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.

"Defund the police" is the new "Obamacare": The Texas #cjreform landscape post-election

Now that the most divisive presidential election in 50 years is over and, win, lose or (largely) draw, everybody can take a deep breath, it's time for criminal-justice reformers to peek our heads above the wreckage to see what remains of a state and local agenda after a tumultuous year and a grueling election season which, at the state level in Texas, resulted in a complete stalemate, from a partisan perspective.

Criminal-justice reform is the new Obamacare

It's been quite a year for criminal-justice reformers. And we've learned some things. Although the public doesn't like the phrase "defund the police," they tend to like all the policies that might allow police to be defunded. Grits sees this a bit like "Obamacare," which of course, really, was the "Affordable Care Act." Republicans branded it with a president who was unpopular with their base and then railed against it for years, passing dozens of weird, Pyrrhic votes to abolish it. For a while, "Obamacare" polled very badly.

But this election cycle, you saw bipartisan support in campaign commercials for most of the underlying policies "Obamacare" was about - particularly forcing insurance companies to accept customers with pre-existing conditions. That's because the policies being discussed had broad popular support. Opposition was largely based on a partisan strategy to misrepresent what the Affordable Care Act did in order to undermine Democrats and then-President Obama.

Similarly, the phrase "defund the police" polls badly (to the extent we should ever believe polls again - a topic for another day), but the policies of sending someone besides cops to respond to addiction, mental illness, and homelessness garner bipartisan support.

Austin's ballyhooed budget cuts

That makes Austin an important bellwether example, as the only city in Texas and one of the only cities nationwide to actually reduce its police budget (by 4.6%) and invest in alternative approaches.

Granted, in a year when COVID shrank local budgets everywhere, that's not much. It's in the ballpark of the 4% reduction approved by Greg Abbott and Dan Patrick in 2017 for the Texas Department of Public Safety, for example. But that didn't stop those two from parading around the state holding press conferences in police-union halls bashing Austin for being soft on crime.

Even as political theater, some of this was downright surreal: Like Abbott, Patrick, and damaged-goods House Speaker Dennis Bonnen holding a press conference in Fort Worth with the Mayor saying that city did it the "right way." But Austin still spends more per capita on police than Fort Worth, and their murder rate is much higher. Indeed, if Austinites were murdered at the same rate as the citizens of Cowtown, our annual murder tally would double!

Justice policy as political strategy

So why go to Fort Worth to hold a press conference telling Austin how to be more safe? Because of contested races in Tarrant County; no other reason. It was just a political tactic.

Did it work? Sort of. But it definitely cut both directions. According to an enormous national survey, about three quarters of all voters this year said the Black Lives Matter protests were a big factor in why they voted. The meme did inspire some Trump supporters, but Biden benefited more: "Among those who cited the protests as a factor, 53 percent voted for Mr. Biden, and 46 percent for Mr. Trump, according to the survey."

Houston police chief Art Acevedo blamed Austin's "defund" budget on Democrats' state House losses, but it didn't help local police-union bloviator Justin Berry, who ran on an anti-reform agenda and lost in a critical swing district Rs held a couple of cycles ago. In that race, the Democrat probably benefited from supporting police accountability.

Bashing Obamacare worked for a while, too, until it didn't. Ditto for bashing gay marriage before the Supreme Court took that issue off the table. Now it's criminal-justice reform's turn in the barrel. 

Look, there, over the horizon: It's hope!

And yet, Grits is largely more hopeful about criminal-justice reform than I was when 2020 began (at which time, admittedly, I was recuperating from throat surgery that left my granddaughter comparing me to "Nearly Headless Nick" from the Harry Potter series). 

After all, 2019 was the worst year for criminal-justice reformers at the Texas Legislature arguably in the 21st century. It was hard to see what if anything we had to lose; the system had stopped responding to those concerns. As I wrote in May at the height of the rioting, "I'm not sure burning a police car would accomplish more, but I'd be hard pressed to conclude it would accomplish less."

With reform paths at the Legislature appearing all closed when 2020 began, Grits would have told you that made local work even more important. But Texas is a big state with a lot of local jurisdictions. And even in the big cities, there was little local momentum for reform.

In Austin, it got so bad that in April, a month before George Floyd died, more than two dozen community groups banded together to call for the police chief's ouster because he opposed and stifled even the smallest reformist changes. The protests reversed that momentum and began a process of rethinking policing based on different priorities.

Even in Texas cities that didn't go so far as Austin, new reform currents were ignited over the summer that didn't exist before. In Houston, the Mayor's Task Force on police reform issued dozens of recommendations and sparked important discussions which may still yield fruit. In Dallas, the chief  left in response to criticisms of her department's handling of the protests, and a new civilian oversight board was conceived, though its early stages have been tumultuous. In San Antonio, advocates have launched a petition drive to remove SAPD from the state civil service code, and the city council has included police reform on its legislative agenda.

The remnants of Republican #cjreform

Meanwhile, to the surprise of #cjreform advocates and police-union leaders alike, the latest Texas Republican Party platform included provisions opposing police brutality, limiting "no-knock" raids, supporting "independent review" of police shootings, and most astonishingly, a suggestion the Legislature should "ban collective bargaining with police unions." When Allen West took over as party chair after a contentious election, he withdrew the platform developed through the convention process and substituted a new one a couple of weeks before the election. So much of what was in there was new even to people who participated deeply in the process.

The GOP platform once again endorsed legislation to limit arrests for Class-C misdemeanors, which in the House in 2019 was carried penultimately by Democrat Senfronia Thompson, then in the end by Republican Corrections Committee Chairman James White. It also recommended that bail be set "based only on a person's danger to society and risk of flight, not on the person's ability to pay."

So there remains a clutch of #cjreform issues that still have bipartisan support. That didn't change with this election cycle, but reform-minded legislators in both parties do seem more energized. And who knows? A few more may join their ranks.

Preparing to play defense

But the elephant in the room remains the Governor and Lt. Governor pledging to attack Austin for its local budget decisions. Presumed next Speaker Dade Phelan, a prominent member of the House Criminal Justice Reform Caucus, was notably silent on this debate during the election, so who knows if he's on board with the punish-Austin agenda? But even if he were, Grits doesn't necessarily expect the Lege to take over APD or even restrict Austin's property tax revenue. Those are complicated, ambitious legislative projects and there's many a slip twixt the cup and the lip. We'll see.

Grits feels like, once they get into the weeds, many of those ideas won't seem feasible. For example, Austin cops are paid significantly more than DPS troopers and most other cops in the state. Will the Lege reduce Austin cops' pay, increase troopers', or create a new class of state police who're better paid than the Texas Rangers? How will rural legislators justify paying Austin cops up to double what their local police get? Those are highly political decisions, but the politics aren't remotely partisan; they fall along different axes.

Similarly, the governor threatened to freeze Austin's property tax revenue because the city "defunded the police" (by which I mean cutting them about the same amount the Governor and Lite Guv cut DPS in 2017). But conservative activists have been fighting for years to have property taxes frozen statewide. How to explain to them that Austin benefits from a policy they covet, ostensibly as a punishment? It's hard to envision that idea going far; Grits views it largely as a campaign stunt.

There will surely be some effort to retaliate against Austin for daring to inject an element of fiscal conservatism into management of the city's largest agency, but the election results don't mean Austin cops will be state employees by the end of 2021. I highly doubt that.

Austin had better get this right

What's clear is that the public narrative in Texas over the efficacy of criminal-justice reform hinges on whether Austin remains a safe city relative to the rest of the state as it moves forward with its "reimagining" process.

Thankfully, the elections ousted Travis County prosecutors who opposed or slow-walked reform and installed a DA and County Attorney who say they want to cooperate with alternative approaches, not undermine them. And the new County Judge is a more enthusiastic reform supporter than his predecessor. Those are big, positive changes. So is the addition of a public defender to the mix, though COVID has slowed the process of that new agency getting off the ground.

The biggest fly in the ointment remains Austin's obstructionist police chief. But the political leadership seems largely on board and, at this point, committed.

Of the Austin city-council races up this cycle, two incumbents went into a runoff. Both are in swing districts that were held by Republicans in the past, and the local party here has been treating them as though they're partisan races. Both incumbents enter their runoffs with significant (but not insurmountable) leads, and Grits expects both to win. Either way, those races will be seen as a referendum on police reform, and not just among the city's most Republican voters. Losses by the incumbents would give an excuse for inaction to Democrat electeds around the state, many of whom spent their careers in the police unions' pocket and prefer not to be pried from it.

Locally, those runoff races arguably don't matter as much. Even if both incumbents lost, reformers would hold the council 10-2. And the base of those 10 overwhelmingly supports them continuing down the path they've started. The only way out is through. Austin electeds must spend the next two years demonstrating that a reform agenda can be implemented and the sky won't fall.

Honestly, I think that's a low bar they should clear easily. Crime in Austin has been portrayed in such apocalyptic terms, mere normalcy undermines critics' message. The only reason it's worked as well as it has is that COVID prevented Texans from visiting Austin for concerts, high-school basketball tournaments or UT football games, so they can't see for themselves that the town is largely safe. But that won't last forever.

Plus, with the passage of time, data will replace speculation about crime trends, putting the lie to the most outrageous claims. The reasons Austin is a fundamentally safe place have little to do with APD deployment patterns.

If, by 2022, armies of antifa-inspired homeless aren't swarming Congress Avenue burning cars and tagging buildings like a scene from Mad Max, then the governor's concerns will appear overstated. As with Obamacare, popular policies need time to kick in and prove themselves. The reforms just can't be a clusterf#@k.

Governor hopes pro-police push will distract from COVID failures

The Governor today held a press conference calling for a half-dozen new laws aimed at increasing penalties for protester violence and people who harm cops. Thing is, Texas already did this in 2015 after the Ferguson protests, boosting penalties for assaulting police officers and requiring high school students to watch a video teaching them how not to make police angry (I kid you not: they did that because it would offend cops to tell them not to shoot the kids - Democrat Royce West carried the legislation).

At this point, shouldn't MSM coverage of Governor Greg Abbott's slew of press conferences on Austin's police budget openly acknowledge that it's just a campaign ploy?

How else to explain that Greg Abbott has suggested more legislative proposals in just a few weeks aimed at attacking Austin for its budget vote than he has all year responding to the COVID-19 virus, which has killed some 15,000 Texans and counting?

We know nothing about the governor's legislative agenda on COVID, much less why he hasn't released $6 billion in federal aid related to the virus. But we've seen him hold press conferences calling for freezing Austin property taxes, de-annexing Austin suburbs, having the Department of Public Safety take over APD, asking lawmakers to sign a pusillanimous pledge, and now increasing a bunch of criminal penalties that were mostly increased already in 2015. Who really thinks any of this is state government's biggest priority right now?

One of his proposals would make Texas' "rioting" offense a felony. Grits has previously written about the dark origins of that overbroad law in the anti-civil-rights backlash from the '60s. That statute should be repealed, not made harsher. 

The MSM are reporting the presser straight, but how often can they run the same content without acknowledging the larger reality? The real news isn't "Greg Abbott makes legislative proposal." It's "Greg Abbott continues PR tactics to distract from COVID." Headlines focused on the actual contents of his proposal are missing the real story.

MORE: To their credit, the Texas Tribune portrayed this story in electoral terms. So it's not impossible for MSM reporters to cover these issues more credibly; it's a choice when they fail do so.

In Dallas, #DefundThePolice becomes epithet to describe any cut, even amidst COVID revenue shortfalls

Debates over "defunding the police" became even sillier this week with Dallas Mayor Eric Johnson trotting out the phrase to oppose a $7 million cut to police overtime that's almost trivial in the scheme of a) the overall Dallas police budget and b) COVID-driven revenue shortfalls.

Because our friends in the MSM can't keep from saying Austin "cut" a third of its police budget when the IRL cuts were less than 5 percent, Grits can almost understand the public's confusion over whether cuts are a good thing. They've been repeatedly lied to, after all. If Austin had done what the governor and police unions pretend they did, it could be alarming. But it's just not true.

In Dallas, though, Mayor Johnson is using "defund the police" as an epithet to characterize a far smaller cut that only affects a few million dollars in police overtime. (As an aside, this comes as the press airs headlines about DPD officers scamming the overtime system.)

In the wake of that dramatic 13-2 loss, the Big D Mayor could have considered that politics is the art of compromise, understand that he'll have to work with these 13 council members going forward, and simply accepted the L. Instead, he's doubled down, echoing GOP talking points and earning enthusiastic Republican praise, while isolating himself from council members who said his comments were "insulting" and accused him of "grandstanding." 

The net result of this pointless display was to invite Greg Abbott to include Dallas in his attacks on Austin, and siding with him instead of the city. Viewed generously, I guess, at least we know Mayor Johnson is not letting his re-election prospects dictate policy positions. He's in the process of alienating big chunks of Democratic base that he may later discover he needs.

Judges may do what they please after Tx Supreme Court says Abbott executive order unenforceable

The Supreme Court's ruling on Greg Abbott's executive order was fascinating to me. They upheld the executive order, but their reasoning amounted to "It's okay to keep it in place because it's completely unenforceable and nothing can or will happen to judges who ignore it."

See initial coverage from the Texas Tribune. Here's the order itself.

The court acknowledged the Governor is not above the law or the constitution, but decided the judges in this case were essentially under no credible threat that anything would happen to them if they violated the order:

We acknowledge the plaintiff judges’ allegation that they face a threat of criminal prosecution if they do not follow the executive order. Any threat to prosecute a judge for his or her judicial decisions raises grave separation-of-powers concerns. The judges, however, do not explain why well-established principles of judicial immunity are insufficient to counter such threats. Troubling as these threatened prosecutions would be, the defendants have disclaimed any such intention, and the judges have not shown a credible threat they actually will be prosecuted. As a result, even if a threat of prosecution could give a judge standing to challenge a substantive legal standard, the alleged threat of criminal prosecution in this case does not give the judges standing to seek the invalidation of GA-13. 

The court considered the threat of enforcement of GA-13 a non-issue because "the executive branch cannot criminally prosecute judges for deciding cases based on what they understand the law to be." In the end, they declared, "Applying the correct law in each individual case is the judge’s job as an institutional matter."

The court found that, even if judges were to openly violate the executive order, "there is no 'credible threat of prosecution.'” Indeed, they noted, "the State in its briefing disclaims any intention by the Governor or the Attorney General to affirmatively enforce GA-13."

Moreover, if local district attorneys tried to enforce the order, the judges would be protected by judicial immunity: "even if criminal prosecution of judges were genuinely threatened, the plaintiffs offer no reason to doubt that long-established principles of judicial immunity provide adequate protection." Said the opinion, "Judicial immunity prevents such 'domination by other branches' by giving a judge absolute immunity from liability for official judicial acts performed within the scope of his or her jurisdiction."

I'm not an attorney, but as Grits reads this, the plaintiffs technically lost the case but won the issue. Judges may simply ignore the executive order with full confidence that it cannot be enforced.

And they should.

RELATED: On Twitter, Judge Elsa Alcala opined, "Have they met the GAW faction of the CCA? LOL. It is an interesting issue that the civil high court is assessing what the criminal high court would hold re criminal prosecution." That's a fair point. But even so, I have a hard time imagining even the Government-Always-Wins faction on the Court of Criminal Appeals finding a theory to justify getting past absolute judicial immunity. I suppose I wouldn't put it past them to try.

Judge ruled Abbott exceeded his authority on executive order limiting personal bonds, but the fight's not over

UPDATE: The Supreme Court of Texas on Saturday issued a temporary stay on Judge Livingston's Temporary Restraining Order, meaning Abbott's order for now is back in effect. The court has requested briefings on the subject, with responses from the litigants due on Monday. See coverage from the Texas Tribune.

ORIGINAL POST: Texas Governor Greg Abbott and Attorney General Ken Paxton took one on the chin yesterday when Travis County District Judge Lora Livingston issued a Temporary Restraining Order barring enforcement of the governor's executive order barring jail releases of people with current charges or past convictions involving violent offenses. See initial coverage from the Austin Statesman, and briefs from the plaintiffs and Abbott/Paxton's attorneys.

At another hearing scheduled for April 24, Judge Livingston will decide whether to turn the TRO into a full-blown injunction, if the Supreme Court of Texas doesn't beat her to the punch (see below). Here's Judge Livingston's letter explaining her decision.

Grits considered the executive order a barely disguised attack on bail reform efforts in Harris County and a warning shot aimed at other jurisdictions that might follow their lead. There was no obvious link between the order and protecting people from the coronavirus, and in fact, it increased risk of infections in Texas county jails. So I was glad to see Livingston's decision, though I also understand this is only the first step down a longer path.

Though I'm not a lawyer, when I read the government's response to the petition from the ACLU of Texas, the Fair Defense Project, and the Lawyers Committee for Human Rights, I suspected they would lose on the merits. Frankly, they didn't address most of the plaintiffs' arguments directly, sidestepping them with sweeping overstatements and absurd attacks that, if taken to their logical conclusion, would make Governor Abbott essentially an un-accountable dictator whenever he decided to declare a disaster. 

In their brief, Abbott's lawyers accused judges of "misusing" their authority to grant personal bonds, but in the hearing yesterday, they could not identify a single example of such misuse, despite Livingston repeatedly pressing lead counsel Adam Biggs on the point. Not. A. Single. One.

Indeed, Biggs was unable to identify how the governor's executive order related to the coronavirus at all. The "disaster" to which he was responding, Livingston pointed out, had nothing to do with judges' authority to issue personal bonds, which predated the rise of the virus. In essence, the virus was an excuse for the action, not the reason.

They also blew past the central arguments by the plaintiffs without addressing them, arguing against positions never taken. Plaintiffs contended the Disaster Act only authorized the governor to override "regulatory" statutes governing state agencies, not the Code of Criminal Procedure or the Texas Constitution. But Biggs and Co. argued that, "According to Plaintiffs’ interpretation, the Governor would have to run to the Texas Legislature any time one of his COVID-19-related executive orders—like the recent restrictions on social distancing—touches upon just one of Texas’ numerous statutes." This ignored the "regulatory" distinction in the Disaster Act on which the plaintiffs' central argument hinged and made it easy for for Livingston to ignore their position and rule against them. It was simply non-responsive.

Maybe the oddest of the governor's lawyers' arguments was that the plaintiffs were encouraging "the deaths of tens of thousands of ... Texans" by contending that only the Legislature could suspend non-"regulatory" statutes.

Plaintiffs’ theory is that only the Legislature should have meaningful power to suspend laws that prevent the State’s response to this growing threat. Apart from the lack of a textual basis for Plaintiffs’ arguments, the following shows why this theory cannot be correct and would lead to disastrous results. To take legislative action, the Legislature would need to convene in person at some centralized place (the presumptive location is the State Capitol in Austin). 

It would presumably take days, if not weeks, to assemble individual legislators in the State Capitol or anywhere else. There are 150 Texas House members and 31 Texas Senate members.193 Two-thirds of the members from each chamber (100 for the House and 21 for the Senate) would need to appear to have a “quorum to do business.”194 Plaintiffs’ theory thus raises the specter of 121 Texas legislators gathering on one central location in the midst of a highly infections deadly disease that can quickly ravage large groups of people in a closely-confined area. The problems continue. 

Once the vote is done and the legislators go their separate ways, what happens when the COVID-19 threat quadruples in the following week (as we have seen is all too possible), which necessitates more severe action and thus the suspension of additional statutes? Well, the process would start all over again.

According to Plaintiffs, this Court is required to interpret § 418.016(a) in a way that could realistically result in the deaths of numerous Texas Legislators and, due to built-in delays in the process, the deaths of tens of thousands of other Texans.

Frankly, that doesn't seem "realistic" at all, considering Texas has seen fewer that 12,000 cases overall and as of yesterday, 226 deaths. By contrast, the plaintiffs made solid arguments both in their brief and at the hearing that pretrial defendants in jail were at significantly greater risk of contracting the virus, an argument Abbott's lawyers simply ignored or downplayed. Judge Livingston, however, raised the point multiple times and considered it a reasonable thing for judges to take into account, especially since Biggs and Co. could identify no examples of judges "misusing" the authority, as their brief had claimed.

Indeed, the argument that the Legislature convening would kill "tens of thousands" of people ignores the fact that the Texas Constitution includes a pandemic exception that allows the Legislature to convene outside of Austin if the capitol faces a "disease threat."

Sec. 8. CONVENING LEGISLATURE ON EXTRAORDINARY OCCASIONS. (a) The Governor may, on extraordinary occasions, convene the Legislature at the seat of Government, or at a different place, in case that should be in possession of the public enemy or in case of the prevalence of disease threat. His proclamation therefor shall state specifically the purpose for which the Legislature is convened.

However far afield some of these debates seemed, they didn't play a major role in the judge's decision. From her commentary at the hearing (thanks to the Texas Observer's Michael Barajas for sharing a recording), Judge Livingston's central motivation appeared to be protecting the powers of the judiciary from infringement by the executive branch. This passage from her explanatory letter (linked above) made that clear:

many of the orders in Executive Order GA-13 strip away the discretion of the judiciary and potentially subject its judges to mandamus or criminal action with little or no rationale in coping with the current health crisis. Instead, the order appears to address an unsubstantiated fear that the judges of the state will abandon their legal obligation to balance the interests of the public, individuals accused, but not convicted of criminal offenses, and the victims of those alleged offenses. The judges of this state were required to balance these very interests every day prior to the disaster declaration, and they are required to do so every day once the disaster declaration ends. The exercise of judicial discretion falls squarely within the purview of the judicial branch of our government. To be clear, the judges of this State may not abandon their responsibility in this regard, but neither may it be taken away from them by executive order. 

From this non-lawyer's perspective, the governor's attorneys made it awfully easy for Livingston to rule against them by ignoring central arguments from the plaintiffs and instead railing against straw men. They overstated their own case to a significant degree and downplayed plaintiffs' most important points to an even greater one. I was surprised their response wasn't stronger.

That said, it's possible the governor could prevail, anyway. As Grits was wrapping up this post, word came that Abbott's lawyers will file a mandamus action with the Supreme Court of Texas today, essentially performing an end run around the normal channels of judicial review.

Will the Supreme Court's loyalties lie more with the constitutional authority of the judicial branch or their partisan affiliations? Is Greg Abbott merely a governor whose powers are constrained by the constitution and state law, or a king who may do what he pleases so long as he declares a "disaster" first? Or will the Republican-led Supreme Court have the foresight to understand that their party won't always control Texas' statewide offices and enforce constitutional limits so that future governors won't also run amok?

Those are the big-picture questions before them, and though I think Judge Livingston was right on the facts and the law, Grits couldn't begin to guess what the final answers will be.

MORE: See Judge Elsa Alcala's analysis.

Litigation challenges Abbott's executive order on COVID-19 jail releases

The Texas Fair Defense Project, ACLU of Texas, and the Lawyers Committee for Civil Rights Under Law sued Governor Greg Abbott over his executive order (GA-13) related to pretrial jail releases in response  to the coronavirus, as well as Attorney General Ken Paxton, who has vowed to aggressively enforce it. The Harris County Attorney's office has also signed onto the litigation, and 16 Harris County Criminal Court at Law judges number among the plaintiffs. It was filed in a Travis County district court.

In an email announcing the lawsuit, TFDP's Amanda Woog wrote that:

Public health experts have been warning for weeks of the dangers of COVID-19 in jails: tight quarters, a particularly vulnerable population, and a revolving door of staff and detained people, make a jail a "hotspot" for a COVID-19 outbreak which would devastate the people within and outside the jail walls. The order sought to disrupt the incredible movement we've been seeing across Texas of local stakeholders working together to reduce their jail populations. 

The executive order threatens public and community health, undermining efforts to reduce jail populations and avoid outbreak in jails and surrounding communities. Further, under the order, only the poor would stay in jail; people who can afford to pay cash bail are released, to the privilege of social distancing and other precautions we on the outside can take to avoid infection. 

It disrupts the work of local communities in determining how to respond to this unprecedented crisis, and unconstitutionally usurps the authority of the legislature and the judiciary.

The petition filed this morning can be found here, and the ACLU-TX press release here.

The lawsuit alleges Gov. Abbott's order spawned "turmoil and confusion in the courts by purporting to strip judges and magistrates of their authority to decide individual cases." As a result, "The judges are now caught between fulfilling their obligations to decide bail in individual cases as prescribed by the Constitution and Legislature, or obeying an Executive Order."

The petition argues that "The Disaster Act does not empower the Governor to modify or suspend the targeted sections of the Code of Criminal Procedure. This renders GA-13 unlawful in its entirety, and the Court should invalidate its provisions as ultra vires [ed. note: acting beyond one's legal authority] on this basis alone.

Also, "GA-13 violates Article I, Section 28 of the state Constitution, which prohibits non-legislative suspension of the laws of the State, and Article II, Section 1, which mandates separation of powers between co-equal branches of government. GA-13 is therefore unconstitutional on its face."

Both stances to me appear inarguable. The governor has the power to suspend administrative regulations, but not the friggin' Code of Criminal Procedure! Grits wrote the other day that Abbott had exceeded his authority, and this is precisely why.

Conservatives should be just as unhappy at this attempted gubernatorial coup vs. local judicial power as are the judges, criminal defense lawyers and civil-rights groups who are plaintiffs in the suit. After all, if in a few years Democrats find themselves in control of statewide offices, will conservatives really want some liberal governor to have the authority to suspend criminal-law statutes and override local judges every time a disaster is declared?

Observed the plaintiffs, "The Disaster Act has never been interpreted to empower the Governor to interfere with the power of the Judiciary. Until now, no Texas Governor has invoked the Disaster Act to purport to suspend provisions of the Code of Criminal Procedure and effect sweeping changes to criminal law." Indeed, "The Texas Constitution provides that 'No power of suspending the laws of this state shall be exercised, except by the Legislature.' Tex. Const. Art. I, § 28."

Grits is very glad to see this and hopes the courts act quickly to thwart the governor's attempted power grab. I don't think he and Paxton have a leg to stand on.

See initial coverage of the lawsuit from the Austin Statesman and the Texas Tribune.

UPDATE (4/10): Just before a hearing began on Friday considering the request for a temporary restraining order, attorneys for the Governor and Attorney General filed their response brief. For those interested, here's a copy. Here's the first media coverage on the topic from the Fort Worth Star-Telegram, and another article from the Austin Statesman. I'm listening to an audio file of the hearing now. Judge Lora Livingston sounds unconvinced by the Governor's lawyers' arguments.

Governor should address homelessness crisis for all of Texas

"Verily I say unto you, Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me." - Matthew 25:40

The Trumpian tropes trotted out by the Governor and local Travis County GOP figures in the Austin homelessness debates - all while President Trump and Fox News frenetically amp up anti-homeless sentiment as a national-election wedge issue - make Grits feel tired and sad. It looks to me like a lot of state leaders doubling down on the wrong side of history, as happened not so long ago when opposing gay marriage was the wedge-issue de jeur.

For all the weeping and gnashing of teeth over Austin's homelessness problems, in reality this is something faced by communities around Texas and beyond, some of which have confronted the situation more honorably than others.

In Dallas, local media say there are no solutions in sight for the local homeless problem. But the governor isn't threatening them, and the troopers he sent in to fight crime left quietly after three months.

Houston's no-sit/no-lie ordinance, implemented under Mayor Sylvester Turner, is just pushing the population around the city. But what did work were large federal grants to pay for tracking homeless and connecting them with services.

The folks dispensing much-ballyhooed homeless services in San Antonio openly admit their must-be-sober-and-take-drug-tests-to-receive-help approach leaves much to be desired and keeps many people on the streets who might be helped by a housing-first approach.

Even places like Plano, Frisco, Lubbock, Midland, Tyler, Longview, Nacogdoches, Corpus Christi, Galveston, Sugar Land, Victoria, and Montgomery County struggle with homeless problems they don't advertise but cannot ignore.

Anti-homeless activists have spuriously suggested that California cities may send their homeless to Austin. But if anybody's doing that, it's Waco, where they're forcibly clearing out homeless camps using police and Sheriff's deputies. Then they use forced labor from county jail inmates to clean up the aftermath, with local journalists tagging along for the poverty porn.

Amarillo started down that same path, but city leaders had a change of heart and issued housing vouchers to people in a local encampment instead. Abilene, similarly, has chosen to empty its homeless camps by finding their residents housing instead of chasing them out. These jurisdictions don't have to deal with the scale of big-city homeless problems, to be sure, but their example complicates what the governor, speaking from his walled compound in Austin, might reasonably portray as a "Texan" approach.

Governor Abbott appears to have singled out Austin for political purposes, tying local debates into a national GOP effort to use homelessness as a wedge issue in the culture wars and blaming this decidedly capitalist problem on political liberalism. In doing so, he trivializes a human-rights crisis faced by numerous Texas cities, including the ones still controlled by Republicans. He's missing an opportunity to exercise leadership that could demonstrate to swing voters the Texas GOP can govern as well as it campaigns.

Perhaps what jumped out to Grits most in Abbott's letter was the threat to use "quarantines" to ban the homeless from certain quadrants. Texas' quarantine laws haven't been used since the Ann Richards administration, and that time it was also a politicized abuse of power. She disingenuously declared a quarantine to keep away the press in the aftermath of the Branch Davidian catastrophe in Waco, which incidentally is the only known use of quarantine authority by a US governor in the last century. Richards' quarantine was done in secret, but Gov. Abbott has now openly threatened to use this same authority to coerce a local city council to reinstate a repealed ordinance. Really?

As Sir Thomas More asked of his accusers, "when the last law was down, and the Devil turned 'round on you, where would you hide, ... the laws all being flat?"

Austin Mayor Steve Adler declared that he took Gov. Abbott's entreaties as evidence that state government wants to "help" - a reaction that could only be taken as tongue in cheek. But what if Gov. Abbott did want to help solve homelessness?

For starters, the governor could begin to prioritize grants for housing, directing available funds for that purpose and working with Texas' congressional delegation to champion the cause of more federal housing grants from HUD. But as Texas Monthly's Christopher Hooks lamented:

There’s a notable and telling omission among the list of agencies Abbott has said will “help” Austin with its problems: the Texas Department of Housing and Community Affairs, the state agency that helps build affordable housing. There’s been no real effort from state government to actually aid the city here, just a demand that they “fix” things.

He could work with legislators heading into the 2021 legislative session to develop funding packages for housing, mental-health services and prisoner reentry to help mitigate the causes of the problem. The state could fund urban "rest stops" like those on the side of the highway where homeless folks could shower and use the restroom. The governor could use his bully pulpit and personal appearances to fundraise for housing programs like Austin's Community First (at least, in between campaign fundraising for a race that's three years out).

That's what state-government leadership would look like on this issue. What we're seeing, everyone will notice, looks very different.

No need for special session on marijuana potency, but if Governor Abbott calls one, he should greenlight broader pot debate

Grits has enjoyed the delicious irony of the Texas Legislature legalizing industrial hemp in such a way that criminal prosecutors now say they can't make their cases. But the growing calls for a special session over this issue should be quashed. There's really no need; worst-case scenarios aren't that bad, and there are easy fixes that don't involve new legislation.

The issue is that industrial-grade hemp with a THC content below .3% has now been legalized, first by the Trump Administration and then by the Texas Legislature. But Texas crime labs don't have the necessary equipment to delineate marijuana by THC levels. (A legislator told Grits these machines cost about $44,000 each. UPDATE: This was understated. According to the Houston Chronicle's Keri Blakinger, $44k was the cost for Ag-grade testing equipment; forensic-grade machines would run between $300k-$400k. AND MORE: Blakinger has now reported that the more expensive machines are needed for analyzing edibles, but not plant material.)

Here's the thing, though: this won't stop police from arresting people for marijuana (in jurisdictions that still do so). They only need probable cause for an arrest. Instead, the change would allow defense attorneys to challenge allegations later on by demanding the THC levels be proven. Most pot arrests already result in time-served pleas after just a few days, so nothing would really change except the lack of a criminal conviction.

Given that the Governor, who is the only one who can call a special session, wanted to remove pot smokers from county jails in the first place, he may decide just stand pat and allow this legislative error to accomplish what Lt. Gov. Dan Patrick would not allow.

To be clear, like Governor Abbott, I don't believe people should be arrested for low-level pot possession in the first place, much less charged with a Class B misdemeanor for it (max penalty: 6 months in jail and a $2,000 fine). So as far as I'm concerned, there's no crisis here that impacts public safety. Everything will be fine and the sky won't fall if nobody is prosecuted for pot possession over the next two years (a highly unlikely, worst-case scenario).

Does it put prosecutors in a tough spot? Sure. But they have an easy alternative: Just use their discretion to dismiss these cases.

Alternatively, if the Governor agrees it's a big problem to dismiss these cases, the situation can be resolved without a special session. If there were no other options, maybe the Governor's Criminal Justice Division could help pay for new equipment with grants. But in most cases, if District Attorneys are really worried about it, they could pay for the machines out of their asset forfeiture funds. Or they can just stop accepting charges in these cases, which would be easier, cheaper, and have no negative impact on public safety.

If the Governor wouldn't call a special session after Hurricane Harvey, the idea that we're going to do one to salvage petty pot prosecutions makes little sense.

If he DOES choose to call a special session on marijuana, though, Governor Abbott should frame the call in such a way that allows the Legislature to take up his proposal to reduce marijuana penalties. That suggestion was endorsed in the state GOP platform and polling shows majorities in both parties support the idea. That way, instead of calling attention to the failures of Texas government, a special session call could be framed as promoting something positive that's overwhelmingly supported by the public. That's the only way a special session makes sense.

Abbott endorses reduced pot penalties during gubernatorial debate

An email from Texas NORML brings the news that Texas Gov. Greg Abbott endorsed reducing penalties for low-level marijuana possession in last night's debate. They put out the image at right that included his money quote on the topic.

Go here to watch a video clip of the candidates' exchange regarding pot policy.

Notably, the Republican Party of Texas earlier this year endorsed reducing the penalty for possession of small amounts of marijuana to a civil penalty carrying a small fine. However, Gov. Abbott endorsed a slightly different proposal: Reducing penalties to a Class C misdemeanor.

What's the difference?

There are collateral consequences under federal law that attach to any criminal drug conviction, one of the most significant being denial of access to student loans, among others. Creating a new civil penalty would avoid those collateral consequences, which are not triggered by a civil fine.

Gov. Abbott's proposal - simply reducing the penalty by one category-level to a Class C - would have much the same effect on punishment practices. Most people would receive tickets instead of being arrested, so counties wouldn't have to pay for incarceration or hire them lawyers if they're indigent. The maximum punishment would be a fine, not jail time.

The argument in favor of the Governor's approach: It's a cleaner fix, legally speaking. Texas doesn't presently have civil penalties for much besides the Driver Responsibility surcharge, which itself is larded on top of criminal penalties, not levied instead of them. (Toll roads are the other main example.) Indeed, even business regulations here are typically enforced via criminal statutes. That's why, for example, Texas has so many felonies its citizens can commit with an oyster. The Legislature avoids regulation so much, they even choose to criminalize discouraged business practices.

For me, the civil penalty is the better bill, given the two options. The issue of collateral consequences is a big one, and no joke. But either proposal would be a big improvement over the status quo, as presently more than 60,000 people are arrested and jailed every year in Texas on low-level marijuana charges.

UPDATE: Since we're revisiting this discussion, just for fun, here's a jingle Just Liberty used to promote the civil penalties bill in 2017.

TX Judicial Council recommendations on bail reform

Check out the Texas Judicial Council's legislative recommendations related to pretrial detention/bail reform, and the description of the risk assessment instrument they're recommending to legislators in committee hearings.

From the handout: "A recent study showed that defendants who spent three or more days in jail were more likely to lose employment, report serious financial difficulty, experience issues with residential stability and less likely to be able to support dependent children."

And a mere three days of pretrial detention, for many defendants, would be a welcome respite from the reality: "Nearly 20% of felony cases take more than a year to dispose and more than 50% percent of misdemeanors remain pending over six months – meaning individuals held in jail while awaiting trial stay for considerable amounts of time."

With Gov. Abbott having entered the mix over the summer, vowing to name bail-reform legislation after a dead state trooper whose killer he believes shouldn't have been released on bail, one of the shortest distances to passing bail reform would be if a meeting of the minds between Gov. Abbott, himself a former Texas Supreme Court Justice, and current TSC Chief Justice Nathan Hecht could form the basis for consensus among statewide elected officials. So the details of what the Judicial Council proposes on this score are important, and likely form the basis for bail-reform legislation next year.

Some of the things Gov. Abbott wants done regarding preventive detention would require a constitutional amendment, which requires a two-thirds legislative vote in both chambers, as opposed to a simple majority in the House and 3/5 in the Senate, as is required for regular legislation.

With Gov. Abbott's sudden interest, bail reform is shaping up to be a major #cjreform topic during the 86th Texas Legislature. However, even if something like SB 1338 from last session is able to pass this time - and given the motivated fervor and deep pockets of bail-industry opposition, that's not a sure thing - measures that require changing the constitution may still end up being hard-fought votes.

What the judges want: Judicial Council recommendations to the #txlege

The Texas Judicial Council last month issued its recommendations to the Legislature on criminal-justice reform heading into the 86th session in 2019. Let's take a look at what judges are asking of the Texas Lege.

'Data! Data! Data! I cannot make bricks without clay'
Although listed under the heading for opioids, a recommendation to improve statewide collection of case-level court data deserved to be highlighted more prominently. The Council wants Texas to  begin collecting:

relevant case level data from all court levels including magistrates, to generate more timely and detailed information to support policy, planning, management, and budget decisions for the justice system. The collection of the relevant case level data should be fully funded by the Legislature.

This recommendation would have policy making implications well beyond the opioid crisis, and would benefit legislators themselves as much as anyone. As Grits mentioned earlier this week, you can't manage what you can't measure. And there are large swaths of the justice system that cannot be managed because it's impossible to talk with precision about exactly what's happening on the ground. Case-level data could help change that. (MORE: A helpful commenter pointed out the Council put out a separate set of recommendations specifically addressing data issues; see here.)

Establish an Opioid Task force
Yawn. Outside of Houston, meth is the bigger problem in Texas. And solutions on overdose deaths are the same no matter which drugs we're talking about.

'Pretrial Decision Making Processes'
The Judicial Council recommended eight different items on bail reform, providing a comprehensive roadmap for the Legislature to shift from money bail to risk assessments when determining pretrial detention. The list includes both statutes and constitutional amendments necessary to implement the plan, with rulemaking at the Office of Court Administration to flesh out the details within a "sufficient transition period."

In the Judicial Council's vision, all defendants would be assessed for potential risk with a validated instrument developed by the Office of Court Administration. The state constitution would be amended to a) create a presumption that defendants will be released on personal bond and b) allow judges to detain defendants they deem to be a public safety risk regardless of their ability to pay.

They want the Legislature to help fund pretrial supervision as well as training for magistrates and others making bail decisions. They also want the Lege to require data collection on pretrial-release decisions as part of the reforms.

Getting the Governor Out of Specialty Court Oversight
This one is interesting. Under Gov. Rick Perry, specialty courts in Texas blossomed. Today, "Over 190 specialty court dockets operate across Texas, including DWI court, drug court, family drug court, veterans court, mental health court, and commercially sexually exploited persons court," with the Governor's Criminal Justice Division the largest funder. But this was the prior Governor's priority, not this one. So it's little surprise that the Judicial Council might suggest that "certification and oversight" of specialty court programs be shifted from the Governor's CJD to the Office of Court Administration, which answers more directly to the judiciary.

The Council noted that current practice in Texas is out of step with national norms; only one other state places oversight authority for specialty courts with the Governor.

Firearms
This was clearly their most tentative proposal. Of all the things judges might request to stop mass shootings, asking the Legislature to fund better data entry into the national background check system is one of the least controversial, least bold, and least-likely-to-make-a-big-difference reforms you might name. But it's the only thing they could come up with.

No IAC Fix Suggested

One item Grits noticed was conspicuous by its absence. On the Court of Criminal Appeals, Judge Elsa Alcala has been calling for a legislative fix on ineffective assistance of counsel, which for the most part can only be challenged via habeas-corpus writs where defendants do not have access to an attorney. After four US Supreme Court justices raised the same issue in a recent dissent, Grits thought the subject might secure the Judicial Council's attention. I don't know whether they considered it or not, but clearly it didn't make the final cut.

Governor: DPS crime lab fees 'premature,' but that doesn't mean 'unnecessary'

Texas politicians love to talk about cutting budgets and reducing taxes, but they never want any of the services that money pays for to shrink. Or at least, that's Grits' takeaway from the governor's volteface on Friday, when Greg Abbott rescinded the Texas Department of Public Safety's move to charge law enforcement agencies discounted fees for crime-lab services. For decades, DPS provided such services for free to  jurisdictions without their own crime labs. (Lubbock PD is the biggest DPS crime-lab customer, if "customer" is the right word for somebody receiving a freebie.)

This blog has argued for some time that the demand for free-as-in-beer crime-lab services would continue to outpace capacity and that charging for services is the only way to reverse the dynamic. So Grits was unfazed by this news (although everyone was surprised by it). It would have caused a temporary disruption because the locals weren't given time to plan, but in the long run it's a necessary adjustment that would make the system more stable. After all, the rates locals were being asked to pay were still discounted - subsidized fractions of the full cost of those services which are borne en toto in jurisdictions that operate their own crime labs.

But law enforcement and prosecutors howled like scalded cats. While the prosecutors' association admitted that "DPS has long had the statutory authority to assess these fees," critics focused more on the lack of foreknowledge. According to TDCAA, this was a "last-minute change made behind closed doors as part of the final conference committee budget, which is why no one knew about it until after it was done," which is a fair criticism.

That said, let's be clear: Gov. Abbot has resolved nothing; he has only kicked the can down the road. From the SA Express-News:

Abbott said that despite a tight fiscal situation in Texas, it would be premature to contemplate charging law enforcement agencies a fee for using the DPS labs, according to a letter he sent to DPS Director Steven McCraw. 

“Under no circumstances will I allow the 13 crime labs that DPS operates across the state to be underfunded. However, I firmly believe it is premature to charge a fee at this time,” Abbott wrote the DPS.

So he's saying 1) the crime labs won't be underfunded, and 2) DPS cannot right now begin charging a fee, but it possibly could in the future ("premature" is very different from saying it's a bad idea). That doesn't mean they can't do so in the future when state money runs out sometime in FY 2019. The problem is, if DPS implements fees right now, they can charge discounted rates over the course of the biennium. If they must wait until the money runs out to begin charging fees, they'd have to charge the full cost in order to provide the services.

In the perhaps-more-likely alternative, the Legislative Budget Board could authorize the money and the Lege could re-up it in a supplemental budget in 2019, but they do have to cut the budget somewhere if they don't want to raise more money. They can't all be phantom, I-didn't-mean-it budget cuts.

The notion that the governor will not allow the crime labs to be underfunded is a fascinating statement because he already has! Not only did he sign the budget which included the fees, DPS crime labs needed a substantial increase to keep up with skyrocketing demand for forensic services. However, the fees they were authorized to collect only got them to the budget total they spent in the last biennium. That's insufficient given that DPS crime labs cannot control demand for their services - locals decide the agency's workload, with the cost all coming out of the state budget (if the fees are not implemented).

So if it's "premature" right now, when might we expect DPS to begin charging fees for crime-lab services? From the same Express-News story:

Earlier this year, the Legislature set aside nearly $63 million for operation of crime labs for the next two years, an amount Abbott said is enough to ensure that the facilities can operate at full capacity “well into the next biennium” without a fee. 

DPS said lawmakers gave the department authority to charge enough in fees to collect up to $11.5 million for forensic analysis to bring the department to its full authorized funding level of $74.5 million. Its budget for the previous biennium was $74.7 million, according to the department.

If one assumes DPS crime labs will spend at quicker rates than last biennium thanks to heightened demand, we can expect them to run out of money more or less right as the Legislature convenes in 2019. That makes Grits think the supplemental appropriation is more likely than implementing fees during this biennium.

But at some point state leaders are going to have to address the conundrum caused by this disconnect between demand for crime lab services and payment for them. Now that the fees are delayed, the better public policy would be to implement them as soon as practicable - Grits would suggest Sept. 1, 2018, so that agencies would have time to include the change in their budgets - but not to wait for another legislative cycle. Even charging discounted rates would reduce waste and unnecessary or redundant use of crime lab services.

Finally, it should be said that DPS finds itself between a rock and a hard place. The Lege cut their budget 4% but won't let them reduce any of the services they provide. In addition to this flip-flop, the agency was also forced to rescind a reduction in hours at drivers license centers as a result of the new budget. That's fine - nobody like longer lines at the DMV. But if DPS has less money, what is it currently doing that it's now allowed to cease? Not border security. Not crime lab freebies. Not drivers license operations. Should the cuts come from (non-border area) patrol? Narcotics enforcement? Where, exactly?

The new crime-lab fees were actually a smart-on-crime budget cut, adjusting the financial burden for forensic services so that they're partly borne by the agencies directly benefiting from them. It may have been ham-handedly implemented, and because of that a short-term delay may even be warranted. But state leaders should let DPS pull the trigger on new crime-lab fees sooner than later. The problems caused by unlimited demand outstripping finite capacity at DPS crime labs aren't going away.

MORE: The Fort Worth Star-Telegram offered up a similar position in an editorial which linked to this blog post.

Case study: Why to question (another) enhancement for assaulting police officers

Governor Greg Abbott has responded to recent ambush killings of police with a suggestion to make murder of a police officer a "hate crime" and to "increase criminal penalties for any crime in which the victim is a law enforcement officer."

Though Grits has long opposed most enhancements, considering the one-way ratchet applied to criminal penalties to have surpassed any real need for additional punitiveness in Texas by around the turn of the century, in the scheme of things, I don't mind the symbolic gesture of creating another "hate crime." It's already a capital offense to murder a police officer, so the difference is purely semantic.

However, the penalty for assaulting a peace officer is already significantly enhanced, with murders of police securing a death sentence or life without parole and lesser assaults bumped upward by one offense category. So we should already be witnessing any possible benefit from enhanced criminal penalties on reducing the number of murders of police officers. If that strategy worked, we wouldn't be having this discussion!

The problem is, criminals don't carry around pocket copies of the Penal Code to read in their spare time at the bus stop. Killing a police officer and standing trial for it is a one-time life event during which offenders typically only contemplate potential consequences after the fact. Nobody is weighing penalty thresholds in their mind's eye at the moment they assault a cop. Or if they are, they have resigned themselves already that they will die if the officer does.

OTOH, there may be good reasons why one wouldn't want to boost the penalty by two categories (instead of one) just because the victim is a police officer. For example, in September, Sgt. Rick Van Houten, a police union president out of Fort Worth, allegedly assaulted another officer at a CLEAT convention on Padre Island then fled the hotel before local police came. His department investigated the incident and decided it was worth only a three-day suspension. Does anyone think the situation really merited prosecution as a felony if his department would let him back on the job so quickly? Van Houten was even allowed to participate in meet-and-confer negotiations while on restricted duty because of the incident.

Many people accused of assaulting a police officer, just like Sgt. Van Houten, claim they were defending themselves against unwarranted aggression. And there's little doubt that those claims are sometimes true. The difference is, because Van Houten himself wears a badge, he's more likely to be believed in the absence of video evidence.

Yes, cops receive lenient treatment compared to civilians when they hurt other people or break the law. But perhaps the best way to achieve justice is neither to punish cops more harshly nor to mandate felony incarceration for relatively minor altercations like this one. Instead, perhaps average citizens should be afforded the same protections and benefit of the doubt they'd receive if they were a member of a protected class like politicians or police officers. The punishment afforded the union boss is closer to "justice" in this situation than if the law demanded he be prosecuted for felony assault.

When considering whether to change the law, legislators should assess how Sgt. Rick Van Houten should be treated, not some hypothetical scary black guy conjured up for purposes of pushing a cause. If Sgt. Van Houten deserved a felony rap, fine. But if not, don't mandate that outcome for people who commit the same offense but don't wear a badge.

Okie voters will set tone for red-state drug-war legislation

For mostly historical, family reasons (both sides of my family are from the Texas Panhandle, with ties to Oklahoma), Grits has always enjoyed ribbing our friends from Oklahoma, contending for example that the best thing ever to come out of the state was I-35 and arguing to build a border wall along the Red River instead of the Rio Grande.

But I've got to give our Okie neighbors credit where it's due: Their Legislature A ballot initiative put two measures - Props 780 and 781 - on the November ballot to reduce penalties for low-level drug possession from a felony to a misdemeanor and divert the savings to counties "to provide community rehabilitative programs, such as mental health and substance abuse services." If passed, Oklahoma's felony threshold on property crimes would be increased to $1,000, according to Ballotopedia, compared to $2,500 in Texas, which increased its threshold amount in 2015. See coverage from Fusion and commentary from Doug Berman at Sentencing Law and Policy.

Oklahoma's Republican Governor Mary Fallin has been much more of a leader on these issues than Greg Abbott, vetoing tough-on-crime legislation, championing clemency, and implementing ban the box policies at state agencies.

These ballot measures would put Oklahoma ahead of the curve compared to Texas regarding smart-on-crime policies on the drug war, but still much more regressive on property-theft thresholds. Still, perhaps Texas may soon lose its (sometimes overstated) reputation as red-state criminal-justice reform leader if the Sooner state passes these measures on a ballot topped by Trump/Clinton and Gov. Fallin continues to champion these and similar causes. OTOH, if the ballot measures lose it could set red-state decarceration reform back five years. Important vote.

MORE: From Oklahomans for Criminal Justice Reform.

15 states' governors 'grant frequent and regular pardons' but not Greg Abbott, yet

Regular readers know Grits remains frustrated at Gov. Greg Abbott's parsimonious pardon policy in his first year in office, in which he granted four clemency petitions for penny-ante in the run up to Christmas without even issuing a press release to highlight the governor's miserliness regarding mercy.

When he took office, Grits considered it notable that Abbott had never spoken publicly on the topic, and one year in it's clearly only barely on his radar screen, even though it's one of only a handful of core duties of the office. As Attorney General, his office had ruled the governor could issue posthumous pardons, but beyond that we know little of Abbott's opinions on clemency. No reporter has ever asked him, to my knowledge, or if they did they didn't publish the quotes.

As such, we have answers to only a few of the questions Grits offered up a year ago before Greg Abbott ascended to the governorship:

One also wonders as pardon season approaches about Greg Abbott and what his clemency policy will look like as governor. Rick Perry rejected two thirds of positive recommendations he received from his appointees on the Board of Pardons and Paroles. Will Greg Abbott approve them at higher rates? What instructions will he give BPP appointees on clemency? What questions related to clemency will his staff ask potential BPP appointees during the vetting process? Might he be willing to revisit clemency requests which were approved by the BPP but rejected or never acted upon by Rick Perry? Will Gov. Abbott treat clemency as an ongoing, year-round executive function or limit pardon announcements to a few, symbolic Christmas-time public relations gambits? Nobody ever asked the governor-elect any of these questions on the campaign trail so I guess we must wait and see.

Most of those questions remain unanswered, though Abbott ending the year with this niggardly batch of four under-the-radar pardons three days before Christmas doesn't bode well.

In this vein, Stateline has an interesting new article (1/6) titled, "Move Is On To Make End-Of-Year Pardons Less Random" which offered the following overview of state-level clemency:

Only 15 states, including Arkansas and California, grant frequent and regular pardons, to more than 30 percent of applicants, according to the Collateral Consequences Resource Center, a nonprofit that promotes public discussion of the lasting effects of conviction. The largest group — 21 states, including Kansas, Kentucky and Tennessee, as well as the District of Columbia —provided few or no pardons in the past 20 years. Nine states have a regular pardon process but grant clemency to just a small percentage of those who ask for it, and five states — Louisiana, Maine, New Mexico, Ohio and Wisconsin — grant pardons only infrequently, depending on the governor.

But several governors and state legislatures have moved in recent months to make the clemency process easier and pardons more frequent, reflecting a growing consensus that harsh mandatory minimum sentences have left too many Americans behind bars.

“I do see a wave of mercy rolling across the country,” said P.S. Ruckman Jr., who teaches political science and runs a clemency blog, pardonpower.com. “Over the last 10 years, governors erred on the side of caution, and did nothing” to grant clemency or pardons, Ruckman said. “Increasingly that mindset is changing.”

But not in Texas, at least not yet.

This could change. Abbott could direct the Board of Pardons and Paroles to be more aggressive about finding clemency candidates and choose future appointees with that goal partly in mind. (Rick Perry, by contrast, declined two-thirds of his own appointees' recommendations.) But it's easier and safer to do nothing, so that's the most likely outcome.

See prior, related Grits posts:

• Thanks for nothing, Greg Abbott: Why conservatives should demand 'industrial scale' clemency
• Pardon me, Governor Abbott, but what about your clemency policy?
• Innocence and clemency: An early test for Greg Abbott
• Pondering the Ghosts of Christmas Pardons Past, Present, and Future

Thanks for nothing, Greg Abbott: Why conservatives should demand 'industrial-scale' clemency

UPDATE/CORRECTION: The Dallas News' Brandi Grissom emailed to say that, "Abbott did issue pardons this week, a whopping four of them, but he didn't put out a press release. Here's my story." Grits apologizes for the error; I'd been checking the governor's site every day all December for pardon news, but clearly I need better sources, like Brandi.

----------
Original post, corrected:

Clemency Grinch, Pardon Scrooge - pick your seasonal epithet, but Texas Governor Greg Abbott is about to complete his first year as governor without exercising once having barely exercised one of the handful of core functions assigned to his office in the state constitution: Executive Clemency.

Grits has been waiting to see if the governor would issue a handful of symbolic pardons around Christmas, as was his predecessor's wont, but so far, no dice. I'm not a great fan of the Christmastime pardon tradition, but at least it acknowledges the gubernatorial function. So far, Greg Abbott has shirked this responsibility. To his discredit, in Abbott's first year as governor, Barack Obama has granted clemency to more Texans than him, and Obama's clemency record is abysmal.

It's not like the Texas governor really does much: Sign or veto bills, make appointments, and clemency really are the main things on his plate under the state constitution. But one of those three has been all but abandoned.

The American Conservative this week published an article lamenting "small trickles of clemency" by President Obama and New York Governor Andrew Cuomo "where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency."

 As the author recognized, "the real action is at the state level, which handles most policing, sentencing, and imprisoning." In this discussion, former Gov. Rick Perry made an appearance among "recent governors [who] have distinguished themselves with their appalling miserliness." Citing a data point which originated with research on Grits, he declared that "Rick Perry appointed a clemency board of tough-on-crime hardcases, then rejected two-thirds of their pardon and commutation endorsements."

Clemency these days mostly comes up in the context of capital murder and innocence cases. But this article suggests that governors embrace "industrial-scale" clemency aimed at reversing mass incarceration.

Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error. Even with DNA evidence and a verified confession exonerating the five youths convicted of raping and assaulting the “Central Park jogger” in 1989, former prosecutor Linda Fairstein still insists she got the right culprits. But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice.

The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster. A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong.

The article supplies an overview of past acts of mass clemency and the recent re-embrace of the pardon power across partisan lines by a handful of American governors:

U.S. history turns out to be generously littered with acts of mass clemency. In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore—as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song. In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office. 

Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy. Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition. (Many of these examples are drawn from Marie Gottschalk’s new book Caught: The Prison State and the Lockdown of American Politics, the best single-volume overview of the ongoing crisis in American criminal justice.)

Today, even as clashing currents push at the same time for greater mercy and greater harshness, an affinity for the pardon power has trespassed wantonly over the country’s regional, ideological, and partisan divides. Recent governors who have pardoned and commuted with magnanimity include Arkansas Republican Mike Huckabee (1,058 pardons in his 10 years in office), California Democrat Jerry Brown (83 pardons on last Easter Sunday alone) and Michigan Democrat Jennifer Granholm (182 commutations in her two terms). Haley Barbour pardoned 203 prisoners at the end of his second term as the Republican governor of Mississippi, an act that briefly became a national non-scandal eagerly covered by the national media sniffing around for gotchas. (Thank you, o “liberal” media.)

Considering the increasing number of low-risk elderly folk in state prisons, there's even an argument for expanded clemency on fiscal conservative grounds:

Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.

Bottom line:

What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population. There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power. These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55. Routinized clemency on a grand scale will be necessary to tame this beast.

Greg Abbott has yet to embrace barely embraced his clemency power even on a symbolic level, much less on an industrial scale. But what's at stake is more than the fates of individuals who benefit from executive mercy, concludes the American Conservative piece, but rather the issue speaks to who we are as a people and the hypocrisy of mass incarceration in the self-styled "land of the free":

According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.

Since Rick Perry issued his last pardons on December 19, 2013, it's now been it took more than two full years since before any Texan received the benefit of state-level executive clemency, and then the governor's mercy was limited to four, unheralded souls. Grits isn't sanguine Greg Abbott will ever ramp up to "industrial scale" clemency given this tepid start, but that's what's needed.