Tuesday, May 14, 2019

How confused Texas Democrats killed #SandraBland legislation, twice; or, how police kill a civil-rights bill when legislators overwhelmingly support it

The death of HB 2754 (White) limiting arrests for Class C misdemeanors was the strangest bill ride in which Grits has ever participated. Readers will recall that this provision was stripped out of the Sandra Bland Act in 2017, so reformers came back this year for another bite at the apple. The bill has overwhelming support in the Texas House, but now it's dead.

Let's try to unpack what happened:

In essence, Democrats killed the bill twice: first because they didn't understand the legislation (or why current law allowed Sandra Bland to be pulled from her car), and then because a bunch of them left work before the big vote on Friday, so the rules couldn't be suspended to reverse the error.

For bill author James White, a Republican, it's evidence that no good deed goes unpunished. His HB 2754 was narrowed in committee to the Sandra-Bland language because Rep. Senfronia Thompson's HB 482 couldn't get out of the Homeland Security and Public Safety committee. Advocates believed they could count to a majority, but Democratic Homeland Chairman Poncho Nevarez wouldn't give Thompson's bill a vote. So, essentially similar language was substituted into White's HB 2754, which had been referred to Chairwoman Nicole Collier's Criminal Jurisprudence committee. Again, the bill had the votes, so she brought it up and voted it out. The bill found sufficient support to make it through Calendars and landed on the House floor with plenty of time to pass.

First Kill
Before the second reading vote on the House floor, Chairman Nevarez brought White an amendment from the police unions to let officers arrest if the offender failed to present identification. White declined to add it, and Nevarez did not press the matter. On the morning of third reading, however, the police unions brought the amendment to White directly. He added it under his own name on 3rd reading, and the bill passed the House 126-20, with Nevarez "absent."

Because it did not change current practice (officers currently ask for identification at traffic stops in order to write you a ticket and HB 2754 would not have changed that), the amendment was not clearly substantive. Instead, it was a "poison pill" designed by the police unions to change the conversation from overreaching police power to verification of identity at traffic stops - an issue covered by different laws not altered by HB 2754, poorly understood by most of the membership, and likely to gin up dissension. It worked.

After the bill passed, Democrat Shawn Thierry complained to White about the amendment, and in a rare move, he agreed to bring the bill back up and strip it off, even though HB 2754 had already passed on to the senate. Advocates had no idea he was planning to do this. And thus the bill came back up late Wednesday night after it had already passed in the lower chamber.

However, once the bill was brought back up and the amendment was off, Thierry began nitpicking at the rest of the bill in ways that fundamentally failed to comprehend either current law or the effects of the legislation. Currently, police can arrest absolutely anyone for any Class C charge and no other reason; the bill limited this power. But Thierry appeared to believe the bill expanded police authority rather than limiting it. 

Thierry dug in on an open-ended clause in the new limitations that would let police arrest if they had probable cause to believe someone wouldn't show up in court. This was compromise language demanded by law enforcement; certainly it was broader than Grits would prefer, and was the most open-ended exception. But requiring cops to have "probable cause" to believe someone won't show up is an improvement over giving them wholesale authority to arrest without any such justification. Taken as a whole, the measure limited arrest authority compared to current law. Thierry mistakenly believed it gave police new arrest powers.

Then, Nevarez, along with his roommate, Terry Canales, a criminal-defense attorney, stridently doubled down on Thierry's confused interpretation. Another Democrat even accused White of promoting racial profiling! In reality, the opposite is true: when policies compliant with HB 2754 were installed at Austin PD, Class-C arrests declined by nearly two thirds and racial disparities lessened.

House Criminal Jurisprudence Committee Chairwoman Nicole Collier, one of a handful of Democrats who stuck with the bill, tried to help White out with questions that clarified the language. But he became frustrated and called for a vote. Confused Democrats sided with the bill critics en masse, including some who were coauthors!

And with that, a black Democrat pursuing a misguided argument killed Texas legislation which, had it been law, would have prevented Sandra Bland's arrest. Ironically, on her Twitter page, Thierry includes the following quote from Martin Luther King, Jr. in her bio: "Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will." I think, at this point, we can all agree on that!

As an aside, I bet Chairman White has learned his lesson about doing Democrats favors. The Republican committee chairman tried to accommodate them - first adding the police-union change that Nevarez had requested, then pulling it off when Thierry complained. As a result, a bill Democrats should all support was killed for his trouble.

Within about 15 minutes of the vote, the Democratic caucus understood they'd screwed up big time, with Nevarez, Garnet Coleman, Harold Dutton, Joe Moody, Nicole Collier, and others coming outside to tell supporters they were going to "fix this." By the next morning, the path was clear. Chairman White agreed to accept one amendment to repair the open-ended text related to failure to appear. Democrats agreed to come back en masse to vote "yes" because the concern had been addressed. Everyone had a path forward.

Second Kill
But it was not to be. Chairman White needed yet another vote, and could have tried to get it the following day when, under the rules, he needed a simple majority. The problem was the calendar: it was the last day that House bills could be heard on "second reading." Bringing a potentially contentious bill back up - one that had already had its day - would mean killing other legislation. With 20/20 hindsight, White should have bucked protocol and done it anyway. Instead, he waited.

So the motion to reconsider wasn't heard until the day after, when it required a 2/3 vote for suspension of the rules. Democrats asked for the bill to be brought back mid-afternoon. The speaker chose to wait until regular business was complete, which frankly Grits thought was reasonable considering we were asking for what amounted to an extremely rare 5th reading vote!

About 6 p.m. Friday - not a late hour for this time of session - the Speaker recognized Garnet Coleman for his motion to reconsider. Initially the rules suspension seemed to pass. But opponents called for vote verification, and 20 Democrats who voted FOR the bill the first time and should have been there to vote for it again had already left the building. (see listing of absent members; excused and unexcused is a procedural difference.) The bill failed to get the 2/3 needed to suspend the rules by just two votes.

One absent Dem that we know of had legitimate reason not to be there: Donna Howard's husband had a medical emergency. But why would Austin's Eddie Rodriguez not show up? Members from Houston, San Antonio, and other drive-able locales went home early for the weekend instead of staying to vote.

If just two of them had cared more about preventing what happened to Sandra Bland than leaving work early to start their weekend, this bill would be on its way to becoming law.

Honestly, why bother seeking election to the Legislature if you're not going to show up on big votes to do your job?

It's possible an amendment vehicle will be found and HB 2754's provisions can be revived. At this point, the bill is supported by a wide majority of House members and opposed by only a few. Just 26 people voted against the bill on third reading, and 37 voted against the motion to reconsider.  So the votes are there if a vehicle is found.

It's easy to blame all this on legislative incompetence. Thierry's failure to understand the bill was the pivotal error that caused everything to melt down. Even if the line she complained about had not been fixed, the bill would have radically limited existing police power to arrest for Class C violations. And blowing a vote so important to core Democratic constituencies because members wanted to get home for Mother's Day weekend is about the lamest outcome possible. All of those absent members should hear about the issue during the next primary.

But at the end of the day, the "poison pill" strategy was promoted by the police unions. They're the behind-the-scenes force ultimately responsible for the loss, however satisfying it may seem to blame confused or absent legislators. That's certainly who I blame.

And that, my friends, is an example of how powerful interests can kill a bill opposed by only 37 out of 150 House members through confusion and misdirection. I've got to hand it to them; their strategy worked.

See related MSM coverage:

Monday, May 13, 2019

Dems killed #SandraBland bill - details to come

This blog has closely covered efforts at the Texas Legislature to pass HB 2754 limiting arrests for Class C misdemeanors, but the bill died last week  thanks to Democratic incompetence. (See coverage here and here, plus Twitter commentary.) First, Democrat Shawn Thierry misunderstood the bill, driving her colleagues to vote against legislation that, had it been law at the time, would have prevented Sandra Bland's arrest, incarceration and death. Then, on a motion to reconsider after Dems recognized their mistake, the bill failed to earn a rules suspension by two votes because 20 Democratic supporters went home on Friday before their work day was finished.

Certainly, there were Democratic champions for this bipartisan legislation. Reps. Garnet Coleman, Nicole Collier, Joe Moody,  Ron Reynolds, and Senfronia Thompson all pushed hard for the measure. But they couldn't stop their colleagues from blowing the bill up.

Over the weekend, I wrote up the bizarre denouement of this process - in which legislation died that only 37 of 150 House members opposed - but have decided to withhold commentary for a few days to let my anger die down. More later.

Friday, May 10, 2019

Bail-bondsmen amendments made 'reform' bill actively harmful

Texas' bail-reform legislation remains a mess and Grits has said for weeks the bills not ready for prime time during the 86th Texas Legislature. But after an amendment from the bail-bond industry was tacked on to HB 2020 (Kacal) yesterday in the Texas House by Democrat Oscar Longoria, "bail reform" has gone from a premature, ineffectual and pointless bill to an actively harmful one. (See the Texas Tribune for a quote-both-sides version of the story.)

According to our friends at the Texas Fair Defense Project:
The amendment would: 
REQUIRE money bond and disallow non-monetary bond, aka personal bond, for a huge number of people, including:
  • People who are charged with possessing just four grams of any controlled substance;
  • People who have a history of failure to appear after being released on personal bond within the last two years. Failure to appear is not defined and could include non-intentional failure to appear. Failure to appear rates are also closely tied with socio-economic status.
  • People who are charged with any level of crime that has a victim, including any level of assault. This means that a high school kid who gets in trouble for pushing a classmate would not be able to get out of jail unless he or she had money.
Codify bail schedules, which have resulted in litigation across the state. Bail schedules mean that anybody with money can get out of jail. This is particularly bad for a bill titled the "Damon Allen Act," since the man who killed Damon Allen was released because he had the money for bail, and so could have gotten out under this bill automatically (as could anybody with money). 
HB 2020 also now has an amendment that would put a bail bondsman on the new Bail Advisory Commission that will be making recommendations for pretrial detention practices, which will ensure that there will always be people with power on the commission who want to increase reliance on money bond. This would mean that wealthy people can get out of jail while poor people have to sit in jail until they take a plea bargain (even if they're innocent). 
HB 2020 is now the complete antithesis of bail reform. It will drive up pretrial detention rates, drastically increase jail costs for counties, and force judges to rely on monetary bond over any other alternatives. 
Yesterday's bill passed on a voice vote, but third reading votes are all on the record. I suppose there's some small hope that House members will vote against the bill or peel off the amendment, and they should. But if not, here's hoping Senate Criminal Justice Chairman John Whitmire will (please!) kill the bill in the senate.

The legislation cannot be "fixed" because the federal 5th Circuit Court of Appeals has yet to define the questions the Lege must answer. In two years, the 5th Circuit will have ruled in either the Dallas or Galveston litigation and we'll know what constitutional baseline the Lege must meet. Until then, this entire endeavor is premature, and now potentially harmful.

UPDATE: The House removed the Longoria amendment on third reading.

Tuesday, May 07, 2019

My last sliver of hope regarding 2019 marijuana reform in Texas: political pragmatism

Lt. Gov. Dan Patrick declared HB 63 (Moody) reducing penalties for marijuana possession "dead" in the Texas Senate, and Senate Criminal Justice Chairman John Whitmire has said the bill wouldn't get a hearing in his committee, though he's backtracked on that a bit.

Grits still harbors the slightest of hopes that the Lt. Governor may change his mind. Here's why.

First, the bill is different from what he's criticizing. Patrick opposed "decriminalization" in his comments, which is what El Paso Democrat Joe Moody had proposed in his original bill.

Governor Greg Abbott, by contrast, had proposed keeping marijuana possession criminal but reducing the penalty category from a Class B to a Class C misdemeanor. His reasoning had nothing to do with legalization: Rather, he was concerned about counties wasting money incarcerating pot smokers and paying for their lawyers if they're indigent.

Judging from his comments, when the Lite Guv made them, he was unaware that language matching the governor's proposal had been substituted on the House floor for Moody's decriminalization bill. If that's true, maybe he won't be as opposed once it's clear (as it should be by now) that "decriminalization" is not what the House passed.

The second reason I remain hopeful is that Republicans at the capitol are justifiably worried about the 2020 election cycle, and killing HB 63 is bad politics.

Democrats made substantial gains in the Texas House in 2018. If they win nine (9) more seats in 2020, which is not remotely outside the realm of possibility, given prevailing national-election dynamics, Democrats will select the next Speaker of the House, just in time for redistricting in 2021.

Which brings us to marijuana: Reducing marijuana penalties is a popular political issue, supported by 62 percent of Texas Republicans and 79 percent of Texas Democrats, according to a Texas Tribune poll. That makes it a wedge issue for Democrats (not to mention Libertarians, who may swing elections at the margins by siphoning off Republican votes).

Republicans in swing districts, by Grits' calculations, supported HB 63 by a 2-1 margin. They know they have to run to the center to win a general-election contest, and most of them think this hill isn't worth dying on.

For that matter, the state GOP party platform endorsed reducing marijuana penalties to a civil infraction with a maximum $100 fine. There's an extent to which Patrick's stance is out of step not just with the electorate and legislators in swing districts, but also his own party.

The 2020 election will be dominated by a national referendum on Donald Trump, and the fates of Republicans in swing districts may be decided by the extent to which candidates can convince new voters to split tickets.

Marijuana reform is a popular, readily understood issue with which Rs in those swing districts could distinguish themselves, if the Legislature were to pass HB 63. But if the Lt. Governor's hard "no" stands, a yes vote on a dead bill won't help them.  What other wedge-issue legislation is being passed to help R members withstand a "blue wave"? This is the highest profile-example I can think of, by far.

Handing a popular issue to Democrats with which 62 percent of Republicans agree during an election cycle with so many swing districts in play makes no sense. The smarter play is to steer into the skid: Pass HB 63 and allow Republicans in swing districts run on less government, lower costs, and more freedom. Take the issue away from Democrats and make it a wedge issue with their base.

So there's my sliver of hope: 1) Dan Patrick's public statements appear to leave open options that don't endorse "decriminalization," including the governor's preferred approach (which is what's actually in the bill that came over to the senate). And 2) Republicans need to bolster their state reps in swing districts if they want to control the Texas House during redistricting next session.

Or, HB 63 could just be screwed. That's more likely, but hope springs eternal.

Sunday, May 05, 2019

As jarring #SandraBland news arrives, Texas House will consider limiting arrests for fine-only traffic offenses

NUTHER UPDATE: This legislation was brought up on a motion to reconsider, and killed by Democrats who did not understand the bill! As of this writing, we're waiting on another motion to reconsider where the bill could be revived. If that doesn't happen by midnight tonight, the bill is dead and House Democrats will be responsible for killing legislation which, had it been law at the time, would have prevented Sandra Bland's arrest.

UPDATE: This bill passed the Texas House on second reading late Tuesday night on a voice vote. Congratulations to Chairmans James White, Senfronia Thompson, Garnet Coleman, and everyone else who helped make this happen. Now on to the Senate, where Dawn Buckingham had filed similar legislation on the eastern side of the building.

(Original post.) Against the odds, and the wishes of police unions, HB 2754 (White) limiting arrests for fine-only Class-C misdemeanor violations is scheduled for a floor vote in the Texas House tomorrow (though it's about 100 bills down on the calendar, and so could be pushed til Tuesday).

The legislation has its roots in the US Supreme Court case, Atwater v. Lago Vista, which was decided in 2001. And the issue came to a head in Texas after the death of Sandra Bland in the Waller County Jail following a traffic-stop notoriously gone bad. (More news on her case will be coming out this week, according to this teaser from WFAA-TV in Dallas, which discovered Bland was filming the trooper with her cell phone at the time she was arrested. Wow! How could that have been concealed?)

In response to her case, the Texas Legislature passed the Sandra Bland Act. The original version of that bill, filed by House County Affairs Committee Chairman Garnet Coleman, included a similar provision to HB 2754 limiting Class C arrests. But it also included an array of other, important reforms that got much less publicity. When the limit on arrests was pulled out of the bill in the senate, many activists behaved as though the legislation had been gutted. That was far from the case. It included new protections for the mentally ill, required an independent investigation of every death in custody at a Texas county jail, and most importantly in the context of HB 2754, expanded racial profiling reporting by law enforcement to include data on how often police arrest people on Class C misdemeanor violations.

In 2017, law-enforcement representatives told the Texas Legislature that Class-C arrests rarely happen. But really, they weren't tracked by anyone, so nobody knew.

Now, between the Sandra Bland Act data and an analysis of jail booking data from 11 counties performed by Texas Appleseed, in 2019 we have learned much more about how often people are arrested for Class C misdemeanors than was previously understood.

Appleseed counted more than 30,000 Class C arrests in 2017 from 11 Texas counties making up 39% of the state's population. If the same Class-C-arrest rate held for the rest of the state, that would mean more than 76,000 people were booked into county jails that year when a Class-C misdemeanor was the highest charge.

From the Sandra Bland Act data, we learned about the subset of Class C arrests that occur at traffic stops. Just Liberty analyzed data from police departments in cities with 50,000 population or more and sheriffs in counties with more than 100,000 population. Collectively, those agencies arrested one out of every 150 drivers pulled over at a traffic stop for a Class C misdemeanor (excluding arrests for outstanding warrants, which were broken out separately). Some jurisdictions, however, arrested much more often. Waco PD, for example, arrested one out of every 22 drivers they pulled over.

In the Appleseed report, Class C arrests made up between seven (7) and 16 percent of all bookings at the county jails studied. This corroborates other data points on the topic. A 2016 analysis of Harris County jail bookings found 11 percent were for Class C misdemeanors. The Austin Statesman last month reported that Class Cs made up 12.5 percent of jail bookings in Travis County in 2017.

If it's true that more than 76,000 people were arrested for Class Cs annually, that makes it one of the largest arrest categories. Texas DPS estimated that roughly 75,000 people per year are arrested in Texas for user-level marijuana possession, as a point of comparison. So it turns out, these arrests take up a significant chunk of police officers' time.

How much savings are we talking about? Austin PD recently changed its local policies to restrict Class C arrests in a way that conforms with the requirements of HB 2754. They saw an immediate 57% decrease in Class C arrests after the new policy was implemented, with no associated harms to public safety.

In a year when the Legislature wants to cap growth in property tax revenues, it would behoove them to also reduce local expenses. Eliminating tens out thousands of jail stays for Class-C misdemeanors would be a boon to local budgets that helps counter growing caseloads and costs. (Ditto for reducing marijuana penalties, btw.)

Here's hoping the Texas House passes HB 2754 without incident, and that it's well-received in the senate.

Grits has been thinking and writing about Class C misdemeanors for a while now, so rather than revisit all the arguments for this legislation, here are the main items I've published on the topic.

Thursday, May 02, 2019

In Austin, a reminder why indigent defense should be independent of the judiciary

Judges in Travis County later today will consider a public-defender proposal that became controversial when the local criminal-defense bar stormed away from the table like spoiled children. (The judges initially opposed a PD office outright, but some of them appear to have softened up.) Luckily, not all the defense lawyers on the working group quit, more were added, and the county-convened working group continued its work, producing this proposal for a public-defender office to handle 30% of the indigent caseload in Travis County criminal courts.

In a sop to the local defense bar (which, personally, I wouldn't have afforded them, after their self-righteous hissy fit), the proposal solicits new resources for the existing "Managed Assigned Counsel" system, which has been an embarrassing failure by any measure. But it would also establish a public-defender office in the largest American county not to have one. And over time, Grits has little doubt which system will prove more effective.

The managed-assigned-counsel system in Austin has been criticized for not promptly appointing counsel, and attorneys with the largest caseloads took on MORE cases under the CAPDS system than before. Inmates spent more time in jail. And in general, outcomes for indigent defendants in Travis county were worse than defendants with private lawyers, while national analyses have found outcomes for public defenders and retained counsel are much closer.

So if Travis County judges were making a decision based on the merits, they should absolutely support a public-defender office. But here's the thing: Ethically, it shouldn't be any of their business.

Texas law gives elected judges tremendous control over appointment of counsel for the indigent. However, the very first of the American Bar Association's 10 principles on indigent defense declares that the appointment, payment, etc. of defense counsel should occur independently of the judiciary. That's the county commissioners' business, not theirs.

That's necessary to avoid the appearance of conflicts of interest. You don't want a judge appearing to pick a poor attorney for a maligned defendant, nor choosing an exceptional one for a family friend. You don't want them hiring lawyers with a reputations for "moving cases" at the expense of asserting defendants' rights. Plus, criminal-defense lawyers who practice before local courts frequently are among the largest contributors to judges' electoral campaigns. So from the outside, an appearance of reciprocity may exist no matter what the individuals' intentions. (Occasionally, in Texas, it's more than just an appearance.)

All of this is a problem. Thus, the ABA's first "principle" of indigent defense reads: "The public defense function should be independent from political influence and subject to judicial supervision only in the same manner and to the same extent as retained counsel." Specifically, the ABA said "selection, funding, and payment" of attorneys should be independent of the judiciary.

As such, here's the bottom line: As politicians, Travis County judges legally can intervene to oppose a public-defender office. But as attorneys and custodians of the legal profession, they should refrain and support what the commissioners court wants to do.