Houston-based marijuana offender program helps many but falls short
A Houston-based first time marijuana offender program has helped many during its first 11 months, but has fallen short of its goals, most notably as being underutilized.
After a fierce battle in 2014 between incumbent Harris County District Attorney Devon Anderson and Democratic challenger Kim Ogg where the subject of marijuana policy played a prominent role as each attempted to stake out a position of diverting marijuana offenders from jail and a criminal record, preliminary results are in on the new program which was established during Anderson’s re-election.
Using the state’s Cite and Release law which was passed in 2007, Anderson’s plan called for allowing first time offenders caught with less than two ounces to enter into a program which requires drug treatment classes and community service. Her program is also optional, meaning that law enforcement agencies are not required to participate.
The Houston chapter of the National Organization for the Reform of Marijuana Laws (Houston NORML) recently obtained data from the district attorney’s office to analyze the effectiveness of the program during its first 11 months.
It was found that 81.5 percent of participants successfully completed the program, however only 19 percent avoided jail time. Due to the program being optional, only 2 of the county’s 50 law enforcement agencies are participating, and in most cases, officers are choosing to arrest offenders rather than cite and release them.
Those agencies include both the Houston Police Department and Harris County Sheriff’s Office.
When the program was implemented in October 2014 it was done as a pilot program, which made it optional. For those arrested by a non-participating agency, the program is later offered in court by the district attorney’s office. Out of the 1867 total participants, 404 came through the Houston Police Department while 465 are from the Harris County Sheriff’s Office, for a total of 869.
However, the two agencies only follow the program 61 percent of the time. During the 11 month span from the program’s inception, they have handled 591 cases.
Houston NORML splits offenders arrested by the two participating agencies into two groups, the first being pre-charge, meaning no arrest is made, and post-charge, meaning they go through a standard booking procedure and are jailed.
For the 361 offenders considered “pre-charge” the arresting officer acknowledges the accused person’s eligibility for the program. Instead of a traditional arrest for the offense, the individual is transported to a police substation, identified and fingerprinted via AFIS (Automated Fingerprint Identification System), and signs a program notice form agreeing to contact Pretrial Services within 3 business days and initiate the program. They are then released, usually within just a few hours of the initial encounter. The individual is not booked into jail, doesn’t have to spend the night in a cell, and doesn’t have to bond out. After a quick assessment with Pretrial Services, they are offered the program as an agreement with the district attorney. As long as the program is completed successfully, no formal criminal charge is ever filed.
The remaining 230 are considered “post-charge” where the arresting officer does not acknowledge the accused person’s eligibility for the program, instead arresting the individual and booking them into jail. This results in an immediate arrest record and mug shot. Bond is set and the individual has to stay the night in a jail cell. The individual usually will spend one to five days in jail depending on how long it takes them to bond out. A formal criminal charge is filed against the person for the offense. The district attorney’s office will later offer the first chance intervention program once they appear in court. The program is offered as an agreement for the charge to be dismissed upon completion of the program. The records related to the arrest, charge, and dismissal can be expunged after one year, typically with the services of a lawyer.
Everyone who successfully completed the program ended up avoiding a criminal record.
While in early August Anderson stated that the program would expand to all 50 agencies, so far that has not occurred.
Anderson also announced a new pilot program that Houston Chief of Police Charles McClelland has agreed to in which his department will begin using “portable AFIS machines.” She explained this as “meaning they will have them in their patrol car. They will be able to release the offender at the scene. There will be no transport to the substation. Where you are arrested is where you will be released if you qualify for the program.”
McClelland was quoted in 2014 as saying that drug prohibition has been a failed public policy.
Offenders still face major consequences however for possessing small amounts of marijuana.
Houston NORML states “The fact that a person avoids a conviction or deferred adjudication does not mean they do not suffer consequences from a criminal accusation. In 81 percent of cases in which the person is jailed and charged, they spend hours and sometimes days in a jail cell. They miss school or work. They can be fired from their jobs. If their car is impounded, they must pay large tow and storage fees. They are charged with a crime. Even if the charge is later dismissed it will stay on their record for at least 1 year.”
The group says racial disparities still exist as well.
According to a report by the ACLU, Harris County had the sixth highest amount of Black arrests for marijuana possession in the nation, at 5,320 arrests making up 44.9 percent of all Harris County arrests in 2010.
The racial breakdown for the 1867 participants in the program from October 6, 2014 through August 20, 2015 was 36 percent Hispanic, 31 percent Black, 29 percent White, and 1 percent each for Asian, Multiracial, and Unknown. Census data shows that Harris County’s population is 41.6 percent Hispanic, 31 percent White, 19.5 percent Black, 6.8 percent Asian, and 1.7 percent Multiracial.
A survey performed in 2014 by KHOU – Houston Public Media showed 62 percent of Harris County residents in favor of decriminalizing marijuana, with 29 percent opposed, and eight percent undecided.