Texas and the United States have recently made giant leaps in progressive prosecutorial reforms in our criminal justice system. Reforms and initiatives that were once thought impossible, even as recently as a decade ago, are now becoming standard guidelines among progressive district attorneys across the United States. The most critical area for these reforms has occurred in policies involving the prosecution of low-level drug offenses, specifically, possession of marijuana cases. Possession of marijuana cases have traditionally been prosecuted aggressively by elected district attorneys and the prosecutors employed under them.
In fact, convictions, probation and even jail time were very normal consequences for this type of offense. In recent years, many counties (including Dallas County) reevaluated the necessity for prosecuting possession of marijuana cases. Rather than taking cases to trial or only offering defendants convictions and probation, prosecutors in progressive counties began considering diversion programs, community service, fines and other initiatives that would allow a defendant to have a possession of marijuana charge dismissed.
Most recently, Tarrant County prosecutors began taking initial steps that would avoid full-blown prosecutions of possession of marijuana cases. Other counties in Texas have moved rapidly towards declining to prosecute certain possession cases, while other counties have remained ardent in their prosecutions of low-level drug offenses. In June of this year, the Texas legislature passed, and Governor Greg Abbott signed into law, a bill legalizing hemp and CBD and allowing for its regulation. The bill was passed in response to a change in federal law that removed hemp as a Schedule 1 controlled substance.
Simply put, hemp is cannabis with less than 0.3% THC, which is the component most commonly associated with getting “high” when cannabis is consumed. Although the federal government took initiative in removing hemp as a Schedule 1 controlled substance, the effect of the legal change in Texas should not be understated. The change will impact thousands of criminal cases across Texas and allow prosecutors to use their discretion in evaluating the necessity of rigorously prosecuting possession of marijuana cases.
Almost immediately after passage of the Texas law, county district attorneys announced that the legalization of hemp and CBD would make it difficult for prosecutors to prove that a substance was marijuana (which has a THC component of at least 0.3% or higher) rather than hemp or CBD, which lacks the necessary amount of THC that would warrant prosecution. Normally the labs testing these substances would not be capable of establishing how much THC is in a substance. Rather, the labs would simply report on whether THC was present in the substance, which would form the basis of a possession of marijuana prosecution.
State labs are currently not capable of testing and differentiating between marijuana and hemp. Consequently, prosecutors in recent months have relied on private lab testing to prove up cases, costing several hundred dollars per case. This certainly makes one question the necessity of prosecuting possession of marijuana cases in 2019 and beyond when public opinion, cost and efficiency seem to be pointing in the other direction.
In June 2019 alone, the Tarrant County Criminal District Attorney’s Office has dismissed over 200 possession of marijuana cases that would have required lab testing. The reason for these dismissals is linked to the new Texas law and inability of prosecutors to test each and every case and prove that a substance is actually marijuana and not hemp. While Tarrant County has responded to changes in the law in determining possession prosecutions, other counties have declined to prosecute these types of cases even before the new law was enacted.
Dallas County District Attorney John Creuzot was elected in November 2018 on a reformist platform designed to put an end to mass incarceration. For first time offenders with no prior misdemeanor possession of marijuana convictions, those charges would be dropped. Even additional prosecutions of possession of marijuana cases in Dallas County would involve participation in a diversion program, and not necessarily jail time.
Recognizing the importance of smart and effective prosecution, the new Texas law is likely to continue to impact prosecutions of possession cases, although it is unlikely that was the intent of the law. The quick response by prosecutors in Tarrant County and around the state in dismissing possession of marijuana charges offers a promising glimpse into a more just and efficient criminal justice system.