Sunday, May 03, 2015

Finally ... the conservative case against pandering to police unions

Interesting to see a meme I've heard from several Texas conservatives this year repeated in the pages of the New York Times. See Ross Douthat's "Our Police Union Problem," in which he declared that there is "a strong argument that the rise of public sector unions represents a decadent phase in the history of the welfare state, a case study in the warping influence of self-dealing and interest-group politics." However, he lamented, "this argument also applies to a unionized public work force that conservatives are often loath to criticize: the police." He concluded by challenging conservatives to finally "reckon with the ways in which police unions, no less than other interest groups, can align against the public that their members vow to serve."

Douthat also linked to a couple of related conservative critiques published in December, one of which I'd seen and one of which I hadn't.

Grits links to these items not because of Texas-specific content - there isn't any. But a shift in the political balance of power which would naturally result from the sort of recalibration Douthat envisions within the conservative movement is a trend with specific implications for Texas politics.

Texas doesn't yet have conservative politicians who've dared to openly take on the police unions. We haven't seen the Texas Public Policy Foundation, for example, directly challenge union power the way they routinely do with teachers' unions. Increasingly, though, one can hear the rumblings of discontent rising inexorably closer to the surface. Especially where unions bypass traditional labor concerns to engage on policy issues (e.g., opposing civil penalties for pot), there's a growing sense that their reach has exceeded their grasp.

In the near term - say, over the next biennium or two - I could see the conservative, anti-union view associated with the above-linked essays becoming infused within the grass roots base of the party, with the more centrist wing and statewide pols siding with the police unions. That would leave Democrats with a precarious choice between their union sympathies and their base - a choice that's even harder for them in red states where the union movement is weak.

It's always been hypocritical to blast public employee unions but exempt police unions from the same critique. What's changing is that voices within the conservative movement are for the first time openly challenging that exception.

It's remarkable the extent to which the political landscape on criminal justice has changed since the turn of the century when police unions in Texas enjoyed virtual veto power over criminal justice legislation. That's not true today, though they still enjoy undue deference. But if Douthat's views became widespread within the GOP base, it would dramatically alter the already shifting political terrain facing criminal-justice reform.

Saturday, May 02, 2015

Raise-the-Age Shenanigans

WTF?

Texas' much-ballyhooed raise-the-age legislation - HB 1205 by Dutton increasing the age of adult criminal culpability in Texas from 17 to 18 - passed unanimously out of the House Juvenile Justice and Family Matters Committee on April 8th. But, as of today, with just ten days left until the House can no longer consider House bills, the committee report still hasn't made its way to the Calendars Committee, which sets bills on the agenda for a vote by the full House.

Grits cannot recall in my experience a committee report ever taking longer to get from the originating committee to Calendars after a positive vote. Usually, a week is considered a long time. More than that and in my experience somebody is f%^#ing with you. But who? It's the committee chairman's bill! Grits' sources tell me the delays stem from Legislative Council's apparent inability to compile a valid bill analysis, which hardly seems credible. Yes, they're understaffed, but nothing justifies that long a delay!

Barring an intervention by leadership, this staggering hiatus probably killed the bill. Grits can't say who's behind this unprecedented postponement, but I call shenanigans!

A non-comprehensive survey of good crimjust bills still moving

It's May of an odd numbered year which means wheat and chaff are separating when it comes to criminal-justice reform legislation from Texas' 84th session. It's now possible to see much more clearly which stand-alone bills still have a chance to pass. (N.b., where nothing has changed from last week's assessment I haven't updated all of those bills.) Anything, of course, can be revived as an amendment if germane to another bill's caption, so Grits won't speculate on what bills appear dead. Instead, let's focus on reform bills still living. Here's a non-comprehensive survey of good bills still moving.

The last day for the full Texas House to consider House bills on second reading is May 12 and the bills languishing in the Calendars Committee waiting for a floor vote are stacking up. Let's start by looking at a few bills that need a timely House floor vote:

Warrants for cell-phone location data (HB 2263): In 2013, this legislation was set on the House Calendar too late to actually get a vote. It was later amended to another bill on a 126-4 vote, only to have the (since-unelected) senate author strip the provision out. This year, with the bill out of committee and already in Calendars, there's plenty of time for HB 2263 with its 96 joint and coauthors to receive a floor vote and I'm modestly sanguine it may get one before the clock runs out. (Special thanks to committee clerk Miguel Liscano and his team for cranking out the committee report in record time!) Heck, given the importance of the topic and widespread interest among members, IMO the bill deserves to be set on the Major State calendar. For more background, visit the Texas Electronic Privacy Coalition.

Asset forfeiture reform (HBs 472, 249, and 1975): These bills passed out of committee on Thursday, but they had the votes to get out of committee the day they were heard. Instead, Chairman Abel Herrero, as has been his pattern both sessions he's been chair, delayed most reform bills until the last minute, significantly jeopardizing their chances. Another, less controversial forfeiture bill, HB 530, was heard with the others but passed out of committee earlier and may yet make it to the floor. It authorizes forfeiture money to be used for scholarships for children of peace officers killed in the line of duty, and also includes some reporting requirements. That latter aspect means that portions of the other bills related to reporting could fit as amendments onto HB 530 on the House floor. On the Senate side, though, SB 95 remains stalled in committee, casting a shadow on these bills' prospects even if they make it out of the House. Still, alive in May is better than most bills filed at the Texas Legislature, so you never know.

Pretrial hearings (HB 452): This bill would require pretrial hearings to be held earlier in the process and makes so much practical sense from the standpoint of logistics and judicial economy that it almost hurts. Rep. Alonzo had done his homework and there was no opposition to the legislation, which was one of the first bills heard in the House Criminal Jurisprudence Committee. But the bill was delayed for more than a month before Chairman Herrero let it out of committee. This is a terrific bill and I'm still hopeful the Calendars Gods will smile upon it and send it to the House floor sooner than later. The fact that Mr. Alonzo is himself on the Calendars Committee gives me some small measure of hope that the bill may still make it to the floor in time.

Ad seg reform (HB 1084): The House Corrections Committee this week voted out legislation to require additional reporting about solitary confinement (known by the euphemism "administrative segregation" in Texas prisons) and a process for recommending reforms that would reduce its use. A small measure but better than nothing. This deserves a prompt floor vote.

Bulk records accuracy (HB 2700): This important but little-noticed bill passed unanimously this week out of the House Government Transparency and Operations Committee. It would require clerks and criminal justice agencies to redirect all requests for bulk criminal records, B misdemeanors and up, to the Department of Public Safety. That would save the locals money and provide for greater consistency, eliminating reports about cases which were dismissed or which never reached a denouement. Plus, since DPS has systems in place to respond to monthly bulk records requests, it won't cost them much, if anything, to perform the function. See a fact sheet (pdf) from my colleagues at the Texas Criminal Justice Coalition for more background.

Bond for blue warrants (HB 3329): This Sheriff's Association bill, which House Corrections voted out this week, would let county judges authorize bail for parolees picked up on technical violations. The years-long complaint is that parole officers use county jails for "jail therapy," keeping their charges locked up for a while when they have no intention of actually revoking them back to prison. Whether that's true on any broad scale, the meme is ubiquitous. Yet seemingly every year this bill dies right here: Awaiting a vote on the House floor. Maybe this year they'll finally get over the hump.

Syringe exchange, Tea Party style (HB 65): The version of Ruth McLendon's needle exchange bill that came out of the County Affairs Committee looked a lot different than when it went in. Changes necessary to appease Tea Party Republicans on the committee stripped out all public funding and forbade government from operating pilot syringe exchange operations, instead having counties and hospital districts authorize outside charities to perform the function. (As one conservative staffer said to me, the bill reduces government's role and "lets charities do what charities do best.") With those changes, the bill passed out of committee unanimously. I'm anxious to find out what the bill's reception will be like on the House floor, assuming the Calendars Committee will give it a vote. This is quite a different profile for the issue than the Lege has seen in past sessions.

Looking beyond bills in the House Calendars Committee, here are several bills your correspondent is watching which still have an excellent chance of passage and deserve full-throated support:

Updating theft value thresholds (SB 393): Value thresholds for theft in Texas haven't changed since 1993. So, because of inflation, it becomes a felony to steal less and less stuff every year. This bill, which has been passed by the full Senate, updates the theft thresholds to roughly match where they'd be if they tracked inflation. It would save money and significantly reduce incarceration pressures, especially at Texas state jails.

Good Samaritan/overdose prevention (HB 225): This bill would expand access to opiod antagonists and create a defense to prosecution for low-level drug crimes for people who call 911 and cooperate with police. The House bill passed the Senate Criminal Justice Committee unanimously and was recommended for the local and consent calendar. It appears on a fast track and could head to the governor very soon.

Diligent participation credits for state jail felonies (HB 1546): This House bill is scheduled for a hearing in the Senate Criminal Justice Committee on Tuesday, but its Senate companion already passed so there shouldn't be too much additional controversy. This bill would generate $81 million in savings in the next biennium and nearly a quarter-billion dollars in savings over five years by encouraging participation in programs to reduce recidivism. It should be a priority for the less-government, fiscal conservative types in the eastern chamber.

Innocence Commission (HB 48): It was a love-fest for Rep. McLendon on the House floor when the bill passed, but it received a chillier reception two years ago in the Senate. IMO this is the best version of the bill McLendon's ever presented. And with the Lege having enacted nearly all of the recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions, it's time for a fresh evaluation. It's not as though all the causes of false convictions have been extinguished.

Indigent representation and forensic writs (SB 1743): This legislation would expand the duties of the Office of Capital Writs to include "forensic" writs under Texas' new junk science writ passed last session. It came out of the Senate Criminal Justice Committee this week unanimously and has been placed on the intent calendar.

Reentry guide (SB 578): About 29,000 of the 70,000 or so inmates released from TDCJ each year do not qualify for the agency's Reentry and Integration Division programs. This senate bill, which has already passed out of the House Corrections Committee, "requires TDCJ to identify organizations that provide reentry and reintegration resources guides and to collaborate with those organizations to make those resource guides available to all inmates." It appears pretty likely at this point to pass.

Expanding access to DNA testing (SB 487): Rodney Ellis' bill pushing back against prosecutor recalcitrance over post-conviction DNA testing is over from the Senate and ready for the House Criminal Jurisprudence Committee to take it up. I don't know how many times we must perform this dance before prosecutors and the Court of Criminal Appeals get it through their heads that the Lege wants convicted felons to have access to potentially exonerating post-conviction DNA testing. Maybe this time will be the charm.

Grand jury reform (SB 135): This senate bill eliminating the pick-a-pal grand jury system is already out of committee in the House. Don't expect it to get a floor vote before the House is done with HBs, but I wouldn't be surprised if it's one of the first SBs heard thereafter.

Decriminalizing truancy (SB 106): That this is the first SB heard in the House Juvenile Justice and Family Matters Committee next week gives the sense this bill may be fast-tracked. 

Regulating body cameras (SB 158): This bill's referral to the House Select Committee on Emerging Law Enforcement Issues doesn't bode well for Sen. West's bill. Not only did that committee fail to approve companion body camera legislation, it hasn't passed much to speak of at all and none of what it has passed has received a floor vote. Though it cannot be proven, at the capitol the committee was widely considered a vehicle for killing legislation from the aftermath of the Ferguson episodes last year, and with some exceptions that perception has held. Maybe West's bill will be the case that disproves, or at least mitigates, those rumors.

As always, this list is not remotely comprehensive. It's just a first-cut look at what's still standing after a brutal week of last-ditch committee votes. Let me know what other bills readers are paying attention to in the comments.

Friday, May 01, 2015

'Let's sign up on and for things'

Last week at the Texas capitol, Grits witnessed a scene so funny I've retold it a dozen times since then and may as well share it with you, gentle readers.

I was near some of the electronic kiosks where people who want to sign up to testify, support, or oppose bills in the House must fill out forms on touch screens to record their registration. (The Senate still has you fill out paper cards; the House has gone electronic.) A couple of young gals walked up the corridor with the full tats, piercings, leather, dark makeup, spiked hair, 21st century punk ensemble one might expect to see at the club late Saturday night. So far, so good, it's their capitol, too.

One of them appeared to be leading around the other, giving a mini-tour, clearly having some knowledge of the place from a different layer of her life than she shared with her companion. Stopping at the kiosk, she explained their function then declared in an inspired tone, "Hey, let's sign up on and for things!" And so, they each manned a kiosk and began intently poking the touch screens, reading random captions to one another and giggling, registering "on" or "for" each one.

I've laughed on and off at that scene for more than a week. Makes me grin every time I think about it.

The genius of that ploy is that, by signing up "on" or "for" bills, you'd never piss anybody off. Nobody minds if you support their bill, whether randomly or not. And signing up "on" a bill but not testifying is random, but not harmful. Signing up "against" means the House Research Organization mentions the opposition in their floor report, people notice, maybe somebody calls you to ask why you don't like the bill (at the phone number you gave them to register).

I suppose one might derive a similar, if more cynical, nihilistic pleasure from signing up against random bills. I know plenty of folks who wish the Lege would go a biennium or two without passing any laws at all. Still, registering random "nos" would be a more disruptive intervention.

By contrast, registering "on" and "for" random bills is like harmless graffiti littering the legislative process. It may be a meaningless thing, but those two gals got a kick out of it and, for some reason, so did I.

Thursday, April 30, 2015

Legislative odds and ends

Here are a few odds and ends from the Texas Legislature to occupy readers' attention while your correspondent is focused elsewhere:
  • The Senate passed legislation ending municipal red-light programs. Here's a good overview of legislation, litigation and activism on the topic.
  • Legislation sitting in Calendars waiting for a House floor vote would require county jails using video visitation to also offer in-person visitation, as they did for generations prior.
  • As far as I can tell, nearly all medical marijuana testimony qualifies as "tearful."
  • See an editorial from the Fort Worth Star-Telegram in support of Rep. Ruth McLendon's Innocence Commission legislation, which is scheduled for a House floor this afternoon.
  • The Dallas Morning News runs down efforts to improve police transparency during the 84th Texas Legislature.
  • Another new crime involving drones is sitting in the Calendars Committee, where one hopes it will die. To my knowledge, nobody has been prosecuted yet under the criminal drone statute passed last session. (If you are aware of any drone prosecutions, please let us know in the comments.)
  • Sen. John Whitmire is raising questions about a juvenile corrections program run by the Texas Military Department.
  • See coverage of a press conference this morning calling for abolition of the Driver Responsibility surcharge.
  • Later this afternoon, I'll be at a meeting of the House Select Committee on Emerging Law Enforcement Issues to support a bill by Dwayne Bohac requiring law enforcement to get a warrant to use "Stingray" or "IMSI catcher" technology to track cell phones.

Bills to prevent, cause false convictions on House floor today

Ironically, there are bills on the Texas House floor calendar today (Thursday) aimed both at preventing false convictions and guaranteeing more of them.

RE: Preventing False Convictions. HB 48 by Ruth McLendon would create an Innocence Commission to analyze the causes of false convictions and suggest legislative reforms to prevent them in the future. The Lege once before created a short-term study commission but has enacted nearly all the reforms they suggested. Time for a fresh look. The House has supported this bipartisan idea in the past; the Senate is where it ran into trouble. See a Fort Worth Star-Telegram editorial in favor of the bill.

RE: Ensuring More False Convictions. HB 189 by Senfronia Thompson would remove the statute of limitations on all sexual assault cases, allowing, say, a date rape allegation from decades past to be sufficient to secure a conviction. Presently, old cases can be prosecuted when there is biological evidence to support the allegation. Thompson's bill would eliminate those fetters even for uncorroborated allegations going forward. (They can only change it for future cases, thankfully, not past ones.) The suggestion came from the Wendy Davis gubernatorial campaign, though Thompson now likes to downplay its origins and her staff is referring to the legislation as the Bill Cosby Act. Really it's the Wendy Davis Campaign Memorial Bad Idea.

Thompson's bill especially bugs me because she did not follow through on the compromise the House Criminal Jurisprudence Committee was told would be made in the committee substitute. The committee was informed the substitute would only expand the SOL for cases where biological evidence existed, simply adding an absent category of sexual assault not included in the language now, but requiring DNA to prosecute very old cases. But that's not the version voted out of committee, which simply removes the statute of limitations entirely.

The version of HB 189 headed to the floor is a goddawful bill that's virtually guaranteed to produce more false and questionable convictions in the future. Honestly, after witnessing dozens of men falsely convicted of rape streaming through the capitol over the years in support of Rep. McLendon's bill and other innocence reforms, Rep. Thompson should know better.

Regrettably, McLendon's bill can't pass quickly enough for a commission to recommend that Thompson's bill is a catastrophe from an innocence perspective. House members will have to figure it out on their own for this bad idea to be rejected. And it should be.

UPDATE: The House Research Organization report, released today, brings this addendum:
The author plans to offer a floor amendment that would change the statute of limitation only for certain sexual assault cases involving multiple victims. Under the planned amendment, there would be no statute of limitation if there were probable cause to believe the defendant repeatedly committed the same or similar offense against five or more victims.
That at least would limit the bill's scope, but it's still not an intellectually consistent policy. Better if HB 189 were simply voted down altogether.

NUTHER UPDATE: I didn't get to watch the floor debate but, as amended, the bill passed by a relatively narrow 88-46 vote. All "nay" votes were Republican.

Wednesday, April 29, 2015

Committee contemplates Driver Responsibility surcharge abolition

The Texas Senate Transportation Committee this morning held a belated hearing on SB 93 by Ellis which would abolish the Driver Responsibility surcharge. There was a good discussion (video here), a heartbreaking tale from a father in Tyler who went broke over surcharges and an inability to drive to work. (See more on his story.)

There was an especially poignant exchange between Sen. Bob Hall and one of the hospital representatives (who oppose abolition because they receive half the money). Hall declared sharply (see here), "What I just heard you tell me was that this bill was designed, was allowed to destroy people's lives in order to provide money from the state for your operation. And that's the same thing I read in the letters I see here from THA, and the TMA, and the others, that they are really only concerned about the money they get, they really don't care about what it does to people's lives." Ouch! That's gonna leave a mark! I've seldom heard a legislator confront the hospitals about about their own ethical position regarding this program. Bully for him! Hall, Huffines and Garcia wanted to vote the bill out today and the votes were clearly there, but the chair never brought it back up.

Nobody opposes hospital funding but the Lege has plenty of money to pay for it other ways, which was the subject of your correspondent's testimony in support of the bill on behalf of the Texas Criminal Justice Coalition. Last year, the surcharge brought in just shy of $145 million, or a $290 million per-biennium. Hospitals get 49.5% and 49.5% goes to the general revenue fund.

Texas is a large and wealthy state and in the scheme of budget politics, that's not an insurmountable sum. If the Senate reduced its border security proposal to the amount suggested by the House, I pointed out, they'd free up about that much money. Similarly, if the House reduced its tax cuts to Senate levels ($4.9 billion to $4.6 billion), that would free up enough money to replace the surcharge. In the scheme of budget items, it's big but not insurmountable. I don't think property owners will even notice tax relief as their valuations rise. But the hundreds of thousands of people impacted by surcharges will certainly notice.

To me the question becomes, is ending the surcharge a priority for the Legislature? So far, regrettably, despite an enthusiastic reception from this committee, the answer appears to be "no." Budgets speak louder than words and though it's a goal that's within their grasp, nobody with the power to accomplish the task prioritized the issue this session. As such, this bill serves more as placeholder and trial run for some more serious, future effort when there's a budget fix in play. That's the only way this misbegotten monster of a program will ever be abolished.

MORE: See coverage of the bill from the Austin Statesman.

Tuesday, April 28, 2015

Warrants-for-cell-phone-location data bill clears committee but time waning

With a half-dozen Texas Electronic Privacy Coalition volunteers gathered around, along with some staffers and a few interested members, Rep. Bryan Hughes' HB 2263 requiring the government to obtain warrants to access consumers' personal cell-phone location information passed out of committee yesterday at a sparsely attended desk meeting. Despite the fact that five committee members are coauthors, the bill was delayed uncomfortably long because of opposition from House Criminal Jurisprudence Committee Chairman Abel Herrero, who was the only "no" vote.

Interestingly, Chairman Herrero opposed this bill in committee last year, then later voted on the floor to amend it to another bill. But this session he opposed it again, even though both sessions he gave it an early hearing and then, after inexplicable delays, a vote. I can't understand what was going on. When a chairman opposes a bill, typically he'd just never give it a hearing, much less a vote, the way Senate State Affairs Chair Joan Huffman has done with Craig Estes' SB 942 in the upper chamber. ¿Quien sabe?

Regardless, firm and jovial support from Calendars Committee Chairman Todd Hunter at yesterday's meeting - and that fact that 12 of 15 Calendars Committee members are coauthors - makes Grits sanguine that HB 2263 might receive a floor vote in the lower chamber before time runs out, even though we're late in session. Senate deadlines are more flexible than in the House - they suspend the rules for everything on the eastern side of the capitol - so there's still plenty of time to pass the bill if the Calendars Committee will expedite giving the thing a vote.

RELATED: Though not yet posted, I'm told Duane Bohac's HB 3165 requiring warrants when police use Stingray devices will be set for a hearing Thursday in the House Select Committee on Emerging Law Enforcement Issues. However, a) it's late and b) that committee hasn't passed out a bill all year. Correction: A reader corrected me by pointing out that Emerging Issues voted for four bills last Thursday, but they've yet to be formally reported out yet, still in that nether region after a vote but before the committee report arrives at Calendars. My error. The fact remains, time is short. UPDATE: The hearing for HB 3165 has been posted.

No room at the inn: Proposed Lege reforms won't solve civil-commitment housing SNAFU

The crisis over Texas' dysfunctional sex offender civil commitment program deepened this week, reported the Houston Chronicle's Mike Ward and Anita Hassan (April 25), and, though legislation is in the works to modify the process, "Even if the reforms are approved, the housing crisis will remain." Until then:
Faced with a worsening housing shortage and no prospect of a quick solution, officials quietly have started putting together "home plans" for most of the state's 185 sex offenders deemed too dangerous to live unsupervised in society.

So critical is the housing problem, officials said, that a two-time child molester freed from prison on Friday had to be temporarily placed in an already-full Houston halfway house after nearly 100 nursing homes refused to take the man, who is confined to a wheelchair and is developmentally disabled. State officials said he would not return home because several of his immediate family members also are sex offenders.

"We have no places to put the ones that are coming out of prison, and we have no place for the 185 who are in halfway houses and have to be out in August," said Marsha McLane, executive director of the Office of Violent Sex Offender Management that oversees Texas' civil-commitment program for repeat sex predators. "I would say we have a crisis on our hands."

Should the agency eventually implement the "home plans," the men would be sent back to live in their communities under supervision, required to wear ankle monitors to track their movements 24 hours a day. Caseworkers would check in on them each day.
These "civil commitment" programs are floundering all over the country. Wrote Ward and Hassan:
Texas is one of several states with a civil commitment program in limbo. Minnesota lawmakers are scurrying to make reforms to that state's civil commitment program under the threat of a court ruling that legal experts say could place it under federal control or shutter it altogether.

Last fall, the Missouri Attorney General's Office halted civil commitment trials in the Show Me State for six months while it prepared to fight a class-action federal lawsuit claiming the program is unconstitutional. That trial is set for later this year.
Just this week headlines from Kansas and Missouri iterated that point:
Whitmire's bill passed the Senate but, according to the Chron, the bill "faces a less-than-certain future in the House, partly because of its estimated $13 million cost, roughly twice the current budget" and partly because of how late we are in session, though as a Senate bill already in the House the legislation is pretty far along in the scheme of things. (Right now it needs a committee referral.) The status quo - with the only judge in the state authorized to hear the cases routinely disqualified for bias - cannot stand. I'd be surprised if some version of the bill doesn't pass.

Regardless, everyone acknowledges that alone won't fix the housing problem nor stop NIMBYs from opposing and thwarting every possible, viable option. So then what?

RELATED: Analyzing legislation to reform Texas' sex-offender civil commitment program

Sunday, April 26, 2015

First TDCJ prisoners pass 30-year mark in solitary confinement

TDCJ ad-seg cell interior. Statesman/TDCJ.
Ugh. Eric Dexheimer at the Austin Statesman reports (April 25) that, on April 10, Texas witnessed the first of a wave of prisoners in solitary confinement who have passed the thirty-consecutive year mark.
A second Texas prisoner passed the 30-years-in-solitary mark last Monday. A third will reach it June 15, a fourth on Aug. 3. By the end of November, there will be 10 inmates with the distinction of having spent one score and 10 years in one room, with others not far behind; the state has more than 100 prisoners with at least 20 years in solitary confinement under their belts. ...

State records show Texas’ first 30-year solitary prisoner was 58 years old as of March 1. That means he has spent more than half his middle-aged life in one 60-square-foot room.

And while it would be correct to assume that many of those who have served the longest in the system’s most restrictive setting are also some of the state’s worst criminals, that’s not always the case. Two of the inmates who will reach the 30-year solitary mark this year are serving time for burglary.
Since 2006, the number of Texas prisoners kept in solitary (known within the bureaucracy as "ad seg" or "administrative segregation") declined 37 percent, from nearly 10,000 to around 6,000, or from 6 percent to 4 percent of the inmate population. By contrast, in Mississippi 1.4 percent of inmates are kept in solitary, Dexheimer reported.

There's not much moving legislatively on solitary issues during Texas' 84th session. Rep. Marisa Marquez, who's been a quiet, consistent champion on this topic, passed a bill out of committee which would require mental health assessments before TDCJ commits an inmate to ad seg, but it has yet to be scheduled for a floor vote. And the inestimable Sylvester Turner tacked on a rider to the House budget providing funds for mental health treatment for inmates leaving ad seg. Otherwise, most of what's been filed of significance hasn't left committee.

And so we wait, and they wait, and in the meantime the number of prisoners in ad seg more than 30 years and counting will continue to grow, with hundreds more released directly to the streets each year. If change occurs in the next biennium, it'll have to come from the agency or possibly litigation.

BTW, for those interested in the issue, the blog Solitary Watch should be required reading. See also prior, related Grits posts:

News of TX overdose undercount bolsters 'Good Samaritan' bill

As the Texas Senate Criminal Justice Committee prepares to hear overdose prevention legislation (HB 225 by Guillen/Watson) on Tuesday, news comes that the state has dramatically and systematically undercounted overdose deaths in recent years.

The Houston Chronicle's Lise Olsen and the Austin Statesman's Mary Ann Roser this week (April 24) coauthored an important and impressive feature documenting how Texas dramatically undercounts overdose deaths, particularly those stemming from prescription opiates. "Overdose deaths from all drugs have skyrocketed nationwide in the last decade, outpacing even motor vehicle accident fatalities, according to the Centers for Disease Control and Prevention," they reported. But prescription opiods account for the largest source of the increase.
Last summer, Dr. David Lakey, then the Texas Department of State Health Services commissioner, told a Senate committee studying the problem that Texas has one of the nation's lowest prescription drug fatality rates and that his data showed deaths had peaked in 2006. But Lakey was referring only to deaths involving certain painkillers, not all prescription drugs. His report did not include information from medical examiners, who use drug screens to identify many more overdoses, according to a joint investigation by the Houston Chronicle and the Austin American-Statesman.

Only 622 deaths reported across Texas in 2013 were specifically blamed on opioids - mostly painkillers, based on death certificate data cited by Lakey's department.

But 798 prescription-drug related deaths were recorded by local medical examiners that year in just 17 of the state's 254 counties, the Chronicle and Statesman found. The newspapers found that medical examiner reports in Harris, Travis, Dallas, Tarrant and El Paso counties, as well as some smaller counties, attribute many more deaths to prescription drug overdoses than the state has counted in opioid overdoses.
The reporters determined that, "the state's method of tracking the problem undercounts deaths in every major county across Texas." E.g.:
In Travis County, which includes Austin, the state reported 17 deaths from prescription painkillers in its preliminary count of death certificates for 2013, but the administrator of the county's Medical Examiner's Office hand-counted 114 deaths involving all prescription drugs that year.

In Tarrant County, which includes Fort Worth, the medical examiner's office recorded 44 deaths in 2013 involving specific prescription drugs and another 57 fatalities from "mixed drugs." The state's count was 24 opioid overdoses.
Counties where justices of the peace determine cause of death instead of a medical examiner exacerbate the undercount. Some of that is because JPs are unqualified to make such a determination, while there are also economic incentives to undercount: "Many justices of the peace hail from counties with tight budgets, so there can be pressure to reduce the number of cases they send to a medical examiner for an autopsy."

The article mentioned legislation by Sen. Charles Schwertner "to better monitor patients who may be 'doctor shopping' for drugs." That bill passed the senate two weeks ago but has yet to be referred to committee in the House. But they failed to mention HB 225 by Guillen/Watson, which will be one of the first House bills taken up by the Senate Criminal Justice Committee when they hear the bill on Tuesday. That legislation would authorize use of the opiod antagonist naloxone (an antidote with no known side effects which is highly effective for heroin and many prescription pain medications) by first responders and adults with a prescription. It would also create a "Good Samaritan" provision - a defense to prosecution for people who call 911 in response to an overdose. (N.b., your correspondent supported HB 225 in the House on behalf of the Texas Criminal Justice Coalition.)

This joint feature from the Chronicle and Statesman makes the arguments for such overdose prevention legislation much more immediate and poignant. Since they didn't mention Guillen's Good Samaritan bill, I doubt the story was timed to benefit that legislation. But it's certainly a timely and helpful coincidence. For more background on HB 225, see recent coverage from NPR, prior Grits coverage and the House Research Organization report (pdf, p. 21) on the bill. MORE: See a brand new, detailed (88 page) fact sheet on precisely these topics from the Network for Public Health Law.

Texas Voices standing against sex offender residency restrictions

Texas Voices, a group made up of families of people on Texas' sex offender registry and others who support reform of Texas sex offender statutes, has been quite active this session, and it's a good thing.

As Grits told their indefatigable leader Mary Sue Molnar when the organization began, every other criminal justice reform group and activist in the state, including me, will inevitably sell them out at the Legislature. When someone says of a proposal, "well, we can do that but we have to exclude sex offenders," reform advocates routinely will jump at the deal without a second thought. And in general, rightly so. One cannot succeed in legislative politics by making the perfect the enemy of the good.

And yet, what that means as a practical matter is that nobody will consistently, much less passionately stand up for the interests of people on the sex offender registry except their own family members. Not their lawyers, not the ACLU nor any other advocacy group, no legislator nor state official, and (if we're honest) not even this blog ... nobody. If Texas Voices didn't exist, a lot of bad, barely vetted bills would slide through the process without a whiff of opposition, not because they weren't recognized as bad but because those in a position to vet them made a political calculation that opposing them would harm other interests. I'm not particularly proud that that's true - it doesn't speak very well of the criminal justice reform movement in this state - but it's the way it is.

Texas Voices does not suffer from such conflicts. As their name implies, they give voice to the truly voiceless. And last week those voices were at the capitol in force to oppose draconian new sex offender residency restrictions in HB 1064 by Sheffield and HB 1872 by Murphy. I asked Mary Sue to describe the group's efforts to oppose these bad bills and she replied via email thusly:
Both HB 1064 by Sheffield and HB 1872 by Murphy are residency restriction bills. 1064 would create a statewide residency and child safe zone restriction. 1872 would allow General Law cities to adopt their own restrictions up to 1000 feet.  Both bills are based on the myth – research does not support the theory that children are likely to be victimized by strangers at places where children gather than at other places - and - there is no correlation between residency restrictions and reducing sex offenses or improving public safety. Additionally, over 93% of sex offenses are committed by someone who is not on the registry.

To sum it all up, there is no evidence, there are no statistics, there are no studies, and there are no reports to support the theory that residency restrictions or child safe zones improve public safety.  NONE.  In fact, research has shown that these types of restrictions do more harm than good.

We are still trying to kill both of these bills!
HB1064: The hearing for 1064 went really well.  Approximately 50 Texas Voices members attended, 7 testified ‘against’ and 2 law enforcement officers testified ‘for’ (one of which admitted to problems with the bill as written). The final witness registration tally was 42 people AGAINST HB1064 and 1 person FOR.  Here is the link to the video - Scroll to 1:24:28 to watch and be sure to watch the end at about 2:05:54.  We emptied out the room when the bill was over.  It was awesome to have so many of our members fill the room.

HB1872: I think about 4-5 people testified against and a few were for the bill. Rep. Schaefer and Rep. Elkins asked some great questions and made good points about the unintended consequences of these types of bills. Here's the link to the video. Scroll to about 3:49.
See more from Texas Voices on the residiency restriction issue.

Saturday, April 25, 2015

At the three quarters mark: What criminal justice bills appear likely to pass?

With just a little more than a month left in the 84th Texas Legislature, let's survey the landscape regarding significant criminal justice bills which appear likely to pass. For purposes of this post, we'll define "likely to pass" as bills which have already been voted out by one chamber or the other. We'll define "significant" as "stuff Grits cares about."

First on the likely-to-pass list would have to be three House bills up Tuesday in Chairman John Whitmire's Senate Criminal Justice Committee, which are among the first HBs I've seen posted for a hearing in the Senate on any topic Grits covers. (Even HB 11 on border security has languished, with the senate passing SB 3 instead of substituting in the House bill.)

HB 593 requires police officers to undergo canine encounter training. HB 225 would help prevent overdoses by expanding use of naloxone, an opiod antagonist (an antidote with no known side effects which is highly effective for heroin and many prescription pain medications) by first responders and adults with a prescription, and create a defense to prosecution for people who call 911 in response to an overdose. (Your correspondent supported this bill in the House.)

The last HB up in Senate Criminal Justice Tuesday is HB 10, a bipartisan anti-human trafficking bill. There's one piece in HB 10 (Sec. 13) which Grits opposes because it makes uncorroborated informant testimony sufficient to obtain a human trafficking conviction - a recipe for false convictions if there ever was one. But nobody seemed to care about that on the House side and I'll be (happily) surprised if the Senate alters it. After the provision causes a few false convictions, maybe a few sessions hence they'll revisit it. See Grits' discussion of the same provision in a stand-alone bill.

The next category of bills with a high likelihood of passage would have to be "anything authored by John Whitmire." Among his bills which have cleared the Senate are legislation decriminalizing truancy and another bill adjusting procedures for criminal charges filed against misbehaving kids in school. Another Whitmire bill now in the House would eliminate the pick a pal grand jury system. His bill reforming the civil commitment system passed the senate (see MSM coverage), as did his bill downsizing the juvenile justice system. That is a successful session by any measure for the Dean of the Senate, and there are five weeks to go.

Sen. Joan Huffman's legislation reinstating the offense of online solicitation of a minor and criminalizing computer terms of service violations both passed the upper chamber, though on the latter bill the House passed its own version instead of taking up her version.

Sen. Royce West's body camera legislation passed the Senate, as did Rodney Ellis' bill clarifying access to post-conviction DNA testing in favor of defendants. Sen. Jose Rodriguez's bill requiring appointment of counsel for habeas writs under certain circumstances has cleared the Senate, and the companion is already out of committee, so it looks like it's ready to move. Sen. Juan Hinojosa's SB 1287 expanding licensing and regulation of forensic analysts through the Forensic Science Commission passed out of the senate, as did Senators Hinojosa's and Rodriguez's bill improving reentry resources provided to inmates leaving TDCJ. The companion to the latter bill was already approved by the House Corrections Committee.

The House has been less prolific passing criminal justice bills. Grits already mentioned HB 1546 by Allen giving diligent participation credits for state jail felons that would save the state hundreds of millions of dollars. The Senate version is already out of committee and on the intent calendar.

Otherwise, scarce little that passed out of the House Criminal Jurisprudence Committee has actually received a floor vote, and quite a few interesting bills with plenty of support to get out of committee have not been given votes by the chair (e.g., HB 507 on civil penalties for pot, asset forfeiture legislation). That's a better track record, though, than the Select Committee on Emerging Law Enforcement Issues, which hasn't voted out a single bill all session (which most observers believed was its purpose all along).

This list is not remotely comprehensive. Plenty of other bills still have a chance if they're already out of committee, or even some that get voted out of committee next week, though that's an even longer shot. After that, committees will mostly focus on the other chambers' bills, or bills where the chair promised a hearing but which nobody thinks can pass.

Thursday, April 23, 2015

Roundup: Court costs, innocence, reentry, and faulty forensics

There's so much happening at the Legislature so quickly right now, good and bad, that it's hardly worth writing about all the moving targets. Perhaps over the weekend there will be time for a more thorough review of where we stand. Meanwhile, here are several non-legislative items which have been clogging up my browser tabs and would merit independent posts if your correspondent didn't have so much going on.

FBI admits to overstated hair analyses
Lots of national press this week on the FBI's overstated forensic testimony involving hair and fiber matches. See here, here, here, here, and here. The Texas Forensic Science Commission, readers will recall, is performing their own review of Texas cases. All of our hair and fiber examiners were trained by the feds and use the same techniques. RELATED: Since seemingly any and every topic these days warrants a clickbait list, see this item from Austin's own Jordan Smith at The Intercept, "Five disturbing things you didn't know about forensic 'science'."

A rare look at court costs
The Austin Monitor's Tyler Whitson took a rare, in-depth look at court costs litigation by former GOP Court of Criminal Appeals candidate Jani Maselli Wood, issues with which Grits readers are familiar but which are admirably laid out in Whitson's article. Related legislation to require courts to produce a bill of costs before defendants must pay them passed out of committee and is waiting on the Calendars Committee to give it a floor vote.

Feds investigating TX immigrant detention conditions
A federal report launched new allegations against an immigration detention center in Pecos, which experienced less-well publicized riots prior to the recent one that closed a unit in Willacy County.

SA4 seek innocence declaration
See coverage of the San Antonio Four's habeas writ seeking actual-innocence based exoneration.

Reentry stories
NPR's John Burnett examined the circumstances surrounding the 21,000+ TDCJ inmates released from Huntsville every year.

Tuesday, April 21, 2015

Slate of forfeiture reform bills heard, but not much moving and time is short

Quite an array of bills on asset forfeiture reform have been featured lately on the western side of the capitol, if not so much in the press. Rep. David Simpson's legislation to abolish civil forfeiture entirely was heard in House State Affairs last week. And several notable bills on the topic were on the agenda in the Texas House Criminal Jurisprudence Committee last night, primarily pressed by advocates from the conservative Institute for Justice and the Texas Public Policy Foundation. (Your correspondent supported these measures on behalf of the Texas Criminal Justice Coalition.)

Of the bills reviewed last night by Chairman Abel Herrero's committee, Rep. Jason Villaba's HB 2116 drew perhaps the most animated law enforcement opposition. That bill would restrict what police and prosecutors could spend money on to items listed in the code and require additional, quarterly reporting of expenditures posted on the agency's website. He's aiming to confront the situation former Dallas DA Craig Watkins created when he used forfeiture funds to settle a lawsuit stemming from a traffic accident he caused. Prosecutors do not want the public to have access to that information, objecting to additional reporting requirements. But the vehemence with which they objected to seemingly banal language limiting expenditures to articulated categories makes one think there must be a lot of expenditures that don't fit within those strictures. Else, why all the weeping and gnashing of teeth over holding them accountable to the text of the law?

There were several other good forfeiture reform bills on the Criminal Jurisprudence roster. Rep. Matt Schaefer's HB 1975 would put the primary burden on prosecutors to disprove an innocent owner claim. Rep. Jeff Leach's HB 249 and Phil Stephenson's HB 472 would install additional reporting about seizures and whether they stemmed from criminal convictions. And Rep. Terry Canales' HB 1012 would change the standard by which prosecutors must prove assets are related to criminality from the current "preponderance of the evidence" to "clear and convincing." (This is a companion to Chuy Hinojosa's SB 95, which is presently stalled in the Senate Criminal Justice Committee; see prior Grits coverage of that bill.)

With this much bipartisan interest, one would think forfeiture reform might stand a chance this session. But time is short - less than six weeks remain in a 20 week session - and no forfeiture reform bill has yet been voted out of committee in either chamber. Further, the Criminal Jurisprudence Committee, while being referred the most bills of any standing House committee, has so far voted out fewer than 20, putting it on a much slower pace than its peers. So unless Chairman Herrero and Co. act on these with uncharacteristic alacrity, there may not be time for anything but a floor amendment strategy. And even then, with so few bills moving on the topic anywhere in the process, there aren't many captions floating around to be amended.

Still, there have been lots of good ideas proffered on forfeiture this session and good groundwork laid for the issue going forward. None of these bills were filed in 2013 and often it takes two or three sessions for new suggestions to percolate their way through the process.

At a minimum, there's clearly enough interest in the House that the Criminal Jurisprudence Committee deserves an Interim Charge to study these suggestions and other potential forfeiture reforms. Perhaps with a little more interim prep and study, these ideas could enter the 85th Texas Legislature with more momentum or even support from the leadership. This year, the effort's been more of  a bottom-up affair.

Monday, April 20, 2015

Waiting for Mr. Goodhart

The Court of Criminal Appeals in November overturned Alfred Brown's capital murder conviction for allegedly shooting a Houston police officer "after the Harris County District Attorney's Office acknowledged it had withheld material evidence that supported his alibi," reported Lisa Falkenberg at the Houston Chronicle. Since then, Brown has waited in jail while the DA's office ponders whether to attempt to retry him. Wrote the columnist:
Much has happened since then: a transcript showing a grand jury threatening Brown's alibi witness into changing her story, and news that the foreman of the grand jury was himself a cop - a longtime colleague of the Houston police officer Brown was accused of murdering - set off a debate about how grand jurors are selected in Texas and calls for reform. Last month, a reform bill passed unanimously out of the Texas Senate.
Meanwhile, however, Brown is "is still there. He is still waiting." Indeed, wrote Falkenberg, "Five months after the district attorney agreed to review Brown's case, her office won't say what is taking so long."

Normally, regrettably, waiting for justice is not news. But sometimes - when reporters must wait while the principals in their stories wait for justice - they dig around long enough to generate news independently, which is what's happened in this latest story.

In this instance, no news was not good news for the prosecutor in Brown's case, Craig Goodhart, who fell more directly under Falkenberg's scrutiny as a result of this unexplained delay. For good measure, she littered her column with examples of past questionable episodes involving Goodhart, who perhaps understandably would not return her phone calls. For example:
In the 1997 capital murder trial of Joe Durrett, who was accused of killing his ex-wife and her sister in Pasadena, [defense attorney Katherine] Scardino presented a credible witness who accused Goodhart of trying to manipulate medical examiner findings. In her closing arguments, Scardino told jurors that the prosecution, which had earlier included Goodhart, "has treated you like idiots." With that, Scardino won a rare acquittal in a death penalty case.
In another murder trial that same year, Goodhart was demoted temporarily after slapping a defendant on the back so hard during his closing arguments that the judge declared a mistrial.
More recently, in February, the Texas Court of Criminal Appeals cleared the way for a hearing into allegations that Harris County prosecutors coerced and blackmailed witnesses to convict Linda Carty, a British national on death row since 2002. ...
As the Chronicle's Lise Olsen reported, most of the allegations of prosecutor misconduct were leveled at Assistant District Attorney Connie Spence, but a key eyewitness in the Carty case also accused Goodhart of threats, intimidation, and coaching his testimony.
"It didn't seem to matter what my eyes had actually seen," the witness, Christopher Robinson, wrote in an affidavit. "They were always pushing me to change things around and add more."
The district attorney's office has not yet responded to the February ruling, but officials have said a county probe is ongoing.
Falkenberg quoted Scardino, who is now representing Alfred Brown, in the article's denouement:
"They don't have any evidence on Alfred Brown," Scardino says. She believes another suspect, already identified, is likely the real killer. Prosecutors may still feel very differently about that.

But Anderson's office owes us an answer, and soon. Brown deserves justice. It's been a decade. He's still waiting.
MORE: A commenter brings word of today's announcement that Falkenberg won a Pulitzer Prize for her columns about Brown's case. Congratulations on a well-deserved honor.

Bill to reduce recidivism, increase state-jail felon program participation would save state $227.7 million

The Texas House last week approved a nice little bill by Rep. Alma Allen, HB 1546, which would save the state $227.7 million over the next five years by reducing incarceration for state jail felons by a few months if they participate in programming, according the Legislative Budget Board. The savings in the first biennium would be $81 million. The proposed tweak to the law would have the state corrections agency apply "diligent participation credits" toward reduction of inmates' state jail felony sentences - up to 20 percent of the sentence - which are otherwise served day for day without possibility of parole or early release. (My colleague Sarah Pahl at the Texas Criminal Justice Coalition has been working hard on this bill.)

The bill passed 141-0 (with a couple of members recording opposition in the journal after the fact) and no opposition in committee. Its companion legislation, SB 589 by Rodriguez/Hinojosa, has already passed out of the Senate Criminal Justice Committee and is on the Intent Calendar. So the Senate could finally approve this bill pretty quickly if the votes are there.

Presently, it's possible but unlikely for state jail inmates to receive sentence reductions based on participation in educational or treatment programs. TDCJ sends judges information about program participation months after the case is over when the defendant's sentence is almost complete, creating a cumbersome and time consuming extra process for the courts for this class of low-level, mostly non-violent offenders. "The court then has to receive and process the request, make a decision about awarding credit to the inmate, and return the report to TDCJ," explained the House Research Organization analysis. Presently, judges do not reply to TDCJ in more than half of cases and in others the decision comes to late to result in a meaningful reduction in the sentence. In other words, the process now is basically dysfunctional.

State jail felons have a higher recidivism rate than other inmates leaving TDCJ and also are not under supervision when they leave, having served a day-for-day sentence. So anything which can be done to reduce recidivism for this category of offenders would be welcome; presently the state has few tools to influence their behavior beyond locking them up for a short time. A few months reduction in state jail felony sentences - already measured in months, not years - is a significant incentive for inmates to participate in programming which reduces recidivism.

These folks will soon be released regardless after spending 6-24 months (max) incarcerated in a Texas state jail felony facility. So the question isn't whether we should "keep them locked up." They'll be released soon enough, either way. The question is whether they'll have done anything productive with their time while they're inside, which this bill incentivizes and prioritizes.

The Senate this year has been all about spending caps but we've heard barely a peep from them about budget cuts. Here's a chance to save nearly a quarter billion dollars over the next five years while reducing both incarceration and recidivism among nonviolent offenders. What's not to like?

Friday, April 17, 2015

Texas House moving harm reduction measures

There were a couple of positive developments on the harm reduction front in the Texas House this week involving bills your correspondent supported in committee:

Good Samaritan bill moves to Senate
On Tuesday, the lower chamber approved HB 225 creating a defense to prosecution when someone calls 911 in response to an overdose, stays at the scene, and cooperates with police - so called "Good Samaritan" legislation. It passed by a 140-4 margin. This is an important sleeper issue, as "overdosing on medications and illicit drugs has been a bigger killer in the U.S. than car crashes or gun deaths at more than 120 per day," according to coverage of the bill from Texas Public Radio. The legislation also authorizes first responders and folks with prescriptions to use naloxone, an opiod antagonist that can save lives during emergency situations but which itself is non-addictive and causes no known side effects. The bill is now in the Senate where its companion was referred to the Criminal Justice Committee.

Unanimous committee support for needle exchange bill
After some initial confusion and a motion to reconsider, CSHB 65 authorizing privately funded and operated needle exchange pilots in several counties passed out of the County Affairs Committee yesterday on a 9-0 vote. See supportive coverage of the bill out of San Antonio and an earlier Grits analysis. HB 65 had seemingly stalled before conservatives threw their support behind language which eliminated all public funding and empowered counties and hospital districts only to authorize other organizations to operate needle exchanges - county government won't operate the programs. Volunteers with authorized needle exchanges will be exempt from prosecution under the paraphernalia laws and the bill includes some reporting requirements for participating organizations on the back end. Indiana of all places, recently suspended that state's ban on needle exchanges in response to a public health crisis.

DPS may promote surcharge amnesty by this fall, and other stories

Here are a few items which merit Grits readers' attention even if I haven't had time to adumbrate them in individual blog posts:
  • The Dallas District Attorney has released a list of 192 officers who the DA's office won't sponsor as witnesses because of past mendacity or other credibility problems. 
  • An error by city utility employees left prison units in Amarillo without water pressure, forcing them to bring in tanker trucks for drinking water.
  • The Texas Senate this week approved a bill by Sen. John Whitmire eliminating criminal penalties for truancy.
  • The Senate Transportation Committee voted to eliminate red light cameras.
  • Bill Martin of the Baker Institute at Rice University says the political winds are shifting in Texas on medical marijuana. See also an account of Rep. David Simpson defending his legalize-it bill in his home district, and an article about GOP support for Rep. Joe Moody's bill creating civil penalties for low-level pot possession.
  • Here's a religious view on why solitary confinement reform is necessary.
  • Setting aside for a moment the vexed issue of police shootings, here's an interesting discussion of the appropriate burden police departments should bear in civil court when officers inadvertently harm someone on the job under more mundane circumstances.
  • Read a compelling and troublesome reentry story out of Dallas.
  • Singer John Legend was in town Thursday to visit with legislators and hold a press conference on criminal justice reform with my employers at the Texas Criminal Justice Coalition. See coverage here, here, here, and here, for example.
  • Regrettably, Grits couldn't attend the press conference with Mr. Legend, spending my afternoon instead in a meeting involving indigence and the Driver Responsibility surcharge. Nothing certain yet, but DPS told us they're now considering offering another Amnesty period for the surcharge as soon as this fall. Not long ago, they were telling the Lege they had no plans for another Amnesty, so that's welcome news.

Thursday, April 16, 2015

Revenge porn, online solicitation bills clear Senate despite First Amendment problems

The Texas Legislature seems intent on keeping Houston attorney Mark Bennett busy beating down unconstitutional statutes in an ongoing game of whack-a-mole. A pair of bills have passed the Texas Senate and been sent to the House which, if passed, will likely immediately fall within Bennett's crosshairs (or some other attorney challenging on First Amendment grounds).

Sen. Joan Huffman's SB 344 attempts to reinstate Texas' online solicitation of a minor statute, which the Court of Criminal Appeals unanimously struck down in 2013. But Huffman didn't adopt all the changes Bennett insists are necessary to prevent it from being attacked again on First Amendment grounds. Bennett has praised Huffman's bill for being "much closer to constitutional than the statute as it exists now." But he also laid out in the same post exactly how he'll challenge the statute as proposed and what changes would be necessary to make it constitutional, so if the House doesn't revise it they'll have nobody but themselves to blame. The companion bill, HB 861 by Tony Dale, has cleared committee and is waiting for the Calendars Committee to set it for a floor vote, at which time Huffman's bill will be substituted in and finally passed.

Meanwhile, Sen. Sylvia Garcia's "revenge porn" bill, SB 1135, also cleared the Senate this week, though its companions are not so far along. The Dallas Morning News coverage referenced none of the constitutional concerns, but the bill in its present form almost certainly won't pass First Amendment muster. Analyzing the bill earlier this week, Bennett explained that:
Since the speech restricted does not fall into a recognized category of unprotected speech, under current Supreme Court (and Court of Criminal Appeals) jurisprudence this statute does not pass First Amendment muster. Proponents of this law would have to convince the Supreme Court to recognize a new category of historically unprotected speech that covers most of the speech forbidden by the statute. That’s long odds.
The bills to reinstate the improper photography statute, by contrast, don't appear to be moving.

Observing the Lege pass laws one can already tell are unconstitutional is like watching a slow moving train wreck. You can see a crash is coming well in advance but it seemingly can't be stopped. They pass these laws now then a couple of years later the courts declare them unconstitutional and the state has to figure out what to do with everybody who was convicted under invalid statutes. (Rep. Alonzo's bill on appointment of habeas counsel aims to address that topic.) We've already seen this movie and Denzel Washington doesn't show up at the end to save the train from derailment. It just flies off the tracks.

Wednesday, April 15, 2015

Lege poised to criminalize violations of internet terms of service contracts

I don't know if this will be the first new crime created by the Texas Legislature this session (I doubt it), but it's surely the most far reaching yet: SB 345 by Huffman, the companion to which was criticized last month by Grits, is poised to pass the Texas Legislature this week and head to the governor's desk. HB 896, its companion, has been placed on Thursday's House General State calendar. But SB 345 is over from the Senate, so it will be substituted in and finally passed if the bill is not defeated on the House floor.

The portion of the bill I don't like would criminalize violations of terms of service contracts between internet service providers and their customers, making law enforcement the enforcer of contracts for wifi the way they've problematically been in the past for payday lenders and check cashing firms. The House committee substitute altered the language slightly but it still contains the problematic provision - (b-1)(2)(B)(ii), see the text - criminalizing violations of "a contractual agreement." [N.b., the fix is either to strike (b-1)(2)(B)(ii) or change the "or" to an "and" in the previous (i).]

Using criminal law to enforce private consumer contracts amounts to corporate welfare and terrible public policy. If the Texas House doesn't amend or reject this bill - and so far it seems to be sailing through the process - then Gov. Greg Abbott should veto it.

See prior Grits' analysis of this bad idea.

UPDATE: Freshman Rep. Matt Rinaldi amended the bill on the floor to make contract violations a crime only if they involve an effort "to defraud or harm another or to alter, damage, or delete property," which will at least keep this law from being used against people logging onto somebody else's wifi.  Grits doesn't oppose laws to combat hacking, I just don't want to authorize cops to become generalized enforcers of consumer contracts. ALSO: Grits had expected the House to substitute in the companion, which was already over from the Senate, but instead they just passed HB 896, with the SB still lingering in House committee. So this bill isn't headed to the governor yet, even though versions of it have now passed both chambers.

Habeas matters: Appointing counsel, codifying Robbins

The Texas House Criminal Jurisprudence Committee today will hear a pair of bills related to habeas corpus writs that relate to topics frequently covered on this blog during the years I worked for the Innocence Project of Texas:

Habeas writs and appointed counsel
HB 1346 by Alonzo provides that indigent defendants may be appointed counsel to file a habeas corpus writ when prosecutors agree in court that a defendant who's already been sentenced "is not guilty, is guilty of only a lesser offense, or was convicted or sentenced under a law that has been found unconstitutional by the court of criminal appeals or the United States Supreme Court."

This would reach cases like the folks put in limbo when Texas courts overturned statutes on improper photography and online solicitation of a minor, but not necessarily episodes like the Jonathon Salvador fiasco, where it's still not clear everyone entitled to relief was appointed an attorney or even notified about crime-lab misconduct that may have affected their case.

This bill doesn't go nearly as far as the statewide public defender for habeas writs suggested last year by Rick Perry's former general counsel. Indeed, it's a far cry, even, from suggestions in the "white paper" produced by the Court of Criminal Appeals Criminal Justice Integrity Unit and the Forensic Science Commission. But at least the legislation acknowledges a problem and takes tentative first steps to address it. Companion legislation, SB 662 by Rodriguez, was heard yesterday and voted favorably out of the Senate Criminal Justice Committee.

Junk science writ includes bad scientists, not just bad science
HB 3724 by Herrero is an excellent bill which would codify the results of Ex Parte Robbins interpreting Texas' new junk science writ, clarifying the debate over legislative intent at the heart of the 5-4 judicial split in that pivotal case.

In Robbins, the court authorized an inclusive reading of the statute to say the defendant was entitled to relief when the state's expert later corrected her opinion after the conviction to concur with the defense. The majority decided the statute was necessary (and was intended) not just to cover bad science but also bad scientists.

Four members of the Court of Criminal Appeals would only have allowed use of the junk science writ in areas like arson where the entire field has advanced and previously false propositions were testified to as truth in court by investigators because of their training. The majority, though, cited legislative history to say the writ should also cover cases where a forensic expert was simply wrong and later self-corrected.

Having some personal knowledge on the question, Grits agrees that the legislative history supports the majority ruling in Robbins. But the margin supporting that interpretation on the court is razor thin and almost certainly subject to future attack without legislative clarification. (Three of the five votes in the majority left the bench in January.) So it makes a lot of sense for Chairman Herrero to go ahead and say once and for all exactly what the Legislature meant so the courts don't misinterpret later.

This sort of back and forth between the Legislature and the courts has been repeatedly necessary over the last decade and a half in Texas post-conviction law. You saw it in statutes authorizing DNA testing. The CCA said DNA couldn't exonerate someone. The Lege said "yes it can, do the tests." Then prosecutors and courts would find excuses not to grant testing. So the Lege came back to strengthen the law until, eventually, prosecutors had few grounds left available to oppose DNA testing under Ch. 64 of the Code of Criminal Procedure.

Herrero's bill would similarly clarify the statute so this is no longer a point of contention for the court, preventing tremendous uncertainty and innumerable future appellate controversies. From the perspective of someone wrongfully convicted, whether they were incarcerated because of "bad science" or merely a "bad scientist" is a distinction without a difference.

Tuesday, April 14, 2015

Begging for crumbs on the Driver Responsibility surcharge

Here's what's bugging Grits today: This morning I got up first thing to testify on behalf of the Texas Criminal Justice Coalition in favor of a good bill tweaking procedures for indigent defendants to have their Driver Responsibility surcharges waived by the courts. The committee was receptive and Chairman Larry Phillips even indicated he wanted to pursue further relief to the extent it might fit within the caption of the bill, suggesting a stakeholders meeting that he said he'd attend. Despite the chairman's much-appreciated interest, however, it's hard to avoid the feeling that we're begging for crumbs and being roundly ignored on the issue by the folks who matter most: Legislative budget writers.

I know Judge Edna Staudt feels the same way. The Williamson County JP who's been one of the fiercest opponents of the surcharge testified "on" rather than "for" the reform bill because she didn't think it did enough. Personally, I'm less inclined to allow the perfect to become the enemy of the good. But I understand the impulse to reject less-than-half-a-loaf measures.

Everyone who cares has been told at the Texas Legislature that abolition of the Driver Responsibility surcharge is off the table in 2015 because leadership "can't find the money." To get rid of the program, they'd have to replace the money that goes to the general fund as well as cover the amount that goes to trauma hospitals. But even though there's lots of extra money available, nobody wants to spend it on this.

For the next biennium it would take up to $230 million to abolish the surcharge entirely, if you accept (and we must) this brand of budgetary thinking. For context, keep in mind that $230 million is just a tad more than 1/10 of one percent of the $209.8 billion all-funds state budget.

By contrast, we've been told to expect $4.6 billion in tax cuts, or twenty times what it would take to eliminate the Driver Responsibility Program. In other words, the Lege could eliminate the surcharge entirely and still give 95% of the tax cuts being proposed! Further, as R.G. Ratcliffe reported, "The proposed House budget leaves $2 billion unspent from general revenue and $11.1 billion from the Rainy Day Fund. The budget also includes $4 billion in retained dedicated funds that can be used to certify the budget as balanced." And that doesn't even get to hundreds of millions in new border security spending.

Combining unspent funds, "rainy day" funds, and unspent "dedicated" funds, the House budget essentially leaves $17 billion in tax dollars lying around in the couch cushions, with the Senate budget differing more in details than totals.

So what are we to believe when we see those numbers and yet legislators simultaneously plead poverty when it comes to abolishing the surcharge? "We couldn't find the money." It's just not credible. Yes, $230 million is a lot of cash. But Texas is a large, wealthy state with an enormous budget surplus. We can afford to pay for trauma hospitals in other ways.

If legislators cared as much about the 2 million Texans who've lost their licenses under the surcharge as they do the beneficiaries of the tax cuts, this program would already be history. It's a question of values and priorities, at this point, not really a lack of resources.

RELATED: Bills chip away at Driver Responsibility surcharge catastrophe.

UPDATE: The companion legislation to Sylvester Turner bill I was testifying for, SB 1056 by Hinojosa, passed out of the Senate Transportation Committee on Monday and has been placed on Thursday's Intent Calendar.