Sunday, January 25, 2015

Wasted Time, Money and Resources in Brazos County, TX

I have not been in a position of making policy and never will be. Yet nearly thirty years of law practice have given me a perspective on certain policy issues involving criminal justice. Tip O'Neill, the late former Speaker of the U.S. House of Representatives, is credited with the quip that "All politics is local." If this be true, it would be wrong to criticize criminal justice policy everywhere but in the place where I live.

On two particular criminal justice issues, local Brazos County, Texas officials are ignoring tools given them by the Texas Legislature that would save local taxpayers, prosecutors, law enforcement and, yes, defendants many thousands of dollars. My county is not unique in Texas by ignoring these tools, but it could actually lead from the front if key elected officials would open their minds to the possibility. If minimal attempts were made to quantify the savings, not to mention fairness, other mid-sized counties would follow.

Brazos County is unique demographically. As I have written before, more than 50,000 college students live in our environs, making individuals under 30 years of age more than a quarter of our total population of around 200,000. They are a tribe to themselves, not unlike other large college towns around the country: Athens, Georgia, Oxford, Mississippi, and State College, Pennsylvania. They are away from their parents for the first time in their lives and, unfortunately, I typically interact with them in one of two criminal justice settings: an arrest for marijuana or driving while intoxicated. 

Marijuana is what I want to focus on. The typical Possession of Marijuana (POM) case that walks into my office involves less than three grams. POM less than two ounces is a Class B misdemeanor in Texas punishable up to six months in county and a $2000 fine. POM more than two ounces, but less than four ounces is a Class A misdemeanor, with double the possible jail time and fine. 

I want to put those weights in into perspective. Two ounces of marijuana is equal to almost
57 grams. Yes, you read that right. A engineering student at Texas A&M University busted with a joint with a gram of marijuana is facing the same range of punishment as another person arrested with 55 grams of the same stuff. 

A gram is the equivalent of that package of sugar substitute you use at your favorite restaurant. In terms of weight it is the same as a a couple of paper clips.

I do not make laws, the legislature does. I use this phrase all the time to college students and their parents. I work hard to get the person, regardless of who they are, a deal that wold result in eligibility for expunction of their POM arrest. This most often means attempting to get their POM case dismissed. This can be done in a variety of ways, not important to this post. Sometimes, also for a variety of reasons, dismissal does not happen. 

 The dirty secret is they did not need to be arrested at all. Law on the books in Texas for almost a decade now allow law enforcement in my county (and any county in Texas) the authority to NOT arrest these cases, but instead to issue a citation to the defendant and release them. 

Let me illustrate this by hypothetical, one occurring almost every night where I live: Police officer encounters a  college student in a car that is stopped for speeding. The police officer smells marijuana, and asks the student if they've been smoking pot. The student admits smoking and directs the officer to the gram of weed he has in the console of his car, along with a pipe they brought along to consume the evil weed. 

College student is then arrested and charged with POM, less than 2 oz. and Possession of Drug
Paraphernalia, a Class C fine only offense. College student is taken to the police station or the county jail, sometimes both, eventually to make bail, usually in an amount of $2000-3000, which will cost him, his friends or parents around $300 if a bondsman is involved. Then, because they are a college student and concerned how the arrest will damage their future employment prospects, they come hire me or someone like me. We then endeavor to get the POM case dismissed so the college student is eligible to expunge the arrest under Texas law.

The arresting officer will be off the streets, transporting and filling out arrest paperwork for several hours, taking up the bulk of their shift.  

But here's the deal: The arrest never had to happen. 

Article 14.06 of the Texas Code of Criminal Procedure allows a peace officer in certain offenses to not arrest, but to  issue a citation with a specific time and location to appear before a magistrate. This section applies not only to small amount POM, the section also applies to Class A POM  - that is almost 104 grams (!!!) for goodness sake - but also other high volume non-violent crimes: 
  • Marijuana possession, (up to 4 oz)
  • Criminal mischief with less than $500 damage
  • Graffiti with less than $500 damage
  • Theft by check with less than $500 stolen
  • Theft of service with less than $500 stolen
  • Contraband in a corrections facility (B misd. only)
  • Driving With an Invalid License
When I read about jail overcrowding, counties diverting funds and increased hiring of peace officers, I think of the time, money and resources wasted because this law is not utilized. None of these mentioned issue are currently on the table in my county, but Nueces County and Kerr County are currently on track, or have voiced a desire to build new jails. I do not know the particulars of those counties, but it does not matter. I am not a fiscal expert, but I recognize a savings opportunity when I see it. Especially in College Station, home of TAMU, where I live. 

Here are some statistics: According to the Marijuana Policy Almanac, in 2007 (the latest data I could find), Brazos County ranked 91st out of 242 counties statewide in arrests per 100,000 residents. That puts us squarely near the middle of the per capita pack. When those same marijuana arrests are normed for individuals under 30 years of age, things change. For those aged 19-24 Brazos County was in the 38th percentile. For those aged 25-30 years of age, Brazos County was in the 13th  percentile for arrests. Not surprising given our college aged demographic. 

It should be noted, however, these statistics are from a website dedicated to marijuana reform (The Bulletin of Cannabis Reform), and are more than seven years old. Regardless of whether you partake in these stats or not, my message is we are wasting resources by arresting POM cases involving small, personal use amounts. This does not consider Driving With an Invalid License arrests which are even more problematic and costly. 

I had someone tell me the local bail bondsmen's profit margin is made primarily off bonds for college kids on DWI and POM arrests. "Yeah, they charge $300 a pop for these college kids who ALWAYS show up for court." That's the deal. My point is not to beat up on bondsmen doing their jobs, mainly because I am in the same boat. My point instead is the people making money off these arrests are people like me, criminal defense lawyers as well as bondsmen. 

The people who lose? The defendant who now has an arrest for an offense that he could have been cited for and my community, who loses the police officer's time while he babysits a kid who could have had been cited, released and ordered to appear before a judge instead of arrested.

I will write separately about pre-trial diversion and pre-trial intervention programs authorized by section 76.011 of the Texas Government Code. It is another cost saving, common sense program not used in Brazos County. Like cite and release, it would reap benefits that far outweigh the costs. 

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