Saturday, September 19, 2015

Ranting About Pre-Trial Diversion in Brazos County TX

I listened to Harris County District Attorney Devon Anderson discuss Possession of Marijuana (POM) and pre-trial diversion programs this week. Anderson was part of a panel taped in August at the State Bar of Texas Advanced Criminal Law Program. Anderson's most memorable comments concerned Harris County's First Chance Intervention Program - a pre-trial intervention program for Possession of Marijuana (POM) cases. Anderson's comments underscore the folly with which we handle POM in Brazos County Texas.

Anderson's justification for diverting POM to a non-criminal track? Try this on for size:
The program recognizes the principle that first-time offenders who commit low-level, non-violent offenses are often self-correcting, without the need for more formal and costly criminal justice intervention. It also frees up law enforcement, jail, prosecution and court resources that would otherwise be expended in the arrest and prosecution of the offender.
What about this is bad public policy? Anderson was even more persuasive when articulating the success of the program. She observed that law enforcement and a number of prosecutors were skeptical of the program when it first came online in October, 2014. A year later, Anderson says, initial skeptics have become believers. So much so that now all law enforcement agencies in Harris County are participating.

Law enforcement is critical because, as I understand the program, they determine eligibility on initial contact in the field. Once eligibility is determined, participants are cited and then released with instructions to contact Harris County pre-trial services within the time limits below.

Paying attention Brazos County? We need this program, or one modeled after it. In Brazos County there are currently somewhere between 50,000-60,000 college students. Many in this population love toking on marijuana yet are the very essence of the self correcting population of which Anderson speaks.

The following comes straight off the Program's above linked website. Eligibility for the Harris County program is as follows:
  • The individual is detained or arrested for possession of marijuana, 2 ounces or less;
  • Possesses sufficient identifying information;
  • Has no additional charges out of the instant detention/arrest (other than Class C tickets);
  • Has no outstanding warrants or holds (including Class C charges);
  • Has no criminal convictions as an adult (Class B offense or greater);
  • Has never received probation or deferred adjudication (Class B offense or greater);
  • Is not currently on bond, deferred adjudication or probation (Class B offense or greater);
  • Has not participated in this program or another pretrial intervention program.
This is what is required in the program:
Contact Pretrial Services within 3 business days of his/her arrest and schedule an intake appointment
        Appear at Pretrial Services for an intake interview and a short assessment
       Participate for 60 or 90 days*, during which time the offender must:
                    (1) Not break the law
                    (2) Pay a non-refundable $100 program fee (may be reduced or waived if indigent)
                    (3) Complete either 8 hours of community service or an 8-hour cognitive class*

                  *Program length (60 or 90 days) and program requirement (community service or                                 cognitive class) are determined at the intake interview

Think this is too light on program requirements? Make it more difficult, perhaps. The point is the merits of the program for Brazos County are identical to the merits in Harris County: Save law enforcement, court, prosecutor and probation office resources while saving defendants, who will be pulling the societal wagon in the near future, from a criminal record.

Want more data? Here are some statistics for Brazos County misdemeanor prosecutions for calendar year 2014. They are sourced from the Texas Office of Court Administration, and part of my blog post published. February, 2014. I have set out the POM new case filings in bold below:
Brazos County Jan. 1, 2014-Dec. 31, 2014:
New Cases Filed: DWI: 600 POM: 954 DWLI: 1033
Total of All New Cases Filed: 4,622
954 of a total of 4622 new cases filed in 2014 were POM cases. That means a little less than 1 of every 5 new misdemeanor filing in 2014 was a POM case. Admittedly, not every POM defendant would be eligible for the program. However, given Brazos County's college aged demographic it is probably a safe bet that over half (perhaps close to 75%) of those Brazos County defendants would be eligible using Harris County's eligibility criteria. Taking a conservative 50% POM diversion eligibility rate, this translates in a full 10% of the Brazos County misdemeanor docket disappearing overnight.

Wrap your head around that Brazos County Commissioners Court and County Attorney. Want significant taxpayer savings while achieving laudable public policy goals? It can be done in a matter of weeks.

Why not, Brazos County?

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