Saturday, January 31, 2015

An Unworkable Drug Policy

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.


Anonymous said...

The same thing is happening in Bexar County. I've been told that TDCAA issued a memo saying that not getting lab results before a plea could violate the Michael Morton Act.

Anonymous said...

Then it seems logical the best manner in which to balance things out is to 1) more properly fund the sections of crime labs that deal with such, even if it means using forfeiture funds (the perfect use for such funds to begin with), and 2) make it clear that for any drug case less than a certain amount that doesn't involve violence should be given a personal recognizance bond no matter what the local bail bond lobby wants, and maybe even 3) consider decriminalizing personal use amounts of many drugs further while enhancing fines and sentences for crimes committed under their influence.

Anonymous said...

Well put, Murray. As an advocate for justice, I see where the State is coming from. However, it just seems there has to be a better way! Especially given the troubles with HPD's crime lab and now Pasadena's lab...

This system is getting more ridiculous by the day.

Lee said...

Perhaps the DA's office should determine what the substance actually is prior to filing charges......?

Ryan Patrick said...

From a totally different point of view, and not intending to be callous to the situation, but I am curious to see what the reaction is to this policy is from the budget people in the county. We all know that there has been increased pressure on the county jail population. On any given day, there are about 8,500 inmates in the county jail. Take out the inmates that are waiting for a trip to TDC (about 9%) and parole violators and inmates from the family courts (another 5%), then you have about 7,500 left over. Of that population, 75% are pretrial inmates, and of that 92% are felony pretrial inmates! The vast majority of people sitting in jail are inmates waiting for their case to be disposed. For an inmate not receiving any

Yes, I have never practiced criminal defense law, and do not know all of the dynamics of what goes on in the holdover, but defendants waive all sorts of rights everyday with pleas. Why is this one any different? Could one reason be that the writ process is different for someone on probation verses someone in custody? I don’t know.

Additionally, there is case law and footnotes in the pattern jury charge book that states the specific drug does not have to be plead, just that it is a controlled substance. So can a pleading change eliminate some of the issues? Add to that some recent case law on the "no controlled substance" writs that hint strongly that these are not all "actual innocence" claims because of the intent element to possess a controlled substance is present, which Murray references.

One final thought, case filings the past 4-5 years have been flat. As Harris County’s population continues to grow, the number of criminal filings has not. Yet, since I have taken the bench 2.5 years ago, the avg docket has increased 22%. Something is going to have to give somewhere.

-Ryan Patrick

Jason Truitt said...

"defendants waive all sorts of rights everyday with pleas. Why is this one any different?"

As a counter point, why would a Defendant be the one to carry that burden? If the State wants an efficient system, it needs to fund it. It needs more cops or more lab techs, or whatever. But that's on them.

I assume we all think wrongful convictions are bad. And of course, pleading to being in possession of something illegal while not actually being in possession of something illegal is a wrongful conviction. It's not a Kerry Max Cook or Michael Morton type of conviction, but pleading before the evidence comes in is still not something that someone should have to do just to get their case over and done with.

Lee at 12:04 has a good point. Why charge someone until you know what it is? I'm not saying let Pablo Escobar roam the streets until the lab results come back, but for the average personal-use guy, why not wait to file?

That would satisfy the budget people because the jail wouldn't be filling up as much, the writs wouldn't be as expensive because there would be fewer of them, and defendants could keep whatever job they may have without coming to court several times at the risk of forfeiting their bond and going to jail.

Otherwise, we should all realize that the system is inefficient, and that people who get put in jail and have bonds doubled because they showed up two minutes late to court in a building where the multiple settings create the problem, may not be guilty after all.

Has anyone spoken with the budget folks about bond practices in Harris County?

Keep the public safe (I never did see that bump in burglaries when Lykos stopped charging trace cases as felonies), while at the same time maintaining the integrity of the system by not expecting people to plead to a crime that may not have been committed.

I would think that's a fairly conservative policy--don't let the state take your liberty without proof of a crime. There's more to the Bill of Rights than the 2nd Amendment.

As a side note, I'm pretty pissed that I cited a Lykos policy.

Mike Trent said...

If you don't trust field tests or officer training enough to plead the cases, you shouldn't trust them enough to file them. As "Lee" mentioned, why incarcerate people if you harbor some legitimate doubt about their guilt?

The intent to possess a controlled substance does not matter, since currently the only prosecutable offenses involving "turkey dope" are delivery, not mere possession.

This was not well thought out.

Anonymous said...

Another wrinkle to this whole issue is not that there are no controlled substances found, but that it is a different controlled substance. Please correct me if I am wrong, but apparently, the field tests can throw the wrong positive for many of the new synthetic drugs. So I am also seeing writs where what they plead to is "the wrong" drug. Still a cs, same punishment range, but technically different than what is on the pleading.

-Ryan Patrick

Anonymous said...

I suppose they could file these cases as attempts and refile as possession/delivery once a lab report confirmed there were actual controlled substances.

Jason Truitt said...

Yet another reason to wait for the lab results to come in first, Judge Patrick. If you wait to file, you will take care of both the "wrong drug" writs and there "no drug" writs.

If you want, I'll go down and talk to the commissioners with you to ask for more funding for the drug labs so we can improve efficiency.

Anonymous said...

If you wait to file until test result is returned, the suspect will be released at the scene and a "To Be" warrant will be issued only after the test result which means the suspect will not be arrested unless he/she happens to be (come to think of it,that should be the genesis of the colloquial "To Be" language but it's not) stopped on traffic in the future. So in effect you would be giving amnesty to most drug users.

Anonymous said...

If an individual purchases what they believe to be a controlled substance then their intent is to possess a controlled substance and not to mention, took part in an illegal drug transaction. Furthermore, from the other point of view, when these victims of fraudulent drug transactions are held in custody for up to months in time, just to find that, chemically speaking, they can't be charged with possessing a controlled substance and therefore, they have then just been confined, punished and denied basic constitutional rights. What's the underlying agenda. Lock em all up and keep them locked up as long as they can, innocent or guilty. Fkd up

Jason Truitt said...

Anon 5:49, I'd be hard-pressed to find a greater leap in logic than your "amnesty" assertion.

Anonymous said...

I agree that this issue should absolutely not fall to the Defendant to waive all his rights away and plead guilty without a lab. If the State is going to bring charges against a guy, and then argue to keep him in jail instead of let him out on a PR bond, they should dang well believe they have a case. If they're too scared to let a guy plead guilty until they get a lab, they shouldn't file the charges until they know what they have.

I think there are a couple ways we can make it work. As has been mentioned, hire more lab techs. A guy shouldn't sit in jail for 6 weeks waiting for the State to produce the evidence they supposedly have against him. Or 2, agree to PR bonds. I have yet to see a DA agree to one except in extreme circumstances. And furthermore, there are plenty of judges I've NEVER seen grant one, especially if the guy has a criminal history. I'm continually amazed that people don't seem to feel one iota of uncomfortableness with keeping a person behind bars when they're unsure if they're actually guilty of a crime. Does that really not bother judges or DAs???? Until the prosecutors AND judges start to open their eyes to this unfairness (and maybe try to put themselves in someone else's shoes for once), nothing is going to change.

And I know the argument is that 95% of the time it's drugs. I don't care and neither should anyone else. If your one of the guys in the 5%, it's a big deal! And I promise it would be a big deal to any one of us, judges and DAs included, who sat in jail for 2 months only to be told it wasn't a drug after all and we could leave. Suddenly it seems like a pretty big deal, huh? When you're the guy sitting in jail for two months and you come out having lost your job, your apartment/house, your car, etc..., it matters! Do DA's and judges really not care at all about that??? And it's not a game of statistics. If it happens to .5 percent of inmates, that's enough to stop it. I don't know... I find the whole thing very disheartening.

Anonymous said...


It's 11:00 AM and Judge Pat, sitting in a secluded corner of the Char Bar, orders her 9th Jack with a splash of Coke. Thick plumes of cigarette smoke thankfully obscure her horrific image from the other alcoholics. She takes a long drag off the putrid butt of an unfiltered Camel and then lights another with the remnant……..
Wee man Jimmy slithers in through the back door of the Char Bar. His black velour pantsuit obscures his presence. Seething as he ruminates over his castration at the hands of the Troll, he unholsters his .22 short derringer. He wishes he was man enough to handle a more appropriate caliber, but appreciates his limitations. Trembling with anticipation, sweat dripping from every pore he is suddenly gripped with overwhelming fear. What if the Troll spots him before the lead in his little derringer is released? What if he misses a kill zone? What if his load is too small? Enough of what ifs he reassures himself. The Troll is going down. Little Jimmy turns, raises his wee weapon, aims it directly between the target's beady red eyes and squeezes the trigger. Click. It's a misfire. Jimmy fires the second barrel and a second click.

The Troll is passed out in a drunken stupor during Wee Man's feeble murder attempt and is none the wiser. Jimmy whimpers and tip toes out of the bar, noticed by no one.

What crime, if any has been committed?

Anonymous said...

Just ask for an examining trial, or am I the only one old enough to remember those?

Anonymous said...

4:08, dude, give it up already.

Anonymous said...

Mr. Truitt - I don't think Anon 5:49 has leaped as far in logic as you think. When a person is released at the scene and a warrant is issued later, the sheriff's office seldom seeks out the defendant due to manpower shortage. So the defendant could go through life without ever being arrested for that infraction unless stopped for something else.

Anonymous said...

Anonymous 4:08

Atrocious prose?

Anonymous said...

I suppose I'm missing something here, so please alert me to my error.

We're talking about drug users (these aren't people collecting drugs to display in their curio cabinets) who gave money to drug dealers for drugs, believe that they have drugs, got [legally] caught for the supposed-drugs they paid a drug dealer for, and, after viewing their situation, are willing to judicially confess to knowingly possessing drugs. And after all that, we're supposed to give a crap about the legitimacy of the product they confess to possessing?

Drug laws confront multiple evils. One is that drugs are dangerous and cause you to do dangerous things. If confronting this evil were the only harm drug laws addressed, then sending someone away on felony time for possessing powdered sugar (or whatever is used to make turkey dope) would be stupid. Of course, many things that are used for turkey dope may be more harmful than powdered sugar.

But another major evil we're confronting with drug laws is the overall drug economy and drug culture. The fact that our defendant couldn't get high and hurt himself off the powdered sugar he bought (let's assume he didn't buy anything more dangerous) doesn't mean that he's not contributing to the drug economy and the drug culture. He is absolutely doing those things. And he is a drug user who, if released immediately, will return to the streets to buy more drugs.

Having thought this through, I cannot bring myself to see any injustice in sending a turkey-dope possessor to prison so long as he believed he was buying real dope and judicially confessed. I'm not a huge believer in the drug war, but them's the laws we got. Using taxpayer money to test the substance when the defendant believes it is illegal and is willing to judicially confess that it's illegal seems like a waste of money. Following through on those tests with writs and reversed convictions is simply absurd.

Solution: "We know what you were trying to do, you know what you were trying to do, we caught you with the stuff you bought thinking it was dope. You plead out, we destroy it, it's never tested. You want to roll the dice that you got ripped off? Then we roll the dice: we test it and it's fake, you go home; we test it and it's real and we hammer you."

And, Anon 4:08: Attempted murder. I suppose I'm missing something there as well?

Anon 4:08 said...

Anon 9:31,

Title 4: Inchoate Offense
Chapter 15: Criminal Attempt
§ 15.01. CRIMINAL ATTEMPT. (a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to
effect the commission of the offense intended.
(d) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class A misdemeanor.

Inchoate - "referring to something which has begun but has not been completed, either an activity or some object which is incomplete."

The law would appear to mean that someone is guilty of criminal attempt if he or she does more than simply plan the act of murder but actually tries to commit the act and fails to achieve their goal. If someone is found guilty of criminal attempt for the crime of murder, he or she would receive the sentence of manslaughter since that would be one category lower than murder.

However, if the proverbial tree falls in the woods but nobody heard it did it make any actionable noise?

Anon 12:19,

Show me what you got.

Anon 9:22,

You're scary.

Anonymous said...

I agree with you completely. As Shakespeare said, "it's much ado about nothing". Another Shakespearean solution would be, "first, let's kill all the lawyers". (But not you Murray!)

We've gotten tangled up in legal semantics and lost all common sense.

Anonymous said...

Anyone have any idea how this will apply to misdemeanor cases, such as some pill cases and to MJ cases?

Jason Truitt said...

"Another Shakespearean solution would be, "first, let's kill all the lawyers". (But not you Murray!)"

This is actually a compliment for lawyers. So, to not kill Murray would be to say that he was complicit in overthrowing the government (which was the goal of the speaker--how do we overthrow a government? First--kill all the lawyers).

Anonymous said...

I like the examining trial idea for those defendants that don't make bond but what about the ones who are out on bond? If State dismisses because it won't be ready for the examining trial but later gets an indictment after the lab is done then the defendant has to post another bond.