Conflation of punishment with price system distorts justice in sex-assault cases

We live in an era when "justice" has been defined largely in terms of the price system, as though it were subject to laws of supply and demand. The root theory behind our modern justice system, in large part, holds that punishments are a "price" paid for misconduct and, if they do not deter, it's because the "price" wasn't high enough.

Defining punishment abstractly as the "price" of crime generates perverse cultural meanings for victims, prosecutors, jurors, and others engaged with the system. Under the price-system mindset, harsh punishment by the state (which monopolizes the currency of punishment) is evidence that the victim is valued, while more lenient outcomes are evidence that they are not, that a lower "price" has been placed on their suffering.

This implicit pricing model distorts nearly every part of the justice system, but particularly regarding sexual assault. Certainly, some women want maximal punishment for their rapist. But because the overwhelming majority of women know their perpetrators, often including beloved family members, harsh punishments can also perversely prevent some women from reporting crimes against them. For them, defining the "value" placed on their suffering vis a vis the "price" of punishment harms their interests, making them less safe and abnegating their needs rather than meeting them.

This is why Grits has often thought that restorative justice tenets may ultimately provide a viable, alternative path for how to confront these horrible situations. Such interventions focus on the questions, “Who was harmed? What do they need? Whose obligation is it to meet those needs?,” which seems like a more constructive approach than one-size-fits-all punishment regimens.

But the pricing model is what we've got, and a couple of recent, high-profile cases help demonstrate how treacherous this terrain can be.

In Waco, the town is in a furor over outgoing DA Abel Reyna's office agreeing to a plea bargain for a former Baylor frat president, Jacob Walter Anderson, indicted by a grand jury on four counts of sexual assault. Under the deal, he pled to a third degree felony charge of unlawful restraint. He'll serve no jail time, undergo counseling, pay a $400 fine, and won't be required to register as a sex offender. Reported the Tribune-Herald:

The victim, who has been outspoken against the plea bargain, began to cry loudly Monday after Strother announced his decision to accept it. She urged the judge to reject the plea offer and set a trial so she could have her day in court. She said Anderson sexually assaulted her, repeatedly choked her and left her for dead after she fell unconscious. 

Later, in an emotional victim impact statement, she told Strother she is devastated that he approved the plea bargain. She called out prosecutor Hilary LaBorde, who struck the deal with Anderson, and McLennan County District Attorney Abel Reyna for not attending the hearing. 

“If I had the courage to come back to Waco and face my rapist and testify, you could at least have had enough respect for me to show up today,” she said. “You both will have to live with this decision to let a rapist run free in society without any warning to future victims. I wonder if you will have nightmares every night watching Jacob rape me over and over again?” ... 

The woman described in sometimes graphic detail what she said Anderson did to her. 

“When I was completely unconscious, he dumped me face down in the dirt and left me there to die,” the woman said. “He had taken what he wanted, had proven his power over my body. He then walked home and went to bed without a second thought to the ravaged, half-dead woman he had left behind.” 

The woman said she has learned through this process that “the McLennan County justice system is severely broken,” but she thanked the women who created an online petition opposing the plea agreement that she said was signed by more than 85,000 people.

So why did the McLennan DA's office fail to go to trial? They feared an acquittal, was supposedly the reason. ADA Hillary Labord

declined comment about the case. However, in an email she sent the woman and her family after they learned of the plea agreement by reading the Tribune-Herald, she said she offered the deal after an acquittal in a sexual assault case that she said was similar to Anderson’s. She said she was concerned Anderson would be found not guilty. 

“(The jury) engaged in a lot of victim blaming — and the behavior of that victim and (this victim) is very similar,” she said. “It’s my opinion that our jurors aren’t ready to blame rapists and not victims when there isn’t concrete proof of more than one victim.”

The prosecutor's motive ostensibly was to protect a victim who didn't want to be protected, but she never spoke to the victim to tell her about the deal, letting her learn about it in the newspaper. So far, one notices, no one has judged the behavior or credibility of the victim but the prosecutor. Jurors never had  the chance.

In that light, how did anything that happened throughout this process meet this woman's needs? The state demonstrated they didn't value her by judging her credibility, failing to communicate, even to say the DA planned to dishonor her wishes, then they placed a low, abstract "price" on her pain through lenient punishment without giving her a chance to tell jurors her side of the story. No wonder the woman's angry! A statement released by the victim's family, the Tribune-Herald reported, declared:

“This is an absolute travesty,” the statement reads. “By agreeing to this plea, (prosecutor) Hilary LaBorde and the McLennan County DA’s office have allowed that rape is no longer a crime in Texas. They are telling the rapists and sexual predators, ‘Go ahead and violently rape, choke to near death and abandon your unconscious, ravaged and used-up victim and we will make darn sure you get some counseling. Even if a grand jury indicts you on four counts of sexual assault, we don’t care.’ 

“Oh, and ‘All you rape victims, don’t bother to report it, because we will put you through hell for years, make promises about getting a conviction and lie to you about not accepting a plea the whole time. We will give your rapist counseling and drop all charges and let him go free. We don’t care about about justice and we don’t care about you,’ ” she said in the statement.

The victim here isn't just angry about a light sentence, although she clearly thinks her rapist should have been punished more harshly. But she's also angry about not being kept informed, about the DA's office ignoring her willingness to testify, and not getting her day in court. She feels lied to. She felt throughout the process that she wasn't being heard, viewed the trial as the moment when she finally could be, then saw that opportunity taken from her in a deal considered friendly to her assailant. Anyone would be mad.

By contrast, consider this recent story:  In Bell County, a man disproved false rape allegations by producing a selfie taken in Austin as an alibi. An ex-girlfriend accused him of breaking into her house, raping her, and carving an "X" into her chest. Police initially believed her, and the guy was in serious jeopardy of spending a long stretch in prison if he hadn't been able to prove his whereabouts.  Now, she has been charged for making the false report.

Thank heavens the fellow was out of the county and could produce a time-stamped selfie! If the same fact-pattern occurred in the pre-cell phone era, he'd be screwed.

False allegations are rare but do happen. Indeed, the FBI has asserted that, 'The “unfounded' rate, or percentage of complaints determined through investigation to be false, is higher for forcible rape than for any other Index crime." Some false allegations, as in the San Antonio Four case, appear to arise from retaliation. Some come from young women embarrassed at their own behavior. And some are women who are raped by a stranger and make an honest but tragic mistake about their assailant's identity.

In those incidents where a rape did occur but the wrong person was accused, a double tragedy occurs. An innocent is punished for the sins of another and the real perpetrator goes free. That's a worst-possible-case scenario that should justifiably scare anyone - say, jurors, asked to pass judgment in these instances.  Women deserve justice, but justice is poorly served when an innocent person is punished.

Grits values both the victim's pain in Waco and the liberty interests of the man in Bell County. For that matter, I hope that the defrocked frat president turns his life around, repents his sins, goes on to live a productive life, and never does anything like that again. It's possible the best way to ensure that happens is to send him to prison for decades, but I've no evidence that's true.

I don't know how to resolve these high-level contradictions based on evidence, particularly when the evidence we do have suffers from undercounts and corrupted data about how many rapes are actually solved. One bit of good news: changes on the misleading data front are apparently in the works.

In response to the Reveal podcast criticizing Austin PD's categorization of "exceptionally" cleared rape cases (see Grits coverage here and here), the FBI will change its definitions regarding what qualifies a rape investigation for "exceptional" clearance, according to a followup story from the Center for Investigative Reporting.

For decades, law enforcement lumped cases which were "cleared" by arresting a suspect into categories along with much more numerous cases where police had identified a suspect, had probable cause to make an arrest, but chose not to do so because a judgment had been made by police or prosecutors that the case wasn't winnable. As with the case in Waco, typically victims weren't involved in or often even notified of those judgments.

Grits cannot presently discern the path leading from an unsatisfactory status quo to a system that more reliably delivers just outcomes in sexual-assault cases. But it's clear to me the justice system as presently constituted exacerbates the problem, and IMO a big source of the disconnect is this conflation of the value society places on victim's suffering with punishment as the "price" paid for crime.

Federal suit challenges TX driver surcharges, debtors-prison practices account for 1/5 of jail admissions, and other stories

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

Federal suit challenges driver surcharge
New federal civil rights litigation  from the group Equal Justice Under the Law has been filed challenging Texas' Driver Responsibility surcharge, reported the Houston Chronicle. See also: the original complaint in the case.

DPS to audit Austin PD rape-clearance definitions
Austin PD has asked the Texas Department of Public Safety to audit how its categorizing cleared rape cases, reported the Austin Statesman. Good. Chief Manley's responses to the allegations before that had been insufficient.

Criminal charges finally cleared vs innocent SA-4
The San Antonio Four have finally had their false convictions expunged, reported the SA Express News.

TDCJ staff allegedly falsified disciplinary records, again
More Texas Department of Criminal Justice staff are under investigation for allegedly falsifying records to make their disciplinary statistics look better, reported the Houston Chronicle's Keri Blakinger. This is a major, ongoing story. There's no telling how deep this rabbit hole goes!

Levin: Debtors-prison policies account for one-fifth of jail admissions
In The Hill, the Texas Public Policy Foundation's Marc Levin had an op ed opposing state-and-local debtors-prison policies. About one-fifth of people entering county jails, Levin declared, are admitted because of failure to pay a government-imposed fine or fee.  RELATED: Threatening letters from a government debt collector. ALSO: N.b., as evidence of the populist basis for opposition to these mulct-the-public practices, a restaurant in D.C. had taken to giving people discounts if they bring in a traffic or parking ticket, and holding a raffle to pay off one person's ticket per month! AND MORE: Check out the Texas snapshot from a 50-state debtors-prison reform tool created by the Criminal Justice Policy Program at Harvard Law School.

De-funding Paxton special prosecutors may impact indigent defense
A Texas Observer report on the Court of Criminal Appeals decision in on payment of Attorney General Ken Paxton's prosecutors raised the same issue about indigent defense as did this Grits post.

8-year sentence for improper voting upheld
The Second Court of Appeals upheld the eight-year sentence of a woman who illegally voted in Tarrant County because she thought she was allowed. The court failed to reach the merits of the argument, declaring her lawyer had not properly preserved an objection. These cases are an embarrassment.

Annual report for Texas judicial support agencies
Read what's happening with a small constellation justice-related boards, commissions, and agencies you've probably never heard of.

Nativist knucklehead peddling anti-Muslim views to law enforcement
Read about a defrocked FBI agent now peddling anti-Muslim conspiracy theories to West Texas law enforcement. smh

McConnell balking on First Step Act
Senators have surpassed the number of yes votes that Mitch McConnell said were necessary to bring up the First Step Act, but the majority leader is still balking.

Other odds and ends
Here are a number of national items and stories from other states that caught Grits' eye this week:

• Urban Institute: Public Investment in Community Driven Safety Initiatives
• Urban Institute: Father reentry and child outcomes
• Brennan Center: An election agenda for candidates, activists, and legislators
• Fair and Just Prosecution: 21 Principles for the 21st century prosecutor
• Pew Charitable Trusts: More imprisonment does not reduce state drug problems
• Marshall Project: How incarcerated parents are losing their children forever
• New Jersey: A newspaper had compiled a database of all police use of force cases in the state.
• New Jersey: Violent crime has plummeted since bail reform was implemented two years ago
• Oklahoma: The state prosecutors association is encouraging the OK Legislature to overturn voter-approved drug-policy reforms; OK voters are pushing back.

Squeaky wheels get grease: CCA posting oral arguments again

Grits had been complaining to court staff about the failure to post videos of Texas Court of Criminal Appeals oral arguments for a couple of months. But they only, finally began posting the video after I publicly wrote about it on the blog last week.

Since your correspondent is both a public-policy advocate and also media, in a sense, I'm frequently afforded a unique perspective when these sorts of situations arise.

There is a telling pattern regarding how government agency leaders and politicians respond to advocates vs. how they respond to the media. Grits gets to see both.

Say a problem exists in government (any problem, pick a problem), but the only people aware of it are those trying to manage it. As an advocate deep in the weeds on policy, one becomes aware of problems about which the general public may not know. As a general model, an advocate might tell the folks in charge of the situation about the problem and, where feasible, recommend solutions. That's the job.

The smartest agency heads will admit mistakes instead of cover them up and attempt to fix the situation then. But most are not the smartest. Most are average. Indeed, by definition, half are below average! And so the typical response is to ignore the problem and stonewall advocates.

Things are different for the media, because drawing outside attention to an issue creates political pressures and hassles, highlighting failures the agency would rather conceal, either from voters or the people controlling its purse strings. So, the Houston Chronicle's Keri Blakinger might see the Texas Department of Criminal Justice act on concerns in her articles when the same problems raised by Jennifer Erschabek of the Texas Inmate Family Association were more easily ignored.

Grits sees this a lot. My go to move as an advocate is not to immediately run to the blog and flame anyone who's not doing what I prefer. There have been plenty of instances when Grits has identified a some glitchy, technical problem in government, shared it with someone in charge, and it was fixed without my ever having discussed it on the blog. By the time I'm writing about such matters, frequently it's out of exasperation, grumpy that I'm having to use political capital to pressure someone to do their job, when quietly fixing the situation would have avoided conflict.

That's sort of the dynamic here. I've been asking the CCA to post this material since before the October episode of Reasonably Suspicious. We had hoped to cover the James Calvert case, argued in September, in a podcast segment. By the November episode, it was still not available. Last week, once more I asked when the files would be posted and was told there was an indefinite delay, that there was no way to tell when they might resolve technical problems. Since the court is, after all, required by statute to post the video, Grits reported that news. And lo and behold, the Calvert file was posted online Monday.

For the record, thank you to CCA and Office of Court Administration staff who finally got these posted. But wouldn't have it been easier and less embarrassing to behave with similar alacrity two months ago when I first inquired?

Texas courts already know how to handle debt without incarceration; now the #txlege should apply those lessons to Class C misdemeanor fines

In a private conversation, a frequent #cjreform opponent recently criticized a proposal endorsed by both the Republican and Democratic Party platforms in Texas to eliminate arrests for non-payment of Class C misdemeanor debt.

"So you're just saying they shouldn't be punished?," our critic wondered, in an exasperated voice. "How is that justice? Should they face no consequence at all?"

We're going to be hearing this argument a lot in the coming months, so let's address it.

First, of course, no one is saying offenders shouldn't be punished. Overwhelmingly, most people who receive traffic tickets just pay them. And states that treat traffic infractions as non-criminal and send the debt to collections have essentially similar payment rates to us here in Texas.

So the question becomes, is it "justice" when a judge assesses debt which cannot be paid but fails to incarcerate the debtor for nonpayment?

Indeed, we need look no further on this question than to the same Texas Justices of the Peace who handle Class C traffic tickets at the county level. Those courts also handle civil claims up to $10,000.

When a defendant loses in small-claims court (it's not called that, anymore, but that's what it is), a JP typically orders monetary payment as judgment.

If the defendant cannot pay, jailing them is not allowed. Instead, plaintiffs must pursue debt collection using other methods, such as liens on property, turnover orders, sending the debt to commercial collections, etc..

We're left to wonder, why is debt to the government somehow such a big deal that it warrants incarceration of those who cannot pay? Clearly, non-carceral methods are sufficient for these same judges to declare "justice" done if the beneficiary of court-declared debt is a person, not the government.

The government has created a double standard to benefit itself. Ethical qualms about the private sector excessively squeezing the poor are routinely ignored in the public sector when it comes to criminal-justice debt, particularly Class C misdemeanor traffic fines.

Locals enjoy wide leeway on these questions and cities' reliance on Class-C-fine debt for revenue varies widely. Though apples-to-apples data is hard to come by, an item in Forbes a couple of years ago calculated 2013 per-capita ticket revenue for US cities with more than 250,000 population: In El Paso, the city received $6.16 per capita from these sources in 2013; in Houston the per-capita figure was $17.89; Dallas, $32.58; Plano, by contrast, received $43.36 per capita. That's all over the map.

Since municipalities which rely more heavily on ticket revenue have lower clearance rates for more serious crimes, no one should aspire to match those higher per-capita totals.

The use of incarceration to punish the poor for non-payment of traffic fines appears flat-out ironic when one considers that wealthier people are more likely to commit traffic offenses. So the class of folks facing the harshest punishments for Class C misdemeanors is also the least culpable. In a nation where 40 percent of the population, according to the Federal Reserve, cannot afford a surprise $400 bill without going into debt or selling something, that makes little sense.

There's nothing sacrosanct about debt to the government, certainly from the point of view of the debtor. From the perspective of the stone, it doesn't matter who wants to squeeze blood from it; none is forthcoming.

Roundup: Lawsuit alleges cronyism and corruption at DPS; murder indictment of Dallas cop no aberration under outgoing DA; informant testimony makes for messy innocence claims; Pam Colloff's favorite #cjreform podcasts, and other stories

Here are a few browser-clearing odds and ends of which Grits readers should be aware:

Dallas cop indicted for Botham Jean murder
In Dallas, former DPD Officer Amber Guyger has been indicted for murder in the shooting death of her unarmed neighbor, Botham Jean. You've got to hand it to outgoing Republican DA Faith Johnson: She's been more willing to charge officers in wrongful shooting episodes than any Democratic elected prosecutor in Texas, or for that matter, as she boasted in this 13-second clip from the campaign trail, any other District Attorney in the country:


Lawsuit: DPS suffers from 'cronyism,' 'corruption'
A federal lawsuit has been filed accusing the Texas DPS under Col. Steve McCraw of "a 'good old boy' culture of cronyism and outright corruption." See initial coverage from KXAN in Austin.

Corrections Committee Interim Report out
The TX House Corrections Committee has published its Interim Report. Topics studied included responses to Hurricane Harvey, the need for specialized programming for 17-25 year olds, flaws in the state jail system, and heat litigation. More on this soon after Grits has had a chance to read it thoroughly.

Creuzot looking forward to Dallas DA stint
D Magazine published an interesting interview with Dallas DA-elect John Creuzot, for those looking for clues as to how this party hopping fixture in Dallas justice politics might operate at the helm of the DA's office. See the October Reasonably Suspicious podcast for excerpts from a debate between Creuzot and his Republican-incumbent opponent, Faith Johnson; the full 1.5 hour debate is here. Note to Judge Creuzot and other incoming elected prosecutors: Consider hiring this guy for prosecutor trainings.

Forum promotes public defender option for Travis County
A public-defender office has been proposed for Travis County. Those interested should check out this recent community forum discussing the possibility. See prior, related Grits coverage.

TDCJ troubles lead to calls for independent oversight
At the Texas Tribune, see coverage of prospects for independent oversight at the Texas Department of Criminal Justice in light of recent scandals, a rise in suicides, and gross understaffing at numerous rural units. House Corrections Chairman James White doesn't sound convinced.

Recanted witness, corrupt DEA agent won't sway Harris prosecutors on innocence claims
Especially in the context of the drug war, but also high-profile murders and violent crimes, the reliance of the justice system on self-interested testimony by confidential informants is one of the most significant causes of wrongful convictions. It's also among the hardest causes to prevent, and one for which the courts are loathe to provide redress. The Houston Chronicle's Keri Blakinger describes a case in which a DEA informant, who has since recanted his testimony, accused Lamar Burks of murdering someone at a dice game. But the Harris County Conviction Integrity Unit wouldn't budge. Now, one of the agents centrally involved with the investigation has been indicted in an unrelated case in New Orleans for perjury and falsifying evidence, evincing a similar fact pattern to what Burks' attorneys allege.

In The Dark shines light on amazing, terrible case
At Pam Colloff's recommendation, I've been listening to Season 2 of the podcast, In the Dark, focused on an apparent false conviction for a quadruple murder in Mississippi. This investigative tour de force is taking the form to new levels. Awesome work, as detailed in this Longform podcast interview about how the story was put together. When I interviewed her for the August episode of Reasonably Suspicious, Pam also recommended the second season of the Missing and Murdered podcast, and the podcast After Effect from WNYC, dissecting the aftermath of a tragic SWAT team raid. Just for fun, I excerpted her recommendations into a short, 2.5 minute clip, for anyone interested:


Sandra Bland documentary premiers on HBO Monday
Last, but definitely no least, on Monday, a documentary titled, "Say Her Name: The Life and Death of Sandra Bland," premieres on HBO. Grits simultaneously cannot wait to see it and dreads the broadcast. It's such a terrible, heart breaking story! Here's a review from the SA Express News, and the trailer:

Say Her Name: The Life and Death of Sandra Bland Promo Cutdown

Union contract fight gave Austin advocates leverage to improve police oversight

Austin Justice Coalition's victory over police union
brings to mind history's greatest upsets

(Updated with background links, photos, and an addendum.)

Although the local media has reported that the Austin police contract was finally approved and activists were happy with the result, only one local TV station report that I saw attempted to parse changes in the contract from a police accountability standpoint.

Advocates' year-long battle resulted in savings of $10 million per year compared to the contract rejected last December, as well as achieving greater transparency about police misconduct, the ability of the Police Monitor to accept anonymous complaints, and an end to the practice downgrading violations after a period of time so that they disappeared from public view (and couldn't be considered by the Chief in the event of future misconduct.)

Activists didn't get all they wanted. Of the six items in Campaign Zero's wish list for accountable police contracts, for example, the Austin Justice Coalition (AJC) and its allies only won one of them. That said, there were other accountability items specific to the Austin contract (e.g., downgrading violations over time) that weren't on Campaign Zero's list, and they were important, too.

Campaign Zero co-founder Sam Sinyangwe with
Austin Justice Coalition co-founder Chas Moore

Compromises notwithstanding, this was a major police-accountability victory. To my knowledge, no police-union contract in the United States, before this one, had been rejected by elected officials because of concerns over police accountability. From the moment the contract was defeated last December, it gave Chas Moore, his AJC compatriots and their allies tremendous leverage; more than police reformers in Austin have had at any time in living memory.

Before the contract defeat, AJC could get no traction for reforming oversight. In the months before last December's marathon hearing, at which the proposed union contract was finally voted down, AJC and allies presented eight reforms to both the City and the police association. The association never sat down with reformers, and the city failed to introduce the ideas into the negotiation process.

Campaign Zero's Deray McKesson with
AJC's policy team in Grits' living room 

But after the entire city witnessed Moore and AJC standing over the defeated police union like Ali looking down at Sonny Liston (shouting "Give us police oversight!" instead of Ali's "Get up and fight, sucker!"), their voices could no longer be ignored.

The union swapped out their president for a new, co-lead negotiator, who in turn reached out to reformers. With strong, continued interest from council offices, the city rolled the reform proposals into the negotiation and discovered that hanging tougher brought rewards. In the version of the contract finally approved, the oversight mechanisms were moved to a city ordinance and the contract includes a more limited list of issues that required police association buy-in. That not only meant a lower cost. It also put the city council back in control of police oversight instead of giving the police union veto power.

As it happens, my wife was heavily involved in AJC's efforts to influence the contract and create a new oversight system for Austin. In the most recent episode of Just Liberty's Reasonably Suspicious podcast, she outlined the changes made and what comes next. Since the details of the new oversight system have received so little attention, I decided to pull out those comments as a stand-alone segment for anyone interested. Give them a listen:

Next month, both Chas Moore and Ron DeLord, the lead negotiator for the police union, have agreed to a joint interview/conversation on the podcast to describe the process and lessons learned from it, so I'm looking forward to that.

MORE: Chris Harris of Grassroots Leadership posted on Twitter this helpful graphic showing the impact of grassroots advocacy on the police-union contract and civilian oversight in Austin. The left-hand column was the old contract; the middle column is the one rejected by the City Council after a populist uprising last December; and the right-hand column is the new, final contract. Quite an improvement, huh? Especially on the price tag!

For more background, see these prior, related Grits posts:

• Austin's police contract among worst in nation from accountability standpoint, says Campaign Zero co-founder
• Checking in on opposition to the Austin police contract
• Overtime for police court appearances a growing cost driver at Austin PD
• Critiquing Austin's police union contract
• Podcast: Police unions, collective bargaining and accountability (three segments)
• Interview: Campaign Zero's Sam Sinyangwe
• A primer for police union leaders on 'making the guilty innocent' after high-profile incidents
• Snippets of opposition to Austin's police contract
• Uncharted territory: Rejected police union contract leaves open many questions
• Journalists failing to call out official lies in Austin police contract debate
• More one-sided coverage of Austin PD retirements
• Interview: Ron DeLord on the Ferguson Effect, police pensions, and why he considers Saul Alinsky a major influence
• Austin police oversight ineffective, says audit; local media silent on narrative-busting analysis
• Austin police union overplaying its hand by rejecting accountability measures

Checking in at the CCA: TX high criminal court hasn't posted oral-argument videos in nearly six months, and other stories

Since your correspondent left the Innocence Project of Texas, I haven't tracked the Court of Criminal Appeals hand-down lists nearly as closely as at times in the past. But here are a few recent items that merit Grits readers attention.

Hiccup in publishing CCA arguments video
Last year, the Legislature mandated that oral argument videos from the Texas Court of Criminal Appeals should be recorded and posted online. But the last ones available as of this writing are from June, and court staff don't know when they will resume posting them.

I'd noticed the discrepancy because my podcast co-host, Mandy Marzullo, and I had hoped to do a segment on the use of "shock belts" in court following oral arguments in the James Calvert case, which was argued Sept. 19. But the recording is still not available.

Grits was told by court staff that the failure to post after June is because of "trouble with the audio." The Office of Court Administration, I'm told, is working on the problem. But it's now almost six months since they stopped posting oral arguments. Surely that should have been enough time to implement some sort of Plan B to begin recording again.

Shoplifter acting alone can't commit organized crime
Judge Elsa Alcala recently prevailed on the rest of the court to declare that a single episode of solo shoplifting, in which the defendant acted by herself and not in concert with others, did not qualify for enhancement for punishment as "organized retail theft." Here's her opinion, and Judge Keller concurred. Judge Yeary alone dissented, attempting to stretch the bounds of the statute far beyond reason, good judgment, or the well-documented legislative intent behind the statute. (Upon reading his opinion, I could not understand why he would choose to die alone on that hill.)

We're really going to lament Judge Alcala's departure from the CCA once she's gone. She's become an intellectual leader on the court who will be sorely missed.

Five-member CCA majority bucks GAW faction, trial court to declare defense counsel ineffective
An unpublished, per curiam opinion garnered four dissenters (the entire Government Always Wins faction) but no dissenting opinion earlier this month. The defendant alleged his trial counsel was ineffective because of his "failure to note that the foreman of the grand jury was also empaneled and served as the foreman of the trial jury, failure to file pre-trial motions to suppress, failure to object to the introduction of Sheriff’s Department offense reports into evidence, failure to present alibi witness testimony, and failure to advise Applicant that the decision of whether or not to testify was his to make."

The trial court in Newton County recommended denying relief. But five members of the Court of Criminal Appeals decided to overturn the conviction, granting the defendant a new trial. And whatever reasons Judges Keller, Hervey, Keasler, and Yeary had for dissenting, they chose not to share them.

5-4 is close, and the story line about the grand jury and petit jury having the same foreman is a twist I've never heard before. Nor is it typical for an unsigned, per curiam opinion to have four dissenters, much less for none of them to articulate the reasons for their dissent. The dynamics surrounding this case imply a lot of backroom drama, even if there's not much paperwork to document it.

Paxton prosecutor legal-fee decision may impact indigent-defense cases
The case over legal fees for special prosecutors in the Ken Paxton indictments perhaps predictably was decided based on political rather than legal considerations, with significant unintended consequences potentially resulting. The court's majority was under pressure from Republicans to shut down the prosecution of the state Attorney General, siding with pols in Paxton's home county to refuse to pay special prosecutors their legal fees. See coverage from the Texas Tribune.

Judge Mary Lou Keel seemed fed up with her colleagues in the majority, accusing them of re-ordering and re-wording statutes and case law to "mask" their real meaning and "disregard" the clear intent of the statute. I thought she made mincemeat of the central argument in Judge Bert Richardson's concurrence.

Both she and Judge Alcala made the case that the majority opinion would impact indigent defense payments. Alcala declared the opinion was "effectively a decision to deny paying a reasonable fee to defense attorneys appointed to represent indigent defendants, and that will likely result in more cases of ineffective assistance of counsel."

Not only was the court majority legislating from the bench, Alcala observed, but it was doing so badly. "It is improper for a decision granting mandamus relief to create new law, but it is an even more dire situation when the new law, as here, results in manifest injustice due to its newly created policy."

The majority botched the issue so badly it could even require legislative intervention. It's possible counties won't be able to find lawyers to take on complex cases if they may be limited to low, flat fee based on standardized schedules, no matter how many hours they put in on a case.

Prison-reform pioneer passes, bail-algorithm debate heads to Dallas, political parties want consent for auto searches documented, and other stories

With a few work items out of the way, today, it's time for a roundup post to clear Grits' browser tabs to start the week:

Ray Hill is dead; long live Ray Hill!
One of Texas' best known prison reform and LGBTQ activists, Ray Hill, founder of The Prison Show radio broadcast on KPFT, a public radio station in Houston, passed away over the holiday. Go read his obituary from the Houston Chronicle. He was an unforgettable character and a Texas justice reform pioneer. MORE: A further remembrance from Lisa Gray. AND MORE: From the Texas Observer.

Bail algorithm debate heads to Dallas
In Dallas, county reporter Julieta Chiquillo offered up a story this weekend titled, "Four things you need to know about Dallas County's plan to determine bail with algorithms." Reporters don't write their own headlines, so don't blame Ms. Chiquillo, but the first thing one needs to know is that bail in Dallas will not be determined by algorithms. No matter what the final form of this looks like, judges will continue to make the final decisions regarding who is detained and setting release conditions. See Grits' past discussions of the topic here and here.

Rs and Ds want consent for auto searches documented: Prepping for the debate
One of the #cjreform platform planks that made it into both the Republican and Democratic Texas state party platforms in 2018 was to require written or recorded consent of drivers' consent to search when police ask to search their vehicle at traffic stops. So I was interested to see this academic article by DePaul's Susan Bandes titled, "Police Accountability and the Problem of Regulating Consent Searches." Indeed, in preparation for those debates, Grits had flagged a recent article from the Texas Law Review on consent searches titled, "Ignorance and Democracy," another from the St. Johns Law Review called "A Warrant Requirement Resurgence? The Fourth Amendment and the Roberts Court," and finally, a book chapter titled "The Language of Consent in Police Encounters."

SPU Spews
Jon English, who works at the Special Prosecution Unit prosecuting crimes by inmates and staff at Texas prisons, authored a column describing his unit and what it does. Anyone interested should give it a read, it's a good window both into the job and how the people who do the job view the job.

Red-light cameras under fire
Will the Texas Supreme Court end the use of red-light cameras before the Texas Legislature does? Chuck Lindell describes the case before the TSC on the topic.

SCOTUS considers asset-forfeiture constitutionality
Reformers were already preparing asset forfeiture reform legislation in Texas, but depending on how the US Supreme Court rules, in an Indiana case pending before them, much of it may be moot. George Will, of all people, recently laid out what is at stake in the case.

Ready for a First Step
Whether the federal First Step Act passes is up to Senate Majority Leader Mitch McConnell. Everyone else is ready to vote.

German prison model light years from Texas, but provides vision small-ball proposals lack
Some blog readers consider Grits a radical when it comes to decarceration. And for Texas, maybe I am. But go read what prisons are like in Germany. Their government policies go far beyond anything I've ever dared advocate on this humble opuscule. Most proposals on Grits amount to suggestions for limiting bad outcomes. This article suggests what it might look like if prisons fundamentally embraced a rehabilitative, rather than a punitive mindset. What a sensible, public-safety minded approach! And yet, if you put the high points into a bill at the Texas Legislature, it'd be dead as a door nail. That's why, in Texas, #cjreformers historically have worked on small-ball decarceration and innocence measures; that's what can pass.

Burn It All Down
Off topic, but over the holiday, I found myself somewhat obsessed with a self-defined, feminist-sports podcast, Burn It All Down, whose hosts include Austin-based rock-star sportswriter Jessica Luther (who is the reporter primarily responsible for exposing alleged sexual-assaults by Baylor football players). Their premise is "the feminist sports podcast you need," and I must admit, having been unaware I needed one, they were right. Their coverage of whether toxic farts at a British darts championship gave the winner a competitive advantage was worth the price of admission. :) I've been listening to back episodes over the weekend, and subscribed going forward. I'd easily watch these gals over most of the ESPN afternoon sports-talk lineup.

Two Dirty Little Secrets About the 'Distracted Driving' Debate

The Houston Chronicle has published a series on traffic deaths which, from Grits' observation, mostly has repeated tropes from self-interested secondary sources rather than investigate causes and solutions.  Only one article in the series - on traffic engineering - advocated for solutions Grits believes would significantly contribute to traffic-death reductions. The rest gave platforms for elites to promote their own, self-interested agendas.

Readers will recall the Chron's extended advocacy piece masquerading as news advocating for an increase in patrol officers to make DWI arrests. Having covered the vagaries of DWI arrest-and-death data for several years, Grits responded to point out that, in fact, there appeared to be little relation. DWI enforcement has plummeted in recent years, along with traffic enforcement, as police shifted to other priorities and the Department of Public Safety increasingly sent its traffic-patrol force to the border. But per-capita DWI death rates declined, despite the radical drop in enforcement. The Chronicle ignored that data to advocate for more arrests.

Their latest offering promotes the fake-news media bugaboo of distracted driving, calling for a criminal ban on talking or texting on the phone while driving and stiffer enforcement of current prohibitions.

I say "fake news" because the press have chosen to hone in on banning cell-phone use despite evidence that a criminalize-it approach doesn't work and may do more harm than good. That's what happened here, and in this case, I'd presented the reporters with contrary information that they either downplayed or didn't report.

The article significantly, and one must conclude, intentionally, overstates the extent to which cell-phone distractions contribute to deaths. But because they had seen the contrary information (I sent it to them), they phrase it in a way that acknowledges the counter-narrative then ignores the implications to pivot to a relatively minor cause of "distraction." Their commentary avoids ever making a declarative statement saying cell-phone use is a significant cause of traffic fatalities (since really, it is not), instead declaring experts are focusing on it, which apparently gives the authors license to never focus anywhere else. Here's their assessment of the problem:

The problem of distracted driving is as old as the automobile. Cellphones get the bulk of the blame of late, but safety experts say a range of features and pastimes — from stereos to food to the seemingly endless variety of gauges, indicators and dashboard displays — can present a danger. Sometimes the distraction is not even inside the vehicle; roadside vistas or startling scenes draw drivers' attention away from the lanes ahead. As long as people have passengers or the propensity to daydream, drivers will always have something else on their minds.

The issue has particular relevance in Houston and Texas, where cars are personal and sacred spaces, in part because of how much time drivers spend in them. The average one-way commute in the Houston area is nearly 30 minutes, and it is not uncommon for workers to spend an hour or more in the car each morning and evening.

So drivers pass the time as pleasantly or as usefully as they can. They listen to music or podcasts. They make work or personal phone calls. They eat and drink. During the morning commute, drivers can check their rear-view mirrors and see a man making last-minute hair fixes or a woman applying makeup. Many are doing multiple things at once, such as smoking a cigarette while holding their phone while reaching to turn down the radio or grab a sip of coffee. 

All of it adds up to distraction. Safety experts have zeroed in on cellphones, mostly because the devices have become ubiquitous in everyday life.

The rest of the article is an advocacy piece for criminalizing cell-phone use in the car, masquerading as a news article. Like the unnamed experts, the authors "zeroed in on cellphones" while ignoring much more significant distractions.

Conflating "distracted driving" with cell-phone use and focusing on the latter is like trying to reduce one's carbon footprint by installing a single, energy-efficient light bulb in the utility room while driving a gas-guzzling SUV.

Here's Dirty Little Secret #1 about this debate: People who are prone to distraction will find something to distract them. Take away one distraction and they will find another. Mainly we're talking about young people, whose accident rates were higher than adults long before smart-phones showed up on the scene.

Daydreaming is a bigger distraction, by far, than talking and texting on the phone combined. Should we criminalize that? In my own experience, trying to manage or discipline kids in the back seat while driving can be a bigger distraction than any phone call, in part because it can require looking back and taking one's eyes off the road. Number two for me would be fiddling with the radio (at least, before the radio was replaced by my phone). But I've never heard any of the distracted driving whiners suggest bans on those common behaviors.

Ditto for eating in the car; reporters do that routinely so THAT'S not going to be the low-impact behavior they choose to castigate. And while, because of gender-subject position, I cannot speak with first-hand knowledge, I've wondered with amazement as I've seen women in traffic putting on their make up in the rear-view mirror. It's hard to imagine a greater distraction than that, short of just opening up a broadsheet newspaper and reading a bullshit article about distracted driving.

In reality, only 1.2 percent of fatal traffic crashes involve distracting cell phone use. And indeed, late in the article, after laying out their advocacy argument for increased criminalization, they acknowledge the data don't justify their suggestions under a subhed labeled "Irregular reporting." "From 2010 through 2017, there were 4,997 roadway fatalities in the region, and crash reports listed a cellphone being in use in only 60 of them," they inform us, which would seem to be a de minumus source, in the scheme of things.

Rather than accept the implications of the data in front of them, they quote someone paid to "advocat[e] nationally for tougher phone laws" declaring "We're quite certain it's underreported." The rest of the article goes on in detail about how few people are ticketed for texting while driving and implicitly chastising agencies that don't share the reporters' priorities.

Given that per-capita traffic-death rates have been declining in Texas, it's hard to see where this supposed epidemic is causing some new raft of problems.

Indeed, nowhere in the article do we see mention of a study by an insurance-industry institute, which I told them about, which found that states enacting texting bans had higher texting-related-death rates as a result. The insurance-industry folks behind the study hypothesized that criminalizing the behavior made people hold their phones in their laps instead of up by the wheel where they could keep half an eye on the road.

Whatever the reason, shouldn't that counter-intuitive result  at least be part of the calculus? Shouldn't Texas learn from the mistakes of other states and not pass laws that may increase traffic deaths? For that matter, should Houston Chronicle readers be made aware of real-world results that contradict the thrust of reporters' advocacy for criminalizing widespread behaviors?

Which brings us to Dirty Little Secret #2: Cell-phone bans are a blame-the-victim coverup by politicians to shift attention from their own failures to invest in road safety. That includes both public transportation in and in between major Texas cities, and the sorts of traffic-engineering investments described in their one, useful article in this series.

Because roads are expensive and Texas politicians for two decades have been falling over themselves to outdo one another on who is the most anti-tax, Texas has failed to invest in its road systems, in its bridges and overpasses, in accommodations for cyclists and pedestrians (and now, scooters), much less in engineering improvements that would increase traffic safety. And this failure to invest is costing lives, as Grits wrote back in 2014:

By contrast, few politicians want to talk about the much more significant cause of fatal accidents in Texas: Under-investment in transportation infrastructure, particularly in the oil patch where the Eagle Ford shale region has seen a 40 percent increase in fatal crashes, but really throughout the state. Those parsimonious budget decisions at the Legislature are contributing more to the traffic fatality total than drivers talking on cell phones. But it's not as much fun to hold a press conference demagoguing against oneself. So it's better from a pol's perspective to find some group to blame and criminalize, like cell-phone users, even if in the scheme of things that's not the most common cause of driving fatalities, by a long shot, and bans may even make the problem worse.

And lo and behold, which Texas legislator is the state's most vocal proponent of texting-while-driving bans? Why, it's state Rep. Tom Craddick, a former House Speaker who represents the Permian-Basin-oil-patch, but whose leadership did not coincide with investments that might have prevented the spike in deaths described above.

As it turns out, the majority of Texas traffic deaths are in rural areas; by contrast, about 15% of the state's population lives in rural areas. That means a lot of the urban, commuter-oriented critiques on which the Chronicle focused miss the big-picture patterns driving traffic deaths.

This focus on "distracted driving," in Grits' view, is at root a self-interested distraction for the public aimed at diverting attention from the much more significant causes of traffic deaths - mainly failure to invest in various types of infrastructure. Those stem from politicians' direct decisions, for which they could and should be held accountable. By name. During elections.

Instead, the newspaper quotes those same politicians blaming the public for using their phones while they're stuck on the dysfunctional transportation system their government has provided them, in the Houston area, sometimes for hours at a time. And they do so even though they know (because data they reported show it) that cell-phone use is at most a minor contributor to traffic deaths.

This is lazy reporting. Not only does it ignore data in the authors' possession and fail to follow up on its implications, the narrative it presents told us nothing that hasn't already been reported a hundred times. More, even, than promoting misinformation in service of an elite agenda, un-originality may be these reporters' most serious offense.

Memories of Thanksgivings past: Clemency campaign collaborator ended his life after a terrible crime

Keri Blakinger has an awesome Twitter-thread about spending Thanksgiving in prison. Go read it. She's amazing.

This made me wonder, perhaps for the first time, whether I'd ever published Thanksgiving-themed commentary on Grits. Out of 9K+ posts, I found just two: One was an account of a Thanksgiving meal at a Texas youth prison in Giddings back in '07. The second, in 2011, was a complaint about President Barack Obama's then-chintzy clemency record (it improved dramatically in his second term), criticizing him for pardoning turkeys while quoting a writer, O. Henry, who probably deserved an innocence-based pardon (and certainly deserved one based on his rehabilitation and achievement in later life) for an alleged bank-fraud crime committed in Austin, Texas.

As it happened, an academic named Peter Ruckman, who ran a blog called Pardon Power and was one of a handful of national experts on both presidential and state-level clemency issues, also latched on to the President's O. Henry comments. Grits had been nagging then-Texas Gov. Rick Perry for years to improve his clemency record, so Ruckman and I had become online blog-friends (we never met in person), as he helped me understand how to parse clemency data I was getting in a jumbled mess from the Board of Pardons and Paroles.

Anyway, Prof. Ruckman and I launched a somewhat tongue-in-cheek campaign in 2011 to "Pardon O. Henry," chiding the President for quoting someone denied a pardon to celebrate pardoning turkeys. We created a website to gather petition signatures. I did a little research at the Austin History Center and the O. Henry museum here in town, reading tons of short stories and a half-dozen O. Henry biographies. And Ruckman created a formal posthumous pardon application, vigorously lobbying the Justice Department before it was was eventually denied. We had some fun with it; I learned a lot from the process, both about federal clemency procedures and a beloved American writer. Pete was easy to work with throughout, and a nice guy.

In his second term, Obama dramatically ramped up his use of clemency power, which ultimately was the desired result. But there's a melancholy note I never reported to readers who may remember this long-defunct campaign. Ruckman and I stayed minimally in touch, but I hadn't heard from him for a couple of years when news came this spring that the professor, having reportedly spent much time in a bitter marital breakup, murdered his two sons, 12 and 14, then committed suicide.

I've known this terrible news for several months, but hadn't written about it on the blog. What is there to say? It's about the most awful thing imaginable. However, reconsidering Thanksgivings past, as Keri inspired me to do, made me think of O. Henry, Prof. Ruckman, and his tragic story this afternoon, so I decided to pass it along. Now, Grits fears the president's dumb-ass turkey pardon will annually trigger memories of this macabre coda to what otherwise was a fun and educational little campaign we did together.

Reasonably Suspicious podcast: TX elections through a #cjreform lens, artists confront the justice system, update on Austin police contract victory, and a bid to ban forensic hypnosis from Texas courtrooms

If you find yourself with a spare 45 minutes over the holiday, or get bored on the ride home from Grandma's, here's the November 2018 episode of Just Liberty's Reasonably Suspicious podcast. As always, you can also listen to it on iTunes, Google Play, and SoundCloud.

This month:

Top Stories

• Elections: DA race updates; judicial races, and #cjreform implications for Harris County turning blue.
• Artists confront the justice system in exhibit at Houston museum.

Interview
Kathy Mitchell on the Austin police contract

Forensic Focus
Bill filed to eliminate forensic hypnosis

Fill in the Blank

• Austin PD rape clearance rates inflated?
• Bipartisan debtors prison reforms

The Last Hurrah

• Federal First Step Act teetering; Ted Cruz leaning no
• Texas doesn't track children of incarcerated parents
• Journalist who made up quotes had other shortcomings

Find a transcript of the podcast below the jump.

Texans think justice system skewed against poor, support end to debtors-prison practices

Stagnant wages and empathy for economic struggles, combined with questions of pragmatism, have caused debtors-prison reform to emerge as a sleeper-hit with the public, judging from recent public-opinion assessments.

Yesterday, Grits cited a new poll which found that "81 percent of Texas registered voters believe the wealthy enjoy substantially better outcomes in the criminal justice than poor and working-class people." That's an overwhelming majority who believe that poor folks aren't treated fairly in the system.

These findings corroborate sentiments documented in a recent statewide survey conducted by the Texas Office of Court Administration:

• Only one third (33%) agree that the average person can afford court costs and filing fees.
• Slightly less than 3 in 10 (29%) agree that Texas courts treat people alike regardless of socio-economic status.
• Two thirds (66%) disapprove of jailing people who owe court costs and filing fees when they cannot afford to pay.

So Texans think average people can't pay court costs, poor people are discriminated against, and the government should stop jailing people who can't pay debt to municipal courts.

Moreover, skewing government priorities toward debt collection has negative implications for public safety. For example, we know that cities that rely heavily on ticket revenue tend to have lower clearance rates on more serious crimes.

It's easy to see why the public thinks justice debt is such a big problem for low-income individuals. Earlier this year, the Federal Reserve estimated that 40 percent of Americans could not pay a surprise $400 bill without borrowing or going into debt. It's easy for municipal-court debt to exceed that amount. And many people owe more than that in delinquent Driver-Responsibility surcharges.

That's why, earlier this year, both Texas state political parties added platform planks advocating to stop jailing people for unpaid traffic ticket debt, instead sending unpaid bills to commercial collections. Roughly half-a-million people sat out traffic ticket debt in jail last year statewide, so that change would help out a lot of folks.

Clearly from these survey data, most Texans believe that jailing people for muni-court debt unfairly harms the poor and needs to stop. We'll find out over the next six months whether the Legislature will embrace this emerging, surprisingly popular view.

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 Illinois 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 prisons 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 Illinois, 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.