"My name is Michael McSpadden, judge of the 209th District Court. The court is going to read the charge against you. Please do not respond in any way…"
Thus began a series of ritual playlets between one of the longest-serving judges in Harris County's criminal courts and a chain of accused men and women, most of them black, with their hands cuffed behind their backs. Typical of the county's felony court dockets, charges that March morning included murder, aggravated assault, rape, robbery, burglary, indecency with a child—crimes worthy of significant punishment. But, as almost always, the charges against several defendants were for offenses a majority of the judges in Harris County’s 22 district courts do not believe should be a felony: possession of less than a gram of a controlled substance such as cocaine, methamphetamine, heroin, or dozens of derivatives and synthetic analogs.
At an intermission in the sad drama, McSpadden invited me into his chambers to talk about his long-running campaign to encourage legislators to alter Texas law regarding small quantities of illicit drugs. A conservative Republican, McSpadden softly but earnestly explained his long disquiet over the current drug laws. "These people should not be branded as felons for a small amount of cocaine," he said. "We need a recalibration. I had thought that all along, but then we started hearing it from jurors, especially from the grand juries, who see these cases coming before them every single day—a guy walking on the wrong side of the road, getting stopped, then frisked, then getting pulled in and getting a felony for having residue on a pipe. The jury comes back and says, 'Don't they have other crimes to deal with? We watch crime—violent crime—the first ten minutes of every single news report, and we concentrate on this?'”
McSpadden and his allies believe the crime should be dropped down to a misdemeanor, in part because it allows law enforcement to pursue higher-level criminals. “In a recent case we tried,” he said, “they had eleven officers on surveillance for a delivery of less than one gram of cocaine—a $20 rock of crack. What a waste. But it's a collar, and they can use it as a felony arrest to go to their higher-ups."
In January, at the start of the current legislative session, McSpadden sent a letter to state senator John Whitmire, the Houston Democrat who is the longtime chair of the Senate Criminal Justice committee, and to other key legislators, detailing the enormous expense of jail and prison overcrowding and the "revolving door" of dealing with drug addicts. McSpadden called for dropping the penalties for delivery or possession of small amounts of drugs from a felony to a Class A misdemeanor, with reduced time in a lockup, the possibility of probation (now called "community supervision'), and mandatory participation in a drug treatment program. A bolder option he mentioned would reduce the offense to a Class C misdemeanor, with the only punishment being a fine of up to $500. Such changes, he wrote, "would result in enormous savings to taxpayers by freeing up substantial numbers of jail beds and court resources that could be used to address more serious crimes." These changes "would be fair, just, and have an immediate positive effect on our overtaxed criminal justice system."
The idea to revise the penalties for such crimes has been around, but it has been toxic to some officeholders who have embraced it. In January 2010, mid-way through her term, then-Harris County district attorney Pat Lykos announced that her office would no longer prosecute so-called trace cases, as they are called. To help explain her reasoning, at an appearance at Rice University’s Baker Institute, she held up a package of Splenda, which weighs approximately one gram. She and her predecessors had been prosecuting people for less than 1/100th of that amount. "Sometimes they had a little flake extruding from their nose, a little flake [on a shirt collar] or on a crack pipe. We had thousands of cases clogging up our dockets, and that meant thousands of people overcrowding the jail."
Beyond that, she argued that the policy helped police make better use of their time "When someone is arrested for a trace case, that officer is out of service for two to three hours,” she said. “That neighborhood is unprotected for two to three hours. Officers are getting time-and-a-half to fight the drug war, and this is their drug-war arrest, time-and-a-half to go to court. So the union bosses are not happy with me."
After Lykos’s change in policy, McSpadden and his fellow judges noticed the effects: trace cases dropped from nearly 30 percent to approximately 10 percent of the dockets. But the police were less enthusiastic. When Lykos filed for re-election in November 201l, the Houston Police Officers' Union held a press conference to express their disapproval of the DA's policy and kept up a steady drumbeat against her. Not only was she flouting the law, they charged she was putting the public at risk by letting crack addicts run free to commit other crimes.
Lykos insisted she had no quarrel with police department leadership. "We met with the command staff for the Houston Police Department, the Sheriff's office, the Harris County Criminal Justice Council, and laid it all out. There were no objections." HPD Executive Assistant Chief and panel member Michael Dirden confirmed Lykos's account: "I want to make it clear that the disconnect is not between the District Attorney and the police department. It is the union that is pushing the issue of accepting charges on every case. Those of us in the administration work very closely with the district attorney's office on a daily basis. We are in one accord on that particular issue, in terms of how it relates to our usage of police resources and also in our understanding of the concepts of fundamental fairness."
Still, in the Republican primary two months later, Lykos was defeated by former prosecutor and judge Mike Anderson, who got