The High Cost of Hays County’s Decision to Keep Prosecuting Low-Level Marijuana Cases

Opinion: A new law legalizing hemp prompted prosecutors across the state to drop some low-level marijuana cases. But the district attorney in Hays County won’t be deterred.

Hays County DA Wes Mau.
Hays County DA Wes Mau. Facebook/Wes Mau for Hays County DA

Opinion: A new law legalizing hemp prompted prosecutors across the state to drop some low-level marijuana cases. But the district attorney in Hays County won’t be deterred.

Hays County DA Wes Mau.
Hays County DA Wes Mau. Facebook/Wes Mau for Hays County DA

Last month, Governor Greg Abbott signed House Bill 1325 into law, legalizing the production and sale of hemp with less than .3 percent tetrahydrocannabinol, or THC, the psychoactive ingredient in marijuana. But then came an unexpected twist. Crime labs across the state didn’t have the proper equipment to test for this level of THC, and consequently, prosecutors decided to drop hundreds of cases involving low-level marijuana charges.

Hays County District Attorney Wes Mau was not among them. Instead of taking a cue from other prosecutors in Texas, Mau opted to continue pursuing prosecution. As a Hays County resident for more than 16 years, I am worried about the message Mau’s no-tolerance decision is sending to residents directly impacted by these life-altering charges.

The Hays County Law Enforcement Center.  GoogleMaps

According to the Texas Department of Public Safety, the No. 1 arrest charge in Hays County since 2013 has been the possession of marijuana under 2 ounces. This fact is especially troubling considering how overpopulated the Hays County Jail is.

Since January, Hays County has spent over $1 million transferring inmates to other counties such as Bastrop, Bell, Blanco, Burnet, Caldwell, Guadalupe, McLennan, Limestone and Walker. Even more alarming is that the vast majority of detainees — upward of 80 percent — are held in the Hays County Jail or transferred to other counties for extended periods while their cases remain pending.

While some people still believe that a person only ends up in jail due to their own poor decision-making, it is widely documented that bias in the police force and throughout the justice system, especially in Texas, can play an integral role in whether or not someone is arrested and charged. About 70 percent of Texas prisoners are Black or Latino.

Mau’s decision to continue to prosecute low-level marijuana offenses should alarm residents who prioritize transparency from their local leadership — especially considering how common it is for detainees to lose their jobs, personal possessions and homes while they sit in jail. With his decision, Mau clearly chooses not to take this first step toward getting people out of jail and back into the workforce.

HB 1325 gives Hays County a legal and legitimate reason to stop planting people in jail for extended periods of time; it effectively saves the county money. On average, it costs $60 per day to hold a person in county jail.

There’s a broader issue at play here, too. If Hays County wants to adhere to the law, it needs to budget for the new and expensive laboratory equipment and accreditation required to test marijuana for the new legal levels. This could cost anywhere from $500,000 to $1 million per year to initiate and maintain, according to Peter Stout, president of the Houston Forensic Science Center. These are valuable dollars that could be put to use to reduce the backlog in our current criminal justice system, expand the community library and allocate more resources for low-income, underserved communities in the county. Or the money could be used to pursue important criminal justice policy initiatives like Cite and Release and LEAD (Law Enforcement Assisted Diversion). These policies provide people accused of certain offenses with the opportunity to be diverted to treatment and rehabilitation programs in lieu of incarceration. Versions of these diversion policies have already been successfully implemented in other parts of the state, including Bexar and Harris counties.

As Hays County officials continue to debate how to reduce the jail population, I hope they remember the needs of their concerned constituents and the people who have been forced to face the penal system without affordable or adequate legal representation. Declining to prosecute low-level marijuana offenses is a win-win for the county and for defendants. I hope that DA Wes Mau will reconsider his decision and prioritize the people most affected by his decision: the residents of Hays County.

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Faylita Hicks (pronouns: she/her/they) is a black queer writer. Her debut book, HoodWitch, is forthcoming October 2019 with Acre Books.


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