Friday, June 23, 2006

Changing pot penalties could boost enforcement, free up needed jail space

As Texas counties struggle with jail overcrowding, legislators looking toward 2007 should note a small but significant step they could take to reduce local overincarceration pressures and contribute to more rational criminal justice policies. Elsewhere I've described what counties could do, but this step would require a legislative fix: Change marijuana penalties for less than an ounce from a Class B to a Class C misdemeanor.

My bet: It would reduce jail overcrowding and actually increase enforcement.

That can't happen in Texas, you may scoff. Well the idea's not a new one and in 2005 a bill doing just that -
HB 254 by Harold Dutton - passed unanimously out of the Texas House Criminal Jurisprudence Committee on a 6-0 vote. (See a fact sheet by supporters.) It never received a floor vote, but House committee supporters included three Republicans: then-Chairman Terry Keel, and also Mary Denny and Debbie Riddle, known proudly as two of the most conservative members of the Texas House. Texas' favorite son legislator-blogger Aaron Pena also supported the measure.

Those folks aren't liberals and they didn't vote for the bill because they want to legalize drugs.
(Terry Keel was by then positioning himself for a statewide race - he failed to win a runoff against the incumbent in the GOP primary for the Court of Criminal Appeals, but not because of this issue.) They did it because the current system irrationally favors symbolism over substance - it's a case where being tough on crime (favoring higher sentences) isn't the same as being smart on crime, especially for counties. Here's why:

Texas arrests about 49,000 people per year for marijuana possession, most of them for small amounts - that's a majority of drug arrests in the state. Today possession of less than two ounces of pot in Texas is a Class B misdemeanor, the penalty for which is incarceration up to six months in jail. Because it is the lowest level offense risking incarceration, that means all sorts of defendant rights take effect, most prominently the right to counsel. Also, at a minimum the defendant when arrested will be temporarily jailed, either until they're released on personal bond, until they make bail, or in a worst-case scenario (where indigence meets obstinence) until trial.

When the jail is full or the officer is busy investigating more serious crimes, it wastes officers' time and jail resources to arrest someone for mere marijuana possession, especially since statewide, jails are too full to incarcerate them for anywhere close to the full maximum term. Class C misdemeanors, by contrast, don't cost the county jail space nor indigent defense expenses, and actually generate new local income.

That's why enforcement would almost inevitably increase - restrictions on arrests imposed by jail space would be removed while new economic incentives would be created for departments to maximize enforcement. That's what happened when Columbia Missouri reduced low-level marijuana penalties from a jailable offense to the equivalent of a traffic ticket

It's important for counties to prioritize spending on jail, court and probation services for criminals who most need supervision
, but not every pothead in town. As former state Rep. Ray Allen has frequently said, Texas should focus on incarcerating people who we're afraid of, not those we're only mad at. Reviving HB 254 would be a good place to start if the goal is to lighten up pressure on jail space without reducing public safety.

Thanks to Andrea for the column idea.


Anonymous said...

Given the change, what difference would it make? If a cop arrests somebody and finds some marijuana on them, he will still charge them with possession, on top of all the other charges he can think of.

If he doesn't charge them for the marijuana, what will he do with it? He's not going to turn it in, and he's not going to report it, and he won't throw it away. He'll steal it. And sell it, or use it, or trade it.

Anonymous said...

The idiotic comments from the previous anonymous commentator not withstanding, I support the change. Being a police officer myself, I see first hand, the waste of time and resources on these "Mickey Mouse" possession charges, as we like to call them. It would be great to seize the stuff as evidence, issue the suspect a ticket for the class C misdemeanor and release him. The fines would be paid to the municipality or J.P. court just like a traffic ticket.

Anonymous said...

Right, seize it all 'as evidence', but turn in how much? There's the problem. Where there's a way, there's a will. Giving the cops a free hand in handling drugs only encourages them to traffic in drugs.

The police in the US needed to get a handle on this as far back as 1875, but the total progress to date is zero. Obviously the cops -- all cops in every department across the country -- are dead set against accountability in drug seizures, as it would hurt their trafficking.

Incidentally, my sympathies do not lie with the drug users. I am furious at police officers who condone drug trafficking by their brother officers. They are worse than the dope dealers themselves.

There is nothing lower than a bent copper.

Anonymous said...

Anoymous asked, "Given the change, what difference would it make?"

The difference is that a Class C misdemeanor is punishable by fine only. Therefore, low-level offenders wouldn't clog the county jails and the counties wouldn't have to pay for them to have a lawyer.

Taylor said...

As usual, great job blogging on this issue. This bill really needs to make it through. The truth is, I don't think it's going to be our law-makers that ignore this piece of legislation in the coming years, it will be the governor's veto that stops it.

Anonymous said...

The operative word is "could." Cops will still have discretion to arrest, so don't get searched an hour before shift change.

I for one like knowing our officers are hanging on to siezed pot for later personal use. Peace, Officers.