As bad as this week was for Democrats, it was a good week for criminal justice reform. Really good. Three jurisdictions legalized pot by ballot initiative. Another few reformed their marijuana laws, or instituted other significant reforms to their criminal systems.
And while nothing of the sort was on the ballot in New York City, some major changes may be brewing there. Anonymous sources told the New York Post this week that the police department quietly cut a major program to ensnare pot dealers by soliciting pot undercover in what is known as a “buy-and-bust.”
According to the sources, Chief of Narcotics Brian McCarthy told borough narcotics heads that cops should stop conducting “buy-and-busts” for pot so they can instead focus on other controlled substances. “There’s a pill and heroin problem in the city, and we have to focus on that,” he reportedly said.
The city also has a marijuana arrests problem, which the sources speculated was the reason for the change. Mayor Bill de Blasio campaigned against the rampant pot arrests in New York City. But recent statistics show that monthly arrests for pot possession have actually gone up in 2014, and that 86 percent of arrestees were black or Latino, sparking the ire of civil rights groups.
Meanwhile, the head of a union that represents NYPD police sergeants, Ed Mullins, had a rather extreme reaction to the change in the city’s arrest policy, telling the New York Post, “If the current practice of making arrests for both possession and sale of marijuana is, in fact, abandoned, then this is clearly the beginning of the breakdown of a civilized society.”
Overblown rhetoric notwithstanding, one thing Mullins gets right is that “buy-and-busts” do indeed target sales of marijuana and not just possession, by setting up a fake purchase and then arresting the person once they sell something to the undercover officer.
So is New York cutting back on busts of small-time dealing, too? Maybe. Or maybe the city just recognized that the undercover snares often target those who wouldn’t have otherwise been dealing at all.
By the account of former New York prosecutor-turned-defense lawyer John Buza, that’s how these “buy-and-busts” often work. Because cops don’t know who to approach, “They got to the most destitute, homeless, drug-addicted person they can find based on their looks,” Buza explains. They then engage that person until he or she agrees to sell them drugs for money. That person frequently leaves to go find an actual, established drug dealer, and comes back with drugs that they can then sell to the undercover cop either at a mark-up, or just keep some of the drugs for themselves.
“In reality, the ‘dealer’ took the under cover’s money and he bought the drugs from the real dealer who isn’t in area and isn’t stupid enough to deal drugs to people he doesn’t know,” Buza writes in his blog. “Do the police then go out and try to find the guy who actually is selling drugs on the street? Why bother? After all, they already got their guy.”
A public defender in San Francisco described similar accounts to SF Weekly in 2010, in which the person who is ultimately arrested is nothing more than the “broker” of the deal. A spokeman for the District Attorney there admitted that these “buy-busts” sweep up some drug addicts, but that they are worth the cost of also busting some major dealers. Senior public defender Rebecca Young countered that those who deal drugs for a living make up “maybe 1 percent” of all buy-busts, while the stings account for 40 percent of the cases in San Francisco courts.
This disproportionate targeting of those who are at the bottom of the drug ring ladder — often only as users — is not unusual in drug-war law enforcement, which even judges have lamented often punishes the lowest-level actors or even those who were simply lured by undercover cops to commit wrongdoing through laws intended for kingpins.
NYPD could shift this dynamic by ending buy-and-busts, but only if it takes genuine implementation of the policy more seriously than it takes, for example, New York’s pot decriminalization law.
In another potential step forward, the New York Times reported over the weekend that the NYPD may stop arresting people for marijuana possession, and issue tickets instead. A 1977 law decriminalized marijuana possession in New York State, meaning that those possessing small amounts of marijuana should not have been arrested anyway unless the pot was in “public view.” But for years, NYPD officers have been exploiting this exception during stop-and-frisks to consider marijuana seized or revealed during a stop as in “public view.” It is not clear whether the new NYPD policy would simply end this practice, or would go a step further in decriminalizing other offenses.