It’s no surprise whatsoever that the excessive arresting, and specifically the prosecution of low-level cannabis possession, has led to widespread socio-economic issues. These range from the many social services which are either entirely inaccessible or greatly limited when a misdemeanor marijuana conviction is on someone’s criminal record, to very scattered and far fewer employment opportunities.
However, while the convoluted and generally politically unnecessary nature of the Texas Legislature makes statewide cannabis reform unlikely in the upcoming years, district attorney’s in the counties of the state’s biggest metropolitan areas have implemented sweeping prosecution reform in regards to cannabis.
In March of 2017, Harris County District Attorney Kim Ogg implemented a “Misdemeanor Marijuana Diversion Program”, where offenders caught with four ounces of cannabis or less who are facing no other simultaneous charges may take a four-hour “drug education course” instead of jail time, vehicle impoundment and the disadvantages that come from a criminal record. In December of 2017, Austin’s Travis County implemented a similar procedure but with only two ounces and Dallas County DA John Creuzot announced that first-time cannabis possession won’t be a prosecutable offense.
Bexar County District Attorney’s Office, the county which contains the San Antonio metropolitan area, recently announced equally as revolutionary sentencing and prosecution reform on the subjects of cannabis along with many other minor infractions started by newly elected DA Joe Gonzales.
For a detailed overview consisting of the exact legal knowledge needed to understand the laws and prosecution procedures being radically altered, Texas Cannabis Collective had the pleasure of speaking with Christian Henricksen, Chief of Litigation for the Bexar County District Attorney’s Office.
JK: Before DA Joe Gonzales began his term this prior January, what was the spectrum of the usual criminal penalties for low-level cannabis possession cases?
CH: The most common outcomes for a misdemeanor marijuana case have been:
- Pre-Trial Diversion
- This was generally available for first time offenders and will still be available to those arrested with over an ounce of marijuana. Pre-Trial Diversion allows defendants to complete a program under supervision without having to plea to a case and allows for the defendant who successfully completes the program to avoid a criminal record.
- Deferred Adjudication
- This is probation without a criminal conviction. This would generally be offered to a defendant who did not qualify for Pre-Trial Diversion, but still did not have significant criminal history.
- Probation
- This comes with a conviction. Generally, this would be offered to someone who has some significant criminal history.
- Jail
- Jail has not been a common outcome for a misdemeanor marijuana case, but it has occasionally happened.
JK: Because the legalities of cannabis in Texas is an incredibly confusing mishmosh of different legal penalties depending on your location within the state, please explain as exquisitely detailed as possible the new policies of Gonzales’ DA Office regarding the prosecution of low-level cannabis charges and how do these policies extend to other substances? Would small cannabis possession always remain a civil offense based on the new policies or would a certain number of civil offenses result in a criminal offense?
CH: The Bexar County District Attorney’s Office is implementing a new declination policy regarding certain drug offenses. Prosecutors will reject Possession of Marijuana cases where the quantity is under 1 ounce. Prosecutors will also reject Possession of a Controlled Substance PG1 cases when the quantity is less than .25 grams. The Administration is currently evaluating whether the declination policy should be applied to other types of drugs and, if so, at what quantity. The declination policy only applies to simple possession and does not apply to enhanced offenses such as possession in a drug free zone, delivery or possession with intent to deliver. No policy exists in a vacuum and, as a result, prosecutors do have discretion to file cases under the declination quantity if extenuating circumstances exist. If a case is filed under the declination quantity, prosecutors must document the reasons for doing so.
Finally, this policy applies to prosecution, not arrest. Nothing about this policy prevents police from making an arrest on any case where they have probable cause. The decision to reject a case based on the declination policy will not happen until a prosecutor has had the opportunity to review the case and determine that rejection is appropriate.
JK: Tell us about the new pre-trial diversion programs that Bexar County will be implementing. How could these programs help reduce both recidivism and the lifelong penalties associated with having a criminal record? Would these policies benefit those previously convicted of cannabis possession charges wanting to have their records either sealed or expunged?
CH: Pre-trial diversion has existed in various forms under the 2 prior Bexar County District Attorneys. However, under Joe Gonzales, pre-trial diversion has been changed and expanded. The major changes to the program have been:
- Conditional dismissals. Instead of requiring the defendant to complete the program while their case is pending and potentially affecting their ability to get a job, their case is conditionally dismissed once the person is accepted into the program. If the program is successfully completed, the case remains dismissed and the D.A.’s Office agrees to an expunction of the arrest.
- The Defendant is not required to enter a guilty plea or make an admission of guilt. The requirement of a plea or admission of guilt can impact a person’s immigration status or have other unintended consequences. If a reviewing prosecutor believes that such consequences are appropriate, pre-trial diversion should not be offered.
- Removal of certain barriers to admission into the program.
- The application fee was eliminated and the program fee is waived for those participants who are unable to pay.
- The application process was streamlined. The prior application process was cumbersome, took weeks to complete, and required the assistance of a lawyer. The new application process only requires filling out a form in court.
- Under the prior administration, there were strict guidelines for admission into the program that severely limited a reviewing prosecutor’s discretion to accept an applicant into the program. Now, most of these guidelines have been removed and reviewing prosecutors have been given the discretion to accept an applicant into the program when appropriate.
- As a result of these changes, admissions into the pre-trial diversion program went from 259 in the first 100 days of 2018 to 1,109 in the first 100 days under Joe Gonzales.
Over-prosecution of a first time offender for a non-violent offense can actually make that person more likely to commit a crime in the future. Our pre-trial diversion program is designed to address any underlying issues that may have contributed to an arrest without the negative consequences that can increase recidivism such as incarceration and a criminal record.
The pre-trial diversion program is not retroactive and will not impact those with previous convictions.
JK: How do you see these changed policies benefiting both the allocation of criminal justice resources and the big picture of San Antonio as a major Texan city?
CH: Every District Attorney must make decisions about how to use the resources available to the office. The resources should be focused on the prosecution of violent and dangerous criminals. The new declination policy is designed to use the limited resources of the D.A.’s Office to best provide for public safety.