Texas bail-reform legislation not ready for prime time

Competing bail-reform bills are up in the Texas House Criminal Jurisprudence Committee today, but in this writer's view, none of them is ready for prime time.

For reasons articulated before, the Texas Judicial Council bill carried by Murr/Whitmire (HB 1323) fails to address the main constitutional flaws identified in Texas' system by federal litigation.

The Governor's bill, carried by Rep. Kyle Kacal and backed by the bail-bond industry (HB 2020), is even worse. It creates a new layer of government - the Bail Advisory Program - and the committee substitute stocks it with politicians instead of issue-area experts. The program's mandate? To reinvent the wheel, creating a new validated-risk-assessment tool, even though the Office of Court Administration already has one that's available free for counties to use.

Neither bill addresses the failure of counties to provide defendants counsel when magistrates set bail, which is the principle issue at stake in all three federal litigation sites. And neither addresses the fundamental constitutional question of incarcerating people because they can't afford to pay money bail. So the matter won't be resolved no matter which bill passes.

In that light, Grits has come to believe legislating this topic is premature. In two years, once the 5th Circuit has clarified the constitutional baseline, it will be possible to create legislative rules that implement it. But if legislators aren't going to address the core subjects at issue in the federal litigation, Grits fails to see the point of passing anything now.

Texas #debtorsprison legislation overachieving, even boosted revenue

Texas "debtors prison" legislation last year drew plenty of critics among municipal judges and county officials focused on revenue maximization. Now we know that those criticisms were misplaced and the new law is working even better than anticipated.

At the House Criminal Jurisprudence Committee on Thursday, Office of Court Administration Director David Slayton testified for the first time on the results of "debtors prison" legislation passed by the Texas Legislature in 2017. (You can watch his testimony on the bill here beginning at the 1:29:20 mark.)

When the bill was in play last year, county officials and municipal court judges predicted massive drops in revenue, prompting Rep. Andrew Murr to attach an extra fee counties can charge to indigent defendants sentenced to community service, aiming to offset presumed revenue drops.

As it turned out, that was unnecessary. At the Criminal Jurisprudence Committee meeting Thursday, Slayton told the committee the bill had significantly overachieved, including in ways that directly contradict the predictions of revenue-focused critics:

• The number of warrants for failure to appear is declining.
• The number of warrants for failure to pay is also declining.
• The number of cases resolved through jail credit is declining.
• The number of cases resolved through community service is increasing.
• The number of defendants getting on payment plans has increased.
• Collections per case have increased: By 6.7 percent at the local level and 7.3 percent at the state level.

To me, that's a remarkable result! The bill is achieving all of its goals and then some. Meanwhile, every sky-is-falling prediction by critics turned out to be wrong. (MORE [9/10]: Here's a link to the handout with the graphs being described above. See a summary of new provisions affecting collection of fines and fees and another specifically summarizing changes affecting jailable offenses.)

Regular readers may recall that the House sponsor of the legislation, Rep. Terry Canales, attributed the bill to a series of blog posts published on this humble opusculum, so I'm particularly glad to learn it's working out well.

Slayton also mentioned that the Texas Public Policy Foundation and the Brennan Center are doing a joint report on the costs to collect Class C misdemeanor debt that he expects will come out before the 86th legislative session. Grits can't wait!

The Intercept: State DA association understates extent of prosecutor misconduct

A recent Texas House Criminal Jurisprudence Committee hearing covered that panel's fourth "interim charge" - essentially a study assignment the House Speaker gives committees in between Texas' once-every-two-years legislative sessions - related to both prosecutor misconduct and ineffective assistance of counsel (aka, defense misconduct).

Grits had analyzed the key debates from that hearing related to ineffective assistance. And now, my neighbor Jordan Smith has a report on the prosecutor-misconduct portion of that debate for The Intercept. Jordan explored in some depth, and ably refuted, the state prosecutor association's claims that legislators should interpret the low number of prosecutors sanctioned for misconduct as evidence that prosecutorial misconduct doesn't (or barely) exists.

Between those two reports, one can get a decent sense of the terms of debate presented to the Criminal Jurisprudence Committee surrounding that interim charge.

Considering ineffective assistance without all the voices in the room

The Texas House Criminal Jurisprudence Committee the other day held an under-attended hearing (hardly anyone in the audience and no quorum on the dais - video here) covering three topics: the legal framework behind sexual assault prosecutions (which bled into discussions of crime labs), prosecutor misconduct, and ineffective assistance of counsel (IAC).

In this post, let's consider their discussion of ineffective assistance, first recounting what was said on the topic, followed by a few words about issues Grits wishes the committee would have addressed.

Hearing highlights: Levels of IAC 'very disconcerting'
Stacy Soule, the State Prosecuting Attorney told the committee the number of ineffective assistance cases being heard by the Texas Court of Criminal Appeals is "very disconcerting," warning legislators, "this is not something that's on the margins." By contrast, findings by the CCA of prosecutorial misconduct are relatively rare.

Soule predicted Texas will soon see cases where ineffectiveness is alleged based on defense attorneys failing to invoke the Michael Morton Act or examine the state's evidence.

Grits has heard the same thing, fwiw, particularly in jurisdictions where attorneys are given electronic access to discovery, which means prosecutors and judges can tell if they never bothered to access it. This apparently happens a good deal of the time. Eventually, that documentation may be used to claim attorneys were ineffective if they never downloaded discovery materials. Possibly, entire county systems could be held accountable if it could be proven they knew attorneys didn't look at discovery and kept hiring them to represent indigent clients, anyway. These were the thoughts running through my head as Grits listened to the SPA's testimony.

In that vein, our pal Shannon Edmonds, the Texas District and County Attorneys Association lobbyist, complained that prosecutors have had to hire additional staff to comply with the Michael Morton Act, only to find that many defense attorneys never seek to review it.

Edmonds suggested the Legislature change the law to make public any defense attorney's settlement over grievances with the state bar related to ineffective assistance claims, just as they did for prosecutors in response to misconduct allegations a few years ago. Grits would support that.

According to Soule, as of last week, the CCA had granted IAC relief in nearly 200 cases already this term, with a month left to go before it ends.

While offering no remedies for IAC, Soule suggested it was a big problem for prosecutors for the following reasons:

• may result in wrongful convictions
• takes a substantial toll on the judiciary's resources
• creates difficulties re-prosecuting old cases years later

"Ineffective assistance of counsel is a systemic and long lasting problem," Soule declared.

Linda Acevedo from the state bar disciplinary committee said the state bar doesn't typically sanction lawyers for ineffectiveness, except in cases where lawyers outright ignore or fail to communicate with their clients. In addition, there has been an uptick, she said, in cases where criminal-defense lawyers get involved in immigration cases, don't know what they're doing, and screw them up (my paraphrase) because they are "not competent" to work in the area.

Geoffrey Burkhart, the new head of  the Texas Indigent Defense Commission  who replaced Jim Bethke, told the committee that IAC isn't a "few bad apples" problem but is a systemic issue. (Grits' thought: Can't it be both? After all, bad apples spoil barrels.)

Burkhart said IAC generally boils down to two issues: "The no body problem and the warm body problem." As for the "no body problem," many criminal defendants still do not get counsel or do not get a lawyer soon enough in the process. In some counties, said Burkhart, appointment rates are as low as 10 percent.

The "warm body problem," he said, stems from (often flat) fees for indigent defense being so low that attorneys must work on volume. As a result, attorneys don't spend a lot of time on each case and begin to "jettison core defense tasks."

The Sixth Amendment is a "gateway right," said Burkhart, because without a lawyer one can't enforce one's other rights to due process, etc..

The Texas Indigent Defense commission can only formally audit and inspect a handful of counties each year, Burkhart noted, but in 17 years the agency has never once performed such inspections and found a county in compliance with the Fair Defense Act, he said. Because of that, he said, TIDC tries to play more of a collaborative role instead of taking a gotcha-mentality.

Chairman Joe Moody implied at one point that Texas' indigent defense funding mechanisms might be the subject of federal civil rights litigation based on equal-protection grounds: "You have a situation where you have a constitutional right that's being applied very differently based on where you're charged with a crime."

Notably absent from this portion of the hearing was the criminal-defense bar, who apparently don't mind letting prosecutors' representatives define their problems for state legislators.

Testimony the Committee should have received
Although it's possible she couldn't do so because of conflict with judicial duties (even though legislators won't legislate again until after she's off the court), I found myself wishing Judge Elsa Alcala had been invited to the hearing to testify. She's described in detail the structural barriers to challenging ineffective assistance in CCA dissents and concurrences, and recommended legislative action in response. In particular, she believes the Legislature should expand the right to counsel to include habeas writs, only for purposes of challenging ineffective assistance claims.

Grits would add that the Legislature should consider a remedy to the issues raised by the US Supreme Court's decision in Davila v. Davis, which held that lawyers' ineffective work on state habeas proceedings did not excuse a procedural default because there's no constitutional right to counsel in state habeas proceedings. IMO, there should be some way statutorily to ensure that ineffective lawyers don't prevent defendants from pursuing meritorious claims in state habeas proceedings. This hearing would have been a great opportunity to receive input on the question.

In a dissent to that case, joined by three other justices on SCOTUS, Justice Breyer pointed out the same problem with Texas IAC law in that case as Judge Alcala has been raising: State habeas corpus writs are the "first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial," and there's no right to counsel at that phase.

Given all this judicial interest - not just from the CCA but from SCOTUS - Grits was sure these issues would be considered at this hearing. But they never came up.

Grits also wished they'd had some law prof or researcher to provide some context to the numbers the State Prosecuting Attorney put out, about which Shannon Edmonds tried to imply that a handful of prosecutor misconduct cases or the few dozen IAC claims upheld by the Court of Criminal Appeals represented the entire universe of bad-lawyer behavior in the justice system. That's absurd, but the contention was allowed to stand un-rebutted.

In reality, there are dozens of hoops a case must get through before the CCA agrees to hear it, and many (in fact, by far, most) legitimately problematic cases of prosecutor misconduct and IAC never get that far.

Fort Worth Attorney Mike Ware, speaking of his work with the Innocence Project of Texas, meandered toward that point, telling the committee that IAC and prosecutor misconduct both are typically "hidden." DNA evidence might exonerate someone, he said, then when people looked back to say, "why was that person convicted?," they might find IAC or misconduct by a prosecutor. But without that needle-in-a-haystack discovery, no one would ever know.

That's the case in most instances, both of prosecutor misconduct and IAC. The few cases we see are examples of patterns which exist more broadly in the justice system, but only rarely show up in state appellate court opinions.  As with actual innocence cases, one should look at them much like a small statistical sample, each one representing many more unseen cases out in the world.

There are other aspects of ineffective assistance the committee should have addressed, not the least of which are high caseloads among attorneys appointed to represent indigent defendants. A recent Texas Tribune story found that, in Travis County, "the 10 private Austin-area attorneys with the most appointments handled an average of 533 cases in 2017." In Harris County, totals run even higher! The Texas Indigent Defense Commission has created excellent tools for analyzing these topics, so the issue is ripe for more detailed study.

The underfunding of indigent defense at this level amounts virtually to a structural guarantee of ineffective assistance. From a political perspective, this is not a bug, it's a feature. Texas' indigent defense systems were created, and most recently upgraded (2001), during a period of tuff-on-crime excess. They were designed to facilitate convictions, not to defend against them. After all, if defense lawyers were better, counties would need more prosecutors (who also have excessive caseloads), judges would have to respond to more motions, and court dockets would fluctuate considerably before reaching some new, for-now unpredictable equilibrium. Basically everything about the courts gets a little more expensive and everybody has to work a little harder.

That said, Grits doesn't buy complaints that indigent defense costs are an "unfunded mandate" from the state, any more than prosecutors' salaries are an "unfunded mandate." The budgetary arrangement for many decades in Texas has been that counties take care of funding local court and jail costs and the state pays for prisoners they send to TDCJ. I'm not against the state contributing more on indigent defense, but IMO it should only be done if counties pick up some of their share of the "unfunded mandates" running in the other direction in the form of long prison sentences, possibly through a cap and trade arrangement.

Underfunding indigent defense is a concern, and more funding must be part of any solution, but it's not happening in a vacuum, and it's not the only cause of ineffective assistance.

RELATED: Spotlight on ineffective assistance: Barriers to remedies

Path cleared for reduced pot penalties in TX House

Chairman Joe Moody

Before yesterday's House Criminal Jurisprudence Committee hearing on Chairman Joe Moody's HB 81, which would reduce penalties for low levels of marijuana to a civil penalty, Grits commented to a friend that the over/under for how many people would testify against it IMO was probably 1.5.

"Under" won. Only one person spoke against the bill last night, Ector County DA Bobby Bland (not to be confused with the late, great blues singer of the same name, who would certainly have favored the measure).

Consider that: No police chiefs testified against. The Sheriff's Association laid off the bill. So did the Texas Probation Association and all its members. No anti-drug advocates were against it. No neighborhood associations. No mayors or city council members. No county commissioners. No teachers, or doctors, or mental health advocates. No judges. No police unions. None of those groups, or even individuals from their ranks, came out against the bill. Just one lone prosecutor from Odessa spoke against it, with DAs from larger jurisdictions all neutral or in favor. (See MSM coverage from the Express News.)

This remarkable development was not lost on Vice Chairman Todd Hunter, who for these purposes is more importantly the Chairman of the House Calendars Committee. That's the panel which sets bills that have passed out of committee for floor votes by the full House. He intoned in a warning-filled baritone that only one person had testified against the bill that night - Mr. Bland, the Ector DA - and the chairman did not expect to see anyone who had failed to oppose it in committee come out against HB 81 later in the process.

Chairman Todd Hunter

This was a significant caution, with an implicit threat behind it. As chair of the Calendars Committee, Hunter is in a position to punish special interests who don't heed his admonition by failing to set their other favored bills for floor votes. Only someone with no proactive agenda at the capitol at all would want to place themselves in those crosshairs, and that certainly doesn't include any of the interests listed above.

In all, this was a positive first step on a long path for HB 81. Last session, the bill got a hearing late and then was heard in a free-for-all alongside a pot-legalization bill that distracted from all the pragmatic arguments for Moody's measure. This time, the bill was heard in the second substantive hearing of the Criminal Jurisprudence Committee and, barring the unforeseen, should be voted out as early as next Monday.

Hunter's commentary makes me think the bill should receive a relatively warm reception in the Calendars Committee, which means we may FINALLY get to see a House floor vote on reducing marijuana penalties in Texas. Since the 2005 session, when a bill to reduce low-level penalties to a Class C cleared the same committee unanimously under then-Chair Terry Keel, Grits has believed the votes were there on the House floor to pass this bill or something similar, if the leadership would ever let it onto the floor. Maybe this is finally the year. It's about damn time!

In an aside: More than 4,500 Just Liberty supporters have sent emails to their state legislators supporting Moody's bill over the last three months, and we'll be going out again on the topic if and when it's out of committee. Go here to sign up if you're not already on the list.

House committee: Raise age of criminal culpability from 17-18

The Texas House Criminal Jurisprudence Committee in its interim report (pdf) recommended raising the age of criminal culpability from 17 to 18 years old. What sorts of offenses are seventeen year olds committing in Texas?

Like teenagers in the juvenile system, 17-year-olds are typically arrested for non-violent, relatively minor offenses as demonstrated. In 2013, for example, 44% of all 17-year-olds arrested were arrested for larceny, marijuana possession, violating liquor or public drunkenness. Also, between 2012 and 2013, arrests of 17-year-olds dropped by 20 %, going from 32,981 arrested in 2012 to 26,274 arrested in 2013.

In all, "17-year-olds added up to about 3% of all adult arrests in 2013." So in the scheme of things we're talking about a significant but not monumental change. There's an excellent, in-depth discussion of this issue in the report that we'll come back to later when the legislation is heard and which is mandatory reading for those interested in the topic.

The committee also recommended expanding eligibility for expunction and shortening the waiting periods before people can apply for orders of expunction or non-disclosure. MORE: See an analysis of this section of the report from Bryan attorney Lane Thibodeaux.

They would expand regulation, modestly, of criminal history sales by the state. They would expand pretrial diversion and treatment programming for mentally ill defendants.

On graffiti, they suggested expanding abatement programs and raising the penalty thresholds to adjust for inflation.

They advocated reducing the number of criminal penalties outside the penal code, and expanding community supervision for state jail felonies, including implementation of "split sentencing" where a defendant is supervised on probation following a brief incarceration stint.

Grits may have more to say on these topics later when I've had a chance to read the report but for now I wanted to pass along the link. Read the full thing (pdf) for yourself.

New Juvenile Justice committee in Texas House; other rules changes

Grits finally had a moment to go through this session's rules for the Texas House of Representatives, as approved in HR 4. (Read them here for yourself.) Here are some changes which may interest Grits readers:

Juvenile justice was taken out of the Corrections Committee's domain and given its own committee: Juvenile Justice and Family Matters, which will have seven members. (Chairs and members haven't been named yet.) As a practical matter this was probably a good move: The Corrections Committee has a big enough task with oversight of the adult system to delve into juvenile stuff in depth during the brief 140 day session. But there may also be a political angle to the division given that Sen. John Whitmire and Tony Fabelo are openly talking about shuttering more youth prisons. The appointment of the chairman may tell a lot about whether the Speaker agrees with Whitmire regarding further downsizing at the Texas Juvenile Justice Department.

The House Criminal Jurisprudence Committee will have seven instead of nine members. I liked it with nine. C'est la vie.

Bill analyses must henceforth include "a statement indicating whether or not the bill or resolution expressly creates a criminal offense, expressly increases the punishment for an existing criminal offense or category of offenses, or expressly changes the eligibility of a person for community supervision, parole, or mandatory supervision."

Bills that create new crimes, increase penalties, change probation or parole eligibility must now say so in the bill caption. IMO they should have gone further by requiring those bills to have a fiscal note, meaning they'd have to be accounted for in the budget. In the past, the Legislative Budget Board insisted nearly all bills increasing penalties or creating new crimes would have no significant fiscal impact on the state, though the cumulative impact off passing dozens of new crimes and "enhancements" each session has been enormous.

This will be helpful: The Parliamentarian must now give written explanations for rulings on points of order, including cites to precedent. The whys and wherefores of point of order denials have long been a mystery - maybe this will promote more consistency.

It's regrettable that this change was necessary: "The committee coordinator may exclude from the committee coordinator's office or refuse to interact with a member or a member's staff if the member or member's staff engages in abusive, harassing, or threatening behavior." Wouldn't you love to learn the backstory behind that new rule?

The General Investigative and Ethics Committee was given additional authority including the power to propose articles of impeachment and to investigate misconduct by political appointees at agencies. Given what's happened recently at the Department of State Health Services and the Legislature's run ins with UT regent Wallace Hall, this could be a highly significant development.

The Technology Committee was eliminated and science and tech issues were handed to the renamed Government Transparency and Operation Committee. The language describing their turf is theoretically broad enough to include forensic science but DPS crime labs and the Forensic Science Commission remain under the jurisdiction of the Homeland Security and Public Safety Committee, whose jurisdiction didn't change.

The rules further limited access to media credentials and created a method for legislators who want to challenge a reporter's credentials if they engaged in lobbying or advocacy on the floor. I've never heard of that being an issue, so unless there was some episode last session of which I'm unaware, this seems like a solution looking for a problem. UPDATE: A reader reminds me the media credential issue was in response to Michael Quinn Sullivan, FWIW.

Shannon Edmonds on why Court of Criminal Appeals outcome in DeLay case '180 degrees' from Abbott's Supreme Court interpretation

The Texas Public Policy Foundation's Marc Levin has been promoting the idea of codifying the rule of lenity, so I was interested to hear prosecutor association rep Shannon Edmonds' take on the topic, testifying Tuesday before the House Criminal Jurisprudence Committee:

We have it in Texas already. We have it in Texas for cases that are outside the Penal Code, basically. It was just applied in the Tom DeLay case, okay, in which the Court of Criminal Appeals used it to interpret a statute 180 degrees differently than the Texas Supreme Court interpreted the same statute in the Elections Code. And the Court of Criminal Appeals applied it because it was a crime outside the Penal Code.  And the result is, they said the tie went to the defendant in that case rather than in the Texas Supreme Court case, then-Justice Abbott had found that someone could sue under the same Elections Code provision, and it all had to do with mens rea.

Shannon said the rule of lenity is an "obscure legal issue" that "egghead appellate lawyers" argue about in court after the fact and that existing statutory construction case law covers what Levin wants done. He cautioned specifically against applying the rule of lenity to penal code offenses. Elizabeth Henneke from the Texas Criminal Justice Coalition followed Edmonds and offered effective, lawyerly counterpoints to his position, for those interested in the specifics. See her written testimony.

Grits emailed DeLay's attorney, Brian Wice, to ask his opinion of Shannon's comments. He responded:

His comments about the rule of lenity being "an obscure legal issue" marginalize a tenet of the criminal law that is a fail-safe mechanism in cases such as DeLay where prosecutors were permitted to manufacture an illegal act out of a series of perfectly legal ones and to not merely prosecute Mr. DeLay but to turn his life upside town for almost a decade before the CCA put an end to their legally bankrupt persecutorial ploy.

And his half-hearted snarky remark about "eggheaded appellate lawyers" was, simply put, bush league. He can say what he wants. At the end of the day, the vote in DeLay was an 8-1 smack-down against the good folks he shills for. He can have the soapbox.  We got scoreboard.

You can listen to the hearing here. The discussion of the rule of lenity is the first item, with Edmonds comments on the topic coming at the 49 minute mark and Henneke following after him.

Levin: Create new barriers in House rules to new crimes, penalty enhancements

Grits liked Marc Levin's suggestions to the House Criminal Jurisprudence Committee yesterday to reduce the proliferation of new laws and criminal penalty enhancements every session. 1) To create criminal penalties outside the penal code should require both the Criminal Jurisprudence Committee and whatever committee normally handles the code to approve the bill. Anything that slows down the process for new criminal penalties would be helpful, he said. For example: 2) Disallow new crimes and enhancements from being passed on the House Local and Consent Calendar. He also suggested, 3) "strengthening the fiscal notes" for bills with new or enhanced criminal penalties to better reflect the true costs, particularly to local government and 4) requiring captions to state if the bill includes new crimes or penalty enhancements.

Levin noted that we have a process for "Sunsetting" agencies but not outdated criminal laws. He pointed to the example of Minnesota's governor calling an "Un-Session" to repeal outdated, duplicative and unnecessary laws and suggested the Legislature should create some sort of interim commission similar to that suggested in unsuccessful legislation by state Rep. Steve Toth last session. See the new TPPF by Vikrant Reddy on the topic, "More Law, Less Justice: The Proliferation of Non-Traditional Crimes in the Texas Legal Code" (pdf).

Shannon Edmonds from the Texas prosecutors' association told the committee there were now more criminal offenses in the Texas occupations code than the penal code.

Former Statesman reporter now director of TX House Criminal Jurisprudence Committee

At the beginning of yesterday's House Criminal Jurisprudence Committee meeting, Chairman Abel Herrero, a Corpus Christi Democrat, announced the appointment of former Austin Statesman reporter Miguel Liscano as committee "director" (which is presumably different from "clerk"). Liscano went from UT-Austin's Daily Texan to brief stints at the Fort Worth Star-Telegram's Austin bureau and the Waco Tribune Herald before landing at the Statesman, where he spent seven years. During the 2012 cycle he worked as an opposition researcher for political campaigns before joining Herrero's staff.

Liscano recently completed a masters degree from UT-Austin's LBJ School of Public Affairs where he worked with a team which "analyzed the possible effects of raising the age of juvenile jurisdiction in Texas from 17 to 18. We examined similar laws in other states, paying close attention to the process and methods advocates used to make the change happen. My colleagues and I also interviewed stakeholders in Texas to figure out how such a change might affect our state," according to his LinkedIn page.

Congrats, Miguel, and good luck with your new gig.

Upcoming crimjust Lege hearings

There are four criminal-justice themed committee hearings next week in the Texas House of Representatives that may merit Grits readers' attention (links go to the agendas):

House Criminal Jurisprudence (Oct. 7, 10 a.m.): Regulating sale of criminal histories; consideration of crimes outside the penal code in terms of mens rea and the rule of lenity; expunction and non-disclosure orders; the effectiveness of graffiti laws; and the effectiveness of state jail system and the use of probation for state jail felonies.

House Homeland Security and Public Safety Committee (Oct. 7, 2 p.m.): Will hear an interim charge related to emergency planning and receive updates on border security operations, the aftermath of the West fertilizer plant explosion, and draft legislation on the Driver Responsibility Surcharge.

House Corrections (Oct. 8, 10 a.m.): "Assess the impact of school discipline and school-based policing on referrals to the municipal, justice, and juvenile courts, and identify judicial policies or initiatives designed to reduce referrals without having a negative impact on school safety."

House Corrections (Oct. 8, 1 p.m.): Evaluate facilities, programming and reentry services at the Texas Juvenile Justice Department.

Should Texas increase age at which justice system charges youth as adults?

Grits hasn't gotten a chance yet to watch yesterday's Texas House Criminal Jurisprudence Committee hearing on potentially raising the age at which youth are prosecuted as adults from 17 to 18, which would bring Texas in line with the feds and most other states. But here's the MSM coverage that I've seen so far:

• Austin Statesman
• Austin Chronicle
• Amarillo Globe-News

According to the Statesman, "Only eight states, including Texas, automatically direct every 17-year-old into the adult criminal justice system, while two others include 16-year-olds. In 40 states, adulthood begins at age 18." Notably, that number may soon rise to 41 as New Hampshire is considering changing it in their current legislative session, AP reported last week.

It's worth noting, as the Statesman report did, that "Even if the law were to consider 17-year-olds to be juveniles, the worst offenders could still be certified as adults and tried in the adult system." LBJ School instructor Michele Deitch told that committee that, "In Texas, any felony committed at age 15 and older can lead to adult certification; the eligible age drops to 14 for capital murder and other serious crimes." Further:

According to Deitch:

• Teens in the adult criminal justice system are 36 percent more likely to commit suicide and 34 percent more likely to be rearrested for a felony than those who stayed in the juvenile justice system.
• Teens have needs that the adult system is not designed to meet. Most are in high school, many were victims of abuse and 70 percent of youth in custody have a mental illness.
• In 2012, the vast majority of arrested 17-year-old Texans were charged with misdemeanors and nonviolent crimes — theft, marijuana possession, nonaggravated assault and disorderly conduct were the top four — at rates that were little different from 16-year-olds.

I'm going to try to watch the lengthy hearing online soon and may have more to say on the subject after I've heard the whole thing. This was an "interim charge" given the committee by the Speaker of the House and the Lege won't consider legislation on the topic until 2015.

Let me know in the comments what you think are the potential benefits and drawbacks of changing the age at which youth are charged as adults.

MORE: See testimony (pdf) from the Texas Criminal Justice Coalition's Elizabeth Henneke.

Should Texas raise the age at which youth are criminally liable as adults?

The Texas House Criminal Jurisprudence Committee on March 25 will hold a public hearing on an important and potentially contentious topic from their list of interim charges: "Study the classification of 17-year-olds as adults in the criminal justice system of Texas."

The issue arises frequently because the feds don't categorize youth as adults until they're 18, which has caused disjunctures, for example, regarding capital sentencing and various other topics.

Also, advancements in brain science call into question whether 17 or even 18 year olds have fully developed cognitive functions that make them as accountable as, say, someone in their 20s - as a practical matter, if not a legal one.

Should make for an interesting discussion. Let me know in the comments what you think about the possibility of raising the age - probably to 18, like the feds - at which youth may be held criminally liable as adults versus processing their cases in the juvenile justice system.

Legislators blast prosecutor association for Twitter taunts

The Texas District and County Attorneys Association was called out in the House Criminal Jurisprudence Committee today for "demagoguery" on its Twitter feed by Rep. Matt Schafer, while Rep. Steve Toth called their lobbyist Shannon Edmonds "totally disingenuous" and "dishonest" for some of his Twitter comments accusing committee members of being sympathetic toward cop killers.

The episode reminded me of John Bradley's posts on the DA's user forum coming back to haunt him in the Senate Nominations Committee last session, except this essentially happened in real time, with Shannon tweeting from the back of the room and legislators calling him out for it on the dais.

Over the years I'm afraid Grits has become jaded. I've heard that sort of demagoguery so often from prosecutors' representatives at the Lege that it almost seems normal. But clearly most of the legislators on the dais hadn't been exposed to such attitudes.

They were debating SB 23 remaking sentences for capital offenses committed by juveniles to comply with the Supreme Court's ruling in Miller v. Alabama. The bill passed out of committee 7-2 in the same form it cleared the Senate but will likely be amended on the House floor.

UPDATE: Go here to watch the exchange, which begins with comments by Rep. Toth at the 43:50 mark. Rep. Schafer chimed in on the topic at the 53:10 mark, followed by Reps Carter and Canales.

MORE: See SA Express-News coverage of the hearing. The bill is scheduled for a House floor vote on Friday.

Wiretapping bill dead mainly because Dallas cop was a jerk

Image via Emergent Chaos

The bill Grits put the most effort into killing this session was SB 188 by Huffman (and its companion, HB 530 by Fletcher) expanding authority of local PDs in big cities to engage in wiretapping. It was a bad bill but no one opposed it in the Senate. And Grits probably wouldn't have stuck my nose into the fray if it weren't for the untoward behavior of one of the bill's most prominent backers.

The two main proponents of the wiretap expansion bill - Det. Jimmy Taylor from the Houston PD and Frederick Frazier from the Dallas Police Association - were also the individuals most prominently opposing HB 1608 by Bryan Hughes requiring warrants to obtain cell-phone location data. Det. Frazier had been particularly hostile and abusive toward Rep. Hughes' poor, unsuspecting staffer assigned to the bill, who'd never before been on the business end of such vitriolic police tirades. ("Welcome to my world," I told her.) One day I came into the office and she was on the phone with Frazier holding the receiver a foot away from her ear with an aggrieved look on her face as he screamed into the line. I could hear him halfway across the room.

Grits is not a fan of such bullying behavior, particularly when it's aimed at a well-intentioned twentysomething staffer from my hometown who's working her butt off for my bill! So in retaliation, I authored an op ed against his wiretap expansion bill in the Houston Chronicle and shared it with the House Criminal Jurisprudence Committee staff, submitted written testimony against the bill at the public hearing on the House side, and visited with committee members' offices behind the scenes to scuttle Frazier's pet legislation. To be sure, members of that committee weren't hard to convince and perhaps the bill would have perished anyway, but there was no other public opposition. By the time I made the rounds after the hearing I could count at least six (out of nine) votes against it. Despite a 30-1 vote in the Senate (and btw, kudos to Craig Estes for opposing it), the bill never made it out of committee on the House side.

My purpose was not just to kill a bad bill, which is always a plus, but also to send a message to Mr. Frazier and his ilk: Next time be more polite, pick on somebody your own size, and if you decide to launch an all-out war against reform bills you dislike, keep in mind that strategy may come back to bite you on your own legislation. It did on SB 188.

Written testimony against expanding local PD wiretap authority

Read written testimony your correspondent submitted on his own behalf to the Texas House Criminal Jurisprudence Committee asking them to reject HB 530 by Fletcher and its senate companion SB 188 by Huffman expanding the authority of the largest police departments to perform wiretapping without Department of Public Safety oversight. Right now when local PDs want to use wiretaps they must get DPS to perform the actual interception or else partner with the feds. Grits readers have seen much of the detail before but I didn't want the bill to make it through committee and to the floor without somebody at least registering opposition. Here are the main points from the written testimony:

• Wiretaps are seldom requested by local PDs
• Agencies saying they want them rarely ask
• Texas maintains greater accountability by keeping invasive surveillance technology at one agency
• There's no harm in the feds doing most of the wiretapping
• Don't expand authority before updating laws to account for 21st century technology

As I told Rep. Allen Fletcher and his chief of staff yesterday when I stopped by their office to give them a copy of the testimony before the hearing, I've been opposing this bill since it was John Whitmire and Debbie Riddle carrying it, and possibly before then. So just as there's no pressing need for this bill, with so few agencies requesting wiretaps each year, there's also no rush. If the committee shoots it down, it'll be back again next session.

MORE: From the Dallas Observer's Unfair Park blog.

See past Grits posts related to the bill:

• Local police want to bypass DPS on wiretapping but rarely use labor-intensive tactic
• Lege shouldn't needlessly expand wiretapping authority
• If it ain't broke ... no need to expand wiretapping authority to local PDs
• Texas bucks national trend on state-level use of wiretapping, feds do 98% of them

Criminal discovery bill to be heard in Civil Jurisprudence Committee Monday

I find it interesting that Sen. Rodney Ellis' SB 1611 - now a one-sided open-file bill for Texas prosecutors instead of a reciprocal discovery bill as originally filed - has been referred to the House Judiciary and Civil Jurisprudence Committee and scheduled for a public hearing on Monday, April 29th. One might have expected the bill to be referred to the Criminal Jurisprudence Committee, since that's where criminal discovery bills filed in the House with identical captions were sent.

This is the second bill I've noticed where similar or identical legislation from the Senate was sent to another committee than House Criminal Jurisprudence which heard the issue the first time. (This is the other.) Speaker of the House Joe Straus makes those calls. It's curious that the committee hearing the discovery bill most likely to pass isn't the one that's been considering the issue for the last month. Hard to know whether to read anything into that or not.

ALSO: The Homeland Security and Public Safety Committee on May 1 will hold a public hearing on the fertilizer plant explosion in West, which I suppose makes some sense but is a change of pace from the topics they usually cover.

On the importance of visual aids: Location tracking edition

Mike Ward at the Austin Statesman has a nice feature in today's paper on the push to require a warrant for police to access historical personal cell phone tracking information ("Should police require a warrant to track cellphone users? Some legislators think so," March 31), an effort in which your correspondent has been privileged to be involved through the Texas Electronic Privacy Coalition. His article opened:

As the video played in the Texas Capitol meeting room, the red target jerked back and forth across the map, tracing every movement that Malte Spitz, a German politician, had made during several months in 2009 — when he was riding a train, when he was at a nuclear protest, when he was in meetings or at a store, and when he was at home.

Who was tracking him? His cellphone.

Using records of cell use — from phone calls to Twitter usage to Web access — Spitz was able to construct “an exact road map of what he did,” as state Rep. Bryan Hughes, R-Mineola, explained to fellow lawmakers gathered in the room. He was tracked in Germany by his phone company, and he sued to get his own records to see how minutely his movements could be tracked.

In much the same manner, Hughes explained, law enforcement in Texas and across the United States is using call-tracking information in investigations. That has led to questions about whether the technology violates the constitutional right to privacy or whether it is simply a high-tech shortcut to solve crimes.

A large group of Texas legislators wants to ban the practice unless police obtain a court order, and the issue is pitting tea party activists and others who oppose intrusive Big Brother government against the police, who say it is a boon to solving crimes. The House bill alone has nearly 100 co-authors in the 150-member chamber.

“This is a case where the law needs to catch up with technology,” Hughes told the wide-eyed House Criminal Jurisprudence Committee, as the video ended. “There seems to be broad consensus that accessing this information should require some form of probable cause. … It doesn’t require that now.”

Here's a link to the video referenced in the lede demonstrating Green Party politician Malte Spitz's cell-phone tracking data mapped over six months and linked to his public Twitter and Facebook entries. The fact that legislators were "wide eyed" when the video was shown to them well after midnight tells you Spitz's infographic was quite the attention grabber. Keep in mind that this data was compiled by his phone company in 2009, but the more towers that exist, the more accurate the tracking. The rise of smart phones has necessitated construction of thousands of new towers and antenna nationwide, so historical tracking today is much more accurate than when Herr Spitz sued his phone company to get his location data and will continue to become more accurate as time goes on and even more cell towers and antenna generate ever-more data points. I bet Mr. Spitz never thought his lawsuit results would be presented as Exhibit A by a Republican legislator in Texas to show how invasive location tracking could be. (See Spitz's TED Talk.)

Regrettably, the article continues to perpetuate a false characterization from the hearing about how personal location data is currently obtained. Ward quoted Brian Tabor of the Dallas Police Department who opined, “We have a problem with raising the bar from reasonable suspicion (that does not require a warrant) to probable cause (that does). It takes away a valuable tool.” That comment, though, misstates the current standard law enforcement must meet to use cell phone tracking, which under Texas and federal law is authorized merely when the information may be "relevant." "Reasonable suspicion" is not required under Texas law except for physical mobile tracking devices like those at issue in US v. Jones. And some agencies, like the Texas Department of Insurance, don't even rise to that threshold, obtaining location data from cell phone companies under an administrative subpoena without any contact with a judge, according to testimony at the hearing.

One other clarification: Mike slightly understated the bill's support when he wrote that it has "nearly 100 co-authors in the 150-member [House] chamber." As of Tuesday, the day the bill was heard in committee, HB 1608 had 101 "co-authors," four "joint authors," plus of course the primary author Bryan Hughes for a total of 106 out of 150 House members, or 71% of the Texas House, so far. Six of the nine House Criminal Jurisprudence Committee members are presently primary, joint or co-authors, and 9 of 15 members on the Calendars Committee have also signed on to support the bill as co-authors. Anything can happen, but that's an enviably optimistic starting point for HB 1608.

Ward depicted support for the bill as sort of a Tea Party uprising - he wrote, "the issue is pitting tea party activists and others who oppose intrusive Big Brother government against the police, who say it is a boon to solving crimes" - but support for requiring warrants for cell-phone tracking is more bipartisan than that. Looking at the list of 106, a majority of both Democrats and Republicans in the lower chamber have signed on to support the bill. Rep. Hughes has done a terrific job of promoting the legislation across party lines..

BTW, if your state rep is not on this list, then call them to ask them to become a co-author of HB 1608 (you can look up their contact info here.) If your state rep is already on the list, call them to say thank you and ask them to hang tough on the warrant and reporting requirements.

See related, recent Grits coverage:

• Your past is not your own: Police say historic location data not invasive.
• Bill filed to require warrant for cell-phone location tracking by law enforcement
• First MSM coverage of push to require warrants for GPS tracking by law enforcement
• Regulate GPS tracking of cell phones, electronic devices by law enforcement
• Half of law enforcement requests for personal cell phone data require only a subpoena
• Media flurry on bills requiring warrants for location tracking
• Location tracking and biometrics conference: A roundup of Grits posts 
• Sen. Estes: Get a warrant for cell-phone location data
• Big Government run amok: Obama Administration says citizens have no 'reasonable expectation' the government won't track  them everywhere they go

New, lesser marijuana offense would reduce strain on local budgets

At the Texas House Criminal Jurisprudence Committee this morning , Rep. Harold Dutton has a bill up, HB 184, that would significantly reduce county indigent defense costs and prevent law enforcement from diverting limited local police resources from more important duties by carving out possession of an ounce or less of marijuana and making it a Class C misdemeanor. Presently, possession of up to two ounces is a Class B misdemeanor and if the bill passes, possession of one to two ounces would still fall under the higher penalty category. But possession of a lesser amount would become a fine-only offense. According to the Department of Public Safety, there were 69,770 arrests for marijuana possession in 2011 (the last year for which data is available), up from 57,172 in 2003.

Counties must pay for lawyers when an indigent person is charged with a Class B misdemeanor but Class Cs - because the defendant is not at risk of a jail sentence - do not entitle the defendant to a county paid attorney. Since nearly 60% of drug possession arrests in this state are of pot smokers - and most are not for large amounts - this legislation would reduce indigent defense and county jail costs for people caught with user-level quantities of pot while still maintaining the drug's criminal status. And of course, Class C offenders pay fines, contributing income to county coffers, while offenders sent to jail cost taxpayers money.

From a fiscal perspective, Dutton's bill makes loads of sense. But perhaps, for a change, this year it may make political sense, too. In 2005 under leadership of then-Chairman Terry Keel, this same committee approved a similar bill unanimously, with several Republicans including Keel and Rep. Debbie Riddle voting for the measure. But then-Speaker Tom Craddick would not allow the bill to go to a floor vote, ostensibly to "protect" the members from voters like this guy. With a different Speaker and a fresh, new committee - plus public opinion on the subject changing dramatically - it's a good time to take another serious run at the proposal.

Rep. Dutton has modified the legislation from the version that passed out of the House Criminal Jurisprudence Committee back in 2005, which would have simply reduced the penalty category for up to two ounces to a Class C misdemeanor. This bill carves out a new, lesser offense category for possession of smaller amounts, though penalties would increase for someone repeatedly caught with the drug.

This bill pales in comparison to developments in Colorado and Washington state, where legalize, tax and regulate laws were approved by voters in the November election. All pot possession under Dutton's bill would remain a criminal offense. But the bill would afford more equitable punishment for the lowest-level offenders, provide tremendous relief to county indigent defense costs, lessen population pressure on county jails, and keep more police officers on the street, letting them focus on more serious offenses. Rep. Dutton has a reputation as a liberal, but in many ways HB 184 is a profoundly conservative bill.

Legislators learn about forgiveness, justice at hearing on innocence commission bill

Grits spent much of yesterday at the House Criminal Jurisprudence Committee, which heard legislation calling for creation of an Innocence Commission to study the causes of wrongful convictions. As in the past when this bill has come up, several Texas exonerees testified in favor of the legislation, offering up powerful narratives of injustice that the committee clearly found moving and compelling.

Several legislators expressed astonishment that more exonerees aren't bitter and angry about what happened to them - Rep. Terry Canales said if he were falsely convicted of a terrible crime, he could be legitimately charged with arson upon exoneration because he'd want to "burn down the courthouse." To be certain, some of them do feel that way. But having had the privilege of working with exonerees for several years now in the course of my duties with the Innocence Project of Texas, the grace and aplomb exhibited by most no longer surprises me. Numerous exonerees have said the same thing to me when I've expressed similar views to Rep. Canales: They must forgive those who wronged them, for their own peace of mind. Holding on to anger harms the angry person more than it harms anger's targets, I've been told many times, which is a bit of hard-earned wisdom from which we could all benefit. The Lord's Prayer, an exoneree once told me, asks God to "forgive us our trespasses as we forgive those who trespass against us." He went on to add, though, that it took many years in prison before he realized that forgiveness was necessary for his own, personal tranquility. He could never be happy, never move on with his life, until he forgave those who wronged him. I've never forgotten that conversation and hope I never will. To me, that attitude represents the epitome of Christian charity at a depth so profound I can hardly fathom it.

Anyway, the committee was remarkably receptive to Rep. McLendon's bill. Here's an excerpt from YNN-Austin's coverage of the hearing:

Texas may lead the country with 47 post-conviction exonerations, but some legislators argue the Lone Star State needs to do more to ensure that innocent men and women aren’t sent to prison.

Lawmakers have proposed House Bill 166 to do just that. The bill would create the Timothy Cole Exoneration Review Panel.

Named after Timothy Cole, a man who died in a Texas prison while serving time for a crime he did not commit, the commission would investigate the cause for wrongful convictions. It would then place prosecutors and judges under the spotlight.

“If it saves one person from going being incarcerated wrongfully in jail for one day, then it did its job," Rep. Terry Canales said. 

Released from prison in 2008, Johnny Lindsey served 26 years for a rape the courts now know he didn't commit.

"Prosecutor misconduct, that is the thing that is causing all of these problems," Lindsey said.

Notably, the legislation enjoys bipartisan joint and co-authors, including Republicans Myra Crownover, Susan King, and Mike Leach, and Democrats Joe Moody and Terry Canales (Leach, Moody and Canales are all on the committee) and the members on the dais clearly were supportive of the idea. Chairman Abel Herrero was especially complimentary of bill author Ruth Jones-McLendon for bringing the legislation.

Shannon Edmonds from the prosecutors' association spoke last and attempted to muddy the waters by implying that an innocence commission was unnecessary because it duplicates work by the innocence clinics at the four public law schools in Texas. Those comments, however, ignore reality. Yes, when exonerations result from work by innocence clinic students - as happened in four cases in 2012 - they are obliged by statute to write a report detailing the causes of the false convictions and suggest ways to prevent similar travesties of justice in the future. But the overwhelming majority of Texas exonerations have not come out of those clinics, but from the work of private lawyers, the Texas and national nonprofit Innocence Projects, reviews of old cases by the Dallas District Attorney, and other actors outside the clinics.

Shannon's point is well taken, though, that the work of an Innocence Commission would dovetail nicely with the work  of the law-school innocence clinics, building on the work already being done. The Innocence Commission bill includes no money in its fiscal note, instead operating with administrative support from "the Legislative Budget Board, the University of Texas at Austin, and any other state agency able to assist the commission." It could also apply for grants and accept private donations. But if the innocence clinics receive the extra funding provided them in the Senate Finance Committee recommendations - which upped the clinics' budgets to $150,000 per year in their committee markup - it's possible they could assist an innocence commission in preparing similar reports for all innocence case as they're now doing for exonerations that come through their own labors.

Judging from reactions from the dais, the bill seems certain to pass out of committee. Last session the legislation died on the House floor on a more or less party line vote, but the bipartisan support evidenced in the committee and the bill authorship perhaps bodes well for a better outcome this time around.

Go here to watch the hearing on the bill for yourself. It begins at about the 47:00 minute mark.

MORE: See additional coverage from the Austin Chronicle and the Dallas Morning News.