Council members say letting go of pot charges right thing to do

Four Austin City Council members on Tuesday said ending arrests and citations for low-level marijuana offenses is the right thing to do from a cultural, criminal and fiscal perspective.

The council on Thursday will consider a resolution that would effectively end criminal action against individuals with small amounts of marijuana, while preventing the city from expending additional resources to develop new testing capabilities required to distinguish narcotic marijuana from legal hemp.

The resolution would not apply to felony-level trafficking offenses.

State lawmakers during the last legislative session legalized the production of hemp, which can contain up to 0.3% THC, the intoxicating agent in marijuana. But since only a small number of labs are capable of testing marijuana for THC content, a slew of city and county attorneys offices, including in Travis and Williamson counties, washed their hands of prosecuting such cases, saying such testing was too hefty a financial burden.

But many attorneys left open the possibility that cases mounting since the law went into effect last summer could return if new testing capabilities developed, a prospect the resolution’s main sponsor, Council Member Greg Casar, hopes to avoid.

“We know that too many Austinites have had their lives derailed by a low-level marijuana offense,” Casar said. “It just makes sense in this environment for us to lead the way and for us to dedicate our limited resources on investing in our community rather than investing in pursuing low-level marijuana offenses.”

Council Member Delia Garza said the Legislature’s decision to legalize hemp put local governments in a tough spot by requiring new, expensive testing while limiting the amount of revenue the city can bring in with a tax cap.

“The state has created a problem that it expects local governments to fix, but it’s also tied our hands, leaving us with fewer ways to do that,” Garza said, adding that continuing to pump resources into such low-level cases would be irresponsible considering other demands on the city’s budget.

Council Member Jimmy Flannigan echoed those sentiments, calling the proposed policy change “fiscally conservative.”

“We have very limited resources, as my colleagues have said; we have a lot of challenges in this community, things that we need to get done, things that the public is asking us to get done,” he said. “The thing I am never told they want is arrests and citations for low-level amounts of marijuana. There is no one in this community that I’m hearing from that is asking us to do that.”

Council Member Natasha Harper-Madison said people of color have been disproportionately affected by heavy-handed drug policies, and continuing to use additional resources on policies that uphold discriminatory systems doesn’t make sense.

“The absurdity of it all is underscored by the fact that marijuana is now completely legal in 11 states and our own nation’s capital,” Harper-Madison said. “Even now our own city’s enforcement can be pretty selective, just spend five minutes at ACL Fest or Eeyore’s Birthday if you don’t believe me.”

While local prosecutors have been turning away low-level marijuana cases, Austin police have still been enforcing pot laws, albeit with a few more stipulations. In the past, the odor or view of marijuana alone could suffice as probable cause in a marijuana case. After the state changed hemp laws, officers were required to develop probable cause based upon other factors.

Austin police Assistant Chief Joe Chacon said officers have to be more careful to ensure they are taking the right action when they move to arrest or cite someone for marijuana. He said the department is concerned about potential ripple effects to violent crime that police fear could come from such a move.

“If we start making it harder for our officers to really take that enforcement action, that emboldens the dealers and people to kind of move into this space to deal narcotics or to deal marijuana,” Chacon said. “When people kind of crowd into that space, we can anticipate that there's going to be violence that's going to come along with that. We've seen it happen in other areas, and that's what we're concerned about for Austin.”

Flannigan said it’s fair for Austin police to ask for additional equipment and funding to prosecute marijuana offenses because the council has yet to change the city’s marijuana policies. But now that the council is poised to modify those policies, Flannigan said the equipment and funding for testing wouldn’t be necessary.