Wednesday, December 9, 2009

The New Crack Pipe Policy

Pat Lykos has gotten herself back in the news today with the announcement of her new policy of the Office no longer filing crack pipe "residue" cases. As the Chronicle article points out, the move is being met with polar opposite reviews from police officers and defense attorneys.

For those of you unfamiliar with the lingo, a crack pipe residue case is typically called a "trace case" by most criminal lawyers. The typical scenario is that a person is arrested for a Class C offense (in the poorer neighborhoods, that's usually a jaywalking, walking in the street where a sidewalk is provided, or a bicycling without a headlight). Once a patrol officer arrests the Class C scofflaw, the "search incident to arrest" will often times recover a crack pipe with no crack rock in it. However, a quick test with a field kit will show that the pipe tests positive for cocaine residue and voila, we have felony charges.

The reality of the situation is that the crack pipe once held a perfectly solid crack rock, but now it's gone. The way the statute reads allows for any amount of cocaine be filed as a State Jail Felony. In other counties, however, the cases can be disposed of with a Class C Possession of Drug Paraphernalia plea. In Harris County, the cases were often handled with 12.44(a) Time, which is a felony conviction punished with misdemeanor jail time.

The police are not happy with Lykos' new policy, and I understand why. Police Departments like to utilize the statistics of Felony Arrests, and if the D.A.'s Office isn't going to let them count crack pipe residue cases anymore, then those stats are about to take a severe dip. That ain't going to make the upper echelons happy, if you ask me.

My thoughts on Lykos' policy is that this was probably a good move, though.

Yes, you read that correctly. I agree with Lykos on this particular issue.

Filing crack pipe cases are a tremendous use of State resources that could be better expended on more serious cases.

And it isn't as if she is de-criminalizing drugs. The option will still remain for a police officer to file a Class C violation on a crack pipe holder and they will still have the power to take that person into custody (if they so choose). They just aren't going to get their felony arrest stat and the accused isn't going to spend the next several months in jail.

And the prosecutors at the D.A.'s Office can spend more of their over-worked time focusing on more serious cases.

Now I'm wondering what the Office is going to do with all the residue cases that are currently pending. I'm hoping that a lot of us are going to be getting our Class C offers immediately and we can get some of these folks home for Christmas.

33 comments:

Anonymous said...

"I'm hoping that a lot of us are going to be getting our Class C offers immediately and we can get some of these folks home for Christmas."

It's official, Murray has switched teams. Hope all of your crackhead clients enjoy their holiday's. Be sure and tell them Merry Christmas as they are carrying your 60" plasma out of your house.

Anonymous said...

If you have a crack pipe and are DWI will you get pretrial diversion?

Anonymous said...

I'm hoping that a lot of us are going to be getting our Class C offers immediately and we can get some of these folks home


So they can break into working peoples houses for Christmas

Anonymous said...

The problem is that Murray, Lykos and I live in stable neighborhoods that do not have crack heads milling around looking for stuff to steal 24 hours a day.

It is easy to say well just arrest them for burglary etc. The problem is that the crackhead picks the time for the break in. So he waits for no police no one to call the police etc. No leads to follow.

This will take away the police ability to stabilize marginal areas resulting in a rise in crime and lower quality of life for the working people in these areas.

Finally the police stat I am worried about is not the lowering of felony arrest but the rise in BMVs burglaries, thefts etc.

Also I always hear that this will allow us to concentrate oh other crime. Lets look back in a year and see if the jail time goes up for any other crime i.e BMV (almost no time now) burglary etc.

My guess is that time will no go up.

A Harris County Lawyer said...

Actually, I live in the 5th Ward, thank you very much.

Anonymous said...

The new townhouses on clinton with gates and walls do not count

A Harris County Lawyer said...

That's not quite where I live, but close enough. Either way, I'm a target to these thieving crackheads you mention.

Anonymous said...

If you have a little powder, make sure and snort it before the cops knocks takes you out of the car.

Anonymous said...

The problem here is that Lykos has implemented a local solution to a nationwide problem. It is an absolute truth that a large majority of crack users engage in petty and major crimes to finance their habit. The crack pipe simply represents the end result of the crimes committed to finance the habit. Discarding the felony charge for possession of the crack pipe does not eliminate the need of the crack user to steal in order to finance the habit. It merely eliminates the ability of the police to remove a crack addicted burglar from the street.

Having worked both sides of the courtroom (like Murray), I am sympathetic to the argument that residue crimes are excessive charges for an unusable amount of cocaine. However, I am also sympathetic to the argument that escalating crack use in a neighborhood is paired with rising burglary and theft rates in that same neighborhood.

It seems to me a more thoughtful approach to the problem of residue cases would be an increase in treatment programs, since possession of a crack pipe is just as symptomatic of a crack addiction as it is a crime spree to finance the addiction.

Anonymous said...

As long as we are locking up all the crackheads and forcing them to buy dope from the jailers in the county lockup, why don't we lock up all the the prescription pill and alcohol addicts too. Or are we only locking up the poor ones that can't afford rehab.

The crackheads aren't the people stealing the plasma TVs. They are the ones giving blowjobs for $10.

Please read about addiction before you show your ignorance and arrogance.

BLACK INK said...

Jack Nicholson often jokes that his mother never saw the irony in her calling him a son of a bitch.

It wasn't so very long ago that the civil defense attorneys were pushing tort reform and with that reform came pink slips for many of the proponents.
So at least the Lykos reforms have a silver lining in that they will thin out the herd of criminal defense attorneys in Harris County.
However, a comprehensive risk benefit analysis down the road will undoubtedly reveal that the dynamics of crackheads and their pipes are not a simplistic one dimensional issue.
Lykos has merely negated an important law enforcement tool to promote a politically correct sound bite without a full appreciation of the real long term consequences.
So what's new?

Anonymous said...

I thought Republicans were supposed to be tough on crime?

I can't think of one new policy that Lykos has instituted that is law enforcement oriented. She gives sweetheart dismissals to wealthy DWI defendants if they pay enough to support corporations in the liquor industry, she grants immunity to reckless drivers that kill, and she stops the police from being proactive in crime suppression by taking away their best tool to keep criminals off the street. Everything of note that she has done has been to help out criminals and defense lawyers (and defense lawyers are apparently too stupid to realize that about 20% of their potentiual jobs will disappear with these new crime tolerant practices).

She is pandering to defense lawyers making DA employees the local public defenders office.

Anonymous said...

Anon 10:11 missed one:

If you have a crack pipe and kill somebody in a car while drunk, you will get immunity because those aren't prosecuted anymore.

Anonymous said...

I'm with Lycos on this one (wait, did I just say that?!). Anyone who's tried a crack pipe residue case knows no jury wants to give someone time in the State Jail (akin to the pen, except you don't get any early release for good behavior) for possessing cocaine you can't even see. It seemed like a joke to try a case like that when cases for rape, manslaughter, and possession of a kilo of cocaine were lined up behind yours.

But I do agree that Republicans may not be too eager to elect a Republican judge who seems to line up with the defense bar more than she does her own team (even though no one would characterize her as a team player).

Anonymous said...

Trace amounts that can't be seen are easily defensible since state has to prove knowledge on part of defendant, so we are only talking about relief for small amounts that can be seen. The whole purpose of the "possession" crimes is to prevent people from using or selling contraband. So in order to succeed at the purpose, it doesn't matter whether the amount possessed is a trace or a large amount, the defendant was using or selling contraband and has been caught. Why let the ones who are lucky enough to have already used most of it up get off while you still prosecute the ones that haven't used theirs yet ? Just because it's a pain to prosecute and the dockets are too large is no good reason to cease protection of the public.

Anonymous said...

Maybe this will mean they don't need 4 prosecutors per court any more. Lykos needed a way to trim the budget to pay for the remodeling. Still plently of dead weight left in the office that would be easy to pick from.

Anonymous said...

Lykos is doing nothing more than legislating from her bully pulpit, again... Perhaps the police should arrest the crackheads, drive them to Pat Lykos' neighborhood, and drop them off with their class-c crackpipe summons.

I know that there is a great deal of dissent, but ride a long with a police officer in a shitty part of town on a friday night. You will change your mind a realize what a bad idea this is... AND I'm a defense atty!

Anonymous said...

anon 2:15

You're right. They aren't stealing plasma TV's. They're stealing copper from a/c units. They're breaking into cars and stealing stuff that people are dumb enough to leave in plain sight. They're walking into banks and trying to cash stolen checks. And, they're giving blowjobs for $10.00.

Anonymous said...

The problem here is that Lykos has implemented a local solution to a nationwide problem.


Uhhhhh, I don't know about nationwide, but you may want to read up about the "local" part. Harris County was in the minority of counties that file felony charges for residue cases.

I hope you're not a prosecutor.

Lykos is doing nothing more than legislating from her bully pulpit, again...

Actually, making felonies out of misdemeanors is legislating from the bully pulpit. This is properly classifying a paraphenalia case as a misdemeanor, like it is on the books.

Anonymous said...

Actually, juries are quite interested in these cases. Believe it or not, they were handing out hefty sentences (10-15 years) to habitual offenders in the months preceding this decision. Juries get it -- crackheads deprive their right to live in a crackhead free world. And yes, by the way, crackheads will break into your home, business, or other structure and steal your plasma TV. You can play ignorant and look at a crack pipe case in a vaccum and see it only as a crack pipe. You can also take a big picture look and see a crackpipe case as an affront to the peace and dignity of the State, which it is. None of us, including Murray, have a crackhead in our front yard right now. Try living like that and then weigh in on the issue.

A Harris County Lawyer said...

Actually, I do have a crackhead hanging out in front of my house.

Eric J. Davis said...

You, my man, are officially a defense lawyer.

I live in 3rd Ward.

Anonymous said...

In front of your house, not IN your house, Murray. :)

Anonymous said...

"That's not quite where I live, but close enough. Either way, I'm a target to these thieving crackheads you mention"

I figured I was close.


My guess is that in about six months the streets in front of Murray's and my house will look like a scene from Night of the Living Dead Crack Zombies everywhere.

jigmeister said...

Just food for thought (or fodder for argument): Presently a large percentage of law enforcement resources are dedicated to petty narcotics enforcement. Not just narcotics officers, but numerous task forces. If those officers were assigned to follow up on property crimes, burglaries,and hijackers would the solve rates for those crimes go up? What percentage of burglaries are investigated sufficiently? When my home was burglarized years ago, I made sure that prints and photos were taken, but then I was in the business and called in favors.

I disagree with those that say we have switched teams. I'm not sure it was the same people using the crack pipes that were travelling to the burbs to commit burglaries, more likely the meth heads these days. The crackhead riding his bike without lights wasn't the guy committing the burglaries; they have pickups to carry away the loot.

Just saying: If something hasn't worked after 30 years of trying, try something else.

Anonymous said...

Jigmeister, I agree with you. And I think the new policy could be ok. The problem is that she announces a sweeping policy with no exceptions. It was an effective tool for law enforcement officers when they have suspects they believe are involved in capital murders, etc, to pick them up on a crack pipe case, and continue to investigate. Now there's no way to do that. Not to mention dealing with all the complaints from the people that live in these neighborhoods....but let's not learn from experience....

Anonymous said...

Anon 9:59,

Regarding your comment that, "The problem is that she announces a sweeping policy with no exceptions. It was an effective tool for law enforcement officers when they have suspects they believe are involved in capital murders, etc, to pick them up on a crack pipe case, and continue to investigate."

You're right but it's not Lykos' fault; it's the fault of all the cops who, instead of using the charge as an effective tool to pick up murder suspects, etc., use it as a way to run-up their monthly felony arrests to please their sergeants. As I understand it, 13,000 cases of less than a gram where processed last year - and we haven't come close to that many hoomicides not matter what some with various agendas (HPOU, HCDO) like to claim.

The failure of officers to effectively use their discretion brought this problem to the forefront and now they whine about it and some (as always) are diligently working at circumventing the intent of this management decision See http://www.hcso.bravehost.com/ under "CCD in a Panic" posts in the Forum for an example of their attitude. It's that kind of crap that got us here.

As jigmeister stated, "If something hasn't worked after 30 years of trying, try something else."

jigmeister said...

That policy should make absolutely no difference to investigative cops. They can still arrest, and if the supremes haven't changed the law since that El Lago case, still arrest for class c offenses. Not only that but residue cases are still SJ crimes, but with the DA exercising the discretion not to file. However, if the law is ever changed so that you can't arrest for a class c,especially vehicle offenses other than speeding, that would cut off all sorts of investigative avenues that specialty cops have used for years.

jigmeister said...

No policy would be so sweeping that valid exceptions aren't made. Unfortunately, Lykos may not have the smarts to give D.C. Chiefs, Special Crimes, Chief of Intake, etc. the authority to make those exceptions when necessary.

Anonymous said...

Jig,
"...Lykos may not have the smarts to give D.C. Chiefs, Special..."

There's no "may" about it...Lykos is not the sharpest knife in the drawer.

Anonymous said...

As a police officer, these criminals will still be instantered for their crimes...over and over again. This isn't fixing any problems. With Lykos' new policies(DWI, crackpipe), the citizens of Harris County better be aware of all of the crackheads on the loose, because they are the same ones who rob, steal, and burglarize just to get high.

Anonymous said...

In almost 10 years of filing felony charges for trace cases, I can count on ONE hand the number of times my cses have ended up in front of a jury: 1. The def's most often plead for reduced time in County Jail. I have had numerous habitual offenders get TDCJ time, but nothing more than 2 years. I've had numerous BMV charges filed either dismissed or reduced when I catch the crook with a pipe. The problem here is the slippery slope....when do we start issuing citations for POM less than 2 ounces? We all know, on both sides of the argument, that drug use leads to property crime, especially in poorer areas. Sure, I'll continue to instanter my crackheads when I catch 'em with a pipe, but they'll be back out on the street in 24-48 hours. Back at it again. I just booked a crook last week when I caught him in the act of burglarizing several coin operated machines and a vehicle. He had a crack pipe on him and a pocket full of change. DA intake took the PCS charge and dumped the BMV and Burg Coin Op. Machine. With this new policy, would the outcome, as far as time spent in county jail goes, have been any different? Probably not. This is not about cops using trace cases to up their felony stats. It's about reducing the case load of the ADA's. Like I said, 99% of trace cases end up resolved before ever seeing the inside of a courtroom.

Anonymous said...

Can anyone provide a web address to view the HCSO blog?