Uncertainty at key committee chair slots clouds criminal-justice expectations

Brandi Grissom at the Texas Tribune a couple of weeks ago had an article first published behind their Texas Weekly paywall discussing the approaching transition in leadership on criminal justice issues at the Texas Legislature. Grits failed to mention the story when it came out in part because, among folks who work on the subjects this blog covers, uncertainty surrounding legislative leadership has for many months hovered over nearly every conversation. It's not "news," exactly, but neither will (nor can) the issue go away except with passage of time. Everywhere I've gone recently, it seems, someone brings up the question, so let's pose it: Who will chair the House Corrections, House Criminal Jurisprudence, and Senate Criminal Justice Committees next session?

The Case of the Missing Reformers
On the House side, both committees lose their chairmen this election cycle, with Criminal Jurisprudence also losing its vice chair. There are few obvious candidates to fill either slot as able or experienced as those departing, so either someone will surprise us or a leadership vacuum could form.

Corrections Chair Jerry Madden is responsible with state Sen. John Whitmire for Texas' major de-incarceration reforms passed in 2007 and has immersed himself deeply into the issues and agencies within that committee's jurisdiction. His departure will be a profound loss, especially if his replacement does not support continuing and extending Madden's work.

The problem is just as pronounced in Criminal Jurisprudence, where Chairman Pete Gallego retired to run for Congress. All the current heavyweights and senior members will soon be gone and the committee completely revamped. The absence of Reps Hartnett and Aliseda will be particularly hard-felt losses in terms of smarts, experience and gravitas. Chairman Gallego carried many of the innocence-related bills that passed in 2009 and 2011, including eyewitness ID reform, corroboration for jailhouse snitches, and expanding access to post-conviction DNA testing. Who if anyone is prepared to become a comparable champion in that slot?  ¿Quien sabe?

The Case of the Missing Gatekeepers
Besides any proactive legislation, there's also the arguably just as important gatekeeper role that a strong chairman must play, a role best served by a chair who's developed sufficient policy expertise (both on their own and within their staff) to vet proposals and cull as much of the foolish, political stuff as possible. This is an incredibly important but under-appreciated role because a lot of bills filed on criminal justice topics are simply terrible ideas suggested by ill-informed or self-interested people.

My principal critique of Pete Gallego's chairmanship was that he refused to play a significant gatekeeper role on criminal-penalty enhancements, basically deferring to the "will of the members," as they say, whose knee-jerk reaction was too often to criminalize and punish anything they didn't like, usually with a first-order assumption that harsher punishment is "better" punishment. (Typically, the Legislative Budget Board claims that this doesn't cost anything.) For the most part Chairman Gallego let that gatekeeper task fall unhappily to Criminal Justice Committee Chairman John Whitmire in the Senate, whose lonely but heroic efforts to mitigate the wave of criminal penalty enhancements coming out of the Texas House over the last decade go too-much unappreciated.

John Whitmire's long view
Speaking of whom, on the eastern end of the capitol, state Sen. John Whitmire has commanded the Criminal Justice Committee for years. But if Lt. Gov. Dewhurst wins his runoff and someone else takes his place, that chairmanship could be one that shifts to a Republican. In that case, some statehouse wags suggest state Sen. Joan Huffman as a possible replacement. I don't always agree with Sen. Whitmire, but from a perspective of both legislative experience and institutional memory, on its face that'd be a huge loss. It also would call into question whether Texas will continue down a reformist path or begin building more prison units.

Sen. Whitmire famously  partnered with Rep. Jerry Madden to pass Texas' much-vaunted de-incarceration reforms, as well as helping shepherd Texas' innocence bills through the senate side of the process. Some fear those causes would find a much less sympathetic ear if Huffman were chair, and certainly she has not to date demonstrated similar priorities. OTOH, she's expressed reluctant support for the 2007 probation reforms and voted for much of Texas' recent "innocence" legislation, after opposing or seeking to weaken pieces of it. But the even bigger loss would be in sheer institutional memory: Whitmire chaired that committee (with John Bradley as his legal counsel, ironically) when Texas rewrote our penal code in 1993, setting the stage to fill the vast new prisons authorized for construction during the Ann Richards era. So when, in the wake of the 2003 budget crunch, the Lege of necessity began tinkering with the system, culminating in Texas' much-praised 2007 prison diversion package, Whitmire exhibited a scope of institutional knowledge coupled with a capacity for legislative nuance that few in the capitol could match.

'Heavy is the head that wears the crown'
All that said, heavy is the head that wears the crown. As any recent GOP House Corrections Committee Chairman (Madden, Allen, Haggerty, Hightower) would tell Sen. Huffmn, practical reality on many of these questions quickly trumps ideology when it comes to legislative policy and budget writing. Naysaying and bomb throwing is something one does from the bleachers: As chair, IMO the budget crunch combined with the vast expense and immense, bloated size of the justice system would force upon Huffman the same set of Hobson's choices imposed on Texas' Republican legislative leadership for the last decade. If that's true, her past, publicly expressed positions might not be an accurate predictor of how Sen. Huffman would behave as chair.

For that matter, Whitmire is not going anywhere and he remains arguably one of the most effective senators in the upper chamber, even with Dems in the minority. Time will tell. And of course, if Lt. Gov. Dewhurst fails to win his runoff - not a sure thing, by a longshot - it may be a moot point anyway.

'Waiting is the hardest part'
Tom Petty warbled that "the waiting is the hardest part," and that's the situation here: We'll know after the runoffs whether there will be a new Lt. Governor. (One supposes Dewhurst's replacement could re-up Whitmire's chairmanship, though conventional wisdom says he or she would shuffle the deck and name their own people.) But on the House side, uncertainty will remain until late January of next year, perhaps even prolonged by Rep. Bryan Hughes' announced Speaker's race. (Those East Texas boys are troublemakers, aren't they?) By that time, new House chairs will be learning of their responsibilities just at the moment when the process begins in earnest, with little planning or lead-in time to approach the session with a coherent, consistent strategy. The risk is that chairs thus appointed are weaker, not well-informed on the system's details, and worst of all reactive, failing to set an agenda or play a gatekeeper role.

To Grits, there's another factor even more disconcerting than the leadership transition: The Texas House next year will include a sizable population of freshmen and sophomores who in many cases barely yet understand how the legislative process works, much less the criminal-justice system, and are ill-suited to take on the types of leadership roles that will be much more immediately thrust upon them, not just in 2013 but also the years immediately ahead. This is one of several reasons Grits is not a fan of term limits: The learning curve is too steep for legislators to learn all they need to run complex corrections (or health, or education, or transportation) systems in just a few years of part-time attention. The Whitmires, Maddens and Gallegos of the world have been thinking about these topics nearly round the clock for many years. Anyone who replaces them has a lot of quick thinking to do, and that's if they hope to merely tread water.