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Brooklyn Prosecutor Limits When He’ll Target Marijuana

After months of resistance from the New York Police Department, the Brooklyn district attorney's office announced on Tuesday that it would immediately carry out its plan to stop prosecuting most low-level marijuana cases.

The policy was proposed in a draft confidential memorandum in April, but was delayed as prosecutors and police officials tried to iron out their differences in meetings and phone calls.

Brooklyn District Attorney Kenneth Thompson
Seth Wenig | AP
Brooklyn District Attorney Kenneth Thompson

The policy described in a memo dated Tuesday still offers plenty of exceptions: Only those with no criminal records, or minimal ones, qualify, and the cases of people caught smoking in public spaces — and especially around children — will not automatically be thrown out.

The district attorney, Kenneth P. Thompson, said in the memo that the policy was set up to keep nonviolent people, "and especially young people of color," out of the criminal justice system; an open case, Mr. Thompson wrote, can lead to problems with jobs, housing and school for defendants.

The policy became an early criminal justice policy test for Mayor Bill de Blasio, a fellow Democrat who had criticized police arrest practices over marijuana in terms similar to Mr. Thompson's. But in negotiating the policy, the mayor seemed to defer to his police commissioner, William J. Bratton, a proponent of the "broken-windows" approach to policing that holds that stopping lower-level crimes leads to stopping major crimes.

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The policy places the Police Department in what its officials say is a difficult position: There will be one set of enforcement rules in Brooklyn, and another in the four other boroughs.

In response to the policy, Commissioner Bratton released a statement saying that he understood that Mr. Thompson had the prerogative to decline to prosecute any criminal offense in Brooklyn.

"However, in order to be effective, our police officers must enforce the laws of the State of New York uniformly throughout all five boroughs of the city," Mr. Bratton said. "Accordingly, the Kings County policy change will not result in any changes in the policies and procedures of the N.Y.P.D."

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Over the past 15 years, marijuana arrests in New York have soared, partly because a rising number of stop-and-frisk encounters led to searches of people's pockets.

There were 8,150 cases in Brooklyn in which the top count was a minor marijuana possession charge in the year ending June 30, according to the memo on Tuesday. Marijuana arrests have decreased during the first six months of this year, compared with the same period in 2013.

The police were initially wary that the policy was a blanket one, covering every arrest, but the Police Department was mollified when it became clear that there would be a "case-by-case" review, according to a person involved in the negotiations.

Another specific concern was whether Mr. Thompson's office would prosecute members of crews on marijuana-related arrests. Such arrests can be used by the police as part of its larger antigang strategy in specific precincts, and department officials want to preserve that option, the person said.

Police officials also pushed for the ability to make cases on someone smoking or holding lighted marijuana, which they said was a public-safety issue, particularly if the person was somewhere like a playground, a law enforcement official said.

The district attorney's office agreed to add language in its policy that the office may prosecute a defendant charged with smoking or holding lighted marijuana in a public place.

Whether they are smoking or holding marijuana, 16- and 17-year-olds will be routed through a diversion program so they "may be successfully redirected onto a healthier path," the memo reads.

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Under the new policy, those arrested for marijuana-related offenses in Brooklyn will still be taken to the precinct station house, and then be sent to central booking, where they would await the next day's in-court arraignment in a holding cell. Or, the police may give the offender a desk appearance ticket for court on a given date.

If the district attorney decides not to prosecute, and the person is in the system, the office will tell the police to free the person. If the person has received a desk appearance ticket, and the district attorney decides not to prosecute, the office will send a letter telling the person that the case will not be prosecuted and that there is no need for a court appearance. In both instances, the offender's fingerprints will be destroyed.

The policy covers possession of marijuana in the fifth degree, a misdemeanor for either holding or burning marijuana in the open, or possessing up to two ounces of marijuana; and unlawful possession of marijuana, which is a violation.

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The wording in the memorandum seems to reflect the political nature of the negotiations; in one passage, which was not part of the draft memo, the district attorney pays homage to the police.

"The policy does not undermine the authority of the police to enforce the law," the memo read. "This office respects the officers of the New York City Police Department."

"We recognize that the possession of marijuana is illegal in this state, and that the police, when acting in a constitutional manner, have authority to arrest offenders who break the law."

However, prosecutors believe the new policy will result in a better use of the office's resources, and be more cost-effective.

But the primary reason for the new policy, the memo continues, is because the district attorney has a duty to reform and improve the administration of justice, not merely to convict.

In the majority of low-level marijuana possession cases, Mr. Thompson wrote, "obtaining a conviction against the defendant does not advance public safety with fairness and justice, and, indeed, might well sabotage that goal."

-- By Stephanie Clifford and Joseph Goldstein of The New York Times