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Editorial: Fairer penalty for holding pot

New York City Police Commissioner Ray Kelly speaks

New York City Police Commissioner Ray Kelly speaks at a news conference in Albany about legislation to decriminalize possession of small amounts of marijuana (June 4, 2012). Photo Credit: AP

The state's marijuana possession law has been abused and needs a fix. Legislation announced yesterday to clarify its language should ensure it won't be manipulated anymore in New York City to saddle minorities with criminal records for offenses that cost others only a small fine.

Current law makes possession of up to 25 grams of marijuana a violation punishable by a $100 fine. But if that same amount of marijuana is in public view, it's a misdemeanor with a maximum penalty of three months in jail. That's a reasonable distinction that unfortunately, in combination with the city's controversial stop-and-frisk policy, has been used in ways that raise troubling questions about the discriminatory, unequal application of the law.

Police officers in the city stopped and frisked more than 600,000 people last year, in an effort to take illegal guns off the street. In the course of those stops, officers instructed many of the people they approached to empty their pockets. Individuals who pulled out marijuana were then slammed with the more serious misdemeanor possession charge, even though the only reason the pot was in public view was because they complied with the officers' instructions.

The unfairness of that policy was compounded by the glaring racial disparity in whom the NYPD stopped and frisked. Almost nine in 10 were black or Hispanic. And of the 53,124 arrests in New York State last year for possession of 25 or fewer grams of marijuana, 94 percent were in New York City and eight in 10 were black or Hispanic. More than half were younger than 25, and many had no criminal history. But once burdened with a record for possession, those tens of thousands of young people will find it more difficult to land a job, find housing and launch productive lives.

New York City Police Commissioner Ray Kelly in September ordered officers to charge only the less serious violation when the marijuana was not initially in public view. But clarifying the law now would make sure the department doesn't slip back into its past practice.

The legislation that Gov. Andrew M. Cuomo backed yesterday, with Kelly at his side, would make possession of a small amount of marijuana, whether in private or in public, a violation punishable by a $100 fine. The bill is narrowly crafted to clarify the intent of the 1977 statute. It won't legalize marijuana or soften the existing penalty for smoking it in public. Mayor Michael Bloomberg and Assembly Speaker Sheldon Silver have added their voices in support. The State Senate ought to get on board too.

The bill won't resolve serious questions about the troubling racial disparity in the NYPD's application of the stop-and-frisk policy. But by clarifying this 35-year-old statute now, lawmakers can take an important step toward ensuring that state policy on marijuana will be applied fairly and equally.