Marijuana arrests should be litmus test in the Philly DA race

The most important term in the district attorney race is “prosecutorial discretion.”

In every step of a criminal case, the prosecutor can make decisions with little to no checks on his or her power. These decisions are whether or not to charge a case or throw it away, what the charge should be, which punishment should be pursued, and whether or not to pursue a plea bargain. The U.S. Supreme Court has stressed the importance of prosecutorial discretion for multiple reasons, including preventing delays in the process of justice, adhering to the separation of powers (with the prosecutor being the executive side of the criminal justice system), and the importance of deferring to the expertise of the prosecutor.

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The next district attorney will not legislate. It is unlikely that the next district attorney will even lobby for legislation in city hall. What the district attorney can do to reform the criminal justice system is to use his or her discretion to create a new reality in Philadelphia.

As the DA's race progresses in Philadelphia, we get to hear more and more from candidates in interviews and candidate forums. Every question that the candidates answer is essentially about the use of discretion. “Do you support the decriminalization of recreational marijuana?” could and should be rephrased to ask “As DA, how will you use your discretion to support the decriminalization of recreational marijuana?”

All eight DA candidates have declared their support for the decriminalization of recreational use of marijuana. Mass arrests conducted by the Philadelphia Police Department this weekend should become a litmus test for the DA candidates to see if they are true reformers.

On Saturday night, at about 9 p.m., large forces of the Philadelphia Police Department detained 75 people and arrested 22 for use of marijuana at a Philly Smoke Session party in North Philadelphia. The party wasn’t some underground secret event but a public one that was organized via Instagram. The arrests occurred although back in 2014 Philadelphia decriminalized the use and possession of less than about an ounce to a fine carrying civil offense.

Here is the question that every DA candidate should answer this week: you wake up on a Sunday morning and on your desk are the files of 22 people arrested overnight for the use of recreational marijuana, what do you do? If the candidates are serious about their commitment to decriminalize recreational marijuana, then there is only one possible answer to this question and it is to use prosecutorial discretion to throw those cases away.

The point of electing a progressive reformer is to elect someone who has the courage to go against stream. The district attorney has the most unchecked power in the criminal justice system. In the world of checks and balance and incremental change, the DA can speed things up and be a true beacon of reform in the city. But if a “reform candidate” believes it is the DA’s job to follow and not to lead, for example waiting until marijuana is fully decriminalized and only then throwing charges, that is a big red flag for us that for that candidate “reform” is nothing but a buzz word.

The next district attorney could end cash bail, stop sending Philadelphians to death, end life without parole, end stop-and-frisk, and decriminalize marijuana. All these reforms could happen by smart and just use of prosecutorial discretion without one vote cast in city council. Refusing to charge cases will end stop-and-frisk and decriminalize marijuana, choosing the right charge will end unjust pretrial detention, pursuing the right punishment will end life without parole and the death penalty.

For decades, prosecutorial discretion has been used to hurt communities of color and drive up mass incarceration. It’s time to elect a DA that will use their discretion to promote justice and will put Philadelphia ahead of the curve. So before we go vote on May 16th, let’s make sure that whoever you vote for is willing to use their discretion as a tool for reform.

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Abraham Gutman is an Israeli freelance writer currently based in Philadelphia who focuses on Israel/Palestine, race in America and policing. He holds a master's degree in economics from Hunter College, where he did research on stop-and-frisk policies, and works at the Center for Public Health Law Research at Temple University. His Twitter handle is @abgutman.

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