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.