Kim Ogg at a press conference outside the Harris County courthouse last December.
Kim Ogg at a press conference outside the Harris County courthouse last December.
Photo by Meagan Flynn

Harris County DA Stops Prosecuting Drug Cases Involving Minuscule Amounts

The Harris County District Attorney's Office has stopped prosecuting cases involving minuscule amounts of drugs — often referred to as "trace cases" — in order to prioritize more substantial crimes and make better use of resources, District Attorney Kim Ogg told the Houston Press Tuesday.

These are cases in which cops find drug residue left on pipes or other paraphernalia, for example, or crumbs of cocaine so small that the substance cannot be formally tested, let alone used to get high. Ending the prosecution of these cases had been a centerpiece of Ogg's drug-reform campaign promises in both 2014, when she lost to former DA Devon Anderson, and throughout her successful 2016 bid. The policy has quietly been in effect since the last week of July, though there have been no formal office-wide memo or written changes, Ogg said. Only prosecutors who accept or reject charges at the intake division were specifically notified.

"It’s been a point of contention with most Houstonians who don’t appear to agree that it’s a wise use of taxpayer dollars to prosecute people in possession of empty crack pipes that contain drug residue," Ogg said. "And while not all the cases follow that example, many, many do. There were approximately 2,000 to 4,000 per year."

Ogg said the catalyst for the policy change was law enforcement's decision in mid-July to stop using controversial roadside field tests to determine if substances were drugs — a departure from standard police practices across the country. Houston and Harris County law enforcement stopped using the tests not because they are notorious for producing false positives and leading to wrongful convictions, but because the opioid epidemic had reached Houston, bringing extremely dangerous drugs such as fentanyl onto the streets. Even coming into contact with a tiny amount of fentanyl can prove fatal, and so using the roadside field tests and touching suspicious substances became a safety issue for police.

That posed a problem for residue cases.

"By eliminating field tests — which were never considered consistent or the best evidence to begin with — we weren’t able to make probable cause on residue cases, where officers can’t see the contraband in the instrument or baggie it’s in," Ogg said. "If it’s a traditional residue case, if the officer really can’t see the drugs and be able to say with some certainty based on his expertise what they are, the [intake division] rejects the charges."

After police across the county stopped using the field tests, Ogg said magistrates were rejecting probable cause in residue or trace cases about 50 percent of the time. At that point, the field-test changes had only been in effect for a couple of weeks. 

"When I saw how high the dismissal rate was on trace cases, that was the last straw," she said. "I never felt the system had adequate resources to be focused on these types of cases, but with the additional inability to make probable cause on them without endangering officers’ lives [through field tests], I thought it would be best to end them."

Ogg is not the first district attorney in Harris County to enact this policy. Back in the 2000s, at the height of the war on drugs, former DA Pat Lykos also campaigned on the promise to end the prosecution of cases involving less than 1/100th of a gram of drugs as felonies and instead treat them as misdemeanors. Throughout that decade, hundreds of innocent people had pleaded guilty to drug possession — presumably just to get out of jail because they couldn't afford bail — only for lab results to come back months or years later showing the substances in their possession weren't even drugs.

Once taking office, Lykos eventually followed through on her campaign promise in 2012 — only for her successor, Mike Anderson, to reverse the policy in 2013 in the name of being tough on crime. After his death later that year, his wife, Devon Anderson, took over and continued to prosecute the so-called trace cases.

"That’s what's particularly important, is you have to remember the history of our county: One thing many other Texas counties have never done is prosecute what we would consider trace cases," said Nick Hughes, an attorney with the Harris County Public Defender's Office. "People who are particularly at risk of being wrongfully convicted for possession a controlled substance are almost always the people who are accused of possessing less than a gram. That’s the stuff you find on the floorboards, on the seats, where they're just really reaching to make a prosecution, and it’s particularly dangerous right now when we're not testing drugs with field tests."

When Lykos initially changed course in Harris County, the Houston Police Officers Union was acutely critical of Lykos's decision to be softer on suspected drug users. President Ray Hunt had said back then that Lykos's policy change amounted to ignoring the law.

Today, Hunt said the police union is not 100 percent in support of Ogg's decision, but that he will stand behind her as long as her office cracks down on car burglars and people committing violent crimes and gives them harsh punishments.

"We made it completely clear to the DA's office that we're not going to make a big deal about this as long as these people who break into cars, which we believe are the big crack users, that when we catch them, they're hammered and they're not given slaps on the hand," Hunt said. "If we're saving the space in the jail to put these people away for months if not years, then we're not as concerned about [Ogg's new policy]. We know who's breaking into cars — we believe it's those people — so let's attack the people breaking into cars instead of attacking the people who are trace cases."

This is the second major drug reform of Ogg's tenure. In March she stopped prosecuting misdemeanor marijuana possession cases in favor of offering a diversion program.

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