Monday, May 22, 2017

Debtors prison legislation pulls off miraculous resurrection, or, How Senfronia Thompson saved Nathan Hecht's debtors-prison bill

What an amazing turnaround on Texas debtors-prison reform legislation, SB 1913, which this afternoon first failed on a 64-77 vote, then prevailed a couple of hours later on a motion to reconsider by a whopping 100-31 margin.

The turnaround was a huge parliamentary feather in the cap of House bill sponsor Senfronia Thompson, who ironically with her victory saved the signature legislation of the session proposed by Texas Supreme Court Chief Justice Nathan Hecht and the Texas Judicial Council, at least now that the bail-reform bill is dead.

Congrats to everyone involved in the furious behind the scenes effort to whip votes, and thanks to the House members who changed theirs. Special kudos to our friends at the Texas Fair Defense Project who spearheaded the vote counting and office-by-office advocacy during the tense stretch between the bill's untimely death and its miraculous resurrection.

This legislation is essentially similar to HB 351, discussed on Grits here, with a few extra bells and whistles thrown in. Given how many good reform bills have died this session, pulling this one out of the hat was a major victory.

Sunday, May 21, 2017

Replacing 'Driver Responsibility' fee with Phillips-Miles Tariff replicates worst features of a flawed system

Let's crunch a few numbers regarding the proposed "repeal" legislation for the Driver Responsibility Program (DRP), which Grits earlier suggested is barely an improvement, if at all.

The bill adds $20 to every traffic ticket, creates a new $3,000 fine for DWI on top of existing penalties (which already include a fine of up to $2,000 on a first offense), and adds $750 to tickets for no insurance. Under the DRP, these costs were spread out over three years, but now they're criminal fines due upon conviction.

This additional levy is particularly counterproductive since, for most people, a no-insurance ticket amounts to a poverty crime. If the offender had $750 to pay, public safety would benefit more if she were required to buy insurance than to pay that much in a fine. But if they can't pay for insurance, how can they be expected to pay that big a fine? None of it makes sense.

As a practical matter, the no-insurance tariffs are essentially similar to the penalties under Obamacare for people who don't buy health insurance. Except Texas law provides no subsidies for low-income people to pay for insurance like the federal health care statute.

So, will people be able to pay these massive new levies, which all parties agree are being created for the purpose of revenue generation, not public safety or good government? Even bill proponents don't think so!

The fiscal note for HB 2068 estimates that the new fines will be applied to 82,000 DWI cases and 444,000 no-insurance cases in the first year of implementation. At $3,000 per DWI and $750 per no-insurance ticket, that generates a gross annual debt obligation of $825 million.

However, the Legislative Budget Board estimates that the "new fines and their proposed allocation would generate an estimated $266.2 million in revenue in the 2018-19 Biennium, which would be equally divided between Account No. 5111 and the General Revenue Fund." That's a two-year number. So taking $133.1 million in revenue per year and dividing by $825 million, the state is estimating only 16.1 percent of these fines will be paid!

To repeat, this legislation is being pushed with foreknowledge that most people (83.9 percent) hit with these fines cannot pay them and may end up with warrants issued for their arrest, their driver licenses revoked, etc.. That's more than 440,000 people per year statewide being knowingly condemned to a debtors-prison cycle by this legislation.

Even with such high levels of nonpayment,  the bill ultimately produces more money for trauma centers than the DRP, so arguably the hospitals will be even more reliant on debtors-prison funding than they are now.

That such an outcome could possibly be considered an improvement over the DRP only shows how absurdly flawed the program is now. The good part of this bill is that it eliminates past surcharges, so hundreds of thousands of people will get their licenses back and finally shake off manacles of debt which may be more than a decade old. That's the bill's big selling point - really its only selling point - and it's a tempting benefit. This writer has been calling for DRP repeal and amnesty for many sessions now.

But hundreds of thousands of Texans will rack up new debts almost immediately under what will be known at the "Phillips-Miles Tariff" (for the House and Senate authors of the bill). The situation would be ameliorated somewhat if the bill authors would allow amendments to add an indigence waiver, like the DRP had, and if the bill limited driver-license suspensions to two years, as proposed under HB 74.

Indeed, because the Phillips-Miles Tariff replicates the DRP's structure as new criminal fines, these suggestions are even more important. Otherwise this is quickly going to become a huge source of unnecessary, extra arrests, with all the associated police and jail time wasted on people we already know can't pay. (This expectation of widespread nonpayment is already worked into the fiscal note assumptions.)

With accommodation for indigence and a limit on the length of driver-license suspensions, one could probably make the case that HB 2068 is a marginal improvement over current law, though it's still a fatally flawed system. Without those fixes, Texas and Texas' hospitals are committing to a debtors-prison model as our best and only solution for funding trauma centers, and that's no solution at all.

Thursday, May 18, 2017

On the pitfalls of current Driver Responsibility 'repeal' legislation

Legislation to "repeal" the so-called "Driver Responsibility Program" hardly seems like much of a repeal. The "civil" surcharges are mostly shifted into criminal penalties and $20 is added to traffic tickets, all so the amount given to hospitals can INCREASE substantially.

This is the hospitals' "solution" and it's no solution at all. It just recreates the same structural flaws - with some even worse aspects - in the criminal code instead of making it a separate civil surcharge. Politically, they and legislators pushing this approach have refused to accept ameliorating amendments and have turned the bill into an enormous money grab on the backs of indigent Texas drivers.

If Texas were in a budget year with a little black ink around the edges, the better solution would be just to pay for hospitals out of general revenue, perhaps recouping a fraction of the border security money being wasted on DPS to pay for pointless extra patrol time in the Rio Grande Valley. But during a budget crunch, legislators chose to double down on the DRP's inappropriate mulcting of funds from driving infractions to pay for trauma care. That to me makes the bill only barely tolerable, on the best of days.

Some have encouraged your correspondent not to throw the baby out with the bathwater on this, but I'm on the fence - this is an awfully ugly baby. The only real benefit is that DPS has promised (though a cynic notes it's not in the bill and they've broken promises about Amnesty before) that past surcharges will be forgiven if HB 2068 passes, meaning hundreds of thousands of Texans might get their driver licenses back. But going forward, the same problems could intensify, ramping up debtors prison practices that other bills in the Legislature this year aim to limit.

If this is to be the "solution," there are two main fixes Grits sees as necessary to make this bill even barely palatable: 1) There needs to be a mandatory indigency waiver like we got installed for the Driver Responsibility Program. Without it, we're moving backward. And 2) some version of HB 74 should be amended onto the bill limiting the length of time licenses can be suspended for nonpayment to two years. Otherwise, we just replicate the problems from the old program going forward.

Emily Gerrick of the Texas Fair Defense Project has written a summation of the main problematic aspects of this bill. Here's her assessment of what's wrong with the current legislation and how to fix it:
Cure worse than the disease? 
Unfortunately, the most likely vehicle for the repeal of the DRP is looking like its solution could be worse than the disease. HB 2068 has passed out of the house and today it passed out of the Senate Transportation Committee without amendments. Most advocates and many legislators were banking on getting a number of important amendments to the bill to make it palatable, but so far none of them have gone anywhere. 
HB 2068 would repeal the DRP simply by replacing all the surcharges with increased fines – specifically, a $3,000 fine for Driving While Intoxicated, a $750 fine for driving without insurance, and an increase in the state traffic fine of $20 (on top of existing criminal penalties). Here are the things that make those fine increases potentially worse than the DRP itself: 
Unlike the DRP, HB 2068’s fines and fees will no longer have a mandatory indigency waiver 
The DRP currently has an indigency waiver program and an incentive program for low-income Texans. People who make under 125% of the poverty guidelines are able to get all of their surcharges waived, and people who make between 125% and 300% of the guidelines can get their surcharges reduced to a more affordable amount. 
HB 2068 would replace the DRP surcharges with fines and fees, but it will no longer require full or partial waiver for low-income Texans. Without a mandatory indigency waiver, many people will end up in worse positions than they are currently in.  
People will still lose their drivers licenses for failure to pay 
The DRP isn't the only program that takes away drivers licenses for failing to pay something. The Failure to Appear/Pay program under Chapter 706 of the Transportation Code also puts a hold on your license if you fail to pay fines, barring people from getting or renewing their license until the amount is paid in full. Increasing fines will result in more people with holds under this program. And, unlike the DRP, the there is no indigency waiver for these holds.  
The $750 insurance fee and the $20 increase in the state traffic fine will add up quickly  
Low-income Texans who can’t pay their fines and fees often end up with holds on their vehicle registration. Because they cannot register their vehicles, their cars become moving targets and they get pulled over more frequently. When they get pulled over they usually get multiple tickets – one for no insurance, one for no registration, and one for no valid license. With the new $750 insurance fee and the $20 increase in the state traffic fine, debt will accumulate quickly for low-income Texans.   
These increases would not need to be so high if the trauma hospitals were willing to accept the same amount of money that they now receive under the DRP. Instead, under HB 2068 the trauma hospitals would get over $30 million more than they currently receive. 
Many people who can’t afford to pay the fines will end up in jail  
Even though it is unconstitutional, many people do end up in jail due to their inability to pay fines. Without a mandatory indigency waiver, people who cannot afford to pay the new $3,000 DWI fine may have their probation revoked for failure to pay, or they may have their probation extended until they can pay. In addition, thousands of low-income Texans go to jail every year for failure to pay traffic fines. Significantly raising the state traffic fine without a waiver will result in more people being jailed just for being poor.
The judges have argued that, if we simply allow them to waive when they see fit, things will be fine. But at present, waiver of fines is exceedingly rare and defendants never know when and how to bring up that they are indigent. Statewide, less than one percent of class C misdemeanor cases are resolved by waiver each year, and only 1.3 percent are resolved through community service. By comparison, 12.5 percent of these cases are resolved through jail credit each year. So I think it is far more likely that a person will go to jail for nonpayment of, for example, the $750 insurance fine than it is that he or she will receive a waiver.
MORE: From the SA Express-News and the Texas Observer.

Saturday, May 13, 2017

A quick status update on #cjreform bills at the #txlege

Let's take a quick moment to see where are the session's significant criminal justice reform bills at the Texas Legislature after a week of important House deadlines. Few bills of any stripe have been sent to the Governor yet, but a number of good bills are still moving throughout the process and have a decent chance of passage.

For starters, both the House and Senate budgets envision closing four more TDCJ prison units, continuing a happy and fortuitous trend. Since it's not a point of conflict, one would expect this to stick in conference committee barring unforeseen shenanigans.

Bail reform (SB 1338) passed the Senate. Judges must evaluate risk assessment data on defendants before making individualized bail decisions and use the least restrictive means necessary to ensure their return to court. This news comes on the heels of a major court victory by our friends at the Texas Fair Defense Project, along with Civil Rights Corps and attorneys at Sussman-Godfrey, in which the Harris County pretrial detention/bail system for misdemeanor defendants was declared unconstitutional. So this legislation now has a lot of juice. But it's also caught up in the House-Senate feuds which have left a cloud over unrelated bills of all stripes. UPDATE: This bill died after failing to make it out of Calendars in time for the final House calendar.

There have been a few other intermediate victories. The Senate passed a version of the Sandra Bland Act without the limits on arrests for non-jailable offenses. Bland's family is upset that the new version of the bill doesn't include the reform that would have prevented her death, a concern which Grits had also raised. But there's a possibility it could be added back in on the House side, and the pieces in the rest of the bill are all good public policy reforms worthy of support. (See a press release from advocates lauding the good aspects of the bill.) There's still time to put Sandra Bland back into the Sandra Bland Act.

HB 34 enacting innocence reforms recommended by the Timothy Cole Exoneration Review Commission passed out of the House and appears to have excellent prospects. This important bill has flown under the media's radar but makes important improvements related to eyewitness identification procedures and documentation related to confidential-informant deals.

Some good legislation limiting local debtors-prison practices has passed in both chambers. SB 1913 includes an array of reform provisions we support that were recommended by the Texas Judicial Council, while HB 351 would let judges waive fines or order community service for indigent Class C misdemeanor defendants at sentencing. Right now, municipal judges and JPs must order fine regimens for indigent defendants and wait until they've defaulted and a warrant has been issued to adjust the sentence. You could think of this as the Can't Get Blood From A Stone bill, and it's a particular point of pride for your correspondent that it was first conceived in a Grits for Breakfast blog post.

Raise the Age legislation (HB 122) passed the Texas House but is hung up in the Senate, where Lt. Governor Dan Patrick has refused to refer the bill to committee. Some observers fear this may be related to the House refusing to pass his "bathroom bill," so the problems may be more about politics than policy. Go here if you want to send the Lieutenant Governor a message asking him to refer the billUPDATE: This dead bill was never referred to committee by the Lt. Governor.

An excellent school-discipline reform I'm excited about passed the House unanimously: HB 674, a bill backed by our friends at Texas Appleseed which would eliminate school suspensions for very young kids (pre-K to 2nd grade). While not formally a "criminal-justice" bill, the research shows such a strong link between early suspensions and future behavioral problems that this evidence-based shift really is about criminal-justice reform. It just shows that there are more ways to prevent crime than punishing every minor offense and locking up people who aren't a safety threat.

The House passed a tiny little bill our buddy Amanda Woog likes a lot, HB 245, that would punish police departments that fail to comply with mandatory state reporting when police officers shoot people or are shot. This is an important cleanup provision to the new reporting requirement the Lege passed in 2015, but it's a small thing in the scheme of things and departments ought to be doing this, anyway. We need a complete and accurate picture of police shooting data and departments who hide the ball should be penalized.

On the flip side: A bunch of excellent legislation died in the Calendars Committee, either never being set for a floor vote or being set so late that the House never reached them (the so-called "consolation calendar" on the final day the House could vote on House bills was 27 pages long).

HB 81 creating a civil penalty for low-level marijuana possession was set for a floor vote but the House didn't reach it. Ditto for HB 574 eliminating arrests for non-jailable offenses (though that bill would look especially nice amended onto the Sandra Bland Act when it reaches the House floor. :)

None of the major decarceration or asset-forfeiture-reform bills made it through the sausage grinder before the House deadlines hit. Prosecutors appear to have successfully quashed grand jury reform. Bipartisan police reform bills which seemed promising at the beginning of the year went nowhere. We need to develop better long-term strategies on these issues.

But nothing's truly dead at the Legislature until the session ends and the members leave town, which happens on the last day of May. So there are still possibilities for living bills to die and for dead bills to be resurrected. We'll revisit all this again in a few weeks.

Thursday, May 11, 2017

The police accountability bill that might still become law

A short-term defeat: Wednesday's record vote
As the Austin American-Statesman and others have noted, the slew of police accountability bills originally thought to have a chance have largely stalled in the sausage-making that is the Texas legislative process.

The House is on track to eek out one bill, though, which seeks to enforce a law already on the books. Thursday morning - 14 hours after HB 245 lost by one vote - lawmakers preliminarily passed the bill, which now faces a "third reading" vote on Friday.

The proposal would give notice to law enforcement agencies that fail to file the one-page reports with Attorney General Ken Paxton’s office within 30 days of a shooting, and fine them $1,000 per day if the reports aren’t filed within seven days of getting notice. The bill’s author, Rep. Eric Johnson, D-Dallas, said he believes he has the votes to pass it.

“I’m proud that my House colleagues have once again shown their commitment to this important issue,” Johnson said.

Late Wednesday, the legislation was voted down by a lethargic, chaotic body on the heels of a lengthy and tedious discussion about trucking regulations. Johnson said when it came time for his bill, lawmakers “didn’t know what the bill did or that it was agreed upon, and it just got caught up in the wash.”

Some may still oppose the bill because it fines departments – penalties owed to the Crime Victim’s Compensation Fund increase to $10,000 the day after receiving notice a second time in five years and $1,000 each day following. But Johnson was hopeful, since law enforcement and those who scrutinize law enforcement’s behavior are in favor of the legislation.

Texas Municipal Police Association Executive Director Kevin Lawrence said they were “absolutely supportive. Everybody should be required to play by the rules.”

The required reports collect demographic information about the people involved in the shooting; factual information like the address, date and time, severity of the shooting, and whether the person was armed; and a description of the original call.

An analysis of the reports has shown that in the 20 months from Sept. 2015 to May 2017, 302 individuals were shot – 141 fatally and 161 causing injuries – by Texas law enforcement. Fifty-three people who were shot were unarmed. Meanwhile, 50 law enforcement officers were shot while on-duty, 10 fatally and 40 causing injuries, based on the reports.

But the database is incomplete, as the series, Point of Impact, revealed earlier this year, and violators currently do not face punishments. 

In February, I reported that 12 fatal shootings of both officers and civilians were improperly reported. The Attorney General’s office confirmed that all 12 reports should have been filed, and they were within weeks, albeit too late to be included in the annual reports released in 2016 and 2017.

In committee, one person – San Antonio police Sgt. James Johnson – signed up in opposition but did not speak. Nor did he comment for a story.

Kevin Buckler, an associate professor of criminal justice at the University of Houston, was one of two people who testified in support of the bill at the March 14 hearing. Noting that the 2015 requirement was applauded for its push for transparency in police shootings, he called Johnson’s bill “simply the next step in progression to transparency reform.”

RELATED: From the Texas Tribune.

UPDATE: This bill passed on to the senate with a third-reading record vote of 112-21. See here for the vote tally.

Pick different target than bail reform for House-Senate retaliation

Democrat-on-Democrat political sniping is threatening important reform bills, most notably bail reform.

The Houston Chronicle is still pleading with Senate Criminal Justice Committee John Whitmire to pass Raise-the-Age (RTA) legislation, but that ship has probably sailed in the form of the senate's two-year study bill. Meanwhile, RTA author Rep. Harold Dutton has threatened to retaliate by killing Whitmire bills in the House, including Democratic threats to the senate's bipartisan bail-reform bill, SB 1338.

Dutton reasonably asked, "Why do we need [those bills] more than we need raise the age?" OTOH, Grits could make the argument that Texas needs police reform more than either HB 122 or SB 1338, but those bills are all dead. So it's not about what's most important at this stage in the legislative process, only what's possible.

Most any other senate bill Chairman Dutton wanted to make an example of would be fine by me. But Grits would consider it irresponsible act to retaliate for the death of important criminal-justice reform legislation by killing other important criminal-justice reform legislation that could keep tens of thousands of low-risk, working class defendants from being held in jail, with all the collateral consequences that can result from that. There's a ton of crossover between supporters of the RTA bill and bail reform, and real public safety implications for failing to evaluate risk in pretrial detention decisions. There has to be a better means to retaliate than that!

Sunday, May 07, 2017

Police accountability bills bottled up by House leadership, and other stories

Here are a few odds and ends that merit Grits readers attention while mine is focused elsewhere:

Tragic shooting colors legislative debates
A Balch Springs cop who shot a fleeing 15-year old with a rifle has been fired from his job and faces murder charges. See the Dallas Morning News coverage. This news spurred the black caucus in the Texas Legislature to issue a stern complaint that none of the important police accountability legislation proposed this session has received a vote on the House floor. Their frustration surely contributed in part to the death of HB 2050, which expanded secrecy provisions related to police misconduct cases.

Sandra Bland Act gutted in senate
The Senate Criminal Justice Committee this week passed out a radically stripped down version of the Sandra Bland Act, but quite frankly it's hard to get too excited about the minimalist items left in the bill. Wrote the Texas Tribune's Jonathan Silver:
Whitmire's version most notably removes language that would ban arresting people for offenses that generally only have fines as a punishment. Earlier versions of the bill also tried to make it easier for nonviolent people in jail to receive personal bonds. Whitmire said fine-only offenses would be addressed in a separate bill, as the Sandra Bland Act is "primarily a mental health, accountability" bill.
The problem with that bit of reportage is that the "separate bill" was SB 271, which had earlier that day appeared on the same agenda with the Sandra Bland Act. But Chairman Whitmire pulled that bill off the agenda hours before the hearing, much to the consternation of the bill author and supporters who believed they had sufficient bipartisan support to pass it out of committee. So Whitmire was pledging to address a problem in a bill which he had already killed just hours before. SB 271's companion, HB 574, is in the Calendars Committee and has yet to be posted for a floor vote. Unless leadership adds the bill to a Major State calendar, it's probably too late for it to be heard.

Remembering (the real) Sandra Bland
Meanwhile, as Grits has pointed out before, it's a bit anomalous to pass a "mental health accountability" bill in response to the Sandra Bland story because she was not, in fact, mentally ill.

Pensions and bill killing
Governing magazine has a nice feature on Houston billionaire John Arnold's efforts to reform public-employee pension plans. Meanwhile, the House debate over Houston pensions ramps up Monday, and every minute it goes on, legislation on the other side of that bill on the calendar dies. The lower chamber, which yesterday ended their workday at 3 p.m., has mapped out a leisurely, care-free stroll toward the Thursday deadline for the House to consider House Bills, not the frenzied pace of work one would expect as hundreds of bills approach a very final deadline. At this point, the House doesn't seem to have much appetite for passing any more legislation and everybody just seems to want it to be over.

Who can settle Harris County bail litigation?
A newly elected Democratic District Judge in Houston has asked the commissioners court whether he can settle with plaintiffs in civil rights litigation against the county's money-based bail system. The commissioners courrt replied that they don't control whether or not he settles, but his lawyer was appointed from the county attorney's office and told the judge she could not settle without permission from higher ups. It's an interesting question: If individual judges start to settle, how long can the county's oppositional approach remain viable?

Of trees, ropes, race, judges and capital punishment
A decidedly un-woke judge faces retraining for lynching suggestion.

Coda to Willingham saga: Did prosecutor commit misconduct?
Jordan Smith at the Intercept has a story from a trial in Corsicana to determine whether the prosecutor in the Todd Willingham case engaged in misconduct when he concealed a deal with a jailhouse snitch who testified against the defendant.

Friday, May 05, 2017

Bill to close police misconduct records deserves an undignified death

UPDATE: There was a substantive floor debate on this bill led by members of the black caucus and it was delayed until Saturday at 1 p.m., when an amendment scaling it back radically is expected to be proposed. NUTHER UPDATE: This bill is dead. The author postponed the bill until session is over, offering a comment that this was a bigger piece of legislation than he'd originally understood. Good for Senfronia Thompson and Co. for opposing the bill, and kudos to Greg Bonnen for pulling it down once he realized its true scope and purpose.

Original post:
Grits is unsure how HB 2050 (G. Bonnen) passed through committee without making it onto reformers' radar screens, but it's on the House calendar today and is generally a terrible idea. Basically, it says that when records of police misconduct are shared with the Texas Commission on Law Enforcement - the state peace officer licensing agency - that they become closed records in the files of the agency that submitted them.

This is an unremittingly awful idea that should have been vetted in committee - nobody opposed it there and it sailed through on a unanimous vote. But perhaps that's because, to understand why this bill is a bad idea, one must understand the structure of Texas open records law as it relates to police misconduct.

Two different statutes govern Texas police misconduct records. In more than 2,500 law enforcement agencies, most records in an officer's disciplinary file are public. In about 70 departments which have adopted the state civil service code, however, those records are secret under Ch. 143.089(g) of the Local Government Code.

Most of those jurisdictions opted into the civil service code in the 1940s and '50s, but the misconduct records were made secret by the Legislature in 1989. In other words, voters, in nearly all cases, did not elect to close those records - the Legislature closed them at the behest of the police unions after the fact.

So for the 70 or so civil service cities, these records are already secret. But for all but one county sheriff and the overwhelming number of other law enforcement agencies in Texas of all stripes, the statute would close records about police misconduct that are presently open and have been for almost 50 years.

In related news, the black legislative caucus held a press conference yesterday to complain that none of the important police accountability bills filed this session have moved. The Statesman's coverage opened:
Revealing a race-related schism at the Legislature on police reform, members of the Texas Legislative Black Caucus on Thursday called for legislative action in the wake of the police killing of Jordan Edwards in North Texas. 
Jordan, an unarmed, 15-year-old, African-American, was killed Saturday by a white Balch Springs police officer as Jordan was riding in a vehicle leaving a party. 
“There’s not a person here who thinks this would have happened in an Anglo community,” said Sen. Royce West, D-Dallas. “I’m not playing the race card; I’m playing the reality card.” 
Among the measures proposed by the African-American lawmakers that they say have largely been ignored by Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Joe Straus, R-San Antonio, none of which have made it to the floor of the Senate or House for a vote are: 
  • Reforming the way police arrest and send people to county jails, as part of a suite of changes inspired by the arrest of Sandra Bland, the African-American woman who was found hanged in a Waller County Jail cell three days after a routine traffic stop escalated into a confrontation with a Department of Public Safety trooper and led to her arrest.
So the House doesn't want to pass bills to hold officers accountable but may pass a bill today to shield their misconduct from the taxpayers who pay officers' salaries. What else could you read into this legislative fact pattern?

Wednesday, May 03, 2017

Radio spots promote marijuana reform

Check out Dallas Morning News coverage of radio spots being run by Just Liberty on conservative talk radio around the state to support civil penalties for low-level marijuana possession. The spots are based on this original tune, written by your correspondent and illustrated by the wonderful and talented Sukyi McMahon, supporting HB 81 (Moody):


Prison closures = Good (regardless of immigration policy)

Both the Texas House and Senate budget plans would close four additional prison units. Remarkably, the idea is hardly controversial, anymore. The only negging Grits has seen on the units' deletion from the budget comes from liberals fearful that they may be transformed into immigration detention facilities.

To be clear, these are separate questions and conflating them risks allowing the perfect to become the enemy of the good. Texas should continue down the path of decarceration and prison closures - these will bring the total to eight closed units in the past few years - and battles over federal immigration policy mustn't be allowed to interfere with that project.

There will be a LOT of competition for immigration detention beds. It's possible shuttered TDCJ units could end up doing federal immigrant detention, but many other empty jail facilities owned by counties will be competing for those beds, too. They can't all get contracts.

Saturday, April 29, 2017

Harris County hearing officers Pants-on-Fire testimony in bail litigation lacked credibility, finds federal judge

Amazing news! Congrats to Civil Rights Corps and the Texas Fair Defense Project, who secured a remarkable 193-page injunction against Harris County from federal District Judge Lee Rosenthal declaring that the local bail system unconstitutionally deprives poor misdemeanor defendants of their freedom because of their inability to pay. See the Houston Chronicle's coverage. Grits uploaded her ruling here.

Judge Rosenthal heard testimony from the Hearing Officers setting bail amounts on the front lines and poignantly found them non-credible:  "The Hearing Officers' testimony that they do not 'know' whether imposing secured money bail will have the effect of detention in any given case ... and their testimony that they do not intend that secured money bail have that effect, is not credible." In fact, she attributed "little to no credibility in the Hearing Officers' claims of careful case-by-case consideration." In the hearings she watched, they "treat the bail schedule, if not binding, then as a nearly irrebuttable presumption in favor of applying secured money bail at the prescheduled amount."

If Judge Rosenthal were Politfact columnist, she'd be giving the Hearing Officers a "Pants on Fire" rating. To the extent that appellate courts must rely on her credibility assessments, and on many topics, they must, those lines may well preclude quite a few appellate paths for the defendants.

Her critique extended beyond the Hearing Officers, though to elected judges acting as "policymakers" overseeing Harris' County pretrial-detention mill, whom she found to be willfully and conveniently ignorant about the human impact of they system they're running:
policymakers are apparently unaware of important facts about the bail-bond system in Harris County, yet they have devised and implemented bail practices and customs, having the force of policy, with no inquiry into whether the bail policy is a reasonable way to achieve the goals of assuring appearance at trial or law-abiding behavior before trial. In addition to the absence of any information about the relative performance of secured and unsecured conditions of release to achieve these goals, the policymakers have testified under oath that their policy would not change despite evidence showing that release on unsecured personal bonds or with no financial conditions is no less effective than release on secured money bail at achieving the goals of appearance at trial or avoidance of new criminal activity during pretrial release.
That's exactly right - they're not going to change unless somebody makes them, and Judge Rosenthal clearly has decided she's that somebody.

Grits has been singing this song for years and am glad to have such a powerful voice join the chorus. Indeed, while Judge Rosenthal must give judicial "policymakers" the benefit of the doubt and conclude they are "apparently unaware" of these things - because that's what they testified - Grits doesn't believe it for a second, having engaged in frank conversations with more than a few of those policymakers over the years. They knew. They just didn't care. But a 193-page ruling for plaintiffs by a federal judge has a way of making policymakers care about issues that weren't priorities for them before. The injunction flat-out forbids Harris County detaining misdemeanor defendants solely because they can't pay, and asserts the the federal court will craft the new system so that it passes constitutional muster.

Meanwhile Texas' bail reform legislation - SB 1338 by Whitmire - is on the intent calendar and eligible for a vote in the senate this week. In light of Judge Rosenthal's ruling - what seemed before like a bold step now almost seems timid. But all these concurrent trends are at least headed in the right direction.

MORE: From the Houston Press.

Thursday, April 27, 2017

Following the Money - and the Legislation - on Bail

The Senate Criminal Justice Committee voted in favor of bail reform this on SB 1338 by a 7-0 vote.  A vote in the House Criminal Jurisprudence Committee is still pending on the companion bill, HB 3011.

The bondsmen are concerned about the future of their businesses.  As they testified at both the Senate and House hearings, their “bread and butter” comes from charging money to misdemeanants.  They understand that granting pretrial release to low-risk, non-violent individuals who are charged with misdemeanors means that they can no longer collect all the money that has supported their businesses.  From a public policy perspective, however, if people are low-risk in terms of appearing for court and non-violent, then the courts are not justified in extracting these payments.  As the industry reps testified, there are so few felons who can afford the bail amounts set.  They need the low-level people to pay money in order to keep their doors open.  Bail bondsmen and women are generally decent, small-business people, and this comes through at the hearings.

The big money in this industry is made by the out-of-state corporations that fund the Texas bail bond lobbying group, BailPAC.  Not surprisingly, the industry is ramping up the scary propaganda.   BailPAC has long provided hefty campaign contributions to certain legislators.

Think “State Farm”:  the bail bond shops we see near courthouses in every county are the mom-and-pop shops that sell a product for the big out-of-state corporations.  And this is the most lucrative type of insurance product sold.  Over the years the industry has lobbied successfully for favorable legislation.  Today, even when people don’t show for court, the law provides for generous grace periods and exceptions so that the insurance companies almost never have to pay the counties for the bond amounts that we would expect to be forfeited.

Most of the time, people who fail to appear for court  eventually show up later on their own or when they encounter a police officer who learns that there is an outstanding warrant for their failure to appear. In various ways, as long as a person at some point returns to court--by whatever means--the bail bond insurance company will not have to pay.  Bounty hunters are almost never used.

And even when the insurance companies are ordered to pay, only a percentage of those bond revocation judgments are actually paid, as shown in investigations by the Houston Chronicle ($26 million owed in 2010) and Dallas Morning News ($35 million owed in 2011).  In Waco, the DA in 2011 adopted a policy allowing bondsmen to pay just a portion of bond revocations.

The corporations that reap the rewards of Texas’ current bail laws are:
Meanwhile, Texas’ poorest and sickest people—not to mention county taxpayers—pay the price for a system that punishes people who can't afford bail money.  The pending legislation would modernize Texas bail laws to make release decisions based on the actual risks rather than a system that releases people based on ability to pay.

TDCJ statistical report published months early

Last year, Grits lodged a complaint that the Texas Department of Criminal Justice Annual Statistical Report needn't take a full year to produce after each fiscal year ends.

To their credit, TDCJ responded by bumping up the release date of the report by many months. 2016 data is online now, whereas in years past the report inexplicably hasn't come out until August.

Thanks to TDCJ chief Brian Collier and his staff for moving up the timeline.

Tuesday, April 25, 2017

Lies, police shootings, and the disinfecting sunlight of dashcam video

While everything is fluid at the capitol, here are a few items from outside the pink dome that merit Grits readers' attention:

Twin Peaks fiasco dragging on endlessly, expensively
Two years after the Twin Peaks biker shootout in Waco, there are "no trials in sight," reported the Waco Tribune Herald. Grits hopes we've seen the last of state-government bailouts in the form of Governor's grants to McLennan County covering costs in this case. The rest of the state shouldn't have to pay for the McLennan District Attorney's bravado and buffoonery. The reason for the outlandish cost is primarily the decision by DA Abel Reyna to charge dozens of people just for being there even though most people who've seen the discovery agree that the actual shooters were all killed by police snipers. Federal litigation has already ensued. Most of these cases should have been dismissed long ago. Let folks in Waco pay for it.

In favor of innocence reforms
Attorney Charles Eskridge had a nice letter to the editor in the Houston Chronicle articulating support for innocence reforms in HB 34 by Smithee, which arose from the Timothy Cole Exoneration Review Commission.

Parole revocations not Texas' big problem (probation is)
Grits wasn't surprised to learn from the Marshall Project that Texas doesn't rank high on the list of states that revoke parolees for technical violations. After the 2007 decarceration reforms authored by Sen. John Whitmire and Rep. Jerry Madden, parole revocations for technicals plummeted. It was probation departments, where revocation decisions are made by local elected judges, where revocations for technical violations have remained stubbornly high.

Lies, damn lies, and (not always) secret video
Here's another case, this time out of Bell County, where an unarmed man was shot and law enforcement lied about what happened. Last August, "Bell County Sheriff Eddy Lange told media representatives gathered at the scene that [Cpl. Shane] Geers shot [Lyle P.] Blanchard during a “gunbattle.” But dashcam video showed Mr. Blanchard was unarmed, 40 yards away. This is another prime example why police records including video should be subject to the Public Information Act even in cases where a conviction was never obtained. Those are exactly the instances - like this one, where the subject of the video is dead - where there's the greatest public interest in that information being made public.

Questioning the rise in frequency at which 'unarmed men allegedly reach for empty waistbands when facing armed officers'
An incident in Houston was the subject of a dissent by Supreme Court Justice Sonia Sotomayor decrying the court's one-sided jurisprudence when it comes to police shootings. See coverage from the Houston Press. The ABA Journal reported:
Sotomayor lobbed her complaint in a dissent from a cert denial (PDF) in an excessive force case. The dissent, joined by Justice Ruth Bader Ginsburg, included a footnote that read, “Some commentators have observed the increasing frequency of incidents in which unarmed men allegedly reach for empty waistbands when facing armed officers.” 
Sotomayor argued that the court should have accepted a case that involved Ricardo Salazar-Limon, who was shot in the back by a Houston police officer as he walked back to his car. The officer said he shot Salazar-Limon in October 2010 because the suspect ignored his order to stop, turned toward the officer, and raised his hands toward his waistband. Salazar-Limon had said he was trying to walk away from a confrontation. 
The shooting happened after Salazar-Limon was pulled over for suspected drunken driving and then resisted being handcuffed. Salazar-Limon sustained “crippling injuries” as a result of the shooting, according to Sotomayor. 
Because there were competing accounts of the incident, the case should not have been decided by summary judgment, Sotomayor said. 
The cert denial, Sotomayor wrote, “continues a disturbing trend regarding the use of this court’s resources. We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force. … But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.”

Friday, April 21, 2017

Killing suspect shouldn't justify secrecy about police actions

At the Statesman, Eric Dexheimer has a story on a young man repeatedly tazed by police while he was high on LSD - including a sustained zap to the crotch, at one point in the video - but because the boy died and so was never convicted of anything, the family couldn't access any information about the case under the Public Information Act.

Dexheimer offered this little-recalled history of how these records - which would have been open a quarter century ago in Texas - became closed:
At one time, most police records in Texas were considered open to public inspection. Between the writing of the state’s open records act, in 1973, and the mid-1990s, the attorney general issued a string of opinions concluding that, except for an ongoing prosecution in which releasing details might compromise a case, most law enforcement documents were considered public. 
In 1994, however, the Harris County district attorney’s office sued the state to keep private its closed investigative files. In 1996 the Texas Supreme Court agreed with the prosecutors. 
With the status of the law murky, in 1997 Texas lawmakers wrote a new statute. It specifically excluded from public view “information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication.” One stated reason was citizen privacy. 
“If there is an investigation about potential criminal wrong-doing and the decision is made that no charges will be filed, the person has some privacy right not to be characterized as a person under investigation,” explained James Hemphill, an Austin lawyer with the firm of Graves Dougherty who represents the American-Statesman on media law and open-records issues. 
Another reason was simply “to try to withhold as many records as possible,” said Joe Larsen, a Houston open records attorney. Added Laura Prather, an Austin attorney who specializes in First Amendment protections: “Law enforcement has a very powerful lobby.” 
Since then, the clause has been used to summarily deny police and prosecution closed-case records from reporters and attorneys. Yet it has also thwarted families such as the Dyers seeking information and, occasionally, legal recourse. 
In March Rep. Joe Moody, D-El Paso, filed a bill to compel release of police records if, like Graham, the suspect had died; or, even if not, gave his consent to their release. “The intent of the law was to not interfere with a pending investigation,” said Prather, who promoted the measure for the Freedom of Information Foundation of Texas. “It doesn’t apply if the suspect is dead.. 
Moody, a former prosecutor, said he was persuaded to change the law simply because government records should be considered open to public scrutiny unless there is a compelling reason to withhold them. With police reports of deceased subjects, “I don’t see the interest it serves by withholding that,” he said.
Grits has written about these issues many times. In 1996-97, Texas went from having one of the very best open records laws regarding law enforcement to one of the worst.

Moody's legislation is a good start, but at some point the Lege needs to revisit these broader open records issues surrounding law enforcement. Cases where there is no conviction are exactly the ones where you most need open records - cases may be dismissed or never filed because of misconduct or error, for example, that can never be discovered while the records are secret.

A big reason why the law passed in 1997 was so bad is that, at the time, there was quite literally no active criminal justice reform movement in Texas aimed at the state legislative process and there were no interests at the table to counter law enforcement's desire for maximal secrecy. Indeed, the reason Grits first began making the trek to the capitol was my horror that that bill had passed with no substantive opposition.  That would not be the case today, so perhaps it'd be a good time to revisit these important questions now that the citizenry is more engaged on these topics.

Poll: GOP primary voters support raise-the-age, decarceration bills

Republican pollster Mike Baselice has released a memo with opinion poll results on several important criminal justice topics (poll here, coverage here), focusing especially on the views of Republican primary voters. For example, a whopping 86 percent of GOP primary voters reacted positively to this position on "raise the age" legislation approved on second reading yesterday by the Texas House:
Currently, 17-year-olds in Texas who are convicted of a crime are automatically placed in the adult justice system. Texas is one of only seven states to do this, even though 95% of 17 year-olds are arrested for nonviolent offenses. Hearing this, do you favor or oppose starting 17-year-olds in the juvenile justice system while giving a judge the discretion to move them to an adult system on a case-by-case basis?
On drug penalties, wrote Baselice, "Large majorities of respondents from the all voter (82%) and Republican primary voter (75%) samples favor making possession of a small amount of drugs among nonviolent people a misdemeanor instead of a felony."

See the complete polling memo for more details.

Tuesday, April 18, 2017

Declining juvie crime, post-'07 reforms, make raise-the-age bill practical, feasible

(UPDATE-4/20: The Texas House approved HB 122 by an 83-53 vote on second reading. MORE: And on to the senate with 92 votes on third reading.)

It's that time of the year at the Texas Legislature where everything moves so fast and the politics are so fluid that horse race coverage (what will or won't pass) is basically meaningless. Now is the time for observation and debate on these topics, not speculation and prediction. At this point, soothsaying is beyond the ken of even grizzled professionals when it comes to legislative outcomes. For the most part, for bills moving through the process, nobody really knows what will happen, or can know.

Indeed this time of the legislative session is less like a horse race and more like a rodeo - a danger-filled spectacle ruled by clowns. And as our friends in the rodeo like to say, there's never been a horse that can't be rode, never been a cowboy can't be throwed.

So, when one sees articles like this one from the Texas Tribune's Jonathan Silver depicting the demise of Raise the Age legislation in the senate before it's even had a vote in the House, one may take it with a grain of salt. This sort of coverage too often substitutes for actual reporting on the subject matter being debated and allows politicians to make everything about themselves instead of the issues underlying important legislation.

And to be clear, HB 122, the raise-the-age bill, is important legislation. Most parents of 17-year olds don't yet consider them adults, even if their government does. Texas is one of only six states which still treat 17 year olds as adults for purposes of prosecuting them (though not for purposes of buying cigarettes or alcohol, for example).

Through this debate, we're learning a lot more about the types and scope of juvenile crime. Texas Appleseed recently published a report analyzing arrests by age category to discover the impact of HB 122. They found that arrests of 17-year olds declined every year since 2012, and 87 percent of crimes committed by this cohort were nonviolent offenses - mainly marijuana possession and theft.

Of 17 year olds convicted of drug crimes, only 1.2 percent were for dealing - nearly all of them marijuana. In general, "The rates at which they are arrested along with the offenses for which they are booked resemble the rates and offenses for 16-year-olds; yet their different treatment leads to very different outcomes."

Arrest rates for 17 year olds overall are declining, said the report, from 70 arrests per 1,000 in 2013 to 58 per 1,000 in 2015. Texas arrested more than double the number of 17 year olds in 2008 compared to 2015.

Texas juvenile probation directors are split on the question of raising the age, with Harris County's opposing the bill but others, including in Dallas, more supportive. Nationally, most juvenile-justice professionals consider the lower age inappropriate and lamentable.

Appleseed made an argument which your correspondent has separately made in conversations about the bill: That juvenile reforms since 2007, along with declining juvenile crime, have quite capably set the stage for this reform:
In 2007, the Texas Legislature began a process of restructuring the juvenile justice system, passing the first of several bills and budget initiatives that would move youth out of ineffective and expensive state secure facilities and into community-based alternatives. The process resulted in a 61 percent decrease in juvenile arrests between 2007 & 2015. At the same time, funding was shifted away from state secure facilities and into juvenile probation. A 2015 report published by the Council of State Governments (CSG) showed that per capita funding for juvenile probation departments increased 68 percent between FY 2005 & FY 2012. 
The same CSG report concluded that while the news was generally good for Texas reforms – with youth rehabilitated locally showing better outcomes than those committed to state secure facilities – there was room for improvement in recidivism rates by targeting resources and services on youth most likely to reoffend. Specifically, CSG found that the counties the researchers studied failed to “effectively target…[juvenile probation] supervision resources and services on those youth most likely to reoffend.” Instead, counties continued to place youth at low risk of reoffending in services and programs that they didn’t need – likely contributing to higher re-offense rates. 
Taken together, the large reduction in arrests, increase in funding for juvenile probation, and findings from CSG showing more opportunity to effectively utilize state taxpayer dollars indicates that Texas’ juvenile system is well-poised to absorb 17-year-olds.
That pretty much coincides with my view. In 2007, Grits might have agreed that the state was ill-prepared to make this shift. Today, after a decade of juvie decarceration coupled with double digit declines in juvenile crime, the system seems much more capable of handling an influx of 17 year olds. That's especially true if counties can more “effectively target…supervision resources and services on those youth most likely to reoffend,” which they ought to be doing already, anyway.

Texans can go here to send their state legislators an email supporting HB 122. Get it done before Thursday, when legislators take a vote. Or else go here to find your state representative's office phone number and call them before Thursday to ask that they support the bill.

Thursday, April 13, 2017

17-year olds' crimes more like juveniles', and other stories

Here are a few odds and end that merit Grits' readers' attention this morning.

Sparing no expense
If Harris County were as willing to spend the taxpayers' money on indigent defense and programs to divert people from jail as they are to pay $550-per-hour lawyers to fight bail reform, it's likely the civil rights litigation over the county's bail system that's going on there right now would never have been necessary. Bail reform legislation was heard in the senate last week and is scheduled to be heard in committee on the House side on Monday.

'One of the most despised programs in state government'
The Driver Responsibility Program is "one of the most despised programs in state government" but remains difficult to abolish. However, the senate seems prepared to go a lot further down that path, and with more serious intent, than the Lege has previously been willing to do. This would be easier if we weren't in the middle of a budget year flooded with red ink.

Raise-the-age proposal coincides with plummeting juvie crime
Seventeen year olds commit crimes which are more like juvenile cohorts than young adults, according to a new study released this week. And juvenile crime has been going down. Reported Brandi Grissom: "According to the study, arrests of 17-year-olds have been dropping since 2008, falling by 17 percent from 2013 to 2015. The drop-off in arrests for 16-year-olds has been even steeper, falling by 26 percent during the same period." UPDATE: Excellent news: Texas' raise-the-age legislation, HB 122 (Dutton), has been set for a House floor vote on Thursday, April 20.

Dallas approves citations instead of arrests for pot
The Dallas city council on a 10-5 vote implemented a cite-and-release policy for low-level marijuana arrests. The proposal left out small portions of north Dallas not in Dallas County, which was the cause of at least one council member's opposition. Go here to send an email to your state representative asking them to pass HB 81 punishing user-level marijuana possession with a civil penalty.

Bright side to a crime-scene investigation snafu
Shoddy work by a crime-scene investigator in Houston could put dozens of open cases in jeopardy, and maybe some closed ones. Ugh. On the bright side, a decade or two ago such revelations probably wouldn't be met with a public mea culpa and systematic notification of the defense, much less a dedicated division within the DA's office to search for wrongful convictions. Humans are flawed and problems will happen. What's slowly changing are that systems and mechanisms for responding more responsibly are beginning to take root.

Former prosecutor, alleged sexual harassment victim, died of an overdose
A former Tarrant County prosecutor who received a $375,000 settlement from the county after accusing then-DA Joe Shannon in a sexual harassment suit has died of an overdose after mixing prescription drugs, the Star-Telegram reported. What a tragic end. It took a lot of guts to stand up to her boss/the sitting DA like that.