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Defense attorney Patrick Nightingale says decriminalization is only a step towards addressing the real problem of disproportionate arrests in African-American and minority communities

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SHARMINI PERIES, EXEC. PRODUCER, TRNN: Welcome to The Real News Network. I’m Sharmini Peries, coming to you from Baltimore.

The mayor of Philadelphia, Michael Nutter, recently announced that the marijuana bill that goes into effect on October 20 will not legalize marijuana, only decriminalize it. While this is a step forward and it might reduce the number of people arrested and stuck with criminal records, it will not eliminate the over-policing of African-Americans and Latin communities under the auspices of the war on drugs, which is a major problem that most major cities in the United States experience.

Now joining us from Philadelphia to discuss all of this is Patrick Nightingale. Patrick is a practicing criminal defense attorney in Pittsburgh, Pennsylvania. Prior to that, Patrick was a prosecutor with the Allegheny County district attorney’s office in Pittsburgh.

Thanks for joining us, Patrick.

PATRICK NIGHTINGALE, FORMER PROSECUTOR, LEAP: Thank you very much. And on behalf of Law Enforcement Against Prohibition, I would like to thank you for welcoming us onto your show.

PERIES: You’re most welcome.

Patrick, let’s outline the problem and the solution that the legislation is trying to get at.

NIGHTINGALE: The problem that activists in Philadelphia, Philadelphia NORML, their chapter of the National Organization for the Reform of Marijuana Laws, had been tracking arrest data in Philadelphia for small amounts of marijuana and for marijuana paraphernalia since 2008. And what they found was a striking, a shocking disparity in rates of arrest amongst defendants of color, primarily in the African-American community. What they found were arrest rates as high as 85 percent of all arrests during that five-year period of time were people of color despite evidence and anecdotal evidence and surveys that suggest that rates of marijuana consumption between whites and blacks are fairly even. So what they recognized was a grossly disproportionate system of arrests. And they sought about trying to find a way to address that.

And what they did was they approached Philadelphia’s city council and a sympathetic councilmen, Councilman Jim Kenney, who was willing to author an ordinance that would change the way City of Philadelphia police interact with and handle small amounts of marijuana cases. And that ultimately led to the ordinance that the mayor is going to sign.

PERIES: And what is the history here? What is the particularity of the relationship between the Philadelphia police and the low-income communities or minority communities, as you have put it?

NIGHTINGALE: It’s similar to the problems facing any urban environment. Unfortunately, urban environments have a certain concentration of people who are considered to be low-income. There are a number of, disproportionate amount of, say, 911 calls in lower-income communities. And police resources are deployed according to those types of demographics.

So, unfortunately, what we have is because of a dense population in an urban environment, low-income situation in an urban environment, you’re going to have pretty significant police presence in these types of neighborhoods, as opposed to neighborhoods that aren’t generating as many 911 calls. In Philadelphia, that means that there is an increased police presence in neighborhoods primarily of color.

And as a result of that increased police presence, you have quite literally–I don’t want call it a war on Philadelphians, ’cause I don’t think that’s how the Philadelphia police see their role. However the net effect of that has been a very strained relationship with the police and with Philadelphians over something as simple as small amounts of marijuana, where in other parts of the Commonwealth of Pennsylvania and other parts of southeastern Pennsylvania, certainly here in Pittsburgh, Pennsylvania, we don’t arrest people; we give them a summons to appear for court.

PERIES: And from what I understand from this piece of legislation or bill, the courts will still be handling a majority of the citations given, yes?

NIGHTINGALE: Well, any citation that is issued, a person still has the right to contest it before a magistrate. Now, if someone is cited in Philadelphia under their new ordinance and they are facing a $150 fine, they’re free to contest that. But then the remedy is for them to be charged with a misdemeanor, small amount of marijuana charge, and face a criminal conviction. So, yes, as with any fine, crime, whether it’s civil or criminal, there is redress within the courts. However, it would be ill-advised to turn down the opportunity for a noncriminal civil citation and opt to be charged criminally. That really wouldn’t make much sense.

PERIES: And from what you see, will this piece of legislation really get at the problem?

NIGHTINGALE: I think that it is an effective first step. Ultimately, when, as you said when we were beginning the program, the war on drugs has had a disproportionate impact on low-income communities, and especially communities of color. Since the war on drugs has started, we have seen a spike in our federal prison population, primarily people of color, in this country, and it is pegged right to the war on drugs. I don’t want to say the war on drugs was racist ab initio, but certainly it has had that type of effect.

For example, in the federal system we used to have 100 to 1 powder to crack cocaine disparity, meaning that if you had five grams of crack cocaine, you were facing the exact same punishment as someone who had 500 grams of powder cocaine. That was upheld by the United States Supreme Court, but recently that disparity has been reduced to 18 to 1. Why 18 to 1? I do not know, but there continues to be this type of institutional disparity that results in a disproportionate number of primarily young black men and young Hispanic men filling up our prisons. And as long as the war on drugs continues in that respect, I think we’re going to see the same type of disparate racial makeup of our prison population.

So this ordinance is an excellent first step to reduce that type of police presence at the very lowest level, because we know that someone possessing a small amount of marijuana isn’t the issue, isn’t the problem. We know that that person isn’t going to be getting into fights, isn’t going to go home and get engaged in domestic violence situations. So where can we look at the number-one cause of police-citizen encounters? It’s going to be these small-amount cases. So we can really help to reduce the overbearing law enforcement footprint in these communities and rebuild some of the trust with these communities that law enforcement critically needs in order to solve serious crimes, crimes of violence, homicide, burglaries, home invasions, you name it.

PERIES: Patrick, while we’ll probably all agree that this is a step forward, do you think Philadelphia should go in the same route of where a lot of states and a lot of cities have been deregulating it and legalizing it for health use as well as personal use?

NIGHTINGALE: Philadelphia cannot do that. Here in Pennsylvania, in our Constitution, we have a home rule charter. And that home rule charter sets forth that a city, a municipality such as Philadelphia may enact ordinances or legislations if it’s necessary because it’s not addressed on the statewide level, but it does not permit the city of Philadelphia to, for example, opt out of enforcing the Controlled Substances Act. Philadelphia cannot declare marijuana legal in Philadelphia. Marijuana is still illegal to possess. The city of Philadelphia Police Department is still free to make an arrest and charge a marijuana offense. Other law enforcement agencies that may be working within the jurisdiction of the city of Philadelphia, for example, a college, a university police department may still arrest and charge that. So the idea or the notion of Philadelphia has somehow exempted themselves from Pennsylvania’s Controlled Substances Act isn’t entirely true. This is more a step forward, a common sense agreement between the Philadelphia police, the mayor, City Council, and the people of Philadelphia that here is a different way the police can approach enforcing marijuana laws in Philadelphia.

What we need is statewide action. And right now in Pennsylvania, we’re very close to possibly passing a very comprehensive medicinal marijuana bill. It has very strong support in the Pennsylvania Senate and the Pennsylvania House. But we’re running out of time. We don’t know if we’ll be able to get that passed before the end of the 2014 legislative session. And we have a governor’s election that could stymie our efforts to get this passed within the next couple of months. But what we need is statewide action. We need statewide medicinal marijuana. We need statewide decriminalization. And ultimately, Law Enforcement Against Prohibition believes that we need to get law enforcement out of the issue of cannabis regulation in the entirety and leave it up to responsible adults to act however they choose to act, consistent with responsibility and principles of liberty.

PERIES: And, Patrick, one final question to you. Is the police force in Philadelphia on board in terms of this bill?

NIGHTINGALE: Yes, that is the significant difference, because they were not on board when it was first passed back in June. In fact, the chief of police said that in his opinion they were statutorily required to continue to make arrests for small amounts of marijuana. The activists in Philadelphia Chris Goldstein, Derek Rosenzweig, N. A. Poe, they did an excellent job working with Councilman Kenney to convince the police that this is a reasonable alternative, it does not improperly infringe on police power, it does not illegally infringe on police power, and police are free to continue to enforce the Controlled Substances Act. And I think that that was the type of reinforcement that the chief needed to know that it wasn’t City Council trying to strip his department of its legitimate and statutorily authorized powers.

PERIES: Patrick, thank you so much for joining us today.

NIGHTINGALE: Thank you very much. It was a pleasure to be on your show.

PERIES: And thank you for joining us on The Real News Network.


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