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(Photo/Jacquelyn Martin )

Caught by an Alabama police officer for holding less than a couple pounds of marijuana? You may be convicted of a felony in this state, but you aren't likely to go to prison - at least not the first time or two.

And not if you are white.

While more than half the nation has loosened marijuana prohibitions, with eight states legalizing marijuana for recreational use, convictions for felony pot possessions in Alabama have remained fairly steady.

However, some things have changed. Sentencing reforms in recent years have resulted in fewer people actually serving time in the state pen for pot, authorities say and state data shows.

As of Oct. 17, 2016, there were 220 inmates - four out of five of them black - convicted of 1st degree Possession of Marijuana being held in state prisons, according to numbers from the Alabama Sentencing Commission's recent annual report.

Overall that's a 69 percent drop from Jan. 3, 2009 when Alabama's overcrowded prisons held 708 inmates on that same charge.

The latest numbers also mark the first time in more than a decade that possession of marijuana was not among the 25 most common crimes for inmates in Alabama prisons, the commission's numbers show. In 2009 first-degree marijuana possession ranked 13th among crimes inmates were serving time for, just behind manslaughter (12th) and third-degree robbery (11th).

Nobody goes to prison for marijuana possession anymore, said Montgomery County District Attorney Daryl Bailey. He said the changes in the way Alabama handles marijuana has gone even further. "It's now hard to get someone to prison on a sale," he said.

But that doesn't mean local police have stopped making arrests, even if those arrested aren't likely to get sent to state prison.

And Alabama courts are still busy handling hundreds, if not thousands, of felony possession cases each year. And the breakdown along racial lines is far from even.

Net reduction in prisoners

As of Oct. 17, according to Alabama Sentencing Commission numbers, the 220 inmates still in a state prison for first-degree possession of marijuana included 178 black men and 39 white men.

Prosecutors and law enforcement officials believe that the number serving time in prison for marijuana possession are mostly those who were given probation but then committed another crime to have their probation revoked.

"A lot wouldn't be there if they hadn't messed up again," said Jason Murray, commander of the Talladega County Drug and Violent Crime Task Force. He also serves on a drug task force set up by Alabama Gov. Robert Bentley.

The population within the prison system serving time for possession of marijuana fluctuates from day to day. But it has dropped over the years. More inmates are being released than brought into the system. For example, in fiscal year 2015 there were 265 offenders placed into the prison on that charge while 445 were released that same year.

Murray said he has heard some people say they believe there are inmates serving time for simply having a joint. "That is totally bull crap," he said.

Convictions steady

Yet convictions for first degree possession of marijuana have remained fairly steady, according to sentencing commission figures.

Over the last decade convictions have fluctuated from about 900 to 1,200 each year. Alabama saw 901 convictions for first-degree marijuana in 2015, which was the most recent data available. That was at a time when judges were just implementing new sentencing reforms aimed at thinning Alabama's overcrowded prisons.

Prosecutors and law enforcement officers point to those sentencing reforms for the significant drops in people serving prison time for all drug possession offenses.

Yet, prosecutors have stayed busy. And the marijuana convictions continue to skew along racial lines.

From 2011 to 2015, according to numbers from the Alabama Sentencing Commission, black males accounted for 74 percent of the convictions in state court for felony marijuana possession. That's 3,691 convictions of black males compared to 956 convictions of white males over the same five-year span.

Ebony Howard, managing attorney for the Southern Poverty Law Center's Alabama office, said she "would not be shocked to learn that certain people based on race or class status" were disproportionately arrested, convicted, and sent to prison.

Meanwhile, in Alabama, women are rarely found guilty of marijuana possession. Women accounted for less than 7 percent of the felony marijuana possession convictions from 2011-2015.

As of Oct. 17, 2016, there were just three women in state prison for felony marijuana possession.

New rule for personal use

Among the reforms are new sentencing guidelines in 2013 aimed at keeping non-violent offenders out of prisons and a 2015 law that moves first-degree possession of marijuana - for personal use - from a class C felony into a newly created class D category of felonies. A number of non-violent crimes, including certain thefts, were also moved into that new class.

Under a D felony there is a sentencing range of not more than five years and not less than a year and one day. But any prison sentence meted out is to be served on probation or in a community correction facility for not more than two years. Judges also can impose drug treatment.

But Alabama law doesn't set clear thresholds for personal use. The law instead relies on the discretion of police and prosecutors.

If police determine a defendant had more marijuana than reasonable for personal use then the charge can become first-degree possession. That's still a Class C felony. The charge still carries up to a 10-year sentence.

Officer discretion

Howard said Alabama needs new rules for law enforcement to determine when an amount of marijuana is for personal use or non-personal use. The law does consider anything over 2.2 pounds to be trafficking. But it's a judgement call below that level.

"The way the statute is written leaves a lot of discretion (by officers)," Howard said. "What are needed are thresholds to force law enforcement to have objective charging."

Murray said that his officers use "common sense" when catching and charging someone with marijuana.

Officers will look at the weight of the drug, how it's packaged and the history of the person in determining how to charge them, Murray said. Unless there are extenuating circumstances if a person is caught with an ounce or less of marijuana they are likely to be charged with a misdemeanor or the D felony, he said.

Most people are not going to buy more than an ounce at a time for personal use, Murray said. "Anything over that we're going to take a real hard look at you," he said.

"Positive strides"

However, under new sentencing guidelines, even if a defendant is charged with a class C felony for possession of marijuana first-degree for non-personal use, they still are not likely to go to prison, authorities said.

"It makes it pretty much impossible to send someone to prison for possession of marijuana," Bailey said.

But that's not necessarily a bad thing, Bailey added. "Our objective should be getting the person help and getting them off the drug."

Bennet Wright, executive director of the Alabama Sentencing Commission, agreed.

"I think the State has made positive strides allocating resources to hire extra probation and parole officers to provide for more meaningful community supervision and to also allocate funds to connect probationers and parolees to additional mental health and substance abuse services that often were unmet before," Wright said. "Any time additional funds are invested into community programming and treatment, I think that is a positive effort."

Push for stiffer sentences

Bailey and other prosecutors, however, complain that judges no longer have a stick - the threat of prison time - to force drug users and dealers to change their ways.

Also fewer defendants in Montgomery County are choosing to go into drug court monitoring and treatment programs in an effort to have their charges eventually dismissed, Bailey said. Knowing that they don't face prison or jail time with a class D felony they will skip the intensive programs in drug court, he said.

Prosecutors recently met with state legislators to see about giving judges more leeway in sentencing drug offenders to jail or prison.

"We don't have the ability to hold them accountable through sentencing," said Barry Matson, Executive Director of the Alabama Office of Prosecution Services and District Attorneys Association.

People get addicted to drugs largely because of enablers, such as a loving mother giving their child money which later turns into that child stealing grandmother's broach, Matson said.

The justice system had been the last non-enabler, but that is no longer true with the new sentencing laws and guidelines, Matson said. "I think it makes the state an enabler," he said.

Poor and black

According to an October report from Human Rights Watch the majority of drug possession defendants in Alabama are poor and black.

According to the report, "Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States," the majority of drug possession defendants, including marijuana, were poor enough to qualify for a court-appointed lawyer.

While the report did not have any specific data on the race of those being arrested for drug possession in Alabama, it stated that "black adults are more than two-and-a-half times as likely as white adults to be arrested for drug possession in the U.S."

"In the 39 states for which we have sufficient police data, black adults were more than four times as likely to be arrested for marijuana possession as white adults," according to the report. "These figures likely underestimate the racial disparity nationally, because in three states with large Black populations--Mississippi, Louisiana, and Alabama--an insufficient proportion of law enforcement agencies reported data and thus we could not include them in our analysis."

Arrests

The numbers of people being arrested across Alabama for marijuana possession also isn't clear.

Records on marijuana arrests are spotty and some police agencies have not provided any numbers to the Alabama Law Enforcement Agency for its annual crime statistics report in the past six years due to electronic reporting issues. That includes numbers from the Birmingham Police Department, the state's largest police department.

Lt. Sean Edwards of the Birmingham Police Department said as of now, the department is not mandated to report its arrest data to ALEA. "We keep in house numbers. We do not break them down in marijuana categories. We list as narcotics arrest. This is for in-house only," he stated in an email to Al.com.

Of the numbers ALEA has reported since 2011 for agencies that did submit marijuana arrest data, the numbers have fluctuated between 2,359 in 2011, 3,233 in 2013 and 3,107 in 2014.

In 2015 the agency reported 2,642 arrests statewide.

But that spotty data clearly under-reports the real number of marijuana arrests in Alabama.

Just the numbers from Huntsville, Birmingham, Tuscaloosa and Jefferson County Sheriff's Office independently provided to AL.com, show more pot arrests in 2013 (3,744) and 2014 (3,562) than all the other law enforcement agencies combined for each of those two years reported to ALEA.

Birmingham in 2015 provided numbers to Al.com that showed the city force alone had 640 second-degree arrests and 261 first-degree arrests for marijuana in 2014. That was down from the year before when Birmingham had 654 second-degree arrests and 301 first degree arrests.

In 2014, Huntsville police also provided arrest data to AL.com. Statistics show 856 second-degree marijuana possession arrests and 286 first-degree marijuana arrests in Huntsville in 2014. The year before, Huntsville had 829 second-degree arrests and 285 first-degree arrests.

The city of Tuscaloosa also showed a combined 1,305 possession cases - both misdemeanor and felony - in 2013 and 1,089 in 2014. A breakdown wasn't available.

The Jefferson County Sheriff's Office, which is in the largest populated county in the state, provided figures that show marijuana possession misdemeanor and felony arrests by deputies of 370 in 2013 and 430 in 2014.

The sheriff's office also reported a 27 percent jump last year in marijuana possession arrests - from 429 in 2015 to 544 in 2016.

Still working on marijuana

Law enforcement agents say they have turned their focus to more deadly drugs such as heroin, but are not overlooking marijuana.

"We're still going to keep working on marijuana," said Phil Sims, deputy commander for the Etowah County Drug Enforcement Unit. "Marijuana is still here and we're doing what we can."

Sims and a few other law enforcement officers say they are seeing more powerful and addictive marijuana - nicknamed "Loud" - coming into Alabama from the other states that already allow the growing of marijuana for recreational use.

That marijuana is stronger because it has higher levels of tetrahydrocannabinol - or THC - that is mostly responsible for the psychological effects, Sims said.

For example, last May a Tacoma Washington man, Dejarik Macon, was arrested by the Etowah County unit after intercepting a mailed package containing approximately 8.5 pounds of high-grade marijuana, Sims said.

Lt. Teena Richardson, assistant commander of the West Alabama Narcotics Task Force, said narcotics officers attribute any decline in the number of marijuana cases to the legalization of marijuana in others states.

"The dealers aren't making the money so they have started distributing the more illicit drugs such as meth, heroin, cocaine and other forms of synthetic controlled substances," Richardson stated in an email to AL.com. "What we have seen in the past few months was an increase in synthetic marijuana cases and other synthetic drugs in the area."

A national Pew survey found even among law enforcement attitudes have shifted. More than half of active police favor legalizing medical marijuana, and a third favor allowing recreational use. About 32 percent of police officers and 49 percent of the public support legalizing marijuana for both private and medical use, according to the Pew survey.

Thirty percent of police also favored outright ban on marijuana, which is twice the number among all adults, according to the Pew survey.

But law enforcement officers in Alabama say they don't see Alabama legalizing marijuana for recreational use anytime soon.

"I don't know of anybody in law enforcement who would agree to legalize marijuana," Murray said.

Other than the outright legalization of the recreational use of pot, in practice the state already treats those who possess the drug fairly leniently, Murray said. "With the creation of the D felony that's about as loose as you can get," he said.