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Leon County
Board of County Commissioners Agenda Item#21 March 21, 2023 |
| To: | Honorable Chairman and Members of the Board |
| From: | Chasity H. O'Steen, County Attorney |
| Title: | Alternatives to Incarceration for the Possession of Small Amounts of Marijuana |
| Review and Approval: | Vincent S. Long, County Administrator |
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Department/Division Review and Approval: |
Alan Rosenzweig, Deputy County Administrator Wanda Hunter, Assistant County Administrator |
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Lead Staff/ Project Team: |
Chasity H. O'Steen, County Attorney |
As requested by the Board at its February 21, 2023 regular meeting, this item provides an analysis of the alternatives to incarceration for the possession of small amounts of marijuana, including the current alternatives utilized in Leon County.
This item has no fiscal impact.
Option # 1: Accept the report on alternatives to incarceration for the possession of small amounts of marijuana and take no further action.
Report and Discussion
At its February 21, 2023 regular meeting, the Board requested this item, which provides an analysis of the alternatives to incarceration for the possession of small amounts of marijuana, including the current alternatives utilized in Leon County. This item also provides an overview of federal and Florida laws regulating the possession and use of marijuana for medicinal and recreational purposes.
Generally, marijuana is only one of 80 varieties of cannabinoid-based plants. Tetrahydrocannabinol (THC) is the compound in the plant believed to produce the most benefit and cause the most safety concerns. Hemp is another popular cannabinoid-based plant that reportedly offers medicinal and commercial benefits. The 2018 Farm Bill legalized the production and sale of hemp and hemp extracts. Hemp is the same species of plant as cannabis. It is grown for the industrial uses of its derived product and can be refined into a variety of commercial items. Hemp is classified by the federal government as cannabis containing no more than 0.3% THC by dry weight.
Federal Law & Preemption
Any possession or use of marijuana, even if legal under a state law, remains illegal under federal law and is punishable under the federal Controlled Substance Act (CSA). Marijuana is a Schedule I substance under the CSA, meaning that it has been classified as having a high potential for abuse, has no currently accepted medical use, and lacks safety for use under medical supervision. Although some states, including Florida, have allowed the use of marijuana for medicinal purposes, the U.S. Food and Drug Administration is authorized to approve drugs for medicinal use and has concluded that marijuana has no federally approved use for medical treatment. Regardless of state laws, Article VI of the United States Constitution provides that federal law pre-empts state law, even when those laws conflict.
Florida Law
The CSA notwithstanding, in 2014 the Florida Legislature passed SB 1030, the Compassionate Medical Cannabis Act (CMCA), which authorized patients suffering from cancer, seizure disorders, or severe and persistent muscle spasms to possess and use cannabis products rich in cannabidiol (CBD) and low in THC. CBD is a derivative of cannabis-based plants and is believed to have medicinal value in treating pain, seizures, and lowering anxiety. THC, also a derivative of cannabis plants, is the main psychoactive compound in marijuana. It is the property in marijuana that makes people feel “high” when ingested or inhaled. Higher levels of CBD and THC in cannabis-based plants make the plants more potent, with commensurate greater psychoactive effects on the human brain. SB 1030 created a state licensing structure for dispensing organizations to produce marijuana for medical purposes with at least 10% CBD and no more than 0.8% THC. Since the passage of the CMCA, several amendments have been made to expand the use of marijuana for medical purposes, increase the number of dispensing organizations, and allow organizations to produce products outside the original 0.8% THC cap.
Except as authorized for medical use under the CMCA, marijuana remains an illegal substance under Florida law. Like the federal CSA, Florida’s Comprehensive Drug Abuse Prevention and Control Act establishes five schedules for controlled substances. Marijuana is included in Schedule I under Florida law. For purposes of this report, by law 20 grams or less is considered “a small amount” of marijuana. Possession of 20 grams or less of marijuana is a misdemeanor offense and is punishable by up to one year in jail and a maximum fine of $1,000. Possession or sale of more than 20 grams of marijuana is a felony offense with escalating penalties according to the quantity possessed or sold.
In an effort to offer communities an alternative to arrest and incarceration, in 2018 the Florida Legislature authorized the creation of adult prearrest diversion programs. Section 901.41, Florida Statutes (F.S.), was adopted to authorize and encourage local communities and public or private educational institutions to implement adult prearrest diversion programs for certain misdemeanor nonviolent offenses, including possession of 20 grams or less of marijuana. The legislation did not mandate that a particular prearrest diversion program for adults be adopted but found that the model program to be discussed later in the analysis allowed certain adults the opportunity to avoid an arrest record while ensuring that they receive appropriate services and fulfill their community service obligations for violating the law.
The Florida Legislature has also found that the creation and implementation of juvenile civil citation or similar prearrest diversion programs at the judicial circuit level promotes public safety, aids interagency cooperation, and provides the greatest chance of success for civil citation and similar prearrest diversion programs. See Section 985.12(1), F.S. Pursuant to the statute, a civil citation or similar prearrest diversion program for misdemeanor offenses is required in each judicial circuit in the state. The state attorney, public defender, clerk of court, and representatives of participating law enforcement agencies in each circuit create a civil citation or similar prearrest diversion program and develop its policies and procedures. Section 985.12(2)(b), F.S., also imposes certain requirements for such programs as discussed later in the analysis.
Prosecutorial Discretion
Although Florida law is clear regarding the maximum penalty allowable for marijuana-related offenses, a law enforcement officer has the discretion to determine how the offense will be addressed during an investigation and prearrest. Depending on the offense and the circumstances of the encounter with an offender, law enforcement may choose to conduct an on view arrest, issue a notice to appear, recommend diversion, prepare a probable cause affidavit for potential judicial review, or create a regular police report.
As previously stated, the Florida Legislature approved the use of marijuana that contains no more than 0.8% THC for medical purposes. At the time the law was implemented, Florida lacked sufficient laboratories with tools necessary to test the level of THC present in a cannabinoid-based substance and, in the absence of a confession, law enforcement could not differentiate between hemp and marijuana. In light of these circumstances, in July 2019, the State Attorney issued a memorandum to law enforcement agencies within the 2nd Judicial Circuit, informing them that his office would suspend prosecuting possession of marijuana cases. Since that time, however, the Florida Department of Law Enforcement has acquired the necessary authorization and tools to test cannabis-based plants for the THC level, and the State Attorney has resumed his duty of prosecuting those arrested for marijuana possession. Additionally, post-arrest, the State Attorney for each jurisdiction determines which charges are filed and prosecuted. The State Attorney has sole discretion to defer and resolve such offenses through means other than incarceration and determine which charges are dismissed.
Local-Level Regulations and Actions
Several communities in Florida have adopted local ordinances imposing civil fines as the penalty for possession of a small amount of marijuana. However, because possession of marijuana remains a crime under state and federal law, such ordinances could be ruled invalid if they were challenged. Further, law enforcement and the State Attorney in such jurisdictions still retain prosecutorial discretion to enforce criminal penalties for possession of small quantities of marijuana consistent with federal and Florida law.
The analysis section of this item will further examine state legislation adopted in 2018 that authorized the creation of adult and juvenile prearrest diversion programs, review the various alternatives to incarceration currently utilized to address the offense of possession of 20 grams or less of marijuana in Leon County, and provide data regarding the number of misdemeanor marijuana cases and diversions completed since 2018 in Leon County.
Alternatives to incarceration are intended to reduce criminal prosecution, limit the use of incarceration as a punishment, or decrease the time of incarceration for individuals who have committed offenses, particularly low-level offenses. This item analyzes the various existing prearrest and post-arrest alternatives to incarceration.
As discussed further in the analysis, it is important to note that a review of the jail population at the time of this report found no persons detained in the Leon County Detention Facility with only a misdemeanor possession of marijuana charge. The State Attorney states that “it has been years since anyone was incarcerated for a simple possession of marijuana charge”, and all eligible first-time offenders arrested for possession of 20 grams or less of marijuana are addressed through the Diversion Program discussed later in this item.
Statutorily Authorized Alternatives to Mitigate Entry into the Criminal Justice System – Prearrest
Prearrest diversion programs, sometimes referred to as civil citation programs, target first time offenders of nonviolent crimes by essentially removing incarceration as a punishment. Prearrest programs allow participants to avoid a criminal record since no arrest occurs. Upon contact with law enforcement, first time offenders must admit their crime and agree to participate in the prearrest diversion program. The offender may be issued a notice to report to the program location and required to pay a fee. In most communities, participants can perform community service hours if they are unable to pay the fee. Participants are then diverted to rehabilitative measures such as community service and/or counseling or treatment, if necessary. After successful completion of the program, any public record of the offense is disposed.
As previously noted in the background, Section 901.41, F.S., was created in 2018 to encourage jurisdictions to implement adult prearrest diversion programs as an additional tool for law enforcement to minimize arrests and incarceration. The statute describes a “Model Prearrest Diversion Program” as follows:
The statute further offers guidance regarding the program structure:
An adult who receives a civil citation or similar prearrest diversion program notice shall report for intake as required by the local prearrest diversion program and must be provided appropriate assessment, intervention, education, and behavioral health care services by the program. While in the local prearrest diversion program, the adult shall perform community service hours as specified by the program. The adult shall pay restitution due to the victim as a program requirement. If the adult does not successfully complete the prearrest diversion program, the law enforcement officer must determine if there is good cause to arrest the adult for the original misdemeanor offense and, if so, refer the case to the state attorney to determine whether prosecution is appropriate or, in the absence of a finding of good cause, allow the adult to continue in the program.
Juvenile civil citation or similar prearrest diversion programs are a popular tool among Florida’s school resource officers and other law enforcement agencies to address youth involved in low level criminal offenses. For juveniles, Section 985.12, F.S., specifies that each judicial circuit’s civil citation or similar prearrest division program must identify:
The statute further provides that, if a juvenile does not successfully complete the civil citation or similar prearrest diversion program, the arresting law enforcement officer shall determine if there is good cause to arrest the juvenile for the original misdemeanor offense and refer the case to the state attorney to determine if prosecution is appropriate or allow the juvenile to continue in the program.
State Attorney-Administered Diversion Program Available in Leon County
Prior to 2018, Leon County and various criminal justice stakeholders including the State Attorney, Public Defender, the Smart Justice Alliance (a local justice reform advocacy group), the Leon County Sheriff (LCSO), the Tallahassee Police Department (TPD), and Court Administration supported an Adult Civil Citation (ACC) Program from 2013 to 2017. The ACC Program was administered through a community-based substance abuse service provider, Disc Village, Inc. Criteria for participation required a referral from the arresting law enforcement officer. If the law enforcement officer determined the person was an eligible candidate, participants could avoid the full effects of criminal prosecution by paying a fee, attending substance abuse counseling, and submitting to periodic drug testing. After successful completion of the ACC Program, the participant’s record was disposed. If the participant failed to complete the ACC Program, the incident was referred to the State Attorney for prosecution. In late 2017, the State Attorney requested a meeting with all stakeholders in the process and expressed several concerns about the ACC Program including the following:
Considering the concerns noted by the State Attorney, in late 2017 the ACC Program was replaced with a new program relaunched under the administration of the State Attorney (Diversion Program). The State Attorney executed a Memorandum of Understanding (MOU) with 21 law enforcement agencies throughout the Second Judicial Circuit, including TPD, LCSO, as well as educational institutions (Tallahassee Community College (TCC), Florida A&M University (FAMU), and Florida State University (FSU)), to implement the Diversion Program (Attachment #2) as an additional law enforcement tool. The State Attorney operates the Division Program at no cost to the County.
Notably, the MOU expressly states, that “[t]he intent of this program [is] to give prosecutors and law enforcement additional options when interdicting criminal behavior, but in no way does this program supplant or otherwise limit the traditional criminal justice options held by all sworn law enforcement, the State Attorney, or the Courts.”
Law enforcement may refer first time offenders to the Diversion Program for a variety of misdemeanor nonviolent offenses, including possession of 20 grams or less of marijuana. An officer may indicate in the probable cause affidavit or sworn report that the offender should be granted diversion rather than criminal arrest. The offender is provided with an information sheet from the officer and told to appear at the State Attorney’s Office within four weeks of the offense. If the prosecutor determines that diversion is appropriate, the case is referred to the State Attorney’s Diversion Coordinator. Each offender is provided written notice of the Diversion Program requirements which include financial requirements and costs, and additional sanctions, if applicable. The offender is also notified of the offender’s legal rights and provided the option to have the case transferred for traditional prosecution. Upon successful completion of the Diversion Program, the State Attorney will essentially “drop the charges.” The legal terminology for this action is reflected in the public record as “no information filed” if an arrest or notice to appear was filed. The referring or arresting law enforcement agency is also notified of the resolution of the case whether an arrest was made or not. After completion of the Diversion Program, the program participant is also provided forms that may be used by the participant to seal or expunge criminal records, if any, related to the underlying offense.
The State Attorney has indicated that although the Diversion Program is available, law enforcement officers submit very few referrals to the Diversion Program. To illustrate this point, law enforcement in Leon County referred only 57 total cases (not limited to misdemeanor marijuana) to the State Attorney in 2022 for prearrest diversion. Of those 57 referrals, 29 individuals completed diversion, 17 cases are still pending completion, and 11 individuals failed to complete diversion and were referred to court.
Overall, in the year prior to the drafting of this report, LCSO referred 33 cases to diversion (not limited to marijuana) and issued 130 notices to appear (not limited to marijuana). During the same timeframe, the LCSO issued 127 civil citations (not limited to marijuana).
For comparison purposes, in the post-arrest process the State Attorney’s Office resolved 726 misdemeanor cases (not limited to marijuana) by diversion in 2022.
In discussing the lack of use of the Diversion Program with law enforcement representatives from the TPD and LCSO, both indicated they are aware of the Diversion Program. As a matter of protocol, to ensure consistency among all, TPD defers to its General Orders on Arrests and Alternative to Arrest for guidance when encountering an adult accused of committing an offense (Attachment #2). TPD also utilizes protocols in its General Orders on Juvenile Civil Citation Program, which requires an arresting officer to offer a juvenile in custody up to 50 hours of community service in lieu of being charged with a criminal offense if all criteria in the General Order are met.
Likewise, the LCSO adheres to its General Order for Arrest Procedures when encountering someone accused of committing an offense (Attachment #3). This General Order outlines various alternatives to arrest that may be utilized.
The educational institutions (TCC, FAMU, and FSU) also entered a Memorandum of Understanding with the State Attorney for the Diversion Program. However, each institution maintains its own internal Student Code of Conduct policies and procedures relating to marijuana possession and other offenses that may occur on campus. When County staff communicated with these entities in 2022, each entity was aware of the Diversion Program, but generally deferred to their internal policies in student matters that occur on campus.
Statistics regarding the number of misdemeanor marijuana cases in Leon County, by year, and the subset number of those involved in those cases who completed diversion, are provided below:
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Number of misdemeanor marijuana cases |
Number of diversions completed |
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2018 |
741 |
408 |
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2019 |
367 |
172 |
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2020 |
82 |
47 |
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2021 |
80 |
35 |
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2022 |
90 |
48 |
Department of Juvenile Justice (DJJ) Prearrest Diversion Program Available in the Second Judicial Circuit
A juvenile prearrest diversion program has operated in Leon County for more than a decade. The Juvenile Civil Citation Program is administered by the DJJ (Juvenile Program). The Juvenile Program offers youth charged with a first-time offense, such as theft (under $300), disorderly conduct, or possession of a small amount of marijuana (less than 20 grams), an alternative to arrest that does not leave the juvenile’s record accessible by the public. To participate in the Juvenile Program, the youth and parent or guardian must sign the civil citation agreement, the youth must perform a designated number of community service hours and, depending on the offense, the youth must complete other requirements such as payment of restitution, counseling, or drug treatment. Upon successful completion, any record of the youth’s participation in the Juvenile Program is sealed and can only be accessed through a court order.
In response to staff’s inquiry, the DJJ Chief Juvenile Probation Officer for the Second Judicial Circuit, who has oversight for the Juvenile Program, shared that law enforcement officers in the County are utilizing the Juvenile Program.
Efforts to Decriminalize Possession of Small Amounts of Marijuana
Although a myriad of pre and post-arrest alternatives are in place to provide alternatives to incarceration for those who commit non-violent misdemeanor offenses, including possession of marijuana, several cities and counties have taken measures to advance marijuana reform by enacting ordinances that give law enforcement officers the discretion to impose civil penalties for most misdemeanor marijuana offenses. However, the use and possession of marijuana remains a violation of Florida and federal law, with exceptions for medical use as outlined above.
Jurisdictions that have enacted ordinances reducing possession of small amounts of marijuana to a civil penalty argue that the criminal penalty for such an offense is often disproportionate to the severity of the offense and believe that a civil penalty is more commensurate with any social harm caused by possessing small amounts of marijuana. Moreover, they contend that a civil penalty reserves costly criminal justice resources to address the most critical public safety issues in the community.
The Board considered drafting an ordinance to provide a civil penalty for misdemeanor marijuana possession offenses at its October 15, 2019 meeting but voted at that time to take no action.
At its October 12, 2021 regular meeting, the Board requested a workshop item providing for an overview of alternatives to incarceration for the possession of small amounts of marijuana, including alternatives utilized in Leon County. A Board workshop was subsequently held on March 22, 2022, and the Board accepted the report and took no further action. These actions were ratified at the April 12, 2022 regular meeting, and the Board also adopted a Resolution encouraging local law enforcement officers’ use of the State Attorney’s existing Pre-Arrest Diversion Program for first-time offenders charged with possession of 20 grams or less of marijuana (Attachment #4).
Should the Board choose to again consider an ordinance granting law enforcement the discretion to impose fines for possession of small amounts of marijuana, staff will provide a follow-up agenda item for consideration of the ordinance’s structure and outline the process and costs that may be associated with implementation of the ordinance.
If the Board adopts such an ordinance, the County has no operational authority over law enforcement agencies and cannot require them to enforce the ordinance, but merely offer the ordinance as an additional prearrest tool to use at their discretion. In jurisdictions that have adopted ordinances providing for civil penalties in lieu of a criminal charge, the State Attorney retains the authority to prosecute persons charged with marijuana possession.
As previously noted, some local governments in Florida have adopted ordinances providing for civil penalties for possession of small amounts of marijuana. However, marijuana possession remains a criminal offense under federal and Florida law and as such offenders are subject to criminal prosecution. If challenged, an ordinance adopted by a local government to decriminalize misdemeanor marijuana possession by reducing the offense to a civil penalty could be ruled invalid.
It is also worth noting that the use of marijuana is prohibited under the County’s Drug and Alcohol Free Workplace Policy, which was amended in June 2021 to clearly state that even employee use of medical marijuana continues to be prohibited.
Conclusion
The State Attorney offers a prearrest diversion program to be used at the discretion of law enforcement as an alternative to incarceration for persons who commit minor non-violent misdemeanor offenses, including possession of small amounts of marijuana. In addition, a juvenile Civil Citation Program is in place for youth charged with a first-time offense of marijuana possession or other minor offenses. A variety of tools are available to law enforcement as alternatives to arrest, including issuing a warning, a pre-arrest diversion referral, or a Notice to Appear.
A review of the jail population at the time of this report found no persons detained in the Leon County Detention Facility with only a misdemeanor possession of marijuana charge, and the State Attorney contends that “it has been years since anyone has been incarcerated for a simple possession of marijuana charge.” The State Attorney states that all eligible first-time offenders arrested for possession of 20 grams or less of marijuana are addressed through a diversion program. Further, the State Attorney maintains sole discretion to dismiss, divert, or prosecute any criminal violation.
The Board may choose to adopt an ordinance that reduces possession of small quantities of marijuana from a criminal offense to a civil penalty. However, any possession or use of marijuana is a crime under Florida and federal law and, as such, violators are subject to criminal prosecution and would continue to be subject to criminal prosecution notwithstanding any such ordinance. If the Board adopts such an ordinance, law enforcement and the State Attorney will still have discretion to use a diversion program or charge and prosecute individuals who possess 20 grams or less of marijuana with a misdemeanor.
Option #1