Philadelphia to ease marijuana penalty

The Philadelphia Inquirer
Monday, April 5, 2010

Philadelphia to ease marijuana penalty

By Craig R. McCoy, Nancy Phillips, and Dylan Purcell Inquirer Staff Writers

The city's new district attorney and the state Supreme Court are moving to all but decriminalize the possession of small amounts of marijuana for personal use in an effort to unclog Philadelphia's crowded court dockets.

Under a policy to take effect later this month, prosecutors will charge such cases as summary offenses rather than as misdemeanors. People arrested with up to 30 grams of the drug - slightly more than an ounce - may have to pay a fine but face no risk of a criminal record.

"We have to be smart on crime," said District Attorney Seth Williams, who took office in January. "We can't declare a war on drugs by going after the kid who's smoking a joint on 55th Street. We have to go after the large traffickers."

The shift is a major move in a reform agenda being hammered out in an unusual partnership between Williams and two members of the state Supreme Court, Chief Justice Ronald D. Castille and Justice Seamus P.
McCaffery, each of whom has a long background in criminal justice.

The goal is to sweep about 3,000 small-time marijuana cases annually out of the main court system, freeing prosecutors and judges to devote time to more serious crimes. The diverted cases amount to about 5 percent of the caseload in criminal court.

Police have been briefed on the policy shift, but appear less than enthusiastic about it.

"We're not going stop locking people up," Lt. Frank Vanore, a police spokesman, said Friday. He said marijuana possession remained illegal.

"We're going to stop people for it. . . . Our officers are trained to do that," Vanore said. "Whether or not they make it through the charging process, that's up to the D.A. We can't control that. Until they legalize it, we're not going to stop."

Some key aspects of the change remain unresolved.

Williams' top aides are still researching whether they can simply convert all the small marijuana arrests into summary charges of disorderly conduct. The shift might require a change in state law or in a city ordinance, his advisers say.

The new approach could generate hundreds of thousands of dollars in fines for the Philadelphia courts. While the amount has not been formally set, fines for minor drug possession would be $200 for first-time offenders and $300 for others.

"We are not looking at it as a moneymaker, but we could use those funds to focus on other efficiencies," said Castille, who was Philadelphia's district attorney from 1986 to 1991.

McCaffery, a homicide-detective-turned-lawyer, has talked of using some of the new cash to pay consultants to study further ways to reform the court system.

Castille called the new policy "appropriate" for a system loaded up with a total of 60,000 fresh cases a year, including the arrests of about 5,500 alleged heroin, cocaine, and methamphetamine sellers.

Of marijuana possession, the chief justice said, "It's a minor crime when you're faced with major drug crimes." Taking those cases out of the city's main courtrooms, he said, "unclogs the system."

The new approach was endorsed by Chris Goldstein, a leader of the Philadelphia chapter of the National Organization for the Reform of Marijuana Laws (NORML). His group has been quietly lobbying prosecutors and top Philadelphia narcotics police for change.

"The marijuana consumers of Philadelphia welcome this," Goldstein said.

McCaffery, appointed by Castille to oversee the ongoing shake-up of Philadelphia's criminal justice system, said the shift would help the courts focus on more serious cases.

"This will free up a lot of time in the courtroom," he said. "The fewer de minimis cases, the more time the judge and the prosecutor are going to have on other cases."

The new policy on marijuana is part of a wave of changes under review in response to The Inquirer's investigative report on the criminal justice system, "Justice: Delayed, Dismissed, Denied," in December.

The newspaper's reporting portrayed the Philadelphia system as in crisis, clogged with cases, bogged down by delay, and harsh on victims and witnesses. The paper found that Philadelphia defendants escaped conviction on all charges in nearly two-thirds of violent-crime cases - one of the lowest conviction rates in the nation.

Williams, working with the two justices and others, is also moving forward with plans to streamline preliminary hearings and overhaul the charging unit, rejecting prosecution in some cases and kicking others back to detectives for more investigation.

He and top aides - First Assistant District Attorney Joseph McGettigan and Deputy District Attorney Ed McCann - have been giving misdemeanor marijuana cases special attention. The maximum penalty for possession for personal use is only 30 days in jail, and defendants rarely serve time.

Under Williams' predecessor, Lynne M. Abraham, the district attorney for
18 years, the office prosecuted about 3,000 such cases a year.

The prosecutions often tied up judges, assistant district attorneys, police, and defense lawyers - not to mention defendants - in Municipal Court for multiple court listings.

Prosecutors would agree to withdraw the charge if a first-time offender completed community service. Offenders with a criminal history could end up with a formal misdemeanor conviction.

Under the new policy, people charged with possession for personal use will still be arrested, handcuffed, searched, detained, and fingerprinted. Then, regardless of their criminal history, their case will be heard by a special late-afternoon summary court in Courtroom 408 at the Criminal Justice Center. This "quality of life" court handles offenses such as public drinking and disorderly conduct.

Defendants determined to fight the charges could still demand a full trial, but few are expected to do so.

Arrests for small amounts of marijuana aside, police still make thousands of drug arrests yearly in Philadelphia - 18,000 last year for drug-related crimes of all sorts, including charges involving possession and dealing.

Of these, they arrested about 2,000 suspects as alleged marijuana dealers and about 2,500 people for possession for larger amounts of marijuana, over 30 grams.

The handling of those more serious cases will not change, prosecutors say.

Police and prosecutors in other cities and states have taken similar steps toward decriminalization or something approaching it. Several dozen cities have enacted "lowest law enforcement priority" ordinances, stipulating that police pursue such cases as a last resort.

Voters in Seattle approved a ballot question mandating this change in 2003. Since then, arrests for possessing small amounts of marijuana have fallen by three-quarters. In 2005, Denver voters approved an ordinance legalizing possession of less than an ounce, or 28 grams. San Francisco passed a similar law in 2006.

Several states, too, have taken a softer stance on marijuana possession.
For example, Massachusetts decriminalized marijuana in 2008, making it a civil offense and imposing a $100 fine for possession of less than an ounce.

According to the Department of Justice's latest report on drug crime, 28 percent of adults ages 18 to 25 who were surveyed admitted using marijuana at least once within the previous year. For the rest of the adult population, 7 percent admitted using the drug during the same period.

McCaffery has considerable experience with the use of special courts operating under the umbrella of Municipal Court. When he was the court's administrative judge, he pioneered "Eagles Court" for unruly football fans and spurred the collection of fines for "quality of life" summary offenses.

During McCaffery's final 16 months on the Philadelphia bench, the courts levied $2.3 million in fines. Since he left, the imposition of those fines has diminished, costing the city millions, he said.

Under the new initiative, McCaffery said, the court will resume imposing those charges even when defendants fail to show up for summary court.

According to McCaffery, the court will be able to go after as much as
$5.5 million in fees from 2008 and 2009 in this fashion. Any new marijuana-related charges will be on top of that.

Goldstein, of NORML, said his group had been lobbying for relaxed treatment of marijuana cases for more than a year, meeting with members of the District Attorney's Office, Mayor Nutter's staff, and police brass.

"This is a very progressive thing to do on the part of the city,"
Goldstein said of the new policy. "I couldn't be happier about this."

He said the change also would redress a racial pattern apparent in Philadelphia drug-possession arrests. More than 80 percent typically have been of African Americans, Philadelphia police data show.

"All the data from the federal government indicates that blacks and whites consume marijuana at near-equal rates," Goldstein said, yet "the pattern of arrests is that over 75 percent are black men."

According to him, the situation is the same in New York City, where research indicated it was due to more intensive police patrol activity in African American neighborhoods.

Goldstein said he was troubled that Philadelphia police would be permitted to keep arresting people for marijuana possession.

"It is completely absurd," he said. "It's harsh. For minor marijuana possession, it's very harsh treatment."

Police elsewhere merely issue people a ticket and send them on their way, he said.

Leading members of the defense bar also endorsed the new marijuana-prosecution policy.

Joseph C. Santaguida said that "it's a good idea" to steer these minor drug cases to a diversionary program.

Brian Zeiger, another criminal-defense lawyer, said he saw the move as positive both for taxpayers and defendants.

"The city gets money, and the city doesn't have to pay [court] overtime to the cops. It's a guaranteed win for clients. It takes all the risk out of it."

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Contact staff writer Craig R. McCoy at 215-854-4821 or cmccoy@phillynews.com.

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