Clinic Professor Martha Rayner wrote an op-ed in Crains New York about Mayor DeBlasio’s stance in marijuana and drug enforcement laws.
The Police Department’s recent announcement that it will no longer arrest people for publicly smoking marijuana is welcome news, but carving out an exception for those with arrest histories violates the constitution, state statutes and is just plain bad policy.
Over half of all arrests will not result in convictions of any kind, yet this troubling practice is embedded in other areas of policing to the detriment of New Yorkers, most notably in the NYPD’s so-called “transit recidivist” policy that singles out subway riders with prior arrests for harsher treatment when they commit transit violations.
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This sudden and significant escalation of police power and intrusion on subway passengers’ privacy cannot be justified under the Fourth Amendment’s prohibition against unreasonable search and seizure.
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The transit and marijuana policies are also unconstitutional because they subject people with past arrests to highly intrusive body searches without legal justification. There is no reason to search a subway rider stopped for breaking the MTA rule prohibiting liquid in open containers—like coffee. So what reason is there to search the same passenger upon learning of a past arrest?
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The policy also breaks the law because most of the past arrests that trigger the new arrests have already been dismissed, yet remain in police databases in violation of state sealing statutes. Designed to protect New Yorkers from the negative consequences of arrests that do not result in criminal convictions, the law requires the police to seal all information in connection with an arrest that results in a dismissal or noncriminal conviction.