State Sen. John Whitmire has pushed back on some of the explanations given for the recent uptick in the Harris County jail population, beginning with the claim that it’s due to state jails taking longer than usual to pick up new inmates.
Noting the state prison system has “7,000 empty beds today,” Whitmire said that the closures have resulted in some temporary transportation issues that will be fixed shortly.
“It is a minimal, minimal issue and will be resolved within I would say in two weeks,” he said. “They are being picked up about four days later than they were a couple months ago on a transportation issue.”
Spokesman Jason Clark said it has taken the criminal justice department about one week more on average to pick up inmates as a result of the closures.
Whitmire also disputes the county’s contention that other large, urban counties are experiencing similar jail population growth, although some, including Bexar, have reported increases.
The uptick in the local jail population, Whitmire said, has more to do with – among other things – a policy implemented this year by the late Harris County District Attorney Mike Anderson to prosecute as felonies so-called “trace cases,” where a person is caught with less than 1/100th of a gram of crack cocaine. Anderson’s predecessor Patricia Lykos had treated those cases as misdemeanors, and claimed it helped to reduce the jail population by 1,000 inmates.
Anderson’s policy “is, no question, one of the factors” in the rising jail population,” Whitmire said, adding that it is an opinion he shares with “some tough Republican judges” like Mike McSpadden.
“We are the only ones that I know of in the urban areas that still prosecute less than 1 gram,” said the longtime state district judge, who supported the Lykos policy.
Anderson’s wife Devon Anderson, who was appointed to replace her husband this month after he died of cancer, told me Monday that she will continue to prosecute trace cases as felonies, providing there is probable cause, because state law says possession of any amount of cocaine is a felony “until the Legislature changes it.”
Anderson said Lykos was “engaging in a legal fiction” in prosecuting the cases as misdemeanors.
“I took an oath just last Thursday to uphold the laws of the state of Texas and that’s what I’m going to do,” she said.
Whitmire said he will urge Anderson to consider reversing her husband’s policy, and also has told her it is “nonsense to be talking about needing to transport inmates to other locations without first doing everything we can locally to have tough and smart jail policies.”
The thing about being the only one doing something is that either you’re right and everyone else is wrong, or everyone else is right and you’re wrong. Given the entirely predictable outcome of the trace case policy as it stands, it’s hard to argue for the former.
The jail population report shows that the number of people being convicted of state jail felonies – including trace cases – who are being ordered to spend time in the county jail instead of going to prison have increased 36 percent during the first six months of this year, versus the first six months of last year.
Whitmire said that is a problem that needs to be fixed, too.
“Why the hell are you gonna let ‘em clog up your Harris County jail” and give them a lesser sentence “when they could get up to two years in a state jail?” he asked.
Anderson said she will examine that statistic in a meeting with prosecutors on Wednesday to see if the office has been “giving a disproportionate number of state jail felons county time.”
“Overpopulation is not under my control, but I’m willing to look at options if I can help with that,” she said. “I want to work with Judge Cosper and I want to work with Sen. Whitmire, and the sheriff of course, if I can.”
It’s true that judges have more to do with the jail population than the DA does, but the trace case policy is something the DA has control over. It’s not productive to complain about what others are or aren’t doing to help with the problem if you yourself aren’t doing all the things you can do to help. A big factor, cited by Whitmire and others, is the lack of personal recognizance bonds. That is certainly something that judges control, but I’d bet that if the DA’s office signaled that they would like for judges to grant more such bonds, it would have an effect. Of course some defendants need to be held before trial, but many don’t, and we’re doing ourselves no favors by ignoring that. I’d like to see both Devon Anderson and Kim Ogg address that fact.