Thursday, May 23, 2013

Man bites dog: DAs support reduced drug sentences, but not in Texas

The headline sounded like news from an alternative universe but appears to be (mostly) legit: The Oregon District Attorneys Association came out in support of reducing drug sentences "as a way of curbing the growth of state prisons." Their main concession on drug sentencing was to issue a report (pdf) agreeing that penny-ante pot dealers shouldn't get automatic prison time. The Association agreed with 11 of 18 recommendations by a Governor's task force (see their report [pdf]), but balked at otherwise-consensus suggestions to eliminate certain mandatory minimums, including for some violent offenses. Notably, the main report recommended a more aggressive reduction of current drug and property-offense levels than the Oregon DAs were willing to concede.

It should be mentioned that Oregon operates under a sentencing guideline regimen that's quite different from Texas' sentencing approach. But the two states are united in a desire by their legislatures to limit prison spending growth, which is why the DAs Association made these concessions.

We've seen Texas judges plead with the Legislature to reduce sentencing categories for low-level drug possession but it's hard to imagine our current crop of DAs doing so. OTOH, TDCAA surprised me this session by coming forward with a one-sided open-file discovery deal at a time when the criminal defense bar had walked away from the negotiating table. And some of their more hard-line representatives at the Lege have softened a tad in intensity, for reasons discussed here and here.  Certainly we didn't hear the sort of weeping and gnashing of teeth over closing two prison units (if it sticks, bringing the total shuttered to three) that one would have expected back when, say, Chuck Rosenthal, Bill Hill and John Bradley were at the zenith of their power. Perhaps one day Texas prosecutors will surprise me again and follow the lead of their Oregon brethren on drug sentencing. As TDCAA's Shannon Edmonds replied when I emailed him the link and suggested as much, "Stranger things have happened."


Anonymous said...

Grits, you may be surprised to know that Texas law is already much more lenient than Oregon law on marijuana.

In Oregon, possession of more than one ounce is punishable by up to 10 years in prison and a $250,000 fine.

Possession of up to two ounces in Texas is a Class B misdemeanor punishable by up to 180 days in county jail. Possession of between two to four ounces is a class A misdemeanor punishable by up to a year in the county jail. The maximum fine in either case is $4,000.

The same goes for delivery. In Oregon, the delivery of even the smallest amount of marijuana is a felony punishable by up to 10 years in prison and a $250,000 fine.

Delivery in Texas is one degree higher than the amount possessed. So if you deliver 2 ounces, it is a Class A misdemeanor. If you deliver 4 ounces, it is a state jail felony.

Texas law is already MUCH more liberal than Oregon law when it comes to marijuana possession and delivery. Oregon is sending all of these people to prison, when in Texas they are generally getting time served or a few months probation.

Maybe that's why Texas prosecutors aren't calling for more lenient marijuana laws. And, seriously, when is the last time you heard of some "penny ante" marijuana dealer getting a long sentence in Texas?

Gritsforbreakfast said...

10:05, the post acknowledged that Oregon and Texas sentencing schemes are different. At lower amounts, mandatory minimums make their scheme harsher. At higher quantities or for hard drugs, Texas' laws are arguably harsher, or at least juries and judges have discretion to be MUCH more punitive.

That said, when you look at TX legislation, say, to reduce low-level pot possession to a Class C - a policy that would reduce both incarceration and indigent defense costs for counties - the opposition consistently over the years has come from prosecutors and police unions.

I also agree that in Texas, costs for marijuana enforcement are mostly local and the state-level cost issue isn't as significant as with small-time drug sentences of other stripes. Less than a gram and 1-4 gram cases are charged as felonies when most defendants are basically petty users. That's the area where Texas is most likely to embrace reform over the next few sessions and I'm hoping before it's done, just like on the Michael Morton Act, we'll see prosecutors not only openly supporting the idea but claiming credit for it in the end. Tis the nature of politics.