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DA’s office ends trace case prosecutions

Good.

Kim Ogg

Harris County District Attorney Kim Ogg has stopped prosecuting thousands of so-called trace drug cases, which typically stem from glass pipes seized from users containing little more than residue of crack cocaine, officials said Thursday.

The recent change means it is not prosecuted at all, unless there are extenuating circumstances said Tom Berg, First Assistant District Attorney. Houston police officials have given the new policy their approval, but with an important caveat.

“We want to go after people who are a real danger to the community, violent against people, violent against property,” Berg said. “It’s a smarter practice that everybody agreed to go forward on without a great deal of controversy.”

Berg said several factors combined to push the policy change, including limited resources, a raft of exonerations in recent years because of erroneous field tests and the rise of lethal drugs. He singled out fentanyl, a chemical which is 100 times more powerful than heroin and is used to cheaply spike more expensive drugs.

“Fentanyl and carfentanil – horrible substances – potentially fatal substances on contact,” he said. “Inadvertent contact, in the context of trying to scrape up some crud out of carpet in a car, could have catastrophic effects on the officers. They could be inhaling it without knowing it.”

[…]

The change is being eyed with cautious optimism by police representatives who had previously argued against the change.

“We’re not opposed to it as long as the DA is going to hammer hard these (burglary of motor vehicle) suspects who are crackheads anyway,” said Ray Hunt, president of the Houston Police Officers Union. “These are the ‘trace case’ people, that’s who they are. They’re the people who are breaking into cars to steal change.”

The police union has argued that arresting people for drug possession because of residue on paraphernalia keeps them from burglarizing cars, homes and businesses.

In the past, much less than a gram of the illegal drug – often just scrapings – could be prosecuted as a felony adding 2,000 to 4,000 people a year to Houston’s crowded dockets.

Hunt said the district attorney’s office promised to vigorously prosecute car burglars in exchange for police support of the policy.

“If we start getting cases where we have BMV (burglary of a motor vehicle) suspects and it’s a crackhead with a pipe on them and that person gets one or two days in jail, then it’s a serious problem and they’re not living up to the deal,” Hunt said.

This was indeed a campaign promise of Ogg’s, and it had been the policy under Pat Lykos, before Devon Anderson put a stop to it. Getting buy in from the police union, however tentatively, is a big deal since they were a big part of the reason why it was so contentious under Lykos. Refocusing on property crimes is also a good move, as those offenses are seldom punished now and affect a lot of people in a tangible way. All in all, a big win. Let’s hope the follow-through is as successful. The Press has more.

Roadside drug tests

Maybe this isn’t such a good idea.

go_to_jail

A Houston police officer pulled Barry Demings over as he headed to work in Beaumont and plucked a spot of white powder off the floorboard of Demings’ year-old Ford Explorer.

Demings had just detailed the SUV – and wondered later if a speck of soap upended his life.

“I never even saw it,” he said, explaining how the officer dropped the speck into a small test kit and said “it came back for cocaine.”

Demings was charged with felony drug possession based on the results of the primitive test that costs about $2 and has been found to have a high error rate. He was told he could face a sentence as long as 30 years based on old prior convictions – no one mentioned waiting for a crime lab to verify the officer’s roadside result.

He insisted he was innocent but got scared and accepted a plea deal. He lost his job, his girlfriend and his Explorer. Upon release, he decided to leave Texas behind forever.

In 2015 – seven years later – the Harris County District Attorney’s Office notified him that Houston’s crime lab found no cocaine in the sample. He filed a writ of habeus corpus with the Texas Court of Criminal Appeals and was finally exonerated.

He is among 298 people convicted of drug possession even though crime lab tests later found no controlled substances in the samples, according to a far-reaching audit of drug cases by the Harris County District Attorney’s Office. So far, 131 of them, like Demings, have had their convictions overturned in cases that go back to 2004. About 100 other cases remain under review for potential dismissal.

In all 298 cases, prosecutors accepted both felony and misdemeanor plea deals before lab tests were performed. The $2 roadside tests, which officers use to help establish probable cause for an arrest, cannot be used at trial as evidence under Texas law.

[…]

The Harris County audit of drug possession convictions and related lab results going back to 2004 was launched in 2014 by Inger Chandler, an assistant district attorney in charge of the DA’s conviction integrity unit, after a reporter from the Austin American-Statesman called her about reversals of several drug convictions by the Court of Criminal Appeals.

The following year, Harris County District Attorney Devon Anderson changed her policies and directed prosecutors generally to stop accepting guilty pleas in felony drug cases before receiving lab reports confirming the evidence. Plea deals are still accepted prior to lab testing in misdemeanor drug cases, and in some felony cases in which jailed defendants can qualify for probation.

The forensic evidence problems uncovered by Chandler’s unit began around 2005, when Houston’s city crime lab – then overseen by HPD – lost several staff members and simultaneously saw a huge increase in drug cases, which created a backlog.

Lab officials implemented a triage system for drug testing with the DA’s office: Drug cases slated to go to trial would get processed first. For defendants who had accepted plea deals, the crime lab would later go back and test samples, often months or years after the guilty plea had been entered.

Chandler’s audit of wrongful convictions has been possible because the Houston Forensic Science Center, formerly HPD’s crime lab, preserved and tested the evidence even in the plea deal cases.

“We were keeping the evidence, and with the agreement with the District Attorney’s Office that we would continue to process even if it was pled,” said James Miller, manager of the center’s controlled substances section. “Because we both understood there was always the possibility that the substance may not actually be illegal.”

So far, prosecutors have identified and examined 456 flawed cases. Of those, 298 people had been convicted despite having no illegal controlled substances in their possession at all. In 29 of the 298 wrongful convictions, there had been no filing for relief because a defendant declined to pursue the case or faced other legal obstacles.

In other cases among the 456, the types or quantities of controlled substances were misidentified or there was too little evidence left to perform a confirmatory test.

About 78 percent of the 456 flawed cases came from the Houston Police Department, which still uses roadside tests that were developed in the 1970s. Chemicals in small vials turn colors when exposed to cocaine and other illegal drugs but can be easily misinterpreted by officers and can have high false positives, Miller and other experts said.

Emphasis mine. This article is a followup to a much longer ProPublica piece that explored the history and background of these roadside tests; another story, about the chemist who created these kits in 1973, is here. You should read them both – I don’t know about you, but I had no idea about any of this before now. We could have a debate about whether it’s reasonable for police officers to conduct roadside drug tests like this, but the high error rate for this test, which hasn’t been updated sine the 70s, makes it a particularly poor reason to hold people in jail or encourage them to plead out on a charge that is based on a crime that may never have existed. The point, again and again and again, is that there are way too many people in our jails who should not be there. The cost of this, both to the people who have been subjected to this and to us taxpayers who foot the bill for it, is unacceptable. When are we going to do something about it?

If we really cared about improving mental health in Texas

We would have expanded Medicaid at our first opportunity.

It's constitutional - deal with it

It’s constitutional – deal with it

Federal health officials say people with mental illness and addictions are being left behind in Texas because the state hasn’t expanded Medicaid to more low-income adults.

The health care program for the poor is controversial for many Republicans. The U.S. Supreme Court ruled that expansion was a voluntary part of the Affordable Care Act, and 19 states have declined to expand it.

A new federal report estimates that expanding Medicaid in Texas could help 406,000 mentally ill and uninsured Texans get treatment, according to Richard Frank, an Assistant Secretary for Planning and Evaluation at the U.S. Department of Health and Human Services.

“If states are serious about addressing mental illnesses, opioids, and other substance use disorders, expanding Medicaid offers a unique opportunity to do so,” Frank said in a national conference call with reporters. “It will bring people into effective treatment and is fully paid for under the Affordable Care Act.”

The new federal report discusses how untreated mental illness affects homelessness, job productivity, and jails and prisons. The report says states that did expand Medicaid were able to save money on programs for mental health or the uninsured, or divert the money to other programs.

A copy of the report is embedded at the link above. This is the same song we’ve been singing since 2011, with this being roughly the 1000th verse. The positive effect of getting access to reliable mental health care for these people cannot be overstated – among many other things, it would keep a lot of so-called frequent flyers out of jail – but the state Republican leadership does not care and will not hear it. You know how whenever there’s another gun massacre, the only thing we’re all allowed to say is that we should do more to promote mental health as a way to maybe not have so many gun massacres? The part we’re not allowed to say is that the Republicans in this state won’t do a damn thing to actually promote mental health. It’s the same old story, and the only way it ends is with electing different leaders. The Statesman has more.

A chance to help the sobering center

It’s a good cause.

When the Houston Recovery Center turns to the public in coming months for the first time and asks for help, the request will likely seem small and perhaps odd: The city-backed sobering unit wants to raise funds to pay two van drivers.

But it’s a request that says a lot about the direction of the center, a place for those whose only crime is public intoxication and who, a year and a half ago, would have gone to jail. The center offers a place to sober up with medical supervision and get help with addiction.

The vans are part of what substance abuse professionals call the “warm handoff” principle, the idea that a person who agrees to get help should be quickly shepherded to a detox or treatment center, whatever the next step might be, without pause and with the help of a familiar face. It’s a critical decision easily derailed.

“It’s huge,” Houston Recovery Center director Leonard Kincaid said. “For that moment, you have them. It’s this window of opportunity and you have to do everything right.”

And so the center will make its first donation call for about $320,000 to cover drivers, maintenance, insurance and gas for two vans that will transport clients to medical and social services 24/7. Adding the van service would mark a significant milestone in what staff says is an effort to expand the reach of the over-night sobering center the city opened in spring 2013 to reduce jail crowding and free up police officers.

[…]

Seeing the daily need for addiction services in the city, Kincaid said, has inspired the center to try to offer more long-term care; there are 369,000 people age 12 and older with substance disorders in Houston and fewer than 10 percent currently have access to treatment, according to the most recent National Survey on Substance Abuse and Health.

The center’s 18-month treatment program, for those with addiction, is tracking about 150 people through recovery. Of those enrolled in the program, 87 percent are homeless.

“The responsibility and the burden is becoming very real for us,” Kincaid said.

See here, here, and here for the background. By all accounts, the sobering center has been a welcome addition to the landscape, and clearly there’s no shortage of need for it. To a large degree, you can’t deal with homelessness without also dealing with addiction. We need to make sure the center gets the funding it requires to keep doing what it does and do as much of it as it can.

HPOU wades into the DA race

They’re all in for incumbent Devon Anderson.

Kim Ogg

Kim Ogg

The already intense race for Harris County district attorney became more heated Wednesday with the Houston Police Officer’s Union attacking Democratic candidate Kim Ogg, saying that during her time at Crime Stoppers she violated the privacy of victims she was supposed to help support.

The 5,300-member group is endorsing GOP incumbent Devon Anderson, who declined to comment about the attack, which included a radio ad that was released earlier in the day.

At her news conference later Wednesday, Ogg called the attack a “desperate act,” then accused Anderson of making backroom deals involving a former judge and at least one former police officer, allowing them to avoid prosecution.

“The union’s support of Ms. Anderson, launching an ad 13 days before the election is a desperate act by this incumbent,” Ogg told reporters. She denied any wrongdoing and said the ad was not true.

At the union news conference, Anderson touted her record and thanked area law enforcement agencies for their endorsements.

“Since I’ve been in office, we’ve tried almost 700 jury trials,” Anderson said. “And of those, over 70 percent are violent criminals, the rest are property crimes and a very small percentage are drug cases.”

[…]

During the union’s news conference, Hunt said Ogg’s style was similar to former district attorney Pat Lykos, who was ousted in the 2012 GOP primary by Mike Anderson.

“It’s going to be very much like it was under Pat Lykos,” Hunt said of an Ogg administration. “It would make our job a lot more difficult.”

The union has long protested the so-called “trace case policy” instituted by Lykos, then repealed by Anderson. The police unions want crack cocaine users caught with powder-covered crack pipes to be arrested on felony charges. Citing clogged courts, overcrowded jails and the inability for the defense to re-test the scant amount of evidence, Lykos directed police to ticket those offenders for misdemeanor possession of drug paraphernalia. The policy was applauded by criminal justice system reformers and derided by law enforcement agencies.

“There’s a direct correlation between the trace case people and the amount of burglaries we have,” Hunt said.

Ogg denied the claims made by Hunt and the HPOU and pressed her own charges against Anderson, but that last bit above is what all this really comes down to. Anderson, even with her willingness to make incremental changes in how pot prosecutions are handled, represents the way things have always been done in the Harris County DA’s office. Ogg, like Lykos, represents change. As is always the case with change, not everyone likes the idea. As you know, I agreed with Lykos’ trace case policy, and I do think the DA’s office could stand to do things a little differently. I look forward to seeing what Kim Ogg can do in that position. Ray Hunt would disagree, and that’s fine. That’s why we have elections. Hair Balls has more.

Anderson proposes her own pot prosecution reform plan

It’s a trend.

Devon Anderson

A move to decriminalize the possession of small amounts of marijuana emerged Wednesday as a major issue in the contentious race for Harris County District attorney with both candidates claiming ownership of the idea.

At a news conference, Republican Devon Anderson, the incumbent, said that beginning Monday, non-violent first offenders carrying less than 2 ounces of marijuana will be able to escape prosecution by performing eight hours of community service or going through a drug awareness class.

“We are targeting the people we believe are self-correcting and will be ‘scared straight’ by being handcuffed and transported,” Anderson said. “Our goal is to keep these individuals from entering the revolving door of the criminal justice system.”

The announcement, a month before Anderson faces Democrat Kim Ogg in November’s election for district attorney, brought harangues from the challenger who in August announced her idea for dealing with misdemeanor marijuana possession.

“This is not a new plan,” Ogg said. “It’s a ‘me too’ program by a candidate who has shifted her position with the winds of political change.”

[…]

Anderson’s six-month pilot program is different because it only affects first offenders, about 2,000 people a year, the incumbent said. It also requires police officers to take suspects to a police station, write an offense report and catalog the evidence.

While they may sound similar, the two plans are fundamentally different because of their primary goal. Ogg’s plan is an effort to keep police officers on the street to catch more serious criminals. Anderson’s plan is a move to get first offenders to stop using the illegal drug before it affects their future.

See here for more about Ogg’s plan, which she formally announced in July but which she had been talking about for considerably longer. Ogg’s plan would have the greater impact, and given Anderson’s initial resistance to the idea of changing course on pot arrests, it seems likely that in the absence of a strong electoral challenge (and some political cover) she might not be talking about this at all. Still, even if she had to be led here, it’s good to see that being smarter and less reflexively punitive about drug offenses is now the mainstream bipartisan position. It’s another step down a long road towards much-needed broad reform, so kudos to Anderson for taking it.

The debate over handling drug cases in the DA race

An update from the Chron.

Kim Ogg

Kim Ogg

Incumbent Devon Anderson and challenger Kim Ogg have somewhat similar thoughts on dealing with misdemeanor marijuana possession, but are on polar opposites when it comes to trace amounts of crack cocaine, a perennial debate in Harris County.

On marijuana, both are proposing a diversion program, which offers the opportunity for offenders to avoid conviction and jail time.

Earlier this month, Anderson, a Republican, released to the Houston Chronicle general contours of a pilot plan for first-time marijuana offenders, which is still being developed with the Houston Police Department, the Harris County Sheriff’s Office and other county law enforcement offices.

The biggest difference between Anderson’s plan and the one announced last month by Ogg is whether those caught with the drug will be arrested and taken into custody.

Ogg also says her plan will save taxpayers millions.

[…]

The benefit to Ogg’s plan, advocates said, is keeping police officers on the street instead of spending time bringing in low-level offenders.

“It doesn’t make sense for people who are going to be released anyway to be driven across the county,” said Joe Ptak, who heads Texans Smart on Crime, a group working to implement “Cite & Summons” across the state. “Having police on patrol is the most effective way to protect communities, and Cite & Summons gives communities the opportunity to do that.”

Under Anderson’s plan, scheduled to go into effect this fall, every suspect will be taken to a police substation, where they will be booked in to the system and evaluated.

If deemed a low-risk, first-time offender, the person will be eligible for the program, which dismisses the case pending completion of community service and possibly, classroom instruction. If the requirements are successfully completed, no conviction appears on the person’s record.

Repeat offenders and those with prior convictions will be booked into jail and will not be eligible for the program.

“The new program still allows for the police to make an arrest,” Anderson said in an email response to questions. A former felony court judge who presided over a drug court docket.

Under both plans, those who fail to comply with any of the requirements would be charged with the original case and arrested.

Ogg unveiled her plan last month, though she has been talking about it for a lot longer than that. I’m glad to see that DA Devon Anderson is partially on board with the idea, but 1) carting arrestees to police substations isn’t really that much of a savings in time and effort over hauling them downtown, and 2) given that Anderson was originally opposed to making any changes in handling pot cases, you have to give Ogg credit for changing the nature of the debate. She’s been the leader here, Anderson is trying to catch up.

And the election will raise again the different opinions on handling trace amounts of crack cocaine.

If elected, Ogg said, her first order of business will be to stop accepting criminal charges for people caught with cocaine residue in their mouths, on crack pipes and on other drug paraphernalia. The so-called “trace case” policy has see-sawed among the DAs. In 2012, GOP challenger Mike Anderson unseated incumbent Pat Lykos in part by attacking her policy of issuing misdemeanor tickets instead of arresting drug users for felonies in cases where police found tiny amounts of cocaine residue.

The issue was especially important to law enforcement agencies in 2012 and hinges on whether police officers should spend time and resources taking crack addicts to jail to be prosecuted.

He had argued that arresting low-level drug users was an effective tool for police to go after kingpins and high-level drug dealers. He also said it reduces crimes like burglaries, especially car break-ins, a position that was widely embraced by law enforcement unions.

Anderson reversed Lykos’ policy shortly after taking office. His wife, who was appointed to the post after his death last year, adopted his stance.

“How the courts and (assistant district attorneys) handle these cases in court can help address the offender’s problem with addiction,” Anderson said in a written response. She said her administration offers treatment options and deferred adjudication when appropriate.

As you know, I support the trace case policy, first implemented by Pat Lykos. I don’t believe ditching that policy has led to better outcomes, and I don’t believe being hardnosed about it is worth the cost. Ogg is also quite correct to point out the disparate effect that trace case arrests have on people of color. She’s on the leading edge of the trend, and I support the direction she wants to go.

Ogg proposes marijuana prosecution reforms

I like the sound of this.

Kim Ogg

Kim Ogg

Kim Ogg, the Democratic nominee for Harris County district attorney, said Friday she will ticket and enforce community service for, instead of arrest and jail, thousands of people arrested each year in Houston for low-level marijuana possession.

“We can save up to 10 million dollars a year, folks,” Ogg told campaign supporters and reporters at a Friday news conference. “We think that taxpayers deserve to have their money spent wisely.”

Ogg said more than 12,000 people were charged in 2013 with marijuana possession of less than 4 ounces, then jailed for an average of five days, costing taxpayers $4.4 million a year.

Under her plan, if she is elected in November, those suspected of misdemeanor possession would be cited, have to go to court, then spend two days cleaning up litter. If the community service is successfully completed, offenders would not have a conviction on their record.

“This is the future of marijuana prosecution in Harris County,” she said. “Our tagline is ‘No jail, no bail, no permanent record, if you earn it.’ ”

This is a concept Ogg has discussed before, among other places in her interview with me for the primary. When President Obama made a statement back in January about pot not being more harmful than alcohol, Ogg supported that position. What matters about Ogg’s plan here is that the goal is to keep this kind of arrest off someone’s record, because being tagged with such an arrest, even for a tiny amount of pot, can have all kinds of negative effects for things like higher education, employment, child custody, and so on. Short of actual legalization, this is probably the best way to minimize the disproportionately serious consequences for such a minor offense.

What’s interesting is seeing DA Devon Anderson’s stance evolve over time. She was quite critical of President Obama’s words in January but was supportive when Rick Perry spoke about decriminalization a week later. In this story she said the DA’s office is working on something similar to Ogg’s proposal, which is as far as I know the first we’ve heard of that. This is to her credit, but I think it’s fair to say that Ogg was there first, and that Ogg has put more thought and planning into her idea. That’s probably why the group Republicans Against Marijuana Prohibition (RAMP), last seen opining in the Baker Blog about when marijuana might be legalized in Texas, sent out a press release applauding Ogg and calling on Anderson to “clarify her position on handling low-level marijuana possession offenders”. Kudos to Ogg for being front and center on this. Texpatriate and John Coby have more.

Steve Stockman does something I support

I know, I’m as shocked as you are.

Zonker

Texas Rep. Steve Stockman, R-Friendswood, has recently backed a bill to require federal officials to comply with state marijuana laws, which was introduced in April and has since garnered support from Congressmen on both sides of the aisle.

The Respect State Marijuana Laws Act of 2013, introduced by California Rep. Dana Rohrabacher, a Republican, would bar federal drug enforcement agents from penalizing any person abiding by the marijuana laws in their own state.

The law “shall not apply to any person acting in compliance with State laws” — that is, people who are in compliance with their state laws regarding possession, manufacture or use of marijuana will not be subjected to federal penalties.

Twenty-one states and Washington, D.C. have already legalized medical marijuana, and both Washington and Colorado legalized marijuana for both medicinal and recreational use.

Stockman became the 19th sponsor of the bill, according to this website that you might not want to click if you’re at work. Let’s be perfectly clear about this: Steve Stockman is a whackjob, a terrible Congressman, and a reprehensible human being. Nothing about this changes any of that, but it does show that even a reprehensible whackjob can occasionally land on the right side of a public policy matter, even if as PDiddie notes it will have zero effect in his home state. And while I approve of the basic idea in this bill, I am fully aware of the bad history behind the “leave it to the states” argument. I’d much rather see a bill that simply scaled back federal enforcement of marijuana laws, as a prelude to a larger scaling back of the out of control “war on drugs”. But I don’t think we can get to that today, even with polling data showing much greater acceptance of decriminalization. I see that as a multi-step process, with the RSML Act of 2013 being the first step. More states need to take action, and the debate needs a wider airing at the federal level, possibly – hopefully – in the 2016 Presidential election. In the meantime, I support this effort, even if I don’t care for some of the people pushing it. Politics is like that, and you have to start somewhere. Grits and Texpatriate have more.

Moving the focus back to un-crowding the jails

This is a positive development.

Devon Anderson

Newly appointed Harris County District Attorney Devon Anderson on Wednesday pledged to curb the increasing number of low-level felons being sentenced to serve misdemeanor time in the county jail rather than going to prison, known as a “12.44a” sentence, saying she will encourage her prosecutors to push rehabilitation.

There has been a more than 30 percent increase this year in the number of state jail felons who receive so-called 12.44a sentences, according to information kept by the Criminal Justice Coordinating Council, which Harris County created in 2009 to improve the justice system and reduce jail overcrowding.

The increase has been identified by the council as one of several reasons that the population of the Harris County Jail – the state’s largest lock-up – has escalated this year to the point of being close to capacity again.

Those types of convictions include so-called “trace cases,” where people are arrested for possessing less than 1/100th of a gram of crack cocaine.

Anderson’s husband, the late District Attorney Mike Anderson, who took office in January and died of cancer last month, sparked speculation that the jail population would increase when he decided to prosecute trace cases as felonies. His predecessor, Patricia Lykos, treated the cases as misdemeanors, saying it was difficult to accurately test drug residue and took officers off the streets for too long. She also claimed it helped reduce the jail population.

Devon Anderson on Wednesday, attending her first coordinating council meeting since being appointed as her husband’s replacement about two weeks ago, said she was “not alarmed” by the number of state jail felony filings this year, which have not increased substantially.

“What I was alarmed about was the 12.44a disposals,” she said. “Creating a class of felons, first offenders, about 800 people who have never been in trouble… now have felony convictions because of the 12.44a punishment. That is what we’re going to address. “

She continued: “I’m a former drug court judge and I’m very interested in rehabilitation and that is what I’m going to encourage my prosecutors to work on, to identify people whether they’re first offenders or if they have prior drug felonies and no violent priors, to try to get them to enter treatment. As a former defense attorney, I know that there are some people who just (say), ‘I don’t want to be on paper, I don’t want treatment, I want to go right back on the streets.’ Well, the problem is they come right back to the jail. So we need to work with defense lawyers and judges. We all need to get unified on this and try to get treatment and to try to stop the revolving door.”

Anderson had previously told the Chronicle she would continue her husband’s trace case policy, but would look at whether they are “giving a disproportionate number of state jail felons county time.”

See here and here for some background. Anderson’s position seems a bit muddled to me, but maybe that’s just because I don’t know what “12.44a” means. Is there some other class of felony that isn’t a trace case but is a “12.44a” that’s been trending up and causing an increase in the local inmate population? You lawyers out there, please chime in on this. Be that as it may, the fact that Anderson is acknowledging the problem and her office’s role in it, that’s a positive sign. Assuming she’s not putting up a smokescreen, then there’s a path forward from here.

On a tangential note because I didn’t get around to blogging it earlier, there was a story in the Chron about what the new public defender’s office has been pu to.

Harris County’s recently created public defender system is seeing positive results, including an uptick in dismissed cases for Houston’s mentally ill, according to a report released Tuesday by the Council of State Governments Justice Center.

“It says we provide a lot of value to the system,” Alex Bunin, the county’s chief public defender, said of the results.

Those results include dismissal rates that are five times higher for mentally ill misdemeanor suspects than similar defendants with appointed attorneys.

The office, which began in 2011 with a state grant funding the first four years, handles about 6 percent of the county’s indigent trial-level cases. The rest of the indigent cases are handled by private attorneys appointed by one of the county’s 40 criminal court judges.

In general, the report found that the public defender’s office does more investigation, which leads to better results in court, advocates for the defense bar in community issues and offers free training, mentoring and advice that was not available before.

Those courtroom results include a greater proportion of dismissals, deferred sentences and acquittals. The report also pointed out that the office sees a smaller proportion of “guilty” verdicts than appointed lawyers. Overall, the public defender office secured acquittals at three times the rate of appointed or hired attorneys, according to the report.

Pretty good so far. There are some complaints in the story from Jared Woodfill about the cost of the PDO, but Woodfill benefited greatly from the old system of judicial appointments of defense counsel for indigent defendants, so take his comments with a grain of salt. Grits has more.

Whitmire weighs in on Harris jail population

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.

Sen. John Whitmire

Sen. John Whitmire

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.

Kim Ogg to run for DA

That didn’t take long.

Kim Ogg

Kim Ogg, a former prosecutor, anti-gang investigator and crime prevention leader, told supporters Saturday that she will run for Harris County district attorney.

In an email, Ogg said she would announce Monday that she would run in the Democratic primary in the spring. Voters will choose a district attorney in November 2014.

Ogg is a former felony prosecutor in the district attorney’s office. She also has led Crime Stoppers of Houston and the city’s anti-gang task force.

She is the first candidate to formally announce a run for the office since the recent death from cancer of District Attorney Mike Anderson, a Republican.

[…]

“My focus will be to fight crime with 21st century tactics, and this will be accomplished through re-prioritization of resources, including forfeiture funds,” Ogg stated in her email. “On my first day in office, I will end the practice of accepting ‘trace drug cases’ where there is no evidence to convict and instead will shift the focus to dismantling organized crime from the top down.”

Ogg will formally announce her candidacy today. I’m familiar with Ogg’s previous work with the city, but I’ve not met her and didn’t receive the email, so this is all I know right now. I’m glad to hear that she would go back to the Lykos policy on trace cases, and her timing on that is propitious given the recent news about the jail filling up again. Assuming the Democrats can avoid another Lloyd Oliver situation, this has the makings of a very interesting race. If nothing else, as things stand we could have a race between two women for District Attorney. How often has that happened in Texas? In any event, I look forward to meeting Kim Ogg in the future and hearing more about her campaign.

We have to worry about jail overcrowding again

Not good.

go_to_jail

After a nearly two-year hiatus, the Harris County jail population is nearing capacity, prompting officials to again consider whether to ship some inmates to out-of-state lockups.

The latest jail population report shows the total number of detainees dropped significantly from 2009 to the end of 2011, when the population finally dipped below the 9,434-inmate capacity. Since January, though, it has increased from 8,581 to 9,340, the highest it has been in nearly two years.

Local officials say there are a variety of factors at play, and that the county is not alone.

Among them: The recent closure of two prisons, which has resulted in the Texas Department of Criminal Justice taking longer to pick up inmates destined for prison. There also have been recent increases in the number of felony case filings, detainees awaiting trial and parole violations, the population report shows. Then there is the historic trend of jail populations swelling in the summer and declining in the fall.

“It’s not one, single thing,” said Caprice Cosper, who heads the county’s Criminal Justice Coordinating Council.

[…]

Harris County, though, also has seen felony filings increase by more than 18 percent in the last two months, as well as a 36-percent increase in the first half of the year in the number of people convicted of felonies but ordered to spend time in the county jail instead of going to prison.

That includes convictions for so-called “trace cases,” where people are arrested for possessing less than 1/100th of a gram of an illegal drug.

The late District Attorney Mike Anderson, who took office in January and died of cancer last month, sparked speculation that the jail population would increase when he decided to prosecute trace cases as felonies. His predecessor, Patricia Lykos, treated the cases as misdemeanors, saying it was difficult to accurately test drug residue and the arrests took officers off the streets for too long.

While the number of state jail felonies being filed, including for trace cases, has not changed dramatically, Cosper said “what has gone up is the way they are being punished.”

>During the first half of last year, 1,670 state jail felons were sent to the county jail. That increased to 2,273 during the first half of this year.

“That’s all trace case policy,” said lawyer Patrick McCann, a former president of the Harris County Criminal Lawyers Association who recently was appointed by Gov. Rick Perry to the Specialty Courts Advisory Council.

The end result of all this is that the county is talking about the need to outsource inmates to Louisiana again. That would be an embarrassment if it were to happen. Caprice Cosper thinks it won’t need to come to that, as TDCJ will start picking up inmates in a more timely manner and some new legislation aimed at diverting convicts from jail will kick in. I hope she’s right, but in the meantime it would be wise if someone were to press our new District Attorney about the trace case policy. As recently as March it was reported that there had been no increase in the jail population due to the resumption of filing trace cases as felonies. We need to take a long, hard look at that, and at the number of felonies being filed overall. We know that the criminal court dockets are overcrowded, and that has an effect on the jail population since it means longer wait times for cases to be resolved. We also know that lack of ability to make bail, plus a lack of personal recognizance bonds issued by the courts adds to the problem as well. The Chronicle reported on that less than two weeks ago, but that connection wasn’t made in this story. Caprice Cosper is right to say that this problem has many aspects. Some of them go back a long way, back to the bad old days of Harris County shipping inmates all over the place. The fact that we haven’t needed to do that lately doesn’t mean we’ve fully addressed the underlying causes that got us into this situation in the first place.

Pot policy

From Hair Balls:

A silly image for a serious topic

Rehman Bhalesha was raised around marijuana. That’s not to say that he dealt, or that he pushed, or that he used. He didn’t have to. Weed, growing up, turned wherever he went.

“Living in South Texas, you really see the substance flood high school and college campuses and neighborhoods, without any regulation, in a completely illicit market,” Bhalesha, set to be a third-year student at the South Texas College of Law, told Hair Balls. “I’ve spent my entire life seeing a strong need [for regulation].”

Experiences in Houston and Austin crafted his views. Academic research buttressed his conclusions. And then, in 2012, after letters to legislators affected little change, a blog post from Rice University’s Baker Institute Drug Policy Program lit an idea. Bhalesha approached his dean. What was the potential for a crossover? What was the potential for a joint project between STCL and one of the preeminent drug-focused think tanks in the nation?

“We really have an amazing dean — he’s really forward-thinking when it comes to stuff like this,” Bhalesha related. “The stars just aligned.”

Months after that initial notion, and after Bhalesha had contacted those affiliated with the Baker Institute’s DPP arm, he’s produced a 22-page paper (below) examining the realities and challenges facing marijuana legislation within Texas. Surveying tax policy and enforcement methods, detailing relationships between marijuana and tobacco, observing opportunities to reduce adolescent marijuana usage and increase state revenue, Bhalesha has taken a fresh eye to the issue of marijuana enforcement within Texas.

Furthermore, the paper comes at an opportune time, published on the heels of the ACLU’s recent report blasting Texas for the racial disparities within marijuana-related arrest rates.

Bhalesha’s paper is worth your time to read. He makes a good case for decriminalization, noting that among other things, getting busted for pot makes one ineligible for federal student loans, and at the end of the paper he includes a model bill for the legislature. I can’t see that going anywhere in 2015, but I could see some criminal justice reformers such as Rep. Harold Dutton getting behind it. As with many other issues, this is the sort of thing that will have to demonstrate a certain level of public support and more importantly public engagement before it is likely to gain traction in the Lege. It could happen, but not without enough people pushing for it. Bhalesha’s document is a good starting point for that.

If we need more courts, we should ask for more courts

I’m not sure why there hasn’t been more of a push to deal with this.

Harris County 1910 courthouse

As Harris County’s population continues to swell, more people means more crimes. And that results in more work for the county’s 22 felony courts.

But no court is busier right now than the 209th, which is overseen by Michael McSpadden, Harris County’s most senior felony court judge. He has a docket of pending cases that eclipses all other felony courts locally.

With a caseload of 1,159, McSpadden has 440 more pending cases than his colleagues’ average of 718, according to a report this month by the Harris County Criminal Justice Coordinating Council.

Judges and others say the larger the docket, the more every case is slowed down. That means suspects who are lingering in jail and the victims in those cases may wait years for the case to go to trial, plead out or get dismissed.

The correlation between the size of the docket and the quality of justice, however, is a hotly debated question.

[…]

The more than 1,100 cases in his court is a surprising number that even McSpadden says needs to come down.

“This is my 31st year on the bench and when I had one of the better dockets, I was criticized that I might be rushing cases through – putting too much pressure on attorneys to plead cases, which was certainly not true,” McSpadden said last week. “In the past three years, it has built up, and I have no idea why. I don’t think my attorneys are handling cases differently.”

[…]

“The best judge in the criminal courthouse has the highest docket,” said Todd Dupont, president of Houston’s criminal defense lawyer organization. “(McSpadden) doesn’t let fear of the size of his docket dictate the quality of the proceedings, which is where a lot of judges fall short in Harris County.”

Dupont, who practices in front of McSpadden, said the problem in Harris County is that other judges worry too much about docket sizes.

“Historically we have seen judges use that reasoning to encourage people to plead guilty,” Dupont said. “Who cares about the size of the docket? Conversations about dockets are meaningless unless you use it as a tool of oppression, and that’s just mean, and probably illegal.”

[…]

“The bottom line is we haven’t had a new court since 1985, and the filings haven’t slowed down and aren’t going to slow down,” [Presiding Judge Susan] Brown said. She said there is little hope of getting more judges, more courts or more money. “We’re trying to find creative ways to resolve these issues because we’re not going to get any help.”

Although the crime rate has fallen in recent years, the county’s population continues to grow, creating a net increase in criminal cases going through the system.

Since 1985, when Houston’s last criminal district court was created by the Legislature, the number of felony filings has doubled from 22,000 a year to 44,000. Courts that used to see 1,000 cases a year are now scrambling to deal with twice that many.

Well okay then. Maybe there isn’t much hope for getting more judges, but has anyone asked? If the number of felony filings has doubled since the last time there was a new criminal court added, then isn’t that some pretty strong evidence that there’s a need? I recognize that Harris County may not want to have to pay for more judges, but if everyone is so concerned about the quality of justice being dispensed in courtrooms with such overflowing dockets, isn’t it irresponsible not to ask for more judges? Complaining about it isn’t going to change anything. There’s a fundamental disconnect here.

I should note that there is another way to deal with this, one that doesn’t involve a legislative or financial solution, and that’s to file fewer felony cases. Though there was no breakdown of that “22,000 felony filings” number, I’ll bet that a significant fraction of them are drug cases, and that a significant fraction of those are non-violent possession cases, including the infamous “trace cases” that are now being filed as felonies again. As of a few months ago at least, that had not caused an increase in the county jail population, but that doesn’t mean there isn’t an effect. We could file fewer such cases as felonies, and we could push the Legislature to reform the laws that make drug possession and other non-violent crimes felonies. Again, though, complaining is not likely to bring about any changes.

No increase in jail population as yet

Good to hear.

DA Mike Anderson

When Harris County District Attorney Mike Anderson toppled incumbent Pat Lykos in last year’s Republican primary, some county budget hawks got fidgety.

The campaign’s central issue, after all, was Anderson’s opposition to a Lykos policy that treated cases with drug residue of less than 1/100th of a gram as misdemeanors. Lykos was ignoring the law, said Anderson, who has announced he will prosecute these “trace cases” as felonies.

That trail, of course, leads to the county jail, which at $178 million is the single largest line item in the county’s $1.5 billion annual budget. The sheriff’s office has come in under budget two years in a row, thanks in large part to a drop in the jail population, which, at 8,711 as of Thursday, is about 29 percent below its recent peak of 12,188 in September 2008.

Commissioner Jack Cagle and other county officials admit to concern about whether the policy change will drive up the jail population, but all say they view Anderson as a reasonable guy who will strike a balance. In Anderson’s first three months in office, there is no evidence of an increase in the jail numbers, according to data from the sheriff’s department.

[…]

If the police make an arrest and a lab confirms a positive for illegal drugs, Anderson said, the law requires him to prosecute. However, Anderson said, his time as a drug court judge taught him that treatment, not jail time, often is the best route.

“I have seen people that were dealing with addiction for 10 or 15 years and just lived in horrible conditions because of the addiction. Through treatment, they’re able to get their lives back and become productive members of society,” he said. “Being creative on the punishment end of things is not against the law. We can find some way to actually deal with treatment in these areas rather than incarceration, and that’s a lot less expensive.”

“It hasn’t been very long ago that we finally decided that just because you’re being smart on crime does not mean you’re being weak on crime,” he continued. “We need to use the best tools that we have, and treatment is a very good tool.”

I’ve expressed my concerns about this before. Anderson addressed the issue with me in the interview I did with him before last year’s primary, and I’m glad to see that so far at least he has not caused any recurrence of the overpopulation problem as a result of this shift in policy. It’s early days, of course, but so far so good. I hope this trend continues, and I hope that if it doesn’t everyone remembers where the responsibility for it lies.

Trace cases to be prosecuted as felonies again

So says our new DA.

DA Mike Anderson

Newly elected Harris County District Attorney Mike Anderson said Thursday he will prosecute as felonies drug cases that involve trace amounts of crack cocaine, reversing his predecessor’s stand on the so-called “trace cases.”

“If there is enough evidence to test in a lab, then we’ll take the charges,” Anderson said.

Anderson campaigned on the issue last year after then District Attorney Pat Lykos implemented a policy that treated cases with drug residue of less than 1/100th of a gram as a misdemeanor.

Lykos said her policy ensured that crimes prosecuted as state jail felonies had enough of the illegal drug so an independent lab could test it on behalf of the defendant.

She said it was more fair and noted that it reduced the population in the county’s overcrowded jail system.

[…]

The change was applauded by law enforcement and criticized by one court official on Thursday.

“They are felons, the state has said they are felons and they need to be prosecuted as such,” said Ray Hunt, president of the Houston Police Officers’ Union. “These persons, these crackheads are the people who are breaking in to motor vehicles to steal your laptop off the front seat, to grab the purse that’s visible, all those things they can sell for $25 to go buy another crack rock.”

He noted that state law is clear and said Lykos ignored it with her policy.

“If the legislators want to make this not a felony, then they can,” Hunt said. “But to say this is a felony and then have a district attorney say they’re not going to enforce state law is not the way elected officials are supposed to act.”

Harris County’s most senior criminal felony judge, Michael McSpadden, disagreed with Anderson’s change.

“I wish he would use his discretion to relieve the great number of cases that I don’t think are proper in felony court,” McSpadden said. “But I understand that the correct way is to address the Legislature.”

As the story notes, Anderson did make an issue of this, so having duly won the nomination and general election we should not be surprised that he is proceeding to do what he said he would do. It would have been nice to have had a debate about this for the general election, but after we Democrats Olivered ourselves, that wasn’t in the cards. Anderson says later in the story that he hopes many of these cases will be resolved by probation, so as not to overcrowd the jails. I hope so, too.

As you know, I agreed with Lykos’ policy on trace cases. You do get into some dicey issues when law enforcement officials start talking about what laws they will and will not enforce – witness all the idiot Sheriffs out there now saying they won’t enforce any new gun laws that they have decided are unconstitutional, because it’s in the Constitution that local law enforcement officials get to make that determination – but DAs do routinely exercise their discretion about what cases to pursue and what cases to move down the priority list. It is true that this is a job for the Legislature to fix, but until they get their act together – and in a 140-day session, they too have to prioritize – there’s a lot of people being needlessly jailed, labeled as felons, and not getting the help they need. This does not serve the public interest, and it puts DAs in this position. I thought Lykos took the right approach, but the point is that she shouldn’t have had to make that decision.

Once again on bail and jail overcrowding

Grits returns to a familiar topic.

Harris County has successfully reduced its jail population in the last couple of years to the point where they no longer must ship inmates to jails in Louisiana and other Texas counties due to overcrowding. And despite Chicken-Little pronouncements from the police union and tuff-on-crime zealots, the sky didn’t fall and in fact crime continued to decline in Houston. As of August 1, the jail was at 86% capacity, with zero inmates housed in other counties, and there’s little question that those numbers could decline even more through relatively minor policy tweaks. But that would require the cooperation of judges and the district attorney’s office, and there are few signs at  the moment that those public officials will act in the taxpayers’ interest to further reduce jail costs.

The most significant causes of reduced jail populations in Harris County stem from changes in policies at the District Attorney’s office: The cessation of charging people caught with drug paraphernalia with felonies based on trace amounts, and the creation of the DIVERT program for DWI defendants, which reduced the long-time trend of offenders choosing jail over probation for low-level DWI offenses. Unfortunately, the incoming District Attorney has pledged to reverse both those policies, meaning we can expect the Harris jail population to climb upwards beginning next year. Soon thereafter, the inevitable calls to build more jail space will resume in earnest, with more Chicken Littles telling us the sky will fall if more people aren’t locked up for longer periods.

It doesn’t have to be that way, and besides the DA, local judges are primarily responsible for excessive incarceration in H-Town. Last weekend, the Houston Chronicle ran an important story implicating jail populations (“Judges leery of no-cost personal bonds,” Sept. 9) that merits Grits readers’ attention. The story focused on a familiar theme to long-time Grits readers: the failure of Harris County judges to utilize personal bonds, requiring bail in most cases regardless of risk assessments from the county’s Pretrial Services division.
[…]

Mark Hochglaube, the trial chief for the new Harris County public defenders office told the Chronicle that “bond practices in Harris County force some innocent defendants to plead guilty because they’d rather accept a plea deal and a short sentence than spend months in jail waiting for a trial. In a few cases, he said, defendants have been held awaiting trial longer than the maximum sentence they could have received.”

It’s not just felony cases, though. According to the Pretrial Services division’s annual report for 2011 (pdf), some 60,179 misdemeanor defendants entered the Harris County Jail last year. Of those, 4,441 were granted personal bonds, 2,608 paid cash bonds (meaning they paid the full bail amount themselves instead of using a bail bondsman), and 25,495 employed the services of commercial bail bond companies. That means 27,635 people, or 46% of misdemeanor defendants couldn’t make bail and remained in jail either until they pleaded out or their case was otherwise resolved. Among felony defendants, 69% could not make bail and remained incarcerated until their cases were disposed. (That happens more quickly in Harris than some other jurisdictions because of the DA’s direct filing system, but as defense attorney Paul Kennedy noted, it still results in a system designed to maximize pressure on defendants to accept a plea deal.)

These numbers demonstrate why, as corrections expert Tony Fabelo has noted, expanded pretrial detention has been the main driver of increased jail populations since the turn of the century. By his calculations, while statewide jail populations increased 18.6% between 2000-2007, the number of pretrial detainees increased 49.2% over the same period. In that sense, Harris County’s situation isn’t unique except for its massive scope and outsized costs.

I asked Mike Anderson about this when I interviewed him back in February. He made it sound like it would be no big deal to reverse the two policies Grits cites, but that remains to be seen. As for the judges, I’m curious about something. As we know, until the 2008 election the judiciary in Harris County was entirely Republican. In the 2008 Democratic wave, Democratic candidates won eight of the nine criminal district court benches that were up for election that year. The other 13, as well as all 15 of the criminal courts at law, were on the ballot in 2010 and were all retained by Republicans in their wave year. Is there any way to know if bail policies differ in any significant fashion between the Rs and the Ds? Whatever the share of the problem was the judiciary’s fault, it all landed entirely on the Rs prior to 2009, but now Ds make up a bit more than 20% of that group (they’re down to 7 criminal district court judges now, since Kevin Fine resigned), so there ought to be a way to compare. Are Democratic judges responsible for fewer pretrial detainees on a per-capita basis than their Republican colleagues, or is there no clear partisan pattern and it just varies by individual judge? I’d like to know.

On locking up prostitutes

It doesn’t make much sense.

Busted 32 times in 17 years for prostitution in Austin and other places, Beatryce Hall’s rap sheet reads like a frequent-flier ticket for Texas prisons: 11 times in 11 years.

Many of those trips were courtesy of a 2001 Texas law that allowed prosecutors to charge prostitutes with a felony and send them to a state lockup after three misdemeanor prostitution convictions. The law was designed to clear up chronic problems with truck-stop and street hookers in Dallas.

But now, with more than 350 prostitutes — most from Houston and Dallas — occupying bunks in the state prison system, and dozens more serving time for drug and theft charges related to the sex trade, questions are being raised about whether the enhanced criminal charge is a waste of money. For about one-fourth the cost, such nonviolent, low-level criminals could be rehabilitated in community-based programs aimed at curing their addictions to alcohol and drugs.

At a time when state officials are looking to save money wherever they can and be smarter on crime, the issue is expected to be on the agenda when the Legislature convenes again in January — another example of Texas’ push for additional treatment and rehabilitation programs that began five years ago and has helped drive a decline in the state’s prison population.

“I thought life was a big party,” said Hall, 42, a mother of two daughters. “I started out dancing, got on drugs, went to the streets where I could make $300-400 a night. I wanted to, but couldn’t get out of that cycle.”

With just more than two months left on her latest less-than-a-year sentence at Plane State Jail in Southeast Texas, Hall plans to get out and stay out — thanks to a prison program started last January to help prostitutes beat their old habits.

State leaders say the program illustrates why prostitutes should never have been sentenced to prison in the first place. It costs $18,538 to house a convict in state prison for a year and about $15,500 in a lower-security state jail, according to Legislative Budget Board calculations. By contrast, a community-based program costs about $4,300 a year.

“She’s a perfect example of why these women should not be taking up expensive prison beds,” said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, who said that the 2001 felony prostitution law had broad support at the time and acknowledged that he voted for it.

“It’s nuts that we’ve got this many prostitutes in prison, people that we’re not afraid of, but we’re just mad at,” he said. “By locking them up, we’re not fixing the problem — we’re just spending a lot of money incarcerating them, warehousing them, when we could be spending a lot less getting them treatment so they can get out and stay out of this business.”

As the story notes, few other states imprison prostitutes as Texas does. The 2001 enhancement law was a misguided “get tuff on crime” attempt that has since proven to be shortsighted and needlessly expensive. Treating prostitutes in the same fashion as drug users and getting them into rehab to break the cycle of addiction and abuse is less expensive, more effective, and a whole lot more humane. Texas has taken some good steps in recent years to de-emphasize incarceration. Let’s hope the Lege takes this step in the upcoming session. Grits has more.

Armstrong gives up the fight against USADA

Wow.

Lance Armstrong

With stunning swiftness, the U.S. Anti-Doping Agency said Thursday night it will strip Lance Armstrong of his unprecedented seven Tour de France titles after he dropped his fight against drug charges that threatened his legacy as one of the greatest cyclists of all time.

Travis Tygart, USADA’s chief executive, said Armstrong would also be hit with a lifetime ban on Friday. Under the World Anti-Doping Code, he could lose other awards, event titles and cash earnings while the International Olympic Committee might look at the bronze medal he won in the 2000 Games.

Armstrong, who retired last year, effectively dropped his fight by declining to enter USADA’s arbitration process — his last option — because he said he was weary of fighting accusations that have dogged him for years. He has consistently pointed to the hundreds of drug tests he passed as proof of his innocence while piling up Tour titles from 1999 to 2005.

“There comes a point in every man’s life when he has to say, ‘Enough is enough.’ For me, that time is now,” Armstrong said. He called the USADA investigation an “unconstitutional witch hunt.”

“I have been dealing with claims that I cheated and had an unfair advantage in winning my seven Tours since 1999,” he said. “The toll this has taken on my family and my work for our foundation and on me leads me to where I am today — finished with this nonsense.”

USADA reacted quickly and treated Armstrong’s decision as an admission of guilt, hanging the label of drug cheat on an athlete who was a hero to thousands for overcoming life-threatening testicular cancer and for his foundation’s support for cancer research.

“It is a sad day for all of us who love sport and athletes,” Tygart said. “It’s a heartbreaking example of win at all costs overtaking the fair and safe option. There’s no success in cheating to win.”

Tygart said the agency had the power to strip the Tour titles, though Armstrong disputed that.

You can read Armstrong’s statement here, and his lawyer’s letter to the USADA here. The funny thing about this is that if USADA does strip Armstrong of his titles, there may be no one else who can be awarded them.

The Tour has taken away titles from two riders: Floyd Landis in 2006 and Alberto Contador in 2010. Each tested positive for a banned substance while riding to his Tour victory.

Landis, a former teammate of Armstrong, iniataed USADA’s investigation of Armstrong.

If Armstrong’s titles are taken away it is unclear who would be declared the winner. Most of the cyclists behind Armstrong on the podium were suspended for using drugs including Jan Ullrich, Ivan Basso and Alexander Vinokourov.

Here’s a radical idea: Why even bother testing? If they’re all doping anyway, then no one is really getting an advantage, and they playing field is sufficiently level. Well, it would have been level for everyone except Armstrong himself, who has passed every drug test given to him, and he managed to win anyway. I don’t really follow cycling, and I never paid that much attention to the Tour de France, even when Armstrong was dominating it. I have at best a surface-level knowledge of the history here. From that perspective, I have no idea why the USADA has been going after Armstrong so hard. I don’t get it. Be that as it may, it looks like the USADA will finally get what it’s been after for all these years. Mission accomplished, I guess.

Inmate outsourcing on the way out

This is unequivocally good news.

Dropping inmate numbers at the Harris County Jail will let the county end its nearly 5-year-old practice of shipping overflow inmates to Louisiana and other Texas counties within days, Sheriff Adrian Garcia said this week.

The jail population has fallen 31 percent since 2008, to 8,573 inmates. The jail has a capacity of 9,434, but has at times held more than 12,000. Garcia hopes the expense of contracts with far-flung jails – totaling $31 million in the last two years – has ceased for the foreseeable future.

As of Friday, the sheriff had no inmates in Louisiana and just 21 elsewhere in Texas; more than 1,600 inmates had been outsourced as recently as June 2010.

“I don’t want to be overly optimistic that this is forever a thing of the past,” Garcia said. “There are factors outside our control that could occur at any given time. But we’re excited that today’s reality is that we no longer will be having people outsourced outside of Harris County and that it will be a savings to the taxpayers.”

We’ll discuss those outside factors later. I want to pause for a moment to take credit for the use of the term “outsourcing” for sending inmates elsewhere. I’ll be even happier if a few years from now we’ve forgotten that it was ever needed. The fact that (nearly) all of our inmates are now here in Harris County should not obscure the fact that there are still too many of them; at least, there are still too many of them for the number of guards in the jails. We have patched this problem, for which the county’s multiple-year hiring freeze is an exacerbating factor, by squeezing a lot of overtime out of the guards, a solution that is both unfair to them and expensive to us. Now that we’re not paying Louisiana to house some of our prisoners, maybe we can take some of the money we’d been spending on that and use it to hire a few more guards. The Sheriff will make that request at the Tuesday Commissioners Court meeting. I can’t wait to hear what their excuse to turn him down will be this time.

So why are there fewer inmates to outsource, anyway?

Officials attribute the drop in inmates to several factors:

Local and national crime rates are down. There were 36,851 new felony cases filed in Harris County last year, down from 38,133 in 2010, and 44,006 the previous year. Misdemeanor courts also are sending fewer inmates to jail.

Harris County District Attorney Pat Lykos’ decision to stop filing felony charges against suspects found with trace amounts of illegal drugs as of Jan. 1, 2010. Those carrying used but empty crack pipes or other drug paraphernalia now face misdemeanor tickets.

[…]

“We did the right thing and then all these other benefits flowed from it,” Lykos said. “There are more officers on the streets, we have jail cells for dangerous criminals, and we can get to trial quicker.”

The county has launched various diversion programs. In April 2010, Garcia began allowing nonviolent inmates who enroll in educational or work programs to earn three days’ credit for each day served. As of mid-December, 3,661 inmates had been released early under the program, which can shave up to two months off the maximum county jail sentence.

Again, as you know, I agree with and applaud Lykos’ policy. It was the right thing to do, for the reason she states, and you can see the benefit we have reaped from it, in dollars and cents. The Sheriff’s new diversion programs, aimed as Lykos’ trace-amount policy is at non-violent offenders, is also showing measurable results. The old maxim about locking up those we fear and not those we’re just mad at has a lot of wisdom in it. If we make better choices about who we throw in jail, it costs us less money. You may say that comes at the expense of public safety, except that the violent crime rate is down, in Houston and in Harris County. It’s not locking up more people, it’s locking up the right people that makes a difference.

As good as all this news is, there is still a lot of room for improvement:

Earl Musick, president of Harris County Criminal Lawyers Association, cheered the drop in jail population, but said his group remains concerned at the number of inmates who are awaiting trial, unable to make bail.

The number of pretrial detainees fell along with the jail head count last year, but their share of the total population stayed at about 60 percent. On Friday, 6,220 of the jail’s 8,573 inmates – or 73 percent – were pretrial detainees.

“I’m not saying everyone in jail is innocent, but there are innocent people that are having to make that decision: ‘I guess I’ll give up my right to a trial so I can get out of jail,’ ” Musick said. “We’ve been shouting this message for years that not everyone charged with a criminal act needs to be locked up.”

Musick praised the Criminal Justice Coordinating Council, and said judges are beginning to examine their pretrial and sentencing choices.

Those numbers include a lot of people who will not be convicted of any crime, or at least of any crime that would normally include jail time, who are nonetheless going to spend days, weeks, even months in jail because they couldn’t make bail. Some of these people will wind up being acquitted, having their charges dropped, having their charges pleaded down to non-jail offenses, or being convicted and ultimately being sentenced to less time than they served pre-trial. This is the judiciary’s responsibility, and while they are making improvements, they have been responsible for this for a long time. Get enough of them to adopt more sensible practices, or to be replaced by those who will, and Sheriff Garcia won’t need to grovel before Commissioners Court for more jailers, as reducing the numerator in the inmate-to-guard ratio also accomplishes the task. Whether we do this the more cost-effective way or not is all our choice. Grits has more.

Lykos v Anderson

I obviously don’t have a dog in the Republican District Attorney primary fight, but I like a good high-profile political battle as much as the next junkie, so stories about it are interesting to me.

[DA Pat] Lykos argues she is a reformer with three years of improvements under her belt while Mike Anderson, a popular 30-year veteran of the courthouse, is trying to convince voters the machine used to be better run.

“A prosecutor needs to run that office,” said Anderson, who was an assistant Harris County district attorney for 16 years before spending 12 years as a felony criminal court judge.

“It’s an enormous undertaking for anybody,” Anderson said. “It would be very hard for anybody who has never been a prosecutor and never tried a case as a prosecutor to run that office.”

Lykos scoffs at the criticism. She insists that her experience as a former police officer and a former judge lets her put together the big pieces of the criminal justice puzzle.

“We cannot go backwards. Those days are gone,” Lykos said. “We have to work smart, we have to be tough and always fair.”

Like I said, I have no dog in this fight, but at the risk of making Murray Newman‘s head explode, I do think Lykos has been an improvement over Chuck Rosenthal. Might Kelly Siegler have been a similar improvement over Rosenthal? Maybe, though I felt strongly at the time that bringing about change necessarily required a genuine housecleaning. From a crassly political perspective, I preferred to have our candidate C.O. Bradford run against Rosenthal’s top lieutenant than against some outsider. Maybe Mike Anderson would be an improvement over Lykos – maybe the Rosenthal problem was the man himself more than anything else, so that any change would have been sufficient – I have no idea. What I know is that Rosenthal was a clown and an embarrassment, and Lykos, whatever else you may say about her, has not been.

“She is someone who Republican women, who are the heart and soul of the Republican party in Harris County, would die for,” said Harris County GOP chairman Jared Woodfill. “She has earned their respect.”

Woodfill heartily endorsed Lykos.

“She came in to that office at some challenging times and has done a great job,” Woodfill said. “Pat has a very successful record, and the last thing we need is a big primary fight at the top of the ticket.”

I marvel at this, because Democrats would openly revolt if our party chair picked a side in a primary between two candidates of good standing. I can see the merit of Woodfill’s position, though I disagree about the merits of a big primary fight, but we do our business differently, and I prefer it that way.

Republicans will have to decide between the two in April, but there won’t be any confusion about where either stands.

Anderson has attacked Lykos for DIVERT, a program she created that allows the equivalent of deferred adjudication for first offense DWIs, and her “trace case” policy, which lessened penalties for possession of trace amounts of crack cocaine or crack pipes.

Lykos says the trace case policy has lowered the jail population by 1,000 inmates and freed up resources for more severe crimes.

As you know, I agree with Lykos on this. That causes some conflict for me when I think about this politically. On the one hand, I’d rather see Anderson win because I like my opponents to be wrong about important things. On the other hand, I’d rather see Lykos win because we’re all better off when bad ideas get rejected. So yeah, I’ll be staying neutral.

More on Lykos versus the cops

Here’s another Chron story about the recent dust-up between Harris County DA Pat Lykos and six Harris County police groups that don’t like her policy that trace amounts of crack will not be prosecuted as felonies. Two points that are worth highlighting from the story:

State District Judge Michael McSpadden has presided over Houston’s criminal cases since 1982. In that time, he said, the “War on Drugs” has been lost and he has changed his mind about his “get tough on crime” stance. He urges a policy of treatment and second chances for addicts.

“Pat Lykos and I are not close, and in fact probably don’t like each other, but she’s right about this,” the veteran jurist said this week. “Almost everyone’s in agreement except, I guess, the police unions.”

McSpadden said he, not Lykos, has led the charge to change how these trace cases are handled.

“No one respects law enforcement more than I do, but they’re wrong about this,” McSpadden said. “I want them out there going after the career criminals, the sex offenders, the people who pose a real threat to our society, and not someone who has a residue amount of drugs.”

I agree completely with this sentiment. Doing otherwise, which is to say what we have been doing all along, is unsustainable, unaffordable, and unjust. The effect of Lykos’ policy change is clear:

In November, Harris County Sheriff Adrian Garcia, Harris County Commissioner El Franco Lee and others tasked with criminal justice reform said Lykos has been instrumental in reducing the jail population, and her trace policy is the big piece of the equation. Statistics on how many trace cases are affected are hard to come by because possession of little baggies of cocaine or methamphetamine and small crack rocks fall in the same category as the trace cases once did: possession of less than a gram.

In 2009, there were 10,674 charges for that offense according tho the DA’s office. After the policy, the numbers fell to 5,942 in 2010 and so far this year are at 5,235.

And while police could count the number of paraphernalia tickets issued, officials say this number is not indicative of the actual number of stops because cops on the street are loathe to do hours of paperwork to issue a ticket punishable by a $500 fine.

According to numbers available through the county’s Criminal Justice Coordinating Council, authorities believe the policy means there are about 400 fewer inmates in jail on any given day, part of a 2,000 inmate decrease over the past two years.

The Harris County Jail is overcrowded and understaffed. We ship out inmates to other counties and to Louisiana because we don’t have any place to put them. We can spend a hundred million dollars building more jail space and millions more every year running it, an option the voters rightly rejected in 2007, or we can be smarter about who we put in jail. Like it or not, those are the choices.

By the way, the campaign of Mike Anderson, the Republican running in the primary against Lykos who sided with the cops on this issue, sent out a press release Monday announcing that he had received the endorsement of our old buddy Steve Hotze. I’m not sure why they have me on their press distribution list, but they do so you can see that release here. Those of you reading this who vote in Republican primaries, as far as I’m concerned you now have two reasons not to vote for Mike Anderson in March. Grits has more.

Lykos versus the cops

Various law enforcement unions are not happy with Harris County DA Pat Lykos.

Leaders of six Harris County police organizations Tuesday announced a vote of no confidence in District Attorney Pat Lykos, saying she has “shirked her duty” and has turned down viable cases for prosecution.

The no-confidence vote – a rare public fissure in the traditionally close relationship between police and prosecutors – was triggered by Lykos’ announcement Monday that she would seek re-election, police officials said. The six groups, including the Houston Police Department, represent more than 10,000 present and former law officers in the county.

[…]

Lykos brushed aside police criticism of her policy of not accepting felony charges against suspects caught with trace amounts of drugs, usually found in a crack pipe or as the result of a nasal swab.

She said she wants to go after cartels, not crack pipes.

“We’re not prosecuting the residue cases, the crack pipe cases, or the flakes extruding from someone’s nostrils,” she said. “That’s why my focus is on dangerous criminals, not just getting arrests for the sake of having statistics.”

The police groups could not cite any cases or statistics relating to cases prosecutors declined or dismissed.

They were critical of Lykos’ policy, announced in January 2010, to bring misdemeanor charges in cases where the drug residue is less than one-100th of a gram.

Sorry, but I agree with Lykos here. Prosecuting these cases as felonies would mean even more inmates in our already overcrowded jail. That’s the most costly and least effective way to deal with low-level users, whom we should be diverting into treatment as the primary option. As someone who’s been advocating policies that will ease the overcrowding in our jail, I am glad to see DA Lykos take steps in that direction. There are plenty of things for which to criticize Pat Lykos, but this is not one of them. I will be very disappointed if the eventual Democratic nominee for DA goes after her over this.

On that score, by the way, I am aware of two candidates for the Dem nomination so far: Former prosecutor Zack Fertitta, and perennial candidate Lloyd Oliver. His campaign kickoff got a mention on CultureMap, which should give you some idea of who he is, and I’ve posted a copy of the press release he sent out when he filed beneath the fold. We’ll see if anyone else jumps in on the Democratic side. Lykos has also now drawn a Republican opponent, Mike Anderson, and since I received the statement she sent out about that, I’ve included it as well.

UPDATE: Here’s a Chron story about the entrance of former Judge Mike Anderson into the DA race. Not surprisingly, he’s siding with the cops on this. I’m not impressed.

UPDATE: Grits weighs in.

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Getting smarter about crime, state prison edition

Some good news on the criminal justice front.

Texas has a new swagger that comes from a recently released U.S. Justice Department report showing the growth of the state’s prison population is slowing to the extent that three new prisons slated for construction have been scrapped. At the same time, the state is becoming the unlikely new role model for a prison reform movement spreading across the country.

State Rep. Jerry Madden, R-Plano, and state Sen. John Whitmire, D-Houston, worked across partisan lines to implement the “reinvestment movement” in 2007, which they say is just starting to show results. The program invests state funds in drug, alcohol and mental health programs to treat offenders rather than just prisons to house them.

“Texas is showing the rest of the country that if you look at research you can find ways to cut costs and crime at the same time,” said Adam Gelb, director of the Pew Center’s public safety performance project, a nonprofit think tank. “Just this week the work that Texas has done was featured prominently at the national conference on state legislatures in San Diego. States are learning that they just can’t build their way out of crime.”

There’s still an incredibly long way to go on this, as we still lock up almost 30% more people per capita than the nation as a whole, but it’s a very good start, and a lot of credit is due to Rep. Madden and Sen. Whitmire for their leadership on this. Others like State Sen. Rodney Ellis have done good work as well, but have run into a roadblock in the Governor’s mansion. As with many things in this state, there’s going to need to be a change at the top before any real progress can be made.

I wish the article touched on what all this meant in terms of costs and savings to the state, but perhaps that data isn’t available or conclusive yet. Given the recent efforts in Harris County to do something about the level of incarceration here, all of which comes at a good time to be talking about smart ways to economize, I believe that an emphasis on the cost benefit analysis of programs like these will have traction. It would be real nice to have some momentum on this going into the next legislative session.

More on the new DA drug policy

Mark Bennett notes the new policy for dealing with trace amounts of drugs as announced by the Harris County DA’s office and suggests there’s little to be concerned about.

What we’re really talking about here is a small number of people—the Harris County Sheriff’s Office guesses that 750 or fewer people are in Harris County’s jails for possession of trace amounts of controlled substances; there are a few people serving sentences of between six months and two years in State Jail as well for trace cases. The Office of Applied Studies of the Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration estimated that 8% of Americans over the age of 12 were current illicit drug users. Harris County has almost 4 million people. If (interpolating from Houston 2000 numbers here) 81.4% of those people are over 12 and 8% of those people are current drug users, then more than 250,000 Harris County residents are current illicit drug users.

In a county of nearly four million, can incarcerating 3% or 6% of the illicit drug users at any one time make a statistically significant difference in the amount of violent or property crime? It might, though I haven’t noticed any shortage of methheads wandering up and down my street under the current regime; I think Pat Lykos has indicated that she is willing to consider the possibility that things will get worse under her new policy.

If the resources taken to prosecute those 750 or 1500 people are then turned toward investigating and prosecuting thieves, burglars, and robbers will there be a net loss in public safety over six months? Pat Lykos is betting that there won’t. If she’s wrong, she can try something different, and if she’s right she has improved the criminal justice system for all time.

I should note that Mark had heard rumors about this change in policy back in October, and mentioned them again on his blog nearly a week before the Chron story appeared. Nicely done, Mark!

Getting smarter about crime

The news that Harris County DA Pat Lykos has changed the office’s policy to no longer will file state jail felony charges against suspects found with only a trace of drugs is good news indeed.

Lykos said the move “gives us more of an ability to focus on the violent offenses and the complex offenses. When you have finite resources, you have to make decisions, and this decision is a plus all around.”

She said she did not have figures for how many cases may be affected, because cases are filed as possession of less than a gram.

Of more than 46,000 felony cases filed last year, almost 30 percent, 13,713, were for possession of less than a gram of drugs.

She said that while having a crack pipe will be only a ticketable offense, police still will be able to search suspects and cars if they find one. She noted that other counties, including Travis and Bexar, have similar policies. In Fort Worth, she said, the minimum is twice as large — .02 of a gram.

Lykos said the policy may help reduce jail overcrowding, an an idea “cautiously” embraced by Sheriff Adrian Garcia.

“The sheriff is cautiously in support of the policy,” said Alan Bernstein, director of public affairs for the Harris County Sheriff’s Office.

The new policy will be reviewed after six months in response to concerns expressed by police that crack pipe busts help catch burglars. I think we could probably learn from other counties’ experiences to tell us about that, but I suppose that’s the politics of this. Be that as it may, this will enable to DA’s office to devote more of its resources to more serious crimes, and as with the proposal by County Commissioner El Franco Lee to let more inmates do cleanup work for quicker releases, it will have the effect of easing the jail overcrowding problem. Given how pressing that matter is, it’s very encouraging to see concrete steps like these being taken to deal with it. Kudos to DA Lykos for making the call. Grits and Murray Newman have more.

Operation Border Star

During the 2007 legislative session, $110 million was appropriated at Governor Perry’s urging for border law enforcement agencies to combat drug smuggling and gang activity. How’s that working out?

The state’s $110 million Border Star program, designed to help local authorities combat violent crime and drug smuggling, has been ineffective and a waste of resources, the American Civil Liberties Union of Texas said Wednesday.

In a study of 11 of the 40 border law enforcement agencies participating in the program, the group said authorities were stopping and searching thousands of vehicles but making few drug seizures and arrests. Also, it said, the 13 surveillance cameras set up on the border – a $2 million investment – netted just three arrests in their first six months of operation.

The ACLU said Operation Border Star’s performance measures encourage law officers to engage in work that doesn’t truly protect Texans from drug crime and emphasize geographic areas other than major drug corridors.

What resulted “was a disruption of the lives of ordinary citizens,” said ACLU policy analyst Laura Martin, who noted that the 29 other police and sheriff’s departments in Border Star didn’t respond to the request for information.

Program supporters say that although it may not have recorded great numbers of drug arrests, it’s a deterrent. And they said the departments studied by the ACLU account for just $5 million of the $110 million allocated and aren’t a representative sample.

“It’s proven that more boots on the ground disrupt and deter criminal activity along the border,” said Katherine Cesinger, spokeswoman for Gov. Rick Perry. “The governor believes that Operation Border Star and the state-led border security efforts are working.”

There’s that deterrent rationale again. Amazing what you can justify by claiming things would have been worse had you not spent all that money.

I read this story and I think about the people who apply for food stamps and CHIP and stuff like that who have to fill out numerous forms and submit to interviews and investigations to prove that they really need those funds. For just about every social program that we spend money on in this state, lawmakers demand to see results to justify that spending. Teachers are held accountable nine ways to Sunday for what goes on in their classrooms. But we drop a hundred million bucks on border security funds, and we’re supposed to accept Governor Perry’s faith that it’s making a difference? Where are the metrics and the reviews and the progress reports? I don’t get it. Stace has more.