Tuesday, February 26, 2008

The Crack Pipe Residue Question

One of the biggest issues facing the District Attorney's Office and criminal justice in Harris County is finding the appropriate way to deal with a Defendant charged with possessing a crack pipe that field-tests positive for cocaine residue.

Under the Penal Code, possession of any amount of cocaine (even if it is just residue) is a felony. For those amounts less than a gram, they are State Jail Felonies, punishable by 6 months to two years in a State Jail Facility (NOTE: Most defendants hate State Jail more than TDC, because the time must be served day-for-day, with no early release). If a person charged with a crack pipe case has prior felony convictions, that punishment range can be enhanced to a maximum of up to 10 years or even 20 years (depending on the types of priors).

Twenty years for a crack pipe? Does that sound excessive? Well, yeah.

And do you think there are lots and lots of these cases pending in every court? Absolutely. They are most definitely "docket cloggers".

So, what's the right thing to do with these cases?

A few years ago, the legislature changed the guidelines that a first offender was a mandatory probation. Not a bad idea, but it created a lot of issues that probably weren't anticipated in advance. Face facts, some defendants aren't good candidates for probation, and quite frankly, they don't want to be on probation. More often than not, these Defendants get probation and violate it within a few months with a new crack pipe case.

However, the mandatory probation, at least provides the opportunity (and I do stress "opportunity") for a Defendant to get some help with a substance abuse problem.

Another possible punishment is to plead the cases out to a $500 fine on a Class C-Possession of Drug Paraphernalia. That would be a quick and easy way to dispose of the case. The downside, however, is that a Defendant doesn't get any opportunities to get help. They just get recycled immediately back onto the street.

The question arises of what is the right thing to do?

Ideally, resources should be spent on rehabiliating drug users and making them productive members of society. However, this isn't a popular choice amongst those charged. The prevailing attitude in most holdovers that I've observed is "whatever gets me the hell out of jail fastest is what sounds best to me."

Add to the mix the fact that in many lower-income neighborhoods, crack addicts are an epidemic that have ruined places to live. I'm not exaggerating when I tell you that I've seen incidents where crack addicts have literally moved in to homes of elderly people (with the elderly people helpless to resist) just to turn the place into their personal dens for crack smoking.

So, what do you do?

A person spending twenty years in prison over a crack pipe is excessive, to say the least.

But people in every neighborhood have a right to be safe.

A person's life shouldn't be ruined over a simple crack pipe.

But there's no denying the carnage that crack use has caused in many neighborhoods.

What's the right answer?

Is there one?


J said...

I say handle it like another urban county does: if there's not enough residue to retest, then treat them as paraphernalia cases. Put the onus on the police agency to complete the lab test before the felony is filed. Face it, some police officers love to file these cases because it's an easy felony arrest stat. Make them follow up and file it as a to-be after the lab test if it means so much to them. These cases clog the docket and take time away from other, more serious cases. Yes, there is merit to giving these crack addicts drug treatment. But how much treatment do they get in their 60 day stay in jail?

Anonymous said...

What about the police agencies that target drug areas with "aggressive" or "proactive" policing, meaning they arrest a person for walking on the street instead of the sidewalk or riding a bike without a headlight?

I agree that drug addicts need treatment. Take SAFP for example. The current wait for a bed in SAFP is 6 months. Of course the addict has to wait in the county jail. SAFP then requires lockdown for 1 year. After that year and a half, the defendant is then released, and is on probation for another two or three years.....

who in their right mind would agree to that plea bargain? 6 months in the State Jail or a year and half lockdown and then probation?

Legislature needs to fund more treatment centers and change the law. Would it be that crazy to let someone plead to SAFP as their punishment. If they complete the program, they have satisfied their sentence? Thus not having to navigate through the probation department?

Michael said...

Decriminalize crack to remove the profit motive and deflate the price; spend the money currently spent on prosecuting and incarcerating crack defenders on treatment; prosecute crackheads who take over elderly persons' homes as kidnappers.

jigmeister said...

I'm afraid Michael might be right this time. However, I don't see the legislature doing it. In 25 years of prosecution, it was a problem with no solution. We will always lose the drug war. Just ask any narc.officer.

I favor increasing the penalties for committing crimes while on drugs like we do for hate crimes. Prosecute vigorously the endangerment to children cases involving drugs. (Crack babies-another can of worms)

In lieu of legislation, we need to utilize deferred prosecution alternatives and given our crime lab problems, decline prosecution whenever testing would destroy the substance. Those cases ought be filed as class c's in the appropriate jps or muni-court.

Ron in Houston said...

You know it's kind of funny - the person who got most people off drugs in China was Mao. He threatened to execute anyone caught with drugs.

People have to come to a decision that using drugs just is more of a problem than the enjoyment from using. The pain of the criminal justice system sometimes makes them make that decision.

It's a societal problem, but up until society really addresses it, that's where prosecutorial discretion comes in.

A Harris County Lawyer said...

Thank you all for your insightful comments. I have to say that I agree with J's comments the most. I think it's a great idea to make the untestable cases with Class C misdemeanors. The problem I foresee with that, however, is that a police officer will be less inclined to actually go through the steps of making an arrest on a Class C case. If he ends up just issuing a suspect a citation, and then leaving that suspect with a ticket, it doesn't help the problem.

My suggestion would be a slight modification. Let him go ahead and make the arrest, but give the prosecutors the freedom to plead it out to a Class C. Right now, prosecutors don't have that freedom.

Anon 4:54 also has a great idea for those offenders who truly want help. He/she also illustrates the bigger issue of why help is often times so hard to come by. No defendant wants to wait it out in the Harris County Jail to get into a lock-down facility. They might as well take the 6 months State Jail. The idea of SAFP being an actual "punishment" sets up an interesting scenario that could end up being a de facto "pre-trial diversion". I like that idea a lot, too.

Michael, my friend, I understand the "legalize drugs" argument, and I've considered it many of times. Although my feelings are much more ambiguous about the legalization of marijuana, I think that the legalization of harder drugs would ultimately wreak havoc. More money for treatment would be great, but the problem is, would people actually seek the treatment, if they didn't have to?

I think it would be a very interesting statistic to look at the raw numbers of people who enter rehab voluntarily, and not due to a pending criminal case, part of a probation, or being named Britney and/or Lindsay (and going because your PR agent thought it would be good for your image).

jigmeister said...

3/2/and a hun. That doesn't help with the conjested dockets. The cops know when there is only residue. Make it a filing policy and get together with the JP's and city. If there was a joint plan that included some conditions to avoid the fine (which none of these addicts have) that would be better than nothing. Lots of Capias Profines though.

Brew95 said...

"What's the right answer?"

Don't smoke crack? Or use disposible crack pipes?

Anonymous said...

Possession of Marihuana (POM) requires a "useable" amount, which to me has always been a source of subjective humor - though I have not seen this defense raised at trial be myself or other defense attorneys. I say that b/c I anticipate a what is 'residue' argument. I like the not enough to re-test theory, but a minute amount can be re-tested and so that may be insufficient. I think the class C discretion for ADA's should be reserved for first offender cases. In my opinion, the repeat less than a gram defendant is typically an addict who probably needs help. Jail time doesn't deter them as evidenced by the repeat offense. That said, does treatment work? Not always. Are the treatment options available outside of probation that are convenient and/or affordable to your run of the mill crack smoker adequate to the number of people who need them - and do they work? For example, with alcoholics, AA isn't the best program out there, its just the most common and the cheapest.