Monday, January 16, 2017

Exhibit A: Austin PD DNA lab mess argues for independent crime labs

What a breathtaking mess the managers of Austin PD's now-closed DNA lab finds themselves in, and how fortunate for former Chief Art Acevedo that he picked up a new gig in Houston before all the details of the story came out. This writer has criticized APD under Acevedo for focusing too much money and attention on patrol while downplaying the importance of investigations, support staff, and civilian functions like the crime lab. All those issues are now coming home to roost in the form of Austin PD's DNA lab disaster.

The lede to the latest Statesman story on the Austin DNA lab fiasco offered examples of red flags which should have prompted earlier review:
Long before the Austin Police Department’s DNA crime lab was shuttered, prosecutors and defense lawyers were second-guessing its work. 
In 2009, prosecutors raised red flags about DNA results in a rape case, later dismissed the charges against the suspect and eventually hired two private labs to double check the department’s results before refiling them. 
In 2015, a rape suspect’s trial expert said the lab’s results were so riddled with corrections and bad math that the defense should order new tests. 
And in early 2016, prosecutors hired an expert to review 17 criminal cases for potential problems. That expert found mistakes in all of them. 
The story concluded:
Every case the APD lab touched needs to be reviewed, [defense attorney Darla] Davis said. 
“This has been bad,” she said. “It’s bad for both sides. It’s a catastrophe for the whole criminal justice system.”
She's not overselling it, this is a mind boggling mess. If I were a chief with a crime-lab attached to my department, I'd be looking to offload it to some other agency with scientific expertise, or as an independent entity, like in Houston.

Let's call this story Exhibit A in the case for why cops shouldn't be in charge of scientists.

'Money is coined liberty': Bail where economic populism meets the justice system

Sitting in a czarist prison, Fyodor Dostoevsky wrote that "money is coined liberty." He could have been referencing 21st century American bail systems - long ago abandoned at the federal level and nearly everywhere else on the planet - in which one defendant may remain in jail while an identically situated person goes free, based entirely on who has access to cash.

We're still waiting for soon-to-be-filed legislation aiming to reform Texas' bail system. Such legislation would implement recommendations from the Texas Judicial Council to move away from money bail toward the use of risk assessments (to a greater or lesser extent, as remains to be seen) in determining whether to incarcerate people pretrial. In the meantime, though, the topic of bail reform percolates continuously in other states and at the local level. Here are a few examples of which Grits readers should be aware:

Incarceration rates and crime: A counter-intuitive relationship

The lock-em-up logic of mass incarceration holds that prison expansion keeps more criminals off the street and therefore reduces crime. But that's an hypothesis, not a fact. Luckily, differing incarceration policies among states in recent years have supplied a natural experiment to test the theory, which turns out to be full of holes. In fact, a new analysis from Pew analyzing the state-by-state data found that jurisdictions which reduced incarceration most saw higher drops in crime rates.

Crime has declined across the western world and throughout the United States since the 1990s, but at the state level there have been variations. From 2010 to 2015, according to Pew, 35 states saw reductions in incarceration rates while 44 states saw reductions in violent and property crime.

Digging more deeply, the states which reduced incarceration most saw higher crime reductions. "In the 10 states with the largest imprisonment declines, the crime rate fell an average of 14.4 percent, compared with 8.1 percent in the 10 states with the biggest growth in imprisonment."

Of the 10 states with the largest imprisonment reduction, Texas' rate remained by far the highest. Still, Texas' imprisonment rate declined 12.9 percent from 2010 to 2015, emblemized by the closure of three prison units, while our crime rate declined 23.3 percent.

Pew offered this understated conclusion: "The lack of a consistent relationship between the crime and imprisonment trends reinforces the findings of the National Research Council and others that the imprisonment rate in many states and the nation as a whole has long since passed the point of diminishing public safety returns." Grits would put the lesson from their research more plainly: The evidence shows incarcerating fewer people does not correlate with increased crime and in fact, correlates more strongly with larger crime reductions.

Saturday, January 14, 2017

Corrections committee contemplates non-violent drug offenders

"The original intent of state jails fell apart," according to the section of the Texas House Corrections Committee's interim report (pp 43-61 of pdf) on nonviolent drug offenses, because the Legislature prioritized incarceration for addicts over treatment.

Who is nonviolent?
From the committee's perspective, "Nearly 80 percent of individuals in the Texas criminal justice system have substance abuse problems. Substance abuse is by far the most common crime-related problem among offenders. Some individuals enter the justice system because of a drug charge. Others enter on other charges, but drugs are clearly implicated." The report acknowledged the penny-wise-pound foolish flaw in such thinking: "if you are incarcerating the same person over and over again, the costs to actually rehabilitate would be less than incarceration."

Grits should mention here that Fordham law professor John Pfaff has been pushing back on this meme that addiction and the drug war drive crime and mass incarceration. He tends to blame reformers like New Jim Crow author Michelle Alexander for overstating the role of the War on Drugs in promoting the modern prison state. Pfaff points out that offenders convicted of violent crimes far outnumber inmates convicted of drug offenses in US prison systems, a pattern that also holds for Texas. But he poo poos the idea that drug abuse is a causal factor for other crimes.

By contrast, in Grits experience, the idea that drugs are responsible for most crime has historically been a law enforcement meme that reformers had to respond to, even if now Prof. Pfaff would blame us for engaging in the debates of the day without benefit of 20/20 hindsight. Moreover, there's little doubt drugs play a role in some portion of violent offenders' cases. In Dallas, for example, the interim chief blamed their recent murder spike in part on armed raids of drug houses by competing cartel factions. And back when murder rates were super high in the early '90s, much of the carnage stemmed from drug dealers feuding with one another over turf. So some unquantified amount of violence certainly does stem from the drug war (though what ratio, Grits cannot form even an educated guess).

Indeed, the committee's definition of "violence" may be more expansive than Prof. Pfaff's. They identified 46 low-level drug possession crimes on the books, but concluded the list by opining that, while the laws "are technically considered non-violent, they are not emotionally non-violent."

Whatever one's definition, non-emotional violence has declined over time in Texas, while low-level drug convictions continue to rise. "While the overall number of people sent to prison dropped between 2011 and 2015, the number of people sentenced to state jail for drug possession was two percent higher in 2015 than in 2011. It costs the state more than $67 million to incarcerate people in state jails for low-level drug offenses in 2014."

State jails evade prison oversight
The committee heard testimony from a few people who thought state jail terms for drug offenders should be lengthened so that (mostly nonexistent) treatment programs will have time to work. But the committee wasn't interested in the extra expense. They also raised in passing an interesting notion Grits hadn't considered in years - that state jails were created as a separate entity from the formal prison system in order to take these prisoners out from under prison oversight litigation:
An interesting side note: one of the reasons the state jail system was created was to ease overcrowding in the prison system and the county jails. But the fact that they are meant for short-term confinement means that they do not fall under Ruiz constraints. Lengthening the confinement period could result in future litigation revolving around these facilities.
I'd forgotten about that distinction. Grits tends to agree that state jails are a failed experiment and the original intent behind them was long ago supplanted by the state's 90s-era incarceration fetish. At the end of the day, promises of treatment and rehabilitation were a fig leaf to justify building new beds that wouldn't be subject to prison oversight litigation. One could add, those who do not learn from history are doomed to repeat it - the intermediate sanctions facilities created in 2007 similarly would be excluded from Ruiz prison oversight regimens because of short lengths of stay. At the time, to my knowledge, no one in the advocacy community considered that element.

Recommending a path forward
The committee's recommendations on punishing drug users track some of items Grits predicted last year would rise to the fore of justice discussions this session:
Legislators should consider lowering the penalties certain felony drug charges that are considered non-violent in nature. For instance, drug activity in a school zone automatically becomes a felony, when an individual may not even be aware they are in a school zone. Specifically, charges that involve personal possession of small amounts of marijuana should be examined. This means possession ONLY, not manufacturing and/or delivering. Offenders should still be considered for a treatment program, no matter if the charge is reduced to a misdemeanor. 
Further, regarding enhancements on drug crimes:
Legislators should consider narrowing the scope of penalty enhancements, particularly offenses committed in drug-free zones. Such zones can be difficult to distinguish, especially in urban areas. Obviously, there is a difference between someone selling a controlled substance to a minor on school property, and a motorist being stopped in a school zone with a controlled substance in his car. This committee is not advocating a free pass for any offender, rather the circumstances of the violation and previous arrest records (if any exist) should be taken into account. 
They recommended funding a system set up in 2011 to incentive probation departments not to revoke petty offenders. Moreover, "Pre-trial release programs should be considered for non-violent offenders, to make room for those who need to be there."

See prior Grits coverage of other sections of the committee's interim report:

Thursday, January 12, 2017

Community service in Austin muni court no sweet deal

Payment counter at Austin municipal court
Grits was at the Austin municipal court today with someone who'd allowed a warrant to be issued for a traffic ticket when she couldn't pay. I'd convinced her that, as she was in fact demonstrably indigent, she could get the warrant withdrawn by agreeing to perform community service. That turned out to be true.

Working from a preset formula with no inquiry as to her individual circumstances, the judge demanded 37.5 hours community service for a $460 fine - nearly a full work week for a single traffic ticket. That's about $12.26 of the fine waived per hour worked. Given that the estimated value of volunteer time for nonprofits is nearly double that (vis a vis how much they can estimate its value as an in-kind contribution), plus the fact that indigent people tend to have transportation issues and family obligations that might make a full week of community service onerous, that ratio seemed low to me. I bet the low rate contributes to people not completing community service and having their warrants reissued.

For more background and context on the vagaries of community service at muni court, see ACLUTX's Know Your Rights brief on Traffic Tickets and other Class C misdemeanors in Texas.

Wednesday, January 11, 2017

Most TDCJ sex assault victims housed in just a few units, most victimized by staff

Here are a few highlights from a recent report on sexual assault in TDCJ put out by the Texas Association Against Sexual Assault and the Prison Justice League.

Their report represents a significant bit of research. They examined federal Bureau of Justice Statistics data on sexual assault in Texas prisons and sent a voluntary, confidential survey to prisoners who had self-reported sexual assaults at some point during their incarceration. This research was supplemented by correspondence with inmates who responded to the survey.

A disproportionate number (41.2 percent) of inmate sexual assault victims self-identified as LGBTQ, the survey found, confirming a pattern where inmates deemed gay or even just effeminate may be more likely to become victims.

Survey respondents reported sexual assaults at 15 prison units across the state with the majority of reports coming from three units: Estelle (Huntsville), Robertson (Abilene), and Allred (Iowa Park). A whopping 58.9 percent of respondents said they were assaulted by a staff member, which jibes with past investigations into sexual assault at TDCJ. "In 2014, 766 allegations of staff-on-offender sexual abuse and sexual harassment incidents were reported to the PREA Ombudsman by unit-level TDCJ staff." They cited a 2015 Marshall Project report showing that, nearly half the time, local prosecutors refuse to pursue cases involving staff-on-inmate sexual abuse. When they do, "Of the 126 staff members convicted of sexual misconduct or assault, only nine were sentenced to serve time."

Just as there's an argument for creating a division at the Attorney General to prosecute police misconduct to take decisions out of the hands of local prosecutors, there's an equally good argument to be made for doing the same thing when prosecuting TDCJ guards. Elected, rural prosecutors understandably are reticent to go after workers at the largest employer in town, and may feel more in common with TDCJ staff than their victims. That's a recipe for justice denied.

The federal Prison Rape Elimination Act has created new tracking and record keeping to shine a light on prison rape, the report found, but the Ombudsman function is notably underdeveloped. TDCJ employs 152 people in its Safe Prisons/PREA management offices around the state, but only one Ombudsman and an assistant to process 1,041 allegations of inmate-on-inmate alleged sexual abuse incidents across 109 facilities in 2013, and 1,467 in 2014. That's simply not enough warm bodies to perform the job properly.

The report included the following recommendations:
  • Establish independent oversight to evaluate TDCJ facilities. (Paging Michele Deitch!)
  • Halt the practice of placing sexual assault victims in solitary confinement "without thoroughly exhausting alternative protective measures."
  • Increase resources to the PREA Ombudsman office.
  • Improve the offender grievance system with better training for staff and accountability for failing to respond to victims.
  • Involve outside agencies in assessing PREA compliance.

Inside the plea mill, how bad prosecutors cause bad policing, and other stories

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

Monday, January 09, 2017

Texas' top judges hold summit to address trust in criminal justice system

Thanks to Grits contributing writer Eva Ruth Moravec for attending this event in Dallas. Grits had wanted to go but ended up at the dentist instead, so I appreciate her writing it up.

A daylong summit on race in the justice system for Texas judges recently held in Dallas was initially supposed to be 20-minute shorts aired nationally on the Public Broadcasting Service.

"But we're different here in Texas," said Nathan Hecht, chief justice of the Supreme Court of Texas at the December summit in Dallas. "We decided instead just to invite all the judges."

Personal invitations from Hecht and Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, were enough to summon 50 Texas judges out of their courtrooms on a weekday and into a heavily secured auditorium at Paul Quinn College. Total attendance at the summit was about 200.

The need for the curriculum - whether in televised shorts or taught live - arose in the wake of the fatal shooting of Michael Brown and riots that followed in Ferguson, Missouri, in 2014, Hecht said. Over the past 12 months, he said, the Conference of Chief Justices has been working on how to keep the community from distrusting courts.

"We need to be proactive about trust issues and to enhance trust," Hecht said. "We're concerned about how courts are affected by mistrust."

He opened the summit with a montage of news footage from high-profile shootings by and of police, then asked attendees to reflect quietly. Otherwise, the day was completely packed by the summit's planners, including state supreme court Justice Eva Guzman - the wife of a Houston police sergeant and daughter of immigrants - with interesting speakers.

"A single day is certainly not enough time to restore complete trust in the justice system," Guzman said, adding she hoped attendees realize how their life experiences affect how they handle things.

Keynote speaker Houston Police Chief Art Acevedo implored attendees to be courageous, bold and to "put away broad brushes. Don't be afraid to lose your job."

The theme of courage united several of the day's diverse speakers and panel participants, like Emily Thompson, a Dallas Area Rapid Transit officer who is back to work after her husband was killed in an ambush attack along with four others officers last summer.

Arielle Clarkson, a Paul Quinn student, said the strangulation of her brother by a police officer 10 years ago "shattered my understanding of what it meant to be protected by the police." She hopes to become a lawyer to address injustices.

 At St. Paul United Methodist Church in Dallas, a program called Together We Learn tries to bring the community and law enforcement together for things like basketball games so their interactions aren't always negative.

"The harsh reality is, people of color, when we see the police, we think something's wrong," Senior Pastor Richie Butler said. "We have to change perceptions and see people for who they really are - humans."

Cornell Law School professor Jeffrey Rachlinski said even the well-intended have biases and lectured on human beings' decision-making processes. He advised judges to start recording demographics and outcomes of their cases so they are more aware of disparities.

(Rachlinski's suggestion was one of two I heard throughout the day on how to improve trust in the courts; the other was an idea from Hecht for trial judges to explain their rulings.)

To demonstrate how underlying biases may affect juvenile justice, former state judge and professor F. Scott McCown moderated a panel of experts who told the audience what would happen to a hypothetical foster child who got in trouble at a new school. Sadly, most panelists concluded the youngster would eventually end up in jail.

"We have to get past race," said criminal defense attorney Carmen Roe of Houston, a panelist whose pretend-task it was to defend the troubled foster child.

"How do we make changes? One person at a time," said Dr. Griselda Villalobos, a licensed clinical social worker in El Paso who regularly works with children in and out of the system.

Although most of the day's dialogue pointed out problems that lacked solutions, attendees seemed pleased they were there. As the summit closed with remarks from Oak Cliff Bible Fellowship's Senior Pastor Tony Evans, sunlight streamed through the oatmeal-colored floor-to-ceiling drapes that had separated the day's events from the campus and surrounding deprived neighborhood.

"We are looking at a fraying society," said Evans, analogizing that high-profile shootings are like cracks in the walls of a home with a failing foundation. "If we get the one thing right, it can solve many things."

Sunday, January 08, 2017

Committee backs boosting programs to prevent recidivism

The section of the Texas House Corrections Committee interim report to the 84th Legislature on "recidivism" had some good elements, if not a groundbreaking analysis. Here are a few highlights:

First, it should be mentioned that Texas has among the lowest recidivism rates of any prison system, certainly among large states, in the United States. "Offenders released from prison in fiscal year 2011 had a rearrest rate of 46.5 percent, and a reincarceration rate of 21.4 percent within a three-year period," according to the report. Since in Texas one can be arrested for anything including Class C misdemeanors punishable only be fines, not jail time, many of those arrests are for petty stuff that may not really concern us from a safety perspective. Even so, that's a remarkably low rate; nationally, the rearrest rate is 67.8 percent. And our re-incarceration rate is also lower than the national average (55 percent within 5 years). Texas is one of a number of states where recidivism rates have been falling.

We've discussed before on Grits the reasons why, and it's not because we're doing such a great job of rehabilitating prisoners. Texas has the largest prison population among American states - greater even than California's whose civilian population is nearly half-again ours - and the reason is that we incarcerate more low-risk offenders who could be safely released than do other corrections systems where more rigorous cost-benefit analyses are applied to government activities.

At root, Texas' low recidivism rate mainly stems from the fact that we're over-incarcerating low-risk people to begin with - that many of those folks leaving prison were unlikely to have reoffended even if they'd remained free, and therefore they commit no new crimes when they get out, either. Reserving incarceration for people who pose a significant risk of harming others is a cost-benefit judgement at which the Texas system is not very good.

At present, Texas' system involves a great deal of churn on the low end, especially among drug users, with prisoners entering the system just long enough to receive a life-altering "felon" tag, maybe a prison tat or two and advice from career criminals on how not to get caught next time before being released. Then, on the back end, some elderly prisoners convicted of serious violent crimes are held too long after they no longer pose a big recidvism risk, with their healthcare costs driving up overall costs of incarceration. Both groups contribute to our low recidivism rates, but only because they wouldn't have committed more crimes whether incarcerated or not.

Among some of the good news in the report was the decline in parole revocations for technical violations, which is due mainly to 1) Texas' 2007 reforms, including the creation of intermediate sanctions facilities, and 2) the changing makeup of and decisions by the parole board to reduce incarceration modestly. "In 2006, the Board of Pardons and Paroles revoked over ten thousand offenders. In fiscal year 2015, that number was reduced to about 5500." By contrast, revocations for technical violations on the probation side remain high - about half of all probation revocations.

There's a good discussion in the report of in-prison programming and reentry support services which I won't replicate here but which may interest some readers. In the end, the committee recommended that, "Enhanced funding of Windham and correctional aftercare [for ex-prisoners who received drug and alcohol treatment] should be strongly considered next session." And they suggested that restrictions on occupational licenses for felons should  be reevaluated "to exclude those who have kept a clean record for a certain period of time."

Grits agrees with most of their observations about programming but would only caution to look at the recidivism data with big-picture nuance. If the Legislature stopped incarcerating low-risk offenders who're mainly imprisoned because they're drug addicts, for example, recidivism rates would likely go up over time. But that's only because a low-risk cadre has been removed and the remaining offenders are made up of predominantly higher-risk people. In the context of Texas' specific situation as it relates to over-incarceration, a rise in recidivism rates resulting from decarceration of low-risk offenders wouldn't be the worst thing in the world.

House Corrections committee rethinking probation fees

The Texas House Corrections Committee interim report to the 84th Legislature began with a discussion of excessive fees in the criminal justice system which merits readers' attention. The committee, chaired by Republican state Rep. Jim Murphy, focused on relatively obscure aspects of the system which nonetheless are incredibly important to the people affected by them, both people who must pay and government employees who collect them. On probation, for example:
If someone is on probation, there will be a lot of fees. First, a probationer pays up to $60 a month for supervision. Depending on the crime, there will be program fees for drug education or domestic violence classes. If substance abuse is involved, there will be costs for random urinalysis tests, and perhaps an ignition interlock (for DWI cases). If you have lost your license, which happens with any drug conviction, you will have to take a class to renew that license. Once the class is completed, you will need to go to the Department of Public Safety and pay between $125 and $325 to get your license back.
Larding on court costs
The committee examined various court fees, particularly ones aimed purely at revenue generation:
The 83rd Legislature directed the Office of Court Administration to study the necessity of certain court costs and fees in the state. The report outlined several troubling trends (link added).
Many of the court fees and costs, whether deposited at the state or local level, are not dedicated fees and are simply deposited in the general fund of the state or local government. They are then appropriated at the discretion of the funding body. 
Some of these court fees and costs are used to fund programs outside of and unrelated to the judiciary. Meanwhile, court fees and costs are generally insufficient to cover the cost of funding the judiciary at the local government level, with expenditures for the judiciary oftentimes far surpassing collected revenues for court fees and costs.  
There are hundreds of these fees, with a few dozen of them ending up in state coffers. 
The best known Texas court fees are "consolidated court costs," which run:
Up to $133 for felonies, $83 for misdemeanors, $40 for nonjailable misdemeanor offenses. Ninety percent of collected funding goes to the state for 14 purposes, including; crime stoppers assistance, abused children's counseling, law enforcement and custodial officer supplemental retirement fund, judicial and court personnel training fund, and emergency radio infrastructure account
Many fees are spent in ways which have nothing to do with their ostensible purpose. A $250 DNA fee on sexual assault cases, for example, is split between general state coffers and  the highway fund, with no relationship to funding the activity for which it's named. The committee could have added that this is happening at a time when DNA labs are underfunded and strained trying to keep up which evolving science, not to mention re-testing backlogs of DNA-mixture cases that were evaluated using flawed methodologies. 

Half of the state portion of the fee for "failure to appear" goes into the general fund with no specification that it be used for purposes related to that purpose. A $15 fee paid by bail bondsmen for each surety issued contributes to the state's Fair Defense account and to supplement salaries for assistant prosecutors. (That latter element may be a big, unstated reason some district attorneys dislike bail reform.)

The report added, "There are fees for records management, for juries, for judicial support, for court security, and for indigent defense. Pages and pages of fees. It boggles the mind to read it. Think of what it must be like to live it."

Notably, the committee observed, "Ability to pay these fees often isn't determined until later in the process. When a judge sentences a person to probation, and assesses fees and costs, he or she often has no idea if that person can actually pay. That is often left to the CSCDs, whose officers help the probationer draw up a budget to help them manage their obligations." They added, "In an era when you can find out your credit score for free on the internet, would it be that difficult to determine if a person is indigent prior to appearing before a judge?" Good question!

Relationship between fees and absconding
The interim report included this insightful passage about the relationship between high probation fees and absconding:
Although it may seem simple: pay your fees, attend your programs, etc., real life isn't that way. And for those who lack life skills, real life is challenging in a way that it isn't for those of us who have resources. 
And most of us are still living precariously. An Associated Press Poll indicates that threequarters of people in households making less than $50,000 a year and two-thirds of those making between $50,000 and $100,000 would have difficulty coming up with $1,000 to cover an unexpected bill. And being arrested would definitely qualify as unexpected. 
If someone has been convicted of a minor drug offense (less than a gram of a controlled substance that is not marijuana), there are a number of studies that indicate he or she is likely unemployed and experiencing deficiencies in educational attainment. He or she probably has substance abuse and mental health issues, and could be homeless. One-third of these minor drug offenders are under the age of 25, experiencing all that one might experience in terms of low impulse control and developmental factors. 
If you have resources, you probably take them for granted. These include access to cash, orparents who can help you out with a loan; trusted friends who can give you good advice or a ride when you need one; a permanent home. You have a job, you are educated. These things help to keep you out of trouble. 
If a person without these types of resources is ordered to attend a DWI program, but has no one to drive him to the program (because license revocation is part of DWI), then there are parts of the state where there are only two choices: drive to the program without a license, or forgo the program. Either one is reason to have probation revoked. 
Situations like this can be discussed and dealt with by a probation officer, who is likely to NOT revoke your probation on this technical violation. After all, life happens. But conversations like this are stressful. And standing before a judge is scary. So those without the skills to maneuver the stress see only one option: avoid the problem. Don't show up for scheduled meetings. Unfortunately, that's called absconding, and when the probationer is finally located, he or she will be in a lot more trouble than before.
Incentives for poor 'inadvertently created modern-day debtors prisons'
The committee explicitly recognized that probation fees and obligations have become so onerous they're creating incentives for defendants to choose incarceration over community supervision, even when locking them up serves no purpose from a public safety perspective: "because those who are poor and have no resources choose jail time, we've inadvertently created a modern day debtors' prison," they concluded, adding that the problem had also reached acute stages at municipal courts over Class C misdemeanor offenses, and extending the same criticism to the bail system:
Failure to pay isn't limited to the probation system or the municipal courts. Texas county jails currently detain 40,300 inmates who are awaiting trial, representing over 62% of the entire jail population of the state. The decision about who is released and who is detained before trial is determined primarily by a person's financial resources rather than his or her risk to public safety or likelihood to return to court. The National Association of Counties has found that 60% of the confined population presents a low risk of pretrial misconduct. 
These kind of statistics add to the consensus that being imprisoned for lack of resources is the same thing as making poverty a crime. And although municipal courts and pre-trial detainees weren't officially part of this committee's charge, it is worth mentioning as part of an overall trend. And that trend also contributes to overcrowding county jails, which is mistakenly seen as being caused by state policies.  
Rethinking probation as a payment plan
They concluded that the state should assume more of probation costs, allow more defendants to earn early release from probation through good behavior, and eliminate as many collateral consequences as possible:
Perhaps it is time to think of probation as a payment plan. If you have been given probation for one year, fulfill all of your obligations such as classes and restitution, and discharge six months ahead of time, that's great. However, you should still owe six months of probation fees. 
Conversely, no one should be kept on probation merely because they still owe restitution. If one year of probation is up, and restitution is still owed, then a payment plan should be set up for the restitution. And since that person is no longer on probation, CSCDs should no longer be collecting that restitution. 
During testimony heard by the joint committee, it became clear that many of those convicted of a DWI face uneven sanctions. If someone convicted of a homicide goes on probation for ten years, that person can be removed from probation after a few years if they do not get into further trouble. Not so for DWIs. It makes no sense to keep a DWI on probation if they attend classes, quit drinking, and go several years without further incident. 
A federal program mandates automatic suspension of a driver's license for any drug conviction, including a small amount of marijuana. Getting a license back can cost a lot of money, and Texas has the ability to opt out of the federal program. The state should do so. 
The fee system for probation should not be done away with entirely. In fact, the upcoming session promises to be a difficult one, with agencies encouraged to start looking at possible budget reductions now. Fees have a place in probation, as those who pay for a program are more likely to attend that program. However, when jail time is chosen over probation, the fees are too burdensome. For that reason, the state should start to assume more of this cost, which would likely be less expensive than paying for unnecessary incarceration.
The state should consider allowing a CSCD to receive full state share of misdemeanor probation, but allow for non-report for minor offenses. Consideration should also be given to a system where those charged with Class B misdemeanors complete a class or perform community service rather than complete the full term of probation. This would allow CSCDs to dedicate their time and energies to people with a more intensive level of need. 
The committee posed a provocative, new-to-me idea: "If probationer fees could be collected from individuals after they have completed treatment and achieved employment and housing stability, revocation rates should be lowered." That's a useful, interesting suggestion that makes a lot of sense. However, it's also true, as this section of the report concluded, that "until the state bears a greater burden of the costs of rehabilitating people" and shifts away from regressive probation and court fees, "real reform will be difficult."

Thursday, January 05, 2017

House Corrections Committee issues juicy interim report

There's all sorts of interesting stuff in the new House Corrections Committee interim report. From debtors prison policies to pretrial detention to how to handle nonviolent drug offenses to solitary confinement and reentry, this document covers a lot of ground. More this weekend after I've had a chance to go through it, but for now Grits wanted to share the link.

Wednesday, January 04, 2017

Huffman should include cops in union-busting legislation

If unionism is supposedly bad for public employees, why is it somehow good for cops?

SB 13 by state Sen. Joan Huffman - which is one of Lt. Governor Dan Patrick's stated priorities - would eliminate payment of union dues directly from public employees' paychecks except for police, fire and EMS unions.

Include police unions in the ban and Grits might go for that idea. They're the main source of public-employee-union generated economic headaches at the local level, from excessive salaries bloating the budget in Austin to vitriolic attacks on the city manager in San Antonio to massive unfunded pension liabilities threatening to bankrupt the city of Dallas. They're also the unions most frequently throwing their weight around in local elections, to the detriment of both officer accountability and city budgets.

If the goal is to reduce organized labor's stranglehold on local budgets and politics in Texas, police unions are the place to start.

Tuesday, January 03, 2017

If tough-on-crime works so well, what's up with murder spikes in Texas cities?

So mass incarceration is working because crime is down, right?

Then what to make of the fact that Austin, San AntonioDallas, Houston, and Arlington all experienced significant increases in murders this year, as various media outlets have reported (although official data won't be available for a few months as the final cases of the year are categorized)?

These increases occurred despite Texas incarcerating more people - including more violent criminals - than any other state in the country. They occurred despite vast probation and parole systems monitoring hundreds of thousands of offenders in the community. They happened at a moment when more Texas cops are employed at more Texas law enforcement agencies than at any time in history, and in an era when Texas prosecutors have been granted nearly unfettered discretion. And it occurred even though the largest faction on the Court of Criminal Appeals essentially finds for the government in almost every case.

If big-government tough on crime policies failed to prevent murder spikes in Texas - which can hardly be accused of blue-state leniency when it comes to filling up courtrooms, jails, and prisons - then maybe it's not worth the expense?

That said, as is always the case when dealing with crime stats, one must place these increases in context. In Austin and San Antonio, headline writers emphasized that murder totals were the highest in two decades, which is certainly true. However, Austin had just one fewer murder in 2010, so the number isn't that much of an outlier from recent years. And besides, both Austin's and San Antonio's populations have grown monumentally since the mid-'90s (as has Arlington's, which saw an eyepopping increase in murder numbers this year). So, even after these recent spikes, murder rates remain low by comparison and residents of those cities are safer today, by a longshot, than 20 years ago. That's worth emphasizing more than press reports have done so far.

The press and public focus on murders because a) they're among the most egregious crimes b) they often come with the most compelling stories, and c) the numbers for murders are among the most solid in the crime-data realm because the dead are easy to count. Other crimes are less easy to categorize: Is it a burglary if later investigators come to suspect, but could never prove, that an adult child living with their parents was the real thief? How about if mom and dad decide not to press charges or later claim they were wrong and nothing was stolen? There are no such ambiguities when it comes to murder victims.

OTOH, murders are rare events, their numbers are generally small compared to other crimes, and totals can fluctuate quite a bit year to year for no apparent reason. Even with large, single-year spikes, one learns over time to look for long-term trends, not short-term fluctuations, to understand what's really happening. All of these cities have experienced one-year increases in murders before over the past couple of decades, even though the overall trajectory for each has been downward.

And what's happening may be different in different cities. After all, there's nothing connecting murderers but the outcome of their actions. They're solely responsible for what they do and police realistically have few means to prevent them from doing it. The cops' job is to clean up after them.

In San Antonio, the chief insisted that, “What we’re seeing now is a lot of spontaneous murders,” adding, “It’s really difficult to put a reason on it.” Dallas has also seen a spike, the majority of which the department attributed to home invasions of drug houses. But then, two years ago Dallas was crowing that its murder rates were the lowest since 1930. In Austin, the Statesman reported the murder total was "highest in nearly 20 years," but didn't mention that the per capta rates are now much lower because of the population boom. (Good for AP, which added that tidbit to their version.) Percentage increases look bigger when starting numbers are extremely small.*

Murders are terrible things but to act without understanding rarely achieves the desired results. And overreaction can also have its costs. As Chief McManus in San Antonio warned, attempts at “'arresting the problem away' or 'overpolicing' could just lead to distrust." When rare events like murders do happen, there needs to be a modicum of community trust for police to find and make use of leads, witnesses and other such indispensable assets.

I led off this column by joking about whether the murder spike means mass incarceration "works." The jibe is intended in part at my fellow Texans who've belittled other jurisdictions like Chicago or Los Angeles when they've suffered violent-crime woes. The truth is, crime has very little to do with government enforcement policies and is broadly more responsive to other societal trends and cues.

IMO, cops, prosecutors and prisons didn't have much to do with the bulk of the crime decline of the last two decades, so if they keep doing what they do and crime goes back up, that won't surprise me either. But it should surprise, and concern, anyone who has believed the tough-on-crime hype surrounding the benefits of mass incarceration. Even in red-state Texas, incarcerating more people than anywhere else, we're not immune to national trends and can't pretend being tougher has achieved any better outcomes. It hasn't.

*Pro tip for news consumers: When you see the words "fastest growing" in a headline or news article, substitute "smallest" to understand what the reporter is really describing. Things grow fast when they start small and their increases are relatively large compared to a tiny denominator. H/T to John Pfaff for harping on that observation.

Pot proposals, waiting on bail reform, and other stories

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

Juvenile justice agenda detailed
Following up on the Texas Appleseed/Texans Care for Children report on school discipline, the Dallas News editorial board suggested this agenda for juvenile justice reform in 2017 at the Texas Lege: "Find funds to help schools hire more counselors and mental health professionals; eliminate the use of tasers and pepper spray on students if a weapon is not involved; improve data collection on police activities in schools to better understand the complexities of the school-to-prison pipeline."

Waco DA: We don't need no stinking evidence
The first trial of a biker charged after the 2015 Twin Peaks shootings will occur in April, nearly two years after the event. These are weird cases. In the overwhelming majority there is no individualized evidence against the defendants. A prosecutor in the story said the trials would take about two weeks, but that presumes there's evidence to present that these individuals participated in a conspiracy. By all accounts, for most of them there's not. Here's a Grits prediction: When all is said and done, when trials are all over and appellate courts are through with it, I don't believe the number of people convicted of any crime related to the shootings, out of the 155 who've been charged, will ever reach double digits. The McLennan DA long ago entered witch hunt territory regarding these cases, and so far the judiciary has declined to rein him in. But even in Waco, Texas, you can't convict dozens of people with no accusatory evidence at all. And in the main, that's the Kafkaesque situation in which the overwhelming majority of these 155 defendants seemingly find themselves.

Bail reform poster-child
This Dallas News story offers up a poster-child case for bail reform: "Why Dallas County can set $150,000 bail for a $105 shoplifting charge, and how taxpayers lose." We still haven't seen legislative proposals yet implementing the Judicial Council's bail reform recommendations. But in the meantime, New Jersey is implementing a risk-assessment based system which assumes most defendants will be released while awaiting trial. Grits hopes the Texas bill follows suit.

Pot proposals
Here's a Fort Worth Star Telegram article detailing the various bills softening penalties for low-level marijuana possession being filed at the Texas Lege. The new Houston police chief, Art Acevedo, is predicting Texas will shift policies on pot. Also, in the Bryan College Station Eagle, retired District Judge John Delaney supported "decriminalization" of marijuna - a term which one discovers upon entering the debate means different things to different people. In Texas' context, "decriminalization" means backing HB 81/SB 170 creating a new civil penalty for pot possession instead of making it a criminal charge like a traffic ticket. Wrote Delaney:
Supporters of "decriminalization" argue it's a better approach because it doesn't result in the numerous collateral consequences of a normal conviction. One of those is an automatic 180-day driver's license suspension, regardless of whether the offense was connected to driving a vehicle. And license reinstatement isn't automatic, unlike release from jail after serving a sentence. To get a license back one has to file an application, pay a $100 fee, buy expensive "SR-22" insurance, and complete a 15-hour drug education course. 
Another consequence is a permanent criminal record of the conviction. It can affect employment opportunities for a lifetime. Just ask any small business owner about how hard it is to hire an employee with any drug conviction on his or her record, even if it happened more than a decade earlier. 
Another advantage to "decriminalization" is that it begins with a citation instead of an arrest. That avoids the two hours of police time it takes to process someone who's arrested, leaving officers free to respond to calls such as burglary or domestic violence.
Cornyn key for D.C. justice reform
Grits fails to see why criminal-justice reform legislation couldn't pass under a Republican Congress. We've won reform measures in Texas with an all-R government. Maybe Texas Sen. John Cornyn can pass his sentencing reform bill now that there's no risk that a Democratic president might claim credit for the success.

Prison Policy Initiative 2016 retrospectives
Our friends at the Prison Policy Initiative ended the year with roundups of 2016's best criminal-justice commentary (including a couple of Grits items), the year's best research, and their own wish list for "winnable" reforms in 2017. Lots of good stuff amidst those links for those with a little reading time on your hands.

Monday, January 02, 2017

How Houston police officers are (not) held accountable for bad shoots

The Houston Chronicle's Lise Olsen and her colleague James Pinkerton have been pulling back the curtain on Houston PD police shootings over the past year. We've known for a while that HPD officers are almost never indicted for shooting people no matter what the circumstance, even when the officers' story blatantly contradicts known facts. Now we know that Houston officers are rarely disciplined in such cases, even when grave errors lead to deaths of unarmed victims. From Olsen's 12/29 story:
Only five of 40 cases involving police shootings of unarmed individuals since 2010 have resulted in disciplinary action against officers after police chiefs found that they violated policy, a new Chronicle analysis shows. None of the officers were criminally charged, and none of the disciplinary actions were announced to the public. Because the department's internal affairs probes are cloaked in confidentiality, the analysis required cross-matching data from the city, HPD and the Harris County District Attorney's Office. 
All five officers were disciplined for policy violations that occurred when they shot people while off-duty. 
One failed to train with the weapon he used to shoot an innocent man. Another exhibited a lack of "sound judgment" by shooting a fleeing man in the back while working an unapproved security job out-of-uniform. A third had been repeatedly disciplined for working an unauthorized apartment security job when he confronted and killed a wrecker driver. The fourth was found to have been intoxicated at the time he shot two people, among other policy violations. Still, as in all other intentional shootings, these were determined to have been "justified."
Even when disciplinary actions were taken, they seemed aimed more at providing cover for the shooter than punishing misconduct. Check out this example:
Officer Christopher Slater, who fired his weapon across a busy street and hit an unarmed 29-year-old, Gerard Barnett, in the back of the leg. Federal court records in a related civil rights lawsuit show the officer gave different versions of why he shot Barnett. The officer initially claimed Barnett had pointed a weapon at him. No gun was found, and Barnett's hands bore no sign of having fired a weapon. Still, the officer insisted someone else must have picked up the gun after Barnett fell. 
After interviewing suspects and reviewing surveillance video, HPD's own investigators concluded Barnett was an innocent bystander. Video cameras and other witness statements indicate that Barnett had been filling up a car with gas at a Citgo station when shots rang out and he ran to get out of the line of fire, according to documents made public in a related federal court case. 
Slater received a written reprimand in February 2010 - but only because he had "failed to qualify" with the gun he used by not practicing often enough at the department's firing range, his personnel file shows. In 2013, the city of Houston approved a rare $90,000 settlement for the man he shot. 
Despite that settlement, the Houston Police Department has never updated its account of the April 2009 shooting that claims Barnett pointed a weapon at Slater, who was off-duty and out-of uniform at the time of the incident. 
Barnett, reached by phone, said most of the settlement money went to pay a lawyer who finally agreed to take his case. Barnett has been able to work but has never been able to afford surgery. The officer's bullet remains embedded in his thigh.
Olsen highlighted the recent testimony of an expert witness who "analyzed 670 internal affairs reviews of HPD officers who had discharged their weapons between 2006 and 2016." He testified that, "HPD investigators relied too heavily on statements given by officers who'd been coached what to say by union lawyers," she reported.

Another recent Olsen story highlighted that, even though Harris County does not prosecute police officers for bad shoots, other jurisdictions are beginning to do so. That article opened:
Prosecutors in all but one of Texas' biggest counties have launched a spate of police officer prosecutions in the shootings of unarmed or mentally ill people over the past three years that parallels a similar rise in police prosecutions nationwide. 
Harris County, which leads the state in police shootings by a wide margin, is the exception. Prosecutors have presented evidence in more than 200 officer-involved shootings to grand juries that happened here since 2012. One of every five individuals shot by police was unarmed. But in every case, the officer was not indicted, records show.
One HPD officer cited was drunk when he shot an unarmed man but that fact was never presented to the grand jury by the DA's office.

Olsen's story goes on to demonstrate how difficult it is to secure convictions in cases against police officers, which nationally succeed only about a half of the time. "Out of the 78 police officers charged with murder or manslaughter in shooting-related prosecutions tracked since 2005, only 27 officers were convicted; 29 were acquitted or had charges dismissed; 22 cases remain pending as of November," according to an academic Olsen quoted who tracks them. Considering police kill nearly 1,000 people per year nationally, those are paltry numbers.

This fact bite in part shows favoritism toward police by prosecutors, but it's also a function of the plea-mill system into which the modern criminal justice system has devolved. For the most part, prosecutors don't try cases any longer - they cut deals and dismiss the hard ones. And these are hard ones. Police union attorneys are always willing to roll the dice with a jury, hoping sympathy for the profession will trump the facts. It's a smart strategy: Often, it does. 

Great coverage of an important issue. For more reporting on shootings of unarmed people, see the Chron's Unarmed series as well as Grits contributor Eva Ruth Moravec's Point of Impact series.

Saturday, December 31, 2016

Top TX criminal-justice story of 2016 easy to spot; the rest are debatable

Looking back at the grotesquery of a year which was 2016 to choose the most important Texas criminal-justice stories, it's not hard to pinpoint the #blacklivesmatter protests surrounding police shootings over the summer - and the murder of five police officers in Dallas by a lone-wolf sniper at a protest - as the most important moment from a reform perspective, not just for Texas but arguably the nation.

The Dallas shooting and a handful of other ambush killings of police, including the murder of a San Antonio police officer while parked right outside the station house, bumped up the number of police officers' on-the-job deaths slightly in 2016, both in Texas (19) and nationally (135), though in historic terms the number remained half of its 1970s peak. Police in 2016, by contrast, killed nearly 1,000 people nationwide, down slightly from 2015. In Texas, we learned from the Dallas News, the number of police shootings has grown steadily over the last few years, led by increases in Houston, San Antonio, and, of course, Fort Worth. And that was before we learned that some 200 fatal Texas police shootings over the last decade had been left out of the data. The issue of police shootings hasn't been as partisan in Texas as elsewhere, with folks like Rick Perry and Dallas-based media mogul Glen Beck offering sympathetic sentiments toward #blacklivesmatter activists. It was a fascinating year on this front and debates surrounding these topics were the hottest in criminal justice.

At the Texas Tribune, reporter Jonathan Silver offered up a top five list of Texas criminal justice stories in a 2016 retrospective, but only the two related to this summer's protests and shootings would have made my list. He included the murder of a TDCJ corrections officer, which I agree was chilling and terrible. But Grits would bet most Texans are unaware of it and I'm unaware of the incident spawning significant discussions of policy change. Meanwhile, the Texas AG so far this year has recorded 351 deaths in custody in Texas prisons alone, with more still to be reported from the end of the year. (Usually, unless family gets involved, inmate deaths receive no MSM attention at all.)

Silver thinks the much-touted drop in county jail suicides merits "top 5" status, but these small numbers vary widely from year to year and Grits thinks it's WAY too early for the state (or the media on their behalf) to claim credit for fixing that problem - certainly if the change in a bureaucratic form is the only thing to which anyone can attribute the drop. Routine fluctuation might equally explain it, just as likely, and we really can't know yet one way or the other.

Finally, Silver claimed fallout from the new open carry law merited a "top five" story, and for Grits it likely wouldn't have made a Top 25 list.

So what were the other biggest stories of the year from Grits' perspective?

Big-league bail reform push
Bail reform litigation in Harris County is challenging the fundamental constitutionality of judges using a bail schedule instead of assessing the particular situation of individual defendants. In part in response to this litigation, but also thanks to Chief Justice Nathan Hecht, the Texas Judicial Council took up the banner of bail reform and legislation is expected to be filed in the new year to expand the use of risk assessment tools and personal bonds by judges. While advocates are worried the legislation may be toothless - the fight will likely be how to make it as strong and functional as possible - support from top state leadership means something is likely to pass.

Austin DNA lab becomes poster child for forensic error
Somewhere in the top five one must find space for the closure of the Austin PD DNA lab and the admission by the state, via the Forensic Science Commission, that most labs had been misinterpreting DNA mixture evidence for many years. While other labs didn't have staff so recalcitrant that DPS found them untrainable, thus making Austin unique, many other labs were similarly misinterpreting DNA mixture results, including at DPS. Fallout from the need to recalculate results from thousands of cases - for which defendants in most of them have never even been notified of the problem or afforded counsel to assess their situation - is truly mind boggling and far reaching. Even more amazing: The same mistakes were made everywhere in the country, not just in Texas. Texas is just the first state to formally own up to the problem, but what's happening here foreshadows developments in every other state and likely internationally, since many of the best forensic scientists in other nations train here.

Kangaroo court in Waco
Though this blog hasn't covered it as closely as I should, Grits would include the ongoing travesty of justice in Waco in the aftermath of the 2015 Twin Peaks biker shootings in the five biggest stories of the year. The DA and local judiciary have conspired to trump up cases against dozens of bikers against whom they have zero inclulpatory evidence and then dragged out proceedings for more than a year without dismissing the BS cases. There's hardly a pretense anymore of justice being served, DA Abel Reyna is engaging in what amounts to petty bullying. The courts so far have backed the DA, but not yet on the challenges where he's most vulnerable, the denouement of which we may happily expect in 2017. Still, when this is finished (years from now, following the exoneration of most defendants and what will likely be successful civil litigation), Grits believes the episode will give the town an even worse black eye than the sexual assault allegations against Baylor football players, although the latter is presently a bigger deal nationally than the former.

Tattoo You: A new breed of Texas DAs
Finally, District Attorney elections in Harris and Nueces Counties must nudge their way into Grits top five because of their potential historic import. The change in Harris was part of a generalized partisan rout, with Dem judges and a new DA sweeping all the countywide offices. In Nueces, though, reformer Mark Gonzalez running as a Dem - a criminal defense lawyer with "Not Guilty" tattooed across his chest - was elevated by voters in a county that went for Donald Trump. In general, District Attorneys in Texas' largest counties these days are a lot less hard core and more likely to be sympathetic to reform than just a few years ago. This represents an opportunity for reformers, both because these new DAs themselves might do good stuff, and also because the opposition coming from prosecutors to statewide reforms may be less likely to speak with one voice.

Honorable mention for top stories:
  • Democracy failing us on judges: Court of Criminal Appeals elections are a joke and one of the court's best judges, Elsa Alcala, says she'll decline to run for reelection in 2018 rather than subject herself to them again. IMO Alcala was Gov. Rick Perry's very best appointment, out of thousands. In a different time and place, this traditional-conservative Latina Republican judge married to a former Houston police officer would be on a GOP short list for the US Supreme Court. That instead she's walking away from politics in disgust says something sad about the state of both republicanism and Republicanism in Texas.
  • When judges choose convenience over law: Texas is not following the constitution when it comes to vetting pro se habeas corpus pleadings, we learned from one of Judge Alcala's opinions. There has been no MSM coverage on this, and it's unclear who could provide any remedy since these are state habeas petitions, but from a systemic perspective it's a big deal.
  • Looming crisis: The Dallas police pension may bankrupt the city; Houston's not far behind.
  • Innocence matters: The San Antonio Four were declared actually innocent. And the underlying flawed forensics behind Harris County drug exonerations was revealed. Meanwhile, Texas Exoneration Review Commission finished up its work and issued recommendations. Two legislators - Rodney Ellis, now a Harris County Commissioner, and Ruth Jones McLendon, now retired to private life - deserve immense credit for pushing for the commission last session. Now it's up to advocates and the Lege to make them happen.
  • Declining executions: The number of Texas executions plummeted this year to historic lows in 2016, in part thanks to 2015 legislation (SB 1071) requiring prosecutors to notify the defense when they seek to set executions. Most of the MSM coverage hasn't mentioned that piece, though the Texas Tribune brought it up in September, but it's definitely been a factor.

Thursday, December 29, 2016

Why not to recruit Stormtroopers to your police department: Cowtown edition

Fort Worth PD yesterday released another Stormtrooper Recruitment video a video of an officer shooting an unarmed man in the back seconds after he left his patrol car from an incident earlier this year. See coverage from the Startlegram and the Washington Post. This arrives in the wake of viral video showing another Fort Worth officer arresting a mother and child in a dispute about which a Dallas News columnist declared, "It's hard to imagine anyone mishandling a call any worse than this officer." Meanwhile, the local police union president made himself the poster child for the proposed new enhancement for assaulting a police officer after he attacked a CLEAT boardmember in South Padre and fled the scene in September.

Make us proud, Cowtown. Make us proud.

Tuesday, December 27, 2016

Indigent Defense Resource Roundup

Here are links to some excellent resources found in the Texas Indigent Defense Commission winter newsletter that Grits wanted to preserve for my own purposes:

State should pick up more local indigent defense costs, but not all of it

The Texas Judicial Council issued a resolution supporting 100% state funding for indigent defense, which at present is mostly paid for by counties. Along that same vector, the Texas Indigent Defense Commission's Legislative Appropriations Request asked the state to pay for half the total indigent-defense cost in the next budget, up from 12 percent in the last one, rising to cover the full cost in six years. Grits supports additional funding for indigent defense from the state, but I disagree with my friend Jim Bethke, executive director of the TIDC, that the state should take over all of it.

There are lots of reasons it's beneficial for counties to still have skin in the game. The state pays for 100% of prison costs, for example, so local prosecutors seek the longest possible sentences knowing the expense won't come from the county budget. Mass incarceration is driven by local decision making. And economics provides a practical check on government behavior which carries more weight than moral and ethical arguments can typically muster.

Besides, having the state pick up the tab for indigent defense isn't real tax relief. The overall burden would be the same on the taxpaying public, they're just shifting burdens from property taxes to sales taxes. That's a smoke and mirrors move. In the end, you can't reduce government costs without reducing the size of government. 

The best way to reduce county indigent defense costs is to reduce penalties on common, victimless crimes so the government won't have to hire a lawyer. Reduce low-level pot possession from a Class B to a Class C misdemeanor, for example, and that's 70,000+ fewer cases where, if the defendant turns out to be indigent, they're eligible for county-paid representation. You'd pick up thousands more by reducing all driving-with-suspended-license cases to a Class C. And reducing penalties for low-level possession of harder addictive drugs from a State Jail Felony to a Class A misdemeanor would also dramatically lessen indigent defense costs, as well as shifting some of the system's volume to presently under-utilized county courts.

You can't reduce the cost of government and simultaneously insist that it perform every function that it did when you spent more money. So it's better for the Lege to make thoughtful choices about which criminal offenses merit counties paying for indigent defense instead of reflexively picking up the tab for local decisions. That's how we got a $7 billion prison budget (after a $458 million bump in 2015).

So, Grits supports the state picking up more of the tab - a 50/50 split could seem reasonable to me - but for now I remain unconvinced about full state funding. Do that and locals would allow costs to rise unfettered, with no practical checks on local actors regarding accountability for their own decisions or resulting systemic costs.

All that said, the Lege enters the session facing a multi-billion dollar shortfall, so this discussion could become moot. There are a ton of competing priorities. And I support the levels of state funding TIDC is seeking in the next budget, even if Grits wouldn't go any farther. So, if asked, I agree with TIDC's appropriations request for the coming biennium. But after answering, Grits would add, sotto voce, "for now."

Monday, December 26, 2016

Rudeness or racism? And we should care, why?

The Fort Worth Police chief said he was "disturbed" by viral video showing his officer provoking a confrontation with a woman who called 911 then arresting her when she reacted. But, said the chief, “There’s a difference between rude and racism.” Grits agrees. But there are also similarities between rudeness and racism. For example, if dash-or-bodycam footage showed the same officer isn't routinely "rude" to white folks, that could be revealing. OTOH, if the guy is just rude to people generally and is not guilty of racism, why do you want him representing your department? In fact, why is he on the force in the first place and why didn't his bosses catch it before if that's just generally how he treats people? Which leads to the question, in their routine, day-to-day functions, do Fort Worth PD supervisors discourage these behaviors, or do they or teach them? After all, they're recruiting Stormtroopers, right? (See Grits' earlier commentary.)

The practice of police verbally provoking victims, drivers, etc., lies at the root of a lot of these confrontations and the fact of the matter is, officers are trained to do it. I'm sure that will be the police union's defense if and when the department tries to fire the guy. And there's more than a grain of truth to it. Police officers don't behave that way because they're all racist jerks. They do so because of the training they receive, the culture they work in, and the values and priorities of management, which are expressed through the actions of their employees more than through public statements. The Fort Worth chief is right that the problem may not be racism. But that's a much bigger concern than if this were just a one-off where a single racist slipped through the cracks and made it onto the force.

MORE: From James Ragland at the Dallas News.