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Majority of Pot Offenders Still Being Jailed, Charged Despite Leniency Program

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In October 2014, Harris County District Attorney Devon Anderson launched the First Chance Intervention Program to give first-time marijuana offenders a break. Instead of spending time in jail and picking up a drug charge, they could do community service or take an eight-hour class. At the time, Anderson said the new initiative was intended to help people avoid losing employment or housing because of a simple class B misdemeanor marijuana possession charge.

But of the 1,959 people who were offered the program since its start, 80 percent of them were offered First Chance after they had already been charged and booked into the jail, which in turn negates some of the central goals of the program: avoiding a criminal charge and jail time. And even though the charge would be dismissed if the person accepted the program, it still stays on his or her record for at least one year.

“Law enforcement is denying it to them—they’re arresting them and charging them,” said Jason Miller, executive director of the National Organization for the Reform of Marijuana Laws' Houston Chapter, which recently uncovered this problem. “Then when it gets to the DA, the DA says, ‘Well, this person is eligible. We’re going to offer it to them in court.’”

Jeff McShan, a spokesman for Harris County District Attorney’s Office, said there are two reasons this is happening. The first is that only the Houston Police Department and Harris County Sheriff’s Office were participating in the program pre-charge; for all other Harris County agencies, the program called for offering it in court instead. As of September 14, five other agencies have signed on to offer the program the way it was intended, and come October, McShan promised many more will be participating.

But still, even just within HPD and HSCO, first-time marijuana offenders were only being offered the program before the charge 60 percent of the time. This happens, McShan said, because individual arresting officers were just choosing not to participate. “They were either not comfortable with the program at first or didn’t know about it for some reason,” McShan said. 

McShan could not provide specific reasons for why officers might deny an eligible person the diversion program. According to HSCO policy guidelines, an onsite supervisor can choose to deny the program to eligible offenders "when deemed appropriate." Or, in other words, when an officer doesn't want to. "It basically gives full discretion to police to go ahead and charge someone," Miller said, "even if the point of the program is to not charge them."

But to address the education problem, at least, McShan said they put together a training video that will be played during officers’ roll calls. They’re expecting better officer awareness to solve the post-charge problem. At some point, McShan said the DA’s Office is considering expanding the program for low-level, first-time shoplifters. They'd also like to see officers using portable fingerprinting machines at the site of the arrest so that they don’t even need to bring the person to jail at all, as long as they agree to the program. "Maybe it wakes you up, maybe it doesn’t," he said. "But hopefully we can get it off people's records."

Despite the large amount of First Chance Intervention participants who picked up the charge, the DA's Office was still pleased with the 81 percent success rate among those who completed the program, McShan said. That success rate, however, doesn't account for any people who lost housing or jobs within the year that the charge stayed on their record. In reality, only 351 people avoided charges and jail time. 

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