The unintended consequences of a campaign pledge

Back when the late Mike Anderson was running for DA against incumbent Pat Lykos he attacked her over and over again for her decision not to try so-called trace cases. Under the Lykos administration, if someone were arrested for possessing less than .01 grams of cocaine, the case was either dismissed or the defendant was offered a plea to a paraphernalia case.

There were a multitude of reasons for the policy. First, if there was less than .01 grams of residue, there wasn't enough for both the state and the defense to test the sample. Second, during her 2008 campaign, Ms. Lykos said the criminal (in)justice system couldn't cure every problem and that some folks were better off seeking treatment for their addictions. Third, the Harris County Jail was full to the gills and the county was having to lease jail space in other counties in Texas as well as in Louisiana. 

The situation was untenable. Not that Chuck Rosenthal and his team of true believers gave a second thought to the consequences of their actions.

Well Ms. Lykos wasn't part of the good ol' boy network so she had to go. Mike Anderson took up the banner of Holmes worship and pledged to undo everything that Ms. Lykos had done in office. One of his promises was to start prosecuting trace cases as felonies once again. The police and true believers thought the rapture had come and Mr. Anderson was swept into office.

Once there Mr. Anderson began the process of changing office policy. No longer would the Harris County District Attorney's Office go soft on those wrongdoers who had less than .01 grams of drug residue on their person. Nope. If you give them a break, the next thing you know someone else is going to want some leniency on some other crime. Damn that slippery slope!

Under Mike Anderson's watch, trace cases were prosecuted as felonies but defendants were offered so-called 12.44a sentences. That designation refers to a provision in the penal code that allows the court to assess misdemeanor punishment on state jail felony convictions.

And so, predictably, the inmate population in the Harris County Jail began to creep higher toward full capacity. Someone was going to have to to do something quick. The voters had already nixed the idea of issuing bonds to build a fourth jail downtown. County commissioners weren't keen on the idea of spending money to house inmates in other counties.

Interim District Attorney Devon Anderson, the widow of Mike Anderson, acknowledges there is a problem -- something that Mr. Anderson never did. Of course she told the Criminal Justice Coordinating Council that she wasn't worried about filing felony charges against folks possessing less than .01 grams of cocaine. She, on the other hand, was worried about the number of defendants who were punished under Section 12.44a of the Penal Code. She said she was concerned about the number of first time offenders who were now walking around with felony drug convictions.

She said she preferred treatment to incarceration. But she never said she was opposed to prosecuting the cases as felonies. And there's the disconnect.

If you charge folks with a felony and they can't post bond, the attorneys appointed to plead them out are going to try either to get the charges reduced to misdemeanors or, at worst, to get the prosecutor to offer county time for a felony conviction under 12.44a. Folks who are out on bond for a trace case are unlikely to go to prison or jail in exchange for a plea (though there are exceptions). They'll take their felony deferred or probation and walk on out of the courthouse.

Such pleas are rarely offered to someone sitting in the holdover - unless they are willing to put up a fight on their case. Besides, the folks who can't post bond tend to have backgrounds and live in circumstances that make them bad risks for probation.

Ms. Anderson points to her background as a drug court judge (before getting booted out of office in 2008) - but y'all already know my opinion of drug courts. The criminal (in)justice system does a very poor job of reducing addiction. Those who suffer from addiction are going to fall off the tracks from time-to-time on their way to recovery. When they do suffer a relapse, treatment and counseling - not prosecution - is the answer. 

Our courts operate in an adversarial environment. The theory is that the truth (or something vaguely resembling it) will emerge though two parties telling competing stories. When one side rolls over and plays dead - or, in the parlance of the specialty courts, works as part of a team - the adversarial system doesn't work as planned and the defendant is always the one getting jobbed.

The answer to reducing the county's jail population isn't to prosecute trace cases, the answer is to make treatment available for those who want it - regardless of their ability to pay. Drug addiction is a public health issue - not a criminal issue - and until we begin to treat it as such, we will never make any headway in reducing the problem.