Special Reasonably Suspicious podcast: Conservative leaders promote #cjreform planks in Texas state GOP platform

Want to better understand the reasons why prominent conservatives in Texas are embracing justice-reform policies? You won't find a better primer on conservative justice-reform principles than Just Liberty's special, hour-long podcast aimed at promoting #cjreform planks in the party platform at the 2018 Texas state GOP convention. Check it out:

This special episode includes original music and interviews with:

• Dr. Derek Cohen, Director of Right on Crime
• John Baucum, Chairman Emeritus, Texas Young Republican Federation
• Charles Blain, Executive Director of the Restore Justice Project, Empower Texans
• Jason Isaac, President of the Conservative Coalition Research Institute
• Heather Fazio, Campaign for Responsible Marijuana Policy
• David Safavian, American Conservative Union Foundation

Enjoy!

Find a transcript of this special episode below the jump.

Transcript: Special episode of JustLiberty.org's Reasonably Suspicious podcast in support of criminal-justice reform planks in the Texas state Republican Party platform

Scott Henson: Howdy, folks. I'm Scott Henson, policy director at JustLiberty.org and creator of the blog Grits for Breakfast, and this is a special episode of Just Liberty's Reasonably Suspicious podcast, promoting criminal justice reform in the Republican Party of Texas platform. We'll be broadcasting throughout the GOP State Convention this week, so check us out any time or stop by and visit us at booth number 426 right across from Lieutenant Governor Dan Patrick, to learn more about why conservatives should support rightsizing Texas' largest-in-the-nation criminal-justice system.

Scott Henson: Conservatives support limited government, but even the staunchest conservative believes fighting crime and ensuring public safety are a core government function. Along with the Texas Young Republican Federation, Empower Texans, Right on Crime, and other key allies, Just Liberty is promoting an array of smart-on-crime justice resolutions to ensure public safety, reduce the footprint of government, promote freedom, and bring the GOP platform into the 21st century.

Scott Henson: We've got a great show for you today, discussing a host of issues being considered by the platform committee, and we've even produced a fun little jingle to remind everyone to support our platform work. Why don't' we give it a listen.

(singing)

Scott Henson: Let's start by talking about bail reform. The United States and the Philippines are the only nations on earth where the government still decides whether to jail a defendant pretrial based on whether or not they can afford to pay money. Other countries and increasingly many American states have shifted to a risk-assessment model that bases pretrial detention based on whether a defendant is likely to show up for court or re-offend upon release. The federal government stopped using money bail years ago.

Scott Henson: To make matters even more complicated, a federal judge in Harris County, Lee Rosenthal, who was a George W. Bush appointee, declared in a recent ruling that it was unconstitutional for Harris County to keep misdemeanor defendants in jail pretrial solely because they could not pay money. The 5th Circuit Court of Appeals agreed that the county's so-called bail schedule was unconstitutional.

Scott Henson: Most Texas counties use a similar bail schedule to the one now declared unconstitutional by Judge Rosenthal on the 5th Circuit, which leaves judges throughout the state in the lurch and places the issue squarely in the lap of the Texas Legislature when it convenes in 2019. To that end, numerous Republican Senate District Conventions passed a resolution calling on the Texas Legislature to ensure jurisdictions allow data about risk in making release decisions and set the, quote, "least restrictive release conditions necessary to preserve public safety and ensure defendants show up in court."

Scott Henson: Most reasonable people can agree that money bail is an increasingly outdated policy which, at this point, is almost an historical anachronism, but the bail industry is incredibly lucrative and bail bondsmen have launched a desperate last-ditch effort to oppose reform, even though it's mandated by the courts.

Scott Henson: Just Liberty asked some of Texas' sharpest conservative minds how the state should proceed in the wake of the Harris County litigation. Let's start with Dr. Derek Cohen, the director of the Right on Crime Coalition. I asked him what conservative values should inform decisions about bail reform in Texas, and here's how he replied.

Dr. Derek Cohen: Simply put, public safety, pure and simple. The current system, the legacy system, many people don't understand, but you in the state of Texas, unless you are arrested for being suspected of murder, you are given bail. It might be an incredibly high amount that's trying to be a proxy for arrest, but you will get an opportunity to make bail. The problem is when you base it just on somebody's personal finances, it has nothing to do with their actual risk, especially with the Harris County example. What if you have someone that's a really pronounced danger to society but is well off? That person is going to be back out on the street very quickly, and that is not safe for you, it's not safe for me.

Dr. Derek Cohen: On the other hand, you also have people who are great candidates for recognizance bonds. Basically, they are tied to the community, they're tied to church groups. They're not going anywhere. Why are we housing them at $60 a day in our jails? On both coming and going, bail reform needs to happen because we're not having a system that prioritizes public safety. We're not having a system that prioritizes fiscal responsibility. What we do have is a system that does benefit the status quo, and that is something we need to get away from.

Scott Henson: For a fiscal perspective on the problems with money bail, I turned to State Representative Jason Isaac from Dripping Springs, who is the new president of the Conservative Coalition Research Institute here in Texas. Let's hear what he had to say.

Jason Isaac: Yeah. We certainly do need to have some bail reform. In 1994, almost 33% of our jail population was comprised of pretrial detainees. That's a third of our jail population in '94. To me, that's absurd. That's way too high. Now, looking at 2016, it's almost 74% of our jail population are pretrial detainees. These are people that couldn't afford bail. Most of them pose no flight risk whatsoever, but they just couldn't afford bail.

Scott Henson: And, in fact, are presumed innocent legally-

Jason Isaac: Correct. Yeah, were presumed to have that innocence, but yet, serving jail time at a cost to Texas taxpayers. These 41,000 pretrial detainees in 2016 cost our counties over $900 million, almost a billion dollars, tax dollars, in pretrial detainees. We absolutely need bail reform on their flight risk. Not just a dollar figure for everyone, because that's going to hurt the least among us more than anyone else. People can't afford to pay their bail, they lose their jobs. Again, it gets back into economic development policy for me, limited government policy, freedom policy for me. Our Constitution, above all, is being abused by the bail system that we have in place right now with, again, over 41,000 pretrial detainees in 2016.

Jason Isaac: Wouldn't it be nice if we could get our government to be smaller and do less for us, but people complain about their property taxes rising and look at the bill that those counties, which is one of the property taxes that we all pay, $900 million, almost a billion dollars. It probably is a billion now here in 2018.

Scott Henson: A billion dollars per year sounds like a lot of money but is probably an underestimate. As it turns out, defendants are more likely to be convicted and more likely to be sentenced to incarceration as punishment the longer they remain in jail pretrial numerous studies have shown. The longer defendants sit in the county jail pretrial, the more likely it is the government will eventually need to pay for a prison bed to house them. That's especially true for nonviolent drug or property offenders, who make up the vast majority of people cycling through Texas jails.

Scott Henson: The bail bond industry has been spreading propaganda about risk assessments and bail reform. Keep in mind this is essentially a parasitic industry profiteering off government function, sort of like the toll road industry or red light camera manufacturers. The bail bond industry loves to claim that the services of bounty hunters are free to the taxpayers. What they don't say is that overwhelmingly most bail jumpers are caught by taxpayer-funded police officers, not bounty hunters. What's more, when a defendant jumps bail and police officers must track them down, bail bondsmen almost never have to pay. It's a racket skewed more toward the interest of the bail bond industry than the taxpayers, and that must stop.

Scott Henson: The Professional Bondsmen of Texas, who themselves have a booth at the State GOP Convention, sent out a letter to members of the Platform Committee last week, claiming that bail reform is a socialist plot by George Soros that will put the public at risk. But as Dr. Derek Cohen from Right on Crime mentioned before, the biggest reason to do bail reform is public safety.

Scott Henson: Consider the case of millionaire real estate tycoon Robert Durst, who murdered his neighbor, cut off his head, and dumped the body parts into Galveston Bay. Because even murderers are entitled to bail in Texas, he had a bond set based on one of these bail schedules of $250,000, which he promptly paid and then fled town. It took years to bring him to justice. By the way, watch the documentary The Jinx if you want to learn more about the case.

Scott Henson: Wouldn't we all be safer if release decisions about the Robert Dursts of the world were based on an assessment of their risk to society rather than how much money they can pay? It only makes sense. The Public Policy Research Institute out of Texas A&M analyzed outcomes in two counties, Tarrant and Travis, so that's Fort Worth and Austin, the former of which relies on money bail from pretrial release decisions with Travis County relying on risk assessment tool.

Scott Henson: According to A&M's findings, quote, "This study finds that in the financial release system where risk is not considered, 20% more crimes and 12% more violent crimes are committed by dangerous people released on bond." End quote. So, more crimes and more violent crimes are committed by people released under the money bail system.

Scott Henson: The bail bondsmen's letter hypes up a handful of anecdotes, some of them from other states, but when Texas A&M studied the big picture, they found more violent crimes, including murders, rapes, robberies, and assaults, were committed by defendants released on money bail. Anecdotes do not change that fact, so feel confident supporting the GOP platform plank on use of risk assessments instead of money bail.

Scott Henson: This is sound, conservative policy promoting both liberty and public safety. The courts have forced Texas to change how we do things, and now it's up to conservatives to make sure it happens in a responsible way, protecting both constitutional rights and public safety, not either/or. There's nothing conservative about letting rich guys like Robert Durst buy their way out of justice. Texas Republicans should take the lead on bail reform even if the bail bond industry doesn't like it.

Scott Henson: Drop by Just Liberty's table number 426 at the State GOP Convention if you want to learn more about bail reform. We'd love to visit with you.

Scott Henson: One of Just Liberty's most committed allies in the campaign to install criminal justice reform into the party platform has been the Texas Young Republican Federation, which endorsed all 16 of the resolutions Just Liberty brought forward and has helped us promote them in local precincts and senate district conventions around the state.

Scott Henson: I sat down recently with John Baucum, the chairman emeritus of Texas Young Republicans, to ask him why his group has embraced criminal justice reform so ardently. Let's hear what he had to say.

John Baucum: Yeah. Overall, I think Young Republicans are very inclined to support criminal justice reform pretty much across the board. We've had surveys over the last couple of years where we polled a number of different policy topics, and all of them have a broad support amongst young Republicans. I think we're seeing the Republican Party as a whole, but specifically where the youth move away from the tough-on-crime approach and embracing a more smart-on-crime approach. We want to focus on people that are dangerous, people that are committing crimes against property, people that are committing violent crimes. Let's go after those individuals and not the people whose behavior maybe we just don't agree with.

Scott Henson: Y'all endorsed a wide range of criminal justice reforms to go into the party platform this year. Tell me some of the highlights of what y'all have endorsed and then why you went this route.

John Baucum: Yeah. We've got a great network of Young Republicans all across the state. Many of them are involved in their local parties as precinct chairs or were delegates to their precinct convention and took this package of resolutions from the very beginning of the platform process, visiting with their fellow delegates at their precinct convention, pushing some of those reforms up through there, then to their senatorial conventions. Then a lot of them have passed now and will have an opportunity to be included in the state platform.

John Baucum: Some of the highlights from that are eliminating civil asset forfeiture in Texas, also looking at some bail reform to allow nonviolent individuals to have more of a risk-based assessment on their release rather than just the money bail system that we have currently. Then also we're looking at the decriminalization of small amounts of possession of marijuana, so making it a civil penalty rather than the current Class B misdemeanor, which can include jail time and a fine and then, unfortunately, a lifelong criminal record as well.

Scott Henson: Talk to me just a little bit about some of the values underlying your justice reform agenda. What is it that motivates this thing?

John Baucum: Yeah. Well, as Republicans, we really are the party of limited government, individual liberty, and personal responsibility. We see a lot of these issues going towards the fact of maybe government is criminalizing too many things and sentencing people too harshly for certain behaviors. We really want to see that scaled back and taking a smarter approach, looking from an individual level of what types of policies can be better implemented to, one, protect the public and then also help people from getting saddled with needless criminal records that kind of perpetuate a cycle within the system and then lead to uncertainty and public housing, employment, job security, education, all of those type of things that'll make them a better member of our society and a more upstanding individual as a whole.

Scott Henson: Next up, Just Liberty and our allies are supporting a platform resolution to eliminate arrest for most Class C misdemeanors, the lowest level of criminal offense for which the punishment is a fine, not jail time, like with traffic tickets or municipal ordinances. The only exception would be where the officer thinks an arrest is necessary to prevent family violence.

Scott Henson: The legislature passed an essentially similar measure way back in 2001 after the U.S. Supreme Court ruled a Texas police officer was within his rights to arrest Gail Atwater, a soccer mom, with her kids in the car pulled over on a seat belt violation. Governor Rick Perry vetoed that bipartisan legislation, but with a new governor in office and the issue freshly reframed in light of recent events, now is an ideal time to revisit it.

Scott Henson: State Representative James White, the Republican chairman of the Texas House Corrections Committee, and Republican State Senator Konni Burton of Tarrant County, were the lead GOP advocates for this small government policy during the 2017 legislative session. Although it didn't pass, a remarkable bipartisan coalition emerged around this idea that could bring it to fruition next year.

Scott Henson: I sat down recently with Charles Blain, the executive director of Empower Texans Restore Justice Project, to ask why this platform plank is important. Here's how he responded.

Charles Blain: Yeah. This one kind of shocked me. I'm originally from New Jersey, and I moved here five years ago. When I started doing some of the criminal justice reform stuff and started doing researching and came across ... I guess I would say, and correct me if I'm wrong, but I guess the original case that kind of spurred this movement for reform in this area was Gail Atwater when she was stopped and arrested for her children not having a seat belt on in the car.

Charles Blain: I started doing some research, and it kind of was one that just really stuck to me personally. I testified on this last session because I'm just thinking it's such an issue that affects a lot of people of the lower socioeconomic standard. If you're talking about somebody who has a busted tail light or somebody who has a expired registration or something along those lines and they can't afford to get that fixed, the fact that they can be arrested, whether the frequency of them being arrested or not shouldn't come into play, but the fact that they can be arrested for something like that is absurd.

Charles Blain: During that time two years ago, I think it was Texas Criminal Justice Coalition did a study for Harris County and said something like 11% of arrests that they studied were for these Class C misdemeanors.

Scott Henson: That's right, countywide.

Charles Blain: That's just absurd that we're spending the cost to arrest and keep these people not in prison, but in jail for whatever reason they can't bail themselves out. We're putting them in jail. We're arresting them and going through the process, taking cops off the street, wasting taxpayer dollars and all this stuff because someone has a Class C misdemeanor or violation. I just think it's absolutely crazy and we really should do away with these arrests.

Charles Blain: As we were talking before offline, at least having every department having a clear and outlined policy would be great, but we should really do away with it and just kind of completely move on. I know that during the hearing on this bill, the House hearing, there were a number of law enforcement officers who showed up and testified and spoke about it, and the argument was that without this ability, they would not be able to find bigger crimes that they were going after.

Charles Blain: Some people were saying they couldn't find a potential car burglar if they couldn't pull them over for not using a signal light when he made a left. But when you run into things like that, you're always going to have these shoulda/coulda/woulda/maybe-if situations. When it comes down to it, you're bringing more people who should otherwise not be under arrest for something so simple into the system for no reason.

Scott Henson: That was a strange hearing, to be honest. The thing where the police officers claimed to have some sort of spidey sense, where even though they had no evidence that the person had committed any crime beyond the Class C misdemeanor that they wanted to give them a ticket for, somehow they just knew.

Charles Blain: Right.

Scott Henson: They had the sort of spidey sense tell them that this person was guilty of something worse, so I really should go ahead and arrest him. Well, the idea that that's happening for 11% of all arrests in Harris County is just crazy. Right? Those are not people who all had some greater-

Charles Blain: Right.

Scott Henson: ... risk.

Charles Blain: Yeah. These people, they're not all out there committing these nefarious activities that we need to arrest them because of something so insignificant. And it should concern everyone because it really could happen to anybody. That's the scary part, is that you could fail to signal when you're turning and next thing you know, you could be kind of wrapped up in this entire process. (singing)

Scott Henson: This issue of jailing people for Class C misdemeanors or for that matter, jailing people because they couldn't pay traffic ticket fines or other criminal justice debt has created the equivalent of 21st century debtors prisons. Too often, the government treats traffic tickets as a revenue source instead of a means to affect public safety, and that's where we get into trouble.

Scott Henson: Here at Just Liberty, we consider music the universal language and often the best way to get across a complicated message to many different audiences, so we created a short little song to promote the need for Texas and really every state in the union to stop using local jails as debtors prisons for people with a traffic ticket debt. Why don't we give it a listen.

Scott Henson: I asked Jason Isaac, the new president of the Conservative Coalition Research Institute and a state representative from Dripping Springs, for his views on the debtors prison problem and criminal justice debt.

Jason Isaac: It's unfortunate, and a lot of our urban policies are pushing the least among us further and further out because the rising cost of living in our urban centers is just increasing at a rate that the least among us can't afford to live in those urban areas, so they're moving out into the suburbs and they're moving out to rural areas where they can actually afford to live. They have longer commutes than people that may live in urban areas closer to work. Then they have to deal with toll roads, so they've got a higher cost of living. A higher portion of their income is spent on transportation. God forbid they make a mistake and get a speeding ticket and then can't afford to pay it. Maybe they need to get on a payment plan and the court doesn't agree with that payment plan, and so they get put in jail to pay their ticket.

Jason Isaac: To me, it's a similar policy to toll roads and the Driver Responsibility Program and those debtors prisons for people that can't afford to pay their speeding tickets. We keep driving up the cost on the least among us and wondering why the gap is getting larger and larger between those in the lower class and the middle class and even those in the upper class. The gaps are spreading significantly. Unfortunately, it's my opinion, government is a cause of a lot of that. We need to get out of the way, have limited government.

Jason Isaac: These prisons where they're not paying their tickets, we've got to find another solution. Get them on payment plans. Do not jail them. We shouldn't have this policy. Chairman White, I hope he re-files his bill next legislative session, is successful in getting that through the House and the Senate and getting the governor to sign that so that we can let people work, because it's really tough to make a living while you're in jail to pay off some of these fines.

Jason Isaac: Much like our Driver Responsibility Program, which I'll be advocating at the Republican Convention to put stronger language in the platform to eliminate the Driver Responsibility Program, where if you or I get a ticket, and maybe we've just got a bad habit or bad luck and we get a fine, you pay that fine and you served your time, if you will, it should be done. But with the Driver Responsibility Program, you got to continue to pay. You've got to continue to pay and you continue to get punished for one action, and that's going to continue to hurt the least among us more than anyone else.

Jason Isaac: We need to get rid of the Driver Responsibility Program as well as these debtors prisons for people that can't afford to pay their speeding tickets or other tickets, traffic tickets. Let them work that off slowly but surely. We can't afford to continue to put them in jail. First, it's costing our taxpayers money to jail them and they're not contributing to economic development in the state. With the low employment that we have, we need as many people working as possible.

Scott Henson: Speaking of criminal justice debt people can't get out of, let's talk for a moment about the so-called Driver Responsibility Surcharge that Representative Isaac mentioned. This little-known program sounds good. Who doesn't like driver responsibility? But in reality, that's an Orwellian name masking a vile and iniquitous government program whose main function is to squeeze money out of poor people.

Scott Henson: Here's how it works. Most people understand when they get a traffic ticket they have to pay a fine, but for certain traffic offenses that mainly affect poor people, mainly failure to maintain auto insurance and driving with an invalid license, offenders get an additional punishment, the so-called Driver Responsibility Surcharge that they must pay for each of the next three years. If they don't, their driver's licenses are suspended. DWI offenders also must pay a surcharge. It's a much larger one.

Scott Henson: More than two million people have had their driver's licenses suspended under this program, and around 1.3 million have never been able to get them back, with drivers in some cases going many years without a license as a result. Because Texas has little public transportation and our cities aren't built for pedestrians, most people must drive in order to get to work or to take the kids to school, to get their groceries, so they get another round of no driver's license, no insurance tickets, and the surcharges racked up over and over. Half of the money raised from surcharges goes to the general revenue fund, while the other half goes to fund trauma hospitals, making up a small fraction of their overall budgets.

Scott Henson: I asked Dr. Derek Cohen, director of the Right on Crime Coalition, how legislators should address the program, and here was his response.

Dr. Derek Cohen: Back when the Driver Responsibility Program was created, there was a budget shortfall, specifically in both transportation and trauma care, the 5111 account, that dedicated account that goes to unfunded trauma care. You mentioned how the surcharge actually works. What happens is people pay into the system. Part of it gets retained by the local municipality, the collecting agency. The rest goes to the 5111 account and then it's disbursed from there.

Dr. Derek Cohen: Now the problem that that bakes in is now you have the recipients of the unfunded trauma care disbursements, the hospitals, oftentimes rural ones as well, basically are now addicted to that money. But the problem is collections are going down. Convictions are going down. They're basically going to the same well that's drying up. Our position is simply if this is an issue that you feel needs to be attended to by the public fisc, it needs to be done through general appropriation because this essentially needs to rely upon bad behavior, behavior that we don't want to happen. We need to rely upon that to maintain stabilities in the funding for this. That's just a ridiculous way of looking at things, because that's not how you address a government spending need if that's what you feel this is.

Dr. Derek Cohen: The other effect of that, individual aside, is it starts a cycle of, basically a cycle of problems. You get hit with the invalid license or failure to maintain insurance and then get hit with the surcharge on top of that. How are you going to pay the licensing fees or your insurance bill to be able to get back to current? It just creates this perpetuating problem. I think that there can be a discussion on appropriate ways to handle that if that money was going to be directly one-for-one replaced, but I don't think that basically keeping a necessity, as some would deem it, reliant on a very dynamic and dithering source of income is a good idea from government standpoint.

Scott Henson: There are more than a million people who've lost their driver's licenses as a result of this surcharge. There are only about 15 million adult drivers in the whole state, so that's a huge number of people that come into this chronic problem.

Dr. Derek Cohen: With that snowball rolling downhill and more people being uninsured as a result of this, that puts you and me at risk. If we get hit by one of these individuals, we might not be able to collect a judgment on that simply because of the lack or failure to maintain insurance.

Scott Henson: Finally, I recently caught up with David Safavian from the American Conservative Union Foundation out of Washington, D.C., and he explained why his organization has embraced reform in debtors prison practices.

David Safavian: Well, first, I think everybody in this room recognizes or has seen one of their friends get pulled over and being hauled away in handcuffs for failing to pay a traffic ticket. What I would say is this category really comes under our fiscal responsibility and why is the use of government resources kind of philosophy. Yes, we have to hold people accountable for failing to do things big and small, and owning up to traffic infractions, for example, is one of those.

David Safavian: But what is the cost not just to the individual but to the agency in the government to take the time, to take a cop off the street, escort somebody back, run them through their fingerprinting and all of the processing, and then hold that person in jail for something that is by any measure ... By no measure is it a public safety threat. We question why we would criminalize these things, these types of activities, non-payment of fines and fees. It creates a debtors prison, to be candid, and there are other ways to address it, still holding people accountable, without wasting money.

David Safavian: Then, the other part I would say is this. We talk about it or we look at it from the spending of government resources perspective. Why would we want to put an indelible mark on somebody's record that they have to live with for the rest of their lives that could, in many cases, put them at a disadvantage to finding meaningful work, that could harm their prospects for going to college because they did something stupid like didn't pay a traffic ticket? You have an overarching government on one side that's wasting resources, and you have somebody who makes mistakes and needs to own up to them and do the right thing on the other side that is being permanently harmed on the other. It just makes no sense.

Scott Henson: Coming up, stay tuned for discussions of proposed GOP platform planks on marijuana policy, police use of force, and reforming asset forfeiture laws. But first, here's a quick word from Just Liberty.

Scott Henson: Hi. This is Scott Henson, policy director at Just Liberty and co-host of the Reasonably Suspicious podcast. You're listening to Just Liberty's special podcast prepared for the Republican Party of Texas State Convention to promote criminal justice reform in the party platform. We're at booth number 426. If you're at the convention, please stop by and subscribe to the Reasonably Suspicious podcast on iTunes, Google Play, or SoundCloud to keep up with the very latest regarding criminal justice politics and policy in Texas. Thanks for listening.

Scott Henson: In 2017, the Texas Legislature considered HB 81, which would have punished marijuana possession with a civil penalty instead of a criminal charge. The bill was scheduled for a floor vote at the end of session, but jutting by Democrats designed to kill Republican bills meant the House never got to vote on this landmark legislation. Just Liberty created a little song to promote the bill, which was heard on radio ads of conservative talk radio and by more than 66,000 people via social media. In case you didn't hear it last year, here it is again, an oldie but a goodie.

(singing)

Scott Henson: In recent years, nine states have outright legalized recreational use of marijuana and more than three dozen states have approved some form of medical marijuana use. In states which have legalized, the industry has become a significant new employer and source of taxation revenue for the government. Even in Texas, polls show a majority of Republicans support pot legalization, but nearly all of the strong opposition in polls continues to come from mostly older Republicans, which in the past has put GOP politicians in a difficult position.

Scott Henson: That's why the Texas Legislature has mostly considered measures like HB 81, which falls short of full legalization. Still, times are changing. Recently, I sat down with Heather Fazio, a long-time conservative activist and an organizer for the Coalition for Responsible Marijuana Policy to get her take on what's so different about the current terms of debate and why something like HB 81 might finally pass in Texas sooner than later.

Heather Fazio: Well, our current marijuana policy is that for even just a small amount of marijuana, the penalty is up to six months in jail, $2,000 worth of fines, and what's the worst part about it is that upon conviction, a person carries that criminal record for life, and it comes along with an array of collateral consequences that include hindered access to education, employment, housing. Your driver's license is suspended for six months. Your right to self-defense, your license to carry is suspended for five years-

Scott Henson: Wow.

Heather Fazio: ... just for a tiny amount of marijuana upon conviction, and that's a significant problem that we face because between 60 and 70,000 Texans are arrested annually for simple possession. It's at 98% of all marijuana arrests are for possession of this plant that we know to be objectively safer than alcohol, tobacco, and quite frankly, many of the prescription drugs that patients are prescribed every single day in this country and people are looking for an alternative to these bad policies.

Heather Fazio: What we saw in Chairman Moody was a leader on an issue that really needed to take a big step in making a small change in the law. A civil penalty for small amounts of marijuana, one ounce or less, would have helped to keep so many people out of the criminal justice system that shouldn't have been there. Stop clogging our courts, stop overburdening our prosecutors and distracting our law enforcement officers. His bill would have reduced the penalty to be a simple citation similar to a traffic ticket rather than the criminal penalties and the collateral consequences that come along with a criminal conviction.

Heather Fazio: That bill did make it out of committee. It was scheduled for a vote on the House floor, but, unfortunately, we were beat by the clock last session, but we see support for these kinds of policies mounting now more than ever and it will continue to do so as we make our way toward the 2019 legislative session.

Scott Henson: State Representative Jason Isaac, the new president of the Conservative Coalition Research Institute, was a co-author of HB 81 during the 2017 legislative session and a strong public supporter of medical marijuana reform. I asked him how he explained these reforms to a conservative constituency.

Jason Isaac: Well, let's see. I'm going to start out by saying I don't want to talk about marijuana policy. I want to talk about economic development policy. I want to talk about freedom policy. I want to talk about limited government policy. It's interesting because in 2015, the governor signed into law the Texas Compassionate Use Program. The Texas Compassionate Use Act was signed into law, which allowed families with children or patients with intractable epilepsy to use cannabidiol. Cannabidiol is a derivative of marijuana.

Jason Isaac: That was a first bill signing. That was my third term in office and the first bill signing I went to.

Scott Henson: Congratulations.

Jason Isaac: Thank you. Someone asked me, "Jason, why'd you go to that bill signing?" I told that person right afterwards, I said, "Do you realize that Texans have more freedom right now than they did five minutes ago?" And because patients didn't have the access to cannabidiol, again, a derivative of a plant in an oil form or a vapor form that calms neurological activity in the brain and helps those people that are having seizures. They didn't have that access before 2015. Actually, didn't have it in '16, didn't have it in '17.

Jason Isaac: Now, almost three years later, the bill is in effect and we have licensed dispensaries in the state of Texas that are providing cannabidiol to people with intractable epilepsy. It's very narrow in focus. I think it needs to expand in focus, but we do have more freedom, and this is an oil that is recommended or prescribed by a doctor. Currently, there's only a little over 30 doctors in the state of Texas that are willing to take the risk and prescribe cannabidiol, but they're doing so. Patients and families now have more freedom than they did before 2015 and before this law was put into place. To me, it's not about marijuana policy. It's about limited government, freedom policy.

Jason Isaac: We talk about possession and people have a small amount of marijuana in their possession, and they're getting charged as criminals. You have some municipalities, San Antonio, Austin, Houston, other municipalities that just will not prosecute them. They're not charging them, so people are just openly and freely walking down the street smoking marijuana. They're violating the law. They're not being prosecuted.

Jason Isaac: We have these sanctuary policies because our laws are not being enforced, and this is one that I believe too because the penalty is stricter and outweighs the crime itself. Keep in mind I represent Texas State University in San Marcos, Texas, and you've got 30,000 students that are there, and if one of them makes a bad decision ... I've got a specific example of a student at Texas State University in his early 20s made a bad decision, got caught with a joint, and then was charged and prosecuted.

Jason Isaac: Now, when he goes to get a job, guess what shows up on a background check. Well, he wanted to volunteer coach in a lacrosse organization that I'm involved with, and guess what came back on his background check. Five years prior, and now he can't even get a job volunteering as a lacrosse coach because he wants to work with youth and impart some knowledge that he has. Fortunately, it got appealed to our league and we said, "This is fine. This is the only thing on his background check. He made a mistake."

Jason Isaac: This is someone who we subsidize his public education. Then we subsidize his higher education at Texas State. Makes a mistake and now on his background check shows up as a criminal because he got caught with a small amount of marijuana. This charge is hurting our economic development. It's a poor return on our investment. We need to change the policies that ... We're not making it legal in the state of Texas. We're going to continue to enforce the laws. This is going to be changed from a classification so this person is not branded a criminal. It's similar to getting a parking ticket. I think in the Moody Bill that I joint authored, I believe is a $500 fine for possession, which is a pretty hefty fine.

Scott Henson: Right.

Jason Isaac: So, you got to be careful. If this does pass and the pendulum swings the other side, are we going to see an over-enforcement where it's a cash cow for local municipalities in college towns or here in Austin where they're constantly just writing people tickets? We need to be careful of that as well.

Scott Henson: Some version of the Civil Penalties Bill will be filed in the 2019 Texas Legislative session, so If you see your own state legislator or senator before then, please remember to tell them you hope they’ll support it. 2019 could be the year. (singing)

Scott Henson: Too many marijuana arrests are a problem, but almost no one goes to prison just for pot. People addicted to harder drugs, however, commit a felony in Texas just by possessing less than a gram of a controlled substance, less than the amount of sweetener in a Sweet'n Low packet. A recent poll conducted among GOP primary voters found that 76% supported reducing penalties from a felony to a misdemeanor for possession of small amounts of drugs.

Scott Henson: I recently asked David Safavian of American Conservative Union Foundation what is the Conservative position when it comes to these matters. Let's talk about drugs and drug policy. Texas has seen declining crime in the past few years and the past few decades, really, two decades. We've seen pretty consistently decline in crime, decline in cases filed across the board, and the only new expanded source of new cases, increased cases has been drug possession. This is really the only growth sector remaining in the criminal justice field in Texas. Everything else is declining pretty radically.

Scott Henson: Talk to us about whether we should make low-level drug possession a felony, whether that should be an offense someone goes to prison for, and in Texas, one of the proposals has been if we reduced from felony to a misdemeanor, we would be able to use some of the savings to pay for treatment, for additional types of services and monitoring that might actually address the addiction instead of simply locking them up.

Scott Henson: Talk to us about, again, the Conservative viewpoint on what should we do with that drug policy. Why is it going a felony problem?

David Safavian: Well, one of the things that we as conservatives really push for when we deal with government is looking at the results that the government delivers or lack thereof. If you consider how punishing low-level, nonviolent drug offenders with a felony, what result that delivers. It is a mark on their record that they can never erase, which hurts their long-term ability to get employed, to go to college, to earn a living, and to raise a family. A felony conviction for anything, no matter what anybody really thinks, is an economic death penalty.

Scott Henson: Right.

David Safavian: It makes it nearly impossible to get hired. There are about 43,000 different regulations that bar felons from engaging in different activities, commercial, business, employment, education. Why we would do permanent harm to a person who has been convicted of a nonviolent, low-level drug offense makes no sense to me, number one.

David Safavian: Number two, the cost of incarcerating these people for such a long period of time, not to mention the lost revenue, the increased governmental assistance that would be required because they can't find work afterwards. Those costs are enormous. And you and I and the taxpayers of Texas all have to shoulder those for what result? The result is that low-level drug offenders go into prison. They come out of prison. If they have an addiction issue, they are untreated and when you put a nonviolent offender with a violent offender, who is going to come out looking more like the other? We are putting nonviolent people into prisons, making them more likely to become more serious, hardened criminals, which costs the system even more.

David Safavian: I think that's a long-winded way of saying we're not getting a whole hell of a lot for our money when we arrest and incarcerate for long periods of time [inaudible 00:46:24].

Scott Henson: Let's face it, it wasn't too many years ago that the sorts of opinions being expressed here by the American Conservative Union or the Texas Young Republican Federation might have been mocked at the GOP State Convention as soft on crime, but today, conservative Republicans frequently have emerged in Texas as leading reform voices. I asked Dr. Derek Cohen, the director of Right on Crime, what accounts for this transformation, and he and I had an interesting conversation about the history of mass incarceration in Texas and the modern 21st century effort to roll it back. Let's give it a listen.

Dr. Derek Cohen: A lot of people see this as a sea change in the conservative philosophy. I actually do not. If you look at how we got here, in the most abstract sense, we had rising crime through the '50s, '60s, '70s. The crime rate just kept ticking up, up, up, and up. If you look at criminology, how we would actually address this crime, we were running out of ... Criminology in and of itself as a corpus of social science, if we can call it that, didn't have any answers for it. The theories didn't even internally agree with each other, which only left us with the policy recommendation of, well, we can't rehabilitate something we don't understand, so I guess we just incarcerate them. That really became the only tool in the toolbox.

Dr. Derek Cohen: From there, we started getting a little, I would say, enjoying the ancillary benefits of incarceration, the localized economic development or [inaudible 00:47:59] the political benefits of it. And we never once stopped to think, oh, this doesn't seem to ... We've been increasing the incarceration rates for however many decades and crime has just followed it in lock step. Where the theory would be if we were able to deter, if we were able to get people to not commit crimes simply on the dint of us throwing you in jail or prison because of it, we should have been able to build our way out of the crime spike. That's something that not only did we never do, we never even went back and took account for that.

Dr. Derek Cohen: You basically get to a point where conservatives, who I do think have the moral authority on issues of fiscal responsibility and of public safety, says, look, we are, if not causally, this is correlating with the worst public safety outcomes. We are not getting our bang for our buck what we're spending. We are getting entirely too much government bloat on this, whether it's all the way down to the local district attorney or up through the state apparatus. We're not getting our conservative values meted out through this particular system.

Dr. Derek Cohen: Now what can we do about it? Now that's when, obviously, the reality on the ground was, I would say, more pressing from the fiscal standpoint here in Texas, but that caused people to really take a step back, evaluate their priors, take a look at ways we've been doing things and say, "This isn't working, guys." So, 2005 some very minor reforms, 2007 much more significant reforms, and then every subsequent session there has been a body of reform.

Dr. Derek Cohen: I think that that's really a testament to ... Nothing attribute to better than good leadership on the issue. It could have been in Texas, when we started to reform in 2007. It could have been that Rick Perry just didn't want to engage in that because it was too politically risky, but he has a state to run. He has a state to run, and he actually took a look at the system and said, "You know what? These are good for the state. Supported 2007 reforms, many since, and now he's a Right on Crime signatory and I think there's no looking back once you actually can see the benefits of this.

Scott Henson: Right. I'm glad you mentioned that history, because I think that there's a misconception a lot of times that mass incarceration as we know it today was about conservatives or Republicans being excessively tough on crime, and in Texas it was really the opposite. In Texas, our politicians were responding in the late '80s to federal litigation that William Wayne Justice had sort of held over our prison system for years and years and years. It's really one of the reasons that Texans are rebellious against federal judicial authority to this day.

Dr. Derek Cohen: One of the reasons.

Scott Henson: It is, but for some, he held onto the prison system for a couple of decades almost by the time it was all done and was controlling it through the federal judiciary. There was a demand that we reduce overcrowding and Bill Clements had expanded by about 12,000 beds, and those were coming online when Ann Richards first took office.

Scott Henson: But it was a Democrat Governor Ann Richards who said, "No. We're going to enjoy some of those ancillary political benefits," that you mentioned, "and we're going to look at prisons not just as a way to punish or better yet, rehabilitate offenders, but as a jobs program. We're afraid we're going to start losing elections as Democrats out here in the rural areas, and so, hey, we're going to give you jobs. We're going to put prisons out here in Dalhart, where you're hundreds of miles away from everybody who's actually going to prison so their families can never visit, but we're going to put a prison out there as far away from anything as you could possibly be."

Scott Henson: Rural Texas basically said, thank you, we'll take the jobs, but rejected Ann Richards and the Democrats. Once that prison system was completely built out, what you're describing began to occur. Rick Perry looked up in 2003 and said, "Well, I don't want to build four new prisons. I don't care if that's what your projections say. Then, the Chairman of Corrections Ray Allen, his original bill would have reduced penalties for low-level drug possession. He ended up mandating probation on the first offense. That was our first, okay, we're not going to build prisons. We're going to divert. We're going to find alternatives in 2005 and 2007 you described, probation reform measures that have been praised rightfully nationally as really a model of bipartisan collaboration and conservative leadership on criminal justice reform.

Scott Henson: And I think our Republican Party in Texas deserves a lot of credit for managing a problem whose origins really were big government liberals who thought that government could solve everything. Oh, there's a crime problem. Well, we'll just lock them up. We'll just take away their liberty and that'll be how we'll solve every last problem from someone doing drugs to someone fishing in the wrong oyster bed. We're going to use the same hammer.

Scott Henson: Talk to me a little bit about how having to manage a system that big government liberalism created has really created these conservative solutions generating out of Texas.

Dr. Derek Cohen: Right. That's as good of a 30,000-foot summation as anyone could offer because that was the political reality. In Texas, there's a lot of ... I would say folks here ... I've spent a lot of time in a lot of other places in the country, but I think folks here understand intrinsically that government is the answer to very few of the problems, and even for those that it's an adequate answer for, it tends to have ... Its side effects may include yada yada yada.

Dr. Derek Cohen: The idea that we can incarcerate our way out of crime, that we can incarcerate our way into economic development is one that just ... It's so mindbogglingly absent from any sort of empirical evidence that I think when we look back and take stock of everything, we understood that our priors fell apart. Because simply put, like I said, we had decades where punishments were getting stiffer, where more people were going to prison or more prosecutions were happening, and that crime rate just went around lockstep right with it.

Dr. Derek Cohen: Not only that, but when we say, okay ... You mentioned the Estelle decision from the '80s. Basically, when we said, okay, we'll even try to reduce crowding by building more beds, the crowding had nothing to do with whether or not the system itself was successful. It made our system more expensive, I can say that much, but it didn't make it more successful. Our recidivism rates were through the roof. There are elements of today's system. Even post-reforms our recidivism rates are through the roof, and that's something that we're looking at addressing in 2019.

Dr. Derek Cohen: But as it stands, a lot of folks ... And conservatives are at least partly to ... We're partly to blame because, again, we didn't apply our own Burkean ethics in this. We didn't apply our incremental reform, restraints and post-doc analysis. We didn't apply that to this particular problem or to our purported solutions. We had something that gave us a couple of feel-goods and we just ran with it without actually asking is this accomplishing what we wanted to do.

Dr. Derek Cohen: If you look at another thing from the conservative, certainly there's a liberty component here, certainly there's a fiscal responsibility component. One thing that a lot of conservatives now are waking up to, especially social conservatives and those deeply steeped in faith are realizing that there is a human component to this as well. There have been conservative prison ministries since back in the '70s. The work of Chuck Colson's almost synonymous with it now.

Dr. Derek Cohen: People are seeing that even when somebody makes ... I don't like to say the term makes a mistake because it sounds like you're lessening, especially if there was a victim, that you're lessening the moral opprobrium of it, but when somebody commits a crime, when somebody offends, that does not forfeit that person's human dignity. They do need to get punished, absolutely, and a lot of the people that go to prison need to go to prison, but once they're in prison, we need to do our best to rehabilitate them, because 95% of them are getting out. They're moving into our neighborhoods. We need to make sure that they're rehabilitated not only for the public safety component but also for the human dignity component as well.

Scott Henson: By the way, all the songs and instrumentals you hear on this and every Reasonably Suspicious podcast from Just Liberty are original music produced and performed by Austin guitarist Gabe Rhodes and an all-star crew of Texas musicians. Since Dr. Cohen and I were talking about mass incarceration, this is a good opportunity to introduce you to one last original tune that Just Liberty is using to brand all our efforts to promote reduced incarceration and additional prison closures in Texas. This one's a little different. It's called Stop the Train and Malford Milligan performs the lead vocals. Gabe Rhodes and percussion guru Dony Wynn are responsible for the music. I hope you like it.

(singing)

Scott Henson: All right. I hope by the end of the upcoming legislative session that song is burned into everyone's memory and you all think about closing prisons every time you hear it.

Scott Henson: Now, let's turn our attention to policing issues, including conservative responses to examples of overreach by law enforcement. A proposed new plank to the state GOP platform would require local law enforcement to report use of force incidents whenever a member of the public or a police officer is injured.

Scott Henson: I asked Charles Blain from Empower Texans Restore Justice Project why conservatives should take on these sorts of issues.

Charles Blain: Policing is interesting to me because as conservatives we often claim to support transparency and accountability and all of these great things and we really want to kind of put those things on our government and make sure that they abide by them. But one area where we fail to do that or we don't really call for that is in the area of policing, and it's often because I think conservatives feel that by calling for these transparency measures or calling for these accountability measures somehow puts them at odds with police. I don't believe that's the case and I feel that a lot of other conservatives, particularly younger ones are starting to feel that same way, that we do need to push for these things.

Charles Blain: Yeah, militarization of police was a big one. Just seeing some of these, if you go through the rosters of some of these police departments, especially a lot of these smaller ones, surprisingly, they have some ridiculous weapons that should by no means be being used against American people. These things are weapons of war, for lack of a better description. That's what they are, and it's just particularly alarming that they have access to these and it is something that I think more people should be concerned about as we move forward.

Charles Blain: We start to see more with use of force, moving into that, we often see a lot of these things on cameras now where you have body camera footage or just bystander footage of abuses of force by police. We need more transparent reporting of that. By doing more transparent reporting of that, we're not, again, putting ourselves at odds with police. What we're trying to do is make sure that there's kind of a standard of procedure that our local departments are operating by. Again, transparency and accountability shouldn't be reserved for just municipal government or state government. It needs to include all of our government, especially the arm of government that is intended to enforce the laws on the other arms of government.

Scott Henson: You can't manage what you can't measure.

Charles Blain: Right. Yeah, that's a great way of putting it. Yeah.

Scott Henson: If you have no transparency and you don't know what's going on, you aren't really managing that entity. Law enforcement is one of the most important functions of government.

Charles Blain: Right.

Scott Henson: Why wouldn't we want that level of transparency? I think that's a great point. Anything else we wanted to talk about while I got you?

Charles Blain: Well, no, nothing that I can think of. I just appreciate you asking me to come on and speak about a couple of these issues. I obviously read all of your work and look up to everybody else who's on the podcast. Grateful to be able to take a small part in it.

Scott Henson: All right. Thank you, Charles.

Charles Blain: Thank you.

Scott Henson: As we consider platform planks aimed at reining in law enforcement abuses, our podcast wouldn't be complete if we didn't take a moment to discuss asset forfeiture reform. A proposed new plank to the Texas State Party platform would abolish civil asset forfeiture and only allow the government to take a person's money or property if they've been convicted of a crime beyond a reasonable doubt.

Scott Henson: Under the current system, many people have their property seized without ever having criminal charges against them proved. I asked John Baucum of the Texas Young Republicans Federation why the GOP should take up this issue.

John Baucum: Sure. Well, I think when you look at the Republican Party and the basis of our principles, I think fundamentally you can make an argument that all rights come down to property rights, and when you have the government illegally or legally, in their opinions, seizing your assets with no recourse and no due process to get your property returned, that's a very difficult circumstance to face. You're right that they do use it as a tool in the war on drugs, which you could argue what problems that has broadening the capabilities of law enforcement to sometimes take possessions when nobody has recourse to fight against them, who were maybe not involved in any kind of illicit activity or related to any sort of drug program as well. For the civil asset forfeiture, we would like to see that eliminated and have criminal asset forfeiture where we require criminal conviction beyond a reasonable doubt and then obviously there would be appeals and more due process in those circumstances.

Scott Henson: Let's back up because I think most people may not be aware that the government can seize your assets without having convicted you of a crime. Describe briefly the difference between civil and criminal asset forfeiture.

John Baucum: Yeah. Exactly as you said, with civil forfeiture they don't have to convict you of a crime and sometimes even charge you with a crime to steal your property. What we would like to see under a criminal nature, you would have formal charges filed. You would have a right to a date in court. You would have an opportunity to have your opinion expressed, present your evidence. Under the criminal structure, it would need to be a total beyond a reasonable doubt conviction that this property was, in fact, being used in the commission of some type of crime.

John Baucum: Unfortunately, right now, with a civil forfeiture, the burden is just so low that the law enforcement says, yep, we think this person was carrying cash because they were going to buy drugs and they were going to haul them across the state, and that's that. Right now, that person is going to have to go through a very costly process of hiring an attorney and trying to fight to get that property back and making an argument where it's essentially their word against law enforcement's word. Many times, it's not worth that person's time or the potential risks of taking up that battle. Many times it'll just out of fear or out of certainty because of the lack of resources to fight that apparatus, they’ll just essentially let their property be gone and have no rights to fight to get it back.

Scott Henson: It's basically an equation. If it costs more to hire a lawyer than the property is worth, then you're not going to hire a lawyer.

John Baucum: Yeah. Which creates an incentive when law enforcement knows that, that they can know they can get away with basically stealing people's property without any recourse.

Scott Henson: David Safavian of the American Conservative Union Foundation also weighed in on the topic.

David Safavian: Asset forfeiture is a real problem that gives conservatives heartburn. The ability of the government to come in and make a bold out allegation and then confiscate your property without any conviction really does raise true issues of conscience. This should keep everybody up at night. It's something that Supreme Court Justice Clarence Thomas took on in dissent, and he said, "This is just plain wrong and we need to fix it." It's interesting that asset forfeiture really was grown out of a concept of maritime law when the government needed a way to take over a ship.

Scott Henson: Pirate.

David Safavian: Absolutely.

Scott Henson: It was a piracy law originally.

David Safavian: And it's now used often and to the abuse of our citizens. The second problem with asset forfeiture is that it creates a string of revenue without accountability. I don't think anybody believes that we should be starving police departments and law enforcement agencies over the funds necessary to do their job. All we're telling elected officials is do your job by appropriating the money. We shouldn't be policing for profit.
(singing)

Scott Henson: Finally, many conservatives, but especially many parents of teenagers and children's advocates are beginning to get behind proposals to raise the age of criminal responsibility from 17 to 18 years old. Texas is one of only four states that still treats 17-year-olds as adults for purposes of prosecution.

Scott Henson: I asked the Texas Young Republican Federation's John Baucum why his organization decided to champion this proposed plank in the State Party platform.

John Baucum: Yeah, well, I think one of the things with the 17-year-olds is these are still children, even though sometimes they're committing crimes that are very serious in their nature. I think in a final bill there might be an exception for very heinous types of crimes, but generally speaking, if you put a 17-year-old kid into an adult prison population, they're going to be trained by professional hardened criminals.

 John Baucum: Our justice system and our prison system is not built for reform, so a lot of these individuals are going to come out now additionally saddled with a criminal record affecting some of the things that I mentioned earlier, and now being trained by professional criminals in the sense where if they were put in the juvenile system, there might be a better opportunity to get them into some treatment program, some other types of reentry programs or alternative education, skill-building that might help them change their path while they're still a child and hopefully become a more responsible and productive adult.

Scott Henson: Right. For the more serious offenses, of course, they can already be charged or certified as an adult is what it's called. If, say, a 14-year-old had committed one of these terrible school shootings, there's already a way for that person to be held accountable under adult law. I'm not even sure you'd need an exception. I think we already kind of have that built in.

Scott Henson: All right. We're out of time, but we'll try to do better the next time. I'm Scott Henson with JustLiberty.org. Thanks for listening. You can subscribe to Just Liberty's monthly Reasonably Suspicious podcast on iTunes, Google Play, or SoundCloud. If you're at the Republican State Convention, be sure to drop by to see us at booth 426 or visit our website to join our statewide list of criminal justice reformers.

Scott Henson: Thanks to everyone who participated in our special GOP Convention podcast, and until next time, keep fighting for criminal justice reform. It's the only way it's going to happen.