Sunday, March 26, 2017

Harris County litigation frames debate over bail bill

Grits remains excited about bail-reform legislation being promoted by Texas Supreme Court Chief Justice Nathan Hecht and Court of Criminal Appeals Presiding Judge Sharon Keller this session, and carried at the Lege by John Whitmire (SB 1338) in the Senate and Andrew Murr (HB 3011) in the House. Those are some big guns aimed at a big problem.

The bills have been filed and at this point we're waiting to seen when the legislation will get a public hearing. There's still plenty of time, but the clock is definitely ticking.

Creating even more urgency for legislative action, an article from Courthouse News makes it sound like Harris County is losing its bail litigation against civil rights advocates in federal court. So the state may want to reform the system itself rather than wait for a judge to declare it unconstitutional and make the changes the way she prefers. Here's another story from Courthouse News describing the risk-assessment tool which would be used in Harris County if the plaintiffs win.

In the last legislative session, we saw an odd race between the Legislature and the Court of Criminal Appeals to be the first to define the scope of Texas' new junk science writ. (The Legislature won.) Now we see a similar race between the Legislature with its big pretrial bills and a federal judge who seems exasperated these changes haven't been implemented already in the state's largest county.

Formally, these two developments are unrelated. But if legislation passes, it will let judges in Houston acquiesce in the suit without losing face and perhaps could help forestall intervention into Harris County's system by the federal judiciary. Or, if the bill fails, Judge Rosenthal might feel free to impose her own sense of how things should work.

Creating new discretion for police to use deescalation methods

An excellent and necessary bill that's so far flown under the radar needs a quick referral and vote if it's going to pass this year. HB 3824, filed on the next to last day of bill filing by state Rep. Toni Rose, alters antiquated language about Texas law enforcement duties which has been in place in Texas since the days of the Republic (when there were far fewer laws, and lawmen).

The legislation changes a couple of "shall" arrests to "mays," making Texas law more amenable to officers implementing deescalation strategies in the field. If the law says the officer "shall" arrest the kid who stole a candy bar from the corner store, for example, then what choice did she have but to chase him into traffic?

In real life, officers exercise this sort of discretion every day. Why not codify what's already reality instead of pretending that officers can even know about, much less enforce, all the minor crimes sprinkled everywhere through Texas statutes. Police officers don't use the full force of arrest to punish every minor breach of the peace. Not only don't they do that, no one thinks they should. So the law shouldn't mandate an absurdity just because somebody wrote it that way before the Civil War. A lot's changed since then.

RELATED: Thompson seeks upgrades on police use of force, disciplinary process.

Saturday, March 25, 2017

The CCA, Judicial Activism, and Texas' Statutory Exclusionary Rule

One of my pet peeves with the Government-Always-Wins faction on the Texas Court of Criminal Appeals - which in this instance carried with it most of the rest of the court - arose in a recent ruling on the Fourth Amendment and Texas' statutory-based exclusionary rule: Bradley Ray McClintock vs. the State of Texas. To be clear, I am not a lawyer. But one needn't have earned a law degree to see that the GAW faction on the court clings to Texas statutes in the face of federal precedents whenever they're more likely to help the government, but then inexplicably grasps at federal justifications whenever they want to ignore the printed word of Texas statutes because they'd like this or that case to turn out differently (read: in favor of the government).

The ruling on Ex Parte Robbins - Texas' first-in-the-nation junk science writ - perhaps best exemplifies this trend toward using any means necessary to avoid relying on plain statutory language when the GAW faction thinks it will result in outcomes they don't like. But if you pay close attention, it happens all the time.

This outcome-oriented judging - the very definition of judicial activism - has plagued the court for years and was on full display this week. In the McClintock case, the CCA reviewed a lower appellate court ruling which held, relying on longstanding precedent, that evidence obtained without probable cause, even if a judge improperly issued a warrant, must be excluded. The CCA reversed the lower court, allowing evidence from the improper search to be used against the defendant.

Here's what you must know to fully grok this debate: Texas, in this area of the law as in much else, is different. At the federal level and in most states, the "exclusionary rule" - which allows evidence to be excluded if the state doesn't follow constitutional guidelines as articulated by the US Supreme Court - is a remedy created of, by and for judges in court rulings. It's modified by SCOTUS whenever they find it convenient, and mostly provides an excuse for federal judges to do whatever they want. Conservative critics of judicial activism have justifiably identified the federal exclusionary rule as an example of judges writing laws to empower themselves and the government instead of interpreting them to limit government power.

But in Texas, the Legislature enacted a statutory exclusionary rule in the 1920s which since then has withstood all manner of efforts to overturn it. Here, the exclusionary rule is not "judge-made law." It was written into statute by elected representatives and senators in plain language and baked into the DNA of the state's 20th century legal system.

This week, though, in McClintock, the Court of Criminal Appeals yielded state sovereignty on this question and diminished legislative authority in deference to federal judges' conception of the exclusionary rule, adding for Texas a new federal exception that has no basis in state law.

Alone in her dissent was Judge Elsa Alcala, apparently the last remaining judicial conservative on the court, if by that one means judges interpreting the words of the Legislature instead of casting about for justifications that support one's personal preferences for an outcome.

Alcala recognized that the lower court was correct in ruling that "the Texas good faith exception in Article 38.23(b) does not apply to this case." The majority opinion relied on a federal case (Davis) to apply a new, different, and more expansive definition of a good-faith exception than any Texas high court in nearly a hundred years has believed that our state statute allows.

The majority opinion (written by Judge Kevin Yeary, but joined by every other judge except David Newell, who did not participate) wondered instead whether the Legislature in 1925 might have meant by "probable cause" something "more than the common-place definition of the term," deciding that, in fact, the Lege had left sufficient leeway for the court to pretend it means whatever in Heaven's name they want it to mean in 2017. And he wanted to incorporate the broadened good-faith exception in Davis.

Alcala's complaint with Yeary and Co. was simple: "It is inappropriate to consider extra-textual sources to evaluate the meaning of the plain language in a statute that is not ambiguous." Bingo! That's certainly what the Government Always Wins faction would say if the textual argument swung their way. It's also what's been touted for five decades as the essence of conservative judicial philosophy, which the CCA majority has here abandoned.

The Court is supposed to go beyond the text of the statute for interpretation only when the language is ambiguous or would lead to absurd results, Judge Alcala observed. Citing to the Texas Constitution, she contended in contrast to the majority that, "Disallowing the results of searches of people's homes when there is no probable cause to support the search is not an absurd result, and, rather, it is the best way to ensure that people feel secure in their homes."

In the political realm, you hear conservatives complain bitterly about the federal, judge-made exclusionary rule. In some quarters, the issue has reached nearly Culture-War status. But at the Court of Criminal Appeals, the Government Always Wins faction loves the federal Exclusionary Rule, adopting every exception from it that they could remotely justify under Texas' more strict statutory language. The problem is, this most recent exception can't be squared with the text of the statute. You have to pretend that a case where the court already ruled probable cause did not exist can satisfy the requirements of a standard which mandates that it does. The black and white words on the page don't afford Texas state judges the wiggle room that federal judges have luxuriously allowed themselves.

Judge Alcala is fighting the good fight and at least demonstrating - if alone, and embattled - what it means for a state judge in Texas in the 21st century to retain a commitment to federalism, textualism, and to reject judicial activism. To her mind, "this Court has already held that there was no probable cause in this case under a correct application of the law in existence at the time of the search. In the absence of a warrant based on probable cause, the plain language of the statute precludes any consideration of whether the officer acted in good faith reliance on the warrant." It's that simple. But then you look at the outcome of the case, and obviously it is not.

Using similar methods under leadership of the Government Always Wins faction, the CCA over the years has muddied the waters surrounding Texas' statutory exclusionary rule to an enormous degree, allowing the ever-changing judge-created federal version to usurp our legislatively crafted one. Sadly, we just saw a 7-1 affirmation on the Court that this ignominious trend of judicial activism will continue forward into the future. And the only judge who seems committed to countering it has said she'll leave when her term ends in 2018.

Thursday, March 23, 2017

Whining counties, and defense lawyers, and prosecutors ...

While work and family obligations have intervened to disrupt regularly scheduled blogging, here are a few odds and ends which merit Grits' readers' attention.

Kerry Max Cook: Lawyer brown nosing Smith County DA blew deal
Michael Hall explores Kerry Max Cook's reasons for rejecting a deal which would have finally exonerated him of capital murder after nearly forty years, and why the Court of Criminal Appeals may overturn his conviction anyway. Great stuff as always from Mr. Hall. What a mess.

Nobody bought defense bar arguments vs. capital appellate defender
The push to create an appellate public defender for direct appeals in capital cases took an important step forward this week, with HB 1676 by James White (R-Woodville) approved unanimously without amendment out of the House Criminal Jurisprudence Committee. The SA Express News concurrently published an editorial decrying the small pool of private attorneys available for those cases. Readers may recall that, before the hearing, in an interview with Grits on the topic, the Texas Defender Service's Amanda Marzullo showed how woefully deficient most representation of indigent defendants in capital cases has been.

The hearing was a bit of a zoo. The private criminal defense bar woefully misread the room, showing up to push for a flawed "managed assigned counsel" system so their members wouldn't lose business. But since the principle reasons suggested for creating the system were that private attorneys' work product on capital direct appeals empirically was poor, unreliable, and often cut and pasted without any specific analysis related to the instant case, nobody on the committee seemed to be in a mood to oblige complaints that this work (maybe 6-8 cases a year) might instead go to a small, three person public defender office that would cost less for a superior product.

GOP alternative approach to drug abuse emerging
Notably, a recent article in National Review touts drug courts and community corrections as the correct, conservative path toward confronting opiod abuse. Here in Texas, HB 2398 (King) would take precisely that path, reducing penalties for user-level possession cases and using the savings in incarceration costs to pay for drug treatment and community supervision at the local level. There is emerging an alternative GOP approach to confronting drug abuse - pioneered by our friends in the Right on Crime crowd - in a way that supplies a path to recovery rather than punishing every soul who has succumbed to addiction with a felony conviction.

Reining in asset forfeiture abuses
It's Asset Forfeiture Reform Day in a House Criminal Jurisprudence subcommittee next Wednesday. This could be one of the more contentious debates of the session. A bipartisan reform coalition comes loaded for bear while one may expect a parade of police and prosecutors wailing and moaning at the thought of losing their favorite revenue stream/slush fund. (Whining is a theme of this roundup, one notices.) Grab popcorn and watch it online if you can't come: Should be a hoot.

Raise the Age
TPPF's Marc Levin makes the conservative case for Texas' raise-the-age legislation. From your mouth to John Whitmire's ear, my friend.

A disingenuous debate over unfunded mandates
Counties are using indigent defense as an example of "unfunded mandates" from state government for which they must pay. However, most of the increased caseloads experienced since the turn of the century stemmed from local decisions to prosecute less and less serious cases, even as crime fell. I'm open to debating the level of state contribution to indigent defense funding on its own merits, but Grits dislikes this phony baloney "unfunded mandate" debate. The FAR bigger unfunded mandate comes when DAs seek or judges order extremely long sentences for which state government must foot the bill. Note to counties: How about this deal? What if the state pays for indigent defense, and counties pay the cost to incarcerate every individual whom they convict and send to prison? It'll be an even swap of funding responsibilities. Why wouldn't they? Because the unfunded mandate in the state's direction is in reality much, much greater. Framed in that light, i.e., in light of reality, complaints of "unfunded mandates" from counties to me come off as disingenuous and whiny.

Texas not only state denying prosecutors access to police misconduct records
Texas is not the only state where records about police misconduct are concealed from prosecutors who have an obligation to disclose them to the defense. California is struggling with the same conundrum. Here, passage of the Michael Morton Act placed the issue in stark relief at cities which opted into the state civil service code (~70), an issue first raised publicly by Court of Criminal Appeals Judge Barbara Hervey. This situation spurred state Sen. Juan "Chuy" Hinojosa to file SB 783 to open those files up as is the case at hundreds of other law enforcement agencies around the state. For more background, see here.

Tuesday, March 21, 2017

House tackling debtors prison issues in 85th Lege

Poor people with municipal court debt may find relief from the 85th Texas Legislature. Not only is Rep. James White promoting much-touted legislation that would end the practice of jailing people for unpaid fines (Chuy Hinojosa filed a companion bill in the senate), judges may gain new authority to order community service or even waive fines when an indigent driver simply can't afford them.

HB 351 by Canales - a bill which originated with a Grits for Breakfast blog post, according to the author's presentation to the House Criminal Jurisprudence Committee - was approved  by the committee unanimously and referred to the Calendars Committee to be scheduled for a floor vote. 

Grits loves this bill, which would eliminate the requirement that judges wait until a defendant has defaulted on payments before declaring them indigent. Instead, judges could order community service or even waive fees and fines at the time of sentencing, rather than setting an unrealistic requirement and then waiting for them to fail. That makes a lot more sense.

It's a sign of significant support that it was heard and voted out of committee so early, and stands a great chance of making it over to the senate, perhaps even becoming law. See earlier Grits coverage.

UPDATE (3/22): This bill passed the House on second reading today with minor amendments. The main change was to tell judges to put in a time limit on how long defendants have to complete their community service. Exciting that this bill has gotten so far, so early. NUTHER UPDATE (3/23) The bill passed the House with no third reading amendments. One chamber down!

Thursday, March 16, 2017

Jailing for debt, prison oversight, 'penal populism,' and other stories

Here are a few odds and ends which merit Grits readers' attention while mine is focused elsewhere:

Stop jailing Texans for debt
The Texas Tribune's Jonathan Silver has a story on the ramifications of HB 1125 by Rep. James White, discussed earlier on Grits here, which would forbid arrests for nonpayment of Class C misdemeanor fines. Sen. Juan "Chuy" Hinojosa filed a companion on the eastern side of the building. The use of jail to collect debt was the subject of an excellent recent report from our friends at the Texas Fair Defense Project and Texas Appleseed. That document makes the case for this legislation better than I could in a few sentences, so check it out for more background. Great bill.

First look at prison oversight
The House Corrections Committee this afternoon will hear HB 1421 by Rep. Jarvis Johnson to create an independent ombudsman for TDCJ comparable to the one aimed at juvenile facilities which was created after the 2007 sex-assault scandals. Borris Miles has the companion in the senate. Any skepticism I've had over the model has been long ago quelled by how the ombudsman functions on the juvenile side. And after repeated stories of inmates dying for lack of an asthma inhaler, heat related deaths, or being beaten or starved or sexually assaulted, Grits is convinced this is the best way to get a handle on the sprawling agency's problems. No fiscal note has been posted as of this writing, but financial arguments may be the proposal's Achilles heel in a session with budgetary red ink flowing like wine. One can make a strong argument it could save money in the long term - an ounce of prevention being worth a pound of cure - but maybe not in the first two-year cycle.

Harris to provide lawyers for the poor at bail hearings
The installation of public defenders at bail hearings for the indigent in Harris County is a major step forward. This would have never happened without litigation from the Texas Fair Defense Project and Civil Rights Corps. Now that the issue is out in the open, the Legislature should require it statewide.

More detail on new Harris County pot rules
Not everybody benefits.

For the data geeks
Some new BJS publications for the data nerds among you:
Penal Populism: Rise of the Dicks
The phrase "penal populism" is new to me, but the concept is familiar. Wikipedia defines it as the "process whereby the major political parties compete with each other to be 'tough on crime'." This academic article argues that penal populism corrupts democratic institutions and wastes resources on counterproductive and even harmful punishment measures, constituting an "attack on the long established link between reason and modern punishment." Yup.

Tuesday, March 14, 2017

Path cleared for reduced pot penalties in TX House

Chairman Joe Moody
Before yesterday's House Criminal Jurisprudence Committee hearing on Chairman Joe Moody's HB 81, which would reduce penalties for low levels of marijuana to a civil penalty, Grits commented to a friend that the over/under for how many people would testify against it IMO was probably 1.5.

"Under" won. Only one person spoke against the bill last night, Ector County DA Bobby Bland (not to be confused with the late, great blues singer of the same name, who would certainly have favored the measure).

Consider that: No police chiefs testified against. The Sheriff's Association laid off the bill. So did the Texas Probation Association and all its members. No anti-drug advocates were against it. No neighborhood associations. No mayors or city council members. No county commissioners. No teachers, or doctors, or mental health advocates. No judges. No police unions. None of those groups, or even individuals from their ranks, came out against the bill. Just one lone prosecutor from Odessa spoke against it, with DAs from larger jurisdictions all neutral or in favor. (See MSM coverage from the Express News.)

This remarkable development was not lost on Vice Chairman Todd Hunter, who for these purposes is more importantly the Chairman of the House Calendars Committee. That's the panel which sets bills that have passed out of committee for floor votes by the full House. He intoned in a warning-filled baritone that only one person had testified against the bill that night - Mr. Bland, the Ector DA - and the chairman did not expect to see anyone who had failed to oppose it in committee come out against HB 81 later in the process.

Chairman Todd Hunter
This was a significant caution, with an implicit threat behind it. As chair of the Calendars Committee, Hunter is in a position to punish special interests who don't heed his admonition by failing to set their other favored bills for floor votes. Only someone with no proactive agenda at the capitol at all would want to place themselves in those crosshairs, and that certainly doesn't include any of the interests listed above.

In all, this was a positive first step on a long path for HB 81. Last session, the bill got a hearing late and then was heard in a free-for-all alongside a pot-legalization bill that distracted from all the pragmatic arguments for Moody's measure. This time, the bill was heard in the second substantive hearing of the Criminal Jurisprudence Committee and, barring the unforeseen, should be voted out as early as next Monday.

Hunter's commentary makes me think the bill should receive a relatively warm reception in the Calendars Committee, which means we may FINALLY get to see a House floor vote on reducing marijuana penalties in Texas. Since the 2005 session, when a bill to reduce low-level penalties to a Class C cleared the same committee unanimously under then-Chair Terry Keel, Grits has believed the votes were there on the House floor to pass this bill or something similar, if the leadership would ever let it onto the floor. Maybe this is finally the year. It's about damn time!

In an aside: More than 4,500 Just Liberty supporters have sent emails to their state legislators supporting Moody's bill over the last three months, and we'll be going out again on the topic if and when it's out of committee. Go here to sign up if you're not already on the list.

Sunday, March 12, 2017

Marzullo: The case for a capital appellate defender in Texas

Tomorrow, the Texas House Criminal Jurisprudence Committee will hear HB 1676 by James White, which would create an appellate public defender office to assist with capital cases comparable to the State Prosecuting Attorney on the prosecution side. On behalf of JustLiberty.org, your correspondent interviewed Amanda Marzullo, interim executive director of the Texas Defender Service, about the need for the bill. Ms. Marzullo last fall published the most detailed analysis available of direct capital appeals in Texas, and some of the findings were flat-out breathtaking. Listen to our interview here, or find a transcript of our conversation below the jump.


Criminal justice job security in an era of declining crime

Despite crime near recorded lows in many areas, Texas cops, prosecutors and courts continue to treat the drug war as a growth industry. Here are a few tidbits from David Slayton's introduction to the FY 2016 Annual Statistical Report for the Texas Judiciary:
  • The number of traffic and parking cases fell 37 percent from its peak in 2006 and is at the lowest level in more than 30 years – traffic and parking cases make up over 80 percent of the fine-only misdemeanor cases in the state; 
  • The number of truancy cases fell 91 percent and parent contributing to nonattendance fell 71 percent on the heels of truancy reforms that went into effect at the beginning of the fiscal year;
  • The number of capital murder convictions (3) and death sentences (3) dropped to an all-time low; 
  • Despite the fact that new misdemeanor cases have fallen 29 percent in the last ten years and is at the lowest rate since 1992, new misdemeanor drug cases increased 9 percent to a new peak
  • Felony drug possession cases increased 7 percent and is up 28 percent in the last five years
  • The number of misdemeanor and felony theft cases dropped 32 percent and 14 percent, respectively, with the misdemeanor thefts marking the lowest number in at least 30 years; (emphasis added)
Notably, DWI cases "were at the lowest number in at least 30 years and was nearly half of the number filed in 1985." This is mainly because of prosecutors and judges diverting DWI cases to offenses which don't include the Driver Responsibility surcharge.

Grits has discussed before how convictions continued to rise in Texas even as crime and arrests waned in recent years. These fact-bites demonstrate how. When crimes with victims aren't available to prosecute, you go after crimes without them, like drug possession. Job security, baby!

That's especially true for felony cases. "The number of new felony cases filed was 6 percent lower than the peak rate in 2007, but it has increased slightly each of the last four years." However, "Drug cases accounted for nearly a third of new felony cases filed in 2016." So the drug war is the principle source of growth in felony filings.

In related news, civil cases are dropping, but "civil related to criminal" - e.g., bond forfeitures, nondisclosure, occupational licenses, etc. - rose significantly over the last five years.

Another notable judicial trend mentioned in the introduction: "The number of opinions issued by the Court of Criminal Appeals increased 64 percent, pushing the time to process petitions for discretionary review slightly upward." This has a lot to do with Presiding Judge Sharon Keller. She was on the losing end of more decisions than usual in FY 2016 and typically had something to say about it in a slew of dissents. Judge Elsa Alcala also contributed to that number.

Saturday, March 11, 2017

Highlights from new state report on bail v. risk assessments

Grits has yet to fully vet/grok the just-filed bail reform bill, but the new report from Texas A&M's Public Policy Research Institute on the topic (see a shorter summary, a press release, and a technical appendix) makes for interesting reading. I thought it worthwhile to point out a few highlights. (N.b., links below are to screenshots of related graphics; links to the report on the Office of Court Administration site are thankfully live again.)

The study compared Travis County, which operates under a risk-assessment model, releases 59 percent of inmates on some form of personal bond, compared to 9 percent in Tarrant County. (Real numbers 60% and 6%; see the update below for clarification from Dottie Carmichael.)

The differences in outcomes were striking.

For starters, the finding that victimization rates were dramatically lower under a risk assessment regimen compared to money bail may be the most persuasive argument they made.

Pretrial detention costs under money bail were 42 percent higher than under a risk assessment model, the study found. At a time when counties are complaining bitterly of unfunded mandates, that's a big potential savings which could be handed to them.

Jail stays - both the initial detention and after rearrest for absconders - were shorter under a risk assessment system.

Poor people get hit much harder under money bail. "Not only are more people detained on a low bond in the financial release system, but a higher proportion of those defendants have a statistically low risk of bond failure." To put a number on it, "three times more people in the financial release system would likely succeed if released but remain in jail because they cannot pay $200 or less for a commercial bond."

MORE: Report author Dottie Carmichael emailed with this clarification:
Tarrant:  The correct number for personal bond in Tarrant County is 6%. Travis:  The correct number for personal bond in Travis is 60%  There must be a rounding difference when you split out PB by supervision category in Figure 4 (no supervision, minimal, and full) because when all 3 groups are combined, 59% becomes 60%.  A better summary graphic for this point is on page 33: 


As for the guy who thinks it all came from a PIR, we used 3.5 years of individual-level defendant data – 102,000 cases in Tarrant and 61,000 cases in Travis.  I am sure you know no one could possibly replicate what we did with a PIR since Travis County had not combined the different data sources or diced the data to answer these specific questions.

Thursday, March 09, 2017

Dead dogs, shot owners, greedy clerks, phony risks, and a 'seismic change in police interrogations'

Here are a few odds and ends that each merit their own blog posts, or at least they would if I weren't spending my days writing Just Liberty emails and action alerts. (E.g., go here to send your state rep an email asking them to sign on in support of Rep. Garnet Coleman's "Sandra Bland Act.") So while Grits is focused elsewhere, check out:

Wednesday, March 08, 2017

Bail bondsmen fear losing business: Plan bitter fight vs. bail bill, litigation

We see here that bail bondsmen are gearing up to fight the Whitmire/Murr bail reform bill filed this week as well as to counter bail litigation in Houston.

At the Lege, the bail industry's arguments are all about the important services they provide and how much they contribute to public safety. Among themselves, though, their vested interests are more explicit. From a "P.S." to a fundraising request: "Please understand that you, your family and your employees are facing being unemployed. This is as serious as it gets."

The same complaints, of course, were being made by buggy whip manufacturers at the inception of the automobile, not to mention candle makers upon the invention of Edison's light bulb. When you provide an obsolete service, eventually demand for it dries up, which is what could possibly happen now to the bail industry in Texas.

The Whitmire/Murr bill won't really eliminate the bail industry, of course, just focus it on more serious offenders. But the easy money in the bail game is made paying for release of low-level, low risk misdemeanants who have jobs, pay their bills, and are unlikely to flee the jurisdiction over a small-time case. What's now being recognized is, given that that's the case, government doesn't really need the bail industry to get those people to come back to court, and sustaining their outdated business model creates unintended consequences and damaging ripple effects across the system.

This will be a bitter fight, but a necessary one.

RELATED: From the Courthouse News Service, "Pressure mounts against the bail system in Houston."

Tuesday, March 07, 2017

Bail reform, on blast

With the Harris County District Attorney now siding with plaintiffs in bail-reform litigation, a pivotal hearing before federal Judge Lee Rosenthal launched yesterday in Houston. Meanwhile, bail-reform legislation was finally filed yesterday in Austin. It was a big day for the topic.

It turns out, even the threat of a litigation-imposed settlement spurred some improvement: "As of last May, when the lawsuit began, only about 8 percent of the county's misdemeanor offenders received no-cost personal bonds - though that percentage has slowly grown. In October, 14.5 percent received personal bonds, county records show."

Re: Ogg, Grits liked this pithy analysis from Alec Karakatsanis, of the Civil Rights Corps, which is taking the lead in the bail litigation, on why Ogg backed plaintiffs' position: "Sandra Bland didn't have money, Robert Durst did. Prosecutors recognize the absurdity in that."

But the biggest news of the day on bail reform was the filing of long-awaited legislation on the topic. Grits has yet to go through the bill in detail or speak with experts about it, but UH law prof Sandra Guerra Thompson in an email offered these initial thoughts:
The Bill is Filed! The Bill is Filed! At long last, we have a bail reform bill filed in the Texas Legislature!!!! HB 3011 filed by Representative Andrew Murr of District 53 (comprised of several counties in the Kerrville area) and SB 1338 by Senator John Whitmire of Houston, the Dean of the Texas Senate and long-time criminal justice visionary. This bill will modernize Texas bail law and improve the lives of thousands across the state who find themselves in jail. The bill would implement a risk-based bail system, which would result in using jails only for those who present genuine public safety risks, while releasing the vast majority of people who may be safely released.

The bill codifies the vision of the Judicial Council, which worked for over a year to produce its well-reasoned Resolution and Recommendations to the Legislature. Last summer, Chief Justice Nathan Hecht gave eloquent testimony before the House joint meeting of the committees on County Affairs and Criminal Jurisprudence. On February 1, 2017, he made another powerful appeal for legislative reform in his State of the Judiciary speech.

The March of Progress! Once enacted, the modernized bail law would provide smaller counties with an automated risk assessment instrument, like those that have been implemented in the large and several medium-sized counties. I have learned that the Office of Court Administration has completed its report on a statewide survey of pretrial services which will be presented to the Texas Indigent Defense Commission next week. I look forward to reading the report and will summarize it in my next update.

Bail Reform will Save Lives. Had risk-based pretrial release been used a couple of years ago, it would surely have saved Sandra Bland’s life. It might also have saved the life of Vincent Dewayne Young who committed suicide in the Harris County jail the day before Valentine’s day last month. A modern, risk-based bail system might also have saved hundreds of the 1,111 people who died in Texas jails between 2005-2015, 90% of whom died as a result of suicide, or mental or physical illnesses. The poorest people who get stuck in jail for lack of bail money tend to be the sickest as well, and they don’t have their medications when they’re booked into jails. The money bail system effectively means a death sentence to these vulnerable people. 
Ending Pretrial Punishment. If your loved one is arrested tomorrow in Texas, he or she will almost certainly be required to pay money to get out of jail. For most people who cannot pay the entire amount of the bail set, the only viable way to get out of jail is by making a non-refundable payment to a bondsman. This amounts to punishment, a fine, without proof of guilt. As someone who has paid bail money to get a cousin out of jail in Houston, I will tell you that it feels very much like pretrial punishment. The same troubled cousin was later arrested in Austin where judges have implemented a risk-based system, and he was released on a PR bond within a few hours. This use of PR bonds, based on a validated risk assessment, is what the bail bill would implement. The vast majority of people arrested are low-level, low-risk people who should be promptly released on PR bonds upon a finding that they are safe to be released. Rather than pay for a bail bond, they can use their money to pay for an attorney so the county doesn’t have to appoint one at taxpayer expense. 
Countering the Misinformation. To the many legislative directors and aides reading this, please talk to your members. The bill does not eliminate the possibility of money bail, but it would reduce its use. There will surely be a misinformation campaign about how the bill is an “unfunded mandate” and creates public safety risks because judges will indiscriminately release dangerous people. Opponents will say that the bail bond business provides a public service for free. None of these things are true. I have nothing against bondsmen; they are simply small business owners. Unfortunately, however, the service this industry provides is inconsistent with sound public policy. Times change. We no longer need or want typewriters in offices or trans fats in our foods either. More effective products displace those that no longer serve us well. 
Meanwhile, back at the ranch . . . Houston officials defend the indefensible. Litigants have challenged the money bail system in Harris County, the state’s largest and deeply intransigent jurisdiction. The trial started today, March 6th. The litigation shake-up, combined with the election of reform-minded officials, has already brought some progress. Remarkably, the District Attorney Kim Ogg, following the lead of the Sheriff Ed Gonzalez, recently filed an amicus brief siding with the plaintiffs who are suing the county’s misdemeanor judges (see attached brief). So far, the county refuses to budge from its stance supporting the use of money bail, even though the system has been shown to be arbitrary, wasteful, cruel, and dangerous. The county’s lawyers went so far as to make the ludicrous statement that some people are in jail because they prefer to be there! 
Holding tight to the Bail Schedule. To deflect the criticisms, Harris County officials have agreed to do everything short of getting rid of the bail schedule. Last month, they touted the implementation of the Arnold Foundation risk assessment instrument, which would be important if the judges were actually planning to make decisions based on risk assessments rather than simply following bail schedules. They have no plans to do away with money bail, and that is why the county has been unable to settle the lawsuit.

Here are other “baby steps” that Harris County has made, while desperately clinging to the money bail system. After years of feet-dragging, county officials have finally agreed to provide people with public defenders at bail hearings as part of a pilot project. (I will never understand why a “pilot project” is necessary. By what measure will they evaluate whether it is a good idea to give people access to a fair defense at bail hearings? Keep in mind that prosecutors have participated at these hearings for many years. That’s right—the county has held one-sided hearings with a prosecutor and magistrate, but no one to speak for the jailed person!)

To its credit, the county has started several programs to reduce the number of people in jail: the District Attorney’s policy to“legalize” of small amounts of pot, a “reintegration court” to get minor offenders out of the jail quickly, and very modest efforts to get the seriously mentally ill out of the jail and into treatment facilities. All of these programs are welcome and long-overdue, but they are not bail reform.

The Whitmire/Murr bill represents true bail reform for Texas and should be strongly supported. Now I am waiting for a hearing to be set!

Sunday, March 05, 2017

Why Grits still opposes a Texas texting ban

It's March of an odd-numbered year, so it must be time for a new round of demagoguery and overstatement about texting while driving and a renewed push to criminalize it.

First, a caveat: Grits acknowledges that texting while driving is unsafe and discourages the practice. But not every unsafe activity warrants a criminal law and, in this case, the arguments militate against it.

That's for a number of reasons. For starters, reckless driving is already a crime. If someone is texting and it results in bad driving, wouldn't that qualify? Why not enforce that law instead of creating a new one?

Moreover, what if a texting ban actually increased the number of distracted-driving accidents? An oft-ignored study by the Insurance Institute for Highway Safety found that states which enacted texting bans saw crashes increase. If they did acknowledge that study, texting-ban proponents would have to admit these uncomfortable facts:
It's perplexing for both police and lawmakers throughout the U.S.: They want to do something about the danger of texting while driving, a major road hazard, but banning the practice seems to make it even more dangerous. 
The Insurance Institute for Highway Safety says that 3 of every 4 states that have enacted a ban on texting while driving have seen crashes actually go up rather than down. 
It's hard to pin down exactly why this is the case, but experts believe it is a result of people trying to avoid getting caught in states with stiff penalties. Folks trying to keep their phones out of view will often hold the phone much lower, below the wheel perhaps, in order to keep it out of view. That means the driver's eyes are looking down and away from the road.
The studies you see supporting a texting ban test whether drivers are better or worse at their appointed tasks while texting. But we can grant that texting is not ideal and still understand that the same distraction can be caused by looking at the map on their navigation system or digging around for the last french fry in a fast food bag. And we can also recognize that it'd be an even worse distraction if they were holding the phone out of view to avoid detection. What you don't want to do is make things worse.

That's the problem: There's a very real chance that do-gooders seeking a texting ban will cause more harm than they prevent. And their good intentions won't be a comfort to victims if death totals rise, as they did in 3 of 4 states where texting bans were enacted.

Anyway, many types of distractions cause people to take their eyes off the road, and Grits is unconvinced this problem is worse than people eating fast food while driving, putting on their makeup, or disciplining kids in the back seat.

There's also the fact that phones are used for a lot more than texting, including legitimate purposes like playing music or performing navigation functions. So the same activity - looking at your phone - could indicate legal or illegal activity. How can the law be enforced fairly?

Finally, Grits believes that, precisely because of this ambiguity, texting bans will be used by law enforcement for pretext stops - as an excuse to question people and look inside their car for other purposes, perhaps requesting consent to search or interrogating the driver about their activities.

San Antonio logged 12,000 tickets for texting while driving in the first year of their ban (at $200 each, so raising $2.4 million in Class C misdemeanor fines). This is happening at a time when the number of traffic tickets overall statewide has declined, so texting bans give local police an excuse to ramp up traffic stops at a time when the trend is in the other direction.

That's why Grits doesn't favor the texting ban legislation up in the Texas House Transportation Committee this week and hope it does not pass. It strikes me as an example where people's anger and innate judginess has overwhelmed their capacity for reason.

No, I don't approve of texting while driving. But I'm even less a fan of criminalizing common human behaviors so the government can make money and insert themselves into people's private affairs. And that goes double when doing so might worsen the harm it purports to prevent. In general, I want law enforcement to have fewer reasons  to get into average people's business, not more.

Jailed for Debt: The (Last?) Great Texas Warrant Roundup

If Rep. James White's HB 1125 - which forbids municipal courts and Justices of the Peace from issuing arrest warrants for fine-only offenses - were to become law, this annual foolishness would end:


Jailing defendants for Class C misdemeanor fines is about revenue generation, not public safety. E.g., here's a recent story of a woman facing jail time for unpaid library fines in Victoria County. As Harris County DA Kim Ogg said this week in another context, "It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time. ... These secure beds and expensive resources should be prioritized for the truly dangerous offenders and 'flight risks' who need to be separated from the community."

See a primer on debtors prison practices from the Marshall Project.

Saturday, March 04, 2017

Blaming the victim on insurance mandates

Some debates over bad ideas never seem to die.

A Texas House Insurance Committee meeting Monday will feature a bill (HB 178) which would require impoundment of uninsured vehicles involved in accidents.

This bill isn't as problematic as its near cousins filed in recent sessions to impound any uninsured car, but it's a step in that direction.

The problem comes because SOOO many Texas drivers can't afford insurance. The number used to be one in four drivers were uninsured. After a decade of intense efforts to drive that ratio down, it's now one in seven.

But that's still a whopping 2.5 million people driving without insurance. Moreover, in a real sense the economy depends on them doing so to get to work, to shop, to get their kids to school. The state has zero interest in all that activity grinding to a halt.

As it does with immigration and so many other situations, Texas keeps unreasonable laws on the books then pretends to enforce them in narrow circumstances while ignoring that the fundamental premise underlying their actions is not tenable. We can't impound every car without insurance, and threatening to do so will likely boost the number of hit and run accidents, because people will fear automatically losing their cars.

Plus, like asset forfeiture, this will inevitably be abused by law enforcement agencies which will quickly come to see auctioning uninsured cars as a new, lucrative revenue stream. Giving government bureaucracies a profit motive to take people's stuff is a bad idea, however good the intentions are behind it. (The impounding agency gets to auction the car and keep the money if the driver cannot get insurance and reclaim the vehicle within 60 days.

Besides, if the uninsured driver has caused injury or property damage, taking away their vehicle means they can't get to their job every day to earn money. That's the best way I can think of to ensure they'll never be able to pay those debts.

This is an example where what sounds like a logical response may end up creating way more problems than it solves.

Grits considers such proposals to suffer from a lack of perspective and creative thinking. In the big picture, just like requiring private citizens to purchase health insurance under Obamacare couldn't possibly cover the entire market, neither can the government requirement that private citizens buy auto insurance. It's an identical situation: If you think Obamacare can't work, the same critique applies to car insurance.

If government thinks people need car insurance, Grits has long maintained that having drivers pay at the pump through gasoline taxes would be the best solution. Make it universal and something you can't avoid paying for if you drive. Then these debates can properly move on to blaming the government for high taxes and often-unnecessary mandates instead of blaming drivers/taxpayers for being unable to bear the burdens government has placed on them.

Friday, March 03, 2017

'Sandra Bland Act' filed (updated)

Rep. Garnet Coleman unveiled his long-awaited "Sandra Bland Act" (HB 2702) yesterday at a press conference outside the Texas Supreme Court building. (I'd tweeted out a few photos of the event for Just Liberty.) See a summary of the bill's contents and initial MSM coverage:
Between this legislation and Rep. Senfronia Thompson's HB 2044, the two most significant police accountability proposals in the 21st century have been suggested this session.

MORE: It should probably be mentioned that the "Sandra Bland Act" includes reforms which don't derive specifically from her story. For example, reported the Texas Tribune, "Substance abuse would be added to the list of treatment services eligible for Department of State Health Services grant money that already supports public and private sector efforts to tackle homelessness and mental illness locally." But Sandra Bland wasn't intoxicated and didn't need drug treatment.

Similarly, "Counties would be required to develop a plan for how local mental health authorities, law enforcement groups and other community organizations will work with people experiencing homelessness, mental health crises and/or substance abuse." But there's no evidence Sandra Bland was mentally ill and her friends and family say it isn't true.

And while Grits wholeheartedly agrees that police should "make a 'good-faith effort' to divert people to treatment — instead of arresting them — if they are experiencing a mental crisis or substance abuse," that's not what was going on when Sandra Bland was arrested. There also wasn't any mental-health medication she was supposed to be taking that she didn't get, though under the bill, counties must "ensure inmates continue to receive medication they would be taking if they weren't in jail."

I support all these things, but they don't have anything to do with why Sandra Bland was arrested, incarcerated, or died in jail. It's not why her story has become a national touchstone, told and retold countless times both IRL and online, nor why activists insist people #SayHerName.

Other elements of the bill are more directly on point with Bland's story. Eliminating arrests for non-jailable offenses would have prevented the episode from ever launching in the first place; if that were the law, she'd have finished her cigarette, been given a ticket, and gone on her way, grumpy but alive.

This to me is the heart of what makes this the "Sandra Bland" Act, and it's an issue other bills have addressed as well. The reason Bland's name is known is the roadside video of her and Trooper Brian Encina. And what people saw on the video was a state trooper who expected Bland to defer and kowtow to his every whim, a woman in no mood to take crap from him, and an arrest made to punish her insolence more than to protect the public. That such an arrogant abuse of power resulted in her death is the crux of why Sandra Bland's name and image have become international icons.

Other parts of the bill also draw directly from her story. The presumption that nonviolent misdemeanor defendants will receive personal bonds unless a magistrate finds "good cause" for detention would have likely ensured she didn't spend the weekend in jail for want of $500. Requirements for deescalation training are on point, as is creation of a "County Inmate Safety Fund to help fund reforms for county jails that have inmate populations of 96 or fewer."

Grits strongly supports Coleman's bill, which includes many elements that seriously need to change. But it's not all about Sandra Bland. Indeed, it never was.

Thursday, March 02, 2017

Bill bows to pragmatism, overburdened muni, JP courts to help indigent

One of the first bills up in the Texas House Criminal Jurisprudence Committee this year, HB 351 by Rep. Terry Canales, would eliminate certain "Debtors Prison" practices in Texas municipal and Justice of the Peace courts related to indigence and Class C misdemeanors. (HB 50 by Corrections Committee Chairman James White is an identical bill.) The bill is on the agenda for Monday's CrimJur hearing.

In particular, HB 351 would eliminate the requirement that judges wait until a defendant has defaulted on payments before declaring them indigent, making them eligible for community service or to have their fees waived at the time of sentencing instead of waiting for them to fail.

As it happens, the most detailed explication of these problems comes from a Grits for Breakfast guest post by Ted Wood, formerly of the Office of Court Administration and now at the Harris County Public Defender Office. Read it for more background.

To Grits, this is a question of values. What does the court want? What is its purpose? Maximizing income, or justice? HB 351 reverses the priorities expressed in the current law, untying judges' hands and allowing them to dispense with cases more efficiently and responsibly.

If the defendant is indigent at the time of sentencing and there's no reasonable expectation they'll be able to pay, what's the point of fining them anyway and only accommodating their indigence when they default? At that point, a warrant is issued. So all of a sudden, someone the court knew couldn't pay when they were sentenced may be jailed for nonpayment if they don't come back before the judge to set up an arrangement that logic and common sense would dictate should have been done in the first place.

Basically current Texas law is designed to squeeze as much money as possible from indigent people before affording them the accommodation (via waiving fines or letting defendants work them off through community service) that the constitution and practicality require.

HB 351 isn't a major bill, but it's a really good one. Hope it passes.

Wednesday, March 01, 2017

Fake traffic stops, waiting on bail reform, and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused elsewhere:

Harris County to provide counsel to indigent at bail hearings
Big news: Harris County will soon launch a pilot program to place public defenders at bail hearings to represent indigent defendants, reported the Houston Chronicle. According to Jim Bethke of the Texas Indigent Defense Commission, currently only "Bexar County has a similar program - and that is tailored to offenders with mental-health conditions." Grits predicts the cost will be significantly offset by reduced incarceration costs at the jail. Besides, it's likely civil rights litigation would soon force the county to do this, anyway. Better to get in front of the curve on at least this one point.

Profiles in prosecutorial mercy
Sixteen Arlington cops gave up their police licenses to avoid criminal prosecution for faking traffic stops and falsifying paperwork to cover their loafing, according to the Fort Worth Star-Telegram. The allegedly falsified stops were "discovered when supervisors could not find accompanying dashcam video of the stops." For faking paperwork on traffic stops which never occurred, some were for a while accused by Tarrant County prosecutors of "tampering with a government record with intent to defraud." However, the officers were allowed to quit their jobs and permanently give up their peace officers' licenses in exchange for non-prosecution. That's a lenient but not inappropriate outcome. Grits' problem in such instances isn't so much that I believe punishment for lying, evidence-tampering cops should be harsher. It's that only police officers seem eligible for this sort of creative prosecution outcome aimed at protecting their reputations and avoiding a criminal record. Lots of other folks could use that sort of consideration from the system who never receive it.

Waiting for bail reform
Honestly, waiting for the bill to be filed implementing Texas Judicial Council bail recommendations has become excruciating. I hope this doesn't mean it's getting watered down behind the scenes. Nationally, the movement away from money bail is picking up steam.

Sheriff mum on jail suicides
A series of jail suicides in Orange County, including one over the weekend, has the county judge asking questions and the Sheriff refusing to answer. One hopes the Commission on Jail Standards will get to the bottom of it. If they don't watch it, the jail could become a poster child for reform legislation. Lt. Gov. Dan Patrick instructed the Senate Criminal Justice Committee to examine ways to prevent jail suicides as part of their preparation for the 85th session.

Alternative Facts, Tarrant DA edition
In overturning a child sexual assault conviction, the Second Texas Court of Appeals said prosecutors form the Tarrant DA “misrepresented some facts to the degree that they 'are not facts at all,'” reported the Fort Worth Star-Telegram. According to the opinion, “Some of the State’s facts are not based upon a plain reading of the record. Some of the emotionally-charged language employed by the State in its recitation does not appear in the record. Other statements of fact are actually misstatements of the evidence.”
Read more here: http://www.star-telegram.com/news/local/community/fort-worth/article134840789.html#storylink=cpy

Read more here: http://www.star-telegram.com/news/local/community/fort-worth/article134840789.html#storylink=cpy

Otherwise, how will the kids know it's wrong?
There is a bill making bestiality a criminal offense up at the first substantive House Criminal Jurisprudence Committee meeting of the year. Two problems with this: 1) Animal cruelty is already a crime, and 2) the suggested penalty for the offense (state jail felony) is greater than that for a domestic violence charge (Class A misdemeanor). So under this bill, defendants would be punished more harshly for f#@king their pets than beating their spouses. I know that people love their pets, but ... wow.

Closed Auditions
The stories coming out of the trial of two former San Antonio PD officers who put on an elaborate ruse to trick women into sex are really quite extraordinary. The officers posed as members of the vice unit (they were not) and got the women to sign bogus "bogus application form[s] to have sex in what she thought was an audition for an undercover sting operation," then made them drink and exercise before defrauding and coercing them into sex. An utterly bizarre tale.

Trumping federalism, driving crime victims underground
Grits' commentary on Monday wasn't the only voice this week wondering what became of Gov. Abbott's oft-touted federalist ideology in the Trumpian era. The Bexar County Sheriff authored a letter to the Governor questioning his  commitment to federalism. Declaring himself a proud Texan and firm supporter of the Tenth Amendment, the Sheriff declared he had "concerns about the Office of the Governor subjecting state and local officials to the dictates of the federal government." Meanwhile, this story out of the Rio Grande Valley validates the other concern raised in that Grits post: That crime and abuse victims may not report crime because they fear being handed over to immigration authorities. Grits predicts that law enforcement in areas with large Hispanic populations will grow to become important critics of Trumpian immigration policy. 

#Cut50 an aspirational goal TX won't meet soon

Today, the #Cut50 campaign is holding a multi-state action day, including a small event in Austin.

#Cut50 is a national proposal to reduce incarceration by 50 percent, which is a wildly ambitious suggestion by any measure. In Texas, for example, we've closed three prisons and are about to shutter more. But incarceration levels are down just 5.8 percent from their 2010 max.

Certainly, there are no proposals on the table right now to cut 50 percent of Texas' prison population, which is already declining thanks to falling crime and the Lege increasing property theft thresholds in 2015. While there are several smaller bills which could reduce populations slightly, perhaps the most impactful bill on imprisonment levels with a significant chance of passage this session is HB 2398 by Phil King, a Republican member of the Speaker's leadership team. That legislation would reduce penalties for low-level drug possession from a state jail felony to a Class A misdemeanor (though people would still pay higher, felony-level probation fees), while boosting penalties for (much less common) manufacturing/distribution charges to a third degree felony.

If it passes, HB 2398 should help cut Texas' incarceration levels, especially since drug cases have been driving felony case filings by Texas District Attorneys. (Go here to ask your state legislators to support this bill.)

But that legislation won't get us anywhere near 50 percent. Indeed, Grits has never been able to come up with a combination of policies I support which could cut more than 38-40 percent in Texas - still a huge number, but short of the aspirational #cut50 goal.

At this stage, it doesn't really matter. Big ships turn slowly. And for now, Grits' concern is more that the ship keep turning away from its prior path rather than to worry about whether its ultimate bearing leads to 20, 40, or 50 percent cuts. To my mind, each, incremental step must be worth taking on its own merits.

#Cut50 would be nice. For now, though, Grits will settle for #CutSome.

RELATED: From the Beaumont Enterprise, "'Lock 'em up' approach is costly, inefficient."