"As the Texas Legislature begins its session, a Houston judge is again arguing to end jail time for criminals caught with small amounts of cocaine and crack, but this time he has the support of 15 colleagues."

Details.

If SJF drug cases become misdemeanors, the shift in workload from district to county courts at law would be substantial. In selfish terms, a DA with only felony jurisdiction (like myself) would suddenly have an enormous percentage of the caseload moved off the docket. A county attorney with only misdemeanor jurisdiction (such as my colleague in Williamson County) would suddenly find herself with lots of new cases.

This would be an extraordinary movement of resources for no reason other than someone deciding to reclassify the crime from felony to misdemeanor. Punishment would require county dollars (in county jail) rather than state dollars (in state jail).

It also would set aside considerable debate and careful discussion that occurred in 1991-93 by the Texas Punishment Standards Commission and the Legislature in creating the state jail felony largely for the purpose of redirecting low-level drugs cases to certain punishment and access to treatment, including in-patient treatment in SAFPF's. (How many of you remember that before 1994, a SJF POCS was prosecuted as a second degree felony and a SJF DCS was prosecuted as a first degree felony? Now, that was some decriminalization -- supported by prosecutors.)

Setting aside the philosophical considerations, the systemic changes would be crushing. It would be the biggest unfunded mandate ever perpetrated by the Texas Legislature.

Glad to hear that the new DA in Harris County is not jumping on the bandwagon.

But, John, do the State Jails still provide the originally promised rehabilitation programs and alternatives? The big push behind the State Jail system, and having no good time or parole issues, was so that the inmates were able to access programs that might help them stave off recidivism. I remember that we were supposed to send them off for set periods that would allow them ample time to complete the rehab and education programs. When was the last time we heard anything about that?

I'm not ready to advocate shifting the burden to county jails, but I think the ball got dropped on the original intent of the State Jail system when leaner budgets came around.

Dan, you are dead right about state jails. The State abandoned its promise to fund treatment and programs in state jails. But, it has remained steady on its promise to provide confinement beds for low-level, nonviolent property and drug offenders in exchange for shorter sentences that keep prison beds open for the longer-sentenced, more violent offenders.

There have been some attempts to weaken that agreement. But, so far, the essential agreement has remained steady.

Shifting tens of thousand of state jail felony drug cases to misdemeanor court would be a serious abandonment of the remainder of that promise. It would be the ultimate criminal justice bait and switch.

And, by the way, district judges already have the ability to make these drugs cases misdemeanors through application of section 12.44, Penal Code. But, they need the consent of a prosecutor to make that happen under subsection(b). So, maybe the real motive here is to lighten the caseload and dump an entire class of cases on some other entity. No, that couldn't be true, right?

Sec. 12.44. REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT.
(a) A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.
(b) At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.

Looks like Hominy still reads TDCAA's User Forum. He reads my thread above as a worry over losing jurisdiction over drug cases (click here to his post).

That's a misread of what I intended to say. I was simply implying that I could rather selfishly support the proposed change and suddenly lighten my own docket considerably. I don't think I said that I would really, really hate to lose ownership of all those drug cases. It's a lot of work and distraction.

On the other hand, when they go off the district court docket and on the misdemeanor docket, why does anyone think something magic will happen and all those cases will get easier or have better results? That is the sort of wishful liberal thinking that says decriminalization is an end that is justified by any means.

The reality is that the felony status of a drug offense is what signals strong social disapproval of the use or distribution of that drug. Decriminalization says society just doesn't really care and encourages use and distribution.

And Oatmeal quickly gives away that real goal by noting that dropping felony drug cases to misdemeanors would give even greater weight to the argument that other drug offenses could be dropped even further (i.e. make marihuana a ticket offense). Ah, there we go. The curtain is pulled away.

As for the notion that felony drug cases create ongoing collateral consequences (e.g. employement and housing issues), well the Legislature has made strides in resolving that problem. Deferred adjudication and subsequent orders of nondisclosure were designed to keep that information nonpublic once the defendant has proven himself rehabilitated. (A recent DPS study revealed that many of those people do commit new crimes, but that's a debate for another day.) Shortened probation and early termination laws have reduced the impact of drug cases on the system. Heck, Ham and Eggs has been singing the praises of those changes on his website.

I have no problem improving how we take drug abusers and help them toward rehabilitation. If you bother to look at the statistics, WC places drug abusers on probation at the same rate or better than most counties. Increased access to drug treatment is a big part of that solution. Minimizing the long-term impact of a felony on a successful probationer is a good goal. But, abandoning felony prosecution altogether strikes me as a social goal that promotes a different agenda entirely.

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First drunken driving offense shouldn't be crime, Van Hollen says
By Steven Walters of the Journal Sentinel

Posted: Jan. 16, 2009

Madison - Attorney General J.B. Van Hollen said Friday that he opposes making first-offense drunken driving a crime and would like state law changed to give judges the option of sentencing second-time offenders to probation rather than mandatory jail time.

Wisconsin is the only state that treats first-offense drunken driving as a forfeiture - and that law should "absolutely not" be changed to make it a crime, said Van Hollen.

"There are a great number of people - people I know personally - who have first offenses," Van Hollen said. "I don't consider them criminals, and I wouldn't want them to be tagged that way for the rest of their lives for having made what can legitimately be called a mistake."

Wisconsin used to treat first-offense drunken driving as a crime, but it was smart to make it a civil violation, Van Hollen said.


Link to full story: First drunken driving offense shouldn't be crime, Van Hollen says

"...for what can legitimately be called a mistake."

I'm getting sick of hearing the word "mistake" applied to those who make conscious choices to engage in behavior and conduct themselves in a manner that threatens innocent lives and, in many cases, takes them. I wonder what the AG would say if one of his friends killed someone while DWI and had never been caught DWI.

Sorry your son/daughter/mother/father is dead, but it was a "mistake", my friend's not a criminal.

The choice of operating a vehicle while intoxicated really is a voluntary act made after deliberation. Anyone walking to their car after having had a couple of beers has that deliberative thought go through their head ("Am I OK to drive?"). So, no, it is not a "mistake" to drive while intoxicated, first time or subsequent.

I really can't think of any other crime that has had such a lengthy public education component ("Don't Drink and Drive"). Smoking comes close, but smoking tobacco per se is not a crime.

Given the access to information through school classes, public service announcements, signs, etc., one would think that we would stop pretending the decision to drive drunk is a "mistake" born of ignorance. But, the crime really does cut across social lines.

The rich, important, and famous can and do commit this crime. Naturally, their children do, too. So, there is a strong resistance to having the crime actually enforced with uniformity. When you throw in the fact that public officials, particularly those with some influence in the creation and enforcement of laws, also are more likely to violate this law than others, it is not surprising to see that there is a resistance to changing the law to make it easier to catch and prosecute those who violate it.

This attitude only changes for those rich, famous, important or elected officials who somehow experience in a close and personal way the horror of death or serious injury associated with a DWI accident. Then, the danger is driven to a personal level and it suddenly matters more.

Prosecutors experience that horror on a regular basis by visiting with families who have lost children or victims with lasting injuries that leave them limbless or struggling to return to a normal life. We have a duty to communicate that horror to the Legislature.

quote:

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Originally posted by JB:
Smoking comes close, but smoking tobacco per se is not a crime.

---

... yet.

One reason why people might label DWI as a 'mistake' is that it is hard for a person to know whether or not they are legally intoxicated or at the point where their driving is impaired.

That is why I personally do not drink at all when I know that I am driving. And maybe someday there will be a portable breath-a-lizer in a car that has to be used before it starts.

But until then people have to rely upon their own guess-timates to know whether or not they are too drunk to drive.

The felony drunks that we prosecute generally have intoxication levels 2 and 3 times the legal limit. No reasonable person would have to guess at that level that he or she was intoxicated.

R-Smith,

You say the word mistake is used because it is hard for a person to know when to drive. This doesn't seem the right way to think about it.

If you head to your multi-ton vehicle capable of traveling at significant speeds and inflicting vast injury, damage, and death unless operated correctly, then you should think about your faculties.

If you are not sure, if you are doubtful, if you even suspect that you may be impaired--Don't Drive.

After years of public education, news stories about tragedy, discussions in schools, and other efforts of motivated groups to discuss this problem, its awfully hard for someone to claim they didn't know driving when they are unsure of their abilities after drinking was dangerous.

I wouldn't wield any other deadly weapon without a great deal of caution and thought and never without all my faculties. Why would I treat a car differently?

I'm not a really big fan of the idea that every county has to do it the same, either. Different counties have different goals and problems, where those juries and elected officials focus, and forcing every county of every size across the state to take on more drug cases because the Houston felony docket is full of them is definitely not the best plan.

Having recently worked as a misdemeanor prosecutor only, I would have really popped someone with a dangerous controlled substance and been less likely to give probation--I didn't see many of those in my former small county and would have felt that my community would have been opposed to going easy on that level of drugs coming into the county. I can guarantee my juries would not have been sympathetic whatsoever had these cases gone to trial and would have given jail time as well. So it would just add costs to the county system, as mentioned above!

SAFPF won't take misdemeanor probationers, so the options for in-patient treatment are even less in the misdemeanor world.

By Alan Trubow | Wednesday, January 21, 2009, 09:53 AM

In his first public comments since his arrest on a drunken-driving charge, Texas baseball coach Augie Garrido admitted this morning that he had "made a mistake."

From the Austin American Spaceman: