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Your correspondent was asked to speak tomorrow at an Investigative Reporters and Editors conference in Houston on the topic of covering prosecutors. I told them I'd focus on three areas: Available data on prosecutors (focused on Texas), innocence issues, and context for covering so-called "progressive prosecutors." Since I had to prepare, anyway, here are a few highlights:

Texas prosecutor data

For the most part, data on prosecutors is scarce. In Texas, the first concerted effort to dig beyond the surface came from a reporter (now an attorney) named Cindy Culp, writing at the Waco Tribune Herald, 2009. (The stories are no longer available free online, but here are some excerpts, and Grits' contemporary coverage of her work.) The police union had accused the local DA of dismissing too many felony cases, so Culp examined case-dismissal rates in 3 counties - McLennan, Wichita, and Jefferson. She found:
Local prosecutors either refused or dismissed 50.3 percent of felony charges during 2006-08. For misdemeanor cases, there was a 39.7 dismissal/refusal rate, and for all cases combined, it was 43 percent. 
By comparison, during the same three years: 
* Prosecutors in Jefferson County, home to Beaumont and Port Arthur, refused or dismissed 45.7 percent of felonies, 40.4 percent of misdemeanors and 42.2 percent of all cases combined. 
* Prosecutors in Wichita County, where Wichita Falls is the county seat, refused or dismissed 46.3 percent of cases with felonies and misdemeanors combined. Data were not available broken down by felony versus misdemeanor.
The main thing Culp's work showed, however, was how hard it is to acquire meaningful prosecutor data and analyze it in a way that's useful and informative. She showed us more than we'd seen before, but also made more glaring the stark absence of data regarding prosecutorial decisions.

No one else attempted to track this data until the Texas Criminal Justice Coalition created its Harris and Dallas County Data Dashboards: https://tcjcdashboard.org/

This resource lets case data be broken down by charge, by race, by census tract, and by arresting agency. Probably the two most interesting and/or newsworthy analyses will pertain to racial disparities, which can be broken down by type of crime and arresting agency. That takes these analyses several steps beyond the Culp's agency-wide analysis. But it's not available except for those two counties. And it's not clear it could be replicated everywhere through open records requests; both those counties have more robust data systems that could be scraped for these purposes.

Otherwise, in Texas what's readily available is Office of Court Administration Data:
The annual report gives statewide and county-level trends for new cases, overall caseloads, number of convictions/pleas/jury trials, and case clearance rates. The number of new cases and convictions both are often a useful datapoint to combine with other sources to make various calculations. Summary information at the front of the report may be useful, but more interesting are the data tables at the end.

Data queries allow MUCH more detailed breakdowns by county. In addition to county-level data on the datapoints from the Annual Statistical Report, you can get data on motions to revoke probation.

One of the best-kept secrets in the Texas judicial data can be found with a municipal and/or JP-court query. Select "Additional Activity" at the drop-down box under "Section." There you can find data on arrest and search warrants, Class C fines, how many fines are waived, how many were satisfied through community service, jail credit, etc. Prosecutors play a role in all of these decisions.

Another data-based story angle: just recently, Keri Blakinger of the Houston Chronicle published a landmark article on prosecutor caseloads at the Harris County DA, showing that District Attorney Kim Ogg had significantly overstated the prosecutor-to-cases ratio when pitching the commissioners court to let her hire 100 new prosecutors. Her open-records-based methodology would be interesting to replicate in large cities where caseloads may be an issue. For more background on the caseload issues, see this academic article, also focused on Harris County. To my knowledge, this caseload story has not been replicated elsewhere. If you're going to do this work in Texas, the Indigent Defense Commission keeps excellent, county-and-lawyer-level data on defense-attorney caseloads for comparison.

Data gaps: There are more parts of a prosecutors' job about which we don't have data than those we do. One of the most glaring data gaps regards plea bargaining and the "trial penalty" - i.e., how much more harshly defendants are penalized if they insist on the state proving their case at trial. Most datapoints that exist for prosecutors involve taking cases to trial, but overwhelmingly most cases (97+%) are resolved by plea bargaining. That process is a black hole with scarce little quantitative or qualitative information ever arising from it. But it's the most important (and common) thing prosecutors do.

Finally, Larry Krasner in Philadelphia and perhaps a few other new "progressive" DAs are beginning to generate more and different types of data. Although my presentation only discusses Texas datapoints, their example eventually may educate us about different analyses that DAs can do with their internal data that hasn't typically been made public in the past. This is an aspect of the progressive DA movement that could have out-sized impact down the line, providing transparency to what has been an utterly opaque process.

Prosecutors and Innocence

My first bit of advice to this group when it comes to prosecutors and innocence:

Don't contribute to tunnel vision in high-profile cases: The cases that receive the most media attention paradoxically put the most pressure on prosecutors to cut corners to get convictions. In these instances, journalists play less a role of holding government accountable than government cheerleader, since the government (read: prosecutors) control all the evidence presented. That's both useful to understand after the fact when covering innocence cases, and a cautionary tale when covering cases on the front end. Sensationalized coverage of high-profile trials may not reach jurors, but it reaches voters and DAs react to it. (Watch Ava Duvernay's When They See Us on Netflix for an excellent example.) Given that we've seen so many such cases later overturned through DNA exonerations and other means,  the press has some soul searching to do when it comes to pandering to the public with salacious coverage and their role in generating false convictions.

Otherwise, when false convictions have already occurred, there are a handful of issues in innocence cases that fall directly on the shoulders of prosecutors. Here's what to look for:

Improper arguments: Prosecutors may say things at trial that can lead jurors to wrong conclusions: e.g., misstating the law, or relying on perjured testimony. These flaws likely will not be evident to reporters from the trial record (which is another reason to be cautious when covering trials up front), but typically will arise in appellate arguments down the line.

Failing to disclose exculpatory evidence: Brady v. Maryland is the federal case covering what prosecutors must disclose to the defense, but in Texas we passed the Michael Morton Act, which makes the requirements more stringent and requires disclosure earlier in the process. In Texas, prosecutors now must create a list of what was turned over and make it part of the record. This is an issue that will only come out in the appellate process; it's impossible to know at trial what evidence a prosecutor DIDN'T present. For an example of how to analyze appellate records to identify this type of prosecutor misconduct, see a study of California cases by the Veritas Institute.

Police records a gap in the system: Prosecutors cannot disclose records of police misconduct in Texas civil service cities governed by the state civil-service code: about 74 police departments out of nearly 2,000 statewide. That's because police-misconduct records in civil-service cities were made confidential by law in 1989, with departments forbidden even from sharing the information with other law enforcement agencies. (Of the large cities, only Dallas and El Paso aren't under the civil service system. Among sheriffs, only Harris County operates under this system.) In one case in San Antonio, a false conviction was overturned when police did not turn over video evidence of an officer assaulting a handcuffed defendant; instead, the defendant had pled guilty to assaulting the officer! So sometimes, Brady or Michael Morton Act violations may not be a prosecutor's fault, even if they're the ones with the legal obligation to turn it over.

The national exonerations registry is a great starting point for identifying innocence cases in your jurisdiction and for more examples of various types of prosecutor misconduct. Check it periodically for cases in your state that may have flown under the radar.

Setting expectations re: "progressive prosecutors"

Lately, we have seen prosecutors elected as "progressives" in America for the first time in nearly a century. But beware these labels. Podcast listeners heard a related discussion toward the end of our June episode.

Before Larry Krasner in Philadelphia, I considered the notion of a progressive prosecutor a myth. Krasner makes the best case for the possibility of a progressive prosecutor. Krasner's memo to prosecutors on charging and sentencing was a landmark moment, and self-styled progressive prosecutors should be judged based on how much of that agenda they're implementing in their jurisdiction. Most Texas prosecutors labeled "progressive," for example, aren't coming close.

But at the end of the day, I still don't believe in progressive prosecutors because the DA's function is fundamentally regressive. As I put it on the podcast, "A prosecutor has just one tool in the toolbox. They lash out with the power of the state to exact retribution on someone who violates its dicta." There is simply no "progressive" function involved in that activity. Their only power, and only leverage, comes from harming people in retaliation for ignoring state pronouncements. When that pronouncement is "don't murder" or "don't rape," the public broadly supports their function (at least until it came to light how often innocent people are convicted). But when that pronouncement is "Don't smoke pot," the prosecutorial function becomes more controversial.

My belief is that the #cjreform movement's focus on prosecutors has been overblown. They're important, but not the only decision makers in the system. And focusing exclusively only on them lets others - e.g., legislatures, police, judges, crappy defense attorneys - off the hook.
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Here's the June 2019 episode of Just Liberty's Reasonably Suspicious podcast:


In this month's episode:

Top Stories
Fill in the Blank
  • Texas Supreme Court: DAs can order prosecutors to violate constitutional rights
  • Bail-reform died, and that's a good thing
  • Should Texas prisoners all become plumbers?
Discussion: Are progressive prosecutors really a thing?

The Last Hurrah
  • Red-light cameras abolished, will debts be erased?
  • Colorado, Oklahoma surpassing Texas on #cjreform
  • Evidence left behind after Houston SWAT raid
As usual, Grits has ordered a transcript and will add it below the jump when it comes back.
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Having mentioned a handful of #cjreform victories from the 86th Texas Legislature - most notably, by far, abolition of the Driver Responsibility surcharge - we must also acknowledge that the session overall was a major disappointment for anyone interested in reforming the justice system.

Heading into the session, there was cause for optimism. In the Texas House, Speaker Joe Straus for a decade had refused to let #cjreform legislation receive floor votes, while Speaker Dennis Bonnen was much more willing to let members vote on significant reforms. The Governor had endorsed both bail reform and reduced marijuana penalties. And both party platforms had endorsed important reform proposals that entered the session with bipartisan support.

Accentuate the positive
Once the session began, however, it became clear the Senate in particular was all but a lost cause. Senate Criminal Justice Committee Chairman John Whitmire spent more time shooting down reform legislation than promoting it. (We must accept that raise-the-age and police transparency legislation, for example, will never receive hearings, much less pass, as long as he chairs that committee.)

Reformers have lost all our senate champions over the last few cycles - nobody has stepped up to replace Rodney Ellis or Konni Burton's work on these issues - and Lt. Governor Dan Patrick remains hostile even to minimalist reforms, like reducing pot penalties.

Indeed, since Patrick took over the role of Senate President in 2015, Texas has seen scarce little reform legislation compared to, say, 2007-2013, when an array of decarceration and innocence reforms established Texas as a national #cjreform leader.

These days, the Lone Star State can no longer claim that mantle. Not only has California decarcerated more significantly than Texas (with the help of federal litigation, to be sure), but since 2014, Oklahoma, Utah, Alaska, Connecticut and Colorado have all reduced user-level drug possession to a misdemeanor. Texas has never even seen such legislation get out of committee, and this session nobody even tried. Past efforts had evinced tepid support in the House, and the bill clearly could never even be debated in the Texas Senate under the current leadership.

Grits can think of only five significant #cjreform bills passed in Texas since Dan Patrick became Lt. Governor: 1) increasing property-theft thresholds (which happened in 2015 via amendment, not a bill), 2) eliminating the "key man" system for grand-jury selection (we were the last state to do it), 3) the 2017 Sandra Bland Act (which had the most popular provision that would have saved her life stripped from the bill), 4) debtors-prison reform legislation in 2017 that made it easier for judges to waive fines (though still, 10x as many are jailed as have them waived), and 5) this year's abolition of the Driver Responsibility surcharge, an effort 12 years in the making.

While these were not insignificant bills, they're definitely overshadowed by accomplishments in other states.

Beyond that, the capitol grounds are littered with the corpses of modest, bipartisan #cjreform legislation, much of which would have relieved pressure on cities and counties at a time when the Legislature also restricted their revenue. Here are some of the cost-saving measures the Legislature failed to pass that would have helped counties reduce their expenses:

Reducing marijuana penalties
This passed the House with overwhelming support and would have eliminated around 75k arrests per year, as well as the resulting incarceration stints. But Senate Criminal Justice Committee Chairman John Whitmire and Lt. Gov. Dan Patrick were quick to shoot down the idea and declare it would never be heard in the Texas Senate.

Limiting Class C misdemeanor arrests
House Democrats famously shot themselves in the foot, killing legislation that, had it been law at the time, would have prevented Sandra Bland's arrest, incarceration, and ultimately her death. Statewide, there were about 76k Class C arrests in 2017, extrapolating from primary research by Texas Appleseed. In Austin, where police implemented a policy on Class C arrests that complied with the proposed law, arrests declined by nearly two-thirds. If that proportion held statewide, the law would have prevented 45-50,000 arrests per year.

Reducing DWLI penalties
Although the Driver Responsibility surcharge has been abolished, 1.5 million people still have their licenses suspended because of it. And when they're caught driving without a license a second time, they're charged with a Class B misdemeanor, meaning police arrest them and counties must pay for incarceration and indigent defense costs. HB 372 (Allen) got out of committee this year but the House Calendars Committee never gave it a floor vote. According to the Office of Court Administration, there were 22,427 new Class B DWLI charges in 2018. Her bill which would have changed the penalty to a Class C - would have prevented most arrests for this low-level administrative violation.

Eliminating debtors-prison practices
Regular readers know that more than a half-million Texans last year sat out their Class C misdemeanor fines in jail, while roughly a tenth of that number had their fines waived for indigence. Rep. James White filed legislation to stop arresting people who don't pay Class C fines and using commercial collection practices instead, a measure endorsed in both the Republican and Democratic Party state platforms. But heated behind-the-scenes opposition made it clear the bill faced trouble this year and likely couldn't make it through the gauntlet. So Chairman White "substituted" in the language from Sandra-Bland bill, discussed above, after Homeland Security and Public Safety Committee Chairman Poncho Nevarez refused to give Senfronia Thompson's HB 482 a vote in his committee. In the end, debate over the original bill was vigorous, but never public. But a lot of intelligence was gained to promote the idea again in two years.

Bail-reform blues
Bail reform died, but that's probably a good thing. As Grits has described previously, the legislation in play failed to address constitutional concerns arising in federal litigation, and created a new, politicized advisory panel to monkey around in what should be evidence-based risk assessments. Texas is MUCH better off waiting to see what the courts do on this before legislating. Texas needs bail reform, but only if it's done right. This legislation was a hot mess.

In addition to all the bills dying that would have reduced incarceration in county jails, measures to limit state-prison intake numbers also foundered:

Three-strikes misdemeanor theft
Three-strikes theft reform (HB 1240 by Davis) was another good bill that died in the Calendars Committee without a floor vote. Presently a defendant's third misdemeanor theft may be automatically "enhanced" (read: increased) to a state jail felony, regardless of the item's value. This legislation would have scaled back the enhancement for lower-value items to go up only one category - e.g., theft of a Class-C-value item would be enhanced to a Class B, not a state jail felony. This legislation sailed out of committee and appeared to be doing fine until Dallas DA John Creuzot announced his own decarceration initiatives mid-session. One of them was that his office would use discretion not to prosecute people stealing personal items with no intent to sell them or profit. The Governor proceeded to go into full-demagogue mode, and his agents killed the bill in the Calendars committee.

Probation reform
A modest probation reform bill passed the House which looked for a moment like it had legs. Chairman Whitmire had filed the companion bill, and his former staffer Terra Tucker was promoting the bill for the Alliance for Safety and Justice. But Whitmire never gave the bill a hearing in his own committee, even though it cleared the House with plenty of time to pass. Further evidence the Texas Senate has become a black hole for #cjreform.

Pretrial diversion nixed
An agency bill proposed by the Texas Department of Criminal Justice would have expanded pretrial diversion programming in ways that would have an undetermined but not insignificant de-carceral effect. The bill passed out of committee but died in Calendars without receiving a floor vote in the House.

Motion for a new trial
This one still has me fuming! HB 4202 (Smithee) was an elegantly designed bill which would have allowed for out-of-time motions for a new trial in cases where someone is sentenced to more than three years if the prosecutor and judge agree. Cases could either be dismissed or new sentences agreed upon. Debates surrounding the bill centered mostly on innocence cases - particularly the Houston drug convictions based on faulty field tests - but it also could have implications for people with unreasonably long sentences or even problematic death-penalty convictions. Astonishingly, this gem of a bill passed the Texas House with NO ONE voting against it! It cleared committee 9-0, passed the House 142-0, but never received a hearing after it was referred to the Senate Criminal Justice Committee. Another black-hole victim.

Earned-time Credits
After Donald Trump signed the First Step Act, which included provisions to give more generous "earned time" credits to offenders who demonstrate good behavior or diligent participation in programs, some observers hoped similar legislation in Texas might get a boost. But HB 1271 (S. Thompson) never earned the votes to make it out of the House Corrections Committee. While most decarceration bills in Texas have been aimed at lower-level non-violent offenses, this bill would (modestly) chip away at incarceration rates for people convicted of violent crimes whose only chance at release is parole. It also would provide new tools for administrators to punish inmate misbehavior, incidentally, as credits earned can also be taken away. Taking a few weeks or months off of the longest TDCJ sentences in exchange for pro-social behavior inside should be a no-brainer, from a corrections-best-practices perspective. But legislators remain fearful to do anything that might benefit anyone convicted of a violent crime, which is to say, a majority of Texas prisoners.

Other justice-reform legislation also fared poorly:

Death Penalty
The Texas House passed legislation to fix the state's unconstitutional standard for executing intellectually disabled people and another bill addressing capital punishment for people with severe mental illness. But the Senate radically watered down the ID bill and the two chambers couldn't come to an agreement. After the SMI bill passed the House, the Lieutenant Governor never referred the bill to committee; another black-hole victim.

Closing the 'dead-suspect loophole' to the Public Information Act
After Speaker Pro Tempore Joe Moody amended his legislation to close the "dead suspect loophole" to the Public Information Act to a Senate bill by Kirk Watson that restricted records access, the Austin senator refused to concur and took the bill to conference, where Moody agreed to strip it off. The amendment was the subject of an intense lobbying campaign by police unions, and in the quarter century I've known him, starting as Austin's mayor, Watson has never bucked their agenda. It's little surprise that this time was no different.

Transparency for police misconduct
Thirty years ago, police unions convinced the Legislature to exempt personnel files at around 70 out of 2,500 law enforcement agencies from the Public Information Act if they had opted into "civil service" provisions of Chapter 143 of the Local Government Code. But after the Lege passed the Michael Morton Act in 2013, it became apparent this provision was allowing police departments to withhold evidence of prosecutor misconduct even from District Attorney offices, leading to egregious miscarriages of justice. Sen. Juan "Chuy" Hinojosa filed SB 433 to fix the problem, but it couldn't get a hearing in Whitmire's Criminal Justice Committee.

No A/C expansion for Texas prisons
A bill that began as a suggestion to provide air conditioning to Texas prisons became a bill to study the issue, then even that couldn't pass. Grits has said for years that only federal litigation will force Texas to do this, certainly as long as John Whitmire chairs the Senate Criminal Justice Committee.

Personal location data remains poorly protected
In the wake of the US Supreme Court's Carpenter decision, the Texas Senate approved one of the few reform bills to come out of that chamber this year requiring law enforcement to secure a warrant to access personal cell-phone location data from cell-service providers, including both historical and real-time data. But Google and Facebook intervened in the House and the legislation died in the committee. Apparently they objected to transparency provisions that would let Texans know how often law enforcement access location data they hold about users. That's understandable - IMO people would be shocked if they knew how frequently law enforcement accesses that highly personal data. And the Texas Court of Criminal Appeals is doing all it can to limit the extent to which Texas state courts require warrants under the Carpenter ruling. But in Grits' view, the tide of history is against them. This legislation would have prevented a lot of headaches.

Grits could go on. In many ways, the abolition of the Driver Responsibility surcharge was the biggest #cjreform success in years. But it was a lonely victory, and the dynamics on most other topics makes it difficult for reformers to muster a sanguine outlook for the near future without unforeseeable changes in the Texas Senate.
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Texas justice reformers will spend the next couple of years lamenting what the Texas Lege DIDN'T do in 2019 - e.g., reduce marijuana penalties, pass the Sandra Bland law, close the dead-suspect loophole to the Public Information Act - or else frustrated by new criminal penalties boosting sentences for petty offenses.

But it's worth giving legislators credit for what they DID do on #cjreform, and by far the most important measures relate to providing relief from justice-system debt:

Abolishing the Driver Responsibility Surcharge: The Texas Fair Defense Project estimates that $2.5 billion in justice-debt will be wiped off the books on September 1st when HB 2048 takes effect, and some 1.5 million people will be eligible to have their drivers licenses reinstated.

Eliminating red-light cameras: While a few cities have lengthy contracts which will keep red light cameras operating for years to come, the Legislature eliminated the ability to deny vehicle registration or license renewal for nonpayment. These cameras affect on safety is dubious, at best, and are viewed by locals as revenue generators.

Limited automatic driver's license suspensions: HB 162 would end the practice of searching driver records to suspend licenses of people driving without them. Now, such administrative suspensions based on a government database search will be limited to people whose licenses are suspended for DWI, and those would be limited to 90 days. The Washington Post last year reported that Texas has more people with suspended licenses than any other state. This new law and abolition of the Driver Responsibility surcharge should go a long way toward knocking that number down.

Defined "undue hardship" in debtors prison cases: In 2017, the Texas Lege approved legislation to make it easier for municipal judges and justices of the peace to waive Class C fines and authorize community service. But many local judges had been defining the term "undue hardship" narrowly to avoid waiving fines. Amendments to SB 346 define that term so that more fines will be waived. This was a cleanup bill, but quite necessary: Although more than 50,000 people had fines waived in the 2018, for example, more than ten times that number sat out their Class C fines in jail.

Two of these - surcharge abolition and eliminating red-light cameras - were pushed by reformers for 12 years before finally passing.

Overall, Grits is disappointed with the 86th Texas Lege, and particularly the Texas Senate, which produced scarce little reform legislation of consequence and killed most of what came over from the House. These bills amount to a consolation prize. But as my father likes to say, that's better than a sharp stick in the eye.
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In a Texas legislative session where scarce little justice-reform legislation of any stripe made it through the process, the abolition of the hated Driver-Responsibility surcharge will be remembered as the signature accomplishment. The bill getting rid of the program has finally passed and HB 2048 is headed to the governor.

From advocates' perspective, there wasn't a ton left to do. In 2017, a proposal to replace trauma-center funding generated by the surcharges with a nearly identical system of new "fines" died in the Senate. At the time, advocates promoted a number of much more reasonable funding solutions, and once it became clear that the most-regressive-possible surcharge repeal did not have a path, legislative leaders resigned themselves to looking at those suggestions.

With Senate Finance Chair Jane Nelson's blessing, Sen. Joan Huffman filed legislation in the senate, with Appropriations Chairman Dr. John Zerwas filing a companion bill in the House, which dropped the traffic-fine increase to $20, tacked a new $2 fee on insurance policies, and jiggled the ratios around regarding who got what to make the hospitals whole.

The bill abolished surcharges for everyone but DWI offenders. They receive 12 percent of all surcharges, so 88 percent of surcharges will be eliminated going forward.

For everyone owing surcharges at the time the bill becomes law on September 1, 2019, the debt will be nullified along with the program. That will allow 1.5 million people whose licenses currently are suspended over nonpayment of surcharges to get their licenses back.

Some of these folks have gone without licenses for more than a decade because they couldn't pay, with surcharges compounding because they drove with revoked licenses. Since 2003, about 3 million people have racked up 16 million surcharges, with half of them losing their licenses permanently, until this bill.

For DWI offenders, the old "surcharges" were kept on the books and renamed criminal fines, tacked on in addition to other punishments already on the books for the offense. But in contrast to "civil" surcharges, judges can waive criminal fines for indigent people. Plus, Emily Gerrick of the Texas Fair Defense Project convinced the senate to add a provision creating a presumptive indigence provision for these fines similar to that for surcharges. And with those perfecting amendments, the bill passed the senate.

This is a moment your correspondent has been working toward for more than a decade. Long-time readers will recall Grits worked with Alison Brock at Rep. Sylvester Turner's office, to create amnesty/indigence provisions for the surcharge, and with Mandy Marzullo, now my podcast co-host at Reasonably Suspicious, to implement the rules at DPS. Hating on the program has been a pet project of mine nearly since the inception of this blog.

The surcharges were created in 2003, and by 2007, people driving with licenses suspended under the program had become a chronic problem. That year, the Legislature changed DWLI on the first offense from a Class B to a Class C misdemeanor because unlicensed surcharge-owing drivers were filling up local jails. They also added DWLI to a list of offenses, the most prominent of which was pot possession, for which police could give citations instead of arresting people. That temporarily stemmed jail overcrowding pressures, though today, in some counties, Class B DWLIs still account for large percentages of the misdemeanor docket.

Indeed, during the worst of it, before indigence provisions kicked in, judges told the Legislature they were sentencing DWI cases as reckless driving or obstruction of a roadway to avoid defendants racking up surcharges that everyone knew they couldn't pay.

So these surcharges have driven misdemeanor-justice policies in Texas in unexpected, weird, and mostly negative, regressive ways for many years now. It's an incredible relief that they're about to go away.

The Texas Legislature may not accomplish much in 2019 on justice reform. But this will help so many people, the one victory nearly outweighs the (heart breaking) losses.
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Police unions are launching a massive misinformation campaign about an amendment to S.B. 815 limiting jail time for Class C misdemeanor arrests. Check out this absurd press release in which they suggest drivers will physically attack cops if police are required to give reasons when they arrest people for Class C misdemeanors. See here for a more reality-based assessment of the amendment.

Cops are doing an all-out blitz against the bill, and Texas state senators need to hear from reform supporters. Go here to find your senator’s contact information and call them now! Ask them to support the House Amendments to S.B. 815.
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The death of HB 2754 (White) limiting arrests for Class C misdemeanors was the strangest bill ride in which Grits has ever participated. Readers will recall that this provision was stripped out of the Sandra Bland Act in 2017, so reformers came back this year for another bite at the apple. The bill has overwhelming support in the Texas House, but now it's dead.

Let's try to unpack what happened:

In essence, Democrats killed the bill twice: first because they didn't understand the legislation (or why current law allowed Sandra Bland to be pulled from her car), and then because a bunch of them left work before the big vote on Friday, so the rules couldn't be suspended to reverse the error.

For bill author James White, a Republican, it's evidence that no good deed goes unpunished. His HB 2754 was narrowed in committee to the Sandra-Bland language because Rep. Senfronia Thompson's HB 482 couldn't get out of the Homeland Security and Public Safety committee. Advocates believed they could count to a majority, but Democratic Homeland Chairman Poncho Nevarez wouldn't give Thompson's bill a vote. So, essentially similar language was substituted into White's HB 2754, which had been referred to Chairwoman Nicole Collier's Criminal Jurisprudence committee. Again, the bill had the votes, so she brought it up and voted it out. The bill found sufficient support to make it through Calendars and landed on the House floor with plenty of time to pass.

First Kill
Before the second reading vote on the House floor, Chairman Nevarez brought White an amendment from the police unions to let officers arrest if the offender failed to present identification. White declined to add it, and Nevarez did not press the matter. On the morning of third reading, however, the police unions brought the amendment to White directly. He added it under his own name on 3rd reading, and the bill passed the House 126-20, with Nevarez "absent."

Because it did not change current practice (officers currently ask for identification at traffic stops in order to write you a ticket and HB 2754 would not have changed that), the amendment was not clearly substantive. Instead, it was a "poison pill" designed by the police unions to change the conversation from overreaching police power to verification of identity at traffic stops - an issue covered by different laws not altered by HB 2754, poorly understood by most of the membership, and likely to gin up dissension. It worked.

After the bill passed, Democrat Shawn Thierry complained to White about the amendment, and in a rare move, he agreed to bring the bill back up and strip it off, even though HB 2754 had already passed on to the senate. Advocates had no idea he was planning to do this. And thus the bill came back up late Wednesday night after it had already passed in the lower chamber.

However, once the bill was brought back up and the amendment was off, Thierry began nitpicking at the rest of the bill in ways that fundamentally failed to comprehend either current law or the effects of the legislation. Currently, police can arrest absolutely anyone for any Class C charge and no other reason; the bill limited this power. But Thierry appeared to believe the bill expanded police authority rather than limiting it. 

Thierry dug in on an open-ended clause in the new limitations that would let police arrest if they had probable cause to believe someone wouldn't show up in court. This was compromise language demanded by law enforcement; certainly it was broader than Grits would prefer, and was the most open-ended exception. But requiring cops to have "probable cause" to believe someone won't show up is an improvement over giving them wholesale authority to arrest without any such justification. Taken as a whole, the measure limited arrest authority compared to current law. Thierry mistakenly believed it gave police new arrest powers.

Then, Nevarez, along with his roommate, Terry Canales, a criminal-defense attorney, stridently doubled down on Thierry's confused interpretation. Another Democrat even accused White of promoting racial profiling! In reality, the opposite is true: when policies compliant with HB 2754 were installed at Austin PD, Class-C arrests declined by nearly two thirds and racial disparities lessened.

House Criminal Jurisprudence Committee Chairwoman Nicole Collier, one of a handful of Democrats who stuck with the bill, tried to help White out with questions that clarified the language. But he became frustrated and called for a vote. Confused Democrats sided with the bill critics en masse, including some who were coauthors!

And with that, a black Democrat pursuing a misguided argument killed Texas legislation which, had it been law, would have prevented Sandra Bland's arrest. Ironically, on her Twitter page, Thierry includes the following quote from Martin Luther King, Jr. in her bio: "Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will." I think, at this point, we can all agree on that!

As an aside, I bet Chairman White has learned his lesson about doing Democrats favors. The Republican committee chairman tried to accommodate them - first adding the police-union change that Nevarez had requested, then pulling it off when Thierry complained. As a result, a bill Democrats should all support was killed for his trouble.

Within about 15 minutes of the vote, the Democratic caucus understood they'd screwed up big time, with Nevarez, Garnet Coleman, Harold Dutton, Joe Moody, Nicole Collier, and others coming outside to tell supporters they were going to "fix this." By the next morning, the path was clear. Chairman White agreed to accept one amendment to repair the open-ended text related to failure to appear. Democrats agreed to come back en masse to vote "yes" because the concern had been addressed. Everyone had a path forward.

Second Kill
But it was not to be. Chairman White needed yet another vote, and could have tried to get it the following day when, under the rules, he needed a simple majority. The problem was the calendar: it was the last day that House bills could be heard on "second reading." Bringing a potentially contentious bill back up - one that had already had its day - would mean killing other legislation. With 20/20 hindsight, White should have bucked protocol and done it anyway. Instead, he waited.

So the motion to reconsider wasn't heard until the day after, when it required a 2/3 vote for suspension of the rules. Democrats asked for the bill to be brought back mid-afternoon. The speaker chose to wait until regular business was complete, which frankly I considered reasonable considering we were asking for what amounted to an extremely rare 5th reading vote!

About 6 p.m. Friday - not a late hour for this time of session - the Speaker recognized Garnet Coleman for his motion to reconsider. Initially the rules suspension seemed to pass. But opponents called for vote verification, and 20 Democrats who voted FOR the bill the first time and should have been there to vote for it again had already left the building. (see listing of absent members; excused and unexcused is a procedural difference.) The bill failed to get the 2/3 needed to suspend the rules by just two votes.

One absent Dem that we know of had legitimate reason not to be there: Donna Howard's husband had a medical emergency. But why would Austin's Eddie Rodriguez not show up? Members from Houston, San Antonio, and other drive-able locales went home early for the weekend instead of staying to vote.

If just two of them had cared more about preventing what happened to Sandra Bland than leaving work early to start their weekend, this bill would be on its way to becoming law.

Honestly, why bother seeking election to the Legislature if you're not going to show up on big votes to do your job?

It's possible an amendment vehicle will be found and HB 2754's provisions can be revived. At this point, the bill is supported by a wide majority of House members and opposed by only a few. Just 26 people voted against the bill on third reading, and 37 voted against the motion to reconsider.  So the votes are there if a vehicle is found.

It's easy to blame all this on legislative incompetence. Thierry's failure to understand the bill was the pivotal error that caused everything to melt down. Even if the line she complained about had not been fixed, the bill would have radically limited existing police power to arrest for Class C violations. And blowing a vote so important to core Democratic constituencies because members wanted to get home for Mother's Day weekend is about the lamest outcome possible. All of those absent members should hear about the issue during the next primary.

But at the end of the day, the "poison pill" strategy was promoted by the police unions. They're the behind-the-scenes force ultimately responsible for the loss, however satisfying it may seem to blame confused or absent legislators. That's certainly who I blame.

And that, my friends, is an example of how powerful interests can kill a bill opposed by only 37 out of 150 House members through confusion and misdirection. I've got to hand it to them; their strategy worked.

See related MSM coverage:
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This blog has closely covered efforts at the Texas Legislature to pass HB 2754 limiting arrests for Class C misdemeanors, but the bill died last week  thanks to Democratic incompetence. (See coverage here and here, plus Twitter commentary.) First, Democrat Shawn Thierry misunderstood the bill, driving her colleagues to vote against legislation that, had it been law at the time, would have prevented Sandra Bland's arrest, incarceration and death. Then, on a motion to reconsider after Dems recognized their mistake, the bill failed to earn a rules suspension by two votes because 20 Democratic supporters went home on Friday before their work day was finished.

Certainly, there were Democratic champions for this bipartisan legislation. Reps. Garnet Coleman, Nicole Collier, Joe Moody,  Ron Reynolds, and Senfronia Thompson all pushed hard for the measure. But they couldn't stop their colleagues from blowing the bill up.

Over the weekend, I wrote up the bizarre denouement of this process - in which legislation died that only 37 of 150 House members opposed - but have decided to withhold commentary for a few days to let my anger die down. More later.
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Texas' bail-reform legislation remains a mess and Grits has said for weeks the bills not ready for prime time during the 86th Texas Legislature. But after an amendment from the bail-bond industry was tacked on to HB 2020 (Kacal) yesterday in the Texas House by Democrat Oscar Longoria, "bail reform" has gone from a premature, ineffectual and pointless bill to an actively harmful one. (See the Texas Tribune for a quote-both-sides version of the story.)

According to our friends at the Texas Fair Defense Project:
The amendment would: 
REQUIRE money bond and disallow non-monetary bond, aka personal bond, for a huge number of people, including: 
  • People who are charged with possessing just four grams of any controlled substance;
  • People who have a history of failure to appear after being released on personal bond within the last two years. Failure to appear is not defined and could include non-intentional failure to appear. Failure to appear rates are also closely tied with socio-economic status.
  • People who are charged with any level of crime that has a victim, including any level of assault. This means that a high school kid who gets in trouble for pushing a classmate would not be able to get out of jail unless he or she had money.
Codify bail schedules, which have resulted in litigation across the state. Bail schedules mean that anybody with money can get out of jail. This is particularly bad for a bill titled the "Damon Allen Act," since the man who killed Damon Allen was released because he had the money for bail, and so could have gotten out under this bill automatically (as could anybody with money). 
HB 2020 also now has an amendment that would put a bail bondsman on the new Bail Advisory Commission that will be making recommendations for pretrial detention practices, which will ensure that there will always be people with power on the commission who want to increase reliance on money bond. This would mean that wealthy people can get out of jail while poor people have to sit in jail until they take a plea bargain (even if they're innocent). 
HB 2020 is now the complete antithesis of bail reform. It will drive up pretrial detention rates, drastically increase jail costs for counties, and force judges to rely on monetary bond over any other alternatives. 
Yesterday's bill passed on a voice vote, but third reading votes are all on the record. I suppose there's some small hope that House members will vote against the bill or peel off the amendment, and they should. But if not, here's hoping Senate Criminal Justice Chairman John Whitmire will (please!) kill the bill in the senate.

The legislation cannot be "fixed" because the federal 5th Circuit Court of Appeals has yet to define the questions the Lege must answer. In two years, the 5th Circuit will have ruled in either the Dallas or Galveston litigation and we'll know what constitutional baseline the Lege must meet. Until then, this entire endeavor is premature, and now potentially harmful.
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Lt. Gov. Dan Patrick declared HB 63 (Moody) reducing penalties for marijuana possession "dead" in the Texas Senate, and Senate Criminal Justice Chairman John Whitmire has said the bill wouldn't get a hearing in his committee, though he's backtracked on that a bit.

Grits still harbors the slightest of hopes that the Lt. Governor may change his mind. Here's why.

First, the bill is different from what he's criticizing. Patrick opposed "decriminalization" in his comments, which is what El Paso Democrat Joe Moody had proposed in his original bill.

Governor Greg Abbott, by contrast, had proposed keeping marijuana possession criminal but reducing the penalty category from a Class B to a Class C misdemeanor. His reasoning had nothing to do with legalization: Rather, he was concerned about counties wasting money incarcerating pot smokers and paying for their lawyers if they're indigent.

Judging from his comments, when the Lite Guv made them, he was unaware that language matching the governor's proposal had been substituted on the House floor for Moody's decriminalization bill. If that's true, maybe he won't be as opposed once it's clear (as it should be by now) that "decriminalization" is not what the House passed.

The second reason I remain hopeful is that Republicans at the capitol are justifiably worried about the 2020 election cycle, and killing HB 63 is bad politics.

Democrats made substantial gains in the Texas House in 2018. If they win nine (9) more seats in 2020, which is not remotely outside the realm of possibility, given prevailing national-election dynamics, Democrats will select the next Speaker of the House, just in time for redistricting in 2021.

Which brings us to marijuana: Reducing marijuana penalties is a popular political issue, supported by 62 percent of Texas Republicans and 79 percent of Texas Democrats, according to a Texas Tribune poll. That makes it a wedge issue for Democrats (not to mention Libertarians, who may swing elections at the margins by siphoning off Republican votes).

Republicans in swing districts, by Grits' calculations, supported HB 63 by a 2-1 margin. They know they have to run to the center to win a general-election contest, and most of them think this hill isn't worth dying on.

For that matter, the state GOP party platform endorsed reducing marijuana penalties to a civil infraction with a maximum $100 fine. There's an extent to which Patrick's stance is out of step not just with the electorate, but also with his own party.

The 2020 election will be dominated by a national referendum on Donald Trump, and the fates of Republicans in swing districts may be decided by the extent to which candidates can convince new voters to split tickets.

Marijuana reform is a popular, readily understood issue with which Rs in those swing districts could distinguish themselves, if the Legislature were to pass HB 63. But if the Lt. Governor's hard "no" stands, a yes vote on a dead bill won't help them.  What other wedge-issue legislation is being passed to help R voters withstand a "blue wave"? This is the highest profile-example I can think of, by far.

Handing a popular issue to Democrats with which 62 percent of Republicans agree during an election cycle with so many swing districts in play makes no sense. The smarter play is to steer into the skid: Pass HB 63 and allow Republicans in swing districts run on less government, lower costs, and more freedom. Take the issue away from Democrats and make it a wedge issue with their base.

So there's my sliver of hope: 1) Dan Patrick's public statements appear to leave open options that don't endorse "decriminalization," including the governor's preferred approach (which is what's actually in the bill that came over to the senate). And 2) Republicans need to bolster their state reps in swing districts if they want to control the Texas House during redistricting next year.
Or, HB 63 could just be screwed. That's more likely, but hope springs eternal.
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