New Orleans City Council President Helena Moreno at the Thursday, August 5, council meeting. (Nick Chrastil/The Lens)

Under an ordinance passed Thursday by the New Orleans City Council, a police officer can write you a ticket for having a small amount of marijuana — but it will be essentially meaningless. 

The ordinance — sponsored by City Council President Helena Moreno and unanimously passed by the council on Thursday — automatically issues “prospective pardons” anyone cited for simple possession of marijuana under city law, waiving the fines that come along with the offense. It will go into effect on Sept. 15.

“This policy will help NOPD build community trust, plus is aimed at saving manpower hours so that they can instead focus on the major problems like shootings, murders, and overall preventing violence in our city,” said Moreno. “The time to end the criminalization of cannabis possession is now.”

As it stands, penalties for simple marijuana possession under city law are $40 for a first offense and no more than $100 for subsequent offenses. But for anyone cited after Sept. 15, those fines will be automatically waived. A spokesperson for the NOPD did not respond to requests for comment regarding the new laws, or whether the department would continue to issue meaningless citations for simple marijuana possession after the law goes into effect. 

Another ordinance passed on Thursday retroactively pardoned anyone who was convicted of simple possession of marijuana under city law after 2010 — which Moreno said amounted to roughly 10,000 cases.  She called the move “historic.”

Over the last decade the council has passed measures making penalties for marijuana less punitive, and over the last several years relatively few people have gone to jail for possessing the drug. But Moreno and other council members pointed to continued racial disparities in the issuing of citations as one of the reasons to remove penalties altogether. 

Data provided by City Council Public Safety Analyst Jeff Asher at a previous council meeting showed that eighty-six percent of people who received summons for marijuana possession since 2010 were Black.

“In the past few years, millionaires have been created —  generational wealth has been created — out of the same industry that has lead to the mass incarceration of people of color and the economically disadvantaged,” Councilwoman Donna Glapion said at the meeting. “The reexamination of the policies implemented during the war on drugs makes it painfully clear that the strategy was over aggressive and misplaced.” 

Medical marijuana is legal in Louisiana, but the state has yet to legalize the drug for recreational use. The Louisiana Legislature shot down attempts at full legalization this year, even as Gov. John Bel Edwards and others have conceded that eventual legalization is inevitable. In the meantime, however, legislators have agreed to significantly loosen penalties, passing a law earlier this year that removes the possibility of jail or prison time for simple marijuana possession. Previously, first-time offenders could face more than two weeks in jail. Repeat offenders faced years in prison. 

The state law is still more punitive than the ordinance that the council passed on Thursday. And New Orleans Police Department officers are empowered to cite people under state law rather than the New Orleans Code of Ordinances. However, even if they were to do that, Orleans Parish District Attorney Jason Williams has indicated that he will refuse those charges.

Prospective pardons, retroactive pardons

According to Moreno, it was not possible to fully legalize marijuana in the city due to the state law that makes it a crime. 

Her office has said that if the city were to remove the city law altogether, police would be forced to charge the offense under state law.  At the meeting on Thursday, Moreno said that the idea of “prospective pardons” to keep the city’s marijuana laws on the books, but to remove their teeth, was conceived by the council’s legal team, and was unique to New Orleans.

“The whole notion of a preemptive pardon on a specific accusation or charge is something that no other city is doing, and no other city has tried,” Moreno said. “With their fantastic legal minds they were able to come up with this option for us.”

In order to make the “prospective pardons” legal the council also had to pass another ordinance on Thursday that allowed the City Council or mayor to pardon whole classes of people, rather than only to individuals who apply for pardons. 

Sarah Whittington, with the Justice Accountability Center, an organization that provides services and representation for people who have been involved in the criminal legal system, said that it was her understanding that the prospective pardons would ensure that no future simple possession of marijuana citations would show up on someone’s record. But she said it is not immediately clear how the retroactive pardons will affect the records of the estimated 10,000 individuals who were pardoned on Thursday. 

At the meeting, Whittington said that she hopes the council takes steps to make sure that expungements are issued for the pardoned individuals to ensure that their records among the various law enforcement and criminal justices agencies throughout the state are cleared.

“We would also acknowledge and say that any pardon power you use today, we hope that you will continue with that process towards full expungement of these records as well,” she said.  “They should be sealed from public view, from the court systems, from law enforcement systems, from the local courts all the way up to the state police…. at no cost to anyone who has been impacted by these.” 

At $550, the expungement process in Louisiana is the most expensive in the country, according to JAC, and the process can be very involved — even for those who were just arrested and never convicted. Advocates warn that the inability for people to have their records expunged can prevent them from getting jobs, housing, and services. Efforts to automate the process at the legislature have failed to pass.

While individuals are now unlikely to face any penalties for possessing small amounts of marijuana in New Orleans, they can still be cited for smoking it. In addition to the prospective and retroactive pardons ordinance, the council also passed on Thursday a change to the city’s Smoke Free Air Act that  prohibits smoking or vaping of marijunaa outside of a private residence, or in a residence that is utilized for childcare, daycare, or as a healthcare facility. 

Moreno stressed that the ordinance was for “public health purposes” and not intended to criminalize the substance itself.

“When you get a ticket for smoking where you’re not supposed to, that’s not a drug charge,” she said. “That’s not a drug charge. And that’s the important piece here.”

Nick 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...