Wednesday, June 14, 2017

Blessed are the Poor: Examining opposition to debtors-prison legislation

Texas State Sen. Paul Bettencourt was quoted by the Associated Press (June 11) criticizing debtors-prison legislation (SB 1913) which he and five others voted against in the senate. He:
said that it did not adequately consider “personal responsibility” and that it provided too much leeway for judges to waive fines. 
“Current law already allows a court to work with indigent defendants who are truly unable to pay court imposed fines,” said Bettencourt, a Houston Republican.
Let's flesh this criticism out. Here's what the bill does that Bettencourt is criticizing:

Under current law, if a defendant is indigent and unable to pay a Class C misdemeanor fine, the judge cannot waive the fine or authorize community service at sentencing. Instead, insensibly, they must order the indigent defendant - whom everyone in the room knows cannot afford it - to pay the full fine, anyway. This judicial fiction drags the process out for weeks or months while everyone waits for the inevitable default.

Then, at that point, if the defendant comes back into court, the judge may waive fines and/or order community service. But many defendants are afraid to return to court for fear of being jailed. Often, warrants are issued instead and the defendant doesn't come back to court until the next warrant roundup or when they're pulled over at a traffic stop. The Office of Court Administration's David Slayton told the AP, “Our belief is that people don’t go to court because they think they’ll automatically get jail time if they can’t pay.”

So when Sen. Bettencourt says, "Current law already allows a court to work with indigent defendants," he's leaving something out: The law actually forbids judges from working with defendants at sentencing, insisting they must impose fines even when the debtor cannot pay. The extra leeway he deplores giving judges would simply let them waive fines and impose community service at sentencing instead of waiting for an all-but inevitable default. The former Houston Controller's Harris County Tax Assessor's goal appears to be to drag the process out so the state can bleed every last dime out of indigent defendants before granting them constitutionally mandated relief. That's cruel and pointless.

Once Class C defendants default, it's true, the court is authorized to "work with" defendants down the line if they do not pay up. But Bettencourt's preferred status-quo approach needlessly extends by weeks or months a process that should take a single hearing. Moreover, it results in many thousands of arrest warrants for indigent defendants who default on a payment plan, and is an affront to common sense and judicial economy. The governor should sign this important bill.

MORE: See an op ed from College Station municipal judge Edward Spillane and former District Judge John Delaney in support of debtor-prison reform legislation. Here's a notable excerpt:
In Texas, fewer than 2 percent of all cases in municipal and justice courts are currently resolved with community service. One in every eight cases is resolved at least partly with jail credit. It is better for communities if people to have more access to community service and avoid going to jail just because they cannot afford to pay a ticket. 
SB 1913 will also ensure that in circumstances where it’s appropriate, judges no longer should wait for a defendant to default on debt before considering whether to waive some or all of what is owed. 
Texas has a well-earned reputation for being tough on crime — but that doesn’t mean we should be putting people in jail because they simply don’t have the money to pay their court bill. We need to be tough and fair. SB 1913 doesn’t mean giving anyone a hand out; it means tailoring sentences and allowing people who can’t pay their bills to work it off in another way. 
SB 1913 will also save Texas cities and counties money. When someone is put in jail for nonpayment of a fine or fee, we all end up footing the bill. This legislation will make it less likely that people go to jail for failing to pay and more likely that they will comply with their sentences. If judges can work with people on plans that make sense for their individual circumstances, they won’t end up in jail — and taxpayers won’t need to be charged for their unnecessary jail costs.
SB 1913 will also decrease the amount of time and energy that peace officers spend tracking down people for unpaid traffic tickets by reducing the number of warrants for unpaid tickets. Currently, 95 percent of the warrants issued in Texas come from fine-only cases, most of which stem from traffic tickets.
NUTHER UPDATE (6/15): This legislation was signed today!! 

Tuesday, June 13, 2017

Debtors-prison policies decried, DPS cuts license center hours, and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused on preparing for a much-need break next week.

SCOTUS to consider warrants for cell-phone location data
The US Supreme Court will finally consider the constitutionality of accessing cell-phone location data from service providers without a Fourth Amendment search warrant. See a press release from the ACLU, a report from Ars Technica, NY Times coverage, and commentary from Mother Jones. This makes me wish Texas had succeeded in enacting a statutory warrant requirement - an effort with which your correspondent was involved for several years. Doing so would bolster the case for the courts requiring a warrant and provide belt-and-suspenders protection if SCOTUS rules the wrong way.

Budget cuts shorten DPS driver license center hours, but border security fully funded
Border security funding for DPS remained at pre-Trump levels in Texas' new state budget, despite the President's commitment to having the feds step up on border security. In the meantime, though, legislators cut DPS' budget resulting in shortening hours at state drivers license centers. Legislators say they didn't know that would be the result of the cuts, but it's hard to see how anyone believed that cutting the DPS budget while making border security spending sacrosanct could possibly result in anything else but reduced services. MORE: Following a predictable uproar, the governor ordered DPS to reinstate the old hours. Of course, he' can't reinstate the money to pay for it, which was cut in the budget he just signed, so DPS will have to cut services in other areas.

Discussing future dangerousness
A New York Times feature last week featured a discussion of Texas' Duane Buck case and the notion of proving "future dangerousness." The article brought to mind an old Texas Defender Service report from 2004 which found most predictions of future dangerousness by then-commonly used experts turned out to be demonstrably wrong. See also Judge Elsa Alcala's dissent from the Buck case, which was received more favorably by justices on SCOTUS than by her colleagues on the Court of Criminal Appeals. FWIW, Texas executions are down, the Dallas News reported recently, though Grits would expect them to rise again by the end of the year. The main reasons for the decline were a new 2015 law requiring prosecutors to give notice to the defense when they seek to have execution dates set, and Texas' new junk science writ, which has resulted in consideration of additional issues in several cases. Over time, though, most of those cases will end up with execution dates. Executions are slowing, but not by as much as last year's numbers would indicate.

What a screwup
Never convicted, he still spent 35 years locked up in TDCJ: Jerry Hartfield was released this week.

Documenting Texas forensic reforms
Nicole Casarez and Sandra Guerra Thompson have a new academic paper out posted on SSRN last month discussing Texas forensic reforms. Not all of those efforts have worked as well as one might like, but Texas has done more than most states on this front.

Debtors prison policies decried
See testimony from Texas A&M law prof Neil Sobol to the US Commission on Civil Rights related to debtors prison practices, and a pair of academic articles he wrote suggesting consumer credit protections be applied to nonpayment by criminal defendants. This year, the Texas Legislature passed important reforms to limit arrests for criminal-justice debt. See coverage from the San Francisco Chronicle. Then go here to ask Gov. Abbott to sign HB 351 limiting debtors-prison practices.

Monday, June 12, 2017

Governor signs omnibus innocence bill to track informants, record interrogations

Governor Greg Abbott today signed HB 34, Texas' latest omnibus innocence legislation. Grits explained in this post why the eyewitness ID reforms are minimalist, at best, and avoid confronting the reasons flawed identifications still make it into court. In the latest Just Liberty podcast, Mandy Marzullo had this to say about the other key provisions from the bill:
[The] two big provisions that you want to pay attention to are the provisions that deal with recorded interrogations.  Going forward right now, law enforcement will have to record all of their custodial interrogations that deal with major felony offenses which is a huge coup.  Although a lot of law enforcement agencies say that they record their interrogations as a matter of best practice, what this means is that they have to do it.  And, they have to do it every time.  So, it’s a big deal for Texas.
The other issue is informant reform, another big piece of this legislation that requires district attorney’s offices track their use of informants. ... Informants are typically people who are in the jailhouse who report to law enforcement that a defendant confessed to a crime.  And, they testify to this confession.  So, as you can tell, just from the outset, you’re dealing with someone who does not have firsthand knowledge of an offense.  So, it is highly unreliable information to begin with.  And then, it’s incentivized testimony that usually they’re giving their testimony in exchange for some benefit.  And what the tracking does is it allows us to know how often the same person is getting favorable treatment from the prosecution.

Junk-science based false convictions in Houston lampooned by comedian

Someone has finally grokked and managed to convey in an accessible, understandable way the unmitigated travesty of justice surrounding drug convictions based on junk science in Houston. Comedian Samantha Bee aired a devastating 7-minute segment on false convictions in H-Town based on flawed drug field test results.

Grits has covered it. The Austin Statesman has covered it. Pro Publica and the New York Times Magazine have covered it. But no one has so succinctly captured the full scope of how these innocence claims play out in a corrupt system that railroads poor, innocent defendants better than this piece from Bee's show Full Frontal. Go figure.

This story has implications far beyond the borders of Harris County, or even Texas, as these field tests are used all over. And in some jurisdictions, if a defendant pleads guilty like one of the men in this story, crime labs don't always perform the followup test because of backlogs and cost constraints. So the most amazing part isn't the disparate treatment between the two defendants, but that these false convictions were ever brought to the light of day at all. Give it a watch, they did a great job with it:

Kudos to Inger Chandler from the Harris DA Conviction Integrity Unit and James Miller of the Houston Forensic Science Center (the bowtie was a nice touch) for their frank assessments of the problems with these commonly used instruments of junk science, which have caused an eye-popping number of false convictions. And that's just the ones we know about. They've only just begun to address the problem in Houston and no other jurisdiction in Texas is undergoing a similar review of cases based solely on field tests.

Four final notes: 1) It's a sad commentary on the state of Texas journalism that no outlet in this state ever told this story in such a compelling fashion, though all the pieces were there long before a comedian from Canada picked it up. Texas broadcast journos need to pick up their game. 2) The point about differences between outcomes for poor defendants and those with means plays out in every type of case, not just ones where the defendant was framed falsely convicted. 3) Shouldn't police departments just stop using field tests until the science behind them improves? And 4) the story speaks to the tremendous importance of the work at conviction integrity units. They only exist in a handful of DA offices, but they're exposing flaws in the system that we know also occur elsewhere. Like in this story.

Watch this excellent video clip and share it. Great stuff.

MORE: Two things: 1) it should be mentioned that, hours after I posted this, the governor signed HB 34 which includes a requirement that the Forensic Science Commission study the field test issue and report back to the Legislature by Dec. 1, 2018. Grits will try to cover this process, but I'd hope the MSM will, as well. 2) Nicolas Hughes, the lawyer at the Harris County Public Defender Office responsible for filing habeas writs in these cases, emailed these thoughts on the use of unreliable field tests:
Questions regarding the war on drugs aside, field testing presents a complicated problem. I’m all for the preliminary drug tests over the alternative – the officer’s hunch.

The question to me is what does the criminal justice system do with the information it gets from the preliminary drug test, knowing that the information is imperfect? Given that there’s a non-negligible chance that the test result will come back negative or at least differently than expected, I would hope that people would be released on PR bonds and/or a citation at least until a confirmatory test came back. I would also hope that officers receive some annual training on the tests and that agencies implement some quality assurance programs involving the tests.

Saturday, June 10, 2017

Gov. Abbott mistakes incarceration smell for "freedom"

Governor Greg Abbott made a speech in Bell County recently declaring that, as one drove north out of Austin, one could notice a different smell, which he declared was the smell of "freedom."

Let's interrogate this for a moment: In 2014, Bell County had 30.3 prison admissions per 10,000 residents, compared to 21.1 in Travis County. (Source.) One county north, McLennan County had a incarceration rate of 48.1 prison admissions per 10,000 that year, more than double Travis County's rate. Going one county further north up IH-35 to Hill County, we get to an incarceration rate of 71.2 per 10,000 people.

So seemingly there's less freedom - in terms of higher percentages of the public being incarcerated - not more, as one heads north from the Austin metro area.

Unless we're defining "freedom" in essentially Orwellian terms to mean the opposite of the dictionary definition (which includes "the state of not being imprisoned or enslaved"), what Gov. Abbott was smelling clearly wasn't "freedom."

Unanswered questions about law-of-parties beyond death penalty

In our podcast the other day, Texas Defender Service Executive Director Amanda Marzullo estimated that 10 percent of death-row defendants were convicted under the law of parties, and discussed the absence of data about how often the law-of-parties doctrine is used in cases involving lesser punishments.

Besides the implications for lower level offenses, which Mandy ably discussed in the podcast, that estimate/observation raises another question to which she did not immediately have an answer: What is the proportion of law-of-parties cases among defendants accused of capital crimes who ended up sentenced, usually via plea bargain, to life without parole (LWOP)?

Grits has never been a fan of Texas' LWOP statute, having believed from the beginning that life with the possibility of parole after 40 years should have still been a possibility. (Most capital defendants are REALLY young.) But if it turns out that law-of-parties convictions happen at a higher rate than among death sentences, it could indicate weak cases are being overcharged and pled.

Certainly we also need to know more about the extent of law-of-parties convictions in non-capital cases - this is a serious shortcoming in the available data, which Mandy says can't be shown without reading trial transcripts. That means it can't be shown at all from the public record when there's a plea deal!

Law-of-parties convictions inherently deserve extra scrutiny, and not just in the capital context. After all, these are cases where defendant's direct culpability could not be proven but the punishment is the same as those for whom culpability is unquestionable.

This is an area which would benefit from an interim study by a legislative committee or advocacy group. But it's a big task. If law of parties cases are resulting in significant numbers of people being convicted who would not be if prosecutors had to prove all the elements of the crime they're accused of, that could be a large enough issue to affect population levels in the medium to long term. So there are reasons to reconsider these questions related to both equity and economy.

Thursday, June 08, 2017


The headline from the Victoria Advocate declaring that the Texas Legislature prioritized mental health treatment over incarceration is almost Orwellian.

The bill they're touting will add $18 million or so statewide for mental health treatment over the next biennium. The prison system's biennial budget tops $7 billion.

Tuesday, June 06, 2017

Just Liberty post-session roundup podcast

Here's the latest Just Liberty podcast - this time reviewing criminal-justice reform legislation from the 85th Texas Legislature - featuring your correspondent and Texas Defender Service Executive Director Amanda Marzullo. Find a transcript of our conversation below the jump.

Court trends advise tempered enthusiasm for HB 34 eyewitness ID reforms

Does this sound like a suggestive photo array to put before a witness?

A witness described being robbed at gunpoint by a “[b]lack male, around 6-foot tall, 160 to 170 pounds, wearing a red hoodie and dark pants.” A suspect is arrested who wasn't wearing a red hoodie but had one in his bag. In the photo array shown to the witness, the suspect was wearing a red hoodie but the others were not. The witness picked out the suspect, but on cross-examination admitted her "best memory" of the defendant was of his red hoodie. On re-direct, the prosecutor gets her to say she clearly remembered his face as well and that was the basis of her identification.

This is the kind of suggestive lineup that, when your correspondent was Policy Director for the Innocence Project of Texas, we found to underlie false convictions of exoneree after exoneree. But the Fourteenth Court of Appeals found that lineup was permissible in Fisher v. State. And though IANAL, Grits considers it perfectly in line with Texas Court of Criminal Appeals jurisprudence on the topic. They've created a five pronged balancing test and flagrantly ignoring one of the prongs is generally outweighed by even minimal compliance with the others.

That's what makes Grits pessimistic, sad to say, that changes to the law passed this session regarding eyewitness identification standards will keep questionable IDs out of the courtroom. As Elizabeth Loftus, a pioneer of experimental research on eyewitness identification, wrote in her classic text, Eyewitness Testimony (p. 9): "Juries have been known to accept eyewitness testimony pointing to guilt even when it is far outweighed by evidence of innocence." That's been true of several prominent Texas exonerations in which jurors believed erroneous eyewitness testimony over valid alibi testimony. So keeping flawed and biased eyewitness testimony out of earshot of jurors is the only real way to prevent the error.

Under HB 34, the model policy recommended to Texas law enforcement agencies would require that photos in a lineup array:
(i) are consistent in appearance with the description of the alleged perpetrator that was provided by a witness; and
(ii) do not make the suspect noticeably stand out;
But that's only a recommended policy, they're not obligated to adopt it. And as the 14th Court of Appeals pointed out, "the clear weight of Texas authority" leans toward allowing identifications into evidence, even when lineups exhibit those obvious flaws. In Fisher, the defendant was the only person in the lineup wearing a red hoodie similar to the one described by the witness in a statement. Indeed, since he wasn't wearing the hoodie when he was arrested, police appear to have had him put it on for purposes of taking the photo. So making the subject stand out because of the hoodie may even have been intentional. No matter. Though IANAL, Grits sees nothing in HB 34 which would cause Texas courts to begin excluding testimony based on these sorts of flawed ID practices.

The Texas District and County Attorney Association's brief commentary on the case demonstrates how easy it would be to avoid these problems:
Good procedures at your jail can ensure that the photos used in lineups aren’t subject to attack this way. The modern trend seems to be the use of a towel or smock to ensure that witnesses don’t fixate on the shirt worn by the suspect.
Even so, the Court of Criminal Appeals has balked at excluding testimony based on suggestive IDs, despite evidence that they underlie so many false convictions. And the Legislature has refused to put teeth into eyewitness ID reforms by applying Texas' statutory exclusionary rule when proper procedures aren't followed. So Texas courts go forward knowing that some percentage of erroneous IDs and false convictions could be prevented if the Legislature or the CCA would just put their foot down.

Making it all advisory, suggested policies, etc., without having the exclusionary rule apply or even requiring jury instructions when suggestive lineups are allowed into evidence means these reforms don't have a lot of teeth. One supposes they contribute to a general professionalizing trend in law enforcement, but they explicitly don't require it. And judging from the workaday ruling in Fisher v. State, the courts aren't about to do it on their own.