Defining an 'undue hardship': Updating last session's debtors-prison reform bill

The Texas House Criminal Jurisprudence Committee on Monday heard HB 465 (White), which is update legislation from debtors-prison reform legislation (HB351/SB1913) passed in 2017. (Attentive readers may recall that, when he laid out HB 351, state Rep. Terry Canales told the committee that the ideas in his legislation originated with a post on this blog!) Despite predictions two years ago that collections would plummet and indigent drivers wouldn't be held accountable, the opposite occurred: collections actually increased when some of the most regressive collections tactics were abandoned.

But the 2017 legislation only made a small dent in the problem. While there was an uptick in fines waived and community service granted, far more people (more than half a million) satisfied their fines through "jail credit" - i.e., they were incarcerated in lieu of payment.

Readers may also recall that, at their state conventions in June, both the Republican Party of Texas and the Texas Democratic Party included provisions in their platforms calling for an end to jailing drivers for non-payment of traffic tickets and other Class C misdemeanor debt, switching to commercial collections methods, instead.

HB 465 does not go that far. (White's HB 2754 comes much closer; more about that bill soon). Rather, HB 465 demands that judges take into account defendants' ability to pay, authorizing them to waive fines or order community service if penalties create an "undue hardship," a phrase which is defined more broadly in the bill than in the past. The changes would bump up usage of fine waivers and community service in lieu of incarceration, but leave the fundamental "pay or we jail you" structure of the system intact for most drivers. Regardless, it's a good bill making important improvements to a regressive, dysfunctional collections process.

Here's a fact sheet from the Texas Fair Defense Project and Texas Appleseed supporting the bill.

Texans incarcerated thousands of years over traffic-ticket debt

In 2018, according to Office of Court Administration data, 524,628 people satisfied Class C misdemeanor fines and fees through jail credit.

By contrast, despite legislation passed in 2017 to make it easier for judges to waive fines and provide community service options, only 53,773 people had their fines waived for indigency in 2018, and 97,260 avoided fines with partial or full credit for community service.

So more than three times as many people last year sat out their fines in jail compared to those who received indigency-based relief. But we know many more people than that struggle to pay traffic fines. Last year, the Federal Reserve estimated that 40 percent of Americans could not pay a surprise $400 bill without borrowing or going into debt.

The OCA provided no data on how long those getting "jail credit" were incarcerated. Grits thinks a reasonable estimated average may be two days. Most people will only be in jail one day, but some will be in much longer, with jail credit satisfying their fines at a statutory rate of $100/day. 

Based on an estimated 2-day average length of stay, Texans spent 2,875 bed years incarcerated for petty Class C tickets in 2018, at a cost of ~$63 million. That's a significant, hidden expense generated by the current system.

There are additional, unintended consequences to jailing hundreds of thousands of people over debt collection: Research shows that cities which rely on low-level fines as revenue sources tend to solve more serious crimes at lower rates.

Regular readers know that, in 2018, both the Republican and Democratic party platforms in Texas called for eliminating arrests for non-payment of Class C misdemeanor debt, using commercial debt collection methods instead. And an Office of Court Administration poll last year found that 2/3 of Texans oppose arresting people who can't pay court debts.

There's nothing sacred about government debt. When Texans can't pay their Visa or cable bill, those companies don't get to incarcerate them until they come up with the money, and neither should the government. Grits expects legislation to be filed soon addressing this populist (and popular) bipartisan priority. That's necessary to prevent more than a half-million Texans from going to jail next year over unpaid Class C misdemeanor debt.

Texas courts already know how to handle debt without incarceration; now the #txlege should apply those lessons to Class C misdemeanor fines

In a private conversation, a frequent #cjreform opponent recently criticized a proposal endorsed by both the Republican and Democratic Party platforms in Texas to eliminate arrests for non-payment of Class C misdemeanor debt.

"So you're just saying they shouldn't be punished?," our critic wondered, in an exasperated voice. "How is that justice? Should they face no consequence at all?"

We're going to be hearing this argument a lot in the coming months, so let's address it.

First, of course, no one is saying offenders shouldn't be punished. Overwhelmingly, most people who receive traffic tickets just pay them. And states that treat traffic infractions as non-criminal and send the debt to collections have essentially similar payment rates to us here in Texas.

So the question becomes, is it "justice" when a judge assesses debt which cannot be paid but fails to incarcerate the debtor for nonpayment?

Indeed, we need look no further on this question than to the same Texas Justices of the Peace who handle Class C traffic tickets at the county level. Those courts also handle civil claims up to $10,000.

When a defendant loses in small-claims court (it's not called that, anymore, but that's what it is), a JP typically orders monetary payment as judgment.

If the defendant cannot pay, jailing them is not allowed. Instead, plaintiffs must pursue debt collection using other methods, such as liens on property, turnover orders, sending the debt to commercial collections, etc..

We're left to wonder, why is debt to the government somehow such a big deal that it warrants incarceration of those who cannot pay? Clearly, non-carceral methods are sufficient for these same judges to declare "justice" done if the beneficiary of court-declared debt is a person, not the government.

The government has created a double standard to benefit itself. Ethical qualms about the private sector excessively squeezing the poor are routinely ignored in the public sector when it comes to criminal-justice debt, particularly Class C misdemeanor traffic fines.

Locals enjoy wide leeway on these questions and cities' reliance on Class-C-fine debt for revenue varies widely. Though apples-to-apples data is hard to come by, an item in Forbes a couple of years ago calculated 2013 per-capita ticket revenue for US cities with more than 250,000 population: In El Paso, the city received $6.16 per capita from these sources in 2013; in Houston the per-capita figure was $17.89; Dallas, $32.58; Plano, by contrast, received $43.36 per capita. That's all over the map.

Since municipalities which rely more heavily on ticket revenue have lower clearance rates for more serious crimes, no one should aspire to match those higher per-capita totals.

The use of incarceration to punish the poor for non-payment of traffic fines appears flat-out ironic when one considers that wealthier people are more likely to commit traffic offenses. So the class of folks facing the harshest punishments for Class C misdemeanors is also the least culpable. In a nation where 40 percent of the population, according to the Federal Reserve, cannot afford a surprise $400 bill without going into debt or selling something, that makes little sense.

There's nothing sacrosanct about debt to the government, certainly from the point of view of the debtor. From the perspective of the stone, it doesn't matter who wants to squeeze blood from it; none is forthcoming.

Texans think justice system skewed against poor, support end to debtors-prison practices

Stagnant wages and empathy for economic struggles, combined with questions of pragmatism, have caused debtors-prison reform to emerge as a sleeper-hit with the public, judging from recent public-opinion assessments.

Yesterday, Grits cited a new poll which found that "81 percent of Texas registered voters believe the wealthy enjoy substantially better outcomes in the criminal justice than poor and working-class people." That's an overwhelming majority who believe that poor folks aren't treated fairly in the system.

These findings corroborate sentiments documented in a recent statewide survey conducted by the Texas Office of Court Administration:

• Only one third (33%) agree that the average person can afford court costs and filing fees.
• Slightly less than 3 in 10 (29%) agree that Texas courts treat people alike regardless of socio-economic status.
• Two thirds (66%) disapprove of jailing people who owe court costs and filing fees when they cannot afford to pay.

So Texans think average people can't pay court costs, poor people are discriminated against, and the government should stop jailing people who can't pay debt to municipal courts.

Moreover, skewing government priorities toward debt collection has negative implications for public safety. For example, we know that cities that rely heavily on ticket revenue tend to have lower clearance rates on more serious crimes.

It's easy to see why the public thinks justice debt is such a big problem for low-income individuals. Earlier this year, the Federal Reserve estimated that 40 percent of Americans could not pay a surprise $400 bill without borrowing or going into debt. It's easy for municipal-court debt to exceed that amount. And many people owe more than that in delinquent Driver-Responsibility surcharges.

That's why, earlier this year, both Texas state political parties added platform planks advocating to stop jailing people for unpaid traffic ticket debt, instead sending unpaid bills to commercial collections. Roughly half-a-million people sat out traffic ticket debt in jail last year statewide, so that change would help out a lot of folks.

Clearly from these survey data, most Texans believe that jailing people for muni-court debt unfairly harms the poor and needs to stop. We'll find out over the next six months whether the Legislature will embrace this emerging, surprisingly popular view.

Texas #debtorsprison legislation overachieving, even boosted revenue

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

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

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

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

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

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

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

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

Cowtown bucks Great Texas Warrant Roundup

Fort Worth may be the first Texas city to pull out of the so-called "Great Texas Warrant Roundup," according to a report in the Fort Worth Star-Telegram:

now the City of Fort Worth Municipal Court has decided it wants to save you from an embarrassing arrest by bucking the aggressive roundup approach for a more neighborly discourse that it also believes will prove to be more productive. 

"We're calling it Warrant Forgiveness Month,” Municipal Court Director Theresa Ewing said. 

No, it's not wiping the slate for those with Class C warrants, however this new "Court in the Community" initiative — a mobile courthouse coming to a part of town near you — does guarantee an arrest-free encounter while meeting with a municipal judge to arrange a payment plan (or even swapping fines for community service) to make that burdensome warrant a thing of the past. 

The program began to take shape after last year’s Convoy of Hope event at Southwest High School. The Municipal Court was invited to set up a mobile unit, and the people came. Ewing said 87 people were able to rid themselves of warrants by working out a payment plan.

That's what it looks like when government seeks to enforce these petty laws for the public good instead of mere rent seeking motivations. Nobody's getting off the hook, but neither is the focus on a "roundup," as though poor people with unpaid traffic tickets were so many bovine to be punched by armed-and-badged cowboys participating in a human cattle drive.

If this were happening Austin or even Dallas, one might write it off to Democratic officials setting more liberal policies. But that's not what's going on here. "Cowtown" is Trump country, and them dropping the "warrant roundup" may inspire other Texas jurisdictions to follow their lead.

Grits wishes every Texas legislator and staffer, much less every JP, muni court judge and city council person, would read these stories from the Fort Worth Star-Telegram about why Fort Worth, a GOP bastion, stopped issuing arrest warrants for most unpaid Class C misdemeanor violations:

• Fort Worth bucks Great Warrant Roundup for kinder approach
• Warrants, jail, and job loss: How unpaid tickets can unravel your life

That second story in particular is a must-read. Add in the Driver Responsibility surcharge on top of the warrants described, and unpaid traffic tickets can become an insurmountable mess.

There has been some legislative push to get at these issues, like SB 1913 from 2017 which eliminated some of the more egregious practices for squeezing blood from stones. But firmer measures like House Corrections Committee Chairman James White's bill to eliminate arrests for traffic ticket debt outright didn't make it through.

Fort Worth's example shows those stronger approaches are workable and should be revisited. We haven't jailed poor people for private debt in America for more than 180 years, and in the 21st century, there's no good excuse for jailing them for traffic-ticket debt, either.

Emily Gerrick: Chipping Away at Debtors Prison Policies

On the latest Reasonably Suspicious podcast, I interviewed Emily Gerrick, a staff attorney with the Texas Fair Defense Project specializing in policies surrounding people jailed for traffic-ticket debt. We only used a 5-minute segment for the podcast, so here's our full conversation for those interested, ranging from recently passed reform bills, jailing drivers for failure to pay tickets, the ignominious Driver Responsibility surcharge, and what local municipal court judges and Justices of the Peace can do to minimize debtors prison practices under current law.

Listen to the full interview here or read a transcript below the jump:


SEE ALSO: A report from the Fair Defense Project and Texas Appleseed on debtors prison issues, a summary of reform legislation from the Texas Municipal Courts Education Center, and comments about Emily's interview from Edward Spillane, presiding judge over the College Station municipal courts. RELATED: Check out Grits' call for a "Jubilee" on criminal-justice debt, an analysis of opposition to this year's reform legislation, and an account of the dramatic reversal that allowed the bill to pass in the Texas House.

More on limiting debtors prisons practices

The Texas Municipal Courts Education Center has issued a summary of new debtors-prison reform legislation (HB 351/SB 1923) as well as guidance related to various laws governing expunction of juvenile records. Check them out here.

RELATED: In the latest Reasonably Suspicious podcast (beginning at the 12:08 mark), I interviewed the Texas Fair Defense Project's Emily Gerrick on what local judges can do beyond that new law to limit debtors-prison practices in Texas. I asked Edward Spillane, Presiding Judge of municipal courts in College Station, for his thoughts on her suggestions, and here's how he replied:

Emily made a number of excellent points. I'm excited that the new legislation will encourage a broader use of the waiver and community service processes judges have. I wish the surcharge program had gone away but now judges can end more easily the financial burdens defendants face from fines, fees and drivers license holds. I would include particularly Indigent defendants but also those defendants struggling with other hardships such as mental illness or a loss of a loved one, a family member who is sick or any other strain making it hard for defendants to carry out their sentence. The new legislation also mandates that courts are a safe haven for those under warrant and who come to court. That is a big step along with the various new procedures courts must perform before issuing failure to appear or capias pro fine warrants. Progress may seem slow but these legislative changes will make all our courts more just and fair places for citizens.

In a few days, I'll post the full interview with Ms. Gerrick, which was informative and educational on several levels.

Blessed are the Poor: Examining opposition to debtors-prison legislation

Texas State Sen. Paul Bettencourt was quoted by the Associated Press (June 11) criticizing debtors-prison legislation (SB 1913) which he and five others voted against in the senate. He:

said that it did not adequately consider “personal responsibility” and that it provided too much leeway for judges to waive fines. 

“Current law already allows a court to work with indigent defendants who are truly unable to pay court imposed fines,” said Bettencourt, a Houston Republican.

Let's flesh this criticism out. Here's what the bill does that Bettencourt is criticizing:

Under current law, if a defendant is indigent and unable to pay a Class C misdemeanor fine, the judge cannot waive the fine or authorize community service at sentencing. Instead, insensibly, they must order the indigent defendant - whom everyone in the room knows cannot afford it - to pay the full fine, anyway. This judicial fiction drags the process out for weeks or months while everyone waits for the inevitable default.

Then, at that point, if the defendant comes back into court, the judge may waive fines and/or order community service. But many defendants are afraid to return to court for fear of being jailed. Often, warrants are issued instead and the defendant doesn't come back to court until the next warrant roundup or when they're pulled over at a traffic stop. The Office of Court Administration's David Slayton told the AP, “Our belief is that people don’t go to court because they think they’ll automatically get jail time if they can’t pay.”

So when Sen. Bettencourt says, "Current law already allows a court to work with indigent defendants," he's leaving something out: The law actually forbids judges from working with defendants at sentencing, insisting they must impose fines even when the debtor cannot pay. The extra leeway he deplores giving judges would simply let them waive fines and impose community service at sentencing instead of waiting for an all-but inevitable default. The former Houston Controller's Harris County Tax Assessor's goal appears to be to drag the process out so the state can bleed every last dime out of indigent defendants before granting them constitutionally mandated relief. That's cruel and pointless.

Once Class C defendants default, it's true, the court is authorized to "work with" defendants down the line if they do not pay up. But Bettencourt's preferred status-quo approach needlessly extends by weeks or months a process that should take a single hearing. Moreover, it results in many thousands of arrest warrants for indigent defendants who default on a payment plan, and is an affront to common sense and judicial economy. The governor should sign this important bill.

MORE: See an op ed from College Station municipal judge Edward Spillane and former District Judge John Delaney in support of debtor-prison reform legislation. Here's a notable excerpt:

In Texas, fewer than 2 percent of all cases in municipal and justice courts are currently resolved with community service. One in every eight cases is resolved at least partly with jail credit. It is better for communities if people to have more access to community service and avoid going to jail just because they cannot afford to pay a ticket. 

SB 1913 will also ensure that in circumstances where it’s appropriate, judges no longer should wait for a defendant to default on debt before considering whether to waive some or all of what is owed. 

Texas has a well-earned reputation for being tough on crime — but that doesn’t mean we should be putting people in jail because they simply don’t have the money to pay their court bill. We need to be tough and fair. SB 1913 doesn’t mean giving anyone a hand out; it means tailoring sentences and allowing people who can’t pay their bills to work it off in another way. 

SB 1913 will also save Texas cities and counties money. When someone is put in jail for nonpayment of a fine or fee, we all end up footing the bill. This legislation will make it less likely that people go to jail for failing to pay and more likely that they will comply with their sentences. If judges can work with people on plans that make sense for their individual circumstances, they won’t end up in jail — and taxpayers won’t need to be charged for their unnecessary jail costs.

SB 1913 will also decrease the amount of time and energy that peace officers spend tracking down people for unpaid traffic tickets by reducing the number of warrants for unpaid tickets. Currently, 95 percent of the warrants issued in Texas come from fine-only cases, most of which stem from traffic tickets.

NUTHER UPDATE (6/15): This legislation was signed today!! 

Debtors-prison policies decried, DPS cuts license center hours, and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused on preparing for a much-need break next week.

SCOTUS to consider warrants for cell-phone location data
The US Supreme Court will finally consider the constitutionality of accessing cell-phone location data from service providers without a Fourth Amendment search warrant. See a press release from the ACLU, a report from Ars Technica, NY Times coverage, and commentary from Mother Jones. This makes me wish Texas had succeeded in enacting a statutory warrant requirement - an effort with which your correspondent was involved for several years. Doing so would bolster the case for the courts requiring a warrant and provide belt-and-suspenders protection if SCOTUS rules the wrong way.

Budget cuts shorten DPS driver license center hours, but border security fully funded
Border security funding for DPS remained at pre-Trump levels in Texas' new state budget, despite the President's commitment to having the feds step up on border security. In the meantime, though, legislators cut DPS' budget resulting in shortening hours at state drivers license centers. Legislators say they didn't know that would be the result of the cuts, but it's hard to see how anyone believed that cutting the DPS budget while making border security spending sacrosanct could possibly result in anything else but reduced services. MORE: Following a predictable uproar, the governor ordered DPS to reinstate the old hours. Of course, he' can't reinstate the money to pay for it, which was cut in the budget he just signed, so DPS will have to cut services in other areas.

Discussing future dangerousness
A New York Times feature last week featured a discussion of Texas' Duane Buck case and the notion of proving "future dangerousness." The article brought to mind an old Texas Defender Service report from 2004 which found most predictions of future dangerousness by then-commonly used experts turned out to be demonstrably wrong. See also Judge Elsa Alcala's dissent from the Buck case, which was received more favorably by justices on SCOTUS than by her colleagues on the Court of Criminal Appeals. FWIW, Texas executions are down, the Dallas News reported recently, though Grits would expect them to rise again by the end of the year. The main reasons for the decline were a new 2015 law requiring prosecutors to give notice to the defense when they seek to have execution dates set, and Texas' new junk science writ, which has resulted in consideration of additional issues in several cases. Over time, though, most of those cases will end up with execution dates. Executions are slowing, but not by as much as last year's numbers would indicate.

What a screwup
Never convicted, he still spent 35 years locked up in TDCJ: Jerry Hartfield was released this week.

Documenting Texas forensic reforms
Nicole Casarez and Sandra Guerra Thompson have a new academic paper out posted on SSRN last month discussing Texas forensic reforms. Not all of those efforts have worked as well as one might like, but Texas has done more than most states on this front.

Debtors prison policies decried
See testimony from Texas A&M law prof Neil Sobol to the US Commission on Civil Rights related to debtors prison practices, and a pair of academic articles he wrote suggesting consumer credit protections be applied to nonpayment by criminal defendants. This year, the Texas Legislature passed important reforms to limit arrests for criminal-justice debt. See coverage from the San Francisco Chronicle. Then go here to ask Gov. Abbott to sign HB 351 limiting debtors-prison practices.

House tackling debtors prison issues in 85th Lege

Poor people with municipal court debt may find relief from the 85th Texas Legislature. Not only is Rep. James White promoting much-touted legislation that would end the practice of jailing people for unpaid fines (Chuy Hinojosa filed a companion bill in the senate), judges may gain new authority to order community service or even waive fines when an indigent driver simply can't afford them.

HB 351 by Canales - a bill which originated with a Grits for Breakfast blog post, according to the author's presentation to the House Criminal Jurisprudence Committee - was approved  by the committee unanimously and referred to the Calendars Committee to be scheduled for a floor vote. 

Grits loves this bill, which would eliminate the requirement that judges wait until a defendant has defaulted on payments before declaring them indigent. Instead, judges could order community service or even waive fees and fines at the time of sentencing, rather than setting an unrealistic requirement and then waiting for them to fail. That makes a lot more sense.

It's a sign of significant support that it was heard and voted out of committee so early, and stands a great chance of making it over to the senate, perhaps even becoming law. See earlier Grits coverage.

UPDATE (3/22): This bill passed the House on second reading today with minor amendments. The main change was to tell judges to put in a time limit on how long defendants have to complete their community service. Exciting that this bill has gotten so far, so early. NUTHER UPDATE (3/23) The bill passed the House with no third reading amendments. One chamber down!

Jailed for Debt: The (Last?) Great Texas Warrant Roundup

If Rep. James White's HB 1125 - which forbids municipal courts and Justices of the Peace from issuing arrest warrants for fine-only offenses - were to become law, this annual foolishness would end:

Jailing defendants for Class C misdemeanor fines is about revenue generation, not public safety. E.g., here's a recent story of a woman facing jail time for unpaid library fines in Victoria County. As Harris County DA Kim Ogg said this week in another context, "It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time. ... These secure beds and expensive resources should be prioritized for the truly dangerous offenders and 'flight risks' who need to be separated from the community."

See a primer on debtors prison practices from the Marshall Project.

Bill bows to pragmatism, overburdened muni, JP courts to help indigent

One of the first bills up in the Texas House Criminal Jurisprudence Committee this year, HB 351 by Rep. Terry Canales, would eliminate certain "Debtors Prison" practices in Texas municipal and Justice of the Peace courts related to indigence and Class C misdemeanors. (HB 50 by Corrections Committee Chairman James White is an identical bill.) The bill is on the agenda for Monday's CrimJur hearing.

In particular, HB 351 would eliminate the requirement that judges wait until a defendant has defaulted on payments before declaring them indigent, making them eligible for community service or to have their fees waived at the time of sentencing instead of waiting for them to fail.

As it happens, the most detailed explication of these problems comes from a Grits for Breakfast guest post by Ted Wood, formerly of the Office of Court Administration and now at the Harris County Public Defender Office. Read it for more background.

To Grits, this is a question of values. What does the court want? What is its purpose? Maximizing income, or justice? HB 351 reverses the priorities expressed in the current law, untying judges' hands and allowing them to dispense with cases more efficiently and responsibly.

If the defendant is indigent at the time of sentencing and there's no reasonable expectation they'll be able to pay, what's the point of fining them anyway and only accommodating their indigence when they default? At that point, a warrant is issued. So all of a sudden, someone the court knew couldn't pay when they were sentenced may be jailed for nonpayment if they don't come back before the judge to set up an arrangement that logic and common sense would dictate should have been done in the first place.

Basically current Texas law is designed to squeeze as much money as possible from indigent people before affording them the accommodation (via waiving fines or letting defendants work them off through community service) that the constitution and practicality require.

HB 351 isn't a major bill, but it's a really good one. Hope it passes.

Community service in Austin muni court no sweet deal

Payment counter at Austin municipal court

Grits was at the Austin municipal court today with someone who'd allowed a warrant to be issued for a traffic ticket when she couldn't pay. I'd convinced her that, as she was in fact demonstrably indigent, she could get the warrant withdrawn by agreeing to perform community service. That turned out to be true.

Working from a preset formula with no inquiry as to her individual circumstances, the judge demanded 37.5 hours community service for a $460 fine - nearly a full work week for a single traffic ticket. That's about $12.26 of the fine waived per hour worked. Given that the estimated value of volunteer time for nonprofits is nearly double that (vis a vis how much they can estimate its value as an in-kind contribution), plus the fact that indigent people tend to have transportation issues and family obligations that might make a full week of community service onerous, that ratio seemed low to me. I bet the low rate contributes to people not completing community service and having their warrants reissued.

For more background and context on the vagaries of community service at muni court, see ACLUTX's Know Your Rights brief on Traffic Tickets and other Class C misdemeanors in Texas.

Municipal court revenue stayed high though traffic tickets, warrants, plummeted

Grits has remarked in the past that the number of traffic tickets given by Texas law enforcement has precipitously dropped in recent years. Nobody knows for sure the reasons for these reductions in tickets and warrants, though the Austin Statesman has published the most thorough exploration of the topic. But I should have also considered that the number of arrest warrants for Class C misdmeanors has concomitantly declined. A check of Office of Court Administration data this morning confirmed that hunch.

In FY 2015, municipal courts issued 1.738 million arrest warrants for Class C misdemeanors, roughly the same as FY 20142 (1.731 million) and a few more than the 1.667 million in 2013. But check out the totals for the years before that:

2012: 1.871 million
2011: 2.870 million
2010: 2.754 million
2009: 2.708 million
2008: 2.534 million
2007: 2.375 million
2006: 2.046 million
2005: 2.290 million
2004: 2.100 million
Source.

However, another bit of datum I noticed was counterintuitive: Revenues from municipal courts did NOT decline as rapidly as the number of warrants issued. The number of Class C arrest warrants dropped 42 percent from 2011 to 2013, for example, rising slightly thereafter. But revenue from municipal courts only dropped 3.1 percent from 2011 to 2013. Even by 2015, municipal court revenue had only dropped 7 percent, though the reductions in ticketing had been in place for several years.

One could hypothesize a number of explanations for that outcome, but it's hard to be sure from the information in the above sources. Maybe it means more money was extracted per arrest warrant even as the total warrants declined. Maybe it means the reduction in traffic tickets and warrants somehow caused more defendants to successfully complete their payment terms. Hard to tell from the information available, even if a cynic's suspicions might be raised. So make of that anomaly what you will.

One thing this does show us is that limiting municipal judges' ability to issue arrest warrants or empowering them to waive fees instead of issue warrants won't necessarily result in a big revenue hit. When arrest warrant totals declined over the last few years by steep margins, the resulting revenue drop empirically was (to me) surprisingly small.

Letting judges waive fines up front for indigent defendants makes sense

Grits was happy to see Rep. James White's HB 50, making a simple but needed change in Texas statutes surrounding indigency and payment of fines. Looking at the bill language, The East Texas Republican would allow JPs and municipal court judges to waive fines or substitute community service before defendants default  and have warrants issued, instead of afterward. Rep. Terry Canales, a Democrat, filed an identical bill styled HB 351.

This guest post from Ted Wood gives a good explication of the current state of the law surrounding these questions and the need for reform.

Debtors prisons and bail reform: TX Judicial Council taking up heady issues

The Texas Judicial Council this morning approved changes to court collections programs aimed at reducing incarceration of low-income Texans due to nonpayment of fines, but not without a fair amount of controversy and substantial changes to the original version of the rules. Buzzfeed published a great story earlier this week describing the backlash of the bureaucrats in response to them.

Texas Supreme Court Chief Justice Nathan Hecht declared that the rules were conceived in response to the USDOJ report on Ferguson, MO last fall. The national Conference of Chief Justices and Conference of State Court Administrators formed national task force on the topic, which includes Justice Hecht. The conservative American Legislative Exchange Council, he approvingly noted, recently adopted a resolution encouraging reform in these areas. And he found it remarkable that support for the changes came from ideologically diverse groups from the ACLU and the Austin City Council to the Texas Public Policy Foundation, conservative state Sen. Don Huffines, and Texas Association of Business CEO Bill Hammond (who just announced he'd retire at the end of the year), all of whom favor reducing the burden from fines and fees on indigent defendants.

Here are the comments on the rules and here is a document articulating how the Office Of Court Administration changed them in response. Grits has not closely enough vetted the changes to judge exactly how watered down the final rules are compared to the original version. (I emailed our friends at the Texas Fair Defense Project for an assessment and will update this post when I hear back.) But judging from the continued pushback, it appears they've retained some teeth. The chief justice pushed through the changes despite naysayers in the peanut gallery, not to mention a few "no" votes on the council who wanted to re-publish the amended rules. They take effect January 1st, 2017, though some courts have pledged to adopt them as soon as Sept. 1st in order to help the OCA evaluate how they work in the field.

Related: From Texas Monthly, "Texas has a debtors prison problem." Good article, which mentions a related analysis from Houston of which Grits was unaware:

In May, a committee organized by Mayor Sylvester Turner released a damning report that found that the city uses its municipal court “as a profit center.” Of the court’s 169,000 convictions in 2014, only 2,800 were given the option to pay their fines through community service, and only six cases saw their fines waived. As the report notes, nearly 25 percent of Houston’s population is below the poverty line, and they estimated that “at least 30,000 people” should have been given the option of community service. “Attempting to finance the city budget on the backs of the poor criminalizes poverty and destabilizes lives, ultimately doing more harm than good,” the report found.

Pretrial/bail recommendations coming
The Judicial Council also heard from its Criminal Justice Committee which will make recommendations in October related to the bial system. Twenty five years ago, opined the chair, 32 percent of jail population were presumed-innocent people being held pretrial. Today that number is 75 percent, he said. According to the Texas Commission on Jail Standards, the average cost per day to house these inmates is $60.12. At that rate, it costs more than  $1 billion per year for pretrial incarceration, or around $2.5 million per day. He called the situation a "perfect storm ready for change."

Researchers from A&M are doing a report on Tarrant and Travis Counties, he said, and their findings so far corroborate the idea that far fewer people could be jailed pretrial without harming public safety..

In October, the committee will release recommendations suggesting that the Legislature require misdemeanor defendants to be assessed with valid risk assessment instrument prior to appearing before a magistrate. There should be a presumption through statute for pretrial release on personal bond, leaving judges with discretion to decide the evidence before them rebuts that presumption. They hope the new system would allow release of "high numbers of people who have little risk of reoffending and little risk of flight." The Lege should pony up to fund supervision for pretrial defendants and magistrate training, he opined. The Court of Criminal Appeals would create rules to implement these processes.

Related: From the Houston Chronicle, "Bail system is unjust and undermines public safety."

Judicial Council Lege agenda
The council reviewed areas where they intend to make legislative recommendations next year, though nothing has yet been finalized. Here's the list of resolutions they're considering.

Civil suit may force Reyna recusal on Twin Peaks, and other stories

Here are a few odds and ends which merit Grits readers' attention:

• A proposed resolution this Thursday at the Austin City Council directs city staff to draft regulations for municipal court judges significantly limiting when people may be arrested for nonpayment of Class C fines.
• Whether Dallas can purchase the shuttered Dawson State Jail depends on the price.
• McLennan DA Abel Reyna may have to recuse himself from prosecuting the Twin Peaks biker cases because of a civil suit against him. Normally prosecutors have absolute immunity and can't be sued, but Reyna likely opened himself up by directing the police investigation on the ground and usurping the officers' role. 
• The Christian Science Monitor has a piece on the Laura and John Arnold Foundation's risk assessment model, for which Grits harbors high hopes. Related: From USA Today, "Justice system too costly for the unconvicted." Also: from the Houston Press, "If Mom doesn't pick up her phone, you might end up stuck in jail."
• The chairman-elect of the Texas Association of Business had a column in the El Paso Times urging the Lege to raise the age of adult criminal culpability in Texas from 17-18.
• Amanda Woog's Texas Justice Initiative data project continues to receive attention. See a lengthy Huntsville Item story on the topic.
• For the first time, proposals for criminal justice reform made it into both national party platforms, noted the Brennan Center.
• Out of New Mexico, read what happens when a long-time District Attorney decides to prosecute police officers over bad shootings.
• How traffic tickets can destroy indigent people's lives. See also this essay from the Boston Review on the history of debtors prisons in American jurisprudence.
• SCOTUS last term continued the decades-long trend toward gutting the Fourth Amendment like a fish.
• The jury trial is dead. You're shocked, I know.
• Your correspondent last week made some LED-lettering signs for our friends at the Austin Justice Coalition to use at protests and events. I thought they turned out pretty well:

 

Reform on bail and muni fines would be big boon for H-Town indigents

Two different stories out of Houston portray folks chipping away at unnecessary local jail detention from different angles.

Bail litigation adds oomph to reform push
First, see Lise Olsen's story, "Lawsuit adds pregnant mom who was jailed five days after traffic stop: Harris County pretrial detention practices challenged as unlawful," Houston Chronicle, May 24. She runs through the named plaintiffs in  potentially important impact litigation "filed last Thursday by a Washington D.C. group called Equal Justice Under Law, which has been challenging what it calls money bail practices in federal court cases filed all across the United States. Other jurisdictions it has challenged include Ferguson, Mo. and San Francisco, Ca." (See earlier Chronicle coverage.)  Reported Olsen:

The lawsuit names Harris County Sheriff Ron Hickman, who oversees the jail, and the five county hearing officers that generally review such cases and set bond. On any given day, more than 70 percent of those jailed in Harris County are pretrial defendants who have been accused but not yet convicted of a crime, though typically only about 500 at any one time are jailed for minor misdemeanor offenses like petty theft or trespassing.

U.S. Department of Justice attorneys have been monitoring conditions in Harris County jail since 2008. An investigation by the Houston Chronicle found that 55 pretrial detainees died in Harris County custody from 2009-2015, including offenders jailed for misdemeanor crimes like trespassing. Last month, another man  detained because he could not post bail after allegedly stealing a guitar - a misdemeanor - was beaten to death by two inmates jailed on felony charges.

In part because of federal pressure, county officials have been working on reforms - announcing this year that they had obtained a grant to create a diversion court, revamp pretrial reviews and attempt to urge judges to increase release options for non-violent offenders. But advocates like Sen. Rodney Ellis of Houston say those plans left the flawed bond hearings in place - opening the door for the federal civil rights challenge that he supports.

The civil rights case remains pending in federal court - where Equal Justice Under Law attorneys are seeking reforms in lieu of any kind of monetary compensation for all pretrial defendants jailed in Harris County on misdemeanor offenses.

There was a time 10-15 years ago when the prospects for such litigation would have been much dimmer in the 5th Circuit, despite a similar fact pattern existing for a long time. That's a big reason why most of the 21st century reform movement in Texas has focused on legislative solutions. But shifts on the court itself, in the controlling jurisprudence, and, more generally, in the national conversation over justice reform, have opened up new windows of possibility for successful federal civil rights litigation. Grits is excited about the prospects for this one.

In a separate, related story, the Chronicle's Brian Rogers reported that, in response to examples like this new plaintiff, "On Tuesday, Harris County officials took an important step in attempting to address the issue, by announcing a new screening process to help judges determine which suspects awaiting trial can be freed without bail." (Ed. note: before the top of her head justifiably blows off, let it be said former Pretrial Services director Carol Oeller tried to get them to do this for years!)

Proponents of personal recognizance bonds have been stymied in the past by a reluctance on the part of Harris County judges to let suspects out of jail without bail. The conventional wisdom has been that suspects who do not have a financial stake in returning to court will abscond.

On Tuesday, though, county officials touted a new diagnostic tool as a way to move past a decades-old culture that has required every defendant in Houston to put up money or collateral to ensure they would return to court to resolve their cases.

"Obviously, dangerous people need to stay locked up," state District Judge Susan Brown said at a news conference. "For others, the most effective and efficient course of action may be to release them before trial - with conditions such as electronic monitoring or supervision within their community."

Rogers' analysis shows why I'm less apt to reject all uses of risk assessments. Without them, nobody gets a PR bond! Rogers goes on to give a little more information on the risk-assessment instrument they'll be using in Houston, developed by the indigenous Arnold Foundation:

Tuesday's announcement was made by a county committee that has long worked toward reform, the Criminal Justice Coordinating Council. Earlier this year, the committee spearheaded an effort to diagnose and solve problems in the system with a grant from the MacArthur Foundation.

The diagnostic test announced Tuesday was developed by the Houston-based Laura and John Arnold Foundation. It was described as a neutral-based data tool that would assist judges in gauging the risk that a defendant poses to the community.

Foundation representatives were on hand to explain that defendants do not have to be interviewed and given a subjective assessment. Instead, information about them that is readily available in court documents will be weighed by an algorithm to put each person on a continuum of risk. That assessment will be provided to judges who determine whether a defendant can be released without bail.

The nine factors that are considered include age, prior convictions - including misdemeanors, felonies and information about whether the offenses were violent - and whether they appeared for court in other cases. The assessment does not consider race, gender, past drug use, national origin or income.

Matt Alsdorf, vice president of criminal justice at the Arnold Foundation, said the diagnostic tool was developed using more than 1.5 million cases across the country.

"Our research team figured out the factors that are most predictive of defendants' likelihood of missing court or being re-arrested, and in particular being re-arrested for a violent crime," he said. "There's actually a fairly limited set of factors that are highly predictive of those outcomes."

The tool, which backers said has seen success in cities like Chicago and in the state of Kentucky, is being provided with training to the county for free.

Alsdorf said the assessment will provide judges with two risk scores: one on whether defendants will return to court and another on whether they will commit another offense.

With that information, a judge can decide if a suspect should be freed without bail, offered a bail outlined in the county's posted bond schedule or held without bail.

Screening suspects to figure out, statistically, who can be released on a personal recognizance bond, sometimes called "free bail," is expected to lower jail populations, which represent a major county expense.

But officials said it may take weeks or months to train personnel and launch the new system

Not only is this good news for Harris County, it also bodes well for Senate Criminal Justice Committee Chairman John Whitmire's pledged push to enact bail reform during the 85th Texas Legislature. Litigation can help achieve reform not just by getting courts to order it, but it can also spur action to either preempt or react to the courts, as witnessed with the implementation of this new screening tool. Litigation helps prime the institutional players to steel themselves for possible change, giving them a common enemy and thus a psychological motivation for solidarity. After all, every local official has an interest in them calling the shots over their respective areas of turf instead of some federal judge. So next session will be an excellent moment to show up proposing solutions, both for the chairman and for advocates hoping to effect bail reform statewide.

Houston muni courts almost never waive debt for indigence
Next, let's turn to municipal courts and debtors prison issues. Check out "Get a ticket while being poor in Houston? Here's how you might end up in jail," Michael Barajas, Houston Press, May 24. Explained Barajas:

Under Texas law, if you fail to pay, miss your court date and get arrested on an outstanding municipal court warrant for that no-insurance ticket you couldn’t afford to quickly pay, a municipal court judge (or, if you’re in the county’s jurisdiction, the local justice of the peace) is supposed to hold a hearing to determine why you didn’t pay. If the judge finds that you’re too poor and can’t afford the fines against you, you’re supposed to be given some options, like a reduced fine or community service, to pull you out of the red.

That rarely happens in Houston, according to a report by Mayor Sylvester Turner’s transition team tasked with studying the city’s criminal justice policies. According to that report, of the 168,948 Houston municipal court convictions in 2014, community service was offered in lieu of fines in only 2,759 cases. In only six cases did a judge deem someone poor enough to justify reducing or partially waiving fines. That means that while nearly a quarter of Houstonians live below the poverty line, the alternatives for low-income people struggling to pay tickets are used in fewer than 2 percent of cases before Houston’s municipal court judges. The mayor’s transition team report calls Houston’s Municipal Courts Department a “profit center” designed to rake in as much in fines and fees as possible, disproportionately punishing the city’s poor in the process.

Despite reforms her department has implemented in recent years, Presiding Judge Barbara Hartle says a number of factors can lead to someone’s arrest over simple municipal court fines, from overwhelmed judges and court staff to defendants who aren’t forthcoming to the court about the problems they have paying their fines and instead skip their court dates. Plus, she says, it’s not always up to the court who lands in jail for fine-only offenses. Hartle says she’s explicitly asked that Houston police officers stop arresting and jailing people with only class C warrants and instead bring them to an on-call judge. Hartle says that both state and local politicians have for far too long looked to municipal courts as revenue-generators — Hartle’s court, the largest in the state, sends millions of dollars to both the state of Texas and Houston’s general fund every year.

Those interested can see the Mayoral crimjust transition team's full report. (Full disclosure: The document was produced by a committee chaired by Grits contributing writer Prof. Sandra Guerra Thompson.)

Interestingly, Barajas offered this background on the Texan origins of the relevant federal court precedent:

By the late 1960s, Preston Tate had picked up $425 in fines for rolling through stop signs, running red lights and driving without a license on the streets of Houston. Paying off his debt wasn’t an option, not with a wife and two kids to feed off the measly $290 a month he earned, so a judge ordered Tate to serve 85 days at the local prison farm instead.

When Tate’s case reached the U.S. Supreme Court, his lawyers argued that jailing him violated his Fourteenth Amendment right to equal protection under the law, since a wealthy man would have easily avoided jail. The high court justices unanimously agreed, saying defendants must be offered some sort of alternative to jail if they truly can’t pay off the punishment on a fine-only offense.

The same year Tate’s landmark case was decided, his home state passed reforms allowing judges to offer payment plans for people who can’t afford to quickly pay for fines. In later years, the Texas Legislature added community service as an alternative to fines as well as a requirement that judges determine whether someone is indigent before locking that person up for failing to pay. A law passed in 2007 requires judges to make that determination in writing.

Despite the decade-old requirement that muni judges and JPs now must make indigency determinations in writing, wrote Barajas:

Lawsuits filed across the state contend that’s not happening. Last year, Austin was added to the growing list of cities across the country that have come under fire for municipal court practices, with a class action lawsuit filed in federal court by the Texas Fair Defense Project alleging the city “operates a debt-collection scheme that jails dozens of people each month because they are too poor to pay.” Earlier this year, attorneys in Amarillo filed a similar lawsuit saying that city’s collection practices amount to a “modern-day debtors’ prison.” [Ed. note: Our old friend Jeff Blackburn is involved with this one.] According to the lawsuit, Amarillo’s courts dispose of cases by assessing jail time over alternative punishments (like community service, a waiver or a fee reduction) at a ratio of about 47 to 1, despite the city’s 17.1 percent poverty rate. The Texas Civil Rights Project sued the city of El Paso following a Buzzfeed News investigation that uncovered several Texas courts, including one in El Paso, that had failed to give defendants a legally required indigency hearing before jailing them.

Here's an issue I hadn't seen flagged before:

That Houston cops would jail someone for outstanding municipal court warrants isn’t surprising, not when you consider the language printed on each of those warrants commanding “any peace officer of Houston, Texas” to take the defendant into custody “and place him in the jail of your city until the said amount due upon said judgment and the further costs of collecting the same are paid or until the said defendant is otherwise legally discharged.” Trigilio with the ACLU called the wording of those warrants “problematic.”

We also get this data tidbit:

It’s unclear how many of the thousands of people Houston municipal courts have sent to jail in recent years couldn’t pay or simply would not pay. However, Mary Schmid Mergler, with the advocacy group Texas Appleseed, says there’s pretty good evidence the city is jailing people who should obviously qualify as indigent. Mergler, who is compiling a report due out next month on municipal court practices across the state, says data she pulled from Houston’s Municipal Courts Department show that between the start of 2012 and the end of 2015, 12,132 people were jailed for failure to pay fines or to otherwise comply with a municipal court judge’s orders. That averages out to approximately 3,000 per year, or about eight per day. According to Mergler, more than 1,000 of those defendants were listed as “homeless.”

Good stuff. It's exciting to see all the interest and action surrounding these heretofore obscure and seldom-discussed issues. We are living through a period pregnant with opportunity for criminal-justice reform, from Congress to the statehouse in Austin all the way to the most humble county jail or municipal court. One prays Texas doesn't miss the moment.

Failed litigation may still spur debtors prison reforms in Austin

Though litigation against debtors prison policies in Austin municipal courts was thrown out because of, essentially, a technicality (the question of the constitutionality of jailing indigents to collect fines and fees remains unaddressed; a federal court instead ruled that municipal judges are not city policymakers and therefore can't be sued), the allegations brought by the Texas Fair Defense Project continue to make waves. Reported the Austin Statesman's Jazmine Ulloa:

the lawsuit has set in motion efforts to examine and change procedures within Austin’s municipal courts.

City leaders and civil rights lawyers say it’s not a matter of avoiding further litigation: They want Austin to be among the first communities to tackle what has become a national problem.

Texas law and two unanimous Supreme Court decisions prohibit courts from jailing people because they cannot afford to pay their fines. But many cities have ordinances on municipal court fees that violate those orders. Others give full discretion on payment collection to judges who skirt the law.

Courts across the nation are facing lawsuits over municipal court policies that plaintiffs say have turned jails into modern-day debtors prisons. The issue is brewing in political forums, among academia, in courtrooms and in civic conversations at every level of government.

In addition, reported Ulloa, "El Paso and Amarillo have been sued over their policies, while a report commissioned by Mayor Sylvester Turner in Houston found that the city, like Austin, rarely reduces or waives payment."San Antonio's municipal courts were praised for having eliminated jail time for nonpayment:

“Contrary to fears, there were no spikes in traffic crimes, and the city did not lose revenue,” [Judge John] Bull said.

In 2014, San Antonio’s Municipal Court dropped $327,514 in misdemeanor fines because the offenders were too poor to pay, criminal justice experts said. That same year, Austin’s Municipal Court reported that it didn’t reduce or waive any fines for that reason.

Soon, I want to sit down with Rebecca Bernhardt from the Texas Fair Defense Project, perhaps for another podcast, to talk through the various litigation going on related to fees, bail, and other drivers of local county jail incarceration. There's a lot more interest in these topics now than any time in my adult lifetime - maybe more than there ever will be again. It'd be a shame to waste the moment of opportunity.

MORE: See an op ed from one of the plaintiffs in the case that was dismissed in Austin.