Liveblog: The Justice Track at The Texas Tribune Festival

Keller introducing panelists. Abel Herrero could not attend. 

Keller says he wants to start on a more pessimistic note. U.S. leads the world in incarceration. After three years of incarceration going down, now going up. Texas is up 1.5 percent. Has prison reform hit a wall? Yanez-Correa says it depends on how DOJ is counting. She says prisoners not being counted are in alternative sentencing like drug treatment programs. She says TDCJ is still going down. 

Keller asks what is the motive behind incarceration? Reddy says, fundamentally it's public safety. But if we don't have a plan and inmates put their lives back together once they are released then we are essentially creating unsafe communities. 

If the panelists could do anything what reforms would they do? Y-C says the state needs to move away on the overcriminalization of children by raising the age of legal adulthood from 17 to 18. 

Rep. White says the criminalization of truancy has to be reformed. 

Keller identifies nationally some of the roadblocks to reform: private prison industry, propsecutors, prison guard unions. 

Keller asks Morton about doing 25 years in prison for a crime he didn't commit. Do you see you crime as a fluke, or a systemic problems. Morton says "statistically it was a fluke. It was a bit of a fluke but it points to some problems," he says "But from what I saw that every program is gamed by the convict. The only thing that works is try to change the inside the person. some of the religious programs that are allowed in, for example, he said. "Until you change the man you're not going to have any affect on the person." 

Reddy points out that both politicial parties are now in agreement, in one of the few instances, when it comes to criminal justice reform. "You have had two sides who have not had to compromise but meeting in the same place." 

Reddy says his group is not in favor of legalizing drugs. But he'd like to see a change of battle tactics. Drug treatment is a fraction of the cost of the incarceration. 

Morton makes the argument state needs to look harder at using faith based groups, comprised mostly of volunteers in any type of criminal justice reform.  Because their overhead is so much lower.

Y-C, we have to redfine what is meant by public safety outcomes. Healthy violent communities without violence is the goal. She says Texas has come a long way from being tough on crime to being smart on crime. 

Reddy says it is true that there is a troubling racial component to incarceration, but there's a troubling racial component to education, etc. That's why, he says that more wholistic reforms, things like drug treatment treat the person and doesn't react to a racial component.

Morton says he saw better results when reforms were colorblind. 

Keller asks about why does Texas lead in capital punishment. Rep White struggles for an answer.  Calls it a tool. 

Y-C says the state is killing a person as a deterrent when we know it is not a deterrent. 

Member of the audience shouts out that Texas is the soft on crime, particularly if the person committing it is a prosecutor, law enforcement or a judge. Keller directs people with questions to microphones.

Reddy - in response to a question about the importance of private prisons - says only 7 percent incarcerated in those. They are only interested in expanding prison system, he says. We have to get good people in legislature for stronger oversight. 

Reddy says when you start grading these facilities based on performance outcomes, that's a step in the right direction.

Question about the harmful use of solitary confinement. Rep. White says in the next few months we're going to see some new ideas from TDCJ. "It's an issue we're really concerned with," he says. 

Morton on solitary confinement: "They're there for a reason. Ad seg (solitary confinement) is a wonderful tool in a strange way. Ad seg keeps the general population safer. It's not a bad thing all the time. "

Keller thanks panelists. 

Nevitt, editor of Texas Lawyer introduces the panelists, all Texas Supreme Court justices.  

What kind of cases interest you? Green, says we take the cases as they come to us. Hecht, 25 years ago we had more common law cases. Now we have a lot of statutory cases. The legislature has been more active. Criminal rights termination case, now getting one a week. Willet, Our court was more common law. Lawmakers are found of lawmaking and ever two years they pass a raft of news laws and they shrink that universe of common law. 

Guzman, there really is a process. public never gets a sense of the deliberation that goes into a deny. 

Lehrman, important to see how many petitions come before us. a whole lot of time making the deicsiion which cases we're goign to grant and which ones we deny. 

court has big splits on business cases. Willet, there is a notion that if we're all Republicans, we all agree, we all march along in lockstep. The numbers, the data show that is wrong. 

Willet says around the conference table, things get feisty. Brown says we don't think of them as big business cases. Guzman says when someone writes a really good dissent, it makes the majority stronger.  

Lehrmann, what people don't understand opinions that come out as majority, started as dissents. 

Lehrmann says the justices work very hard to keep from having a pluralities because it doesn't help the bar. Sometimes it is unavoidable. 

Nevitt asks about the court's other tasks. 

Hecht says a lot of our work is administrative. We divide that up. Justice Johnson is the liaison for the State Bar of Texas, for example. Texas has 6 million who qualify for Legal Aid. And it's our privilege to see there is support for those various groups that provide it. Guzman is liaison for commission on children. Focuses on foster care. 

Guzman says 84 recommendations from that children's commission are going to be implemented to help reform foster care. 

Hecht says these things don't have anything to do with cases, but these different duties do have everything to do with how the court system in Texas operates. 

Boyd talking about the committee he works on working on pushing for more district clerk's office to convert from paper records to electronic court records. 

Nevitt asks about how most of the big business cases seems to involve basic reading of the contract. Should it be enforced as written or is there something outside it that can be enforced? 

Brown, sticking closely to text best way to see their intent is implemeted. But ambiguities can arise and that's when judges have to be judges. 

Willet says the paramount virtue of the judiciary is reducing the amount of what is not predictable. It falls to us to reduce that universe of uncertainty. 

Boyd, Even when it's clear what the contract means, there is law that says you can't do it. That it's not enforceable. 

Question, is there a better way than electing judges? Lehrmann says she thinks there's real validity to appointing judges. the public may not realize that we are very aware in the way we select our judges and none of us believe we should rule according to a party affiliation. 

Willett, it's a very monastic, nerdy life that we lead so there is something about the campaign life that is appealling. I've not cracked the code on the best way to do it. Says he finds the constant fundraising for campaigns, unseamly. 

Another question, in 2017 the bar is facing sunset. How does the court view its role if the bar were sunsetted. Hecht says it's pretty unthinkable. It will be hard to know what would happen

Hecht says the bar is in a privileged because it is self-regulatory. We want to make sure the process is operating well. Public has the confidence in it.

Another question...we know the supreme court isn't an investigatory body. Then come the amicus briefs. Do you read the amicus briefs? What is the role of it? Boyd: I think they play a huge role. I read all of them. 

Boyd, one of the major factors the court looks at: does this matter to the jurisprudence of the state? Hecht says one problem of the system the decision is going to affect everybody, not just the parties. Amicus briefs that say I'm really big/important and you should listen to me are not very helpful. 

Question asks the justices about best thing about the job. Brown says his clerkship with the court was the best experience. Then coming back it has been a lot of fun for me. Willett, says it's a magic combo of loving what you do and doing something that matters. 

Lehrmann loves the caliber of the colleagues she works with. To work with people who are not only extremely brilliant but also have a great work ethic brings her a great deal of pride. Hecht: And we all enjoy reading The Texas Lawyer. Laughter. Panel concludes. 

Ramshaw asks whether the national tide is turning on same-sex marriage. 

McKinnon said he's never seen such a dramatic public shift in an issue as marriage equality. Speaking about the Republican Party, he said it's inconsistent for a party that believes in more liberty and stronger families to oppose same sex-marriage. Public sentiment is shifting and shifting fast, he said. 

Saenz said that until recently, it's been accepted that marriage is a union between a man and a woman. If you allow same-sex marriage, why wouldn't three people be allowed to get married, Saenz asked. 

But Lane said that waving the bloody shirt of polygamy to scare people "is a fear tactic, and it's hogwash." 

“Texas is a Jim Crow state” for gays and lesbians, Lane said, making them less equal than others in the state. Gays and lesbians merely want to have the same rights as others, he said.

Ramshaw asks González whether it's been difficult having her own sexual orientation out in the open.

González responds that it's been very difficult, but that she wanted to be open with her community and with voters. She didn't want the issue to end up as a scandal in the newspaper, she said. She wanted voters to know they had a representative who would be honest, she said. 

Ramshaw says that Saenz’s opponents have suggested that his opposition to same-sex marriage may be related to his personal life. She was referencing a Lone Star Q report that said Saenz’s wife left him for a woman.

Saenz responded that he has a long history of being involved in the marriage issue, dating back to his days as a UT student. He said that out of respect for his former wife, the mother of his children, any questions about her decisions are better left to her. But he also said that any time a marriage ends and children are involved, it leads people to think about these issues. These concepts impact people’s lives, he said.  

Ramshaw asks whether same-sex marriage is an issue that mobilizes people to the polls around the country.

No, it’s not a driving issue, McKinnon said. The thing that attracted a lot of people to support Bush was compassionate conservatism, he said. The Republican Party has been focusing more on caustic conservatism, he said. 

Earlier, Ramshaw asked McKinnon whether his views on same-sex marriage are new.

He responded that he’s always held these beliefs and that the reason he’s speaking out about this issue now is that he wants Republicans to be relevant again. 

It's audience question time.

Question from a social worker: Texas GOP promotes reparative therapy. Why would the party promote this idea? It has been condemned and is harmful, the question-asker said.

McKinnon said he thinks that’s a problem. Party platforms allow minority voices within the party get an outsized voice, he said.

But Krause said the reason the plank was in that platform was because it was offered by a member of the platform committee who had been through reparative therapy and found it beneficial. The plank wasn’t saying that the party encourages everyone to go to such therapy, Krause said. Rather, it was saying that people should have the liberty to use such therapy. 

Langford asks a question about how the state has kept secret information about execution drugs. Her question is for Ellis: Why have lawmakers not been making noise about this?

Ellis responds that lawmakers aren’t in session now. He said that there ought to be transparency but that he hasn’t thought through how to address it. If any of his colleagues attempt to pass a bill making information secret, he’ll fight that, he said, which could mean there would be an interesting alliance between Ellis, a Democrat, and some Tea Party lawmakers. 

Langford asks Willett to describe what happens in an execution.

Willett says that the prisoner gets on the gurney, and then a medial team puts IVs in each of the prisoner’s arms. The witnesses are brought into the witness room and the inmate is allowed to make a final statement. When the inmate is done with the statement, he lets the warden know, and then the executioners do what executioners do, Willett says. Shortly thereafter, the person passes away, he said.

Langford points out that sometimes people are on death row for many years. She asks if there is anything that can be done to streamline the process.

A good person to answer that question would be Anthony Graves, said Kase. Graves was incarcerated for nearly two decades — and was nearly executed — for murders he did not commit.

Powell said nowhere is it written that if someone is on death row you have to kill them in 10 years. You have to make sure that the right thing is done, he said.

Ellis agreed and said the rush should be “to make sure we get it right.”

Langford asks about people on death row who were convicted on pre-2000 arson expert evidence. This is a reference to Cameron Todd Willingham, who was executed after being convicted of setting a house fire that killed his three daughters.

Ellis said the system should have some mechanism to review those cases. In the Willingham case, the system did everything it could to try to protect itself, he said. 

It’s time for audience questions. A member of the audience asks what benefit we get from executions.

Powell responds that there’s evil in the world and that that will continue if left unchecked. He says that many people convicted of capital murder and sent to prison end up in the general prison population. Powell said he doesn’t have a crystal ball but that he tries to make a determination as to whether a person is going to hurt someone. He doesn’t want to have to look another mother in the eye and say that he could have stopped someone from being hurt but didn’t.