01/01/16 Rodney Ellis

Cultural Baggage Radio Show

Senator Rodney Ellis, unedited

Audio file


JUNE 3, 2015


DEAN BECKER: All right, it's rare, somewhat rare, for me to get a chance to talk to elected officials about what I consider to be many of the harms of the drug war, a part of our mass incarceration attitude, which seems to be diminishing as we speak. Nationally, and states across the country, local municipalities are beginning to re-examine this attitude, which has given us actually 2.2 million US citizens behind bars as we speak. And there's some concern that Harris County is amongst those leading that effort, ofttimes for minor charges, ofttimes for drugs. Here to speak about it is Texas Senator Rodney Ellis, who has some concerns in this regard as well. Welcome to the Cultural Baggage show, sir.

TEXAS STATE SENATOR RODNEY ELLIS: Dean, thank you for inviting me, it's an important subject, and to be honest with you, I think it's an issue whose time has arrived politically.


RODNEY ELLIS: For a host of reasons. In particular the fact that it costs so much money to incarcerate such large numbers of people.


RODNEY ELLIS: One of the highest areas of spending in Harris County, in the county's budget, is on the county jail.


RODNEY ELLIS: One of the big drivers in there, by the way, is the cost of health care. So you tie the fact that we incarcerate such large numbers of people, with the fact that the state wouldn't draw down the Obamacare money. In places like Cook County, in Chicago, in Illinois, they're using Obamacare money in part to help pay for health care, subsidized health care, for inmates, many of whom, by the way, are veterans. Maybe people who didn't take their pill, have PTSD, something that may have happened to them while they were serving this country. And then they cuss out the wrong person at the wrong time, and end up in jail, and you've got to pay for them. You have people on the far right and people on the far left who are looking at these high incarceration rates and realizing it has not made us safer, and you don't have the space to lock up the people who ought to be locked up, who are clearly a danger to society.

And look, I want to make this last point. There are many people who are in jail today for doing the same thing that maybe you and I, maybe some of your listeners, did, but they, or we, just got away with it.


RODNEY ELLIS: And now, because penalties have been enhanced, and there are a lot of mistakes, or young people experimenting with things that some people in our generation experimented with when we were younger. Some of them still experiment with it, might be a habit.

DEAN BECKER: Well ....

RODNEY ELLIS: Small amounts of marijuana. Not me. And I'm not talking about you. But, you know, it's just ridiculous. And you could use all types of things to protect society. First of all, give people resources to get rehabbed.


RODNEY ELLIS: If they have an addiction, at some point they're going to come out. Why make life worse for them. Or this bail system, which is just so ridiculous. I always use the example, to put a face on it, of Mr. Durst.

DEAN BECKER: Yeah. Yeah.

RODNEY ELLIS: He was arrested for allegedly at the time cutting someone, chopping somebody's head off and throwing it in the Gulf of Mexico.


RODNEY ELLIS: He posted a bond for $2.5 million, that was like a quarter to him.


RODNEY ELLIS: He put up the $250,000, got out, and he skyed up. Sandra Bland, in the neighboring county. It could have been in Harris County, but it was the neighboring county, in Waller County. She was arrested for allegedly a minor violation. It looks like the officer was just having a bad attitude day.


RODNEY ELLIS: And she was put in jail, she didn't have $500. I daresay, if one of my kids, who are in New York, got picked up on a Friday, they wouldn't have the money for cash, I've never posted bond for anybody, I don't even know. Maybe you know, can you give them a credit card? Can your parents just wire the money in?

DEAN BECKER: I think you've got to make arrangements, for sure.

RODNEY ELLIS: You've got to have cash. Oftentimes, young people don't have it. Particularly in this credit card society which we operate. You picked up on a Friday evening, when the folks who work in the criminal justice system are packing up to head off for Memorial Day weekend, you get picked up last Friday, you may not get out until Tuesday or Wednesday. And then if you have this large facility where people are housed, anything could happen to you. We need to make sure our prisons are for holding the people that are a threat to society.

DEAN BECKER: Dangerous.

RODNEY ELLIS: It is a clearly constitutional violation of the Equal Protection clause, if we have prisons where you are locking people up based on how much they have in resources. If you have money, the system for you is you post bond and get out.


RODNEY ELLIS: If you don't have money, the system for you is, you don't post bond, you stay in, and anything can happen to you. There's also state statute that says judges should not refuse to grant someone bail simply because they don't have money to pay for it, oughtn't be based on income.


RODNEY ELLIS: It ought to be based on whether or not you're a flight risk or threat to society.

DEAN BECKER: So true, sir. I want to kind of reach back to, well, some news that's been occurring here in Harris County over the last week or two, and that is, County Commissioner Steve Radack heard your thoughts about Houston being amongst the leaders in mass incarceration, and he told you to shut up or state your facts right. And I want to present something here. The United States incarceration rate is by far leading the world. We have 716 prisoners per 100,000. Next up is the United Kingdom, at 147. So, to say that the US leads the way, is obvious.

RODNEY ELLIS: It is obvious.

DEAN BECKER: And then I'm looking at another thing here, provided by the Prison Policy Initiative. Now this is from the 2010 census, but it talks about whites being arrested at 768 per 100,000, this is in Texas. Hispanics being arrested at 972, and black, the black population being arrested at 2,855. This is --

RODNEY ELLIS: There's a clear racial disparity.


RODNEY ELLIS: There's a clear income disparity.


RODNEY ELLIS: We know who's more apt to be locked up in the Harris County jail. You know, first of all, on the English part of it, in case somebody is listening who's with, what do you call it, PolitiFact. Grammatically, I was correct. I said Harris County has quote some of the highest incarceration rates.

DEAN BECKER: Indeed we do.

RODNEY ELLIS: And that the "some" referred to counties, the top 10 counties, top 20 counties, all the counties in America, all of the cities, school districts in America. It depends on where you cut it.


RODNEY ELLIS: I've seen the same comment, heard the same comment made hundreds of times. Probably been made by some of my colleagues who happen to be active in the Grand Old Party.


RODNEY ELLIS: So, you say some of where you'd, what is -- but here's what Commissioner Radack wants. He wants me to shut up.

DEAN BECKER: That's what he said.

RODNEY ELLIS: Well, you know, I -- he wants things to go back to, in his mind, the good old days, the way things used to be. For far too long in my judgement, people have run that county like it's a plantation. And I'm not making a racial casting, a racial aspersion, but you know, running the thing like it's a private country club. And I think with the loss of seniority when Commissioner El Franco Lee passed away, he clearly was the senior member of that body. I think what you've got is a little power grab. And you probably have Commissioner Radack now who is the senior member wanting to exert his influence. And you know, look, I know him, he's a friend of mine, his wife's a friend of mine. He can be a bit of a bully. Well I want you to know, that BS is going to stop.


RODNEY ELLIS: January the Second. I hope, I've done my best to make sure it happens, but I don't want to make this a political commentary. Look, I've been active on this criminal justice front for a very long time.


RODNEY ELLIS: I passed the Fair Defense Act 15 years ago, which gave every county in Texas the ability to have a public defender's office. You know, just think about that as an issue. So much of this goes to the quality of somebody's legal representation.


RODNEY ELLIS: And you ought not have a system where your income determines whether or not you're innocent. But that's what it really amounts to. In other places in the country, they think we're nuts to have a system where the judge picks the lawyer for someone who cannot afford one. The constitution requires that if you cannot afford a lawyer, the court has to provide one for you. That doesn't mean the judge ought to pick one of their friends.


RODNEY ELLIS: Or somebody who's a donor. Or somebody who has an inherent conflict of interest because they're trying to please the judge and get another case.


RODNEY ELLIS: Whoever picks your lawyer ought to not be the person who's hearing your case. When that happens, that means that that judge is essentially the coach for one side and the umpire for the whole game. That doesn't make sense.


RODNEY ELLIS: And that doesn't happen in other parts of the country. Austin is going to something called managed assigned counsel, by the way. Managed assigned counsel is the result of a bill I had the privilege of being the lead sponsor on. It says that the bar association, the defense bar, criminal defense bar, the overall Travis County Bar, maybe the public defender, anybody, can pick the lawyer for someone who cannot afford one, other than the judge hearing the case. That's just common sense.

DEAN BECKER: That makes sense.

RODNEY ELLIS: If you or I were in trouble, would we let, or your listeners, would they let the judge pick the lawyer for their child? Of course not. And none of those judges would let some other judge who's hearing that child's case pick the lawyer for that child.


RODNEY ELLIS: And folk who can't afford a lawyer ought not be subjected to that. That's why the jails are full of people who cannot afford it. A lot of people are in jail because their lawyers ought to be in jail instead of them. So we need to, the public defender's office was a big step in the right direction, I applaud the commissioner of court for doing it, for taking me up on the bill that I passed that said they could do it.


RODNEY ELLIS: For taking about five, six million dollars from the state to do it.


RODNEY ELLIS: As a result of that Fair Defense Act I had the privilege of sponsoring. But it only handles, the public defender's office handles maybe about five, six percent of the cases. Vast majority, over 90 percent, are still on that old school system of a court appointed lawyer. And I'm saying that ought to change. And that's something I'm going to be advocating for. The public defender's office is where the idea came from of having a lawyer appointed, or given to someone, at the magistration hearing, when you initially are arrested and come before the court. So you have an expert to advocate for you. That in and of itself, if that happens, will help reduce the number of people who are stuck, trapped in this system, of this pay to play bail scheme that goes on.

DEAN BECKER: Yes sir. All right, folks, once again we're speaking with Texas Senator Rodney Ellis. We're talking mass incarceration, we're talking the need for change, I think, is t the heart of this. Now, Senator Ellis, I want to, you know, I get to talk to the DA, and the police chief, the mayor, but these folks don't write the laws, and you're on that side that does. You've been there for a while, and --

RODNEY ELLIS: 26 years.

DEAN BECKER: 26 years, thank you, sir. And I want to address what nags at me. We had this law passed, I think it came through as House Bill 2391, no longer necessary to arrest anybody for under four ounces of weed, for crimes of shoplifting and other things under $500 damage, etc. Yet most of the district attorneys around Texas just ignore that law as if it never was written or approved, signed by the governor. And, we had another law that was passed this last session, that allowed for CBD-only marijuana extract to be produced here in Texas and then, with a doctor's prescription, that in 2017 somebody might be able to access it, but I think what was overlooked, or ignored, was that no doctor's going to write a prescription for marijuana, they would lose their DEA license to do so.

So, what I'm asking, or concerned with, sir, is, how do we kick this ball further down the field instead of throwing it side to side, because there's progress afoot, states all around this country are making millions, tens of millions of dollars off the marijuana issue. And I think you're as aware as most that marijuana is not the threat that it was ever purported to be. And your response to all of that, please.

RODNEY ELLIS: I think there's been a lot of talk in Texas about reform, and we have done some significant things, but not nearly enough. There's still so much darkness and so much more that can be done. That statute that you mentioned, initially, it was not a perfect statute, and the prosecutors didn't ask for it. The chairman of the House Criminal Justice Committee, who took the lead on the bill, he had one of our colleagues in the Senate, I think Senator Seliger, was the house sponsor on the bill, with no co-sponsors. They quietly took it through. The prosecutors weren't up to asking, can you get that bill passed? You know, oftentimes, a lot of my friends in the defense bar spend their time trying to be Perry Mason or Thurgood Marshall, Sotomayor, Justice Sotomayor, in the courtroom, and the prosecutors go to the legislature, walk the halls of power there, and stack the deck in their favor. Criminal defense lawyers, you need to get a lot more active in the legislative process.

But look, Pat Lykos ended it real quick. As prosecutor, she said, I'm not prosecuting anymore trace cases. And that reduced that jail population considerably. I saw the article in the Houston Press, you may have seen it, making reference to that bill that Seliger had in the Senate. I can't remember the House sponsor. I hope y'all remember my name when I'm out. But, he was chair of the committee, and criticized for carrying a number of reform bills. They ran against him, running ads, saying that he was carrying that bill for that liberal Senator Rodney Ellis out of Harris County. You know what that was a buzzword for, you got me?

But look, this litigation means a lot.


RODNEY ELLIS: This litigation, because I think it will be the largest county in the country where the advocates, the civil rights advocates, have challenged this bail system, in Harris County. I'm hopeful that they will win it. I think they've got a good case. I'm real proud of Susman and Godfrey. You know, you try and take on one of these cases, you've got to have resources.


RODNEY ELLIS: And when you're coming up against the power of county government and state government, they have unlimited tax dollars. Your money.


RODNEY ELLIS: That will fight for a system that is simply unsustainable. But that lawsuit's very important, people ought to watch it, read the pleadings, it's about 50 pages. Read it two or three times if you start going off to sleep, it's written like a reporter writes it, like somebody in your industry writes it.


RODNEY ELLIS: You know, well written. The young woman who's lead plaintiff in it, in my day -- in my judgement is a modern day Rosa Parks. And I think if that legislation, if that bill makes it, her name is Maranda Lynn ODonnell. Can you imagine taking on the power establishment in Harris County? What are we, the third or fourth largest county in the country?


RODNEY ELLIS: You know, you've got more people in Harris County than you have in about fifteen or so states.


RODNEY ELLIS: You know, I can't remember the exact number. But I think that's what you get at. Litigation, I think will help lead to, if there's a need for legislation, real legislation that doesn't get cut up in that spaghetti, sausage-making process so much that it doesn't make sense. I saw that article in the Houston Press, where I think a prosecutor was saying, well, there's some problem with the computer system, so they couldn't implement that law. Well, it would cost more money to go fix whatever there is in the computer system, I have not sat down with her to find out what the hold-up is. I hope -- hopefully I'll have a new job and be able to have that discussion in public.

But look, there ought to be some transparency here. Bring the public in on this, we can't afford this. You know, I was shocked when that item passed on the ballot to create the new processing center. Wasn't that interesting? The Astrodome measure failed.


RODNEY ELLIS: But the processing center, another term for a new jail. I was not against it, didn't take a position one way or the other. But it passed. But the public's not going to spend all this money to keep warehousing people --


RODNEY ELLIS: -- that are not a danger to us, and somebody like the person who did the shootout the other day, over in the memorial area, is out walking the streets. You know, I think some of it, you know, to defend law enforcement, is sometimes you just figure, well just lock up as many people as you can who do anything, and they'll kind of figure well, they're one step away from doing something that's really a heinous crime, so you just lock them up. That's the old school thinking.

DEAN BECKER: Yeah it is.

RODNEY ELLIS: And we could do much better than that. We owe that. You look at those stats that you gave, for other jurisdictions around the world. You know, imagine, our incarceration rates are higher than Portugal, Luxembourg, Canada, Belgium, Italy, France, the Netherlands, Denmark, Norway. I mean, that's just ridiculous.

DEAN BECKER: Yes sir, it is.

RODNEY ELLIS: Something's wrong with that. So I look forward to having a serious policy discussion with Commissioner Radack and anybody else genuinely concerned, on the left or the right, about what we can do to make our county better, our state better, and our country better. I think we're better than this.

DEAN BECKER: Continuing in, one of the recent Chronicle articles was a reference, was it him that called for a debate on this or was that you, sir?

RODNEY ELLIS: That was me.

DEAN BECKER: That was you.

RODNEY ELLIS: I called for a debate, in fact I called up one of my colleagues, State Senator Paul Bettencourt, and I said, hey, you can get on your talk show radio, and say that I'll have the debate over here, wanting him to feel comfortable. You know what, I think that a lot of people on the far right, and people on the left, for totally different reasons, they're flipping around and coming to the same conclusion.


RODNEY ELLIS: What we are doing in Texas, and in many cases, what we are doing in America, is not sustainable. And, we need to stop this. You know, look, if somebody breaks in your home or my home, we, let's just be real, we won't be calling the ACLU or the NAACP or LULAC, or Senator Ellis. We will be calling the police, or as some would say the PO-lice. And they have an important job to do.


RODNEY ELLIS: And let's be responsible about how we do this, and let's join other democracies around the world in being smart on crime. And I think the stars are aligning. The moment is ripe, we've got to seize it. It's important for the press to cover it. You know, oftentimes in the press, it's so much easier to cover some mickey mouse red meat story, which bathroom somebody is going in. You know, and let's stop covering stuff that ought to be in the bathroom, and cover public policy issues that really matter, that really impact peoples' lives. What can we do to eliminate this vast inequality that we have in this country? What can we do about climate change? What can we do to clean up our neighborhoods, to make people have more affordable housing, improve our schools?


RODNEY ELLIS: To make life better for our people. You know, we're the leaders of the free world. It's time for us to act like it.

DEAN BECKER: Yes sir. I know our time's limited. I want to bring up one more thought. The incarceration rate in the United States, we talked about it, it's 716 in general. But the incarceration rate for black males in South Africa was 851. This was under apartheid, sir. And back in -- this is in 2001, things have gotten better, but in 2001, the rate per 100,000 African American males in the United States was 4,848, some five times, six times what it was in South Africa under apartheid. Yes sir.

RODNEY ELLIS: Essentially under slavery. You know, hey, the real tragedy is, I think what our county, here in Harris County, this is ground zero for reform, by the way. You know, any time the least significant thing happens, everybody lines up and have a press conference, look, I was proud of them for applying for the MacArthur Grant. Tell you a little secret. You know, I don't go around bragging about it, you know I have a bit of a reputation in this space. I chair the board of the Innocence Project, I chaired it for twelve years, I believe, 11, 12 years, ever since Barry Scheck and Peter Neufeld, the co-founders of it, set that program up. It was a part of Cardozo Law School. About 11 years ago, 12 years ago, they decided to spin it off, set up a separate 501(c)3. It was about the time I was getting some national attention in the criminal justice space. They asked me to go on the board. I go to the first meeting, and they elected me chair. I've chaired that board since 2003.


RODNEY ELLIS: What is that, 2003 to 2016?

DEAN BECKER: Thirteen.

RODNEY ELLIS: Thirteen years I've chaired the board, and I'll chair it for another couple of years. I'm known in that space around the country.

DEAN BECKER: Thank goodness.

RODNEY ELLIS: And, it was someone on my staff who came to me. I was headed to New York for a board meeting, and they said, hey, the MacArthur Foundation has this new program where they're going to do a challenge grant competition for counties around the country. Do you think this is something Harris County should be interested in? I really thought MacArthur was in New York, and I said sure. Set it up while I'm in New York for my Innocence Project board meeting so I can visit with someone at the MacArthur Foundation. Staff came back a couple of days later and said, well it's not in New York. They're based in Chicago. And so I called them, in Chicago, and said, hey, you interested in Harris County? If I call over and encourage them to apply, do you think there's a shot? They said, are you joking? We'd love to make an impact in Harris County. Everybody knows of Harris County, the death penalty capitol of the country, of the world.

DEAN BECKER: Of the world.

RODNEY ELLIS: Let them check the stats, because Commissioner Radack may be listening. Just make sure, and somewhere else in Libya or someplace, or Iran, that has surpassed Harris County.

DEAN BECKER: Maybe ISIS has a better --

RODNEY ELLIS: But it's way up there.

DEAN BECKER: Maybe ISIS has us at this point, I don't know.

RODNEY ELLIS: But, so, look, so I called Commissioner El Franco Lee, the late commissioner, and he said, well get me something in writing, I'll take it to the criminal justice council, and he did.


RODNEY ELLIS: That's why they applied.

DEAN BECKER: That's how it got --

RODNEY ELLIS: And my staff worked with them, you know, I called the folks, and the MacArthur came through Houston, they met with me, they know of me by reputation, I can't say they knew me personally, but they knew me by reputation from my work with the Innocence Project all around this country.


RODNEY ELLIS: My point is, some credibility in this space.


RODNEY ELLIS: When they go, when they got the grant, they could have gotten a larger amount, by the way, if they were ready to do more. But there's a tendency to want to just go do something, the very least, and then blow it up, like you really did something.


RODNEY ELLIS: I mean, give me a break. You think you can solve this problem just because you go get a criminal justice coordinator? Come on now.


RODNEY ELLIS: Years ago, they had a JMI report. Credible firm. Justice Management Institute. They spent a hundred thousand dollars. And the JMI came back and documented. You need independent verification. Pretty much said you need to have a public defenders office. You need to have a lawyer at magistration. You need to clean up your crime lab. You need to do A, B, C. All the things that they know they ought to do, and instead of doing that, they wait, wait for another round, have a press, do the least that -- they just do the very least, to say you're doing something. Let's get serious about it. And I don't think that everybody ought to take the attitude, you're over-reacting. Everybody's so worried about a Willie Horton ad being run against them. You know, who'd have thought old Willie could have set this country back as far as it has?


RODNEY ELLIS: And, or, you know, any little thing, coming to unfortunate tragedy when Deputy Goforth was assassinated. And then it was an opportunity for everybody to beat their chests and criticize #BlackLivesMatter, and, you know, go off the deep end. And then who would have thought, I mean, I was thinking, god, why would this happen? When we were on the precipice of I think at least having dialogue about meaningful reform, then something like this happens and it goes in another direction. And then you know what happened, when all of the stuff came out, on the unfortunate Goforth. Just tragedy.

DEAN BECKER: Pointing the other direction.

RODNEY ELLIS: That crime lab that the City of Houston is not cleaned up because people woke up one day and decided we're going to clean up the crime lab. You covered these stories. Go back to the young man who was a star football player out of Madison High School, Josiah Sutton. He came well after the, another famous running back from Madison High School, who went on to UT fame, and international fame, but Josiah Sutton, a young man, I want to say 16, 17 years old, convicted of rape in the 10th, 11th grade. Had a great career ahead of him, playing maybe college, and then professional football. Sloppy crime lab. Wrong guy. And then, when he was cleared up through DNA testing, Innocence -- one of the Innocence Projects took on his case, then we had to argue to get him the compensation from the state. By four years in prison, you know that changed that young man's life.

DEAN BECKER: Oh god yes.

RODNEY ELLIS: Another guy, whose name I can't think of now, a case that Innocence Project out of New York handled. I remember being on the runway in New York, and Barry Scheck was, they were releasing him from the Harris County courthouse, Barry was there, and I suggested, take him over to city hall when he gets out. Have him some clothes, take him straight to city hall. And put him up on the agenda and have him ask, council members and mayor, will you make sure that this crime lab is cleaned up so this never happens to anybody else? I've told council members started crying. That's what led to the Bromwich report, which to my judgement was the most expensive independent review of a crime lab in the history of America. And that's what led to -- these things don't just happen because people wake up one day and say, oh, I'd like to do the right thing. Taking on the awesome power of the government in the criminal justice space is very difficult.

DEAN BECKER: Oh, cumbersome.

RODNEY ELLIS: But anyway, I don't want to ramble on too long.

DEAN BECKER: Well, I, let me just go ahead and wrap this up then if you want. Once again, we've been speaking with Texas Senator Rodney Ellis, a man with great understanding of this problem and some thoughts for a new direction. Senator, what are your closing thoughts, what would you like to relate to the audience? They need to get involved, don't they?

RODNEY ELLIS: Dean, I first of all want to thank you. The media plays a very important role in this. Over the years, on the criminal justice issues that I've been able to get passed, it really has been because of the media coverage. You know, even back when I had the hate crimes bill, after the Broussard case out here, and I refused to take sexual orientation out of it, it's why it took a decade to pass that bill. But it's been the media. You know, I found that it's an uphill battle, but if you're willing to speak truth to power, and you try and put light in dark places, at the end of the day, truth will generally prevail. Doesn't happen right away, but you folks on the activist, need to get active. And they need to let the legislators legislate. And they need to let the policy makers start making policy. And they need to encourage law enforcement, people from the DA's office, all sit down and talk and talk about what makes sense. We can make our society safe, we can make it fair. At the end of the day, if people don't have confidence in their criminal justice system, it will not sustain itself.

You know, what helps us, what has made this democracy work, has been transparency, has been a system of laws. Rules in place. At least the perception that it is fair, or can be fair, or we strive to make it fair. And we need to try and live up to those ideals. Thank you.

DEAN BECKER: Thank you, sir.

RODNEY ELLIS: It's been an honor to be with you.