It’s time to improve Texas’ failed drug policy

On March 14, Marvin David Scott III died while in custody at the Collin County Jail. According to his family’s lawyer, Scott was having a mental health crisis at the time of the arrest. The details surrounding his arrest and death have not yet been released, but the Allen Police Department reported that Scott was first taken to a hospital, and when he was released, was arrested on marijuana charges, for possession of what apparently was a single joint. As a Black man, Scott was at a heightened risk for being arrested for marijuana possession and dying in law enforcement custody. Seven officers were fired on Thursday, but had Texas reduced the penalty for marijuana possession back in 2019, when the House of Representatives approved such a bill that Lt. Gov. Dan Patrick then blocked from Senate consideration, Scott might still be alive.

This tragic incident is but the latest example of the failures of Texas drug policy. The state stubbornly clings to prohibition and maintains harmful and ineffective penalties for other minor drug offenses.

Possession of up to 2 ounces of marijuana is a Class B misdemeanor punishable by up to 180 days in jail, a fine of $2,000 and a permanent criminal record. Possession of less than 1 gram of marijuana concentrates, such as edibles, is a state jail felony. The penalty includes up to two years of incarceration and a maximum fine of $10,000.

For drugs like heroin, methamphetamine and cocaine, possession of less than 1 gram — a small, personal use amount — is also a state jail felony. In fiscal year 2020 drug possession cases, for which possession of less than 1 gram is the most common, accounted for 30 percent of new felony cases filed, the single largest felony offense category.

The state jail felony system imposes lifetime burdens on individuals for minor drug possession. While any criminal record has collateral consequences, a felony conviction is especially detrimental to one’s employment and education prospects.

The pursuit of minor drug offenses has also done nothing to reduce drug use or stem the tide of overdoses. Fatal drug overdoses in the state are on the rise amid the pandemic. One barrier to reducing these deaths is that individuals who witness an overdose may hesitate to call 911 for fear of legal involvement, especially if they were also using drugs. Data from states with “Good Samaritan” legal protections for people who call 911 to report an overdose show that these laws can reduce overdose fatalities by up to 15 percent, with no adverse impact on public safety or drug use. Gov. Greg Abbott vetoed a Good Samaritan bill in 2015.

In the current session of the Texas Legislature, lawmakers can improve policy in all of these areas. Bills have been introduced to reduce the penalty of low-level drug possession from a felony to a misdemeanor (HB 1086 and HB 169), lower or remove criminal penalties for possession of marijuana flower and concentrates (HB 1609 and HB 3772), and remove penalties for possession of drug paraphernalia (HB 1178). Another bill (HB 1694) would protect people who call 911 to report an overdose, but its current wording decidedly needs changing. In an apparent effort to address Abbott’s concerns from 2015, it excludes people with prior drug convictions from legal protection. People with prior drug convictions are not “dangerous” but they may be more likely to experience addiction, witness an overdose and overdose themselves. The exclusion will create confusion about who the law protects; people will still hesitate to call 911 and the state will miss an opportunity to reduce overdose deaths and connect people with treatment services.

None of these proposals are radical. Oklahoma residents voted to reduce the penalty for drug possession from a felony to a misdemeanor in 2018. At least 40 states have Good Samaritan overdose prevention laws, most of which are far more inclusive than the bill up for consideration in the Texas Legislature.

Sixteen states, not counting those that have gone the route of full legalization, have made marijuana possession a fine-only offense, a reform that 77 percent of Texans support. The knowledge that marijuana decriminalization can be implemented safely enhances its urgency; even with the decline in prosecutions, nearly 30,000 Texans were charged with marijuana possession in FY 2020, an occurrence that is largely a function of one’s race, class, and, increasingly, geography.

In this session, Texas lawmakers have multiple opportunities to improve drug policy with reforms that are evidencebased and have broad public support. They should seize the moment.