suspects found with less than 25 grams of marijuana.

CJA recently published results from a research project investigating the effects of these policies on the volume and processing of marijuana arrests, focusing particularly on ethnic disparity. The data used in the full report included arrests and court outcomes through February 2015. In this Brief, we summarize the highlights of that research with updated data including all arrests through December 31, 2015.

This Research Brief is adapted from Misdemeanor Marijuana Arrests, New York City 2012–2014 (2015)

by Mary T. Phillips, Ph.D., Deputy Director, Research Department The full report is available on CJA’s web site: www.nycja.org/library.php Systems Programming: Wayne Nehwadowich Address comments to the author at mphillips@nycja.org Please cite as follows, adapted to your citation style: Phillips, Mary T. 2016. “Marijuana Possession Arrests in New York City — How Times Have Changed.” Research Brief series, no. 40.

New York: New York City Criminal Justice Agency, Inc. The mission of the New York City Criminal Justice Agency, Inc., is to assist the courts and the City in reducing unnecessary pretrial detention.

The Research Sample The sample for this study included every arrest from 2012 through 2015 with a top charge of criminal possession of marijuana in the fifth degree. Most marijuana arrests in New York City are made under this statute, §221.10 of the New York Penal Law (see box below).

Both prosecuted and non-prosecuted arrests are included in the research sample and in all analyses unless otherwise specified.

PL §221.10 §221.10 of the New York Penal Law is criminal possession of marijuana in the fifth degree, a class B misdemeanor.

Persons found in possession of any amount of marijuana, either “open to public view” or “burning” (being smoked) can be charged under subsection 1 of this law. P ossession of more than 25 grams of marijuana is a crime under subsection 2 of the law, which does not require the marijuana to be in public view or burning.

Historically, the vast majority of people arrested for marijuana offenses in NYC are charged with PL 221.10. In 2015, this charge comprised 69% of all marijuana arrests, and 86% of arrests for possession of marijuana.

The only other misdemeanor marijuana possession charge is PL 221.15, a class A misdemeanor (for amounts over 2 ounces). There is also a non-criminal charge, PL 221.05, which is classified as a violation. Suspects can be arrested for the violation, but summonses are more frequently issued for this offense.

Three felony possession charges (for varying amounts over 8 ounces) account for fewer than 2% of all arrests for possession of marijuana.

The analyses addressed three research questions: •

How did arrest volume, defendant demographics, and case outcomes for low-level marijuana arrests change from 2012 to 2015?

•

What was the impact of the two major marijuana policies implemented during this period?

•

What is the extent of ethnic disparity in the handling of low-level marijuana arrests, and how was this disparity affected by the policy changes?

Dat a Used in t h e Analyses Data for this study came from annual datasets compiled from the CJA database by the Research staff with the assistance of the Information Systems Department. The analyses used the 2012 and 2013 annual datasets, which tracked case outcomes to June 30, 2014; and the Interim 2014-15 dataset, which included arrests in 2014 plus the first two months of 2015. These cases were tracked through February 2015.

In order to update the analyses presented in the full report, this Brief contains additional data for arrests through the end of 2015, utilizing a recently compiled dataset that tracks cases through February 29, 2016.

The CJA database contains background and court processing information on virtually every adult arrest in New York City. The Agency receives arrest data from the New York City Police Department (NYPD), case-processing information from the Office of Court Administration (OCA), and defendant information from the CJA prearraignment interview.

Some defendants were arrested multiple times during the research period. Each arrest for the same defendant during the study period is treated as a separate event.

ANNUAL TRENDS IN LOW-LEVEL MARIJUANA ARRESTS 2012-2015 Arrest Volume: Figure 1 shows that the overall volume of PL 221.10 arrests declined by 59% from 2012 to 2015, with the steepest drop in 2015. More than 40,000 people were arrested on this charge in 2012, compared to fewer than 17,000 in 2015.

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Until 2014, DAT volume remained level while overall volume declined steadily. After 2014, however, the number of DAT arrests dropped sharply, from 20,995 to 13,059. The decline from 2012 to 2015 was 37%, all of which happened in 2015.

Custodial arrests declined by 82% during the study period.

In 2012 marijuana arrests were about equally divided between DAT and custodial arrests; by 2014 and 2015, DATs outnumbered custodial arrests by more than 3 to 1.

May 2016

Research Brief Figure 1 Arrest Volume for PL 221.10 2012 – 2015

50000

29,651

30000

20,995

20,386

8,722

10000 0

Hispanic 50

Other

16,792 13,059

-59% -37%

3,733

-82%

Ethnicity is recorded by CJA staff during the Agency’s interview of defendants held for arraignment. In cases of defendants who were not interviewed (primarily those who were released on a Desk Appearance Ticket), the source of ethnicity data is the NYPD arrest report.

Cases for which no ethnicity was recorded are not included in the basis for percentaging. The number of cases with missing ethnicity data was particularly large in 2015 because the dataset was compiled before ethnicity data from the NYPD were added for cases with no CJA interview.

Figure 2 Ethnicity Of Defendants Arrested for PL 221.10 2012 – 2015

Black

Asian

5,902

Percent change 2012 to 2015

2012 2013 2014 2015

Ethnicity: The ethnic composition of marijuana defendants changed very little from 2012 to 2015. Figure 2 shows that approximately half were black, slightly over a third were Hispanic, and 3% were Asian. (Asians were under-counted in 2012 because of an NYPD coding glitch.)

White

26,900

20,929

20,609

20000

—All Arrests —DAT —Custodial

40,995

40000

50%

50% 37%

35%

40

50%

49%

38%

37%

30 20

11%

10 0

1% 1%

9%

3% 1%

9%

3% 1%

8%

3% 1%

2012 2013 2014 2015

N= 40,264 (100%) Missing ethnicity data = 731 Total N = 40,995

Figure 3 DAT Issuance Rates for PL 221.10 Arrests 2012–2015 78% 78% 80 71% 70 60 50% 50 40 30 20 10 0 2012 2013 2014 2015

N = 40,995 29,651 26,900 16,792

Research Brief #40

29,618 (100%) 33 29,651

26,897 (100%) 3 26,900

DAT Issuance: Figure 3 shows that the proportion of low-level marijuana arrests in which a DAT was issued rose from 50% in 2012 to 71% in 2013, then to 78% in 2014 and 2015.

DAT FTA: Figure 4 shows that in 2012 nearly a quarter of marijuana DAT defendants failed to appear for their scheduled arraignments. The FTA rate rose to 26% in 2013 and to 27% in the each of the following two years.

15,888 (100%) 904 16,792

Figure 4 FTA Rates for DAT Arraignment PL 221.10 Arrests 2012–2015 (Prosecuted DAT Cases)

30 25

24%

26%

27%

27%

20 15 10 5 0

2012 2013 2014 2015 N = 18,490 19,630 18,004 11,344

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Time from Arrest to DAT Arraignment:

Figure 5 shows that the length of time between arrest and arraignment increased from 2012 to 2014, then reversed course in 2015. A median of 40 days elapsed from arrest to arraignment in marijuana DAT cases in 2012, 49 days in 2013, and over two months (65 days) in 2014. Then in 2015 the median decreased to 48 days. ( The median is the midpoint: an equal number of cases fall above and below the median.)

Prior research has shown that longer arrest-toarraignment times are associated with higher FTA rates, but the reduction in elapsed time in 2015 was not accompanied by a lower FTA rate in this sample.

Conviction:

Figure 6 shows that conviction rates are much lower for defendants in DAT arrests. In 2012, 26% of DAT arrests in the marijuana sample ended with a conviction, compared to 50% of custodial arrests.

Throughout the study period, the conviction rate for custodial arrests was almost double the rate for DATs. Conviction rates for both arrest types fluctuated over the four years, ending at their lowest levels in 2015, when 23% of DATs and 42% of custodial arrests ended in conviction.

Incarceration: Figure 7 shows that a jail sentence is less likely for defendants who were issued DATs than for those who were taken into custody at arrest. Among convicted marijuana offenders in 2012, 26% who had been issued a DAT were sentenced to jail (almost all time served), compared to 48% among custodial arrests. By 2015, this difference had narrowed but did not disappear: the rate of incarceration for convicted defendants in DAT arrests in the sample rose to 32%, while it fell to 41% for custodial arrests.

Charge Reduction: Each case in the research sample began with a top charge of 221.10, a class B misdemeanor, but the charge was reduced in over 70% of all convictions in each year of the study (Figure 8). That percentage rose to 80% in 2015.

The charge was even more likely to be reduced in DAT arrests: in 2012, 83% of convicted DAT defendants had the charge reduced, compared to 65% of defendants in custodial arrests. By 2015, the gap had narrowed: 83% (DAT) compared to 76% (custodial). Convictions were usually to noncriminal violations: unlawful possession of marijuana (PL 221.05) or disorderly conduct (PL 240.20).

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Figure 5 Median Number of Days From Arrest to DAT Arraignment PL 221.10 Arrests 2012–2015 (Prosecuted DAT Arrests) 2012 (18,490)

40

2013 (19,630)

49

2014 (18,004)

65 48

2015 (11,344)

Figure 6 Conviction Rates PL 221.10 Arrests 2012–2015 (All Prosecuted Arrests) DAT

60

50%

50

38%

40 30

51% 28%

26%

Custodial 47%

35% 25%

30%

All 42%

23%

27%

20 10 0

2012 2013 2014 2015

Figure 7 Incarceration Rates PL 221.10 Arrests 2012–2015 (Convicted Cases Only) DAT 48% 41%

50 40 30

26%

48% 40% 34%

Custodial

44% 35% 30%

All

41% 35% 32%

20 10 0

2012 2013 2014 2015

Figure 8 Charge Reduction PL 221.10 Arrests 2012–2015 (Convicted Cases Only) 100 80

DAT 83%

71% 65%

77% 74% 68%

Custodial

79% 77% 73%

All

83% 76%80%

60 40 20 0 2012 2013 2014 2015

May 2016

Research Brief IMPACT OF RECENT POLICY CHANGES In order to isolate the impact of each policy separately, we created subsamples consisting of arrests during the months immedately following each policy and the same months a year earlier.

Marijuana DAT Policy Replaces custodial arrest with a DAT for all eligible suspects arrested on a charge of 221.10.

Implemented: May 2013 Pre-DAT Policy subsample: Arrests May-December 2012 (8 months) Post-DAT Policy subsample: Arrests May-December 2013 (8 months) Figure 9 Arrest Volume (PL 221.10) Pre/Post DAT Policy —All Arrests 30000 25000

10000 5000 0

12,705

Figure 10 DAT Issuance Rate (PL 221.10) Pre/Post DAT Policy

18,972 14,773

Percent change -24% +16%

4,199

-66%

12,345

Pre

Black

Post

80 70 60 50 40 30 20 10 0

78% 51%

8,649

8000 6000 4000 2000 0

—All Arrests —DAT —Custodial

6,669 1,980

Pre

3,485 2,535 950

Post

Research Brief #40

Percent change -60% -62% -52%

80 60

44%

55%

86% 74% 80%

70%

20

Pre Post

0

Pre

9,466 7,091 1,611

Pre/Post comparisons: Arrest volume declined by 60%, and DAT arrests declined even more (-62%, Figure 12). The DAT issuance rate fell from 77% pre-policy to 73% post-policy (Figure 13).

The decline in DAT issuance following the summons policy affected whites more than blacks or Hispanics, further reducing ethnic disparity. Before the policy, 75% of blacks compared to 86% of whites received a DAT, a difference of 11 percentage points (Figure 14). Post-policy, the difference was 7 percentage points (72% vs. 79%).

Figure 14 DAT Issuance Rate (PL 221.10) By Ethnicity Pre/Post Summons Policy Black

77%

Post

N= 12,978 8,549 2,554

Figure 13 DAT Issuance Rate (PL 221.10) Pre/Post Summons Policy

80 70 60 50 40 30 20 10 0

White

100

N= 25,050 18,972

Figure 12 Arrest Volume (PL 221.10) Pre/Post Summons Policy

Hispanic

40

Marijuana Summons Policy Replaces arrest on the charge of PL 221.10 with a summons on the non-criminal charge of PL 221.05 for eligible suspects found in possession of 25 grams or less of marijuana.

Implemented: November 2014 Pre-Summons Policy subsample: Arrests November 2013 – February 2014 (4 months) Post-Summons Policy subsample: Arrests November 2014 – February 2015 (4 months)

10000

Figure 11 DAT Issuance Rate (PL 221.10) By Ethnicity Pre/Post DAT Policy

—Custodial

26,050

20000 15000

—DAT

Pre/Post comparisons: Arrest volume declined by 24%, but DAT arrests rose by 16% (Figure 9) because of a higher DAT issuance rate. DAT issuance rose from 51% pre-policy to 78% post-policy (Figure 10).

Ethnic disparity in DAT issuance was reduced by the policy because the issuance rate rose much more for blacks and Hispanics than for whites (Figure 11). Before the policy, 44% of blacks compared to 70% of whites received a DAT, a difference of 26 percentage points. Post-policy, the difference was 12 percentage points (74% vs. 86%). (Other ethnicities were omitted from Figures 11 & 14.)

100

73%

Pre Post

N= 8,649 3,485

80

75% 78%

Hispanic 86%

White 79% 72% 73%

60 40 20 0

Pre N= 4,008 3,308 728

Post

1,659 1,251 249

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ETHNIC DISPARITY IN LOW-LEVEL MARIJUANA ARRESTS MULTIVARIATE ANALYSES We used logistic regression to examine the impact of ethnicity in influencing outcomes while controlling for the simultaneous effects of multiple other factors. The two outcomes examined were the issuance of a DAT at arrest and the likelihood of conviction among prosecuted cases.

The models presented below are for 2015 arrests, using data that were not yet available when the full report was written. The cumulative impact of both policy changes is reflected in results.

Figure 15 Model Predicting DAT Issuance All Arrests With Top Charge of PL 221.10 in 2015 (N = 15,888) Predicted probability of DAT issuance, controlling for all other variables in the model 86% 86% 100 79% 80% 78% 80% 76% 78% 74% 77% ref 76% *** *** ns *** ref ns ref *** * ns 80

77% 83% *** ref

60

80% 77% ref *** 58% ***

53% ***

40 20 0

Wht Blk Hisp Oth Man Bnx Bkn Qns SI M F 20+ <20 1 2 3 4+

ETHNICITY BOROUGH SEX AGE NUMBER OF CHARGES Asterisks indicate that the predicted probability for the group is signficantly different from the probability of the reference category (first bar).

The level of statistical significance is indicated by the number of asterisks: * p<.05; **p<.01; ***p<.001; ns=not statistically significant.

Exhibit 15 shows the predicted probability of DAT issuance in marijuana possession arrests for each ethnic group in 2015, controlling for the effects of borough, sex, age, and the number of arrest charges.

All of the control variables influenced DAT issuance independently. In 2015, a DAT was most

likely to be issued when the arrestee was female (86%) and least likely when there were more than two arrest charges (58% or less).

However, even after taking all these factors into account, whites arrested for possession of marijuana were still significantly more likely to receive a DAT (86%) than blacks (76%) or Hispanics (79%).

Figure 16 Model Predicting Conviction Prosecuted Arrests With Top Charge of PL 221.10 in 2015 (N = 12,477) Predicted probability of conviction, controlling for all other variables in the model 80 70 60 34% 31% 50 40 *** *** 30 16% 20 ref 10 0

21% **

43% 37% ref 32% ns 22% *** 20% *** ***

33% ref

13% ***

Wht Blk Hisp Oth

35% ref

15% ***

40% 29% 32% *** ref **

58% ***

40% ref 27% ***

Man Bnx Bkn Qns SI M F 20+ <20 1 2 3 4+ No Yes ETHNICITY BOROUGH SEX AGE NUMBER OF CHARGES DAT

Exhibit 16 shows the predicted probability of conviction for each ethnic group, controlling for the effects of borough, sex, age, the number of arrest charges, arrest type, and pretrial release status.

Conviction was most likely among defendants who were detained throughout the pretrial period (62%) and those with four or more arrest charges (58%). Conviction was least likely among females

6

46% 29% *** ref

62% ***

Disp Rel Det PRETRIAL RELEASE

(13%) and defendants under 20 years old (15%).

A DAT arrest type also lessened the probability of conviction (27%, compared to 40% among custodial arrests).

After all these factors were taken into account, whites arrested for possession of marijuana were still significantly less likely to be convicted (16%) than blacks (34%) or Hispanics (31%).

May 2016

Research Brief Summary and Conclusions This research has focused on the possession of marijuana in the fifth degree, a class B misdemeanor under §221.10 of the New York State Penal Law. For years, this crime was at the very top of the list of all arrest charges in volume in New York City.

However, as a result of recent policy decisions, the number of arrests with a top charge of 221.10 has fallen from over 40,000 in 2012 to fewer than 17,000 in 2015. In this short time span, PL 221.10 dropped from first to seventh place in arrest volume.

The greatly expanded use of DATs that began in 2013 has had an ameliorating influence on case outcomes in marijuana possession cases. When defendants are issued a DAT at arrest, the benefits go far beyond freedom while awaiting arraignment.

A lower likelihood of conviction is also associated with DATs, and the charge is more likely to be reduced to a non-criminal offense, thereby lightening the sentence. In 2012, a DAT was issued in half of 221.10 arrests; that percentage rose to more than three quarters in 2015. This was accompanied by lower conviction and incarceration rates and a greater probability of reduced charges.

The marijuana summons policy accelerated an already steep decline in arrest volume, but predictions that arrests for marijuana possession would virtually disappear did not materialize. Persons found with marijuana in their possession can still be arrested and charged with 221.10 if they are smoking it in public, or if the amount is over 25 grams. Other disqualifiers include an outstanding warrant or being charged with another fingerprintable offense in addition to possession of marijuana. Our data suggest

that warrants and multiple charges account for very few of the marijuana arrests in 2015 (not shown), so it appears that smoking in public and amounts over 25 grams are the primary triggers for the arrests that continue to be made.

The summons policy could indirectly add to the arrests, however, if defendants who are otherwise elibible for a summons are disqualified because of an outstanding warrant for failure to appear on a prior summons. CJA does not receive data on warrants issued by the summons courts so the extent to which this is a factor in ongoing marijuana arrests could not be analyzed in the current research.

The impact of all this on ethnic disparity is mixed.

Blacks and Hispanics comprise well over 80% of all defendants in marijuana possession cases, so they are the prime beneficiaries of fewer arrests, the higher probability of being released at arrest with a DAT rather than being taken to jail, and generally more favorable outcomes. Moreover, the disparity between whites and nonwhites in DAT issuance rates was reduced by both policies.

However, the over-representation of blacks and Hispanics among marijuana arrests did not change.

There were fewer arrests in 2015, but the proportion of defendants who were black or Hispanic actually rose a few percentage points, from 85% in 2012 to 88% in 2015. And, although the likelihood of conviction fell for all, it fell most for whites. In 2012, the predicted probability of conviction for whites was 26%, compared to 42% for blacks (data not shown).

By 2015, that 16 percentage-point difference had grown to 18 points (16% compared to 34%).

Policy Implications • The marijuana DAT policy demonstrated that it is possible to expand DAT issuance to a large majority of marijuana arrests with only a small increase in FTA, and that doing so can alleviate ethnic disparity in this early, important decision point in case processing. This finding suggests that expanding the use of DATs to other misdemeanor charges could have similarly beneficial results.

• The marijuana summons policy has been hugely successful in reducing arrest volume, despite the many disqualifying factors. However, one issue of concern that we were unable to investigate with available data is the extent to which offenders who receive summonses end up back in criminal

Research Brief #40

court because of failure to appear for arraignment on the summons. It is impossible to assess the full impact of the marijuana summons policy without data from the summons courts, which were unavailable to CJA. • Ethnic disparity in the handling of marijuana arrests remains a cause for concern, primarily at the point of arrest but also throughout case processing.

Although disparities in likelihood of receiving a DAT at arrest diminished following both policy initiatives, the chance of being offered a DAT remains significantly worse for nonwhites than for whites. Disparities in other outcomes — such as likelihood of conviction — were not alleviated by either policy.

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Research Brief from No. 40 (May 2016) Marijuana Possession Arrests in New York City — How Times Have Changed (Mary T. Phillips) The New York City Criminal Justice Agency, Inc. 52 Duane Street New York, NY 10007

TO:

Research Brief from No. 40 (May 2016) Marijuana Possession Arrests in New York City — How Times Have Changed (Mary T. Phillips) Forthcoming: Risk of Re-Arrest After JO Case Disposition No. 41 (September 2016)

by Marian Gewirtz

Most recently published in this series:

No. 39 (February 2016) Re-Arrests of Homeless Defendants in NYC (Peterson) No. 38 (October 2015) Juvenile Offenders: Re-Arrest and Court Outcomes (Gewirtz) No. 37 (May 2015) Arrested and Homeless in NYC (Peterson) No. 36 (January 2015) Impact of the Queens Supervised Release Program on Legal Outcomes (Solomon) No. 35 (September 2014) Paying For Bail On Credit (Phillips) No. 34 (May 2014) Desk Appearance Tickets: Their Past, Present, and Possible Future (Phillips) No. 33 (January 2014) Case Processing in Brooklyn’s Integrated DV Court (Peterson) No. 32 (May 2013) Queens Supervised Release: A Brief Program Description (Curbelo et al.)

No. 31 (January 2013) The EVE Project (Peterson)

Reports available at www.nycja.org/library.php