Harris judges reduce number of needlessly jailed drug probationers

Giving credit where it's due, it appears judges in Harris County (Houston) have begun changing their collective sentencing practices regarding first offense less-than-a-gram drug cases, going by their Nov. 1 jail population data reported (pdf) to the Texas Commission on Jail Standards.

Why do I say that? Here's the backstory: In 2003, the GOP took over the Texas Legislature for the first time since Reconstruction and Speaker Tom Craddick appointed Ray Allen (since retired) to chair the House Corrections Committee. The state faced a severe budget crisis (though not as severe as today), so Allen filed HB 2668 to reduce penalties for less-than-a-gram drug cases from a state jail felony to a Class A misdemeanor, a suggestion I've advocated here on Grits more than once. The legislative process, however, is designed to force compromise. In the end, the bill kept the state-jail felony level but mandated probation for less-than-a-gram cases on the first offense, a move that diverted about 4,000 low-level offenders per year from Texas state jails.

In Harris County, though, then-District Attorney Chuck Rosenthal had opposed the legislation and his office successfully pushed for judges to exercise their discretion to require incarceration in the county jail up to six months as a condition of felony probation, which most Harris County judges began to do routinely, and to my knowledge, uniquely. This caused the jail to swell with probationers who a) previously would have been incarcerated by the state and b) could have been released. I've been grumpy about this for seven years since the bill's implementation. A lot of people worked hard to pass that legislation, and the effort to reduce prison overcrowding was never intended to increase local jail overcrowding. That was the choice of local elected officials.

In any event, whether new DA Pat Lykos has quit asking for the extra jail time as frequently or judges have smartened up and started refusing it, I cannot say, but as of Nov. 1 there were just 350 inmates in the Harris County jail who'd been convicted of state jail felonies and were serving time as a condition of probation. This time last year, Harris County had 1,181 such inmates in the jail, which means we've witnessed a 70.4% decrease in that category of prisoner in a single year. That takes a lot of needless pressure off the jail at the margins and I'm quite glad to see it. My hunch from these data is that several specific judges have changed their practices and a few holdouts account for that remaining 30%. I'd love to see judge-by-judge data to know which courts are still needlessly sending these probationers to jail and which have stopped.

Combined with the DA's decision to prosecute crack paraphernalia under the paraphernalia laws like all other large jurisdictions instead of as state jail felony drug possession - another Rosenthal-era policy which required sending pipes to overworked (and scandal-ridden) labs to document trace residue - it's easy to see why the Harris jail population has experienced a welcome, though not-yet sufficient decline in the last year. The folks who make decisions that created the overcrowding crisis have begun, ever so haltingly, to ease their foot off the collective pedal. There's still much more they can do.