Harris County District Attorney Devon Anderson implemented the First Chance Intervention Program on October 6, 2014. The program was designed to give people accused of a first offense of Class B misdemeanor marijuana possession the opportunity to avoid a criminal charge and avoid jail time.
The DA’s Office has released statistics on the first eleven months of the program to Houston NORML. We have analyzed the data and are waiting for additional statistics to be released to us in the near future. The numbers show some success in the number of participants who have participated in the program and successfully completed it. The numbers also show some clear deficiencies.
81.5% of participants completed the program successfully
From 10/6/2014 through 8/20/2015 a total of 1867 cases of Class B misdemeanor marijuana possession offenses in Harris County involved the first chance intervention program being offered. Of those, 358 were still active at the time the data was released. Of the remaining 1509 participants, 1231, or 81.5%, completed the program successfully. Such a high success rate among the participants is certainly a positive outcome of the program. However, there are some concerns regarding the number of participants who were booked and jailed by the arresting law enforcement agency.
Only 19% of participants avoided jail time and a criminal charge
Of the 1867 total who were offered the program, 361, or 19%, were offered the program “pre-charge” and 1506, or 81%, were offered the program “post charge” which means the arresting law enforcement agency did not acknowledge the accused person’s eligibility for FCIP but instead arrested the individual and booked them into jail as they would any other offender. Therefore, there are actually 2 different programs entirely. Here are the differences between the two:
Pre-charge – The arresting LEA (either HPD or HCSO) does acknowledge the accused person’s eligibility for the program. Instead of a traditional arrest for the offense, the individual is transported to a police substation, identified and fingerprinted via AFIS (Automated Fingerprint Identification System), and sign a program notice form agreeing to contact Pretrial Services within 3 business days and initiate the program. They are then released, usually within just a few hours of the initial encounter. The individual is not booked into jail, doesn’t have to spend the night in a cell, and doesn’t have to bond out. After a quick assessment with Pretrial Services, they are offered the program as an agreement with the DA. As long as the program is completed successfully, no formal criminal charge is ever filed.
Post charge – The arresting LEA does not acknowledge the accused person’s eligibility for FCIP but instead arrests the individual and books them into jail. This results in an immediate arrest record and mug shot. Bond is set and the individual has to stay the night in a jail cell. The individual usually will spend 1-5 days in jail depending on how long it takes them to bond out. A formal criminal charge is filed against the person for the offense. The DA’s office will later offer the first chance intervention program once they appear in court. The program is offered as an agreement with the DA for the charge to be dismissed upon completion of the program. The records related to the arrest, charge, dismissal can be expunged after 1 year.
Only 2 out of 50 law enforcement agencies in Harris County are participating
When the program was implemented in October 2014 it was done as a “pilot program” which means that only Houston Police Department (HPD) and Harris County Sheriff’s Office (HCSO) are participating while the other 48 law enforcement agencies (LEA) in Harris County are not. For those arrested by a non-participating LEA, the program is later offered in court by the DA’s office. Out of the 1867 total participants, 404 are HPD and 465 are HCSO, for a total of 869, the remaining 998 involve a non-participating LEA. Those with the highest number of participants are Precinct 4 (175), Precinct 1 (114), Pasadena PD (82), and Deer Park PD (77).
HPD and HCSO are only following the program 61% of the time
Out of the 869 cases involving either HPD or HCSO, 278 occurred prior to 10/6/2014. Of the remaining 591 cases in which the offense occurred after 10/6/2014, 361, or 61%, were offered the program pre-charge while the remaining 230, or 39%, were offered the program post charge. So when we narrow it down to only HPD / HCSO, the 2 agencies participating in the program, they are really only following the program 61% of the time. According to the DA’s office, for the other 230 cases, the individual was determined to be ineligible by the LEA for “various reasons” including open class C warrants and no identification at the time of the offense. They were later determined to be eligible by the DA’s office and offered the program post charge.
All successful participants avoid a permanent criminal record
Under the program, people who are accused of possessing two ounces or less of marijuana (Class B misdemeanor) can avoid jail time and a criminal charge (in some cases). Those who complete the program successfully avoid a permanent criminal record (in all cases) because there is never a conviction or deferred adjudication.
District Attorney Devon Anderson has already announced expansions to the program
On August 4, 2014, while speaking on a panel discussion about marijuana policy, Harris County District Attorney Devon Anderson, stated “in two weeks we’re expanding it to all agencies in Harris County.” This announcement was made more than five weeks ago and we have yet to see any kind of official confirmation that all agencies are now participating in the program. The DA’s web page for the program still has two separate forms for “HPD/HCSO” and “Other Agency.” We’re hopeful to hear an official confirmation soon and we’re quite eager to see this expansion implemented. This type of expansion will definitely improve these statistics and increase the number of people who can avoid jail and criminal charges.
DA Devon Anderson also announced a new pilot program that Houston Chief of Police Charles McClelland has agreed to in which HPD will start using “portable AFIS machines.” She explained this as “meaning they will have them in their patrol car. They will be able to release the offender at the scene. There will be no transport to the substation. Where you are arrested is where you will be released if you qualify for the program.”
Offenders still face major consequences for possessing small amounts of marijuana
The fact that a person avoids a conviction or deferred adjudication does not mean they do not suffer consequences from a criminal accusation. In 81% of cases in which the person is jailed and charged, they spend hours and sometimes days in a jail cell. They miss school or work. They can be fired from their jobs. If their car is impounded, they must pay large tow and storage fees. They are charged with a crime. Even if the charge is later dismissed it will stay on their record for at least 1 year.
Racial disparities in marijuana enforcement still exist in the program
It has long been known that African Americans are more likely to be arrested for marijuana possession despite the fact that blacks and whites use marijuana at about the same rate. According to a report by the ACLU, Harris County had the 6th highest amount of Black arrests for marijuana possession in the nation, at 5,320 arrests making up 44.9% of all Harris County marijuana arrests in 2010.
The racial breakdown for the 1867 participants in the program from 10/6/2014 through 8/20/2015 shows 31% Black, 29% White, 36% Hispanic, 1% each for Asian, Multiracial, and Unknown. Census data shows that Harris County’s population is 19.5% Black, 31% White, 41.6% Hispanic, 6.8% Asian, and 1.7% Multiracial.
Though promising, the program has fallen dramatically short of its goals
Anderson promoted the program as a way for first-time offenders to avoid jail time, a criminal charge and a criminal record for low-level marijuana possession offenses. The program was also billed as a way to free up resources for law enforcement agencies and courts that would have been utilized prosecuting these offenders. In this goal, the program appears to have fallen dramatically short.
NORML opposes all criminal penalties for marijuana possession. Any reduction in the number of people who face lifelong consequences due to the mere possession of a plant, however, is a worthy goal and we support it. We see the program as a step in the right direction and are pleased with the results thus far. We are hopeful and confident that the numbers will improve as the program continues and expands.