Tuesday, March 12, 2013

New, lesser marijuana offense would reduce strain on local budgets

At the Texas House Criminal Jurisprudence Committee this morning , Rep. Harold Dutton has a bill up, HB 184, that would significantly reduce county indigent defense costs and prevent law enforcement from diverting limited local police resources from more important duties by carving out possession of an ounce or less of marijuana and making it a Class C misdemeanor. Presently, possession of up to two ounces is a Class B misdemeanor and if the bill passes, possession of one to two ounces would still fall under the higher penalty category. But possession of a lesser amount would become a fine-only offense. According to the Department of Public Safety, there were 69,770 arrests for marijuana possession in 2011 (the last year for which data is available), up from 57,172 in 2003.

Counties must pay for lawyers when an indigent person is charged with a Class B misdemeanor but Class Cs - because the defendant is not at risk of a jail sentence - do not entitle the defendant to a county paid attorney. Since nearly 60% of drug possession arrests in this state are of pot smokers - and most are not for large amounts - this legislation would reduce indigent defense and county jail costs for people caught with user-level quantities of pot while still maintaining the drug's criminal status. And of course, Class C offenders pay fines, contributing income to county coffers, while offenders sent to jail cost taxpayers money.

From a fiscal perspective, Dutton's bill makes loads of sense. But perhaps, for a change, this year it may make political sense, too. In 2005 under leadership of then-Chairman Terry Keel, this same committee approved a similar bill unanimously, with several Republicans including Keel and Rep. Debbie Riddle voting for the measure. But then-Speaker Tom Craddick would not allow the bill to go to a floor vote, ostensibly to "protect" the members from voters like this guy. With a different Speaker and a fresh, new committee - plus public opinion on the subject changing dramatically - it's a good time to take another serious run at the proposal.

Rep. Dutton has modified the legislation from the version that passed out of the House Criminal Jurisprudence Committee back in 2005, which would have simply reduced the penalty category for up to two ounces to a Class C misdemeanor. This bill carves out a new, lesser offense category for possession of smaller amounts, though penalties would increase for someone repeatedly caught with the drug.

This bill pales in comparison to developments in Colorado and Washington state, where legalize, tax and regulate laws were approved by voters in the November election. All pot possession under Dutton's bill would remain a criminal offense. But the bill would afford more equitable punishment for the lowest-level offenders, provide tremendous relief to county indigent defense costs, lessen population pressure on county jails, and keep more police officers on the street, letting them focus on more serious offenses. Rep. Dutton has a reputation as a liberal, but in many ways HB 184 is a profoundly conservative bill.


Anonymous said...

Except in obvious situations, like where there's only 1 joint, how will arresting officers know whether to charge a person with a Class C or a Class B misdemeanor?
It's also too bad that the bill doesn't make mandatory the issuance of a citation to a Class C offender.

Anonymous said...

they weight it, to determine the quantity, ie weight..and the bill provides that anything less than 1 ounce can only be a class C, for which a citation and fine can only be issued.

Anonymous said...

I can see 9:52's point, and agree. As it is too few police agencies are refusing to use their cite and summons authority, this is fairly ripe for "I thought it was more" abuse.

But--this is a step in the right direction, taking as much discretion out of the hands of the local cops who can't see the forest for the trees.

Funny thing is, they always say they're there to enforce the law and thus have no discretion, but when that discretion is given to them they refuse to use it and when taken away from them they complain.


Anonymous said...

To 10:18:00,

I don't believe that officers are going to be issued scales to weigh the marijuana they take from persons they arrest. An arresting officer can't testify that a green leafy substance actually IS marijuana and without some proof of a scale's accuracy, I think a defense attorney could successfully attack an officer's testimony that the green leafy substance weighed more than 1 ounce.

Also, under Art. 14.06(b), C.C.P.,
issuance of a citation to a person popped for Class C POM would still be discretionary, not mandatory, and we all know how well that's working.

(b) A peace officer who is charging a person, including a child, with committing an offense that is a Class C misdemeanor, other than an offense under Section 49.02, Penal Code, may, instead of taking the person before a magistrate, issue a citation to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, the offense charged, and the following admonishment, in boldfaced or underlined type or in capital letters:"If you are convicted of a misdemeanor offense involving violence where you are or were a spouse, intimate partner, parent, or guardian of the victim or are or were involved in another, similar relationship with the victim, it may be unlawful for you to possess or purchase a firearm, including a handgun or long gun, or ammunition, pursuant to federal law under 18 U.S.C. Section 922(g)(9) or Section 46.04(b), Texas Penal Code. If you have any questions whether these laws make it illegal for you to possess or purchase a firearm, you should consult an attorney."

Gritsforbreakfast said...

Police can arrest for Class Cs but usually don't. IMO if this passed the number of pot arrests would decline precipitously. Also, IMO there would be relatively few cases where the amounts are truly borderline and an officer couldn't tell. Somebody with a few joints or a dime bag would obviously be a Class C, and that's probably the majority of such arrests.

Anonymous said...


C.C.P. Art. 14.06(a) appears to require a person arrested for a Class C misdemeanor to be taken into custody and thence to a magistrate.

Art. 14.06. MUST TAKE OFFENDER BEFORE MAGISTRATE. (a) Except as otherwise provided by this article, in each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall take the person arrested or have him taken without unnecessary delay, but not later than 48 hours after the person is arrested, before the magistrate who may have ordered the arrest, before some magistrate of the county where the arrest was made without an order, or, to provide more expeditiously to the person arrested the warnings described by Article 15.17 of this Code, before a magistrate in any other county of this state. The magistrate shall immediately perform the duties described in Article 15.17 of this Code.

I believe that in connection with most traffic offenses, C.C.P. Art. 14.06(a) is superceded by provisions of Transportation Code Chapter 543, Subchapter A, which requires issuance of a citation in most instances.

Having raised the issue, I hope that if the bill does become law, most Class C POM offenders will be cited and released as you predict.

Anonymous said...

Do you have any idea how much an actual ounce of pot really is? It's substantial. A joint is typically less than an 1/8th of an ounce. Loose hydroponic-type bud weighing approximately an ounce is bigger than your fist. Most officers don't find that much on a traffic stop. Having to ask for a scale on the side of the road would be the rare exception - not the routine.

- 8 yrs experience in police narcotic evidence

Anonymous said...

According to the Department of Public Safety, there were 69,770 arrests for marijuana possession in 2011 (the last year for which data is available), up from 57,172 in 2003.

Any data source available as to how many people were arrested for failing to appear on a Class C misdemeanor charges, both penal and traffic offenses?

Ima hold my opinion as to whether decreasing the weight amount will decrease jailings. We see enough C FTA's everyday that otherwise would lessen the county jail population if they were not jailed.

The only way to eliminate jailings for reefer possession is to legalize it!

Anonymous said...

As a peace officer in Houston I can tell you a majority of us wouldn't write a citation for it. And regardless what most on here think we don't all arrest for small amounts of weed. Most offenders I find have a half ounce or less. And other than being a crook who needs to be in jail or someone who talks their way into going to jail, most with that amount get let go. My personal outlook is 15 grams or more and you go. That or the crooks who are obviously selling weed. Like having multiple individually packaged baggies of weed.

Writing a citation world require me to take the weed and place it into evidence, thus taking me off the street for the same amount of time a full fledged arrest would take. I won't do it. And the other question raised is how many FTA warrants will be issued? And then here in Houston the judges give you time served on class c warrants when you get picked up, thus no fine is paid. And you still go to jail and cost the public money.

I come to work to find serious criminals who are out hurting people or stealing your's and mine hard worked for property. Sometimes a little bit of weed helps me put those people away for a few days. Do some cops arrest anyone for anything? Of course. But some of us are experienced enough to let the small fish go for the chance at the bigger catch.

Anonymous said...

It sounds like you are doing us all a service by protecting us and looking out for public safety; however, your actions illustrate the inequitable application of existing possession laws related to marijuana. Some police are allowing offenders to go free with no charge at less than 15 grams while others are fully booking them. Ideally, it should simply be the law that 15 grams doesn't get you in trouble, but it's worth noting that logically this bill doesn't take away your discretion to ignore the law which is what you and others are currently doing when you allow someone to walk away. Your actions highlight that many police realize that something is overly harsh and inconsistent with best practices about our penalties for possession, otherwise LEO's would arrest them everytime. Instead, I hear of more and more officers choosing to ignore small amounts of marijuana in Texas.

I've seen nothing that reasonably justifies the current penalties for one ounce or less of marijuana on the books. If police continue to arrest people for those smaller amounts, no one will stop them, that's true. However, that doesn't make the case for the status quo either since officers will still have this unspoken form of discretion to ignore what they perceive to be as unjust laws or laws which reduce their ability to protect the public.

Lastly, this concern with weight is overblown. Officers develop experience over time at to what quantities of different drugs appear to be. They already have to distinguish between felony amounts vs. misdemeanor. For decades in many other states, law enforcement have had laws similar to what is being proposed here. This is truly a non-issue and most would adapt just fine to the bill.

Anonymous said...

Grits says cops usually don't arrest for "Class C" for pot? You must be talking about larger cities where they have bigger crimes to go after. I live between six small cities population ranging from 6000 up to 20000. Everyone one of these cities arrest a person for a joint.

Gritsforbreakfast said...

2:02, right now the lowest level pot possession is a Class B. I said police don't arrest for Class Cs generally (except for public intoxication), and it's generally true.

And fyi, I deleted a comment here calling for shooting police officers and will continue to do so. Take that BS somewhere else, it's not tolerated here.

Anonymous said...

From September 2, 2011 to August 31,2012, there were 395,111 Class C arrest warrants and 84,853 capias pro fine warrants issued by Texas justice of the peace courts.

There counterparts over on the municipal side were a little busier as they issued 1,660,732 Class C warrants and 624,322 capias pro fine warrants. That's right!

Making the weed amount as suggested will not decrease jailings.

Source: Texas Office of Court Adminsitration

bob said...

Can you say checkma8te......marijuana has been a medicine for thousands of years and illogically illegal for a few months over 70 years. Now that the existence of the'endo-cannabanoid system in humans has been exposed you can bet your next paycheck that you too will be returning that bag of weed to said subject. I grew up in a small texas town and got the hell out because i watched my friends get swept up and away to fill your booming prison complex. Now when i read the newspaper from my old hometown papef i still see those same friends filling the couffefs of the most extravagant building in town........THE JUSTICE CENTER. it sucks as a human to see this and most of you know from your experiences. Pot smokers arent usully criminals........were just great prisoners.

Weve nevef lost a single vote and never backtracked a step. Were gonna win then we'll rub it in.

Don't believe me....read this


Gritsforbreakfast said...

So, 7:10, what you're saying is that, of Class C tickets, 37% in municipal courts later resulted in capias warrants. That means 63% did not.

By contrast, in most jurisdictions 100% of class B offenses result in arrest. Reduce that by 2/3 and contrary to your claim, that would indeed reduce jailing for pot.

Anonymous said...

There's already a provision very rarely used for cite and release for a B possession. Just what makes you think C's will be cited rather than going to jail?

Anonymous said...

TCCP 481.121 Posession of Marijauna is a Class B Misdemeaner less than 2 ounces
And a Class A 2 to 4 ounces
Class B Misdemeanor is Jail Time not to exceed 180 days and Class A up to a year in jail. A municipal court is FINE Only / No Jail time, So if a MC or JP court put anyone in jail YOU Have a suit. If they filed a search warrent for a POM / Class B or A You have case action against them for No Jurisdiction. We be doing a Class Action Now ...