When the Legislature and the governor determine that certain behaviors are sufficiently problematic, they deem them criminal. Although law enforcement officers cannot choose which actions are criminal, they retain significant discretion to decide how to use the resources that are available to them. These decisions should be focused on assuring the safety of the public. Yet, New Jersey makes thousands of arrests each year for low-level offenses such as disorderly conduct (12,988 in 2015) and loitering (1,416)24—nonviolent crimes categorized as disorderly persons offenses or petty disorderly persons offenses. No low-level offense produces more arrests than marijuana possession. In 2015, New Jersey law enforcement agencies arrested nearly 28,290 people for small-scale possession of marijuana.25 Indeed, the enforcement of low-level offenses throughout New Jersey has resulted in aggressive stop-and-frisk practices and numbers-based policing strategies that lead to encounters between the police and the public that are not necessary for ensuring public safety. Moreover, while people rarely face long sentences for low-level offenses such as marijuana possession, arrests have other serious consequences. Criminal and civil sanctions can prohibit those arrested from securing employment, housing, or an education.26 And, arrest for possession of even a small amount of marijuana can include up to six months in jail,27 loss of a job28 and driver’s license,29 and more than $1,500 in fees and fines.30
There is a better way: not every community problem merits police intervention. Some behavioral disturbances, such as disorderly conduct, can be handled more effectively through referrals to social services rather than arrests and the ensuing involvement in the criminal justice system.
Re-direct law enforcement priorities to those matters that truly affect public safety. To that end, legalize marijuana and review the efficacy of criminal statutes related to other low-level offenses. Recognize that social services are more appropriate interventions for some behavioral offenses.
PROTECTING IMMIGRANTS FROM DEPORTATION OVER MINOR OFFENSES
When people are arrested for low-level offenses they may come to the attention of federal immigration authorities that have in recent years increasingly relied on local law enforcement to gather and share information about arrestees. Since 2007, state, county, and local police officers in New Jersey have been required to inquire about the immigration status of anyone arrested and charged with an indictable offense or driving while intoxicated.31 That information is used by federal Immigration and Customs Enforcement (ICE) to place arrestees in detention and start deportation proceedings. It need not be that way.
New Jersey could join many municipalities and such states as California32 in strictly separating local law enforcement from federal immigration enforcement. Such separation is widely recognized as a useful tool in gaining the trust of immigrant communities, which in turn encourages crime victims and witnesses to come forward, and more effectively guards public safety.33
Limit local law enforcement’s interactions with Immigration and Customs Enforcement. Rescind and replace Attorney General Directive 2007-3, which requires police to inquire about arrestees’ immigration status in certain circumstances.
COLLECTING RELIABLE AND CONSISTENT DATA
Reliable data can drive good decision making at all stages of the criminal justice process, including with regard to arrests. But not all police departments keep track of arrests in ways that allow meaningful analysis. For example, some police departments fail to record ethnicity data in arrest records, specifically for Latinos. The City of Elizabeth, for example, does not record information that would allow the tracking of Latino arrests—despite having a population that is 60% Latino.34 The failure to track this information likely results in the underreporting of disparate treatment of Latinos in the criminal justice system.
Other departments fail to maintain arrest data in formats that enable researchers to isolate arrests based on the crime charged.35 The axiom that you cannot manage what you cannot measure is particularly true in policing. Effective data collection and retention practices assist police departments in determining resource allocation priorities, identifying public safety needs, and building a comprehensive picture of department-wide policing practices.
Require police departments to improve data collection and management, to enable systematic analysis of arrests and other data.
Departments must allow for easy access and retrieval of arrest, summonses, stop-and-frisk, and police-search information for analysis, for the benefit of both the police department and the public.