Trials and Error

The New War on Drugs

Jeff Sessions and the DOJ are pushing for hard-line marijuana policies. Prosecutors across the country are pushing back.

Harris County District Attorney Kim Ogg
In Texas, Harris County District Attorney Kim Ogg has drawn a direct line between marijuana arrests and the overburdened criminal justice system.

Harris County

When Kim Ogg ran for district attorney in Harris County, Texas, she pitched herself as a progressive who’d change the “war on drugs” ideology that has clogged the county jail with nonviolent marijuana users. Upon her election, Ogg made good on that promise, announcing a program that will allow county residents caught with 4 ounces or less of marijuana to stay out of jail in exchange for taking a four-hour, $150 class on decision-making. The new district attorney estimates the program will divert 12,000 people from jail each year and save the county, which includes the city of Houston, more than $10 million annually.

For a long time, Houston was known for its incredibly harsh drug penalties. Ogg’s predecessor, Devon Anderson, was also known for prosecuting “trace cases,” in which a minuscule amount of cocaine is detected, as felonies. Anderson launched a meek diversion program—it was open only to first-time offenders who possessed less than 2 ounces of marijuana—after Ogg first presented her own plan during her unsuccessful 2014 district attorney campaign. Ogg, by contrast, has drawn a direct line between marijuana arrests and the overburdened criminal justice system. “At 107,000 cases over the last 10 years, we have spent in excess of $250 million collectively prosecuting a crime that has produced no tangible evidence of improved public safety,” she told reporters in February.

The Harris County district attorney isn’t going out on a limb here. Local law enforcement, including Harris County’s sheriff and the Houston police chief, advised her on the diversion’s program’s design and support its implementation. “One of the reasons [Harris County jail] is costly is because we can’t manage the population we have,” Sheriff Ed Gonzalez said during a local media interview about marijuana policy. “The war on drugs has been a failed policy for over 40 years. We tried it. It didn’t work. We need a new direction.”

Ogg’s progressive platform also extends to bail reform. Since taking office, she has directed prosecutors in her office to release people awaiting trial for misdemeanor offenses on their own recognizance rather than relying on a cash-bail system that leaves the less affluent no choice but to lose their freedom.

This approach to low-level offenses comes at a time when the federal government seems poised to crack down on marijuana under the false guise of public safety. In a speech about violent crime, Attorney General Jeff Sessions called the drug “only slightly less awful” than heroin. During his tenure as a U.S. attorney in Alabama, 40 percent of the convictions from Sessions’ office were for drug offenses. Sessions’ recent comments about marijuana were also in step with Trump’s law-and-order presidential campaign, which relied on fearmongering rhetoric and misleading statistics about rising violent crime rates.

Anxiety around the tension between state and federal marijuana laws is nothing new. Though the Obama Department of Justice was less overtly hostile toward marijuana reform than Sessions has been thus far, the Obama administration did oversee numerous busts and raids of licensed medical marijuana dispensaries.

The tension between federal and local authority here stems from the fact that both have the authority to enforce drug laws. Historically, the federal government has depended on states to enforce laws prohibiting low-level drug use, although the feds are technically well within their rights to enforce federal laws prohibiting such use.

In practice, the existence of programs like Ogg’s demonstrates the power that local district attorneys maintain when it comes to reform. The choice to prosecute low-level marijuana offenses—or not—remains in the hands of local prosecutors, and many local officials are choosing to move forward with reform efforts that are not in keeping with the harsh rhetoric emanating from the Trump White House and the Sessions Department of Justice.

In Nueces County, Texas, home to Corpus Christi, newly elected district attorney Mark Gonzalez announced plans in January to stop sending people to jail if they’re caught with 2 ounces or less of marijuana. Instead, county residents will have the option to take a drug class and pay a $250 fine. Those who can’t afford the fine can perform 25 hours of community service instead. And this program isn’t limited to first-time offenders: People in Nueces County won’t be looking at jail time for a second or third marijuana-related arrest.

Local officials, too, remain free to side with the Sessions approach if they so choose. D.A. Brett Ligon of Montgomery County, Texas, north of the Houston area, was quick to express his disgust with Ogg’s diversionary efforts, telling reporters in February that his turf “will not become a sanctuary for dope smokers.”

In Arizona, Pima County Attorney Barbara LaWall campaigned against a proposition to legalize medical marijuana in spite of the initiative garnering support from 57 percent of voters. In the time that LaWall, who is serving her sixth term, has been in office, the percentage of black, Latino, and Native American residents in the county jail has skyrocketed. When pressed to discuss the racial disparities in the incarcerated population, as well as the large percentage of nonviolent drug offenders, LaWall said in April 2016 that “the right people are in prison.”

Then there’s former county prosecutor Aaron Negangard of Dearborn County, Indiana, who last year told the New York Times that he is “proud of the fact that we send more people to jail than other countries” and (in the spirit of Sessions) believes that “marijuana is a gateway drug to heroin.”

Ogg’s policy will likely reduce arrests and prosecutions for marijuana use and possession, but it won’t be a panacea. Consider the case of Brooklyn, New York, where former District Attorney Ken Thompson announced in 2014 that his office would stop prosecuting some low-level marijuana offenses. That same year, New York Mayor Bill de Blasio and then–Police Commissioner William Bratton announced that the New York Police Department would begin issuing summonses instead of making arrests for low-level marijuana possession. A failure to appear in court for a summons triggers an arrest warrant. According to Harry Levine, a Queens College professor of sociology who has collected and studied data on marijuana arrests in New York City, there are now 1.5 million open criminal, arrestable warrants for noncriminal offenses. “The system continues to produce arrests as a matter of course,” said Levine.

If Harris County residents who are diverted out of the jail system fail to pay their fines or show up for decision-making classes, will the county issue criminal arrest warrants? (Ogg’s office has not responded to requests for comment.) In New York City, Levine notes, blacks and Latinos have been disproportionately targeted for drug offenses. In Harris County, too, black residents are three times more likely than whites to be arrested for marijuana possession. “There’s absolutely no attempt [in New York or Harris County] to remedy the massive racial disparities, which are at the heart of this thing,” said Levine.

While marijuana legalization and decriminalization campaigns have done little to address the disproportionate arrests of blacks and Latinos across the country, a decline in arrest rates for drug offenses doesn’t just benefit white marijuana users. One common myth pushed by district attorneys who oppose decriminalization and legalization is that marijuana use contributes to rising crime rates. But places that have taken these steps have seen no such increase. In Colorado, property crime and homicide rates actually dropped slightly in the two years after marijuana was legalized. And in Washington, violent crime rates fell by 10 percent between 2011 and 2014. Both states legalized marijuana in 2012.

The legalization movement in Washington was preceded in 2003 by a Seattle initiative—the first of its kind in the country—to make marijuana possession the lowest enforcement priority for the Seattle Police Department. Marijuana-related arrests, prosecutions, and jail sentences were reduced by 67 percent in 2004, and property and violent crime didn’t rise in tandem—numbers that paved the way for the state to fully legalize marijuana less than a decade later. Dominic Holden, who led the campaign for the Seattle initiative, faced strong opposition from City Attorney Tom Carr. After the campaign won, Carr continued to push back against Holden. The blowback finally stopped in 2009 when the city attorney was defeated in a re-election campaign by an opponent who ran on a plan to stop low-level marijuana arrests and prosecutions. “Politicians are afraid of looking soft on crime or drugs, so you have to create a punishment that is worse than that,” said Holden. “You have to create an environment that makes it toxic to their career to be accused of wasting resources for their office by punishing otherwise law-abiding, productive citizens [for marijuana offenses].”

Twenty-six states plus D.C. have now legalized marijuana in some form, whether for medical or recreational use. As of last fall, 57 percent of Americans were in favor of legalizing marijuana, according to the Pew Research Center. As public opinion shifts dramatically toward support of legalization and decriminalization, district attorneys like Ogg are paying attention. Her win in a county that has historically opted for conservative candidates signals a shift that more hard-line prosecutors would be wise to heed. Voters are ready to elect prosecutors who recognize marijuana isn’t a threat to public safety. District attorneys who don’t understand that will get a good sense of the will of the people when they lose on Election Day.