Data: When Texas ↓ pot prosecutions, the system focused more on violent crime

Grits has been tracking what I've called "The Great Texas Hemp Hiatus," referring to the Texas Legislature's legalization of industrial "hemp," requiring a THC test to prosecute for marijuana possession. It was ostensibly a legislative accident, but it appears the change is going to stick: No legislation was filed to remove the testing requirement when the bill filing deadline passed on Friday.

From the Office of Court Administration's 2020 annual statistical report, here's how that impacted marijuana prosecution in Texas:

In 2018, by contrast, there were 87,618 misdemeanor drug cases in 2018. That's a 55% drop from before the new testing requirement was implemented.

Marijuana has been one of the most common charges Texans are arrested for in recent years. In 2020, though, more people were arrested for Class C misdemeanors at traffic stops (41,731) than were prosecuted for marijuana possession.

Polling consistently shows most Texans favor full-blown legalization of marijuana for recreational use, and an even greater number endorse more widespread legalization of medical cannabis. So for the average Texan, it's a big yawn. They wouldn't care if that 39,000 number dropped to zero.

For the system, though, it's a big deal. Drug arrests gave 80,000 cops across Texas at more than 2,000 agencies something to do when crime declined but cities kept hiring more of them. From the 2018 OCA Statistical Report:

In 2020, by contrast, drug cases' contribution to misdemeanor caseloads had dropped from first to third in the prosecutorial pecking order on the misdemeanor side, replaced after DWI by "assault."

So when police and prosecutors reduced emphasis on marijuana prosecution, the result was an increased focus on violent crime as a proportion of how they spend their time. This seems like an outcome most Texans would support.

Make Grits Philosopher King and Texas would legalize pot for recreational use, just as 14 other states have done, or at least decriminalize, as have another 16. In the scheme of things, marijuana is safer than alcohol by a country mile, and research on the substitution effects for everything from booze to opioids makes me wonder if its role as an agonist might reduce overdose and/or DWI deaths. But Greg Abbott and Dan Patrick have declared that option off the table. Until then, Grits supports narrowing the funnel facilitating criminal prosecutions for pot at every level. Texans are less safe, not more, when the government criminalizes markets this large with no public-safety imperative driving it.

Fort Worth police pull rug out from under Tarrant DA on no-pot-arrest policy

What the hell is happening in Fort Worth over marijuana enforcement? Today brings two contradictory news reports on the topic from Cowtown.

First, the Dallas News reported on Tarrant County District Attorney Sharen Wilson's new program, announced Monday, for Class B pot cases. Wilson is offering to dismiss charges if someone passes a drug test for three months running.

But seemingly in response to the prosecutor's announcement, yesterday evening the local NBC affiliate ran a story announcing that:

Fort Worth police are no longer arresting or citing people caught with small amounts of marijuana, a department spokesman said Monday.

“We have only been seizing the marijuana,” said Fort Worth police Capt. Mark Barthen. “We are also not issuing citations in lieu of arrest like some jurisdictions.”

The change in policy was due to “issues with testing,” Barthen said.

More people were arrested for pot in Fort Worth in the last year (3,750 people) than for any other charge. That's more than ten people per day. If the FWPD follows through on this policy, DA Wilson before too long won't have any more pot smokers to drug test.

These stories evince a split in local law enforcement, with the DA wanting to keep cases alive without proving them, while the police are less inclined to spend a lot of time on cases they can't prove that have little public safety benefit. I betcha Fort Worth isn't the only jurisdiction where officials disagree on how much to prioritize pot arrests, even if it doesn't often come out this publicly.

RELATED: Hemp law radically reduced pot prosecutions in Texas: Don't go back.

UPDATE (12/2): FWPD has now flip flopped and says they're still arresting people for pot, according to a reporter from KERA. Since the DA can't prove charges w/o testing, I wonder how that works? Do they only "divert" people who don't have a lawyer to advise them?

Confronting racism at Austin PD, ↓ TX solitary numbers may be an illusion, driver license suspensions not enhancing collections, Big-D bail reform collapses into confusion, and other stories

Here are a few odd and ends that merit Grits readers' attention:

Racial bias and disparities at Austin PD
A new report from the Austin Police Monitor's office demonstrated that black Austinites are disproportionately affected by police stops, searches, and arrests. The disparities are quite large, but Austin PD doesn't provide the data needed to drill down and discover particular officers engaging in discriminatory practices. The report comes in the wake of an assistant chief stepping down in December after a whistleblower revealed racist texts and emails sent to other departmental brass over many years. The city council ordered a review of internal officer communications in response that may reveal more racist officer communication, which has the police union mad as a wet hen. The Police Monitor's report provides a less personal, more systemic assessment of racism in the department, looking beyond individuals' points of view to the impact of departmental practices. Good for the Austin city council for taking this on.

Austin police chief orders arrests for crimes cops can't prove
In other Austin PD news, Grits finds bizarre Chief Bryan Manley's position that the department will continue to arrest and cite people for marijuana possession after the City Council forbade them from doing the lab testing to prove THC levels were above .3% and the substance could be distinguished from hemp. Isn't this the police chief openly saying he has ordered his officers to arrest people when they cannot prove the elements of the crime? To my attorney readers: What legal mechanisms exist to restrain police who openly choose to make wrongful arrests that prosecutors universally dismiss? IANAL, but it seems to me police don't have authority to arrest when there's no probable cause to believe a crime was committed. And since marijuana and hemp come from the same plant, they're indistinguishable without the test.

It's also worth mentioning, bringing the subject back around to the prior item, that marijuana enforcement generates even higher racial disparities than other Austin PD activities, reported the Austin Chronicle:

Data from APD shows that in 2019, a total of 432 citations were issued for marijuana offenses. Of those, 364 went to Black or Latinx Austinites, while just 64 went to white residents – despite similar levels of marijuana use among all three populations. So stopping enforcement of low-level cannabis offenses (see "Council Unani­mous­ly Votes to End Low-Level Pot Enforcement," Jan. 24) could reduce the disproportionate impact arrests and citations have on Austin's Black and brown residents. 

"It's outrageous for APD to be pointlessly writing these worthless pieces of paper," Emily Gerrick, an attorney with the Texas Fair Defense Project and an architect of the POM resolution, told us on Monday, Jan. 27. "Resources could be much better spent trying to address those types of racial disparities in the first place, such as with anti-implicit-bias training."

Competitive DA primaries in Texas
The Appeal compiled a list of competitive DA primaries in Texas. Harris, Travis, and El Paso counties are the big prizes. See a related spreadsheet.

Revenue collection not enhanced through driver license suspensions
The suspension of drivers licenses for nonpayment of traffic fines through the OmniBase program does not correlate with higher payment rates, found an analysis by Texas Appleseed and the Texas Fair Defense Project. The program "has a profound negative impact on people already struggling financially, driving them into a cycle of debt and poverty by taking away their ability to legally drive." The groups encouraged cities and counties to stop using OmniBase altogether, suggesting payment rates may be unaffected.

↓ Texas ad seg numbers may be an illusion
The Texas Observer's Michael Barajas took a deep dive into solitary confinement issues. Texas' numbers of prisoners in solitary, dubbed "ad seg" in TDCJ parlance, has declined by more than half, according to official figures. But Barajas' reporting raises the possibility that some of that reduction stems from reclassifying prisoners, not changing the conditions they live under:

as the Texas Tribune reported last year, some of TDCJ’s new programs may actually mask the extent to which the state has reformed its solitary confinement practices. Inmates moved out of solitary and into a mental health diversion program still live in conditions that seem indistinguishable from solitary; prisoners continue to be confined in small spaces and have limited time outside their cells. Regardless of these similarities, Texas doesn’t count its participants as being in isolated housing.

Dallas bail reform collapses into confusion
In Dallas, D Magazine has the story of how bail-reform their has collapsed into confusion. Was glad to see the article critique the same, ill-conceived op eds from the Dallas News at which Grits lashed out in this post. Here's  how the author, Shawn Shinneman, summarized the flaws in the DMN editorial board's analysis:

That editorial is inaccurate. It suggests we have true bail reform in Dallas County. We don’t. It insinuates Creuzot’s wish-list reforms are in place. For the most part, they aren’t. It also conflates a violent offender with the type of defendant bail reform is targeted at: poor people who are accused of a nonviolent offense, whose lives are upended because they don’t have money to post bond.

Long-time ex-San-Angelo police chief indicted for bribery

Timothy Ray Vasquez, who was police chief in San Angelo from 2004-2016, has been indicted in federal court for allegedly taking bribes related to the purchase of an $11 million radio system. Most of the alleged bribes were funneled through a wedding band called "Funky Munky" the chief played in on the side.

Reentry travails in Tyler
In The Tyler Loop, Jennifer Toon has an excellent essay on the travails of reentry given limited treatment resources and lack of halfway houses outside of the big population centers.

Economists economisting on crime
See the lineup for the Texas Economics of Crime Workship at Texas A&M, organized by Prof. Jennifer Doleac. As regular readers know, I consider economists' analyses of crime generally flawed and harmful. But thankfully, as in this workshop, most economists analyzing criminal-justice issues aren't utilizing economic principles, they're just doing applied math.

Flawed forensics chronicled
Recent coverage of flawed forensics deserves readers' attention:

• New York Review of Books: Jailed by Bad Science
• GQ: Evidence on Trial: Why the forensic evidence is less reliable than we think
• The Outline: The dangerous shortcomings of forensic science
• Science and Justice (academic): Cognitive Biases in the Peer Review of Bullet and Cartridge Case Comparison Casework: A Field Study

1994 Crime Bill revisionism

Doug Berman says the 1994 Crime Bill wasn't as bad as you think and maybe even did some good, from the vantage point of 20/20 hindsight. But it still "fostered and reinforced tough-on-crime attitudes in Washington and among state and local criminal justice officials that contributed to historic growth in national prison populations." That's the most important takeaway, IMO. These revisionist analyses are fine, but here's the thing: Federal crimes are a small part of the system, so the biggest impact of the 1994 Crime Bill was political: It galvanized bipartisan support for mass incarceration that led to so-called liberal Democrats running political ads like this one:

Demagoguery vs. pot decrim focused on pretending violent crime will spike

The Austin City Council this afternoon will consider a proposal to forbid spending money for lab testing in user-level marijuana cases. Such testing is required to prosecute cases after the legislature legalized hemp, not realizing Texas crime labs were unable to distinguish hemp from marijuana. As a result, marijuana prosecutions around the state have plummeted. The Austin City Council essentially wants to make that situation permanent in the capital city.

In response, law enforcement has pretended such a move would spur anarchy in the streets, even though these cases haven't been prosecuted for half a year and it's been no big deal. Doubling down on District Attorney Margaret Moore's declaration that failing to prosecute these people would increase violent crime, police brass in Austin are making similar, baseless declarations: 

Austin police Assistant Chief Joe Chacon said ... the department is concerned about potential ripple effects to violent crime that police fear could come from such a move.

“If we start making it harder for our officers to really take that enforcement action, that emboldens the dealers and people to kind of move into this space to deal narcotics or to deal marijuana,” Chacon said. “When people kind of crowd into that space, we can anticipate that there’s going to be violence that’s going to come along with that. We’ve seen it happen in other areas, and that’s what we’re concerned about for Austin.”

This is silliness. Many states have decriminalized marijuana and 11 have legalized it outright. All of the Chicken Little predictions in those places turned out to be false, and Grits doesn't believe for a moment that Austin will be the exception to the experience of dozens of similarly situated jurisdictions.

Since the Texas Legislature revised hemp laws last year, making it impossible to prosecute marijuana cases without specialized lab testing, pot prosecutions declined by 2/3 across the state, not just in Austin, and the crime wave these demagogues are predicting simply never materialized. Codifying this change into a formal policy won't change that.

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.

Oklahoma! (does #cjreform); HPD raid response doesn't address phony informant; why do probationers die at high rates? And other stories

Here are a few browser clearing odds and ends:

One out of 8 Travis County jail bookings in 2018 was for Class C misdemeanors
In Travis County last year, more than 5,000 people were arrested for a Class-C misdemeanor only - about one out of every eight people booked into the county jail. Between the Freedom Cities ordinance restricting Class C arrests, beginning in January, and the elimination in June of the local no-sit-no-lie ordinance aimed at the homeless, those bookings should decline significantly for 2019.

Post-raid HPD reforms don't address faked informant that got 4 officers shot and killed 2 innocent people
After a no-knock drug raid in Houston this spring killed two innocent people and left four officers shot, HPD Chief Art Acevedo has announced he's creating a special division of the narcotics unit to execute search warrants in drug cases. But as I told the Houston Chronicle:

“His reform is not on point to what caused the problem,” said Scott Henson, policy director with the criminal justice reform nonprofit Just Liberty. “It’s not solving the problem that your investigators are relying on fabricated informants — [it] wasn’t a function of who’s doing the raid, but why you’re doing the raid, and the reliance on this informant, who it turns out didn’t exist. That’s what caused everybody to get shot. It just elides the core issue of what really happened.”

Attacking junk blood-spatter evidence
Check out an amicus brief arguing to disallow blood-spatter evidence in the Joe Bryan murder case that was the subject of Pam Colloff's massive NY Times Magazine/Pro Publica feature. In it, Duke law-school faculty and students argue that, based on current standards, the blood-spatter expert in Bryan's case could not today testify to the main points used to convict him.

Not so natural after all
His death in the Victoria County Jail was attributed to "natural causes." It turns out, he was denied his methadone prescription and died from preventable withdrawal symptoms. Read the excellent Victoria Advocate account from Kali Venable. See also the Advocate editorial board's condemnation of using jails and prisons to treat addiction.

"Power concedes nothing without a demand ..."
"... it never has, and it never will," said Frederick Douglass. So Grits doesn't feel too bad that elected officials in Austin consider criminal-justice reformers excessively pushy, as several implied in this Austin Statesman article about a string of successful, capital-city #cjreform campaigns. Nobody was going to do any of those things if reformers said "Pretty please" and then waited politely for a response.

Own it!
Gov. Greg Abbott's intervention into Austin's homelessness crisis means he now owns the issue. If it isn't solved, it's his fault. Not sure that was the wisest political choice, but it's the one he made. MORE: Now the governor "owns" his own homeless encampment, with neither a budget line item nor any apparent exit plan besides providing still hypothetical services to Austin's homeless ad infinitum. That'll teach 'em! 

Why do probationers die at high rates?
Here's a possible, future, Suspicious Mysteries segment for the Reasonably Suspicious podcast: Grits has long been aware of research showing incarceration in prison reduces life expectancy. But a new study shows that being on probation is associated with a much higher morbidity rate than being in prison or jail, much less in the free world. I don't know how to parse these competing claims. One one hand, while prison healthcare isn't great, being in prison makes it easier to treat chronic conditions because the patient is always available and can't easily decline treatment. On the other, prison can make you sick; e.g., people who contract Hep C in prison  may suffer liver failure later, once they're out. Meanwhile, to the extent criminal laws in general target the poor, the developmentally disabled, substance abusers, the mentally ill, minority communities subject to discrimination, etc., it's not surprising probationers would be an especially sick lot. Or maybe the difference is that people in prison aren't at risk of dying from car crashes! Who knows? Grits would like to better understand this nexus of corrections, health, and morbidity rates. I haven't yet wrapped my head around it. When people die in prison or jail, there is an independent investigation; no one investigates when probationers die, so outside of the above-linked study, we don't have very much information at all regarding why that is.

The Probation Trap
Probation as an institution changes its form and purpose depending on the angle from which one looks at it. Viewed one way, it diverts people from prison. Viewed another, it's a net-widening trap. The Philadelphia Inquirer has published an excellent series expounding the latter view. Via SL&P.

Oklahoma!
As much as it pains me to say so, Oklahoma has now definitely out-paced Texas as the red-state poster child for criminal-justice reform. Also via SL&P:

• Boston Globe, "What a conservative state can teach us about progressive criminal justice reform"
• US News, "Oklahoma Focuses on Criminal Justice Reform"
• Washington Post, "Oklahoma approves largest single-day commutation in U.S. history"

On the ground, #cjreform is not really a red-state-blue-state issue.

When smelling pot is pretext for a search
In Philadelphia, police officers who said they searched a car because they smelled marijuana were extremely unlikely to find any and disproportionately searched black people. When the data was gathered, public defenders argued that "the odor of marijuana [should] no longer be considered probable cause for officers to believe a crime has occurred and conduct a search."

Breathalyzer tests as junk science
The New York Times took a trip down the rabbit hole of DWI breath-test forensics. Like DNA mixture software, analysts treat breathalyzers as a magical black box they simply assume supplies reliable results. The problems, however, have been long known.

'Five facts about crime in the U.S.'
Read this from the Pew Research Center.

Humpty Dumpty, the Castle Doctrine, and other stories

Here are a few odds and ends that merit Grits readers' attention:

Humpty Dumpty and the Castle Doctrine

The judge in former Dallas police officer Amber Guyger's murder trial for the shooting of Botham Jean gave the jury instructions on the Castle Doctrine defense, despite the fact that Guyger entered Jean's home and shot him, and wasn't defending her "castle." Her lawyers employed this argument as their primary defense (that it wasn't her home was a "mistake of fact," they said) so the judge had no choice but to address it, but Humpty Dumpty would be proud! The claim didn't help Guyger, however. She was convicted, anyway. UPDATE: Guyger was sentenced to ten years.

Death of trailblazing deputy raises difficult, familiar questions
The tragic shooting death of a Harris County Sheriff's deputy - a trail blazing figure who was the first Sikh to work in Harris County law enforcement - raises familiar questions with no satisfying answers. The alleged killer is a severely schizophrenic parolee who had gone off his meds and heard voices telling him to kill people. Is the criminal-justice system the best way to deal with people whose offenses are rooted in severe mental illness? How did this convicted felon and parolee get a firearm? He already was the subject of a warrant for violating his parole, should more resources be allocated to search for high-risk parole violators? His family had told officials he was dangerous and off his meds: Are there "red flag" laws that could have allowed them to act sooner? The circumstances surrounding this awful episode will provide fodder for these and many other debates in coming years. The public dialogue would have been easier, in a sense, if this had turned out to be a hate crime. The issues surrounding mental illness and the politics of gun proliferation are much more complex and difficult to deal with.

Private jail operator keeps screwing up
At the Liberty County Jail, which is operated by the Geo Group, "In the last 60 days, there have been two felony escapes, one of their correctional officers was arrested for stealing from inmates while on duty, and most recently, there are questions surrounding the death of a prisoner who hanged himself while in their custody. Apart from those instances, they have also flunked two jail inspections this year, one on April 22 and the second on June 28," the Houston Chronicle reported. Local officials are considering whether to terminate ties with the private prison contractor.

The economics of high probation fees
Check out a new article from our friend Todd Jermstad, probation director in Bell County, on the history and future of court-imposed fees at Texas probation departments. Especially interesting was his thesis that policymakers should take into account reduced means of Gen X and Millenial defendants, whose economic prospects remain less robust than earlier generations. Grits may delve more deeply into this soon, but for now, here's the link.

Bail litigation roundup
See a write-up from The Appeal of recent bail-litigation news, including from Houston and Galveston. See also related Grits coverage and our discussion of the topic in Just Liberty's most recent Reasonably Suspicious podcast.

Over friggin' pot?
In Hutto, a police officer responding to a call that someone was smoking marijuana beat up a man in his driveway and made false accusations in official documents to justify it. The victim had no marijuana in his possession, and bodycam video proved the cop was lying about the victim pushing the officer before he was attacked. The officer was fired, was indicted in May, and the victim has filed a civil rights suit, reported KXAN-TV.

Homelessness problems and solutions
In the wake of Austin's tendentious debate over homeless policy, I was interested to see this excellent New Republic article on "housing insecurity in the nation's richest cities." When, in the 1990s, my wife and I could rent a dilapidated three-bedroom house in East Austin for $190, homelessness wasn't such a big problem. Now that rents in my neighborhood for similar homes approach $3k per month, it's little wonder more people are on the streets. Meanwhile, Bloomberg News had an informative piece a couple of months back on how Finland all but eliminated people sleeping on the streets by investing in preventive strategies like rent subsidies.

How police misconduct gets covered up by plea bargaining
Here's an excellent analysis from Brooklyn public defender Scott Hechinger of how mandatory minimums and the threat of long sentences help cover up police misconduct that would otherwise come out in court. That's because "victims of police abuse — illegal stops and frisks, car stops and searches, home raids, manufactured charges and excessive force — routinely forgo their constitutional right to challenge police abuse in a pretrial hearing in exchange for plea deals." This is undeniably true. It's only in cases like the episode in Hutto, described above, where victims face no charges that officers can be held accountable through regular court processes.

Financial motive not only reason prosecutors oppose actual-innocence claims
The New York Times published a feature on falsely convicted people who've been exonerated by the evidence but cannot secure an "actual innocence" ruling because prosecutors fear the financial consequences of civil rights lawsuits against local jurisdictions. All of the examples are from other states, but Texas' situation casts additional light on this topic. I was policy director at the Innocence Project of Texas when the Legislature passed the best-in-the-nation compensation package for exonerees in 2009. We hoped to avoid this dynamic by having the state compensate innocent convicts instead of the locals. Indeed, the bill was sold as a form of "tort reform," eliminating local liability for what were seen as systemic flaws causing false convictions. But it turned out, the real, underlying complaints weren't financial. Many prosecutors and some judges on the Court of Criminal Appeals simply don't want to see falsely convicted people compensated, ever, and go to great lengths to oppose actual-innocence claims, despite the fact that locals weren't on the hook. So Grits is skeptical of the article's thesis that the motive behind opposing actual-innocence claims is financial. I think it's more pernicious than that.

Sheriffs and #cjreform
Our pal Jessica Pishko published a New York Times op ed on Sheriff's offices, declaring "The problem of sheriffs is particularly acute in the South and Southwest, where the office has more power and was historically used to prop up white supremacy." She calls for Sheriffs to undertake what amounts to a truth-and-reconciliation process for past wrongs. That sanguine suggestion to me seems unlikely. Texas alone has 254 counties, after all - a few might do that, under the right political circumstances, but most will not. And abolishing the office, as some have called for, doesn't change the fact that someone has to perform those functions. Grits has often thought that sheriffs' jail-management duties should be separated from their responsibilities to patrol unincorporated areas. These are distinct functions involving very different skill sets, and typically those elected to the office only have knowledge of one or the other. Whether Sheriffs should be an elected position is a question for another day.

Deep thinking on sex-offender policies
A recent NY Times piece examined emerging research on people who are sexually attracted to minors, finding that its roots are not genetic, but are "prenatal," and "can be traced to specific periods of development in the womb." And this Marshall Project story looks at evidence-based anti-recidivism programs aimed at people convicted of violent, sexual crimes once their sentence is complete. I found both articles to be thoughtful contributions to the discussion.

Most crime dropping nationally, but look at those rape numbers!
New Uniform Crime Report data is out, and most categories of crime have continued to fall, except rape, which has risen precipitously since 2014. See first-cut analyses from the Brennan Center and the Marshall Project. No one knows for sure what's behind the rise in rape numbers. The feds began using a more expansive definition of sexual assault in 2014, but the numbers increased even using the "legacy" definition. The question arises: Have there actually been more rapes committed over this period, or are we simply now getting a more complete picture of the scope of the problem in the wake of increased reporting thanks to the #MeToo movement? ¿Quien sabe? Regardless, the year-over-year decline in property crimes, murders, robberies, etc., is cause for celebration, while the sex-assault data should contribute to deeper conversations on the question.

Roundup: Debtors prison practices, a hempsplainer, why the Harris DA opposes bail reform, and other stories

Here are a few odds and ends that merit Grits readers' attention:

Debtors Prison Blues
Texas was one of five over-represented states in this Governing magazine feature story on municipalities that get more than 10% of their budgets from traffic fines. Great piece; reminded me of this Marshall Project story. In Texas, the agencies most reliant on traffic fines are primarily in East Texas, and up and down I-35. Long-time readers may recall Grits wrote a theme song for these agencies:

District Attorney opposing Harris County bail settlement

Harris County DA Kim Ogg issued an amicus brief opposing the new bail-reform settlement agreed to by judges and the county.

On the pitfalls of state police patrolling local police beats

Texas DPS this spring began sending troopers to patrol in the Dallas city limits. But when they shot and killed somebody, it turned out they're not as accountable as local cops.

Hempsplainer

The Texas Forensic Science Commission put out an explainer document (a "hempsplainer"?) related to the new requirement that prosecutors prove the THC levels in marijuana to secure a conviction for possession. In related news: Add Amarillo to the jurisdictions where Class B marijuana cases are being dismissed.

Grappling with excessive police-union power

Check out an essay on "The Unjust Power of Police Unions."

On racial stereotyping

Grits found this interview on racial (and other) stereotyping interesting and useful.

Mitigating harm from if-it-bleeds-it-leads crime coverage

For the journalist crowd: "Doing No Harm: The call for crime reporting that does justice to the beat."

Podcast: Ranking the greatest American prison songs, a crowd-sourced exoneration out of Tyler, and other stories

Check out the August episode of the Reasonably Suspicious podcast. We've got a special treat this month, with Texas Monthly's Michael Hall stopping by to tell us about the latest innocence case he's been covering out of Tyler, and a special segment in which he and I rank the greatest American prison songs

Here's what's on tap this month:

Top Story: 
Hemp SNAFU led to de facto natural decrim experiment for marijuana in many counties.

Interview: 
Texas Monthly's Michael Hall tells the story of an actual innocence case out of Tyler that was broken open by a Michigan podcaster.

Conversation: 
Scott and Michael Hall rank the greatest American prison songs. Go here for a YouTube playlist of all the songs we discussed, plus some from Scott's list that didn't make it into the podcast.

The Last Hurrah:
* DPS intel chief who warned of Mexican rapists arrested for sexual assault
* Texas House members create criminal-justice reform caucus
* Harris County bail lawsuit settled

Find a transcript of the podcast below the jump.

Policy solutions for Denton County's understaffed jail

The Denton County Jail is suffering an "extreme staffing shortage," reported the Record Chronicle, although their 13 percent vacancy rate is far lower than at the Texas Department of Criminal Justice.

Even so, it's worth reiterating the quickest, easiest ways for Denton County to reduce its jail population to levels they can safely staff:

Reduce arrests for Class C misdemeanors by the Sheriff, Denton PD, and other local law-enforcement agencies by implementing policies similar to Austin PD's "Freedom City" initiative.

Use discretion to stop arresting/charging people for low-level marijuana possession until the state either changes the hemp law or crime labs are able to distinguish legal from illegal THC levels in pot.

The District Attorney could use his discretion to dismiss Class B driving-with-invalid license cases, which mostly stem from about-to-go-away Driver Responsibility surcharges. (These have become increasingly common.) Arresting people for what amounts to a poverty crime - essentially an administrative violation, at that - contributes nothing to public safety.

These are all categories of misdemeanor defendants who would likely plead out to time served, anyway. Why not change policies on the front end to keep them out of jail and avoid having to hire guards to manage them?

Denton County may not be the first jurisdiction that leaps to mind when it comes to criminal-justice reform, but Necessity is the Mother of Invention. If they don't want to pay jailers competitive salaries compared to median local incomes, the other option is to jail fewer people. Reducing incarceration among these discrete, nonviolent categories would be a smart place to start.

Flirting with more rational pot policies

Grits returned yesterday from a much-needed vacation in cooler climes, only to find Texas #cjreform news gushing like a fire hydrant pried open to beat the summertime heat.

Let's start with marijuana. Just before I left town, we learned that the Texas Legislature had altered marijuana laws to make it difficult-to-impossible to prosecute low-level marijuana cases. Bexar County DA Joe Gonzalez took leadership on the issue, announcing he would not prosecute possession cases without a lab result. DAs in Tarrant, Fort Bend, Nueces, and Williamson Counties followed suit, with Williamson County Attorney Dee Hobbs citing the risk of false convictions. And the Fort Worth Star-Telegram's editorial board quoted Grits in a post calling for District Attorneys to use the opportunity as a natural experiment to see what would happen if pot were decriminalized.

Notably, while on vacation in Quebec, Grits got a first-hand look at how marijuana legalization plays out in the real world. Two words: boring and lucrative. Pot smoking wasn't any more prevalent in public than previously, said the locals, but the dispensaries were bustling with commerce and filled with satisfied customers. Prices were 40-50% less than black-market prices in Texas, even though Canadian taxes on weed are significant. All in all, it seemed to this writer like the epitome of a win-win policy; just a very grown-up way to handle the matter.

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.

My last sliver of hope regarding 2019 marijuana reform in Texas: political pragmatism

Lt. Gov. Dan Patrick declared HB 63 (Moody) reducing penalties for marijuana possession "dead" in the Texas Senate, and Senate Criminal Justice Chairman John Whitmire has said the bill wouldn't get a hearing in his committee, though he's backtracked on that a bit.

Grits still harbors the slightest of hopes that the Lt. Governor may change his mind. Here's why.

First, the bill is different from what he's criticizing. Patrick opposed "decriminalization" in his comments, which is what El Paso Democrat Joe Moody had proposed in his original bill.

Governor Greg Abbott, by contrast, had proposed keeping marijuana possession criminal but reducing the penalty category from a Class B to a Class C misdemeanor. His reasoning had nothing to do with legalization: Rather, he was concerned about counties wasting money incarcerating pot smokers and paying for their lawyers if they're indigent.

Judging from his comments, when the Lite Guv made them, he was unaware that language matching the governor's proposal had been substituted on the House floor for Moody's decriminalization bill. If that's true, maybe he won't be as opposed once it's clear (as it should be by now) that "decriminalization" is not what the House passed.

The second reason I remain hopeful is that Republicans at the capitol are justifiably worried about the 2020 election cycle, and killing HB 63 is bad politics.

Democrats made substantial gains in the Texas House in 2018. If they win nine (9) more seats in 2020, which is not remotely outside the realm of possibility, given prevailing national-election dynamics, Democrats will select the next Speaker of the House, just in time for redistricting in 2021.

Which brings us to marijuana: Reducing marijuana penalties is a popular political issue, supported by 62 percent of Texas Republicans and 79 percent of Texas Democrats, according to a Texas Tribune poll. That makes it a wedge issue for Democrats (not to mention Libertarians, who may swing elections at the margins by siphoning off Republican votes).

Republicans in swing districts, by Grits' calculations, supported HB 63 by a 2-1 margin. They know they have to run to the center to win a general-election contest, and most of them think this hill isn't worth dying on.

For that matter, the state GOP party platform endorsed reducing marijuana penalties to a civil infraction with a maximum $100 fine. There's an extent to which Patrick's stance is out of step not just with the electorate and legislators in swing districts, but also his own party.

The 2020 election will be dominated by a national referendum on Donald Trump, and the fates of Republicans in swing districts may be decided by the extent to which candidates can convince new voters to split tickets.

Marijuana reform is a popular, readily understood issue with which Rs in those swing districts could distinguish themselves, if the Legislature were to pass HB 63. But if the Lt. Governor's hard "no" stands, a yes vote on a dead bill won't help them.  What other wedge-issue legislation is being passed to help R members withstand a "blue wave"? This is the highest profile-example I can think of, by far.

Handing a popular issue to Democrats with which 62 percent of Republicans agree during an election cycle with so many swing districts in play makes no sense. The smarter play is to steer into the skid: Pass HB 63 and allow Republicans in swing districts run on less government, lower costs, and more freedom. Take the issue away from Democrats and make it a wedge issue with their base.

So there's my sliver of hope: 1) Dan Patrick's public statements appear to leave open options that don't endorse "decriminalization," including the governor's preferred approach (which is what's actually in the bill that came over to the senate). And 2) Republicans need to bolster their state reps in swing districts if they want to control the Texas House during redistricting next session.

Or, HB 63 could just be screwed. That's more likely, but hope springs eternal.

Governor Abbott radically scales back support for reduced pot penalties

I'll take "Things you say in a campaign that
you don't really mean" for $500, Alex

What a disappointment!

During his campaign last year during a debate with Democrat Lupe Valdez, Governor Greg Abbott announced his support for making possession of up to two ounces of marijuana a Class C misdemeanor. But the governor has now backed off of that position, radically limiting his earlier proposal. He's still for reducing marijuana penalties, but only for amounts so small that it won't affect most cases.

At the House Criminal Jurisprudence Committee meeting on Monday, Chairman Nicole Collier laid out a new committee substitute to HB 335 (Dutton) to make possession of only up to 2 grams a Class C misdemeanor. On a third offense, charges would increase back to a Class B. She declared the changes were made at the request of Governor Abbott.

The governor said last year he did not want to see "jails stockpiled with people who have possession of small amounts of marijuana." But that's exactly what will continue to happen thanks to this change in the bill.

Two grams is a very small amount. Texas law currently treats up to 2 ounces as a Class B misdemeanor, which is considered a user-level amount. Most folks buy pot in quantities of an ounce (~28 grams), a quarter ounce (~7 grams), or an eighth of an ounce (~3.5 grams). So this change will keep pot possession a Class B misdemeanor for most people charged with the offense.

The same committee earlier approved HB 63 (Moody) making possession of up to one ounce of marijuana a civil penalty. But the governor reportedly favors keeping pot possession in the criminal statutes.

In this, Abbott is out of sync with his own party. The Texas GOP state party platform approved last year declares, "We support a change in the law to make it a civil, and not a criminal, offense for legal adults only to possess one ounce or less of marijuana for personal use, punishable by a fine of up to $100, but without jail time." Moody's bill is the closest legislative proposal to that position.

If the scaled-back version of HB 335 is all Governor Abbott will allow to happen, then I suppose, as my father likes to say, it's better than a sharp stick in the eye. But after seeing him campaign on a more aggressive proposal back when he was seeking to appeal to swing voters in a general election, it's discouraging to watch the governor backtrack.

Podcast: Elsa Alcala says Texas death penalty unreliable; parsing new TX traffic-stop data; prospects for Lone-Star marijuana reform, and other stories

Here's the March 2018 episode  of the Reasonably Suspicious podcast, recorded last week on the SXSW Podcast Stage hosted by Cadence13. Former Texas Court of Criminal Appeals Judge Elsa Alcala was our special guest, focusing on junk forensic science and the death penalty.


Here's what's on this month's show:

Opening Riff
Would permanently shifting to Daylight Savings Time reduce crime?

Top Stories

• Prospects for marijuana reform in Texas
• New data on use of force at Texas traffic stops
• Legislative proposals to end the Driver Responsibility surcharge

Forensic Focus
Judge Elsa Alcala discusses junk science cases at the Texas Court of Criminal Appeals.

Death and Texas
Judge Alcala discusses the evolution of her views on capital punishment, from proponent to critic, and what the Texas Legislature should do to fix the state's unconstitutional laws on executing people with developmental disabilities.

The Last Hurrah

• More corruption revealed after botched drug raid in Houston
• Should stealing Amazon packages become a felony?
• Closing the "Dead Suspect" loophole to the Texas Public Information Act

Find a transcript of the show below the jump.

TX marijuana reform news, notes, and questions

Grits' analysis of prospects for marijuana penalty reform haven't changed since the beginning of the legislative session. Full-blown Colorado-style legalization is off the table this year, but penalty reduction for user-level marijuana possession has an excellent chance.

The Republican Party in its platform has endorsed one proposal making possession of up to one ounce of marijuana a civil penalty, a measure embodied in Speaker Pro Tempore Joe Moody's HB 63, which received an early hearing this week. Watch the hearing here; the discussion of HB 63 begins at the 41 minute mark.

Meanwhile, Governor Abbott has endorsed reducing the penalty for up to two ounces of pot to a Class C misdemeanor, which is a fine-only offense usually handled with a written citation.

Those remain the two, competing proposals with the best chance of passage. And the civil-penalty idea is getting a head start in the House with a strong, early hearing. Plus we're gaining a little new information as the process moves along. Here are several, disparate, pot-related items I wanted to record at this point in the process which merit Grits readers' attention:

First, the Texas Observer best-in-state coverage of Monday's hearing was titled "Third Times' a Charm," which is certainly the case for Speaker Pro Tempore Joe Moody's bill providing civil penalties for pot. His was a fresh approach to an old problem. But it's worth remembering that legislation to reduce penalties for low-level marijuana possession, as Governor Abbott endorsed, first (unanimously) passed out of the House Criminal Jurisprudence Committee in 2005. The bill simply has never been blessed by House leadership to receive a floor vote, even though most vote counters believe it would overwhelmingly pass.

Another tidbit from this Texas Tribune story, an updated estimate of the number of annual marijuana arrests: "According to the Texas Department of Public Safety, roughly 379,000 Texans have been arrested for possessing 2 ounces or less of marijuana in the past five years." That's 75,800 people arrested per year, more than has sometimes been reported.

Moreover, the Trib reported, "In Dallas County, newly-elected District Attorney John Creuzot said his office is currently declining prosecution for first-time marijuana possession offenders." Creuzot is the first Texas DA to go that far. Here's hoping he won't be the last, and that he'll expand the non-prosecution policy to other victimless crimes like Driving With License Invalid (DWLI).

In San Antonio, DA Joe Gonzalez aims to fix a broken, unused cite-and-release system for pot possession and theft of service, eliminating a $250 fee that kept people from using it, the Express-News reported. (He is also becoming a vocal proponent of bail reform.)

No companions have been filed in the Senate to either Moody's bill or the competing penalty-reduction legislation, although there are still a couple of days left to sneak one in under the wire. (See the comments.) But especially with Moody's bill getting an early start, it appears the marijuana reform action will begin on the House side this year. That suits me fine. I don't doubt for a moment there are sufficient votes on the House floor to pass it.

Unanswered questions: There are many.

Will the House Criminal Jurisprudence Committee Chairwoman Nicole Collier also hear legislation promoting Gov. Abbott's version of reform, or was the early promotion of HB 63 a signal that she prefers that method?

Will Gov. Abbott acquiesce in a GOP-platform endorsed alternative (HB 63) to his own idea, or threaten an unpopular veto?

If Moody's bill comes over from the House with the GOP-state platform's imprimatur, will Lt. Gov. Dan Patrick, a champion of the platform on other topics, shut it down?

There's many a slip twixt the cup and the lip, as my late grandmother used to say. And while there are positive signs this year for reducing user-level marijuana penalties in Texas, there are also a lot of things that could go wrong if key actors aren't willing to compromise.

Grits prefers the Moody bill, but the Governor's proposal would be a huge improvement and I've supported his suggestion many times in past legislation, back before marijuana reform became the Flavor of the Month. Either approach would be a big improvement and I hope legislators, the Governor, and everyone else with competing proposals can agree on a path forward.

Prospects for reduced marijuana penalties in the 86th #txlege

The Texas Legislature this year is primed for its most serious effort yet at reducing penalties for user-level marijuana possession.

Legalization is off the table. This is a debate about reducing punishments. (I'm setting aside here medical marijuana proposals, which Grits doesn't track closely and are outside my area of expertise.)

There are essentially two proposals for reducing pot penalties that have a chance, and each have been endorsed by prominent Texas GOP officials.

Gov. Greg Abbott during a campaign debate endorsed reducing penalties for up to two ounces of marijuana from a Class B to a Class C misdemeanor. That would reduce the maximum punishment from six months in jail and a $2,000 fine to no jail and up to a $500 fine.

Rep. Alma Allen has filed HB 371 making possession of up to one ounce a Class C, so our Republican governor has proposed a more aggressive reform measure than this Democratic state rep. (Grits doesn't see any reason to create a new stair-step here; they should amend the bill to cover up to 2 ounces, like the Governor suggested.)

Meanwhile, the 2018 state GOP platform endorsed a measure to make user-level marijuana possession a civil penalty with a small fine, essentially decriminalizing but keeping it a civil infraction.

State Rep. Joe Moody has filed a new incarnation of that proposal, HB 63, which cleared committee with bipartisan support in 2017.

The combination of the Governor's endorsement and selection of a new House Speaker opens the political door for reforms to pass.

Both proposals have been passed out of the House Criminal Jurisprudence Committee before - a version of the Allen bill unanimously did so as far back as 2005 - but neither ever received a vote on the House floor. 

Joe Straus had many chances to let members take that vote when he was Speaker and never would, so him leaving potentially gives the issue new legs. That both the party platform and the Governor endorsed marijuana reform in some fashion gives members more political cover than at any time in the past.

Indeed, since polling consistently shows Texans favor reduced pot penalties, the need for political cover is something pols only seek out of habit. It's pretty clear this is a popular policy that will benefit them politically. Based on whip counts from last session when we were hoping the Moody bill would get to the House floor, Grits believes the measure will easily pass the lower chamber by triple figures if they ever get to vote on it.

That said, nothing about this is a slam dunk.

Every bill in the Texas Legislature except the Appropriations package is by definition more likely to fail than to pass. And while the Governor has endorsed reducing penalties, the Lt. Governor's position remains a mystery. It remains to be seen if he's as respectful of the party platform when it comes to marijuana as he has been over bathrooms, immigration, etc..

And just because a Speaker who stymied reform left, that doesn't ensure the new Speaker will back it, even if the Governor and/or his party's platform do.

Finally, as one would expect, prosecutors and police unions are already crapping on the idea. Their biggest (stated) concern is that there's no test for drivers to tell if someone is under the influence of pot. But that's true now! Nothing changes if we punish pot possession at lesser levels. And again, legalization is off the table. So that seems disingenuous to me, an excuse for opposition rather than a compelling reason.

Bottom line: This is a moment for hope and optimism among marijuana reformers. But it's also the moment to get to work. There's a lot to be done before such changes become reality.

Pot-penalty-reduction policy has something in it for everybody

One often hears critiques that the justice system is "racist," and even those who hesitate to use that word must acknowledge that it produces discriminatory outcomes. The 21st century culture-war debates around #cjreform frequently are less about whether the system discriminates so much as whether there exists ill intent. Or whether, when discriminatory outcomes are so persistent and ingrained, the actors' "intent" even really matters.

When one examines the system closely, however, discriminatory outcomes aren't universal. They're more prevalent in some parts of the system than others, and one of the biggest sources of discriminatory outcomes is the Drug War.

The Texas Criminal Justice Coalition just put out a new data tool for analyzing criminal cases in Harris County since 2010, and it provides a useful starting point for demonstrating this observation.

For example, looking at countywide DWI data since 2010, we find that 13.8 percent of defendants were African American. Black folks make up about 19 percent of Harris County residents, so that's actually a lower proportion than their share of the population.

By contrast, when we look at marijuana arrests over the same period, we discover that a whopping 48.5 percent of defendants were African American.

Digging deeper to analyze results by agency, 59.25 percent of people arrested for marijuana by Houston PD were African American, 46.8 percent at the Harris County Sheriff, and 29 percent at smaller PDs in the county.

IMO, the difference here is that DWI arrests are mostly made as the result of fairly solid probable cause: Cops see someone swerving across lanes or smell alcohol on their breath at a traffic stop.

OTOH, it's hard not to conclude that there's more discriminatory targeting of black folks in the realm of drug enforcement. How else can HPD explain why nearly 60 percent of pot arrestees are black compared to a quarter of the city population? Nothing else but discriminatory enforcement makes sense to explain these data.

When Gov. Greg Abbott recently endorsed reducing marijuana penalties, he framed the issue as one of efficiency, wanting to keep pot smokers from needlessly filling up local jails at taxpayers' expense. But reduction of pot penalties can just as easily be framed as a racial-justice priority. In fact, both can be true at the same time.

A recurring theme on this blog, dating back to its earliest days, is that some of the strongest, most politically resilient reform proposals (and public policies, generally) are those with enough ambiguity to their meaning so that different constituencies can credibly tell themselves different stories about them without a fundamental contradiction. Reducing marijuana penalties fits that bill.

For liberals and libertarians, penalty reduction is a credible next step on the road to legalization, a goal prioritized in the state Democratic Party platform. It will eliminate more than 60,000 arrests statewide - disproportionately African Americans - the very first year the law is enacted. And it will contribute significantly to decarceration goals at Texas county jails.

For fiscally minded conservatives, those 60,000 defendants are costing taxpayers' needlessly for jail and indigent defense at a time when counties are complaining of unfunded mandates. Make the crime a Class C misdemeanor and the county neither must pay for their incarceration nor hire them a lawyer. So this is a "mandate" from which the Legislature could relieve county taxpayers.

Both these things can be true without either group of supporters disagreeing with the outcome of their allies' thinking, even if they may disagree with the priorities and ideological suppositions that got them there.

That helps explain why, despite the hyper-partisanship of the political moment, a Texas Tribune poll published in January found that 79 percent of Democrats and 62 percent of Republicans supported reducing penalties for low-level marijuana possession. (A majority in the poll, 53 percent, favored full-blown legalization.)

With the Governor's endorsement, Texas appears poised to finally reduce user-level marijuana penalties in 2019. Because they're racist. And because they're expensive. And inefficient. And discriminatory. And unfair. And because many people want to legalize it entirely. And because all those things can be and are true without being mutually exclusive. There's a little something in this policy for everybody.

Abbott endorses reduced pot penalties during gubernatorial debate

An email from Texas NORML brings the news that Texas Gov. Greg Abbott endorsed reducing penalties for low-level marijuana possession in last night's debate. They put out the image at right that included his money quote on the topic.

Go here to watch a video clip of the candidates' exchange regarding pot policy.

Notably, the Republican Party of Texas earlier this year endorsed reducing the penalty for possession of small amounts of marijuana to a civil penalty carrying a small fine. However, Gov. Abbott endorsed a slightly different proposal: Reducing penalties to a Class C misdemeanor.

What's the difference?

There are collateral consequences under federal law that attach to any criminal drug conviction, one of the most significant being denial of access to student loans, among others. Creating a new civil penalty would avoid those collateral consequences, which are not triggered by a civil fine.

Gov. Abbott's proposal - simply reducing the penalty by one category-level to a Class C - would have much the same effect on punishment practices. Most people would receive tickets instead of being arrested, so counties wouldn't have to pay for incarceration or hire them lawyers if they're indigent. The maximum punishment would be a fine, not jail time.

The argument in favor of the Governor's approach: It's a cleaner fix, legally speaking. Texas doesn't presently have civil penalties for much besides the Driver Responsibility surcharge, which itself is larded on top of criminal penalties, not levied instead of them. (Toll roads are the other main example.) Indeed, even business regulations here are typically enforced via criminal statutes. That's why, for example, Texas has so many felonies its citizens can commit with an oyster. The Legislature avoids regulation so much, they even choose to criminalize discouraged business practices.

For me, the civil penalty is the better bill, given the two options. The issue of collateral consequences is a big one, and no joke. But either proposal would be a big improvement over the status quo, as presently more than 60,000 people are arrested and jailed every year in Texas on low-level marijuana charges.

UPDATE: Since we're revisiting this discussion, just for fun, here's a jingle Just Liberty used to promote the civil penalties bill in 2017.