JUDGE CALLS FOR EASING OF DRUG PENALTY

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.