12.8: Prospects for Future Criminal Justice Reform
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Despite its historical reluctance to address critical criminal justice issues, the Texas legislature is keenly aware of demands from beyond its ranks to consider and pass legislation to address a number of issues: rescinding previous counterproductive legislative measures that are detrimental to the rehabilitation efforts of incarcerated individuals94; lessening the financial and emotional burdens on both incarcerated individuals and their community of supporters95; recognizing the growing imbalance between growing legislative spending on criminal justice and the dramatic reduction of community-needed resources by state and local governments96; reversing the use of policing, arrests, and criminal punishments as default responses to the mentally disabled, citizens with substance abuse disorders, and people experiencing poverty and homelessness97; over-relying on costly, reactive criminal justice responses instead of proactively addressing the underlying causes of criminality that have resulted in mass incarcerations98;failing to consider the implementation of measures that might “stem the tide of women’s incarceration, improve their conditions of confinement, and help women successfully return to their families and communities”99; refusing to recognize that women in Texas prisons face unique challenges, that an overwhelming percentage of incarcerated women are mothers, that black women are disproportionately impacted by incarceration, and that nearly two-thirds of women in Texas prisons are incarcerated for a nonviolent (primarily drug-related) offenses100; ignoring the fact that individuals with intellectual and developmental disabilities are disproportionately more likely to become involved and entrenched in the criminal legal system, either due to a lack of training or because assessment tools are not tailored to identify these disabilities101; and failing to address the numerous unique challenges and obstacles, such as increased victimization in jail and prison, longer sentences, and decreased likelihood of probation or parole inmates with mental disabilities face once involved with the criminal legal system.102 Advocates generally offer prospective solutions to the Texas legislature they believe will represent large steps toward criminal justice reform: lowering penalties for minor drug possession; requiring probation practices to focus on rehabilitation and more prudently use taxpayer dollars; reforming the parole system by providing rehabilitation before parole review; supporting reentry strategies that prioritize housing and employment stability; more effectively using funding for treatment programs that ensure participant success; and closing more prisons and reallocate dollars to community needs and crime prevention.104
Even less rare are occasions when the Texas legislature considers measures to reform the manner in which law enforcement officers perform their jobs. An unusual exception is the George Floyd Act, which proposes reforms relating to interactions between law enforcement and individuals detained or arrested on suspicion of the commission of criminal offenses, witnesses to the commission of those offenses (and other members of the public), peace officer liability for those interactions, and the confinement, conviction, or release of detained or arrested individuals. The Texas Legislative Black Caucus publicly announced its support for the bill in August 2020, but it was officially proposed as House Bill 88 until November 2020.105 If the bill is passed by the legislature and signed by the governor, it would ban the use of chokeholds by law enforcement officers in Texas, create new ways for victims of police brutality to hold officers accountable, require officers to intervene when a fellow officer is using excessive force, and end arrests for some misdemeanor offenses.106
More specifically, the act targets the current "qualified immunity" that shields law enforcement from personal civil liability for on-the-job misconduct, thus allowing officers to be sued in state district courts and providing an opportunity for retribution and monetary compensation for survivors of unwarranted police brutality. It also requires officers to attempt de-escalation tactics before resorting to force.107 HB 88 (which has also been introduced in the Texas senate in similar form) is currently languishing after its referral to a standing committee in late February 2021.108
Interestingly, the state's two agencies that regulate local law enforcement and corrections are both up for review this session.109 This review is performed by the Sunset Advisory Commission, which periodically evaluates the state’s bureaucratic agency, panels, boards and commissions and issues recommendations relating to those entities.110 Sunset is essentially the regular assessment of the continuing need for a state agency or program to exist. The Sunset process works by setting an automatic termination (Sunset) date in state law on which an agency will be abolished unless the Legislature passes a bill to continue it. This date determines when an agency is subject to Sunset review and provides the legislature the opportunity to closely review an agency’s mission, priorities, and performance and take action to address identified problems.111
Included within its review are the recommendations of others interested in, or affected by, that agency’s performance and public testimony. While the legislature makes the final decisions on statutory changes to an agency, it has historically relief heavily on the commission’s recommendations. Typically, the commission recommends whether to abolish or continue an agency. If the commission decides that a state agency is still needed, it then evaluates the agency’s programs, operations, and success in fulfilling its mission and perhaps proposes statutory changes to solve problems identified in its staff’s report and during public hearings. It also occasionally suggests that a combination of the functions of two or more agencies to streamline state government is warranted.112 The most recent Sunset staff report on the Texas Commission on Law Enforcement is highly critical of the agency's failure to impose meaningful professional standards, regulate police training, and hold officers accountable for misconduct.107
The commission’s findings generally reveal that while Texas has a continuing need to regulate law enforcement, its current approach to regulating law enforcement is ineffective. More precisely, it asserts that the state’s bifurcated approach to administrating criminal justice has resulted in a fragmented, outdated system with poor accountability, lack of statewide standards, and inadequate training because the TCOLE is only authorized to set and enforce minimum licensure standards and has no authority to set or enforce standards of professional conduct except in the case of a licensee’s criminal conviction or deferred adjudication. In addition, because TCOLE has no authority over law enforcement agencies, any significant regulatory gaps that now exist can only be addressed through changes initiated by the Texas legislature rather than the state’s fundamentally irreparable regulatory system. While the Sunset Commission has recommended continuing TCOLE for an additional two years and the implementation of changes the agency can currently implement its efficiency and effectiveness, it has also endorsed the creation of a panel to comprehensively review and recommend needed changes to improve law enforcement regulation in Texas.113
94. “Letter to Texas Board of Criminal Justice Chairman: Inspect 2 Protect ‘Creates a Barrier to Vital Support Networks,’” Texas Criminal Justice Coalition, Feb. 15, 2020, https://www.texascjc.org/letter-texa...ital-support-0.
95. “Inspect 2 Protect ‘Creates a Barrier,’” https://www.texascjc.org/letter-texa...ital-support-0.
96. “On Opening Day of 87th Texas Legislative Session, Texas Criminal Justice Coalition Urges Lawmakers to Prioritize Justice Reform,” Texas Criminal Justice Coalition (January 12, 2020), https://www.texascjc.org/opening-day...es-lawmakers-0.
97. "Opening Day,” https://www.texascjc.org/opening-day...es-lawmakers-0.
98. "Opening Day,” https://www.texascjc.org/opening-day...es-lawmakers-0.
99. “On International Women’s Day, Texas Women’s Justice Coalition Continues Fight for Better Outcomes for Women Impacted by the Justice System,” Texas Criminal Justice Coalition. (March 8, 2020), https://www.texascjc.org/internation...tcomes-women-0.
100. “InternationalWomen’sDay,”https://www.texascjc.org/internation...tcomes-women-0.
101. “New Report Shows How Individuals with Intellectual and Developmental Disabilities Experience the Criminal Legal System in Texas,” Texas Criminal Justice Coalition (October 28, 2020), https://www.texascjc.org/new-report-...nce-criminal-0.
102. “Developmental Disabilities,” https://www.texascjc.org/new-report-...nce-criminal-0.
103. “Opening Day,” https://www.texascjc.org/opening-day...es-lawmakers-0.
104. “Opening Day,” https://www.texascjc.org/opening-day...es-lawmakers-0.
105. Austin Sanders, “Will the Texas Legislature Take on Police Reform?“Austin Chronicle, Jan. 15, 2021, https://www.austinchronicle.com/news...police-reform/.
106. Sanders, “Police Reform?” https://www.austinchronicle.com/news...police-reform/.
107. Sanders, “Police Reform?” https://www.austinchronicle.com/news...police-reform/.
108. Tex. H.B. 88, 87th Leg., R.S. (2021).
109. Sanders, “Police Reform?” https://www.austinchronicle.com/news...police-reform/.
110. Texas Sunset Advisory Commission, “Sunset in Texas – 2020-2021 – 87th Legislature” (September 2019), https://www.sunset.texas.gov/public/...0Decisions.pdf.
111. Texas Sunset Advisory Commission, “Sunset in Texas – 2020-2021 – 87th Legislature.” Texas Sunset Advisory Commission, “Sunset in Texas – 2020-2021 – 87th Legislature,” (https://www.sunset.texas.gov/public/...0Decisions.pdf.
112. Texas Sunset Advisory Commission, “Sunset in Texas – 2020-2021 – 87th Legislature,” https://www.sunset.texas.gov/public/...0Decisions.pdf.
113. Sunset Advisory Commission, Staff Report with Commission Decisions – Texas Commission on Law Enforcement - 2020-2021 – 87th Legislature (January 2021), https://www.sunset.texas.gov/public/...0Decisions.pdf.