Friday, June 19, 2020
Happy Juneteenth! We don’t know about you, but we think it’d be pretty cool if the entire nation ended up observing a holiday that originated in Texas.
TDCAA coronavirus resources
All of our COVID-19 resources—including sample motions and orders, helpful information, and past updates like this one—are available at https://www.tdcaa.com/covid-19-information/. If you or someone in your office has something you would like to share with your peers, consider emailing it to Shannon for inclusion.
Summer doldrums, coronavirus edition
Scatter-shooting the rest of the news from this week that you may have missed. … The governor again renewed the statewide disaster declaration over the coronavirus pandemic, but no new changes to the current Phase Three re-opening were announced despite continued increases in positive tests and fatalities. … The governor has steadfastly refused to restore to local officials the authority to require (via fines) their local citizens to wear face coverings when out and about, but some cities are pushing the envelope on that issue by putting the onus on local businesses to require it instead, which the governor says is permissible (but you can expect the inevitable legal challenges from someone). … And for a final bit of good news, TDCJ announced that it would start accepting a (very) limited number of paper-ready inmates again come July.
(We’re going to take this opportunity below to reflect on current events rather than just report the news of the day. Let’s hope our opinion piece doesn’t get anyone fired, unlike the New York Times’s recent in-house drama.)
It takes no great act of clairvoyance to predict that change is afoot, whether it be in response to the killing of George Floyd or the law enforcement response to the protests/riots (especially in other states, where it sometimes involved excessive force). The notoriety of these events guarantees that legislators will propose changes to policing and criminal justice policy when they meet again in January. Many proposals floated as a response to Mr. Floyd’s killing will be ones from past sessions that were unsuccessful (such as a ban on most Class C arrests or eliminating civil asset forfeiture), even if those issues had nothing to do with the events leading to Mr. Floyd’s death. (Everyone on all sides of an issue knows to “never let a crisis go to waste,” as the saying goes—that’s just good legislating.) But one movement that is increasingly gaining ground on social media goes by the hashtag #AbolishPolice (or sometimes #DefundPolice), and it is relatively new, so it bears further examination if you are not familiar with it.
For starters, allow us to note that even after the events of last month, a super-majority of polled voters of both political parties oppose reducing or defunding law enforcement. Viewed through that prism, a literal attempt to legislatively abolish (verb, “to do away with; put an end to; annul; make void”) law enforcement is a political non-starter—although that is not slowing down the #DefundPolice true believers, as evidenced by this recent NY Times op-ed. But for more mainstream proponents of policing reform, this terminology is also being used to stand for the belief that the modern practice of law enforcement has been over-extended and asked to handle too many societal issues—homelessness, drug abuse, mental health, etc.—that are better addressed through other means (not least of all because policing tends to be more of a sledgehammer, than a surgical, approach to those complicated problems). The goal of these reformers is not to eliminate law enforcement agencies but rather to re-boot the idea of “policing” and return it to a more traditional, limited role. (And in that regard, they share common ground with some small-government advocates and even some peace officers’ groups who think they are being asked to do too much.) But regardless of whether reform advocates mean “abolition” literally or figuratively, they both generally share the belief that to the extent limitations on policing reduce the funding needed for those agencies, any savings (if not even more funding) should be redirected to addressing what they see as the root causes of drug abuse, mental health, and other related issues. (This is just a broad-brush summary; for a more detailed background on this middle approach, see this recent Vox article. Then, for a counter-point explaining why more extreme advocates who want to limit the power of law enforcement purposely use such polarizing language, read this unrolled Twitter thread.)
So, what does this mean for the next session? Viewed through this prism, we expect an interesting debate at the state capitol among multiple policing reforms positions. There will be law-and-order types who will defend current policing levels and oppose any defunding—especially if crime rates that decreased during the coronavirus-induced shutdowns of early 2020 rebound over the latter half of 2020 as society re-opens, if not increase even further due to economic hardship. We will also see more mainstream proponents of change (from both sides of the political spectrum) who may have previously supported less controversial criminal justice reforms such as specialty courts, pre-trial diversions, and the like, and who comprise a second group favorable to some type of policing “reboot.” And thirdly (at a minimum), the Lege will hear from those who take “abolish” seriously because they believe current policing practices actually cause crime and harm local communities, and that reducing or eliminating policing is a form of addition-by-subtractions. (Stated another way, they believe that police brutality and excessive force are a feature of modern-day policing, not a bug, and that it is beyond repair.) However, one of the many problems facing this group is that their m.o. tends to favor burning everything to the ground rather than making incremental changes, and the track record of groups on either end of the political spectrum who take that approach at the Lege is very poor; we have frequently watched movements like that snatch defeat from the jaws of victory due to their inability to “know your audience.” So, that is how things are roughly shaping up at this early stage.
Now comes the curveball, because while “re-boot and re-invest” may sound like a good idea to many reformers, do you know what else is going to want a piece of any “savings” that comes from a reduction in policing? The gaping maw of the coronavirus-created budget deficits facing every city, county, and state. Anyone who has lived through a legislative session held during an economic recession knows that when government budget writers rob Peter to pay Paul, there is only one “Paul” and it isn’t “more social services for the needy.” Budgets are about to be slashed and burned at the local and state level to balance them, which means that no one is likely to see any “re-investment” in their pet issues. As a result, if state budget-writers “defund police” by reducing their budgets over the next two years, it will probably be as much or more of a result of COVID-19 than policy activists. The real questions will be how deep the cuts go and whether anything replaces what our local communities will be losing.
As for prosecutors, you may find yourself playing a dual role on this issue next session—sometimes seated at the table, and sometimes on the menu. Other than Attorney General Ken Paxton’s unsolicited offer to legislatively take these cases off your plate, so far there hasn’t been much else of substance put forth that would help or hinder your ability to seek justice in these cases. You can expect to see the usual criticisms of prosecutors’ performance in past use-of-force cases—often in a manner that assumes prosecutors hold all the cards, completely ignoring the key role played by your communities’ grand juries and petit juries—so now might be a good time to gather your thoughts and be prepared to answer questions about how you have handled those cases in your jurisdiction. (We’ll have more thoughts for you on this topic at a later date.)
Allow us to add one last wrinkle to this chaos … In our decades (yes, that’s plural) of experience at the Legislature, the “named” bills that fare the best tend to be those that focus on addressing the specific problems that led to the injustice against the bill’s namesake rather than trying to turn one tragedy into a poster child for fixing multiple perceived wrongs. Whether that holds true for the future George Floyd Act remains to be seen. It is a near-certainty that the Lege will pass some kind of “George Floyd Act” next session; the real question is what it will contain when it gets signed into law. All we can say for certain right now is that the story arc of “police accountability reform” is only just beginning, and the next session is still seven months away—which at the rate 2020 is going may feel more like seven years!—so buckle up for more twists and turns and get ready for some fascinating committee hearings and floor debates next session. (Which we may all be watching via Zoom-type technology—but that’s another story for a different update.)
Our first General Advocacy online CLE course is now available! This training features prosecutors from across Texas sharing tips, processes, and other advice on how become a better courtroom advocate. The fee is $25, and attorneys who complete the course will receive one hour of CLE credit. Click here for more details or to access the webinar, and be sure to check back periodically as this is just the first in a series of high-quality online courses we plan to offer.
New book on jury selection
Jury selection is the most important part of a criminal trial. Choosing the best topics to discuss (and the optimal way to discuss them) in limited time can help prepare jurors for the legal and factual issues they ultimately will be asked to decide. The first edition of Jury Selection by Ryan Calvert (Assistant DA in Brazos County) guides prosecutors through the process and provides helpful suggestions and examples for ensuring members of the jury panel feel safe to express their true feelings so both sides can discern whether panelists are suitable to decide a certain case. The book includes information on setting goals for voir dire, challenges for cause (including commitment questions), Batson v. Kentucky, and using voir dire to prepare jurors for the evidence and for closing argument.
For more information about the book or to order a copy, click here.
Quotes of the Week
“It can be misleading to say that we’re about ‘defunding’ the police. We’re all about reallocating the funding that goes into the police department. We can’t ask them to do everything. … It’s about investing in our communities and not militarizing our police.”
—State Rep. Nicole Collier (D-Fort Worth), Chairwoman of the House Criminal Jurisprudence Committee, in an article interviewing members of the Texas Black Legislative Caucus about future policing reforms.
“I can’t speak for any particular city, but I think it’s going to be a deeper, far deeper recession than what we saw 12 years ago. … Public safety is probably the No. 1 service that people expect from their city, and so that’s the last thing to go. But if sales tax drops dramatically enough and if property taxes drop dramatically, there may be no other choice.”
—Bennet Sandlin, Executive Director of the Texas Municipal League, in an article discussing the hard choices local governments will have to make due to the coronavirus-induced economic recession.
“I think we were careless and we went out into a public place when we should not have and we were not wearing masks. I think we had a whole ‘out of sight, out of mind’ mentality. The state opens back up and said everybody was fine, so we took advantage of that.”
—Erika Crisp, a 40-year-old Jacksonville Beach (FL) woman who contracted COVID-19—along with at least 15 of her friends—after they celebrated that state’s “re-opening” at a local watering hole.
“I think we’re several months—many months—away from normal operations in the courts.”
—Robert Schaffer, administrative judge for the Harris County district courts, as quoted in a story about the many ways in which the coronavirus pandemic continues to be a drag on resolving court dockets.
“I completely respect their rights and ability to lawfully protest. Our country was founded on rebellion and protest. I appreciate them being peaceful. … We understand the history. That’s why we take these matters so seriously. … We know there’s injustice in the system in different communities. We are always open to learn and be a better office.”
—Hillar Moore, District Attorney for East Baton Rouge Parish (LA), after local protestors marched to his house last week. (Moore was not home at the time.)