This 'Hypocritical' Loophole Can Get You Busted for Weed in NYC

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A version of this story was originally published by The Appeal, a nonprofit criminal justice news outlet.

On September 14, Sean (not his real name) was on a public sidewalk in Bay Ridge, Brooklyn, when an NYPD officer approached him. Sean, whose attorney asked he remain anonymous as his case was ongoing, was allegedly holding a cartridge of THC oil. For this, Sean was charged with a Class A misdemeanor, which carries up to a year behind bars. He was arrested and spent the night in jail.

If he had been smoking or holding the flower form of weed, the official policy would have been to let him go with a summons.

Two months ago, the NYPD said it would stop arresting most people for smoking pot in public and for low-level possession. Since September 1, the official policy has been to issue criminal summonses to people caught smoking (with a few exceptions). The Brooklyn district attorney also said the office would stop prosecuting most low-level marijuana possession cases in 2014 and said it would decline to prosecute most people for smoking in public in the spring of 2018.

Yet law enforcement is still pursuing criminal cases against people using cannabis or THC oil, which is one of the approved forms of medical marijuana in the state.

The DAs office has prosecuted at least 22 THC or cannabis oil cases since September 1, according to public defenders in Brooklyn. At least eight of those cases involved pretextual car stops, when law enforcement stops someone considered suspicious under the pretext of a traffic violation. In 13 of those cases, people were charged with possessing cannabis oil alone, without any other misdemeanor or felony charges.

Cannabis oil possession carries a harsher charge than regular marijuana possession: possession of a controlled substance in the seventh degree. Because the oil is classified as a controlled substance, the charge is a Class A misdemeanor, the same class used for low-level heroin and crack possession. Those convicted of the charge can be sentenced to up to a year in jail. People arrested for under two ounces of marijuana usually would be charged with unlawful possession of marijuana, which is a violation, or possession of marijuana in the fifth degree, which is a Class B misdemeanor punishable by up to 90 days in jail.

"The fact that a person is in possession of THC oil as opposed to the marijuana plant should not make any difference in whether a person is arrested or prosecuted, Scott Hechinger, senior staff attorney and director of policy at Brooklyn Defender Services, told The Appeal. This practice makes no sense. Ironically, one of the exceptions in the Brooklyn DAs policy is to continue prosecuting marijuana where the police say a person is creating a genuine nuisance, but THC oil and vaping are actually the least intrusive method of consumption.

While some people were issued desk appearance tickets, others, like Sean, were arrested and spent a night in jail before seeing a judge.

Oren Yaniv, a spokesperson for the Brooklyn DAs office, said the office declined to prosecute about 20 THC oil arrests this year and pointed to several policies aimed at reducing marijuana criminalization.

Our Office all but ended marijuana prosecutions this year, reducing the number of cases of smoking and possession by over 98 percent. We are also the only DA's office in the state working to erase past misdemeanor marijuana convictions, Yaniv told The Appeal in an email.

New York law categorizes THC oil not as marijuana, but as a controlled substancea designation that also includes certain medications that are legal to use with a prescription, Yaniv said. However, recognizing that THC is the active ingredient in marijuana, we believe that the two forms of marijuana should be treated similarly. So we have been applying our existing marijuana declination policy to THC oil since October. Later, he added that the declination policy applies only when marijuana is the top charge.

There were at least five THC oil cases brought to court in October, including one on October 25 where possession of THC oil was the top charge, according to its criminal complaint. The most recent THC oil case occurred this month. Yaniv said the case may have fallen outside the new policy.

City leaders have touted a drop in marijuana criminal cases since the policy was put into place September 1. Politico reported that low-level marijuana arrests were down by 90 percent citywide from September 2017 to September 2018; 161 people were arrested for marijuana possession in September. Racial disparities persist78 percent of the people who received criminal summonses between 2016 and 2018 were Black or Latinx. In July, the Brooklyn DAs office announced that prosecution on two low-level marijuana charges (unlawful possession of marijuana and possession of marijuana in fifth degree) have declined by over 90 percent, with the office not prosecuting 70 percent of marijuana cases by June 2018.

Aggressive enforcement and prosecution of personal possession and use of marijuana does not keep us safer, and the glaring racial disparities in who is and is not arrested have contributed to a sense among many in our communities that the system is unfair, Brooklyn District Attorney Eric Gonzalez said in his offices announcement.

I intend to maintain this approach and to only prosecute the most egregious ...

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