Marijuana testing for individuals on probation and parole serves “little public safety purpose” and should be stopped even in states where pot has still not been legalized, five former New York City probation commissioners said Tuesday.
The five former commissioners—Martin F. Horn, Michael Jacobson, James Payne, Raul Russi and Vincent N. Schiraldi—said research showed that revocations of parole as a result of failed marijuana tests were a major driver of high incarceration rates and disproportionately affected African-American and Hispanic individuals.
“What we want is that people under supervision lead law-abiding lives and meet their obligations as citizens,” the ex-commissioners said in a written statement presented to the New York State Assembly’s Standing Committees on Codes, Health, Governmental Operations, and Alcoholism and Drug Abuse.
“As long as they do, we should be no more concerned about them using marijuana than we are of them having a glass of wine.”
The statement, read by Schiraldi, called specifically for New York legislators to “codify” the ban on marijuana testing as New York prepares to draft a bill to legalize all forms of marijuana use, including recreational.
If the bill passes, New York would be the 10th state—and the second most populous state after California—to legalize recreational pot.
Marijuana for medical use is already legal in New York State.
The commissioners said the possibility of full marijuana legalization in New York only makes it more imperative to end a practice that has effectively undermined the state’s success in reducing prison populations.
Despite the closure of 13 New York prisons and a 39 per cent reduction in the inmate population between 1999 and 2017, prison admissions for parole violations increased by 21 percent between 2015 and 2016 alone, the commissioners said.
They noted that the vast majority of those sent back to prison were found guilty of technical violations, and in many cases, those violations were related to either failures in drug tests or absconding from probation and parole because of fear they would fail a drug test.
“Anecdotally, we know that our clients would skip appointments when they knew they couldn’t pass a pot test,” the statement said. “Thus fear of testing inhibits our staff’s ability to provide support to people under supervision for housing, employment, family support, medical care, or mental health care without adding public safety value.”
Below is an edited version of the written statement, presented by Vincent Schiraldi.
Today we hope to provide evidence about how those on probation and parole should be treated if marijuana is taxed, regulated and legally consumed. Our professional lives have helped us reach the conclusion that testing for marijuana as a blanket condition of supervision serves little public safety purpose, even absent legalization. If marijuana consumption ceases to be a criminal act, we urge you to codify protections for those under supervision to prevent needless incarceration for actions that would be legal for anyone else.
We begin with a quote from New York Federal Judge Jack Weinstein from July. Rather than revoking community supervision for marijuana use for an otherwise compliant defendant, Judge Weinstein decided to end his supervision, explaining that he would no longer revoke people for marijuana consumption, writing:
Like many federal trial judges, I have been terminating supervision for “violations” by individuals with long-term marijuana habits who are otherwise rehabilitated. No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use.
We argue that the same reasoning Judge Weinstein used in Brooklyn Federal Court should apply to those on probation and parole in New York.
The Growth in Scope and Burden of Community Supervision
First, [here is some] background on the growth of probation and parole in the United States, and on the burden that conditions of community supervision can pose to those required to abide by them.
Both probation and parole were created in the 1800s as an up-front diversion from incarceration in the case of probation, or as a back-end reward for good behavior in the case of parole. Both have since mushroomed right alongside prisons and jails, suggesting that they have become add-ons, rather than alternatives to, incarceration.
There are over four and a half million adults under supervision in America—more than double the number incarcerated. This is more than a three-fold expansion since 1980 and is more people than live in half of all U.S. states.
The nature of community corrections has changed, as well. Like the entire criminal justice system, probation and parole have become more focused on punishment, deterrence, and surveillance, than rehabilitation. The number of rules that individuals under community supervision must abide by have ballooned.
Recent reviews of supervision conditions have found that most jurisdictions have around 15 “standard” conditions, with the possibility of additional “special” conditions; thus creating a rule structure that can be nearly impossible to abide by, 100 percent of the time.
This has led the leading probation and parole organizations and 35 leading probation officials to sign on to a Statement on the Future of Community Corrections stating “community corrections has become a significant contributor to mass incarceration… [and] we recommend that the number of people on probation and parole supervision in America be significantly reduced.”
Thus, community supervision has become not only a deprivation of liberty in its own right, but also a substantial contributor to mass incarceration. Setting conditions, which in many cases cannot be met, contributes to a revolving door in which individuals who cannot meet those obligations cycle back and forth between community supervision and incarceration without improving public safety.
Trends of Mass Incarceration and Mass Supervision in New York State
Turning to New York, over the past two decades, our state has been a leader in reducing incarceration and closing prisons, driven by a reduction in prison commitments from New York City. There was a 31 percent reduction in the number of people in New York’s prisons between 1999 and 2017, allowing us to close 13 prisons and save over $160 million annually.
However, while the prison and community supervision populations have been shrinking, the number of people incarcerated on parole violations in state prisons and in city and county jails has been growing. Between 2015 and 2016 alone, our prison admissions for parole violations increased by 21 percent .
In fact, for every ten people who successfully completed their parole in New York in 2016, nine ended parole by being incarcerated, ranking us seventh nationally in parole failure. That year, nearly half of all New York parole exits were to incarceration, compared to only 27 percent nationally.
New Yorkers released on parole are five times more likely to return to incarceration not for new convictions, but for violating parole. Within three years of their release, more than half of those released from our state’s prisons in 2012 had been reincarcerated. Of those, an overwhelming 84 percent were reincarcerated for a technical violation, while only 16 percent had returned because of a new crime.
This also impacts the city’s jail. State and city leaders generally agree that Rikers Island should be closed, and all other pretrial and sentenced populations have declined by double-digits at Rikers over the past four years. During that time, only one population in the jail has increased, also by double digits: people held for state parole violations.
These sanctions fall more heavily on African-Americans than whites. African-Americans on parole are more than 12 times as likely to be detained for a parole violation than a white person on parole in New York City.
The Disconnect between Marijuana, Testing, Violations and Public Safety
So, probation and parole have become much larger than originally intended, with burdensome conditions that serve as tripwires to incarceration rather than as alternatives. In New York, parole revocations are still exerting upward pressure on incarceration especially for people of color.
Now, let’s look specifically at revocations for marijuana use.
In short, there is no compelling evidence to suggest that marijuana use threatens public safety. As NYPD Commissioner James O’Neill wrote in a New York Daily News op ed recently “[t]he NYPD sees zero value in arresting people for marijuana offenses when those arrests have no direct impact on public safety.”
Likewise, there is no public safety justification for routine testing for marijuana as a condition of probation or parole. What research does exist suggests that drug testing as a component of community supervision increases the likelihood of incarceration for violations, but does not reduce criminal behavior.
However, there is an established link between drug testing and absconding from probation or parole. This is confirmed by our experience as Commissioners – anecdotally, we know that our clients would skip appointments when they knew they couldn’t pass a pot test. Thus, fear of testing inhibits our staff’s ability to provide support to people under supervision for housing, employment, family support, medical care, or mental health care without adding public safety value.
Furthermore, as the New York State Health Department’s report on marijuana legalization indicates, studies of some states that have legalized medical or recreational marijuana use have seen reductions in both opioid deaths and opioid prescribing. Heroin use ameliorates some of the same pain as marijuana, but also disappears from the bloodstream more quickly.
Testing for marijuana thus creates a perverse incentive – the riskier drug, heroin, is the one less likely to be detected. Once marijuana use is legal, we should make sure that those under community supervision don’t feel compelled to make this risky gamble.
Apart from these pragmatic reasons to avoid testing for a legalized substance, there are also legitimate fairness and racial justice concerns at hand. African Americans and Latinos are arrested for marijuana at eight and five times the rate of white people in New York City despite equal marijuana usage rates.
Since African Americans are eight times more likely to be arrested for marijuana use, and twelve times more likely to be detained for a parole violation, their chances of a violation for marijuana are much greater than for a white person.
As the (New York City) Health Department’s report stated, “Subject matter experts noted one of the biggest drivers of racial disparities in criminalization and incarceration rates is marijuana, and the best way to address it is to legalize marijuana.”
For all of these reasons, we recommend that, once marijuana is taxed, regulated and legally consumed, prohibition of marijuana use should not be imposed as a condition of probation or parole except in rare and specific circumstances. It follows then that people on probation and parole shouldn’t be routinely tested for it. We recommend that you codify these protections, but we also encourage state and local parole and probation to implement them now, prior to legalization.
In limited cases, we suggest that prohibition of marijuana use might be added as a special condition. However, in the interest of due process and to limit potential abuse, that condition should only be added by a judge, if an adversarial hearing finds that marijuana was connected to an individual’s criminal behavior, and in which the defendant has had a right to be heard.
If a supervising officer suspects that a client’s marijuana use is hurting their ability to meet the other conditions of supervision, we suggest that, with supervisor approval, a single test for marijuana could be conducted. Data on testing for marijuana use, whether it be by supervisor approval or court order, should be reported to the Department of Criminal Justice Services so it can be monitored by this body and state officials.
In either of these special circumstances, we feel strongly that the outcome of testing for marijuana should never be used as the basis to revoke a person’s probation or parole. Instead, a positive test can be used for intervention, such as targeted treatment to aid successful completion. If these interventions fail, then only other problematic behavior, not marijuana use, should be the basis for revocation.
What we want is that people under supervision lead law abiding lives and meet their obligations as citizens. As long as they do, we should be no more concerned about them using marijuana than we are of them having a glass of wine. This is similar to the practice in Oregon and Washington, where marijuana is legally consumed.
This has been done successfully in New York City.
When I was Probation Commissioner, we administratively stopped testing for marijuana. Revocations fell by 45 percent, our relationships between staff and clients improved, and only 4 percent of our clients were re-convicted for a felony in the year following their completion of probation.
If that’s already possible, why not leave it to the discretion of community corrections administrators?
Well, (former) Commissioner Horn was my immediate predecessor, and had also ceased testing for marijuana, experiencing the biggest drop in probationer arrests in the state. Yet, in just the few months that separated us, testing for marijuana crept back into the daily practice of the department. Protections of this sort need to be codified so they’re not left to the vicissitudes of changing bureaucracies.
There is little evidence that blanket policies of testing for marijuana serve any public safety purpose. [These policies] can actually work against a department’s efforts to rehabilitate its clients, and threaten to exacerbate already-stark racial disparities in our criminal justice system.
As Judge Weinstein wrote, “Many people from all walks of life now use marijuana without fear of adverse legal consequences…[But the criminal-justice system] can trap some defendants, particularly substance abusers, in a cycle where they oscillate between supervised release and prison.”
We urge you to codify protections against routine testing for marijuana and to prohibit revocations to incarceration for marijuana use. These protections do not endanger public safety, but do serve the liberty and rehabilitative interests of the individuals on probation and parole. Revocations for marijuana use made little sense before, and will make no sense once marijuana use is legal for the adult population.
The full statement, with all citations, is available here.
The five ex-commissioners who signed the Oct. 16 statement, and their current positions, are:
- Martin F. Horn, Distinguished Lecturer in Corrections at the John Jay College of Criminal Justice, City University of New York; former Commissioner the New York City Departments of Correction and Probation; former executive director of the New York State Division of Parole; and former Pennsylvania Secretary of Corrections.
- Michael Jacobson, Director, Institute for State and Local Government, City University of New York (CUNY), Professor, Sociology Department CUNY Graduate Center; and former Commissioner of New York City Departments of Correction and Probation.
- James Payne, criminal/juvenile justice consultant; former Commissioner of New York City Probation; former Manhattan Assistant District Attorney; and former Chief of the Juvenile Division of New York City Corporation Counsel.
- Raul Russi, Chief Executive Officer, Acacia Network; former Commissioner of New York City Probation; former chairman of the New State Parole Board; and former Chief Executive Officer of the New York State Division of Parole.
- Vincent N. Schiraldi, Co-Director, Columbia University Justice Lab; Senior Research Scientist, Columbia School of Social Work; former Commissioner, New York City Department of Probation; former Senior Advisor, New York City Mayor’s Office of Criminal Justice; former Director, Washington, DC’s Department of Youth Rehabilitation Services.
Readers’ comments are welcome.