Numerous statutes throughout the country identify and prohibit controlled substances, creating an elaborate set of drug schedules containing hundreds of plants, synthetic compounds, and other materials. Correct identification of an allegedly illegal drug is a key part of proving guilt beyond a reasonable doubt. Police officers charged with enforcing drug laws cannot reasonably be expected to recognize all, or even most, of these substances on sight. Field kits used to test suspicious substances, however, have a very poor track record for reliability and have led to multiple wrongful convictions in Texas drug crime cases. Police often focus on a small number of drugs that, because of their general familiarity, tend to stand out among the multitudes of substances contained in state and federal schedules. A recent case, which involved the inaccurate visual identification of a hibiscus plant as marijuana, demonstrates this problem.

Both the federal Controlled Substances Act and its Texas equivalent prohibit the possession and distribution of marijuana. In Texas, it is an offense to “knowingly or intentionally possesses a usable quantity of marihuana.” Tex. Health & Safety Code § 481.121(a). The offense ranges from a Class B misdemeanor to a felony punishable by life imprisonment, depending on the amount. Texas prohibits “delivery” of marijuana, defined as “transfer[ring]…to another a controlled substance,” with similar penalties. Id. at §§ 481.002(8), 481.120. Delivery of marijuana to a child is a second-degree felony, regardless of the amount. Id. at § 481.122. All of these offenses require proof that the defendant acted “knowingly” and that the substance at issue was, in fact, marijuana.

A lawsuit filed by a married couple in Pennsylvania illustrates how quickly misidentification of an alleged controlled substance can go wrong. Cramer v. Nationwide Mut. Ins. Co., et al, No. 17-11043, complaint (Pa. Ct. Comm. Pleas, Butler Cty., Nov. 16, 2017), removed to No. 2:17-cv-01657 (W.D. Pa., Dec. 22, 2017). Although the case involves a civil lawsuit, one erroneous field test could have made it a criminal matter. According to the plaintiffs’ complaint, an insurance agent visited their home in October 2017 to survey damage from a fallen tree. They allege that the agent took photographs of several hibiscus plants, mistakenly believing them to be marijuana plants. The agent allegedly turned these photographs over to local police and reported that the plaintiffs were growing marijuana on their property.

Texas continues to impose strict prohibitions on marijuana possession, even as other states substantially reduce criminal penalties or even legalize recreational use altogether. A bill introduced in the Texas Legislature this year, HB 81, would have eliminated criminal penalties for possession of small amounts of marijuana. This should not be confused with legalization, however. The bill would have replaced the criminal penalty with a civil penalty. A person would have to pay a fine but would not face jail time or gain a criminal record. As the 2017 legislative session draws to a close, the bill’s prospects do not look good. Still, it often takes more than one session to gain enough support for certain bills, and this bill made it farther than many other bills addressing this issue. When the next session begins in 2019, a similar bill might have a better chance.

State law deals with marijuana separately from other controlled substances. The classification of the offense of possession of marijuana (POM) depends on the amount that a person “knowingly or intentionally possesses.” Tex. Health & Safety Code § 481.121. At a minimum, POM is a Class B misdemeanor. This occurs when someone possesses a “usable quantity” up to two ounces, and it can result in up to 180 days in jail and a fine of up to $2,000. Id., Tex. Pen. Code § 12.22. Possession of more than two ounces, but no more than four ounces, is a Class A misdemeanor, which has twice the maximum potential penalty as a Class B misdemeanor. Tex. Pen. Code § 12.21. POM becomes a felony under current law for amounts in excess of four ounces. The lowest-level felony in Texas, a state jail felony, could result in a maximum fine of $10,000 and 180 days to two years in jail. Id. at § 12.35.

HB 81 would have amended the statutory provisions dealing with the lowest-level POM offense. Possession of one ounce of marijuana or less would no longer be subject to criminal penalties, while possession of more than one ounce, up to two ounces, would be a Class B misdemeanor. POM of one ounce or less would result in a civil penalty of $250 but no arrest or criminal conviction. A fourth or subsequent violation of this provision would be a Class C misdemeanor, which is punishable by a fine of up to $500 but does not include jail time. Id. at § 12.23.

Continue reading

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.
Continue reading

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.
Continue reading

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).