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 toditch 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.

TUESDAY, MARCH 17, 2015

Secret settlements, judgments at TDCJ totaled millions

Every legal settlement and judgment paid by the Texas Department of Criminal Justice in recent years has been deemed confidential according to a report over the weekend from Eric Dexheimer and Andrea Ball at the Austin Statesman. Here’s an excerpt from their article about TDCJ, including how the reporters got around the confidentiality provisions:

From fiscal 2009 through the first part of 2015, the Texas Department of Criminal Justice paid more than 600 legal claims worth nearly $4.5 million. According to the comptroller’s office, all are considered confidential.

The department’s assistant general counsel, Patricia Fleming, conceded that many of its settlements should be public, saying it was unclear why they showed up as confidential in comptroller records. But she added other payments involved inmates, and, she said, state law prohibited the agency from releasing anything other than basic information about prisoners. The agency has asked the attorney general, who settles open records disputes, to rule on the issue.

While they’re waiting for that decision, however, citizens can find all the information through a back door that even many state officials acknowledged they knew nothing about. A recurring instruction in the state’s biennial budgets instructs the attorney general’s office to report monthly to the Legislative Budget Board every settlement and judgment payment it processes.

According to those documents, obtained by the Statesman under Texas open records laws, the corrections agency has paid many legal judgments to noninmates — meaning there is no obvious reason for their confidentiality. In April 2012, for example, it paid Helotes resident James Benke $75,000 “when TDCJ inmates improperly cut down trees on their property, and caused other trees to die from oak wilt.” Reached by phone, Benke declined to discuss the incident.

Other records show why such information can be important to an informed public. According to the documents, a year ago the prison agency paid $152,000 to settle a case in which inmate David Beceril claimed guards at the Estelle Unit in Huntsville hadn’t protected him from a savage beating by another prisoner. In November, Legislative Budget Board records show the criminal justice agency paid $147,500 to settle a claim filed by former inmate Joe Hill III, who said a beating he’d received from guards at the McConnell Unit in Beeville in March 2010 had left him permanently disabled.

From fiscal 2009 through the first part of 2015, the Texas Department of Criminal Justice paid more than 600 legal claims worth nearly $4.5 million. According to the comptroller’s office, all are considered confidential.
The department’s assistant general counsel, Patricia Fleming, conceded that many of its settlements should be public, saying it was unclear why they showed up as confidential in comptroller records. But she added other payments involved inmates, and, she said, state law prohibited the agency from releasing anything other than basic information about prisoners. The agency has asked the attorney general, who settles open records disputes, to rule on the issue.
While they’re waiting for that decision, however, citizens can find all the information through a back door that even many state officials acknowledged they knew nothing about. A recurring instruction in the state’s biennial budgets instructs the attorney general’s office to report monthly to the Legislative Budget Board every settlement and judgment payment it processes.
According to those documents, obtained by the Statesman under Texas open records laws, the corrections agency has paid many legal judgments to noninmates — meaning there is no obvious reason for their confidentiality. In April 2012, for example, it paid Helotes resident James Benke $75,000 “when TDCJ inmates improperly cut down trees on their property, and caused other trees to die from oak wilt.” Reached by phone, Benke declined to discuss the incident.
Other records show why such information can be important to an informed public. According to the documents, a year ago the prison agency paid $152,000 to settle a case in which inmate David Beceril claimed guards at the Estelle Unit in Huntsville hadn’t protected him from a savage beating by another prisoner. In November, Legislative Budget Board records show the criminal justice agency paid $147,500 to settle a claim filed by former inmate Joe Hill III, who said a beating he’d received from guards at the McConnell Unit in Beeville in March 2010 had left him permanently disabled.
– See more at: http://www.mystatesman.com/news/news/state-regional/state-incorrectly-obscures-millions-of-dollars-in-/nkW67/?icmp=mystatesman_internallink_megamenu_link#f303cb80.3559866.7356
From fiscal 2009 through the first part of 2015, the Texas Department of Criminal Justice paid more than 600 legal claims worth nearly $4.5 million. According to the comptroller’s office, all are considered confidential.
The department’s assistant general counsel, Patricia Fleming, conceded that many of its settlements should be public, saying it was unclear why they showed up as confidential in comptroller records. But she added other payments involved inmates, and, she said, state law prohibited the agency from releasing anything other than basic information about prisoners. The agency has asked the attorney general, who settles open records disputes, to rule on the issue.
While they’re waiting for that decision, however, citizens can find all the information through a back door that even many state officials acknowledged they knew nothing about. A recurring instruction in the state’s biennial budgets instructs the attorney general’s office to report monthly to the Legislative Budget Board every settlement and judgment payment it processes.
According to those documents, obtained by the Statesman under Texas open records laws, the corrections agency has paid many legal judgments to noninmates — meaning there is no obvious reason for their confidentiality. In April 2012, for example, it paid Helotes resident James Benke $75,000 “when TDCJ inmates improperly cut down trees on their property, and caused other trees to die from oak wilt.” Reached by phone, Benke declined to discuss the incident.
Other records show why such information can be important to an informed public. According to the documents, a year ago the prison agency paid $152,000 to settle a case in which inmate David Beceril claimed guards at the Estelle Unit in Huntsville hadn’t protected him from a savage beating by another prisoner. In November, Legislative Budget Board records show the criminal justice agency paid $147,500 to settle a claim filed by former inmate Joe Hill III, who said a beating he’d received from guards at the McConnell Unit in Beeville in March 2010 had left him permanently disabled.
– See more at: http://www.mystatesman.com/news/news/state-regional/state-incorrectly-obscures-millions-of-dollars-in-/nkW67/?icmp=mystatesman_internallink_megamenu_link#f303cb80.3559866.735674
From fiscal 2009 through the first part of 2015, the Texas Department of Criminal Justice paid more than 600 legal claims worth nearly $4.5 million. According to the comptroller’s office, all are considered confidential.
The department’s assistant general counsel, Patricia Fleming, conceded that many of its settlements should be public, saying it was unclear why they showed up as confidential in comptroller records. But she added other payments involved inmates, and, she said, state law prohibited the agency from releasing anything other than basic information about prisoners. The agency has asked the attorney general, who settles open records disputes, to rule on the issue.
While they’re waiting for that decision, however, citizens can find all the information through a back door that even many state officials acknowledged they knew nothing about. A recurring instruction in the state’s biennial budgets instructs the attorney general’s office to report monthly to the Legislative Budget Board every settlement and judgment payment it processes.
According to those documents, obtained by the Statesman under Texas open records laws, the corrections agency has paid many legal judgments to noninmates — meaning there is no obvious reason for their confidentiality. In April 2012, for example, it paid Helotes resident James Benke $75,000 “when TDCJ inmates improperly cut down trees on their property, and caused other trees to die from oak wilt.” Reached by phone, Benke declined to discuss the incident.
Other records show why such information can be important to an informed public. According to the documents, a year ago the prison agency paid $152,000 to settle a case in which inmate David Beceril claimed guards at the Estelle Unit in Huntsville hadn’t protected him from a savage beating by another prisoner. In November, Legislative Budget Board records show the criminal justice agency paid $147,500 to settle a claim filed by former inmate Joe Hill III, who said a beating he’d received from guards at the McConnell Unit in Beeville in March 2010 had left him permanently disabled.
– See more at: http://www.mystatesman.com/news/news/state-regional/state-incorrectly-obscures-millions-of-dollars-in-/nkW67/?icmp=mystatesman_internallink_megamenu_link#f303cb80.3559866.735674
From fiscal 2009 through the first part of 2015, the Texas Department of Criminal Justice paid more than 600 legal claims worth nearly $4.5 million. According to the comptroller’s office, all are considered confidential.
The department’s assistant general counsel, Patricia Fleming, conceded that many of its settlements should be public, saying it was unclear why they showed up as confidential in comptroller records. But she added other payments involved inmates, and, she said, state law prohibited the agency from releasing anything other than basic information about prisoners. The agency has asked the attorney general, who settles open records disputes, to rule on the issue.
While they’re waiting for that decision, however, citizens can find all the information through a back door that even many state officials acknowledged they knew nothing about. A recurring instruction in the state’s biennial budgets instructs the attorney general’s office to report monthly to the Legislative Budget Board every settlement and judgment payment it processes.
According to those documents, obtained by the Statesman under Texas open records laws, the corrections agency has paid many legal judgments to noninmates — meaning there is no obvious reason for their confidentiality. In April 2012, for example, it paid Helotes resident James Benke $75,000 “when TDCJ inmates improperly cut down trees on their property, and caused other trees to die from oak wilt.” Reached by phone, Benke declined to discuss the incident.
Other records show why such information can be important to an informed public. According to the documents, a year ago the prison agency paid $152,000 to settle a case in which inmate David Beceril claimed guards at the Estelle Unit in Huntsville hadn’t protected him from a savage beating by another prisoner. In November, Legislative Budget Board records show the criminal justice agency paid $147,500 to settle a claim filed by former inmate Joe Hill III, who said a beating he’d received from guards at the McConnell Unit in Beeville in March 2010 had left him permanently disabled.
– See more at: http://www.mystatesman.com/news/news/state-regional/state-incorrectly-obscures-millions-of-dollars-in-/nkW67/?icmp=mystatesman_internallink_megamenu_link#f303cb80.3559866.735674

Paper: DPS border deployment a ‘political stunt’

The Beaumont Enterprise published a staff editorial yesterday which sums up my own views about the suggestion to hire 500 additional state troopers to guard the border:

If the Legislature wants to add 250 troopers to the Department of Public Safety at a cost of nearly $100 million over the next two years, that’s fine. Texas is generally a safe state, but it’s a big one too. There are plenty of places between Orange and El Paso where those new DPS troopers could protect taxpayers and fight crime.

Stationing them permanently on the U.S.-Mexico border, however, is a political stunt that should be nipped in the bud. That’s not where they are needed, and it’s not where they can be most effective.

They described the plan as an “active decision to shift first-responders with arrest powers from places where they can do a lot of good to places that make good background for campaign commercials,” which quite honestly is a difficult point to argue.

Whitmire: Depopulate Texas youth prisons

“Up to 80 percent of juvenile offenders sent to state lockups could instead be held in regional treatment programs under a bill filed Friday, a move that could significantly downsize the state’s long-troubled youth corrections system,” reported Mike Ward at the Houston Chronicle over the weekend (March 13), adumbrating the details behind state Sen. John Whitmire’s SB 1630, filed Friday. Here’s the gist of the plan:

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.

“Smaller facilities, tightly run, closer to home – that’s what we’re looking at,” Whitmire said. “We want to get these students out of the large, 200-acre campuses in remote locations that the state operates now. That model doesn’t work anymore. Most of our state facilities are understaffed, the youths are out of control much of the time, they can’t get proper treatment and the recidivism rates are very high.”

Whitmire said Senate budget writers have agreed to refocus the agency’s two-year budget to fund more local rehabilitation and treatment programs and to hire more parole officers. Agency requests for more guards, remodeled or new secure facilities and other security upgrades at existing lockups would not be funded, he said.

If this plan succeeds, Texas will have gone from incarcerating around 5,000 kids before 2007 to a few hundred, at most, ten years hence, all during a period when juvenile crime dropped like a stone. There are lessons from this experience that the state could and should apply to the adult system.

In related news, last week the Justice Policy Institute, in conjunction with my employers at the Texas Criminal Justice Coalition, created a set of images aimed at social media like the one above to demonstrate the cost effectiveness of these sorts of reforms. Check them out below the jump and pass them on:

MONDAY, MARCH 16, 2015

Can/will Lege write a constitution-friendly ban on online solicitation of a minor?

After the Texas Court of Criminal Appeals ruled the existing “online solicitation of a minor statute” unconstitutional in 2013, quite a few legislators would like to revive the statute. The first bill to be heard this session addressing the topic will be HB 861 by Tony Dale, which is on Wednesday’s House Criminal Jurisprudence Committee agenda.

I mention it because Mark Bennett, who litigated the case overturning the statute as unconstitutional, authored a blog post in February offering his analysis of companion legislation to Dale’s, praising its restraint in several areas and describing a handful of remaining, arguably unconstitutional provisions which he says would still subject it to First Amendment attack if the bill is not amended.

Bennett’s is not an idle claim. The (not exactly liberal, namby-pamby) Texas Court of Criminal Appeals ruled unanimously that “everything that Section 33.021(b) prohibits and punishes is speech and is either already prohibited by other statutes (such as obscenity, distributing harmful material to minors, solicitation of a minor, or child pornography) or is constitutionally protected” (emphasis in original). So if everything that can be illegal has already been made illegal, it’s hard to see room for this statute to afford additional protections to victims of sex crimes, good intentions notwithstanding.

Bennett showed up last week to testify before the same committee regarding proposed “revenge porn” statutes, making related First Amendment arguments. Some members of the panel – most prominently Rep. Jeff Leach – strongly disagreed with Bennett’s analysis, but from Grits’ perspective it was an odd conversation. Bennett was describing the state of the law as articulated in a 9-0 vote by the CCA, while his critics made normative claims about what the law should be. That’s a recipe for having your new statute struck down just like Texas’ online solicitation and improper photography laws.

In the case of online solicitation of a minor, Bennett has told legislators already exactly what it would take to write a constitutional statute. If they want any law they write to have an effect in the real world – as opposed to merely affording an opportunity for politicized grandstanding – it would behoove them to accept his advice.

SUNDAY, MARCH 15, 2015

Rick Perry says get ‘Right on Crime’

Former Texas  Governor Rick Perry has announced he’s signed on to the Texas Public Policy Foundation’s “Right on Crime” campaign. He issued the following statement in conjunction:

This week I agreed to join an initiative called Right on Crime. They’re based out of the Texas Public Policy Foundation, and are focused on helping people understand why a big, expensive prison system—one that offers no hope for second chances and redemption—isn’t conservative policy.

During my leadership as governor, Texas shut down three prisons, and we saved taxpayers $2 billion. When I left office, Texas had the lowest crime rate in our state since 1968. My administration started treatment programs and drug courts for people who wouldn’t be served well by sitting behind bars. We made sure our parole and probation programs were strong. Most of all, we evaluated prisons based on whether they got results. Did an ex-offender get locked up again? Did he get a job? Is he paying restitution to his victims? In Texas, we believe in results.

Right on Crime and the Texas Public Policy Foundation have been at the forefront of conservative criminal justice reform. So I’m proud to join my friends at Right on Crime who have helped make Texas safer while shrinking government.

The move completes a transition from 2005, when Perry vetoed the first round of Texas’ much-ballyhooed probation reforms which he signed into law two years later. He’s come a long way on these topics in the decade hence.

Bob Dylan sang that “you don’t need a weatherman to know which way the wind blows,” and in this case Rick Perry provides a remarkable political weather vane showing how public opinion among the conservative grass roots has shifted on these topics. Clearly he wouldn’t think of doing this if there weren’t a calculation – and probably internal polling – to indicate it would help his pending presidential campaign.

MORE: From Breitbart News.

Cynical campaign ploy removing statute of limitations for rape scaled back in Lege process

Last week, the Texas House Criminal Jurisprudence Committee heard a bill by state Rep. Senfronia Thompson which would codify an awful suggestion from last year by failed Democratic gubernatorial candidate, Wendy Davis, to eliminate the statute of limitations on rape. Gritsreferred to the idea at the time as “misanthropic madness.”

Imagine being accused of date rape 25 years ago: How could anyone possibly defend oneself if the state can secure a conviction based solely on the alleged victim’s uncorroborated testimony? This would be a recipe for ramping up the number of false rape convictions, which readers will recall is the main category of defendants who populate the state’s highest-in-the-country number of DNA exonerees.

Thankfully, judging from testimony at the hearing, Rep. Thompson plans to scale back the bill in a committee substitute to only removing the statute of limitations in cases where DNA evidence existed to corroborate the allegation, particularly referencing the thousands of untested rape kits sitting in backlog at police departments around the state. It would allow prosecution for older “aggravated” sexual assault in addition to “regular” sexual assault in cases where DNA evidence exists, according to testimony by the Texas Criminal Defense Lawyers Association’s Kristin Etter. That’s a compromise I can live with from a protect-the-innocent perspective (though there are other purposes behind statutes of limitations which are still upended by the proposal).

Grits appreciates Rep. Thompson’s willingness to revise the bill. She’s championed innocence topics over the years with such unfailing vigor that it would have been a particularly harsh blow for her to push through such a terrible idea, borne of cynical political gamesmanship.

Finally, for reasons which escape me, the House Criminal Jurisprudence Committee on Wednesday will hear another bill by Rep. Ryan Guillen proposing identical language. (It’d sure be easier if the committee would hear identical bills on the same day.) Here’s hoping he’s open to the same compromise.

FRIDAY, MARCH 13, 2015

Interesting criminal justice bills, developments at Texas Lege this week

Here are a few items that caught Grits’ attention at the Lege this week as the bill filing deadline approaches at the end of the day today.

House backs prison guard raise
Budget writers in the Texas House “added a 10 percent raise for correctional officers, citing numerous vacancies,” reported Peggy Fikac at the SA Express News. Grits has suggested they adjust penalties for state jail felonies, as state Rep. Senfronia Thompson proposed this week (see below), and close a couple of units to pay for it.

Maintenance deferred at DPS, TDCJ
The Texas Department of Public Safety says it needs $370 million for deferred maintenance on its facilities, while the Department of criminal Justice offered a surprisingly low number of $165 million for needed maintenance at its 109 units and administrative facilities.

Scale back incarceration for low-level, nonviolent crimes
Rep. Senfronia Thompson has filed a bill adjusting penalties downward for certain nonviolent misdemeanor and felony offenses, including indexing property crimes for inflation and reducing penalties for low-level possession of marijuana and less-than-a-gram of other controlled substances by one penalty category. The bill includes most of the suggestions offered for reducing corrections costs at the state and county level offered last month in this Grits post.

Stop suspending licenses for Driver Responsibility surcharge nonpayment
Rep. Thompson also has an excellent bill which would forbid suspension of drivers licenses for nonpayment of the Driver Responsibility surcharge, which would eliminate many of the worst unintended consequences from the program.

Speeding up appointment of indigent counsel
Senators Kel Seliger and Royce West filed legislation setting limits on how long defendants can sit in jail before a judge appoints them counsel if they’re indigent – one day in counties with more than 250,000, and three days in counties with less than 250,000 population. Rep. Garnet Coleman has similar legislation in the House.

Require criminal conviction for asset forfeiture
Sen. Konni Burton filed legislation that would void asset forfeiture proceedings if prosecutors failed to secure an underlying conviction.

Replace grand juries with full-time “probable cause juries”
Rep. Harold Dutton filed a bill to transform grand juries into full-time, permanent “probable cause juries.” These would be three person panels – one appointed by the county judge, one by the presiding officer of the largest municipality in the county, and a third, presiding juror selected by those two people. These must be licensed attorneys who’ve practiced ten years and have not worked as a prosecutor for at least the last two. Interesting idea.

Re-open law enforcement records on closed cases
Rep. Dutton also filed legislation which would reinstate the original application of the Texas Public Information Act for law enforcement records, reversing a two-decade old catastrophe dating from when the Texas Supreme Court gutted the act and the Legislature codified their bad ruling instead of repairing it. Dutton’s bill would allow exemptions to the Public Information Act for ongoing cases and open them up after the cases are closed, which is how the state operated for nearly three decades before 1996-97. See Grits’ arguments in favor of a similar Dutton bill from 2007. IMO this is perhaps the most effective and important police accountability bill proposed at the Texas Legislature this session.

Don’t keep license plate reader records not part of a criminal case
Rep. Matt Rinaldi filed legislation to require all images from government owned license plate readers to be destroyed within seven days unless they’re part of an ongoing criminal investigation or prosecution. Another bill by Rep. Giovanni Capriglione would mandate destruction of imagesafter 90 days.

Limit automated traffic enforcement
Rep. Gary Elkins filed a bill to eliminate automated traffic enforcement systems and another forbidding issuance of civil instead of criminal penalties for traffic offenses under municipal ordinances.

Increased penalty for First Amendment activity by CHL holders
Rep. Jason Villaba’s just-filed bill criminalizing non-MSM citizen filming of police officers isalready drawing fire, in part because it’s actually more restrictive if the person doing the filming is carrying a firearm with a concealed carry permit.

Introducing the Texas Drone Corps
Rep. J.M. Lozano of Kingsville wants the governor’s office to have a drone program. The bill doesn’t say whether the governor would be authorized to arm the drones or outfit them with Stingrays/IMSI catchers, but there’s no limits described on their use except that they be deployed for “state purposes. That couldn’t be any broader.

THURSDAY, MARCH 12, 2015

Warrants for stingrays, convictions for forfeitures, and other odds and ends

Here are a few odds and ends to chew on while your correspondent is focused elsewhwere:

  • Legislation filed by state Rep. Duane Bohac (HB 3165) would require the government to obtain a warrant to use “stingray” devices to intercept cell phone calls and subscriber data. The bill also would ban non-disclosure agreements which have prevented police departments from revealing information – even to prosecutors – about how they use these devices. IMO the Public Information Act already forbids such NDAs, but the Attorney General hasn’t agreed and so, barring expensive litigation, this law is necessary to open up the records.
  • State Rep. David Simpson has filed a bill HB 3171 aimed at “repealing civil asset forfeiture provisions and establishing criminal asset forfeiture in this state.” The bill would require a criminal conviction before the government can seize assets and installs various restrictions and reporting requirements about how agencies seize, manage and seek forfeiture of contraband and illicit cash. See coverage of other Texas forfeiture legislation at the Dallas Observer.
  • I’m not sure why this hunger strike, prison litigation, and the prevention of an attorney from visiting his clients at a private immigration detention center hasn’t gotten more press attention.
  • The lawyer for the prosecutor from the Todd Willingham capital murder case expects the state bar “to notify his client soon that it will pursue formal charges of misconduct” over failing to disclose a deal with a jailhouse informant who later recanted his testimony.
  • A “dirty little secret” about many “exonerees”: “They were able to prove that they were wrongfully convicted, yet very, very few could show that they were actually innocent. They were—they are—innocent, but in our legal system, that all-important fact is largely beside the point.” A Texas example would be the San Antonio Four: They were essentially exonerated but not formally declared “innocent,” which in Texas would entitle them to compensation for the grievous wrong done them.
  • Check out this interesting looking DOJ study on maturity and desistance from crime. Among the findings: “The vast majority of juvenile offenders, even those who commit serious crimes, grow out of antisocial activity as they transition to adulthood.”
  • Slate’s Dahlia Lithwick thinks David Dow’s suspension from capital cases for a year by the Texas Court of Criminal Appeals was an “injustice.” Personally, I’m a bit more sympathetic to the CCA than that. I don’t doubt Dow’s being singled out, but he’s also singularly the source of repeated late filings (e.g., “we close at 5”), about which the court has adjusted and reiterated the rules in response to little apparent effect. File your damn briefs on time and this won’t be a problem. Everybody else does.

WEDNESDAY, MARCH 11, 2015

Bill eliminating pick-a-pal grand jury system clears committee

State Sen. John Whitmire’s bill eliminating the “key man” system for picking grand jurors cleared the Texas Senate Criminal Justice Committee yesterday. Reported the Houston Chronicle (March 10):

A state Senate committee voted unanimously Tuesday to junk Texas’ controversial and long-standing “pick-a-pal system” in which judges use friends to recommend other friends to serve on grand juries.

Instead, the Senate Criminal Justice Commission approved Senate Bill 135 that will allow judges to select grand jurors from the regular jury pool, with an emphasis on making grand juries more reflective of the diverse communities they serve.

The state law governing Texas’ grand jury selection rules has been in effect for decades, allowing judges to select friends as “commissioners” who then recommend names of prospective grand jurors to the judge to be selected. …

Sen. John Whitmire, a Houston Democrat and the author of the measure, said the change is needed, adding Texas is the only state that still uses the “key man” system to select grand jurors.

“This bill would require diversity,” Whitmire told the committee he chairs. “Every state in the union has gone to random selection. It sends a message that we want the system to be transparent and fair.”

Police, prosecutors, civil rights groups and several judges heartily endorsed the change, including former Houston state district judges Joan Huffman, now a state senator and the vice chair of the committee, and Belinda Hill, now a Harris County first assistant district attorney.

Overuse of solitary confinement endangers public safety

Dianna Muldrow of the Texas Public Policy Foundation has an op ed in the Austin Statesman(March 10) calling on Texas to reduce its use of solitary confinement. The column concluded:

The current practices surrounding solitary confinement are failing everyone. Inmates are made more dangerous and then often released right back into the communities. Security in prisons is lowered at an increased cost to taxpayers. Policies in correctional facilities need to be significantly altered.

Cages come with a cost, and this cage costs everyone.

And here are a few notable data points with which she backed up the argument:

solitary has become drastically overused by the Texas system. In other states, inmates in solitary confinement account for 1 or 2 percent of the incarcerated population. In Texas they account for 4.4 percent, many of them with mental disorders.

This number raises serious safety concerns. In 2013, more than 1,000 inmates in Texas were released back into the community directly from solitary confinement. Research has proven that inmates who are released directly from solitary confinement are 35 percent more likely to reoffend. This significantly increases their danger to communities.

Even if an inmate in solitary is not violent or threatening to begin with, time spent in solitary, which involves 23 hours in a cell with no stimulation, can increase that danger. Thousands of inmates sent to solitary confinement in Texas are already suffering from mental disorders. Research demonstrates the dangers of solitary on the mentally ill, but it only requires common sense to realize that restricting someone who is already disturbed to what is essentially a box for months will exacerbate their condition.

Additionally, the argument that solitary is only being used to increase institutional and public safety does not hold up. Mississippi has managed to substantially lower their solitary population, while seeing a decrease in prison violence and the rate of recidivism upon release. Additionally it is estimated that if Texas lowered their solitary incarceration rate to Mississippi’s 1.4 percent, they would save taxpayers $31 million a year.

TUESDAY, MARCH 10, 2015

Bill would reduce surcharge amounts for insurance, DL compliance

A provision in HB 7 would reduce certain surcharges under Texas’ Driver Responsibility Program.According to the Dallas News:

In the Driver Responsibility Program, Darby would reduce certain extra penalties.

Currently, a driver must pay steep fees — for three years — for not having auto insurance or driving without a valid driver’s license. Under his bill, they would be smaller fines, and they would end once a motorist showed he or she has coverage and valid license.

I’m unsure why the Dallas News says the surcharge would “end once a motorist showed he or she has coverage and a valid license.” Looking at the text of the bill, it reduces surcharges if they get insurance or a license, but doesn’t eliminate them. The legislation was announced at a press conference yesterday which can be viewed here.

As I read it, HB 7 would reduce the surcharge amount for failure to maintain liability insurance and for driving with an invalid license from $250 per year to $125 per year if the driver obtains insurance or gets a license renewal within 60 days. The surcharge for driving without a driver’s license (as opposed to with an invalid one) would decline to $50 per year if the driver acquires a DL within 60 days.

This falls short of abolition but it’s better than a sharp stick in the eye. Thank you to Reps. Darby, Otto, Turner, et. al. for suggesting the idea.

Lots of judge nominations up in committee Thursday

On Thursday, the Texas Senate Nominations committee will consider a long slate of judicial appointments and four new proposed members to the State Commission on Judicial Conduct.Check out the list. Obviously, Texas elects judges but the governor appoints replacements when vacancies arise mid-term.

Grits likely won’t have time to Google all these folks before then, but let me know in the comments if any names jump out as problematic.

Bennett: Revenge porn bills face insurmountable First Amendment hurdles

There are three bills up on Wednesday’s Texas House Criminal Jurisprudence agenda which would criminalize revenge porn. But Houston attorney Mark Bennett, arguably Texas’ premier expert at the moment on the intersection between the First Amendment and criminal law, made the case this morning that all three bills are unconstitutional on First Amendment grounds. (Seehere for more background.)

Bennett argues that the bills propose a “content-based” restriction on speech which is “presumptively unconstitutional under the First Amendment” unless it falls within “nine recognized categories of unprotected speech.” “For this or any other revenge-porn statute to pass constitutional muster, the Supreme Court would have to recognize another category of historically unprotected speech,” he pointed out. “In Arizona, enforcement of the nonconsensual-pornography criminalization statute was almost immediately stayed on First Amendment grounds by a U.S. District Court.”

Mark’s the attorney who successfully convinced the Texas Court of Criminal Appeals – hardly a bunch of libertines – to vote 9-0 to invalidate Texas’ online solicitation of a minor statute. So it’d be wise for legislators to consider Bennett’s counsel. If they don’t, he may well be the guy knocking the law down on the back end.

With statutes regarding online solicitation of a minor and improper photography recently struck down by Texas courts over First Amendment problems, it’s clear there’s a tension over legislators’ desire to limit lewd pictures and dirty talk to a greater extent than the Constitution allows. If Bennett’s right – and his recent track record on these subjects has been excellent – these bills are unlikely to survive First Amendment scrutiny by the courts.

This is an ounce of prevention vs a pound of cure situation. It’d be a lot simpler to kill the legislation in committee than to make Bennett or some other criminal defense lawyer fight in court for years post hoc to reach the same result.

MORE: Check out a recent academic article on the constitutionality of anti-revenge porn laws.

MONDAY, MARCH 09, 2015

Poll: Public opinion supports criminal justice reform

Excellent news from a new poll of a thousand Texas voters sponsored by the Texas Public Policy Foundation. Among the highlights:

Texans prefer drug treatment over prison by a 61 percent to 26 percent margin. The number bumps up to 73 percent when you limit the question to drug possession cases.

Some 71 percent of Texans believe the justice system should only be involved in extreme cases of chronic truancy, not workaday cases, while just 24 percent of respondents disagreed.

A solid 57 percent of Texans support adjusting property theft thresholds upward to account for inflation, with 37 percent opposed.

A similar number – 57 percent – supported reducing the time inmates spend in prison so they can be monitored on community supervision.

Clearly the public is ahead of their elected officials on these topics, though they have an opportunity to catch up to them over the next few months.

Sheriff: Suspend, don’t terminate Medicaid benefits during local jail incarceration

Harris County Sheriff Adrian Garcia and George Masi, CEO of Harrs Health Sytems authord an op ed in the Houston Chronicle (March 6) calling for the state to suspend rather than terminate Medicaid benefits when recipients are incarcerated in the county jail for 30 days. Here’s a notable excerpt:

Medicaid health-care benefits for eligible persons incarcerated in county jails are terminated after 30 days, rather than merely suspended as in many states. To further complicate its shortcomings, the policy depends on time spent in jail, not whether the inmates are acquitted or convicted.

Suspension, rather than termination, of Medicaid benefits allows eligible former inmates to more easily obtain medical care with Harris Health and other local health-care providers upon their release. Under current state practices, once an inmate’s Medicaid is cancelled, they are forced to navigate a bureaucratic labyrinth in order to renew their medical benefit.

Legislation proposed in this 84th Texas legislative session would change the policy to suspension rather than termination. This could have a considerable impact on the treatment of indigent individuals in the custody of the county jail, where a quarter of the inmates receive medicine for psychiatric illness and others suffer from a myriad of additional disorders. When released, these individuals have little access to the care and medication needed to stay as healthy as they were during their time in jail.

By placing limitations on their easy access to affordable care, the state of Texas is all but ensuring a quick return to jail for individuals suffering from mental illness. Simply put, access to care reduces recidivism.

The Harris County Sheriff’s Office is responsible for the medical care, custody and control of the approximately 8,500 inmates. This medical care – a constitutional obligation – is provided as part of the sheriff’s budget to operate the county jail system.

The burden is further passed to the taxpayers of Harris County who pay into the Medicaid program via federal income taxes and then pay to support Harris Health’s budget when otherwise uninsured patients come through their doors.

SUNDAY, MARCH 08, 2015

‘Texas prosecutes more truancy cases than all other states combined”

See articles from the liberal Texas Observer and the conservative Breitbart News covering a newreport issued last week by Texas Appleseed which included the finding touted in the headline. Nice to see bipartisan support as the Lege prepares to consider the issue: The newly created House Juvenile Justice and Family Issues Committee will hear several truancy related bills at their meeting on Wednesday.

Bathroom bill spawns glitter bomb protest

State Rep. Debbie Riddle’s district office in Montgomery County received a “glitter bomb” in the mail, reported the Texas Tribune, in response to which a DPS captain sent around a document(pdf) to legislative offices titled “Glitter Bombing: Weapon of Choice for Gay Rights, Pro-Choice Activists.” A glitter bomb is a spring loaded package which spews glitter around the room when it’s opened. So elevating its status to weaponry is a stretch, but we are in the Era of Hype and Hysteria where overstatement is the watchword of the hour. Every minor threat must be hyped to the Nth degree: It’s a rule.

The Tribune offered no suggestion why Debbie Riddle might have been victimized except for a reference in the document from DPS declaring that “The common denominator among [targets] is a conservative orientation and opposition to gay rights, especially marriage equality.” But I doubt this had anything to do with marriage equality. Grits would bet dollars to donuts this protest was about telling transgendered folk where to go to the bathroom.

Grits felt a momentary twinge of guilt upon hearing that Riddle’s district staff were glitter bombed, since this blog broke the story about the bill that is almost certainly the proximate cause of the episode. But somebody would eventually have noticed the legislation and the reaction was bound to be negative, whatever the source from which folks heard it. To be clear, while Riddle’s bill is goddawful, I also don’t condone harassing her staff or creating extra work for the cleaning crew (anyone with kids knows that glitter is incredibly hard to remove).

Indeed, from the perspective of trying to prevent Riddle’s bathroom bills from passing, such pranks aren’t just childish but counterproductive. These sorts of juvenile tactics don’t help anyone’s cause except, ironically, Debbie Riddle’s.

SATURDAY, MARCH 07, 2015

Don’t use criminal law to enforce contract terms

A bill scheduled to be heard in the Texas House Criminal Jurisprudence Committee next week,HB 896 (Hernandez), revives the effort by internet service providers to get law enforcement to enforce their private consumer contracts, much the same way prosecutors did for payday lendersfor many years before legislators and the courts (mostly) reined them in.

See the language of HB 896 – subsection 2(B) is the overbroad piece which needs to be deleted. But in years past, the bill’s backers weren’t willing to accept legislation without the broader provision – criminalizing terms-of-service violations in consumer contracts is really the main thing they’re after, not preventing hacking, which is what 2(A) is primarily about.

I’d written about this bill in 2013, so rather than rehearse the arguments again, I’ll refer readers tothat post. The issues remain the same: Having cops and prosecutors enforce consumer contract terms amounts to over-criminalization and corporate welfare. Here’s hoping the bill will be amended or die (again).

Lege should make DPS expunge improperly taken fingerprints

“The state should not be collecting a full set of fingerprints from citizens who are not suspected of committing any crime,” declared state Sen. Charles Schwertner as he laid out SB 398 on Wednesday in the Senate Transportation Committee. Good on him.

His bill clarifies that DPS cannot collect all ten fingerprints from drivers when they obtain or renew their licenses, limiting them to collecting thumbprints or index prints if the former is impossible. DPS began gathering all ten last year then stopped last month when legislators threatened to file this bill. DPS first took thumbprints beginning in 2005, then took all ten fingerprints, and now as of two weeks ago take both index prints, according to the discussion among senators.

Two items stuck out from the brief hearing (you can watch it here, first bill up). First, Sen. Van Taylor corroborated Grits’s memory of the legislative history on this topic. He had spoken over the summer to former state Rep. Frank Corte, who’d authored the provision in question. Corte told him he had tried to give DPS the authority to collect all ten fingerprints in 2003 and the bill died on the floor of the House. Then, in 2005, he passed HB 2337 which (they thought) was narrowly drafted and limited collection to two prints. (I thought one would do, but I didn’t get a vote) Indeed, Taylor pointed out, Corte specifically said in committee as he laid out HB 2337 that it did not expand DPS’ authority beyond thumbprints.

That was certainly my recollection, as a participant drumming up opposition to the measure back in the day. In the early days of this blog, Grits described the House floor vote that rejected SB 945 (Ogden) by a tally of 111-26, an overwhelming margin when you consider 1) Chairman Corte was part of the leadership team in a GOP majority which had just taken power for the first time since Reconstruction and 2) this was the first session of the Texas Legislature after 9/11 and limitations on potential security measures were often a hard sell that year.

Indeed, it’s worth recalling that, as originally drafted, SB 945 would have allowed DPS to gather “any biometric identifier,” not just all ten fingerprints. Suggestions floating around at the time for additional biometrics included iris scans and voice recordings that could be matched with information from wiretaps. The civil liberties fights post-9/11 were pretty extreme and intense by comparison with today, when the Tea Party faction of the GOP would have already murdered these bills in the crib by this point in session.

All that to say, Grits thought it was completely disingenuous for DPS to fabricate the trumped up legislative intent by which they justified this move and appreciated Sen. Taylor clarifying with Mr. Corte exactly what happened.

A gap in the bill was raised by Sen. Sylvia Garcia: The legislation eliminates any possibility of DPS taking all ten fingerprints going forward, but the bill does not require them to redact fingerprints they collected over the last year.

Sen. Schwertner didn’t have an answer as to how many people had all their fingerprints taken, but it’s possible to guesstimate. People have to renew their drivers licenses once every seven years, so in just more than a year’s time, about one seventh of all Texas drivers would have had their licenses come up for renewal. As this legislation moves through the process, I hope they’ll amend it to require DPS to expunge that data.

Lon Kraft of the Texas Municipal Police Association registered that group’s opposition to the bill, which struck me as a fool’s errand. He didn’t offer oral testimony, but it’s no secret that, in their heart of hearts, law enforcement would like access to full sets of fingerprints of all adult Texans, not just those who committed crimes. However, most LEOs aren’t so tone deaf as to announce such views in public. This isn’t 2003 and that stance wouldn’t fly even then.

FRIDAY, MARCH 06, 2015

Reining in ‘cellphone snoops’

The Houston Chronicle published a staff editorial this week (“Cellphone Snoops,” March 4) lamenting Houston PD’s opacity surrounding their use of international mobile subscriber identity (IMSI) catchers, known by the trade name “Stingray.” The article opened, “For about seven years, HPD has been spying on Houstonians by using devices that mimic cellphone towers and trick phones into connecting through them.” Moreover:

the whole history of law enforcement using Stingrays has been tarnished by a pattern of secrets and cover-ups. Police departments across the nation have relied on non-disclosure agreements to keep citizens in the dark about what the devices are capable of. Harris County prosecutor Bill Exley told Chronicle reporter Karen Chen that even prosecutors were out of the loop on HPD’s Stingray use.

The paper also mentioned the useful fact bite that:

State Supreme Courts in Florida and Massachusetts have required police to seek warrants before engaging in real-time cellphone tracking. Eight states – Illinois, Indiana, Maryland, Minnesota, Tennessee, Utah, Virginia and Wisconsin – have passed laws specifically requiring warrants.

Real-time cell phone tracking probably is the closest analogy to what an IMSI catcher is doing, so I agree it should require a warrant. But the Chronicle repeated a misconception that dogs the Stingray debate – mostly because of misinformation spread by law enforcement – and which deserves correction. Said the editorial, “These briefcase-sized gadgets … allow officers to look at the metadata on any nearby cellphone – such as whom you call and where you travel – all without needing a warrant.”

The “without a warrant” part is accurate. But, while it’s technically correct to say the device collects “metadata,” it’s also incomplete and misleading. A Stingray gathers more than “metadata,” a term more applicable to information from phone companies about their customers. Instead, IMSI catchers hijack the phone call entirely, using fraudulent identifiers to convince your device that it’s a real, commercial cell phone tower instead of a covert device performing a man-in-the-middle hacking attack. Stingrays don’t just collect “metadata,” they collect content, similar to an interloper climbing up a pole to listen in on a telegraph line in the 19th century. That’s how they work.

Law enforcement claims they do not use Stingrays for wiretapping but that’s not because an IMSI catcher cannot perform that function. Some models sold by the vendor, Harris Corporation can tap phones as well as gather “metadata,” but non-disclosure agreements prevent anyone – even prosecutors – from knowing whether the model purchased by the City of Houston has that functionality.

Basically, HPD is telling you: Trust us, we’re the government. But as Ronald Reagan advised, it’s always best to “trust, but verify.”

Legislation filed this week by state Senators Craig Estes and Rodney Ellis (SB 942) would require judicial oversight of Stingrays, but treating them as “pen registers” which require a lower standard than a probable-cause warrant (“reasonable suspicion”). Like Rep. Bryan Hughes’ HB 2263, Estes’ bill would require a search warrant for law enforcement to access personal location data from a third-party cell service provider. Grits expects legislation to be filed in the House suggesting a full-blown Fourth Amendment warrant requirement for Stingray use before the bill filing deadline March 13.

While they’re regulating Stingrays, let’s hope the Lege formally disallows law enforcement from entering into non-disclosure agreements with vendors regarding use of surveillance equipment. It seems like a no-brainer to me that state open records law should trump such a spurious NDA. But the Attorney General hasn’t made them give it up, so – by denying information even to prosecutors – HPD has probably made it necessary to pass a law in order to enforce the law.

RELATED: While we’re on the topic, check out the recently upgraded website for the Texas Electronic Privacy Coalition, with which your correspondent is working to pass legislation to require warrants for electronic snooping.

THURSDAY, MARCH 05, 2015

Give the gift of criminal justice reform

Gentle readers, I hope you’ll allow me this point of personal privilege, offered at the behest of a friend …

The Texas Criminal Justice Coalition is participating in “Amplify Austin” – 24 hours of fundraising for Austin based nonprofits. If you support criminal justice reform in Texas, go here to donate. For anyone who hopes to improve the state’s criminal justice system, your investment couldn’t go to a better place. Unlike groups with a national agenda, TCJC works exclusively for what’s best for Texas, a distinction which matters more than you might think. National groups’ agendas don’t always translate here.

TCJC has been at the center of reform efforts in this state for 15 years and I’ve worked with and for them on and off since the beginning. (Disclaimer: most recently, I’ve been employed as a consultant for the group since last summer.)

Some of their most important work has gone relatively unheralded. They’ve taken the lead seeking to end the Driver Responsibility surcharge.  For many years (before the state took it over) their indefatigable Molly Totman operated a de facto repository for the state’s racial profiling reports, and the group’s regularly published “grades” gave some police agencies incentive to improve. Dr. Ana Yañez Correa, their executive director, is somebody I’m terribly proud of; she has sacrificed immensely to build this organization. Here’s their 2015 legislative agenda.

Other groups working on criminal justice topics over the last decade and a half in Texas have ebbed and flowed, often flashing into existence then fading just as fast. TCJC has not just remained but thrived and grown, contributing much needed stability, experience, and leadership to an effort that, by it’s nature, is a long-haul endeavor. What TCJC brings to the table is unique, important, and worthy of support.

Please give generously if you’re able in this one-day Amplify Austin fundraising effort. In fact, my suggestion would be to imagine what you would consider a generous gift, double it, then give that.

Thanks in advance. I try not to use the blog for these purposes often, but this particular cause is worth it.

Pragmatic arguments the strongest for ‘raise the age’ proposal

In politics, wisdom counsels humility when one’s opponents make true, valid arguments undermining one’s position. So let’s acknowledge the truth of criticisms regarding the proposal to raise the age of criminal culpability in Texas from 17 to 18, a measure endorsed in the House Criminal Jurisprudence Committee’s interim report.

Over at the Texas Tribune, the Marshall Project’s Maurice Chammah has a feature story on the topic, which he’s covered before. Like an Austin Statesman editorial earlier this week, Chammah pins the bill’s fate largely on the shoulders of Senate Criminal Justice Committee John Whitmire, a critic of the idea who recently told the Houston Chronicle, “I think at 17 you should know right from wrong.”

And you know what? Whitmire’s right. I laughed aloud when I read that quote, not at the senator but at my own expense. A couple of weekends ago, my granddaughter was visiting. Following an uncharacteristically rude display toward another child, and a self aggrandizing attempt to justify it, I told her, near verbatim, “You are eight years old, you know right from wrong.” And so admonished, she trundled back to issue a half-hearted apology to the slighted party.

So I’m not one to accept such excuses from kids. If I won’t tolerate it from an eight year old, I’ve even less sympathy when you’re 17 (barring mental illness or developmental disabilities). But to me, that’s beside the point.

At 17, the issue isn’t whether you know right from wrong, it’s that you think you’re right abouteverything, even if you’re profoundly wrong. A combination of incomplete brain development and a lack of personal experience combine to create a strongly held but myopic worldview (a.k.a., immaturity).

But the most compelling reasons Texas should “raise the age” have nothing to do with one’s sympathy for the defendants. Being out of kilter with federal law creates looming, practical problems: For example, Texas county jails face potentially budget busting civil litigation if they fail to comply with the strictures of the Prison Rape Elimination Act, which would require adult jails to renovate and staff up portions of their facilities where 17 year olds are held to meet the more stringent juvie standards.

Numerous other situations arise, big and small, where the disjuncture between state and federal law creates problems for front-line practitioners. In recent years, perhaps the most prominent example has been on capital punishment, where Texas having a different age from the feds has created tremendous, ongoing legal complications. The law would be cleaner and simpler if state and federal law were in synch.

Finally, I think most voters will find the normative argument put forward by the Houston Chronicle compelling: “In Texas, you have to be 21 to apply for a concealed handgun, 18 to play the lottery and 18 to get a body piercing without a parent’s consent. Yet a nearly century-old Texas law treats a 17-year-old who shoplifts an iPhone as an adult criminal.” When you can be charged with a felony as an adult but still aren’t old enough to get your ears pierced without parental permission, something’s amiss.

Prosecutors can always seek to certify 17 year olds as adults if they commit very serious crimes. But for the workaday stuff, it makes more sense to treat them through the juvenile system, just like the overwhelming majority of other states and prevailing federal law. Not because they don’t know right from wrong, but because we do.

Fighting unconstitutional taxes disguised as court fees

Emily DePrang at the Texas Observer has filed a report on former GOP Court of Criminal Appeals candidate Jani Wood’s laudable crusade against unfair and unconstitutional court fees. Her latest victory proved the state’s “DNA record fee” is an unconstitutional tax. Read the whole thing.

NPR last year ran an extensive series on court fees, see:

See also prior Grits coverage of Ms. Wood’s court-cost litigation:

WEDNESDAY, MARCH 04, 2015

Analyzing legislation to reform Texas sex-offender civil commitment program.

When Senate Criminal Justice Committee Chairman John Whitmire filed SB 746 revamping Texas’ civil commitment program aimed at sexually violent predators, Grits tried in vain to grok the ins and outs of all the changes and their import from the text and quickly found it made my head hurt. So I emailed Nancy Bunin – an attorney in Houston who works on these cases and who has been involved with advocating for reforming the program – asking her to explain what the bill did, how it addressed the problems reported extensively in the Houston Chronicle and elsewhere, and what remains to be done. She graciously replied today with a detailed and candid response. I’m immensely grateful for her taking the time. Find her analysis below the jump.

Houston PD conceals Stingray use details from prosecutors, citing NDA; warrant for cell-phone location data bill filed

“For about seven years, the Houston Police Department has owned devices that can trick your cellphone into sharing its location and call log by pretending to be a cell tower,” reported Karen Chen at the Houston Chronicle (Feb. 27).

But little is known about how they are deployed, only what they are capable of: telling law enforcement where you are and to whom you’ve been talking.

In Texas, police are not required to obtain a warrant before using a Stingray, and the net is indiscriminate. The devices sweep up all nearby information, regardless of whether the cellphone is involved in a crime.

Your correspondent was quoted briefly in the story. The most interesting news was something told to me several weeks ago by the Harris DA’s office, but made public in this story for the first time: That the Houston PD refuses to tell even the District Attorney’s office, much less local judges, what they’re doing with this technology, citing a non-disclosure agreement with the Harris Corporation which makes the device.

Harris County prosecutor Bill Exley said the arrangement doesn’t put people’s minds at ease. As far as he is aware, Stingrays do not amount to wiretaps, which reveal the content of what’s being communicated. That said, Exley said, the nondisclosure agreement has prevented him, too, from knowing what exactly Stingrays are capable of or being used for. He said he has never offered evidence in court that was produced by a Stingray.

HPD has told him that Stingrays are most useful in catching fugitives.

“If there’s a warrant for your arrest, the cops should be able to do anything lawful to find you,” Exley said. “The question becomes, at what level do you start requiring police officers to ask judges so they can do things they are otherwise legally able to do?”

Exley said as far as he knows the Stingrays aren’t wiretapping. But the truth is, the Stingray captures private calls and routes them through a fake cell phone tower operated by the police, and that includes call content as well as metadata. So we have nothing but HPD’s say so to support the assertion that they’re not accessing content, it’s not because the technology they have isn’t capable of doing so. If “trust us, we’re the government” is good enough for you, you ought to be okay with this.

In Florida, where much more has been made public about how law enforcement uses these devices, “agencies have been using stingrays thousands of times since at least 2007 to investigate crimes as small as a 911 hangup.” For example, “A third of the listed stingray cases, in a list provided by the Tallahassee Police Department (TPD), show that the most frequently cited crimes were robbery, burglary, and theft.” Most uses did not involve a warrant. The open records gurus at Muckrock.com have been tracking this topic: check out their latest missive, including examples from the NDAs between Harris Corp and local police departments. (This has garnered them fans at the FBI.)

In related news, State Rep. Bryan Hughes yesterday filed HB 2263 – a reprise of his HB 1608 last session which garnered 107 joint and coauthors in the House – which would require warrants for law enforcement to access cell phone location data, and there is interest (including among law enforcement interests) in potentially amending the bill language to include Stingrays (a trade name, the technical term is “IMSI catchers”) before everything is said and done.

There’s nothing wrong with law enforcement using the latest available technology, where appropriate, but there’s also nothing wrong with judges exercising oversight over its use to ensure that new technological advances don’t unwittingly dissolve old constitutional protections.

Regulators cited Montgomery jail for failing to provide timely care in inmate death

Reported the Houston Chronicle, “Montgomery County officials are moving to improve medical services at the county jail after a state commission found it had failed to provide timely care to an ailing inmate who later died of natural causes.”

Specifically, “The Texas Commission on Jail Standards found the jail to be out of compliance with state standards on Feb. 9, following the death of inmate David Courtney in December.” Here’s thecitation for not providing “efficient and prompt medical care for acute situations.”

‘Rules to keep federal prosecutors in line revealed’

The title of this post is the headline of a USA Today report on federal prosecutors’ written discovery guidelines implemented after high profile Brady violations several years ago. They got written policies under the Freedom of Information Act from many federal districts, including all of them in Texas:

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