The Power of Pragmatism

Despite Governor Perry’s last-minute veto rampage, the 2001 session was a good one for criminal justice reformers in Texas. Though weakened somewhat by amendments, the Fair Defense Act revamped the indigent defense system by setting statewide standards for court-appointed lawyers and providing money to improve the systems in each county. Lawmakers also banned racial profiling and the use of race as a predictor of future criminal behavior. Two of the “Tulia” bills, named for a now-notorious undercover drug sting in the Panhandle, also became law: Police must now corroborate evidence collected by undercover informants in drug stings; and law enforcement agencies now have easier access to the disciplinary records of potential employees, making it harder for rogue cops to hop from job to job with no accountability.

Representative Juan Hinojosa (D-McAllen), chair of the House Committee on Criminal Jurisprudence, deserves much of the credit. Instead of looking for issues with which to browbeat his ideological opponents, he searched for solutions. The 55-year-old attorney, who served a 10-year stint in the House from 1981 to 1991 before being re-elected in 1997, credits his experience as a Marine squad leader in Vietnam for his approach to lawmaking.

“The legislative process is a lot like Vietnam,” he said. “You never know when you’re going to get ambushed. It could come from the right, from the left, from behind, from the front. Even friendly fire–when somebody you thought was on your side starts taking shots at you on a bill because they’re getting pressure.”

Despite considerable fire from cops and prosecutors, criminal justice reformers found a staunch ally in Hinojosa this session. “It was genuinely an honor to work with him,” said Will Harrell, Executive Director of the ACLU of Texas. “He’s not there for Hinojosa, he’s there for Texas. He’s got a deeply honed philosophy, but he’s pragmatic. He’s without question the most effective member of the House.” Hinojosa also got high marks from Keith Hampton of the Texas Association of Criminal Defense Lawyers. “His process is healthy because it’s wide open. He tries to give a full hearing to the widest variety of criminal justice bills that he can. Some committee chairs are smitten with their power as chairs. He’s not like that.”

Hinojosa spoke with T.O. after the session.

Texas Observer: How would you rate the past session?

Rep. Juan Hinojosa: We’ve had a great session in terms of the Tulia bills and corroboration of evidence. We’ve reformed to a certain extent the asset forfeiture laws. We now prohibit the use of race to predict the future criminal behavior of a person. We stopped racial profiling. We have had a great session.

TO: To what do you attribute the success in moving criminal justice reform bills this session?

JH: President Bush’s campaign brought a lot of scrutiny of the Texas criminal justice system. People were able to see some deficiencies–some perceived, some real–in the way we apply the death penalty, in the way we deal with people who are mentally retarded, in the way we deal with asset forfeitures, the way the system did not seem to be as fair as we thought it should be. I’ve always said this: One of the foundations of any criminal justice system is the trust and confidence of the people. I think that trust and confidence was shaken when DNA [testing] nationwide exonerated over 92 people, including a very visible case here in Austin, the Christopher Ochoa case. This guy served in the penitentiary for 12 years, but he was coerced by the police to confess. We knew then that there were flaws in the system, that we needed to try to correct those errors.

TO: The sting in Tulia, which sent many black citizens to jail on the word of a discredited undercover officer, was one of the events that crystallized demands for reform. What is your reaction to the system that allowed that to happen?

JH: What happened in Tulia is just completely wrong. To allow a citizen to be convicted based on the testimony of an undercover agent without any corroboration whatsoever, when that agent has a long criminal record or disciplinary problems–it tells you that there are flaws in the system. The War on Drugs has become a war on people. We’re losing our civil rights, the right to privacy, because of our quest to prosecute people who use drugs instead of looking at drugs as a health issue.

TO: How do you view your role as chairman of Criminal Jurisprudence?

JH: I’m very up front with them and I tell it the way it is. I’m not here to favor the prosecution. I’m not here to favor the defense bar. I’m here to look in terms of the overall picture of the whole system in terms of public policy. So sometimes I’m going to go with the prosecution and sometimes I’ll go with the defense lawyers, but my main objective is putting a fair and just system in place in terms of good public policy for the state of Texas. We need to abide by our Constitution and by our laws and protect people’s privacy and due process.

TO: What were some of your disappointments this session?

JH: I was very surprised by Perry’s veto of the bill banning the execution of the mentally retarded. I think it was a lack of courage. Even President Bush said he would support the ban.

Another big disappointment was the life without parole [bill, which encouraged juries to give an alternative to the death penalty in capital cases]. I had the votes. Unfortunately, the debate started late in the day the day after Mother’s Day and some of us didn’t make it in. That hurt, losing that bill.

TO: What’s your reaction to Perry’s veto message for the ban on execution of the mentally retarded, in which he said the bill would be an insult to juries?

JH: I don’t think it has anything to do with juries. That’s as simple as it gets We need to provide guidance to the juries. You cannot leave all of that discretion to them. Let me be very clear. A civilized society does not execute the mentally retarded. Our society should not be so bloodthirsty. There’s a difference between the mentally retarded, who don’t know the difference between right and wrong, and those who know what they’re doing.

TO: What action of the Legislature will have the biggest effect on the criminal justice system in Texas?

JH: It’s a combination. We passed two very important bills. Now, when a peace officer moves from one law enforcement agency to another, he has to disclose all the disciplinary actions taken against him [H.B. 2353]. [Before the law was enacted], you could be hired as a police officer if you’ve beaten up people, if you’ve had a lot of complaints filed against you. Even if you have a criminal record. The new employer doesn’t know that. The bill will have an impact on [officer] quality and improve law enforcement.

The second one [H.B. 2351] deals with informants. It is unacceptable that on the word of some weasel that you can convict a citizen and sentence him to 99 years to a penitentiary without any corroboration. I think that’ll go a long way. You’ll find that a lot of law enforcement people agree with this. The vast majority of law enforcement people are hard-working individuals who try to do their job right. They take pride. They’re professionals. They also know that they have some weasels, some crooks within law enforcement. If pressure is put on law enforcement to clean up their act and not hire people like Tom Coleman [the undercover officer in Tulia], it’ll have an impact. We don’t want people like Coleman taking shortcuts and convicting people who are innocent. Law enforcement in general agrees with that position.

TO: What are the prospects for a death penalty moratorium?

JH: I don’t think it’s going to happen here in Texas. We have a killing machine in place. We can slow it down to make sure that we are actually convicting the guilty and executing those who are guilty and deserve to be executed. We need to be very cautious. We have already shown that there have been innocent people who have been found guilty and had to spend years in the penitentiary before they were exonerated by DNA. I support the death penalty, but I want a fair, just process that provides every opportunity for the defendant to prove that he’s not guilty or if there’s any other mitigating factor.

TO: What is on your agenda for the next session?

JH: One of the areas I’d really like to look into is the drug task forces. How they operate. How they’re supervised. What accountability is in place. How they hire informants and peace officers who move from task force to task force without having a background check. What they do with the money.

TO: What is the biggest challenge the Texas Legislature will face in the next 10 years?

JH: One is to keep the Texas Legislature from being partisan. The reason I say that is, the vast majority of the time it doesn’t matter if you’re a Democrat or a Republican. There’s a lot of crossover on votes. You need to look at issues based on merit, public policy, on what’s good for your district and the state of Texas.

In Congress, they’re so partisan that they kill that type of initiative. If you don’t vote along party lines, they punish you and they take away committee assignments. Here we assign committee chairmanships to both Republicans and Democrats, and that’s the way it should be. I think when every issue is partisan it’s a great disservice to the general public.

Chris Macleod is a writer in Austin.