In Texas, marijuana arrests remain racially targeted

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After serving eight years in prison and 12 on parole, Lewis Conway Jr. was not about to go back. 

The 6-foot-6 Austin native had served his time and turned his life around. Where more than three decades earlier he was involved in gang activity and arrested for a violent felony, he had since fallen in love and landed a job with the advocacy group Grassroots Leadership. He published self-help books, became ordained as a minister and even ran for public office. In Conway, supporters and social justice advocates saw a charismatic leader who was redefining the possibilities of post-prison life. 

Yet Conway’s future seemed to hang in balance last March when he found himself caught up in the criminal justice system once again, this time for an alleged behavior most of the country would like to see legalized: marijuana possession.

The odds were stacked against Conway, who, as a Black person, is more than three times as likely to be arrested for marijuana possession than a white person in the United States. A recent ACLU report analyzing marijuana arrests between 2010 and 2018 reveals that even though rates of consumption among the two races are the same, a wide gap persists in arrest rates across every single state and most counties. That disparity is especially apparent in Texas, which leads the country in the number of marijuana arrests. 

“It’s blatantly obvious that there’s a double standard [between Blacks and Whites]” Conway said. “When I look at the disparity between Black and White arrests, for me, having been Black all my life, I’m used to it.”

Conway drove from his residence in Austin to San Antonio with his wife Nicole last March. The couple had planned a weekend of relaxation and their favorite Tex-Mex restaurant to celebrate their four-year anniversary. But the romantic getaway quickly turned south.

Conway recalls smoking outside his hotel one evening when a security guard called the cops. Conway, now a 50-year-old, had recently begun taking CBD to treat his seizures. He had no health insurance at the time and couldn’t afford to see a neurologist who would have likely prescribed pharmaceutical interventions.  

When the cops arrived, Conway said they smelled marijuana and recovered what was left of his joint. They proceeded to arrest him, though they didn’t bother to test the miniscule amount of CBD — less than one gram. Had they tested the substance, they would have discovered that it contained less than .3 percent of tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana. The federal 2018 Farm Bill clarified that marijuana contains more than .3 percent THC. Anything less is legal hemp.

That Conway was smoking hemp, not marijuana, was never addressed. He said his appearance as “Big and Black” incited assumptions — that he was not a hotel guest but was loitering and that he was smoking not for health reasons but recreationally. Conway spent that night in jail, while Nicole remained in the hotel, thinking about how she’d find the funds to bail out her husband.

“For us, we were out of town, we had spent our money on a hotel room and a car,” Conway said. “So the prospect of having to stay another night, we just didn’t budget that in, on top of having to pay a bond.”

Even after Nicole bailed Conway out of jail, the arrest continued to disrupt Conway’s life. He drove back and forth between Austin and San Antonio over the next several months to make court appearances, several of which were cancelled. “I showed up five or six times only to be told to come back,” he recalled, adding that the time and costs of transportation took a toll.

Having studied criminal law during his time in jail years earlier, Conway knew enough legalese to advocate for himself. He told his public defender he refused to accept a plea bargain. He’d done that before — in 1992 Conway accepted a plea deal for voluntary manslaughter. This time, he was willing to go to trial.

“The reason why I took a plea bargain for voluntary manslaughter is because I had actually killed someone,” he said. “I was not guilty of smoking marijuana.”

In Texas, possession of small amounts of marijuana (up to two ounces) is a Class B misdemeanor carrying a maximum punishment of 180 days in jail and a $2,000 fine. Because Conway had a previous violent conviction, the district attorney was pushing to raise the charge to a Class A misdemeanor, which carries a higher fine and longer jail time. 

Conway continued to fight the case, and in the summer of 2019, his public defender shared the good news that the case was dropped.

Still, the marijuana arrest remains on his rap sheet and will be a burden he carries as he applies for housing, employment and any federal assistance.

“A marijuana arrest can carry lifelong implications, and those go from incarceration to criminal conviction to losing housing and loss of job,” said Nick Hudson, Policy and Advocacy Strategist for the ACLU. “You might lose financial aid eligibility. If you are undocumented, you can be separated from your families and be deported.”

Organizations like the ACLU have been pushing for common-sense marijuana legislation in Texas for years. Most recently, they supported State Rep. Joe Moody, D-El Paso, who introduced House Bill 63 last year. The bill would have prevented police from arresting people for possessing an ounce or less of marijuana, and it would switch possession to a Class C misdemeanor carrying a maximum $500 fine.

Moody had been pushing for marijuana decriminalization since 2015, when he first filed the bill. Then, the measure gained little traction among representatives, even when he filed it again in 2017. Only last year did the bill make it onto the House floor. Though the bill ultimately died in the Texas Senate, last year marked significant progress, with the lower chamber voting 98-43 in favor of the bill.  

“Slowly but surely the dynamic in the Texas House has changed,” Moody said. “And the issue of criminal justice reform broadly became something that both Republicans and Democrats cared about.”

Over the past few weeks, the movement for marijuana legalization has gained traction, as advocates have suggested that taxing recreational cannabis could be a viable strategy to offset the economic impacts the state has felt from the coronavirus. The Texas chapter of the National Organization for the Reform of Marijuana Laws (NORML) recently called on Gov. Greg Abbott to call a special session to regulate marijuana for adult use and expand medical cannabis.

Moody says he is working on a new bill he plans to introduce in the next legislative session. He hopes that bill will create a retail market for marijuana.

“I certainly think the situation we are in lends itself to a legal market,” Moody said. “The sooner we get into the legal market in Texas the sooner we can have an impact on budgets.”

Legalization is only part of a broader approach when it comes to marijuana reform. Without deliberate action to mitigate racial disparities, they can persist even with legalization.

On average, in states that legalized marijuana through taxation and regulation, Black people are still 1.7 times more likely to be arrested for possession. In some states, such as Maine and Massachusetts, the racial disparities in marijuana possession arrests were even larger in 2018 than in 2010.

The ACLU report puts forth recommendations that go beyond legalization. Those include granting clemency to anyone incarcerated on a marijuana conviction and ensuring marijuana possession and other low-level offenses are not included in performance measures for federal funding.  

Moody added that those who have been most harmed by criminalization should be able to access the marijuana retail market. In some states, those with prior drug convictions are prohibited from participating in the legal marijuana market, preventing them from profiting from legalization and furthering the cycle of disparity. In other states, it can be cost prohibitive to enter the retail market, further ensnaring people of color within the trafficking of those substances.

“We need to make the licenses available to a broad array of folks,” Moody said. “You can’t price people out. If you don’t open up access to gain the economic benefit, that’s another lens to view racial disparity through. As we build this bill, we are certainly going to look through the lens of whether what we are doing is going to help mitigate racial disparity or whether it will further exacerbate it.”  

Today, over a year after Conway was arrested for marijuana possession, he is in New York. He sounds happy and healthy over the phone. He remains passionate about criminal justice reform and works on projects for the ACLU’s national office.

Through his view of the criminal justice system, marijuana reform is simply the low-hanging-fruit in a deep-rooted problem that extends through our entire criminal justice system. When Conway thinks about the fact that, in some Texas counties like Van Zandzt, you are 13.63 times more likely to be arrested for marijuana possession as a Black person than as a white person, his mind races to the larger implications.

“In a qualitative way, what comes to mind is the protesters who recently stormed the Texas State Capital and were white. We know all across America that if they were Black, they’d be dead,” Conway said, speaking of the conservative activists calling for an end of social distancing restrictions aimed at limiting the spread of coronavirus.

“Creating an environment where there’s a disparity in who is prosecuted and who is arrested and who is detained over marijuana is not just about the plant,” he said. “It’s about the culture.”

Photo: Norman Posselt/Getty Images

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