How have criminal justice and law enforcement reform bills fared in recent legislative sessions?
There were a couple that moved farther than one would expect given that Texas reputation of being tough on crime and criminals. That reputation is changing slowly. We’ve seen an unusual bipartisan alliance over the past few sessions to make some progress on criminal justice reform. Tea Party Republicans are worried about big government and excessive criminalization. Democrats are worried about the political implications and moral impact of mass incarceration. So that’s developed into a kind of unity of purpose across the partisan divide. In fact, in the last session, several members, including Joe Moody—who has been a stalwart on networking like-minded criminal justice members together—started the Criminal Justice Reform Caucus. And it’s bipartisan, so there’s members of both parties.
The 2017 session was more productive on criminal justice reform than the 2019 session. Some of the things that didn’t pass in 2019 that had some momentum were reforms of bail practices, which died in the Senate. There were other moves to limit arrests for non-jailable offenses like traffic violations. This is the Sandra Bland Act that, years removed from the untimely death of Sandra Bland, still didn’t get the momentum to get past both chambers. ... The other issue was decriminalization of marijuana, another issue that was dealt with mostly at the local level.
Do you expect any of these topics that were not fully addressed in recent years will return and possibly pass through the Legislature in 2021?
I think so for a couple of reasons. No. 1, there’s been a stronger bipartisan effort to communicate peoples’ perspectives and to make sure that everyone’s on the same page in terms of reform efforts. And I think that this caucus that Joe Moody’s putting together is going to make a big move in that direction. No. 2, the governor’s likely to put some of these items on his emergency list so that the Legislature can get a jump-start on it. This is going to be a very difficult session; it’s going to be a lot of wrangling over the budget, and that’s going to eat up a lot of oxygen, so any movement on a policy issue that can get a head start is critical to passage. So I think the governor doing that would be an aid to these kinds of reform efforts. And the third is that the untimely and horrible death of George Floyd has sparked a momentum towards making reform efforts a priority. So those three things together is a good recipe to see progress on the legislative items in a Legislature where it’s hard to get attention to issues.
Do you think the nationwide protests stemming from George Floyd’s death will result in a focus on law enforcement in the Texas Legislature next spring?
I think so. I definitely think that you’re going to see the governor put some consensual items on the agenda to make policing more fair and just. I think that’s likely to be a part, but exactly what he’ll do we don’t know. He kind of hinted at a couple things that seem like they would be acceptable, and it might not all directly relate to the policing issue; it may also be about criminal justice. About problems in prison and prisoner care or inmate care. ... And again, that’s stuff that Republicans like because it decriminalizes and minimizes the overall police state that they find objectionable.
How might lawmakers from distinct areas of the state approach some of these issues differently?
The key players on the Republican side who have pushed have been people from suburban north Texas. ... You do see the kind of old guard Republican who is worried about the spread of crime, especially violent crime, but this new breed of Republican has been interested in different problems related to crime and policing issues. So it’s been a bit of a divide between the rural members who tend to be a little older or who have been in the Legislature for longer and the more suburban members who have been there for less.
This is going to be a rough session to get bipartisan action accomplished, so that’s going to be the real question: Can they find a bridge in an otherwise partisan session? ... Ultimately I would say that the mix of ingredients is there to make reform happen, but there’s always a risk with this much time until the legislative session that something else will get in the way.
How might the new bipartisan Criminal Justice Reform Caucus influence the development of bills on these topics next spring?
I see this as a genuine interest to organize people, the members who want to see progress on criminal justice reform issues. ... The Sandra Bland Act failure was a failure of communication and of unity, and this caucus presumably can solve both of those problems. I’m guessing that this is an opportunity to bring people together that otherwise would be a challenge in a short legislative session that typically is highlighted by acrimony. I think it’s a good step in the direction of moving the needle.
Attorney General Ken Paxton recently advocated for his office to investigate police killings and deaths in police custody. Is that something that could be accepted by lawmakers next year?
I think in general that the Legislature and those pushing reform would be willing to allow for an external body to investigate police wrongdoing, but I would find it difficult to see Democrats agree to let Ken Paxton’s office do it. This is a personal-political problem that is unlikely to move in the direction of allowing the attorney general to oversee police investigations. Basically, the Democrats don’t trust Ken Paxton or his office to do a thorough job in the way that they would want. ... I don’t know, given the current climate, that, that in particular would be successful.
Historically, how would you describe Texas lawmakers’ attitudes toward legislation related to criminal justice reform?
There used to be a political net good in being tough on crime, and the state needs revenue. So for a long time, that was just the way the Legislature worked in part because this has been a state that was conservative, that wanted to see crime reduced or eliminated, and favored the death penalty in almost every circumstance available. So that really played into politicians from both parties pursuing a very aggressive ‘get tough on crime’ line through the 1980s and 1990s. ... The presumption was that the people of Texas wanted to keep a tough-on-crime approach, and politicians on both sides played along.
How might ongoing responses to policing and criminal justice in the state’s large cities this year affect the Legislature’s work next spring?
There’s often a trickle-up effect where local governments try to make reform efforts stick, and if they’re not fully successful they’ll pressure the Legislature to follow along. If enough local governments do that then you do see a cascade of movement towards codifying what many local governments are already doing, so I suspect that you would see movement in that direction. ... The other reason I think they’re acting first is that they don’t fully trust the Legislature or the powers that be in state government to do as they wish or alter what they want to do in ways they don’t want. There’s been a tremendous limit to what many local governments can do on a range of issues so that local government might want to act on their own without waiting for or allowing the state to step in to set rules.