Beginning April 21, 2023, the Harris County District Attorney’s office now requires mandatory lab testing for low level fentanyl cases of less than four grams.
This policy is in place to speed up evidence processing and move cases through the system faster. Harris County is notorious for its backlog of criminal cases since Hurricane Harvey.
But this policy also creates an important evidence check prior to filing charges. Because fentanyl is mixed with other substances, lab testing can confirm whether it’s even fentanyl. And is that kind of administrative expense worth the time and hassle for the DA to prosecute?
The stakes are high. In Texas, low level fentanyl possession of up to four grams is a felony and can lead to up to 10 years in jail. These charges are alarmingly common. Every month, hundreds of new cases are brought to the district attorney from 50 different law enforcement agencies scattered across Harris County.
It has advocates asking what can be done to reduce the harm of drug use and the consequences brought by the criminal justice system.
I was already researching the impact of fentanyl charges on Harris County Criminal Courts, so it seemed like a good time to look at the data and set up a baseline for future measurement. Here’s what I learned.
Hundreds of fentanyl cases are filed every month
Every month in Harris County courts, there are hundreds of criminal cases involving low-level fentanyl possession. We know this because the Texas legislature created penalty group 1-B in September 2021 specifically for fentanyl. So it is possible to separate the fentanyl charges from other drug charges.
Under Texas law, possession of a controlled substance in group 1-B is a serious offense. Trace amounts of less than a single gram is a State Jail Felony with up to two years in jail and a fine of $10,000. More than one gram but fewer than four grams is a third degree felony that carries a maximum of ten years in prison and a fine of $10,000. Both of these charges are considered low level.
The vast majority of fentanyl cases in Harris County are low level, so this policy could have a big impact. Here’s the data:
- Since September 2021, there are approximately 542 fentanyl cases filed each month. This is about 7% of the overall criminal caseload.
- About 82% of these fentanyl cases are low level possession of less than 4 grams.
- Fentanyl cases for less than 1 gram are the third most common charge every month, behind Driving While Intoxicated and Assault of a Family Member.
- The average bail amount for low level fentanyl cases is $2,500, and approximately 22% of cases have no bail. This is consistent between Black and White defendants.
- About two thirds of defendants have a court-appointed attorney, about 16% hire an attorney, and about 6% have a public defender.
Fentanyl cases hit the suburbs particularly hard
When we look at the home address of defendants in these cases, there is a distinct trend: they live on the edge of the region. And the neighborhoods around the ship channel are hit the hardest. This map shows all of the fentanyl cases filed between September 2021 and April 2023:
Harris County has dozens of law enforcement agencies that cover different areas of the county, and each of these agencies have internal protocols for drug encounters. As the two largest departments with the most geographic area, it’s no surprise that the Houston Police Department and the Harris County Sheriff’s Office are responsible for two-thirds of the fentanyl cases.
But the map also shows areas of high volume that are typically covered by local law enforcement. For example, Pasadena Police Department, Baytown Police Department, Constable Precinct 4, and Webster Police Department, and Constable Precinct 4 logged over 200 cases each.
It takes an average of six months to process a fentanyl case
One of the reasons behind this policy is to move cases through the system faster. This is critical because over half of low level fentanyl cases are still open. Only 42% of cases since September 2021 have been disposed. There is typically an immediate disposition in some cases, where the defendant is convicted of another crime, or there wasn’t enough evidence to support a charge.
But a lot of these cases go to trial, and they linger. In April 2023, it took an average of six months to process a fentanyl case, with some cases taking almost two years. This includes the “immediate disposition” cases, as well as cases with time spent completing deferred adjudication, community supervision, or diversion programs. So milage may vary. Even still, that is a lot of time devoted to these cases.
It’s early, but the caseload is already dropping
The Harris County District Attorney said that she does not believe this policy will have a large effect on the overall caseload in Harris County. And she may be right. There are enough exceptions to the policy that could allow law enforcement agencies to continue business as usual.
But if this policy does lead to a decline in cases filed, it might not be a large decline, but it would be significant. For example, in order to reduce the criminal caseload by 1%, the policy would have to eliminate 80 cases a month, representing about a 20% decline in low level cases.
We only have preliminary data for May 2023, which is the first full month of the policy. There were only 116 low level fentanyl cases filed. This represents a 75% decline from March 2023, which is the last full month without the policy. If this trend holds, we can expect to see about a 4% reduction in the overall caseload.
