Medical marijuana thrives but possession arrests continue by the thousands

Crime data published by the Arkansas Crime Information Center, which counts offenses somewhat differently than does the ACLU report, shows a similar trend since 2010. The ACIC data shows a small decline in marijuana possession offenses from 2018 to 2019, however, from 11,639 to 10,616. In 2019, medical marijuana first became available to patients in the state.

David Couch, the Little Rock lawyer who authored the medical marijuana amendment approved by voters in 2016, said he was not surprised by the modest dip in offenses. A significant number of people who once risked arrest by obtaining marijuana on the black market have now moved to the medical system, he said.

But the state still needs to reform its criminal laws regarding marijuana, Couch added. The arrest trends described by the ACLU report, he said, are “outrageous.”

On Wednesday, state Sen. Clarke Tucker (D-Little Rock) introduced a bill that would decriminalize possession of small amounts of marijuana. Under current state law, possession of less than 4 ounces is a misdemeanor punishable by up to one year of incarceration and a fine of up to $2,500. Senate Bill 499 would eliminate the misdemeanor charge for possession of less than an ounce, instead making it a “violation” that would carry a maximum $200 fine and could not be counted as a prior conviction.

Tucker said the prosecution of minor marijuana offenses is an inefficient use of the state’s limited resources and does not serve the goals of the criminal justice system. “Are we really keeping Arkansans safe by incarcerating someone that’s in possession of a small amount of marijuana?” he said. “Would that money be better spent in other ways?”

Overly punitive marijuana laws can work against public safety, Tucker argued. “Once a person has that conviction on their record, their chance of committing additional crimes in the future goes way up,” he said. “Their ability to get a job, get housing and lead a normal and productive life goes way down.”

In practice, attorneys say, most defendants do not see jail time for minor marijuana possession charges in the absence of other, more serious crimes. But the consequences of a conviction for marijuana possession can still be severe, including the loss of a job, a professional license, a driver’s license or child custody. A fine of a few hundred dollars can create spiraling financial hardships for some defendants. Probation or parole can be revoked after a positive drug test for marijuana in some cases.

“These consequences are real and tangible and they happen to tens if not hundreds of thousands of people annually,” said Paul Armenato, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), an advocacy organization headquartered in Washington, D.C.

Mike Kaiser, a Little Rock criminal defense attorney and former public defender, said the effects of marijuana enforcement are multi-generational. Even a misdemeanor conviction can reduce a parent’s earning potential, Kaiser said, impacting the lives of children and grandchildren.

“If your parents’ capacity decreases, studies show, so does yours,” he said. “There’s less inherited wealth. There’s more inherited debt. Parents likely aren’t able to go as far with their education.”

Andrew Thornton, a deputy public defender in Pulaski County, said first-time offenders caught in his jurisdiction with a joint and nothing else are typically given a citation and released without bail.

An offender with no criminal history can typically avoid a conviction if he or she doesn’t commit another offense for a certain period of time, Thornton said. In that case, the offender will typically still receive a civil penalty, such as a fine of $500 to $800. Fines are levied at the discretion of the judges and vary from court to court, but Thornton said he has never seen anyone fined the maximum $2,500.

Someone with a previous drug conviction or who has previously struck such an arrangement would be less likely to get another deal. In addition to a fine and court costs, an offender would receive a mandatory six-month suspension of his or her driver’s license, later paying $100 to have it reinstated.

While people in Pulaski County aren’t usually sent to jail for a misdemeanor marijuana charge, Thornton said, they may face additional charges for failing to pay fines or show up in court. Those secondary charges sometimes do result in jail time, he said.

“Jail is always a possibility,” Thornton said. “Not on the first sentencing, usually, but if you get behind on your payments, it’s a very common way to end up in jail on what would otherwise be a simple misdemeanor marijuana charge. Also, if you fail to appear in court, a judge will issue a warrant for your arrest.”

Possession of larger amounts of marijuana can bring more serious charges. Possession of more than 4 ounces is a Class D felony punishable by up to six years in prison and a fine of up to $10,000. If a person has had four previous drug convictions, possession of 1 to 4 ounces is also a Class D felony.

Disparities and discretion

Marijuana laws are also not enforced evenly, according to the ACLU report, which noted racial disparities vary from county to county.  In Crawford County, Black people are 9.1 times more likely to be arrested than whites. In Pope County, they are 5.3 times as likely, and in Craighead County they are 4.9 times as likely.

Tucker said his bill was motivated in part by the disparate impact that marijuana prohibition has had on the Black community. “I think we need to be doing everything we can to be breaking down the racial barriers that have been constructed over the generations in our state and in our country,” he said.

Holly Dickson, director of the ACLU of Arkansas, said law enforcement agencies and courts exercise a great deal of discretion in the enforcement of marijuana laws. The consequences of a minor offense vary depending on where an offender lives, what law enforcement officer they encounter, what prosecutor gets the case and what judge hears the case, she said.

“Like all things criminal justice-related, it depends on the people who have the power to enforce those laws,” Dickson said.

Larry Jegley, the prosecuting attorney in Pulaski County, said he draws a sharp distinction between individuals caught with a small amount of marijuana for personal use and drug traffickers who are caught transporting pounds of marijuana along with scales, weapons and cash.

“It’s just not worth putting the resources of the police, the prosecutor and the courts to bear on a minor and growingly acceptable thing in our community,” Jegley said.

Kaiser, who battled with the prosecutor’s office over its pursuit of low-level marijuana charges when he worked as a public defender, disagreed. “No one in this county has more power over how we prosecute marijuana cases than Mr. Jegley,” he said. “If he truly believes that, he wouldn’t file any.”

Prosecutorial discretion can reduce the severity of harsh laws. But leaving it up to prosecutors whether to pursue or discard charges can create its own set of problems, Kaiser said.

“It is ripe for discrimination …  It tends to vest in a manner that benefits people that look like me and not people of color,” he said. “The easiest thing in criminal law is defending a cop. The second easiest thing is a white college kid.”

In theory, Fayetteville has taken a more lenient approach to marijuana since 2008, when voters passed an ordinance making misdemeanor marijuana offenses the city’s lowest law enforcement priority. But in 2019, a group of activists published a report showing that the city was actually making more marijuana arrests, not fewer.

In 2008, according to the report, the Fayetteville police arrested 50 people for misdemeanor marijuana possession alone, meaning there were no other charges at the time of arrest. In 2018, the number was 192 — almost four times as many.

After the report was released, the Fayetteville Police Department required all of its officers to review the ordinance. Arrests for marijuana possession fell from 113 in 2019 to 16 in 2020, according to statistics provided by Anthony Murphy, a spokesman for the department. Citations for marijuana possession fell from 16 to 1 over the same period.

Murphy said Fayetteville officers frequently give warnings rather than citations or arrests for marijuana possession and did so even before the 2008 ordinance. But, he said, officers still must follow the law if they see something “egregious.”

Murphy said shootings are often tied to marijuana and other drugs. “People that are using misdemeanor amounts of marijuana are a huge part of that problem,” he said. “Marijuana does contribute to the violent crime that we are seeing here in Fayetteville.”

It’s uncommon for Fayetteville police to arrest someone for simply possessing a joint, Murphy said. Usually, an officer will seize the marijuana for destruction and give the offender a warning. Although the offender would not face criminal consequences, the incident would be logged as a warning in the police department’s computer system and would be visible to other officers in the future.

Policy reforms

Some of the people being arrested for minor marijuana offenses may be using the drug for medicinal purposes, just as cardholders do. But not everyone can afford a card, which requires paying up to $250 to doctors for a certification and another $50 application fee to the state. That’s “extremely unjust,” Kaiser said.

“Who is more likely to be able to get a card? People with means, people with knowledge,” he said. “It’s almost like we have created a system where you can buy out of criminal liability for this thing that a large number of people do.”

Meanwhile, medical marijuana has become big business in Arkansas. Even Little Rock billionaire Warren Stephens is investing: Late last year, Stephens and two of his sons joined a long list of owners of Good Day Farm LLC, which is among eight licensed cultivators vying to supply the state’s market.

Since the state’s first dispensary opened in 2019, more than 39,000 pounds of product have been sold, at a cost to consumers of more than $250 million. The sales have produced more than $26 million in state tax revenue that supports the medical marijuana program and the University of Arkansas for Medical Sciences. Cities and counties also levy local sales taxes.

Armento of NORML said the best way to reduce charges for marijuana possession is to legalize it for adults, or at least decriminalize it. Under adult-use legalization (often called recreational use) marijuana possession would not be subject to criminal or civil penalties, and commercial activities (such as sales, cultivation and trafficking) would be regulated and permitted. Under decriminalization, minor marijuana possession would still be illegal but would be treated as a civil offense rather than a criminal offense — similar to a speeding ticket.

Fifteen states have legalized marijuana for adult use. Those states and 10 others have fully or partially decriminalized marijuana, reducing the penalties for possession. Of Arkansas’s neighbors, Missouri and Mississippi have partially decriminalized marijuana, but offenders still risk jail time beginning with a second offense.

Tucker said his bill was an effort to move Arkansas on a similar path. “We can see the direction the country is moving on this,” he said. “I think recreational marijuana will most likely be legal everywhere in the country within a decade.”

But the bill faces an uphill battle in the conservative state legislature. It is nearly identical to a 2019 measure sponsored by former Rep. Charles Blake (D-Little Rock), which died in committee last legislative session without coming up for a vote.

The most likely route for marijuana reform is through the voters, rather than the legislature. Melissa Fults, a spokesperson for the Arkansas chapter of NORML, said the group will attempt to get adult-use legalization on the 2022 ballot through a constitutional amendment. The organization tried to get a similar measure on the 2020 ballot but the COVID-19 pandemic made it difficult to collect the required signatures.

Couch, the attorney who led the push for the medical marijuana amendment in 2016, said he has also been exploring the possibility of a ballot measure in 2022 to either legalize or decriminalize marijuana. Couch said he’s been doing preliminary polling on behalf of a client but declined to give further details. The chances of a reform measure appearing on the 2022 ballot are “better than even,” he said.

The 2016 amendment passed with the support of 53% of voters, but many people remain opposed to loosening restrictions on marijuana. Arkansas Surgeon General Greg Bledsoe, who is running for lieutenant governor, was a vocal opponent of the medical marijuana amendment in 2016 and remains so today.

“There are a lot of people, a lot of young people especially, who believe there’s no risk to it and that it’s actually healthy,” he said. “They are proceeding down that path not having all the information, and I am concerned they are going to be harmed by it.”

While Bledsoe said he would be against a legalization effort in 2022, he said he does not plan to make the issue a cornerstone of his campaign.

“I think that marijuana, if it were legalized in Arkansas, would be a hurdle that we would have to overcome as opposed to being a benefit — but I’m not going to spend all my waking hours trying to overturn the will of the people if they vote to have it legalized,” he said.

Even legalization or decriminalization would not be enough, ACLU Director Dickson said, considering thousands of Arkansans still face the consequences of past convictions. She cited a measure passed in Illinois that expunges state sentences for some marijuana convictions.

“This whole war on drugs has devastated American lives,” Dickson said. “We’ve got to stop doing that and start doing sensible things that honor and respect our human resources and Arkansans.”

This story is courtesy of the Arkansas Nonprofit News Network, an independent, nonpartisan news project dedicated to producing journalism that matters to Arkansans.