Expungement Cures The Symptom, Not The Disease

There’s a flip side to the consideration of legalization of marihuana (the official New York spelling for pot). What about the hundreds of thousands, perhaps even millions, of people saddled with weed convictions? What about the ones with pending cases? Open warrants? What about the guys with enhanced federal sentences because of a criminal history level 2 or lower based upon pot convictions? What about the people deported for the “aggravated felony” of a marijuana conviction?

And then, what about the people who are dead, because sometimes a gun goes off and a projectile is expelled from its barrel into someone’s head during an arrest for weed?

Mayor Bill de Blasio has called for expungement of marijuana convictions as part of his concept of “righting historic wrongs.” Unsurprisingly, the historic wrongs aren’t marijuana convictions, per se, but the disparate arrest, prosecution and conviction of minorities.

It’s not that they were convicted, but that they were convicted while black. Does that mean it’s not really about weed at all? Does that mean that convictions of white people for marijuana aren’t “wrongs,” or do they get another bit of privilege by being swept into his “historic wrongs” for black defendants?

In Brooklyn, District Attorney Eric Gonzalez has moved to dismiss cases, vacate warrants, for low-level marijuana cases.

“The majority of these cases come from a period in time when we were targeting black and Latino communities,” Gonzalez said.

Gonzalez believes that clearing these warrants will “promote public safety.”

“It will restore trust in the justice system and aid individuals looking for jobs and careers who have been hindered by these outstanding warrants,” he said.

The Brooklyn DA’s office plans to go further and look at another 20,000 convictions in the borough.

That the NYPD was “targeting” blacks and Hispanics is undeniable. That was essentially the point of the “stop and frisk” tactic, to have cops toss people in minority communities that wouldn’t, and didn’t, happen anywhere else in the city. It wasn’t just that they were caught because of police targeting, but when the cops had to make their numbers, they also made cases that never happened.

This created generations of people with what might be called “lifestyle” criminal histories, a handful of low-level infraction and misdemeanor convictions that wasn’t enough to put them in prison, but was more than sufficient to prevent them from getting decent jobs, education, often housing, licensing and citizenship.

“The facts are simple: People smoke marijuana no matter what race or economic class you’re in, but the enforcement has been done in a very targeting, racial way,” Gonzalez said. “Brooklyn is moving in the right direction in public safety … and this goes a long way in restoring trust in our justice system.”

These simple facts, however, don’t logically lead to the conclusion reached. The statement conflates two problems, one legal, one discriminatory. As much as this has become a widely accepted position with reformers, particularly of the identity politics ilk, it fails to distinguish whether the conduct under consideration should be criminal and whether the execution of law enforcement is unconstitutional in that it targets people based on race and national origin in violation of the Equal Protection Clause.

Should marijuana be legalized is a question dependent on marijuana. Should minorities be targeted by law enforcement has nothing to do with marijuana. If we legalize weed, does that mean police will stop targeting minority communities otherwise? Is the justification for legalizing weed that it’s not a harmful substance, or that the police are engaged in discriminatory conduct?

The snarky response would be “both,” that pot should be legalized and that police should no longer target black and Hispanic communities. And that would be a fine response, but will legalizing pot change the fact that police target minority communities, treat black and brown people very differently than they treat (most*) white people? Will that end low-level arrests for disorderly conduct and obstruction of governmental administration, those favored catch-all crimes that fill in the gaps when there’s no actual crime to be charged?

The focus, for the moment, is on marijuana, and the push to legalize it enjoys broad support, perhaps reflecting some less fear of drugs, or perhaps because far more people are smoking it already anyway. Whether you support this or not, the trend is clear. And it will have a palliative impact on many in targeted communities, who will no longer be saddled with petty, often false, weed convictions.

Whether it will solve the other problem, that cops target minority communities, treat people poorly and with contempt, is another question. Gonzalez says “this goes a long way in restoring trust in our justice system.” Will it? Will legalizing pot make cops treat minorities more respectfully? Will they stop throwing black teen-aged boys against walls? Or will the arrests for pot morph into arrests for loitering, public drinking, public urination and the ubiquitous dis con?

Gonzalez’s rap has become the mantra of many reformers, who similarly conflate the problems and, naturally, provide Menckian solutions to complex problems. It’s easy to absorb for those who want desperately to believe that there are easy answers. Maybe it will work, if cops aren’t pressured to make busts and, miraculously, stop believing that black and Hispanic guys are less criminalish, less worthy of being treated like human beings, less despised.

But that’s a long reach for legalizing weed. And if it doesn’t work, and cops continue to treat minorities as poorly as before, what do they plan to legalize next rather than face up to the real problem, that cops discriminate against minorities?

*Poor white neighborhoods are treated better than black and Hispanic neighborhoods, but hardly as well as Park Avenue and Sutton Place. There is certainly an additional overlay of poverty and wealth atop racism in the assumptions about who commits crimes and who a cop can toss against a wall with impunity.


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5 thoughts on “Expungement Cures The Symptom, Not The Disease

  1. Keith

    Ideally, they are certainly two separate issues that deserve to be dealt with separately.

    The notion of holding up legalization while the details of expungements are sorted out seems counterproductive (how many get arrested and caged as we decide how to let the caged ones out*?).

    But, on the other hand – I’ve seen the legislative meat grinder in action. It’s not out of the realm of possibility that without tying the two together, expungements would never happen.

    That the pols, so greedy to make tax on the weed, would pass the first part and move on, is business as usual. Without holding up the policy to get the expungements across the finish line (even without dealing with the underlying issues of disparity in treatment), even expungements would never happen.

    So yea, you’re right in the principle. But these are unprincipled players. How much should that matter?

    * As for the Brooklyn DA’s plan — some NJ towns tried this bit and the State AG snapped them in line. Turns out they don’t like it one bit when underlings start deciding policy.

    1. SHG Post author

      Ironically, there was a huge push for an expungement law a decade ago, based upon having not committed a crime for more than ten years after completion of sentence. It failed miserably.

  2. Fubar

    There is certainly an additional overlay of poverty and wealth atop racism in the assumptions about who commits crimes and who a cop can toss against a wall with impunity.

    M is fer the mudflaps ya gimme fer mah pickup truck.
    O is fer the oil I put on mah hair.
    T is fer T-bird.
    H is fer Haggard.
    E is fer eggs, an’
    R is fer Redneck!

      1. Fubar

        Legal reefer, because of, despite,
        Walls for all will be some cops’ delight.
        Rich, poor, black, white or brown,
        Spread ’em out, pat ’em down.
        Merry Christmas to all, and g’night!

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