Yesterday, the Harris County District Attorney's Office made a radical change to their Operations Manual addressing how prosecutors will deal with Controlled Substances cases.
The change, which takes effect immediately, prohibits prosecutors from making a recommendation (or agreeing to go to a judge without a recommendation) on any controlled substance case, unless there is a lab report confirming that controlled substance. The only possible exception to this rule would be if a prosecutor were to recommend that "a defendant housed in jail receive a term of community supervision with no additional jail confinement as a condition of the community supervision."
The idea behind this change in policy was doubtlessly a noble one. Too many defendants were entering into plea bargain agreements on drug cases only to later find out that the drugs in question were not controlled substances after all. In situations where a lab report revealed a substance not to be a controlled substance, a Writ would have to be filed to correct the error of an innocent person who was currently serving prison time for a non-crime.
So, one might wonder why exactly a person would ever plead guilty to a drug case, if the drugs were not a controlled substance. The answer is simple -- the people who plead to drug cases usually believe that they actually were possessing a controlled substance. It should not be too shocking to discover, however, that there are some less-than-honest drug dealers out there who sometimes rip off their clientele with fake dope AKA "turkey dope." A client who is brought back from prison early to have his conviction and sentence set aside usually finds himself feeling mixed emotions. On the one hand, he's very excited to be going home earlier than expected. On the other hand, he's pretty ticked that he got ripped off on the streets.
The District Attorney's Office wants to stop wrongful convictions based on negative lab findings from happening in the future, which is a laudable goal. Unfortunately, the Office's solution is filled with problems.
By declaring that the Office "shall not make a recommendation nor agree to entry of a plea of guilty or no contest" in a controlled substance case, they put all drug cases in limbo until the lab results are available. Depending on the lab, that can be anywhere from three weeks to three months as an accused person sits in jail with literally nothing happening on his case. A Defendant who wants to work out his case won't be allowed to.
Here's where it gets a little more interesting. By stating that that their prosecutors may not "agree to entry of a plea of guilty or no contest," the Office is stating that they will block Defendants from entering a plea to the Judge of the Court without an agreed recommendation from the State. Going to the Court without an agreed recommendation from the State is a very common practice in Harris County which allows Defendants to sidestep the prevailing policies of the D.A.'s Office. Pleading without an agreed recommendation to the Judge/Court on low level drug offenses can often end up with a 12.44(a) sentence.
Now, for those of you who don't practice criminal law, 12.44(a) is a provision in the Penal Code that allows a person who is convicted of a State Jail Felony to be punished with a Misdemeanor sentence. The person is still convicted of the felony offense, but rather than being sentenced to 6 months to 2 years in a State Jail Facility, the Defendant is sentenced to serve his or her sentence in the county jail. What makes this an attractive option to Defendants is that "county time" a) gives them three days of credit for every day that they serve; and b) maxes out at a year (which is actually 4 months because of two-for-one credit). Generally, the District Attorney's Office frowns upon agreeing to a 12.44(a) sentence.
NOTE: Not all Courts do these types of "without an agreed recommendation" pleas, but many do.
Controlled Substance cases that are classified as State Jail Felonies are (generally) those where the weight of the controlled substance is less than 1 gram. This covers the multitude of "crack pipe cases" that are often prosecuted despite only a residue of crack cocaine being detected on the pipe. It is a routine practice on these "crack pipe cases" for the Defendant to plead guilty to the Judge/Court without an agreed recommendation so that the Judge can sentence under 12.44(a).
This practice of going to the Court without an agreed recommendation from the State is what will be coming to a screeching halt under the new change in the operations manual. The State has to agree to waive its right to a jury trial before such a plea can proceed, and the new policy forbids prosecutors from doing so. In essence, a Defendant who is charged with a crack pipe case that lands in a Court that is willing to sentence under 12.44(a) is going to be out of luck.
Now, let's look at some of the implications of that for a moment. Given the fact that most low level drug offenders don't exactly have a lot of cash on hand, they are probably not going to be able to bond out. A compassionate judge may be willing to give a Defendant 30 days in the county jail under 12.44(a), but the D.A.'s Office is now going to block that from happening.
Why are they going to block that from happening? Because they aren't sure that the controlled substance alleged is actually a controlled substance until they get an official lab report in. So, basically, the D.A.'s Office seems to be confident enough to deprive the Accused of his freedom for as long as a lab needs, but not confident enough to sign its name to a plea bargain. In this scheme of things, sitting on your butt in jail is worth the price of them avoiding having to do a Writ, should a substance turn out to be turkey dope.
It is also kind of a slap in the face of the Judiciary. If the State of Texas is saying they won't waive a jury (and thus allow a plea without an agreed recommendation), they are, in essence, saying that they don't trust the Judge of the Court to do the right thing. That's an interesting and awkward statement to make. Seeing as how both District Attorney Devon Anderson and 1st Assistant Belinda Hill are both former judges, I'm somewhat surprised with this message being sent. I can't imagine either of them being happy with this policy change if they were still on the Bench.
The new policy does allow for prosecutors to agree to a Deferred Adjudication, as long as there is no jail time assessed as a condition. Well, that's nice and all, but the prosecutors don't have control over what conditions a Judge assesses on community supervision. They can say it all they want in their policy manual, but if a Judge has a plea entered for a Deferred, that Defendant is now at the Court's mercy. The State can't regulate that away.
So, what is the end result for this? My prediction is docket numbers shooting through the roof. If the State suddenly can't work out low-level drug cases, then the dockets are going to get clogged. I highly doubt that the D.A.'s Office will be agreeing to personal recognizance bonds while labs get sorted out. I also highly doubt that they will tell cops to get a warrant for these defendants only after getting their lab results in. They don't want to inconvenience the cops, after all.
In a discussion with some friends yesterday, someone a lot smarter than me came up with a pretty simple solution: waive your right to indictment and immediately ask for a jury trial on the first setting. Not all judges will give you a two week trial setting, but they should. After all, if the State of Texas by and through her District Attorney is saying that it won't waive a jury trial on these types of cases, shouldn't the Court accommodate them by providing a jury trial as soon as humanly possible?
Just a thought.
I know that the D.A.'s Office's heart was probably in the right place when they came up with this policy, but I just don't see it working out for very long.