Saturday, February 16, 2019

Why we know so little about the bad cop at the center of the botched Houston drug raid

A couple of weeks ago, Grits raised numerous questions about a drug-raid-gone-bad in Houston that left four officers shot and two homeowners and two of their dogs dead. Police-union leadership blamed police-accountability activists for the episode, and the mayor and city council members backed them up.

Now, it turns out the informant identified in the search warrant may not exist, and the narcotics officer in question has a lengthy disciplinary history, though much of it only documented in closed records that are not part of his official disciplinary file. It's become clear that the officer in question, Gerald Goines, should have been ousted from the force long ago, or at least rotated off the narcotics squad.

Revisiting key questions
To sort through this unqualified mess, let's start with some of the questions Grits raised immediately after the episode. For several of them, we now have answers.

What was the informant's background, and what was their relationship to their detective handler? It turned out the informant did not exist. Relationship to the detective? Imaginary friend.

Where did the informant get the heroin? Officer Steven Bryant retrieved the heroin out of Gerald Goines car, it did not come from the home in question.

Is it plausible that this couple would sell smack to a CI sent to their front door whom they'd never met before? No. This was a fabrication; it did not occur.

I'd asked, "Will the Conviction Integrity Unit at the Harris County District Attorney's Office now review those 10+ cases using this informant in the past?" But now that question shifts to cases by officer Goines and Bryant. (The latter man turned on Goines during questioning, but he was part of the faked-buy bust and was the one who turned planted evidence into the lab for testing.) There is at least one man currently petitioning the Court of Criminal Appeals to be declared actually innocent from one of Goines' past drug stings.

Why were Goines' disciplinary records secret?
Finding the answers to these questions shed a lot more light on the episode, but also raises many more, including the department's policies related to body cameras and over-use of SWAT tactics for routine search warrants. There will be lots of time to delve into those in the coming weeks and months as more information comes out, but here's an interesting one that relates to pending Texas legislation: 

Why were so many of Officer Goines misconduct episodes absent from his personnel file? As you read through the Houston Chronicle story, multiple incidents involving Goines that appeared in the newspaper's archives were not recorded in his official disciplinary history reporters received from the department.

Here's why: Houston is one of about 70 Texas municipalities that have opted into the state's "civil service code" for police and firefighters (Ch. 143 of the Texas Local Government Code). Most cities whose voters opted into it did so in the 1940s and '50s. But thirty years ago, police unions succeeded in making most disciplinary records secret in these "civil service cities." Under Ch. 143.089(g) of the Local Government Code, only information about misconduct that results in a suspension is public, and then only a summary, not the whole file.

That means the episodes documented by the newspaper probably do exist in the department's Internal Affairs files somewhere, but are secret in Houston because of Ch. 143.

By contrast, if the same episode had occurred in Dallas, which never opted into Ch. 143, every jot and tittle of the old investigative files would be public, only excepting narrow issues related to personal privacy like addresses, social security numbers, etc..

This is a huge carve-out: Texas has more than 2,600 agencies employing licensed peace officers, about 1,800 of which are municipal police departments, plus another 254 county sheriffs. Of those, all but 70 "civil service" departments and all but one sheriff (Harris County) operate with their disciplinary files subject to disclosure under the Texas Public Information Act. (N.b., many cities and counties have some version of "civil service" in their own charters or codes, but here I use the term only to apply to Ch. 143 cities.)

This leads to absurd results. For example, in Fort Worth, the police department is under the civil service code and the Sheriff is not. Let's say an FWPD officer and a Tarrant County Sheriff's deputy engage in the same misconduct - in fact, let's say for illustrative purposes that they committed the misconduct together - and both were given a written reprimand.

At the Sheriff's Office, the entire investigative file regarding the incident would become a public record after the reprimand was handed down. At FWPD, there would be no public record of the episode at all. If the two were suspended, only a summary of the FWPD officer's misconduct would be released, but requestors would not receive remotely the level of detail available down the street at the Sheriff's Office.

This secret file even creates problems for prosecutors. Under Brady v. Maryland and (particularly) the Michael Morton Act, prosecutors are required to disclose impeachment evidence about their witnesses to the defense. So, for example, in Officer Goines case, his misconduct in this case, or past details about the cases described by the Chronicle, might call into question his reliability as a witness. But police departments cannot release that information, even to prosecutors, under Ch. 143, leading people like Barbara Hervey of the Court of Criminal Appeals to support making such records public.

At the Legislature this go-round, Sen. Juan "Chuy" Hinojosa this year has filed SB 433 to make closed records under that 143.089(g) file, referred to colloquially as "the g file" in civil-service parlance. The bill has already been referred to the Criminal Justice Committee. Hinojosa filed the same bill in 2017 after a terrible episode in San Antonio where evidence of innocence was concealed by police from Bexar County prosecutors, allowing a man who'd been beaten by police while handcuffed to plead guilty to assaulting a police officer. 

Now, in the HPD's Gerald Goines, we have another excellent example of how making these records secret undermines justice and accountability.

There will be many more policy issues arising from this episode, Grits is certain, in the coming weeks and months. But this issue of secret-misconduct files is one the Texas Legislature should address this session. SB 433 (Hinojosa) should be passed as soon as possible.

Friday, February 15, 2019

Austin's Chief Manley blames victims for misunderstanding his victim-blaming comments

Austin Police Chief Bryan Manley apologized if rape victims felt he had blamed them in his department's coverup surrounding inflated sexual-assault clearance rates, but insisted he had never done so. Here's what he said.
"If my comments made survivors of sexual assault in my community feel like we were victim-blaming, then I absolutely apologize," Manley said in the interview. "Sitting here today, absolutely, if there are survivors in my community that felt like we were in any way victim-blaming or finger pointing, that's not what we were doing. We were trying to point out the possibilities of why we had a higher exceptional clearance rate."
That's not an apology, that's more victim blaming. Rape survivors didn't feel that he blamed them, they observed it.

Here's the context: Manley's predecessor as APD chief, Art Acevedo (now chief in Houston) replaced the head of Austin's sex crimes unit because she refused to alter clearance-rate data to say cases were closed because victims wouldn't cooperate in situations where that wasn't the case.

The department actually did that to her. It's not a perception. It's documented history.

When, last year, Chief Manley spoke to your correspondent about the topic, he continued to claim that the cases were closed because victims wouldn't cooperate, saying there was nothing his department could do in such circumstances.

This was a false characterization. We now know that for certain. Out of a sample of a hundred, Texas DPS said a third were closed improperly. What was improper about them? Results were miscategorized to say the victims chose not to cooperate when that wasn't true.

Victims who observed 1) the department miscategorize their positions after 2) removing the department head who'd been doing it right, then 3) heard Chief Manley doubling down on the false characterization over and over in the media, will feel blamed. That's because they were blamed, in a cynical attempt at media manipulation.

Think "media manipulation" is too harsh? Last fall, Manley told anyone who would listen that his department couldn't help it if victims wouldn't cooperate. But when it was proven he was wrong - when DPS audit results showed many victims had not refused to cooperate and had been wrongly blamed en masse in APD data - he held onto the information for nearly three weeks before revealing it at a hastily called press conference late afternoon on New Years Eve. That's a tactic to minimize media coverage, but it backfired, demonstrating the Chief's mens rea on the subject.

Manley says he was trying to "point out the possibilities" regarding why "exceptionally cleared" cases were miscategorized. But the only possibilities he focused on, in fact, blamed rape victims. He has refused to countenance the "possibility" that APD brass intentionally, improperly inflated the data and removed the head of the sex-crimes unit when she refused to participate in their malfeasance. But that is, in fact, precisely what happened. Manley's "apology" claiming victims misunderstood him is another insult. He's the one issuing all the misleading statements.

If Manley's not going to actually apologize, he should stay mum. No one needs to hear him claim victims are too dumb to understand what's going on here, when everyone but him can see quite plainly.

See prior, related Grits posts:

Tuesday, February 12, 2019

Blind amputee robbed bank to get healthcare, Austin DNA lab may have caused false convictions, reconsidering extreme sentences, and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused elsewhere:

DNA-mixture errors may have resulted in false convictions
Travis County has identified eleven possible false convictions in which people were convicted based on DNA evidence that later was corrected to make an earlier match "inconclusive." The cases will move forward as habeas corpus writs challenging old convictions. Twelve more cases where at least one evidence-match was changed to "inconclusive" are also under review.

Oddly disconnected tropes promoting prosecutor hiring push
Harris County DA Kim Ogg issued an oddly tone-deaf op ed related to her proposal to add 102 prosecutors to her staff. E.g., she declared, "Every single case represents an offender, a crime victim and a community that wants to be safe." But that's not remotely true. Her office prosecutes lots of cases without victims. Who's the victim in a misdemeanor pot case? Or for driving with an invalid license? She also claimed prosecutor caseloads are "two to four times the American Bar Association’s recommended case load for criminal attorneys." But Keri Blakinger pointed out that that ignores the fact that ABA has explicitly said those caseload standards would be inappropriate to apply to prosecutors. UPDATE: The commissioners court turned down Ogg's prosecutor staffing proposal.

Challenging Kim Ogg
Perhaps not unrelatedly, potential candidates are already licking their chops to run against Ogg in 2020, Murray Newman reported.

H-Town success story helping homeless vets
Combining funding streams to maximize services has helped Houston nearly eradicate homelessness among veterans. How could they replicate the approach for everyone?

Second-look coverage
Legislation dubbed the Second Look Act would allow courts to re-examine long sentences given to juveniles, reported the ubiquitous Keri Blakinger in the Houston Chronicle. "Texas is a harsh outlier" compared to other states regarding when juvenile "lifers" are eligible for parole.

Desperate times call for desperate measures
A blind amputee committed a bank robbery in Austin last year in an attempt to receive much-needed healthcare through the justice system. It worked.

Sober approach
See a recent writeup of Austin's new "sobering center," which is being used as an alternative in low-level arrests. The center treated about 700 clients in its first four months of operation.

Lubbock ME travails
The Lubbock County DA asked the Texas Rangers to investigate the local medical examiner, which is presently staffed with California-based consultants. Details are still secret, but Lubbock has had lots of trouble at its ME's office over the years. Autopsies remain a forensics backwater, in many ways; the quality of that work varies widely.

The case for capping prison sentences at 20 years
At Vox, German Lopez made the case for capping all sentences at 20 years. But from a statistician's perspective, that's going to make less of a difference than one intuitively might suppose. Where it would help a LOT is in limiting rising healthcare costs, which stem disproportionately from older prisoners with long sentences. In response, TDCAA pointed out on Twitter that, at the height of the crime wave in 1991, Texas' Punishment Standards Commission suggested a similar cap for all offenses except murder; the proposal, obviously, was never implemented. Putting a point on this conversation, check out this WSJ op ed from a Colorado judge calling for rethinking of extreme prison sentences, even for violent offenders.

Dashcams better for accountability than bodycams
A study found people are more likely to hold officers accountable if they view an incident on dashcam video instead of images from a bodycam, because seeing the cop in the frame affected their judgment about intentions and guilt.

Sunday, February 10, 2019

Austin Police Chief is the last person who should be giving other chiefs advice on rape-clearance rate data!

Bizarrely, Austin Police Chief Bryan Manley is scheduled to speak to the Major Cities Police Chiefs' Association in Washington D.C. this week to share "hard lessons he's learned" about how police categorize sexual assault cases.

He's not ready. Manley hasn't yet taken responsibility for what happened or been held accountable for his cynical strategy to blame rape victims for APD-management malfeasance. Until he does, he shouldn't be lecturing anybody on this topic. In fact, this might be a good week to cancel his trip and spend the time instead on self-reflection, or perhaps listening to some of the growing cadre of victims upset about how the department handled their cases.

Readers will recall Austin PD ousted the head of the sex crimes unit, Liz Donegan, because she refused to inflate data to make it look like her unit solved more crimes than it did. Under former Chief Art Acevedo, who is now chief in Houston, the department pressured her to claim detectives solved crimes but cases didn't go forward because victims refused to cooperate.

Donegan refused, and was dismissed from her post, replaced by officials who immediately began to change the data to increase "clearance rates" by 50 percent. When the news came out in a national podcast last fall, Manley doubled down, repeatedly insisting to the media, including to this writer, that victims' failure to cooperate was the source of the problem.

But an audit by the Texas Department of Public Safety, released with little notice by Chief Manley at a late-New-Years-Eve press conference, found that a third of cleared cases in the sample analyzed were improperly categorized as "exceptionally cleared" because the victims wouldn't cooperate.

That's significant because Chief Manley describes Donegan's ouster as stemming from a "disagreement" over how to report clearance-rate data, which he says was resolved when she was replaced. So he's granted publicly that she was dismissed over this issue under his predecessor, the only remaining question was whether APD was right to do so?

We learned on New Years Eve that they were not; she was a victim of some seriously shady employment practices. Donegan was wrongfully removed from her position because she wouldn't blame rape victims in her clearance-rate data for her own unit's failures. This can now be stated without fear of contradiction or accusation of libel. It's just true.

Manley wants to pretend the problems all stemmed from clerical errors, hoping to elide any culpability for malfeasance by APD brass. But that ignores the severity of the now-admitted/proven allegations. To repeat: APD dismissed the head of its sex-crimes unit because she wouldn't fake data, then changed the categorization of case results to blame victims for cases not going forward.

The chief has never publicly apologized either to Sgt. Donegan or the wrongly-blamed rape victims for his department's slanders against them, but now is going to lecture other chiefs about the "hard lessons" he's learned? Please!

Only one of two things can explain it: complete obliviousness or excessive chutzpah. Or, I suppose the third possibility is he's receiving really bad PR advice.

See prior, related Grits posts:

Thursday, February 07, 2019

Re-evaluating SWAT, Corruption alleged in UT-Dallas policing courses, Was Dallas PD staffing shortage spoken into existence?, and other stories

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

Corruption alleged in UT-Dallas policing courses
For years, reported the Dallas Morning News, UT-Dallas allowed police officers to enroll for a course, skip all their classes, and walk away with As. Wow. How did anybody ever think this was okay?

Growing critiques of routine use of SWAT tactics
Check out Jessica Pishko's coverage of a dubious Austin SWAT raid. Notably, a study last year found that "Militarization fails to enhance police safety or reduce crime, but may harm police reputation." That observation certainly applies to the recent, botched drug raid in Houston.

Hostility to hiring hundred Harris prosecutors heightened
The Harris County DA's request for 102 new prosecutors is meeting with spirited opposition from local reform groups. Grits opposes such an expansion unless 1) the county approves commensurate, new resources for indigent defense, and 2) the funding pays for caseload reduction, not filing new cases. MORE: Keri Blakinger elaborated on the story in her Twitter feed.

Was Dallas PD staff shortage spoken into existence?
The idea that Dallas needs more police has repeated so often it's now taken as fact, reported the Dallas Observer's Stephen Young, in his excellent lede to a story on DPD officer staffing. The police union in Dallas is touting an officer staffing rate of 3 officers per 1,000 residents, which is FAR higher than most Texas cities. "The national median police staffing level for cities with populations over 500,000 is about 2.1 per 1,000 residents. Houston has 2.22 officers per 1,000 residents; Austin has 1.89; and San Antonio has about 1.4." In Dallas, it's 2.25. There's some evidence that hiring more police officers reduces crime; in fact, it's more effective than a lot of other strategies. But it's also clear that crime has declined decidedly over the last three decades, for a variety of other reasons that have nothing to do with police staffing. We know that because crime continued to go down as police staffing levels stagnated. So any relationship is at best indirect, or crime would have risen as staffing ratios declined.

'How Baylor Happened'
Jessica Luther and Dan Solomon, writing in Deadspin, dissect the Baylor football rape scandals and the permissive culture toward athletes at the university and local law enforcement that tolerated it for too long.

On blaming state government for local decisions
After Grits dissected the Cooke County Judge Jason Brinkley's critique of unfunded mandates in the criminal-justice system, showing that local costs rose because prosecutors had tripled prosecutions during an era of declining crime, the editor of the Gainesville Register asked if I'd submit my comments as an extended letter to the editor. I did and they ran here. You're welcome, Judge Brinkley. ;)

For the reading list
Here are links to a few academic articles on topics this blog covers that I'm posting here to read later:

Wednesday, February 06, 2019

Ignore Austin defense bar: Create Travis County public-defender office

Like petulant children, the Austin criminal defense bar pulled out of a working group created by Travis County to plan for creation of a public-defender office. I've uploaded their letter here.

Continuing the whine-fest they began last fall, ACDLA complains that the county isn't properly considering whether to increase funding for their sorry, failed, embarrassing "managed-assigned counsel" system, in which the local criminal-defense bar was supposed to regulate itself. Feeling snubbed, they're taking their toys and going home.

When Austin's managed-assigned counsel system was created, attentive readers may recall, Grits opposed it and thought the county should have funded a public defender instead. Now, they definitely should.

One of the difficulties criminal-justice reformers face, at least in Texas, is that the criminal-defense bar, for the most part, is not a reform supportive group. Individuals, maybe, but not their organizations. Whereas the state prosecutor association's political stances derive from their interests in court, promoting tough-on-crime policies that empower the government, criminal-defense lawyers typically do NOT promote legislation and polices to benefit their clients. They are trade associations made up mostly of sole proprietorships, and their main interests are commercial interests.

Thus, Texas criminal defense lawyers tend to oppose public defenders at any level. Last session, the biggest organizing effort by the state criminal defense bar was to oppose a tiny public-defender office for capital appeals, even though there's vast evidence the private bar has consistently failed at the job in these complex and highly specialized cases.

Disingenuously, ACDLA claims it's some big problem that a Travis County public-defender office would only take 30 percent of indigent cases. (As though PD offices in other Texas counties don't take on part but not all of indigent caseloads.) They insist a new office should take all cases, or none at all.

That's a strategic position, of course, not their actual view. They oppose creation of a public-defender office of any type. Full stop. But they know that the only proposal on the table is for a PD to take a third of the cases. Ironically, that's mainly in deference to the local criminal-defense bar, who do not deserve it.

Now, the Travis County Commissioners Court should take ACDLA at their word, eliminate appointed counsel entirely, and fully fund a public-defender office, using appointed counsel only for conflicts and other minor roles.

The local defense bar had their chance. They proposed the managed-assigned counsel system in the first place as an alternative to a public-defender proposal, and now everyone but them can see that it failed miserably. The lawyers were better off, but the clients were worse off. And the purpose of indigent-defense services is to represent the interests of the clients, not the lawyers.

Tuesday, February 05, 2019

Hiring more Harris Co. prosecutors would harm the rest of the system

In Houston, liberal advocacy groups, including the Texas Organizing Project, the Texas Civil Rights Project, and the Texas Criminal Justice Coalition, are opposing Harris County District Attorney Kim Ogg's request for 102 additional prosecutor slots. (See initial press coverage.) Ogg says the slots are needed to make dockets move quicker. But Grits would favor expanding the public-defender office by that much LONG before I'd support that many more ADAs.

As it happens, an academic paper several years ago analyzed high prosecutor caseloads at the Harris County DA's Office, but recommended against addressing the issue by unilaterally hiring more prosecutors. Grits thought it relevant to revisit why those authors thought a hire-more-prosecutors approach was a bad idea:
The biggest problem with simply hiring more prosecutors is that doing so would have adverse effects on the rest of the criminal justice system. Increasing the number of prosecutors without a corresponding increase in public defenders would exacerbate the indigent defense problem. Defense lawyers would still be overburdened and would be in a worse position because they would then be facing prosecutors who were better resourced and thus better prepared for trial and less interested in plea bargaining. 
A second objection to simply appropriating money for new prosecutors is that there would be no guarantee that the allotted money would be used to reduce existing caseloads. Prosecutors’ offices may use the added manpower to simply file more charges. At present, overburdened prosecutors’ offices likely decline charges for minor criminal infractions that they simply lack the manpower to prosecute. Increasing the number of prosecutors may thus result in increased prosecution of low-level drug or prostitution cases without any real reduction in the caseloads of existing prosecutors. 
A third objection is that elected district attorneys in large offices (who are primarily administrators and typically do not handle actual cases) may view new staff as an opportunity to enhance their political reputations rather than reduce existing caseloads. At present, most local district attorneys have no choice but to use almost all of their budgets to handle violent crime. A sudden influx of new staff might lead elected prosecutors to create new departments or to allocate new lawyers to pet projects that will make political hay. For example, very few county district attorneys’ offices have the resources to handle long-term, paper-intensive, white-collar crime cases. Yet, in today’s political climate, many elected district attorneys would surely like to have robust white-collar divisions that focus on high profile issues such as mortgage fraud or investment malfeasance. Similarly, as it has become politically popular to “go green,” elected prosecutors might like to expand the size of their environmental divisions. Or district attorneys may simply be animal lovers who want to expand departments that focus on animal cruelty. All of these are worthwhile projects, but directing resources to new areas will do little to reduce the enormous caseloads facing existing prosecutors. (citations omitted)
Instead, the paper suggested tying any increase in prosecutor staffing with increases in indigent defense funding. That makes much more sense in the present political environment, and would reduce some of the unintended consequences that would likely arise from a one-sided arms race between prosecutors and defense.

Guerra-Thompson: Harris County bail compromise still discriminates against poor people

Sandra Guerra Thompson, Director of the Criminal Justice Institute at the University of Houston Law School, is unimpressed with the proposed bail settlement in Harris County, saying it continues to discriminate against the poor. Grits received this email from her this morning and am reprinting it with her permission:
I’ve spent much less time on the bail issue of late, but I have made some inquiries recently about the new Harris County policies.  Much to my chagrin, the county has tweaked the system to avoid constitutional issues, but in other respects the system still stinks.   Here’s my take: 
Under the old system, money bonds were set across the board almost immediately after people were arrested. Those with the money would bond out. The poorest of the poor would be stuck in jail.  These were the people who would be assessed using a risk assessment instrument and go before the magistrate without counsel where the magistrates would almost always completely ignore the recommendations of pretrial services (based on the risk-assessment instrument). 
You know well the problems with the use of money bonds that are imposed without a risk assessment.  Best practices call for universal risk assessment, and, obviously, decisions should be based (at least in part) on these assessments. 
Under the “new and improved” bail policy, money bonds are still set across the board, so the bail bond industry still thrives as usual. The difference is that now the poorest of the poor who are charged with misdemeanors (with a few exceptions for crimes of violence) will fall into a “presumptive personal bond” category. This means they are no longer assessed for risk by pretrial services, and the magistrate will simply release them on personal bonds. 
The result is this:  fewer people than ever are being assessed for risks. Plus, the unfairness persists. People with money are still released much sooner because they have money, usually within 12 hours. And, the poorest will be out within about 48. And why should people with access to money have to pay hundreds of dollars in bondsmen fees when those who don’t come up with the money (under the same bond schedule) will be released on personal bonds? It makes no sense other than to perpetuate the same money bond schedule while appeasing the federal judge.’ 
There is some good news. At the last County Commissioner’s meeting, they voted to bring in some experts, probably from the Pretrial Justice Institute, to assess their system and give advice for improvement. But for now, I remain disappointed.

Monday, February 04, 2019

Texas bail-reform bill to be filed today, and other stories

Here are a few browser-clearing odds and ends to start your week:

Bail-reform news and notes
Bail reform legislation will be unveiled at the Texas capitol this afternoon. Right now, there is bail litigation only in three Texas counties, but change is needed everywhere. The New York Times analyzed a pretrial-release bail-alternative program in NYC that reduced the population of the jail on Rikers Island by 38 percent. Bail reform helps reduce incarceration not just in jails, but in prisons: A study last year found that pretrial release "significantly decreases the probability of conviction" and future incarceration. UPDATE: The bill is SB 628. Here's video from the press conference, at which Sen. John Whitmire, Rep. Andrew Murr, Court of Criminal Appeals Presiding Judge Sharon Keller, and Supreme Court of Texas Chief Justice Nathan Hect all spoke. See coverage from the SA Express News and the Texas Tribune.

Asking "Why?"
An Austin family says there are too many unanswered questions surrounding their son's death after he was shot by police.

Competency restoration and state-hospital budgets
Texas has under-invested in mental-health services for years, relying on the justice system instead. Now, state hospitals need large, new investments to handle the competency-restoration load coming to them from Texas criminal courts. The Legislature should also authorize and fund outpatient competency restoration, as this blog has advocated for years, but they can't get away with failing to invest in state hospitals.

Where are the Class C misdemeanor records?
Here's a curious little study by the TX Office of Court Administration regarding Class C misdemeanor record retention, availability, and access, ordered by the 85th Legislature.

Video killed the bodycam software
In McLennan County (Waco), the DA's office is becoming overwhelmed with the amount of video it must store, and a glitch caused them to temporarily lose access to it last month. Amazon Web Services stores their video; they're about to up their capacity from 80 to 178 terabytes. A legislator (not from Waco) recently complained to me about the burdens video places on prosecutors under the Michael Morton Act, so this is a developing meme.

Despair and the American prosecutor
Grits has often thought the jobs "cop" and "prosecutor" shouldn't be life-long careers but merely a life phase. The distorted myopia that comes from viewing the world through a crime lens, encountering members of the public mainly via tragedy, at their lives' lowest points, would leave anyone jaded and discouraged. That sounds like how Ellis County DA Patrick Wilson is feeling as he prepares to leave office in 2020.

Assessing rape victims' needs
Check out the recently published "Austin/Travis County Sexual Assault Response and Resource Team Community Needs Assessment," for another aspect of the growing conversation over how Austin responds to victims in sexual assault cases.

Report: Travis County, state prisons collecting voice-print data from phone calls
Prisons are building databases of incarcerated people's voice prints, reported The Intercept in conjunction with The Appeal. "Corrections officials representing the states of Texas, Florida, and Arkansas, along with Arizona’s Yavapai and Pinal counties; Alachua County, Florida; and Travis County, Texas, also confirmed that they are actively using voice recognition technology today" from Securus, a Carrollton, TX-based company.

Bexar DA creates process to avoid arrest for petty offenses
Under the new Bexar County DA, cite and summons will be revived for three offenses: marijuana possession, DWLI, and theft of service. The Texas Legislature this session will consider reducing penalties for two of those offenses: Both the Governor and the Texas GOP platform have endorsed reducing penalties for user-level marijuana possession and Rep. Alma Allen has suggested reducing all DWLI charges to a Class C misdemeanor.

Smart on Crime focused on state jails
Writing at Tribtalk, Smart on Crime Chief Strategist Bill Hammond called on legislators to reduce incarceration in state jails to reduce recidivism.

Whose assets are seized under forfeiture laws?
Here's an excellent profile of asset forfeiture practices in South Carolina, where black men make up 13% of the population but 65% of forfeiture cases. To my knowledge, one can't get to a comparable statistic from available Texas data on forfeitures.

Prosecutor: 'Immoral' to fund justice system through probation fees
An Oklahoma prosecutor says it's immoral to fund his office partially through probation fees, providing corrupting incentives. The same can be said for funding Texas probation departments through high fees. Judges who oversee probation departments have an economic incentive not to let successful probationers off supervision, because they're the ones paying fees to keep the probation departments' lights on.

Sunday, February 03, 2019

SA bail tragedy illustrates how misdemeanors can ruin lives

One of Grits' favorite thinkers on justice topics, Alexandra Natapoff, whose new book about the misdemeanor system, Punishment Without Crime, I hope to review in the coming week, had a column in the New York Post with a Texas anecdote in the lede. It began:
Just before Christmas, Janice Dotson-Stephens died in a San Antonio jail. The 61-year-old grandmother had been arrested for trespassing, a class B misdemeanor in Texas. She couldn’t afford the $300 bail, and a mere $30 payment to a bail bondsman would have let her out. She stayed in jail for nearly five months, waiting for her case to be handled, before she died. Her family has sued, and an independent agency is currently investigating the cause of her death. This is how the American misdemeanor system quietly and carelessly ruins millions of lives. 
Dotson-Stephens was a victim of a vast misdemeanor machinery that routinely and thoughtlessly locks up millions of people every year. America is already infamous for mass incarceration — with 1.5 million state and federal prisoners, we put more people in prison than any other country on the planet. But nearly 11 million people pass through over 3,000 US jails every year, according to a 2016 report by the Department of Justice. On any given day, there are approximately 700,000 people in jail. One-quarter of them are there for misdemeanor offenses; the majority of them, like Dotson-Stephens, have not been convicted of anything and are therefore presumed innocent. 
Given the minor nature of most misdemeanors, it is shocking how often they send people to jail. Amazingly, people routinely get locked up when they are arrested for petty offenses even if they could not be sentenced to jail for the offense itself.
On that last point, Texas is beginning to consider reforms to the misdemeanor system along the lines Natapoff envisions. This legislative session, we've already seen HB 482 filed by Rep. Senfronia Thompson to restrict arrests for Class C misdemeanors, which carry a maximum punishment of a fine, not jail time. This would impact a lot of cases: In Harris County, for example, 11 percent of all arrests are for Class C misdemeanor violations, mostly traffic offenses.

Most famously, Thompson's legislation would have denied the state trooper who pulled Sandra Bland out of her car the authority to arrest her for failing to signal a lane change - the trigger event in a series of injustices that led to her globally publicized death.

Meanwhile, bail reform, the need for which Ms. Dotson-Stephens' case in San Antonio ably demonstrates, will be filed on Monday in conjunction with the State of the Judiciary speech. Maybe that bill would have helped her. Or maybe, when the courts finish articulating the constitutional standards for pretrial release in Texas and the 5th Circuit, ongoing federal litigation will address the problem. Much is uncertain. But one thing is for sure: whatever reforms occur will happen too late to help Sandra Bland or Janice Dotson-Stephens.

RELATED: Here's more background on the case from The Texas Observer.

Saturday, February 02, 2019

Eleven unanswered questions about the botched police raid in Houston

Four officers were shot and two suspects and their dog are dead after a botched narcotics raid in Houston. Friends and family of the deceased say they were innocent victims. Obviously, I hope all the officers recover. But having watched this play out in the press for several days, Grits has questions.

Here's the background: According to the search warrant, police claimed they sent a confidential informant into the home who had assisted in 10 or more prior investigations, all of which had led to arrests and seizures. They searched the CI, gave him cash, and allegedly watched him go into the home in question. He came out with brown heroin in a bag, telling police he'd seen many other bags of heroin and a 9mm pistol. The officers placed the home under surveillance until they could get a warrant.

Problem is, they found no bags of heroin. There was no 9mm pistol. But when the narcotics unit (not a SWAT team) entered the home at five in the afternoon, announcing themselves as the battering ram broke the door down, there was an angry pit bull facing them that an officer immediately killed with a shotgun blast. At that, one of the homeowners returned fire, and an intense gunfight occurred.

The homeowners didn't have a 9mm, but they did have shotguns and a .357 Magnum, and they responded to the home invasion the way many gun owning Texas homeowners brag they would. Maybe they were violent criminals trying to kill police, but they could also have been unwitting victims of a lying informant who didn't understand who had broken down their door and shot their dog.

That's the first question: Were these people heroin dealers? The available evidence says no, and regrettably, they're not around to defend themselves against the allegation. Their neighbors told reporters they almost never had visitors, and their friends and family adamantly deny the charge. Cocaine was allegedly found on the scene, but one bag, at user levels. And the multiple bags of brown heroin and 9mm weapon alleged in the search-warrant affidavit were nowhere to be found.

So the second question is: Where did the informant get the heroin? Police claimed they followed best practices, searching the informant beforehand and watching him go in and out. The couple couldn't have moved it because police had the house under surveillance. And they'd have seen if there'd been enough customers for all the volume to deplete. So if the informant brought back heroin, where did it come from?

Third question: Is it plausible that this couple would sell smack to a CI sent to their front door whom they'd never met before? Something there doesn't add up.

Fourth question: Will the Conviction Integrity Unit at the Harris County District Attorney's Office now review those 10+ cases using this informant in the past? If he lied about this couple selling heroin, what else might he have lied about?

Fifth question: HPD claimed they raided the home for safety reasons because they knew there was a gun inside (even though they had bad information about that; there was no 9mm). But given the outcome, was it really safer? It was 5 p.m., so they were awake. Mightn't the outcome have been better if they'd just knocked on the front door?

Sixth question: Should police use "dynamic entry" to execute search warrants every time there's reportedly a gun in the home? There are probably guns in half the homes in Texas! Relatedly, if you're afraid someone might shoot at you when you break down their door, why not just wait outside for them to come out? The house was already under surveillance.

Seventh question: Were these narcotics officers sufficiently trained to perform a dynamic entry? There's a subsidiary question: why wasn't a SWAT team used? After his wife and dog had been killed, the husband, a Navy veteran with no criminal record, snuck out the back and opened fire on the officers from behind, the Houston Chronicle reported. This was a basic tactical error - someone should have been manning the back door. Also, such raids are frequently conducted pre-dawn to minimize the chance suspects will be awake and shoot back. This one was performed at five in the afternoon. So did these narcotics cops just not know what the hell they were doing?

Eighth question: Could they have raided the wrong house? The search warrant affidavit says police watched the informant go into the house and come out with drugs, then watched it until they raided it. But what if that's a lie? What if the informant merely told an officer the address of the house, and got it wrong? Otherwise, where is the heroin?

Ninth question: How much was the informant paid for this service? What is this person's background? How much was s/he paid in the past, and for what services? An officer vouched for the person in the search warrant affidavit, what was their relationship? It's okay to tell, the person can never be used as an informant again.

Tenth question: Chief Art Acevedo said neighbors thanked police for taking out a known drug house. But reporters interviewed every neighbor they could find and everyone said these were quiet people who seldom had visitors, loved animals, and kept to themselves. Why weren't those grateful neighbors corroborating the chief's claims to reporters?

Eleventh question: Why does Fox and Friends give union boss Joe Gamaldi a platform? The guy's a blowhard.

For more commentary on some of the implausible aspects to this story, see Reason's Jacob Sullum here and here.

MORE: On Twitter, someone suggested another excellent question: "Who shot who?" It was said the wife was shot when she lunged for a downed officer's shotgun after her dog had been killed. Does that mean she was unarmed at the time and the husband did all the shooting? Were any of the police injured by friendly fire?  Who shot who is an excellent question.

UPDATE (2/15): We're starting to get a few more answers. The informant may not exist, reported the Houston Chronicle, and police officers used heroin already in their possession to claim they'd performed a controlled buy. The narcotics officer who signed the warrant, Gerald Goines, from his hospital bed named two informants who may have performed the controlled buy, but both denied participating when questioned by investigators.
In the original warrant - the one used to justify the raid - Goines wrote that he watched the buy and, along with [Steven] Bryant, identified the substance as heroin. But when investigators went back to talk to Bryant, he admitted that he'd actually retrieved two bags of heroin from the center console of Goines' car, at the instruction of another officer. 
Though he then took the two bags of drugs for testing to determine that they were heroin, he eventually admitted that he had never seen narcotics in question before retrieving them from the car. That, the investigator noted, contradicts the search warrant affidavit filed before the raid, which indicates that Bryant "recognized the substance purchased by the CI as heroin."

Friday, February 01, 2019

Reasons Texas county jails failed their state inspections

When I saw that an inmate recently hanged himself in the Waller County Jail - the same jail in which Sandra Bland died - on a hunch, I checked to see if Waller has failed its last jail inspection. It had. But that also made me notice the list of other jails currently out of compliance with Texas Commission on Jail Standards regulations. So I looked through all of them and made a few notes. Here are the highlights:

In Waller County, jailers failed to check the detox cells in a timely fashion, misclassified several inmates at intake, failed to undertake required custody reassessments, and failed to make regular rounds as often as state regulations require. Required every-30-minute observations of inmates who are assaultive, suicidal, mentally ill, or displaying bizarre behavior were often exceeded, by from 1-74 minutes, according to jailer logs. MORE: This followup story from the Houston Chronicle goes into more detail on failures from the jail inspection.

In Victoria County, mold issues are a "serious health and safety concern for both inmates and staff."

In Tyler County, jailers were not properly filling out suicide screening forms or notifying the magistrate when an inmate was suicidal.

In Sutton County, jailers were not notifying magistrates of the results of suicide screening, and inmate menus have not been approved by a dietician since 2016.

In Shelby County, an un-monitored inmate was allowed to leave his work assignment for up to 2.5 hours at a stretch, during which time he engaged in illegal activity.

In San Saba, jailers are not giving the required suicide screening form to magistrates, and numerous maintenance problems were cited.

In Robertson County, jailers hadn't been trained in suicide prevention and observation logs showed they were exceeding the times they were required to check on inmates.

Red River County wasn't training jailers after they were hired and were not conducting welfare checks on inmates in detox.

In McLennan County, the jail failed to comply with the mandatory 1:48 staffing:inmate ratio, and failed to make timely checks on suicidal inmates.

In Limestone County, jailers failed to conduct daily cell inspections and were not checking on suicidal inmates as often as required.

In Liberty County, jailers were not notifying magistrates when inmates were suicidal, and contraband was found in inmate housing areas.

In Kinney County, the doors are open and shut via a control panel in the dispatch room, which is kept unlocked and accessible to inmates. In one instance, "an inmate opened doors for jail staff to access a cell area during a fight. It was also determined that the inmate, using jail keys, opened the gate to the west side of the jail to allow a jailer into the booking area." Also, jailers weren't notifying magistrates when inmates were suicidal.

In Jim Hogg County, jailers weren't filling out suicide screening forms and lunches did not match dietician-approved menus.

In Hunt County, jailers didn't receive suicide prevention training, were sometimes short-staffed, and weren't monitoring suicidal inmates often enough.

In Harris County, the jail was "not being kept at an acceptable level of cleanliness" and food being served failed to meet health code standards.

In Goliad County, jailers weren't filling out the mental health screening properly and the facility suffered from cleanliness issues.

In Frio County, the jail was short staffed, jailers aren't always notifying magistrates when inmates are suicidal, menus weren't approved by a dietician, and the facility was "unclean and unsanitary."

In Fisher County, jailers hadn't received suicide training and failed to check on the detox cells often enough.

In Fannin County, following an inmate's death it was determined jailers had exceeded check-in times by up to 49 minutes.

In Crockett County, the jail had no hot water in inmate living areas.

In Comanche County, jailers hadn't received suicide prevention training and the facility suffered from numerous maintenance issues.

In Bowie County, four jailers failed to meet licensing requirements and the jail failed to meet required staffing ratios.

The good news: at most jails, TCJS inspectors found jailers were making suicide rounds as required, weren't unsanitary or unclean, fed inmates dietician-approved meals, etc..  But when they find problems, this gives you a sense of what they look like. And it's little surprise that Waller County - a small jail with a history of suicide-prevention failure and documented, ongoing lack of observation of suicidal inmates - would see another suicide when they're not following proper protocols.

Perhaps, if the deceased Waller-County inmate had been monitored as often as state regulations require, he could have been found sooner and saved. Jail rules have reasons, even if they can seem bureaucratic and cumbersome. They are almost always created with the benefit of hindsight, which is why they can seem prescient when failure to follow them leads to a tragedy.

Considering long DPS license-center lines and ballooning prison-healthcare costs at House Appropriations

The Texas House Appropriations Committee on Tuesday will consider two items this blog has covered quite a bit heading into session: Long lines at DPS driver's license centers, and prison healthcare costs. For any staffers reviewing in preparation for the hearing, here's some background on those two topics:

Reducing DPS License-Center Lines
In the Texas Senate, the conversation centered almost entirely around how much money the Legislature should spend to expand license-center capacity. But they should also be considering ways to reduce the number of people in line, whose volume is exacerbated by hundreds of thousands of people with suspended licenses trying to get legal. Here are some suggestions for tackling that problem:
Texas ranks near the bottom among states in per-prisoner healthcare spending. The state has under-funded prison healthcare for years, with increases over the last couple of sessions never quite making up for draconian cuts in prior sessions. Texas can't reasonably cut further. The only reliable way to reduce healthcare costs is to reduce the number of people incarcerated to whom the TDCJ is providing medical care.

Third party will review rape-clearance data that spurred ouster of Austin PD division chief

Last night, the Austin City Council voted to have a third party review years worth of cases to discover the extent to which the Police Department inflated clearance rates in sexual assault cases. the agency pressured the head of the sex crimes unit to declare more cases "exceptionally cleared," then removed her when she refused and began puffing up the numbers, anyway. Now we know she was in the right and APD brass was fudging data to misrepresent success rates to the city council and the public.

Here's the Statesman's minimalist coverage, but you can watch the testimony yourself if you like. On the latest episode of the Reasonably Suspicious podcast, my co-host Mandy Marzullo and I included a segment on this topic, in which I took APD Chief Bryan Manley to task for blaming victims and playing hide-the-ball. I've excerpted it here to highlight the issue; give it a listen:


The city council is letting Chief Manley off easy. He has not behaved like a man who understands why what the department did here is a problem. OTOH, the controversy isn't over: Manley is scheduled to address the issue before the public-safety commission on Monday evening.

See prior, related Grits posts:

Monday, January 28, 2019

Senate Finance debate ignores policy solutions to excessive DPS license-center lines

The Texas Senate Finance Committee this morning had a quite-animated discussion over long lines at DPS driver license offices. But nobody yet has raised the topic Grits considers the most significant in this debate: state-driver's-license-revocation policies contributing hundreds of thousands of extra people annually to DPS license-center lines. I'd written about these issues last fall.
Sen. Kirk Watson bemoaned DPS asking the state to throw money at the problem without a plan to fix it. He's right.

To me, there are obvious policy solutions to reduce the number of people unnecessarily in line at driver-license centers. But first, the state must stop the myopic focus on solving the problem through staffing, and focus on measures to reduce the number of people in line.

It's not that more staffing wouldn't help, especially in the Customer Service Center where drivers' questions might be answered over the phone without waiting in line at the license center. But the biggest problem, by a country mile, is that Texas suspends more driver's licenses than any other state.

Most suspensions occur because of the Driver Responsibility surcharge. About 3 million drivers have incurred 16 million surcharges since its inception. Of those, 1.4 million  currently have suspended driver's licenses. Another 300K have suspended licenses because of unpaid traffic tickets. Adding all these people with complex license-restoration cases into the lines at DPS when they otherwise may not need to renew for years contributes greatly to long license-center lines. How could it not? A conservative estimate of the number of additional, unnecessary license-center visits generated annually because of driver-license suspensions runs into the high nine figures.

There are other, smaller contributors to license-center lines: E.g., 100,000 sex offenders are not only required to maintain registry requirements with the state, they must renew their driver's licenses annually. There's no added safety benefit to doing both, and it's making the lines for everyone else longer.

Similarly, everyone convicted of marijuana possession has their license suspended for six months, after which they must go back to the license center to get it renewed. There's no public-safety reason for these extra license renewals, and they also make the lines longer. The state Republican Party platform endorsed making pot possession a civil offense, in part to avoid these sorts of collateral consequences.

Here's an outline of budget and policy measures that would reduce license-center lines:
  • Eliminate the Driver Responsibility surcharge and give amnesty to the 1.4 million people whose licenses have been suspended over it.
  • Stop requiring sex offenders to renew their driver's licenses annually.
  • Punish low-level marijuana possession with a civil penalty instead of criminal charges to bypass federal license-suspension requirement.
  • Fully fund the DPS Customer Service Center and increase pay for call-center staffers to stop high turnover.
  • Consider renewing licenses every eight years instead of every seven years.
If and when the DRP is eliminated, there will be an initial surge as people with suspended licenses get them renewed. But after that, these measures would dramatically relieve pressure on license-center lines.

The only alternative to reducing pressure on license-center lines is throwing more money at a failing system. No matter which agency is in charge of licensure, there is no third path.

Guard understaffing just one reason the #txlege must reduce inmate populations and close more state prisons

Budget hawks at the Texas Legislature should be taking a close look at the state prison system this year. Without significant policy changes to take some of the stress off of the agency and its employees, the system is on the verge of crisis along several axes.

As the Texas Senate Finance Committee prepares to hear testimony today on the Texas Department of Criminal Justice's budget request, the Houston Chronicle's Keri Blakinger reported over the weekend that understaffing at several rural prison units is reaching crisis levels, with system-wide turnover approaching 30 percent. Overtime last year cost $80 million, the most ever spent, and overtime hours were nearly triple 2012 levels.

TDCJ is asking the Lege to solve the problems by raising salaries by $156 million. And salaries should be higher. But that wouldn't cause staff to magically appear in Kenedy or Hartley Counties, for example. There just aren't enough people there to entice with dangerous, low paying work. And if you're willing to move, there is dangerous, high paying work to be had in the oil fields. It's not hard to see why folks leave rural prison jobs as soon as they can find something else.

Grits has been harping on understaffing at rural units for years, and consider those prime candidates for closure. It's pretty easy to envision sentencing reduction packages for low-level drug offenses and probation reforms to reduce revocations that would let the Lege close several of these far-flung, understaffed units. I'm hoping we see some of those filed this session.

These days, lots of people want to reduce mass incarceration simply because it's the right thing to do, and your correspondent counts himself on that list. But even for policymakers who lack that predilection, there are strong arguments for reducing the size of Texas' prison system based in pragmatism and fiscal conservatism.

Guard understaffing is just one reason the Lege might want to reduce prison populations. Others are, in no particular order:
  • Prison healthcare costs are skyrocketing: TDCJ says it needs $247 million to continue providing current levels of services. The draft Senate budget reduces prison healthcare by $1.3 million, while the House budget only gave them $160 million of what they need. Reduce the number of prisoners, reduce medical expenses.
  • Maintenance costs rising: TDCJ has asked for $146 million in new maintenance spending this biennium. They're going to ask for another nine-figure maintenance bump next biennium, as well. Some units should be closed instead of repaired.
  • A/C litigation may be tip of an iceberg: TDCJ agreed to install air conditioning at the Wallace Pack unit after federal litigation. But the standards the court set for heat sensitive inmates there are violated at other units, and it's likely the agency will be required to air condition more if not all units if other, related litigation succeeds. Reducing inmate populations before that happened would lessen the impact. (Ironically, paying for A/C would go a long way toward boosting staff retention.)
  • Prisons are not hospitals: Many addicts and mentally-ill people should not be there. (I realize expanding Medicaid in Texas is a non-starter given the current statewide leadership, but that's the best public-safety strategy for dealing with those populations.) That observation leads us to ...
  • Penalty reductions could free up money for treatment: Presently, treatment dollars are scarce and waiting lists for substance-abuse treatment are long. Reducing user-level drug possession to a Class A misdemeanor would free up nearly $200 million per biennium. A budget rider could designate that all savings certified from the change be spent on drug treatment.
Crime has been declining for a long time now, but Texas prisons remain full. That can change - we can reduce incarceration without reducing public safety - but it will require viewing the question through a policy lens, not just a budgetary one. Throwing more money at prisons without addressing policies that keep the prisons full will just kick the can down the road. Eventually, the Legislature must reduce incarceration. It would be better if they did so before understaffing flowers into a full-blown public safety crisis at remote, rural units that gets people killed.

Sunday, January 27, 2019

County Judge blames #txlege for indigent defense costs, but local officials' choices are to blame

Having written yesterday about Texas counties portraying their core, criminal-justice responsibilities as "unfunded mandates," this morning Grits was treated to a column in the Dallas News by Cooke County Judge Jason Brinkley. Cooke County is a mostly rural area hugging the Oklahoma border north of Denton; Gainesville is the county seat.

After rightly complaining that the state's under-funded school-finance system, not county expenditures, were driving property-tax increases, Mr. Brinkley veers off into bizarro-world. Nearly all of this reeks of falsehood and misrepresents reality:
When new state mandates cost money to carry out but don't come with state funding, they act as state-imposed local property tax increases. Either way you look at it, these are costs that counties must cover, and they are increasing. 
For example, in Cooke County our indigent defense costs have increased by 80 percent over the past eight years and the criminal caseloads have more than doubled. 
We have seen a 50 percent increase in our jail population over the past eight years and in our costs for food and inmate health care. The upcoming requirements of the Sandra Bland Act are estimated to cost our county $400,000 a year, a 10 percent increase in our jail budget.
Let's dig into these claims. First, he's right that Cooke County's indigent defense costs have increased 80 percent, as the Indigent Defense Commission corroborates. And since Cooke County's population has only nudged upward over the last decade, on its face that seems alarming.

What Judge Brinkley fails to tell Dallas News readers, however, is WHY indigent defense costs are rising. As it turns out, ALL of the increase may be attributed to increases in the total-case count, not new-state-government requirements. Despite crime declining throughout this period, the number of Cooke-County cases with appointed counsel rose from 379 in 2001 to 850 in 2018, or a 124 percent increase.

Why might that be? One possible answer: Prosecutors control how many cases are brought, and continued to increase case filings even after crime had been declining for years, not just in Texas, but nationally.

That's what seems to have happened in Judge Brinkley's jurisdiction. Cooke  County's population increased only slightly over the last decade, and crime went down. But in FY 2011, according to Office of Court Administration data, felony district courts in Cooke County added just 430 new cases. In FY 2018, they added 1,289.

That's a 200 percent increase in felony cases brought by local, elected prosecutors in Cooke County during an era when crime declined. The Gainesville Register has reported that much of that increase stemmed from increases in user-level drug prosecutions.

Obviously, most of the jail increase stemmed from the increase in cases. But it's also a function of a refusal to enact bail reform. According to the Commission on Jail Standards, 63% of inmates in the Cooke County Jail as of December 1st were awaiting trial, but were being held because they couldn't make bond.

Judge Brinkley is blaming state government for problems being caused by local, elected officials. Both increased indigent defense and jail costs in his county resulted directly from decisions by local prosecutors, not anything the Legislature did.

Finally, the idea that the Sandra Bland Act will cost Cooke County $400,000 sounds like a major reach. I don't doubt there are additional costs, mostly for additional training and record keeping; installing sensors or cameras so the jail can track whether guards actually make their rounds is probably the biggest one, but they don't require cameras can view every cell. Looking at the full panoply of new requirements, it's difficult to imagine the cost to tiny Cooke County coming close to $400k. The claim appears especially suspect once you understand how much Judge Brinkley misstated other criminal-justice costs.

I'm not sure why county officials would want to pit themselves against the popular Sandra Bland Act. The new requirements were de minimis, and from a tactical perspective, they lose that debate, even if they win!

Nobody forced Cooke County prosecutors to increase felony prosecutions 200 percent over a period when their population barely inched upward and crime (real crimes, with victims, not prosecution of addicts) declined. And it's childish to mask responsibility for those choices by loudly blaming someone else for them in the Dallas Morning News.

County officials should stop conflating the very real challenges facing the Legislature over school-finance and property taxes with their whining over having to pay for traditional duties they've been performing for decades. It's reasonable to seek relief regarding property taxes, but the state legislature isn't responsible for most of the justice-system problems county officials are decrying in their media blitz.

Saturday, January 26, 2019

Counties promoting misinformation about indigent defense in anti-unfunded-mandate campaign

I'm sick of the Texas Association of Counties (TAC) trying to include indigent-defense costs in their list of unfunded mandates. They can't make the case honestly, and their attempts are diverting from their valid, more important critiques of the state finance system. Here's an example of the BS they're spreading among county judges about indigent-defense costs, from the Marshall Messenger, quoting Marion County Judge Leward LaFleur:
For the most recent year, for instance, Marion County designated $70,193.31 to support the appointment of attorneys in criminal cases and $33,181.14 to support the appointment of attorneys in Child Protective Services (CPS) cases. 
“This used to be paid for — 100 percent — by the state of Texas,” LaFleur said of both expenses.
Grits can't speak to the CPS funding, but the comment about the State of Texas previously paying 100 percent of indigent-defense costs is a bold-faced lie. IRL, counties paid ALL indigent defense costs before the Fair Defense Act was passed in 2001. After that, the state paid a small and growing portion, but more than it ever had before.
Source: Waco Tribune Herald
Pretending that state government previously paid 100% of indigent defense costs is an example of self-interested disingenuity, fabricating "facts" when the real ones don't match your agenda. That's especially troubling to me because it discredits TAC as a messenger. Not only do I have nostalgic sympathy for the organization (my grandfather, W.D. Henson, was one of their founders and the group's first president), but I also agree with most of their critique over unfunded mandates and property taxes. As such, I think larding on false, easily debunked arguments detracts from their central message.

Throughout living memory, there has been an unspoken split in Texas regarding how law enforcement is funded. Cities pay for cops, municipal courts, and city jails. Counties pay for jails, sheriffs, constables, and courts, including prosecutors and, with the advent of indigent defense requirements in the 1960s, attorneys for indigent clients. The state paid for punishments - what happens after sentencing - including prisons, probation, and parole - and for the highway patrol.

There has never been some idyllic time when the Texas Legislature fully funded indigent defense before shunting the duty aside to the counties, as the TAC narrative would have it. Rather, according to a 2013 feature from the Texas Bar Journal, from the beginning, "with no state funding, Texas counties bore the full cost of indigent defense." The Legislature has required indigent defendants be appointed counsel in all cases where incarceration was possible since 1965 (seven years before a federal court case would have engendered the obligation). The Legislature didn't contribute a dime to this line item until after the turn of the century, and then mostly in grants, in relatively small amounts.

Debates about state-county funding responsibilities historically centered around the middle ground between jurisdictions: Who pays for parolees housed in the county jail on "blue warrants" until the parole board can decide whether to revoke them? Or how long must counties house people after they've been convicted before the Texas Department of Criminal Justice picks them up for their prison sentence?

Lately, though, counties have tried to tack on indigent-defense costs to the very real examples that make up the rest of their unfunded-mandates portfolio. It's time to stop pretending, as Judge LaFleur does, that in some past-life fantasy, state government paid 100% of indigent defense costs. It's not true. And TAC spreading misinformation to county officials to regurgitate in their local newspapers won't make their falsehoods any more true. Last year, they were telling county officials the state owed them money! No matter how much they whine, history will not change to suit TAC's present-day interests.

Grits doesn't disagree the state should fund indigent defense more. But with state funds come state restrictions. And I'd bet dollars to donuts that, if the state did boost indigent-defense funding substantially, these same county voices will then begin whining about the red-tape and rules that come with it.