In Pennsylvania, the act of buying any controlled substance underground is a stand-alone criminal offense. That charge is rarely filed, let alone prosecuted, but Philadelphia police say it's why they are still making arrests for small amounts of cannabis, even after decriminalization.
"Buying, purchasing marijuana does not fall under the scope of the [decriminalization ordinance]," said Deputy Police Commissioner Dennis Wilson.
Wilson is correct. Section 13 (a)19 of the Pa. Controlled Substances Drugs, Device and Cosmetics Act of 1972 makes purchasing weed from any unlicensed, unlawful source a separate crime. It's not commonly charged and several defense attorneys contacted had never seen such a case.
In 2014, Philadelphia became America's largest city to remove criminal penalties for possession of less than 30 grams of the plant and up to 8 grams of hash. Arrests dropped by an estimated 10,000, saving the city millions. A key factor cited in support of the shift was reducing the racial disparity in marijuana arrests.
Still, police officers are given the discretion to issue a civil citation or take someone downtown. Data from the Pennsylvania Uniform Crime Reporting System (PAUCRS) reveal that during 2016, PPD arrested 526 adults and 109 juveniles for possession of less than 30 grams of cannabis.
And an overwhelming majority of those still being arrested for marijuana in Philadelphia are young black men. This persists despite decades of data from the Substance Abuse and Mental Health Administration showing that black and white residents consume cannabis at nearly equal rates.
Of the adults arrested last year, 81 percent were black, 88 percent were men, and 62 percent were 18 to 29 years old.
The overall volume of arrests has dropped by almost 90 percent between 2011 and 2016, but the race ratios have remained constant.
The $25 and $100 tickets issued under the decriminalization ordinance are called Code Violation Notices (CVN). The city's Office of Administrative Review tracks these civil fines, which carry no possibility for jail, probation, or any record even if the violation is left unpaid.
2016 saw a massive increase in decriminalization tickets handed out. OAR data shows 1,388 marijuana CVNs issued by Philly police in 2015, then almost doubling to 2,406 last year.
Philadelphia police and the Office of Administrative Review said they don't collect data on the race, age or gender of people issued CVNs.
Black cannabis consumers are viewed as bycatch in the large nets that police cast over certain neighborhoods. And in Philly, the use of stop-and-frisk has been prevalent.
A lawsuit filed by the ACLU-PA found that most PPD stops targeted black residents – and, and although the department promised to stop the practice, it hasn't. Further analysis showed that police in these sudden encounters frequently found a joint or a few grams of weed on the person being frisked.
Targeting people in the act of a cannabis transaction is seemingly a new angle. These arrests are now being tracked separately by the department. PPA data shows that 85 percent of the marijuana possession arrests in 2016 were people nabbed in the middle of a small-time score.
"Sometimes they are part of a conspiracy case where we lock up the seller and the buyer," said Wilson, the deputy commissioner.
Meanwhile, if cops were camped out in the hallways of Philly's luxury apartments, they would observe plenty of similar "conspiracies" by fair-skinned residents meeting their weed-delivery guy/gal.
So is the District Attorney's Office bringing these dime-bag purchasing cases to trial?
Philadelphia still operates a diversion court for possession arrests called the Small Amount of Marijuana Program (SAM). It started in 2010 when annual cannabis possession arrests exceeded 5,000 per year, and it continues to ease the burden on criminal courts.
"Our policy is that we are reactive to the police and if they send it through, and it's [a buying charge], we send it to SAM," said Mike Barry, deputy district attorney for the pretrial division.
SAM court participants take a drug education class, plead to a disorderly conduct offense (a summary violation), pay a $200 fine and avoid having a marijuana mark on their records.
Not everyone is eligible for SAM. Offenders with a first-degree felony on their record, those on probation or parole, and those who have a firearm (even legally licensed) in their possession when they are arrested can't attend. And not everyone who gets into SAM actually completes the program.
Still, according to the D.A.'s office, only a handful of cases over small amounts of cannabis ever land in front of a judge.
"If a person doesn't complete [SAM] or is not eligible, typically we will make an offer to resolve the case," said Derek Riker, chief of the Diversion Court.
It helps if offenders don't have any prior convictions on their record in the last 8 to 10 years.
"They plead no contest and resolve without being found guilty," said Riker. "It's 30 days non-reporting probation and court costs."
Riker says that three-quarters of those who are given the offer take it.
Andy Hoover, communications director at ACLU-PA, said three years of decriminalization has altered enforcement for the better.
"Reducing the numbers of people who are charged with cannabis possession: That's a good thing," said Hoover.
"But maintaining racial disparities in arrests is fundamentally unfair and illustrates that systemic bias in drug enforcement is still a problem."
Cannabis consumers, including medical patients, waiting for Pennsylvania to inevitably move to full legalization are still living with the stress and fear of getting arrested.
Philadelphia City Council and Mayor Jim Kenney fought hard to pass the decriminalization ordinance in 2014 with a clear goal to reduce racial disparities. That mission has not been accomplished. They should revisit how their policy has been implemented and do something about it.
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