Sunday, September 02, 2007

Sheriffs more likely than PDs to welcome new arrest discretion

It's interesting to track which Texas counties will implement HB 2391 allowing citations instead of arrests for low-level misdemeanors - so far DAs from some counties with severe jail overcrowding problems have refused to let local police utilize the new tool, while other jurisdictions have welcomed the change.

Most of the controversy arises over provisions to give citations in marijuana possession cases. The Jefferson County Sheriff told the Beaumont Enterprise, "Philosophically, I don't like that it seems to be a step toward decriminalizing the offenses." That canard has been repeated elsewhere and deserves a stern rebuke: This bill doesn't decriminalize anything. Marijuana possession, driving with a suspended license and other named offenses are still against the law. Similarly, running a stop sign hasn't been decriminalized just because you get a ticket instead of arrested for the offense.

In Midland, local officers won't use their discretion in marijuana cases, but can issue citations in the other low-level misdemeanors included in the bill. "I believe if you have any amount of marijuana, you should be placed in jail," said Sheriff Gary Painter. (Ironically, the Midland jail administrator was one of the earliest proponents of the idea of issuing citations for B misdemeanors.)

Such anti-pot bluster masks an inconvenient truth: Lots of Texas officers around the state already use a de facto method for ticketing marijuana possession. Wrote a peace officer on the Texas prosecutor's user forum, "We already do it for small quantities of MJ, and have been for years. We cite for possession of drug paraphernalia if it's contained in some way to facilitate it's use such as in a rolled form." The main difference in that case would be that the person is charged with a Class B marijuna possession instead of a Class C paraphernalia violation. So what's the beef, I keep wondering? Quien sabe?

The Dallas News editorialized yesterday the new law "clears our jails and frees up our police to apprehend people who pose a real threat to society. We're happy (in a drug-free way) because pot smokers never belonged among the likes of rapists and muggers in our jails." No word yet on whether Dallas police will use the new law, but they damn well should given that county's ongoing jail woes.

So far, Travis is the largest county to have announced it will utilize this new authority, and the Austin Police Department is onboard, citing research that each arrest cost taxpayers $2,000 in addition to the officer's time off the street. "We like the ability to have discretion to make decisions," Austin's Assistant Police Chief David Carter said. The Hays County Sheriff and San Marcos PD have also announced plans to use the new discretion.

What's happening in Corsicana may wind up being a common outcome in the short term: The local sheriff's department will allow deputies to use their new discretion, while the local police department will not. Similarly, the Palo Pinto County Sheriff's deputies will use this discretion, but police in Mineral Wells, the county seat, will not.

I predict Sheriffs generally will adopt policies to use the new law much faster than police departments. The reason: The Sheriff's Office runs the jail, so they care more about overcrowding issues - local police departments and prosecutors frequently just figure that's somebody else's problem.
Like the taxpayers'.

UPDATE: Lamar County law enforcement including the Paris Police Department will not utilize the new citation authority, at least for marijuana offenses.


Anonymous said...

That's pretty sad if the local DAs won't work with the Sheriffs on 2391. This was actually a pretty popular idea at the Legislature, unanimous in the House and only Dan Patrick opposed it in the Senate. If I were in the Tx Legislature I'd get tired of the DAs refusing to respect the laws I passed. Maybe they can just make it mandatory next time.

Anonymous said...

The new ticket is said to require the defendant to appear in some court or other within 24 hours for magistration on a class b misdemeanor like pot.

Guess what Justice and Municipal Courts! You now have walk-ins for magistration! Get ready to spend 10 minutes of judge-time and 30 minutes of staff time every single time some hapless pothead comes in to be magistrated. What's that? You already have plenty to do? Well, gee. I guess you'll just have to send these shiftless criminals to the County Court at Law for magistration. I'm sure they're not too busy for maybe 10 or 20 or 75 potheads a day to come in with tears in their eyes because they've been turned away by the JP. Why you can just whip out the file at the County Clerk's office and get to magistratin". What? The County Clerk has never heard of the case? Because it only hears about cases from the JP? Well, I'm sure they have time and funds to create a new hybrid system for administering these tickets. It's probably already outlined by the legislation creating the new, untried criminal procedure of walk-in magistration. No? Shocking! Well, one more daily docket of 10 or 20 or 75 cases won't be so bad.

Well, at least the courts won't have their dockets clogged up with every single one of these pot cases set for jury trial, just because there's no offense report for the officer to refer to on the stand to refresh his memory. I'm sure the defense bar will advise their clients to plead guilty in light of the certain knowledge that the officer will have made hundreds if not thousands of arrests between this ticket and the jury trial 18 months later. Defense lawyers won't want to expolit the unrecorded memory of the officer a year and a half later. Because defense lawyers wouldn't want to be a party to embarrassing a police officer.

Well, at least the lege isn't robbing Peter to pay Paul or anything. But they have found a way to have pot cases dismissed by the metric ton. This is nothing less than de-criminalization, but the bastards don't realize it yet.

Also, won't it be fun to see who gets arrested and who gets a ticket?

Kelly Higgins
Concerned Citizen

Gritsforbreakfast said...

Kelly, I don't know of any department doing this where the courts haven't signed off on it and worked out a system up front. I also don't think the 24-hour turnaround is accurate.

You may be right some criminal defense lawyers will have an easier time gaming the system, but if the officer logged the evidence it shouldn't be a big problem, I'd think. I'm not sure I think the sky will fall if this is implemented as your comments imply. Maybe, but right now I don't see it. best,