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.

Transcript: Just Liberty Podcast, "Post-Session Roundup," recorded 6/4/17. Scott Henson and Amanda Marzullo.

Amanda: Hi, I’m Amanda Marzullo.  Scott, the Texas Legislature spent most of the spring debating bathrooms and who can use them.  So, how did that affect the criminal-justice reform movement, and its agenda?

Scott: I’m Scott Henson.  I don’t know the answer to that, but the older I get the more I understand focusing on bathrooms.  For me, it’s not so much who’s in there with me.  I just need to make sure there’s one handy.

All right.  Hello boys and girls, this is Scott Henson with another Just Liberty podcast recorded in Austin, Texas on June 4, 2017 with our good friend, Amanda Marzullo, Executive Director of the Texas Defenders Service.  Mandy, what are you looking forward to talking about in the podcast today?

Amanda: I’d say the Law of Parties which is some capital legislation, and grand jury reform.

Scott: All right.  Me too!  So, while many big reforms this legislative session failed to pass including some of them that were backed by the most powerful Republican officials in the state, let’s start by discussing a bill that did make it all the way through the process which was the innocence reform legislation.  HB 34 grew out of recommendations from the Timothy Cole Exoneration Review Commission that met in between sessions to examine the causes of false convictions.

Mandy, what does this bill do, and where does it fall short?  Why does it matter?

Amanda: Okay, Scott.  So, this is omnibus reform meaning that it covers a lot of different things.  But, the sort of 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.

Scott: That’s absolutely huge.  Alexandra Natapoff has been advocating that for years and years.  And, I know she came down and spoke to the Exoneration Review Commission.  This is something that especially in the drug war could be real game changer.  We don’t know, because no one knows right now how widely those informants are used or how often they use the same ones.  But it really could be a significant thing.

Amanda: Yeah, no, definitely.  I mean for those of you who are listening that don’t know what we’re talking about.  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 like, 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.

All right.  Next up, Scott, the Sandra Bland Act was probably the most high profile piece of criminal justice reform legislation this session.  But, a lot of people were not happy with it.  So, Scott, what are their grievances and what does the final version of the bill do?

Scott: Well, the grievances mainly were from folks who perceived that the parts of the bill that spoke directly to Sandra Bland’s story and her personal experience were removed.  In particular, they had taken out the part of the bill that said police could no longer arrest people for Class C misdemeanors for non-jailable offenses.  That did not change this time.  And, they took out the part that said someone who’s arrested and thrown in jail for a very low-level offense has an automatic entitlement to a personal bond, to be released on their own recognizance.  Now, either one of those things would have simply saved her life, if either of those things had been in place.

Amanda: She would never have been in custody at the time of her death.

Scott: That’s right.  Now, there are things left in the bill that are incredibly important that advocates have pushed for for years, and that really will make a big difference.  And, that even impact elements of her case even though there’s nothing in it that draws a bright line that said she would not have died if this had passed.  So, for example, there’s a requirement that police agencies implement de-escalation training for their officers.  Incredibly important.  Never been done before.  It doesn’t mean absolutely that officer would have followed the training, but it’s a big step.  There’s an element that says that any death in a county jail has to be the subject of an independent investigation by another agency.  That’s never happened before.  There are improvements to the racial profiling data that’s being gathered that we’ve sought for 16 years and not been able to get until now.  And so, these are all important things.  And, go ahead.

Amanda: And so, it sounds like what the reforms did do is that it’s going to making just the experience of being in jail safer.  And, giving us tools to identify problems.

Scott: That’s exactly right.  And, we also, we always get to come back in two years.  This isn’t the end of this conversation.  No one is forgetting about Sandra Bland.  And, these conversations about police practices aren’t ending just because those parts of the bills didn’t pass.  But, in the meantime, some really good legislation died on the vine this year, actually quite a lot of it, unfortunately.  But in particular, there was a big grand jury bill that appeared to have lots of momentum with bipartisan support.  And, Governor Rick Perry backing it and making phone calls from Washington on its behalf.  But in the end, nothing happened.

So, Mandy, what would this bill have done and what are the consequences from not passing it?

Mandy: So, the bill actually was, again, another omnibus bill.  So, it did a lot of different things that were, in the end of the day, designed to reinforce the grand jury as a check on prosecutorial power.  So, the grand jury is supposed to represent the community, review charges, and decide whether it’s worth society’s, or like our public dollars, to even pursue charges against somebody.  So, they’re supposed to scrutinize the government’s case.  And, with an eye towards if, you know, tie goes to the prosecution in a big way.  That if there’s a reason to believe that a crime occurred then we can go forward.  But, if your case doesn’t pass the smell test then we should kick it out before subjecting someone to an indictment which could ruin their life.

Scott: And, the big complaint against grand juries, of course, is that if the prosecutor wants it, they would indict a ham sandwich.  That they’re not really providing oversight.

Mandy: Yeah, and so what this bill did was kind of require that the prosecutors give well represented account of the facts that are in front of them.  So, like it said that if the prosecutor has information that negated guilt, they would have to present that to the grand jury.  Or, that they couldn’t go back to the grand jury again and again with the same sort of bad case until they got an indictment.  That type of thing.  Or, making sure that witnesses had counsel in the room, so that they understood their rights.

Scott: And, those were some of the pieces that people like Rick Perry and Ken Paxton were interested in.  The going back over and over when the grand jury didn’t return an indictment the first time, or being called into the grand jury and not being able to have your lawyer there.

Mandy: Yeah, exactly.  So, I mean these are reforms that I should say that have been implemented by and large, not all of them, but most of them, in other areas of the country.  And, the sky is not falling.  But, for a lot of reasons, people were a little bit worried about it.  That said, I don’t think anybody at the Texas legislature thinks that the discussion on this issue is over.  I expect to see a lot of legislation on this issue next session.

All right.  So, let’s talk about another big bill that didn’t pass.  HB 81 by Moody would have created a civil penalty for low level marijuana possession, and would have eliminated 60 to 70,000 pot arrests per year.  It appeared to have lots of support.  Just Liberty even ran radio ads in support of the bill, and created an amazing song in support of it.  But, despite all of the expectations, it never got to a floor vote in the house.

So, Scott, what happened, and what will it take for members of the legislature to ever vote on reducing penalties for user level drug possession?

Scott: Well, as far as what happened this time, I think you have to put everything at this point on Speaker Joe Straus as being sort of the barrier to why we’re not seeing this bill get to the house floor.  A bill to reduce penalties for low level pot possession has passed out of committee now several times over the years.  In 2005, it was the first time I remember, it passing out unanimously, a bill to simply reduce penalties to a class C misdemeanor.  But, we’ve been able to get a House floor vote.

This session, Chairman Todd Hunter, the Chair of the House Calendars Committee was the Vice Chairman of the House Criminal Jurisprudence Committee.  Speaker Strauss had named as Chairman of the Criminal Jurisprudence Committee, the primary author of the marijuana bill.  And, the Vice Chair supported it, and was very vocal about how much he liked the bill.  So, there was every impression that if there was ever going to be a year that this bill might have some legs and get to the House floor, this would be it.

So, if the Chairman of the Committee wants it and the Chairman of the Calendars Committee wants it, and it still doesn’t make it to the House floor, I don’t know who else could be stopping it but the Speaker of the House.  And, that appears to be where we are that Speaker Strauss doesn’t want the legislation to happen for reasons that I don’t know or understand.

Okay people, it’s time to dig a little deeper in a segment we’re calling Capital Corner.  Now, Mandy, at the Texas Defenders Service, you work on death penalty issues, basically cases and policies involving capital punishment.  And, one good bill you were working this session, I was especially interested in talking about, your bill to eliminate execution space on the Law of Parties.  Now, I had to be convinced that the Law of Parties Bill matters very much because not very many death sentences are based on it.  And at some level, we’re talking about a really small number of people.  But, when we began discussing it, you made me understand for the first time that the issue is really a lot bigger than the death penalty.  And, it has implications for over punishment of other crimes not just violent ones, but really of any stripe.

So, talk to us about the Law of Parties and how it applies beyond capital punishment.

Mandy: Okay.  So, yeah, like, as you said, this bill that was proposed was just the tip of the iceberg.  It said that a defendant cannot be sentenced to death if his or her conviction hung on the Law of Parties.  And, what that means is that under Texas Law there’s no distinction between a principal - someone who actually perpetrates an offense, like someone who engages in drug dealing - and someone who’s a party, which is someone who assists in the offense, or someone who conspires to commit one offense, let’s say drug trafficking, and then that means that you’re responsible for all of the acts that in furtherance of that offense no matter what they are.

And so, this permeates every level of our criminal justice system.  And, over-punishment, and so, like the quintessential example is the girlfriend in a drug trafficking case, you know, someone who is driving her boyfriend around town as he is engaging in drug deals.  She’s on the hook for every single criminal activity that her boyfriend engages in, whether or not she even intends to participate in, whether she knows it or what he could possibly be doing.

Scott: And so, this is not just for capital murder, or really even only for violent offenses, or but for drug trafficking or non-violent offenses, even misdemeanors, really, it could just apply to any crime.  But, the Law of Parties says that if you had, again…

Amanda: If you intended to perpetrate one offense then you are responsible for any actions in furtherance of that offense as long as you meant to agree with someone to enter in a coordinated effort.

Scott: So, how many people are we talking about who are sentenced under the Law of Parties.  I know with capital cases, it’s a relatively small number, but it sounds like a really big number when we’re talking about these other types of offenses?

Amanda: Well, I mean capital cases, we believe that it’s somewhere around 10%.  I mean, sorry, capital, I mean death penalty, just the people who are on the death row, we’re estimating that it’s somewhere around 10%.  So, 10% of all crime, that’s an extraordinary number.

Scott: Right.

Amanda: And, there’s no reason to believe that it’s used less at the lower levels.  In fact, there are more incentives for it to be used at the lower levels of offenses.  I do think that in general, you’re going to see it more often used in the felony area.  But, we’re talking about a substantial number of offenses.

Scott: So, if we’re talking about say, we have 1,100 or 1,200 murder convictions in Texas a year, maybe we don’t even know, 5%, 10%, 20%, we don’t have any sense of what those numbers might be.

Amanda: We don’t know.  I mean from the death penalty standpoint, we’re able, those are the cases that we really looked to in depth.  I mean the problem here is that because there’s no distinction between a principal and a party, that the charging instrument, the indictment doesn’t need to specify the capacity in which someone participated in an offense.  So, the only way to know is really to go back and look in the transcripts in a case.  So, in death penalty cases, that’s where we’re able to do t hat.

Scott: And, you had mentioned earlier that in other states, and you’ve practiced in New York where they do things differently, it’s not that way.  So, tell us in New York, for example, how this might play out differently.

Amanda: Well, like in New York, you have to specify in the indictment how someone perpetrated the offense.  Or, at least specify in a bill of particulars which accompanies the indictment.  So, you have to say, the defendant either assisted in the offense or entered a conspiracy, and then perpetrated the offense through that.  In Texas, you’re just given a charge.  And, there’ a theory behind it, but it’s not specific.  So, you don’t know at the frontend, necessarily, what the prosecution’s theory of the case is.  And, that can change even during a trial, for example.

Scott: And, they don’t really have to prove one or the other.  They can prove either-or, right?

Amanda: Yeah, they can get up and say the defendant was the principal, but even if he wasn’t the principal, he still conspired to perpetrate the offense.  He conspired to perpetrate drug trafficking.  So, you can still find him guilty even if you can’t find him guilty beyond a reasonable doubt of perpetrating this offense.  You can still say that he entered a conspiracy, and someone else perpetrated this crime in furtherance of that conspiracy.

Scott: That is an amazing thing.  Now, it’s time for a game we call Fill in the Blank.  The name describes it as well as I can.  We’ll read a sentence with a word or phrase omitted, fill in the blank, and explain our answers.  So, let’s get started.  Mandy, you go first.  Despite support from Chief Justice Nathan Heck to the Texas Supreme Court and Judge Sharon Keller, the Court of Criminal Appeals, bail reform legislation to require judges to consider risk assessments before setting bond died in the House this year without a floor vote.  So, Mandy, fill in the blank.  __________ benefits most from bail reform legislation dying.

Amanda: So, I’m going to say prosecutors benefit most from bail reform legislation dying.  And, it’s because defendants who are in jail are most likely to plea their cases out quickly.  And so, their dockets are going to remain small in comparison of what they would have been otherwise.

Scott: Well, that’s an excellent answer.  And, I think it’s certainly true.  I think another group that benefits from bail reform dying are wealthy criminals.

Amanda: There aren’t very many of those, Scott.

Scott: I understand.  But, if you’re a criminal, and you commit a serious violent crime, now they get to just release you if you have enough money.  You don’t have to have your case subjected to some risk assessment where someone decides whether you might pose a risk to people in the outside world.  You can just pay your money and leave.  So, I think wealthy criminals really benefit from this not passing.

Amanda: Yeah, and I guess the other group that we should mention is the bail bond industry which is going to continue to make lots of money off of the backs of indigent defendants in Texas. So, Scott, one of the few bright spots of this session on criminal justice was the passage of a couple of bills relating to debtors prison practices.  In particular, judges can now weigh in fines and fees or assign community service at sentencing, instead of requiring individuals to pay fines.  I think some of this legislation was inspired by a blog post here on Grits.  So, Scott, tell us, judges should feel __________ about the new debtors prison reform legislation.

Scott: Judges should feel proud about the new legislation.  This was a bill that was developed by the Texas Judicial Council, the Chief Justice of the Texas Supreme Court was the main spokesperson, and most vocal leader about it.  And, this is actually a moment when the Texas judiciary stepped up and promoted good ideas, and did the right thing.

Amanda: I know.  I mean I was going to say something similar, and that judges should feel relieved about the new debtors prison reform legislation.  That this is something where they often see a train wreck ready to happen, and they weren’t able to prevent it.

Scott: That’s right.  They’re the main ones having to deal with this day in and day out where someone comes before them, can’t pay, they’re required to go ahead and assign the fines, and wait until they default, and the warrants are issued.  That has to be incredibly frustrating.  So, I agree, that would be a big relief.

So, after Sandra Bland was arrested at a traffic stop.  She was pulled over for failure to signal a lane change, you might recall.  One of the key reforms proposed in response was a bill that actually passed the legislature back in 2001, but was vetoed by then Governor Rick Perry.  It would limit the circumstances under which police officers can arrest people for class C fine only misdemeanors. These are offenses so petty that the maximum punishment is only a fine, not jail time.  So, when police take someone to jail over them, they’re already being punished more than the maximum amount allowed by law.  Bills were filed to fix this in both chambers by both Democrats and Republicans, but the bill was another one that never received a floor vote in either chamber.

So, Mandy, fill in the blank.  The Legislature was __________ to allow police officers to continue arresting people for non-jailable offenses.

Amanda: So, I’m going to go with the Legislature was pennywise and pound foolish to allow police officers to continue arresting people for non-jailable offenses.  From my perspective, this is the ultimate spending of other people’s money where you’re telling, like organizations or local law enforcement, hey, we don’t think that this offense is worthy of jail time, but it’s okay.  You can go out there, spend tens of millions of dollars every year arresting people, booking them anyway, it’s fine.

Scott: Well, I was going to say that the legislature is irresponsible to allow these arrests to continue.  We now, absolutely, know the worst case scenario that can happen.  Sandra Bland is an episode no one wants repeated.  We now know that this is happening quite a bit more than anyone ever suspected.  In Harris County someone did a study of 16 weeks of data, and found that 11% of all arrests were for these class C misdemeanors.  This is an incredibly large number, and we never really understood before this debate around Sandra Bland and the aftermath how common that was, and how many people were affected.  So, I think it’s irresponsible now that we do know to allow that to continue.

Amanda: Okay.  So, moving on to raise the age.  Texas is now one of only five states which consider 17-year-olds adults for purposes of prosecuting them for crimes even if they can’t drink, smoke, or join the military without parental consent.  The House passed legislation to raise the age, but Lieutenant Governor refused to refer the bill to committee killing it on his own authority without allowing senators to consider it.

So, Scott, fill in the blank.  Texas will raise the age when ___________…

Scott: I think technically, formally, the answer is "when Dan Patrick allows them to."  This session, there was a lot of momentum.  And, he simply stuck that bill in his pocket.  He never referred it to any committee at all.  And so, senators really never even had the opportunity to consider it.  And, under the Senate rules, he can control that absolutely.  So, I think technically, it’s when Dan Patrick says.

Amanda: Yeah, and I was going to say something similar which is Texas will raise the age when it’s embarrassed into doing so which we see in a lot of instances.  Like Texas is the last frontier to engage in some reforms until the rest of the country says you’re idiots.

Scott: Well, that certainly can happen sooner than later.  I don’t know that that’s going to convince Dan Patrick, but we’ll see.

Amanda: We’ll see.

Scott: All right.  It’s time for our final segment of rapid fire takes that we’re calling the Last Hurrah.  Mandy, are you ready?

Amanda: I’m ready.

Scott: Okay.  Let’s do this. The Legislature passed a bill to crowd source funding for rape kit testing instead of paying for it with taxes.  Your thoughts?

Amanda: My thoughts are this is great for things like rape kits that people are willing to pay for, but the government shouldn’t shirk its responsibility to pay for criminal justice in like the system in general.

Okay.  So, another bill that was sent to the Governor would punish police departments with a $1,000 a day fine if they fail to report when police officers shoot people.  Will that solve the problem?

Scott: It could.  They should have been already doing it.  But, maybe embarrassing them with a $1,000 a day fine will be enough to get them to file the reports.

So, Mandy, the legislature closed four more prisons in the current budget.  Will they close more in 2019?

Amanda: Yes.  Actually, two out of the four were actually private prisons.  I think what we’ll see next session is more public sector, like government-funded prisons being closed. [Ed. Note: she means government owned. Both private and state-owned prisons are government funded.]

Okay.  So, Scott, the new debtors-prison reform bill is supposed to prevent so many people from being arrested and jailed for non-payment of traffic fines.  How will we know if it worked?

Scott: It will be pretty easy because you can look at two statistics – how many people have their fines and fees waived, and how many people are assigned community service.  Right now, both those numbers are about 1% of defendants.  And, if they go way up then the bill will have worked.

Amanda: Okay.

Scott: So, indigent defendants will now be represented by attorneys at bail hearings in Houston, is this a big deal?

Amanda: Absolutely.  I’m a criminal defense attorney, so I’m always going to say that having a defense attorney is at your advantage, but I do think that having someone there to advocate for each defendant, and the reasons why they should be released is something that’s going to make a huge impact.

Okay.  So, Scott, a bill to abolish the driver’s responsibilities surcharge passed the House, but died in the Senate.  Are you disappointed?

Scott: No, it was a crappy bill, and it deserved to die an ignominious death.

The legislature created a new specialty court exclusively for police officers accused of crimes to give them special treatment and support.  Is this a good idea?

Amanda: Absolutely not.  Specialty court should be based on criminogenic factors.  You know, things like mental health that contribute to a crime.  It shouldn’t be based on someone’s vocation.

So, Scott, despite lots of concern and support from Freedom Works, the Heritage Foundation, none of the asset forfeiture reform bills made it out of the Calendars Committee this session.  What happened?

Scott: The police and prosecutors came from out of the woodwork to oppose those bills and appear to care more about their asset forfeiture funds than just about anything else in their purview. They threw everything they had at those bills to defeat them.

Okay.  Last one, the Texas legislature proved a bill this session to teach high school freshman to be respectful of police.  Will this stop police from shooting young black men?

Amanda: No.  This is victim blaming in its most blatant, I want to say this is a perfection of victim blaming.  It has nothing to do with the underpinning reasons why police shoot minorities.

Scott: All right.  Well, we’re out of time, but we’ll try and do better the next time.  I’m Scott Henson with Just Liberty.

Amanda: And, I’m Amanda Marzullo with the Texas Defender Service.

Scott: We’ll see you next time, people.  Until then, keep fighting for criminal-justice reform.  It’s the only way it’s going to happen.

Transcribed by: www.iDictate.com. Light editing for grammar and clarity by Scott Henson.