October 2008

I’ve represented several folks in Austin recently who have been “ticketed” for marijuana possession instead of being arrested. And I wrote about House Bill 2391 which allowed for this back in January.

I’m at home now, and I’ll make sure to run through those files and check tomorrow when I’m back at the office, but I thought some of those clients had been “cited” for possession of marijuana by officers in the Austin Police Department. (The other possibilities are the Travis County Sheriff’s Office, Department of Public Safety Troopers, and other various Travis County non-Austin municipal police forces.)


So I was somewhat surprised to see Sunday’s Austin American Statesman article titled and subtitled “Austin police to begin citing, not arresting, some offenders; Plan to be finalized by year’s end, chief says.”:


Marijuana smokers with small amounts of the drug or people driving while their licenses are suspended could soon be spared a trip in the back of a jail-bound Austin police car.


“… could soon be spared…” That was the surprising part – as well as the title which at least implies that Austin police have not yet begun to “ticket” for POM. At any rate, I’ll look through the files, and perhaps post an email to the Austin Criminal Defense Lawyers Association listserv to poll people on whether APD has actually already put this into effect. Maybe the “ticket” POM cases I’ve been getting have been other agencies.


So, enough of the digression, and back to the title of my post… Several others in the local Austin blogosphere have commented on this story already. Scott Henson notes, among other things, that the Williamson County District Attorney is quoted in the article disparaging the new marijuana arrest vs. “citation” policy option:


However, critics, including Williamson County District Attorney John Bradley, said the law "sends the exact opposite signal" law enforcement officials should want to give offenders. "My thoughts are that the entire process is a very creative way to decriminalize how we prosecute drug cases in Texas," Bradley said.


Scott’s response?


I honestly have no clue what John Bradley is talking about. This change doesn’t "decriminalize" anything. The offense charged is still a B misdemeanor with the full range of punishment options available upon conviction. That kind of overhyped rhetoric seems misplaced here.


Of course Scott is right. The reason I put quotation marks around the words ticket and citation in the post so far is that while House Bill 2391 allows police agencies to not take up their valuable time carting a person away to the jail for marijuana possession, the penalty remains the same. From my January post:


Continue Reading You Can Beat the Ride, But You Can’t Beat the Rap

OK, for those of you that noticed that I just posted while serving on a jury, let me defend myself. I wasn’t picked; in fact, there was no trial at all. We all sat around for about 45 minutes until the bailiff came in to let us know that all the cases had “worked out” and we were to be excused.

On a side note, pro se defendants and lawyers may have picked an especially unfortunate day not to have tried their case to this particular panel. Imagine my surprise when I found out that fellow Austin criminal defense lawyer David Gonzalez, recently featured in Texas Lawyer and named Austin Bar Association 2008 lawyer of the year, was also a potential juror. (Can anyone say **cough cough **“preemptory challenge” **cough cough?)


Small world.

In the regular course of relentlessly blogging sentencing law and policy issues Doug Berman has frequently wondered over the course of this presidential campaign why criminal justice issues haven’t been raised more often. I’ve mad no bones about which candidate I have supported during this election cycle, despite this not being a political blog and while I’d love to se a real discussion of the issues, I have little doubt that the most we could ever expect to see would be ads attacking Obama as soft on crime. (Perhaps one could ask if any type of criminal justice blog could be non political, but let’s skip that for now.)

Then a few weeks ago Berman asked “Is Senator McCain preparing to attack Senator Obama on crime issues?”:


Over at The Atlantic, Marc Ambinder has this notable new post suggesting that old-school "soft-on-crime" attacks are part of Senator McCain’s strategy to get back his mojo in the final month of the 2008 campaign.


As regular readers know, I have been itching for crime and punishment to be a campaign issue for quite some time.  I am not especially surprised that the campaign of Senator McCain would return to classic line of attack on Democrats; indeed, I am surprised that this issue has not come up sooner.


Alas, while the issue has finally come up in this flier mailed to Florida residents recently, you can see that the Republican Party is not even attempting to discuss criminal justice issues seriously:



Really, could you have a less substantive attack than this one?

So I was excited when I get the jury summons in the mail, and almost immediately went to my computer to fill out the new I-Jury online impaneling that Travis County now uses. Right before I clicked the last item to send my information out into the ether that is the internet I chanted, silently, “No civil, no civil, no civil”.

I wanted to be randomly assigned to a criminal case. Here’s the email I received:


You have completed online impaneling. Your status is

Assigned to MUNICIPAL COURT 1 (MU1) on 10/21/2008 at 8:30 AM.

Please be available to serve as a juror between 10/21/2008 and 10/21/2008. Normal hours of court operation are 8AM to 5PM Monday through Friday; however, circumstances may sometimes cause the court to remain in session after 5PM. Please be sure to make alternative arrangements for time-sensitive errands.

Please check your email regularly until you are dismissed or complete your assignment. You must follow through on your court assignment and call or report to the courthouse when scheduled. This assignment is subject to change should the court date need to be rescheduled or other circumstances change.

Thank you for using I-Jury!

For additional information or assistance, please contact the jury office at 512-854-9669


Ouch! Municipal court. I forgot to chant “No civil, no Class C cases, no civil, no Class C cases…”

First Point: when you decide to set your criminal case for jury trial instead of entering into a negotiated plea, your next setting will be the jury docket. And you won’t be the only one on it.

In Travis County there can be anywhere from 40 to 60 cases set for jury trial on the same day. Obviously, not every case goes – only one does – and the rest are reset for later. (Well, some are renegotiated and plead; some were just set on the docket for the client to finish some requirement to get a reduction; sometimes the lawyer was just stalling to get paid, etc.)


At any rate, there’s always a long docket for a judge to call on jury day.


Second Point: Misdemeanor Possession of Marijuana is one of the least commonly tried cases, at least in Austin. For the most part, first offenses can be reduced or dismissed outright if the accused agrees to take a drug class, do some community service, and/or prove they can stay out of trouble for a certain period of time. There’s generally not a reason to try them.


DWIs on the other hand are the most frequently tried case. The political pressure on the prosecutors to convict – from MADD and others – is intense; and the defendant isn’t as demonstrably guilty of the offense as they are in many types of cases, i.e. shoplifting, drug possession, etc. Those two competing forces make DWI the most likely case to go to trial.


With that as background, here’s what I overheard in County Court Number [Deliberately Withheld, or DW] while sitting around waiting for my case to be called. Judge [DW] was calling the jury docket, and for whatever unknown reason there were a substantial number of Marijuana cases on the docket. One after another.  And another.


Well this particular judge has a penchant for addressing the pews of defendants in a down to earth manner. And has a reputation for a good sense of humor. So after calling marijuana case after marijuana case on the jury docket, the judge suddenly stops and looks into the audience of the accused and says, somewhat exasperated and possibly half jokingly:


“You do realize possession of marijuana is against the law don’t you? Even if it’s a ‘just’ a small amount?”


After the lawyers – including me – and some of the defendants stopped giggling amongst themselves, I thought to myself: “I’m pretty sure they do now, Judge. If they didn’t before, I’m pretty sure they do now…”

Noting the absence of any questions in the vice presidential debate about the United States over-incarceration problem (which is driven in large part by the so called War on Drugs), and Ms. Palin’s repeated efforts to court the vote of “Joe Six-Pack”, Paul Armentano, the deputy director of NORML, today writes:

In what was no doubt a deliberate effort to appeal to so-called “Middle-America, working-class voters,” Republican Vice Presidential candidate Sarah Palin affectionately invoked the term “Joe Six Pack” — a phrase that despite its literal connotation (The typical American is an alcoholic) is nevertheless championed in the American lexicon.


Now just imagine for a moment that instead of proactively reaching out to “Joe Six Pack,” Governor Palin instead invoked the phrase “Joe Doobie” in a similarly veiled attempt to court those millions of Americans who use cannabis responsibly (a voting block that arguably dwarfs the number of Americans who put away a six pack of beer each evening).


Paul’s point is obvious. It is literally unimaginable.


Unfortunately, the easiest job in America is being the campaign manager for the guy running against the politician who even attempts to inject some sensible suggestions about drug policy reform into their platform. Imagine this scenario:


First from our courageous hypothetical politician “Mr. Smith”: “America has 4% of the world’s population and almost 25% of its prison population. Mandatory minimum sentences are morally questionable at best and currently bankrupting us. We can spend 10% of what we waste on the War on Drugs on treatment and eliminate prison sentences for drug addicts entirely and we will significantly reduce violent crime as a side effect.”


This would be immediately followed by the campaign for “the other guy” – whoever that was – releasing a commercial effectively saying “Senator/Representative Smith wants your baby to smoke crack!”


Yet “Joe Six-Pack” is a vote worth courting. Ever wonder about alcohol vs. marijuana and which is harmful? Know anything about the two substances and the relative safety of marijuana?