Harris DA's drug-policy change will improve equity, jail crowding

Pretty big news out of Houston today on the drug-policy front. Harris County DA Pat Lykos announced a change in her office's charging policy on low-level drug offenses that will put Houston in line with other Texas jurisdictions, but has the police union seething ("DA's crack pipe policy stirs storm," Dec. 9):

Starting next year, the Harris County District Attorney's Office no longer will file state jail felony charges against suspects found with only a trace — less than a hundreth of a gram — of illegal drugs, District Attorney Pat Lykos said Tuesday.

Instead, people found with crack pipes with nothing more than residue inside or other drug paraphernalia, would face a ticket for a class C misdemeanor, which carries a maximum fine of $500.

Not surprisingly, the pending change was hailed by defense lawyers, but criticized by police officers.

“It ties the hands of the officers who are making crack pipe cases against burglars and thieves,” said Gary Blankinship, president of the Houston Police Officers' Union. “A crack pipe is not used for anything but smoking crack by a crack head. Crack heads, by and large, are also thieves and burglars. They're out there committing crimes.” ...

Blankinship said the district attorney's office is trying to restrict the volume of cases rather than deal with them.

“When they get to a certain caseload, we're supposed to stop?” he asked. “Stop arresting people who are violating the law? How much sense does that make?”

Lykos said there were several reasons to change the policy, including the inability of defense experts to re-test drug residue that is destroyed when it is analyzed. To be tested twice, there has to be more than a hundredth of a gram, she said. ...

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.”

I know one group who will be particularly pleased by this welcome news: Judge Michael McSpadden and other Harris County criminal district judges who've been agitating to reduce the less-than-a-gram caseload in felony courts. “Sixteen of us feel that it’s just unfair to be convicted for a residue amount and be labeled a felon, which changes your whole life,” McSpadden told the Houston Chronicle earlier this year. This policy will contribute concretely to that goal.

Indeed, Harris County accounts for such a large proportion of less-than-a-gram cases in Texas, this decision could even help out the state in the medium-term with managing state-jail population growth.

Really, despite the police union's opposition, this is a no-brainer: Even Murray Newman thinks it's a good idea and he can't agree with Pat Lykos on the weather.

Kudos to Lykos for pulling the trigger on a decision that's an easy call from a policy perspective but a potential political headache, especially with the union. Given scarce resources, though, it makes little sense to waste crime-lab personnel and felony-court dockets on these penny-ante cases - particularly since Harris is the only big county to charge paraphernalia that way. This decision was long overdue. Other jurisdictions do fine actually using Texas' Class C paraphernalia statute; so will they.

Just to have said so: If the DA wanted to further reduce the jail population, she could direct her office to stop seeking jail time as a probation "condition" on the first offense in these less-than-a-gram cases - a reactionary policy instituted by per predecessor. Harris is the only county in Texas to routinely send first-offense probationers to county jail for up to six months for less-than-a-gram drug possession (including the paraphernalia cases which will now be handled as misdemeanors). The Legislature in 2005 directed judges to give these cases probation on the first offense, however Harris County from the beginning took the defiant stance of routinely jailing them instead. As of November 1, according to data reported (pdf) to the Commission on Jail Standards, Harris County had 1,181 convicted state-jail felons housed in the county jail; as of that same date (pdf), Harris had 1,212 inmates housed out of county.

So those two changes on less-than-a-gram cases combined would actually go most of the way toward ending Harris' reliance on out-of-county contract beds in the relatively near future. That's why I consider the issue of jail overcrowding in Harris County more a question of political will than demographic necessity: Pat Lykos demonstrated leadership in this decision and she deserves credit for it.

UPDATE: Already backtracking? Under pressure from Houston PD, Lykos now says she'll reevaluate the new policy in six months.