Sunday, June 20, 2021

Abbott vetoes demonstrate continued antipathy toward #cjreform, bootlicking toward police unions

My better half, Kathy Mitchell, posted this on Facebook about Gov. Abbott's criminal-justice vetoes, and since I hadn't written anything on the subject yet, with her permission I'm re-posting it here. For a more sanguine perspective on what Grits has called the worst Texas legislative session on criminal justice in the 21st century, see Marc Levin's column in the SA Express News summarizing everything that passed which reformers might consider a (small) victory. Rep. Pacheco's HB 385 may be the most important of the bills that made it through (congratulations to Terra Tucker, who shepherded it through on behalf of the Alliance for Safety and Justice). But even this was small potatoes, especially in the watered down form in which it passed the Senate, compared to major reforms in years past or even that passed the House this time.

By contrast, most of the big stuff never made it to the governor, and here's how Kathy described the reform bills Abbott vetoed:

The Governor's vetoes are a final punch in the nose for the bipartisan criminal justice reform movement, and a clear reminder (in case we forgot for a second) that the 87th from start to finish has been mainly about Abbott's re-election on a platform of "tuff" on the poorest and most desperate among us.
Abbott vetoed SB 237, predictably, after announcing that he was clearing out a prison to hold migrants arrested for trespassing by his promised army of troopers. That bill would have added criminal trespass to the list of Class B offenses for which an officer could (discretion only) issue a citation instead of arresting.
Abbott vetoed HB 686, juvenile "second look" after even Dan Patrick found a version he could live with. The final bill allowed a person who committed a violent offense as a kid to get a review and possible release (just the possibility, that's it) after serving at least 30 years. Hardly soft on crime, and a bill supported by the Catholic Conference of Bishops, TPPF, Goodwill, United Way and a host of others. Who opposed? Only Ray Hunt on behalf of the Houston Police Association. Hmmmm....
Abbott vetoed HB 1240, a bill with no formal opposition at all. That bill would have authorized fire inspectors to issue citations over fire code violations the way health inspectors do. Apparently now, you have to be a sworn police officer. A bill that would have empowered other public safety agencies to make the public safer without having to use police....Hmmmmm....
Abbott vetoed SB 281 that would have finally ended a police investigative technique from the 70s and 80s called forensic hypnosis. Which is pretty much what it sounds like. A "specially trained" police officer applies hypnosis to a witness or suspect and elicits, well mostly garbage. Because...hypnosis.
Finally, and this is the one that, for me, shows Abbott's hand. He vetoed HB 787 that would have allowed formerly incarcerated people and people on probation to get together (without violating terms of probation against fraternizing with criminals) for purposes of "(1) working with community members to address criminal justice issues; (2) offering training and programs to assist formerly incarcerated persons; and (3) advocating for criminal justice reform, including by engaging with state and local policy makers."
It appears that the voices of the formerly incarcerated were very effective this session, so we can't have any more of that.
I could not find any veto messages for these bills posted yet, just the fact of the veto listed on the Capitol website. So if the Governor has anything useful to say for himself, I'll add more later. For now, these vetoes kind of speak for themselves.

Monday, June 14, 2021

Travis County jail expansion makes no sense, so of course they might do it anyway

For many years, combating unnecessary jail expansion around the state was a central focus of this blog. But over time, the jail building boom relented and this blog roamed in other directions. So I'm surprised to find myself drug back into the debate on my home turf, with politicians I've known for years leading the charge to build new jail space Travis County doesn't need. I'd hoped we were past this.

The issue is construction of a new women's jail, a proposal originating in the county's 2016 strategic plan. The county will vote tomorrow on whether to spend $4.3 million to plan construction for a proposed $80 million women's jail expansion, though high construction prices due to recent commodity price spikes make it likely the costs would be higher.

But a lot has happened since 2016, most notably that the jail population has plummeted, starting before COVID then accelerating over the last year. County Judge Andy Brown and Commissioner Ann Howard have proposed a resolution to reevaluate the 2016 plan in light of current needs.

At this point, the jail is less than half full. Among women, most of them remain in the jail less than three days. Of the current population, only about 40 women have been incarcerated longer than that.

Spending $80 million on facilities that will mostly benefit so few women makes no sense. Yes, it's true bond money can only be spent on facilities. But bond PAYMENTS come from the same tax revenues that fund every other part of the budget. The idea that this investment doesn't compete with resources for services simply doesn't hold water and apologists for the new jail should stop saying it. We all know where the money to make debt payments comes from!

Even more disingenuous are those who raise the "murder spike" to argue for expanded jail space. Most murder suspects aren't women, and most people in jail aren't murderers. Anyway, the new facilities wouldn't be ready for four years! Short-term crime trends aren't an argument for long-term capital investments, especially when there's so much vacant jail space to begin with.

All sorts of factors have contributed to Travis County's jail population reduction and make it likely it will be sustained. Judges who began using more expansive pretrial release protocols to save lives during COVID say they largely intend to continue them once COVID abates. The county has largely ceased prosecuting marijuana cases, and many other nonviolent misdemeanors and low-level felonies are being handled through front-end, pretrial diversion. A new public defender's office is just getting set up but will soon provide more defendants better representation, making pretrial release more likely.

At a minimum, the jail population reduction in the five years since the 2016 plan provided breathing room for the county to reevaluate. Back then, the jail already had more people in it than it does today and lumber prices weren't through the roof. There's simply no need to build more jail space now and from a cost perspective, it's a bad moment to do so. Let the overheated lumber markets die down and give the system time to see if the reductions will be sustained. There's no immediate pressure to do otherwise.

In many ways, this is a bizarre debate. Usually, when Grits argues against new jail spending, jails are full and I'm suggesting diversion programs and cohorts of arrestees who can be safely released as an alternative to jail expansion. But in this case, Travis County faces none of those pressures.

Commissioners Shea and Travillion want to build a jail because the Sheriff wants it, not because the county needs one. But there's a reason the Texas constitution separates jail management functions from budget writing: It's the commissioners' job to vet such proposals, and any rational analysis of county needs argues against jail building right now.

We live in such an odd political moment. Jails are so expensive and cumbersome for counties, usually commissioners only want to build them as a last resort. To have self-avowed liberals wanting to build one when they don't need the space feels like a bit of a through-the-looking-glass moment. But for long-time observers, perhaps it isn't as surprising as it seems.

Liberals pushing to build a jail we don't need feels to me like a throwback to the Ann Richards era. Then, liberals championed prison building as a last ditch effort to stop the state from flipping to Republican control. Trying to "out incarcerate" Republicans didn't work then and it won't help today. Instead, it will dissuade voters Democrats need from coming to the polls at all. 

Jail opponents have presented the County with a robust set of alternatives that address Travis County's real needs -- build mental health crisis centers and intermediate treatment options, housing, substance abuse services and more. People like those ideas. They poll well. They actually work. Why not stop trying to out-Republican the Republicans and stand for something different?

UPDATE: After a fairly dramatic hearing in which three commissioners for a time appeared to lean toward moving forward, more than 100 speakers against from all walks of community life convinced them to delay the jail project for a year in a unanimous vote. This got uglier and weirder than it needed to be. Unless it was contractor-driven, I still don't understand the urgency behind jail proponents' push while the jail is half full. Glad they delayed it.

Thursday, June 10, 2021

Expungements for old weapons charges under Texas' new unlicensed-carry law could be widespread, but likely initially limited

Much have been made of the public-safety implications of Texas passing unlicensed-open-carry legislation (HB 1927) in the wake of mass shootings in El Paso, Odessa, and Sutherland Springs. But little attention has been paid to a provision in the bill allowing expunctions for past convictions for unlicensed carrying of a weapon (UCW, Penal Code 49.02). Rep. Senfronia Thompson added the amendment in the House, Charles Schwertner stripped it off in the Senate, then a narrower version was adopted in conference committee, expunging only UCW cases.

Even so, this is the most common weapons-related offense. In 2018, more than 13,000 Texans were arrested for UCW or some other weapons charge - about 48.3 weapons arrests for every 100,000 people.

Projecting backward, hundreds of thousands of people have likely been arrested for unlawfully carrying a weapon over the years, and now all those cases can be expunged.

Will they? That's another question. It's not automatic. People must file an ex parte petition with a district court to have their old conviction reviewed for possible expungement. So they'll need to hire a lawyer or possess the gumption to strike out on their own to tackle the job. Some will; most won't.

I'd love to see some advocacy group create a form ex parte petitioners could use to ask the court to expunge their old cases. (Hey, Texas Fair Defense Project and/or Civil Rights Corps, y'all up for this?) Prosecutors have historically fought expungement petitions - particularly on weapons charges - because they want to be able to use people's past crimes to seek enhancements or argue for harsher sentencing. But they don't have much grounds to oppose expungement in these cases; the law is pretty clear.

In the long, run, though, if legislators think these old convictions should be expunged, they should instruct it be done as a class. This provision will help a few folks but will mostly remain a symbolic gesture unless lawyers are paid to process the cases or expungement is made automatic.

Thursday, June 03, 2021

New TX homeless ban creates unfunded mandates for cities: Costs downplayed during #txlege process but cities must foot bill to store homeless belongings and can't limit arrests to ↓ costs

A Joint Memo From the Unintended Consequences and Unfunded Mandates Departments:

Now that the Texas Legislature has passed HB 1925 criminalizing homelessness (or more specifically, criminalizing cooking or sleeping under a blanket outside), cities must figure out how to implement the new law, which restricts their ability to limit arrests through policy.

Here's the catch: The statute requires police who arrest homeless people under this statute to take custody of their belongings and store them without a fee while they're in jail. Here's the relevant provision:

It's unclear if they must store people's stuff when arresting for unpaid warrants based on Class C tickets under HB 1925. If not, it would defeat the purpose of the provision: It's inevitable most folks who receive these tickets won't be able to pay.

Regardless, the bill forbids cities from establishing policies that limit these arrests, so if and when costs start racking up, the Lege will have taken away their ability to limit this expense.

Let's get down to brass tacks: Where will police take their belongings and what procedures will be put in place for them to be able to retrieve them later? Will they get a receipt? Where will police take their stuff? Who will be in charge of it while folks are jailed? How will  people retrieve it later and what happens when folks don't have good ID?

These are not idle questions: Most police evidence rooms are already overflowing (e.g., see this audit of the Denton PD evidence room, which is stuffed to the gills.) When I was policy director at the Innocence Project of Texas, evidence-room shortcomings emerged as a significant, hidden flaw generating all sorts of problems throughout the justice system: Evidence lost or damaged, guns stolen, DNA gone bad because it was kept at room temperature (that last one we fixed via legislation). The volume of stuff they keep track of boggles the mind, and housing all the earthly belongings of every homeless person arrested is going to overwhelm them.

So cities must create new systems, and probably find new locations, to store belongings of HB 1925 arrestees, but despite these extra costs, are forbidden from setting policies that limit these arrests/costs.

This is an unfunded mandate on cities and one assumes an unintended consequence, since the problem was barely-if-at-all discussed during the legislative process.

OTOH, if we're honest, the bill wasn't written to be good public policy or workable for cities, it was written to punish Austin and virtue-signal to the middle class against homeless people. They're doing it because they believe demonizing societal outcasts plays well in the suburbs, and it appears to be true, at least for the moment.

But whatever "signal" the new law sends to voters, it also lards new costs and responsibilities on cities big and small which they're both ill-prepared for and forbidden from managing. I called this an "unintended consequence" earlier, but that's probably generous. Governor Abbott and the Texas Legislature view putting the screws to cities as a legislative feature, not a bug.