In just two weeks in October, the legal landscape for marijuana use in North America changed dramatically.
First, Canada opened sales of legalized pot for recreational use, and then Mexico‚Äôs high court delivered a definitive ruling that citizens have the right to possess the weed for their personal use. That leaves Texas virtually surrounded by states that allow marijuana for medical use ‚ÄĒ but not for recreational purposes ‚ÄĒ as well as being sandwiched between two neighboring countries that have liberalized their stance on personal usage of the drug.
And while the Lone Star State is a long way from following the example of Canada and Mexico, there seems to be growing support for at least reducing stiff criminal penalties for possessing small amounts of the weed. Currently, possession of less than two ounces of marijuana is a class B misdemeanor, punishable by a six-month jail term and a $2,000 fine.
‚ÄúEven in Texas, public opinion seems to have shifted from criminalization to at least decriminalization, with strengthening support for legalization,‚ÄĚ said Nora Demleitner, a professor at Washington and Lee University School of Law in Virginia and the lead author of the textbook ‚ÄúSentencing: Law and Policy.‚ÄĚ
Among the frontrunners of decriminalization in Texas is Harris County District Attorney Kim Ogg, who shortly after taking office in 2017 created a marijuana diversion program for first-time offenders that eliminates jail time and a criminal record if the person attends a drug awareness class and is not re-arrested. A similar diversion program is in operation in Austin‚Äôs Travis County.
Ogg rationalized that the average $25 million per year that the county spent prosecuting low-level pot consumers and locking them up was a wasteful public policy, preferring instead to use those funds to support fighting other crimes that threaten community safety.
And the county‚Äôs top prosecutor is not alone, recent polling indicates.
Less than 20 percent of registered voters in Texas object to legalizing marijuana and overall, 53 percent would legalize pot either in small or any amounts, according to a University of Texas/Texas Tribune poll conducted before the midterm elections.
The trend seems similar across the country, where so far 10 states have legalized marijuana and 33 allow it to be used for medical treatment.
‚ÄúExpending resources on investigation, interdiction, prosecution and incarceration is a waste of those resources,‚ÄĚ agreed Barry Grissom, a former U.S. prosecutor in Kansas and vice president of Electrum Partners, a Las Vegas venture management firm specializing in cannabis. He added that those assets ‚Äúshould be directed toward violent crime, human trafficking, sexual exploitation of children on the internet; things that will make our communities safer.‚ÄĚ
Texas lawmakers passed a law in 2015 that allows doctors to prescribe a CBD oil, or cannabidiol without intoxicating properties, for patients with epilepsy that don‚Äôt respond to approved treatments.
Despite the criminal penalties, Texas has two of the Top 10 consumer cities in the country. Houston occupies the fourth spot with an estimated 21 metric tons of weed consumed last year, after New York, Los Angeles and Chicago, according to the 2018 Cannabis Price Index from the German company Seedo, which tracks the market around the world. Dallas is number seven with 15 metric tons.
That high demand in Houston and elsewhere in Texas, some experts say, is not being met by traditional drug smuggling networks alone.
‚ÄúToday in Texas, consumers easily find a wider variety of cannabis products than a few years ago coming from all over the place,‚ÄĚ said Dean Becker, a Baker Institute contributing expert in drug policy.
Becker explained that states like Colorado, California and Oregon are growing more than their markets can absorb, and smugglers are flourishing moving the merchandise to other marketplaces. Mexico, he said, isn‚Äôt the main Texas supplier anymore as their producers are struggling to compete with the higher quality of U.S. grown products.
Similar reforms in Mexico, Canada
The Canadian Cannabis Act that widely entered into effect on Oct. 17 legalized the recreational use and possession of small amounts of marijuana (just over an ounce) as well as cultivation for personal, adult consumption.
At the end of October, the Mexican Supreme Justice Court ruled that Mexicans had a right to possess marijuana, and while it did not strike down laws, it made it virtually legal for all purposes except commercial sale.
In November, the government of newly-inaugurated Mexican President Andres Manuel Lopez Obrador introduced a bill that would legalize commercial cultivation of marijuana, as well as allowing residents to possess and even cultivate small amounts of the weed. Smoking marijuana in public would also be lawful. The purpose, the bill says, is to ‚Äúpromote a model of responsible regulation.‚ÄĚ It has ample support in Mexico as a measure to decimate the power of drug cartels and their violent criminal enterprises.
The proposed bill is expected to become law, since the landslide election bringing Lopez Obrador‚Äôs political party to power in December also brought his party control of both houses of the Mexican congress.
Failure of ‚ÄėWar on Drugs‚Äô
Tony Payan, director of the Baker Institute‚Äôs Mexico Center at Rice University, says the progressive approach to marijuana by Canada and Mexico has roots in the decades of a largely ineffective war against drugs.
‚ÄúThe prohibition and war against it (marijuana) have proven to be a huge failure,‚ÄĚ Payan said.
Instead of decreased availability, the decades of costly interdiction efforts on both sides of the border have seen the consumption of marijuana increase in all three North American countries. And in its course, the drug war has resulted in a machine-like criminalization by the justice system for a product that poses no more health issues, and in many cases less, than most legal drugs used for recreational purposes including alcohol and tobacco, according to a number of studies.
‚ÄúThe argument of ‚Äėfear of weed from Mexico‚Äô is over a century old, and hasn‚Äôt evolved much beyond the racist them-vs-us origins since then,‚ÄĚ said Benton Bodamer, a member of the cannabis practice group at the international law firm Dickinson Wright and an adjunct professor at the Ohio State University‚Äôs Moritz College of Law.
He referred to the origins of marijuana prohibition in America in the early 1900s when racist propaganda sensationalized ‚Äúan addictive drug which produces in its users insanity, criminality and death,‚ÄĚ in the words of Harry J. Anslinger, the first commissioner of the Federal Bureau of Narcotics which was created in 1930. Following the steps of a previously established racist narrative, he said that the ‚Äúprimary reason to outlaw marijuana is its effect on the degenerate races,‚ÄĚ identified as ‚ÄúNegroes, Hispanics, Filipinos, and entertainers.‚ÄĚ
Today, about one in seven adults of all walks of life in the U.S. consumes marijuana, according to 2017 figures from a study published in the Annals of Internal Medicine in July. It also found that 81 percent of American adults believe that cannabis consumption has at least one benefit, with only 17 percent attributing none at all.
Business opportunities for legalization
‚ÄúThe cannabis industry is a job creator, which Mexico and Canada realize, and it also cuts into the portfolio of criminals by making its use and sale a legitimate business that (creates) jobs and revenue,‚ÄĚ said Grissom, the former federal prosecutor.
Grissom says Colorado is a good example, which reported total cannabis sales of $1.5 billion in 2017, and a staggering $5.7 billion since sales began in January 2014, according to the Colorado Department of Revenue.
‚ÄúThese funds did not go to criminals but to entrepreneurs who created over 20,000 new full-time jobs that paid a living wage as well as a new source of (tax) revenue for the state,‚ÄĚ he said.
Overall, ‚Äúthe nascent U.S. cannabis market is already double the size of Canada‚Äôs, at $8.5 billion dollars,‚ÄĚ said Brad Alexander, a senior adviser at McGuireWoods Consulting, a public policy advisory firm headquartered in Washington, D.C. He predicts that by 2022, this market could top $20 billion.
Progressive approaches to decriminalization have merged with fiscally conscious conservative arguments when it comes to business.
‚ÄúSavings in the criminal justice system attract many conservatives while liberals bemoan the racially discriminatory impact of marijuana arrests and prosecutions,‚ÄĚ said Demleitner.
Abbott signals support
Recent comments from Gov. Gregg Abbott, a Republican who has opposed marijuana reform, could prove to be a game changer in Texas
Abbott said that he would support decriminalization by reducing the possession of less than two ounces from a B to C misdemeanor, with no jail time. Requests for comments from Abbott were not returned.
With the 86th Texas legislature set to meet in January, already a dozen bills have been introduced dealing with decriminalization as well as legalization of medical and recreational marijuana use.
‚ÄúAll of this momentum foreshadows the global transformation from a fear-based prohibition into a global cannabis industry fueled by facts, market data, medical research, customer-patient experiences, and intelligent and evolving legislative solutions,‚ÄĚ said Bodamer, who teaches a class called ‚ÄúCannabizz‚ÄĚ at Ohio State.
And although the federal government continues to abide by a full criminalization of marijuana, Demleitner notes that the resignation of Attorney General Jeff Sessions could mean a change in marijuana enforcement policies.
For the Lone Star state, Demleitner has a prediction about the sandwich effect.
‚ÄúAll in all, Texans of all stripes may be closer than ever to move toward legalization, especially as everyone around them is going along with this major change,‚ÄĚ she said.