James White on 'small tyrannies' and Texas' 'criminal-justice dividend'

In the latest "Reasonably Suspicious" podcast from Just Liberty, we broadcast a brief excerpt from a conversation between me and Texas House Corrections Committee Chairman James White. Here's our full conversation, for anyone interested:

Find a transcript below the jump:

Transcript: Interview of Texas House Corrections Committee Chairman James White by Scott Henson, 7-18-17

Scott Henson: All right Chairman White. I wanted to ask you about criminal justice politics in America and the Republican Party today in particular. We're at this strange moment where every issue, it seems like, is splintered across a vast array of axes, whether it's criminal justice or really any other topic you can think of. It's not just a partisan issue, one party versus the other. Within each party there are enormous differences. And on criminal justice, we're in this moment where we have the president talking about “American Carnage” and the attorney general ramping the drug war back up, and here in Texas we have conservative Republicans taking the opportunity of extremely low crime rates to close prisons.

This seems like a disconnect viewed the outside, so how should people think about this? How do we make sense of these splits and these different messages coming out on these criminal justice topics?

James White: Well, thank you Scott for that question and thank you for this opportunity to be on the podcast. I'll go ahead and full disclosure, I probably wake up in the morning about two, 3:30 in the morning, and get a cup of coffee, and peek at Grits for Breakfast, and listen to some of the podcast. But look, you know when you look at our general political scenario it is very fractured. You have deep divisions within parties on a whole host of issues, obviously a lot of divisions on partisan ideology lines.

On this issue of criminal justice I just think it's just the basic politics. At the end of the day politics is local, right? In Texas, because of some things that we've done in the past, we can kind of enjoy this, I guess you can call it a CJ, a criminal justice dividend by investing on the front end, but let's also think about this. Often I tell folks back home in the district the state budget is probably about three things mostly, education, medication, and incarceration. That is public safety, so if you're not doing very well on the education and medication, that's the Medicaid, that's the Health and Human Services, you're going to probably end up with a lot of situations in public safety, and in a broader sense, incarceration.

I'm saying all that, is that I think we can take advantage of this criminal justice dividend in the state of Texas because we've had an economy that has grown faster than other parts of the state, creating jobs faster than other parts of the state, at least this is what the data tells us, and then-

Scott Henson: Or the country [crosstalk 00:03:02].

James White: In the country. Yes. Other parts of the country. Let me say that. We've had this going on, okay, and so people can transition into jobs. I think there is some correlation with economic opportunity and poor public safety outcomes. I think we've had those kind of perfect storms here in the state of Texas, so I would say in Texas politics is local and so we can just do some things. In some other parts of the country, may it be Chicago, Memphis, where you've had just skyrocketing crime rates, maybe they just need to look at some other strategies.

Scott Henson: In Texas we've closed for four additional prisons this session. That was on top of four that we had closed previously and I think that now constitutes a trend. We're now doing this and this is something the legislature's done several times-

James White: In one, the first session ... The first time Texas ever closed a prison, my first session. Right.

Scott Henson: Now that we're doing this and sort of on this trend, people are comfortable doing it. They know they can go home and no one's going to come at them in the primary and call them soft on crime. Do you see this continuing? Do you see next session an appetite for more prison closures? Because, we are spending an immense amount of money. This session I know TCJ's budget didn't increase in the same way, but last session it was a $458 million increase over the biennium so this has been a big cost driver. Is this going to be continue to be an area where we're -

James White: Well, let me address that $458 million because I think a good portion of that, I can't remember how much ratio of that, was actually increasing our correctional officer pay. State Representative White obviously has three prisons in his district and that means he's got a lot of corrections officers in the district, and the idea is, is that I think they are part of the recipe in rehabilitation.

It was okay, I think, for them to probably benefit somewhat from this criminal justice dividend on their compensation side, but to your broader question, and I like the question because as a Republican, and I consider myself a conservative Republican, usually when you're in the same room with a Democrat, and I've had this happen to me, that obviously my Democratic counterpart would get up and say, "Well, we're spending more money on prisons than schools. We're building more prisons cells than classrooms." all of which is not true, and then I like to have the idea that I can for a fact say, "This is absolutely false because under this Republican leadership, this Republican majority in the Texas legislature, we probably closed a lot of prisons in that respect."

Can this continue? You know, I was talking with a reporter from, I think the Dallas Morning News, I think it was Ms. Grissom about this, and I'd say yes. I think we can start this trend if we can continue to do a few things. If we can continue growing our economy in Texas in a smart way where we are creating jobs, where people transition out of school or transition from a job to another job, they'll have economic opportunity. If we can continue or start improving our school finance system to make sure that every child is getting an equal and adequate education to prepare for this economic opportunity, whatever that will be, and three, making these targeted expenditures in Health and Human Services, mental illness, behavioral health, child mental health. If we can continue that along with us some of the programs we've been doing in criminal justice on the front end and getting good returns, absolutely we can continue this trend, but we have to do all of it.

That's why I often tell a lot of my friends as Chairman of Corrections, as a member of the Corrections Committee since I've been in the legislature in 2011, we are interested. I am interested and I think all the individuals all my committee, if you look at the legislation they focus on, we're interested in a vibrant economy. We're interested in public education. We're interested in higher education. We're interested in our healthcare delivery system, okay. You have to be interested in all of that if you are interested in public safety because what we're finding out, and what I've found out, you know looking at the information, and I would put this footnote, one neat thing about criminal justice policy, for good or bad reasons Scott, you have real large data sets to work from.

Scott Henson: Right. That's right.

James White: Okay, either for good or bad reasons. Contrary to other policy areas, sometimes it's ideology and it's a roll of the dice, but generally we can get good smart people around the table. We can get the statistical programs out and we can move the data around, and we can come out with stuff. These are the advantages we have, so quick answer, yes. I think we can continue this if we do all the other stuff, education, economy, growing prosperity, targeted expenditures in the right places on juvenile health care, juvenile mental illness, and even adult mental illness. If we continue doing those, I think we can continue our success on the criminal justice end.

Scott Henson: But do you really think that we can do it solely based on investments in those other areas or are we going to have to restructure some sentencing the way we did on, say, the property theft threshold, on the probation and parole, revocations? Are we going to have to change some more policy issues there?

James White: I think we can and we should. Scott, there's nothing in government that doesn't deserve a review, okay? I haven't seen anything that is just so, other than the Constitution, and even we take that through a review a lot, right? Let's look at some of the small, so-called small nonviolent drug offenses. I often remind myself of my time in the military. I was an officer charged with enforcing or meting out Uniform Code of Military Justice, okay? I got to thinking about how we treated marijuana offenses and I would say it was probably not as harsh as we treat them in the civilian world.

Think about that, military versus civilian, not as harsh, but this is what I think why we were so successful, and if you think of any institution in our country that has been very successful in abating drug abuse, the military. Now, obviously we have some advantages by being pretty much top-down, dictatorial, that sort of thing, but I think one reason we are successful in the military is because the punishment is swift. It's done at the lowest level possible and that company commander has the opportunity to mold that punishment to that soldier.

Bringing that over into the civilian world, let's take the class B marijuana offense. You go. You get arraigned. You get charged and you come back in a few weeks or months for the rest of it, right? Well, that takes a while. Well, what do you think that guy or gal was doing while they're waiting to come back to court? They're probably smoking it up, okay? They're probably firing it up, right? If your goal is to, I don't want peoples doing this, is something more swift, maybe involving some community service. I'm going to tell you, as a kid growing up in Texas, driving on family trips and looking at these guys on the side of the road in prison uniforms in the hot sun, that was very impactful on my thinking that I don't want to do anything bad.

Maybe having these folks out doing criminal, I mean community service, and kids looking at that and asking mom or dad, "Why are these people in black and white uniforms or orange uniforms out there doing this?" Well, because they were caught with an illegal substance and they're out there in the hot sun having to do community service, and if you don't want to be doing that, you don't need to be doing ... That's impactful for me, as a young kid okay, and it would be impactful for others. It's swift. People get it and I think that would do more as far as rehabilitation than this long drawn out process that's costing our county governments and local governments money as well.

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Scott Henson: Let's talk for a moment about your legislation to create a capital public defender for Texas. I know everyone generally thinks of the death penalty as one of the most incredibly hot button culture war issues that there is, but on this legislation you really found an angle that seemed to garner bipartisan support. I didn't really understand why it didn't make it to the floor after it got such good support in committee.

James White: Stand in line. Yeah, get in line on a whole lot of other legislation from other people.

Scott Henson: Well, that's certainly right, but this, you really found an angle that everybody seemed to be able to come to agreement on even on this hot button question, so describe for us your capital defender idea and tell us why this is important for Texas.

James White: Very, very interesting, very, very important, and I will begin by saying I believe that local jurisdictions, district attorneys along with their juries, should have this [capital] punishment discretion for some of the most heinous crimes, and those don't happen very often. Okay, so I think that that is an option that we should allow in the state of Texas. Along with that Scott, if there's any right that we need to watch government and oversight government very closely, is the right to take someone's life, regardless of what stage that's in, but we're primarily on this death penalty scenario, because there are no redos when you do this.

As Chairman of Corrections, even before I was chair, knowing that my committee oversight, I was on a committee that had oversight over at least the execution part of it, I thought it was important for me to go and oversight it in person, and watch it, and know about it, and watch one, that this is not a game. This is not just a campaign thing to say, "I'm pro-death penalty, you know, lock them up, kill them." No. If you're going to walk around with that on your chest, you go out and you oversight it and you watch it, and get a perspective on it.

We were just hearing all these horrible stories and, I thought, very embarrassing findings at the US Supreme Court, even a US Supreme Court that's dominated by Republican appointees, and I thought, "Wow, this is not really good for the state of Texas that we're getting embarrassed like this." We have definitive programs at the local level for simple felonies and misdemeanors, and the idea is that the state of Texas, our laws and Constitution state that on a death penalty judgment, that offender gets an automatic appeal all the way up to the Texas Criminal Court of Appeals.

We, the legislature, in our statute's and Constitution, maybe say that, so I think to stay out of pay for that and not have that as an unfunded mandate on our local government colleagues. From a fiscal standpoint I thought we needed to do it. Secondly, why not have a highly qualified crack team of attorneys look over these cases, at least give the public, the most important I think group here, the public, the general citizenry, that we have looked at these very closely, taken them through scrutiny, and so if they do go to the Supreme Court we have some certainty that we win.

Just think about also from the victim's standpoint. Now I know that's very controversial, but from the victim's standpoint, you go back, we have men and women on death row that have been on death row since the '80s or the '90s.

Scott Henson: That's right. There's no benefit to victims to wait decades for this to play out.

James White: Right, decades and decades and going on, and on, and on, appeal after appeal, and the victim has to relive this. The victim's family has to relive this, so how about some certainty, certainty competence, because these stories about, you know ... I talk to very, very smart people. I think Ms. Amanda Marzullo is very, very smart and competent, and to think that we have attorneys out there that are carrying multiple death penalty cases. When I sit down and talk to people like Amanda and she tells me the amount of reading and review you have to do, and they're carrying multiple death penalty cases, and oh by the way, they're doing felony cases, and some misdemeanor cases, and maybe some stuff in private practice, right?

You can't say that they're getting these offenders, defendants, are getting the type of due process that they deserve, especially if the state is going to provide this type of punishment. That was my reasoning. If we're going to do it, do it right.

Scott Henson: Well, and my sense was that in the wake of some of these innocence cases, in the wake of the Anthony Graves situation … this didn't seem to have the controversial edge to it because no one can look Anthony Graves in the eye and say, "No, you didn't need a decent lawyer."

James White: Right, and then Scott, take this. Take this for ... I'm not an attorney, but I mean some of the flaws and gaps in some of these cases, I'm like, "I'm not an attorney but gosh-lee, I think I could've caught without one."

Scott Henson: Yes sir. Well, let's close out by just asking what is your vision of where criminal justice in Texas is headed? What are some of the big challenges that we face, and as you look toward leading your committee in the interim, what are y'all going to be addressing going forward?

James White: Well, we're going to have a very aggressive interim. I think we want to look at ... I've been very, very concerned and disturbed about the number of our correctional officers that have been injured or killed in the line of duty, so I think we want to look at that. We want to look at the safety inside our units, the training that our correctional officers are being provided. We always want to look at Windham Independent School District, that is the district that serves the Texas Department of Criminal Justice. We want to make sure they have the resources and we're getting the outcomes that the taxpayers deserve.

You know, we want to look at also how people are promoted and progress in TDCJ. We want to make sure that we're getting the best folks in the right positions. That's not to say that we're not doing that now, but I sit down and talk to a lot of correctional officers for a lot of reasons, as I've stated. A lot of them are my constituents and we want to make sure that we're being responsive and we're providing them the questions that they deserve.

On the other hand, we want to make sure that we're providing our families the support that they need because they are a critical asset, a force multiplier in the rehabilitation process for our offenders, and also we want to make sure that we're constitutionally doing what we're supposed to do for our offenders. We'll be taking a lot of that and getting a lot of ideas from our committee, and also going back and looking at the rule-making, and the rollout, and the implementation of the legislation that this committee passed in the 85th.

As we move forward, and what I've found out Scott, we were always looking at the big stuff for the right reasons, the death penalty, sentencing reform, yada, yada, yada, right? But then you open up and you find out most of these criminal cases are on the misdemeanor level, and when you look at our involvement in issues like truancy reform, fine, criminal fine, misdemeanor fine reform, there is just a large corpus of work that needs to be done in the area of misdemeanor reform to make sure that we're not engaging in what I call small tyranny. I found out we've got a lot of small tyranny going on that's overlooked and eventually gets people into worse, bad situations, the Driver Responsibility Program, which gets people into bad situations, and I'm just hearing these horrible stories.

I think there is just such a large body of work to do over there in reforming that, because that's where we have a lot of cases, and as I tell my local government colleagues, their biggest unfunded mandate is the Texas criminal code.

Scott Henson: Well on that note, I think that's an excellent point. Thank you so much for visiting with me today.

James White: Yes. Thank you.

Scott Henson: I appreciate you taking the time to talk.

James White: Thank you sir.

Scott Henson: Well, all right.