By Katie Neill Harris and Bill Martin
Since 1989, possession of fewer than two ounces of marijuana has been aClass B misdemeanor in Texas, with possible penalties of 180 days in state jail, a $2,000 fine and, most damaging, a criminal record.
In recent years, at least 22 states have adopted some form of decriminalization, and the four largest counties in Texas have implemented or are considering penalty reductions for low-level marijuana offenses.Gov. Greg Abbott and both major political parties in Texas have expressed support for reducing penalties for marijuana possession, and a June 2018 University of Texas/ Texas Tribune poll found that 69 percent of registered Texas voters agree with them.
Translating that support into sensible policy can and should happen in the current session of the Texas Legislature.
House Bill 63, introduced by state Rep. Joe Moody, D-El Paso, would make possession of one ounce or less of marijuana a civil offense, much like a traffic ticket, liable to a monetary penalty of up to $250 and no criminal record. Other measures to reduce penalties for marijuana possession have been introduced this session, but HB 63 is the only one that removes criminal penalties entirely.
Marijuana is a psychoactive drug whose use, especially heavy and frequent use, entails risk and can cause substantial harm, as does frequent and heavy use of alcohol and numerous other legal drugs. The fears that arise when considering any departure from the failed policy of prohibition are understandable, but their relevance is primarily in the context of legalization of a commercial market for marijuana, modeled after the market for alcohol and tobacco.
Three common fears about decriminalization are that it would lead to increased adolescent use and positive attitudes toward marijuana, increased crime and increased drugged driving. The best available facts should allay those fears.
Studies of various measures of the impact of decriminalization on adolescents have produced conflicting results, some showing no impact, others finding small increases in use or positive attitudes. A study funded by the National Institute on Drug Abuse found that, in five states that had recently decriminalized possession, there was no relationship between the law change and past-month marijuana use among high school students. There is no reason to think Texas would see a spike in use.
Regarding crime, a major literature review by the RAND Corporation for the White House Office of National Drug Control Policy found “little support for a contemporaneous, causal relationship between its use and either violent or property crime.” Similarly, a 2014 peer-reviewed analysis found no statistical relationship between marijuana decriminalization and property or violent crime rates.
Some states that have legalized marijuana for adult use are seeing an increase in marijuana DUIs, but because THC (the primary intoxicant in marijuana) can be detected in a blood sample long after any impairment has ended, reported rates of DUIs are likely to be inflated. Other data show that most THC-positive drivers involved in fatal crashes test positive for alcohol, other drugs or a combination of both. Trends in legalization states are not valid predictors of the effects of decriminalization, but a 2017 study published in the American Journal of Public Health found changes in vehicle crash fatality rates for Washington and Colorado three years after they legalized adult recreational use were not statistically different from those in similar states without such legalization. That said, though alcohol poses a greater threat to safety, driving while intoxicated on marijuana is not safe and should be subject to stringent enforcement of DUI laws.
It is not enough to assert that decriminalization will not be as bad as feared. It also provides significant tangible benefits. More than 62,000 people were arrested for marijuana-related offenses in Texas in 2017, 97 percent of them for simple possession. Decriminalization would reduce arrests and the collateral consequences of a criminal record.
It would also lead to more just enforcement of the law. Despite similar use rates, blacks are roughly three times more likely to be arrested for marijuana possession than whites and 10 times more likely to be incarcerated. With decriminalization, fewer people of color will become ensnared in the criminal justice system.
In addition, decriminalizing low-level marijuana possession would greatly reduce costs to arrest, process and jail defendants; provide taxpayer-funded legal counsel to indigent defendants; and incarcerate convicted offenders or monitor them during probation. Decriminalization could also improve resource allocation for drug treatment. An estimated 75 percent of people arrested for marijuana possession do not need treatment. Imposing treatment on them unnecessarily complicates their lives and uses resources better focused on people with real needs.
Decriminalization is not a perfect policy. It fails to address the needs of people who can benefit from this extraordinarily complex plant’s medicinal properties, and it leaves production, distribution and tax-free profits in the hands of criminals. But it is a sensible and conservative policy that does not increase access to marijuana or allow advertising for its use. With HB 63, the Texas Legislature can enact a statewide policy that is fiscally prudent, politically popular and socially just.
Harris, Ph.D, is the Alfred C. Glassell, III, fellow in drug policy at the Baker Institute at Rice University. Martin, Ph.D., is the Harry and Hazel Chavanne senior fellow in religion and public policy at the Baker Institute and the Chavanne emeritus professor of sociology at Rice University. He also directs the institute’s drug policy program.