Losing leverage

The purpose of bail is to ensure that the accused appears in court to answer the charge against him and to ensure the safety of the community.

When courts leave their bail decisions up to a chart without regard to a defendant's ability to pay, the courts are abdicating their responsibility to uphold the law.

Harris County is currently under a court order from US District Judge Lee Rosenthal to release nonviolent misdemeanor defendants regardless of their ability to post a cash bond. Fourteen of the sixteen misdemeanor court judges in Harris County (all Republicans) are waging war against the order because it gums up the works.

On January 31, Dutchess County Judge Maria Rosa ruled that setting bail for defendants without regard to their ability to pay is unconstitutional. The case was brought by the New York Civil Liberties Union on behalf of Christopher Kunkeli who was held for almost three months in the Dutchess County jail because he couldn't afford the $5,000 bail in his case. He eventually pleaded guilty to a misdemeanor with an offer of time served.

According to the NYCLU, 71% of the inmates at the Dutchess County jail had not been convicted of anything. They were behind bars because they couldn't afford to post bail.

Of course the local District Attorney, William Grady, didn't see a problem with holding folks pending trial. It makes his life easier because after a while, most inmates will plead guilty to almost anything in exchange for getting out of jail.

Mr. Grady contends, much like the Harris County judges, that actually following the law is "misguided." What he means, of course, is that having defendants sleeping in their own beds removes the leverage his office had over them when trying to resolve their cases. Now his office might be burdened with the task of proving their guilt beyond a reasonable doubt.

Texas ban on same-sex marriage struck down

And now Texas is the latest to fall. On Wednesday, US District Judge Orlando Garcia, issued a ruling declaring Texas' ban on gay marriage to be unconstitutional.

From the decision (courtesy of The Washington Post):

"Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution," Garcia wrote in his decision. "These Texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex."

As I wrote over a year ago, once one state legalized gay marriage the bans in other states would be declared unconstitutional on equal protection grounds. The simple fact is that once one state says it's okay for same sex couples to get married every other state will have to (even if dragged kicking and screaming) recognize those marriages. If a man and woman get married in Texas and move to New Mexico, they are recognized as married in New Mexico. They are also recognized as being married when it comes to federal benefits and taxes.

And once a state recognizes same-sex marriage the same rules must apply. Just think about the absurdity of the argument that Texas will recognize an out-of-state marriage for a heterosexual couple but won't recognize an out-of-state marriage for a same-sex couple. That is discrimination on its face. Now maybe Texas doesn't have to make same-sex marriage legal in the state - but, under Equal Protection jurisprudence, Texas must recognize an out-of-state marriage or else come up with some rational explanation for why the state recognizes some marriages but not others.

Late last year in Utah a federal judge issued a similar ruling, prompting hundreds of gay couples to get married in the waning days of 2013. The US Supreme Court then decided to issue a stay on the court's order which has led to the state putting a halt to recognizing those couples who got married before the stay was issued. Which raises the issue of whether such a move by the state would amount to an ex post facto law.

In order to avoid a similar situation (or because he wanted to have it both ways), Judge Garcia immediately stayed his order pending an appeal by the state.

The ruling puts Texas Taliban gubernatorial candidate Greg Abbot in a potentially awkward situation as he will file an appeal of the ruling and argue to the 5th Circuit Court of Appeals that the state's ban on same-sex marriage doesn't violate anyone's rights under the Constitution. While that argument may very well appeal to certain segments of the Texas population, it's hardly a ringing endorsement for inclusion.

Gov. Rick Perry couldn't resist opening his mouth and sticking his foot in it arguing that since Texas voters overwhelmingly rejected same-sex marriage in a statewide vote that the courts were meddling where they shouldn't be. I guess that the fair-haired one has forgotten, or just doesn't realize, that just because a law is on the books and supported by a majority of folks, doesn't make it constitutional. He might want to review Brown v. Board of Education as a refresher.

Trying to revive the spirit of George Wallace

The states of Texas and Mississippi have decided that the 14th Amendment just doesn't apply to them when it comes to recognizing same-sex marriage. Despite a Pentagon directive that the National Guard units in the states extend benefits to same-sex spouses in the wake of the Supreme Court's decision in the DOMA case, someone in Texas decided to ignore it.

Officials cited the definition of marriage as being between a man and a woman found in the Texas Constitution as justification for denying equal protection to the spouses of same-sex marriages. Maj. John Nichols did tell those affected by the decision that they could apply for benefits at federal installations and that the Texas National Guard would not deny them benefits.

This is precisely the issue I wrote about some time back regarding the inevitability of the legalization of same-sex marriage. These acts of defiance by Texas and Mississippi bring into question whether same-sex spouses are being treated the same as traditional spouses.

Forcing same-sex couples to apply for benefits at a federal installation discriminates against same-sex couples as they are being required to do more to obtain the benefits they are legally entitled to receive. All that remains is for one couple to refuse to bow down and then walk over to the courthouse to file suit alleging that their civil rights were violated.

From the Dallas Morning News:

Pentagon officials said Texas appeared to be the only state with a total ban on processing applications from gay and lesbian couples. Spokesman Lt. Cmdr. Nate Christensen said federal officials will process all applications from same-sex couples with a marriage certificate from a state where it is legal. 

Alicia Butler said she was turned away from the Texas Military Forces headquarters in Austin early Tuesday and advised to get her ID card at Fort Hood, an Army post 90 miles away. She married her spouse - an Iraq war veteran - in California in 2009, and they have a 5-month-old child. 

"It's so petty. It's not like it's going to stop us from registering or stop us from marrying. It's a pointed way of saying, 'We don't like you," Butler said. 

She said she was concerned the state would withhold survivor benefits if something happened to her wife while she was activated on state duty rather than on federal deployment.

It is a violation of the Equal Protection Clause for a state to recognize the out-of-state marriages of some of their residents while not recognizing those of others - particularly since the only reason is the sexual orientation of those involved.

The leaders of both Texas and Mississippi should be ashamed of themselves. Being seen as supportive of same-sex marriage may not be a vote-getter in either state, but guaranteeing equal protection under the law to the citizenry should trump base politics. Of course we all know that the State of Mississippi has a pretty abysmal record when it comes to equal rights. We also know that the establishment (white) churches played a large role in defending segregation in the 1960's. The circle of good ol' boys who have run Mississippi for generations is slowly, but surely, coming to an end and they are doing everything they can to cling to power for as long as possible.

The right wing in this country (and others) have long used religion as their justification for fighting the extension of equal rights to the populace. That great opiate of the masses has been very effective in keeping the oppressors in power.

These western fundamentalists are every bit as wrong as their Islamic fundamentalist cousins in, and around, the Middle East. I find it very amusing to listen to the wingnuts express their hatred for those who would advocate theocracy in other parts of the world while they do their best to build a theocracy at home.

DOMA is doomed

The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. - Loving v. Virginia, 388 US 1 (1967).

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. - US Constitution, Art. IV, Sec. 1

Last Tuesday, Maine and Maryland became the first states to approve same-sex marriage. The results ended a string of defeats at the polls over the years.

The passages of those two measures will mean the effective end of the Defense of Marriage Act. As I have written before, once one state recognizes same-sex marriage, every other state will be forced to do the same - whether they like it or not.

Back in the 1950's, the state of Virginia made it a crime for an interracial couple to marry. To add insult to injury, the laws of that time not only voided such marriages, but the parties involved could be sentenced to up to five years in prison.

In 1958, Mildred Jeter, a black woman, and Richard Loving, a white man, living in Virginia went to Washington, D.C. and got married. They then went back to Virginia and settled down. Less than a year later they were indicted, convicted and sentenced to one year each in prison. The court suspended the sentences for 25 years provided the Lovings left Virginia and never returned.

In 1967 the case, Loving v. Virginia, made it to the Supreme Court. The Lovings argued that the Virginia laws violated their rights to due process and equal protection. The state countered that the laws did not violate the Equal Protection Clause because both the white partner and the black partner were subject to the same sentence.

The Warren Court begged to differ. Said the Court:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

The Court reversed the convictions and declared the Virginia statutes unconstitutional.

Opponents of same-sex marriage will argue that marriage laws were left up to the states at the founding of the republic. That is true - which is why conservative support of the Defense of Marriage Act is so tastefully ironic. Here we have yet another example of how the right wants selectively limited government.

The fact that marriage is left to the states to regulate is why DOMA is now doomed. Let's think about it for a bit. The Full Faith and Credit Clause says that a state must recognize the legal proceedings and records of any other state. And that's what happens now. If you get married in California and then move to Texas you are just as married in the Lone Star State as you were on the Left Coast. You are entitled to the same rights and privileges as a couple that was married in Texas.

The Equal Protection Clause says you have to treat people equally. You can't treat one person one way because he or she is white or heterosexual and then treat another person differently because that person is black or homosexual. That notion applies to married couples as well.

It will take time but sooner, rather than later, every state in the Union will be required to recognize same-sex marriage - even they have to be dragged kicking and screaming. All it's going to take is one couple to file one suit challenging a law banning same-sex marriage for the chain reaction to occur. It would be much easier if governors and state legislatures would just recognize that the issue is now moot and pass laws conferring the same status for same-sex couples as heterosexual couples.

That, though, would require character and leadership.

Opposition to same-sex marriage may very well be moot

North Carolina just became the 12th state to outlaw same-sex marriage. At the same time the referendum last Tuesday night provided President Obama the impetus to come out of the closet in support of same-sex marriage.

With Mitt Romney having wrapped up the Republican nomination you could expect President Obama to move toward the center so as not to alienate the fence-sitters in November. But he didn't. He took a chance to set some distance between he and his competitor for the White House.

The only thing is that marriage is a matter for the states to handle. You know, that whole federalism thing. Besides, whether a presidential candidate is for it or against it, or whether a state spends a lot of money to hold a referendum to ban same-sex marriage, doesn't really matter in the end.

There are currently six states that recognize same-sex marriage. Connecticut, Iowa, Massachusetts, New Hampshire and Vermont all permit same-sex couples to get married.Why is that important, you might ask? Because of the Full Faith and Credit Clause and the Equal Protection Clause of the Fourteenth Amendment.

My wife and I were married here in the Lone Star State. We can move to any other state in the United States and we're still married because each state is obligated to recognize a marriage from another state. If you stop and think about it, it makes sense.

And for that very reason, whether North Carolina, or any other state, wants to ban same-sex marriage, may not matter one little whit. If North Carolina is obligated to recognize the marriage of a heterosexual couple from, say, Texas, to deny recognition of a same-sex marriage from Vermont would seem to be a violation of the Equal Protection Clause.

Of course the impetus behind same-sex marriage isn't to have a fancy wedding and wear wedding bands. The real reasons behind the push for same-sex marriage are inheritance rights and access to health benefits. As to inheritance rights, the goal can be accomplished just as easily by holding property as joint owners with survivorship provisions and by making out a will leaving one's share of commonly held property to one's partner.

Now, while the idea of same-sex marriage has great appeal to some - just remember, where there's marriage, there's divorce.

Harris County rolls out new coercive DWI program

The Harris County District Attorney's Office informed members of the defense bar of the DA's new coercive DWI pretrial diversion policy this afternoon. Mr. Roger Bridgwater, formerly a state district court judge, laid out the details of the new "take it or leave it" policy.

Mr. Bridgwater stated that the impetus of the new policy was the high number of "alcohol-related" fatalities in Harris County and the alleged recidivism rate of defendants who chose jail time and a fine over probation. The DA's office is troubled by the fact that only 22% of those accused of driving while intoxicated are opting for probation when entering a guilty plea. In 2000, 48% of those pleading guilty to a DWI charge opted for jail time and 45% chose probation. By 2008, 65% of defendants were opting for jail time upon pleading guilty. Of course Mr. Bridgwater's analysis did not include looking at the basis for the stop, whether there was a breath or blood test, whether the case was "marginal" or any other facts about the individual cases.

Mr. Bridgwater made the claim that of the 40% of first time DWI offenders in 2004 who were placed on probation, only 11% were charged with a subsequent criminal act while of the 59% who chose jail time and a fine, 16% were later charged with another crime. There are a couple of problems with Mr. Bridgwater's analysis -- first, he did not provide the sampling size (how many drivers were actually arrested for DWI) and second, he did not provide the criteria by which he determined another crime had been committed. Are we talking about folks actually being found guilty of a subsequent offense or are we talking about innocent folks who were simply accused to committing a crime? I would argue that his statistics on this point are wholly without meaning.

Of the 5,616 people who plead guilty or who were convicted of DWI in 2004, 14% were charged with a subsequent criminal offense. Not convicted, mind you, just charged. Mr. Bridgwater seems to have forgotten that those accused of a criminal act are innocent unless proven guilty beyond all reasonable doubt. It's amazing how quickly that's forgotten once someone enters the 6th floor of the Harris County Criminal (In)justice Center.

As to the concern over "alcohol-related fatalities" in Harris County, something called the Houston-Harris County Office of Drug Policy released a report claiming that 30% of traffic fatalities in Harris County are "alcohol-related." These are the same meaningless numbers NHTSA tosses around when discussing the epidemic of drunk driving. No one has defined what "alcohol-related" means. Are we talking about accidents in which the person at fault was found to have been driving while intoxicated? Are we talking about accidents in which the person at fault was accused of driving while intoxicated? Are we talking about accidents in which the person at fault had consumed alcohol but was not impaired? Are we talking about accidents in which any person involved was intoxicated or under the influence of alcohol?

In Harris County, if a police officer detects the odor of an alcoholic beverage on a driver's breath, or if the driver admits to having consumed alcohol, that motorist is going to be arrested and taken to the county jail -- even though it is not against the law to consume an alcoholic beverage and then drive. It is only against the law if you have lost the normal use of your mental or physical faculties as a result of consuming alcohol.

Harris County D.A. Pat Lykos announced the new program in June at a speech at Rice University. Until this afternoon, no details about the program had been released through official channels. Apparently the hold up was coming up with an appropriate acronym for the program (after all, this is the government we're talking about). The new program is the DIVERT program - standing for Direct Intervention using Voluntary Education Restitution and Treatment. There is little about the program that is voluntary.

For those offenders deemed eligible for the program, their choice is to enter the DIVERT program, accept a jail term of 30 days, take an offer of probation (and a conviction) or to go to the judge without a recommendation from the state. For those not deemed eligible for the program, the choice is even starker -- 30 days in jail, probation or pleading guilty without a recommendation. So much for voluntary.

To be eligible, the accused must:

1. Be an adult first-time offender;
2. Be a resident of the State of Texas;
3. Be a US citizen or premanent resident alien;
4. Have no prior juvenile record;
5. Have no prior arrests for any felony or Class A or Class B misdemeanor; and
6. Be employed or in school.

A person may be excluded from the program as a result of:

1. Judicial veto (that means Judge Bill Harmon of County Criminal Court at Law No. 2);
2. A co-occuring disorder that would be detrimental to the person's ability to complete a probation (whatever that means);
3. Any pending criminal charge in any jurisdiction;
4. A co-occurring mental health condition that the Harris County probation department doesn't offer treatment; or
5. It being contrary to the best interest of the community.

Mr. Bridgwater envisions a defendant having 75 to 90 days to decide whether or not to apply for the program. Mr. Bridgwater apparently doesn't know how long it takes to get blood test results back. He apparently isn't aware that the number of blood tests is likely to increase as a result of legislation going into effect on September 1, 2009 that further restricts the Constitutional rights of those accused of driving while intoxicated. He apparently isn't aware of the general incompetence of the HPD crime lab.

This new program was rolled out to Harris County criminal judges last week in what would amount to an ex parte communication between the state and the judiciary. No one in the criminal bar was consulted while this program was being conceived and fleshed out. The impression I got from the "meeting" this afternoon was not that the DA's office was concerned about person who makes one mistake and is not eligible for deferred adjudication, but that the DA's office was upset that most DWI defendants are aware that probation is generally a bad deal. The DIVERT program is an attempt to coerce more people into supervision under the guise of pretrial diversion.

Another post will follow with the specifics of the DIVERT program.