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 legitimate pharmacists, the provision applied equally to the ordinary citizen who might take along a few pills like antibiotics or darvon when he was away from home, rather than toting his medicine cabinet in his briefcase. Quite a common occurrence, but also a crime—as Senator A. R. Schwartz noted incredulously. “Do you mean to tell me,” he demanded of Von Dohlen, “that these valium pills I have in my pocket could get me two years in jail, just because I took them out of that little bottle this morning instead of carrying it up here in my pocket?” Von Dohlen nodded his assent. “That doesn’t make any sense at all,” said Schwartz. “And besides, two years just for possessing valium? What’s so bad about valium?”
Heads of the other conferees bobbed in agreement; valium, a mild relaxant, is widely used around the Capitol by legislators seeking to cope with the incredible tensions of the session. Two years for possessing valium without a prescription, or outside the Rx bottle? It didn’t make any sense to them; no sense at all. They knew what valium was; they knew people who used it; and they were profoundly certain that nobody ought to wind up in jail for that.
THE NEXT MORNING THE ISSUE CAME up again. Another Senate conferee, Charles Herring, had put in his first appearance. When he heard what the House bill proposed to do with valium, he too pulled out some tablets from his pocket and protested that the whole idea was outrageous. That afternoon a chastened Von Dohlen announced to the committee that he was willing to delete the clause that penalized possession of prescripion drugs outside their original container, and would also cut the penalty for possession without a prescription to no more than six months. The Senators, harrumphing, agreed.
Here was a drug the legislators recognized. Never mind that valium may be more dangerous, some experts say, than many of the mystery drugs for which these same legislators imposed penalties of ten or twenty years in prison. Finally all those isomers and seven-syllable words became vividly real, and they knew, instinctively knew, that putting people behind bars for abusing this drug made “no sense at all.” Presented with something within the range of their own experience, their minds immediately began to rev up and purr with neat cause-effect relationships. A palpable wave of relief filled the room—relief at finding something familiar amid all the gobbledy-gook of the Controlled Substances Act, relief at being able to deal with it in rational forms and categories.
This assurance was precisely what most legislators lacked, and knew they lacked, about most of the drugs they were being asked to regulate. It is no accident that the Legislature took every illicit drug they recognized, except marijuana, and raised the possession penalty to life imprisonment for heroin, speed, and LSD. Penalties for the vast middle group of obscure drugs remained about the same as current law—but few members were willing to risk the political peril of seeming “soft” on anything anyone had ever heard of. Particularly in the headlong Gadarene rush to “get the pusher” on the House floor, the decision to control a drug was regarded as synonymous with slapping the highest possible penalty upon it. Precisely because the members knew the names but were strangers to the drugs themselves, demagoguery dragged debate to the lowest common denominator. A member who questioned the penalty was treated as though he was questioning whether the drug should be controlled at all—and by extension he was questioning whether it was “harmful” to the sons and daughters of Texas.
Locked into this logic it was impossible for the legislators to extricate themselves, and they were helpless to resist the lynch-mob atmosphere that required them to “prove” their concern by imposing the highest conceivable penalties on drugs of public notoriety. Thus a member like Fred Agnich could proclaim his emancipation from the hoary myths of marijuana by voting for its decriminalization, then moments later bellow out his approval of the amendment that punished possession of LSD by life in prison. Had he known someone who had taken LSD, he probably could never have voted as he did, regardless of the political furies. As it was, he never saw the inconsistency. Dallas Republicans use valium, not LSD.
Had the members understood as much about the dozens of obscure drugs as they knew first-hand about valium, the new Act might well have been substantially different. Their willingness to virtually rubber-stamp the governor’s irrational penalties for these drugs can be traced not so much to their constituents’ pressures (how many voters have ever heard of psilocybin, ibogaine, mescaline?) as to their own deep troubled uncertainties. They were afraid to gamble not so much because they feared retaliation as because (at least for the best of them it was because) they truly did not know what they were up against, truly feared that the half-remembered stories in the newspapers might be right, truly feared that the wellbeing of the people whom they governed might hinge on their mistakes. In such dilemmas are the best-intentioned men vulnerable to the worst.
The marijuana penalties met with general satisfaction among the members. They are probably close to the most reasonable that could have been passed, considering the degree to which the governor had incited the hard-liners to influence the anti-marijuana climate. (In support of his bill reducing the marijuana penalty, Briscoe summoned a carefully-chosen parade of witnesses to tell how bad marijuana was, a somewhat contradictory procedure.) But the bill passed by the Senate, establishing a maximum penalty of seven days in jail for up to eight ounces of marijuana, almost certainly was far closer to the personal views of a majority of the legislators than was the version they finally agreed upon. Many legislators will tell you that most of their colleagues would actually prefer decriminalization if the decision could somehow be secretly left up to them.
How sobering, then, to witness the workings of naked politics on the formulation of the criminal law. If these members had worn judicial robes and presided over a court of law, few if any of them would convict an innocent man in order to satisfy some public clamor. They would be affronted by the mere suggestion of such a thing. Yet on the floor of the House or Senate they could vote willingly for laws that classify as criminal certain conduct which they themselves believe should not be punished—justifying their action on the grounds that it must be done to satisfy the public clamor. There is a difference between punishing a man who has done no harm and authorizing others to punish him; but there is not much difference. We have different expectations from our judges and our lawmakers—or at least they think we do.
Observing this performance by men who knew that what they did was not enough, the practical mind is at odds with the humane mind. The practical mind says: they chose the only way open to improve the barbaric law we had; they did the best they could; they did it brilliantly. The humane mind answers: they chose the way of Pilate.
The principal question mark now hanging over the new act is whether its provisions for resentencing the current crop of marijuana prisoners will be upheld by the Texas courts. A section of the act, retained at the insistence of the Senate conferees, allows any person who is currently serving a sentence for a marijuana offense to petition for a new sentence based upon the revised penalty structure now in effect. Thus, someone serving a sentence of, say, five years for possession of an ounce could be resentenced to no more than six months. Assuming he had already served more time than this, he would be eligible for immediate release. Someone serving a sentence of twenty or thirty years for possession of six ounces of marijuana could be resentenced to no more than ten years, and less if the judge felt a shorter time was appropriate. He too would be eligible for release once he had served the substitute sentence.
Attorney General John Hill has opined that the resentencing procedure infringes the Governor’s clemency power under the Texas constitution. Since a flood of petitions from the numerous marijuana prisoners was expected to begin promptly on August 27, the issue should be resolved soon. For many of the young people now in the Department of Corrections, the ultimate decision is critically important. If resentencing is upheld, the new penalties automatically become retroactive. Neither the governor nor the Board of Pardons and Paroles nor the judge himself can refuse to give a prisoner the benefit of them. But if it is not upheld, they will be forced to serve out their sentences, often of exorbitant length, as punishment for an offense which the law no longer regards as quite that serious after all. Their one hope then is for ordinary parole—but this depends on the willingness of the governor and the Board of Pardons and Paroles to grant it.
Without the Board’s approval, the governor is powerless to act. And the Board has shown no inclination to regard drug prisoners with any special sympathy, despite the Legislature’s obvious intent in passing the resentencing section. (The Senate also passed a concurrent resolution urging special parole consideration for marijuana, heroin, and cocaine offenders.) The Board takes the position that regardless of the reduction in penalties, current prisoners must serve out the customary one-third of their original sentence before parole will even be considered. Even then, they plan to continue their present policy of refusing parole automatically if the district attorney who prosecuted the case objects to the prisoner’s release. In the words of a member of the Board, “we don’t quarrel with the DA’s about it. That’s their business, however they feel. Some of these marijuana prisoners may be too dangerous to turn loose on the streets, and the DA’s know that better than we do.”
For many marijuana prisoners, this is tantamount to locking the door and throwing away the key. The district attorneys unanimously agreed at their recent state convention to resist the resentencing approach to the bitter end, and they have shown little interest in bringing their past convictions into line with the new penalties. Their attitude is a sobering reminder that although the law may change, some minds do not. The president of their Association, Bob Smith of Austin, noted that resentencing or parole could help those sentenced under the old law who were still serving time. “However,” he said, “why help them? They knew what they were doing.”
When England finally abolished capital punishment for such crimes as stealing a loaf of bread, and the King commuted the sentences of those bread-stealers who had been condemned to die, there must have been a prosecutor in some benighted comer of the realm who snorted, “Why help them? They knew what they were doing.”