Sunday, August 21, 2016

How much could local taxpayers save by eliminating arrests for petty misdemeanors?

In Kentucky, legislators are facing a revanchist push by Democrats to overturn 2011 legislation passed by that Republican-controlled body to reduce incarceration levels in local jails. What interested Grits most, though was the remarkable effect their 2011 legislation had on local jail incarceration levels. According to a Louisville TV report:
Jail administrators in Kentucky had urged passage of the 2011 law to cut down on overcrowding, and other advocates said it's a waste of tax dollars to put misdemeanor offenders in jail.

"If they pass this, it's going to reload up the jail with 'minor offense' people who could be out working," said Louisville attorney Paul Gold, adding that it could again lead to people being jailed for small amounts of marijuana. "I don’t see the necessity of this legislation."

Metro Corrections Director Mark Bolton said in an email that the proposed change has the "potential to result in more jail bookings and increase in the average daily population of the jail."

The number of jail bookings in 2010 was 45,161 and the average daily population of the jail was 1,930 inmates, 137 over capacity, Bolton said.

"By contrast, we began to see a steady reduction over the next four years, and by 2014, there were 36,740 bookings with an average daily population of 1,851 (only 58 over capacity)," Bolton wrote.
Thinking through this anecdote for a moment from Texas' vantage point: In 2007, then-Corrections Committee Chairman and prominent DFW-area Republican Jerry Madden passed legislation which similarly made arrests optional for low-level pot possession and a handful of other Class B misdemeanors. In Texas, police can also arrest people for Class C misdemeanors, even though the maximum penalty involves no incarceration but only a fine.

The 2011 bill in Kentucky apparently took a statute similar to Madden's and changed the "may" to a "shall," with the result that local jail bookings in Louisville declined by 18.6 percent. A half-decade later, law enforcement interests have come back to persuade the Kentucky legislature to reverse course. From the same source:
The law currently says police "shall" issue a citation instead of making an arrest for dozens of misdemeanors, as long as officers believe the suspect is not a danger to himself or others and will appear in court to answer the charge. House Bill 250 would change the language to "may" issue a citation.
Certainly Grits hopes this revanchist push by Kentucky Democrats will fail. But seeing this report that Kentucky's Republican-controlled legislature reduced jail populations so significantly with this move makes me think the Texas Lege could likewise reduce local taxpayers' burden from jail costs with a similar change here.

Texas Lege should decarcerate, close prisons to cut TDCJ budget

The Texas Department of Criminal Justice released its legislative appropriations request last week, but declined to identify four percent of its budget to cut as demanded by legislative leadership, reported the Texas Tribune.

Instead, they suggested that, if pressed, they could cut $28 million from their $6.7 billion biennial budget by closing one small state jail in Houston. New executive director Brian Collier told the Houston Chronicle that cutting further would require "reductions in convict health care, meals, as well as prison and parole operations." The Chron helpfully broached the question of whether other units might make the closure list:
Agency spokesman Jason Clark said the state's prisons currently are operating about 2 percent below capacity, with another 2,500 beds mothballed because of a chronic shortage of guards.

Three years ago, the agency closed its first prison in more than a century - the Central Unit in Sugar Land - and since has closed two others.
Perhaps some of those facilities with mothballed beds should be shuttered altogether, if they can't be safely staffed and the beds are laying fallow, anyway.

Senate Criminal Justice Committee Chairman John Whitmire suggested several units in Fort Bend County might be prime targets for closure:
"Yes, there are discussions going on about closing more units. I've been in on them," he said Thursday. "The state has a number of old, inefficient and remote units that we should consider merging or closing to spend taxpayer dollars more efficiently."

On Whitmire's list: Relocate the faith-based transition program at the aged Vance Unit in Richmond to another unit and sell the valuable site for housing development that surrounds it. He also would like to see the state combine or close three Jester Unit prisons nearby and move those inmates to five other state prisons.

Whitmire said he plans to push for additional closures as an alternative to cutting guards and compromising health care, if the mandated 4-percent cut is not rescinded.
That's exactly the right path: In 2011, TDCJ suggested similar cuts to services, particularly to health care, which ultimately had to be rescinded. That episode should have demonstrated to legislators that, in order to make cuts in TDCJ's massive budget - which they boosted just two years ago by $458 million to cover current incarceration levels - they must reduce the number of inmates the agency incarcerates.

There's another batch of prisons Whitmire and Co. should consider for closure next year if closing those prisons in Fort Bend can't be quickly or easily accomplished: Four privately operated state jails have their contracts end in August 2017. Unlike state operated facilities, which take time to shutter and close, the state could rid itself of those expenses immediately upon the commencement of the new fiscal year in September 2018. News that the feds will stop using private prisons perhaps will inspire legislators and the agency to take a second look at this option. That's the quickest, easiest way to reduce capacity and spending.

Most importantly, to sustain and advance this prison-closure trend the Texas Lege must continue along the path to decarceration begun last session by increasing property theft thresholds, a move which has pushed down incarceration levels with no discernible harm to public safety. Reducing penalties for low-level drug possession and other offenses overcharged as felonies arguably is the next step down that path. And Grits would like to see renewed efforts to reduce technical revocations of probationers to prison, a trend which continues to drive high incarceration levels.

Do that and, by 2019, Texas could likely close not just the state jail in Houston and the four private units Grits identified, but also the facilities in Fort Bend mentioned by Sen. Whitmire. Closures primarily make sense coupled with amplified legislative efforts toward broader decarceration, or else they'll turn out to be a short-term fix.

See related Grits posts:

Saturday, August 20, 2016

Threats of death coerced false testimony in Waco innocence case

A judge in Waco recommended granting a habeas corpus writ on "actual innocence" grounds in a case which demonstrates the risks of false convictions from plea bargaining and informant practices. A report from Tommy Witherspoon at the Waco Tribune Herald (Aug. 20) began:
Convicted murderer Richard Bryan Kussmaul and the three co-defendants who testified against him 22 years ago are “actually innocent,” and Kussmaul should be freed from prison, a retired state district judge ruled Friday.
Judge George Allen, who presided over Kussmaul’s 1994 capital murder trial, recommended that the Texas Court of Criminal Appeals grant applications for writs of habeas corpus for Kussmaul, James Edward Long, Michael Dewayne Shelton and James Wayne Pitts Jr.
Kussmaul is serving a life prison term in the 1992 shooting deaths of Leslie Murphy, 17, and Stephen Neighbors, 14, in a mobile home near Moody.

At a hearing in July, Long, Shelton and Pitts all testified that they gave false testimony against Kussmaul at his trial because a prosecutor promised them probation and a deputy coerced their confessions by threatening them with the death penalty.

The judge’s findings will be forwarded to the Texas Court of Criminal Appeals, which will make the final decision.

Allen wrote in his four-page opinion that newly discovered DNA evidence that was not available at the time “constitutes clear and convincing evidence that no reasonable juror would have found (the defendants) guilty beyond a reasonable doubt had the new evidence been available at trial.”
Without the DNA, nobody would believe these recantations. With it, and 20/20 hindsight, the grim reality which confronted these four defendants appears as obvious as it does stark. The prosecutor* A Sheriff's detective implicitly or explicitly told these guys: Accuse your friend or we'll kill you. The prosecutor is seeking the death penalty, they'll stick a needle in your arm, and you'll be dead. Or you can bear false witness against your friend and live. You choose. And three of them took the bait. Should we be surprised?

Does anyone imagine that any of the innocence reforms installed in Texas so far would prevent that from happening? Not in a million years. The same incentives and practices which caused these false convictions play out all the time in courthouses across Texas. From a game-theory perspective, the three men made a rational choice, if perhaps a dishonorable one. At the time, this was not a situation in which the truth will set you free.

Texas has done a good job making sure false convictions can be rectified by DNA testing when biological evidence from old cases is available and probative. But there's a lot more to do to prevent false convictions on the front end, particularly with regard to informant incentives and the plea bargain system.

*CORRECTION: McLennan County Sheriff’s Detective Roy Davis, not a prosecutor, threatened the men with the death penalty. However, the prosecutor in the case, unnamed in the story, agreed to the deals the judge criticized on the grounds that they "created a powerful incentive for each of them to falsely admit culpability," while "material inconsistencies between and among [them] ... call into doubt the veracity of those prior incriminating statements."

Friday, August 19, 2016

A judge's writing "tinged with despair"

This is how it feels to serve as the resident voice of reason on the Texas Court of Criminal Appeals:

Debtors prisons and bail reform: TX Judicial Council taking up heady issues

The Texas Judicial Council this morning approved changes to court collections programs aimed at reducing incarceration of low-income Texans due to nonpayment of fines, but not without a fair amount of controversy and substantial changes to the original version of the rules. Buzzfeed published a great story earlier this week describing the backlash of the bureaucrats in response to them.

Texas Supreme Court Chief Justice Nathan Hecht declared that the rules were conceived in response to the USDOJ report on Ferguson, MO last fall. The national Conference of Chief Justices and Conference of State Court Administrators formed national task force on the topic, which includes Justice Hecht. The conservative American Legislative Exchange Council, he approvingly noted, recently adopted a resolution encouraging reform in these areas. And he found it remarkable that support for the changes came from ideologically diverse groups from the ACLU and the Austin City Council to the Texas Public Policy Foundation, conservative state Sen. Don Huffines, and Texas Association of Business CEO Bill Hammond (who just announced he'd retire at the end of the year), all of whom favor reducing the burden from fines and fees on indigent defendants.

Here are the comments on the rules and here is a document articulating how the Office Of Court Administration changed them in response. Grits has not closely enough vetted the changes to judge exactly how watered down the final rules are compared to the original version. (I emailed our friends at the Texas Fair Defense Project for an assessment and will update this post when I hear back.) But judging from the continued pushback, it appears they've retained some teeth. The chief justice pushed through the changes despite naysayers in the peanut gallery, not to mention a few "no" votes on the council who wanted to re-publish the amended rules. They take effect January 1st, 2017, though some courts have pledged to adopt them as soon as Sept. 1st in order to help the OCA evaluate how they work in the field.

Related: From Texas Monthly, "Texas has a debtors prison problem." Good article, which mentions a related analysis from Houston of which Grits was unaware:
In May, a committee organized by Mayor Sylvester Turner released a damning report that found that the city uses its municipal court “as a profit center.” Of the court’s 169,000 convictions in 2014, only 2,800 were given the option to pay their fines through community service, and only six cases saw their fines waived. As the report notes, nearly 25 percent of Houston’s population is below the poverty line, and they estimated that “at least 30,000 people” should have been given the option of community service. “Attempting to finance the city budget on the backs of the poor criminalizes poverty and destabilizes lives, ultimately doing more harm than good,” the report found.
Pretrial/bail recommendations coming
The Judicial Council also heard from its Criminal Justice Committee which will make recommendations in October related to the bial system. Twenty five years ago, opined the chair, 32 percent of jail population were presumed-innocent people being held pretrial. Today that number is 75 percent, he said. According to the Texas Commission on Jail Standards, the average cost per day to house these inmates is $60.12. At that rate, it costs more than  $1 billion per year for pretrial incarceration, or around $2.5 million per day. He called the situation a "perfect storm ready for change."

Researchers from A&M are doing a report on Tarrant and Travis Counties, he said, and their findings so far corroborate the idea that far fewer people could be jailed pretrial without harming public safety..

In October, the committee will release recommendations suggesting that the Legislature require misdemeanor defendants to be assessed with valid risk assessment instrument prior to appearing before a magistrate. There should be a presumption through statute for pretrial release on personal bond, leaving judges with discretion to decide the evidence before them rebuts that presumption. They hope the new system would allow release of "high numbers of people who have little risk of reoffending and little risk of flight." The Lege should pony up to fund supervision for pretrial defendants and magistrate training, he opined. The Court of Criminal Appeals would create rules to implement these processes.

Related: From the Houston Chronicle, "Bail system is unjust and undermines public safety."

Judicial Council Lege agenda
The council reviewed areas where they intend to make legislative recommendations next year, though nothing has yet been finalized. Here's the list of resolutions they're considering.

Dallas eliminates special protections for officers after police shootings

Great news out of Big D, where police accountability activists scored a major victory this week. Reported the Dallas News (Aug. 18):
The Dallas Police Department has discontinued its policy of waiting 72 hours to interview officers involved in police shootings.

The announcement came late Thursday as part of the department's response to a 14-point list of demands made by the Next Generation Action Network. The group has railed against police brutality nationwide and called locally for more community oversight in officer-involved shootings.

"Effective immediately, every officer will be provided the same legal rights as any other citizen who is the subject of a criminal investigation," the department said in a statement. ...

The department's policy had given officers 72 hours before they were asked to make a formal statement to detectives in the special investigations unit, which studies all assaults and shootings involving police officers.
Regular readers may recall Grits blasted that policy when DPD enacted it in 2013, so this is welcome news. Grits can't immediately tell from the coverage if the change applies to all misconduct allegations or only shootings, but the former would be preferable to the latter.

The question immediately arises: Might other Texas jurisdictions follow suit? The answer is maybe, it's complicated.

Dallas Chief David Brown could do this unilaterally because  their negotiators did a better job retaining power over the disciplinary process in their "meet and confer" (read: collective bargaining) agreement with the local union than, say, their counterparts in Austin or Houston.

The Dallas agreement (pdf, p. 7-8) does not dictate that agency's disciplinary process the way Austin's does. Instead, it specifies that, "the City shall retain the sole, exclusive and vested right, prerogative, power and authority to ... establish, eliminate, modify, review, and enforce rules and standards governing job performance, personal conduct and appearance, uniforms and equipment, safety, training, education, attendance, discipline, and efficiency ... [and] the right to establish, abolish or modify processes and procedures for investigating and reviewing Officer conduct and complaints relating to that conduct."

Under their situation, the chief can make that decision unilaterally.

By contrast, Austin's meet and confer agreement (pdf) is much more detailed and dictates every detail of the disciplinary process. When Austin PD interrogates cops over misconduct, they receive an array of special protections which don't apply to average citizens.

For example, not less than 48 hours before an Austin police officer must give a statement to investigators about alleged misconduct, he or she must be provided with "a copy of the complaint(s)," as well as any additional allegations discovered by investigators which are not included in a complaint. The officer and their attorney may also "review the portions of any document(s) in which it is alleged that the Officer provided false, incomplete, inconsistent, or conflicting information, or in which it is alleged that the Officer omitted information in violation of any law or Department policy," as well as "any report, supplement use of force report, or other statement recorded or written by the Officer, setting forth particulars or facts regarding the operative conduct which is the subject of the allegation(s). In addition, officers are also "provided an opportunity to review any videotape, photograph or other recording of the operative conduct or alleged injuries, if any, which is the subject of the allegations if such a recording is within the possession or control of the Department."

In Houston, by contrast, their 48-hour rule is enshrined in HPD's stand-alone section of the state civil service code. There it dictates that officers receive notice 48 hours before being subjected to interrogation under the statute. But their meet and confer agreement goes further, letting officers see copies "of the statement/affidavit/complaint that serves as the basis for the complaint by the complainant at the time the 48 hour notice is given," as well as any "written statements or affidavits received or gathered by the investigative authority from witnesses, officers or supervisors obtained during the investigation before the officer's interrogation."

Imagine these same protections being applied to regular criminal defendants. Basically, the stuff the Michael Morton Act says most defendants get to see after they're formally charged, Austin and Houston police officers get to see before they're ever even questioned by investigators. As a former GOP DA candidate in Dallas, Toby Shook, said when their policy was enacted, "Police detectives often get very damaging statements from suspects shortly after the incident. At trial if the defendant’s story changes the prosecutor quickly argues to the jury that the defendant has changed his story and is lying." Police officers, however, are held to a far lesser standard and those sort of "gotcha" tactics don't apply to them.

Bottom line: the new Dallas rule is a good one but some other jurisdictions may be prevented from implementing something similar without revisiting the subject in their meet and confer contracts. Chief Brown could accomplish this quickly because past collective bargaining agreements did not tie his hands on officer discipline. Other departments which weren't as wise must wait until their contracts expire before it's possible to follow suit. When that happens, they should seek contract language closer to what's in the Dallas agreement.

RELATED: On the limits of enacting police reform through union contracts.

Tuesday, August 16, 2016

On the limits of enacting police reform through union contracts

San Antonio Mayor Ivy Taylor went to the meet-and-confer negotiating table this spring with seven requests related to police accountability, reported the Express-News (8/15). A city council member labeled two of the reforms "critical."
A police chief “needs to be able to rely on prior discipline to determine punishment,” the first request read, “so it may be presented to show progressive discipline in arbitrations.”

When an officer appeals his or her punishment, it triggers an arbitration process that proceeds like a trial. And arbitrators often reduce punishments; in the past seven years, they overturned or reduced five of 13 disciplinary rulings on appeal. All five were terminations, according to city officials.

The current contract limits how far back a police chief can invoke prior misconduct in arbitration: 10 years for drug and alcohol-related issues, five years for acts of “intentional violence” and just two years for all other misconduct.

“An entire officer’s discipline record should be allowable,” the request concluded.

The second reform: “Remove Requirement to Reduce Agreed Short Suspensions to Reprimands.”

Currently, suspensions of three days or less are automatically reduced to written reprimands after two years — a mechanism that [one city council member] says has amounted to “altering” police records.

“Suspensions need to remain on the record to accurately report an officer’s history and show progressive discipline in arbitration,” the city’s request to the union stated.
But the union "flatly refused to entertain the requests for reform" and so none of them got in.

Police union contracts have been targeted by the Black Lives Matter movement as a potential vehicle for improved accountability. However, this episode shows the limits of attempting to effect police reform in Texas through meet-and-confer negotiations, which in practice give the local police union veto power over any and all changes.

That said, there is more than one way to skin a cat. Austin had similarly witnessed officers frequently having their terminations overturned by an arbitrator until the department finally adopted a change for which local advocates had pushed for more than a decade: Creation of a disciplinary matrix in the APD policy manual which specifies punishment ranges for significant misconduct.

Arbitrators frequently overturn police officers' firings on the grounds that other, similarly situated officers were not punished in the same fashion. But a disciplinary matrix creates a range of prescribed punishments which arbitrators may presume to be reasonable.

The ability to make firings stick is a key part of confronting what's been called "a departmental culture which protects its own and is unwelcoming of supervision" in San Antonio. Keeping police misconduct on the record when the department makes personnel and promotion decisions helps keep bad apples from remaining on the force or even entering management just because they've hung around for a long time.

These are modest reforms at best but even they were too much for the union and the city didn't go to the mat on the issue the way they did on the Evergreen Clause. Certainly there was no effort to tie wage and benefit hikes to the union's acceptance of a (slightly) stronger disciplinary process.

It's possible the Mayor could have gotten more if there was significant community organizing backing her effort. As things stand, the public didn't know about her police accountability proposals until after they'd been rejected. Rallying the public in support of her proposals would have boosted the likelihood of success. Even so, I'm glad to see her making an effort when no one's looking. If she's serious about the topic, she'll find other opportunities to address it going forward.

Monday, August 15, 2016

'Distortion of Justice: How the inability to pay bail affects case outcomes'

People who can't make bail are 13% more likely to be convicted, with the difference made up of people pleading guilty who otherwise would have been acquitted or had charges dropped, according to an article posted on SSRN last month with the above title by Megan Stevenson of Penn law school. Here's the abstract:
Instrumenting for detention status with the bail-setting propensities of rotating magistrates I find that pretrial detention leads to a 13% increase in the likelihood of being convicted, an effect explained by an increase in guilty pleas among defendants who otherwise would have been acquitted or had their charges dropped. On average, those detained will be liable for $128 more in court fees and will receive incarceration sentences that are almost five months longer. Effects can be seen in both misdemeanor and felony cases, across age and race, and appear particularly large for first or second time arrestees. Case types where evidence tends to be weaker also show pronounced effects: a 30% increase in pleading guilty and an additional 18 months in the incarceration sentence. While previous research has shown correlations between pretrial detention and unfavorable case outcomes, this paper is the first to use a quasi-experimental research design to show that the relationship is causal.

Sunday, August 14, 2016

Best Practices: Police training, policies should prioritize deescalation, get rid of the '21-foot rule'

This morning, Grits took some time to examine more closely the Police Executive Research Forum's 30 guiding principles on police use of force, released this spring. The goal of the document was to "make policing safer for officers and the public they serve—and, in the process, restore public trust and advance as a profession." Here are some salient highlights.

First, "There is a lack of complete and reliable national data on police use of force," the report noted, and until the feds improve national data, private data from sources like the Washington Post and the Guardian are the best we've got. They advocated data improvements along the lines recently suggested by the USDOJ. (I'd be interested in reading any comments PERF submits in response to the recent Federal Register announcement.)

Notably, PERF guidelines don not apply to cases where "the person who died was shooting at officers or someone else" or where "the person was pointing a gun," which according to the Washington Post accounted for 59 percent of fatal police shootings in 2015. Rather, they're focused on reducing deaths in very specific situations:
Several Hundred Officer-Involved Shootings Last Year
Did Not Involve Subjects with Firearms

Regarding non-firearm encounters, the Washington Post data indicate the following:

• In approximately 25 percent of the 990 fatal officer-involved shootings in 2015, the subject displayed signs of mental illness.
• In 16 percent of the cases, the subject was armed with a knife.
• In 9 percent, the subject was unarmed.
• In 5 percent, the subject was “armed” with a vehicle.

It is in these types of cases, representing as many as one-third of the annual total of fatal officer-involved shootings, that leading police executives believe there is significant potential for de-escalation and resolving encounters by means other than the use of deadly force.
Broadly, PERF recommended "discontinuing outdated concepts, such as use-of-force continuums, the so-called “21-foot rule,” and the idea that police must “draw a line in the sand” and resolve all situations as quickly as possible." (bold in original)

Animation by Grits for Breakfast
The repudiation of the 21-foot rule is a particularly big deal. Many, many shootings over the years have been justified by this particular bit of misinformation, with officers pretending that, once a suspect was within that 21-foot range, they had no choice but to shoot. Another recent PERF report on police training practices addressed that misconception directly:
Police  chiefs at PERF’s  May 7 conference said that  the 21-foot rule has sometimes been used wrongly to suggest that if a suspect moves to close the  distance  between  himself and the officer, the officer can shoot the  suspect and cite the 21-foot rule to justify the use of deadly force. This is the wrong approach, they told us at our meeting. The  21-foot rule should never be seen as “a green light to use deadly force” or a “kill zone.” 

Rather, officers should be given broader training in sound decision-making, de-escalation strategies, and tactics for creating time and distance, so they can better manage the incident without needing force.
The report cited examples from Northern Ireland regarding alternative ways to deal with a knife-wielding suspect besides shooting them:
Police Service of Northern Ireland Sergeant Dave McNally:
Our Officers Are Seldom Required To Use Firearms Because They Have Other Options

It’s a consequence of the terrorist threat that our police officers are all armed with a handgun, which isn’t the case in Scotland, England, and Wales. Our officers are armed for their protection, but there are many, many circumstances that routine officers respond to—domestic disturbances, robberies, burglaries—where they are not required to use their firearms because they have other options available to them.

I can’t think of an example where a police officer in Northern Ireland has had to use live rounds against an individual with a knife or a bat. There are numerous calls to those individuals that are dealt with daily by routine officers, armed only with a handgun for personal protection. There are numerous calls on a weekly basis. I can’t think of an example where officers have had to open fire.

Friday, August 12, 2016

Feds will begin closer tracking of deaths in police custody

Good news: The DOJ plans to begin comprehensively tracking shootings by local police. See their notice in the Federal Register. Find explanatory coverage here:
Amanda Woog, who recently released her curated database of Texas deaths in custody since 2005,  spoke with Texas Public Radio about the development. Notably, Texas' new reporting requirement on police shootings helpfully includes non-fatal incidents, so the data she's gathering going forward is broader, even, than what the Justice Department has suggested.


Thursday, August 11, 2016

TDCJ should suggest letting private prison contracts expire to save money

Grits and others have suggested that Texas could close more prison units to meet budget-cut goals set by the legislative leadership, and here's another datapoint supporting that suggestion from TDCJ's "high value data set" (xls), which Grits mentioned in a footnote yesterday.

According to that quarterly data source, there were 146,968 inmates locked up in TDCJ as of June, down 3,816 from the end of FY 13. That's plenty for TDCJ to shutter at least one or two units. And the easiest method would be to let a private-prison contract or two expire.

There are four state jails whose contracts expire Aug. 31, 2017 which conceivably could be targeted for closure if current incarceration levels continue to decline. All four are operated by Corrections Corporation of America:
  • Bartlett State Jail (1,049 beds)
  • Bradshaw State Jail (1,980 beds)
  • Lindsey State Jail (1,031 beds)
  • Willacy State Jail (1,069 beds)
Ending all of these contracts becomes an especially enticing option if the Lege were to ratchet down drug penalties a notch, making low-level drug possession (less than a gram, or ideally .02-4 grams*), a Class A misdemeanor and relieving thousands of drug-possession offenders from the yoke of state-jail imprisonment and long-term felony status. State Rep. Senfronia Thompson suggested that change in 2015, and the Legislative Budget Board estimated that, "In fiscal year 2014, 7,293 people [convicted of possession of less than a gram of a controlled substance] were admitted to state correctional facilities and 7,682 were placed on felony community supervision." 

That would be a big enough reduction to let all these contracts expire. LBB estimated such a change would save $105 million in the first two years and $314.4 million over five years. The Lege could share some of the savings to bolster local probation departments - who would henceforth be supervising both more probationers and  more needy ones - while still logging substantial near-term savings.

TDCJ has been asked to cut a quarter-billion dollars, so $105 million over two years is just 40% of that. It's significant, but not enough to cover the budget cutting goals laid out for the agency by the state leadership. It'd be a good faith start, though, and well worth the effort.

When Texas last faced a major budget crunch in 2011, TDCJ chickened out and pretended they could cut prisoner healthcare, food, and other core costs that really weren't viable solutions. Former executive director Brad Livingston didn't have the guts to tell the Lege, "the only way you can cut nine figures in our budget is to incarcerate fewer people." And so the politicians ended up cutting the wrong things. And they still imposed prison closures on the agency, only against its will instead of with its cooperation. (I seriously doubt the Central Unit would have been high on the agency's closure list, for a variety of historical and logistical reasons, for example. But TDCJ removed itself from that debate by refusing to contemplate prison closures, therefore its opinions were excluded from many of those conversations.)

This time, let's hope TDCJ brass tells the Legislature the hard truth: You can't reduce spending by those amounts without reducing incarceration. Then they should offer realistic suggestions that would do the trick. The union would support them. And there are several units the agency could close which have been nothing but headaches for TDCJ management (with the Connally unit perhaps topping the list).

In 2011, TDCJ's appropriations request adamantly refused to suggest viable solutions and thrust the problems back on legislators. This time, they should learn from their mistakes, cooperate with legislators and help them govern by giving them a realistic path to achieving sustainable cuts, not a guided tour through some Potemkin village that dissipates when supplemental-appropriations time comes around at the beginning of the next session.

* Making .02-4 grams a Class A misdemeanor, going a little further than Chairwoman Thompson, would be Grits' preference for changing the law in 2017. Current Texas law makes possession of less than a gram a state jail felony and 1-4 grams a third-degree felony. But up to four grams is still user-level possession and most people convicted in that range are addicts, not dealers. The amount of drugs possessed by a user when arrested isn't a reasonable way to distinguish punishment between those two cohorts of defendants. And going this route would save quite a bit more money, particularly in the out years. Meanwhile, when there's less than .02 grams of  evidence (trace cases), agencies should be forbidden from seeking charges because, after the state does its labwork, there's not enough left for the defense to re-test under Sixth Amendment "confrontation" requirements.

Wednesday, August 10, 2016

The new phone books TDCJ statistical reports are here

Grits reacts every year to the release of TDCJ's annual statistical report with more or less the same level of enthusiasm with which Steve Martin's character greeted the issuance of new phone books in The Jerk. Finally, the report for FY 2015 has been released. Check it out here

Notably, the report recorded TDCJ housing 148,146 prisoners as of Aug. 31, 2015, down more than 2,000 from the prior year and down 8,000 since 2011, when the inmate population totaled 156,522. (See reports from prior years here - scroll down.) That's low enough to close at least one more prison unit to help with budget savings.*

The annual statistical report gives data on prisons, state jails, probation, and parole for FY 2015, which ended Aug. 31 of last year. So I fail to understand why it takes nearly 12 months to produce this publication. Doing it that way means policy makers must rely on information that's at-a-minimum one-year old, when really TDCJ tracks all these data more or less in real time.

Now that TDCJ is under new management, they should work on getting this document out much quicker in the future. There's no reason a snapshot of data ending August 31 couldn't be released before the new year instead of 11-12 months down the line.

Related: See also FY 2015 data on the Texas judiciary, which the Office of Court Administration released earlier this year. Gathering data from every judge in Texas is MUCH more difficult than a single corrections agency compiling its own information on prisoners' comings and goings. If OCA  can produce the annual judicial stats more quickly, there's no reason we should have to wait this long for TDCJ to release its numbers.

* N.b., the inmate population has continued to decline since then. According to TDCJ's "high value data set" (xls), which is a master-list of prisoners updated quarterly, as of this writing (8/10) there are 146,968 inmates locked up in TDCJ.

Willful blindness at internal affairs and why Austin PD hasn't embraced community policing

Austin PD last week released a massive report by the Matrix consulting group (uploaded here) evaluating the department's staffing in terms of its focus on community policing. (See coverage from the Statesman.)  This morning, Grits took a moment to read through portions of the document. Here are some items which jumped out.

First, Grits found it striking that APD's Internal Affairs unit seemingly intentionally keeps its records in such a way that it cannot perform basic data analysis.
In 2014, 1,116 people contacted the [Office of Police Monitor] to file a complaint. Of those, 582 were actually filed as complaints. The rest were either supervisor referrals (305) or not deemed sufficient to investigate. These statistics are compiled by the OPM. Internal Affairs logs all investigations, but does not have the capability of data retrieval based on type of complaint. The OPM does keep records on complaints filed by racial/ethnic groups while APD Internal Affairs does not because the software being utilized does not allow retrieval of data based on specific queries. As a result, if data is required, a hand search of files must be accomplished.
The consultant framed this as a need to "evaluate the software" IAD uses, but that's the least of the problem. They should also evaluate managers and commanders over them who felt they could effectively oversee the division without basic data-retrieval systems. Sometimes information-gap failures occur because of inadequate software, and sometimes they occur because to generate data would enable uncomfortable analyses to be performed and questions to be asked. Reading between the lines, that's what's been going on at APD internal affairs.

In addition, since the 1990s APD has had a much-touted "early warning system" that's supposed to flag potentially problematic officers for review by Internal Affairs. But we learn from the consultant that it mainly focused on triggers "such as use of sick time, use of force, and internal affairs complaints." That's not an "early warning" system at all! That's post-hoc notification after something has gone wrong. "Early warning" implies that you're trying to identify problems before they arise.

Probably because it was apparent Matrix would make some recommendations on this, now the early warning trigger "is being changed to include the number of drunk arrests, assault on a police officer arrests, and resisting arrests." It would behoove the agency to be a lot more aggressive and sophisticated about their early-warning mechanism. The version used until now sounds simplistic and ham-handed, bordering on worthless if the goal is to reduce officer misconduct or improve community relations.

The main focus of the report was to evaluate community policing in the department. But a cynic might be forgiven for imagining it was created more to justify additional, unpopular and expensive increases in sworn staffing, despite the gaping holes in APD's non-sworn ranks which desperately need filling. (The scope of the consultant's work did not evaluate those functions or take APD's broader management responsibilities into account beyond patrol.)

As noted in the report's introduction, "Full implementation of [the] recommendations would require significant investment ... as a result of adding more officers." And the main recommendation was to hire far more additional street cops than the council's draft budget had envisioned. The consultant recommended adding more than 100 new sworn officers in the next budget. The city manager's version would add 12, plus 21 new civilian positions.

Beyond staffing, the consultant's top findings: "'Community Policing' is not the coherent philosophy and strategy in the Department that it needs to be," and "internal support for community policing in the Department" presently is not "consistent with these strategies" from the mission statement on down. (Breaion King could have told you that!) Isolated internal efforts toward a community policing philosophy are "not supported by strong policies, human resource and management strategies and leadership," they found.

That part about policies and management not supporting community policing is particularly evident in the department's use of force policy, which encourages escalation instead of deescalation. If policies don't reflect community policing philosophies then neither will training, which invariably will be designed to implement the policy. One of the recommendations notes that APD trainers and academy personnel need train-the-trainer training on community policing, so they seemingly have little-to-no in-house expertise on the topic at all. The consultant is describing a management failure, not failings by cops on the beat.

The consultant could see no way to address this situation but to hire more officers. Supposedly because of understaffing, they found that "Patrol resources have limited opportunities to be more proactive – proactivity levels are at an overall level of approximately 22%, which is less than the typical 35% ‐ 45% considered an effective level of patrol service." That number varies by district - downtown, for example, proactivity rates run closer to 70 percent. In many residential areas, by contrast, police are mostly responding to calls.

Not mentioned in the report is the fact that APD patrol spends about 12 percent of its time responding to residential burglar alarms - the most unproductive part of the officers' jobs besides bathroom breaks. The city could free up officer resources by eliminating those corporate subsidies instead of hiring more sworn staff, but that more efficient, less expensive possibility was never broached.

Buried deep in the 239-page report, though, where no one who only read the recommendations would ever see it, was an intriguing observation which deserves to be explored more fully:
Overall, at 116.5 minutes  of  workload  per  call  for  service,  the  average  time required to handle incidents is very high in comparison to other agencies. The average backup unit handling time of 57.7 minutes, in particular, is much higher than the typical norm. Combined with a backup rate of  about 1.1 additional responses per call, each call represents a significant amount of time that must be staffed, in addition to resource needs that must be met in order to achieve a targeted level of service. (p. 83)
Why is Austin's  per-call time spent "very high" compared to other departments? Why does APD assign backup on so many more calls than other departments? And why are backup units spending an hour per call when that's not the practice elsewhere? These questions remain unanswered. The consultant noted the issue in passing but failed to suggest strategies to reduce those times or even provide a framework for how to judge them.

If you need more officers for community policing, there are several ways to get them. E.g., the city council could eliminate superfluous officer duties, like responding to residential burglar alarms. The city could move mental health first response out of APD altogether - an idea being promoted by the Dallas-based Meadows Foundation that could save a lot of officer time, reduce the number of use of force incidents, and connect people with services in the community instead of jail.

APD could free up officer time by reducing the number of low-risk calls to which backup is sent, or the excessive time spent per backup call. They could seek out strategies to reduce the "very high" average time spent (nearly two hours) in response to typical service calls. Or they could reduce or eliminate certain types of arrests for which statutes give officers discretion simply to ticket, like for Class C misdemeanors, low-level marijuana possession, and driving without a license. Those strategies would free up many hours of officer time for community policing, but, giving credence to cynics' imaginations, the only solution the consultant could only come up with was 'hire more cops.'

Finally, I thought this recommendation was a clever idea: "Implement a requirement that trainees complete a neighborhood portfolio that analyzes a specific area of the city, which will not only create a useful database for Community Policing activities, but will establish the foundation for partnerships between the community and the Department." That would be an interesting project.

There's lots more in the document but these were a few things which jumped out at Grits upon first glance. Interested readers should check it out for yourselves and record any additional observations  in the comment section.

Tuesday, August 09, 2016

Civil suit may force Reyna recusal on Twin Peaks, and other stories

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

Sunday, August 07, 2016

Survey: What do crime victims want?

A new survey of crime victims published by the Alliance for Safety and Justice included findings that run counter to purported victims-rights positions of the past (which in turn, one realizes in retrospect, have been more frequently articulated by cops and prosecutors than actual victims themselves). For example, reported the Washington Post:
In the survey, 52 percent of victims said that prison makes people more likely to commit crimes again. Only 19 percent said that prison helps rehabilitate people into better citizens. This skepticism of prisons is in line with most social science research, which has generally shown that mass incarceration causes more crime than it prevents, that institutionalizing young offenders makes them more likely to commit crime as adults, and that spending time in prison teaches people how to be better criminals.
According to the survey, one in four people have been victims of crime in the last ten years, with half of those having been victim of violent crime. Crime victims are more likely to be young, poor, and minorities, and once victimized, a person is four times as likely to be victimized again. 

Further, "Six in 10 victims prefer shorter prison sentences and more spending on prevention and rehabilitation to prison sentences that keep people in prison for as long as possible." Notably, "For every victim who prefers the criminal justice system focus on punishment there are two victims who prefer it focus on rehabilitation."

Grits wanted to flag this work for future reference. It contains lots of useful corrections to common misrepresentations by the tuff-on-crime crowd about what's best for victims, their views on punishment, and what they need to be made whole.

Saturday, August 06, 2016

Austin PD data SNAFU, shuttered DNA lab signal management failures

Austin cops, like the guy recently caught on video who hurled a local schoolteacher to the ground, are the highest paid in the state. Every budget cycle, including this one, APD shows up to ask the city council for more money for additional patrol slots. But more than additional patrol officers, APD needs to address glaring shortcomings in its ability to analyze evidence, solve cases, and track data about crime.

For example, the Statesman reported (Aug. 5) on why the city's count of DWI statistics keeps changing. The short answer is that none of their data people are trained statisticians but just folks who answered "yes" when asked if they knew Excel and Filemaker Pro. Even so, counting the raw numbers isn't exactly graduate-school statistics. The correct tally of how many DWI accidents APD responded to a given period is basic information they're supposed to report upstream to other institutional actors. There's no reason at all to think such mistakes are limited to DWI numbers.

Some of the problems relate to systems and record keeping, not analysts' knowledge of math: "the statistics unit fails to take basic precautions to ensure the quality of its work, experts told the Statesman. Two crime statistics experts told the paper that police departments should treat their queries like pieces of evidence, logging and tracking them every step of the way." Those are best practices learned from job-related training, not a college statistics course.

Further, "experts say the crime statistics unit appears short of important experience and subject matter expertise. Just one of the four staffers had extensive experience working with databases and advanced statistical models when she was hired to work there."

These are significant management failures. It's a truism that you can't manage what you can't measure. And Austin PD appears incapable of deriving even the most basic data - DWI arrest accident totals - accurately from its system. It's also a management failure from a budgeting perspective. The city has over-invested in patrol and under-invested in non-sworn support.

Similar issues - undertrained staff in technical positions - pervaded the Austin PD DNA lab, which had to close earlier this year to revamp its systems and figure out how many prior cases they screwed up, some of which could result in innocence claims.. The Texas Tribune last week (July 30) provided an update on the clusterf$%#. Here's their assessment of the situation at the lab:
allegations of DNA miscalculation at the crime lab have been a longstanding issue. The June letter from the commission suggested that since 2010, lab analysts have been using expired mixtures and methods that are not “scientifically valid nor supported” by the forensic science community.

Former Austin Police Department crime lab senior forensic scientist Debra Stephens, who was fired in 2012 after filing a complaint with the Travis County District Attorney's Office alleging that some employees weren't qualified and didn't follow federal regulations, said officials have ignored issues in the lab for years.

“It shows that the whole system is flawed. Some of these [analysts] are not qualified, have no science background and are pretending to do forensic science,” she said. “I really think everyone should follow the federally established protocols. But they’re getting away with it.”

Similar concerns were raised in 2010 by Cicely Hamilton, a former DNA lab employee, who later resigned after filing a complaint about some employees ignoring situations involving the contamination of DNA samples.

Robert Paine, director of the Master's of Forensic Science Program at Texas Tech University, said the city and state might ultimately have to kick in funds to help labs hire staff and meet standards.
These aren't the only two areas where important support work gets de-prioritized, as suggested by the 2014 Grits headline, "Failure to hire sufficient, competent staff hindering burglary clearance rates." APD wastes a lot of resources with little practical benefit on burglary cases, while underfunding crime-scene support and detective slots to actually solve the cases.

Bottom line: Pretty much across the board, Austin PD prioritizes its patrol cops and fails to prioritize or sufficiently invest in technical support for those functions. Some of that's because of the city council kowtowing to the union, and some of it's because the chief hasn't prioritized these functions, either in his budgets nor with the attention of top management. This sort of inept bungling is the result: A data system so flawed they can't tally DWI accidents arrests and a DNA lab shut down in significant part because of unqualified analysts and shoddy systems. What a mess!

Make Grits Philosopher King and I'd free up officer time for community policing by taking away other time-consuming duties. For example, disallowing arrests for non-jailable Class C offenses would save time for everybody involved. The Meadows Foundation in Dallas has been pushing to shift first-response duties on mental health calls from police to specialized, medical-led units with a healthcare, not a law-enforcement focus. Finally, Grits has long advocated for shifting to verified response for residential burglar alarms, requiring alarm companies to confirm there's been a burglary before responding. (The burglary clearance rate for residential alarms approaches zero.) In the near term, new spending should focus on shoring up these types of non-sworn staff functions, which have been neglected for many years.

Grits isn't saying "don't invest in public safety." I'm saying the supposed stewards of Austin's public-safety dollars have invested unwisely. This pattern of hiring lots of street cops, overpaying them, failing to invest in non-sworn support staff, then watching those key functions fail, has begun to feel repetitive and sad. Grits used to think there was some hidden agenda behind the pattern. These days I'm more inclined to suspect that the folks running the show at APD simply don't know what the hell they're doing.

CORRECTION: This article originally said APD did not track DWI arrests, but it was DWI-related accidents which weren't correctly documented. Corrected throughout. Grits regrets the error.

Wednesday, August 03, 2016

Pondering potent prison cuts thanks to oil revenue decline

The Texas Tribune quoted your correspondent in a story today titled, "Prison system ponders $250 million in budget cuts." Decent article, but he failed to mention another category of prison units which may be considered for closure: Those in rural areas where staffing rates remain too low to safely operate the prison - e.g., the Connally unit, which also has significant water problems, or the unit up in Dalhart which has never been able to remain adequately staffed.

Grits had also suggested private prison units may be easiest to cut because the state can just not renew the contract and savings aren't delayed by the tasks associated with closing the unit, selling off property, etc..

Thanks to the increase in property theft thresholds to adjust for inflation last year, prison populations are already down enough to close one unit. There are identifiable policy changes that could let them close several more with little if any impact on public safety.

See prior, related Grits posts:

Tuesday, August 02, 2016

Harris Sheriff rep blames inmates for preventable, antibiotic-resistant infections in his jail

If you catch an antibiotic-resistant staph infection in the county jail and die, it's your fault for having a weak immune system, opined a Harris County Sheriff spokesman. Or at least that's what you'd take away from this item in the Houston Press, in which Meagan Flynn localized the story of Amanda Woog's new death-in-custody database to focus on deaths at the Harris County Jail. Her article included this remarkable assessment from Sheriff Ron Hickman's spokesman:
Asked about the high number of in-custody deaths in 2015, sheriff's office spokesman Ryan Sullivan said without examining the data closely it would be hard to tell, but he suggested that Harris County's drastic population increase could be a large contributing factor. According to county data, the county's population has grown 30 percent since 2000.

Otherwise, Sullivan said, "I can't account for why more criminals are pulling guns on officers on the street. ...If we look inside the detention center, no policy would ever prevent someone from dying from a natural illness. Inmates arrive here at a lot of various levels of medical condition. A lot of people have weakened immune systems, and they're therefore more susceptible to contracting diseases like MRSA.”
Let's break this down. First, "Harris County's drastic population increase" can't explain the difference. The jail population as of August 2005 was 9,097; in August 2015 it was 9,029. So they were caring for about the same number of people each day; deaths just went up. (The Sheriff's spokesman cites population growth from 2000, it should be mentioned, but Woog's data covers 2005-2015.)

Next, I don't think there's much evidence that "more criminals are pulling guns on officers on the street." While the recent targeted shootings of police officers runs counter to the trend, overall police officers are safer on the job today than they've been in many decades. Further, as NPR reported last fall, "the numbers suggest officers are also facing fewer attacks: The number of assaults on police has also fallen, though not as sharply" as deaths.

The comment that "no policy would ever prevent someone from dying from a natural illness" in the jail is clearly misguided and wrong. Natural illnesses are typically treatable and the jail has a duty to diligently attempt to "prevent someone from dying from a natural illness" while in their care. A Houston Chronicle investigation last year "identified at least 19 cases in which inmates died of illnesses that were either treatable or preventable, or in which delays in care, or staff misconduct, could have played a role in their deaths" since 2009.

To cite a few examples, another Chronicle story from last fall opened thusly: "Kenneth Beckett died in September 2009 of respiratory failure caused by the swine flu, which he appeared to have contracted in the county jail. Records show he and other Harris County inmates who died in jail had flu, sepsis and other treatable infections." What's more, "Other inmates complained of delays or inadequate care prior to their deaths, according to autopsies and family interviews," including one man who "died of peritonitis, an abdominal infection that can be treated with antibiotics." Those may be "natural" illnesses, but nobody should be dying of them in the jail. (Chron reporters have been all over this story.)

The most outlandish comment, though, was this oblivious assessment: "Inmates arrive here at a lot of various levels of medical condition. [Ed note: True enough.] A lot of people have weakened immune systems, and they're therefore more susceptible to contracting diseases like MRSA." Grits finds this self-justifying pablum unconscionable.

Let's be clear: MRSA is a dangerous antibiotic-resistant infection, transmission of which is entirely preventable. If inmates are contracting MRSA in the jail, it's because a) the Sheriff has failed in his management duties to identify and address emerging outbreaks of antibiotic-resistant bacteria, and b) inmates are either lying around their cells with open sores or contracting MRSA in the jail's unsanitary healthcare facilities. Casting animadversions on inmates' "weakened immune systems" misplaces blame and needlessly adds insult to injury.

Remarkably, the Sheriff's spokesman appeared not to understand the ways in which his comments displayed an abrogation of his agency's duty of care. Perhaps federal monitors or the Commission on Jail Standards, if not voters in November, will remind him down the line.