Same Crap, Different County: Another Small Texas Town Overpunishes Another Piddly Drug Offender

Categories: Courts
crack_cocaine6.jpg
Photo courtesy DEA
A lot more crack than Melvin Johnson had
Think 35 years for a brick or so of pot is bad?

Try this one on for size...

In a case one local defense attorney has said showed "shades of Tulia," a Bay City man was sentenced to 60 years in prison for possessing 1.3 grams of crack.

Melvin Johnson III, 35, was convicted of possession with intent to deliver in January at the Matagorda County Courthouse.

His sentencing was held amid very tight security -- Johnson was shackled and extra deputies were brought in to conduct Johnson to and from the courtroom. According to the Bay City Tribune, observers feared violence because Johnson had refused to place his thumbprint on his judgment of guilt the court had entered an hour before.

At his trial, assistant DA Carla Post seemingly attempted to portray Johnson as the crack kingpin of Bay City. Under her direct examination, a Matagorda County sheriff told the court how his department had kept Johnson's alleged crack-peddling operation under surveillance and had acted on "the covert assistance of local citizens" in building their case. Using that information, they approached a local magistrate who signed a warrant.

Three days after the warrant was signed, Johnson's home was stormed by a SWAT team as Johnson's teenaged son played basketball in the driveway. The Matagorda County cops explained the delay between the signing of the warrant and its execution on their needing time to bring in the SWAT team -- Johnson does have a felony conviction for retaliation on his record.

After scouring the house, they found two crack-rocks weighing a total of 1.3 grams in the pocket of a jacket hanging on the door. That little pocketful of stones got Johnson six decades in TDCJ. (It bears mention that a United States dime weighs 2.2 grams. Crack kingpin Johnson was found to be in possession of one-half of a dime's weight in cocaine.)

The jury believed Matagorda County DA's Post and Steven Reis when they contended that there was no evidence that Johnson was manufacturing or using his tiny stash of cocaine. The two prosecutors stated that "all the evidence supported only the 'reasonable deduction and common-sense belief that Johnson possessed these drugs to sell them,'" and narcotics investigator James Nesbitt testified that "known crackheads" frequented Johnson's residence.

Cary Faden, one of Johnson's attorneys, asked Nesbitt if he could prove that Johnson was at home every time these known crackheads came calling. Nesbitt admitted that he could not. And Johnson's other defense lawyer, Michael Diaz, countered that there was no way to telepathically divine Johnson's intent.

The jury disagreed. Johnson was convicted. Since he had a felony conviction, and because intent to deliver is a more serious charge than simple possession, and maybe, just maybe, because Bay City is a merciless little town that lives up to the Texas stereotype about drugs and black defendants, Johnson was sentenced to 60 years.

"It's just pointless," says Scott Henson, of the award-winning state criminal justice blog Grits For Breakfast. "Even if you are the most law-and-order person in the world, there is simply no point in sending someone to jail that long for a gram of crack. All it does is make you feel good for being retributive."

Indeed, according to the Bay City Tribune, it did appear that the jurors felt pretty satisfied with what they had done. It was reported that after the proceedings, they palled around with the prosecutors. "We live in this town and raise our children in this town," one of the jurors told the DAs. "We want to help clean up our city."

And burden the rest of us with feeding and housing this guy until 2070. Henson believes that these kind of sentences are a "luxury" the state of Texas can no longer afford. He says that in 2007, many of the larger, more urban counties realized the magnitude of what was then a looming prison-bed shortage and have since availed themselves of greatly enhanced statewide diversion programs for drug offenders that have strong probation sentences as their centerpieces. Accordingly, the prison-bed shortage never materialized, as counties like Harris, Dallas, Tarrant and Travis scaled back the incarceration of low-level drug offenders.

But Henson thinks the smaller counties, like Smith (site of the 35-year pot sentence) and Matagorda, haven't got the memo yet. "These crazy-long sentences are still the culture there," he says. "These sentences were supposed to be thwarted by the diversion programs, but these places haven't got the message yet."

Matt Simpson, policy strategist for the Texas American Civil Liberties Union, points out that incarcerating Johnson for his full 60-year sentence will cost Texans over a million dollars. "How much drug education could you buy for a million dollars?" he asks. "How many rehabilitation programs could you fund for that money? Is this the highest and best use for the state's money in this case?"

And expenses like this take on greater import with the state and many municipalities facing budget shortfalls. Governor Perry has stated that he wants a five-percent budget cut for TDCJ.

Henson has an elegant little solution: an across the board discount in drug penalties. He would have them max out at what is now a second-degree felony instead of first. Less than a gram possession would be a Class A misdemeanor.

"Simultaneously, he writes, "they should invest a portion of the savings in stronger probation and reentry programs."

Besides just being fair and the right thing to do, the move would immediately reduce pressure on the prison system, allowing the state to save money by closing prison units or eliminating private prison contracts. Other states are considering similar measures in light of the budget crunch; most recently Colorado saw legislation filed along these lines.

The biggest complaint would come from overcrowded county jails don't want to deal with offenders currently sent off to so-called "state jails" for the equivalent of fourth-degree felonies. But those extra prisoners could be more than offset by similarly ratcheting down marijuana penalties in the misdemeanor range. That would make low-level pot possession cases (less than 2 oz) a Class C misdemeanor that generates ticket revenue instead of a Class B which clogs up misdemeanor courts and runs up unnecessary indigent defense bills, generating cost savings at all levels of government. (Where are the small government conservatives when you need them?)

Where indeed?



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