To Texas Criminal Justice Coalition Project Attorney Jay Jenkins, Harris County's jail diversion program for potheads is good — but not good enough.
In October 2014, the Harris County District Attorney's Office launched the First Chance Intervention Program, which gives first-time pot offenders (class B misdemeanor only) the option of community service instead of jail and charges. And since then, Harris County District Attorney Devon Anderson has touted its success. Almost 90 percent have successfully completed the program — that's almost 2,000 offenders since October 2014.
There have been some issues with the program's rollout, however. Some 80 percent of people in the program were offered it only post-charge and had already spent time in jail — thus defeating the main purpose of the program. And Jenkins says that eligibility criteria are too strict and still keep too many people in jail. He says that a true jail diversion program should accomplish two things: for offenders, eliminate the life-altering consequences of picking up charges and, for taxpayers, save millions of dollars spent on putting nonviolent people in jail.
In a report released yesterday by Rice University's Baker Institute for Public Policy, Jenkins and Katharine A. Neill, a postdoctoral fellow in drug policy, make the case for expanding this diversion program to repeat marijuana offenders, low-level theft charges and felony drug charges for possession of trace amounts. Just by expanding to repeat marijuana offenders and theft charges, the report estimates, Harris County could save roughly $3.5 million a year. To expand it to those caught with amounts of cocaine and other controlled substances that could fit into a sugar packet, Jenkins says, taxpayer savings rise to roughly $80 million a year.
Jenkins argues "it's a massive waste" to jail people on low-level drug offenses. “And there's no reason to limit it to first-time offenders — there's no evidentiary route to base it on that other than preference," he said. "The bottom line is, it's prime time for the district attorney's office to declare victory and expand options. There's no excuse.”
The report, and the First Chance Intervention Program itself, drew inspiration from Seattle's diversion program, called LEAD, which is extended to all individuals charged with possession of less than three grams of controlled substances. By comparison, First Chance in Harris County is offered only to pot offenders caught with less than two ounces. In Seattle, law enforcement works together with case managers to ensure that program participants can get the help they need if they're struggling with addiction, which has substantially reduced recidivism rates. “The foundation of the program is, you don't come to this realization about addiction because you go to jail,” Jenkins said. “It's a very individual process.”
And even if Harris County didn't want to look like softies by expanding the diversion program to these drug offenders, the report notes that the county could still save about $100,000 per day if it simply started prosecuting trace-amount cases as misdemeanors instead of state-jail felonies. In fact, prior to 2011, during Pat Lykos's tenure as district attorney, Lykos did choose to prosecute drug cases involving less than 1/100th of a gram as misdemeanors — which was immediately reversed once Mike Anderson succeeded her.
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But because felonies automatically carry much higher bond amounts, many offenders can't afford to make bond, and so they sit in jail awaiting their trial without having been convicted of any crime. Many are waiting on drug tests that will determine whether they are guilty, which can take a month or more. And because Harris County had an embarrassingly high number of drug charge exonerations in 2014 (30), Anderson made it a policy that none of these offenders can plead guilty to get out of jail sooner until their drug test comes back. Meanwhile, over in jail, many risk losing jobs, housing or scholarships.
Jenkins said that the only people this new policy benefited are those at the DA's Office, who wouldn't have to go through the trouble of issuing exonerations. While some offenders who truly may have turned up not guilty are saved from picking up that conviction, Jenkins said they shouldn't have been sitting in jail in the first place. His new report states that being incarcerated for any length of time can decrease yearly earnings by 40 percent.
The DA's Office has said in the past that it would be open to expanding the diversion program to other charges. Most recently, spokesperson Jeff McShan told the Houston Press that the office was looking into expanding First Chance Intervention to low-level theft charges. He also explained that the reason so many were being offered the program after already being charged was that law enforcement has either been uncomfortable with the program or not aware it. There's a little "exception" clause in the policy that allows officers to deny the program to eligible offenders using their own discretion — though it's unclear what reasons would lead them to do that.
Jenkins said that "exception" would have to be booted completely for the program to start working efficiently. If law enforcement is going to temporarily jail offenders only for the DA to offer them the diversion program later, at roughly $75 per day to house an inmate plus $250 to book him, that's a lot of money that won't go toward saving $80 million.