Bayou City

Not Having $150 "No. 1 Reason" Nearly 300 Have Failed Marijuana Diversion Program

The pro-marijuana community — and criminal-justice reform advocates — whooped and raved when Harris County District Attorney Kim Ogg dropped the bombshell announcement that her administration would stop prosecuting misdemeanor marijuana cases. Instead, all that suspected pot smokers (and possessors) would have to do is stay out of trouble for three months and complete a four-hour decision-making class in that time period, and the case would go away.

More than 1,600 people have benefited from this diversion program since it went into effect in March, which the DA's office anticipates has saved Harris County taxpayers countless tax dollars by diverting those folks away from the court system and has saved hundreds of young people from the destabilizing effects of jail. But as of late, the DA's office has been wondering: Why is it that so many of them — 282 people, or 18 percent of all participants — have failed to complete the so-called Cognitive Decision Making class?

Is it because they were gonna go to class, but then they got high?

Maybe — but mostly no. According to the DA's office chief of staff, Vivian King, the "No. 1 one reason" people have failed to take the class is that they said they just didn't have the $150 to pay for it.

King said the DA's office had been reminding people to come to the class — held every Saturday — with texts, emails and phone calls. Summer interns were in charge of making the calls, King said, and when they reached the offenders, many of them would tell the interns that they hadn't finished compiling the $150. Many had wondered whether a payment plan was possible. It's not, at least for now.

What is possible, however, is waiving the fee entirely if the person claims to be indigent. On the informational form that police give to offenders in lieu of arresting them, it clearly states that "if you are indigent and cannot pay, contact Harris County Community Corrections & Supervision Dept." To be considered indigent in Harris County, your income must be 200 percent of the federal poverty line, depending on family size. Anyone on public assistance automatically qualifies as indigent, the DA's office said.

King referred the Houston Press to the county corrections department to inquire about how many people have actually taken advantage of this waiver, but the marijuana diversion coordinator was out of the office and unable to assist. (We will update this story if we hear back from him.)

For context, an 18 percent failure rate within the marijuana diversion program is not particularly unusual. Former Harris County DA Devon Anderson's diversion program, called First Chance Intervention, had a similar failure rate after nearly a year. In September 2015, 18.5 percent of people had failed to complete the terms of First Chance, which was offered only to first-time offenders caught with possession of less than two ounces of marijuana. The case would disappear if the defendant successfully completed an eight-hour class or community service within a three-month period. While at that time more than 1,900 people had supposedly benefited from Anderson's program, the Houston Press and Houston NORML discovered that more than 80 percent of them were offered the program after they were already charged with a crime and jailed, defeating the program's central goal. The problem was largely due to giving officers unchecked discretion to deny the program to people.

Following the discovery, Anderson announced that starting in January 2016, all cops would begin offering First Chance pre-charge. But Ogg nevertheless criticized Anderson's program for being too narrow throughout her 2016 campaign against Anderson, and Ogg made expanding marijuana diversion to all misdemeanor marijuana offenders (unless caught in a school zone or with intent to deliver, among other exceptions) a key promise. She estimated that it would save Harris County taxpayers $26 million per year — the costs to arrest, jail and prosecute 8,000 to 10,000 stoners.

King said that at an upcoming meeting, the administration plans to discuss what to do about all the people hard up on cash, and whether to offer payment plans in the future. So far no one has been charged, but King anticipated that warrants for arrest would be going out to the 282 who failed to complete the program.
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Meagan Flynn is a staff writer at the Houston Press who, despite covering criminal justice and other political squabbles in Harris County, drinks only one small cup of coffee per day.
Contact: Meagan Flynn