Friday, November 25, 2016

Time to Consider....

Below are figures how Brazos County's split criminal prosecution offices - District Attorney prosecuting felonies, the County Attorney prosecuting misdemeanors - compare to counties with a single prosecution office, typically the District Attorney.

Lubbock County and Hays County have been used for comparison. Both have large public universities present in their community and are comparable in population. The financial figures are from each county's budget for fiscal year (FY) 2017. Also included are figures from the Office of Court Administration on filed cases for the calendar year (CY) 2015. These are included to give some idea about the number of new misdemeanor and felony filings each office was responsible for during an identical period of time. Population estimates for each county are from census estimates from July 1, 2015.
Est. population                                                                              215,037

New felony indictments CY 2015                                                     2,229
New misdemeanor filings  CY 2015                                                 3,878                                           Total new filings CY 2015                                                               6,107                                        

County Attorney Office FY 2017                                              $3,179,875
District Attorney Office FY 2017                                              $3,612,335
TOTAL                                                                                     $6,792,210  

Est. population                                                                               299,453

New felony indictments CY 2015                                                      3,688
New misdemeanor filings CY 2015                                                   4,037
Total new filings CY 2015                                                                  7,725

District Attorney budget FY 2017                                             $6,513,233

Est. population                                                                                194,739

New felony indictments CY 2015                                                           909
New misdemeanor filings CY 2015                                                     3,885
Total new filings CY 2015                                                                    4,794

District Attorney budget FY 2017                                                $3,986,030

Lubbock County has 28% more in population than Brazos County with around 1600 more new criminal filings during 2015, but has budgeted $278,000 less than Brazos County for the office prosecuting the filings there in FY 2017. Hays County has 10% less in population than Brazos County, filed about 1300 fewer criminal cases and budgeted $2.8M less for the single office prosecuting criminal cases there than Brazos County did for the two offices doing the work here in FY 2017.

 What I am saying is this: it may be time to discuss consolidating criminal prosecutions in Brazos County into a single office. Not to do so makes less fiscal sense with every passing year.                                            

Saturday, November 12, 2016

It's Alive! It's Ah-live!!

The title of this post was uttered by the irreplaceable Gene Wilder in the 1974 Mel Brooks classic, Young Frankenstein. It is meant as dark humor on the Death Penalty in the United States. When we awoke on Tuesday November 8, 20016 there was reason to believe the Death Penalty was on it's own death gurney. By midnight, the Death Penalty was not only off that gurney, but ready for a metaphorical marathon run.

To understand why, start with the liberal utopia of California.

California has not executed anyone in more than 10 years. There are 741 people on California's death row, nearly three times the 254 in Texas. Dueling propositions Prop 62 and Prop 66 were on the California ballot on Tuesday, November 8, 2016. Prop 62 proposed to replace the Death Penalty with Life Without Possibility of Parole (LWOP). Prop 66, in opposition to Prop 62, proposed to speed up executions by designating trial courts to hear petitions challenging death row convictions, limiting successive petitions and expanding the pool of lawyers who could take on death penalty appeals

What better chance could there be for abolitionists to underscore their narrative that a growing consensus against the Death Penalty exists in this country? Had not recent polling showed national support for the Death Penalty at the lowest level since the 1970s? What better venue than California to translate these polling numbers to popular referendum that this growing consensus exists to end the Death Penalty? 

Ah, but a funny thing happened on the way to Herr Frankenstein's castle.

  Prop 62 lost badly, mustering a meager 46% of "yes" votes to eliminate the California Death Penalty, while Prop 66% hung on to pass with a 50.9 "yes" vote. Prop 66 will likely wreak chaos on state and federal habeas petitions in that befuddled state. Sorting out the fallout is for later. It is enough to write that Californians have spoken rather decisively: They favor the continued option of the Death Penalty.

Next up, Nebraska. Last year, their unicameral state legislature took the Death Penalty off the books as a punishment. The reason? All the fiscal and moral reasons Death Penalty abolitionists trumpet - costs of prosecution, length of appeal, and error rates among those given the ultimate penal penalty. There was also the added value argument that eliminating the Death Penalty through an elected legislature was democratic evidence of this growing consensus.

Unfortunately, there was such a popular outcry over the legislation that a referendum was placed on the Nebraska ballot to repeal the legislative action. And, alas, Igor, November 8, 2016 was not a good night for the bleeding hearts in the heart-land. Over  61% of Nebraskans voted to re-instate the Death Penalty. That folks is a abolitionist butt kicking.

So much for a popular consensus against the Death Penalty.

Finally, of course, is President-elect Trump. He will soon be nominating a Justice to the Supreme Court of the United States (SCOTUS). That appointment will not tip the current ideological balance on SCOTUS - but Justices Ruth Bader Ginsberg (83 years old) and Anthony Kennedy (80 years old) are the two oldest members of SCOTUS. If President-elect Trump replaces either, or both, SCOTUS will be conservative in ways not seen since before Franklin Roosevelt was President.

This means  the machinery of death will not only continue to engage, but a SCOTUS more focused on federalism and individual State's rights will allow States to operate that machinery with much, much less federal judicial intervention.

For example the Death Penalty case Moore v. Texas currently set for oral argument on November 29, 2016. Moore challenges the way Texas determines if capital defendants have Intellectually Disability (ID) for purposes of existing constitutional exclusion from the Death Penalty. Texas has defined ID in such a way that a capital defendant may be clinically ID, but not too ID for Texas to sentence them to death.

My sense is Texas will be called to heel by SCOTUS in Moore. However, this SCOTUS leash will get much, much longer if President-elect Trump and a GOP Senate replace Ginsburg and/or Kennedy. A state-rights oriented SCOTUS would look at the State legal chicanery at work circumventing ID exclusion from the Death Penalty in Moore and collectively shrug their shoulders.

Translation? A Constitutional right with neither remedy nor enforcement.

And the Rule of Law? A Frankenstein. 

Thursday, November 10, 2016

The Election

This blog is in the main a criminal justice blog, and the 2016 election will impact Texas criminal justice in ways large and small. So, for what it is worth, here are shattershot thoughts from local to national.

My local (Brazos County) races were unremarkable. There were no contested races, so I will comment on the closest races to my home that resonate.

I grew up in Houston, so I watched the Harris County DA and judicial races there with interest. Houston may not have the hipster Texas outlier swag of Austin, but it is more diverse, and in ways just as politcally liberal. It was no surprise then that Kim Ogg, a Democrat beat Devon Anderson, the incumbent Republican in the DA race. This outcome was expected - Anderson had made several political missteps in the last year. Ogg is qualified for the office she will take over in January. Expect expanded pre-trial diversion programs, a decision to either not prosecute - or reduce to misdemeanor level - "trace cases" - cases where only a trace amount of drugs (cocaine, etc) are found, and a scaling back of Capital Murder prosecutions.

There were also heavy losses amongst the Harris County Republican heavy judiciary. Murray Newman wrote about the damage done to the Harris County trial court judiciary as a result. Among the incumbent GOP judges who lost was Judge Stacey Bond. I serve with Judge Bond as a member of the Second Judicial Region Capital Murder Appointment Committee. She is intelligent, engaging, and a committed member of this important committee. I never practiced in front of her, but by all accounts Judge Bond was an excellent judge. She should not have been shown the door by a partisan electorate.

At the State level, Larry Meyers, the incumbent Court of Criminal Appeals (CCA) judge who chose to run as a Democrat in his re-election bid, lost to his Republican opponent, former Harris County District Judge Mary Lou Keel. It wasn't close. Scott Walker beat Betsy Johnson to replace the soon-to-be-sorely-missed Judge Cheryl Johnson on the CCA. Hard as it is to envision, expect an even more government-centric CCA.

Which brings me to the national elections. With President Trump and a Republican Senate, the Supreme Court will now add a 9th justice. That new Justice may or may not be in the mold of former Justice Antonin Scalia. Justice Scalia had a cohesive, predictable and consistent view of the Constitution. Say what you will, liberals, about Justice Scalia, but his view of the Constitution included expanded 6th Amendment confrontation clause protections for citizens. He was the leading intellectual force behind this almost revolutionary, revisionist interpretation of the confrontation clause. There is no guarantee his vision will continue with the new appointment.