What more could the Chief have done?

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It looked like that March 3 Public Safety Committee meeting was going to end with the police department and City Council butting heads.

The Chief said he issued directives on the 2018 marijuana ordinance, spoke at roll calls, spoke at platoon meetings, and etc., and felt that there was nothing more he could do to change officer minds, to make the numbers tell a different story.

But there was obvious sentiment from Councilfolk Reynolds, Van Wirt, and Waldron in particular that the Chief was the crux of the problem and that there was more that he could do as leader of the department.

What would that “more” be?

What if something like this happens in the future as we get into discussing the use-of-force directives and the Community Engagement Initiative?

There may come a time when we need to change officer minds.

What would we do?

We’d better be prepared.

Councilman Reynolds obliquely mentioned “tools” that the Chief might have.

To what was he referring?

Gadfly started to think of an analogous situation in his professional life.

The Freshman English (First-Year English) course at Lehigh U was a required course. It had about 40 sections. It had multiple teachers. Those teachers varied in their grading policies. Students were arbitrarily slotted into a section by the Registrar based on holes in their schedule. Students had no choice of section, thus no choice of grading standards.

How to be fair in such an arbitrary system, how to be fair to all students?

At one point in department history, we had “grading sessions.” All of us teachers would read the same student essay, give it a grade, then discuss how we arrived at that grade, trying to arrive at a consensus on the grade, on our standards.

Gadfly can vividly remember such a session in which the prof leading it spoke of a student essay that had been given an “A” as “the kind of writing that would make a yak wince”!

He was not very diplomatic.

Who can forget such articulation of the need to come together to arrive at some common standards to insure fairness for our students.

Was this called “norming”?

These sessions could be brutal. I remember being incensed as a full-of-piss-and-vinegar young Assistant Professor. Nobody was going to tell me what to do in my classroom, no sir. I mellowed.

But there was a need for fairness. And a need for our group to understand the need for balance between our independence and the good of the wider community.

And the way we did it was to come together and talk.

Can one imagine a group of police officers being presented with a scenario involving a small amount of marijuana — such as a traffic stop — and talking about what statute would be applied and why?

Perhaps these could be actual police reports with identifying data redacted.

The goal would not be to force behavior but to have peers work together to shape common standards.

City Council and the Police Chief discuss the city marijuana decriminalization ordinance (4)

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Marijuana Possession ordinance
Marijuana statistics
Marijuana Enforcement Policy March 11, 2020

The March 3 Public Safety Committee was courteous but tense.

Council was obviously frustrated that its progressive legislative move on the subject of small amounts of marijuana was somehow frustrated by Police practice.

Council members kept hitting the wall of the Chief’s belief that enforcement was in the hands of officer discretion and that he had no means or power to create change.

Fortunately, the meeting had a surprise happy ending. The Chief suggested that officers charge those caught with a small amount of marijuana under both the state law and the local ordinance — and the judge would sort things out at the hearing.

The Chief “buried the lead,” as President Waldron cracked. You could have saved us an hour if you had suggested this at the beginning, Councilman Reynolds said.

You could feel the meeting lighten up immediately. Here was an “out.”

The decision on enforcement was now “punted” to the magistrate.

And Council could review later in the fall to see how that was working out.

Crisis averted (for now).

Linked above are the original 2018 decriminalization ordinance, the statistics provided by the Chief (what do you see there?), and the actual police department directive on this what-we-might-call “compromise” new policy.

Not quite end of story.

Gadfly would like to go on one more step.

to be continued . . .

City Council and the Police Chief discuss the city marijuana decriminalization ordinance (3)

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Let’s move now to the conversation between President Waldron and Chief Diluzio at the March 3 Public Safety Committee meeting.

And let’s remember that we should be interested in the outcome regarding the marijuana ordinance in particular but also, more importantly now, in attuning ourselves to how interaction with police on a tricky issue works in anticipation of the upcoming Public Safety meeting responding to the George Floyd murder.

In this conversation, the Chief reiterates his belief that he can’t force his officers to use the city ordinance in the memorable “That’s like a totalitarian state. You don’t want your police like that.”

President Waldron asks two very important questions: what is the nature of the relationship between a Chief and a beat officer, and, thinking practically like a good Council president should, what can Council do to improve the situation?

President Waldron and Chief Diluzio

We have to have a lot of trust in the officers, said ARW, but we are looking at this in another way.  Officers use a lot of discretion in just about every interaction with the public. But, though we don’t know what the thought process is when faced with a decision about which ordinance to apply, this is certainly not what we on Council had hoped for. We would have hoped that every opportunity in Northampton County would have been met with the citation not the state law. And the question is why not? And the answer that we are hearing is fairness to people in the other county. The City wanted to make a progressive change, recognizing that there’s a sea-change in the country at large about marijuana and that Pennsylvania is a step behind. To which the Chief agreed that he believes in decriminalization and that he wishes the officers would use the local ordinance more, but he can’t change their minds and force them to. How to change the story that the numbers tell, the Chief asked? You just can’t order them to use the city ordinance. “That’s like a totalitarian state. You don’t want your police like that.” ARW asked about the relationship between a Chief and a beat officer — a Chief who says you should or must apply the local ordinance. What’s that conversation like, ARW asked? Wouldn’t the officers be following you and your leadership? “It isn’t that easy,” the Chief replied — I can’t tell them you will do this every time — every time is different, every case is different, every arrest is different. You have to let them use their discretion, their intelligence. The ordinance is not being used, but the officers do have a reason for not using it. Yes, ARW pointed out, the local ordinance is being used some times (19 out of 289) — if it were not used at all, the conversation would be totally different. Bottom line question for the Chief: is there anything Council can do to back up your wishes and to get the desired outcome we want? Trust the officers, the Chief replied. I stand behind them 100%, I do not look over their shoulders.

Gadfly would say that the answers to President Waldron’s two question are not satisfactory. The first question is really asking can’t you order the officer to do something. We are left with the feeling that an officer is pretty much left on his or her own. Hmmm. And the Chief again kind of throws up his hands in answer to the second question. Though, Gadfly must say teasingly, the Chief was playing possum, as they say, and does come up with a concrete suggestion for improving the situation, as we shall see.

to be continued . . .

City Council and the Police Chief discuss the City marijuana decriminalization ordinance (2)

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Gadfly kinda lost yesterday to his day job. He wanted to follow up on his Monday post and do a series of posts close together on the interesting Public Safety committee meeting March 3 concerning the police enforcement of our new summary offense marijuana ordinance.

That was an interesting meeting in itself because of the good comments by our Councilors. This was one of those meetings in which you can get a good sense of what each Councilor is made of, what makes them tick. There was good conversation.

But the meeting also now has heightened interest because of the scrutiny of police departments in the post-GeorgeFloyd era. In a sense, Council was calling the police department on the carpet for under-using the City ordinance, and we get an opportunity to see the police respond. In that respect, the March 3 meeting might foreshadow the upcoming (no date set yet) Public Safety meeting generated by the Reynolds/Crampsie Smith memo about use-of-force directives and a Community Engagement Initiative.

Remember from the last post that the decriminalized marijuana ordinance was only used by Bethlehem police in about 10% of the cases, thus subverting Council’s intent for the ordinance and creating unfairness compared to enforcement of the same violation on the Lehigh campus.

The Chief argued that he can’t control the officers out on the street, that the ordinance gave them discretion about which statute to use — harsh state or softer city — and that, though half the department believes in decriminalizing marijuana, almost all said it should be done by the state, and the current situation left them open to charges of bias.

We saw Councilman Reynolds pushing back on that, intimating without elaboration, that the Chief had tools at his disposal to foster more use of the City ordinance. Councilwoman Van Wirt goes much further down the road on this point, pretty clearly blaming the Chief in pretty direct and strong language for lack of leadership: They are not following what we enacted here because the tone is set by the leader.”

Lets listen in again.

Councilwoman Van Wirt and Chief Diluzio

Councilwoman Van Wirt began with a question, “Chief, do you believe officers’ own belief systems should enforce how they apply the law?” The Chief replied with a qualified yes and reiterated that in this instance we have given them discretion. PVW said we have given officers the excuse to follow two different laws. On the Westside (Lehigh County) they follow state law per Lehigh County D.A.s orders. But in Northampton County, “you [the officers] are very strongly encouraged by your Chief of Police, who sets the tone and leadership example for his policemen, to follow the will of City Council, who’s enacting the will of the people. . . . We have given them the ability and indeed the encouragement to use the decriminalization ordinance to apply the law over here. They are not going to get in trouble when they follow geographic boundaries.”  But, said PVW, assigning causation if not blame, “they are not following what we enacted here because the tone is set by the leader.” The Chief pushed back that he had talked with both D.A.s about our practice. In her second question, PVW then asked why we are applying the state ordinance to quantities less than 30 grams . There, she said, is the pivot point where we get unequal application of the law. PVW resisted the Pandora’s box argument the Chief has used to explain the difficulty the two different statutes have created. PVW said it’s clear what the law is on the west side of the Monocacy, and at the same time it is pretty clear what Council’s intent was on the east side. The Chief argued again that he could not order his guys to do something every time — they are not robots  — and that in some cases the officers will make a compassionate decision and throw the marijuana away. “I can not order everybody to do one thing.” PVW ended with “These numbers are telling a very troubling story about the use of the state ordinance especially when compared with what Judge Matos Gonzalez highlighted over at Lehigh University. . . . I hope you can understand why this Council is deeply concerned. . . . We’re not waiting for Harrisburg. We believe in local power. . . . I hope you can consider the will of Council. . . . This is unequal justice.”

Getting the picture? Our ordinance gives the officer discretion. The officers by-and-large are using that discretion to not apply the local ordinance and for an understandable if unwelcome reason. What to do if you are the frustrated City Council?

to be continued . . .

City Council and the Police Chief discuss the city marijuana decriminalization ordinance (1)

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Gadfly is anxiously awaiting news of the Public Safety Committee meeting on the police department use of force directives and on a proposed Community Engagement Initiative.

But thinking of the upcoming meeting reminded him of a previous Public Safety meeting on March 3 about police department application of the relatively new city ordinance decriminalizing possession of a small amount of marijuana.

Bethlehem is one of 7 cities in the state to have a local summary offense ordinance that can be used in certain circumstances instead of the stiff state misdemeanor charge that can have severe and long-lasting consequences for someone caught with a small amount of marijuana.

Southside district judge Nancy Matos Gonzalez triggered the meeting by her concern about the difference between the way Lehigh students and Southsiders were being charged for possession of small amounts of marijuana.

Gadfly shelved discussion of that meeting when the pandemic caused things to go to hell, but he returns to it now as we are thinking in great depth about the relationship between the police department and the community.

It turns out that, though City Council voted 7-0 in favor of the decriminalizing ordinance, the police department was only using it in about 10% of cases. Council wanted to know why.

It was a very interesting meeting, and Gadfly will spend 2-3 more posts on it.

Chief DiLuzio opened the meeting providing statistics that City Council asked for. Gadfly hopes to provide you with a full copy of those statistics, but the one that catches your attention right away is that in the period since the city ordinance was enacted there were 289 arrests for minor marijuana possession and in only 19 of those arrests was the city ordinance the charging statute — a pitiful 10%!

That was certainly not what City Council envisioned as the consequence of their ordinance.

Here’s the Chief.

Chief DiLuzio

The new City marijuana ordinance went into effect July 2018, and the Chief had statistics through January 2020 — about 1 1/2 year’s worth. There are between 150-200 minor marijuana possession charges a year on a force of 154 officers. The numbers show we are not actively pursuing marijuana arrests. Average of 1.1 arrests per officer per year. Charges usually are made related to something else, such as a traffic offense, or if they smell it and thus have an obligation to act. Lehigh University had only 5 such arrests during this time. During this period there were 289 total minor marijuana arrests: 270 charged to state law, 19 to the City ordinance. 127 arrests were made on the Southside, of which 9 were charged to the City ordinance. 47% of arrests were made on the Southside. The largest age group is 25-34. 71 arrested were black, 121 Hispanic.

Councilman Reynolds asked Councilwoman Negron to state the rationale for her ordinance and then probed for the reason why the city ordinance was not being used as it was imagined. First of all, the choice of whether to use state or city law was left to the discretion of the arresting officer. The Chief surveyed his department, found that about 50% of the officers were ok with the decriminalization ordinance but that almost all felt that such an act must come from the state and be universal in the state. Otherwise, they — the officers — were in a tricky middle ground where they could easily be accused of bias. The Chief seemed to feel that he was handcuffed (bad pun on Gadfly’s part) and couldn’t legislate officer behavior. Councilman Reynolds firmly but respectfully pushed back against that, feeling that the department could do more to foster use of the city ordinance.

It’s a good conversation. Listen in.

Councilman Reynolds and Councilwoman Negron and Chief Diluzio

Councilwoman Negron went over the rationale for the City ordinance. Councilman Reynolds asked the Chief to comment. “Is that a rationale that you agree with?” The Chief’s in the “middle of the bridge.” His “professional opinion” is that he’s ok with the officer using either option. His “personal opinion” based on extensive experience is that marijuana should be decriminalized but at the state level. The push has to come from Harrisburg. Right now the situation is creating problems for local police. He doesn’t want to see the police caught in a political issue. The Chief did a survey (117 of 154 officers responded) in the department, and there was a pretty even split — about 50% for decriminalization and 50% against (specifically, 44% yes to decriminalization — 56% no). The Chief describes the 6 question survey. For instance, 97% said the state should do the decriminalizing. They want the law to be universal across the state. The feeling is that it is not fair that people caught elsewhere get a stiffer penalty. The door is open, for instance, to somebody claiming I got a misdemeanor citation because I’m black, when a block away someone else — white –got a summary offense. Officers are afraid to use the city ordinance because they can be subject to a claim of bias. Nowadays anybody can make such a claim, and all of a sudden the officer’s name is splashed all over the papers. There are 7 cities in the state with a city ordinance. JWR indicated that in Phila, for instance, the number of uses of the state law went down because the Philly police took a strong view for the city ordinance. JWR asked directly whether the Chief sees a problem in the fact that the officers are choosing the state law 90% of the time. The Chief said that honestly he would like to see the city ordinance used more but that he is not out on the street when those decisions are made by his officers. Has the department considered changing the directives to make them stronger? The Chief said the factors for use of the City ordinance are already in the directives and that he has talked with the officers at roll call and platoon meetings. “It’s up to the officers to use this.” We are at the “stumbling block” of state v. city law. JWR intimated that there are “tools” the Chief as leader of the department could use, but he didn’t go further. JWR said when comparing with Lehigh, it’s hard not to see the “troublesome implication” there between what happens when you caught at Lehigh and a few blocks away in the city. The Chief said Lehigh is a different department serving a different community. The answer/solution to the disparity is a decision at the state level. JWR said he respects the Chief, but he thinks we could do more. JWR expressed his disappointment. The Chief said he can’t change the inner feelings of people or tell them how to do their job when they are on the street. The police can’t be robots. JWR: “I think we can do more. I think we can come up with stronger directives,” but he respects the job the Chief has to do.

to be continued . . .

Bethlehem ordinance decriminalizing small amounts of marijuana “is not being used . . . But officers do have reasons they aren’t using it.”

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Gadfly will dig in to the report by Chief DiLuzio at the Public Safety meeting March 3, but, for starters, Sara’s article gives you a nice overview.

Sara K. Satullo, “Bethlehem decriminalized weed, but city cops aren’t on board.” lehighvalleylive.com., March 6, 2020.

Bethlehem City Council took a progressive stand when it unanimously decriminalized possession of a small amount of marijuana back in 2018, in hopes of preventing a minor arrest from derailing a person’s future job and school prospects.

Yet, a year-and-a-half later data show that Bethlehem police officers are hesitant to ignore state law in favor of issuing small time violators — those with 30 grams or less of pot — a city fine.

In fact, city police only used the new city law for 19 of the 289 total minor marijuana arrests made over that same time period. In the heart of South Bethlehem, Lehigh University police reported five low-level weed arrests in 2019, only charging one person under state law.

City police Chief Mark DiLuzio shared these stats with council’s public safety committee Tuesday evening, explaining officers have been hesitant to rely on the city law amid fears they’d be accused of dispensing justice unfairly. “You are correct it is not being used,” DiLuzio said. “But officers do have reasons they aren’t using it.”

Members of city council and District Judge Nancy Matos Gonzales, who penned a December letter to DiLuzio, worry there’s currently an inequitable system in place due to uneven enforcement. Forty-seven percent of the minor marijuana arrests since the ordinance was enacted occurred in the Southside, which covers Matos Gonzalez’s district.

At the close of the meeting, the chief surprised council by floating a possible solution: city officers can fine someone under the city law or charge them under both the city and state law and leave it up to a district judge. The idea was met with support from council and DiLuzio promised to issue a directive to his department.

The city ordinance only applies to the Northampton County section of the city because Lehigh County District Attorney Jim Martin — the top law enforcement official in the county — says state law supersedes the city law. Pennsylvania treats marijuana possession as a misdemeanor punishable by up to 30 days in prison and a $500 fine.

“Many of the officers, and I’ll be real blunt with you, they have an issue with it,” DiLuzio said of the option to use the city law. “Their issue is: we have the same violation on this side of town and the same violation here and we have two different ways to enforce it. It should be universal and it should come from the state.”

The chief surveyed his 154 officers department and the 117 cops who responded were split on decriminalization with 44% favoring it. But 97% agreed it should come from state lawmakers.

The majority of the marijuana arrests stem from officers encountering people while investigating another crime, the chief said. The stats don’t reflect the officers who choose to toss a small amount of pot they find. “We are not out there hunting down people and jumping out of bushes to arrest people for weed,” DiLuzio said.

Council members were upset to learn police were not choosing the city fine the majority of the time and pressed DiLuzio to explain why and outline any steps he’s taken to encourage its use.

Officers get to decide whether to charge someone under the city or state law, DiLuzio said. So many factors go into this: Was the person cooperative? Are they under the influence? Were they driving? Is it only a little bit of pot?

Of the 19 people who were charged under the city law: five were white, four black and 10 Hispanic, the chief said. “It was used more on minorities,” he said.

Council members shared Judge Matos Gonzalez’s concerns that Lehigh students arrested by campus police are facing small fines for marijuana violations, while most people arrested steps off campus by city police face state misdemeanor charges, carrying stiffer penalties, court costs and required court appearances.

Decriminalization must come from Harrisburg, the chief said.

Councilman Michael Colon, who chairs the public safety committee, said council wasn’t willing to wait for change in Harrisburg, where mechanisms move slowly. Eleven states and Washington, D.C., have legalized marijuana, so large chunks of the U.S. population are free to walk into a dispensary and buy whatever they want. In most of Pennsylvania, a small amount of pot gets you a criminal record, Colon said.

Council wants to be at the front of this sea change, which is why it joined at other cities in decriminalization, Colon said. He predicted this will be looked at like Prohibition in the near future.

What’s not coming to committee tomorrow: the marijuana arrest matter

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10 days or so ago we posted a November 20, 2019, letter from Bethlehem Police Chief Mark DiLuzio, co-signed by Deputy Chief Scott Meixell, to the Northampton County Court administrator with concern about a November 14 conversation between District Justice Nicholas Englesson and two police officers regarding a traffic stop of an Hispanic male and subsequent marijuana charge, a conversation in which the arresting officer felt he was accused of being racist. In epistolary response that we also published, the Judge said that his purpose in initiating the conversation was to counsel the officer about possibly racially insensitive behavior.

Gadfly has framed the situation this way: what’s at stake here is the possibility that we have either a racially insensitive police officer backed by his Chief or a district judge abusing his power, overstepping his bounds.

The City has denied there was any wrongdoing on the part of the officer and is withholding further comment.

In fact, there has been little public comment at all from the City. The newspapers have not picked up on this. It may be that the Mayor’s prepared statement at the February 18 City Council meeting is the only public comment. Again, not picked up by the papers as far as Gadfly knows.

Gadfly thinks this a serious matter and did publish private letters.

Gadfly has devoted a half-dozen or so posts laying out the controversy, ending with one in which he says he still has twenty questions, mostly about how the City has handled the matter. (See “Police” under Topics on the sidebar for the letters, the Mayor’s statements,  and all the posts.)

Gadfly wishes there was more openness. That’s what gadflies always wish. Sigh.

Because charges of ugly racial insensitivity are around us right now.

Laurie Mason Schroeder, “Man who was punched and kicked by Allentown police in viral video not guilty; judge rips conduct of officers.” Morning Call, February 21, 2020.

Peter Hall, “Jim Thorpe police accused of racial profiling Latino drivers.” Morning Call, February 21, 2020.

Not the kind of activity we want to be known for.

And Gadfly is not saying we are.

But let’s be sure.

Was City Council briefed on this? Was that what the executive session with the Mayor was about February 18? If so, would it be permissible for Council to at least make a statement saying they had been briefed, that they are monitoring the situation, and that they agreed that lip-buttoning was best?

Marijuana enforcement differential comes to committee tomorrow

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Nate Jastrzemski, “Southside marijuana charges uneven.” Bethlehem Press, February 17, 2020.

More than a year ago Bethlehem passed a marijuana decriminalization ordinance giving police the discretion to charge people arrested for possession of a small amount of marijuana either under the harsh federal statute or the less severe City ordinance comparable to receiving a traffic ticket.

‘Twas wondered from the beginning how the ordinance would be applied since the Lehigh County District Attorney wanted all cases to be charged under the federal statute. Creating the potential for a boundary dispute. Charged one way one side of the street, another way on the other.

But there’s another issue too.

In December Southside District Judge Nancy Matos Gonzalez published a letter calling attention to the fact that Lehigh University police were charging Lehigh students under the lesser penalty while by-and-large the Bethlehem police were using the federal statute — what she saw as a problem for her dispensing fair and equal justice.

Lehigh students get off with a slap on the wrist, Southside residents get hammered.

Gadfly has written about this here and here.

The Judge’s full letter is printed here.

On January 6 the Mayor said that the Police Chief would investigate the county differential, and on January 13 Councilman Reynolds called also for information on application of the laws in the different geographical regions of the City.

The issue in the Southside is particularly crucial because of the racial and social class discrimination implications if there is an uneven application of the law between, for example, Hispanic residents and “privileged” white students.

We would assume that necessary information gathering for tomorrow’s Public Safety Committee meeting would necessitate contacting the various magistrates and gathering statistics. And, like the Bethlehem Press reporter above, Gadfly tried 2-3 weeks ago to do a bit of investigating himself to see if that was happening.

The other Southside Judge had not been contacted by the police but reported to Gadfly that during a several month period before Judge Gonzalez’s letter was publicized, the Bethlehem ordinance was not used at all in 117 cases. Another Judge met with me only to say that there had been no contact from Bethlehem police and no statistics were gathered. All other judges would not talk with me at all.

The information from the two Southside judges makes you wonder if Bethlehem police practice is undermining the intent of the recent ordinance decriminalizing the use of small amounts of marijuana, as well as wonder if the ordinance is applied differently in different parts of the city — especially in the heavily Hispanic Southside.

We are hoping for a good discussion based on solid data tomorrow.

The Public Safety Committee is chaired by Michael Colón, with members Grace Crampsie Smith and Olga Negrón. The meeting is 5:30 in Town Hall, before the regular City Council meeting at 7PM.

Marijuana arrest the subject of a dispute between the police and a judge

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On November 20, 2019, Bethlehem Police Chief Mark Diluzio wrote to Northampton County Court Administrator J. Jermaine Greene about a conversation District Judge Nicholas Englesson had with two Bethlehem Police officers relating to a traffic-stop arrest of an Hispanic man for possession of a small amount of marijuana, an arrest that revealed an outstanding warrant for a man with the same name as a deported felon. Deputy Chief Scott Meixell co-signed the letter with Chief Diluzio. Further investigation at headquarters indicated that the man was not the subject of the warrant.

Chief Diluzio was concerned about the racial character of the Judge’s conversation with the officers in, it was claimed, such remarks to the arresting officer as “I don’t want you hassling citizens because they speak Spanish.” The arresting officer said he felt that he was being accused of being racist. The two officers present at the conversation with the Judge gave statements about the conversation.

The letter signed by the Chiefs and the statements of the two officers can be found here:

DiLuzio and Meixell to Greene 11 20 19

The Chief writes that “The Bethlehem Police Department serves a diverse population which includes a substantial number of citizens from the Hispanic community. The Department has always fostered a positive relationship with members of that community.”

Judge Englesson responded to the Chief’s concerns in a letter to Court Administrator Greene dated November 29, 2019. That letter will be printed here tomorrow.

The Mayor has provided a statement to Gadfly as follows: “The City Administration is well aware of the matter. It has been thoroughly reviewed internally. The matter is the subject of an ongoing non-criminal investigation. We caution you not to speculate as to the nature of the ongoing investigation. We caution you that it would be inappropriate to assume the truth of the allegations. We caution you that it would be inappropriate to assume there is good cause for the allegations. The City Administration will have no further comment because the information and evidence are subject to confidentiality under Pennsylvania law. ”

By “allegations,” Gadfly assumes the Mayor means allegations from both sides, for Judge Englesson has a side of the event too, as we will see tomorrow.

As usual, Gadfly recommends going to the primary sources. Withholding judgment till you hear all sides is a good thing.

There’s a significant Public Safety committee meeting March 3 at 5:30 in Town Hall on questions about the police application of our relatively new marijuana decriminalization ordinance. Both the Mayor and committee chair Michael Colon have indicated to Gadfly that the subject of Chief DiLuzio’s letter will not be discussed there.

Judge Englesson’s response tomorrow.

Official responses to the marijuana enforcement differential

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Say, didn’t I just see all of you in line in front of me at Weiss market an hour or so ago?

We posted earlier about the differential in the heavy way Bethlehem police are charging residents and the lighter way Lehigh Police are charging students in front of southside judge Nancy Matos Gonzalez, a serious question, said the judge, of her ability to dispense  justice equitably.

In other words, in this judge’s experience the Bethlehem Police were not very often utilizing the lesser charge option made possible by the ordinance.

And it makes you wonder if Bethlehem police practice is undermining the intent of the recent ordinance decriminalizing the use of small amounts of marijuana, as well as wonder if the ordinance is applied differently in other parts of the city.

At Council January 2, the Mayor reported that the Police Chief will be meeting with the new Northampton County District Attorney Houck about his views on our new ordinance. Remember that the decriminalizing ordinance was not effective in the Lehigh County parts of Bethlehem because the Lehigh County D.A. ruled that Federal law still uniformly applies there. The former Northampton County D.A. ok’d the option for the police to decide whether to make the offense a heavy (Federal) or light (City) charge.

The Mayor’s response seems solely aimed at the question of how the marijuana law is functioning in the context of the split county jurisdiction in our town.

But that’s not the same question as how the police option to bring a light or a heavy charge is working.

Councilman Reynolds’ request to Council seems have the necessary breadth.

marijuana 2

Reynolds’ request for a Public Safety meeting on the issue will be communicated to Council for action at next Tuesday’s meeting.

Southside magistrate has difficulty dispensing equitable justice in marijuana cases

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Nicole Radzievich, “District judge questions how Bethlehem treats minor marijuana offenses.” Morning Call, December 16, 2019.

We thought that the difficulty with decriminalizing uses of small amounts of marijuana in Bethlehem would come because of our bi-county status.

Because of the different views of the respective District Attorneys, marijuana use in Lehigh County Bethlehem would remain a criminal offense whereas in Northampton County Bethlehem it might only be a summary defense at the discretion of the arresting officer.

Different legal jeopardy on two sides of the same Bethlehem street, as it were.

Gadfly has not heard problems or complaints about this anomaly, however.

But the disparity is of another kind — unregarded, though probably easily enough foreseen, when the legislation was discussed.

In the following letter, Southside magistrate Nancy Matos Gonzalez points out that Southside residents are penalized much more severely than Lehigh students for the same marijuana offense.

Lehigh generally charges students under the city ordinance with a summary offense on the order of a traffic ticket. But city officers, with discretion to file either a summary or a criminal charge, choose the criminal charges against Southside residents 3+ times more than Lehigh police do against Lehigh students.

The disparity is so great, says Matos Gonzalez, “that the differing policy practices between the two agencies has, in my professional opinion, brought forth a situation which constricts my ability to dispense equitable justice.”

In short, it would appear that the Lehigh students are getting a break that Southside residents aren’t from our well-intentioned legislation to decriminalize use of small amounts of marijuana.

By a big margin.

Sensitive to the “vastly differing” demographics “between both communities” unarguably based “on race, ethnicity, and economic levels,” Matos Gonzalez asks how this disparity can be justified.

The differential financial burden of a criminal charge is severe, as Matos Gonzalez documents, but the part of the decriminalizing legislation rationale that Gadfly remembers most vividly from City Council discussion as well as the horror stories at the local public hearing held by Lieutenant Governor Fetterman was the “residual sanction of a resulting permanent criminal recordfor using a small amount of marijuana.

By and large, Lehigh students are being spared that career impediment.

Hmmm.

Gadfly remembers vigorous public comments last year at Council meetings by Jeff Riedy, Executive Director of Lehigh Valley NORML and would welcome hearing from him again on this situation.

And also some expanded remarks on marijuana enforcement by the Chief beyond what he said about drugs in Bethlehem during the recent budget hearings (the last few minutes of this video).

The question would seem to be whether enforcement practice by Bethlehem police is undercutting the intent of the legislation and whether that enforcement practice is different on the Southside than in other parts of the City.

A tip o’ the hat to Magistrate Matos Gonzalez for calling attention to a possible “systemic issue” that should be addressed.

Gadfly always recommends going to the primary source. The magistrate’s full letter is printed below.

Dear Chief DiLuzio,

I recently received your letter referencing my previous discussions with both yourself and Mayor Donchez. To be clear, I initiated contact to voice my concern regarding a noted potential for disparity in sanctions, permanent records, and financial cost for Individuals prosecuted for small amount of marijuana. This noted potential for disparity is solely based upon which one of the two police departments operating within this district prosecutes the case. Further, expressed that the differing policy practices between the two agencies has, in my professional opinion, brought forth a situation which constricts my ability to dispense equitable justice.

As you are aware, Bethlehem Police and Lehigh University Police both operate in South Bethlehem. Understandably, as independent agencies, each has its own Standard Operating Procedures. I am fully cognizant it is not my role, practice, nor desire to critique those procedures. I do, though, unabashedly feel compelled to illuminate what is potentially an undetected consequential result of policy implementation and absolutely believe it is my role to speak out to systemic matters affecting my rulings and sworn oath to uphold justice.

As the presiding Magisterial District Judge in this district, I offer the following summary of happenings since the enactment of the law up until the date of meeting with the Mayor on September 26, 2019. These are the pertinent factors relating to these case filings on which I base my concerns:

  • Lehlgh University PD has by general policy and practice filed the local summary ordinance in the Small Amount cases, which decriminalizes the possession of marijuana.
  • Bethlehem PD policy allows for “Officer discretion to use ordinance, state law or both. By practice, the Bethlehem Police officers have, in this district alone, filed the criminal grading of Poss of a Small Amount at a rate” of 3.25 times more often than the ordinance offense. Additionally, for cases that a Bethlehem Police officer has filed a Poss of Drug Paraphernalia charge related to Marijuana, the officer is 7 times more likely to file the criminal Poss of Small Amount charge.
  • Defendants who are charged with a city ordinance of Poss of a Small Amount of Marijuana are ordered to pay a set fine and cost amount of $116.25 for a first offense and a maximum set fine and cost of $241.25 for up to a offense within one calendar year.
  • Defendants who plead guilty to the criminal charge of Poss of a Small Amount of Marijuana can be ordered to pay fine and cost of up to $1073.75 and up to 30 days incarceration.
  • In an effort to balance the scales for parties prosecuted for the criminal charge rather than the summary offense, I, by practice, set the fine at $1.00 minimal amount. Unfortunately, once the cost for criminal processing fees are attached the total minimal amount due is $574.75. These parties are subject to cost almost 5 times higher than the summary cost and they are subject to a potentially more serious residual sanction of a resulting permanent criminal record.
  • Unfortunately, there are many individuals who wish to plead guilty to the charge at the Preliminary Hearing but do not have the means to post the $574.?5 fine and cost assessment. The district court does not supervise fine and cost collection of criminal cases and those parties, more often than not, waive their preliminary hearings, often by necessity to have time to raise some funds. In the interim months awaiting their case, they are subject to bail and with the potential for supervision with specified conditions. Once their case comes to resolution, they are subject to a significant increase in cost at the higher court level.
  • For the defendants who do not dispute the merits of the case but are interested in preserving their record, they often chose to waive their Preliminary Hearing to the higher court and seal: the ARD program. They are then subject to the assessment of bail with potential conditions, often subject to further cost to hire legal counsel to maneuver through the process of the higher court application process; face even more significant court cost at the higher level; and may be Subject to probationary Supervision.

For the sake of transparency, I will state my motive in addressing my concerns is not based on a philosophical stance regarding how Marijuana cases should be prosecuted. Undoubtedly, the approach towards the prosecution of Marijuana cases is in a transitional time period on the national, state, county, and city level. I am also aware that has complicated circumstances specific to the City of Bethlehem, which lies within two differing counties. My motive is purely to strive for an equal playing field for all who appear before this District Court. Right now, that does not currently exist and the result is polarizing. To be as frank as possible, if you are arrested for the charge at hand by Lehigh University, which is a long standing prestigious academic institution, you will likely, by far, be subject to less sanctions, court supervision, and permanent effects than if you are a citizen in the same circumstance from the city streets charged within the same Magisterial District that is all contained within a one square mile radius. I ask how that can be justified. I will not ignore that the demographics between both communities are unarguably vastly differing based on race, ethnicity, and economic levels. Therefore, I stand by my comment made earlier that there is a systemic issue to address here, of which I do not wish to be complicit. I remain hopeful this writing will prompt a closer look at the circumstances at hand and potential for disparity, particularly with the order “Officer discretion to use ordinance, state law or both.”

Sincerely,

Nancy Matos Gonzalez