Texas Marijuana Law Blog-"The Pot Watch"

On May 8, 2008 in the Texas Senate Chamber, partly in response to the complete failure by the current justice system to create measures to ensure the guilty are not only not convicted, but not put to death, the Innocence Summit was held. Put together in great part by Senator Rodney Ellis of Houston, Texas. Houston, Texas, especially Harris County, has perhaps one of the worst records for properly maintaining the chain of custody of State's evidence, fails to fully perform the duty of a full and proper investigation, and has, as perhaps every jurisdiction's issue, problems with prosecutorial misconduct, and a non-existent public defender system which inevitably has caused the loss of many person's freedoms. This systemic failure lives on the shoulders of state officials, investigators, and police departments as well as defense counsel. Texas just has a poor record of providing criminal defense to those who cannot afford private attorneys.

There are a multitude of reasons for Texas' disgusting record of locking up the accused, but innocent. The primary reasons that were discussed at the summit include but are not limited to the following:
Cross Cultural Misidentification

Mr. Brennan Moon, a white man, discussed spending 18 years, after being convicted by an El Paso jury, in prison for crimes he did not commit when he was misidentified by a non-white witness.

DNA Exonerations-
If we dare to call them "lucky", these men were lucky to have DNA to help them ultimately be released from their cells.

Mr. James Waller, a black man, spent 10 years, eleven months of his life in prison for a sexual assault crime he did not commit. Fifteen years he spent on parole as a registered sex offender. As he said, "my entire life was taken from me". He told his story, his history, the story of a man who thought he would never have to do what his great grandmother did as a slave, which was pick cotton. He lamented the loss of the chance to have a family and spoke of his family which is comprised of his four dogs. He described the generations he gets to see grow which are that of his first dog who gave birth to the second and so on...

Mr. Alejandro Hernandez, a brown man, spent 13 years in prison, also convicted by an El Paso jury in what he referred to as "trial by ambush." DNA evidence is what released him from prison. He is the only man on the panel to speak of Proposition 64 which will allow DNA evidence to exonerate the wrongfully accused IF the identification of a witness is at issue in trial. Mr. Hernandez rightfully challenges this law as being too narrow and seeks support for broadening the use of DNA evidence to exonerate those convicted who want to challenge their conviction.

Mr. James Glen, a black man, convicted by a Dallas jury, spent 10 years in prison, 15 years on parole when DNA evidence exonerated him of the crimes for which he had served hard time, did not commit, and spent 5 years of his life as a registered sex offender. Amazingly, this man stood before the Senate Chamber and told us all he still loves God, and his message: "Don't be afraid."

Mr. Billy Smith, a black man, spent 19 years behind bars for a crime he did not commit. Exonerated after most of the years he has on this planet were consumed by a system of injustices. He made the very real point that he was lucky to have DNA exonerate him but as he pointed out, most prisoners will not have the benefit of DNA to prove their innocence and they will die in prison. Before Mr. Smith left, he pointed to every one of the people on the floor of the Senate that day and said, "Greatest thing God ever created was the pen" he then challenged lawmakers to use it to create better laws.

Mr. Carlos Lavernia a brown man, native to Cuba, convicted out of Austin. Mr. Lavernia was wrongfully accused and exonerated with DNA evidence for the crime of rape.

Mr. Thomas McGowen a black man, spent 22 years of his life in prison and his message: "This could happen to you."

Mr. Charles Chapman a black man, gave up 27 years of his life.

Mr. James Lee Woodward a black man, perhaps the most recent to be exonerated, also gave up 27 years of his life.

After the eight attending lawmakers heard from these nine wrongfully convicted men, the rest was left up to the likes of Senator Ellis and Mr. Barry Scheck (NY Innocence Project) to provide answers to other lawmakers on how to prevent future wrongful convictions.

Yet, the answers have all been given, and perhaps there are more to be learned but from what we know now and from what we heard at this summit, the common threads are as we stated above:
1. Improper police conduct
2. Dishonest and inferior investigations
3. Criminal defense attorney ineffective assistance of counsel
4. Unreported breaks in the chain of custody of evidence that is later used to convict the accused
5. Judges who fail to prevent any of the above in their court
6. Politicians who fail to properly use their pens

Noticeably missing from this summit was the experience and insight of a single female exonerated prisoner.

According to a recent Washington Post article by N.C. Aizenman, one in one hundred Americans are in prison, at a cost to the states of $50 billion a year and to the federal government of $5 billion a year. "One in nine black men ages 20 to 34 is behind bars. For black women ages 35 to 39, the figure is one in 100, compared with one in 355 for white women in the same age group." Mr. Aizenman points out that China is second to our prison population with a much larger populous. Are all of these prisoners, all of these people serving time -- lengthy time, longer sentences than ever before in history -- be where they should be?

We often receive calls from people wanting to know what the penalties are for various drug trafficking allegations by law enforcement. We have listed them below as listed on the DEA website for reference.

Federal Trafficking Penalties from the DEA Website


DRUG/SCHEDULE
QUANTITY
PENALTIES
QUANTITY
PENALTIES

Cocaine (Schedule II) 500 - 4999 gms mixture First Offense:

Not less than 5 yrs, and not more than 40 yrs. If death or serious injury, not less than 20 or more than life. Fine of not more than $2 million if an individual, $5 million if not an individual

Second Offense: Not less than 10 yrs, and not more than life. If death or serious injury, life imprisonment. Fine of not more than $4 million if an individual, $10 million if not an individual


5 kgs or more mixture
First Offense:

Not less than 10 yrs, and not more than life. If death or serious injury, not less than 20 or more than life. Fine of not more than $4 million if an individual, $10 million if not an individual.

Second Offense: Not less than 20 yrs, and not more than life. If death or serious injury, life imprisonment. Fine of not more than $8 million if an individual, $20 million if not an individual.

2 or More Prior Offenses: Life imprisonment



Cocaine Base (Schedule II) 5-49 gms mixture 50 gms or more mixture
Fentanyl (Schedule II) 40 - 399 gms mixture 400 gms or more mixture
Fentanyl Analogue (Schedule I) 10 - 99 gms mixture 100 gms or more mixture
Heroin (Schedule I) 100 - 999 gms mixture 1 kg or more mixture
LSD (Schedule I) 1 - 9 gms mixture 10 gms or more mixture

Methamphetamine (Schedule II) 5 - 49 gms pure or 50 - 499 gms mixture 50 gms or more pure or 500 gms or more mixture
PCP (Schedule II) 10 - 99 gms pure or 100 - 999 gms mixture 100 gm or more pure or 1 kg or more mixture

PENALTIES

Other Schedule I & II drugs (and any drug product containing Gamma Hydroxybutyric Acid)
Any amount


First Offense: Not more that 20 yrs. If death or serious injury, not less than 20 yrs, or more than Life. Fine $1 million if an individual, $5 million if not an individual.

Second Offense: Not more than 30 yrs. If death or serious injury, not less than life. Fine $2 million if an individual, $10 million if not an individual

Flunitrazepam
(Schedule IV) 1 gm or more
Other Schedule III drugs
Any amount


First Offense: Not more than 5 years. Fine not more than $250,000 if an individual, $1 million if not an individual.

Second Offense: Not more 10 yrs. Fine not more than $500,000 if an individual, $2 million if not an individual

Flunitrazepam (Schedule IV) 30 to 999 mgs
All other Schedule IV drugs
Any amount
First Offense: Not more than 3 years. Fine not more than $250,000 if an individual, $1 million if not an individual.

Second Offense: Not more than 6 yrs. Fine not more than $500,000 if an individual, $2 million if not an individual.

Flunitrazepam (Schedule IV) Less than 30 mgs
All Schedule V drugs
Any amount
First Offense: Not more than 1 yr. Fine not more than $100,000 if an individual, $250,000 if not an individual.

Second Offense: Not more than 2 yrs. Fine not more than $200,000 if an individual, $500,000 if not an individual.


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Federal Trafficking Penalties - Marijuana

DRUG QUANTITY 1st OFFENSE 2nd OFFENSE
Marijuana 1,000 kg or more mixture; or 1,000 or more plants Not less than 10 years, not more than life
If death or serious injury, not less than 20 years, not more than life
Fine not more than $4 million if an individual, $10 million if other than an individual
Not less than 20 years, not more than life
If death or serious injury, mandatory life
Fine not more than $8 million if an individual, $20 million if other than an individual

Marijuana 100 kg to 999 kg mixture; or 100 to 999 plants Not less than 5 years, not more than 40 years
If death or serous injury, not less than 20 years, not more than life
Fine not more than $2 million if an individual, $5 million if other than an individual
Not less than 10 years, not more than life
If death or serious injury, mandatory life
Fine not more than $4 million if an individual, $10 million if other than an individual

Marijuana more than 10 kgs hashish; 50 to 99 kg mixture

more than 1 kg of hashish oil; 50 to 99 plants
Not more than 20 years
If death or serious injury, not less than 20 years, not more than life
Fine $1 million if an individual, $5 million if other than an individual
Not more than 30 years
If death or seroius injury, mandatory life
Fine $2 million if an individual, $10 million if other than individual

Marijuana 1 to 49 plants; less than 50 kg mixture Not more than 5 years
Fine not more than $250,000, $1 million other than individual
Not more than 10 years
Fine $500,000 if an individual, $2 million if other than individual

Hashish 10 kg or less
Hashish Oil 1 kg or less

Why all the hooha about April 20th? Seriously, what could Adolph Hitler's birthday have to do with pot? Why would pot smokers want to align themselves with this day at all? Truth is, it is not about the day at all. The urban myth is that back in the late 1970's at a Northern California High School (San Rafael-to be precise) students would get out of school and meet at a certain location at 4:20 PM to smoke pot. Thus, 420, 4:20, and 4/20, all have the same certain significance, it is a moment of recognizing the mutual enjoyment among pot smokers to smoke pot. Like hearing your favorite song on the radio, you especially love that everyone listening is hearing "your" favorite song. It is the universality of the moment, the known sharing, and very different from listening to your favorite song on your iPod, where it is only you enjoying the moment. Just like with the other things we enjoy, it is better when shared, thus 420. So as they say, "pass the joint, my friend".

I think as a nation we have to start listening to what crack addicts have to say. Seriously. It only makes sense. Take our newest pop star, Amy Winehouse. Obviously the woman loves crack, just search You Tube for her video smoking a crack pipe. So, what's my point? We listen to crack addicts so long as they sing. In fact, we love listening to them. Whitney had quite an audience too. Why? Why are we so quick to dismiss all those crack addicts we pass on the streets. You know you do. You pass by them and if they so much as ask you for a nickel, you just look away-I do too. But, what if we actually listened to these very sensitive folks who obviously have to do drugs to deal with all the stimulus they are receiving? They have our attention so long as it is rhythm and beat, and for this we give them grammy awards, lots of them. So, next time you pass someone who is hyped up on crack and doing the infamous crack walk-try to slow them down and see what they have to say.

Tim Stevens, a 53 yearold man, who suffers from cyclical vomitting, was acquitted by an Amarillo jury this week in Texas. Mr. Stevens had less than four grams of marijuana in his possession. The jury found him not guilty based on a medical necessity defense. The U.S. Supreme Court in U.S. v. Oakland Cannabis Buyers Club held that the medical necessity defense did not apply to the Controlled Substance Act (CSA). Marijuana remains a schedule I drug, meaning it is erroneously determined, based on junk science, to be addictive and provide no medical benefits. Despite pot, for now, being a schedule I drug and the CSA, Mr. Stevens was still able to successfully use the medical necessity defense.

Mr. Stevens said he will try Marinol. Marinol is a chemically produced pharmaceutical but, government approved marijuana substitute. Patients who have used this substitute for pot have complained about the side effects and its lack of efficacy. I am sure many New Jersey Senators would disagree with this finding by the patients who actually use cannabis to alleviate their suffering from a milieu of illnesses especially since the good Senator of New Jersey has received over $890 million in donations from pharmaceutical companies over the more recent campaign periods. To be even more specific, over $4 million from pharmaceutical companies was given to the full House Committee on Energy and Commerce republican members alone. For instance, ranking republican member for the Energy and Commerce Committee's sub-committee on Health, Nathan Deal receives on average over $275K from pharmaceutical companies to his campaign as does sub-committee member Mike Ferguson who is averaging over $855K in pharmaceutical company contributions to his campaign (the good Senator from New Jersey), while ex officio member to the sub-committee on Health, Joe Barton is receiving nearly $200K from pharmaceutical companies for his campaign.

These contributions do not include Hospital contributions, nor does it include contributions from Individual Doctors or Insurance Companies.

So much is given to the New Jersey Senator because that is where all the pharmaceutical companies live. But, I digress....

It will be interesting to see where Texas goes with this decision. Let's hope Texas is next in line for a Compassionate Use Act of its own, similar to California's. If Texas could approve medical cannabis it would become the eleventh state to do so. The ten other states to legalize and/or decriminalize the use of medical marijuana are as follows : Hawaii, Maine, Alaska, Arizona, Colorado, California, Nevada, Oregon, Washington, and Maryland. These states have all passed reformation of marijuana laws through ballot initiatives. Texas is not a ballot initiative state and therefore reform must come through the legislature. Call your legislator today! Ask your legislator to seriously consider decriminalizing medical marijuana and tell your legislator about an experience you have had where you have witnessed the benefits of marijuana.