COLUMN: New Law Leaves Georgians Dazed and Confused

The following article is an opinion piece and reflects the views of only the author and not those of AllOnGeorgia.

Marc Hyden is the Director of State Government Affairs for the R Street Institute, and he is a longtime Georgia resident. You can follow him on Twitter at @marc_hyden.

“Exact science … is not an exact science. The machine simply does not operate as expected,” David Bowie said as Nikola Tesla in the movie The Prestige. While this quote referenced one of Tesla’s experiments, it has a much deeper meaning: Despite humans’ expertise and intentions, projects rarely go as planned. The same can be said about writing and executing the law, but for policy wonks like yours truly, it’s fascinating to observe the results.

An example of this comes from Georgia’s last legislative session, when lawmakers approved a seemingly innocuous piece of legislation—the Georgia Hemp Farming Act. It permitted the cultivation of hemp, which has various beneficial applications and uses. While hemp and marijuana are both forms of cannabis, hemp is different because it has only a minute amount of THC, the psychoactive element in marijuana that gives users a high.

Hemp is a perfectly safe plant, but the Georgia Hemp Farming Act has had surprising aftereffects and is giving prosecutors and police cottonmouth. Law enforcement, it turns out, doesn’t have a reliable method of testing THC levels—meaning prosecutors cannot prove whether individuals are in possession of marijuana or hemp.

This has forced district attorneys and solicitors to scramble for answers, but it appears that each jurisdiction is taking a different approach. A memo from the Gwinnett County Solicitor General’s office read, “Effective immediately, the Solicitor’s Office will not prosecute any marijuana cases.” Steve Ellis, Assistant Solicitor General of Cobb County, stated his office “will make decisions on a case by case basis.” Meanwhile, Bert Poston, District Attorney for Murray and Whitfield Counties, explained, “Pending cases not resolved by negotiated pleas will be postponed until we have the means to properly test the suspected marijuana.”

The Georgia Bureau of Investigation is supposedly close to creating a test to differentiate hemp from marijuana, but it will only be used for felony marijuana cases. Until a test is devised and becomes widely available, prosecutors will be forced to make difficult decisions: either turn a blind eye to misdemeanor marijuana possession cases or postpone them indefinitely, but the latter could violate the constitutional right to a speedy trial.

Certainly, some will herald this as temporary de facto recreational marijuana legalization, but don’t fire up that bong just yet. Recreational marijuana usage is still illegal at the state and federal levels, but until lawmakers address the law or a new THC test method is created, Georgia will be an interesting case study.

As it stands, Gwinnett County prosecutes 3,000-4,000 misdemeanor marijuana cases per year, and some have estimated that that there are around 30,000 such cases each year across the state of Georgia. This means in the interim, many of these cases will not be pursued, which could have a considerable impact on Georgia. It will likely save taxpayers money by relieving pressure on the judicial branch, reducing prosecutors’ workloads and limiting already-crowded local jail and prison populations. Indeed, on any given day, there are around 39,000 people housed in Georgia’s jails, and Georgia has America’s ninth-highest incarceration rate per capita. What’s more, so long as there is an embargo on misdemeanor marijuana possession prosecutions, many defendants will get a second chance and not have to grapple with a criminal record. Meanwhile, law enforcement can focus a greater amount of resources on more serious crimes.

Of course, the broader social impact of dismissing such marijuana cases needs to be considered, but other states have ruminated over this and ultimately legalized recreational usage. What works in other states may not work in Georgia for various reasons. But either way, it’ll be fascinating to see how this situation resolves itself. Will Georgia end in a fiery blaze of pot smoke before a widely available THC test is adopted, or will Georgians be just fine? Somehow, I think we will survive.