Cincinnati’s Marijuana Law Fiasco

Whites use pot, blacks get arrested

By Eli Braun

REUTERS/Alexandria Sage.

In most of Hamilton County and Ohio, possessing a small amount of marijuana is a “minor misdemeanor,” the lowest level offense. If you are caught with a joint, the police simply give you a ticket and you pay a fine. In the city of Cincinnati, however, you take a ride to the Justice Center.

On March 29, 2006, Cincinnati City Council voted 6 to 2 to increase the penalty for possessing small amounts of marijuana. Ordinance 910-23 elevated marijuana possession from a minor misdemeanor, a pay-out ticket that carries no more than a $100 fine, to a fourth-degree misdemeanor, or M4, which entails an arrest.

With the M4, pot smokers now face up to a $250 fine and 30 days in jail. Those arrested a second time are charged with a first-degree misdemeanor, which carries up to a $1,000 fine and six months in jail.

More than 13,000 arrests have been made under the M4 marijuana ordinance as of May 5 – a total of 13,263, according to the Cincinnati Police Department.

Thus Cincinnati distinguishes itself from other municipalities in Hamilton County.

“Literally you could be standing on one side of the street,” says Hamilton County Municipal Judge Fanon Rucker, “then walk across the street and be subjected to a different penalty.”

Cincinnati differs from other cities as well. Philadelphia has taken steps to decriminalize possession in an effort to relieve its crowded court system. In November, California voters will take the initiative one step further: deciding whether to legalize marijuana, allowing it to be sold and taxed like any other commodity.

While some cities have moved toward easing the penalties, Cincinnati has moved in the opposite direction. The result has been disastrous for police effectiveness, court and jail crowdedness and community welfare. As we approach the law’s fifth anniversary next year, the national trend toward decriminalization presents an opportunity to evaluate its impact.

‘Who they’ll be going after’

City Councilman Cecil Thomas, a retired 27-year veteran of the police department, led the 2006 effort to stiffen the penalty. He was and remains the chair of city council’s Public Safety Committee. Earlier this month, he narrowly lost the Democratic primary to Jim Tarbell in the race for Hamilton County Commissioner.

Tarbell was Thomas’s fellow councilmember in 2006 and condemned the “regressive” ordinance.

“This is a class issue,” Tarbell said (prophetically, as it turns out). “The people caught and prosecuted will be low-income African Americans.”

But the new law would aid police, according to Thomas.

“The most important aspect of this (ordinance) is it gives officers an additional tool for search and seizure,” he said.

Police cannot search people cited for minor misdemeanors. Petty marijuana possession is a minor misdemeanor according to Ohio state law.

“Bumping it up to an M4 might seem like a small change, but in fact, all these procedures kick in,” says Rob Wall, an attorney at the Ohio Justice & Policy Center. “Officers can arrest you, search you and bring you downtown. The law wasn’t about marijuana; it was about initiating a police search.”

David Crowley joined Tarbell in voting “no.” The “yes” votes were Thomas, Chris Bortz, Laketa Cole, John Cranley, Leslie Ghiz and Chris Monzel. Jeff Berding was absent on the day of the vote, but he voted for the measure two weeks earlier as a member of the Public Safety Committee. The bill passed with a veto-proof majority. Mayor Mark Mallory, who opposed the measure, withheld his signature as the bill became law.

Some backers of the law argued that heightened penalties could point offenders toward drug treatment. In fact, both then and now, drug court only accepts felony drug offenders, not those arrested for small amounts of marijuana, who likely do not need drug treatment anyway.

According to newspaper reports at the time, Thomas said the police would not spend their time targeting medical users and college students.

“That’s not who they’ll be going after,” he said. “I’m not concerned about that because crime is occurring in our troubled neighborhoods.”

It seemed that council specifically intended to subvert “equal justice under law.” While people in “troubled” neighborhoods would endure more serious criminal charges and greater penalties for marijuana possession, marijuana users in more affluent areas – even in areas of the city where the same ordinance ostensibly applied – could get high without police meddling.

Four years later, that’s precisely what’s happened.

Streetvibes identified three key findings in police data:

  • Few of those arrested under the ordinance were convicted of anything other than marijuana, meaning that police searches have not, by and large, turned up guns or additional drugs.
  • African Americans bear the brunt of the law. Almost 9 out of 10 people arrested between March 29, 2006, and May 5, 2010, were black (85 percent) and male (89 percent). Cincinnati is 46.5 percent black and 52 percent white, and whites actually use marijuana at a higher rate. Some 44 percent of whites, compared to 39 percent of blacks, have used marijuana, according to the 2005 National Survey on Drug Use & Health. Eleven to 12 percent of both whites and blacks used marijuana in the previous year.

Simply put, despite the same usage rate, blacks are six times more likely than whites to be arrested for using marijuana in Cincinnati.

  • Certain neighborhoods are over-represented. Most of the arrests occurred in Police District 1 (Downtown, Over-the-Rhine) and District 4 (Walnut Hills to Hartwell, including Avondale). For example, in 2009, District 1 posted 29 percent of the marijuana arrests with just 6 percent of the city’s population while District 2 (centered around Hyde Park) posted near-opposite numbers: 8 percent of the arrests, 26 percent of the population.

Streetvibes reached out to Councilman Thomas repeatedly over a three-week period to comment for this article. Phone and e-mail messages, left with both his city council office and his political campaign, were not returned.

The Cincinnati Police Department provided recent statistics but declined to comment on the law.

The evidence

The anti-marijuana ordinance included a “sunset” clause, meaning council had to renew it the next year or it would expire. Council again took up the debate in March 2007.

Council began by reviewing the impact. In the first 11 months of the law, according to the city manager’s report, 3,285 individuals were arrested under the ordinance. Cincinnati Police confiscated 62 guns, 2.81 kg of crack cocaine, 0.24 kg of cocaine and 0.10 kg of heroin – altogether, about two percent of the 141 kg drug haul in 2006. Unsurprisingly, a law targeting petty users turned up a relatively small amount of drugs.

Of the first 3,285 arrests, 61 percent (2,010) resulted in the M4 marijuana conviction, while 14 percent (469) were convicted of different offenses or did not result in a conviction, indicating that the law generally did not turn up guns or heavier drugs.

Another 14 percent (452) resulted in open warrants and 11 percent (347) had not settled by the time of the report. Seven arrests were unaccounted for.

The city spent an additional $41,200 in the first 11 months, primarily to pay for defense attorneys to represent the new defendants. By law, anyone facing the possibility of jail time has the right to an attorney. That cost did not include police officers’ expenses, the expense of the additional court time required to try those cases or the cost of bringing officers to testify at trial.

Advocates for repeal argued that an individual with a dime bag (worth $10) should not face the same penalty as someone carrying 200 grams (worth about $2,500). Both are fourth-degree misdemeanors under the ordinance. The Cincinnati Police told Streetvibes that arrest data do not include information on drug weight.

During the 2007 debate over whether to renew the law, council members seized upon the 62 confiscated guns and additional grams of drugs as evidence that the law was working.

Jim Tarbell contested that view and appealed to the larger picture. He argued that the law and its repercussions had “the potential to cause great harm to this community.”

“We now have 2,000 people who were not in the system before,” Tarbell said in remarks to the full council regarding those now marked by a criminal record.

“I am compelled by the confiscation of 62 guns,” he continued, “but in the context of what else is going on here, I’m not (compelled). I think that our attention to other enforcement issues would probably result in the same kind of success without the prospective downside.”

If the goal is to get guns off the street, it would be more effective to target criminal activity other than marijuana, according to Jason Haap and Michael Earl Patton of the Cincinnati Beacon, who have lobbied against the ordinance since it was first proposed. In the first 11 months, the ratio of guns per arrest broke down to one gun per 53 marijuana arrests. But for all arrests in 2006, the guns per arrest ratio was 1 in 33 (1,442 guns confiscated during 41,525 arrests). Marijuana users simply harbored guns at a much lower rate than other people arrested.

Meanwhile, in the year after the ordinance became law, violent crime in Cincinnati actually increased – murders by 16 percent, burglaries by 7 percent and robberies by 44 percent.

A review of anti-marijuana laws in the Journal of Drug Issues (April 2007) found that get-tough policies often increase violent crime. The economist-researchers hypothesized that police crackdowns on marijuana disrupted flow, which increased demand for the limited supply, which in turn raised prices and led users to commit more burglaries and robberies in search of cash.

Since writing a ticket for a minor misdemeanor takes 15 minutes, while completing an arrest for an M4 takes much longer, Cincinnati Police officers have devoted more time to policing marijuana possession. According to the online watchdog Prioritize Cincinnati, Cincinnati police dedicated 2,261 hours in 2006 to enforcing marijuana possession, compared to 1,464 in 2005, an increase of 54 percent.

“The police were so busy taking people to jail for smoking pot – I had several officers admit this to me – that they could not respond,” testified Price Hill resident Scott Jetter in front of city council in 2007 about a burglary on his home. “Three and a half hours response time, minimum. The same officers did admit that if I walked out to the street and lit up a joint, they’d be there in less than five minutes to arrest me.”

The additional hours spent tracking down potheads did not reduce other crime, according to the studies and statistics above, and may have actually contributed to it by distracting law enforcement from surer methods.

Nevertheless, city council renewed the ordinance by a 7-2 vote. No one changed his or her vote.

Council tweaked the language in the 2007 renewal. The original ordinance criminalized 100 grams of marijuana or less as an M4. The new version criminalized 200 grams or less. The change had no impact, however, because possessing 100 to 200 grams was already an M4 under Ohio law.

Beyond crime, the ordinance sets up repercussions that are less quantifiable but no less injurious to the community. The ordinance exacerbates court expenses and jail overcrowding, while undermining community morale and an offender’s opportunity for a second chance.

Minor crimes, massive waste

An entire cast of characters must assemble every time the court comes to order: prosecutors, defenders, defendants (sometimes taking days off work), the judge, the judge’s clerk, witnesses, court stenographers and bailiffs, not to mention regular courthouse security and administration.

As a result, prosecuting misdemeanors is not cheap, according to the National Association of Criminal Defense Lawyers in its 2009 report, aptly titled, “Minor Crimes, Massive Waste.”

A recent report of the Ohio Justice & Policy Center raised another concern: “Flooding the system with these misdemeanor cases is equivalent to swamping an emergency room with head colds and nosebleeds.” The flood prevents police and court personnel from identifying truly important cases.

The ordinance’s impact on jail overcrowding – a perennial topic in Hamilton County politics – is less pronounced but still noticeable. After being arrested, an individual is processed through the Justice Center, which takes several hours. Some may stay overnight. Since 2006, police have chosen to take three out of four people arrested under ordinance 910-23 to the Justice Center.

Despite the possibility of jail time, offenders typically pay fines instead.

“While every case is judged on its own facts, the typical penalty might be a $100 fine, plus court costs,” Municipal Judge Fanon Rucker says.

A sampling of cases from the Hamilton County Clerk of Courts found that fines varied from $20-$200 but hovered around $100, with defendants responsible for paying an additional $104 in “court costs.”

No one gets sent to jail simply for marijuana possession, Rucker says.

“For marijuana, I do not treat defendants differently based on whether their offense occurred in Cincinnati or outside city limits,” he says.

He acknowledges that the legal consequences differ. Some defendants walk away with minor misdemeanors while others leave with fourth-degree misdemeanors.

He also notes that many defendants charged under the city ordinance “tend to be of more modest means financially, so even a $100 fine can cause great disruption in their lives.” Their employers also might be less forgiving when defendants must leave work to attend court.

Those who do not pay the fine may be held in contempt of court. Jail time is a possible penalty.

“You may get a ‘stay to pay’ if you can’t pay the fine,” says Danielle Anderson, an attorney with the Ohio Justice & Policy Center who has defended marijuana cases. “The judge will say, ‘Come back on this date,’ and the defendant will come back, still unable to pay, and the judge will set another court date. It just goes on and on and on.”

It is not unusual to see cases stretching six months or even a year until finally resolved.

The city can still reverse these burdens by reclassifying marijuana possession as a minor misdemeanor, which would bring Cincinnati into accord with Ohio law and most Ohio cities.

‘Disastrous’ impact

For many people, however, the damage is done. There is no reversal.

“Say a person made a mistake at age 18 and committed theft,” says Rob Wall, the Ohio Justice & Policy Center attorney. “Then at age 19, they get caught with a joint. That’s not uncommon; it happens all the time. With two convictions, they’ll never get that record sealed. Those convictions will be with them 20, 30 years later and for the rest of their lives.

“In Ohio, you cannot get a misdemeanor or felony expunged if you have more than one. If that person had been caught with marijuana outside of Cincinnati, say in Norwood, the charge would have been a minor misdemeanor. Half a mile can make a big difference in a person’s life.”

It would have allowed that individual to qualify for an expungement.

“Your opportunity to get a second chance in Cincinnati is lower than elsewhere in the state,” Wall says.

It’s a question of fairness, he says. Why should members of poor or marginalized communities, who tend to live within city limits, face greater obstacles?

“Making it harder for people with records to work or get a second chance probably wasn’t the city’s intention,” Wall says, “but that is exactly what it does. The impact has been disastrous.”

Also important is the impact on housing. Individuals and their families lose housing vouchers on the basis of M4 marijuana convictions, disadvantaging Cincinnati residents over others in Hamilton County.

Some 97 million Americans, 4 in 10 people over age 12, have tried marijuana at least once. That doesn’t indicate great respect for legal authority. That lack of respect, some advocates have argued, has a multiplier effect. When lawmakers criminalize an activity that you do not find improper, you lose respect for the law.

Many support legalizing marijuana, including 37 percent of Ohioans and 59 percent of those aged 18 to 29, according to a 2009 University of Cincinnati poll. Presumably, even more Ohioans support decriminalizing marijuana – that is, not making it explicitly legal, as the poll queried, but treating it as a payout offense, on par with a speeding or parking ticket.

These findings, the national trend toward decriminalization and new faces on city council raise hopes of a repeal. In a Cincinnati Beacon interview, newly elected Councilman Charlie Winburn said, “It should be repealed because it is taking up police time and bogging down our court system and jail space.” In another Beacon interview, newly elected Councilwoman Laure Quinlivan said, “If the ordinance has not produced good results for citizens and in fact is a drain on resources, I’ll be in favor of repealing it.” With those criteria, it is hard to see how she could vote any other way.

Councilman Thomas, in arguing for expanding police searches, suggested that the new ordinance would reduce violent crime. The opposite might have happened. Ordinance 910-23 has not fetched more guns than the average arrest. It has exacerbated racial disparities as police rack up easy arrests in targeted neighborhoods. It has flooded our courthouse and crowded our jail. It has needlessly criminalized thousands of Cincinnatians over the past four years. On 13,263 occasions, Cincinnatians have passed through our courthouse to plead before judges who then sentenced them as if they had been convicted of a minor misdemeanor anyway. That’s thousands of people who returned to the courthouse time and again to pay, ironically enough, their court costs.

Ordinance 910-23 was based on wishful thinking. With mounting evidence of its harm, members of city council would be wise to focus on misdemeanors that are actually worthy of that name, instead of offering up their constituents as casualties of the war on drugs.