Testimony for Texas House of Representatives, Criminal Justice Reform, Interim Study Committee

On October 12, 2022, Katharine Neill Harris, the Alfred C. Glassell, III, Fellow in Drug Policy, testified before the Texas House of Representatives Interim Study Committee on Criminal Justice Reform. Her written testimony, below, addresses the committee's inquiry into policies and penalties relating to drug offenses. 

Texas has some of the nation’s toughest penalties for minor drug possession. It is 1 of just 11 states that has not decriminalized or legalized cannabis in some form. Possession of less than 1 gram—a small, personal-use amount—of substances like cannabis concentrates, heroin, cocaine, and methamphetamine is a state jail felony.

In fiscal year 2021, more than 87,000 new drug possession cases were filed. Each of these cases represents an individual whose life will be altered by legal system involvement. Contact with the criminal justice system often has a detrimental impact on a person’s education and employment prospects, their physical and mental health, and their family’s wellbeing. Having a criminal record makes it harder for those struggling with addiction to receive effective treatment and it exacerbates the conditions that led to drug use in the first place.

Such consequences seem hardly worth the price when we consider that punitive drug policies do not prevent drug use. They have failed to stem the tide of drug overdoses, which are on the rise in Texas, with more drug-related fatalities recorded in the first 6 months of 2021 than all of 2020.[1] 

They also do not make the public safer. Crime is a perennial hot-button political issue, and this year is no exception. While there was a nationwide spike in some crimes following the COVID-19 pandemic, recent data suggest this trend is receding. The Texas Department of Public Safety reports that violent and property crime levels in the first 9 months of 2022 are now lower compared to where they were in 2019.[2] Still, public anxiety about crime remains high, and elected officials reasonably feel compelled to address these concerns.

But Texas’s tough penalties for minor drug offenses are counterproductive. They waste taxpayer money that would be better spent focusing on real crime. Every year, the state’s drug laws classify thousands of citizens as “criminals,” thereby obstructing their ability to be productive members of society and increasing the likelihood that they will live outside the boundaries of the law. 

Drug use and addiction are serious problems, but they are distinct from the problem of violent crime and require different solutions. We can and must make such distinctions to ensure public safety, fiscal responsibility, and legal system integrity. To move Texas toward more sensible drug policies, I offer the following recommendations:

1. Lower the penalty for possessing less than 1 gram of Penalty Group 1 and 2 substances from a state jail felony to a misdemeanor.

When lawmakers created the state jail felony penalty designation for minor drug possession, it was with the understanding that individuals with substance use disorders would be the target for these penalties, not people who sell drugs. The state jail felony system was meant to be a cost-effective and rehabilitation-based approach to drug-related offenses.[3] Instead, it is exceedingly expensive for Texas taxpayers and is associated with high recidivism rates, leading the 86th House Committee on Criminal Jurisprudence to declare it a “complete failure.”[4]

A large chunk of Texas’s criminal justice system activity is dedicated to handling state jail felony drug offenses. Drug possession cases, which most commonly involve amounts less than 1 gram, accounted for 30% of new felony cases filed in FY 2021.[5] In December 2021, 6,390 Texans were in county jails for state jail felonies, the vast majority pretrial and drug-related. The Texas Department of Criminal Justice reported having 9,496 people in custody for drug possession in FY 2021.[6] At an approximate daily cost of $60 per person, Texas taxpayers spend nearly $1 million a day to house this population.[7]

The high costs and low rewards of excessive drug penalties have led other conservative states to rethink their approach. Oklahoma, a state Donald Trump won by more than 30 points in 2020, reduced the penalty for simple drug possession from a felony to a misdemeanor in 2016. Since then, the Republican leadership has enacted additional drug and criminal justice reforms as part of its efforts to save taxpayer dollars, protect the public, and reduce recidivism. In 2022, the state reported a 12% decrease in violent crime and an 8-point reduction in recidivism compared to 2019 levels.[8]

2. Reduce penalties for possessing cannabis concentrates and exclude additives from the weight with which a person is charged.

Forty-four percent of Americans live in a state where adults are free to purchase THC concentrates on the commercial market. In Texas, possessing less than a gram of these substances is a state jail felony.

Crucially, any ingredients added to THC concentrates are included as part of the weight for charging purposes. This is how a 19-year-old named Jacob Lavoro nearly received a 10-year sentence in 2014 for possessing a pound and a half of baked goods containing marijuana.[9] More recently, in April 2022, 21-year-old twin brothers Dandre and Dante Burroughs were driving back from Colorado to Houston when they were arrested and charged with felonies for possessing cannabis edibles and held on $50,000 bail in Clay County jail.[10]

Such cases, which do nothing for public safety, illustrate the disproportionality of Texas’s penalties for possessing THC concentrates. Law enforcement in rural Texas counties also see the futility of arresting Texas residents for such offenses. In 2021 Vernon District Attorney Staley Heatly testified in support of lowering penalties for THC concentrates, stating that “’we could do something better with our resources’” than levying felony charges against people driving through town with these substances.[11]

Reducing the penalty classifications from felonies to misdemeanors for possessing personal-use amounts of THC concentrates and excluding additives from the weight with which a person is charged will improve the law’s proportionality and save taxpayer dollars spent on needless arrests and jail time. It will also be more sensitive to consumption patterns among medical cannabis users, many of whom rely on THC concentrates but risk felony prosecution due to restrictions in the state’s Compassionate Use Program.

3. Reduce penalties for possession of up to 2 ounces of marijuana from a Class B misdemeanor to a fine-only offense.

The overwhelming majority of marijuana arrests are for misdemeanor-level, personal-use amounts of cannabis flower. Such arrests are unpopular with Texans, 77% of whom support marijuana decriminalization.[12]

Marijuana arrests in Texas have already declined significantly over the last two years, due in part to the pandemic and the legalization of hemp in 2019. These developments have not adversely impacted public safety. This knowledge enhances the urgency for reform; even with the decline in prosecutions, nearly 25,000 Texans were charged with marijuana possession in FY 2021, an occurrence that is largely a function of one’s race, class, and, increasingly, geography.[13] As the state’s largest jurisdictions reduce enforcement of marijuana laws, those who will be subjected to arrest, prosecution, and a criminal record for simple possession will be disproportionately concentrated outside of the state’s urban centers.

Reducing drug penalties is not being soft on crime. It is a prudent correction to decades of failed drug policies that can save money, create a pathway to addressing addiction more effectively, and redirect law enforcement activity to solving violent crimes. As Oklahoma Governor Kevin Stitt aptly put it, we want to lock “up people we’re afraid of, not just who we’re mad at.”[14] Texans and their elected representatives are capable of making this distinction.