Saturday, January 24, 2015

Is reticence of Nueces prosecutors to disclose evidence an institutional failure?

Grits had missed a story from earlier this month about the Nueces County DA allegedly withholding evidence in criminal cases. Reported the Corpus Christi Caller Times (Jan. 7):
The Nueces County District Attorney’s Office has shown a pattern of turning over evidence at the last minute and sometimes withholding it all together, defense attorneys testified Wednesday.

Attorneys for Trinity Ringelstein, who is serving a life sentence, argued prosecutors waited until the week before his capital murder trial to give them tapes containing more than 72 hours of phone conversations he had while in the Nueces County Jail.

Ringelstein was first arrested in 2012 on suspicion of fatally shooting Micah Seth Horn, 23, near a park in the 1000 block of Harbor Lights Drive. After a three-week trial, Ringelstein was convicted and sentenced to life in prison last year.

The law requires prosecutors to hand over evidence in a timely manner.

During the daylong hearing his attorneys sought to prove prosecutors have delayed turning over key evidence in several other felony cases.

District Attorney Mark Skurka, who did not attend the hearing, disputed the claims in a statement to the Caller-Times.

“The District Attorney’s Office provides evidence to the defense as required by law. We strongly deny these allegations,” Skurka said.
In addition to that case, "In June, then 105th District Judge Angelica Hernandez found prosecutors withheld evidence and acted in bad faith in a child endangerment case," the paper reported.

The story also pointed to whistleblower litigation by "Eric Hillman, a former Nueces County prosecutor [who is] suing the county for wrongful termination. Hillman claims his bosses instructed him not to tell the defense team he found a witness who would help a man he was prosecuting." In addition, "three other defense attorneys sat in the courtroom gallery and were ready to testify Wednesday but weren’t called to the stand for time reasons."

It's hard to understand - aside from their general lameness and historical unwillingness to discipline prosecutors - how Mr. Hillman's allegations, or Judge Hernandez's ruling, in particular, wouldn't trigger a disciplinary review by the state bar against prosecutors in the office.

Defense lawyers lost the motion at the trial court level but simply exposing such stories to disinfecting sunlight has a salutary effect.

MORE: See additional background on the Hillman case.

Friday, January 23, 2015

Senate Criminal Justice Committee: Index property crimes to inflation, expand reentry and diversion programs for mentally ill

The Texas Senate Criminal Justice Committee's interim report (pdf) to the 84th Legislature is out. Among the highlights:

"Despite recent media attention to two cases, adding intoxicated manslaughter to the list that cannot be granted probation is not necessary at this time."

The Lege should "Expand reentry programs and encourage the development of diversion programs for mentally ill offenders in order to prevent their entry into the prison system and ensure available treatment in the community."

They recommended indexing value thresholds for property offenses to adjust for inflation, a measure this blog has long advocated. In the context of state-level sentencing reform, it's particular cause for hope that Senators Joan Huffman and Charles Schwertner signed the recommendations with this item included.

Finally, they recommended "that the legislature support the enactment of a Texas Punishment and Sentencing Commission to thoroughly examine the non-traditional criminal offenses, consolidating those that meet the required elements for a criminal act into the Penal Code, while altering those that do not meet the elements to be considered a crime, to that of an administrative action or civil penalty."

See the full report for details.

RELATED: The interim report (pdf) from the House Homeland Security and Public Safety Committee is out and includes an extensive section on the Driver Responsibility surcharge, as well as the West disaster, emergency preparedness, and border security.

South Texas corruption scandal deepens, prison warden arrested, state rep implicated

Yikes! A private prison warden has been arrested in South Texas as part of an ongoing federal corruption scandal for allegedly bribing a corrupt JP to reduce bond in a case where state Rep. Terry Canales was the defense attorney. How's that for a pie in the face the first week of session? From the McAllen Monitor:
Federal agents arrested a former East Hidalgo Detention Center warden who they say had ties to a bond reduction scheme involving convicted former Hidalgo County Justice of the Peace Ismael “Melo” Ochoa.
Homeland Security Investigations agents arrested Elberto Esiquiel Bravo on Friday, as part of an investigation that claims he was an accessory after the fact in a bond reduction scheme involving Ochoa and defense attorney Terry Canales, a Democratic state representative from Edinburg, federal authorities said Tuesday.
Canales last week said he was the defense attorney for Luis Martinez-Gallegos, who was named in the criminal complaint against Sylvia San Juanita Vasquez as a defendant who had his $2.5 million bond reduced to $50,000, which allowed him to be released from the Hidalgo County Jail and deported to Mexico, allowing him to escape prosecution in the U.S.
Criminal complaints against Bravo and Vasquez — the first defendant charged federally in the case last week — do not identify Canales as being involved in the scheme. Rather, the complaints only say that a “local attorney” received a bribe alongside Ochoa, leading to his bond reduction and deportation.
Canales denies all guilt and said he only filed a routine motion for bond reduction. (See the full story for more detail from the warden's indictment.) Maybe that's the case. As Grits opined in the comments over at Breitbart News, whose editors regard this as the only topic in the world on which they find Eric Holder and the Obama Administration 100% credible, this is a "Bad look, but if he's not been charged by now he may not be. The feds have been at this for years, I doubt they'd have moved on Bravo unless a) they really had the goods, or b) their purpose is to squeeze him to implicate Canales, in which case by implication they presently have no evidence against the state rep."

Who knows? The feds could move on Canales tomorrow or their case could never make, though it's clear he's been under intense investigation. Probably the only thing that may be safely assumed at the moment is that Canales, a second-term Democrat who last session served on the House Criminal Jurisprudence Committee, enters the session politically wounded and personally distracted. The folks running that South Texas federal corruption probe are serious people who already sport quite a few politicians' heads on their trophy wall. Lord knows, guilty or innocent, if I were him I'd be nervous.

Dumb dog, why are you following me? SCOTUS to decide if cops can prolong traffic stop for a dog sniff

'You're the most presumin' dog that a human could know'
"[O]ne of the most shared experiences in our national culture is being stopped by the police while driving," wrote Rory Little at SCOTUSBlog, in an excellent summary and preview of oral arguments in Rodriguez v. United States, heard yesterday, which aims to decide whether a traffic stop may be prolonged without suspicion for eight minutes so a drug dog can be brought to the scene for a sniff.

Grits has long considered the nexus of issues surrounding drug-dog sniffs to be perhaps the most schizophrenic area of constitutional law: The Court has frustratingly insisted that dog sniffs aren't a "search" at your car on the side of the road but they are a search on the porch in front of your house. As search tech advances - there are numerous sensors that could mimic the dog's at-a-distance non-search search - the potential negative consequences from this outcome-driven approach become more severe. This case would be an excellent opportunity to bring the practice to heel. (Ba-dum-bum; insert mandatory audience groan here.)

Little's two pieces provide an excellent snapshot, ably presenting the legal posture of this pick-em case and its predecessors; give them a read. Here's the transcript from oral argument. MORE: See coverage from the Courthouse News Service and Bloomberg News. Reason highlighted this tidbit from Justice Sotomayor.

Thursday, January 22, 2015

Pretrial detention, not 'growth,' driving overincarceration at Nueces County Jail

Here's another Texas jail building proposal - this time out of Nueces County (Corpus Christi) - in which officials are claiming population growth is driving overincarceration. Reported KRIS-TV:
This is a critical time for the Nueces County Jail because it's now at 93% capacity.

"The jail has been overcrowded a number of years. When I say overcrowded we have almost reached our capacity," said Nueces County Sheriff Jim Kaelin.

The jail can hold 1,068 inmates. It's limited by law not to exceed 90-percent capacity in case more space is needed for problem inmates or if maintenance issue surface.

"We are 20 years behind the growth of the city and that is a long time for everything else to grow around you and for your jail not to grow," said Kaelin.
Once again, I've no doubt the jail is overcrowded, but let us not suffer the absurd declaration that it's overcrowded because "We are 20 years behind the growth of the city." Instead, let's review the facts.

In July of 1995, the Nueces County jail population stood at 892, of which 222 (25 percent) were being detained pretrial. In July 2014, the total population stood at 1,042, with 645 (62 percent) of those being detained pretrial. (See historical reports since 1992 here.) By comparison, the total 1995 population in Nueces County was 310,435, and 352,107 in 2013, or a 13.4 percent increase, while the jail population grew at a slightly greater rate - 16.8 percent.

Looking more closely, though, the 1995 jail population figure is artificially inflated because the jail was full back then of convicted offenders awaiting transfer to TDCJ, an issue that's been largely resolved in the 21st century since the state-prison system tripled in size. There were 334 convicted felons in Nueces awaiting transfer to prison on July 1, 1995, and only 132 in July 2014. Adjusted to account for those, the remaining jail population grew more than 50 percent.

Virtually all of the difference in the Nueces County jail population is accounted for by increased pretrial detention, which as we've discussed vis a vis Kerr County is a policy decision by judges and prosecutors, not a function of "growth." And keep in mind this is a period when crime rates dramatically declined.

Finally, the Sheriff speculated that extra jail space "could be paid for in part by money that comes from housing federal inmates." Any fiction that the jail will pay for itself in the current, over-saturated Texas incarceration market must be snuffed: Ask voters in Lubbock or Waco how that story turns out!

Perhaps, when it's debated publicly, Nueces County voters will support the policy decision to incarcerate so many more people pretrial, including hundreds of misdemeanor defendants. Or maybe they'll think scarce jail resources should be deployed more frugally. But portraying the need as stemming from simple population growth misrepresents the demand for more beds, which results from choices by elected officials, not some cosmic inevitability because there are sooo many more criminals these days.

Kerr County Sheriff defends jail bond vote; Grits responds

After Grits critiqued the numbers behind the proposed Kerr County jail bond vote in May, Sheriff Rusty Hierholzer sent around an email attempting to justify the proposed new debt and accompanying higher taxes. His direction "please forward to all" meant it eventually found its way to me, so thanks to the thoughtful reader who passed it along. Find his letter below the jump, followed by Grits' reactions.

Tuesday, January 20, 2015

New Juvenile Justice committee in Texas House; other rules changes

Grits finally had a moment to go through this session's rules for the Texas House of Representatives, as approved in HR 4. (Read them here for yourself.) Here are some changes which may interest Grits readers:

Juvenile justice was taken out of the Corrections Committee's domain and given its own committee: Juvenile Justice and Family Matters, which will have seven members. (Chairs and members haven't been named yet.) As a practical matter this was probably a good move: The Corrections Committee has a big enough task with oversight of the adult system to delve into juvenile stuff in depth during the brief 140 day session. But there may also be a political angle to the division given that Sen. John Whitmire and Tony Fabelo are openly talking about shuttering more youth prisons. The appointment of the chairman may tell a lot about whether the Speaker agrees with Whitmire regarding further downsizing at the Texas Juvenile Justice Department.

The House Criminal Jurisprudence Committee will have seven instead of nine members. I liked it with nine. C'est la vie.

Bill analyses must henceforth include "a statement indicating whether or not the bill or resolution expressly creates a criminal offense, expressly increases the punishment for an existing criminal offense or category of offenses, or expressly changes the eligibility of a person for community supervision, parole, or mandatory supervision."

Bills that create new crimes, increase penalties, change probation or parole eligibility must now say so in the bill caption. IMO they should have gone further by requiring those bills to have a fiscal note, meaning they'd have to be accounted for in the budget. In the past, the Legislative Budget Board insisted nearly all bills increasing penalties or creating new crimes would have no significant fiscal impact on the state, though the cumulative impact off passing dozens of new crimes and "enhancements" each session has been enormous.

This will be helpful: The Parliamentarian must now give written explanations for rulings on points of order, including cites to precedent. The whys and wherefores of point of order denials have long been a mystery - maybe this will promote more consistency.

It's regrettable that this change was necessary: "The committee coordinator may exclude from the committee coordinator's office or refuse to interact with a member or a member's staff if the member or member's staff engages in abusive, harassing, or threatening behavior." Wouldn't you love to learn the backstory behind that new rule?

The General Investigative and Ethics Committee was given additional authority including the power to propose articles of impeachment and to investigate misconduct by political appointees at agencies. Given what's happened recently at the Department of State Health Services and the Legislature's run ins with UT regent Wallace Hall, this could be a highly significant development.

The Technology Committee was eliminated and science and tech issues were handed to the renamed Government Transparency and Operation Committee. The language describing their turf is theoretically broad enough to include forensic science but DPS crime labs and the Forensic Science Commission remain under the jurisdiction of the Homeland Security and Public Safety Committee, whose jurisdiction didn't change.

The rules further limited access to media credentials and created a method for legislators who want to challenge a reporter's credentials if they engaged in lobbying or advocacy on the floor. I've never heard of that being an issue, so unless there was some episode last session of which I'm unaware, this seems like a solution looking for a problem. UPDATE: A reader reminds me the media credential issue was in response to Michael Quinn Sullivan, FWIW.

Monday, January 19, 2015

Might declining oil prices boost TDCJ employment, and for how long?

The precipitous drop in oil prices over the last couple months has the energy industry contemplating layoffs while delighted consumers pay half the price at the pump for gasoline as they did just a few months ago. There's been much speculation about what falling oil prices may mean for the Texas economy and the viability of capital-intensive fracking operations (not to mention the international geopolitical implications of low oil prices, which are immense).

It occurred to me from reading the business press on this topic that it's possible suspension of high-cost production could offer a silver lining for rural Texas prisons which have been competing, unsuccessfully, for prison guards against much higher paying oil field jobs. If low oil prices force significant layoffs (and producers are already taking rigs offline), then perhaps some of those workers will now seek employment at TDCJ, providing short-term relief for dangerously understaffed rural prisons.

Of course, if and when oil prices rise again - which will likely have more to do with international geopolitics than any strategy by domestic producers or Texas political leaders - TDCJ will be right back where it started, leaching large numbers employees to the oil and gas industry. Oil field work is much more dangerous than being a prison guard (or a police officer, for that matter) but pays more and doesn't involve interacting with criminals or butting heads with an ossified and anachronistic bureaucracy. When oilfield jobs are plentiful, they're much more attractive than working in a prison. In the near term, though, with fewer such jobs in the offing, Grits expects TDCJ's employment numbers to receive a positive boost.

If that happens, there will likely be legislators suggesting the state de-prioritize TDCJ's proposed staff raises, which are aimed at enticing more employees to sign up as guards and to stay on the job once they've been trained and gotten a taste of working in a prison. With Texas on a two-year budget cycle, deferring those raises would be short-sighted, especially when the state can afford them, having just received an especially sanguine revenue estimate.

The state should use this short-term respite to plan for the near inevitability of oil prices rising again, improving pay for prison staff and closing the most understaffed units entirely. When oil prices go back up, the effects on prison employment will likely be rapid and brutal. Legislators and the agency may have been granted temporary relief on this front thanks to rapid deflationary pressure on oil prices. But that doesn't acquit them from making tough choices. It just means they'll have no excuses if and when prices rise again and the agency faces another, perhaps even more severe understaffing crisis than it faces today.

Sunday, January 18, 2015

Blackburn on flawed forensics, indigent defense

My friend and former employer Jeff Blackburn of the Innocence Project of Texas stopped by today for a 20-minute chat on the future of innocence work, flawed forensics, recording police interrogations, and indigent defense, recorded and uploaded here (wav) for anyone interested. I'm afraid Grits skimped a bit on production values this go round - no bells and whistles, just an interview - but regular readers should find the content interesting.

Corrections Committee: Expand rehabilitation and education programs at TDCJ

The Texas House Corrections Committee this week put out its interim report (pdf) covering the following topics:
  • Oversight of TDCJ, the Board of Pardons and Paroles, and TJJD
  • Review of mental health services in the justice system
  • Evaluate 'pay for performance' model for privatizing juvenile justice
  • School discipline and the criminal justice system
There's a decent overview of operations of monitored agencies, including a good discussion of administrative segregation (solitary confinement) in adult prisons. Notable recommendations on the adult side (just a few excerpts, there were quite a few more) included:
  • The legislature and the Texas Department of Criminal Justice should look for more ways to focus a larger component of our correctional budget on rehabilitative investments, as opposed to simply inmate confinement.
  • The legislature and the Texas Department of Criminal Justice should consider ways to expand inmate educational and vocational training programs within the prison system as a core component of effectively rehabilitating offenders.
  • The Texas Department of Criminal Justice should explore new and innovative ways to increase access to prisoner visitation programs in order to fully prepare inmates for the re-entry process, including the potential use of teleconferencing as a visitation option.
Some of the recommendations regarding TJJD seemed oblivious to suggestions to further radically downsize or eliminate youth prison facilities. The report appears to assume they won't just continue to operate but may have programming bolstered - makes you wonder if the House and Senate are on the same page on that question.

On the mental health front, the suggestions seemed tepid and inadequate given the problems faced by the state in that arena. And the school discipline charge didn't result in significant recommendations.

These are just casual first impressions from initially skimming the document. Read the full thing (pdf) for more detail.

Thursday, January 15, 2015

'DNA record fee' deemed unconstitutional because funds hijacked for other uses

From her perch over at the Harris County Public Defender, Jani Maselli-Wood continues to peck away at the litany of court costs assessed against criminal defendants. Texas Lawyer has a report (Jan. 12) on her latest exploits:
Jani Maselli Wood, a public defender in Houston who is waging an appeals court battle over the constitutionality of court costs, recently won a favorable majority opinion knocking out two court costs levied against her client.

On Dec. 30, a panel of the First Texas Court of Appeals in Houston modified criminal convictions against Wood's client Osmin Peraza to delete a $250 "DNA record fee" from the judgments from each conviction on the ground that it is an unconstitutional tax, and also deleted a $50 "sheriff's fee" for "serving capias" because there is no basis in the record to support the charge. The court otherwise affirmed the judgment against Peraza, overruling Peraza's contention that the trial court erred when denying his motion to withdraw his guilty pleas to the two charges of aggravated sexual assault.

Wood, who joined the Harris County Public Defender's Office in 2011, was selected in 2014 as one of Texas Lawyer's Winning Women for her work challenging the constitutionality of court costs. She wants the money that criminal defendants pay in court costs to directly benefit the court system.

The First Court panel deciding Peraza v. Texas consisted of Justice Terry Jennings and former Justice Jim Sharp, who lost a reelection bid in November 2014. In a concurring and dissenting opinion, Justice Harvey Brown agreed with the majority that the trial court did not abuse its discretion in denying Peraza's motion to withdraw his guilty pleas and that the "unsupported" $50 sheriff's fee should be struck. However, Brown disagreed that the DNA record fee is unconstitutional.

Wood said she was gratified by the court's opinion on the court cost issues.

"It's the first time they have ever held it's unconstitutional under the separation of powers doctrine, that the courts are not tax collectors," Wood said. "It was the first time they've gone along with my theory that you can't fund general government with court costs."
The $250 "DNA record fee" in particular was deemed unconstitutional because the state doesn't use it for what they say they're taking it for. Instead, money from the DNA record fee is split between the state highway fund and the general fund of the "criminal justice planning account," neither of which are "necessary nor incidental to the trial of a criminal case," according to the First Court ruling.

If courts begin deciding it's unconstitutional to assess fees for one purpose and use the money for another, the entire house of cards underlying Texas' budget edifice could quickly tumble, with implications far beyond just court costs. But that's speculation; for now this is a single Court of Appeals adopting this view on two particular fees. Jani's right to celebrate the win (congratulations!) but there are lots of vested interests out there with a stake in keeping that house of cards upright. And they'll all probably take a shot at her before her victory is ever extended statewide. Things get serious quickly when you start messing with people's money.

Lege-commissioned report suggests indigent defense caseload guidelines

Pursuant to HB 1318 passed last session, the Texas Indigent Defense Commission commissioned a study (pdf) of indigent defense caseloads by the Public Policy Research Institute at Texas A&M. Analyzing data from several sources, they concluded:
for the delivery of reasonably competent and effective representation attorneys should carry an annual full-time equivalent caseload of no more than the following:
  • 236 Class B Misdemeanors
  • 216 Class A Misdemeanors
  • 175 State Jail Felonies
  • 144 Third Degree Felonies
  • 105 Second Degree Felonies
  • 77 First Degree Felonies
As I read this, attorneys whose caseload includes a variety of case types could weight them to see whether their annual total exceeds the guidelines. E.g., for somebody handling 140 Class B DWIs, 25 third degree felonies, ten second degree felonies, and five first degree felony cases in a calendar year, the calculation would run:
140/236 + 25/144 +10/105 +5/77 =  .927
Using this method, an attorney would fall under the guideline maximum if this combined ratio is less than one. So, with 180 cases, that person would come in under the max caseload recommendation, even though they handled more than the 150 cases recommended by the American Bar Association in its longstanding guidelines.

By contrast, another attorney may take fewer DWIs but focus more on drug possession. Say this person has 28 DWI and pot cases combined (Class Bs), 30 clients accused of possessing less than a gram of a controlled substance (state jail felony), 30 clients with third degree felonies, 20 facing second degree felony charges and 30 charged with first degree felonies. In their case, the calculation would be:
28/236 + 30/177 + 30/144 + 20/105 + 30/77 = 1.076
So that lawyer's caseload would exceed the recommended guidelines, even though at 138 cases it would fall under the old ABA standard of 150. More serious cases typically require more time so it makes sense to weight different types of cases in this fashion. (That said, I have no way to judge whether these are the correct weights; they don't seem too far off, but there a numerous assumptions embedded within those figures.)

Regardless, counties should initiate reviews internally to see how many attorneys in their system are exceeding these guidelines - I bet there are some in most every jurisdiction - and consider means to distribute cases more broadly and/or support a public defender office to stabilize the load.

It would also be interesting to see someone - maybe the Texas Indigent Defense Commission, which has access to the data - take indigent case pay rates for different counties and apply them to these caseload guidelines to see what a wheel attorney limited to such a caseload might make. The report declared that statewide Texas attorneys receive "current average compensation of $608 per non-capital felony and $198 per misdemeanor" for indigent representation. But you'd need data broken out in more detail to figure out pay scales under the suggested guidelines.

There's lots of detail in this 114-page report (pdf) and Grits may come back to it later, but I wanted to at least get the link out there for folks who're interested.

MORE: From the Texas Fair Defense Project, which noted that "According to data collected by TIDC for 2014, appointed attorneys or public defenders in all five of Texas’s most populous counties (Harris, Dallas, Tarrant, Bexar and Travis counties) had caseloads at least two times higher than the caseload limits published by the Commission today."

AND MORE: From the Houston Chronicle's Brian Rogers (Jan. 15), who included this passage on the report's legislative implications:
"Texas has a problem with attorneys handling so many criminal cases that they cannot provide effective representation to their indigent clients," said Senator Rodney Ellis (D-Houston). "Taking over 1,000 appointed cases in a year, for example, makes effective representation nearly impossible."

Ellis has introduced a bill this session that would force the judges who appoint lawyers to indigent cases to abide by guidelines limiting how many cases the attorney is handling.

"I applaud the work of the commission," Ellis said. "It's time for us to get down to the serious work of implementing these guidelines."
Rogers concluded the story with the ominous caveat that, "Critics of lower caseloads note that increased time and investigation means the county pays more per case." Maybe. Or maybe they should have been doing that investigation anyway and should now begin doing the job they're paid for - zealous representation and all that entails. (See more on performance guidelines for non-capital defense representation.) Perhaps those failures explain why clients with appointed counsel tend to get worse outcomes, especially at sentencing, compared to clients represented by public defenders or retained counsel.

Once we see some of the data this post asked for, we'll be able to better judge whether these caseloads imply rates for indigent representation need to be raised. Maybe so. Or, perhaps lawyers who rely solely on indigent cases for their income simply should make less money than, for example, lawyers in Houston who bill the county for 600-800 cases per year. This study doesn't tell us anything about appropriate pay rates, per se. It describes the maximum caseload for which a lawyer can perform basic due diligence on the cases without being dubbed ineffective, which is a low bar, indeed. The economics of indigent criminal defense - with privatized supply but a socialized single payer system and low information about attorney quality on the part of both the client and the payer - are a separate matter from what qualifies as a lawyer's due diligence in a criminal case.

Grits thinks of these caseload guidelines, like the state bar's performance guidelines, as analagous to the advice to say the ABCs in your head while you wash your hands. Doing so makes you wash them more thoroughly, keeping your hands under the water for just a few seconds longer than most folks might do instinctively. That's what these guidelines are about. Yes, you could plea the case without any investigation and make more money. And people like making money so there's an incentive to do that. But you're an attorney, not a vending machine. Your job is to zealously represent your client, not methodically shove them over the edge of a precipice whenever the state puts a quarter in your slot.

Wednesday, January 14, 2015

Kerr County voters to consider 75% jail capacity expansion in May

For a while, Texas' jail building spree seemed to recede, though there are still a few projects active. After all, as of Nov. 1, 2014 Texas jails had a roughly 42 percent vacancy rate, with 67,157 out of 95,309 beds filled statewide. So it's worth mentioning that Kerr County in May will hold the first significant Texas jail bond vote in several election cycles in order to expand local jail capacity by 75 percent. Reported Zeke MacCormack at the Express-News (Jan. 12):
Kerr County Commissioners signaled their intent Monday to seek voter approval in May for a $15 million bond issue to expand the county’s 192-bed jail, where periodic overcrowding has long been a problem.

Plans call for a 144-bed wing to be built on the current jail’s west side, in addition to expanding existing kitchen and laundry facilities, adding restrooms in the sheriff’s office lobby and creating a larger area for its communications staff.

The cost estimate of $14.8 million includes $12.5 million for construction, $990,000 in professional fees, $750,000 for contingencies and $400,000 for equipment and furniture.

If voters approve the project, Wayne Gondeck of DRG Architects said, its actual cost won’t be known until bids are sought next fall. The new jail could open in 2018.
The bonds would "add about 1.75 cents per $100 to the county’s property tax rate" for twenty years assuming property values rise as much as projected over time, MacCormack reported, though one wonders how they can predict that if the jail's "actual cost won't be known until bids are sought." Regardless, as of December 1, the county reported to the Commission on Jail Standards that 129 of the county's 192 beds were filled, down from 160 on July 1, 2014.

Kerr County's incarceration rate is higher than the statewide average in an era of declining crime. It seems highly likely new jail construction could be avoided or at least delayed if local officials better used tools available to them, from judges issuing more personal bonds to prosecutors facilitating pretrial diversion to police officers and deputies issuing citations, as authorized under law, for certain low-level Class B misdemeanors.

Kerr County had a population of just more than 40,000 in 1995 and a little less than 50,000 in 2013, according to the census, growing by roughly a quarter over those two decades. By comparison, the Kerr County jail population more than doubled between August 1995 (69) and August 2015 (157). So jail population growth isn't a function of the county's population growth, it's caused by decisions mainly by local prosecutors and judges to use the jail more aggressively than in the past for pretrial detention. In 1995, upward pressure on the jail population came more from detaining convicted felons awaiting transfer to TDCJ than felons awaiting trial; by 2015 that dynamic had flipped. Pretrial detainees went from 25 to 69 percent of a twice-as-large jail population.

Jail construction, at its root, is rarely a conservative or liberal issue. Consider: Is expanded pretrial detention liberal or conservative? While people think of conservatives as "tough on crime," in a sense there's nothing more "Big Government" than a jail, which is an institution designed to exercise total control over people's lives. Meanwhile, expanded pretrial detention empowers the government in plea bargains. And unnecessary jail expansion is frequently a major driver of local tax hikes, as voters in McLennan County could well attest.

Once a jail is built, it can be expensive to staff the extra space, creating ongoing budget burdens beyond just paying back the debt. For that reason, jails can become controversial among taxpayers, even if every Sheriff seems to want to leave behind their name on a new wing when they go. One recalls in Tyler voters rejected four different jail bond proposals on three different ballots, with competing "Tea Party" groups taking different sides, before county officials received the nod for radically scaled back plans.

Who knows if that kind of opposition will arise in smaller Kerr County? At a minimum, Grits hopes locals subject the proposal to close scrutiny and reject any entrepreneurial scheme that assumes future contract revenues (no hint of that from the press coverage). But more than that, Kerr County voters should take the opportunity to insist that county commissioners and the sheriff, as well as local prosecutors and the judiciary, do all they can to reduce unnecessary jail use, supporting staff and programming for community supervision as ardently as brick and mortar jail cells. Arguably, as in Smith and Harris counties, perhaps the best way voters can convey that message is to reject jail bonds and demand more emphasis on diversion programming before approving new construction debt.

Tuesday, January 13, 2015

Will PREA spur Texas Lege to raise age of criminal culpability?

Editorial writers at the SA Express-News think (Jan. 12) that pressure to comply with the Prison Rape Elimination Act may spur the Texas Legislature to raise the age at which criminal defendants may be charged as adults for their crimes. The staff editorial concluded:
Since 18 is the age of majority for Texans in other aspects — deemed mature enough to marry, vote and enlist in military service on their own, for instance — it makes little sense to view a 17-year-old as mature enough to weather adult trial, sentencing and imprisonment.

This is exceedingly arbitrary.

Raising this threshold would coincide with Texas’ need to comply with the Prison Rape Elimination Act, or PREA, which includes a requirement that those under 18 be separated from the adult prison population.

This requirement does not occur in a vacuum. Youths younger than 18 are abused sexually and physically more often than those older, University of Texas Professor Michele Deitch told McGaughy. And they are 36 times more likely to commit suicide.

Gov. Rick Perry has resisted complying with PREA. That must change in the new administration. We note, however, that the 14 youths who were 17 in the Bexar County Jail last week were separated from those 18 and older.

Texas can rightly crow about its progress on criminal justice. It should add raising the age of an adult, when it comes to being prosecuted for crimes, to 18.

Monday, January 12, 2015

Squeeze in a visit? Weekly visitation hours at Harris jail 1/4 those in Tarrant

Here are a few relevant data on inmate visitation from Houston and around the state as reported by James Pinkerton at the Houston Chronicle (Jan. 7)
For years, visits have been a frustrating experience at the Harris County Jail, where visitation policies are among the most restrictive of the state's five largest county jails. And while Harris County's jail system is the largest in Texas, with an average daily population of 8,700, it has lagged in adopting technology to improve visitation that other counties have embraced, including video visitation for inmates.

"I have to take three buses to get over here to see my husband, and they give me 15 minutes and I can't hear half of what he says," said Lawhern, who lives in Pasadena and tries to visit Trevino twice a week. Lawhern said that because she often can't hear what her husband said, she must follow up her visits with a collect phone call from her husband, yet another expense for a woman who is simply trying to support her spouse.
On the case for maximizing visitation opportunities:
Ohio prison officials, in a 1999 study, noted that visitation not only helps efforts to rehabilitate inmates while they are locked up, but provides a bigger benefit after they are released.

"The prisoner who has maintained contact with supportive individuals such as family and friends has a 'safety net' when he or she returns to the community," wrote Reginald Wilkinson, director of the Ohio State prison system. "Family and friends provide a feeling of belonging to a group. They often help released offenders seek and find employment and conduct themselves in a positive, constructive manner after release."

In 2011, the Minnesota Department of Corrections published an exhaustive study concluding that "prison visitation can significantly improve the transition offenders make from the institution to the community." The study noted that any visit reduced, by 13 percent, the risk of a new felony conviction and dropped by 25 percent the risk of violating release conditions. Visits from clergy, fathers, brothers and sisters and in-laws were the most beneficial to the inmate's future conduct after release, the study found.
In this case, it was Democratic Sheriff Adrian Garcia who reduced visitation hours in Harris County to among the  lowest among large Texas jurisdictions:
Garcia cut visitation to the county jail in 2011 - from seven to four days - a move the sheriff said at the time would save $1.3 million annually in overtime pay for detention officers as the county faced a budgetary crisis. Asked why the visitation was not restored as county finances improved, Director of Public Affairs Alan Bernstein said there have been no recent complaints from the public.

Civil rights advocate Amin Alehashem, staff attorney and regional director for the Texas Civil Rights Project-Houston, expressed concern over limited jail visits.
Of course, they have had longstanding complaints about failures of phone systems at the visitation center, according to the article, and they've yet to fix those, either. So quien sabe?

Regardless, visitation is handled differently in different Texas counties, according to Pinkerton's first-cut survey:
Harris County allows inmates four 20-minute visits each week, to take place during the 21 hours of visitation offered over four days.

In contrast, Tarrant County Jail inmates can receive up to two visits a day in Fort Worth lockups, where visitation is allowed seven days a week from 9 in the morning to 9 at night, or a total of 84 hours a week. The Bexar County Jail also limits visits to four days, but offers a window of 30 hours of overall visiting time during the week.

Since 1975, Texas law has required that jails provide a minimum visitation of at least two visits - one during a weekday evening and one on weekends - and several mid-sized counties, including the Neuces County Jail in Corpus Christi and El Paso jails, have limited visits to two days a week.
Toward the end, Pinkerton quoted a Travis County Sheriff official waxing favorably about video visitation without mentioning any of the controversy it generated, either from listening in on conversations with defense counsel or the bait-and-switch at the commissioners court which was originally told face-to-face visits would continue. Grits upbraided him mildly in the comments for not fact checking those assertions ("Google is your friend"). Otherwise, the story was a good update on an important, rapidly emerging issue.

Saturday, January 10, 2015

Texas police misconduct roundup

Grits makes no comprehensive effort to track police misconduct around the state but can't help but notice Texas has witnessed quite a few extreme and remarkable cases over the last month or so. Here are a few that jumped out:
  • A Dallas police officer who was accused last month of sexual assaulting a woman in his squad car killed himself yesterday.
  • A 23-year old cop in Victoria was fired after dashcam video of him tackling and tasing a 76-year old man went viral.
  • From the Express-News (Jan. 9), "Late Thursday, San Antonio Police Department Officer Konrad Chatys was booked on allegations he stole items from a couple while on duty. On Friday afternoon, Billy Torres, 40, a Bexar County Sheriff’s Office deputy, was arrested on a charge of burglary of a building."
  • In Laredo, "A South Texas sheriff's deputy and her brother have been charged with conspiracy in an indictment accusing them of drug trafficking."
  • It was reported last month that an SAPD officer was fired for dereliction of duty last August after dashcam video showed her failing to respond to some two dozen calls, including driving away from a shooting to which she should have responded.  
  • Two Corpus Christi police officers were disciplined for excessive force after dashcam video caught them slamming a handcuffed murder suspect's head into the side of a squad car. One officer resigned, the other has been suspended without pay.
  • In December, "A police officer in Cedar Park [was] fired for being dishonest during an investigation into his friendship with a man suspected of multiple sexual assaults." As summarized at Policemisconduct.net, “According to the news report, the police department said that not only did they fire the officer for being dishonest, but because he accessed police databases about the suspect without legal reason to do so. The suspect has a history of sexual assault and is characterized in other reports as a potential 'serial rapist.'”
  • In Houston (Jan. 8) "Bungled murder investigations by the Houston Police Department not only allowed killers to walk free, but may harm the ability of detectives to solve other slayings, warns an independent arbitrator," who concluded "the evidence demonstrated that it's allowed murderers to remain on the streets; caused unnecessary frustration and heartache to the families of victims; and led Houston's citizens to question the department's integrity."
  • In Round Rock (Dec. 22) "A Round Rock man has sued the city’s police department in federal court and accused officers of using excessive force during a 2012 incident." Cops showed up at a domestic disturbance, went to the wrong house and allegedly kicked and beat the innocent homeowner before releasing him. The man was acquitted at trial of interfering with a police investigation. "The suit names 10 officers as defendants."
  • A woman has sued DPS and four state troopers over a 2013 roadside cavity search.
  • Last month, Joe Edward Cummings, a former jailer and patrol officer with the Denton County Sheriff's Office was arrested on child pornography charges.
  • A 22-year veteran at the Brownsville PD was arrested on theft and forgery charges (Dec. 22). 
  • A Harlingen PD officer was indicted in December for money laundering
  • A former reserve officer with the Bryan police department was charged with possessing child pornography
  • In Fort Worth, a "police officer has been fired for allegedly failing to show up at a court for an aggravated kidnapping trial and giving conflicting information about his role in the case." Prosecutors did not want Officer Royce Brown "to testify in court after learning that he had a prior suspension from the department for untruthfulness."
  • In El Paso, "A young man left a quadriplegic when he was shot by an off-duty El Paso police officer in 2010 has died." The officer who shot him was indicted by a grand jury but remains on duty with charges pending.
While disheartening to read this litany of ignominious incidents, it's at least good to see dashcam video contributing to greater accountability in several of these cases, a development that IMO argues for expanding the use of cameras both to police bodycams and recording custodial interrogations at the police station. Most Texas departments got dashcams via legislation state Sen. Royce West carried back in 2003, which included a voter-approved $18 million bond issue for police to purchase equipment, and West has filed legislation this session to authorize grants for police bodycams.

Though some of these are new developments in old cases, it's unusual to see this many serious police misconduct stories crop up in Texas news outlets in so short a span. I wonder if that's because of an actual uptick in incidents or because, in the wake of renewed national focus on police misconduct, the media are simply more likely to cover such episodes than before events in Ferguson and Staten Island?

Friday, January 09, 2015

Stand up to union bullying over budget busting SA police contract

It's the age-old question: Best to appease bullies or stand up to them?

In San Antonio, the local police union has launched attack ads against the city manager over stalled contract negotiations: the city can't keep up with pay and benefits without raising taxes and/or cutting other, essential city services and, predictably, the union won't budge an inch. Mayoral candidate and current state Rep. Mike Villareal wrote the other day that, "The San Antonio Police Officers Association paid for ads that stirred public anger over City Manager Sheryl Sculley’s compensation package — a red herring. Questioning the city manager’s salary is legitimate; pretending that it’s relevant to negotiating a new contract for first responders is not."

Remarkably, "Currently, the city estimates 67 percent of the city’s general fund goes to support public safety," wrote Villareal, which is "crowding out all other services, such as street repair, parks and libraries."

Former mayor Henry Cisneros recently ascended to head the local Chamber of Commerce. In response to the attack ads, that group began running (by comparison, mild) response ads defending the city manager and calling for fiscal restraint on police pay and benefits. Reported the Express-News (Jan. 5):
Cisneros also said the chamber is sponsoring 30- and 60-second radio advertisements and publishing an ad in the Thursday edition of the San Antonio Express-News that calls on both sides to rekindle talks. The radio ads say there is “deep respect” here for public safety personnel and that San Antonio has one of the best city managers in the country. Though the ads don’t mention her by name, they say City Manager Sheryl Sculley has put the city on a prudent fiscal course.

Through the ads, the chamber says public safety personnel need to share in the rising costs of health care, that the city needs to maintain the cost of public safety at “fiscally responsible levels” and that extraneous benefits for sworn personnel — from tuition reimbursements to a legal fund — that are outside “the norm” need to be curtailed.
Officers currently are working without a contract and the city has sued to invalidate an "evergreen" clause that keeps the old terms in place for ten years if they can't come to a new agreement. The union says they won't rejoin negotiations unless the city drops the suit.

While some council members have suggested cratering on the suit (politicians fear campaign ads the way two year olds fear monsters under the bed), quite frankly I'd like to see the lawsuit go forward just to find out an answer to the question. If a politically powerful police union convinces a city council to approve an irresponsible contract that causes the city's budget to balloon (Austin is in the same boat), that sort of evergreen clause means future councils can't change it even when the contract expires. And ten years is far longer than city council terms so, in essence, it prevents city councils from governing if they cannot influence 2/3 of the city budget for their entire terms! Even if the suit were dropped, the city should insist there's no such provision in any future contract, ever.

OTOH, while it's fine to call for a return to the negotiating table, if the city wins the lawsuit there's also just the option of setting salaries and benefits without one, as happens routinely in the overwhelming majority of Texas police departments.

In recent years there's been a major effort to confront bullying in schools. But bullies don't stop when you just hand over your lunch money, they come back the next day for more. Most of us learn those lessons on the playground and the city council in SA would do well to remember them today.

Thursday, January 08, 2015

Are Texas youth prisons now small enough to drown in a bath tub?

Grover Norquist famously suggested he wanted government downsized to the point where it could be drowned in the bath tub. Remarkably, that may end up being exactly what happens at the Texas Juvenile Justice Department.

At the Houston Chronicle, Mike Ward reported (Jan. 7) from the Texas Public Policy Foundation legislative conference this week that, "After years of reforms in Texas' juvenile justice system, officials now appear headed toward the next big step: further downsizing the system of state-run lockups or even junking it altogether." The suggestion is to double down on the trend since 2007 of punishing and/or rehabilitating more juvenile felons at the local level. Notably, juvenile crime dropped precipitously during this period while the juvenile incarceration rate plummeted, calling into question any direct link between incarcerating juveniles and reducing the crime rate:
Even as Texas was reforming its juvenile justice system in recent years, the number of youths targeted for probation programs and incarceration has declined by 31 percent in six years, officials said. Fabelo said that is part of a national trend: Florida's juvenile offender numbers have declined by 35 percent, California by 48 percent.

While the state-run youth corrections system held more than 4,200 offenders seven years ago, the number is now down to about 1,000 in five lockups.
That California and Florida saw even bigger juvenile crime drops tells you this is a result of larger crime reduction trends, not necessarily any specific Texas policies. But it does present an opportunity to shutter more and perhaps even all the state's youth prisons.
"That's where it's heading, yes, to counties keeping more youths in local programs, even some of the ones who are in state custody now, and to more outcome-based programs," said Tony Fabelo, a national criminal justice expert overseeing the national study by the Council of State Governments.
Citing statistics from the soon-to-be-released report that tracked more than 220,000 juvenile offenders for up to five years, Fabelo said Texas spent nearly $134,000 a year per youth held in a state juvenile lockup in 2012.
"In 2014, the 800 youth who were committed to (state lockups) cost $162 million, enough to educate almost 20,000 students for a year," he said, noting that statistics show 85 percent of the incarcerated youths are arrested again within five years - and 54 percent of those are sent to adult prisons.
"Fifty-seven percent of the population (in state youth lockups) are adults" aged 17 or 18, most of them locked up for serious felony crimes, he said. "That says a lot about why changes are needed."
Grits cautiously supports further downsizing, especially if the money follows the kids downstream. Long-time readers will recall that a "blue-ribbon panel" created by the Legislature after the 2007 sex scandals recommended (pdf) "using a regionalized system of care that supports the use of small facilities, that admits youth to TYC using research-based risk assessment and classification, and that provides specialized treatment for youth and families." If that's where this ends up, then better late than never.

One caution: I for one don't have a good sense of what exactly is happening with kids diverted from state facilities in recent years and there don't seem to be good benchmarks to let us know whether the locals are generating better outcomes than the state on education, recidivism, protecting kids from predators (whether staff or other inmates), etc.. For example, there's no independent entity comparable to the TJJD Ombudsman to whom kids in county detention can bring problems or from whom they can seek redress. There's a chance that the big-picture juvenile crime decline - which again, I don't think was caused by Texas-specific policies - could be masking poor outcomes. State institutions have been studied nigh unto death - and perhaps Fabelo's new study will be the fatal blow - but it's not clear to me we can say that the county-run lockups are superior, just that they're a) cheaper and b) out of sight, out of mind.

Wednesday, January 07, 2015

Invested: Three new judges and other odds and ends

Congratulations to new Texas Court of Criminal Appeals Judges Bert Richardson, Kevin Yeary and David Newell, whose investiture your correspondent attended this morning at the capitol. Good luck, gentlemen. Make us proud. And here's wishing the outgoing judges Cathy Cochran, Tom Price and Paul Womack all the best as they re-enter private life.

In the meantime, while I'm focused away from the blog today, here are several unrelated items which deserve Grits readers attention.

Tuesday, January 06, 2015

How civil rights could become a GOP wedge issue

Chris Ladd at the GOP Lifer blog made a smart and interesting case for Republicans to seize the political opportunity presented by the national uproar over black youth killed by police, arguing that:
Republicans are being handed the kind of wedge issue that comes along once in a generation and they are utterly oblivious to the gift. The last great Democratic Party constituency, African-Americans, is pitted against the party’s last great organizational bulwark, public employee unions. The waves of protests over police brutality that ignited nationwide over the killing of Michael Brown have focused on race. Protestors so far have failed to appreciate why police, like so many other public employees, are consistently shielded from accountability to the people they serve.

No one seems to have thought to combine the protests over an unaccountable police force with the protests by some of the same people in some of the very same neighborhoods, over the failure to provide a decent public education to poor and minority communities. Both problems have the same root cause – unions that shield their members from accountability.

Media narratives have simplified these protests to fit stereotypical party alignments. Republicans are seen taking their usual law-and-order stance alongside the police while Democrats advocate for social justice and civil rights. That divide is not so clear on the ground.

All of the major officials involved in the Ferguson case, from the Governor down to the local DA are Democrats. The officials investigating the Tamir Rice case in Cleveland (keep an eye on that one) are Democrats. Only in the Staten Island case are there any Republicans in decision-making roles.

Debates over urban access to effective public safety or effective public education are exclusively intraparty fights among Democrats. Despite the black community’s importance as a Democratic voting bloc, African-Americans always lose that fight with the unions. Every. Single. Time.

When the Democratic Party is faced with a conflict between a public employee union and a black urban population desperate to gain access to the public services that union is supposed to deliver, the union wins. This is the civil rights logjam that has blocked black communities from access to the prosperity that they deserve. Republicans do not own this problem and they should not help perpetuate it.
I've thought the same thing for years. Indeed, pandering by Democrats to police unions is the main reason significant criminal-justice reform didn't begin in Texas until Republicans took over the Legislature in 2003 for the first time since Reconstruction. While Dems were in charge, police unions had virtual veto power on criminal justice bills, whereas Republicans feel little need to pander to them.

Grits doubts Republican pols will seize the opportunity Ladd identifies, in part because the party contains too many elderly ex-Dixiecrats who flipped sides in the Reagan era and have little interest in civil rights or appealing to black constituents. But it's absolutely correct that the GOP has been presented with a "once in a generation" opportunity if its leaders possess the boldness and foresight to seize upon it.

Texas county jail population reports now online from 1992 to present

The Texas Commission on Jail Standards has finally put their historical monthly county jail population reports online going back to 1992. Previously they only put the previous month's report online and took it down when the next one came in so you couldn't compare current and historic data without filing an open records request.

This will be a big help to anyone researching county jail issues. Grits last summer suggested in a blog post that TCJS put these old reports online and their executive director Brandon Wood said via email that request "provided the motivation" to create the archive, though the idea had been kicked around previously.

Moreover, Wood added, "Additional historical data will be posted to include paper ready, immigration, and eventually all of the annual reports from years past." Very cool. (Okay, or maybe I'm just very uncool for thinking that's cool; either way, I like it! Data geekery acknowledged.)

Thank you to everybody at TCJS who helped put this together and to Brandon for making it happen. I really appreciate this sort of transparency and I know other researchers will, too.

Monday, January 05, 2015

Roundup: Profiles in pablum, private prison problems, prosecuting police and practical border advice

Here are several items which deserve Grits readers' attention but haven't made it into independent posts (though one or two may later be reprised in more detail).

Top private prison stories from 2014
Texas Prison Bidness has posts detailing the top five private prison stories in Texas from 2014 here, here, here, here, and here.

Profiles in pablum: Outgoing CCA judges speak up, say nothing
Chuck Lindell at the Austin Statesman profiled the three judges exiting the Texas Court of Criminal Appeals in a love-fest of a story that belied an ideologically divided court and what reportedly have been often acrimonious internal relations. I'd heard from another reporter that the outgoing judges won't discuss divisions over, e.g., the Charles Dean Hood debacle or Sharon Keller's "we close at 5" fiasco, preferring to stick to polite, platitudinous pablum about their colleagues as witnessed in this story. Too bad; the public would benefit from greater insight into one of the state's most opaque, least understood and at times dysfunctional institutions.

Police accountability activists pick tough row to hoe
The Houston Chronicle has a story about a new generation of 20-something activists focused on police brutality and law enforcement issues in the wake of the Michael Brown and Eric Garner cases. Having begun my own two-decade journey in criminal-justice advocacy over police brutality issues in Austin in the mid-90s, I'd respectfully suggest that a) most of the real changes needed must happen in state law, not at the local level, particularly in civil-service cities like Houston, and b) settle in and build for the long haul, these are not issues which will be quickly or simply resolved. In a related story, read a lengthy Dallas Observer story recounting an episode of a mentally ill man who was shot and killed by Dallas police. His brother has joined the group Mothers Against Police Brutality and the article described his dissatisfying efforts seeking answers about the incident from the department, including confronting the police chief at a public forum.

Feds may step in after El Paso grand jury cleared cop who shot handcuffed man
An El Paso cop who shot and killed a handcuffed suspect in 2013 may face federal charges. The officer was fired but (as will ring familiar these days) a grand jury chose not to indict him. El Paso DA Jaime Esparza says he is "monitoring" the case, whatever that means.

Divvying up asset forfeiture funds
See a new report (pdf) from the Office of Court Administration on state-county interactions over asset forfeiture. A good primer on how monies are divvied up. The report was requested in a legislative rider because counties get upset when DPS hands over cases with potential forfeitures to the feds instead of letting county DA offices rake in the profits, though the report found this happens mainly in the larger cases. Also, some counties are using forfeiture funds as a replacement/substitute for local funding for the DA's office, which is contrary to state law. Grits may return to this in more detail later but wanted to post the link.

From the judges
See legislative recommendations from the Texas Judicial Council.

Practical border security advice
The McAllen Monitor has published an in-depth set of editorials parsing the nuts and bolts of immigration and border security issues that deserves attention from everyone out there engaging in demagoguery on the topic, from whatever political perspective, focusing on practical rather than ideological concerns. 

Sunday, January 04, 2015

'The Stranger in the Story': Not just lazy writing but bad for public policy

A New York Times' After Deadline column last month had an interesting if IMO incomplete critique of a common journalism practice, aptly titled "The Stranger in the Story."

Philip Corbett, the paper's associate managing editor for standards, lamented "how often [the Times'] feature and enterprise stories rely on that old journalistic staple, the anecdotal lead. It seemed that practically every story discussed for the front page started out by introducing me, by name, to some stranger whose connection to the point of the article would emerge only with time and patience."

The column had numerous examples from the Times of this lazy and over-used method just from a single day, though in truth it has become ubiquitous throughout print journalism, not just at the Times. In the past, journalists considered "burying the lede" a faux pas; today it's standard operating procedure.

Grits found Corbett's concerns welcome but simultaneously shallow. He wasn't worried about the way this hackneyed form can skew journalism's content, but merely that readers may tire of it: "the device can seem rote and shopworn if a reader encounters one story after another with the same approach. There are many, many ways to start a non-straight-news story; writers and editors should be looking harder for alternatives."

He's also concerned that reduced attention spans in the online era will mean introducing a stranger in the lede may prevent some readers from ever learning the true subject of the article: "In each case, we asked readers to hold on for two, three or even four paragraphs before we got to the point. That’s a lot to ask."

Of course, Corbett noted, "Sometimes the stranger in the first paragraph really is the focus of the story, not just a convenient anecdote." But even then, "we should think hard about starting out with an unfamiliar name. It can be puzzling or daunting to readers — should I recognize this name? Or it may lead readers to suspect that yet another leisurely anecdote is in store. Consider using a description in the lead and leaving the name for later," he advised Times reporters.

I agree with those critiques of this journalistic trope but find them incomplete. Last year, Grits offered a more fundamental analysis of these sorts of anecdotal ledes focused specifically on crime coverage, where I think the technique has not been just repetitive and unoriginal but actively harmful in the public policy realm. (Probably other areas, too, but crimjust is the topic on which your correspondent can most ably marshal evidence.) In an item titled "Telling stories vs. telling the truth," Grits attempted to articulate the broader issues at stake:
Failures of journalism ... help explain why the public thinks crime has increased in recent years even though all available data shows it's at its lowest rates since the 1950s in most parts of the country. The reason: Media today tend to glorify and hype crime for its entertainment value instead of placing it in context and providing useful information. The goal of American crime coverage has become manipulating readers' and viewers' emotions as opposed to increasing their understanding.

Back in June, your correspondent was invited to speak at a national Investigative Reporters and Editors conference at which I addressed this subject, offering similar observations: Back when I was coming up in the journalism field a quarter-century ago, I told them, reporters were taught to write articles along what was described as a reverse pyramid model, with the lede expressing the most important take-away from the story and anecdotes and personal details of individuals involved buried deeper down in the article.

That all changed, though, when the Wall Street Journal famously began publishing stories on their front page, left-hand column that all followed the same format: They began by telling the story of a single individual in a compelling, dramatic fashion that had more in common with fiction writing than how journalism schools taught their students. Then the articles would draw broader conclusions from the anecdote, with contextualizing information buried deeper in the article, often after the jump to an interior page. These articles were powerful for the same reason fiction writing can sometimes tell more truth than non-fiction - we all identify with personal stories and the format encouraged readers to put themselves in the shoes of the person in the featured anecdote.

Today, though, that method has become ubiquitous and virtually every story about crime follows that format, with institutional, cultural and other big-picture analyses relegated to the back end of stories if they're emphasized at all. Start looking for the phenomenon and you'll notice it everywhere. This practice, I told the conference-goers, has limits that most news outlets have come to ignore. Telling stories of individuals may promote a truth but seldom the truth. There are too many other people out there whose truths are ignored by the model and too many institutional dynamics that just don't fit into the framework. The approach encourages the media to pick and choose which stories to tell based on which ones are most likely to push their readers' buttons. The tragic deaths of black girls in Chicago or Houston may not merit a blip on the media radar screen, while the death of a cute white girl from Florida can dominate national media coverage for months.

The rise of this brand of coverage also changed how lawmakers govern in relation to crime and punishment, spurring the creation of countless laws named after dead children or high-profile victims ("Jessica's Law," etc.) that boosted punishments or minimized civil liberties. After this went on for many years, reformers got into the act, too, which is why it took the "Tim Cole Act" to compensate Texas' DNA exonerees or the "Michael Morton Act" to require Texas prosecutors to open up their files. If the media insists on covering crime this way, I told the conferees, then reform advocates can and will manipulate their coverage just like the tuff-on-crime crowd. But really, the journalistic approach does everyone a disservice and distorts the process, no matter which "side" benefits in any given instance.
Viewing public policy through the lens of a single case, however compelling or dramatic the story, inherently risks an anecdotal fallacy in which the featured example fails to explore all the nuance and/or counterarguments to the conclusions drawn from it. (TV news is even more susceptible to this than print media.) And even if counterarguments are acknowledged later, by personalizing the opening anecdote, the writer has informed the reader from the get-go with whom they're supposed to sympathize, framing the story in a way that inherently limits the terms of debate.

Unfortunately, in my experience editors and journalists seem mostly immune to critiques of the damage this method causes by warping public policy debates about the justice system. So I'm especially pleased at Corbett's more practical arguments. In the age of internet-shortened attention spans, perhaps the stranger-in-the-lede practice will diminish simply because readers won't scroll down four screens on their phone just to find out what a news story is about.

Saturday, January 03, 2015

More than check-box form needed to certify juvenile defendants as adults

More from the SA Express-News (Jan. 2) on recent Texas Court of Criminal Appeals rulings requiring the state to better justify decisions to certify juvenile defendants to be tried as adults. The story opened:
For the first time, Texas appeals courts have overturned the convictions of two teenagers tried as adults, ruling that the juvenile courts did not provide enough evidence to explain why the youths were “certified” as adult defendants.

Juvenile justice advocates and some lawmakers say the two cases, both from Harris County, show that it’s past time to examine how the state pushes defendants under 17 into the adult criminal justice system. Critics say this practice, known as certification, follows a pro-forma, rubber-stamp process.
Basically Harris County was using a check-box form that allowed the judge to avoid making findings specific to the individual:
the decisions noted the Harris County juvenile court did not give sufficient evidence as to why the youths in question should stand trial as adults. Instead, it relied on a “form order” process that allows judges to check off boxes and fill in the blanks for each certification, rather than give a detailed explanation for why a defendant was mature enough, and how a crime was egregious enough, to warrant trial in the adult criminal justice system.
And here are a few data from the story on adult certification:
The number of juvenile certifications statewide has dropped in recent years, from 248 in 2008 to 209 five years later. Harris County experienced one of the biggest drops — from 78 to 29 over that same period — a shift some chalk up to a combination of increased pressure on the three juvenile judges and a greater emphasis by some to take more time on certification cases.

Smaller counties in the Rio Grande Valley and elsewhere on the Texas-Mexico border have seen a recent increase. Where Harris County’s certification rate stood at 7.4 for every 100,000 juveniles in 2013, the rates in Val Verde and Starr Counties were more than 200 times that.
See earlier Grits coverage and a recent Ted Talk on the subject by the LBJ School's Michele Deitch.

Tuesday, December 30, 2014

Payday lenders still getting some Texas prosecutors, courts to carry their collections water

Even though Texas ostensibly outlawed the practice, Texas Appleseed has alleged "an ongoing trend of unlawful use of criminal charges by payday loan businesses to collect debts" in a complaint to Texas' Consumer Finance Protection Bureau. Lots of juicy detail there so rather than excerpt it, I'll just say those interested should read it themselves. Bottom line: Most counties seem to have stopped, some have clearly not (whether due to confusion, miscommunication or avarice - in general, prosecutors' hot check funds are dwindling), and there's insufficient data to track the issue in close detail.

See also coverage from Texas Public Radio, Huffington Post, the SA Current, and of course The Texas Observer, whose earlier reporting launched the most recent push toward payday lending reform. Also, I was happy to see the complaint referencing a report on the topic my wife helped prepare for Consumers Union 15 yeas ago. She poured a lot of herself into this issue back in the day, so she'll be glad to learn folks are still finding CU's work product useful.

Cell phones responsible for tiny fraction of distracted driving, traffic deaths

Just a quick data-backed reminder, as San Antonio prepares for that city's ban on cell-phone use while driving to take effect next month, that the near-hysteria over drivers using cell phones often overstates the dangers this common behavior poses, which perhaps explains why laws banning phone use while driving haven't significantly reduced accidents. Reported the SA Express-News (Dec. 20):
“Since many things distract drivers, cellphone use may be replacing distractions that drivers would engage in absent phones,” [Insurance Institute for Highway Safety Vice President Russ] Rader said. “So the overall level of distraction may not be going down, even though phone use is.”

Crash statistics similarly show that for as much attention as cellphones get by policymakers and the media, they contribute to a small percentage of crashes.

There were 30,800 fatal crashes nationwide in 2012, a report this year from the National Highway Traffic Safety Administration states. Of those, 3,050 involved a distracted driver — 378 of whom were on cellphones, the federal data indicate.

That means cellphone use contributed to 1.2 percent of fatal crashes nationwide in 2012.

Federal data from 2010 to 2012 demonstrate that crashes involving cellphones account for about 5 percent to 7 percent of crashes caused by distraction, which in turn make up only about 16 percent of all crashes.
From all the "hang up and drive" hype, you'd think we'd be talking about more than 1.2 percent of fatal accidents. That figure seems low even to someone like me who's a skeptic of criminalizing common behaviors like cell-phone use. While every death is tragic, I'd have expected more fatalities than that to have been on the phone just as a matter of Bayesian probability since, from my own observation, at any given time more than 1.2 percent of drivers seem to be on the phone.

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

Failure to hire sufficient, competent lab staff hindering Austin burglary clearance rates

For many years, every budget cycle the Austin Police Department has proposed sizable expansions of the number of patrol officers while failing to boost civilian crime-scene techs and lab capacity to solve the crimes - particularly home burglaries - that rank highest on the public's complaint list. Reported the Austin Statesman (Dec. 24):
Austin police solve fewer than 10 percent of the city’s residential burglaries, a little less than the national average of 12.7 percent, according to the federal government’s Bureau of Justice Statistics.

The low number of cases “cleared” — by indicting suspects or recovering stolen property — has persisted despite 20 years of declining crime rates. Police departments across the country face backlogs of unprocessed evidence because of personnel shortages. As evidence rooms fill up, the time needed to analyze fingerprints and DNA keeps growing.

For the Austin Police Department, solving burglary cases comes down to manpower: It’s lab technicians, not detectives, who are in high demand.

Three-quarters of Austin’s more than 6,300 burglaries last year were of residences, according to police data. The department has a backlog of 1,500 fingerprints, said latent print supervisor Officer Dennis Degler.

“For the past few years, we’ve done with four examiners when we should have had six examiners,” Degler said. “We haven’t been granted any new positions, and we haven’t had any new positions in the past decade.”

Two employees were laid off because of a decision to pursue stricter standards and accreditation from an international organization, Degler said.

“We’re trying to get away from the stigma that our people were not competency-tested, that we didn’t have good quality control,” Degler said. “When you’re talking about depriving someone of their freedom through forensic evidence, credibility’s important.”

The 25 employees of the department’s recently established Burglary Unit have continued to collect more evidence than the examiners can efficiently process.
The low clearance rate cited for burglaries investigated by APD is actually higher than they've reported in the past. Still, think of it: The lack of two examiners undermining the work of two dozen officers in the burglary unit and generating hundreds of backlogged cases. Regardless, for years APD administrators emphasized patrol officers over crime lab staffing in their annual budget requests. For want of a nail,  the shoe was lost ...

It's also remarkable that, for some undefined period, APD apparently employed two people in its crime lab who were not competency tested and who fostered a perception that they "didn't have good quality control." Well then, when and why were those folks hired in the first place? How many cases did they work on? What problems triggered their dismissals? And why weren't they replaced with actually competent staff instead of letting backlogs pile up to unacceptable levels? In a lot of ways, the story raises more questions than it answers.

The Statesman story is right that crime lab backlogs are growing seemingly everywhere, overwhelmed by unprecedented demand. Even where funding has increased substantially, as at state crime labs, it still hasn't kept up with growth. Offhand, I can't think of a law enforcement agency in Texas that wouldn't benefit more from expanding forensic capacity than adding patrol officers.

Austin's new 10-1 council would do well to stop hiring ever-more patrol officers, at least for a budget cycle or two, to focus on bolstering crime labs, the 911 call center, and other civilian components of the police agency which the old council ignored in favor of paying for ever-more uniformed officers. If the city wants more police coverage, there are ways to do that without a budget increase.