Thursday, May 05, 2016

The (weak) case for waiting 48 hours before questioning cops about shootings

The website lawofficer.com this week offered this defense of the rule giving police officers who shoot someone 48 hours before they can be questioned by their employer about the incident.
The call for the Portland Police Department to remove the “48 hour rule” that is currently required before an officer can be interviewed following a deadly shooting is another attack on law enforcement that may seem harmless to some but it is dangerous to the profession.

The demand made by a police oversight panel is just another uneducated, baseless request that makes no sense unless you want to harm law enforcement.

Of course the rule exists, hopefully in every agency, because of the sound research and past history of interviewing officers immediately after a critical incident.  One component of a high stress situation is a loss of memory.  Research calls it a “memory gap” and immediately after a shooting or other high stress event, those involved will often not remember details or misinterpret facts.  Those gaps begin to fill in and after a few days officers will have a clear picture of what occurred.

The importance of a 48-72 hour window after a critical incident is vital if you want an accurate depiction of what happened.  I have been there and witnessed it myself.  This so called “oversight committee” would have no clue and the only reason anyone would push for the elimination of this sound practice is to harm the reputation and/or indict more cops.
As Grits and others have pointed out in the past, if memory improves by waiting two or three days to question someone, why aren't suspects given time to compose themselves, speak to their lawyer, review any available video or other evidence, etc., before giving their statements? After all, their memories must be equally imperfect and "the only reason anyone" would want to question them sooner would be if they seek to "harm the reputation and/or indict" a presumed-innocent suspect, according to this way of thinking.

In the 70 or so agencies operating under Texas' civil service code, officers can't be questioned about any complaint against them, not just after critical incidents, unless they've been provided with a written copy of the allegations 48 hours in advance. And when they're questioned, interrogations "may not be unreasonably long." Moreover, as we saw recently in this case, if an officer reveals incriminating information when his or her employer does question them, those details can't be used in court.

By contrast, during the first 48 hours after a shooting, civilian suspects are often subjected to intense, lengthy questioning. As Dallas defense attorney Toby Shook has noted, "Police detectives often get very damaging statements from suspects shortly after the incident. At trial if the defendant’s story changes the prosecutor quickly argues to the jury that the defendant has changed his story and is lying."

Over time, these sorts of double standards breed understandable distrust.

If departments really believe memory is so fragile that their officers can't accurately recall incidents that occurred the same day, then the same protocols should apply to suspects. Otherwise, there's really no excuse for it beyond providing an additional layer of protection keeping bad cops from being held accountable for their misdeeds.

Tuesday, May 03, 2016

Nobody trying very hard to distribute crime victim restitution

Grits was glad KXAN-TV published their story on unclaimed awards to crime victims, but the "gotcha" journalism approach aimed at the local probation department was misplaced. They reported that "a KXAN Investigation discovered $22 million that actually belongs to Texans are sitting in state coffers and little is being done to make sure that money gets to its rightful owner."
The money comes from restitution payments ordered in criminal cases from courts across the state. If someone is arrested and charged for committing a crime against you, anything from breaking into your house or crashing into your car while driving drunk, chances are, the court will require the criminal to pay you money for damages or injuries you may have. But, many crime victims are never called to appear in court and are unaware they have money coming to them. State law requires the courts to notify you, but in some cases that person may never see the money.

KXAN obtained a list of crime victims Travis County says it can't find to give them their money. However, we found it's pretty easy.
Expensive to scale up
In what's a bit of a cheap shot from a journalistic standpoint, they proceed to locate several people with relatively distinct names on the list (e.g., "Ian Pirie") to demonstrate that, with some legwork, these crime victims could have been located via Google and social media.

But to scale that process up would require staff, and the probation department doesn't have it. Nor does the state pay them for that task, which is beyond the minimum statutory requirement for what they're supposed to do to locate crime victims owed restitution. Admittedly, the law's insistence on a certified letter to the last address as the sole mandated investigated tactic is needlessly limiting and anachronistic. But from the standpoint of how government historically has communicated with the public, it's pretty typical. And the alternatives being suggested aren't free.

According to the report, "California created an 'Unknown Victims Unit' that successfully located thousands of crime victims and handed out more than $9 million since 2010. Comptroller Hegar is now looking into how his office could do something similar." Presumably, that unit has dedicated staff whose job it is to do that. While it's probably a good idea, nobody at either the Comptroller's office or already understaffed local probation departments are paid to perform that function right now.

Victims a low priority
For at least three decades in American political culture, crime victims have been used mostly as fodder for tough on crime political salvos against candidates and advocates deemed too "soft." As the restorative justice movement has long understood, though, in reality the criminal justice system sometimes seems designed almost antithetically to victim's needs, right down to, clearly, not prioritizing victim restitution. Giving crime victims their money would be a good start but cannot resolve the more fundamental questions and dilemmas facing 21st century crime victims. Regardless, thousand mile journeys must begin with a first step.

Monday, May 02, 2016

Shortage of competency restoration beds a sudden, longstanding crisis

Texas' failure to finance mental-health services to sufficiently supply the vast volumes demanded by the justice system - in particular "forensic" beds for competency restoration at state mental hospitals - belatedly is receiving attention. Edgar Walters at the Texas Tribune has a fine story detailing the quandary state officials find themselves in regarding funding for criminal defendants' competency restoration at state mental hospitals. Here's an excerpt, which will ring familiar to long-time Grits readers:
State public health officials say there were 388 people on waiting lists for state hospitals as of April 1.

“Almost all of our state hospitals are currently at capacity, and we are admitting patients as soon as other patients are discharged,” said Christine Mann, a spokeswoman for the Department of State Health Services.

Meanwhile, more than half of state hospital beds go to people who have been ordered there under a “forensic” commitment through the criminal justice system. Texans who were found by a court to be not guilty of a crime by reason of insanity or who were considered incompetent to stand trial currently fill about 1,200 state hospital beds.

That leaves only about 1,100 beds available at any given time for people, like Contreras’ son, who seek treatment outside of the criminal justice system.
At the Houston Press Meagan Flynn had another recent story on the topic.

Grits is pleased the issue is receiving attention and that legislators have pledged to address the problem (though in the coming budget environment, one wonders whether that's possible). I'm puzzled, however, at commentary portraying this as some new problem that legislators just discovered. My theory is that Sen. Robert Duncan attempted to manage the situation for years and, when he left, the Lege lost important institutional memory on the topic.

Regardless, long waiting lists for forensic commitments to state mental hospitals have been a problem for years, as highlighted in this 2012 story from Eric Dexheimer at the Austin Statesman. And though I know that meager blogs seem to be falling out of fashion in the era of social media, this humble opuscule has been beating the drums on the topic nearly since its inception. For those interested, here's a sampling of Grits' writing on competency restoration topics over the last decade:

Saturday, April 30, 2016

Texas released 52% more violent offenders in 2014 than 2005

Texas prisons released 52 percent more prisoners convicted of violent offenses in FY 2014 than in FY 2005, according to the TDCJ annual statistical reports from those years. Comparing the number of people released in those two years we find:
TDCJ Releases 2005-2014:
Violent: 5,521 up
Property: 632 up
Drug: 2,756 down
Other: 2,612 up
In fact, in 2012 Texas released 69.4 percent more violent offenders than in 2005, so this is not a new trend, and it has coincided with a decline in the state's violent crime rates over the same period. (Go here for an hypothesis why releasing so many more "violent offenders" didn't increase crime.)

Perhaps Texas' example provides evidence that the act of pursuing "low hanging fruit" in the political arena can help change the political culture surrounding crime and punishment in ways that indirectly affect debates and policies about violent offenders. (The same thing can happen, Grits would argue, with "innocence" and capital advocacy.)

For example, Texas' legislative reforms in 2007 focused almost exclusively on nonviolent drug and property offenses, with updating property-theft thresholds in 2015 the only other significant decarceration reform in recent memory. Yet the number of violent offenders released annually from TDCJ went up more than 50 percent.

The makeup of the parole board didn't change much over this period and nothing in the '07 bill would have caused that. (There were elements aimed at reducing parole revocations, but they wouldn't have affected releases.) Instead, the political culture changed around crime and punishment and the board reacted.

And, it must be said, even with that increase, release rates remain low. Though people convicted of violent offenses make up the majority of Texas prison inmates, they constituted only 22.6 percent of 2014 releases.

Still, when it comes to state-level decarceration reforms, Grits disagrees with Fordham law prof John Pfaff's tactical assessment about whether to prioritize reducing incarceration for nonviolent offenses. To me, the only practical place to start in the legislative arena, particularly in a red state like Texas, is on issues where it's possible to secure bipartisan support. One can't extract blood from stone.

But he's right to point out that real, long-term decarceration solutions necessarily must eventually extend to people deemed "violent" offenders. Otherwise, growth in that nebulous category can easily swallow up any decarceration gains from nonviolent offenders. For example, look at some top-line data from TDCJ Annual Statistical Reports for 2005 and 2014 (latest available), during which time the overall prison population decreased by 1,852. Within that total, though, there was wide variation.
TDCJ On-hand:
Violent: 10,396 up
Property: 4,643 down
Drug: 5,679 down
Other: 1,299 up
Reductions achieved in property and drug offender totals were nearly entirely offset by the increased number of violent offenders, who as of Aug. 31, 2014 made up 55.6 percent of TDCJ's population totals.

Now let's look at only the new, incoming offenders in 2005 and 2014. With the number of new prison entries for property offenses nearly the same, the increase in new violent commitments entering Texas prisons in 2014 almost entirely offset the reduced number of new drug-offenders:
TDCJ Receives:
Violent: 3,616 up
Property: 212 up
Drug: 3,808 down
Other: 2,821 up
The difference is, violent offenders tend to have longer sentences, so the new violent offenders will take up prison space for more bed-years over time. TDCJ essentially soaked up another placement for a violent offense for every drug and property offender diverted.

So I agree with Pfaff's central insight but sometimes think his commentary overstates how much the political process can do to reduce incarceration of violent felons, especially in states like Texas which already don't have mandatory minimums. The parole board (appointed to six year terms by the governor) and commissioners they hire make release decisions and there's not much outsiders can do to affect them.

Pfaff's focus on sentence length ignores areas where sentencing reform can make a difference. Any offense shifted from felony to misdemeanor status eliminates the possibility of imprisonment and keeps entire categories of offenders from ever entering TDCJ. Those low-level offenses are disproportionately drug and property crimes, so changing them won't affect the "violent" numbers. But they're something the Lege can actually affect that would reduce incarceration in the near term. They can't do much about parole rates.

Political tactics aren't just about plugging numbers into an equation or model to maximize marginal results. There are too many flawed humans with weird, self-interested agendas involved, and too many institutions with narrow jurisdictions that can only affect parts of the problem. I don't blame a New York City-based law prof for issuing theories which fail to take into account Texas' particular institutions and their realms of control.

It's hard to argue, though, with Pfaff's call for reassessing how offenders are judged along the violent-nonviolent axis:
Pfaff added that the division of inmates into non-violent and violent is itself confusing and misleading. “Not all violent offenders are really all that violent, and not all non-violent are necessarily non-violent; it’s tricky to figure out who is who,” he said.

For example, Pfaff said, in New York state, burglars who break into a house when no one is home are still considered violent offenders. On the other hand, when Pfaff examined records of non-violent drug offenders, he found that many had a record of violent crimes from the past, or had physically harmed someone during the commission of their crimes.

Focusing on non-violent crime, then, is actually a somewhat arbitrary way to separate the incarcerated into good prisoners and bad prisoners—and to avoid dealing with the most pernicious ideology behind the incarceration binge.

“As long as we focus on non-violent people in prison,” Pfaff told Quartz, “it has the collateral consequence of suggesting we should just give up on the violent people, and that the violent people deserve whatever we do. And I’m not sure that’s entirely the right way to think about it. Violent people change, violent people age out of crime.”
That's right, but it's a far cry from what either the public or the political class believe at this particular historical moment. In the scheme of things, it wasn't very long ago that even recommending leniency for "nonviolent" offenders was a political nonstarter in this state and many others. That's easy to forget in the wake of the post-Ferguson focus on criminal justice reform in the last however-many months. Maybe there will be things possible going forward that in the past would have fallen outside the bounds of mainstream political debate. But it would be wrong to critique strategic and tactical decisions before that time based on what's possible going forward. Those are different things.

I don't think Pfaff's analysis changes much of Texas reformers' strategy in the near term, but it's a caution to enthusiastic decarceration advocates to adjust expectations. For the foreseeable future, the much-ballyhooed national #Cut50 campaign remains a pipe dream, certainly in Texas. Without significantly slashing the numbers of violent offenders, it's not possible to get close to that number.

Grits can't say how we'll get there, if, or when. But I do know that politics is the art of the possible. And decarceration won't happen if advocates ignore the things which are possible to focus on things which are not.

In the meantime, the good news is that, in Texas, the parole board already is releasing more violent offenders, anyway, and with violent crime dropping and the economy booming, it turned out no one noticed, cared, nor complained.

Thursday, April 28, 2016

Major conservative investment in criminal-justice reform

Remarkable. Dallas businessman Doug Deason and the Charles Koch Foundation are teaming up to fund a criminal-justice reform center at SMU. Reported the Dallas News (4/26):
Tuesday in Dallas, Deason announced that he and his family’s foundation donated $3.5 million to Southern Methodist University’s Dedman School of Law to create a legal institute that conducts innovative research and educational outreach efforts designed to promote criminal justice reform in Texas and beyond.

The Deason Family Criminal Justice Reform Center will conduct statistical and analytical studies ranging from pre-trial procedures, sentencing disparities and pre-trial diversion, abuses of asset seizure and forfeiture laws and wrongful convictions.

SMU Dedman Law Dean Jennifer Collins said the Deason gift combined with a matching $3.5 million contribution by the Charles Koch Foundation will fully fund the center, which will be located on the law school campus.

“We hope this center generates statistical research that is part of the national conversation about criminal justice reforms,” Collins said. “The plan is to bring in visiting faculty members who are experts and to get students involved in research and to generate course ideas that allow students to interact with the experts.”

“This tremendous opportunity is happening only because of Doug Deason’s passion for this issue and his passion for SMU,” she said.

Collins said the combined $7 million allows the law school to hire an executive director, an outreach director and additional faculty in the field.
In other news about reform investments, here's an item about Harris County's MacArthur grant and local efforts in Harris County (short of bail abolition or giving people lawyers at magistration, apparently) to reduce pretrial detention.

TDCJ will face 85th session with new leadership

Long-time TDCJ executive director Brad Livingston retired recently. Here's the job posting. If you're qualified, go for it.

With former TDCJ Chairman Oliver Bell replaced last summer by Dale Wainwright, Rissie Owens gone, and now Livingston headed out the door, change is wafting in the breeze in Huntsville these days. Whether it's a fair wind or foul remains to be seen, but the cast of characters is changing.

On the Dallas crime spike and the politics of over-interpreting small samples

Grits spoke yesterday with Stephen Young from the Dallas Observer about interpreting Dallas crime and murder rates and he generated this item from the conversation.

See related Grits coverage:

Wednesday, April 27, 2016

Grand jury not told shooter-cop was drunk, and other stories

Here are a few odds and end that merit Grits readers attention but likely won't make it into independent posts:
  • Celebrate your victories. In Houston on Friday, May 6, the Texas Indigent Defense Commission and other notables will hold a symposium on the 15th anniversary of the Texas Fair Defense Act.
  • The Hogg Foundation for Mental Health's Lynda Frost in 2016 has been on a one woman op-ed crusade on the topic of pretrial detention and mental illness. Here's her latest in the Houston Chronicle.
  • Here's a good item from the Texas Criminal Justice Coalition's Doug Smith on the occasion of "Reentry Week."
  • The Atlantic explored recently how license-plate readers target the poor.
  • Readers may recall Texas became the first state to require law enforcement to get warrants to read old emails in 2013. Now Congress may make that a requirement nationwide, including for federal agents.
  • Judge Spillane's Washington Post op ed seems to have emboldened municipal judges in other jurisdictions to speak out.
  • If this headline is true, "Carthage residents" should be ashamed of themselves.
  • In Houston, the DA's office never told a grand jury that an off-duty police officer who shot two brothers, one fatally, had downed six beers and a triple shot of whiskey before confronting the two men in a parking lot. "The reason: The courts have ruled that in internal police investigations, testimony officers are ordered to provide cannot be used against them in criminal proceedings." There's a loophole you can drive a truck through: Confess and they can't use the evidence against you. Grits understands the employment-law reasoning behind it, but who else gets that deal?
  • More biker bullshit out of Waco. For a while it fell out of fashion to refer to Waco as "Whacko," but DA Abel Reyna and the local judiciary in his thrall re-invite the term. The whole biker-shooting mess has been a travesty of justice and a public embarrassment from start to finish, incarcerating dozens of clearly innocent defendants and setting their bail at a million dollars each. Both higher courts and state officials, not to mention the US Justice Department, seem uninterested, unable, or unwilling to rein in one of the most extreme examples of government overreach in Texas since the Great Eldorado Polygamist Roundup. And all those Second Amendment groups who're supposed to be championing the rights of legal gun owners? Listen for their advocacy on this ... you could hear a pin drop. Why? Hard to understand why this hasn't been a bigger deal in terms of press and public opinion.
  • The Obama Administration proposed a "holistic" approach to confronting crime focused more on economics than incarceration. E.g., they estimate raising the minimum wage to $12 would cause a 3-5 percent reduction in crime rates. See Washington Post coverage and the presentation given at the White House this week by the Chairman of the President's Council of Economic Advisers.

Body cameras and the purpose of law enforcement

My wife, Kathy Mitchell, who incidentally joined the staff of the Texas Criminal Justice Coalition at the beginning of this month, has been working on the issues surrounding local policies police departments must enact governing use of body cameras under Texas' new statute passed in 2015. She authored this item reacting to debates with city staff in Austin surrounding whether to view body camera footage primarily as evidence in criminal cases or also as a police accountability tool. See also her earlier commentary on bodycams.

What is a “law enforcement purpose?” Pretty straight forward. We have a police department to solve crimes and keep the public safe. But is accountability to the public a part of that job? In Texas, where officers shoot people at higher rates than NYC or Chicago, it should be, but that idea is very much up for debate.

Today’s news that APD Chief Art Acevedo has been reprimanded, with five days lost pay, for talking too much about the officer-involved shooting of David Joseph, does not bode well.

In a refreshing move from the perspective of those who have watched many investigations of officer involved shootings drag on for a year or more, Chief Acevedo moved quickly to complete an investigation that resulted in the termination of Officer Geoffrey Freeman.

At issue: Did Officer Freeman reasonably fear for his life from a “charging” but naked and clearly unarmed teen?

What if Officer Freeman had been wearing a body camera? And what if the video had been released immediately, or even upon completion of the internal investigation? Then everyone in Austin would now have detailed factual information about exactly what happened. Instead of debating whether Chief Acevedo talked too much, we could be debating the real issues around police use of force.

The police union defends Freeman based on a framework for the use of force that is long overdue for change. After years of work, the Police Executive Research Forum, a national law enforcement standards group, last month released new principles for use of force that could make the public and police officers safer.

But first we need to overcome the information problem. We cannot come together as a city around reforms if we don’t move towards a shared information framework. That is the promise of body camera video if it is released.

Austin City Council will move forward in mid-May with a proposal to contract with Taser for an initial 500 police body cameras. APD’s pilot of the Taser technology has already been completed and the contract will be completed quickly once Council approves the expenditure. But right now, we don’t have policies in place that will result in public access to the video.

The state law governing body cameras allows for a great deal of secrecy surrounding body camera video.
(a) Except as provided by Subsection (b), a recording created with a body worn camera and documenting an incident that involves the use of deadly force by a peace officer or that is otherwise related to an administrative or criminal investigation of an officer may not be deleted, destroyed, or released to the public until all criminal matters have been finally adjudicated and all related administrative investigations have concluded.

(b) …

(c) This section does not affect the authority of a law enforcement agency to withhold under Section 552.108, Government Code, information related to a closed criminal investigation that did not result in a conviction or a grant of deferred adjudication community supervision.
What does all that mean? That depends.
  • If an officer is actually prosecuted for a crime (Officer Kleinert in the Larry Jackson shooting is the only example of that in the past decade) then the video can be held in secret for years until all appeals have been concluded. If the officer is not convicted, the video can be permanently sealed.
  • If the DA takes the issue to a grand jury and the grand jury declines to recommend prosecution (the Travis County Grand Jury has “no-billed” three officer involved shootings and a taser incident so far this year) the video may be released by the DA’s office at the time of the grand jury decision – typically a year or more after the incident. This is discretionary; not all counties release this information.
  • If there is a complaint after an incident but the DA does not take the case to the grand jury, then it is most likely the city would never be required to release video because the details of administrative procedures can be kept closed under civil service law. (Govt. Code 143.089(g))
But in between the two paragraphs above, the statute also says this: “(b) A law enforcement agency may release to the public a recording described by Subsection (a) if the law enforcement agency determines that the release furthers a law enforcement purpose.”

The statute fails to define “law enforcement purpose” in this context. Worst case, APD could release video that reflects well on its officers and not release more troubling video. The public would never know why APD selectively released some videos and not others.

But Austin can decide that transparency and accountability are “law enforcement purpose[s]” which will trigger public release of all body camera video after a critical incident (shootings, injuries). A calendar for such release (say, within 10 days of providing it to all parties in any criminal or administrative case) would give both the public and APD officers confidence that every case will be treated the same way.

Public trust built on transparency and accountability are clearly “law enforcement purposes” in the aftermath of Chicago's experience. Chicago launched lengthy court battles to prevent public release of videos showing police shoot Cedrick Chapman and Laquan McDonald. Austin must be different, and our decisions on this front will be critical to creating public confidence in the city's body camera program.

CCA: No safety element required for police to stop drivers on lane-change violations

TDCAA's John Stride thinks Lemon v. State "may be one of the more significant traffic stop decisions that the [Texas Court of Criminal Appeals] has issued."

The issue before the court, wrote Stride, was "Does failure to maintain a single lane of traffic while driving need to be considered 'unsafe' before it can constitute an offense under §545.060(a) of the Transportation Code?" The result: "A plurality of the court agreed that a driver does not have to both fail to maintain a single lane of traffic AND attempt to move from that lane in an unsafe manner before it can be considered an offense. Either of these actions is enough to support a police officer’s stop and temporary detention."

Read Judge Yeary's plurality opinion, a concurrence by Judge Richardson, and dissents by Judges Keasler (joined by Johnson and Hervey, of all combinations) and Newell in a case which split the court along unusual fault lines, and for that reason may be worth particular attention.

Stride's commentary notes that this prosecution-friendly decision overturned prior precedents:
Failure to drive within a single lane of traffic is a very common reason for stopping motorists, especially in driving while intoxicated (DWI) cases. This decision expressly disagrees with two prior court of appeals decisions and will be very helpful for law enforcement. The court re-emphasizes (if it still needed emphasis) that an officer does not need probable cause, but only reasonable suspicion, to conduct a traffic stop. The court also upheld the officer’s actions based upon reasonable suspicion to investigate for DWI. All prosecutors need to read this decision.
Some liberty-oriented legislator ought to take a closer look at this. There should be some public-safety reason for dubbing lane wobbling a traffic offense; otherwise, this just becomes an almost-universal pretext to pull people over. Bad decision from a preserve-the-Fourth-Amendment perspective.

Monday, April 25, 2016

Nueces jail overcrowding caused by pretrial detention

In Nueces County, the Sheriff is raising the alarm about jail overcrowding problems. But the reasons being suggested for high inmate numbers don't really explain things. "Some reasons for the spike include a reduced number of referrals to medical facilities, increases in arrests for criminal trespass in the new RTA building across from city hall and cases waiting to be presented to a grand jury, said court administrator Marilee Roberts," according to a report in the Corpus Christi Caller Times (April 19).

A quick look at the latest Texas Commission on Jail Standards inmate population report from Nueces County shows that assessment was a misdiagnosis. Like most other crowded jails in the state, the real trouble in Nueces is excessive pretrial detention. A whopping 60.6 percent of Nueces jail inmates were incarcerated awaiting trial as of April 1st. Further, a full 22.5 percent of inmates are misdemeanor defendants incarcerated pretrial, compared to only 9.5 percent statewide.

By contrast, in April 2006 only 21.7 percent of Nueces jail inmates were incarcerated awaiting trial, and only 3.2 percent of Nueces County inmates were pretrial misdemeanor defendants. Nueces would have no jail overcrowding problem if they'd kept pretrial detention at those levels.

At this point, Nueces County has 4 percent of the state's incarcerated pretrial misdemeanants but only 1.3 percent of the state's population.

Jail overcrowding in Nueces County amounts to a self-inflicted wound. While some local officials want to use the situation to promote new jail construction, really what's needed is greater accountability for judges and prosecutors who're allowing the jail to be misused in this fashion.

Sunday, April 24, 2016

HIV rates highest in Huntsville, and other stories

Just to clear my browser tabs, here are a few odds and ends that merit Grits readers' attention.
  • Walker County is the administrative and historical epicenter of the Texas prison system. It also is the county with the highest HIV prevalence rate in the state and nation, by far. This news brings to mind a study Grits mentioned awhile back which found that, "Areas surrounding Texas Department of Criminal Justice prison facilities have higher HIV rates than those that do not." That study found that, “With increasing distance from TDCJ prison units, the HIV infection rate of the general public decreases.”
  • Brandi Grissom at the Dallas News had a story on mentally ill people waiting months in jail for compentency restoration services at Texas state mental hospitals.
  • At The Nation, Debbie Nathan takes a deep dive into "What happened to Sandra Bland?"
  • The Texas Inmate Family Association has launched a petition calling for expansion of diligent participation credits toward earlier probation eligibility.
  • Bernie Tiede's new 99-year sentence raises the question, "Is life in prison just the death penalty on the installment plan?"
  • At Texas Monthly, Michael Hall reviewed the new documentary, "Southwest of Salem: The Story of the San Antonio Four."
  • A former federal prosecutor had a column in the Startlegram this week declaring, "Here's a path toward fixing problems with civil asset forfeiture."
  • Two economists writing in the New York Times opined that "a general rule in economics — the law of diminishing marginal benefits — applies to incarcerating additional people or adding years to sentences. Research finds that more incarceration has, at best, only a small effect on crime because our incarceration rate is already so high. As the prison population gets larger, the additional prisoner is more likely to be a less risky, nonviolent offender, and the value of incarcerating him (or, less likely, her) is low."
  • This academic paper suggests a five-part approach to confronting prosecutor misconduct including, "(1) centralized review by a statewide panel; (2) identification of misconduct through appellant opinions; (3) evaluation of the circumstances and seriousness of the misconduct; (4) tiered discipline proportionate to the misconduct; and (5) the prosecutor’s right to respond and seek modification of the discipline proposed."
  • The Republican National Committee approved a resolution calling for decarceration and criminal justice reform. 
  • Read the case for repealing the federal Prison Litigation Reform Act.

Saturday, April 23, 2016

Wood weighs in on collections rules for Class C misdemeanors

For years, Ted Wood was the go-to expert on fines and fees at the Texas Office of Court Administration's General Counsel's office; he likely has forgotten more about the topic than most lawyers will ever know. Now he's an assistant public defender in Harris County. Grits asked Ted's opinion on the recent letter by Judge John Bull, highlighted in this post, and reforms being debated aimed at reducing burdens from Class C fines and fees on indigent defendants. He responded thusly:

From Ted Wood, Assistant Public Defender, Harris County
Here are my thoughts on: (1) Judge Bull’s letter; (2) the Buzzfeed article about Judge Bull’s letter; and (3) your analysis of the letter and the article in your Grits column of April 21, 2016.  You can consider this to be “on the record.”

FIRST, you have identified the main problem.  The main problem is Article 45.0491 of the Code of Criminal Procedure which reads as follows:
A municipal court, regardless of whether the court is a court of record, or a justice court may waive payment of a fine or costs imposed on a defendant who defaults in payment if the court determines that:
(1)    the defendant is indigent or was, at the time the offense was committed, a child as defined by Article 45.058(h); and
(2)    discharging the fines and costs under Article 45.049 [i.e., discharging the fines and costs by performing community service] or as otherwise authorized by this chapter would impose an undue hardship on the defendant.
There is a parallel statute that you did not mention.  The parallel statute is Article 43.091 of the Code of Criminal Procedure.  This statute deals with courts other than municipal courts and justice courts.  In other words, this statute deals with district courts, statutory county courts, and constitutional county courts.  The language of this statute is almost identical to Article 45.0491 discussed above.  Article 43.091 is set out below:
A court may waive payment of a fine or cost imposed on a defendant who defaults in payment if the court determines that:
(1)    the defendant is indigent or was, at the time the offense was committed, a child as defined by Article 45.058(h); and
(2)    each alternative method of discharging the fine or cost under Article 43.09 or 42.15 [discharging fine and costs through the performance of community service] would impose an undue hardship on the defendant.
As you pointed out in your analysis, “judges don’t have authority to declare them [defendants] indigent, according to that reading of the law.”  I might add this: “that reading of the law” is correct.  Judges may not waive court costs at sentencing.  Rather, judges may only waive court costs once a defendant has been ordered to pay court costs and then defaults on that obligation. Also, judges may not authorize a defendant (other than a child) to perform community service until a defendant has been ordered to pay court costs and has defaulted on that obligation.

I am in 100% agreement with your following statement:
The Legislature could help things a lot by deleting the four above italicized words [who defaults in payment] from the statute, clarifying that muni judges can waive fines and fees for indigence at sentencing and don’t have to wait until the indigent defendant has failed to pay.
Your idea needs to be expanded to delete those four words in both the statutes I set out above so that all judges (not just municipal judges) can waive fines and fees for indigence at sentencing.  The law also needs to be changed to permit judges to order defendants to perform community service (in lieu of paying a fine) at sentencing. 

This is currently permitted for children. See Article 45.058(h) referenced in both statutes set out above.  For example, one of my sons pleaded guilty to a speeding violation in the Leander Municipal Court when he was sixteen years old.  He asked to be able to perform community service instead of paying the fine and court costs because he did not have the $165 that was required.  The judge, appropriately, allowed him to perform community service which my son did go on to perform.  This was a totally appropriate action by the judge.  But the judge would not have been able to let my son do this if my son had been one year older (17).  This is because this type of action is only permitted in cases involving children – not adults.

So I am wholeheartedly with you on getting the statute changed. 

SECOND,  I am a member of the advisory committee to the Judicial Council along with Judge Bull, Judge Spillane, and several others.  We have been tasked with proposing changes to the current Collection Improvement Program rules.  We have not been tasked with suggesting legislation.  According to your quote of Judge Spillane, he said something about “creating legislation.”  I think this is exactly what needs to be done – exactly as you have suggested and exactly as Judge Spillane has said.  But this is not what the advisory committee has been asked to do.  Rather, the advisory committee has been asked to change the collection program rules.  I don’t think changes to the collection program rules really solve any problems.  The statutes still don’t allow for judges to waive court costs and that is what we need to do to solve the problem.  As Judge Spillane said (as stated in your article), “judges need to be free to exercise proper discretion by assessing alternative punishments like community service or waiver of fines for indigent defendants.”  Legislative changes are going to be necessary to give judges this freedom.

The members of the advisory committee are to provide suggested responses to the committee chair (Justice of the Peace Bill Gravell of Williamson County) by April 29th.  (Judge Gravell is also a member of the Texas Judicial Council.)   I have not yet written out my response – maybe I will just send in this letter.  In any event, I expect to say that what we need is not so much a reworking of the Collections Improvement Program rules as a change to the statutes as described above.

THIRD, I share Judge Bull’s feeling that courts should not exist to bring in revenue.   Courts should not, to quote Judge Bull, “be viewed as ‘cash cows’ as opposed to places where people can receive a fair and impartial hearing on their cases.” But, with all due respect to Judge Bull, I think his broadside against the Office of Court Administration (OCA) is misdirected.

The Legislature had directed OCA to operate a Collections Improvement Program (CIP). See Article 103.0033.  OCA is only doing what the Legislature has required.  I strongly disagree with Judge Bull’s suggestion that OCA’s Collections Improvement Plan is “encouraging courts to jail people who don’t pay.”  Here is what Judge Bull wrote:
In fact, the “analysis” implies that “‘community service” is an option, but “credits for jail time should be limited to cases in which a  defendant refuses to pay or perform community service, but has the ability to do so.”  The language in the analysis could be read in such a way that encourages courts to jail people who don’t pay.
It could?  How can this language be interpreted to encourage courts to jail people who don’t pay?  I understand this language to put a limitation on the situations in which a person can be jailed for non-payment of fines and court costs.  This limitation is precisely in line with Article 45.046(a) of the Code of Criminal Procedure which says:
(a) When a judgment and sentence have been entered against a defendant and the defendant defaults in the discharge of the judgment, the judge may order the defendant confined in jail until discharged by law if the judge at a hearing makes a written determination that:
(1) the defendant is not indigent and has failed to make a good faith effort to discharge the fine and costs; or
(2) the defendant is indigent and:
(A) has failed to make a good faith effort to discharge the fines and costs under Article 45.049; and
(B) could have discharged the fines and costs under Article 45.049 without experiencing any undue hardship.
See also Article 43.03(d) of the Code of Criminal Procedure for the equivalent statute applicable to courts other than municipal courts and justice courts.

The past practices in El Paso that you also discuss in your April 21st article were absolutely wrong.  Defendants were being jailed without regard to the limitations set out in Article 45.046(a).  But OCA is not encouraging this practice.  In fact, OCA is discouraging the practice.  Here, Judge Bull takes a statement from OCA about the limitations on jailing defendants and somehow twists it into an encouragement by OCA that courts jail people who don’t pay.  This is not at all what OCA is suggesting.

I just hate to see OCA and its Collections Improvement Program dumped on.  OCA is not the problem.  The Collection Improvement Program is not the problem.  The problem is that the current statutes do not allow for the waiver of court costs up front.  The problem is also that the current statutes do not allow a judge to order that a person perform community service in lieu of paying fines and court costs up front.  The problem is also that some courts were improperly jailing people.  Again, this improper jailing is not something that OCA and the CIP are advocating – at all.  To the extent that Judge Bull suggests otherwise, I part ways with him.

But my final word is this – although I disagree with parts of Judge Bull’s letter, he is a fine man and an excellent judge.  I look forward to working with him and others on the rules advisory committee.

Ted Wood
Assistant Public Defender
Harris County Public Defender’s Office

Friday, April 22, 2016

Texas cops shoot people at higher rates than Yankees

According to this chart (which was crafted from this data), people who live in Houston, Austin, Fort Worth, or Corpus Christi are more than four times as likely to be shot and killed by a police officer than someone who lives in New York City, Philadelphia, or Detroit. People in Arlington are six times more likely to be killed by police than Big Apple residents.

For our Okie readers: those living in Oklahoma City were five times more likely to be killed by law enforcement than residents of Tulsa.


Source.

Thursday, April 21, 2016

'Crime wave' talk aside, Texas crime way down, say the numbers

Note to Dallas reporters writing panic-stricken stories about a "crime wave" because of a short-term spike in murders: Please read this analysis from the Brennan Center about crime in America in 2015. (Here's the full pdf version of the report.) Then calm the *bleep* down.

Bottom line, crime remains "at historic lows" and increases in violent crime used to tout some sort of "Ferguson effect" last year were overstated.

In terms of murder rates, "The 2015 murder rate rose by 13.3 percent in the 30 largest cities, with 19 cities seeing increases and 6 decreases. However, in absolute terms, murder rates are so low that a small numerical increase can lead to a large percentage change" (emphasis added).

Beyond murders, "Overall crime rates in America’s 30 largest cities were nearly identical from 2014 to 2015, according to an analysis of final 2015 numbers. Crime declined over that time period by 0.1 percent. The data show that crime rates remain at historic lows nationally, despite recent upticks in a handful of cities.

Looking back at 2015 as a whole, "Two-thirds of cities saw drops in crime, which were offset mostly by an increase in Los Angeles (12.7 percent). Nationally, crime remains at all-time lows."

And when we talk about violent crime, the effects are quite isolated: "Violent crime rose slightly, by 3.1 percent. This result was primarily caused by increasing violence in Los Angeles (25.2 percent), Baltimore (19.2 percent), and Charlotte (15.9 percent). Notably, aggravated assaults in Los Angeles account for more than half of the national rise in violent crime."

Of Texas cities included in their analysis:
  • Houston's overall crime rate dropped 4.9 percent from 2014 to 2015, with violent crime declining 2.4 percent; murders up 23.1 percent.
  • Dallas' overall crime rate dropped 4.5 percent from 2014 to 2015, with violent crime increasing by 4.1 percent; murders up 7.7 percent.
  • San Antonio's overall crime rate dropped 5.2 percent from 2014 to 2015, with violent crime increasing 11.8 percent; murders are down 10.4 percent. 
  • Austin's overall crime rate dropped 9.8 percent from 2014 to 2015, with violent crime declining 8.6 percent; murders are down 33.1 percent.
  • Fort Worth's 's overall crime rate dropped 8.0 percent from 2014 to 2015, with violent crime declining 2.7 percent; murders up 7.0 percent. 

Again, when considering murder rates, it can't be overemphasized that, as stated before, "in absolute terms, murder rates are so low that a small numerical increase can lead to a large percentage change." That's what's happening in Texas. It's safer to live here right now, essentially, than anytime during your correspondent's adult lifetime.

MORE: The Atlantic last week ran a story questioning, "What caused the great crime decline in the US?" For those seeking answers to this surprisingly difficult question, see:

AND MORE: From the Texas Tribune.

Buzzfeed kicking ass on TX muni courts as revenue generators

Kendall Taggart and Alex Campbell at Buzzfeed have done a great job over the last year or so covering Texas cities' and counties' use of Class C misdemeanor offenses as revenue generators that result in de facto debtors prisons when municipal and county jails are used to leverage payment from defendants of limited means.

New El Paso litigation
Yesterday they reported on new litigation filed by the Texas Civil Rights Project in El Paso. (See TCRP's complaint.) That article gave this description of the litigation:
The two plaintiffs in the suit, Carina Canaan and Levi Lane, were profiled in the BuzzFeed News investigation that found El Paso municipal court judges had routinely jailed people for unpaid traffic tickets. State law and two U.S. Supreme Court decisions bar courts from jailing people simply because they are too poor to pay their fines. Judges must first assess whether defendants have the money to pay, and if they do not, judges must offer them the chance to perform community service instead.

Canaan has never earned more than $8 an hour, according to the lawsuit. She started driving to school before she was old enough to have a license and quickly racked up $3,000 in tickets. She spent 10 days locked up to pay them off, while pregnant with her first child, but still owes additional fees that make it impossible to get her license.

Lane could not afford to keep his car insured and registered, but he said he had no choice but to keep driving: Public transportation shut down before his shift at a pet food factory ended. He racked up five tickets, totalling more than $3,400 in penalties, and was finally arrested. He could have avoided jail time if he had paid the fines on the spot, but he made only $8 an hour and had outstanding student loan debt. He was sentenced to three weeks in jail, during which he lost his job.

The lawsuit seeks an order prohibiting the city from jailing people who are unable to pay as well as compensation for people who have previously been jailed under those circumstances.

The city of El Paso did not immediately respond to a request for comment.

Though it is El Paso judges who impose the jail sentence, El Paso’s city council created the 25% down payment requirement. In an interview last year, presiding Judge Daniel Robledo told BuzzFeed News he did not support it. “I think that’s wrong,” he said. “In fact anybody that goes out there, anybody that’s in my court, to me there’s no such thing as 25%.
Judge Bull calls 'bull' on OCA collections program

Another recent article by this pair adumbrates a remarkable letter from San Antonio municipal court Judge John Bull to the Office of Court Administration.
Judge Bull was writing to protest a little-known state program that oversees the collection of court fines and fees for traffic tickets and other low-level offenses. The state takes about 30% of those fees, a cut that last year amounted to $236 million.

Bull’s letter says that the program puts municipal courts under “constant pressure to bring in ‘revenue.’”

Officials are “applying ‘best practices’ that might be relevant for banks or credit card companies,” he said, but that are “oppressive” in courtroom settings. In a memo to Bull’s court, a state collections specialist wrote that judges should devise “strict payment plans with the goal of collecting the largest amount of money in the shortest period of time, based on the defendant’s ability to pay.”

David Slayton, who heads the Texas Office of Court Administration, responded to a question about Bull’s letter by saying the state does not look to the courts as revenue sources. He pointed out that judges have discretion to waive fines for defendants who cannot afford them. “By the time it gets to the collections program,” Slayton said, “we should only be dealing with people who have the ability to pay.”
That last bit isn't entirely correct. In Dallas, for example, the city has advised municipal judges they may only reduce fines and fees for indigence after defendants have been sentenced, failed to pay, and have gone into default, not at the time the sentence is imposed. That guidance stems from Art. 45.0491 of the Code of Criminal Procedure, which specifies that courts "may waive payment of a fine or costs imposed on a defendant who defaults in payment" (emphasis added).

So the collections program is dealing with precisely defendants who cannot pay and have not yet been declared indigent. Until they default, judges don't have authority to declare them indigent, according to that reading of the law.

The Legislature could help things a lot by deleting the four above-italicized words from the statute, clarifying that muni judges can waive fines and fees for indigence at sentencing and don't have to wait until the indigent defendant has failed to pay. That's not the only legislative fix that needs to be done, but it's an important one.

And speaking of legislative changes, I asked Judge Edward Spillane from College Station what he thought about Judge Bull's letter and he replied to say Bull and other judges may soon get a chance to rewrite that statute:
I and many judges have read the letter and look forward along with Judge Bull and other interested parties to working with OCA on May 19th as part of an advisory committee to the Judicial Council to create legislation to ensure the Collection Improvement Plan takes into account that judges need to be free to exercise proper discretion by assessing alternative punishments like community service or waiver of fines for indigent defendants.
So that's a significant opportunity on the legislative horizon; there's a lot of momentum to reduce pressure from Class C fines and fees on low-income people, reduce the number of offenses they're penalized for, enhance judges' discretion to address noncompliance, etc.. The 85th Texas Legislature will be an interesting historical moment in which to be confronting these questions.

New rules extend payment plans, clarify requirement 'does not apply' to indigents 
Finally Taggart and Campbell recently published an item on new rules aimed at "designed to keep people out of jail when they can’t afford their traffic tickets." By their account:
Texas officials have proposed extended payment plans for people struggling to pay their fines and fees.
The Texas Judicial Council has also made it explicit that the state’s collection demands do not apply in cases where a defendant is found to be too poor to pay. ...

The new rules, which were approved by the judicial council last month, could take effect later this year. ...

Two municipal judges who spoke to BuzzFeed News said they felt the state Office of Court Administration’s previous rules put too much pressure on cities to collect fines and fees, creating burdensome requirements that made it harder for them to exercise their discretion and waive fees when it was in the interest of justice.

“We have judges for a reason — if we wanted this to be done by formula, we would get computers,” said one judge, who requested anonymity out of fear that state officials would retaliate by auditing his court.
Grits uploaded the new rules to my Google drive, for those interested.

Nice reporting by Taggart and Campbell; this is an important and little-covered beat and they're doing a good job with it.

Wednesday, April 20, 2016

Indigent defense costs growing rapidly, remain insufficient

Yesterday, Grits spent some time listening online to the portion of the March 21st Texas House Criminal Jurisprudence Committee meeting devoted to indigent defense topics. Here are a few highlights.

Texas Indigent Defense Commission executive director Jim Bethke was the main witness and had several observations worth relating. Overall, about 55% of criminal defendants receive appointed counsel, Bethke said. The statewide felony appointment rate is just more than 70 percent; the misdemeanor rate is 44 percent.

Counties indigent defense costs have risen dramatically since the passage of the Fair Defense Act in 2001. Over most of the next decade, filings increased even though crime declined. But even in recent years, when filings have finally begun to go down, appointment rates for indigence continue to rise. There are several reasons for that, he opined:
1. State oversight and greater transparency and accountability since creation of the Fair Defense Act and the Indigent Defense Commission.

2/3: Two major lawsuits: Rothgery v. Gillespie, 2008, defined when right to counsel is triggered. After that ruling, counties couldn't wait until indictment was issued to appoint a lawyer (ed. note: though implementation was mixed and spotty). Also influential was a class action suit against Williamson County regarding people charged with misdemeanor cases not getting counsel assigned. In that suit, the Texas Supreme Court ruled in favor of the Fair Defense Project which eventually secured a favorable settlement. As a result, Williamson's misdemeanor appointment rate rose from 8 percent to around 46 percent last year.

4. New legislation clarifying that prosecutors cannot solicit waivers of counsel from defendants in order to interrogate them.
(One might also add the fact of the 2008 Great Recession, the prevalence of low-wage jobs, the collapse of oilfield employment, and the large number of people facing collateral consequences from prior offenses as contributing factors to defendants' rising need for appointed counsel.)

Bethke said that misdemeanor appointment rates are lower in part because it's cheaper to hire a lawyer for low-level cases. But he also granted that for many years there has been a culture in Texas of not appointing counsel in misdemeanor cases, even though it has been required since 1972. Appointment rates for misdemeanors range by county from a low of about 25 percent to between 60 and 70 percent on the high end, he said.

The passage of HB 1318 gave Texas new data, Bethke pointed out. (See prior Grits coverage.)  The Texas attorney with the most appointed cases reportedly disposed of 1,353 cases last year. That would mean that lawyer pled out 4-5 cases every single day the courthouse is open.

The highest paid court appointed lawyer in the state last year made a total of $497,000 from fees paid for representing indigent defendants. That's an exception, though. The median paid to attorneys receiving cases was just over $16,000, Bethke told the committee. On average, attorneys who take appointments spend 57 percent of their practice on those clients..

Chairman Herrero said he found the growth curve on indigent defense costs "alarming." What's even more alarming is that Texas' indigent defense spending remains markedly low. Texas spent $238 million total on indigent defense in FY 2015 and $209 million of that came from the counties. Texas was 48th or 49th per capita on indigent defense spending when the Fair Defense Act was passed in 2001; we've moved up a couple of slots since then to 45th or 46th. But, per capita, we're #10 out of the ten largest states.

Bethke said about half of states fully fund indigent defense in the state budget; two-thirds of states fund at least half or more of indigent defense costs. Texas is the largest state for whom indigent defense is primarily a county responsibility. Under the governing federal case law, indigent defense is not a "state" nor a "county" responsibility but a "government responsibility," he declared.

Chairman Herrero suggested that the charges brought are "state v. defendant" so it should be state who pays for indigent defense. Grits prefers counties have some skin in the game. They already get to offload costs of high sentences onto the state through incarceration costs. I don't necessarily agree that counties should get to prosecute folks for free.

I do agree attorneys must be adequately compensated. Bethke gave these figures for average appointed attorney fees per case (2015): $651 for a felony; $208 for misdemeanor; juvenile $394. (This is a pittance: One recalls that when Rick Perry faced criminal charges, he spent more than $2 million on his defense team.)

Texas A&M's Public Policy Research Institute received a $400K to create a "smart indigent defense web portal," Bethke noted.

Rep. Joe Moody suggested that, in addition to payment, the state should be more transparent about defense lawyers with sustained findings of ineffective assistance of counsel! There's an interesting thought. (Meanwhile, Judge Alcala wants to grow the list!)

Rep. Terry Canales suggested that, because of increased border enforcement by DPS and other agencies, more crimes are being prosecuted in the border region and so local indigent defense costs are going up.

Bethke noted that Hidalgo County recently had TIDC grant funds taken away because of a juvenile court judge. All appointments go to two attorneys and none go to the juvenile public defender office Sen. Hinojosa passed legislation on the topic giving public defenders preference. But TIDC won't renew their indigent defense grant until that judge changes his practices.

Jim Allison, General Counsel, County Judges and Commissioners Association, fears we're headed for a "constitutional breakdown" because of counties differing capacities for providing indigent defense. One reason for rising appointment rates, he said, is that in the past counties had been neglecting to make appointments they should have been making and now are doing a better job.

Allison contends that reliance on county funding creates an inherent inequity. County funding comes from property taxes. State funding, by contrast, comes mostly from special fees on bail bondsmen and lawyers. (Ed. note: Last session, the Lege did for the first time put in a small amount from General Revenue.) Allison contended the constitutionality question is parallel to school funding issue: The need for funding does not correlate to the tax base.

Becky Bernhardt of the Texas Fair Defense Project talked about how effective counsel can be measured. Two not-very-sufficient measures used most commonly, she said, were speed and money. If a system runs fast, people probably aren't getting effective representation; too slow and people sit in jail. The fluidity of the process makes the "sweet spot" hard to judge.

Too little money is often used as an indicator but it's also not perfect. TX went from 49th to 47th in spending since the passage of the Fair Defense Act, she said, but even spending much more money on the current system would not ensure good outcomes.

She recommended the committee focus on the American Bar Association's 10 principles for a quality indigent defense system, honing in on these particular element where Texas faces challenges:
  • Independence
  • Caseload management
  • Appointing lawyers early in the case, timeliness
  • Adequate funding
  • Parity: Defense lawyers need investigators and experts
  • Training and supervision

She also referred the committee to the Texas State Bar's Performance Guidelines for attorneys in non-capital cases to help answer the question of how to judge appointed attorneys' work. Among the outcomes for effective representation, policy makers should look at dismissals, acquittals, the length of sentences defendants are getting, whether they're getting access to diversion, and then compare those outcomes to retained cases.

The Texas Public Policy Foundation's Marc Levin told the committee their priority should be to reduce the number of jailable crimes in Texas. He suggested shifting penalties for low-level marijuana possession from a Class B to a Class C would reduce indigent defense costs. (He also endorsed expanded use of cite-and-summons law.)

Levin said that Texas Supreme Court Chief Justice Nathan Hecht had appointed him to a committee to evaluate Texas' criminal statutes to identify offenses that should be reduced. Upon hearing this, remarkably, Rep. Leach requested from Levin a list of 100 offenses the Legislature should reclassify! Now there's a Tea Party conservative unafraid to embrace a decarceration agenda to save counties money!

MORE: While we're on this topic, I should mention that the Indigent Defense Commission's dataset on county-level indigent defense has grown into a truly awesome resource, right down to providing attorney-level data searchable across counties. If it weren't for all this amazing documentation they've generated (and the legislature's agreement and authorization, it should be added), we'd never know that lawyers disposed of up to 1,353 indigent criminal cases in a single year or pocketed nearly half a million dollars for representing poor people. Texas may not be willing to adequately fund indigent defense, but we're documenting the hell out of the underwhelming job we're doing.

AND MORE: See coverage of the hearing from the Texas Association of Counties.

Monday, April 18, 2016

Alcala: Legislature should mandate appointed counsel on habeas IAC claims

Texas has done such a poor job of providing recourse to indigent defendants with ineffective trial attorneys, Judge Elsa Alcala observed in a recent dissent to the denial of a habeas corpus writ, that the federal courts have begun allowing state prisoners to bypass state courts entirely, filing ineffective assistance claims in federal habeas writs without state courts having to rule on them. (See an academic paper assessing Texas' position on this topic.)

In this particular writ, the defendant spoke only Spanish and was denied an interpreter at trial because his lawyer said it would distract him. At least two other state Supreme Courts have ruled that there's no valid reason based on trial strategy to deny a defendant an interpreter and Alcala felt as though the petition might have been colorable if not for "nonsensical" prose and circular argumentation in the handwritten, pro se brief.

Although eight states appoint counsel for every indigent habeas petitioner, according to her opinion, Alcala isn't calling for all habeas corpus petitioners to get attorneys. Instead, she's focused on those pursuing ineffective assistance of counsel claims, which effectively are not cognizable via direct appeals and may only be addressed for the first time in habeas writs.

Because numerous states including Texas provide little or no adequate means for redress when defendants receive ineffective assistance from their lawyers, federal courts have changed their practices, said Alcala, specifically to respond to "deficiencies" exhibited in the Texas system. She wrote:
Given its recognition that an initial state habeas proceeding undertaken without effective assistance of counsel would effectively deprive Texas defendants of any meaningful review of their ineffective assistance claims, the Supreme Court crafted a federal equitable remedy that would permit such claims to be raised and adjudicated for the first time on federal habeas review.
Translated from lawyer-ese, that means SCOTUS declared that defendants could raise the issue in their federal habeas petition even if it the state courts haven't ruled on it. In other words, state high courts weren't exercising their power responsibly on this question so SCOTUS ruled they could be bypassed, reducing state power at the expense of the federal courts.

Alcala takes what to my mind is effectively a strong 10th Amendment stance: Texas courts should handle Texas' business. Her enthusiasm for judicial revanchism, though, wasn't universally shared by her colleagues.

Judge Keller responded defiantly (for her, anyway; the Presiding Judge possesses an extraordinarily genteel manner) in a concurrence to say that Texas' statutes are "firmly in the mainstream" when it comes to appointing counsel for habeas writs. That may be true. But Judge Alcala countered that the law doesn't mean much when the CCA fails to acknowledge the rights granted, whether in the constitution or by statute: "The problem in Texas is not that existing statutes fail to permit this Court to ensure that counsel is appointed to assist applicant in pursuit of his ineffective-assistance-of-counsel claim," she wrote, "but rather is that this Court generally does not utilize those statutes in such a way as to ensure that counsel is appointed for indigent habeas applicants who have colorable ineffective-assistance claims, based either on the substance of the pro se pleadings or in light of the record."

Alcala (and Johnson, who joined her dissent) is basically calling out her colleagues for not doing their jobs. And the implication seems to be that their motives lie outside the case record and have little to do with the legal issues involved. There's an extraordinary moment in the opinion where Alcala gingerly declared: "It has been suggested that Texas already spends enough money on the representation of indigent defendants and enough is enough." N.b. the passive voice and the lack of specificity surrounding who made that suggestion: this is not something being declared in legal briefs but in the judges' chambers behind the scenes. Alcala is pretty clearly reacting to economic anti-taxation arguments she's hearing in conference, which don't actually have much to do with the merits of the case.

Judge Keller believes the CCA grants habeas writs sufficiently often to prove IAC claims are being adequately vetted, offering these data regarding the CCA's habeas docket: "in fiscal year 2015, we remanded 388 habeas cases to the trial court for hearings or affidavits addressing the claims. Most remanded applications are remanded on ineffective assistance claims and most, by far, are filed pro se. We granted relief in 184 cases in FY 2015." Judge Alcala responded that "these cases constitute a very small percentage of the 4,698 habeas applications that were filed in that year." She declared herself "unpersuaded" that petitioners' "occasional success ... renders this project unworthy of our attention."

If the CCA won't fix the problem, opined Alcala, the Legislature should step in: "Until there is action either by the Legislature through statutory enactments," she wrote, "or by this Court through judicial decisions that would expand the availability of appointed counsel on collateral review in order to effectuate the constitutional right to the the effective assistance of counsel at trial, defendants' ineffective-assistance claims will largely go unaddressed."

Sunday, April 17, 2016

On the geography of asset forfeiture and the growing effort to restrict it

Check out a new report by the Texas Public Policy Foundation's Derek Cohen on geographical asset forfeiture patterns. (See the press release.) Declared the abstract,
insight into the volume and location of forfeitures is telling. It reveals where the practice may be overused, establishing a reliance on the proceeds of the legally dubious practice. Further, it also shows where and when standardized per-capita localities are aggressively pursuing more forfeiture, regardless of size. This report aims to demonstrate spatial patterns of forfeiture in raw  and per-capita terms, and highlight potential misconceptions and problem areas.
Basically, forfeiture's geography follows the population and highways where law enforcement finds particularly enticing targets of opportunity. A subhed summarized: "Aggregate Forfeiture Use is Similar to Population Distribution." That's mainly notable because it contradicts pro-forfeiture rhetoric about the practice combating drug traffickers. Cohen found that "Forfeiture is not common across the full length of the border" and instead it "is used most extensively along or near highways."

Forfeiture happens on highways for several reasons: Partially, it's from traffickers transporting cash payments for drugs back to Mexico. More typically, though, forfeitures happen at roadsides because a) traffic stops represent the majority of interactions between Texans and police and b) traffic stops represent a particular point of vulnerability for drivers because the Supreme Court has declared their Fourth Amendment rights in that setting are minimal and easily bypassed.

That said, though forfeiture volumes are greatest in cities, per-capita forfeitures are higher in rural areas, again mostly following highway patterns: "the amount of per-capita forfeiture activity tends to be greater outside of the major urban centers. This is doubly so in rural areas along major and minor highways, where it is not uncommon for a jurisdiction of only a few thousand Texans disproportionately forfeit tens and even hundreds of thousands of dollars per year."

As an aside, here's an interesting excerpt from the report's introduction about the difficulties of researching forfeiture patterns:
Much has been written admonishing civil asset forfeiture in Texas. From the conservative Texas Public Policy Foundation (Cohen 2015; 2014) to the libertarian Institute for Justice (Bullock and Carpenter) to the liberal Texas Appleseed (McDonald), groups have taken umbrage with the practice’s abhorrence to the rule-of-law, disregard for basic property rights, and disproportionate effect on certain communities. 
Still, defining just how much civil asset forfeiture occurs in Texas is impossible. Currently, Chapter 59 of the Texas Code of Criminal Procedure (Art. 59.06) mandates that agencies that engage in asset forfeiture only report topline summaries of the value of what is forfeited to the Office of the Attorney General (OAG). Further, until the 84th Legislature’s regular session had concluded, the OAG was not required to aggregate or publish this information (HB 530). Previous legislation seeking more transparency in the process had been defeated, garnering opposition from those that directly benefit from the practice.Thus, it has yet to be shown where forfeiture (of any stripe) is occurring in Texas, specifically those benefiting law enforcement; the quintessential “policing for profit” allegation.
For related content, see also this video from the Koch Institute and the Texas Public Policy Foundation's recent forum on asset forfeiture policy where Derek presented his findings. And here's an item from Watchdog.org interviewing him on the topic. That story mentioned the little-discussed interest of the Arnold Foundation on forfeiture issues which piqued Grits' interest:
The threat helped prompt the Laura and John Arnold Foundation in Houston to establish the Coalition for Public Safety last year.

In an editorial for the Dallas Morning News last year, the Arnolds dared suggest that one reason no one in Texas government is eager to raise the bar for asset seizures is how much the current system benefits law enforcement.

“Civil asset forfeitures have become a critical source of funds for many budget-strapped police departments and district attorneys’ offices throughout the state,” they wrote. “ We agree that forfeiture should be available to law enforcement. But not in its current form.”

If not in its current form, what form? Last year New Mexico and Montana became the first two states to require a conviction for law enforcement to take possession of cash and property involved in crimes.
Grits had earlier predicted asset forfeiture reform would be in play when the Texas Legislature convenes in 2017, and these developments are all evidence that reformers, particularly on the conservative end of the spectrum, are busily gearing up for that fight. TDCAA may need to do more than mock conservatives this time around to stop their momentum.