‘Not Ready For That’: How Alabama Republicans Thwarted Marijuana Decriminalization

Photo Credit: Jeff Chiu

Nine states and Washington, D.C., allow for the recreational use of marijuana. Another 22 states have decriminalized the drug, and public opinion suggests legalization is supported by more than 60 percent of Americans.

But in the halls of the Statehouse in Montgomery, conservative lawmakers pushed back this past session against efforts to ease up on the tokers.

Their concerns varied. Ultimately, two bills to decriminalize marijuana possession never made it to either the House or Senate floors for debate.

Standing atop the anti-marijuana barricade was the House Judiciary Committee, where the Republican majority defeated the only decriminalization action to come before them.

Rep. Mike Holmes, R-Wetumpka, was one of the “No” votes. He said his constituents simply “were not ready for that.”

‘Major obstacle’

Future attempts at decriminalization – let alone a full-out legalization effort – are in flux. The two sponsors of the bills introduced this spring rolling back pot penalties aren’t seeking re-election: Rep. Patricia Todd, D-Birmingham; and Sen. Dick Brewbaker, R-Pike Road.

“We feel sure someone will pick up where we left off and move it forward,” said Todd, who has tried for years to lessen the penalties. “We don’t know who that will be.”

Said Brewbaker: “There is clear bipartisan support to have a serious look at our marijuana statues.”

Brewbaker’s SB251, which was nearly identical to Todd’s HB272, managed to survive committee scrutiny. The Senate Judiciary Committee, with a 6-4 vote on Feb. 21, endorsed it.

But the bill did not go any further. The House Judiciary Committee, on the same day, shot down Todd’s HB272 with a 7-5 decision. All seven “No” votes were Republican. Rep. Mike Ball of Madison was the only Republican to vote in favor of Todd’s measure.

To borrow a Cheech & Chong motive title, Brewbaker’s Senate bill also went “Up in Smoke.”

“There was no reason to move it out when the House Judiciary Committee made (their vote) clear,” said Brewbaker.

Under Alabama law, someone who possesses any amount of marijuana for personal use is guilty of a Class A misdemeanor, punishable by up to a year in jail and a $6,000 fine. Those who have been convicted before of possessing marijuana face a Class C felony, punishable by up to 10 years in prison and a $15,000 fine.

The two failed bills tied the offense levels to the amount of marijuana:

•Possession of 1 ounce or less of marijuana would be punishable only by a fine and would be reclassified as a violation instead of a misdemeanor. That would apply to both first and second offenses.

•Third and subsequent offenses would still be labeled a violation, punishable by a fine up to $500. No jail time nor misdemeanor charge would be rendered.

•Possession of 1-2 ounces of marijuana would have been a Class D felony, punishable by up to 5 years in prison. But the Class D felony could not count under the Habitual Felony Offender Act, which can put an inmate behind bars for life. Crimes such as possession of marijuana, controlled substances, theft of property, and possession of or fraudulent use of a credit or debit card are crimes considered Class D felonies.

•Possession of more than 2 ounces of marijuana would be a Class C felony.

Brewbaker defended his bill as something that made sense but confronted political obstacles during an election year.

“I’m not talking about legalization, but if you get caught with less than an ounce of marijuana, the state and taxpayers are better served by imposing a heavy fine than they are with jail time,” he said.

He added, “It doesn’t seem to make much sense to me to hang Class C misdemeanors and felonies that will hang around these people throughout their lives.”

Brewbaker also pitched SB51, which would have raised the amount of marijuana that would label someone as a drug trafficker, soon to receive a mandatory prison sentence.

Presently, that level is 1 kilo – 2.2 pounds. Under SB25, it would be 10 pounds, the same as in other states, such as South Carolina, Brewbaker said.

“If they find two full grown marijuana plants in your back yard and the combined weight is over 2.2 pounds, you can be charged with trafficking even if there is no evidence you are trafficking,” Brewbaker said. “It’s a mandatory three years in prison.”

Rep. Paul Beckman, R-Prattville, and a member of the Judiciary Committee, said Todd’s bill went further than Brewbaker’s. He said he wished that Brewbaker had kept trying to move SB25 forward.

“A lot of these offenders are not drug pushers and the bottom line is we don’t want to ruin someone’s life,” said Beckman, who said Brewbaker’s decision to pull SB51 from consideration was “premature.”

“That was Dick’s call,” he said. “As far as Todd’s bill, basically, what it would do is legalize marijuana.”

Brewbaker said, however, “I didn’t see a whole lot of point to it. That committee is dead set on keeping things the way they are.”

Said Todd, regarding her decriminalization push: “I think that many of the members are supportive of it. But they are afraid their constituents will think they are soft on crime, somehow. I think that is a major obstacle.”

‘Against decriminalization’

None of the states that allow for the recreational use of marijuana are in the South.

Few southern states have decriminalized the drug as well, though a rash of cities have pushed to roll back penalties. In Jackson, Mississippi, city officials voted unanimously in February to effectively limit the maximum penalty of 1 ounce or less of marijuana to a $100 fine.

Atlanta approved a similar measure last October. In Nashville, government officials moved forward in 2016 with an ordinance that reduces the penalty for people who are found possessing a half-ounce of marijuana or less to a $50 fine or 10 hours of community service.

In New Orleans, city officials urged police to spend less time arresting people on simple marijuana possession. Arrests have plummeted: From June 2016 to March 2017, only 1 percent of encounters between police and someone accused of possessing marijuana resulted in an arrest; in 2014, the rate was 72 percent.

And the Big Easy hosted, for the first time this past week, a three-day marijuana conference.

Alabama city leaders have pushed to have marijuana penalties relaxed, such as in Tuscaloosa where city leaders urged state lawmakers in December to roll back pot penalties over concerns about jail overcrowding.

Alabama cities, unlike municipal governments in most other states, do not have home rule powers and cannot make changes without the Legislature’s approval.

Alabama is also among the deepest of the red states, and home to U.S. Attorney General Jeff Sessions who is leading the anti-pot movement from the federal level.

Sessions, in January, rescinded guidelines from the Obama administration that allows states to legalize marijuana with minimal interference from federal authorities. Sessions has also raise health and safety concerns about marijuana, claiming that marijuana leads to heroin use.

Alabama also has among the highest concentration of Christians who identify as evangelical Protestants, a segment that opposes legalizing marijuana, according to a Pew Research Center analysis.

Among white evangelicals, 60 percent believe marijuana should remain illegal, while only 38 percent back legalization. By contrast, those labeled as “unaffiliated” to a religious identity support legalization by a 78-20 percent difference.

The polling also shows a partisan split. Democrats overwhelmingly support legalization, by a 69-28 percent margin. Republicans, who dominate the elected offices in Alabama, oppose it by 55-43 percent.

“I get feedback from all 45,000 of my constituents and they are against decriminalization,” said Representative Holmes, whose legislative district includes Autauga and Elmore counties – two conservative bastions that overwhelmingly backed Donald Trump in the 2016 presidential election and supported Republican Roy Moore in last year’s special Senate contest.

‘Quantify amount’

Rep. Jim Hill, R-Moody, chairman of the House Judiciary Committee, said his decision to vote against the lightening the marijuana law had more to do with a lack of scientific testing for people who are caught by police driving while impaired after smoking marijuana.

Moody, a former judge, said there are no tests, such as Breathalyzers, that can determine whether someone is impaired from marijuana.

Police, for instance, can determine someone’s blood-alcohol content almost immediately after pulling him or her over for suspicion of DUI. Marijuana use is determined through blood tests, and those tests are not often readily available, requiring police to make judgement calls.

“I have an issue with allowing a substance in your body that we know impairs you and affects the ability to operate a vehicle,” Hill said. “We cannot quantify that amount.”

Recent national news reports have showcased the concerns about impaired driving in states where recreational use of marijuana is legal.

NBC Nightly News, this past week, interviewed a Denver police sergeant who told host Lester Holt that authorities are seeing “more people driving high on marijuana.” Colorado was among the first states to legalize recreational use of marijuana in 2012.

“It can be a little difficult trying to prove someone is driving high and impaired by marijuana,” Sgt. Rick Coisman told Holt. “Alcohol is scientific and validated and accepted by the courts. Marijuana, we’re just not there yet.”

A Colorado Department of Transportation survey showed that 70 percent of marijuana users admitted to driving under the influence of the drug at least once during the past year. More than a quarter of those, the survey shows, are driving high daily.

The Montgomery-based Alabama Appleseed Center for Law and Justice, in its research backing decriminalization, cited a National Highway Transportation Administration study and analysis from academic researchers that found, unlike alcohol, there is no clear correlation between specific blood levels of Tetrahydrocannabinol (THC) – the principle psychoactive element in marijuana – and impairment.

The group also cited a study from the American Journal of Public Health that found no increase in vehicle crash fatalities in either Colorado or Washington, relative to similar states, after they legalized marijuana.

Hill, though, said he is concerned about DUI instances increasing from marijuana decriminalization, leaving law enforcement without a solution to screen impaired drivers.

Brewbaker disagrees with Hill’s assessment. He said police already have the authority to remove someone who they believe is driving impaired.

“A cop has to have some reason to pull someone over if they are acting irrationally or are falling asleep at the wheel, there are all sorts of ways,” he said. “You don’t have to know what is causing the impairment.”

‘Heavy lift’

Brewbaker and Todd said that Alabama is spending too much time and money on arresting people for possessing small amounts of marijuana at the same time opioid use is fast becoming a top killer.

Said Todd: “It’s about the amount of resources the state has to pay out on marijuana possession especially small amounts. It takes a police officer’s time, and it takes the court’s time. We all realize we need to divert those resources to the opioid epidemic.”

Indeed, an analysis by Alabama Appleseed shows that more Alabamians were arrested for marijuana possession in 2016 than for opioids, cocaine, and synthetic narcotics.

The group also showed that Alabama spent $13.3 million on the enforcement of marijuana laws in 2010, that enforcement disproportionately affects blacks who are 4.5 times more likely to be arrested for possession than whites, and that the state’s laws lack clarity between marijuana possession and distribution.

Appleseed contends that two people arrested for possessing the same amount of marijuana in Alabama can face different punishments based on the “subjective decision” of a government official.

Frank Knaack, executive director with Appleseed, said the marijuana possession laws are an “example of the kind of systematic racial disparity” that exists in Alabama’s criminal justice system.

“Marijuana possession in Alabama for the first offense is a misdemeanor, but the second offense is a felony,” Knaack said. “You can have a little amount, if arrested, and that can bring along a felony.”

Hill, the House Judiciary Committee chairman, said there is little evidence to suggest that simple marijuana possession arrests are crowding Alabama’s state prisons. A proponent of drug courts and intervention programs, Hill said most inmates are in prison because of a violent offense and “not because they were smoking marijuana.”

Jennifer Kenney, assistant professor at the Department of Criminology and Criminal Justice at the University of Alabama, said she doesn’t believe if Alabama decriminalized low amounts of marijuana possession, there will be a “huge drop” in the state’s overcrowded prisons.

Kenney, though, believes that Alabama should legalize marijuana possession to help provide medical support for people struggling with crippling opioid addictions.

She said by taxing marijuana, revenues can be used to help fund programs aimed at getting people help with other drug addictions.

“It could potentially help the state of Alabama and our budgets if used in a way to actually increase the health of everyone,” she said. “People don’t understand that marijuana can really help people fight pain.”

But, she added, “We are home to Jeff Sessions. He has said time and again, he doesn’t see the difference between marijuana and heroin and controlled substance. I think (legalization) is a heavy lift for a place like Alabama.”