Saturday, June 07, 2014

Speculating on Texas' pot policy timeline

The Baker Institute Blog at the Houston Chronicle recently posed the question "When will marijuana be legalized in Texas?" - IMO a bit of a presumptuous query but one optimistically explored in a link-rich post. Rob Kampia of the Marijuana Policy Project thinks Texas may legalize pot by 2019. Mark Jones of the Baker Institute thinks outright legalization couldn't happen until at least 2023. I agree more with Jones on the timeline, but not necessarily his reasoning.

Jones starts out okay, rightly observing that the two states which have moved to a legalize, tax and regulate model are both places where citizens can propose statutes on the ballot via referenda. We don't have that in Texas (thank heavens!). Whatever laws pass must win approval from both chambers of the Texas Legislature and a new sitting governor. As such, if it ever occurs, Texas' version of "legalization" will happen in stages over multiple sessions, not all at once as it might after a ballot initiative. Jones views the matter through a purely partisan lens, concluding:
In Texas, the legalization of the sale and consumption of marijuana would require the passage of a law. At least until January 2023, and quite possibly even after that date, Republicans will possess a majority of the seats in the Texas House and Senate. And for these Republican legislators, a vote in favor of drug legalization would have a negative impact on their probability of winning in the GOP primary. Finally, if and when Democrats return to majority status in the Texas Legislature, we should not expect the Democratic delegation to be unanimously in favor of marijuana legalization, at least not in the short to medium term. In sum, similar to Texans who today want to legally play the slots, blackjack or craps, Texans who want to smoke pot legally will, at least for the next dozen years or so, need to travel to another state or country to do so.
Where Jones' analysis goes south is his odd assumption that "legalization" or other drug-policy reform couldn't happen while Texas is run by Republicans. He thinks 2023 will be the first gubernatorial race Texas Democrats can win but cautions that pot legalization won't be high on their priority list. But that reading ignores divisions within the GOP that play out along the pro-free market, less-government, "Right on Crime" axis touted by the Texas Public Policy Foundation. There are Republicans in the Texas Legislature who are perfectly comfortable suggesting the state reduce criminal justice costs by reducing the number of things we criminalize.

Jones doesn't appear fully aware how much criminal-justice reform legislation has passed since the GOP first came to power in Texas. Heck, often advocates themselves have been surprised, both by reforms that inexplicably had legs and more modest proposals that seemingly couldn't buy a break. Any Bayesian prediction of the odds must be moderated by the rodeo truism: There's never been a horse that can't be rode, never been a cowboy can't be throwed. A fractured, ultra-conservative GOP presents opportunities for peeling off factions, much like when Democrats controlled Texas as a one-party state a generation or two ago.

Grits believes framing the debate in terms of "legalization" does a disservice to the much-more moderate proposals likely to actually make it out of committee in 2015. In the near term, the issue isn't so much "will Texas legalize" but "will Texas reduce penalties for low-level pot possession?" Right now, possession of less than two ounces of marijuana is a Class B misdemeanor in Texas, meaning in theory the defendant faces a threat of up to six months in the county jail. Because the defendant's liberty is at risk, the county must pay for an attorney if they're indigent. Changing low-level pot possession to a Class C fine-only offense - or, some have suggested, a non-criminal "civil" citation akin to those given out by red-light cameras - would move low-level non-violent offenders out of the jail, save counties money on lawyers, and possibly even generate a new stream of fine revenue from future ticket writing.

There are probably 76+ votes in the Texas House of Representatives right now for making possession of less than 2 ounces of pot a Class C, ticket-only offense. In fact, that's been true for several sessions. In the past, though, House leadership, both under Speakers Tom Craddick and Joe Straus, have been loathe to allow members to take a floor vote. Somehow get the measure out of the Calendars Committee and before the members and I think Mr. Jones may be surprised that more than a few House Republicans would vote for penalty reduction.

It's possible the 21 votes needed to reduce pot penalties could be found in the Senate, too, but not at present to "legalize." Ironically, it'd be easier to get the penalty-reduction measure through the Senate if, say, a Lt. Governor Dan Patrick were to get rid of the 2/3 rule and require only 19 (out of 31) votes to get a floor vote, as he's sometimes discussed.

Texas would do well to get that far (reduce penalties to a Class C for less than 2 oz) by 2017 or '19; next year would be possible but optimistic. Whenever it happens, that would be a huge get. From there, to me it depends on what happens in Colorado and Washington. If it turns out to be no big deal and a new source of tax revenue we're just missing, legalization by 2023 is perhaps on the outer edge of possible. That's not because Democrats might be back in power by then but because the Lege will covet the money and public opinion is rapidly changing. On the other hand, if there's some horrible, unforeseen harm that befalls those states, that might push things back. Any prediction on such matters beyond a five year time horizon IMO is tantamount to fiction writing.

Texas could eventually alter its marijuana policies to the point where they could be dubbed "legalization," but only after a series of false starts, half-measures and incremental steps that will each take time to pass and implement. It's not uncommon for far less controversial legislation to take two or three sessions (4-6 years) or more to pass. And marijuana bills will not fly under the radar.

Bottom line, I agree with Jones' first three points but not his last two. It's definitely significant that Texas does not have initiative and referendum and must pass any new law through the legislative process. That means marijuana reform likely must pass in stages, not in one fell swoop. OTOH, that doesn't mean it's impossible under Republican rule, just that Republicans must be split on the issue. And lo and behold: They are.


Phelps said...

I've been having the same arguments on another site. Legalization can ONLY come through the GOP, the same way that Nixon was the only one who could go to china. No dem is going to risk being called soft on crime, ESPECIALY when they just narrowly won the state. The GOP isn't nearly as worried about the soft on crime claim. ("We aren't soft of crime, we even execute retards and innocent men! Hell, we don't mind executing an innocent retard every once in a while!").

The other reason the dems will never legalize is that while they claim to represent dopers, they really represent the unions -- the police unions, the penal unions, the various unions around the forced treatment and criminal justice system, etc. They stand far more to gain by farming the various public unions, money-wise, than they could ever get from mercurial dopers.

The dems get all the money from the dope war and the dopers still vote for them. Why would they ever end that? The GOP would come much further ahead by ending the drug war, crippling the police unions, saving the money, and taking away teh doper constituency to boot.

anolis said...

"We don't have that, thank heavens"

Since this country was founded on this ability, this is a good thing? It is a good thing for the people , the citizens, to have no actual way to change things themselves?

I'm not sure how this insane policy started but it is incredibly insulting to see the government have sooooo much control .. To the point the people that the control affects have no way to take it back...

Gritsforbreakfast said...

"Since this country was founded on this ability, this is a good thing?"

One notices there is no initiative and referendum power afforded to the people in the US Constitution, only a First Amendment right to petition the government. The founders advocated a small-r republican, representative form of government, not direct democracy. The founders thought legislation wasn't legitimate unless it had been vetted, amended, compromised, etc., though the legislative process. And citizens' recourse was not to propose the idea directly in a plebiscite but to vote for somebody who would do so.

I&R isn't a way for the people "to change things themselves." In big states they're expensive and driven largely by rich folks, labor unions, or self-interested corporations. (See California for ref.) It's just a terrible, incoherent way to run a state.

Sure, there are issues like marijuana regulation where I think Texans would vote for more aggressive proposals than the Lege currently would, but I'd rather not get it through I&R if it means every other idea from abortion, campaign finance, nativist immigrant bashing, Katy bar the door, also gets a crack. The California system is notorious and I've seen city-level referenda create much havoc. Better IMO to do it through the traditional legislative processes.

Anonymous said...

One unintended consequence of dropping POM 0-2 oz to a Class C misdemeanor would be a drastic reduction in the funding of probation departments. Anywhere from 20-30% of the misdemeanor caseloads are POM 0-2 oz cases. Class C cases are not eligible for supervision by CSCDs, so we will lose the associated state funding plus the monthly supervision fees paid by the offender (and supervision fees constitute 60-65% of our revenue). One of the little known secrets of probation is that misdemeanor offenders pay more reliably than do the felons, probably due to the fact that the sentences are shorter. That means that we depend on those misdemeanor cases to "pay some of the freight" for the supervision of felony offenders, because the same officers supervise both. So, reducing POM 0-2 oz to a Class C misdemeanor, while making sense, will cause a fiscal earthquake in the CSCD community, and we will lose staff and be less capable of offering counseling and education programs to the remaining offenders we supervise.

Gritsforbreakfast said...

@1:46: That's a good point, if perhaps overstated. After all, if caseloads go down 20-30 percent, you'll have fewer people to supervise. When you get a minute look at your own department's budget and caseload data and guesstimate the hit.

You have to admit, though, it's not much of an argument that the state should deny justice to one class of offenders (the 20-30% of your caseload you say are there for pot possession) because their probation fees were paying for services for other offenders. It's a consequence to be planned for and probation funding mechanisms need upgrading anyway: I'd like to see more performance-based grants and less reliance on user fees and per capita state funding.

I'll grant that probation department funding creates a lot of weird, counterproductive incentives when it comes to offender fees. It's probably true that you'd have to explain to the commissioners court why they shouldn't cut your budget when your caseload fell 20-30 percent.

And it gets worse for you: What if the same session the Lege were to reduce DWLI seconds (and beyond) to a Class C? There's serious talk of that to keep the Driver Responsibility Surcharge from filling up the jails with non-payers whose licenses were suspended. Those people must be just as numerous and equally reliable fee-payers as the pot possessors on your rolls, I'd guess.

Several possible solutions out of many come to mind: A) Convince the Legislature to restructure probation funding to shift away from a per-probationer fee. B) Convince the Lege or the local commissioners court to pony up more for local probation departments. Make your case. C) Lobby the local judiciary to create more specialty, "strong probation" treatment courts that have lower caseloads and require more intensive supervision by POs. Or, D) Cut your budget and make do.

Anonymous said...

Looking at those alternatives, I'd say D is most likely, B is least likely, A is needed the most, and C is dependent more on judges than probation departments.

I'd like to see more specialty caseloads (max. population of 50, and regular caseloads with 80-85 offenders (unlike the 135-140 we have now). Beware of performance based funding -- too many variables we have no control over (like irresponsible offenders, aggressive prosecutors with an affinity for prison/jail sentences, and defense attorneys who steer their clients away from probation, calling it too tough). Reportedly, one CSCD (years past), in an effort to reduce their technical revocation rate, simply stopped preparing motions to revoke on any cases except those which involved a new offense. Now, their revocation rates plummeted, but at what cost?

We don't need to fill up the jails with substance abusers, especially those who pose no threat to the public. The recreational stoner really gets nothing from probation, nor does the DWLI offender. Within the next year, we will all be using a new assessment instrument which will do a better job of culling the lower risk offenders from the herd, and identifying those who need more of our attention. Despite some of the blather from some who post here, the CSCDs really are focused on getting offenders to change their behaviors and successfully complete probation.

Chuckles Magee said...

I am confused...I have read several articles that say the US Govt could legalize it by 2020...does that not make the entire argument moot if the fed legalizes it?

My conclusion would be that the fed will legalize it before Texas ever does. I would say Texas is probably one of the last 5 states to legalize it because of 2 reasons: it requires a law to pass which means republicans who are against it can make it drag out as long as possible, and because its still a fairly conservative state.

If its one of the last 5 states and I believe the magic number is 40 (when 40 states legalize it or made it medically legal along with reputable studies coming out showing benefits) then my guess is the US govt legalizes it and boom its done. The state govt will want to jump all over any money it can see from it.