Will Philly end its war on weed?

Jim Kenney is an at-large City Councilman, lifelong South Philadelphian, Mummer and son of a firefighter. He’s also the city’s highest-ranking advocate for legalizing marijuana. 

Kenney has introduced legislation directing police to stop making arrests for possession of small amounts of marijuana and imagines a future in which pot grown on Pennsylvania farms is sold alongside wine and spirits in state stores. 

“It’s an organic,” says Kenney, widely rumored to be considering a run for mayor. “Right now, what’s on the street, from what I understand, a lot of it’s chemically enhanced — which is bad. If you get a nice, pure, clean crop, and you package it right and sell it right for the right price and tax it ... I mean, Amsterdam survives.”

This is unlikely to happen anytime soon, as the state government is dominated by conservative Republicans. But even in Philadelphia, Kenney’s proposal to stop arresting marijuana possessors instead of arresting them on the spot has opponents in Police Commissioner Charles Ramsey and District Attorney Seth Williams. Both say marijuana-possession arrests can, and must, continue. 

The opposition from law enforcement was a surprise to Kenney: He had told City Paper that he believed the DA was on board, and that Ramsey was open to the idea.

Indeed, Ramsey indicated support in public just three weeks ago, telling WHYY Radio Times host Marty Moss-Coane he was “in favor of being able to write a citation for minor possession as opposed to actually having a physical arrest taking officers off the street.” Ramsey now says that he wants to “make sure that I’m on solid legal ground,” and that he changed his position after conversations with the DA and the First Judicial District, which administers city courts. 

“I don’t think [Kenney] can actually do that at the local level. My understanding is that it has to be changed at the state level,” says Ramsey. “We don’t handle misdemeanors through anything other than physical arrests, at this time.”

Williams has been widely praised for a “smart on crime” program to divert those charged with possession of small amounts of marijuana away from criminal prosecution. But DA spokesperson Tasha Jamerson says that “by law, all misdemeanors in the commonwealth require an arrest by police.” 

Nobody, however,  seems to be able to point out exactly where it says that misdemeanor offenders must be arrested on the spot. Jamerson cited a statute requiring those arrested or summonsed for misdemeanors to be fingerprinted, but it says nothing about arrests. Temple law professor Jim Shellenberger, a former Philadelphia prosecutor and an expert on criminal law and procedure, says that no arrest requirement exists.

“I disagree with the DA and Commissioner [Ramsey],” Shellenberger writes by email. “Under the Pennsylvania Rules of Criminal Procedure, criminal proceedings may be instituted by arrest or by filing a written complaint. … The police could, rather than arresting for minor marijuana possession, seize the drugs, get the offender’s name, address, etc., and then file a written complaint.”

Indeed, Kenney says that police in Montgomery County and Pittsburgh are not required to arrest. And Lower Merion spokesperson Tom Walsh says his township’s police don’t arrest or even issue a summons for a misdemeanor — offenders just get a citation for disorderly conduct.

Why did Ramsey change his mind, and what’s with the newfound rationalization from the DA? Kenney suspects that the office of Mayor Michael Nutter, who declined an interview request, might be involved. Nutter spokesperson Mark McDonald says they're not, but that the city's "Criminal Justice Advisory Board took up the issue and formed a subcommittee to look into it." Kenney intends to find out what happened at City Council hearings on the proposal on March 10.

“The whole thing is ridiculous,” says Kenney. “If you’re not going to prosecute … why arrest?”

That’s what a lot of young men were wondering last month during a busy afternoon on the benches outside marijuana court, held each weekday afternoon at the Criminal Justice Center.

“The guns are still out there, people still getting killed every day,” says a frustrated 28-year-old named Chris, who, like other pot smokers interviewed for this story, declined to give his last name. “Weed is not killing anybody.” 

Chris has a lot in common with others here: He is young, black, male and was arrested for marijuana possession after police stopped and frisked him. In Chris’ case, it was a late afternoon this past August, when he walked into a corner store near his girlfriend’s Frankford house to buy a Twix: “They look for the black guy with the hoodie and boots and jeans, and think he’s up to something.”

He spent two days in jail, during which he’d had a job interview lined up. He wasn’t hired.

Shaq, 19, says he was walking down a “hot block” in North Philly when police “pulled a gun and said ‘Put your hands up.’ They’re probably looking for ratchet [gun] or something. I don’t know.”

These young men (because no women are present) are here for the DA’s Small Amounts of Marijuana (SAM) program, created in June 2010 to keep everyday pot smokers out of big trouble and allow busy prosecutors to focus on more serious crimes. Those found in possession of 30 grams or less can avoid prosecution by paying a $200 fine and taking a class. 

But even with SAM, enforcing marijuana prohibition costs the city, and pot smokers, time and money. 

“It’s a waste of manpower, time and energy,” says Malcolm, 43, entertaining a rapt crowd of men who are mostly half his age. “It’s a joke. It’s a farce.”

Inside the courtroom, a trial commissioner begins proceedings. Fifteen men file in — 12 are black, two appear to be Latino and one is white — and are presented with two options: Fight the charges in court, or enroll in SAM and have their records automatically expunged upon completion. 

The trial commissioner starts calling names. A number are in jail; many others haven’t shown up, and bench warrants are issued for their arrest. Indeed — just 53 percent of enrollees completed the program in 2013, according to Diversion Courts Unit Chief Derek Riker. He says he believes that inability or reluctance to pay the $200 fine is the main reason so many people don’t complete the program.

Deputy District Attorney Laurie Malone says the class requirement and fine are set by the courts, so altering the program isn’t something her office would do. She does concede that the current program isn’t likely to rehabilitate many people. 

“I mean, we’re realistic about that,” she says. “We understand that most of these people are adults, and they probably understand whatever potential harm that marijuana may bring. So to the extent that it impacts maybe one individual, we’re happy.”

At marijuana court, no one appears to be seeking treatment. 

“People who smoke weed are going to smoke weed,” says Malcolm, joking. “This is the most expensive bag of weed I’ve ever paid for in my life.”

The First Judicial District did not respond to CP’s request to view the film shown to SAM participants, but Shaq, who sat through the class, did not give it a positive review.

“They just showed a movie ... about how the murder rate went up. It’s nothing about weed.”

Studies show that white and black people smoke pot at similar rates. But marijuana-possession enforcement in Philadelphia falls hardest on black pot smokers — according to Police Department data, 83 percent of the 4,314 marijuana-possession arrests made in Philly in 2013 were of African-Americans.

This is, in part, because most people affected by police stop-and-frisk policies are black or Latino — a white person walking with a small amount of weed is far less likely to ever get caught with it.

In a report to a federal court, civil-rights lawyers monitoring a 2011 settlement about stop-and-frisk policy in Philadelphia estimated that three out of five arrests made solely for marijuana possession were the result of a pedestrian stop, and that 76 percent of the 215,000 stops in 2012 were of minorities. 

“The data that we’re seeing on marijuana-possession charges reflects one of the basic problems with the stop-and-frisk initiative,” says Paul Messing, one of the lawyers who published the report, which also contends that police failed to articulate a reasonable suspicion for nearly half of all stops. “The City [has] failed,” the report states, to “undertake any steps to remedy the racially disparate practices related to marijuana arrests.”

Ramsey rejects the argument.

“You’re making an assumption that we’re just targeting a particular group of people. You make an arrest when you find people violating the law — period.”

Kenney is pushing ahead, despite what he sees as about-face opposition from law-enforcement officials like Williams and Ramsey. 

“When you’re arrested, it’s a traumatic experience, especially if you’ve never been arrested before,” says Kenney. “White kids are smoking reefer, too, but they’re not getting arrested.”

The online version of this story has been updated to include Mayor Michael Nutter's rejection of Councilman Jim Kenney's suggestion that his office might be behind opposition to the legislation.