Friday, July 22, 2016

Black Lives Matter well-positioned to win concessions on police, if ...

Black Lives Matter is formally an organization and has a chapter here in Austin, but really #Blacklivesmatter is an amorphous, broad-based movement with decentralized leadership and an enormous opportunity to accomplish concrete goals to improve American policing. Grits supports that effort. However, having worked on these and related issues for more than two decades in a red state, I'm fearful BLM may blow this rare and precious opportunity.

Grits has little patience for demagogues blaming Black Lives Matter for criticizing videos of police abuse or the media for showing them. The behavior depicted on the video is the source of people's anger, not the (admittedly enhanced) smart-phone era information delivery system. People didn't need the internet to riot after Rodney King's attackers were acquitted. The Watts neighborhood in Los Angeles didn't even need video in 1965 to riot for six days in response to the roadside beating of a black DWI suspect and his mother. Anger at images of police mistreating civilians is legitimate and understandable; indeed, at this point, from a certain perspective, it's unavoidable.

OTOH, I'm also frustrated that BLM's policy goals, which are extensive and pretty darn good, won't be achieved if they can't convince white folks, who like it or not still constitute a majority nationally, to support them. BLM has plenty of white allies, but to win legislative and congressional votes they need legislative allies from white, mostly Republican districts, which is a slightly different breed of cat. Reaching those voters is possible, but will require adjustments to messaging and perhaps different messengers to deliver them.

Too often, the BLM rhetoric I hear locally and nationally sounds like black folks talking exclusively to black folks. That's certainly their prerogative, but it won't change how police use force in America and it contributes to a false sense that the movement is exclusionary. Meanwhile, if you don't engage white folks on terms they can understand, the authoritarian side has a massive, government-funded PR machine to promote messages favorable to law enforcement and the white establishment. Big-city PR divisions of police departments and DA offices these days are well-staffed with professional level skills and frequently are quite proactive. In fact, police PR departments are best at appealing to precisely the constituency - older, conservative white people - with whom Black Lives Matter has the most difficulty. When you look at the success of Right on Crime and the libertarian streak which cuts a large swath among anti-establishment conservatives, Black Lives Matter should have more allies among Republicans than have evinced themselves so far.

Perhaps because of Grits' political consulting background, I take polling pretty seriously. Pew came out with a good one recently, though the survey was taken before the Dallas-Baton Rouge shootings.

The good news: Of those with an opinion, 43 percent of Americans support Black Lives Matter and only 22 percent oppose it. So the movement is far more popular and has many fewer critics than either presidential candidate, for example (even if those critics are loud and have disproportionate access to soapboxes). Notably, though, "a sizable share (30%) said they have not heard anything about the Black Lives Matter movement or did not offer an opinion."

White folks overall support Black Lives matter by a 40-28 margin. But in this country, political parties are largely divided by race, with Republicans having morphed into the party of (increasingly old, conservative) white people. And Republicans oppose BLM by a 53-20 margin. (Dems and Independents were supportive.) So when you're talking about white districts, those are the voters who must be moved. Legislators in those seats must either be convinced or replaced for BLM to prevail. And if you're going to convince them, most Rs are moved more by arguments about rights than race. Luckily, those rights arguments are right there to be made.

There's plenty of margin within these numbers to chart out a path to victory. Of the thirty percent of the public who offered no opinion of Black Lives Matter, the movement has an opportunity (arguably even an obligation) to identify and educate those folks and make their case. If that work is done, they'll earn their share of those people. Still, it's remarkable that number is so high. Think how far outside the world of American public, civic life one would have to be to have no opinion on BLM in 2016!

My main concerns for the Black Lives Matter movement are two-fold. From an organizational standpoint, I fear that social-media-based organizing may not be sustainable nor sufficiently focus the movement's power if not eventually supplemented by traditional, professional listbuilding and political targeting work and more disciplined communications strategies. Even if they began now, they've missed some tremendous organizing and list building opportunities. The movement needs a less diffuse, more driven voice of the sort that a strong national organization with lists and money could provide, one capable of educating and activating its base in support of a declared agenda the way the NRA does, for example, on the Second Amendment.

Second, I don't think the movement is communicating its best messages well to white folks. Indeed, it's nearly a certainty no movement group has done polling to even determine what the best messages are! Remarkably, despite a well-developed policy agenda, a large number of white folks who support BLM can't articulate the movement's goals. According to Pew:
about a third (36%) of those who have heard about Black Lives Matter say they don’t understand its goals too well – or at all. Blacks who have heard at least a little about Black Lives Matter are far more likely than whites who have some general awareness of the movement to say they understand its goals very well (42% vs. 16%). About four-in-ten whites who have heard of Black Lives Matter (38%) say they don’t understand the movement’s goals particularly well.
That's a problem! Despite far less robust communications methods, you can pretty safely bet nobody in MLK's civil rights movement was unclear about their goals.

If the movement doesn't better define its own goals, others are chomping at the bit to define them preemptively as anti-cop, anti-white, pro-violence, etc.. Once the conversation shifts to policy goals, white folks will see things in them that would help them, too: Funding and incentives for deescalation training, demilitarization of equipment and training, reduced police union power over discipline and budgets, greater transparency about officer misconduct - these are the sorts of goals articulated in Campaign Zero with broad appeal to white folks and the power to convince a big chunk of that undecided 30 percent. OTOH, when the conversation is driven entirely by nationally publicized videos and calls for punishment of rogue officers, much less retaliatory attacks on cops, white folks may see the movement's goal as retribution instead of redemption and its motivating impulse as anger rather than love.

It's also important to be clear on one's goals so that you don't miss opportunities to promote them. The New York Times reported this week on a four-hour meeting between Barack Obama and BLM movement leaders, after which they expressed frustration that he'd not acceded to their demands. The primary demand was that he visit Baton Rouge and the site of other police shootings. They also asked him to "appoint special prosecutors to investigate the deaths and use his executive power to force changes in police departments across the country."

That sounds to me like a missed opportunity. The Baton Rouge visit is pure symbolism and wouldn't have been my top priority in a sit-down at that level. And there are understandable reasons not to federalize prosecution of every shooting death at the hands of a police officer. Certainly, if done en masse, there would be push back from states and the courts alleging overreach. One might come to regret such a policy under a future, less sympathetic president and Attorney General. Plus it would require agreement from Congress to fund 1,000 special prosecutors per year, and that money will not be forthcoming during this administration. Aside, perhaps, from attempting to federalize a uniform, national use-of-force standard, for which quite frankly the intellectual and political groundwork probably has not sufficiently been laid, it's hard to see how much effect federal executive orders could have on the behavior of local police officers in the street.

With all that said, it's not too late to build the movement into a perennial powerhouse for the foreseeable future. There's no question we're going to see more and more cases with compelling video and stories of black folks being shot or mistreated by police. It's nearly as inevitable as the sunrise.

Por ejemplo, this week comes another pair of disturbing videos. Out of Florida in this astonishing video, a black behavioral therapist was trying to coax an autistic man who'd run away from a facility out of the middle of the street, where he was playing with a toy truck. Laying on the ground, hands up, speaking calmly to the officers, it's clear the therapist worried more that they were going to shoot his cluelessly content client. Until they shot him.

Here in Austin, new video shows a local schoolteacher being pulled out of her car (reminiscent of Sandra Bland), manhandled, and violently flung to the ground by a muscled-up APD officer twice her size, coupled with video shot from a side angle in the back seat of the police car in which she questions the officer why that happened and he declares flatly that blacks are more prone to violence and most white people are afraid of them. (Chief Art Acevedo said he was "sickened and saddened" by the episode.)

These sorts of videos will only keep coming, and they won't only depict black folks. (See here, here, and here, e.g., for recent TX examples of police violence vs. white folks, the last of which was shared by 980+ people and viewed 100K+ times on Facebook.) So there will be many opportunities for reframing these questions, to the extent that movement leaders can pivot the conversation onto more favorable terrain.

Thursday, July 21, 2016

Save lives by limiting police pursuits

In the wake of a terrible crash that killed a Patton Village police officer and an 11-year old boy, State Sen. John Whitmire called on police departments to make law-enforcement pursuit policies public. Reported the local paper: "A Chronicle review of recent Houston-area chases from April through June found 13 crashes over 13 weeks that led to six deaths and nine injuries." The tendency of law enforcement in the past has been to blame the suspect being chased and disavow all responsibility for such deaths.

But in recent years, amidst growing evidence that chases are more deadly than previously understood, some larger departments have restricted police pursuits to protect both officers and the public. Police officers are more likely to die in traffic accidents than to be shot. And high-speed chases, it turns out, are one of the most dangerous activities cops engage in, both in terms of threat to self and the public. More attention is generally paid to police shootings, but the lives of those killed during police pursuits matter, too - particularly innocent bystanders not involved in the chase. Frequently, those fleeing are immature or stupid, not necessarily dangerous, and letting them go poses less public safety risk than a balls-to-the-wall high-speed chase scenario. With dashcams and increasingly ubiquitous urban surveillance, suspects usually can be identified and arrested later with much less risk to officers and the public.

The Chron reported that many Texas police departments refuse to make their pursuit policies public. However, this is but a symptom of a broader problem. Since the Texas Supreme Court expanded the law-enforcement exception to the open record law in 1996, and the Lege codified the bad ruling the following year, many departments have begun to keep their written policies secret, including for use of force. These secret instructions about police officers' most critical decisions breed distrust and make it look like department brass have something to hide.

New tech that fires GPS tracker darts at a suspect vehicle may reduce the number of chases at the margins, but the equipment is expensive and can't replace good judgment or sound departmental policies.

Could state legislation address this issue? It's difficult, but there could be a few policy prescriptions they could implement at the statewide level. For starters, police policies should be made public, about pursuits, use of force, and all else. Law enforcement in America should not be operating under secret orders.

Further, Grits would like to see the Lege restrict chases for traffic offenses and other minor crimes. Recent deaths involved shoplifting suspects and a man who allegedly urinated in public. Enforcing these laws isn't worth the death toll. Perhaps it's time to consider a statutory ban on high-speed chases except for those suspected of violent felonies.

Whitmire's Senate Criminal Justice Committee has been tasked with an interim charge to analyze officer safety, and it's understandable that folks will want to discuss the murder of officers in Dallas and Baton Rouge in that context. However, there's not much police can do to stop a military-trained sniper from taking action. And there's a lot that can be done to prevent officer deaths in traffic accidents, not to mention prevent loss of life among innocent bystanders and suspects.

Sunday, July 17, 2016

Why the increase in number of Texans shot by police?

The number of people who die while being arrested by a Texas law-enforcement officer nearly doubled between 2005 and 2015, according to data compiled by the Dallas Morning News, with police shootings accounting for nearly all of the increase. For context, the total number of arrests over the same period declined by 20 percent, so not only are more people being shot, more are being shot per police encounter. An extraordinarily pregnant Brandi Grissom reported that:
More than half of the deaths from 2005 to 2015, 511 cases, were considered justifiable homicides, instances in which police used deadly force on a suspect because they feared for their own lives or the lives of others. And those numbers have been rising, from 32 justifiable homicides in 2005, to 61 in 2014 and 54 last year.
The bottom DMN graphic at right depicts the leading causes of deaths in police custody, with a significant spike in deaths that agencies reported as "justifiable homicides." (The other leading death causes: "In 126 incidents between 2005 and 2015, suspects police encountered took their own lives. Another 121 of the deaths were attributed to drug and alcohol overdoses.")

Asked to explain the rise in shootings during a period when overall arrests steeply declined, our pal Charley Wilkison, lobbyist for the Combined Law Enforcement Associations of Texas, offered an absurd analysis:
Charley Wilkison, executive director of the Combined Law Enforcement Associations of Texas, attributed the rise in violent confrontations largely to increasingly aggressive suspects who refuse to cooperate with officers.

Officers are “facing a new kind of lawlessness,” he said, “a sense that police are not necessarily on the side of the public that’s being broadcast far and wide.”
The only problem with Charley's analysis is its utter falsity. Far from a "new kind of lawlessness," crime in America has declined overall since 2005 and police are safer on the job today than they've been in many decades. The folks who collect your garbage are much more likely to die on the job. Indeed, the recent tragedy in Dallas makes it easy to forget that most on-the-job police deaths stem from traffic accidents, exacerbated by an officer culture that disdains seat belt use.

No, with arrests and crime both declining, and with the increase in shootings predating Ferguson and Black Lives Matter, one can't reasonably blame negative publicity for increased police shootings. I've never understood that whole Ferguson-effect argument, anyway: The claim seems to be that cops feel unfairly blamed for misconduct and this causes them to misbehave, fail to do their jobs, shoot more people, or something. The meme morphs with every iteration and comes off as more of an excuse than a valid reason. Since when does being criticized excuse poor performance? Perhaps instead the criticism results from poor performance, coupled with a staunch refusal to accept responsibility? That reasoning seems just as likely.

Brandi's story runs through several hypotheses besides Charley's to explain the data, but none of them strike me as especially convincing. A Dallas attorney rightly blamed legal precedents that shield bad cops and departments from liability: “There is no legal incentive for a municipality to have a policy that discourages lethal force in certain instances.” I agree, but that was equally true before 2005.

Another suggested reason was law enforcement training: "Some law enforcement experts and lawyers attribute the increase to lax police training that fails to teach officers how to de-escalate sensitive situations. They also contend there is little accountability for officers who kill in the heat of the moment." Again, there's  little doubt that's true. But I'm not sure training changed substantially over that period, so it's unclear how much explanatory value that has.

Grits has a few gut-reaction thoughts on why shootings by police spiked, though these are mere hunches, not evidence-based assertions.

First, we must note that it's possible the recent rise isn't particularly significant at all. Police shootings occur in such a small percentage of police-public interactions that these could be normal variations, not exemplary of a trend. We're dealing with extremely small numbers.

To the extent the increase does represent a meaningful trend, however, let's hypothesize other possible causes.

Could increased militarization of law enforcement equipment and training have anything to do with it? Military tactics have migrated to even the most common points of interaction with the "non-criminal suspect" population - traffic stops and event security. One recalls that Round Rock PD officers used "Points of Domination" techniques adapted from military methods when removing Slade Sullivan from his pickup face-first, resulting in his paralysis and ultimately his death. How widespread are such tactics and to what extent have they contributed to deaths in custody (besides Sullivan's)? ¿Quien sabe?

In a related development, might hiring preferences for Iraq and Afghan war veterans have infused law enforcement with new, young officers schooled in military approaches and conditioned by training and combat experience to shoot more quickly than perhaps is appropriate in peacetime settings?

Another thought: Could pro-police sentiments among the public after 9/11 have shielded police from accountability in ways that discouraged criticism or discipline of bad cops?

Or, here's one I seldom hear discussed: Perhaps increased access to criminal history records contributed to the trend? One of the biggest changes to front-end policing in the last ten years has been expanded access to real-time criminal history data. A police officer who pulled someone over at a traffic stop 15 years ago might assume a driver was guilty of nothing other than running a stop sign or driving 50 in a 40. Today, that officer may know before they even get out of the car whether a driver has a prior criminal record. And that knowledge could influence how they approach the stop, making them more prone to be nervous and jumpy. Texas has dinged millions of people with criminal convictions in recent decades. The vast majority are otherwise indistinguishable from anyone else until the moment the officer runs their plates or checks their drivers licenses. Has that added knowledge needlessly amped up some encounters? It would only take a few to explain these data.

Who knows? I'm spitballing here. It's difficult to imagine an explanation which fits the timeline. Readers should take a look at Brandi's article and use the comment section to suggest other possible explanations for the rise in shootings by police since 2005. Perhaps y'all will think of reasons Grits hadn't considered.

By what benchmark should we judge prison spending growth?

The Texas Tribune recently reported that prison spending in Texas "increased by 850 percent between 1989 and 2013, while the rate of funding for pre-kindergarten to grade 12 education grew by 182 percent." This more or less jibes with other recent estimates out there. Earlier this month, the Alliance for Safety and Justice posted this graphic on their Twitter feed:

Texas' prison population was 37,621 in 1985 (source), and today is around 150K, so it's not just the prison budget but the inmate population which grew. That 850 percent budget increase paid to house  roughly 300 percent more inmates compared to the '80s.

That prison spending exploded and inmate populations quadrupled over this period is significant; that the growth rate outpaced education spending so severely, perhaps less so. So much more money is spent on education that the rate of increase is lower, even though the dollar amount of the increase may be greater.

To me, the more interesting comparison is how much prison spending grew compared to the combined effects of inflation and population. For example, TDCJ's budget grew by a whopping $458.4 million in its last biennial budget, increasing to an all-funds total of $6.7 billion per biennium.

Grits calculated a few years ago that TDCJ's spending grew 274% more than inflation and population growth combined between 1982 and 2012. Some conservative budget activists have called for a constitutional restriction on spending to limit increases to the biennial inflation/population adjustment. It's nearly impossible to imagine what TDCJ would look like today if it had kept to those spending restrictions except to say this: It'd be a helluva lot smaller.

Saturday, July 16, 2016

"We are programmed to receive": Entry to Texas sex-offender registry a one-way gate

To read Eric Dexheimer's latest Austin Statesman story, Texas' sex-offender registry is a lot like the Hotel California: You can check out any time you like, but you can never leave.

Grits thinks of Dexheimer as a reporter's reporter. He just keeps churning out good stuff over at the  Statesman's investigative division on important topics at which nobody else is looking closely. Forgiving the headline writer's mixed metaphor, for which Dexheimer cannot be blamed, his latest contribution, "Program to corral ballooning sex offender registry failing" (July 14), focuses on the state's failure to cull the sex-offender registry of low-risk people. Doing so lets them focus supervision resources on more dangerous offenders and provides incentives for rehabilitation to folks being supervised. Despite those incentives, though:
According to the Texas Department of Public Safety, more than 90 percent of the state’s registered sex offenders are not considered to be at high risk of re-offending.

Yet the registry is like a cemetery: Because many offenders are placed on it for a lifetime, or at least decades, it only expands in size. Over the past five years, Texas has added new names to the list at a rate of nearly a dozen every day.

In 2011, Texas began a so-called deregistration process. The intent was to remove those who were unlikely to re-offend from the list and, in so doing, save taxpayers money. By focusing police attention on truly dangerous offenders, it would also improve public safety.

By that measure, however, the program has been a bust. In the 5 1/2 years it has been in existence, only 58 sex offenders have been permitted to deregister from the Texas list — less than one-tenth of 1 percent of the current registry.
He also gave a good account of the resource expended equally supervising high and low-risk offenders:
Maintaining the growing lists is increasingly expensive. In 2006, the Texas Department of Public Safety assigned 10 staffers and spent $343,000 to manage the registry. By last year, it required 21 employees and nearly four times the money.

Local law enforcement agencies, where offenders must periodically check in, bear the bulk of the costs. The Houston Police Department, which monitors more than 5,000 registered sex offenders, employs 14 people — 10 of them officers — who do nothing else.

In an office behind the Austin Police Department’s reception area, officer Adrian Valdovino processes a steady stream of registering offenders. “You still have the same vehicle? Same plates?” he asks one. “Any other vehicle you have access to?” Each appointment takes anywhere from five to 45 minutes.

In recent years, the unit — seven officers and two civilians — moved to a larger office to accommodate the city’s approximately 1,800 registrants who must check in anywhere from monthly to annually. Occasionally, officers also stop by their listed addresses to make sure they really live there.
He even quoted former Texas House Corrections Committee Chairman Ray Allen, one of the original authors of our sex-offender registry statutes (and, conflict alert, one of your correspondent's former campaign clients back in the day), saying he was:
convinced the growing registry was actually threatening public safety.

“When we first started writing sex offender notification bills in 1995 and 1997, we cast the net too wide,” he said. “There was a lot of concern there were a lot of sex offenders out there preying on children. We now have more than 85,000 people on the registry. And the reality is we have probably only four- to five-thousand dangerous sex offenders and a whole lot of other folks who were drunk or stupid or misguided who are very unlikely to commit future sex crimes.”

With a huge registry, “you’re creating a very large legal forest for the 5,000 (high-risk offenders) to hide in,” Allen said. “A list where 90 percent won’t commit another crime is not very useful to the public.”
Eric's not wrong that policymakers zeal for fixing the situation has not matched the magnitude of the problem:
Despite the high costs and marginal returns, there has been little appetite from politicians or even criminal justice reformers to fix the system. In recent years, politically conservative advocacy organizations such as the Texas Public Policy Foundation’s Center for Effective Justice have successfully pushed states to use evidence-based research to limit costly practices that do little to preserve public safety. But a spokesman for the influential Austin think tank said it had no plans to tackle sex offender registry reform.
OTOH, he failed to mention our friends at Texas Voices, made up primarily of family members of registrants, who have built up a credible presence at the capitol and are increasingly the central group there pushing for reform. They're not a powerhouse like TPPF, but they're excellent messengers for confronting an unforgiving media narrative. And their addition to the conversation has been the brightest ray of hope on a topic which heretofore enjoyed only few and temporary champions. Texas Voices is beginning to get more serious and, in the long haul, I wouldn't bet against them and their indefatigable leader, Mary Sue Molnar.

Friday, July 15, 2016

Brief police accountability roundup

It's been a remarkable week when it comes to the public debate over police accountability in America, and as luck would have it, Grits has spent much of it babysitting. Even so, while I remain preoccupied, here are a few items which deserve readers' attention:

Debating data and racial bias
Since Grits contributing writer Amanda Woog offered her take on the New York Times coverage of  this new study on racial bias in police use of force, let's mention two other significant critiques of that analysis: A Vox reporter who's covered the issue showed that the findings were quite narrow. And Grits was interested to see this sociologist place the research in context of other related findings. That said, as I opined about the study in the comments, "The portion based on the Houston material IMO is most dubious. But it also included important findings related to lower-level use of force that remain undisturbed by either Amanda's critique or the others." MORE: Economist Rajiv Sethi offered a critique of the study's Houston findings. See also an analysis at Chicago magazine, which referred us to this useful 2007 study on the question of whether crime rates among black folks explain their disproportionate prevalence among police stops. (Spoiler: They do not.)

Save police lives by limiting pursuits
On the same day a Bellaire motorcycle officer died in an accident during a pursuit, the Houston PD announced deployment of GPS tracker darts which can be used by a pursuing cruiser during a chase. Houston PD "averages two high-speed chases per day," according to the Chronicle. As long-time Grits readers are aware, despite the terrible events of the last week, most police officer deaths result from traffic accidents, not felonious shootings. In 2009, the Texas Senate Criminal Justice Committee issued a report (see interim charge 5, p. 58 of pdf) on the causes of preventable police officer deaths and ways to prevent them. That report pinned the largest risk to police officers' lives on the fact that they spend so much time in cars: "Policing remains a dangerous profession and our delivery method of this public service by automobile is the largest contributor to accidental deaths in Texas and across the nation."

The case for (limited) bipartisanship on police shootings
Some conservatives say their movement can find slices of common ground with Black Lives Matter:
What a difference a day makes
According to The Guardian, which has been counting police shootings in America, more people were killed by police in the United States in the first 24 days in 2015 than in all of England and Wales in the prior 24 years.

From those data, Grits estimates* that England and Wales see their cops shoot about one-quarter of one-percent (0.27%) as many people as their counterparts in America, even though their population is 18% the size of the United States - in fact, around twice the size of Texas, whose police shootings also vastly outnumber theirs.

* Estimate methodology: Multiply 59 times 1.2 to get a one-month average, times 12 to get a one-year estimate, and times 24 to match the Eng/Wales comparison. Then divide that into 55, the number of police shootings in England and Wales, to get the 0.27% figure.

Thursday, July 14, 2016

Don't believe the headlines on the Harvard study purporting to show racial bias does not exist in police shootings

Racial bias in policing has emerged as one of the most contentious issues of our time. The issue has been difficult to study due to gaps in data, but this week a Harvard economist released a report that used statistical analyses to determine whether racial bias plays a role in police decisions on use of force. While news headlines covering the study declared no racial bias exists in officer-involved shootings, what the study really shows is the limitations of data and statistical analyses in getting to the bottom of the issue.

On Monday the New York Times covered the report in its Upshot column with an article, “Bias is Found in Police Use of Force but Not in Shootings.” The New York Times headline overstates the study’s findings, and Matt Drudge, Rush Limbaugh, and Rudy Giuliani, among others, picked up the story to conclude that the Black Lives Matter movement is premised on a bunch of hogwash. But the study is actually much more limited than the Times’s misleading headline, and it’s wrong for the author or media to conclude from its findings that bias does not exist in police shootings in the United States. Upshot yesterday published a Q&A with Dr. Fryer addressing the limitations of his report, and this follow-up included a much more measured description of the study’s conclusions. And today the New York Times Public Editor addressed reader complaints with the original Upshot article.

The main weaknesses in the study revolve around its limited data collection and overly broad interpretation, and its failure to take into account how racial biases impact policing and police reporting. While the author offers a series of disclaimers throughout the report recognizing these limitations, the sweeping conclusions he still draws – and certainly the conclusions media have drawn – seem to ignore those important limitations.

The piece of the study dealing with officer-involved shootings contains two parts. In the first part, the author used officer-involved shooting reports from ten different police departments to ask one question: whether race was a significant factor in “whether or not the officer shoots the suspect before being attacked.” To answer this question, the author studied incidents where an officer shot a suspect after being attacked or having a weapon pulled or attempted to be pulled on the officer, and compared those shootings to shootings where the officer was not attacked or threatened in these ways.

But the author’s data is flawed because it relied entirely on the officer’s own account of whether or not the officer was attacked or threatened, and no attempt was made to independently verify the level of threat as described by the officer. The author admits this weakness: “police departments … may contain police officers who present contextual factors at that time of an incident in a biased manner.” In other words, reports submitted by law enforcement may not be accurate reflections of the actual level of threat. This could occur through deliberate misreporting. It could be poor memory.  But it could also be the result of implicit racial bias, which (as other research has shown) causes individuals to perceive people of color as more threatening than identically positioned white people, which in turn may lead the officer to inaccurately report force-justifying behavior by black individuals. Since I began assembling data on all officer-involved shootings in Texas since 2015, I have seen numerous police accounts that describe the presence of a weapon or other threat, which is later disputed by witness or media accounts. Any quantitative study regarding police shootings needs to start with independently verified data, such as body camera footage.

In the second part of the study, the author used data provided by the Houston Police Department to come up with a dataset that purports to be comprised of incidents where an officer may have used lethal force, but did not. The author then compared that dataset, in which such force was not used, to the Houston dataset where the officer did shoot, to ask whether race was a significant factor in the decision to use potentially lethal force.

But the study does not acknowledge the barriers to extrapolating from this geographically limited data. Although headlines such as “Bias is Found in Police Use of Force but Not in Shootings” (New York Times) or “No Racial Bias in Police Shootings, Study by Harvard Professor shows” (Washington Times) would lead you to believe that its findings apply nationwide, this dataset dealt only with Houston, and indeed, only with the Houston Police Department.

And even just limiting the conclusions to Houston, I'm skeptical of isolating a dataset of incidents in which a shooting could have occurred but did not.  An economist at Columbia University was also skeptical and particularly troubled by the fact that the arrestee pool looked pretty different from the shooting victim pool.  For example, 18% of arrestees were female, but only 4% of shooting victims were female.

Neither part of the officer-involved shooting study takes into account a key stage where racial bias has been found pervasive: in decisions on whether to conduct traffic stops, searches or other discretionary policing. The author recognizes the role racial bias may play in the initial interaction, but this limitation in the study deserves more than the one-sentence disclaimer that appears. Police shootings do not occur in a vacuum, and some of the most shocking killings by police have been the result of this sort of discretionary policing that disparately impacts communities of color. Recall that Eric Garner was being arrested for selling cigarettes, Michael Brown was being ordered to get out of the road, and Philando Castile was pulled over because the officer thought he resembled a robbery suspect with a “wide-set nose.”

An underlying problem I see with the study is the basic assumption in economics that people take into account all available information, probabilities of events, and potential costs and benefits to act consistently in choosing the self-determined best course of action. This “rational actor” assumption does not leave room for implicit biases or other explanations for behavior that are not determined by conscious, rational decision-making. So, the author admits that “the penalties for wrongfully discharging a lethal weapon in any given situation can be life altering, thus, the incentive to misrepresent contextual factors on police reports may be large.” But yet the author attributes his finding that racial differences do not impact the decision to use lethal force to the fact that “officers face discretely higher costs for officer-involved shootings relative to non-lethal uses of force.” By assuming police behavior is the result of known incentives, the author fails to acknowledge how implicit biases affect perceptions in police/civilian interactions. And when an officer is considering whether a person is a threat, the way the officer perceives another person can mean everything.

Tuesday, July 12, 2016

Field Drug Tests, Racial Disparities, Wrongful Convictions, and How Houston Cleaned Up Its Mess

This week, the New York Times Magazine published an article on the exonerations of dozens of people who had pleaded guilty to drug felonies in Harris County, despite the fact that the substances they possessed were not controlled substances. People were wrongly arrested on account of notoriously unreliable drug field tests that HPD (and many departments around the country) used.

According to the article, Las Vegas authorities "reexamined a sampling of cocaine field tests conducted between 2010 and 2013 and found that 33 percent of them were false positives." Drug field tests are so unreliable that "[b]y 1978, the Department of Justice had determined that field tests 'should not be used for evidential purposes,' and the field tests in use today remain inadmissible at trial in nearly every jurisdiction; instead, prosecutors must present a secondary lab test using more reliable methods."

The problem is that people--even innocent people--who are stuck in jail because they are too poor to post bail--so desperately want to get out of jail that they plead guilty quickly, before the secondary lab tests can be completed. The article notes that Harris County public records show that "99.5 percent of drug-possession convictions are the result of a guilty plea," and a majority of those are felonies.

The article points to Hurricane Katrina in 2005 as the point in time when HPD began pushing field tests to make more drug arrests to counter a feared increase in crime by the refugees from Louisiana. The reporters examined the Harris County case files and found "stark" racial disparities: "Blacks made up 59 percent of those wrongfully convicted in a city where they are 24 percent of the population, reflecting a similar racial disparity in drug enforcement nationally."

The injustices came to light due to the diligent work of James Miller, Manager of the Controlled Substances Division of the Houston lab who makes sure all drug evidence is tested, even in cases where defendants have long since pleaded guilty. Credit also goes to Inger Chandler, the chief of the District Attorney's Conviction Integrity Unit, who followed up on a tip about possible wrongful convictions and tracked down all the lab reports indicating "No Controlled Substance" that Miller had been sending the DA's office for years.

The Houston lab got other good publicity, this time about its quality control. A report by the National Forensic Science Commission recently endorsed the use of "blind" testing as an important innovation in quality control in forensic science and recognized the Houston Forensic Science Center (at fn. 18) as one of only two forensic labs in the world that have implemented it. The other lab is in The Netherlands.

After the debacle of the Houston Police Department Crime Laboratory, the City of Houston in 2014 spun off the crime lab, making it a new organization, independent of law enforcement, now called the Houston Forensic Science Center. Today the lab also has no backlogs in major sections like controlled substances, DNA, and firearms, among others, as reported at the July monthly meeting of the lab's Board of Directors.

The Houston lab also announced this week that it is hosting a symposium called “Exonerations and Backlogs” on August 11th at St. Thomas University. Speakers will include Debbie Smith, a rape victim who is now the CEO of H-E-A-R-T, Inc., a non-profit foundation established to aid victims of sexual assault, as well as Anthony Graves, an exoneree who was released from death row after over 15 years and the founder of a non-profit foundation designed to promote fairness in the criminal justice system. CLE credit is pending.

A Conversation with Bob Libal from Grassroots Leadership on Private Prisons and Mass Incarceration

Recently I (Amanda) got to sit down with Bob Libal, Executive Director of Grassroots Leadership, to talk private prisons and mass incarceration.  Private prisons have received some well-deserved scrutiny lately, with Mother Jones having published a 5-chapter investigative report on the private correctional industry, and Orange is the New Black bringing private prisons into popular consciousness by setting the fourth season in a private facility.  The recent season of OITB has been covered a fair amount by media, with analyses published by the New Yorker, the New York Times and the Washington Post, to name a few (spoilers within these links!).

Bob has been working on the issue of the private correctional industry with Grassroots Leadership for the past 13 years and was kind enough to share the knowledge and wisdom he's amassed during that time.  Listen to the conversation using the link below or on iTunes here, and find the interview transcript after the jump.

Monday, July 11, 2016

Parsing the truth about Harris County incarceration rates

A quick update on a Politifact screwup Grits reported on last month: They had ridiculously labeled "false" state Sen. Rodney Ellis' statement that Harris County had one of the highest incarceration rates in the world. Grits responded debunking the piece and it was taken down after a few hours.

They have now re-issued the fact check and declared Ellis' statements "Mostly True," even though they literally dispute nothing he said, and he included the caveats they try to pretend might distinguish it from a fully "true" statement.

According to Politifact's "principles," "When we make a mistake, we correct it and note it on the original item."  In this case, though, the mistaken item was simply deleted, it still hasn't been updated, and they waited nearly a month to correct a screwup that was obvious the moment it was published. (After all, Grits had corrected it within hours.) I don't know how many MSM outlets ran the original item, but it shouldn't have taken a month to inform them and their readers Politifact messed up.

As I wrote when the item was first published, "Grits can't stand Politifact. As I've often said, the only labels they apply which have any validity are "True" or "Pants on Fire." Anything in between is a judgment call that they generally get wrong, usually thanks to a level of pedantry that contributes scarce little to real-world discussions." That observation applies here in spades. Their "false" assessment was wrong and the "mostly" before the word true in the new one is a CYA measure to justify their original error, not an assessment of the verity of Sen. Ellis' comment.

Saturday, July 09, 2016

Dallas police shooting: 'This could change everything,' or not

The murders of five police officers in Dallas and the shooting of seven more, plus two civilians, at a Black Lives Matter protest has received massive media attention, with details still emerging, so I'll limit myself to a few initial observations, in no particular order.

* * *
To begin with the obvious, Grits grieves for the officers, their friends and family, as I do for Alton Sterling and Philando Castile and theirs. It's been a disheartening, tragedy-filled week.

When Grits learned that America's latest mass shooting in Dallas targeted police officers, my first thought was "This could change everything." But with just a short time having passed to gain some perspective, now I fear it may change very little, instead helping set some unfortunate and regrettable dynamics into stone.

* * *

One of the reasons Grits waited until now to comment, and then reservedly: Many initial reports were flat-out wrong and I expect others will turn out to be false (much like the Darren Goforth murder in Houston, which stoked similar passions.) Police at first said there were multiple gunmen; there turned out to be one, just as with most mass shootings. The shooter was a military-trained, Afghan War vet armed with a semiautomatic rifle who'd apparently adopted a strain of black nationalist politics in the months before the event.

Three other people were detained who apparently had nothing to do with the episode, though initial reports made it sound like a coordinated group effort. Another protester had his photo posted as a "person of interest" on Twitter by DPD. Then when he turned himself in, police repeatedly lied to him during the interrogation trying to get him to admit to participating in the shooting. This is a legal tactic but also contributes to false confessions. Luckily, in this case the gentleman stood his ground and did not succumb. No one now believes he was involved.

All this to say, from what we now know, the shooter appears to have acted alone. He doesn't seem to have been part of the Black Lives Matter movement except as a sympathizer, and his actions have been roundly condemned by the movement's leadership. The BLM movement is no more responsible for the shooter's actions than the Dallas officers who were shot had anything to do with Alton Sterling's death.

* * *

Lt. Gov. Dan Patrick came out with ridiculous comments calling the protesters "hypocrites" for fleeing the scene when the shots rang out, expecting police to protect them. Never mind that police were ORDERING people to leave the scene. What foolishness! BLM isn't saying police shouldn't exist, of course; they're demanding equal protection under the law.

Also, painting protesters as cowards hardly jibes with other reports. One thinks of this image from the chaotic scene, where protesters gathered with a mother around a baby carriage as a human shield to rush the infant to safety.


By contrast, when an angry constituent fired off a gun outside the capitol in 2010, then-Sen. Patrick pushed for metal detectors to be installed at the entrances, creating long lines during the height of session and diminishing the "little d" democratic feel and function at the capitol. So it's not like he's one to run toward the gunshots!

Grits now thinks the Dallas tragedy will mostly solidify and entrench partisans' positions on police accountability matters instead of helping bridge the divide. Patrick's loathsome response and similar outbursts elsewhere tell me the knee-jerk impulse by reactionaries to police accountability protests will be to double down.

Meanwhile there's little evidence the Dallas police shootings will deter the Black Lives Matter movement from protesting and pushing for change. Indeed, from all I've seen, Grits expects the Alton Sterling and Philando Castile shootings to escalate BLM efforts; people are still mad. Plus, there are already long-term media projects in the works which will focus even more attention on the issue, as well as more and more celebrities speaking out, which can drive daily news. Inevitably, shootings by police will continue, some will be problematic, a subset of those will be caught on video, and each of them will add to the drumbeat. Over time, expanded use of body cameras around the country plus the ubiquity of private cell phones mean more video will become available from unjustified shootings, spurring renewed calls for accountability. If that analysis is right, tensions will rise from here before they diminish.

* * * 

Some days, it feels like all of this country's culture-war feuds are conflating around the issue of mass shootings. After the Orlando shootings, Lt. Gov. Patrick had to delete a Tweet which opined that "A man reaps what he sows," claiming it was pre-scheduled and unrelated to the murder of 50 gay club-goers. (He never did explain precisely WHO he meant would reap what they sowed, if not gay people.) But the truth is, Patrick wasn't the only arch-conservative in the strange position of wanting to preserve an anti-gay persona while condemning Muslim terrorism, however callous and contradictory such a stance may seem in the wake of a grievous tragedy.

Similarly, one of the young men killed this week was a concealed carry permit holder who was shot after he told the officer he had a legal firearm and reached for his ID. But it's not the NRA holding rallies across the country in response to his death, but Black Lives Matter! Then a sniper opens up in Dallas, spurring renewed calls for background checks and purchase delays, and now gun-rights advocates find themselves defending the circumstances that empowered a black nationalist, anti-police mass murderer to obtain a sniper rifle. To say politics makes strange bedfellows is an understatement.

Mass shootings tend to merge culture war issues because any time somebody hates a group of people, one way to express it is to take an assault rifle and kill as many of them as possible. And since hatred can run in nearly any direction and motivate people from a variety of ideologies, mass shootings can be motivated by any and all of the social pathologies one can imagine. That's an odd and interesting side effect of this ignominious trend.

* * *

The use of an explosive-laden robot to kill the shooter, who was holed up in a parking garage, appears to have been the first such use of a killer robot by the government on US soil. While this violates Isaac Asimov's three laws of robotics, experts don't seem to think it violates US law or any constitutional principles.

This isn't a lot different from sending an armed drone in to kill the guy. One wonders, had they planned and trained for this or was it decided on the fly? Will this become more common in standoff situations going forward, or was it a one-off? From a normative standpoint, are there problems with police using robots designed for disarming bombs to deliver them? Grits is drawing no conclusion here, but I'm not the only one with questions.

* * *

Grits' pessimism that dynamics will soon change doesn't mean there haven't been important voices trying to lead a divided public in the right direction, including Dallas Mayor Mike Rawlings, who offered these words of wisdom in the tragedy's aftermath:
“The question is: Can we, as citizens, speak against the actions of a relatively few officers who blemish the reputation of their high-calling and at the same time, support and defend the 99% of officers who do their job professionally, honestly and bravely?” he said. “I think we can and I think we must.”
He's right. But a major lesson from this episode is that a single fool with a penchant for action can undermine thousands of voices raised up calling for change. Messages of unity gel slowly, while messages of division seem to coalesce in an instant.

That said, Grits doesn't share the Marshall Project's pessimism that news from Dallas spells doom for criminal-justice reform writ large. In the long run, conversations which may eventually generate a new vision for policing - one that is safer for both officers and the public - are occurring largely beyond the media maelstrom. In small rooms at the state and local level, activists, police officers, and local politicians are debating specific reforms and finding a path to enact some of them. (BLM's Campaign Zero is tracking state law reforms here.) Progress is slow, we haven't seen much significant change yet, and the process is not for the attention-span challenged. But what's the alternative?

I'm not saying it's impossible to rein in needless police violence; it most certainly is possible, and we must. It just feels like we're on the front end of that debate, not anywhere close to its ultimate resolution.

Thursday, July 07, 2016

Plea bargains sans trials, arsenic and hot prisons, and other stories

On another hot, busy day, here are a few items that merit Grits readers' attention:

Denying jobs for minor offenses
DPS is denying job licenses to applicants for quite-minor offenses, reported Eric Dexheimer (July 3) at the Austin Statesman. He provides several anecdotes suggesting that that "state regulators can zealously apply a law in apparent defiance of common sense."

Prosecutor misconduct alleged in capital case
This headline to a July 4 Houston Chronicle story effectively summed up some remarkable allegations which surfaced this week in Houston: "Prosecutors accused of hiding evidence, inventing testimony in death penalty case: Witnesses say prosecutors coerced them."

Late police officer's chase negligence partly to blame for her death
In an intoxication manslaughter case out of Montgomery County - in which a Patton Village police officer died while chasing a DWI suspect, in an accident that also killed an 11-year old child - DPS investigators determined that the late officer was partly at fault because he "disregarded the red light" and "failed to slow" as he entered an intersection. It's worth mentioning that, last year, we learned high-speed chases are much deadlier than was previously thought. Grits wishes these deaths were tracked as meticulously as the government tracks deaths in custody, and now police shootings.

Arsenic and hot prisons
The combination of heat litigation and the need for arsenic remediation make the Wallace Pack unit 2016's poster child for the ongoing fight over excessive heat in un-airconditioned prisons. See also recent story by Brandi Grissom. As Mother Jones pointed out recently, it's incredibly hard to sue prisons. So the fact the Pack unit litigation has gotten this far means they've overcome some major procedural and evidentiary hurdles. That implies the problems have reached fairly extreme proportions.

Plea bargains sans trials?   
On my short-term to-read list: A new law review article by Penn law prof Stephanos Bibas titled, "Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops."  The premise: American law has largely abandoned "the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes." So, the plea bargaining system must be designed to stand on its own and re-institute some of the protections lost by eliminating trials for most defendants. From the abstract:
Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants’ lack of information and understanding, laymen’s lack of voice, and the public’s lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just."

Wednesday, July 06, 2016

Raise-the-age bill solves practical problem for Sheriffs

And here we see why the Sheriffs Association of Texas last session supported the Raise-the-Age legislation to treat 17-year old defendants as juveniles, like the feds and most of the rest of the country, instead of adults. According to the Houston Chronicle (July 1), "Stuck in limbo: Feds say jails need separate housing for youngest inmates":
The Harris County Sheriff's Office has run afoul of a federal law aimed at reducing sexual assaults in jails, leaving 17-year-old inmates with virtually no place to go while awaiting trial in adult court.

The county's jail doesn't have room in its overcrowded facility to carve out a separate space for inmates under 18, who must be housed separately from older inmates under the Prison Rape Elimination Act.

Efforts to transfer the youthful offenders to other counties have fallen through, officials said.
"We're challenged with the space we have now," Harris County Sheriff Ron Hickman acknowledged in a recent interview.

Jails are facing similar problems across Texas and in six other states, where 17-year-olds are considered adults in the criminal justice system. Federal law and the remaining states consider 18 to be the age of adulthood.

And while it's a logistical challenge for Texas jails, experts say it has serious, real-world consequences for youthful offenders.

"Seventeen-year-olds are really at risk in adult facilities; it's not the right place for them," said Michele Deitch, an expert on Texas jail issues and lecturer at the University of Texas at Austin.

"They're at risk of physical sexual assault, mental health issues, suicide - much higher rates of all of those things in adult facilities," she said.
Shifting 17-year olds to the juvenile system would not only relieve county jail classification conundrums, it would reduce adult incarceration levels, shifting thousands of cases out of the adult system. Moreover, the youth would be treated in a juvenile system that's less reliant on incarceration and with more access to treatment and rehabilitative resources than adult prisons.

If raise-the-age happens next year, it will be because the Lege acquiesces to pragmatic concerns like those expressed by the Sheriffs Association, which usually opposes decarceration reforms. But that happy turn of events doesn't change the fact that, from a normative perspective, it's also the right thing to do. It's always a pleasant surprise when those things align.

Alcala-Sotomayor parallels, divergence

Adam Liptak in the New York Times on Monday highlighted Justice Sonia Sotomayor's notable recent dissents in US Supreme Court cases regarding prosecutorial overreach and abrogation of individual rights by the criminal-justice system. He's right that she's been the best civil liberties champion on SCOTUS, so it's good to see that record illuminated and broadcast more widely beyond the narrow audience of people who read Supreme Court opinions.

For Grits, who falls in the even narrower audience of people who read Texas Court of Criminal Appeals opinions, it's hard not to read the story and see parallels to Texas' own Judge Elsa Alcala, whom Grits recently compared to a "black-robed, Latina John the Baptist" calling out like a lone voice in the wilderness decrying inequities in the appeals process. Both women came from relatively underprivileged backgrounds: Sotomayor was raised by a single mother, while Alacala, one of five children, lost both parents at age 14. If you squint, they even look a bit alike:

Top: Sonia Sotomayor; Bottom: Elsa Alcala
Grits lately has praised Judge Alcala's calls for greater accountability for ineffective defense counsel, as well as her demand that the court recognize meaningful recourse via habeas corpus for indigent defendants whose lawyers severely under-performed. But I could have also mentioned the case for which she received much more press attention - a recent dissent questioning the wisdom of the death penalty, as written up by the Austin Statesman, Fusion, and US News and World Report. Among the money quotes:
  • “In my view, the Texas scheme has some serious deficiencies that have, in the past, caused me great concern about this form of punishment as it exists in Texas today.” 
  • “[T]he time has come for this Court to reconsider whether the death penalty remains a constitutionally acceptable form of punishment under the current Texas scheme.”
  • "Given both state and federal case law and the history of racial discrimination in this country, I have no doubt that race has been an improper consideration in particular death-penalty cases, and it is therefore proper to permit (Murphy) the opportunity to present evidence at a hearing about the specifics in his case." 
Judge Alcala speaks softly but carries a big stick. She's one of the less prolific opinion writers on the court - ranked fifth in the total number of opinions written in 2015, according to the Office of Court Administration (see bottom of p. 4 of this report). But she wrote the third most dissents. She authored 37 opinions in 2015, including six dissents. By contrast, Presiding Judge Sharon Keller was the court's most prolific writer, with 69 opinions, including 14 dissents.* Here are the total dissents authored by each Texas CCA member in FY 2015:

The Dissenters (TX CCA)

Meyers: 19
Keller: 14
Alcala: 6
Johnson: 5
Keasler: 2
Yeary: 2**
Newell: 2**
Hervey: 0
Richardson: 0**

However, Meyers' and Keller's recent dissents haven't been as memorable or important as, say, Judge Alcala's January concurrence from Ex Parte Robbins in which she called out her colleagues by name for gaming the process to undermine the state's junk science writ. Her and Keller's opinions have defined the terms of debate on major issues facing the court to a remarkable extent. Boosting the entertainment value significantly, they're each prone to disagree on the issues the other is most passionate about.

Judge Alcala loses an important ally on the court this year with Judge Cheryl Johnson retiring. They've frequently tag-teamed in opposition to Keller and Co.. With Johnson gone, Alacala faces a particularly hostile environment, confronting long-time judges used to ruling the roost who at times seem resentful at her impertinence for, I guess, expressing an opinion.

Along with Judges Keller and Hervey, Alcala's term expires in 2018. Between now and then, however, the court will undergo a major transition, with Mary Lou Keel and political unknown Scott Walker joining the court in January. Grits fears one or both will provide an additional vote for the government-always-wins faction, which presently includes Keller, Hervey, Keasler, and Yeary. Those four votes are reliably for the state almost no matter what the circumstance. So on any given issue, they only need to pick off one vote for that faction (and thus the government) to prevail.

That dynamic shifts topic by topic. Judge Yeary, a devout practicing Catholic, has been known to divert from the fold on death penalty matters. And Presiding Judge Keller seems to have a much deeper understanding of First Amendment law than anyone else on the court, leading to some interesting pro-defense opinions when it came to the constitutionality of offenses like "online solicitation of a minor," etc.. So these are general observations, not a hard and fast rule.

But on most days, in most cases, that four-vote faction will hold. Right now, that's sometimes insufficient for them to prevail, as evidenced by the volume of Judge Keller's dissents. (Rookie Judge David Newell frequently finds himself the swing vote in a number of recent controversies.) If either Keel or Walker joins that reflexively pro-government judicial clique, the state will just win every time.

In the event this faction on the court does just begin to win everything, with no hope for Bill-of-Rights respecting conservatives to influence the process, one wonders: a) will Alcala want to stay on a court which has shifted so far toward a statist mentality? And b) if she did, would the same GOP which chose Donald Trump continue to truck with her? The times they are a-changin' in GOPprimarylandia.

Which brings us to the differences between Elsa Alcala and Sonia Sotomayor, two Latina judges from opposite ends of the political spectrum who both have passionately criticized unfairness and inequity in the justice system. Alcala is a Rick-Perry appointee with a conservative record who has since been elected as a Republican to Texas' high criminal court. But she resides in a political party in which large swaths do not particularly care, for example, about flaws she's observing up close in the administration of the death penalty. And her concerns about habeas corpus writs from poor people with ineffective trial counsel have so far mostly only penetrated among the most attentive appellate lawyers. Such important minutiae lie far beyond the public ken. Indeed, for the most part the public is unaware the Court of Criminal Appeals even exists, much less do they understand the particulars of what it does. By contrast, Sotomayor's SCOTUS work gets a lot more attention and public credit.

Justice Sotomayor is a member of SCOTUS for life, if she wants it. And depending on what happens in November, she may even find new allies on these issues.*** Judge Alcala, by contrast, must face both re-election and the prospect that the court will shift even further against her. Grits is confident Sotomayor will be on SCOTUS for many years, barring accidents or poor health. But Judge Alcala's good work may be a more short-lived blessing. Small-government advocates and civil libertarians should appreciate her while we have her, because you'll miss her once she's gone.

* Keller and Yeary each also had eight concurring/dissenting opinions; no other judge had more than one.
** Yeary, Newell and Richardson were only on the court for eight months of FY 2015, which ended 8/31/15.
*** As long as they don't re-nominate Merrick Garland.

Monday, July 04, 2016

Independence Day open thread

Happy Independence Day, gentle readers. Use the comments as an open thread to celebrate freedom and liberty by remembering those without them.

Otherwise, a few housekeeping odds and ends worth mentioning:

Thanks to Michele Deitch for posting a couple of documents last week that her students produced after a symposium in Houston on "Police, Jails and Vulnerable People." Let's link to them again just to make sure folks saw them:
And if you didn't have time during the week to listen to TPPF's Derek Cohen's discussion of sentencing enhancements, go here to revisit it. Thanks Derek, for taking time to chat.

This Grits item comparing Judge Elsa Alcala to a "black-robed, Latina John the Baptist" got picked up by the Marshall Project's daily email and got a lot of attention. Given how few people follow the Court of Criminal Appeals, I was surprised so many folks reached out to me about that topic. Read it if you missed it.

Finally, the Texas Tribune's crowdfunding campaign to support investigative journalism on police shootings is quite a bit shy of its goal. I hope they make it. If you haven't, give them some love.

Happy Independence Day!

Sunday, July 03, 2016

TDCJ must reduce incarceration levels to cut a quarter-billion dollars

Texas state legislative leadership this week told state agencies to submit a baseline budget four percent lower than the last biennium, with certain exceptions. The Texas Department of Criminal Justice (TDCJ) and prisoner costs were not among those exceptions.

In the last legislative session, TDCJ's budget "increased by $458.4 million for the 2016–17 biennium," or about 7.4 percent, to pay for employee raises and prisoner healthcare.

By contrast, a 4 percent cut in General Revenue funds would exceed a quarter of a billion dollars!* That goal can only be reached by reducing incarceration levels and closing more prisons. The employee raises cannot be reasonably rescinded, the amount given for prisoner health care fell short of the stated need, and there aren't other obvious ways to cut that the Lege didn't already avail themselves of in 2011, the last time Texas went through a revenue slump.

*~ $264 million, which is 4 percent of the $6.6 billion in General Revenue spent on TDCJ's 2016-2017 biennial budget.

Friday, July 01, 2016

Roundup: Policing the police

Here are a number of police accountability topics which merit Grits readers' attention:

Austin had one of the worst police union contracts in the nation when it comes to protecting bad cops who engage in misconduct, according to a new analysis from Campaign Zero, a spinoff project of the national Black Lives Matter movement. See Campaign Zero's comprehensive policy agenda.

Body cameras have been touted as a cutting-edge police accountability strategy, and Grits broadly supports their implementation. However the Daily Dot outlined the main concerns regarding this development - particularly hidden biases generated from the cameras' unique perspective - which have not been fully taken into account. See Debbie Russell's critique of Austin's new contract for body cameras, in which the city overpaid for equipment and failed to sufficiently respect the need for transparency when it comes to securing the public trust. Texas' law needs to be upgraded to allow for greater openness if the public is going to perceive cameras as a real reform effort.

Meanwhile, PBS Frontline had an excellent documentary this week on efforts to instill police accountability in Newark which has implications for every jurisdiction confronting these issues, particularly its focus on the challenge of changing internal police culture and officer attitudes. Really good stuff. 

This item at The Atlantic suggested that, "The criminal justice system just doesn’t possess the will, tools, or objectivity to consistently deliver justice for victims of police violence. ... But the idea of restorative justice provides a sorely-needed alternative."

Finally, Fusion has launched a series titled Arresting America, analyzing arrest records from 16,000 jurisdictions nationwide. Among their findings: Arrests for violent crimes such as murder, manslaughter, rape, and robbery made up only one percent of the total (~85,000 out of 8.5 million total arrests)