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Marijuana arrests stay down

We really should view this as the new normal, and not a problem to be “fixed”.

It’s been more than six months since Texas lawmakers legalized hemp and unintentionally disrupted marijuana prosecution across the state.

Since then, the number of low-level pot cases filed by prosecutors has plummeted. Some law enforcement agencies that still pursue charges are spending significantly more money at private labs to ensure that substances they suspect are illegal marijuana aren’t actually hemp.

The Texas Department of Public Safety and local government crime labs expect to roll out a long-awaited testing method to distinguish between the two in the next month or so. But that’s only for seized plant material. There’s still no timeline for when they will be able to tell if vape pen liquid or edible products contain marijuana or hemp. And DPS said even when its testing is ready, it doesn’t have the resources to analyze substances in the tens of thousands of misdemeanor marijuana arrests made each year — testing it didn’t have to do before hemp was legalized.

“If law enforcement agencies and prosecutors asked for all of those to be tested when these new procedures become available … DPS would start with such a huge backlog that it would likely never get caught up,” said Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association. “One decision for prosecutors and law enforcement agencies and the labs is: How do they triage these cases to focus on the most important ones?”

[…]

In 2018, Texas prosecutors filed about 5,900 new misdemeanor marijuana possession cases a month, according to data from the Texas Office of Court Administration. The first five months of 2019 saw an average of more than 5,600 new cases filed a month. But since June, when the hemp law was enacted, the number of cases has been slashed by more than half. In November, less than 2,000 new cases were filed, according to the court data.

For those who support marijuana legalization, that change is welcome, adding to an already growing effort in some of the state’s most populated counties to divert pot smokers from criminal prosecution or not arrest them at all.

“It means that there are fewer Texans that are getting slapped with a criminal record for marijuana possession, something that is already legal in other states,” said Katharine Harris, a drug policy fellow at Rice University’s Baker Institute for Public Policy.

See here for the background. There’s no serious argument to be made that the drop in marijuana arrests has had any negative effect on public safety, but it has had the positive effect of keeping thousands of basically harmless people out of the criminal justice system. The main problem with the new status quo is that the reduction in prosecutions is completely ad hoc and not systemic. Whether one gets arrested and jailed or warned and released is entirely a function of where you are and which law enforcement agency is dealing with you. The Lege in 2021 needs to look at what has happened since this inadvertent loosening of marijuana laws and make it a real, permanent thing. We’ve already seem that nothing bad will come of it. Grits and the Current have more.

Did the Lege sort of decriminalize marijuana?

Well, sort of.

Because of a new state law, prosecutors across Texas have dropped hundreds of low-level marijuana charges and have indicated they won’t pursue new ones without further testing.

But the law didn’t decriminalize small amounts of marijuana for personal consumption. It legalized hemp and hemp-derived products, like CBD oil.

An unintended side effect of the law is that it has made it difficult for law enforcement to tell if a substance is marijuana or hemp, according to prosecutors. Among other provisions, House Bill 1325 changed the definition of marijuana from certain parts of the cannabis plant to those parts that contain a higher level of tetrahydrocannabinol, the psychoactive ingredient in marijuana that produces a high. It’s a difference numerous district attorneys, the state’s prosecutor’s association and state crime labs say they don’t have the resources to detect, weakening marijuana cases where defendants could claim the substance is instead hemp.

“The distinction between marijuana and hemp requires proof of the THC concentration of a specific product or contraband, and for now, that evidence can come only from a laboratory capable of determining that type of potency — a category which apparently excludes most, if not all, of the crime labs in Texas right now,” stated an advisory released by the Texas District and County Attorneys Association last month.

A spokesperson for the Texas Department of Public Safety, which runs more than a dozen state crime labs to conduct forensic testing, including drugs, for local agencies said it does not have equipment, procedures or resources to determine the amount of THC in a substance. Some involved in the hemp legislation have countered that there is already available equipment to test suspected drugs, even if it isn’t in most crime labs.

Still, top prosecutors from across the state and political spectrum — from Harris to Tarrant counties — have dismissed hundreds of pending marijuana charges since the law was signed by Republican Gov. Greg Abbott and immediately went into effect on June 10. They have also signaled they won’t pursue any new charges without testing a substance to indicate if there is more than 0.3% of THC, the now-legal limit to distinguish between hemp and marijuana.

“In order to follow the Law as now enacted by the Texas Legislature and the Office of the Governor, the jurisdictions … will not accept criminal charges for Misdemeanor Possession of Marijuana (4 oz. and under) without a lab test result proving that the evidence seized has a THC concentration over .3%,” wrote the district attorneys from Harris, Fort Bend, Bexar and Nueces counties in a new joint policy released Wednesday morning.

So basically, some counties are now refusing to accept low-level pot cases out of concern that they would not be able to prove them at this time; Harris County is one of them. Others will carry on as usual and see what happens, while DPS is now pushing to get the lab equipment they would need to adjust to this change. I think in the end that the prosecutors will figure out how to adjust to this, and at some point the lab equipment will catch up, so in a few months things will return more or less to normal. I mean, I’d be happy if they all just decided this was a better state of affairs and adopted the stance that this change was permanent. But that’s not going to happen.

Some things are worth paying more for

How much would you pay for fewer faulty convictions?

Prosecutors say the state’s new Michael Morton Act, a measure designed to prevent wrongful convictions by forcing district attorneys to be more transparent in criminal cases, is driving up evidence costs.

“That is an issue for a lot of folks,” said Rob Kepple, executive director for the Texas District and County Attorneys Association.

Kepple says prosecutors will have to hire more people and invest in better technology to streamline the release of documents to criminal defense lawyers.

Lawyers on both sides of the criminal courtroom say the Michael Morton Act — named after an Austin man who spent nearly 25 years wrongfully imprisoned for his wife’s murder — has raised awareness of the importance of sharing evidence. Prosecutors, however, are concerned about the cost to taxpayers of reproducing reams of information. And defense lawyers worry that some prosecutors could use the law to keep some evidence away from them.

Kepple said that he’s heard from several counties that “documentation has been a strain.”

The new law requires Texas prosecutors to release all “exculpatory” evidence — information that could prove a defendant’s innocence — to defense attorneys. That means a lot of copying costs and document storage and delivery concerns for Texas prosecutors and the law enforcement agencies who investigate crimes, Kepple and others said.

[…]

In 1963, the U.S. Supreme Court decided in Brady v. Maryland that prosecutors must produce “exculpatory” information that points to the innocence of a defendant.

But in Texas, prosecutors had been responsible for deciding which information would be considered exculpatory. A Texas Tribune investigation found that among 86 overturned convictions from 1989 to 2011, in 17 cases courts found that prosecutors failed to give defense lawyers exculpatory evidence.

“The Michael Morton Act has codified Brady,” said Kathryn Kase, executive director of the Texas Defender Service, which represents defendants facing the death penalty.

All due respect, but prosecutors need to suck it up and follow the law here. I guarantee, whatever the cost of complying with the Michael Morton Act, it’s a lot less than the cost of locking up an innocent person, whether that person is subsequently exonerated or not. The criminal justice system is never going to be perfect, but the Michael Morton Act is a step in the direction of making it better. It’s worth the extra cost on your county’s DA office. Grits has more.

Counties are skirting the state on gambling, too

When eight-liners are outlawed, cities and counties will tend to look the other way rather than try to deal with enforcing the laws against them.

Some of the money has arrived at the Duval County building in five-figure money orders or checks. But much of it has been in cash. This past April, county Treasurer Robert Elizondo took delivery of $33,700, most of it in hundreds and twenties.

“It’s very exciting to count all those twenties,” he said. “I’m going to be a bank teller after this; I’ve got the training.”

The money began pouring in soon after this sparsely populated county 90 miles west of Corpus Christi decided last summer to start charging an $800 licensing fee for each so-called eight-liner amusement machine inside its borders.

So far this year Duval County has collected just under $600,000 (about a quarter of it in cash), an amount equal to nearly 9 percent of its $7 million yearly budget.

More is expected; over Labor Day weekend, a sprawling new room with hundreds of eight-liners opened just outside the county seat of San Diego.

It could be the local government success story of the year: Confronted with a struggling economy and stagnant tax revenues, entrepreneurial officials in a county perhaps best known for its rich history of graft and political corruption uncover a lucrative new source of revenue.

But there’s a small catch.

“Of course the machines are illegal, as I understand it,” said Jo Ann Ehmann, the part-time bookkeeper for the tiny city of Gregory.

[…]

Texas’s eight-liner statutes are a mess. In their attempts to parse the differences between “amusement” and “gambling,” and determine the point at which jackpots become morally impermissible, lawmakers have rendered the statute all but unenforceable.

“The state’s definition of a gambling device is lengthier than the definition of murder,” said Shannon Edmonds, head of governmental relations for the Texas District and County Attorneys Association. “In the real world, if you want to make something clearer, you simplify it. This was drafted by people who wanted it to be vague.”

Even those willing to plunge into an anti-eight-liner campaign find the deck stacked against them. Mounting an undercover operation takes weeks or even months of dedicated police time. Prosecutions cost money that could be spent pursing more serious crime — in all, “about $50,000 of taxpayer money to shut down an establishment,” Simpson estimated.

Tiny rural jurisdictions face their own unique hurdles. For example: How to initiate a covert operation when everyone knows all your police officers?

“As soon as one of our officers walks in, he’s recognized,” admitted Robert Brake, who, as chief of the Gregory Police Department, oversees two officers. With only one typically working at a time, Brake said, he hasn’t expended a lot of effort investigating the game rooms: “We stay pretty busy with accidents and thefts and so on. I don’t have the time.”

Any parallel to the Medicaid expansion situation is of course entirely coincidental. I have as you know some conflicted feelings about gambling, and I think unregulated gambling is even more problematic, since there’s no mechanism to protect customers from getting ripped off, but it’s easy to see this from the point of view of these small jurisdictions. There’s no upside to cracking down on the eight-liners, while taxing them provides a much-needed revenue source in tough times. What else would you expect them to do? One way or another, this is a problem for the state to fix. Just don’t expect it to happen any time soon.

Report: Most elected officials refuse to contribute to their own prosecution

That’s what the headline to this story should read.

Public records examined by the Austin American-Statesman show that most elected officials who have been stopped on suspicion of driving while intoxicated in recent years have declined to consent to a blood or breath sample.

The newspaper reported Sunday that it turned up cases involving more than a dozen elected officials in Texas — including representatives, senators, judges and commissioners — in which police on the scene asked for a sample to determine whether the driver’s blood-alcohol concentration exceeded the 0.08 legal limit.

Except for two cases, both of which occurred outside the state, the politicians refused, the paper reported.

“Among the general public, the refusal rate is about 50 percent, but at the Capitol, the refusal rate is about 100 percent,” said Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association.

[…]

“Many people refuse to blow; it’s a growing problem in Texas,” said Karen Housewright, executive director of Texas Mothers Against Drunk Driving. “But we like to think our elected officials would behave as role models and hold themselves to a higher standard.”

That’s one way of looking at it. Another is to note that most elected officials are knowledgeable enough to realize that breathalyzer tests have high rates of error, and consenting to take the test can only help the prosecution. Which, despite the fulminations of MADD and the TDCAA and Williamson County DA John Bradley is not something that anyone accused of a crime is required to do. In fact, as the original story notes, all of the elected officials in recent years who had been pulled over for DWI and refused to take the breathalyzer test wound up either being acquitted or having the charges dismissed. With a track record like that, who among us wouldn’t do the same?

Now, if you want to argue that there’s a certain hypocrisy here, especially with state legislators who routinely vote to get tuff on crime as long as it applies to someone else, I won’t dispute that. But as long as we still have the freedom to not make it any easier for the state to prosecute us, I don’t have any objection to those who exercise that freedom.