Podcast: Creuzot critiques, pot possibilities, Twin Peaks prosecutions peter out, and other stories that may or may not alliterate

Check out the April 2019 episode of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal-justice politics and policy. This month, we spent a lean half hour discussing law enforcement attacks on Dallas DA John Creuzot, prospects for Texas marijuana penalty reduction bills, whether the Twin Peaks biker massacre was the biggest prosecutorial screwup in Texas history, and other important Texas-justice topics. As always, you can subscribe to the podcast on iTunes, Google Play, or Soundcloud, or listen to it here:


Here's what Mandy and I discussed this month:

Top Stories:

• Tuff-on-crime backlash against Dallas DA John Creuzot
• Marijuana penalty reduction bills at the Texas Legislature

Fill in the Blank:

• Twin Peaks indictments all dismissed
• Texas cops are arresting tens of thousands for traffic offenses
• How will #cjreform advocates remember the 86th TX Legislature?

The Last Hurrah

• $12k bail for $1 theft in Austin
• Travis County DA will reject "trace" drug cases
• Harris County DA is bleeding staff

As always, I've ordered a transcript and will add it below the jump when it comes back. Hope you enjoy it.

Time to move NOW on Driver Responsibility surcharge abolition

The Texas Legislature has its best-ever chance to abolish the Driver Responsibility surcharge before it in HB 2048 (Zerwas). All the major interests have signed off. Early in the session, leadership appeared prepared to (finally) move on the issue, and the bill was voted out of committee in early April.

But the legislation remains stuck in the House Calendars Committee and has yet to be considered, much less set for a vote, on the House floor. Although, officially, the last House calendar is May 7, bills must be placed on a calendar several days before - probably by the 1st or the 2nd - to be heard before the deadline for the House to consider House bills.

Every legislator knows about problems with the Driver Responsibility surcharge because they all get constituent calls from people whose lives have been ruined by this ill-conceived government boondoggle. Nobody likes the program who's not receiving money from it. But those special interests were so powerful, the money had to be found for the program to go away.

HB 2048 solves that problem through several sources. It increases fees on traffic offenses by $20 and adds a $2 fee to auto insurance policies.

That latter is apparently the hold up: Insurance industry lobbyists are fighting the $2 fee. But legislators should ignore them. The problem with the Driver Responsibility program is precisely that it relied upon a small number of mostly impoverished people - folks caught driving with suspended licenses or without insurance - to pay for trauma-hospital care. But that's the sort of classic public good whose cost should be spread among everyone. After all, anyone may eventually wind up in a trauma hospital.

A few other, disparate critics object to the new, stiff criminal fines for DWI, which replicate high DWI surcharges under the Driver Responsibility program, re-labeling them a criminal fines instead of civil penalties. And to be clear, Grits isn't a fan of that part of the bill. We know 44% of drivers can't pay fines at that level (because that's how many DWI offenders didn't pay the identical surcharges), so there's a real sense in which they're setting people up to fail.

The flip side is, under the status quo, DWI offenders still owe the same amount, just as civil surcharges instead of criminal fines. The difference is, judges can waive criminal fines but cannot waive surcharges. So there's more prospect for relief under HB 2048 than those drivers would have otherwise.

To recap: There are 1.5 million people with licenses suspended because of the Driver Responsibility surcharge. Those surcharges will be voided and those folks can get their licenses back.

Moreover, while the DWI folks still get large fines, they only made up 12 percent of people with surcharges. So 88 percent of people who would have previously gotten a surcharge will avoid them going forward.

Helping 1.5 million people at a whack, plus eliminating 88 percent of the problem going forward, makes this a Very Good Bill. The DWI fines are an unfortunate compromise, but even for those folks, they're better off if judges can waive those fines.

Since this terrible statute first passed back in 2003, there has never been a better opportunity to eliminate this program than right now. Grits hopes the House Calendars Committee will set this legislation on the Major State calendar at the earliest possibility and leadership strongly supports it. Every day they dawdle risks Texas wasting two more years before this longstanding problem is addressed.

UPDATE: Hurray!! This bill was added to a House floor calendar for Monday, April 29, meaning it still has plenty of time to pass. Thank you, Calendars Committee!

Class-C arrests by Austin PD plummet after policy restrictions implemented

As bills are considered at the Texas Legislature to restrict Class-C misdemeanor arrests, Austin PD revealed that new policies limiting such warrantless detentions have radically reduced their number. "In the first three months of the year," the Statesman reported, there was a 57% decline over 2018 arrest numbers."

The new changes eliminated the majority of allowable reasons officers could make an arrest for Class-C misdemeanor violations, for which the maximum punishment is only a fine, not jail time. From the Statesman:

“If an officer came across an individual that was committing a violation that was eligible for cite and release, we used to have a long list,” Manley said. “I believe it was 11 disqualifiers, or reasons that the officer could state for making the arrest otherwise.” Police now have only four criteria that could be used to make the arrest versus issuing the citation, he said. 

Officers are still allowed a bit of nuance in their decisions on making arrests. Before police can cut a person loose with a citation:

• The officer must be satisfied that the person has fully identified themselves.

• The officer has to believe that the safety of the person or property would not be endangered.

• The person must not ask to be immediately taken before a magistrate judge, which is allowed under state law, Manley said.

• The offense also must not involve exposure with sexual intent, for which police will always make an arrest.

Offenders suspected of driving with an invalid license won’t be released if they were involved a serious crash and deemed to be at fault, or if their license was suspended or invalid because of a drunken driving offense.

Maybe the most controversial reason that no longer justifies arrests in Austin: an officer's desire to search a vehicle to investigate potential crimes beyond the traffic offense for which a driver was pulled over. Austin PD policy no longer condones Class C arrests as an investigative tool on the roadside.

We know a lot more now about these arrests for petty offenses than we did in the aftermath of Sandra Bland's death nearly four years ago, much less 20 years ago when Gail Atwater was pulled over in Lago Vista, presaging a legal battle that took the issue of Class-C arrests all the way to the US Supreme Court, where she lost 5-4.

The SCOTUS majority in Atwater's case consoled itself that there was no evidence Class-C misdemeanor arrests in Texas were at "epidemic" levels. Now, we have solid evidence that they are.

Texas Appleseed analyzed jail bookings for 11 of Texas' 254 counties and discovered more than 30,000 Class C arrests in a single year, ranging from seven (7) to 16 percent of jail bookings in counties studied. 

Meanwhile the Sandra Bland Act, passed in 2017 by the Texas Legislature, required new reporting by law enforcement on Class C arrests at traffic stops, separating them out from arrests for warrants or more serious Penal Code violations. When Just Liberty analyzed data from the largest cities and counties (PDs in towns bigger than 50,000; sheriffs in counties bigger than 100,000), there were nearly 23,000 Class-C-only arrests in 2018, with nearly 5,000 more made by Texas DPS troopers. Overall, Texans were arrested at about one out of every 150 traffic stops. But in some jurisdictions, the proportion was much higher: Waco PD reported arresting 4.5 percent of drivers its police officers pulled over, or roughly one out of every 22 drivers.

These two datasets corroborate that tens of thousands of these arrests are being made annually. (To be clear, they're measuring slightly different things: The Sandra-Bland data only documents Class-C arrests made at traffic stops, while the Texas Appleseed analysis includes Class-C arrests made under any circumstance by all agencies in those 11 counties.)

Overall, recent findings seem pretty consistent with past estimates. In 2016, an analysis of Harris County jail bookings by the Texas Criminal Justice Coalition found Class C arrests accounted for 11 percent of jail bookings in Texas' largest county. In Travis County, the Statesman reported, Class-C misdemeanors accounted for 12.5 percent of jail bookings in 2017. Those numbers fall squarely in the middle of the range Appleseed discovered.

Further, we know Texas municipal judges and Justices of the Peace issued more than 2 million warrants and capias pro fines for Class C misdemeanors in 2018, down from nearly 3 million just a few years ago. And we know that 524,628 people in 2018 satisfied their Class-C-ticket debts with "jail credit." Indeed, that figure is down significantly: In 2012, according to the Office of Court Administration, 820,231 people sat out their Class C fines in jail (combining totals for muni courts and JPs - select "Additional Activity" under "Section" to query on jail-credit data).

So we can say with confidence that Class C misdemeanor arrests are common, accounting for a significant portion of Texas jail bookings. Further, we know that they're not just happening at traffic stops, but that a large number of Class-C arrests occur in other settings (because the jail bookings numbers are so much higher than the traffic-stop numbers). Finally, we know that Class-C warrants have become ubiquitous, and hundreds of thousands of Texans end up in jail over them every year. Texas muni judges and JPs issue millions of such warrants annually and they never expire.

Austin PD's experience tells us that Class-C arrests can be radically reduced without harming public safety. And the data tell us they're not the only Texas jurisdiction that would benefit from such a policy.

The Creuzot Crucible: Critic raves over entire cast's performance in media-driven melodrama

The kerfuffle over Dallas District Attorney John Creuzot's rather modest decarceration proposals, discussed in this Grits post upon their announcement, has taken on rather telling and delicious overtones I had not expected.

What a delight! The DA's law enforcement critics came off like a Greek chorus of scalded cats. And I loved Governor Abbott in his new role as Inspector Javert!

The howls of recrimination from the usual tuff-on-crime crowd, using every nasty tactic in their rhetorical arsenal, could be heard from orbit. But the public hasn't sided with the lock-em-up hard-liners as reflexively as in the past, and so far, Creuzot hasn't backed down.

Best of all, at least for those of us who view all this weeping and gnashing of teeth as essentially performance art and judge it based on its entertainment value: Because Creuzot's policies are actually entirely modest and reasonable - not remotely as aggressive as other recently elected "progressive prosecutors" like Larry Krasner or Rachel Rollins - his critics look like buffoons, making outlandish claims that everyone can see on their face overstate and over-dramatize the issue.

The Combined Law Enforcement Associations of Texas immediately went to their go-to move: they called for Creuzot to straight-up resign, the equivalent of their frequent "no confidence" votes staged whenever a police chief disagrees with their affiliates locally. Notably, this tactic was promulgated in books and lectures by CLEAT founder Ron DeLord for two decades, most prominently in a police-union leadership textbook titled, "Police Association Power, Politics, and Confrontation."

However, DeLord, who is a self-branded acolyte of the Saul-Alinsky school of organizing, has more recently walked back his call for confrontation tactics by police unions, suggesting police had gained so much power that they now face an inevitable backlash. And this appears to Grits to be an example where the union has overreached.

A CLEAT spokesman declared, "When he was campaigning for the office, we don't remember not prosecuting crime as part of his platform." But that just shows they weren't paying attention during the campaign. The group I work with, Just Liberty, co-hosted a DA candidate forum in Dallas where Creuzot discussed non-prosecution of petty offenses and promised to produce this memo with the details within a few months in office. He wasn't specific about up-to-$750 theft, but he was about criminal trespass, and in general he ran on a platform of reducing incarceration, de-emphasizing low-level offenses, services instead of prosecution for the homeless, and using prosecutorial discretion to stop punishing the poor. No one who heard his campaign pitch would be surprised at this recent news.

Here's the absurd part: Dallas PD isn't arresting in these low-level shoplifting cases, anyway, precisely because they're too small-time to bother. Reported the Morning News, "the Dallas Police Department, shorthanded as it is, can't respond quickly to low-priority crimes like shoplifting." So there's some blame shifting going on here: Cops aren't arresting in these cases anyway, and have found an opportunity to shift responsibility to the the District Attorney. Even if they get what they want, though, the storekeepers aren't better off.

Creuzot is trying to make the best of a bad situation; the union is taking politicized pot shots.

Some of the local municipal police chiefs joined in the fun, even going to far as declaring they'd begin to prosecute these thefts in municipal courts as Class C misdemeanors. Those offenses do not carry jail time as a possible punishment, only a fine up to $500. But we're only talking about cases in which poor people are stealing basic necessities. How is fining them going to help? Who imagines they can or would pay?

Like I said, delicious! The unexamined assumptions and muddled thinking are just splayed out for everyone to see.

Creuzot's memo turned out to be a Rorschach test that tells us more about whomever is interpreting it than it does about the practical effects of his policies.

The most brilliant, glorious example of that had to be Governor Greg Abbott's pair of tweets. They were amazing, a magnificent fusion of Inspector Javert, Mr. Burns from the Simpsons, and Scrooge McDuck!

Opined the Governor, "If someone is hungry they can just steal some food. If cold, steal a coat. Where does it end? It's wealth redistribution by theft." The responses were perfect. I can't do them justice, go read them for yourself.

Then, after pausing for a bit to construct a tweet declaring all property taxes are theft (!), Abbott weighed back in, responding to a constituent who suggested that the problem of hungry people stealing food or people stealing a coat in the winter to keep warm might be resolved by other means.

TX provides for the hungry and needy through TANF and other programs. You proved my point. You & others reveal that STEALING is ok when people want things: cell phone, tire, lawn mower, almost any item you see in a store or in the open. That's socialism.

So let's be clear: Government programs that help the poor? Those are not "socialism." Instead, socialism is direct theft of private property by criminals, says the governor. (Like property taxes, apparently.) In his mind, police aren't arresting criminals, they're arresting socialists!

Again, utterly delicious!

Grits predicts this will all blow over soon because nobody has the authority to oust Creuzot over it, he's perfectly within his rights to exercise his discretion this way, and in fact if a Republican DA had done it, Abbott likely would never have said a word.

Again, to my mind, this should all be viewed as performance art. Everyone had a role to play in the media-driven melodrama, and the entire cast hammed it up admirably.

I'm already looking forward to the sequel.

'Thousands of Sandra Blands': Just Liberty analyzes new arrest data from Texas traffic stops

As the House Criminal Jurisprudence Committee today prepares to hear HB 2754 (White), the committee substitute to which would limit most Class C misdemeanor arrests (with certain public safety exceptions), Just Liberty put out a new analysis of data titled, "Thousands of Sandra Blands: Analyzing Class-C-misdemeanor arrests and use-of-force at Texas traffic stops." 

The analysis relies on the new racial profiling reports which came out March 1st, analyzing information for Texas police departments in cities with more than 50,000 people, and sheriffs in counties with more than 100,000. Here's the table from Appendix One of the report with the underlying data.

Readers will recall that new detail about Class-C arrests, use of force, and outcomes of searches were added to the report as part of the Sandra Bland Act passed in 2017. But the provision to restrict Class C arrests was removed before the law was passed. So HB 2754 amounts to unfinished business for those concerned about what happened to Sandra Bland.

Our findings: The practice of arresting drivers for Class C misdemeanors - not warrants, and not more serious offenses - is more widespread than portrayed by law enforcement. The 96 police and sheriffs in our sample arrested people nearly 23,000 times for Class-C misdemeanors last year, with the Texas Department of Public Safety accounting for nearly 5,000 more.

While the average arrest rate at traffic stops is low - a mere 66.7 per 10,000 stops - that's about one arrest out of every 150 traffic stops. And some agencies arrest people much more often. Waco PD stood out the most, arresting people at 451.4 times per 10,000 stops, or at just more than 4.5 percent of all traffic stops in 2018.

The new reporting also included data on how often police use injury-causing force at traffic stops. After Austin PD corrected its misreported data, Houston PD stood out with the highest rate of injury-causing force among the jurisdictions in our sample, at 53.2 incidents per 10,000 stops. That's about one out of every 188 drivers pulled over by HPD.

These data represent fewer than 100 law enforcement agencies, but more than 2,000 agencies must submit racial profiling reports because they perform traffic stops in come capacity. Agencies in our dataset represent the largest jurisdictions, but not all by a longshot. If we assume that these departments plus DPS represent 60 percent of traffic stops in the state, and that the average arrest rate for the other 40 percent is the same as in this sample, then Texas law enforcement agencies arrested more than 45,000 people at traffic stops statewide last year, the report estimated.

These higher-than-previously-understood estimates are corroborated by Texas Appleseed's recent analysis of jail bookings. Examining data from eleven (11) counties, they found more than 30,000 jail bookings where Class C misdemeanors (not warrants) were the highest charge. The difference between analyzing jail bookings and racial-profiling data is that jail bookings include Class C arrests which happened anywhere. The racial profiling reports Just Liberty analyzed only consider arrests made during traffic stops. 

Taken together, these analyses demonstrate that the overall number of Class C arrests is much higher than anyone ever imagined when this topic has been discussed in the past.

$12K bail for stealing $1?; Twin Peaks prosecutions petered out; Harris justice system still digging out after Harvey, and other stories

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

Hurricane Harvey aftermath still affecting Harris County
The Houston Chronicle reports on long delays and an uncertain future for Harris County criminal courts. Commenters are blaming the new county judge, but this is a crisis she inherited. Meanwhile, terms of the county's bail settlement proffer has been announced; more on that development once your correspondent has time to digest it and talk to a few folks.

Twin Peaks prosecutions petered out
The last of the Twin Peaks biker shooting cases were dismissed. What a disaster! After all that hoopla - arresting many dozens for no good reason - not one person will be prosecuted for anything in the whole mess. Grits was told by a defense attorney whose seen the discovery that there may be a not-completely-unacceptable reason for that: The people involved in the shooting were all killed by one another or police during the event, and nearly everyone who was arrested were just innocent people who happened to be there. The few remaining cases finally dropped were ancillary to the event and the statute of limitations has now run out on all of them. Grits can't think of many recent competitors for examples of more egregious prosecutorial overreach. Abel Reyna screwed the pooch on the day of the shootings, substituting his own judgment and investigative approach for police commanders, and the community has been paying a steep-and-getting-steeper price ever since.

Panhandler gets $12K bail for stealing $1 at a food truck
An aggressive panhandler snatched a dollar bill - maybe two, it's a disputed account - from a food-truck customer in Austin last week and the courts gave her a $12,000 bail amount. What kind of jackassery is this? Are they TRYING to give bail reformers a poster child? Good Lord!

Fighting for police accountability via their union contract
Chas Moore and Sukyi McMahon from the Austin Justice Coalition had an op ed in the New York Times about their group's fight to reform the local police-union contract and improve civilian oversight of the Austin Police Department. For more background, check out this interview with Moore and two police-union negotiators in the aftermath of the contract agreement, reflecting on the year-and-a-half long fight.

Grand jury declines indictments for guards accused of falsifying disciplinary cases
Hard to get District Attorneys in small counties with sizable prison-guard populations to get real enthusiastic about prosecuting corruption, so one shouldn't be completely surprised that a grand jury declined to indict guards who allegedly falsified disciplinary cases against inmates. But it certainly contributes to an ongoing perception that the agency benefits from insular, rural settings and that external oversight is needed.

Texas still leader in exonerations/false convictions
Texas tied with New York for the most exonerations last years, according to the national registry. That's primarily because of exonerations based on plea deals based on flawed drug field tests, which have caused hundreds of false convictions in Harris County, and probably other jurisdictions where they haven't been uncovered because no one ever looked.

When prosecutors are too jaded to make a proper argument and too lazy to go farther than their Twitter feed to find an improper one
The Texas Court of Criminal Appeals ordered a new trial after a prosecutor used a viral video of a lion trying to get at a baby on the other side of a glass partition at a zoo to say that a defendant was a dangerous predator.

Is asset-forfeiture reform ready for its close-up?
Monday is civil-asset forfeiture reform day in the Texas House Criminal Jurisprudence Committee.

For the reading list
Finally, here are a few disparate items for the reading list:

• ProPublica: Why small debts matter so much to black lives
• Washington Post: You're out of prison, now you have to get your driver's license back
• New York Times: If prisons won't work, what will (Grits is quoted in this piece)
• New York Times: How tough on crime prosecutors contribute to mass incarceration
• New York Times: Tracking phones, Google is dragnet for the police
• Harvard Business Review: Sleep-deprived judges dole out harsher punishments

Austin PD misreported use of force data at traffic stops

After The Atlantic and the Austin Chronicle picked up on the data Grits first crunched in this blog post regarding use of force and Class C arrests at Texas traffic stops, the Austin Police Department issued a correction regarding its use-of-force data in the department's most recent, annual racial profiling report.

New reporting on use of force was mandated by the Legislature as part of the 2017 Sandra Bland Act, which required departments to include much more data about traffic stops than anyone had ever seen from local agencies. So police were reporting much of this information for the first time (though presumably it's all recorded somewhere in internal records).

According to Chief Bryan Manley, APD statisticians included the number of ALL use of force incidents resulting in bodily injury, rather than only those that occurred at traffic stops. That reduced their 2018 number from 921 - which put them at the highest statewide rate among larger agencies - to 80, which shifts the agency toward the back of the pack when it comes to the rate of use of force.

With APD's correction, Houston PD takes the prize for using force at traffic stops at higher rates than any large agency. More on this Monday when Just Liberty releases a new report analyzing these data.

Dallas DA dishes decarceration decisions: John Creuzot releases a much-anticipated memo

At a debate co-hosted by Just Liberty last fall, then-Dallas-DA-candidate John Creuzot promised to produce a memo three months into his term to identify changes/reforms designed to reduce mass incarceration.

Here's the memo. Check it out! Let's run through some highlights:

Marijuana: The Dallas DA will not prosecute first-time offenders unless the offense occurred in a drug-free zone, involved a deadly weapon, or there is evidence of delivery. He also said he'd decline first-time 3rd degree felony THC possession cases, with the same exceptions.

Harder drugs: Creuzot will no longer prosecute "trace" drug cases, which typically involve sending paraphernalia to a crime lab to scrape traces for a possession prosecution. In addition, his office will not file drug charges on arrestees until after a lab report has come back, an will ask judges for summons instead of warrants to get those folks back into court.

Criminal trespass: Aiming to reduce prosecution of homeless people, Creuzot will decline criminal trespass prosecutions unless they involve a residence or "physical intrusion into property."

Theft of Necessary Items: Creuzot pledged not to prosecute theft under $750 "unless evidence shows the alleged theft was for economic gain."

Driving With License Invalid: Here's one where he could have gone further. Creuzot announced a "diversion program that will result in charges being dismissed for defendants who clear their drivers licenses." Since most people with suspended drivers licenses had them suspended because of nonpayment of Driver Responsibility surcharges, and since those aren't going away (at least not just because of this announcement), most folks simply won't be able to "clear" their licenses. Instead, he should simply decline prosecution for DWLI, as he's doing for most pot cases. No one needs to be arrested for what in essence is a criminalized administrative violation.

Probation: Arguably the most important measure announced when it comes to decarceration in the state prison system is Creuzot's decision to significantly shorten probation stints, a decision with a great deal of evidence-based support. He suggested presumptive probation terms of 6 months for misdemeanors, 180 days for state jail felonies, two years for 3rd and 2nd degree felonies, and 5 years for 1st degree felonies. He also instructed prosecutors to stop revoking probationers for "technical violations" that do not threaten public safety. Regular readers will recall that about half of probationers revoked to prison in Texas have their probation terminated over technical violations.

Bail reform: Creuzot established a presumption of release for misdemeanants and state-jail-felony defendants with no criminal convictions in the last five years. If there is clear and convincing evidence the accused will fail to appear or a victim could be harmed, a risk assessment will be used "as a guide for developing appropriate conditions of release," a protocol that will also be applied to more serious offenses.

Magistration: "As soon as construction permits," Creuzot will begin assigning prosecutors to magistration hearings so prosecutors "can screen cases and decline to prosecute those cases" that fall within his new policy.

***

To be sure, Creuzot's reform policies are more moderate than those rolled out last year by Philadelphia DA Larry Krasner. (See his memo.) Grits would have liked to see the Dallas DA embrace some of the plea-bargain and sentencing reforms adopted in Philadelphia. But this announcement definitely ensconces Creuzot in the ranks of reform-minded prosecutors; nobody else in Texas is doing more.

MORE: Here's the Dallas News' coverage of the memo.

Governor Abbott radically scales back support for reduced pot penalties

I'll take "Things you say in a campaign that
you don't really mean" for $500, Alex

What a disappointment!

During his campaign last year during a debate with Democrat Lupe Valdez, Governor Greg Abbott announced his support for making possession of up to two ounces of marijuana a Class C misdemeanor. But the governor has now backed off of that position, radically limiting his earlier proposal. He's still for reducing marijuana penalties, but only for amounts so small that it won't affect most cases.

At the House Criminal Jurisprudence Committee meeting on Monday, Chairman Nicole Collier laid out a new committee substitute to HB 335 (Dutton) to make possession of only up to 2 grams a Class C misdemeanor. On a third offense, charges would increase back to a Class B. She declared the changes were made at the request of Governor Abbott.

The governor said last year he did not want to see "jails stockpiled with people who have possession of small amounts of marijuana." But that's exactly what will continue to happen thanks to this change in the bill.

Two grams is a very small amount. Texas law currently treats up to 2 ounces as a Class B misdemeanor, which is considered a user-level amount. Most folks buy pot in quantities of an ounce (~28 grams), a quarter ounce (~7 grams), or an eighth of an ounce (~3.5 grams). So this change will keep pot possession a Class B misdemeanor for most people charged with the offense.

The same committee earlier approved HB 63 (Moody) making possession of up to one ounce of marijuana a civil penalty. But the governor reportedly favors keeping pot possession in the criminal statutes.

In this, Abbott is out of sync with his own party. The Texas GOP state party platform approved last year declares, "We support a change in the law to make it a civil, and not a criminal, offense for legal adults only to possess one ounce or less of marijuana for personal use, punishable by a fine of up to $100, but without jail time." Moody's bill is the closest legislative proposal to that position.

If the scaled-back version of HB 335 is all Governor Abbott will allow to happen, then I suppose, as my father likes to say, it's better than a sharp stick in the eye. But after seeing him campaign on a more aggressive proposal back when he was seeking to appeal to swing voters in a general election, it's discouraging to watch the governor backtrack.

Texas bail-reform legislation not ready for prime time

Competing bail-reform bills are up in the Texas House Criminal Jurisprudence Committee today, but in this writer's view, none of them is ready for prime time.

For reasons articulated before, the Texas Judicial Council bill carried by Murr/Whitmire (HB 1323) fails to address the main constitutional flaws identified in Texas' system by federal litigation.

The Governor's bill, carried by Rep. Kyle Kacal and backed by the bail-bond industry (HB 2020), is even worse. It creates a new layer of government - the Bail Advisory Program - and the committee substitute stocks it with politicians instead of issue-area experts. The program's mandate? To reinvent the wheel, creating a new validated-risk-assessment tool, even though the Office of Court Administration already has one that's available free for counties to use.

Neither bill addresses the failure of counties to provide defendants counsel when magistrates set bail, which is the principle issue at stake in all three federal litigation sites. And neither addresses the fundamental constitutional question of incarcerating people because they can't afford to pay money bail. So the matter won't be resolved no matter which bill passes.

In that light, Grits has come to believe legislating this topic is premature. In two years, once the 5th Circuit has clarified the constitutional baseline, it will be possible to create legislative rules that implement it. But if legislators aren't going to address the core subjects at issue in the federal litigation, Grits fails to see the point of passing anything now.

Vetting police arguments against limiting Class-C misdemeanor arrests

In preparation for tomorrow's hearing on HB 482 (Thompson) limiting Class C misdemeanor arrests Texas House Homeland Security and Public Safety Committee, I just watched last session's hearing on Chairwoman Senfronia Thompson's similar bill, which passed out of that committee on a 7-1 vote.

A few thoughts:

First, on defining the problem: the ship has sailed on the idea that Class C misdemeanor arrests are rare or only used in extraordinary circumstances. They happen tens of thousands of times around the state every year. and are a significant contributor to local county jail costs. No need for that debate again. The problem is much bigger than even the most vocal critics estimated.

Second, nobody has "Spidey Sense": Almost all the police testimony involved war stories of times when an officer had no evidence of a crime but sensed something was wrong and arrested a serious criminal on a hunch. The problem is, nobody knows how many times officers guess wrong, and the likelihood is, it's a lot. After all, every time a defendant is booked on Class C charges, it means the officer was unsuccessful at finding evidence of anything more serious. And that happens tens of thousands of times per year.

In the comic books, Peter Parker may have a "Spidey Sense" that lets him detect danger. But police officers aren't superheroes who've been bitten by radioactive spiders. And they are constrained by legal doctrines like "probable cause" and "reasonable suspicion" that do not concern masked comic-book vigilantes.

Third, a police officer opposing the bill outlined a scenario where a suspect left a drug buy and police wanted to arrest them with the evidence, but chose to arrest them for a Class C misdemeanor traffic violation because they didn't want to "burn" their confidential informant.

Grits had so many questions on this one! So you're not going to mention the confidential  informant or the undercover drug operation in the arrest report, even though you're going to charge the person with drug possession? I am not a lawyer, but wasn't this officer in essence admitting to using Class C misdemeanor arrests to get around the Michael Morton Act and Brady v. Maryland? Nobody asked, but the whole scenario didn't sound kosher.

Fourth, nearly everything specific that police named as a problem, like public intoxication or Class-C assault, are excepted in the committee substitute, which allows police to arrest for Class Cs if failing to do so would result in a continued breach of the peace.

Finally, the lobbyist for CLEAT repeated a phony re-imagining of the Timothy McVeigh story to argue against the bill. Grits has written about this before. McVeigh was arrested because he informed the Oklahoma state trooper who pulled him over that he was carrying an illegal handgun. That's what he was arrested for, not a fine-only traffic offense. The trooper has said so publicly many times.

None of that sounded too convincing, frankly, which I suppose is why the bill passed out of committee two years ago by a 7-1 margin, dying on the General State Calendar on the final day awaiting a House floor vote. Now that the legislation has returned with new life, having been endorsed by both state political party platforms after being stripped out of the Sandra Bland Act in 2017, here's hoping the committee looks favorably on Rep. Thompson's bill once again. It's time is now.

'Epidemic' of Class-C arrests poo-pooed in 2001 by SCOTUS now documented by new Appleseed report, racial-profiling data

"Data, data, data, I cannot make bricks without clay." - Sherlock Holmes

One of the frustrating aspects of debating the issue of Class C misdemeanors in Texas has been a general lack of information about how often people are arrested for these low-level infractions. When legislation to limit such arrests was heard in 2017, law enforcement claimed Class-C arrests almost never happened and were nothing to worry about. "Move along," we were told, "nothing to see here."

Except that was patently false: Now we know Class C arrests are common as dirt. They occur all the time, every day, all over the state.

Texas Appleseed just published Exhibit One for that contention: "An Analysis of Jail Bookings: How Texas counties could save millions of dollars by safely diverting people from jail." (See also the appendices.) This new report is based on an analysis of jail booking data from 12 of the state's 25 largest counties, and includes a number of new analyses and data points that weren't previously available. Among their findings, most jail bookings are for misdemeanors, not felonies. Here are the most common charges that result in jail bookings, according to Appleseed's research:

• DWI
• Pot possession
• Felony drug possession
• Misdemeanor theft
• Assault/Family violence
• Class C misdemeanor traffic violations

One notices from that list that the Legislature could do a lot this session to reduce jail bookings. Reducing marijuana penalties (either to a civil penalty or from a Class B to Class C misdemeanor) would go along way toward keeping low-risk people out of the jail who don't need to be there. Class C offenders are another large category of jail entrants who almost never need to be incarcerated. Legislation is being heard in House committees on both those topics this week.

Apropos of tomorrow's Homeland Security and Public Safety hearing on HB 482 (Thompson) limiting arrests for non-jailable offenses, Appleseed honed in on this problem of Class-C-misdemeanor incarceration. According to their research, "People charged with fine-only misdemeanors and no more serious charge make up an alarming number of jail bookings in most counties analyzed."

Appleseed found that, "Across 11 counties analyzed, more than 30,000 people were booked into Texas jails for a Class C misdemeanor and no more serious charge in a single year." (Numbers in Dallas were skewed downward because Class C defendants were mostly incarcerated in unregulated municipal jails for which Appleseed couldn't acquire data.)

That's an exceptionally large number, and for only a fraction of the state! It also jibes with other recent reporting. When Grits compiled new data on Class C misdemeanor arrests at traffic stops from about 60 larger Texas jurisdictions, I found more than 24,500 people arrested for violations of Class C traffic laws or municipal ordinances (excluding people arrested on warrants and for Penal Code violations). Assuming even more people are arrested in non-traffic-stop circumstances, 30k in 11 counties sounds reasonable. These are different data sources measuring different things, but the implications are the same: Tens of thousands of Texans annually are being arrested for Class C misdemeanors as the highest charge.

Before now, we knew that about 11 percent of jail bookings in Harris County were from Class C misdemeanors, thanks to a 2016 analysis Kathy Mitchell performed for the Texas Criminal Justice Coalition. But this Texas Appleseed data shows it's a statewide problem.

By law, magistrates in Texas must process Class C arrestees in 48 hours; in larger counties, it typically happens within 24 hours. However, if a driver does not have money to pay the ticket, they could wait longer. Appleseed suggested that jailing Class B and C misdemeanor defendants for longer than a few days worsens recidivism prospects and harms public safety:

In a groundbreaking study of defendants in Kentucky jails, low-risk defendants held at least 2 to 3 days were almost 40% more likely to commit a new crime before trial than a low-risk defendant held no more than 24 hours. Further, the longer low-risk defendants were held, the more likely they were to reoffend. Those detained more than a month were 74% more likely to commit a new crime before trial than those released within 24 hours. 

The point is that even a couple of additional days in jail increases one’s risk of rearrest. Each day in jail is a day of missed work, a day without access to substance abuse and mental health treatment, a day away from family and children. When jail booking cannot be avoided entirely, counties must prioritize releasing low-risk people as quickly as possible back to their community before trial. 

Yet, a substantial number of people are staying past this three-day mark after being charged with nothing more serious than a Class B misdemeanor. More than 24,000 people charged with either a Class C or Class B misdemeanor and nothing more serious spent more than 3 days in jail over the course of a single year in 11 counties. Of these, about half (i.e., more than 12,000 people charged with a Class C or Class B misdemeanor and nothing more serious) spent more than 10 days in jail in those counties. 

For 10 of the 12 counties, Appleseed was able to calculate the total bed days (at roughly $60 per day) spent on various misdemeanor offenses. Collectively:

• Class C misdemeanors accounted for 61,825 jail bed days.
• Class B misdemeanors accounted for 316,639 jail bed days
• Class A misdemeanors accounted for 480,495 jail bed days.

Jefferson County (Beaumont/Port Arthur) was by far the worst jurisdiction in the Apppleseed analysis when it came to Class C incarceration: 42% of all misdemeanor-bed days in the county jail were accounted for by Class-C defendants. That's unfathomable, really.

Appleseed's recommendations will ring familiar to Grits readers:

(1) End jail bookings for Class C misdemeanors.
(2) End most jail bookings for offenses eligible for citation.
(3) Quickly release most people after jail booking on personal bond.
(4) Implement diversion programs.
(5) Analyze local data to develop local solutions to reduce jail use.

Grits is delighted to see so much additional data produced about Class C misdemeanor arrests just before the Legislature considers limiting them.

Most readers have likely forgotten (but bill-author Senfronia Thompson certainly has not) that the Legislature in 2001 approved a bill similar to HB 482 limiting arrests for Class C misdemeanors in reaction to the Supreme Court's decision in Atwater v. City of Lago Vista. Rick Perry vetoed that legislation, as well as another, more modest effort to limit Class C arrests passed the following year.

At the time, law enforcement insisted these sorts of arrests were vanishingly rare. Sandra Day O'Connor's dissent in that case is an excellent primer on why such arrests should be limited, but even she thought arrests for non-jailable Class Cs didn't happen often. "Such unbounded discretion carries with it grave potential for abuse," she wrote. "The majority takes comfort in the lack of evidence of 'an epidemic of unnecessary minor-offense arrests.' But the relatively small number of published cases dealing with such arrests proves little and should provide little solace."

Now, the "epidemic of unnecessary minor-offense arrests" about which O'Connor rightly fretted has been thoroughly documented. Whether one looks at jail bookings, as does Texas Appleseed's analysis, or at recently published Class-C arrest data in Texas racial profiling reports, it's now clear that arresting Texans for non-jailable misdemeanors is a routine, everyday occurrence across the state.

Both the Republican and Democratic state party platforms call for ending arrests for Class Cs. HB 482 is sound, bipartisan public policy from both a justice-reform perspective and from a perspective of fiscal conservatism. It's correcting a wasteful, ill-considered policy that does more harm than good.

See prior, related Grits posts:

• Class C misdemeanor arrests in Texas by the numbers
• New reports show Austin police use force at traffic stops much more often than other agencies
• Defining an 'undue hardship': Updating last session's debtors-prison reform bill
• Texans incarcerated thousands of years over traffic ticket debt
• Texans think justice system skewed against poor, support end to debtors prison practices
• Banning arrests for Class Cs, giving drivers notice, would improve traffic stop culture
• Pretext-based policing and arrests for non-jailable offenses
• Bill to limit Class C arrests target of red-herring arguments
• New laws aimed at reducing ticketing in schools worked: 83% fewer last year
• Reflecting on Rick Perry's criminal justice vetoes

Class C misdemeanor arrests and incarceration in Texas, by the numbers

Beginning with the consideration of HB 482 (Thompson) in the House Homeland Security and Public Safety Committee on Wednesday, the Texas Legislature will spend quite a bit of time over the coming weeks considering the consequences of arrest and incarceration for Class C misdemeanors, which in Texas are minor offenses carrying a maximum punishment of a $500 fine and no jail time.

There are two ways people end up incarcerated over Class C misdemeanors. First, after the US Supreme Court okayed the practice in Atwater v. Lago Vista (2001), police may arrest drivers for minor traffic offenses or violations of municipal ordinances, even if the maximum punishment is only a fine. That's what happened to Sandra Bland. Though she was eventually charged with resisting, when the officer first placed her under arrest, it was for the underlying charge of failure to signal a lane change.

Alternatively, if drivers can't pay fines and fees and don't show up for court, a warrant or "capias pro fine" may be issued for their arrest. Millions of such arrest warrants are outstanding at any given time, and hundreds of thousands go to jail each year because they can't afford Class C fines.

For purposes of one-stop shopping, Grits thought it worthwhile to reiterate some of the basic data surrounding arrests and jail for fine-only offenses in Texas all in one post. For fun, let's roll them out Harper's-Index style:

***

Rate of arrest for Class C misdemeanors at traffic stops in 2018 by the Texas Department of Public Safety: 18.4 per 10,000 stops.*

Rate of arrest for Class C misdemeanors at traffic stops in 2018 by Waco PD: 451.4 per 10,000 stops.*

Proportion of jail admissions in Harris County in a four-month 2016 study for which a Class C misdemeanor was the highest charge: 11%.

Proportion of traffic stops at which Texas DPS troopers used force against a driver in 2018: 17.02 per 10,000 stops.*

Proportion of traffic stops at which Austin police officers used force against a driver in 2018: 77.2 per 10,000 stops.*

Number of Texans in 2018 who sat out their Class C fines and fees in jail because they couldn't afford to pay: 524,628.**

New arrest warrants and/or capias-pro fines issued by JPs and Municipal Judges in Texas in 2018 for Class C misdemeanors: 2,141,656.**

Number of Texans for whom judges waived Class-C fines for indigence in 2018: 54,794.**

Percentage of Texans who, according to an Office of Court Administration poll, disapprove of jailing people over fines and fees when defendants cannot afford to pay: 66%.

Percentage of Texans who believe "the wealthy enjoy substantially better outcomes in the criminal justice than poor and working-class people": 81%.

Percentage of Americans the Federal Reserve says cannot pay a surprise $400 bill without selling something or going into debt: 40%.

Percentage of Americans the Federal Reserve says cannot pay their current month's bills: 20%.

* Source: Compiled from agency racial profiling reports from March 1, 2019. See more background here.
** Office of Court Administration Judicial Statistics data query.

Bail-reform blues: Can't please all parties when reforming pretrial-detention process

Governor Greg Abbott's endorsement of bail reform last year appeared to give the issue fresh life. But Abbott has now backed a bail-reform bill that eschews best practices and instead puts his office at the center of future decisions about pretrial reform.

The Houston Chronicle editorial board rightly opined that the move puts legislative reform efforts at extreme risk, but it's hardly just the governor. There's a swirl of backroom drama surrounding this topic with an array of competing interests and agendas, and no obvious way to navigate the morass. Here's an overview of interests framing the topic:

• Federal court injunctions have mainly focused on representation of indigent defendants at bail hearings and eliminating discrimination based on ability to pay.
• Counties oppose requiring appointment of counsel for indigent defendants earlier in the process, considering this an "unfunded mandate."
• The Texas Judicial Council proposed using risk assessments to reduce incarceration of low-risk offenders (the Office of Court Administration developed an instrument based on work by the Laura and John Arnold Foundation to create a version counties could use for free).
• The bail industry opposes use of risk assessments with the heat of a thousand suns and is investing big money in lobbying and communications strategies to undermine bail reform efforts.
• After the death of a state trooper named Damon Allen, Governor Abbott weighed in to say his biggest priority was expanding the scope of preventive detention.
• The criminal defense bar adamantly opposes granting any additional preventive detention powers to the government.
• Criminal-justice reformers are split. In theory, all support reduced pretrial incarceration in county jails, but some oppose the use of risk-assessment algorithms which are viewed as racially biased.

The Governor's proposal criticized by the Chronicle focuses primarily on preventive detention and expanding the power of his office over local court processes. The federal litigation driving the issue is more focused on access to counsel at bail hearings and reducing unjustified pretrial detention. Meanwhile, the Whitmire/Murr legislation ignores the access to counsel issue and promotes risk assessments and preventive detention, trying to merge the Governor's priorities with the judiciary's.

Never say never, but it's hard to see the path toward threading that needle. And if it were to occur, the resulting bill likely wouldn't resolve the issues at stake in the federal litigation, and we'd be back doing this again in 2021. After the federal litigation has finished, it will be much more clear what needs to be in the bill to ensure counties meet baseline constitutional standards, since they will have been outlined by the 5th Circuit.

In the end, the will may not yet exist to solve the problem through the political process. Certainly there is no consensus regarding what reform should look like and who should control it.

But much could change between now and 2021. If the Lege fails to act this year, odds are federal litigation presently pending in the 5th Circuit will reach its denouement between now and the next time they meet. That will create a new baseline for pretrial-detention rules and give the Legislature much more guidance, and possibly different priorities.

So look for the Texas Lege to revisit bail reform in 2021, whether or not a bill passes this time.

Modifying 3-strikes theft enhancement would ↓ TX state-jail population

On Monday, the Texas House Criminal Jurisprudence Committee will hear a good little decarceration bill modifying the enhancement for misdemeanor three-strikes theft. This one should have been changed long ago.

Under current Texas law, if at any time in your life you commit three incidents of misdemeanor theft, regardless of the value of the property, prosecutors can charge it as a state-jail felony. Even if the third "strike" is stealing candy from the grocery-store check-out line, prosecutors can seek a felony conviction and sentence.

HB 1240 by Rep. Yvonne Davis would revise this statute in two important ways: First, it would require that the lower-level thefts be within five years of one another to count toward a penalty enhancement. Piecing together a new, theft with two others that are decades old will no longer be allowed.

Second, the penalty increase stemming from a third "strike" would only bump the charge up by one category. So if the third strike were a Class A misdemeanor ($750 to $2,499.99), it would make no difference. But if it were a Class C or B misdemeanor, the penalty would still be a misdemeanor.

This change will further reduce the number of inmates entering Texas state jails, which notoriously have the highest recidivism rates of any facilities in the system.

Just Liberty reviewed Texas Department of Criminal Justice datasets and discovered that three-strikes theft accounted for almost 2,400 state-jail admissions in the 2018 fiscal year. This is the second most common reason for a state-jail sentence after possession of a controlled substance.

A few of those folks would have still gone to state jail under HB 1240. But because most theft involves low-value items, many more people would have been charged with misdemeanors instead of felonies. Grits wouldn't be surprised if HB 1240 all but eliminated three-strike theft offenders in Texas state jails.

Hard to argue with this one: Reduces incarceration in state jails where recidivism is high, reduces public perceptions of unfairness, but still sends a message that repeat theft won't be tolerated. Grits is delighted Rep. Davis proposed the bill and pleased that Chairwoman Nicole Collier is taking it up on the early side this session. HB 1240 deserves strong, bipartisan support from criminal-justice reformers.

Why Police Should Be Required to Get a Warrant to Use Cell-Site-Simulators (aka, "stingrays")

Legislation heard this week in the Texas House Criminal Jurisprudence Committee, HB 352 (Blanco) would require warrants for Texas law enforcement to use so-called “stingrays” or “cell-site simulators” to track people's cell phones, and provide more transparency surrounding use of these devices.

So-called “Stingrays” or cell-site simulators are examples of relatively new surveillance techniques hovering at the bleeding edge of both cell-phone technology and Fourth Amendment jurisprudence. Because their use has been largely shrouded in secrecy and few clear precedents exist to model limits on this tech, the handful of law-enforcement agencies using it have until now operated in virtually a regulation-free zone.

Rep. Cesar Blanco, a third-term Democrat and former Navy intelligence office, understands signals intelligence better than probably any other legislator and is an excellent bill sponsor for this topic.

How Cell-Site Simulators Work
Cell-site simulators work by tricking your cell phone into believing it’s attaching to a legitimate cell-phone tower, which it “pings” periodically to make sure the phone is ready to make a call. This means that, when targeted users (or others in their vicinity) make a phone call, it’s routed through the cell-site simulator instead of the nearest tower. Representations by Houston PD at Monday’s hearing about the limited nature of the technology understated its capacity.

Cell-site simulators hijack and divert cell-phone signals from their commercial carrier’s network, making it more similar to a wiretap than a “pen register.” Some models of cell-site simulators allow full-blown wiretapping; others provide access to metadata from calls and callers; others may only provide information on signal strength and direction, allowing investigators to triangulate location with just a few measurements. It all depends on how much functionality an agency chose to pay for; the device is capturing the entire signal and can let investigators access any or all of it.

Movement toward ‘stingray’ warrant requirement
The US Supreme Court has not yet ruled on so-called “stingrays,” but several states already require warrants for cell-site simulator use with no ill effects. (Virginia, Washington, Utah, Minnesota, and California.)

On December 19, 2016, the U.S. House Committee on Oversight and Government Reform issued a comprehensive, bipartisan report on law-enforcement use of cell-site simulators and recommended legislation that would require “probable cause based warrants” to “ensure that the use of cell-site simulators and other similar tools does not infringe on the rights guaranteed in the Constitution.”

The US Department of Homeland Security established a policy of seeking a warrant for use of cell-site simulator technology with limited exceptions for exigent circumstances.

Finally, civil libertarians have persuasively argued that, when a cell phone inside someone’s home is targeted with signal interception via a cell-site-simulator device, it per se violates the Fourth Amendment right to security from unreasonable searches of one’s “houses, papers and effects.” (Traditionally, Fourth-Amendment protections inside the home have been much stronger than elsewhere.)

Secrecy breeds mistrust
At Monday’s hearing, police expressed fears that innocent people might be hurt if information from search warrant affidavits about how and when police used the technology ever surfaced. But search-warrant affidavits have been public records since the dawn of the Republic. The more significant concern is that law enforcement will use the technology unaccountably and secrecy will protect them.

Not only does the public deserve to know when the government is using invasive surveillance technology, undue secrecy creates systemic problems. In Houston, police have even kept prosecutors in the dark when stingray tech was used.

Texas legislators should extend the same warrant requirement mandated by the Supreme Court in US v. Carpenter to cell-site simulator devices. This shadowy practice has flourished for too long on the edges of modern technology and privacy law. HB 352 is Texas’ opportunity to begin to restrain and regulate it.

See prior, related Grits coverage.

Carpenter codification non-controversial so far

Rep. Cesar Blanco also filed a related piece of legislation, HB 353, which essentially codifies the US Supreme Court case US v. Carpenter requiring a search warrant for the government to access cell-phone location data held by wireless cell-phone carriers. (Readers may recall Grits' poetic ode to the case after the oral arguments.)

Unlike the stingray legislation, no one opposed this bill. There was a half-hearted effort by a cop speaking "on" the legislation to preserve the real-time vs. historic location information distinction that the Texas Court of Criminal Appeals tried to stake out in Sims v. Texas. But it's awfully hard to defend the idea that the government has a right to know where you are at any given time, in real time, without demonstrating probable cause. From the solitude of Judge Barbara Hervey's chambers at the Court of Criminal Appeals, one perhaps can make that strained argument without fear of recrimination. At a legislative hearing, nobody even tried. 

The reality is, even if they tried to do a Less-Than Carpenter Codification, this area of constitutional law is fluid and trending toward requiring more warrants for surveillance, not less. As such, Grits imagines that trying to short-change the warrant requirement could result in future federal court decisions rendering the language anachronistic. Rep. Blanco's approach is the wiser one.