Friday, April 17, 2015

Texas House moving harm reduction measures

There were a couple of positive developments on the harm reduction front in the Texas House this week involving bills your correspondent supported in committee:

Good Samaritan bill moves to Senate
On Tuesday, the lower chamber approved HB 225 creating a defense to prosecution when someone calls 911 in response to an overdose, stays at the scene, and cooperates with police - so called "Good Samaritan" legislation. It passed by a 140-4 margin. This is an important sleeper issue, as "overdosing on medications and illicit drugs has been a bigger killer in the U.S. than car crashes or gun deaths at more than 120 per day," according to coverage of the bill from Texas Public Radio. The legislation also authorizes first responders and folks with prescriptions to use naloxone, an opiod antagonist that can save lives during emergency situations but which itself is non-addictive and causes no known side effects. The bill is now in the Senate where its companion was referred to the Criminal Justice Committee.

Unanimous committee support for needle exchange bill
After some initial confusion and a motion to reconsider, CSHB 65 authorizing privately funded and operated needle exchange pilots in several counties passed out of the County Affairs Committee yesterday on a 9-0 vote. See supportive coverage of the bill out of San Antonio and an earlier Grits analysis. HB 65 had seemingly stalled before conservatives threw their support behind language which eliminated all public funding and empowered counties and hospital districts only to authorize other organizations to operate needle exchanges - county government won't operate the programs. Volunteers with authorized needle exchanges will be exempt from prosecution under the paraphernalia laws and the bill includes some reporting requirements for participating organizations on the back end. Indiana of all places, recently suspended that state's ban on needle exchanges in response to a public health crisis.

DPS may promote surcharge amnesty by this fall, and other stories

Here are a few items which merit Grits readers' attention even if I haven't had time to adumbrate them in individual blog posts:
  • The Dallas District Attorney has released a list of 192 officers who the DA's office won't sponsor as witnesses because of past mendacity or other credibility problems. 
  • An error by city utility employees left prison units in Amarillo without water pressure, forcing them to bring in tanker trucks for drinking water.
  • The Texas Senate this week approved a bill by Sen. John Whitmire eliminating criminal penalties for truancy.
  • The Senate Transportation Committee voted to eliminate red light cameras.
  • Bill Martin of the Baker Institute at Rice University says the political winds are shifting in Texas on medical marijuana. See also an account of Rep. David Simpson defending his legalize-it bill in his home district, and an article about GOP support for Rep. Joe Moody's bill creating civil penalties for low-level pot possession.
  • Here's a religious view on why solitary confinement reform is necessary.
  • Setting aside for a moment the vexed issue of police shootings, here's an interesting discussion of the appropriate burden police departments should bear in civil court when officers inadvertently harm someone on the job under more mundane circumstances.
  • Read a compelling and troublesome reentry story out of Dallas.
  • Singer John Legend was in town Thursday to visit with legislators and hold a press conference on criminal justice reform with my employers at the Texas Criminal Justice Coalition. See coverage here, here, here, and here, for example.
  • Regrettably, Grits couldn't attend the press conference with Mr. Legend, spending my afternoon instead in a meeting involving indigence and the Driver Responsibility surcharge. Nothing certain yet, but DPS told us they're now considering offering another Amnesty period for the surcharge as soon as this fall. Not long ago, they were telling the Lege they had no plans for another Amnesty, so that's welcome news.

Thursday, April 16, 2015

Revenge porn, online solicitation bills clear Senate despite First Amendment problems

The Texas Legislature seems intent on keeping Houston attorney Mark Bennett busy beating down unconstitutional statutes in an ongoing game of whack-a-mole. A pair of bills have passed the Texas Senate and been sent to the House which, if passed, will likely immediately fall within Bennett's crosshairs (or some other attorney challenging on First Amendment grounds).

Sen. Joan Huffman's SB 344 attempts to reinstate Texas' online solicitation of a minor statute, which the Court of Criminal Appeals unanimously struck down in 2013. But Huffman didn't adopt all the changes Bennett insists are necessary to prevent it from being attacked again on First Amendment grounds. Bennett has praised Huffman's bill for being "much closer to constitutional than the statute as it exists now." But he also laid out in the same post exactly how he'll challenge the statute as proposed and what changes would be necessary to make it constitutional, so if the House doesn't revise it they'll have nobody but themselves to blame. The companion bill, HB 861 by Tony Dale, has cleared committee and is waiting for the Calendars Committee to set it for a floor vote, at which time Huffman's bill will be substituted in and finally passed.

Meanwhile, Sen. Sylvia Garcia's "revenge porn" bill, SB 1135, also cleared the Senate this week, though its companions are not so far along. The Dallas Morning News coverage referenced none of the constitutional concerns, but the bill in its present form almost certainly won't pass First Amendment muster. Analyzing the bill earlier this week, Bennett explained that:
Since the speech restricted does not fall into a recognized category of unprotected speech, under current Supreme Court (and Court of Criminal Appeals) jurisprudence this statute does not pass First Amendment muster. Proponents of this law would have to convince the Supreme Court to recognize a new category of historically unprotected speech that covers most of the speech forbidden by the statute. That’s long odds.
The bills to reinstate the improper photography statute, by contrast, don't appear to be moving.

Observing the Lege pass laws one can already tell are unconstitutional is like watching a slow moving train wreck. You can see a crash is coming well in advance but it seemingly can't be stopped. They pass these laws now then a couple of years later the courts declare them unconstitutional and the state has to figure out what to do with everybody who was convicted under invalid statutes. (Rep. Alonzo's bill on appointment of habeas counsel aims to address that topic.) We've already seen this movie and Denzel Washington doesn't show up at the end to save the train from derailment. It just flies off the tracks.

Wednesday, April 15, 2015

Lege poised to criminalize violations of internet terms of service contracts

I don't know if this will be the first new crime created by the Texas Legislature this session (I doubt it), but it's surely the most far reaching yet: SB 345 by Huffman, the companion to which was criticized last month by Grits, is poised to pass the Texas Legislature this week and head to the governor's desk. HB 896, its companion, has been placed on Thursday's House General State calendar. But SB 345 is over from the Senate, so it will be substituted in and finally passed if the bill is not defeated on the House floor.

The portion of the bill I don't like would criminalize violations of terms of service contracts between internet service providers and their customers, making law enforcement the enforcer of contracts for wifi the way they've problematically been in the past for payday lenders and check cashing firms. The House committee substitute altered the language slightly but it still contains the problematic provision - (b-1)(2)(B)(ii), see the text - criminalizing violations of "a contractual agreement." [N.b., the fix is either to strike (b-1)(2)(B)(ii) or change the "or" to an "and" in the previous (i).]

Using criminal law to enforce private consumer contracts amounts to corporate welfare and terrible public policy. If the Texas House doesn't amend or reject this bill - and so far it seems to be sailing through the process - then Gov. Greg Abbott should veto it.

See prior Grits' analysis of this bad idea.

UPDATE: Freshman Rep. Matt Rinaldi amended the bill on the floor to make contract violations a crime only if they involve an effort "to defraud or harm another or to alter, damage, or delete property," which will at least keep this law from being used against people logging onto somebody else's wifi.  Grits doesn't oppose laws to combat hacking, I just don't want to authorize cops to become generalized enforcers of consumer contracts. ALSO: Grits had expected the House to substitute in the companion, which was already over from the Senate, but instead they just passed HB 896, with the SB still lingering in House committee. So this bill isn't headed to the governor yet, even though versions of it have now passed both chambers.

Habeas matters: Appointing counsel, codifying Robbins

The Texas House Criminal Jurisprudence Committee today will hear a pair of bills related to habeas corpus writs that relate to topics frequently covered on this blog during the years I worked for the Innocence Project of Texas:

Habeas writs and appointed counsel
HB 1346 by Alonzo provides that indigent defendants may be appointed counsel to file a habeas corpus writ when prosecutors agree in court that a defendant who's already been sentenced "is not guilty, is guilty of only a lesser offense, or was convicted or sentenced under a law that has been found unconstitutional by the court of criminal appeals or the United States Supreme Court."

This would reach cases like the folks put in limbo when Texas courts overturned statutes on improper photography and online solicitation of a minor, but not necessarily episodes like the Jonathon Salvador fiasco, where it's still not clear everyone entitled to relief was appointed an attorney or even notified about crime-lab misconduct that may have affected their case.

This bill doesn't go nearly as far as the statewide public defender for habeas writs suggested last year by Rick Perry's former general counsel. Indeed, it's a far cry, even, from suggestions in the "white paper" produced by the Court of Criminal Appeals Criminal Justice Integrity Unit and the Forensic Science Commission. But at least the legislation acknowledges a problem and takes tentative first steps to address it. Companion legislation, SB 662 by Rodriguez, was heard yesterday and voted favorably out of the Senate Criminal Justice Committee.

Junk science writ includes bad scientists, not just bad science
HB 3724 by Herrero is an excellent bill which would codify the results of Ex Parte Robbins interpreting Texas' new junk science writ, clarifying the debate over legislative intent at the heart of the 5-4 judicial split in that pivotal case.

In Robbins, the court authorized an inclusive reading of the statute to say the defendant was entitled to relief when the state's expert later corrected her opinion after the conviction to concur with the defense. The majority decided the statute was necessary (and was intended) not just to cover bad science but also bad scientists.

Four members of the Court of Criminal Appeals would only have allowed use of the junk science writ in areas like arson where the entire field has advanced and previously false propositions were testified to as truth in court by investigators because of their training. The majority, though, cited legislative history to say the writ should also cover cases where a forensic expert was simply wrong and later self-corrected.

Having some personal knowledge on the question, Grits agrees that the legislative history supports the majority ruling in Robbins. But the margin supporting that interpretation on the court is razor thin and almost certainly subject to future attack without legislative clarification. (Three of the five votes in the majority left the bench in January.) So it makes a lot of sense for Chairman Herrero to go ahead and say once and for all exactly what the Legislature meant so the courts don't misinterpret later.

This sort of back and forth between the Legislature and the courts has been repeatedly necessary over the last decade and a half in Texas post-conviction law. You saw it in statutes authorizing DNA testing. The CCA said DNA couldn't exonerate someone. The Lege said "yes it can, do the tests." Then prosecutors and courts would find excuses not to grant testing. So the Lege came back to strengthen the law until, eventually, prosecutors had few grounds left available to oppose DNA testing under Ch. 64 of the Code of Criminal Procedure.

Herrero's bill would similarly clarify the statute so this is no longer a point of contention for the court, preventing tremendous uncertainty and innumerable future appellate controversies. From the perspective of someone wrongfully convicted, whether they were incarcerated because of "bad science" or merely a "bad scientist" is a distinction without a difference.

Tuesday, April 14, 2015

Begging for crumbs on the Driver Responsibility surcharge

Here's what's bugging Grits today: This morning I got up first thing to testify on behalf of the Texas Criminal Justice Coalition in favor of a good bill tweaking procedures for indigent defendants to have their Driver Responsibility surcharges waived by the courts. The committee was receptive and Chairman Larry Phillips even indicated he wanted to pursue further relief to the extent it might fit within the caption of the bill, suggesting a stakeholders meeting that he said he'd attend. Despite the chairman's much-appreciated interest, however, it's hard to avoid the feeling that we're begging for crumbs and being roundly ignored on the issue by the folks who matter most: Legislative budget writers.

I know Judge Edna Staudt feels the same way. The Williamson County JP who's been one of the fiercest opponents of the surcharge testified "on" rather than "for" the reform bill because she didn't think it did enough. Personally, I'm less inclined to allow the perfect to become the enemy of the good. But I understand the impulse to reject less-than-half-a-loaf measures.

Everyone who cares has been told at the Texas Legislature that abolition of the Driver Responsibility surcharge is off the table in 2015 because leadership "can't find the money." To get rid of the program, they'd have to replace the money that goes to the general fund as well as cover the amount that goes to trauma hospitals. But even though there's lots of extra money available, nobody wants to spend it on this.

For the next biennium it would take up to $230 million to abolish the surcharge entirely, if you accept (and we must) this brand of budgetary thinking. For context, keep in mind that $230 million is just a tad more than 1/10 of one percent of the $209.8 billion all-funds state budget.

By contrast, we've been told to expect $4.6 billion in tax cuts, or twenty times what it would take to eliminate the Driver Responsibility Program. In other words, the Lege could eliminate the surcharge entirely and still give 95% of the tax cuts being proposed! Further, as R.G. Ratcliffe reported, "The proposed House budget leaves $2 billion unspent from general revenue and $11.1 billion from the Rainy Day Fund. The budget also includes $4 billion in retained dedicated funds that can be used to certify the budget as balanced." And that doesn't even get to hundreds of millions in new border security spending.

Combining unspent funds, "rainy day" funds, and unspent "dedicated" funds, the House budget essentially leaves $17 billion in tax dollars lying around in the couch cushions, with the Senate budget differing more in details than totals.

So what are we to believe when we see those numbers and yet legislators simultaneously plead poverty when it comes to abolishing the surcharge? "We couldn't find the money." It's just not credible. Yes, $230 million is a lot of cash. But Texas is a large, wealthy state with an enormous budget surplus. We can afford to pay for trauma hospitals in other ways.

If legislators cared as much about the 2 million Texans who've lost their licenses under the surcharge as they do the beneficiaries of the tax cuts, this program would already be history. It's a question of values and priorities, at this point, not really a lack of resources.

RELATED: Bills chip away at Driver Responsibility surcharge catastrophe.

UPDATE: The companion legislation to Sylvester Turner bill I was testifying for, SB 1056 by Hinojosa, passed out of the Senate Transportation Committee on Monday and has been placed on Thursday's Intent Calendar.

Sunday, April 12, 2015

Body cams, raise-the-age, overdose prevention, and other weekend links

Grits was ridiculously busy last week, so blogging was light. Here are several items which merit readers' attention even if they didn't make it into independent posts.
  • An editorial from the SA Express-News wondered whether data on the effectiveness (or lack thereof) of the DPS border surge are "being purposely withheld because they will hurt the case for this border surge?" Grits wonders, "Surely that's a rhetorical question?" My bet: Those details will be released as soon as it's too late for them to affect the Legislature's border-related budget debates. R.G. Ratcliffe at Burka Blog has been all over this issue lately.
  • The Texas Observer had a good article on the status of legislation related to body cameras. Here's more on the subject from the Texas Tribune, the Dallas Observer, the Dallas Morning News, and the Austin Statesman
  • The editorial board at the Waco Tribune-Herald made the case for raising the age of criminal culpability from 17 to 18.
  • "The CDC estimates that 120 Americans die from drug overdoses every day," according to an NPR story on Friday. The coverage was timely with HB 225 by Guillen up for a vote on the House floor on Monday, a bill authorizing naloxone use in response to opiate overdoses and creating a defense for the person who called 911. The bill passed out of committee with no public opposition. See prior Grits coverage and the House Research Organization report (pdf, p. 21) on the bill.
  • This is a decent column in the Fort Worth Star-Telegram on why ignition interlocks shouldn't be required of every driver convicted of DWI. I agree with that position, but the American Beverage Institute isn't exactly the best messenger.
  • Philip Hilder, an attorney and member of Houston's toothless Independent Police Oversight Board, has a guest column arguing that Houston PD should reveal details about its use of Stingrays and body cameras.
  • Now that Texas prison weddings have resumed, here's a story about one of the few people approved so far to officiate them.
  • There's been little detailed coverage of the recent hunger strike at a private immigration detention facility in Karnes County, but Candice Bernd at Truthout has a lengthy account.
  • Here's a link to the end-of-session deadlines for bills to pass the 84th Texas Legislature. April is the Month of Hope under the pink dome when all things are still possible. Come May, bills begin to die like infantrymen at Gettysburg.

Saturday, April 11, 2015

AT&T: Historical cell-phone location data provides 'detailed and intimate portrayal of the targeted person’s daily habits and work and leisure routines'

At a hearing Wednesday evening on HB 2263 by Rep. Bryan Hughes requiring warrants for the government to access personal location data from cell phone companies, cops from Dallas and Houston testified that historical information should be subject to a lower standard than a Fourth Amendment probable cause warrant because it's less accurate than real-time tracking. The argument is that you can only tell which cell tower someone connected to, further narrowed by which third of the tower's range the signal came through. They depicted the scope of a cell tower's expanse as up to ten miles, and in rural areas I suppose that could be true. But these were Dallas and Houston cops and, as a factual matter, coming from those urban jurisdictions that's some pretty weak tea.

Here's how AT&T described the accuracy of historical cell phone location data in an amicus brief on the issue in November 2014:
The precision of this location information varies according to the array of the towers and technology employed. As the density of the cell towers increases (decreasing the area covered by any particular tower), the precision of the CSLI increases correspondingly. Rural or sparsely populated areas generally have fewer cell towers, each serving a larger territory. In more densely populated areas, towers are much closer together and serve smaller areas, generating more specific location information. As customers demand more bandwidth to support smartphones, video services, and other high-volume Internet access, service providers are increasing the density of cell towers, further shrinking the size of particular cells. Service providers are also increasingly boosting their network coverage through small cells known as “microcells” or “femtocells” that may cover an area as small as a single floor of a building or an individual house.
Cellular communications technology may also generate other, more precise forms of location information. For example, some mobile devices, such as smartphones, are equipped with GPS technology which determines the device’s exact location based on signals received by the phone from a network of satellites.  In addition, because mobile devices are often in contact with more than one cell tower at a time, it is often possible to  locate the device through triangulation – i.e., determining the point of overlap among the areas covered by each of the multiple towers within range of a particular device. ...
CSLI at times may provide more sensitive and extensive personal information than the car tracking information at issue in Jones [ed. note: a SCOTUS decision declaring use of GPS trackers is a search]. Users typically keep their mobile devices with them during the entire day, potentially providing a much more extensive and continuous record of an individual’s movements and living patterns than that provided by tracking a vehicle; CSLI, therefore, is not limited to the largely public road system or to when the device user is in a vehicle. That difference, in turn, may enable officials to use historical and prospective CSLI to construct a more detailed and intimate portrayal of the targeted person’s daily habits and work and leisure routines – including activities related to the home.
If "historical data is inaccurate" is the best argument they've got (all law enforcement witnesses granted that real-time tracking should require a warrant), this bill with its 97 House authors ought to do fine!

The whole AT&T brief (pdf) is quite a remarkable document for those interested in the topic. It staked out the corporate arguments in a systematic and compelling way for installing a probable-cause warrant requirement for government to access this detailed personal information.

MORE: It's worth noting both AT&T and Verizon registered in favor of Hughes' bill at the hearing.

Thursday, April 09, 2015

'Treat it like tomatoes' ... an ode for David Simpson

In honor of Longview state Rep. David Simpson and his bill to legalize marijuana for adults, treating it like tomatoes or jalapeños ...

Treat it like tomatoes

Treat it like tomatoes
Mr. Simpson said
And all around the capitol
Wags laughed and shook their heads

Stoner jokes filled every room
Wry quips at his expense
And though he took it with aplomb
Some thought he’d lost his sense

But I’m here today to tell you
Simpson’s crazy like a fox
And small minds laugh too quickly
When men think outside the box

‘Cause here’s the disturbing thing
That keeps the jokers up at night:
The troubling deep-down knowledge
That David Simpson’s right

Not about everything, it’s true
Yes, God made marijuana, too
But He also made rattlesnake venom
And nobody wants any of that in ‘em

Still, when you get down to it
Pot is safer than alcohol
And society regulates booze
Without all the hype and vitriol

Without armed crooks controlling the cash
Without using residential housing to stash
Drugs guns and money from robbers who crash
And without the corruption and violence and graft

Without spending millions on jails and courts
For defendants who no one fears
Without funding murderous Mexican thugs
Without so much heartache and so many tears

Texas spends a billion border dollars to pretend to stop cartels
But this bill slashes their revenue
And does more to shut them down than a line
Of troopers and guardsmen could ever do

In Colorado they “tax and regulate”
But conservatives don’t like either one
So this bill gets rid of both and
Lets the free market get it done

If you’re going to legalize
Then make the taxes low
So beer drinkers will switch to pot
And Texas farmers have incentive to grow

For if it’s true (and it is) that pot
Is safer than alcohol
Then whenever a drinker switches to smoke
It’s measurably safer for all

So tell me, friends, who’s the real joke?
Supporters of the status quo, or
The guy who wants to solve the problem
By letting Texans toke?

Texas House committee debates pot policy

Grits just finished a long night in a House Criminal Jurisprudence Committee hearing on drug sentencing policy (among other things), culminating in what Chairmen Harold Dutton and Todd Hunter took to calling a "joint" session hearing several marijuana bills simultaneously. Rep. Joe Moody's HB 507 creating a civil penalty for marijuana is the bill most likely to pass and the one supported by the mainstream marijuana lobby (there's three words you never thought you'd see together!).

But nearly all the drama this evening centered around Rep. David Simpson's HB 2165 which would end marijuana prohibition for Texans 21 and over. I was pleased and proud that Ana Correa, Executive Director of the Texas Criminal Justice Coalition, for whom your correspondent is working as a consultant, asked me to testify in favor of Simpson's bill. I told the committee that, although nobody expects the bill to pass, when a legislator stands up to speak the truth on these topics, we'd stand with him. Polling shows the public is way ahead of the politicians on this issue.

Moody has a great bill for which your correspondent also testified. HB 507 will keep 65-70,000 people per year from being arrested and taken to jail. Instead, they'd receive a ticket that's technically a civil, not a criminal offense. Why is that important? Because there are mandatory federal collateral consequences that come with a state drug conviction (starting with losing one's driver's license and eligibility for student loans), so making it a civil penalty provides tremendous relief, mitigating long-term harms from an episode of youthful misbehavior. That would be huge.

But like I said, all the drama at the hearing came from Simpson's bill. It's amazing how the medical and legalize-it memes have morphed, and Simpson promotes that joining more than anybody. For many years, I've resisted that trend, hoping to segregate "criminal justice" from "medical" issues in public policy arguments. But it's no longer possible to stage a public discussion of pot policy of any magnitude in Texas that distinguishes the two, whatever one's personal, mental categorizations.

Rep. David Simpson's HB 2165, the legalize-it bill that stole Rep. Moody's rightful spotlight this evening wasn't ever a serious proposal in the sense that it had a snowball's chance of passing in 2015. Tonight's hearing didn't change that. But in another sense, it's more serious than any other marijuana policy bill filed this session because it dares to comment on the Emperor's naked visage.

I'm sure there will be tons of MSM coverage of the event tomorrow, and I'll update this post with links en la mañana. 

MORE: Less coverage than I expected, though I enjoyed the next-day Dallas News headline, "Texas Young Republicans support decriminalizing marijuana." Other, less sanguine MSM coverage from the hearing included:

Nearly 2/3 of Texas House supports warrants for cell phone location data

When state Rep. Bryan Hughes laid out HB 2663 requiring the government to obtain a warrant to get location data from cell phone carriers in the House Criminal Jurisprudence Committee tonight, he announced the bill had 97 joint and coauthors! Congrats to Hughes and the volunteer team at the Texas Electronic Privacy Coalition who helped put together this broad, bipartisan coalition.

Wednesday, April 08, 2015

This is what less government looks like: Big budget savings from reduced criminal penalties

Bills reducing criminal penalties would save big bucks, according to state estimates.  As the House Criminal Jurisprudence Committee prepares to hear several bills reducing criminal penalties today, the Legislative Budget Board issued fiscal notes estimating cost savings to the state:
  • HB 254 by Thompson reducing penalties for possession of less than a gram of a controlled substance: $105.2 million.
  • HB 3326 by Thompson reducing penalties for low-level drug possession and prostitution along with adjusting theft thresholds for inflation: $163.8 million.
  • HB 2165 by Simpson legalizing pot and treating it like tomatoes: $71.2 million to the state, much more to counties and cities.
  • HB 507 by Moody reducing possession of less than an ounce of pot from a Class B misdemeanor to a civil penalty: $1.9 million, plus a net positive to counties.
To fantasize for a moment, make Grits Philosopher King and here's my suggestion: Pass HB 3326 and HB 2165, save $235 million, and use the savings to eliminate the Driver Responsibility Program. That almost certainly won't happen, but it's a function of a failure of political will, not because it's impossible to find cuts that could pay for eliminating a failed program. C'est la vie.

N.b., the fiscal note on Simpson's legalize-it bill only includes cost reductions but no sales tax revenues from the inevitable increased economic activity which would come from opening up a new domestic agricultural market. The real benefit to the state budget would be much higher.

There's really quite an impressive array of bills suggesting reduced criminal penalties (and several other topics, including warrants for the government to access cell-phone location data) on today's House Criminal Jurisprudence Committee agenda, check them out.

Bills chip away at Driver Responsibility surcharge catastrophe

Grits is swamped so posting will be light for a couple of days, but I wanted to jump on the blog to mention two bills your correspondent is supporting this week related to the ignominious Driver Responsibility surcharge.

First, yesterday in the Texas House Homeland Security and Public Safety Committee, Rep. Senfronia Thompson offered up HB 2671, an excellent bill which would leave the surcharge intact (since legislative budget writers can't seem to pull themselves away from the money teat) and instead eliminate drivers license suspensions as an enforcement mechanism. My testimony mostly batted cleanup and Rebecca Bernhardt from the Texas Fair Defense Project performed the heavy hitting. See the hearing video here; it's the second bill up at the 3:35 mark.) She did a great job and rather than iterate her points here, I'll encourage those interested to watch the short but informative hearing.

Regular readers know the drivers license suspension aspect of the surcharge is a huge problem: Around 2 million people out of Texas' 15+ million drivers have had their licenses revoked over the surcharge, with 1.3 million or so continuing to drive without a license. Indeed, when the Justice Department initially refused to approve Texas' voter ID statute, the main reason was the number of people who had valid ID when they registered to vote but did not now. Most of those folks lost their licenses because of nonpayment of the surcharge.

John Hawkins of the Texas Hospital Association testified against the bill because, he said, 75 percent of surcharge payments come after license revocation, which is a shocking figure, if true. That's further evidence that this program has utterly and profoundly failed at every goal but revenue collection, and even on that it has far underperformed expectations.

This committee has significantly turned over, including a new chair, Larry Phillips, since they studied the issue in an interim charge last year. But I was pleased to learn that several of them already understood the surcharge is a broken system and a significant problem. If we can't abolish the surcharge outright, HB 2671 would be a big get.

Second, this morning I'm headed to an 8 a.m. hearing at the Senate Transportation Committee which will hear Sen. Juan Hinojosa's SB 1056, which would apply the indigence finding for appointed counsel to what's presently a separate, post-conviction indigence finding to waive the surcharge, meaning that if you're poor enough to have a lawyer appointed, your surcharges would be waived.

The Lege in years past approved two versions of indigence programs for the surcharge: One created by rule at the Department of Public Safety and one set in the courts which is less widely accessed by defendants. Conflating the two indigence determinations, as Hinojosa's bill would do, would contribute to judicial economy (why make two separate indigence determinations in the same case?) and allow more indigent defendants to have their surcharges waived.

Who knows what chances these bills have of passage? It'll be a week or more before we know if they'll even make it out of committee. But at least the legislation is helping keep the issue on the state agenda after Rep. Larry Gonzales decided not to seek abolition of the program this year. His reason was that budget writers couldn't find $230 million to fill the revenue gap, despite a House budget that leaves $17 billion unspent and drops a cool half billion on superfluous border security. Politics is the art of the possible, it's been said, and Gonzales determined abolition was not. (Sen. Rodney Ellis filed SB 93 to abolish the surcharge, but it's yet to receive a hearing.) Barring abolition, it's only possible to chip away at the problem.

Hinojosa's and Thompson's bills would help folks going forward but not those already mired in unpaid surcharges. As I told the House committee yesterday and will iterate in the Senate this morning, on one of these bills (or some other related piece of legislation), the Lege should tack on an amendment requiring the Department of Public Safety to hold another Amnesty event, and this time to advertise it more heavily so more people will learn about it and access it. Even if the surcharge were abolished tomorrow, there'd be a lot of cleanup work to undo the monumental damage this misbegotten program has caused.

Monday, April 06, 2015

TX Lege committee agendas packed with criminal justice reform bills

There's really kind of an amazing array of criminal-justice reform bills and a host of other legislation related to the topics covered on this blog up in committee this week at the Texas Legislature. I've no time to adumbrate them all (perhaps a few, as the week progresses), but for now just check out these agendas, especially CrimJur in the House which may well end up being an all-nighter:
  • Senate Criminal Justice - Tuesday. Highlights: expansion of hazing offense, post-conviction DNA testing, civil commitment of sex offenders, licensing of forensic analysts, plus repeats on body cameras and asset forfeiture.
  • House Homeland Security - Tuesday. Highlights: Dueling bills on DPS collection of driver fingerprints, data retention for automated license plate readers.
  • House Criminal Jurisprudence - Wednesday. Highlights: requiring warrants for cell-phone location data, penalty reductions for various nonviolent offenses (including civil penalties for pot), and for the attorneys in the crowd, there's a bill eliminating "the Rule" barring witnesses from hearing other witnesses testimony at trial, but only if they're detectives.
  • House Juvenile Justice and Family Issues - Wednesday.  Nothing earth shattering but an array of interesting topics.
  • House Corrections - Thursday. Probation, nondisclosure, and mental health diversion.
  • House Emerging Law Enforcement Issues - Thursday. Highlights: body cameras, recording custodial interrogations, regulating automated license plate readers.
There is lots more stuff on those packed agendas so give them a look. What a week!

Sunday, April 05, 2015

On 'Cops in Lab Coats,' the pitfalls of basing police practices on Jonah Hill, Wallace Jefferson for SCOTUS(?) and other stories

Before the day's family festivities begin, here are a few items which deserve Grits readers' attention but haven't made it into independent posts:

The case for raising the age of criminal culpability based on Pearland ISD cops mimicking Jonah Hill movies
Dan Solomon at Texas Monthly described an 8-month undercover sting at Pearland ISD and the episode's idiotic if inescapable similarities to the 21 Jump Street franchise, comparisons to which consumed national media coverage about the event. Playing the killjoy, Solomon framed the issue in terms of Texas' "raise the age" debate, declaring: "It’s frightening that a high school junior who hasn’t committed a violent crime (none of the charges in the sting are for violent crimes), might find himself or herself facing time in an adult facility designed to imprison violent criminals. And that prospect is only thrown into relief when we’re all laughing about Channing Tatum and Jonah Hill."

No room at the inn for civil commitment offenders
As the state struggles to find housing for civilly committed sex offenders, the Texas Senate Criminal Justice Committee prepares to hear legislation on Tuesday, elaborated in detail by guest blogger Nancy Bunin in this Grits post, to revamp the program. Jefferson County Commissioners blocked using a facility in Beaumont. Even the private prison companies don't want them. The Geo Group "

Casey: Wallace Jefferson for SCOTUS
Long-time columnist Rick Casey poked his head up out of retirement to suggest a potential dark horse nominee for US Supreme Court, should there be another opening: Former Texas Supreme Court Chief Justice Wallace Jefferson, who Casey rightly speculated is somebody who could actually be confirmed by the Republican-controlled US Senate. Rick Perry has already named Jefferson twice to Texas' high civil court, first as a Texas Supreme Court Justice, then as its Chief Justice. So it's intriguing to imagine that Barack Obama might consider a high-profile Rick Perry appointee for SCOTUS. Indeed, while a longshot, it's not entirely outside the realm of possibility that Jefferson could ascend to the court with either man as president. Where do I get my "Wallace Jefferson for SCOTUS" bumper sticker?

Justice Kennedy: Corrections system misunderstood, broken
Speaking of SCOTUS, when asked this week about prison overcrowding while testifying before a congressional budget subcommittee, Justice Anthony Kennedy took the opportunity to expound on prison policy, declaring, “The corrections system is one of the most overlooked, misunderstood institutions we have in our entire government.” “In many respects, I think it’s broken,” lamented the 78-year old Reagan appointee.

'Cops in Lab Coats'
According to this press release, "University of Houston Law Center (UHLC) Professor Sandra Guerra Thompson argues in her released new book. 'Cops in Lab Coats, Curbing Wrongful Convictions through Independent Forensic Laboratories' is published by Carolina Academic Press."

Of glitter bombs and bathroom blues
The Texas Tribune provides balanced coverage of an unbalanced issue: Legislation to criminalize using the wrong restroom, honing in on Rep. Debbie Riddle's legislation highlighted by Grits back in February. The story doesn't mention it, but there's little doubt these bills were the proximate cause of the representatives' district office receiving a "glitter bomb" last month. Her bills have been referred to the State Affairs Committee which is chaired by Byron Cook, a notably open minded Republican when it comes to civil rights for gay people. Grits continues to believe that, if Riddle's bill criminalizing business owners who let someone use the "wrong" restroom were to pass, it would foster the unintended but entirely predictable consequence of rapidly promoting unisex bathrooms to avoid civil or criminal liability. This one's a "be careful what you ask for" moment. I'm not sure everybody has thought this through.

More arrests over faked police training
Arrests warrants for the Hill County Sheriff and three of his employees were issued recently alleging they falsified training records based on an investigation by the Texas Commission on Law Enforcement, adding to a growing list. Grits' belief is that these cases argue for the sort of independent prosecution of police misconduct (by the AG or a special prosecutor) discussed in Reps. Dutton's and Reynold's bills recently at the Lege. Local prosecutors have strong disincentives not to prosecute cases where faked training may endanger the credentials of large numbers of officers in a department - the same folks who are witnesses in all their cases and who they work with every day. In cases like these, it makes more sense to separate that function from local politics.

Friday, April 03, 2015

New Austin PD policy takes secrecy about police misconduct to next level

The Austin Police Department has decided to make secret more police disciplinary cases by ordering training-only punishments instead of suspensions, which under law make a summary of the event a public record - the only window into police misconduct the public has in cities that operate under the state civil service code for police and firefighters (Ch. 143 of the Local Government Code).

The problem is LGC 143.089(g), a secrecy provision added to state law decades after most cities (today, a few more than 70) adopted the civil service code in the the '40s and '50s. Of major Texas cities, Dallas and El Paso never voted to adopt Ch. 143, but many other large and mid-sized jurisdictions did back in the day.

In 1989, at the behest of the big Texas police unions, the then-Democratic controlled Legislature changed the civil service law to create a secret personnel file, exempting it from what was then called the Texas Open Records Act. The result created an odd bifurcation where these 70 or so departments operated under different transparency rules from the other 2,500+ law enforcement agencies in the state.

For example, say an Austin PD officer and a Travis County Sheriff's deputy are each disciplined and punished with a one-day suspension. At Austin PD, where LGC 143.089(g) applies, the public would get to see at most a curt one or two paragraph summation of the offense and punishment with little detail or elaboration. There are exceptions, but that's the typical case. By contrast, at the Travis County Sheriff and other jurisdictions whose personnel files are not covered by Ch. 143, essentially the whole investigative file will be available after the disciplinary process is complete.

The difference from a transparency perspective is night and day.

Change the above example so that the punishment is retraining, and nothing at all - not a word nor syllable - is available about the incident from APD. At the Travis County Sheriff, by contrast, virtually everything would be public ("virtually" because there are other privacy, employment, or attorney-client privilege exceptions which may apply to pieces of it).

So APD wants to take suspension-level misconduct - the only type of police misconduct about which even a scintilla of public information is available - and redefine the punishment so that everything is secret. Thanks for nothing.

Why, you might ask, can't Austin PD suspend an officer for a day and require retraining? The only good reason I can think of is, if they did it that way they couldn't place records about the misconduct in the closed personnel file.

Make me Philosopher King and I'd say let the chief punish his officers any way he wants short of flogging, but the Lege should amend Ch. 143 to strike 143.089(g) so that all of it is a public record, just like at the overwhelming majority of Texas law enforcement agencies. It won't happen this session, but it needs to happen.

Thursday, April 02, 2015

'Raise the Age' bills heard in Texas House

The Texas House Juvenile Justice and Family Matters Committee yesterday heard three bills proposing to raise the age at which youth can be criminally charged as adults from 17 to 18 years old. See:
To watch the hearing, go here; it begins around the 18-minute mark.

RELATED: Pragmatic arguments the strongest for 'raise the age' proposal

Wednesday, April 01, 2015

Ring the bell for property threshold adjustments

Sometimes, an unrung bell resonates the loudest.

Such was the case last night when the Texas Senate Criminal Justice Committee heard state Sen. Konni Burton's SB 393, which would adjust for inflation the main theft categories delineating punishment ranges in Texas, updating the code for the first time since 1993. Your correspondent was there to (briefly) testify in favor of the bill on behalf of the Texas Criminal Justice Coalition, but the legislation didn't need much help.

Remarkably, particularly given the contentious hearing early over changes to truancy statutes, there was no opposition to this bill - none, zilch, zero. No cops, no prosecutors, no probation officials, nobody. Just crickets chirping. Even the police unions stayed off. Despite the state's "tough on crime" reputation, not one citizen out of 25 million plus thought to come to the capitol to oppose this bill. Who'da thought?

Shannon Edmonds from the state prosecutors association testified "on" the bill, as is his wont, warning the committee against indexing the thresholds so they automatically update every year, which Sen. Charles Perry had passingly suggested. He said it would create too much confusion, particularly in older cases if the thresholds change through the course of the statute of limitations.

I'm more sanguine than Shannon about Texas prosecutors' ability to adjust to indexed property thresholds. Think of how many things hinge on Federal Poverty Levels, which are updated every year. Indexing property thresholds would be similar - the number would change annually and everybody would use the new one but also have a list of what they were from the previous years.

Regardless, that's not the bill on the table, which envisions only a one-time increase to account for inflation since 1993. The threshold from a Class A misdemeanor to a state jail felony would rise from $1,500 to $2,500.

Sen. Joan Huffman entertained concern that the $2,500 threshold may be too high (though it's almost precisely where the inflation adjustment lands), but she voted for the bill in the end. Marc Levin of the Texas Public Policy Foundation attempted to reassure her by pointing out the enhancements for repeat misdemeanor offenders were still in place; this bill only changes the amounts.

This bill makes so much sense: The last time the Lege consciously considered what the thresholds should be was 1993 in response to recommendations from a statewide Punishment Standards Commission. Then-rookie Criminal Justice Committee Chairman John Whitmire shepherded through the rewrite of the Penal Code, which as Edmonds pointed out would later be called a national model.

But over time, the sort of inflationary creep this bill attempts to mitigate expands the scope of government and reduces the liberty of citizens sans any additional legislative mandate. Without adjusting for inflation, as I told the committee, every year Texans can become felons for stealing less and less stuff. That's not fair from an equal protection perspective and it's increasingly expensive: Half of state jail felons are incarcerated for property offenses, said Sen. Burton when laying out the bill. The fiscal note for the bill predicted a positive impact on the budget but declined to estimate an amount.

Though Burton's a freshman and wasn't on the committee last year, this legislation stems from a recommendation by the committee in their interim report. In 2013, Rep. James White carried similar legislation in the House, with Rep. Ruth Jones-McLendon filing a related bill in 2011. This would be a big get for a rookie if it makes it through.

Burton's SB 393 has the greatest potential for reducing state level incarceration pressures of any bill heard so far this session - perhaps enough, even, for Texas to close more state jail facilities. And the silence of the opposition may be the legislation's most ringing endorsement.

Senate panel would decrimnalize truancy, depopulate Texas youth prisons

Texas Senate Criminal Justice Committee Chairman John Whitmire last night passed a pair of bills out of committee - decriminalizing truancy and further downsizing of Texas youth prisons - which between them would significantly alter Texas' juvenile justice system for the better.

Despite the bill's blessing from Texas Supreme Court Chief Justice Nathan Hecht and a host of supporters, the debate over decriminalizing truancy was more contentious than the eventual, inevitable 6-0 vote might indicate. Not many people confront Chairman Whitmire as aggressively as some of the folks from local truancy programs who came to oppose the bill, and it's been a while since I've seen the chairman as fully in attack mode as when he confronted a Tarrant County vendor who'd been ginning up opposition.

And in truth, I could see why he was mad. There was a great deal of misinformation in the opposition testimony by folks who thought the bill would take away any leverage from the courts, which really wasn't the case. Reported the Austin Statesman's Julie Chang:
Senate Bill 106, filed by Sen. John Whitmire, D-Houston, would make major overhauls to current truancy law, including referring students to a civil court that hears truancy cases rather than a criminal court. ...

According to the Austin-based nonprofit advocacy group Texas Appleseed, 115,000 truancy cases were filed in adult criminal court in 2013 and Texas prosecutes more than twice the number of truancy cases as all other states combined. Most of those states send cases to civil juvenile courts.

Whitmire’s bill would offer students a behavior improvement plan in cases where they face expulsion by a court and would reduce fines to $100 for a first offense, which would increase $100 for subsequent offenses up to a maximum $500.
The predominant dynamic at the hearing involved bill critics exhorting all the wonderful things they do for the families of truant children and how grateful their charges are for the services they get as a result of being ticketed and fined. Chairman Whitmire would respond by insisting that they tell him what portion of the bill would prevent them from doing all those wonderful things - the answer, of course, was always "none," if they answered at all. Rather, their fear was decriminalization would take away a "hammer" to force families to comply with their dicta. They distrusted that Whitmire's civil fines would be taken as seriously. As this metaphor played out during the debate, the old saying kept arising in my head, "If the only tool you have is a hammer, everything looks like a nail."

Regardless, all the weeping and gnashing of teeth by opponents amounted to a tempest in a teapot, with the vote's outcome predetermined before the meeting ever convened. The bill was voted out unanimously.

Significantly, Whitmire's bill comes as the US Justice Department announced an investigation this week into truancy and juvenile courts in Dallas County, reported the Dallas News' Robert Wilonsky:
The U.S. Department of Justice says in a release that its investigation “will focus on whether the courts provide constitutionally required due process to all children charged with the criminal offense of failure to attend school, including whether those protections apply to children whom the county charges with contempt. The investigation will also focus on whether the courts provide meaningful access to the judicial process for children with disabilities.” ...

According to the Justice Department, Dallas County “prosecuted approximately 20,000 failure to attend school cases in 2014.”

In a statement released Tuesday, Attorney General Eric Holder said, “The Constitution’s guarantee of due process applies to every individual, regardless of age or disability. This investigation continues the Justice Department’s focus on identifying and eliminating entryways to the school-to-prison pipeline, and illustrates the potential of federal civil rights law to protect the rights of vulnerable children facing life-altering circumstances. As the investigation moves forward, the Department of Justice will work to ensure that actions of Dallas County’s courts are appropriate; that our constitutional protections are respected; and that the children of Dallas County can receive the meaningful access to justice that all Americans deserve.”
See a related News editorial. That development certainly bolsters the case for Whitmire's bill, which now heads to the full Senate.

In other juvenile justice news, the same committee yesterday approved a major reorganization of Texas' juvenile justice system, as reported by Mike Ward at the Houston Chronicle:
Under Senate Bill 1630, up to 80 percent of juvenile offenders who are now sent to state lockups could instead be held in local treatment programs - a move that could significantly downsize the state's long-troubled youth corrections system and save taxpayers perhaps as much as $40 million.

"This is the next huge step to keep the youth closer to their communities in programs that work, instead of state programs that have not," said state Sen. John Whitmire, D-Houston, the author of the measure. "We'll not only have better results, but this will save money."

Officials and justice experts testified during a public hearing the plan, if approved, would mark the most significant change in Texas' juvenile justice system in years - a change recommended seven years ago, when the number of youths in state lockups was cut by more than half in favor of local treatment and rehabilitation programs. ...
Whitmire said officials have identified 35 regional centers across Texas that could hold offenders under the new plan. More than 800 of the approximately 1,000 offenders currently in state lockups could be housed in those centers, meaning the state could sharply shrink its system.

Under the bill, juvenile court judges would be encouraged to send youths to those regional centers rather than state facilities - with the idea that by 2017, only those serving sentences for the most serious crimes still would go to state lockups.

Whitmire said Senate budget writers refocused the agency's two-year budget to fund more local rehabilitation and treatment programs and to hire more parole officers.
This proposal sounds a lot closer to the original expert recommendations the Lege received eight years ago in the wake of the TYC sex scandals.

To go from nearly 5,000 in youth prisons a decade ago to fewer than 200, potentially, if this bill attains its stated goal, would be a remarkable achievement, particularly if juvenile crime continues to trend downward, as it did during all the while youth prison populations plummeted since 2007.

Monday, March 30, 2015

DA called 'unstable,' prison guard raises, clearance rates, and other stories

No time this morning to adumbrate the issues in individual posts, but Grits readers may be interested in these items:
  • Just three months into her tenure, Dallas DA Susan Hawk fired two top lieutenants, one of whom called her "unstable," and tearfully admitted she sought treatment a year and a half ago for addiction to prescription pain meds. The Dallas News speculated she may not survive the recent scrutiny, but it's hard to imagine what or who could oust her before 2018.
  • Check out a column in the Houston Chronicle making the case for the ten percent prison guard pay hike in the House budget.
  • Read NPR's John Burnett on Willacy County's budget shortfall in the wake of a private prison riot that forced the closing of a county-owned immigration detention center. Debt on the facility has been lowered to junk status.
  • Here's an update on the status of an FCC investigation into overcharging for phone calls to prison and jail inmates. See related coverage from the Houston Chronicle of legislation by state Sen. John Whitmire to mandate in-person visits instead of only video visitation.
  • The New York Times' Room for Debate feature today honed in on how to make forensic science "more dependable and professional."
  • What percentage of crimes does your local PD clear? NPR has created a tool to find out. The feature opened, "Violent crime in America has been falling for two decades. That's the good news. The bad news is, when crimes occur, they mostly go unpunished."

DPS border surge made rest of state measurably less safe

When the Department of Public Safety shifted its deployments to the border as part of "Operation Strong Safety," it measurably reduced DPS enforcement in the rest of the state, resulting in fewer citations and warnings issued statewide and corresponded to a period when traffic accidents increased. Further, arrests by DPS and especially the Texas Rangers plummeted in counties outside the border region. Check out discussions of the various data from three MSM outlets:
This was always, obviously true - troopers displaced from their home beats to the border aren't policing the state's interior, where most of the traffic and crime is. But it's good to see it documented with numbers, even if pols quoted in the stories - particularly in the Times - seemed to be in flat-out denial.

The Times editorial and the TM piece by R.G. Ratcliffe ably parse the meaning underlying the new data so I won't replicate their work: Check out the above links for more detail.

MORE: From the Texas Tribune, "Lawmaker questions what DPS is achieving on the border."

Sunday, March 29, 2015

No need to pick a side when everybody's wrong

Grits finds it ironic that David Dow, a Houston appellate lawyer specializing in death penalty work, is claiming the Court of Criminal Appeals issued an illegal sanction against him by suspending his practice before the court for a year. Quite humorously, to me anyway, he's in essence making the same argument Sharon Keller did when the State Commission on Judicial Conduct issued her an illegal "warning" instead of a "censure." Here's Dow's main argument, as reported by the Texas Tribune:
"Even if a claim could be made that Dow's actions had interfered with the CCA's core functions, the CCA, in suspending Dow, acted without authority," Dow's petition states.

"There is no rule that allows a judge or a court to bar a lawyer who is licensed by the Supreme Court of Texas to practice law and appear before them," [Dow's attorney Stanley] Schneider said later.

Admonishments and fines, yes, he said. Bans, no.

"They can refer him to the chief disciplinary council of the State Bar of Texas," Schneider said. "They can hold them in contempt or fine him."

But, he said, they can't ban him.
So the court could jail him for contempt, levy significant fines, or try to get him disbarred, the argument goes, but they can't impose what amounts to a professional time out?

That stance reminds me of nothing in the world more than the argument made by Dow's nemesis, Court of Criminal Appeals Presiding Judge Sharon Keller, when her attorney argued to the State Commission on Judicial Conduct that the wrist slap issued to her by the commission was illegal because it was improperly lenient. They'd given her a "public warning" instead of subjecting her to "censure," which would have forbade her from sitting as a visiting judge after leaving office. In the aftermath, voters approved what the Dallas News called the “Texas Court of Criminal Appeals Presiding Judge Sharon Keller Disciplinary Case Memorial Amendment” authorizing a broader array of potential punishments.

A lot of death penalty abolitionists appear to conflate Dow the man with abolitionism itself and have rushed to his defense, viewing an attack on him as an attack on their group as a class. Myself, I see the sanction as an attack on attorneys who persistently can't get their briefs in on time -- three times in this instance.

Any three-time offender may be a candidate for some sort of sanction, but perhaps the harsh nature of this particular penalty may be explained by the fact that Dow's tardiness seems to chiefly occur when he's required to file last-minute briefs on execution day, wasting away valuable minutes the court could be deliberating while his clients are being prepped for the death chamber. Add in the reality that, in the most infamous case, he famously indulged in demagoguery after the fact to blame Judge Keller for his dilatory habits, and Grits finds himself sympathetic with the CCA majority on this one.

Do I think a lot of this is personal between Sharon Keller and David Dow? You bet. Was Sharon Keller in the wrong in the "We close at 5" debacle? Absolutely. The State Commission on Judicial Conduct said so and I agree. But that doesn't absolve Dow of a duty to file his damn briefs on time. Dow doesn't have any personal beef with Bert Richardson or Kevin Yeary, or for that matter with Judge Cheryl Johnson, who went to battle with Keller over her judicial overreach after the "We close at 5" mess but also voted with the majority to suspend Dow for a year. The Keller-Dow personality clash doesn't fully explain what's going on here.

As Grits sees it, this isn't about picking sides between David Dow and Sharon Keller. They can both be wrong.

Friday, March 27, 2015

Should the AG or special prosecutors litigate police misconduct instead of local DAs?

On Thursday, your correspondent testified before the House Select Committee on Emerging Texas Law Enforcement Issues on behalf of the Texas Criminal Justice Coalition for a pair of bills which suggested alternatives to having local District Attorneys prosecute cases of serious police misconduct.

HB 1369 by Harold Dutton would create a special unit at the Attorney General's office to prosecute police misconduct cases, taking them away from local District Attorneys who must worry about the consequences of indicting officers who are witnesses in their cases, not to mention political backlash from police unions or other elected officials. HB 1840 by Ron Reynolds would address the same issue by appointing a special prosecutor, or as envisioned in the committee substitute, appointing a prosecutor from a neighboring county. See video from the hearing here. The bills come up at the 23:40 and 1:58:10 marks, respectively.

Rep. Dan Flynn offered up an alternative idea that garnered some interest: Having a panel of judges appoint special prosecutors in police misconduct cases instead of having the AG or another DA's office do it. He compared the situation to Republicans wanting the Travis County Public Integrity Unit taken away from Rosemary Lehmberg because of a lack of public confidence, emphasizing that a perception of fairness can be as important in politics as reality.

Hearings on both bills were punctuated with emotional testimony from people whose family members had been shot by police. Grits thought it was a good discussion and appreciated Chairman Allen Fletcher giving the bills and the families a hearing. He let the witnesses pro and con have their say and I thought the issues were fleshed out quite well, particularly given that this was the first time the topic has been seriously raised at the Texas Legislature.

At the hearing, I offered an anecdote from my own experience advocating on this topic to illustrate the difficult position prosecutors face when confronting allegations of crimes by police. I wrote up a few notes beforehand to refresh my memory but at the hearing spoke off the cuff, referencing them as an outline. Find my notes discussing the discouraging and unhappy example of of Samuel Ramirez below the jump:

Bill to criminalize filming police pulled down before hearing

State Rep. Jason Villaba's controversial bill criminalizing filming police officers within 25 feet - and forcing concealed handgun licensees with cameras to stay 100 feet back (astonishingly) - was scheduled to be heard yesterday in the House Select Committee on Emerging Law Enforcement Issues. Hours before the meeting, though, he pulled the bill down.

It's hard to blame him. As it turned out, they announced on the House floor, yesterday was Villaba's birthday. Who wants to show up in committee on your birthday to have people hate on you for two hours on a bill that's already DOA? What's the point, really?

There were a few grumpy people who'd come in from out of town to castigate Villaba and his bill. Some left frustrated that they didn't get their say. But they got the outcome they wanted, which is all that matters in this stage of the legislative process.

Ban on Daydreaming would save more lives than texting-while-driving ban, just as enforceable

Eric Nicholson at the Dallas Observer's Unfair Park blog rehearsed the arguments against the ban on texting-while-driving passed in the Texas House, with a particularly good discussion of the disingenuous numbers used to hype the policy and the inevitable difficulties enforcing it:
When pushing the bill, proponents tend to conflate distracted driving with cell phone use, perhaps because the numbers are more impressive. Every year there 3,300 fatalities nationwide linked to distracted driving. In Texas, one in five crashes -- or maybe it's one in four -- involve driver distraction. Texting may well be the "king of distraction," as an insurance-industry lobbyist recently told the Texas legislature, but if so it's a monarch in a multipolar world. Data on whether and how a cell phone was being used in the lead-up to a car crash are shaky, since that generally requires a person to detail their phone use to a cop investigating the crash, but the best federal figures suggest that cell phone use of all kinds is involved in 12 percent of distracted driving crashes; daydreaming, meanwhile, accounted for 18 percent. And that's for all types of cell-phone use, not just texting but also reaching for the phone, dialing a number, and talking -- none of which are touched by the bill passed by the House.
Of course, the fact that no one knows exactly how big a piece of the distracted-driving pie texting accounts for isn't necessarily defensible grounds for opposing it. But conflating numbers in a way that overstates the potential impact of a policy on public safety is, at the least, frustrating. There's also no clear data on the effectiveness of texting bans. A 2014 study concluded that primary texting bans similar to the one being considered in Texas were associated with a 3-percent reduction in traffic fatalities. But another study concluded that whatever impact texting bans had on accidents dissipated after a couple of months, once the news coverage had died down. Still another study, put out by an insurance industry group, found that texting bans have sometimes increased crashes, possibly because drivers were more prone to put their phones on their laps instead of at eye level in order to avoid detection by police.

A bigger issue is the difficulty of enforcement. Under the bill, texting and surfing the web on a cell phone is banned, but dialing a phone number or using a phone to navigate via services like Google Maps is allowed. How can cops know whether someone is texting or looking at Google Maps? They can't: The bill naturally prohibits cops from searching phones during a traffic stop. And are misdemeanor prosecutors really going to subpoena cell phone records to prove beyond a reasonable doubt that a driver was texting when he was pulled over? Doubtful.

In that case, the measure would stand as little more than pretext for police to pull over drivers they didn't otherwise suspect of a crime. State Representative Harold Dutton, a Houston Democrat, proposed an amendment that would prevent texting from being used as probable cause for a traffic stop, but it failed, along with his proposal to require larger police departments to annually report texting-while-driving citations, including a racial breakdown.

If his concerns seem overblown, remember Dallas' now-dead law requiring bike helmets. It, like the texting ban, was touted as a commonsense way to promote public safety, but it led to wildly disparate enforcement: almost all of the citations happened in poor, minority neighborhoods.
It's telling that "daydreaming" is a 50 percent greater "distraction" to drivers than phone use, including texting and talking combined. If we want to keep everybody safe, surely we need to ban that next? Then, of course, we'll need Thought Police to enforce the Daydreaming Ban, and if anybody tells you it's a bad idea, just raise your voice and insist texting while driving is just as dangerous as driving drunk, and daydreaming is half again as dangerous as that! Think of the children!

Nicholson concluded, IMO rightly, that the only potentially valid, fact based argument for the texting ban is to "send a message," and regular readers know Grits thinks criminal laws are a terrible way to do that. After all, who besides lawyers read them? Want to send a message? Then taxpayers' money would be better spent on billboards and TV ads telling people to get off the phone than on cops and courts to "educate" them via Class C tickets.

Grits would also add an important coda to Nicholson's points which this blog raised in December, and which is perhaps even more poignant today in the wake of a bridge collapsing yesterday on I-35:
few politicians want to talk about the much more significant cause of fatal accidents in Texas: Underinvestment in transportation infrastructure, particularly in the oil patch where the Eagle Ford shale region has seen a 40 percent increase in fatal crashes, but really throughout the state. Those parsimonious budget decisions at the Legislature are contributing more to the traffic fatality total than drivers talking on cell phones. But it's not as much fun to hold a press conference demagoguing against oneself. So it's better from a pol's perspective to find some group to blame and criminalize, like cell-phone users, even if in the scheme of things that's not the most common cause of driving fatalities, by a long shot, and bans may even make the problem worse.

Wednesday, March 25, 2015

New Mexico will require criminal conviction for asset forfeiture, will Texas?

Some folks at the Texas capitol considered state Rep. David Simpson and Sen. Konni Burton radical for filing legislation (here and here) which would effectively end civil asset forfeiture, requiring a criminal conviction before the state could seize someone's property. To put matters in perspective, though, see Radley Balko's report that in New Mexico:
The state Senate has just passed a sweeping bill that would virtually eliminate the practice of civil asset forfeiture and on this issue leave New Mexico as the most Fifth Amendment-friendly state in the country.

The bill would basically require a criminal conviction before police can take property associated with a crime. “Civil” asset forfeiture, by definition, allows law enforcement to seize and keep property without a criminal conviction. It often puts the onus on the property owner to “prove” that he or she obtained the property legitimately, or that it wasn’t used for criminal activity.

The bill was supported by the American Civil Liberties Union of New Mexico, the conservative think tank the Rio Grande Foundation, the Drug Policy Alliance and the libertarian law firm the Institute for Justice (IJ). In an e-mail, Peter Simonson of the ACLU-NM writes, “The sponsor was the Republican chair of the House Judiciary Committee and the bill had strong bipartisan support throughout the legislative process, passing both chambers unanimously.”

The bill was even praised by New Mexico resident Brad Cates, who headed up the Justice Department’s forfeiture office during the Reagan administration, the era when the more odious practices began.
See Grits recent coverage of Texas forfeiture legislation and a Texas-specific example of conservative support for reform on the issue that tracks Balko's national perspective.

Simpson's marijuana proposal - treat it like tomatoes - qualifies as radical. His proposal on asset forfeiture - that the government shouldn't take a man's property unless it convicts him of a crime - is common sense, Reaganesque conservatism for the working man.

Requiring a criminal conviction before one's assets can be seized is the kind of thing where, when you describe it in public, people respond, "isn't that already the law, already?" And when they learn it's not, nearly everyone thinks it should be. It's only prosecutors and law enforcement insiders who want forfeiture applied to people who the state cannot prove are criminals. And their support stems primarily from the fact that they're the ones who will get to spend most of the seized money.

House should narrow DPS thumbprint collection even further than laudable Senate bill

The Texas Senate has passed SB 398 by Charles Schwertner which clarifies that DPS does not have authority to take all ten fingerprints from drivers when they obtain or renew their licenses. Grits approves of the bill (see here and here), but it's worth mentioning that the proposal arose in reaction to DPS overreach, aiming to scale back fingerprint collection to where it was earlier - thumbprints only.

What hasn't been debated is whether we really need two thumbprints for the limited purpose - driver license verification - for which DPS is authorized to gather the biometrics. Grits fails to see why the state needs more than one, at most, to achieve that goal.

So yes, let's snub DPS' overreach on fingerprint collection in its tracks. But rather than automatically revert to the the prior rule, the House should take this opportunity to narrow biometric collection even further to match as closely as possible the stated purpose for which DPS is gathering it. Excess fingerprints beyond those bare minimum needs should be expunged from the system.

Sen. Schwertner deserves much credit for taking on this issue and standing up to DPS' overreach. But his bill could be further improved and the House should take the opportunity to do so.