Guest Post: Lykos and Judicial Activism
A guest post from a commenter who wishes to remain Anonymous:
I ask all those who consider themselves to be Republican party activists, members of the Tea Party, and/or those who find judicial activism to be antithetical to the law and the will of the people to imagine the following scenario.
Attorney General Eric Holder holds a press conference to announce he has unilaterally determined that the Department of Justice will no longer prosecute certain low weight narcotics cases even though Congress passed a law making it illegal to possess these narcotics regardless of their weight. He provides four reasons for this decision: (1) This is the practice in other jurisdictions, including Canada and France (2) Federal judges complain that these cases are clogging their dockets, (3) Assistant United States Attorneys observe that juries do not care much about these cases, (4) in a period of limited resources, law enforcement’s time can be better used fighting other crimes. Drug Enforcement Administration officers complain that this policy undercuts their ability to practice the “broken windows” strategy of law enforcement that has proven to be successful in reducing the crime rate in New York City and elsewhere. Their complaints fall on deaf ears at the Department of Justice and Holder even goes so far as to suggest that the DEA officers who are complaining are more interested in “getting arrests for the sake of having statistics.”
My guess is that if this were to happen, you would be appalled that a public official unilaterally decided to ignore a law passed by the legislature simply because they disagree with it. You would be aghast that justification for the policy was based on practices in different jurisdictions. You would be outraged that the government’s leading law enforcement official not only disregarded police officers’ complaints but belittled their concerns.
This is exactly how Harris County District Attorney Judge Patricia Lykos has acted with regard to Possession of a Controlled Substance Less Than One Gram cases. Based on her unilateral decision Harris County Assistant District Attorneys no longer prosecute cases in which defendants are found to possess narcotics like cocaine, heroin, and methamphetamine weighing .01 grams or less. (The Houston Chronicle, December 5, 2011, compared this amount to approximately one-half a grain of rice.) Her reasons for the policy: (1) This is the practice in Travis and Bexar counties (2) Harris County District Court Judges complain that these cases are clogging their dockets (3) Harris County District Attorneys observe that juries do not care much about these cases (4) and “(w)hen you have finite resources, you have to make decisions and this decision is a plus all around.” (Houston Chronicle, December 8, 2011). When the leaders of six Harris County police organizations, including the Houston Police Department, expressed that the unilateral policy change was not a plus all the way around as it hampered their ability to practice “broken windows” policing and prevent invasive property crimes like burglary, Judge Patricia Lykos dismissed their concerns as “getting arrests for the sake of having statistics.” (Houston Chronicle, November 29, 2011).
Judge Patricia Lykos insists, “We are not ignoring state law.” (KUHF-FM, November 29, 2011). This is a lie and a prime example of judicial activism run amok. The Texas legislature has drawn a clear distinction between cases of Possession of Marihuana and Possession of Controlled Substances. Texas Health and Safety Code Section 481.121(a) sets forth that a person commits the offense of Possession of Marihuana when they “intentionally or knowingly possess a usable quantity of marihuana.” In essence this means that if you possess enough marihuana to take a drag you have broken the law. Texas Health and Safety Code Section 481.112(a) covers Possession of a Controlled Substance crimes and sets forth “a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance.” Note that there is NO language about a usable amount. If you have cocaine about the size of a half-grain of rice, the legislature has decided that that is illegal.
To be certain there are some valid issues and concerns with low level Possession of a Controlled Substance cases. In particular they do contribute to jail overcrowding. But there were ways that Judge Patricia Lykos could have dealt with this category of cases without ignoring the legislature, and the people. Though it would take time, she could have joined the Harris County District Court Judges in trying to change the law. On a more immediate timetable she could have encouraged the Harris County District Court Judges to reduce the bond schedule for Possession of a Controlled Substance Less Than One Gram cases from $2,000 to $500, which is the bond if an individual is charged with a similar amount of Marihuana. This latter step would substantively address jail overcrowding and simultaneously allow police officer’s to enforce the law. However, it would not grab headlines, which appears to have been among Judge Patricia Lykos’ motivations.
Republicans should care, and do care, about judicial activism. When politicians and judges ignore the clear letter of the law and the absolute intent of the legislature they subvert the will of the people. We the people elect the legislature. Our elected officials have drawn a clear distinction between the offenses of Possession of Marihuana and Possession of a Controlled Substance. This distinction should be respected until it is changed.
Judge Patricia Lykos is a Republican. But her party affiliation does not allow her to unilaterally ignore the law, misrepresent this fact to the media, and then thumb her nose at law enforcement when they complain that they are being asked to ignore a law they have sworn to uphold.
Judicial activism should not be tolerated, regardless of party affiliation. If Eric Holder acted as Judge Patricia Lykos has you would demand his removal from office. Judge Patricia Lykos should be treated no differently.