Where did Biden’s pardon of marijuana charges leave the hundreds of Texans imprisoned?

President Joe Biden pardoned federal marijuana possession convictions in early October, asking state governors to do the same. Where did that leave the hundreds of Texans imprisoned on state marijuana possession charges?

Still behind bars. In fact, the White House said no one is in federal prison on marijuana possession charges.

“These cases tend to be overwhelmingly filed in state courts,” North Texas criminal defense attorney Benson Varghese said.

Texas arrests the most people of any state for marijuana possession even though only a small percentage of those arrested end up in prison. However, both convictions and arrests can have lifelong ramifications, especially for people of color and young people who experience arrests at higher rates in a state where most people — including the governor — think marijuana should be decriminalized to some degree.

As of Oct. 21, 265 people are serving prison time in Texas on state marijuana possession charges, according to data provided by the Texas Department of Criminal Justice.

That figure represents people imprisoned only on possession charges and not concurrent charges of other types of crime. It also does not include people serving sentences on misdemeanor charges in county jails.

According to the Texas chapter of the National Organization for the Reform of Marijuana Laws, over 21,000 people were arrested on marijuana possession charges in Texas last year, more than any other state. Possession arrests account for about 97% of all marijuana-related arrests, Texas NORML found in its study using FBI data.

Of the 265 current inmates, 56 people were charged only with possessing marijuana in the range of more than 4 ounces and less than 5 pounds.

Of the current inmates, 136 were committed in the last five years, many because of probation or parole violations, a TDCJ spokesperson said. Three people are serving sentences from convictions in the 1990s.

Texas NORML executive director Jax James called the inmate figure “infuriating.”

“That causes real collateral consequences and it affects people for their life,” she said.

A record of drug possession commonly decreases an offender’s chances of getting jobs, housing and education.

The category resulting in the most imprisonments is the 50- to 2,000-pound range.

While possession arrests are the largest number of marijuana-related offenses, Texas also has a charge called delivery or manufacturing of substances. Criminal defense attorney Varghese, who practices in Dallas and Tarrant County, said he commonly sees cases involving over 50 pounds of marijuana filed using delivery or manufacturing charges.

“Now those cases are sometimes pled down to just possession charges, because that’ll drop it by one level, and the punishment range goes down,” he explained.

“The other numbers are a little bit more surprising,” he said.

Varghese said jurisdiction matters quite a bit in Texas, where large urban areas treat marijuana possession differently than conservative counties do. That difference could explain some of the incarcerations for small amounts of marijuana.

“Certainly there are going to be some jurisdictions within Texas where the jury pool is not going to tolerate any drugs, including marijuana,” he said.

Possessing even small amounts of marijuna in a drug-free zone, such as a school, increases the chances of harsher prosecution. Sixteen people are incarcerated in Texas on these charges.

Another roadblock to Biden’s request that state governments follow his lead: Pardons in Texas must come through the recommendation of the Texas Board of Pardons and Paroles before the governor can grant clemency.

Arrests vs. jail time

Although Texas arrested 21,000 people on possession charges last year alone, Varghese explained most marijuana arrests are misdemeanor cases.

“What ends up happening in most cases is certainly something other than jail time,” he said. “To go to jail on a marijuana offense, you really have to be doing something wrong.”

Arrests, especially for first-time offenders and youthful offenders, usually end in dismissal, fines, deferred adjudication or probation. Bond violators, repeated offenders, offenders unwilling to attend diversion programs or people with “lengthy” criminal histories are more likely to face prison time, Varghese said.

“Ultimately, it’s not the crime of the century whether it’s a misdemeanor or felony,” Varghese said.

In misdemeanor courts, charges for driving while intoxicated and assault tend to take precedence over marijuana cases when resources and testing funds are limited.

After Texas legalized hemp, the plant that CBD is derived from, in 2019, it became necessary to test substances for THC levels before prosecuting charges. This led to a drop in arrests, prosecutions and convictions.

Over 64,000 people were arrested on possession charges in 2017, according to NORML. A sharp drop to around 45,000 followed in 2019, the same year hemp was legalized. NORML obtained the data from the FBI and verified it with the Texas Department of Public Safety, but the group said slight discrepancies may arise because the FBI has changed its data tracking system.

And in felony cases, higher courts tend to prioritize high level cases.

“No one I knew that specialized in narcotics prosecution was bragging about the people they sent to prison for marijuana,” said Richard Alpert, a former assistant criminal district attorney of Tarrant County and founder of Baylor Law’s Criminal Law Bootcamp.

While drug busts often include marijuana, drugs such as cocaine and heroin are usually what interest prosecutors.

Additionally, Texas politicians on both sides of the political spectrum, including Gov. Greg Abbott, have indicated support for deprioritizing low-level offenses.

“The prevalence of the viewpoint that it ought to be decriminalized, if not legalized, has reached the mainstream,” Alpert said.

Jurisdiction

Various authoritative offices across North Texas have taken steps in recent years to soften marijuana law enforcement.

Dallas County District Attorney John Creuzot’s office stopped prosecuting misdemeanor marijuana charges in January 2019.

The Dallas Police Department stopped making arrests for small amounts of marijuana (less than 2 ounces) in 2021, after a report found people of color made up a disproportionate amount of the department’s arrests.

Plano police stopped arresting people caught with less than 2 ounces of marijuana, or a Class B misdemeanor in 2019, and instead began issuing citations with maximum penalties of $500.

Texas law also grants police officers the discretion whether to arrest low-level offenders or issue a citation and release.

In the city of Denton, voters will decide whether to adopt Proposition B in a few weeks, an ordinance that discourages city police from making marijuana arrests and citations, and would direct city funding away from testing substances.

Enforcement disparity

Calls for decriminalization often stem from the historic disparity of enforcing cannabis laws across race and ethnicity.

A 2020 ACLU report showed Black people were nearly 3 times more likely than white people to be arrested on marijuana possession charges in Texas.

And while overall possession arrests in Texas are down from five years ago, the percentage of arrests for Hispanic and Black people rose in the same time period. Texas NORML found the overall share of arrests from 2017 to 2021 rose 2.5 percentage points for Hispanic people and 5.9 percentage points for Black people.

By contrast, the percentage of white people in total arrests fell 7.6 percentage points.

Young people are another category heavily affected by marijuana possession arrests. NORML data shows that nearly half of all marijuana possession arrests in Texas among people 17 to 24 years old.

“This group is also more likely to interact with law enforcement, consume in non-private places, and make frequent low-level purchases of cannabis,” NORML deputy director Paul Armentano said in an email.

Texas NORML executive director James said having a drug record at a young age can become a serious roadblock, especially to receiving and completing a higher education. A record can affect scholarships, campus housing and enrollment, on top of putting one at risk of losing a driver’s license and creating trouble with potential employers and landlords, she said.

“It’s ridiculous that something Texas has recognized as of medical value is something that people are actually in jail for right now,” James said.

Medical marijuana is legal to a certain extent in Texas, as eligible residents can access low-level THC cannabis. Possession of up to 2 ounces is a Class B misdemeanor, and possession of more than 4 ounces is a felony.

Any amount of cannabis concentrate, commonly found in products such as edibles, gummies, THC oils and dab pens, is a felony in Texas.

Where do candidates stand?

Abbott has proposed reducing the criminal penalty for marijuana possession to a Class C misdemeanor in the past, a position he affirmed in May.

Democratic gubernatorial candidate Beto O’Rourke vowed to legalize marijuana and expunge the records of those arrested for possession after Biden’s announcement.

The Texas Legislature expanded the state’s medical marijuana program last year, and some lawmakers are pushing for further policy change when it convenes again in January.

A recent poll from The Dallas Morning News and the University of Texas at Tyler found 83% of Texans — both Democrats and Republicans — support legalizing medical marijuana in the state. Sixty percent of those polled supported legalizing the drug for recreational use.

James, with NORML, said the conversation about cannabis in Texas has changed as politicians have expressed support for decriminalization to various degrees. She said, “We need to be smart with our police time. We need to be smart with our taxpayer money.”