Additional Harris-DA staffing mustn't contribute to the 'low-rent arms race between prosecution and indigent defense' ... or, why Keri Blakinger is a journalism goddess

Now that Keri Blakinger exists, along with the Marshall Project, The Appeal, Google News feeds, and a variety of advocacy newsletters that weren't around before. Grits occasionally wonders if this blog still has much to offer.

Don't get me wrong. I know Keri existed before she showed up performing criminal justice coverage for the Houston Chronicle. I'm pretty sure I've read all she's written about her backstory. But her arrival on the scene in Texas was a game changer for journalism on criminal-justice topics, setting a new standard that's making politicians, journalists, and researchers of all stripes step up their game. In the last 30 years, I can't think of a reporter whose work has so significantly influenced the culture of Texas journalism.

The latest episode to make me consider her import involved Keri's coverage of a report from Texas Southern University's Center for Justice Research.

Normally, the findings of such a report would be promoted without comment by journalists of all stripes, first in the local newspaper, then on TV. Then, a few days later, it would fall to Grits to do all the "what abouts" and "isn't it true thats," which then may or may not be followed up on later if politicians or other stakeholders decide to press the point.

But Keri does this work right on the first pass. Amazing! What a breath of fresh air!

The biggest but not the only flaw in the report was that its top finding applied a standard of one prosecutor to 10,000 civilians to say Harris County needs 104 - prosecutors - magically, almost exactly how many District Attorney Kim Ogg asked for. Problem is, that one per 10k standard is completely made up!

The lead author of the TSU study backtracked, declaring, "the primary goal of the population analysis was to pick a baseline measurement for purposes of comparison, and that for the purposes of creating a ratio it didn’t matter if that standard was 'not adopted and not accepted.'" But for a standard that didn't matter, they leaned on it quite heavily: It's the top bullet point in their findings.

For the record, Grits is not among those, if they exist at all, who claims the Harris County DA's office has all the staff it needs. Rather, I believe 1) staffing increases should only be considered in the context of increases in indigent defense spending, where caseloads are also excessive, else the system become further imbalanced, 2) staffing increases should be targeted toward funding specific DA functions that reduce, not increase, incarceration (e.g., to manage diversion programming or expanding case screening at intake to include Class C misdemeanors), and 3) the office's decades-old structure of letting rookie prosecutors suffer high caseloads while more experienced lawyers supervise should be reconsidered from scratch. The office has been operated that way at least since Carol Vance's tenure; it's time to modernize. Funding an antiquated structure won't help.

This last point has been particularly under-considered. Jennifer Laurin at the UT-law school made the point in Keri's story that cross-agency comparisons don't consider differences in how agencies are staffed and what they do:

“There is sufficient variety in how jurisdictions staff cases, how they administratively count cases and how they structure workflow from police input to prosecutor decision-making that it is exceedingly difficult to compare,” Laurin said, after reviewing the document. “It might be that Harris County is not staffed at optimal levels but the comparisons the report provides in and of themselves do not provide evidence of that.” 

For instance, in some jurisdictions - such as Cook and Maricopa - the prosecutors’ offices represent the county in legal matters, a task taken on here by a separate entity, the Harris County Attorney’s Office.

For my money, it's possible and even likely the DA's office could use more staff. The same is true for indigent defense, and IMO those problems should be addressed simultaneously.

But Ogg proposed expanding her agency's attorney staff by nearly a third without identifying particular needs the new staff would solve. If she wants to make the case for more staff, take some of the office's asset forfeiture money and hire a consultant to identify new staffing that would contribute to reduced incarceration. Then the commissioners court will know what portions of the office's budget require expanded funding to achieve their decarceration goals, without simply aiding one side in the low-rent arms race between prosecution and indigent defense.

Cops make similar arguments to this report for more staffing all the time, complete with made-up staffing standards and fronting progressive goals while leaving lots of discretion to spend the money on regressive things. #cjreform activists, like myself, who distrust such broad grants of discretion, have simply been burned too often. If the problem is real, the request will survive (and IRL, be bolstered) by more research and specificity. What doesn't help is promoting a staffing standard somebody just pulled from their rear end.

It's breathtakingly awesome that Keri Blakinger exists and gets assigned to these stories. To me, her value has little to do with the fact that she's formerly incarcerated. I'm sure it adds something to the mix, but it's her skill set, work ethic, and tenacity that make her stand out. The fact that she essentially took over the Texas prison beat from a sycophantic senior reporter who just made stories up only heightens the contrast.

Grits for Breakfast is approaching the 10,000-post mark, and a huge proportion of those essentially add easily identifiable, counterfactual research to balance unsupported assertions published in MSM articles. I occasionally get mistaken for a reporter because that's a reporter's job, but not many of them do it. Keri does.

Indeed, the only problem with Keri Blakinger is that there is only one of her. If one or two more existed, your correspondent would have little to contribute here and could ride off into the sunset. But for now I'll remain a little longer; she is one of a kind.

Podcast: Ranking the greatest American prison songs, a crowd-sourced exoneration out of Tyler, and other stories

Check out the August episode of the Reasonably Suspicious podcast. We've got a special treat this month, with Texas Monthly's Michael Hall stopping by to tell us about the latest innocence case he's been covering out of Tyler, and a special segment in which he and I rank the greatest American prison songs

Here's what's on tap this month:

Top Story: 
Hemp SNAFU led to de facto natural decrim experiment for marijuana in many counties.

Interview: 
Texas Monthly's Michael Hall tells the story of an actual innocence case out of Tyler that was broken open by a Michigan podcaster.

Conversation: 
Scott and Michael Hall rank the greatest American prison songs. Go here for a YouTube playlist of all the songs we discussed, plus some from Scott's list that didn't make it into the podcast.

The Last Hurrah:
* DPS intel chief who warned of Mexican rapists arrested for sexual assault
* Texas House members create criminal-justice reform caucus
* Harris County bail lawsuit settled

As always, I've ordered a transcript of the podcast and will post it when it comes back.

Causes of rising Smith County jail population are knowable, but officials like the system ineffable

The Smith County Jail population is growing, reported the Tyler Morning Telegraph, and the main reason is that the county is disproportionately incarcerating pretrial in routine cases. The DA told the paper,  “Over the years we see that that number trends upward sometimes and trends downward sometimes. There’s nothing specific that’s causing it to be higher right now.”

But we do know a few things about why the jail is so full. Reported the Telegraph:

While Smith County has 0.8% of the state’s population, the county jail had 1.2% of the state’s county jail population in 2019. The trend is consistent among most types of crime. 

In July, the county had 1.8% of people accused of misdemeanors awaiting trial; 3.6% of people convicted of misdemeanors; 2% of people accused of state jail felonies awaiting trial, 3.3% of state jail felons sentenced to state jail, and 2.3% of convicted felons.

With 0.8% of the state's population and 1.8% of misdemeanants jailed pretrial, plus 2% of state jail defendants awaiting trial, Smith County is disproportionately incarcerating lower level defendants pretrial compared to other jurisdictions. That's a self-inflicted wound. A whopping 65% of inmates in the Smith County jail as of last month were incarcerated pretrial. That's the result of decisions by local elected officials in the judiciary and the DA's office, not just some random event.

Similarly, they're using county jail to incarcerate people as punishment for misdemeanors much more often than the rest of the state. Again, they have 0.8% of the state's population and 3.6% of Texas defendants jailed after misdemeanor convictions. That's 450% above the statewide rate! The number is small-ish (55), but the fact remains for multiple categories of defendants, Smith County officials are using incarceration much more frequently than the rest of Texas.

Some of the same solutions Grits recently recommended for Denton County would certainly be in order. But the problem in Smith County is worse.

Local reporters in Tyler interested in digging deeper should try to replicate Texas Appleseed's recent analysis of jail bookings to identify cohorts of prisoners who don't need to be locked up for public safety purposes. It's simply not true that the cause of rising jail populations in an era of declining crime is unknowable. It's just that they're not telling you.

Are Texas' prison population reductions significant?

On the Reasonably Suspicious podcast this month, my co-host Amanda Marzullo and I discuss Marie Gottschalk's article about Texas justice-reform efforts in the Baffler, in which she argued that Texas' decarceration reforms had been overstated and demonstrated the limits of left-right coalitions on #cjreform.

Since Grits had to look them up for our podcast conversation, let's record some data links here before I clear my browser tabs.

I largely agree with Gottschalk's assessment of Texas' progress, and have said much the same thing before. (Indeed, Grits was quoted in her article.) Moreover, her observations about the cognitive dissonance between the Texas Public Policy Foundation's Center for Effective Justice supporting state spending on mental health and drug treatment, while other parts of the organization oppose Medicaid expansion, are difficult to argue. (Check out the podcast, out this week, for that discussion.)

But there's an extent to which her complaint is overstated. Texas undeniably has made significant progress.

For example, the latest annual statistical report on the Texas corrections system (2018) is out. As of August 31, 2018, Texas' prison population  was at 145,018 - as as low as it's been in two decades, and down seven percent from a high of 156,126 in 2008.

But Texas' population has boomed over the intervening years, so the overall incarceration rate has declined. For example, in 1999, Texas had 149,684 prisoners. But the state's population back then was 20.4 million. By 2018, the state population was up to 28.7 million.

So, in 1999, Texas' incarceration rate per 100,000 people was 734; in 2018, it was 505. That's a 31 percent decline. From a number-of-people incarcerated standpoint, Texas' prisoner reduction happened mostly because the parole division reduced technical revocations and increased parole rates for lower risk inmates. But population growth is the bigger factor in lowering the rate.

Among reformers back in the '03-'07 period, none of us fantasized that what was later dubbed the "Texas model" would radically reduce the number of people incarcerated, especially after Governor Rick Perry vetoed the legislation in 2005, allowing only a weakened version to pass in '07. The goal was to stop the sharp upward curve, and to build momentum for future reforms.  And only the first part of that goal was achieved.

The reason I largely agree with Gottschalk's argument is that Texas hasn't really done anything since then on the decarceration front. We've been a leader on innocence, on forensics, and made strides on debtors-prison reform. But the only major decarceration measure that's passed since 2007 was the 2015 increase in property-theft thresholds. And that little-noticed item only passed as a Senate amendment to a House bill tacked on by Konni Burton; the legislation couldn't make it through the process on its own.

Crime has plummeted over the last 20 years, but prison populations in Texas were affected only a little.

As of 2019, decarceration progress in Texas has utterly stalled, while red states like Oklahoma and Utah have reduced drug possession to a misdemeanor and enacted decarceration reforms of which Texans can only dream.

So the Lone Star State has made more progress on prison decarceration than its harshest critics might grant. But it remains inarguable that there's much more to do. And the Texas Legislature, particularly the Texas Senate, has at this point relinquished all momentum toward further progress.

Harris County bail-reform settlement a landmark defeat of Texas bail-industry lobby

There once was a county named Harris 

Whose bail system left them embarrassed

Then judges were sued

And elections did lose

So now lo and behold they can settle this!

The bail settlement in Harris County may not be as important, when viewed through an historical lens, as Brown vs. Board of Education, despite Harris County Commissioner Rodney Ellis' grandiose declaration to that effect. But it's still a Very Big Deal, and the first domino to fall in what will ultimately conclude with a 5th Circuit (or US Supreme Court) decision governing pretrial release of criminal defendants in Texas.

Harris County judges have enacted a "new policy of automatic, no-cash pretrial release for about 85% of low-level defendants," reported the Texas Tribune. 

Art by Grits. Click to enlarge.

The settlement news warms the heart of this aging polemicist. Excessive pretrial detention in Houston was one of this blog's earliest hobby horses, presaging many of the debates which ended up resolved through federal litigation nearly a decade-and-a-half later. For example, check out a series of Grits posts on the topic rounded up in 2005 after the Harris Co. probation department began using them as training materials. Most of those critiques would remain salient until well after the just-settled litigation got serious, at which point the county began to implement more significant changes. At the time, though, there were 1,900 people sleeping on the jail floor due to overcrowding, so in a way, the issue was even more pressing back then.

Which is why it's worth recognizing that it took the federal courts to accomplish these changes that every expert who ever looked at Harris County's system had been advising for more than a decade. For whatever reason, whoever won elections, red or blue, there was never any appetite for serious bail reform through the political process. Someone had to sue, and win, to get judges to stop ordering bail for most misdemeanor defendants. (Many of the reasons for that are specific to Houston; your mileage may vary in other jurisdictions.)

Another notable point: At the commissioners court, as at the Texas Legislature, bail bondsmen found champions but could not sustain a majority after an informed debate. That's my big takeaway from those two, recent bail fights, one where reformers lost and one where they prevailed: At both the state and local level, bail bondsmen have shown they can be beaten. They had an impressive track record before this year, and the first half of 2019 may have finally demonstrated some chinks in their armor.

Here's why I disagree with Rodney Ellis that this litigation settlement is as important as Brown vs. Board of Education: While it resolves the underlying issues, it also robbed the 5th Circuit (and/or SCOTUS) of the opportunity to set a baseline that applied to all Texas, Louisiana, and Mississippi jurisdictions. Instead, the settlement terms only apply to Harris County and at most are advisory recommendations everywhere else.

So it will be some other county currently being sued - probably Dallas, I'm told by attorneys involved in the litigation - which ends up setting binding precedent for Texas courts, particularly with regard to setting bail in felony cases.

Once that happens, the Texas Legislature will be in a much better position to know what bail-reform legislation should look like when they come back in 2021.

DPS intelligence chief who briefed Trump on immigrant rapists himself accused, arrested, jailed for sexual assault: He ran the state's fusion centers gathering intelligence on millions of Texans

This seems self evidently awful, so rather than opine on the subject in prose, here's the short version of how I feel about this story:

Click to enlarge

Policy solutions for Denton County's understaffed jail

The Denton County Jail is suffering an "extreme staffing shortage," reported the Record Chronicle, although their 13 percent vacancy rate is far lower than at the Texas Department of Criminal Justice.

Even so, it's worth reiterating the quickest, easiest ways for Denton County to reduce its jail population to levels they can safely staff:

Reduce arrests for Class C misdemeanors by the Sheriff, Denton PD, and other local law-enforcement agencies by implementing policies similar to Austin PD's "Freedom City" initiative.

Use discretion to stop arresting/charging people for low-level marijuana possession until the state either changes the hemp law or crime labs are able to distinguish legal from illegal THC levels in pot.

The District Attorney could use his discretion to dismiss Class B driving-with-invalid license cases, which mostly stem from about-to-go-away Driver Responsibility surcharges. (These have become increasingly common.) Arresting people for what amounts to a poverty crime - essentially an administrative violation, at that - contributes nothing to public safety.

These are all categories of misdemeanor defendants who would likely plead out to time served, anyway. Why not change policies on the front end to keep them out of jail and avoid having to hire guards to manage them?

Denton County may not be the first jurisdiction that leaps to mind when it comes to criminal-justice reform, but Necessity is the Mother of Invention. If they don't want to pay jailers competitive salaries compared to median local incomes, the other option is to jail fewer people. Reducing incarceration among these discrete, nonviolent categories would be a smart place to start.

Texas' fumbling response to the opioid epidemic

Texas has botched its response to the opioid epidemic six ways from Sunday.

First, Gov. Greg Abbott vetoed a bill passed by the Texas Legislature in 2015 to allow people to call 911 in the event of an overdose without being charged with drug possession. As the law stands, it disincentivizes calling for emergency services because helping a friend who overdosed exposes the caller to prosecution. More people die every year because of Gov. Abbott's cruel and senseless decision on that front.

Then, the state decided to crack down on opiate prescribers, except rules the Pharmacy Board developed are a chaotic mess and exacerbating the problems they were created to solve. The Dallas News editorial board gave a good assessment of the problem.

Finally, and most damagingly, Texas remains one of a minority of states whose leaders have adamantly refused to expand Medicaid, even though every analysis of the opioid crisis has emphasized the woeful lack of resources for drug treatment as the state's biggest barrier to addressing it. More than half of Texas' drug treatment resources come through matched funds from the federal Medicaid program, while nearly all the rest is spent by the Texas Department of Criminal Justice.

As Grits has written before, there are two ways for Texas to increase drug-treatment spending without raising taxes: A) Expand Medicaid under the Affordable Care Act, or B) reduce penalties for low-level drug possession and use the savings from reduced incarceration to pay for more treatment services. There is no option C.

Flirting with more rational pot policies

Grits returned yesterday from a much-needed vacation in cooler climes, only to find Texas #cjreform news gushing like a fire hydrant pried open to beat the summertime heat.

Let's start with marijuana. Just before I left town, we learned that the Texas Legislature had altered marijuana laws to make it difficult-to-impossible to prosecute low-level marijuana cases. Bexar County DA Joe Gonzalez took leadership on the issue, announcing he would not prosecute possession cases without a lab result. DAs in Tarrant, Fort Bend, Nueces, and Williamson Counties followed suit, with Williamson County Attorney Dee Hobbs citing the risk of false convictions. And the Fort Worth Star-Telegram's editorial board quoted Grits in a post calling for District Attorneys to use the opportunity as a natural experiment to see what would happen if pot were decriminalized.

Notably, while on vacation in Quebec, Grits got a first-hand look at how marijuana legalization plays out in the real world. Two words: boring and lucrative. Pot smoking wasn't any more prevalent in public than previously, said the locals, but the dispensaries were bustling with commerce and filled with satisfied customers. Prices were 40-50% less than black-market prices in Texas, even though Canadian taxes on weed are significant. All in all, it seemed to this writer like the epitome of a win-win policy; just a very grown-up way to handle the matter.

Reasonably Suspicious podcast, July 2019 episode: Featuring an interview with TPPF's Marc Levin about parole, allegations of judicial misconduct in San Antonio, and a proposed mascot for the Texas Court of Criminal Appeals

Here's the July 2019 episode of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice politics and policy. Co-hosted by me and Amanda Marzullo, it's also available on iTunes, Google Play, and Soundcloud.

This month:

Top Stories

• Texas Legislature legalizes hemp and in the process may have accidentally made it impossible to prosecute workaday pot cases. Is this really a problem?
• San Antonio Judge ignores due process on probation revocations. How common is this?

Interview

Marc Levin of the Texas Public Policy Foundation discusses probation and parole policy.

Interview

Chris Harris of Just Liberty on the rollback of Austin's anti-homelessness ordinances.

The Last Hurrah

• Texas Legislature created 50 new crimes in 2019
• Alfred Brown denied innocence compensation
• The Canadian Supreme Court has a fuzzy mascot owl named "Amicus." What should be the mascot for the Texas Court of Criminal Appeals? My suggestion:

Find a transcript below the jump.

For the summer #cjreform reading pile

Grits will head on holiday soon, and while I'm hoping to spend time engrossed in fiction, I usually end up reading a few academic articles on justice topics for which my day-to-day work hasn't afforded time. To that end, here are a few items I'm flagging to read later:

• The Rational Villain Myth: This article addresses a hobbyhorse I've been riding most of my adult life. Economists think they know a lot about crime. In my experience, such certainty is based on the same delusions that the rise of behavioral economics (for which Richard Thaler won a Nobel Prize) intended to correct. Thalerites aside, MANY traditional economists cling to this "rational villain" theory. Economists generally tell us that punishment is the "price" of crime and if you want less crime, one need only raise the price. However, crime is a more complicated social problem than that, and in situations involving addiction, family violence, mental-health problems, extreme poverty, or an array of other variables, that simplistic approach harms people and creates blinders that cause policymakers to bypass better solutions. I'm looking forward to digging into this one.

• The Policing of Prosecutors: This article seeks to apply lessons from regulating discretion in administrative law to the prosecutor's function, and it's an interesting approach. Parole decisions would benefit from similar tools.

• The Founders Forfeiture: Asset forfeiture in early America included constraints and recourse for property owners that don't apply to modern forfeiture cases.

• Mass Incarceration: Where do we go from here?: This New-York-state-centric essay surveys justice-reform approaches nationally to suggest decarceration policies for the Empire state in light of their recent history.

• Beyond the Algorithm: The Center for Court Innovation examined issues of pretrial reform, risk assessments, and racial fairness.

• The Institutional Life of Algorithmic Risk Assessment: This article focuses on the tensions between creating a validated statewide risk assessment and tailoring to local needs, focusing on bail reform in California.

• The Intersection of Juvenile Justice and Early Childhood: How to manage family engagement: This study examines the effects of increased engagement in children's lives by incarcerated parents, recommending a program providing structured visitation between incarcerated fathers and their children. The Crime Report also covered this one. 

• A Perspective on Special Weapons and Tactics (SWAT) Teams: Finally, our friends at the Texas Public Policy Foundation are expanding their footprint in policing issues, calling for restraints on use of SWAT teams.

Biometric Blues: Facial-recognition tech starting to be good enough to threaten privacy

Several recent items related to the use of facial recognition technology by law enforcement caught Grits' eye lately:

• San Francisco and Lowell, MA banned the technnology after it was revealed Amazon was selling facial recognition tech to police departments.
• Axon, which manufactures Tasers and is the largest police bodycam manufacturer, decided not to use facial recognition tech with its products, at least for now.
• The Government Accountability Office came out with an analysis of facial recognition tech used by the FBI, finding that the latter agency hadn't implemented earlier recommendations to improve accuracy.
• Shopping centers have begun using facial recognition tech. But schools are beginning to reject it (though some will surely adopt it).

The rise of facial recognition and other biometric identification technology was an early hobbyhorse on this blog. I stopped covering the topic after civil libertarians lost all the big, related fights at the Legislature over gathering biometric data, particularly from Texans' driver's licenses. (Texas allowed DPS to gather Texas drivers' fingerprints and facial-recognition biometrics from their licenses then almost immediately began to hand the data over to the federal Department of Homeland Security.) But those were bitter, memorable battles, with the losses made more palatable only by the reality that, back then, facial-recognition tech simply wasn't ready for prime time and didn't work well enough to threaten privacy.

Today it's closer, but not quite yet there. But that utilitarian excuse for not confronting totalitarian surveillance tech will soon fall away. Even if facial-recognition is reliable, it's a bad idea as a generalized surveillance tool. So, arguments against it must ultimately rest not on the prospect of errors (right now, they have higher error rates when identifying racial minorities), but on the prospect of privacy vanishing, and a new form of high-tech totalitarianism rising, if the product were to ever work perfectly.

For more thoughts and background on the subject, here's an old blog-post series I wrote headed into the 2005 Texas legislative session:

• Biometric Blues
• Biometric Blues, Second Stanza
• Biometric Blues, Third Stanza

Looking back, much of it still holds up.

Homes and services, not criminal prosecution, are the best (read: only) solution to homelessness. Keep the cops out of it!

We've all heard the refrain: Police are overworked because they've been asked to solve society's social problems.

So why do our police-union friends get so upset whenever government tries to handle those problems by other means?

The brouhaha over Austin's homeless-ordinance revisions - which eliminated the no-sit/no-lie ordinance and modified the panhandling ordinance to make it constitutional - really is much ado about nothing. In fact, it may even be cause for cautious optimism. At the same meeting, the Austin City Council also voted to create a new homeless shelter to provide expanded services, on top of voters approving housing bonds in 2018 to expand affordable housing options.

Giving tickets to homeless people who could never pay them wasn't solving any problems, so it's not like Austin eliminated tools that were working. All the law did was set people up to have an arrest warrant later, at which point county taxpayers would host them in the jail for a while. But that doesn't help anything, and in the long run, created additional problems.

Austin spent years ramping up punitive responses to homelessness that never worked. Maybe this won't either, but it's got a better chance than continuing with the failed status quo.

The question of "What works?" brings us to an excellent and timely Texas Tribune article by Juan Pablo Garnham, "Why homelessness is going down in Houston and up in Dallas." The short answer: An influx of funds, mainly from the federal Department of Housing and Urban Development (HUD), to provide homes and services to homeless people. As a result, Houston has reduced its homeless population by 53 percent, according to an annual census, while the problem in Dallas is getting worse, surpassing H-Town in the latest count. What's their secret?

“If you have a homeless person and you put them in houses, and simultaneously give them social, behavioral and health support services, 92% of them will be stable in that facility,” [Houston Coalition for the Homeless executive director Mike] Nichols said. 

But there’s a hidden secret in Houston’s formula: coordination. 

The scenario from 20 years ago when different organizations would serve food, give clothes or offer shelter — all done separately — has changed. There’s now constant communication between these institutions and a digital database called the Homeless Management Information System (or HMIS) that allows people at several organizations to understand each case. 

Most cities today have HMIS in place, but Houston was quick to adopt it, and that helped organizations strategize, analyze, share information and find personalized solutions.

Giving homeless people tickets won't get them off the streets, but providing them homes, services, and opportunities to get back on their feet will. Austin has finally chosen to shift resources toward confronting homelessness with policies that at least have a chance at working instead of doubling down on ineffective, send-in-the-cops strategies.

Let's do mental health next.

No need for special session on marijuana potency, but if Governor Abbott calls one, he should greenlight broader pot debate

Grits has enjoyed the delicious irony of the Texas Legislature legalizing industrial hemp in such a way that criminal prosecutors now say they can't make their cases. But the growing calls for a special session over this issue should be quashed. There's really no need; worst-case scenarios aren't that bad, and there are easy fixes that don't involve new legislation.

The issue is that industrial-grade hemp with a THC content below .3% has now been legalized, first by the Trump Administration and then by the Texas Legislature. But Texas crime labs don't have the necessary equipment to delineate marijuana by THC levels. (A legislator told Grits these machines cost about $44,000 each. UPDATE: This was understated. According to the Houston Chronicle's Keri Blakinger, $44k was the cost for Ag-grade testing equipment; forensic-grade machines would run between $300k-$400k. AND MORE: Blakinger has now reported that the more expensive machines are needed for analyzing edibles, but not plant material.)

Here's the thing, though: this won't stop police from arresting people for marijuana (in jurisdictions that still do so). They only need probable cause for an arrest. Instead, the change would allow defense attorneys to challenge allegations later on by demanding the THC levels be proven. Most pot arrests already result in time-served pleas after just a few days, so nothing would really change except the lack of a criminal conviction.

Given that the Governor, who is the only one who can call a special session, wanted to remove pot smokers from county jails in the first place, he may decide just stand pat and allow this legislative error to accomplish what Lt. Gov. Dan Patrick would not allow.

To be clear, like Governor Abbott, I don't believe people should be arrested for low-level pot possession in the first place, much less charged with a Class B misdemeanor for it (max penalty: 6 months in jail and a $2,000 fine). So as far as I'm concerned, there's no crisis here that impacts public safety. Everything will be fine and the sky won't fall if nobody is prosecuted for pot possession over the next two years (a highly unlikely, worst-case scenario).

Does it put prosecutors in a tough spot? Sure. But they have an easy alternative: Just use their discretion to dismiss these cases.

Alternatively, if the Governor agrees it's a big problem to dismiss these cases, the situation can be resolved without a special session. If there were no other options, maybe the Governor's Criminal Justice Division could help pay for new equipment with grants. But in most cases, if District Attorneys are really worried about it, they could pay for the machines out of their asset forfeiture funds. Or they can just stop accepting charges in these cases, which would be easier, cheaper, and have no negative impact on public safety.

If the Governor wouldn't call a special session after Hurricane Harvey, the idea that we're going to do one to salvage petty pot prosecutions makes little sense.

If he DOES choose to call a special session on marijuana, though, Governor Abbott should frame the call in such a way that allows the Legislature to take up his proposal to reduce marijuana penalties. That suggestion was endorsed in the state GOP platform and polling shows majorities in both parties support the idea. That way, instead of calling attention to the failures of Texas government, a special session call could be framed as promoting something positive that's overwhelmingly supported by the public. That's the only way a special session makes sense.

Judge abused discretion, violated due-process rights, by revoking probation w/o a hearing: Will he be sanctioned?

A misdemeanor DWI case out of San Antonio deserves broader attention, with interesting and important implications on several levels.

Wayne Christian - a Republican county-court-at-law judge in Bexar County first elected in 1996, who ran unopposed in the 2018 election - has routinely inserted himself on behalf of the state in lieu of county prosecutors in probation revocation cases, often refusing to allow testimony and deciding them with no evidence. But thanks to appellant Allison Jacobs, her attorneys, and perhaps most interestingly, new Bexar DA Joe Gonzalez, that practice will now be revisited.

Here's Judge Christian dressed in a camo robe. (source)

According to columnist Josh Brodesky of the SA Express News, Judge Christian's court "leads all County Court-at-Law judges in what’s known as MTRs - motions to revoke probation. He also leads other judges in jail bed days."

In Jacobs' case, she'd been a model probationer but failed three urinalysis tests toward the end of her 14-month probation period. Her attorney wanted to argue that this was a false positive caused by a diet pill she'd been taking, which long-time readers know is not an implausible scenario, particularly in Bexar County.

But Judge Christian refused to hold a hearing and based his decision to revoke on a brief conversation with the court liaison from the probation department. This violated Jacobs' due process rights, which should have entitled her to challenge evidence against her in a hearing before she's revoked to jail. But Christian went even further. Reported Brodesky:

Not only did Christian sentence her [to jail], but court records show he also denied her appeal for reasonable bail. He then modified a district court judge’s order of bail for $1,600 to make conditions more onerous. Another district judge lessened those conditions, and when Jacobs was finally released from the Bexar County Adult Detention Center in November, Christian responded. 

According to court filings: Upon release on bail, Jacobs was scheduled for a pretrial services orientation on Nov. 19, 2018. But Christian called pretrial services and had the orientation changed to Nov. 13, 2018. Pretrial services was unable to notify her about this change, so she missed the orientation. The next day Christian revoked her bail, issuing a warrant for an arrest. 

What gives? This is a defendant who was two weeks away from completing 14 months of probation for a serious, but misdemeanor charge. 

[Jacobs' attorney Jodi] Soyars said she likes Christian personally, and, obviously, has concerns about crossing him. She has other cases in his court. But she viewed this as representative of a broader issue and unfair to her client.

“He routinely denies defendants the right to due process,” she said.

So the judge routinely disallows prosecutors from participating in revocation decisions, acting himself on behalf of the state. And he doesn't allow a defendant to present evidence of possible actual innocence, simply declaring the allegations "true" by fiat without, as Soyars said in her brief, a "scintilla of evidence."

And it wasn't an isolated incident. Again from Brodesky: “There have been situations where our prosecutors have been placed in positions where they are not in agreement with going forward on a motion to revoke,” District Attorney Joe Gonzales said. “And they have made the decision to not sign off on the motions, and the judge has moved on them on his own.”

Let's delve into the secondary issue of denying the defendant bail while her appeal was litigated. The actions attributed to Judge Christian, who went out of his way to thwart the decision of a district judge in a habeas corpus writ, seem like extraordinary measures for a judge to take. The brief from Jacobs' attorney includes a footnote - which the DA's office corroborated (more on this later) - describing the remarkable sequence of events in more detail (citations to the record omitted):

While the appeal and motion for new trial procedures were taking place, some additional procedural issues arose and were dealt with, which are evident in the clerk’s record. A brief explanation to make sense of the clerk’s record follows: After a Notice of Appeal was filed, a Motion for Reasonable Bail Pending Appeal was also filed. . This is a misdemeanor case and bail was required to be granted. Judge Wayne Christian denied bail. An Application for Writ of Habeas Corpus Seeking Setting of Reasonable Bail was then filed and heard by District Court Judge Melisa Skinner in the 290th District Court. Judge Skinner granted the Writ and ordered bail of $1,600 and SCRAM as a condition. . The same day, Judge Christian called his clerk and added full GPS, daily reporting, and daily UAs as conditions of release, effectively changing the order of a District Court judge. A second Application for Writ of Habeas Corpus was then filed, requesting reasonable release conditions. Judge Joey Contreras in the 187th District Court set this Writ for a hearing on October 17, 2018. At the hearing, Judge Contreras granted reasonable conditions. After several weeks passed with Jacobs unable to meet the bail requirements, Judge Contreras amended his bond order to allow Jacobs a way to be released pending the appeal.  Jacobs was released from jail and given an orientation date of November 19, 2018 to report to pre-trial services. On November 13, 2018, Judge Christian called pre-trial services and ordered pre-trial services to require Jacobs to report on that date. Pre-trial services was unable to contact Jacobs and Jacobs had not yet had her orientation that would put her under the requirements of pre-trial supervision. Judge Christian then required pre-trial services to send over a violation report on November 14, 2018, whereupon Judge Christian revoked her bail and issued a warrant. Judge Contreras again intervened and reinstated Jacobs’ bail on November 16, 2018.

This conduct to my mind, deserves public censure if not ouster by the State Commission on Judicial Conduct. And indeed, in its opinion, the 4th Court of Appeals called Christian's actions an example of "an unsuitable practice by a county court at law judge."

All of this is remarkable, and more than a bit concerning. Judge Christian seems intent on ignoring the mandates of his job and substituting his own judgments for the process. In doing so, he's also increasing incarceration - keep in mind he has the highest numbers of all Bexar-county-court-at-law judges on both revocations and resulting jail-bed days.

But perhaps the most remarkable aspect of the case was the fact that District Attorney Joe Gonzales joined with defense counsel to dispute Christian's "unsuitable" practices, which apparently had been tolerated by his predecessors without contest for many years. 

One aspect of electing reform-minded prosecutors Grits had not fully considered (or perhaps more accurately, had not dared dream possible) is that they could challenge unconstitutional court practices from the inside, or join those challenges, as happened here. So kudos to Gonzalez for his stance here, that's a big deal!

Prosecutors' role should be to "seek justice." But too often, they see themselves as on a side, and it's the opposite side from the defendant. So when the judge plays prosecutor as well, as is the practice in Judge Christian's court, defendants without means to pay a phalanx of private lawyers have little chance.

Finally, Grits was interested in the Express-News' analysis that Christian leads all other Bexar judges in motions to revoke. How do we know? That's something tracked in state-level court data, but totals are only available in Office of Court Administration queries at the county-wide level.

Grits doesn't immediately know the data source from which Brodesky identified the number of probation revocations by court. (If any readers know how to access this data from public sources, please let us know in the comments.) But that's a useful figure because, as regular readers are aware, probation revocations are a significant cause of Texas prison admissions, and revoked misdemeanor probationers go to county jail, contributing to local costs. 

So, to summarize, here are the implications and questions Grits would take away from this episode (feel free to suggest more in the comments):

1. A judge for years felt free to ignore his duties to hold probation-revocation hearings and neither local defense attorneys nor the DA's office called him on it. Is this happening elsewhere?
2. Will the State Commission on Judicial Conduct sanction Judge Christian?
3. Does this flagrant disregard for judicial duties rise to the level of the state bar challenging Christian's licensure?
4. Will media in other jurisdictions begin analyzing which judges have the most probation revocations and hold them accountable for successes/abuses?
5. An under-examined aspect of evaluating "progressive" prosecutors will be how they respond to appeals challenging unconstitutional practices and other reform litigation. People have discussed this in the context of bail reform, but Jacobs case shows there are potentially many more areas where this could become important.  

This is quite a significant case, I think, certainly for San Antonio, and potentially exposing an area where judges may be abusing their discretion in other jurisdictions as well, if reporters and advocates were to look. The pressures on ADAs and defense counsel to acquiesce in judges' abuses for the sake of other cases certainly aren't unique to Bexar County.

Driver Responsibility surcharge abolition, by the numbers

The death of Texas' Driver Responsibility surcharge was the single, outstanding #cjreform highlight of the 86th Texas Legislature, outdistancing all other reforms in terms of impact by a country mile. Let's run through the numbers:

Nearly 1.4 million drivers currently have suspended licenses based on unpaid Driver Responsibility surcharges, or roughly half of all drivers who've ever received them. And on its website, the Department of Public Safety pledged to "reinstate all driver privileges that were previously suspended solely for having unpaid surcharges." But hold on just a second ...

While everyone will have their debt erased - the Texas Fair Defense Project estimated that the total amount of debt waived will approach $2.5 billion - a large number of people won't immediately get their licenses back.

Reported the Dallas Observer, 630,000 drivers will be immediately eligible to get their licenses back on Sept. 1st. Another 350,000 will be eligible to renew their license after paying a reinstatement fee, and 400,000 have other holds on their drivers licenses, mostly through the Omnibase program, through which the state suspends licenses for non-payment of fines and fees.

The reinstatement fees for the 350,000 people who owe them are $125 (Source), so that's just shy of $44 million dollars in fees those drivers must pay to get back on the road.

Bottom line, some portion of those folks will still have suspended licenses a year from now, plus the 400k people with licenses suspended under Omnibase also are still out of luck.

Thus, the new law stopped the generation of new surcharge debt, and waived past debts, but it only resolved license suspensions for a fraction of surcharge debtors - perhaps half of them or more.

Going forward, surcharges were abolished for points, no-insurance, and driving with an invalid license (DWLI), but retained and converted into criminal fines in DWI cases. Under the old program, DWIs only made up 12 percent of people who were assessed surcharges, so that eliminates them for 88 percent in the future. It remains to be seen how often judges waive those new DWI fines - they couldn't waive the surcharges at all.

There was an extent to which the Driver Responsiblity surcharge contributed to county-level incarceration by generating a huge pool of drivers with suspended licenses. When the surcharge program first rolled out, county jails were flooded and the Legislature in 2007 reduced first-offense DWLI penalties from a Class B to a Class C misdemeanor. But people are still arrested and jailed for second offense DWLI and higher.

In 2017, the Office of Court Administration documented 21,836 new Class B DWLI cases. We know that the overwhelming majority of people with suspended licenses lost them because of the Driver Responsibility surcharge - let's assume 75 percent, for the sake of the math. If those folks averaged just 2 days in jail each (the maximum penalty for a Class B misdemeanor is 6 months in jail and a $2,000 fine), then they collectively would have spent about 90 bed-years in jail!

So that's where we are, by the numbers. On September 1st, $2.5 billion in debts will be erased and hundreds of thousands of people will be eligible to get their licenses back.

For more background and/or details on license reinstatement, see FAQs from DPS and the Texas Fair Defense Project.

Progressive prosecutors as elusive as Bigfoot ... are both mythical creatures?

Do so-called "progressive prosecutors" really exist, or are they fictional beasts like Bigfoot or jackalopes?

On the June 2019 episode of the Reasonably Suspicious podcast, my co-host Amanda Marzullo and I delved into this question. I got a lot of good feedback on the segment, so let's excerpt it in hopes that a six-minute clip may be heard more widely.


For a transcript of the segment, see the blog post with the full podcast; this segment was toward the end.

Why revocations from probation and parole make up nearly half of Texas prison admissions and what to do about it

Two recent reports on supervising people in the community post-conviction deserve Grits readers' attention:

From the Texas Public Policy Foundation, Marc Levin has a 10-point agenda on parole that's more aggressive than any decarceration proposal that conservative group has promoted before.

Meanwhile, the Council of State Governments issued an analysis of the proportion of prison admissions related to revoked probation and parole terms.

Let's look at the CSG report first, since it provides the lay of the land. They have state-specific pages for each jurisdiction; here's the one for Texas.

By their calculations, 47 percent of people entering Texas prisons in 2017 were revoked either from probation or parole - 36 percent from probation, 11 percent from parole.

My first thought was to double-check their math, so here's my calculations using verifiable, public sourcing.

In Texas, according to an annual TDCJ report to the legislature, probation revocations to prison in FY 2017 totaled 23,101; of that, 11,522 were for technical violations.

In FY 2017, according to the Board of Pardons and Paroles' Annual Statistical Report, 6,555 parolees were revoked; of those, 1,043 were for technical violations.

Combined, that's 29,656 people revoked from probation and parole combined in 2017; 12,565 of those were for technical violations only.

TDCJ admitted 65,278 total people that year, according to the TDCJ Annual Statistical Report.

So, by my math, that's 45% of TDCJ admissions from probation and parole revocations, not 47%, with 19% coming from technical violations alone. (According to their methodology appendix, they had trouble coming up with data on technical probation violations, which may account for some of the disparity.)

But that's nitpicking. The authors' point was to demonstrate that nearly half of prison admissions arise from supervision revocations, not new convictions. That is certainly true, which brings us to Marc Levin's TPPF policy brief on parole.

Whereas CSG aimed to identify the scope of the problem, Levin proposes reforms to reduce unnecessary supervision and revocations.

In Mr. Levin's ideal world, prisons would begin planning for reentry soon after a person is incarcerated and make sure all necessary treatment and programming has been completed by the time they're first eligible for parole. Moreover, he would have the parole board mainly assess risk to the public going forward, emphasizing behavior while in prison and participation in programming. By contrast, in Texas, one of the most common reasons for denial of parole is "nature of the offense," which cannot ever change.

He touts a Michigan statute, in particular, which limits the reasons parole can be denied to 11, mostly public-safety oriented items. (The references in this document are a treasure trove.)

Levin wants to ensure parole conditions are manageable and adjusted based on risk level, with lower-risk people receiving less supervision. He wants prisoners to get credit for "earned time," which in Texas is optional for the parole board to recognize (this provides scant incentive for program participation, cooperation on work details, etc.). He would reduce barriers to employment for parolees and stop the use of regressive zoning practices to restrict where parolees can live. (January Advisors just did a major analysis on this topic focused on Houston.)

Levin wants to alter how parole officers are evaluated, focusing on recidivism reduction. And finally, he wants some reentry duties currently performed by the justice system to be performed by nonprofits and other entities, which incidentally is what happened recently in Colorado with its community reinvestment program.

I'm glad to see people thinking more deeply both about how to measure the community-supervision elements of mass incarceration as well as how to better utilize those tools for reducing prison populations and preventing recidivism. Taken together, these two documents reaffirm many of the findings in an analysis published last year from the Columbia University Justice Lab titled, "Too Big to Succeed" (which also has informative footnotes), that gave recommendations for cutting the size of community corrections systems in half.