Saturday, April 30, 2005

Case study for probation reform

If you ever wonder why Texas' probation reform is necessary, consider this blogger's plight. The writer has been on probation eight years for a "crime against self, not society," but may wind up being sent to prison for two years if the prosecutor wins a revocation motion based on technical violations. Her husband is deceased, she has custody of a minor child, she's caring for an aging grandparent, and after eight years of paying fees and playing by the rules, she faces possible prison time without having been convicted of another crime. Welcome to Wichita County justice.

The idea behind probation reform is to shorten the length of probation, to give probationers incentives to earn their way
off probation with good behavior. The only reason to keep a probationer on for eight years is because they keep paying fees and haven't done anything wrong.

UPDATE: See the Statesman's Mike Ward's new piece on probation reform status, including an interesting chart showing current felony probationers' offenses. See also this supportive editorial from the Corpus Christi paper.

Observer looks at Hearne debacle

A gag order was placed on attorneys on both sides of ACLU's lawsuit against the drug task force in Hearne, but nobody gagged the Texas Observer, which has a good cover story on the suit in their current issue.

The Texas Legislature in 2001 passed legislation
banning uncorroborated confidential informant testimony in undercover drug stings, largely in response to the instance in Hearne, plus similar uncorroborated testimony by sheriff's deputy Tom Coleman in Tulia that also convicted innocents. This session, legislation to get rid of these type of drug task forces passed the House and is scheduled for a Senate hearing in the Criminal Justice Committee on Tuesday.

Not just for criminals anymore

Criminal law in Texas is not just for criminals anymore, says Marc Levin of the Texas Public Policy Foundation's Center for Effective Justice. His new policy brief, "Not Just For Criminals: Overcriminalization In The Lone Star State," (pdf) argues that too often Texas law merges criminal and tortious behavior.

Levin says 779 Texas statutes contain the word misdemeanor, while just 64 of those are in the Penal Code or the Code of Criminal Procedure. The word felony, he said, appears 418 times in Texas statutes, but just 64 are in the Penal Code or the Code of Criminal Procedure. Aside from statutes barring convicted persons from employment or other benefits, most of those other statutes, Levin said, apply criminal penalties in areas such as agriculture, healthcare, natural resources and insurance.

(Texas LULAC last year tallied 1,941 separate acts that have been declared felonies, but many of those were separate acts delineated within the same code.)

Levin examines bills in the 79th Legislature that criminalize the following areas:
  • General business activities
  • Regulated business activities
  • Occupational licensing
  • Non-economic activities
  • School discipline
His conclusion: Texas needs to reverse the trend toward criminalizing these areas. He suggests several approaches:
  • Avoid creating new crimes in the first place.
  • Utilize civil fines instead of misdemeanors
  • Utilize civil penalties to enforce civil laws
The last suggestion may be a surprise to some, since TPPF has long been a strident advocate for Texas' tort reform movement. Levin acknowledges some conservatives will fear a trial lawyer bonanza, but says "there are many ways to avoid such excesses," such as limiting causes of action to individual, not class action cases, capping claims, and requiring binding arbitration, with judicial appeal limited to the question of whether an arbitrator's decision was an "abuse of discretion."

I'm gonna quibble with Mr. Levin on that last point. I don't know much about tort law, but I've watched enough bad cops routinely get their jobs back on Texas police forces through binding arbitration under Texas' civil service code that the idea makes me wary. Personally, I'd prefer such judgments be made by, well, elected judges, so if the public thinks a judge abused his discretion, they can oust the sumbitch in the next election.

Other than that, though, I broadly agree with Levin's overarching argument in his brief. His focus on criminalizing business activities is a welcome addition to liberal analyses of overcriminalization. Personally I welcome the debate over whether criminal or civil liability is deserved in those instances -- on the environment, for example, I want the air and the water clean, but I harbor no vindictive fantasies about imprisoning corporate executives over it (I'm speaking here of pollution regs, not Enron-style fraud).

Though he doesn't mention it, Levin's call for civil instead of criminal approaches to resolving society's conflicts meshes nicely with concepts of "restorative justice" that are gaining popularity among prison ministries and even some prosecutors. According to this view, what's needed isn't always to vindictively punish. What's often needed is for the offender to acknowledge guilt and to make
the victim whole.

Levin provides an appendix (pdf) detailing several Texas bills he considers examples of overcriminalization trends (a comprehensive list would be a small book), and even created a checklist for legislators (pdf) to determine whether a new crime needs to be created. Interesting stuff, and more fodder for Doc Berman's thesis regarding a "new right" on sentencing reform.

Friday, April 29, 2005

High drama, low profile; an ode to bipartisanship

The agenda for our weekly 7 a.m. ACLU legislative team meeting this morning was jam packed. There are lots of high drama situations playing out right now on a huge array of criminal justice and civil liberties issues at the Texas Legislature, but the bulk are so sensitive, and the politics so complex and fluid, that it wouldn't be prudent to discuss them. Frustrating for me, and likely for readers, too. But it's deal cutting time at the Lege, and it's amazing how interdependent are almost all the issues this blog covers.

This late in the legislative session, every day your bills are still alive is a good day. Here are just a few of the good bills criminal justice reformers are backing that still have legs as April grinds to a close:
  • Probation reform. (Passed Senate committee)
  • Requirement for written consent to search at traffic stops. (Passed Senate, headed to the House.)
  • Racial profiling data repository. (Passed Senate committee, on intent calendar)
  • Marijuana sentence restructuring. (Passed House committee, in Calendars waiting for floor vote.)
  • Discovery by defense counsel of informant deals. (Passed House committee, in Calendars)
  • Barring prosecutors from solciting waivers of counsel from defendants. (Passed House committee, in Calendars)
  • Right to carry a legal weapon in a personal vehicle. (Passed House, in Senate committee)
  • Needle exchange opt-in for local governments (Passed second reading in Senate, on intent calendar)
  • Defense to prosecution for doctor-recommended medical marijuana (Hearing held, awaiting House committee vote)
Meanwhile, compared to prior sessions, only a small handful of bills increasing prison sentences have passed. Most of them have been bottled up in the Senate. No chicken counting yet, but a lot of the issues this blog discusses are at least being taken very seriously at the Lege this time around.

I've gotta tell you, I hear a lot of liberals these days complaining that the Republican majority behaves maliciously and votes in lockstep. But that's not the case on criminal justice reform. I honestly think Texans should be proud of what's happening there, especially of the folks on the main committees handling these topics. With a few exceptions, there isn't a lot of partisanship exhibited in those debates on either side. For the most part, everybody's looking for solutions in good faith, just coming from different perspectives.

Liberals talk a lot about "diversity," but we often don't tolerate well the kind of diversity that really matters -- diversity of opinion. On criminal justice reform, it's often possible for people coming from different ideological places to reach the same conclusions, perhaps for different or at least only partially overlapping reasons. If you're okay with that -- if you can live with somebody voting with you, but not for the REASON you prefer -- and if you're willing to compromise, you can get a lot done at the Texas Lege.

You can't tell Republicans not to be Republicans. But you can ask them to do good things for Republican reasons. Most of them, at bottom, really want to.

The Real Cost of Prisons

As America's prison population continues to swell, folks interested in incarceration, community supervision and prisoner re-entry topics will be pleased to discover the Real Cost of Prisons Weblog, operated by the D.C.-based Sentencing Project.

Thursday, April 28, 2005

Burglary of a vehicle debate over. Whitmire wins.

The debate about making burglary of a vehicle a felony (stealing items from a vehicle, not auto theft) is over. It ain't happening this time around.

The Senate Criminal Justice Committee, under Chairman John Whitmire's watch, has bottled up bills that would increase prison sentences for vehicle burglary like HB 151 and HB 1324. Today, instead, that committee passed out SB 1874,
introduced just last week and cosponsored by every member of the Senate, to add preventing car burglaries to the duties of the Texas Automobile Theft Prevention Authority. It would not, however, increase penalties.

That's a bold statement about the Senate's intentions on the matter. One would think it's time for House members looking for last-minute prison sentence increases to turn their attentions elsewhere.

Meanwhile, Ann brings the word that SB 1266 - Texas' long-awaited probation reform package, also passed out of the Criminal Justice Committee today. (UPDATE: See SA Express News coverage here.) Congrats to all involved: It was an enormous job, and to my mind a skillful balancing of interests, in the end, by the committee. Maybe this weekend I'll get around to adumbrating the bill.

Brotherly blogging

I'm embarassingly late finding out my own brother started a blog -- Wondering Thoughts. He's a baptist preacher who just last year launched a new church up in Denton County. Give him a look see. And welcome to the bloggerhood, John!

Senate consents to consent search restrictions

Big news!!!

Legislation to require written consent to search vehicles at traffic stops where officers have no cause to search passed the Texas Senate this morning on the local and consent calendar! Congrats are in order to Sen. Hinojosa and his staff. See prior Grits coverage
here and here.

When the City of Austin began requiring written consent last year, the number of drivers agreeing to give up their rights
declined 63%. Four other states and the California Highway Patrol have banned consent searches entirely. Hopefully the passage of the Senate bill will give the idea momentum now to make it through the House.

The House bill, which is joint authored by Representatives Dutton and Hupp, has already had a hearing and is pending in House Law Enforcement. Rep. Hupp sits on that committee, so with the Senate's near-unanimous affirmation, the bill should get a vote. I'm really excited it has a chance. The bill would be a great first step toward restoring Texans' long-since trampled Fourth Amendment rights at traffic stops.

UPDATE: Check out the engrossed version of the consent search bill.

In other satisfying news, Hinojosa's SB 1125 also passed the Senate this morning on consent. That bill would rein in rogue drug task forces that refused to come under the supervision of the Texas Department of Public Safety - more fallout, essentially, from the Tulia and Hearne scandals. A South Texas drug task force that would be affected by the bill tried to attack Hinojosa in the press, releasing police footage of a traffic stop they said inspired his bill. But Hinojosa has spent years imposing accountability on rogue task forces, so the charges didn't stick. Obviously the Senate sided with their homey.

New tools may prevent hiring gypsy cops

Regular readers know a lot about "gypsy cops," which I've previously defined as "a peace officer who floats from department to department regardless of, or because of, misconduct or poor job performance." The Texas House today will consider on second reading HB 2677 by House Law Enforcement Committee Chairman Joe Driver, R-Garland, designed to prevent "gypsy cop" scenarios where an officer leaves a law enforcement job because of misconduct, then pops up a few miles down the road working for another little po-dunk department.

The most famous Texas "gypsy cop" was Tom Coleman, the one-time "law enforcement officer of the year" from the infamous Tulia drug stings, who was convicted of perjury in January. But there are plenty of other examples.

HB 2677, and its companion SB 1303 by Seliger, would alter the termination form filed with the state licensing agency to create a new category designating officers who were not fired, but who also were not honorably discharged - e.g., they left while an investigation was underway against them rather than face the consequences of their actions. It's not enough to notify the agency when they've been convicted, which is what happens now. Police officers are almost never even indicted for any but the most severe misconduct, and then only where evidence is over-the-top obvious, so in nearly all instances the investigation is merely dropped when the officer resigns.

In addition to gathering this information, the bill also requires departments to request the form in question (the bureaucratic name is an F-5 form), before hiring a new officer. In discussions last fall before the bill was filed, it became apparent that many chiefs and sheriffs were too lazy to do even a minimalist background check on new officers, much less to ask with the licensing agency for anything. This legislation will require them to check.

Four years ago I worked on a bill altering the same section of the code, SB 1583 by Van de Putte/Hinojosa, which made the termination notice public in cases where officers were fired for "excessive force or violations of the law." Before that new law, nobody except cops and the state had even seen the F-5 form, though its contents were laid out in the statute, so it wasn't until the first forms became available under the Public Information Act that it became apparent (to anybody outside law enforcement) how inadequate and useless they were currently.

This bill would give police chiefs, sheriffs, and supervisors information to identify bad cops BEFORE they get on the force, if they use it. That's a much needed change. It might have been stronger, though, if the form had just been made a public record -- that way, the media and the public could hold departments accountable for poor hiring practices, and there would be more incentive to perform due diligence and make sure they could justify new hires. If right now smaller departments just don't perform background checks, many may not respond to the new designation by following up and asking more questions. This is a great start, though, and will give police supervisors an important new tool to protect their departments from bad influences, if they care to.

Kudos to the Texas Municipal Police Association, which conceived the legislation and worked it through the process. At ACLU, we butt heads with those guys a lot, but this is a really good bill.

Wednesday, April 27, 2005

Push to kill probation reform rebuffed

The Statesman's Mike Ward says the opposition to probation reform from a small but vocal minority of prosecutors and judges has finally shown up at the Lege, but it's awfully late in the game, and so far nobody's buying their schtick.
Countered one lawmaker, in what is a growing sentiment at the Big Dome: “Sounds to me like judges and some other folks have figured out they may have to start doing their jobs better. No sympathy here.”
Ouch! Stay tuned, folks, we're in the homestretch. SB 1266 was left pending today again in the Senate Criminal Justice Committee. See the latest versions of the House and Senate bills, check out earlier Grits probation reform coverage here, and Ward's overview of probation reform here.

Keel stops draconian license-suspension policy

I've been giving Austin Rep. Terry Keel a hard time lately about criminalizing camera phones in movie theaters, but I sure was glad to hear he shot down HB 1081 by Driver yesterday on the House floor. That legislation would have suspended the drivers license for people who failed to appear before a magistrate after receiving a traffic ticket.

Since most people charged with failure to appear simply didn't have the money to pay their tickets, HB 1081 would disproportionately affect the poor, piling additional hardships on top of an already obviously unbearable financial burden.

ACLU and other civil rights groups missed the bill as it made its way through committee, where it passed without opposition, but Keel stepped up from out of nowhere, I'm told, to expertly argue it down. It was postponed until May 4 -- not technically dead, but not likely to move this session, either.

Since I've been critical about his committee's passage of new penalty enhancements, it behooves me to offer a hearty "thank you" to Chairman Keel when he's fighting the good fight. In this case, he did the state a great mitzvah.

Fair use out the window

Film students, teachers, reviewers, or just cinema fans who capture a few seconds of Sin City in a movie theater on their camera phone would become felons on the second offense under SB 481 by Wentworth/Keel, which passed on second reading in the Texas House yesterday. Because there's just not enough stuff that's illegal already.

I guess it's only national Republicans who don't like Hollywood. This bill is little short of a legislative love letter to the big movie studios.

That said, why Hollywood movie companies would want to punish people who took small clips of a movie in order to promote it is beyond me - their insistence on broad language, I'd think, runs counter to their interest in promoting
priceless word of mouth publicity. ACLU proposed an amendment to fix it, but the movie industry opposed the insertion of a fair use provision. Unless it's vetoed, SB 481 likely represents Texas' 1,942nd felony. See Grits' previous writeup here.

Tuesday, April 26, 2005

El Senador vs. the 'Narc Pirates'

Greg Moses has a piece in Counterpunch, the lefty online journal edited by Alexander Cockburn and Jeffrey St. Clair, about the intimidation tactics against state Sen. Juan "Chuy" Hinojosa by a South Texas drug task force. See Grits' writeup of the incident here.

Thanks, Greg - I appreciate you taking up for El Senador.If we don't defend folks who file good legislation when they're attacked for it, especially in such an underhanded way, how in the world can we expect them to help us next time around?

Startlegram: Lege gone to the blogs

Rep. Peña's blog evangelism earned more coverage for political bloggers in the Fort Worth Star Telegram today, an email from my brother informs me.

They named Grits one of a half-dozen "popular" political blogs covering the Texas capitol. You know blogs are still an underdeveloped medium when 600 readers per day makes you "popular." Luckily, you are all precisely the right readers. ;-)

What do you say when it's all been said before?

The Texas Senate Criminal Justice Committee today will consider the committee substitute for SB 1266 by Whitmire -- Texas' long awaited probation reform package, adjusted to account for substantial public input. I'd planned to analyze the bill and several proposed amendments, but since other obligations precluded it (Catonya read the 101 page bill, she announced in the comments!), I've gathered together some past Grits posts regarding what's arguably the most important home-grown Texas criminal justice reform so far in the 21st century.

University free speech bill finally moves

Well, if gays can't marry, at least legislation moving in the Texas House will ensure they get to complain about it on college campuses.

More than six weeks after its
hearing, the Texas House Higher Education Committee yesterday passed out HB 487 by Chavez, which mandates that universities must use the least restrictive means possible in regulating time, place and manner of free speech on campus. Last session, identical legislation was scheduled for a vote on the House floor the day the Democrats left for Ardmore.

This time around, the bill ran into some trouble when it was portrayed
early on as protecting racist speech targeting immigrants at UT Austin. Apparently, though, strong bi-partisan support, along with a public education effort portraying free speech as an American value, not liberal or conservative, revived the legislation.

Thanks to Chairman Geanie Morrison and the Higher Ed Committee for kicking this thing out. If everybody stays in town, maybe it can pass this year.

Monday, April 25, 2005

Town hall meeting in Hearne

I couldn't go, and didn't blog Friday, so I forgot to mention the town hall meeting in Hearne, TX, on Thursday in support of the defendants in the ACLU litigation against the drug task force in that town. I heard it went well.

A federal magistrate judge recently cleared the way for ACLU to go to court in the Hearne case. Ann has posted the recent rulings by the judge in favor of ACLU against defendants' summary judgment motions.

Using camera phone at movie theater Texas' most likely 1,942nd felony

The criminalization of civil life continues this week with robust enthusiasm.

On Tuesday the Texas House will consider HB 1871 by Keel, which would make
operating an audio-visual recording device inside a theater while the movie's running Texas' 1,942nd felony. Under the current language of the bill, you don't even have to be recording the movie -- you could point a camera phone away from the screen to take a video snippet of your friends, and it would still be a crime.

Mike Ward reported on the Statesman's legislative blog when the Senate approved its companion, SB 481, which makes the same offense a Class A misdemeanor on the first offense, a state jail felony on the second offense, and a third degree felony on the third offense. Clay Robison at the Houston Chronicle also covered it.

House Criminal Jurisprudence Committee Chairman Terry Keel's House companion
makes the same act a state jail felony no matter how many times you do it. The Motion Picture Association of America wrote the original legislation, and both versions raise serious concerns about overreach. Camera phone users: Beware the Premiere Patrol, Adina noted.

A Grits commenter had an update on the House bill. The blogger over at Stone Bridge lives in Keel's district. He saw Grits' post and wrote to Rep. Keel. Here's his
somewhat fulsome letter. Keel personally responded to say he planned to fix one of the problems with a floor amendment.
A reporter shared the proposed language with ACLU, which states the device would have to be operated "with the intent to record the motion picture."

That's a lot better, but there's still
no "fair use" provision in the bill - recording inside the theater for one second, even for non-commercial purposes, is enough to trigger the charge. The current version would punish even the film teacher who captured 20 seconds of Sin City to show her class the cinematography. That sort of non-commercial recording used to be protected and legal under the "fair use" concept, but Keel's bill would criminalize it and make it a felony.

That's why, to me, if you're going to create a brand new crime of previously legal behavior, it should start as a misdemeanor, not a felony -- the "felon" label harms folks more, in the end, than their time spent incarcerated. There's no sense pinning that tag on teenagers who snip 20 seconds of a movie with their cameraphone. Plus, a misdemeanor charge would send new prisoners to the county lockup instead of Texas state jails.

The bill is unnecessary, anyway. Congress just passed a new law that punishes illegally recording a movie with three years in federal prison, and selling the recording with 6 years. Why not let the feds pay to incarcerate these offenders?

Plus, if folks are actually stealing the movie as part of a commercial piracy operation, they can already be prosecuted under existing felony theft statutes. Keel told his constituent that Grits "incorrectly stated that the act was already illegal," but movie piracy is illegal now. This law is an add on that makes the use of a piece of technology illegal, much like trying to criminalize using a VCR instead of merely enforcing copyright restrictions. It's intended to be piled on top of other charges. On that score, the plain language in both the House and Senate bills states:

If conduct constituting an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.
That sounds to me like the redundancy is contemplated. Otherwise, why would it be there?

As a writer, I'm sympathetic to the argument that those who produce creative works are entitled to profit from them. As drafted, though, this law overreaches to criminalize conduct that has nothing to do with movie pirating, and imposes serious penalties for minimalist copying that historically would have been considered "fair use." The floor amendment will help, clarifying that recording is illegal only if it records the movie. Lower the punishment to a misdemeanor and add a fair use provision, then I'd feel a lot better about it.

Sunday, April 24, 2005

Self promotion: Task force op ed in Houston Chron

The Houston Chronicle yesterday ran an op ed I authored regarding the demise of Harris County's Byrne-grant-funded drug task force. See also Grits' earlier write-up.

Police don't want to improve profiling data

Never judge tea leaves, I think is my lesson here. I'm not very good at it. Earlier, Grits suggested that civil rights groups and police were "within spitting distance" of an agreement regarding SB 1503 by West -- which would fine tune Texas' racial profiling law to set uniform data standards and create a central repository for the reports.

Boy was I wrong. A couple of law enforcement types testified in favor of the bill -- the El Paso chief said they already gathered all the new data the bill would require, including linking racial profiling data to the badge number of the officer writing the citation, and they'd had no ill effects. The bill's cause wasn't helped by testimony by academics from the University of North Texas, which would house the new repository. I've been working closely on this issue for five four years and I barely understood what they were talking about. No way the senators did. I testified on behalf of ACLU of Texas, and the other civil rights groups were represented. But the bulk of the hearing was taken up by the unions, police departments, the Sheriffs Association, and a litany of cops attacking the bill as though it were some radical departure.

It's really not. Texas departments are already required to gather racial profiling data at traffic stops. That's what makes some of the opposition hard to understand. This bill would fine tune the data collected to make it
more fair to officers.

For example, right now most departments lump all searches performed at traffic stops together for purposes of racial profiling reporting, but many searches officers are required to perform. For example, if someone is arrested for warrants or anything else, or if the car is impounded, it must be searched. It's not something the officer can choose not to do, and shouldn't count against them on the racial profiling report. It will, though, unless Sen. West's bill passes.

Similarly, police complained bitterly that traffic stops were being compared to census data, even though in many towns half the traffic or more came from out-of-towners passing through. West's bill would fix that by requiring departments to record whether the driver came from in or out of the jurisdiction, so that only in-jurisdiction driver data would be compared to the local census record. That way when University Park -- which is a mostly-white municipality surrounded en toto by the City of Dallas -- stops minority drivers passing through town, they won't be compared to the lily-white census numbers.

The police incentive to fix that stuff is big, so I thought for sure they'd go for Sen. West's bill on that alone. But there's another incentive for passing the law I'm surprised they ignore: If they kill the bill, it's not the case that Texas won't have a repository; Texas civil rights groups already compile most racial profiling reports statewide, and have become the
de facto central repository in the absence of one created by statute. If this bill passes, we'll rely on the new repository like everybody else, and there will be no fear that ACLU, NAACP, LULAC or the Texas Criminal Justice Coalition are somehow tainting the numbers. (We weren't, but there's a trust issue there with the cops that probably cannot be overcome.)

Toward the end of Wednesday's hearing, though, it finally hit me what was going on, confirmed for me later by a contentious conversation with a police union rep whose irrationality on the point betrayed his agenda: They WANT the data to be flawed. That way, they can loudly complain when their data comes out that it's unfair. They understand that the collection of racial profiling data is a tool to identify discriminatory policies and practices, and therefore want to find any way they can to discredit that tool and restrict its ability to perform its job.

This is a cynical, long-term approach. Cops know that reform movements come and go, but they're in it for the long haul. If racial profiling data can be discredited, they believe, they can ride out the possibility for reform for a few years longer, then kill the whole program later. It seems, then, more important
than ever for the future efficacy of Texas' data collection law that at least the part of West's bill fixing what data are collected pass this session.

Saturday, April 23, 2005

Probation and sentencing roundup

A few more recent items on Texas' probation and sentencing reform front that caught my eye:
  • No New Felonies? The Baytown Sun editorialized against making car burglary a felony, while the Beaumont Enterprise thinks a pause is appropriate in boosting prison sentences. Here's an action alert to oppose new prison sentence increases.
  • Or only 'little' felonies? Rep. Peña thinks his HB 1324, dubbed HB 151-Lite, may have a chance where a more draconian approach was stopped in the Senate by Criminal Justice Committee Chairman John Whitmire.
  • Listen to the children: Ann has resources on legislation to improve telephone access in prisons that would raise money for probation services and give inmates more opportunities to stay in touch with their families.
  • Whither the smoke-filled backroom? The Statesman's Mike Ward documents the welcome trend toward openness in deliberations over changes to the criminal justice system.
  • Texas a model? Texas' HB 2668, authored in 2003 by state Rep. Ray Allen, R-Grand Prairie, was highlighted by the April 17 Chicago Tribune:
Between 1991 and 1996, Texas tripled the size of its prison system to make room for all the criminals it wanted to lock away. But two years ago, a state budget crisis forced the legislature to reconsider.

At that point, state Rep. Ray Allen, a conservative Republican and chairman of the House Corrections Committee, says he discovered that Texas prisons had some 4,000 inmates charged with minor drug felonies. Considering the state was spending $2 a day to supervise people on probation, compared with $40 a day to keep them in prison, he introduced a bill mandating probation and treatment for first-time offenders caught with small amounts of illicit substances.

"I thought we'd catch hell for it," he said in a phone interview the other day.

But one former prosecutor in the House, also a Republican, said, "I've sent 1,000 people to prison for these types of offenses, and I don't feel too good about it." To Allen's surprise, the bill passed both houses without dissent and was signed by Republican Gov. Rick Perry.

"What broke the logjam," says Allen, "was when Republicans who had been tough on crime looked at the fiscal impact and saw that policies that felt good were fiscally unsustainable." By diverting some drug offenders from prison, he says, Texas has saved $51 million, and the savings will grow.

He doesn't see the shift as going soft on crime by any means--just the opposite. Considering the 4,000 prison beds that were then occupied by minor drug offenders, Allen explains, "we as a legislature decided we wanted rapists, robbers and murderers to occupy those beds."
As always, be sure and check out Solutions for Texas for more on these topics.

UPDATE: Ann's posted the new language for the SB 1266 committee substitute, the Texas Senate's version of probation reform, all 101 pages. It's up in committee on Tuesday, and criminal justice reformers are proposing several amendments that I'll discuss soon. Congrats are in order to the Senate Criminal Justice Committee and to Ann, who ably covers probation and sentencing bills on behalf of ACLU of Texas -- this represents a ton of hard work by a lot of folks.

Thursday, April 21, 2005

Keep the Keys

Marc Levin of the Center for Effective Justice at the Texas Public Policy Institute, a conservative think tank based in San Antonio, weighs in on how to fix Texas' overincarceration mess: probation reform - a familiar refrain.

Senator faces police retaliation over bills

Man, those South Texas cops play the politics game pretty rough.

The McAllen Monitor reports that the South Texas Specialized Crimes and Narcotics Task Force has released a video of a traffic stop involving state Sen. Juan "Chuy" Hinojosa, hoping to intimidate him into backing off his efforts to rein in rogue task forces and to ban consent searches at traffic stops. (You can view the video here.) The Attorney General has ruled such video is not a public record, so the task force used its discretion to give it out anyway, even though normally law enforcement suppresses those tapes.

That's unbelievably brazen -- a pure case of retaliation against a state senator for filing legislation.

Indeed, this sort of retaliatory tactic against public officials is a pattern with this bunch. The South Texas task force earned special disapprobation two years ago when a couple of its agents allegedly attempted to bribe a member of the asset forfeiture division of the Kleberg County District Attorney's office. When they were found out, the officers claimed it was a joke, despite ongoing bad blood between the task force and the DA. Said the DA to the Corpus Christi Caller Times in 2003, "If all of this is true, two task force members were committing bribery. Even if this is a prank, it indicates a severe lapse in judgment ... I think the whole task force is infected."

The South Texas task force is one of several that refused to go under the authority of the Texas Department of Public Safety at the order of the Governor after a series of scandals statewide. Instead, the task force chose to do without federal funding, living off asset forfeiture income from traffic interdiction like pirates living off the spoils from plundered ships. Task forces with large asset forfeiture income streams didn't want to follow DPS rules, in particular one requiring that they devote equal time performing interdiction on northbound and southbound traffic. Generally, drugs run north and money runs south, so task forces hoping to maximize income routinely monitor only the southbound lanes. That's what Hinojosa thinks was happening when he was pulled over. Reported the Monitor:
Hinojosa said he was profiled because he is Hispanic and was driving a late-model SUV. The stop was illegal, and it brings up another problem with the task force: it is looking for cash, not drugs, he said.

Because the task force is funded through the seizures it makes, its officers are less interested in finding drugs and more interested in finding money, Hinojosa said.

If they wanted drugs, they would search cars heading north on 281, not south, Hinojosa said.

"They’re only after the money from seizures so they can pay their salaries," Hinojosa said.
Hinojosa's SB 1125 would abolish multijurisdictional drug task forces that refuse to accept DPS oversight, but the committee substitute allows them to reconsider and join DPS' system. That's a lot less radical than other legislation that would get rid of the whole task force system.

It merits note that the senator's record reining in drug task force misbehavior goes back years, long before this traffic stop for which he's being accused of retaliating. In 2001, when he was a member of the House of Representatives, Hinojosa passed two bills reforming procedures based on problems arising in the Tulia and Hearne scandals. His legislation requiring corroborating evidence for undercover operatives in drug stings has inspired a similar bill in Congress. Chuy's no Juan-come-lately to this fight -- he's been trying to impose accountability on Texas' drug task force system for a long time -- he's not on some vendetta against this particular task force, though it's a particularly egregious one.

It's ironic to hear this particular drug task force complaining about Hinojosa's proposed requirement for written consent at traffic searches. They were one of the troublesome actors in a study I authored for ACLU of Texas last year analyzing racial profiling data from drug task force highway interdiction units. Entitled Flawed Enforcement (pdf), the study analyzed search data in particular, finding that drug task force interdiction practices amount to fishing expeditions looking for asset forfeiture income.

The South Texas Specialized Crimes and Narcotics Task Force has a designated highway interdiction unit devoted to stopping drivers along state highways 77 and 281. The agency reported that vehicle searches are performed at an astonishing one-third of traffic stops, meaning one of three drivers stopped for a supposed traffic violation.

Even more insensibly, the agency reported that 93% of these were "consent searches," where an officer was using his or her discretion to ask for a search, even though there was no probable cause. By contrast, for example, 12% of searches by the San Antonio PD were consent searches, 14% by the Austin PD. That's a sign the task force is fishing for assets, not just enforcing the traffic laws. They're engaging in exactly the type of behavior Sen. Hinojosa wants to restrict.

He may be right, too, that the task force is engaged in racial profiling. White people stopped by the South Texas task force were searched 15% of the time, according to the racial profiling data the agency reported. By contrast, Latinos were searched 30.2% of the time they were stopped. (Too few blacks were stopped to include in the analysis.)

Apparently the problems at this agency go back a long time. This historical Grits post from last fall, based on information garnered from an ACLU open records request, disclosed how, ten years ago, the same task force was led by a drug-addicted commander and staffed by gypsy cop agents who destroyed evidence, lied in court proceedings and covered up one another's criminal behavior.

I know Sen. Hinojosa won't back down, so I hope his constituents back him up. I also know his encounter with this drug task force isn't the reason he filed these bills, but I'll bet the assault on his character will make the new laws sweeter to celebrate when they pass.

UPDATE: Greg Moses has more.

Our spokesmodel

The Texas Observer has a good interview with my boss, Will Harrell, of ACLU of Texas here. I hung that "spokesmodel" tag on Will soon after he first arrived -- he's a bit of a pretty boy.

Bill bashing task forces passes House

Legislation to abolish Texas' drug task force system keeps gaining steam. HB 1239 by Hodge passed in the Texas House yesterday on third reading and is headed to the Senate. Getting rid of these rogue agencies would free up money for other Texas criminal justice needs like drug treatment, probation services and improvements to crime labs. See ACLU's flyer (pdf) promoting the bill for the floor vote.

Related: check out this article from the Dallas Examiner about ACLU's litigation against a drug task force in Hearne, Texas, which will go to trial May 9.

Wednesday, April 20, 2005

Sad blogging

I'm feeling sad today, so no blogging till mañana.

No, it's not just because Rep. Patrick Rose, D-Dripping Springs, whose campaigns I helped in 2002 and 2004, voted for this piece of homophobic garbage.

Ironically, the other state representative whose general election campaign I helped in 2004, Rep. Ray Allen, R-Grand Prairie, voted against banning gay people from becoming foster parents, so by working for the anti-abortion Republican, I kept my homophobia quotient to just 50%, I guess is the good news. But no, that's not why I'm sad. It's personal. I won't tell you.

Tuesday, April 19, 2005

Written consent required for traffic searches if Senate bill passes

Texas police officers must obtain written consent before searching a motor vehicle at a traffic stop without probable cause or some other legal basis, if the committee substitute for SB 1195 by Hinojosa, which passed out of the Senate Criminal Justice Committee today, becomes law. (Notice of the vote is not online yet, but a colleague emailed the good news from the hearing.)

The House Law Enforcement Committee heard the same bill Monday where it was left pending. Two committee chairs, Representatives Harold Dutton, D-Houston, and Suzanna Hupp, R-Lampassas joint-authored the House version. Only the Dallas News
covered the hearing
that I saw (see Grits' write-up of the Senate debate here), but I was glad to see them quoting Rep. Hupp declaring, "The Fourth Amendment has been walked all over in the name of the drug war."

Sing it loud, sister!

This version of the bill, if it became law, would have the Texas Department of Public Safety generate a consent form through its rulemaking process. At the end of the day it should have a big impact bolstering drivers' Fourth Amendment rights, though I certainly prefer an outright ban. In Austin, when a requirement to obtain written consent was instituted, the number of citizens consenting to searches declined by 63%.

Poll: Texans want fewer nonviolent offenders in prison

Ann has the results.

House considers whether to end drug task force system

Legislation to end Texas' drug task force system in its current form, HB 1239 by Hodge, will be heard today on the floor of the Texas House. The bill follows closely the interim recommendation of the House Criminal Jurisprudence Committee, which found that:
“Continuing to sanction task force operations as stand-alone law enforcement entities - with widespread authority to operate at will across multiple jurisdictional lines - should not continue. The current approach violates practically every sound principle of police oversight and accountability applicable to narcotics interdiction.”

Texas House Criminal Jurisprudence Committee
Interim Report, December 2004
Task force officials say the bill could make it impossible to operate as they have in the past. That's fine with me. The legislation attempts to redress problems from incidents in Tulia, Hearne, and elsewhere where drug task forces engaged in racial profiling, police misconduct and set up innocent people. Grits wrote about the committee hearing here.

Another bill I've written about favorably -- HB 823 by Keel, which allows legal gun owners to carry a legal weapon when driving in a personal motor vehicle -- also is on today's House Calendar, meaning it's up for a floor vote.

UPDATE: Both bills passed this evening on 2nd reading on voice votes; both must receive one more favorable vote in the House before heading to the Senate.

Monday, April 18, 2005

Lots of stuff going on

Light blogging from me today, but plenty of other good folks have stuff you should read:
  • Adina lets us know about a Texas bill up today protecting truckers from adult websites. That's good, right? I mean, you wouldn't want to corrupt the truckers.
  • More from Adina over at Save Muni Wireless on why public wireless doesn't crowd out private companies (any more than NYC subways crowd out taxi service), and how the US is falling behind in high-speed Internet access.
  • Greg Moses offers some first-rate investigative blogging regarding Texas' voter registration database upgrade and Texas' efforts to comply with the Help America Vote Act. His series is ongoing.
  • Texas Tommy takes an indepth look at a faith-based prisoner reintegration program.
  • I second the sentiment from Rhetoric and Rhythm about trusting jurors in the Life Without Parole debate.
And don't forget to check out Grits' blogging over the weekend. Here's what I've been writing about:
Finally, legislation banning so-called "consent searches" at traffic stops will be heard today in the House Law Enforcement Committee. I wrote about the hearing on the Senate version of the bill last week. HB 2418 is joint authored by Rep. Dutton, D-Houston, and Rep. Hupp, R-Lampassas.

Sunday, April 17, 2005

Bill broaches blogger-journalist debate

Texas' first legislator-blogger Rep. Aaron Peña, thinks journalists need more protection.

Peña's proposed shield law legislation,
HB 188, will be heard Monday in the House Judiciary Committee. Shield laws protect reporters from having to reveal their sources except under well-defined circumstances. I was glad to see
Peña wrote the bill up on his own blog here. I think it's a great idea for legislators to use blogs to promote legislation and explain what they're doing to the public. I wish him luck, and really hope it passes.

As he points out in his blog post, Rep Peña's bill raises the issue of whether bloggers are journalists who qualify for protection. His blog's interpretation leaves the question open, but here's what appears to be the money quote on the subject in the bill language:

"Journalist" means a person, or an employee, independent contractor, or agent of that person, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination by any news medium.
The way I read that, if this bill passes, then bloggers who accept advertising or who are otherwise blogging as a "business" would be covered, while those like Grits blogging without remuneration would not receive such protection.

That's not an unreasonable place to draw the line. A lot of blogs accept advertising, so many would qualify. Indeed, one wonders if small revenue streams such as one might receive from Google Adwords would qualify a blog as a business? For that matter, I wonder if the bill language would cover someone who was writing for pay, but who worked for a nonprofit, not a "business"? The Texas Observer, for example, is a non-profit corporation, but not a for-profit "business."

These are all sticky questions to which there are no easy answers. Make me philosopher king and I'd agree with Michigan law professor and conservative blogger
Hugh Hewitt's definition in the current issue of Campaigns and Elections magazine that just arrived in the mail: "any blogger writing with the intent of providing news or opinion to a third party - the identity of whom they do not know - is a journalist in my view." That picks up everybody from Josh Marshall to Grits to Slashdot to Rep. Peña's own blog.

The prosecutors are out to kill
Peña's bill, though, so don't look for the language to get more expansive. The news media backing it are feared, but unpopular. He'll face a tough row to hoe if he's going to pass it, but it's a worthy ambition.

Saturday, April 16, 2005

Harris County drug task force kicks the bucket

What do Austin, San Antonio, Dallas, Fort Worth, Laredo, El Paso, Abilene, Denton, Lubbock, Amarillo and Brenham have in common with Harris and Fort Bend counties? After May, none of them will any longer participate in a Byrne-grant-funded drug task force. Harris, whose county seat is Houston, is Texas' largest-population county. That means unless those grants are shifted away from task forces, where 86% of the funds go now, most Texans will no longer benefit from federal law enforcement grants.

Texas' drug task force system may have reached a tipping point this week after a federal judge cleared the way for a lawsuit against a drug task force in Hearne, and the
Harris County Organized Crime and Narcotics Task Force announced it will end its existence as of May 31. The Baytown Sun reported today that the Harris County task force, which is operated by the Baytown Police Department, must close down because of new federal budget cuts. (Ed. note: see more on these federal cuts here.)
[Baytown Police Chief Byron] Jones said a representative of the Criminal Justice Division of Gov. Rick Perry’s office, which distributes federal funds to local police agencies, had informed Clifford the federal government had recently combined two grant programs into one, the Justice Assistance Grants program.

With the change, the total amount of funding agencies across the country compete for had been “reduced by millions,” Jones said.
ACLU earlier this year urged Harris County officials to abolish their task force in order to use the grant money for much-needed drug courts and crime lab improvements. Meanwhile, the Legislature may still get rid of the task force system, and President Bush proposed eliminating their budget. One way or another, Texas' drug task forces appear to be on their way out.

The City of Baytown hopes to keep the task force's remaining assets, upwards of $2 million, but Governor Perry should make them remit the money to the state. That task force covered two large counties, not just tiny Baytown, and there's no good reason they deserve the cash -- not during the current budget crisis. There are too many other things to spend the money on.

Kudos to Governor Perry and his Criminal Justice Division for nixing the task force. I hope this is a prelude to a decision to shift all the Byrne money away from task forces -- now that so few people in the state benefit from federal law enforcement grants, sticking with the drug task force strategy no longer seems like a fair distribution of funds.

It sure looks like the saga that began with the Tulia drug stings may yet end with the abolition of Texas' drug task force system in 2005.

Making the right to counsel real in Texas

Representation by an attorney when you're arrested is a basic constitutional right, but too often prosecutors bully suspects into waiving that constitutional protection. Once a suspect gives up the right to counsel, they can be questioned rigorously, often unfairly.

Anyone who's watched
NYPD Blueor other cop shows knows how it works. Suspects are routinely told, "I can't help you if you don't sign the waiver," or that if they retain a lawyer it will look like they have something to hide. Then they're pressured to sign a written document giving up their right to a lawyer. A certain percentage, in practice a sizeable one, inevitably succumb to the pressure.

HB 3152 by Rep. Juan Escobar, which will be heard in Tuesday's House Criminal Jurisprudence Committee meeting, would forbid prosecutors from attempting to "initiate or encourage an attempt to obtain from an unrepresented defendant a waiver of the right to counsel." That means prosecutors couldn't request or get others to request that a suspect waive their right to a lawyer. It also bars prosecutors
from communicating with a defendant who has requested counsel, unless a judge denied the request. If suspects choose to eschew a lawyer of their own volition, fine, but the state has no business pressuring folks to do so.

Not only would this simple change protect the rights of suspects, it will make for better cases by limiting questionable tactics that might later be grounds for appeal. It could also help reduce coerced confessions that cause the wrong person to be accused while the real criminal goes free. Everyone benefits -- even crime victims -- when the system works like it should.

Not long ago a police officer told me, "I swore an oath to protect the Constitution. In theory, if I'm doing my job, there shouldn't be any need for the ACLU." In theory, I suppose, that's true. In practice, though, police and prosecutors frequently use questionable tactics like these counsel-waivers to strip people of their rights. As long as they do, there will still be a role for the ACLU. I'm happy for Rep. Escobar and others, though, to try to put us out of business.

Texas Senate Criminal Justice News

The news page on the Texas Senate website currently has a criminal justice focus, updating some topics Grits has recently ignored: Life without parole and probation reform.

See also Ann's probation fact sheet and prior Grits probation coverage here, here, and here.

Disclosing snitch rewards only fair

As a former federal drug task force commander, South Texas Democrat Rep. Juan Escobar knows more than most folks about confidential informants, aka, "snitches." That means he also knows they can be abused.

His HB 3151 will be heard Tuesday in the House Criminal Jurisprudence Committee requiring prosecutors to disclose to defense attorneys any communications "regarding benefits or detriments that may be conferred on the witness as a result of the witness's participation or lack of participation in the case must be documented in writing and disclosed to the defense at least 30 days before the date the trial commences."

Basically that means prosecutors must disclose what their snitches are getting in exchange for their testimony. And why not?

Bad snitches (and their police handlers) are responsible for some of the worst abuses in Texas' drug war, indeed, of the entire justice system. In Dallas, Hearne, and Palestine, informants were used as instruments of racial profiling. In the Dallas fake drugs scandal, the main snitch was earning upwards of $200,000 per year -- more than the police chief -- in confidential informant fees. Others receive reduced prison time for snitching. Such arrangements clearly should be revealed to defense counsel before trial.

Security through Obscurity?

During the Cold War, the terms secrecy and security were nearly synonymous. Since then we have undergone a paradigm shift, though, driven largely by the computer revolution. In the digital age, government transparency protects us more often than secrecy.

Apparently Texas state Rep. Mark Homer, D-Paris, hasn't been receiving his subscription to Wired magazine, because on Monday the House State Affairs Committee will hear his HB 3245, that would sweepingly close all meetings related to computer security. Not only would this keep citizens with computer security expertise from contributing to state and local policymaking and administration of IT security, ACLU of Texas Cyberliberties Project Director Adina Levin says it would "kill our efforts to get computer security experts involved in scrutizing electronic voting technology -- where systems with hard-coded encryption keys got state-certified." ACLU and the Electronic Frontier Foundation had sued to open the meetings up, and
a district court judge agreed. Homer's bill would overturn their court victory.

Beyond those unhappy implications, I've got a personal dog in the fight. In 2003, I spent many long hours -- over more than half a dozen contentious meetings -- negotiating the openness provisions surrounding computer and other security in a post-9/11 environment on behalf of ACLU of Texas in HB 1191/HB 9. What we got wasn't perfect, and includes the provisions I often complain about
closing information about security cameras, but certainly it closed all the information a reasonable person might think should be kept secret about one's computer system, see the statutes here, here, here, and here.

In particular, meetings may be closed to discuss the "technical details of particular vulnerabilities," passwords and encryption keys are secret, indeed, basically every real security risk anybody ever came up with during those grueling meetings (which involved about 15 special interest lobbyists, the AG and Governor's offices, and Rep. Ray Allen's staff), so beyond that I don't know what they're protecting.

Word has it the bill may be revised, and I sure hope so. It's time to discard the idea that making government decisions behind closed doors makes us more safe.

UPDATE: Ed Felten and Adina have got more.

Friday, April 15, 2005

HB 254 gains unlikely, unanimous support

Who said Democrats and Republicans can't agree on anything?

The House Criminal Jurisprudence Committee
vote on HB 254 restructuring low-level marijuana penalties was unanimous, 6-0, including three Republicans and three Democrats.
The bill provides badly needed relief to county jails and may even boost enforcement. Taylor reported in the comments about the unanimous vote, but I nearly fell off my seat when I learned who the six were: Representatives Keel, Riddle, Peña, Denny, Escobar and Hodge!

Rep. Escobar is the former head of a federal drug task force, while Riddle and Denny are among the most conservative members of the Texas Legislature.
Peña is a crime victims' advocate who entered politics after his son's drug-related death. Keel is a former Travis County Sheriff. Of the six, only Rep. Hodge has been a long-time advocate for criminal justice reform. That's a really solid, diverse vote. (UPDATE: The Startlegram has the first MSM coverage.)

Many thanks to all.

Thursday, April 14, 2005

Bill restructuring marijuana sentences clears House committee

That's more like it. I was starting to worry.

After sitting around for one day shy of a month after its hearing,
HB 254, which would restructure sentences for low-level marijuana possession, passed out of the Texas House Criminal Jurisprudence Committee today at a desk meeting. (See a fact sheet on the bill.) There's still plenty of time for it to move through the process.

I haven't seen the vote tally, yet, but muchas gracias to committeemembers who supported it.

HB 254 would restructure sentences for possession of less than an ounce of pot to become a stiff fine, boosting local revenue and freeing up space for more dangerous inmates. A similar law in Columbia, Missouri actually boosted enforcement. See previous
Grits coverage here and here.

No Fishing!

The Brownsville Herald today praised Sen. Juan "Chuy" Hinojosa's proposal to ban so-called "consent searches" at traffic stops without probable cause.

Grits wrote about the Senate hearing on the bill
here, and the Statesman's Mike Ward covered it yesterday. The House Law Enforcement Committe will hear the companion bill, HB 2418, joint authored by Harold Dutton, D-Houston, and Suzanna Hupp, R-Lampassas, on Monday afternoon.

More on ACLU Hearne litigation

You read it here first, but the Houston Chronicle and a Waco TV station have more on the federal court ruling that cleared the way for ACLU's civil rights suit against the drug task force in Hearne, TX, to go to trial in May.

Wednesday, April 13, 2005

Lone Star Rising!

Rep. Peña must've gotten lonely as Texas' only legislator-blogger because he's started a new group blog and invited all his fellow legislators to participate. Check out Lone Star Rising, and read Rep. Peña's introduction.

A group blog for the whole Legislature? That's gotta be a first. Really cool idea.

Also, I forgot to mention the Texas Observer's new entry in the blogosphere, The Texas Legislature Observed, is up and running a few days ahead of schedule.