#cjreform implications of Texas Senate races

How might contested state-senate races in the November elections affect criminal-justice reform prospects in Texas?

Prospects for senate turnover
Alex Samuels at the Texas Tribune today reported news which has been widely understood in political circles for months - that as many as three Republican state senate districts could flip red-to-blue in a high-turnout, Democratic-wave election. Those seats are presently held by Konni Burton, Joan Huffman, and Don Huffines.

Samuels focused on the most obvious potential change: Because a supermajority is required to bring legislation to the floor, if they won those races, Democrats would suddenly have the power to block Republican bills when they vote as a bloc.

For criminal-justice reformers, though, the subject is more complex. For us, the problem isn't so much killing bad bills as how to pass good ones.

An imperiled champion
Sen. Konni Burton has been the most enthusiastic Republican senator when it comes to justice reform. She's been one of the senate's best Fourth Amendment champions, but her crowning #cjreform achievement IMO came with a 2015 amendment that adjusted Texas' property-theft thresholds upward, reducing the number of people picking up a felony charge. The result was to steadily depopulate Texas' "state jails," reorienting the system from incarceration to victim restitution at the local level and causing probation rolls to plummet.

If Burton were to exit the senate, it would make it more difficult for reformers to amend House bills in the eastern side of the capitol and to whip Republican support in the senate. She's not a policy expert, like Senators Whitmire or Huffman, but when Burton embraces an issue, she does so energetically, with zeal, and she doesn't quit or back down in the face of opposition. Those qualities matter, and will be difficult to replicate.

Notably, when your correspondent heard her speak the other night at a Northeast Tarrant County Tea Party meeting, Burton suggested that her criminal-justice-reform advocacy was benefiting her in her state senate race because, in a 50/50 district, she had to appeal to swing voters and seek Democratic crossover votes. That meant she'd found herself frequently campaigning among minority neighborhoods and community groups in her district, she said, and she told the Tea Party folks that her record on #cjreform had proven to be an asset on the campaign trail when trying to reach those voters.

Gatekeeper could lose her post
By contrast, Sen. Joan Huffman has more often than not been an obstacle to criminal-justice reform in the upper chamber, with two caveats: 1) She has sometimes acquiesced in compromised versions of reform that still represented significant gains, and 2) the longer she's been in office, the more educated she's become about systemic problems, as evidenced by her vocal advocacy for mental-health funding. In the last couple of sessions, she has seemed more open to at least discussing problems and listening to proposed solutions.

Still, if Huffman were vanquished, the senate would lose its long-time tuff-on-crime gatekeeper. And there aren't other senators with much background on criminal-justice topics to make it obvious who might assume that role on the R side. Criminal Justice Committee Chairman John Whitmire, a Democrat, often dominates justice debates in the Senate because he's so much more knowledgeable on the topic than his colleagues. Sen. Huffman, a former prosecutor and judge who frequently carries law-enforcement messages and bills, has been his Republican counterweight.

If she was somehow dislodged from office, it would be a big change. That said, when she ran against the same Democratic opponent in 2014, Huffman beat her like she was owed money, so take Samuel's assessment of vulnerability with a grain of salt.

Senate remains a mixed bag
Sen. Huffines has been a relatively minor player on justice topics, promoting abolition of the Driver Responsibility surcharge and red-light cameras, but shying away from other #cjreform subjects.

So it's a mixed bag: Huffman's departure would shake things up, but other potential GOP gatekeepers aren't a big improvement, and losing Konni Burton would be damaging.

A champion arises?
The one bright spot in this otherwise hazy outlook in the senate is that the corrupt Carlos Uresti - who on #cjreform issues would have needed to become more active to qualify as "furniture" - will be gone, and appears likely to be replaced by former Congressman and 22-year Texas House member Pete Gallego.

Gallego, who has worked as both a prosecutor and a defense attorney, chaired the Criminal Jurisprudence Committee when I was Policy Director at the Innocence Project of Texas and was an important ally on many of the reforms passed while I was there. The bill that stands out most to me was Texas' junk-science writ, which he and Sen. John Whitmire pushed through successfully in 2013 before Gallego left to run for Congress. He was a mensch throughout the process, and as knowledgeable and thoughtful as any legislator I've worked with. He'll be an excellent addition to the senate from a #cjreform perspective, and a huge upgrade from his predecessor. UPDATE (9/18) Gallego was upset in this race by Bill Flores, so the seat flips from D to R, reinforcing Republican power in the upper chamber heading into election day.

The potential for volcanic eruption
None of these would amount to a sea change in the Texas Senate, even if all three of the vulnerable Republicans end up losing. But it would be a truly volcanic transformation if Dan Patrick lost the Lieutenant Governor's seat, and a recent poll showed him just a couple of points ahead of his Democratic opponent, Mike Collier. That would be a much more titanic shake-up, on many levels beyond just criminal justice, and would likely clear the way for more aggressive #cjreform legislation. If the blue wave goes that deep, one might expect Sharon Keller to lose her seat on the Court of Criminal Appeals as well, and for Attorney General Ken Paxton to at least be getting nervous on election night.

That would be unexpected, and I certainly wouldn't bet on it. (If Grits were in Vegas setting the betting line, I'd say Ted Cruz by four points, Dan Patrick by six.) But a lot about American politics is unexpected these days, and stranger things have happened.