Monday, May 30, 2011

'The New Math': Prosecutors vs. the Tea Party

Shannon Edmonds at the Texas District and County Attorneys Association last week bemoaned pro-civil liberties views among Tea Party-backed politicos, worrying that legislators appear less fearful than in the past of openly criticizing prosecutors and their expansionist view of government:
This session's infusion of Tea Party sentiment in the legislative process has affected the standard law and order calculus that we use to gauge the potential fate of various bills. That "Tea Party sentiment" can be boiled down to this: "The government is the enemy. You work for the government. Do the math." Think we're kidding? Earlier this session, unsuspecting prosecutors who came to testify on a bill that would impair your budgets had to fend off a chairman who equated prosecutors with the Mafia, prompting one DA to profess surprise that he had apparently traded his white hat for a black one when he entered the Capitol. But that was just one early incident; let us share with you a more recent example.

Earlier this week, SB 1717 by Duncan/Lewis, an omnibus judicial reform bill, became what we call a "Christmas tree," so named because of all the amendments that other members tried to "hang" on it. Many of those amendments were formerly dead bills, including HB 1507 by Christian, a prosecutor-supported bill that would authorize non-lawyer JPs to issue evidentiary search warrants in smaller counties. Once offered, the amendment immediately started taking fire from several House members—urban and rural, Democrat and Republican—who expressed concerns about expansive searches, especially relating to blood draws in DWI cases. Now, there has always been some generalized resistance at the capitol to the existence of non-lawyer magistrates, but this time, the anti-government Tea Party effect crystallized that opposition into a solid voting bloc that defeated the amendment by a stunning vote of 17-121. As a result, the author of the amendment joined the ignominious "100 Club" for putting forth a matter that drew over 100 "nay" votes. We bring this to your attention because it is only one of several indications that things are changing at the state capitol. Just be glad that we passed some blood draw legislation last session, because if we hadn't, that bill would be D.O.A. this session. And that, friends, is the new legislative math for the foreseeable future.
Shannon's not the first to notice the difference between small government and Big Government conservatism: The Economist this week featured an article describing how the former approach is transforming the politics of criminal justice, including a discussion of initiatives in Texas. But it's especially notable (and heartening) that such sentiments now extend beyond budgeting to Fourth Amendment questions.

RELATED (5/31): From Ilya Somin at The Volokh Conspiracy, "The Tea Party Movement and Popular Constitutionalism."


Anonymous said...

How nice! So drunk drivers can hide evidence in small counties where the JP's aren't lawyers but not in larger counties where the judges are lawyers? Makes perfect sense to me! I guess the lesson from this is that if you're going to drive drunk and imperil the lives of families and other innocent motorists, it's better to do it in a rural county! Thanks to those Libertarians for standing firm in support of Texans' time-honored right to drive drunk! Woo-effing-Hoo! Hand me another beer, Grits!!!

Anonymous said...

A drunk illegal alien ran through a road barrier Saturday night and killed a Houston police officer who was working an accident scene on Loop 610. The officer left behind 2 kids and a wife who's 6 months pregnant. I wonder if his family thinks that is "heartening?"

Gritsforbreakfast said...

Complain to your local Tea Party I suppose, 1:59, and the 121 legislators who voted against the DAs. That's a pretty overwhelming majority of Texas legislators who disagree with you.

And 2:15 (same person, I'm sure), do you suppose allowing non-lawyer JPs to do search warrants would have prevented the death in Houston, or are you just engaging in demagoguery? Seems like the latter.

Don said...

The point is that if we are going to have these blood draws that require a warrant, there should be sufficient probably cause. sometimes a non-lawyer JP isn't capable of determining the legalities of probable cause/reasonable suspicion issues. The 4th amendment already has been reduced to extinction. But we still have it.

don3330 said...

Sorry. Having trouble getting the comments to publish because I had to redo my google sign-in.

Anonymous said...

Of all the JP's in Harris County, I think only two are lawyers. So, I'd say there's no big town bias here. Especially since even the lawyer JP's can't issue blood draw warrants.


Anonymous said...

an even beter alternative would be to put it into the drivers license law. Where you agree to comply with law enforcment in which every methed they chose for a dui stop be it touching the nose, blowing in the baloon or drawing blood which your license being suspended on refusal.

no more warrant needed.

that's how florida's done it for decades

Gritsforbreakfast said...

1:25, Texas drivers lose their license now if they don't take a breathalyzer, but the courts have ruled blood draws are more intrusive and require a warrant. You can't reasonably argue that having a driver license should all of a sudden strip all drivers from every Bill of Rights protection. (Perhaps getting a driver license should also exempt one from the ban on "cruel and unusual punishment" so drunk drivers can be punished with maximum harshness - there's no difference in the suggestions from a Constitutional perspective.) Besides, thanks to the Driver Responsibility surcharge, we know that most people who lose their licenses continue to drive.

The irony is, there are more effective ways to reduce DWI, but the US law enforcement fetish means we only use one tool in the toolbox. When the only implement you have is a hammer, everything looks like a nail.

Soronel Haetir said...


It's not having a driver's license that would be the operative fact, it would be the actual driving after accepting the license. I could see legally being able to attach some very onerous conditions to that privileged. Agreeing beforehand to a blood draw is at the very low end of the scale of nastiness.

Gritsforbreakfast said...

Soronel, Texas stripped licenses from 1.9 million drivers under the driver responsibility surcharge and most of them still drive. Given that history, what makes you think people would change their behavior by expanding the number of circumstances where one loses their license?

FWIW, Texas judges have been pushing to eliminate all license revocations that aren't federally mandated because the tactic just doesn't work. The judicial liaison for the Texas Center for the Judiciary last year "called for ... elimination of the current system of driver's license suspensions (ALR) and special need licenses. Only those currently required by federal law should be retained, with those being placed in one statue."

Anonymous said...

Grits, I don't see you jumping up and down to oppose the intrusive TSA patdowns for airline passengers by the Obama Administration. Or did I miss you support for Sen. Dan Patrick's bill prohibiting such groping? I wonder how many innocent motorists are killed on the public highways each year by drunk drivers vs. people killed by terrorist plane hijackers? Soronel is correct. There is no "right" drive on public roadways, just as there is no right to fly on a commercial airplane. If the Legislature would go ahead and simply criminalize the refusal to blow into the intoxilyzer, there would be no need for blood draws. Either way, it's all about a drunk trying to hide evidence of his/her intoxication. I don't think the constitution protects that.

Anonymous said...

I'm from Tyler where the police write twice as many tickets as anywhere else and the judges and prosecutor lead the state in incarceration rates....that means we Tylerites must be twice as criminal as anywhere else in Texas OR twice as safe. Neither is true. It's all just BS revenue raising and "tuff-on-crime" grinding up of defenseless poor people.

You think driving would be any less safe- (and it's very safe), if we tossed all traffic laws in the garbage and just let folks drive at their own risk? I don't. I don't think ANY of it makes a gnat's worth of difference. It's all just bureaucratic bovine by-product.

Anonymous said...

'Either way, it's all about a drunk trying to hide evidence of his/her intoxication. I don't think the constitution protects that.'

Yeah...let's just draw a line through that peskly little fourth just gets in the way of effective law enforcement, doesn't it....what were the founding fathers thinking?

Anonymous said...

Type of Conviction

Surcharge Per year for 3 years

1st Driving While Intoxicated (DWI) Offense = $1,000

Subsequent DWI = $1,500

DWI with blood alcohol concentration of 0.16 or more =

Gritsforbreakfast said...

9:30, you did miss it. I supported that legislation, and it's another example of Tea Party support for the Fourth Amendment, which IMO is a positive development.

Also, it's not "hiding evidence" to insist that a warrant be issued before performing a search that would otherwise violate the Fourth Amendment. Police would catch more crooks if they could enter everyone's home without a warrant and rifle through your stuff, but that outcome isn't worth the cost to personal liberty.

Bottom line: The Fourth Amendment is nearly dead in this country and I support any reasonable efforts to resuscitate it. I don't believe its infringement generates sufficient additional safety at the margins to outweigh the overall reduction in personal liberties guaranteed in the Bill of Rights. The pendulum has swung too far toward authoritarianism and IMO it's time to reverse the trend.

DLW said...

Look at Article 1, Section 10 of the Texas Constitution. The third sentence begins, "He shall not be compelled to give evidence against himself...........".

1:59:00 PM, from that language, where do you find an exception that allows the taking of blood over the Citizen's objection to test it for blood alcohol?

PirateFriedman said...

It is outstanding to see libertarian influences in the Republican party. Too bad, the big government conservatives will try to manipulate them. Let's see how long until the tea party people sell out.

But until then, good job standing up to the DAs!