Time for marijuana decriminalization in Texas has come, say Baker Institute experts

Neill Harris, Martin: ‘Decriminalization is a sensible, conservative policy proposal’

Gov. Greg Abbott and both major political parties in Texas have expressed support for reducing penalties for marijuana possession. A bill to do just that will come before the Texas Legislature this year, and elected officials will have the opportunity to support a policy that is “fiscally prudent, socially just and politically popular,” according to drug policy experts at Rice University’s Baker Institute for Public Policy.

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Katharine Neill Harris, the Alfred C. Glassell, III, Fellow in Drug Policy at the Baker Institute, and William Martin, the Harry and Hazel Chavanne Senior Fellow in Religion and Public Policy at the institute and director of its Drug Policy Program, outline their insights in a new report, “The Case for Marijuana Decriminalization.”

The authors use “decriminalization” to refer to the removal of all criminal sanctions for possession of small amounts of marijuana for personal use. They consider laws that lower the status of the offense from a crime to a civil violation, like a traffic ticket, to be a form of decriminalization because such laws remove the criminal status of the offense.

Since 1989, possession of less than 2 ounces of marijuana has been a Class B misdemeanor in Texas, with possible penalties of 180 days in state jail, a $2,000 fine and, most damaging of all, a criminal record, the authors said. Since 2005, the Texas Legislature has had the opportunity to pass legislation to reduce the penalty for low-level marijuana possession from a Class B to a Class C misdemeanor (thus removing jail time). Since 2015, state lawmakers have had the opportunity to enact legislation to remove criminal penalties for marijuana possession entirely and treat the offense like a traffic ticket.

This session, the Texas Legislature could decriminalize marijuana possession by passing House Bill 63 (HB 63), which would replace jail time with a maximum fine of $250 for individuals possessing up to 1 ounce of marijuana. The offense would be treated like a traffic ticket, and offenders would not be stained with a criminal record. Other measures to reduce penalties for marijuana possession have been introduced this session, but HB 63 is the only one that removes criminal penalties entirely, the authors said.

“The issue of whether and how to reform marijuana laws has garnered widespread public attention in recent years,” the authors wrote. “Decriminalization of possession for personal use has received considerably less media and research focus than legalization of commercial marijuana sales. There is some justification for this. Compared to legalization of a regulated marijuana market, there is greater consensus about the possible impacts of marijuana decriminalization, which, many experts agree, would be relatively few beyond the intended reduction in marijuana possession arrests.”

And as states continue to legalize marijuana for medical and adult sale and use, identifying the implications of these more substantial policy changes has become a more pressing issue, the authors said.

“That decriminalization has been increasingly eclipsed by debates over full legalization may contribute to the tendency among some of its opponents to conflate penalty reduction for marijuana possession with legalization of sales,” they wrote. “This is unfortunate because decriminalization of possession for personal use is a substantively different policy than legalizing the selling of marijuana in any form. A serious conversation about the potential public health consequences of creating a commercial market for marijuana is warranted. But decriminalization is a fairly modest policy proposal that does not increase access to marijuana or allow advertising for its use.”

The main goal of decriminalization is to remove the permanent damage inflicted on individual by an arrest and criminal record, and to use public resources more efficiently in the process, the authors said.

“Decriminalization is not a perfect policy,” they wrote. “Under many decriminalization schemes, people can still be arrested, and inability to pay the fines associated with civil penalties will result in incarceration for some people, most likely minorities and the poor. Decriminalization also fails to address the needs of individuals who can benefit from the plant’s medicinal properties. Its greatest flaw, however, is that as long as growing and selling marijuana remain illegal, criminals decide what and to whom to sell, and they get to keep the money, tax-free.”

The authors concluded, “Still, decriminalization is a major improvement over prohibition, one that would reduce arrests and the collateral consequences of a criminal record, reduce racial disparities in drug law enforcement and allow for more efficient use of taxpayer dollars. Research shows these gains can be had without endangering public safety or encouraging use. Decriminalization is a sensible, conservative policy proposal.”

About Jeff Falk

Jeff Falk is associate director of national media relations in Rice University's Office of Public Affairs.