Discretion and Discrimination: Civil Citations versus Arrests for Marijuana Possession

by: Regan Woodbury

On June 30th, 2015 Miami-Dade commissioners voted “to let police treat marijuana possession the same way they do littering and loitering—by issuing a citation with a $100 fine that keeps the offense out of the criminal justice system.”[1] The measure passed by a 10-3 margin and allows for this arrest-alternative in possession cases involving 20 grams or less of marijuana. Under this new code provision, police officers are granted full discretion to either make an arrest, which ultimately can be charged as a criminal misdemeanor, or to issue a civil citation, a punishment that carries a fine but no jail time or criminal record. Recently, a number of other Florida counties have adopted similar ordinances.

It goes without saying that an arrest for possession carries numerous collateral consequences which are not precipitated by receiving a civil citation.

Federal, state, and local laws impose a convoluted network of barriers on anyone with a criminal record, no matter how small. These collateral consequences of conviction vary depending on the type of crime committed, but can affect nearly every aspect of a person’s life, including eligibility for social services, professional licenses, housing, student loans, parental rights, immigration status, and even volunteer opportunities.[2]

On its face, this new provision appears to align with a recent nationwide shift towards supporting decriminalization and legalization.[3] A 2016 Gallup poll found that public support for legalization of marijuana was higher than it had been at any other point in Gallup’s 47-year trend.[4] This provision, however, is not equivalent to decriminalization.[5] Rather, depending on the decision of the officer, criminal misdemeanor charges as well as potential jail time remain an all too real possibility.

While it is clear that there has been a shift in public opinion towards favoring lessening punishment for low-level drug offenses, this provision is deserving of scrutiny. Leaving the decision of whether to make an arrest or issue a civil citation entirely up to an officer’s discretion allows implicit racial or gender based biases, as well as intentional discrimination, to taint our justice system. The reality is, “[e]ven individuals who denounce racism often harbor unconscious and unintentional racial biases.”[6] Moreover, such implicit biases have been documented to plague members of the public and police officers alike.[7]

Our jails and court systems are currently overburdened to the point of near-collapse; if every criminal defendant insisted on his right to a jury trial, the entire criminal justice system would crumble.[8] We must make efforts to mend our justice system, and we must do it quickly. However, at the same time, we must be cautious to ensure that the measures we put in place further, rather than detract from, the goal of making our system a more equal and fair one.


[1] Douglas Hanks, Miami-Dade Adopts $100 Fine for Pot Possession (June 30, 2015), http://www.miamiherald.com/news/local/community/miami-dade/article25858318.html

[2] Monica Haymond, Should A Criminal Record Come with Collateral Consequences? (December 6, 2014), http://www.npr.org/2014/12/06/368742300/should-a-criminal-record-come-with-collateral-consequences

[3] See Douglas Hanks, Miami-Dade Adopts $100 Fine for Pot Possession (June 30, 2015), http://www.miamiherald.com/news/local/community/miami-dade/article25858318.html

[4] Art Swift, Support for Legal Marijuana Use Up to 60% in U.S. (October 19, 2016), http://www.gallup.com/poll/196550/support-legal-marijuana.aspx

[5] Douglas Hanks, Miami-Dade Adopts $100 Fine for Pot Possession (June 30, 2015), http://www.miamiherald.com/news/local/community/miami-dade/article25858318.html

[6] Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies, The Sentencing Project, http://www.sentencingproject.org/wp-content/uploads/2015/11/Race-and-Punishment.pdf (pg 5-6)

[7] Id. at 14.

[8] Michelle Alexander, Go to Trial: Crash the System (March 10, 2012), http://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice-system.html?_r=0

Leave a Reply

Your email address will not be published. Required fields are marked *