Dateline Houston

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.”

www.uscourts.gov

The Associated Press recently described the U.S. 5th Circuit Court of Appeals, which encompasses Texas, Louisiana and Mississippi, as a “corporation-friendly, pro-prosecutor foe of death penalty appeals and abortion rights advocates.”

Succinct!

But in the next four years, President Obama may have the chance to moderate this most conservative of appeals courts.

Right now, the 5th Circuit has 10 judges appointed by Republican presidents, five by Democratic presidents, and two vacancies. But by 2016, seven of the Republican-nominated judges will have turned 65, making them eligible for “senior status,” a voluntary semi-retirement that would allow Obama to appoint their successors.

This doesn’t guarantee a huge ideological swing for the 5th Circuit. Judges aren’t required to assume senior status—five judges are currently eligible but continue to serve—and some Republican-appointed judges might choose to wait out Obama’s second term before retiring.

That said, it is mathematically possible for the 5th Circuit Court of Appeals to go from two-to-one Republican-appointed judges to four-to-one Democrat-appointed by 2016.

A slim blue majority is more likely. Assuming the president can get his nominees confirmed, Obama needs just two Republican-appointed judges to accept senior status to tip the court’s makeup.

But if any of those seven eligible Republican-appointed judges hang up their robes, the 5th Circuit stands to lose a lot of pizzazz. Here are a few of the eligible judges’ more colorful decisions:

The Honorable Jerry E. Smith (eligible for seniority in 2011) wrote the majority opinion in 1996’s Hopwood v. Texas, ending the University of Texas’ use of affirmative action. He also wrote the panel opinion overturning the EPA’s ban on asbestos in 1991’s Corrosion Proof Fittings v. EPA, which required the EPA, from then on, to do a cost-benefit analysis before banning a toxic substance. (Yeah, why does everyone always talk about the downsides of asbestos?)

The Honorable Edith Brown Clement (eligible this year) joined two other judges in affirming dismissal of a free-speech lawsuit by a high school basketball cheerleader who was kicked off the team for refusing to chant the name of her alleged rapist. But 5th Circuit judges went one better than the lower court. They declared the lawsuit frivolous and ordered the girl to pay her high school $45,000 in legal fees.

George W. Bush appointed the Hon. Leslie Southwick (eligible in 2015) over strenuous objection from gay rights and minority groups who were alarmed by Southwick’s record as a judge on the Mississippi Court of Appeals. In 2000, Southwick joined the majority in reinstating a state social worker who’d been fired for calling a black coworker a “good ole n***er,” a slur characterized by one witness as only “somewhat derogatory” because the social worker was “in effect calling the individual a ‘teacher’s pet.’” In 2001, Southwick joined the court in upholding an award of sole custody to a father because the mother, who had been primary caregiver, was a lesbian.

But by far the greatest loss of 5th Circuit flavor would be if former Chief Judge Edith Jones (eligible in 2014) takes senior status. Once referred to as the “horsewoman of the right-wing apocalypse,” Judge Jones regularly uses irony quotes around the words “rights” and “choice.” She’s a strenuous foe of abortion rights, having upheld Mississippi’s requirement that a minor get permission from both parents to get an abortion, even in a home with documented abuse. And last February, Jones vacated a lower judge’s injunction stopping enforcement of Texas’ mandatory sonogram law, adding that without the Clockwork Orange-like procedure, a woman isn’t “fully informed.”

As the national debate over gun control rages, Texas’s leaders have identified that against which we must all be most vigilant:

An excess of… whimsy.

Yesterday, New York state passed the nation’s most stringent gun-control law. The next blessed day, Texas’s Attorney General, Greg Abbott, had an online ad appearing on New York websites telling law-abiding, gun-totin’ Yankees to come enjoy the “lower taxes and greater opportunity” enjoyed by the Lone Star State.

“We’ll fight like hell to protect your rights,” it actually says, not as a joke. “You’ll also get to keep more of what you earn and use some of that extra money to buy more ammo.”

Eric Bearse, a spokesperson for Abbott, told the Daily Beast that they placed the ad because in Texas, the Constitution is held “sacred” and protects Americans from “whimsical and knee-jerk reactions by political leaders.”

In related news, several writers for late-night talk shows simultaneously punched the air with gratitude. (Not really, but probably.)