Sunday, June 24, 2018

TX Dem platform prioritizes #cjreform

Having detailed #cjreform planks added to the Texas state GOP platform, let's now turn to the Democratic platform approved this week in Fort Worth. Criminal-justice reform was the first section in the final platform document (see here), an obeisance not afforded the subject in many a year among Democratic opinion leaders.

The differences in the R and D platforms in large part stemmed from differences in process. The Republican party platform is a completely grassroots affair, with resolutions bubbling up from the precinct-convention level and the final product looking like a hodge-podge list of unrelated and frequently disconnected suggestions.

By contrast, the Democratic platform committee re-wrote the #cjreform section from scratch. So it reads more coherently and includes fewer jarring non-sequiturs than some of the platform planks on the R side. But it's also less of a direct expression of grassroots opinion within the party, for whatever that's worth.

In all, some version of ten of Just Liberty's proposed platform planks ended up in the GOP platform, and about 15, in some form, made it in on the D side.

In many ways, though, the Dem platform goes further than Just Liberty's resolutions. It  more systematically gives candidates at different levels - justices of the peace, constables, sheriffs, prosecutors, and judges - issues they could potentially run on as Democrats. And it's a pretty good list, much better developed than the less-reform-minded 2016 version. The various subsection titles include:
  • Bail reform
  • Re-entry
  • Mass incarceration
  • School-to-prison pipeline
  • Juvenile justice
  • Policing and improving community partnerships
  • Eliminating private prisons
  • Criminalizing intentional prosecutor misconduct
The reformist approach expressed in the Democratic platform is more comprehensive and fully developed than its GOP counterpart, but because of the party's seemingly permanent minority status, it's also perhaps less consequential.

Still, the Democratic platform had not significantly embraced a reform mindset on criminal-justice in years past. Now, they're suggesting cutting edge reforms and distinctly new approaches. For example, "Treating drug use as a public health challenge rather than a crime," and "Reducing possession of small amounts of controlled substances to a misdemeanor, even when it is a repeat offense."

They also endorsed, echoing a plank in the GOP platform, "Ending the practice of sending poor people to jail or prison for inability to pay fines or court costs."

Soon, Grits will follow up with a post detailing points of agreement between D and R platforms and speculating on prospects for bipartisan #cjreform in the 2019 Texas Legislature.

RELATED: Check out the special podcast Just Liberty put together to promote criminal-justice reform measures in the Texas Democratic Party platform.

Saturday, June 23, 2018

Judges rubber stamping capital writs, warrants now required for cell-phone location data, managed-assigned-counsel systems still suck, and other stories

Here are a few odds and ends that merit readers' attention:

Austin admits police oversight system didn't do much
Grits has said for years that Austin's civilian review panel for police was more or less worthless as oversight. They make fine recommendations, but none of them are ever implemented, as the Texas Criminal Justice Coalition demonstrated in a report last year. Now, a city auditor's report has agreed, finding that none of the civilian review panel's recommendations under the old system were ever implemented. See coverage from the Austin Monitor.

Lawsuit: Austin PD failed to properly investigate sexual assault cases
See coverage from the Daily Beast. Putting a pin in this one to look at later. Given that Austin PD's DNA lab has already been shut down because they were performing the tests wrong, it's not hard to imagine some cases aren't aggressively pursued when they should be.

Bexar should reject calls for managed-assigned-counsel
The SA Express News editorial board argued that Bexar County needs to a) spend more on indigent defense but also b) spend more on oversight to make sure it's getting quality defense for the money it's spending. They should stop promoting the Managed Assigned Counsel program, which has been a disaster in Austin. What Bexar County needs is a full-blown public defender office, and not just for mental-health cases.

Harris County judges rubber stamp DA findings in capital writs
In 96 percent of state capital habeas cases since 1995, judges in Harris County simply adopted proposed findings of fact written by the prosecution, according to this analysis from the Houston Law Review. See this summary of the analysis compiled by The Open File.

Paxton sides against local GOP judges in bail litigation
Positioning himself opposite the Republican judges who've spent more than $6 million fighting bail reform in Harris County, Texas Attorney General Ken Paxton is seeking to have lawsuits dismissed which were filed by Harris County magistrates against the State Commission on Judicial Conduct after that agency had sanctioned them. The judges in Houston fighting bail reform are becoming increasingly isolated. The bail bond industry is nearly their only remaining ally, given that statewide elected officials like the Attorney General and the Texas Supreme Court Chief Justice haven't backed their play.

Settlement in pool party police assault
The girl who was famously slammed down by police at a McKinney pool party has entered into a settlement with the city, reported The Root. " According to the Fort Worth Star-Telegram, under the terms of the settlement, ... plaintiffs in the case, were awarded a total of $184,850 last month, with $148,850 of that amount going to" the principle victim. ALSO: The Statesman has the story of another high-profile civil rights suit against a police officer out of Mesquite who tazed a teenager in the groin in a situation where the boy ultimately died.

SCOTUS: Protect cell-phone location data with warrant requirement
I haven't had time yet to read the new Carpenter decision from the US Supreme Court on when law enforcement must get a warrant to access cell-phone location data and when they don't need one. But the fact that Orin Kerr is grumpy means I'm likely to like it. Regular readers may recall that Grits had previewed the case around Christmastime with a poetic homage.

'How does the warden sleep at night?'

The demotion of a warden and several other "ranking officers" in response to Keri Blakinger's reports in the Houston Chronicle on illegal quotas being applied to inmate discipline systems at multiple units has had Grits singing the opening verse to this tune from the Old Crow Medicine Show all morning. TDCJ has dismissed around 500 disciplinary cases that officers filed against inmates under these quota systems, and it's a safe bet there are more among them which were fabricated but will now never be adjudicated.

It's the thought of those never-to-be-unearthed, fabricated cases that's caused the chorus from the Old Crow Medicine Show to bounce around Grits' head all morning: "How does the warden sleep at night, after the long day's through? Does he toss and turn? Does his conscience burn? Is he a prisoner, too?"

Friday, June 22, 2018

Reversing mass incarceration brick by brick: Podcast features #cjreform planks proposed to the Texas Democratic Party platform

Having produced a special podcast promoting #cjreform planks in the Texas state GOP party platform, it's only fair that Just Liberty return the favor for the Dems.  Here's a discussion among Democrats and liberal reformers about justice-reform planks being proposed to the Democratic platform.


What are the key justice priorities for Democratic constituencies this year? Reform leaders say transparency and accountability for police misconduct, rolling back mass incarceration and the drug war, and eliminating regressive government policies that mainly harm the poor.

This special episode promotes reform planks proposed to the Texas state Democratic platform in 2018 via local precinct resolutions. It features original music and interviews with state Rep. Gene Wu, Austin Justice Coalition executive director Chas Moore, as well as Sukyi McMahon and Kathy Mitchell with Just Liberty.

Enjoy!

Wednesday, June 20, 2018

Going soft on crustacean crime?, or, Counting crimes: Texans can commit either 3, 7, 11, 13, or 16 different felonies with an oyster

A scene from the greatest oyster-
related crime in history.
How many felony offenses are there in Texas? How many angels can dance on the head of a pin?

Ultimately, nobody knows, but every once in a while somebody takes a shot at an estimate.

The latest such official guess on the number of Texas felonies comes from the Texas Legislative Council, best known for being the official drafters of bill language during Texas legislative sessions. They've produced their first report in five years to count the number of felonies in all of Texas law and compile an "inventory."

They came up with an estimate of 749 different felonies on the books statewide.

By contrast, the Board of Pardons and Paroles has an "Offense Severity" list - which they use to assign risk levels to potential parolees - that counts well over 2,500 felonies. Here's the current iteration.

Our pal Marc Levin from the Texas Public Policy Foundation a few years ago counted around 1,700 felonies in various codes, somewhat splitting the difference.

Why are there so many estimates?

Because what counts as a separate crime may depend on the eye of the holder, and distinctions are inevitably subsumed within whatever (inevitably somewhat arbitrary) nomenclature and categorizations which drive the analysis.

To think about this, let's consider oyster-related felonies. A few years ago, Politifact fact-checked a statement I'd made that there were eleven felonies in Texas you could commit with an oyster. They rated it "Mostly True," commenting, "He could have said 16." But three of them appeared to be duplicates, so the reporter estimated 13. Politifact also found a lawyer from the Parks and Wildlife Department who said there were, broadly, seven distinct oyster felonies.

(For more background, see, "Oyster-related crime and its absurdist consequences.")

Which leads us to ask, how many felonies can Texans commit with an oyster under the TLC's nomenclature? A measly 3!

What's going on? Has Texas suddenly gone soft on crustacean-related crime? How will the state respond to the threat of felonious bivalve behavior rising like a tide upon our shores? Will Texans soon find ourselves overrun by malicious mollusks, wicked whelks, or calumnious clams? Perhaps the Governor should respond with a DPS "surge" along the beaches on the Gulf?

Fear not! Two of the TLC's oyster categories are "certain oyster license offenses," and thus subsume multiple different violations which were spelled out in more detail in the other counts.

Indeed, when we speak of "license" violations, that gets us to the criminalization of regulatory violations, which are more common in the federal system but also something that occurs under Texas law.

Some of what's going on here may be explained by Texas' historical antipathy to business regulation. Nobody in the Legislature wants to create new government agencies or responsibilities, much less fund enforcement. So when business practices arise that they dislike, Texas legislators typically react by passing a criminal law that punishes business violators with the same sanctions faced by people who rape or rob.

Whether there are eleven felonies Texans can commit with an oyster ... Or sixteen. Or thirteen. Or seven. Or three ... matters less than the fact that there probably shouldn't be nearly so many criminal penalties related to shellfish at all.

District Attorneys aren't the right people to be prosecuting regulatory violations, so often they don't get prosecuted at all until somebody gets seriously hurt, which is pretty much the opposite of what prioritizing public safety should look like.

One of the criticisms of creating a civil penalty for low-level marijuana possession during the 2017 session was that Texas doesn't have civil penalties for anything, including license violations related to oyster harvesting. But to me, the substance of that criticism doesn't argue against a civil penalty for pot, but instead for reviewing how criminal law is used in Texas as a third-rate substitute for business regulation.

Regardless, the fact that well-intentioned, highly informed people come up with such widely disparate estimates on the number of felonies tells you there are literally, at this point, too many to count.

If you have ever wondered why the number of people prosecuted in the 21st century continued to rise long after crime declined in Texas, this proliferation of misplaced criminal laws is a contributing factor.

Tuesday, June 19, 2018

Meth a bigger problem than opiods in Texas

Responding to misplaced attention by Texas legislators and law-enforcement leaders on opiods, Grits had pointed out earlier this year that the problem with meth addiction and overdoses were actually worse. Politicians and the Texas media were responding to national stories about opiod-related overdoses and the rise of fentanyl as a recreational drug based mostly on problems in Northeastern and Midwestern states that didn't exactly apply to Texas.

Now, Todd Ackerman at the Houston Chronicle has produced the first MSM coverage I've seen acknowledging that fact. Here are the key data points from the story:
The Substance Abuse and Mental Health Services Administration estimated the number of Americans who used meth in the past month at 667,000 in 2016, the latest year for which statistics are available. That’s up from the 2008 low point of 314,000. 
At the Mexico-U.S. border, agents are seizing 10 to 20 times the amount they did a decade ago. In 2016 in Texas, DEA officials seized more than 45,000 items of meth, compared to less than 6,000 items of heroin. The lab that identifies the drugs does not provide the item’s overall weight, but a Houston DEA official said that 7.5:1 ratio is consistent with the amount of the two drugs they seize. 
Deaths, too, are on the rise. Nationally, nearly 6,000 people died from meth in 2015, a 255 percent increase from 2005, according to the Centers for Disease Control and Prevention. 
Texas’ numbers are no less unsettling. In 2016, meth killed 715 people in the state, compared to heroin’s 539. Another 8,238 meth users were taken to Texas health department-funded substance abuse treatment centers, compared to 8,238 heroin users. Texas poison centers received 320 calls for help involving meth and 254 for heroin. 
The Texas meth epidemic also appears intertwined with increases in sexually transmitted diseases, including HIV, according to Jane Maxwell, a University of Texas-Austin drug abuse researcher. She cites a 2015 CDC survey of HIV-positive homosexual men that found 86 percent of respondents in Houston and 91 percent in Dallas reported that they’d injected meth in the past 12 months. She said a recent state report on HIV trends shows such use by homosexual men is doubling HIV risk factors.
California, FWIW, faces a similar dynamic to Texas because their heroin market is dominated by "black tar" heroin that's not easily mixed with fentanyl.

In recent years, drug-possession arrests have been the only growth area for Texas prosecutions. As Grits reported recently, "Texas has just gone through an era when crime declined quite a lot, and the number of case filings - except for drug cases, which accounted for 32 percent of felony charges in 2017 and 21 percent of misdemeanors (p. 26 of the pdf) - has mostly gone down with it."

At the same time, we've militarized the border and sent so many state troopers down there that the locals feel overpoliced and the rest of the state has witnessed reduced DWI enforcement. So we're arresting more people for drug use, and still, more people are dying. The problem is getting worse.

From a policy perspective, whether the overdose increase stems from meth or opiods, these numbers tell us two things: 1) The War on Drugs is failing. Again. Still. As always. Given all the resources Texas is committing to its "border surge" and prosecuting penny-ante drug users, the fact of increased deaths and lower prices related to illegal drugs flowing in from Mexico tells us that an enforcement-only approach won't work. And 2) increased overdose deaths and disease related to needle sharing argue strongly for "harm reduction" approaches like the Good Samaritan law Gov. Abbott vetoed or charity-based needle exchange like the bill passed by the the Texas House in 2015.

Texas leaders in recent years have begun to speak more frequently about being "smart on crime." This is definitely an area where Texas could be smarter.

Monday, June 18, 2018

The Intercept: State DA association understates extent of prosecutor misconduct

A recent Texas House Criminal Jurisprudence Committee hearing covered that panel's fourth "interim charge" - essentially a study assignment the House Speaker gives committees in between Texas' once-every-two-years legislative sessions - related to both prosecutor misconduct and ineffective assistance of counsel (aka, defense misconduct).

Grits had analyzed the key debates from that hearing related to ineffective assistance. And now, my neighbor Jordan Smith has a report on the prosecutor-misconduct portion of that debate for The Intercept. Jordan explored in some depth, and ably refuted, the state prosecutor association's claims that legislators should interpret the low number of prosecutors sanctioned for misconduct as evidence that prosecutorial misconduct doesn't (or barely) exists.

Between those two reports, one can get a decent sense of the terms of debate presented to the Criminal Jurisprudence Committee surrounding that interim charge.

Sunday, June 17, 2018

#cjreform in the Texas GOP 2018 party platform

Grits is back from the Texas state GOP convention in San Antonio, where Just Liberty had a booth from which we promoted a number of criminal-justice reform planks in the party platform. Delegates approved quite a few #cjreform items worthy of readers' attention:
  • Raise the Age. Calls on the Lege to raise the age of adult criminal culpability from 17 to 18.
  • End debtors prisons. The party wants to "end the incarceration of individuals because they cannot pay tickets, fines, and fees for Class C misdemeanors, including traffic citations."
  • Abolition of the Driver Responsibility Program. Includes a call to "immediately restore the driver licenses of the citizens whose licenses were suspended by the DRP and to cancel their debt."
  • Quicker processing of rape kits. The party wants crime labs sufficiently funded to reduce rape-kit processing times to 90 days.
  • Opposition to warrantless government surveillance. Two planks on this, one with general wording, and one calling on the Legislature to require a warrant for the government to access cell-phone location data.
  • Civil penalty for pot possession. The party endorsed reducing penalties for low-level marijuana possession from a Class B misdemeanor to a civil offense (essentially, a $100 ticket).
  • Remove cannabis from list of Schedule 1 drugs. This was a plank aimed at Congress.
  • Medical marijuana. The party wants to "allow doctors to determine the appropriate use of cannabis for certified patients."
  • Militarization of police. Calls for "reporting and training standards" for military equipment obtained by police from the federal 1033 program, as well as a requirement that the elected governing body approve any application to the program with a formal vote.
  • Indigent defense. Calls on the Legislature to fully fund indigent criminal defense.
Moreover, several items that were in the 2016 platform made it in again:
  • No arrests for Class C misdemeanors (except when necessary to prevent family violence)
  • Require a criminal conviction for asset forfeiture
  • Eliminate red-light cameras and other photo-enforcement systems
Notably, the "Criminal and Civil Justice" section of the state GOP platform included a requisite appreciation of law enforcement, but with caveats:
We express our gratitude and appreciation for police officers, first responders, armed forces, and veterans. And furthermore we support local law enforcement agencies and associated personnel to the extent local and state police officers are properly and adequately trained and supervised or otherwise internally and individually held accountable for any conduct which is found to violate state law or the Texas State Constitution.
There were a few #cjreform items that didn't make it in, but overall that was a successful effort. Check out Just Liberty's special, hour-long podcast interviewing conservative leaders on various #cjreform platform planks being proposed.

* * *

A few thoughts on the process:

Historically, party platforms don't carry tremendous influence during the legislative session. The dizzying array of suggestions and demands can be overwhelming. No one can agree with all of it, which in a strange way frees legislators from an obligation to agree with any of it.

But the Texas GOP under the James-Dickey regime has been promoting their platform more vigorously. E.g., failure to comply with the platform was the pretext for censuring House Speaker Joe Straus. And there were failed attempts at the convention to censure sitting officials like state Rep. Byron Cook and U.S. Sen. John Cornyn for failing to abide by the platform's principles. Especially on the GOP side, politicians are being called to account more than any time in recent memory over fealty to the platform. (Correction: Rep. Byron Cook, a commenter corrected me, ultimately was censured on a re-vote.)

At the same time, many delegates expressed deep dissatisfaction with the platform overall, which is a bit of a jumbled mess, in places, and is too long for any normal person to ever sit down and read. While this wasn't my first convention, I'd never seen the platform process up close. Those 31 volunteer committee members go through a grueling and thankless experience, working late into the evenings (read: missing all the parties), with very little time to investigate any issue closely. (Note to the state party: Next time, feed those people and give them coffee!) By the end, they were all exhausted. That didn't seem like a reasonable thing to expect human beings to endure. And they all paid to be there!

On culture-war issues, the platform takes some extreme stances that appear to flaunt a basic commitment to the rule of law. E.g., it calls on the Legislature to "reject" the Supreme Court's ruling allowing same-sex marriages, and to "ignore and refuse to enforce any and all federal statutes, regulations, executive orders, and court rulings" on pro-life issues.

Can we be frank? It's difficult to reconcile the extremist devotion to the Constitution expressed by so many party loyalists with a legislative priority to "ignore and refuse to enforce" federal laws and Supreme Court rulings on pro-life stuff. Since every Texas elected official takes an oath to uphold and defend the "Constitution and laws of the United States," that clause in the legislative priorities almost screams to elected officials, "You don't have to follow this!"

But that's the culture war. For the criminal-justice issues Just Liberty cares about, the platform signals to GOP legislators that a #cjreform vote on these topics is a "safe" one.

In addition, in an interesting and useful way, the process of promoting reform planks through all the various senate districts was like a massive focus group getting feedback on our issues. Even better: It introduced us to hundreds of supporters across Texas whom we now can contact and help plug into the process when the legislative session rolls around. If delegates who supported these ideas in San Antonio continue to participate next spring, it will help all these bills move forward.

I appreciated everyone who helped promote Just-Liberty-endorsed planks and who helped us navigate the party processes. Thank you! We had a lot of fun this week.

Finally, just for kicks, if you haven't heard our little platform campaign jingle (which means you're not a podcast listener or following Just Liberty's Facebook page), give it a listen. It's been running through Grits' head all morning.

Sunday, June 10, 2018

Special Reasonably Suspicious podcast: Conservative leaders promote #cjreform planks in Texas state GOP platform

Want to better understand the reasons why prominent conservatives in Texas are embracing justice-reform policies? You won't find a better primer on conservative justice-reform principles than Just Liberty's special, hour-long podcast aimed at promoting #cjreform planks in the party platform at the 2018 Texas state GOP convention. Check it out:


This special episode includes original music and interviews with:
  • Dr. Derek Cohen, Director of Right on Crime
  • John Baucum, Chairman Emeritus, Texas Young Republican Federation
  • Charles Blain, Executive Director of the Restore Justice Project, Empower Texans
  • Jason Isaac, President of the Conservative Coalition Research Institute
  • Heather Fazio, Campaign for Responsible Marijuana Policy
  • David Safavian, American Conservative Union Foundation
Enjoy!

Find a transcript of this special episode below the jump.

Thursday, June 07, 2018

Choker!, (Mis)Understanding Probable Cause, and other stories

Let's clear a few browser tabs and pass along some interesting tidbits that merit Grits readers attention:

TFW you find a box of guns and bloody money at the courthouse
Keri Blakinger did a wonderful job attempting to fill in the backstory on this amazing discovery.

They're all isolated incidents, we promise
A small-town Texas police chief (Olney) forced two men to perform a sex act at gun point and attempted to coerce the wife of a sex offender into becoming his "slave." That's quite a sense of entitlement this gentleman felt, don't you think?

No TCLE credit for Tom Green County sheriff training on jihadi threat
The Texas Commission on Law Enforcement retracted accreditation for a police training in San Angelo focused on the "jihadi threat," preaching to law enforcement that Muslims harbor secret aims to colonize America and impose Sharia law. Good for Kim Vickers, doing his job.

Bad things happening in jail
Grits can find no related press coverage, but a petition on Change.org alleges that a woman in the McLennan County Jail on a detention hold was sexually assaulted while being held on an immigration detainer for more than two years. She's a 30-year county resident and local businesswoman with four US-citizen children. I hate these stories. Heart wrenching.

Choker! 
A fired Waco cop who'd choked a handcuffed defendant and claimed he'd acted in self defense is on trial for two misdemeanor counts - assault and official oppression - reported the Tribune-Herald. A police trainer told jurors the officer had been specifically trained not to grab a defendant by the throat in that manner. Further, "Trial testimony showed that while the other officers there that night said they were shocked by Neville’s actions, they did not report it to their supervisors or note the incident in their reports." At least he's off the force.

Needless death thanks to outdated force policy
In Austin, a mentally disturbed 18-year old woman wielding a knife was shot dead by police. As Grits has described before, American cops are too quick to shoot knife wielding suspects. Both the Police Executive Research Forum and best practices from other countries have identified much better ways to handle these situations.

Analyzing unsolved murders
The Washington Post compiled clearance rates for murders over the last decade in the 50 largest US cities. Above 50 percent looks pretty good. Further, unsolved murders tend to be geographically clustered, they found.

Traffic stops are a crappy investigative tool
Frank Baumgartner, who authored a book analyzing racial profiling data from millions of traffic stops in North Carolina, told CityLab interviewer Tanvi Misra that "using the traffic code and the vehicle code as a way to investigate people more broadly has not given very great benefits in terms of crime reduction, but it's had an unintended and unnoticed consequence: It has made people feel like they don't have full citizenship. They walk down the street and they're suspects."

(Mis)Understanding probable cause
This analysis found that the public doesn't understand "probable cause" the same way lawyers and the government do, and the confusion causes community distrust. The authors "discuss the implications of these findings for the perceived fairness of police procedures and its impact on police–community relations."

Indigent defendants faring worse than two decades ago

Readers will recall recent reportage from the Texas Tribune's Neena Satija finding that defendants in Travis County with appointed counsel fared far worse than people who hired lawyers. Of those accused of petty drug possession, 80 percent were convicted who had appointed counsel compared to 48 percent who could afford to hire a lawyer, a Council of State Governments report found.

So I was interested to run across an old Bureau of Justice Statistics document from 2000 analyzing national statistics on defense counsel in criminal cases. (As far as I can tell, they've done nothing similar since.)

Back then, according to that document, conviction rates for defendants with retained and publicly paid attorneys were essentially similar, and the bigger difference was in the sentence received: "Of defendants found guilty in Federal district courts, 88% with publicly financed counsel and 77% with private counsel received jail or prison sentences; in large State courts 71% with public counsel and 54% with private attorneys were sentenced to incarceration."

So the big difference from hiring a lawyer came not from whether or not one was convicted, but whether or not one received a jail sentence. That's a big difference from today, when hiring a lawyer in the Travis County CSG analysis meant defendants were much more likely not to be convicted at all.

But even that's not the full story. According to the 2000 BJS report, "State defendants with public counsel [were] sentenced more often to prison or jail, but for shorter terms than those with private lawyers."

That was especially true for defendants convicted of drug crimes in state court, where average sentences back then were 97 months for defendants with a lawyer paid by the state compared to 140 months for people who hired a lawyer!

So in some ways, state defendants with publicly financed counsel fared better than people with private lawyers. Hiring a lawyer made you less likely to be sentenced to prison but, if you were sentenced, you were likely to be punished more than 40% longer if you retained counsel.

By contrast, today hiring a lawyer both makes one much less likely to be convicted and less likely to be punished harshly. The system has shifted more to the benefit of well-off defendants than it was 20 years ago, to judge by these data.

Despite serious disparities, defendants were receiving something closer to equal treatment, whether or not they could afford to hire a lawyer, during the period covered by that BJS study compared to now.

'Justice Needs A Platform'

Part One of the denouement of Just Liberty's campaign to install #cjreform planks into the platforms of both Texas political parties begins next week, with the state GOP convention in San Antonio. Today I'm putting together a special, hour-plus podcast for the event, highlighting interviews with Republican leaders in support of the various platform measures, and every time I use our little jingle (sprinkled throughout, in whole or in part, to brand the campaign), it makes me smile. If you haven't heard it yet (which means you're not a podcast listener or following Just Liberty's Facebook page), give it a listen:


We've got another version that goes, "Justice Needs A Champion," which we'll use this coming session in support of items that make it into the platform(s).

Lyrics are mine. Gabe Rhodes, a veteran Austin producer and virtuoso guitarist, composed and produced the music, which was performed by an all-star cast of Texas musicians: Floyd Domino on piano, John Mills on clarinet, Dony Wynn on drums, and Glenn Fukunaga on bass. (Many vocalists, including ours on this project, prefer not to be named on jingle work.) It was humbling and awesome to have truly world-class musicians on the project.

Speaking of music, Just Liberty created another short jingle, titled "Stop The Train," for our decarceration campaign over the coming year. We'll be using it to brand the campaign across a variety of media. To introduce it to our supporters, we let folks download/listen to it on the thank-you page they see after they sign a petition asking TDCJ to include prison closures in its budget request for the coming session.

Go here to sign the petition and give it a listen: It's essentially a simple, blues-based train song, of all things, but I think it's pretty fun. Once again, lyrics are mine, Gabe Rhodes produced it, and Dony Wynn made the whole thing go with his percussion mastery. Malford Milligan performed the vocals, and did a really sweet job.

All of this and more will be integrated into our GOP state convention podcast released next week, so look for that and give it a listen. Now, having procrastinated sufficiently, it's back to audio editing for me. More later, gentle readers!

While I'm focused on that project, Grits readers should use the comment section as an open thread to say what important criminal-justice developments Texans should be paying attention to? There's a lot going on!

Denial not just a river in Egypt, but also the go-to move for TDCJ flaks

The habit of the Texas Department of Criminal Justice (TDCJ) issuing full-throated denials whenever reporters raise serious problems is beginning to annoy your correspondent (again), and I wonder if others have noticed?

For example, when an inmate at TDCJ's Youthful Offender Program (YOP) was molested by an adult prisoner earlier this year, TDCJ spokesman Jeremy Desel told Lauren McGaughy at the Dallas Morning News, “'Any characterization of the [YOP] program being systemically flawed is false.' ... 'This is an isolated incident in which TDCJ took swift administrative actions against all employees involved.'”

In reality, under the federal Prison Rape Elimination Act (PREA) - which Governor Abbott agreed Texas would follow, reversing Governor Perry's stance - 17-year old inmates were supposed to be kept completely separate from adult inmates, enforcing "sight and sound" restrictions so older inmates could never see or speak to them.

So, when an adult inmate stuck his finger up the behind of a 17-year old in the Youthful Offender Program (YOP) in Brazoria County, it demonstrated that TDCJ had never actually complied with the sight and sound restrictions under PREA!

No adult prisoner should ever have been within ass-fingering distance of those kids.

Which tells us that, while TDCJ's spokesman insisted that, "Any characterization of the program being systemically flawed is false," in fact the incident precisely demonstrated a "systematic flaw" that went well beyond any "isolated incident."

These deeper, underlying, systemic issues are why TDCJ fired the warden and most of the YOP staff, then moved the whole operation, lock, stock, and barrel, to a facility in Huntsville nearer central administration. That's definitely a "systematic" response that belied the phony-baloney, nothing-to-see-here commentary Mr. Desel tried to pawn off on Ms. McGaughy.

The warden and staff were scapegoated. This problem resulted from decisions to disregard PREA sight-and-sound provisions for 17-year olds that would have been made at the highest levels of the agency.

Similarly, when the Texas Criminal Justice Coalition issued a report criticizing disparities in work and education opportunities for women prisoners, Mr. Desel told the Texas Tribune's Sydney Greene that he "vehemently disagreed" with the report, but offered at most nitpicking rebuttals to their criticisms.

This is deflection. In fact, as we learned in the same story, the agency itself recognized the disparities and asked for money from the Legislature in 2017 to upgrade women's programming, but it was denied. If the agency really disagreed there was a disparity, why would they need to ask for that money?

Then, this week, Grits read Keri Blakinger's story in the Houston Chronicle about four prison guards being fired at TDCJ's Ramsey Unit for planting evidence on inmates, then filing grievances against them. Allegedly, this fraud was conducted to comply with a 2-grievance-per-day quota dictated by their supervisor, a major, who was also terminated.

Once again, Mr. Desel exclaimed that the planting of evidence was an "isolated incident." But it's not an isolated incident if four guards are involved and they were enforcing a policy laid out by their supervisor! That's pretty much the opposite of an isolated incident. Rather, it is an example of systemic injustice.

One guard planting evidence on a prisoner and covering it up may be an "isolated incident." Five doing so is a conspiracy.

The Dallas News story mentioned above quoted a whistleblower accusing TDCJ of a "culture of coverup," and that's certainly what's evinced in this pattern of denials. In each case, reporters came forward with legitimately newsworthy stories and the agency responded with minimizing comments or outright denials in the face of obviously true, contravening facts.

That's not just evidence of a bunker mentality at the agency, it's a piss-poor PR strategy, to boot. Failing to acknowledge true things sets the agency up for a long-term media mire on these topics, where denials are corrected with facts, the agency issues a new round of denials, then we rinse and repeat until there's some real-world resolution, as we saw recently with the Texas Supreme Court ruling the agency can't conceal information about execution drugs.

Speaking of which: Few outside the agency probably remember that TDCJ fired their former spokesman, John Hurt, because he'd spoken honestly and factually with the press about that topic. Here's how Mr. Hurt, a 20-year PR veteran from the Texas Department of Transportation, recalled his brief tenure at TDCJ:
"My last interview was with Time magazine about the expiring execution drugs. When they found out, they positively came unglued that I did what I was getting paid for. They even admitted the interview read well, they just didn't want the issue in the media. They just wanted to keep issues like the CO shortage and the outdated execution drugs as far out of the media as possible."  Mr. Hurt went on to explain, "The admin suffers from intellectual incest. They all live in a little town, went to the same little college in Huntsville and are terrified of new ideas." Mr. Hurt then offered his ideas on how to change the face of the public information office and the agency in general. "Moving the agency to Austin would be in everyone's best interest." "I tried to show them how to position themselves in a positive light and they didn't want any part of it. I've never worked in a stranger place."
Before that, Michelle Lyons was fired for treating bloggers on equal footing with MSM reporters when they (we) requested information or reactions from the agency. They trumped up phony allegations that she'd fudged her time sheets and she sued, winning a fat settlement.

So this practice of deflection and deception is not new and not just attributable to Mr. Desel. Well before he arrived, back in 2013, I'd written, "Lately, Grits has come to consider both the TDCJ and Department of Public Safety PIOs [Public Information Offices] basically worthless," and little has changed since then.

Rather, it's more about what that YOP whistleblower called the "culture of coverup" surrounding what's now the planet's second largest prison system (after the feds) here in Texas. It's an old and well-worn pattern. But it's a continually lamentable one.

Sunday, June 03, 2018

Now in a dwindling minority, failure to "Raise the Age" creating problems for Texas all over

The Missouri Legislature recently voted to raise the age of adult criminal responsibility from 17 to 18 years old, beginning January 1, 2021. That leaves Texas one of only four states nationally that still prosecutes 17-year olds as adults, despite the fact that an overwhelming majority of GOP primary voters (86%) support changing the policy. This is becoming embarrassing.

Quite a few stories you see on Grits are byproducts of Texas' backwards, minority-view policy on who is a juvenile.

For example, yesterday in a roundup I'd linked to a Dallas News story about the Youthful Offender Program at the Texas Department of Criminal Justice, which manages incarcerated youth younger than 18. After an adult inmate engaged in sexual relations with one of the youth, the warden and most of the staff were terminated and the entire program was moved to a unit in Huntsville, closer to central administration. This program - and the scandals that come with it - only exist because Texas has refused to "raise the age."

Similarly, Governor Abbott wants to treat 17 year olds as children for purposes of their parents' gun-storage requirements, but I'd described how the exact same logic may be used to support prosecuting 17-year olds as juveniles. Indeed, if Texas had already raised the age for purposes of prosecutions, it's likely the gun-storage rules would have been updated in the process.

We've also discussed county jails having to pay to meet federal PREA standards because they must enforce "sight and sound" barriers between 17 year olds and adult populations. The Legislature has balked at the fiscal note on raising the age, but failing to adopt the policy has created unfunded mandates for counties which are shouldered by the same taxpayers in the end.

And, of course, treating 17-year olds as adults created all sorts of problems with Texas' capital punishment scheme, given that US Supreme Court rulings treat them as juveniles.

There are so many areas where updating this one policy would resolve issues and remove glitches from various justice-system conundrums that are caused, at root, by treating 17-year olds as adults for some purposes and children for others.

Indeed, Grits has argued that raising the age from 17 to 18 merely moves Texas from a 19th to a 20th century policy. But in the 21st century, modern brain science has shown youthful brains continue to develop well after that. Society already treats older youth as children for many purposes - buying tobacco (18), alcohol (21), renting a car (25), staying on their parents' health insurance (26) - and there's no reason to think criminal prosecution necessarily should fall on the lowest end of that range.

Things are changing fast. When the Texas Legislature last convened, there were seven other states which still prosecuted 17-year olds as adults. After Missouri, there are three. 

Texas has made such great strides on the juvenile decarceration front, even if it has further to go. It's a shame that, nationally, this issue continues to paint the state as backward and excessively punitive. It's such a pointless stance, and on the ground is creating more problems and costs than it prevents.

Saturday, June 02, 2018

Too full rural jails; missing interrogation recording can't be used as 'sword' against defendant; and other stories

Here are a few odds and ends of which Grits readers should be aware:

Youthful offenders get new home, program at TDCJ
The federal Prison Rape Elimination Act created special requirements for housing youth under 18 away from older inmates. After a sexual incident at the Texas Department of Criminal Justice's Youthful Offender Program that forced its from-scratch overhaul, the firing of the warden and most staff, and moving the program to an entirely different unit, it becomes more obvious why. Lauren McGaughy at the Dallas News has a report from the new unit housing the program.

TJJD safer with fewer inmates, director says
According to this letter to Governor Abbott from Texas Juvenile Justice Department Executive Director Camille Cain, " I am happy to report that we have already seen progress on several fronts. For example, the population in our secure facilities has dropped to historic lows, from 1,026 youth in December 2017 to 879 today. At the same time, we have seen a 43 percent drop in major rule violations and a 54 percent decrease in violent incidences. JCOs have lowered the use of physical restraints by 26 percent and the use of OC spray by 48 percent. All of this change is promising for Texas." See coverage from the Dallas News.

Missing interrogation recording can't be used as a 'sword' against defendant
In a recent CCA ruling favoring the defense, Judge Scott Walker ruled that a partially recorded interrogation was unfair and inadmissible after the prosecutor used the failure of the state to record the conversation to accuse the defendant of lying. Wrote Walker:
Assuming, without deciding, that Appellant testified truthfully about what she told the detectives in the missing thirty minutes, support for her testimony had been lost by the State, which then used the loss to accuse Appellant of lying and making things up. Appellant’s explanations were minimized by counsel for the State, both during her testimony and in closing argument to the jury. Appellant could not prove that she had made a prior statement that was consistent with her trial testimony because any such statements had been lost through no fault of her own. By repeatedly referring to what might or might not have been said during the missing thirty minutes, the State improperly used the missing minutes as a sword against Appellant. The error in this case was material.
Too-full rural jails
Check out the Texas Public Policy Foundation's new report on overincarceration and rural jails.

Rights for me but not for thee
Here's an academic paper considering the disparity in how police are treated when being questioned over alleged criminal conduct compared to average citizens, arguing that they should be treated equally. See related Grits coverage here, and related commentary from Toby Shook here.

Friday, June 01, 2018

Gov. Abbott: raise the age at which youth are considered children, but only for purposes of gun-storage rules (?)

In his plan to address school shootings, Texas Gov. Greg Abbott called on the Legislature to "to raise the age at which someone is considered a child from whom adult gun owners would have to secure their guns; Abbott wants to raise that one year to include 17-year-olds like the shooter at Santa Fe High School," reported the Austin Statesman.

Grits' thought: Isn't there a philosophical link between the Governor's proposal to consider 17 year olds "children" for purposes of gun ownership and the "raise the age" proposal to charge 17 year olds as juveniles instead of adults in criminal court?

If someone should be "considered a child" at 17 for purposes of access to firearms, can Texas really justify prosecuting 17-year olds as adults in other contexts?

After all, what is the nature of the developmental deficiency among 17-year olds that the governor thinks a birthday will fix? Why might one consider 17 year olds less than reliable when it comes to prioritizing firearms safety?

Why, it's for the same reason most states don't charge 17 year olds as adults when they commit crimes: The portions of their brains responsible for cognitive reasoning are less well developed than they will be when they are older. Or, in layman's terms, 17-year old youth are not yet as mature as adults.

Surely, if that's his position, the Governor should get behind raising "the age at which someone is considered a child" in general from 17 to 18, not just on this one, narrow, gun-safety provision.

Either 17-year olds are adults who're prepared for all of life's responsibilities, and the resulting consequences from not fulfilling them, or they're not.  And clearly Gov. Abbott doesn't believe Texans can rely upon 17-year olds to behave in a responsible fashion, or such a law wouldn't be necessary. (Indeed, most parents of a 17-year old would likely tell you themselves that their child isn't prepared to face the world on their own as an adult.)

Gov. Abbott's proposal challenges the legalistic pretense that 17-year olds can and should be expected to behave as responsible adults. But he should be consistent. If parents are still responsible for their children's 2nd Amendment rights at 17 because a 17-year old's cognitive reasoning is under-developed, surely it make little sense for the criminal-justice system to prosecute those same youth as adults when they break the law?

Gov. Abbott's arguments for raising the age in this narrow context highlight how inappropriate it can be to assign adult expectations to 17-year old actors. These are lessons state leaders must eventually embrace much more broadly, but journeys of a thousand miles always begin with first steps.

Wednesday, May 30, 2018

#MeToo among Texas women prison guards

Go read Keri Blakinger's new Houston Chronicle story on the topic.

Keri writes that, "female officers also have to contend with harassment from coworkers, masturbating inmates and fear of retaliation if they complain, according to lawsuits, state records and interviews." Here are the crux of the allegations:
“You think it’s the inmates you have to worry about,” said one former employee, who asked not to be identified, “but it’s actually the people you work with.” 
Some women told the Chronicle of enduring lewd comments or inappropriate contact from co-workers. One female employee said she and other women guards picked jobs working around inmates to avoid having contact with the men who supervised them. 
The latest allegations come after the department reached a $250,000 settlement last year in a lawsuit accusing a male lieutenant of raping an officer he supervised — a claim reminiscent of former assistant director Sammy Buentello, who retired in 2004 amid criminal charges and a high-dollar lawsuit by multiple women accusing him of sexual harassment and assault. 
TDCJ officials, however, say that sort of workplace environment is a thing of the past. 
“Any days of a male-dominated culture are long gone,” said Lorie Davis, director of TDCJ’s Institutional Division and the highest-ranking woman in the agency. “We have a lot of women that move up through the ranks.”
Ms. Davis seems to think that because, as a division manager, nobody sexually harasses her, that it's not a problem at the agency: “I haven’t experienced sexual harassment as a female in our agency in years,” she said. “Years and years, not since I was a corrections officer literally 30 years ago.”

Does anybody really believe that, in Texas' predominantly rural prison system, where guards are paid roughly half the wages of the counterparts in California, for example, and more than one in four positions turn over annually, that the "days of a male-dominated culture are long gone"?

That seems awfully hard to swallow.

Tuesday, May 29, 2018

Killing off Texas' drug-task force system: A reminiscence

State Sen. Juan "Chuy" Hinojosa called this morning to reminisce about the effort to rein in and, ultimately, de-fund, Texas' system of multi-county drug task forces, a campaign referenced in this post, and he was such an unsung hero in that story, Grits thought it worthwhile to recount his role briefly.

State Sen. Juan "Chuy" Hinojosa
The Tulia drug stings arguably mark the beginning of the 21st century Texas #cjreform movement, but by the time they occurred, Chuy Hinojosa was already a veteran legislator in the Texas House and was poised to chair the House Criminal Jurisprudence Committee in 2001. From that position, he carried and passed legislation to require corroboration for informants in undercover drug stings which was bitterly opposed by prosecutors and police unions. Then-rookie Sen. Leticia Van de Putte carried it in the Senate, and ended up taking on a bigger fight than she'd bargained for!

The campaign for a corroboration bill took on a life of its own, with local religious activists from Tulia organizing their people to come to Austin, while allies came out of the woodwork, from the right and left alike, in support of a drug-policy reform agenda which previously had no, obvious legislative champions. This was essentially tilling virgin, bipartisan terrain. (Check out a contemporary flyer from that campaign promoting our bill among religious conservatives; here's the "mainstream" version.)

The House floor vote on the Tulia corroboration bill was the first time in living memory that a bipartisan, grassroots, reformist faction outflanked the center-right ruling faction on criminal-justice topics. The media loved the Tulia story and trumpeted the success everywhere, helping bring additional resources and momentum to the nascent #cjreform movement in Texas. Groups like the Texas Criminal Justice Coalition and the Texas Fair Defense Project were created during this period in the early aughts - it was the first time the movement here had institutions as opposed to just a few disparate voices.

Perhaps even more importantly, that floor vote provided a template for passing a flood of reform legislation that followed. In retrospect, it was a pivotal moment.

Hinojosa continued to demand accountability from drug-task forces, and finally the other side pushed too far. In 2005, during session, the senator reminded me today, he was pulled over by a drug task force officer who suspected him of being a drug courier, perhaps because the senator was driving a nice vehicle. The senator believed he was being racially profiled, or worse, targeted for filing reform legislation to force all the task forces under control of the Texas Department of Public Safety. After that happened, the Senate's passage of the put-em-under-DPS bill was a fait accompli.

By this time, most of the Tulia defendants had been exonerated and pardoned, the cop who set them up had pled guilty to perjury, some of the task forces had been targeted via federal civil rights litigation, and your correspondent had spent several years compiling examples of task force abuses in a campaign based out of ACLU of Texas aimed at getting rid of them. In other words, the terms of debate had significantly changed.

The Legislature refused to get rid of drug task forces outright in 2005, but they did pass a compromise bill putting them under control of the Department of Public Safety Narcotics Division, which at that time was run by Patrick O'Burke, a square-jawed, no-nonsense guy who demanded more accountability using better metrics than they were used to.

In  the end, the majority of task forces refused accountability and declined to follow some or all of O'Burke's new rules.

Meanwhile, at ACLU of Texas, we were encouraging every eligible entity in the state that might compete with drug task forces for Byrne grant money to apply to the governor, even sending blank applications and pitch information to various local officials by snail mail and following up with calls encouraging them to apply. Many did, and every time one of them made a compelling case for funding, it simultaneously made an implicit case that the task forces shouldn't receive funds.

At this point, in 2006, then-Governor Rick Perry surprised everyone. Drug-task forces were funded through his office's Criminal Justice Division using federal Byrne grants, and he decided to turn off the spigot. A few task forces tried to keep going until their asset forfeiture money ran out, and others created single-county task forces outside of DPS control (and without state or federal money).

In the end, except for a few that scaled back to a much-reduced single-county footprint, they all just went away. When the Tulia drug stings happened, there were 53 multi-county task forces covering most of the state and employing around 700 narcotics officers who collectively made some 12,000 arrests annually. And then they didn't. Moreover, I dare say, for all the sound and fury surrounding their de-funding, I haven't heard them mentioned (by Texans) in years and as far as I can tell, no one misses them.

However, there's a somewhat dark and unfortunate coda to that story. When Gov. Perry de-funded Texas' drug task forces, he decided to split the pot of federal money to pay for two other priorities: 1) drug courts and other specialty court dockets, and 2) the original "border security" surge along the Rio Grande which presaged the current DPS/National Guard surge (read Melissa del Bosque's story on the border surge if you haven't already; go ahead, I'll wait).

Eventually, federal Byrne funds were replaced with hundreds of millions of general revenue dollars, most of it to pay for the Department of Public Safety to rotate troopers to the border for inefficient, short-term deployments.

So abolition of the Byrne-grant funded drug-task-force system in Texas was a victory for bipartisan justice reform - both liberals and small-government conservatives support scaling back the failed drug war - but it freed up funds for an unnecessary and problematic militarization of the border.

According to Sen. Hinojosa, the border-surge priorities issue goes far beyond just DPS troopers not making DWI arrests in the rest of the state. He cited Parks and Wildlife not having enough personnel for duties in the northern part of his senate district around Kingsville/Corpus Christi because they're all deployed in the Valley.

Grits appreciated the senator calling to reminisce after reading my drug-task force post from the weekend. There aren't that many of us still in the game who remember all of that well enough to tell the stories.

So, a day late after Memorial Day, here's a hearty thank you to a former marine, for his service a lifetime ago in Vietnam, to be sure, but for his yeoman's service on these topics, as well. ¡Gracias, Chuy! 

Considering ineffective assistance without all the voices in the room

The Texas House Criminal Jurisprudence Committee the other day held an under-attended hearing (hardly anyone in the audience and no quorum on the dais - video here) covering three topics: the legal framework behind sexual assault prosecutions (which bled into discussions of crime labs), prosecutor misconduct, and ineffective assistance of counsel (IAC).

In this post, let's consider their discussion of ineffective assistance, first recounting what was said on the topic, followed by a few words about issues Grits wishes the committee would have addressed.

Hearing highlights: Levels of IAC 'very disconcerting'
Stacy Soule, the State Prosecuting Attorney told the committee the number of ineffective assistance cases being heard by the Texas Court of Criminal Appeals is "very disconcerting," warning legislators, "this is not something that's on the margins." By contrast, findings by the CCA of prosecutorial misconduct are relatively rare.

Soule predicted Texas will soon see cases where ineffectiveness is alleged based on defense attorneys failing to invoke the Michael Morton Act or examine the state's evidence.

Grits has heard the same thing, fwiw, particularly in jurisdictions where attorneys are given electronic access to discovery, which means prosecutors and judges can tell if they never bothered to access it. This apparently happens a good deal of the time. Eventually, that documentation may be used to claim attorneys were ineffective if they never downloaded discovery materials. Possibly, entire county systems could be held accountable if it could be proven they knew attorneys didn't look at discovery and kept hiring them to represent indigent clients, anyway. These were the thoughts running through my head as Grits listened to the SPA's testimony.

In that vein, our pal Shannon Edmonds, the Texas District and County Attorneys Association lobbyist, complained that prosecutors have had to hire additional staff to comply with the Michael Morton Act, only to find that many defense attorneys never seek to review it.

Edmonds suggested the Legislature change the law to make public any defense attorney's settlement over grievances with the state bar related to ineffective assistance claims, just as they did for prosecutors in response to misconduct allegations a few years ago. Grits would support that.

According to Soule, as of last week, the CCA had granted IAC relief in nearly 200 cases already this term, with a month left to go before it ends.

While offering no remedies for IAC, Soule suggested it was a big problem for prosecutors for the following reasons:
  • may result in wrongful convictions
  • takes a substantial toll on the judiciary's resources
  • creates difficulties re-prosecuting old cases years later
"Ineffective assistance of counsel is a systemic and long lasting problem," Soule declared.

Linda Acevedo from the state bar disciplinary committee said the state bar doesn't typically sanction lawyers for ineffectiveness, except in cases where lawyers outright ignore or fail to communicate with their clients. In addition, there has been an uptick, she said, in cases where criminal-defense lawyers get involved in immigration cases, don't know what they're doing, and screw them up (my paraphrase) because they are "not competent" to work in the area.

Geoffrey Burkhart, the new head of  the Texas Indigent Defense Commission  who replaced Jim Bethke, told the committee that IAC isn't a "few bad apples" problem but is a systemic issue. (Grits' thought: Can't it be both? After all, bad apples spoil barrels.)

Burkhart said IAC generally boils down to two issues: "The no body problem and the warm body problem." As for the "no body problem," many criminal defendants still do not get counsel or do not get a lawyer soon enough in the process. In some counties, said Burkhart, appointment rates are as low as 10 percent.

The "warm body problem," he said, stems from (often flat) fees for indigent defense being so low that attorneys must work on volume. As a result, attorneys don't spend a lot of time on each case and begin to "jettison core defense tasks."

The Sixth Amendment is a "gateway right," said Burkhart, because without a lawyer one can't enforce one's other rights to due process, etc..

The Texas Indigent Defense commission can only formally audit and inspect a handful of counties each year, Burkhart noted, but in 17 years the agency has never once performed such inspections and found a county in compliance with the Fair Defense Act, he said. Because of that, he said, TIDC tries to play more of a collaborative role instead of taking a gotcha-mentality.

Chairman Joe Moody implied at one point that Texas' indigent defense funding mechanisms might be the subject of federal civil rights litigation based on equal-protection grounds: "You have a situation where you have a constitutional right that's being applied very differently based on where you're charged with a crime."

Notably absent from this portion of the hearing was the criminal-defense bar, who apparently don't mind letting prosecutors' representatives define their problems for state legislators.

Testimony the Committee should have received
Although it's possible she couldn't do so because of conflict with judicial duties (even though legislators won't legislate again until after she's off the court), I found myself wishing Judge Elsa Alcala had been invited to the hearing to testify. She's described in detail the structural barriers to challenging ineffective assistance in CCA dissents and concurrences, and recommended legislative action in response. In particular, she believes the Legislature should expand the right to counsel to include habeas writs, only for purposes of challenging ineffective assistance claims.

Grits would add that the Legislature should consider a remedy to the issues raised by the US Supreme Court's decision in Davila v. Davis, which held that lawyers' ineffective work on state habeas proceedings did not excuse a procedural default because there's no constitutional right to counsel in state habeas proceedings. IMO, there should be some way statutorily to ensure that ineffective lawyers don't prevent defendants from pursuing meritorious claims in state habeas proceedings. This hearing would have been a great opportunity to receive input on the question.

In a dissent to that case, joined by three other justices on SCOTUS, Justice Breyer pointed out the same problem with Texas IAC law in that case as Judge Alcala has been raising: State habeas corpus writs are the "first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial," and there's no right to counsel at that phase.

Given all this judicial interest - not just from the CCA but from SCOTUS - Grits was sure these issues would be considered at this hearing. But they never came up.

Grits also wished they'd had some law prof or researcher to provide some context to the numbers the State Prosecuting Attorney put out, about which Shannon Edmonds tried to imply that a handful of prosecutor misconduct cases or the few dozen IAC claims upheld by the Court of Criminal Appeals represented the entire universe of bad-lawyer behavior in the justice system. That's absurd, but the contention was allowed to stand un-rebutted.

In reality, there are dozens of hoops a case must get through before the CCA agrees to hear it, and many (in fact, by far, most) legitimately problematic cases of prosecutor misconduct and IAC never get that far.

Fort Worth Attorney Mike Ware, speaking of his work with the Innocence Project of Texas, meandered toward that point, telling the committee that IAC and prosecutor misconduct both are typically "hidden." DNA evidence might exonerate someone, he said, then when people looked back to say, "why was that person convicted?," they might find IAC or misconduct by a prosecutor. But without that needle-in-a-haystack discovery, no one would ever know.

That's the case in most instances, both of prosecutor misconduct and IAC. The few cases we see are examples of patterns which exist more broadly in the justice system, but only rarely show up in state appellate court opinions.  As with actual innocence cases, one should look at them much like a small statistical sample, each one representing many more unseen cases out in the world.

There are other aspects of ineffective assistance the committee should have addressed, not the least of which are high caseloads among attorneys appointed to represent indigent defendants. A recent Texas Tribune story found that, in Travis County, "the 10 private Austin-area attorneys with the most appointments handled an average of 533 cases in 2017." In Harris County, totals run even higher! The Texas Indigent Defense Commission has created excellent tools for analyzing these topics, so the issue is ripe for more detailed study.

The underfunding of indigent defense at this level amounts virtually to a structural guarantee of ineffective assistance. From a political perspective, this is not a bug, it's a feature. Texas' indigent defense systems were created, and most recently upgraded (2001), during a period of tuff-on-crime excess. They were designed to facilitate convictions, not to defend against them. After all, if defense lawyers were better, counties would need more prosecutors (who also have excessive caseloads), judges would have to respond to more motions, and court dockets would fluctuate considerably before reaching some new, for-now unpredictable equilibrium. Basically everything about the courts gets a little more expensive and everybody has to work a little harder.

That said, Grits doesn't buy complaints that indigent defense costs are an "unfunded mandate" from the state, any more than prosecutors' salaries are an "unfunded mandate." The budgetary arrangement for many decades in Texas has been that counties take care of funding local court and jail costs and the state pays for prisoners they send to TDCJ. I'm not against the state contributing more on indigent defense, but IMO it should only be done if counties pick up some of their share of the "unfunded mandates" running in the other direction in the form of long prison sentences, possibly through a cap and trade arrangement.

Underfunding indigent defense is a concern, and more funding must be part of any solution, but it's not happening in a vacuum, and it's not the only cause of ineffective assistance.

RELATED: Spotlight on ineffective assistance: Barriers to remedies