Expecting Pot Penalties to Decrease? Slow Your Roll

EL PASO — It was not long after Gov. Rick Perry’s remarks that states should enact their own marijuana laws that social media sites began wondering if the theory of relativity was a sham or whether Pink Floyd’s estranged founder would finally rejoin the band.

“Don’t be surprised when gravity partially reverses itself so people can fly and doctors finally find a cure for death,” Law Enforcement Against Prohibition, a group seeking change in American drug policies, posted on Facebook in response to Perry’s comments at the World Economic Forum in Davos, Switzerland. Perry spoke on a panel on incarceration, where he reiterated his support for Texas’ drug courts, which were created in 2001 and are an alternative to prison for drug-related convictions.

The surprised reactions from supporters of marijuana decriminalization or legalization underscore the fact that Texas’ marijuana laws are considered less severe than the state’s tough-on-crime reputation suggests. Despite the attention that Perry’s comments drew, criminal justice analysts do not expect Texas to decriminalize marijuana anytime soon.

Perry’s staff said the governor’s remarks were consistent with his stated positions.

“Gov. Perry is opposed to the legalization of marijuana, but as a staunch defender of the 10th Amendment he believes states should have the right to decide issues like this,” a spokesman, Rich Parsons, said in an email.

“The governor does support the system of drug courts in Texas that have proven successful in diverting those who qualify away from incarceration and into rehabilitative programs that reduce recidivism and help people end their drug use.”

Currently, possession of up to two ounces of marijuana is a Class B misdemeanor, punishable by up to 180 days in jail and a $2,000 fine. People deemed nonviolent offenders can qualify for drug court diversion programs, which consist of supervision, frequent drug testing and treatment programs.

Ethan Nadelmann, the founder and executive director of the Drug Policy Alliance, a pro-change research group focused on criminal justice issues, said it was unlikely that Texas legislators would change the state’s marijuana laws at their next meeting, in 2015.

“They are headed in the right direction, but still way behind the curve,” said Nadelmann, whose organization supports decriminalization. He also conceded that legalization in the states of Washington and Colorado had happened faster than expected. That, and Texas’ reputation as a trendsetter, could speed up change.

Marc Levin, the director of the conservative Texas Public Policy Foundation Center for Effective Justice, has supported legislation filed by state Rep. Harold Dutton, D-Houston, that would make possession of up to one ounce of marijuana a Class C misdemeanor, punishable by a fine of up to $500.  The bill cleared a House committee but was not considered by the full chamber. Still, Levin is optimistic.

“We’ll see next session whether the Legislature is ready to do that, but I certainly think there is momentum for drug possession offenses,” he said. It could also come down to something as simple as branding.

“I think the misunderstanding comes from the ‘decriminalization’ word because, for example, if the Dutton bill passed, it’s still a Class C misdemeanor,” he said. “It’s still basically a criminal offense, and if you don’t pay it, then a warrant is issued.”

Opponents of decriminalization or legalization argue that it would send a message that marijuana use was safe. There is also no means to test drivers to determine how affected they are, said Lon Craft, the legislative affairs director of the Texas Municipal Police Association.

“TMPA’s position is that we are opposed to any steps to legalize or decriminalize the use of marijuana due to our concern for public safety,” he said in an email.  “We are concerned that either step would lead to more impaired drivers on the road and law enforcement not having any effective tools for combatting that problem.”

Opponents also cite the gateway theory, saying marijuana use leads to the use of harder drugs. 

Though Perry, the state’s longest-serving governor, is likely to wield some influence even after he leaves office in 2015, a new era of leadership will affect the debate. The likely candidates, Attorney General Greg Abbott, a Republican, and state Sen. Wendy Davis, D-Fort Worth, have emphasized their positions on different aspects of the issue.

“Senator Davis believes that we as a state need to think of the cost of incarceration for small amounts of marijuana,” Rebecca Acuña, a spokeswoman for the senator, said in an email. “Senator Davis personally believes medical marijuana should be allowed but thinks Texans should be the decision makers on the matter.”

Abbott said that he supported current laws but that legalization was not an option.

“His goal would be better enforcement and compliance without stocking prison beds with nonviolent offenders,” a spokesman for Abbott, Matt Hirsch, said. “He believes the best methods of combating illegal drug use include a combination of medical treatment and criminal enforcement. Legalizing drugs would encourage drug use, which affects every sector of society.”

Levin said polling by the Texas Public Policy Foundation showed that most Texans, including many Tea Party Republicans, favored change.

“From the original conception of the Tea Party, the main focus was on debt and on government spending and taxes,” he said. “Obviously, for those of us that do want smaller government and less taxes, you can’t really ignore the cost of corrections.”

But others contend that polling will not change an entire culture, which they say is what is needed.

“With respect to marijuana and other drugs, we have a century of antidrug propaganda, much of it fraudulent, and it’s hard to overcome that,” said Bill Martin, a professor emeritus of religion and public policy at Rice University. 

Speaking events like Rotary Club gatherings, Martin said, turn into impromptu confessionals for conservative Texans.

“It’s not at all uncommon after I speak for people to come and say, ‘I really agree with you, but I may be the only one here,’” he said. Then others follow suit.

Though Perry is leaving the governor's office, his remarks could spur more people to talk about the issue, said Cheyanne Weldon, the executive director of the Texas chapter of the National Organization to Reform Marijuana Laws.

“It’s very positive for us. It allows some of these people who weren’t willing to take any stance and it opens the door for them,” she said. “We’ve been creeping up on the things that people agree on or are willing to talk about.”

Even if a law were passed, it would not necessarily mean sweeping change. In 2007 Texas passed a measure that allowed local governments to adopt a cite-and-summons approach for certain misdemeanors, including marijuana possession, instead of immediate arrest and booking. It is not widely used, however, because of local resistance, Levin said.

That bill was supported by the Texas chapter of Mothers Against Drunk Driving, which said it hoped the bill would allow police officers to focus more attention on catching more dangerous drivers. Other argued that it was a local-control measure, which would let local governments decide how to use their resources.

“Some of the prosecutors don’t want to see this implemented, but hopefully we can come back next session and clarify the language,” Levin said.

Nadelmann said other laws masked how hard Texas could be on marijuana offenders, mainly because of probation and parole violations.

“Maybe they get caught with a joint — something that would be treated as a slap on the wrist or a couple of days in jail,” he said. “But they’re being incarcerated in state prison. Nobody says they’re being incarcerated for marijuana. Technically they are incarcerated for whatever they are on probation for, like petty theft.”