 November
20, 2006 - Houston Chronicle (TX)
Judge Calls For Easing Of Drug Penalty
Citing Felony Docket Loads, He Asks Perry To Cut Sentences
For Minor Possession
By Bill Murphy
State District Judge Michael McSpadden once believed that
long sentences would deter drug sales and drug use.
But after more than two decades hearing felony cases in Harris
County, the former prosecutor is calling on the governor and
Legislature to reduce sentences for low-level drug possession.
"These minor offenses are now overwhelming every felony
docket, and the courts necessarily spend less time on the more
important, violent crimes," he recently wrote to Gov. Rick
Perry.
Nearly twice as many defendants in Harris County were sent
to state jails last year for possessing less than 1 gram of a
drug than in Dallas, Tarrant and Bexar counties combined.
McSpadden recommended making delivering or possessing a small
amount of drugs a Class A misdemeanor carrying no more than a
year in county jail.
Gov. Rick Perry is aware that bills may be submitted in the
upcoming legislative session that call for reducing penalties
for possessing small amounts of drugs or drug residue, said Kathy
Walt, the governor's spokeswoman.
"He is willing to look at anything that the Legislature
presents him, and he wants to hear the debate in the Legislature
about the pros and cons of the issue," she said.
The judge said the Houston Police Department and District
Attorney's Office are clogging court dockets and causing crowding
in the county jail and state jails by bringing so many drug-possession
cases against those found with pipe residue or a sugar packet's
worth of cocaine.
But District Attorney Chuck Rosenthal said state law makes
no distinction between residue and up to a gram of a drug. Under
state law, a person caught with either should be charged with
possession of less than 1 gram, he said.
"That's what the law says we should do," he said.
"We don't get to make the facts. We don't get to change
the law."
Police officials and County Commissioner El Franco Lee said
McSpadden is oversimplifying a complex problem. HPD goes after
low-level dealers and buyers when neighbors complain that they
cannot go outside because there is an open-air drug market or
a parade of addicts buying drugs from a store or home.
"I guarantee you there are more of my constituents who
want their property protected and want more police on the streets
than there are people complaining about the nature of the charges
brought against those arrested in their neighborhoods,"
Lee said.
Fears Retaliation
In the dozens of apartment complexes that dot the Fondren
area in southwest Houston, many law-abiding residents know nothing
of the policy debate over whether low-level drug offenders should
be charged with drug possession or a lesser crime. But they know
fear firsthand.
"There are gunshots going all night. The security guard
would sit in his car all night. He was afraid to get out,"
said a part-owner of an apartment complex on West Airport. She
requested anonymity because she fears retaliation.
The owners took steps to make the complex secure, installing
lights at the rear of the property and repairing a fence. Drug
dealers shot out the lights and made new holes in the fence to
make sales, she said.
As for her investment, "I can't sell it because it's
30 percent empty," she said. "The good people are moving
out."
Crack-residue cases are a way of addressing a neighborhood's
needs, said HPD officer Jason Streety.
"Even little frivolous charges are a good way to get
those causing problems off the street," he said. "In
a high-crime area, you gotta take what you can get."
HPD Executive Assistant Chief Mike Thaler said narcotics or
other special units may target a park or a basketball court if
neighbors have complained that drug sales are occurring there.
Police will try to arrest dealers and users, who sometimes are
charged with drug possession for having a pipe with crack residue.
Incarcerating thousands of drug offenders convicted of possessing
less than 1 gram of a drug is expensive. It cost more than $59
million to hold more than 4,800 such prisoners in state jails
last year, based on Texas Department of Criminal Justice figures.
Commissioners Court is mulling over building two jails for
at least $267 million because current jails are overcrowded.
On some days, as many as 800 people are in county jail awaiting
trial or serving time for low-level drug charges, said sheriff's
department Chief Deputy Mike Smith.
Last year, 1,869 of 4,418 offenders serving time in state
jail for committing offenses in Harris County were convicted
of possession of less than 1 gram of a drug.
Not included in these statistics are hundreds of low-level
drug offenders who were in Harris County jail awaiting trial
or who cut deals, pleaded guilty and served county jail time.
Little Deterrence
McSpadden, a Republican not known for being anti-police or
anti-prosecution, estimated that more than half the cases for
possession of less than a gram of a drug in his court are crack-residue
cases. The county and state do not keep records on whether a
drug case stems from possession of residue.
Those caught with crack pipes should be charged with possession
of drug paraphernalia, a Class A misdemeanor - not drug possession,
McSpadden said. People convicted of carrying crack pipes can
be fined $500 and put on probation.
Possession of less than 1 gram of a drug is a felony that
often lands people in state jail for six months to two years.
McSpadden said prison and jail sentences aren't good deterrents.
"Unfortunately, it is obvious that the demand for drugs
will not diminish, no matter what the consequences are,"
he wrote Perry. "I changed my mind a few years ago when
it was obvious the 'war on drugs' was a complete failure and
should be considered as symbolic at best."
McSpadden asked Perry to work with state lawmakers in reducing
the sentences for low-level drug-possession offenses.
Perry spokeswoman Walt said the governor supports creating
drug courts, believing that they have a better record of preventing
future drug use among addicts. But those who violated drug laws
should be prosecuted, she said.
Continued Prosecution
McSpadden says the HPD is trying to pad drug-arrest statistics
and make itself look good in the eyes of the City Council.
Rosenthal said prosecutors have debated whether residue cases
should be handled as paraphernalia cases. At the end of these
discussions, Rosenthal decided they would continue to be prosecuted
as possession cases.
He said some prosecutors argued that HPD officers working
extra hours to tackle drug problems in a neighborhood "pick
the lowest hanging fruit" and arrest low-level drug offenders
to justify overtime.
Thaler denied his officers had that motivation.
"The real objective is to make people feel safer. There
are areas that feel under siege," he said. "People
feel uncomfortable, and they can't go to the park because dealers
are selling drugs. We are trying to maintain order."
McSpadden said HPD could get addicts off the street by charging
them with possession of paraphernalia.
The judge and the district attorney do agree that drug courts
appear to be more successful than prison sentences in helping
addicts stay off drugs.
Three state district courts in Harris County serve as drug
courts. Judges in any of the state district courts can refer
addicts to these courts if the addict makes a case he or she
wants to beat the habit.
In the drug courts, addicts can plead guilty and get treatment
and intensive social services while under supervision.
McSpadden and Rosenthal said more money should go to creating
additional drug courts.
Contact Bill Murphy at bill.murphy@chron.com
Back to Dissenting Opinions
of Judges
If you have a Dissenting Opinion of a Federal or State Judge,
please mail or e-mail a copy to:
November Coalition
282 West Astor
Colville, WA 99114
(509) 684-1550
editor@november.org
|
