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.

Tim Cole statue unveiled in Lubbock, and other stories

Here are a few items from the last week that may interest Grits readers but which lost out in the competition for time with my paid work:

Tim Cole memorialized by VIPs at statue unveiling
Lubbock this week unveiled a 13-foot tall statue of Timothy Cole, who was falsely convicted of rape in that county and died in prison before his innocence could be proven. Lots of VIPs there, including Gov. Perry and both the Democratic and Republican nominees to succeed him. See CNN's coverage, AP, and the Lubbock Avalanche-Journal. Perhaps the best way politicians could honor Timothy Cole next session would be to pass the final, unfinished recommendation from the Timothy Cole Advisory Panel: Requiring police to record custodial interrogations for serious offenses.

Texas Association of Business goes 'Smart on Crime'
A left-right "Smart on Crime" coalition formally announced this week including the Texas Public Policy Foundation, my part-time employers at the Texas Criminal Justice Coalition, the Texas Association of Business, and Goodwill Industries. The big news here really is the Texas Association of Business stepping up to the plate more seriously on the subject. Their interests are mainly in continuing adequate supply in the labor market, but at this moment in history that aligns their interests with less-government reformers on the left and right who think limited state resources should be spent on more productive endeavors than incarceration.

Abuses reveal Houston cops' mercenary view of ticket writing
Prosecutors in Houston will dismiss hundreds of Class C charges, reported the Houston Chronicle (Sept. 18), because four police officers lied on the tickets, claiming their colleagues were present at the stop so they could cheat on their overtime records. The four officers were recently "relieved of duty" and are "being investigated for criminal conduct." One frequently hear politicians claim the purpose of ticket writing is to enforce the law, not generate revenue.  But for these cops it was about generating revenue: overtime, for themselves.

Harris DA candidates: End key-man system of grand jury selection
Both R and D District Attorney candidates in Harris County believe the key man system of selecting grand juries should be eliminated, reported HouChron columnist Lisa Falkenberg (Sept. 18). So do I. Problem is, judges make those appointments and nobody can tell them what to do but the Legislature. So if you want to change how grand juries are picked, the candidates might be running for the wrong office. I'm old fashioned that way, but I'd prefer the candidates debate stuff that's actually part of the DA's job.

The Driver Responsibility surcharge is still a catastrophe
The Texas Observer's Forrest Wilder has a column decrying Texas' Driver Responsibility surcharge; nothing regular Grits readers haven't heard before but he outlines the problem well and expresses the appropriate level of outrage at one of the most dysfunctional programs in all of state government.

Who is operating fake cell phone towers in Texas, US?
Popular Science wondered, "Who is running the phony cell-phone towers around the US?" (Sept. 15). Like me, they think it's probably cops and spooks. See prior Grits coverage.

Making slime
Off topic, but this was a lot of fun to do with the granddaughter this morning. A big hit. Eight year olds love to make slime.

Epic Fail: Critiquing the 'Driver Responsibility' surcharge

At the Texas Tribune, Cathaleen Qiao Chen has a substantive overview of problems with the Orwellian-named "Driver Responsibility" surcharge in which your correspondent is quoted. Long-time readers know of Grits' profound disdain for this program, in which 60% of assessed penalties go uncollected. Around 1.3 million Texans currently have suspended licenses because of the surcharge, which is a civil penalty assessed in addition to criminal fines and penalties for offenses like driving with an invalid license, no insurance, and DWI. Williamson County Justice of the Peace Edna Staudt told the Trib that "she believes the program is unconstitutional because it penalizes drivers twice for the same violation."

I'm all for funding the state's trauma hospitals but this is the wrong way to do it. Better to pay for them out of the general fund or charge sin taxes on alcohol or junk food. A slight reduction in the amount socked away in the state's "rainy day fund" would easily do the trick. Besides, the state isn't distributing all the money to hospitals anyway, hoarding hundreds of millions in the "dedicated" account for trauma centers in order to help balance the budget. There's enough money in that account that, at current payment rates, the state could fund trauma centers through 2021 even if the Lege decided to abolish the surcharge next year. And half the surcharge money goes off the top straight into the general fund - hospitals never see most of it.

I've been performing some consulting work for the Texas Criminal Justice Coalition on the topic, helping them prepare reform proposals for a legislative committee hearing on Monday. Grits will post more on the topic after the hearing.

See prior, related Grits posts:

• Could Texas Driver Responsibility Surcharge become an election issue? Examining reform suggestions 
• DPS announces 'incentive program' rollout on driver surcharges
• Be thankful: Incentive program all the fix we're getting for now on surcharges
• Lege committee looking to tweak Driver Responsibility program; incentive program about to gear up
• Piling on: TPPF offers more reasons to abolish Driver Responsibility surcharge
• House rep promotes abolition of Driver Responsibility surcharge
• Is 2013 the year legislators axe Orwellian-named Driver Responsibility surcharge?
• Did the Driver Responsibility Surcharge cause Texas' voter ID law to be rejected?
• Few defendants getting surcharges waived by judges based on indigence
• Grits to DPS: Enact incentive rules for Driver Responsibility surcharge now
• Amendment tells DPS: Implement incentive rules for Driver Responsibility surcharge
• Hospitals: Driver Responsibility surcharge an unreliable funding source
• What's the one thing John Whitmire and Leo Berman have in common?
• Declining DWI convictions and the unmitigated failure of the Driver Responsibility surcharge
• Federal suit filed to declare Driver Responsibility surcharge unconstitutional
• DPS Director: No public safety benefit from Driver Responsibility Surcharge
• Prosecutors altering charging decisions to avoid Driver Responsibility surcharge
• Driver surcharge boosting Texas joblessness
• Unexplored costs from DPS surcharge harm safety, the economy
• Driver Responsibility surcharge 'devastating' for court system
• Bill author says 'overly punitive' Driver Responsibility surcharge a 'mistake'

Arguments against variances to cram more inmates into Harris County Jail

Harris County Sheriff Adrian Garcia is seeking yet another variance from the Texas Commission on Jail Standards to house extra prisoners in the county jail, even though the county and local law enforcement have failed to implement jail diversion programs that could prevent overcrowding. See:

• A letter from state Senators Whitmire, Ellis and Garcia criticizing the plan, and
• Suggestions for diversion alternatives from the Texas Criminal Justice Coalition

The letter from senators includes the following, highly relevant observations:

Our primary concern is that Harris County leadership is not fully utilizing "alternatives to
incarceration, including diversion initiatives and reentry efforts to reduce recidivism," as required on a request for a variance under 37 Tex. Admin. Code § 299.3(8). Variances are unnecessary when there are numerous, effective solutions that can be implemented to not only reduce jail population and eliminate the need for variances, but also increase public safety through more effective and efficient crime reduction strategies.

Over the past few years, problems in Harris County's criminal justice system, which have
contributed to its jail overpopulation, have been well documented. The most widely cited report documenting these problems was requested by Harris County and published by the Justice Management Institute (JMI) in June 2009. The JMI report found two overarching issues resulting in Harris County's jail overcrowding: 1) over-incarceration of drug possession offenders and those with mental illness combined with overreliance on jail as the primary — and often sole — resource for handling persons whose law-breaking is basically a result of substance abuse and mental illness, and 2) underutilization of pre-trial tools.

Historically, the jail has been able to reduce overcrowding by expanding the use of good time credit for eligible inmates and taking advantage of now-overturned policy changes regarding prosecution. Despite the progress made, persistent problems remain, and numerous readily available solutions to those problems — many of which were outlined in detail over four years ago in the JMI report — have not been utilized.

At the very least, County leadership must consider implementing front-end diversion programs similar to Dallas' Prostitution Diversion Initiative, evidence-based programs that divert addicts and the mentally ill into treatment, electronic monitoring, and reentry programs and services that will keep exiting individuals from re-offending.

As recommended by the JMI report, reducing the number of persons booked into the jail — or even brought to the inmate processing center prior to formal booking — is the first stage to help alleviate crowding. Pre-arrest diversion of persons who have committed relatively minor nonviolent offenses is one obvious way to reduce the intake of new inmates.

There are also thousands of low-level drug possession arrestees who could be more effectively addressed through pre-trial diversion, deferred adjudication, probation based on accurate assessments, and various other means of diversion available. These methods of diversion are more effective at reducing crime, a more efficient use of resources, avoid giving these non-violent offenders felony records, and reduce the county jail population. Further, revising intake, charging, and plea negotiation policies and practices in cases involving persons who are accused of relatively low-level offenses and whose conduct does not pose a danger to others will also help with overcrowding and encourage pre-trial diversion. Lastly, bail bond practices and pre-trial services need to be modernized to reduce pre-trial jail populations.

As the largest county in Texas housing the fourth largest city in the nation, Harris County should be at the forefront of implementing and perhaps even creating programs that ensure a safe and secure community and the efficient use of taxpayer dollars.

The continued granting and use of variance beds may prevent immediate crises, but it is not a long-term solution. In addition, it may prevent true collaborative efforts at the local level that could foster real, lasting reform. With that in mind, we urge you to thoroughly review the current variance request, take into consideration the above-mentioned issues, and recognize that more capacity is not the only solution. Ideally, this variance request process should motivate key criminal justice stakeholders in Harris County to reevaluate the options available to them and take steps to implement real jail reduction strategies.

Report bolsters graffiti reform legislation

The Texas Criminal Justice Coalition has published a new report by my pal Jorge Renaud on graffiti law and policy. See their press release and the report (pdf) itself. The release is timed to coincide with the House Criminal Jurisprudence Committee hearing HB 3494 by Rep. Joe Moody this afternoon (previewed here) which, according to TCJC would:

implement a permissive pretrial diversion program with graffiti cleanup mandates and better address low-level graffiti offenses. 

• H.B. 3494 will allow a pretrial diversion program, requiring community service and victim restitution, for long-term reductions in recidivism and its associated costs.  Participation in a deferred prosecution program, as based on the consent of the district attorney, will require community service, including graffiti removal where possible, and may involve participation in outreach education focused on graffiti prevention and eradication, youth mentoring in art programs, mural painting, or other available community service opportunities. Furthermore, successful completion of the program may result in dismissal of the charges.  This will give a fair chance to individuals who have taken responsibility for their actions, helping them avoid the reentry barriers typically associated with a criminal record.

• H.B. 3494 creates a new, minor offense level (a Class C misdemeanor) for graffiti that causes up to $200 worth of damage.  Currently, all graffiti up to $500 worth of damage is a Class B misdemeanor, which brings with it potential county jail time.

• H.B. 3494 adjusts value amounts for certain graffiti offenses.  Current offense thresholds for graffiti offenses were set in 1993 and do not reflect two decades of inflation.  Consequently, the penalty grades for graffiti do not appropriately correspond to the value of the property that has been damaged.  So what amounted to a Class C misdemeanor 20 years ago may constitute a Class B misdemeanor today – a de facto “criminal inflation.”  Amending the threshold offense amounts for graffiti will save taxpayer dollars otherwise needlessly spent on incarceration costs for increasingly low-level offenses.

“H.B. 3494 will ease the financial burden on property owners, seek to involve community members in cleanup and beautification, and result in positive behavioral change in graffitists, instead of merely seeking harsher penalties that criminalize and punish,” said Dr. Ana Yáñez-Correa, TCJC’s Executive Director.

See prior, related Grits posts:

• Toward a restorative graffiti policy
• Graffiti solutions: A cost-benefit analysis
• Texas 'students do without art' but streets still open to graff writers
• Best ever graffiti prophylactic: 'We're going to get this kid a job'
• New Dallas 'free walls' for graffiti should expand to underutilized public spaces 
• What exactly is so great about a plain grey wall?
• New Dallas graffiti czar looking past criminal justice approaches
• Kids do less art in school, more in street, Lege reacts with hammer
• Creating public spaces for invited art adds carrot to stick of banning uninvited graff
• Invited graffiti: Solution or enabling for unwanted tags?
• Paint responsibly: Museum offers hands-on graffiti exhibit
• Allowing invited graff best way to reduce unwanted graffiti
• Austin lags on important third component of graffiti policy
• Mexico prevents graffiti by encouraging it at El Azteca Stadium
• Moscow turns to invited graffiti to liven up Soviet era buildings
• Sending a message on graffiti: Two approaches
• Out of our minds: Isn't felony graffiti overkill for sixth graders?
• Charging graffiti as a state jail felony?

Sunset process gives public chance for input at TDCJ

The Texas Criminal Justice Coalition has put up a helpful page encouraging people to get involved in the Texas Department of Criminal Justice Sunset process between now and the next session in 2013. A notable excerpt reads:

If you care about criminal justice reform, now is the time for you to speak up and voice your concerns. Presently, the Sunset Advisory Commission has begun its review of TDCJ and other criminal justice-related agencies, including the Board of Pardons and Paroles, the Windham School District, and the Correctional Managed Health Care Committee. Based on its evaluation, the Commission will make recommendations on how each agency can be improved or whether the agency should be abolished.

You can take part in this opportunity for improvement by letting us know what should be done to improve Texas' criminal justice agencies. TCJC has created a comprehensive guide to the Sunset process to help individuals understand the process, how they can get involved, and what resources are available.  To download a PDF version of our guide to Sunset please click this link: Policy Guide to the Sunset Review Process, and to download a 1-page flyer on how to participate in the Sunset process, please click this link: Share Your Story - Participate in TDCJ's Sunset Review Process!

If you wish to participate by filling out a questionnaire, please click the link here: Sunset Questionnaire.  We are also providing a questionnaire that is specifically directed toward incarcerated individuals.  If you would like to print a copy and mail it to someone you know, please download the PDF version by clicking here: Incarcerated Persons Questionnaire.

An agency's Sunset review typically only occurs every 12 years, so we must seize upon this rare opportunity to improve the criminal justice system. Through the Sunset process, and with your help, we can achieve the necessary reforms that can make Texas' criminal justice system a model for others.

Go here for more detail. Here's TDCJ's self-evaluation report (large pdf), here's the one (pdf) for the Board of Pardons and Paroles, there's a separate one (pdf) for the Windham School District, and one more forthcoming for the Correctional Managed Health Care Committee. Here's the home page for the Sunset Advisory Commission. 

How can you get involved (beyond filling out TCJC's questionnaires above)? Basically, start by reading the above-linked self evaluations with a fine tooth comb. If you dispute anything in them or have recommendations for reform they didn't include, put them in writing, submit them to Sunset staff, then come to the public hearings when they're announced and testify about your specific concerns. You can also present your ideas to staff at the Sunset commission or in the offices of individual legislators on the Sunset Commission. TCJC is right that the Sunset process presents unique opportunities, even if it requires playing the long game. It's an important chance to identify problems and promote solutions that won't come along again for more than a decade.

'Cost-Saving Strategies for Texas' Criminal and Juvenile Justice Systems'

Yesterday I received a fact-filled email from the Texas Criminal Justice Coalition addressing a variety of topics that may interest Grits readers. Here are some notable excerpts:

Policy Solutions

TCJC is thrilled to announce our third policy guide, Cost-Saving Strategies for Texas' Criminal and Juvenile Justice Systems. This year, we have created four independent booklets that address each of TCJC's major areas of policy interest.  Click on the links below to download each part of our guide: Part 1: Responsibly Reduce Incarcerated Populations to Increase Public Safety and Taxpayer Savings Part 2: Provide Tools for Returning Individuals to Live Responsibly and Remain Law-Abiding  Part 3:  Strengthen Indigent Defense Systems and Improve Court and Conviction Practices  Part 4: Protect Youth and Communities by Implementing Responsible Juvenile Justice Strategies Throughout Texas Each of these parts offers comprehensive, cost-efficient strategies that the state and counties can employ to address Texas' immediate financial deficit, as well as preserve public safety throughout our communities in the future.

 2nd Annual Indigent Defense Summit

Improving Quality and Accountability During a Fiscal Crisis

Join us on Tuesday, March 1, 2011, at the Texas Capitol for the 2nd Annual Indigent Defense Summit!  Scheduled panels include indigent defense priorities for the 82nd Legislative Session, advancements in Texas' private and public defender offices, smart strategies to reduce costs and increase safety, the role of indigent defense in addressing racial disparities, and the consequences of inadequate indigent defense funding.  For more information, view the full agenda here. This year's event is sponsored by Senator Rodney Ellis, the National Association of Criminal Defense Lawyers, the Texas Criminal Defense Lawyers Association, the Texas Court of Criminal Appeals, the American Bar Association, and the Texas Task Force on Indigent Defense. Click here to register to attend!  There is no registration fee and the event includes 6 hours (0 ethics) of CLE.

Policy Center

TCJC has also updated our Public Policy Center for the 82^nd Legislative Session. 

If you were not able to attend the following committee hearings, you will find the testimony TCJC provided on budget and innocence issues:

House Appropriations Committee, Subcommittee on Criminal Justice Hearings:

February 15, 2011:  Budget Articles I, VI, & V regarding the Task Force on Indigent Defense and the Office of Court Administration.  To read TCJC's testimony, click here!

February 16, 2011:  Budget Articles I, VI, & V regarding the Texas Commission on Jail Standards.  Click here!

February 17, 2011:  Budget Articles I, VI, & V regarding the Texas Department of Criminal Justice, the Texas Juvenile Probation Commission, and the Texas Youth Commission.  Click here!

Senate Finance Committee Hearings:

February 22, 2011:  Budget Article IV regarding the Task Force on Indigent Defense and the Office of Court Administration.  Read TCJC's testimony, click here!

House Criminal Jurisprudence Hearing:

February 22, 2011: Regarding the following bills authored by Rep. Pete Gallego:

• HB 215 - Relating to photograph and live lineup identification procedures in criminal cases.  To read TCJC's testimony, click  here!
• HB 219 - Relating to the electronic recording and admissibility of certain custodial interrogations. Click here!
• HB 220 - Relating to procedures for applications for writs of habeas corpus based on relevant scientific evidence. Click here!

In coming weeks, we will continue to update the Public Policy Center with bill analyses, House and Senate Committee reports, and related policy documents.

You will also find our fact sheet on re-thinking criminal enhancements.
 
Click here to visit our Public Policy Center!