State Assembly Holds Hearing on Legalizing Pot

This article appeared on ManhattanExpressNews.nyc january 5, 2018

BY NATHAN RILEY | Demanding that New York State stop racist law enforcement patterns by legalizing adult use of marijuana, advocates told members of the State Assembly, including Health Committee chair Richard N. Gottfried, a West Side Democrat, that police stops are traumatizing black and brown New Yorkers.

At a Jan. 11 hearing in Lower Manhattan, speaker after speaker insisted that being searched, handcuffed, marched into court, and chained to other arrestees in the morning is often traumatizing.

“Marijuana decriminalization has fallen short and will continue to do so,” Kassandra Frederique, the New York State director of the Drug Policy Alliance, contended.

Even with reductions in stop and frisk, it remains up to the police officer to distinguish between private possession and possession in public view, which can trigger a criminal arrest. Those nabbed, overwhelmingly black and Latino New Yorkers, are fingerprinted and given retinal scans. Police officers have no immediate way of knowing if their victim faces deportation or loss of a job or a scholarship, but no matter what the arrestee is left cowed and confused.

Over the past 20 years, more than 800,000 New Yorkers living in a “decriminalized” legal environment have faced criminal charges. In 2016, there were 20,133 arrests, more than 85 percent of them among African-American and Latinx New Yorkers and one-third of them under 21.

The Start SMART (Sensible Marijuana Access through Regulated Trade) New York campaign supplied most of the witnesses at a joint hearing of the Assembly Health, Codes, and Alcoholism and Substance Abuse Committees. With Codes chair Joe Lentol of Brooklyn out sick, Gottfried presided with fellow West Sider Linda B. Rosenthal, who chairs Alcoholism and Substance Abuse. The three committee chairs have primary oversight of legislation legalizing marijuana that is sponsored by Buffalo’s Crystal D. Peoples-Stokes, who traveled to the city for the hearing. The effort is championed in the Senate by East Side Democrat Liz Krueger.

Frederique demonstrated the dire need for reform with horrifying stories of marijuana arrests gone wrong. Two New York City detectives were indicted for raping an 18-year-old girl after searching her car for marijuana. Wayne Henderson, a 25-year-old New Yorker, died on Rikers Island after his parole was revoked for marijuana possession. One fifth of all parolees sent back to prison are violated for pot-related infractions. In the Bronx, 69-year-old Mario Sanabria died during a no-knock search for marijuana. He was taking care of his 92-year-old brother-in-law, and the man named in the warrant was not at home. According to a July 21, 2017 New York Times story, the city’s Administration for Children’s Services separated Colyssa Stapleton from her children for months before it became clear she was a victim of a false marijuana arrest.

Other reasons advanced for legalizing pot included the tax revenue stream available to officials contending with an estimated $4 billion shortfall in state revenue and the opportunities for enhancing the medical marijuana program currently crippled by restrictions imposed by Governor Andrew Cuomo in 2014.

The hearing included testimony from two police professionals. Sheriff Barry Virts, from Wayne County on Lake Ontario, warned that legal pot would make the drug more easily available to young people, but Major Neill Franklin, a retired Maryland police officer who is executive director of LEAP, an organization of police officers opposed to prohibition, supported adult use. He argued that the illegal sellers use children to sell and deliver product because the young need the money and if arrested face lighter penalties.

The Assembly hearing took place amidst a roller coast ride for the emerging legal pot movement. On Jan. 1, legal sales began in California, but just three days later, US Attorney General Jeff Sessions terminated an Obama era policy of stepping back from federal prosecution of marijuana growth and sales operating legally under state law. Almost immediately, a cloud was cast over legal activities in eight states. The head of Alaska’s cannabis program, a police chief, immediately resigned.

In Colorado, however, where pot became legal four years ago, Democrats and Republicans rose in unison to protect their program. Republican Senator Cory Gardner warned Sessions he would block appointments at the Justice Department unless the AG backed down. Nancy Pelosi, the Democratic leader, defended California’s new law, insisting that protection of legal pot sales be in the budget with a bar on federal dollars going to pot prosecutions in states that have legalized. Politico could find no member of Congress willing to speak up in favor of Sessions’ assault on adult-use legalization.

The legislature in Vermont responded to Sessions by becoming the second state sharing a border with New York to adopt adult-use. Massachusetts’ legalization will be implemented later this year. And New Jersey, under the leadership of Governor Phil Murphy, elected last year on a pro-legalization platform with 56 percent of the vote, is likely to follow suit soon.

The nation’s earliest legal pot initiatives came through the work of advocates who won popular referenda. In New York, the lead will be taken by legislators, not first and foremost the advocates. Following the Jan. 11 hearing, Gottfried, in a written statement, said, “The hearing was extraordinarily informative, and the testimony certainly conveyed the importance of the issue for people’s lives. People need to understand that this is not about just allowing a recreational activity; our current law destroys tens of thousands of lives a year. The hearing made that very clear.”

Last week, Cuomo announced a study of a “Regulated Marijuana Program” in consultation with “state agencies” that will look at the impact of “legalization in surrounding states.” There was no mention in the governor’s announcement of studying the program in Colorado, which now has four years of success under its belt.

Cuomo Needs to Step Up on Discovery Reform

BY NATHAN RILEY |

As anyone who spent three minutes listening to Mayor Bill de Blasio’s reelection message knows, crime is down.

New York City last year had the fewest murders since modern statistical methods started. And it isn’t just de Blasio; crime fell during Mayor Michael Bloomberg’s three terms. It’s been a long-term trend.

Yet New York still clings to the harsh laws and practices that catapulted the state into the age of mass incarceration during the 1980s. Undoing these law involves decreasing the leverage of police and district attorneys, who typically keep an arrestee behind bars while negotiating a plea. Almost invariably, they are people of color and/ or the poor.

PERSPECTIVE: The Long View

Reformers are trying to end this hammerlock by changing the laws on bail, speedy trials, and discovery. A glimmer of hope swept through the legal community when Governor Andrew Cuomo in his State of the State Address promised to “expand the discovery process to include disclosure of information in a timely manner including evidence and information favorable to the defense; intended exhibits; expert opinion evidence; witnesses’ criminal history information; and search warrant information.”

Discovery is where the other side in a legal case responds to your questions if it’s a civil case involving property, but in New York different rules apply in criminal cases where life and liberty are at stake. Disclosure becomes voluntary, the district attorney decides if the accused’s lawyer examines evidence. As Cuomo admitted in his recent address, New York law is indefensible, and there was hope that a cornerstone of the mass incarceration edifice would be removed.

Then the governor’s “Public Protection and General Government Act” was printed as part of his preliminary state budget and reformers felt betrayed.

“This bill does little to change a broken system” said ,, attorney-in-chief of criminal practice at the Legal Aid Society. “Prosecutors would have blanket authority to redact any witness-identifying information — fundamental evidence needed for the defense to fully understand and investigate cases and properly advise clients.”

The present system places the poor, especially those dependent on Legal Aid, in an impossible position. Their attorneys are asked to negotiate the length of a defendant’s prison term without knowing the strengths and weaknesses of the prosecutor’s case. An assistant district attorney has no obligation to inform the accused of their case, yet they press the defendant to enter a guilty plea. If a defendant declines to plead guilty, they could face a lengthy prison sentence should the prosecutor go for the top charge.

“If your accused of something, you want to know to what it is your accused of,” argued a freshman state senator, Jamaal Bailey of the Bronx. The very first bill Bailey filed in the Senate sought to reform New York’s discovery law. An attorney who practiced civil law, he rejected the secretive practices in the criminal law.

The system is palpably unfair. In a long New York Times enterprise story last August 7, the Queens and Manhattan district attorneys freely admitted that defense lawyers who have good relationships with prosecutors are “apt to get an earlier crack at discovery than others.” Hire a former assistant district attorney and the voluntary system works in your favor. Be poor with a public defender and you will operate in the dark.

Getting arrested is often a road to complete poverty. The Times story describes the case of Aaron Cedres, a bouncer in a Bronx nightclub, who was charged with gang assault after a fight broke out in front of the club. He knew he was innocent and that the cameras installed by his employer would prove he was innocent.

Yet on the top count, he faced a 25-year sentence, and the Bronx DA, feigning magnanimity and claiming that the security tapes looked bad, offered him a five-year sentence in return for a guilty plea. Cedres, a 25-year-old father who had never been arrested, stuck to his guns and insisted that his lawyer review the tape.

The DA refused and while this test of wills unfurled, Cedres lost his job, his wife and child left him, he became homeless, and he started to be arrested for quality of life crimes like fare-beating because $2.75 had become a big deal in his jobless life. With the felony charges hanging over his head, nobody hired him.

Finally, the tape was turned over showing Cedres had told the truth — he threw two punches separating the owner’s son from the brawling mob and pulled him to safety inside the nightclub. Cedres was guilty of nothing more than doing his job.

Reformers are asking that disclosure be mandatory and done promptly. The DAs claim that witnesses will be intimidated if the defense learns their names. Undoubtedly, that can be a problem, but prosecutors in Los Angeles and Chicago manage to protect their witnesses, and reformers argue in New York they could do so, as well, if discovery were mandatory.

Cuomo would leave the DAs in charge of disclosure by permitting them to redact information. According to James at Legal Aid, “Key information based on a number of subjective criteria, including the defendant’s ‘character’ and ‘reputation,’ would remain secret. It maintains the tactical advantages prosecutors have over defense attorneys.”

Joe Lentol, the longtime chair of the State Assembly Codes Committee, is blunt in pointing out that the obstacle to reform is the political influence of the district attorneys. “The rules are in their favor,” he said. “Why should they change it?”

This article was published in GayCityNews.Com on February 1, 2018