A Night In The Joint

MARIJUANA POSSESSION STILL MEANS JAIL TIME

Legislators hoped to alleviate jail overcrowding across the state by
allowing peace officers to issue citations to those found with less
than 4 ounces of marijuana and for other misdemeanors, but local
authorities say not arresting people for drug possession is sending
the wrong message.

With two failed bonds and overcrowding plaguing the Smith County
Jail, each person arrested on drug possession adds to the daily total
of inmates in jail and that translates to as much as $41 per day that
a person is confined.

"I don't believe giving a person a ticket for possessing a controlled
substance is a good policy and is not a message we want to send,"
Smith County District Attorney Matt Bingham said. "I believe these
people should be arrested, photographed, fingerprinted and worked
into the system and this arrest a part of their record."

Some who are for Texas House Bill 2391, which went into law last
September, say district attorneys, judges and peace officers not
using the law to their advantage are being stubborn.

Despite the extra tool in law enforcements' hands, only Travis County
is using the law and deputies say it is allowing them to spend more
time on the streets and less time processing people for misdemeanor
offences. But should an officer make the arrest or write a ticket?

Citation or Arrest

The law gives police officers the discretion to arrest a suspect - as
they have been doing - or write citations for a series of class A and
B misdemeanors for possession of less than 4 ounces of marijuana.

Other misdemeanors for which officers can now write tickets include
driving with an invalid license, criminal mischief, creating graffiti
and theft, as long as the damage costs for each incident is less than $500.

Bingham said issuing a citation for an arrestable offense takes a key
tool away from officers and that is the search.

"If an officer writes a ticket, then they can't search the vehicle or
the person and a lot of times a search leads to the discovery of
stolen property, more drugs, guns and greater offences being made," he said.

Maj. Mike Lusk of the Smith County Sheriff's Department said his
department is making arrest based on the law.

"If it is a violation of the law and we have probable cause then we
will make an arrest," he said. "On the surface it looks like this law
would help with the overcrowding, but we need to see how it plays out
in other areas."

Tyler Police Chief Gary Swindle said officers make an arrest if there
is a usable amount of marijuana found.

"Per a discussion with the sheriff and the DA, we will make an arrest
if we deem there is a usable amount," he said.

Swindle said the misdemeanor arrests aren't typically the type to add
to the jail overcrowding issue because those arrested on such charges
are not in jail long enough.

However, in previous stories about jail overcrowding the newspaper
has been told that a person that is confined in jail one hour is
counted in the tally that is reported to the jail commission.

Jail Administrator and Chief Deputy Gary Pinkerton said anyone booked
into the county jail is counted in the system.

"You have to go through the same process in the jail on a marijuana
charge as you would on a DWI charge or any other charge," he said.
"If these people were given a ticket then they wouldn't be here in
jail and they wouldn't be counted."

Pinkerton added that even with a small bond, some just can't afford
to get out of jail.

"We have guy in jail now on a $2,000 bond and he can't make it so he
just stays in jail," he said.

According to records from the Tyler Police Department, officers made
395 misdemeanor arrests for marijuana possession in 2007 and 341
arrests in 2006.

But despite the numbers some say there is no guidance in setting up a
system to deal with the new legislation.

How Would It Work?

Smith County Court-at-Law No. 2 Judge Randall Rogers said the law is
subject to a lot of miscommunication because there is no system set
up for when and where the offender should report to court.

Defendants in Smith County are ordered to appear in a court specified
by the week of their arrest, but patrol officers don't know the
schedule and, therefore, don't know which court to assign. They also
don't list a date and time of when they need to appear.

Rogers issued an order shortly after the law was passed, ordering all
offenders and police officers who issued the citations to appear in
his court on the Friday morning following the issuance of the ticket.
But Rogers hasn't seen anyone appear in his court during the Friday settings.

Rogers also said the defendant's don't have to go through pre-trial
drug testing if ticketed.

"It just wasn't well thought out," he said.

Barry Cooper, a former peace officer who is now speaking out for the
legalization for marijuana, said police and district attorneys not
using the law to benefit their communities are "showing their ignorance."

"I think our legislators are smarter and more researched than our
local district attorneys and peace officers," he said. "They are
showing their ignorance in not going by what the people want."

Randall said he hasn't seen one person cited for the Class B
misdemeanor come through his court and, from a lawyer's standpoint,
thinks it would be "foolish" for a law enforcement officer to ticket
the offender rather than arrest them.

Bingham said there were no guidelines set up to implement the law.

"There is no book-in photo, no information shared and because the
person could be taken to any magistrate which court would have
jurisdiction in the case?" he said. "Basically this is record keeping
nightmare and not something we want to do."