Houston D.A. Will No Longer Prosecute Pot Cases, Outraging Other Prosecutors

This is why we can't have nice things.


Randall Benton/TNS/Newscom

Texas' Harris County, which includes Houston, will no longer arrest or prosecute most marijuana possession cases under four ounces starting on March 1, the county district attorney and city officials said in a press conference Thursday.

Harris County D.A. Kim Ogg and Houston city officials instead unveiled a new diversion program they say will steer thousands of people away from jail and a permanent criminal record, while saving the county millions of dollars in court, jail, and drug lab costs. It will also make the third-most populous county in the U.S. one of the more progressive on policing marijuana offenses, at least among places where the drug remains illegal.

"At 107,000 cases over the last ten years, we have spent in excess of $250 million dollars collectively prosecuting a crime that has produced no tangible evidence of improved public safety," Ogg said. "Additionally, the collateral damage to our workforce is immeasurable—because what we have done is we have disqualified, unnecessarily, thousands of people from greater job, housing and education opportunities by giving them a criminal record for what is in effect a minor law violation."

Under the new program, those caught with marijuana will be required to take a four-hour diversion class and pay $150 (excepting indigent offenders). They will have no arrest or court record. The county will still prosecute marijuana possession in some instances, such as near school zones, and juveniles are not eligible for the program. However, it still widely expands the previous diversion program offered by the county, which only applied to first-time offenders caught with under two ounces of marijuana.

Criminal justice groups such as Harvard Law School's Fair Punishment Project applauded the news.

"Prior to today, a person found in possession of four ounces or less of marijuana in Houston faced arrest and possible jail time," Rob Smith, director of the Fair Punishment Project, says. "Even four or five days in jail could mean a lost job or an uncared for child or elderly parent. Today, District Attorney Kim Ogg took an important step toward making the justice system more humane and fair by recognizing that shuffling more people through the system for non-violent drug offenses was doing more harm than good."

Naturally, however, this upset other prosecutors who enjoy throwing long-hairs and beatniks in jail, such as Montgomery County District Attorney Brett Ligon.

"Unlike Harris County, Montgomery County will not become a sanctuary for dope smokers," Ligon said in response to the new policy. "I swore an oath to follow the law—all the laws, as written by the Texas Legislature. I don't get to pick and choose which laws I enforce."

This is an oft-repeated line by prosecutors, suggesting that their hands are tied by what laws legislators pass, but here's the thing: Prosecutors do pick which laws they enforce. They do it every day. Prosecutors have freedom to choose whether to file or dismiss charges, and they often have several overlapping criminal statutes to choose from, allowing them to overcharge or undercharge a defendant as they see fit. For a defendant, this can be the difference between misdemeanor possession, possession with intent to distribute, or drug trafficking and distribution. If a defendant agrees to take a plea deal—and an overwhelming percentage of defendants take the deal because of the leverage prosecutors wield—prosecutors can make more serious charges disappear.

For example, a Reason investigation of Mississippi's asset forfeiture program found several cases where county prosecutors struck deals with defendants, allowing them to plead guilty to a reduced charge of misdemeanor drug possession. In exchange, county law enforcement forfeited defendants' guns and cars.

Rather than using their power to secure favorable convictions or asset forfeiture revenue, Ogg and Harris County law enforcement are doing what many criminal justice reform experts say is one of the most essential—yet hardest—tasks to reduce America's massive prison population: using their discretion to stop people from getting a criminal record in the first place.

Ogg is part of a wave of D.A. candidates who ran in 2016 on explicitly reform-minded campaigns and unseated "tough-on-crime" prosecutors. She defeated incumbent D.A. Devon Anderson. As I reported in November:

Anderson is perhaps most notorious for holding a rape victim in jail for a month to ensure she testified, but Harris County has numerous other systemic problems with how it administers justice.

A joint report by Human Rights Watch and the ACLU released this fall documented how Harris County aggressively prosecutes the war on drugs, ruining people's lives for miniscule amounts of drugs. According to the report, "data provided to us by Texas shows that 53 percent of drug possession arrests in Harris County (in and around Houston) were for marijuana, compared with 39 percent in nearby Dallas County."

Faulty drug tests have led Harris County to lead in the country in wrongful convictions, with at least 73 exonerations for drug possession since 2010.

As one of her first acts as district attorney, Ogg fired 37 line prosecutors, several of them for alleged misconduct.

As I recently reported, criminal justice reform groups are beginning to turn their attention and resources to the county and local level, where the vast majority of prison admissions come from. If there's going to be a real shift in the U.S. criminal justice system, it's going to happen in places like Harris County.