The Best and Worst of the 84th

Governor Abbott spent the weekend clearing his desk of all pending legislation, and thus we can finally close the book on Texas’s 84th legislative session. This year’s session wasn’t especially unusual, in that it saw its fair share of “chubbing,” glad-handing, horse-trading, and fist fights. Also typical was the sheer volume of threats leveled against Texans’ civil liberties. Thankfully, most of the worst proposals failed to make it onto the books—while some of the better ones did.

Here’s a rundown of some of the issues that mattered for civil liberties:

LGBT Rights:  The Texas legislature faced a serious quandary this year. On the one hand, some of our politicians really, really despise the idea of LGBT equality—more now than ever, with the Supreme Court’s marriage equality decision due any day—and are terrified of the possibility that it will become a reality. On the other, Indiana’s “religious refusal” debacle demonstrated just how catastrophic state-sponsored discrimination is for business.

Against that backdrop, LGBT rights fared well this session. Our LGBT Equality Coalition rose to the challenge, and Texas business leaders spoke out against discriminatory laws. Legislators introduced more than 20 bills and two constitutional amendments designed to enshrine discrimination into state law, but in the end none of them passed.  The only LGBT-related bill to become law (signed by Abbott with great fanfare) merely reaffirms that clergy can refuse to perform marriages that violate their religious beliefs, a right already guaranteed by the First Amendment.

Reproductive Rights: Not satisfied with passing the infamous HB 2 in 2013 (now before the Supreme Court) and the closure of more than half the states abortion clinics, extremist legislators tried to double down.  They introduced measures to eliminate an exception to the state’s 20-week abortion ban for severe fetal abnormalities and to block insurance from being used to pay for the termination of a pregnancy. While both of those measures failed, others did not.

In a particularly mean-spirited attack, the legislature revamped the “judicial bypass” process, making it even more difficult for young women who are victims of neglect, abuse, or sex trafficking to access abortion services. To add insult to injury, politicians also blocked access to breast and cervical cancer screenings for patients of Planned Parenthood, and diverted more state funding to discredited “crisis pregnancy centers,” whose literature has been described by the Texas Medical Association as “needlessly graphic” and “factually inaccurate.”

Criminal Justice:  Groups from every segment of the political spectrum united to reform the state’s criminal justice system. The Smart-on-Crime coalition helped enact a series of measures designed to streamline the penal code, reduce recidivism, improve the reintegration process, and give former convicts a better chance for success in life after prison. Disadvantaged school children need no longer fear a fast track to the prison system, now that truancy is no longer a crime. School police officers will receive specialized training to help them better meet the needs of the students they serve and protect. Prisoners destined for solitary will now undergo mental health screenings.

Immigration: The rights of the undocumented fared better than one might have expected in the current political climate.  For one, the fact that Texas DREAMers will continue to have access to in-state university tuition was welcome news. Additionally, two attempts to wrest immigration enforcement from the federal government were thwarted: the Interstate Border Enforcement Compact, designed to allow member states to coordinate border control efforts independent of the federal government, and the Sanctuary Cities bill, which would have required local law enforcement entities to enforce immigration law at the expense of their own local priorities.

However, one immigration measure that enjoyed broad support in the legislature was passed into law. A sweeping border protection bill that costs hundreds of millions of dollars, HB 11 shows that our legislature only embraces small government and fiscal conservatism when it concerns tax rates and deregulation, but not so much when civil rights, police overreach, mission creep, and government surveillance are on the table. The law sets up a centralized surveillance center, allows for southbound checkpoints of American citizens still in the U.S., and implements a hiring surge of officers, which has proven a reliable method for fomenting corruption and abuse in law enforcement.

The bottom line: In spite of some victories for civil liberties this legislative session, lesbian, gay and transgender Texans can still be fired, evicted, or denied services in much of the state, regardless of whether the Supreme Court rules in favor of marriage equality. Texas women seeking abortion access find ever more obstacles in their path, with many more clinics forced to close if the Supreme Court refuse to step in. We still have one of the highest rates of solitary confinement in the country. Private prisons continue to clamor for more inmates, and the state still has heavy incentives to provide them. And legislators continue to push for proposals that would punish immigrants for seeking a better life.

The legislature reconvenes in 2017, and until then there is much work to do.

Let’s Turn McKinney into an Opportunity

On June 5th McKinney police responded to a complaint regarding unwanted teenagers at a community pool. What ought to have been relegated to a footnote in a local police blotter has become yet another variation on a depressingly routine theme in the racial politics of American policing. Rather than exercising common sense and restraint, officers on the scene opted for escalation, intimidation, and excessive force against a group of young black people.


When we see the image of a McKinney cop drawing his weapon on two unarmed black teens while pressing his knee into the back of a 15 year-old girl who’s calling out for her mother, it is a wretched sign of the times that one of our first thoughts is, “It could have been worse.” But it could have been worse, because it has been, for Eric Garner, Akai Gurley, Tamir Rice, John Crawford, Michael Brown, Freddie Gray, and on and on. Mercifully no lives were lost in McKinney last weekend, but the encounter nevertheless calls attention to the fact that we need a fundamental and comprehensive overhaul of our police practices, particularly when it comes to youth and communities of color.

No one should lose his life at the hands of law enforcement for selling cigarettes. No one should lose his life for taking a toy gun off the shelf in a Wal-Mart. And no one should fear for her life for visiting a community pool and objecting to her treatment by law enforcement.

The path forward is clear. According to the President’s report on 21st Century Policing, police departments need to adopt zero-tolerance policies towards racial profiling, and to increase training in implicit bias, use of force, and de-escalation techniques. Officers need to begin thinking of themselves as guardians rather than as warriors, as parts of the communities they patrol rather than as occupiers of those communities. Police departments need to engage in more and more productive dialogues with the communities they serve, to establish transparency and clear chains of accountability, and should stop altogether the aggressive enforcement of low-level infractions in communities of color. Until each and every one of these conditions are met, precisely no one should question why black teens flee when police show up.

If you wonder what that might look like, consider Nashville, where police essentially provided security for peaceful Ferguson protesters rather than lobbing tear gas grenades at them. Consider Las Vegas, which has implemented nearly 80 separate reforms in order to reduce its number of officer-involved shootings. Consider Richmond, where teens are recruited for community outreach rather than being slammed to the ground and handcuffed.

The fact that the offending officer has resigned from the McKinney police department does not settle the issue. The continued insistence that police abuse is the result of “bad apple” officers’ misbehavior actually creates an obstacle to comprehensive reform. We already have the knowledge, the tools, and the road map to bring community policing to every city in the nation. Now all we need is the will.

Take Action: Call for community policing reforms throughout the state of Texas.

Too Crazy to Kill?

When I was a kid, my cousin, Stevie, came to live with us in Memphis. My brothers and I were intrigued by our almost-adult cousin who never really came out of the back bedroom. We’d sneak along the hall and listen to him arguing with himself—long, angry, complicated tirades that made no sense. We first-hand saw his fear of electrical outlets, avoidance of the sun, refusal to bathe, and real consternation about his food and what might be in it. My parents tried what they could to help him; my aunt and uncle had not been successful. I heard “schizophrenia” float around the house but didn’t understand that his brain didn’t work like mine.

Then suddenly he was gone.

And even more suddenly we heard whispers he had killed someone who disturbed his sleep one night in a park in Nashville. And that the dead man was a policeman.

***

Our society has thousands of untreated mentally ill people; our criminal justice system is overloaded with even more. The legal system is not equipped to handle the burden. The capital system is not designed with a treatment goal, which is what all mentally ill people—including those who commit crimes—need so desperately.

Scott Panetti is yet another instance of a severely mentally ill man hopelessly embroiled in the criminal justice system. He has suffered from schizophrenia for decades; his terrible capital crimes illustrate it, his behavior during trial and in prison confirm it. Even a young child knows how crazy it is to dress as a cowboy and flip a coin to pick jurors while representing yourself in trial for your life.

Mental illness is not an excuse to behave badly—it can be an explanation for the behavior. Often we cannot see the depth and breadth of mental health issues like we can see physical impairments. But just like we wouldn’t ask a woman with a broken leg to run a footrace, we cannot expect normal brain behavior from someone with a damaged or otherwise dys-functioning brain.

***

I’m not sure how but Stevie’s parents, my father, and another aunt were able to testify at a hearing about his illness and his inability to understand and function in the “real” world, and the judge concluded he was too crazy to kill. Stevie avoided a death sentence in court. Instead, he was sent to a hospital for the criminally insane, where he was actually treated. He was an exception; he was lucky in that instance.

Years later, there was talk that he was cured and that he was coming home to us again. But the week my father was to go pick him up, we got word he had been found hanging from a sheet in his cell, an apparent suicide. Other prisoners my father had met over the years there confirmed the guards had something to do with it—that there was no way a Black man would “get away with” killing a white cop, no matter how crazy he was.

So Stevie was executed in the end.

Today, more than 20 years later, the state of Texas is poised to execute another mentally ill human being. If the state of Texas executes Scott Panetti next week, as a society we have abdicated our responsibility to one more of the most helpless among us.

***

My father used to tell a story of when he and my uncle Louis took Stevie and his brother Danny fishing in upstate New York, long before I was born. One time they were stopped by a park ranger who bent down to ask Stevie, “Now where are you all from, little boy?”

And Stevie answered, “Home,” and wondered why they all laughed.

Take action:

Tell Texas Governor Rick Perry and the Texas Board of Pardons and Paroles that they should stop the execution of mentally ill Scott Panetti.

Sign the Change.org petition created by Scott’s sister to join the 80,000+ people who say Texas should not execute a schizophrenic man.

Should the State of Texas Be Allowed to Do This to Children?

The primary goal of Texas county juvenile justice facilities is to rehabilitate juveniles in order to develop good behavior and deter potential repeat criminal activity. However, new amendments proposed by the Texas Juvenile Justice Department (TJJD) on chemical spray in county juvenile facilities threaten the overall objective of juvenile justice and the safety of the youths and staff involved. The TJJD has proposed amendments to the Texas Administration Code Chapter 343, which would expand the chemical use of oleoresin capsicum (pepper spray) as an ordinary restraint method at county juvenile rehabilitation centers across the state.  Not only does use of chemical spray negate the goal of rehabilitation, the use of this chemical restraint as punishment is outdated, ineffective, and harmful—not to mention, the proposed amendments lack proper definitions and guidelines to prevent the abuse of discretion in the facilities, opening the doors for medical claims against the state.

A report to the Council of Juvenile Correctional Administrators found that facilities with high numbers of restraint and chemical incidents are more likely to produce higher rates of safety problems because of youth and staff injury, suicidal behavior, and fear among the youths from injury by staff.

The reported higher rate of incidents explain why the Council of Juvenile Correctional Administrators’ annual, national survey revealed only six state juvenile corrections agencies authorizing the use of chemical spray in order to secure the facilities: The low national authorization is due to data that shows negative impacts on the staff, juveniles, and facilities when it is used. The survey also showed that 15 agencies authorized chemical restraints, but not necessarily for the staff to carry on their person. Nine of those 15 agencies only authorize chemical restraint as a last resort measure. Overall, nearly 90 percent of the total juvenile correctional agencies do not authorize staff to carry chemical spray as a means to secure facilities.

The American Bar Association (ABA) standards for Juvenile Justice allow chemical restraint only in extreme situations and under strict controls. The ABA also requires the department to adopt regulations that closely govern such use. Not only would improper training and use of chemical restraint put the youth and staffs’ health at risk but would also result in the county and juvenile facility as subject to numerous investigation and lawsuits.

Our Recommendations

At present, the proposed TJJD code allows for use when the juvenile exhibits “physical aggression.” That’s a term open to broad interpretation and without a more narrow definition, there is no limit to the use of the chemical spray.

To mitigate this risk, the TJJD needs to get more specific about uses and training. For one, the amendments should strictly prohibit use to situations where there is a certain risk of life or serious bodily injury. This language would help safeguard the use of chemical spray only as a last resort effort in cases of extreme crisis. The amendment does make room for a provision that requires staff to abstain from use of the chemical on juveniles with respiratory or eye conditions. Strangely enough, there’s no indication of how these individuals would even be identified. When staff members are instructed to react to any form of “physical aggression,” it’s unlikely they would stop to inquire about a youth’s eye or breathing conditions.

Also, the TJJD should better define who would be required to train the staff in proper use of the chemical spray.  The current draft is mute on this matter, a vagary that could result in improper training and place the well-being of staff and youths in danger.

The TJJD should scrap these proposed amendments altogether. Various national written standards of chemical restraint reiterate the fact that pepper spray should not be used at all. However, if the TJJD insists on moving forward with authorization, it should adhere to strict rules regarding usage, reporting of usage, and post-use practices.  To do so, the agency needs to draft amendments that are strictly and clearly defined. Presently, the TJJD falls well short of this mark and the consequences could be devastating.

Read our letter to TJJD on their proposed changes to pepper spray rules:

Update: After listening to concerns from the ACLU and our fellow advocates, TJJD has chosen to delay consideration of this new standard until January 2014.

A Win for Texas: Proposed Limits on Investment by Judges in For-Profit Prisons

Matt Simpson
Policy Strategist

On Tuesday, the Senate Jurisprudence Committee will hear HB 62, a bill filed by Representative Ryan Guillen that proposes to limit investments by judges in private prison companies. The bill would prevent conflicts of interest similar to the dramatic incident in Pennsylvania in which a judge was found guilty for routing defendants through his court and into facilities in which he held a financial interest.

Clearly, Rep. Guillen wants to prevent judges from being unduly influenced by their investment in a private prison.  The bill will also demand greater accountability and transparency among private prisons in  general.

But this is just one small step toward what should be much larger scale reforms. Rep Guillen is familiar with the host of issues surrounding private prisons: He represents a district in South Texas that includes the privately-run, federal immigration detention facility Willacy Detention Center, located in Raymondville, TX.

Those issues include the following:

First, private prisons do not have the same obligations under the state’s Public Information Act as other state-run entities. Texas should clarify in law that private prisons (and really any entity that contracts with the state) have the same obligations to provide public access to records related to the expenditure of state money. Presently, private prisons can avoid full transparency.

Second, the process by which a private company is brought into a community should involve greater public input. The local community should have a say when a private prison comes to town—or when a company takes over a publicly run facility. Too often, decisions to privatize jails and prisons are made quickly and without public input. Requiring a public hearing is one way to fix this. In 2009, the ACLU of Texas and other advocacy organizations suggested as much in HB 3903; unfortunately, that bill didn’t pass, and the proposal has not progressed since.

Finally, HB 62 almost implicitly begs the question: Who else is receiving money from private prisons? HB 3903 (from 2009) and many other proposals have encouraged the state legislature to limit investments in and direct income from private prisons by and to individuals with potential conflicts of interest, e.g., county officials, sheriffs, and other community leaders, as well as policymakers who could similarly benefit from the privatization of prisons or jails.

Rep. Guillen has taken the lead, pushing this issue to the forefront in the Texas legislature. But we should view this bill as the first step—not the final reform—toward improving transparency and accountability for privately run prisons.

Dawson State Jail targeted for closure by, well, everyone

Topping the list of potential Texas prison closures is the Dawson State Jail, a high-rise building on the bank of the Trinity River in downtown Dallas. The Texas Tribune reported this week that more than two dozen organizations signed a letter urging legislators to shutter the facility, citing failures in oversight and provision of healthcare. (UTMB provides actual healthcare services at the unit, but an investigative report last year found that staff “did not follow proper procedures by failing to call for help” in a high-profile death case.) In addition, whereas closing the Central Unit took longer than expected to wind down operations, the contract with Corrections Corporation of America to operate Dawson runs out at the end of this fiscal year. So the budget savings would be both more certain and immediate than closing the century-old, state-run Central Unit. No doubt there are other criteria for judging potential prison closures, but Dawson seems to be a likely candidate by almost any measure.

Orignally Posted by Gritsforbreakfast

You have the right to make a difference

By Gislaine Williams, ACLU of Texas Outreach Coordinator

We are fast approaching the start of the 2013 Texas legislative session. Starting January 8 through the end of May, Texas lawmakers will meet in Austin for the 83rd Legislature. They will be proposing, debating, and passing laws that will impact all of us.

As Texans, we have the right and responsibility to be a part of this political process. You can make a difference by raising your voice to demand policies that will make a positive change in our communities. Learn how to become a grassroots activist at Community Watchdog TX.

The first step is to educate yourself. Become familiar with the major issues in Texas. Learn about the legislative process and get to know your representatives. Our toolkits provide you an overview of the critical issues facing our state:

  • Criminal Justice TX: Learn about mass incarceration, the rise of for-profit prisons, and the death penalty.
  • Educate, Don’t Incarcerate:  An overview of school discipline policies pushing students out of school.
  • Religious Freedom: A look at how our religious freedoms are threatened in Texas.
  • Immigrants’ Rights:  Find out how we’re working to reclaim the civil rights of all Texans, regardless of immigration status.
  • Find out who your representatives are here.
  • Learn how a bill becomes a law here.

Contact your legislator. There are a number of ways you can contact your representative about an issue. You can write a letter, telephone, or set-up a meeting in  the local district office. Use our lobbying guides to learn how.

Ready to meet with your legislator? We can help you schedule and prepare for your local meeting. Just email gwilliams@aclutx.org to get started.

Lobby with us in Austin! The ACLU of Texas will host our first ever Symposium & Lobby Day in Austin Feb.  10-11. On Feb.  10, you will hear from advocates and policy experts working on criminal justice and immigrants’ rights issues.  The following day we will go to the state capitol to meet with representatives to talk to them about the major civil liberties issues in our state. Sign-up today to receive more information.

Stay involved. Join the Community Action Network to get updates on ways you can advocate for change this legislative session.

Velez Hearing Wraps Up With Summations, Offers Lessons on Role of Counsel

By Brian Stull, ACLU Capital Punishment Project at 12:02pm

Yesterday was the final day of the hearing in Brownsville, Texas, for ACLU client and former death-row prisoner Manuel Velez.  Judge Elia Cornejo Lopez heard summations, requested the parties to prepare proposed findings for her consideration, and announced that a decision would come at a later date.

For me, the hearing confirmed a longstanding ACLU observation: our indigent clients’ fates often hang on an arbitrary fact completely outside the client’s control and separate from questions of guilt and culpability – the quality of appointed counsel.

The hearing highlighted the following facts: 1) The state charged Manuel with the capital murder of a child, who with his mother and siblings had lived with Manuel for only two weeks, based on a theory that the child was completely healthy and only started receiving injuries during the two weeks he lived with Manuel. 2) On minimal examination, the medical evidence presented a strong defense, undisputed in this hearing, that the child began suffering very serious injuries far outside of this two-week window.  And, 3) defense counsel did not explore or present any of this evidence.

The final witness at Friday’s proceedings was one of the two attorneys who had represented Manuel at trial, who was called to explain his work in the case.  The other attorney was lead counsel, much older and more experienced; but he had died about a year ago. The second-chair attorney confessed that he deferred to the decisions of the other attorney to neither obtain the aid of a forensic pathologist nor mount any defense concerning the age of the child’s injuries.

In a bizarre twist, the prosecutor on cross examination highlighted the defense attorney’s many failures to live up to the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases – frequently upheld by the U.S. Supreme Court as the standard for evaluating counsel’s effectiveness.  The prosecutor wanted the attorney to state whether he failed to meet those guidelines, or whether he was merely blaming his deceased co-counsel.

In somber tones, the attorney said that he bore his own responsibility to Manuel, and that he knew he had failed him.  Asked by the judge what he would do differently if he had the chance, the attorney stated that it was clear to him that Manuel “is innocent.”   He said he would hire Manuel’s habeas counsel, attorneys from the law firms Carrington Coleman and Rothgerber, Johnson, and Lyons, who would clearly obtain a different result.

As habeas counsel Greg Kanan stated in today’s summations, “There was a gross failure here by defense counsel and it must be remedied by a new trial.”

That is the just result we hope to see.

In a system that allows for defense lawyers who fall short of constitutionally minimal standards and leads to the execution of innocent people, the death penalty cannot rationally stand.

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Velez Hearing Day 4: Plight of Victim’s Family Shows That Death Penalty is the Wrong Priority

By Brian Stull, ACLU Capital Punishment Project at 10:44am

Day 4 of the Manuel Velez innocence hearing on Friday in Brownsville, Texas, brought into focus the plight of the poor, depressed, and overwhelmed young mother of the child victim who died — a mother who desperately needed help but never found it.

At a 2008 trial, Manuel was convicted and sentenced to death for killing 11-month-old Angel Moreno.  Before Friday’s testimony, most of this hearing’s evidence has been the testimony of experts who showed that the child’s injuries were caused at a time when Manuel was not involved with the family and had no access to the child.

Witnesses Friday described the months leading up to the boy’s death, and the struggles his mother, Acela Moreno, faced.  A friend testified that troubles started when Moreno came to her home at 3:00 a.m., with one of her three children in her arms.  Moreno asked for money so she could flee the home of Juan Chavez, the father of the victim in this case, who was abusing her.  The friend had provided money to Moreno in the past.  On another occasion, the friend drove Moreno to a battered women’s shelter.

Friends and neighbors of Moreno described her as struggling and very depressed — she would cry frequently.  She did not have a job.  And she was caring for three children.  The witnesses told the court Moreno could be found drinking a beer in the middle of the day; that she seemed to get easily frustrated.

At times Moreno lashed out violently at her children, including an occasion when she pushed her into a ceramic statue, breaking the statue and injuring the child’s head.  An ambulance arrived and sought to take the child to the hospital, but Moreno refused.

This is a person society needs to help — not only for her own benefit, but to protect the children involved.  Too often, there are inadequate resources to help such people.  In this case, society clearly failed Moreno and her children. And it has become clear in this hearing that the result was the death of Angel.

Authorities only compounded this tragedy when they then charged Manuel with capital murder and sought his death sentence – as a direct result of Moreno moving in with him as she fled domestic violence.

The resources spent to convict Velez and to obtain his death sentence were considerable.  Three prosecutors, three experts, and two appointed defense counsel participated in the 2008 trial, not to mention the judge and court staff.  Even more resources have now gone into challenging Manuel’s death sentence – the Court of Criminal Appeals reversed it – and in challenging his conviction as false and unsupported.

Velez’s conviction and death sentence has been a tragedy for him and his family.  He has been wrongly imprisoned for seven years.  But the case also shows the tragedy of a society unable to care for its most vulnerable citizens.  By repealing the death penalty and redirecting a fraction of the resources spent to carry it out, we could help many families struggling with mental illness, depression, drinking problems, and domestic violence.  Tragedies like this one can be averted.

We also heard Friday from trial counsel from 2008, who fully admitted during testimony his serious mistakes in handling the trial.  The hearing will conclude today.

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