Marijuana diversion program now “mandatory” for all county law enforcement agencies… kind of

First Chance Intervention

Harris County District Attorney Devon Anderson has announced that beginning January 1, the First Chance Intervention Program (FCIP) will be mandatory for all county law enforcement agencies. This will allow those accused of possessing 2 ounces or less of marijuana, to avoid a trip to jail and a criminal charge.

On November 5, Devon Anderson sent an advisory directive to all 50 law enforcement agencies in Harris County informing them of the new requirement and instructing them on how to facilitate the program.

Why the change in policy?

Currently, only a small fraction of the counties 50 law enforcement agencies are offering the program. Most agencies are continuing to jail people and the DA’s office is taking criminal charges on them. Not for long.

As we uncovered in September, throughout the first eleven months of the program, only 19% of participants actually avoided jail. Other agencies are still doing things the old-fashioned way. The DA’s prosecutors have been offering the program in court, but it’s really not the same program. As Devon Anderson has acknowledged, “When we don’t offer it until after the offender is charged, we lose a lot of the best benefits of the program.”

Even within the two participating agencies, HPD and HCSO, only 60% avoided jail. Everyone else was still jailed, charged, and had to appear in court. Officers were flat-out ignoring the program and taking people to jail who were actually eligible. The reason for this, as DA spokesperson Jeff McShan told the Houston Press, “They were either not comfortable with the program at first or didn’t know about it for some reason.”

The program was intended to be offered “pre-charge,” meaning law enforcement officers are to present the opportunity to the offender at the time of arrest and if they agree, release them from custody before criminal charges are ever filed. However, law enforcement had full discretion to ignore the program at will.

Unfortunately, when a program like this is only utilized by law enforcement on rare occasions, the result is inequality in the way people are treated and a continued cost burden to taxpayers.

The DA’s office can’t do this alone, they need law enforcement to utilize the program and be consistent with it. To correct the issue, DA Devon Anderson sent a clear message to all law enforcement agencies in the county, that they will no longer be able to just ignore the program.

When asked about the DA’s announcement, Jason Miller, our executive director, stated:
“We applaud our district attorney Devon Anderson for making such a courageous move. She has clearly acknowledged that the current program is flawed and must be expanded. She has clearly recognized that law enforcement, when given a choice, will fail to consistently follow a leniency program like FCIP as they have demonstrated over the past year. The 2016 expansion of the First Chance program is a victory for marijuana reform advocates all over the Lone Star State.”

Does the DA have legal authority to “mandate” a program like this to law enforcement agencies?

Technically no. However, the District Attorney does have the authority to prioritize prosecutions and say which cases they will and will not take. Harris County uses a direct filing system, which eliminates the need to take arrested persons before a magistrate for probable cause. Instead, officers will contact the District Attorney’s Intake Division to confirm probable cause and authorize the filing of a formal criminal charge.

Beginning January 1, prosecutors at the District Attorney’s Intake Division, which operates 24/7, will be instructed to decline criminal charges for class B misdemeanor possession of marijuana offenses on someone who is eligible for FCIP. Therefore, officers will have no choice but to either offer FCIP or let the person go free.

Will there still be exceptions?

Yes. However, the exceptions will be rare. The prosecutors in the DA’s Intake Division will be authorized to file formal criminal charges for class B misdemeanor possession of marijuana against persons eligible for FCIP only in the following circumstances:

  1. Arrestee Declines to Participate.
  2. Special Circumstances Submitted in Writing.

There may be special circumstances that justify the filing of charges. In such cases, the arresting officer must first obtain supervisory approval for the override before calling the Intake Division. The assistant DA with the Intake Division must then approve the override as well. Once approved, the officer must complete the FCIP Law Enforcement Override Form and describe the special circumstances justifying the exception.

Will offenders still be arrested and transported to a police station before they are released?

Most of the time. It depends on whether or not the officer’s patrol car is equipped with a portable AFIS or Automated Fingerprint Identification System. Under FCIP, the officer must AFIS the individual before releasing them. Currently, persons who are offered FCIP pre-charge are first arrested and transported to a police substation to be fingerprinted and identified and then offered the program via a program notice form. As long as the person agrees to contact pretrial services within 3 days to initiate the program, they are released from custody.

As Devon Anderson announced in August, HPD has agreed to begin using portable AFIS machines. This means the person will be released on the spot instead of having to be transported. Notice the two check boxes on the new Program Notice Form

    Please select one:
  • Mobile AFIS (Detainee released on scene); or
  • AFIS at Station (Detainee transported and released from station)

Portable AFIS machines are definitely a plus for both law enforcement officers and the public. Officers don’t have to transport the person for AFIS. They can run the AFIS at the scene, let the person go, and then get back to patrol.

Is this program the same as “cite and release”?

No. Despite what the media might be telling you, this is totally different than cite and release. Houston Chronicle reporter Brian Rogers recently published a story riddled with inaccuracies. The story, entitled DA: Marijuana now means a citation, not a ride to jail is very misleading and claims that suspects will be “ticketed instead of transported.” This is completely false.

The accused person won’t be ticketed or cited at all. A ticket would imply either a civil infraction or a class C misdemeanor like a traffic ticket. A citation would imply something like “cite and release” where the suspect is issued a summons to appear in court and answer to the charge. Under FCIP, suspects will not be faced with either punishment.

Instead, they will be offered the opportunity to avoid ever having a charge filed against them in the first place. In many ways, pre-charge FCIP is better than “cite and release” because there is no formal criminal charge. They simply complete the program via pretrial services and then forget all about it without ever having to appear in court.

Is there an arrest record that will need to be expunged?

Yes. The person will need to have the arrest record expunged and they can do so as soon as they complete the program. The process is fairly simple, however, for any expungement it’s a good idea to hire an attorney to make sure all the paperwork is filed properly and that all necessary records are expunged. The filing fee is $300, for FCIP cases, the DA will provide an agreed order saying it can be expunged immediately.

What does this mean for marijuana policy in Texas?

With 77% of Texans supporting marijuana law reform, this issue is a clear winner and this policy is an obvious choice for the nation’s third largest county. However, it doesn’t solve our state’s serious prohibition problem and it doesn’t curtail the black market. We still need to concentrate our efforts on reforming marijuana laws at the state level through our elected State Representatives and State Senators. Prohibition is a failed public policy, a grave injustice, and a threat to our liberties. We should consider this a clear victory and another step toward ending prohibition in Texas.

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