The Weird Status of Weed

Is marijuana legal? Decriminalized? Still a schedule 1 drug while shops selling edibles open their doors and farms run by Big Agra grow tons of it? In Austin, Texas, the city council decided to make some changes.

The day after the Austin City Council approved a resolution to stop arresting or ticketing people for most low-level marijuana possession offenses, the police chief made clear he had no plans to do so.

“[Marijuana] is still illegal, and we will still enforce marijuana law if we come across people smoking in the community,” Chief Brian Manley said during a news conference Friday afternoon.

How could this be? Things are changing, but not necessarily in a consistent or coherent way.

The difference, according to City Council member and resolution sponsor Greg Casar, is that the council’s move now guarantees those actions will come with no penalty. Tickets will be meaningless pieces of paper, and any arrests will result in a quick release with no charges accepted from prosecutors, he told The Texas Tribune after the news conference.

“What has changed since yesterday is that enforcement, almost in virtually all cases, is now handing someone a piece of paper with no penalty or no court date,” Casar said.

Texas has a peculiar issue, arising out of a new law that redefines marijuana as hemp that “contains more than 0.3% THC.” The only problem was that nobody thought about whether they had any means for figuring out whether there was a test to make that determination.

Many prosecutors, including those in Austin’s Travis County, now won’t accept pot cases based on look and smell alone, requiring lab testing to determine THC levels before accepting a case. Such testing is not yet available in public crime labs, though some counties and cities have spent money to obtain test results from private labs.

The “trick” in Austin is that the city council doesn’t want to put its money toward new test results. While Austin has no authority to change Texas law, it holds the purse strings for its own expenditures.

The council’s resolution prohibited using city funds or personnel to conduct such testing in non-felony marijuana cases. It also directed the elimination, to the furthest extent possible, of arrests or citations for cannabis possession. As Manley also noted, the resolution clarifies it can’t technically decriminalize marijuana, since that is state law.

The puts both the police and prosecutors in an awkward position. Their jobs are to enforce and prosecute state criminal laws, and the lab testing problem aside, marijuana remains criminal in Texas. As much as the Austin city council may want to decriminalize, if not legalize, weed, that’s not within their jurisdiction.

As for their direction to police not to arrest, to prosecutors not to prosecute, combined with their refusal to fund the lab testing needed to do so, can they effectively nullify a law enacted by the state because the city doesn’t like it and doesn’t want it?

Manley said at the news conference that he would continue to review the resolution, as well as police policies.

But, he assured, “a City Council does not have the authority to tell a police department not to enforce a state law.”

As laws are being “attacked” at their weak link, whether that’s the local prosecutor who comes into office announcing that there are a laundry list of laws duly enacted by the state legislative branch that he has decided to essentially override, there has been pushback.

Philadelphia DA Larry Krasner has the state legislature redefining the scope of his authority so as to put the state attorney general in charge of prosecuting cases he refuses to handle. At the same time, judges are refusing to allow him to toss cases because he’s antagonistic to the underlying crime rather than an  exercise of discretion as to the defendant or evidence.

But the progressive prosecutor presents a problem of his own making. The shift in marijuana laws often comes from the voters by way of referendum or legislative bodies who aren’t so much rebelling as correcting a failed war on drugs that they’ve come to realize was doing far more harm than good. And maybe weed wasn’t really much different from liquor after all.

That doesn’t change the fact that there are multiple jurisdictions whose laws overlapped in ways that didn’t matter so much when they were all in alignment, but are now in irreconcilable conflict. The problems manifest in criminal laws, as in Austin, where the cops are sworn to enforce state laws that prohibit the possession and sale of marijuana, while getting paid by the city of Austin.

To add to the mess, there are the consequential problems, such as the use of the federal banking system by marijuana growers and sellers in states that have legalized weed while it remains a Schedule 1 drug on the federal level. Or consider the guy on supervised release from federal custody living in Denver who buys his weed at the corner store to ease his glaucoma, but tests positive in violation of his terms of release. Can the same act be both lawful and unlawful? Well, sure.

It may be that the laws will normalize across jurisdictions, across the nation, in time, as experience with the legalization of marijuana ends up showing that people don’t turn into raging criminals because of Reefer Madness. But even so, it will take time. On the other hand, this may not happen in some jurisdictions, and marijuana remains just as criminal as it is now, despite whatever experience is gained in other jurisdictions.

The irony here is that we’re now in this peculiar purgatory, where the same conduct that’s entirely lawful in one place is somewhat acceptable elsewhere and most assuredly criminal somewhere else. It puts the cops in an untenable position. It leaves prosecutors without direction, or worse, to their own devices. As for the public, it’s navigating a minefield where the same conduct that could produce a pleasant evening could also result in a prison sentence.

One of the most important values of law is the ability to know, before making choices, whether a choice is perfectly lawful or will put you in a cell. Law allows us to know how to conduct ourselves by giving us notice of what’s lawful and what’s not. These conflicts in law and policy may be necessary to move us from the evil weed drug war of the past, but until consistent approaches across jurisdictions are reached and put into effect, it’s still a shot in the dark.

3 thoughts on “The Weird Status of Weed

  1. Hal


    I’ve no idea how to post a link to a pc of music, but you might want to put up John Prines’ “Illegal Smile”. It’s appropriate and would probably be funnier coming from you anyway.

    Be Well,
    [Ed. Note: It’s yours, Hal.]

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