Under State Law, Local Cops Don't Have to Jail You for Pot

On a hot Saturday afternoon this weekend, dozens of people mostly wearing green descended on the Harris County criminal court building on Franklin Street to deliver a pretty straightforward message: They are tired of seeing people go to jail for possessing a plant.

Among them was an epileptic woman who has suffered seizures most of her life, who was simply asking for access to alternative medicine. There was a nurse who has dealt with inexplicable bouts of nausea for most of her life, whose unlikely cure became marijuana. And a Navy veteran who had been raped repeatedly for four years at a Florida military base in the late 1970s, who has suffered severe post-traumatic stress disorder ever since.

"I've always been a law-abiding citizen," said the veteran, Romana Harrison, who had to stop using medical marijuana after she moved from California to Houston for a specialized treatment program. "So being considered a criminal here is enraging."

Their Marijuana March was one of many taking place across the globe, organized here in Houston by the local chapter of the National Organization for the Reform of Marijuana Laws. The marchers were asking for legalization, though as Houston NORML director Cara Bonin told us, decriminalization is the first step in that direction. And that’s something that local criminal justice officials have total control over.

In Harris County, District Attorney Devon Anderson’s efforts to decriminalize weed have not gone unnoticed. In February, the Houston NAACP gave her an award for her First Chance Intervention Program, a diversion program for first-time, low-level marijuana offenders that lets them off the hook in exchange for three months of community service and staying clean. Although the program had a rocky start, in January, Anderson made it mandatory for law enforcement in Harris County to offer the program to people before throwing them in jail, as many were doing before.

But while many local officials agree that the program has its merits, Mayor Sylvester Turner’s criminal justice transition team recently pointed out a much bigger marijuana-policy reform that, for some reason, Harris County law enforcement and many other jurisdictions across the state have chosen not to take advantage of.

In 2007, the state legislature passed a bill that granted all police officers in Texas the authority to cite and release people accused of certain Class A and B misdemeanors, among them the possession of less than four ounces of weed, criminal mischief, theft of $750 or less, and driving with an invalid license. It’s just like giving someone a ticket and a court date, as opposed to booking the person into jail and sometimes leaving him there for weeks until he finally goes before a judge because he can’t make bail.

“Cite and release means those people keep their jobs,” said attorney Kathryn Kase with the Texas Defender Service, who served on the transition team and who originally recommended including cite in release in the team’s report. “There’s more likelihood they’ll be able to stay employed, get the money they need to pay off any fines, and [taxpayers] also won’t have to pay the money to house them in the jail.”

However, for some reason, even after Harris County criminal justice officials just spent months brainstorming ideas to reduce the jail population as part of a proposal for a $2 million MacArthur grant, implementing cite and release, which wouldn't cost officials anything and would likely reduce the jail population by thousands, appeared nowhere in the county's plans.

Anderson had agreed to answer our questions as to why that is, or why she believes First Chance is a better program than the option that's been on the books for nine years; however, we did not hear back by press time. (We also did not hear back from the Harris County Sheriff’s Office.) 

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On the city level, Alison Brock, Mayor Turner’s chief of staff, said Turner is open to cite and release; after all, he did vote for it in the Lege back in 2007. Kase said that when they presented him the recommendations, which include hiring a police chief who will support cite and release as well, his face lit up — he hadn’t forgotten. Which has led her and the criminal justice transition team to believe that, if there were ever a time to successfully implement cite and release, this would be it.

In the past, Kase said, the will to do this simply wasn't there. Former police chief Charles McClelland had once spoken out against jailing people for low-level marijuana offenses, though it's unclear why he never directed his officers to take advantage of cite and release. Kase also said she never had any luck convincing former mayor Annise Parker to hop on board.

“It just went nowhere. She kept saying, ‘Well, this is a public safety issue,’” Kase said. “Well, these are non-violent crimes — this is not a public safety issue. What this really is, is a misuse of scarce criminal justice resources.”

Like the marijuana marchers at the courthouse, Kase doesn’t believe that First Chance Intervention, while a good step forward, is doing much to help solve that problem. For one, it is available only to those charged with possession of less than two ounces for the first time, leaving out scores of others who perhaps were caught with 2.6 ounces and must in turn bear the consequences of a stay in jail. For some, it may last weeks: A recent study found that 25 percent of people detained pretrial in Harris County could not afford to pay $500 or less to make bail. That’s a problem cite and release could help fix, Kase said.

As the November election approaches, marijuana policy will feature prominently in the race for district attorney. Anderson’s opponent is Democrat Kim Ogg, who in the past has supported cite and release, but, in her platform this year, says she would stop prosecuting misdemeanor marijuana cases altogether. That’s why Cara Bonin with Houston NORML says that group is endorsing Ogg.  They need a local law enforcement leader, she said, who will formally come out and say that she sees no benefit in continuing to jail people for possessing a plant.

“It’s not the plant that’s the problem. It’s the law,” Bonin said. “There’s nothing that plant can do to someone’s body worse than what that arrest will do to their life.”

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