Dissenting State Supreme Court Justice Criticizes Sentence for Marijuana Possession

Laws addressing the possession and sale of marijuana may vary significantly among states, thanks to numerous changes in recent years. Courts may continue to apply harsh penalties in some states but not others. In a recent decision, the Louisiana Supreme Court affirmed a particularly harsh sentence for marijuana possession. State v. Howard, No. 2015-KO-1404, slip op. (La., May 3, 2017). The chief justice criticized the court’s decision in a dissent, noting both the “rapidly relaxing social attitudes” and “changing laws (even in Louisiana) providing more lenient penalties relative to marijuana possession.” Id. at 1 (Johnson, C.J., dissenting).

Texas laws dealing with marijuana possession can be difficult to untangle. The severity of a possession charge mainly varies based on the amount in question. Possession of two ounces or less is punishable as a Class B misdemeanor, while possession of more than 2,000 pounds is punishable by life imprisonment. Tex. Health & Safety Code § 481.121. The statute requires proof that a defendant possessed the marijuana either knowingly or intentionally.

The sections that define the offense of “manufacture or delivery” of a controlled substance, meaning one other than marijuana, include “possess[ion] with intent to distribute.” See, e.g. Tex. Health & Safety Code § 481.112(a). Intent to distribute is not expressly included as part of either possession or delivery of marijuana in Texas. Id. at §§ 481.120, 481.121. That said, evidence of intent to distribute may be used as an aggravating factor to impose a harsher sentence.

Louisiana’s current laws regarding marijuana are, in some ways, less harsh than Texas laws. Possession of two ounces or less in Texas, as a Class B misdemeanor, can result in up to 180 days in jail. Tex. Pen. Code § 12.22. A first offense in Louisiana involving no more than 14 grams—about one-half ounce—has a maximum penalty of 15 days in jail. La. Rev. Stat. § 40:966(E)(a)(i). A first offense involving more than 14 grams, with no specified upper limit, can result in a six-month sentence. Id. at § 40:966(E)(a)(ii). While possession of 2,000 pounds or more can lead to life imprisonment in Texas, the sentence in Louisiana is a mandatory minimum of 10 years, up to a maximum of 40. Id. at 40:966(F)(3).

Where Louisiana’s marijuana laws may be harsher than those in Texas is in the use of prior offenses to enhance sentencing. This was a key part of the dispute in Howard. The defendant was convicted of possession of 18 grams of marijuana, slightly less than two-thirds of an ounce. The prosecution argued that the packaging of the marijuana in multiple small bags indicated intent to distribute. The presence of a firearm in the defendant’s house, according to the state, also merited sentencing enhancements. The court imposed a sentence of 18 years.

In her dissent to the state supreme court’s ruling affirming the conviction and sentence, the Chief Justice noted that a sentence of “exactly one year per gram of marijuana” suggested that the “defendant’s sentence was arbitrary rather than the result of careful consideration of the appropriate sentencing factors.” Howard, dissent at 1. She further challenged the finding of intent to distribute, citing prior cases that focused on the amount of marijuana, rather than the number of bags.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Marijuana attorney Michael J. Brown has practiced in West Texas state and federal courts for over 20 years. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with an experienced criminal justice advocate.

More Blog Posts:

Accidental Overdose Could Lead to Much More than Drug-Related Charges in Some States, Texas Criminal Lawyer Blog, January 25, 2017

Appellate Court Decision Addresses Conflict Between Federal and State Medical Marijuana Laws, Texas Criminal Lawyer Blog, January 25, 2017

Medical Marijuana Laws Cause Shifts in Court Rulings on Marijuana Odor and Probable Cause for Search Warrants, Texas Criminal Lawyer Blog, September 7, 2016.

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