DA Susan Hawk Tells Prosecutors to Get More Serious About Pot Possession

by Eric Nicholson | Dallas Observer

As drug reforms go, the cite-and-release marijuana policy Dallas recently considered was pretty tepid stuff. Getting caught with weed would have still been a class B misdemeanor, still carried a potential penalty of a $2,000 fine and six months in jail and still left a permanent mark on a convicted person’s record. All of that is cemented in state law, untouchable by local government.

What cite-and-release would have done is save everyone a lot of grief on the front end of the drug enforcement process. By allowing police to write a ticket for marijuana possession instead of hauling a suspect to jail, the policy would mean that officers wouldn’t have to fritter away half their workday booking a nonviolent offender into jail, the suspect wouldn’t suffer the collateral damage to job and family that can come from an unannounced trip to jail and the city and county would save on jail cost.

Last month the City Council unceremoniously torpedoed the policy, ostensibly out of concern that the policy was unfair because it wouldn’t apply to the small sliver of Dallas that’s in Collin County but really because the council is populated by moralizing Puritans.

But while Dallas decided not to budge on the front-end and the state Legislature appears unlikely to pass more substantive reform this decade, local officials still have considerable sway on what happens on the back-end. The district attorney’s office in particular can decide how zealously to prosecute drug possession cases, how willingly to negotiate reduced charges, how arduous the conditions need to be.

On the whole, defense attorneys say that the Dallas County prosecutors are reasonable when it comes to marijuana offenses. The prosecutors still treat it as a crime, because, after all, that’s what it is, but they don’t throw the book at defendants and they leave first-time offenders a path to wiping the charges from their records.

Recently, however, the DA’s office has made an effort to rein in prosecutors who too willingly cut deals on low-level, nonviolent offenses.

Since 2007, the DA’s office has offered first-time offenders charged with certain misdemeanors like marijuana possession and shoplifting the option to address the charges through a “memo agreement.” Upon meeting certain conditions outlined in the agreement (e.g. taking substance abuse or theft classes, passing drug tests, etc.) and paying a $620 fine, the case is dismissed. Cases dismissed in this way are eligible for expungement, leaving the defendant once again with a clean criminal record.

Many prosecutors, however, strike deals with defendants without using the memo agreement. For marijuana possession cases, defendants are often allowed to quickly dispose of the case by pleading guilty to possession of drug paraphernalia, a class C (traffic-ticket level) misdemeanor. They pay a fine, avoid the classes and drug tests, and can also have their records wiped clean.

There are no readily available statistics, but, anecdotally, the number of prosecutors striking deals independently, rather than using the standardized memo agreement, has grown in recent years. Craig Glickman, a defense attorney, speculates that it’s the product of a generational shift; the young assistant district attorneys who populate the office’s misdemeanor division just don’t think weed is that big a deal.

The DA’s office recently began to push back, directing prosecutors to stick to the memo agreement. Brittany Dunn, the office’s spokeswoman, described the change as more of a suggestion than a mandate and said its intent is so that the criminal justice system can “address the underlying issue that caused the arrest.”

“We are encouraging prosecutors to address changing criminalistics behaviors in plea bargains and push for rehabilitative conditions outlined in the memo agreement,” Dunn wrote in an email. “Your stated ‘lesser-included, easy plea'” — e.g. drug paraphernalia — “will stay off the offender’s record, not address the issue, and detrimentally affect them for years to come. We are committed to ending revolving door punishment. Mass incarceration costs us all and begins when we refuse to address the criminalistics behavior and perpetuate the ‘slap on the wrist’ mentality.”

For offenders, the change is a mixed bag. In addition to giving folks caught with weed a shot at rehabilitation (woo hoo!), the memo agreements allow them to clear their records more quickly than they can with a class C conviction.

But the conditions are much more onerous; if they’re not met it can lead to a conviction for a class B misdemeanor that  can’t be expunged. And the fine is higher — a maximum $500 for a class C misdemeanor versus $620 under the memo agreement.

On balance, it’s probably slightly worse for defendants but hardly draconian. Which raises a question that Dunn’s talk of rehabilitation doesn’t quite satisfy: Why bother?

The answer, as always, is money.

Too many class C deals “would hurt the financial bottom line of the DA’s office — $500.00 goes to them in the Memo Program, where in a Class C reduction, fines and court costs go to the State,” defense attorney Pete Schulte wrote in an email. “Amazing how money can influence justice, huh?”

Sigh. Can Texas just legalize this stuff already?