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November 20, 2006 - Houston Chronicle (TX)

Judge Calls For Easing Of Drug Penalty

Citing Felony Docket Loads, He Asks Perry To Cut Sentences For Minor Possession

By Bill Murphy

State District Judge Michael McSpadden once believed that long sentences would deter drug sales and drug use.

But after more than two decades hearing felony cases in Harris County, the former prosecutor is calling on the governor and Legislature to reduce sentences for low-level drug possession.

"These minor offenses are now overwhelming every felony docket, and the courts necessarily spend less time on the more important, violent crimes," he recently wrote to Gov. Rick Perry.

Nearly twice as many defendants in Harris County were sent to state jails last year for possessing less than 1 gram of a drug than in Dallas, Tarrant and Bexar counties combined.

McSpadden recommended making delivering or possessing a small amount of drugs a Class A misdemeanor carrying no more than a year in county jail.

Gov. Rick Perry is aware that bills may be submitted in the upcoming legislative session that call for reducing penalties for possessing small amounts of drugs or drug residue, said Kathy Walt, the governor's spokeswoman.

"He is willing to look at anything that the Legislature presents him, and he wants to hear the debate in the Legislature about the pros and cons of the issue," she said.

The judge said the Houston Police Department and District Attorney's Office are clogging court dockets and causing crowding in the county jail and state jails by bringing so many drug-possession cases against those found with pipe residue or a sugar packet's worth of cocaine.

But District Attorney Chuck Rosenthal said state law makes no distinction between residue and up to a gram of a drug. Under state law, a person caught with either should be charged with possession of less than 1 gram, he said.

"That's what the law says we should do," he said. "We don't get to make the facts. We don't get to change the law."

Police officials and County Commissioner El Franco Lee said McSpadden is oversimplifying a complex problem. HPD goes after low-level dealers and buyers when neighbors complain that they cannot go outside because there is an open-air drug market or a parade of addicts buying drugs from a store or home.

"I guarantee you there are more of my constituents who want their property protected and want more police on the streets than there are people complaining about the nature of the charges brought against those arrested in their neighborhoods," Lee said.

Fears Retaliation

In the dozens of apartment complexes that dot the Fondren area in southwest Houston, many law-abiding residents know nothing of the policy debate over whether low-level drug offenders should be charged with drug possession or a lesser crime. But they know fear firsthand.

"There are gunshots going all night. The security guard would sit in his car all night. He was afraid to get out," said a part-owner of an apartment complex on West Airport. She requested anonymity because she fears retaliation.

The owners took steps to make the complex secure, installing lights at the rear of the property and repairing a fence. Drug dealers shot out the lights and made new holes in the fence to make sales, she said.

As for her investment, "I can't sell it because it's 30 percent empty," she said. "The good people are moving out."

Crack-residue cases are a way of addressing a neighborhood's needs, said HPD officer Jason Streety.

"Even little frivolous charges are a good way to get those causing problems off the street," he said. "In a high-crime area, you gotta take what you can get."

HPD Executive Assistant Chief Mike Thaler said narcotics or other special units may target a park or a basketball court if neighbors have complained that drug sales are occurring there. Police will try to arrest dealers and users, who sometimes are charged with drug possession for having a pipe with crack residue.

Incarcerating thousands of drug offenders convicted of possessing less than 1 gram of a drug is expensive. It cost more than $59 million to hold more than 4,800 such prisoners in state jails last year, based on Texas Department of Criminal Justice figures.

Commissioners Court is mulling over building two jails for at least $267 million because current jails are overcrowded.

On some days, as many as 800 people are in county jail awaiting trial or serving time for low-level drug charges, said sheriff's department Chief Deputy Mike Smith.

Last year, 1,869 of 4,418 offenders serving time in state jail for committing offenses in Harris County were convicted of possession of less than 1 gram of a drug.

Not included in these statistics are hundreds of low-level drug offenders who were in Harris County jail awaiting trial or who cut deals, pleaded guilty and served county jail time.

Little Deterrence

McSpadden, a Republican not known for being anti-police or anti-prosecution, estimated that more than half the cases for possession of less than a gram of a drug in his court are crack-residue cases. The county and state do not keep records on whether a drug case stems from possession of residue.

Those caught with crack pipes should be charged with possession of drug paraphernalia, a Class A misdemeanor - not drug possession, McSpadden said. People convicted of carrying crack pipes can be fined $500 and put on probation.

Possession of less than 1 gram of a drug is a felony that often lands people in state jail for six months to two years.

McSpadden said prison and jail sentences aren't good deterrents. "Unfortunately, it is obvious that the demand for drugs will not diminish, no matter what the consequences are," he wrote Perry. "I changed my mind a few years ago when it was obvious the 'war on drugs' was a complete failure and should be considered as symbolic at best."

McSpadden asked Perry to work with state lawmakers in reducing the sentences for low-level drug-possession offenses.

Perry spokeswoman Walt said the governor supports creating drug courts, believing that they have a better record of preventing future drug use among addicts. But those who violated drug laws should be prosecuted, she said.

Continued Prosecution

McSpadden says the HPD is trying to pad drug-arrest statistics and make itself look good in the eyes of the City Council.

Rosenthal said prosecutors have debated whether residue cases should be handled as paraphernalia cases. At the end of these discussions, Rosenthal decided they would continue to be prosecuted as possession cases.

He said some prosecutors argued that HPD officers working extra hours to tackle drug problems in a neighborhood "pick the lowest hanging fruit" and arrest low-level drug offenders to justify overtime.

Thaler denied his officers had that motivation.

"The real objective is to make people feel safer. There are areas that feel under siege," he said. "People feel uncomfortable, and they can't go to the park because dealers are selling drugs. We are trying to maintain order."

McSpadden said HPD could get addicts off the street by charging them with possession of paraphernalia.

The judge and the district attorney do agree that drug courts appear to be more successful than prison sentences in helping addicts stay off drugs.

Three state district courts in Harris County serve as drug courts. Judges in any of the state district courts can refer addicts to these courts if the addict makes a case he or she wants to beat the habit.

In the drug courts, addicts can plead guilty and get treatment and intensive social services while under supervision.

McSpadden and Rosenthal said more money should go to creating additional drug courts.

Contact Bill Murphy at

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