July-August 2016

Are you ready for CCP Art. 42A.054?

Rob Kepple

TDCAA Executive Director in Austin

The world of prosecuting violent offenders revolves around the universally understood moniker, the “3g” offense. We all know what that means: Article 42.12 §3g of the Code of Criminal Procedure. That is the engine of sentencing when it comes to violent offenders because it drives who cannot get probation from a judge for a violent offense, and usually it identifies who must do half of their sentences or 30 years before he is eligible for parole. It is indeed the heart and soul of our Texas sentencing scheme.
    But not for long. Get used to casually talking about an “054” offense, as in Article 42A.054 of the Code of Criminal Procedure. (Doesn’t really roll off the tongue like “3g,” does it?) Last session, the Legislature rewrote the entirety of Article 42.12 in what is called a “non-substantive revision.” The idea was to clean it up and reorganize it after decades of legislative tinkering. Chapter 42A goes into effect January 1, 2017.
    The good news is that TDCAA’s Publications Director, Diane Beckham, with grant funding from the Texas Department of Transportation, has sent you the 2017 edition of Punishment and Probation. This book contains the new Chapter 42A, plus detailed disposition charts (which are so good that the legislative folks who wrote this thing asked to use her charts!). And in painstaking fashion, every footnote in the book references both Article 42.12 and Chapter 42A.
      One danger with “non-substantive revisions” is the dreaded unintended consequence. What if the legislature unintentionally did change something in the law? Well, that is why the effective date for this new law is January 1, 2017. If there is a mistake, it can be quickly fixed in the 2017 Session, which starts in January. To help flush out any possible problems, I am making the following offer: If, as you study the new article, you find an unintended, substantive change or mistake, let me know. Your prize is a free TDCAA book of your choice!  

Are prosecutors key to reforming justice?
In May, The Atlantic magazine published an article titled, “Are Prosecutors the Key to Justice Reform?” (Find it here: http://www.theatlantic.com/politics/archive/2016/05/are-prosecutors-the-key-to-justice-reform/483252.) The article trumpets the recent missives by Professor John Pfaff, who argues that one cause of “over-incarceration” is that prosecutors are simply indicting more people than in the past. (See my report on his arguments in the November–December 2015 edition of this journal, which is online at http://www .tdcaa.com/journal/2015).
    The Atlantic article’s author discusses prosecutorial discretion and doesn’t appear to be very comfortable with it, but the author’s conclusion is right on: Prosecutors play a key role in improvements to the justice system—if we want to.
    It is good to be reminded that as the state’s attorney, you have an obligation to be part of the discussion on how our criminal justice system can be improved. Indeed, the role of Texas prosecutors as advisors to our state leaders on matters of criminal justice was solidified in 1971 by the actions of Texas prosecutors and the work of legendary Harris County DA Carol Vance. That was the year that the State Bar advanced a new Penal Code (to replace the 1925 Code) at the legislature that was perhaps not quite ready. Prosecutors, who had not really participated in drafting the State Bar’s proposal, came to the Capitol and objected to its passage. It didn’t pass. That’s when Carol Vance stepped in and worked out a deal with the governor: In exchange for funding for prosecutor training, TDCAA would organize a committee to draft a Penal Code for passage in 1973. So in a very real way, our professional association was founded on a promise that we would assist our state leaders in criminal justice reforms.
    And y’all have followed through. The 1993 Penal Code reforms and creation of the state jail felony system would not have happened but for the work of prosecutors. Former Dallas County CDA Craig Watkins is credited with pushing the concept of conviction integrity units. Prosecutors in Texas have been leaders in creating drug courts and handling offenders with mental health issues. Jennifer Tharp, Comal County CDA, and Nico LaHood, Bexar County CDA, are working on a proposal for a deferred adjudication option for DWI. Most recently, Harris County DA Devon Anderson was instrumental in securing a MacArthur Foundation grant to study and overhaul her jurisdiction’s pre-trial detention system.  
    So as we get closer to the 85th Regular Session, remember that your job description isn’t just to handle the cases that land on your desk. You are the attorney for the state, and if our system is going to improve, our leaders will continue to need your advice and counsel.

What’s in a name?
The U.S. Department of Justice and Bureau of Justice Assistance in Washington D.C. drive a lot of criminal justice policy through the grants they offer to states, law enforcement, and others with a stake in our criminal justice system. One recently caught my eye: It was asking for proposals to study trauma in “justice-involved individuals.” (That is, criminals.) And more recently, one author has taken to calling folks with prior convictions for things like murder “formerly violent individuals.” Perhaps these efforts to re-badge bad guys are just part of efforts to reduce the stigma associated with having a criminal past. We shall see if they begin to take hold in our criminal justice lexicon. If it does, what is the “re-imagined” term for victims of crime?     

Welcome, new prosecutors
This is election season, so we will have many new elected prosecutors come January. Today we welcome some new prosecutors who have taken the elected position in the last couple months. They include James Hicks, CDA in Taylor County, John Best, 119th DA in Tom Green County, Ken Bellah, CA in Terrell County, and George Poage, CA Pro Tem in Sterling County. Congratulations, and let us know what we can do to help you settle in!

The final report from the Prosecutorial Oversight Tour
In March the Innocence Project issued its final report on the Prosecutorial Oversight Tour that it began back in 2011. You can read it here:
http://kzqb-2dp8.accessdomain .com/wp-content/uploads/2016/ 04/IP-Prosecutorial-Oversight-Report_09.pdf.
    If you missed it, you were not alone. As you may recall, when the issue of prosecutorial misconduct was bubbling back in 2012, TDCAA did some ground-breaking work examining the issue in Texas and issued our own report. You can read it here: http://www.tdcaa.com/ reports/setting-the-record-straight-on-prosecutorial-misconduct. After our report issued, the Prosecutorial Oversight Coalition promised to get with us and discuss our findings and proposals for action, but we never heard from them again. That is, until we got this final report in our mailbox recently.
    If you read the report, you may get the feeling that I had when I reviewed it: It is stale, frozen in time from about four years ago. Perhaps that is why you didn’t hear much about it. Indeed, the report ignores the corrections to the record that we made in our report and does not mention the significant actions that Texas prosecutors have taken since 2012 to address the issue of misconduct:
•    Prosecutors pushed, worked for, and supported full discovery in Texas, now called the Michael Morton Act (MMA).
•    Michael Morton was our keynote speaker at TDCAA’s Annual Criminal and Civil Law Update following the passage of the Act.
•    We have multiple trainings on cognitive bias, including another scheduled at our 2016 Annual.
•    A prosecutor wrote and passed a bill mandating Brady training for all prosecutors.
•    TDCAA designed and delivered that mandatory training and has provided additional Brady and MMA training at every seminar for four years.
•    Prosecutors did not object to legislation mandating that reprimands against prosecutors be public.
•    TDCAA is in the middle of designing a whole new course on management to address issues raised by the wrongful conviction experiences in the ’70s and ’80s.
    What is great about our profession is the dedication y’all have shown to making it better. You have a tough job, but your dedication to getting it right is inspiring.