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 achieves 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.

Get rid of specialty license plate program regardless of court case outcome

The state of Texas won't approve a specialty license plate emblazoned with the Confederate battle flag and has taken its case all the way to the US Supreme Court, which heard oral arguments this week. As a proud son of the South who grew up with that flag hanging on my bedroom wall, Grits hopes the state loses ... but maybe not for the same reasons as the Sons of Confederate Veterans.

To be sure, seeing the word "Texas" emblazoned above the stars and bars on official license plates would be ugly and dispiriting. But more to the point, I'm sick to death of the specialty license plate program, a purely symbolic diversion which seemingly takes up more legislative attention than quite a few real-world problems like, for example, the 1.4 million godforsaken drivers who've lost their licenses thanks to the Driver Responsibility surcharge. It drives me crazy when legislators waste precious time on this sort of fluff then never get around to the things that affect real people.

An attorney for the Sons of Confederate Veterans told the court that, if their side won, there would be no justification for banning "a swastika," an "outright racial slur," or even the word "jihad" from Texas license plates. Wouldn't that be special?! Most people agree that, if that were the case, the state would likely eliminate the program altogether. To which I'd reply, "Please, and thank you!"

That's in fact why I hope the state loses. Not only do I think it's the right outcome on First Amendment grounds (along with letting Nazis march in Skokie, etc.), if it happens, then the Texas Lege could get rid of the damn specialty license plate program and be done with it. Let those longing to turn their vehicle into a canvas for self expression - both drivers and legislators - purchase bumper stickers and leave state government out of it.

Tuesday, March 24, 2015

Steve Blow's belated epiphany, or, How the press stopped 'nodding along' when police sublimate service to self

After reviewing video of Dallas police shooting a mentally ill man "nonchalantly holding a screwdriver in his hands," Dallas Morning News metro columnist Steve Blow in this column concluded that perhaps he should “quit nodding along and question the maxim" that a cop’s main duty is to “go home to his family” every night. I'm delighted to read Blow acknowledge years of “nodding along” (his readers, meanwhile, were “nodding off”). Everyone who has spent so many years praising the naked emperor's wardrobe on this question should be so forthright.  So let’s celebrate his belated epiphany that cops:
have willingly taken a job that involves personal risk. It also requires split-second decision making that must go beyond simple self-preservation.

If going home safely becomes the overriding priority, that can become another way of saying, “Shoot first and ask questions later.”
Despite that realization, the column lamely concluded, "Of course we want every officer to go home safely. But it can’t be their only thought." So what else should they think about when making a "split-second decision"? How should they prioritize their public safety duties vs. competing personal safety concerns? ¿Quien sabe? What a muddled mess! That's an awfully mild takeaway if the problem we're trying to address is "shootings in situations that seemed to pose no immediate threat to officers."

Having only just recognized that he's been "nodding along" for years to a stream of self-serving apologia, perhaps Blow can be forgiven for failing to acknowledge that cops' jobs aren't nearly as dangerous as the media, for whom dramatizing workaday crime coverage is a money making staple, would like to portray. In 2012, for example, officers died on the job at a rate of 14.9 per 100,000 employees. That's comparable to the rates for groundskeepers (13.9), taxi drivers (14.9), and construction workers (17.4), but a lot less than, say, garbage collectors, who died on the job in 2012 at a rate of 27.4 per 100,000.

Garbage collectors are public servants too. What in the world would we do without them? (Thought questions for the comment section: Would society deteriorate faster if police officers or garbage collectors stopped doing their jobs tomorrow? Why?) Many years, a majority of police officer deaths on the job stem from traffic accidents. Why? The same reasons taxi drivers have a relatively high on-the-job death rate. Patrol officers drive a lot and many don't wear their seat belts, a pattern which boosts the overall deaths number significantly.

So yes, I agree with Mr. Blow that the press should quit "nodding along" and openly discuss the fact that, "If self-preservation is the first and foremost priority of a police officer, then you get what we have seen in recent months and years — a series of unsettling police shootings." While they're at it, the media could revisit the ubiquitous first-order premise that police officers' jobs are so risky that lesser mortals cannot contemplate the dangers they face.

Now awake to these larger questions of duty and public service, perhaps in next week’s column Mr. Blow will demonstrate the same awed deference to our state’s brave garbage collectors. After all, to a measurably greater extent than peace officers, those guys put their lives on the line every day.

Sunday, March 22, 2015

On setting priorities, judicial DWIs, and other stories

Here are a few odds and ends which merit readers' attention but didn't make it into individual posts this week:

Judge admonished for abuse of position
Appellate court judge Nora Longoria (13th Court of Appeals) was admonished by the State Commission on Judicial Conduct, which found that using her position to try to avoid a DWI arrest in July “cast public discredit upon the judiciary.”

RELATED (3/23): Judge Gisela Triana in Austin was arrested on suspicion of DWI Friday night, but appears not to have pulled the 'don't you know who I am?' routine that got Justice Longoria and Travis County DA Rosemary Lehmberg in trouble. It'll be interesting to see what Democratic primary voters in Travis County do with that. To me, the lesson which can be drawn by public officials from Lehmberg and Longoria's travails so far is this: Politicians can frequently survive a DWI conviction while in office, but one's demeanor and decisions in the minutes and (worst case) hours after an officer pulls the driver over can end up becoming the most important of their career. These days, the event is likely to be recorded, video and voice, and in Texas those are open records after a conviction. So, from that moment forward, everything that happens is an audition for their next opponent's campaign commercial. Most police cars didn't have dashcams when I performed opposition research professionally (Texas voters approved $18 million in bonds in 2003 to pay for them in most police departments), much less bodycams, which are increasingly common (and subject of legislation to be heard this week in the Texas Senate Criminal Justice Committee). But if I were doing that work today, running down videos of police encounters would be an indispensable method.

Driver surcharge doesn't make cut on budget priorities, again
The Lege can always find the money to pay for the stuff they prioritize, but sadly, abolishing the Driver Responsibility surchrge isn't one of those things this year, budget surplus or no. State Rep. Larry Gonales didn't even file his bill to abolish the surcharge this year - though Sen. Rodney Ellis filed such a bill in the Senate - because nobody could "find" the money to replace the roughly $230 million the surcharge brings to the hospitals and state general revenue fund combined. Once again, we'll have to settle for half a loaf, if anything.

The cost of incarcerating the low-risk elderly
At what point does incarcerating low-risk, elderly prisoners fail to pass a cost benefit analysis. Research consistently shows that "all but the most exceptional criminals, even violent ones, mature out of lawbreaking before middle age, meaning that long sentences do little to prevent crime," reported the Marshall Project. To really cut a major dent in Texas' prison population - the long-timers, not just the low-level churn - there'd need to be a way to weed out just these folks.

New tech, new questions
"Is a lifetime of involuntary GPS monitoring unconstitutional?," asked Ars Technica?

Saturday, March 21, 2015

Floor display on 'responsible marijuana policy' at TX capitol

Here are a couple of pictures of a display erected by Texans for Responsible Marijuana Policy which currently resides on level E2 of the Texas capitol and drew significant attention from passersby when I was there this week:

And here's a floor-level view:


Photos via Heather Fazio.

Friday, March 20, 2015

Pragmatic acquiescence vs. nagging presentiments about roadside ticket collections

Grits remains torn about state Rep. Allen Fletcher's HB 121, which allows drivers with outstanding Class C warrants stopped on the side of the road to pay the officer with a credit or debit card to avoid being taken to jail. The bill was heard Wednesday evening in the House Criminal Jurisprudence Committee and left pending. The committee substitute (said Vikrant Reddy of the Texas Public Policy Foundation, testifying in favor of the bill) makes it clear that collections may only occur for cases which have already been adjudicated - cops can't collect fines for tickets they're writing at the same traffic stop.

Part of me is incredibly sympathetic. Certainly it's better for drivers who can afford it if they can pay up, avoid arrest, and go on their way. Grits has a credit card and, if I'm busted for a ticket I forgot to pay, no doubt that'd be preferable. For those who can't pay, they're in the same situation they would be in otherwise. So there's an argument to be made that the outcome is no worse for drivers who can't pay and improves the world for drivers of greater means. In that sense, it's a regressive policy, but at least one that would reduce arrest and incarceration totals overall.

But here's the part that nags at me (and these concerns were touched upon if not fully elaborated by Chris Howe, the lone witness against the bill, on Wednesday night): More than ten percent of Texans at any given time have outstanding arrest warrants, a number that grows over time because of the vicious cycle created by the Driver Responsibility surcharge. That's a lot of folks.

Meanwhile, new law enforcement technology now being deployed by local agencies - specifically, hand-held and vehicle-attached license plate readers - could and IMO will facilitate agencies which deploy that tech using it to have their traffic-enforcement officers cherry pick drivers with outstanding warrants instead of looking for current, real-time traffic violations.

So, if more than ten percent of drivers have outstanding arrest warrants, that's a near-endless sea in which they can fish for roadside revenue generation, diverting focus from traffic safety in the pursuit of the Almighty Dollar. Fletcher's main witness was a former county judge from a 17,000 person county who said 1/5 of their county budget - around $4 million per year - came from traffic fines. Being able to mulct drivers on the side of the road, she imagined, would have boosted their coffers even more.

And I'm sure she's right. The fiscal note says the bill would "have a positive fiscal impact on counties" and "increase the collection rate of court costs and fees for defendants of misdemeanor cases and those issued warrants for capias pro fines," though because "the number of defendants who would choose this option cannot be determined," LBB declined to estimate how much more might be generated.

Grits doesn't suppose maximizing revenue generation is Rep. Fletcher's main intention; he's an ex-cop honestly trying to help people avoid arrest, and it's a decent idea as far as that goes. But changes in technology create possible, unintended consequences which at least merit consideration. Are there enough departments deploying license plate readers to cause concern? Will they use them in such a fashion? How will anyone know? Is it possible to monitor - or better, measure - any shift in on-the-ground police priorities resulting from the new economic incentives created by the bill? ¿Quien sabe?

Maybe I'm thinking too hard about this; HB 121 might be a fine idea and my nagging presentiment may be unjustified. Maybe. Let me know what you think in the comments.

Bar alleges DA misconduct in Willingham case, bad closed-records bill, auditing forfeitures, testing for steroids, diligent participation credits (federal and state) and other stories

Here are a few odds and ends that deserve readers' attention but didn't make it into individual posts during a busy week:

State bar accuses Willingham prosecutor of misconduct
Reported the Marshall Project, "the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters." The bar "accuses [former Navarro County DA John] Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana." From the bar complaint: "Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel. Specifically, [he] failed to make timely disclosure to the defense details of an agreement for favorable treatment for Webb, an inmate, in exchange for Webb's testimony at trial for the State."

SA4 case headed toward denouement
Again from the Marshall Project, a review of the San Antonio Four case and the difficulty of evaluating the veracity of child accusers who recant. Wrote Maurice Chammah, the SA4 cases "fall into an increasingly visible category of prisoners who have been freed due to evidence of a wrongful conviction but have not been formally declared 'innocent' by courts." This was also a case where Texas' new junk science writ came into play.

Making state employees DOB secret invites unchecked corruption
State Rep. Cindy Burkett has filed legislation to disallow people from accessing state employees birth dates under open records requests, the Dallas News reported, but this is a terrible idea that would dramatically reduce accountability in state government. As a practical matter, for an investigative reporter, a campaign opposition researcher, private investigators, citizen activists, or any independent fact finder investigating state government, date of birth is the main way one can viably distinguish individuals, especially if they have common names. (Is "Randy Jones" from the signature line of a state contract the same person as "Randall Jones" who seems to have received favorable terms on a land deal with the same company? You need a DOB to tell.) Remove that tool and much of the old-school paper trail work involving public information requests and courthouse records becomes nigh-on impossible. I understand the privacy-based impetus behind this bill, but it's profoundly misguided.

State auditor reviewing Dallas DA forfeiture expenditures
The State Auditor is investigating the asset forfeiture funds of former Dallas DA Craig Watkins following allegations that he improperly used the account to settle a civil suit over a car wreck he caused which included a gag order. The auditor's report is expected in May, reported the Dallas News.

Prison riot spurs busted contract
The feds are ending a contract with the South Texas prison where immigration detainees recently rioted, reported the Houston Chronicle. See more from Texas Prison Bidness.

State to stop steroid testing HS athletes, still no mandate to test cops
I've never understood why Texas chose to test high school athletes for steroids - despite little evidence there's a big problem with their use at that level - but never chose to test police officers, for whom there's ample evidence of significant steroid use. (To their credit, a few departments including Dallas and Arlington PD have begun testing on their own.) The state is finally going to ditch testing for high school athletes; I still think they'd expose a lot more problems by spending a fraction of that money testing police officers.

Cornyn backs aggressive sentence reductions for program participation, will Texas?
See an update on federal sentencing reforms being pushed by Texas Sen. John Cornyn. Under his bill, "Medium and low risk prisoners could earn a 25 percent sentence reduction or transfer to a halfway house or home confinement through completion of programs." That's slightly more generous, even, than the (up to) 20 percent sentence reduction which would be available to state jail felons for "diligent participation" in programming under SB 589 by Sen. Jose Rodriguez, which was heard on Wednesday in the Senate Criminal Justice Committee. Perhaps Sen. Cornyn endorsing an even more aggressive version of the same idea will help Mr. Rodriguez's cause.

Stingrays and non-disclosure agreements
The New York Times this week ran a feature on the worrisome requirement that local police departments which by "StingRays" and other surveillance devices from the Harris Corporation must file non-disclosure agreements which they claim trump open records laws or, in the case of Houston PD, even a duty to disclose to prosecutors how they use the devices. These issues will soon be prominently raised in Texas as Dwayne Bohac's HB 3165, which would require law enforcement to get a warrant to target an individual's phone using the device. His bill also trumps these sorts of NDAs, making information about Stingrays subject to the usual provisions of the Public Information Act.

How jailhouse snitch testimony can 'backfire,' even with corroboration
Vice.com has a thoughtful discussion of problems with overuse jailhouse informants, even in states like California which require corroboration of their testimony (a provision, writer Kevin Munger could have added, which Texas passed two years before the Golden State).

Wednesday, March 18, 2015

Coin flip justice: Prosecutors threaten property rights

On Wednesday, your correspondent testified on behalf of the Texas Criminal Justice Coalition in favor of SB 95 by Sen. Juan Hinojosa which would raise the standard under which the state can seize assets without a criminal conviction under the state's civil forfeiture laws.

Hinojosa's legislation would require the state to provide "clear and convincing" evidence the property was associated with criminal wrongdoing instead of the current "preponderance of the evidence" standard (more likely than not). The bill was heard yesterday in the Texas Senate Criminal Justice Committee. Video is here; it's the first bill up. See coverage from the Dallas Morning News.

Remarkably, there was really only one opposition argument presented against Hinojosa's bill, and it took the form of a threat. Prosecutors told the committee that, if the Legislature insisted they only seize property when evidence that it was used in a crime is "clear and convincing," they would ignore that directive and seek forfeiture under a federal administrative procedure which provides fewer due process rights. The reason they don't do that now is that the feds want a 20 percent cut and don't typically process the smaller cases of a few hundred dollars the way state prosecutors are wont to do.

Grits found that position outrageous and was even more astonished that senators didn't seem affronted by being told, in essence, "If you insist we can't violate Texans' property rights under state law we'll cooperate with Eric Holder and the Obama Administration to go around you." Instead, some of them piled on with rhetoric about how greedy the feds were, how much DOJ hated due process, and treated federal forfeiture in general like a bogeyman that should scare legislators into acquiescing to whatever prosecutors wanted.

Even so, nobody made the claim that "preponderance of the evidence" is the better standard because they thought the state should be able to seize people's property when it's "more likely than not" it was associated with a crime. I think that's because there's really no good argument to support that view that any responsible, morally centered adult is willing to make in public. As I told the committee, a "preponderance" standard means that, if the chances are a scintilla above a coin flip, the state wins, and the government owns the coin. If it was your property, it wouldn't seem like too much to ask that the government provide "clear and convincing" evidence it was used in a crime.

In any event, there's an easy solution to the dilemma posed to the committee by this sort of prosecutor defiance. State Rep. Bill Zedler filed legislation this year, HB 2623, which would disallow state prosecutors from using federal forfeiture unless the amount is over $50,000, it's an interstate crime, or the property may only be seized under federal law.

If the committee simply amended SB 95 with the text from Mr. Zedler's bill, it would fully resolve all the concerns expressed yesterday and ensure that Hinojosa's legislation would actually provide the protections intended, and to which most of the committee (except Sen. Joan Huffman, who outright opposed the bill), seemed sympathetic.

The only other concern, expressed in passing, was that changing the standard could reduce forfeiture revenue to counties. But all the police and prosecutor interests who testified claimed that the overwhelming number of forfeitures - 99 percent, a San Antonio PD cop claimed - involved criminal convictions, so in those cases there's more than "clear and convincing" evidence and there would be no problem using forfeiture under the higher standard. Sen. Charles Perry said his local DA had told him a similar number for the proportion of forfeitures in Lubbock accompanied by criminal convictions.

To be clear, I don't believe for a second that it's true 99 percent of forfeitures involve cases where there's a conviction. The only reason they can get away with saying that is that there's no detailed reporting that drills down to that level of case detail, an issue other bills in play at the Lege this session may address. But if law enforcement can be taken at their word that nearly everyone with  assets seized are convicted, the budget worries entirely dissipate. Those cases will always meet a clear-and-convincing standard. In that sense, their arguments over raising the standard (that nearly everyone affected are convicted criminals) undermined the claim that forfeiture budgets would drop. Both can't be true.

In any event, the only cases where the state might not get as much revenue under Hinojosa's bill are situations where they can meet the slightly-better-than-a-coin-flip standard but not a "clear and convincing" one. And if the Texas Legislature decides the latter standard should prevail, perhaps prosecutors should abide by that dicta instead of immediately seeking to undermine and bypass the law. Or if they won't, perhaps the Lege should just make them.

RELATED: From Unfair Park.