Representatives of five local non-profit groups faced 69th District Attorney David Green in the third-floor district courtroom of the Moore County Courthouse Friday. Unlike most people who find themselves in that situation, they were not there to pick a jury or go on trial. This was a much friendlier encounter. Green had asked the representatives to come to the courthouse to receive donations totaling $33,000 on behalf of their organizations. They did not have to be escorted to the courthouse by law enforcement.
The money comes from a fund generated by a program Green established in the 69th District approximately six years ago to help relieve court congestion and to give non-violent defendants charged with low-level marijuana crimes a chance to avoid a permanent criminal record. In the years the program has been operating, Green says he has been able to disburse over $750,000 to non-profit organizations throughout the 69th Judicial District of Moore, Hartley, Dallam, and Sherman Counties.
The Pre-Trial Diversion Program in the 69th District is open only to people charged with low-level marijuana and THC crimes. Those charged with possessing or trafficking hard drugs such as heroin or cocaine are not eligible. "To qualify, the person must have no arrest record for a jail-able offense. They go into it (the program) for two years," said Green. "It is just like regular probation. The case does not go to court. It is an agreement the defendant makes with the DA's office to obey these rules (a five page agreement), and at the end of two years, they can file a motion to have their record expunged … as if they were never arrested for it or committed the offense."
The terms of the agreement are not easy. Among other things, the defendant must agree not to commit any other crime and to forgo marijuana, THC (edible marijuana products), any other illegal drugs, alcohol, and other intoxicants. Random drug tests, paid for by the defendant, insure compliance. The defendant must agree to avoid others of "disreputable character" or who have committed crimes. The defendant must report in person every three months and in writing every month, and he or she must complete 100 hours of community service. Until the end of the two years, the defendant remains on the hook legally. If he or she breaks the rules or withdraws from the agreement, prosecution resumes as before.
Green also requires defendants to pay the 69th District $100 per month for the cost of the program and to make a donation of between $2500 and $3500 to the fund from which he disburses money to local non-profit and school organizations. Green says the donations are the equivalent of a fine that the defendant would be assessed if convicted in a regular court proceeding. "I have had attorneys claim that their clients couldn't afford it. I tell them, 'You know, if you get an extra job delivering pizzas a couple of nights a week, you could save that money up in two or three months.' I have actually been told that some people have done that." He says very few people have claimed to be unable to afford the donation. People have an incentive to successfully complete the program. "They are going to get their record wiped completely clean," said Green. Of the 213 participants on record between September 1, 2016 and September 1, 2019, only 14 violated the program and had to be prosecuted.
Most of the defendants in the program are not local. In fact, Green says, he knows of only two or three from the district participating now. The vast majority are from down-state cities such as Dallas and Houston. Many are from out of state. According to Green, it was the legalization of marijuana in Colorado that led to the big increase in marijuana cases in the district that became the impetus for the creation of the program. "When they made marijuana legal and THC legal for recreational use, it has been 'Katie-bar-the-door'. We have had a bunch of them."
Though Green did not invent the concept of pre-trial diversion, he was the one who first introduced it to this area. Since then, Moore County Attorney Scott Higginbotham has introduced a similar program for defendants in county court.
"Overall it has worked really well," said Green of the program he began. "The defendants like it; it gives them a way to earn their way to a clean record. It really benefits the community; these organizations have really been able to do a lot of good," he said.