With the “Super Tuesday” just a couple weeks away, El Paso has one of the hottest and biggest races that it has seen in years. The race for District Attorney. After 28 years, the current District Attorney, Jaime Esparza, announced his retirement in July 2019, thus, opening upon the position to anyone that El Paso voters see qualified.
District Attorney Esparza will leave behind a legacy of “guilty until proven innocent.”
Now, El Paso looks forward to having a new, fresh start in the office of the District Attorney. Many policies need to be looked at by the incoming District Attorney, including family court enforcement issues, to DWI, waiver of expungement rights with Pretrial Diversion Program, and even El Paso’s biggest current case, the Cielo Vista Wal-Mart shooting, where a gunman left 22 dead and many others injured. It goes without saying, but the next District Attorney will have their hands full.
That is why I sat down with each candidate running for District Attorney to discuss an issue, that if handled sensibly, will help free up police, court, and taxpayer resources, allowing for those resources to be put to use in a more meaningful way. The issue? Marijuana.
Currently, marijuana is legal in some form in 33 states plus Washington D.C with that number expected to rise at least to 40 by the end of 2020. Whether it be for medicinal or recreational use, over 75% of the population in the United States has access to marijuana; but not Texas (unless approved for the very limited Texas Compassion Use Program).
Across Texas, we have a patchwork of policies deprioritizing misdemeanor marijuana offenses, including not arresting in some jurisdictions, dismissal of filed cases others, and some at a very minimum enforcing cite and release, but not El Paso. Whereas, after the passing and signing of Texas’ House Bill 1325 last legislative session that legalized cannabis under the 0.3% THC threshold (hemp), some jurisdictions and District Attorneys flat-out started denying cases because of the inability to distinguish hemp from “high THC cannabis” because they were unable to prove what substance that one possessed was in-fact over the 0.3% THC limit.
Remember, the burden of proof is on the state. This is the “innocent until proven guilty” thing. It’s something that El Paso’s current District Attorney has demonstrated he feels he’s not obligated to follow with his continuous prosecution of those in possession of cannabis – without ever proving by test results that a substance is or isn’t under the legal threshold of 0.3% THC. His stance is you must prove you are innocent, which is not how the justice system works at all. The burden of proof is on the prosecution.
Before we continue, I would like to point out one thing. El Paso only has Democrat candidates running for District Attorney. That means that after the primary elections on March 3rd, whoever wins, will be your next district attorney (unless there is a runoff, of course). There will be no election for this seat in November as there is no Republican contender. Early voting runs from February 18, 2020, to February 28, 2020, and the Primary Election is on March 3rd.
Back to the candidates for District Attorney. Over the last couple of weeks, I had the honor to sit and discuss marijuana policy with those who are running to be El Paso’s next District Attorney. I sat down with each candidate with 7 questions, questions that Texas State Representative Joe Moody help me come up with. Thanks, Representative Moody! I have not publicly shared any of the info that I gathered from these candidates to avoid giving any of the other candidate’s ideas as to what the other candidates’ positions were, thus allowing them to give genuine answers to the questions at hand. The candidates I sat down with were Karen Dykes, Roger Montoya, James Montoya, and Yvonne Rosales.
Before we dive into those questions and answers, remember this… This is regarding one issue at hand. There are many other issues that the District Attorney will have to deal with. DO YOUR RESEARCH. Research the candidates. I have linked all the candidates’ campaign websites where it mentions their names at first. Research. Call and/or meet with them. Go to events. Time is running down, and the person elected will be representing YOU, so get involved.
Below are the responses I received from the candidates. Some responses are direct and simple, and for good reason, the candidate wants to take the same simple approach in all areas of personal possession marijuana cases. All of the questions were geared towards personal possession amounts, or misdemeanor charges consisting of anything under four ounces. Here is where they stand:
The first candidate in the race for district attorney that I sat down with was Karen Dykes (“Dykes”). We met at a Starbucks on El Paso’s Westside to sit down and discuss her plan for taking misdemeanor marijuana offenses. Before we got to the questions, I explained a little bit about my background and why I fight to reform marijuana laws; then we touched on a little bit about her background. Dykes is a staff lawyer for Combined Law Enforcement Associations of Texas (“CLEAT”), who also carries endorsements from the Tejano Democrats, the El Paso Municipal Police Association as well as the El Paso County Sheriff’s Officers Association.
With that being said, Dykes describes herself as someone who is “very against the Drug War.” She also brought up a good thing to note, she is currently reading (or listening to, because it is an audiobook) The New Jim Crow: Mass Incarceration in the Age of Colorblindness. If you are not familiar with the title, the book is a book by Michelle Alexander, a civil rights litigator, and legal scholar. The book discusses race-related issues specific to African-American males and mass incarceration in the United States, but Alexander noted that the discrimination faced by African-American males is prevalent among other minorities and socio-economically disadvantaged populations. Alexander’s central premise, from which the book derives its title, is that “mass incarceration is, metaphorically, the New Jim Crow”.
This is a good thing. Talking with Dykes, you can understand that she understands the harm that the Drug War has caused. She can also see what the drug war has done when it comes to minorities and how the War on Drugs came about, with the government trying to criminalize certain groups of people – because you couldn’t criminalize someone for being a “hippie” or because of the color of their skin. After discussing the War on Drugs a little bit, we got down to the point. Marijuana. Here is what I asked, and how she answered:
Do you support the current First Chance Program that the DA has created for Class A and B marijuana possession? What are its strengths and weaknesses as a program? If you were to change it, how would you do that and why?
Side note: Earlier I mentioned how some answers were simple because the projected plan of action pretty much covered any question asked. Here is where that comes into play.
Dykes said that she will “not prosecute at all.” She continued by saying that she “wants to join the 5 largest counties in Texas and not prosecute personal possession cases of marijuana.”
In reality, when you qualify and opt-in for the First Chance Program, you are still being prosecuted in a sense. There are still consequences and if you don’t follow through, a warrant will be issued and a criminal case will be filed. Dykes’ approach to that, not to prosecute at all.
What is your philosophy regarding the prosecution of possession of personal use amounts of cannabis? If elected, how would you put that philosophy into action?
Dykes’ response to this was “Literally, I am not going to prosecute low-level marijuana offenses. There will be no charges ever brought up.” Dykes again affirmed that she didn’t want to prosecute those in possession of personal amounts of marijuana. It’s that simple.
Currently, El Paso residents can obtain a medical cannabis card in neighboring New Mexico if they qualify under one for the 28 approved conditions. If an individual had a valid New Mexico medical marijuana card and was complying with the program, would your office have a policy related to prosecuting those individuals? If so, what would that policy be?
Simply put, she “would not be prosecuting” these said patients. It goes back to her original stance of not prosecuting anyone for personal possession amounts of marijuana. The subject of this question and her stance relating to prosecuting personal possession amounts of marijuana brought up another question.
Author’s Note: Currently, I am a medical marijuana card holding patient in the state of New Mexico. I can go to the dispensary and purchase anything from flowers and edibles to concentrates and tinctures. Possessing THC in its concentrated form is a felony in Texas. Anytime the THC is removed from the plant, it is a felony. That means, if I go purchase a gram of something like sugar wax, I will now be in possession of something that can bring felony charges. One gram is personal use. So I asked Dykes, as a patient, if I go purchase concentrate legally at a dispensary in New Mexico, a “personal amount”, will you still be willing to not prosecute on the basis that you will not be prosecuting personal possession amounts? She replied that she would “treat it the same as, like any other personal amount, and decline to prosecute.”
That is a great stance for an incoming District Attorney if she were to win the election.
Soon, New Mexico may have a full recreational program, which would mean Texas residents could legally obtain cannabis in New Mexico for recreational purposes. Would your office have a policy related to prosecuting individuals who legally obtained cannabis in New Mexico under a recreational program? If so, what would that policy be?
At this point in the discussion, my questions become almost null and void. They become null and void simply because of her stance. She has said again and again “I will not prosecute [personal possession].”
To reiterate, if you are found with personal possession amounts of marijuana, Dykes holds a firm stance of her not prosecuting. No prosecution means no prosecution, as long as it falls under the personal possession amount of 4 ounces or less.
How would you approach pending personal use possession of cannabis cases when you are elected?
Stated easily enough, Dykes answered “I would dismiss Class A and B misdemeanors completely. When asked “how soon after being elected?”, she replied as soon as possible. In all actuality, this is a sensible policy that she supports.
In your role as a District Attorney, do you think you have any responsibility to evaluate closed cases related to personal use possession of cannabis? If so, what would that evaluation look like and what actions could you envision taking to help people clean up their record?
Dykes said that she would establish a Conviction Integrity Unit. This idea is also laid out on her website.
Conviction Integrity Unit
It is imperative that our community can count on the prosecutorial process being trustworthy. To that end, I will establish a Conviction Integrity Unit. As Curtis Cox wrote in the El Paso Times, “many prosecutorial offices are establishing Conviction Integrity Units to proactively ensure that people are not wrongfully convicted.” It is the right thing to do!
As district attorney, I would partner with the Innocence Project to review any claims of wrongful conviction.
She also stated that she can envision expunging records related to personal possession, or misdemeanor amounts, of marijuana upon a motion of the District Attorney. It seems that she may already have a plan and process laid out as she has noted this on her website as well:
Expunction (Clemency and Pardon) Unit
Have you ever known someone who was a good person with valuable skills, but he or she had a past criminal record that prevented them from being successful? In some cases, the law allows for cases to be erased from your record or expunged. The Expunction Unit would create a process wherein qualifying individuals could request an expunction through the District Attorney’s Office.
Additionally, the Expunction Unit will create a process for reviewing and supporting clemency and pardon requests, as well as other relief for long sentences that raise concerns about proportionality and fairness, or that are being served by individuals who are elderly, ill, and no longer pose a danger to the community.
On your website, you mention hemp now being legal and how different jurisdictions are handling minor marijuana cases. It has come to my attention that the Texas crime lab will have the ability to test THC percentage soon, therefore able to determine the difference between hemp and high THC cannabis. Once the Texas crime lab can distinguish hemp from high THC cannabis, will you continue to prosecute those possessing what is determined to be over the 0.3% legal limit?
Dykes’ short answer, no. Here position on this one should be no surprise if you have come across her campaign mailer in your mailbox. The mailers that were sent to mailboxes across the city mention this issue on them and her website states the following:
Misdemeanor Marijuana Cases
With the advent of House Bill 1325, hemp is now legal in Texas. Hemp is the same plant that is known as marijuana. However, hemp has less of the element that makes one high. According to the law, the plant is legal if it has .3% THC. It is still illegal if there is a greater amount of THC. That means prosecutors now must prove the THC level in order to meet their burden of proof. As such, major counties all across the state are making the logical choice not to prosecute low-level misdemeanor cases because their labs don’t have the ability to measure the amount of THC in the plant and third party labs are too costly to justify such an expense.
As District Attorney, I will join the five most populated counties in Texas, Harris, Dallas, Travis, Tarrant, and Bexar in dismissing pending minor marijuana cases and declining to prosecute such cases in the future.
The wording makes it seem as though once Texas gains the ability to distinguish hemp from cannabis with a higher concentration of THC, there may be room to prosecute, but Dykes assured me, she wasn’t interested in prosecuting personal possession, or misdemeanor marijuana cases.
The next candidate in the El Paso race for district attorney that I sat down with was Roger Montoya. Prior to all candidates announcing their bid for District Attorney, I had never heard of Roger Montoya. At least not that I can remember. A look at his website suggests that he is all for criminal justice reform. Not just reform in the area of marijuana cases, but other areas of criminal justice reform as well. Again, I asked the same questions that I had asked candidate Karen Dykes. These were his responses.
Do you support the current First Chance Program that the DA has created for Class A and B marijuana possession? What are its strengths and weaknesses as a program? If you were to change it, how would you do that and why?
Roger Montoya stated that he supports anything that keeps people out of jail for misdemeanor amounts of marijuana. He said that the strength(s) of the program is that “it gives people a chance to keep their record clean.” He also stated that the program had some weaknesses and those were that it one available to those with no previous record. Roger stated that another fault to the program is that there is a fee assessed when you chose to go into it. Roger Montoya stated that there is a fee with the program is it’s “biggest flaw.” He also stated that having any fee in such a program is “economically biased” against those who chose to use the program.
What is your philosophy regarding the prosecution of possession of personal use amounts of cannabis? If elected, how would you put that philosophy into action?
Roger Montoya putting the philosophy he stands behind would be to not prosecute ANY cases under 5 pounds. Currently, a charge for possession of marijuana over 4 ounces and under 5 pounds is a state jail felony. Roger Montoya agrees with ending the prosecution of any amount up to 5 pounds. This could be looked at as a great thing, and a small victory in the fight against marijuana prohibition and a huge deal for those that are patients in El Paso. A lot of times, patients and caregivers are the ones possessing these amounts as they make medicine that they use in large quantities.
No one should become a felon for possessing a plant and Roger Montoya seems like he is wanting to try all he can until the State of Texas and the current lawmakers decide to make a policy change.
Roger Montoya also stated that he is open to “cannabinoids in general.” I was unable to clarify if that means isolated cannabinoids, such as high THC concentrates as well.
Currently, El Paso residents can obtain a medical cannabis card in neighboring New Mexico if they qualify under one for the 28 approved conditions. If an individual had a valid New Mexico medical marijuana card and was complying with the program, would your office have a policy related to prosecuting those individuals? If so, what would that policy be?
Roger Montoya’s policy would be to respect a patient’s medical card as he “will not prosecute patients with cards.”
I also asked whether or not a patient would have to fear trafficking charges if acquiring medicine in New Mexico and bringing it over the state line back to Texas, to which he replied “They have to get it [their medicine] from somewhere. If the hallmarks of dealing aren’t associated with the [offense], the patient is safe with me.”
Author’s Note: This is comforting to hear as obtaining safe medical access for patients has been my biggest fight since I started advocating for cannabis years ago and it seems a couple of the candidates have the same sentiments toward card-holding patients.
Soon, New Mexico may have a full recreational program, which would mean Texas residents could legally obtain cannabis in New Mexico for recreational purposes. Would your office have a policy related to prosecuting individuals who legally obtained cannabis in New Mexico under a recreational program? If so, what would that policy be?
A simple answer was given to this question from Roger Montoya. “If it is under 5 pounds, I don’t care where it came from.” He will not be prosecuting responsible, personal adult use.
How would you approach pending personal use possession cases when you are elected?
When discussing current pending possession cases, Roger Montoya stated “I look forward to denying them. If other District Attorneys have the courage to do it, why shouldn’t I?”
In your role as a District Attorney, do you think you have any responsibility to evaluate closed cases related to personal use possession of cannabis? If so, what would that evaluation look like and what actions could you envision taking to help people clean up their record?
On this question, Roger said that he hasn’t given this aspect of the issue thought. He did state that he would be open-minded to the idea but that it would require more thought than he has put into this aspect. He did say that if able, he would have to set up criteria to determine who would qualify.
It has come to my attention that the Texas crime lab will have the ability to test THC percentage soon, therefore able to determine the difference between hemp and high THC cannabis. Once the Texas crime lab can distinguish hemp from high THC cannabis, will you continue to prosecute those possessing what is determined to be over the 0.3% legal limit?
This question is kind of obsolete for Roger Montoya as he said that he would decline to prosecute any marijuana (if only marijuana) charges that are under the 5 pounds mark. One reason he is inclined to decline these types of cases is that Roger Montoya feels that court and prosecutor resources can be used in more responsible matters. Here is an excerpt from Roger Montoya’s website on this issue:
End the Prosecution of Most Marijuana Cases, in Line with the Rest of Texas
The Texas Legislature recently legalized the cultivation of industrial hemp, which is a plant that is closely related to marijuana. Within the same law, the Legislature also changed the definition of what is marijuana, which is cannabis that contains more than .3% of tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana that produces a high. This new legal definition of marijuana has created a real problem for prosecutors: there are no state crime labs that are currently equipped to test a plant for the THC content that the definition mandates. The lack of lab testing equipment for THC content has, in turn, caused a problem of proof: without a lab report showing the THC content of a plant, how does the prosecutor prove that the plant is illegal marijuana, rather than legal hemp? After all, the burden of proof is on the prosecutor to prove guilt, and not on the defendant to prove innocence. This legal and practical quandary has led most DA’s offices to drop the prosecution of low-level marijuana cases altogether. Most DAs have decided that their valuable resources are better spent pursuing cases they can actually make in court, rather than pursuing non-starters like misdemeanor marijuana cases. The lone holdout in this regard, that is, the only prosecutor in a large Texas district who insists on prosecuting all marijuana cases regardless of problems of proof, is the current District Attorney of this district, the 34th Judicial District of Texas. I want to bring this district into line with the other major districts and stop prosecuting low-level marijuana cases. Even without problems of proof, prosecuting marijuana cases is a waste of prosecutors’ time and effort. Why should a patient who suffers from chronic pain due to a serious illness, like rheumatoid arthritis, or fibromyalgia, or cancer, have to worry about getting arrested for using a small amount of weed to ease their pain? If someone wants to use a little pot to stop their suffering, instead of using side-effect laden drugs from big pharmaceutical companies, I will have no problem with such use.
By the words above, you can tell that Roger Montoya understands that the burden of proof is on the prosecutor, not the defendant. This is something I can say there is one candidate that doesn’t necessarily agree or understand.
By Roger Montoya’s view and thinking, if someone where to be stopped with 100 pounds of hemp flower that was accompanied by lab results or certificate of analysis, they should be let go and unbothered. That certificate of analysis should be enough to prove that the hemp is legal. Roger understands that if a case of this type is brought into the courtrooms, it is up to the prosecutor to prove that the flower is above the legal .3% limit and not the other way around.
Our justice system is and should be “innocent until proven guilty”, and not how current District Attorney Jaime Esparza has operated for the last decade or more where you are “guilty until proven innocent.” You can tell that is Esparza’s mindset as he is continuing to prosecute misdemeanor possession cases WITHOUT proving that they are cannabis over the .3% limit.
In the race for district attorney, James Montoya is currently an Assistant District Attorney working under our current District Attorney Jaime Esparza. James Montoya currently prosecutes homicide cases and is most recently known for prosecuting the retrial of Daniel Villegas, a high-profile case that freed a wrongfully convicted man that spent 18+ years in prison after a jury verdict of not guilty during the retiral in 2019. James Montoya has been a licensed attorney since 2013 and only having worked in the District Attorney’s office.
I sat down with James Montoya to discuss how to tackle our problem of arresting and prosecuting non-violent cannabis consumers and this is what I found out:
Do you support the current First Chance Program that the DA has created for Class A and B marijuana possession? What are its strengths and weaknesses as a program? If you were to change it, how would you do that and why?
James Montoya is in “agreement with the principal” of the first chance program but feels it “can be expanded.” James Montoya also believes that diversion should apply to a defendant or what their background looks like, but to the offense. James Montoya also feels that any misdemeanor offense should qualify for this type of program, which is basically in line with what Mothers Against Drunk Driving pushed when they pushed House Bill 2391 back in 2007, allowing for officers to cite and release misdemeanor offenses in order to stay on the roads and keep the public safe; rather than tied up in a substation doing hours of paperwork for a petty offense.
James Montoya also believes that the diversion program should be open to those caught with misdemeanor amounts of cannabis in “drug-free zones” unless the accused was selling. He also thinks that the program should be a “pre-arrest” diversion program, not a “pretrial” diversion, meaning that those caught with misdemeanor amounts will all be eligible for the diversion program at the time of the offense, not after arrest and before going to court.
James Montoya pointed out that the current program’s weakness is that it is limited and only available to those who have no prior record or arrests.
What is your philosophy regarding the prosecution of possession of personal use amounts of cannabis? If elected, how would you put that philosophy into action?
When discussing James Montoya’s philosophy regarding personal possession cases, James said “It is not a smart use of taxpayer resources to prosecute misdemeanor amounts of marijuana, as there is no public safety value to it. It detracts resources from other misdemeanor cases that we should be focused on. Another philosophy that James Montoya would like to use in the DA’s office is to have a few marijuana case filings as possible. One way he would like to implement this is by offering a prearrest diversion program for all that is found with misdemeanor marijuana possession as well as continue to offer the program for those with already filed cases.
Currently, El Paso residents can obtain a medical cannabis card in neighboring New Mexico if they qualify under one for the 28 approved conditions. If an individual had a valid New Mexico medical marijuana card and was complying with the program, would your office have a policy related to prosecuting those individuals? If so, what would that policy be?
James Montoya’s stance on prosecuting patients is that “if you have a valid card, we will decline the case for the prosecution.” This should be a standard for ANY district attorney. A patient, especially one that can verify they are a patient, should never be prosecuted for something so minute like this.
Again, I brought up to James what I brought up to the others. Currently, it is legal for card holding patients to purchase cannabis concentrates at a New Mexico dispensary. These concentrates currently carry felony charges in Texas. James Montoya stated that he would decline to prosecute card-holding patients, if licensed by New Mexico, for personal possession cases for flower or concentrates as long as there was no evidence of redistribution or resale.
Soon, New Mexico may have a full recreational program, which would mean Texas residents could legally obtain cannabis in New Mexico for recreational purposes. Would your office have a policy related to prosecuting individuals who legally obtained cannabis in New Mexico under a recreational program? If so, what would that policy be?
His policy would be to continue with a prearrest diversion program if caught. James Montoya seems to have a hard time with just coming out and saying that he will dismiss all cases and that is evident by him telling me that he “doesn’t feel those who possess marijuana should do jail time, but something needs to happen.” James Montoya has told me this a number of times. He feels there should be some type of penalty, and I am not sure I can agree with that. There is no penalty for those possessing alcohol or tobacco, two substances that are far more detrimental to a person and society, more than marijuana.
How would you approach pending personal use possession of cannabis cases when you are elected?
Simply stated, he would offer the first chance program and if accepted and completely, he would dismiss the case. With that being said, it’s like “jump through this hoop and we will toss it out.”
In your role as a District Attorney, do you think you have any responsibility to evaluate closed cases related to personal use possession of cannabis? If so, what would that evaluation look like and what actions could you envision taking to help people clean up their record?
James Montoya stated that he is “not sure if they have an affirmative duty to go back” and evaluate closed cases. He also said that he would “not be opposed to an expunction if you took a pretrial diversion program.” Currently, District Jaime Esparza has a policy in place that makes you waive your right to expunction when you sign up for the Pretrial Diversion Program offered by his office. Yes, he currently makes you sign away with your rights. The current DA’s office loves those convictions!
It has come to my attention that the Texas crime lab will have the ability to test THC percentage soon, therefore able to determine the difference between hemp and high THC cannabis. Once the Texas crime lab can distinguish hemp from high THC cannabis, will you continue to prosecute those possessing what is determined to be over the 0.3% legal limit?
Now this question to me can make or break because it brings up the whole point of “innocent until proven guilty.” One thing James Montoya stated when asked this question is that he “doesn’t want to be testing misdemeanor amounts of marijuana.”
If that is the case, we must remember this… Currently, the state of Texas does not have a way to distinguish legal hemp from high THC cannabis. It is legal to possess hemp flower with a THC percentage under 0.3% THC. There is no officer on the streets that can determine for fact that something they come across is above the 0.3% THC threshold. With that being said, all people found with flower should be released.
It is up to the police and the prosecutor to determine the THC levels and that can’t be done right now. It would be a great injustice to prosecute someone for legal hemp flower. The burden of proof is on the state, not the defendant. That is why we are innocent until proven guilty, and not guilty until we prove innocence.
I brought this point up to James Montoya, and he tried telling me there was a law or statute where it was up to the defendant to offer up proof, but he couldn’t show me said law at the time. This is scary for someone who wants to become the District Attorney.
If the police or the district attorney can not prove the THC content levels, there should never be any arrests or convictions.
James Montoya wasn’t sure how to answer this question. It appears what James Montoya has been taught working under District Attorney Jaime Esparza, is wrong. The burden of proof is on the prosecutor, not the Defendant. This all goes back to how DA Jaime Esparza is currently prosecuting people without determining if legal hemp flower or high THC flower. It isn’t about justice for Esparza, it is about convictions.
James Montoya didn’t really have a solid answer for the situation regarding a defendant having to prove their cannabis is legal hemp and not high THC cannabis when the burden of proof is on the state. He said he would get back to me on this issue.
Yvonne Rosales is the candidate in the El Paso race for district attorney that I voted for 4 years ago when she ran against Jaime Esparza, only to miss being elected by a small margin of votes. I had spoken with her 4 years ago over the phone and she attended an El Paso NORML meeting that year as well, one that I was not at due to my late wife’s medical situation.
This time I sat down with Rosales and got to speak to her one on one. We didn’t only talk about the cannabis issue. We discussed other issues close to me as well, like other drug charges. The conversation I had with her was heartwarming, to say the least. Coming from the background that I have, I do have to say that we saw a lot of things on the same levels. One thing she does want to do is to take a more humanistic approach to cases because she wants to stop people from coming back into the system. We discussed this to some great length as I told her that I personally have friends
Yvonne has worked in the District Attorney’s office before. She currently practices family and criminal law for a private firm.
Sitting down with her and discussing the issue surrounding cannabis offenses was like taking a breath of fresh here. Here is how Rosales answered those questions:
Do you support the current First Chance Program that the DA has created for Class A and B marijuana possession? What are its strengths and weaknesses as a program? If you were to change it, how would you do that and why?
Rosales stated that the program seems like it is working, although, she has not come across anyone that has been through the program. Yvonne stated what others have when she said that the program is limited to those without any prior convictions, and that isn’t right. She also feels that it should be offense-based, not based on the offender.
What is your philosophy regarding the prosecution of possession of personal use amounts of cannabis? If elected, how would you put that philosophy into action?
Rosales stated that “she can’t come out and say that she would not prosecute” as she wants to have a sit down with the El Paso Police Chief and El Paso County Sheriff to see where they stand. She said that she would like to “be in line with the police chief and sheriff and have the same philosophy across the board.” However, she did mention that she would not be interested in these “low level” charges.
Currently, El Paso residents can obtain a medical cannabis card in neighboring New Mexico if they qualify under one for the 28 approved conditions. If an individual had a valid New Mexico medical marijuana card and was complying with the program, would your office have a policy related to prosecuting those individuals? If so, what would that policy be?
Rosales did confirm that she would not prosecute patients who have a valid medical card from another state, thus honoring other states medical programs.
It is a horrible thing when prosecutors prosecute medical patients, whether they are cardholders or not and I have seen it happen with my late wife. The District Attorney’s office prosecuted my late wife for a simple possession charge that was under 2 ounces. Fighting cancer, she sat in booking for 16 hours and then had to endure 3 or 4 different court dates: all while dealing with side effects of being over-radiated. This is not okay, and it is great that a candidate for District Attorney feels that patients shouldn’t be prosecuted. Just to note, I believe all candidates have come out saying that they will not prosecute card-holding patients.
Soon, New Mexico may have a full recreational program, which would mean Texas residents could legally obtain cannabis in New Mexico for recreational purposes. Would your office have a policy related to prosecuting individuals who legally obtained cannabis in New Mexico under a recreational program? If so, what would that policy be?
Rosales stated that she “would honor other state’s laws.” So once New Mexico becomes legal, if you legally purchased cannabis in New Mexico, Rosales would not prosecute – because you bought the cannabis legally.
Author’s Note: Before sitting down with the candidates, the bill to legalize recreational cannabis was still active in the New Mexico legislature. Since the meeting with candidates and the release of this article, the bill has been tabled.
How would you approach pending personal use possession of cannabis cases when you are elected?
Rosales stated that she would get rid of pending cases, “because we don’t have the financial resources to test them.” This shows the unwillingness to use taxpayer resources for something so trivial.
In your role as a District Attorney, do you think you have any responsibility to evaluate closed cases related to personal use possession of cannabis? If so, what would that evaluation look like and what actions could you envision taking to help people clean up their record?
Rosales stated that “we can’t undo convictions of cases that are closed”, but she wouldn’t object to allowing expunction of charges. As I mentioned earlier, currently District Attorney makes you waiver your right to an expunction if you take a Pretrial Diversion Program. You must sign it away in order to participate in the program. When you apply for expunction, the District Attorney can accept or deny. Rosales said that she would allow these types of expunctions.
It has come to my attention that the Texas crime lab will have the ability to test THC percentage soon, therefore able to determine the difference between hemp and high THC cannabis. Once the Texas crime lab can distinguish hemp from high THC cannabis, will you continue to prosecute those possessing what is determined to be over the 0.3% legal limit?
Again, Rosales stated that she has no interest in these “low-level crimes.” The time and money it takes to test and prosecute these cases are of no interest to her. She is more concerned about justice and sees the injustice in these types of cases.
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In conclusion, all 4 candidates had great things to say and I believe El Paso’s future when it comes to ending arrest for possession of cannabis, looks good in the near future. It is a tough race and I encourage others to research the candidates more. Read their websites and attend and live events they may have in the coming weeks. Research, research, research.
Take a look at their experience and background. Do we want to keep the same old mentality as our current District Attorney, or do we want a fresh start? Do we want convictions to be sought after, or do we want justice?
Here are a few things to remember:
Early Voting has already started;
The election is Tuesday, March 3rd;
The only way you will be able to vote for one of these candidates is in the Democratic primary. There are NO republican candidates, so whichever candidate wins the Democratic primaries will take the seat as El Paso’s next district attorney.
To find out more about each candidate, please check out Beyond the Podium on KFOX.
Now get out to the polls and vote!