Saturday, February 7, 2015

Pre-trial Diversion: Why Not, Brazos County?

UPDATE 09/20/2015 Read "Ranting About Pre-Trial Diversion in Brazos County" with updated information and statistics on why a developing a pre-trial diversion program for Possession of Marijuana less than 2 oz is good public policy idea in Brazos County.

ORIGINAL POST: I recently bemoaned the non-use of "cite and release" laws, particularly in prosecutions for possession of marijuana (POM) cases in my home (Brazos County). The solace for me is most counties in Texas are not using this legislative grant. This small comfort is absent in my home county's failure to utilize another, widely successful legislative grant in POM cases: Pretrial Intervention or Diversion (PTD) programs. PTD programs in one form or another are in use virtually all over the state of Texas - but not Brazos County.

PTD programs "divert" individuals who qualify into a program that if successfully completed result in dismissal of the criminal proceedings against them. This kind of program is ideally suited for Brazos County. There are tens of thousands of college students, primarily from Texas A&M and the Bryan campus of Blinn College who live here. Many partake in marijuana. The typical college defendant arrested for POM is found in possession of less than 5 grams. It happens here almost nightly.

A POM can impact anyone, but for the subset of defendants arrested for POM who are under 25 years of age, a PTD  program seems ideally suited.

Section 76.011 of the Texas Government Code grants authority to Community Supervision (Probation) Departments to establish these programs. Brazos County has none.

Our Probation Department, and the judges who are in charge of it have been in the news lately for reason unrelated to this post. The lack of a PTD program and the resulting loss of benefits for both the community and the defendant, at least in my view, is newsworthy.

In fairness, it is not the Probation Department that ultimately places defendants into such a program. Instead, it would fall to the prosecutors as well as the Probation Department to define eligibility and placement. In Brazos County, in misdemeanor marijuana cases, that means the Brazos County Attorney.

The neat thing about a PTD program is the flexibility. It can be used for some offenses, but not others. A pilot program would be the place to start. Defining who would be eligible is always the key, but  these issues have been confronted by other Texas counties using PTD programs. Find a county whose program has been successful and copy it.

The Texas juvenile system has had a form of PTD for many years. Section 53.03 of the Texas Family Code (The Juvenile Justice Code) labels it Deferred Prosecution, but it is nothing more than a PTD program for juveniles defendants. There are practical and legal differences, but the fact is Brazos County has been using PTD in juvenile settings for years. It is not a huge leap to implement such a program, already used by the Brazos County Juvenile Services Department, into the adult system.

Why not launch a pilot program applicable to an adult defendant with no prior criminal arrest record, and found in possession of misdemeanor amounts of marijuana? Currently, lawyers like me start testing our POM clients for marijuana every 30 days for around 6 months, put together a "Good Boy (Girl) Package" and lobby the prosecutors for dismissal of the POM and re-filing as a Class "C" Possession of Drug Paraphernalia, or Class "C" Attempted Possession of Marijuana.

This is a de facto PTD program, is it not? Unfortunately, it is a matter of getting to a lawyer who knows how to work the existing system instead of a defined set of eligibility requirements within the system itself. It should be available to all. If such a pilot program is as successful as I think it would be, it could be expanded. If it is the failure I cannot imagine, then it can be scrapped.

As a side note, Brazos County has a Drug Court Program which from my admittedly limited vantage point has exceeded expectations. Is it unreasonable to think a PTD program would not do the same?

The result? The community has rehabilitated citizens, the defendant can say the case was dismissed, and, if otherwise eligible, expunge the arrest if they chose. Prosecutors spend less time on cases diverted, revenues from the program flow and court time is more efficiently utilized.

It works. Why not, Brazos County?

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