We don't talk anymore (police-public contacts down), DPS-TDCJ fingerprint spat, study finds Dallas cops with military backgrounds shoot more, and other stories

Here are a few odds and ends of which Grits readers should be aware:

On the pitfalls of recruiting ex-military personnel as urban police
An academic study of shootings at Dallas PD found that police officers who'd served in the military are up to three times more likely to fire their weapons than those who have not. Yikes!

You can't use our fingerprints, get your own!
The Texas Department of Public Safety and Department of Criminal Justice are in a spat. DPS won't give the prison agency permission to include fingerprints for "pen packets" prosecutors prepare when a defendant is sent to prison.

'The Love Story that Upended the Texas Prison System'
Awesome long form historical perspective on Texas' prison litigation in the 1970-80s from Ethan Watters at Texas Monthly, told through the lens of a romance.

Studying state jail felonies
The Texas Criminal Justice Coalition just issued a new report on state-jail felonies that goes on Grits' to-read list.

2/3 say don't arrest indigent Texans for nonpayment of fines/fees
A recent survey by the Texas Office of Court Administration found that 66% of Texans disapprove of jailing defendants over fines and fees when they cannot pay.  Both TX political parties called for ending such arrests in their 2018 platforms

Sweep 'em!
The Houston Chronicle editorial board called for a sweep of all but one Republican misdemeanor-court judges in Harris County after they fought bail reform tooth and nail in the federal courts instead of just fixing the problem. "These excuses are not enough to justify the perpetuation of a criminal justice system that [federal Judge Lee] Rosenthal says has resulted in 'thousands of constitutional violations' of both equal protection and due process." I thought this was a particularly clear-eyed view of the stakes of taking a throw-the-bums-out approach:

We do not make this recommendation lightly. There will be unfortunate consequences that weaken our misdemeanor courts in the short term. Harris County will lose experienced judges. Diversion courts will need new leadership if they are to continue. It’s possible that over the next four years we’ll face different sorts of challenges and scandals in pursuit of a new kind of judiciary. Our star ratings may seem off as we endorse challengers against incumbents with higher scores. But this is about something bigger than individual judges. This is about a criminal justice system in dire need of reform.

DNA QA @ HFSC
A commenter recently pointed out this report from July by the Texas Forensic Science Commission about non-standard-conforming work at the DNA lab at the Houston Forensic Science Center, and their the failure to solve problems with their processes after they became known. See also this site which publishes HFSC quality assurance documents. Recording these links here so I can look at them more closely, later.

We don't talk anymore: Police-public contacts down
According to the Bureau of Justice Statistics, "The portion of U.S. residents age 16 or older who had experienced contact with the police in the preceding 12 months declined from 26 percent in 2011 to 21 percent in 2015."

How federal justice reform happens in 2018
If the FIRST-Step Act and federal sentencing reform move anytime soon, it may be in the lame duck period after the election.

Now hear this!
Several podcasts I want to listen to soon may also interest Grits readers:

• Coercive Plea Bargaining: From the Cato Institute
• Rethinking Prisons, Police, and Overcriminalization: From The Federalist
• Prosecutorial Immunity: From the Federalist Society
• Staining the System: On blood spatter analysis

Off topic fun
Somehow, when the fan fiction, Harry Potter and the Methods of Rationality first came out in serial fashion, chapter by chapter, I got turned onto it and enjoyed it immensely. Eventually, though, thanks in large part to the length of time between installments, I lost track of it somewhere around Chapter 101. Then I ran across the complete, finished product recently on a slicker website and thought I'd share it for anyone looking for a fun diversion. Many of us who work in political realms could use one these days. Count Grits among those whose ready for election season to be over.

Ignore self-interested complaints by defense bar over Travis County public defender creation

Your correspondent and Just Liberty signed onto this letter supporting creation of a public defender office in Travis County. Give it a read.

Embarrassingly, the local criminal defense bar in Austin opposes this move. But quite honestly, they had their chance with the "managed assigned counsel" system they foisted onto the county. That system has been an abject failure and the commissioners court should stop listening to the people promoting it.

Geoffrey Burkhart, the new head of the Indigent Defense Commission, explained to commissioners court members how a fundamental conflict of interest faced by Travis County defense attorneys is producing bad outcomes. Reported the Austin Monitor:

Defense attorneys can earn the same amount of money whether their defendant accepts a plea bargain or if the case is dismissed, with the first often taking only a fraction of the time as the latter. Effectively, if a plea bargain is quickly accepted, a defense lawyer’s hourly wage increases dramatically. If too many cases are piling up for attorneys, there is even greater incentive to swiftly reach a plea deal. 

As a remedy, TIDC suggests a public defender office to take over 30 percent of Travis County cases – enough to keep attorneys and other employees busy but not so much as to pressure them to rush cases. For regional reference, the public defender office in Dallas takes about 50 percent of cases, while that in Harris County handles just under 9 percent of cases.

That's so obviously the right move, it's distressing that local criminal defense lawyers would publicly cling to the failed managed-assigned-counsel system, which produces MUCH worse outcomes for defendants than those wealthy enough to retain private counsel.

Travis County's "managed assigned counsel" system was the local criminal defense bar's alternative to a public defender office the last time one was proposed, and their expensive, cumbersome, and overly bureaucratic suggestion failed. County commissioners should not now include those voices in the planning process for the new public defender office. They had their chance, and the continued naysaying and whiny protests are unhelpful and, at this point, superfluous.

In light of that history, now's the time to create a public defender office, not to debate one.

TX inmate population declined 7% over last decade - would be more but for increase in long drug sentences, declining releases

The Texas Department of Criminal Justice (TDCJ) finally released its annual statistical report for FY 2017, 18 months after the last annual report was released, and more than a year after the fiscal year ended.

I'll dig into the report more deeply later, but let's look at some top-line trends.

At the end of August 2017, there were 145,341 prisoners incarcerated in TDCJ, a reduction of 10,785 from a decade prior in 2008, or a seven percent decline. (See the FY08 report.)

That's nothing to sneeze at, given that before then Texas inmate populations were rising on a steadily upward curve. But it's a smaller reduction than seen in other large states like California or New York. And Texas remains, along with Louisiana and Oklahoma, the global epicenter of mass incarceration.

The number of people entering TDCJ dropped over the period '08 to '17 from 74,283 to 65,278, for a 12 percent reduction over the last decade.

But that was offset by an 8.7 percent reduction in number of people released from prison in '17 compared to '08. So fewer people were coming in, but they're letting fewer people out, keeping inmate populations high. In the past several years, the percentage of sentence served by those released has been creeping up, from 58.1 percent in FY14 to 61.1 percent in FY17.

As Grits has mentioned before, the big growth area for both prosecutions and incarceration in recent years has been the drug war. Thirty percent more drug offenders were incarcerated in prison (meaning they're serving a sentence for third-degree felony or higher) in 2017 than ten years earlier, while 70 percent fewer cycled through the state jails. The number of people in SAFP drug treatment programs also dropped, by 42 percent, or about a thousand people.

Big picture: that represents a shift in drug punishments from shorter sentences and drug treatment to longer sentences and less drug treatment.

The number of people on death row declined over the decade from 346 in '08 to 224  at the end of FY17. But the number sentenced to life without parole skyrocketed, from 121 to 1,021.

And when one examines sentence lengths, the number of inmates incarcerated for longer sentences increased, while the number incarcerated for the shortest terms declined. Same goes for new "receives"; they tend to have longer sentences than in 2008. Sentence lengths overall appear to be shifting upward (perhaps, in part, as lower-level offenders are diverted out of the system).

More than 70,000 offenders are presently eligible for parole.

Grits' takeaway from these topline data: Texas has successfully begun to decarcerate, but in fits and starts. More than 10,000 fewer inmates in TDCJ is why the Legislature could close eight prison units over these last few years. But the prison population could have been reduced more if drug prosecutions hadn't ballooned and release rates hadn't declined.

Prison guard beat handcuffed inmate to death, how to build a better crime lab, the effects of criminal-justice debt, federal justice reform gets real, and other stories

Here are a few Texas justice stories that merit readers' attention this weekend, as well as some national items which caught Grits' eye:

Prison guard beat handcuffed inmate to death
The inmate beaten to death in the shower by a Huntsville prison guard this summer was handcuffed when he was attacked, reported the Houston Chronicle's Keri Blakinger in an update. The guard was charged with aggravated assault, but those facts read like a minimum of manslaughter, to me, and outright murder doesn't seem much of a stretch, given the clear intent. The CO had been ordered by a supervisor to stay away from the inmate after a confrontation earlier in the day, but he allegedly violated orders, took the inmate into an empty shower area, and beat him to death.

How to build a better crime lab
Our pals Sandra Guerra Thompson and Nicole Casarez from the Houston Forensic Science Center's board have a new academic article out titled, "Three Transformative Ideas to Build a Better Crime Lab," focused on crime-lab independence and governance.

Hack M.E.
Former Travis County medical examiner Roberto Bayardo was a complete hack. KXAN recapped his hackery this week in the Michael Morton case.

Crowdfunding not enough $ for rape kits
The crowdfunding bill passed last session at the Texas Legislature didn't go nearly far enough to clear backlogs of untested rape kits, a new documentary demonstrates.

Man bites dog Prosecutors support expungement
The New York Times reported that some prosecutors are beginning to embrace expungement as part of reentry-related criminal-justice reforms. That's remarkable. In Texas, DAs in the past fought expungement bills tooth and nail. I'd love so see some Texas prosecutor embrace this tactic.

Where are police disciplinary records public?
Check out an analysis of the relative openness of police disciplinary records in all 50 states. Texas would have been among the most open 30 years ago. Today, we're among the middling group with "limited availability" of those records. "Limited" is definitely the operative word.

Effects of criminal-justice debt
Alabama Appleseed conducted a survey of 980 people who owed criminal-justice debt related debt. They found:

• 83% gave up necessities like rent, food, medical bills, car payments, and child support, in order to pay down their court debt.
• 50% had been jailed for failure to pay court debt.
• 44% had used payday loans to cover court debt.
• 38% committed a crime to pay off their court debt.
• 20% were turned down for a diversion program like drug court because they could not afford it.
• 66% received money or food assistance from a faith-based charity or church that they would not have had to request if it were not for their court debt.

Reimagining prisons
The Vera Institute's new Reimagining Prisons report goes on Grits' to-read list.

Federal prison/sentencing reform may move after election
Senate Majority leader Mitch McConnell this week announced he would take a whip count on the FIRST-STEP-Act-plus-sentencing reform after the November elections and give the bill a vote if 60 members support it. Soon thereafter, President Trump added his full-throated endorsement, declaring he would overrule Jeff Sessions on the topic if the Attorney General opposed the bill. The president opined that sentencing reform must pass because black people are being treated "very unfairly." Notably, Judiciary Committee Chairman Chuck Grassley's sentencing reform bill has been tacked onto the FIRST-STEP Act, which passed the House on a bipartisan basis. Though perhaps it would be presumptuous to suppose new-found support for sentencing reform among GOP leadership had anything to do with the chairman expediting the Kavanaugh nomination, Sen. Grassley has recently carried a lot of water for the President and Majority Leader and now has chips to cash in. Glad he's using some of them on this.

Ted Cruz's vote key on federal justice reform
One more thing on federal reforms: Here in Texas, our job is to convince Ted Cruz to support the FIRST-STEP/Grassley reform measure. Texas' junior senator now finds himself on the opposite side of the issue from both President Trump and Senate leadership. If he were to flip, the opposition coalition would likely disintegrate.  Cruz was one of four senators to oppose Grassley's bill in committee and has been shedding his last remaining libertarian bona fides on justice reform to try to out tuff-on-crime Beto O'Rourke. Since he's in the midst of a hot election, though, perhaps that will translate into heightened sensitivity over constituent calls. His contact info is here.

Reporters mustn't overstate forensics accuracy - ballistics edition

In light of ballistics evidence from a federal database leading to arrests in linked, gun-related crimes, the Houston Chronicle last week ran a feature on how an ATF initiative is using ballistics evidence compiled in a national database to solve gun crimes.

But the story failed to acknowledge shortcomings with ballistics evidence and overstated the accuracy of firearms matching. In particular, they repeated the claim by law enforcement that, "The ATF database allows firearms experts to match high-resolution photos of marks left on bullet casings after being fired. The guns' firing pins leave a mark unique to each gun, allowing investigators to connect casings fired at different shootings."

The "unique" part is unproven. And the phrase "match" is overstated. The seminal critique on this topic came from the 2009 National Academy of Sciences (NAS) report, "Strengthening Forensic Science: A Path Forward." Ballistics matching is one of the areas of non-scientific "forensic science" being challenged in the innocence-era wave of re-evaluation.

The NAS report specifically discussed the National Integrated Ballistics Information Network (NIBIN) database described in the Chronicle article. At the time, it was still under development. However, the NAS cautioned that, in the end, the computer still doesn't do the matching. That's in part because, as they also showed, there are no standards to match to; it's a subjective comparison performed by an examiner. With the NIBIN system, according to the NAS report:

the final determination of a match is always done through direct physical comparison of the evidence by a firearms examiner, not the computer analysis of images. The growth of these databases also permits examiners to become more familiar with similarities in striation patterns made by different firearms. Newer imaging techniques assess toolmarks using three-dimensional surface measurement data, taking into account the depth of the marks. But even with more training and experience using newer techniques, the decision of the toolmark examiner remains a subjective decision based on unarticulated standards and no statistical foundation for estimation of error rates. The National Academies report, Ballistic Imaging, while not claiming to be a definitive study on firearms identification, observed that, “The validity of the fundamental assumptions of uniqueness and reproducibility of firearms-related toolmarks has not yet been fully demonstrated.”

So there is no computer matching of ballistics, it's done by examiners who make a "subjective decision based on unarticulated standards and no statistical information about error rates." Knowing that, all of a sudden, accusations based on ballistics evidence may appear less certain than portrayed in the story by the ATF.

For more background on critiques of ballistics and toolmark evidence (the former discipline is a subset of the latter), check out the 2009 NAS report. (Ctrl F and search on "toolmark" to find the relevant passages.) That report changed the terms of debates regarding traditional forensics like ballistics. And even though it's now nearly ten years old, with few exceptions (arson, hair and fiber analysis), forensics fields have taken at most baby steps to address the problems.

IMO, reporters should no longer write uncritically about disputed, comparison-based forensic evidence - even when police say it led to a "match" and make arrests based on the findings - without acknowledging that these are subjective comparisons, not scientific results. We've seen too many innocence cases featuring flawed forensics for the system to project that level of certainty.

El Paso 'shaken baby' conviction latest capital case challenged under TX's junk science writ

Texas' junk science writ continues to impact high-profile capital cases, this time causing re-evaluation of faddish "shaken-baby" science, which in recent years has come under fire. An El Paso judge recommended a new trial for Rigoberto Avila, declaring scientific testimony against him in his case "false and misleading." Now the Court of Criminal Appeals must decide his fate. Reported the Texas Tribune:

“The new scientific evidence creates a compelling case for Mr. Avila’s innocence, and a judge has now found that the verdict against him rests on false and misleading testimony,” Avila’s attorneys, Cathryn Crawford and Rob Owen, said in an emailed statement. "After spending 17 years on death row – and facing four serious execution dates – for a crime he did not commit, Mr. Avila is anxious to present the reliable scientific evidence to a jury.” 

In August, podcast co-host Mandy Marzullo and I discussed how the junk-science writ has impacted death-penalty cases, and this story adds more context to that discussion.

The combination of Texas' Forensic Science Commission's work - along with the state's early adoption of the junk-science writ - has put the state at the bleeding edge of efforts to challenge faulty forensics. We have both a dedicated body charged with critiquing bad forensics and a legal means to challenge them that doesn't exist in other states. (Texas' near-term leadership on forensic reform was cemented after the Trump Administration nixed national USDOJ initiatives to update and improve modern forensics.)

In Texas, capital cases are the one sliver of indigent defendants whose appeals are all paid for by the state, meaning those defendants have access to attorneys to file a state habeas corpus writ. So it makes sense that many of the most high-profile, early uses of the junk-science writ would come in death-penalty cases. By contrast, plea the case to life without parole, and a defendant accused of the same crime with the same evidence would have no access to an attorney at the habeas corpus stage.

That's why the junk-science writ is being used disproportionately in capital cases. It's not that faulty evidence wasn't used to secure other convictions. It's that those other folks don't have access to attorneys or experts to challenge the false evidence.

The Daubert and Frye standards used by the courts have utterly failed to keep junk science out of Texas or American courtrooms on the front end. In the long run, Grits' hope is that the junk-science writ provides a back-door means to challenge shoddy forensics, and that, once discredited, courts will stop using that evidence going forward. That's what happened with scent lineups (using police dogs), and to me it looks like the most likely path for eliminating bad forensics in an era when judicial gatekeepers have utterly and profoundly failed us on the front end.

For best outcomes, shift focus of justice system away from debt collection

More jurisdictions are recognizing that, when it comes to using the justice system for debt collection instead of, well, justice, the juice isn't worth the squeeze.

After a state Supreme Court Committee criticized New Jersey's municipal courts for serving as an ATM for local governments, the court issued an order which could lead to dismissal of 800,000 old warrants statewide, ceasing enforcement on warrants more than 15 years old.

Texas, it should be noted, has this same problem: Traffic ticket warrants remain active for decades, and people many not even know they still owe money. In Austin, the County Attorney made headlines by having people arrested to collect debt from traffic tickets from the 1980s!

Such examples of overreach have led to a bipartisan backlash: At their state conventions in June, both the Republican Party of Texas and the Texas Democratic Party included provisions in their platforms calling for an end to jailing drivers for non-payment of traffic tickets and other Class C misdemeanor debt, switching to commercial collections methods, instead. So maybe we'll see some movement on that front here.

Meanwhile, in California, Los Angeles County is eliminating $90 million worth of debt owed by families of juvenile defendants who were charged for their own incarceration. Declared an LA County Supervisor (the equivalent of a county commissioner in Texas), “It is simply not worth the cost and effort to the county — and more importantly, not worth the cost to families — to continue with these collection payments.”

Grits isn't sure if there's a juvenile analog to this policy in Texas, but some counties charge indigent adult defendants for their attorneys fees and even incarceration costs, creating the same conundrum for indigent probationers.

Among the reasons the Board of Supervisors took this action:

Research shows that juvenile detention fees impose financial hardships and strain on low-income families and weigh disproportionately on black and Latino youth who are overrepresented in the criminal justice system and are often sentenced to longer terms than white youth. ... 

Research also suggests the fees may increase recidivism. A study of more than 1,000 youth in Pennsylvania found that the total amount of fines, fees and/or restitution significantly increased the likelihood of recidivism within two years, even after controlling for demographics and case characteristics. 

“The two main purposes of the juvenile justice system are to rehabilitate kids and to protect public safety, and it turns out these fees undermine both of those,” said [law professor Jeffrey] Selbin of UC Berkeley.

Grits recently highlighted a new study showing that, when police departments focus on revenue generation through traffic tickets, their skewed priorities result in lower clearance rates for other crimes. It seems likely that the same is true for probation departments: That focusing on fee collection reduces the likelihood that their charges will succeed on probation. The recidivism data cited above from Pennsylvania certainly seems to support that supposition.

FWIW, it's not at all clear that these moves to erase criminal-justice debt will result in less revenue. Debt collection in Texas has remained relatively steady in recent years, even as the number of traffic tickets and warrants issued has plummeted.

Indeed, when Texas reformed Class C sentencing in 2017 to let judges waive fines and sentence people to community service more readily, collections actually improved. IMO that's because local officials weren't spending so much time spinning their wheels pretending to collect un-collectable debt, so could focus on other aspects of their jobs.

The project of shifting the justice system's priorities from debt collection to public safety - which in many ways began with the Justice Department's report on abusive policies around traffic ticket/municipal-court debt in Ferguson, MO - inevitably will be slow and arduous because it involves so many different institutions and decision makers.

But it's beginning to happen, bit by bit, and every time it does, the "sky is falling" predictions of the debt collectors are discredited and public-safety outcomes improve.

Robot criminals, 'overstated findings' by a crime lab analyst, bail advice that was costly to ignore, and other stories

Here are a few browser-clearing odds and ends that merit Grits readers' attention:

'Overstated findings' by DPS analyst
The Texas Forensic Science Commission dinged a DPS lab chemist for "overstated findings" in the blood-spatter case Pro Publica's Pam Colloff has been following. See her latest update here.

There oughtta be a law
Texas extended sex-offender registration requirements for thousands of people without any legal authority, the Austin Statesman's Eric Dexheimer reported. Now, some are suing, saying the state is breaching the "contract" entered into at their plea deals.

Are Texas senators nixing federal sentencing reform?
An op ed from a retired Houston cop says Texas' two US Senators, Cornyn and Cruz, "have become the face of opposition to sentencing reform, and without their support, our state began losing its leadership role on this critical issue."

Bail advice that was costly to ignore
Today, Grits ran across a 2014 report from the Texas Fair Defense Project recommending that Harris County shift to individualized bail hearings and get rid of its bail schedule. Not only did Harris County reject that advice, they spent $7 million fighting TFDP and Civil Rights Corps in court before losing and having to hold individualized hearings, anyway. They would have saved a lot of time and money if they'd just fixed the problems when advocates raised them.

Rethinking justice from 'Square One'
Via Sentencing Law and Policy, check out the Square One project encouraging the rethinking of criminal justice policy. Bruce Western argues that racial inequality and poverty underlie crime dynamics, while Arthur Rizer proposed a conservative paradigm for justice reform based on "limited government, parsimony, and liberty."

'A punishment need not leave physical scars to be cruel and unusual'
See a thoughtful critique of solitary confinement from SCOTUS Justice Sonia Sotomayor, beginning on page 15 of this pdf.

Robot criminals
For the reading list: Ying Hu, "Robot Criminals." Some of these questions arose in Grits' discussion of Houston's proposed sex-robot ban.

Should 'progressive' DAs pay dues to reactionary DA associations? Still waiting on 2017 prison data. and other stories

A few odds and ends that merit Grits readers' attention:

Should 'progressive' DAs pay dues to reactionary DA associations?
When the District and County Attorneys in Travis County recently proposed a merger, they sought support from local #cjreform advocates, who in turn pressed prosecutors for a number of reforms, among which was to stop paying dues to the Texas District and County Attorneys Association. (Unlike the Texas Criminal Defense Lawyer Association, where dues are paid only if an individual lawyer chooses, prosecutors' dues are generally paid by taxpayers from a line item in the DA's budget.) Now, in New York, civil rights advocates are calling on "progressive" DAs to stop paying dues to their association on the grounds that it has been "a consistent barrier to criminal-justice reform." Same can be said for our Texas crew.

Ugly civil rights episode in DeSoto
A DeSoto woman who called the cops to break up a fight between her sons called the choice to dial 911 "the worst decision I’ve ever made as a mom." Although the situation had calmed down by the time police arrived, they emerged from their vehicles with guns drawn. The mother stepped in front of the scene, telling them "Don't shoot my sons." Not an insensible request, in the scheme of things. But "the officers slammed her down on the hot pavement as she tried to speak out." Her three sons were also arrested for interference with police. Two of them lost their jobs when they couldn't show up for work the next day. The mother lost her job, as well, "after she missed work to seek hospital treatment. Medical records show she suffered shoulder and ankle sprains, along with bruises to a knee and wrist." A spokesman for the police chief said the public's response in such situations should be to "comply now and complain later." The department has so far refused to release bodycam footage from the event.

Snitch testimony caused false conviction
An exoneration out of Tarrant County corrected a false conviction based on incentivized informant testimony.

Counties label shirked justice responsibilities 'unfunded mandates'
On Twitter, the Texas District and County Attorney Association has insisted that Texas mustn't undertake bail reform without the Legislature investing big bucks in pretrial services. But bail and pretrial detention are matters under county control and traditionally paid for by county budgets. If their systems are not meeting constitutional muster, they're on the hook for the expenses. For example, Dallas County must hire 24 additional employees to hold individualized bail hearings, the Dallas News reported. And the Legislature hasn't mandated a darn thing! The Texas Association of Counties has taken to referring to all requests that counties perform their basic duties competently as "unfunded mandates," but these mandates arise from citizens' basic constitutional rights, not the Legislature. Even if the Lege fails to pass bail reform, these lawsuits will continue county by county, and local taxpayers will still be on the hook.

Still waiting on 2017 TX prison data
It's been almost 18 months since 2016 data was released, and the Texas Department of Criminal Justice still hasn't come out with its FY 2017 Annual Statistical Report. WTF?

Voters, press, overwhelmed by judicial race volume
Ridiculously, "there are 75 contested judicial races alone on the November ballot" in Harris County, reported the Houston Chronicle. Notably, in 2020 Texas will eliminate straight ticket voting. But it's almost an insurmountable task for voters to independently evaluate that many judicial candidates. Most of these should be appointed slots.

Sunshine is the best disinfectant
California just made police disciplinary records and body cam footage public. Texas should, too.

The very model of a modern reform prosecutor
In Philadelphia, a couple of items related to new District Atttorney Larry Krasner caught my eye: 1) He is prosecuting police officers for civil rights violations in non-shooting cases, including inappropriate stop and frisks, and 2) he released an video/conversation with sujatha baliga, on the topic of prosecutors and restorative justice. Both are important developments.

Capital-punishment explainer
The Justice Collaborative has produced a lengthy, abolitionist-oriented explainer document on capital punishment with a lot of good information in it. Check it out.

School involvement and incarcerated parents
An academic analysis on topic from last year parsed the issue in a variety of media: a traditional academic article, a blog post, and a short podcast. Nicely done.

Police-involved deaths by race
A new study estimates the risk of police-involved death by race: "Police kill, on average, 2.8 men per day. Police were responsible for about 8% of all homicides with adult male victims between 2012 and 2018. Black men's mortality risk is between 1.9 and 2.4 deaths per 100 000 per year, Latino risk is between 0.8 and 1.2, and White risk is between 0.6 and 0.7."

Pot-penalty-reduction policy has something in it for everybody

One often hears critiques that the justice system is "racist," and even those who hesitate to use that word must acknowledge that it produces discriminatory outcomes. The 21st century culture-war debates around #cjreform frequently are less about whether the system discriminates so much as whether there exists ill intent. Or whether, when discriminatory outcomes are so persistent and ingrained, the actors' "intent" even really matters.

When one examines the system closely, however, discriminatory outcomes aren't universal. They're more prevalent in some parts of the system than others, and one of the biggest sources of discriminatory outcomes is the Drug War.

The Texas Criminal Justice Coalition just put out a new data tool for analyzing criminal cases in Harris County since 2010, and it provides a useful starting point for demonstrating this observation.

For example, looking at countywide DWI data since 2010, we find that 13.8 percent of defendants were African American. Black folks make up about 19 percent of Harris County residents, so that's actually a lower proportion than their share of the population.

By contrast, when we look at marijuana arrests over the same period, we discover that a whopping 48.5 percent of defendants were African American.

Digging deeper to analyze results by agency, 59.25 percent of people arrested for marijuana by Houston PD were African American, 46.8 percent at the Harris County Sheriff, and 29 percent at smaller PDs in the county.

IMO, the difference here is that DWI arrests are mostly made as the result of fairly solid probable cause: Cops see someone swerving across lanes or smell alcohol on their breath at a traffic stop.

OTOH, it's hard not to conclude that there's more discriminatory targeting of black folks in the realm of drug enforcement. How else can HPD explain why nearly 60 percent of pot arrestees are black compared to a quarter of the city population? Nothing else but discriminatory enforcement makes sense to explain these data.

When Gov. Greg Abbott recently endorsed reducing marijuana penalties, he framed the issue as one of efficiency, wanting to keep pot smokers from needlessly filling up local jails at taxpayers' expense. But reduction of pot penalties can just as easily be framed as a racial-justice priority. In fact, both can be true at the same time.

A recurring theme on this blog, dating back to its earliest days, is that some of the strongest, most politically resilient reform proposals (and public policies, generally) are those with enough ambiguity to their meaning so that different constituencies can credibly tell themselves different stories about them without a fundamental contradiction. Reducing marijuana penalties fits that bill.

For liberals and libertarians, penalty reduction is a credible next step on the road to legalization, a goal prioritized in the state Democratic Party platform. It will eliminate more than 60,000 arrests statewide - disproportionately African Americans - the very first year the law is enacted. And it will contribute significantly to decarceration goals at Texas county jails.

For fiscally minded conservatives, those 60,000 defendants are costing taxpayers' needlessly for jail and indigent defense at a time when counties are complaining of unfunded mandates. Make the crime a Class C misdemeanor and the county neither must pay for their incarceration nor hire them a lawyer. So this is a "mandate" from which the Legislature could relieve county taxpayers.

Both these things can be true without either group of supporters disagreeing with the outcome of their allies' thinking, even if they may disagree with the priorities and ideological suppositions that got them there.

That helps explain why, despite the hyper-partisanship of the political moment, a Texas Tribune poll published in January found that 79 percent of Democrats and 62 percent of Republicans supported reducing penalties for low-level marijuana possession. (A majority in the poll, 53 percent, favored full-blown legalization.)

With the Governor's endorsement, Texas appears poised to finally reduce user-level marijuana penalties in 2019. Because they're racist. And because they're expensive. And inefficient. And discriminatory. And unfair. And because many people want to legalize it entirely. And because all those things can be and are true without being mutually exclusive. There's a little something in this policy for everybody.

So many questions about H-Town sex-robot ban

Even the Chronicle's headline, "City Council may move to block sex robots near Galleria," raises so many questions ....

Will Houston only prohibit sex robots near the Galleria, and if so why has it alone been designated a sex-robot free zone? Will there be specified areas of town where one is allowed to have sex with robots? Areas where it's required?

It's not clear to me in which part of Houston it's legal to engage in coitus with a sex robot - whoops, oh yeah ... it's everywhere.

The Chronicle quoted an attorney declaring, “There are currently no laws in the U.S. to prevent the sale of the type of dolls intended for this ‘robot brothel."

For the record: If the City Council is interfering with their constituents' robot coitus, is that a cock-block, a bot-block, a bot-cock-block, or some other iteration Grits hasn't considered?

It feels like certain terms need to be updated for the scenario. The phrase "sex machine," for example, takes on completely different connotations.

If a person voids the warranty on one of these machines, would they be charged with a deviant sex act?

For that matter, which movements by the City Council, in particular, will block bot cocks? 

City Councils in Texas can only create Class C misdemeanors; they cannot create new crimes whose punishment involves jail time. So will the robots be ticketed? Or will their owners receive the citation while the bots are seized as contraband?

If police begin to seize sex bots, I'd expect the night shift in the HPD evidence room to become a much more popular assignment.

Or will this be a zoning initiative, where the City blocks bot cocks in some sections of town and not others? And how will neighborhoods know whether theirs is considered sex-robot friendly or if, as near the Galleria, they have been designated a Pleasure-Free-Zone?

Just to mention it, "brothel" appears to be a term used only by their critics, not the company itself. But the Chron story repeated the term ten times in one story and five times in another, including in both headlines. Not that they're taking sides, or anything.

Never mind that this is a "brothel" in which, under current law, no one can be prosecuted for solicitation, pimping, human trafficking, etc., or that the vicimization/degradation has been delegated to machines, which might be a better situation than the Best-Little-Whorehouse-In-Texas model.

It has to do with sex, so we'd better ban it.

The whole brouhaha began because "Toronto-based KinkySdollS had announced plans to open a Houston branch where 'adult love dolls' constructed of synthetic skin and highly articulated skeletons would be available 'to rent before you buy.'

To be fair, an adult love doll sounds like a big investment, so maybe rent before you buy isn't such a bad idea.

How many boat owners' spouses wish their partners had taken such a precaution?

Regardless, the Outrage-Industrial-Complex kicked into gear. Mayor Sylvester Turner soon announced he will not tolerate the sale of what amount to elaborate sex toys in his fair city.

However, the mayor comes at the argument from a point of weakness, knowing full well that, if the business opens, there is almost certainly a market for it. Hence, the need for a City Council vote.

For the time being, apparently, we're going to ignore the fact that the constitutional precedent against banning sale of sex toys is already well established. (If you'd forgotten, Sen. Ted Cruz can remind you; he's been through this fight.) 

These stories tickled my funnybone, but they also show how ill-conceived criminal laws get passed, with politicians and the media conjoined in a corrupt confederacy to "do something" about a made-up problem. 

The breathless response - bandying around the term "brothel" to maximize the shame/scandal factor aimed at a new local business - smacks of a prudery-based overreaction by government, intersecting with the media's need to promote salacious stories. Not exactly our society's best moment.

In the end, your correspondent agrees with the assessment of the Endgadget writer who declared sex robots "no more dangerous or awe-inspiring than a Roomba." And surely the government has better things to do than specify which body parts one can and can't insert into a Roomba.

Austin PD shoots too many mental-health patients, Top Bexar jailer resigns amidst crime spree by subordinates, and other stories

Here are a few odds and ends that deserve Grits readers' attention:

Top Bexar jailer resigns amidst crime spree by subordinates

The SA Express-News reported that the top supervisor at the Bexar County Jail has resigned "amid a troubling year for the Sheriff’s Office, which has struggled with escape attempts from the jail and the arrest of 20 deputies on a variety of criminal charges, including domestic abuse, assaulting inmates and driving while intoxicated." Good Lord! Local jails deserve a lot more media attention.

Austin PD shoots too many mental-health patients
Austin PD has "the highest per capita rate of fatal police shootings involving persons believed to be experiencing a mental health crisis" among comparable cities studied, according to a recent audit. The probe also found, according to the Austin Monitor, that "the department did not track and review crisis intervention incidents to improve outcomes and was not providing what are considered the best-practice elements in its training of crisis intervention officers." Moreover, "APD dispatchers were not automatically sending one of APD’s mental health officers to lead in responding to mental health-related calls." See also Austin Statesman coverage. The Austin Justice Coalition has been urging the city to stop using APD as the lead agency on mental-health calls, using an approach being piloted in conjunction with the Meadows Foundation in Dallas - a matter on which the find themselves in agreement with Republican U.S. Senator John Cornyn, interestingly enough. 

Criminalization on behalf of public health

San Antonio has banned tobacco products for youth under 21, while the statewide ban ends at age 18. It's indisputable youth starting smoking later will save lives, so it's hard to dispute the move. But as mentioned in the discussion over marijuana punishments, I do wish there was some way besides criminal fines to regulate business activity in Texas.

More McLennan cases languishing

Not only will  the incoming McLennan County District Attorney have to deal with the Twin Peaks biker fiasco, the Waco Tribune Herald reported that there are hundreds of prostitution cases - mostly men charged with Class B misdemeanors - which have been sitting idle and in many cases, un-filed at all. Outgoing DA Abel Reyna appears to have just stopped dealing with the cases after he lost his re-election bid in March, judging by the timeline in the story.

Abbott endorses reduced pot penalties during gubernatorial debate

An email from Texas NORML brings the news that Texas Gov. Greg Abbott endorsed reducing penalties for low-level marijuana possession in last night's debate. They put out the image at right that included his money quote on the topic.

Go here to watch a video clip of the candidates' exchange regarding pot policy.

Notably, the Republican Party of Texas earlier this year endorsed reducing the penalty for possession of small amounts of marijuana to a civil penalty carrying a small fine. However, Gov. Abbott endorsed a slightly different proposal: Reducing penalties to a Class C misdemeanor.

What's the difference?

There are collateral consequences under federal law that attach to any criminal drug conviction, one of the most significant being denial of access to student loans, among others. Creating a new civil penalty would avoid those collateral consequences, which are not triggered by a civil fine.

Gov. Abbott's proposal - simply reducing the penalty by one category-level to a Class C - would have much the same effect on punishment practices. Most people would receive tickets instead of being arrested, so counties wouldn't have to pay for incarceration or hire them lawyers if they're indigent. The maximum punishment would be a fine, not jail time.

The argument in favor of the Governor's approach: It's a cleaner fix, legally speaking. Texas doesn't presently have civil penalties for much besides the Driver Responsibility surcharge, which itself is larded on top of criminal penalties, not levied instead of them. (Toll roads are the other main example.) Indeed, even business regulations here are typically enforced via criminal statutes. That's why, for example, Texas has so many felonies its citizens can commit with an oyster. The Legislature avoids regulation so much, they even choose to criminalize discouraged business practices.

For me, the civil penalty is the better bill, given the two options. The issue of collateral consequences is a big one, and no joke. But either proposal would be a big improvement over the status quo, as presently more than 60,000 people are arrested and jailed every year in Texas on low-level marijuana charges.

UPDATE: Since we're revisiting this discussion, just for fun, here's a jingle Just Liberty used to promote the civil penalties bill in 2017.

No fix in sight for nixed crime lab fees, bail reform redux, and other stories

Here are a few odds and ends that merit Grits readers' attention (for those of you not focused on the spectacle in D.C. surrounding Brett Kavanaugh):

No fix in sight for nixed crime lab fees
After Gov. Greg Abbott rescinded new fees authorized by the Legislature last year after they cut the agency's crime lab budget, nobody has ever come up with the extra money, leaving Texas DPS crime labs poised to run out of operating funds before the end of the fiscal year. Here's a brief overview from the Legislative Budget Board, published in April. It indicates caseloads have grown 21 percent over the last two biennium, despite the recent budget cut. Most larger agencies operate their own crime labs or pay for lab functions via fee for service. The agencies responsible for using the most DPS crime lab services are mid-sized agencies: Corpus Christi PD, Lubbock PD, the Montgomery County Sheriff, Plano PD, and the Midland PD.

What they think
Right on Crime has compiled polling on criminal-justice topics from various sources. Check it out.

Understaffed prison unit needs to close
The Texas Department of Criminal Justice's Connally Unit in Kenedy County is so understaffed they're having to bus in guards from 200 miles away. In a rational system where prison closures were matched to the agency's biggest staffing and management problems, the Connally Unit would probably be the next unit closed.

Bail reform redux
Dallas has lost Round One of its bail litigation. Here's the preliminary injunction from the federal judge overseeing the case.

When prosecutors hold the Thin Blue Line
Twice, the San Antonio PD asked District Attorney Nico Lahood to prosecute one of their own for on-the-job mendacity. Both times, his office declined, reported the SA Express-News.

Reform DA candidate in Tarrant
Check out a profile of the Democratic candidate for Tarrant County DA, who is running on a #cjreform agenda. By contrast, the GOP incumbent has been running around telling people Texas has no problem with mass incarceration.

The ever expanding sex-offender registry
The sex-offender registry in Texas includes nearly 100,000 people. The Austin Statesman has a feature about how it's become so bloated, and the fight over rules changes that apply lifetime registry requirements to offenders who were told when they pled guilty that wouldn't be the case.

Study: When cities rely on ticket revenue, police clearance rates decline

On the latest Reasonably Suspicious podcast, released yesterday, Mandy Marzullo and I discussed a theory suggested by Jay Wachtel that the innocence movement and measures taken to prevent false convictions had contributed to a decline in crime-clearance rates.

Grits wishes I'd read this Washington Post op ed, published online the day we recorded, before that conversation, and perhaps we'll revisit the topic. The authors suggested another provocative, possible cause of low clearance rates: A disproportionate focus by police on revenue generation over public safety.

The writers are academics who recently published a study demonstrating that "Police departments that collect more in fees and fines are less effective at solving crimes." In particular:

Examining nearly 6,000 cities’ finance and crime data for each of the two studied years, we find a strong link between revenue collection and clearance rates. Police departments in cities that collect a greater share of their revenue from fees, fines and civilly forfeited assets have significantly lower rates of solving violent and property crimes. 

We suspect that this comes simply from how these police departments focus their time and resources. Departments that need to collect fee and fine revenue shift their officers away from investigatory work. That’s especially true in smaller cities, where we found an especially clear link: Higher revenue from fees and fines meant fewer violent crimes solved. Cities with smaller departments and fewer resources are less likely to have specialized investigators, so when patrol officers are collecting revenue, they’re not investigating more serious crimes.

How big an effect are we talking about?

Let’s imagine a city of 50,000 people — call it Middletown — where the per capita income, racial demographics, crime rate and similar variables are the same as the state averages. Nationally, on average, municipalities bring in 2 percent of their revenue from fees and fines. If Middletown’s police department collected only about 1 percent of its revenue from fees and fines, our model predicts it would solve 53 percent of its violent crimes and 32 percent of its property crimes. But if Middletown’s police department instead collected 3 percent of its revenue from fees and fines, our model predicts that clearance rates would fall to 41 percent for violent crimes and 16 percent for property crimes. That’s a stark drop of 12 and 16 percentage points, respectively.

In the podcast, Mandy suggested that one viable, alternative theory for low clearance rates might be increased alienation between marginalized communities and law enforcement, and the study authors also framed their findings in that vein:

Some communities have a saying: “The police are never there when you need them and always there when you don’t.” Our findings help explain this adage. In cities where police are collecting revenue, communities are at once overpoliced — because they are charged with more fines and fees — and underpoliced — because serious crimes in their areas are less likely to be solved. 

This dynamic of simultaneous overpolicing and underpolicing reduces the community’s trust in policing and in government more generally. For many citizens, police interactions may be their only contact with any government official. If citizens see the police in particular and the government in general as exploiting them for revenue, they are unlikely to see either as allies in keeping their communities safe. Low clearance rates, especially for violent crimes, reduce public trust in the police and in government as a whole — leading them not to cooperate with either.

A reduction in crimes solved surely is an unintended consequence of municipal revenue generation through ticketing. But just because the costs are borne by crime victims, and not the taxpayers as a whole, doesn't justify government ignoring them.

Notably, at their state conventions in June, both the Republican Party of Texas and the Texas Democratic Party included provisions in their platforms calling for an end to jailing drivers for non-payment of traffic tickets and other Class C misdemeanor debt, using commercial collections methods, instead. This new analysis shows that such a shift in focus may result in more, actual crimes being solved, bolstering the case for reform.

One recalls former Dallas police Chief David Brown suggesting that society calls on law enforcement to handle too many problems. Surely, municipal revenue generation is one of those demands that should be taken off their plate.