Most of Pennsylvania’s largest cities have passed ordinances decriminalizing marijuana. And officially, penalties for possessing small amounts are like traffic tickets, with typical fines running from $25 to $500.
In 2019, marijuana arrests — which often result in an onerous criminal record — declined in the Keystone State. But they remain greater than they were in 2009, before any city in Pennsylvania decriminalized possession of marijuana.
About 21,789 people were arrested in 2019 and charged for possessing less than 30 grams (just over an ounce) of cannabis, according to preliminary data released by the Pennsylvania State Police. Last year’s total marks a nearly 11% decline from the record 24,305 set in 2018.
City councils in Philadelphia, Pittsburgh, Erie, Allentown, Harrisburg, York, Lancaster, and most recently Norristown have all officially decriminalized possession of a small amounts of marijuana.
“But we’re still arresting more people than we did 10 years ago,” said Lt. Gov. John Fetterman. “It’s lunacy.”
So why are there so many arrests?
“It’s because police in many of those cities don’t follow the decriminalization statutes,” said Patrick Nightingale, a cannabis law attorney and advocate in Pittsburgh. “The statutes are not binding on police or the District Attorney’s Offices. They’re voluntary. Police can still make arrests at their discretion.”
City ordinances can’t repeal state or federal law. So even if a municipality passes a decriminalization ordinance, state law still says possession is illegal and a person can be arrested. But “the Office of Attorney General does not arrest for a small amount of marijuana,” said a department spokesperson.
Marijuana remains illegal under federal law, too. But the feds rarely, if ever, prosecute for possession of small amounts.
Another reason numbers remain high: Police may be muddying the data.
As The Inquirer previously reported, suburban law enforcement agencies routinely report more arrests to the FBI than actual court cases. In participating in the FBI’s Uniform Crime Reporting program, the four counties in the Philadelphia suburbs reported that they arrested 5,400 people in 2017 for having pot. Yet the court records showed only 3,200 defendants faced criminal cases.
Many police departments report an “arrest” any time officers stop someone and seize marijuana, even if no charges are filed or the person is not taken into custody. Contacted for a comment, the Pennsylvania District Attorneys Association referred the question to the Pennsylvania Chiefs of Police Association, which did not reply to multiple requests for comment.
“We did an in-depth study,” said Chief Pat Malloy of the Abington Police Department, where the number of reported arrests fell in 2018. “We found we were recording citations as arrests. That, for the most part, explains why our numbers looked so high.”
Nevertheless, a regional organizer for NORML, the National Organization for the Reform of Marijuana Laws, called the decline in 2019′s total arrests “a profound shift.”
“Previously, there were steady annual increases in arrests for cannabis possession, while other drug arrests had plateaued,” said Chris Goldstein of NORML. “Now, for the first time in a decade, there is a clear downward trend in arresting marijuana consumers."
In Pennsylvania, more than 253,000 patients have registered for the medical marijuana program, although only 163,000 actually hold state-issued cards and are actively participating, according to the state Department of Health. There are currently 76 dispensaries — state-permitted marijuana retailers — open for business.
According to state activists, arrests are up in rural parts of the state and police are charging card-holding patients with possession.
“The odor of cannabis remains a probable cause for a search,” said Jeff Riedy, of the Lehigh Valley chapter of NORML. “So medical marijuana is not an excuse to be let off. If police smell pot in a car, they can arrest and charge for DUI.”
Pittsburgh passed its decriminalization ordinance in 2015. But the ordinance hasn’t had much of an impact. Because the decision to arrest is left up to each police officer, Riedy said, arrests rebounded two years later.
“Philadelphia, on the other hand, is the shining star of what passage of decriminalization should be," Riedy said. “Unfortunately, most cities have not followed suit.”
Philadelphia was a leader among big cities in taking a more tolerant approach to possession of small amounts of marijuana. The city passed a 2014 decriminalization ordinance championed by then-Councilman Jim Kenney. That cleared the way for police to issue noncriminal citations.
City police dramatically reduced marijuana arrests, cutting cases in which possession is the most serious offense from about 5,600 in 2010 to just 621 last year, a drop of nearly 90%. At the same time, city police have grown far more active in issuing citations for pot. Officers handed out just 184 in 2014 — and about 2,850 for possession in 2018.
The Pew Research Center this month reported that in 2018, 4 in 10 drug arrests across the United States were for marijuana offenses, mostly for possession.
Andy Hoover, spokesperson for the ACLU of Pennsylvania, applauded the decline in arrests because it meant fewer cannabis consumers were tied up in the criminal system.
“That’s a positive,” Hoover said. “The damage that is done when a person is arrested is significant, and it’s people of color who are disproportionately impacted, despite the fact that cannabis consumption is the same across races."
African Americans represent an estimated 40% of those arrested for marijuana in the region.
“I apologize if this sounds simplistic, but one arrest is one too many for marijuana,” said Lt. Gov. Fetterman. “This idea that we would arrest, charge, prosecute, and create a criminal record for anyone consuming a plant that is legal in a dozen states now is a waste of resources.”
Fetterman said arguments about whether police were overcounting arrests or not following city ordinances were missing the point.
“All this head-scratching and contemplation goes away if you make it legal,” he said.
Marijuana is legal for adult use in 11 states and the District of Columbia. On Jan. 1, Illinois began sales of recreational cannabis and the state’s governor issued more than 11,000 pardons to people previously convicted of low-level marijuana offenses.
Cannabis has been legalized for medical purposes in 33 states.