As more and more U.S. states enact measures allowing marijuana possession and use for medical or even recreational purposes, federal laws regulating marijuana look increasingly out of step with the rest of the country. More than half of all U.S. states, including Texas, allow medical marijuana use as of early 2018, although Texas’ medical marijuana program is one of the country’s most restrictive. The federal Controlled Substances Act (CSA), however, still classifies marijuana in its most restricted schedule. Various efforts to challenge the constitutionality of the CSA’s marijuana classification have failed. A recent lawsuit filed by medical marijuana users, including a young girl from Texas who had to move to Colorado for epilepsy treatment, challenged the CSA’s marijuana scheduling on Due Process grounds. The court ruled against them and granted the defendants’ motion to dismiss, partly on procedural grounds. Washington, et al. v. Sessions, et al., No. 1:17-cv-05625, opinion (S.D.N.Y., Feb. 26, 2018).

According to the CSA, a Schedule I controlled substance “has a high potential for abuse,” has “no currently accepted medical use,” and “lack[s]…accepted safety for use…under medical supervision.” 21 U.S.C. § 812(b)(1). The statute classifies “marihuana” directly alongside drugs like LSD, peyote, and heroin. Id. at § 812(c)(I). The Attorney General has authority to review the schedules and to remove a drug upon a finding that it “does not meet the requirements for inclusion in any schedule.” Id. at § 811(a)(2).

The U.S. Supreme Court struck down a challenge to the CSA under the Commerce Clause in Gonzales v. Raich, 545 U.S. 1 (2005). The plaintiffs argued that Congress did not have the power to prohibit them from growing marijuana for their own personal use in compliance with state medical marijuana laws. The court compared the CSA’s marijuana prohibition to federal laws regulating wheat production, and it held that the CSA “is squarely within Congress’ commerce power” because even production solely for personal use “has a substantial effect on supply and demand in the national market.” Id. at 19.
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The Texas criminal justice system primarily deals with adults suspected of, charged with, or convicted of criminal offenses under the Penal Code. A separate system deals with juvenile offenders. According to the Texas Juvenile Justice Code (TJJC), the purpose of this separate system is, in part, “to remove…the taint of criminality from children committing certain unlawful acts,” and “to provide treatment, training, and rehabilitation.” Tex. Fam. Code §§ 51.01(2)(B), (C). The goal of a juvenile proceeding is supposed to be the rehabilitation of the child, with confinement being a last resort. A recent study of incarceration of juveniles in Texas found that more than one-fourth of children in state custody in 2015 were there for non-criminal matters, also known as “status offenses.”

The TJJC defines a “child” as someone who is at least 10 years old, but younger than 17. Id. § 51.02(2). This definition also applies to someone who is 17 or 18 years old but has been convicted—or the juvenile court equivalent—for conduct that occurred before they turned 17. The state’s definition of “delinquent conduct” by a child includes almost anything that violates the Texas Penal Code, as well as various acts that are only prohibited for children. Id. § 51.03. State law defines a “status offender” as a child involved in a case that would not result in criminal prosecution if an adult engaged in similar conduct, such as “running away from home,” being a minor in possession of alcohol, or “a violation of standards of student conduct” resulting in expulsion. Id. at § 51.02(15).

The Texas Juvenile Justice Department (TJJD), which oversees juvenile cases throughout the state, was created by SB 653 in 2011. That bill abolished two agencies, the Texas Juvenile Probation Commission and the Texas Youth Commission (TYC), and consolidated their functions in the TJJD. The TYC had operated state juvenile correctional facilities since 1957, but it faced numerous scandals and lawsuits related to alleged abuses by officers and conditions in its facilities. A lawsuit filed against the state in 2008, for example, alleged that girls at a facility in Brownwood were “frequently subjected to punitive solitary confinement” in harsh conditions, among other abuses. K.C. et al. v. Nedelkoff et al., No. 1:08-cv-00456, complaint at 2 (W.D. Tex., Jun. 12, 2008).

Marijuana possession under Texas drug crime laws ranges from a misdemeanor offense to a major felony, depending on the amount. The Texas Legislature passed a law in 2007 that allows a “cite and release” policy, rather than arrests, for minor marijuana possession and other misdemeanors. Some, but far from all, Texas cities have adopted this policy. Law enforcement officials in neighboring or overlapping jurisdictions might disagree over cite and release. For example, the District Attorney’s Office in Bexar County, where San Antonio is located, announced the implementation of cite and release last year, while the San Antonio Police Department and other local police departments have expressed disagreement with the policy.

Possession of small amounts of marijuana is a misdemeanor offense under Texas law. If the amount is no more than two ounces, it is a Class B misdemeanor, increasing to a Class A misdemeanor for an amount that does not exceed four ounces. Tex. Health & Safety Code §§ 481.121(b)(1), (2). A Class A misdemeanor carries a maximum penalty of one year in jail and a $4,000 fine. Tex. Pen. Code § 12.21. The maximum punishment for a Class B misdemeanor is half of that:  180 days in jail and a fine of $2,000. Id. at § 12.22.

The 80th Texas Legislature passed HB 2391 in May 2007. It took effect on September 1 of that year. Analysis of the bill noted the burdens on county jails throughout Texas, many of which were filled to capacity. The law at the time effectively required police to take people into custody for Class A and Class B misdemeanors. The bill amended Article 14.06 of the Texas Code of Criminal Procedure to create exceptions to this requirement. For certain offenses, police could issue a citation instructing a person to appear before a magistrate at a specified time and place, much like a ticket issued for a traffic violation. This applies to Class A and B marijuana possession, as well as certain misdemeanor offenses under the Texas Penal Code.

Pardons are part of the constitutional authority of an executive, such as the President of the United States or the Governor of Texas, in criminal cases. Late last year, the presidential pardon power was in the news after the president pardoned an Arizona sheriff who had been convicted of criminal contempt of court. This led to debates, both in and out of the courtroom, over the extent of the pardon power. In Texas criminal cases, the governor’s pardon power is specifically limited by the Texas Constitution, requiring the prior recommendation of a board appointed by the Texas Legislature.The U.S. Constitution grants the president the “Power to grant Reprieves and Pardons for Offences against the United States,” with impeachment as the only specified exception. U.S. Const. Art. II, § 2, cl. 1. The Office of the Pardon Attorney (OPA), part of the U.S. Department of Justice, accepts petitions for clemency for convictions in federal district courts, the Superior Court of the District of Columbia, and military courts-martial. See 28 C.F.R. § 1.1 et seq. The president may decide to issue a pardon, however, without the recommendation of the OPA, or even without a petition for clemency. Presidents may issue a pardon at any time during their term. Recent presidents have often issued multiple pardons shortly before leaving office.

The Texas governor has authority to grant full pardons “upon the recommendation and advice of a majority of the” Board of Pardons and Paroles (BPP). Tex. Const. Art. 4, § 11(b); 37 Tex. Admin. Code § 143.1. The governor can grant a temporary reprieve of up to thirty days in capital cases without going through the BPP. Recently, the governor of Texas has issued a small number of pardons at the end of each calendar year.
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While drug laws at the federal and state levels classify a vast array of “controlled substances,” two in particular have stood out in recent political and legal debates. The legalization of marijuana for medical use is now a reality in at least 26 states, including Texas. Several states have gone a step further and legalized the distribution and possession of small amounts of marijuana for recreational use. At the same time, opioid use is on the rise across the country, and the number of deaths resulting from overdoses have led many to call it an “epidemic.” Both drugs are scheduled as controlled substances, but the similarities mostly end there. Some research suggests that allowing medical marijuana use may reduce the number of opioid overdose deaths. Federal officials, however, continue to view opioid use as a matter of criminal enforcement rather than public health. The federal government’s approach to these issues is likely to influence the Texas criminal justice system’s response.

The term “opioid” can refer to almost any drug derived from opium, including heroin. In its current usage, it usually refers to prescription painkillers like hydrocodone and oxycodone, as well as synthetic products like fentanyl. Heroin is classified as a Schedule I controlled substance, meaning it has “a high potential for abuse” and “no currently accepted medical use.” 21 U.S.C. §§ 812(b)(1), (c)(I)(b)(10), (c)(I)(c)(10). Fentanyl and many other pharmaceutical opioid products are Schedule II controlled substances, meaning that, while addictive, they have medical uses. Id. at §§ 812(b)(2), (c)(II)(b)(6). The Drug Enforcement Administration moved hydrocodone from Schedule III to Schedule II in 2014, largely because of the increase in overdose deaths. 79 Fed. Reg. 49661 (Aug. 22, 2014).

Scientific studies have not shown marijuana to have addictive properties at all similar to those of opioids. It is nevertheless classified in Schedule I alongside heroin. 21 U.S.C. §§ 812(c)(I)(c)(10). Numerous state medical marijuana laws dispute the assessment that the drug has no accepted medical use. The Texas medical marijuana law is among the most restrictive in the country, and it allows the use of “low-THC cannabis” only in the treatment of intractable epilepsy. See Tex. Health & Safety Code § 487.001 et seq., Tex. Occ. Code § 169.001 et seq.

Marijuana’s legal status has recently undergone major changes. The federal Controlled Substances Act (CSA) still places marijuana in its most highly restricted category, but more than half of the states in the U.S., including Texas, now allow medical marijuana to some extent. Colorado, California, and several other states have legalized the production, sale, and possession of small amounts of marijuana for recreational purposes. This has led to legal disputes over whether states like Colorado have exceeded their constitutional authority. For criminal justice advocates in Texas, where marijuana remains a highly controlled substance, law enforcement attention to suspected interstate drug trafficking raises a variety of constitutional civil rights questions.

The CSA classifies “marihuana” as a Schedule I controlled substance. 21 U.S.C. § 812(c)(I)(c)(10). The statute prohibits “manufactur[ing], distribut[ing], or dispens[ing]” a controlled substance, or “possess[ing] with intent to” do any of the aforementioned acts with a controlled substance. Id. at § 841(a)(1). Penalties depend on the identity and amount of the controlled substance involved. Texas marijuana law classifies THC, the active component of marijuana, in Penalty Group 2. Tex. Health & Safety Code § 481.103(a)(1). It identifies numerous offenses related to the manufacture, delivery, and possession of both Penalty Group 2 controlled substances in general and marijuana in particular. See, e.g. id. at §§ 481.116, 481.121.

The U.S. Constitution’s Commerce Clause authorizes Congress “to regulate Commerce…among the several States.” U.S. Const. Art. I, § 8, cl. 3. The CSA has faced constitutional challenges alleging that the federal government lacks jurisdiction to enforce federal drug laws within states that have legalized marijuana to various extents. The Supreme Court rejected this argument in Gonzales v. Raich, 545 U.S. 1 (2005), but it remains a controversial question. The federal government’s authority to deal with controlled substances that cross state lines, on the other hand, rather unambiguously falls within the federal government’s constitutional authority. This is where many recent legal challenges have arisen.

The use of roadside checkpoints by the U.S. Border Patrol has been controversial for as long as the practice has existed, with advocates for criminal justice in Texas and elsewhere voicing concerns about civil rights violations and other types of overreach. The Border Patrol’s primary mission, since the agency’s founding in 1924, has been to prevent unauthorized border crossings. Federal law gives the Border Patrol broad discretion to conduct searches within 100 miles of the border. 8 U.S.C. § 1357(a)(3), 8 C.F.R. § 287.1(a)(2). The U.S. Supreme Court has held that brief traffic stops at permanent checkpoints for the purpose of immigration enforcement do not violate the Fourth Amendment. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). However, Border Patrol checkpoints, such as the one at Sierra Blanca in West Texas, are often used for drug interdiction and other law enforcement purposes unrelated to immigration. In addition to questions about the constitutionality of these practices, a recent report from the federal government also casts doubt on their efficacy.

The U.S. Supreme Court based its ruling in Martinez-Fuerte, in large part, on the border search exception to the Fourth Amendment’s search warrant requirement, but it limited warrantless activity to “brief questioning routinely conducted at permanent checkpoints.” Martinez-Fuerte, 428 U.S. at 566. Anything further would have to be “justified by consent or probable cause.” Id. at 567. The government’s interest in immigration enforcement, the court held, justifies “minimal…intrusion on the interests of motorists.” Id. at 562. The court used a similar analysis of the balance between law enforcement and individuals’ expectation of privacy in a ruling that allowed “sobriety checkpoints” intended to catch drunk drivers. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

Roadside checkpoints for general law enforcement purposes, meaning checkpoints that are not specifically intended to identify undocumented immigrants or to prevent drunk driving, have not received the Supreme Court’s approval. In City of Indianapolis v. Edmonds, the Supreme Court held that the “general interest in crime control” does not, by itself, justify a roadside checkpoint. 531 U.S. 32, 41 (2000). That case involved a checkpoint where police pulled vehicles over to use drug-sniffing dogs to detect illegal narcotics. This is similar to practices at many Border Patrol checkpoints near the border. The Fifth Circuit has directly held that the border search exception does not justify warrantless searches for illegal drugs at Sierra Blanca, ruling that the Sierra Blanca checkpoint was not the “functional equivalent of the border.” United States v. Jackson, 825 F.2d 853, 854 (5th Cir. 1987) (en banc).

Digital communications technology continues to pose questions about the extent of the Fourth Amendment’s protections against warrantless searches and seizures. Both federal and Texas criminal laws tend to progress at a much slower rate than technology. The U.S. Supreme Court has found in favor of defendants challenging searches of some new technologies, but every time the court makes such a ruling, several new technologies appear and raise new questions. A recent article in the Washington Post addresses the increasing use of devices that connect to the internet and how this affects Fourth Amendment rights. Police have used data from various “smart” devices both to corroborate and to refute statements by witnesses and suspects. One law professor describes this practice as “sensorveillance.” Whether collection of such data without a warrant violates the Fourth Amendment is an unresolved question.

For much of this country’s history, courts analyzed Fourth Amendment claims by looking at the extent of physical trespass on private property. Ninety years ago, Justice Brandeis objected to this standard, noting that Fourth Amendment violations are possible even “without a physical seizure” of evidence. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). This remark specifically referred to a police officer who obtained information from papers belonging to a defendant without ever physically intruding on the defendant’s property. It could also apply to digital searches conducted today.

The “physical trespass” standard gave way to “reasonable expectation of privacy” with Katz v. United States, 389 U.S. 347 (1967), which involved warrantless eavesdropping on telephone calls. In the 50 years since Katz, the Supreme Court has ruled against warrantless searches involving various technologies. These include the use of thermal imaging to look inside a private residence, Kyllo v. United States, 533 U.S. 27 (2001); recording a car’s movements with a global positioning system (GPS) tracker, United States v. Jones, 565 U.S. 400 (2012); and searching a cellphone after an arrest, Riley v. California, 573 U.S. __ (2014).

Federal and state laws regarding both medical and recreational use are coming more and more into conflict. More than half of the states in the U.S., as well as the District of Columbia, allow the possession and use of marijuana for medical purposes. Federal law, on the other hand, classifies it alongside the most highly restricted controlled substances. The current U.S. Attorney General (AG) has repeatedly stated an intention to crack down on legal state medical marijuana programs. A group of medical marijuana patients, including a father and daughter who relocated from Texas to Colorado so that the daughter could obtain relief from intractable epilepsy, have filed suit against the AG and other federal officials and agencies. Washington, et al. v. Sessions, et al., No. 1:17-cv-05625, complaint (S.D.N.Y., Jul. 24, 2017). The plaintiffs allege that the federal government’s scheduling of marijuana as a controlled substance violates the Due Process Clause of the Fifth Amendment, unlawfully restricts some plaintiffs’ freedom of travel between states, and exceeds the authority conferred by the Commerce Clause.

Of the five schedules established by the Controlled Substances Act (CSA), Schedule I is the most restrictive. It is defined to include substances with a “high potential for abuse,” “no currently accepted medical use,” and a “lack of accepted safety for use…under medical supervision.” 21 U.S.C. § 812(b)(1). Schedule I has included “marihuana” since its original enactment. Id. at § 812(c)(I)(c)(10). The Washington lawsuit alleges that “the Federal Government does not believe, and…never has believed” that marijuana meets these three criteria. Washington, complaint at 4.

Texas is among the states that have authorized medical marijuana to some extent, although in Texas’ case, the extent is not far at all. The Texas Compassionate-Use Act only applies to “low-THC cannabis.” This means cannabis products that contain, at most, “0.5 percent by weight of tetrahydrocannabinols” and at least “10 percent by weight of cannabidiol.” Tex. Occ. Code § 169.001(3). This essentially minimizes the active component of marijuana, THC. It may only be prescribed for the treatment of intractable epilepsy after a patient has tried two “maximally titrated antiepileptic drugs” without success. Id. at § 169.001(2).

A common criticism heard in recent years of federal law enforcement activities on the Texas-Mexico border involves the assertion that the border area, and a significant area extending inland, is a “Constitution-free zone.” While this phrasing involves quite a bit of hyperbole, federal law gives federal immigration authorities jurisdiction over an area extending up to 100 miles into U.S. territory. When at or near the border, the “border search exception” to the Fourth Amendment’s search warrant requirement allows certain types of warrantless searches and seizures. As Customs and Border Protection (CBP) and the Border Patrol conduct more enforcement activities, the extent to which the border search exception applies to activities further inside this 100-mile zone has come into question in Texas drug crime and other criminal cases.Under the border search exception, law enforcement officials may conduct limited searches and seizures, without a warrant or probable cause, at border crossings, airports, seaports, and checkpoints set up near the border like the Sierra Blanca checkpoint in West Texas. The exception derives from the right of a country to exercise control over its borders, but courts have generally held that the exception only allows brief questioning about immigration status or citizenship and matters relating to customs enforcement. Any additional search or seizure requires a reasonable suspicion of unlawful activity. See Almeida-Sanchez v. United States, 413 U.S. 266 (1973).

The 100-mile zone in which immigration officials may operate is based on authority granted by the Immigration and Nationality Act (INA). It allows warrantless searches of vehicles “within a reasonable distance from any external boundary of the United States.” 8 U.S.C. § 1357(a)(3). “External boundaries” include the entire U.S.-Mexico and U.S.-Canada land borders, as well as all coastlines extending 12 nautical miles out to sea. 8 C.F.R. § 287.1(a)(1). “Reasonable distance” is defined as 100 air miles inland from an external boundary, although certain customs or immigration officials have discretion to increase or reduce this distance. Id. at §§ 287.1(a)(2), (b).

Law enforcement officials conducting searches at border crossings, checkpoints, seaports, and airports routinely expand the scope of their inquiries beyond basic immigration-related questions. Most border stops that receive attention from the news media involve drug-related seizures and arrests. The justification for this is based in part on the enforcement of customs laws, and also on limiting searches to situations in which basic questions about immigration and citizenship lead to a “reasonable suspicion” of other unlawful activity.