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

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

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

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

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

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

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

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

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

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

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

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

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

See prior, related Grits coverage.

Carpenter codification non-controversial so far

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

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

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

Podcast: Elsa Alcala says Texas death penalty unreliable; parsing new TX traffic-stop data; prospects for Lone-Star marijuana reform, and other stories

Here's the March 2018 episode  of the Reasonably Suspicious podcast, recorded last week on the SXSW Podcast Stage hosted by Cadence13. Former Texas Court of Criminal Appeals Judge Elsa Alcala was our special guest, focusing on junk forensic science and the death penalty.


Here's what's on this month's show:

Opening Riff
Would permanently shifting to Daylight Savings Time reduce crime?

Top Stories

• Prospects for marijuana reform in Texas
• New data on use of force at Texas traffic stops
• Legislative proposals to end the Driver Responsibility surcharge

Forensic Focus
Judge Elsa Alcala discusses junk science cases at the Texas Court of Criminal Appeals.

Death and Texas
Judge Alcala discusses the evolution of her views on capital punishment, from proponent to critic, and what the Texas Legislature should do to fix the state's unconstitutional laws on executing people with developmental disabilities.

The Last Hurrah

• More corruption revealed after botched drug raid in Houston
• Should stealing Amazon packages become a felony?
• Closing the "Dead Suspect" loophole to the Texas Public Information Act

Find a transcript of the show below the jump.

Defining an 'undue hardship': Updating last session's debtors-prison reform bill

The Texas House Criminal Jurisprudence Committee on Monday heard HB 465 (White), which is update legislation from debtors-prison reform legislation (HB351/SB1913) passed in 2017. (Attentive readers may recall that, when he laid out HB 351, state Rep. Terry Canales told the committee that the ideas in his legislation originated with a post on this blog!) Despite predictions two years ago that collections would plummet and indigent drivers wouldn't be held accountable, the opposite occurred: collections actually increased when some of the most regressive collections tactics were abandoned.

But the 2017 legislation only made a small dent in the problem. While there was an uptick in fines waived and community service granted, far more people (more than half a million) satisfied their fines through "jail credit" - i.e., they were incarcerated in lieu of payment.

Readers may also recall that, at their state conventions in June, both the Republican Party of Texas and the Texas Democratic Party included provisions in their platforms calling for an end to jailing drivers for non-payment of traffic tickets and other Class C misdemeanor debt, switching to commercial collections methods, instead.

HB 465 does not go that far. (White's HB 2754 comes much closer; more about that bill soon). Rather, HB 465 demands that judges take into account defendants' ability to pay, authorizing them to waive fines or order community service if penalties create an "undue hardship," a phrase which is defined more broadly in the bill than in the past. The changes would bump up usage of fine waivers and community service in lieu of incarceration, but leave the fundamental "pay or we jail you" structure of the system intact for most drivers. Regardless, it's a good bill making important improvements to a regressive, dysfunctional collections process.

Here's a fact sheet from the Texas Fair Defense Project and Texas Appleseed supporting the bill.

New reports show Austin police use force at traffic stops much more often than other agencies

Austin police are more likely to use injury-causing force against drivers they pull over than any other large Texas jurisdiction, according to new "racial profiling" data reports out this month from law-enforcement agencies around the state. Go here to look up reports from various departments, which agencies were required to submit to the state by March 1st.

These are called "racial profiling" reports because documenting racial discrimination was their original purpose when they were mandated in 2001. But really, they're the most detailed description we have of police activities at Texas traffic stops, revealing lots of interesting patterns and trends in addition to (still extant) racial disparities.

Indeed, thanks to state Sen. John Whitmire and Rep. Garnet Coleman expanding data collection in 2017 as part of the Sandra Bland Act, Texas now has MUCH more information about law enforcement activities at traffic stops in Texas, including new information about use of force at stops, how many people are arrested on outstanding warrants, and how many people are arrested for Class C misdemeanors. This is the first round of reports with the new data elements included.

Most media coverage of these reports so far has focused on racial disparities in traffic stops and searches. But Grits thought it worthwhile to focus on the new data reported. Grits created a spreadsheet with info from 4.6 million traffic stops from 38 of the largest Texas jurisdictions, calculating the rate of use of force, arrests for Class C misdemeanors, and arrests for outstanding warrants. (Among the largest jurisdictions, Fort Worth PD has not yet submitted a report.)

The reports evidenced wide variation among agencies. Let's start with use-of-force rates at traffic stops.

As mentioned in the lede, drivers stopped by Austin PD were far and away more likely to have police use force against them than any other agency, at 77 times per 10,000 stops. Houston PD was next, with a much lower rate at 53 per 10,000. After that were Denton PD (42), Corpus Christi (24), and Texas DPS (17), with rates headed south from there.

Austin police use force at traffic stops more than four times as often as state troopers, and at 20x the rate of the San Antonio PD! That's a big outlier.

Looking at arrest rates for Class C misdemeanors, Waco PD leads the pack, arresting 451 drivers out of every 10,000 traffic stops. (Amazing: That's nearly one in 20 drivers!) Following Waco, departments arresting the most people at traffic stops for Class Cs were League City (406), San Antonio (246), Odessa (236), Killeen (181), Lewisville (172), Beaumont (153), Houston (150), Midland (142), and Austin (124).

Finally, some cities focus a great deal on arresting folks with outstanding warrants for traffic tickets (this will be mostly a simple nonpayment issue), while others hardly ever arrest drivers they pull over for traffic warrants. Arlington appears to almost never enforce warrants at traffic stops, while Beaumont, Killeen, Midland, League City, and Austin top the list of jurisdictions making the most such arrests per 10K stops.

Notably, Austin PD stands out among the worst in each category: Most likely to use force at traffic stops; in the the top five on arresting for outstanding warrants; and in the top ten for arresting drivers on Class C misdemeanor charges. The city has a reputation as liberal, but these data evidence quite authoritarian policing practices compared to other large Texas jurisdictions.

However, this isn't just a capital-city story. For Texas reporters and advocates reading this, the new racial-profiling reports present an opportunity for localized focus on use of force and Class-C-misdemeanor arrests in a way that previously wasn't possible. This is information to which no one had access before! (If your local agency isn't on Grits' spreadsheet, look them up here.) As such, there's a lot more to learn than the highlights conveyed in this blog post. I'm sure Grits will return to these data soon.

A tale of two approaches to Texas property-theft thresholds

A pair of bills heard in two Texas House committees this week demonstrate opposing philosophies when it comes to incarcerating people for low-end property theft.

At Monday's Texas House Criminal Jurisprudence Committee hearing, state Rep. Gene Wu, a Houston Democrat, proposed HB 760 making theft of packages delivered to someone's front porch an automatic state-jail felony, even if the value of the stolen items were just a few dollars. Wu said this was justified because going onto someone's porch was a particularly egregious invasion of privacy. State Rep. Andrew Murr suggested expanding the bill to make it a state-jail felony to steal anything out of someone's yard or driveway.

State-jail felonies are essentially Texas' version of a fourth-degree felony, punishable by 180 days to 2 years incarcerated, served day for day without parole, with fines up to $10,000. Under current law, thieves must steal $2,500 or more worth of goods to reach that threshold in Texas; below that, theft is a misdemeanor.

There are still pockets of particular types of theft scattered throughout Texas' criminal code exempted from the 2015 thresholds. E.g., it's still a state-jail felony to steal "less than 10 head of sheep, swine, or goats." So, steal a couple of goats worth $40 apiece - which would be a Class C misdemeanor in terms of value - and it's an automatic felony. Switch price tags to reduce the price of a hammer at the hardware store - automatic Class A misdemeanor. Since the passage of Texas' new property-theft thresholds in 2015, legislators have continued the effort by applying them to additional theft types. E.g., in 2017, another bill by Konni Burton applied them to check forgery.

Just Liberty opposed HB 760 in committee and followed up this week walking around a handout to committee-members' offices opposing the bill. Our fear is that it would ramp up state imprisonment for property theft during an era when it's been rapidly declining. Give our handout a read.

Porch piracy is a function of consumers seeking convenience. People want products delivered to their homes, and don't want to wait around the house to sign for them. But convenience can come with trade-offs, both in terms of consumer privacy and security. When commerce occurs in a commercially zoned location, retailers employ loss-prevention specialists and a certain amount of low-grade shoplifting is considered a cost of doing business. Move commerce to your front porch and no one should be surprised if consumers face the same low-grade theft problem witnessed at retailers.

Wu compared porch piracy to burglary of a habitation, saying if it were made a state-jail felony, police would take it more seriously and investigate. But home burglaries have among the lowest clearance rates of all index crimes, often in the 10-12 percent range. There's scant evidence making the punishment for such crimes harsher makes them any easier to solve.

There's also no evidence to support his inference that public pressure couldn't convince police to change their priorities and investigate porch-piracy incidents, especially as cameras proliferate, making them easier to pursue. IRL, police are remarkably responsive to such pressure. Maybe not in every instance, but in aggregate, for sure.

By contrast, in the Business and Industry Committee on Tuesday, Rep. Matt Shaheen, a Plano Republican, proposed legislation Just Liberty supported, HB 427, which would apply the property-theft thresholds to theft involving price-tag switching. This is a less-frequently seen brand of shoplifting, essentially, which occasionally can reach grandiose levels but is more often an impulse crime committed in a moment of human weakness.

Presently, price-tag switching on low-value items garners an automatic Class A misdemeanor, punishable by up to a year in county jail and a $4,000 fine. Shaheen's bill applies the property-theft thresholds Texas passed in 2015 to such crimes, so that the theft only becomes a Class A misdemeanor if the person is stealing more than $750. Remarkably, the bill faced no opposition in committee.

This blog has opposed criminal-penalty enhancements for more than a decade, and in recent years we've seen new allies step up like the Texas Public Policy Foundation criticizing the idea that criminal-penalty enhancements are a one-size-fits-all policy response to any objectionable behavior. Juxtaposing these two pieces of legislation provides a good demonstration of 2019 public-policy debates in Texas regarding punishment of property theft.

Shaheen's bill continues efforts to reduce incarceration for low-level theft begun by Republican state Sen. Konni Burton, who was ousted by Democrat Beverly Powell last November.

By contrast, Wu's HB 760 evinces an old-school, tuff-on-crime mindset: Don't like a petty but annoying behavior? Throw government resources at the problem till it goes away. (And then, pretend you're surprised when the behavior inevitably persists.)

To be fair, Wu has supported other criminal-justice reform legislation in the past, particularly on juvenile matters. But the last thing Texas needs is a new law filling up prisons for low-grade property theft. Shaheen's approach makes more sense. Legislators shouldn't begin carving out exceptions to property-theft thresholds just two sessions after enacting them. Consolidating all the various brands of theft to apply the thresholds across the board is the better approach.

TX marijuana reform news, notes, and questions

Grits' analysis of prospects for marijuana penalty reform haven't changed since the beginning of the legislative session. Full-blown Colorado-style legalization is off the table this year, but penalty reduction for user-level marijuana possession has an excellent chance.

The Republican Party in its platform has endorsed one proposal making possession of up to one ounce of marijuana a civil penalty, a measure embodied in Speaker Pro Tempore Joe Moody's HB 63, which received an early hearing this week. Watch the hearing here; the discussion of HB 63 begins at the 41 minute mark.

Meanwhile, Governor Abbott has endorsed reducing the penalty for up to two ounces of pot to a Class C misdemeanor, which is a fine-only offense usually handled with a written citation.

Those remain the two, competing proposals with the best chance of passage. And the civil-penalty idea is getting a head start in the House with a strong, early hearing. Plus we're gaining a little new information as the process moves along. Here are several, disparate, pot-related items I wanted to record at this point in the process which merit Grits readers' attention:

First, the Texas Observer best-in-state coverage of Monday's hearing was titled "Third Times' a Charm," which is certainly the case for Speaker Pro Tempore Joe Moody's bill providing civil penalties for pot. His was a fresh approach to an old problem. But it's worth remembering that legislation to reduce penalties for low-level marijuana possession, as Governor Abbott endorsed, first (unanimously) passed out of the House Criminal Jurisprudence Committee in 2005. The bill simply has never been blessed by House leadership to receive a floor vote, even though most vote counters believe it would overwhelmingly pass.

Another tidbit from this Texas Tribune story, an updated estimate of the number of annual marijuana arrests: "According to the Texas Department of Public Safety, roughly 379,000 Texans have been arrested for possessing 2 ounces or less of marijuana in the past five years." That's 75,800 people arrested per year, more than has sometimes been reported.

Moreover, the Trib reported, "In Dallas County, newly-elected District Attorney John Creuzot said his office is currently declining prosecution for first-time marijuana possession offenders." Creuzot is the first Texas DA to go that far. Here's hoping he won't be the last, and that he'll expand the non-prosecution policy to other victimless crimes like Driving With License Invalid (DWLI).

In San Antonio, DA Joe Gonzalez aims to fix a broken, unused cite-and-release system for pot possession and theft of service, eliminating a $250 fee that kept people from using it, the Express-News reported. (He is also becoming a vocal proponent of bail reform.)

No companions have been filed in the Senate to either Moody's bill or the competing penalty-reduction legislation, although there are still a couple of days left to sneak one in under the wire. (See the comments.) But especially with Moody's bill getting an early start, it appears the marijuana reform action will begin on the House side this year. That suits me fine. I don't doubt for a moment there are sufficient votes on the House floor to pass it.

Unanswered questions: There are many.

Will the House Criminal Jurisprudence Committee Chairwoman Nicole Collier also hear legislation promoting Gov. Abbott's version of reform, or was the early promotion of HB 63 a signal that she prefers that method?

Will Gov. Abbott acquiesce in a GOP-platform endorsed alternative (HB 63) to his own idea, or threaten an unpopular veto?

If Moody's bill comes over from the House with the GOP-state platform's imprimatur, will Lt. Gov. Dan Patrick, a champion of the platform on other topics, shut it down?

There's many a slip twixt the cup and the lip, as my late grandmother used to say. And while there are positive signs this year for reducing user-level marijuana penalties in Texas, there are also a lot of things that could go wrong if key actors aren't willing to compromise.

Grits prefers the Moody bill, but the Governor's proposal would be a huge improvement and I've supported his suggestion many times in past legislation, back before marijuana reform became the Flavor of the Month. Either approach would be a big improvement and I hope legislators, the Governor, and everyone else with competing proposals can agree on a path forward.

Funding needed to bolster Office of Capital and Forensic Writs

My Reasonably Suspicious podcast co-host, Amanda Marzullo, who is the executive director of the Texas Defender Service, asked me to publish this guest blog post she authored advocating for expanded resources for the Texas Office of Capital and Forensic Writs. Give it a read:

Members of the Senate Finance Committee’s Article IV Subcommittee should take a lead from their counterpart committee in the House  and adequately fund the Office of Capital and Forensic Writs (OCFW), which has been under-resourced since its inception in 2010.

The office represents people on death row in constitutional claims relating to their conviction or sentence. The post-conviction writs filed by OCFW, often composed of hundreds of pages and years of work, ensure our system is fair and helps us avoid the most serious of mistakes.

Importantly, counties are on the hook for most costs of post-conviction representation when OCFW is not able to handle a case. The OCFW seeks funding from the Fair Defense Account, a General Revenue-dedicated fund which can only be spent on indigent defense expenses.

Each session, the head of OCFW reports that staff is over worked and underpaid—even by government public service standards. Lawyers in this office handle 8.5 capital cases on average, which is about 70% higher than their counterparts in other Texas post-conviction entities, where attorney workloads are capped at 4 to 6 cases—depending on the size of a case’s record and the issues that require research and investigation. OCFW attorneys at this office are also paid significantly less than lawyers at other entities, which prevents the office from hiring and retaining experienced lawyers. For example, the State Prosecuting Attorneys Office, the Capital Habeas Units of the Federal Public Defender Offices in Dallas and Austin, and the Regional Public Defender for Capital Cases in Lubbock are all able to pay their lawyers 40-50% more on average than the OCFW.

Given this backdrop, it’s hardly surprisingly that the office struggles with high attrition rates. Since it opened its doors nine years ago, 27 staff members have departed from its payroll roster, which currently includes just 16 people. Such high turnover impedes their representation, and ultimately, may lead to a new grounds for appeal in federal court.

Finally, and perhaps most importantly, the House Appropriations subcommittee voted to provide funding for the office’s expansion into forensics writs.  Readers of the blog will remember that legislature directed the office to handle non-capital junk science cases that are referred by the Forensic Science Commission two sessions ago through legislation sponsored by Senator Hinojosa. Yet, to date, the legislature has not allocated one iota of funding for these cases. Funding for these cases and the OCFW simply makes sense.

Pot debate at #txlege launches early, Soldiers as cops?, Tailoring corrections practices to women prisoners, and other stories

At the Texas Legislature this week, criminal-justice bills are finally being heard, although not yet in all committees, and all on the House side. Most of the major legislation remains to be seen; some of it has yet to be filed. Excepting marijuana discussions described below, all the biggest #cjreform debates of the session are all yet to come. But here are a few mostly-small bills up in committee this week that deserve Grits readers' attention:

Marijuana reform debate launches early
This afternoon, the House Criminal Jurisprudence Committee launches the first volley in what's sure to be a lively debate over marijuana policy, considering Speaker Pro Tempore Joe Moody's HB 63 reducing possession of less than an ounce of pot to a civil penalty punishable with a ticket/fine up to $250. Notably, Moody's proposal more or less matches what the state Republican Party platform endorsed last year (the GOP said the fine should be $100). Meanwhile Gov. Greg Abbott has endorsed reducing criminal penalties for possessing up to two ounces of pot from a Class B to a Class C misdemeanor. That's close but not exactly similar to state Rep. Alma Allen's HB 371, and rumors are flying that we may yet see another bill closer to the Governor's approach. (See Grits' earlier discussion of the competing proposals and the implications.) Chairwoman Nicole Collier's elevation of the Speaker Pro Tempore's bill to her committee's first substantive agenda means this debate launches early. For Grits part, I prefer Moody's bill but support either approach compared to the status quo.

Mandatory felony for porch piracy?
In the same Criminal Jurisprudence Committee hearing as the marijuana debate, Houston Democrat Gene Wu has proposed a bad bill making the theft of any package delivered to someone's front porch an automatic state jail felony. To be clear, if the value of the item stolen is more than $2,500, it's already a state jail felony. But Wu wants to create new mandatory minimums for all stolen packages. As I was writing this, my wife passed by and I asked her the last thing we purchased from Amazon. Her reply: Some dry-erase markers and a book my granddaughter needed for a middle-school class. Definitely not worthy of a state-jail felony.

Switching up punishments on price-tag switching
State Rep. Matt Shaheen, a Republican from Plano, has a small-but-interesting penalty-reduction bill up in the House Business and Industry Committee on Tuesday that's the philosophical opposite of Wu's porch-piracy bill: HB 427 would apply the property-theft thresholds increased by the Legislature in 2015 to the offense of price-tag switching, which right now is a Class A misdemeanor regardless of the value of the item. The new law would have price-tag switchers charged based on the value of the stolen item, whereas Wu wants the Legislature to ignore the new property-theft thresholds when it comes to stolen Amazon packages.

Soldiers as Cops
HB 971 (Clardy), up in the Homeland Security and Public Safety Committee on Wednesday, would let former military personnel substitute military service for police-officer training. With only narrow exceptions (e.g., markmanship) Grits wouldn't consider it even remotely proper to allow such substitutions. "Soldier" and "police officer" are quite different jobs.

Corrections Committee to focus on women and kids
House Corrections Committee Chairman Chairman James White has a pair of bills up in his committee on Thursday. HB 659 would require TDCJ to count and report the number of prison inmates with children "of any age." But that stops short of actually identifying minor-age children who might benefit from provision of services, or facilitating kids' access to their incarcerated parents. In that sense, the bill's a disappointment. The legislation resulted from one of the committee's interim charges, but doesn't go as far as discussed during the interim. (See Grits' write-up here.)

Tailoring corrections practices to women prisoners
Another chairman's bill up in Corrections this week, HB 650, would require TDCJ to provide feminine hygiene products (defined  as products whose "principal purpose" relates "feminine hygiene in connection with the menstrual cycle") to indigent women inmates in TDCJ free of charge. The bill requires guards in women's prisons to receive training related to pregnant inmates and for the women to receive education about their pregnancy, parenting skills, medical and mental health issues, etc.. The bill mandates that women (only) with children under 18 must be allowed up to two contact visits per week with them. Wardens can restrict this access based on security concerns. (Question: If we're not going to track which kids belong to which parents under HB 659, how can they decide who is entitled to two visits per week under HB 650?) The bill requires female guards to perform body cavity searches of women inmates, with limited exceptions, and institutes special nutrition requirements for pregnant women. The bill also ensures women who give birth in TDCJ can spend 72 hours with their newborns before they're taken away.

More people may seek restoration of civil rights bc of bill to expand clemency access
Juvenile Justice and Family Matters Committee Charman Harold Dutton has HB 573 up in House Corrections this week to let people who've completed their state prison sentence and waited three years to apply have their civil rights fully restored. Interesting bill, even if Grits isn't completely sure I understand all the implications. This is a rarely used clemency process that requires the governor's sign off, and it's been many decades since Texas had a governor willing to indulge anything more than an occasional, symbolic use of clemency powers, plus a few folks found actually innocent by DNA evidence and/or the courts.

Seeking to stop sex offenders seeking pen pals
Finally, Rep. Matt Shaheen has HB 428 up in House Corrections this week forbidding sex offenders incarcerated in TDCJ from soliciting pen pals on free-world web sites, even if someone else does the posting, pays the fees, etc.. But it's a strange ol' world, this practice is more common than the uninitiated might expect, and Grits is unwilling to condemn every such communication as lacking value. As long as there's transparency, I'm not sure I see a problem that stamping "Correspondence from a Registered Texas Sex Offender" on the outside of every outgoing envelope wouldn't solve. Last session, the same committee approved a similar bill but it never received a vote on the House floor.

Reasonably Suspicious podcast: Harris commissioners nixed DA hiring request, and other stories

The Harris County District Attorney can't hire more prosecutors, the Houston PD can't find the informant behind a botched SWAT-style narcotics raid, and the chairman of the House Corrections Committee can't understand why local government spends so much money jailing people. My co-host Mandy "Tiger" Marzullo and I discussed all this and more in the better-late-than-never February episode of the Reasonably Suspicious podcast:


Here's what we discussed on the show this month:

Top Stories

• Harris County rejects DA request for new prosecutors (2:15)
• Houston PD can't find informant behind botched, deadly SWAT raid (8:00)

Interview
House Corrections Committee Chairman James White (14:30)

Data Corner
Conversation with Just Liberty's Chris Harris about Class C misdemeanors (21:00)

The Last Hurrah (31:38)

• Texas jails and prisons gathering voiceprint data from inmate phone calls
• Long lines at DPS staffing centers
• Guard salaries, A/C, and staff turnover at TDCJ

Find a transcript of the podcast below the jump.

Bill aims to close 'dead suspect loophole' to TX Public Information Act

For 25 years in Texas, from 1971 to 1996, police files on closed criminal cases were open records, whether or not anyone was ultimately convicted. But in 1996, the Texas Supreme Court eviscerated what was then the Texas Open Records Act when it came to law enforcement records, ruling in a case styled Holmes v. Morales that police case files are closed unless they resulted in a conviction or deferred adjudication. Then, the following year, the Legislature codified the restrictive court ruling rather than re-install the older, stronger standard that governed police records for a quarter century.

Tomorrow in the House State Affairs Committee, Speaker Pro Tempore Joe Moody will present a bill, HB 147, to open records in a subset of cases closed without a conviction: incidents where the defendant dies, either killed by police, committing suicide, or via other means. At Reason magazine, C.J. Ciaramella dubbed this the "Dead Suspect Loophole" to the Texas Public Information Act. Local media in Austin have highlighted several cases matching this profile.

Grits agrees that closed information about deceased suspects is an important aspect of the problem. However, framing it that way understates the size of the loophole. Problems with the law-enforcement exception to Texas Public Information Act go much deeper than that, and the Legislature should address them. I'm certainly glad this aspect is being highlighted, but Grits wishes the bill went farther.

The ill-considered codification of Holmes v. Morales was the issue which first inspired Grits to begin showing up at the capitol more than two decades ago, as fate would have it. Past legislative efforts to revisit the topic never got off the ground. So I'm happy to see it being addressed now, even in part.

Bill limiting suspensions a start at untangling worst-in-nation driver-license mess

Texas revokes more drivers licenses, by far, than any other state, The Washington Post reported last year. But House Corrections Committee Chairman James White wants to change that. He has a bill up in the Homeland Security and Public Safety Committee on Wednesday that would rectify a small but unremittingly ill-conceived provision in the current law.

Presently, Texas law doubles down on license suspension as a punishment, even when it fails to keep drivers off the road. When the Transportation Code lists grounds for suspending licenses, the very first one is driving while one's "license was suspended, canceled, disqualified, or revoked, or without a license after an application for a license was denied."

So one of the punishments for driving with your license suspended is to suspend your license for a minimum of one extra year. Combined with the Driver Responsibility surcharge, which has left more than a million Texans with suspended licenses, this provision adds insult to injury, leaving drivers without a license even after delinquent surcharges are finally paid.

By contrast, people who engage in "habitually reckless" driving, "fraudulent use" of their license, or are responsible for an accident that results in serious personal injury or property damage, only get a 90-day suspension.

Driving with an invalid license is already its own crime, so it doesn't particularly need the extra administrative penaltyy. Chairman White's HB 162 would apply the extra suspension only for drivers whose licenses were suspended for DWI. And then, he would limit the suspension to 90 days, which is the amount of time for all other suspensions under the same provision.

It's a small change but it would help untangle a particularly difficult bureaucratic gnarl which can ensnare drivers for years after they've otherwise paid their debt to society. Grits is glad to see the bill getting an early hearing and hope it garners support in committee.

Decarceration, police accountability, transparency: Little bills worth watching

Much attention at the Texas Legislature gets paid to a handful of Big Bills in the criminal-justice world like bail reform, driver-surcharge abolition, and enacting a constitutional standard for executing people with serious mental illness or developmental disabilities. But thousands of bills get filed, including lots of smaller ones that merit attention and potential support from justice reformers. Here are just a few that caught Grits' eye in the last couple of days. In the coming weeks I'll periodically highlight a few more pieces of less-high-profile Texas legislation that should be on reformers' radar screens. But for now, try these on for size:

'Mandate Relief' on pot and DWLI
Rep. Alma Allen's HB 371 reducing marijuana penalties has gotten a lot of attention because of the governor's endorsement of an essentially similar proposal. But Grits is just as interested in her HB 372 reducing penalties for Driving With License Invalid (DWLI). These two victimless crimes take up a lot of cop, court, jail, and indigent defense resources at the county level that would be better expended elsewhere. Reducing these penalties would be the opposite of an unfunded mandate, if there's a word for that: mandate relief, maybe.

Right-sizing three-strikes theft enhancement
Rep. Yvonne Davis filed HB 1240 adjusting the penalty for misdemeanor three strikes theft. Presently, the third strike garners a state jail felony, even if the grade of theft otherwise would only be a Class C misdemeanor. Davis' bill would create a third-strike enhancement that bumped the penalty category up one level, and require that all three strike occurred within a five-year span. In the wake of the Legislature boosting property-theft thresholds in 2015, three-strikes theft is now the second most common source of new entrants to Texas state jails, behind less-than-a-gram drug offenders (Rep. Senfronia Thompson's HB 1719 would reduce penalties for those defendants, fwiw), so three-strikes reform could have modest but significant decarceration effects.

Limit SWAT-style raids to imminent threats
Rep. Harold Dutton's HB 2015 would require law enforcement agencies to enact policies limiting the use of SWAT teams and tactics to situations involving an "imminent threat." It would require additional reporting on SWAT deployments, require those teams to wear body cameras, and specifies that "The existence alone of a legally owned gun in the home of an individual does not constitute evidence of an imminent threat." MORE: See excellent coverage of the bill from the Houston Chronicle.

Documenting consent
State Rep. Jarvis Johnson filed HB 804 to require police officers to get written or recorded consent to conduct "consent searches" at traffic stops.

Clarifying 21st century police powers
Rep. Toni Rose's HB 745 updates anachronistic language on police powers that's long-ago been usurped by court precedents and modern police practices. Remarkably, some of the language dictating police "shall" arrest (really it's "may") whenever they see a crime, or empowering officers to compel bystanders to form a posse, dates from slave-catching laws in the antebellum era which have never been revisited. That task is long overdue.

Media access to grand juror info
Rep. Tony Tinderholt's HB 1609 would allow disclosure of certain information about grand jurors to "a member of the news media acting in that capacity."

Closing the 'dead suspects loohole'
Rep. Joe Moody's HB 147 would close the "dead suspects loophole" in the Texas Public Information Act that says the government doesn't have to hand over any records if the case is never prosecuted. Moody's targeting cases that weren't prosecuted because the suspects died; Grits thinks that's a good idea, but it would be even better to open the records for all closed cases, as was the case in Texas from 1971-1996.

Expunction Junction, What's Your Function?
Rep. Terry Canales, the new chairman of the House Transportation Committee, joined with an impressive array of joint authors to promote a bill expanding expunction of certain nonviolent misdemeanors. This isn't my area of expertise and Grits doesn't track expunction/non-disclosure bills closely, but I'm glad to see serious people taking the issue on.

Study migrating Class C misdemeanors to civil penalties
Finally, Chairman Canales also filed HB 110 to commission a feasibility study by the Office of Court Administration, due Oct. 1, 2020, of which Class C misdemeanors should be converted to civil infractions. In a post last year, Grits explained why Texas law criminalizes hundreds of petty offenses - including up to 16 felonies you can commit with an oyster - that would be handled through regulation and civil penalties in other states:

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.

Legislation filed to abolish driver surcharges

Yesterday, Texas Senate State Affairs Committee Chairwoman Joan Huffman and House Appropriations Committee Chairman John Zerwas filed companion bills which appear to be the leadership-driven abolition proposal for the Driver Responsibility Program (DRP) that will be the main focus this session.

SB 918 and HB 2048 aren't perfect, but they're certainly headed in the right direction. The bills suggest an array of new funding sources for trauma hospitals, most of which are less objectionable than the reviled Driver Responsibility surcharge.

The bill increases a fee on auto insurance policies by two bucks, 60% of which would go to the trauma fund. It diverts money from a vehicle-registration fee that was already authorized to fund the DRP. And it raises the state portion of traffic fines on certain moving violations from $30 to $50, while lowering the municipal portion from 5% to 4%; however, only 30% of that money will go to trauma centers, with the rest headed to the general revenue fund.

Perhaps the most controversial funding source would simply rename surcharges for people convicted of DWI, calling them "fines" but applying them in exactly the same way.

So, "in addition to the fine prescribed for the offense," which is set by the judge, the bill proposes that first-time Class B DWI offenders pay a "fine" of $3,000 spread out over three years; $4,500 for second offenders; $6,000 for third. Thirty percent of this money will go to trauma hospitals; the rest goes to the state's general-revenue fund.

Here's the rub: When those same fines were "surcharges," a majority of drivers could not pay them. And in an era when the Federal Reserve tells us 40% of the American public cannot pay a surprise $400 bill without going into debt or selling something, there's little reason to expect that will change.

Unless judges are given the ability to waive or reduce those amounts at sentencing, this is going to create the same problems we saw under the Driver Responsibility Program with respect to high nonpayment rates for DWI offenders. Indeed, low payment rates inevitably will make these fines another unreliable funding source for trauma hospitals, just as surcharges never remotely paid hospitals as much as the Lege originally predicted.

In Texas, DWI is presently a Class B misdemeanor punishable by up to six months in jail and a $2,000 fine on the first offense. This bill would add a mandatory $3,000 fine on top of that, which we already know from experience most people can't pay.

To Grits, the more rational approach would be to increase the max fine for misdemeanor DWI to $3,000 ($4,500 on the second offense, etc.), letting judges set the number, taking into account ability to pay. Then fund trauma hospitals from a general-revenue line item to ensure stability. (They're generating quite a bit of new, general-revenue money in this bill.) That way, legislators could signal their disapprobation for DWI by increasing fines, but avoid replicating predictable failures we've already seen from unpaid surcharges.

Even Mothers Against Drunk Driving supported allowing judges to waive or reduce surcharges in the interests of justice. The Legislature should do the same with DWI fines.

Regardless, all these problems with high fines are happening now in the status quo for DWI offenders, and the bill would eliminate surcharges for hundreds of thousands of people going forward. By any measure, it's an improvement.

CORRECTION: The original version of this blog post indicated that people with existing surcharges would not receive amnesty under the bill. That was inaccurate. Grits regrets the error.

Turmoil at Lubbock ME, Texas' failing state jails, implications of youth-prison riot for raise-the-age bill, and other stories

Here are a few browser-clearing odds and ends that merit Grits readers' attention:

Lubbock ME's office a Grade A clusterf#@k
The interim medical examiner at the Lubbock medical examiner's office has alleged that the previous ME, Dr. Sridhar Natarajan, was frequently drunk at work, used county facilities for his private practice, and, most seriously, took bribes to change the results of autopsies. But the main source for the allegations came out and vehemently disputed his account. In the meantime, weird allegations have arisen regarding use of body parts from autopsies for research/experimentation by the current, private vendor, who denies the charge categorically. What a messy collage of allegations, denials, and counter-allegations!

Gainesville youth prison out of control
The Houston Chronicle's Keri Blakinger published a story on rioting and widespread disturbances at the Texas Juvenile Justice Department's Gainesville unit last fall. On Twitter, Grits explained why this news may put the kabosh on raise-the-age legislation in 2019. My prediction: Texas will eventually be the last state in the union prosecuting 17-year olds as adults. Right now, we're one of four.

'False and misleading' forensic evidence led to death sentence
The El Paso DA relied on "false and misleading" forensic evidence about infant trauma to secure the conviction of Rigoberto Avila, the trial court found, recommending his conviction be overturned. Avila was scheduled to be executed in 2013 when Texas' junk-science writ took effect, but he immediately filed a writ under it and now it appears his case could be overturned entirely.

TDCJ disputes heat-death diagnosis
An autopsy found that a TDCJ inmate died of hypothermia. TDCJ officials are disputing the finding, demonstrating how they intervene to curate causes-of-death in the wake of federal heat litigation.

Failing state jails
Texas state jail system is widely regarded as a failed experiment, reported the Texas Tribune's Catherine Marfin. Their treatment mission never really materialized and recidivism rates from the facilities are far higher than other inmates leaving TDCJ.

Critiquing carceral mental-health care
The largest mental hospitals in Texas are all jails and prisons. The Dallas News published an editorial decrying that situation and calling for substantial, additional investments in mental health outside the justice system.

Austin warrants online?
How did Grits only just discover that Austin PD made all of its active warrants searchable online? Useful. Overwhelmingly, most of them are petty, Class C misdemeanors, but that database represents thousands of people living with the threat of incarceration looming over them.

TX bail-reform momentum growing amidst supportive press

Source: SA Express-News

In San Antonio, bail companies openly advertise to defendants that they should reject "personal bonds" and use bail bondsmen instead to avoid court fees, in-person check ins, and drug testing. That's pretty brash, for a group trying to convince the Texas Legislature that they're in the business of protecting public safety!

Here are several items anyone tracking the Texas bail debate will want to have read:

• SA Express-News: Bexar's stunning embrace of cash bail
• Austin Statesman: Texas' bail bond system is broken. This bill can help fix it
• Beaumont Enterprise: State should reform cash bail system
• Filter: New evidence backs calls to end cash bail

The Express News story mentioned a tidbit I hadn't heard. The appointed attorney for Janice Dotson-Stephens - the schizophrenic grandmother who died in the Bexar County jail over the holidays - never once visited her in the five months she sat in jail on a $300 misdemeanor bond. Asked if the attorney, Jerry Valdez, faced any sanction for this failure, County Court at Law Judge John Longoria, who is leading the charge to oppose bail reform, told the paper, "I am a little embarrassed that we haven’t looked into it for more detail.” As in Travis County where judges are opposing new state funding for indigent defense because they prefer not to have a public defender, apparently Bexar County judges cannot be embarrassed into reform.

The Filter story describes Philadelphia DA Larry Krasner's bail reform efforts. Here is the list of offenses for which his office no longer requests cash bail:

RELATED: On the January episode of our Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed the various federal bail-reform lawsuits around the state. It's the top story, starting at the 1:58 mark.

Houston PD will end most no-knock warrants after botched drug raid

"The no-knock warrants are going to go away like leaded gasoline in this city," declared Houston Police Chief Art Acevedo at a town hall meeting after police killed two people (along with two dogs) and four officers were shot while serving a search warrant, reported the Houston Chronicle.

The chief said he no longer "sees the value" in such raids, which were criticized earlier this month in a Texas Monthly story. In the future, said Acevedo, HPD won't use the tactic in most instances, and in the rare cases it is needed, it will require his personal approval.

That would be a big deal if he follows through with it. Here's hoping the announcement isn't just a short-term media stunt. Indeed, one hopes the Texas Legislature might look at requiring chief-level sign off for all "dynamic entry" episodes. God knows, this is an issue statewide, not just in Houston.

SWAT-style raids aren't the only policy area where reforms are implied by this clusterf&#k. Grits earlier identified an open-records exemption that keeps police misconduct secret at HPD. And Acevedo declared the department would roll out a new body-camera policy in the coming weeks. Officers in the raid weren't wearing bodycams and the incident wasn't recorded.

Finally, reforms are needed in the murky world of undercover drug enforcement. There probably needs to be more internal monitoring of informants used to secure search-or-arrest warrants, including keeping records of whether their information holds up. Another needed change: informants should be afforded a right to counsel whenever police use them to make cases against others. That would both protect them from having their rights abused, and provide a barrier to police faking informant testimony to secure probable cause, as allegedly occurred in this case.

Travis judges reject public defender, DA discretion the solution to budget constraints, crime deterrent from traffic stops minimal, and other stories

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

Travis County judges refuse state money for public defender office
Travis County's bid to create a public-defender office isn't officially dead yet, but it may as well be after Presiding Judge Brenda Kennedy authored a letter saying local judges unanimously opposed the idea. Kennedy has urged judges not to speak for themselves and has thrown their support solidly behind the local criminal defense bar, which habitually opposes any public-defender system. Their reasoning is nonsensical. They don't want to spend $1.5 million on matching funds because it would reduce resources for the failed managed-assigned counsel system in use now. But that $1.5 million would draw down $15 million, significantly increasing resources available for indigent defense. So the judges are opposing increased indigent defense funding from the state at a time when counties statewide are pushing for the state to cover a bigger share. How does that make sense? Kennedy also disingenuously criticized the letter for vagueness, but it is a letter of intent, merely to get approval from the Indigent Defense Commission to develop a more detailed plan. If it was approved, the debate over those details begins. But no one wants to go through that if the judges won't buy in. This is an anti-#cjreform stance, by any measure, in an era when voters, especially in Democratic primaries, care about justice reform more and more. Judges up for re-election in 2020 should expect to defend this position in their primaries; they won't be able to hide behind Judge Kennedy's letter forever. More on this later.

More Houston drug-raid fallout
It's probably premature for the Houston Chronicle editorial board to declare local police could now rebuild trust after the no-knock drug raid in Houston that resulted in four officers shot, and two homeowners along with two of their dogs killed. The public isn't there yet, and couldn't be. They don't yet know how deep the rabbit hole goes. Conservative activists are already calling for Chief Art Acevedo to be fired. Meanwhile, others are calling for reforms to how SWAT-style raids are conducted.

DA discretion the solution to budget constraints
Harris County DA Kim Ogg is still stinging from the commissioners court's rejection of her proposal to hire 100 additional prosecutors. But in many ways, this opens up an opportunity to utilize her discretion to reduce caseloads if the commissioners court won't pony up. Here's a relevant academic article laying out the rationale for considered use of prosecutorial discretion to stop charging low-level offenses in the face of limited budget constraints.

Bail-bondsman empire strikes back
Bail bondsmen are suing to stop implementation of a settlement in the Harris County bail bond suit. In Travis County, a JP has come under fire for issuing personal bonds in cases where defendants allegedly committed serious new crimes. She's standing up for herself in a way that wouldn't/couldn't have happened a decade ago.

Everyone at the Texas Lege wants to end the Driver Responsibility surcharge; will they?
Grits is more optimistic than ever that the Texas Legislature may finally end the Driver Responsibility surcharge this year. You couldn't find a legislative office supportive of the program if you squinted. And while it's not clear yet where they'll get the funds to subsidize trauma hospitals, a lot more people are thinking about it than they were a decade ago when your correspondent began banging the drum on the topic.  The Texas Tribune's Arya Sundaram had a good writeup of the politics of surcharge abolition this time around.

You look like a tall drink of water, or not
A Bell County judge issued a recommendation that George Powell be declared actually innocent in a case involving junk science used to estimate the defendant's height from a videotape. The Court of Criminal Appeals must agree before the decision is final.

Evaluating Justice Algorithms
Slate's philosophy podcast, Hi-Phi Nation, had episodes on predictive policing and risk assessments that're worth a listen. Also, here's a new academic paper on the implications of "dirty data" for predictive policing.

Why, if you shoot someone, you're likely to get away with it
The Trace and BuzzFeed News have produced a pair of excellent stories about police clearance rates in violent crimes: “Shoot Someone In a Major U.S. City, and Odds Are You’ll Get Away With It” and “5 Things to Know About Cities’ Failure to Arrest Shooters.”

Crime-deterrent benefits from traffic stops minimal

Traffic stop rates have little effect on crime prevention, found a study of drivers in Nashville.

Junk-science writ stalled in VA committee
In Virginia, a legislative committee shot down an effort to expand habeas-corpus authority to challenge false convictions when new science discredits old testimony that supported a conviction. Regular readers know Texas and California presently are the only two states to have enacted "junk-science writs." Texas has been more active using the writ, mainly because our active death penalty provides attorneys to defendants to mount such challenges in habeas writs; non-capital defendants don't get an appointed lawyer at that stage.