Friday, February 16, 2018

Competitive DA races to watch

Among DA races, the main three I'm watching in the primary are Dallas and San Antonio on the Dem side, and McLennan County (Waco) on the R side. See coverage from
Of these, the McLennan County race is perhaps most interesting. The Twin Peaks biker cases are completely unraveling, with the DA office walking away from the cases and the state Attorney General refusing to prosecute them. Will GOP primary voters punish Abel Reyna for screwing the case up so badly? Time will tell. But the timing really couldn't be worse for him.

MORE: An alert reader complained that I'd left out the DA contest in the Smith County GOP primary. My bad; Grits hasn't been watching the hometown news. Here's a link to coverage of a candidate forum in January and video of a recent candidate debate.

AND MORE: Preparing for a podcast segment on the primary elections, Grits ran across a few additional races of which readers should be aware.

In Victoria County, the daughter of a former DA is running against the incumbent on a reform agenda, chastising him for a failed policy of taking every first-offense DWI case to trial. This race shows how "reform" is relative. Not every reformer DA will be Larry Krasner. In Texas, simply being willing to oppose extremist bone-headedness in favor of pragmatism and math can make one a "moderate" in the GOP primary.

In Denton County, challenger Brent Bowen says the reputation of incumbent Paul Johnson’s office has been “marred by law suits and misconduct.”

Then there are a couple of competitive DA races out there which won't be decided along "reform" axes but rather by more traditional charges of incumbents being too lenient in plea bargaining. In Galveston, Jack Roady faces a primary challenger accusing the incumbent of being soft on crime. And in Walker County, the county seat of which is Huntsville, the First Assistant of incumbent David Weeks is battling it out with a civil attorney whose supporters say the DA office isn’t tough enough on DWI.

Monday, February 12, 2018

Cowtown bucks Great Texas Warrant Roundup

Fort Worth may be the first Texas city to pull out of the so-called "Great Texas Warrant Roundup," according to a report in the Fort Worth Star-Telegram:
now the City of Fort Worth Municipal Court has decided it wants to save you from an embarrassing arrest by bucking the aggressive roundup approach for a more neighborly discourse that it also believes will prove to be more productive. 
"We're calling it Warrant Forgiveness Month,” Municipal Court Director Theresa Ewing said. 
No, it's not wiping the slate for those with Class C warrants, however this new "Court in the Community" initiative — a mobile courthouse coming to a part of town near you — does guarantee an arrest-free encounter while meeting with a municipal judge to arrange a payment plan (or even swapping fines for community service) to make that burdensome warrant a thing of the past. 
The program began to take shape after last year’s Convoy of Hope event at Southwest High School. The Municipal Court was invited to set up a mobile unit, and the people came. Ewing said 87 people were able to rid themselves of warrants by working out a payment plan.
That's what it looks like when government seeks to enforce these petty laws for the public good instead of mere rent seeking motivations. Nobody's getting off the hook, but neither is the focus on a "roundup," as though poor people with unpaid traffic tickets were so many bovine to be punched by armed-and-badged cowboys participating in a human cattle drive.

If this were happening Austin or even Dallas, one might write it off to Democratic officials setting more liberal policies. But that's not what's going on here. "Cowtown" is Trump country, and them dropping the "warrant roundup" may inspire other Texas jurisdictions to follow their lead.

Grits wishes every Texas legislator and staffer, much less every JP, muni court judge and city council person, would read these stories from the Fort Worth Star-Telegram about why Fort Worth, a GOP bastion, stopped issuing arrest warrants for most unpaid Class C misdemeanor violations:
That second story in particular is a must-read. Add in the Driver Responsibility surcharge on top of the warrants described, and unpaid traffic tickets can become an insurmountable mess.

There has been some legislative push to get at these issues, like SB 1913 from 2017 which eliminated some of the more egregious practices for squeezing blood from stones. But firmer measures like House Corrections Committee Chairman James White's bill to eliminate arrests for traffic ticket debt outright didn't make it through.

Fort Worth's example shows those stronger approaches are workable and should be revisited. We haven't jailed poor people for private debt in America for more than 180 years, and in the 21st century, there's no good excuse for jailing them for traffic-ticket debt, either.

Sunday, February 11, 2018

Honoring those who put their lives on the line every day

We've all heard the statement dozens of times or more: "Police officers put their lives on the line every day." And it's true, in the same sense that construction workers or taxi drivers or bartenders put their lives on the line every day, all of whom perish on the job at roughly similar rates as police officers.

But when it comes to local government employees at seriously high risk, the New York Times has a feature this weekend which highlights a larger source of municipal employee deaths: Sanitation workers, who tend to die on the job at more than double the rate of police officers.

Grits mentions the story to offer a mea culpa: Several years ago I'd made the observation that, "The people picking up your trash put their lives on the line every day and are more likely not to make it home at night than their brethren in blue. But one suspects we won't any time soon see a New York Times headline memorializing their sacrifice."

It took nearly six years, but eventually the Times did publish that article.

Friday, February 09, 2018

Full 5th Circuit to hear case of teen framed by Brownsville PD, and other stories

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

New Texas #cjreform newsletter
A new, weekly, Texas-specific justice-reform news roundup from the Fair Punishment Project merits readers attention and brings up a few thoughts. Here's the latest example. Go here to sign up.

Juvie prisons full, or emptying, or something
The new executive director of the Texas Juvenile Justice Department had earlier opined that Texas couldn't "raise the age" because the TJJD system was too full to handle the extra 17 year olds, though Grits disputed how many extra kids that would be, and instead was shifting high-risk youth to be housed in adult prisons. Now, though, she's saying the state may have enough extra slack in the system to close more juvie units in the next few years and rely more on community corrections. So which is it? Would adding 17-year olds overwhelm the juvie system, or are we anticipating enough slack to close entire units in the near future? ¿Quien sabe?

Harris County overincarcerating juvie probation violators
As we shift youth from state prisons to county-run probation settings, the state needs to increase oversight of county-run operations because some of them are over-incarcerating, too.

Heat litigation settlement sets new standard
The settlement of heat litigation so far only affects inmates at the Wallace Pack unit, but it's pretty clear this is a camel's nose under the tent situation. Certainly, there are other inmates who fit in the "heat-sensitive" category at other un-air-conditioned units around the state. Further, "In addition to ending the fight over air-conditioning the Pack unit, prison officials also agreed to allow heat-sensitive inmates to be driven to medical appointments in air-conditioned vehicles — ending a practice that discouraged treatment by requiring them to sit, sometimes for hours, in hot buses."

Deliberately indifferent TDCJ medical care caused heart attack
The Fifth Circuit Court of Appeals sided with a plaintiff in a case alleging TDJC's deliberate indifference contributed to an inmate's heart attack.

Suicide kills more TDCJ inmates than executions
Suicide attempts in Texas prisons have doubled in the last four years, reported the Houston Chronicle. Strangely, though, the data doesn't differentiate between inmates who only talk about suicide and those who actually attempt it. That failure causes these data to obscure nearly as much as they enlighten. But the significant upward trend remains problematic. Notably, "In 2012, 36 prisoners killed themselves, marking the highest numbers of completed suicides in several years." By contrast, Texas executed 15 people that year (source). Since then, the number of executions have declined, while the annual number of suicides in TDCJ has hovered in the low 30s. So suicides are a much larger source of prisoner deaths than executions in Texas.

Full 5th Circuit to hear case of teen framed by Brownsville police
The full 5th Circuit will hear en banc a case about which Grits has written a couple of times, and on which we did a podcast segment last July: George Alvarez was a slight 17-year old in Brownsville when he was framed by police for assaulting an office. But a 3-judge panel at the 5th Circuit ruled that the state had no obligation to turn over exculpatory evidence to the defense in a plea deal, that the Brady rights only attach when defendants go to trial. See a detailed writeup here from ProsecutorialAccountability.com.

'Mass Incarceration and Its Discontents': Reviewing Pfaff
After Grits' reviewed John Pfaff's book Locked In last year, I've been watching for other data-based critiques of his conclusions about the causes of and solutions for mass incarceration. One of the more scathing has been published in "Contemporary Sociology" titled "Mass Incarceration and Its Discontents," reviewing Pfaff's books with two others. The whole essay is worth a read for those who concern themselves with these questions.

Tuesday, February 06, 2018

Interference with SCFO attorneys demands investigation

Grits had earlier discussed the new report from a state bar committee critical of the State Counsel for Offenders, the Texas Department of Criminal Justice division charged with providing legal services to Texas prison inmates. (See coverage from the Texas Observer and KWTX.) So I wanted to pull out a segment from our most recent Reasonably Suspicious podcast discussing the topic in more detail:


Allegations by attorneys in the report that TDCJ interfered to prevent deployment of particular legal strategies should be investigated by the state bar or perhaps a legislative oversight committee, at a minimum. Indeed, if that's going on - and it sounds like it's happening writ large in the civil-commitment division - then it's time to question, as my co-host Mandy Marzullo suggested during the segment, whether the SCFO is structured in a way that allows for the ethical handling of defense cases. That shouldn't be happening.

Monday, February 05, 2018

Let's Talk: A compilation of #cjreform interviews

Grits has been enjoying the interviews for Just Liberty's Reasonably Suspicious podcast and decided to compile them all in one spot, plus some of the interviews done on Grits (with apologies for the lesser audio quality) before we moved to a full-blown half-hour show. All of them include transcripts. Enjoy:
  • Kent Whitaker, father and only surviving victim of death-row inmate scheduled for execution February 2018 pleads for his son's life.
  • Ron DeLord, founder of the Combined Law Enforcement Associations of Texas and lead negotiator on the Austin police union contract.
  • Peter Neufeld, co-founder of the national Innocence Project, discussing prospects and barriers to forensic reform.
  • Brandi Grissom, former Austin bureau chief at the Dallas Morning News on the Texas Juvenile Justice Department sex-abuse scandal she covered as her final story.
  • Sam Sinyangwe, co-founder of Campaign Zero and director of the Mapping Police Violence Project discussing police violence and the Austin police-union contract.
  • Emily Gerrick, staff attorney at the Texas Fair Defense Project, discussing legislation reforming debtors prisons and what Texas judges can do to reduce incarceration for debt.
  • James White, Chairman of the Corrections Committee in the Texas House, discussing the 2017 legislative session and future prospects for sentencing reform.
  • Becky Bernhardt, executive director of the Texas Fair Defense Project discusses Harris County bail-reform litigation to which her group is a party.
  • Amanda Marzullo, executive director of the Texas Defender Service, making the case for a capital appellate public defender.
  • Eva Ruth Moravec, reporter covering police shootings of unarmed people in Texas talks about her beat.
  • Amanda Woog, academic discussing her project gathering data on Texas police shootings and deaths in custody. See an earlier interview about her project.
  • Sandra Guerra Thompson, law professor at the University of Houston discussing her new book, Cops in Lab Coats.
  • Erica Gammill, executive director of the Prison Justice League discusses the problems and opportunities posed by organizing prisoners directly.
  • Amanda Marzullo, policy director of the Texas Defender Service, discusses implementation of the Michael Morton Act.
  • Amanda Marzullo, policy director of the Texas Defender Service, discusses what's next after 2015 grand jury reforms.
  • Amanda Marzullo, policy director of the Texas Defender Service, discusses the interplay between the Legislature and the Court of Criminal Appeals regarding Texas' junk-science writ, as well as 2015 legislation requiring prosecutors to notify defense when seeking an execution date.
  • Becky Bernhardt: On excessive caseloads of attorneys representing indigent defendants.
  • Jennifer Laurin, UT law professor, discussing prosecutorial misconduct and oversight.
  • Jeff Blackburn, Amarillo attorney and former legal director of the Innocence Project of Texas, discussing traffic tickets as local revenue generators.

Saturday, February 03, 2018

What is a catch? What is driving on the shoulder? Video leaves CCA judges and NFL refs parsing fine details #DezCaughtIt

With this being Super Bowl weekend, Grits can't help but observe that the debate at the Texas Court of Criminal Appeals over whether someone is driving on the shoulder greatly resembles the debate in the National Football League over what constitutes a "catch." (#DezCaughtIt)

The amount of hair splitting that's possible in interpreting both rules - abetted by instant replay in the NFL and dashcams on police cars - nearly beggars belief. The Austin Statesman offered rare coverage of the latest CCA case deciding matter.

In this instance, the Government-Always-Wins faction split (with Judge Barbara Hervey joining Bert Richardson's main opinion) and common sense prevailed, but not without a hot debate over whether driving on the "fog line" separating the road from the shoulder is the same as driving on the "improved shoulder," which is a criminal offense.

The Seventh Court of Appeals had ruled that a traffic stop based on a vehicle's tire touching the fog line was invalid, upholding the trial court's suppression of evidence garnered from the stop. Judge Bert Richardson's opinion endorsing that parsimonious view ruled the day, but Presiding Judge Sharon Keller, joined by Judge Keasler, offered a spirited, hair-splitting defense of the officer's decision to arrest. According to Judge Keller:
the trial court found that the traffic-stop video showed Appellee’s vehicle’s 'right rear tire (or its shadow) . . . to come in the proximity to and possibly touch the inside portion or more of the white line delineating the roadway from the improved shoulder . . . but not to extend past the . . . outermost edge of the fog line.'
And since she considered the line part of the "improved shoulder," she would uphold the stop and subsequent search. Judge Yeary offered another, suggesting the majority reached the issue improperly.

This was a debate about pretext stops. How pretexty can they really be? Does the pretext matter at all?  Can the excuse for the stop be complete bullshit, or will mostly bullshit suffice? In this rare pro-defense ruling, the CCA sided with judicial restraint and common sense. But among members of the court, it appears to have been a hard-fought victory.

Entry-level TDCJ wage hikes exacerbate TJJD staffing problems

At the Dallas News, Lauren McGaughy has a story that reaches to the heart of problems at the Texas Juvenile Justice Department, even if it's an aspect of the crisis state officials have been loathe to address: Low pay and poor working conditions, exacerbated by siting youth prisons in rural areas with limited labor pools, contribute to a nearly unmanageable situation where up to 40 percent of staff turn over every year.

Now, Texas adult prisons have increased starting pay to stave off their own high turnover rates, and the result is that juvenile facilities are no longer competitive. There's already a lot of migration back and forth between adult and juvenile facilities, but this change ensures that migration will flow only in one direction.

This is not a problem one fixes by firing managers, much less watchdogs. It requires ponying up money, which the Legislature has been unwilling to do. Indeed, if new spending is required either way, IMO it'd be better to follow Wisconsin Gov. Scott Walker's lead and invest in smaller facilities near urban areas based modern best practices. Just increasing pay to try to attract workers to undesirable jobs in rapidly depopulating rural areas strikes this writer as a fool's errand.

State leaders have an opportunity to re-imagine the juvenile justice system in a way that reduces both incarceration and recidivism. Between the understaffing crisis at youth prisons, the sexual assault charges against an increasing number of staff, the need to implement federal prison-rape regulations at county jails, and the bipartisan push to raise the age at which youth may be prosecuted as adults (a measure which passed the Texas House each of the last two sessions), there's a nexus of opportunity here to install a global fix that sets juvenile justice in Texas on a more stable, long-term path.

But they're blowing it. The desire to appear tough has so far trumped the desire to be smart. And because state leaders have paid no political cost for living in denial, they haven't addressed these more fundamental problems, of which the sex-abuse scandals are simply a recurring symptom. In the long run, as I've written before, Texas state leaders are on the wrong side of History. And these staffing shortages at TJJD show History may soon catch up to them.

See prior, related Grits coverage:

Interview: Father/victim of soon-to-be-executed inmate pleas for son's life

Thomas Whitaker is scheduled for execution later this month for orchestrating an attack on his family in 2003 in which his mother and brother died and his father was injured. His father, Richard "Kent" Whitaker, is waging a campaign to convince the Board of Pardons and Paroles and Governor Greg Abbott to commute his sentence to life. The Washington Post yesterday published a feature on the story.

On the latest episode of our Reasonably Suspicious podcast, my co-host Mandy Marzullo spoke with Kent Whitaker about his son's case and his longshot campaign to secure mercy in the form of a gubernatorial commutation. Give it a listen:


Find a transcript of this conversation below the jump.

Thursday, February 01, 2018

Keller threatened at the ballot box, remembering Johnnie Lindsay, and other stories

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

Remembering Johnnie Lindsay
Johnnie Lindsay, one of the early Dallas DNA exonerees who became active pushing for changes to the law in Austin, is on his deathbed. Jennifer Emily at the Dallas News had moving coverage. I knew Johnnie well through his work at the capitol while I was policy director at the Innocence Project of Texas. Great guy. He will be missed.

Support closing Texas youth prisons
More than 930 Just Liberty supporters have emailed the Governor and Lt. Governor in the last two weeks to ask them to close Texas' 5 remaining youth prisons and shift juvenile offenders into smaller, home-like settings focused on treatment, following the path charged by Gov. Scott Walker in Wiconsin. Go here to join them in sending a message to your elected officials.

Keller threatened at the ballot box?
David Bridges from the 5th Texas Court of Appeals out of Dallas has proven to be a strong challenger to Presiding Judge Sharon Keller on the Court of Criminal Appeals. Her hometown newspaper recently endorsed him, and I've heard Republicans in a couple of different venues recently suggest he is gaining ground. That would be a seismic shift on the state's highest criminal court.

Going gets weird in Bexar DA race
The two big DA races to watch in the Texas primaries are both on the Democratic side, in Bexar and Dallas counties. In San Antonio, Nico Lahood apparently thinks it's a good idea to "tongue-lash" constituents at town-hall meetings. Sigh. At least he's not talking about vaccines. OTOH, he just announced Bexar would begin diverting low-level marijuana cases, which is a plus.

Police and fire pensions blowing up
Following up on themes raised by Ron DeLord in the January Reasonably Suspicious podcast, Reason magazine has published a map of Texas police and fire pensions funded below the 40 percent level. It's a lot of them. And from ALEC, see an article on shifting from defined benefit pensions to 401k-like retirement policies, which DeLord predicted would happen for Texas police departments within 20-25 years.

Forensic errors caught, but still too common
An analyst at the Houston Forensic Science Center was fired after she shredded her notes in a murder case rather than document the source of errors in an analysis, the Houston Chronicle reported. The good news: The system caught the errors. But there have also been problems, the paper added: "Last April, it was reported that 65 criminal cases were jeopardized because of errors by Houston crime-scene investigators, including 26 homicides, five officer-involved shootings and six child deaths." Further, " March 2016, Houston's Office of Inspector General recommended the center revise its quality-control policy procedures after an investigation into three incidents the year earlier found that analysts had mistakenly contaminated evidence."

Don't jail juvie probationers on technical violations
Juvenile probationers in Harris County are being jailed for technical probation violations at high rates, reported the Houston Chronicle.

Trumpian Justice reform focused on reentry
The Texas Public Policy Foundation's Brooke Rollins outlines the Trumpian view for criminal-justice reform. Sentencing and forensic reform probably dead, but reentry initiatives are newly in vogue.

Pattern-recognition based forensics a problem
See a good discussion of forensics based on pattern recognition.

Texas Ranger is new TJJD Ombudsman

There was an Ombudsman named Unruh
Who reported on bad things that staff do.
Newspapers reported
Her data exported
And so Debbie Unruh is now through.

Governor Abbott replaced TJJD Ombudsman Debbie Unruh with a retired Texas Ranger with no relevant experience, whatsoever. Reported the Houston Chronicle, "the incoming ombudsman is a former special ops commander with experience in special weapons and tactics, bomb squad, reconnaissance, crisis negotiations and border security." That background should really help when coaxing stories out of abused kids in youth lockups.

Meanwhile, Grits remains concerned about the message sent when the person who exposed many of the problems driving change at the agency is targeted for removal. I hope this new guy will do a good job, but the optics sure are bad. And if all of a sudden his reports show that problems at the agency have cleared up, will those findings be accepted as credible, or will the shoot-the-messenger circumstances surrounding his predecessor's departure make even good news something questionable? Time will tell. 

Putting a cop in the job instead of someone who's worked with kids - when the main job requirement is traveling around the state listening to kids - may work out despite the bad optics. I hope so. Certainly, I have no reason to believe the new Ombudsman is anything but a good man with the best intentions, despite the mismatched skill set. But coupled with moving troubled kids into TDCJ and uninformed comments by the new ED about raise-the-age proposals, Governor Abbott's change program still seems to this observer like it's off to a rocky start.

RELATED: A couple of editorials out this week speak to the small-government strategy that, in this writer's opinion, the Governor should adopt, following Scott Walker's lead in Wisconsin, instead of doubling down on large youth prison facilities.

Wednesday, January 31, 2018

TJJD Ombudsman Firing: Shooting the Messenger

When one reads the press accounts which broke the recent scandals at the Texas Juvenile Justice Department or talk to the reporters who covered it, one thing becomes clear: Much of what we know would have remained a secret if it weren't for the work of Debbie Unruh and her staff at the Ombudsman's office.

So naturally, Gov. Abbott has fired her, the Houston Chronicle reported. The chair of TJJD's board is also gone, and the executive director of the agency had already been replaced by the head of Gov. Abbott's Criminal Justice Division (which is in charge of dispensing mostly federal grant money). See also coverage from the Texas Tribune.

Incidentally, the new board chair, Wes Ritchey, comes from the same job Grits' paternal grandfather had for 29 years: County Judge of Dallam County.

State Sen. John Whitmire defended the changes, declaring, "Surely they can't say that the status quo was working well." To which Grits would reply, "No, it's not, but the only way we know that is because of the good work of the Ombudsman who's now being fired."

I get firing the ED and the board chair, even if I wasn't happy with the subsequent ED's initial missteps. But firing the Ombudsman is a different breed of cat. Hard to see that as anything but shooting the messenger, which breeds skepticism about whether the Governor would rather solve the problem or cover it up.

Rather than embracing modern best practices on juvenile justice like Gov. Scott Walker in Wisconsin, Gov. Abbott is doubling down on failed big-government solutions from the past and shutting down voices that exposed its shortcomings. That's a discouraging start to what will surely be a long and painful process.

If Unruh's office had never documented and exposed some of these problems, they would continue to have been swept under the rug. Same goes for problems at county detention centers.

My own takeaway on this remains the same as when the latest scandal first broke: "The mechanisms the Legislature created [in 2007] to identify, prosecute and punish sexual misconduct by staff actually appear to have worked. But the corrections culture that produces these illicit relationships at TJJD and TDCJ continues to afford opportunities for predatory behavior." The Ombudsman's office is part of what worked in this case: It's the management and ultimately decision makers and budget writers in the Legislature who decided to keep these large facilities in rural areas far away from treatment or mental health resources, then underfund them to the point that, in some cases, staff turnover approaches 40 percent annually.

Will the next Ombudsman be anxious to expose problems at juvenile detention centers knowing that doing so got the last person fired? Not likely.

Unruh wasn't technically a "whistleblower" because her JOB was to expose this stuff. She wasn't doing it against the interests of the agency, it was part of her job description and the Ombudsman's explicit mission.

But the circumstance is essentially similar to firing a whistleblower: She's being punished after exposing problems everyone agrees shouldn't have been going on. Indeed, given that most of the changes at TJJD so far are non-responsive to the details of the recently reported scandals, punishing her seems to be prioritized over fixing the problems.

RELATED: "Shifting youth to adult prisons puts Texas on the wrong side of history."

Monday, January 29, 2018

Interview: Ron DeLord on the Ferguson Effect, police pensions, and why he considers Saul Alinsky a major influence

Recently, Grits interviewed Ron DeLord, the founder of the Combined Law Enforcement Associations of Texas and a lion of the Texas police union movement. An excerpt from our conversation (about pensions) was included in the latest Reasonably Suspicious podcast, but I wanted to post the full interview here.

We discussed whether the "Ferguson Effect" really exists, the ongoing fiscal crisis surrounding police pensions, and DeLord's lifelong promotion of the teachings of Saul Alinsky, whose philosophies and tactics have overtly animated his writing and political strategies for decades. Give it a listen:


Find a transcript of our conversation below the jump.

Friday, January 26, 2018

Reasonably Suspicious Podcast: Why Mein Kampf is okay but The Color Purple is banned at TDCJ

Check out the January edition of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice policy and politics. You can listen to the latest episode here, or subscribe on iTunes, Google Play, YouTube, or SoundCloud.


If you haven't subscribed yet, take a moment to do so now to make sure you won't miss an episode. Topics this month include:

Top Stories
  • Banned books in TDCJ (featuring Lauren McGaughy): Why Mein Kampf is okay but The Color Purple is banned.
  • Alleged interference at State Counsel for Offenders: Did TDCJ board dictate defense strategies?
Interview
  • Ron DeLord, founder of the Combined Law Enforcement Associations of Texas on police pensions, predicts defined benefit pensions for police will vanish within the next couple of decades.
Errors and Updates
  • Harris County magistrate judges sanctioned for bail SNAFU
  • Austin police union declines to re-enter negotiations after contract rejected
Interview
  • Richard Whitaker: Father of a death row inmate, who is also one of his victims, asks the governor, parole board to spare his son's life.
The Last Hurrah
  • Latest Dallas exonerations based on prosecutor misconduct
  • Quick results from drug-law change in Oklahoma
  • Twin Peaks biker cases soon headed to trial
Find a transcript of the podcast below the jump.

Thursday, January 25, 2018

Bail shenanigans, and other stories

Let's round up a few stories that merit Grits readers' attention and simultaneously will clear some of my browser tabs:

Bail shenanigans
Meagan Flynn's deep dive on the Harris County bail system is a must read. Between this and the Texas Tribune's coverage, the machinations by judges to undermine the federal court ruling, bordering on outright sabotage, become painfully apparent. Were it me, I would not choose to thumb my nose at a federal judge in quite that way. See coverage here, here, and here of a hearing this week calling Harris misdemeanor judges on the carpet.

Clear ruling from out of the fog
More on this soon, but see initial Statesman coverage of a Court of Criminal Appeals ruling holding that an officer conducted an illegal stop when the defendant was pulled over for his tire allegedly touching the "fog line" separating the right lane from the shoulder of the road.

Koch 💘 #cjreform
The Charles Koch Foundation is investing heavily in criminal justice reform, including in Texas.

New TX public defender emerging
Grits hadn't paid much attention to the creation of the Far West Texas Public Defender covering 10 rural counties. The Texas Indigent Defense Commission financed the project last fall, and it was just getting set up last fall.

Mental health, small jail grants
Another story I haven't been tracking closely is the dispersal of new mental health grant approved by the Lege last year. See a letter to counties by the bill authors, who also pitched to counties a new grant stream at the Commission on Jail Standards for jails with fewer than 96 beds to purchase tech.

Justifying more police in an era of declining crime
Recently, the New York Times pointed out that, despite crime plummeting in the last three decades, the number of police has not declined, wondering aloud, as if for the first time, whether they should. So it's in that context that Grits reads the Houston Chronicle headline, "As crime drops, police chief says HPD needs thousands more on the force." This is preventive excuse making. If crime goes down, Chief Acevedo will surely take credit. But if it goes up, he will say it's because he didn't get his officers, even though the number of index-crimes-per-officer is near its 30-year nadir.

Tarrant jail use study
For my own future reference, here's a link to a recent Tarrant County Jail Use study.

Raise-the-age opponents radically overstate 17-year olds' incarceration levels

The new head of the Texas Juvenile Justice Department opposes raise-the-age legislation - to increase the age at which youth can be prosecuted as adults from 17 to 18 - reported the Dallas Morning News, on pragmatic grounds. According to her, TJJD facilities are so dysfunctional that an influx of youth would "break" them. She estimated that the change would add 300-400 new youth inmates to understaffed Texas youth prisons.

This is such a brazen falsehood it's really hard to swallow! Looking at the most recent (2016) TDCJ Statistical Report, as of August 31, 2016, there were only 51 youths under age 18 housed in TDCJ (see p. 18 of the pdf; p. 8 of the document). Most of those were probably certified as adults, so the number of 17-year olds sentenced is even smaller.* Plus juvenile courts tend to use incarceration LESS than on the adult side, so that number would likely come down if 17-year olds are prosecuted in juvenile courts.

That influx could be easily handled by TJJD institutions with adequate budget support from the Lege - it's within the range of the year-to-year fluctuation on youth prison populations already. No big deal. Overall, offenses committed by 17-year olds tend to be similar to the caseloads of juvenile courts.

There would be some additional costs to the state budget, mostly for the added juvenile probation load. But for taxpayers, that would be offset because local county jails wouldn't have to be renovated to comply with juvenile detention standards under the Prison Rape Elimination Act to avoid costly civil litigation. The fact that the extra expense accrues to the county budget and not the state doesn't reduce its significance to taxpayers footing the bills.

Bottom line: There will be some additional cost for youthful offenders in the next few years, no matter what. The Legislature has tried to do the job on the cheap for too long. Eventually something had to give, which is what you saw at the Gainesville State School.

Grits has seen some insensible and overstated stances taken by raise-the-age opponents, who are becoming a little frantic as state after state amends their laws, leaving Texas increasingly isolated on this front. But overestimating the number of incarcerated 17-year olds by 600-800 percent is a little much. Let's at least please base this debate on real facts.

RELATED: Shifting youth to adult prisons puts Texas on the wrong side of history.

*The observation about youth certified as adults belongs to Lauren McGaughy, the Dallas News reporter who wrote the story, and was added after this post was first published.

Wednesday, January 24, 2018

Shifting youth to adult prisons puts Texas on wrong side of history

Grits feels a little deflated at news that the Texas Juvenile Justice Department will transfer youth prisoners to adult prisons in the Department of Criminal Justice, supposedly as "part of a push to boost security by working to remove assaultive youth," reported the Houston Chronicle. They're moving up to 35 juvenile offenders into the adult system.

It's a small number, but to the extent it gives us a window into state leaders' thinking, it's very much a move in the wrong direction.

Problem is, this approach is completely non-responsive to the recent scandals at the Gainesville State School, which supposedly is what's spurring the move. There, the problems were staff engaging in sexual predation against their charges. The assaults making headlines involved staff paying youth to assault other youth they didn't like! Staff turnover approached 40% annually because of low pay, plus understaffing created dangerous working conditions. And the location of state facilities in rural outposts meant youth had little access to mental health or drug treatment services.

That's not a problem with "assaultive youth," that's a problem with underfunded, understaffed, and unaccountable institutions.

Moreover, it's a problem that's at least as bad at TDCJ as TJJD, and probably worse for young, vulnerable inmates. When the Gainesville stories first came out, Grits observed:
These troubles mirror problems witnessed at the adult system, where sexual misconduct by staff at the Texas Department of Criminal Justice (TDCJ) is a big source of federal Prison Rape Elimination Act violations. The Texas Association Against Sexual Assault has recommended the Legislature create an independent oversight mechanism at TDCJ comparable to the Ombudsman created for TJJD after the 2007 scandals.
So TDCJ has the same problems, but TJJD has more systems in place to catch them (which is how the Gainesville scandal arose in the first place - media reports didn't surface until after four staff were indicted).

The Chronicle story tells us the governor backs the move, in addition to Senate Criminal Justice Committee Chairman John Whitmire, who is quoted more prominently in the story.

But the better approach is being modeled right now by the governor in Wisconsin, Scott Walker, who is responding to a similar scandal at that state's main youth prison facility in which two guards were indicted. Instead of shifting youth into the adult system, he's following best practices identified a decade ago in Texas based on the "Missouri model," an approach that emphasizes community corrections and smaller residential units housing fewer than 48 inmates each.

Governor Abbott and state leaders in Texas, though, appear inclined in a direction contrary to the best practices followed elsewhere (and recommended by its own blue-ribbon panel a decade ago). And it's not just conservative governors like Scott Walker shifting away from big institutions toward a more modern, evidence-based approach.

This week the National Conference of State Legislators issued a set of principles regarding juvenile justice,  which included this recommendation: "Determine the maximum age of juvenile court jurisdiction, the age of extended jurisdiction, and the scope of transfer to the adult system in accordance with research on adolescent brain development, behavioral change and the effects on public safety."

The reference to "research on adolescent brain development" stands out here. Grits has argued that the push to raise the age of adult criminal culpability in Texas from 17 to 18 is an effort to bring Texas into the 20th century, but not the 21st. In the modern era, following the lead of brain science showing youthful brains continue developing into the mid-20s, even that age looks a little young.

Massachusetts recently raised the minimum age there for adult prosecution to 19 years old. The best evidence from neurological research, a judge in Kentucky found last year in evaluating the death penalty for young defendants, shows that the brains of 19 and 20 year olds are more like those of someone aged 15-16 than they are of someone aged 25.

In that light, Texas remains on the wrong side of history, both in continuing to charge 17 year olds as adults and in the recent shift of youthful offenders into adult prisons. Sen. Whitmire declared, "I am very positive on the plan to once and for all make Juvenile Justice safe." But we've heard that before. A quick check of the Houston Chronicle archives finds Harold Dutton, chair of the House committee overseeing TJJD, declaring to R.G. Ratcliffe in 2007 (March 11, p. A1) that Texas would fix the problem "once and for all" back then. Yet state leaders failed to execute the plan experts laid out for them, refusing to pony up for sufficient staff or smaller, residential facilities, and so here we are.

Now, once again we're hearing promises to fix the problem, but unlike Scott Walker in Wisconsin, Lone Star leaders are doubling down on outdated approaches. Texas needs to look for more appropriate models for dealing with young offenders, not more ways to ratchet them into the adult system as quickly as possible.

Monday, January 22, 2018

TDCJ interference alleged at State Counsel for Offenders

A new report from a Texas state bar committee offered damning criticisms of the State Counsel for Offenders, alleging improper influence exerted by the Texas Department of Criminal Justice, its parent agency. Applying the American Bar Association standards for indigent defense to the office, the analysis concluded that chronic underfunding and a lack of managerial independence accounted for inadequate defense services on behalf of Texas prisoners.

See coverage from the Texas Observer and KWTX.

The agency has been subsumed within TDCJ and does not even have its own line item in the state budget, according to the report, standing in stark contrast to the Special Prosecution Unit, which is an independent agency that prosecutes cases at TDCJ. "SCFO lawyers trail their prosecutor counterparts in both salary and resources to litigate cases, such as funding to pay experts," the Observer summarized.

The bulk of the report is made up of a survey of current and former attorneys at the agency, published anonymously, and there are many statements that allege serious problems, but which would have to be investigated further to be corroborated. Chief among those are allegations of direct interference by the TDCJ board in SCFO affairs.

Wrote one attorney, "I was directed to withdraw from representing a client after the SCFO director returned from a TDCJ Board meeting in the summer of 2013. A number of other attorneys were also directed to change legal strategies in particular cases when the SCFO Director returned from the TDCJ Board meeting."

If that allegation is true, somebody probably should have complained to the state bar about an ethical violation. TDCJ shouldn't be the one in charge of inmates' lawyers if they're going to put their thumb on the scale in their cases.

Another example of interference involved the civil commitment program. One attorney said they'd encountered no interference in the appellate section, "However, the time it did occur troubled me as I (along with the rest of the civil commitment section) were told not to pursue a certain type of defense in civil commitment cases."

Seventy percent of survey respondents disagreed that SCFO attorneys "have sufficient independent discretion to adequately represent their clients."

Again, all this comes with a caveat: This study stems from a survey of current and former SCFO attorneys which, while instructive, hardly amounts to proof of allegations of misconduct. It's a red flag, not yet a full-blown indictment.

But without a doubt, some reporter, researcher, auditor, legislative committee, state-bar ethicist, or other independent fact finder needs to follow up. This report identified a ton of smoke. It'd be well worth the effort to investigate for an underlying fire.

Seeking books 'designed to achieve the breakdown of prisons through offender disruption'

Grits loved the Dallas News' coverage of the Texas Department of Criminal Justice's 10,000+ banned books list, both for books dubiously banned and for those allowed. But my Reasonably Suspicious podcast partner, Mandy Marzullo, noticed an interesting tidbit the stories didn't highlight. We discuss it in the podcast which will be out this week. Lauren McGaughy reported that the book Freakonomics was banned for:
"racial content" that could be construed as being "written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption." 
This was reported without comment, but there are at least two problems with this determination. First, there's no mention whatsoever of race or "racial content" in the actual TDCJ policy (which is quoted near-verbatim and linked in the story). Both were put in quotation marks by the mail clerk who rejected the book, but only one is quoting anything. There's no legitimate justification for rejecting a book under TDCJ policy based on "racial content," which means the policy isn't really being enforced and the mail clerks and review committees are using subjective (in this case, race-based) criteria to make their decisions.

Second, the idea that the book Freakonomics was "written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption" is absurd and laughable on its face. Not only was it not written solely for that reason, the authors might find it surprising to learn that anyone, anywhere, ever interpreted their writing that way. Meanwhile, Mein Kampf and books by David Dukes get in without a hitch. (No "racial content" in those books, I'm sure!)

In a lot of ways, TDCJ has promulgated a stupid policy. (After McGaughy's coverage, and interest from House Corrections Committee Chairman James White, that policy is now under review.) Can anyone name a book "written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption"? If so, I'd like to read it. Grits has never heard of such a thing.

Even books like Angela Davis' autobiography, for example, which in part describes her own efforts to organize California prisoners to disrupt that prison system in the '70s, wasn't written "solely" for the purpose of communicating that information; it was part of a broader black power movement whose purposes where diverse and extended far beyond the prison yard.

I'm curious: if anyone knows of some devilish manual that meets the precise description in that policy, including the "solely," please leave the title in the comments. As I write this, I'm not certain such a volume exists.

Magistrates admit Harris judges pressured them to require money bail

Three Harris County magistrate judges were sanctioned by the State Commission on Judicial Conduct for failing to grant personal bonds to low-risk defendants who deserve them, reported the Houston Chronicle, and their reaction seems, to this writer, tantamount to an admission of the allegations in the federal litigation pending at the 5th Circuit.
The rebuke by the Texas Commission on Judicial Standards cites hearing officers Joseph Licata III, Jill Wallace and Eric Hagstatte with a public admonition and ordered them to take additional educational instruction. 
The order from commission chair, Justice Douglas S. Lang, said the board took into consideration that the hearing officers testified on Dec. 7 in Austin that they had been told by Harris County criminal court judges they should not grant cash-free bonds or more affordable bond rates. They said they feared they would be fired if they didn't comply. (emphasis added)
So the magistrates' defense was that elected judges ordered them not to grant cash-free bonds! Too bad that admission wasn't part of the evidence in the case that went to the 5th Circuit, but there's a hearing tomorrow to decide whether these admissions amount to evidence the judges withheld in the civil case. Regardless, there's plenty of other evidence being considered that shows the same thing.

Kudos to state Sen. John Whitmire for filing the complaint, it got the magistrates to cop to some pretty important admissions.

RELATED: In Dallas, the Texas Fair Defense Project and the ACLU of Texas just filed new litigation similar to the bail suit in Harris County, in which TFDP is also participating. A press release came via email just minutes after Grits hit "publish" on this blog post. MORE: See coverage of the new case from the Dallas Morning News.