Thursday, February 21, 2019

Decarceration, police accountability, transparency: Little bills worth watching

Much attention at the Texas Legislature gets paid to a handful of Big Bills in the criminal-justice world like bail reform, driver-surcharge abolition, and enacting a constitutional standard for executing people with serious mental illness or developmental disabilities. But thousands of bills get filed, including lots of smaller ones that merit attention and potential support from justice reformers. Here are just a few that caught Grits' eye in the last couple of days. In the coming weeks I'll periodically highlight a few more pieces of less-high-profile Texas legislation that should be on reformers' radar screens. But for now, try these on for size:

'Mandate Relief' on pot and DWLI
Rep. Alma Allen's HB 371 reducing marijuana penalties has gotten a lot of attention because of the governor's endorsement of an essentially similar proposal. But Grits is just as interested in her HB 372 reducing penalties for Driving With License Invalid (DWLI). These two victimless crimes take up a lot of cop, court, jail, and indigent defense resources at the county level that would be better expended elsewhere. Reducing these penalties would be the opposite of an unfunded mandate, if there's a word for that: mandate relief, maybe.

Right-sizing three-strikes theft enhancement
Rep. Yvonne Davis filed HB 1240 adjusting the penalty for misdemeanor three strikes theft. Presently, the third strike garners a state jail felony, even if the grade of theft otherwise would only be a Class C misdemeanor. Davis' bill would create a third-strike enhancement that bumped the penalty category up one level, and require that all three strike occurred within a five-year span. In the wake of the Legislature boosting property-theft thresholds in 2015, three-strikes theft is now the second most common source of new entrants to Texas state jails, behind less-than-a-gram drug offenders (Rep. Senfronia Thompson's HB 1719 would reduce penalties for those defendants, fwiw), so three-strikes reform could have modest but significant decarceration effects.

Limit SWAT-style raids to imminent threats
Rep. Harold Dutton's HB 2015 would require law enforcement agencies to enact policies limiting the use of SWAT teams and tactics to situations involving an "imminent threat." It would require additional reporting on SWAT deployments, require those teams to wear body cameras, and specifies that "The existence alone of a legally owned gun in the home of an individual does not constitute evidence of an imminent threat." MORE: See excellent coverage of the bill from the Houston Chronicle.

Documenting consent
State Rep. Jarvis Johnson filed HB 804 to require police officers to get written or recorded consent to conduct "consent searches" at traffic stops.

Clarifying 21st century police powers
Rep. Toni Rose's HB 745 updates anachronistic language on police powers that's long-ago been usurped by court precedents and modern police practices. Remarkably, some of the language dictating police "shall" arrest (really it's "may") whenever they see a crime, or empowering officers to compel bystanders to form a posse, dates from slave-catching laws in the antebellum era which have never been revisited. That task is long overdue.

Media access to grand juror info
Rep. Tony Tinderholt's HB 1609 would allow disclosure of certain information about grand jurors to "a member of the news media acting in that capacity."

Closing the 'dead suspects loohole'
Rep. Joe Moody's HB 147 would close the "dead suspects loophole" in the Texas Public Information Act that says the government doesn't have to hand over any records if the case is never prosecuted. Moody's targeting cases that weren't prosecuted because the suspects died; Grits thinks that's a good idea, but it would be even better to open the records for all closed cases, as was the case in Texas from 1971-1996.

Expunction Junction, What's Your Function?
Rep. Terry Canales, the new chairman of the House Transportation Committee, joined with an impressive array of joint authors to promote a bill expanding expunction of certain nonviolent misdemeanors. This isn't my area of expertise and Grits doesn't track expunction/non-disclosure bills closely, but I'm glad to see serious people taking the issue on.

Study migrating Class C misdemeanors to civil penalties
Finally, Chairman Canales also filed HB 110 to commission a feasibility study by the Office of Court Administration, due Oct. 1, 2020, of which Class C misdemeanors should be converted to civil infractions. In a post last year, Grits explained why Texas law criminalizes hundreds of petty offenses - including up to 16 felonies you can commit with an oyster - that would be handled through regulation and civil penalties in other states:
Nobody in the Legislature wants to create new government agencies or responsibilities, much less fund enforcement. So when business practices arise that they dislike, Texas legislators typically react by passing a criminal law that punishes business violators with the same sanctions faced by people who rape or rob. 
Whether there are eleven felonies Texans can commit with an oyster ... Or sixteen. Or thirteen. Or seven. Or three ... matters less than the fact that there probably shouldn't be nearly so many criminal penalties related to shellfish at all. 
District Attorneys aren't the right people to be prosecuting regulatory violations, so often they don't get prosecuted at all until somebody gets seriously hurt, which is pretty much the opposite of what prioritizing public safety should look like. 
One of the criticisms of creating a civil penalty for low-level marijuana possession during the 2017 session was that Texas doesn't have civil penalties for anything, including license violations related to oyster harvesting. But to me, the substance of that criticism doesn't argue against a civil penalty for pot, but instead for reviewing how criminal law is used in Texas as a third-rate substitute for business regulation.


IC_deLight said...

How about the "big" U.S. Supreme Court case Timbs v. Indiana decided 9-0 (on Feb 20, 2019) which drove a stake through state government criminal and civil asset forfeiture laws?

Gritsforbreakfast said...

Haven't thought about it yet. SCOTUSBlog and dozens/hundreds of other follow SCOTUS, and it's important. But if I spend enough time to track it closely, I don't have the bandwidth to be aware of Texas bills, like the ones described here, which for the most part aren't being discussed anywhere else. Life is full of tradeoffs. :)

We do have some asset forfeiture legislation already filed and maybe more to come. It occurred to me to write about the bills in the context of the new ruling after the dust settles and I understand it. Right now, though, I don't.

Unknown said...

I was disappointed to see that you didn't mention HB 1271, as close to half of the inmate population would be effected by it. Due to enhancements, sentencing disparities, and law of parties, we have an entire classification of people not receiving credit for any sort of rehabilitative measures, vocational training, or work merits. On the outside it is portrayed as a means to keep our cities safe and pacify a group of very angry people but the truth in reasoning is an entirely different motive. TDCJ claims that recidivism rates are down partly because of on the job training in the TCI Factory but the reality is that more than 80 percent of those workers fall under the classification that isn't eligible for parole. What I'm saying is, people are being released without the training that TDCJ claims to give them, the TDCJ handbook states that those closest to parole are supposed to be working in the factory but that's not what's happening because the skilled labor of long and extended sentencing keeps a well oiled machine mass producing without any kinks in the system. A high turn over rate would slow production and these laborers are fine tuned and extremely compliant, some being in the same factory positions upwards of 15 to 20 years. Someone needs to take a closer look into this and expose this system for what it really is, a horrible mess.

Gritsforbreakfast said...

6:05, don't be too disappointed, I'll do this a couple more times bf the bill filing deadline. There were other good bills that didn't make it on this list, too, I wasn't trying to be comprehensive. HB 1271 has good support this time and probably deserves more than a little blurb, anyway.

Anonymous said...

HB1271 does not exclude violent offenders or "3g" offenders. When those sentences were handed down by a judge or jury, or when the offender accepted a plea deal, they knew in advance that they are required to serve 50% of their sentence without any credits. To change that now, retroactively, dishonors the criminal court, the jury system, and violates the victims (once again). If Rep. Thompson would rewrite the bill to exclude 3g offenders, as she was told in 2017 during the public hearing that went past 5pm, she would have less opposition to this bill. Indeed, ending mandatory release was not allowed to be implemented retroactively. This type of change to parole eligibility should not be retroactive, either. The "support" that Rep. Thompson has is from a group called "Survivors Speak," a partner with Alliance for Safety and Justice. The names sound good, right? Don't be deceived. Their mission statement clearly states that they support reducing the prison population. TV news interviews specifically stated that they are for "safety over incarceration." The group hails from CA, and they've been quite specific about targeting 5 states, including Texas, during legislative sessions. They do not speak for crime victims; they speak for the far left, bleeding hearts who want to give each prisoner a cupcake and a pass to get out of prison, while the victims of those prisoners are spat upon by such legislation. Those speaking on behalf of these two organizations likely have no offender in Texas or, more than likely, were not even victims of crime in Texas. Names searches on their most prominent or vocal members traces back to California. Most of their senior members can be traced back to other prison reform or TIFA-type groups. #dontmesswithTexas #victimshaverights #dothecrimedothetime #mychildslifemattered

jarenaud said...

To Anonymous above, in re HB 1271: Retribution, retribution. If the concept of retroactivity were never to be used in the criminal justice arena, the Constitution-based decisions exemplified by Gideon v Wainwright, Atkins v Virginia, Roper v Simmons (relief to the indigent, to the intellectually disabled, and to individuals convicted as juveniles respectively) would never be applied to anyone but current petitioners. Rectifying what an evolving society sees as injustice has always been with us, unless what one wants - as it seems you do - is for Texas to forever live with the excesses of prosecutors bent on overly punitive sentences. As to Alliance for Safety and Justice, some of what you say is true. And NO ONE speaks for all survivors other than survivors themselves, of which all in ASJ are. And they have at least gone to the trouble of having conducted a nationwide survey of beliefs among the survivors of violent crime, which you can find here. ( And contrary to your comments, MOST survivors aren't bent on hellfire and retribution. And the group has many members who have in fact been victimized in Texas. Lastly, parole eligibility does not mean parole release. TDCJ has approximately 65,000 individuals with 3g convictions in its prisons. Under TDCJ policy, those individuals cannot enroll in many, if not most, of the transformative programs that the system has in place for individuals, which means that these people will all be released into their communities without having had the years-long immersion into Anger Management; Restorative Justice; cognitive thinking programs, and/or basic education/vocational courses that would help them be good neighbors. Is that what you wish for your community? For your revengeful ideas, based on retribution and rage, to result in individuals being released into Texas communities without the tools necessary to successfully rejoin their communities? Yes, your child's life mattered. I am deeply sorry for what happened to your child and your family. So isn't it incumbent on Texans to do what we can to ensure that the individuals in prison are allowed to avail themselves of every opportunity to approach transformation, even if that means letting go of a little bit of our rage?

Gritsforbreakfast said...

And there's all your opponent's messaging, 6:05. Now you know what arguments you'll need to counter at the hearing.

@11:58, clearly you can't comprehend why some crime victims might disagree with you on the merits of mass incarceration, but they do. Critiquing their arguments is fair game, but I don't think you'll get very far trying to pretend only you (whoever you, anonymously, are) represent crime victims true interests. Other voices besides your own get to participate in the conversation.

Anonymous said...

11:58 here. Of course not all crime victims agree - there is a small limb on that tree that holds not only victims, but their incarcerated baby daddies as well. I expect those people to lean toward mass release. The "nationwide survey" is a joke. I know hundreds of crime victims and not one of them were asked to participate in the survey. Not one. Had the similar bill in 2017 been enacted, it would have made over 19,000 offenders immediately eligible for parole who were not otherwise eligible. Like I said, take out the violent offenders, rapists and those who commit crimes against children, and there's less opposition to it. I'm not revengeful; I'm irritated that I even have to deal with this at all. I'm not raging; I'm expecting the offender that killed my daughter to do the time that he agreed to, under the laws in place at the time of the crime/conviction. I don't think anyone is worried that this bill might change the parole eligibility of, for example, those serving lengthy sentences for possession of pot. However, unless there was an affirmative finding of the use of a deadly weapon or other enumerated 3g offense, those people are already earning time credits. The only people who aren't earning credits are the 3g offenders. The 3g offenses were specifically codified by the legislature as the most heinous crimes, the worst of the worst. No, I do not want those people released into my neighborhood sooner than already mandated. You do?? If they are not allowed to participate in transformative programs during the first half of their sentence, they should certainly avail themselves to those programs during the latter half. Perhaps the parole board will refuse their request for parole until after they have completed those programs. During the first half of the sentence, the victims can try (TRY) to find some healing. Some peace. Some sort of new normal. After that point, they are thrust into the turmoil of dealing with parole hearings, at their own expense. Do not forget - parole is not a constitutional right. How about we abolish the parole board completely, and reinvest those funds into our communities with education, prevention, and other services. Federal time is day for day, so why shouldn't Texas time be as well?

jarenaud said...

Some good points there. I'm glad that you aren't rageful or simply seeking revenge, because that harms the spirit. I wish to comment on a couple of points.
First, the comment about the Lege putting 3g into statute to deal with the worst of the worst is simply not so. I was convicted under a 3g statute for an aggravated robbery, did 16 on a 60, been out 11 years, have my MA in Social Work and have run healing circles for survivors of crime along with individuals who have committed crimes. I can honestly say I've been a valuable member of my community, and how many like me are still in prison? I'm not an anomaly.
Second, ALL individuals with 3g convictions earn good time credits. They just can't apply them to the two areas where good time is applicable - initial parole eligibility and discharge. But they do in fact earn good time, by statute.
Third, to say that a "small limb" on the tree that carries all the weight of the pain suffered by survivors of violent crime who disagree with you is somewhat disconcerting, and the "baby daddies" comment is, frankly, disturbing. I hope you think on that.
Fourth, there were 3.1 million victims of violent crime in 2017, according to the BJS (go here and since you've known, say, 200, that's, well, far less than one hundredth of one percent. You may disagree with the survey. I again point to emotion-fueled desire for retribution and the unwillingness to think that another's pain is as valid or searing as yours.
Finally, the federal system does in fact give good time. Not much, but it does. There are 16 states that have abolished parole for individuals who committed their crimes after a certain date, and they are beset with burgeoning prison populations, high crime rates, and a burden on taxpayers that is unsustainable. It isn't parole that is the issue - it is the astonishing brutality inside prison and the barriers after that contribute to so much of what drives people who wish to reform not only prison, but parole.
To say that it is only at a certain point in an individual's incarceration that a "victim" (as you call them, which gives a key to your viewpoint) can begin to heal lays the healing itself on forces out of the "victim's" control, and that is a terrible power to give away. If it is only through the actions of others that you, or other survivors, can begin to truly heal, then perhaps there is something rooted in the pain and punishment meted out to others whereby you gain solace, and if that is so, I wish there were something you could do other than wish for the pain of others to be extended to find peace in your life.

Anonymous said...

"How about we abolish the parole board completely, and reinvest those funds into our communities with education, prevention, and other services."

I somehow doubt whatever the parole board costs can even compare to what it costs to keep all these people in prison day for day or even half their sentences.

Everyone in prison not sentenced to death or civil commitment is redeemable in the eyes of the law. The question is, how crippled do you want them to be when their redemption comes?

George said...

@ Anonymous 11:58

Jarenaud speaks truth. Whether you want to admit it or not, a large part of your life is, as evidenced from your comments,consumed with hatred towards not only the person responsible for the crime that took your child, but also for ALL those convicted of violent crimes.

Hatred will destroy from within. Holding someone responsible for their actions is one thing but holding that standard to all is quite another. Some victims refuse to become "professional" victims and instead take steps to move beyond the events that happened in their lives. Forgiveness is one of the most powerful transformative tools that one can have in their personal toolboxes. Forgiveness doesn't mean forgetting or expecting to open the prison gates for those responsible of crimes. Forgiveness is primarily for you and helps you replace the hatred inside you with positive energy instead of negative energy.

Anonymous said...

11:58 As someone who was around back when these things were enacted some perspective is in order. There was widespread opinion among the voters that the parole system was broke. We were under federal control with mandatory population controls and the system literally busted at the seams. A host of Rube Goldberg fixes were thrown at the problem and yes you are correct to state that the idea was to keep the worst of the worst locked up.

In this period of bubble gum and bailing wire reactions by the electorate adding 3G categories seemed like a simple fix. Concurrently we got around to adding capacity and at the same time prosecutors and the hard ass judges we elected during this period got creative. We got concepts like constructive possession that bastardized the will of the voters. Creative use of the law of parties and/or EOCA statutes with minor actors going down for big time because they did not follow the he who snitches first rule or plain lack of prosecutorial discretion has put the bottom rail on top in too many cases.

As a voter who supported many of these initiatives 30 odd years ago it's as clear as daylight in hindsight that many were an overreaction. Conditions change. It's an analog world not binary. We learn from our mistakes and make corrections. And if we cannot apply those corrections retroactively to sentences that are going to be served long into the future you'd have us move forward with both hands tied behind our back. Just more madness.

BarkGrowlBite said...

Abolish the parole board? Ha, parole in Texas is a joke. Parolees get little if any supervision. It's all ankle monitors and mandatory office visits. What there is of it operates only on Monday-Friday, 8am-5pm. I've been in a parole system that required it's officers to make field visits in the evening hours in addition to daytime visits. And they could only work in the office one day during the week. What we have in Texas is referred to as 'paper parole.'

As for Harold Dutton's HB 2015, it's easy for him, sitting in his easy chair, to be critical of the way SWAT teams are deployed. While there may e instances in which SWAT teams were unnecessary, most of the time they are used to keep both cops and crooks from being shot Dutton has never been there, I have.

jarenaud said...

To BarkGrowlBite: Parole is a joke? I guess it depends on your measuring stick. The faults of the Texas parole process are mostly during the processes, and those revolve around transparency. But if what you want from your parole supervision is results, as measured by grant rates, return to incarceration for new offenses, and returns to incarceration on technical violations, Texas actually stands out among the states. If what you want from your parole system is supervision akin to a hammer, the "trail 'em, nail 'em and 'jail 'em" method, yeah, Texas doesn't do that. But as someone who's been in parole over 10 years and has seen the system in Massachusetts work like you wish it would - with their 87% return to incarceration versus Texas 18% - I'm not sure what you are basing your critique on.

JC said...

Anyone have any idea if HB64 is likely to succeed? I see there hasn't been much to done with it once it went to committee. I would think that with five authors of the bill, meaning five different representatives, this would garner some attention. I've heard that most bills die in committee each session anyway. Heaven forbid something pass that's actually helpful to citizens (/s).

Anonymous said...

Thank You Anonymous I agree!

BarkGrowlBite said...

Jarenauf, if you believe that 18 percent rate, I've got some beachfront property in Phoenix that I'll sell you for a good price. When the national average of parolees returned to prison 3 years after release is 50-60 percent, there is no way on earth those touted Texas rates can be true. The public is being sold a phony bill of goods by the Texas Department of Corrections. But you go right on believing in the tooth fairy.

By the way when I was a California parole agent I had a special case load of all heroin addicts, and my "trail 'em, nail 'em and 'jail 'em" method as you call it worked very well. Only about 40 percent of my heroin addicts ended up back in the joint.

Strict parole supervision not only keeps parolees on their toes, but it also serves to protect the public. The public is not protected by the worthless Texas parole system.

jarenaud said...

BarkGrowlBite, your stats are outdated, sorry. The cohort released in 2005 showed that high a national rate, yes. But ten years later, the national rate is 37 percent. Texas isn's saying that. I'm not saying that. Pew Charitable Trusts is. (
The role of parole should not be to "keep people on their toes" but to reintegrate successfully back into their communities. It's that type of attitude that kept CA with one of the highest return to incarceration rates of any state. Texas has one of the lowest, without a concurrent rise in crime. If the Texas parole system is "worthless" and without force, then why is there not a concurrent rise in crime in Texas, in Austin, in Dallas, in Houston? Sorry. Your analysis is stuck in the past, believing that people who have gone to prison won't change and that parole must be a hammer all the time. Never worked, and you won't believe me. Likely won't believe Pew either but here goes.

BarkGrowlBite said...

OK, let's say that PEW is correct. If so, a good part of that is because parole authorities are under pressure to keep parolees on the streets as a means of helping to solve prison overcrowding conditions and fewer criminals are being sent to prison for the same reason. California reduced a number of felonies to misdemeanors for that reason and has seen a rise in crime as a result.

And there is still no way on earth that Texas parole failures are half the national average.

Anonymous said...


Not sure why you're so proud of returning heroin addicts to prison. Doesn't really seem to be the type of crime that protects the public. Maybe you should have been the type of parole agent that made sure addicts got help for the issue.

Anonymous said...

My daughter is a victim of a high profile case. I know this may sound odd coming from a victim's mother. I've seen how our prisons are run. We are creating and releasing monsters that are worse than when they went in. We have to change the way they are run. If we are going to let them out eventually, there has to be a true effort in rehabilitation and currently we have none.

Anonymous said...

I totally agree with you. I'm the mother of a child who was a victim. It took years but I let go of the hate I have for the offender that hurt my daughter because it ate me up. I will fight his parole because you can't rehab a true sex offender. I also know I don't want them released without true rehabilitation so they don't further victimize

Anonymous said...

Many Texas prisons don't have the programs really necessary to help them become productive citizens. I think you need to visit a few prisons. You don't seem to know much about them...

Anonymous said...

Massachusetts is currently 28% from what I just read