There has been a lot of speculation that due to COVID, the budget shortfall, and a variety of other factors this year may see a somewhat subdued legislative session with fewer bills than usual crossing the finish line. Be that as it may, there were a number of excellent bills in the criminal justice reform arena which came close to the finish line last session only to fall ever so short. We encourage legislators to pick up the torch and take those issues the distance this year. Following are a few specific suggestions.
During a press conference about criminal justice priorities on January 21, Governor Abbott emphasized his desire to enact bail reform through the Legislature this spring; he later named the issue one of his five emergency items for the 87th Legislature. Previously, lawmakers in the 2019 legislative session fell just short of passing such legislation despite multiple bills and involvement from the Governor’s office. Bail reform was not the only criminal justice issue shelved: liberty-minded reforms concerning automatic driver’s license suspension for drug convictions and the decriminalization of low-level marijuana possession were also left on the table two years ago. As lawmakers now enter the early stages of the 87th Legislative Session, they should pick up where they left off two years ago and finish the job on bail reform, driver’s license suspension for drug convictions, and the decriminalization of low-level marijuana possession.
Judges usually make bail decisions based upon only the criminal charges at hand, with almost no regard for the defendant’s criminal history or future risk to the public. In 2017, for example, a Smith County judge released a man on a $15,500 bond for assault, unaware of his violent criminal history. That man went on to kill a state trooper. Texas taxpayers also foot the bill for the huge number of nonviolent defendants kept in pretrial lockup in county jails. According to Right on Crime, a national criminal justice reform organization, seventy-five percent of the county jail population in Texas consists of pretrial detainees unable to afford cash bail. Requiring judges to rely on risk assessments when deciding bail, which would incorporate the severity of the offense and the defendant’s criminal history, is an absolute win. This change would not only reduce the public cost but keep more violent defendants in jail.
While lawmakers filed multiple bills last session which would have introduced risk assessment tools, H.B. 2020 emerged as the frontrunner due to the Governor’s support. The bill would have created a judicial commission responsible for creating a risk assessment tool for county judges to use when deciding bail. Although the House passed it, the bill ultimately ran out of time in the Senate. Senator John Whitmire, the Chair of the Senate Committee on Criminal Justice, pledged at a recent event that they would try again. The Legislature should take advantage of last session’s momentum and pass similar legislation to require risk assessments in pretrial bail decisions.
Driver’s License Suspension for Drug Convictions
Texas law requires the automatic suspension and denial of a driver’s license for six months for any person convicted of a drug offense. For felony offenses, this six-month clock begins after they have served their prison sentence. The suspension applies even if the conviction has nothing to do with driving. This restriction is a model example of collateral consequences, or laws that limit the liberty of offenders beyond their original sentence. While most states have eliminated this policy, Texas still suspends a prolific 13,000 driver’s licenses each year for drug offenses unrelated to driving. A suspended driver’s license makes it much more difficult for drug offenders to take themselves to work, thereby crippling their opportunity to provide for their families. Offenders ought to be able to contribute lawfully to the economy with minimal government interference.
Last session, lawmakers filed companion resolutions in both the House and the Senate that would have allowed Texas to opt out of the federal law encouraging these policies. While the Senate approved their version, both died in the House. Thankfully, both chambers will have the opportunity this spring to approve the exact same resolutions. Legislators need to prioritize this change so that the state does not bar offenders from building meaningful lives due to charges unrelated to driving.
Decriminalization of Low-Level Marijuana Possession
In Texas, possessing two ounces or less of marijuana is a Class B misdemeanor, punishable by a fine of up to $2,000 and up to 180 days in jail. According to analysis by the National Organization for the Reform of Marijuana Laws, a non-profit marijuana policy organization, eighty percent of statewide marijuana arrests in 2018 were in this lowest category. Our state retains some of the strictest criminal punishment for an activity that does not violate anyone’s individual rights. Pursuing criminal charges for marijuana possession has been one of the primary drivers of government expansion in recent decades, including violating Texans’ private property rights through civil asset forfeiture. Decriminalization would not go nearly as far as legalization; it would only remove the prospect of a criminal conviction and jail time for low-level possession.
Lawmakers have filed doomed marijuana decriminalization bills every session since 2001. The cause gained momentum in 2019, however, when a bipartisan group rallied behind H.B. 63, which would have eliminated criminal charges and jail time for possession of an ounce or less. Unfortunately, the bill was a dead letter in the Senate. Despite last session’s roadblock, legislators from both parties should embrace limited government and personal responsibility by pushing a similar bill forward during the 87th Legislative Session.
Texas Action supports criminal justice policies that promote personal responsibility, respect the individual liberty of those convicted, and maintain the fiscal health of our state. These three issues impact those principles. In several areas of criminal justice policy, the Legislature came as close as ever to implementing liberty-minded reforms last session. Members from both sides of the aisle need to prioritize finishing the job this year to achieve a criminal justice system that better fits the United States and Texas Constitutions.