Grumet: Marijuana made it look easy, but court diversions can be hard

Sept 12, 2018
Austin Police officer Steven Constable talks with a driver during a 2013 traffic stop.

Travis County Attorney David Escamilla jokes that maybe he shouldn’t have started with the marijuana diversion program.

“It was so easy, it just gave me high hopes that we’d be able to cookie-cutter everything else,” he told me with a chuckle this summer.

In a county continually working to keep low-level offenders from getting mired in the costly cycle of fines and multiple court appearances, the marijuana diversion program is a successful example of one-size-fits-all justice.

But it’s proving to be a difficult model to replicate.

Under the diversion program that began last November, everyone reporting to court with a citation for possessing a small amount of marijuana, a “cite and release” offense that involves a court summons instead of an immediate trip to the jail, is offered the opportunity to take a four-hour marijuana education class. Complete the $45 class within 60 days and the citation goes away. The defendants take care of the class without getting fingerprinted or having their mug shot taken, so there’s no arrest record to haunt them years later.

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Prior to this diversion program, most people convicted for a small amount of pot ended up taking that class — but they also had the burden of a criminal conviction, plus fines or attorney’s costs. The diversion program was designed to fast-forward to the same result — the class — without inflicting the other “collateral consequences,” as Precinct 5 Justice of the Peace Nick Chu describes them.

Between the launch of the program and the end of June, 347 people took the class and got the marijuana citation dropped, and 201 others were in the process of doing so, Chu told me this week. No doubt, this is a small corner of the judicial system, but for hundreds of people, this program offers the opportunity to resolve a minor criminal charge without lasting debt or stigma.

So, why can’t we do more of this?

Some folks in the judicial system are trying. But, it’s hard to apply one-size-fits-all justice to charges where the circumstances are varied and messy, such as the cases involving people driving without a valid license.

Many of these drivers had their licenses suspended over unpaid fines and late fees that snowballed from previous traffic charges. For them, Escamilla simply wants compliance: Pay your fines; get your license reinstated; present proof of insurance; and the charge for driving without a license gets dismissed.

But others have a history of drunk driving or fleeing the scene of crashes. The last thing we want to do is allow them back on the road.

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“On marijuana, I can say, ‘I don’t care what the facts are of your marijuana possession. I’m going to give you the same deal,’” Escamilla said, referring to the four-hour class. Not so on the cases for driving without a valid license. “We have to sit there and look at the information (for each case) and say, ‘Yeah, you can get the offer, and you can, but not you.’”

Since the summer, that’s what’s been happening. Chu has systematically delayed hearings on the “cite and release” cases for unlicensed drivers, so Escamilla’s office can review them individually and decide who deserves a break and who deserves full prosecution.

The upshot: Many are getting a break.

Between June 15 and Aug. 30, based on prosecutors’ recommendations, Chu has downgraded nearly half of the unlicensed driver charges in his courtroom — 178 out of 418 — from Class B misdemeanors to Class C citations, which are akin to a traffic ticket. Most of the other cases are still being reviewed, he said.

Obviously, the downgraded charges bring less legal peril. Class B charges carry the threat of jail time, require time-consuming monthly court dates that are difficult for working people to attend, and can leave the defendant with a criminal record. Class C tickets entail none of those things.

“Our main objective here is to ease the burden, so people aren’t in the cycle of criminal justice activities where you go to court, you miss work, then you lose your job and you get into poverty issues, and these things spiral out of control,” Chu told me.

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Even with those getting the Class C ticket, compliance and dismissal are the goal. Chu and Escamilla steer defendants toward the Travis County law library, where clerks can help them navigate the state bureaucracy to regain their driver’s license or show them how to apply for a hardship license that allows them to drive for work and other limited needs.

Without any outside help, it can take six to 12 months for defendants to get their license reinstated through the Department of Public Safety, a process so frustrating that many drivers simply give up, plead guilty and remain stuck without a license, defense attorney Betty Blackwell told me.

Blackwell argues there’s a larger issue here: She’s been urging the arresting agencies, chiefly the Austin Police Department, to file more of these cases as Class C citations to begin with.

The Austin Police Department, which is reviewing its policies, says it’s been writing Class C tickets unless something more serious — such as the driver having an alcohol-related suspension, or no insurance — makes it a Class B charge. Police have legitimate public safety concerns: As of July, unlicensed drivers this year were involved in seven fatal wrecks and 56 crashes with serious injuries, and those driving without insurance put everyone else on the road at risk.

But the early results from Chu’s courtroom indicate a disconnect: Some of the cases that police find serious enough to warrant a Class B citation look more like Class C offenses to Escamilla’s office. The decision over which charge to file can have costly impacts for drivers who may already be financially stretched.

The sooner these agencies can get on the same page, the more the courts can focus on punishing the truly dangerous drivers — and helping those who are simply tied up in old fines get on their way.