Rounding out Grits' synopsis of interesting cases from the Texas Court of Criminal Appeals hand down list last week (see also here, here, here, and here), I should mention that the Court overturned five more drug convictions on Wednesday because lab reports came back after the plea deal saying there were no drugs or less drugs than alleged by the government.
These cases have become increasingly common. Other than expanding funding for crime labs, I'm not sure what the practical solution is in an era when the Drug War operates at such high volumes. But perhaps eliminating trace cases would help reduce crime-lab caseloads and wait times, particularly in Harris County which saw three of the five cases overturned last week.
Sunday, November 30, 2014
Ticket quotas in Cowtown, privatizing Terrell State Hospital, and other stories
Here are several important articles that I don't have time to adumbrate but which you should read:
- Deanna Boyd, Fort Worth Star-Telegram, Nov. 23: "Prosecutor says ticket quota derailed cases against officers" (a big deal, read the whole thing)
- Emily DePrang, Texas Observer, Nov. 28: Why is Texas privatizing the Terrell state psychiatric hospital and "picking a notorious company to run it?" (haven't we already been through this once in Montgomery County?)
- Elizabeth Campbell, Star-Telegram, Nov. 26: "Johnson County settles jailing lawsuit: Man was falsely imprisoned, denied access to lawyer"
- Chuck Lindell, Austin Statesman, Nov. 29: "Will Fran and Dan Keller be exonerated?"
- Robert Garrett, Dallas News, Nov. 29: "Abbott seeks new spending but wouldn't raise tax revenue" (the maths thing again)
CCA: Junk science writ covers bad scientists as well as bad science
As birthday presents go, Texas Court of Criminal Appeals Judge Cathy Cochran quoting me in a concurrence on the winning side of Ex Parte Robbins - the first, pivotal case interpreting the state's new junk science writ, as it's been called, at Art. 11.073 of the Code of Criminal Procedure - was the best one I got this year. That statute, which became effective Sept. 1, 2013, provided a new basis for habeas relief if a defendant can show, by a preponderance of the evidence, that they would not have been convicted if erroneous scientific evidence had not been used against them.
This is the second time the court considered a writ from Neal Robbins on this topic; see Grits coverage from the first, before the new law had passed. Judge Tom Price was the swing vote who switched positions in light of the new statute. (Congrats to Robbins' attorney Brian Wice for his perseverance.)
The court faced a tough question: What to do when the issue isn't that the field of science changed but the scientist herself was merely wrong and later self-corrected? On a close 5-4 vote, the court decided Robbins deserved relief, reading the statute to maximize the court's jurisdiction over junk-science habeas cases.
The judges divvied up the work. Judge Paul Womack, who will soon be leaving the court, wrote the main opinion. Judge Cochran's concurrence focused on making the case for an expansive reading in the legislative history. (Grits has explained before why she's right about that.) And Judge Cheryl Johnson's separate concurrence made the textual case, arguing that the court is not charged with evaluating science but evidence, which inevitably in court means the testimony of an individual scientist.
Judge Michael Keasler dissented, declaring the majority had reached an "absurd" result interpreting "an admittedly awkward" statute. He argued that the court's habeas jurisdiction under 11.073 should be limited to the narrowest possible class of defendants - extending only to bad science, in other words, but not bad scientists. Judges Sharon Keller and Barbara Hervey agreed with Keasler save for a procedural right they said the defendant had not forfeited. The fourth dissenter, Larry Meyers, ironically believed the Legislature had inappropriately infringed on the court's authority by granting it optional ("may," not "shall") authority over a new class of cases.
Why ironic? While helping the Innocence Project of Texas advocate for passage of Texas' junk science writ, I had occasion to read an excellent book by Paul Halliday titled, "Habeas Corpus: From England to Empire," which sampled every fourth year's habeas corpus writs (and selected, notable others from the off years) from the King's Court in England over hundreds of years to portray the writ as a dynamic arena for turf wars between the judicial and legislative branches. Over the course of British history, Halliday argued, and I would argue over American history (certainly Texas'), too, most legislation regarding habeas corpus has restricted courts' jurisdiction. The best, recent example in Texas were legislative restrictions on habeas in the '90s aimed at speeding up executions, strictures that one of their legislative authors, Pete Gallego, has said went too far.
Thanks to Halliday's book, as the Innocence Project of Texas promoted the legislation being interpreted in Robbins, (a task with which I assisted them as Policy Director for several years), I was acutely aware that this bill cut against the historical grain by granting the court more habeas power rather than limiting it. As originally conceived, habeas corpus was a function of the unfettered divine right of kings, and thus the King's Court, to bestow mercy on their subjects. Limitations on the Great Writ arose when the will of the Court conflicted with elected Parliaments down the line.
Today, we're centuries away from divine rights. Legislative bodies have profoundly constrained habeas corpus and thus the ability of courts to dispense justice to prisoners as they see fit, independent of the popular will of the day. But thanks to 2013 legislation by Sen. John Whitmire and Rep. Sylvester Turner, the CCA has enjoyed a rare reversal of the historical trend of vanishing habeas authority. Meyers' impression is that the Legislature was meddling. My impression is that they were correcting for past meddling.
Otherwise, read the opinions for yourselves; it is what it is. Unless the new court sees things differently next spring (three members of the Robbins majority will be replaced in January), for now the CCA has maximized its jurisdiction to remedy bad scientists in criminal cases as well as bad science.
This was the outcome Grits had hoped for, interpreting the new statute broadly. Even if the timing was serendipitous, there's no question the Robbins decision was my favorite birthday gift of the year.
MORE: From Craig Malisow at the Houston Press.
This is the second time the court considered a writ from Neal Robbins on this topic; see Grits coverage from the first, before the new law had passed. Judge Tom Price was the swing vote who switched positions in light of the new statute. (Congrats to Robbins' attorney Brian Wice for his perseverance.)
The court faced a tough question: What to do when the issue isn't that the field of science changed but the scientist herself was merely wrong and later self-corrected? On a close 5-4 vote, the court decided Robbins deserved relief, reading the statute to maximize the court's jurisdiction over junk-science habeas cases.
The judges divvied up the work. Judge Paul Womack, who will soon be leaving the court, wrote the main opinion. Judge Cochran's concurrence focused on making the case for an expansive reading in the legislative history. (Grits has explained before why she's right about that.) And Judge Cheryl Johnson's separate concurrence made the textual case, arguing that the court is not charged with evaluating science but evidence, which inevitably in court means the testimony of an individual scientist.
Judge Michael Keasler dissented, declaring the majority had reached an "absurd" result interpreting "an admittedly awkward" statute. He argued that the court's habeas jurisdiction under 11.073 should be limited to the narrowest possible class of defendants - extending only to bad science, in other words, but not bad scientists. Judges Sharon Keller and Barbara Hervey agreed with Keasler save for a procedural right they said the defendant had not forfeited. The fourth dissenter, Larry Meyers, ironically believed the Legislature had inappropriately infringed on the court's authority by granting it optional ("may," not "shall") authority over a new class of cases.
Why ironic? While helping the Innocence Project of Texas advocate for passage of Texas' junk science writ, I had occasion to read an excellent book by Paul Halliday titled, "Habeas Corpus: From England to Empire," which sampled every fourth year's habeas corpus writs (and selected, notable others from the off years) from the King's Court in England over hundreds of years to portray the writ as a dynamic arena for turf wars between the judicial and legislative branches. Over the course of British history, Halliday argued, and I would argue over American history (certainly Texas'), too, most legislation regarding habeas corpus has restricted courts' jurisdiction. The best, recent example in Texas were legislative restrictions on habeas in the '90s aimed at speeding up executions, strictures that one of their legislative authors, Pete Gallego, has said went too far.
Thanks to Halliday's book, as the Innocence Project of Texas promoted the legislation being interpreted in Robbins, (a task with which I assisted them as Policy Director for several years), I was acutely aware that this bill cut against the historical grain by granting the court more habeas power rather than limiting it. As originally conceived, habeas corpus was a function of the unfettered divine right of kings, and thus the King's Court, to bestow mercy on their subjects. Limitations on the Great Writ arose when the will of the Court conflicted with elected Parliaments down the line.
Today, we're centuries away from divine rights. Legislative bodies have profoundly constrained habeas corpus and thus the ability of courts to dispense justice to prisoners as they see fit, independent of the popular will of the day. But thanks to 2013 legislation by Sen. John Whitmire and Rep. Sylvester Turner, the CCA has enjoyed a rare reversal of the historical trend of vanishing habeas authority. Meyers' impression is that the Legislature was meddling. My impression is that they were correcting for past meddling.
Otherwise, read the opinions for yourselves; it is what it is. Unless the new court sees things differently next spring (three members of the Robbins majority will be replaced in January), for now the CCA has maximized its jurisdiction to remedy bad scientists in criminal cases as well as bad science.
This was the outcome Grits had hoped for, interpreting the new statute broadly. Even if the timing was serendipitous, there's no question the Robbins decision was my favorite birthday gift of the year.
MORE: From Craig Malisow at the Houston Press.
Saturday, November 29, 2014
Not just movie magic: Why the CCA sided with 'Bernie'
Grits pledged to examine all the notable outcomes from Wednesday's Court of Criminal Appeals hand down list, so I suppose I should mention the Bernie Tiede case in which the CCA granted a new punishment phase hearing to the murderer subject of a (quite good) Richard Linklater movie starring Jack Black as the eponymous "Bernie" and Matthew McConnaughey as the DA whose pleadings are now before the court agreeing to reduce the penalty category from a first to a second degree felony. Tiede has been out on bail awaiting the court's decision and reportedly living in Linklater's house. The media blew up at his release in May. (See exemplar editorial pieces pro and con.)
In a surprising (to me) development, it appears the court may have used the state's new "junk science writ" to reach its conclusion, though the per curiam order did not go into detail. It merely said that the:
Basically, here the State agrees it presented "false evidence" when an expert important to the prosecution's punishment-phase case told the jury that Tiede had an unremarkable mental health history. It turned out he was a victim of child abuse, state and defense experts agree. Since the prosecutor agrees false evidence was presented and the local trial court's findings support the claim, from my perspective the only news here is that the court did not hypocritically up-end its defer-to-the-state-no-matter-what approach when it benefited a defendant. A cynic might think that dynamic only plays one way.
Judge Alcala is turning out to be an important thought leader on the court and an intellectual counter-weight to Judges Keller and Keasler on the pro-government side. Perhaps her presence will make Judge Cochran's lamentable departure easier to bear.
In a surprising (to me) development, it appears the court may have used the state's new "junk science writ" to reach its conclusion, though the per curiam order did not go into detail. It merely said that the:
Applicant alleges there is newly available relevant scientific evidence that contradicts the scientific evidence relied upon by the state at trial, and that false evidence was presented at trial thus undermining confidence in the verdict at sentencing.The substantive debate played out in the dissenting opinion by Judge Sharon Keller and a concurrence by Judge Elsa Alcala, who ironically applied the same deferential standard to local prosecutors and the trial court that one normally sees from Keller and Co. when the state wants to hang-em-high. To be fair, Keller makes some excellent points in her dissent, calling on the court to exercise independent discretion instead of mindlessly parroting the prosecution's party line without justification. I've thought the same thing myself many times reading rulings in which she was in the majority, siding with the State for no other reason (at least publicly stated) than that she had the votes to do so.
The trial court, after conducting a live hearing and based upon an extensive record, has recommended that applicant be granted relief in the form of a new punishment hearing. The State agrees that Applicant is entitled to relief.
Basically, here the State agrees it presented "false evidence" when an expert important to the prosecution's punishment-phase case told the jury that Tiede had an unremarkable mental health history. It turned out he was a victim of child abuse, state and defense experts agree. Since the prosecutor agrees false evidence was presented and the local trial court's findings support the claim, from my perspective the only news here is that the court did not hypocritically up-end its defer-to-the-state-no-matter-what approach when it benefited a defendant. A cynic might think that dynamic only plays one way.
Judge Alcala is turning out to be an important thought leader on the court and an intellectual counter-weight to Judges Keller and Keasler on the pro-government side. Perhaps her presence will make Judge Cochran's lamentable departure easier to bear.
Friday, November 28, 2014
Panetti dissents lament failures of habeas corpus for the indigent
The Texas Court of Criminal Appeals ruling that made the biggest national headlines this week was their decision to kill mentally ill capital murderer Scott Panetti. Nearly all the attention focused on Judge Tom Price's surprising John Paul Stevens impersonation - an on-the-way-out-the-door declaration that the death penalty should be abolished after personally authorizing hundreds of executions on the court. Talk about living with regrets!
I'll leave the death penalty pro and con debate to others (and would thank commenters to do the same). Instead, the most interesting part of Price's dissent to me was his discussion of innocence cases, DNA exonerations and the lack of funding for attorneys to file habeas corpus writs for indigent defendants. Price wrote:
Maurice Chammah at the newly minted Marshall Project wrote a piece that framed the case in terms of ambiguous standards applied to whether a defendant is incompetent to execute, declaring that "the fact that Panetti is facing a lethal injection despite a 30-year history of documented mental illness demonstrates that the ambiguities of the legal standard of 'competency' ... are far from resolved." His points are well taken, but to me, the theme of the two dissents was more about the failure of the habeas corpus process to provide an adequate remedy for systemic failures and constitutional violations for the indigent. (The majority per curiam opinion was non-substantive.)
Judge Alcala's dissent emphasized the odd position in which Panetti finds himself thanks to the same lack of funding for indigent habeas corpus writs lamented by Judge Price above: "Appellant's motion requested funds so that he could make an initial showing of incompetency as required by Article 46.05. Despite the lack of any statutory provision that would provide funding for the appointment of mental health experts prior to the filing of such a motion, Article 46.06 requires an indigent defendant to make a threshold showing of incompetency." (Citations omitted.) From that description, the issue isn't so much "what is the standard for competency?" but "how can an indigent defendant meet the standard without funds to hire expert witnesses?"
The Court of Criminal Appeals receives thousands of habeas corpus writs each year and I've been told they take up more of the judges' time than direct appeals. Price and Alcala were discussing capital cases, but keep in mind that those are reviewed more stringently on appeal and in the habeas process, by far, than most other murders or other serious, "3g" offenses. Non-lawyer inmates author most non-capital habeas writs without the benefit of investigators, expert witnesses, lab work, or any of the other sorts of things that a competent appellate attorney might do, all of which costs real money. Many inmate writs are hand-written; some are barely literate. Then, because in the era of mass incarceration the volume of habeas writs has skyrocketed, the court installed strict limits on "subsequent writs" after the first one that effectively deny prisoners' ability to revisit even provably valid claims save for a handful of exceptions.
The issues surrounding the lack of indigent counsel in the habeas process isn't limited to capital murder cases, and often I wish society could discuss such topics outside the frame of hot-button culture war issues like the death penalty. These are questions of justice, not partisan tropes. Still, I'm thankful to the judges for highlighting a serious flaw in post-conviction jurisprudence that contributes significantly to the public's lack of confidence in the justice system. Cases like the San Antonio Four, Anthony Graves, Michael Morton, Fran and Dan Keller, and dozens of Texas DNA exonerees have demonstrated that a) flaws exist and b) they can only be rectified through a combination of luck and quality legal counsel advocating for them through the habeas corpus process.
Nobody ever raises this issue in the political arena because it would cost so much to provide counsel for habeas writs, people think a penny pinching Republican-controlled Legislature would never go for it. But as Judge Price said a decade ago, "Even Republicans want there to be fair trials," and perhaps today he might add, a fair appellate review. The fact that it's politically unlikely the Lege will solve a problem doesn't mean it can't or shouldn't be openly discussed, even if in Judge Price's case it's sort of a last hurrah.
I'll leave the death penalty pro and con debate to others (and would thank commenters to do the same). Instead, the most interesting part of Price's dissent to me was his discussion of innocence cases, DNA exonerations and the lack of funding for attorneys to file habeas corpus writs for indigent defendants. Price wrote:
Perhaps more importantly, society is not less convinced of the absolute accuracy of the criminal justice system. A 2012 study by the University of Michigan and Northwestern University law school ranks Texas number three nationally in wrongful convictions over the last twenty years, behind Illinois and New York. ... In my time on this Court, I have voted to grant numerous applications for writs of habeas corpus that resulted in the release of dozens of people who were wrongfully convicted, and I conclude that it is wishful thinking to believe that this State will never execute an innocent person for capital murder. ... There is no rational basis to believe that this same type of human error will not infect capital murder trials. This is true now more than ever in light of procedural rules that have hastened the resolution of applications for writs of habeas corpus and limited subsequent applications for habeas relief. This Court has seen too many initial applications for writs of habeas corpus that were filed by ineffective attorneys, and yet applicants have not been permitted to file subsequent applications to challenge the ineffectiveness of those attorneys. The lack of a guarantee of effective counsel in an initial application for habeas relief, combined with this Court's refusal to consider a subsequent writ that alleges the ineffectiveness of initial counsel, increases the risk that an innocent person may be executed for capital murder based on the procedural default of a possibly meritorious issue. I conclude that the increased danger that a wrongfully convicted person will be executed for capital murder that he did not commit is an irrational risk that should not be tolerated by our criminal justice system. (Citations omitted.)That critique should by no means be limited to capital cases. The same procedural defect prevents lots of legitimate innocence (and other valid) claims. Most habeas corpus writs, particularly non-capital ones, are submitted pro se by inmates without the benefit of counsel. Then later when a lawyer gets involved, there are many claims precluded by failures in the first, pro se writ. Happens all the time.
Maurice Chammah at the newly minted Marshall Project wrote a piece that framed the case in terms of ambiguous standards applied to whether a defendant is incompetent to execute, declaring that "the fact that Panetti is facing a lethal injection despite a 30-year history of documented mental illness demonstrates that the ambiguities of the legal standard of 'competency' ... are far from resolved." His points are well taken, but to me, the theme of the two dissents was more about the failure of the habeas corpus process to provide an adequate remedy for systemic failures and constitutional violations for the indigent. (The majority per curiam opinion was non-substantive.)
Judge Alcala's dissent emphasized the odd position in which Panetti finds himself thanks to the same lack of funding for indigent habeas corpus writs lamented by Judge Price above: "Appellant's motion requested funds so that he could make an initial showing of incompetency as required by Article 46.05. Despite the lack of any statutory provision that would provide funding for the appointment of mental health experts prior to the filing of such a motion, Article 46.06 requires an indigent defendant to make a threshold showing of incompetency." (Citations omitted.) From that description, the issue isn't so much "what is the standard for competency?" but "how can an indigent defendant meet the standard without funds to hire expert witnesses?"
The Court of Criminal Appeals receives thousands of habeas corpus writs each year and I've been told they take up more of the judges' time than direct appeals. Price and Alcala were discussing capital cases, but keep in mind that those are reviewed more stringently on appeal and in the habeas process, by far, than most other murders or other serious, "3g" offenses. Non-lawyer inmates author most non-capital habeas writs without the benefit of investigators, expert witnesses, lab work, or any of the other sorts of things that a competent appellate attorney might do, all of which costs real money. Many inmate writs are hand-written; some are barely literate. Then, because in the era of mass incarceration the volume of habeas writs has skyrocketed, the court installed strict limits on "subsequent writs" after the first one that effectively deny prisoners' ability to revisit even provably valid claims save for a handful of exceptions.
The issues surrounding the lack of indigent counsel in the habeas process isn't limited to capital murder cases, and often I wish society could discuss such topics outside the frame of hot-button culture war issues like the death penalty. These are questions of justice, not partisan tropes. Still, I'm thankful to the judges for highlighting a serious flaw in post-conviction jurisprudence that contributes significantly to the public's lack of confidence in the justice system. Cases like the San Antonio Four, Anthony Graves, Michael Morton, Fran and Dan Keller, and dozens of Texas DNA exonerees have demonstrated that a) flaws exist and b) they can only be rectified through a combination of luck and quality legal counsel advocating for them through the habeas corpus process.
Nobody ever raises this issue in the political arena because it would cost so much to provide counsel for habeas writs, people think a penny pinching Republican-controlled Legislature would never go for it. But as Judge Price said a decade ago, "Even Republicans want there to be fair trials," and perhaps today he might add, a fair appellate review. The fact that it's politically unlikely the Lege will solve a problem doesn't mean it can't or shouldn't be openly discussed, even if in Judge Price's case it's sort of a last hurrah.
Tight CCA decision declares mandatory DWI blood draws unconstitutional
Big week at the Texas Court of Criminal Appeals, which issued several important opinions related to topics covered on Grits. We'll run though them all in due course, but first up: a 5-4 decision in State v. Villareal which declared Texas' mandatory-blood draw statutes in DWI cases unconstitutional, following the US Supreme Court's McNeely decision.
Judge Elsa Alcala wrote the substantial majority opinion disallowing mandatory blood draws while Judges Keller and Meyers authored brief, rather perfunctory dissents holding that Texas' statutory exceptions should be upheld as reasonable under the Fourth Amendment. The overwhelming majority of judges in Texas' intermediate courts had agreed with Alcala's opinion, while more CCA judges adopted a contrarian view than among all the mid-level courts combined.
Villareal will have significant ripple effects, forcing police to get warrants for DWI blood draws in many more circumstances than before. Prosecutors around the state will consider this a big loss, though some remain in denial. OTOH, as Houston criminal defense attorney Grant Scheiner told the Associated Press, "Smart prosecutors and police agencies have been planning for this." Further:
Many counties have implemented short-term "no refusal" periods around holidays or particular weekends where a judge is on call to issue warrants even in routine, first-offense DWI stops. Now, judges must issue warrants in categories of cases that previously did not require one. Will that mean there will be less focus on no-refusal tactics because judges will be spending more time issuing warrants for recidivists, arrests involving accidents, etc.? Or will their workload simply increase? Perhaps DWI blood-draws will decline overall, providing relief to overtaxed crime labs processing the evidence. What are the implications for older convictions based on now-unconstitutional mandatory blood draws? And how will Villareal interact with prior Texas court rulings related to exigent circumstances in blood-draw cases? Who knows?
Much remains uncertain. All we know for sure is police now need a warrant for DWI blood draws in most cases, even if now-mooted statutes say otherwise. Court decisions on exigency, not legislative pronouncements, will henceforth determine when blood can be taken in Texas without judicial approval.
Grits must admit I'm surprised at SCOTUS and the CCA reinvigorating the Fourth Amendment in DWI cases. There will be much weeping and gnashing of teeth over these decisions in the coming weeks and months. And they will probably cause the number of DWI convictions to decline, though I doubt the effect will be as large as the ignominious Driver Responsibility surcharge.
To me, though, McNeely and Villareal speak to the limits of an enforcement-only approach to DWI in a society ostensibly dedicated to protection of personal freedom. Cops, courts, and jails cannot be the only solution to every social problem, particularly drug and alcohol addiction. The question now becomes whether the political process is capable of conceiving and implementing a more holistic approach. My gut says "probably not" in the current political environment, but then a few years ago I wouldn't have predicted McNeely and Villareal could have been possible, either.
Judge Elsa Alcala wrote the substantial majority opinion disallowing mandatory blood draws while Judges Keller and Meyers authored brief, rather perfunctory dissents holding that Texas' statutory exceptions should be upheld as reasonable under the Fourth Amendment. The overwhelming majority of judges in Texas' intermediate courts had agreed with Alcala's opinion, while more CCA judges adopted a contrarian view than among all the mid-level courts combined.
Villareal will have significant ripple effects, forcing police to get warrants for DWI blood draws in many more circumstances than before. Prosecutors around the state will consider this a big loss, though some remain in denial. OTOH, as Houston criminal defense attorney Grant Scheiner told the Associated Press, "Smart prosecutors and police agencies have been planning for this." Further:
Scheiner said it's unlikely the Legislature can modify state law to leave in any exceptions allowing warrantless blood draws.That seems right to this non-attorney, with a couple of caveats: Three of the five judges in the majority will leave the bench in January and be replaced by newbies, two of whom have never before served as judges in any capacity but instead were appellate prosecutors. One supposes it's possible the CCA might accept another case in the future that results in a different outcome, or for that matter a motion for rehearing on this case after the new court is seated - one vote would have flipped the decision. Or, in theory, prosecutors could appeal to the US Supreme Court to overrule the CCA. Barring those outcomes, Villareal ought to settle the matter.
"We can applaud the court of criminal appeals for doing the right thing. But it's not like they had much choice," he said.
Many counties have implemented short-term "no refusal" periods around holidays or particular weekends where a judge is on call to issue warrants even in routine, first-offense DWI stops. Now, judges must issue warrants in categories of cases that previously did not require one. Will that mean there will be less focus on no-refusal tactics because judges will be spending more time issuing warrants for recidivists, arrests involving accidents, etc.? Or will their workload simply increase? Perhaps DWI blood-draws will decline overall, providing relief to overtaxed crime labs processing the evidence. What are the implications for older convictions based on now-unconstitutional mandatory blood draws? And how will Villareal interact with prior Texas court rulings related to exigent circumstances in blood-draw cases? Who knows?
Much remains uncertain. All we know for sure is police now need a warrant for DWI blood draws in most cases, even if now-mooted statutes say otherwise. Court decisions on exigency, not legislative pronouncements, will henceforth determine when blood can be taken in Texas without judicial approval.
Grits must admit I'm surprised at SCOTUS and the CCA reinvigorating the Fourth Amendment in DWI cases. There will be much weeping and gnashing of teeth over these decisions in the coming weeks and months. And they will probably cause the number of DWI convictions to decline, though I doubt the effect will be as large as the ignominious Driver Responsibility surcharge.
To me, though, McNeely and Villareal speak to the limits of an enforcement-only approach to DWI in a society ostensibly dedicated to protection of personal freedom. Cops, courts, and jails cannot be the only solution to every social problem, particularly drug and alcohol addiction. The question now becomes whether the political process is capable of conceiving and implementing a more holistic approach. My gut says "probably not" in the current political environment, but then a few years ago I wouldn't have predicted McNeely and Villareal could have been possible, either.
Wednesday, November 26, 2014
Odds and ends: How best to reduce pot penalties, surging toward inanity, pregnant in jail, and other stories
Here are several items which haven't made it into independent posts this week but merit Grits readers' attention.
Wu: Reduce pot possession <.35 ounces to ticket-only misdemeanor
Houston state Rep. Gene Wu has filed legislation, HB 325, to reduce possession of up to .35 ounces of marijuana to a Class C misdemeanor. While Grits generally supports penalty reduction for pot possession, .35 ounces seems like an odd cutoff point. Presently, possession of up to two ounces is a Class B misdemeanor based on the assumption that such lesser amounts represent personal use levels. I see little reason to treat someone possessing a half ounce for personal use differently than someone possessing a quarter ounce. To my mind, the best solution would be to ratchet down current penalty categories by one level, not to create a new category to carve out small amounts.
That said, I'm incredibly appreciative that Wu's raising the issue at all and would not let the perfect become the enemy of the good by opposing the idea. But recent polling indicates the public would support more aggressive reforms.
Surging toward inanity
Following up on themes from recent Grits posts, check out a pair of recent stories on the politics of Texas' border "surge":
A Starr County sheriff's deputy was arrested smuggling pot through a border checkpoint.
Pregnant in jail
Check out an SA Current story titled "The fight for better care for pregnant women in Texas jails" which informs us that a coalition of groups led by the Texas Jail Project is "calling on the Texas Commission on Jail Standards to implement more robust, detailed policies and procedures to ensure pregnant women get proper obstetric, prenatal and postpartum care while they're incarcerated in Texas county jails. The coalition argues that, with more than 200 county jails statewide, the commission's minimum standards aren't strong enough, nor are county jails held accountable if appropriate care isn't available, creating a dangerous situation for expectant inmates."
Why grand juries don't indict cops
Riffing off the Ferguson kerfuffle, FiveThirtyEight has a column speculating on reasons grand juries almost never indict police officers. Scott Greenfield points out that, in the Ferguson case, the prosecutor did not actually ask the grand jury to indict. Their role was essentially to function as a stage prop in political theater. MORE: From Al Jazeera America, see "Why police are rarely indicted for misconduct" and from The Atlantic, check out a piece from Conor Friedersdorf on why the case more police reform is bigger than Ferguson and the Michael Brown killing.
Explaining the Great American Crime Decline
An article from the new Marshall Project suggests various hypotheses for the jaw-dropping decline in crime witnessed across the country since the early 1990s. The essay that reminded me of Grits own, similar compilation of hypotheses a couple of years ago, though he didn't mention my personal favorite "video game" theory, which holds that young men spending hours playing Grand Theft Auto on an XBox have less time to spend on the streets stealing my car. The National Academy of Sciences recently published an extensive report on this topic. See an overview essay on their findings and find the full report here.
Obama's clemency record sucks
Grits may complain that Texas governors under-use the pardon power, but it bears repeating that President Barack Obama's clemency record sucks harder than any American president in living memory.
Shameless self promotion
Grits was nominated for the American Bar Association's Blawg 100 list of top legal blogs which are chosen by reader votes. Go here to vote for Grits in the criminal justice section and to check out the list of other nominated blogs.
Wu: Reduce pot possession <.35 ounces to ticket-only misdemeanor
Houston state Rep. Gene Wu has filed legislation, HB 325, to reduce possession of up to .35 ounces of marijuana to a Class C misdemeanor. While Grits generally supports penalty reduction for pot possession, .35 ounces seems like an odd cutoff point. Presently, possession of up to two ounces is a Class B misdemeanor based on the assumption that such lesser amounts represent personal use levels. I see little reason to treat someone possessing a half ounce for personal use differently than someone possessing a quarter ounce. To my mind, the best solution would be to ratchet down current penalty categories by one level, not to create a new category to carve out small amounts.
That said, I'm incredibly appreciative that Wu's raising the issue at all and would not let the perfect become the enemy of the good by opposing the idea. But recent polling indicates the public would support more aggressive reforms.
Surging toward inanity
Following up on themes from recent Grits posts, check out a pair of recent stories on the politics of Texas' border "surge":
- Lubbock Avalanche Journal: Rangel: Border security becoming even bigger issue
- El Paso Times (editorial): Texas leaders lack data on 'surge' impact
A Starr County sheriff's deputy was arrested smuggling pot through a border checkpoint.
Pregnant in jail
Check out an SA Current story titled "The fight for better care for pregnant women in Texas jails" which informs us that a coalition of groups led by the Texas Jail Project is "calling on the Texas Commission on Jail Standards to implement more robust, detailed policies and procedures to ensure pregnant women get proper obstetric, prenatal and postpartum care while they're incarcerated in Texas county jails. The coalition argues that, with more than 200 county jails statewide, the commission's minimum standards aren't strong enough, nor are county jails held accountable if appropriate care isn't available, creating a dangerous situation for expectant inmates."
Why grand juries don't indict cops
Riffing off the Ferguson kerfuffle, FiveThirtyEight has a column speculating on reasons grand juries almost never indict police officers. Scott Greenfield points out that, in the Ferguson case, the prosecutor did not actually ask the grand jury to indict. Their role was essentially to function as a stage prop in political theater. MORE: From Al Jazeera America, see "Why police are rarely indicted for misconduct" and from The Atlantic, check out a piece from Conor Friedersdorf on why the case more police reform is bigger than Ferguson and the Michael Brown killing.
Explaining the Great American Crime Decline
An article from the new Marshall Project suggests various hypotheses for the jaw-dropping decline in crime witnessed across the country since the early 1990s. The essay that reminded me of Grits own, similar compilation of hypotheses a couple of years ago, though he didn't mention my personal favorite "video game" theory, which holds that young men spending hours playing Grand Theft Auto on an XBox have less time to spend on the streets stealing my car. The National Academy of Sciences recently published an extensive report on this topic. See an overview essay on their findings and find the full report here.
Obama's clemency record sucks
Grits may complain that Texas governors under-use the pardon power, but it bears repeating that President Barack Obama's clemency record sucks harder than any American president in living memory.
Shameless self promotion
Grits was nominated for the American Bar Association's Blawg 100 list of top legal blogs which are chosen by reader votes. Go here to vote for Grits in the criminal justice section and to check out the list of other nominated blogs.
Sunday, November 23, 2014
Holiday clemency questions at gubernatorial transition
On Friday, Michael Hall at Texas Monthly wondered, "Will Rick Perry grant clemency to Max Soffar?" His post brought to mind two broader, related questions.
First, will Rick Perry issue one more round of Christmas-time pardons, as has become his wont, before departing for the presidential campaign trail? (A corollary question, if yes: Will they include significant pardons, like Soffar's, or only trivial ones like in most prior holiday seasons?) And, second ...
Will Greg Abbott exercise clemency more generously than Perry? Texas' longest serving governor rejected two-thirds of recommendations for clemency sent to him by the Board of Pardons and Paroles, for the most part allowing the constitutional pardon power to atrophy on his watch. He's not the only executive-branch figure to ignore the clemency process: It's something Rick Perry and Barack Obama have in common. Still, to my knowledge, no reporter ever questioned Greg Abbott during the campaign about his stance on executive clemency: Other than his view that governors can issue posthumous pardons, who knows what Abbott thinks about the pardon power?
First, will Rick Perry issue one more round of Christmas-time pardons, as has become his wont, before departing for the presidential campaign trail? (A corollary question, if yes: Will they include significant pardons, like Soffar's, or only trivial ones like in most prior holiday seasons?) And, second ...
Will Greg Abbott exercise clemency more generously than Perry? Texas' longest serving governor rejected two-thirds of recommendations for clemency sent to him by the Board of Pardons and Paroles, for the most part allowing the constitutional pardon power to atrophy on his watch. He's not the only executive-branch figure to ignore the clemency process: It's something Rick Perry and Barack Obama have in common. Still, to my knowledge, no reporter ever questioned Greg Abbott during the campaign about his stance on executive clemency: Other than his view that governors can issue posthumous pardons, who knows what Abbott thinks about the pardon power?
Of budgets and border boondoggles: A reality check
The Austin Statesman has a good article (Nov. 22) on the impact of constant border deployments for game wardens, starting with a 19 percent drop in citations written in other parts of the state, as evidenced in the graphic below.
But even more than the lamentable if predictable impact of diverting focus from game wardens' traditional duties to a politicized snipe hunt, this tidbit stood out at me: "Gov.-elect Gregg Abbott said in February that he wants to nearly double state spending on the border, suggesting a 'continuous surge' with 1,000 new officers on the ground."
Not to beat a dead horse, but how does the state 1) double the billion-dollar border surge, 2) shift highway money from DPS to roads, 3) constitutionally index spending increases to inflation and population growth, and 4) cut taxes? Those can't all happen. Something's got to give.
Math trumps ideology when it comes to appropriations, if not in elections. It's fine for politicians to say such foolishness on the campaign stump but the budget has to balance or they don't get to do it all. Governing involves choices and today's generation of Texas Republicans are no longer back-benchers throwing Molotov cocktails at Bob Bullock and Pete Laney's agenda. They're in charge and governing a state with 25 million people and a balanced budget mandated in the state constitution. Moreover, since 2003 the state has already gone through several sessions involving major budget cuts that more or less stripped state government down to the bone, save for this Big Government border-security misadventure.
Grits has hoped throughout the fall that Texas' leaders would begin to walk back some of these oddly contradictory positions once the campaign season ended, but not so far. Eventually, reality will impose itself in the budgeting process whether or not it's able to penetrate state leaders' political rhetoric. But it'd be better for everyone if that happened before the eleventh hour next May.
But even more than the lamentable if predictable impact of diverting focus from game wardens' traditional duties to a politicized snipe hunt, this tidbit stood out at me: "Gov.-elect Gregg Abbott said in February that he wants to nearly double state spending on the border, suggesting a 'continuous surge' with 1,000 new officers on the ground."
Not to beat a dead horse, but how does the state 1) double the billion-dollar border surge, 2) shift highway money from DPS to roads, 3) constitutionally index spending increases to inflation and population growth, and 4) cut taxes? Those can't all happen. Something's got to give.
Math trumps ideology when it comes to appropriations, if not in elections. It's fine for politicians to say such foolishness on the campaign stump but the budget has to balance or they don't get to do it all. Governing involves choices and today's generation of Texas Republicans are no longer back-benchers throwing Molotov cocktails at Bob Bullock and Pete Laney's agenda. They're in charge and governing a state with 25 million people and a balanced budget mandated in the state constitution. Moreover, since 2003 the state has already gone through several sessions involving major budget cuts that more or less stripped state government down to the bone, save for this Big Government border-security misadventure.
Grits has hoped throughout the fall that Texas' leaders would begin to walk back some of these oddly contradictory positions once the campaign season ended, but not so far. Eventually, reality will impose itself in the budgeting process whether or not it's able to penetrate state leaders' political rhetoric. But it'd be better for everyone if that happened before the eleventh hour next May.
Friday, November 21, 2014
Might Texas revisit needle exchange pilots with Susan Reed gone, disease prevention in the news?
Grits wonders if - owing to recent events surrounding the Ebola scare and the outlandish costs of Hepatitis C treatment under new drug protocols - 2015 might be a year in which the Texas Legislature favorably revisits Rep. Ruth Jones-McLendon's legislation allowing local health authorities to create pilot needle-exchange programs? This session, her bill allowing such pilots in Bexar, Dallas, El Paso, Harris, Nueces, Travis, and Webb counties is HB 65.
Legislation authorizing a pilot needle-exchange program passed once before back in 2007. Rep. McLendon carried the bill in the House and Dr. Bob Deuell (who lost his primary in the spring and will not return next year) championed it in the Senate. The designated pilot location was McLendon's home county in Bexar; Governor Perry approved it and local officials looked forward to implementing it. But Bexar County District Attorney Susan Reed, who herself was ousted earlier this month in the general election, threatened to prosecute volunteers who participated in the pilot, effectively rescinding the Legislature's permission under authority of the executive branch. (See Grits coverage here, here, here, here, here, and here.)
Senator Deuell seemed to lose heart in the fight after 2009, when the bill passed the Senate but died sitting on the House calendar while Democrats chubbed over voter ID. The good doctor threw up his hands on the issue after that - there are plenty of other topics, after all, on which an East Texas Republican can expend his political capital - and the bill hasn't moved much since.
However, the political landscape surrounding the issue arguably has changed since then, for starters thanks to a renewed concern for preventive public-health strategies in light of the Ebola scare. A recent Texas Tribune headline, one of their last in the New York Times before that partnership ends, read, "Ebola scare behind it, Texas is bracing for the next viral crisis."
There are many possible methods of disease transmission and, just in recent decades, IV drug use has been a significant factor in the spread of both HIV and Hepatitis C. As the state considers comprehensive disease-prevention strategies (a Perry-appointed task force will release its Ebola-centered recommendations after the holiday), reviving the idea of pilot needle-exchange programs only makes sense. HIV/AIDS killed many thousands before treatments were found. And Hep C may end up costing the state untold sums thanks to a new drug called "Sovaldi," which cures the disease but costs in the neighborhood of $80,000 per patient. At those rates, it would run around $2 billion (with a "b") to treat every TDCJ prisoner with Hepatitis C if, say, courts ever ruled the state is obligated to provide the treatment as part of its basic standard of care for the disease. (When the state chooses to incarcerate someone, it assumes responsibility for their healthcare, federal courts have consistently found.)
All that to say, increasingly there are pragmatic public health and budgetary reasons, and perhaps even a bit of political momentum thanks to the Ebola scare, for the Lege to take a more expansive view toward the merits of preventive public-health strategies. Susan Reed is gone, or is about to be, and McLendon's permissive, local-control approach would let needle-exchange pilots happen in a way that would insulate legislators from on-the-ground decisions by local officials.
Texas Republicans should support local, pilot needle-exchange programs for the same reason Margaret Thatcher did: The public interest in disease prevention outweighs whatever principled disdain for addicts one might harbor. The election is over. It's time to govern.
Legislation authorizing a pilot needle-exchange program passed once before back in 2007. Rep. McLendon carried the bill in the House and Dr. Bob Deuell (who lost his primary in the spring and will not return next year) championed it in the Senate. The designated pilot location was McLendon's home county in Bexar; Governor Perry approved it and local officials looked forward to implementing it. But Bexar County District Attorney Susan Reed, who herself was ousted earlier this month in the general election, threatened to prosecute volunteers who participated in the pilot, effectively rescinding the Legislature's permission under authority of the executive branch. (See Grits coverage here, here, here, here, here, and here.)
Senator Deuell seemed to lose heart in the fight after 2009, when the bill passed the Senate but died sitting on the House calendar while Democrats chubbed over voter ID. The good doctor threw up his hands on the issue after that - there are plenty of other topics, after all, on which an East Texas Republican can expend his political capital - and the bill hasn't moved much since.
However, the political landscape surrounding the issue arguably has changed since then, for starters thanks to a renewed concern for preventive public-health strategies in light of the Ebola scare. A recent Texas Tribune headline, one of their last in the New York Times before that partnership ends, read, "Ebola scare behind it, Texas is bracing for the next viral crisis."
There are many possible methods of disease transmission and, just in recent decades, IV drug use has been a significant factor in the spread of both HIV and Hepatitis C. As the state considers comprehensive disease-prevention strategies (a Perry-appointed task force will release its Ebola-centered recommendations after the holiday), reviving the idea of pilot needle-exchange programs only makes sense. HIV/AIDS killed many thousands before treatments were found. And Hep C may end up costing the state untold sums thanks to a new drug called "Sovaldi," which cures the disease but costs in the neighborhood of $80,000 per patient. At those rates, it would run around $2 billion (with a "b") to treat every TDCJ prisoner with Hepatitis C if, say, courts ever ruled the state is obligated to provide the treatment as part of its basic standard of care for the disease. (When the state chooses to incarcerate someone, it assumes responsibility for their healthcare, federal courts have consistently found.)
All that to say, increasingly there are pragmatic public health and budgetary reasons, and perhaps even a bit of political momentum thanks to the Ebola scare, for the Lege to take a more expansive view toward the merits of preventive public-health strategies. Susan Reed is gone, or is about to be, and McLendon's permissive, local-control approach would let needle-exchange pilots happen in a way that would insulate legislators from on-the-ground decisions by local officials.
Texas Republicans should support local, pilot needle-exchange programs for the same reason Margaret Thatcher did: The public interest in disease prevention outweighs whatever principled disdain for addicts one might harbor. The election is over. It's time to govern.
Thursday, November 20, 2014
How times have changed: Reed gone in Bexar, McCrum cleared
How quickly circumstances can change. Readers may recall this post from February suggesting that Bexar DA Susan Reed sought contempt charges against attorney Michael McCrum (for allegedly telling a witness to "get lost") in retaliation for court filings in other cases alleging misconduct by Reed and her office, including an alleged (and denied) sexual affair by Reed herself with a defendant in one of his cases.
Since then, somewhat unthinkably, Susan Reed has been voted out of office while McCrum, somewhat less surprisingly, rose to statewide prominence as special prosecutor against Gov. Rick Perry (about which, still). However, it's not for that reason but to update that February post that Grits reports news that, "The special prosecutor in the criminal case against Gov. Rick Perry was cleared Monday in San Antonio of an unrelated contempt of court charge against him," according to the Austin Statesman, referring to the above-mentioned allegations by Reed, now a lame duck, against McCrum.
So that completes the loop on that. With this ruling delivered right after Reed's ouster at the polls, she's no longer in a position to threaten either McCrum nor the apostate judge who failed to follow her dictum. Perhaps her replacement will be no better, but in the small world of Texas criminal justice, her departure remains a seismic shift. And the vicissitudes of Fate continue to mock all who offer certain predictions.
Since then, somewhat unthinkably, Susan Reed has been voted out of office while McCrum, somewhat less surprisingly, rose to statewide prominence as special prosecutor against Gov. Rick Perry (about which, still). However, it's not for that reason but to update that February post that Grits reports news that, "The special prosecutor in the criminal case against Gov. Rick Perry was cleared Monday in San Antonio of an unrelated contempt of court charge against him," according to the Austin Statesman, referring to the above-mentioned allegations by Reed, now a lame duck, against McCrum.
So that completes the loop on that. With this ruling delivered right after Reed's ouster at the polls, she's no longer in a position to threaten either McCrum nor the apostate judge who failed to follow her dictum. Perhaps her replacement will be no better, but in the small world of Texas criminal justice, her departure remains a seismic shift. And the vicissitudes of Fate continue to mock all who offer certain predictions.
Wednesday, November 19, 2014
Pricetag for DPS, Texas National Guard border adventure approaching one billion dollars
So, lame ducks Rick Perry and David Dewhurst plan to commit the state to spending $86 million to continue the much ballyhooed border surge until August. Reported the Texas Tribune, "Gov. Rick Perry announced Tuesday that he, House Speaker Joe Straus and Lt. Gov. David Dewhurst had reached
an agreement that will cost about $86 million. If approved by the
Legislative Budget Board, that spending will not need a green light from
incoming lawmakers, who are set to gavel in in January."
And how to pay for it? "Perry said in the statement that the funding will include $13.7 million from the state’s disaster funds, $47.9 from the Texas Department of Transportation's general revenue bond fund, $7 million from the state's Emerging Technology Fund and $17.5 million from the Texas Public Finance Authority."
This proposed commitment of revenue outside the Appropriations bill by the Legislative Budget Board demonstrates exactly what's wrong with spending so much money on redundant and unnecessary border security measures in the first place: It's cost so much the money must be diverted from other necessary government functions, in this case spending on disaster response, roads, emerging technology, and state-owned facilities.
There's been much talk of a constitutional amendment to limit state spending but little talk of what should be cut. Grits fails to see a single state priority in the budget that's outweighed by the massive, on and off-budget ballooning of frankly frivolous border security spending in recent years. How much are we talking about? Lt. Gov. David Dewhurst told the Tribune that:
In the criminal-justice realm, that's more than enough to have simply eliminated the Driver Responsibility surcharge and funded hospital trauma centers out of the general fund. Or it could have provided more treatment and diversion programming to support local probation departments and helped the state close more prisons. If it'd been spent on some combination of diversion programming and improved guard pay, maybe TDCJ wouldn't face the understaffing crisis that presently besets it.
The border surge was for the most part a policy decision made outside the legislative process by a handful of state officials who are now exiting public service. It was approved after the fact as a fait accompli, though never really interrogated on its own merits as a budget priority before now. Clearly Dewhurst doesn't think there's sufficient support for a two-thirds vote (an assessment which frankly surprises me), so they want to lock in the spending specifically because they don't think it has sufficient political support in the Legislature. Fascinating.
The Austin Statesman added that the agreement between Perry, Straus and Dewhurst was subject to approval at a Legislative Budget Board meeting Dec. 1st, but if past is prologue, that's probably a rubber-stamp formality. It's truly remarkable how much money Texas has spent on this misbegotten border adventure with so vanishingly little to show for it.
UPDATE: The Austin Statesman followed up with a report that the National Guard deployment will only last through the end of March, pointing out that the initial statement on Tuesday "left the impression that the Texas National Guard, deployed by Perry in July, would continue to be an integral part of the enhanced border enforcement effort through the end of the fiscal year" in August. According to the Houston Chronicle, Dewhurst yesterday acknowledged the Guard will "wind down" its presence while the DPS "surge" will continue through August, if the LBB approves the agreement.
So Straus cut a slightly tougher deal with his lame duck counterparts than had been initially reported, though the overall total spent on misguided border security still speaks to off-kilter priorities when one considers the opportunity costs regarding what could have been accomplished with such large amounts of money.
And how to pay for it? "Perry said in the statement that the funding will include $13.7 million from the state’s disaster funds, $47.9 from the Texas Department of Transportation's general revenue bond fund, $7 million from the state's Emerging Technology Fund and $17.5 million from the Texas Public Finance Authority."
This proposed commitment of revenue outside the Appropriations bill by the Legislative Budget Board demonstrates exactly what's wrong with spending so much money on redundant and unnecessary border security measures in the first place: It's cost so much the money must be diverted from other necessary government functions, in this case spending on disaster response, roads, emerging technology, and state-owned facilities.
There's been much talk of a constitutional amendment to limit state spending but little talk of what should be cut. Grits fails to see a single state priority in the budget that's outweighed by the massive, on and off-budget ballooning of frankly frivolous border security spending in recent years. How much are we talking about? Lt. Gov. David Dewhurst told the Tribune that:
“The reason to continue the border surge through the end of the fiscal year, which is Aug. 31, is because some of the newly elected officials may not be focusing on the fact that it's undoubtedly impossible to get a two-thirds vote in both chambers to continue it,” he said. “And once you don't get a two-thirds vote for immediate effect, the surge will stop, we'll have business as usual for the cartels and the $850 to $900 million that we just spent will be all for nothing.”What could have been done with an extra $850 to $900 million over the last few years? If you spent every dime of it on transportation upgrades it wouldn't be enough, but it'd fill a lot of potholes. Ditto on school finance, health care, universities, or a half-dozen other investments one could name.
In the criminal-justice realm, that's more than enough to have simply eliminated the Driver Responsibility surcharge and funded hospital trauma centers out of the general fund. Or it could have provided more treatment and diversion programming to support local probation departments and helped the state close more prisons. If it'd been spent on some combination of diversion programming and improved guard pay, maybe TDCJ wouldn't face the understaffing crisis that presently besets it.
The border surge was for the most part a policy decision made outside the legislative process by a handful of state officials who are now exiting public service. It was approved after the fact as a fait accompli, though never really interrogated on its own merits as a budget priority before now. Clearly Dewhurst doesn't think there's sufficient support for a two-thirds vote (an assessment which frankly surprises me), so they want to lock in the spending specifically because they don't think it has sufficient political support in the Legislature. Fascinating.
The Austin Statesman added that the agreement between Perry, Straus and Dewhurst was subject to approval at a Legislative Budget Board meeting Dec. 1st, but if past is prologue, that's probably a rubber-stamp formality. It's truly remarkable how much money Texas has spent on this misbegotten border adventure with so vanishingly little to show for it.
UPDATE: The Austin Statesman followed up with a report that the National Guard deployment will only last through the end of March, pointing out that the initial statement on Tuesday "left the impression that the Texas National Guard, deployed by Perry in July, would continue to be an integral part of the enhanced border enforcement effort through the end of the fiscal year" in August. According to the Houston Chronicle, Dewhurst yesterday acknowledged the Guard will "wind down" its presence while the DPS "surge" will continue through August, if the LBB approves the agreement.
So Straus cut a slightly tougher deal with his lame duck counterparts than had been initially reported, though the overall total spent on misguided border security still speaks to off-kilter priorities when one considers the opportunity costs regarding what could have been accomplished with such large amounts of money.
Trying, in vain, to care about Rick Perry criminal charges
I've tried to feign interest in Rick Perry's indictment and the news that Judge Bert Richardson for now will allow the case to go forward. Really. Half the Austin press corps seems to be following the involved lawyers around like a gaggle of groupies, so it must be Very Important. It's just that my efforts have been hindered by my not caring so profoundly.
As governor, Rick Perry is on his way out and though Grits wishes him well, I don't particularly anticipate his ascension to the presidency, whether or not the charges stick. (Hell, in a Republican primary, strong-arming a drunken Democrat might boost his street cred!) Meanwhile, his alleged victim, Rosemary Lehmberg, is a lame duck DA and local laughingstock/punchline who will not run again in 2016. (I wouldn't wish what she's gone through on anyone but she brought it on herself.)
It's a circus. It's a spectacle. But it doesn't really matter.
As governor, Rick Perry is on his way out and though Grits wishes him well, I don't particularly anticipate his ascension to the presidency, whether or not the charges stick. (Hell, in a Republican primary, strong-arming a drunken Democrat might boost his street cred!) Meanwhile, his alleged victim, Rosemary Lehmberg, is a lame duck DA and local laughingstock/punchline who will not run again in 2016. (I wouldn't wish what she's gone through on anyone but she brought it on herself.)
It's a circus. It's a spectacle. But it doesn't really matter.
TDCJ plans to let inmate marriages resume
Once new rules are in place, Texas inmates will again be allowed to marry while they're incarcerated, but this time they'll do so in person, not via proxy as in the past. The report from AP (Nov. 18) on the topic began:
Texas plans to allow marriage ceremonies inside prisons between an inmate and an intended spouse who isn't incarcerated, officials disclosed Tuesday.The story included a few details about how the new system would work:
Inmates in Texas historically have been allowed to marry by proxy, meaning someone stood in for the prisoner at a ceremony held somewhere other than the penitentiary. But a state law that took effect a year ago and requires both parties be present for a marriage ceremony has had the unintended consequence of halting proxy marriages in Texas prisons. At the same time, U.S. Supreme Court rulings have upheld prisoners' right to marry.
State prison officials said they're framing the new rules now.
"Given the restrictions and understanding offenders have a legal right to marry, the agency is drafting a policy that allows an inmate to marry a non-incarcerated person within our facilities," agency spokesman Jason Clark said.
According to the plans, the marriages would have to comply with prison visitation rules, be consistent with the prisoner's visitation status and require no special amenities.RELATED: See this interesting, related story from The New Statesman.
For example, a death row inmate is not allowed any outside contact. While the inmate could get married under the new policy, the prisoner still would be separated by glass and be allowed no contact with a spouse.
Rules already on the books don't allow conjugal visits.
The spouse would have to obtain the marriage license, make arrangements for someone to conduct the nuptials and be responsible for any payment to that person. Prison chaplains would not be involved, Clark said. Attendance would be limited to the offender, the spouse and the person conducting the ceremony.
"Some of the other details are still being worked out at this point," he said.
Tuesday, November 18, 2014
More criminal justice bills pre-filed at the Texas Lege
Here are a few more bills (see here, here, here and here for earlier installments) from the first week of pre-filing at the Texas Legislature that may merit Grits readers' attention:
Can prison spending be limited to population/inflation growth rates?
There are a couple of bills out there to restrict state spending to the combined effects of inflation and population growth, like this one, so it's worth mentioning that state prison spending has far surpassed those rates consistently for more than three decades. Also, there's a basic math problem with a constitutional amendment proposed by rookie Sen. Charles Perry limiting budget growth to the sum of inflation and population growth (or personal income growth, whichever is lesser). However, to actually index spending you would multiply those rates, not add them. Over time, his method would systematically under-fund the budget if not corrected. Perhaps if legislators want a smaller budget, they should propose cuts instead of constitutional amendments.
Whither border security funding if highway money spent on highways?
Also on the budget front, SB 139 by rookie Sen. Charles Perry and SB 184 by Sen. Charles Schwertner would cease using money from the state highway fund to finance the Department of Public Safety. The questions then become: Where does DPS funding come from? And, is their border security profile sustainable without tax increases?
How to raise local property taxes everywhere
HB 191 by Rep. Jim Murphy creating mandatory minimums for people convicted of multiple misdemeanors would launch a new 21st century jail building boom in Texas. County commissioners and Sheriffs, if they're wise, will come out of the woodwork to oppose this. In many counties in recent years, rising jail costs have been the primary driver for local property tax increases.
Record custodial interrogations
State Sen. Rodney Ellis has once again filed legislation to require recording interrogations of people suspected of serious, violent offenses. Make me philosopher king and I'd require recording of all custodial interrogations, but this is a good start. Last session state Rep. Terry Canales carried companion legislation in the House and Grits expects him to file the bill again in the 84th session.
Prioritize saving lives over prosecution in overdose cases
Rep. Ryan Guillen put forward a version of a Good Samaritan bill, HB 225, to make it a defense to prosecution on drug charges for people who call 911 when someone they're with overdoses. There have been several versions of this kicking around over the years. Last session a version cleared committee but, like many criminal justice reform bills, never received a vote on the House floor.
Grants, policies for police bodycams
In 2003, state Sen. Royce West carried legislation that created a grant fund for police departments to apply to install dashcams in patrol cars, and most of them did. Now he's filed SB 158 which would authorize the state to issue grants for police body cams and requires those using them to create written policies that govern their use and train on them. The difference between this and the one authorizing dashcams is that in 2003, Sen. West also passed a measure authorizing a statewide bond election for money to pay for them (which voters approved) and requirements for racial profiling reporting that were more stringent if departments didn't have cameras in their cars. This bill presently includes neither as many carrots nor sticks as his earlier legislation. For body cams to be adopted as widely as dashcams, there'd need to be a pot of money to fund these grants and some incentive for departments to use them.
No probation for illegal immigrants?
In SB 174, Sen. Joan Huffman recommends that "illegal aliens" be denied the chance to receive community supervision as a punishment, another potential budget buster for both state prisons and county jails. If this bill doesn't receive a gigantic "fiscal note" it will be proof once and for all that the Legislative Budget Board's mechanism for assessing bills' fiscal cost is utterly and profoundly broken.
Can prison spending be limited to population/inflation growth rates?
There are a couple of bills out there to restrict state spending to the combined effects of inflation and population growth, like this one, so it's worth mentioning that state prison spending has far surpassed those rates consistently for more than three decades. Also, there's a basic math problem with a constitutional amendment proposed by rookie Sen. Charles Perry limiting budget growth to the sum of inflation and population growth (or personal income growth, whichever is lesser). However, to actually index spending you would multiply those rates, not add them. Over time, his method would systematically under-fund the budget if not corrected. Perhaps if legislators want a smaller budget, they should propose cuts instead of constitutional amendments.
Whither border security funding if highway money spent on highways?
Also on the budget front, SB 139 by rookie Sen. Charles Perry and SB 184 by Sen. Charles Schwertner would cease using money from the state highway fund to finance the Department of Public Safety. The questions then become: Where does DPS funding come from? And, is their border security profile sustainable without tax increases?
How to raise local property taxes everywhere
HB 191 by Rep. Jim Murphy creating mandatory minimums for people convicted of multiple misdemeanors would launch a new 21st century jail building boom in Texas. County commissioners and Sheriffs, if they're wise, will come out of the woodwork to oppose this. In many counties in recent years, rising jail costs have been the primary driver for local property tax increases.
Record custodial interrogations
State Sen. Rodney Ellis has once again filed legislation to require recording interrogations of people suspected of serious, violent offenses. Make me philosopher king and I'd require recording of all custodial interrogations, but this is a good start. Last session state Rep. Terry Canales carried companion legislation in the House and Grits expects him to file the bill again in the 84th session.
Prioritize saving lives over prosecution in overdose cases
Rep. Ryan Guillen put forward a version of a Good Samaritan bill, HB 225, to make it a defense to prosecution on drug charges for people who call 911 when someone they're with overdoses. There have been several versions of this kicking around over the years. Last session a version cleared committee but, like many criminal justice reform bills, never received a vote on the House floor.
Grants, policies for police bodycams
In 2003, state Sen. Royce West carried legislation that created a grant fund for police departments to apply to install dashcams in patrol cars, and most of them did. Now he's filed SB 158 which would authorize the state to issue grants for police body cams and requires those using them to create written policies that govern their use and train on them. The difference between this and the one authorizing dashcams is that in 2003, Sen. West also passed a measure authorizing a statewide bond election for money to pay for them (which voters approved) and requirements for racial profiling reporting that were more stringent if departments didn't have cameras in their cars. This bill presently includes neither as many carrots nor sticks as his earlier legislation. For body cams to be adopted as widely as dashcams, there'd need to be a pot of money to fund these grants and some incentive for departments to use them.
No probation for illegal immigrants?
In SB 174, Sen. Joan Huffman recommends that "illegal aliens" be denied the chance to receive community supervision as a punishment, another potential budget buster for both state prisons and county jails. If this bill doesn't receive a gigantic "fiscal note" it will be proof once and for all that the Legislative Budget Board's mechanism for assessing bills' fiscal cost is utterly and profoundly broken.
Harsher punishments for 'official oppression' by police: Would it help?
Grits opposes most penalty enhancement bills and I may end up being against this one after I've given it sufficient thought. However, with police unions poised to go after the Smart on Crime agenda, I'm at least glad to see legislation filed that will keep them occupied some of the time next session playing defense. State Rep Borris Miles filed HB 265 increasing penalties for "official oppression" from a Class A misdemeanor to a third degree felony if the public servant in question was a police officer who "knowingly caused bodily injury to another."
(That oughtta rile the unions up more, even, than Jon Stickland's proposed HB 137 limiting government grants to law enforcement groups that lobby at the Legislature.)
At times, prosecutors have pled serious assault cases against officers down to Class A misdemeanor official oppression as sort of a place-holder to avoid pursuing more serious offenses that would get you or I charged with felony assault or worse. So I certainly understand Miles' frustration. Even so, arguably the public would be at least as well or better protected by altering the civil service code to make it easier for police departments to fire bad cops and empower the Commission on Law Enforcement to keep them from being re-hired elsewhere in Texas if they engaged in serious misconduct.
Prosecutors can always find a lesser charge to plead down a case and will find something else if misdemeanor official oppression is removed from their toolkit (e.g., misdemeanor assault). As much as one might like to, I don't see how it's possible to legislate away the discretion of elected District Attorneys to exercise routine lenience toward criminal defendants employed by police departments. The punitive impulse is not a pragmatic one.
That said, another piece of Miles' legislation, HB 270, would make official oppression complaints subject to the Public Information Act in Dallas and Houston (cities over two million) and require their retention as long as the officer as employed. That's a fine idea that IMO needn't be limited to the state's biggest cities.
(That oughtta rile the unions up more, even, than Jon Stickland's proposed HB 137 limiting government grants to law enforcement groups that lobby at the Legislature.)
At times, prosecutors have pled serious assault cases against officers down to Class A misdemeanor official oppression as sort of a place-holder to avoid pursuing more serious offenses that would get you or I charged with felony assault or worse. So I certainly understand Miles' frustration. Even so, arguably the public would be at least as well or better protected by altering the civil service code to make it easier for police departments to fire bad cops and empower the Commission on Law Enforcement to keep them from being re-hired elsewhere in Texas if they engaged in serious misconduct.
Prosecutors can always find a lesser charge to plead down a case and will find something else if misdemeanor official oppression is removed from their toolkit (e.g., misdemeanor assault). As much as one might like to, I don't see how it's possible to legislate away the discretion of elected District Attorneys to exercise routine lenience toward criminal defendants employed by police departments. The punitive impulse is not a pragmatic one.
That said, another piece of Miles' legislation, HB 270, would make official oppression complaints subject to the Public Information Act in Dallas and Houston (cities over two million) and require their retention as long as the officer as employed. That's a fine idea that IMO needn't be limited to the state's biggest cities.
Monday, November 17, 2014
Whitmire would eliminate 'key man' system for grand juries
State Sen. John Whitmire has filed a bill, SB 135, which would fundamentally alter the grand jury system in Harris and other Texas counties by abolishing the "key man" system and requiring that grand jurors be selected from the regular jury pool.
This would eliminate the perception of insider baseball among the courthouse set when it comes to securing indictments. I'll be interested to hear the arguments that come out against it. The key-man system has been abandoned in most of the country and is at this point an anachronism.
See earlier coverage of the issue from the Texas Tribune, from Texas Monthly, and an excellent series on the topic by Lisa Falkenberg at the Houston Chronicle (behind paywall) from over the summer:
This would eliminate the perception of insider baseball among the courthouse set when it comes to securing indictments. I'll be interested to hear the arguments that come out against it. The key-man system has been abandoned in most of the country and is at this point an anachronism.
See earlier coverage of the issue from the Texas Tribune, from Texas Monthly, and an excellent series on the topic by Lisa Falkenberg at the Houston Chronicle (behind paywall) from over the summer:
Correction: Erroneous post removed
This morning I'd briefly posted an item that utterly misread a piece of legislation filed by state Rep. Jeff Leach, mistaking a reporting requirement on asset forfeiture for a more substantive procedural barrier. Very soon after posting it I realized my error and took it down. For the few who saw it, my apologies. I'll include a more accurate summary in a later roundup of new bills filed but my initial assessment was wrong.
Time for more sensible laws on low-level drug possession
State Rep. Senfronia Thompson has filed a pair of bills recommended by a bipartisan majority of Harris County district judges, led by Judge Michael McSpadden, to reduce the penalty category for low-level drug possession. HB 254 would change the crime of possession of less than a gram of a controlled substance from a state jail felony to a Class A misdemeanor, a switch that would save the state money on incarceration and reduce the burden on felony district courts, which handle a vast number of these relatively petty cases.
Meanwhile, Thompson's HB 253 would make possessing .02 grams or less of a controlled substance not a crime at all. The logic here is that unless there is at least that much available, crime labs use up all the sample during testing and none is left available for potential defense testing, which is a requirement under the U.S. Supreme Court's Confrontation Clause jurisprudence.
HB 253 is basically a Harris County specific bill. We're mostly talking about situations in which officers seize a crack pipe or other paraphernalia and send it to the crime lab to get scrapings to prosecute for drug possession, since possessing the paraphernalia is only a Class C misdemeanor. But the defense bar in Harris County pleads these cases out instead of demanding evidence be independently tested, resulting in thousands of felony convictions over the years for something that elsewhere would warrant a ticket, or nothing. Ending this ridiculous practice would also free up resources at overworked crime labs. Though it shouldn't be necessary, HB 253 is a really good bill.
Meanwhile, Thompson's HB 253 would make possessing .02 grams or less of a controlled substance not a crime at all. The logic here is that unless there is at least that much available, crime labs use up all the sample during testing and none is left available for potential defense testing, which is a requirement under the U.S. Supreme Court's Confrontation Clause jurisprudence.
HB 253 is basically a Harris County specific bill. We're mostly talking about situations in which officers seize a crack pipe or other paraphernalia and send it to the crime lab to get scrapings to prosecute for drug possession, since possessing the paraphernalia is only a Class C misdemeanor. But the defense bar in Harris County pleads these cases out instead of demanding evidence be independently tested, resulting in thousands of felony convictions over the years for something that elsewhere would warrant a ticket, or nothing. Ending this ridiculous practice would also free up resources at overworked crime labs. Though it shouldn't be necessary, HB 253 is a really good bill.
Sunday, November 16, 2014
Dallas considers opening levees to invited graffiti
Dallas has been tepidly experimenting with the idea of "free walls" for graffiti artists (see prior Grits coverage) to divert them from private property, reported the Dallas News (Nov. 15), but the real game changer could come from a different government source. The story concluded:
The Police Department’s experience with graffiti is one that Trinity Watershed Management has been watching closely as it seeks ways to mitigate vandalism on the bridges over the river, said Dhruv Pandya, the watershed’s assistant director.Bingo! Grits has been advocating just such an approach: allowing graff artists to decorate blank portions of the urban landscape, both publicly owned sites like drainage culverts, highway supports, and even the backs of street signs and, where permission can be obtained, on private property in the vein of the Cardiff Empty Walls festival. (I'd also like to see arts re-emphasized in schools, but that's another subject.) By comparison, the cost-benefit analysis underlying an enforcement-only, arrest-and-incarcerate model makes no sense at all. Remove the emotionalism and tribal disdain and there are ways to manage this millennia-old problem that address concerns of property owners, but it won't be resolved by cops, courts or ever-more criminal penalty enhancements that never worked before and won't work now.
Street artists were allowed to paint the underside of the Commerce Street bridge during the city’s last Trinity River Wind Festival. For Pandya, that has meant a slight change in attitude as he looks at ways to allow street painting legally — and to keep it only where it’s allowed.
“We have 30 miles of levees and we have concrete structures,” he said, “and there’s nothing but gray.”
Saturday, November 15, 2014
Roundup: Police misconduct, jails and taxes, and the vicissitudes of 'Right on Crime'
Here are a few items which didn't make it into individual posts this week but merit Grits readers' attention:
TDCJ has confiscated 1,400 weapons in 2014
The Texas Department of Criminal Justice confiscated 1,400 weapons from inmates so far in 2014, reported the Houston Chronicle. In 2013, the total was about 1,700. The problem is exacerbated by understaffing.
County jails and local property taxes
County jails drive county property tax increases and pit Big-Government Conservatives with the small-government variety, which is why the debate over jail expansion in Johnson County has been so divisive.
Ruh Roh
The feds are auditing outgoing Dallas DA Craig Watkins' asset forfeiture funds.
Bicyclist's helmet cam captured deputy's misconduct
Civil litigation in Dallas over a trumped up arrest by DCSO (for which the officer was ultimately suspended for 38 days) was made possible by the bicyclist's helmet cam.
ISD cop asked to smell woman's feet, underwear at traffic stop
Here's one of the creepier examples of police misconduct I've recently run across. What are ISD cops doing making traffic stops, anyway?
Corrupt Hidalgo Sheriff's commander sentenced
Former Deputy Commander Jose Padilla was convicted of taking bribes and allegedly dispatched deputies to scare off rivals of the Gulf Cartel, a role that earned him an eponymous narcocorrido. He was sentenced to 38 months in federal prison.
Stingrays on drones, in your town
Local police departments are using IMSI catchers (fake cell phone towers with the trade name "Stingrays"), and the US Marshals Service has attached a version of an IMSI catcher called a "dirtbox" to drones, gobbling up millions of people's metadata to hunt for fugitives.
Will Illinois go 'Right on Crime'?
The new Republican governor in Illinois thinks their prison system is "broken," holding that the state hasn't “properly staffed and invested in our correction system” and imprisons too many “non-violent offenders” while failing to provide them with “ways to get back into society and become productive citizens.”
Were elections death knell for bipartisanship on criminal justice in D.C.?
Federal sentencing reform may be stalled by the elevation of Chuck Grassley to chair of the Senate Judiciary Committee, Slate reported. A depressing development; maybe the Right on Crime folks can help win him over. I don't care if he votes against it, but the fear is he'll refuse to give the bill a vote.
Progressive policing model
Every city council member in the state should read this article on improvements to policing practices in Milwaukee. I was particularly impressed with the idea of having cops visit folks during the reentry process to offer assistance with housing, employment, etc.. That's truly "smart on crime." We lock a lot of folks up but release a ton of them too. Every year Texas releases almost twice as many prisoners as TDCJ housed en toto when Ann Richards was in office. You can't lock folks up forever and, to solidify crime reductions in the long term, those leaving prison must abstain from new offenses.
TDCJ has confiscated 1,400 weapons in 2014
The Texas Department of Criminal Justice confiscated 1,400 weapons from inmates so far in 2014, reported the Houston Chronicle. In 2013, the total was about 1,700. The problem is exacerbated by understaffing.
County jails and local property taxes
County jails drive county property tax increases and pit Big-Government Conservatives with the small-government variety, which is why the debate over jail expansion in Johnson County has been so divisive.
Ruh Roh
The feds are auditing outgoing Dallas DA Craig Watkins' asset forfeiture funds.
Bicyclist's helmet cam captured deputy's misconduct
Civil litigation in Dallas over a trumped up arrest by DCSO (for which the officer was ultimately suspended for 38 days) was made possible by the bicyclist's helmet cam.
ISD cop asked to smell woman's feet, underwear at traffic stop
Here's one of the creepier examples of police misconduct I've recently run across. What are ISD cops doing making traffic stops, anyway?
Corrupt Hidalgo Sheriff's commander sentenced
Former Deputy Commander Jose Padilla was convicted of taking bribes and allegedly dispatched deputies to scare off rivals of the Gulf Cartel, a role that earned him an eponymous narcocorrido. He was sentenced to 38 months in federal prison.
Stingrays on drones, in your town
Local police departments are using IMSI catchers (fake cell phone towers with the trade name "Stingrays"), and the US Marshals Service has attached a version of an IMSI catcher called a "dirtbox" to drones, gobbling up millions of people's metadata to hunt for fugitives.
Will Illinois go 'Right on Crime'?
The new Republican governor in Illinois thinks their prison system is "broken," holding that the state hasn't “properly staffed and invested in our correction system” and imprisons too many “non-violent offenders” while failing to provide them with “ways to get back into society and become productive citizens.”
Were elections death knell for bipartisanship on criminal justice in D.C.?
Federal sentencing reform may be stalled by the elevation of Chuck Grassley to chair of the Senate Judiciary Committee, Slate reported. A depressing development; maybe the Right on Crime folks can help win him over. I don't care if he votes against it, but the fear is he'll refuse to give the bill a vote.
Progressive policing model
Every city council member in the state should read this article on improvements to policing practices in Milwaukee. I was particularly impressed with the idea of having cops visit folks during the reentry process to offer assistance with housing, employment, etc.. That's truly "smart on crime." We lock a lot of folks up but release a ton of them too. Every year Texas releases almost twice as many prisoners as TDCJ housed en toto when Ann Richards was in office. You can't lock folks up forever and, to solidify crime reductions in the long term, those leaving prison must abstain from new offenses.
Understaffing at Texas prison units reaching crisis levels
Regular Grits readers won't be too surprised by the news, but the Texas Tribune published a story this week on the growing under-staffing crisis at rural Texas prisons, with Brandi Grissom making a cameo appearance on her old employer's site. The gist:
Turnover among corrections officers has been on the rise statewide since 2006, according to department data. And in South Texas and other oil-rich regions in the state, where the energy boom has sparked an explosion of high-wage job growth, finding and keeping prison employees has become difficult.
The desperation to retain employees has prompted an unusual approach at one South Texas prison unit, which is offering dirt-cheap on-campus housing — as low as $25 a month — to make the cost of living in such nouveau riche communities manageable for its employees. And Department of Criminal Justice officials plan to offer similar options at prison units across the state in oil-rich regions.
Such recruiting tools are fast becoming a necessity. At the William G. McConnell Unit in Beeville, the turnover rate skyrocketed from 28 percent in 2006 to 62 percent in 2012, according to Department of Criminal Justice data. As turnover spiked, so did the rate of violent incidents in the prison, growing from about 12 incidents per 100 inmates in 2006 to more than 30 incidents per 100 inmates five years later. It’s a trend mirrored at other prison units across the state that are near shale deposits and the refineries that process the oil harvested from them. ...
It’s not only about the money; officers and prison condition experts say that the difficult working environment guards face contributes to their high turnover rate. That high turnover rate creates a domino effect that makes it even more difficult to retain prison staff: The remaining officers must put in longer hours, and the lower guard-to-inmate ratio means violence among offenders grows. ...
The Department of Criminal Justice currently has 3,304 corrections officer vacancies throughout its 109 prison units, even after the closure in 2013 of two privately run facilities. Statewide, the agency has left roughly 1,400 prison beds empty since 2012 because of staff shortages.State Sen. John Whitmire articulated what to me is the obvious conclusion, one endorsed by the prison guards' union: That Texas operates too many prisoners incarcerating too many people who don't need to be there.
While increased pay would help to retain some prison staff, Whitmire said, the long-term solution is one Texas is already working toward: significantly reducing the prison population, which currently stands at about 150,400.That's exactly correct. Grits strongly supports improving CO pay, but the hard reality is that the Republican-controlled Legislature will be looking to cut the budget, not increase pay for the state's largest single category of employees. In that light, the best way to boost guard compensation is to pay for it with savings from reduced incarceration, closing more prisons, perhaps eliminating more private prison contracts, and targeting units for closure where the staffing crisis is most severe. To get there will require sentencing reform.
Ensuring that prostitutes, the mentally ill, drug addicts and alcoholics find their way to community-based treatment programs instead of prisons, Whitmire said, would save taxpayer dollars and reduce the need for corrections officers.
“Compensation would help, but it’s a bigger picture than that,” he said.
Friday, November 14, 2014
Contractors press behind the scenes to preserve profitable contracts with Dallas justice system
A coupla stories about vendor contracts in Dallas caught my eye. At the county level, Texas Lawyer reported (Nov. 10) on Dallas County Judge Clay Jenkins' failed attempt to halt a "high profit" jail contract with Securus for provision of phone service, though he did succeed in preserving in-person visitation at the jail, at least for now. The article closed with news that the FCC may soon end profiteering off jail phone calls:
The outcome "illustrates the incredible power" that companies like Securus have over public officials nationwide, when they offer potential revenues for local governments from jail calls, Jenkins said.
Richard A. "Rick" Smith, CEO of Securus, did not return a call for this story by press time. A press release posted Oct. 31 on the company's website states that in the past 10 years Securus "has collected and remitted to jails, prisons and state, county and local governments over $1.3 billion in the form of commissions. Commissions are collected from inmates and their family and friends on outbound telephone calls that Securus completes over its proprietary inmate calling platform. The Federal Communications Commission (FCC) eliminated commission payouts on interstate long distance calls effective Feb. 11, 2014, and will likely eliminate or significantly reduce intrastate commissions early in 2015 in an effort to reduce calling rates, provide more affordable calling and reduce recidivism."
The release quotes Smith, who states: "Clearly these commission payments that have been used to fund critical inmate welfare programs and support facility operations and infrastructure have improved the lives of inmates, victims, witnesses and individuals working in the correctional environment, and helped to fund government operations. And it appears, sadly, that regime may come to an end in the not too distant future. …We have been a vocal advocate of maintaining commissions and have spent approximately $5 million in legal fees and other costs on behalf of our facility customers over the last decade to maintain commissions, but the FCC maintains that it is not good public policy to have the poorest in society help to fund government operations, even though the programs funded are worthwhile. … If commission payments are eliminated or reduced—we are advocating a transition period that will allow our facility customers to secure funding from other sources or some type of phase-in of the new rules so as not to impact our facility customers—that phase-in is important and we have discussed that with the FCC on numerous occasions."
One notices MSB doesn't guarantee collections for the Driver Responsibility surcharge, where around 60 percent of assessed charges go uncollected.
Thursday, November 13, 2014
Public cares more about shot dogs than people, says Austin police monitor, and other stories
Just to clear my browser tabs, here are a few odds and ends that deserve readers' attention while I'm focused on work projects:
Austin police monitor: Public angered more by cops shooting dogs than people
Grits didn't see it when it aired but couldn't help but laugh at this clip from Jordan Klepper at the Daily Show about Austin PD training officers to avoid shooting dogs, with the Police Monitor declaring the public appears to care far more when a dog is shot than a person. That sounds about right.
CURE chair profiled
The Texas Observer has a profile of Josh Gravens, the young new chair of a venerable prisoners' advocacy group - the Texas Citizens United for the Rehabilitation of Errants (CURE). I had a previously scheduled conflict and couldn't attend their recent rally, held along with TIFA and Texas Voices, but I'm glad to see CURE active and infused with some new blood.
'How churches can attack the prison pipeline'
See Dallas News coverage of the "National Prison Summit on Incarceration, a multidenominational church-sponsored gathering."
Video visitation at Dallas jail won't stop face to face visits
Dallas County will begin video visitation at the jail, but the commissioners court wisely insisted that face to face visits must continue. Pretty expensive: $10 for 20 minutes.
Solitary confinement meets public schools
Ever heard of schools using "seclusion rooms" for misbehaving students? New to me. See here and here.
A conservative case for reining in prosecutor misconduct
A blogger out of Tyler identifying himself as part of the "conservative resistance" riffed off of a recent Grits post to make the argument for more harshly punishing prosecutor misconduct, overviewing some of Smith County's most infamous scandals and the habitual, circle-the-wagons response by local officials.
Austin police monitor: Public angered more by cops shooting dogs than people
Grits didn't see it when it aired but couldn't help but laugh at this clip from Jordan Klepper at the Daily Show about Austin PD training officers to avoid shooting dogs, with the Police Monitor declaring the public appears to care far more when a dog is shot than a person. That sounds about right.
CURE chair profiled
The Texas Observer has a profile of Josh Gravens, the young new chair of a venerable prisoners' advocacy group - the Texas Citizens United for the Rehabilitation of Errants (CURE). I had a previously scheduled conflict and couldn't attend their recent rally, held along with TIFA and Texas Voices, but I'm glad to see CURE active and infused with some new blood.
'How churches can attack the prison pipeline'
See Dallas News coverage of the "National Prison Summit on Incarceration, a multidenominational church-sponsored gathering."
Video visitation at Dallas jail won't stop face to face visits
Dallas County will begin video visitation at the jail, but the commissioners court wisely insisted that face to face visits must continue. Pretty expensive: $10 for 20 minutes.
Solitary confinement meets public schools
Ever heard of schools using "seclusion rooms" for misbehaving students? New to me. See here and here.
A conservative case for reining in prosecutor misconduct
A blogger out of Tyler identifying himself as part of the "conservative resistance" riffed off of a recent Grits post to make the argument for more harshly punishing prosecutor misconduct, overviewing some of Smith County's most infamous scandals and the habitual, circle-the-wagons response by local officials.
Tuesday, November 11, 2014
Notable TX criminal justice legislation from the first day of bill filing
Yesterday was the first day of bill filing for the 84th Texas Legislature which convenes in January. It should be said; filing early offers no inherent benefits except, perhaps from publicity and giving advocates more time to work the bills. But the bill filing deadline isn't until March 13 and most bills will be filed closer to that deadline, especially with as many rookie legislators as we'll have this go-round. Anyway, here are a few interesting looking criminal justice bills that jumped out at me from yesterday (see the full list of bills filed Monday).
Abolish the Driver Responsibility surcharge
State Sen. Rodney Ellis filed legislation, SB 93, to repeal the driver responsibility program, expanding requirements for driver education coursed for folks with multiple violations in its stead. I expect similar House legislation to be filed, probably by Larry Gonzales (R-Round Rock), who filed it last session. But they're really not going to solve this problem without identifying an alternative revenue stream for trauma hospitals.
Cops as bill collectors?
State Rep. Allen Fletcher wants cops to carry credit card swipers with them at traffic stops so they can accept payment for a ticket there on the spot instead of having the courts assess and accept Class C misdemeanor fines (HB 121). Certainly that would remove any pretense that traffic enforcement is about public safety as opposed to mulcting drivers in the name of revenue generation. Due process is still a guaranteed, constitutional right, though, even if as a practical matter it's become a pretense in most of the millions of Class C traffic cases every year. This idea seems like it's taking several long strides down a slippery slope.
Tent jails redux
HB 161 by Rep. Lyle Larson would allow counties to house prisoners in tents a la Joe Arpaio in Arizona. Sombody files this every year, but it's hard to see it going anywhere while the litigation at TDCJ over excessive heat is still pending - if those court rulings go against the state they'd just be doubling down on their troubles by passing this.
Don't remove statute of limitations in non-DNA rape cases
Several bills filed, all by Democrats, would remove the statute of limitations for rape in non-DNA cases, a terrible idea that will result in more false convictions. These bills are providing backup to some ill-considered Wendy Davis demagoguery from the campaign that should be swept aside as decisively as her political ambitions. This is bad public policy: Statute of limitations exist for a reason and a fair trial can't be had decades after the fact without forensic proof.
Sex pics criminalized if shared with others
State Rep. Ryan Guillen filed a bill making disclosure of photos depicting sexual conduct a state jail felony if the subject of the photo has not consented (think so-called "revenge porn"). I'll be interested to hear what First Amendment experts like Mark Bennett think about the idea. The Lege has lately seen a couple of other, related statutes struck down in the courts because they painted with too broad a brush and HB 101 seems cut from the same cloth.
Improper Photography 2.0
Rep. Jose Menendez filed a much narrower version of Texas' improper photography law (HB 147), which was recently, unanimously overturned by the Texas Court of Criminal Appeals. I'd have to compare it more closely to the court decision, but he appears to be trying to limit the bill to its confies. (Note to Mark Bennett: Whaddya think?)
Back again on texting while driving
Several members, led by former Speaker Tom Craddick (HB 80), want to ban texting despite the fact that states which enacted such bans saw distracted driving crashes increase (people still use their phones, they just hold them in their laps making the process less safe). This has a shot because, though Perry vetoed it before, we now have a new governor.
Increase burden of proof on asset forfeiture
Sen. Chuy Hinojosa filed a good, incremental bill increasing the burden of proof in asset forfeiture cases from "preponderance of the evidence" to "clear and convincing" (SB 95)
'Raise the Age'
Rep. Ruth McLendon Jones and Sen. Hinojosa both filed legislation (HB and SB, respectively) to raise the age of adult criminal liability from 17 to 18 years old. Part of me wished for Republican sponsors on this - maybe they can bolster support by garnering R joint and co-authors - but for a variety of reasons the issue may have legs this session no matter who is carrying it.
Drug diversion
On the de-incarceration front, state Sen. Rodney Ellis filed SB 82 to expand use of community supervision for possession-level felony drug crimes. And Hinojosa has one to mandate that people convicted of serious felonies are released to supervision instead of being released directly from prison unsupervised (SB 99). Lots of Republicans were talking along the same lines during the interim; we'll see if anything comes of it.
Truancy reform
John Whitmire has a bill (SB 106) to reduce the burden of truancy violations but which falls short of decriminalizing truancy as experts and advocates have proposed. In the House, though, Rep. James White filed a bill to eliminate the offense from the books altogether (HB 93). If that doesn't fly, White has another bill (HB 107) that would make the max penalty for truancy $20, far below Whitmire's thresholds and perhaps so low it's not worth the courts' time to process. And he filed HB 110 which would eliminate judges' ability to jail defendants found in contempt for failure to comply with ordes to attend school. So there's no clear consensus yet on how they'll do it, but folks are clearly hoping to address the truancy issue this session.
Limit grants to 'peace officer organization' engaged in politics
Jonathon Stickland filed a bill (HB 137) to ban state grants to "peace officer organizations" if they lobby or operate a PAC. I don't know what grants they get, but that oughtta get CLEAT and TMPA hot under the collar.
Ban red-light cameras
Stickland also filed HB 142 which would ban red-light camera enforcement systems as well as speed cameras. He's not the first to try, but I hope he succeeds.
Legalize the Bowie knife
That's the effect of Rep. James' White's HB 92. One would still be forbidden from owning a "dagger," "dirk," stiletto," and "poniard." I must say, if we're going to let folks carry guns virtually everywhere (and despite naysayers' criticisms, murder rates have fallen as that trend has grown), I fail to understand such sweeping restrictions on knives or why Second Amendment crowd hasn't insisted that the right to bear arms applies equally to daggers, poniards and Bowie knives as assault rifles and handguns. Maybe that's beginning: Last session the Lege legalized switchblades. A related bill by Jon Stickland (HB 172) would prevent municipalities from regulating knives, stunguns, and personal defense sprays.
'Nuther try for an innocence commission
Rep. McLendon and Sen. Rodney Ellis filed bills to create a special commission to study the causes of wrongful convictions and recommend reforms (HB 48 and SB 81). Last session a similar bill passed the House but failed to make it through the senate. Said McLendon in a press release, "This is not an issue of party politics; it is an issue of ethics. At every stage of the criminal justice process, we have a moral and legal responsibility to assure that no innocent person is convicted while a truly guilty one goes free." According to the release, "primary tasks of the commission would be considering solutions and methods designed to correct errors and defects in the system by changing state rules, regulations, procedures and legislation."
This isn't a comprehensive list but just the stuff that immediately jumped out at me. See the full list from yesterday, and more bills will be filed today.
Abolish the Driver Responsibility surcharge
State Sen. Rodney Ellis filed legislation, SB 93, to repeal the driver responsibility program, expanding requirements for driver education coursed for folks with multiple violations in its stead. I expect similar House legislation to be filed, probably by Larry Gonzales (R-Round Rock), who filed it last session. But they're really not going to solve this problem without identifying an alternative revenue stream for trauma hospitals.
Cops as bill collectors?
State Rep. Allen Fletcher wants cops to carry credit card swipers with them at traffic stops so they can accept payment for a ticket there on the spot instead of having the courts assess and accept Class C misdemeanor fines (HB 121). Certainly that would remove any pretense that traffic enforcement is about public safety as opposed to mulcting drivers in the name of revenue generation. Due process is still a guaranteed, constitutional right, though, even if as a practical matter it's become a pretense in most of the millions of Class C traffic cases every year. This idea seems like it's taking several long strides down a slippery slope.
Tent jails redux
HB 161 by Rep. Lyle Larson would allow counties to house prisoners in tents a la Joe Arpaio in Arizona. Sombody files this every year, but it's hard to see it going anywhere while the litigation at TDCJ over excessive heat is still pending - if those court rulings go against the state they'd just be doubling down on their troubles by passing this.
Don't remove statute of limitations in non-DNA rape cases
Several bills filed, all by Democrats, would remove the statute of limitations for rape in non-DNA cases, a terrible idea that will result in more false convictions. These bills are providing backup to some ill-considered Wendy Davis demagoguery from the campaign that should be swept aside as decisively as her political ambitions. This is bad public policy: Statute of limitations exist for a reason and a fair trial can't be had decades after the fact without forensic proof.
Sex pics criminalized if shared with others
State Rep. Ryan Guillen filed a bill making disclosure of photos depicting sexual conduct a state jail felony if the subject of the photo has not consented (think so-called "revenge porn"). I'll be interested to hear what First Amendment experts like Mark Bennett think about the idea. The Lege has lately seen a couple of other, related statutes struck down in the courts because they painted with too broad a brush and HB 101 seems cut from the same cloth.
Improper Photography 2.0
Rep. Jose Menendez filed a much narrower version of Texas' improper photography law (HB 147), which was recently, unanimously overturned by the Texas Court of Criminal Appeals. I'd have to compare it more closely to the court decision, but he appears to be trying to limit the bill to its confies. (Note to Mark Bennett: Whaddya think?)
Back again on texting while driving
Several members, led by former Speaker Tom Craddick (HB 80), want to ban texting despite the fact that states which enacted such bans saw distracted driving crashes increase (people still use their phones, they just hold them in their laps making the process less safe). This has a shot because, though Perry vetoed it before, we now have a new governor.
Increase burden of proof on asset forfeiture
Sen. Chuy Hinojosa filed a good, incremental bill increasing the burden of proof in asset forfeiture cases from "preponderance of the evidence" to "clear and convincing" (SB 95)
'Raise the Age'
Rep. Ruth McLendon Jones and Sen. Hinojosa both filed legislation (HB and SB, respectively) to raise the age of adult criminal liability from 17 to 18 years old. Part of me wished for Republican sponsors on this - maybe they can bolster support by garnering R joint and co-authors - but for a variety of reasons the issue may have legs this session no matter who is carrying it.
Drug diversion
On the de-incarceration front, state Sen. Rodney Ellis filed SB 82 to expand use of community supervision for possession-level felony drug crimes. And Hinojosa has one to mandate that people convicted of serious felonies are released to supervision instead of being released directly from prison unsupervised (SB 99). Lots of Republicans were talking along the same lines during the interim; we'll see if anything comes of it.
Truancy reform
John Whitmire has a bill (SB 106) to reduce the burden of truancy violations but which falls short of decriminalizing truancy as experts and advocates have proposed. In the House, though, Rep. James White filed a bill to eliminate the offense from the books altogether (HB 93). If that doesn't fly, White has another bill (HB 107) that would make the max penalty for truancy $20, far below Whitmire's thresholds and perhaps so low it's not worth the courts' time to process. And he filed HB 110 which would eliminate judges' ability to jail defendants found in contempt for failure to comply with ordes to attend school. So there's no clear consensus yet on how they'll do it, but folks are clearly hoping to address the truancy issue this session.
Limit grants to 'peace officer organization' engaged in politics
Jonathon Stickland filed a bill (HB 137) to ban state grants to "peace officer organizations" if they lobby or operate a PAC. I don't know what grants they get, but that oughtta get CLEAT and TMPA hot under the collar.
Ban red-light cameras
Stickland also filed HB 142 which would ban red-light camera enforcement systems as well as speed cameras. He's not the first to try, but I hope he succeeds.
Legalize the Bowie knife
That's the effect of Rep. James' White's HB 92. One would still be forbidden from owning a "dagger," "dirk," stiletto," and "poniard." I must say, if we're going to let folks carry guns virtually everywhere (and despite naysayers' criticisms, murder rates have fallen as that trend has grown), I fail to understand such sweeping restrictions on knives or why Second Amendment crowd hasn't insisted that the right to bear arms applies equally to daggers, poniards and Bowie knives as assault rifles and handguns. Maybe that's beginning: Last session the Lege legalized switchblades. A related bill by Jon Stickland (HB 172) would prevent municipalities from regulating knives, stunguns, and personal defense sprays.
'Nuther try for an innocence commission
Rep. McLendon and Sen. Rodney Ellis filed bills to create a special commission to study the causes of wrongful convictions and recommend reforms (HB 48 and SB 81). Last session a similar bill passed the House but failed to make it through the senate. Said McLendon in a press release, "This is not an issue of party politics; it is an issue of ethics. At every stage of the criminal justice process, we have a moral and legal responsibility to assure that no innocent person is convicted while a truly guilty one goes free." According to the release, "primary tasks of the commission would be considering solutions and methods designed to correct errors and defects in the system by changing state rules, regulations, procedures and legislation."
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This isn't a comprehensive list but just the stuff that immediately jumped out at me. See the full list from yesterday, and more bills will be filed today.