On Tuesday, the New Orleans City Council’s Criminal Justice Committee unanimously  advanced a series of ordinances that would effectively remove all penalties for simple possession of marijuana in the city, in addition to pardoning anyone who was convicted or accused of the offense after 2010. 

The measures still need to be approved by the full council before they take effect. Council President Helena Moreno said that the measures likely wouldn’t be heard by the full council until August. 

Moreno, who sponsored the legislation, framed the package of laws as a way to reserve policing resources for more serious crime, as well as a way to end the detrimental and racially disparate impacts of marijuana enforcement. 

Over the last several years, relatively few people have gone to jail for possession of marijuana in New Orleans, and a new state law recently signed by Governor John Bel Edwards that decriminalizes the substance statewide means that it won’t happen in the immediate future.  

But the measures advanced by the committee on Tuesday would effectively remove any financial penalties for possession under city law as well. Currently, local laws dictate that individuals can be fined $40 if cited for their first simple possession of marijuana offense, and no more than $100 for subsequent offenses. 

If the proposed laws are passed by the council, the state prohibition on simple possession, which allows for financial penalties will still apply to New Orleans. But Orleans Parish District Attorney Jason Williams would likely be handling those cases, and has said his office not interested in prosecuting them.

The mechanism proposed by the council to achieve effective decriminalization appears uncommon, if not somewhat convoluted. 

While the proposed changes would not remove the city’s law against possessing small amounts marijuana, it would deem anyone who was alleged to be in violation of it “pardoned immediately.” So while NOPD can still cite someone for violating the municipal law, the ticket a person receives will become automatically void. 

Moreno explained that her staff came up with the idea of “prospective pardons” as an alternative to just removing from city code the law against simple possession. If that were the case, NOPD would still be able to utilize the state charge, which still allows for fines up to $100.

“I initially looked at just striking from the municipal code the section on simple possession altogether,” she said. “But then I was informed that because there is no legalization, NOPD would have to revert to the state charge, which is more punitive — so that wasn’t going to work.”

Adam Swensek, an attorney who works for the City Council, said that while the idea enshrining a “prospective pardon” in city code was “novel,” he was confident that it was legally above board. 

Moreno said that by immediately voiding any municipal citation for marijuana, police wouldn’t be required to do any of the subsequent work that is required after writing a ticket, which would free them up to address more pressing issues. 

“I talked about our police manpower situation,” Moreno said. “We are seeing an uptick in violent crime. Our residents are scared. And so I really do believe that it is incredible important that we redirect some of our NOPD manpower hours to violent and serious crime, instead of spending your time writing tickets for simple possession of marijuana — which are then followed up by police reports. Which are then followed up by NOPD officers having to log the evidence.  And then, after that, are followed up by a supervisor review.”  

A spokesperson for NOPD did not respond to requests for comment, and it was unclear if they would continue to issue essentially meaningless municipal citations for marijuana possession. 

According to data provided by City Council Public Safety Analyst Jeff Asher that was presented at the meeting, there have been between 2,200 and 2,700 municipal summons written for simple possession of marijuana each year over the last decade. (That number was significantly lower in 2020, which Moreno suggested was due to the pandemic.)  

Eighty-six percent of the people who received summons since 2010 were Black, according to the data. 

“That doesn’t make sense,” Moreno said at the meeting. “Because if you look at different studies about cannabis use, it’s really equal among race and ethnicity.”

Individuals could still get penalized for smoking marijuana in public if the council passes an ordinance to adjust the city’s Smoke Free Air Act, which prohibits smoking and vaping of any substance inside public places such as restaurants and bars. The new provision, advanced by the committee on Tuesday, specifically applies to marijuana and makes it illegal to smoke it outside of a private home or residence, as well as in any residence being used for childcare, daycare, or as a healthcare facility. 

But Moreno said that getting cited for a smoking infraction was not as damaging, and does not require as much police work, as a drug charge. 

“There’s a big difference,” she said. “One, a smoking summons doesn’t require any additional police action. If you write a ticket to someone smoking tobacco outside of school, it’s just a ticket — there’s no additional police action. But the bigger piece of this is, if you get one of these tickets, it’s not a drug charge. It’s just a ticket for smoking somewhere you shouldn’t be smoking.” 

Under the proposed laws, there will also be some relief to those who have already been convicted of marijuana possession in the last ten years through a blanket pardon, although no financial reimbursement will be available. 

Currently, under city law, the mayor or City Council can pardon individuals who have been convicted or accused of a crime following a petition from that individual. But on Tuesday, the Committee advanced an ordinance that would provide the City Council and mayor with the authority to grant pardons to whole classes of people without each of those individuals petitioning for the pardon in writing. 

An additional motion advanced by the committee would use that new authority to pardon anyone who was convicted or accused of simple possession of marijuana under city law after 2011. Moreno said at the meeting that the number of charges that would be pardoned by the motion was around 10,000.  The motion also mandates, however, that no one can recover any of the money they may have paid in relation to their previous convictions.

The move by the council comes weeks after Governor John Bel Edwards signed into law a bill that removes jail time for anyone in Louisiana who is accused of possessing a small amount of marijuana. The maximum penalty that can be incurred statewide is now a $100 fine. 

The New Orleans Police Department could still potentially issue a summons under state law for marijuana possession that would not be immediately pardoned by the council’s measure. But prosecuting those cases would fall under the jurisdiction of Orleans Parish District Attorney Jason Williams — who said he is not interested in taking them up

The council also advanced an ordinance on Tuesday that would remove marijuana “accessories” from the definition of drug paraphernalia under city law, and remove a marijuana drug test requirement that individuals who are booked in jail for a municipal or state offense (they are still required to be tested for PCP, opiates, and cocaine).

Nicholas Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...