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Texas State Police Memo Directs Officers To Stop Marijuana Possession Arrests

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By Jolie McCullough, The Texas Tribune

Texas’ largest law enforcement agency is moving away from arresting people for low-level marijuana offenses. It’s the latest development in the chaos that has surrounded pot prosecution after state lawmakers legalized hemp this year.

As of July 10, all Texas Department of Public Safety officers have been instructed not to arrest people with a misdemeanor amount of the suspected drug — less than 4 ounces in possession cases — if possible, according to an interoffice memo obtained by The Texas Tribune. Instead, they would issue a citation requiring a person to appear in court and face their criminal charges.

Those issued a citation for misdemeanor charges still face the same penalties if convicted — up to a year in jail and fine of $4,000.

“Departmental personnel are expected to continue enforcing marijuana related offenses,” the memo states. “However, effective immediately, personnel will cite and release for any misdemeanor amount of marijuana.”

The DPS policy change came about a week before Republican state leaders chastised prosecutors who have dropped marijuana cases or put them on hold because of the new law. A spokesperson for Abbott did not immediately respond to questions for this story.

The memo by Randall Prince, deputy director of law enforcement operations at DPS, was sent out to guide enforcement practices in light of the new hemp bill that passed the Texas Legislature, House Bill 1325, and was signed into law last month. Prince clarified that HB 1325 does not decriminalize marijuana, writing, “Because marijuana and hemp come from the same plant, it is difficult to definitively distinguish the two without a laboratory analysis.”

That difficulty has led prosecutors across the state to drop hundreds of low-level marijuana cases and stop accepting new ones, since lab testing to differentiate between now-legal hemp and illegal marijuana is not currently available in government crime labs.

But while prosecutors have said the lack of testing knocks down their ability to prove something is marijuana beyond a reasonable doubt and secure a guilty verdict, the DPS memo stated that officers can still find probable cause — the legal burden needed to charge someone with a crime. Prince said the possibility that a substance is hemp, not pot, doesn’t outweigh the burden. He added that hemp production in Texas hasn’t yet started, making it “unlikely that any substance encountered now is hemp.”

However, in Tarrant County, law enforcement has sent some pending felony cases to a private lab that can differentiate between hemp and marijuana. The difference is marked by the level of tetrahydrocannabinol, or THC, in a cannabis substance. THC is the part of cannabis that gets you high. If it contains less than 0.3% of THC, it’s legal hemp; otherwise, it’s illegal marijuana.

The first two substances that came back with test results in Tarrant County contained 13% and 15% THC — making them marijuana, according to a spokesperson for the Tarrant County District Attorney’s Office. The third substance in a marijuana case had 0.2% THC — which is legal hemp.

It’s still unclear how much the new policy will impact marijuana prosecutions statewide. DPS did not respond to questions about the memo or how often its officers arrested people on misdemeanor marijuana offenses before the law change. The last annual safety report on the agency’s website, from 2016, says highway patrol troopers conducted about 65,000 criminal arrests — with no indication of how many were for marijuana or any other drug. In all of Texas in 2016, law enforcement officers arrested about 86,000 people on misdemeanor marijuana charges, according to DPS statistics given to budget officials this year.

There are also restrictions to the policy directive. Under Texas law, citations in lieu of arrest are only allowed if the suspected crime happens in the same county where the person lives. Marijuana found during traffic stops outside of a suspect’s home county along Texas highways, where DPS troopers often patrol, would still result in arrests.

And perhaps most restrictive, the memo says DPS regions should first consult with local prosecutors before implementing the new policy of cite and release and “follow each prosecutors’ direction regarding whether to cite or arrest.”

A growing number of law enforcement agencies have cite-and-release policies for low-level charges. On the list are departments in Harris, Dallas, Bexar, Travis and Nueces counties. Some counties also offer defendants a diversion program to keep their records clean and keep them out of jail. But law enforcement agencies that employ cite-and-release policies have a court system in place to accept those cases.

“It’s a collaborative effort,” said Troy Gay, Austin Police Department’s chief of staff. “If a court does not have a cite-and-release process set up, there’s no way for any law enforcement in that jurisdiction to do that.”

Most counties don’t have that process, potentially stopping DPS cite-and-release practices in largest parts of Texas. Gay did not have information on how often people in Austin cited for misdemeanor offenses failed to show up to their court dates, but he said police are arresting people much less. From the first fiscal quarter of 2018 to 2019, the arrest rate for cite-and-release eligible offenses dropped 59%, he said. The Travis County attorney, who handles misdemeanor prosecution, did not immediately respond to questions about cite and release.

This article originally appeared in The Texas Tribune.

The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

Texas Leaders Say Hemp Law Did Not Decriminalize Marijuana

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Politics

Andrew Yang Peddles Marijuana-Themed Presidential Campaign Merchandise

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2020 candidate Andrew Yang announced on Saturday that his campaign for the Democratic Party’s presidential nomination is rolling out a line of marijuana-themed merch.

The limited edition products blend Yang’s love of mathematics with his support for cannabis reform. A t-shirt being offered for $30 simply says, “Math. Money. Marijuana.” And a now-sold-out baseball cap says “Math” on the front and displays a cannabis leaf on back. There’s also a bumper sticker that says, “Legalize Marijuana.”

Please visit Forbes to read the rest of this piece.

(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)

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Buttigieg Pledges To Decriminalize Possession Of All Drugs In First Term As President

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South Bend, Indiana Mayor Pete Buttigieg released a comprehensive plan on Friday that calls for “decriminalizing all drug possession” in his first presidential term as a means to combat the opioid epidemic and treat addiction as a public health, rather than criminal justice, issue.

Decriminalization is just one action the 2020 Democratic presidential candidate said he’d pursue in order to reform the country’s mental health care system and bolster substance abuse treatment. His plan also includes proposals to reduce sentences for drug offenses other than possession, increase access to the opioid overdose reversal drug naloxone and make it easier to implement syringe exchange programs.

Buttigieg’s “Healing and Belonging in America” plan emphasizes the need to divert people suffering from addiction away from prisons and into treatment. He said he’d accomplish that by expanding diversionary programs and evidence-based training “for drug courts, mental health courts, and other alternatives to incarceration for justice-involved persons.”

The goal of decriminalization and diversion is to reduce “the number of people incarcerated due to mental illness or substance use by 75 percent in the first term.”

Under his plan, sentencing reform for drug offenses other than possession would be applied retroactively and coupled with expungements for past convictions. Buttigieg pointed to research demonstrating that “incarceration for drug offenses has no effect on drug misuse, drug arrests, or overdose deaths” and instead “actually increases the rate of overdose deaths.”

“We cannot incarcerate ourselves out of this public health problem.”

“To ensure that people with a mental illness or substance use disorder can heal, we will decriminalize these conditions,” the proposal states. “When someone is undergoing a crisis or is caught using a drug, they should be treated by a health professional rather than punished in a jail cell.”

“All presidential candidates should join Pete Buttigieg in recognizing that the criminalization of people for their drug use is wrong and simply bad policy,” Maria McFarland Sánchez-Moreno, executive director of the Drug Policy Action, said in a press release. “Possession of drugs for personal use is the single most arrested offense in the United States, eclipsing arrest rates for any other offense. With overdose numbers skyrocketing and entire communities, disproportionately black or brown, suffering from criminalization, it’s time for policymakers to shift gears. Taking an evidence-based, health-centered approach to address this crisis is not only true leadership – it’s common sense.”

The mayor also made harm reduction policies a key component of his strategy. He said take-home naloxone programs would be expanded to all 50 states by 2024 and that harm reduction services would be expanded “to reduce overdose deaths and the spread of infectious diseases related to needle sharing.”

The plan would make naloxone “broadly available in order to reverse overdoses” and remove “legislative and regulatory restrictions on the use of federal funds for syringe service programs.”

Buttigieg said the federal government should provide funding for state and local health departments to purchase the medication, make sure that it’s “available in public spaces and workplaces” similar to first aid kids and encourage “co-prescribing of naloxone with opioids, either by individual physicians or direct dispensing by pharmacists.”

Existing federal law makes it difficult to establish syringe exchange programs, in part because federal funds can’t be used to buy needles. The restrictions “hamper state and local responses, both because they limit resources and because they convey a negative message about the value of these programs, despite overwhelming scientific evidence that they can prevent transmission of HIV and hepatitis.”

In addition to lifting those barriers, the candidate said the Centers for Disease Control and Prevention “would also work with states to remove any criminal liability for those participating in” syringe exchange programs.

“Harm reduction programs are a critical part of any effective response to the opioid and injection drug use crisis. They minimize the negative impact of drug use without encouraging it, while reducing other side effects of drug use. In particular, this means access to syringe service programs for people who inject drugs, that link them to treatment, and provides access to sterile syringes. These programs help prevent transmission of HIV, viral hepatitis, and other infectious diseases associated with needle sharing, and reduce overdoses by deploying medication such as naloxone that help reverse the effects of opioids.”

One harm reduction policy that didn’t make the cut in Buttigieg’s plan is safe injection sites, where people could use illicit drugs under the supervision of medical professionals who could reverse overdoses and recommend treatment options. Sens. Bernie Sanders (I-VT) and Elizabeth Warren (D-MA), who are also running for the Democratic nomination, both proposed legalizing such facilities as part of criminal justice reform plans they released this month.

“Decades of failed mental health and addiction policy, coupled with mass incarceration that criminalized mental illness and drug use, have left us with a mental health and addiction care system so broken that today there are more people with serious mental illness in prisons than in treatment facilities,” Buttigieg said.

The candidate also made ending incarceration for drug possession—as well as legalizing marijuana—central principles of his previously released criminal justice reform plan, which he released last month.

But while the prior plan did not explicitly describe the move as “decriminalizing” drugs, even though advocates commonly use that word to refer to policies that remove the threat of being imprisoned for possession, the new document does use that terminology—signaling a shift in clarity as Buttigieg continues to develop his campaign messaging.

In other instances, he borrowed language from his criminal justice reform plan, specifically as it concerns how criminalizing drug use can increase rates of overdose, for his mental health proposal.

“Despite equal rates of use, Black Americans are nearly four times as likely to be arrested for using marijuana,” the criminal justice plan states. “Research shows that incarceration for drug offenses has no effect on drug misuse, drug arrests, or overdose deaths. In fact, some studies show that incarceration actually increases the rate of overdose deaths.”

Buttigieg mentioned that, as with drug offenses, black people are also more likely to die from overdoses. And that’s due to “the current broken system that criminalizes mental illness and addiction” that was “built during the crack epidemic of the 1980s.”

Elizabeth Warren’s Criminal Justice Plan Involves Legalizing Marijuana And Safe Injection Sites

This story was updated to include comment from the Drug Policy Action.

Photo courtesy of Flickr/Gage Skidmore.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.
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White House Drug Officials Say Legal Marijuana Is Up To States

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Two top federal drug officials, including the White House drug czar, recently said that marijuana legalization should be left up to states.

The comments stand out coming from the Office of National Drug Control Policy (ONDCP), which has historically played a central role in defending blanket federal prohibition.

Jim Carroll, the Trump-appointed drug czar who directs the administration’s drug policies, told Fox 59 reporter Kayla Sullivan that he considers legalization a states’ right issue. He added that he’d like to see targeted education campaigns concerning cannabis use during pregnancy and underage usage as well as research into impaired driving.

It’s a particularly notable position given that federal law stipulates that the drug czar is required to “take such actions as necessary to oppose any attempt to legalize the use of a substance” listed as Schedule I under the Controlled Substances Act, including marijuana.

Even if Carroll’s remarks arguably don’t directly violate that statute, they are significant in that he doesn’t seem to have taken the opportunity to proactively oppose state legalization efforts when asked by a reporter.

Anne Hazlett, senior advisor at ONDCP, also weighed in on cannabis legalization on Wednesday, telling CentralIllinoisProud.com that marijuana legalization is “a state decision.”

“Marijuana is an ongoing challenge that is being addressed in many of our states,” she said. “This is a state decision, and we would like to see additional research done so that these decisions being made at a state level are being made in a manor that is fully informed.”

Though the comments from Carroll and Hazlett seem to reflect an evolving understanding of the federal government’s role in imposing prohibition on the states, the ONDCP director has previously made clear he’s not enthusiastic about the burgeoning legal market.

During a House Committee on Oversight and Reform hearing in May, Carroll raised concerns about THC potency in marijuana products, saying “the marijuana we have today is nothing like what it was when I was a kid, when I was in high school.”

“Back then the THC, the ingredient in marijuana that makes you high, was in the teens in terms of the percentage,” he said. “Now what we’re seeing is twice that, three times that, in the plant.”

He also said that more research is needed and that the Drug Enforcement Administration as well as the Department of Health and Human Services are “working hard to make sure that we understand the impact of legalization of marijuana on the body.”

Federally Funded Journal Exposes How Marijuana Prohibition Puts Consumers At Risk

Photo courtesy of Philip Steffan.

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