Eye on the Lege: Inside the 87th Texas Legislature – Episode 1: Criminal Justice Reform

[00:00:00] This is policy on purpose, a podcast produced by the LBJ school of public affairs at the university of Texas at Austin, we take you behind the scenes of policy with the people who help shape it for more visit LBJ dot U Texas study.
Welcome and thanks for joining us for a podcast series on the Texas legislature. My name is Michele Deitch and I’m a distinguished senior lecturer at the LBJ school of public affairs at the university of Texas at Austin and in a former life in the early 1990s, I was general counsel to the Texas Senate criminal justice committee.
So I’ve maintained a long time interest in what happens at the Texas legislature. I’m here today with Alicia Welch. Who’s the associate director of the COVID corrections and oversight project at the LBJ school and a long time criminal justice reform advocate. Alicia is an alum of the LBJ school and she was a dedicated student in mind during her time at LBJ.
She’s also been a former analyst for two members of the Texas house. So today we’re talking about the 87 session of the Texas legislature specifically. We’ll talk about the bills surrounding criminal justice policy and policing that state legislators are considering at this point in the legislative session, we know what’s been filed.
What’s moving through the legislative process of what has a chance of passing even more important. We know what’s not moving as we enter the home stretch of the legislative session. Now this session is already proving to be a bit of a mixed bag on criminal justice issues. There are some good things happening.
Some disappointing things and some things we’re still waiting to find out about, but let’s start with some of the good things we’ve seen legislation moving through the house that would create some significant changes for youth and young adults who are currently funneled through the adult criminal justice system, which can be extraordinarily harmful for young people.
And these are two bills that we commonly call second look. And raise the age. Alicia, can you talk to us a bit about the second look, bill?
Alicia: [00:02:13] Absolutely. So speaker pro tem, Joe Moody found HB six 86 for the third session. This bill known as second look, legislation would allow people who are sentenced when they were under age 18, who are serving a longer term prison sentence, usually 40 years to have their cases re-evaluated after serving 20 years or about half of their sentence.
The board of pardons and paroles would also take into account evidence of rehabilitation and growth. During that defined period, the bill would provide an earlier and more meaningful parole review that could lessen the number of years. People spend behind bars providing them an opportunity to rebuild their lives outside of prison.
The bill was heard in the criminal jurisprudence committee and received a very early hearing and moody had a chance to lay the bill out on the house floor the first week of April. And it was the first criminal justice bill to be voted out of the house by an enormous margin. This isn’t the first time we’ve seen second look, legislation, many States allow parole hearing that 20 years, Washington DC’s mayor signed into law.
The second look, amendment act of 2019 very recently, and other States have something similar Nevada, Washington state, North Dakota, Virginia.
Michele: [00:03:23] Wow. You know, I was listening as the bill was heard on the house floor. And to say that representative Joe Moody gave one of the most powerful floor speeches I can recall hearing did he tied this to the Easter holiday and the importance of mercy and people getting second chances.
And if we’re not recognizing the potential for kids to change, then what is our justice system for? I was very moved by it. Oh, he was
Alicia: [00:03:51] remarkable. And he just did a stunning job. And one quote, I think that stood out to us is that he said specifically in speaking about Jesus and the trial that Jesus was on, of course, certainly the bill was heard shortly following the Easter holiday.
He said, His experience reminds me that our human systems can and do get it wrong. And in the context of speaking with the Texas legislature, I just think that was a phenomenal way to phrase exactly what needed to be said about this bill to really get the support it needed to, to pass that day.
Michele: [00:04:21] And it, and it did pass overwhelmingly, as you said.
Alicia: [00:04:24] Absolutely. So let’s talk about two other bills that would create important changes for young people involved in the justice system that were voted out of the juvenile justice and family issues committee just this week. Chairman Dutton’s bill HB nine 67 would raise the age of criminal responsibility to age 18 rather than age 17, as it is now.
And representative Jean loserville, bill HB 47 would keep kids 12 and under, out of the juvenile justice system. In most cases. Michele, you really paved the way on this issue in Texas. Can you talk a bit about the history of the bill, why it’s so critical and how behind the times our state really is on this critical, critical
Michele: [00:05:01] reform?
Yeah. So the raise, the age bill ensures that 17 year olds who commit a crime are sent through the juvenile justice system, rather than through the adult criminal justice system, which would lead to much worse outcomes for them. Right now, when you turn 17, you go to the adult criminal justice system.
Whether you’re charged with shoplifting or capital murder. Texas is one of the last States in the country to raise the age to age 18. I think most people sort of assume it’s age 18 and you’ve got to be 18 to do anything. Whether it’s getting a tattoo or joining the military. But in Texas, when you’re 17, you’re an adult for criminal justice purposes.
Well, we know a lot more now than we used to know about the brain. And we know that kids’ brains are still developing up until age 25 or so, and they don’t really have the ability to. Do you think through the consequences of their actions, the very subject to peer pressure, but it also means that they’re very amenable to rehabilitation and change their character is still forming.
So if we send them to the juvenile system where they get access to programs and services, we can keep them from spending the rest of their lives, caught up with the collateral consequences of criminal conviction. Another thing to think about is that kids, parents aren’t involved once they turned 17. Kid can be arrested and sent to jail and the parent’s not even notified.
And another problem is that it’s really dangerous for these kids in adult facilities. They’re put in solitary confinement because there are physical risk from adults and they also have a much higher risk of suicide in these facilities. Well, this is the fourth legislative session that raised the age has been filed.
It’s always had tremendous support in the house and the Senate has been the sticking point. So the big question is, will this be the year that it passes? Texas is now one of only three States in the whole country that doesn’t have age 18. As far as the lower age bill goes, what it would do would be to get the kids, the treatment and the services they need without.
The risk of locking up young kids and putting them at high risk and facilities. So keep those 10, 11 year olds out of the juvenile system, get them in the child welfare system and get them programs and services, how they should tell us what would happen next with these bills.
Alicia: [00:07:26] Absolutely. So advocates are really hoping to see these bills swiftly moving through the house calendars committee and voted out of the house of representatives so that we can send it to the Senate in hopes of.
Of it moving through that chamber justice expeditiously. In time for the governor to finally finally sign it
Michele: [00:07:43] into law fingers crossed on that, not just juvenile justice, but, um, policing issues are very much on the mind of legislators right now. What’s happening on this front?
Alicia: [00:07:53] Sure are. So this session representative Sinfonia Thompson filed HB 88.
The George Floyd act a major police reform, bill and Otter George Floyd, which also includes critical provisions left out of the Sandra bland act. When it passed two sessions ago in 2017, the bill was given an early hearing in the Homeland security and public safety committee, which usually is a good sign, but it’s still stuck in committee waiting for chairman white to bring it up for a vote.
Michele: [00:08:20] So what did that
Alicia: [00:08:21] bill? So the bill includes important provisions that would have better protected George Floyd, Sandra bland in the countless other black Texans that were killed or seriously harmed by law enforcement. The bill would ban choke, holds and require officers to intervene. If their partner is using excessive
Michele: [00:08:37] force.
So something that really goes, that really goes right to the heart of what happened to George.
Alicia: [00:08:43] It does. Absolutely. And at the hearing, the center of the debate over the bill was the removal of qualified immunity for police and existing mechanism that protects officers from lawsuits. When they’re accused of violating someone’s state constitutional rights, an issue that we’ve seen come up in other incidents around the country.
Michele: [00:09:01] It’s talked about a lot. And that issue of qualified immunity is so hot right now, all over the country. It is
Alicia: [00:09:08] absolutely and very controversial. I mean, on the one hand police officials and other opponents of the bill playing qualified immunity, protects government employees from frivolous litigation.
However, as we saw in the wake of George Floyd’s desk, the public is growing tired of the criminal justice system treating officer’s excessive use of force as quote unquote frivolous. And to that point, representative Thompson was clear that removing this protection is not about punishing the good cops.
There are many of them out there. And she was sure to say that everyone is thankful for their service and experience legislature. Representative Thompson said that the bill is about preserving the sanctity
Michele: [00:09:45] of life. Another really critical provision in the bill would require police to stop arresting people for classy, misdemeanors and classy misdemeanors or things like speeding or driving with a broken taillight.
Right now, those. Classy misdemeanors can only result in a fine they’re fine. Only. So the worst thing that could happen to you, if you’re convicted of that class C misdemeanor is you pay a fine. So this provision would require the police to stop arresting people for those kinds of offenses and just give them a ticket.
There’s also a separate bill that contains just that provision. That’s a bill that’s been around for about 20 years now and it passed the legislature back in 2000 and. One or 2003. And it was unfortunately vetoed by then governor Perry at the moment, the George Floyd act, which is one of the highest priority bills for many legislators and many advocates.
This session it’s stuck in committee, it’s waiting for a vote before it can come out and get debated on the house floor. It sure
Alicia: [00:10:50] is. And it was a remarkable committee hearing. So, um, I can only hope that they are fiercely considering that Michele let’s move to, um, prison reform. Could you give us a window into what’s happening with respect to prison reform?
Michele: [00:11:03] Sure. Well, one of the most important bills this session is representative Jarvis Johnson’s bill house, bill 1598. That bill would create. An independent oversight mechanism for the Texas department of criminal justice. It’s important to note that every part of the criminal justice system in Texas, the juvenile system has an independent ombudsman that makes sure that the kids inside those facilities are safe.
And that their rights are respected. The jails in the state have the Texas commission on jail standards, which sets minimum standards for the jails. And they inspect every jail facility and make sure they’re in compliance with those standards. But the prison system. Has no outside entity that is shining a light on what’s happening inside and bringing more transparency and accountability to the system.
There’s really no mechanism to inspect the facilities or to report on what is happening inside prisons. Are some of the most opaque institutions in our society. And yet people are so vulnerable inside those facilities. So we need some kind of independent oversight body to go into the facilities and do preventative monitoring of conditions.
That’s what this bill does is that it creates an entity that has. The ability to make unannounced visits into the facility, to talk to the people inside and to report out on what conditions are like inside to look for any patterns or trends or concerns about conditions inside representative Johnson is hoping that this bill will be heard very soon and I’m looking forward to testifying on it because it’s the subject of a great deal of my research in the field.
Michele.
Alicia: [00:13:03] It absolutely is. And I’m, I’m wondering if you can talk a bit about that importance of the independence part of it. I mean, sometimes agencies think that they’re perfectly equipped to monitor themselves. Could you talk a little bit about, about the independence aspect of this. Absolutely.
Michele: [00:13:20] It’s so important that oversight be independent of the agency.
Now that’s not to say the agency shouldn’t have internal accountability mechanisms. They absolutely need to have those mechanisms be as strong as possible. It’s important for them from a management perspective, but for policy makers and for the public. For loved ones with people inside. They need to know that there is someone that is not beholden to the agency that can really call things.
As they see them. It gives policy makers objective information about what’s happening inside a real. Picture on what conditions are like. We’ve seen it so successfully work with the juvenile system where legislators were kept informed about what’s happening inside and where the problems were so that the legislators can fix those problems.
No one is looking to an independent oversight body to fix the problems. It’s just to let everyone know what’s happening so that they can be addressed. Alicia. What about bail reform? That’s a huge issue right now. It’s one of the governor’s priority issues. What, what do you see happening?
Alicia: [00:14:35] Yeah. So this session, governor Greg Abbott and Lieutenant governor Dan Patrick, have each backed efforts to change the state’s bail practices.
Their priorities are aimed primarily at keeping individuals who are deemed dangerous behind bars. However, bail reform advocates argue that both bills would expand the use of pretrial detention by banning courts from releasing certain people on a no-cost personal bond while simultaneously continuing to rely on a money-based system.
Allowing someone who is arrested to quickly walk out of jail if they have access to
Michele: [00:15:09] cash. So this is really about, is this going to be a money-based system or a risk-based system? That’s exactly
Alicia: [00:15:16] right. Right. And we see that tension playing out in these conversations. In these debates, the bills are being introduced in the wake of changes.
Harris County made to its cash bail system at the direction of the federal courts, which found that the county’s cash bail practices were unconstitutional. Bail reform advocates say that the changes that SB 21 and HB 20 would make, would contradict those court
Michele: [00:15:39] orders. So there’s some real differences between house bill 20 and Senate bill 21, but the bills would really reach the same conclusion, which is they would both result in an increased use of pre-trial detention.
So keeping more people in our jails while they’re awaiting trial, before they’re found guilty of any offenses. In addition to, uh, allowing courts to prohibit releasing people who are arrested for a violent offense. It seems like they would create, um, remember which one it is. I believe it’s house bill 20 would create a statewide risk assessment tool for judges to use when estimating the likelihood that people are going to commit another crime or show up to their court hearings while the case is pending.
Alicia: [00:16:24] That’s exactly right. That’s HB
Michele: [00:16:26] 20. Yup. That one is the house bill. Yeah. And I think that, um, advocates are worried because. That kind of assessment tool is going to focus pretty heavily on someone’s past criminal convictions. But we know that people’s criminal convictions are often a reflection of the fact that there’s a lot of racial disparities in the criminal justice system.
So people get stopped more often by the police there. Found to have something in their pockets or in their car, they end up with a criminal record. And then the consequences of that arrest or search ended up snowballing with future arrests.
Alicia: [00:17:04] That’s exactly right, Michele, you know, and another point that bail reform advocates make is that the bill could lead to even more people with mental illness being stuck in jail, because it’s common to see resisting arrest or officer assault charges.
Offense is named in this bill as an egregious offense. Those are often tied to a mental health crisis. And instead of addressing that crisis, we’re having unnecessary intervention.
Michele: [00:17:29] And that really makes me think of the fact that we label so many things as violent. And of course that gets everyone very concerned, but a lot of times.
It’s not really the kind of violence that we’re all worried about. It’s we need to look at the nuances of the behavior to figure out whether this is so, and we’re truly, truly worried about and scared about that’s
Alicia: [00:17:51] exactly right. You’re absolutely right about that. And really looking at what are those contributing factors that led to this moment?
Because oftentimes it’s not a matter of understanding any sort of. Intent, which is how a lot of violence is understood in the justice system. There’s a lot more going on
Michele: [00:18:08] than that. That’s true. That’s true.
Alicia: [00:18:11] So, Michele, what’s not being addressed this
Michele: [00:18:14] session. It seems to me that there’s a continuing huge elephant in the room.
No, one’s talking about it. And that’s the impact of COVID in Texas prisons and jails. You and I, Alicia worked on a big report that we released back in November. It was a profile of COVID deaths in custody in Texas. And. It’s a report that got a lot of national attention, but despite that COVID impact on people in custody and prisons in jails and on staff has really been absent from deliberations this session, which has been frankly, pretty shocking.
We know that. Prisons and jails are Petri dishes for the spread of COVID people inside the prisons and jails are five times more likely to get infected. They’re three times more likely to die than people on the outside. As of this week, there’ve been over 300 incarcerated people who have died in Texas prisons and jails, and about 60 staff members who have died.
We’re number one in the country, in the number of deaths and we’re number three in the number of infections.
Alicia: [00:19:21] That’s absolutely right. And. And there was one prison facility, the Duncan unit where over 6% of the incarcerated population, just in that facility died
Michele: [00:19:30] every time I hear that figure, I want to pinch myself 6% of the people in one facility died.
It’s absolutely horrific. Our report had other findings as well, including the fact that 80% of the people who died in Texas prisons were over age 50. We also found that at least nine people died after they were approved for parole, but before they could be released, because there’s often a long lag time between those parole decision and the parole release, because people are supposed to take.
Programs at that point and they can last a long time.
Alicia: [00:20:05] Absolutely. Right. And, and I think, you know, what’s been stunning for us, is that in light of these really egregious findings, it seems like the legislature would want to be seriously considering some of the parole bills filed this session, including one to speed up the time between parole approval and release by allowing people to participate in programs in the community, instead of waiting to do them in prison.
And others that would allow more people to be safely released from prison if they have served substantial portions of their sentences and if shown themselves to be rehabilitated.
Michele: [00:20:37] Yeah. I think that some of these parole bills would really go very far towards, um, not only. Addressing longstanding issues with the parole system, but would also just help implement what experts have been telling us for a long time, which is we need to reduce the population of people who are locked up so that we can have some more social distancing in prison and get out the most medically vulnerable people.
So we could stop having so many people die and, um, have terrible outcomes from COVID. You’re absolutely right about that. Well, that’s all we have time for today, but the legislature always has surprises up its sleeve. So stay tuned and let’s see if these bills rests, whether there are other bills emerging is dark horses, or whether we’ll see any meaningful criminal justice reform at all this session on behalf of the LBJ school and, um, myself and Alicia Welch.
Um, Thank you for joining us for this edition of policy on purpose. And we’ll see you next time. This is policy on purpose, a podcast produced by the LBJ school of public affairs at the university of Texas at Austin, we take you behind the scenes of policy with the people who helped shape it to learn more.
Visit LBJ dot U Texas study to you. And follow us on Twitter or Facebook at the LBJ. Thank you for listening.