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The Case for Marijuana Decriminalization

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The Case for Marijuana Decriminalization REPORT 04.16.19 The Case for Marijuana Decriminalization Katharine Neill Harris, Ph.D., Alfred C. Glassell, III, Fellow in Drug Policy William Martin, Ph.D., Director, Drug Policy Program population that uses marijuana regularly INTRODUCTION (defined as past 30-day use) has been In 1972, a National Commission on slowly rising since 2000, long before any Marihuana and Drug Abuse, comprising state fully legalized the drug. And while establishment figures chosen mostly by teens today are less likely to use marijuana President Richard Nixon himself, issued a than their peers from a decade ago, they report declaring that “neither the marihuana continue to report that marijuana is easy user nor the drug itself can be said to to get, a trend that has held constant over constitute a danger to public safety” and the last 40 years. During this time, illicit recommended that Congress and state marijuana has flourished, increasing in both legislatures decriminalize the use and casual variability and potency. Taken together, distribution of marijuana and seek means these trends are evidence that prohibition other than prohibition to discourage use.1 has done little to reduce supply or demand Nixon, intent on pursuing his newly of the drug. Prohibition has, however, cost announced “war on drugs,” ignored the taxpayers billions of dollars, saddled millions In recent years public report and Congress declined to consider of Americans—many of them young adults opinion surveys have who will eventually stop using marijuana its recommendations, but during the found that a consistent 40-plus years since its publication, at on their own—with a criminal record, and least 44 states have acted to refashion a contributed to the racial disparities of the and increasing crazy-quilt collection of regulations, nearly U.S. criminal justice system. percentage of Texans always in the direction favored by the Opponents of reform may argue that support marijuana if not for prohibition, marijuana would be commission. The specifics vary by state, but reform, but this support most reforms have followed one of three even more available, more potent, and more formulas: decriminalization of possession frequently used. There are legitimate public has not translated into of small amounts of marijuana for personal health concerns about the effects that a legal policy change. use, legalization of marijuana for medical commercial marijuana market may have on use, or legalization of marijuana for use. But decriminalization, which would still commercial sale and general adult use. prohibit selling marijuana but would remove Opponents of marijuana reform have the negative consequences of possessing it argued that a system of prohibition, which for personal use, is a very different policy, carries possible penalties of jail time and one that arguably has little impact on use imposes a lifelong criminal record on rates or other outcomes of concern, except offenders, is necessary to keep people to reduce the collateral consequences from using marijuana. In 2017, nearly 123 associated with a criminal record. million people aged 12 or older (45 percent This paper is the first in a series of of the population) had tried marijuana at reports elaborating on issue briefs published least once and 41 million had used in the in February 2015 and February 2017 on past year.2 The percentage of the U.S. adult the same topic. Then, as now, the Texas BAKER INSTITUTE REPORT // 04.16.19 Legislature was considering several bills to when California legalized marijuana for reform marijuana laws. The goal of the 2015 medical use. In the early 2000s, states and 2017 reports was to present evidence began making small changes in marijuana about the effects of various marijuana laws—e.g., creating diversion programs for reform options, in hopes that the existing first offenders and lowering the length of research—which overwhelmingly supported jail time—that did not necessarily constitute the assertion that ending marijuana decriminalization but did have implications prohibition benefits society in numerous for the consequences of a marijuana arrest. and significant ways that outweigh potential During this time, large cities (including negative impacts—would motivate elected Seattle, Denver, and San Francisco) also officials to enact pragmatic policy reforms. started using their discretion to treat That did not happen in Texas. During the marijuana possession as the “lowest law current 2019 session, the legislature is enforcement priority,” or to reduce penalties again considering several bills that would for individuals arrested for marijuana reduce penalties for marijuana possession possession, especially first offenders. and allow legal access to medical marijuana At least 22 states have now reclassified for patients with a variety of conditions. low-level marijuana possession as fine- We present the case for reducing penalties only offenses with no prospect of jail below, and address medical marijuana in a time or as civil violations punishable with subsequent report. a modest fine but no criminal charge or record. The amounts of the drug subject to decriminalization vary, ranging from as low MARIJUANA DECRIMINALIZATION as half an ounce (Connecticut and Maryland) to just under 4 ounces (Ohio).4 Incongruities We use “decriminalization” to refer to exist. In Mississippi, for example, possessing the removal of all criminal sanctions for up to 30 grams is a civil violation with a possession of small amounts of marijuana maximum penalty of $250, but possession for personal use. We consider laws that of paraphernalia to use it—e.g., a pipe, a lower the status of the offense from a vaporizer, or a bong—is a misdemeanor with felony or misdemeanor crime to a civil a possible $500 fine and six months in a violation, like a traffic ticket, to be a form of county jail.5 decriminalization because such laws remove The ability to study the impact the criminal status of the offense. We of decriminalization on use rates and acknowledge, however, that some observers other outcomes of interest is fraught may not consider this full decriminalization with measurement challenges due to because marijuana possession is still variability in state laws and enforcement, considered a civil offense and some and an inability to determine causal links sanction, usually a fine, still exists. Policies between policy changes and individual that reduce penalties but retain the criminal behaviors and attitudes. A 2004 review of status of marijuana possession, such as a decriminalization statutes found that of the reduction in classification from a Class B to 11 states thought to have “decriminalized” a Class C misdemeanor, are not considered marijuana possession between 1973 and decriminalization. Policies that decriminalize 1978, four states still considered marijuana marijuana possession for personal use still a criminal offense. The review also found 3 prohibit marijuana sales. that 31 of the 38 states considered non- Between 1973 and 1978, 11 states decriminalized as of 1996 had provisions reduced penalties for or the criminal status for first offenders to avoid jail time. of marijuana possession. This led some This review highlights the difficulties in observers to believe the U.S. was on the differentiating between decriminalized path toward marijuana legalization decades and non-decriminalized states, yet the ago, but several cultural and political shifts majority of analyses studying the impact of halted further reforms and marijuana laws decriminalization treat it as a yes/no policy remained relatively stagnant until 1996, variable. In addition, cross-state analyses of 2 THE CASE FOR MARIJUANA DECRIMINALIZATION decriminalization typically do not account In Harris County, Texas, the Misdemeanor for large cities located in prohibitionist Marijuana Diversion Program (MMDP) took states that enact de facto decriminalization effect March 1, 2017, allowing individuals policies in their jurisdictions, an increasingly found in possession of 4 ounces or less of common practice that is likely to have an marijuana the opportunity to avoid charges, effect on some statewide measures such as arrest, ticketing, and a criminal record if they arrest rates and jail population sizes. agree to take a four-hour drug education class, regardless of past criminal history.9 Marijuana Policy in Texas While not technically decriminalization, Since 1989, possession of less than 2 ounces because the possibility of arrest remains of marijuana has been a Class B misdemeanor if a person does not take the drug class, in Texas, with possible penalties of 180 Harris County’s MMDP is one of the more days in state jail, a $2,000 fine, and most progressive programs implemented in a damaging of all, a criminal record. Since state that has long upheld prohibitionist 2005, the Texas Legislature has had the policies. As of February 2019, 8,685 people opportunity to pass a bill to reduce the had participated in the program. Of these, 51 penalty for low-level marijuana possession percent (4,467 participants) had completed from a Class B to a Class C misdemeanor it and 23 percent (1,992 participants) (thus removing jail time), and since 2015 it were in the process of completing the has had the opportunity to enact legislation program. About 25 percent of participants to remove criminal penalties for marijuana (2,212 people) had failed to complete the possession entirely and treat the offense program and have had warrants issued for 10 The available evidence like a traffic ticket.6 In recent years public their arrest. An earlier assessment of the opinion surveys have found that a consistent program found that the primary reason for provides no reason to and increasing percentage of Texans support program failure was that participants could think that Texas would marijuana reform (a June 2018 poll shows not afford the $150 payment to take the see a spike in marijuana four-hour drug education class.11 that 69 percent of registered Texas voters use or other negative 7 The district attorney’s office estimates support penalty reduction ), but this support outcomes as a result of has not translated into policy change.
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