Saturday, July 11, 2020

Great Texas Hemp Hiatus combines with COVID to reveal a dirty little secret about pot prosecutions: Nobody cares if you don't make them

Politics is unpredictable and a big part of success stems from one's ability to capitalize on unexpected advantages when they arise. This requires recognizing them in real time as they occur.

Grits submits that, when it comes to marijuana policy, the passage of Texas' law legalizing "hemp" in 2019 was a game changing alteration to the Texas criminal-justice landscape; like inserting a knuckleballer 8th-inning relief pitcher who then strikes out the side. It's still a tight, close game, but suddenly, there's hope.

Readers will recall that Texas 2019 hemp law included a weird, happy accident: Legislators were told in committee that the testing to distinguish hemp wasn't available at most crime labs, but they either (more likely) didn't understand or simply didn't care (which is sort of the same thing in that job: they didn't care enough to inquire). Regardless, when the law took effect, it required prosecutors prove the THC content in marijuana seized was above a certain level. No public labs and few private ones were set up to do it.

Elected prosecutors responded in more or less bipartisan agreement (with a few outliers on both sides): By dismissing charges for low-level pot possession cases, by the thousands. Early on, the Texas Tribune estimated arrest volume for pot possession statewide had dropped by nearly 2/3. In the wake of COVID, it's surely dipped much lower than that.

COVID gave judges across the state an incentive to scrub their dockets with an eye toward releasing everyone who could be released, and pot smokers definitely fall into the low-public-safety-risk category. So judges didn't want to see these cases, prosecutors had means to dismiss them, and if police wanted to keep arresting on these charges, the cases would go nowhere.

That's the dynamic underlying Austin PD's weird recent announcement that it finally would follow guidance given to it by the City Council last year and stop making arrests for marijuana cases that couldn't be prosecuted. Two things: First, the department should have altered their policy as soon as they were told and maybe the council wouldn't be as ready to oust the chief. Second, the County Attorney had said he wouldn't prosecute without testing; the City Council had declared no city money could be spent on testing; so Manley really had no choice. Honestly, it's bizarre and concerning that APD continued to make arrests as long as they did.

There has been much grumbling, weeping, and gnashing of teeth, but this dynamic, with the same result, has repeated itself across the state in big departments and small. Even 30+-year police vets like Chief Manley eventually have had to come to grips with the new "can't be prosecuted" reality for low-level pot possession cases. And as this new reality takes hold, there's a dirty little secret that's being whispered in the corners and the back rooms in courthouses, police stations, and city-council chambers around the state:

The sky didn't fall!

Let the record show: When Texas, for all intents and purposes, stopped prosecuting low-level marijuana possession cases beginning fall 2019, the result was a big nothing burger. It was better for the 40-60,000 people per year who won't catch charges (40,000 would be if prosecution rates were down only 2/3, but Grits suspects, after COVID adjustments, it's now much lower than that).

Otherwise, police were focused on other duties, jails avoided extra prisoners during COVID, court case loads were reduced, taxpayer-funded hemp testing was (largely) avoided. Tens of thousands of Texans avoided a criminal record. Commercial hemp was legally harvested and sold. And nobody cared. Not really. There has been no hue and cry. If anything, the hue and cry favors pot legalization.

What problems has it created to stop prosecuting pot cases, even though marijuana prohibition technically is still on the books? Grits struggles to think of anything, and I've seen none of the usual suspects complaining about a resulting crime wave, etc.. How about you, Grits readers? Many of you have an up-close-and-personal relationship with the system: What problems were created by declining pot prosecutions? What benefits have you seen?

Virtually all conversations I've had with stakeholders on the topic emphasized the practical benefits of what Grits is calling the Great Texas Hemp Hiatus: The change reduced caseloads across the board for an over-burdened system that still has plenty of more important things with which to occupy itself. This bizarre reality, part of the stew of COVID-era "new normal" to which we all must grow accustomed, may revive prospects marijuana-related legislation in Texas that Grits thought couldn't pass in the near term.

After the 2019 session, it was clear Lt. Gov. Dan Patrick and probably also Gov. Greg Abbott simply would not support "decriminalization" policies and would actively oppose legalization schemes. There appeared to be no viable path forward. Now, both those men have presided over a period when pot prosecutions plummeted in Texas, and the public basically yawned in reaction. 

In an extremely tight budget session, what is more likely? That state leaders will fork over money so DPS has capacity to test everyone's bag of weed when the cops pick them up? Or that they'll acquiesce in the status quo and either leave the dysfunctional statutes in place or formally decriminalize marijuana? I'm simply not hearing anyone who has a problem with Texas' new normal on pot. Who would spend money in a red-ink budget year to re-start up prosecutions?

Again, the sky didn't fall. If you want to know what Texas would look like if it stopped prosecuting for low-level pot possession, look out your window.

In the wake of the courts' COVID slowdown, much less the Great Texas Hemp Hiatus, plus the energized focus on criminal-justice reform in the wake of the George Floyd protests, it feels like the politics underlying marijuana in Texas has shifted underneath our feet.

The Hemp Hiatus provided an unexpected opportunity for Texas politicians to get comfortable with the idea of simply not prosecuting marijuana possession. Now that they're used to a new normal, how many will want to go back?


Gadfly said...

That said, this ain't true everywhere. Pre-COVID, but last fall, Cooke County's county attorney said he was still gonna hang em high on pot. Said so in commissioners court, when specifically asked by a commissioner referencing Metromess counties. COVID may have put even winger CAs like him on pot hiatus, but, I suspect when we get past COVID, at least for public show and hoping small county defendants don't have the lawyers to challenge him, he'll be back.

Gritsforbreakfast said...

Brian Manley said the same thing. But unless somebody is footing the bill for testing, the cases can't make no matter what cops and politicians say.

Steven Michael Seys said...

Truth be told, the Texas attitude toward pot is what's driving the black market on pot. If Texas legalized pot outright and put both a tax and quality controls on it, there would be far fewer cases of people poisoned by bad pot and a revenue stream that doesn't rely on false charges against misdemeanants who may or may not have pockets deep enough to pay their way out of the hole they fall into in cash strapped Texas counties.

Anon said...

Once the camel got its nose under the tent, it's goodbye drug war. Lt. Gov. Dan Patrick is a Japanese soldier stuck on an island fighting a war that is as good as lost.

Tax revenues are down, so the revenuers are looking for untapped sources to levy. Hello, weed.

Megan M. said...

Anon 7/13/2020 03:13:00 PM: As Lt. Governor, Patrick controls the Senate, and the bills that can see the light of day and a vote. As long as he's Lt. Go, he will always have the power to kill any legalization or decriminalization attempt simply by not allowing the bills to hit the floor for that first vote or get to a committee. He may be a lone soldier armed with only a fly swatter, but what a fly swatter it is.