District attorneys throughout Texas haven’t prosecuted low-level marijuana offenses for the past few months because their forensic labs can’t tell the difference between legal hemp and marijuana.
Officials with the State of Texas, working with the U.S. Drug Enforcement Administration, said it has found a solution. But at the recent Texas Marijuana Policy Conference in Austin, some prosecutors said they’re still not convinced to make possession charges a priority.
Before this year, anything that looked, smelled like and tested positive for THC was considered marijuana. Then, lawmakers decided earlier this year that anything that had up to a 0.3% psychoactive THC concentration would be classified as legal hemp. Anything with a greater concentration than 0.3% that would be classified as marijuana.
But how could crime labs pinpoint that difference? The Texas Forensic Science Commission has identified a test that could do it.
But Peter Stout, the president and CEO of the Houston Forensic Science Center, said if prosecutors agree to move cases forward again and there isn't any additional state funding to pay for those tests, another problem will emerge: a backlog of untested drug kits.
“In a laboratory it’s all tied together, resources that I use in control substances, resources that I then don’t have for forensic biology or resources that I don’t have for latent prints or resources that I then don’t have for DUIs, it’s all tied together,” Stout said.
Stout said his lab is currently focused on testing evidence connected to violent crimes. He was hesitant to request funding needed to purchase additional testing equipment.
“Because if the legal framework of marijuana changes, I don’t want to invest in equipment that three years from now basically becomes unusable because the legal framework changed again,” Stout said.
Kim Ogg is the district attorney for Harris County. She is also one of the six district attorneys who signed a pact stating they were not going to prosecute low-level marijuana arrests following the legalization of hemp.
Ogg said her office would continue to use its pre-trial diversion program, which directs people with low-level marijuana possession arrests away from the court.
“Not everyone agrees when it comes to marijuana. And so the diversion we have for marijuana is part of a larger package, trying to take social ills and divert around jail, treat them in a different way,” Ogg said.
Ogg’s program provides would-be defendants educational opportunities instead of jail time, which allows her office to spend more time prosecuting crimes like sexual assault and murder.
“I think our voting population wants reasonable laws that make sense. They want to be safe, and they don’t want their tax dollars wasted on things like the prosecution of marijuana,” Ogg said.
The list of district and county attorneys temporarily halting all low-level marijuana prosecutions continues to grow. But some may reprioritize those cases once the state provides crime labs that new method for determining THC concentrations.
Shannon Edmonds is the director of governmental relations at the Texas District and County Attorneys Association. Edmonds said each DA and county attorney has their own prosecutorial discretion in terms of which cases go to trial and which do not.
“And that is the way our system is set up, we don’t have a one size fits all criminal justice system,” Edmonds said.
And, she said, there’s also the will of the voting public to keep in mind.
“Because prosecutors are elected, they’re usually going to be responsive to what the people in their community think they should be prioritized and that’s going to happen on a jurisdiction by jurisdiction basis,” Edmonds said.
Edmonds said it remains to be seen whether counties will use the state’s new marijuana testing protocols to bring low-level marijuana prosecutions to trial.
The Texas Forensic Science Commission expects the state will have a new testing protocol available for labs to use by early 2020.
Ryan Poppe can be reached at RPoppe@TPR.org and on Twitter at @RyanPoppe1.