Interim Update: September 2016

            Was that a great Annual Update or what? All told, we had 1,059 attendees and speakers join us in Galveston for some first-rate training (and plenty of rest and relaxation to boot). If you missed out this year, don’t get caught napping—you can now reserve hotel rooms for next year’s Annual on the lovely San Antonio Riverwalk, so don’t delay!

More on pre-trial release

            Last month we told you about the Texas Judicial Council’s proposed 8-point plan to revise pre-trial release procedures. This month, those concepts were reviewed and debated during a joint meeting of the House Criminal Jurisprudence and County Affairs Committees. A news report of that hearing is available here, including a link to the Office of Court Administration’s PowerPoint presentation explaining the reasons for their proposals, many of which are modeled after changes that have been implemented in states like Kentucky and New Jersey and by the federal court system. 

            Based on our informal discussions with some of you, prosecutors’ primary concerns seem to be making sure defendants (1) show up for court and (2) don’t re-offend while awaiting trial. On that front, when it comes to absconding and recidivism rates while on pre-trial release, the OCA’s review of various studies found no discernible difference between those released on commercial bail, cash bonds, or government-supervised personal bonds. As a result, OCA’s desire to limit the cost of implementing a new system has led them to put great stock in a Public Safety Assessment created by the Arnold Foundation, which will be used as part of a Harris County pilot program on reducing pre-trial detention. This risk assessment tool does not require an interview of the offender—which both limits personnel costs and avoids potential bias by an interviewer—but it has been faulted by some for its own disparate racial impact, so it will be interesting to see how it works in Harris County.

            This hearing saw the first significant testimony from the professional bail bondsmen of Texas in defense of their role in the system. Their representatives attacked bail reforms in other states, the reliability of risk assessments, counties that use bond forfeitures for revenue generation, (read: you), and overzealous prosecutors who allegedly cause jail overcrowding by overcharging defendants (again: you), while also pointing out that fees generated from surety bonds help pay for judicial salaries, indigent defense, and assistant prosecutor longevity pay (for a third time: you). The bail bondsmen have deep pockets and will be very active in opposing any efforts next session to eliminate the need for their business, so that should be fun to watch.

            Much of the focus of the interim hearing was on ways to safely get low-risk offenders out of jail, but there was also a debate about the current inability to permanently detain an arrestee who is high-risk. Authorizing judges to hold high-risk offenders without bail would require an amendment to the state constitution, but that idea met with opposition from both ends of the political spectrum, including a criminal defense lawyer and ACLU-types on the political left, a libertarian on the political right, and the bail bondsmen in the middle. (And if that’s the first time you’ve ever heard us talk about such odd coalitions, you haven’t been paying attention!) This opposition is important to note because some supporters of bail reform will seek your support for lowering/removing bail amounts by promising to give courts the ability to hold high-risk offenders without bail—which may sound well and good, except that many of those same supporters may turn around and oppose those no-bail proposals on the ballot next November, which could leave anyone primarily concerned with public safety holding an empty bag at the end of the process. One way to prevent that from happening is to ensure that any proposed constitutional amendments are part of the same single ballot proposition, but that will ultimately be up to the Legislature to decide.

            This topic of pre-trial release is shaping up to be one of the major criminal justice issues for the 85th Legislature, so we will continue to monitor it and report on new developments as they happen. Meanwhile, if you have specific questions about this subject, contact Shannon for more information.

Tim Cole Exoneration Commission

            This ad hoc commission met earlier this month, and an outline of its eventual legislative recommendations is starting to come into focus. Those recommendations may include:

  • Requiring electronic recording of all custodial interrogations
  • Requiring all prosecutor offices to adopt written policies on tracking and disclosing jailhouse informants and related impeachment information
  • Making admissible all prior criminal history information for any jailhouse informant
  • Tracking the use of jailhouse informants at local and statewide levels
  • Making admissible all information related to an eyewitness’s prior identification of a suspect
  • Requiring all law enforcement agencies to adopt the state’s model policy for eyewitness identification procedures
  • Adopting a procedure to streamline the resolution of innocence cases related to erroneous forensic tests

Materials from the commission’s most recent meeting discussing these and other issues are available here.

            One other note: For the first time, a representative of the Innocence Project of Texas suggested to the commission that they recommend the legislature make the commission a standing body. Permanently institutionalizing the innocence movement within state government has long been a goal of various criminal justice reform groups, but it’s an idea that many of you have expressed significant misgivings about in the past. With that in mind, we will continue to monitor this issue for you during the session.

Interim hearing recap

            Things were pretty slow at the Capitol this past month. Besides the hearing on pre-trial release, the only other hearing of note was the House County Affairs Committee’s consideration of pretext stops, racial profiling, and de-escalation tactics during traffic stops. During that hearing, some proposed solutions for those alleged problems included a ban on arrests for Class C misdemeanors, a ban on consent searches, and greater funding for dash cams and body cams. Don’t be surprised if one or more of those ideas are put forth as part of a “Sandra Bland Act,” which committee Chairman Garnet Coleman (D-Houston) announced he would be filing next session (but without any details about what would actually be in it).

Upcoming hearings

            The frequency of interim hearings will slow drastically as we approach Election Day. The only relevant interim committee hearings posted for October are:

 

Senate Committee on Criminal Justice
Tuesday, October 4, at 10:00 a.m., State Capitol Extension, Room E1.016
Topic: community engagement by law enforcement; threats and injuries to law enforcement officers

 

Joint Committee on Border Security
Tuesday, October 18, at 11:00 a.m., State Capitol Extension, Room E1.012
Topic: Implementation of HB 11, last session’s omnibus border security bill

 

            If you have questions about any of these interim hearings, call or email Shannon for more information.

Session volunteers

            If our legislative talk at the Annual inspired you to come see the sausage being made up close and personal, then call (512/474-2436) or email Shannon to learn more about our legislative rotation during the next session. We are seeking volunteers to fill spots during the weeks beginning February 6th and ending the week of May 8th, so find a time that is good for you, clear your calendar that week, and come on down to Austin!

Key Personnel & VAC conference

         Registration is still open for TDCAA’s Key Personnel & Victim Assistance Coordinator Seminar to be held in San Marcos November 2–4, 2016. The Office of the Attorney General will be offering a course on “Crime Victims’ Compensation: Presumptive Eligibility Certification,” new VAC training will be offered, Brady and discovery concerns for office staff will be covered, plus much more! Please consider sending your staff to this excellent training opportunity; see http://www.tdcaa.com/training/key-personnel-victim-assistance-coordinator-seminar for hotel and registration information.

Quotes of the month

“There’s just a lot more to look at. Our court is trying to be as diligent as we can to observe all these changes. That’s why a lot of these stays of execution are being issued.”
            —CCA Judge Larry Meyers, providing his explanation for the high number of execution stays from that court this year.

 

“I want to give Governor Perry credit. In his career he has competed against Kinky Friedman, Donald Trump, and now Vanilla Ice.”
            —Speaker Joe Straus (R-San Antonio), when asked about the former governor’s debut on Dancing with the Stars.

 

“I think a lot of people believe that you’ll see the crime rate go down if you legalize marijuana commercially, [but] that has not been the case. We’ve seen an increase, for instance last year, in every single neighborhood in Denver, almost every single crime from homicide to car thefts. … We’ve seen the black market—which everyone was told would go away—the black market is alive and well in Colorado.”
            —Denver (CO) District Attorney Mitch Morrissey, talking about Colorado’s experience after legalizing marijuana.

 

“I’ve never met a politician who didn’t love a poll.”
            —Holly Harris, executive director of the U.S. Justice Action Network, which intends to release polling later this month showing public support for its federal criminal justice reform proposals now before Congress (which nevertheless appears to be dead for this year).

 

“No wonder they couldn’t prosecute a case. They were handing out immunity deals like candy.”
           —Congressman Jason Chaffetz (R-UT), chairman of the House Oversight and Government Reform Committee, upon hearing that the FBI granted blanket immunity to several of Secretary Hillary Clinton’s closest aides during its investigation of her email practices.

 

“This is a huge ship and it’s not gonna turn on a dime, but it’s gonna turn.”
            —Hank Whitman, new commissioner of the Department of Family and Protective Services, testifying at an interim hearing on the state’s CPS system.

 

“Perry called me ‘comptroller,’ Bush called me ‘controller,’ Ann Richards called me ‘darling.’”
            —Ex-state comptroller John Sharp, when asked how his former title should be pronounced.

 

“At 96, I don’t really try to get into fistfights anymore. But I can if I have to.”
            —Lt. Tom Morgan, Harris County Sheriff’s Office, believed to be the oldest certified peace officer in Texas.

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