Decriminalization of marijuana possession won’t necessarily affect those already caught up in the system

Christopher Jones could face jail time for a probation violation for testing positive for marijuana in his system. Possessing an ounce or less of marijuana will no longer result in criminal charges in Virginia starting July 1. (Photo by Randi B. Hagi)

By Randi B. Hagi, assistant editor

Simple possession of an ounce or less of marijuana is set to be decriminalized in Virginia on July 1. But that won’t prevent Harrisonburg resident Christopher Jones, a cook at O’Neill’s Grill, from being sent to jail later that month if it’s what the prosecutor seeks. 

Statewide decriminalization does not change the fact that it is against the terms of misdemeanor and felony probation in Harrisonburg and Rockingham County to smoke marijuana, much like people on supervised probation aren’t allowed to drink alcohol.

In May 2017, Jones broke a protective order by getting into an altercation over the phone. He was arrested where he worked at the time, as a manager at the Jack Brown’s in Elkton. Jones took a plea deal, and served one month in jail with an 11-month suspended sentence hanging over his head during two years of supervised misdemeanor probation.

After he got out of jail, Jones went to see his probation officer because he had report in person monthly.

“I go to see her, she doesn’t give me a urine screen. I go back a month later, again, she says there’s no one here to give you a urine screen,” Jones said. “So I go back the third time. There’s a guy there, he gives me the urine screen. And it’s clean. Now mind you I could have had three clean urines. She didn’t test me the first time, she didn’t test me the second time because there was nobody to do it.”

But after the third visit, Jones smoked, and it showed up on the urine screen at his fourth visit. His probation officer wrote him up for violating the terms of his probation. He ended up spending another 30 days in jail, and the terms of his probation were adjusted so that, if he tested positive for marijuana again, it would count as a formal violation. He tested positive in March  – meaning he’ll have to appear before a judge again, who could send him to jail to serve that suspended sentence.

Probation officers have “a lot of discretion in when a person gets brought back to court,” said Aaron Cook, a local defense attorney who didn’t work on Jones’s case. While they generally keep records of every infraction, they might not formally “violate” them until several small violations add up, Cook said.

The Rockingham-Harrisonburg Court Services Unit supervises most people convicted of a misdemeanor and the occasional nonviolent felony. Director Ann Marie Freeman was not able to compile statistics before press time on how many probationers have been written up in the last year for marijuana-related violations.

Update, June 2, 2020: from May 1, 2019 to May 1, 2020, Court Services recorded:

  • Two probation violations for one marijuana test. Both of these probationers were enrolled in the First Offender program, Freeman wrote to The Citizen in an email.
  • Three violations for multiple positive marijuana tests, and
  • Twenty-five violations for multiple positive tests including marijuana plus one or more other drugs, “in addition to various other violations to include new charges and absconding.”

Marsha Garst, the commonwealth’s attorney, told The Citizen in an email that, while they “do not have exacts,” she believes there haven’t been any felony probation violations for marijuana alone in the past year, and her office does not keep numbers on probation violations that include marijuana and other offenses. Garst referred further questions to the local Probation and Parole office, which supervises most felony probationers in the Harrisonburg area.

Joshua Lutz, chief probation and parole officer, directed The Citizen to contact the Virginia Department of Corrections’ director of communications, who did not respond to multiple interview requests.

Anecdotal consensus among the four defense attorneys who spoke with The Citizen was that it usually takes someone testing positive for marijuana multiple times, or testing positive in addition to other infractions, for a probation officer to write them up for a violation.

“I would say we don’t see violations based solely on marijuana usage that often. There are usually other factors,” said Armanda Clymer, an attorney with the Law Office of Louis K. Nagy.

Twice now Jones said he’s been done in by a positive urine screen.

He was assigned a court date for April, which was postponed to July because of the pandemic. And based on his experience, “I’m possibly going to jail in July,” Jones said. Part of the reason, he said, is because he’s relying on a court-appointed lawyer to represent him. If he could afford to pay for a lawyer, Jones said he might be able to avoid jail time for this violation.

Who benefits from decriminalization?

Cook has seen this pattern with probation before. 

“Many people say here in Virginia, there are very few people who go to jail for possessing marijuana. And at one level that’s true,” Cook said, “very few people get jail time for possessing a small amount of marijuana. But the real place that people go to jail for possessing marijuana is where they’re on probation.”

He said judges in Harrisonburg have made it clear that probation stipulations won’t change with decriminalization. 

“Since this push has gone to making marijuana legal, our judges have specifically been saying, when sentencing somebody to a term of probation, they will say ‘conditions of your probation is that you possess no illegal drugs or marijuana,’ making it clear that marijuana is still verboten for probationers, and if they’re found with marijuana they could violate the probation,” Cook said.

Many of the simple possession charges in Harrisonburg, multiple attorneys agreed, come out of the JMU population. Those will no longer have to go to court or result in a criminal record starting July 1.

Decriminalization will be especially beneficial for anyone caught with between one-half and one ounce.

“It used to be anything greater than one-half ounce up to five pounds was a felony for possession with intent to distribute,” said Aaron Burgin, an attorney with Big Valley Law who formerly worked as a prosecutor in Harrisonburg and Danville. Burgin said he’s defended clients who were charged with a felony for possession of an ounce and successfully argued the charge down to a class one misdemeanor on the basis that one ounce is “consistent with personal use,” rather than the intent to distribute.

Harrisonburg Police Chief Eric English said he is sympathetic to both supporters and opponents of decriminalization. 

“I definitely understand where individuals and the government are coming from, as far as the disproportionate arrests [of black and Latino people] associated with marijuana use, so I do understand that part of it,” he said.

As of May 11, there have been 112 arrests in Harrisonburg for simple possession of marijuana in 2020.

 English said under the current reporting system, racial demographics are misleading – Latino or Hispanic people are included in the white category. In total, 72% of the 112 people arrested were recorded as white, 24% black, 2% unknown, and less than 1% (one case) Asian Pacific Islander.

Still, those numbers are out-of-step with Harrisonburg’s demographics. According to the 2010 census, Harrisonburg’s population is 65.1% white, 20.6% Hispanic or Latino, 8.9% black or African American, 4.5% Asian, and 1% American Indian, Alaska Native, Native Hawaiian, and Pacific Islander.

English said the department doesn’t keep track of how many DUI or DWI charges stem from marijuana versus other substances.

Starting July 1, possession of an ounce or less of marijuana will no longer result in criminal charges.

What won’t change

The law decriminalizing marijuana possession won’t change that it’s still illegal to smoke marijuana and drive a car. And if an officer smells marijuana during a traffic stop, it’s still a reason for them to search the vehicle. 

“In the research we’ve done thus far, that does not change at all. You smell marijuana in the car, and even though it might only be a citation, it’s still probable cause to search that vehicle,” English said. 

If the officer searches the car and finds an ounce or less, then they would just write that person a citation, like a traffic summons, which comes with a $25 fine attached.

English said traffic stops are usually when his officers encounter marijuana. And he’s already concerned with how many people smoke and drive. 

“We have enough DUI arrests that we make within the city, and one of the things we don’t need is individuals smoking marijuana and getting behind the wheel, because that could create more issues for us. We want to make sure all our citizens are safe on our roadways,” English said.

Marijuana in the community’s eyes

Attorney Eugene Oliver sees decriminalization as a good thing.

“It is bringing the system more reflective with the attitudes that we’ve seen in the community,” Oliver said. “As of now, you would have people getting criminal records for engaging in behavior that is otherwise somewhat deemed socially acceptable.”

He thinks it’s just a matter of time until marijuana is legalized in Virginia. Public sentiment nationwide has shifted in the last two decades: according to the Pew Research Center, two-thirds of Americans were in favor of marijuana legalization as of last September – a reversal from 2000, in which 63 percent were against it.

Christopher Jones said he smokes marijuana as a way to manage stress and pain. He’s survived being shot and stabbed multiple times. In June 2017, he was shot in the leg and shoulder in front of the Harrisonburg courthouse. The friend he was with that night was killed. 

In addition to the physical and psychological trauma of that night, the trial for his friend’s murder is an ongoing stressor. Jones has also lost his mother, sister, and cousin in the last few years. Marijuana, which a doctor can prescribe in 33 states for various medical conditions including posttraumatic stress disorder, helps him cope.

“I’d rather smoke marijuana than take a pill,” he said. “I’m dealing with mental things with being shot. I got shot when I was 26 in front of my Mom, you know what I’m saying? In my front yard. And PTSD. But, to me, I’m not dealing with psychotropic drugs, you know, I don’t need that … some of us don’t take pills. Marijuana is medicine.”

The protective order Jones broke, which started this probation saga, has since been dropped – but that doesn’t change the fact that he could serve that 11 months’ suspended sentence. His primary concern if he’s sent to jail this summer is how he’ll provide for his children. He’s started saving his unemployment checks while he’s been laid off because of the pandemic.

“I have two little children. I have to pay $500 a month. My baby mother’s not working right now. If I go to jail, you know what I’m saying, she’s struggling,” Jones said.

For him and others entangled in the criminal justice system for marijuana, Jones said he hopes that further reforms are coming.

Otherwise, “they’re just going to keep dumping people in jail and taking your life away from you for nothing,” Jones said. “And a lot of us don’t even have a drug charge … I have to worry about peeing in a cup when I don’t even have a drug charge.” 

And for Jones, it has put up one more hurdle — another barrier — to allowing him to move forward and provide for his family. 

“Honestly, where I’m at now in life, because of all the turmoil and stupid shit I have to go through, I’m basically just alive because I have kids … just being able to see my two kids smile every day,” he said. “Because they love me so much, it’s ridiculous, man. You can’t change that. You can’t take pure love from somebody.”

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