Santa Fe passed decrim two years ago, but people are still going to jail for small amounts of marijuana

(Anson Stevens-Bollen)

“It is the duty of the police department to make possession of one ounce or less of marijuana the lowest law enforcement priority,” reads the ordinance widely considered Santa Fe’s pot decriminalization order.

Under the rule, people caught carrying small amounts of marijuana in Santa Fe face a maximum fine of $25, the punitive equivalent of jaywalking or running a red light. Possession of pipes, grinders and other paraphernalia associated with marijuana use carry the same penalty. Most significantly, decriminalization encouraged the end of jail time as punishment for carrying less than an ounce of pot.

City Council approved the ordinance on August 27, 2014. But that hardly marked the end of marijuana arrests in Santa Fe.

Local cops have sent on average more than one person to jail per month for petty pot possession in the last two years, according to an SFR investigation.

Santa Feans caught with small amounts of marijuana are paying the price with court fines and time away from work, and those are just the immediate repercussions. In the long run, a criminal drug conviction—even for marijuana—can follow someone for a lifetime.

Santa Fe Police Chief Patrick Gallagher (Anson Stevens-Bollen)

City Police Chief Patrick Gallagher, who has been at the helm of the department for half of the last 24 months, repeated the mantra of “lowest priority” in a public forum this month. But in an interview with SFR, the chief said some officers “adamantly oppose” the policy.

"I'm asking the people of Santa Fe to give us time. Give us time and we'll figure this out," he says.

From time of passage through July of this year, SFR counted 36 instances of city police arresting people on marijuana charges, leading to jail stays ranging from a few hours to multiple nights.

Here are some of their stories:
An 18-year-old and three minors smoked marijuana wax in a car parked outside a house party. Parents came to pick up three teenagers. The fourth went to jail.

A 46-year-old woman looked poised to pick up a citation for three joints when an officer noticed a bag of marijuana "sticking out of her bra area." He arrested her instead. Caught in a lie, she spent the night in jail.

Another 18-year-old slept in jail this Memorial Day weekend, his first time behind bars, for possessing pot and a pipe. Before the arrest, he had been driving his inebriated mother and a hitchhiker, and police pulled him over because his passengers had stolen alcohol during a stop at Walmart.

The 36 people jailed in the last two years for marijuana lean on the young side, with a median age of 24. The arrests tend to occur on the Southside. About 70 percent happened southwest of St. Michael's Drive, mostly during traffic stops along Cerrillos Road.

According to lawyers who work in magistrate court, the arrests more often affect people of color. It is difficult to verify the claim, however, since neither jail booking sheets nor police reports maintain consistent records on race as it pertains to Latinos. Most of the arrestees also meet income limits to qualify for a public defender.

"We're not seeing anyone that's attending the opera," says Morgan Wood, the top public defender for the 1st Judicial District.

SFR also reviewed a limited number of criminal citations for people who did not go to jail for marijuana but still received state charges carrying heftier penalties than the $25 municipal ticket—a woman sitting on a bench at the Railyard and a man sitting in his car outside the Regal Stadium 14, for example.

The record of how often the police department cites under the city ordinance for marijuana possession isn't totally clear. Department leaders have thrown out various answers for the number of administrative citations issued for pot.

Chief Gallagher says the department has issued 13 tickets under the ordinance in the last two years, but a request to inspect those tickets resulted in evidence of just eight.

And spokesman Greg Gurulé tells SFR he can't be certain whether the eight citations "on record" or the 13 cited by the chief represent the actual number of pot possession tickets issued in the last two years. (The Albuquerque Journal in April 2015 reported that the police department issued 17 citations.)

The department did not begin issuing the citations until May 2015, when after months of bureaucratic delay, the city adopted formal guidelines and officers finally had the right paperwork.

SFR analyzed hundreds of pages of jail booking data, police reports, and court filings for this story. In our final count, we did not include marijuana charges concurrent with other criminal offenses, such as driving while intoxicated or trespassing. We also excluded defendants who picked up marijuana charges during bench warrant arrests. (If we had included any of those cases, the number of people facing small-time possession charges from city cops under state law would climb to nearly 70.) Finally, as the county and state have yet to decriminalize the drug, we whittled out arrests made by other law enforcement agencies with jurisdiction over the city.

This is not the first time people have raised questions about the police department's enforcement of marijuana possession. Early reports from SFR, the Albuquerque Journal, The Santa Fe New Mexican and the Associated Press suggested city cops largely ignored it.

When asked about the arrests, Mayor Javier Gonzales reiterated his support for statewide legalization.

"Until the state catches up, I hope we are able to work to find better alternatives than taking people to the detention center," he says. But beyond suggestions, the mayor says his hands are tied.

"I am not going to second guess or mandate to police officers which codes they should follow. They're responsible for protecting the community and that's going to be their call," Gonzales added.

Although Gallagher admits the implementation of the policy has not been perfect, he maintains the department needs to enforce the code as intended.

"We definitely understand what the council has passed. It is our lowest priority," he said earlier this month at a scheduled speaking event at Collected Works Bookstore.

Gallagher, who took over the department leadership when Eric Garcia stepped down the summer of 2015, says he has encouraged police officers in one-on-one meetings to always "consider" using the civil citations.

But not all 82 sworn patrol officers are on board. He says his own internal sample survey found about half disagree with the policy.

"Some of our officers are adamantly opposed to it," Gallagher says. "Look, we all have our personal opinions, but that shouldn't change the way we enforce the law."

Sgt. Troy Baker, president of the Santa Fe Police Officers Association, disputes any notion that the department has a problem following the ordinance. "I am seeing a lot of officers turn in marijuana and paraphernalia for destruction without filing any charges," Baker says. "We're not running around chasing people for marijuana. We have much larger issues here."

At the bookstore, the chief brought up a 2015 analysis by the Drug Policy Alliance that found more than 50 criminal charges for marijuana possession since decriminalization, and offered an oft-repeated justification: Most were concurrent with other state offenses.

"If I arrest you for domestic violence and find marijuana in your pocket, you're not getting a civil citation for that. It's a waste of time. I'm not going to bifurcate the case," Gallagher told the crowd.

When SFR asked the chief about the 36 arrests we found—composed strictly of marijuana and paraphernalia possession—the chief repeated his defense. Since paraphernalia is a separate charge, he suggested, it only makes sense to consolidate the cases in state court.

SFR noted that possession of marijuana paraphernalia also carries a $25 fine under the new municipal ordinance.

Gallagher's response: "If that's the case, I might have to educate some officers."

After reviewing six of SFR's cases, Gallagher says some other factors that could justifiably trigger an arrest include prior police encounters, involvement of a vehicle (even parked cars) and failure to cooperate with an officer.

Under New Mexico's controlled substances statute, first-timers found with less than an ounce of marijuana face up to 15 days in jail and a $100 fine. Subsequent strikes carry up to a year and a $1,000 fine.

And then there's the fine print.

Criminal drug convictions also incur surcharges that dwarf municipal fines, even in cases where a judge defers sentencing or hands down lenient punishments.

Magistrate court collects $75 from anyone found guilty of drug misdemeanors, including petty marijuana possession. Another $40 of mandatory fees helps fund court facilities, corrections and the state judicial system. That's per conviction. If a defendant gets tagged with paraphernalia in addition to marijuana possession, they'll owe twice as much.

And they better pay up or risk paying more. Missing a payment or court date triggers a bench warrant for a person's arrest, which automatically incurs a $100 fee, not to mention additional jail time.

Even those who skirt conviction can take a big hit in the wallet. While magistrate judges typically release first-time marijuana defendants without bond, those deemed flight risks might find themselves paying hundreds to get out of jail.

An 18-year-old spent Memorial Day weekend in jail for pot and paraphernalia possession. (Anson Stevens-Bollen)

The 18-year-old who was driving his inebriated mother had his car impounded as he got arrested for marijuana. It cost $1,200 to get his Impala back, he says. He originally paid $900 for the car.

Perhaps the most severe consequences, however, aren't written in the books. An arrest, even if it does not lead to conviction, will show up on background checks.

A criminal marijuana conviction can disqualify a person from jobs, federal student loans and public housing assistance. Repeat offenses for undocumented immigrants can lead to deportation.

And it's people who need government services the most who could find themselves disqualified for small amounts of marijuana. Wood, the public defender, tells SFR, "Most of the people arrested on these charges are our clients."

The Law Offices of the Public Defender, which uses federal poverty guidelines to determine eligibility, entered appearances on 20 of the 36 cases.

In the summer of 2014, when Santa Fe's elected officials voted to decriminalize marijuana, they knew they couldn't explicitly order police to ignore state laws. So the City Council encouraged law enforcement to try something new, creating an option for police officers to look in a less punitive direction.

City cops were suddenly imbued with the extraordinary power to determine whether a person caught with pot should shell out three hours of minimum wage or sleep in the slammer.

"So two people caught on the same day with less than one ounce could be treated completely differently?" surmised City Councilor Christopher Rivera in discussions before the Council voted to pass the decriminalization ordinance.

"Yes sir," replied Deputy Chief Dale Lettenberger, who retired last year.

Potential problems that opened with this door were not lost on Rivera.

"I almost feel like we're putting our police department in a tough situation because it seems at some point, we're going to be accused of profiling in some way," he said.

No one SFR spoke with for this story—attorneys, advocates, police officials, and judges—has a problem with granting police officers some discretion over how to charge marijuana possession. But people still have concerns over the ambiguity of how those determinations are made.

Presiding Magistrate Judge David Segura (Steven Hsieh)

"If the chief isn't limiting officer discretion, that is a policy decision that needs to be addressed," says David Segura, the presiding judge for Santa Fe County magistrate court. Segura served in the city police department for 20 years before retiring as a captain in 2000.

"We would hope that a culture would be set that makes it very clear under what circumstances an officer can arrest under state law," says Emily Kaltenbach, director of the New Mexico division of the Drug Policy Alliance, an organization that spearheaded the push for decriminalization.

Police reports offer some clues as to why officers might have opted for state charges over municipal citations. One arrestee reportedly matched the description of a suspected car burglar. He ultimately only got pegged with marijuana possession, and a judge dismissed the case for lack of prosecution.

Another man reportedly got into a physical fight with his girlfriend. (In the report, both the arrestee and girlfriend claim it was strictly verbal.) An officer arrived on the scene before cuffing and frisking the man. During that process, the 24-year-old volunteered a bag of marijuana in his front right pocket.

"I didn't do nothing yo," the arrestee says, according to the police report. "The weed, it's a 35-dollar ticket right? So you can't arrest on that and you have to let me go."

The officer, though, writes that he "told [the man] I don't know what he was talking about and informed him of statute 30-21-23(B)(1). Anyone found guilty of this is subject to arrest."

"Don't arrest me. Just give me a ticket," the man allegedly responded. "Please just let me go."

He spent the night in jail.

Other cases seem to defy common sense. In June, a man received municipal citations for panhandling and prohibited camping. He also got slapped with a state citation for marijuana possession, meaning he will have to go to two different courthouses to resolve one police stop's worth of allegations.

In another case, four officers responded to a call reporting two men blasting loud music in a parked car at 3 am. Will, who asked SFR not to publish his last name, sat in the driver's seat, where he had been smoking with a friend. They were parked on Will's driveway in a subdivision off Agua Fría.

Smoke wafted out of the 20-year-old's window as an officer asked him if he had any narcotics in the vehicle. Will volunteered a "piece of paper containing a small amount of marijuana," according to the police report. The officer arrested Will and drove him to jail for the first time in his life, where he spent the next 18 hours.

A month later, Will went to court. He waited in Judge Donita Sena's gallery for two hours, but the police officer who arrested him did not show up that day.

Sena dismissed the case. (Arresting officers act as prosecutors in magistrate court.)

"It was bullshit to spend a night in a jail for nothing, basically. I mean, I could see if I had a whole ounce of weed or a pound," Will says.

His experience reflects a common trajectory of criminal marijuana charges in Santa Fe—from arrest to jail to dismissal.

While police officers generally charge marijuana possession in state court, they seem less motivated to follow these cases through the judicial system.

Of the 36 cases counted by SFR, 12 led to convictions. Officers either failed to show up to court or declined to prosecute in 15 cases, resulting in dropped charges. The remaining cases are pending.

The tendency to decline prosecution has not been lost on those who represent low-level marijuana clients. Ethan Nissani, a local criminal defense attorney, says he will "always advise my clients to fight those cases, because if you keep showing up these cases go away."

Meanwhile, the magistrate court bench says it supports leniency when it comes to petty pot misdemeanors.

"Most of the judges here are cognizant of the impact of marijuana convictions on young people, so we encourage a resolution that has the least impact," says Judge Segura.

Santa Fe's decriminalization ordinance came during a national reckoning over the so-called War on Drugs.

A growing number in Washington are questioning the wisdom of locking people up for victimless drug crimes. Bipartisan efforts to reduce sentences for drug offenses have been stirring for years now—from city halls to Capitol Hill.

Of those efforts, marijuana policy represents the lowest-hanging fruit. At the same time, it's bound to be one of the most effective ways to chip at America's incarceration rate, the highest in the world. Marijuana accounts for about half of all drug arrests, according to a 2010 study by the American Civil Liberties Union.

A poll this summer found that more than half of Americans support the full legalization of the plant. In New Mexico, the figure could be much higher. A 2016 survey by Research and Polling Inc. found 86 percent of state residents ages 18 to 34 support it.

Four states and the District of Columbia have legalized marijuana, while another 23 states have passed decriminalization legislation.

Voters in Santa Fe and Bernalillo counties passed non-binding referenda indicating their support for decriminalization, and a proposal to decriminalize pot in Albuquerque garnered city council approval before dying by mayoral veto. Statewide efforts to legalize or decriminalize pot have also emerged in the last couple years, though none have been successful.

Our city short-circuited its route to decriminalization. In the summer of 2014, more than 6,000 registered voters in Santa Fe signed a petition to put an ordinance on the ballot. To save an estimated $80,000 for the election, the council bypassed a citywide vote and enacted decriminalization right there in City Hall.

It was the second major legislation passed that year reflecting the national sea change over drug policy. Just months prior, the city kicked off Law Enforcement Assisted Diversion, a program that directs low-level drug offenders to treatment instead of jail.

Aside from the moral calculation of a less punitive approach to drug offenses, these two policies garnered significant support for another reason: They save time and money. News that city police, more often than not, continue arresting and criminally citing marijuana users defuses enthusiasm over the ordinance's potential fiscal impact.

"There should be some baseline level of education provided to our officers about both laws and the impacts of enforcing each law," Councilor Joseph Maestas tells SFR when we shared our findings. "They should know it costs more money, it takes much more resources, when you enforce the state law versus the city law."

"We don't have the opportunity to intervene with a defendant if there is something else going on, like if they are self-medicating. If we could just get everybody out of jail, we could work with them, maybe get them some resources, some medication," Wood tells SFR. "But we don't have the time to do that, especially with all these cases being filed."

But for citizens who spoke in favor of the ordinance, the issue remains a matter of personal conscience.

Before the Council cast its approval for decriminalization, William Wadsworth, a 74-year-old retired electrical engineer, spoke before the chamber. He said he "smoked marijuana for approximately 60 of those years."

"Get this done with," he said. "There's been enough damage done to our young people. I was one of the fortunate few that never got caught."

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