Williamson DA out to weaken probation system

I hate drama this late in the legislative session.

During the hearing Thursday on HB 2193, which would strenghten Texas' probation system, the Statesman's Mike Ward reports that aides to Governor Perry proposed gutting amendments to the bill. The proposals were apparently supplied by Williamson County District Attorney John Bradley, the only bill opponent who spoke at the hearing. The Senate Criminal Justice Committee, though, passed the legislation last Thursday in the same form in which it passed the House. Now it heads to the Senate floor in the next couple of days.

Bradley's amendments would have whittled the bill back to almost nothing after House floor amendments already removed most of the budget benefit, scaling back the estimated savings this biennium by $37 million. Mr. Ward couldn't help but inject more unnecessary drama into the Statesman story, though. Here's how he spun the events:

"Rejecting a last-minute rewrite by Gov. Rick Perry and potentially risking his veto, the Senate Criminal Justice Committee on Thursday approved the House-passed plan to reform Texas' probation system."

That was Ward's lede, even though it's HIGHLY doubtful Gov. Perry himself had anything to do with this "last-minute re-write." Indeed, the only person in the story predicting a veto is actually Mike Ward! He quoted Perry spokesperson Kathy Walt further down declaring that the proposed amendments did NOT presage a veto threat.

"I wouldn't say that," she quickly added. "We're going to look at it when it arrives on his desk and make a judgment call at that time. . . . That's not for me to say."

Ward's been doing a good job covering the probation topic -- his coverage has been more thorough than any other MSM reporter. But the MSM has its own biases, too, and this one is typical: they're biased toward spins on their stories that 'sex them up,' to use the British phrase, to maximize the appearance of conflct and drama that sells papers and attracts viewers.

In retrospect, Ward could have just as easily attributed the committee's rejection to Williamson DA John Bradley, who spent an hour or so before the hearing huddled with the Governor's staff in the hall outside the meeting room. He was the only person to testify in opposition. (At the time he spoke, the gutting amendments had apparently just been sprung on Whitmire out in the hall.) Bradley's suggested changes were more or less identical to those Ward attributed to the Governor - in particular, disallowing early release if a probationer has any new crime above a traffic-ticket-level offense, or for probationers who are behind on their fees.

Both those proposals seem basically mean-spirited, even counterproductive. They certainly have nothing to do with public safety. Judges already may revoke probation for a B misdemeanor, and under the proposed statute they would not be obligated to offer early release to such a probationer. HB 2193 trusts judges more than prosecutor John Bradley does; it gives judges discretion to decide what is best for society after reviewing the probationer's record in detail for compliance.

Similarly, the proposal to refuse early release because of unpaid fees essentially criminalizes poverty. As Chairman Whimire said to Bradley, "We can't be sending people to prison because they can't afford to pay their fees." Bradley said he was more worried about restitution to victims than fees, but his proposals belie his words -- anyone who hadn't paid off all their extant fees would have to remain on probation, risking being sent to prison, solely because they were poor.

Bradley also objected to a provision allowing judges to decide not to impose community service time as a condition of probation. Chairman Whitmire, he pointed out, carried the legislation in 1993 that required judges to impose community supervision, and Bradley thought the Legislature should establish a floor for such requirements. "Judges are irregular, arbitrary, and inconsistent" about assigning community service, he said.

Sounds like Mr. Bradley has a lot of respect for the jurists before whom he practices, huh?

By contrast, Dana Hendrick, a 32-year system veteran who runs the probation department for three judicial districts in the Texas Hill Country, said community service requirements sometimes hinders probationers success by getting in the way of their day-to-day activities necessary to turn their lives around. He disputed the need for minimum community service requirements, arguing the discretion was appropriate and warranted.

Hendrick told the committee HB 2193 was "innovative," but also just "baby steps." It's "not that dramatic," he said. There's "nothing in here objectionable to me as a practitioner."

Academic and former Criminal Justice Policy Council staffer Pablo Martinez testified that shortening probation terms would improve public safety. People don't need to be on probation longer than three years, he said, since virtually every recidivist will re-offend by then. Probationers need the most supervision right away, immediately after the offense, he said, not 5-10 years down the line. Martinez said 41% of those revoked from probation in Texas were for technical violations.

That figure jibes with those given by Chairman Whitmire when he laid out his bill. About 25,000 Texans each year enter prison after their probation is revoked, he said -- 10,000 of them for technical violations, not new offenses. (Some 12,000 more are revoked each year from parole.)

Whitmire said that, for him, this bill isn't about saving money but strengthening supervision of offenders. The Senate's budget authorized $57 million in new probation program money, and another $62 million to house 3,000 more prisoners in county jails and private facilities. So there's no evidence, he said, the Legislature won't spend what's necessary for public safety; he just wants to focus resources to provide offenders more oversight. The current version would lower probation officer caseloads from 150 to 116 each -- still higher than experts recommend, but an improvement.

My ACLU colleague Ann del Llano testified that interim studies in both the House and the Senate prior to each of the last two sessions recommended these steps to strengthen community supervision. In two hearings on the House bill, she said, the bipartisan legislation was unopposed -- Bradley and the other DAs ignored the process for months before swooping in at the eleventh hour to try to kill the bill.

Surveys of probation departments, judges and prosecutors by the Legislative Budget Board recommended similar solutions, Ann reported. Even the U.S. Justice Department recommends similar probation improvements in the system. These ideas are based in research and evidence, she said, not ideology. Like Hendrick, del Llano said it was possible to "over-supervise" probationers, larding on so many requirements they couldn't function normally in the community. This legislation applies more oversight on the front end of probation, rather than spreading resources over a decade for each probationer. It's impossible to diligently supervise that many probationers (450,000 statewide) for that long. As a private citizen in his eighth year of probation put it, "to defend against everything is to defend against nothing."

A few other DAs hovered outside the meeting room (a couple where there on different topics), but Bradley was the only one offering testimony against the bill. Otherwise, a wide array of groups were there to support it, including the NAACP, LULAC, the Texas Public Policy Foundation, the Texas Inmate Family Association, the General Baptist Convention of Texas Christian Life Commission, Restorative Justice Ministries Network, the Reentry Roundtable, Texas Catholic Criminal Justice Ministries, the Texas Criminal Justice Coalition, and the Texas Justice Network, among others.

Now it's on to the Senate floor, where a vote should take place early this week. Will prosecutor John Bradley succeed in thwarting stronger probation? If this bill is gutted or killed and the prisons overflow with 3000 more inmates every year than we have room for ... who will be to blame? Will Texas ever start to fix its broken criminal justice system? Should we follow the DA's lead and declare "Dumb on Crime" the new state motto? Stay tuned. We'll know the answers before long.