The assembly line keeps on moving

I caught an interesting piece on All Things Considered this afternoon about sentencing reform. Over the last couple of decades tough-on-crime politicians pushed for harsher sentences for non-violent offenders. As a result of the misguided war on drugs, jails around the country have been packed to the gills.

As a result of overcrowding, conservative politicians have been trying to find ways to reduce jail politicians. Restrictions on parole have been eased. Mandatory minimum sentences have been eliminated. Counties are giving more credit for every day an inmate sits in jail.

The problem is the result of simple-minded "solutions" to problems that didn't exist. People sitting in jail and prison for possession of drugs doesn't solve any problem - it only creates more. Addicts and users need treatment, not jail or prison. Incarceration should be a last resort for offenders, not a first option.

Instead we use our jail and prison systems to segregate the population. While we know that whites, blacks and Hispanics all use drugs in pretty much the same proportion, it's the non-white folks that end up with long sentences behind bars. While well-to-do whites are snorting cocaine in clubs and at parties, black and Hispanic youth are being busted for possession of crack.

Law enforcement officials and prosecutors have fought efforts to reduce penalties for possession tooth and nail. They continue to fight common sense measures to reduce jail and prison populations because they are afraid of giving up the leverage they have over those charged with possession. It's far easier to obtain a guilty plea when a defendant has a choice of a few months in the county jail or a longer stretch in prison.

And who cares about the aftermath of a long prison sentence. Neither the judge, nor the prosecutor nor the arresting officer are going to have to deal with the problems a family faces when the breadwinner is taken away in chains. But you can bet that someone will have to deal with the consequences down the road.

We all know that it's far easier to treat the symptoms of a problem that to address the actual problem itself. Why bother trying to get to the heart of why so many young people use drugs when you can just bring them before a judge on the chain and coerce plea after plea?

The cost of providing treatment for those addicted to drugs would be far less than the amount we currently pay to house them in jails and prisons. Wouldn't our money be better spent on trying to help people get off drugs rather than warehousing them in correctional facilities? Wouldn't it be better for them to be working in productive jobs rather than sitting behind bars? If our wingnut politicians are so concerned about "family values," wouldn't it be better to keep families together rather than tearing them apart?

But then, as I've said many times before, those folks accused of crimes, and those serving time behind bars, don't have a powerful political lobby. Politicians aren't looking for their votes. And that's the calculus that drives policy -- what can I do today that will increase the number of votes I can get and reduce the number of votes my opponent can get?

In the meantime the wheels will keep on turning and nothing will change.

The times they are a-changing

I could start off with a rant about why taxpayers in Texas are being asked to pay for a security detail for Gov. Rick Perry while he rubs shoulders with the rich and powerful and the World Economic Forum in Davos, Switzerland. But I'm in a good mood so I won't sweat the Guv hanging out at the uber-wealthy's version of Woodstock.

And, speaking of Woodstock, Gov. Goodhair sprung an interesting surprise on reporters when asked about his views on the legalization of marijuana. While emphasizing his opposition to legalizing the weed, Gov. Perry did express his support for decriminalizing grass.

The Fair-Haired One has embraced the use of specialty drug courts as opposed to regular courts. Now I have made my opposition to drug courts well known and I'll repeat it here -- courts are for resolving legal issues, not for doling out medical treatment. Addiction is a public health issue, not a criminal issue; and until we treat it as such, we will continue to tread water.

Aside from his support of drug courts, for once I'm on board with Gov. Perry. There are far too many folks arrested and dragged into court for possession of small amounts of marijuana. Even worse are the far-ranging consequences for a conviction -- public housing residents can be evicted and college students will be deemed ineligible for federally-backed student loans.

Currently possession of less than 2 ounces of marijuana is a Class B misdemeanor carrying a maximum punishment of six months in jail. If Gov. Perry is serious about decriminalizing marijuana then we need to knock possession of less than 2 ounces to a Class C misdemeanor (the equivalent of a traffic ticket) which is a fine-only offense that doesn't appear on one's criminal record. Then we need to knock down each level of offense one step. In fact, we should seriously consider doing that on every drug possession offense right now.

Gov. Perry understands the economic cost of carrying out a draconian drug war. He sees that county jails are filling up with non-violent minor drug offenders. Now it's time to see if the rest of Perry's Republican posse is willing to fall in line and amend the drug laws in the next legislative session.

Now contrast Gov. Perry's position with that of Devon Anderson, the unelected Harris County District Attorney whose blowhard response to President Obama's comments about marijuana sounds a lot like the nonsense in Reefer Madness.

"Marijuana is creating deadly situations right here in Harris County. I welcome the President to come to Houston to review the same capital murder cases I did just last week that were the result of marijuana drug deals. Maybe then he will see that the most effective way to keep our law-abiding citizens safe is to obey all laws that our legislators put on the books at our state capitol. 

“I am acutely aware of the high price society pays for the misuse of alcohol. This is not a debate about whether alcohol or marijuana is more dangerous. The President’s comments notwithstanding, marijuana is illegal under the Texas penal code, and we vigorously prosecute drug possession and alcohol-related offenses in Harris County.”

But what else should we expect from Ms. Anderson? The budget for her office depends on the number of cases being filed. She has no time to worry about the consequences of prosecuting folks for possession of minor amounts of marijuana while she's out trying to convince folks to vote for her this fall.

After all, it's much easier to demagogue than make well-reasoned arguments.

The unintended consequences of a campaign pledge

Back when the late Mike Anderson was running for DA against incumbent Pat Lykos he attacked her over and over again for her decision not to try so-called trace cases. Under the Lykos administration, if someone were arrested for possessing less than .01 grams of cocaine, the case was either dismissed or the defendant was offered a plea to a paraphernalia case.

There were a multitude of reasons for the policy. First, if there was less than .01 grams of residue, there wasn't enough for both the state and the defense to test the sample. Second, during her 2008 campaign, Ms. Lykos said the criminal (in)justice system couldn't cure every problem and that some folks were better off seeking treatment for their addictions. Third, the Harris County Jail was full to the gills and the county was having to lease jail space in other counties in Texas as well as in Louisiana. 

The situation was untenable. Not that Chuck Rosenthal and his team of true believers gave a second thought to the consequences of their actions.

Well Ms. Lykos wasn't part of the good ol' boy network so she had to go. Mike Anderson took up the banner of Holmes worship and pledged to undo everything that Ms. Lykos had done in office. One of his promises was to start prosecuting trace cases as felonies once again. The police and true believers thought the rapture had come and Mr. Anderson was swept into office.

Once there Mr. Anderson began the process of changing office policy. No longer would the Harris County District Attorney's Office go soft on those wrongdoers who had less than .01 grams of drug residue on their person. Nope. If you give them a break, the next thing you know someone else is going to want some leniency on some other crime. Damn that slippery slope!

Under Mike Anderson's watch, trace cases were prosecuted as felonies but defendants were offered so-called 12.44a sentences. That designation refers to a provision in the penal code that allows the court to assess misdemeanor punishment on state jail felony convictions.

And so, predictably, the inmate population in the Harris County Jail began to creep higher toward full capacity. Someone was going to have to to do something quick. The voters had already nixed the idea of issuing bonds to build a fourth jail downtown. County commissioners weren't keen on the idea of spending money to house inmates in other counties.

Interim District Attorney Devon Anderson, the widow of Mike Anderson, acknowledges there is a problem -- something that Mr. Anderson never did. Of course she told the Criminal Justice Coordinating Council that she wasn't worried about filing felony charges against folks possessing less than .01 grams of cocaine. She, on the other hand, was worried about the number of defendants who were punished under Section 12.44a of the Penal Code. She said she was concerned about the number of first time offenders who were now walking around with felony drug convictions.

She said she preferred treatment to incarceration. But she never said she was opposed to prosecuting the cases as felonies. And there's the disconnect.

If you charge folks with a felony and they can't post bond, the attorneys appointed to plead them out are going to try either to get the charges reduced to misdemeanors or, at worst, to get the prosecutor to offer county time for a felony conviction under 12.44a. Folks who are out on bond for a trace case are unlikely to go to prison or jail in exchange for a plea (though there are exceptions). They'll take their felony deferred or probation and walk on out of the courthouse.

Such pleas are rarely offered to someone sitting in the holdover - unless they are willing to put up a fight on their case. Besides, the folks who can't post bond tend to have backgrounds and live in circumstances that make them bad risks for probation.

Ms. Anderson points to her background as a drug court judge (before getting booted out of office in 2008) - but y'all already know my opinion of drug courts. The criminal (in)justice system does a very poor job of reducing addiction. Those who suffer from addiction are going to fall off the tracks from time-to-time on their way to recovery. When they do suffer a relapse, treatment and counseling - not prosecution - is the answer. 

Our courts operate in an adversarial environment. The theory is that the truth (or something vaguely resembling it) will emerge though two parties telling competing stories. When one side rolls over and plays dead - or, in the parlance of the specialty courts, works as part of a team - the adversarial system doesn't work as planned and the defendant is always the one getting jobbed.

The answer to reducing the county's jail population isn't to prosecute trace cases, the answer is to make treatment available for those who want it - regardless of their ability to pay. Drug addiction is a public health issue - not a criminal issue - and until we begin to treat it as such, we will never make any headway in reducing the problem.

Like we don't have enough laws on the books

The other day my eye was caught by a Grits for Breakfast post about the number of bills proposed this legislative session that would either create new criminal offenses or enhance penalties for existing crimes.

At some point we need to have a little bit of sanity in Austin. We don't need a bevy of new criminal offenses. What we need is some serious analysis of what's now on the books. We need to ask our legislators whether our existing penal code makes sense - and whether we can afford to keep doing what we're doing.

At the rate we're going there is going to come a day when everyone on this state is either a convicted criminal or on paper. Hell, we might need to start charging fetuses with something or another so that they will be under the government's thumb from the get-go.

Of course it's better politics to say "there ought to be a law..." whenever something bad happens to someone else - unless that law would, in some way, restrict the ability of a god-fearing Texan to load up on as many guns and rifles as he can fit in his survival bunker and as much ammo as he can fit in his tote from the Container Store. No one gets elected because they got rid of an unnecessary provision of the penal code - hell, it's in there for a reason, ain't it?

We need to take a serious look at our drug laws. What we're doing isn't working - and I don't think anyone would disagree. The first thing I would do is reduce - by one degree - the punishment for all drug possession offenses. It makes no sense to charge a person with a state jail felony for possessing less than a sugar packet-full of cocaine. It makes little sense to arrest a kid for possessing less than two ounces of marijuana.

Possession of less than two ounces of marijuana should be a Class C misdemeanor fine-only offense. In many counties if you're charged with possession of marijuana you can negotiate a plea to a charge of possession of drug paraphernalia, a fine-only offense, instead. Why bother with the charade any longer?

At some point I would hope we realize that the criminal (in)justice system is not designed to handle public health issues like addiction. And I don't care how many "drug courts" you come up with - addicts need treatment and, if that treatment is going to be successful, it needs to be voluntary. We don't need the courts waiting to pounce on the recovering addict who falls off the wagon now and then. He or she needs encouragement - not a seat on a hard wooden pew or a bed in the jail.

Instead of increasing the number of crimes and jacking up sentences, we need to spend money on drug treatment and rehabilitation programs so that the addicts caught up in our criminal (in)justice system - mostly lower income blacks and Latinos - don't end up in a revolving door to the jail.

But then, actually addressing a problem isn't nearly as sexy for a legislator as standing in front of a microphone and telling the voters that "there ought to be a law..."

So what's Plan B?

Former Harris County District Attorney Pat Lykos angered many in the criminal (in)justice establishment (including my colleague Murray Newman) when she announced that her office would not prosecute felony drug cases when the drugs seized weighed less than .01 grams.

Her decision not to prosecute these so-called "trace cases" was based on her belief that the defense should have the opportunity to have the substance re-tested by an independent lab. If the amount of dope was under .01 grams, there wasn't enough to permit a second test.

She also made the decision to combat overcrowding in the Harris County Jail. Many of these cases had to do with crack cocaine or methamphetamine residue found in a pipe. If the defendant couldn't afford to post bail, he or she would sit in the county jail until their case was resolved.

The policy also took into account the inequity of charging folks with state jail felonies for possessing a less than usable amount of dope.

Well, those days are gone now.

As expected, the new District Attorney, Mike Anderson, announced on Thursday that he was taking Ms. Lykos' policy, wadding it up and tossing it in the trash. No more pussy-footing around. No more coddling these little dopeheads. Nope. That won't cut in in the Anderson administration.

Residue in that pipe? You're going down hard. Felony conviction. Probation if you're lucky.

It makes you wonder just what Mike Anderson has been smoking. People carrying around glass pipes with dope residue aren't peddling crack and crystal. They are addicts. They have a problem. Arresting them and tossing them in jail isn't going to solve it. Treating it as a criminal problem won't solve it. Addiction is a public health issue and needs to be treated as such.

Oh, Mr. Anderson said those folks need treatment and he could see them being placed on probation where they can be monitored.

Well, if you're really concerned about their well-being, Mr. Anderson, you need to throw away the criminal (in)justice model of treating drug addiction and let the medical professionals deal with it. Using the stick of prison to force addicts to eat the carrot of treatment hasn't solved the problem and won't solve it.

State District Judge Michael McSpadden, hardly who you would consider a flaming liberal, thinks it's nuts to prosecute those cases as felonies. You might want to listen to what he has to say, Mr. Anderson. You might learn a thing or two along the way.

Mike Anderson's plan will result in more people being tagged with felony convictions and in a jail that will be busting at the seams. All those new detainees are going to have to be housed someplace and that means more contracts with other counties to house our inmates. Or maybe yet another referendum on building a new jail.

Ms. Lykos may have made some serious missteps in her four years in charge of the DA's Office, but her policy on trace cases was an instance in which she got it right. Now we'll just have to wait and see how long it takes for Mike Anderson to realize that, too.

One night in Hudspeth County

Rusty Fleming wants all you budding country and rock stars to know that they don't much care for drugs down in the Valley in Hudspeth County.

Willie Nelson and Snoop Dog found that out. And now Fiona Apple knows.

But this isn't about celebs with pot in their tour buses being nabbed by those eagle-eyed officers of the Hudspeth County Sheriff's Office. Nope, this is about that little thing we call the presumption of innocence.

Fiona Apple was performing in Houston the other night. While on stage she let the audience know what she thought of the hospitality she was shown down in Hudspeth County. Let's just say she wasn't altogether impressed with the accommodations.

That's where our friend, Mr. Fleming, comes in. He's not the sheriff. He's not the officer who took down the once famous pop star. Mr. Fleming is the public information officer for the department. He's a glorified P.R. man.

And he wasn't too happy with what Ms. Apple had to say the other night. He was so out of sorts he penned an e-mail to express his feelings.

First, Honey, I’m already more famous than you, I don't need your help. However, it would appear that you need mine.... 

Two weeks ago nobody in the country cared about what you had to say, -- now that you’ve been arrested it appears your entire career has been jump-started. Don’t worry Sweetie, I won't bill you... 

Next, have you ever heard of Snoop, Willie or Armand Hammer? Maybe if you would read something besides your own press releases, you would have known BEFORE you got here, that if you come to Texas with dope, the cops will take your DOPE away and put YOU in jail 

Even though you and I only met briefly in the hallway, I don't know you but I'm sure you're an awesome and talented young woman and even though I'm not a fan of yours, I am sure there are thousands of them out there, and I’m sure that they would just as soon you get this all behind you and let you go back to what you do best—so my last piece of advice is simple "just shut-up and sing." 

Sincerely
Rusty Fleming

Not so fast there, Mr. Fleming. Yes, Ms. Apple was arrested and charged with possession of marijuana (well, technically marihuana, since no one in the legislature knows how to spell) and hashish. Yes, the dope was found on her tour bus. But that's about all we know.

Ms. Apple is innocent unless the state can prove her guilt beyond all reasonable doubt. There are plenty of folks arrested for possession of marijuana every day in Texas that see their cases dismissed or hear two word verdicts from juries.

Besides, Mr. Fleming, the last time I checked we have this little thing called the First Amendment that protects our right to say anything we damn well please - no matter how much it pisses off those in authority. And so, if Ms. Apple wants to get up on stage every night and tell the audience what an awful experience she had in Hudspeth County, good for her.

Of course the one thing no one's talking about is the junk science surrounding drug-sniffing dogs. Their handlers will claim that the dog will alert them by sitting, barking, rolling, jumping and anything else a dog does on a regular basis. We all know that the handlers can make those dogs do whatever they want them to.

Ms. Apple's tour bus was stopped at a border crossing and the dogs were brought out to sniff around it. It was a drug dog's supposed "hit" that got the police entre into the bus where they found the goodies. And that raises another issue about the continued erosion of the Fourth Amendment.

Let's see, the police can't use a thermal imaging device to peek inside a home to see if someone's growing marijuana with the aid of heat lamps but they can run a dog around the outside of your car to see if the dog can "smell" some wacky tobacky. And when that dog scratches his back or licks his balls we'll call it probable cause to search the vehicle.

Hmm. Tour bus for a rock star? Do you supposed that there just might be something illicit in that coach? We'll just call out the dog and tug on his collar a bit. That ought to do it. No judge down here is going to question it.

Hudspeth County is but a microcosm of what's wrong with our criminal (in)justice system. And, just so no one thinks I'm picking on a rural county in the Valley - what happened down there the other day happens in every county across the country on a regular basis.

Just another day at the office for Michael Reichert

I haven't yet decided whether to laugh at this video or to throw sharp objects at my monitor. Radley Balko posted this video on his blog at the Huffington Post of a couple of guys on their way home to Ohio after attending a Star Trek convention in St. Louis. Their trip home took them through the town of Collinsville, Illinois  where they had the pleasure of meeting Officer Michael Reichert.



Officer Reichert got a little itch up his ass that Terrence Huff and his passenger were carrying drugs in their car. After stopping Mr. Huff for allegedly weaving he proceeded to detain the two for far longer than was necessary for a routine traffic stop. Based on his passenger's "nervousness," Officer Reichert decided that Mr. Huff was carrying something illegal.

Officer Reichert continually tries to bait Mr. Huff into coughing up marijuana by telling him he wasn't interested in any drugs that were for "personal use." Of course you know as well as I do that Officer Reichert wasn't about to let Mr. Huff continue on through the Land of Lincoln with any dope in the car.

Unfortunately, what happened to Mr. Huff isn't an outlier. This goes on every day across this country. They get away with it because it's hard to prove a negative. The police manufacture probable cause to stop motorists around the clock. The most common in Houston is not using a turn signal when changing lanes or turning. Nevermind the fact that few drivers use their turn signals during the day; at 2am after the bars close, not signaling that lane change is a ticket to the jailhouse.

In order to justify tossing a car, an officer will say one or more occupants appeared nervous or that the stories of where they were going didn't match up. Officers will claim reasonable suspicion because a motorist is carrying a large amount of cash - or not carrying any cash. Somehow driving on a US highway gives an officer reason to believe someone is carrying contraband.

And never forget the ways in which officers can manipulate dogs to signal whatever it is they want. I once had an officer claim that his drug dog would sit, bark, scratch, lay down or jump whenever he sensed drugs. The last time I checked, Sgt. Bruss, that just about encompasses everything a dog does - whether it detects something or not.

For those of y'all who still cling to the naive belief that the police don't lie (that is, judges and prosecutors), just listen to what Officer Reichert says and watch what he does. I guarantee you've seen it before. Maybe next time you'll look at it a little differently.

The cost of thinking outside the box

I'm no fan of Pat Lykos.

Her job is to infringe upon the rights of the citizenry as zealously as the courts will allow. She is part of the mechanism by which the state seeks to keep folks under its thumb.

But there are a couple of areas in which Ms. Lykos got it right.

Now, with apologies to my colleague, Murray Newman, I don't mind the chaos emanating from the 6th floor of the Criminal (In)justice Center. Chaos in the prosecutor's office is a good thing for the citizens of Harris County. So long as prosecutors are fighting with one another, with the District Attorney and with law enforcement, they aren't waging total war against our clients.

Ms. Lykos was right when she changed her office's policy on drug residue cases. Let's face it, the war on drugs has been a colossal failure (it makes Vietnam seem like a good idea). Even State District Judge Michael McSpadden acknowledges its failure.

"No one respects law enforcement more than I do, but they're wrong about this. I want them out there going after the career criminals, the sex offenders, the people who pose a real threat to our society, and not someone who has a residue amount of drugs." - State District Judge Michael McSpadden

There are far too many folks in the Harris County Jail on possession cases. There are far too many folks in the penitentiary on possession cases. Most of these people are addicts. Locking them up in jail does no one any good. The addicts aren't receiving the treatment they need and there's no room in the inn for those who really need to be put away.

No, local law enforcement doesn't like the policy. They want to go out and arrest everyone they possibly can, lock 'em up and forget about them. That's fine and dandy - but where are you going to put them? Maybe it's the fear that with fewer drug arrest, jobs and overtime might vanish. Maybe it's the fear that the public is fed up with the overcriminalization of American life and desires a bit of sanity.

Ms. Lykos also understands that the stigma associated with a DWI conviction is a little bit out of whack when compared to the consequences befalling those convicted of some violent crimes. DIVERT may have been a good concept but the execution is poor (not to mention illegal). The reason given by the DA's Office for DIVERT is so that folks arrested for driving while intoxicated can get treatment to help prevent them from doing it again. The reality is that Ms. Lykos thought that too many people were "getting off" with time served and a fine. What better way to force them into probation than to make the minimum sentence 30 days in jail?

Need I even mention that the judges who signed off on the program are violating their constitutional duty to consider the full range of punishment in a DWI case? But, then, most of those on the bench are part of the DA's "trial court" division.

Sometimes change comes from the most unexpected agents. Just as it took Nixon to open China, maybe it took Lykos to bring some sense to drug prosecutions.

Creative thinking in public education?

Possession means actual care, custody, control of management. 

-- Texas Controlled Substances Act Sec. 481.002(38)

Possession is different than use. Possession is different that "under the influence."

To possess an item is to exert some degree of control over a tangible object. The tangible object, such as a controlled substance, is necessary to prove possession. After all, you can't have control over something that no longer exists.

For instance, one may be in possession of marijuana at the time he is smoking it. But, as he smokes the marijuana, the drug breaks down in various components and metabolites in his body. At the same time, the marijuana itself is destroyed by fire. After smoking marijuana one may be "under the influence" of it. One may even be intoxicated by smoking the marijuana, though that would be difficult to prove without a test showing the concentration of the metabolites in the body and expert medical testimony regarding the effects of marijuana in the concentration found in the body.

The State of Texas defines marijuana (please, someone, explain to our legislators that no one else spells marijuana with an h) as "the plant Cannibis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture or preparation of that plant or its seeds."

Nowhere in the definition of the hippy lettuce does the state allege that the metabolites left in the body after ingesting marijuana is marijuana.

Texas defines controlled substance is "a substance, including a drug, an adulterant and a dilutant listed in [the Controlled Substance Act]."

Once a person absorbs a controlled substance, Xanax, for instance, that substance is broken down by the body into various metabolites - a term not used in the definition of controlled substance. One can be intoxicated if he ingests a controlled substance (or marijuana) and loses the normal use of his mental or physical faculties as a result. However, one is not in possession of the controlled substance once it has been ingested - because the controlled substance itself no longer exists.

In fact, you can make the argument that once someone is "under the influence" of a drug, that the drug is in control of the person and not the other way around. How else could one be "under the influence?"

But try explaining that simple concept to a school administrator who declares that being under the influence of a drug on a school campus is the same thing as possessing the drug on a school campus. I recently had a school administrator tell me, with a straight face, that, per district policy, that if a student is under the influence of Xanax, for instance, that student is considered to be in possession of the drug; and, since possession of Xanax is a state jail felony, that the student under the influence of Xanax is subject to expulsion because their conduct amounted to a felony.

Huh?

I have yet to find a statute in the Texas Penal Code or in the Health and Safety Code that makes it a felony to be under the influence of Xanax (unless, of course, the person was driving a vehicle with a child or was in an accident that resulted in serious bodily injury or death to another person).

Just something to think about.

Stuffed to the gills

Forget about all that 6th Amendment nonsense about the right to counsel, Harris County has decided that's not nearly so important as cramming as many pre-trial detainees into the Harris County Jail in order to coerce guilty pleas.

From: Armand, Stephanie (DCA)
Sent: Friday, May 20, 2011 2:50 PM
To: DC Criminal Coordinators (DCA)
Cc: DeLeon, Sisto (HCSO)
Subject: Contractual Logistics Transfers
Sent: Friday, May 20, 2011 2:50 PMTo: DC Criminal Coordinators (DCA)Cc: DeLeon, Sisto (HCSO)Subject: Contractual Logistics Transfers 

Good afternoon,   Due to jail overcrowding, pre-trial inmates with a future date of 35 days or over are transferred to outlying jail facilities in Newton and LaSalle County.      The inmates will be returned to Harris County Jail, two weeks prior to the setting in the court.     Video Conferences are available at both of these facilities to allow the defense attorney to visit with his/her client.         Defense attorneys may contact one of the following individuals to arrange the video conference: Lt. J.D. Clay @ 713-755-8434 or 713-755-8425 Sgts. C.D. Minshew or F. Dlouhy at 713-755-8420 Or Deputy Station at 713-755-1188 or 713-755-1189   Please convey this contact information to the defense attorneys.    This information is also available on the Coordinator’s Resource Webpage under Contractual Logistics Transfer Procedures.       Thank you in advance for your assistance in this matter.
 
Stephanie Armand Business Process Manager Administrative Offices of the District Courts 713-755-5704

Keep in mind that we aren't talking about people who have been found guilty of anything. These are the folks that are supposedly innocent unless proven guilty. These are the folks who are unable to post bond. These are the folks that most people don't give a rat's ass about.

But they're being transported all over the state because Harris County refuses to do anything to address the underlying problem of jail overcrowding -- punitive bonds.

And then there's HB 1173 that would allow counties with populations over 3 million people to extend the time they can hold a suspect without a probable cause hearing from 24 to 36 hours. That's just what we need here in Houston -- there's not enough room at the inn as it is and now we're going to allow the state to hold a citizen in jail an additional 12 hours.

Of course, if it's a bad bill related to criminal justice you know it must be sponsored by Sen. Joan Huffman. Interestingly enough, the fiscal analysis indicates that there should be no additional cost to the state (understood) or to local government (?). Just how many pretrial detainees are being transferred out of the county to make room for the new blood over on Baker Street?

Here's an idea for our legislators in Austin -- how about mandating the issuance of citations for Class B possession of marijuana cases? Confiscate the contraband, issue a citation with a promise to appear and go on about your business. It's going to be cheaper than shipping detainees out of the county and it might just allow Harris County to take care of its business when it comes to holding probable cause hearings within 24 hours.

Slow and steady wins the race

I recently handled a dope case in which the police claimed to have found one rock of cocaine in his vehicle. The officer, after cuffing my client and placing him in the back of his patrol car, conducted a warrantless search of my client's vehicle in violation of Gant.

During this illegal search, the officer found what he described as a "small beige piece of rock" on the floorboard of the vehicle. Using his handy Scott Cocaine Test Kit, the officer noted the rock turned blue, indicating the test was positive for cocaine.

According to the Scott Company's website:

Scott Company Drug testing products are Colormetric Field Tests for the presumptive identification of narcotics, illegal drugs and controlled substances.  The chemistry of the reagents found in these tests is of the same type relied upon by forensic chemists in laboratories to detect and identify illicit drugs & controlled substances. We have placed these reagents in better, more accessible packages that allow them to easily and safely used in the field by law enforcement officers. 

Though test accuracy is subjective contingent upon the composition of the substance being tested, we certify our test kits to be no less than 99% accurate. To date, there is no colormetric drug test kit (suitable for field use) produced by any manufacturer that is completely 100% accurate and immune from either inconclusive or false positive readings. 

We were set to argue our motion to suppress some five months after my client was arrested.

On the day of the hearing I got a call from the prosecutor handling the case telling me they were dismissing it. The state wasn't dismissing the case because the prosecutor came to the realization that my client's constitutional right against unreasonable search and seizure, the state was dismissing the case because the lab who tested the rock found in my client's vehicle said it wasn't cocaine.

In the lead up to the suppression hearing, I had another prosecutor tell me that the search was good and that he would offer my client two years in prison in exchange for a guilty plea.

I don't know what disturbs me more about this case: the fact that no one from the DA's office notified me of the lab results until five months after my client's arrest or that a prosecutor was more than willing to send my client to prison for two years without any proof he had broken any law.

When does a traffic stop become unreasonable?

At 1:40 a.m. on July 17, 2009, police in Southaven, Mississippi stopped a white Pontiac Grand Prix for driving with no license plate tag. After he pulled the car over, Sgt. Lance Sheppard realized the car had a license plate but the license plate light was not working.

After he approached the car from the passenger side he asked the driver, Josue Valle-Tellez, for his driver's license and insurance. He then asked Mr. Valle-Tellez to get out of the car. After informing Mr. Valle-Tellez that he had been stopped because his license plate lamp was out, Sgt. Sheppard frisked him for weapons. He then began questioning Mr. Valle-Tellez about his travel plans. He asked Mr. Valle-Tellez where he had come from, where he was going and who the passengers were. Officer Cunningham (who arrived after the initial stop) then watched Mr. Valle-Tellez while Sgt. Sheppard questioned the passengers.

After getting conflicting answers from everyone, Sgt. Sheppard asked Mr. Valle-Tellez if he could search the car. All this time the good officer held on tight to Mr. Valle-Tellez' driver's license and insurance card.

Lo and behold, forty-five minutes later, in the bumper of the car, Sgt. Sheppard found eight kilos of heroin hydrochloride. Mr. Velle-Tellez was arrested and charged with possession with intent to distribute.

But, wait just a minute. The Honorable Sharion Aycock, a federal district judge for the Northern District of Mississippi, ruled the stop was unreasonably extended and that the search was, therefore, illegal.

The court evaluated the initial traffic stop under the Terry v. Ohio analysis and determined that Sgt. Sheppard was justified in stopping Mr. Valle-Tellez' car. The court then looked to see if the detention was reasonable and lasted no longer than necessary in relation to the reason for the initial stop.

To make that determination the court looked to whether Sgt. Sheppard "pursued a means of investigation that was likely to confirm or dispel [his] suspicions quickly..." In making this analysis the court looked at how much time elapsed between the time Sgt. Sheppard asked for Mr. Valle-Tellez' license and when he "ran" the license. The court also looked to the timing of Sgt. Sheppard's request to search the car (he didn't check Mr. Valle-Tellez' license until after he had consented to the search). The court also looked at the "totality of the circumstances" surrounding the stop to determine whether Sgt. Sheppard had developed a reasonable suspicion based on articulable facts. Finally the court looked at the length of the overall stop (over 45 minutes).

Judge Aycock found that the length of the stop made the stop unreasonable as Sgt. Sheppard was unable to show a connection from contradictory answers from the driver and passengers and criminal activity.

The court then tackled the issue of Mr. Valle-Tellez' consent to the search. The court looked to a multi-factor test used by the Fifth Circuit in making its determination. The court focused in on the timing of Mr. Valle-Tellez' consent in relation to the illegal stop. The court was troubled that the police delayed the return of Mr. Valle-Tellez' driver's license and did not inform him that he was free to leave once his license came back "clean." The court then decided that Mr. Valle-Tellez' consent was "not an independent act of Valle-Tellez' free will."

The court granted Mr. Valle-Tellez' motion to suppress on the grounds that the stop was unreasonable and that the search was illegal.

This fact pattern is repeated ad nauseum in towns and cities across this country, but many defendants choose not to challenge the legality of the stop because they gave their "consent." Mr. Valle-Tellez chose to fight and was rewarded for that decision.

See also:

"N.D.Miss: 45 stop without RS unreasonable" Fourthamendment.com (Jan. 16, 2010)

A flaw in logic

Just one more thought on Harris County District Attorney Pat Lykos' apparent backtracking on the office's new drug policy...

If the reason for the new policy is that any amount less than .01 grams does not provide enough of a sample for retesting, what is there to revisit in six months? If the policy were implemented because of jail overcrowding or the size of the courts' dockets, then revisiting the policy after a time would seem to be a prudent idea. But, if the reason behind a policy is based on accepted forensic scientific protocols, those won't change in six months. If .01 grams is an insufficient sample for retesting on January 1, 2010, it will be an insufficient sample for retesting on July 1, 2010.

DA backtracks on new drug policy

One day after announcing a policy change in the prosecution of some drug offenses, Harris County District Attorney Pat Lykos seems to be backtracking from her original position. Facing stern opposition from local law enforcement, Ms. Lykos said her office would re-evaluate the new policy after six months.

Critics of the new policy claim that it will result in an increase in burglaries and robberies from addicts looking to buy more dope. Ray Hunt, vice-president of the Houston Police Officer's Union said that officers would look the other way because they don't want to spend the time to issue a Class C misdemeanor citation.

Mr. Hunt apparently is under the impression that a stint in jail will cure a drug addict and that he or she will return to the outside as a productive member of society.

Using Mr. Hunt's logic that locking up minor drug offenders because they might commit a theft or burglary, maybe we should lock up everyone who consumes alcohol because they might get behind the wheel drunk. Maybe we should lock up everyone who owns a gun because they might one day shoot someone. Maybe we should lock up everyone who is married or dating someone because they might commit an assault against a family member.

Maybe Mr. Hunt's opinion would change were he to consider the overtime bonanza that could result from patrol officers having to appear in municipal court -- just ask the traffic cops.

Harris County to institute "catch and release" policy

The Harris County District Attorney's Office announced a change in its policy regarding arrests for trace amounts of drugs, particularly crack pipes with cocaine residue.

Beginning on January 1, 2010, if the amount of drug residue is less than .01 grams, a person will be cited for possession of drug paraphenalia, a Class C misdemeanor punishable by fine only. By law a person charged with possession of a controlled substance has the right to examine and retest the substance. The District Attorney's Office has determined that an amount of less than .01 grams is insufficient to allow for retesting of the substance.

According to the new policy, if the person is carrying drug paraphenalia and the officer cannot determine the weight of the drug residue, the officer is to issue a citation and release the alleged offender. If the drug residue is found in some container other than drug paraphenalia, the officer is to issue a citation, release the alleged offender and submit the container for testing. If the amount in question is more than .01 grams, the officer may submit the case to the DA's office and request an arrest warrant.

You might hold off on going through the car wash

I was reading an offense report for a case down in South Texas the other day in which an ordinary traffic stop turned into an arrest for possession with intent to deliver a controlled substance. Among the "suspicious" behaviors that led the state trooper to believe the motorist was involved in some type of criminal activity was this gem:

"The vehicle appeared to be freshly cleaned and detailed."

So, if you're traveling down to the Valley, hold off on washing that car.

Turning a traffic stop into something more

I came across an interesting article written by Joe Buckley, president of John E. Reid and Associates, in The Police News this morning as I tooled around the Galveston County Courthouse and the county jail. For those of you not familiary with John E. Reid and Associates, they are the developers of the Reid Technique of interrogation.

"The officer conducting a roadside interview is in a unique position to develop incriminating information. Because the initial stop is for a traffic offense, Miranda warnings are not required. Most of these stops are made when the officer sees a violation occur so the driver already knows that he or she has been caught doing something wrong and this awareness makes it easier to acknowledge other transgressions. Finally, the driver is and car occupants are caught off guard without the opportunity to create a credible alibi or dispose of incriminating evidence that may be in the vehicle."

A DWI case begins, usually, as a simple traffic stop. Of course, the task force officers are just looking for any justification to stop the driver, and, if you watch long enough, someone's going to do something wrong. In the same context, it never ceases to amaze me how many people consent to a police search of their car knowing full well that the officer is going to find something that shouldn't be there. Do you really think that officer who found the cocaine in the center console is going to let you walk because you consented to the search?

"It must be remembered that people stopped for traffic violations are, for the most part, guilty of the offense for which they were stopped and will certainly exhibit symptoms of anxiety as a result of being caught. In this sense, persons stopped for a traffic violation are "guilty" of the violation. However, they may exhibit behavior symptoms of guilt or deception because of involvement in some unrelated criminal activity or because they lied to the police officer's questions..."

When an officer starts questioning a motorist after a traffic stop he's not only interested in what the driver has to say -- he's just as interested in how the driver says what he says. It's something to think about as more states are pushing the police to enforce seatbelt laws. If an officer sees you driving without wearing your seatbelt, he's got as good a reason as any to pull you over... and thus it begins again.

"Persons with nothing to hide pull to the side of the road when the officer turns on lights and siren; when at home, they answer the door when the officer knocks on it and respond to questions without objection. Conversely, it is a classic symptom of guilt for a person to run from the police in response to an effort to stop his vehicle or question the suspect at his home."

Of course it must also follow that only the guilty person is interested in exercising his constitutional rights and demanding that he be afforded the protections found in the Bill of Rights. Maybe we could dispense with the entire trial system and convict people on their willingness to talk to the police.

"Communicating with one's hands occurs when a person is confident and sincere in his statements. Illustrators reinforce the credibility behind the spoken word. The lack of illustrators can be a significant behavior symptom of possible deception. The classic description of a guilty person going through a border stop is that the subject's hands are cemented to the steering wheel at the 11 and 2 o'clock positions and his eyes stare straight ahead at the road. Simiarly, when questioning a child who has done something wrong, the child will hide his hands by putting them in his pockets."

This is the essence of the Reid Technique - the nonverbal cues that either jibe with what's being said or are in stark contrast to the spoken word. Where is someone looking? What are they doing with their hands? How is someone standing?

The Reid Technique also involves an interrogator putting himself in the suspect's shoes and trying to imagine a scenario in which the suspect would feel justified in doing that which he allegedly did. For instance, if a man is suspected of murder, his interrogator may be able to lead the suspect down the path of self defense in an attempt to convice (coerce?) the suspect into admitting he killed the victim. In David Simon's Homicide: A Year on the Killing Streets, the Baltimore detectives referred to this particular technique as the light at the end of the tunnel.

The lesson, as always, is to pay attention when that officer tells you that you have the right to remain silent.

Mexico to decriminalize minor drug possession

The Mexican legistlature has voted to decriminalize the possession of small amounts of drugs ranging from marijuana to heroin to methamphetamine. Supporters of the measure say that if Mexico is to rid itself of the large-scale drug violence sweeping the country, it must use its resources wisely - and that means going after the large-scale producers and distributors.

President Calderon supported the legislation much like his predecessor Vincente Fox - but President Fox caved in to pressure from the Bush Administration and withdrew his support for the measure.

"The important thing is . . . that consumers are not treated as criminals," said Rafael Ruiz Mena, secretary general of the National Institute of Penal Sciences. "It is a public health problem, not a penal problem."

Critics of the plan argue that decriminalizing drugs is giving in to the narcoterrorists who have left a bloody swath across the country over the past decade. These critics worry that Mexico will become a Latin American version of Amsterdam complete with tourists coming in to satisfy their drug habits.

The plan would remove criminal penalities for the possession of up to 5 grams of marijuana, 500 milligrams of cocaine, 50 milligrams of heroin and 40 milligrams of methamphetamine.

Calderon's initial proposal called for mandatory treatment for those who wished to avoid jail time but the bill was changed to call for treatment to be encouraged.

While I understand the need to make better use of limited resources, I also understand that drug trafficking is big business because of the demand for drugs and that any policy designed to eradicate illegal drugs must attack both the supply and demand sides of the equation.

The law of unintended consequences

Is it possible that the latest pandemic causing otherwise sane people to spin off the deep end in panic is the unintended consequence of the flu vaccine?

The idea is not as counter-intuitive as it sounds. Just as every other organisim out there, the purpose of a virus is to replicate and ensure that the strain lives on. With the widespread availability of the flu vaccine, some strains of the flu are unable to go from host to host and replicate themselves. Those strains that cannot replicate themselves are gradually eliminated from the virus population.

Viruses mutate just like any other organism and, in the case of the flu, the mutant strains are not stopped in their tracks by the flu vaccine. Thus, we are left with resistant strains of the flu floating around. These resistant strains tend to be stronger and more virulent that the virus knocked out by the vaccine.

So, the introduction of the flu vaccine, meant to shield as many people from the flu, has, instead, contributed to the development of stronger strains of the flu that are resistant to the current vaccine.

Economists refer to this phenomenon as the law of unintended consequences and it is (virtually) a universal truth: any attempt by a simple system to regulate a complex system generally leads to unexpected (generally negative) outcomes. The war on drugs brought us more violent street crime, overcrowded jails and a generation of black males whose contact with the criminal justice system is scandalous; and MADD's rampage has made criminals out of ordinary folks who were in the wrong place at the wrong time. 

See also:

• Twitter's secret: the law of unintended consequences
  
• Marginal revolution: the law of unintended consequences
  
• The law of unintended consequences: 20th century and beyond
  
• Basketball prospect leaving high school to play in Europe (New York Times 4/22/09)
  

A voice of reason

Finally, a voice of reason in the neverending war against drugs.  

Judge Michael McSpadden, who presides over the 209th Judicial District Court in Harris County, sent a letter to top state officials and the representatives and senators from Harris County asking them to reduce felony cases involving less than a gram of cocaine to misdemeanors. Judge McSpadden proposed mandatory treatment and the creation of misdemeanor drug courts. 

According to Judge McSpadden, at least a quarter of the felony court dockets are cases involving possession of less than a gram.

Fifteen other Harris County judges also signed the letter.

“The ‘War on Drugs’ isn’t working, and we as judges realize it,” McSpadden said. “And the public realizes it.

But Harris County D.A. Pat Lykos raised questions of whether such a reform would be in anyone's best interest.  Ms. Lykos stated that reducing possession to a misdemeanor would mean more inmates in the Harris County Jail.  She also said that small drug arrests tend to drive out other criminal activity in an area.  Finally, Ms. Lykos said that all drug users have blood on their hands due to drug cartel violence.

• Read Grits' account of Judge McSpadden's letter to state officials in 2006.