TEXAS, THE NEXT-TO-LAST state to treat all marijuana possession as a felony (and the last to take seriously its two-years-to-life penalty) quietly succumbed to the ebbing wave of the Sixties counterculture on August 27 as the Texas Controlled Substances Act went into effect. The event was duly commemorated by connoisseurs of the forbidden hemp at midnight celebrations in the privacy of homes across the state—celebrations tempered by the knowledge that even the “reform” law viewed them as deserving a few days or months behind the bars of their nearby county jail, and tempered, too, by a theatrical sense of the absurd that so much energy could have been expended by so many to pass/toughen/ moderate/repeal/amend/reform a Prohibition that was honored more in the breach than the observance. Connoisseurs of irony took note that this particular message-in-a-bottle was lifted from the sand on precisely that day which the more doctrinaire members of the counterculture would once have deemed most piquantly repugnant— Lyndon Baines Johnson’s birthday, a new state holiday. Sic transit gloria psychedelia.
THE LAW WAS PASSED BECAUSE TOO many of the wrong kids were being arrested. The story is really as simple as that. True, before the Legislature finally approved HB 447 a scant five hours before the 63rd session was gavelled to a close on the 28th day of May, the Capitol’s chambers and committee rooms had been the stage for much soul-searching, courage, foolishness, and villainy. But none of this would have happened had not marijuana jumped the tracks from the barrios and black neighborhoods to River Oaks, Highland Park, and Alamo Heights. The police in hot pursuit did not stop to notice that the rules were supposed to change too.
Eventually the state was peopled with good, solid, white middle-class parents who knew about that nice kid down the street, the Eagle Scout who made nothing but top grades in academics and deportment, whose parents were having to exhaust his college savings in lawyers’ fees to defend him on a felony charge of having a marijuana cigarette in his car. Their anxieties were eventually, but duly, transmitted into law. The fact was not lost on the Legislature’s black and chicano members, no mean connoisseurs of irony themselves.
Marijuana is but one of hundreds of drugs regulated by the new Act. It provides for a misdemeanor penalty of up to six months and a $1000 fine for possession of not more than two ounces of the stuff, and twice that penalty for possession of up to four ounces. Possession of more than four ounces is punishable as a felony, two-to-ten years in prison and a $5000 fine; identical penalties apply to sales of any amount and all but the smallest gifts. Because the judge is given the power to reduce these felonies to misdemeanors when to do so would “best serve the ends of justice,” it is theoretically possible for a marijuana dealer (as well as a user) to get off with a $1 fine. Texas appears to be the only state which allows such abstract leniency for “pushers.” The possession penalties now place Texas near the middle of the states.
Passage of a drug law confronts the individual legislator with a special sort of crisis. Drugs are different from almost every other problem he is called upon to “solve.” Most of the time he either knows what he is doing or knows that he does not know; be the issue tax reform or automobile insurance or wiretapping or school finance, if he does not understand it himself he at least has some idea of where to turn for answers that satisfy his mind. He knows other people—real people he can trust, constituents at home or experts in the state bureaucracy or lobbyists out in the hall—who can tell him, in a fashion he regards as credible, “here is how it is.”
With drugs he is lost on a sea of formulas and isomers and seven-syllable names for pills he has never seen; oxymorphine, bufotenine, ibogaine, methylphenobarbital, 3,4,5-trimethoxy amphetamine. What does this mean? Who is there to ask? What will happen if we make this a misdemeanor instead of a felony? There are no familiar faces in the doorway or the hall, no handy number in the Rolodex to tell him what to do. And the experts who do testify seem to disagree more often than they agree. Even for the member who wants to do right and damn the political consequences— especially for him—how is he to know?
No wonder the big electronic voting board lights up sluggishly on drug amendments in the House, as members hold back to get the drift of things in this particular chilling political blizzard, eventually huddling together like sheep in a cold wind. It is not cowardice that drives them to it, but raw uncertainty.
To be sure, part of this uncertainty is inflicted willingly by the members upon themselves; it could be avoided if they were more ready to make critical judgments about the information at their disposal, meager though it may sometimes be. During the consideration of the Controlled Substances Act, legislators were all too prone to say, “Well, the report of the National Commission on Marihuana and Drug Abuse says this about marijuana, but on the other hand Bob Smith [Travis County district attorney] says the opposite, so we just don’t know what to think.” Phony helplessness has its uses.
But for the most part their bafflement was genuine. This was luminously illustrated during the House-Senate conference committee deliberations late in the session, as Senators fought to preserve key vestiges of their moderate bill in the necessary compromise with the hard-line House product. House Sponsor Tim Von Dohlen, a pharmacist, had tucked away in an obscure section of the House version a provision that imposed a two-year jail term for possession of any prescription drug unless it was in a labeled bottle supplied by a licensed pharmacist.
Ostensibly aimed at penalizing distribution of prescription drugs by black marketeers in competition with