Bipartisan coalition aims to decriminalize marijuana possession

State lawmakers are planning a bipartisan push to loosen Arizona’s marijuana possession laws, which are considered by many as among the harshest in the United States.

Possession of any amount of marijuana under two pounds is a class 6 felony, making Arizona the only state where possession of any amount of the drug can bring a felony charge. Former members of the Legislature’s ad hoc committee on criminal justice reform, a group of three Republicans and two Democrats, are crafting legislation for the 2019 legislative session that would reduce marijuana possession crimes, including for drug paraphernalia, to either misdemeanors or petty offenses, which would put them on par with traffic offenses.

Rep. Ben Toma, R-Peoria, who served on the committee before it was disbanded over the summer, said groups from both the left and the right have been attending committee meetings, and there’s a broad consensus on marijuana possession. The other legislators who served on the committee were Republican Reps. Tony Rivero and David Stringer, and Democratic Reps. Kirsten Engle and Tony Navarrete.

“I really do think marijuana possession is one of those places where we can make this happen, despite objections that might be there,” Toma said.

The group hasn’t yet decided whether to reduce it to a misdemeanor or a petty offense, and it hasn’t settled on an amount that would be designated as simple possession. But there is a bipartisan willingness to tackle marijuana possession as part of the committee’s justice reform agenda.

Current law dictates that any amount of marijuana under two pounds that isn’t intended for sale carries a potential penalty of up to two years in prison for a first-time offender, though prosecutors can reduce such charges to class 1 misdemeanors.

According to the Arizona Department of Corrections, only 207 people are in prison today solely for marijuana possession charges. But many more are on probation. Data that the Administrative Office of the Courts provided to the criminal justice committee show that there are 5,014 probationers in Arizona who have only a marijuana charge, and another 6,030 who only have a drug paraphernalia charge.

Toma said conservative organizations such as the Arizona chapter of Americans for Prosperity have been part of the committee’s meetings, and support its plans for marijuana reforms. And he said he’s taken a “temperature check” with some of his Republican colleagues in the Legislature, and that many are receptive to the committee’s plans.

“It’s not something that I would be pushing unless I felt it would have a high likelihood of success,” he said.

Furthermore, Toma said he believes Gov. Doug Ducey is open to making changes to the state’s marijuana laws.

“When it comes to possession, I don’t think there’s going to be any pushback from the Ninth Floor,” he said.

The Governor’s Office declined to comment on the justice reform committee’s plans for marijuana possession laws.  

Ducey has taken several tentative steps on justice reform, pushing plans to reduce recidivism by making it easier for convicted felons to work and for re-entry centers for incarcerated drug offenders who need treatment before they’re released.

But Ducey was also a leading opponent of Proposition 205, a 2016 ballot measure that would have legalized marijuana for recreational use, raising millions to help defeat the proposal.

Though Toma boasts Republican support for the marijuana plan, there will likely still be no shortage of opposition. And he acknowledged that it will largely come from his fellow Republicans.

Rep. Eddie Farnsworth, R-Gilbert, said he’s willing to listen to advocates of the proposed legislation, but he’s skeptical about the nascent plan.

“I’d have to sit down with them and see what their reasons are. Is it simply cost? Is it because they don’t think marijuana is a dangerous drug? There are a lot of reasons why people want to decriminalize or even create recreational marijuana,” Farnsworth said. “Historically, I have not really been in favor of decriminalizing marijuana. But it doesn’t mean we can’t look and do some kind of cost-benefit analysis, and see if there’s a balance that makes sense.”

The opposition of influential county attorneys like Yavapai County’s Sheila Polk and Maricopa County’s Bill Montgomery could play a major role in sidelining any attempt to decriminalize marijuana. Polk, who helped lead the opposition to a 2016 ballot proposition that would have legalized marijuana for recreational use in Arizona, said the current system is working, and that she will oppose any push to reduce marijuana possession to a misdemeanor.

Polk said the issue is more complicated than simply saying that marijuana possession is a felony. She emphasized that, by law, a person can’t be incarcerated for marijuana possession until at least the third offense, a fact that she said is often left out of conversations on marijuana laws. And, as with any class 6 felony, prosecutors have the option of reducing it to a misdemeanor, which Polk said she and most other prosecutors in Arizona do with simple marijuana possession cases.

Keeping the option of felony charges allows the criminal justice system to get people into treatment that they wouldn’t normally seek in exchange for reducing charges to misdemeanors, she said. In Yavapai County, Polk said her office generally offers probation for first and sometimes second possession offenses, and reduces possession to paraphernalia charges when people complete their probation.  

“I think Arizona is a leader in how we address possession of drug offenses across the board, with a focus on treatment, with using the criminal justice system to force people into treatment,” Polk said.

Kurt Altman, an attorney who works with the conservative justice reform organization Right on Crime, disputed that the current system works. He said some prosecutors, especially in Maricopa County, still file felony charges for first-time marijuana possession offenses. And the thousands of people who are on probation for minor marijuana offenses are a financial drain on the government, he said.

“What’s the cost of that for marijuana possession? I think there’s better ways to spend money,” Altman said.

Further complicating efforts to reform marijuana possession laws is the expectation that advocates of legalizing recreational marijuana will return with a new ballot measure in 2020. Opponents worry that decriminalizing marijuana in 2019 could help pave the way for outright legalization at the ballot the following year.

“When you start saying decriminalizing and essentially working towards legalizing marijuana, I am a little more skeptical about that,” Farnsworth said.

Kevin DeMenna, a lobbyist who represents medical marijuana dispensaries, said “the moment is arriving” for decriminalization. And he noted that the idea of liberalizing marijuana laws is gaining a lot of ground in conservative circles, with groups like the influential Koch network throwing their weight behind criminal justice reform issues.

But he was skeptical that the moment will arrive in 2019. It’s more likely that voters will simply opt to legalize marijuana at the ballot in 2020 first.

During the 2018 legislative session, Rep. David Stringer, R-Prescott, who at the time served as the justice reform committee co-chair, sponsored a bill that would have, among other provisions, reduced possession of less than five pounds of marijuana to a misdemeanor offense. Stringer’s bill would have also reduced penalties for methamphetamines and other drugs to a class 6 felony. The bill died quietly in the House Judiciary and Public Safety Committee, where Farnsworth, the committee’s chair, declined to hear it.

“Anything before legalization in 2020, anything before that is good. I think the real answer is it’s unlikely to pass the political tolerance test at the Legislature, so that may be more practical, looking at the ballot, than anything,” DeMenna said.