Saturday, March 30, 2019

Class C misdemeanor arrests and incarceration in Texas, by the numbers

Beginning with the consideration of HB 482 (Thompson) in the House Homeland Security and Public Safety Committee on Wednesday, the Texas Legislature will spend quite a bit of time over the coming weeks considering the consequences of arrest and incarceration for Class C misdemeanors, which in Texas are minor offenses carrying a maximum punishment of a $500 fine and no jail time.

There are two ways people end up incarcerated over Class C misdemeanors. First, after the US Supreme Court okayed the practice in Atwater v. Lago Vista (2001), police may arrest drivers for minor traffic offenses or violations of municipal ordinances, even if the maximum punishment is only a fine. That's what happened to Sandra Bland. Though she was eventually charged with resisting, when the officer first placed her under arrest, it was for the underlying charge of failure to signal a lane change.

Alternatively, if drivers can't pay fines and fees and don't show up for court, a warrant or "capias pro fine" may be issued for their arrest. Millions of such arrest warrants are outstanding at any given time, and hundreds of thousands go to jail each year because they can't afford Class C fines.

For purposes of one-stop shopping, Grits thought it worthwhile to reiterate some of the basic data surrounding arrests and jail for fine-only offenses in Texas all in one post. For fun, let's roll them out Harper's-Index style:

Rate of arrest for Class C misdemeanors at traffic stops in 2018 by the Texas Department of Public Safety: 18.4 per 10,000 stops.*

Rate of arrest for Class C misdemeanors at traffic stops in 2018 by Waco PD: 451.4 per 10,000 stops.*

Proportion of jail admissions in Harris County in a four-month 2016 study for which a Class C misdemeanor was the highest charge: 11%.

Proportion of traffic stops at which Texas DPS troopers used force against a driver in 2018: 17.02 per 10,000 stops.*

Proportion of traffic stops at which Austin police officers used force against a driver in 2018: 77.2 per 10,000 stops.*

Number of Texans in 2018 who sat out their Class C fines and fees in jail because they couldn't afford to pay: 524,628.**

New arrest warrants and/or capias-pro fines issued by JPs and Municipal Judges in Texas in 2018 for Class C misdemeanors: 2,141,656.**

Number of Texans for whom judges waived Class-C fines for indigence in 2018: 54,794.**

Percentage of Texans who, according to an Office of Court Administration poll, disapprove of jailing people over fines and fees when defendants cannot afford to pay: 66%.

Percentage of Texans who believe "the wealthy enjoy substantially better outcomes in the criminal justice than poor and working-class people": 81%.

Percentage of Americans the Federal Reserve says cannot pay a surprise $400 bill without selling something or going into debt: 40%.

Percentage of Americans the Federal Reserve says cannot pay their current month's bills: 20%.

* Source: Compiled from agency racial profiling reports from March 1, 2019. See more background here.
** Office of Court Administration Judicial Statistics data query.

    Thursday, March 28, 2019

    Bail-reform blues: Can't please all parties when reforming pretrial-detention process

    Governor Greg Abbott's endorsement of bail reform last year appeared to give the issue fresh life. But Abbott has now backed a bail-reform bill that eschews best practices and instead puts his office at the center of future decisions about pretrial reform.

    The Houston Chronicle editorial board rightly opined that the move puts legislative reform efforts at extreme risk, but it's hardly just the governor. There's a swirl of backroom drama surrounding this topic with an array of competing interests and agendas, and no obvious way to navigate the morass. Here's an overview of interests framing the topic:
    • Federal court injunctions have mainly focused on representation of indigent defendants at bail hearings and eliminating discrimination based on ability to pay.
    • Counties oppose requiring appointment of counsel for indigent defendants earlier in the process, considering this an "unfunded mandate."
    • The Texas Judicial Council proposed using risk assessments to reduce incarceration of low-risk offenders (the Office of Court Administration developed an instrument based on work by the Laura and John Arnold Foundation to create a version counties could use for free).
    • The bail industry opposes use of risk assessments with the heat of a thousand suns and is investing big money in lobbying and communications strategies to undermine bail reform efforts.
    • After the death of a state trooper named Damon Allen, Governor Abbott weighed in to say his biggest priority was expanding the scope of preventive detention.
    • The criminal defense bar adamantly opposes granting any additional preventive detention powers to the government.
    • Criminal-justice reformers are split. In theory, all support reduced pretrial incarceration in county jails, but some oppose the use of risk-assessment algorithms which are viewed as racially biased.
    The Governor's proposal criticized by the Chronicle focuses primarily on preventive detention and expanding the power of his office over local court processes. The federal litigation driving the issue is more focused on access to counsel at bail hearings and reducing unjustified pretrial detention. Meanwhile, the Whitmire/Murr legislation ignores the access to counsel issue and promotes risk assessments and preventive detention, trying to merge the Governor's priorities with the judiciary's.

    Never say never, but it's hard to see the path toward threading that needle. And if it were to occur, the resulting bill likely wouldn't resolve the issues at stake in the federal litigation, and we'd be back doing this again in 2021. After the federal litigation has finished, it will be much more clear what needs to be in the bill to ensure counties meet baseline constitutional standards, since they will have been outlined by the 5th Circuit.

    In the end, the will may not yet exist to solve the problem through the political process. Certainly there is no consensus regarding what reform should look like and who should control it.

    But much could change between now and 2021. If the Lege fails to act this year, odds are federal litigation presently pending in the 5th Circuit will reach its denouement between now and the next time they meet. That will create a new baseline for pretrial-detention rules and give the Legislature much more guidance, and possibly different priorities.

    So look for the Texas Lege to revisit bail reform in 2021, whether or not a bill passes this time.

    Saturday, March 23, 2019

    Modifying 3-strikes theft enhancement would ↓ TX state-jail population

    On Monday, the Texas House Criminal Jurisprudence Committee will hear a good little decarceration bill modifying the enhancement for misdemeanor three-strikes theft. This one should have been changed long ago.

    Under current Texas law, if at any time in your life you commit three incidents of misdemeanor theft, regardless of the value of the property, prosecutors can charge it as a state-jail felony. Even if the third "strike" is stealing candy from the grocery-store check-out line, prosecutors can seek a felony conviction and sentence.

    HB 1240 by Rep. Yvonne Davis would revise this statute in two important ways: First, it would require that the lower-level thefts be within five years of one another to count toward a penalty enhancement. Piecing together a new, theft with two others that are decades old will no longer be allowed.

    Second, the penalty increase stemming from a third "strike" would only bump the charge up by one category. So if the third strike were a Class A misdemeanor ($750 to $2,499.99), it would make no difference. But if it were a Class C or B misdemeanor, the penalty would still be a misdemeanor.

    This change will further reduce the number of inmates entering Texas state jails, which notoriously have the highest recidivism rates of any facilities in the system.

    Just Liberty reviewed Texas Department of Criminal Justice datasets and discovered that three-strikes theft accounted for almost 2,400 state-jail admissions in the 2018 fiscal year. This is the second most common reason for a state-jail sentence after possession of a controlled substance.

    A few of those folks would have still gone to state jail under HB 1240. But because most theft involves low-value items, many more people would have been charged with misdemeanors instead of felonies. Grits wouldn't be surprised if HB 1240 all but eliminated three-strike theft offenders in Texas state jails.

    Hard to argue with this one: Reduces incarceration in state jails where recidivism is high, reduces public perceptions of unfairness, but still sends a message that repeat theft won't be tolerated. Grits is delighted Rep. Davis proposed the bill and pleased that Chairwoman Nicole Collier is taking it up on the early side this session. HB 1240 deserves strong, bipartisan support from criminal-justice reformers.

    Wednesday, March 20, 2019

    Why Police Should Be Required to Get a Warrant to Use Cell-Site-Simulators (aka, "stingrays")

    Legislation heard this week in the Texas House Criminal Jurisprudence Committee, HB 352 (Blanco) would require warrants for Texas law enforcement to use so-called “stingrays” or “cell-site simulators” to track people's cell phones, and provide more transparency surrounding use of these devices.

    So-called “Stingrays” or cell-site simulators are examples of relatively new surveillance techniques hovering at the bleeding edge of both cell-phone technology and Fourth Amendment jurisprudence. Because their use has been largely shrouded in secrecy and few clear precedents exist to model limits on this tech, the handful of law-enforcement agencies using it have until now operated in virtually a regulation-free zone.

    Rep. Cesar Blanco, a third-term Democrat and former Navy intelligence office, understands signals intelligence better than probably any other legislator and is an excellent bill sponsor for this topic.

    How Cell-Site Simulators Work
    Cell-site simulators work by tricking your cell phone into believing it’s attaching to a legitimate cell-phone tower, which it “pings” periodically to make sure the phone is ready to make a call. This means that, when targeted users (or others in their vicinity) make a phone call, it’s routed through the cell-site simulator instead of the nearest tower. Representations by Houston PD at Monday’s hearing about the limited nature of the technology understated its capacity.

    Cell-site simulators hijack and divert cell-phone signals from their commercial carrier’s network, making it more similar to a wiretap than a “pen register.” Some models of cell-site simulators allow full-blown wiretapping; others provide access to metadata from calls and callers; others may only provide information on signal strength and direction, allowing investigators to triangulate location with just a few measurements. It all depends on how much functionality an agency chose to pay for; the device is capturing the entire signal and can let investigators access any or all of it.

    Movement toward ‘stingray’ warrant requirement
    The US Supreme Court has not yet ruled on so-called “stingrays,” but several states already require warrants for cell-site simulator use with no ill effects. (Virginia, Washington, Utah, Minnesota, and California.)

    On December 19, 2016, the U.S. House Committee on Oversight and Government Reform issued a comprehensive, bipartisan report on law-enforcement use of cell-site simulators and recommended legislation that would require “probable cause based warrants” to “ensure that the use of cell-site simulators and other similar tools does not infringe on the rights guaranteed in the Constitution.”

    The US Department of Homeland Security established a policy of seeking a warrant for use of cell-site simulator technology with limited exceptions for exigent circumstances.

    Finally, civil libertarians have persuasively argued that, when a cell phone inside someone’s home is targeted with signal interception via a cell-site-simulator device, it per se violates the Fourth Amendment right to security from unreasonable searches of one’s “houses, papers and effects.” (Traditionally, Fourth-Amendment protections inside the home have been much stronger than elsewhere.)

    Secrecy breeds mistrust
    At Monday’s hearing, police expressed fears that innocent people might be hurt if information from search warrant affidavits about how and when police used the technology ever surfaced. But search-warrant affidavits have been public records since the dawn of the Republic. The more significant concern is that law enforcement will use the technology unaccountably and secrecy will protect them.

    Not only does the public deserve to know when the government is using invasive surveillance technology, undue secrecy creates systemic problems. In Houston, police have even kept prosecutors in the dark when stingray tech was used.

    Texas legislators should extend the same warrant requirement mandated by the Supreme Court in US v. Carpenter to cell-site simulator devices. This shadowy practice has flourished for too long on the edges of modern technology and privacy law. HB 352 is Texas’ opportunity to begin to restrain and regulate it.

    See prior, related Grits coverage.

    Carpenter codification non-controversial so far
    Rep. Cesar Blanco also filed a related piece of legislation, HB 353, which essentially codifies the US Supreme Court case US v. Carpenter requiring a search warrant for the government to access cell-phone location data held by wireless cell-phone carriers. (Readers may recall Grits' poetic ode to the case after the oral arguments.)

    Unlike the stingray legislation, no one opposed this bill. There was a half-hearted effort by a cop speaking "on" the legislation to preserve the real-time vs. historic location information distinction that the Texas Court of Criminal Appeals tried to stake out in Sims v. Texas. But it's awfully hard to defend the idea that the government has a right to know where you are at any given time, in real time, without demonstrating probable cause. From the solitude of Judge Barbara Hervey's chambers at the Court of Criminal Appeals, one perhaps can make that strained argument without fear of recrimination. At a legislative hearing, nobody even tried. 

    The reality is, even if they tried to do a Less-Than Carpenter Codification, this area of constitutional law is fluid and trending toward requiring more warrants for surveillance, not less. As such, Grits imagines that trying to short-change the warrant requirement could result in future federal court decisions rendering the language anachronistic. Rep. Blanco's approach is the wiser one.

    Monday, March 18, 2019

    Podcast: Elsa Alcala says Texas death penalty unreliable; parsing new TX traffic-stop data; prospects for Lone-Star marijuana reform, and other stories

    Here's the March 2018 episode  of the Reasonably Suspicious podcast, recorded last week on the SXSW Podcast Stage hosted by Cadence13. Former Texas Court of Criminal Appeals Judge Elsa Alcala was our special guest, focusing on junk forensic science and the death penalty.

    Here's what's on this month's show:

    Opening Riff
    Would permanently shifting to Daylight Savings Time reduce crime?

    Top Stories
    • Prospects for marijuana reform in Texas
    • New data on use of force at Texas traffic stops
    • Legislative proposals to end the Driver Responsibility surcharge
    Forensic Focus
    Judge Elsa Alcala discusses junk science cases at the Texas Court of Criminal Appeals.

    Death and Texas
    Judge Alcala discusses the evolution of her views on capital punishment, from proponent to critic, and what the Texas Legislature should do to fix the state's unconstitutional laws on executing people with developmental disabilities.

    The Last Hurrah
    • More corruption revealed after botched drug raid in Houston
    • Should stealing Amazon packages become a felony?
    • Closing the "Dead Suspect" loophole to the Texas Public Information Act
    Find a transcript of the show below the jump.

    Wednesday, March 13, 2019

    Defining an 'undue hardship': Updating last session's debtors-prison reform bill

    The Texas House Criminal Jurisprudence Committee on Monday heard HB 465 (White), which is update legislation from debtors-prison reform legislation (HB351/SB1913) passed in 2017. (Attentive readers may recall that, when he laid out HB 351, state Rep. Terry Canales told the committee that the ideas in his legislation originated with a post on this blog!) Despite predictions two years ago that collections would plummet and indigent drivers wouldn't be held accountable, the opposite occurred: collections actually increased when some of the most regressive collections tactics were abandoned.

    But the 2017 legislation only made a small dent in the problem. While there was an uptick in fines waived and community service granted, far more people (more than half a million) satisfied their fines through "jail credit" - i.e., they were incarcerated in lieu of payment.

    Readers may also recall that, at their state conventions in June, both the Republican Party of Texas and the Texas Democratic Party included provisions in their platforms calling for an end to jailing drivers for non-payment of traffic tickets and other Class C misdemeanor debt, switching to commercial collections methods, instead.

    HB 465 does not go that far. (White's HB 2754 comes much closer; more about that bill soon). Rather, HB 465 demands that judges take into account defendants' ability to pay, authorizing them to waive fines or order community service if penalties create an "undue hardship," a phrase which is defined more broadly in the bill than in the past. The changes would bump up usage of fine waivers and community service in lieu of incarceration, but leave the fundamental "pay or we jail you" structure of the system intact for most drivers. Regardless, it's a good bill making important improvements to a regressive, dysfunctional collections process.

    Here's a fact sheet from the Texas Fair Defense Project and Texas Appleseed supporting the bill.

    Saturday, March 09, 2019

    New reports show Austin police use force at traffic stops much more often than other agencies

    UPDATE: Austin Police Chief Bryan Manley announced that his agency had mis-reported use-of-force data in its racial profiling report. See here for details. He did not dispute Austin's arrest data reported below.

    (Original blog post) Austin police are more likely to use injury-causing force against drivers they pull over than any other large Texas jurisdiction, according to new "racial profiling" data reports out this month from law-enforcement agencies around the state. Go here to look up reports from various departments, which agencies were required to submit to the state by March 1st.

    These are called "racial profiling" reports because documenting racial discrimination was their original purpose when they were mandated in 2001. But really, they're the most detailed description we have of police activities at Texas traffic stops, revealing lots of interesting patterns and trends in addition to (still extant) racial disparities.

    Indeed, thanks to state Sen. John Whitmire and Rep. Garnet Coleman expanding data collection in 2017 as part of the Sandra Bland Act, Texas now has MUCH more information about law enforcement activities at traffic stops in Texas, including new information about use of force at stops, how many people are arrested on outstanding warrants, and how many people are arrested for Class C misdemeanors. This is the first round of reports with the new data elements included.

    Most media coverage of these reports so far has focused on racial disparities in traffic stops and searches. But Grits thought it worthwhile to focus on the new data reported. Grits created a spreadsheet with info from 4.6 million traffic stops from 38 of the largest Texas jurisdictions, calculating the rate of use of force, arrests for Class C misdemeanors, and arrests for outstanding warrants. (Among the largest jurisdictions, Fort Worth PD has not yet submitted a report.)

    The reports evidenced wide variation among agencies. Let's start with use-of-force rates at traffic stops.

    As mentioned in the lede, drivers stopped by Austin PD were far and away more likely to have police use force against them than any other agency, at 77 times per 10,000 stops. Houston PD was next, with a much lower rate at 53 per 10,000. After that were Denton PD (42), Corpus Christi (24), and Texas DPS (17), with rates headed south from there.

    Austin police use force at traffic stops more than four times as often as state troopers, and at 20x the rate of the San Antonio PD! That's a big outlier.

    Looking at arrest rates for Class C misdemeanors, Waco PD leads the pack, arresting 451 drivers out of every 10,000 traffic stops. (Amazing: That's nearly one in 20 drivers!) Following Waco, departments arresting the most people at traffic stops for Class Cs were League City (406), San Antonio (246), Odessa (236), Killeen (181), Lewisville (172), Beaumont (153), Houston (150), Midland (142), and Austin (124).

    Finally, some cities focus a great deal on arresting folks with outstanding warrants for traffic tickets (this will be mostly a simple nonpayment issue), while others hardly ever arrest drivers they pull over for traffic warrants. Arlington appears to almost never enforce warrants at traffic stops, while Beaumont, Killeen, Midland, League City, and Austin top the list of jurisdictions making the most such arrests per 10K stops.

    Notably, Austin PD stands out among the worst in each category: Most likely to use force at traffic stops; in the the top five on arresting for outstanding warrants; and in the top ten for arresting drivers on Class C misdemeanor charges. The city has a reputation as liberal, but these data evidence quite authoritarian policing practices compared to other large Texas jurisdictions.

    However, this isn't just a capital-city story. For Texas reporters and advocates reading this, the new racial-profiling reports present an opportunity for localized focus on use of force and Class-C-misdemeanor arrests in a way that previously wasn't possible. This is information to which no one had access before! (If your local agency isn't on Grits' spreadsheet, look them up here.) As such, there's a lot more to learn than the highlights conveyed in this blog post. I'm sure Grits will return to these data soon.

    Thursday, March 07, 2019

    A tale of two approaches to Texas property-theft thresholds

    A pair of bills heard in two Texas House committees this week demonstrate opposing philosophies when it comes to incarcerating people for low-end property theft.

    At Monday's Texas House Criminal Jurisprudence Committee hearing, state Rep. Gene Wu, a Houston Democrat, proposed HB 760 making theft of packages delivered to someone's front porch an automatic state-jail felony, even if the value of the stolen items were just a few dollars. Wu said this was justified because going onto someone's porch was a particularly egregious invasion of privacy. State Rep. Andrew Murr suggested expanding the bill to make it a state-jail felony to steal anything out of someone's yard or driveway.

    State-jail felonies are essentially Texas' version of a fourth-degree felony, punishable by 180 days to 2 years incarcerated, served day for day without parole, with fines up to $10,000. Under current law, thieves must steal $2,500 or more worth of goods to reach that threshold in Texas; below that, theft is a misdemeanor.

    There are still pockets of particular types of theft scattered throughout Texas' criminal code exempted from the 2015 thresholds. E.g., it's still a state-jail felony to steal "less than 10 head of sheep, swine, or goats." So, steal a couple of goats worth $40 apiece - which would be a Class C misdemeanor in terms of value - and it's an automatic felony. Switch price tags to reduce the price of a hammer at the hardware store - automatic Class A misdemeanor. Since the passage of Texas' new property-theft thresholds in 2015, legislators have continued the effort by applying them to additional theft types. E.g., in 2017, another bill by Konni Burton applied them to check forgery.

    Just Liberty opposed HB 760 in committee and followed up this week walking around a handout to committee-members' offices opposing the bill. Our fear is that it would ramp up state imprisonment for property theft during an era when it's been rapidly declining. Give our handout a read.

    Porch piracy is a function of consumers seeking convenience. People want products delivered to their homes, and don't want to wait around the house to sign for them. But convenience can come with trade-offs, both in terms of consumer privacy and security. When commerce occurs in a commercially zoned location, retailers employ loss-prevention specialists and a certain amount of low-grade shoplifting is considered a cost of doing business. Move commerce to your front porch and no one should be surprised if consumers face the same low-grade theft problem witnessed at retailers.

    Wu compared porch piracy to burglary of a habitation, saying if it were made a state-jail felony, police would take it more seriously and investigate. But home burglaries have among the lowest clearance rates of all index crimes, often in the 10-12 percent range. There's scant evidence making the punishment for such crimes harsher makes them any easier to solve.

    There's also no evidence to support his inference that public pressure couldn't convince police to change their priorities and investigate porch-piracy incidents, especially as cameras proliferate, making them easier to pursue. IRL, police are remarkably responsive to such pressure. Maybe not in every instance, but in aggregate, for sure.

    By contrast, in the Business and Industry Committee on Tuesday, Rep. Matt Shaheen, a Plano Republican, proposed legislation Just Liberty supported, HB 427, which would apply the property-theft thresholds to theft involving price-tag switching. This is a less-frequently seen brand of shoplifting, essentially, which occasionally can reach grandiose levels but is more often an impulse crime committed in a moment of human weakness.

    Presently, price-tag switching on low-value items garners an automatic Class A misdemeanor, punishable by up to a year in county jail and a $4,000 fine. Shaheen's bill applies the property-theft thresholds Texas passed in 2015 to such crimes, so that the theft only becomes a Class A misdemeanor if the person is stealing more than $750. Remarkably, the bill faced no opposition in committee.

    This blog has opposed criminal-penalty enhancements for more than a decade, and in recent years we've seen new allies step up like the Texas Public Policy Foundation criticizing the idea that criminal-penalty enhancements are a one-size-fits-all policy response to any objectionable behavior. Juxtaposing these two pieces of legislation provides a good demonstration of 2019 public-policy debates in Texas regarding punishment of property theft.

    Shaheen's bill continues efforts to reduce incarceration for low-level theft begun by Republican state Sen. Konni Burton, who was ousted by Democrat Beverly Powell last November.

    By contrast, Wu's HB 760 evinces an old-school, tuff-on-crime mindset: Don't like a petty but annoying behavior? Throw government resources at the problem till it goes away. (And then, pretend you're surprised when the behavior inevitably persists.)

    To be fair, Wu has supported other criminal-justice reform legislation in the past, particularly on juvenile matters. But the last thing Texas needs is a new law filling up prisons for low-grade property theft. Shaheen's approach makes more sense. Legislators shouldn't begin carving out exceptions to property-theft thresholds just two sessions after enacting them. Consolidating all the various brands of theft to apply the thresholds across the board is the better approach.

    Wednesday, March 06, 2019

    TX marijuana reform news, notes, and questions

    Grits' analysis of prospects for marijuana penalty reform haven't changed since the beginning of the legislative session. Full-blown Colorado-style legalization is off the table this year, but penalty reduction for user-level marijuana possession has an excellent chance.

    The Republican Party in its platform has endorsed one proposal making possession of up to one ounce of marijuana a civil penalty, a measure embodied in Speaker Pro Tempore Joe Moody's HB 63, which received an early hearing this week. Watch the hearing here; the discussion of HB 63 begins at the 41 minute mark.

    Meanwhile, Governor Abbott has endorsed reducing the penalty for up to two ounces of pot to a Class C misdemeanor, which is a fine-only offense usually handled with a written citation.

    Those remain the two, competing proposals with the best chance of passage. And the civil-penalty idea is getting a head start in the House with a strong, early hearing. Plus we're gaining a little new information as the process moves along. Here are several, disparate, pot-related items I wanted to record at this point in the process which merit Grits readers' attention:

    First, the Texas Observer best-in-state coverage of Monday's hearing was titled "Third Times' a Charm," which is certainly the case for Speaker Pro Tempore Joe Moody's bill providing civil penalties for pot. His was a fresh approach to an old problem. But it's worth remembering that legislation to reduce penalties for low-level marijuana possession, as Governor Abbott endorsed, first (unanimously) passed out of the House Criminal Jurisprudence Committee in 2005. The bill simply has never been blessed by House leadership to receive a floor vote, even though most vote counters believe it would overwhelmingly pass.

    Another tidbit from this Texas Tribune story, an updated estimate of the number of annual marijuana arrests: "According to the Texas Department of Public Safety, roughly 379,000 Texans have been arrested for possessing 2 ounces or less of marijuana in the past five years." That's 75,800 people arrested per year, more than has sometimes been reported.

    Moreover, the Trib reported, "In Dallas County, newly-elected District Attorney John Creuzot said his office is currently declining prosecution for first-time marijuana possession offenders." Creuzot is the first Texas DA to go that far. Here's hoping he won't be the last, and that he'll expand the non-prosecution policy to other victimless crimes like Driving With License Invalid (DWLI).

    In San Antonio, DA Joe Gonzalez aims to fix a broken, unused cite-and-release system for pot possession and theft of service, eliminating a $250 fee that kept people from using it, the Express-News reported. (He is also becoming a vocal proponent of bail reform.)

    No companions have been filed in the Senate to either Moody's bill or the competing penalty-reduction legislation, although there are still a couple of days left to sneak one in under the wire. (See the comments.) But especially with Moody's bill getting an early start, it appears the marijuana reform action will begin on the House side this year. That suits me fine. I don't doubt for a moment there are sufficient votes on the House floor to pass it.

    Unanswered questions: There are many.

    Will the House Criminal Jurisprudence Committee Chairwoman Nicole Collier also hear legislation promoting Gov. Abbott's version of reform, or was the early promotion of HB 63 a signal that she prefers that method?

    Will Gov. Abbott acquiesce in a GOP-platform endorsed alternative (HB 63) to his own idea, or threaten an unpopular veto?

    If Moody's bill comes over from the House with the GOP-state platform's imprimatur, will Lt. Gov. Dan Patrick, a champion of the platform on other topics, shut it down?

    There's many a slip twixt the cup and the lip, as my late grandmother used to say. And while there are positive signs this year for reducing user-level marijuana penalties in Texas, there are also a lot of things that could go wrong if key actors aren't willing to compromise.

    Grits prefers the Moody bill, but the Governor's proposal would be a huge improvement and I've supported his suggestion many times in past legislation, back before marijuana reform became the Flavor of the Month. Either approach would be a big improvement and I hope legislators, the Governor, and everyone else with competing proposals can agree on a path forward.

    Monday, March 04, 2019

    Funding needed to bolster Office of Capital and Forensic Writs

    My Reasonably Suspicious podcast co-host, Amanda Marzullo, who is the executive director of the Texas Defender Service, asked me to publish this guest blog post she authored advocating for expanded resources for the Texas Office of Capital and Forensic Writs. Give it a read:

    Members of the Senate Finance Committee’s Article IV Subcommittee should take a lead from their counterpart committee in the House  and adequately fund the Office of Capital and Forensic Writs (OCFW), which has been under-resourced since its inception in 2010.

    The office represents people on death row in constitutional claims relating to their conviction or sentence. The post-conviction writs filed by OCFW, often composed of hundreds of pages and years of work, ensure our system is fair and helps us avoid the most serious of mistakes.

    Importantly, counties are on the hook for most costs of post-conviction representation when OCFW is not able to handle a case. The OCFW seeks funding from the Fair Defense Account, a General Revenue-dedicated fund which can only be spent on indigent defense expenses.

    Each session, the head of OCFW reports that staff is over worked and underpaid—even by government public service standards. Lawyers in this office handle 8.5 capital cases on average, which is about 70% higher than their counterparts in other Texas post-conviction entities, where attorney workloads are capped at 4 to 6 cases—depending on the size of a case’s record and the issues that require research and investigation. OCFW attorneys at this office are also paid significantly less than lawyers at other entities, which prevents the office from hiring and retaining experienced lawyers. For example, the State Prosecuting Attorneys Office, the Capital Habeas Units of the Federal Public Defender Offices in Dallas and Austin, and the Regional Public Defender for Capital Cases in Lubbock are all able to pay their lawyers 40-50% more on average than the OCFW.

    Given this backdrop, it’s hardly surprisingly that the office struggles with high attrition rates. Since it opened its doors nine years ago, 27 staff members have departed from its payroll roster, which currently includes just 16 people. Such high turnover impedes their representation, and ultimately, may lead to a new grounds for appeal in federal court.

    Finally, and perhaps most importantly, the House Appropriations subcommittee voted to provide funding for the office’s expansion into forensics writs.  Readers of the blog will remember that legislature directed the office to handle non-capital junk science cases that are referred by the Forensic Science Commission two sessions ago through legislation sponsored by Senator Hinojosa. Yet, to date, the legislature has not allocated one iota of funding for these cases. Funding for these cases and the OCFW simply makes sense.

    Pot debate at #txlege launches early, Soldiers as cops?, Tailoring corrections practices to women prisoners, and other stories

    At the Texas Legislature this week, criminal-justice bills are finally being heard, although not yet in all committees, and all on the House side. Most of the major legislation remains to be seen; some of it has yet to be filed. Excepting marijuana discussions described below, all the biggest #cjreform debates of the session are all yet to come. But here are a few mostly-small bills up in committee this week that deserve Grits readers' attention:

    Marijuana reform debate launches early
    This afternoon, the House Criminal Jurisprudence Committee launches the first volley in what's sure to be a lively debate over marijuana policy, considering Speaker Pro Tempore Joe Moody's HB 63 reducing possession of less than an ounce of pot to a civil penalty punishable with a ticket/fine up to $250. Notably, Moody's proposal more or less matches what the state Republican Party platform endorsed last year (the GOP said the fine should be $100). Meanwhile Gov. Greg Abbott has endorsed reducing criminal penalties for possessing up to two ounces of pot from a Class B to a Class C misdemeanor. That's close but not exactly similar to state Rep. Alma Allen's HB 371, and rumors are flying that we may yet see another bill closer to the Governor's approach. (See Grits' earlier discussion of the competing proposals and the implications.) Chairwoman Nicole Collier's elevation of the Speaker Pro Tempore's bill to her committee's first substantive agenda means this debate launches early. For Grits part, I prefer Moody's bill but support either approach compared to the status quo.

    Mandatory felony for porch piracy?
    In the same Criminal Jurisprudence Committee hearing as the marijuana debate, Houston Democrat Gene Wu has proposed a bad bill making the theft of any package delivered to someone's front porch an automatic state jail felony. To be clear, if the value of the item stolen is more than $2,500, it's already a state jail felony. But Wu wants to create new mandatory minimums for all stolen packages. As I was writing this, my wife passed by and I asked her the last thing we purchased from Amazon. Her reply: Some dry-erase markers and a book my granddaughter needed for a middle-school class. Definitely not worthy of a state-jail felony.

    Switching up punishments on price-tag switching
    State Rep. Matt Shaheen, a Republican from Plano, has a small-but-interesting penalty-reduction bill up in the House Business and Industry Committee on Tuesday that's the philosophical opposite of Wu's porch-piracy bill: HB 427 would apply the property-theft thresholds increased by the Legislature in 2015 to the offense of price-tag switching, which right now is a Class A misdemeanor regardless of the value of the item. The new law would have price-tag switchers charged based on the value of the stolen item, whereas Wu wants the Legislature to ignore the new property-theft thresholds when it comes to stolen Amazon packages.

    Soldiers as Cops
    HB 971 (Clardy), up in the Homeland Security and Public Safety Committee on Wednesday, would let former military personnel substitute military service for police-officer training. With only narrow exceptions (e.g., markmanship) Grits wouldn't consider it even remotely proper to allow such substitutions. "Soldier" and "police officer" are quite different jobs.

    Corrections Committee to focus on women and kids
    House Corrections Committee Chairman Chairman James White has a pair of bills up in his committee on Thursday. HB 659 would require TDCJ to count and report the number of prison inmates with children "of any age." But that stops short of actually identifying minor-age children who might benefit from provision of services, or facilitating kids' access to their incarcerated parents. In that sense, the bill's a disappointment. The legislation resulted from one of the committee's interim charges, but doesn't go as far as discussed during the interim. (See Grits' write-up here.)

    Tailoring corrections practices to women prisoners
    Another chairman's bill up in Corrections this week, HB 650, would require TDCJ to provide feminine hygiene products (defined  as products whose "principal purpose" relates "feminine hygiene in connection with the menstrual cycle") to indigent women inmates in TDCJ free of charge. The bill requires guards in women's prisons to receive training related to pregnant inmates and for the women to receive education about their pregnancy, parenting skills, medical and mental health issues, etc.. The bill mandates that women (only) with children under 18 must be allowed up to two contact visits per week with them. Wardens can restrict this access based on security concerns. (Question: If we're not going to track which kids belong to which parents under HB 659, how can they decide who is entitled to two visits per week under HB 650?) The bill requires female guards to perform body cavity searches of women inmates, with limited exceptions, and institutes special nutrition requirements for pregnant women. The bill also ensures women who give birth in TDCJ can spend 72 hours with their newborns before they're taken away.

    More people may seek restoration of civil rights bc of bill to expand clemency access
    Juvenile Justice and Family Matters Committee Charman Harold Dutton has HB 573 up in House Corrections this week to let people who've completed their state prison sentence and waited three years to apply have their civil rights fully restored. Interesting bill, even if Grits isn't completely sure I understand all the implications. This is a rarely used clemency process that requires the governor's sign off, and it's been many decades since Texas had a governor willing to indulge anything more than an occasional, symbolic use of clemency powers, plus a few folks found actually innocent by DNA evidence and/or the courts.

    Seeking to stop sex offenders seeking pen pals
    Finally, Rep. Matt Shaheen has HB 428 up in House Corrections this week forbidding sex offenders incarcerated in TDCJ from soliciting pen pals on free-world web sites, even if someone else does the posting, pays the fees, etc.. But it's a strange ol' world, this practice is more common than the uninitiated might expect, and Grits is unwilling to condemn every such communication as lacking value. As long as there's transparency, I'm not sure I see a problem that stamping "Correspondence from a Registered Texas Sex Offender" on the outside of every outgoing envelope wouldn't solve. Last session, the same committee approved a similar bill but it never received a vote on the House floor.