Hays County DA Kelly Higgins campaigned on reforming marijuana enforcement, promising to prioritize more serious crimes. In the office, he has declined many cases, but some were still filed and led to convictions.
Hays County DA Kelly Higgins’ Marijuana Enforcement: Promises vs. Realities
Kelly Higgins’ bold campaign promise drew significant attention: “It rattles the local judges, prosecutors, and defense lawyers a little bit when I say it, but there won’t be any more simple cannabis possession cases filed in Hays County after I am sworn in in January 2023.” This declaration resonated with voters eager for reform and resource reallocation away from minor marijuana offenses.
Campaign Promise: A Vision for Change
Higgins campaigned on the premise that prosecuting minor marijuana offenses was an inefficient use of resources and perpetuated unjust outcomes. He pledged to redirect law enforcement focus toward more serious crimes, aligning with the growing public sentiment for marijuana decriminalization. This stance helped secure his election victory, with voters anticipating a significant shift in prosecutorial priorities.
A Year in Office: The Reality of Enforcement
Upon taking office, Higgins faced the challenge of turning his campaign rhetoric into actionable policy. The statistics from January 1, 2023, to March 21, 2024, reveal a nuanced enforcement approach:
- DA Declined: 155 cases (42.2%)
- Pre-File Status: 99 cases (26.9%)
- Filed: 52 cases (14.2%)
- Dismissed: 21 cases (5.7%)
- Disposed/Convicted: 10 cases (2.7%)
- Deferred Adjudication: 6 cases (1.6%)
- Pre-Trial Intervention: 2 cases (0.5%)
- Dismissed PTI: 2 cases (0.5%)
- Case Closed, Administrative: 1 case (0.3%)
While many cases were declined or placed in pre-file status, a notable number were still filed and even resulted in convictions. This raises questions about the degree to which Higgins has honored his campaign promise.
“It rattles the local judges, prosecutors, and defense lawyers a little bit when I say it, but there won’t be any more simple cannabis possession cases filed in Hays County after I am sworn in in January 2023”
Kelly Higgins to The Hawk’s Eye – Consulting & News in a June 15, 2022 story
Post-Election Q&A: Higgins’ Justifications
In a Q&A session with The Hawk’s Eye – Consulting & News, Higgins offered insights into his marijuana enforcement policies:
1. What is the rationale behind the high rate of declinations in misdemeanor marijuana cases?
Higgins: “It’s primarily a question of resources. Where we see otherwise innocuous conduct with a small amount of marijuana, we allocate our resources elsewhere.”
Higgins explained that the decision to decline many marijuana cases was based on the need to prioritize more serious crimes. He emphasized the inefficiency of using limited prosecutorial resources on minor offenses that do not pose significant public safety risks.
2. How does your office determine which cases to file and which to decline or divert?
Higgins: “Where there is more, like casing vehicles for burglaries, the presence of firearms, or other offenses, we are more likely to include POM charges. More generally, we are weighing our ability to prove up the case, impact upon victims, history of the defendant, and the gravity of the conduct. Unfortunately, we must also weigh the limitations on lab testing, which is now necessary in any marijuana prosecution. Previously, where all cannabis was prohibited, lab tests were not always necessary. Currently with various types of cannabis legalized by the legislature, lab testing is absolutely necessary. DPS limits our access to lab testing, and we use it for fentanyl, meth, heroin, and other pharmaceuticals and opiates far more often than for cannabis.”
Higgins highlighted that the presence of other criminal activities often necessitates the inclusion of marijuana charges. This nuanced approach aims to balance the office’s resources and the broader goal of community safety. Additionally, he emphasized that lab testing limitations are a significant factor; the state’s Department of Public Safety (DPS) prioritizes testing for more dangerous substances like fentanyl, methamphetamine, and heroin over marijuana, influencing the decision-making process.
3. Can you explain the criteria used for placing cases in pre-file status or pre-trial intervention programs?
Higgins: “Pre-file status is an administrative state which all cases move through. Simply means we have not yet made a filing decision, often because we are still waiting for evidence, such as lab reports. Pre-trial Diversion, or PTD, is a new approach we’ve implemented to detour people out of the criminal justice system where appropriate. To be selected for PTD, intake attorneys identify likely cases and staff them with a Diversion Review Committee of lawyers from the misdemeanor and felony divisions, and myself. This committee ratifies or denies admission to PTD. Criteria: we’re looking for minimal criminal history, no one hurt, no firearms in the picture, and predictions of success within the guidelines of the program. PTD is not excessively demanding, and we are seeing defendants opt into PTD when they are invited. The hope behind PTD is that people will modify or improve their future conduct without the intervention of the court system. It’s less expensive, and it doesn’t leave people with bruises that show for life.”
Higgins introduced the PTD program as a way to handle minor offenses outside the traditional court system. This initiative aims to rehabilitate offenders without the long-term consequences of a criminal record. The PTD process involves a Diversion Review Committee that evaluates the potential for successful rehabilitation, aiming to prevent future criminal behavior and reduce the burden on the court system.
4. How do you balance the need for law enforcement with the public’s evolving views on marijuana use?
Higgins: “I don’t understand the question. Law enforcement has been supportive of our decisions, and of course the public is less and less interested in marijuana prohibition over the last decade or so. In my discussions with rank and file law enforcement, they feel much the same as the public. There’s nothing to balance here. A better question would be: How do we balance Law Enforcement’s desire to get away from POM arrests and the public’s distaste for marijuana enforcement with vague allegations from singular voices that the entire system will crumble unless we continue to throw kids in jail and spend tax dollars on punishing them for smoking a joint, ruining their chances to succeed at life. And I just put those two considerations on a scale, and I see that Law Enforcement’s goals and the public’s opinions matter more than cries that the sky is falling. The sky is actually clearing, and violent crime is getting all the attention we’re not giving to kids smoking a joint at the park.”
Higgins underscored the alignment between law enforcement and public sentiment, noting that both groups see the value in focusing on more serious crimes rather than minor marijuana offenses. He emphasized that law enforcement officers, similar to the general public, are less interested in pursuing marijuana prohibition and prefer to prioritize more significant threats to community safety.
5. What outcomes have you observed from implementing deferred adjudication and pre-trial intervention programs for marijuana cases?
Higgins: “The PTD program has been up for less than six months. The period of participation is often more than six months. So we don’t know yet. We have not yet had anyone fail out of the program. Deferred Adjudication is a litigation result created by the legislature. The only different outcome with Deferred Adjudication is that a person is not convicted of the charge that they are placed on probation for. I do not consider these two approaches to be similar. PTD is not probation. PTD is an agreement between our office and a defendant and does not involve the courts at all. We simply invite a defendant to submit to the program for a specified time, during which time they may be required to take a class or submit UAs. It isn’t especially demanding, and because of that, it’s not for everyone. Deferred Adjudication requires a plea in open court, and results in the court’s supervision of the defendant for the probationary period. People on Deferred can be subsequently revoked and imprisoned. Not so with PTD, although we do reserve the right to file charges if the person doesn’t live up to the agreement.”
Higgins noted that it is too early to assess the full impact of the PTD program, as it is still in its infancy. Deferred adjudication, on the other hand, offers an alternative where individuals can avoid a conviction if they comply with probationary terms. He clarified that deferred adjudication involves a plea in open court and court supervision, while PTD is an agreement directly with the DA’s office, aiming for less severe interventions.
6. How do these alternative resolutions impact recidivism rates compared to traditional prosecution?
Higgins: “A question for a researcher, I suppose, on a very large scale. Also, defining the term ‘traditional prosecution’ would be important. If you mean prosecution that charges every possible thing and pursues maximum penalties every time, then this is way better than that. I am less concerned with recidivism than with safety now. I don’t believe our prison system is designed for or capable of preventing a released inmate from re-offending. I would support a broad reform of our prisons to achieve those goals, but throwing someone into a Texas prison was never meant to make them a better person. Maybe it should be. It’s beyond the purview of this office to address that, but I’d vote for a gubernatorial candidate who wanted to try.”
Higgins expressed skepticism about the effectiveness of traditional prosecution methods in reducing recidivism. He emphasized a focus on current safety and suggested that systemic prison reform is necessary to address re-offending rates effectively.
7. What feedback have you received from the community and stakeholders regarding your current marijuana enforcement practices?
Higgins: “I’ve gotten very positive responses from the public and law enforcement. I can tell you that law enforcement wants to be able to arrest for POM when they feel the circumstances warrant arrest. But they are often less concerned with whether those charges are filed. Generally, they want to be able to get someone off the street at the time they encounter them, usually because LE is worried the person is up to no good but weed is all they have to arrest on. And I understand that. If LE believes that a person is out, say casing cars or houses to burgle, and they find some weed, they’ll make an arrest. I support that. Where weed is an appetizer for other crime, I support making that arrest even where charges might not be forthcoming. The ultimate goal for us and LE is to make the county a safe place now, today, tonight.”
Higgins reported that both the public and law enforcement have reacted positively to the shift in marijuana enforcement policies. While law enforcement appreciates the discretion to make arrests when necessary, they are generally supportive of the overall reduction in marijuana prosecutions. He also noted that the defense bar has been surprisingly supportive, despite the potential impact on their caseloads, because the approach reduces unnecessary criminal records and promotes more efficient use of legal resources.
8. How do you prioritize resources between misdemeanor marijuana cases and more serious crimes?
Higgins: “By putting what’s needed into the more serious crimes.”
Higgins emphasized the importance of prioritizing resources for serious crimes over minor marijuana offenses. This resource allocation ensures that the most significant threats to public safety are addressed first.
9. What role does the allocation of resources play in your decision to decline or divert certain cases?
Higgins: “It plays a subtle role from the outset, reminding us that we are not infinitely resourced. Otherwise we are just putting our resources where they’re most needed in the context of actual cases brought to us by law enforcement. External resources, like laboratory tests of substances, are state-funded operations, and they are stingy with them. For every case we send to test cannabis, that’s a fentanyl case we can’t test for. How would anyone with a lick of common sense decide to test the weed and not the fentanyl? Children are being killed by fentanyl, as you well know. Resources are going to be allocated to combatting serious drugs like fentanyl while I am in office.”
Higgins stressed the critical role of resource allocation in decision-making. He pointed out the limitations of state-funded laboratory tests, which prioritize more dangerous substances like fentanyl over marijuana. This prioritization reflects a strategic focus on addressing the most severe public safety threats.
10. How do you address concerns that leniency in marijuana cases might undermine the rule of law?
Higgins: “By wondering whether that could, in any way, be true. And by wondering who believes that? And far as undermining the rule of law goes, I’m a bit more concerned about peaceful transfers of power, the integrity of the federal judiciary, and federal elected officials declaring state proceedings travesties. The rule of law is preserved by DAs who respond to their communities’ needs, and undermined by elected officials who decry their own employers as tyrants or frauds, and who decry local DAs as bad actors. If law and order are perverted, it isn’t at the local level; it is at the state and federal levels. Let anyone brave enough to contradict that speak up.”
Higgins dismissed the notion that leniency in marijuana cases could undermine the rule of law, arguing that local DAs should respond to their communities’ needs and that broader threats to the rule of law exist at higher levels of government. He emphasized that preserving the rule of law involves focusing on more pressing issues, such as ensuring the integrity of the judiciary and addressing significant national concerns.
11. What steps does your office take to ensure that marijuana enforcement practices are fair and equitable across different demographic groups?
Higgins: “By not looking at demographics. We aren’t judging humans, we are evaluating conduct. To be unfair in this system, you’d have to want to be unfair. You’d have to cheat the rules. And there is plenty of history in this state and this nation of people in authority cheating and persecuting various demographics. I would hope that’s all in the past, even though I can sense its return on the horizon. Still, I hope it stays in the past.”
Higgins asserted that his office evaluates conduct rather than demographics to ensure fairness in enforcement practices. He acknowledged the historical context of discrimination but expressed hope that such practices remain in the past.
12. Do you anticipate any changes to your office’s marijuana enforcement policies in light of potential legislative changes at the state or federal level?
Higgins: “I cannot predict our legislature’s future decisions, just as no one would have predicted that the Texas legislature would legalize so many variants of cannabis. If prohibition is reprised, I hope it won’t criminalize the hundreds of families who have started businesses legally selling the variants our legislature legalized, contributing to our tax base and funding public works.”
Higgins indicated uncertainty about future legislative changes but emphasized the importance of protecting those who have legally entered the cannabis market under current laws.
13. What long-term goals do you have for your office’s approach to drug enforcement, particularly regarding marijuana?
Higgins: “One long-term goal is to avoid having people in our jail for cannabis possession. I also have the goal of avoiding creating criminal records that essentially make people unable to work or to find housing. There are other drugs in the black market which demand our fullest attention, and we will continue to prosecute those cases.”
Higgins emphasized his commitment to preventing minor marijuana offenses from resulting in jail time or long-term negative consequences for individuals. He pointed out the need to focus on more dangerous drugs that pose significant threats to the community.
14. How do you measure the success of your marijuana enforcement strategy, and what metrics are most important?
Higgins: “I measure it by how many trials, how many court settings, how much time is taken by lawyers and staff to prosecute cannabis cases. We have violent crimes which are far more important to the people of Hays County, and the lawyers and staff it takes to handle those cases are our number one priority. Possession of marijuana is not a violent crime, not a property crime, and not what the people of Hays County are worried about.”
Higgins explained that the success of his marijuana enforcement strategy is measured by the reduction in the number of trials and court settings devoted to marijuana cases. By reallocating resources to more serious crimes, he aims to better serve the priorities and safety concerns of the Hays County community.
Opinion: Promise vs. Performance
From an analytical perspective, the discrepancy between Higgins’ campaign promises and his actions in office reveals the complexities and challenges of governance. While his intentions were clear and his campaign rhetoric bold, the reality of managing a prosecutorial office necessitates a more nuanced approach.
Pragmatic Adjustments
One could argue that Higgins’ approach is a pragmatic adjustment to the realities of law enforcement. His office must contend with limited resources, public safety priorities, and the legal complexities of each case. Thus, while some low-level marijuana cases have been prosecuted, these instances are typically tied to broader criminal behavior, justifying the decision within the context of overall community safety.
Maintaining Integrity
However, maintaining integrity and public trust is crucial. Campaign promises create specific expectations, and deviations from these promises can lead to disillusionment. Higgins’ continued prosecution of some marijuana cases, even if justified, could be seen as a compromise of his campaign vow, potentially undermining the confidence of his supporters.
Conclusion
Kelly Higgins’ tenure reflects a complex balancing act between his campaign promises and the realities of law enforcement. While he has made strides in reallocating resources towards more serious crimes, the continued enforcement of some low-level marijuana cases raises questions about the fulfillment of his campaign commitments. As Higgins continues to navigate the demands of his office, the challenge remains to align his actions more closely with the expectations set during his campaign, ensuring that the trust and support of his voters are not compromised.
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