Don't Fear the Reefer!

Illustration by Jason Stout/Thinkstock

For more than a decade, Austin Demo­cratic state Rep. Elliott Naishtat has brought to his Capitol colleagues a modest proposal: Create an affirmative defense to prosecution on pot possession charges for seriously ill Texans.

For seven sessions now – that's every other year since 2001 – he's either authored or sponsored a measure that would give bona fide patients – those suffering, for example, from AIDS, multiple sclerosis, glaucoma, cancer – the ability to have a judge decide if a criminal charge for pot possession should be dismissed. Naishtat's proposal would also protect doctors who suggest their patients try marijuana as medicine to alleviate the debilitating symptoms of disease.

And he's been clear, at every turn, that this is all the bill would do. He hasn't suggested that the state legalize medical marijuana – as 20 states and the District of Colum­bia have done – let alone that Texas follow the lead of Colorado and Washington and legalize marijuana outright for all uses. "I try to be moderate," he says, and proposed this bill, specifically, because "I thought it would have a snowball's chance."

That isn't exactly how it's played out. The measure has only three times been assigned a committee hearing – once by the House Criminal Jurisprudence Committee (back in 2001) and then by the House Public Health Committee, in 2005 and again in 2013. No version of the bill has ever received a vote in committee, let alone made it to the House floor for consideration.

Rep. Harold Dutton

It's frustrating, certainly, but Naishtat is unsurprised and remains undaunted by the repeated roadblocks. In part, that's because he knows what lawmakers say to him in hushed tones on the floor: Sure, what you're doing makes sense, and it's the right thing to do, but I can't vote for it. "I have members come up to me and say, 'I know what you're trying to do here, but I can't vote for it because my cousin in Harlingen is a deputy sheriff,' or because 'I can't look weak on crime. Maybe in another six years.'"

Yet if recent poll numbers are to be believed, it shouldn't take anywhere near six years to get this done. According to a September 2013 poll commissioned by the Marijuana Policy Project, a majority of all Texas voters – men and women, Democrats, Republicans, and independents – support legalizing medi-pot. In a Texas Tribune/UT poll released in February, 49% of voters favor making at least small amounts of pot legal for any purpose, and another 28% favor legalizing medi-mari – thus, a clear 77% of all voters (a slight majority of those polled were Republican) favor legalizing medi-pot, and most certainly would favor Naishtat's bill. He says, "I'm saying with more confidence it's just a matter of time until it's legalized."

Indeed, since January, when Gov. Rick Perry said (during a panel discussion of the World Economic Forum in Switzerland) that he supports marijuana decriminalization – and the right of individual states to legalize the drug outright – the Texas media has been trolling for more. The Dallas Morning News asked Democratic gubernatorial candidate Wendy Davis about her views in a recent interview; she would support medi-pot, she responded, and the right of voters to consider legalization (though she said she's not sure how she'd vote on that question). Land Commissioner and recent GOP lite guv candidate Jerry Patterson told public television station KERA, without hesitation, that he would support legalizing medical marijuana; and author/musician Kinky Friedman's all-pot-all-the-time race for agriculture commissioner netted him 38% of Democratic party voters, the most in the three-way race, sending him to a May run-off.

These are among the recent and public shifts that veteran lawmakers and advocates for drug-law reform consider harbingers of big things to come for the Lone Star State. It's just a matter of time, they say, before Texas goes all in for lasting marijuana-law reform. The question is how quickly things will move, and what shape the future will take.

Change Follows Experience

The way state Rep. Harold Dutton, D-Hous­ton, sees it, all this talk about changing pot laws was inevitable. As Naishtat has fought long and hard to protect medical marijuana patients, so too Dutton has pressed – and pressed and pressed – to decriminalize possession of small amounts of pot, making possession of up to an ounce a fine-only offense. "[I]t appears that everyone else is getting as smart as I am," he said. "It's like you take a match and strike it and somehow or another the forest catches on fire and you have no idea how that happened. But it's a good thing. It focuses on what criminal laws are designed to do: Protect people. How can you say that's what you're doing when you take a 20-year-old kid and arrest him [for possessing a joint]?" Dutton asks.

Rep. Elliott Naishtat (Photo by John Anderson)

Like Naishtat's bill, Dutton's is a modest proposal (it keeps jail time on the table for possession of two ounces or more) that has gained only limited traction since 2005, when he first introduced it. Last year it made the most progress, voted out of the Criminal Jurisprudence Committee – with crucial Tea Partier support – before disappearing into the Calendars Committee, never to find a date with the House floor.

Nevertheless, Dutton remains confident that his bill, too, will soon pass. "You have to realize how the Legislature operates," he said. "Remember the 'blue laws'? Trying to repeal the blue laws, people would say, 'More people are going to go to hell if you can shop on Sunday!' I think we have as many people going to hell now, but it took seven sessions to get that done." In short, he said, "People get very conservative about holding on to past statutes" – even where they serve no good purpose. And like Naish­tat, Dutton has heard his colleagues lament that they'd love to vote for his bill, but can't. Yet he insists that if he keeps pressing long enough, his colleagues will come around and the job will get done. "One [House] member called me and told me he was against [my bill, but] that when his son was arrested for marijuana, he changed his mind," Dutton recalled. "Once you get some real experience, it changes things."

No More Harm: 'Legalize It'

For sure, decriminalizing – or even outright legalizing – marijuana in Texas would bring a lot of benefits, advocates say, such as a noticeable reduction in criminal justice expenses, including the cost to lock up non-violent low-level drug offenders popped for possession. According to the FBI, in 2012, 82.2% of all drug arrests in the U.S. were for possession only; of those, 42.4% were arrested for marijuana possession. In Texas the numbers are even starker: In 2012, according to the Texas Department of Pub­lic Safety, 57% of the 116,634 adult arrests for drug possession, and a whopping 81% of the 8,132 juvenile arrests for drug possession, were for possession of pot. Consider a low-level offender popped for pot and sentenced to a year in county jail – in Austin that costs taxpayers an average of $38,548 per inmate per year.

Those are the kinds of numbers that make retired narcotics officer Russell Jones shake his head. Jones, who worked for the San Jose, Calif., police department and did foreign intelligence work before retiring to Central Texas in 1994, now works with the drug-law reform advocacy group Law Enforcement Against Prohibition, as well as with the Drug Policy Forum of Texas, giving talks to anyone who wants to listen about why the War on Drugs is an utter and complete failure and should be put out of its misery.

Among the biggest reasons, Jones says, is that policing drugs does way more harm than the drugs themselves, particularly among youth and young adults who get caught up in the drug war dragnet. The consequences of a single possession arrest can be haunting – taking away the opportunity to go to college, to enter a profession of choice. And for what? "Throwing people in jail and saddling them with a drug conviction, you're doing a whole lot worse than the drug use" did, he said, particularly when the vast majority of people simply grow out of it. "The vast majority don't get addicted," he said. "So what's the least harmful way to deal with [drug use]?" To Jones the answer is to fully legalize it: Decriminalization, he says, still leaves production and distribution in the hands of the black market – including the cartels working up into Texas from the Mexico border. He believes that legalizing marijuana in Texas would impose order on an underground business and, quite literally, save lives. "When was the last time we had a drive-by shooting between Bud and Coors? It doesn't happen, because it's a legal product," he said. "We've got to stop ruining kids' lives over youthful indiscretions."

Rob Kampia, Marijuana Policy Project

Jones, like Naishtat, believes strongly that it's only a matter of diminishing time before medical marijuana is legal in Texas; Dutton believes decriminalization is on tap for the 2015 legislative session. But all three are more skeptical of when, or if, Texas will actually go all in to legalize marijuana. "I can't imagine making it legal," said Dutton, "but I think decriminalization is something Texas is going to do next session."

The Tipping Point?

Despite Dutton's understandable skepticism, there's at least one deep-pocketed advocate who believes not only that Texas will legalize marijuana, but that change is right around the corner. That's Rob Kampia, co-founder and executive director of the Marijuana Policy Project, which has backed nearly every successful marijuana initiative since the group's founding in the mid-Nineties, and was the driving force behind the 2012 vote to legalize pot in Colorado.

Now, Kampia is bringing that winning spirit to Texas; beginning March 1, the group hired its first-ever Texas lobbyist and has committed to spending $200,000 a year here until the job is done. Like Dutton and Naishtat, Kampia's heard plenty of lawmakers list all the reasons why pot-law reform simply won't work in their state. He's been taken into closed-door meetings where lawmakers say in hushed tones, "I just don't know if I can support this." Sure you can, Kampia responds, because "marijuana polls better than you do." That has been the case in any number of states where MPP has, eventually, prevailed despite conventional wisdom to the contrary. Indeed, the recent Texas Tribune/UT poll results reflect that voters favor some form of legalization (49%) more strongly than they approve of the job Gov. Rick Perry (42%) has done. "I've learned over the last 15 years, people in the state in question believe change is not possible in their state, but [is] possible in other states," he said. "We feel like legalizing marijuana in Texas – though people in Texas feel like it's impossible – I think it's possible in five years."

The tide is visibly turning against pot prohibition – at press time, legalization measures had been introduced or were pending in 17 states, while medi-pot legalization measures had made it into 14 state houses. Moreover, the rhetoric against marijuana-law reform has become increasingly tired, if not desperate. Case in point: In testifying against a legalization measure pending in Maryland, Annapolis Police Chief Michael Pristoop told lawmakers that more than 30 people overdosed on marijuana on the first day it was legalized in Colorado. In contrast, he said, "No one's overdosing on beer." Unfortunately for Pristoop, the Colo­rado "pot-OD" story was a hoax, created by the satirical website Daily Currant, and no one at all had "overdosed" on marijuana (virtually an impossibility). By contrast, according to the Centers for Disease Control, there are approximately 88,000 deaths each year attributable to excessive alcohol use – something a police chief should know well.

Pristoop subsequently apologized for mistaking the OD story as a factual account, but to reform advocates, the incident highlights the lengths to which some opponents would go to in order to avoid change. "This just underscores why we should not be treating drug issues with a law enforcement approach," says Tom Angell, founder of Marijua­na Majority.

Kampia, who expects voters in as many as six states could legalize marijuana in the 2016 election cycle, says it's time to "take reality for what it is, and move forward." In Texas, he believes that time has come. "We're in and we're in for the long haul," he said. "We're ready to go."

Naishtat says he's talked with MPP about its plans, and he supports those efforts, although, for now at least, he'll continue to push his moderate measure in the hope that, finally, his colleagues will agree that seriously ill Texans deserve their support. "I think we're getting close to the tipping point, in light of what is happening across the country," he said. "Maybe ... the eighth time [is the charm], or the ninth. But I know we're making progress."