Marijuana laws — both possession and distribution amounts — need to be overhauled, according to Omaha Sen. Justin Wayne.
Arbitrary amounts of the drug included in marijuana laws have helped create overpopulation of Nebraska prisons and county jails, Wayne told the Legislature's Judiciary Committee on Wednesday.
Adjustments he is proposing would modernize the state's marijuana laws, he said, to match what's going on across the country and the injustices of people in Nebraska being charged with drug trafficking when that is not the case.
Wayne brought two bills to the committee, one (LB89) that would adjust penalties for possession of marijuana, and another (LB652) that would make it a Class I misdemeanor to possess a residual or very small amount of a controlled substance, punishable by not more than one year in prison, a $1,000 fine or both.
"Right now there's no basic distinction and no protection from prosecutors for someone simply caught with a pipe that has residue, versus someone caught with actual measurable amounts (of a drug)," Wayne told the committee.
A person can't get high on residue, he said. There's only enough for a dog to sniff or in some instances to be tested. Even so, it's a Class IV felony, punishable by a maximum two years in prison and 12 months post-release supervision, a $10,000 fine, or both.
Wayne's bill (LB652) defines residue of drugs customarily sold by weight as 0.1 gram or less. For drugs not customarily sold by weight, residue is described as an amount less than one dosage.
LB89 reduces the penalties for possession of marijuana with intent to deliver.
"We have arbitrary numbers in the marijuana statutes that presume a person is a distributor," Wayne said. "Our law needs to be nuanced because if not ... we are prosecuting people who simply may have a habit, although illegal, but are not considered drug manufacturers or distributors."
With the bill, if a person is caught with 5 pounds or less, the crime is lowered to a Class IV felony. A person caught with more than 5 pounds would continue to be charged with a Class IIA felony, punishable by a maximum 20 years in prison.
For simple possession, the bill would make more than 1 pound up to 5 pounds a Class I misdemeanor. A Class III misdemeanor would be charged for 3 ounces to a pound, punishable by a maximum of three months in prison.
ACLU of Nebraska Attorney Spike Eickholt supported the bills, saying he's seen cases in which people had less than an ounce of marijuana, and could have gotten the same penalty as someone caught on Interstate 80 with 500 pounds.
"Prosecutors do charge, and in my opinion overcharge, those kinds of cases," he said.
Shifting to LB652, he said, people are convicted and go to prison with a maximum sentence for possession of a pipe with a residue amount of methamphetamine.
Residual amounts of a hard drug sometimes can hardly be seen with the naked eye, let alone be measured or consumed, he said.
Lancaster County Public Defender Joe Nigro said during testimony on LB89 the war on drugs hasn't worked any better than prohibition.
"Legalization of marijuana across the country is inevitable," he said. "Use of marijuana runs across racial and socioeconomic lines, yet African-Americans are four times as likely to be arrested and charged for marijuana offenses."
When a conviction has more devastating impact than the use of the drug, it's time to re-evaluate the policy, Nigro said.
On the residue law, he said, the crime rate in Lancaster County has been going down since 1992, but felony filings have significantly increased in the past four years, driven by possessions of small amounts of controlled substances, especially residue cases.
These cases burden the system and clog county and district courts, he said. Half of the cases in his office are drug cases, 70 percent of drug cases are possession cases, and 39 percent of those are residue cases.
"It would be one thing if all of this was reducing drug use and making our communities safer. It isn't," he said.
This bill, he said, would be a huge savings for the county.
Jeff Lux, deputy Douglas County attorney, in opposing the drug residue changes, said his county is seeing an influx of heroin and fentanyl use, with some of the biggest U.S. seizures of fentanyl here is Nebraska.
With those drugs, the amounts are small, a 0.1 gram amount of heroin is a user amount, he said. The same with fentanyl.
Corey O'Brien of the Nebraska Attorney General's office opposed LB89. There are situations, he said, in which people who distribute less than a pound of marijuana would be treated the same as someone simply possessing an ounce and a half.
The bill sends the wrong message to youth who are increasing their use of marijuana, he said, at a time when the available drug contains THC concentrations that produce effects that rival powerful hallucinogens such as ecstasy and LSD.
THC-potent marijuana is thriving, he said, and spawning robberies, violent assaults, home invasions and murders directly tied to the marijuana trade and cartels.
When asked if the law should include THC amounts, O'Brien said the ability to test THC potency doesn't exist at this time.