Interview: ProPublica reporter Pam Colloff on the Joe Bryan case, blood-spatter evidence, resistance to change in forensic science fields, the best #cjreform podcasts, and the effects of a changing media environment on crime coverage

At a dramatic hearing yesterday on his habeas corpus writ in Comanche, a small town near Brownwood, all of the evidence accusing former high-school principal Joe Bryan fell apart, including blood-spatter evidence which even the original analyst would no long stand behind. Ace ProPublica reporter Pam Colloff gave the details in a followup to her massive, long-form story on the case, which was published in the New York Times Magazine back in May.

As it turns out, Joe Bryan was almost certainly innocent and has been unjustly incarcerated for more than 32 years. Most of the blood spatter on the flashlight turned out not to be blood, and what blood was present could be linked neither to Bryan nor his wife, Mickey, the victim. Underwear that the prosecution told a jury contained semen did not. By the time the hearing was over, virtually nothing was left of the prosecution's case, reported Colloff.

With this news, and the renewed attention on Colloff's blood-spatter reporting, Grits thought it would be a good time to stop procrastinating and put out the full interview I did with Colloff over the summer. An excerpt was included in our August podcast, but here's our full conversation. We talked about the Bryan case, blood-spatter analysis (including the training course she took to conduct it), the state of forensics generally, her favorite criminal-justice podcasts, and changes in the media landscape affecting criminal-justice coverage. The whole thing runs about 40 minutes, you can listen to it here:

I've ordered a transcript and will post it below when it comes back.

Roundup: Forensic follies featuring DNA mixtures, blood spatter, and DWIs, plus how the Drug War props up mass incarceration in Texas, and other stories

A few odds and ends while your correspondent is focused elsewhere:

Flood of coverage, emotion, anger surrounding Botham Jean killing

The killing of Botham Jean by Dallas police officer Amber Guyger is the most politically significant episode of alleged police misconduct resulting in a death in Texas since the Sandra Bland tragedy. Your correspondent began a longer commentary on the topic over the weekend, but the stories being put out by law enforcement evolved so quickly that, with no first-hand knowledge, Grits decided it prudent to wait a moment, take a breath, and watch things play out. Others have said what needs to be said in the context of what is known, and too much remains unknown to say much more. Go here to review the voluminous news coverage surrounding the case.

Blood-spatter bollocks blown open

The blood-spatter case Pro Publica's Pam Colloff wrote about last spring was broken wide open in a Texas habeas hearing yesterday, with all of the probative evidence systematically debunked. See her  latest report, and check out Grits' interview with Colloff about the case on the latest Reasonably Suspicious podcast.

Brady and forensics

The mishandling of a DWI blood sample led the 14th Court of Appeals to reverse a conviction based on Brady violations (failure to report exculpatory evidence to the defense) by what was then the Houston PD crime lab, and is now the independent Houston Forensic Science Center, the Houston Chronicle reported. See a pithy summary of the case from exoneration expert Brandon Garrett.

Austin DNA SNAFU may have caused false convictions

Some of the DNA mixture cases from the Austin crime lab being reviewed by outside experts "came back with results that could be beneficial to the defendants’ cases, such as a previous DNA result not excluding a person that came back inconclusive," reported the Austin Statesman. The layman's interpretation: Innocent people may have been convicted based on flawed DNA mixture forensics. Stay tuned.

School-'em-up

Exoneree Anthony Graves is teaching ex-offenders how to advocate for justice reform in a class at Texas Southern University.

A narrow window of journalism on Austin police contract controversy

Finally, an account of the controversy over police oversight and Austin's union contract that goes beyond bashing advocates for their impertinence at winning after the local media sided with their opponents. See the story from Nina Hernandez at the Austin Chronicle. From Grits' vantage point, this is essentially the first fair-minded assessment we've seen after the stream of pro-police-union apologia that's passed for MSM coverage in this town for the past several years. Indeed, more journalists are changing their minds about how to cover police accountability than just in Austin. The National Review's David French recently penned a column titled, "Why I changed the way I write about police shootings."

You're a liar! No, you're a liar!

The Aransas County District Attorney stopped taking cases from the Rockport Police Department more than a year ago because she thinks their officers have been dishonest and intentionally failed to comply with "Brady" disclosure requirements, the Texas Observer reported. Rockport police have responded with counter-allegations, and it's all a big mess.

Drug war propping up TX mass incarceration

In this Twitter thread, your correspondent demonstrated using Office of Court Administration data how "the drug war is propping up mass incarceration in Texas," keeping felony conviction numbers high even though crime is way down.

High complaint numbers valid predictor of bad cops

A new study found that civilian complaints against police are a valid predictor of police misconduct. And complaints were equally predictive whether or not people are required to sign a sworn affidavit. Ninety percent of officers have few or no complaints against them, but those with a significant complaint history or more likely to be among those who end up costing their department through civil suits and bad publicity.

Even misdemeanors impede job search

Study: Misdemeanor convictions significantly harm employment prospects.

#cjreform implications of Texas Senate races

How might contested state-senate races in the November elections affect criminal-justice reform prospects in Texas?

Prospects for senate turnover
Alex Samuels at the Texas Tribune today reported news which has been widely understood in political circles for months - that as many as three Republican state senate districts could flip red-to-blue in a high-turnout, Democratic-wave election. Those seats are presently held by Konni Burton, Joan Huffman, and Don Huffines.

Samuels focused on the most obvious potential change: Because a supermajority is required to bring legislation to the floor, if they won those races, Democrats would suddenly have the power to block Republican bills when they vote as a bloc.

For criminal-justice reformers, though, the subject is more complex. For us, the problem isn't so much killing bad bills as how to pass good ones.

An imperiled champion
Sen. Konni Burton has been the most enthusiastic Republican senator when it comes to justice reform. She's been one of the senate's best Fourth Amendment champions, but her crowning #cjreform achievement IMO came with a 2015 amendment that adjusted Texas' property-theft thresholds upward, reducing the number of people picking up a felony charge. The result was to steadily depopulate Texas' "state jails," reorienting the system from incarceration to victim restitution at the local level and causing probation rolls to plummet.

If Burton were to exit the senate, it would make it more difficult for reformers to amend House bills in the eastern side of the capitol and to whip Republican support in the senate. She's not a policy expert, like Senators Whitmire or Huffman, but when Burton embraces an issue, she does so energetically, with zeal, and she doesn't quit or back down in the face of opposition. Those qualities matter, and will be difficult to replicate.

Notably, when your correspondent heard her speak the other night at a Northeast Tarrant County Tea Party meeting, Burton suggested that her criminal-justice-reform advocacy was benefiting her in her state senate race because, in a 50/50 district, she had to appeal to swing voters and seek Democratic crossover votes. That meant she'd found herself frequently campaigning among minority neighborhoods and community groups in her district, she said, and she told the Tea Party folks that her record on #cjreform had proven to be an asset on the campaign trail when trying to reach those voters.

Gatekeeper could lose her post
By contrast, Sen. Joan Huffman has more often than not been an obstacle to criminal-justice reform in the upper chamber, with two caveats: 1) She has sometimes acquiesced in compromised versions of reform that still represented significant gains, and 2) the longer she's been in office, the more educated she's become about systemic problems, as evidenced by her vocal advocacy for mental-health funding. In the last couple of sessions, she has seemed more open to at least discussing problems and listening to proposed solutions.

Still, if Huffman were vanquished, the senate would lose its long-time tuff-on-crime gatekeeper. And there aren't other senators with much background on criminal-justice topics to make it obvious who might assume that role on the R side. Criminal Justice Committee Chairman John Whitmire, a Democrat, often dominates justice debates in the Senate because he's so much more knowledgeable on the topic than his colleagues. Sen. Huffman, a former prosecutor and judge who frequently carries law-enforcement messages and bills, has been his Republican counterweight.

If she was somehow dislodged from office, it would be a big change. That said, when she ran against the same Democratic opponent in 2014, Huffman beat her like she was owed money, so take Samuel's assessment of vulnerability with a grain of salt.

Senate remains a mixed bag
Sen. Huffines has been a relatively minor player on justice topics, promoting abolition of the Driver Responsibility surcharge and red-light cameras, but shying away from other #cjreform subjects.

So it's a mixed bag: Huffman's departure would shake things up, but other potential GOP gatekeepers aren't a big improvement, and losing Konni Burton would be damaging.

A champion arises?
The one bright spot in this otherwise hazy outlook in the senate is that the corrupt Carlos Uresti - who on #cjreform issues would have needed to become more active to qualify as "furniture" - will be gone, and appears likely to be replaced by former Congressman and 22-year Texas House member Pete Gallego.

Gallego, who has worked as both a prosecutor and a defense attorney, chaired the Criminal Jurisprudence Committee when I was Policy Director at the Innocence Project of Texas and was an important ally on many of the reforms passed while I was there. The bill that stands out most to me was Texas' junk-science writ, which he and Sen. John Whitmire pushed through successfully in 2013 before Gallego left to run for Congress. He was a mensch throughout the process, and as knowledgeable and thoughtful as any legislator I've worked with. He'll be an excellent addition to the senate from a #cjreform perspective, and a huge upgrade from his predecessor.

The potential for volcanic eruption
None of these would amount to a sea change in the Texas Senate, even if all three of the vulnerable Republicans end up losing. But it would be a truly volcanic transformation if Dan Patrick lost the Lieutenant Governor's seat, and a recent poll showed him just a couple of points ahead of his Democratic opponent, Mike Collier. That would be a much more titanic shake-up, on many levels beyond just criminal justice, and would likely clear the way for more aggressive #cjreform legislation. If the blue wave goes that deep, one might expect Sharon Keller to lose her seat on the Court of Criminal Appeals as well, and for Attorney General Ken Paxton to at least be getting nervous on election night.

That would be unexpected, and I certainly wouldn't bet on it. (If Grits were in Vegas setting the betting line, I'd say Ted Cruz by four points, Dan Patrick by six.) But a lot about American politics is unexpected these days, and stranger things have happened.

Prison educator: TDCJ inmates' reading and math on a 5th grade level

The average Texas prison inmate's reading and math skills are at a fifth grade level, the superintendent of TDCJ's Windham School District told the Senate Criminal Justice Committee this morning.

Large numbers of the nearly 70,000 inmates leaving Texas prisons every year, he told the committee, do so without a GED. The agency grants about 5,000 GEDs per year.

Chairman John Whitmire briefly raised the question of computer proficiency among inmates leaving the system, and I found myself wishing the superintendent had discussed it more. The ability to use a computer - particularly word processing and spreadsheet software, but even basic internet search functions - can be essential these days, even for retail or service work.

For that matter, in 2018, searching for a job most frequently means searching on the internet. That's harder to do if, first, one has to learn how to ACCESS the internet.

Those skills should be taught in prisons.

Inmate outsourcing caused by judges resisting bail reform

As mentioned earlier, the Harris County Jail, with more than 10,000 inmates, is larger than the prison systems in 19 states. But not all of those people are housed in Harris County! The Sheriff is mulling spending more per inmate to house people in Fort Bend County instead of in Louisiana.

To be clear: The entire cost of contracts to house inmates out of county may be attributed to failures in pretrial detention policy. Harris County judges pressed the county to spend millions of dollars fighting bail reform rather than issue personal bonds to low-risk defendants, a point attorney Pat McCann made at the end of the story.

Notably, the Texas Commission on Jail Standards recent found the Harris County Jail out of compliance after two suicides in a month's time.

A flaw in Travis County's plan to ↓ DWLI

Chris Harris of Grassroots Leadership reported yesterday on Twitter that Travis County will institute a new program to reduce arrests for driving with an invalid license. Here's what he says that will mean for drivers with revoked licenses:

• If cited (not arrested) by police, you will be charged with a Class C instead of B 
• If you plead guilty and get your license and insurance renewed w/in 6 months the charge is dismissed

Earlier this summer, the Austin Statesman reported that, "The number of Class B misdemeanors filed last year in Travis County — 3,425 — was three times higher than the combined total in Bexar, Dallas and Tarrant counties and exceeded the number of filings in the more populous Harris County, according to data produced by the Office of Court Administration."

That article blamed Austin PD for filing the higher charge, but prosecutors have complete discretion over what charges to bring in these cases: Those were decisions by the County Attorney's office. Now that they've made a different one, clearly they expect APD to just comply.

Which brings us to the key problem: even now it's unclear to your correspondent that County Attorney David Escamilla has proposed a workable plan. Most people with suspended licenses in Texas had them revoked for nonpayment of driver-responsibility surcharges. So, how may we expect them to get their license renewed within six months?

Can't pay means can't pay; one can't squeeze blood from a stone.

This will be better. Charging people with Class Cs instead of Class Bs limits the bad outcomes. But it will still result in punishing people for being too poor to pay their Driver Responsibility surcharges, and in the end, punishment won't fix that problem.

A reporter's carceral recollections

Keri Blakinger's best known as one of the sharpest and most prolific up-and-coming criminal-justice reporters in the country. But her episodic essays in the Houston Chronicle's Gray Matters column about earlier-in-life stints struggling with drug addiction, homelessness, and prison have been nothing short of excellent. Check out these examples:

• Prison families? I didn't want any part of that
• The 'men' in a women's prison
• In prison, the Superbowl is the best holiday
• Why I ate prison food even after I got out
• Why we wore makeup in prison
• In prison there are no rules
• Why I craved crosswords in prison
• I got out of prison 5 years ago. I still don't own dishes

Tarrant DA told pro-#cjreform Tea Party meeting there's no mass incarceration in Texas

Your correspondent spent yesterday evening at a meeting of the Northeast Tarrant County Tea Party on criminal-justice reform, featuring state Sen. Konni Burton and Rep. Matt Krause as the principle speakers.

The idea that a Tea Party group was focused on #cjreform after Labor Day in an election year really says a lot about the changing terms of debate surrounding crime and punishment in the Lone Star State, so I was pleased and gratified to join them.

Anyway, Tarrant County District Attorney Sharen Wilson was there seeking votes, along with a clutch of other candidates. During the question and answer session, she stood up to make a statement that deserves correction.

After mentioning that her Democratic opponent is running, in part, on a platform of "ending mass incarceration," Wilson declared that, in Texas, mass incarceration is "not a problem" because the state has closed seven prison units (really it's eight) and legislators like Burton and Krause are pro-reform. She also told the crowd that Texas' prison population has declined by 20 percent.

That's simply uninformed. In reality, along with our neighbors, Louisiana and Oklahoma, Texas remains the global epicenter for mass incarceration. The Bayou State has surpassed Texas with the nation's highest incarceration rate, with the Okies coming in second. (We still rank near the top.) But Texas still has by far the largest state-prison system. In fact, Texas even has more state prisoners than California, but with 30 percent less population than the Golden Bear.

Heck, the Harris County Jail is larger than 19 state prison systems! (Source.) The idea that Texas has no mass-incarceration problem borders on ludicrous.

Nor has our prison population declined by 20 percent from its peak. If it had, Texas' prison population would now be lower than California's. Rather, it's declined by about six percent, from a high of about 155k to around 146k today.

It's true we've closed eight prison units, but we started with 112, so there's still a long way to go!

That said, Texas' justice system has definitely shrunk. The proportion of Texans in prison, jail, on probation and on parole - what Grits has called the "subjugation rate" - has plummeted over the last decade from one in 22 people under control of the government to one in 41, putting us just below the national average. That's a 46 percent reduction!

But almost all of that decline came from the sliding number of probationers, with state-prisoner reductions coming in a distant second. Looking solely at those incarcerated, leaving aside community supervision, Texas' incarceration rates remain quite high and, in real numbers, our system is the biggest.

To give credit where it's due, by the way, Sen. Burton is largely responsible for that reduction in the subjugation rate. Her 2015 amendment increasing property-theft thresholds to track inflation began to depopulate the state jails and shed thousands from the probation rolls over just a few years. That resulted in substantially increased freedom across the state, in a fundamental sense. She has been a true and consistent ally of #cjreform efforts at the capitol.

Grits was excited to witness one of the state's largest Tea Party groups so ardently embracing justice reform. Both Burton and Krause seemed genuinely enthusiastic about a "limited government" approach to the justice system, and Krause, in particular, proved effective at burnishing the tenets of conservative ideology in support of the cause. I was also glad so many candidates, including Wilson, attended to seek the group's support at the same time they're discussing #cjreform issues. It helps to set a certain tone among the political class, which I appreciate.

Grits appreciated less the Tarrant County District Attorney pretending Texas has no need to confront mass incarceration. Everyone is entitled to their own opinion, but not their own facts.

TX Judicial Council recommendations on bail reform

Check out the Texas Judicial Council's legislative recommendations related to pretrial detention/bail reform, and the description of the risk assessment instrument they're recommending to legislators in committee hearings.

From the handout: "A recent study showed that defendants who spent three or more days in jail were more likely to lose employment, report serious financial difficulty, experience issues with residential stability and less likely to be able to support dependent children."

And a mere three days of pretrial detention, for many defendants, would be a welcome respite from the reality: "Nearly 20% of felony cases take more than a year to dispose and more than 50% percent of misdemeanors remain pending over six months – meaning individuals held in jail while awaiting trial stay for considerable amounts of time."

With Gov. Abbott having entered the mix over the summer, vowing to name bail-reform legislation after a dead state trooper whose killer he believes shouldn't have been released on bail, one of the shortest distances to passing bail reform would be if a meeting of the minds between Gov. Abbott, himself a former Texas Supreme Court Justice, and current TSC Chief Justice Nathan Hecht could form the basis for consensus among statewide elected officials. So the details of what the Judicial Council proposes on this score are important, and likely form the basis for bail-reform legislation next year.

Some of the things Gov. Abbott wants done regarding preventive detention would require a constitutional amendment, which requires a two-thirds legislative vote in both chambers, as opposed to a simple majority in the House and 3/5 in the Senate, as is required for regular legislation.

With Gov. Abbott's sudden interest, bail reform is shaping up to be a major #cjreform topic during the 86th Texas Legislature. However, even if something like SB 1338 from last session is able to pass this time - and given the motivated fervor and deep pockets of bail-industry opposition, that's not a sure thing - measures that require changing the constitution may still end up being hard-fought votes.

What's the hold up? Waiting for Texas prison data

It's been 375 days since the fiscal year ended and the Texas Department of Criminal Justice still has not issued its annual statistical report for FY 2017.

Last year, the FY 2016 report came out in April.

That is all.

UPDATE: TDCJ told the Houston Chronicle's Keri Blakinger the report may be out as early as next week.

15-second bail hearings in Big D, doing time for non-existent crime, and other stories

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

Possible poo, snitch lies, caused likely wrongful conviction
Ed Ates has now been paroled but not (yet) exonerated, largely thanks to the efforts of the Truth and Justice podcast out of North Texas. Congratulations to all involved! Texas Monthly's Michael Hall has the details, writing that Ates was convicted based on "two lies, one snatch of hearsay, and one piece of human feces on his shoe that, when all was said and done, was never actually proven to be human feces in the first place."

15 seconds for Big D bail hearings
Video of bail hearings in Dallas County show they routinely last around 15 seconds apiece, reported the Texas Observer's Michael Barajas. FWIW, it was video of unrepresented defendants being bullied by magistrates that was the tipping point in the Harris County litigation, so this could become a pivotal aspect of the ongoing litigation in Dallas. See more from the Marshall Project.

More guards framing prisoners for disciplinary cases
Keri Blakinger at the Houston Chronicle has yet another example of Texas Department of Criminal Justice prison guards proactively setting up innocent inmates for disciplinary infractions they didn't earn - in this case, allegedly planting drill bits in an inmate's cell then accusing him of hiding them. Go read her story.

Debating the utility of ankle monitors
Federal judges are pushing back on requirements in the Adam Walsh Act that they assign all child-porn defendants to wear ankle monitors pretrial. See related, recent Grits coverage: Do ankle monitors on parolees make anyone safer?

Don't blame innocence work for decline in murder clearance rates
Jay Wachtel recently posed the argument that the decline in murder clearance rates is the result of greater "caution" by police thanks to advocacy by the innocence movement. Your correspondent thinks that's a load of horse-hockey. In Texas, 1) declines in clearance rates preceded the enactment of any innocence reforms, and 2) none of the reforms passed significantly tied officers' hands. E.g., courts continue to let eyewitness testimony into evidence when officers didn't comply with best practices. That said, it's fascinating that murder rates have declined WHILE clearance rates declined. Police are solving fewer cases but the result is greater crime reduction. To me, that indicates the decline in murders likely has little to do with effective police work and more to do with unrelated societal trends.

Prosecutor merger in Austin a low priority
The Travis County District and County Attorneys want to merge. Grits thinks they both have bigger fish to fry, but the two officials are gung ho about it. Local #cjreform advocates have given the DA and CA a list of reforms they'd like to see before signing off on the merger, focused on Larry-Krasner-style decarceration policies (with a Texas twang). But as of this writing, the prosecutors haven't bitten. E.g., in Nashville, TN, prosecutors stopped taking invalid-license cases, while Travis County prosecutes more of those than any other large Texas county, according to Chris Harris from Grassroots Leadership. I'd rather see County Attorney David Escamilla focused on eliminating those cases from his dockets than pointlessly merging with the DA's office.

Defense lawyers failed to notice client charged with non-existent crime
A state legislator told me once that, of all the professions, lawyers, doctors, and engineers could do irrevocable harm if they do not perform their jobs well. A case in point is this article about a 17-year old man sentenced and incarcerated for a crime (online solicitation of a minor) that the courts had already declared unconstitutional and stripped off the books. He has filed suit against his former attorneys for malpractice.

Artistic portrayals of mass incarceration
On your next visit to downtown Houston, check out an exhibit at the Contemporary Arts Museum focused on mass incarceration dubbed, "Walls Turned Sideways: Artists Confront the Justice System." The exhibition, the Texas Observer informs us, is "on display until January 6, is accompanied by an ambitious, 464-page catalog containing essays by dozens of scholars, artists and activists."

'Click here to kill everybody'
If you want to think deeply about real security as opposed to the security theater that characterizes most political discussions, read Bruce Schneier, from whom I've learned a lot about how to analyze security questions. His new book is titled, "Click Here to Kill Everybody," and it immediately goes on the to-read list. Grits has read Schneier's Secrets and Lies, Liars and Outliers, and downloaded Data and Goliath onto a Kindle but haven't gotten to it, yet. His blog, Schneier on Security, is a longstanding internet gem; read it if you don't.

Long DPS lines making costs of TX driver surcharges more apparent, outweigh revenue to trauma centers

For years, the economics of Texas' Driver Responsibility surcharge - and its role in subsidizing trauma hospitals around the state - have been cited as the principle barrier to its abolition.

But those economics may be changing before our eyes as the state prepares to pony up hundreds of millions of dollars to reduce long lines at Texas Department of Public Safety driver-license centers.

College Station Municipal Judge Ed Spillane was quoted extensively in a TV news story explaining the failings of the Driver Responsibility Program, which regular readers are aware attaches civil penalties on top of criminal fines for certain traffic-related offenses, most frequently driving with an invalid license (DWLI) and failure to maintain insurance coverage. The economic consequences for low-income drivers was well-described by Spillane and a local driver caught up in the surcharge-cycle for the last decade. Check it out.

When it comes to solutions, Spillane rightly declared that legislators "are at a loss" about how to get rid of the program because half of the money raised (after paying the collections contractor) goes to trauma hospitals, with the other half going into the general revenue fund.

However, the costs and unintended consequences of the Driver Responsibility Program are beginning to add up, and as a result, Grits believes the economics of surcharge abolition may be shifting as other costs rise.

Which brings us to Texas DPS, which has lately come under fire for long lines at driver-license centers. There are essentially two major causes of long lines for renewing driver licenses: Understaffing the Customer Service Center call lines, and the policy decision to revoke a half-million driver-licenses per year to punish nonpayment of fines and fees, most of it for unpaid DRP surcharges.

Underfunding the call center means drivers who can't get DPS on the phone will go into the driver-license centers when many of them could have renewed online. And revoking a half-million licenses per year for nonpayment adds an ever-increasing volume of drivers to the lines who frequently a) cannot renew online and b) have more complex cases to resolve.

So far, legislators have only discussed the first problem: Funding the call center. But eventually, they must address underlying causes of long lines or the problem will recur. The Washington Post reported earlier this year that, among states, "Texas, by far, suspends the most driver’s licenses for failure to pay fines," estimating 1.7 million people with revoked licenses, 1.4 million of whom had their licenses revoked over unpaid surcharges.

So what does it cost to address needlessly long lines at license centers? DPS announced it will request an additional $420 million over the next biennium to deal with long lines: $178.6 million for increased staffing at current offices, $190.1 million to open new offices in high-demand areas, and $51.3 million to boost staffing at the call center.

By contrast, the DRP generates less than $150 million per biennium for hospital trauma centers, and a like amount for the general revenue fund, so nearly $300 million total. But an unintended consequence of the DRP is contributing to long lines at the license centers, which is costing much more than that!

This is like robbing Peter to pay Paul, then still having to pay Paul!

There are other unintended consequences, including major economic detriments from having 1.7 million people with revoked licenses. New Jersey has one of the only comparable surcharge programs in the country, and about a decade ago they performed an extensive survey to analyze the economic outcomes from revoking licenses for unpaid surcharges. In a 2010 blog post, Grits summarized the results thusly:

According to that survey, of persons with suspended licenses whose annual income was under $30,000: (1) 64% were unable to maintain their prior employment following a license suspension; (2) only 51% of persons who lost their job following a license suspension were able to find new employment; (3) 66% reported that their license suspension negatively affected their job performance; and (4) 90% of persons whose license was suspended within this income bracket indicated that they were unable to pay costs that were related to their suspended driving privileges. In addition, of those who were able to find a new job following a license suspension-related dismissal, 88% reported a reduction in income.

We may expect similar results, one imagines, among low-income Texas drivers caught in the same predicament.

Viewed broadly, the economic implications are staggering. In addition to money spent so that hundreds of thousands of extra drivers with revoked licenses can wait in line at the license centers to renew them, the state is losing tax money from reduced income and spending among people who owe surcharges. Plus, Texas' economy suffers from reduced demand as an ever growing cohort of adults experiences the above-cited dings to their earning potential.

Tack onto this the costs passed on to counties and municipal governments for enforcement, particularly regarding DWLI, which has become a perennial problem. In Ector County, for example, driving with an invalid license constitutes the second-most common misdemeanor case prosecuted by the County Attorney after marijuana possession. Local municipal judges and Justices of the Peace face the brunt of these increased caseloads from the DRP and must deal face to face with the seemingly endless sea of drivers under its yoke.

Indeed, one could continue nearly ad infinitum with a list of negative, unintended consequences stemming from DRP license-revocations. A 2015 public policy report, which helped convince the California Legislature last year to end license revocations for nonpayment, articulated some of the additional, hidden costs from, "Using license suspensions to collect debt rather than to preserve public safety."

[T]here are millions of Californians who are not a driving safety threat, but who cannot have valid driver’s licenses. According to the American Association of Motor Vehicle Administrators, this type of license suspension is dangerous because it diverts police officer time and attention from public safety priorities. The police, DMV, and courts spend millions arresting, processing, administering, and adjudicating charges for driving on a suspended license. Add in the cost of jailing drivers whose primary fault was failing to pay, and we have a costly debtor’s prison. 

The current policies are counterproductive for employers as well: there is a cost to hiring and re-training a new person for a job being done well by someone else. It is an unnecessary expense to both employers and the state to pay unemployment insurance for an employee who would be retained if the person had a license. 

Additional costs to the state include the fact that many more families have to rely on safety net public benefits because these millions of suspended licenses are a barrier to gainful employment. There are also the secondary impacts of unemployment on the economy and on families living in poverty; children often bear the brunt of the harms of poverty, and some of these costs will not be fully realized for decades.

All of those critiques apply, in spades, to driver-license revocations in Texas. And most of the half-million annual license revocations in Texas stem from unpaid Driver Responsibility surcharges. Of the 3 million drivers who owe surcharges, nearly half (1.4 million) have had their licenses revoked for nonpayment.

This colossal failure of a program increasingly has become not just a cost-driver for DPS license centers but even a drag on the economy, and by extension, state and local government revenue.

Your correspondent remains hopeful that the 86th Legislature marks the moment when Texas stops looking at driver surcharges as a cash cow and begins to think of them as a money pit. Evidence for that view is becoming increasingly hard to ignore.

See prior, related Grits posts:

• Texas DPS acknowledges short-staffed call center in budget request to reduce license-center lines
• Texas DPS getting a bum rap over proposed driver-license center closures
• How the Driver Responsibility Surcharge contributes to long lines at DPS license centers

Willett decries Catch-22 on qualified immunity for police

Newly appointed federal 5th Circuit Court of Appeals Judge Don Willett last week issued a "concurrence dubitante" (meaning he concurred despite skepticism over the legal proposition at hand) concerning qualified immunity for police officers who violate people's constitutional rights, in this case due to an unconstitutional search. (Check out the case here, his concurrence begins on p. 21; see also coverage from Reason.)

Opined Willett: "To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior."

And he sums up a Catch-22 regarding police litigation that's bothered me for years:

many courts grant immunity without first determining whether the challenged behavior violates the Constitution. They avoid scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent. Forgoing a knotty constitutional inquiry makes for easier sledding. 

However, the judge argued, this failure to analyze the constitutionality of police behavior has (unintended?) consequences:

Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose. 

Willett concluded:

Count me with Chief Justice Marshall: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” The current “yes harm, no foul” imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed. It is indeed curious how qualified immunity excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.

That's an excellent, brief summary of one of the biggest problems with qualified immunity. For more, one of the judge's footnotes included references to several items that readers interested in more detail on the topic may want to review:

• Notre Dame Law Review issue (2018) focused on the future of qualified immunity
• William Baude: Is Qualified Immunity Unlawful?
• Joanna Schwartz: How Qualified Immunity Fails
• John Jeffries Jr.: What's Wrong With Qualified Immunity?

Texas #debtorsprison legislation overachieving, even boosted revenue

Texas "debtors prison" legislation last year drew plenty of critics among municipal judges and county officials focused on revenue maximization. Now we know that those criticisms were misplaced and the new law is working even better than anticipated.

At the House Criminal Jurisprudence Committee on Thursday, Office of Court Administration Director David Slayton testified for the first time on the results of "debtors prison" legislation passed by the Texas Legislature in 2017. (You can watch his testimony on the bill here beginning at the 1:29:20 mark.)

When the bill was in play last year, county officials and municipal court judges predicted massive drops in revenue, prompting Rep. Andrew Murr to attach an extra fee counties can charge to indigent defendants sentenced to community service, aiming to offset presumed revenue drops.

As it turned out, that was unnecessary. At the Criminal Jurisprudence Committee meeting Thursday, Slayton told the committee the bill had significantly overachieved, including in ways that directly contradict the predictions of revenue-focused critics:

• The number of warrants for failure to appear is declining.
• The number of warrants for failure to pay is also declining.
• The number of cases resolved through jail credit is declining.
• The number of cases resolved through community service is increasing.
• The number of defendants getting on payment plans has increased.
• Collections per case have increased: By 6.7 percent at the local level and 7.3 percent at the state level.

To me, that's a remarkable result! The bill is achieving all of its goals and then some. Meanwhile, every sky-is-falling prediction by critics turned out to be wrong. (MORE [9/10]: Here's a link to the handout with the graphs being described above. See a summary of new provisions affecting collection of fines and fees and another specifically summarizing changes affecting jailable offenses.)

Regular readers may recall that the House sponsor of the legislation, Rep. Terry Canales, attributed the bill to a series of blog posts published on this humble opusculum, so I'm particularly glad to learn it's working out well.

Slayton also mentioned that the Texas Public Policy Foundation and the Brennan Center are doing a joint report on the costs to collect Class C misdemeanor debt that he expects will come out before the 86th legislative session. Grits can't wait!

#txlege committees should post witness materials, testimony online

Some Texas legislative committees, like House County Affairs, helpfully post on the committee website the handouts and written testimony given to members at committee hearings.

Others, like the House Criminal Jurisprudence and Corrections Committees, do not.

All of them should, whether it's individual committee chairs choosing to post that material or implemented across the board when each chamber's rules are adopted in January.

Posting handouts and written testimony online, particularly the data-driven presentations frequently offered by agency staff, would make it easier for the public watching the hearings outside of Austin to follow along. It would also improve press coverage of legislative debates.

In general, reporters or members of the public can always, ultimately get access to these presentations, either by appealing to a sympathetic member, calling individuals who testified to ask for their materials, or filing open records requests in the case of agency testimony. But many more people would/could access the information, and with a lot less hassle, if it were posted online automatically.

This move would help everyone, from the wonkiest number cruncher looking for data discussed at the hearing to the average citizen in Abilene or Amarillo watching the hearings from afar and trying to understand what's going on. It would even benefit legislative and agency staff to put all that stuff where they can access it electronically.

Grits would like to see the practice become the rule, not the exception.

***

Still waiting on TDCJ statistical report
Speaking of not posting data online, the FY 2017 TDCJ Statistical report, discussed here, STILL has not been posted online. The last annual dataset released by the agency was for year ending Aug. 31, 2016, so that information is now more than two years old. WTF?

This is all data that TDCJ tracks in minute detail and includes in various, internal reports which are updated monthly. There is no good reason to believe annual reports couldn't be produced by the end of the CALENDAR year in which the fiscal year ends. County jails must update their population figures monthly; there's no way to justify TDCJ getting to sit on their data for so long.

Texas DPS acknowledges short-staffed call center in budget request to reduce license-center lines

Grits has been critical of state officials who responded to long lines at Texas DPS driver-license facilities by blaming drivers who don't use online systems, in part because of dramatic understaffing of the Customer Service Center to the point that 80 percent of customer calls go unanswered and 83 percent of those answered wait on hold than 10 minutes before they talk to a person. Those folks can't be blamed for going to the license center if they can't get their questions answered on the phone.

So I was pleased to learn that a big portion of DPS exceptional items in their legislative appropriations request (LAR) for the next biennium would go toward beefing up the Customer Service Center, including increasing starting salaries. Reported the Dallas News:

Topping the list was a request for pay raises for the offices' customer service representatives. Each makes an average of $26,000 a year. The agency proposed to increase that to $35,000. Doing so would cost $51.3 million in the 2020-2021 budget cycle.

Amanda Arriaga, director of the driver license division, said the move would "honor" the professional work the customer service representatives do and help stanch high turnover. Staff exits contribute to intermittent office closures and frustratingly long lines, she said.

"We have a pretty significant turnover rate at that ... entry level," she said. "We thought this was a great step in the right direction, that the No. 1 thing we should do is give props to our people who are doing this job every day."

She said the department currently has about 200 vacancies in the division.  

By the time the Lege has a) raised salaries and b) filled 200 vacancies (!), the Customer Service Center will become a much more costly line item.

In addition, DPS wants to increase staff at the license centers:

To increase staffing at the driver's license offices, the department will ask for 962 more full-time employees at a two-year cost of $178.6 million. DPS also will look to expand the number of offices in the 15 highest-growing areas in the state, which include Fort Worth, Plano/McKinney and Denton. That would require 952 additional employees at a cost of $190.1 million.

These investments would be a start, but they won't be enough to resolve the problem unless the Legislature addresses the policies which cause more people than necessary to need to renew their licenses at any given time.

The biggest of these self-inflicted wounds is the Driver Responsibility surcharge, which causes hundreds of thousands of Texans to have their licenses revoked every year. Hard to predict the Lege will eliminate it, since they've failed to so many times before, but if they do it will solve a lot of different problems simultaneously. Compared to how much the Lege will need to spend on license-center staffing and Customer Service Center salaries, the $75 million or so per year generated by driver surcharges for trauma hospitals is a relative drop in the bucket.

It's also time to stop requiring sex offenders to renew their driver-licenses annually. They're already subject to registration requirements and the annual DL-renewal adds almost 100,000 people to license-center lines every year who mostly don't need to be there.

Grits has yet to hear any legislator take responsibility for the Lege-driven policies that are causing long license-center lines - neither regarding chintzy budget decisions on the Customer Service Center nor the extra renewals caused by surcharges, nor needlessly punitive annual renewals for sex-offenders, not to mention the use of license revocations for punishment.

Most of these things aren't even part of the conversation. It's taken weeks of discussion for the MSM or state pols to even mention the Customer Service Center's understaffing, even though its dysfunctional nature is a primary source of the problem.

The Sunset Commission, inexplicably, has suggested addressing the situation by moving authority over driver-license management from Texas DPS to the Department of Motor Vehicles. That's completely pointless! The problems stem from bad budget and policy decisions, not which government bureaucracy oversees the licensing function.

Perhaps, by the time session rolls around, debates over DPS license-center lines will have shifted from the initial finger pointing to actually confronting problems with pragmatic solutions. If they do, then the 86th Legislature will focus on: 1) funding the call center, 2) ending the requirement for sex offenders to renew driver licenses annually, 3) abolition of the Driver Responsibility surcharge, granting amnesty to those who've lost their licenses, and 4) ending use of driver-license revocations to punish non-payment of criminal-justice debt. Those are the underlying pathologies and Texas won't resolve them just by throwing money at the symptoms (i.e., long lines).

See related Grits posts:

• Texas DPS getting a bum rap over proposed driver-license center closures
• How the Driver Responsibility Surcharge contributes to long lines at DPS license centers

Twin-Peaks prosecutions will wait for next McLennan DA

Even a local, elected judge in McLennan County is now openly questioning lame-duck District Attorney Abel Reyna's judgment.

The Waco Tribune Herald reported that Judge Ralph Strother decided to postpone the next trial related to the roundup following the Twin Peaks biker massacre in order to let the next District Attorney make decisions about the cases.

Strother said he'd been “troubled by the whole Twin Peaks matter from its inception.” Reported the Trib's Tommy Witherspoon:

It was Strother, even more than [defendant Tom] Mendez’s attorney, Jaime Peña, who questioned prosecutors Thursday about the riot indictment and expressed concerns that they, in effect, had turned what normally is a Class B misdemeanor into a crime that possibly subjects the defendants to life in prison.

Finally! Grits has been waiting three years to hear somebody in authority criticize Abel Reyna's blatant prosecutorial overreach, which IMO amounts to an abuse of prosecutorial discretion. Nearly all of the 155 people indicted over the incident had nothing to do with the shooting (four of the nine dead were shot by police officers, and the identified biker shooters reportedly are all dead).

Prosecutor Robert Moody doubled down defending the system and criticized the judge: “Honestly, I think it’s a little inappropriate for the court to be making its own judgments on whether it is the charge or not,” Moody said. “I think that’s for a jury.”

Here's the unfortunate thing: In a way, given how the system works now, he's right. Prosecutors in 21st century America have near-complete discretion to charge whomever they want with whatever they want. Many prosecutors routinely over-charge, either to gain leverage against a defendant or, as in this case, whenever they find it politically useful.

That authority was baked into the system from a time when judges and juries had more say in the process. But in recent decades, the justice system has come to rely almost exclusively on plea bargaining instead of jury trials. As a practical matter, that removed judges and juries from the process in 97% of Texas criminal cases, leaving nearly all of the institutional power of the state in the hands of prosecutors.

So Moody is right: Prosecutors in general have unrestricted power when it comes to what charge they should bring against defendants. But prosecutors' overarching power in the modern justice system is a bug, not a feature, and Strother is reacting to its seldom-discussed, unintended consequences. Most people would view the abuse of power demonstrated in the Twin Peaks debacle as evidence the system must be fixed, not that absolute prosecutorial discretion is a valuable thing to be defended.

Clearly Judge Strother is tired of sitting by while DA Abel Reyna botches the Twin Peaks cases to a degree that makes the ATF raid on the Branch Davidians look like a well-planned surgical strike. He's hoping, like the rest of us, that McLennan County voters have selected a rational, grown-up person to run the department and is willing to wait to see. It's probably the best alternative.

Credit to Dallas DA on #RoyOliver conviction, TDCJ's phony AC cost estimates, majority of Llano PD under indictment, and other stories

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

Dallas DA deserves credit on Roy Oliver conviction
Much has been written about the murder conviction of former Balch Springs police officer Roy Oliver for killing 15-year old Jordan Edwards, but here are a couple of things I've not seen emphasized. First, this is the second officer in Dallas County convicted of murder in the last year; Ken Johnson from the Farmers Branch PD received a 10-year sentence in January for killing 16-year old Jose Cruz. Further, the Texas Observer pointed out that a third officer from Dallas PD, Christopher Hess, was indicted in June on aggravated assault as a result of shooting into a fleeing vehicle. All that's a credit to Dallas County District Attorney Faith Johnson, who personally made the closing arguments in Roy Oliver's case. She may be a Republican in a mostly Democratic county, but none of our big-city Dem DAs have been as aggressive when police shoot unarmed kids. Grits also found it significant that Gov. Abbott, who appointed Johnson, on his personal Twitter account weighed in to declare, "White Texas police officer found guilty of murder for fatally shooting black teen in car. This life should never have been lost." Both the framing of the incident in terms of race and the implied criticism of police in the episode are unusual, to say the least, for this governor, even if the comments seem appropriate and moderate to this writer.

Majority of Llano PD under indictment.
A majority of the Llano Police Department (five of nine), including the police chief, has been indicted, according to published media reports.

Hard to believe TDCJ when they make self-interested claims
When TDCJ was arguing before the federal courts against having to require air conditioning in the Wallace Pack Unit, they claimed it would be unreasonably expensive, estimating it would cost more than $20 million. Later, reported the Texas Tribune, "Before settling the lawsuit, the department conducted its own research and the cost dropped to $11 million." At yesterday's House Corrections Committee hearing, however, TDCJ executive director Bryan Collier said the agency now estimates the cost to install air conditioning at $4 million, a more than 80 percent reduction from their original estimate. (Notably, the agency spent more than $7 million fighting the lawsuit!) The agency is rapidly earning a reputation for promoting false, self-interested information, not just to the press and the public but in this case, to the courts.

Bipartisan support for push to change response to 911 mental-health calls
When the the Austin Justice Coalition last year succeeded in convincing the Austin city council to vote against the union contract with the Austin Police Association, it freed up millions of dollars that can now be used to promote other goals. Check out the group's recommendations to the City of Austin for budget changes that would improve public safety. Important highlights include following Dallas' example to pilot sending an interdisciplinary team led by health professionals to respond to mental-health 911 calls instead of patrol officers. In this, AJC stands in agreement with US Sen. John Cornyn, who has endorsed the Dallas project. AJC also recommended funding independent investigation of police officer misconduct and paying for a one-year study process to determine whether the city should make the Austin PD crime lab independent.

Details on Harris County's state-jail diversion court
At the joint House Corrections-Criminal Jurisprudence Committee hearing yesterday, Harris County District Judge Brock Thomas discussed a specialty court they've used to keep from sending as many people for incarceration in state jails. This recent blog post from the National Association of Counties published an interview with Leah Garabedian, Harris County’s Chief Criminal Justice Strategist, discussing those projects, which were funded through a grant from the MacArthur Foundation.

Unfunded maintenance piling up at Texas prisons
Grits had highlighted underfunding of prisoner health services in the Texas Department of Criminal Justice Legislative Appropriations Request, and the Dallas News' Lauren McGaughy detailed unfunded facilities-maintenance costs from the same document. The agency has identified $400 million in maintenance needs, and requested funding for $146 million of that. However, in the current biennium, the Lege appropriated only $40 million for maintenance, and the larger amount was requested in the agency's "exceptional items."

Bail reform goes local
The Fifth Circuit's scaling back of Judge Lee Rosenthal's Harris County bail-reform order may have dampened but definitely has not halted momentum for reform, both locally and statewide. The SA Express News published an extensive editorial supporting reform efforts in Bexar County.

More on blood spatter
After interviewing Pamela Colloff about blood spatter evidence, I was interested to run across this journalistic send-up of blood-spatter forensics published last year in the Springfield News-Leader.

Return of The Wooginator
Congratulations to Amanda Woog, who's moving back to Texas after a stint at the Quattrone Center at Penn Law in order to assume the reins as executive director at the Texas Fair Defense Project. Good luck!

Schaefer: What's the point of state jail felonies?

At the Texas House Corrections Committee hearing this morning, meeting jointly with the Criminal Jurisprudence Committee, Rep. Matt Schaefer asked Judge John Creuzot out of Dallas what is the point of the classification "state jail felony" if the results are poor? Why not have some sort of "Super Class A" misdemeanor that keeps people on probation for two years and just "focus on programming?," Schafer wanted to know, or else make everything a third-degree felony so people would be on supervision longer.

Judge Creuzot, who the Democratic candidate for DA in Dallas and one of the architects of the state jail system a quarter century ago, said he didn't understand what it would mean to get rid of state jail felonies unless the Legislature was going to a) mandate strong probation and b) provide funding. Programming inside state jails had been largely de-funded over the years, he noted.

Criminal Jurisprudence Committee Chairman Joe Moody later elaborated that getting rid of state jail felonies would really mean parsing the code to decide which things should be Class A misdemeanors and which offenses would become third-degree felonies, predicting most offenses would likely go down instead of up.

Grits largely agrees with Chairman Moody, and with Rep. Schaefer's Super-Class-A suggestion. The most important change would be to shift most state-jail felonies - starting with drug offenders possessing less than a gram (Grits would recommend up to 1-4 grams as well) - to Class A misdemeanors, perhaps expanding the amount of time they could remain on probation if drug treatment is necessary, per Rep. Schaefer.

Savings from reduced incarceration could be used to pay for expanded drug treatment and other programming. Indeed, it's hard to imagine another source from which money for treatment might come.

MORE: Lauren McGaughy from the Dallas News gave highlights of the hearing on Twitter. See also tweets from the Texas Tribune's Jolie McCullough.

Podcast: Colloff on blood spatter, causes of long lines at DPS license centers, understaffing at rural prisons, and other stories

If you can get past a few bad puns in the intro, I think we've got a good show for you this time on the better-late-than-never August 2018 edition of the Reasonably Suspicious podcast, Just Liberty's monthly discussion of Texas criminal-justice politics and policy.


The segment I've been most looking forward to, of course, was the interview with Pamela Colloff, long-form journalist extraordinaire, who left Texas Monthly last year to write for ProPublica. We discussed her latest New York Times Magazine cover story about an apparent false conviction based on more-than-dubious blood-spatter evidence. (I'll publish my full interview with Colloff over the weekend.) But I was happy with the rest of the show, too. Here's what my co-host Mandy Marzullo, executive director of the Texas Defender Service, are discussing this month:

Top Stories

• Long lines at Texas DPS driver-license centers.
• Texas prison system can't keep rural prisons staffed.

Death and Texas

• Texas' junk-science writ revisiting dubious forensics in capital cases.

Interview:

• Scott Henson interviews Pam Colloff of ProPublica/New York Times Magazine on her latest feature on blood-spatter evidence and more.

The Last Hurrah

• Governor Abbott opposes red-light cameras.
• Healthcare funding beneath 'minimum standards,' say Texas prison docs.
• 5th Circuit scales back Harris bail-reform order.

One minor error I noticed when I was editing this together: I'd said during the Death and Texas segment that DPS licenses forensic hypnotists, when in fact it's the Texas Commission on Law Enforcement.

Find a transcript of the podcast below the jump.