The #TexasGeorgeFloydAct: What component bills are still moving in the #txlege homestretch?

Over the weekend, your correspondent put together an update on the status of all the various bills that make up the Texas George Floyd Act for the 65-group coalition promoting them, so let's re-post it here for Grits readers who may be interested. There are four weeks to go in the legislative session, so all these bills are in the make-or-break home stretch.

The Texas George Floyd Act, as distinct from federal legislation by the same name, fundamentally has eight component parts. These have also been broken up into individual, stand-alone legislation, and six of the eight have passed at least one chamber in the Texas Legislature and still have a chance to pass in 2021:

GFA Components:

Ban arrests for traffic offenses ☑

Ban chokeholds ☑

Improve use-of-force standards ☒

Duty to render aid ☑

Duty to intervene ☑

Qualified immunity ☒

Disciplinary matrix ☑

Corroboration in drug cases ☑

Here’s a list of individual bills still moving as of May 2, 2021, along with a summation of what’s not:

HB 830: Banning Class C arrests. This bill was scaled back in committee to ban arrests only for traffic offenses in the Transportation Code. Still, this change would have eliminated roughly 95% of the 64,000 arrests at Texas traffic stops in 2019. The bill passed the Texas House with a bipartisan vote of 113-18, including 57 Democrats and 56 Republicans. It has yet to be referred to committee in the senate.

SB 69: Banning chokeholds and neck restraints by police unless it “is necessary to prevent serious bodily injury to or the death of the officer or another person.” The bill passed the Senate unanimously and is not yet scheduled for a hearing in the House.

HB 833: Improving use of force standards to require an imminent threat. This legislation did not make it out of the Homeland Security and Public Safety Committee and probably can no longer pass this session.

SB 2212: Duty to render aid. This legislation passed out of the senate unanimously, but could be improved to clear up some ambiguity around when the duty is triggered. Officers should render aid unless there’s an “imminent threat.” Alternatively, their duty to render aid to injured members of the public should be the same as when a police officer is injured. It has been referred to the House Homeland Security and Public Safety Committee and there will be a public hearing May 5th.

SB 68: Duty to intervene. This legislation requires law enforcement to intervene when they witness excessive force when a list of four qualifying factors are met. We believe meeting any of these factors justifies intervention and the bill need modest amendment to achieve its goals. The bill is scheduled for a hearing in the House Homeland Security and Public Safety Committee on May 5th.

HB 614: Qualified Immunity: Creating a new cause of action for civil rights violations that bypasses qualified immunity was one of the most prominent demands in the original Texas George Floyd Act. But it has received the most pushback of all and has not moved in either chamber.

HB 829: Creating a disciplinary matrix to ensure fair punishment. In civil service cities, a common excuse for arbitrators overturning police-officer discipline is punishment that differs from other cases. This bill requires those departments to have a disciplinary matrix specifying presumed punishments, and tells arbitrators punishments within those ranges must be presumed reasonable. This will make it easier for chiefs to fire bad cops and make it stick. This bill has yet to be referred to committee in the senate.

HB 834: Corroboration of police testimony in drug cases. This legislation reacts to George Floyd’s conviction based on the testimony of corrupt Houston narcotics officer Gerald Goines in a case with a fabricated informant. This is another bill that passed out of the Texas House with solid bipartisan support, this legislation enjoyed support in the lower chamber from the Sheriffs Association of Texas and the Texas Police Chiefs Association. This bill has yet to be referred to committee in the senate.

***

For more background, check out the special, two-part podcast from Just Liberty on the Texas George Floyd Act: Here's Part One and Part Two.

UPDATE (5/5): The three senate bills discussed above all passed out of the Homeland Security and Public Safety Committee today (SB 69 was added via a rules suspension) with support from the police unions but tepid backing from police-reform advocates, several of whom testified "on" rather than "for" the legislation. The duty to render aid bill lets officers delay assistance until the scene is fully secured, whatever that means. (For my money, Grits thinks they should be taught to "render aid" with the same alacrity and preconditions as if it were an officer who's wounded.) Meanwhile the duty to intervene applies only to excessive force, not other types of misconduct (e.g., fabricating informants, as allegedly happened in George Floyd's Houston drug case). The original Texas-George-Floyd-Act versions were broader. These are probably still an improvement over current law, barely, but the lowest-possible-impact versions of such improvements. With that said, the same committee earlier passed a governor-and-police-union-backed mandate for training on duties to render aid and intervene that the Attorney General says don't currently exist (the police unions disagree). So putting these duties formally on the books is important. But the versions passed by the senate are pretty weak tea.

A primer on the current status of bail-reform litigation in Texas

Are you confused about the status bail reform in Texas?

First Judge Lee Rosenthal issued a 193-page injunction in Harris County declaring their pretrial detention system unconstitutional. Then the 5th Circuit modified her order. Then the county made some changes. Then the 5th Circuit stayed part of the injunction it had previously approved. Then another federal judge in Dallas declared their bail system unconstitutional, issuing his own temporary injunction with different recommendations. And there's also litigation sitting out there in Galveston. Meanwhile, Gov. Greg Abbott and Texas Supreme Court Justice Nathan Hecht have proposed that the Texas Legislature enact bail reform. But how does what they want jibe with what the federal courts are saying, to the extent that can be divined? And how should occasionally-maligned risk-assessment tools be used as part of this process?

For a segment in the latest Reasonably Suspicious podcast, your correspondent sat down with Susanne Pringle, legal director of the Texas Fair Defense Project, which is one of the entities suing both Harris and Dallas Counties, to get a front-lines explanation of where Texas is at on bail reform and what all this means.

Because I imagine MANY people are as confused as I was about how all these moving parts fit together, I've pulled out that segment as a stand-alone audio file, and will include the transcript below. You can listen to Ms. Pringle's explanation here. I, for one, understood things a lot better after we talked. Give it a listen:

Find a transcript of our conversation after the jump.

Heat-litigation settlement adds pressure on Texas to decarcerate

In response to federal heat litigation, reported Gaby Banks at the Houston Chronicle, "Bryan Collier, executive director of the Texas prison system, is planning to relocate at-risk prisoners at 75 uncooled units to 29 prisons already equipped with air conditioning, according to two lawmakers briefed on the plan." A settlement will be reached this week over cooling inmates at the Pack Unit, Banks reported, but:

Other inmates could also benefit. Even before negotiating a deal, Texas prison officials began looking to move tens of thousands of vulnerable inmates into cooler quarters, perhaps to avert a swarm of additional lawsuits from other prisons.

“I’m not sure it would have happened without a federal lawsuit,” said state Sen. John Whitmire, D-Houston, chair of the Texas Senate's corrections committee. “It’s an attitude among the public and the Legislature, which speaks for the public, that we don’t want to spend money on people who are murderers and rapists.”

The 2014 suit filed by the Pack inmates challenged the deadly hot conditions inside the rural prison, saying they violated constitutional protections against cruel and unusual punishment. U.S. District Judge Keith P. Ellison has already concluded the state showed “deliberate indifference” to inmate conditions.

Sen. Whitmire has been making remarks like that for years on this topic, which probably didn't hurt the plaintiff's case that the indifference toward heat-related deaths was "deliberate."

But now, the federal courts have mooted legislative and for that matter public opinions. The state just has to pay for A/C or other cooling measures for various, vulnerable prisoner populations including the aged and infirm.

All of this was predictable. After the 5th Circuit said TDCJ could be sued, I'd opined that, "Grits expects TDCJ to ultimately lose the pending heat litigation and for the Legislature to eventually find itself forced to implement significant mitigation measures to reduce heat exposure of inmates and guards. It won't be popular but, if the 5th Circuit rules like they did in Louisiana, they won't have a choice." Now, that's exactly what happened.

The Lege is already spending $3.4 billion per year to house Texas prisoners. And despite beginning the 86th session facing billions of dollars of red ink, they'll now have to spend more per prisoner to pay to cool so many of them.

This puts even greater pressure on the Legislature to reduce prisoner populations and close more units. With crime declining, and public support for decarceration reforms on the rise, the cost of continuing to incarcerate Texans in the same numbers we did when crime was high makes little sense on its face. That goes double if the state must now pay to air condition a significant proportion of its 104 prison units. And it must.

Assessing Harris County bail litigation as it nears denouement

In last month's Reasonably Suspicious podcast, I interviewed Susanne Pringle, executive director of the Texas Fair Defense Project, about the denouement of the Harris County bail litigation, in which her organization was one of the plaintiffs. Since we spoke, Galveston County was sued by the ACLU over essentially similar grounds, and Dallas County already faced litigation over its bail system, so the Harris County domino falling may soon take down quite a few other county's pretrial detention regimens.

When Judge Lee Rosenthal issues her revised injunction in light of the 5th Circuit's ruling, in many ways it will be like firing off a starting gun. That document will set the parameters for bail systems throughout Texas, establishing a minimum floor for constitutionality. Any county continuing with a bail schedule or violating other shall-not portions of the injunction will find itself low-hanging fruit for a similar suit. So expect a lot of local-level activity on this front over the coming year, and probably a legislative reaction in 2019.

Here's the excerpt including the interview with Pringle:


Find a transcript below the jump.

Oral arguments at 5th Circuit Tuesday on Harris County bail reform case

Grits had half a mind to drive over to New Orleans today to hear oral arguments in the Harris County bail case tomorrow at the federal 5th Circuit Court of Appeals, but work and family responsibilities intervened. Regardless, I'm excited that the plaintiffs have reached this point. Good luck to our friends at Civil Rights Corps, the Texas Fair Defense Project, as well as Neal Manne and his colleagues at Susman Godfrey who've worked on this case.

The Texas Tribune had a good preview, and we discussed it in the Top Stories segment of the latest Reasonably Suspicious podcast. For more background (and excellent reading, for the genre), see District Judge Lee Rosenthal's order. See also a study from A&M evaluating the use of risk assessments to make decisions about pretrial detention.

MORE: See initial coverage from the Houston Chronicle. And from the Texas Tribune. And from the Huffington Post. And from the Houston Press.

AND MORE: See a press release from the plaintiffs following oral arguments.

What is the upshot of TDCJ heat litigation injunction?

Hard to know the full implications, yet, but the issuance of injunctive relief by a federal district judge in favor of inmates complaining of un-air-conditioned housing in TDCJ's Wallace Pack Unit surely changes the terms of debate surrounding heat-related deaths of Texas prisoners. See coverage from the Houston Chronicle and the judge's 100+ page order.

It's hard to know the implications for several reasons. First, the ruling only applies to one TDCJ unit, not all of them, and Grits is unclear of how this ruling might affect other facilities. Is it a one-off that only applies to the Pack unit, or will TDCJ be forced to adopt similar remedial measures to similarly situated inmates in other facilities?

Also, the judge's ruling that air conditioning must be supplied only applies to heat-sensitive inmates - i.e., inmates who are elderly, disabled, or who have special needs. It does not apply to younger, able-bodied inmates who are housed at the facility to do the work.

Still, it's going to apply to a lot of folks. From the ruling:

The parties stipulated that, as of September 18, 2014, the Pack Unit contained 728 men with hypertension (high blood pressure), 212 men with diabetes, 142 men with coronary artery disease, 111 obese men, 53 men with a psychiatric condition, 66 men prescribed an anti-psychotic medication, 22 men with cirrhosis of the liver, 84 men with chronic obstructive pulmonary disorder (“COPD”), 189 with thyroid dysfunction, and 113 with asthma. There are 188 men in the Pack Unit over the age of 65. Id. Many of these conditions overlap within one person. However, all of the conditions, individually, cause heat sensitivity[.]

If everybody with a psychiatric condition, everyone taking mental health meds, everyone with asthma, everyone over age 65, etc., all require air conditioning, TDCJ will find itself facing similar issues in dozens of facilities across the state.

It was also interesting to note that the judge believes some of TDCJ's heat mitigation methods are counterproductive. Fans used when the heat index surpasses 95 degrees Fahrenheit, for example, just blow hot air onto inmates and worsen the problem. Similarly, misters like those restaurants sometimes use to cool off patrons are less effective in prisons where they can't cover much area and over time actually serve to increase the humidity.

One interesting suggestion has arisen. Texas county jails overbuilt based on speculation that the mass incarceration boom would go on forever, and those facilities are air conditioned as required by state law and regulations by the Texas Commission on Jail Standards. The County Judge in Newton County has already suggested that TDCJ inmates could be housed in his facility.

This thought, though not a terrible idea, raises its own set of issues. First, Grits wouldn't support shifting inmates to county contracts unless the state simultaneously moved to close un-air-conditioned state-run units. I wouldn't want to see this plan become a back-door means to raising capacity during an era when we should continue cutting it.

Second, because many of the inmates subject to the injunction are special needs inmates, there'd need to be expanded training and maybe additional hiring of more qualified jailers and support staff in order to handle TDCJ's sick and elderly, which is a quite different demographic of inmate than those who routinely cycle through county jails. I'm not certain most local facilities are able to handle them, and extremely rural sites like in Newton County may not have access to medical and mental-health supports that inmates with special needs might require.

Still, if TDCJ moved special needs inmates to air-conditioned county facilities, ensured they received adequate medical and mental-health care, and closed some state-owned prison units that couldn't be retrofitted with A/C, Grits can think of worse outcomes.

All that said, like the federal judge, Grits believes TDCJ is vastly overstating the costs to upgrade the Pack unit to add A/C. So when the real numbers are acknowledged, it may be cheapest and most efficient just to improve the facility and continue to treat elderly and disabled inmates where they are. If the agency can provide air conditioning for their hogs, they can do so for sick and elderly inmates.

Finally, all this depends on what the 5th Circuit does in response to the state's appeal. They have upheld injunctive relief in other prisoner-heat cases but insisted it be cabined to inmates with special heat-sensitivity issues. This ruling tracks that reasoning pretty closely, but the makeup of the 5th Circuit could change soon and there's no way to predict what mood they'll be in when they consider the case. And if the case ended up with cert granted at the US Supreme Court, your correspondent wouldn't be particularly surprised.

Police accountability bills bottled up by House leadership, and other stories

Here are a few odds and ends that merit Grits readers attention while mine is focused elsewhere:

Tragic shooting colors legislative debates
A Balch Springs cop who shot a fleeing 15-year old with a rifle has been fired from his job and faces murder charges. See the Dallas Morning News coverage. This news spurred the black caucus in the Texas Legislature to issue a stern complaint that none of the important police accountability legislation proposed this session has received a vote on the House floor. Their frustration surely contributed in part to the death of HB 2050, which expanded secrecy provisions related to police misconduct cases.

Sandra Bland Act gutted in senate
The Senate Criminal Justice Committee this week passed out a radically stripped down version of the Sandra Bland Act, but quite frankly it's hard to get too excited about the minimalist items left in the bill. Wrote the Texas Tribune's Jonathan Silver:

Whitmire's version most notably removes language that would ban arresting people for offenses that generally only have fines as a punishment. Earlier versions of the bill also tried to make it easier for nonviolent people in jail to receive personal bonds. Whitmire said fine-only offenses would be addressed in a separate bill, as the Sandra Bland Act is "primarily a mental health, accountability" bill.

The problem with that bit of reportage is that the "separate bill" was SB 271, which had earlier that day appeared on the same agenda with the Sandra Bland Act. But Chairman Whitmire pulled that bill off the agenda hours before the hearing, much to the consternation of the bill author and supporters who believed they had sufficient bipartisan support to pass it out of committee. So Whitmire was pledging to address a problem in a bill which he had already killed just hours before. SB 271's companion, HB 574, is in the Calendars Committee and has yet to be posted for a floor vote. Unless leadership adds the bill to a Major State calendar, it's probably too late for it to be heard.

Remembering (the real) Sandra Bland
Meanwhile, as Grits has pointed out before, it's a bit anomalous to pass a "mental health accountability" bill in response to the Sandra Bland story because she was not, in fact, mentally ill.

Pensions and bill killing
Governing magazine has a nice feature on Houston billionaire John Arnold's efforts to reform public-employee pension plans. Meanwhile, the House debate over Houston pensions ramps up Monday, and every minute it goes on, legislation on the other side of that bill on the calendar dies. The lower chamber, which yesterday ended their workday at 3 p.m., has mapped out a leisurely, care-free stroll toward the Thursday deadline for the House to consider House Bills, not the frenzied pace of work one would expect as hundreds of bills approach a very final deadline. At this point, the House doesn't seem to have much appetite for passing any more legislation and everybody just seems to want it to be over.

Who can settle Harris County bail litigation?
A newly elected Democratic District Judge in Houston has asked the commissioners court whether he can settle with plaintiffs in civil rights litigation against the county's money-based bail system. The commissioners courrt replied that they don't control whether or not he settles, but his lawyer was appointed from the county attorney's office and told the judge she could not settle without permission from higher ups. It's an interesting question: If individual judges start to settle, how long can the county's oppositional approach remain viable?

Of trees, ropes, race, judges and capital punishment
A decidedly un-woke judge faces retraining for lynching suggestion.

Coda to Willingham saga: Did prosecutor commit misconduct?
Jordan Smith at the Intercept has a story from a trial in Corsicana to determine whether the prosecutor in the Todd Willingham case engaged in misconduct when he concealed a deal with a jailhouse snitch who testified against the defendant.

Settlement of Sandra Bland lawsuit an important step in the right direction, but no panacea for ensuring safe jail conditions

Today's news about the $1.9 million settlement of the lawsuit filed by Sandra Bland's family against the Waller County Jail and the Texas Department of Public Safety surely comes as a welcome development for many supporters and observers around the country.  As reported by Johnathan Silver in the Texas Tribune, the terms of the settlement include the following:

•  "Waller County will pay the family $1.8 million.  The Texas Department of Public Safety will pay the family $100,000."
• "To prevent future document falsifications, Waller County jail will use automated electronic sensors to ensure accurate and timely cell checks."
• "From here forward, Waller County jail will now provide an on-duty nurse or EMT for all shifts."
• "The Waller County Judge pledges to actively seek passage of state legislation providing for more funding for jail intake, booking, screening training and other jail support like telemedicine access for Texas county jails AND HE SUPPORTS HAVING ANY RESULTING LEGISLATION NAMED IN SANDRA BLAND'S HONOR!" [emphasis in original]
• "The Waller County Sheriff's Office shall provide additional jailer training (including ongoing continuing education) on booking and intake screening."

The financial settlement may strike some as too high and others as too low, but in the world of death in jail custody lawsuits, it is a very solid settlement and in the neighborhood of some other very high-profile cases with which this writer is familiar.  Of greater interest for purposes of this post, though, are the non-financial parts of the settlement.

I was pleased to see that the settlement includes efforts to address problems in the intake screening process, the need for additional staff training, concerns about medical care, and problems with falsification of records about staff rounds in the jail.  These are all steps in the right direction and can definitely help shift the culture in the jail towards one that is more responsive to the needs of inmates and to compliance with constitutional standards of care.

But some caution is also necessary:  none of these settlement terms will guarantee inmate safety, and more details and steps are necessary.

Take, for example, the use of electronic sensors to "ensure" that staff conduct their rounds in a timely fashion.  There is always a danger in over-reliance on technology.  Yes, the electronic wands can be helpful, but the technology can also mask poor performance or other operational problems in the jail.  Staff have been known to quickly dash through the cellblocks touching wands to sensors to ensure that a record exists of their rounds, but they haven't necessarily taken the time to carefully observe the inmates or engage with them--even though observation and engagement (not sensor-touching) is the objective of the rounds.  We need to ask questions about WHY records get falsified or observations aren't conducted properly.  Are there staffing shortages that limit officers' ability to leave their posts to make rounds?  Is there a culture at the jail that does not hold staff accountable when they don't follow procedures?

Also, while it is good news that Waller County will be bringing in an on-duty nurse for all shifts, there is no indication about what type of nurse it must be.  Too many jails rely on LVNs, who are not authorized to handle certain medical tasks.   A California jail recently settled a lawsuit for $8.3 million in a wrongful death case that involved private correctional health provider Corizon's improper use of an LVN to do jail intake medical assessments.

Also, the Waller County Jail has had other recently reported serious problems in the delivery of medical care with disastrous results, despite the involvement of a nurse at the Jail.

The training provisions in the Bland settlement are important, but it would be good to clarify what that training will consist of, how many hours of training will be offered, and who will conduct it.

As the settlement suggests, there will be a critical role for the Legislature on these jail safety issues next session.  The Legislature can do a great service for county jails around the state--especially small and medium-sized jails--by providing resources for improved intake procedures, staff training, and access to telemedicine.  But just as critical, the Legislature needs to ensure the availability of mental health services (including detoxification centers) in local communities so that arrested individuals with mental health issues and those who are heavily intoxicated or high on drugs can be diverted to these more appropriate settings.  Legislators also need to support the creation and training of Crisis Intervention Teams in various law enforcement departments to help de-escalate situations that could lead to violent confrontations.

Beyond all this, it is essential to improve external oversight of Texas's county jails.  The Texas Commission on Jail Standards, which regulates the jails' compliance with certain minimum standards, needs more resources to ensure its ability to conduct regular inspections of each jail and to provide jails with technical assistance.

And Texas also needs to create a form of independent oversight that allows for assessment of inmate complaints about their safety and treatment, since the Commission on Jail Standards was never designed to fulfill that function.  For example, inmate complaints about poor medical care, mental health care, brutality, and sexual assault are well outside the scope of the Commission's mandate.  Just as Texas created an Independent Ombudsman to ensure the safety of incarcerated youth in Texas in the wake of the 2007 TYC scandal, the creation of such an Ombudsman function for the state's jails would be a wise move.  In fact, rather than creating a new entity, it would be easy enough to expand the current Ombudsman's role to include oversight of adult jails.      

The bottom line is that the settlement of the Sandra Bland case is an important step in the right direction, but no one should mistake this development for a solution to safety problems in the jail.  The operational issues that led to Sandra Bland's death and to other inmates' medical problems will require ongoing scrutiny from external oversight bodies, more resources from state and local officials, and careful monitoring by jail managers.

Triplet of Austin PD court losses over police abuse may signal trend

A federal jury recently awarded $877,000 to a man who sued the Austin PD "after police in 2012 tackled him and detained him for a crime he did not commit." That makes three recent cases where the City of Austin was ordered to pay out sizable sums for alleged police abuse. The Statesman quoted local attorney Adam Loewy, who represented the family of the late Larry Jackson Jr., whose parents and widow last week received a $600,000 settlement from the city, suggesting that:

with the Hernandez case, plus one last year in which a jury found that Charles Chacon was subjected to unnecessary force by Austin police officers, “I believe the tide is finally turning.”

“In the post-Ferguson (Missouri) environment,” Loewy said, “I think jurors are much more open to the idea that police brutalize people.”

If he's right, that would signal a major shift.

For some years now, many advocates including your correspondent have considered civil courts a non-viable avenue for police reform in Texas because of qualified immunity, a culture of tort-reform among state judges, and the prosecutor-friendly 5th Circuit waiting to reduce or overturn any verdict that might be achieved at trial. It's one of the reasons Grits focuses so much on the Legislature; there's been more possibility for significant change at the capitol than via litigation on most of the issues I care about. In my experience, the Legislature can occasionally help matters; the most Grits tends to hope for from the courts is that they do not make things worse.

But these things run in cycles. And the vicissitudes of history appear to be altering the context of conversations about police abuse, both among jurors and officialdom. So far, with the exception of new reporting on police shootings, we haven't seen much legislative action on these topics. But if jury verdicts and settlements start to pile up, and the 5th Circuit makes cities actually pay them, that will heighten the incentive for legislators and locals alike to embrace reforms.

Writ Writer Resources

For my own purposes, Grits wanted to record links to several resources on writ writers and self-represented defendants I've recently run across:

• From the National Lawyers Guild and the Center for Constitutional Rights (2010): Jailhouse Lawyer's Handbook
• Columbia University Human Rights Law Review (2011): A Jailhouse Lawyer's Manual
• From the Texas Civil Rights Project and the ACLU of Texas (2011): Prisoners Civil Rights Manual
• Texas State Law Library: Introduction to Legal Research
• American Association of Law Libraries: How to research a legal problem: A guide for non-lawyers

Feel free to recommend related resources in the comments.

Organizing Inside: Prison Justice League building prisoner base for litigation, advocacy

Erica Gammill, Prison Justice League

Recently, Grits reconnected with Erica Gammill, a long-time Texas criminal-justice reformer who's doing some interesting work organizing prisoners inside Texas state prisons. She's now Director of the Prison Justice League, a membership organization whose 1,000+ members are all incarcerated Texas prisoners. That number would be pretty good for some free-world organizations; for an all-prisoner group, it's downright impressive.

A lot of the Prison Justice League's organizing work and litigation activity has centered around the Estelle Unit, where they're engaged in several lawsuits (and about which they produced this report last year on excessive force at the unit). But they have members at nearly all of Texas' 109 prison units. Grits found the whole project fascinating, so I asked Erica to come tell me, and you, a little more about the group, what they're doing, and what it's like trying to organize prisoners. You can listen to the interview here:

Or, find a transcript of our conversation below the jump.

GRITS Conference Brings Attention to Bail, Fee Reform

This weekend, your correspondent had the pleasure of attending the first-ever Getting Radical in the South Conference (GRITS – no affiliation with this blog) at the University of Texas School of Law.  The conference gathered lawyers and activists from all over the country, but predominantly the South, to discuss radical lawyering and organizing.  While the conference covered subjects ranging from immigration to policing to voting rights, criminal justice (or “criminal injustice,” as some participants preferred) emerged as the major topic of the weekend.  Particularly relevant to recent developments in Texas was a discussion on bail and fee reform.

The keynote speaker was Alec Karakatsanis, cofounder of the nonprofit Equal Justice Under the Law out of Washington, D.C.  He and his team of lawyers have been filing legal challenges across the United States to local jurisdictions’ practices of jailing people solely because they are too poor to pay bail or fees.  Equal Justice has been very successful in arguing that the Equal Protection and Due Process clauses forbid courts from jailing indigent defendants who – for no other reason than being indigent – cannot come up with the money to stay out of jail.  So far, Equal Justice has amassed wins in Alabama, Missouri, Mississippi, Louisiana and Tennessee, and has also filed lawsuits in Georgia and most recently, California.

Between Mr. Karakatsanis’s group making its way westward and through the South, the Texas Fair Defense Project’s having filed a lawsuit last week in Austin challenging the city’s practice of jailing people for being unable to pay fines and fees, and the ubiquitous use of bail schedules in Texas, it is only a matter of time before Texas’s practices are also subject to legal scrutiny.  And political scrutiny should be forthcoming as well: the Texas Judicial Council’s Criminal Justice Committee is currently working on a study on pretrial confinement in Texas, which will hopefully be released ahead of the next legislative session.  Pending litigation and new policy research may create the perfect storm for meaningful bail and fee reform in 2017.

The GRITS conference was a great success, and my only wish is that the conference had started back when I was at UT Law 2009-2012.  Major kudos go to the students and organizations that made it happen.

Grits' note (the blogger, not the conference!): Amanda Woog, the youngest of this blog's fabulous new contributors, was first introduced to Grits readers in this podcast about her research on police shootings. Grits first met Ms. Woog when she showed up as a standout policy attorney for the House Criminal Jurisprudence Committee this past session who, as near as I can tell, impressed everyone who met her. Before that, she clerked for Judge Cheryl Johnson at the Court of Criminal Appeals and was an intern at the Office of Capital Writs during law school, so now we have someone else on the blog who can talk writs! It's going to be fun having new voices in the mix. Thank you, Amanda! I couldn't be more pleased to have you writing here.

Do sweltering Texas prisons violate international human rights standards?

This morning I received a press a press release from UT Law School's Human Rights Clinic related to the Inter-American Commission on Human Rights'  announcement that it "will hold a hearing in Washington, D.C. on October 27, 2014 regarding Texas' violation of prison inmates' human rights by exposing them to dangerously hot temperatures. The IACHR is an independent organ of the Organization of American States, whose mission is to promote and protect human rights in the Western hemisphere." Find the full text of the press release below the jump:

Lyons' wrongful termination suit vs. TDCJ reinstated

Former TDCJ flak Michelle Lyons saw her wrongful termination lawsuit against the agency reinstated last week after the 5th Circuit Court of Appeals overturned a summary judgment ruling by the trial judge. Readers may recall Lyons was accused of lying on her time sheets. But, reported the Huntsville Item (Sept. 10):

The circuit court said the lower court and TDCJ did not mention evidence that could have led a jury to favor on Lyons’ side. That evidence was a statement by Lyons’ then-supervisor Larry Fitzgerald, who retired in 2003.

“I explained to Ms. Lyons that since she was an exempt employee she was not eligible for overtime,” Fitzgerald said in part of his affidavit. TDCJ said Lyons’ inaccurate timesheets led to her demotion in 2012. “Therefore, it was not necessary for her to track her hours to the minute on a day-to-day basis. I also explained to her since she was an exempt employee it was not necessary for her to work a set shift.”
Fitzgerald explained that this was because of the erratic hours public information officers worked. Rather than minute-by-minute timekeeping, Fitzgerald told Lyons she was responsible for working a minimum of 40 hours per week and to mark her records for “eight hours in the office per day.”

The circuit court said that a “reasonable jury,” along with evidence showing her co-worker also failed to follow the timesheet policy, could conclude that public information officers were an exception to the rule. The court said that should’ve been debated by a jury.

If proven true, the court also said that could be seen by a jury as the “selective application of a facially neutral policy.” In other words, if the policy was equally applicable to all employees as TDCJ claimed, why were public information officers treated differently and why was Lyons treated differently than her co-workers?

But the court also said there is a factual question as to whether the timesheet violations were “the actual reason for her demotion or a pretext, TDCJ was not entitled to summary judgment.”

On the final question, there's very little doubt Lyons' firing over time sheets was mere pretext. She was public information officer at an agency which over the years has become more insular and opaque and, at root, would prefer the public had as little information about it as possible. As far as I can tell, she was fired for doing her job. Now perhaps a jury will get to decide. Or perhaps TDCJ will settle to prevent Ms. Lyons from taking the stand and revealing where all the (metaphorical) bodies are buried.

SCOTUS: 5th Circuit too quick to take cops' word in police shooting case

The US Supreme Court this week reversed the 5th Circuit's grant of summary judgment to Bellaire, TX police Sergeant Jeffrey Cotton who shot a professional baseball player, Robert Tolan, after accusing him of stealing his own car. The high court remanded the case for further evidence gathering, criticizing the trial judge and the 5th Circuit for taking the cops' word about events without considering the plaintiff's side. See SCOTUSBlog's page on the case and coverage from the Houston Chronicle, Think Progress, Prawfsblawg and Harmless Error.

As the Chronicle reported, "Cotton was indicted on a charge of aggravated assault by a public servant by a Harris County grand jury. He was found not guilty at trial in May 2010 and continues to work as a Bellaire police officer." Tolan, for his part, now plays for the Washington Nationals.

Whether or not Tolan prevails, and there's still a long road ahead before he overcomes Cotton's qualified immunity to get the case in front of a jury, the ruling signals that the judge and the 5th Circuit were too quick to credit police accounts without investigating any specific allegations. At that, long-time 5th Circuit watchers could not be surprised.

Why private prisons don't (and shouldn't) have immunity from civil rights litigation

Attorney Jennifer Hulvat has an article at Corrections One ("Unprotectcted: Private prison personnel and civil liability," Nov. 25) explaining why private prison companies and staff do not enjoy the same qualified immunity from civil rights lawsuits as publicly owned and operated prison units.

Historically, Title 42 U.S.C. §1983 has provided a procedural mechanism for state and local prison inmates claiming violations of their civil rights to sue those acting “under color of law”. Qualified immunity, however, bars §1983 suits against certain state, local and federal officials unless the actor reasonably believes that his conduct violates a clearly established constitutional right. Certainly, claims suggesting deprivation of rights rooted in the Fourth Amendment, the Eighth Amendment and the 14th Amendment are ripe in the prison context. ...

We need only look as far as the most recent Supreme Court opinion on the matter to quickly conclude that prison guards in private prisons are, for all practical purposes, exposed and vulnerable to liability for civil rights violations. The 1997 Supreme Court case of Richardson v. McKnight established that prison guards working for a private prison company that contracted with the state could not assert the defense of qualified immunity against civil rights allegations. There, two inmates in a privatized Tennessee prison alleged that prison guards subjected them to severe physical restraints, thereby depriving them a constitutionally protected right. The Court believed that “history does not reveal a ‘firmly rooted’ tradition of immunity applicable to privately employed prison guards”. Most notably, the Court found no reason to extend this critical protection to private contracted prison guards. The key factor in the Courts decision was that the person being accused of the constitutional deprivation was not hired directly by the government, rather “a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertak[ing] that task for the profit and potentially in competition with other firms”.

Hulvat clearly believes qualified immunity should extend to government contractors including private prisons and their employees, but that's a slippery slope she's suggesting the courts head down. The Geo Group is to TDCJ as the mercenary firm Blackwater was to the US Marines. There are good reasons why Blackwater retained liability when performing its functions and you couldn't set the precedent for one sort of entity without extending it to others. The government contracts for all sorts of services with the private sector: Should rental car firms enjoy qualified immunity because the government sometimes rents cars from them? Where would it end?

In any event, Ms. Hurvat's complaint won't be satisfied anytime soon. She noted that a Supreme Court case in 2012 finding qualified immunity for an attorney hired to perform a police Internal Affairs investigation "was very careful not to overrule Richardson, finding that the employment relationship of a privately retained 'one' is quite different than the position and relationship of 'many' working for the entity hired by the government. For the time being, then, private prison guards facing civil rights allegations remain exposed and susceptible to liability."

Strip away that liability and abuses would surely rack up. Already, private facilities tend to be less accountable and more prone to abuse than publicly operated ones (though both have their problems). In part that's due to underpaid, under-trained staff, high turnover, fewer services and a tendency to cut corners to maximize their bottom line. How much worse would those problems be if private facilities weren't accountable in court for abuses? In that vein, via Texas Prison Bidness, this morning I noticed this new report (pdf) from the Detention Watch Network about alleged civil rights violations at private immigration detention facilities, including in Polk County, TX. 

 Government agencies are accountable to legislatures or other elected entities who can and do intervene - as happened at the Texas Youth Commission, for example - when serious problems arise. But private companies are only accountable to their board and shareholders. In Grits' view, SCOTUS was wise not to extend them immunity.

More litigation over heat in TX prisons now that 5th Circuit cleared way

More lawsuites vx. TDCJ related to heat-related deaths, just as summer begins to warm up. I couldn't go to the Texas Civil Rights Project (TCRP) press conference on Thursday so here's how the report from the Austin Statesman (June 13) opened:

Robert Allen Webb, a 50-year-old developmentally disabled man who suffered from a medical condition that made him susceptible to heatstroke, was supposed to be serving a short sentence in a Texas prison for drunken driving.

But in August 2011, as Texas baked in one of its worst heat waves ever, it became a death sentence inside an East Texas prison.

On Thursday, two wrongful-death lawsuits were filed in a Galveston federal court alleging that Webb and 12 other Texas convicts have died since 2007 — 10 alone in a six-week period of July and August 2011 — in un-air-conditioned prisons because of negligence of Texas prison officials.

In some prisons, lawyers said, indoor summer temperatures routinely reach 110 degrees. In one prison near Dallas, the temperature reportedly topped 149, lawyers in the case said.

Texas operates the nation’s largest prison system, with 111 lockups. But unlike other states that have air-conditioned prisons in recent years to curb health questions and lawsuits, most Texas prisons have air conditioning only in administrative and some treatment areas — not in the cell blocks.

See also coverage from the Texas Tribune. Last year the 5th Circuit Court of Appeals cleared the way for prisoners to sue in federal court over heat-related Eighth Amendment claims. One of the federal appellate judges likened conditions to sitting in an oven. Today, the weather is on the cool side for June, but things will heat up soon. If TCRP has their way, that will be true in the federal courthouse as well as inside Texas prison cells.

See a related column from Bob Ray Sanders at the Fort Worth Star-Telegram promoting the annual fan drive for indigent prisoners run by CURE, the Committee United for Rehabilitation of Errants. Good cause, give if you can.

Prof. Jennifer Laurin previews forum on prosecutorial oversight

Tomorrow afternoon at the UT law school there will be a 2-hour panel discussion on prosecutorial oversight, part of a "national conversation" promoted by the national Innocence Project and the Veritas Initiative in the wake of the Supreme Court's Connick v. Thompson decision affirming that prosecutors have "absolute immunity" for on-the-job misconduct. Assistant Professor Jennifer Laurin will be moderating the event, and yesterday I got a chance to sit down with her to discuss the issues in this Grits for Breakfast podcast/interview. (See the transcript here.)

Laurin describes Connick v. Thompson in some detail, and explains why the subject merits such a "national conversation." She then gives a rundown of the heavy hitting lineup on the dais, and discusses broadly some of the possible approaches or potential "sites" for reform that could be considered. And we discuss Laurin's own writing on Connick v. Thompson, about which she recently authored a chapter in a manual on federal civil rights litigation. She's very knowledgeable and we could easily have spoken about the subject a lot longer (the interview runs a little over 20 minutes).

The event itself will be broadcast live online on this dedicated website for those who can't attend. Here's a copy of the press release:

Prosecutorial Oversight: A national dialogue in the wake of Connick v. Thompson

Thursday, March 29, 2012
1:30 to 3:30 PM
Francis Auditorium
University of Texas School of Law – Austin, Texas

Please join us for the Texas stop of a national tour to address the issue of prosecutorial oversight.  The Supreme Court’s recent decision in Connick v. Thompson rejected civil liability for Brady violations in lieu of what it took to be effective status quo mechanisms for training, supervising, and remediating prosecutorial disclosure issues. A discussion followed by Q&A will address existing oversight mechanisms in Texas, assess their adequacy, and explore possible avenues of reform.

Speakers include:

• Betty Blackwell – Attorney, former chair of the Texas Commission for Lawyer Discipline
• Jennifer Laurin (moderator) – Assistant Professor, University of Texas School of Law
• Jim Leitner  - First Assistant District Attorney, Harris County
• Michael Morton – Freed after 25 years in prison in Texas following DNA exoneration and revelation of concealed exculpatory evidence
• Hon. Bob Perkins (Ret.) – Former judge, 331st District Court, Travis County
• Professor Robert Schuwerk – Professor, University of Houston Law Center, author of leading treatise on Texas rules of professional conduct
• John Thompson – Founder and Director of Resurrection After Exoneration and Voices of Innocence and plaintiff in Thompson v. Connick, imprisoned in Louisiana for 18 years (14 on death row), freed after revelation of concealed exculpatory evidence
• Emily West – Research Director, The Innocence Project

Federal judge bench slaps parole board over assigning sex-offender conditions without due process

The Statesman published a brief description of a case that attorney Bill Habern had notified me about, signalling a growing frustration by federal courts with the Texas Board of Pardons and Paroles over their application of Condition X to parolees not convicted of sex crimes. (For those not familiar with the parlance, Condition X assigns offenders most restrictions on sex offenders except for public registration.)

In June, an attorney who's knowledgeable on the subject predicted to Grits "that most cases will have Condition X withdrawn by transmittal to a Board panel, and not by a mass of hearings," but  that's not what's happening. Around 7,000 parolees have been assigned Condition X without having committed a sex crime, according to published estimates, but the parole board has held what are known as "Coleman hearings" to assess parole conditions for only 3 parolees so far, according to Habern, who at Grits' request described the case's signifigance in an email thusly:

Our client was placed on sex offender supervision, has no sex conviction and was given sex offender conditions without proper due process or a hearing, as were approximately 7,000 other parolees. Since May, 2011 only 3 Coleman hearings have been had, with 300 people under consideration for Coleman hearings. The board refuses to reconsider anyone on Coleman supervision unless they request relief, and the board continues those who were not subject to Coleman due process on sex supervision no matter the failure to consider them for due process. When we demanded due process for our guy the board started telling him he'd have to jump through a bunch of testing including plysmograph before they would consider giviing him Coleman due process. Our position is he is not even legally on sex offender supervision, so the board cannot enforce such conditions until due process has been afforded..  Ct. order (TRO) prevents the board from enforcing sex offender condtiions until we can have a full hearing on the issue Sept 20th.  

As we were having the hearing yesterday the client was sitting in his parole officer's office. If we lost, we anticipated he was going to be arrested for non-compliance with sex offender conditions.

I uploaded the actual court ruling (pdf) for anyone interested. The question becomes, what happens to all those without attorneys to request Coleman hearings, and will the court's dicta after the hearing on the 20th affect only this case, only the 300 who've requested hearings but haven't received them, or all 7,000 people similarly situated? If not the latter, will it take a class action suit to get it done for everybody, and if so what deep pocketed civil attorney dares to file it? (This may be a good one for public interest attorneys at ACLU, Texas Civil Rights Project, etc., to take a second look at.) The Western District judges - Sparks and Yeakel, at least - are already unhappy with the parole board over failing to follow their direction on this, having already found rampant due process violations in near-open defiance of the court. At one point Sparks called Rissie Owens "some combination ... of 'indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed'"; the only way he could have been harsher would have been to step off the bench to slap her face in court. So there's fertile ground, but it'd be a significant undertaking, requiring a skilled attorney or firm with significant resources to really do it right. That many clients in a federal class-action civil rights claim is a lot to manage, even if a case looks like a slam dunk.

Until then, one supposes, these cases will continue to be filed in federal court one by one. Surely it'd be better, if only for reasons of judicial economy, if Judge Yeakel were to nip this in the bud at the Sept. 20 hearing and order Condition X removed for all 7,000 eligible parolees until hearings can be held. Otherwise, it's pretty clear the BPP will needlessly stall as long as possible. The Board of Pardons and Paroles may not like the court's decision, but at this point they're either dragging their feet or thumbing their nose at the court (depending on which body part you'd like to choose for a metaphor). Either way, that's an untenable position. Federal judges are appointed for life, so Sparks, Yeakel, et. al., aren't going anywhere.

See related Grits posts:

• Did parole board dawdling create civil liability for Texas on sex-offender conditions?
• New parole rules require due process for sex-offender conditions
• Court: Parole board can't impose sex-offender conditions without evidentiary hearing
• Judge Sam Sparks: Parole chief Rissie Owens is "indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed"
• Federal judge: Parole board may have improperly labeled thousands as 'sex offenders'
• Federal litigation seeks individualized review of sex-offender cases by parole board