Friday, January 03, 2020

Texas' natural experiment on marijuana shows decriminalization brings relief to an over-strained system

The number of marijuana arrests in Texas has plummeted since June, when the state legalized "hemp" and, as a result, accidentally erected new barriers to prosecuting marijuana cases, de facto decriminalizing pot in some jurisdictions. At the time the law passed, Texas crime labs had no way to distinguish between legal hemp and illegal marijuana.

The result, reported Jolie McCullough at the Texas Tribune: The number of new marijuana cases filed by prosecutors plummeted by two thirds, from an average of 5,900 per month last year to 1,919 in November.

Think about that: Thanks to this happy accident, nearly 4,000 fewer people per month will be prosecuted. Less widely discussed: Texas crime labs will receive nearly 4,000 fewer marijuana samples per month for testing. That's roughly 48,000 fewer per year.

This reduction in volume comes at a time when Texas crime labs, especially at the Texas Department of Public Safety, face extreme backlogs, with the biggest backlogs by far in testing seized drugs and DNA evidence.

Last year, state Rep. Terry Canales voiced complaints about outlandish wait times for DPS to test evidence in the Rio Grande Valley, complaining that in many cases it takes years to test the evidence.

If justice delayed is justice denied, it's surely being denied in cases where crime labs require years to test evidence. Imagine you're a defendant awaiting trial who can't make bail. Who wouldn't accept a plea deal for anything other than a long prison sentence? Certainly for the 4,000 people per month who would have otherwise received a misdemeanor marijuana charge, there's an enormous incentive to plea rather than wait months or years for lab results to come back. 

Given the state of crime lab delays, Grits would argue it would be irresponsible to ramp up the number of user-level marijuana cases to past levels because it soaks up so many resources the crime labs need for more serious crimes. (There are other reforms needed to solve crime-lab backlogs, but if they're not going to embrace them, policy makers should embrace every opportunity they have to reduce the volume of crime-lab submissions.)

In addition, to the extent that a significant proportion of those 4,000 pot cases would have been people deemed indigent and entitled to have the county appoint them a lawyer, this happy development has reduced local indigent defense costs at a time when caseloads remain high despite dropping crime.

Prosecutors in Harris County and elsewhere have lately complained of high caseloads. Well, reducing misdemeanor caseloads by nearly 50K per year statewide surely helps with that problem.

In addition, since marijuana possession is a Class B misdemeanor, most of those 4,000 people per month would have been booked into the county jail upon arrest. (A few jurisdictions take advantage of police authority to cite pot possessors instead of arrest them, but overall, not many.) Local jail costs average around $60 per day, but that's somewhat misleading. Most people arrested for pot get out in a relative short time. However, the first day is more expensive because jail-intake processes require medical and mental health assessments, pretrial services questionnaires, immigration checks, DNA swabs, etc.. Estimates I've seen put first-day costs closer to $150-$200 than $60.

So reducing the number of marijuana prosecutions - and hopefully, also arrests - translates to significant, welcome relief for an over-strained system across many vectors.

This impromptu natural experiment has demonstrated that marijuana can be decriminalized in Texas with no noticeable detriment to the public weal. Certainly there's no evidence public safety has been harmed in the least by this radical reduction in pot prosecutions. Meanwhile, nearly 4,000 fewer people per month are subjected to the expense and indignities of arrest for a "crime" most Texans fundamentally do not believe should be one.

Grits would be interested in two datapoints that weren't covered in Jolie's story. On the first - which prosecutors are still pursuing marijuana cases - we got anecdotal info:
Without public lab testing available, some police agencies turned to private labs — but at a cost. In North Texas, Frisco and Plano police said last month that they continue to pursue all suspected marijuana offenses, submitting cases to private labs for testing. The Collin County district attorney now requires lab results for misdemeanor cases, according to Gail Leyko, the Plano Police Department’s legal adviser. She said all marijuana cases are still being prosecuted, but it costs the city hundreds of dollars more per test to go through private labs that can determine THC concentration.
Grits couldn't figure out how to query OCA data to identify which prosecutors are still pursuing pot cases, but I'd sure like to know. In an era when more prosecutors than ever are being successfully challenged at the polls, that's information voters could use to judge the wisdom with which prosecutorial discretion is exercised.

My second question about this news: Jolie is counting how many marijuana charges were brought by prosecutors. That's a different number from "how many people were arrested for marijuana?" Those arrest data aren't publicly available yet, but I wonder if folks are still being arrested and taken to jail over alleged marijuana possession in greater numbers than we see here, only to have prosecutors dismiss or refuse to file charges? 

Grits considers this welcome news, but there's still a lot we don't know: Who is still being arrested, and by whom? Who is still being prosecuted, and by whom? Who is being arrested but not prosecuted and what happens to them? ¿Quien sabe?

Finally, the question arises, how should the Texas Legislature respond to this from a policy perspective? Governor Abbott has made it clear we'll see no special session on the matter, so Grits would expect to see these low arrest numbers continue, or even drop further, in the near future, perhaps upticking later in the year as a few jurisdictions purchase the expensive equipment needed to distinguish "hemp" from "marijuana" (which, of course, are the exact same plant).

So by the time the Legislature convenes, we'll have been through 18 months of radically reduced marijuana enforcement, approaching zero in some jurisdictions, including some of the larger ones. If all the Chicken-Little Drug-Warrior proclamations turn out to be BS and the sky hasn't fallen, the 87th Legislature would be a perfect opportunity to shift pot penalties to either a civil penalty - as the GOP platform suggests - or a Class C misdemeanor, as Gov. Abbott has endorsed.

To be clear: Personally, I'm one of the 61 percent of Texans who would legalize pot tomorrow; this summer I witnessed the Canadian model first-hand and considered it a brilliant success. But Grits doesn't anticipate Texas' statewide leadership in 2021 will be ready to go that far.

Even so, it would be a mistake to go back to the bad old days of 6,000 pot prosecutions per month. Ramping marijuana prosecutions back up would put undue pressure on crime labs, boost counties' indigent defense costs, exacerbate high prosecutor caseloads, and incur unnecessary county jail expenses. Local officials should continue deprioritizing marijuana cases and, when they meet in 2021, the Legislature should simply take arrests off the table for such offenses altogether.

RELATED: From the SA Express News, DPS state troopers have inconsistent policies related to people for pot possession, arresting them in some counties and issuing citations in others.

CORRECTION/CLARIFICATION: This post has been edited to correct a mistake I made interpreting data on crime lab backlogs. The post originally estimated backlogs of 2.5 years for drugs and 3.5 years for DNA. But I had mistaken the number of backlogged cases for wait times in days. That said, the underlying news story from which the crime-lab backlog chart was drawn quoted the Texas House Transportation Committee Chairman Terry Canales declaring that, "Defendants are frequently and unnecessarily spending years in jail waiting for forensic evidence to be processed so that they can have their day in court." So the overarching point about crime lab backlogs remains valid.


Gadfly said...

From the field, I can tell you that the Cooke County Attorney this summer said he'd remain hard-nosed on pot cases.

Steven Michael Seys said...

Pot, like booze, should be left to the discretion of the user, and the only thing that ought to be punished is bad behavior while under the influence. I don't smoke it nor do I get drunk, but if someone else wants to chemically alter his or her brain, by all means let them. It their brain.

Unknown said...

The Montgomery County DA still prosecutes all marijuana cases, though the wait for test results has added at least 3-4 months to the timeline.

Anonymous said...

>In drug cases, it can take nearly 2.5 years for lab technicians to get around to testing the evidence. For DNA cases, which are more likely to involve violent crimes, fwiw, it takes on average 3.5 years to test the evidence.

Upon reading this my mind screamed out that this must be an error. 3.5 years on average to test DNA evidence? My reaction is that this just can't possibly be true. I know that the system is broken, but really this bad? And the drug war fanatics are so ideologically invested in their crusade that they're willing to put aside investigating real crimes in order to prosecute our fellow Texans for possession of an illegal flower?

Gritsforbreakfast said...

@9:24, upon seeing your comment, I revisited the underlying number and realized I'd conflated two data points, misinterpreting a couple of lines from the linked story. I've corrected it in the text and will add a clarification at the end of the post explaining the change. That DNA cases take "years" to process was correct, but 3.5 is not. I made an error reading the data. Thanks for calling me on it.

Gunny Thompson said...

From Unfiltered Minds Of Independent Thinkers of the 3rd Grade Dropout Section:

When reviewing DAs pattern of prosecuting low-level drug offenses, it would be an interesting assessment of those DAs that receive contributions from police unions compared to those that doesn't accept similar contributions.
Just Saying!!!

Amber Vazquez said...

In Austin, police are still arresting for pot, mainly because they use the “odor or marijuana” to search without a warrant and circumvent the 4th Amendment. Even though the prosecutors are not even filing most of the pot cases and/or dismissing them. This is also a result of allowing police agencies to direct file cases without a lawyer reviewing it, which has been the unfortunate practice here in Austin for years. It seems that the push from law enforcement has a lot more to do with the access to searches (mainly of people of color) that marijuana provides, as opposed to generally being anti-marijuana.

Wolf said...

One day Texas lawmakers will act according to their belief in freedom and finally legalize pot. Until then we taxpayers will be saddled with the unnecessary burden of subsidizing prosecution of this moralistic criminalization of private behavior. Once we more fully enter this century, we can follow the example of the State of Illinois.....and spend scarce resources on behavior that actually harms others or their property...........

M. D. Cohen said...

Excellent point! That would be extremely interesting! It would be also quite amusing, given the vast number of counties in this state! Such an assessment would give me data to pore over for days!

M. D. Cohen said...

Hearing one cop tell his partner, "Be sure to get consent!",
as they searched a vehicle in which I was a backseat passenger, belonging to a couple that I befriended back in 2007. The couple was biracial, but I don't think that anything to do with the stop, other than the fact that the description of the couple they were actually looking for vaguely matched the description of my friends.
They were mistaken for a couple who had been part of, and also were assumed to occasionally be the leader of, an organized retail theft ring.
The officer told me personally afterwards, why the female, who was the one driving what was her car, was being arrested for a suspended license, and no liability insurance or proof of financial responsibility.
I was not detained nor was I questioned, so I asked the fairly young, [early 30's (about my age at the time)], HPD officer why he was arresting my friend, since:
A. He and his partner didn't find the stolen merchandise (in my friends possession, or at all!) they were lookong for,
B. Her license was only suspended after expiration, due to her status as a Katrina Evacuee. (Note: it is 2007 here, so fail to mentioin her profound laziness and irresponsibility, I can not)

My approximation of his response to my query is as follows:

"Well, we needed to search the vehicle, so if we ask for consent, and you say yes, and subsequently, we are closing in on a sensitive area to you, in the vehicle, and you don't like it, or you remember something is there you aren't supposed to have that you forgot about, or whatever, and you say 'Stop, don't search/touch that!', Then we have to stop and wait for a search warrant, or just forgo searching that part of your vehicle/belongings. So, since we arrested the driver, ad it's her car, we now have [full, (irrevocable)] consent. (The officer did not use the two preceding words in parentheses, neither the polysyllabic word, nor the monosyllabic word immediately preceding it), to search the vehicle.
So, we have to arrest her, otherwise she could come back and say she never gave us consent to search the vehicle."

I told him, she won't ever do that, because they didn't find anything in the car, so what does she care?

The young, White, (quite kind in conversation and demeanor), HPD officer, informed me , (in wording that I have done my best to reconstruct, I simply can not recall them exactly only 13 years later), that since they used her arrest for consent, they had to take her in. She would probably be out in a day or two.

That kind of crap happens all the time to minorities, and I had never witnessed, such a thing occurring... Not could I even imagine such after the early 1970's (1990's in Texas, 2000's in South Louisiana, and 2015-present in North Louisiana)

Anonymous said...

The DPS inconsistency may be due, in part, to local Sheriffs. In Brewster County (Alpine), for example, DPS does cite and release because the Sheriff will not allow marijuana detainees to be booked into the local jail. DPS has no other option but to cite and release.

Anonymous said...

Amber Vazquez, most police agencies in Texas have a direct filing system for charges other than a few large counties which have set up a DA intake to filter the quality of such charges. Despite some occasional friction such as that between HPD and Harris County's current DA office, none of the police unions have spent any real political capital trying to move back to direct filing in those large counties. I suspect you are correct that some oppose legalization more out of a desire to retain the legal ability to search for drugs than out of any specific opposition to drugs themselves. As long as pot is illegal, related searches are allowed even if the county or agency is not going to pursue charges for the drug.

Shellie Swank said...

"But Grits doesn't anticipate Texas' statewide leadership in 2021 will be ready to go that far."

I concur, to a point. It isn't ALL the leadership. The biggest hold up to cannabis reform in Texas is Dan Patrick. Dan Patrick wouldn't allow it. He would kill any bill that proposes decriminalization, and probably even medical MJ beyond CBD. Recreational/adult use would be out of the question completely. As long as Patrick remains as Lieutenant Governor, and therefore the "President of the Senate" and gatekeeper of what gets through and into the hands of the senators for committee referral and vote... I can about guarantee you that leadership won't get that far, period. Patrick isn't up for re-election until 2022 when the next gubernatorial election takes place. Considering that Abbott is in his second term, and will likely run for a third, I don't see anything changing in 2023, either, if Abbott is re-elected. Next election after that is in 2026, and the first Legislative session after the election would be in spring of 2027.

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