BILLS WOULD REDUCE DRUG PENALTIES

Backers Say Offering More Treatment, Less Prison Time Also Would Save Money

Alarmed at a trend that is filling state jails with people caught with less
than a sugar packet-size amount of an illegal substance, some Texas
legislators are pushing to change the law so more drug offenders get
treatment instead of incarceration.

Lawmakers who believe Texas' criminal justice system is overly harsh are
using the state's $10 billion budget crisis as an opportunity to call for
saving money by putting fewer people in prison. Others are skeptical about
whether the changes are needed.

One proposal to lessen the punishment for small-time drug offenses is
heading for the House floor in the next couple of weeks, and another is
pending in a House committee.

"We went through a period of criminalizing just about everything you could
think of and raising penalties," said state Rep. Harold Dutton, D-Houston,
sponsor of one of the bills. "We may have gone a little bit too far in some
cases."

Both bills aim to reduce the number of people locked up for such crimes,
require treatment for drug addicts, and keep those caught with small
amounts of drugs from being saddled with a felony conviction that could
impair their ability to get jobs or rent apartments.

The Houston Chronicle reported last fall that nearly half of the 15,000
inmates in the state jail system -- lower-security jails established in
1994 to house nonviolent felons -- were there for drug crimes involving
less than 1 gram.

The bulk of those offenders -- 49 percent -- were from Harris County. The
county accounts for 16 percent of Texas' total population.

Of the 58,000 drug convictions won by local prosecutors over the past five
years, 77 percent involved less than 1 gram, according to a Chronicle
analysis of district court data. Harris County sent 35,000 of the
small-time offenders to jail or prison.

Drug cases also make up an increasing proportion of Harris County's felony
cases. The number of drug cases before the courts has increased 300 percent
since 1985, while the total number of felonies has increased by 56 percent,
according to data from Republican state District Judge Jan Krocker.

Harris County District Attorney Chuck Rosenthal last week defended the
incarceration record.

"They don't appreciate what's going on here," he said of critics. "I see
judges giving them (offenders) chance after chance after chance to stay on
probation, and apparently they're not doing it."

A bill sponsored by Rep. Ray Allen, R-Grand Prairie, would remove jail time
as an option for first-time offenders who are convicted on less-than-a-gram
charges. Instead, convicts would be sentenced to probation and treatment
programs.

If they then violate their probation or commit multiple offenses, convicts
could be sentenced to a state jail.

Rosenthal, a Republican, asked why convicts need several chances at
probation and treatment before they receive jail time.

Though less-than-a-gram convictions would still be felonies under Allen's
bill, offenders who successfully complete their sentences would have the
conviction "set aside." That means they could answer "no" when asked on job
and rental applications whether they have felony convictions, but the
offenses could still be used against them legally if they commit other crimes.

"We don't want to take the ability of someone to be gainfully employed and
be a law-abiding citizen," said Scott Gilmore, Allen's chief of staff.

Rosenthal is concerned the "set aside" system would be unworkable in the
courts.

Dutton's bill would reduce drug offenses involving less than a gram from
felonies to misdemeanors. The change would lower the penalty structure and
shift the crimes from state district courts to misdemeanor courts run by
the counties.

"Let's don't put them in prison," he said, adding that drug addiction
should be treated as a medical rather than a criminal problem.

As the Legislature grapples with slashing social programs and trimming
other costs to address a $10 billion budget deficit, both bills seek to
save money by jailing fewer people.

A financial analysis of Allen's bill by the Legislative Budget Board
predicts it would save Texas $7 million next year and $72 million by 2007.
Dutton's bill, the board claims, would save $35 million next year and $144
million by 2008.

"We need to really think about how we're spending limited funding," said
Will Harrell, executive director of the American Civil Liberties Union of
Texas. "In no area of public policy can it be business as usual."

Harrell is lobbying for many of the 31 prison reform bills introduced this
session in hopes that lawmakers who are not ready to "rethink the
philosophy of crime and punishment" will consider "efficiencies" because of
the budget crunch.

Allen's bill won a favorable recommendation Thursday from the Corrections
Committee, which he chairs, and will likely be taken up by the full House
in the next couple of weeks. Dutton's bill remains in the Criminal
Jurisprudence Committee.

If the bills pass the House, they will likely go to the Senate Criminal
Justice Committee, headed by John Whitmire, D-Houston.

Traditionally a supporter of prison reform, Whitmire is skeptical that this
year's proposals can pass a Republican-led Legislature.

"I just don't think it's realistic that we're going to change the penalty
structure ... because of the makeup of the Legislature," he said. "I do
think that it is reasonable and tough and smart to find alternatives to
incarceration for low-level drug offenders."

Whitmire said a better avenue for reform might be opening a drug court in
Harris County, a move that was mandated by the Legislature two years ago.

Whitmire and other lawmakers expressed impatience that the court has not
yet opened.

The court will open Sept. 1, which Rosenthal said is the deadline set by
the new law. He added that securing federal funding for the court has been
slow work.

Meanwhile, the impact of Harris County's aggressive prosecution of
low-level drug crimes is felt most harshly in black neighborhoods. The
Chronicle analysis showed that 62 percent of those convicted were black and
37 percent were white. It was not possible to tell how many were Hispanic.

Harris County's population is 42 percent Anglo, 33 percent Hispanic and 18
percent black.

Rosenthal offered no explanation for why blacks feel the brunt of drug laws.

"I don't know that I know why the numbers are like that," he said. "It's
certainly not an intentional thing."

Rep. Joe Deshotel, chairman of the Legislative Black Caucus, said in a
recent opinion article in the Chronicle that the high incarceration rates
of blacks show "ineffective public policies and deep-seeded and disturbing
attitudes toward people of color in our state."

"Regardless of a person's ethnic background, if they can be rehabilitated
.. we should intervene and help that person become a productive citizen,"
Deshotel, D-Beaumont, said in an interview.

Houston Ministers Against Crime, a group of black ministers, is lobbying
for both bills.

Changing the law would make it easier for former drug users to improve
their lives, said the Rev. F.N. Williams of Antioch Baptist Church,
president of the group.

"They can find some respectable jobs," he said.

Republican state District Judge Michael T. McSpadden has been saying for
months that less-than-a-gram offenses overwhelm his and other district
courtrooms, detracting from the courts' handling of violent crime, on which
he believes they should be focusing.

"I still think the better avenue would be to reduce them to misdemeanor
offenses where they belong," McSpadden said last week. "I don't think the
lawmakers realize that they absolutely flood the district court dockets."

But others, including the Texas Conference of Urban Counties and the Texas
District and County Attorneys Association, think changing minor drug
offenses to misdemeanors could prove unwieldy.

Don Lee, executive director of the urban counties group, said he fears that
if drug crimes become misdemeanors, counties will get stuck with the bill
for jail time that is now paid for by the state.

"Felonies are traditionally a state responsibility," he said. "It is
important to counties that we maintain that distinction."