Texas voters think justice system rigged for the wealthy, NY Times reporting repeats forensics fail, pay to play in Harris County juvie appointments?, and other stories

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

State should end practice of letting untrained guards work in jails
Untrained jailers legally working on probation status at the privately managed Parker County Jail  were involved in the violent death of an inmate. Excellent story, go read it. The Texas Legislature should close the loophole allowing jailers to work in county jails before they've received training. They should have to fulfill training requirements before being put on the line, just like police officers must complete the police academy before being deployed in the field.

Texas voters think justice system rigged for the wealthy
Voters support bail reform, says a new poll, which also found that "90 percent of registered Texas voters are dissatisfied with the criminal justice system overall and 55 percent want a complete overhaul or major change." Further, "81 percent of Texas registered voters believe the wealthy enjoy substantially better outcomes in the criminal justice than poor and working-class people."

Pay to play in Harris juvie appointments?
The feds are investigating the Harris County juvenile justice system, zeroing in on potential "pay to play" relationships between criminal defense lawyers receiving appointments and judges receiving their campaign contributions. Readers may recall that just two judges in Harris County account for 20 percent of all juvenile commitments to Texas youth prisons.

NY Times reporter repeats HouChron failures in ballistics coverage
This New York Times story on ballistics matching made many of the exact same errors as did a Houston Chronicle story I'd criticized last month: Failing to acknowledge the lack of standards or any scientific basis for the practice. I commented on the article in a brief Twitter thread.

Charting new paths for District Attorney offices
Progressive District Attorneys elected around the country in the last couple of cycles are pioneering new approaches to reducing mass incarceration offices. For example:

• Boston's new DA Rachel Rollins will refuse to prosecute 15 different low-level offenses, including drug possession.
• Philadelphia DA Larry Krasner has pulled out of the Pennsylvania District Attorney's Association because they promote regressive policies at the legislature. As their largest member, that's a big financial blow.
• The Washington Post this weekend featured Nueces County DA Mark Gonzalez as representative of a new breed of reformer DAs.

One third of deaths in Hoosier prisons were preventable with adequate healthcare

After following the issue of deaths-in-custody for many years, your correspondent believes lots more people die in Texas prison from preventable ailments due to inadequate healthcare than are killed in the state's execution chamber. But because the system controls all information about healthcare, it's a difficult assertion to prove. In Indiana, litigation pushed the issue to the point where a federal court commissioned an independent expert to assess the situation. They found one-third of deaths in custody in that state were preventable with adequate healthcare. Here's the expert's report. IMO, a similar assessment in Texas would likely yield similar or worse results.

Failure to pass First Step Act would be a step backward

The federal First Step Act this week dominated national #cjreform news, with President Donald Trump endorsing the bipartisan #cjreform legislation. But Majority Leader Mitch McConnell appears ready to renege on his promise to hold a vote during the lame-duck session. Here in Texas, John Cornyn is one of the bill sponsors, while our D.C. allies presently consider junior Senator Ted Cruz as "leans no."

Here's a summary of the bill from Families Against Mandatory Minimums, and here's law prof Mark Osler giving a run down on the bill's contents. Learn what the bill is about, then go here to contact Ted Cruz's office to ask him to support the legislation.

Earlier this year, the Perfect-Is-The-Enemy-Of-The-Good Caucus on the Democratic side were complaining that the legislation did not go far enough. But mercifully, those voices have STFU here in the homestretch. (Thank heavens! Grits was really starting to get annoyed at some folks whom I otherwise respect.) Sen. Dick Durbin (D-IL), who has been the best D reform champion in the US Senate, gave an excellent speech this week explaining why Democrats should hold their nose at voting with the President and support bipartisan justice reforms on the table.

Certainly, this bill doesn't go as far as your correspondent might like. But there's an unspoken benefit to passing the legislation beyond its contents. Getting to a vote on reform legislation in Congress provides a template to work from when pursuing future legislation. Without it, most senators won't have to take a stance, and the politics of the issue remains mushy and difficult to assess.

Texas has received much praise for its 2007 probation reforms, which have been hailed as a national model and a precedent for this federal bill. But what's less well known is that earlier reform votes at the Texas Lege in 2001 and 2003 - related to corroborating testimony of drug informants and mandating probation for the first offense on user-level drug-possession charges - provided the vote template upon which advocates built the '07 coalition. The latter couldn't have happened without the former.

In that sense, the First Step legislation is aptly named. Once it passes, other #cjreform legislation may well be possible. But if it fails, momentum will die and it could be years before the opportunity arises again. Failure to close, when the legislation is SO close to its denouement, would be a harsh disappointment and a bitter pill to swallow.

Austin police chief needs better responses to whistleblower allegations of improperly cleared rape cases

After the Center for Investigative Reporting and PRX aired complaints in a podcast from an Austin PD whistleblower claiming she'd been pressured to declare rape cases "cleared," the City Council got an earful at the hearing on police oversight Thursday evening. (Go here to listen to the podcast; the APD segment begins at ~35:10 mark.) KUT has now followed up, with one of the reporters discussing in detail what evidence they do and don't have surrounding the alleged clearance-rate coverup.

Grits wrote about the case the other day, so Chief Manley came up to me after the vote on the union contract (more on that, soon), earnestly wanting to explain to me why the issue was no big deal. But just as he did with the podcast reporters, he stopped short of being able to defend his position with specifics. He would say he had supervisors audit this or he was told that, while the whistleblower was speaking of specific cases about which she had first-hand knowledge. And his stance that he never intended the City Council to think "cleared cases" meant "solved cases" really doesn't match his comments to city officials quoted in the podcast. That's how any reasonable person would have taken it.

There probably needs to be an independent investigation of this episode by someone outside the department. The law enforcement responses so far seem more bent on obfuscating whether potentially viable rape cases were improperly cleared than on clarifying the matter.

Until then, my advice to Chief Manley: Find out to the letter what the sergeant thinks was wrong with your definitions of exceptionally cleared cases, then be able to explain the differences to reporters and the City Council. Don't just say there was a difference of opinion, as you declared on the podcast, and said to me at least twice. That's not good enough.

As it stands, the difference of opinion is that she has accused your agency of pressuring her to improperly clear rape cases, and your predecessor resolved the "difference of opinion" by removing her from her position as head of the sex-crimes unit so someone else could pump up the numbers. Given that fact pattern, the difference of opinion isn't trivial. Your side damn well better be right.

Bill filed to eliminate forensic hypnosis from Texas courts

Many thanks to State Sen. Juan "Chuy" Hinojosa for filing SB 130 to eliminate forensic hypnosis from Texas courtrooms. Grits has been fascinated with this topic since we first discussed it on the podcast last year, and reporters at the Dallas News and the Dallas Observer have covered the subject as well. A recent Psychology Today column on the topic concluded that the "cons" related to forensic hypnosis outweighed any "pros." Most states' courts do not allow it.

Required textbook for Texas
forensic hypnosis certification class

In this Twitter-string in response to SB 130, I briefly made the case for ending the practice. In essence, modern brain science has shown most of the thinking behind it is garbage. For example, recently I purchased a copy of the textbook the Texas Commission on Law Enforcement requires for forensic hypnosis trainings. That learned tome informs us that the "conscious" mind takes up 1/8 of the brain and the "subconscious" 7/8(!), with memories stored in the latter. It suggests "automatic writing" may be "useful in eliciting suppressed" memories, as well as "age regression," allowing witnesses to reenact past events.

Another Tweet in that string cited to the TCOLE curriculum for forensic hypnosis wondering aloud why the state would require detectives being trained in forensic hypnosis to demonstrate proficiency in post-hypnotic suggestions? (Item 14) Should detectives really be taught to implant memories in hypnotized witnesses? That seems dubious, at best.

There was a time when more than 800 Texas peace officers boasted forensic hypnosis certifications. Today, just two agencies - Texas DPS and the Harris County Sheriff's Office - employ nearly all of the fewer than two dozen forensic hypnotists in the state.

Indeed, forensic hypnosis appears to be a dying profession in Texas. There aren't many trainings conducted anymore. Pam Colloff, Mandy Marzullo and I wanted to take a forensic-hypnosis-certification course this year, but could not find one given in the state of Texas throughout all of 2018.

Most practitioners boast gray hair and decades-long resumes, and there doesn't appear to be an eager new guard anxious to stake their careers on a practice that's perhaps a half step above a tarot-card reading in terms of investigative utility.

The Texas Legislature should absolutely pass Sen. Hinojosa's SB 130, and while they're at it, they should get rid of this ridiculous certification at TCOLE. It can't be fixed. There's no scientific version of hypnosis-based memory enhancement to fall back on, even if the agency wanted to revise its trainings, which mostly don't occur anymore.

Anyway, TCOLE doesn't have sufficient curriculum staff to revise outdated police trainings, which is a budget question this blog will be revisiting later. They could use three additional FTEs for that purpose, according to the "exceptional items" request in their LAR. (And that's a no-BS request; their backlog is worrying.)

Neither can the Legislature count on the Forensic Science Commission to address the question, although they have received multiple complaints on the topic. That's because, by statute, they are only allowed to consider forensics related to "physical evidence." So hypnosis has somehow slithered through unintended gaps in the government's forensic-vetting apparatus.

That leaves the issue on the Legislature's doorstep. The case seems easy to make: In 2018, a curriculum suggesting police try to get witnesses to engage in "automatic writing," or teaching cops to implant post-hypnotic suggestions, doesn't even pass the laugh test. And yet that's the state of evidence Texas courts have allowed, with the Court of Criminal Appeals reaffirming the admissibility of hypnotically induced testimony as recently as 2004.

Courts in Texas have until now abdicated their duty to protect the public from junk science when it comes to admissibility of forensic hypnosis. In such instances, it's necessary and proper for the Legislature to step in. Bully for Chuy Hinojosa for doing so.

For more background on the topic, see:

• A brief primer on forensic hypnosis
• You're getting sleepy, so you won't notice Texas is still using junk science like 'forensic hypnosis' in death penalty cases
• Reasonably Suspicious podcast, Nov. 2017 (beginning at 28:10 mark)
• Reasonably Suspicious podcast, May 2018 (beginning at 21:19 mark)
• The Dallas News' Lauren McGaughy authored the best MSM deep dive on the topic.

New Day or an Anomaly? Dallas DA race became referendum on justice reform

It will be years before we know whether the Dallas District Attorney's race was a turning point or an anomaly in Texas prosecutor elections. Certainly, the state has never in living memory seen another one like it.

The sight of R and D candidates in a general election debating who would better reform the system stood in stark contrast to the days of tuff-on-crime DAs like Henry Wade or Bill Hill. This time, instead of trying to out-do one another with punitive promises, two former Republican judges (both former judges, one a former Republican) duked it out over who was more committed to reducing incarceration and enacting justice reform.

The victor, John Creuzot ran on a platform of ending mass incarceration and suggested he could reduce the number of people Dallas County sends to prison by 15-20 percent, as detailed by The Crime Report. Creuzot has promised to produce a plan to reduce mass incarceration within 90 days of taking office, so we'll soon see how he plans to accomplish that goal.

The group I work for, Just Liberty, co-sponsored a debate between the two Dallas candidates leading up to the general election. Go hear excerpts from a debate between the candidates here (at the 8:10 mark), or listen to the full debate.

Whistleblower: Austin PD fudged rape clearance rates to boost numbers, pretend hundreds of crimes were solved when no arrests were made

A former Austin police sergeant who was in charge of APD's sex crimes unit claims she was forced out after refusing to clear cases where arrests were never made and no one was prosecuted, even if the suspect had been identified. The result was to give a false impression that the department had solved many more rape cases than was really the case.

The podcast, Reveal, from the Center for Investigative Reporting and PRX, covered the topic of clearance cases in rape cases, and about 2/3 of the way through the episode (~35:10 mark), they hone in on Austin as their primary case study. Go here to listen. The former sergeant in charge of the Austin PD sex-crimes unit described being ordered to re-categorize cases, refusing because they did not meet the criteria, then being moved out of the job and replaced by people who immediately made the data changes she would not.

Police chief Bryan Manley was quoted giving puffed up stats to the Public Safety Commission, then unconvincingly defended the decision to re-categorize cases as closed to reporters after Mayor Steve Adler ordered him to sit down with reporters.

Manley comes off as non-responsive, while the Sergeant comes off as credible, with specific facts and data to back up her claims. The chief framed the issue as a simple difference of opinion which was resolved when the sergeant left the position. But the whistle blower saw more politicized motives at play in re-categorizing so many cases. While allowing that Manley may have been misled by subordinates, she insisted the re-categorization of cases as "exceptionally cleared" - which means cops had probable cause to arrest a suspect but could not, for some legitimate reason - simply wasn't justified for the cases in question.

Manley denied he was "blaming the victim," but his only explanation for "clearing" more than 1,400 rape cases in which a rapist had been identified, but not arrested, was that the "survivor" would not participate in the investigation. Problem is, victims can't participate if they don't know what's happening. The example of a UT student whose case was used to frame the story definitely fit the sergeant's characterization more than the chief's. She had to learn from reporters that Austin PD had found her rapist but closed the case without referring it for prosecution. She said she would have been willing to testify. It's hard to imagine, from the data presented by reporters, that that was an isolated circumstance.

Grits doubts we've heard the last of this topic. I'm looking forward to hearing the city council's next public conversation with the chief - perhaps this Thursday, when they finally approve the union contract and enact a new oversight system - in which council members have an opportunity to raise these questions.

Beyond Austin, a lot of the podcast focused on law enforcement gaming clearance rates, which is a topic this blog has returned to repeatedly over the years. Just to review a few of those items:

Clearance rates may represent the results of departmental-level decisions and priorities. For example, research shows that departments that are more focused on generating revenue through traffic tickets have lower clearance rates.

Low clearance rates are a source of political vulnerability for police, so there's an incentive to puff up the numbers, especially on something like rape where public sentiment is easily inflamed. Even so, clearance rates for many property crimes, in particular, are exceedingly low.

Homicide clearance rates have been on the decline in recent years, and one of the odd, unexplained ironies of modern criminology is that murder rates have declined even more than clearance rates, meaning the fact of solving a lower proportion of murders did not prevent overall homicide reductions. On the podcast in September,  Mandy Marzullo and I discussed (and for the most part, dismissed) a theory by an academic that those reduced clearance rates were a result of reforms achieved by the innocence movement.

MORE: This post brought to mind this classic, cinematic commentary on police clearance rates:

New top Harris Co executive a justice reformer, junk science writ a legislative unicorn, 'life and death in the carceral state,' and other stories

Here are a few odds and ends which merit readers' attention during the calm before the election-day storm on Tuesday:

New Harris County Judge campaigned on aggressive justice reform
Harris County's new 27-year old County Judge, Lina Hidalgo, campaigned on a platform of vigorous criminal-justice reform. She spent time at Harvard researching "the effects of incarceration on children," according to her campaign website, which promised that, upon election, she would emphasize "the importance of strong indigent representation." The section of her issue-page on criminal justice concludes, "Lina believes every person who has died or suffered due to a broken criminal justice system over the last ten years is one too many and that every dollar that has been spent perpetuating an inefficient system has been a disservice to taxpayers. She will fight for smart reforms as soon as she gets into office." For more background: Charles Kuffner interviewed Hidalgo before the election, and here's a profile and slideshow the Chronicle ran this week. Also related, from the Texas Observer: "The midterms triggered a seismic shift in Harris County courts."

Paxton bids to seize reins of capital case headed to SCOTUS
As Grits understands these matters, the Attorney General cannot step in to undertake local prosecutions in Texas unless the local elected DA asks for help. But that hasn't stopped AG Ken Paxton from seeking to intervene in the Bobby Moore death-penalty case as it heads to the US Supreme Court, Keri Blakinger reported in the Houston Chronicle. Indeed, AG Paxton thinks he gets to second-guess the role of both prosecutor and judge in the case: "the attorney general asked to replace the district attorney on the case and accused the Texas Court of Criminal Appeals of taking on the role of the legislature when it adopted updated, clinical standards for determining mental capacity earlier this year." The standard Paxton seeks to defend has made the state a laughingstock in legal circles for years, basing a key portion of its analysis on a fictional character from a John Steinbeck novel and straying far from findings of modern medical science. Even the Court of Criminal appeals has moved on from it, in light of the US Supreme Court's ruling in the case, which is why he's criticizing them, too. The Moore case promises to be a test for the new Trump appointees on capital punishment. Neither Gorsuch nor Kavanaugh were part of the decision decided 5-3 in 2017.

Was Texas junk-science writ the first-ever legislative expansion of judicial habeas power?
Historian Paul Halliday studied habeas corpus from the time of the Magna Carta through 1789. He found that legislative interventions into judicial habeas always trended in one direction: limiting judges' authority. That continued throughout American history, restricting the writ by statute, with limited exceptions, to post-conviction settings, culminating in the Clinton-era attack on habeas-corpus death-penalty appeals. Based on that observation, I made the case in a recent Tweetstorm that Texas' junk science writ, which has been reproduced in California criminal procedure, may be the first significant legislative expansion of the Great Writ since its inception in the Magna Carta. I'm not a legal historian and haven't studied habeas history in every US state. But Halliday demonstrated the case through 1789, and I can't identify any counter-examples after that until the Texas junk-science writ. Instead, legislators appear to have mainly restricted judges' authority with each alteration of habeas. If readers are aware of any contrary examples, please let me know.

'Life and Death in the Carceral State'
Check out video produced by the Texas After Violence Project and the Texas Justice Initiative. See also data related to the video and background on the interviewees.


Ending arrest for petty offenses
Here's an item from StayWokeTV about efforts in Austin to eliminate most arrests for Class C misdemeanors for which the maximum punishment is only a fine, not jail time.

Jails as mental health providers
The McLennan County Jail hired its first jail psychiatrist. “I would be willing to say 75 percent or more inmates that are in jail have some sort of substance abuse or mental health issue because that all runs together,” estimated a local jail official. But probably a much lower number will require psychotropic drugs, which is why the psychiatrist is needed. (Inmates aren't receiving talk therapy.) Harris County is ground zero for this problem, but even mid-sized counties like McLennan struggle to manage mentally ill inmates caught up in the justice system.

Dogs are better than people: Reentry edition
Read Keri Blakinger's story about what happened to her dog while she was in prison and her relationship with the folks who ended up with the pup after she got out.

Do police unions represent the views of their members?
In a recent column, former NY police commissioner and Right-on-Crime signatory Bernard Kerik used the Combined Law Enforcement Associations of Texas as an example of how unions' leadership doesn't necessarily represent the views of its members. Note to our Right on Crime friends: We need to see Bernie Kerik v. Charley Wilkinson in a tete-a-tete debate!

Risk assessments and bail reform
I'm still working my way through the subject, but your correspondent has a blog post or two bubbling up on the topic of risk assessments and bail reform. In the meantime, I'm not the only one thinking about the question. Here are several recent items on the topic that deserve consideration:

• Michelle Alexander (NYT): The Newest Jim Crow
• Harvard Law Review: Bail Reform and Risk Assessment: The Cautionary Tale of Federal Sentencing
• Judges Journal: Pretrial Risk Assessments: A Practical Guide for Judges
• Imperfect Enforcement: A call for papers for a conference next spring at the Yale Information and Society Project on the topic of risk assessments in the justice system.

Pardon me, South Carolina, but you're showing up Texas on clemency
In Texas, gubernatorial pardons are more rare than competitive statewide elections. In South Carolina, by contrast, nearly everyone is pardoned who requests it.

Western on Reentry
Reentry is not my specialty, but Bruce Western both performs primary research and thinks about reentry questions deeply. So when he speaks on the topic, Grits pays attention. Go read an interview with Bruce Western thinking deeply about reentry.

Self-serving plug: If you're not sick of voting ...
An outfit called The Expert Institute emailed to say Grits had been nominated for Best Criminal Law Blog. For those of you not sick of voting, go here to +1 and make sure the winning blog has a Texas twang.

The scandal behind the scandal of journalist Mike Ward making up quotes

While other journalists have expressed astonishment that Mike Ward, the former Austin bureau chief of the Houston Chronicle and long-time Austin Statesman reporter, was caught making up quotes in his stories, Grits cannot muster much surprise.

As a journalist, Ward was a sycophant to power. The quotes he made up were of so-called average people because those were the folks whom he didn't bother to talk to, whose opinions he assumed he knew. Rarely were reform-minded opinions portrayed fully or fairly, for example, if they were portrayed at all. Instead, they were spun in a fashion he knew would please the powerful people who were his main sources and ultimate constituency.

Newspapers love journos like that because they appear to have "access," which, in the journalism world, counts as currency. But often "access" just means a politician knows a writer would never publish anything contrary to their interests, and at that point they've become more publicist than reporter.

By the time a journalist is making up quotes, filing articles with one or two comments from his powerful friends and then making up common folk to frame their message, they've devolved into full-blown fiction writing, or what the President would call "fake news." The Chron couldn't identify 122 people quoted as sources in 72 stories.

But Mike's writing was nearly as problematic in the stories where quotes weren't made up because of the way he pandered to the powerful. Even if the comments were real, he wasn't going to put anything in there that his patrons didn't want. To this long-time observer of Texas criminal-justice reporting, that's the scandal behind the scandal.

Viewing the 2018 mid-terms through a Texas #cjreform lens

There are many lenses through which to view the 2018 mid-term elections. On this blog, your correspondent examines Texas politics and policy through the lens of a criminal-justice reformer, so let's think about the election in that vein for just a moment.

At the national level, the only viable criminal-justice reform proposal out there is the First-Step Act, with Sen. Chuck Grassley's sentencing-reform measures now amended onto it. Neither Dems taking the US House nor a few extra R senators should affect the ability of Majority Leader Mitch McConnell to muster 60 votes, given substantial Democratic support, so nothing should change on that front. It will pass, or not, during the lame-duck term. And there's no other significant federal #cjreform on the horizon, outside of whatever the President and Kim Kardashian may be cooking up.

At the Texas Legislature, changes were significant, but not seismic, and not entirely in reformers' favor. Two R senators lost their seats, including Republicans' most ardent criminal-justice reformer, Konni Burton. That's a blow. She's responsible for the most important if unheralded decarceration legislation (increasing property theft thresholds) that Texas ever passed.

The other R senator who lost, Don Huffines, supported abolishing the Driver Responsibility surcharge and eliminating red-light cameras, but otherwise shied away from criminal-justice reform issues and was never much help, though neither was he a hindrance. He was willing to be the fifth or sixth R vote in the Senate for a justice-reform measure; Konni was willing to be the first.

With Dan Patrick, John Whitmire, and Joan Huffman all returning, the senate will feel quite familiar on the #cjreform front. Those players' opinions and dynamics dominate all the major justice-related issues on the eastern side of the capitol and have not changed.

On the House side, Democrats picked up 12 seats. That exceeds (my) expectations and puts them within striking distance - nine seats - of taking control of the lower chamber in 2020 prior to redistricting. It also means that, if the Dems caucus together, any nine Republicans who want the lower chamber's top committee chairs could collaborate - as did Joe Straus and his lieutenants - and choose a Speaker of their own. That prospect was unthinkable when there were only 55 Democrats in the House. But I could imagine ten Republicans bailing on a Dennis-Bonnen speakership, for example, and deciding to place their own stamp on history. Time will tell.

Regardless, criminal-justice reform came out looking pretty good when one considers House elections. The Rs who were outspoken justice-reform supporters like James White or Matt Krause all came back. Indeed, Krause successfully fronted the topic as a wedge issue to blunt a challenger, Nancy Bean, who herself is a long-time justice-reform advocate, dating to the earliest days of the 21st century Texas reform movement.

Across the state, a number of Republicans in hot races turned to the Legislature's justice-reform record as evidence of bipartisanship and/or moderation, including Joan Huffman touting her support for correctional mental-health budgets. And R District Attorney candidates in both San Antonio and Dallas came off more sympathetic to reform than any Republican candidates for those offices in living memory.

Speaking of Dallas, even though national reformers opposed John Creuzot for DA in the primary, some of those same groups are now anointing him as America's next "progressive prosecutor." While that may be extreme - I don't expect Judge Creuzot suddenly to transform into Philadelphia's Larry Krasner - he did promise that within 90 days of taking office he would produce a plan for what the DA's office could do to reduce mass incarceration. Grits is very much looking forward to seeing that document.

Although no statewide elected officials were dethroned, judicial elections did reveal a chink in the Republicans' partisan armor: Democrats won 30 of 32 contested seats on the intermediate courts of appeal, including 19 previously held by Republicans. Reported the Texas Tribune, Democrats appeared to "flip four major appeals courts, taking back majorities in the judicial districts that serve Austin, Dallas and Houston. The 5th Court of Appeals, based in Dallas, has not elected a Democrat since 1992; on Tuesday, the 13-member court was set to elect eight Democrats, including a Democratic chief justice." As a result, seven of the fourteen intermediate courts of appeal in Texas now have Democratic majorities.

Further, Dems swept all 59 judicial seats at play in Harris County, including nineteen black women elected. All the misdemeanor court judges who opposed the civil-rights suit against the county over unconstitutional bail practices lost (as did one R who supported reform). And a new, 27-year old Democratic county judge was elected who wants to settle the bail suit, and boasts a legitimate #cjreform record (along with a poli-sci degree from Stanford and a law degree from Harvard). That may make the denouement of that complex drama unfold differently than it would have otherwise. The two sides will soon be briefing the 5th Circuit headed toward a final conclusion. At a minimum the contents of those briefs may now be quite different, and a settlement now seems more likely.

But outside of Harris County, from the perspective of criminal-justice reform in Texas, nothing major changed. Republicans still hold all the levers of control. Dems gained a little more influence in state government, but not yet real power. However, momentum for reform wasn't stifled, and on bail reform, in particular, a big  obstacle was removed.

We're in a transitional moment in national and state-level politics, and yesterday's elections had the feel of a violent maelstrom. But in the center of it, there was a calm surrounding prospects for bipartisan justice reform. Momentum for #cjreform didn't improve by leaps and bounds, but neither was it drastically harmed. In 2018, Texas candidates in both parties tended to view justice reform as a popular crossover issue with legs. That's a big change from just a few years ago, and the import of that transformation shouldn't be underestimated.

RELATED: For those interested, compare this item with Grits' pre-election analysis.

Ohio voters may follow Oklahoma's lead to reduce drug penalties, fund treatment

Following Oklahoma's lead, Ohio appears poised to reduce penalties for low-level drug possession (not dealing) at the ballot box. See coverage from Vox, which summarized the provisions in Prop 1 thusly:

• Prevents classifying offenses for using, possessing, or obtaining illicit drugs, such as heroin, fentanyl, cocaine, or meth, as felonies, instead requiring they be treated as misdemeanors.
• Prohibits jail or prison time for such offenses, unless it’s an individual’s third offense, or more, within two years.
• Allows individuals who were previously convicted of such offenses to ask a court to reduce their conviction to a misdemeanor.
• Aims to reduce the use of prison time for non-criminal probation violations.
• Applies financial savings to addiction treatment programs and crime victim funds.
• Allows people in prison, except those incarcerated for murder, rape, or child molestation, to seek sentence reductions up to 25 percent if they participate in rehabilitative programs, up from 8 percent under current rules.

The most recent polling shows the measure with a 48-31 advantage among Ohio voters, with 21 percent undecided. Unless every undecided voter breaks against it, when everyone else supported it by a 5-3 margin, that seems likely to pass. See coverage from the Cincinnati Enquirer, and the impressive list of supporters endorsing the measure.

With voters in red and swing states taking the lead, maybe this issue will become less scary for Texas legislators, who cannot rely on ballot initiatives to take tough decisions off their plates. The same felony-to-misdemeanor move makes loads sense for Texas, both from a fewer-prisons and a how-to-pay-for-treatment standpoint, and has for many years.

The political climate is changing in Texas regarding marijuana, and it won't take too many states' voters passing these sorts of measures before it changes on de-felonization of harder drugs. From both an economic perspective and a crime-prevention standpoint, it just makes too much darn sense.

UPDATE: Contrary to pre-election polling, this measure was defeated by a 63-37 margin.

Build on momentum to end Texas debtors prison practices

Your correspondent has been openly pleased with the success of Texas' debtors-prison reform legislation from 2017. This will always be one of Grits' favorites because the House bill author, state Rep. Terry Canales, told the Criminal Jurisprudence Committee when he laid out the bill that many of the ideas behind it came from a post on this humble blog.

So I was pleased to see the site Edinburg Politics recently published an extended feature on the legislation, and the Rio Grande Valley legislators who championed it. As Grits had written previously, the legislation has overachieved, actually boosting collections, contrary to predictions by naysayers, most prominently municipal judges, who predicted all sorts of dark and terrible consequences if it were to pass.

But it's worth emphasizing that debtors-prison reform in Texas is a half-done task. The state has taken some of the most comically absurd elements out of its Class-C-fine system, but it's still grinding up hundreds of thousands of Texans every year who are too poor to pay.

According to data presented to the Lege by the Office of Court Administration (which, oddly, is only presented for 11-month blocs, September through July of each year), the total number of warrants issued for Class C misdemeanors, including for failure to appear, declined by 37.5 percent since the 11 months ending July 2015. But in the comparable period ending July 2018, there were still 1.25 million warrants issued!

In addition, the number of arrest warrants issued for failure to pay Class C fines declined over the same period, from about 700,000 in the 11 months ending July 2015 to ~500,000 for the comparable period in 2018.

But half-a-million arrest warrants issued for failure to pay in fine-only offenses is still an amazing number!

The number of people who sit out their fines and fees in jail because they cannot pay has also been in decline. In the 11 months ending July 2015, they totaled 620,491; for the comparable period in 2018, it was 456,220.

That pro-rates to about a half-million people in FY 2018 sitting out their fines in jail - the definition of a 21st century debtors prison.

By contrast, the new provisions installed in HB 351/SB 1913 are still being used sparingly. Judges were given greater authority to waive fines, but the increase from the 11 months ending July 2015 (24,876) to the comparable period in 2018 (44,603) pales in comparison to the number of people sitting out their fines in jail. Even after the reforms, ten times as many people were jailed for justice debt as had it waived.

Similarly, the number of people benefiting from increased access to community service, while not insignificant, was still small potatoes.

So the 2017 legislation was a good start, but it has also served to underscore how far we have to go.

Thankfully, there's strong momentum to build on these reforms. This year in June, both the Republican and Democratic state parties endorsed platform provisions to cease arresting drivers who cannot pay for Class C misdemeanor fines, a measure proposed by state Rep. James White in 2017.

Then, last month, a survey by the Texas Office of Court Administration found that 66% of Texans disapprove of jailing defendants over fines and fees when they cannot pay. And new research has lately emerged showing that cities which rely on low-level fines as revenue sources tend to solve more serious crimes at lower rates.

So entering the 2019 session, legislation to use commercial collections instead of incarceration to enforce Class C misdemeanor debt begins with a genuinely bipartisan pedigree, evidence-based backing, and 2-1 support from the Texan public. It's hard to think of a better-positioned reform bill headed into the session.

Austin police union overplaying its hand by rejecting accountability measures

After their President was last seen screaming at city council members for not signing a contract with the Austin Police Association, the union this week rejected all accountability measures proposed by the city, the Austin Statesman reported. 

Their lead negotiator, Ron DeLord (founder of the Combined Law Enforcement Associations of Texas and a friend of the blog), told the paper the union wants more money without any new accountability measures, declaring:

“We are in a position once the city makes a financial offer and gives us some idea of what they want in oversight (that) I think we’ll get a deal or no deal next week,” DeLord said. “That could change, but if the city brings a money offer and we can accept it, I think we’ll reach a deal. If we can’t, there may be no contract, or we’ll continue bargaining.”

This is posturing. The city already told them what oversight measures they want, and DeLord rejected them out of hand. Why in heaven's name would the city pony up more money if the union won't agree to any of the measures they requested? The status quo suits the city just fine.

In years past, the big threat was that the union would oppose city council members in low-turnout municipal elections in which they were a big player. But having moved elections to November and switched to single-member districts, that advantage has largely evaporated. Looking at the various council races on the ballot this fall, reformers are likely to end up with even more City Council support, while no competitive candidate of whom I'm aware is championing the police union's message.

Austin police officers are already the highest paid in the state. There's little danger many will quit to go work for less elsewhere. The rich contracts larded on the union for the last two decades will inevitably, effectively serve as golden handcuffs for the foreseeable future. The union president may be angry, but not angry enough to quit and take another job paying tens of thousands of dollars less.

In other words, the union has no leverage. Police administrators have tried to claim, with their usual "sky is falling" tone, that changes to promotions practices which reverted to state law when the contract fell apart somehow justify giving the union extra money. But the fact is, some 70-plus other civil service cities around Texas operate under the state-law provisions. Even if sub-optimal, it's hard to argue those state-law provisions are some huge problem.

The council members most worried about these human-resources issues are mainly focused on expanding diversity at the department. But if that's the concern, they're barking up the wrong tree, anyway. The old provisions weren't some great diversity panacea! (Witness the police-chief finalist list: one white guy.) If the city wants to improve diversity in its police force, it needn't look to the contract. Instead, the city should focus on changing recruitment practices and setting higher and better hiring goals outside the contract. At current salary levels, APD is a good option for any college graduate who wants to settle down here.

Bottom line: There's nothing the union has that the city needs except acquiescence to the reform proposals that they just flatly rejected. If they want a wage hike, or for that matter if they want their stipends renewed that ceased when the contract ended, union negotiators must accept the accountability changes proposed.

The alternative isn't to get the money without agreeing to any reform measures, it's to go home with nothing, like they did last year. That should play well at the next union leadership election.

Forgotten by the system: State has no idea how many Texas youth have incarcerated parents

I just ran across this presentation from the Texas Legislative Budget Board to the Texas House Corrections Committee from May regarding children of women incarcerated in Texas state prisons.

The main thing Grits took away from the presentation was that Texas doesn't appear to keep track of this issue very closely. They provided national estimates I'd seen before on how many incarcerated women have kids, but TDCJ doesn't know how many prisoners are mothers (or fathers) or how many children each has, much less where those kids are. Nor does Child Protective Services keep track of how many removals involve children with incarcerated parents. The schools, certainly, aren't keeping track.

What little Texas does know about these kids is unimpressive. For example, they know how many women gave birth after entering TDCJ: 561 over the period 2015-17, with 9.3 percent ending up with CPS and 71 percent with the fathers.

A mentoring program aimed at children of incarcerated parents, Amachi Texas, had a two-year budget of $1.3 million for FY 2018-19, said LBB. But that's not much annually for a statewide program with tens of thousands of kids potentially eligible. Anyway, since no one has bothered to identify children with incarcerated parents, clearly the Amachi program couldn't locate most of them to mentor, regardless, and isn't funded to meet such a gaping need. 

Though it's not an original line, I've repeated many times on this blog that you cannot manage what you can't measure.

Given the extent to which having an incarcerated parent is a significant risk factor for children to later engage in crime, providing support for them while their parent is away conceivably could have significant crime-deterring effects. But Texas can't even define the scope of that problem, much less measure inputs and outcomes to see what works best to prevent crime among these youth. They have been forgotten by the system.

With just a bit of ramp-up time, it wouldn't cost TDCJ or CPS much to identify youth with incarcerated parents. As soon as they began, we'd understand a lot more about the scope of the problem and the state could begin planning to address the needs identified. In addition to mentoring, some kids may need tutoring, transportation assistance, clothing vouchers, access to summer programs, jobs and internships; there is all sorts of stuff youth in that situation might need. And anyone interested in promoting long-term public safety should be anxious for the state to help. Without better information about them, though, it's a pretty safe bet nothing will happen.

Robot judges, a Dallas data dump, prosecutor fired for doing the right thing, and other stories

Here's a quick, browser-tab clearing roundup post.

Did judges in Harris County mislead federal court in bail litigation?
A new filing in the Harris County bail litigation accuses judges of misleading federal Judge Lee Rosenthal and deleting emails that showed judges were directing magistrate's bail policies. Much of this has already been admitted to by the magistrates in question. See the Houston Chronicle's coverage. Go here for more on the status of Harris County's bail litigation.

Texas high court to consider case of prosecutor fired for disobeying order to withhold evidence
Tomorrow (Wednesday) at the Texas Supreme Court, the national Innocence Project will defend a prosecutor who was fired by the elected Nueces County DA because he refused to withhold exculpatory evidence in a criminal case.

Dallas data dump
The Justice Collaborative has put out a  boatload of data on misdemeanor cases in Dallas County. Check it out. (More on this later.)

Minimizing Class C arrests
Austin police will arrest fewer people for Class C misdemeanors upon implementing reforms negotiated over the last several months, but the police still refuse to stop arresting people for driving with an invalid license. See Twitter discussions here and here.

National praise for debtors-prison legislation

The National Center for State Courts praised Texas' debtors' prison legislation from 2017. For more background, see here.

Civil rights suit vs officer in SA
Reported the Dallas News, "A San Antonio police officer has been indicted on a charge of official oppression nearly a year and a half after a viral video showed him repeatedly punching a teenage girl." The department earlier had insisted his actions were justified.

False negatives lead to crime-lab firing
The Houston crime lab fired an investigator for using her own, non-standard equipment and missing evidence that led to at least two false negatives. Nobody knows how many more cases she might have similarly screwed up.

Don Willett on criminal justice
Judge Don Willett of the 5th Circuit Court of Appeals is turning out to be more of a criminal justice reformer than many other Trump appointees, Reason noted. He heard only civil cases on the Texas Supreme Court, so he's only now confronting some of these issues as a judge.

Robot judges?
Jennifer Doleac, an economics prof from Texas A&M, recently suggested that robot judges may be less biased and racist than human ones. Despite widespread concern among liberals about racial bias in algorithms, I'm pretty sure that's true. But for God's sake, nobody have sex with them.

More electronic monitoring critiques
Here's an essay and new report calling for an end to electronic monitoring of parolees. Grits isn't a great fan of this practice, either.

For the long drive home
A couple of recent podcasts to check out:

• Decarceration Nation: Episode 38 interviewed our own Sukyi McMahon, formerly my colleague at Just Liberty who's now at the Columbia Justice Lab.
• The Appeal podcast: Why police accountability is as elusive as ever.

A primer on the current status of bail-reform litigation in Texas

Are you confused about the status bail reform in Texas?

First Judge Lee Rosenthal issued a 193-page injunction in Harris County declaring their pretrial detention system unconstitutional. Then the 5th Circuit modified her order. Then the county made some changes. Then the 5th Circuit stayed part of the injunction it had previously approved. Then another federal judge in Dallas declared their bail system unconstitutional, issuing his own temporary injunction with different recommendations. And there's also litigation sitting out there in Galveston. Meanwhile, Gov. Greg Abbott and Texas Supreme Court Justice Nathan Hecht have proposed that the Texas Legislature enact bail reform. But how does what they want jibe with what the federal courts are saying, to the extent that can be divined? And how should occasionally-maligned risk-assessment tools be used as part of this process?

For a segment in the latest Reasonably Suspicious podcast, your correspondent sat down with Susanne Pringle, legal director of the Texas Fair Defense Project, which is one of the entities suing both Harris and Dallas Counties, to get a front-lines explanation of where Texas is at on bail reform and what all this means.

Because I imagine MANY people are as confused as I was about how all these moving parts fit together, I've pulled out that segment as a stand-alone audio file, and will include the transcript below. You can listen to Ms. Pringle's explanation here. I, for one, understood things a lot better after we talked. Give it a listen:

Find a transcript of our conversation after the jump.

Piney Woods DA ousted after accusation by neighboring DA, who was then given control of his neighbor's prosecution team

Here's an intriguing tidbit from East Texas. The Upshur County District Attorney's Office asked the Texas Rangers to investigate Wood County District Attorney Jim Wheeler, who abruptly resigned days later. A local TV station reported, sparsely, that an "administrative district judge" then named Upshur County DA Billy Byrd, the original complainant, "acting prosecutor" in Wood County.

I could find no more detail than that that online so far, but ... wowza!

To any journalist readers out that way, what gives? How do we not yet know details of such a juicy development? We need to learn more on this! That's a lot of drama, even for rural Texas, to have generated so little reporting.

MORE: A commenter suggested I should have read the appointment of the Upshur County DA as "acting prosecutor" to mean he was appointed to the case, not to run the Wood DA office. Maybe so.  I thought that would be a "special prosecutor," and think of "acting" as temporarily filling a vacancy. But the point remains: we need more reporting. Trying to interpret from the few sparse lines linked above is fruitless. Somebody needs to go report what the hell's going on! Sorry if I got that wrong, but not for drawing attention to this big, fat un-told story just sitting there two hours east of Dallas.

On the relationship between mass incarceration and museum proliferation: Houston museum exhibit tackles the justice system

Your correspondent was in Houston over the weekend and stopped in at an exhibit at the Contemporary Arts Museum dubbed "Walls Turned Sideways: Artists confront the Justice System."

Grits thinks about these topics near continuously, so perhaps more representative of the typical viewer was an expat friend visiting from Germany with whom my wife and I took in the exhibit. It impacted her viscerally, leaving her somewhat emotionally shaken and disturbed by the experience. (Of course, corrections policy takes a very different form in Germany.)

Grits got a kick out of a graphic which charted the rise of mass incarceration alongside a "world art index," changes in wealth disparity, and the number of museums. Although the notion that museums and prisons increased at the same time brings to mind the phrase "correlation is not causation," it's a humorously thought provoking take. In the artist's mind, and it's an interesting idea, the rise of prisons is correlated with the rise in income disparity between the super-wealthy and the rest of us. Museums increasingly are warehouses of surplus wealth, the thinking goes, while prisons warehouse excess labor:

I also enjoyed some faux "wanted" posters. Photos showed how the artist, advocates, or somebody had gone around New York City getting businesses to put them in their windows. Really funny, if you're into dark humor. (In the #cjreform movement, dark humor comes with the territory.)

My expat friend was particularly affected by a large photo of the last effects of an executed death-row inmate, David Lee Powell, all boxed up with a detailed index of the boxes' contents printed out 15-feet high on the wall. Another piece strung together photos of an incarcerated man and his family taken during visitation days over many years as his children grew up while he was inside. His wife and kids change a lot over time, while his face and orange jump suit remain constant throughout. Hard hitting stuff.

Another artist, frustrated with glowing media descriptions of police officers who'd been cleared of dubious deaths in police custody, commissioned awards trophies for Indianapolis police officers who killed someone on the job, ironically commemorating their role with participation awards. Simple, but the effect was quite jolting.

One minor quibble. One of the most prominent exhibits, placed immediately past the ticket counter, was a video re-enactment of a panel on "Prisons and Psychiatry" on which Michel Foucalt participated in 1975 with Howie the Harp (Howie Geld), who founded the Insane Liberation Front after experiencing institutionalization for mental illness as a teenager. The discussion's commentary regarding mental illness touted quite a bit of since-disproven nonsense at which, today, anyone in the medical community would scoff. Schizophrenia is not simply a function of psychiatry defining "normal" and creating a cadre of outcasts. We had a guy on death row in Texas pull out his own eyeballs and eat them, and he didn't do it because of some psychiatrist's definition. Schizophrenia is a medical condition that's now much better understood than in the '70s. Harp's critiques of institutionalization were valid; but his 22-year-old's mid-70s understanding of mental illness and the best ways to deal with it were, to be generous, preliminary and inchoate. Uttered today, I'd call them "dangerously ignorant." I'd hate for viewers of the exhibit who aren't better versed in the nuances of mental-health care to come away thinking those were valid points, and one might. They were compellingly persuasive, if one didn't know any better, which is why the art was so prominently displayed.

There was a lot there, more than I could ably describe in a brief blog post. If you're in H-Town, or visiting before the exhibit closes in January, go check it out.

Listen to Dallas DA candidates debate mass incarceration, bail reform, jailing homeless people, and how prosecutors should respond to police shootings

The Dallas District Attorney race has emerged as one of the hottest local prosecutor races in the country, and was featured in a New York Times story today.

Regular readers know that, last week, along with our partners at a Dallas-based group called Evolve, Just Liberty co-sponsored a debate between Republican incumbent District Attorney Faith Johnson and Democratic challenger John Creuzot. Deandrea Flemng, co-founder of Evolve and a trustee at DeSoto ISD, moderated the conversation as the candidates answered questions submitted by the audience for nearly an hour-and-a-half.

In the latest Reasonably Suspicious podcast, we broadcast excerpts from that debate, giving listeners a taste of the conversation. I said I'd put out the complete audio of their discussion this week, so the publication of the Times story seems like a serendipitous moment to make good on that promise, for anyone interested:


One more thing: At that event, we distributed a handout guiding voters who oppose mass incarceration on what to look for in District Attorney candidates. You can check that out here.

The least-discussed vulnerable Republican on the ballot, stop revoking people to prison for pot, and other stories

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

The least-discussed vulnerable Republican on the ballot
Grits does not expect Beto O'Rourke to win. But if he were to pull off the upset, many other dominos could fall in succession as a result, with at least three Republican senators, Texas' Attorney General, and potentially even the Lt. Governor at risk. Another race likely to flip if Dem turnout goes that high is Presiding Judge of the Texas Court of Criminal Appeals. Incumbent Sharon Keller won her primary with only 52% of the vote, and CCA races have consistently been among the lowest vote-getters over the years among Republican statewide officials. There is no Libertarian in the race, so the Democrat, Maria Jackson, should get all the anti-incumbent vote. If, on election night, the US Senate race at the top of the ticket is competitive, or heaven forbid, Beto pulls an upset, check down the ballot for this race; it may flip, too.

Predictions on #cjreform in 2019 #txlege
A panel in Dallas made predictions on #cjreform in the coming Texas legislative session at a gathering at the Belo mansion.

Stop revoking people to prison for pot
On Twitter, former House Corrections Committee Chairman Jerry Madden suggested that Texas stop revoking people being supervised on probation and parole when they test positive for marijuana. The recommendation comes on the heels of five former New York probation commissioners, including our pal Vinny Schiraldi, recommending that the state stop drug testing and revoking probationers for marijuana. Not only are people revoked for testing positive for pot, many may abscond rather than come in and take a test, further contributing to unnecessary "technical" supervision revocations.

Calls for marijuana reform from all quarters
This op ed in the Houston Chronicle argues that diversion programs are not enough to reduce incarceration for marijuana possession. Grits agrees. Either the Lege should reduce penalties from a Class B to a Class C misdemeanor, as Gov. Abbott has suggested, or create a new civil penalty for marijuana that avoids collateral consequences, as the state GOP platform recommended. Look for one of those two proposals to pass in 2019.

Combating opioid addiction on the medical front
An SA Express News column by a doc from the Baylor College of Medicine called on the state's Medicaid Drug Utilization Review Board to expand access to anti-addiction medication. He also added recommendations for the Legislature to address the problem.

Them again
Two judges in Harris County are responsible for 20 percent of all youth prison commitments statewide, the Houston Chronicle's Keri Blakinger reported.

Family pleas for justice
A family has filed a federal civil rights suit against League City police after the alleged wrongful death of their son, who was shot in the back and stabbed in the incident that led to his death.

Texas can't execute schizophrenic man
Texas has seen a rash of scheduled executions delayed, primarily for two reasons: Erroneous forensics exposed by Texas' junk science writ, and SCOTUS overturning Texas' outdated standards over executing mentally ill and developmentally disabled defendants. The latest execution to be put off falls in the latter category.

The Guilty Plea Problem
The national Innocence Project has put up a new website called "The Guilty Plea Problem." Texas' Clay Chabot case is prominently featured.

The Eyewitness ID Problem
Eyewitnesses are more likely to pick the wrong person if fillers aren't chosen which look similar to the suspect.

Challenges to license revocation, jail over traffic fines
A federal judge in Tennessee said that state couldn't revoke people's driver licenses for non-payment of fines and fees. Might such a precedent eventually apply to Texas in the 5th Circuit? Here in the Lone Star State, the platforms of both major political parties this year endorsed an end to arrests for non-payment of Class C/traffic fines, so the collateral consequences of traffic-fine enforcement are being challenged on multiple fronts.

Defining a 'progressive prosecutor'
As he has from the beginning of his term, Philadelphia's Larry Krasner has been defining what it means to be a progressive prosecutor in the 21st century. The New Yorker has a feature on his tenure so far. Krasner's good work has even surpassed the hopes of academic prognosticators regarding what prosecutors can do to reduce mass incarceration.

For the reading pile
Here are a handful of academic articles that go on the to-read pile:

• On the exclusion of felons from jury service - we hear more about voting, this is important, too.
• On racial equity in algorithmic justice - a really big, emerging issue.
• Reforming the law on police use of deadly force - we need all the deep thinking on this topic we can get.