Harris DA: Delay pleas on drug cases till lab results are in

Reacting to numerous drug cases where defendants pled guilty to get out of jail and crime labs later returned results saying they'd never been in possession of a controlled substance, overturning their convictions based on "actual innocence," Harris County DA Devon Anderson recently announced a new policy in which prosecutors can no longer agree to a plea in such cases unless final results are back from the crime lab. The only exception is that "a defendant housed in jail [may] receive a term of community supervision with no additional jail confinement as a condition of the community supervision." Here are three, notable discussions of the new approach:

• Eric Dexheimer, Austin Statesman, "Investigation spurs Harris County to change drug testing policy"
• Murray Newman, Life at the Harris County Courthouse, "An Unworkable Drug Policy"
• TDCAA User Forum, "Drug Lab Delay Question"

There are a lot of moving parts to consider so I understand Murray Newman's pessimistic view that the policy is unworkable. If lots of low-level drug defendants fill up the jail because they can't make bond (and Harris judges notoriously issue few personal bonds), or if court dockets expand significantly beyond their already very high levels, it's easy to see how there may be pressure on the DA to do things differently.

If local judges would agree to issue personal bonds to these defendants while they await crime lab results, that would make this policy work a lot more smoothly. Without that sort of tacit cooperation, though, it's hard to understand how the approach is sustainable in the long term.

OTOH, the situation described recently by former Texas Court of Criminal Appeals Judge Cathy Cochran surrounding these drug-possession innocence cases is equally untenable. She told Texas Monthly:

speaking of keeping people out of jail, I really think the law needs some help with pre-trial bail, letting people out before the case is sentenced. We’ve had a lot of cases recently where we’ve granted relief because here’s somebody arrested for possession of cocaine or meth or whatever and they plead guilty because they’ve got a job or a family or they just can’t stay in jail for the next six months before trial; they don’t have enough money to make bail, but they plead guilty. Then sure enough six months later the analysis on the drugs comes back and guess what? It’s not a drug.  

There aren't a lot of good answers here. Our friends at the prosecutors' association have suggested boosting crime lab funding, but throwing money at the problem won't change the structural dysfunction created fundamentally by high case volumes and unreasonable bail policies.