On increasing prosecutor caseloads in an era of crime decline

On Twitter, TDCAA complained about Grits' observation in this post that, as the number of crimes with victims declined over recent years, police and prosecutors have shifted their focus to areas where they may maintain or even increase caseloads despite more than two decades of dropping crime.

The association is right that caseloads have increased. Grits has discussed before how the number of criminal convictions statewide continued to rise long after crime and arrests began to drop. In his book, Locked In, John Pfaff demonstrated the same trend occurred nationwide from the mid-90s to the late aughts, with the number of felony-charges-per-arrest over that period rising from one-in-three to two-in-three. So, even as crime and arrests declined, the number of convictions continued to rise.

On the ground, Grits sees this trend playing out as law enforcement shifting resources to activities that aren't particularly public-safety oriented and which certainly aren't responding to people's victimization.

For example, the Ector County Attorney authored a blog post in February detailing his 2017 caseload. (County Attorneys in Texas prosecute all misdemeanor cases.) The top two offenses prosecuted by his office were marijuana possession (19% of cases) and Driving With Invalid License (17%). At 16% of the caseload, DWI enforcement came in third.

I don't want to pick on Mr. Gallivan because his numbers are pretty typical - he just happened to have put his caseload data out there. But 36 percent of his office's caseload is either prosecuting people for paperwork violations (DWLI is about license status, not safety), or churning through low-level arrests for a nonviolent activity (user-level pot possession) which would be legal in nine states and the nation's capitol. (In related news: A Quinnipac poll out this week found that nearly 2/3 of Texas voters support legalizing recreational pot possession.)

These are the big growth areas in prosecutor caseloads. Similarly in the Travis County data that originally inspired the prosecutors' complaint, possession-level drug arrests accounted for nearly all of the increase in caseload; otherwise, jail bookings had gone down.

So when crimes with victims diminish, these sorts of evergreen offenses are where the system shifts its focus.

None of this is raised to blame prosecutors - the Legislature creates and defines crimes, not them, and often they are reacting to whom police choose to arrest. Rather, my point is to raise the question: Is that what we want the justice system to be doing? When crime goes down, is it a good use of resources to criminalize paperwork violations or prosecute pot smokers to justify high staffing levels? Would taxpayers be better off if Mr. Gallivan prosecuted all those DWLI and pot cases, or if he eliminated 36 percent of his staff and provided voters with tax relief (with additional relief coming from lower jail and court costs, etc.)?

These seldom-discussed questions are worth asking, even if the prosecutors' association takes offense. They're not the only ones to blame for a distorted and dysfunctional system, but right-sizing it will require significant changes to how they perceive and perform their duties.

Appointed counsel in Austin radically increases chance of conviction on drug charges; police pursuing victimless drug cases as crime declines

Defendants in Travis County were far more likely to be convicted of state-jail felony drug charges if they were indigent with an appointed attorney compared to those who hired their own lawyers, according to a KXAN-TV report based on a new Council of State Governments analysis. And police are making more arrests for low-level drug possession, even as jail bookings for all other offenses have declined. (Your correspondent was briefly quoted in the KXAN story.)

Perhaps the most disturbing finding was the effect an appointed lawyer had on case outcomes: The report found that, "80 percent of people in the past five years were found guilty on drug charges if they used a court-appointed attorney. If they paid for their own attorney, only 48 percent were found guilty on drug charges."

These are similarly situated defendants demonstrating radically different outcomes based on how (and how much) their lawyers are paid. Certainly, it's a bad look for the "managed assigned counsel" program in Travis County. Grits believes we'd see much better outcomes from a full-time public defender office. In Harris County, for example, the public defender office "achieved a greater proportion of dismissals, deferred sentences, and acquittals, and a smaller proportion of 'guilty' outcomes, than assigned counsel. HCPD secured acquittals on all charges at three times the rate of appointed and retained counsel."

The Travis County data demonstrate how failure to invest in one part of the system can create even greater costs for taxpayers down the line. By underpaying attorneys who then do not adequately vet cases, more people (2/3 more) are convicted, which then leads to extra costs for incarceration in state jail or supervision on probation. For that matter, some percentage of those sentenced to probation will also be revoked and eventually incarcerated, too.

The upshot: if indigent drug defendants in Austin received a comparable quality of defense as people who hire private lawyers, it would reduce incarceration costs significantly down the line.

In addition, the report cast light on the disturbing trend of law enforcement focusing on victimless drug-possession cases as crime overall declines. From the CSG report:

Bookings in Travis County for arrestees with SJF increased while overall bookings declined

• Overall jail bookings in Travis County decreased by 14% between 2013 and 2017, but bookings of arrestees with SJF increased by 9%

• SFJ-DP [drug possession] bookings increased by 34%

Why would drug arrests increase during a period when crime and jail bookings overall declined?

My theory: Crime may have declined but the number of police officers and prosecutors stayed the same or increased over the same period, and those people need something to do with their days. At the same time, there are FAR more people using drugs than are routinely arrested, so there is a deep pool of petty, low-risk offenders into which law enforcement may cast its nets. And even if they're only catching "little fish" - state jail felony drug cases involve less than a gram of a controlled substance - at least they're going through the motions of making arrests and enforcing the law. Essentially, this is rent seeking behavior on the part of law enforcement.

Together, this rent seeking activity, combined with institutionalized incentives for poor-quality lawyering among appointed counsel in Travis County, prioritize the interests of players in the system over both defendants' constitutional rights and systemic equity. Thus it's understandable why things would be this bad, just not acceptable.

An undocumented necropolis at the (former) Central Unit, TX Supreme Court Chief Justice inspired by the Ferguson report, and other stories

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

Galveston sued over bail schedule
ACLU has sued Galveston County over its bail schedule, adding that county to Harris and Dallas as bail litigation sites. If your county still operates under a bail schedule, they'll soon have to change. Better to do it now before you're successfully sued. Ask the judges in Harris County.

Central Unit property an undocumented necropolis
Here's a postscript to the closure of TDCJ's Central Unit in Sugar Land, which long-time readers will recall was the first prison unit closed in the Lone Star State since the founding of the (Texan) Republic. When Fort Bend ISD began preparing a portion of the sight for a construction project, they began unearthing bodies. Lots of them - 22 as of when this Houston Chronicle story was written. These were inmates from the convict leasing era and later who worked for the Imperial Sugar Company as de facto slave labor through the early part of the 20th century. A cemetery on the prison site included only white inmates' remains, which led activist Reginald Moore to believe that black prisoners were buried in unmarked sites elsewhere on the grounds. Turns out, he was right. See related, earlier coverage from Texas Monthly and commentary from Grits. MORE: The number of unmarked graves discovered is now 79!

TX courts limit pretext stop searches
Following a reversal by the Texas Court of Criminal Appeals, the First Court of Appeals issued a ruling limiting the scope of searches incident to arrest. The First Court ruling limits law enforcement's authority to arrest drivers for Class C misdemeanors as a pretext for searching their car.  The case involved a driver arrested for failure to signal a lane change. Police found drugs in his car trunk, but the courts have now ruled they had no reason to search there: "What police officers may not do, even when they conduct a search incident to a lawful custodial arrest of a recent occupant of a vehicle, is to search the vehicle when the arrestee is secured and not within reaching distance of the passenger compartment," according to the new opinion. See coverage from TheNewspaper.com and all the relevant court documents.

Looks like pot to me!
A Harris County crime lab employee was fired for drylabbing marijuana samples.

Is fast track a death-trap for innocents?
Check out an innocence-based argument against Texas' petition to fast-track death-penalty appeals. Anthony Graves has rightly pointed out that he would have been executed before he ever could have been exonerated under the new rules.

Ferguson report inspired TX debtors-prison push
Marc Levin of the Texas Public Policy Foundation interviewed Texas Supreme Court Justice Nathan Hecht about his decision to champion debtors-prison and bail reform issues. See also a related blog post. Hecht was introduced to the debtors prison issue thanks to the USDOJ's report on overreliance on fine revenue out of Ferguson, Missouri, he told Levin.

Murder-insurance program notches LWOP verdict
The Regional Capital Public Defenders Office, which provides representation in capital cases for counties that participate in its so-called "murder insurance" program, won a life-without-parole verdict recently in a case involving the murder of a San Antonio Police officer - the first such trial verdict in their ten-year history.

SAPD to county: We hate your new jail intake facility
Grits doesn't know enough yet to tell who is right about the dispute between San Antonio PD and the Bexar County commissioners court over whether SAPD should use the new intake center built at the jail. But my gut leans toward the county: the redundancy makes little sense for taxpayers, and Chief McManus sounds like he's more worried about the officers' convenience than enacting best practices at the jail.

Ombudsman report tallies inmate complaints
Check out the TDCJ Ombudsman report for 2017. Visitation remains the perennial main source of complaints (6,389), with another 1,424 prisoners complaining they weren't being housed in accordance with medical restrictions (48 were reassigned). But 955 offenders complained of threats or intimidation by other inmates (offenders were reassigned in 140 cases), while inmates complained 720 times of physical abuse or threats by staff (26 of those cases were referred to the Office of Inspector General). In related non-news, we're still waiting for the TDCJ Annual Statistical Report for FY 2017, which ended in August of last year.

New Houston rules aim to limit offender services
Charles Blain from Empower Texans has an item up on new Houston zoning rules aimed at excluding facilities for ex-offenders. Wrote Blain:

Houston Mayor Sylvester Turner and City Council passed an ordinance that bans alternative housing and correctional facilities, including reentry homes, from opening within 1,000 feet of schools, parks, or other facilities. The new ordinance also requires reentry facilities, approved by the Texas Department of Criminal Justice, to apply for a city permit. The permit will identify the type of facility so local officials can “monitor” the locations of ex-offenders living in private reentry homes across the city, allegedly in the name of public safety. 

Houston’s 99 currently operating facilities will be grandfathered in under the new provision. But once the owner sells the facility or passes away and wills it to an heir, the facility must come into compliance with all of the new regulations, including the distance requirement. So, as facilities inevitably change hands over time, many will be forced to close or open elsewhere. 

Supporters claim that the regulation will improve “public safety,” but like in many other zoning disputes, it evolved from small contingents of people who felt uncomfortable with the homes in their neighborhoods. 

Comments made during the public hearing for this regulation centered largely on a fear of ex-offenders, rather than statistical public safety data.

Tuff-on-crime cluelessness
Former Texas Democratic Congressman Sylvestre Reyes has a column in the Austin Statesman decrying "How fentanyl got its grip on Texas." This commentary ignores the best research out there which says Texas has mostly avoided the fentanyl-driven opiod death spike because the cartels that sell in Texas' market distribute "black tar heroin," which is less pure and not easily combined with fentanyl. See related Grits commentary on the same hearing Reyes is discussing.

Suicides among cops continue to outpace line-of-duty deaths
A recent spate of reporting reiterated that suicides among police far outpace line-of-duty deaths in shootouts with bad guys. This has been true for a long time, and is exacerbated by a lack of suicide-related treatment services for police.

Assessing Harris County bail litigation as it nears denouement

In last month's Reasonably Suspicious podcast, I interviewed Susanne Pringle, executive director of the Texas Fair Defense Project, about the denouement of the Harris County bail litigation, in which her organization was one of the plaintiffs. Since we spoke, Galveston County was sued by the ACLU over essentially similar grounds, and Dallas County already faced litigation over its bail system, so the Harris County domino falling may soon take down quite a few other county's pretrial detention regimens.

When Judge Lee Rosenthal issues her revised injunction in light of the 5th Circuit's ruling, in many ways it will be like firing off a starting gun. That document will set the parameters for bail systems throughout Texas, establishing a minimum floor for constitutionality. Any county continuing with a bail schedule or violating other shall-not portions of the injunction will find itself low-hanging fruit for a similar suit. So expect a lot of local-level activity on this front over the coming year, and probably a legislative reaction in 2019.

Here's the excerpt including the interview with Pringle:


Find a transcript below the jump.

Populist backlash snuffs Pflugerville Tuff-on-Crime resolution

A majority of the Pflugerville City Council were listed as co-sponsors of a resolution this week declaring that violent crime was on the rise and calling for prosecutors and the courts to seek maximum penalties in all cases for both violent offenders and drug possession. In the 1990s, one saw these regularly from all levels of government, with officials who had no formal role in the justice system trying to jump on the Tuff-on-Crime bandwagon.

This time, though, the grandstanding maneuver back-fired.

Measure-Austin, a local police accountability group, put out the word among Pflugerville residents that their city council was about to do something regressive and foolish. And Just Liberty created a local email action alert that generated 74 constituent letters to the mayor. Community members showed up to oppose it and won a 5-0 vote against the resolution, which started with 3 of 5 council members as sponsors!

According to video posted on Twitter, one of the sponsoring council members moved to postpone the item indefinitely, to which the Mayor replied that he'd feel more comfortable if they postponed the item "eternal." The motion author accepted the amendment, and that's the motion that passed.

Grits finds this episode particularly notable and encouraging. As mentioned, not so long ago, these sort of grandstanding Tuff-on-Crime resolutions were as common as stink on a pig and played quite well with their intended audience, very much across party lines. These days, public support for such regressive stances has dissipated and a more motivated, militant, and bipartisan opposition to mass incarceration appears to be emerging.

Indeed, it's hard to describe for anyone younger than about 35 how radically different this episode was than the situation that faced us when your correspondent entered this work in the mid-'90s. Like night and day.

Myths and dilemmas surrounding DNA testing backlogs

The Fair Punishment Project has a good roundup in its In Justice Today Texas newsletter of stories on Texas' efforts to reduce the so-called "rape kit backlog," and I was pleased to see among them this item identifying "5 myths" surrounding the controversy over un-tested rape kits from the co-founders of People for Enforcement of Rape Laws.

I agree with most of that commentary, but there's one other "myth" they didn't cover: That every un-tested rape kit has the potential to identify a criminal. Many times, the reason rape kits go un-tested is that the identity of the alleged assailant isn't the issue. Rather, the issue is whether a sexual act was consensual, and the existence of DNA doesn't prove culpability.

For more context, check out the lab director from the Los Angeles Sheriff's Office discussing the cost-benefit issues surrounding testing of rape-kit backlogs at a National Institute of Justice event in 2010. They spent $1.7 million to analyze their rape-kit backlog to find just two viable suspects.

In Houston, by contrast, they found many more un-solved cases when old rape kits were tested. IMO that's because HPD was doing a much poorer job of investigating sexual assaults than the Los Angeles Sheriff. This speaks to one of the main critiques of the authors of the "5 myths" article:

The failure of law enforcement to properly investigate rape is not limited to testing rape kits. Too often, investigations are closed before a kit is even taken. Investigating and solving a rape case takes actual police work. Detectives must find and interview witnesses, interview the victim, track down evidence, corroborate the account of events with both the victim and witnesses, and compare the case details to unsolved cases to try to detect patterns. Yet instead of doing this necessary legwork, police unfound, downgrade, and “disappear” rape cases. 

Take the Detroit police department, which, “under nine chiefs, both male and female, sustained a culture in which officers routinely neglected rape complaints or actively discouraged victims from seeking redress, all without fear of consequence,” according to Detroit Free Press columnist Nancy Kaffer. The department, like others, has a long history of underreporting rape. In 2001, the department admitted that the statistics it reported to the FBI for rape arrests — which were at least twice the national average throughout the 1990s — were seriously flawed.

That's a fair analysis, but it doesn't apply to every agency. The examples of HPD and the LA County Sheriff illuminate how widely that can vary from department to department. Not every agency suffers from a culture of neglected rape complaints, but when it happens, it compounds tragedy in bunches.

At one point, the National Institute of Justice had issued a grant to Houston PD (also Detroit) to develop protocols regarding when it was and wasn't appropriate to perform DNA testing on rape kits. There is a detailed website illuminating all sorts of interesting aspects about this project, but Grits has still never seen any final recommendation regarding exactly under what circumstances law enforcement should choose not to have a rape kit processed at the crime lab. (If I've just missed them, please, somebody point them out; once my job ended as the Innocence Project of Texas policy director, I stopped tracking these topics closely.)

Grits mentions this not to discourage testing of rape kits, nor to make excuses for those in the past who allowed rape cases to languish un-investigated. But because there are, in fact, viable circumstances under which the expense of rape-kit testing isn't justified - particularly in cases where the principle issue is consent, not identity - until such protocols are promulgated, law enforcement will continue to make decisions about whether to test rape kits on a case by case basis.

Better to just create a set of reasonable best practices then pressure everyone to follow them, than to insist that every rape kit be tested and backlogs always = zero. Then, police will know what's expected of them and the public will better understand why an un-tested rape kit isn't per se evidence of police negligence or incompetence.

Another question raised by such test-or-no-test protocols: Might there be rape victims who are unnecessarily subjected to invasive evidence-gathering procedures who needn't be? It's not fun to go through that (I'm told), and in cases where it's clear from the get-go it's not necessary, maybe a lot of these women needn't go through the experience in the first place. Stranger rape is pretty rare, after all. If police were trained up front when rape-kit evidence might be pertinent to an investigation and when it's unnecessary, maybe you could chip away at the number of un-tested kits from that direction.

Finally, having mused over this recent spate of reporting on the topic, Grits should point out a related, recent article from the Washington Post that raises the fraught and difficult question looming over all these rape-kit backlog debates: What happens when the results come back? Nothing simple, is the short answer.  Houston's approach seems as reasonable as any:

Houston tried a different model. A hotline was set up and publicized, so that any victim who wanted information about their old kit could ask for it. Then, police and prosecutors combed through the CODIS hits and decided which cases actually had a chance of moving forward in the criminal justice system. Victims were notified only if their cases seemed “actionable.” “What’s at stake is the well-being and mental health of sexual assault victims,” says Noël Busch-Armendariz, a researcher who was involved in Houston’s process. “You never know where people are in their lives and what support systems they have or don’t have ready for them.”

Louisville, by contrast, notified every woman on the list her kit would be tested, even if there turned out to be no one else's DNA in the sample. "In Virginia," according to the Post, "this dilemma would ultimately pit police, prosecutors, advocates and lawmakers against one another, making the situation far more complicated than they ever intended. Everyone wanted to do the right thing for victims; there was just no way to know what that was."

Ironically, for a situation in which everyone wants to "do the right thing for victims," often victims opinions in the process are either unsolicited or roundly ignored.

These are incredibly difficult questions which won't be resolved anytime soon. The USDOJ under the Trump Administration has issued a recommendation that every rape kit associated with a criminal complaint be tested, reported the Post, but law enforcement agencies on tight budgets likely will balk at truly unnecessary testing, especially if it becomes required in volume.

Your correspondent doesn't have solutions to these issues, but there's a growing urgency to confront them.

Texas' juvie decarceration provides example for adult side

This graphic from a recent Dallas News story (4/6) says nearly all you need to know about juvenile corrections in Texas over the last four decades:

The main thing to add is that juvenile crime increased during most of the period the curve went up and was (and is) decreasing on the downward side of the slope. For the most part, high incarceration levels have demonstrated little correlation with crime, with juvenile crime reducing drastically during the period the state decarcerated its youth prisons.

Juvie decarceration in Texas is arguably the most important accomplishment of the "Right on Crime" era among Lone-Star Republicans, even if the job remains unfinished. Texas launched its juvenile decarceration scheme just four years after the GOP took over the Texas Legislature for the first time since Reconstruction, and has now been sustained through successive governors, with reductions now accelerating again under Gov. Abbott.

Texas has proven the concept on the juvie side. Now the task is to convince those same leaders to apply the same lessons to the adult system, where our prison population remains the highest in the nation and the prison system releases some 70,000 people per year. Many of those people would be less likely to recidivate if they'd never been sent to prison at all!

Some days, your correspondent despairs that Texas' behemoth of a prison system can ever be successfully dismantled. This example provides hope. If juvie prisons can reduce their populations by three quarters and the public barely noticed, maybe state leaders will see that there's little political risk and a lot to gain by reining in a sprawling and outdated adult system. Indeed, as on the juvie side, adult decarceration should seen as something for which politicians can take credit, with failure to embrace it garnering blame.

On indigent defense and 'unfunded mandates'

Grits is broadly sympathetic to the much-ballyhooed claim (championed most prominently by the Texas Association of Counties) that Texas state government unfairly cost shifts to county and municipal governments via "unfunded mandates." But critics of unfunded mandates are wrong to include indigent defense in the "unfunded mandate" critique and are only doing so by ignoring the real and much more costly "unfunded mandates" running in the other direction.

In the Waco Tribune Herald, McLennan County Precinct 4 Commissioner Ben Perry articulated the oft-heard complaint:

Indigent defenses expenses are a good example of an unfunded mandate forced on counties, Perry said. 

The state once covered the costs of providing legal representation for people accused of crimes who cannot afford adequate defense, as required by the U.S. Constitution. But the state has been reducing its contribution for years. 

The county has almost $4.7 million budgeted for indigent defense this year, up from $4.1 million in 2014. 

That includes $270,000 in state money this year, down from $532,000 in 2014. 

The Texas Fair Defense Act of 2001 does not include a way to pay for its requirements, shifting the expenses to county taxpayers, the county’s resolution states. Statewide spending on indigent defense in 2016 was more than 2.7 times as much as it was when the act passed, according to the Texas Association of Counties. 

The state spent $247.4 million in 2016, up from $91.4 million in 2001.

The second paragraph in that pull quote is just a lie. There has never been a time when the state paid for all indigent defense costs in Texas; it was entirely a county-level responsibility until after the new millenium. The article itself includes a graphic demonstrating that claim is false:

Notice the state contribution in 2001 was $0. The state began to put in MORE money after the Fair Defense Act, not less. Moreover, the majority of the increase at the county level may be accounted for by inflation and population growth. 

The big (unstated above) problem is that, before the Fair Defense Act, counties simply didn't comply with their obligations to appoint counsel, especially in misdemeanor cases. That was, indeed, cheaper. In many counties, when the Fair Defense Act passed, no misdemeanor defendants were appointed counsel - zero, zilch, nada. Now, appointment rates often approach 50 percent, not great but better. You can blame the state for making the locals comply with the constitution, if you prefer to deprive defendants of their 6th Amendment right to counsel to save a buck. But that doesn't make this an unfunded mandate, any more than it's an unfunded mandate to require counties to pay for local prosecutors.

The volume of indigent defense services required is largely a function of local decisions and priorities, so if the DA's office is still prosecuting lots of penny ante cases even after crime has declined for two decades, locals should foot the bill for those defense costs.

The flip side of this "unfunded mandate" argument are the un-discussed unfunded mandates to the state. McLennan County has a reputation for securing tougher-than-typical plea bargains, but state taxpayers must pick up the tab for high incarceration rates and longer sentences. And those costs are FAR greater than the costs for those prisoners' lawyers.

Grits has long believed the Lege should offer the Texas Association of Counties a deal on indigent defense: The state picks up the full indigent defense tab, and counties pay to incarcerate every defendant they send to TDCJ for the whole time they're inside. Then everything would be "fair."

Except that "fair," as I frequently tell my granddaughter, is a place where they judge pigs. It doesn't generally have much to do with the Texas justice system, and certainly not with how it's financed.

RELATED: If crime is down, asks legislator, why are indigent defense costs rising?

ALSO RELATED: 'Cap and Trade' proposal could end mass incarceration

Secret courts, Kafkaesque tales, and a prosecutor fired for fidelity to the law

Let's clear a few browser tabs with a quick roundup:

'Kafkaesque' tale began with Class C stop
Here's a story from In Justice Today - "Traffic stop begins man's Kafkaesque journey through a Texas county's bail system" - that ties together the issues of arrests for Class C misdemeanors in Harris County and their bail litigation, about which we updated with an interview from one of the plaintiff's attorneys in our latest Reasonably Suspicious podcast.

Harvey washed away Harris jail crowding gains
Speaking of the Harris County Jail, after making some progress in recent years, it's overcrowded again thanks to court backlogs from Hurricane Harvey. They may seek variances to use temporary beds at the next Jail Standards Commission meeting.

Secret courts in Dallas?
Bail hearings in Dallas are held in secret, reported the Texas Observer! That's nuts. Open courts doctrine, anyone? Anyone?

SCOT to decide if DA can fire prosecutors for refusing to violate Michael Morton Act
Private employers cannot fire an employee for refusing to violate the law, but former Nueces County DA Mark Skurka fired a prosecutor named Greg Hillman for refusing to withhold exculpatory evidence from the defense in violation of the Michael Morton Act. Now, the Texas Supreme Court will decide whether sovereign immunity protects the DA from accountability. Lisa Falkenberg at the Houston Chronicle authored a fine article on the subject.

Not faking
A Milam County Jail inmate - a probationer awaiting access to drug treatment services - has filed suit after receiving a beating from guards that left him paralyzed from the waste down. He alleges that staff ignored his injuries and a nurse accused him of "faking." See coverage from The Daily Beast and KWTX.com.

Police reform model passes in CA
California has passed major police accountability legislation. I will be curious to see what they did and compare it to the big Texas bill on the topic proposed by Rep. Senfronia Thompson last session.

'The Recidivism Trap'
Our old pal Vincent Schiraldi along with John Jay's Jeffrey Butts authored an important commentary for the Marshall Project titled, "The Recidivism Trap." They argue persuasively that, "Rather than asking 'what’s the recidivism rate?' we should ask an entirely different set of questions about justice interventions." Related: Grits has previously questioned whether low recidivism rates are always an appropriate goal (see here and here), since states like Texas and Oklahoma which over-incarcerate low-risk offenders are more likely to see low recidivism than states that limit 24/7/365 caging to more high-risk people.

Considering Texas DA primaries in light of new models out of Philly for prosecutors opposing mass incarceration

The March episode of the Reasonably Suspicious podcast we included an update on the March 6 primary elections involving Texas District Attorneys and the Court of Criminal Appeals.  Then we compared so-called "progressive" District Attorney candidates in Dallas to Philadelphia's new DA, Larry Krasner, discussing a new memo Krasner put out directing his prosecutors to use their discretion to reduce mass incarceration. By contrast, Texas' "progressive" DAs and DA candidates are all much more moderate. I've excerpted those two segments here:


See a transcript below the jump.

Texas overdose problem still more focused on meth than opiods

The Texas House Select Committee on Opiods and Substance Abuse posted handouts from their March 27 hearing, and Grits thought it worthwhile to point out a few highlights. See in particular handouts from:

• Texas Legislative Budget Board
• Texas Department of Criminal Justice
• Meadows Foundation

Let's do a quick overview of substance abuse resources in Texas, then try to answer a couple of questions raised by the Texas District and County Attorneys Association on their Twitter feed.

For starters, funding for substance abuse in Texas comes primarily from two sources: Medicaid and TDCJ. Between them, those two sources account for 97.4 percent of all government substance-abuse funding in the state, split roughly equally, reported LBB. Just more than $386 million are spent on SA treatment through Medicaid, while around $343 million is spent on treatment through TDCJ.

The difference, though, is where state money is spent. Overall, 58 percent of funds spent on substance abuse come from state general revenue coffers. But most of that is spent on treatment in corrections environments. Overall, state general revenue funds pay for only 24 percent of Medicaid expenditures on substance abuse, but more than 98 percent of treatment funds at TDCJ.

With a total incarcerated population of 145,399, TDCJ has 10,047 incarceration beds dedicated to substance abuse, and the parole system has 7,592 people on specialized substance abuse caseloads.

There are another 2,897 secure treatment beds used by the probation system, TDCJ reported.

Source: Meadows Foundation

The Meadows Foundation estimated that nearly eight (8) out of 100 Texans suffer from a substance abuse disorder. More than half of adult Texans drink alcohol, 10 percent use marijuana (!), and 2 percent use cocaine, the foundation reported.

Treatment admissions for alcohol, cocaine/crack, and opiods have declined in recent years, while admissions for heroin and meth have been rising. Overwhelmingly, the largest number of admissions were for alcohol.

Source: TX HHSC

TDCAA on its Twitter feed linked to a chart showing opiod deaths in Texas happen at a lower rate than nationally, and would like to credit law enforcement efforts. They tweeted: "Questions for #txlege to answer next session will include (a) why is TX faring better? and (b) how to we maintain/improve that performance?"

Certainly, people without access to healthcare have a tougher time getting addicted to prescription opiods, and Texas has among the highest uninsured rates in the country. Moreover, while not approaching spikes seen in some states, overdose deaths attributable to opiods and heroin have more than doubled since the turn of the century, according to the HHSC graphic cited.

But really, the comment mainly just ignores the fact that drug use differs regionally and Texas addicts still tend to favor meth over heroin. This fact has historical roots. When Texas clamped down regulating legal antihistamines used by addicts to cook meth, Mexican drug cartels took over the trade and began pumping truckloads of cheap speed into the state to fill the gap in the market. Meth prices plummeted while addiction and overdoses increased. So it's not so much that Texas is "faring better" as that the state's patterns of addiction aren't the same as in Ohio and Pennsylvania. According to the Addiction Research Institute at the UT-Austin School of Social Work, "There were 715 deaths due to methamphetamine in Texas in 2016, as compared with 539 due to heroin."

Tack on those deaths, and all of a sudden Texas isn't so much "faring better" than "faring differently."

Moreover, the Addiction Research Institute gave the best explanation for why Texas hasn't seen as many opiod deaths as in the Northeast, and it's not because of law enforcement efforts but because of differences in the market: " Texas has not yet suffered the epidemic of overdoses seen in the northeast because the heroin in Texas is Mexican Black Tar which cannot easily be mixed with fentanyl. The purity of Black Tar is 45%-50% as compared to 80%-85% purity for Mexican-South American heroin in the northeast."

So the answers to TDCAA's questions are, 1) "We aren't faring better, our problems are just different," and 2) "Market trends among cartels, not Texas policy, account for the different overdose patterns. Since neither Texas policy nor the 'performance' of law enforcement is responsible for the lower number of opiod deaths, there's no policy implied that would 'sustain or improve that performance.'" This is not a Texas-does-it-better issue, it's an all-problems-are-local issue.

Revenge porn from the DA? ... and other stories

Let's clear a few browser tabs with a quick roundup:

Just Liberty Platform Campaign Update
As results roll in from around the state, Just Liberty's platform project turned out to be even more successful than we thought. Resolutions to implement #cjreform were passed in 17 Republican senate districts and 16 Democratic ones. Most of the Democratic SDs approved all 16 Just Liberty resolutions. And on the Republican side, the Young Republican Federation of Texas endorsed our entire agenda and encouraged their members to champion #cjreform resolutions in their own local conventions. We even created a catchy little jingle to promote the campaign online. Now it's on to the state conventions, where the party platforms will be finally approved and hopefully include our proposals. The process of promoting the resolutions within these party processes has already helped identify new allies around the state, whom we hope in turn will add weight and credibility the legislative push on #cjreform issues in 2019.

Voting case against ex-felon a politicized disgrace
This Tarrant County case of a woman receiving a five year sentence for voting with a felony record is one of the most absurd and politicized abuses of justice I've seen in quite a while (perhaps going back to the roundup after the Twin Peaks Biker Massacre, if we're ranking episodes of prosecutorial overreach).

The DA, discovery, and 'revenge porn'
Speaking of the Twin Peaks Biker Massacre, DA Abel Reyna's office got dinged by a judge for releasing nude photos of a defendant's wife that he had on his phone to the other 176 defendants as part of discovery materials. Critics dubbed the episode a case of "revenge porn," which is a bit far-fetched, but a funny way to frame it. The defendants have all been ordered to delete the images.

'Confessions taken here'
All the high-profile murderers who pass through Williamson County appear to confess to this guy. Or maybe the confidential informant system incentivizes fabricated testimony. You make the call.

Might more ticket writing reduce traffic fatalities?
Corpus Christi has announced a plan to ramp up traffic ticket writing in response to traffic fatalities, although there's at best a tentative and unproven correlation between the two. For example, statewide, Texas has seen traffic fatalities decline during periods when police officers wrote fewer tickets. The correlation between writing more tickets and generating more revenue, by contrast, is much more firmly established.

Texas seeks shorter capital deadlines
Texas is seeking to opt-in to shortened timelines for death penalty appeals, reported Keri Blakinger at the Houston Chronicle, after Attorney General Jeff Sessions suggested it last year. Given the often-poor quality of capital representation under current timelines, it can't be a great idea to squeeze those timelines even further.

NY Times story on Galveston indigent defense ripe for other reporters to localize

In the New York Times last week (March 29), former Austin Statesman editor Richard Oppell authored an article that could resonate throughout Texas indigent defense systems, as it describes a practice that's widespread, not remotely limited to the judge or attorney in Galveston at the center of the story. Here's the heart of the allegations:

A criminal defense lawyer in Galveston, Tex., says he was pulled off cases defending poor clients because he spent too much time on them and requested funds to have their charges investigated. 

Needless to say, his clients were not the ones complaining. Instead, it was the judge, Jack Ewing, who appoints lawyers for those in his courtroom who cannot afford them. “You overwork cases,” Judge Ewing told the lawyer, Drew Willey, according to excerpts from a recorded conversation cited in the lawsuit. 

Though an estimated four of every five criminal defendants in the United States use court-appointed lawyers or public defenders, many of the nation’s indigent defense systems have been criticized as desperately inadequate, leading to false guilty pleas and overincarceration. 

Lawyers who represent the poor can be required to juggle hundreds of cases at a time, accept pay far lower than the market rate, or take cases for which they have little experience. 

This new case, though, exposes another potential problem: Indigent defense lawyers often get their assignments from the judges in whose courtroom they appear. This discourages a robust defense, experts say, and leads to an emphasis on resolving cases quickly. 

The tensions may be familiar to lawyers, but they are rarely so candidly aired as in this lawsuit, filed in federal court last week and bolstered by parts of a recorded conversation with the judge.

Grits has heard similar stories from defense attorneys for as long as I've paid attention to the Texas justice system, including attorneys stiffed not just for time worked but also for investigators' fees or even forensic services.

Which brings me to this observation for Texas-based reporters: This is a national story which can be localized. This isn't the only Texas jurisdiction, by any stretch, in which judges reduced pay requests from lawyers as excessive when they tried to put on a zealous defense. There are also stories out there of lawyers losing out on appointments because judges considered them a tad too zealous. Attorneys who make a living representing indigent clients must routinely take on caseloads well beyond bar-association-recommended guidelines in order to pay for a mortgage, middle-class lifestyle, and law-school debts. This story explains why, and it's not just happening in Galveston.

So, for my reporter friends on the local courthouse beat: There's a courthouse paper trail on cases where judges reduce attorneys' fees, which a local attorney who takes indigent cases or the court coordinator can help you identify. Then, one simply calls up the attorneys to ask why they requested the additional pay. Follow up with calls to the judges in question to get their side of the story; the county judge so s/he can lodge a complaint about unfunded mandates from the state; then make a call to indigent defense experts like the Texas Fair Defense Project or Civil Rights Corps (the two nonprofits that sued over Harris County's unconstitutional bail practices), and you've just localized a national story.

Indeed, there's a small mountain of data, including lawyer-specific payment information, available from the Texas Indigent Defense Commission. Once you dig into these topics, there's a lot of material for an enterprising reporter with which to work.

So thanks, Richard Oppell, for exposing a statewide problem in the form of this Galveston anecdote. Now it's up to Texas reporters to pick up the baton and expose the same practices in their own jurisdictions. The story's there to be had, and "It would make some local judges mad" isn't a good enough reason not to report it.

Danny Ray Thomas shooting cast harsh spotlight on Harris County police shootings

The shooting of Danny Ray Thomas, a mentally ill man with his pants around his ankles who was shot to death by a Harris County Sheriff's deputy, has made national headlines and led to a greater-than-ever light cast on shootings by law enforcement in Texas' largest county.

Grits wanted to round up a few of the more notable stories, as this episode appears as though it will frame debates over police accountability in Texas for the foreseeable future:

• The Intercept (Shaun King): Danny Ray Thomas was a broken man who needed help. Instead he was gunned down by a cop in broad daylight
• BBC: Houston officer shoots unarmed man with trousers down
• Texas Monthly: Fatal shooting of Danny Ray Thomas tests Houston's progressive law enforcement leaders
• Houston Chronicle: Deputy's shooting of Danny Ray Thomas reignites debate over use of force, police accountability
• Houston Chronicle: Deputy's bodycam was charging when unarmed man was fatally shot
• Houston Chronicle: Congresswoman Sheila Jackson Lee calls for federal probe of Houston police shooting
• Houston Chronicle (op-ed, Amanda Woog and Paul Heaton): Here's how Houston can prevent police shootings

March Reasonably Suspicious Podcast: Primary election wrap-up, pushing #cjreform in state party platforms, unconstitutional legal fees, Harris County bail suit update, a stunning judicial power play, and more

Sliding in under the wire at the end of the month, check out the March 2018 episode of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice politics and policy. Subscribe on iTunes, GooglePlay, or SoundCloud, or listen to the podcast here:


Here's what my co-host Mandy Marzullo and I talked about this month:

Top Stories

• Conviction overturned because Tarrant County District Judge George Gallagher shocked defendant with stun belt for no valid security purpose.
• Texas Court of Criminal Appeals holds more court fees unconstitutional for raising revenue rather than paying for justice services.

Primary election roundup

• Recapping Texas contested Texas DA and Court of Criminal Appeals races
• Comparing "progressive" DA candidates in Dallas and elsewhere to Philadelphia's Larry Krasner
• Update on Just Liberty's campaign to include criminal-justice reform in both Texas state party platforms. Includes Just Liberty's catchy jingle done by some of the same amazing musicians who performed our original podcast music.

Check in on Texas pretrial reform litigation

• Harris County bail litigation: Interview with Susanne Pringle, executive director of the Texas Fair Defense Project, regarding the 5th Circuit's ruling in the Harris County bail litigation in which her group is one of the plaintiffs.
• Travis County plea mill challenged: Local attorneys file a demand letter challenging misdemeanor dockets where lawyers must negotiate plea bargains almost immediately after receiving the file and meeting their clients for the first time.

The Last Hurrah

• Harris County District Judge Michael McSpadden blamed Black Lives Matter for poor advice to black defendants sitting in jail.
• For 30 years, municipalities in Tarrant County have paid to house defendants pretrial in unregulated city jails until prosecutors at the DAs office filed charges. The new Sheriff has changed the practice to match the other 253 counties.
• Johnnie Lindsay, one of the earliest Dallas DNA exonerees who was frequent visitor to the state capitol advocating innocence reforms, passed away this month. Scott Henson remembers him and his contributions.

Find a transcript of the podcast below the jump.

Open records review should include criminal justice, and other stories

A few quick hits before I finish editing our podcast today:

CCA takes up cell-phone location data case
Grits was a bit surprised to see that the Texas Court of Criminal Appeals granted review on Ex Parte Christian Sims involving Fourth Amendment/cell-phone location data issues, given that the US Supreme Court's ruling in Carpenter is expected to come out this term. See the petition here and a case summary from the State Prosecuting Attorney.) OTOH, the CCA and SCOTUS are addressing slightly different questions: Whether cell-phone location data is subject to Fourth Amendment protections is the question at stake in Carpenter, while Sims asks whether Texas' statutory exclusionary rule applies to violations of the Fourth Amendment and Art. 1, Sec. 9 of the Texas Constitution.

Possible innocence case
DNA testing excluded a Tarrant County man who's been in prison 19 years for alleged child molestation and point to another, unknown party. Prosecutors insist he's guilty, anyway.  Good coverage from the Fort Worth Star Telegram.

Open records review should include criminal justice
The House Committee on Government Transparency meets next week in part to discuss updating open records laws (see coverage from the Caller Times). The push to do so doesn't involve criminal justice, but transparency laws in that area need serious attention. See this Grits commentary from 2016 regarding aspects of the Public Information Act related to the justice system which have been gutted in favor of opacity over the last three decades.

Skimping on mental health boosts crim-just costs
The SA Express News recently featured a good editorial on how the Texas Legislature's failure to fund mental health services impacts the criminal-justice system. Reported the paper:

[Texas] taxpayers are footing an estimated annual bill of $1.4 billion in emergency room costs and another $650 million through local justice systems to address mental illness and substance abuse disorders. 

In Bexar County alone, 10 percent of the 31,438 individuals booked in the county lockup were diagnosed and treated for mental illness.

The editorial touted the recently created Judicial Commission on Mental Health as a potential vehicle for suggesting reforms.