DA: Treatment, Not Jail for Marijuana

Davidson County District Attorney Glenn Funk points to data showing incarceration for simple possession of marijuana has declined. Photo by Clint Confehr

By Clint Confehr

NASHVILLE, TN — In the wake of a new state crime lab policy — simple possession marijuana “cases will receive no further testing” — Davidson County’s district attorney says treatment is better than jail.

“If the only way to prove the case is with a lab report, and we do not have a lab that is willing to test for the THC content, then we are not going forward on those cases,” District Attorney Glenn Funk said carefully because details matter.

Metro police got a crime lab under Mayor Karl Dean. It works like the state lab.

“Virtually all drug testing conducted at the MNPD Crime Laboratory is at the request of the district attorney’s office,” police spokesman Don Aaron says. “Rarely is marijuana seized as part of a misdemeanor possession case requested to be tested by [prosecutors]. Testing focuses on felony cases.”

Funk’s office treats possession of less than half an ounce of marijuana “as a health issue, not a criminal issue,” Funk said. On nearly all simple possession cases, drug classes and/or public service work are offered before court and can lead to dismissal.

That’s here. Statewide, prosecutors in the Tennessee District Attorneys General Conference have “a wide variety of opinions with regard to legalization of marijuana … medicinal use … and keeping marijuana criminalized,” Funk said. TDAGC takes a position when there’s consensus. There’s no consensus on simple possession.

In Metro’s booking room, “We’ve looked at the case. We’ve told (suspects,) ‘Alright, your first court appearance is going to be 4-6 weeks from now. If you have done this and this, then we will dismiss the case and you’re never really going to have to go before a judge [and] you wouldn’t have to plead guilty.’”

Attending court is different from standing in front of a judge. Arrest records remain. With another citation or “some sort of growing criminal activity … we could take the [new] case more seriously,” Funk said.

He also spoke against racial bias. “One of the ways to eliminate that is to take the issues that are health issues … We’re not going to let that continue to handicap folks. We’re going to see what we can do to support them and make sure they either get some drug counseling, or have the specific deterrence.” Prosecutors can tell repeat offenses they may get hard public service work, not a health class. “But we’re not going to saddle you with a criminal conviction in most of the cases.”

Funk has statistics to substantiate that. In 2013, there were nearly 5,500 inmate days in jail for simple possession. It was down nearly 75 percent four years later. This year, the number of jail days might still be less than 100. “And, every one of those folks went to jail because they missed court, not because we advocated jail time.”

Lawmakers legalized hemp, anther cannabis plant, with CBD, containing up to 0.3 percent tetrahydrocannabinol, THC, the psychoactive ingredient of marijuana.

“The issue,” Aaron says, “is being able to quantify the percentage of THC or CBD in a substance (marijuana or hemp). The MNPD Crime Laboratory is presently able to determine whether a substance contains more THC than CBD or vice versa, but not the percentage … We anticipate being able to test for the THC percentage in early 2020 with new laboratory equipment.”

Mike Lyttle, the assistant director of the Tennessee Bureau of Investigation who supervises the state’s crime labs, explained his Aug. 26 “no further testing” policy to criminal justice officials statewide saying it’s not that the TBI isn’t willing to test. The TBI can and will conduct more accurate tests if prosecutors request them. Lyttle’s point to criminal justice officials: testing is “very resource intensive.”

It’s like emergency room triage. Doctors treat a gunshot wound victim before someone with the flu. It’s a public safety priority. Should the crime lab test evidence for a simple possession case before an attempted murder case?

Defense attorneys consulted by The Tennessee Tribune, and others quoted by WTVF agree with Lyttle: “chemical color testing presumptively indicate[s] the exhibit is marijuana,” or hemp. Presumption is insufficient conviction, the lawyers said. Funk agrees.

“That presumptive test is not conclusive; can’t come anywhere close to being beyond reasonable doubt, and we would not even attempt to have that admitted as evidence,” Funk said. But, Tennessee’s supreme court ruled, the issue as to whether a sample is illegal marijuana is an element of the crime that can be proven in ways other than a lab test. That includes, “the defendant admitting that it was marijuana.”

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