Monday, November 17, 2014

Time for more sensible laws on low-level drug possession

State Rep. Senfronia Thompson has filed a pair of bills recommended by a bipartisan majority of Harris County district judges, led by Judge Michael McSpadden, to reduce the penalty category for low-level drug possession. HB 254 would change the crime of possession of less than a gram of a controlled substance from a state jail felony to a Class A misdemeanor, a switch that would save the state money on incarceration and reduce the burden on felony district courts, which handle a vast number of these relatively petty cases.

Meanwhile, Thompson's HB 253 would make possessing .02 grams or less of a controlled substance not a crime at all. The logic here is that unless there is at least that much available, crime labs use up all the sample during testing and none is left available for potential defense testing, which is a requirement under the U.S. Supreme Court's Confrontation Clause jurisprudence.

HB 253 is basically a Harris County specific bill. We're mostly talking about situations in which officers seize a crack pipe or other paraphernalia and send it to the crime lab to get scrapings to prosecute for drug possession, since possessing the paraphernalia is only a Class C misdemeanor. But the defense bar in Harris County pleads these cases out instead of demanding evidence be independently tested, resulting in thousands of felony convictions over the years for something that elsewhere would warrant a ticket, or nothing. Ending this ridiculous practice would also free up resources at overworked crime labs. Though it shouldn't be necessary, HB 253 is a really good bill.


Tom said...

I agree with Judge McSpadden about lowering the punishment ranges for small amounts of controlled substances. But I disagree with your slam on the Harris County defense bar for pleading dirty crack pipe cases.
All defense attorneys have an obligation to carry all plea offers to our clients. The Supreme Court has said so. It is the client's decision to take or reject a plea.
Most defendants in trace cases are indigent and cannot make bond. So, if we wait until the lab results are back, they will sit in jail weeks or months waiting. But many of these same defendants are statutorily mandatory probation cases.
The result is that they rot in jail if they make the state prove its case before getting probation but they go home that day if they plead guilty.
In other cases, the state makes a "one time only" offer that a client cannot turn down like pleading a 2-20 year enhanced state jail felony for a short time in state jail. Many of the clients take those offers rather than risk a lengthy sentence after the lab results come back.
Yes, in a perfect world we should recommend to our clients that they not plead guilty until the lab results are back. But, what do we do when the difference between waiting for the labs and pleading guilty today is the difference between rotting in jail or going home immediately?
Clients should not be forced to make those choices. Personal bonds should be routine at least in cases where the client is automatically entitled to probation if convicted. But that isn't my call. It's the judges'.

Gritsforbreakfast said...

@9:56, What's stopping defense counsel from requesting their own tests? Did the clients make that choice, too? Or are the lawyers afraid they won't get more indigent appointments if they piss off a judge by asking for money for experts? From conversations I've had with attorneys in Houston, the more likely answer is the latter.

If defense lawyers requested their own testing these trace cases would stop just like in all the other big Texas counties.

Anonymous said...

Didn't statutorily mandatory probation requirements go out the window with the 2007 reforms?

Also, I have mixed feelings about reducing the penalties for 2 reasons. 1) counties will end up picking up large increases in jail costs when these new Class A's are given jail sentences. You think jail expansion is a problem now? Just wait; And 2) If someone with a small amount of crack or heroin gets put on probation as a Class A and is in dire need of treatment, resources will be few and far between due to probation treatment funding restrictions (CJAD doesn't pay for misdemeanors any longer and only 10% of TAIP funds can be used on misdemeanants). If the Lege is going to do this, they'll need to loosen the purse strings and increase access to probation drug treatment.

Anonymous said...

Politics sure does make strange bed fellows. The liberals win by coddling drug offenders. The conservatives (at the legislature, at least) win by reducing the state budget and shoving yet another unfunded mandate back onto the counties. Win win!

Gritsforbreakfast said...

@1:03, what you're missing is that these aren't issues that bisect on a liberal-conservative axis. Practical requirements of government often impose solutions that don't issue from ideological but purely pragmatic impulses.

@11:35, as far as I know the 2003 bill you're mentioning, HB 2668 by Allen mandating probation on the first offense for state jail felonies, was not usurped by the '07 reforms but expanded upon by them.

On Class As drug cases, I bet in practice most would end up on misdemeanor probation. OTOH, the real county-jail budget buster I haven't written up yet is this bill, which would propel a raft of new jail building statewide if passed. Pass that thing and you'd never get your frequent flyers out of there.

Jim said...

Trace cases is not necessarily a Harris County issue. I have seen them in several East Texas counties.

Anonymous said...

Do it! Yeah! 'Cause .02 grams is two "sheets" of acid or 200 dosage units at modern levels of 100 micrograms/hit.

Joorie Doodie said...

Grits said:

"...what you're missing is that these aren't issues that bisect on a liberal-conservative axis. Practical requirements of government often impose solutions that don't issue from ideological but purely pragmatic impulses."

Amen, and amen, Grits, from the other side of the aisle. As a fiscal conservative I'm tired of seeing my own county (Smith County) waste millions of dollars on incarceration while they keep the hordes of lawyers buzzing around the courthouse like flies around you-know-what fat and happy.

Eliminating incarceration for low level drug possession could be a game-changer when it comes to dealing with jail overcrowding and could help local governments balance their budgets.