Reflecting on Rick Perry's criminal-justice vetoes

Grits has suggested in the past that Texas Gov. Rick Perry has signed more criminal justice reform legislation, arguably, than any sitting U.S. governor. And it's true.

It's also true, though, that some of his vetoes have been particularly damaging to the reform cause. The Austin Statesman performed an an analysis of Perry's vetoes and found that 38 of his 301 vetoes have been in the criminal justice realm. Some I agreed with; many IMO were misguided. Several, regrettably, were bills I've worked on. C'est la vie. Anyway, here are what I consider Perry's worst criminal-justice related vetoes:

Maximizing police arrest powers

Photo via The Economist

SB 730 (2001): After the US Supreme Court ruled in Atwater v. City of Lago Vista that Texas police officers could arrest a Central Texas soccer mom for a Class C misdemeanor traffic offense (in this case, a seat belt violation), the Lege passed bipartisan legislation (Chris Harris in the Senate, Senfronia Thompson and Robert Talton in the House) to forbid arrests (with four limited exceptions) for offenses where the ultimate potential penalty would not include incarceration. Perry vetoed that bill and the extra authority he granted peace officers that day in 2001 has been a source of significant mischief, not to mention additional jail overcrowding pressure, in the intervening years.

There was a second veto related to the Supreme Court's Atwater ruling in 2003, though regrettably the Statesman's database misidentified the bill. SB 1597 by Hinojosa was a watered down version that would have required police departments to enact written policies regarding when their officers may effect arrests for Class C misdemeanor violations. Perry vetoed that, too. And his threat of vetoing related bills essentially closed the issue for a decade after the 2003 compromise bill went down.

If the grassroots wing of the GOP had been in ascendance back in '01 and '03 the way they are today, I seriously doubt Perry would have vetoed these bills. But back then the former Democrat was more beholden to the police unions than to small "l" libertarians in his party base. 2005 represented the last session when the governor appeared to openly carry water for them and these "Soccer Mom Bills," as they were dubbed in the media (after the defendant in the Lago Vista case), were high on the unions' hit list in the years following the turn of the century.

Nixing restraints on police search power at traffic stops
Another unfortunate Perry veto in 2005 nixed a requirement that law enforcement obtain written or recorded oral consent before searching a vehicle at a traffic stop unless they had probable cause, in which case they didn't need it. SB 1195 by Hinojosa was good public policy, both informing drivers of their rights and generating more and better data about the murky world roadside searches. When the Austin PD began requiring written or recorded consent, the number of so-called consent searches at traffic stops declined dramatically. This was an excellent bill and Perry's veto was one of my personal biggest political disappointments during his reign.

No to Blue Warrant relief for county jails
I know there are still Sheriffs frustrated with the governor's 2007 veto of HB 541 by Trey Martinez Fischer that would have allowed parole violators arrested on "blue warrants" (an alleged parole violation) to be released on bond awaiting revocation hearings. This is a perennial complaint from counties - that housing the parolees is an unfunded mandate from the state, which is essentially true - and the governor dashed the hopes of many a local official when he throttled this modest assistance to counties to address jail overcrowding.

Don't tell ex-prisoners about voting rights
It still sticks in my craw that Gov. Perry vetoed a bill in 2007 to provide eligible inmates with voter registration information upon release. That seemed like a small thing and his veto motives appeared transparently partisan, especially after the bill was sent to his desk by a Republican-controlled Lege.

Other Veto Errata
Perry famously line-item vetoed the budget for Tony Fabelo's old Criminal Justice Policy Council, ostensibly because Fabelo issued prison population projections that necessitated either spending on prison construction or passing bills to promote de-incarceration. I've never understood why he vetoed Todd Smith's bill exempting Romeo and Juliet relationships (four years difference or less) from sex offender registration statutes - it passed 131-12 in the House, unanimously in the Senate. Perry has also been hostile to good-time credits applied to inmates seeking parole (vetoed bills in '05 and  '07), and in 2005 he insensibly vetoed Jerry Madden and John Whitmire's comprehensive probation reform package, though he signed an essentially similar bill the following session and now takes credit for it on the campaign stump.

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Grits has occasionally dared to hope that the Lege might revisit some of these topics now that we'll have a new governor in 2015.

If Sheriffs want reimbursement for 'blue warrant' prisoners, will counties reimburse state for incarcerating felons they send? Maybe they should

A commenter pointed to a lengthy report offered up yesterday by the Longview News-Journal's Sarah Thomas ("Jail officials seek reimbursement or bail for prisoners with blue warrants," Jan. 20) giving voice to the Sheriffs Association of  Texas' biennial lament that they must house prisoners jailed on "blue warrants," which means they've somehow violated their terms of parole and are being held until a hearing that will determine whether they're revoked back to prison:

Members of the Sheriffs’ Association of Texas met this past week to prepare for battle again with state lawmakers over an issue costing area taxpayers.

The contention is blue warrants, which are issued by the Texas Department of Criminal Justice Parole Division. They act as an order to arrest and hold parole violators in county facilities without bail or reimbursement — and therein lies the problem.

The biennial battle between county sheriffs and the Texas Legislature centers around counties being required to feed, bed and provide medical treatment for the state’s inmates, often for months at a time.

Sheriffs across the state are looking for the 83rd Texas Legislature to pass a bill that would make parole violators eligible for bail or require state reimbursement to counties for their services.

“This is the No. 3 issue on our list after mental health and border security,” said Brazos County Sheriff Chris Kirk.

Notice that, like the police unions and prosecutors, the Sheriff's Association these days sees the Legislature as an opponent against whom they must "prepare for battle," in Thomas' words. Here are the latest data on blue warrants from a side bar accompanying the story:

Blue warrants by the numbers

• 4,104 blue warrant inmates are serving time in county jails.
• 1,651 of those inmates committed a technical violation.
• 2,453 blue warrant inmates have new charges pending.
• 64,302 inmates (including blue warrant offenders) are housed in jails across the state.
• 6.4 percent of all county inmates are blue warrant inmates.
• 89 of the state’s 254 counties have no beds available.

          Source: Texas Commission on Jail Standards

New laws TDCJ is planning for that you may not have heard of

The Texas Department of Criminal Justice has posted this summary (pdf) of legislation affecting the agency on its website, and Grits wanted to point out several highlights that haven't received a great deal of attention:

TDCJ-OIG gets pen registers for contraband investigations
Though underreported compared to more pricey approaches, probably the most efficacious piece of legislation passed this session related to reducing contraband was "HB 2354 by Madden - allows TDCJ's Office of Inspector General to possess and use a pen register during criminal investigations regarding escapes and prohibited substances and items in a correctional facility." (Added per commenter request.) Pen registers, or what back in the days of phone lines used to be called "trap and trace" devices, let TDCJ-OIG investigators access without a warrant a list of every phone number calling to and from a particular line if it's part of an escape or contraband investigation. They only get the list of numbers, they can't listen in on that authority to the content of the calls.

Reducing inmate numbers, a little
Very few bills on the list will reduce TDCJ's inmate population, but two notable exceptions are:

• HB 2649 by Allen - allows a judge to award diligent participation credit for participation in a work, treatment, educational or vocational program to a defendant convicted of a state jail felony, in an amount not to exceed 20% of the original state jail felony sentence.
• HB 2734 by Madden - requires as a condition of parole that an illegal alien released to the custody of the U.S. Immigration and Customs Enforcement leave the United States and not return by unlawful mean.

The Anti-'Enhancement'
Since this blog rails against the biennial passage of dozens of new crimes and (Orwellian-named) "enhancements" of old ones, I should give full credit for passage of a rare bill moving the chains in the other direction.

HB 3384 by Madden - removes the provision allowing a previous conviction for a state jail felony offense to be used for enhancement purposes (in most cases). Punishment for a state jail felony offense may be enhanced to a third degree felony if it is shown at trial that the defendant has been twice previously convicted of a state jail felony.

The Governor signed this legislation, according to the capitol website, reiterating last week's politics-make-strange-bedfellows theme where Grits and Rick Perry inexplicably ended up on the same side of various, sometimes high-profile issues. This topic has received less attention, of course, than the Governor's recent concern over groping by TSA employees in the airport. 

Summons instead of arrest for technical revocations of long-term parolees
County sheriffs will welcome this legislation if the Parole Division will embrace this change from arrests to summons, reducing the number of so-called "blue warrants" issued for administrative violations to long-term parolees:

HB 2735 by Madden - requires the Parole Division to issue a summons for a hearing before a parole panel, rather than an arrest warrant, to a parolee charged with an administrative violation of parole more than three years after having been placed on supervision. The parolee must not be serving a sentence for, nor previously been convicted of, an offense that would require sex offender registration and must not be on intensive or super-intensive supervision parole, be an absconder, or have been determined to be a threat to public safety.

Plugging probation into state planning; combining CSCDs?
Another underreported piece of legislation will generate a lot more comparative information about what services probation departments provide to their charges, and what they cost:

HB 3691 by Gallego - requires the TBCJ to adopt rules regarding contracts between community supervision and corrections departments (CSCDs) and between judicial districts and CSCDs in another judicial district. The bill also adds the CSCD director as a member of the community justice council and requires CJAD to prepare a report containing a summary of the programs and services included in each community justice plan (CJP), which would be submitted to the LBB along with the agency's legislative appropriations report.

The bill also, according to this description, envisions potentially combining some smaller probation departments in the future: "If CJAD (TDCJ) determines that a CSCD's or regional partnership of CSCD's report could create a savings to the state, CJAD may award a one-time lump sum equal to 35% of the savings and may also provide incentive payments for certain achievements over a biennium." The process by which TDCJ-CJAD "determines" this will be interesting to watch

Property transfers
A couple of real estate deals to watch during the interim: We already knew that the state would close the Central Unit in Sugar Land and sell the acreage around it, which is surrounded by an airport, a business park, and a new minor-league baseball stadium. This list confirms that "HB 2004 by Bonnen - requires the Texas Board of Criminal Justice (TBCJ) to sell approximately 2200 acres at the Ramsey unit in Brazoria County." So it'll be interesting to see in whose hands that property ends up. Further, "HB 2518 by Kolkhorst – requires the Texas Board of Criminal Justice to transfer to the board of regents of the Texas A&M University System 2.536 acres of property for the use of the Texas Forest Service. The property is currently leased from TDCJ by the Texas Forest Service."

New costs likely for jails, state from TDCJ's 'flagrant' violation of constitutional law

For the second time this month, the Texas Court of Criminal Appeals has told the Department of Criminal Justice and the Board of Pardons and Paroles to begin holding a lot more hearings to provide parolees due process, decisions which come with a high financial price-tag that's accounted for in neither the House nor Senate budgets.

Earlier, the CCA ruled that the Board of Pardons and Paroles couldn't apply sex-offender registration conditions ("Special Condition X," in the parlance) without a hearing when the offender hadn't been convicted of a sex offense. Nearly 7,000 parolees are affected by that one. Now, we learn from Liberty and Justice for Y'all of an important new case that, even though the defendant's habeas writ was denied, will almost certainly, radically change how TDCJ handles parole revocations, requiring preliminary hearings mandated by the US Supreme Court that the agency had been skipping because of convenience, funding, and a desire to help out prosecutors.

In Ex Parte Bohannan, the CCA denied relief because TDCJ belatedly held a "preliminary hearing" in order to moot the parolee's due process claim. The CCA agreed it was moot for him, but a concurring opinion (pdf) by Judge Michael Keasler, signed by three other judges, declared in the strongest possible language that the failure to provide preliminary hearings "violates a releasee’s constitutional rights, and our experience with this issue establishes that the Board, pursuant to the policies established by the TDCJ, Parole Division, has violated, and continues to flagrantly violate, clearly established constitutional law."

TDCJ filed an amicus brief in which it said there is "no reasonable expectation" that they'll anytime soon begin to hold such hearings, to which the concurrence said, "This is patently unacceptable. And if [TDCJ] 'reasonably expects' to continue this policy, it does so at its peril."  Extraordinary!

The concurrence even offered legal advice to parolees seeking relief in the future, declaring that while a habeas corpus writ "does not provide an adequate remedy at law ... to compel the Board to comply with its ministerial duty," a "mandamus clearly does. And in response to any future alleged violations on mandamus, as time is of the essence, it may be necessary and appropriate for TDCJ and the Board, through their legal representatives, to appear before us in person to answer any allegation that Morrissey’s mandate is being disobeyed."

So if TDCJ complies with the advice from concurring CCA judges, or if the CCA later acts on a mandamus motion, the practical result will be that the state must hold many more hearings than in the past, and since the CCA is interpreting a US Supreme Court ruling, the Legislature can't pass a law getting around it. Moreover, counties would face an additional burden from offenders with "blue warrants" languishing in jail waiting for TDCJ to process them.

Complying with the opinion would have at least two major consequences. TDCJ would need to hold thousands of preliminary hearings that would've been skipped for alleged parole violators. And counties must hold parolees in jail longer while they await those hearings. Currently, parolees who receive preliminary hearings prior to revocation spend an average of 13 additional days in county jail compared to cases with only a revocation hearing, according to the 2009 annual report (pdf) of the Board of Pardons and Paroles.

The Houston Chronicle reported in December, "Each month, an average of 2,286 state parole violators are housed in Texas jails, a policy costing taxpayers at least $42 million a year. Harris County has the largest tab — estimated at $7.6 million." I'll guarantee that if parolees on blue warrants are each in jail an average of 13 additional days, you'll soon hear counties wailing like scalded cats when they realize the implications.

The opinion argues strongly for the Lege to pass pending legislation to let parolees jailed on blue warrants out on bail, a bill that Gov. Perry vetoed in 2007. It also argues for the state to reduce the number of technical parole revocations, since they'll now cost more for both the state and counties than in the past. TDCJ isn't prepared to handle all these additional hearings and the Lege hasn't budgeted for them.

That said, maybe it's not right to frame this opinion as placing an "additional" burden on TDCJ or the counties, because really they had that burden all the time and just weren't carrying their full weight. The state has been skating on parolees' rights in the name of cost and convenience for many years, with state courts going along to get along. So it's rather startling to see the CCA finally focused on parolee due process questions. They're opening a can of worms that won't close any time soon.

Sheriffs: Let technical parole violators bond out of jail

The Sheriff's Association of Texas will be pushing next year for passage of a law which was vetoed by Gov. Rick Perry in 2007 allowing bail for parolees arrested on technical violations. Reports the Houston Chronicle ("Sheriffs say new parole law could free beds," Dec. 13):

Each month, an average of 2,286 state parole violators are housed in Texas jails, a policy costing taxpayers at least $42 million a year. Harris County has the largest tab — estimated at $7.6 million. This year, Harris County has had from 900 to 1,250 parole violators in jail each month.

As local and state budgets get increasingly tightened, Sheriff Adrian Garcia and other members of the Sheriffs' Association of Texas are asking the Legislature for help with jail costs.

"I stand with sheriffs across Texas who have agreed on allowing state parole violators who are in our custody for technical reasons, and technical reasons only, to post bond," Garcia said in a statement released by his office. "Allowing them to make bond for technical issues makes sense because we need jail space for those violators who are committing new crimes and have yet to go through the criminal justice system."

Brazos County Sheriff Chris Kirk, who chairs the association's legislative committee, said changing the law to allow bond for parole violators is the group's second-highest priority for next year's legislative session, trailing only border security issues.

"The folks that are under parole violation (warrants) eat up a lot of our beds in our jails across the state, and bed space is a very precious resource for the counties,“ Kirk said. "So to lose 10 to 20 percent of your beds to parole violations is a terrible impact on that resource."

The story quotes ""Williamson County District Attorney John Bradley [describing] legislation to allow parole violators to bond as 'a weak-on-crime, bad bill.'" But the Sheriffs Association isn't generally subject to "weak on crime" criticisms and I'm not sure that particular bit of mudslinging will stick. Bradley says a better solution would be to speed up hearings for violators, but in the current budget environment that's probably not a realistic demand.

Gov. Perry in the past has signed legislation he previously vetoed on behalf of prosecutors - most prominently the landmark 2007 probation reforms, which Perry earlier vetoed in part at Bradley's request in 2005. Perry approved probation reform for the same reason this legislation has a chance next year: The economic reality of full prisons ran up against "tuff on crime" ideology, just as the reality of full county jails arguably trumps the criticism that letting technical parole violators out on bail is "weak on crime." Now that counties have racked up tens of millions annually in incarceration costs in the years since Perry vetoed the legislation the last time, perhaps popular sentiment against excessive government spending will alter the terms of debate to allow this idea to be implemented.