Ramping up debtors' prison in Waco

In McLennan County, Municipal Judge Christopher Taylor changed the policy regarding incarceration for unpaid traffic tickets, insisting that anyone who can't pay in full must "sit behind bars for time credit." The Waco Tribune Herald  reported on the issue July 5 in an article titled "Run a red light in Waco? Now you could land in jail":

Most drivers pay [a] fine after making a promise to the judge they will pay a certain amount by a certain date, Taylor said. If that individual doesn’t pay, an arrest warrant is issued, and the person can be re-arrested. After a few hours in jail, the individual goes before the judge again, promising to pay the penalty fees.

Taylor said that’s about to change.

Once a person has not made payments and is arrested again, he said, the individual will be required to pay in full the remaining amount right then, or sit behind bars for time credit.

Ridiculously, "Waco Mayor Malcolm Duncan Jr. said the idea started as a way to help residents by allowing them to sit out a payment from behind bars and not just accumulate additional fines that they can’t get out from under." So the city is pretending they're doing broke drivers a favor by incarcerating them for nonpayment. I bet you they don't receive many "thank you" cards.

Grits passed along this atrocity of a policy to our friends at the Texas Fair Defense Project and their staff attorney Emily Gerrick had this to say:

The title of the article is strange to me, since the Waco municipal court has been jailing low-income people at incredibly high rates for a long time now. In 2013 alone, Waco jailed people in more than 10,000 cases for debt stemming from traffic tickets and other class C misdemeanors.

Putting traffic offenders in jail just because they can't pay something does not improve public safety. Instead, it costs struggling people their jobs and traumatizes their children. Waco needs to stop wasting taxpayer dollars on jail beds for debtors and start thinking about what's best for its residents. 

I think the most important thing for Waco to do is to start utilizing statutory waivers. Waco's self-reported data indicates that it waived debt in 0 cases in 2013, and that figure is consistent with an independent OCA study from 2011. Waco is also very hesitant to use statutory payment alternatives like community service. While more than 60% of 2013 cases included jail credit, only about half a percentage point of cases included community service credit.

So Waco is already using jail disproportionately to punish Class C misdemeanors, never waives fines, and almost never utilizes community service. In other words, Taylor's new dicta just doubles down on a bad policy.

Further opined Gerrick, Waco could also use "positive tools to encourage on-time payment of fines instead of relying on heavy-handed and expensive strategies like ordering jail time for failure to pay," including "amnesty days and in this particular instance some leeway and adjustments of payment plans when somebody misses a payment instead of automatic issuance of a warrant."

That'd be wiser and more cost effective than jailing anyone who can't pay. But this policy change is more about Waco's pointlessly punitive local legal culture more than any legitimate public safety goal. "Cost effective" really isn't an issue at play.

Actual innocence case from Brownsville: Teen choked by city jailer he was falsely accused of assaulting

Here's an actual innocence case out of Brownsville that doesn't exactly fit the DNA exoneration mold, from the Courthouse News Service, which reports the story of George Alvarez, who "spent 4 years in prison based on a Brownsville Police jailer's false assault charge against him, and BPD's concealment of a video that proved his innocence." The Court of Criminal Appeals recently approved his habeas corpus writ based on "actual innocence" grounds, and he's filed a civil rights lawsuit (pdf) in federal court. (Texas has no state civil rights statute of its own comparable to Sec. 1983 in the Civil Rights Act.)

Alvarez was 17 years old, 5'4" and a slight 135 lbs. when he was jailed for allegedly burglarizing a car then attacked and choked by a 200 pound city jailer. The jailer filed an offense report claiming Alvarez attacked him seeking assault charges, but he and his superiors failed to include with the complaint exculpatory video evidence showing that was not true. The blue wall of silence continued even after the evidence was discovered during an investigation by BPD's internal affairs division, making them complicit in the coverup. What's fascinating to me is how the exculpatory evidence was ultimately discovered, a roundabout tale described in the closing paragraphs of the article:

While Alvarez was doing his time, a detainee named Jose Lopez filed a similar lawsuit against BPD "for use of excessive force by its jailers, for the withholding of video evidence, and for the filing of fabricated charges against him," according to the complaint.

Through discovery in the Lopez case, the video of Alvarez was discovered in BPD's internal affairs records, Alvarez says: "Plaintiff George Alvarez's CD was buried inside an internal affairs folder along with the Brownsville Police Report filed against plaintiff," Alvarez says. "Counsel for plaintiff noticed that a police report charging George Alvarez with felony assault was attached to the CD and also noticed that the police department withheld the CD and did not include it as part of the police report. A review of the CD quickly revealed its exculpatory content."

Alvarez filed for habeas corpus and the Texas Court of Criminal Appeals found him "'actually innocent' of the charges that sent him to prison," according to the complaint.

He seeks punitive damages from the City of Brownsville, Police Chief Carlos Garcia, Jailer Jesus Arias, Sgt. David Infante, Lt. Henry Etheridge and Cmdr. Robert Avitia.

Quite remarkable: There were not one but at least two cases where the Brownsville PD Internal Affairs division allegedly withheld exculpatory video to cover up assaults by their employees, one of them resulting in a man being sprung from prison on an "actual innocence" habeas writ. This is the biggest police department on the eastern end of the Rio Grande - how confident does this make you that BPD Internal Affairs is diligently pursuing corruption among their rank and file officers?

Here's a link to Alvarez's habeas writ before the CCA, though regrettably all the documents don't appear to be linked there as one would usually expect.

Senate Criminal Justice Committee: Highlights from interim recommendations

The Texas Senate Criminal Justice Committee has posted its 115-page Interim Report (pdf) online, which is a written summation of recommendations in response to "interim charges" given to the committee by the Lt. Governor to prepare for major issues where legislation is anticipated. I haven't yet gone through the thing with a fine-tooth comb, but here's a preliminary taste of highlights from the recommendations:

Don't participate in new federal sex offender regimen
The committee recommended against Texas' participation in the federal Adam Walsh Act related to additional restrictions on sex offenders. Mostly the reason is money. The feds punish noncompliant states by reducing their "Byrne" criminal justice block grants by 10%, however, "Retaining the ten percent of federal funding is not adequate incentive because the cost to implement the changes to registries would cost much more than states would lose. In Texas the loss would be $1,404,571, where as the cost is assessed at $38,771,924."

Eliminate or scale back Driver Responsibility program; allow deferred for DWI
The committee declared the need to, "Eliminate or greatly reduce the Driver Responsibility Program surcharges as they relate to DWI convictions. The increasing number of drivers who are unlicensed and uninsured is unacceptable." They also want to eliminate Texas' prohibition on deferred adjudication for DWI.

Reduce causes for driver license revocations
Only maintain requirements for license revocation in Texas statutes required under federal law. Consolidate all those in one statute and eliminate the rest.

Compliance enforcement on indigence defense
A potential sleeper recommendation for the Task Force on Indigent Defense suggests that the state "Enhance TFID's ability to enforce compliance with the Fair Defense Act and track local indigent defense processes by improving data collection and transparency, including reporting on caseloads of appointed counsel and public defenders."

Require new reporting on municipal jails
The committee suggested requiring new reporting from municipal jails to the Texas Commission on Jail Standards which would be public, but did not go so far as to advocate putting them under full-blown TCJS regulation/inspection, etc..

Make crime labs independent
Here's a suggestion that won't happen quickly: "All crime labs should be independent of law enforcement, investigators and prosecutors. DPS should ensure that state crime labs are free from influence from other divisions of DPS."

Charge counties for DPS crime lab services
There's a suggestion that DPS begin charging law enforcement for crime lab services, which would be a big economic blow to smaller agencies: "Inequities exist with state crime labs services being provided free to only half of the citizens and no consideration given to the citizens who support these programs with local funds. State crime lab services should be on a fee recovery basis and legislature mandating such is supported." Presently, DPS provides crime lab services for free, but backlogs are large and most bigger jurisdictions have their own labs paid for by local taxpayers, creating the "inequity" described in the report. Making smaller counties pay for this service makes sense from an equity standpoint, but from their perspective it would be a big unfunded mandate.

Improve TCJS monitoring of mental illness in jails
The committee considered the issue of mentally ill people in jails, but settled on advocating additional reporting requirements through the Commission on Jail Standards. "Due to the limited authority the state has over local jails, the only possible enforcement and monitoring tool is through the TCJS standards. Requiring TCJS to incorporate compliance standards in their routine inspection practices will partially address this situation."

Downsize TYC, merge with juvie probation
The committee advocates that Texas "Continue to downsize TYC and its central office to the appropriate level required for their reduced population," and "Revisit the last session's sunset recommendation to consolidate all Juvenile Justice Agencies into a new Department of Juvenile Justice and reduce the apparent redundancies in the current organization structure." That latter recommendation flies in the face of the Sunset Commission recommendation to keep TYC and the Juvenile Probation Commission separate.

Reduce criminalization of school discipline
I'm a big fan of two of the changes recommended related to school discipline. First, they recommended the Lege "Amend Chapter 37 of the Education code by narrowing the definition for "Disruptive Activities", "Disruption of Classes", "Serious and Persistent Misbehavior" to eliminate non-criminal acts." They also suggested to "Amend Chapter 37 of the Education Code by changing the dangerous or disruptive violation to dangerous and disruptive, In order to insure students are not being removed for simple disruptions to class." Another notable suggestion: "Exempt 18-21 year olds from the truancy laws."

Scandalous state of city jails unlikely to change anytime soon

Brandi Grissom at the Texas Tribune reports that "Since 2005, 66 people have died" in municipal jails that are unregulated by the State Commission on Jail Standards, 40% by suicide. She quotes a warning from

James McLaughlin, the executive director and general counsel of the Texas Police Chiefs Association, [who] says city jails are so small and inmates stay there for such short periods of time that it would be unrealistic to apply county jail standards to municipal facilities. Plus, he says, it would be expensive. “You’d see a lot of those [jails] shut down,” McLaughlin says.

But of course, if tiny municipal jails can't operate safely, a lot of them probably should shut down. Grissom adds that:

At a recent meeting of the Senate Criminal Justice Committee, jail standards officials told lawmakers that city-run facilities should face more scrutiny. Currently, there are no monitored state standards in place for either construction of or conditions inside municipal jails. And there is no requirement that city jailers be trained or certified. Since 2007, the commission has received dozens of complaints about conditions in city jails, most commonly about sanitation, food, supervision and medical care. One of the most disturbing complaints the agency received was from an inmate who said that when she was arrested, an officer put her in a jail cell, handed her a cell phone and told her to call him if she needed anything. “The complainant was left locked in the jail cell with no supervision or contact … for three hours,” according to the commission's report to lawmakers.

With no authority over city jails, there’s nothing the commission can do about those complaints. 

Here's a telling example of how these jails currently oversee inmates in their care:

At the Senate Criminal Justice Committee hearing last week, Hedwig Village Police  Chief Dave Barber told lawmakers that he might have to shut down his eight-cell lockup if he had to meet the same standards as county jails. His small town is a Houston suburb, and at most, he said, he has about two or three people at a time in the jail. The longest anyone can stay there, he said, is 56 hours.

With so few people in his jail, Barber said, it doesn’t make sense to hire a full-time, licensed jailer. Instead, he keeps a timer in the station that is set to ding every hour. When the timer dings, an officer walks back to check on the inmates. If all of the officers are out on patrol, the dispatcher checks on the jail. And he said his wards are fed three squares a day — each one a McDonald’s Happy Meal. “It’s embarrassing to tell you this,” Barber told the committee. “But this is the way that most of us operate.”

Pitiful. Just pitiful. And we're supposed to believe such "services" are something municipalities just can't live without? What a crock. Barber's main argument for keeping the jail is that they'd otherwise have to pay the county for locking up the same inmates, but running jails costs money. Regrettably,

Combine the budget woes with the political power of city leaders and police chiefs who oppose municipal jail regulation and [Senate Criminal Justice Committee Chair John] Whitmire says he has no expectation that those facilities will face more accountability anytime soon. “If there are abuses, we have remedies,” he says. “We have civil rights laws. We have Texas Rangers. We have investigative bodies.”

It's too bad the Rangers, District Attorneys and other "investigative bodies" have been, and will likely continue to be, complicit in sweeping such problems under the rug instead of holding those responsible for abuse and neglect accountable. This may be a situation where civil litigation must drive up costs enough to make sending the inmates to county jails more financially attractive before (supposedly) responsible parties make what seems like an obvious decision: Cities that can't afford to adequately staff jails and provide medical and other services simply shouldn't operate them.