While Some Politicians Question Cost Of Incarcerating Drug Offenders, Big Money and Bigger Forfeitures Keeps Texas Tough On Drug Crime

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


An increasing number of states have abandoned the traditional notion that the best way to combat drug use and trafficking is through the costly practice of extended incarceration. The Wall Street Journal last month reported that Kentucky joined the ranks of South Carolina, Colorado and New York to enact laws that shift spending into less expensive and more effective rehabilitation and intensive drug testing programs. Delaware, Florida, Indiana, Massachusetts and Pennsylvania are currently considering bills that would reduce drug penalties and direct some drug defendants into treatment programs.


The newspaper reported that while these drug law changes “are part of broader belt-tightening efforts, they also reflect a growing belief among state lawmakers that prosecuting drug offenders aggressively often fails to treat their underlying addiction problems and can result in offenders cycling in and out of prisons for years …” Many of these lawmakers are conservative Republicans, like State Senator Tom Jensen in Kentucky, who said he had long “bought into the tough-on-crime concept” and embracing the “rehabilitative model” has been “an education process.”


But not all conservative-leaning people are convinced. For example, Scott Burns, executive director of the National District Attorneys Association, told the WSJ that “you need to have serious consequences or repercussions in place if people use heroin, Oxycontin and other drugs.” Aaron Negangard, chairman of the Indiana Prosecuting Attorneys Council, agreed: “Crime will go up in five to 10 years and people will wonder why. It’s because we are letting too many people out of prison.”


FBI crime-gathering data shows that between 1980 and 2009 drug arrests in this country climbed from approximately 580,000 to 1.6 million. Texas was one of the states that watched its prison population rise exponentially until 2007 when, as WSJ reported, the state “began shifting more drug offenders away from prison, which helped hold down the inmate population. The changes cost $241 million, less than half what the state anticipated it would have spent to build three new prisons. The impact on the crime rate isn’t clear.”


Grits For Breakfast reported recently that in 2009 the Texas Department of Public Safety Uniform Crime Report revealed the state law enforcement made 133,191 arrests for drug possession which represented 88.9 percent of all arrests made for drug-related crime. And, more significantly, nearly 60 percent of all the 2009 drug arrests involved marijuana, “mostly for user-level possession.” Criminal justice observers like Grits point out that simply “reducing small pot possession charges to Class C misdemeanors” would free of valuable county jail space, conserve indigent defenders resources, and allow a greater police presence in high crime areas.


While some politicians in Texas may have softened their “tough-on-crime” approach to some drug offenders, most will continue to impose relatively stiff penalties for both drug possession and drug trafficking because of the profit motive for law enforcement and the related support industries that suckle off the war on drugs.  The drug war has created a penal system that has evolved into a “prison industrial complex,” a group symbiotic businesses that feed off the current system of detecting, detaining, treating and punishing drug offenders.  Exacerbating this reality is the fact that law enforcement now fully appreciates that, in these tough economic times, they can increase their funding through asset and property forfeitures related to drug crimes.


The harsh reality is that drug possession, no matter how slight, fuels drug trafficking. “Low-level” users make up the social demand that drug traffickers fulfill. And as long as possession is illegal, it will increase the level of trafficking which will allow law enforcement to make more “contraband” seizures which fill their coffers with drug money. For example, in one west Texas county, Miller County, in 2009, DPS officers made two drug busts that resulted in the seizure of $11.7 million—$9 million in one bust and $2.7 in another. During the same week the $2.7 million was seized, yet another DPS trooper in Hudspeth County made a drug stop that netted $850,000. The individuals arrested in the Miller County busts spent a few days in jail before being released allowing the local district attorney to seek forfeiture of the seized money, without opposition, pursuant to Art. 59.02 of the Texas Code of Criminal Procedure.


In order to secure a forfeiture of “drug cash,” the State must prove “by a preponderance of the evidence” that the cash is contraband; in other words, that it is “proceeds from illegal drug trafficking.” Although Chapter 59 does not provide any “additional evidentiary requirements” beyond proof that the money is “contraband,” the Texas Supreme Court has ruled that the State must also “show probable cause for seizing a person’s property.” In the context of forfeiture statutes, the Fifth Circuit Court of Appeals has held that probable cause is a reasonable belief that “a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute.” Texas courts, interpreting  Chapter 59, have ruled that “contraband is money derived from or intended for use in manufacturing, delivering, selling, or possessing a controlled substance.”


Art. 59.02(c) provides an “innocent owner” affirmative defense. Under this defense, once the State satisfies its “preponderance of the evidence” burden, the burden shifts to the party claiming the “innocent owner” defense to prove that he/she acquired “ownership interest in the property prior to, or during, the act giving rise to forfeiture.”


The “innocent owner” defense is not a real defense in many drug money seizure cases, especially when law enforcement decides to release the suspects without charges. The individuals caught with the money are often released, never to be seen again, paving the way for a forfeiture free from any contest under Chapter 59. The Houston Chronicle reported this past January that drug cartels smuggle “billions of dollars” each year back into Mexico and Columbia. The money comes from those “possession” cases involving millions of “low level users.” The Chronicle report came on the heels of $523,000 being found in the cab of a “flatbed trailer truck” in Fort Bend County. “[The drug cartels] have probably done this a 1,000 times and got sloppy and relaxed [on this one],” Capt. R. Glendening of the Fort Bend County Narcotics Task Force told the newspaper.


Houston is a focal point of this drug money smuggling activity. That was evidenced in the Fort Bend seizure case. Narcotics investigators, who would not disclose what made them “flag” the truck for surveillance, said the truck, which was loaded with sandbags, was picked up in Houston, followed everywhere the driver went, and ultimately pulled over in Fort Bend County. A broken tail light gave them the “probable cause” needed to stop the truck. It will never be known if the broken tail light was due to the carelessness of the smugglers or an enterprising undercover drug operative. But it was probably carelessness in this particular case because the smugglers barely concealed the cash which was “shrink-wrapped in plastic and sitting under a cot,” making it easy suspiciously to find.


The truck driver, a U.S. citizen from Mission, was released from custody. To reclaim the money, he would have to present the “innocent owner” defense under Chapter 59 in a forfeiture proceeding. Clendening would only tell the Chronicle that the driver was a “blue collar guy” who owned a “small trucking company” and had fell under the sway of the drug cartels.


One thing is absolutely certain: the smuggling of drug money back to the cartels in Mexico and Columbia is “big business.” The Austin Statesman reported in February that since 2006, some$140 million dollars in drug money has been seized along the Texas border. Texas Department of Public Safety Director Steve McCraw testified recently before state’s Senate Finance Committee during budget hearings, informing lawmakers that federal law enforcement officials estimate that as much as $28 billion in “drug money” leaves the United States via the Mexican border each year. McCraw told lawmakers that “two-thirds” of the cash flows though Texas.


Finance Committee Chairman Steve Ogden, R-Bryan, was impressed, commenting out loud: “That’s the Medicaid budget.” The flow of money is so staggering that some lawmakers like Ogden have raised the possibility that seized drug money could be utilized to finance “additional border security checkpoints” to seize even more drug money. McCraw definitely knew how to sing a tune in concert with the expectations of the lawmakers, telling them that with “additional officers and checkpoints” to examine “trucks and other vehicles headed into Mexico,” Texas could increase drug money seizures by 12 percent.


The Statesman reported that currently a “percentage of the seized money goes to prosecutors,” and, according to McGraw, the rest goes “into state coffers, depending on whether federal police agencies are involved in the bust.”


The amount of money certainly had lawmakers seeing “proverbial green” as they realized more of the seized drug money could be legislatively earmarked to offset budget shortfalls. “If we’re going to spend $50 million [to seize more drug money] we ought to get some credit for this in the budget,” Odgen told him fellow lawmakers. The Committee Chairman then instructed the state’s comptroller’s office “to investigate how much the state might legally lay claim to in a two-year period so it could be used in creating a budget.”


But State Sen. Dan Patrick, R-Houston, cautioned the committee that lawmakers did not want to put the DPS “on a sales commission” by funding it based on the level of drug money it seizes. While Director McGraw may have appreciated the warning, he nonetheless encouraged lawmakers to get more involved in the “drug money” business, telling them “the money, the cash is out there.”


Of course, McGraw had self-serving interests in dangling the “drug money” seizures before lawmakers who, because of a $27 billion dollar shortfall, were contemplating a reduction of as many as 650 DPS employees, a $110 million cut in “operating funds,” and even administrative changes that would require “troopers [to] pay to have their uniforms cleaned and pay more for insurance and benefits.”


While many other states, as reported in the WSJ, are reducing incarceration and investing more in “drug rehabilitation” programs, Texas lawmakers are seriously considering cutting 1800 prison jobs, shutting down 3,000 prison beds, and, as the Statesman reported, “downsizing rehabilitation and treatment programs that keep prisoner numbers from growing …” State Senator John Whitmire, D-Houston, warned that “in the next two years, when there is a moderate growth projected in our offender populations, we’re thinking about closing beds and laying off 1,800 people—including 636 front-line correctional officers. That’s nuts.”


What’s worse is this prospect: the need for seizing more drug money heading out of the country could possibly translate into lesser investigations detecting “drug smuggling” into the country. The amount of drug money leaving the country is tied directly into the amount of drugs entering the country. The math is easy: more drugs, more sales, more money that must be smuggled out, and the greater likelihood of drug money seizures. And with lawmakers shutting down drug treatment and other rehabilitation programs, the “revolving door” of repeat drug possession/user offenders will steadily increase—and with the reduction of available prison bed space, these offenders will be re-cycled back into the community after each arrest which will ensure the “steady flow” of drug money out of the country.


And, my friends, that’s called the “drug business.” Although law enforcement officials will never admit it, they now have mutual interests in increased “drug sales” because, like the cartels, they want, and need, the “drug money.” We expect Chapter 59 forfeiture cases will skyrocket over the next few years.


The bad news for law abiding citizens who believe in saving cash is that if you are stopped with a bundle of hard earned green backs, it is likely to be seized as “possible “drug money.”  So, you better be prepared to prove it is legitimate and fight to get it back, otherwise it will designated for a down payment on a new cruiser for the sheriff’s department.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization