The Push For Salvia Regulation In Texas: A Repeat Of Marijuana Laws

State Rep. Charles “Doc” Anderson (R-Waco) has garnered a lot of headlines in recent weeks—including one in yesterday’s Dallas Morning News—for his push to regulate a substance known as salvia divinorum. The House Committee on Criminal Jurisprudence is examining whether or not to make the substance, which is a mild hallucinogen, illegal in Texas. Salvia is presently legal in Texas and more than 45 other states.

Anderson is championing a bill he attempted to push last year during the 80th Texas Legislature with no success.

Anderson’s legislation would classify salvia as a Controlled Substance in Penalty Group 2 of the Texas Controlled Substances Act, meaning mere possession of less than one gram of the substance would be a state jail felony. Marijuana,  a substance that has been illegal for decades, is regulated within the confines of the Texas Penal Code, and possession of marijuana starts out as a misdemeanor offense.

Last session, when the salvia bills first came out, Scott Henson at criminal justice blog Grits for Breakfast pointed readers to an interesting Houston Press article written by staffers who used substance in 2003 and wrote about their experiences. Judging by that article, as well as some of the comments left at Grits, one might wonder exactly what all the fuss is about a drug that, by many accounts, makes one hallicunate for a few minutes followed by a headache.

There are three particularly interesting things about Anderson’s push to legalize salvia.

First and foremost, it appears that, for the most part, the only vocal supporters his legislation had during the last legislative session were members of the church—Silver Maple in Robinson—whose pastor gave Anderson the idea for the law because his daughter allegedly came home high one night.

Second, a lot of the scandal over salvia seems a bit media-driven (the Dallas Morning News isn’t helping much with its continued coverage of Anderson’s crusade).

Third, Anderson’s legislation seems a bit harsh–especially since Congress has previously declined to regulate salvia and given the fact that it can be purchased over the counter in Texas today. Anderson’s legislation would make possession of less than a gram of salvia a second-degree felony. By contrast, legislation proposed by State Rep. Craig Estes (R-Wichita Falls) would have simply prohibited possession or use of salvia by persons under 18.

One must wonder whether not Anderson–and, indeed, the House Criminal Jurisprudence Committee if they recommend legislation at all similar to his–has learned anything about the drug war in Texas.

By way of explanation, consider the following:

Texas was one of the first states in America to regulate marijuana, with some sources claiming that a 1905 ordinance in El Paso was actually the first marijuana law in the nation. A speech by a USC law professor reproduced numerous times on the internet actually discusses what may have prompted Texas marijuana laws (warning: the professor doesn’t cite, in any version we can find, either a Senate Journal reference or another source for the quote mentioned below, but we have emailed him and inquired):

You didn’t have to go anywhere but to the legislative records to find out what had motivated those marijuana laws. The only thing you need to know to understand the early marijuana laws in the southwest and Rocky Mountain areas of this country is to know, that in the period just after 1914, into all of those areas was a substantial migration of Mexicans. They had come across the border in search of better economic conditions, they worked heavily as rural laborers, beet field workers, cotton pickers, things of that sort. And with them, they had brought marijuana.

Basically, none of the white people in these states knew anything about marijuana, and I make a distinction between white people and Mexicans to reflect a distinction that any legislator in one of these states at the time would have made. And all you had to do to find out what motivated the marijuana laws in the Rocky mountain and southwestern states was to go to the legislative records themselves. Probably the best single statement was the statement of a proponent of Texas first marijuana law. He said on the floor of the Texas Senate, and I quote, “All Mexicans are crazy, and this stuff (referring to marijuana) is what makes them crazy.”

So, if “crazy Mexicans” were the reason for the state’s first marijuana laws, it could well be that “crazy evangelicals,” will be the reason for the state’s first salvia laws.

And, as in the case with the state’s original marijuana laws, Anderson proposes something that is more of a strict criminalization than an actual attempt to address the problem. In this case, the problem appears minors getting access to the substance (keep in mind that, although salvia is legal, under Texas’ existing drunk and drugged driving laws, if someone drove impaired as a result of using salvia, they could be prosecuted for that conduct even thought he substance itself is illegal), as there are no reports of people being addicted to it, it causing an increased crime rate, or anyone every dying from using salvia.

Texas, in fact, took until 1972 to begin softening marijuana laws–and was still tweaking the laws through 2007. Here is what the Senate Interim Drug Study Committee of the 62nd Legislature wrote on the topic in 1971 (the committee included none other than then-Sen. Barbara Jordan (D-Houston):

As late as 1971, a bill proposing to make marijuana possession a misdemeanor was defeated in the Texas House of Representatives; yet two years later, as this report is being prepared, we find negligible sentiment for retaining our present felony law. Perhaps this is because the Texas marijuana law is the harshest in the country–and indeed the harshest in the world outside Red China.

The Senate Committee also had some other words of wisdom Anderson might do well to heed:

…so long as we continue to treat it as a serious criminal offense we are diverting the time and energies of our police, prosecutors, and courts from the really serious business of combating crimes against persons and property…A study….estimated that state and local government agencies in Texas are spending $8,975,000 per year to apprehend, process, and incarcerate persons charged with possession of marijuana. It is simply foolish to continue tohis expensive and unproductive policy. Our criminal justice system has far more important business.

That same report recommended that possession of anything under three ounces of marijuana actually be associated with no criminal penalty and, in essence not be illegal. Thus, marijuana laws evolved from strict felony laws to the laws we have now. Yet, with what is evidently a similar substance, Anderson wants to relive the mistakes of Texas’ marijuana laws.

We’re no advocates for the legalization of drugs, and, in fact, think outlawing possession of salvia by people under 18 seems like sound public policy. But, what Anderson propose, quite simply, seems idiotic.

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Technorati Tags 80th Texas Legislature, Barbara Jordan, Charles "Doc" Anderson, Congress, Craig Estes, Dallas Morning News, House Committee on Criminal Jurisprudence, marijuana law, Texas House of Representatives, Texas Senate

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