#cjreform in the Texas GOP 2018 party platform

Grits is back from the Texas state GOP convention in San Antonio, where Just Liberty had a booth from which we promoted a number of criminal-justice reform planks in the party platform. Delegates approved quite a few #cjreform items worthy of readers' attention:

• Raise the Age. Calls on the Lege to raise the age of adult criminal culpability from 17 to 18.
• End debtors prisons. The party wants to "end the incarceration of individuals because they cannot pay tickets, fines, and fees for Class C misdemeanors, including traffic citations."
• Abolition of the Driver Responsibility Program. Includes a call to "immediately restore the driver licenses of the citizens whose licenses were suspended by the DRP and to cancel their debt."
• Quicker processing of rape kits. The party wants crime labs sufficiently funded to reduce rape-kit processing times to 90 days.
• Opposition to warrantless government surveillance. Two planks on this, one with general wording, and one calling on the Legislature to require a warrant for the government to access cell-phone location data.
• Civil penalty for pot possession. The party endorsed reducing penalties for low-level marijuana possession from a Class B misdemeanor to a civil offense (essentially, a $100 ticket).
• Remove cannabis from list of Schedule 1 drugs. This was a plank aimed at Congress.
• Medical marijuana. The party wants to "allow doctors to determine the appropriate use of cannabis for certified patients."
• Militarization of police. Calls for "reporting and training standards" for military equipment obtained by police from the federal 1033 program, as well as a requirement that the elected governing body approve any application to the program with a formal vote.
• Indigent defense. Calls on the Legislature to fully fund indigent criminal defense.

Moreover, several items that were in the 2016 platform made it in again:

• No arrests for Class C misdemeanors (except when necessary to prevent family violence)
• Require a criminal conviction for asset forfeiture
• Eliminate red-light cameras and other photo-enforcement systems

Notably, the "Criminal and Civil Justice" section of the state GOP platform included a requisite appreciation of law enforcement, but with caveats:

We express our gratitude and appreciation for police officers, first responders, armed forces, and veterans. And furthermore we support local law enforcement agencies and associated personnel to the extent local and state police officers are properly and adequately trained and supervised or otherwise internally and individually held accountable for any conduct which is found to violate state law or the Texas State Constitution.

There were a few #cjreform items that didn't make it in, but overall that was a successful effort. Check out Just Liberty's special, hour-long podcast interviewing conservative leaders on various #cjreform platform planks being proposed.

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A few thoughts on the process:

Historically, party platforms don't carry tremendous influence during the legislative session. The dizzying array of suggestions and demands can be overwhelming. No one can agree with all of it, which in a strange way frees legislators from an obligation to agree with any of it.

But the Texas GOP under the James-Dickey regime has been promoting their platform more vigorously. E.g., failure to comply with the platform was the pretext for censuring House Speaker Joe Straus. And there were failed attempts at the convention to censure sitting officials like state Rep. Byron Cook and U.S. Sen. John Cornyn for failing to abide by the platform's principles. Especially on the GOP side, politicians are being called to account more than any time in recent memory over fealty to the platform.

At the same time, many delegates expressed deep dissatisfaction with the platform overall, which is a bit of a jumbled mess, in places, and is too long for any normal person to ever sit down and read. While this wasn't my first convention, I'd never seen the platform process up close. Those 31 volunteer committee members go through a grueling and thankless experience, working late into the evenings (read: missing all the parties), with very little time to investigate any issue closely. (Note to the state party: Next time, feed those people and give them coffee!) By the end, they were all exhausted. That didn't seem like a reasonable thing to expect human beings to endure. And they all paid to be there!

On culture-war issues, the platform takes some extreme stances that appear to flaunt a basic commitment to the rule of law. E.g., it calls on the Legislature to "reject" the Supreme Court's ruling allowing same-sex marriages, and to "ignore and refuse to enforce any and all federal statutes, regulations, executive orders, and court rulings" on pro-life issues.

Can we be frank? It's difficult to reconcile the extremist devotion to the Constitution expressed by so many party loyalists with a legislative priority to "ignore and refuse to enforce" federal laws and Supreme Court rulings on pro-life stuff. Since every Texas elected official takes an oath to uphold and defend the "Constitution and laws of the United States," that clause in the legislative priorities almost screams to elected officials, "You don't have to follow this!"

But that's the culture war. For the criminal-justice issues Just Liberty cares about, the platform signals to GOP legislators that a #cjreform vote on these topics is a "safe" one.

In addition, in an interesting and useful way, the process of promoting reform planks through all the various senate districts was like a massive focus group getting feedback on our issues. Even better: It introduced us to hundreds of supporters across Texas whom we now can contact and help plug into the process when the legislative session rolls around. If delegates who supported these ideas in San Antonio continue to participate next spring, it will help all these bills move forward.

I appreciated everyone who helped promote Just-Liberty-endorsed planks and who helped us navigate the party processes. Thank you! We had a lot of fun this week.

Finally, just for kicks, if you haven't heard our little platform campaign jingle (which means you're not a podcast listener or following Just Liberty's Facebook page), give it a listen. It's been running through Grits' head all morning.

Special Reasonably Suspicious podcast: Conservative leaders promote #cjreform planks in Texas state GOP platform

Want to better understand the reasons why prominent conservatives in Texas are embracing justice-reform policies? You won't find a better primer on conservative justice-reform principles than Just Liberty's special, hour-long podcast aimed at promoting #cjreform planks in the party platform at the 2018 Texas state GOP convention. Check it out:

This special episode includes original music and interviews with:

• Dr. Derek Cohen, Director of Right on Crime
• John Baucum, Chairman Emeritus, Texas Young Republican Federation
• Charles Blain, Executive Director of the Restore Justice Project, Empower Texans
• Jason Isaac, President of the Conservative Coalition Research Institute
• Heather Fazio, Campaign for Responsible Marijuana Policy
• David Safavian, American Conservative Union Foundation

Enjoy!

Choker!, (Mis)Understanding Probable Cause, and other stories

Let's clear a few browser tabs and pass along some interesting tidbits that merit Grits readers attention:

TFW you find a box of guns and bloody money at the courthouse
Keri Blakinger did a wonderful job attempting to fill in the backstory on this amazing discovery.

They're all isolated incidents, we promise
A small-town Texas police chief (Olney) forced two men to perform a sex act at gun point and attempted to coerce the wife of a sex offender into becoming his "slave." That's quite a sense of entitlement this gentleman felt, don't you think?

No TCLE credit for Tom Green County sheriff training on jihadi threat
The Texas Commission on Law Enforcement retracted accreditation for a police training in San Angelo focused on the "jihadi threat," preaching to law enforcement that Muslims harbor secret aims to colonize America and impose Sharia law. Good for Kim Vickers, doing his job.

Bad things happening in jail
Grits can find no related press coverage, but a petition on Change.org alleges that a woman in the McLennan County Jail on a detention hold was sexually assaulted while being held on an immigration detainer for more than two years. She's a 30-year county resident and local businesswoman with four US-citizen children. I hate these stories. Heart wrenching.

Choker! 
A fired Waco cop who'd choked a handcuffed defendant and claimed he'd acted in self defense is on trial for two misdemeanor counts - assault and official oppression - reported the Tribune-Herald. A police trainer told jurors the officer had been specifically trained not to grab a defendant by the throat in that manner. Further, "Trial testimony showed that while the other officers there that night said they were shocked by Neville’s actions, they did not report it to their supervisors or note the incident in their reports." At least he's off the force.

Needless death thanks to outdated force policy
In Austin, a mentally disturbed 18-year old woman wielding a knife was shot dead by police. As Grits has described before, American cops are too quick to shoot knife wielding suspects. Both the Police Executive Research Forum and best practices from other countries have identified much better ways to handle these situations.

Analyzing unsolved murders
The Washington Post compiled clearance rates for murders over the last decade in the 50 largest US cities. Above 50 percent looks pretty good. Further, unsolved murders tend to be geographically clustered, they found.

Traffic stops are a crappy investigative tool
Frank Baumgartner, who authored a book analyzing racial profiling data from millions of traffic stops in North Carolina, told CityLab interviewer Tanvi Misra that "using the traffic code and the vehicle code as a way to investigate people more broadly has not given very great benefits in terms of crime reduction, but it's had an unintended and unnoticed consequence: It has made people feel like they don't have full citizenship. They walk down the street and they're suspects."

(Mis)Understanding probable cause
This analysis found that the public doesn't understand "probable cause" the same way lawyers and the government do, and the confusion causes community distrust. The authors "discuss the implications of these findings for the perceived fairness of police procedures and its impact on police–community relations."

Indigent defendants faring worse than two decades ago

Readers will recall recent reportage from the Texas Tribune's Neena Satija finding that defendants in Travis County with appointed counsel fared far worse than people who hired lawyers. Of those accused of petty drug possession, 80 percent were convicted who had appointed counsel compared to 48 percent who could afford to hire a lawyer, a Council of State Governments report found.

So I was interested to run across an old Bureau of Justice Statistics document from 2000 analyzing national statistics on defense counsel in criminal cases. (As far as I can tell, they've done nothing similar since.)

Back then, according to that document, conviction rates for defendants with retained and publicly paid attorneys were essentially similar, and the bigger difference was in the sentence received: "Of defendants found guilty in Federal district courts, 88% with publicly financed counsel and 77% with private counsel received jail or prison sentences; in large State courts 71% with public counsel and 54% with private attorneys were sentenced to incarceration."

So the big difference from hiring a lawyer came not from whether or not one was convicted, but whether or not one received a jail sentence. That's a big difference from today, when hiring a lawyer in the Travis County CSG analysis meant defendants were much more likely not to be convicted at all.

But even that's not the full story. According to the 2000 BJS report, "State defendants with public counsel [were] sentenced more often to prison or jail, but for shorter terms than those with private lawyers."

That was especially true for defendants convicted of drug crimes in state court, where average sentences back then were 97 months for defendants with a lawyer paid by the state compared to 140 months for people who hired a lawyer!

So in some ways, state defendants with publicly financed counsel fared better than people with private lawyers. Hiring a lawyer made you less likely to be sentenced to prison but, if you were sentenced, you were likely to be punished more than 40% longer if you retained counsel.

By contrast, today hiring a lawyer both makes one much less likely to be convicted and less likely to be punished harshly. The system has shifted more to the benefit of well-off defendants than it was 20 years ago, to judge by these data.

Despite serious disparities, defendants were receiving something closer to equal treatment, whether or not they could afford to hire a lawyer, during the period covered by that BJS study compared to now.

'Justice Needs A Platform'

Part One of the denouement of Just Liberty's campaign to install #cjreform planks into the platforms of both Texas political parties begins next week, with the state GOP convention in San Antonio. Today I'm putting together a special, hour-plus podcast for the event, highlighting interviews with Republican leaders in support of the various platform measures, and every time I use our little jingle (sprinkled throughout, in whole or in part, to brand the campaign), it makes me smile. If you haven't heard it yet (which means you're not a podcast listener or following Just Liberty's Facebook page), give it a listen:

We've got another version that goes, "Justice Needs A Champion," which we'll use this coming session in support of items that make it into the platform(s).

Lyrics are mine. Gabe Rhodes, a veteran Austin producer and virtuoso guitarist, composed and produced the music, which was performed by an all-star cast of Texas musicians: Floyd Domino on piano, John Mills on clarinet, Dony Wynn on drums, and Glenn Fukunaga on bass. (Many vocalists, including ours on this project, prefer not to be named on jingle work.) It was humbling and awesome to have truly world-class musicians on the project.

Speaking of music, Just Liberty created another short jingle, titled "Stop The Train," for our decarceration campaign over the coming year. We'll be using it to brand the campaign across a variety of media. To introduce it to our supporters, we let folks download/listen to it on the thank-you page they see after they sign a petition asking TDCJ to include prison closures in its budget request for the coming session.

Go here to sign the petition and give it a listen: It's essentially a simple, blues-based train song, of all things, but I think it's pretty fun. Once again, lyrics are mine, Gabe Rhodes produced it, and Dony Wynn made the whole thing go with his percussion mastery. Malford Milligan performed the vocals, and did a really sweet job.

All of this and more will be integrated into our GOP state convention podcast released next week, so look for that and give it a listen. Now, having procrastinated sufficiently, it's back to audio editing for me. More later, gentle readers!

While I'm focused on that project, Grits readers should use the comment section as an open thread to say what important criminal-justice developments Texans should be paying attention to? There's a lot going on!

Denial not just a river in Egypt, but also the go-to move for TDCJ flaks

The habit of the Texas Department of Criminal Justice (TDCJ) issuing full-throated denials whenever reporters raise serious problems is beginning to annoy your correspondent (again), and I wonder if others have noticed?

For example, when an inmate at TDCJ's Youthful Offender Program (YOP) was molested by an adult prisoner earlier this year, TDCJ spokesman Jeremy Desel told Lauren McGaughy at the Dallas Morning News, “'Any characterization of the [YOP] program being systemically flawed is false.' ... 'This is an isolated incident in which TDCJ took swift administrative actions against all employees involved.'”

In reality, under the federal Prison Rape Elimination Act (PREA) - which Governor Abbott agreed Texas would follow, reversing Governor Perry's stance - 17-year old inmates were supposed to be kept completely separate from adult inmates, enforcing "sight and sound" restrictions so older inmates could never see or speak to them.

So, when an adult inmate stuck his finger up the behind of a 17-year old in the Youthful Offender Program (YOP) in Brazoria County, it demonstrated that TDCJ had never actually complied with the sight and sound restrictions under PREA!

No adult prisoner should ever have been within ass-fingering distance of those kids.

Which tells us that, while TDCJ's spokesman insisted that, "Any characterization of the program being systemically flawed is false," in fact the incident precisely demonstrated a "systematic flaw" that went well beyond any "isolated incident."

These deeper, underlying, systemic issues are why TDCJ fired the warden and most of the YOP staff, then moved the whole operation, lock, stock, and barrel, to a facility in Huntsville nearer central administration. That's definitely a "systematic" response that belied the phony-baloney, nothing-to-see-here commentary Mr. Desel tried to pawn off on Ms. McGaughy.

The warden and staff were scapegoated. This problem resulted from decisions to disregard PREA sight-and-sound provisions for 17-year olds that would have been made at the highest levels of the agency.

Similarly, when the Texas Criminal Justice Coalition issued a report criticizing disparities in work and education opportunities for women prisoners, Mr. Desel told the Texas Tribune's Sydney Greene that he "vehemently disagreed" with the report, but offered at most nitpicking rebuttals to their criticisms.

This is deflection. In fact, as we learned in the same story, the agency itself recognized the disparities and asked for money from the Legislature in 2017 to upgrade women's programming, but it was denied. If the agency really disagreed there was a disparity, why would they need to ask for that money?

Then, this week, Grits read Keri Blakinger's story in the Houston Chronicle about four prison guards being fired at TDCJ's Ramsey Unit for planting evidence on inmates, then filing grievances against them. Allegedly, this fraud was conducted to comply with a 2-grievance-per-day quota dictated by their supervisor, a major, who was also terminated.

Once again, Mr. Desel exclaimed that the planting of evidence was an "isolated incident." But it's not an isolated incident if four guards are involved and they were enforcing a policy laid out by their supervisor! That's pretty much the opposite of an isolated incident. Rather, it is an example of systemic injustice.

One guard planting evidence on a prisoner and covering it up may be an "isolated incident." Five doing so is a conspiracy.

The Dallas News story mentioned above quoted a whistleblower accusing TDCJ of a "culture of coverup," and that's certainly what's evinced in this pattern of denials. In each case, reporters came forward with legitimately newsworthy stories and the agency responded with minimizing comments or outright denials in the face of obviously true, contravening facts.

That's not just evidence of a bunker mentality at the agency, it's a piss-poor PR strategy, to boot. Failing to acknowledge true things sets the agency up for a long-term media mire on these topics, where denials are corrected with facts, the agency issues a new round of denials, then we rinse and repeat until there's some real-world resolution, as we saw recently with the Texas Supreme Court ruling the agency can't conceal information about execution drugs.

Speaking of which: Few outside the agency probably remember that TDCJ fired their former spokesman, John Hurt, because he'd spoken honestly and factually with the press about that topic. Here's how Mr. Hurt, a 20-year PR veteran from the Texas Department of Transportation, recalled his brief tenure at TDCJ:

"My last interview was with Time magazine about the expiring execution drugs. When they found out, they positively came unglued that I did what I was getting paid for. They even admitted the interview read well, they just didn't want the issue in the media. They just wanted to keep issues like the CO shortage and the outdated execution drugs as far out of the media as possible."  Mr. Hurt went on to explain, "The admin suffers from intellectual incest. They all live in a little town, went to the same little college in Huntsville and are terrified of new ideas." Mr. Hurt then offered his ideas on how to change the face of the public information office and the agency in general. "Moving the agency to Austin would be in everyone's best interest." "I tried to show them how to position themselves in a positive light and they didn't want any part of it. I've never worked in a stranger place."

Before that, Michelle Lyons was fired for treating bloggers on equal footing with MSM reporters when they (we) requested information or reactions from the agency. They trumped up phony allegations that she'd fudged her time sheets and she sued, winning a fat settlement.

So this practice of deflection and deception is not new and not just attributable to Mr. Desel. Well before he arrived, back in 2013, I'd written, "Lately, Grits has come to consider both the TDCJ and Department of Public Safety PIOs [Public Information Offices] basically worthless," and little has changed since then.

Rather, it's more about what that YOP whistleblower called the "culture of coverup" surrounding what's now the planet's second largest prison system (after the feds) here in Texas. It's an old and well-worn pattern. But it's a continually lamentable one.

Now in a dwindling minority, failure to "Raise the Age" creating problems for Texas all over

The Missouri Legislature recently voted to raise the age of adult criminal responsibility from 17 to 18 years old, beginning January 1, 2021. That leaves Texas one of only four states nationally that still prosecutes 17-year olds as adults, despite the fact that an overwhelming majority of GOP primary voters (86%) support changing the policy. This is becoming embarrassing.

Quite a few stories you see on Grits are byproducts of Texas' backwards, minority-view policy on who is a juvenile.

For example, yesterday in a roundup I'd linked to a Dallas News story about the Youthful Offender Program at the Texas Department of Criminal Justice, which manages incarcerated youth younger than 18. After an adult inmate engaged in sexual relations with one of the youth, the warden and most of the staff were terminated and the entire program was moved to a unit in Huntsville, closer to central administration. This program - and the scandals that come with it - only exist because Texas has refused to "raise the age."

Similarly, Governor Abbott wants to treat 17 year olds as children for purposes of their parents' gun-storage requirements, but I'd described how the exact same logic may be used to support prosecuting 17-year olds as juveniles. Indeed, if Texas had already raised the age for purposes of prosecutions, it's likely the gun-storage rules would have been updated in the process.

We've also discussed county jails having to pay to meet federal PREA standards because they must enforce "sight and sound" barriers between 17 year olds and adult populations. The Legislature has balked at the fiscal note on raising the age, but failing to adopt the policy has created unfunded mandates for counties which are shouldered by the same taxpayers in the end.

And, of course, treating 17-year olds as adults created all sorts of problems with Texas' capital punishment scheme, given that US Supreme Court rulings treat them as juveniles.

There are so many areas where updating this one policy would resolve issues and remove glitches from various justice-system conundrums that are caused, at root, by treating 17-year olds as adults for some purposes and children for others.

Indeed, Grits has argued that raising the age from 17 to 18 merely moves Texas from a 19th to a 20th century policy. But in the 21st century, modern brain science has shown youthful brains continue to develop well after that. Society already treats older youth as children for many purposes - buying tobacco (18), alcohol (21), renting a car (25), staying on their parents' health insurance (26) - and there's no reason to think criminal prosecution necessarily should fall on the lowest end of that range.

Things are changing fast. When the Texas Legislature last convened, there were seven other states which still prosecuted 17-year olds as adults. After Missouri, there are three. 

Texas has made such great strides on the juvenile decarceration front, even if it has further to go. It's a shame that, nationally, this issue continues to paint the state as backward and excessively punitive. It's such a pointless stance, and on the ground is creating more problems and costs than it prevents.

Too full rural jails; missing interrogation recording can't be used as 'sword' against defendant; and other stories

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

Youthful offenders get new home, program at TDCJ
The federal Prison Rape Elimination Act created special requirements for housing youth under 18 away from older inmates. After a sexual incident at the Texas Department of Criminal Justice's Youthful Offender Program that forced its from-scratch overhaul, the firing of the warden and most staff, and moving the program to an entirely different unit, it becomes more obvious why. Lauren McGaughy at the Dallas News has a report from the new unit housing the program.

TJJD safer with fewer inmates, director says
According to this letter to Governor Abbott from Texas Juvenile Justice Department Executive Director Camille Cain, " I am happy to report that we have already seen progress on several fronts. For example, the population in our secure facilities has dropped to historic lows, from 1,026 youth in December 2017 to 879 today. At the same time, we have seen a 43 percent drop in major rule violations and a 54 percent decrease in violent incidences. JCOs have lowered the use of physical restraints by 26 percent and the use of OC spray by 48 percent. All of this change is promising for Texas." See coverage from the Dallas News.

Missing interrogation recording can't be used as a 'sword' against defendant
In a recent CCA ruling favoring the defense, Judge Scott Walker ruled that a partially recorded interrogation was unfair and inadmissible after the prosecutor used the failure of the state to record the conversation to accuse the defendant of lying. Wrote Walker:

Assuming, without deciding, that Appellant testified truthfully about what she told the detectives in the missing thirty minutes, support for her testimony had been lost by the State, which then used the loss to accuse Appellant of lying and making things up. Appellant’s explanations were minimized by counsel for the State, both during her testimony and in closing argument to the jury. Appellant could not prove that she had made a prior statement that was consistent with her trial testimony because any such statements had been lost through no fault of her own. By repeatedly referring to what might or might not have been said during the missing thirty minutes, the State improperly used the missing minutes as a sword against Appellant. The error in this case was material.

Too-full rural jails
Check out the Texas Public Policy Foundation's new report on overincarceration and rural jails.

Rights for me but not for thee
Here's an academic paper considering the disparity in how police are treated when being questioned over alleged criminal conduct compared to average citizens, arguing that they should be treated equally. See related Grits coverage here, and related commentary from Toby Shook here.

Gov. Abbott: raise the age at which youth are considered children, but only for purposes of gun-storage rules (?)

In his plan to address school shootings, Texas Gov. Greg Abbott called on the Legislature to "to raise the age at which someone is considered a child from whom adult gun owners would have to secure their guns; Abbott wants to raise that one year to include 17-year-olds like the shooter at Santa Fe High School," reported the Austin Statesman.

Grits' thought: Isn't there a philosophical link between the Governor's proposal to consider 17 year olds "children" for purposes of gun ownership and the "raise the age" proposal to charge 17 year olds as juveniles instead of adults in criminal court?

If someone should be "considered a child" at 17 for purposes of access to firearms, can Texas really justify prosecuting 17-year olds as adults in other contexts?

After all, what is the nature of the developmental deficiency among 17-year olds that the governor thinks a birthday will fix? Why might one consider 17 year olds less than reliable when it comes to prioritizing firearms safety?

Why, it's for the same reason most states don't charge 17 year olds as adults when they commit crimes: The portions of their brains responsible for cognitive reasoning are less well developed than they will be when they are older. Or, in layman's terms, 17-year old youth are not yet as mature as adults.

Surely, if that's his position, the Governor should get behind raising "the age at which someone is considered a child" in general from 17 to 18, not just on this one, narrow, gun-safety provision.

Either 17-year olds are adults who're prepared for all of life's responsibilities, and the resulting consequences from not fulfilling them, or they're not.  And clearly Gov. Abbott doesn't believe Texans can rely upon 17-year olds to behave in a responsible fashion, or such a law wouldn't be necessary. (Indeed, most parents of a 17-year old would likely tell you themselves that their child isn't prepared to face the world on their own as an adult.)

Gov. Abbott's proposal challenges the legalistic pretense that 17-year olds can and should be expected to behave as responsible adults. But he should be consistent. If parents are still responsible for their children's 2nd Amendment rights at 17 because a 17-year old's cognitive reasoning is under-developed, surely it make little sense for the criminal-justice system to prosecute those same youth as adults when they break the law?

Gov. Abbott's arguments for raising the age in this narrow context highlight how inappropriate it can be to assign adult expectations to 17-year old actors. These are lessons state leaders must eventually embrace much more broadly, but journeys of a thousand miles always begin with first steps.

#MeToo among Texas women prison guards

Go read Keri Blakinger's new Houston Chronicle story on the topic.

Keri writes that, "female officers also have to contend with harassment from coworkers, masturbating inmates and fear of retaliation if they complain, according to lawsuits, state records and interviews." Here are the crux of the allegations:

“You think it’s the inmates you have to worry about,” said one former employee, who asked not to be identified, “but it’s actually the people you work with.” 

Some women told the Chronicle of enduring lewd comments or inappropriate contact from co-workers. One female employee said she and other women guards picked jobs working around inmates to avoid having contact with the men who supervised them. 

The latest allegations come after the department reached a $250,000 settlement last year in a lawsuit accusing a male lieutenant of raping an officer he supervised — a claim reminiscent of former assistant director Sammy Buentello, who retired in 2004 amid criminal charges and a high-dollar lawsuit by multiple women accusing him of sexual harassment and assault. 

TDCJ officials, however, say that sort of workplace environment is a thing of the past. 

“Any days of a male-dominated culture are long gone,” said Lorie Davis, director of TDCJ’s Institutional Division and the highest-ranking woman in the agency. “We have a lot of women that move up through the ranks.”

Ms. Davis seems to think that because, as a division manager, nobody sexually harasses her, that it's not a problem at the agency: “I haven’t experienced sexual harassment as a female in our agency in years,” she said. “Years and years, not since I was a corrections officer literally 30 years ago.”

Does anybody really believe that, in Texas' predominantly rural prison system, where guards are paid roughly half the wages of the counterparts in California, for example, and more than one in four positions turn over annually, that the "days of a male-dominated culture are long gone"?

That seems awfully hard to swallow.

Killing off Texas' drug-task force system: A reminiscence

State Sen. Juan "Chuy" Hinojosa called this morning to reminisce about the effort to rein in and, ultimately, de-fund, Texas' system of multi-county drug task forces, a campaign referenced in this post, and he was such an unsung hero in that story, Grits thought it worthwhile to recount his role briefly.

State Sen. Juan "Chuy" Hinojosa

The Tulia drug stings arguably mark the beginning of the 21st century Texas #cjreform movement, but by the time they occurred, Chuy Hinojosa was already a veteran legislator in the Texas House and was poised to chair the House Criminal Jurisprudence Committee in 2001. From that position, he carried and passed legislation to require corroboration for informants in undercover drug stings which was bitterly opposed by prosecutors and police unions. Then-rookie Sen. Leticia Van de Putte carried it in the Senate, and ended up taking on a bigger fight than she'd bargained for!

The campaign for a corroboration bill took on a life of its own, with local religious activists from Tulia organizing their people to come to Austin, while allies came out of the woodwork, from the right and left alike, in support of a drug-policy reform agenda which previously had no, obvious legislative champions. This was essentially tilling virgin, bipartisan terrain. (Check out a contemporary flyer from that campaign promoting our bill among religious conservatives; here's the "mainstream" version.)

The House floor vote on the Tulia corroboration bill was the first time in living memory that a bipartisan, grassroots, reformist faction outflanked the center-right ruling faction on criminal-justice topics. The media loved the Tulia story and trumpeted the success everywhere, helping bring additional resources and momentum to the nascent #cjreform movement in Texas. Groups like the Texas Criminal Justice Coalition and the Texas Fair Defense Project were created during this period in the early aughts - it was the first time the movement here had institutions as opposed to just a few disparate voices.

Perhaps even more importantly, that floor vote provided a template for passing a flood of reform legislation that followed. In retrospect, it was a pivotal moment.

Hinojosa continued to demand accountability from drug-task forces, and finally the other side pushed too far. In 2005, during session, the senator reminded me today, he was pulled over by a drug task force officer who suspected him of being a drug courier, perhaps because the senator was driving a nice vehicle. The senator believed he was being racially profiled, or worse, targeted for filing reform legislation to force all the task forces under control of the Texas Department of Public Safety. After that happened, the Senate's passage of the put-em-under-DPS bill was a fait accompli.

By this time, most of the Tulia defendants had been exonerated and pardoned, the cop who set them up had pled guilty to perjury, some of the task forces had been targeted via federal civil rights litigation, and your correspondent had spent several years compiling examples of task force abuses in a campaign based out of ACLU of Texas aimed at getting rid of them. In other words, the terms of debate had significantly changed.

The Legislature refused to get rid of drug task forces outright in 2005, but they did pass a compromise bill putting them under control of the Department of Public Safety Narcotics Division, which at that time was run by Patrick O'Burke, a square-jawed, no-nonsense guy who demanded more accountability using better metrics than they were used to.

In  the end, the majority of task forces refused accountability and declined to follow some or all of O'Burke's new rules.

Meanwhile, at ACLU of Texas, we were encouraging every eligible entity in the state that might compete with drug task forces for Byrne grant money to apply to the governor, even sending blank applications and pitch information to various local officials by snail mail and following up with calls encouraging them to apply. Many did, and every time one of them made a compelling case for funding, it simultaneously made an implicit case that the task forces shouldn't receive funds.

At this point, in 2006, then-Governor Rick Perry surprised everyone. Drug-task forces were funded through his office's Criminal Justice Division using federal Byrne grants, and he decided to turn off the spigot. A few task forces tried to keep going until their asset forfeiture money ran out, and others created single-county task forces outside of DPS control (and without state or federal money).

In the end, except for a few that scaled back to a much-reduced single-county footprint, they all just went away. When the Tulia drug stings happened, there were 53 multi-county task forces covering most of the state and employing around 700 narcotics officers who collectively made some 12,000 arrests annually. And then they didn't. Moreover, I dare say, for all the sound and fury surrounding their de-funding, I haven't heard them mentioned (by Texans) in years and as far as I can tell, no one misses them.

However, there's a somewhat dark and unfortunate coda to that story. When Gov. Perry de-funded Texas' drug task forces, he decided to split the pot of federal money to pay for two other priorities: 1) drug courts and other specialty court dockets, and 2) the original "border security" surge along the Rio Grande which presaged the current DPS/National Guard surge (read Melissa del Bosque's story on the border surge if you haven't already; go ahead, I'll wait).

Eventually, federal Byrne funds were replaced with hundreds of millions of general revenue dollars, most of it to pay for the Department of Public Safety to rotate troopers to the border for inefficient, short-term deployments.

So abolition of the Byrne-grant funded drug-task-force system in Texas was a victory for bipartisan justice reform - both liberals and small-government conservatives support scaling back the failed drug war - but it freed up funds for an unnecessary and problematic militarization of the border.

According to Sen. Hinojosa, the border-surge priorities issue goes far beyond just DPS troopers not making DWI arrests in the rest of the state. He cited Parks and Wildlife not having enough personnel for duties in the northern part of his senate district around Kingsville/Corpus Christi because they're all deployed in the Valley.

Grits appreciated the senator calling to reminisce after reading my drug-task force post from the weekend. There aren't that many of us still in the game who remember all of that well enough to tell the stories.

So, a day late after Memorial Day, here's a hearty thank you to a former marine, for his service a lifetime ago in Vietnam, to be sure, but for his yeoman's service on these topics, as well. ¡Gracias, Chuy! 

Considering ineffective assistance without all the voices in the room

The Texas House Criminal Jurisprudence Committee the other day held an under-attended hearing (hardly anyone in the audience and no quorum on the dais - video here) covering three topics: the legal framework behind sexual assault prosecutions (which bled into discussions of crime labs), prosecutor misconduct, and ineffective assistance of counsel (IAC).

In this post, let's consider their discussion of ineffective assistance, first recounting what was said on the topic, followed by a few words about issues Grits wishes the committee would have addressed.

Hearing highlights: Levels of IAC 'very disconcerting'
Stacy Soule, the State Prosecuting Attorney told the committee the number of ineffective assistance cases being heard by the Texas Court of Criminal Appeals is "very disconcerting," warning legislators, "this is not something that's on the margins." By contrast, findings by the CCA of prosecutorial misconduct are relatively rare.

Soule predicted Texas will soon see cases where ineffectiveness is alleged based on defense attorneys failing to invoke the Michael Morton Act or examine the state's evidence.

Grits has heard the same thing, fwiw, particularly in jurisdictions where attorneys are given electronic access to discovery, which means prosecutors and judges can tell if they never bothered to access it. This apparently happens a good deal of the time. Eventually, that documentation may be used to claim attorneys were ineffective if they never downloaded discovery materials. Possibly, entire county systems could be held accountable if it could be proven they knew attorneys didn't look at discovery and kept hiring them to represent indigent clients, anyway. These were the thoughts running through my head as Grits listened to the SPA's testimony.

In that vein, our pal Shannon Edmonds, the Texas District and County Attorneys Association lobbyist, complained that prosecutors have had to hire additional staff to comply with the Michael Morton Act, only to find that many defense attorneys never seek to review it.

Edmonds suggested the Legislature change the law to make public any defense attorney's settlement over grievances with the state bar related to ineffective assistance claims, just as they did for prosecutors in response to misconduct allegations a few years ago. Grits would support that.

According to Soule, as of last week, the CCA had granted IAC relief in nearly 200 cases already this term, with a month left to go before it ends.

While offering no remedies for IAC, Soule suggested it was a big problem for prosecutors for the following reasons:

• may result in wrongful convictions
• takes a substantial toll on the judiciary's resources
• creates difficulties re-prosecuting old cases years later

"Ineffective assistance of counsel is a systemic and long lasting problem," Soule declared.

Linda Acevedo from the state bar disciplinary committee said the state bar doesn't typically sanction lawyers for ineffectiveness, except in cases where lawyers outright ignore or fail to communicate with their clients. In addition, there has been an uptick, she said, in cases where criminal-defense lawyers get involved in immigration cases, don't know what they're doing, and screw them up (my paraphrase) because they are "not competent" to work in the area.

Geoffrey Burkhart, the new head of  the Texas Indigent Defense Commission  who replaced Jim Bethke, told the committee that IAC isn't a "few bad apples" problem but is a systemic issue. (Grits' thought: Can't it be both? After all, bad apples spoil barrels.)

Burkhart said IAC generally boils down to two issues: "The no body problem and the warm body problem." As for the "no body problem," many criminal defendants still do not get counsel or do not get a lawyer soon enough in the process. In some counties, said Burkhart, appointment rates are as low as 10 percent.

The "warm body problem," he said, stems from (often flat) fees for indigent defense being so low that attorneys must work on volume. As a result, attorneys don't spend a lot of time on each case and begin to "jettison core defense tasks."

The Sixth Amendment is a "gateway right," said Burkhart, because without a lawyer one can't enforce one's other rights to due process, etc..

The Texas Indigent Defense commission can only formally audit and inspect a handful of counties each year, Burkhart noted, but in 17 years the agency has never once performed such inspections and found a county in compliance with the Fair Defense Act, he said. Because of that, he said, TIDC tries to play more of a collaborative role instead of taking a gotcha-mentality.

Chairman Joe Moody implied at one point that Texas' indigent defense funding mechanisms might be the subject of federal civil rights litigation based on equal-protection grounds: "You have a situation where you have a constitutional right that's being applied very differently based on where you're charged with a crime."

Notably absent from this portion of the hearing was the criminal-defense bar, who apparently don't mind letting prosecutors' representatives define their problems for state legislators.

Testimony the Committee should have received
Although it's possible she couldn't do so because of conflict with judicial duties (even though legislators won't legislate again until after she's off the court), I found myself wishing Judge Elsa Alcala had been invited to the hearing to testify. She's described in detail the structural barriers to challenging ineffective assistance in CCA dissents and concurrences, and recommended legislative action in response. In particular, she believes the Legislature should expand the right to counsel to include habeas writs, only for purposes of challenging ineffective assistance claims.

Grits would add that the Legislature should consider a remedy to the issues raised by the US Supreme Court's decision in Davila v. Davis, which held that lawyers' ineffective work on state habeas proceedings did not excuse a procedural default because there's no constitutional right to counsel in state habeas proceedings. IMO, there should be some way statutorily to ensure that ineffective lawyers don't prevent defendants from pursuing meritorious claims in state habeas proceedings. This hearing would have been a great opportunity to receive input on the question.

In a dissent to that case, joined by three other justices on SCOTUS, Justice Breyer pointed out the same problem with Texas IAC law in that case as Judge Alcala has been raising: State habeas corpus writs are the "first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial," and there's no right to counsel at that phase.

Given all this judicial interest - not just from the CCA but from SCOTUS - Grits was sure these issues would be considered at this hearing. But they never came up.

Grits also wished they'd had some law prof or researcher to provide some context to the numbers the State Prosecuting Attorney put out, about which Shannon Edmonds tried to imply that a handful of prosecutor misconduct cases or the few dozen IAC claims upheld by the Court of Criminal Appeals represented the entire universe of bad-lawyer behavior in the justice system. That's absurd, but the contention was allowed to stand un-rebutted.

In reality, there are dozens of hoops a case must get through before the CCA agrees to hear it, and many (in fact, by far, most) legitimately problematic cases of prosecutor misconduct and IAC never get that far.

Fort Worth Attorney Mike Ware, speaking of his work with the Innocence Project of Texas, meandered toward that point, telling the committee that IAC and prosecutor misconduct both are typically "hidden." DNA evidence might exonerate someone, he said, then when people looked back to say, "why was that person convicted?," they might find IAC or misconduct by a prosecutor. But without that needle-in-a-haystack discovery, no one would ever know.

That's the case in most instances, both of prosecutor misconduct and IAC. The few cases we see are examples of patterns which exist more broadly in the justice system, but only rarely show up in state appellate court opinions.  As with actual innocence cases, one should look at them much like a small statistical sample, each one representing many more unseen cases out in the world.

There are other aspects of ineffective assistance the committee should have addressed, not the least of which are high caseloads among attorneys appointed to represent indigent defendants. A recent Texas Tribune story found that, in Travis County, "the 10 private Austin-area attorneys with the most appointments handled an average of 533 cases in 2017." In Harris County, totals run even higher! The Texas Indigent Defense Commission has created excellent tools for analyzing these topics, so the issue is ripe for more detailed study.

The underfunding of indigent defense at this level amounts virtually to a structural guarantee of ineffective assistance. From a political perspective, this is not a bug, it's a feature. Texas' indigent defense systems were created, and most recently upgraded (2001), during a period of tuff-on-crime excess. They were designed to facilitate convictions, not to defend against them. After all, if defense lawyers were better, counties would need more prosecutors (who also have excessive caseloads), judges would have to respond to more motions, and court dockets would fluctuate considerably before reaching some new, for-now unpredictable equilibrium. Basically everything about the courts gets a little more expensive and everybody has to work a little harder.

That said, Grits doesn't buy complaints that indigent defense costs are an "unfunded mandate" from the state, any more than prosecutors' salaries are an "unfunded mandate." The budgetary arrangement for many decades in Texas has been that counties take care of funding local court and jail costs and the state pays for prisoners they send to TDCJ. I'm not against the state contributing more on indigent defense, but IMO it should only be done if counties pick up some of their share of the "unfunded mandates" running in the other direction in the form of long prison sentences, possibly through a cap and trade arrangement.

Underfunding indigent defense is a concern, and more funding must be part of any solution, but it's not happening in a vacuum, and it's not the only cause of ineffective assistance.

RELATED: Spotlight on ineffective assistance: Barriers to remedies

You can't prevent overdose deaths by scaring people into not calling 911

In 2015, Gov. Greg Abbott vetoed life saving "Good Samaritan" legislation that would have let people call 911 when their friends overdose without being prosecuted. But some states are going even further, prosecuting survivors for murder if they shared drugs with an overdose victim, the New York Times reported this week:

As overdose deaths mount, prosecutors are increasingly treating them as homicide scenes and looking to hold someone criminally accountable. Using laws devised to go after drug dealers, they are charging friends, partners and siblings. The accused include young people who shared drugs at a party and a son who gave his mother heroin after her pain medication had been cut off. Many are fellow users, themselves struggling with addiction. 

Such cases are becoming more common even as the role of the criminal justice system in combating drug abuse has become hotly contested, and even as many prosecutors — including those who pursue overdose death cases — say they embrace the push to treat addiction as a public health crisis rather than a crime.

This is pointless and has no public safety value whatsoever. All it does is make it less likely overdose victims will receive life saving medical treatment during the critical moments when it could help them. The War on Drugs has been such a miserable failure: It not only doesn't achieve any of its public safety goals, it largely seems to worsen public health outcomes.

RELATED: This academic article examines the role of coroners and medical examiners in charging overdose deaths as murder.

Video games spuriously blamed for school shooting violence

Lt. Gov. Dan Patrick wants to respond to the Santa Fe school shooting by cutting subsidies aimed at luring video game manufacturers to Texas on the grounds that they promote a culture of violence. “We have devalued life, whether it’s through abortion, whether it’s the breakup of families, through violent movies and particularly violent video games, which now outsell movies and music,” he told ABC News' George Stephonapoulos. Grits has a long record of respect for the Second Amendment,  but this seems like pure deflection: “We cannot sit back and say it’s the gun,” Patrick told ABC-News. The guns aren't to blame, but video games are? Huh.

Personally, Grits believes violent video games have contributed to crime reductions, and this article co-authored by a couple of Texas academics demonstrates why. (Bottom line: Kids spending hours honing video game skills don't have time to burglarize your house.) In 2012, the Washington Post reported that, "the United States has the highest firearm murder rate in the developed world. But other countries where video games are popular have much lower firearm-related murder rates."

RELATED: The Houston Chronicle published good commentary debunking this false meme about video games.

Rooting for Sterling Brown

My wife didn't previously know Milwaukee had an NBA team and couldn't pick Giannis Antetokounmpo out of a lineup. But the Sterling Brown case has caught her attention and fueled her outrage. Brown, a 6'6" shooting guard, was approached by a police officer for parking in a handicapped spot outside a Walgreens at 2 a.m.. Rather than ticket him and let him go, the officer called for backup and Brown was dragged to the ground, cuffed, and tazed. Brown himself isn't letting the issue go, and the statement by the Bucks on the case was exceptionally strong.

Seeing as Brown played at SMU in his college days, there's a vague Texas connection here. But as the missus' reaction demonstrates, this case appears poised to become culturally important beyond jurisdictional specifics.

Sports permeates aspects of the culture that a political protest on the same topics could never reach, which is why the NFL anthem protests have been such a source of controversy. One can choose to watch Fox News or MSNBC if you only want to hear political views from a narrow perspective. But sports media remain more catholic and largely transpartisan. If you want to watch Lebron James face the Celtics in Game 7 of the NBA's Eastern Conference finals tomorrow night, for example, whatever your political perspective, you're watching ESPN.

That means, for once, everyone sees the same narrative (thank heaven there was video!), and it's an ugly one: The kid cooperated, remained calm, was polite and respectful, complied with every request from police, and was tackled and tazed for his troubles.

My wife can't name a single, active NBA player beyond Lebron James, but now she knows who Sterling Brown is. And she's rooting for him.

Remembering Texas' now-defunct drug-task-force system

On Twitter, a reader came up with a blast from the past, asking whatever happened to Texas' multi-jurisdictional drug task forces, which I'd written about in two different public-policy reports back when I worked for the Texas ACLU, along with countless Grits posts in the mid-aughts:

• Too Far Off Task (2002), and
• Flawed Enforcement (2004)

The answer, long-time readers may recall, is that Gov. Rick Perry de-funded all of Texas' task multi-jurisdictional narcotics forces in 2006, shifting half the money to drug courts (and other types of specialty courts) and half to border security (this was the first pot of money spent to bolster border security in Texas on essentially nativist grounds).

This transition was the result of a multi-year campaign which began in the aftermath of the Tulia drug stings in 1999, an episode which in many ways marks the beginning of the modern criminal-justice reform movement in Texas.

The timeline went thusly: In 2005, the Legislature put the task forces under control of the Texas Department of Public Safety, which created rules to regulate them under the same strictures as DPS' own Narcotics Division. But the task forces balked at the new rules, in many cases openly defying the DPS commander in charge of them. And a year or so later, Gov. Perry simply chose to spend federal grant money on other priorities.

To my knowledge, Texas is the only state to get rid of its drug task forces on accountability grounds, and it's worth noting that the sky didn't fall. Indeed, hardly anyone who wasn't a grant recipient seemed to notice or care. Grits has maintained for years that other states should follow Texas' lead.

MORE: Check out a followup post.

On recidivism, abolitionism, diversion, zoning, and other criminal-justice stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused elsewhere:

Pam Colloff kicks ass
Pam Colloff's journalism pretty much defines excellence. All her stuff these days is (very) long form, so we don't get much of it. But when they come out, they demonstrate that Colloff is at the very top of her game, not to mention her profession. Read her latest from ProPublica/New York Times magazine.

Houston uses zoning to restrict offender services
Empower Texans first raised the alarm about the City of Houston using zoning to reduce access to halfway houses and reentry services within the city limits, and now In Justice Today has followed up with a more detailed explication. Bad form, this. The Legislature should consider eliminating cities' ability to restrict these locations. In the world of NIMBYism vs. public safety, public officials should take safety every time.

Praise ignores TX missteps on overdose policy
The Beaumont Enterprise says Texas is "finally getting it right" regarding opiod overdoses, but that's a dubious claim. The reference is to Attorney General Ken Paxton joining a lawsuit against opiod manufacturers. But Gov. Greg Abbott in 2015 vetoed life saving "Good Samaritan" legislation that would have encouraged people to call 911 when someone overdoses by protecting them against criminal charges. Moreover, the main thing needed to combat addiction is treatment, and the state's stalwart refusal to expand the Medicaid program has done more harm to addicts than any civil suit will protect them. That's giving General Paxton and other Texas state officials way too much credit.

McSpadden removed from capital case because of idiotic race comments
Grits criticized Judge Michael McSpadden's comments about defendants receiving advice from Black Lives Matter the day after they the first appeared in the press, and now his reactionary views have gotten him removed from a death penalty case to avoid the appearance of bias. Serves him right.

Bite me, Daubert
Bite mark evidence is junk science, but it's still being admitted as evidence in American courtrooms.

Most returning prisoners can't avoid arrest
A new Bureau of Justice Statistics analysis of recidivism data from 30 states found that, 83 percent of offender released in 2005 were arrested at least once over the next nine years. Of the 44 percent arrested "during the first year following release, nearly 9 in 10 (89%) were arrested again during the next 8 years." Fewer than one in five made it nine years without being arrested again. That said, one can be arrested for anything - in Texas, police can arrest motorists for Class C misdemeanor traffic offenses. So it'd be more helpful if the report included a) data on convictions and reincarceration and b) breakouts by offense type. What little we get of the latter indicates that only a fraction of arrests were for serious violent crimes.

Prosecutor elections the newest site for reform work
This Marshall Project story is correct that, in a very short period of time, prosecutor elections have become an important, contested site from criminal-justice reformers. Even when reform advocates lose - as happened in the Dallas Democratic primary - their participation shifts the conversation more squarely on reform topics that otherwise get little attention.

Considering abolitionism
Grits has never completely rejected the positions of prison abolitionists so much as I have avoided them - to me, we're a long way from when that conversation is ripe, certainly here in Texas. In a world where Lone-Star-State reformers have tried and failed for more than a decade just to reduce drug-possession penalties from a felony to a misdemeanor, such theoretical suggestions that we incarcerate no one have to me seemed premature. Why discuss whether people who commit violence should be incarcerated when the Legislature remains unconvinced that drug addicts shouldn't be caged? We struggle to win the "fewer prisons" argument, much less the "no prisons" argument. A couple of recent editorial offerings, however, at the Guardian and the Washington Post, challenge us to begin thinking with a post-prison mentality now. From the Post, "In the United States, 70 percent of our criminal sanctions consist of incarceration. That’s why it’s all we can think of. But a world that operates without an extensive reliance on prison is not a utopia; it is only a plane ride away. In Germany, incarceration is used for 6 percent of sanctions; in the Netherlands, it’s 10 percent, according to a 2013 Vera Institute report comparing our criminal-justice system with theirs."

Say it ain't so!
This new academic article on asset forfeiture suggests that, "Law enforcement agencies may be targeting the crimes that present the opportunity to raise revenue for their departments rather than the most serious public safety threats."

Evaluating prosecutor diversion programs
Here's one for the reading pile: A NIJ analysis of prosecutor-led diversion programs.

Lies, damn lies, and claims by counties about unfunded mandates on indigent defense

Officials in Tom Green County are telling the press and the public that the state owes counties some $2.6 billion for indigent defense costs dating back to 2001.

This is silly and utterly false.  The state of Texas in reality doesn't "owe" counties a dime for indigent defense and is not "in arrears." But when government officials repeat a lie often enough, folks begin to believe it. As it happens, I recently addressed this question in the comments, but since the meme is spreading, let's repeat what I said here:

The counties are calculating their increased costs post-Texas Fair Defense Act (2001) and claiming the state should pay for those. That's silly, for reasons I've discussed before. First, inflation and population increases account for much of the growth. The rest comes from counties being forced to provide counsel in cases where they SHOULD have done so before but were not adequately shouldering their responsibilities.

IMO the state should only agree to reimburse more to counties for indigent defense if counties agree to a cap and trade system to limit mass incarceration on the back end. 

The locals want to retain all the discretion and shift all the costs to the state, but that's not how politics works.

Reasonably Suspicious: The conservative case for reducing drug penalties, DWI arrests plummet, and other stories

Does God have a Texas accent? Mandy Marzullo and I address this and other pressing questions on the latest edition (May 2018) of Just Liberty's Reasonably Suspicious podcast. Give it a listen!

Here's what we discussed this month:

Top Stories

• Prosecutors flailing with Twin Peaks biker massacre cases.

Interview

• Scott talks to David Safavian of the American Conservative Union Foundation on why Texas should reduce penalties for low-level drug possession from a felony to a misdemeanor.

Suspicious Mysteries

• Why have the number of arrests for DWI and drunkenness plunged in Texas since 2010?

Death and Texas

• On the use of forensic hypnosis in death penalty cases.

Stop the Train

• Promoting Just Liberty's new decarceration campaign and jingle.

The Last Hurrah

• Russian troll farms most successful projects were Blue Lives Matter posts.
• With San Antonio launching a pilot program, what will it take to approve needle exchange programs in Texas?
• Texas' "subjugation rate" (the number of people in prison, jail, on probation and on parole) declined from 1 in 22 a decade ago to 1 in 41 today. What is the cause?

Find a transcript of the show below the jump.

You're getting sleepy, so you won't notice Texas is still using junk science like 'forensic hypnosis' in death penalty cases

Before reading the rest of this post, relax, breathe, and follow the swinging pocket watch.

Feeling suggestible? Great, now we can begin!

Junkiest of junk science
While Grits was out of pocket this last week, Lauren McGaughy of the Dallas News had a feature on forensic hypnosis in light of the looming execution of "Charles Don Flores, 48, [who] was convicted in the 1998 slaying of Elizabeth “Betty” Black after a neighbor was hypnotized to recall the features of two men she’d seen going into the victim’s Farmers Branch home the morning of the murder."

A Farmer's Branch police officer who'd never hypnotized anyone before failed to follow a number of mandatory requirements under Texas Court of Criminal Appeals jurisprudence in Zani v. Texas, and even those today seem absurdly outdated.

For more background, Mandy Marzullo and I discussed the case in the November episode of Just Liberty's Reasonably Suspicious podcast, and the Dallas Observer published a feature heavy on adumbration of the relevant court cases earlier this year. Those cases so far have all approved of forensic hypnosis. And Texas has the most robust regulatory structure in the country for a practice that to most informed people ranks on the level of psychics or palm readers when it comes  to sources of good evidence.

As Grits recounted in December, the Zani case allowed forensic hypnosis to go forward based on an understanding of human memory that science now considers rudimentary and false. From the majority opinion:

Proponents of the use of hypnosis to restore a crime victim's memory to facilitate his trial testimony, most notable of whom is Dr. Martin Reiser, a psychologist and forensic hypnotist with the Los Angeles Police Department, advocate a "videotape recorder" theory of human memory. By this theory the human mind is thought to receive and store in the subconscious every bit of data taken in by the senses. Hypnosis is regarded as a legitimate vehicle for tapping the subconscious to retrieve data recorded therein which has proven to be inaccessible to the subject's conscious memory.

As it turns out, the "videotape recorder" theory of human memory is hoakum. Junk. A.k.a., bullshit.

That's why, reported McGaughy, "According to a 2012 study, half of U.S. states now have "per se inadmissibility rules" barring hypnotically induced evidence in criminal cases."

Scientists now believe memories are recreated anew each time the brain retrieves them, Grits learned during debates over eyewitness identification practices. Moreover, memories are malleable, and Elizabeth Loftus has shown that they can be altered or even created through hypnosis.

Texas' new junk-science writ provides a new vehicle with which to test this antiquated junk science, which hasn't been considered by the Court of Criminal Appeals since 2004, the year before the creation of Texas' Forensic Science Commission.

Today, the practice has fallen out of favor at most agencies. "There are about two dozen forensic hypnotists in Texas at this time, the majority of whom serve in the Harris County Sheriff’s Office and Texas Rangers." That's down from 152 statewide in 1999, McGaughy reported.

There's been a lot of water under the bridge since 2004 regarding Texas' statutory and jurisprudential posture toward junk science. So Grits believes there's a decent chance the CCA could reverse their past position on this, perhaps (tea-leaf reading from afar) by as much as a 6-3 margin.

OTOH, the state just executed Juan Castillo without ever hearing arguments regarding whether recanted jailhouse informant testimony was significant enough to warrant a new trial. So it's always possible they'll do the same thing here, finding excuses to look past the issue in order to allow the machinery of death to lurch forward unimpeded.

A conundrum: Why capital cases are the best/worst vehicles for reforming bad practices
This brings up an odd conundrum with capital cases: The Texas public overwhelmingly supports the death penalty and has little sympathy for capital defendants. At the same time, death-penalty defendants frequently are the only indigent clients who get anything like a zealous defense throughout the appellate process, not to mention two experienced attorneys at trial.

So death-penalty cases often raise issues with broader implications for the justice system - e.g., the implications of allowing forensic hypnosis as evidence - just because enough lawyers focus on the case as time goes by to more thoroughly vet issues and raise problems. But they often feature unpopular defendants about whom the media may have been beating the drums for many years by the time problems in their case are examined. When I was with the state Innocence Project, even actually innocent defendants were typically unpopular in their home jurisdiction until the day of their exoneration, and sometimes even after that (ask Anthony Graves).

That's why Grits is sanguine, but not overly optimistic, that Texas' 19th-century conceptions of forensic hypnosis might be overthrown in the face of 21st century science. I believe if the issue were to come squarely before the CCA on the merits, forensic hypnosis would likely be dumped. But there are many ways the issue could avoid serious consideration and Mr. Flores still be executed, and unfortunately, that's not an unlikely outcome, either, if one were setting odds on where all this might lead.

Did Texas DPS 'border surge' cause DWI enforcement reduction?

A Grits commenter suggested a fascinating and viable theory regarding the source of radical reductions in DWI arrests across Texas in recent years:

a local judge that I know who oversees a DWI Court he has opined that DWI placements are way down in his jurisdiction and that he felt there was a correlation between the redeployment of local DPS troopers to the border. He said DPS made up the majority of their local DWI arrest. It would be interesting to see if there was any actual link between the border surge and decreases in local DWI arrest.

What do we think about this?

Grits was immediately reminded of a bout of reporting in 2015 detailing how DPS coverage in the rest of the state went down when the border surge began. As R.G. Ratcliffe wrote for Texas Monthly:

The [El Paso] Times' Marty Schladen reports that DPS warning tickets have increased since 2012 by 14.5 percent in border counties, which also saw a 13.5 percent decline in fatal accidents. During the same period, warning tickets elsewhere in Texas declined by 29.3 percent, while the number of fatal accidents increased by 6 percent. 

If the number of warning tickets in non-border-surge areas of the state declined 29% from 2012 to 2015, the idea that the same trend caused a statewide decline in DWI arrests (34% reduction from 2010-2016) doesn't seem far-fetched.

Grits doesn't immediately have enough information to confirm this hypothesis, but it fits more of the data points, not to mention the timeline, than most other possible explanations.

Meditating on misdemeanors, the human toll of prison understaffing, and other stories

Here are a few odds and ends that will simultaneously clear my browser tabs and point readers to a few interesting items about which I don't have time to blog now.

Latest Texas DNA exoneree denied testing for years
Congratulations to Texas' latest DNA exoneree, John Nolley, and thank you to the Tarrant DA Conviction Integrity Unit and our friends at the national Innocence Project for getting him out and clearing his name. For that matter, good for the Court of Criminal Appeals for finally overturning his conviction, though they did not join in proclaiming him actually innocent. If the Tarrant DA vouches for his innocence, however, he would be able to receive compensation, anyway, under the exception carved out for Anthony Graves. Notably, reported a local TV station, "After years of defense attorney attempts, a judge ordered that the DNA of Nolley be retested" once the DA's Conviction Integrity Unit was on board. So while that speaks well of the Tarrant Conviction Integrity Unit, CIU's are a recent phenomenon and only exist in a few counties. The case remains a black eye on a system that could not secure justice for Mr. Nolley through traditional mechanisms and speaks to the system's failure to adequately vet convictions without extraordinary interventions.

The human toll from prison understaffing: Telford Unit case study
At the Texas Tribune, Jolie McCullough performed a deep dive into the effects of extreme understaffing at the Telford Unit in New Boston, a problem which dramatically worsened after the murder of a guard in 2015. Understaffing creates problems both for staff and inmates, she reported, making things more dreadful and dangerous for both. The report comes on the heels of a story from USA Today about the deadly effects of prison understaffing in South Carolina - in that case from slashed budgets as opposed to the vicissitudes of labor economics.

Arrested for pot, raped in jail

This young mother's story sounds like a living nightmare.

Ramsey-unit quota scheme on inmate discipline revealed
TDCJ is reviewing inmate disciplinary cases at the Ramsey Unit after it was revealed a captain there had implemented a quota system requiring minimum numbers of disciplinary reports. This is another Keri Blakinger scoop from the Houston Chronicle. Jennifer Erschabek from the Texas Inmate Family Association was quoted in the story saying, "One of the biggest complaints we have from family members is that an officer has written a bogus case and there's no way for people to fight that because it becomes a he said-he said type of situation and an inmate has no recourse."

'My life as an execution witness'
The Houston Chronicle has an interview with former TDCJ spokesperson Michelle Lyons about her new book chronicling her experience witnessing more than 200 executions over the course of her career.

Meditating on misdemeanors
Edward Spillane, a municipal court judge in College Station, has an interesting article in the University of Chicago magazine titled, "The Meditative Judge," in which he discusses issues of "mindfulness" and what he's learned applying meditative focus methods on his misdemeanor court docket. He believes that, "A mindful focus on individual defendants in the courtroom can allow judges to contribute to large-scale reform. Applying punishments mechanically actually creates criminal justice failures. A focus on the present allows a judge to gain more insight into each defendant and serve the best interests of everyone in his or her court."

AG pitch on revenge porn a PR move

Mark Bennett has written how some folks simply can't believe the US Supreme Court meant what it's said in rulings about protected speech, and apparently Attorney General Ken Paxton is one of them. His office filed an amicus brief with the 12th Court of Appeals seeking to overturn their ruling that Texas' revenge-porn law is unconstitutional. (Bennett appears unfazed.) I'm not a lawyer, but Grits predicts this effort will be futile: Way too little, too late, that ship has long-ago sailed. This is more about positioning oneself in a culture-war debate, with little relation to the legal questions at stake. IRL, the AG needed to win earlier cases declaring "improper photography" or "online solicitation of a minor" unconstitutional if they wanted Texas courts to reject the First Amendment doctrines at stake, which themselves rely on long-established SCOTUS 1A interpretations that Texas probably couldn't buck, anyway. (Bennett has also maintained that the statute against online impersonation fails on the same grounds.) But now that the Court of Criminal Appeals has, multiple times, unanimously adopted precisely the reasoning upon which the 12th Court is relying, it's hard to imagine how a rehearing would make any difference. Which means that, since the AG's motion got press, he has already achieved his goals.

Reyna doubling down on dubious Twin Peaks cases
The original Twin Peaks cases are being dismissed but McLennan County DA Abel Reyna is doubling down and recharging a couple dozen defendants on charges of murder and rioting. At this point, it seems unlikely Reyna will be in office when these new cases finally get their day in court, so it's hard to say if this is pure grandstanding. But past reports indicated that everyone actually involved in the shootout that day is dead, either from a biker enemy's bullet or at the hands of a police sniper. If that's true, the murder charges seem spurious and the rioting charges dubious. But IMO we probably can't trust official pronouncements on these questions until Reyna is out of office.

Sacerdotal schooling for inmate preachers
The seminary at TDCJ's Darrington Unit for prisoners with very-long sentences who go on to serve as ministers throughout the Texas prison system just had its fourth graduation, and the Houston Chronicle's Keri Blakinger had a report.

Jade Helm taught Russian trolls how to divide Americans

"Blue Lives Matter" posts were the most successful progeny of Russian troll farms during the 2016 presidential election, The Daily Beast reported recently. In related news, the Jade Helm controversy to which Gov. Greg Abbott responded by assigning the Texas State Guard to "monitor" federal troops also turned out to be a fabrication of Russian internet trolls. And our governor fell for it.

Medicine is the best medicine
The best approach to combating addiction is treatment, not incarceration. So it's not surprising that Virginia has discovered that expanding Medicaid is the best way to combat the opiod epidemic and rising overdose deaths. The program pays for treatment which may otherwise only be accessed by indigent people if they're arrested and ordered into treatment as a punishment.