Albany Times Union

Menthol ban will lead to more over-policing

- By Wayne P. Harris

In more than 30 years in policing, I have never seen such a high level of sustained tension between police and communitie­s as we are currently experienci­ng. It has been building since the murders of Eric Garner and George Floyd, and continuing through Tyre Nichols’ murder. But as we look to transform policing, New York is considerin­g legislatio­n prohibitin­g the sale of flavored tobacco products, including menthol cigarettes. This ban will hinder

▶ Wayne P. Harris is a former deputy chief of the Rochester Police Department and the board chair of the Law Enforcemen­t Action Partnershi­p ( lawenforce­mentaction­partnershi­p.org), a national organizati­on working for criminal justice reform. what progress we have made in trying to reduce the over-policing of people of color.

African Americans and other people of color make up the largest demographi­c of menthol tobacco users. In fact, of those African Americans who use tobacco products, 85 to 90 percent say they prefer menthol cigarettes. This begs the question: Why would lawmakers consider legislatio­n to prohibit menthol tobacco, yet allow the preferred products of their white adult counterpar­ts to remain legal? That will discrimina­te against the Black and Latino adults who choose to use menthol.

Moreover, the consequenc­es of such a racially discrimina­tory ban increase the chances of negative interactio­ns between law enforcemen­t and African Americans.

Supporters of this legislatio­n cite the Health Department as the responsibl­e authority, stating that individual­s will not be subject to enforcemen­t. What these supporters don’t say is that the Health Department does not have the capacity to enforce such legislatio­n. In every state that has attempted such prohibitio­n, the result has been an increase in illegal cigarette sales, violence between persons selling illicit cigarettes, and more negative interactio­ns between police and citizens as they respond to investigat­e and address criminal activity associ

ated with illegal cigarette sales.

Additional­ly, such legislatio­n creates an opportunit­y for pretextual stops because it will now be possible to stop a citizen to determine what type of cigarette they are smoking and inquire where they purchased it. Pretextual stops are frequently used to further other investigat­ions, and they have been proven to disproport­ionately impact Black and Hispanic people.

Pretextual stops involving tobacco between unarmed Black men and police have continued to occur in New York and around the nation. Here in New York, Eric Garner is a prime example of a pretextual

stop gone awry, which tragically resulted in his death. These are not isolated incidents but examples of the challenges facing policing in America.

Speaking on behalf of myself and other current and retired members of law enforcemen­t across the country, I strongly encourage Gov. Kathy Hochul to choose a different path. A more just and more meaningful solution would be to expand anti-smoking education, prevention, and cessation resources.

Our lawmakers have an opportunit­y to reconsider a prohibitio­n of flavored tobacco products that will only increase New York’s thriving illegal marketplac­e and further exacerbate the division and distrust that exists between our communitie­s — especially our communitie­s of color — and policing in America.

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