Friday, May 29, 2015

DOJ civil rights chief shaped by landmark TX litigation

In the course of twenty years in Texas' criminal-justice reform movement, Grits has enjoyed the good fortune to work with a bevy of amazing women and, for whatever reason, only a handful of men operating at the same, high levels who for the most part were unable to get out of their (our) own way.

Emblematic of the former, happier, group is Vanita Gupta who took over as acting head of the Civil Rights Division at the US Justice Department in October but, in a past life, was once co-counsel on behalf of the NAACP Legal Defense Fund in the legal tussle following the Tulia drug busts. She went on to run national ACLU's Campaign to End Mass Incarceration before President Obama selected her for the Civil Rights post.

The Tulia episode, which for all intents and purposes inaugurated Texas' 21st century criminal-justice reform movement as we know it today, transformed the political and legal landscape surrounding the drug war and innocence issues in this state. Bail mechanisms put in place to free the Tulia defendants while awaiting the processing of habeas writs were later routinely used to free DNA exonerees. Voting blocks first created to pass reform legislation in the wake of the growing national scandal became templates for future criminal justice legislation, including Texas' much-vaunted 2007 probation reforms. And the abolition of Texas' drug task force system significantly shifted the focus of local law enforcement in ways that we couldn't foresee at the time.

So Grits couldn't avoid a moment of nostalgia when this profile on Gupta - who in the wake of the post-Ferguson police accountability maelstrom became an instant national figure -  prominently featured her years working on the Tulia case as a formative experience:
In 2001, a 26-year-old, fresh out of law school, had just started at the NAACP Legal Defense Fund and was looking for a case. When she saw a short documentary about a troubling large-scale drug bust in a tiny Texas town, with facts she thought were "almost too outrageous to believe," as she later put it, Vanita Gupta decided to check things out for herself.

Tulia, Texas, a town of about 5,000 people, was the scene of a large drug bust in 1999 that rounded up more than 10 percent of the city's small black population. A total of 46 people -- mostly black, but a few of them white and in relationships with African-Americans -- were arrested on charges of trafficking cocaine. Local news coverage celebrated the arrests, with one newspaper proclaiming that Tulia's streets had been "cleared of garbage." The defendants were convicted and given extraordinarily lengthy sentences: 300 years. 90 years. 60 years.

The evidence against many of them? Uncorroborated testimony of a single man: a former rodeo cowboy who regularly used racial slurs, whom local police had hired to go undercover and target "street-level" dealers.

After a few days of meetings with family members and a local attorney, Gupta returned to her New York office with so many documents she had to buy an extra suitcase at Walmart. The case would soon grab still more attention. "60 Minutes" deemed the case one of the "worst miscarriages of justice in recent memory." The New York Times described it as a "national symbol of racial injustice." The agent on whose testimony the case rested, who had been named Texas Lawman of the Year in 1999 for his work in Tulia, was called "devious" by a Texas judge, who said he had committed "blatant perjury." The agent was later convicted on aggravated perjury charges. Gov. Rick Perry (R) pardoned most of the Tulia defendants, and Gupta helped the plaintiffs secure a $5 million settlement that required the federally funded drug task force responsible for the arrests to be disbanded.

But Tulia wasn't an isolated incident, Gupta said, it was just the tip of the iceberg. "There is a need for more systemic reform to prevent other Tulias from taking place," she said in a 2004 interview with NYU Law, her alma mater
For the record, the Tulia settlement didn't "require" the drug task forces to be disbanded. That happened after a five-year campaign resulting in legislation by Sen. Juan "Chuy" Hinojosa to put the drug task forces under control of the Department of Public Safety. Most of them refused to accept oversight or follow the rules, leaving Gov. Rick Perry little choice but to de-fund them in the end.

Still, Vanita played a pivotal role. And though we haven't communicated in a couple of years, I'd like to think those formative experiences 15 years ago which shaped both of us so significantly still connect us in some small way. I'm really quite proud of her.

Thursday, May 28, 2015

Forensic error roundup

A few more tidbits on forensic science reform, Texas' junk science writ, new legislation clarifying its meaning, and the upcoming oral arguments next week rehearing Ex Parte Robbins.

Who killed Texas' 'ban-the-box' bill?

After a promising start in the House, "ban the box" legislation - postponing questions about criminal history until later in the hiring process at state agencies - failed even to get a hearing on the senate side this year. Senate Natural Resources and Economic Development Committee Chairman Troy Fraser refused to set it for a hearing. So it wasn't even considered, debated, and voted down, just smothered with a pillow by a single opponent in a back room. That sucks: A really good bill slain by indifference.

Wednesday, May 27, 2015

Tweaking Texas' junk science habeas writ, and why the state must give more notice when it asks a judge to evict you than to kill you

Legislation codifying the Texas Court of Criminal Appeals' interpretation of Texas' junk science writ (see here and the second item here) has been sent to Gov. Greg Abbott for his signature and a bill to require the government to give notice when setting execution dates has gone awry.

To evaluate  these obscure but important subjects, Grits recorded a brief podcast this afternoon with Mandy Marzullo, the Policy Director for the Texas Defender Service, with whom your correspondent worked closely on a couple of items in the waning days of session. (Some camera-eyed, long-time readers may recall that, in a previous Texas tour, Marzullo helped Grits push to create the indigence rules for the Driver Responsibility surcharge, a laborious mitzvah for which I'll remain eternally grateful.)

Mandy provided excellent summaries of a couple of important pieces of legislation: HB 3724 by Herrero/Whitmire and SB 1071 by Hinojosa/Thompson, neither of which have received much if any attention in the mainstream press. The former bill establishes an important benchmark for courts evaluating junk science claims (see coverage from the Marshall Project) while the latter attempts to establish procedures for notifying lawyers for capital defendants when an execution is scheduled (presently, in some counties, they get less notice than you'd receive if you're being evicted from your apartment).

Give it a listen. Or go here for the audio file in other formats. See a transcript of the interview below the jump.

And then the dust cleared: First look at criminal justice reforms still standing

We find little more clarity on pending Texas criminal justice legislation this morning after the last few days of deadlines. Here are a few, initial highlights:

Innocence commission headed to governor
Ruth McClendon's innocence commission legislation passed the senate, will concur easily in the House, and will soon be headed to the governor. The commission's work will play out over the next 18 months.

Race is on to define scope of Texas' junk science writ
Grits has lots more to say about the passage of HB 3724 by Herrero/Whitmire but suffice it to say for now this legislation codifying the 5-4 result in Ex Parte Robbins was a big win for innocence advocates and justice loving people everywhere. The bill's importance grows as the Texas Court of Criminal Appeals prepares to reconsider their ruling in Robbins at oral arguments on June 3, two days after the legislative session ends. The vote count on the court changed after three members of the majority retired from the court in January, replaced by three former prosecutors. So the legislature and the court are in essence engaged in a race between two branches of government to see who can define the scope of Texas' new junk science writ going forward. One thing's for sure: The Robbins majority based its conclusion in part on legislative history from the bill's original 2013 passage, attempting to interpret the legislators' intent. With the Legislature codifying the Robbins majority view, there can no longer be much debate, it seems to me, about what that body's intent might be regarding habeas and junk science, whether or not Gov. Abbott gives this very-good-bill his blessing, as he absolutely should.

Juvie reforms: Oh Christmas tree, oh Christmas tree ...
In the House, SB 1630 reducing the footprint of state juvenile lockups and shifting inmates to counties was loaded up like a Christmas tree with a variety of ornamental amendments, most prominently a pledge to raise the age of criminal culpability from 17 to 18 on Sept. 1, 2017, but only if the 85th Legislature funds needed transition costs to be identified in an interim study, probably at the Senate Criminal Justice Committee. They also tacked on legislation to expand the role of the TJJD ombudsman and other, smaller but significant amendments. More on this later, no doubt.

Truancy decrim
Truancy decriminalization passed the senate, again, as a substituted House bill. Pray for a House concurrence.

Funding body cameras
The House approved $10 million grant program for body cameras, reminiscent of the $18 million bond issue approved by voters in 2003 to pay for dashcams in police cars, a measure also carried by Sen. Royce West. In Dallas, Police Chief David Brown announced this week that officers who improperly turn off their body cams face severe discipline.

Pushback begins on in-person visitation bill
This was predictable: Jails that switched to video only visitation only don't want to go back to offering in-person visits because it would cost them money. Pray for Gov. Abbott to sign the bill, if this law doesn't take effect now there will be a mad rush of jails shutting down in-person visits hoping to be grandfathered in any 2017 legislation. Complaints expressed in the linked article, btw, seem to ignore the fact that the legislation exempts facilities which have already installed video only facilities.

House leadership nixes surcharge reforms
Nearly all the Driver Responsibility surcharge reform legislation proposed this session is dead, and wasn't helped when the speaker ruled an amendment by Larry Phillips and Sylvester Turner related to the DRP indigence program wasn't germane on a bill related to indigent defense. The bigger remaining reform bill sat just a few captions beyond campus-carry legislation that had Democrats fruitlessly chubbing late into the night (it passed anyway, and as amended was a rather modest and reasonable bill). So surcharge reform seemingly has a House leadership problem: The speaker squelched Phillips' amendment and the Calendars Committee placed the reform bill behind the bill-killing campus carry legislation. These losses were particularly devastating because, for the first session in memory, Senate and the House membership are mostly aware of the problem and widely support reform. Finding votes on the floor for scaling back the program isn't the problem. The barriers to getting something done seems to lie high up the food chain in the lower chamber.

Tuesday, May 26, 2015

Dotting i's on grand jury reform

The passage of Texas grand jury reform over the weekend was shockingly uneventful, with predicted fireworks never materializing and gutting amendments never proposed. It turned out, the votes were there in the House to pass the bill without bracketing it to large counties or giving judges a choice to use the old system. So, hurrah! But the saga's not quite over.

With the Texas House having passed SB 135 eliminating the pick a pal grand jury system and the Senate amending HB 2150 to do the same thing, a clause encouraging diversity in grand juries is now the sticking point in the feud between Sen. John Whitmire and Rep. Harold Dutton. The senator wants to reinstate the clause and the representative deleted at the behest of the governor on the House floor. The Houston Chronicle's Mike Ware summed things up thusly:
So, with just a week left in the legislative session, the House has passed its version of a Senate bill that does not include the diversity rule. And the Senate has passed a House bill that now includes the rule.

How does that play out?

The House and the Senate will have to confer on both bills, and decide which to support in a final version. Look for some political pushing and shoving on both sides to get that final wording in coming days since Whitmire and Dutton are not seeing eye to eye on much in the waning days of the legislative session.

Whitmire said Monday he has no intention of bending, and wants the diversity provision in the bill. Dutton seems just adamant.
There's actually a simple way out of this without facing another nasty floor fight in the House over this bill. As it turns out, Chairman Dutton is not author of HB 2150, to which grand jury reform was amended after he scuttled his own legislation; Carol Alvarado is. If Sen. Whitmire concurs on SB 135 and she takes HB 2150 to conference, it would be possible to strip out all the extant provisions except Alvarado's original bill and Whitmire's diversity clause. That way, they end up with a complete bill - done as two bills - and in a procedural posture that can actually pass in the short time remaining.

That's my hope. IMO this debate should be over now, and discussion focused only on dotting i's and crossing t's.

UPDATE (5.27): Word now has it that the governor has expressed concern with the diversity clause Whitmire wants, so both bills will go back for concurrence - one with, one without the diversity piece - and presumably the choice will be left up to Gov. Abbott which one becomes law.

NUTHER UPDATE: A deal has been struck between Whitmire and the Governor and HB 2150 will now go to conference committee. It will likely be the version of the bill that's finally passed and signed into law.

Saturday, May 23, 2015

In-person-visitation bill nears finish line, grandfathers video-only facilities

Legislation by Rep. Eric Johnson (SB 549) to require most Texas county jails to provide in-person visitation (grandfathering a baker's dozen that built video only facilities in the last few years) has cleared committee in the second chamber this week and will soon become eligible for approval by the full senate. Senate Criminal Justice Committee Chairman John Whitmire is carrying the bill in the senate. A Dallas News editorial last weekend explained why it's urgent that the bill pass this session:
More and more counties will build or retrofit their jails to prevent inmates and their families from being together in the same space.

Why? The main reason is cost. It’s cheaper to require video visits. It cleans up the complication of having non-inmates in and out of the jail.

But there are many things that could lower the cost of incarceration that we don’t do because they are simply wrong. This should be one of them.

As it is, inmates aren’t able to have physical contact with visitors. They must meet on either side of a thick glass window. But the difference between being able to see the real person, to be in the presence of a wife or child, is only describable if you have been denied it.

And remember, this is jail — not prison. These are primarily people behind bars waiting for trial and presumed innocent.

In large counties, more than a month can pass before a trial happens. That’s a long time not to see a loved one in person.

If the Senate fails to pass a bill protecting in-person visitation, it’s possible, even likely, that counties will rush to retrofit their jails to prohibit the practice.
I'd prefer they take out the grandfathering. There haven't been that many new jails built in the last few years, these are mostly facilities which retrofitted their jails to eliminate in-person visitation. Apparently this was needed to secure votes, but that doesn't mean it's a great idea - a bit like closing the barn door after 13 horses have escaped.

See additional coverage from the Longview News Journal.

Abbott: Texas intends to comply with federal prison rape regs

Reversing course from Gov. Rick Perry's rash decision last year, Gov. Greg Abbott announced that Texas will seek to fully comply with the Prison Rape Elimination Act, reported the Texas Tribune. Readers may recall this blog broke the story about Perry's decision to thumb his nose at this federal law whose origins, ironically, lie in Texas.

Abbott's statement does not immediately evelop Texas in the bosom of federal compliance, reported Patrick Svitek, because, "Under the PREA, governors also have to guarantee they will use at least five percent of justice department grant money in their efforts to fully meet the law's requirements — something Abbott did not do."

Still, this is a major reversal. If the governor had issued his decree five months ago, it would have put a lot more pressure on the state to pass raise-the-age legislation which died an ignominious and unnecessary death in the Texas House. Texas county jails housing 17 year olds must soon renovate and boost staffing to comply with PREA juvenile standards.

If, heaven forbid, Texas ends up in a special session over the budget or anything else, this turn of events argues for the governor to add "raise the age' legislation to the call.

MORE: Here's related coverage from the New York Times, which concluded:
Last year, Texas was one of six “renegade states,” as inmate advocates called them. Two of them, Florida and Indiana, opted into the national effort to eliminate prison rape this year, submitting accepted assurances.

It is unclear what the three others, Arizona, Idaho and Utah, did. The Justice Department’s list of certifications and assurances is not complete.
AND MORE: From the Marshall Project.

See related Grits posts:

Friday, May 22, 2015

Still a chance for surcharge reform bills in home stretch

With not much time to spare, CSSB 93, which in its revised form would make Texas DPS stop suspending driver licenses for unpaid Driver Responsibility surcharges, passed the senate yesterday on a 28-3 vote. See MSM coverage here, here, and here. This would be the most significant Driver Responsibility reform which has so far passed either chamber this year. The bill has been received from the senate and would need a referral today and a near-instant hearing in the House and a lot of luck to make it all the way through the process. UPDATE: This bill unanimously passed out of House Transportation committee Saturday; there's still time, but barely.

Meanwhile, SB 1056, which passed this week out of the House Homeland Security and Public Safety Committee, includes some of the reformist tweaks to the surcharge system which had been in bills which died last week on the House calendar. The version going to the floor, Chairman Larry Phillips proudly conveyed to me, includes an increase of the indigence thresholds for having DPS waive surcharges by rule from 125 percent of poverty to 175 percent. Of the two, this more modest proposal faces much better odds of passage, mainly because of the amount of time left.

Neither option is as good as abolition, but as my Dad likes to say, both are better than a sharp stick in the eye. For a moment last week I feared we may not see even incremental reform legislation on surcharges. Now there appears to be a decent chance.

Thursday, May 21, 2015

Dutton-Whitmire bill logjam breaking up: Truancy decrim, juvenile regionalization and grand-jury reform all still have time to pass

The Texas House may get one final chance to vote on Sen. John Whitmire's legislation - now amended onto a passing house bill - to eliminate the state's pick-a-pal grand jury system.

On Tuesday in the Senate Criminal Justice Committee, Chairman John Whitmire substituted his "consensus" senate version of grand jury reform to HB 2150 by Rep. Carol Alvarado, stripping out the version Rep. Harold Dutton amended on the House floor, including the brackets added by Rep. Ed Thompson to limit the bill to counties with more than 500,000 population. He also left on some additional minor changes that were in Alvarado's pre-amended bill.

The Senate earlier passed Whitmire's grand jury reform bill 31-0. HB 2150, added  to the committee agenda at the last minute via a suspension of the rules, also received a unanimous vote in committee and, having been previously agreed to in the upper chamber, should move out of the senate fairly quickly.

Sen. Whitmire also amended his legislation decriminalizing truancy to a bill by Rep. James White. The chairman said White was strongly supportive of decriminalizing truancy, legislation which never received a vote in the House Juvenile Justice and Family Matters Committee, which Rep. Dutton chairs.

Both bills face concurrence votes when they get back to the House, which will essentially be that chamber's up or down vote on Whitmire's legislation.

In related news, on Tuesday, the Houston Chronicle's Mike Ward reported that Whitmire's juvenile regionalization legislation, which would result in at least one TJJD unit closing, was near death's door. "By Tuesday afternoon, supporters of the Senate bill were pushing for a hearing in the House to get the bill moving again — and were looking for a House bill in the Senate that could be amended to make the changes contemplated in Whitmire's bill." Then on Wednesday, Chairman Dutton finally obliged reform supporters and voted SB 1630 unanimously out of his committee. It still has time to pass if the committee report doesn't lollygag on its way to Calendars.

Grits is relieved to see the stalemate subsiding, better late than never. All these issues are too big and important to let inter-chamber rivalries prevent their passage.

UPDATE (5/23): Whitmire's SB 135 eliminating the pick-a-pal system was posted to Saturday's floor calendar and passed on second reading on a voice vote. Third reading is Sunday afternoon. See coverage from the Houston Chronicle.

Monday, May 18, 2015

Ted Cruz: Rein in prosecutor power, lower "draconian" mandatory minimums

Several Texans are featured in a new book by the Brennan Center, "Solutions: American Leaders Speak Out on Criminal Justice."

Regular readers are used to TPPF's Marc Levin's focus on outcome-based supervision policies, as well as Rick Perry taking credit for probation policies he first vetoed then grudgingly accepted. A graph available elsewhere on the Brennan Center site shows why voters might rightly be dubious of Perry's plea to follow the "Texas Model." He's presided over a modest decline in incarceration rates, but Texas remains the nation's incarceration capital, warehousing more inmates than any other state, including much larger California.


We've heard from Levin and Perry before. But Ted Cruz's positions, for me anyway, stake out new territory. His "essay focuses on three vital areas of concern: overcriminalization, harsh mandatory minimum sentences, and the demise of jury trials." On overcriminalization:
The place to start is with incremental reforms aimed at mitigating the harmful effects of overcriminalization. Congress should begin by requiring that all criminal offenses are put into one title of the Code, Title 18, or if that proves too difficult, Congress can enact a law that prohibits criminal liability on the basis of any statute that is not codified or otherwise cross-referenced in Title 18. Having thousands of criminal laws scattered throughout the entire Code works an intolerable hardship on the public akin to Caligula posting his laws high up to make them difficult for the public to see.

To ameliorate the effect of redundant or overlapping criminal laws, Congress should also pass legislation requiring courts to presume that a single criminal act or transaction should be treated as one crime subject to one punishment, even if the act or transaction is punishable under multiple statutes. And to mitigate the consequences of criminalizing regulatory offenses, Congress should repeal criminal penalties for violations of agency regulations. At the very least, it should require that any new regulations carrying criminal penalties be approved by Congress and the president. Perhaps most importantly, Congress should enact legislation that requires the government to prove the defendant knowingly violated the law — or that, at least, allows a mistake of law defense — for certain classes of crimes that have no analog in the common law or that no reasonable person would understand to be inherently wrong. Where the government has criminalized non-blameworthy conduct for regulatory purposes, ignorance of the law should be a valid defense to criminal liability.
He also lamented "the ratcheting up of mandatory minimum sentences over the last several decades" to "draconian" levels, and spoke of "the undeniable costs and dubious benefits of mass, long-term incarceration of nonviolent drug offenders."

Perhaps Cruz's most notable complaint, however, involved the "demise of jury trials." He wrote:
Plea bargaining has become the norm in our criminal justice system, while the constitutional right to a jury trial — which the Founders understood to be a bulwark against tyranny — is now rarely exercised. Contrary to popular perceptions, we no longer have a system where a jury determines a defendant’s guilt or innocence in a public trial. In 2013, 97 percent of all federal criminal charges that were not dismissed were resolved through plea bargains; less than 3 percent went to trial.

In this plea-bargaining system, prosecutors have extraordinary power, nudging both judges and juries out of the truth-seeking process. The prosecutor is now the proverbial judge, jury, and executioner in the mine-run of cases. Often armed with an extensive menu of crimes, each with their own sentencing ranges, federal prosecutors can wield their discretionary charging power to great effect by threatening the most serious charges that theoretically (if not realistically) can be proved. If the accused succumbs to the threat and pleads guilty, which often happens, the prosecutor agrees to bring lesser or entirely different charges that carry a lower sentencing range.

Given the risks involved in turning down a plea offer, it is not unheard of for people to plead guilty to crimes they never committed. Of the 1,428 legally acknowledged exonerations recorded by the National Registry of Exonerations since 1989, 151 (or roughly 10 percent) involved false guilty pleas. It is estimated that between 2 and 8 percent of convicted felons who have pleaded guilty are actually innocent. In a federal prison population of 218,000 — the number at the end of fiscal year 2011 — where 97 percent pleaded guilty, that means that anywhere from 4,229 to 16,916 people could be imprisoned for crimes they did not commit.

The plea-bargaining system is premised on the assumption that there is relatively equal bargaining power between the accused and the state. Nothing, of course, could be further from the truth. Mitigating the coercive effect of the plea-bargaining process will require empowering the defense. And one way to do that is to reduce the informational asymmetry between prosecutors and defense counsel. Plea offers are often foisted upon the accused before the defense has had enough time to investigate the facts, and the longer the investigation takes, the less generous the plea off may become. Congress should pass legislation that requires the government — whether constitutionally required or not — to disclose material exculpatory evidence before the accused enters into any plea agreement. This reform will reduce the risk of false guilty pleas by helping ensure that the accused is better informed before sealing his or her fate.
Very few people in 21st century criminal justice debates have focused on the increasing omnipotence of prosecutors in the process, usurping the role of judges, juries and even legislators thanks to wide discretion and the plea-bargain process. So that's a new an interesting frame for the debate among national GOP leaders. Similarly, a presidential candidate estimating that between 4-17,000 federal inmates "could be imprisoned for crimes they didn't commit" opens up the conversation considerably. Few elected officials in either party are willing to publicly countenance the idea that so many innocent people may be sitting in prison.

This may be the first presidential campaign since '88 and '92 when criminal justice issues come to the fore, and on sharply different vector from the tuff-on-crime fetishism of a quarter century ago. Here's an interesting, related National Journal item on the prospects for federal sentencing reform.

Sunday, May 17, 2015

Will Texas join conservative states adopting syringe exchange in 2015?

In the wake of the Texas House of Representatives approving syringe exchange legislation last week,* Grits was interested see this article in the New York Times about changing laws and attitudes on the topic in conservative states. Though the Texas vote wasn't mentioned, the Times' Carl Hulse reported:
Now, with a severe outbreak of H.I.V. and hepatitis due to a surge in heroin use in states including Indiana, Kentucky and West Virginia, the question of whether to let federal money support needle exchanges is back. Still, in contrast to a new willingness by state politicians to accept needle exchanges, Congress appears unlikely to overturn the moratorium even with drug problems hitting hard in states represented by those responsible for the spending bills that impose the ban. ...
Though evidence has mounted that needle exchanges are effective — the Centers for Disease Control and Prevention and the World Health Organization, among others, have recommended them — they have remained anathema to many politicians, particularly Republicans who have long framed opposition as an essential element of their antidrug image.

“As Republicans, we don’t want to look like we are facilitating drug use,” said Representative Tom Cole, the Oklahoma Republican who is chairman of the appropriations subcommittee that distributes health funding. “We want to get you help, but we want to do other things.”

While expressing reservations, Mr. Cole acknowledged that public funding of needle exchanges could be more cost effective than the potential public expense of treating increasing numbers of AIDS and hepatitis cases. He said he expected the issue to come up as Congress put its health spending bill together and, like [Rep. Harold] Rogers, said he was open to exploring the issue.
“If the evidence is such that it really makes a difference, it is something to look at,” Mr. Cole said.
To some Democrats, there is no question that the ban should be eliminated and that Republicans are stuck in the past when it comes to both drug and health policy.

“We should lift the ban,” said Representative Rosa DeLauro of Connecticut, a senior Democrat on the appropriations subcommittee. “Health, and not ideology, should be the determining factor.”
In Indiana, an epidemic of H.I.V. related to intravenous drug use in one southeastern county led Gov. Mike Pence, a former Republican House member and longtime supporter of the ban, to back away from his opposition. In March, he signed an executive order allowing a temporary needle exchange in Scott County. This month, he signed legislation allowing counties around the state to begin exchanges if officials can demonstrate that they would be an appropriate public health response. The Kentucky Legislature, on a bipartisan basis, also passed legislation allowing needle exchange programs.
Apparently Mr. Hulse didn't know about the Texas House's remarkable vote to approve syringe exchange pilots in seven counties on essentially conservative grounds - it would have fit perfectly into his story's narrative. But perhaps news of such programs spreading in conservative states will contribute to new momentum on the senate side, where the Texas bill still awaits referral to committee.

Grits wondered before session whether changing political dynamics regarding the drug war and disease prevention might give needle exchange legislation new legs. Apparently that's the case, and not just in Texas.

*Your correspondent supported this legislation on behalf of the Texas Criminal Justice Coalition.

Saturday, May 16, 2015

Why is John Bradley smiling? ... and other stories

Here are a few odds and ends that may interest Grits readers from a busy week in which the legislative picture for 2015 began to gain some clarity.

A case study in faulty sex-offender registration restrictions
Not long after testifying at the Legislature on the unfairness of sex-offender registration conditions, Fresh off a Soros fellowship, and just a couple of weeks after testifying before the Texas Legislature, activist Josh Gravens' faces prison again for a sex-offender registration violation. See an account of his alleged new offense by an eyewitness.

Somewhere in Palau, John Bradley is smiling
Williamson County politics is sort of a cesspool and DA Jana Duty has been feuding with the local establishment for a decade. So it's hard to tell from the coverage whether a judge's threat to hold her in contempt for violating a gag order has subtexts beyond the immediate issues in the case. Regardless, somewhere in Palau, John Bradley is smiling.

Newsflash (not!): DPS withholds answers from reporters
I'm not sure it's news that the Department of Public Safety fails to give reporters information even when they obviously know and could easily provide answers to their questions, but it's now proven.  Given that DPS provides the Legislature dubiously overstated information, who is really surprised?

Conservative views on threat from government inform left-right reform coalitions
Polling re: Jade Helm shows 45 percent of Americans fear their government. Grits harbors no concern at all from an in-country military exercise, Greg Abbott's pledge to monitor the situation notwithstanding. But for good or ill, it's this underlying political reality that makes left-right coalitions on criminal-justice reform possible in the current environment. If conservatives fear a hypothetical police state may be turned on them, they're a little more careful to limit police power and preserve constitutional protections.

Bill would require in-person visit option at (most) county jails
The House passed legislation to require jails to offer in person visits, but grandfathering facilities built in the last few years that only include video. The MSM coverage did a good job on this. I don't like the amendment - and I suspect some or all the grandfathered facilites previously had in-person visits and could revert more easily than they're pretending - but I understand why it would be  necessary to pass and it limits future harm.

Passing more unconstitutional statutes: Revenge Porn edition
A bill banning revenge porn also made it across the threshold out of the Texas House and into the Senate before Thursday's deadline, but Mark Bennett says the version passed can't survive constitutional challenge. That doesn't mean it won't become law, anyway, just that Mark won't soon find a shortage of First-Amendment-challenged legislation to blow up in court. It could be possible to write a constitutional revenge-porn statute but there's no evidence this is one.

Late train on Driver Responsibility surcharge reform
Rodney Ellis' bill to repeal the Driver Responsibility surcharge has morphed into a version of a now-dead House bill to eliminate driver license suspensions associated with the program. It's passed out of committee but will need to hurry to catch the late train. Both reform bills in the House this session died on the calendar Thursday night.

Don't double down on stupid
The Houston Chronicle unwisely suggested giving the GR portion of Driver Responsibility surcharges to trauma hospitals in addition to the 49.5% of the money they get now, which Grits thinks is a terrible idea. We need to wean them off that funding source, not double down on it. As I wrote in the comments, "The state needs to find a more stable means of funding hospitals - the larger point of the article with which I wholeheartedly agree - and stop pretending Texas can pay for them by mulcting poor people. Texas should abolish the DRP and expand Medicaid to cover hospitals' indigent care - that's the real solution."

Polunsky inmates made Willie Nelson a badass guitar
From Willie's blog:
 How awesome is that?

Friday, May 15, 2015

Civil commitment bill targets agency dysfunction; clock ticking on housing crisis

The Texas House yesterday passed Sen. John Whitmire's and Rep. Sylvester Turner's bill overhauling the sex-offender civil commitment program, reported the Houston Chronicle's Mike Ward and Anita Hassan. (See an analysis of the bill from attorney Nancy Bunin.)

In a quote that must be music to the ears of the Texas Juvenile Justice Department, Whitmire declared that, "In all my years up here, I don't think I have ever seen a program as dysfunctional and legally challenged as this program - and that's saying a lot." In recent years, such comments have often been aimed at TJJD, or its predecessor agency TYC. Finally, they've elevated from the bottom rung of agency dysfunction! Or maybe the floor just dropped.

Regardless, while addressing issues of agency management and eliminating the jurisdiction of a biased Montgomery County judge who oversees the program, the reforms do not address the most immediate problem with Texas' civil commitment program: Where if anywhere can the state house them in the community without being pushed out by NIMBY backlash? Nobody knows, and the clock is ticking to find a solution. The Chron article concluded:
The bill, however, does not address a critical housing shortage facing the agency.

The roughly 175 men currently active in the program are living in halfway houses, jails and boarding houses under round-the-clock supervision.

The private halfway houses, however, have demanded the men be removed by August. The agency has no room to house the men or those who are expected to come out of prison throughout the year. Because of that, officials had asked for the changes to take effect immediately so they can move ahead with plans to buy or lease a new facility where the offenders outside prison can be confined while they undergo treatment.

Thursday, May 14, 2015

House passes 'ban the box' bill for state agencies

A Houston Chronicle editorial (May 11) rightly praised "ban the box" legislation for state agencies which the Texas House passed today. The article opened:
The "box" asking about a criminal conviction is one most of us mindlessly check on employment applications. But for many otherwise employable adults, it's the biggest barrier to moving forward with productive lives.

Rep. Eric Johnson, D-Dallas, introduced a bill this legislative session that would prevent state agencies from asking about an applicant's criminal background until the interview stage. The proposal is in line with a national trend that has strong bipartisan support.

Center for American Progress, a progressive think tank, recently teamed up with the conservative Koch Brothers to form an advocacy group for criminal justice reform. One of the coalition's goals is to lessen the barriers to employment for ex-offenders. The Koch brothers have banned the box at Koch Industries, the multinational conglomerate.

Policies promoting rehabilitation for ex-offenders require a strong dose of common sense. No one is proposing, for instance, that a former drug dealer be allowed to work for the Texas Pharmacy Board. Or, for that matter, that any state agency be required to hire any ex-offender. A "ban-the-box" law just gives the potential employee an opportunity to present himself to a potential employer and for the potential employer to see the whole person. When that box is checked, applicants often are immediately rejected for a prior offense that may have no bearing on the job or is so old that it's not relevant.
Now, HB 548 on to the Senate. This would be a really good and important change, I hope it makes it through..

Hissy fits have consequences: Juvie bills derailed by grand-jury reform fight

In the midst of a feud with Sen. John Whitmire over failed legislation to reform the state's pick-a-pal grand jury system, Rep. Harold Dutton exercised his authority as Chair of the Juvenile Justice and Family Matters Committee to cancel a meeting last night. The apparent motive: Retaliation. The agenda included Whitmire's reorganization of the Texas Juvenile Justice Department, shifting more youth to county control. Bills by Senators Burton, Uresti, Eltife and Schwertner were also affected.

In theory, I suppose, nobody could make Dutton convene the committee again this session, though such behavior might not get him invited back as chair next time. Houston Chronicle columnist Lisa Falkenberg penned a column laying blame for the grand-jury reform mess at Dutton's feet, and though I like and respect Dutton, that's a sentiment universally shared by insiders observing the debacle close up. Dutton carries too many bills and doesn't always work them aggressively. At times, there are inexplicable bungles. And what happened on the floor on grand-jury reform was an unnecessary disaster. (If needle exchange could get 92 votes on second reading, for heaven's sake, Dutton should have been able to find 76!)

I've seen multiple lists of legislators who would likely flip on Thompson's amendment if the vote were held again. They voted for it because members didn't understand the bill and Dutton hadn't worked the room. Part of the blame lies with advocates for the change, to be sure: If members didn't understand the bill, that's because nobody explained it to them. But the chairman can't escape a sizable share of culpability.

Between killing raise-the-age legislation by chubbing the gay marriage re-ban and now potentially scuttling juvenile de-incarceration in addition to grand-jury reform, Democrats run the risk of derailing the bulk of criminal-justice reform legislation still moving in these final stages of the session.

In the legislative process, at least, hissy fits have consequences.

UPDATE: In the waning hours of Thursday evening, Dutton amended the senate version of the grand jury bill onto other legislation. With Ed Thompson's amendment added to make it apply only in counties with more than 500,000 population, it passed without debate. See coverage from the Houston Chronicle.

Wednesday, May 13, 2015

Overdose prevention legislation soon headed to governor

As Texas' needle exchange legislation heads from the House to the Senate, another harm reduction bill - HB 225 by Guillen, aka the Good Samaritan overdose prevention bill - has passed both chambers and is all but on its way to the governor's desk. Your correspondent supported the bill in both chambers on behalf of the Texas Criminal Justice Coalition.

The Good Samaritan piece of this bill creates a defense to prosecution for people who dial 911 during an overdose if they stay on the scene, cooperate with police, etc.. The bill had never moved far in past sessions but this year rocketed through the system early, with nearly unanimous support. Along the way, Sen. West's legislation expanding access to naloxone for first responders and people with a prescription got tacked onto the bill, creating a more comprehensive overdose prevention package which enjoyed wide support. Sen. Lois Kolkhorst was the lone "no" vote in the senate, joining four House members who opposed the bill.

Now, there's just one vote left who matters: Gov. Greg Abbott. Given news this spring that the state has dramatically under-counted opiod overdoses and the unquestioned effectiveness of naloxone at saving lives, it's hard to see a downside to the governor signing it, or an upside to making this his first veto. But you never know.

For more background on these naloxone access and Good Samaritan laws, see this extensive and detailed fact sheet from the Network for Public Health Law.

Tuesday, May 12, 2015

Texas House approves non-government funded, operated needle exchange pilots

Remarkably, HB 65 by McClendon this evening passed on second reading by a 92-37 vote with no floor debate, after needle exchange had been one of the more contentious topics debated on the House floor in 2013. A majority of Republicans supported the bill (44-37) and all Democrats. 

Congratulations to Chairwoman McClendon and her staff. This was an impressive victory after the filed version of the bill faced a rocky start in its committee hearing. From there to a 9-0 committee vote to a 5-2 margin on the House floor has been quite a fascinating trek. (Your correspondent has been pleased to help them in the process on behalf of the Texas Criminal Justice Coalition.)

Now, on to the Senate, where we find out if the re-vamped bill - no taxpayer money, operated by nonprofits instead of government - receives as cheerful a welcome on the eastern side of the capitol.

See related coverage from the SA Express News, the Dallas News, and perhaps the best coverage so far from the Dallas Voice.

RELATED: Why conservatives should support TX bill authorizing non-government needle exchange pilots.

UPDATE (5/13): The bill passed on third reading Wednesday morning and now heads to the eastern side of the capitol for consideration by the Texas Senate.

Hostage crisis: Raise-the-age bill dies if Dem chubbing kills gay marriage super ban

After an inexplicable delay, Texas' "raise the age" legislation increasing the age of adult criminal culpability from 17 to 18 years old was placed on a House floor calendar with remarkable alacrity. Formally, it's on Tuesday's calendar, but they'd need to hoof it to get to the bill even by Wednesday. As of this writing, Thursday appears more likely.

Here's the rub, though: The bill in question, HB 1205, sits 10 bills behind HB 4105 banning gay marriage, which of course is already banned in Texas. I guess we're going to Extra-Ban it, or maybe place it on Double-Secret Probation.

Democrats plan a major floor fight, reported the Austin Statesman, and rumors are flying around the capitol that they may begin "chubbing" - or dragging out debate to kill bills further down the calendar - in hopes that they'll never get to HB 4105.

That would mean they'd never get to the raise-the-age bill, which the Calendars Committee placed as a hostage just behind the gay-marriage train wreck to give Dems an incentive to keep moving bills. (To raise the ante for your correspondent, even further down the calendar there are a couple of modest reform bills on the Driver Responsibility surcharge - HB 1795 by Turner and HB 2671 by Thompson - which represent the main, extant reform options on the topic this session.)

My preference: Dems needn't and shouldn't chub. Propose a few choicely worded amendments to get everybody on the record and move on to the bills they really care about. Trust the US Supreme Court and the tide of history to take care of the gay marriage issue. Instead, focus legislative efforts on topics the state can actually do something about.

Raise-the-age would be a big get for Dems. OTOH, in light of shifting public opinion, Republicans re-banning gay marriage is tantamount to a dog catching a car. They're pandering to their current base at the expense of a future one. And as a practical matter, it changes nothing. So who cares?

Grits' advice to Dems thinking about chubbing: Let the dog catch the car then get some business done.

UPDATE: Dems decide to kill the hostages.

Side with transparency in red-herring execution drug debate

The Texas Senate yesterday passed legislation to make vendor information about execution drugs secret and the House may follow suit soon, but Grits considers this a stupid, red herring of a debate all the way around.

First, there's no evidence whatsoever of credible threats against pharmacists who compounded execution drugs for the state. That's why a district judge ruled the Public Information Act applied: The premise justifying secrecy was phony from the get go.

OTOH, abolitionists want information about the drug vendors in order to pursue claims that lethal injection is cruel and unusual. But that's ultimately a dead-end argument: If lethal injection isn't constitutional, the firing squad still is.

Despite my disdain for the entire debate, in the end for me transparency trumps: The vendor information should be public because all vendor information should be public.

The court got it right. The senate got it wrong.

RELATED: See an editorial from the Austin Statesman.

Reform of 'pick a pal' grand jury system stalled, but options still available

The issue may have earned Lisa Falkenberg a Pulitzer Prize, but that wasn't enough to convince the Texas House the state's "pick a pal" grand jury system should be eliminated.

Much-ballyhooed legislation to eliminate the "key man" system of picking grand juries died in a double-barreled blast last night on the floor of the Texas House. Your correspondent happened to be in the gallery for the event, which took overconfident proponents by surprise.

As soon as the bill was laid out, it became apparent Rep. Harold Dutton didn't have his votes. First, he preemptively gutted his own bill with an amendment to give judges an option to use either system. Then he pulled the bill down entirely - or rather, postponed it to a time-certain in 2016 - after other members cabined the change to Harris County on a 73-69 vote, expanded to counties over 500,000 by an amendment to that amendment.

Chairman Dutton is also House sponsor of the related senate bill, which is already sitting in Calendars, and there are some other grand jury captions floating around. So if some of those 73 votes can be flipped - perhaps not an impossible task - he can try again.

See coverage from the Houston Chronicle and the Dallas News.

MORE: At the Houston Chronicle, Lisa Falkenberg laid the debacle at Harold Dutton's feet:
I blame ego. And I blame the Democratic sponsor of the bill's House version, Dutton, for its catastrophic flop.

More than a month ago, a similar bill to end the Texas pick-a-pal system flew out of a Senate committee and passed the full Texas Senate, which this session is considered to be the more conservative body. It passed 31-0, garnering even the support of the Lt. Gov. Dan Patrick, a tea party favorite from Houston whose son is a Republican Harris County judge.

How? Well, the sponsor in that case, Sen. John Whitmire, D-Houston, who heads the Senate Criminal Justice Committee, reached across the aisle for bipartisan support. With one concession that lets judges add names to the random pool of grand jurors, Whitmire gained the support of Republican judges and even state Sen. Joan Huffman, R-Houston, a former prosecutor who sometimes stands in the way of criminal justice reforms.

Even Republican Harris County District Attorney Devon Anderson came out supporting Whitmire's bill, followed by the Houston Police Officers' Union.

Instead of taking the baton from Whitmire as soon as the Senate bill hit the House, Dutton started fresh with his own bill. He wouldn't explain to me why, except to say "I like my version better." I have to wonder if he also liked the look of his own name and bill number.

Dutton's version included a giant concession to a few judges he said voiced "concerns." Although the bill would have made random grand jury selection the default in Texas, it would have allowed judges to use pick-a-pal if they could express a good reason. That's very close to the current system we're trying to get rid of.

In a phone interview Tuesday, Dutton seemed unaware of the smaller concession Whitmire had made that addressed the same concerns from judges. He also didn't take kindly to Whitmire's suggestion of finding other surrogate sponsors in the House.

"He's free to do whatever the hell he likes," Dutton said. "This is the House over here. He runs the Senate, maybe, but he doesn't run the House."

Whitmire, meanwhile, has vowed to press on and to enlist other veteran Houston House members, such as Reps. Senfronia Thompson and Sylvester Turner, to help.

And Dutton does need help. It was obvious that he hadn't done his homework on the legislation. He hadn't worked the floor. He hadn't educated members on his bill. Even some members who tried to aid him in the debate struggled with basic facts of the bill and missed crucial talking points.

"He had not worked the delegation. He did not recruit people to help. It was horrible," Whitmire says.
That may or may not be true, but assigning blame won't pass the bill. In three weeks, the 84th session is over, and it will end without grand jury reform if supporters of the idea can't work together to accomplish it.

Sunday, May 10, 2015

Why conservatives should support TX bill authorizing non-government needle-exchange pilots

Though there are now many delayed bills ahead of it which weren't heard on Friday, in theory HB 65 by McClendon will be up for a floor vote on Monday in the Texas House of Representatives. Or perhaps it will now be delayed until Tuesday if debate on the bills before it go long.

Either way, there's reason to think needle-exchange legislation could succeed this session when it's failed in the past. In 2013, an earlier version of McClendon's bill failed to pass the House on a tight 63-70 vote following an unusual bout of parliamentary back and forth.  At root, opponents objected to using taxpayer money of any sort to pay for needles for addicts.

New bill, new dynamic
Which brings us to this year's bill: In committee, a faction of Tea Party legislators combined to block the original version, which would have allowed hospital districts or public-health departments in seven pilot counties (Harris, Dallas, Bexar, Travis, El Paso, Nueces, and Webb) to operate taxpayer funded needle exchanges. In its stead, they demanded a version in which spending taxpayer money on needle exchange is forbidden and private charities operate the program. That version passed out of committee unanimously, with some of the most conservative members of the Texas House (Burrows, Schubert, Spitzer, Stickland, and Tinderholt) voting to approve it.

Find below the jump the text of a flyer I created on behalf of my employers at the Texas Criminal Justice Coalition making the case, "Why Conservatives Should Support CSHB 65 Authorizing Non-Government Needle Exchange Pilots." The themes came from your correspondent visiting with conservative offices that supported the bill in committee and mining the reasons why each of them voted for it, using to the greatest extent possible their own rhetorical framing and language. Check it out.

* * *

Thursday, May 07, 2015

Volteface on pot by committee extends to full-blown legalization

Who knows what it means that the House Criminal Jurisprudence Committee yesterday voted out Rep. David Simpson's treat-it-like-tomatoes legalize pot bill on a 5-2 vote?  (See MSM coverage.) That's one more vote in favor, ironically, than Joe Moody's HB 507 reducing low-level possession to a civil penalty was able to muster! And keep in mind, at one point last week, Moody's bill was actually voted down in committee, then resuscitated, with the chairman switching his vote on a motion to reconsider. Grits had considered it a low point in the session when the chairman seemingly scuttled the bill by bringing it up for decision while its yes votes were out of the room.

So it was that the committee went from actively snubbing marijuana reformers to endorsing full-blown legalization in just a little more than a week. What a wild ride!

Sure, they basically passed it too late to matter. It seems unlikely the Calendars Gods will smile on Simpson's bill, as much as I might like it. But then, perhaps I shouldn't project: I didn't think Chairman Abel Herrero would give the legislation a vote, much less vote for it himself. Since Calendars Committee Chairman Todd Hunter is on the Criminal Jurisprudence Committee and voted for both bills, I suppose anything's possible with his support. HB 507, though, probably represents the version of reform which presently has the votes to pass on the House floor, at least if it can get set for a floor vote before the deadline. Right now, both bills are in the netherworld between the committee vote and actually becoming eligible for consideration by the Calendars Committee, and every day's delay makes it less likely either will be heard.

The vicissitudes of the marijuana bills' story demonstrate in part why Grits' blogging has lightened up in the last week or so: Things are moving so fast at the Legislature (in a hurry-up-and-wait kind of way) that what seems true today may not be true tomorrow. Trying to write about them in the moment can be like skeet shooting with a handgun.

MORE: The Houston Chronicle offered a similarly pessimistic assessment about the bills' prospects, at least in the short term. At this point (5/9), even if the bill were put on a calendar in the final days, it's probably too late for it to be heard in 2015 on the House floor. The House adjourned for Mother's Day weekend with five legal-sized pages worth of bills left unheard, so next week's calendars will all be pushed back substantially. Never say never, but these bills have now entered extreme long shot territory.

Wednesday, May 06, 2015

Bill updates during a busy week

Grits has been too busy to blog much this week but here are a few updates on bills we've followed this session.

Hope springs eternal and thus the Texas House Criminal Jurisprudence Committee on Monday passed out several more House bills which now face an uphill climb to make their way into the crush of legislation the lower chamber will hear between now and May 14. Technically still alive, these bills are on life support. It'll take a few days for the bills to even get to the Calendars Committee, and by then there won't be many if any realistic opportunities for them to receive floor votes without a lot of luck. Still, getting voted out of committee is better than dying in committee.

Civil penalties for pot. Rep. Joe Moody's HB 507 creating civil penalties for low-level pot possession was resurrected on a motion to reconsider and passed out of committee 4-1 with 2 absent. The bill had earlier been voted down when the chair conducted a vote while the members supporting it weren't in the room. See coverage from the Houston Chronicle.

Decreasing punishments for certain nonviolent offenses. Rep. Senfronia Thompson's HB 3326 reducing certain nonviolent misdemeanor and state jail felony punishments passed out of committee 4-1 with 2 absent. This bill would save the state $163 million in the coming biennium and nearly half a billion dollars over five years.

However, not all the bills passed in House Criminal Jurisprudence Monday face such long odds:

Update property offense levels to account for inflation. HB 1530 was an exception to the judgment that bills voted out Monday face long odds of passage. That's because the senate companion is already over and has been referred to the same committee, so the unanimous committee vote for the House bill will translate into support for SB 393.

Also, to update an earlier Grits post:

Raise the age.  HB 1205 finally made it from the committee office to the Calendars Committee, but there remain a lot of bills seeking a hearing in these final days. It'll need some leadership help or a lot of luck to make it at this stage. (Update: This bill was quickly placed on a calendar and it's highly possible the Lege will get to this bill before the 5/14 deadline.)

On a more sanguine note, several good bills have made their way onto House floor calendars:

Pretrial hearings. HB 452 by Alonzo moving up the timetable for pretrial hearings has been set for a House floor vote on Friday.  This is a really good (if perhaps under-appreciated) bill that will save  courts time and money.

Asset forfeiture. There's a bill on Friday's floor calendar, HB 530, with a caption big enough to carry some other asset forfeiture legislation related to reporting requirements as amendments. Legislation to raise the standard by which assets may be seized from "preponderance of the evidence" to "clear and convincing" evidence remains in Calendars.

Needle exchange. Coming off an unlikely 9-0 vote in the County Affairs Committee, HB 65 by McLendon authorizing needle exchange pilots in seven counties has been scheduled for a floor vote Monday. The version that came out of committee forbids government funding and has authorized nonprofits instead of government agencies operate the programs.

As always, this list is non-comprehensive - just a sampling of bills that merit notice, not by any stretch a complete list.

Sunday, May 03, 2015

Indigent defense, civil commitment and the Texas surveillance state

No time to delve into these issues in-depth, but fyi:

Finally ... the conservative case against pandering to police unions

Interesting to see a meme I've heard from several Texas conservatives this year repeated in the pages of the New York Times. See Ross Douthat's "Our Police Union Problem," in which he declared that there is "a strong argument that the rise of public sector unions represents a decadent phase in the history of the welfare state, a case study in the warping influence of self-dealing and interest-group politics." However, he lamented, "this argument also applies to a unionized public work force that conservatives are often loath to criticize: the police." He concluded by challenging conservatives to finally "reckon with the ways in which police unions, no less than other interest groups, can align against the public that their members vow to serve."

Douthat also linked to a couple of related conservative critiques published in December, one of which I'd seen and one of which I hadn't.

Grits links to these items not because of Texas-specific content - there isn't any. But a shift in the political balance of power which would naturally result from the sort of recalibration Douthat envisions within the conservative movement is a trend with specific implications for Texas politics.

Texas doesn't yet have conservative politicians who've dared to openly take on the police unions. We haven't seen the Texas Public Policy Foundation, for example, directly challenge union power the way they routinely do with teachers' unions. Increasingly, though, one can hear the rumblings of discontent rising inexorably closer to the surface. Especially where unions bypass traditional labor concerns to engage on policy issues (e.g., opposing civil penalties for pot), there's a growing sense that their reach has exceeded their grasp.

In the near term - say, over the next biennium or two - I could see the conservative, anti-union view associated with the above-linked essays becoming infused within the grass roots base of the party, with the more centrist wing and statewide pols siding with the police unions. That would leave Democrats with a precarious choice between their union sympathies and their base - a choice that's even harder for them in red states where the union movement is weak.

It's always been hypocritical to blast public employee unions but exempt police unions from the same critique. What's changing is that voices within the conservative movement are for the first time openly challenging that exception.

It's remarkable the extent to which the political landscape on criminal justice has changed since the turn of the century when police unions in Texas enjoyed virtual veto power over criminal justice legislation. That's not true today, though they still enjoy undue deference. But if Douthat's views became widespread within the GOP base, it would dramatically alter the already shifting political terrain facing criminal-justice reform.

Saturday, May 02, 2015

Raise-the-Age Shenanigans

WTF?

Texas' much-ballyhooed raise-the-age legislation - HB 1205 by Dutton increasing the age of adult criminal culpability in Texas from 17 to 18 - passed unanimously out of the House Juvenile Justice and Family Matters Committee on April 8th. But, as of today, with just ten days left until the last House calendar, the committee report still hasn't made its way to the Calendars Committee, which sets bills on the agenda for a vote by the full House.

Grits cannot recall in my experience a committee report ever taking longer to get from the originating committee to Calendars after a positive vote. Usually, a week is considered a long time. More than that and in my experience somebody is f%^#ing with you. But who? It's the committee chairman's bill! Grits' sources tell me the delays stem from Legislative Council's apparent inability to compile a valid bill analysis, which hardly seems credible. Yes, they're understaffed, but nothing justifies that long a delay!

Barring an intervention by leadership, this staggering hiatus probably killed the bill. Grits can't say who's behind this unprecedented postponement, but I call shenanigans!

UPDATE: Amazing what an effect a little sunlight can have. Today (5/4) the bill finally made it from the Juvenile Justice committee to the Committee Coordinator who will transmit it to Calendars. With a mountain of luck, in theory there's still time for the bill to make it onto the House floor. As a practical matter, though, probably not unless leadership in the lower chamber decide to make it a priority. One day, it'd be fascinating to learn the backstory behind this mess.

A non-comprehensive survey of good crimjust bills still moving

It's May of an odd numbered year which means wheat and chaff are separating when it comes to criminal-justice reform legislation from Texas' 84th session. It's now possible to see much more clearly which stand-alone bills still have a chance to pass. (N.b., where nothing has changed from last week's assessment I haven't updated all of those bills.) Anything, of course, can be revived as an amendment if germane to another bill's caption, so Grits won't speculate on what bills appear dead. Instead, let's focus on reform bills still living. Here's a non-comprehensive survey of good bills still moving.

The last day for the full Texas House to consider House bills on second reading is May 14 and the bills languishing in the Calendars Committee waiting for a floor vote are stacking up. Let's start by looking at a few bills that need a timely House floor vote:

Warrants for cell-phone location data (HB 2263): In 2013, this legislation was set on the House Calendar too late to actually get a vote. It was later amended to another bill on a 126-4 vote, only to have the (since-unelected) senate author strip the provision out. This year, with the bill out of committee and already in Calendars, there's plenty of time for HB 2263 with its 96 joint and coauthors to receive a floor vote and I'm modestly sanguine it may get one before the clock runs out. (Special thanks to committee clerk Miguel Liscano and his team for cranking out the committee report in record time!) Heck, given the importance of the topic and widespread interest among members, IMO the bill deserves to be set on the Major State calendar. For more background, visit the Texas Electronic Privacy Coalition.

Asset forfeiture reform (HBs 472, 249, and 1975): These bills passed out of committee on Thursday, but they had the votes to get out of committee the day they were heard. Instead, Chairman Abel Herrero, as has been his pattern both sessions he's been chair, delayed most reform bills until the last minute, significantly jeopardizing their chances. Another, less controversial forfeiture bill, HB 530, was heard with the others but passed out of committee earlier and may yet make it to the floor. It authorizes forfeiture money to be used for scholarships for children of peace officers killed in the line of duty, and also includes some reporting requirements. That latter aspect means that portions of the other bills related to reporting could fit as amendments onto HB 530 on the House floor. On the Senate side, though, SB 95 remains stalled in committee, casting a shadow on these bills' prospects even if they make it out of the House. Still, alive in May is better than most bills filed at the Texas Legislature, so you never know.

Pretrial hearings (HB 452): This bill would require pretrial hearings to be held earlier in the process and makes so much practical sense from the standpoint of logistics and judicial economy that it almost hurts. Rep. Alonzo had done his homework and there was no opposition to the legislation, which was one of the first bills heard in the House Criminal Jurisprudence Committee. But the bill was delayed for more than a month before Chairman Herrero let it out of committee. This is a terrific bill and I'm still hopeful the Calendars Gods will smile upon it and send it to the House floor sooner than later. The fact that Mr. Alonzo is himself on the Calendars Committee gives me some small measure of hope that the bill may still make it to the floor in time.

Ad seg reform (HB 1084): The House Corrections Committee this week voted out legislation to require additional reporting about solitary confinement (known by the euphemism "administrative segregation" in Texas prisons) and a process for recommending reforms that would reduce its use. A small measure but better than nothing. This deserves a prompt floor vote.

Bulk records accuracy (HB 2700): This important but little-noticed bill passed unanimously this week out of the House Government Transparency and Operations Committee. It would require clerks and criminal justice agencies to redirect all requests for bulk criminal records, B misdemeanors and up, to the Department of Public Safety. That would save the locals money and provide for greater consistency, eliminating reports about cases which were dismissed or which never reached a denouement. Plus, since DPS has systems in place to respond to monthly bulk records requests, it won't cost them much, if anything, to perform the function. See a fact sheet (pdf) from my colleagues at the Texas Criminal Justice Coalition for more background.

Bond for blue warrants (HB 3329): This Sheriff's Association bill, which House Corrections voted out this week, would let county judges authorize bail for parolees picked up on technical violations. The years-long complaint is that parole officers use county jails for "jail therapy," keeping their charges locked up for a while when they have no intention of actually revoking them back to prison. Whether that's true on any broad scale, the meme is ubiquitous. Yet seemingly every year this bill dies right here: Awaiting a vote on the House floor. Maybe this year they'll finally get over the hump.

Syringe exchange, Tea Party style (HB 65): The version of Ruth McLendon's needle exchange bill that came out of the County Affairs Committee looked a lot different than when it went in. Changes necessary to appease Tea Party Republicans on the committee stripped out all public funding and forbade government from operating pilot syringe exchange operations, instead having counties and hospital districts authorize outside charities to perform the function. (As one conservative staffer said to me, the bill reduces government's role and "lets charities do what charities do best.") With those changes, the bill passed out of committee unanimously. I'm anxious to find out what the bill's reception will be like on the House floor, assuming the Calendars Committee will give it a vote. This is quite a different profile for the issue than the Lege has seen in past sessions.

Looking beyond bills in the House Calendars Committee, here are several bills your correspondent is watching which still have an excellent chance of passage and deserve full-throated support:

Updating theft value thresholds (SB 393): Value thresholds for theft in Texas haven't changed since 1993. So, because of inflation, it becomes a felony to steal less and less stuff every year. This bill, which has been passed by the full Senate, updates the theft thresholds to roughly match where they'd be if they tracked inflation. It would save money and significantly reduce incarceration pressures, especially at Texas state jails.

Good Samaritan/overdose prevention (HB 225): This bill would expand access to opiod antagonists and create a defense to prosecution for low-level drug crimes for people who call 911 and cooperate with police. The House bill passed the Senate Criminal Justice Committee unanimously and was recommended for the local and consent calendar. It appears on a fast track and could head to the governor very soon.

Diligent participation credits for state jail felonies (HB 1546): This House bill is scheduled for a hearing in the Senate Criminal Justice Committee on Tuesday, but its Senate companion already passed so there shouldn't be too much additional controversy. This bill would generate $81 million in savings in the next biennium and nearly a quarter-billion dollars in savings over five years by encouraging participation in programs to reduce recidivism. It should be a priority for the less-government, fiscal conservative types in the eastern chamber.

Innocence Commission (HB 48): It was a love-fest for Rep. McLendon on the House floor when the bill passed, but it received a chillier reception two years ago in the Senate. IMO this is the best version of the bill McLendon's ever presented. And with the Lege having enacted nearly all of the recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions, it's time for a fresh evaluation. It's not as though all the causes of false convictions have been extinguished. MORE: See good coverage of this bill from the Houston Chronicle.

Indigent representation and forensic writs (SB 1743): This legislation would expand the duties of the Office of Capital Writs to include "forensic" writs under Texas' new junk science writ passed last session. It came out of the Senate Criminal Justice Committee this week unanimously and has been placed on the intent calendar.

Reentry guide (SB 578): About 29,000 of the 70,000 or so inmates released from TDCJ each year do not qualify for the agency's Reentry and Integration Division programs. This senate bill, which has already passed out of the House Corrections Committee, "requires TDCJ to identify organizations that provide reentry and reintegration resources guides and to collaborate with those organizations to make those resource guides available to all inmates." It appears pretty likely at this point to pass.

Expanding access to DNA testing (SB 487): Rodney Ellis' bill pushing back against prosecutor recalcitrance over post-conviction DNA testing is over from the Senate and ready for the House Criminal Jurisprudence Committee to take it up. I don't know how many times we must perform this dance before prosecutors and the Court of Criminal Appeals get it through their heads that the Lege wants convicted felons to have access to potentially exonerating post-conviction DNA testing. Maybe this time will be the charm.

Grand jury reform (SB 135): This senate bill eliminating the pick-a-pal grand jury system is already out of committee in the House. Don't expect it to get a floor vote before the House is done with HBs, but I wouldn't be surprised if it's one of the first SBs heard thereafter.

Decriminalizing truancy (SB 106): That this is the first SB heard in the House Juvenile Justice and Family Matters Committee next week gives the sense this bill may be fast-tracked. 

Regulating body cameras (SB 158): This bill's referral to the House Select Committee on Emerging Law Enforcement Issues doesn't bode well for Sen. West's bill. Not only did that committee fail to approve companion body camera legislation, it hasn't passed much to speak of at all and none of what it has passed has received a floor vote. Though it cannot be proven, at the capitol the committee was widely considered a vehicle for killing legislation from the aftermath of the Ferguson episodes last year, and with some exceptions that perception has held. Maybe West's bill will be the case that disproves, or at least mitigates, those rumors.

As always, this list is not remotely comprehensive. It's just a first-cut look at what's still standing after a brutal week of last-ditch committee votes. Let me know what other bills readers are paying attention to in the comments.