DAs prudent on pot
Lawmakers should use the mess hemp bill created as a step toward marijuana reform.
District attorneys in some of the state’s most populous counties, including Harris County District Attorney Kim Ogg, have stopped prosecuting misdemeanor marijuana cases. Not because of much-needed, common-sense criminal justice reform or any new regulation, but thanks to the old law of unintended consequences.
The Legislature was on its way last session to loosening marijuana laws — bringing Texas in line with many other states and with shifting public opinion. Although the House voted overwhelmingly to reduce the penalties for possession of small amounts of pot, the effort was stopped cold in the Senate by Lt. Gov. Dan Patrick.
But another bill, which legalized hemp — a product that comes from the same plant as marijuana — has led to de facto decriminalization. Language in the law differentiates between pot and hemp based on the presence of THC, the psychoactive ingredient that produces the drug’s “high.” Anything with more than 0.3 percent of THC is considered marijuana, anything below is newly legal hemp.
That change means the simple tests used to determine if something was pot can no longer be used effectively, since they only reveal if something contains cannabinoids — not its THC content. For that, more expensive tests are needed. What used to take minutes would now involve developing new procedures and would take hours. If edibles are involved, labs must purchase equipment that costs hundreds of thousands of dollars to make an accurate determination, experts said.
Many district attorneys have reacted responsibly to the Legislature’s failure of foresight, choosing to forgo prosecuting small-time marijuana possession rather than taxing already limited resources. This is smart policy and builds upon already existing efforts to divert low-level marijuana users from jail and into other programs. Diversion in Harris County, which began under Ogg in 2017, allows anyone caught with less than 4 ounces of marijuana to take a four-hour education class and avoid an arrest, ticket or court appearance. Ogg credited the diversion program with 14,000 fewer arrests in its first two years and for county savings of $35 million.
Although most misdemeanor cases in Harris County already qualified for diversion, policy still allowed for charges to be filed before a lab test was finalized, based on the arresting officer’s experience. Because of the hemp law redefining what qualifies as pot, the DA will no longer accept charges unless there is a conclusive lab report.
Still, the state is one of the nationwide leaders in marijuana arrests. From 2015 to 2017, Department of Public Safety data shows almost 190,000 people were arrested for possession, filling jails, costing taxpayers millions and leaving thousands of Texans with criminal records that can keep them from getting a job or suitable housing. All over something that is currently legal for adult recreational use in almost a dozen states and for medical purposes in 20 others, including Texas. These arrests also tend to punish persons of color, especially black people. While blacks and whites use marijuana at similar rates, black users in Texas are twice as likely to be arrested for possession.
Instead of admitting their mistake, state officials have so far responded by pressuring district attorneys to continue to pursue these cases. “Marijuana has not been decriminalized in Texas, and these actions demonstrate a misunderstanding of how H.B. 1325 works,” said a letter sent out last week and signed by Gov. Greg Abbott, Attorney General Ken Paxton, House Speaker Dennis Bonnen and Lt. Gov. Patrick.
Their feeble defense completely misses the point, arguing that anyone who claims to transport hemp must have a certificate (which the state hasn’t created yet) The letter also argued that if anything, prosecutors have “more tools now, not less” because they can prosecute for failure to have that permit.
But the reality is messier than the governor and other state leaders seem to grasp. Labs aren’t testing something known to be hemp and submitted as such, Dr. Peter Stout, head of the Houston Forensic Science Center, told the editorial board. “I am testing goo from a sock,” he said.
To follow the governor’s lead would be folly, he added.
“If I do what they’re saying, there
will be cases that are misidentified and two years later, when that comes out, the laboratories will be back auditing everything they’ve done; retesting everything they’ve done.”
District attorneys should stand firm in their decision. If the state wants to fix this, lawmakers must be willing to change the language of the legislation, devote the resources needed and invest in new lab equipment or subsidize the cost to municipalities for adequate testing. All of that is highly unlikely — and unnecessary.
Texas should take this as an opportunity to reexamine the effects of the state’s marijuana laws and refocus on diversion efforts that don’t upend lives with pointless drug convictions. Call it Texas’ accidental decriminalization pilot program.
In two years, when the Legislature reconvenes and the sky hasn’t fallen over dropped pot possession charges, our hope is lawmakers will make the right choice and give Texas the fair and sensible marijuana reform it deserves.