Sunday, July 29, 2018

What the judges want: Judicial Council recommendations to the #txlege

The Texas Judicial Council last month issued its recommendations to the Legislature on criminal-justice reform heading into the 86th session in 2019. Let's take a look at what judges are asking of the Texas Lege.

'Data! Data! Data! I cannot make bricks without clay'
Although listed under the heading for opioids, a recommendation to improve statewide collection of case-level court data deserved to be highlighted more prominently. The Council wants Texas to  begin collecting:
relevant case level data from all court levels including magistrates, to generate more timely and detailed information to support policy, planning, management, and budget decisions for the justice system. The collection of the relevant case level data should be fully funded by the Legislature.
This recommendation would have policy making implications well beyond the opioid crisis, and would benefit legislators themselves as much as anyone. As Grits mentioned earlier this week, you can't manage what you can't measure. And there are large swaths of the justice system that cannot be managed because it's impossible to talk with precision about exactly what's happening on the ground. Case-level data could help change that. (MORE: A helpful commenter pointed out the Council put out a separate set of recommendations specifically addressing data issues; see here.)

Establish an Opioid Task force
Yawn. Outside of Houston, meth is the bigger problem in Texas. And solutions on overdose deaths are the same no matter which drugs we're talking about.

'Pretrial Decision Making Processes'
The Judicial Council recommended eight different items on bail reform, providing a comprehensive roadmap for the Legislature to shift from money bail to risk assessments when determining pretrial detention. The list includes both statutes and constitutional amendments necessary to implement the plan, with rulemaking at the Office of Court Administration to flesh out the details within a "sufficient transition period."

In the Judicial Council's vision, all defendants would be assessed for potential risk with a validated instrument developed by the Office of Court Administration. The state constitution would be amended to a) create a presumption that defendants will be released on personal bond and b) allow judges to detain defendants they deem to be a public safety risk regardless of their ability to pay.

They want the Legislature to help fund pretrial supervision as well as training for magistrates and others making bail decisions. They also want the Lege to require data collection on pretrial-release decisions as part of the reforms.

Getting the Governor Out of Specialty Court Oversight
This one is interesting. Under Gov. Rick Perry, specialty courts in Texas blossomed. Today, "Over 190 specialty court dockets operate across Texas, including DWI court, drug court, family drug court, veterans court, mental health court, and commercially sexually exploited persons court," with the Governor's Criminal Justice Division the largest funder. But this was the prior Governor's priority, not this one. So it's little surprise that the Judicial Council might suggest that "certification and oversight" of specialty court programs be shifted from the Governor's CJD to the Office of Court Administration, which answers more directly to the judiciary.

The Council noted that current practice in Texas is out of step with national norms; only one other state places oversight authority for specialty courts with the Governor.

This was clearly their most tentative proposal. Of all the things judges might request to stop mass shootings, asking the Legislature to fund better data entry into the national background check system is one of the least controversial, least bold, and least-likely-to-make-a-big-difference reforms you might name. But it's the only thing they could come up with.

No IAC Fix Suggested
One item Grits noticed was conspicuous by its absence. On the Court of Criminal Appeals, Judge Elsa Alcala has been calling for a legislative fix on ineffective assistance of counsel, which for the most part can only be challenged via habeas-corpus writs where defendants do not have access to an attorney. After four US Supreme Court justices raised the same issue in a recent dissent, Grits thought the subject might secure the Judicial Council's attention. I don't know whether they considered it or not, but clearly it didn't make the final cut.


Ray Collins said...


Leslie J. Smith said...

The Texas Judicial Council is addressing objective and should be more focused on the goals of the criminal justice system for the next legislative session:

Reintegration as a Goal: Reintegration as a goal is consistent with the theory of community and problem-solving justice. Traditional sentencing should be more focused on risk, recidivism reduction and the reintegration process and re-established within the American sentencing model. Reintegration as a goal establishes a message that strengthens the community and each criminal justice agency's commitment to improving social and criminal justice system outcomes.

Anonymous said...

"Although listed under the heading for opioids, a recommendation to improve statewide collection of case-level court data deserved to be highlighted more prominently."

See TJC's Data Committee report, where case-level data collection played a starring role:

Anonymous said...

Training for magistrates, decision makers, and pretrial program operators should have a high priority. Critical to know how to make decisions based on the assessment information and making sure pretrial assessment and supervision do not impugn presumption of innocence.