The Texas House made news headlines recently after passing HB 63, the first modification attempt of the state’s marijuana laws in more than 40 years. The legislation is a step in the right direction by decriminalizing marijuana possession through reclassifying possession of an ounce or less as a Class C misdemeanor versus the current Class B misdemeanor, which carries harsher sentences. Class C misdemeanors are fine-only offenses with no jail time.
This is not legalization. Under this legislation, possession of an ounce is still a criminal offense, just a lesser crime. But Lt. Gov. Dan Patrick has made it clear that the bill is dead as he opposes any efforts to decriminalize marijuana possession, not to mention legalization.
It is unclear what his reasoning is, but facts and evidence do not seem to be part of it, because enforcing marijuana possession laws is a substantial burden to the criminal justice system.
To be clear, I am not a marijuana advocate. I am a criminal justice policy evaluator and reform advocate. The current laws governing possession of limited amounts of marijuana are ineffective, counterproductive, contrary to public opinion, and inconsistent with the scientific evidence.
Recent data from the Texas Department of Public Safety document the fact that enforcement of the state’s marijuana laws, especially those involving possession of lesser quantities, is a significant part of law enforcement activities. In the past five years, nearly 380,000 Texans have been arrested for possession of 2 ounces or less.
Nationwide, arrests for possession of marijuana account for just under 6% of all arrests. In Texas, there are dozens of counties where arrests for possession of marijuana account for 10% to 20% or more of all arrests.
Possession cases not only require law enforcement resources. They also contribute substantially to prosecutors’ caseloads and court dockets.
And enforcement of the current laws comes at a cost. The American Civil Liberties Union estimates that the criminal justice costs associated with enforcing marijuana possession laws in Texas is more than $250 million per year.
It is important to note that the vast majority of the costs and consequences of our criminal justice approach to marijuana possession is borne by local jurisdictions. Counties pay most of the costs of law enforcement, prosecutors, jails, courts and probation.
Patrick is clearly out of step with the public on this issue, including those in his own party. A 2018 public opinion poll by The University of Texas at Austin and The Texas Tribune shows that the vast majority of Texans support reducing the criminal penalties for possession of marijuana. Nearly 70% support decriminalization, including 79% of Democrats and 62% of Republicans. In fact, a 2019 UT Austin poll revealed that a majority of Texans would take it a step further and join the 10 other states that have legalized recreational use of marijuana.
Arrest, prosecution and incarceration for marijuana possession also have obvious consequences for offenders, including potential loss of income, loss of a job, loss of housing, and negative impacts on family while incarcerated.
There are also substantial consequences for the state in the form of increased recidivism. Loss of income, jobs and housing are all direct contributors to our unacceptably high rates of reoffending.
The war on drugs has been a miserable failure. Our relentless attempts to punish our way out of a drug problem has cost Texans tens of billions of dollars over the past 40 years or so. To what end? There is no evidence that our nearly unilateral focus on controlling supply by punishing those caught in possession of drugs including marijuana has worked. There is still plenty of marijuana in the marketplace.
Contrary to what some policymakers believe, the evidence does not support the conclusion that marijuana is a “gateway drug.” The vast majority of marijuana users do not graduate to harder drugs. And though it can lead to a use disorder, most commonly in the form of dependence, addiction is rare.
The current laws against marijuana need to be revised in Texas. Patrick needs to get out of the way and let the Legislature do the right thing.
William R. Kelly is a professor of sociology and director of the Center for Criminology and Criminal Justice Research at The University of Texas at Austin.