Monday, June 10, 2019

86th Texas Lege a killing field for #cjreform

Having mentioned a handful of #cjreform victories from the 86th Texas Legislature - most notably, by far, abolition of the Driver Responsibility surcharge - we must also acknowledge that the session overall was a major disappointment for anyone interested in reforming the justice system.

Heading into the session, there was cause for optimism. In the Texas House, Speaker Joe Straus for a decade had refused to let #cjreform legislation receive floor votes, while Speaker Dennis Bonnen was much more willing to let members vote on significant reforms. The Governor had endorsed both bail reform and reduced marijuana penalties. And both party platforms had endorsed important reform proposals that entered the session with bipartisan support.

Accentuate the positive
Once the session began, however, it became clear the Senate in particular was all but a lost cause. Senate Criminal Justice Committee Chairman John Whitmire spent more time shooting down reform legislation than promoting it. (We must accept that raise-the-age and police transparency legislation, for example, will never receive hearings, much less pass, as long as he chairs that committee.)

Reformers have lost all our senate champions over the last few cycles - nobody has stepped up to replace Rodney Ellis or Konni Burton's work on these issues - and Lt. Governor Dan Patrick remains hostile even to minimalist reforms, like reducing pot penalties.

Indeed, since Patrick took over the role of Senate President in 2015, Texas has seen scarce little reform legislation compared to, say, 2007-2013, when an array of decarceration and innocence reforms established Texas as a national #cjreform leader.

These days, the Lone Star State can no longer claim that mantle. Not only has California decarcerated more significantly than Texas (with the help of federal litigation, to be sure), but since 2014, Oklahoma, Utah, Alaska, Connecticut and Colorado have all reduced user-level drug possession to a misdemeanor. Texas has never even seen such legislation get out of committee, and this session nobody even tried. Past efforts had evinced tepid support in the House, and the bill clearly could never even be debated in the Texas Senate under the current leadership.

Grits can think of only five significant #cjreform bills passed in Texas since Dan Patrick became Lt. Governor: 1) increasing property-theft thresholds (which happened in 2015 via amendment, not a bill), 2) eliminating the "key man" system for grand-jury selection (we were the last state to do it), 3) the 2017 Sandra Bland Act (which had the most popular provision that would have saved her life stripped from the bill), 4) debtors-prison reform legislation in 2017 that made it easier for judges to waive fines (though still, 10x as many are jailed as have them waived), and 5) this year's abolition of the Driver Responsibility surcharge, an effort 12 years in the making.

While these were not insignificant bills, they're definitely overshadowed by accomplishments in other states.

Beyond that, the capitol grounds are littered with the corpses of modest, bipartisan #cjreform legislation, much of which would have relieved pressure on cities and counties at a time when the Legislature also restricted their revenue. Here are some of the decarceration measures the Legislature failed to pass:

Reducing marijuana penalties
This passed the House with overwhelming support and would have eliminated around 75k arrests per year, as well as the resulting incarceration stints. But Senate Criminal Justice Committee Chairman John Whitmire and Lt. Gov. Dan Patrick were quick to shoot down the idea and declare it would never be heard in the Texas Senate.

Limiting Class C misdemeanor arrests
House Democrats famously shot themselves in the foot, killing legislation that, had it been law at the time, would have prevented Sandra Bland's arrest, incarceration, and ultimately her death. Statewide, there were about 76k Class C arrests in 2017, extrapolating from primary research by Texas Appleseed. In Austin, where police implemented a policy on Class C arrests that complied with the proposed law, arrests declined by nearly two-thirds. If that proportion held statewide, the law would have prevented 45-50,000 arrests per year.

Reducing DWLI penalties
Although the Driver Responsibility surcharge has been abolished, 1.5 million people still have their licenses suspended because of it. And when they're caught driving without a license a second time, they're charged with a Class B misdemeanor, meaning police arrest them and counties must pay for incarceration and indigent defense costs. HB 372 (Allen) got out of committee this year but the House Calendars Committee never gave it a floor vote. According to the Office of Court Administration, there were 22,427 new Class B DWLI charges in 2018. Her bill which would have changed the penalty to a Class C - would have prevented most arrests for this low-level administrative violation.

Eliminating debtors-prison practices
Regular readers know that more than a half-million Texans last year sat out their Class C misdemeanor fines in jail, while roughly a tenth of that number had their fines waived for indigence. Rep. James White filed legislation to stop arresting people who don't pay Class C fines and using commercial collection practices instead, a measure endorsed in both the Republican and Democratic Party state platforms. But heated behind-the-scenes opposition made it clear the bill faced trouble this year and likely couldn't make it through the gauntlet. So Chairman White "substituted" in the language from Sandra-Bland bill, discussed above, after Homeland Security and Public Safety Committee Chairman Poncho Nevarez refused to give Senfronia Thompson's HB 482 a vote in his committee. In the end, debate over the original bill was vigorous, but never public. But a lot of intelligence was gained to promote the idea again in two years.

Bail-reform blues
Bail reform died, but that's probably a good thing. As Grits has described previously, the legislation in play failed to address constitutional concerns arising in federal litigation, and created a new, politicized advisory panel to monkey around in what should be evidence-based risk assessments. Texas is MUCH better off waiting to see what the courts do on this before legislating. Texas needs bail reform, but only if it's done right. This legislation was a hot mess.

In addition to all the bills dying that would have reduced incarceration in county jails, measures to limit state-prison intake numbers also foundered:

Three-strikes misdemeanor theft
Three-strikes theft reform (HB 1240 by Davis) was another good bill that died in the Calendars Committee without a floor vote. Presently a defendant's third misdemeanor theft may be automatically "enhanced" (read: increased) to a state jail felony, regardless of the item's value. This legislation would have scaled back the enhancement for lower-value items to go up only one category - e.g., theft of a Class-C-value item would be enhanced to a Class B, not a state jail felony. This legislation sailed out of committee and appeared to be doing fine until Dallas DA John Creuzot announced his own decarceration initiatives mid-session. One of them was that his office would use discretion not to prosecute people stealing personal items with no intent to sell them or profit. The Governor proceeded to go into full-demagogue mode, and his agents killed the bill in the Calendars committee.

Probation reform
A modest probation reform bill passed the House which looked for a moment like it had legs. Chairman Whitmire had filed the companion bill, and his former staffer Terra Tucker was promoting the bill for the Alliance for Safety and Justice. But Whitmire never gave the bill a hearing in his own committee, even though it cleared the House with plenty of time to pass. Further evidence the Texas Senate has become a black hole for #cjreform.

Pretrial diversion nixed
An agency bill proposed by the Texas Department of Criminal Justice would have expanded pretrial diversion programming in ways that would have an undetermined but not insignificant de-carceral effect. The bill passed out of committee but died in Calendars without receiving a floor vote in the House.

Motion for a new trial
This one still has me fuming! HB 4202 (Smithee) was an elegantly designed bill which would have allowed for out-of-time motions for a new trial in cases where someone is sentenced to more than three years if the prosecutor and judge agree. Cases could either be dismissed or new sentences agreed upon. Debates surrounding the bill centered mostly on innocence cases - particularly the Houston drug convictions based on faulty field tests - but it also could have implications for people with unreasonably long sentences or even problematic death-penalty convictions. Astonishingly, this gem of a bill passed the Texas House with NO ONE voting against it! It cleared committee 9-0, passed the House 142-0, but never received a hearing after it was referred to the Senate Criminal Justice Committee. Another black-hole victim.

Earned-time Credits
After Donald Trump signed the First Step Act, which included provisions to give more generous "earned time" credits to offenders who demonstrate good behavior or diligent participation in programs, some observers hoped similar legislation in Texas might get a boost. But HB 1271 (S. Thompson) never earned the votes to make it out of the House Corrections Committee. While most decarceration bills in Texas have been aimed at lower-level non-violent offenses, this bill would (modestly) chip away at incarceration rates for people convicted of violent crimes whose only chance at release is parole. It also would provide new tools for administrators to punish inmate misbehavior, incidentally, as credits earned can also be taken away. Taking a few weeks or months off of the longest TDCJ sentences in exchange for pro-social behavior inside should be a no-brainer, from a corrections-best-practices perspective. But legislators remain fearful to do anything that might benefit anyone convicted of a violent crime, which is to say, a majority of Texas prisoners.

Other justice-reform legislation also fared poorly:

Death Penalty
The Texas House passed legislation to fix the state's unconstitutional standard for executing intellectually disabled people and another bill addressing capital punishment for people with severe mental illness. But the Senate radically watered down the ID bill and the two chambers couldn't come to an agreement. After the SMI bill passed the House, the Lieutenant Governor never referred the bill to committee; another black-hole victim.

Closing the 'dead-suspect loophole' to the Public Information Act
After Speaker Pro Tempore Joe Moody amended his legislation to close the "dead suspect loophole" to the Public Information Act to a Senate bill by Kirk Watson that restricted records access, the Austin senator refused to concur and took the bill to conference, where Moody agreed to strip it off. The amendment was the subject of an intense lobbying campaign by police unions, and in the quarter century I've known him, starting as Austin's mayor, Watson has never bucked their agenda. It's little surprise that this time was no different.

Transparency for police misconduct
Thirty years ago, police unions convinced the Legislature to exempt personnel files at around 70 out of 2,500 law enforcement agencies from the Public Information Act if they had opted into "civil service" provisions of Chapter 143 of the Local Government Code. But after the Lege passed the Michael Morton Act in 2013, it became apparent this provision was allowing police departments to withhold evidence of prosecutor misconduct even from District Attorney offices, leading to egregious miscarriages of justice. Sen. Juan "Chuy" Hinojosa filed SB 433 to fix the problem, but it couldn't get a hearing in Whitmire's Criminal Justice Committee.

No A/C expansion for Texas prisons
A bill that began as a suggestion to provide air conditioning to Texas prisons became a bill to study the issue, then even that couldn't pass. Grits has said for years that only federal litigation will force Texas to do this, certainly as long as John Whitmire chairs the Senate Criminal Justice Committee.

Personal location data remains poorly protected
In the wake of the US Supreme Court's Carpenter decision, the Texas Senate approved one of the few reform bills to come out of that chamber this year requiring law enforcement to secure a warrant to access personal cell-phone location data from cell-service providers, including both historical and real-time data. But Google and Facebook intervened in the House and the legislation died in the committee. Apparently they objected to transparency provisions that would let Texans know how often law enforcement access location data they hold about users. That's understandable - IMO people would be shocked if they knew how frequently law enforcement accesses that highly personal data. And the Texas Court of Criminal Appeals is doing all it can to limit the extent to which Texas state courts require warrants under the Carpenter ruling. But in Grits' view, the tide of history is against them. This legislation would have prevented a lot of headaches.

Grits could go on. In many ways, the abolition of the Driver Responsibility surcharge was the biggest #cjreform success in years. But it was a lonely victory, and the dynamics on most other topics makes it difficult for reformers to muster a sanguine outlook for the near future without unforeseeable changes in the Texas Senate.

RELATED: In an assessment Grits would generously call putting lipstick on a pig, the Texas Criminal Justice Coalition counted 79 "positive" bills which passed, a prospect at which they declared they were "thrilled." Beyond the ones mentioned in this post, however, from a decarceration/civil-liberties perspective, most of them were big nothingburgers, or else agency bills with which the #cjreform movement had little to do. I suppose one can look at many of those bills as modest incremental reform - a few more than others - but Grits comes from a school in which one claims no easy victories. The most important stuff, beyond surcharge abolition, all was lost.

AND MORE: See Texas Monthly's biting Worst-Legislators installment for Sen. John Whitmire.


Gadfly said...

AS you note, Whitmire had long been part of the problem. When will Dems primary him?

Jason Kercheval said...

I might point out that there were some important updates/corrections to the law regarding Veteran's Treatment Courts (HB 2481), much of which I wrote or helped write. There were some provisions I wanted to be added as well--namely reducing prosecutors' sole discretion about whether an otherwise qualifying veteran would be accepted into the program, but the changes that WERE made were positive and will significantly increase the ability of justice-involved veterans with qualifying diagnoses to get help without permanently harming their future.

Anonymous said...

HB 3920 ( would have created an independent Inmate Legal Services Office to replace State Counsel for Offenders and represent inmates accused of committing a crime in prison. The bill got a last minute hearing in the House Criminal Jurisprudence Committee where it died. State Counsel's problems have been documented by the State Bar of Texas Legal Services to the Poor in Criminal Matters ( and the Texas Observer ( Hopefully the issue will get an interim charge.

Anonymous said...

John Whitmire is not the Dean of the Senate for no reason. His common sense and pragmatic approach to what will and won't work in Texas--as opposed to jumping on every flavor or the month CJ "reform" proposal--is refreshing. Most of the proposals mentioned in this post had the potential for serious unintended consequences. Thank you Sen. Whitmire for your leadership.

Anonymous said...

If Whitmire were running for office today for the first time he'd be a Republican and would lose badly in the district he's in. His comments on the death penalty sound like an old Dixiecrat. Time for him to retire and let a new generation take the reins. At this point, he's destroying his legacy.

Anonymous said...

I'm still bitter about the restorative justice bill that actually passed four years ago that the governor vetoed. That would have made some difference in a number of jurisdictions.

Anonymous said...

"86th Lege a killing field for #cjreform" is a very good headline and description of this session regarding Corrections/Criminal Justice. For all the hype leading up to the 86th session very little was done to address issues.

Anonymous said...

Another example of death by committee was much-needed amendment of the death penalty sentencing statute. The statute leaves jurors with a false impression of how many votes are needed in order for a life sentence to result, and forbids counsel or the judge from informing the jury about what happens if there is a single holdout juror, although the law is that a life sentence will then result. Sven Berger, who served as a juror in a 2008 capital murder trial, spoke out when Paul Storey, the person he had helped sentence to death, was facing execution. Berger explained he had taken the jury instructions at face value and believed that he had no choice. Berger had not wanted to sentence the defendant to death because of his impression that the defendant would not be “a future danger to society.” But because a majority of the other jurors had wanted to vote for death, he had acquiesced. Believing that he could not sway the other jurors to change their votes, Berger reluctantly assented. Because of the language in the jury instructions, he did not realize that his vote alone could have blocked imposition of a death sentence and resulted instead in a sentence of life in prison without the possibility of parole. In a recent edition of the radio program “This American Life,” Mr. Berger explained his misunderstanding of his role. See Berger described being haunted by his experience with the Texas death penalty statute; and, ultimately, he was inspired to speak out. Sven Berger’s outreach prompted three Texas legislators to file a bill in the 2017 Legislative Session to change the statute that keeps this critical information from jurors. See H.B. No. 3054. The Bill was reported out of committee but died waiting to be placed on the Calendar. The committee had voted 6 in favor and only 1 against, a noteworthy result from a predominantly conservative, Republican committee. Similar bills were promulgated in the 2019 Legislative Session. See Tex. H.B. 1030, 86th Leg., R.S. (2019) and Tex. S.B. 716, 86th Leg., R.S. (2019). H.B. 1030, which would have removed the “10-12" rule, passed the full House by a vote of 133 to 10, but neither bill progressed beyond the committee stage. So, for the time being, Texas can continue to trick jurors about their ability to vote for life.

Anonymous said...

One would think that John Whitmire of all people would have been pushing for some of the CJR measures that were presented in the latest lege session. I've never been a fan of his for the very reason that he appears to be more of an obstructionist on meaningful reform legislation. The header of the 86th Texas lege being a killing field for meaningful #cjreform is spot on. But once again, Whitmire does what he has done so many times in the past, he talks the talk but he doesn't walk the talk.

Unknown said...

If State Rep Whitmore had any guts he would have pushed the bill, for oversite on TDCJ for a better parole system. Most inmates are denied parole on The nature of Offense", which will never change. The parole board tries to keep the prisons full, for free labor. This is a severe injustice, in the USA. We are better than that!!!! Inmates always get severe sentences, more than any state in the USA. My family lives in Texas and they belong to a group that is keeping up with the Elected politicians that do not help their loved ones in TDCJ and plan on voting them out, they plan on voting for Beto, who has a better understanding of what laws need to be changed for Texas inmates.