Toward fair and effective justice

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Dear Friend:

Media coverage  and demonstrations stemming from tragedies around the nation have brought necessary, and far too long delayed, attention to the pressing need to fix our broken justice system.  They serve as a sobering reminder of the continuing gap between the constitutional promise of equal justice under the law and the unfortunate reality of disparate justice in too many of our communities.

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The problems aren’t unique to Baltimore, Ferguson, and Staten Island. We face the same injustices – if not worse – right here at home. It is as persistent and extensive as it is disturbing, and the numbers don’t lie:

In 2012, African Americans made up only 18.9 percent of the Harris County population but comprised 65.8 percent of those from the county incarcerated in state prison for drug possession – despite the fact that we know drug use rates are virtually same across racial lines. According the Houston Chronicle, the Houston Police Department officers shot 121 civilians between 2008 and 2012, yet not a single officer was indicted.

These aren’t just statistics – these are real lives affected. We must decide whether we care enough about those lives to take action, right now, to move us forward toward a more fair, equitable, and effective justice system that ensures all people, regardless of race or income, receive equal justice under the law.

In the spirit of standing up for fair and equal justice and turning the nation’s attention toward meaningful reform, I want to use this Ellis Express to highlight efforts underway that need your help in order to advance justice reforms both here at the Capitol and at home in Houston.

Sentencing Reforms

Our criminal justice policies should effectively improve public safety, efficiently utilize taxpayer dollars, and treat all people equally and fairly. That seems basic enough. But Texas has historically been criticized for its wasteful, ineffective, and overly “tough” approach to criminal justice that has too often relied on mass incarceration first and asking questions later, and too often treated communities of color unjustly.

Despite steps forward in recent years, Texas still has the fourth highest incarceration rate in the United States, far more total people in prison than any other state in the nation, and persistent racial disparities. This is mainly due to Texas’ continued over-reliance on incarceration as the primary means of addressing many low-level offenses, particularly drug possession cases, and the unequal focus of enforcement on communities of color. Drug users, not dealers or violent offenders, accounted for almost a quarter of new prisoners in state facilities last year. Of those, African Americans in Texas were almost seven times as likely to receive a felony and be incarcerated for simple drug possession offenses – again, despite the fact that whites use and possess drugs at essentially the same rates.

Spending billions of dollars to incarcerate tens of thousands of people a year for lower level offenses might be justifiable if it was actually effective at making our communities safer. But study after study proves that incarceration is far less effective at reducing drug use or improving public safety than less expensive, less destructive, evidence-based alternatives like pre-trial and pre-arrest diversion programs.

With John Legend and Rep. Alma Allen at the launch of the #FREEAMERICA campaign

The positive news is that there is growing consensus among experts around what many of us have known to be true for years: the move towards mass incarceration and the war on drugs has been ineffective public safety policy, wasted billions of taxpayer dollars, and had a particularly unjust and disparate effect on the poor and communities of color.

There are proven, meaningful changes we can make to create more effective and just approaches to sentencing. We can start by advancing effective, smart-on-crime diversion alternatives to mass incarceration for non-violent drug possession cases. These alternatives have already proven to be successful at reducing crime and drug use in our communities. Advancing these smart-on-crime approaches will put Texas on the path to a more effective and efficient approach to justice and reduce the racial and economic disparities in our justice system.

I have fought hard for these reforms throughout my career. Just last month, I was proud to partner with John Legend and my friends at the Texas Criminal Justice Coalition to launch the #FreeAmerica campaign to end mass incarceration.

Below are few of the key sentencing reforms I have proposed this legislative session:

  • Senate Bill 770 would create the Texas Commission on Criminal and Juvenile Justice to study the effectiveness and efficiency of our criminal justice practices, as well as the fairness and racial equality in the application of those practices. The Commission would make recommendations to improve the efficiency, effectiveness, and fairness of those practices.
  • Senate Bill 82, the Substance Abuse Treatment and Crime Prevention Act, would reform sentencing practices for low-level, non-violent drug possession cases.
  • Senate Bills 851, 419, and 412 reform sentencing practices for low-level, non-violent drug possession cases and invest resources in drug prevention and diversion programs.
  • Senate Bill 1417 would reform marijuana sentencing laws.
  • Senate Bill 106, legislation by Senator John Whitmire, decriminalizes truancy in Texas, and I am proud to support his efforts as a coauthor. The bill requires the Texas Education Agency to create minimum standards and establish best practices to help students who have issues with truancy instead of making the act a criminal offense.
  • Senate Bill 93 would repeal the problematic Driver Responsibility Program, which assesses annual administrative surcharges against persons convicted of certain traffic offenses above and beyond the criminal penalties and court fines, often resulting in license suspension for failure to pay.

There are numerous pre-arrest and pre-trial diversion alternative that can be implemented at the local level, too, many of which require no change in state law. I look forward working with local leaders this interim to advance those reforms.

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Fair and Transparent Police Practices

Most of our police officers do honorable work, and their service is to be praised and respected. But as with any profession, we must have transparency and accountability to ensure the public trust.

To advance that goal, I am fighting for the following reforms this session:

  • Senate Bill 338 would require that the prosecutors appointed to cases involving police officer misconduct be from outside the jurisdiction of the officer in order to be prevent bias, avoid conflicts of interest, and promote public trust in the fair application of justice.
  • Senate Bill 158, which I co-authored with the lead author Senator Royce West, would expand the use of police officer body cameras, complete with proper checks and balances on their operation and accessibility.
  • Senate Bill 181 would require police interrogations to be recorded.

At the local level, our law enforcement policies must ensure that our laws are enforced in all communities equally. It is essential to move toward community policing and away from “broken windows” policing and practices like “stop-and-frisk” that disproportionately target the poor and communities of color.

Fair Defense and Equal Representation

The promise that every person, rich or poor, stands equal before the law is at the root of the American ideals of liberty and justice. Ensuring that promise is a reality requires that all people have their rights equally protected by quality legal representation when they are accused of a crime. Unfortunately, in everyday Texas, quality of justice is too often contingent on your wealth and the attorney you can afford.

We see this played out every day across the state. Most Texas counties continue to utilize an antiquated, court appointed counsel system where a judge chooses your lawyer if you’re poor, and even decides whether an attorney gets resources to investigate a case. A judge having that level of control over a defendant’s attorney creates an inherent conflict and risks interfering with an individual’s freedom to have independent representation.

These structural impediments to providing quality counsel are compounded by the failure to invest adequate resources for indigent defense. As a result, some court-appointed attorneys handle up to 900 cases in a single year. This translates into inadequate time to visit with clients, conduct sufficient research, or do a meaningful investigation. The outcome is a fundamentally unfair system of legal representation that places innocent people at risk of being wrongfully convicted simply because they are poor. That’s not a system worthy of Texas.

Texas needs to encourage and support the creation of additional public defender systems to handle indigent defense.  Evidence proves that public defender systems are the most cost-effective way to deliver quality indigent defense services and ensure low-income Texans, at the very least, receive some semblance of equal justice. Public defenders improve the quality of representation because they are independent of the judiciary and provide an institutional infrastructure that builds accountability. Additionally, public defenders use tax dollars more efficiently than court-appointed systems because economies of scale and non-duplication of services allow them to save money.

We are making progress on this front. Harris County created a public defender in 2010, which has meaningfully improved representation, but the office still handles less than 10 percent of the indigent cases in Harris County. The Fort Bend County Commissioner’s Court is to be commended for taking an important first step just a few weeks ago for voting apply for a discretionary grant from the Texas Indigent Defense Commission to create a dedicated public defender’s office in their county. I especially want to thank Commissioner Grady Prestage for spearheading this effort and working closely with his colleagues to ensure the promise that every person in Fort Bend County, rich or poor, stands equal before the law.

These offices need the funding and support necessary to create a more fair and equal justice system, so your support is crucial to their continued growth and success. This session I have fought to improve quality representation by advocating for adequate investment in indigent defense, creating more public defender offices, and filing Senate Bill 260 to limit the massive caseloads carried by court-appointed attorneys.

Ensuring Juries of Our Peers

Fair and equal justice requires we all be judged by juries of our peers who are representative of our community makeup and values. Our right to be judged by a jury of our peers must be protected through measures to eliminate the broken “key man” grand jury system, prevent outside influence and bias, and eliminate barriers to community participation.

This session, I am fighting for the following reforms to improve the quality and fairness of our jury system:

  • Senate Bill 769 would require counties to report racial and gender makeup of their juries, explain the reasons for any demographic disparities between the juries and the county’s population, and propose reforms to remedy those disparities.
  • Senate Bill 135, authored by Senator Whitmire, would eliminate the “key man” – or “pick-a-pal” – grand jury system in Texas and require grand jurors in most cases to be picked randomly, just as we select trial jurors.
  • Senate Bill 411 would require the release of grand jury records for police officer killings.

We also need to explore reforms to eliminate economic barriers to community participation. Many working folks simply cannot afford to take off of work to participate in jury service. We can alleviate those hardships by increasing juror compensation and promoting policies to encourage employers to offer paid leave for employees for  jury service.

Pre- Trial Incarceration Reform

Texans should not be imprisoned simply because they are poor, so it’s imperative we fix our broken bail bond system that results in far too many people who have yet to be convicted of a crime being locked in jail simply because they cannot afford  bail.  Currently, more than 60 percent of those in the Harris County jail are people awaiting trial, yet to be convicted of a crime and simply too poor to make bail.

I have proposed the following measures to reform bail bond and pre-trial release practices:

  • Senate Bill 1690 would allow a magistrate to release a defendant on a cash bond of less than the amount set in the bail hearing. The bill gives judges an alternative to a personal recognizance bond that will allow someone out of jail if they can’t pay the cost associated with a surety bond or the full cash bond amount.
  • At the local level, bail schedules and bond-setting policies should be revised to reduce the possibility that low-risk people remain in detention solely because of their inability to post bond, including the increased use of personal

Reliable and Accurate Justice

At the bare minimum, Texans deserve an accurate and reliable justice system: one with proper checks and balances and transparency to make sure all relevant facts come to light, evidence based on real science and best practices, and adequate procedural safeguards to ensure dependable verdicts.  Failing those basic principles creates the heightened risk of convicting the innocent and allowing true criminals to remain free, undermining public safety as well as the public trust in our system of justice.

Unfortunately, if we measure reliability and accuracy by verified mistakes, Texas leads the nation in the shameful category of proven wrongful convictions.  Progress has been made on the heels of these tragedies – with reforms ranging from eyewitness identification procedures to the creation of the Forensic Science Commission – but many of the leading causes of wrongful convictions remain completely unaddressed.

There are essential advances Texas needs to make to ensure we have evidence and results we can trust in our justice system. These include specific measures like better scientific standards for what we accept as evidence in our courtrooms, to broader measures like creating an innocence commission of experts to consistently review wrongful convictions, evaluate our system, and make recommendations to improve the reliability of justice.

This session I have filed the following bills to improve the accuracy and effectiveness of our justice system:

  • Senate Bill 81 (and House Bill 48 by Representative Ruth McClendon) would create an exoneration review commission to review proven wrongful convictions and recommend policy reforms to prevent such tragedies in the future.
  • Senate Bill 487 would ensure that vital DNA evidence can be tested to ensure accurate convictions. By making small fixes to the law, my bill ensures that wrongfully convicted Texans have meaningful access to advanced crime-solving technology to prove their innocence and assist law enforcement in finding the actual perpetrators.

These are just a handful of the vital reform we need to advance to create the system of justice the people of Texas deserve.  It’s our responsibility, each and every one of us, working together, to dedicate ourselves advancing the cause of equality and justice for all.

I will continue to fight, as my predecessor Barbara Jordan famously stated, to make “America as good as its promise” and push Texas toward a justice system that is more equitable, reliable, and effective.

Sincerely,

Rodney Ellis

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