No need for special session on marijuana potency, but if Governor Abbott calls one, he should greenlight broader pot debate

Grits has enjoyed the delicious irony of the Texas Legislature legalizing industrial hemp in such a way that criminal prosecutors now say they can't make their cases. But the growing calls for a special session over this issue should be quashed. There's really no need; worst-case scenarios aren't that bad, and there are easy fixes that don't involve new legislation.

The issue is that industrial-grade hemp with a THC content below .3% has now been legalized, first by the Trump Administration and then by the Texas Legislature. But Texas crime labs don't have the necessary equipment to delineate marijuana by THC levels. (A legislator told Grits these machines cost about $44,000 each. UPDATE: This was understated. According to the Houston Chronicle's Keri Blakinger, $44k was the cost for Ag-grade testing equipment; forensic-grade machines would run between $300k-$400k. AND MORE: Blakinger has now reported that the more expensive machines are needed for analyzing edibles, but not plant material.)

Here's the thing, though: this won't stop police from arresting people for marijuana (in jurisdictions that still do so). They only need probable cause for an arrest. Instead, the change would allow defense attorneys to challenge allegations later on by demanding the THC levels be proven. Most pot arrests already result in time-served pleas after just a few days, so nothing would really change except the lack of a criminal conviction.

Given that the Governor, who is the only one who can call a special session, wanted to remove pot smokers from county jails in the first place, he may decide just stand pat and allow this legislative error to accomplish what Lt. Gov. Dan Patrick would not allow.

To be clear, like Governor Abbott, I don't believe people should be arrested for low-level pot possession in the first place, much less charged with a Class B misdemeanor for it (max penalty: 6 months in jail and a $2,000 fine). So as far as I'm concerned, there's no crisis here that impacts public safety. Everything will be fine and the sky won't fall if nobody is prosecuted for pot possession over the next two years (a highly unlikely, worst-case scenario).

Does it put prosecutors in a tough spot? Sure. But they have an easy alternative: Just use their discretion to dismiss these cases.

Alternatively, if the Governor agrees it's a big problem to dismiss these cases, the situation can be resolved without a special session. If there were no other options, maybe the Governor's Criminal Justice Division could help pay for new equipment with grants. But in most cases, if District Attorneys are really worried about it, they could pay for the machines out of their asset forfeiture funds. Or they can just stop accepting charges in these cases, which would be easier, cheaper, and have no negative impact on public safety.

If the Governor wouldn't call a special session after Hurricane Harvey, the idea that we're going to do one to salvage petty pot prosecutions makes little sense.

If he DOES choose to call a special session on marijuana, though, Governor Abbott should frame the call in such a way that allows the Legislature to take up his proposal to reduce marijuana penalties. That suggestion was endorsed in the state GOP platform and polling shows majorities in both parties support the idea. That way, instead of calling attention to the failures of Texas government, a special session call could be framed as promoting something positive that's overwhelmingly supported by the public. That's the only way a special session makes sense.