Texas Drug Laws Changed Little Under Bush
Washington Post Staff Writer
Monday, September 20, 1999; Page A3
AUSTIN—In his 1994 campaign for Texas governor, George W. Bush accused incumbent Ann W. Richards (D) of being soft on crime, attacking her for signing a law that required probation for felony defendants convicted of possessing or distributing less than a gram of certain drugs, including cocaine.
The law, which prevented small-time drug violators from being jailed, "sends the wrong message to felons," Bush wrote in the Houston Chronicle a few weeks before defeating Richards that year. "I will change it," he said. "Hard prison time, not automatic probation, will send a message that criminals cannot snub their nose at Texas's criminal-justice system."
Five years later, with Bush the front-runner to be the 2000 Republican presidential nominee, his record and rhetoric on drugs have come under close scrutiny. Pressed by reporters on whether he ever used cocaine, Bush first refused to answer the question, then effectively ruled out any drug use since 1974, when he was 28. But by leaving open the possibility that he used illegal drugs while an adult, he invited criticism that a hard-line position on drug use was hypocritical.
Jesse L. Jackson, for example, said that Bush was "a rich man's son . . . caught in a poor man's trap" and therefore would be forced to modify his strict position on drug use.
However, interviews with criminal justice experts here suggest that despite Bush's rhetoric during the 1994 campaign, the state has not substantially increased penalties for drug offenders. The system of drug laws in place before Bush's election, according to the experts, remains fundamentally the same. And while Bush did sign a law eliminating mandatory probation for possessing or distributing small amounts of drugs, it had a relatively small effect on how Texas judges have administered the drug laws.
The idea that Bush has crusaded against drug violators "is the premise from which people operate when they ask the hypocrisy question," said Bud Kirkendall, a Bush supporter and president-elect of the Texas District and County Attorneys Association. But "it's a false premise," said Kirkendall, a Republican prosecutor, noting that Bush's anti-crime agenda has focused mainly on sex offenders and violent juveniles.
Michael Heiskell, president of the 2,100-member Texas Criminal Defense Lawyers Association, agreed. "He hasn't revolutionized the [drug law] system or even changed it in any significant way," Heiskell said of Bush.
As he campaigns for his party's presidential nomination, Bush can point to Texas laws making it easier for the state to curtail drug violators' driving privileges and welfare benefits. He also has signed laws enhancing penalties for drug crimes in school zones and making it possible for 14-year-old defendants to be sentenced as adults for major felonies, including those involving drugs.
In practice, however, those laws have not generated a rush of new drug prosecutions or resulted in longer prison terms for a large number of offenders, according to court officials and others who monitor the system.
For example, during Richards's term, 1991 through 1994, an average of 26,457 new felony drug cases were filed annually in Texas, according to the state court system's administrative office. The annual average during Bush's first four years as governor, 1995 through 1998, was 26,597, the office said.
And even though Texas's prison system has vastly expanded under a $2 billion building program begun while Richards was governor, the number of inmates incarcerated for drug offenses has barely changed from year to year during Bush's term, according to the Texas Department of Criminal Justice, which runs the prisons. In fact, the figure has dropped slightly, from 31,200 shortly after he took office to 28,600 as of last summer, the department said.
The law on 14-year-old defendants allows frequent juvenile offenders to be "certified" as adults for crimes including murder and other violent felonies and for drug crimes punishable by at least five years in prison, such as possessing 200 or more grams of cocaine. But few if any 14-year-old drug violators have been prosecuted under the law, which took effect in January 1996, said Tony Fabelo, director of the Texas Criminal Justice Policy Council.
The biggest change in Texas drug laws this century occurred in the early 1970s, when the state legislature scrapped a Draconian narcotics code that had been in place for generations. It was simple and uncompromising: Possessing almost any illegal drug in any amount was punishable by a minimum of two years in prison and up to life--punishments that were imposed disproportionately on blacks and Hispanics, according to lawyers who practiced at the time.
The new statutes, which took effect in 1974 and have been modified many times since, set graduated penalties for possession and distribution based on weight and type of drug, a sentencing scheme common in state courts across the country.
Bush's record on drug laws can best be understood in the context of the huge changes made to Texas's criminal justice system in the early '90s, under Richards, in response to a decade of rising crime and a shortage of prison space, lawyers and judges said.
The mandatory-probation provision, for example, was a far more complicated issue than Bush made it seem in his criticisms of Richards during the 1994 campaign. Although Bush cast it as a question of philosophy, the provision, according to criminal justice experts, was part of the process of creating the mostly smooth-running criminal justice system that he eventually inherited.
By the late '80s, rising crime had left Texas's then-undersized prison system in a crisis. Tens of thousands of convicted defendants were being kept in county jails awaiting transfers to state penitentiaries that had no room for them. Out of necessity, Texas's annual parole rate--the number of paroles approved as a percentage of cases reviewed--hit an all-time high of 79 percent in 1989 under then-Gov. William P. Clements, a conservative Republican.
Horror stories abounded of violence committed by longtime criminals released from Texas's "revolving door" prisons. Under Richards, the state not only embarked on the $2 billion prison-building program, which would take several years to complete, but drastically reduced parole approvals. By 1994, her final year in office, the rate was 29 percent, according to corrections officials.
To clear penitentiary space so violent offenders could be held longer, legislators in 1993 created a new category of crime called a "state jail felony." Many low-level, nonviolent felonies--including possessing or distributing less than a gram of certain drugs--no longer would be punishable by penitentiary time. Violators would be sentenced to lower-security state jails for 180 days to two years.
There are 17 such jails today, but in the early 1990s there were none. Until they could be built, and until officials could gauge how many defendants the new crime classification would produce each year, the law (signed by Richards) required that a convicted jail-felon was to receive probation--although the probation could be revoked for a second offense and the violator locked up.
The probation provision was devised with the expectation that it would be eliminated once the criminal justice system had adapted to the new statute, according to lawyers and others involved in drafting it. Although judges and law enforcement officials hated it, "they went along with it, with the promise that it would be changed in time," said John Bradley, a former state Senate legal counsel who helped write both the provision and its subsequent repeal under Bush.
"Ann Richards was no more in favor of automatic probation than anyone else," said Ken Anderson, a Republican district attorney near Austin and author of a guidebook to Texas criminal laws and courts. "She knew she was going to get creamed on it. Everybody knew that. But it had to be done, temporarily."
Bush signed a law eliminating the provision in 1997--by which time all the new state jails, conceived under Richards, were up and running. Yet even with the provision gone, the majority of small-time drug offenders who automatically would have been spared incarceration under the original law are routinely granted probation anyway, according to prosecutors, judges and defense lawyers--although judges now have the discretion to lock up the relatively small percentage of violators whom they feel deserve it.
As of February, 57,000 convicted jail-felons were "under supervision" in some form, about half of them drug violators, said Fabelo of the Criminal Justice Policy Council. Of that total, he said, 45,000 were free on probation.
"I've called [Bush] a good steward of the system," Kirkendall said. But by the time Bush arrived, "the system was already in place."
© 1999 The Washington Post Company