Under Texas law, if you are convicted of marijuana possession, even for as little as two ounces, you may face jail time. If you are a repeat offender, that possibility edges closer to certainty. If you are lucky enough to avoid jail, you may still have to pass urine screens, attend drug education classes, perform community service and pay court fines. And even if you fully comply, a record of the incident still exists. This can be a problem if you want to be a lawyer or doctor or hope to work for the government. You can be turned down for a federal loan or barred from subsidized housing. You could also lose custody of your child.
In the current campaign for Harris County district attorney, both incumbent D.A. Devon Anderson and challenger Kim Ogg have not only proposed to change the way marijuana use is handled by that office, but have also made the issue a centerpiece of their campaigns.
Ogg, a former prosecutor — who led Houston’s Anti-Gang Task Force and served as executive director of Crime Stoppers — acted first, proposing the Government Resource Allocation/Criminal Exemption (GRACE) program at a press conference on July 25, 2014. Under this plan, individuals found in possession of up to four ounces of marijuana, whether they’re first-time or repeat offenders, will be cited and released; they will be given a ticket, told when to appear in court and let go. No jail, no bail. When they appear in court to answer the charge, they will be offered the GRACE program. If they choose to participate, they will be required to clean up trash from Houston’s bayous and waterways for two days. If they complete this requirement within two weeks the case against them will be dismissed, leaving no trace of their offense. If they choose not to accept GRACE, they will be subject to the penalties currently in place, which include probation, jail time, a fine and a permanent criminal record.
District Attorney Anderson countered soon afterward by announcing she was working on a new approach. In early October, she made good on that promise by instituting a six-month pilot trial of the First Chance Intervention Program, which applies only to first-time offenders found in possession of two ounces or less of marijuana. To successfully complete the program and have the record of their offense expunged, individuals must pay a $100 fine and complete either a 60-day program with eight hours of community service or a 90-day program with an eight-hour class. According to the fact sheet distributed by the D.A.’s office, the accused person will be transported to a police substation, identified, fingerprinted and, if eligible, released from custody after agreeing to contact pretrial services within three days to initiate the program. If offenders do not complete the program, the D.A. will press charges.
Both of these proposals are welcome advances to what come before, but compared with Ogg’s proposal, Anderson’s new policy is unnecessarily complex and limited. Only two law enforcement jurisdictions in Harris County, the Houston Policy Department and the Harris County Sheriff’s Department, are using the program. The implication that individuals will avoid jail and a criminal record does not apply to persons arrested by constables or by police in any of the 33 cities in the county other Houston. According to the D.A.’s office, these individuals will be charged, taken to jail and then offered the program in court — quite different treatment depending on which law enforcement agency they encounter. Ogg’s plan follows the “Cite and Release” law that the Texas Legislature passed with overwhelming approval in 2007. Because of this legislative basis, her plan can be implemented countywide and is more straightforward and predictable than Anderson’s pilot program.
Ogg’s plan is also more inclusive — and therefore more effective — because it applies to repeat offenders and to individuals with both Class A (two to four ounces) and Class B (two ounces or less) misdemeanor marijuana offenses. Anderson’s policy applies only to first-time offenders. Many first offenders found with small amounts of marijuana already have alternatives to jail. The majority of marijuana offenders serving time have multiple convictions, so a program that excludes these individuals will do little to reduce the jail population. Because of its wider application, Ogg’s plan would save the city more money, keep more people out of crowded jails and free more law-enforcement resources to target more serious crimes.
Ogg’s plan is the better choice because it is simple, follows the law, and would make better use of law-enforcement resources.
Note: A side-by-side analysis of the two plans can be found here.
Katharine A. Neill, Ph.D., is the Alfred C. Glassell III Postdoctoral Fellow in Drug Policy at the Baker Institute. Her current research focuses on state sentencing policies for drug offenders and the legalization of medical and recreational marijuana. Neill’s other research interests include criminal justice policy, the private prison industry and the use of public-private partnerships to deliver public services.