Can you support Black Lives Matter and still prosecute marijuana cases? This prosecutor says yes.

Protestors with signs during a silent march to end

Protestors with signs during a silent march to end "stop-and-frisk" program in New York. During the Bloomberg administration, civil rights groups went to court to end the NYPD's use of a tactic known as "stop and frisk," which involved detaining, questioning and sometimes searching people deemed suspicious by officers. Finding marijuana was often used to justify the policy. (AP Photo/Seth Wenig, File)

This story originally appeared on PA Post.

When Black Lives Matter protesters marched through Chambersburg in early June of this year, the district attorney for Franklin County said he opened the windows to his office to better hear their chants and cries.

“I purposefully left my window open and heard you,” wrote Matt Fogal in an open letter published on June 7, the Sunday after the protests. “I encourage you to continue in this positive spirit of change and equality, and to not abandon this momentum. Demand that our national and local leaders authentically confront institutional racism.”

Fogal, a Republican, garnered national attention for his letter, which was widely shared on social media. In the weeks afterward, he was featured in both the New York Times and The Philadelphia Inquirer, portrayed as a prosecutor willing to engage in the conversation over criminal justice reform despite serving an overwhelmingly conservative, Trump-friendly electorate.

But in the two months since writing that letter, Fogal’s office pushed for sentencing in at least one case where the person was arrested for possessing a small amount of marijuana. And another man is currently in the county prison on a marijuana possession charge because he can’t come up with the $2,500 bail set by a judge, according to court records and affidavits reviewed by PA Post. Both men are Black.

Overall, six people have been charged since June for possessing small amounts of marijuana. And prior to the Black Lives Matter protests, Fogal’s office regularly prosecuted people for possession of the drug for personal use.

The actions by Fogal’s office stand in stark contrast not only to the views he expressed in his letter, but are out of step with a growing trend toward decriminalization after prosecutors recognized the overwhelming racial disparities in how marijuana cases are tried with Black and Latino defendants. The Pennsylvania District Attorneys Association supports decriminalization, and more than a dozen cities across the Commonwealth consider most marijuana cases to be no more serious than a traffic ticket.

Reformers say that in a time when criminal justice issues are at the forefront of the national conversation around race, ending marijuana prohibition could be the simplest step to making sure people are treated more equitably by police and the courts.

On June 25, almost three weeks after Fogal penned his letter in support of Black Lives Matter, Clarence Hines III was booked into the Franklin County Jail on marijuana possession charges.

The 25-year-old construction worker was in town from Columbus, Ohio, visiting his girlfriend, when he said the two got into an argument outside of a gas station in Antrim Township.

Soon after the argument started, a handful of state troopers – four or five, he remembers – arrived on the scene and started asking him questions.

“I guess the gas station owners thought to call the police,” he said in a phone interview.

According to the arrest affidavit, one of the troopers reported smelling marijuana and asked Hines if he had been smoking. Hines, who is Black, said yes and handed over a small bag of marijuana. A search of the car turned up another small bag. Altogether, the police confiscated 8 grams of marijuana – enough for about 12-15 rolled cigarettes.

“I think it’s completely ridiculous, because we know the impact that the war on drugs has had on communities of color. That’s no secret to anybody, especially prosecutors, because they’re the ones who have been locking these people up.” – Matt Sutton, Drug Policy Alliance

Had Hines been back home in Columbus, he would have been issued a maximum $150 fine and would not have been required to serve any time in jail.

But because he was in Franklin County, Hines ended up with $412 in court fines, served a week of jail time, and had his fingerprints added to the state’s criminal database.

Civil rights advocates and defense attorneys say that Hines’s arrest and conviction run counter to the public statements made by many local leaders, including Fogal, who pledged support for reform in the wake of George Floyd protests.

Matt Sutton, media relations director for the Drug Policy Alliance, says prosecutors can’t claim to support criminal justice reforms while simultaneously continuing to prosecute low-level marijuana cases.

“I think it’s completely ridiculous, because we know the impact that the war on drugs has had on communities of color,” said Sutton. “That’s no secret to anybody, especially prosecutors, because they’re the ones who have been locking these people up.”

Although different racial and ethnic groups use marijuana in similar numbers, Black defendants make up 30% of marijuana possession cases in Pennsylvania, despite representing just 11% of the total population. The statistic – published in an April report by the ACLU –  reinforced reformers’ arguments that local prosecutors should reexamine how they handle charges against people who possess small amounts of the drug.

“If you’re not willing to take the concrete actions to fix these disparities, then it’s just talk,” said Sutton.

Since 2016, 900 people were charged by Fogal’s office for possessing small amounts of marijuana under 30 grams, according to case data shared with PA Post by Joshua Vaughn, a reporter at The Appeal. So far in 2020, 98 people in the county have been charged with possession of the drug for personal use. At least one person who was charged this year, 25-year-old Harold Barton, remains in the county jail awaiting trial. (Barton couldn’t be reached through the jail’s messaging system.)

Almost a quarter of all marijuana possession cases in Franklin County were brought against Black people, despite the group comprising less than 3% of the county’s population.

But that disparity isn’t unique to just Franklin County. In Dauphin County, 665 people were charged with possession of under 30 grams in 2018, the most recent data available. Of those cases, half of the defendants were Black, despite them being only 18.5% of the county’s total population. That’s two years after the county’s largest city, Harrisburg, decriminalized small amounts of marijuana through a city ordinance.

Across six central Pennsylvania counties in 2018 – Adams, Cumberland, Dauphin, Franklin, Lancaster and Lebanon – Black people made up a quarter of all cases for possession despite being only 6.5 percent of the population of those counties, on average.

Many marijuana possession cases never proceed beyond an appearance before a magistrate judge, with defendants often pleading down to lesser charges or summary tickets. In an email, Fogal said that his office has tried to plead small possession cases down to summary offense of disorderly conduct, akin to a traffic ticket with no jail time.

“It is going to be up to the defendant as to whether he/she will plead to a summary disorderly conduct,” he wrote. “I can’t make someone resolve a case with a plea, but I can make the offer to resolve. In that situation, it’s what we offer rather than waiting on the defendant to bring it up.”

Fogal said he hopes the nation focuses on bigger, “fundamental issues related to race in our country.” And he said he is “aware that there is a desire to address drug offenses in the wider conversation, and I’m at the table listening and learning more from all perspectives engaged in the conversation.”

But even if prosecutors decide to make a deal with defendants, the process still unnecessarily puts people through the criminal justice system, said Patrick K. Nightingale, a private defense attorney and chair of the Pittsburgh chapter of NORML, a national marijuana reform group.

“Whenever someone is charged and booked, they are coming into contact with the criminal justice system,” said Nightingale, noting that defendants often have to hire expensive attorneys or use a tax-funded public defender if they fight the charges.

“All for what? All to plead someone down for a small amount of marijuana,” he said. “This is a first, simple step to reduce citizen-police encounters over something that is largely harmless and legal for millions and millions of Americans in the U.S. As long as prosecutors maintain marijuana prohibition, we are going to consistently see systemic disparity in policing in terms of race.”

There are a handful of cities in Pennsylvania that already decriminalized small amounts of marijuana. In Harrisburg, possession of the drug can result in at least a $75 ticket; Pittsburgh residents carrying up to 30 grams of marijuana can be issued, at most, a $100 fine. Even smaller tertiary cities, such as Bethlehem, Norristown and Steelton issue tickets to people and fine them as low as $25 for possession without facing jail time.

The Pennsylvania District Attorneys Association supports local prosecutors choosing to not pursue low-level marijuana cases, said Greg Rowe, president of the association. Rowe said that the PDAA’s board has urged local prosecutors to come up with ways to keep people out of the criminal justice system through diversionary programs, such as drug court, or treating marijuana like a traffic ticket, with no need for an arrest or booking.

But regardless of how prosecutors choose to enforce marijuana laws, frontline enforcement still falls to individual troopers and police officers.

In Pittsburgh, after the city passed an ordinance decriminalizing small amounts of marijuana in 2015, arrests for possession increased the following two years. In 2018, the city still charged more Black people than white people with possession of under 30 grams of marijuana.

And even after marijuana was decriminalized in many of the Commonwealth’s cities, marijuana arrests by the Pennsylvania State Police in 2019 remained higher than they were in 2009.

That’s because troopers are required to enforce state laws, said Lt. Col Scott Price, deputy commissioner of operations for the state police: “Generally in these situations, our guidance is to enforce the law as it’s written.”

He pointed out that, in the end, it’s up to prosecutors to figure out how to handle marijuana cases.

Gov. Tom Wolf (D), who supports legalization, could direct Pennsylvania State Police to de-prioritize arrests for possession of small amounts of the drug, as state law gives him general authority over the force. The governor’s office punted a question on his authority over to State Police, where a spokesperson said that even if Wolf issued such an order, it would still be up to individual troopers to decide on an arrest.

State Rep. Jake Wheatley (D-Pittsburgh), who for two years has proposed a bill to legalize recreational marijuana use, said that’s because decriminalization still gives police discretionary authority.

“You leave opportunities for police to have discretion, and we’ve historically been on the wrong end of that,” he said, referencing the Black community. “What I don’t get is that they’re saying, ‘We’re okay with you doing an illegal act, as long as you do it in small amounts.’ Instead, they should be saying that this act shouldn’t be a criminal act, at all.”

Get the WHYY app!

Want a digest of WHYY’s programs, events & stories? Sign up for our weekly newsletter.

Together we can reach 100% of WHYY’s fiscal year goal