Last week, Sharen Wilson delivered a message to people arrested or cited in Tarrant County for possession of 2 ounces or less of marijuana: “If I can just get three consecutive months of sobriety,” Wilson said, "I’ll dismiss that case."
To get the charges dropped, all a person needs to do is pass three drug tests in three months to prove they’re staying sober. Dropping the charges in exchange for a sober stint is worth it, the prosecutor said, because the goal is rehabilitation of people “hooked on marijuana.”
“Ninety days of sobriety is long enough to get it out of your system and start thinking clearly,” she said. “What are your goals when you have not been smoking marijuana for your entire life daily?”
A Shifting Approach
It’s not a new policy, but in the year and a half it’s been policy in her office, only a few dozen people have gotten their charges dropped, Wilson said. That’s in a county where thousands of people are charged with this Class B misdemeanor, so Wilson wants to drum up awareness.
Possession of less than 2 ounces of marijuana is the lowest-level drug possession offense under Texas law, punishable by up to 180 days in jail and a $2,000 fine. The Tarrant County District Attorney’s office charged more people with it than any other offense in 2019.
“This seems like a program that’s easy for everybody,” Wilson said.
Wilson was talking up the marijuana dismissal policy just weeks after announcing a new policy, one for more serious drug possession cases but with the same basic idea: Get clean, and get your charges dropped.
It’s called the Deferred Prosecution Initiative, and it’s for people 25 and older who have no criminal record. Fifteen drug crimes qualify, from Class A marijuana possession (that’s 2 to 4 ounces of pot) to possession of up to 4 grams of ecstasy, LSD, amphetamines or THC in the form of edibles, vape pens, cigars, waxes or oils.
If approved for the program, defendants agree to stay sober and out of trouble for six months, take a class, and pay a $300 fee in order to get their case dismissed and record expunged.
A Larger Trend
Across Texas, prosecutors in big urban counties have been embracing approaches to marijuana and other drug crimes intended to divert people away from jail and prison.
In Dallas County, first-time misdemeanor marijuana cases are dismissed automatically. In Harris County, most people caught with small amounts of marijuana are given a ticket and can get the case dropped if they take a 4-hour class, avoiding an arrest record. In Bexar County, people caught with less than an ounce of pot aren’t charged with a crime at all.
Some police departments in Texas are also shifting away from arresting people caught with small amounts of marijuana and moving toward issuing citations instead.
Heather Fazio, from the pro-legalization group Texans for Responsible Marijuana Policy, said Wilson’s policies stopped short of some other district attorneys, but counts Wilson as part of a larger trend toward a re-evaluation of American – and Texan – drug policy.
“We’re recognizing that these laws aren’t working,” Fazio said. “They aren’t working for law enforcement. They aren’t working for prosecutors, they aren’t working for the tens of thousands of people across our state who are arrested annually.”
Texans are increasingly open to loosening marijuana laws, and Fazio is hopeful the Texas Legislature will seriously consider legalizing the drug. If pot is legal, it can be taxed, and that would generate much-needed revenue at a time when the state’s facing a $4 billion budget deficit, Fazio suggests.
That’s all beyond the authority of a district attorney, Wilson said. She was elected to enforce the state’s laws, she likes to say, and so she’ll continue to file charges for people arrested in possession of marijuana or other drugs as long as possessing them is illegal.
“But I do, as a prosecutor, have the discretion about what the proper sentence should be,” Wilson said. “One of the goals of the criminal justice system, right there in the penal code, is the rehabilitation of the offender. And for me, after 24 years as a criminal judge and as a DA, there is no better first step to rehabilitation than sobriety.”
That is an outdated view of addiction, said Katharine Harris, who researches drug policy at Rice University’s Baker Institute for Public Policy. Reducing drug use doesn’t necessarily increase public safety, she said, and being arrested for drug possession is not an effective measure of a substance abuse disorder.
“You are more likely to be arrested for marijuana if you are poor or if you are Black and Latino. And if you look at the data on drug use, there are not differences in drug use by race or ethnicity,” Harris said. “The primary factor there is not the severity of the drug use, but has much more to do with where you are, where the police are, and whether you are Black or brown.”
And, more fundamentally, law enforcement is not an effective way to address drug addiction; it should be addressed as a health issue. Instead, she argues, drug treatment, counseling, and other social services that support a healthy and productive life would be a more effective use of taxpayer dollars and rehabilitating people who are addicted to drugs.
A Mixed Response
Defense attorneys in Tarrant County expressed optimism about better alternatives to jail or other punitive approaches to drug possession. But they were mixed about the specifics on the policies.
Benson Varghese, a defense attorney and former prosecutor, said he’s concerned that, as a condition of getting into the Deferred Prosecution Initiative, a defendant has to waive the right to get a lab to test the drugs they’re charged with possessing.
“It sounds great, on one hand, but the right that you’re giving up to not test the drugs is a very important right that every defense attorney has to consider,” Varghese said.
It’s especially important, Varghese argued, because of legal changes to state law regarding cannabis products last year, when Texas legalized hemp and hemp products while leaving marijuana and its derivatives illegal. Hemp and marijuana come from the same cannabis plant, so now, prosecutors have to actually prove that the marijuana in marijuana possession cases is, indeed, marijuana.
The legal change made marijuana-related prosecutions more complicated and costly, and opened up a line of attack for defense attorneys. The lab testing procedures to prove marijuana or its derivatives are, indeed, marijuana are still unsettled science, Varghese said, making it risky to sign away a client’s right to get the drugs tested.
“You don’t want to end up with a situation where your person didn’t get clean as expected, and two months into the program, they get kicked out, and now you’ve given up the right to test the substance that they purportedly possessed,” Varghese said.
MarQuetta Clayton, a Fort Worth defense attorney said the upside of the program is that people can walk away with a clean record if they do complete the program, avoiding an arrest record and a conviction that can be a barrier to finding a job and other life opportunities.
“The expunction part is my number one on these kinds of programs, because it’s the criminal history that traps a person for the rest of their lives,” Clayton said.
Both Varghese and Clayton say they’re very happy that District Attorney Wilson is working to get the message out about the marijuana dismissal policy, because until now, it’s been hit or miss trying to get a deal to settle those cases. Clayton said that, in her experience, some of the prosecutors in Wilson’s office were willing to drop a Class B marijuana possession charge for a few months of sobriety, but others would play hardball. Now, she hopes they’ll all work from the same playbook.
“I would just hope that that turns out to be something across the board for the DA’s office, not just hit or miss based on which prosecutor you sit down in front of,” Clayton said.
Got a tip? Christopher Connelly is KERA's One Crisis Away Reporter, exploring life on the financial edge. Email Christopher at cconnelly@kera.org.You can follow Christopher on Twitter @hithisischris.
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