Arresting Blacks for Marijuana in California: Possession Arrests in 25 Cities 2006-08 (part 5)

[note: the following is direct from the report]

As this report was going to press, Governor Arnold Schwarzenegger signed Senate Bill 1449. Beginning in 2011, possession of 28.5 grams (an ounce) of marijuana will be an infraction rather than a misdemeanor. People found possessing a small amount of marijuana are to be given a summons and fined, but the offense will not automatically create a permanent criminal record easily found on the Internet. This is certainly a less punitive policy and a victory for criminal justice reform.

But this one important change leaves in place other unfair consequences of the marijuana possession offenses and of the policing strategy that produces them. And making marijuana possession an infraction creates other undesirable consequences. In what follows we briefly review some of what can be anticipated at this early stage. In discussing the shift from misdemeanor to infraction, one perceptive observer quoted in the Oakland Tribune pointed out: "There's no reason to believe policing practices are going to change simply because the technical nature of the offense has." Indeed, as has happened in other U.S. cities, police may well feel free to give out more summonses for an infraction.

Both misdemeanors and infractions are results of routine policing practices which disproportionately focus on low-income black and Latino neighborhoods and their young people. Police departments have "productivity goals" (or quotas) for the summonses and arrests that patrol officers should make. Because the routine police stops are much more frequent in black and Latino neighborhoods, they unfairly produce more marijuana infractions and misdemeanors for young people in those neighborhoods. And this goes on despite the fact that U.S. government studies repeatedly find that young whites use marijuana at higher rates than young blacks and Latinos. None of this will change because of the new legislation.

If young people stopped by police are found to have a bit of marijuana in their pockets or possessions, and do not have sufficient identification papers, they can still be handcuffed and taken to the police station to check their fingerprints on a database. In the course of the police stop, the officers may add other charges including disorderly conduct or resisting arrest. In 2009 the New York Times reported that police in San Jose, California made many arrests in which the only charge was "resisting arrest." Latinos are 30% of San Jose's population, but Latinos were 60% of the people arrested when "resisting arrest" was the only charge. A reporter for the San Jose Mercury News told the Times that:

"Some people call these 'contempt of cop' or 'attitude arrests.' Contempt of cop arrests are not about committing an underlying crime but disrespecting or disobeying officers. A large segment of the city’s Latino population feels particularly targeted." (See: NY Times, "In San Jose, Resisting Arrest Is Often the Only Reason for an Arrest" By Michelle Quinn, Nov 1, 2009. At: http://bayarea.blogs.nytimes.com/2009/11/01/san-josepolice-and-resisting-arrest-cases/?emc=eta1)and-resisting-arrest-cases/?emc=eta1

Again, the "contempt of cop" arrests often come about when the police are writing summonses for infractions, or just investigating the suspicion of an infraction. And that happens much more often in only certain neighborhoods. Although infractions usually can be paid by mail, many young people, especially those from low-income families, do not have credit cards or checking accounts and will therefore go to the court to pay them. Many will not easily be able to make it to court by the required day because of demands of jobs, school, and family. Under California law, failure to pay the fine for an infraction is itself a misdemeanor, a "fingerprintable" offense. When the person eventually appears before a judge or magistrate, the infraction charge may be dropped if the person pleads guilty to the "failure to pay" misdemeanor. This results in a criminal record and often a period of probation for an open criminal offense, with a new set of damaging collateral consequences.

Contrary to some media reports, making marijuana possession an infraction is not technically or legally "decriminalization." Under California law, an infraction is still a criminal offense, a crime. Although an infraction does not produce a police "rap" sheet, there are court records of infractions for marijuana possession that may still appear in some criminal justice databases. For immigration status, credit reports, occupational licensing, and other official purposes, the infraction can still show up as a "drug offense" with some of the same consequences as a misdemeanor. As this report has documented, all the above consequences that can follow from being stopped by the police and given a marijuana infraction are two to twelve times less likely to happen in California's white middle-class neighborhoods.

In his signing statement, the Governor indicated what he regards as the impact of the new law. "The only difference," between a misdemeanor and an infraction, he wrote, "is that because it is [currently] a misdemeanor, a criminal defendant is entitled to a jury trial and a defense attorney." From the Governor's perspective, changing the offense from a misdemeanor saves money by denying defendants in marijuana possession cases access to a public defender and the right to have a jury trial. Moving marijuana possession from a misdemeanor to an infraction reduces some punitive consequences, but it comes at the considerable cost of depriving people of fundamental rights.

Finally, there is one other effect of the change of marijuana possession from a misdemeanor to infraction with serious consequences for public debate and policy. When marijuana possession becomes an infraction, there will be no way for reporters or researchers to find out how many summonses for the infraction of marijuana possession are being given out. Misdemeanor arrest data is available from the California Department Justice, but not data on infractions. Without a change in law or policy, the basic information presented in this report will not be available. In 2012, one year after the infraction goes into effect, nobody will be able to prepare a report like this one showing in each California county and city how many blacks, Latinos, or young people were given summonses and fined under the new law. In effect, the policing of marijuana possession will become even more hidden and invisible.