In its annual report released this week, the National Registry of Exonerations highlights a troubling oddity of the criminal justice system that's become more visible in Harris County than perhaps anywhere else in the country: People convicted of drug crimes in cases where there's no evidence of a controlled substance.
Back in October, the Houston Press received copies of hundreds of notices the Harris County District Attorney's Office sent out to defendants who'd pleaded guilty to drug offenses, telling them that forensic lab reports ultimately showed they were "convicted in error." In some of those cases, testing showed a lesser quantity of the drug than they were convicted for (the difference between, say, class A and class B misdemeanor possession). But in many of those cases, lab reports simply showed there was no controlled substance whatsoever.
The report from the National Registry shows that in 2014, Texas recorded more exonerations than any other state because of these drug cases in Harris County. In all, Texas saw 39 exonerations last year, 33 of which were drug crime exonerations in Harris County (New York, the second on the list, saw 17 total exonerations last year). Those drug crime exonerations made 2014 a record-breaking year for the registry - it recorded 125 exonerations nationally for 2014, compared to 91 in 2013.
The Harris County DA's office says that in the past there was no central system or consistent protocol for handling such drug cases -- they'd essentially been divvied up to prosecutors who handled cases in the courts where the convictions took place, and most cases were never resolved. By the spring of 2014, however, the DA's office began to realize the full gravity of the problem, that hundreds of cases could be implicated by negative lab reports that were never sent to defendants or entered in court since prosecutors had already scored a guilty plea. The DA's post-conviction review section ultimately connected with the Harris County Public Defender's Office to "clean up the files," DA's spokesman Jeff McShan told us last year.
While high-profile DNA exonerations continue inspire gut-wrenching stories of murder defendants languishing in prison for years for crimes they didn't commit, these cases of drug convictions without drugs cast an uneasy shadow over a more routine part of the criminal justice system that touches a lot more people. Last year, the public defender's office told us they'd seen at least 350 of these cases, some of which stretch back to about 2004. Meaning that over the past decade, in just one county, hundreds of people were arrested and convicted who either had no drugs at all or were carrying such minuscule amounts that forensic lab testing couldn't even prove they had drugs.
It's unclear how some of these cases could ever be resolved and made right. Some of the no-controlled substance letters the DA's office sent out list local homeless shelters as a defendant's address. Given how old some of the convictions are, it's likely some defendants have since left the county or state.
All of this begs the question: why are people pleading guilty to drug crimes when they don't have drugs? Last year when we spoke with Nicolas Hughes, an assistant public defender who's been tasked with handling the Harris County cases, he offered up a couple of explanations. Some defendants probably thought they had drugs when they didn't. Others, even if they knew they were innocent, might have had criminal records and couldn't post the high bail, so they took a plea bargain that got them out of jail quickly, even with a drug conviction.
"A lot of the times the client is indigent, and the client's in jail, and they can't afford the bond," Hughes told us a couple of months ago. "So if you're sitting there in jail and they're making you a take-it-or-leave-it offer, some people might find that hard to turn down."
Hughes also offered this bit of insight:
"I can tell you I've had some cases where people have categorically denied that they had drugs, or at least that's what they told me. ... But I understand that there's a lot of pressure. Even a good trial lawyer could say, 'Look I believe you, but it's gonna have to go to trial, and it's going to take this amount of time to get there, and we're going to have to test the controlled substance and that's going to take time.' Sometimes you abandon the principle to get home to your family."
Last year when we talked to Hughes, he offered up a couple of ways to safeguard against these lesser-known types of wrongful convictions (admittedly long-shots, he says, because there's virtually no political will to protect drug defendants winding through the courts). If cops are going to make arrests for a simple drug crimes, like a trace cases, there should be some policy in place that police adequately test the substance before making an arrest. Hughes also said granting personal bond in more non-violent drug cases could reduce the pressure defendants feel to plead quickly, even if there are problems in the case or they swear their innocence.
"These are people clogging up the jails, needlessly in a lot of cases," Hughes told us. "They're people who shouldn't have been convicted."
And according to the folks at the National Registry of Exonerations, the Harris County drug cases might signal a deeper, festering problem within the system. Here's what they wrote in their report:
"[T]here's a larger problem that's much less tractable: What about innocent defendants in non-drug cases who plead guilty to misdemeanors and comparatively light felonies - assault, shop lifting, breaking and entering - in order to avoid pretrial detention and the risk of long terms of imprisonment after trial? Or innocent drug defendants who plead guilty to possession of actual illegal drugs that belonged to someone else? There is no cheap, reliable test for guilt or innocence in those cases. Very few such convictions ever result in exoneration, but the number of false convictions involved could dwarf the total for serious felonies."