Dateline Houston

Pop quiz. Which is worse: A) someone starving to death, or B) littering?

If you answered B), you might want to run for Houston city council.

In March, a Houston police officer ticketed a homeless man for digging through trash in search of food. James Kelly, a 44-year-old Navy veteran, was cited for “disturbing the contents of a garbage can in [the] downtown business district.” The rule cited was a 70-year-old anti-scavenging statute that’s been revised over the decades to expand the types of containers protected from, in the law’s original language, “molesting.”

HPD defended the ticket at first, explaining in a statement, “It is a violation for anyone to remove any contents … placed for collection of garbage, trash or recyclable material. An officer has probable cause to issue such a citation when a person is seen opening a lid and rummaging through contents of a dumpster or trash can.”

But then the story went viral. Media outlets from Fox News to the Huffington Post ran indignant squibs about the ticket. That’s when HPD clarified that Kelly wasn’t cited for trying to feed himself but for littering. “It’s not officers being inhumane,” Houston Police Officers’ Union President Ray Hunt told the Houston Chronicle. “It’s police officers responding to citizens’ complaints about someone removing garbage from their garbage can and leaving it on the ground. It’s creating a mess.”

Hunt said officers wouldn’t ticket someone just for removing food, although, according to the citation itself and the original HPD statement, Kelly was cited not for littering or for removing food but for having given an officer probable cause to believe he might remove food.

Still, police don’t make the laws. The Houston city council makes the laws that govern where and how their 40,000 homeless constituents can, or rather cannot, eat. Last April, over strenuous community objection, the city council passed an ordinance that banned giving food to more than five needy people at once without written permission from the property owner. On public property, that means getting permission from the city.

Mind you, businesses don’t need permission to host a picnic in the park. The statute only applies to “charitable” food service “to benefit those in need.” Originally, the statute included provisions about safe food handling and was presented as protection for the homeless against food poisoning, though the city never offered proof that this was actually a problem. During the month-long debate that followed, all the food-safety elements were stripped away, and though city laws already forbade trespassing and littering, the new ordinance passed, stipulating a $500 fine for violators.

After the fracas over James Kelly’s ticket, Houston mayor Annise Parker asked the city council to repeal the anti-scavenging statute. They balked, so she asked that they repeal part of it, then that they repeal only the part that applied specifically to what Kelly was cited for: picking through a public trash can.

The city eventually dismissed Kelly’s ticket. But at press time, the council was still debating whether to change anything at all about the rule that made his search for food a crime.

Texas lawmakers have filed more than a dozen bills this session that augment or add restrictions to the behavior of registered sex offenders, of whom Texas now has over 72,000. That’s normal—sex offenders don’t have a lot of constituent clout and making them list their status on a driver’s license or social media profile is a low-cost, low-risk way to look tough on crime.

What’s unusual is that the Texas Senate recently passed a bill that would remove employer information from the public registry. Senate Bill 369 is by Houston’s Democratic state senator John Whitmire. Right now, you can look up an offender’s name, race, height, weight, hair color, eye color, shoe size, home address, birth date, and employer name and address. Dropping the last two wouldn’t be for the good of offenders, but of the businesses they work for.

“The employer didn’t commit an offense,” says Marc Levin, director of the Texas Public Policy Foundation’s Center for Effective Justice. “There’s a lot of concern about employers being harassed, vigilantism. Certainly there are a lot of studies showing that families of sex offenders have been subject to harassment and even criminal activity.”

Levin says the House version of the bill, HB 879, also met enthusiastic support in committee.

“The risk that a sex offender may reoffend is actually lower if they’re employed,” Levin says, so along with protecting employers, the reform may increase public safety.

But that kind of pragmatism is a slippery slope toward reality-based policy. No research has ever suggested, let alone proved, that public sex offender registries prevent crime or reduce recidivism. (Check out “Life On the List,” our cover story from last June, for extensive documentation of what the list doesn’t do.) And research does show that the perennially popular laws restricting offenders’ movement, employment, schooling and home hinder successful reintegration.

The registry continues to swell, and all that monitoring takes public money and law enforcement time and attention. So will the TPPF, a free-market think tank that has supported a variety of right-on-crime reforms, ever oppose the registry itself?

“We haven’t gotten into the question of whether we should have one,” Levin says. “But there is a concern that the registry encompasses too many people that aren’t predators to be effective.”

Observers of Texas’ inarguably messed-up criminal justice system will lately have noticed a change in the state’s tune. Decades of tuff-on-crime policies turned out to be super-expensive to implement, so leaders across the state have started amending those policies and prioritizing whom they incarcerate, a posture shift called “right on crime.” As a result, after 10 years of Texas’ prison population growing by an average almost half a percent annually, that number actually dropped 0.7 percent between 2010 and 2011.

Great, right? Great for taxpayers who aren’t paying to house and feed as many of their felonious brethren (especially nonviolent offenders better off in rehab); great for cops, who can dedicate their limited resources to the most serious crimes; and great for penny-ante dope fiends with a taillight out.

A solid example of “right on crime” is—er, was—Houston’s “trace case” policy. When Republican Pat Lykos was elected Harris County district attorney in 2010, she changed the long-standing policy of prosecuting possession of “trace” amounts of drugs as a felony. A trace amount is defined as less than of 1/100th a gram; in most cases, it refers to the burned residue inside a used crack pipe. (If your ears are pricking up about a policy that would, in practice, usually apply only to one kind of drug user, you’re not alone. More on that in a minute.) Lykos made possession of trace amounts of drugs a misdemeanor.

That single change cut the number of citizens arrested in Harris County for felony drug possession by half. It freed up prison space, took paraphernalia cases off the perennially overbooked Houston Police Department Crime Lab, and saved money—pretty important, as Harris County spends about 70 percent of its total budget on criminal justice.

It also aligned Houston with other large urban counties in Texas and with what’s probably constitutional: One one-hundredth of a gram is too small a sample to analyze twice. Testing the evidence destroys it, so the defense can’t do its own analysis.

That’s why the Texas Criminal Justice Coalition and many others were so dismayed to see the new Harris County DA Mike Anderson reinstate felony prosecution for trace cases. Anderson’s promise to do so was one reason he trounced Lykos in the Republican primary last year; Houston police openly hated Lykos’s reform.

“These crackheads are the people who are breaking into motor vehicles to steal your laptop off the front seat, to grab the purse that’s visible, all those things they can sell for $25 to go buy another crack rock,” said Ray Hunt, president of the Houston Police Officers’ Union, to the Houston Chronicle.

But as a new study by Texas Criminal Justice Coalition points out, both property and violent crime in Houston continued their precipitous drops through the two years of Lykos’s policy.

Besides being a resource hog without a demonstrable effect on crime, prosecuting trace cases as felonies perpetuates a historical injustice of unequal enforcement for illegal drugs. Will cops start pulling over Jaguars and looking for straws caked with what might not be 1/100 of a gram of Splenda?

The Houston Police Department’s own annual report on racial profiling says no. Although only 19 percent of Houstonians are black, more than half of all HPD “consent searches” in 2012—searches without probable cause—were of black drivers. And while research consistently shows that whites and blacks use illegal drugs at similar rates, blacks make up almost half of arrestees for felony drug possession in Houston.

Hey–you can’t spell “trace” without “race.”