Roundup: Criminal justice bills to watch

Let's highlight several pieces of Texas legislation filed recently that piqued Grits' interest.

There's HOPE for probation reform
HB 1242 (Geren/Carter): This is permissive legislation modeled on Hawaii's award-winning HOPE Court that would allow judges to utilize short jail stints instead of revocation for technical violations. Really good bill. And with House Criminal Jurisprudence Vice Chair Stefani Carter as a joint author it has a decent chance of moving this session. For more background on the HOPE program see this, this, this, this, this, this, and this.

Sentencing Commission proposed
Rep. Senfronia Thompson has filed  HB 990 to create a sentencing commission, which was a Legislative Budget Board recommendation. The commission would analyze sentences and recommend ways to reduce disparities among jurisdictions, compare Texas practices to other states, and "devise an approach that would allow the state to balance sentencing policies with correctional resources." Grits thinks this is a fine idea as a one-time re-evaluation of state sentencing policies, but would not want to see it become a standing entity.

Reducing barriers to ex-offender employment
HB 1188 is a good piece of bipartisan legislation by Reps Senfronia Thompson and Charles Perry that would limit the liability of businesses who employ people with criminal convictions. It would still allow suits for harms caused by negligent hiring, inadequate supervision, misuse of funds or property or other traditional torts. But under the bill, "A cause of action may not be brought against an employer, general contractor, premises owner, or other third party solely for negligently hiring or failing to adequately supervise an employee, based on evidence that the employee has been convicted of an offense."

Punishing prosecutors for witness tampering
HB 1163 by Moody would alter witness tampering statutes to include soliciting false testimony and encouraging witnesses to withhold information or elude appearing before the court. Punishments under the bill could be pretty harsh: "a felony of the second degree if the actor is a public servant acting or purporting to act in an official capacity or an attorney representing a party to the official proceeding, except that the offense is a felony of the first degree if the official proceeding is part of the prosecution of a criminal case in which the most serious offense charged is punishable as a felony of the first degree or a capital felony." There are exceptions for defense attorneys advising clients to exercise 5th Amendment and other legal rights. The problem is, who would prosecute cases against the prosecutors? Are DA's going to indict their own employees? Somehow I doubt it.

Studying Solitary
HB 1266 by Guillen would create an "Adult and Juvenile Administrative Segregation Task Force," made up of agency folks and various community stakeholders. It would review policies, make recommendations on ways to reduce the number of people in solitary confinement, improve programming and mental health services in ad seg. I actually think there are things they could do now that wouldn't require more study: E.g., requiring ad seg prisoners to be paroled one year before their full sentence is complete so they'll be under supervision during the reentry period. (If they complete their full sentence while in ad seg, they're dumped straight from solitary confinement back onto the streets - something that happened with 1,445 inmates last year.) Still, a task force study could raise the issue's profile and set the stage for changes down the line. Better than a sharp stick in the eye.

Don't lessen medical examiner qualifications
HB 1192 by Moody would lessen qualifications for Texas medical examiners, allowing any physician certified by the Texas Medical Board (or doctors licensed in other states) to do the job instead of requiring licensure through the Board of Medical Examiners. Seems like a bad idea to me. Perhaps I'm missing something, but surely we've had enough trouble with shoddy medical examiners in Texas that it seems foolhardy to reduce their specialty qualifications.

Limiting local limits on weapons
If HB 1299 by Stickland were to pass, "a municipality may not adopt or enforce an ordinance or other regulation relating to the private ownership, keeping, carrying, transportation, licensing, or registration of an electric stun gun, a knife, or a personal defense spray." Under the bill, they could still prevent folks from carrying those items past entrances to government buildings with metal detectors installed.

'Zero tolerance' for retaliation vs. inmate grievances
HB 968 by Sylvester Turner would require the Texas Department of Criminal Justice to "implement and enforce a zero-tolerance policy for failure to protect inmates from retaliation for filing a grievance" and begin annual reporting of grievance data, charging the agency with "identifying patterns of commonly recurring problems and making recommendations in regard to addressing those recurring problems."

Restorative justice pilot
HB 937 by Farias would establish a restorative justice pilot for juvenile offenders in San Antonio.

Innocence bills, redux
Finally, a pair of innocence-related bills that were filed in the Senate have also been filed in the House: Rep. Terry Canales has filed HB 1096 requiring police to record custoidial interrogations related to certain serious offenses. Sen. Rodney Ellis is carrying the bill in the upper chamber. And Rep. Sylvester Turner has filed the habeas corpus reform bill that Criminal Justice Committee Chairman John Whtimire filed in the Senate. The bill number is HB 967. (See Texas Tribune coverage of the recording interrogations and habeas reform bills.)

Fort Worth drug court modeled after Hawaiian HOPE program

The Texas Public Policy Foundation's Vikrant Reddy recently published an op-ed in the Fort Worth Star-Telegram praising Judge Mollee Westfal's new "SWIFT' court which is

modeled after the successful HOPE Court in Hawaii, which uses swift and certain sanctions to manage low-level drug offenders.

In the HOPE Court, a judge tells a probationer that instead of prison, he will be permitted to return home, where he can continue to work and provide for his family. The probationer also is told he will be called back frequently to the court without advance notice to determine whether he is complying with his probation terms. If he is not in compliance, he is placed immediately in county jail for the weekend.

There is no additional warning or protracted trial process -- only swift and certain consequences.
A HOPE probationer offered drugs at a party on a Thursday knows that if he is summoned for a random drug test the following morning and fails, he will lose the opportunity to relax with family and friends over the weekend.

The HOPE model understands that people respond to immediate and commensurate punishments like this better than to longer and more severe punishments that seem tenuous and remote.

After Hawaii introduced HOPE in 2004, the rate of missed and failed drug tests dropped by nearly 80 percent. A probationer in HOPE is 55 percent less likely to be arrested for a new crime than one who is not in HOPE. As a result, HOPE probationers are sentenced to about 50 percent fewer days of jail time.

Attorneys and probation officers were initially skeptical about being called into court for every minor probation violation, but the volume of work per offender has decreased over time.

Social scientists have long understood that people respond best to immediate punishments. Cesare Beccaria, an 18th-century thinker who is regarded as the founder of modern criminology, argued that swiftness and certainty in punishment are more important to deterrence than severity.

Beccaria, who was quoted by Thomas Jefferson and John Adams, was deeply influential at the time of the American founding. Modern research on human behavior has validated his time-honored criminological theory.

But it is worth setting aside all of the complex academic literature and realizing that SWIFT-style policies are just a return to common sense. Any parent could explain why HOPE works just as well as any professor.
Revoked felony probationers currently account for more than one-third of Texas' prison population and nearly half of the state jail population.

Texans pay approximately $600 million to incarcerate these individuals, but if probation were improved, the state would be able to reduce these costs and prioritize existing prison space for violent offenders who most need to be taken off the streets. Reform of this sort could also improve public safety and return low-level criminal offenders to productive, law-abiding lives.

Hawaii was a useful model for Tarrant County. It may soon be that Tarrant County is a useful model for the rest of Texas.

See earlier coverage from the Fort Worth Star-Telegram from when the SWIFT program launched last summer.

Tarrant judge models strong probation on Hawaii's HOPE program

In Tarrant County, District Judge Mollee Westfall has launched a strong probation docket modeled after the much-praised HOPE program out of Hawaii, reports the Fort Worth Star-Telegram ("Judge kicks off strict probation program in Tarrant County," July 9). "The concept is simple: Every time they mess up, they go to the county jail for a short stay. Lie or hide and their stay will be longer." Said the judge: "It will require more jail space in the short run, but in the long run -- if it works the way we expect it to and the way it did in Hawaii -- it will require less prison space, it will lead to less revocations, and it will pay us back tenfold any money that we put into it." The county hopes to get a federal grant to pay for the program, but after researching the HOPE program, Judge Westfall has decided to launch a small, model program in the meantime either way:

Westfall said she jumped at the chance to help implement the program after Leighton Iles, director of Tarrant County's Supervision and Corrections Department, arranged for Angela Hawken, an assistant professor of economics and policy analysis at Pepperdine University, to come talk to the judges about Hawaii's HOPE program.

"I was very taken with it," Westfall said. "It's all upside and no downside, as far as I can see."

Hawken and Mark Kleiman, a professor of public policy at UCLA, researched and evaluated HOPE and found that probationers in the program were less likely to commit new crimes, fail drug tests, miss probation appointments and have their probation revoked.

"The current system fails because it lacks credibility," Hawken said. "Probationers are given a long list of probation conditions that they are told to comply with. But these are rarely monitored and even if violations are detected, punishment is usually inconsistent and delayed. Probationers learn that they can get away with violating the rules.

"When punishments are meted out they are usually too severe. We've now learned that small doses of punishment, meted out for every violation, is much more effective than sporadically lowering the boom."
Iles said people often question why Tarrant County would implement a program aimed at keeping problematic probation violators out of prison.

"Our prison system is at capacity," explained Isles. "There is no room at the inn. If you want the rapists and the robbers and the murderers to stay locked up, we can't put in our one-time drug possessor who has tested positive one time. We have to be more effective."

Tarrant County's Supervision and Corrections Department has applied for an $850,000 federal grant from the Justice Department, which is awarding four such grants to replicate Hawaii's program. If Tarrant County receives the grant, 400 probationers will be assigned to the program.

But for now, Westfall said, they will sign up as many probationers as they can -- around 10 a month -- and use available resources and volunteer staff.

For more background, see this public policy brief (pdf) on the program from the Pew Center on the States, as well as prior related Grits posts:

• Hawai''s HOPE program reports outstanding results
• Hope program pilots strong probation methods for addicts without mandatory treatment
• Levin urges Corrections Committee to mimic Hawaii's HOPE program