A primer on conservative messaging for indigent defense reform

At the Marshall Project, Alysia Santo has a story titled, "How conservatives learned to love free lawyers for the poor," telling the story of an Idaho legislator and conservative activist who successfully spearheaded indigent defense reforms there. Grits thought it would be useful to highlight some of the messaging that helped them succeed.

For example, here was state Rep. Christy Perry's pitch on improving indigent defense to gun owners:

Perry framed the idea in terms of another issue she knew the gun show attendees felt passionately about. 

“I’d say, ‘What if you get convicted of a felony — and you shouldn’t have, because you didn’t get adequate defense — and now you’ve lost your gun?’ They recognized that this is really about limited government.”

She countered "big government" complaints with an appeal to constitutional reverence:

Others said it would make government even bigger. But Perry argued that public defense was at its core a conservative cause. "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence," reads the Sixth Amendment. “You can’t argue with that,” Perry said. “Not in a conservative state.”

And they framed the issue completely outside of racial politics tropes:

for the growing coalition of conservatives working to reform public defense, race isn’t the central issue. Poor white defendants are being failed by the public defender system just as non-white ones are, they contend. According to the Bureau of Justice Statistics, which last conducted a survey on this subject in 1997, 69 percent of white inmates in state prison said they had court-appointed lawyers, while 77 percent of black and 73 percent of Hispanic inmates did. Many conservatives believe that pointing out racial disparities in this context is polarizing and counter-productive.

David Carroll, the executive director of the Sixth Amendment Center whose work helped sway Rep. Perry,

says looking at the issue through the lens of big government overreach — or what he calls “the tyranny prism” — may provide results that the left ultimately cannot argue with, even though it means sacrificing a central tenet of their ideology.“A tyrannical government hurts those with the least voice in the political process first, including the poor and people of color,” Carroll says. 

“Tyranny explains what people on the left want to explain, that the criminal justice system has disproportionate impacts on people of color.” But conservatives are often hesitant to declare the system racist, he said. “The tyranny prism is a framework that allows conservatives to be at the table, too." 

“I’m not trying to excuse racism. I don’t deny racial disparities, those are facts,” Carroll says. “But people don’t believe, ‘I’m racist.’ So why do you have to force them to go to confession just to start working on this? All it does is drive a wedge and make this impossible.”

Grits is reminded here of Texas' House Committee Chairman James White's invocation of the word "tyranny" in his interview in July on the Reasonably Suspicious podcast. He complained of the "small tyranny" of arrests for unpaid traffic fines as opposed so some of the greater tyrannies involved in wrongful convictions, etc.. The "tyranny" frame is a flexible and powerful one, with a great deal of explanatory value in the same situations where liberals may seek to impose racial explanations. Racial debates in America are fundamentally about power, and the powerless may be victimized by "tyranny" regardless of skin color.

The innocence frame helped sway libertarians, like the Tea Party state Rep. in Michigan who pushed public defender reform because, “If there’s one thing the government must get right, it’s whether or not we’re locking up the right people.”

And there's always the economic framework: "For many conservatives, reform is also about saving taxpayer money, since it can reduce the costs of unnecessary incarceration, endless legal appeals, and lawsuits from those wrongly imprisoned."

Further, “To fund programs intended to provide effective representation to persons accused of crime, when you phrase it that way, it becomes a very low priority,” [the chair of Tennessee's Indigent Representation Task Force] said. But “that is actually a quintessentially fiscally conservative thing to do.”

The general counsel for Koch Industries framed the topic in terms of government ineptitude: “I would say the criminal justice system is a failed big government program, for sure.”

Finally, introducing the issue through this frame can prime conservative lawmakers to address other "tyrannies" within the justice system. Santo's article closed:

Meanwhile, some conservative lawmakers who became passionate about indigent defense have turned their sights on other examples of what they see as abuses in the criminal justice system. In Michigan, McMillin continued his partnership with the ACLU, drafting legislation to limit civil asset forfeiture and warrantless police searches. 

And in Idaho, Perry said she and a fellow House member have crafted a bill to eliminate mandatory minimum sentences for drug crimes. “It’s funny,” she says, “I’ve started filtering my questions through the eyes of a public defense commissioner a little bit.”

So for whomever replaces Jim Bethke at the Texas Indigent Defense Commission, there's your red-state reform messaging. There's a little something in it for everyone.

Some lefty advocates in the story worried that failing to frame the issue in terms of race would doom reforms, with one wag suggesting that the tactic amounted to "putting a Band-Aid on cancer." But in Texas, many criminal-justice reform victories have hinged on similarly framing the topics in terms of conservative values and couldn't have passed otherwise. Based on that experience, Grits can say with certainty that the racial disparity issues still get discussed under this approach. Always. Once this debate is launched, racial disparity issues inevitably come up. But they do so in the context of a framework that includes approaches conservatives can countenance.

What you're seeing here is the real-world implementation of an idea Dan Kahan has discussed, framing issues with enough ambiguity so that different actors in the system can support a proposal based on different value systems. Liberals who want to view indigent defense through a racial disparity frame remain free to do so. But this approach gives the large number of white folks on the other side of those culture-war debates a way to agree with a surprisingly large number of policy prescriptions which liberals can wholeheartedly endorse.

Public defender for appeals would reduce waste, increase efficiency, protect rights

Lots of appeals in Texas' criminal-court system are filed pro se by people who lack representation, and often they make procedural errors that prevent the courts from ever considering the merits of their case. Here's an example.

My podcast partner, Mandy Marzullo at the Texas Defender Service, has been promoting the idea of a capital public defender for direct appeals (see a related report from TDS), and the chairman of the House Corrections Committee filed legislation to create one (see here for an interview with him that includes a discussion of this topic).

But at least capital defendants all have lawyers of some sort, even if they're too often deficient. The guy in this case had no lawyer at all. He filed his appeal in time, but with the wrong bureaucrat, in the wrong court - an error even the lamest practicing attorney wouldn't have made - and so the merits were never considered. But that's not the end of it: inevitably, the guy ends up filing a habeas corpus petition on the back end - meaning courts have to process his claims twice - all because the defendant had no access to legal counsel for an appeal.

If that seems wasteful, the waste serves a self-interested purpose for some actors in the system: A lot of error, ineffective lawyering, unrecognized rights, and wrongful convictions get swept under the rug that way.

States with appellate divisions at statewide public defenders avoid some of these problems, resulting in a more efficient process where the courts' focus is on the underlying issues at stake, not procedural correctness. But in Texas, if an indigent defendant cannot pay for an attorney to file an appeal - and they are not accused of capital murder - the government does not pay for a lawyer to file anything beyond an initial, pro forma appeal, and too often, as in this case defendants don't even get that much help.* There's a penny-wise-and-pound-foolish aspect to this structure, which too often appears as though it were devised to serve the interests of entrepreneur-attorneys over the goal of defending the constitutional rights of defendants.

RELATED: From Raw Story, "Every year millions try to navigate US courts without a lawyer."

*An earlier version of this post incorrectly stated when the government will pay for indigent appeals. Thanks to a commenter for correcting my error.

Austin's police contract among worst in nation from accountability standpoint, says Campaign Zero cofounder

Campaign Zero's Sam Sinyangwe was in town this week to lobby the Austin City Council for reforms in its meet and confer agreement, fresh off of being honored  at Forbes 30 Under 30 gathering (and trolling Warren Buffett on Twitter in the process). We'll publish an interview with Sam in next month's Reasonably Suspicious podcast, but in the meantime, here's a recording of a speech he gave Thursday evening at the Windsor Park Library in Austin, introduced by Chas Moore of the Austin Justice Coalition. (Chas' remarks were a bit crackly, but the audio clears up once Sam starts speaking.)


And here's his presentation:


Find a transcript of his speech after the jump.

Texas not among states arresting prison visitors for traffic warrants

In Michigan, state prisons arrest visitors who arrive with outstanding traffic warrants, running their names and arresting them while they wait, the Marshall Project reported.

Grits emailed Jason Clark, spokesperson at TDCJ, to ask if Texas prisons did something similar. For the record, he replied, "No sir, we do not."

Glad to hear it.

TDCJ ends solitary confinement as punishment, and other stories

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

• TDCJ is ending the use of solitary confinement as punishment, and the number of people in ad-seg overall continues to drop precipitously. "Before the administrative change was implemented this month, Texas prison officials had made sharp reductions in its solitary confinement population. In August 2013, there were 215 inmates in punitive solitary confinement. By July 2017, that number was down to 76. In the same time frame, the number of inmates placed in administrative segregation decreased from approximately 7,200 to 3,940."
• Why no Texas 5th Circuit nominations yet?
• Judge orders AC for some Harvey-displaced prisoners.
• Read Brandi Grissom on Texas' latest snitching reforms, and a case study supporting them published last year. The Texas Tribune quoted the national Innocence Project saying that, with Texas' newest innocence statute, our law represented the "gold standard" among states on innocence reform.
• Read the Texas Public Policy Foundation's Greg Glod on why Texas' cash bail system is "costing us all a fortune."
• More on this later but the Texas Indigent Defense Commission has produced a "primer" for operating "managed assigned counsel" systems. These are basically the counter-proposal by the Texas defense bar to the push to create real-deal public defender systems. MAC systems are IMO a better situation than straight-up judicial appointments, but not by much. In Austin, Grits has not observed that the managed assigned system has resulted in significant improvements in indigent representation. There's a risk of nearly-impossible-to-root-out corruption and self-dealing by the defense bar. This is basically a regulatory system that's been captured by the regulated parties. 
• Here's an academic article on, "Changing the Culture of Disclosure in Forensics" which gets added to Grits' to-read pile.

Texas yet to 'turn the page' on police reform, and other stories

Lets's clear out Grits' browser tabs with a quick roundup of stories about policing which deserve Grits readers' attention:

Texas hasn't 'turned the page' on police reform just yet
First, The Crime Report had an interview with Texas state representative and House County Affairs Committee Chairman Garnet Coleman on passage of the Sandra Bland Act. Coleman's comments were more measured, but the story included an unfortunate headline: "How Texas turned the page on police reform." To be clear: Texas has done no such thing. Coleman's bill mainly addressed mental health issues and mandated Texas cops receive deescalation training. But Texas' big police reform bill died on the vine this year, and the most important reform elements in Coleman's bill - eliminating arrests for most Class C offenses and mandating bail for non-dangerous misdemeanants - were removed before passage. The Sandra Bland Act was significant, positive legislation and Grits doesn't want to diminish its importance, but let's please slow our roll on the whole dusting off our hands, problem-solved meme.

Austin PD crime lab blues

The Austin Monitor has a pair of stories detailing problems at Austin PD's crime lab which forced the closure of its DNA section:

• Austin's crime lab failure points to national crisis
• The implosion of Austin's crime lab: A timeline

Will legalized long knives change how Texas cops deal with knife wielders?

Now that Texas has legalized people carrying knives and swords of any size, perhaps the issue of how quickly police shoot knife wielding suspects will be revisited.

Public reverence for cops undermined by shoot-first ethic
This essayist in Slate makes a good point, with an homage to Dallas News columnist Steve Blow, disputing the adage that the “No. 1 duty of a police officer [should be] to go home to his or her family at the end of the shift.” Here's the money quote the writer pulled from Blow's March 2015 column.

But there’s the crux of the matter. They have willingly taken a job that involves personal risk. It also requires split-second decision making that must go beyond simple self-preservation 

If going home safely becomes the overriding priority, that can become another way of saying, “Shoot first and ask questions later.”

This modern dicta of 21st century policing ultimately undermines the public's faith in law enforcement as surely as do unfounded criticisms of racism with which police officials are so much more deeply concerned. After all, as the Slate author concluded, "The reason we revere cops isn’t their dedication to protecting their own lives. It’s their dedication to protecting ours."

More disagreement among law enforcement than portrayed
The Heritage Foundation has published an odd "special report" purporting to summarize a convening they sponsored of various law enforcement officials. However, upon looking at the stakeholders' disparate remarks appended therein, Heritage oversold any notion of consensus, and in fact revealed significant disagreement among its (one-sided) array of stakeholders. According to Heritage, "police have had few allies," and "anti-police rhetoric has left Americans, particularly those living in low-income communities and minority communities, more at risk." But they overstated the consensus. E.g., the explanatory text under a headline which read, "Allegations of 'Systemic Racism' Are False and Harmful," actually read, "Some attendees agreed that the concept of broad 'systemic racism' in law enforcement is a damaging, false narrative that undermines public support for policing. Others felt it important to acknowledge and address past wrongs and prior grievances in order to improve race relations." That range of views hardly supports the subhed! Regardless, Heritage warned darkly that "long-term declines in crime rates ... are now being threatened by some of the developments discussed in this Special Report." This deserves a more thorough vetting than Grits has time to apply at the moment, but I wanted to flag the link.

Recent policing scholarship

Here are several academic articles on policing which are getting added to Grits' to-read stack:

• Elizabeith Joh, "The undue interest of surveillance technology companies on policing."
• Frederick W. Turner II & Bryanna Hahn Fox, "Public servants or police soldiers?"
• Adam Gershowitz, "The Intake Prosecutor: Prosecutorial screening before police make warrantless arrests."

Reasonably Suspicious: Listen to the podcast, join us for our Launch Party!

After several months of working out the kinks in a soft launch, Just Liberty's Reasonably Suspicious podcast now is up and running on numerous platforms - iTunes, Google Play, YouTube, SoundCloud, etc..  Please subscribe and give it a try! I'm proud of the results so far, and we're improving every time.

We've now got a fresh new logo created by the legendary Guy Juke, plus original music by producer/guitar virtuoso Gabe Rhodes and some of the best musicians in Texas. I couldn't ask for a smarter, more able co-host than Mandy Marzullo from the Texas Defender Service. The excuses for failure are dwindling! :)

Just Liberty will host a podcast launch party in Austin on Wednesday, September 20th to celebrate the new project. Please join us if you can! See our Facebook event page for details.

You can listen to the podcast here, or as usual find a transcript with links to underlying documents and news stories below the jump.



Here are the topics covered in the September 2017 episode:

Top Stories

• Police-union pension crisis predicted by Ron DeLord
• Prosecutors ill-advised to withhold witness statements
• Big implications for Harris County bail-reform litigation

Forensic Follies

• Junk Science Writs and the Goldilocks Problem
• First DNA-mixture "black box" broken open

Last Hurrah (quick takes)

Why criminal court judges are poor forensic gatekeepers

Yes. This.

Why do judges frequently fail to keep faulty forensics out in criminal cases despite the fact that they rigorously enforce Daubert’s gatekeeping requirements when presiding over civil cases? Daubert requires trial judges in both civil and criminal proceedings to determine “whether the reasoning or methodology underlying the testimony is scientifically valid.” As the relevant research reveals, however, judges are far more willing to fulfill their gatekeeping roles in civil cases than criminal ones. Challenges to forensic evidence pretrial, including Daubert hearings, are rare in the criminal context. As the NAS Report makes clear, “the vast majority of the reported opinions in criminal cases indicate that trial judges rarely exclude or restrict expert testimony offered by prosecutors.” The evidentiary standards that apply to expert forensic evidence should be identical in civil and criminal proceedings according to the Federal Rules of Evidence and relevant precedent, yet courts rigorously engage in gatekeeping of such evidence in civil proceedings while giving broad leeway to prosecutors in criminal proceedings. Therefore, the courts’ failure to exclude faulty forensics in criminal cases cannot be explained away simply by pointing to judges’ lack of scientific prowess.

In Just Liberty's next Reasonably Suspicious podcast, out tomorrow, Mandy Marzullo and I discuss the failure of Texas courts so far to adequately perform their gatekeeping function vis a vis DNA mixture evidence, updating a segment from last month's edition.

The passage above from an academic article gets to the heart of the matter: Though in theory, civil and criminal courts should be applying the same standards for scientific evidence, as a general rule they only perform a true "gatekeeping" function on the civil side.

In the past, Grits has been a tad more generous, attributing this outcome to lopsided disparities in resources on the criminal side, while civil disputes are often more equally matched in terms of both sides' ability to hire independent experts, etc.. But the reflexive posture of admitting anything the prosecution wants until their hand is absolutely forced - even disputed evidence like bite marks, hair microscopy, and black-box DNA mixture analyses - after a while becomes hard to deny.

The other segment on forensics in tomorrow's podcast discusses Texas' junk science writ, assessing a law professor's comparison between our version and California's. Left unsaid in that segment is that the reason we need habeas corpus remedies for bad science on the back end of the process primarily stems from judges' failure to perform a meaningful gatekeeping role on the front end. Well, I suppose now it hasn't been left unsaid.

Has Texas fixed the death penalty?, and other notable Texan commentary on the justice system

A few items, while I have you:

Views of the system from the perspective of the punished
These recent opinion pieces from Texans with experience on the wrong side of the justice system merit Grits' readers attention:

• Beverly Harrison, The Marshall Project, "A Decades Old Conviction Cost Me My Post-Retirement Job"
• Jayson Hawkins, The Marshall Project/Vice, "Sentenced to Life in Prison: And a Job Making Furniture"
• Jorge Renaud, Texas Observer, "The Road to Huntsville"

Discussing drug abuse and families
Meanwhile, with tens of thousands of drug overdose deaths making national headlines, Texans Care for Children this fall in Austin will launch an interesting-looking three-part discussion series on drug abuse, families, and public policy. For state-level policy folk in Texas, it's a good time to be thinking about this sort of big picture analysis more than a year out from the next legislative session. Between Gov. Abbott vetoing Good Samaritan legislation in 2015 - and the Lege declining once again in 2017 to pay for expanded treatment services through reduced incarceration of drug users - it's pretty clear most Texas pols don't yet feel comfortable addressing drug abuse through any but a tough-on-crime lens. Advocates will need new strategies, alliances and messages to get much further. 

Is Texas on the way to fixing its death penalty?

Finally, Pat Metze, a Texas Tech law prof, looked at criticism of Texas' death penalty system in a recent law review article and thinks the Legislature is on its way to solving the problem!! As luck would have it, your correspondent worked on many of the initiatives he's lauding - mostly innocence-type work - which he frames as responses to concerns raised in a 2013 American Bar Association report that was critical of several aspects of Texas' capital-punishment system.

But the Legislature didn't view its innocence work through a capital frame, and it's at best a stretch to attribute anything they did as a response to critics of capital punishment. By contrast, most of those innocence reforms could only be passed because they weren't framed as specifically affecting capital cases.

For the most prominent example, the Texas state fire marshal ultimately was happy to correct erroneous arson science and conduct a comprehensive review of disputed cases. But initially, debates over arson science were framed around the case of Todd Willingham, who was executed based on flawed arson testimony in the face of his claims of innocence. The resulting culture-war brouhaha nearly caused then-Gov. Rick Perry to disband the Texas Forensic Science Commission, the FSC's general counsel revealed to a recent national gathering. That pattern has been consistent - reforms can often happen in Texas if they're not about the death penalty or other hot-button culture-war topics - which is why it's odd to portray Texas as acting specifically to correct flaws in the capital punishment system.

Given that the US Supreme Court has taken to bench slapping the Lone Star State two or three times per year on death-penalty matters (e.g., Moore, Buck, etc.), the perspective Prof. Metze offers here definitely qualifies as a revisionist view. A capital-attorney friend who'd seen Metze's article told me it made her "blood boil."

In that light, I teasingly asked Grits' contributing writer Jennifer Laurin, one of the authors of the 2013 ABA report, whether this means "Mission Accomplished!" She responded, "The short answer is that Texas has made big strides on innocence reform, and continues not to touch anything that redounds to the exclusive benefit of capital defendants. And actually I think the analysis in the article bears that out." More on this later, for sure, but I wanted to flag the link.

Midland DA touts drug-reform themes

The Brooklyn District Attorney's race will be decided today in a Democratic primary which has been most notable for the various candidates competing with one another for the mantle of Reform Prosecutor. Check out this remarkable video produce on the prosecutor's role, released leading up to the election:


But debates over criminal-justice are bipartisan, and so are demands that prosecutors change their priorities. As an example, check out this op ed by the District Attorney in Midland, Texas, Lauren Nodolf, calling for prioritizing prosecution of serious crime and diverting drug offenders out of jails and prisons. She wrote:

warehousing non-violent offenders is costly to Midlanders, does not contribute positively to public safety, and does not lead the perpetrator to take responsibility for their actions. Violent offenders, on the other hand, need to be tried expediently and incarcerated sufficiently to protect the community.

Long-time readers will recall that former Midland County Sheriff Gary Painter was the state's foremost advocate of regional narcotics task forces, which were defunded and closed by Gov. Rick Perry after a series of scandals beginning with the Tulia drug stings. Those entities were all about rounding up the maximum number of low-level drug users for incarceration. So the fact that the DA in Midland opined in the newspaper against "warehousing non-violent offenders" demonstrates the terms of debate are changing around the justice system and prosecutors' role. Fifteen years ago, this would have been a highly controversial stance; today it's almost a snoozer.

There were one or two odd notes in the column, including a reference to "rising crime rates." I say "odd" because index crimes declined from 2015 to 2016 at both the Midland PD and the Midland County Sheriff. And the rate at which index crimes were reported to Midland PD, in particular, declined by 25 percent from 2010 to 2016. (Source)

And, to be sure, Nodolf's reformist tendencies pale compared to some of the suggestions by DA candidates in Brooklyn. I don't want to overstate the case. But overall, it's remarkable that a Midland Co. DA would feel any inclination to tip her hat to reform themes, and evidence that prosecutors around the country are reacting to reform proposals much differently and more thoughtfully than in the past.

Natural experiment tests rehabilitation potential for teen killers

Source: TCJC Twitter feed.

Grits has been thinking a lot lately about the question of whether adult justice systems sufficiently address the needs or adequately assess the likelihood of rehabilitation for offenders in 17-25 years old range, particularly after our Reasonably Suspicious podcast segment on the topic last month.

During the 17-25 year old period, and particularly before age 21, neuroscientists now understand that young brains have yet to finish developing, especially as it relates to cognitive reasoning and impulse control. And some national experts have persuasively argued that the justice system needs to more effectively accommodate those differences in brain function.

So, in that vein, Grits was interested in this story out of the Phildadelphia Inquirer (9/7) detailing the fates of 70 released murderers who committed their crimes as young men and women. Like the defendant in Kentucky, they had served sentences for heinous crimes committed when they were teenagers. But they are now being released some two generations later. Here's how the story opened:

For the first time in a generation, Pennsylvania prisons are releasing convicted murderers by the dozen. 

In the last year, 70 men and women — all locked away as teens — have quietly returned to the community after decades behind bars. They're landing their first jobs, as grocery store cashiers and line cooks, addiction counselors and paralegals. They are, in their 50s and 60s, learning to drive, renting their first apartments, trying to establish credit, and navigating unfamiliar relationships. They're encountering the mismatch between long-held daydreams and the hard realities of daily life. 

These are the first of 517 juvenile lifers in Pennsylvania, the largest such contingent in the nation, to be resentenced and released on parole since the Supreme Court decided that mandatory life-without-parole sentences for minors are unconstitutional.

The struggles facing these parolees perhaps are to be expected. If you'd been incarcerated since Smokey and the Bandit was in theaters, you'd face difficulty adjusting to 21st century America, as well. Regardless, "So far, not one of the 70 has violated parole."

Perhaps that should be expected, too. As it happens, murderers have among the lowest recidivism rates. And the judge out of Kentucky whom we discussed in our podcast cited this study in his ruling to say that, "ninety (90) percent of serious juvenile offenders age out of crime and do not continue criminal behavior into adulthood."

This represents a lot of folks. This summer, the Urban Institute issued a study which, the Marshall Project reported, found that two out of five inmates serving very long sentences committed their crimes before age 25. (See Grits' earlier discussion.)

There are a few different ways one could take into account these differences in youthful brain chemistry, and likely more Grits hasn't considered yet. My old pal Vinnie Schiraldi has suggested creating a separate third system to deal with 18-25 year olds (it'd be 17-25 in Texas, where we have not yet raise the age of adult culpability to 18). Elsewhere, some states like Connecticut are considering expanding their juvenile justice system to cover offenders up to age 21. Alternatively, Schiraldi has privately suggested to Grits that perhaps certain enhancements, barriers to reentry, etc., could be eliminated or reduced for younger offenders since their likelihood of rehabilitation is so much higher.

I'm sure there are other ways to skin this cat. We're on the front end of a national conversation about these topics spurred by recent scientific advancements. The suggestions for how to accommodate this new information remain prefatory and barely formed. But over time, as scientists better understand the human brain - and as the justice system slowly but surely adapts that knowledge to inform its various functions - it's not difficult to imagine major implications for these observations about brain development in a justice system based on identifying and punishing bad decisions, even if we can't say for sure what they'll be yet.

That said, inevitably, someone's parole will be revoked among this Pennsylvania cohort. The road to reentry is too difficult (as this article effectively described) and the array of humanity caught up in the system is too diverse for it to never happen. But prisoners who've served decades until they're now old men (and to a less common extent, women), especially if they had good behavior records while inside, are remarkably safe release risks compared to many younger inmates convicted of less serious offenses.

A rare opportunity moment for bail reform

When Grits first began focusing on inequities in bail and pretrial detention back in the mid-aughts, insiders understood I was writing about real issues that needed addressing. But the response from the MSM and the public amounted to crickets chirping. Nobody outside of the insiders - who had to grapple with the daily reality of a failing system, even if the outside world hadn't noticed - seemed to care about locking defendants up for no other reason than that they were too poor to pay a private bail bondsman's fee.

Back then, when I'd try to get reporters interested in these topics, they'd inevitably tell me, "But the bondsmen do the job for free, they're the free market solution to pretrial release." I tried to point out that it's not free if their clients are housed in jail at taxpayer expense until they choose to use their services. Plus, most absconding defendants are recaptured by law enforcement (at traffic stops, etc.), not bail agents. On their face, the bail-does-it-for-free arguments never made any sense. They fall apart the moment you actually put numbers to any sort of cost model. But those simplistic arguments kept reporters from taking on these issues, and those of us criticizing money bail were portrayed as unrealistic and extremists.

Pero no mas. Today, there's more interest in reforming money bail systems in the United States (only us and the Philippines still engage in this outdated practice) than at any time in living memory. This morning, my browser tabs are full of bail-related news stories and media analyses, documenting reforms from red and blue states alike. As those of us in Texas await oral arguments at the federal 5th Circuit Court of Appeals on Harris County bail litigation (October 2nd), it's worth rounding up some of this coverage for context:

For an overview, check out this Washington Post editorial, "Fixing the unfair bail system is worth the costs." FWIW, the District of Columbia has already successfully gotten rid of money bail in most cases.

In New Mexico, voters approved bail reform but prosecutors are seeking to undermine it by overusing preventive detention mechanisms. So far, only 11 of 95 preventive detention requests have been approved, the rest denied, which is being taken as evidence that prosecutors are asking for detention in cases where defendants deserve release.

Here's a local story about bail-reform efforts in St. Joseph County, Indiana.

Wired magazine has a story about bail-reform efforts in New Jersey.

In California, promising bail reform efforts blew up and won't be revived again until 2018.

Because women are disproportionately impacted, some groups are seeking to put their stories at the center of the bail reform movement. A Mother's Day action this year in which advocates bailed out moms so they could be home with their kids continues to resonate with positive reactions.

For others, of course, it's an issue primarily for people of color.

However, conservatives also support bail reform because, jailing poor defendants is a "stale practice that isn’t adapting to modern realities" and "a costly burden for local governments."

At Fox and Hounds Daily, a retired 32-year Idaho sheriffs deputy makes the case that, "Bail reform restores basic American values of freedom and justice."

Finally, this strange column in the Houston Chronicle repeats the free-market-does-it-better trope and claimed that eliminating money bail for misdemeanors in Houston had "eliminated 80 percent of the private bail bonds business," quoting a local bail agent. Grits would have to see that figure documented independently to believe it - it sounds like overstated hype.

But there's no doubt reform has cut into the bail industry's business. Now it's time to finish the job. Any way you slice it, the bail industry's anachronistic economic interests damage the public weal. Their main counter-argument seems to be, "Corporate welfare made us rich, don't end it." But judging from the tenor of the national conversation going on right now, that sentiment doesn't seem as convincing to opinion leaders and the public as it did back when your correspondent began writing on the subject.

Federal prisoners stranded in Harvey, Harris County inmates released into it

When disasters like Hurricane Harvey strike, inmates in coastal prisons and jails are sitting ducks unless the authorities in control of their fates take action to protect them.

Downtown Houston on the day
jail inmates were summarily released

TruthOut has emails from inmates in a flooded federal prison in Beaumont showing inmates stranded and scared in desperate conditions. And in Houston, the county jail allegedly released prisoners from a drug treatment facility at the height of the flooding without money, clothes, or medication because officials couldn't feed or supervise them.

After this episode, there really won't be any excuse going forward for coastal jails and prison units to have anything but fully operational disaster plans, including privately run units. That should have been the case after inmates were stranded during Hurricanes Katrina (New Orleans) and Ike (Galveston). But now it would be clearly negligent not to do so.

The Texas Department of Criminal Justice appears to have done a good job evacuating inmates in harm's way. But the federal Bureau of Prisons clearly dropped the ball, and the Texas Commission on Jail Standards surely should review policies on releasing inmates into hazardous conditions.

It's a safe bet Harvey won't be the last time these issues come up.

RELATED: Add accountability to rehab, reentry arguments for inmates' access to email.

MORE: According to the Houston Press, federal officials disputed the extent of the flooding reported in Beaumont.

Year-to-date crime is down, but should reformers tout it?

A new analysis finds that year-to-date murder rates are down for 2017 - see a report from the Brennan Center and coverage from Vox. According to the think tank:

The 2017 murder rate is projected to be 2.5 percent lower than last year. This year’s decline is driven primarily by decreases in Detroit (down 25.6 percent), Houston (down 20.5 percent), and New York (down 19.1 percent). Chicago’s murder rate is also projected to fall, by 2.4 percent. The 2017 murder rate is expected to be on par with that of 2009, well at the bottom of the historic post-1990 decline, yet still higher than the lowest recorded rate in 2013.

The news will be widely heralded as a correction to slight upticks in violent crime in 2015 and 2016, casting doubt on the notion that the last couple of years represent some new wave of violence that justifies references to "American carnage," etc.. So perhaps Brennan's analysis will provide an antidote to those misguided memes.

However, crime data such as these can only be meaningfully interpreted over the long term; short term blips tend not to tell us much, whether crime is going up or down. Grits feels the same way about Brennan's analysis as I did about a similarly themed Houston Chronicle story in July, which inspired a blog post titled: "Of journalists, drunks, lamp posts, and Year-To-Date crime data." Read that for more on my complaints about YTD crime data.

Bottom line: Criminologists have shown what veteran crime reporters have known for years: that such short-term analyses of crime data don't tell us very much and are often wrong. They remain popular, though, because daily media outlets have news holes to fill, August is a slow news month, and crime reporting remains a staple. It may not be probative data, but it's new. And new fulfills a certain need for content producers in both traditional and digital media.

In a sense, I'm glad Brennan has taken on this project. Doing it every year provides some uniformity to the analyses over time, whereas otherwise the data are framed by whichever reporter from some random news outlet thinks to do the story first. But I still question the overall value of year-to-date crime data analyses, and worry that Brennan's project improperly validates their use.

Reformers should take opportunities like this one to critique misguided uses of crime data during periods when the data "help" us - as when crime is declining - because bringing it up for the first time when crime rises will raise understandable skepticism as to motive.

Grits has been at this for quite a while and, in my experience, error helps nobody in the long run. The benefits that come from relying on bad data which appear to "help" my side are far outweighed by the cost of relying on it when it runs the other direction. Crime data are used by demagogues to inspire panic, and insisting on their proper, in-perspective use, whether that helps or hurts one's "cause," in the long run will improve the culture surrounding these debates and lead to better outcomes.

Critiquing the misuse of data only when it damages your "side" reduces one's credibility. Criminal-justice reformers would be wise not to fall into that trap.

RELATED: From Slate/Fair Punishment.

Texans opine at NIST "Error Management Symposium"

Check out video from the National Institute of Standards and Technology "Error Management Symposium" of presentations by Peter Stout from the Houston Forensic Science Center and Lynn Garcia of the Texas Forensic Science Commission:


See all the other speaker videos here. And here are their Power Point presentations:

• Peter Stout
• Lynn Garcia

This newsclip included quotes from Garcia's speech.

Interesting note from Stout's presentation: He said the HFSC has gotten along well with the Houston Police Department, but the police union had been the source of most of the friction. The union v. crime lab tension hadn't occurred to me before.

Garcia suggested that the adversarial legal system stands at odds with improving forensic science, citing the FSC's experience with the Todd Willingham arson case as a prime example. Her description of the DNA mixture issues we've been discussing recently begins at about the 1:41:00 mark.

RELATED: Forensic bite mark analysis takes another hit in an article using its failures to highlight "the weak scientific culture of forensic science and the law’s difficulty in evaluating and responding to unreliable and unscientific evidence."

Urban Institute: Longest prison sentences getting longer

A new study from the Urban Institute on the causes of mass incarceration (see coverage from Vox and the Marshall Project) confirms some of the points Grits made this spring rebutting suggestions by Fordham law prof John Pfaff that the criminal-justice reform movement must shift its focus. Pfaff disputed reformers attention to long sentence lengths, claiming those who decried them misunderstood the true sources of mass incarceration. Here's what I'd written in April in response:

Pfaff discovered through analyzing state court filings that the average length-of-stay for people released from incarceration is going down, taking this to mean that long sentences aren't a major cause of mass incarceration. But those numbers are averaged and mask a more nuanced dynamic. Really, there are two categories of prisoners: Short-timers who account for the churn, and long-timers who have mostly been convicted of violent offenses and have quite long sentences. 

In FY2015, for example, the 70,311 people released from TDCJ served an average of 4.5 years on an average sentence of 8 years. But those are averages. Many sentences are shorter, and the numbers are driven up by long sentences for a smaller number of violent crimes - a fact which complicates his "ignore sentence length" suggestion quite a bit. A whopping 63 percent of people convicted of violent offenses in TDCJ were in 2015 serving sentences longer than 10 years. By contrast, just 12 percent of new admissions had received sentences for longer than a decade. So if Pfaff wants reformers to focus mainly on violent offenses, they'd have to consider sentence length much more than he suggests.

The Urban Institute explored that path of inquiry even further. They "looked at the 10 percent of the prison population in each state serving the longest terms ... In most states, the average time served by the top 10 percent rose much more sharply relative to the rest of the prison population." Further, they found that these were the results of policies enacted by Legislatures: "These steep increases over time and the variation across states points to the power of state-specific policy decisions."

So the claim that reformers are wrong to focus on length-of-stay doesn't hold water. Ditto for the suggestion that reformers should abandon efforts to reduce sentences legislatively in favor of focusing on District Attorneys and the rate at which they prosecute cases. Length of stay matters, says the Urban Institute data, and so does legislative policy.

Both Pfaff and the Urban Institute use these data to argue that reformers should focus on violent offenders to reduce mass incarceration. But Grits would in response iterate that Texas' experience argues for a more catholic approach. As I'd written in April:

Not only is Pfaff wrong to belittle efforts to reduce penalties for nonviolent offenses, he's also wrong that such efforts preclude focus on reducing incarceration of people convicted of violent crimes in state prisons. In Texas, the state increased release rates for violent offenders at the same time the Legislature was focused on reforms aimed at nonviolent crimes. It's simply not been my experience that the rhetorical problems he hypothesizes from the ivory tower play out that way in the real world

The uptick in parole rates for violent offenders in Texas had a number of causes. For example, Texas' 2007 reforms created new "Intermediate Sanctions Facilities" which, while much-derided by Andy Kahan and certain probation directors, have performed an important function of reducing the proportion of parolees revoked back to TDCJ to serve their full sentences based on petty violations or low-level crimes. Because those intermediate sanctions are available for most offenders, and because having a single, statewide parole agency contributes to a consistent, statewide policy, the use of ISFs has contributed to reduced revocation rates on the parole side to a much greater degree than for Texas probation departments.

Moreover,  the '07 reforms included money for various treatment programs, and there existed certain classes of offenders who weren't being paroled because they hadn't undergone treatment while inside. Once they got it, the parole board released them as they'd told the Legislature they would. (Not everyone believed that would happen.)

So a push that on paper was about "nonviolent" offenders turned out to adjust practices throughout the system that impacted incarceration for some people convicted of violent offenses as well. And since crime declined steadily in Texas throughout the period we're discussing, there's no reason to believe that this sort of managed reduction in incarceration levels threatened public safety.

Bottom line, to reduce mass incarceration, there are two distinct categories of prisoners which must be addressed and which each require different strategies (hopefully executed simultaneously). There are 1) a small number of violent offenders receiving increasingly extreme sentences, according to the Urban Institute's findings, and 2) a vast number of low-level offenders, many of whom probably shouldn't be sent to prison in the first place, who contribute to "churn" in the justice system, filling county jails and stacking up third-degree and state-jail felonies.

That second category is where the most important short-term reductions may be found. Again, from my April review: "the quickest way to reduce admissions is to reduce penalties along the margin between the lowest-level felonies (in Texas, state jail felonies), and higher-level misdemeanors (in Texas, Class As). These are almost entirely nonviolent drug and property offenses." But's it's also true that, in the long run, to get to mid-double digit reductions in incarceration would require lowering top-end sentences for people convicted of violent crimes.

Mass incarceration does not have any one cause: Not just long sentences, not just mis-use of prosecutor discretion, not just erosion of Fourth Amendment rights in public interactions with police, not just false convictions of innocent people, but all of these and more have contributed to the problem. So walking back one piece of it probably will never amount to a cure-all.

To reduce mass incarceration through the political process requires understanding all these different contributing factors, then engaging opportunistically whenever it's possible to address a piece of the problem. Texas isn't California, where a) a federal judge mandated incarceration reductions and b) reformers could put their own proposals on a statewide ballot for an up or down vote. In Texas, these reforms must occur through the democratically elected Legislature, and even in the 21st century, politics there remains the art of the possible.

It would be nice if there were a silver bullet - reduce sentence lengths, rein in rogue prosecutors, combat discriminatory policing - but each of these by itself is a partial measure. It took 40 years for things to get this bad. There's no quick fix here. No easy answers.

Black-box DNA mixture analysis method used in NYC turned out to be flawed

Today the New York Times and ProPublica published a joint investigation by Lauren Kirchner into the use of DNA mixture evidence in New York titled "Thousands of Criminal Cases in New York Relied on Disputed DNA Testing Techniques."

The story covered some of the same ground as did a recent segment in Just Liberty's Reasonably Suspicious podcast discussing a DNA mixture case out of the Tyler 12th Court of Appeals here in Texas.

The big news out of the ProPublica story: After years of keeping its DNA-mixture analysis algorithms secret, the New York City lab finally had to reveal its source code (aka, the "FST code") to the defense and it didn't pass muster:

Again, the government refused to hand it over on the grounds that it was a “proprietary and copyrighted” statistical tool owned by the City of New York. 

The federal judge granted the defense access to the FST code in June 2016 under an order that bars wider disclosure. (The medical examiner’s office denied ProPublica’s public records request for the code, citing its “sensitive nature.”) 

Nathaniel Adams, a computer scientist and an engineer at a private forensics consulting firm in Ohio, reviewed the code for the defense. He found that the program dropped valuable data from its calculations, in ways that users wouldn’t necessarily be aware of, but that could unpredictably affect the likelihood assigned to the defendant’s DNA being in the mixture. 

“I did not leave with the impression that FST was developed by an experienced software development team,” Adams wrote in an affidavit. Pending more rigorous testing, “the correctness of the behavior of the FST software should be seriously questioned.” Characterizing Adams’ criticisms as merely stylistic rather than substantive, the lab told ProPublica that FST provided reliable calculations. 

Technology consultants wrote the software code for FST, according to a spokeswoman at the medical examiner’s office. Few, if anyone, at the lab or on the state’s DNA Subcommittee had the expertise to double-check the software, said a scientist in the lab who worked on the techniques who asked to remain anonymous for fear of career repercussions. “We don’t know what’s going on in that black box, and that is a legitimate question,” the scientist said, adding that evidence in older cases should “absolutely” be retested in light of growing questions about FST. “As a scientist, I can’t say no.”

The issue of proprietary "black box" software interpreting DNA mixture evidence mirrors the situation with private vendors used in Texas like STR-Mix and TrueAllele, as discussed on the Reasonably Suspicious podcast.

When New York's proprietary software was picked apart by the defense, they found previously unrevealed errors and flaws. Who's to say that won't also be the case with proprietary private software? The likelihood surely is greater than not.

Courts should allow defense experts access to the source code if they're going to admit DNA mixture evidence from these black box systems. There's just too much recent error and loads of evidence that the math and science involved in these black-box interpretations are well beyond the ken of most analysts seeking to interpret them.

Here are a few other tidbits from the ProPublica/Times story which add new information to the discussion here in Texas:

The FBI in May claimed to have validated STR-Mix for use in DNA mixtures involving up to five people. But having a law enforcement agency "validate" the method is far different from having validation from independent sources which would satisfy defense experts. In one famous case out of upstate New York, STR-Mix and their main competitor, TrueAllele, tested the same evidence and came back with different results.

"In the past three years, flaws in DNA methods have temporarily shut down testing in public crime labs in Austin, Texas, and Washington, D.C."

“Lab analysts 'make it seem like it’s a completely objective process,' said Bicka Barlow, a lawyer in California with a master’s degree in genetics and molecular biology. 'But I’m 100 percent convinced that there are many people who are incarcerated who were convicted with DNA evidence who are innocent.'”

Reconceiving the prosecutor's role, the jury's Brady rights, and other missives from the ivory tower

Here are a few academic articles recently posted to SSRN which caught Grits' eye and may merit readers' attention:

• "The Jury's Brady Right." Arguably, defendants aren't the only ones harmed when the government conceals exculpatory evidence against them. This article considers the situation from the jury's perspective.
• "Mental Health and False Confessions." In an era when jails are the largest mental institutions in nearly every community, this aspect of false confession research takes on particular importance.
• "Reconceiving the Standard Conception of the Prosecutor's Role." The prosecutor's obligation to "seek  justice" reflects "the law's best impulses," but in practice is "vague, contradictory, improperly incorporates undefined moral concepts into legal duties, and does not reflect the work that prosecutors do," this paper argues.
• "Drug Treatment Courts and Their Progeny in the U.S.: Overcoming Their Winding Trajectory to Make the Concept Work for the Long Term." Texas is struggling with this problem. Gov. Perry ramped up drug courts' use, but they don't scale up well and are too often used on low-risk offenders who don't need such high levels of supervision. There's a need to discuss a vision for them going forward.
• "Feeding the Machine: Policing, Crime Control, and Algorithms." From the abstract, "Police are not simply end users of big data. They generate the information that big data programs rely upon. This essay explains why predictive policing programs can’t be fully understood without an acknowledgment of the role police have in creating its inputs." So true. Good example was systematic underreporting of deaths in police custody to exclude one quarter of police shootings in Texas over the last decade.
• "Marijuana Legalization and Pretext Stops." This paper explores whether "legalization [could] take away some of the legal tools and policing incentives that fuel pretextual stops?", noting that "To date, the relationship between state marijuana legalization and the Fourth Amendment has received little attention in comparison to issues like federalism or taxes." In Texas, our Attorney General has begun to similarly explore whether open-carry gun laws might preempt certain Fourth Amendment exceptions. Interesting subject.
• "Fines, Fees, and Forfeitures." "The use of fines, fees, and forfeitures has expanded significantly in recent years as lawmakers have sought to fund criminal justice systems without raising taxes. Concerns are growing, however, that inadequately designed systems for the use of such economic sanctions have problematic policy outcomes, such as the distortion of criminal justice priorities, exacerbation of financial vulnerability of people living at or near poverty, increased crime, jail overcrowding, and even decreased revenue."

Add accountability to rehab, reentry arguments for inmates' access to email

Grits has long believed that there's little big-picture risk and much benefit from the federal system of allowing prison inmates limited access to monitored email services. At first, this view stemmed mainly from a desire to let inmates stay in touch with their loved ones, which helps facilitate both rehabilitation and successful reentry. But Hurricane Harvey shows that prisoners' email can also serve as an accountability mechanism by giving voice to eyes and ears inside the prison walls.

State prisoners in harms way were evacuated during the recent floods (no clear, comprehensive picture yet of what happened in county jails), but federal prisoners apparently were not, including several privately operated facilities and a federal prison in Beaumont.

Regarding the latter, the federal Bureau of Prisons told the Houston Chronicle that "although the facility's water source was compromised and had intermittent power, it was 'adequately maintained with generator backup power when needed. There is an adequate food and water supply for both inmates and staff.'" But the Chronicle obtained emails from prisoners family members which told a different story. One described:

a scene where a fellow inmate passed out Thursday night because of malnutrition; inmates haven't had a warm meal in more than five days, he said. Because of the water shortage, four portable toilets were brought in to service the man's building. No chemicals were placed in the toilets, which have already been "topped off" with waste, the man said. 

"Save me Jesus," the man said in an email. "I never thought nothing like this would happen in prison."

From the family member who shared the email: "Animals are treated better then those men. They evacuated all those animals and made sure they were safe, why can't they make sure those men in those units are safe, fed, healthy with clean clothes and enough amount of water? They are people too." The 

If this prisoner's account is accurate and complete, then federal inmates in Beaumont experienced nothing like the horrors that went on in New Orleans with inmates during Katrina. But the rosy picture portrayed by the feds wasn't entirely true. And without prisoner access to email, there would be no credible source to dispute inaccurate government claims.

Sometimes the government misrepresents reality to offer only a self-interested perspective, and the closed nature of prisons makes them especially good at concealing their problems from the outside world. Providing electronic communications access to prisoners can add first-person narratives to the mix to help inform those on the outside what goes on inside.

Texas inmates can pay to have incoming emails printed out and given to them, but cannot send outgoing email.

So, we may add "holding government accountable" to "facilitates rehabilitation" and "improves reentry prospects" among the best argument for providing inmates limited access to monitored email, as has long been successfully accomplished in the well-established federal system.

Social costs of incarceration in Houston are high

For Grits' ever growing to-read pile: "The Criminal and Labor Market Implications of Incarceration" (2014) studying Harris County.

ABSTRACT. This paper investigates the pre- and post-release impacts of incarceration on criminal behavior, economic wellbeing and family formation using new data from Harris County, Texas. The research design identifies exogenous variation in the extensive and intensive margins of incarceration by leveraging the random assignment of defendants to courtrooms. I develop a new data-driven estimation procedure to address multidimensional and non-monotonic sentencing patterns observed in the courtrooms in my data. My findings indicate that incarceration generates modest incapacitation effects, which are offset in the long-run by an increased likelihood of defendants reoffending after being released. [emphasis added] Additional evidence finds that incarceration reduces post-release employment and wages, increases take-up of food stamps, decreases likelihood of marriage and increases the likelihood of divorce. Based on changes in defendant behavior alone, I estimate that a one-year prison term for marginal defendants conservatively generates $56,200 to $66,800 in social costs, which would require substantial general deterrence in the population to at least be welfare neutral.

H/T: John Pfaff.