Some law agencies evade weed policy
Defense lawyers criticize disparity in referrals to diversion program
When Harris County District Attorney Kim Ogg created a misdemeanor marijuana diversion program last year, she envisioned a countywide initiative that would save law enforcement officers and prosecutors time and resources.
It would also help nonviolent, low-level marijuana users stay out of jail and keep the arrest off their record, a campaign promise Ogg made to reduce the roughly 10,000 annual misdemeanor arrests in Harris County.
But in some jurisdictions across the county, especially along Galveston Bay, those who are eligible for the program are never offered the chance to participate, according to a Houston Chronicle analysis of the program.
Twelve police agencies out of 61 in Harris County have not referred anyone to the diversion program, including Seabrook, Nassau Bay, Friendswood, Morgans Point and Lakeview.
“There’s a disparity in how law enforcement
is dealing with a policy that has been in place for a year,” said defense attorney Tristan LeGrande, who has a client waiting to go to trial on a misdemeanor charge of possession of paraphernalia after being caught with marijuana in Seabrook. “You’re going to be treated differently depending on the uniform of the officer who pulls you over.”
LeGrande said he believes the prevalence of noncompliance in small municipalities along the Gulf Coast is an effort to raise revenue.
“If a (Department of Public Safety) officer pulls you over on a highway in Seabrook, he’s not going to follow the Seabrook policy, he’s going to follow the Harris County policy,” LeGrande said. “The smaller the municipality, the more likely they are not to institute the policy because they want to make sure they get the money, not Harris County.”
DPS troopers in Harris County have sent more than 350 referrals to the district attorney’s office, the third most of any law enforcement agency. As of Jan. 10, the Houston Police Department referred 927 people to the program. The Precinct 4 Constable’s Office sent 429, and the Sheriff ’s Office referred 342.
‘Up to the officer’
By ignoring Ogg’s marijuana diversion program and instead filing a citation for possession of paraphernalia, the law enforcement agency can funnel cases to small municipal courts instead of diverting suspects out of the criminal justice system.
Police chiefs with three law enforcement agencies confirmed that when they catch suspects with a small amount of marijuana, the suspect is charged with a class C misdemeanor of possession of paraphernalia for the container the marijuana is in. Then the case is sent to their municipal courts.
One chief said he is ignoring the policy.
“Before the DA’s office created their deferment program, we were filing cases of small quantities with our city courts under paraphernalia,” Lakeview Chief Tom Savage said in an emailed response. “It did not make any sense for us to take a defendant all the way downtown (to the Harris County jail) to file on them for two joints. This would also cut our staffing in half for approximately three hours. We have continued to utilize our city courts since it works for us.”
Advocates of the marijuana diversion program, including Ogg, said the initiative was developed to keep officers from having to transport suspects downtown or anywhere. Instead, under the program, the officer is expected to cite the suspect, confiscate the marijuana and continue on patrol. The suspect must agree to take a four-hour class on decision-making at a cost of $150. If the class is completed within 90 days, the charge goes away and no official arrest record or court record is ever created.
Seabrook Chief Sean Wright said his officers have discretion about what charge to file. Although none of them has referred anyone to the program, Wright said there is not an official position on whether or not to use the diversion program.
“It’s really up to the officer on what charges he files,” Wright said. “We fully comply with any mandates handed down by Harris County.”
Nassau Bay’s police chief said his department had one large marijuana arrest last year — 6.6 ounces on June 21 — which was over the 4-ounce limit to be eligible for the program.
“Other than that we have had eight or nine Class C citations issued for possession of drug paraphernalia filed in municipal court in 2017,” said Kenneth Campbell. “To my knowledge we are not actively circumventing the program. I did remind my sergeants to again review the program with our officers.”
Mark Smith, the police chief with the Port Authority, said his agency did not detain anyone who was eligible for the program. He said his department primarily arrests workers who have open warrants for other felonies.
“People come here, and they don’t get in a lot of trouble,” Smith said. “They do their job, then they leave and get in trouble.”
Police officials in Friendswood did not respond to requests for comment. The city of Friendswood straddles the border between Harris and Galveston counties.
‘Get on with their lives’
Earlier this month, Ogg issued a warning to offenders who have not completed the four-hour class that they must get it done by March 1.
“People have an opportunity to complete this class and get on with their lives,” she said.
Ogg said the program saves the county about $27 million annually — funds that can be redirected toward fighting violent crimes and other offenses.
Since the program began in March 2017, it has drawn 3,209 participants, according to the district attorney’s office, and 1,415 people had completed the program as of Jan. 11. There were 978 people who were within their 90-day period to complete it, and 816 people who failed to complete the class on time.
At a recent Wednesday night class on the fourth floor of the county’s downtown jail administration building at 49 San Jacinto, 20 out of 21 participants arrived on time to participate in group activities. They learned to use a cost-benefits analysis matrix to consider the short-term and long-term effects on their decisions. One woman arrived almost an hour after the four-hour class began and was sent to reschedule her class. None of the participants commented on the class afterward.
Asked about the law enforcement agencies that do not appear to be participating, Ogg said police officers have the discretion to file the charges they deem appropriate, but she hopes cooperation will mean more time and resources for police to go after violent criminals.
“Officers have long had discretion in how they handle misdemeanor drug arrests,” Ogg said in an email. “This is a collaborative effort to better spend taxpayers’ money, including combating robbers, rapists and murders . ... The program holds offenders accountable and provides them a way to avoid criminal records that disqualifies them from job, housing and educational opportunities. It also keeps more officers on the streets to keep the public safe.”
Few referrals
Analysis of the diversion program’s records also shows that some of Harris County’s educational institutions are not referring anyone.
Rice University, Texas Southern University and Lone Star College system are three of the area’s largest college systems, and their police departments have not referred anyone to the program.
Kendrick Callis, a spokesperson with TSU, said the university is participating in the plan and participated in an earlier pilot program under former District Attorney Devon Anderson.
“We have not had any incidents that have met the criteria of District Attorney Kim Ogg’s plan thus far,” Callis said.
Paul Willingham, chief of the Lone Star College Police Department, said his department has likewise not had any misdemeanor marijuana cases since the program began.
Rice University officials did not respond to requests for comment.
Among those colleges and universities that referred suspects to the program included the University of Houston, the University of St. Thomas and Houston Baptist University.
Most of the area’s independent school districts, such as the Houston, Aldine, Alief and CypressFairbanks ISDs, have referred suspects to the program. Others, like Galena Park, are not listed because their security is handled by officers with one of the constable’s offices, so their referrals fall under the constable office’s statistics.
Goose Creek Consolidated ISD’s police department did not have any referrals to the program and did not return calls for comment.
‘Purposefully defying’
LeGrande and other defense lawyers said the agencies that choose not to refer anyone to the program are thwarting the intent of the district attorney’s program and treating Harris County residents differently than they would be treated anywhere else in the county.
“For them to say they have a choice about whether to charge them with either the marijuana or the paraphernalia is disingenuous because they would only do that in the circumstance where the diversion program is in place,” LeGrande said. “I think it’s offensive that they’re purposefully defying the policy.”
Tucker Graves, president of the Harris County Criminal Lawyers Association, said small municipalities have a financial incentive to bring people to court who otherwise would not have to deal with the criminal justice system.
“On the face of it, they’re going to get some money out of it, like a fine and court costs,” Graves said. “These small jurisdictions are always hurting for money, and they feel like they’re doing the right thing, but at the end of the day, they are costing the citizens of Harris County the chance to keep their record clean.”