TX DPS ends freebie crime-lab services for law enforcement

Local governments complain near incessantly in Texas of "unfunded mandates" imposed on them by state government, but almost never acknowledge the unfunded mandates that operate in the other direction. For example, as Grits wrote in February:

The most important unfunded mandate in the criminal-justice system comes from local government decision makers - especially prosecutors and judges - making choices about imprisonment at TDCJ for which state government must pay 100 percent of the costs. So there's a political incentive for locals to demagogue as "tough on crime" and maximize use of prison because they aren't accountable for the expense of incarceration. And many of them, particularly in rural jurisdictions, gleefully succumb to that incentive.

Another big unfunded mandate from the locals to the state historically has been a longstanding requirement that DPS crime labs perform forensics for local agencies for free. Grits has been editorializing about the unsustainability of this model for several years. But now, DPS has announced it will require locals to pay for the services, albeit at discounted rates. This will be a big change, and will cause more than a few hiccups during the transition.

Larger agencies either have their own labs or have money to contract out, so the burden of this change will fall more harshly on rural and smaller agencies. And at the moment, many of those agencies - hundreds of them, in fact - don't have forensics budgets at all because they've always relied on DPS. (What they'll do until their jurisdictions get around to passing a new budget will be anybody's guess.)

There will be much weeping and gnashing of teeth over this change, but a socialized market for forensic services for too long has encouraged their overuse. If instead, local agencies must chip in for part of the cost, over time they will likely prioritize cases with the greatest impact on public safety and eschew the petty stuff.

That sort of use of discretion based on cost-benefit analysis is a good thing. We arguably need more of it in the justice system; the utility of the give-em-a-blank-check model has long ago reached its limits.

What is the upshot of TDCJ heat litigation injunction?

Hard to know the full implications, yet, but the issuance of injunctive relief by a federal district judge in favor of inmates complaining of un-air-conditioned housing in TDCJ's Wallace Pack Unit surely changes the terms of debate surrounding heat-related deaths of Texas prisoners. See coverage from the Houston Chronicle and the judge's 100+ page order.

It's hard to know the implications for several reasons. First, the ruling only applies to one TDCJ unit, not all of them, and Grits is unclear of how this ruling might affect other facilities. Is it a one-off that only applies to the Pack unit, or will TDCJ be forced to adopt similar remedial measures to similarly situated inmates in other facilities?

Also, the judge's ruling that air conditioning must be supplied only applies to heat-sensitive inmates - i.e., inmates who are elderly, disabled, or who have special needs. It does not apply to younger, able-bodied inmates who are housed at the facility to do the work.

Still, it's going to apply to a lot of folks. From the ruling:

The parties stipulated that, as of September 18, 2014, the Pack Unit contained 728 men with hypertension (high blood pressure), 212 men with diabetes, 142 men with coronary artery disease, 111 obese men, 53 men with a psychiatric condition, 66 men prescribed an anti-psychotic medication, 22 men with cirrhosis of the liver, 84 men with chronic obstructive pulmonary disorder (“COPD”), 189 with thyroid dysfunction, and 113 with asthma. There are 188 men in the Pack Unit over the age of 65. Id. Many of these conditions overlap within one person. However, all of the conditions, individually, cause heat sensitivity[.]

If everybody with a psychiatric condition, everyone taking mental health meds, everyone with asthma, everyone over age 65, etc., all require air conditioning, TDCJ will find itself facing similar issues in dozens of facilities across the state.

It was also interesting to note that the judge believes some of TDCJ's heat mitigation methods are counterproductive. Fans used when the heat index surpasses 95 degrees Fahrenheit, for example, just blow hot air onto inmates and worsen the problem. Similarly, misters like those restaurants sometimes use to cool off patrons are less effective in prisons where they can't cover much area and over time actually serve to increase the humidity.

One interesting suggestion has arisen. Texas county jails overbuilt based on speculation that the mass incarceration boom would go on forever, and those facilities are air conditioned as required by state law and regulations by the Texas Commission on Jail Standards. The County Judge in Newton County has already suggested that TDCJ inmates could be housed in his facility.

This thought, though not a terrible idea, raises its own set of issues. First, Grits wouldn't support shifting inmates to county contracts unless the state simultaneously moved to close un-air-conditioned state-run units. I wouldn't want to see this plan become a back-door means to raising capacity during an era when we should continue cutting it.

Second, because many of the inmates subject to the injunction are special needs inmates, there'd need to be expanded training and maybe additional hiring of more qualified jailers and support staff in order to handle TDCJ's sick and elderly, which is a quite different demographic of inmate than those who routinely cycle through county jails. I'm not certain most local facilities are able to handle them, and extremely rural sites like in Newton County may not have access to medical and mental-health supports that inmates with special needs might require.

Still, if TDCJ moved special needs inmates to air-conditioned county facilities, ensured they received adequate medical and mental-health care, and closed some state-owned prison units that couldn't be retrofitted with A/C, Grits can think of worse outcomes.

All that said, like the federal judge, Grits believes TDCJ is vastly overstating the costs to upgrade the Pack unit to add A/C. So when the real numbers are acknowledged, it may be cheapest and most efficient just to improve the facility and continue to treat elderly and disabled inmates where they are. If the agency can provide air conditioning for their hogs, they can do so for sick and elderly inmates.

Finally, all this depends on what the 5th Circuit does in response to the state's appeal. They have upheld injunctive relief in other prisoner-heat cases but insisted it be cabined to inmates with special heat-sensitivity issues. This ruling tracks that reasoning pretty closely, but the makeup of the 5th Circuit could change soon and there's no way to predict what mood they'll be in when they consider the case. And if the case ended up with cert granted at the US Supreme Court, your correspondent wouldn't be particularly surprised.

Don't eliminate field tests without tracking outcomes from officer discretion

Cheap and unreliable field tests for drugs have caused hundreds of false convictions in Houston and elsewhere. But it's unclear if eliminating the tests will result in better outcomes. Officer discretion will likely be even more problematic and discriminatory.

The department decided to end the tests not because they're notoriously unreliable but because they fear an officer will come into contact with the drug fentanyl and overdose. So the policy is reactionary and rather spur-of-the-moment, not taking into account the possible effects on wrongful convictions.

It will be some time before we know whether officers make errors identifying drugs more often than the field tests. Houston PD should track those outcomes so we will know.

Until then, the Texas Forensic Science Commission has been charged with studying the field test issue and reporting back to the legislature by Dec. 1, 2018 with recommendations. That's a welcome development. The FSC should specifically examine whether officer discretion makes more errors than field tests, to the extent possible. And if they can't tell, they should propose experimentation that would determine the question.

It would have been nice had such research occurred before changing policies, but instead, once again, law enforcement is leaping before looking.

Black folks jailed longer, junk-science-writ scholarship, and other stories

Grits has a busy week, but here are a few odds and ends of which Grits readers should be aware:

When officers are indicted
The Balch Spring police officer who shot and killed Jordan Edwards has been indicted. However, these cases against law enforcement officers are notoriously difficult to win. In Arlington, two jail guards involved in the death of an inmate caught on video received sentences of deferred adjudication and just one year on probation. MORE: The Texas Tribune offered up a feature on the rarity of police-officer indictments or even on-the-job punishment related to fatal shootings in Texas. RELATED: From the Marshall Project, "White America's Unshakeable Confidence in the Police."

Black folks jailed longer in Travis
A new study of the Travis County Jail commissioned by Grassroots Leadership found that black folks stay in jail longer than whites when charged with the same or similar offenses. See coverage from the Austin Statesman.

Scholarship re: Texas' junk science writ
Here's a new academic paper that goes on Grits' to-read list comparing Texas' junk science writ with a similar law in California, vetting the language of both.

States ban some in-court witness IDs 
Massachusetts and Connecticut have banned in-court eyewitness identifications when defendants had not previously known the subject or ID'd them in an out-of-court procedure. That's a really good reform. Texas should consider it, especially since our current standards aren't keeping problematic IDs from being presented to juries.

Rural woes driving incarceration
Rural jurisdictions are now driving mass incarceration's upward trajectory to a greater extent than their urban counterparts, with high incarceration rates in rural counties while rates in urban and suburban counties are declining. The Wall Street Journal dug into into rural America's underlying problems driving crime rates there, which run deeper than just a lock-em-up mentality among their prosecutors.

Best practices for crime prevention
Police Chief magazine published a feature detailing nine evidence-based crime-prevention strategies based on "best practices on crime control and prevention for law enforcement executives based on what is known from research."

Texas jailhouse-snitch reforms praised

The New York Times over the weekend (7/15) had a staff editorial praising the latest reforms in Texas aimed at reining in the use of jailhouse informants, part of the Lone Star State's latest round of innocence legislation passed earlier this year (HB 34). The article opened:

Prosecutors love jailhouse informants who can provide damning testimony that a cellmate privately confessed to a crime. Jailhouse informants, in turn, love the perks they get in exchange for snitching, like shortened sentences, immunity from prosecution or a wad of cash.

As you might imagine, though, in a market driven by such questionable motives, the testimony these informants provide is often unreliable. 

Even worse, it can be deadly. False testimony from jailhouse informants has been the single biggest reason for death-row exonerations in the modern death-penalty era, according to a 2005 survey by the Center on Wrongful Convictions. They accounted for 50 of the 111 exonerations to that point, and there have been 48 more exonerations since then. 

Last month, Texas, which has been a minefield of wrongful convictions — more than 300 in the last 30 years alone — passed the most comprehensive effort yet to rein in the dangers of transactional snitching.

We discussed this new law in the top story of the latest Just Liberty podcast. Here's how the Times described it:

The new law requires prosecutors to keep thorough records of all jailhouse informants they use — the nature of their testimony, the benefits they received and their criminal history. This information must be disclosed to defense lawyers, who may use it in court to challenge the informant’s reliability or honesty, particularly if the informant has testified in other cases. 

The law was recommended by a state commission established in 2015 to examine exonerations and reduce the chances of wrongful convictions. The commission also persuaded lawmakers to require procedures to reduce the number of mistaken eyewitness identifications and to require that police interrogations be recorded — smart steps toward a fairer and more accurate justice system.

This is the third piece of significant informant reform legislation passed by the Texas Lege in the 21st century. The first, a requirement for corroboration of informant testimony in undercover drug stings, passed in 2001 in the wake of an ugly batch of racist false convictions arising out of the Tulia drug stings. Gov. Rick Perry eventually pardoned 35 defendants, and the episode led to a five-year campaign which ultimately convinced the Governor to de-fund Texas' drug-task force system entirely.

Then in 2009, the first session your correspondent was Policy Director for the Innocence Project of Texas, the Lege passed a corroboration requirement for jailhouse informant testimony. (This has been particularly important in cases where flawed forensics were coupled with jailhouse snitch testimony to secure false convictions.) The following session, the Michael Morton Act strengthened disclosure requirements for prosecutors in ways that specifically implicated informant testimony. Plus, Texas has seen other informant-related legislation - e.g., allowing for pretrial reliability hearings regarding compensated informant testimony - which was filed and debated but never made it through the gauntlet.

So when the Exoneration Review Commission tapped law prof Alexandra "Sasha" Natapoff - whose work has informed Grits' advocacy on these issues for more than a decade - to advise them on needed informant reforms, that culminated many years' efforts educating legislators on problems with and failures by the informant system. It wasn't just some pop-up surprise in an otherwise dreary session.

Fixing problems with informants requires long-term work; there are few short-term reform fixes in a criminal-justice system this vast and unwieldy. Indeed, in the long run, the cultural shift advocated in the close of the Times editorial is without question the most important reform possible, if also the most difficult to achieve:

[M]aking evidence admissible at trial only goes so far. The vast majority of convictions are the result of guilty pleas, which means a defendant may not even find out that an informant was paid to incriminate him before having to decide whether to accept a plea offer. 

Some states have begun to require that judges hold hearings to test an informant’s reliability, much as they would test an expert witness’s knowledge — before the jury can hear from him. 

But the deeper fix that’s needed is a cultural one. Many prosecutors are far too willing to present testimony from people they would never trustunder ordinary circumstances. Until prosecutors are more concerned with doing justice than with winning convictions, even the most well-intentioned laws will fall short.

MORE: From the Dallas Morning News.

Of journalists, drunks, lamp posts, and Year-To-Date crime data

A note to my journalist friends: Can we please dispense with news stories featuring "year to date" crime statistics, murder rates, shootings of and by police officers, etc.? The Houston Chronicle had a feature this week citing a supposedly declining murder total from the year-to-date data, after two successive years of growth in that crime category.  I'm not picking on them especially; lots of people in the MSM do it. But the practice reflects a philistine view of math and crime trends that uses data as a drunk uses a lamp post: For support rather than illumination. It should stop.

Criminologist Jerry Ratcliffe, using data from Philadelphia, has shown why these trend predictions, especially when conducted mid-year or earlier, have little if any probative value.

To use calendar YTD comparisons with any confidence, we have to wait until the end of October before we can be more than 50% confident that the year-to-date is indicative of how we will enter the New Year. And even then we still have to be cautious. There was a chance at the end of November 2010 that we would end the year with fewer homicides, though the eventual count crept into increase territory.

The bottom line is that with crimes such as homicide, we need not necessarily worry about crime panics at the beginning of the year. This isn’t to say we should ever get complacent and of course every homicide is one too many; however the likely trend will only become clear by the autumn.

Frequently, real, long-term trends cannot be divulged from crime data until years have passed because of lags in reporting, differences between jurisdictional challenges and practices, and a wide array of variables which may drive different trends at different places and times (sometimes cyclically, as with summertime crime increases, and sometimes episodically, based on specific situations like the opiod and meth epidemics or drug cartel trafficking patterns). The less common the crime, the more time is needed before data may be meaningfully interpreted.

Murders, like shootings of police officers, are uncommon occurrences where small numerical changes can result in big spikes and troughs in annual totals, particularly when one is looking only at one city our county. And because datasets are small, error rates are high when predictions or assumptions are based on them. Your correspondent was taught that truism 30 years ago when I first began writing about these topics and was warned repeatedly by experts and editors not to overstate crime data. And that was in an era now known for promoting "tough on crime" memes and an if-it-bleeds-it-leads mentality in the press. But those lessons about data seem to have been lost. I see these YTD stories all the time, on a number of different topics involving small numbers of rare occurrences where they make little sense.

Perhaps expert analyses like Prof. Ratcliffe's can help re-familiarize reporters with the limits of and problems with using these year-to-date datasets to say murders (or police officer deaths, or other rare occurrences) are rising or falling. You can write at the end of the year about increases or decreases, but because of inherent limitations in the data, especially at the city level, these year-to-date comparisons probably misinform more than they illuminate. That's particularly true because the stories where they purport to go up are hyped much more than articles like the one in the Chron estimating that the murder total will be lower this year.

My fear is that these year-to-date stories are too easy for journalists to cease; the lamp post provides too much support for shoddy journalism and simplistic thinking, filling a vacuum where more probative data and expert knowledge suffer from gaps. So Grits isn't sanguine that most of the drunken journalists leaning against the street lamp in this metaphor will be able to stand on their own two feet, much less that they'll soon turn their faces toward the light.

Blain: 'What does actual police reform look like?'

Charles Blain of the Restore Justice project at Empower Texans has a column in The Hill posing the question, "What does actual police reform look like? More training and more oversight." Blain represents the grassroots conservative wing of the party represented by the Freedom Caucus in the Texas House and Lt. Gov. Dan Patrick in the senate. So what does police reform look like from that perspective?

For starters, he wants more "purposeful training."

In some states, like New York, California, and North Carolina, obtaining a barber’s license requires more hours of training than to become a sworn officer 

In Louisiana becoming an officer takes less training than becoming a manicurist.

Blain also suggests that, "local governments should fully embrace independent police oversight boards giving civilians have a voice in policing." Further, "Out of 18,000 police departments in the country, only about 200 have an independent or civilian oversight board," he lamented. Blain offered up this unusual (for a conservative) discussion of the benefits of a civilian review board:

Two persistent problems on many oversight boards are the scope of authority entrusted to them and the requirements for civilians to participate. 

In Texas alone, the scope of authority for boards in major cities spans across the spectrum. In San Antonio, the Chief’s Advisory Action Board has the ability to interview officers before making a recommendation for disciplinary action to the chief. 

Dallas’ review board is authorized to hire investigators, take sworn testimony, and subpoena witnesses. Houston’s operates largely in private and only takes cases referred to them by the internal affairs bureau of the department. 

Many of the boards require members to have extensive background in policing, law, or criminal justice, which excludes much of the community whose concerns they are meant to address. 

Civilian boards need power, resources and autonomy to be as effective as possible.

Blain embraced body cameras. And although he recognizes the public policy problems with how they've been implemented, including in Texas, he punted on prescribing what good policies might look like:

Policies determine when the officer has the discretion to turn the camera on or off, how regularly it must be charged, if the data on it is subject to public information, the officer’s ability to review it prior to making a statement on an incident, chain of custody for the camera, and policy regarding data retention and manipulation just to name a few. 

Without a sound policy, body worn and dash cameras don’t serve their intended purpose.

He recommended customizable apps to facilitate public engagement, and use of ShotSpotter technology to identify the sources of gunshots.

Grits appreciates Mr. Blain's taking a first stab at thinking through policies that might constitute "actual police reform." But your correspondent would be remiss if I didn't point out that "actual" reform must go further than these proposals or it will be ineffective and fail.

For starters, Grits simply disagrees that civilian review boards can ever be an effective check on police misconduct no matter what their structure. I'm unaware of any such review board anywhere in the country which has achieved the goals of reform activists who got them created. (When I was Police Accountability Project Director of the ACLU of Texas from 2000 to 2006, this was basically my beat.)

Think about it: What does the public demand when an officer shoots someone improperly or engages in misconduct? His or her termination or reprimand. Yet those are precisely the things civilian review boards cannot do. At most they only advise and that advice is routinely and easily ignored because the structure of the police disciplinary process insulates decision makers from being accountable for outcomes - they can typically only be held accountable for complying with the process. Civilian review boards are structurally not capable of satisfying public concern over these issues and may help provide political cover for misconduct when they are weak and ineffectual, which is all the time.

The power to discipline and fire police officers cannot be wrested from departments and even if  it could, that would be a bad idea. Instead, management's ability to enforce rules must be strengthened at the expense of labor. Even when one does not fully trust police management, the best play for police accountability activists is to seek to empower them vis a vis the union.

Re: Training. More is fine, but what's really needed is for police department policies to change to emphasize deescalation, then to retrain on those policies. More training on the sort of cowboy-style shoot-em-up methods taught by a lot of modern training consultants isn't going to help much. Policies and practices must change, then more training will help.

On body cameras, the transparency/privacy questions must be answered because, as presently constituted in Texas, body camera footage for the most part is secret unless a law enforcement agency decides releasing it will somehow help them, thanks to a terrible law passed by Sen. Royce West in 2015. Texas must roll back that thicket of thick-headedness before body cameras will be a true reform measure here.

Finally, some of the most important police accountability measures needed aren't broached in Blain's column. In a column in 2011, Grits identified a few of them:

Transparency: Independent, aggressive press oversight, as a practical matter, is MUCH more effective than any civilian oversight mechanism I've ever heard of, anywhere. Civil service cities like Houston have most of their disciplinary records closed unless officers are severely disciplined (more than two days suspension), and then only summary information is public. So, for example, in Dallas or El Paso, which never opted into the civil service code, reporters get a LOT more information on police misconduct than Houston or other civil service cities, and it really shows in their coverage, particularly at the Dallas News. Easily the most effective change to improve police oversight in Houston and other civil service cities, without costing the taxpayers a dime, would simply be to re-open police disciplinary files; hundreds of non-civil service cities and every Texas Sheriff operate just fine under the Public Information Act, and so would civil service cities if they were brought back under its umbrella. 

Another key, too-often neglected transparency issue: Former Harris County DA Johnny Holmes and the Texas Supreme Court, abetted by the Legislature after the fact, gutted the Law Enforcement exception (Govt Code 552.108) to the Public Information Act in Holmes v. Morales. State Rep. Harold Dutton still carries a bill (see here) every session to change the standard back to what it what from the inception of the Open Records Act until that episode. This change was pivotal, casting a thick blanket of secrecy over information which had been public for decades. If we don't fix the transparency problem - both reinvigorating the law enforcement exception and re-opening disciplinary files in civil service cities - IMO all other "solutions" will founder. 

Accounting for Misconduct in Promotions: Then-state Rep. Chuy Hinojosa filed a bill back in 2001 that never went anywhere but which would have required sustained misconduct to be counted against officers when considering them for promotions, see here. I've always thought that would give a lot more oomph to internal disciplinary decisions than is currently the case and potentially play a big preventive role. 

Bolstering Disciplinary Decisions: The biggest problem with the civil service code regarding police misconduct at Texas police departments is that, too often, fired officers too often don't stay fired. The state could require civil service cities to have a "Uniform Disciplinary Matrix," which is a pre-set array of punishments available for different types of misconduct. This helps prevent arbitrators from overturning punishments when they comply with the disciplinary matrix, including indefinite suspensions/terminations, establishing what's a reasonable punishment as a matter of policy instead of letting the arbitrator make an arbitrary determination after the fact in each case. (See the discussion here.)

There are also an array of special protections in for misbehaving officers in the state civil service code which need to be reformed. And additional provisions limiting accountability are sprinkled throughout meet and confer agreements between local municipalities and police unions. These are all important sites for reform work.

There are other ideas which Blain could have mentioned, including one Restore Justice supported during the legislative session: Eliminating arrests for Class C non-jailable offenses. Arrests are dangerous for both officers and suspects and this reform would reduce their number by more than ten percent.

This is not an exhaustive list, but it's more complete than Mr. Blain's offering in The Hill. There's no sense in limiting the array of possible reforms on the front end, nor in repeating mistakes of the past. See the solutions page at Campaign Zero for more reform ideas.

NRA afraid to confront 'real threat' to Second Amendment

Bravo, Radley Balko!

[The National Rifle Association] is the group that claims to be the only thing preventing the government from obliterating the Second Amendment, yet they’re noticeably quiet about the people doing the most violence to the Second Amendment — the armed, badge-wearing government employees we call law enforcement officers. For all the NRA’s dire warnings about government gun confiscation, the real, tangible threat to gun-owning Americans today comes not from gun-grabbing bureaucrats but from door-bashing law enforcement officers who think they’re at war — who are too often trained to view the people they serve not as citizens with rights but as potential threats. Here, the NRA just doesn’t want to get involved. ...

[T]he NRA’s allegiance to law enforcement has made the NRA indifferent to the ways that police tactics, use-of-force policy and police training violate the rights of gun owners (and those perceived to be carrying guns). And as with most bad criminal-justice policy, the laws, policies and training disproportionately violate the rights of blacks and Latinos — and the NRA is indifferent to that, too. The group does itself no favors when its figurehead spouts lazy, racist dog-whistles; when its aforementioned record of criticizing ATF goes silent when the agency’s aggressive tactics are aimed at minority neighborhoods. 

Preach, brother!

Perverse incentives created by police overtime for court appearances

The Texas Court of Criminal Appeals last month issued an opinion in Ex Parte Mark Bowman, with a dissent from Judge Elsa Alcala, that caught Grits' eye - not because of the issues being decided in the case but thanks to the underlying fact pattern evinced in the discussion.

At issue was a 2004 DWI in Houston and whether the defense counsel was alleged to be ineffective. The evidence of counsel's ineffectiveness? Because of Houston PD overtime rules, the officer had an incentive to arrest people for DWI even if the cases were later dismissed because he received time-and-a-half for the hours he spent in court.

The officer, William Lindsey, testified that members of the DWI task force were "paid overtime, time-and-a-half" for all hours spent in court, giving him a personal financial motive to go to court whether or not an arrest is legitimate. In the prior year, he said, he'd made 476 DWI arrests.

In his habeas writ, the defendant was able to show that Officer Lindsey, from 1992 to 2004, made more money from combined overtime pay than he did from his regular salary. According to the majority opinion, "In the first eleven months of 2004 - the year of Appellant's first DWI arrest - Lindsey earned a total of $145,957, of which only $63,924 was regular salary while $82,032 was paid overtime."

For a while, Lindsey was the highest paid officer in the city. He retired after reporters began to question the situation in 2006. (See contemporary Grits coverage.)

Three criminal defense lawyers, including Doug Murphy, a DWI specialist, testified that failure to secure details about Lindsey's economic incentives amounted to ineffective assistance.  From Murphy's affidavit:

It is common knowledge among lawyers in Harris County who regularly handle DWI cases during Lindsey's tenure on the DWI Task Force that he arrested many people in affluent parts of southwest Houston - regardless of how well they performed the field sobriety tests or how sober they appeared to be on videotape - so he could obtain overtime pay for appearing in court pursuant to a subpoena to testify at their trials. Competent defense lawyers made Public Information Act requests to HPD to obtain Lindsey's payroll records before they tried DWI cases in which he would testify.

Further, wrote Mr. Murphy:

Defense lawyers would present this evidence on cross-examination to demonstrate Lindsey's motive for making the arrest. They typically would argue that Lindsey arrested sober drivers for DWI because he knew that they would go to trial and he would receive overtime pay for appearing in court to testify; that, for this reason, he gave no driver the benefit of the doubt at the scene; that, in effect, he received three days of pay for appearing at a two-day trial; that he received the money even if the defendant were acquitted; and that his overtime pay exceeded his regular pay during his tenure on the task force. Arguments of this nature frequently persuaded juries to reject Lindsey's opinion regarding intoxication.

The other two attorneys' affidavits included essentially similar comments.

A Houston Chronicle story from July 1, 2006* mentioned a "memo ... from a traffic enforcement captain warning that officers were scheming to have themselves unnecessarily placed on court dockets to inflate their overtime totals." So these allegations were coming from HPD brass, not just defense lawyers or the media.

Let's leave aside for a moment the question of whether defense counsel was ineffective, which is the focus of the two opinions. Grits instead wants to raise other questions: Is it good public policy for police officers to have an incentive to make dubious arrests so they can get overtime to show up in court? If testifying is part of a police officer's job, why can't they do it during regular work hours? Is there a way to pay for court time that doesn't contribute counterproductive incentives?

In Austin, the meet and confer agreement (Art. 8, Sec. 3) specifies particularly generous extra pay for time spent in court. For example, an officer who attends court for more than one hour prior to the start of the work day gets credit for a minimum four hours of overtime. Similarly, officers who go to court after work receive a minimum of four hours overtime no matter how long they stay there. So if an officer gets off at 5, goes to court at 5:15, and is out by 5:50, they'd be compensated for four hours at time-and-a-half.

Such pay structures give incentives for police to arrest on trumped up charges so they can justify spending time in court and making time-and-a-half. Such incentives can result in false convictions, particularly when counsel is ineffective or nonexistent. That seems like a more important takeaway for me, anyway, than the ineffective assistance questions at the heart of the debate between the judges over Mr. Bowman's habeas writ.

*No public link: Accessed via subscriber-only Houston Chronicle archives.

Roundup: Bail reform all about the judges, and other stories

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

5th Circuit: Government can't be held accountable in false convictions cases
The US 5th Circuit Court of Appeals really doesn't want the government held accountable for false convictions. Grits mentioned the other day a case where they said a plea by an innocent man meant he couldn't sue for damages. (An alert reader pointed me to this academic article on the underlying topic.) But they've also recently ruled that even "grossly negligent" forensic scientists can't be held accountable in a wrongful conviction case.

Bail reform still all about the judges
Federal District Judge Lee Rosenthal sounds unimpressed with Harris County's proposed bail fixes, pointing out that if the judges themselves don't change their practices, all will be for naught. Grits has been ringing this bell for many years.

State jail slated for closure subsidized local utility bills
Here's a good example why it's hard to close prison units, even when prison populations go down. It turns out, the city of Bartlett received one third of its city revenue from the Bartlett State Jail, mainly in utility bills which will now go up for all other consumers. This will be true in lots of rural jurisdictions. Prisons are water hogs and are often the largest customer for rural water producers. That's no good reason not to close them, though.

Balko on new specialty courts for Texas cops with PTSD, mental health problems
At the Washington Post, Radley Balko has a good discussion of new Texas legislation creating a specialty court for police officers who commit crimes.  Just a thought: If there are so many cops walking around with PTSD or serious mental illnesses, shouldn't the response be to require departments to identify them and provide support beforehand than just to wait till something bad happens and then give them leniency through some special cop court. What a wrong-headed proposal. Grits doubts many counties will crate the new courts, which are a) optional and b) unfunded.

Rural counties driving overincarceration
Though this article doesn't mention Texas, the problem of rural overincarceration - at the county jail level and also the rate at which counties send people to prison. Most of the incarceration reductions which have allowed Texas to close eight prisons in recent years are coming from the ten or so most populous counties, all of which have witnessed substantial crime reductions over the last decade.

Maybe prohibition is the wrong tool for the job
Treating opiod producers the way plaintiffs lawyers treated Big Tobacco is the best way to combat the opiod epidemic. Ramping up the war on drugs has not and will not worked. As Mark Osler wrote in Forbes recently, the enemy in the drug war is a market, not a group of people. And market forces trump legal abstractions every day of the week and twice on Sunday.

False charges of assaulting public servant often mask misconduct
Grits the other day mentioned two examples of people beaten by law enforcement who were charged with assaulting a police officer and pled guilty, only to be later found actually innocent. I could have added the case of Jerome Bartee, who was beaten by three jailers in the Harris County Jail then charged with assaulting a public servant, a third-degree felony. Those charges were dropped four days after his defense lawyer received a copy of a video recording the incident. Now imagine if a) there were no video and b) charges against Mr. Bartee were a second degree felony under the new law, meaning he'd face up to 20 years in prison. Lots of people would plead guilty to avoid that risk, especially if exculpatory evidence is suppressed or simply unavailable. When your correspondent was Policy Director for the Innocence Project of Texas, I met plenty of people who pled guilty to avoid a longer sentence and were later proven actually innocent. This is how false convictions occur, people.

On the future(s) of nonprofit journalism

When Evan Smith launched the Texas Tribune and nonprofits like Politico and Pro Publica popped up on the journalistic landscape, Grits wasn't surprised. It seemed to me at the time like the logical extension of where journalism must go, or risk an ignominious death by per-click advertising methods. The economic basis that historically paid for journalism has evaporated, but not the need for the public good being provided.

In the alternative, rich folks can either buy a media outlet - like Jeff Bezos purchasing the Washington Post - or subsidize them through tax deductions. But nobody needs to know what's going on in the world more than people in charge of large institutions. So I've long expected the nonprofit sector to step up to fill this public-ed gap; Grits didn't expect to ever reach a point where there'd be NO news.

Ten or 15 years ago, media mavens fantasized that blogs like this one would help fill the gap. Occasionally what happens on Grits is mistaken for journalism for one simple reason: I'm writing about issues that aren't well covered in the MSM and so sometimes an advocate must perform journalistic functions just to lay out a problem, potential solutions, etc.. Your correspondent was blessed in his youth to enjoy some brief-if-formative journalistic experience and learn a few skills. But journalism is a job and if nobody's paying anyone to do it, it generally won't get done. The volume of blogging on Grits goes up and down inversely proportionate to the workload at my paid gig, and that means it's hard for blogs to be a consistent, reliable source of news. Plus, to be clear for what must be the thousandth time, I'm not a neutral source. What you read here are (hopefully) well-informed editorials, for the most part, and only, at most, incidentally "news."

Grits for a while had hopes for the SCOTUSBlog model, where professionals in an issue area - in this case lawyers who practice before the US Supreme Court - finance journalism to fill gaps which professionals need filled. But that project remains unique. In the areas to which I pay attention, there aren't many if any comparable projects. Most actors in the criminal-justice system would prefer journalists NOT cover their activities, given their druthers.

The Marshall Project was the first nonprofit media outlet I'm aware of to focus on a single, broad issue area - criminal justice - by almost quaintly combining the traditional nonprofit and journalism models: Hire a newsroom and run it like the newsrooms of old, just with a donation-based revenue apparatus. The Texas Tribune does this in Texas, as do ProPublica and Politico at the national level: Grits thinks of this model as "Journalism as Charity Case."

What I didn't anticipate was what Grits now perhaps optimistically sees as the next wave of the nonprofit journalism trend: Nonprofits in a specific issue area hiring established professional journalists to cover an under-covered topic - not as communications directors or public relations experts, but as journalists, frequently in collaboration with or even edited by established media outlets.

The first example where I was aware of this was Sam Gross' National Exoneration Registry. Prof. Gross hired Maurice Possley, a Pulitzer Prize winning journalist from the Chicago Tribune who himself had broken important innocence stories. Their site is essentially a journalistic function.

There have been other isolated examples. When in 2015, the Legislature created a new Texas data source to identify police shootings, the Charles Koch Foundation funded veteran crime-beat journalist, UT graduate student, and Grits contributor Eva Ruth Moravec to write a series of investigative reports on police shootings of unarmed people. Moravec's Point of Impact series (she's still in the middle of producing it) has been published in three major Texas dailies, bringing to light important stories which otherwise would not have been covered in depth. (Full disclosure: your correspondent introduced Ms. Moravec to the Koch Foundation people after I spoke at one of their events in 2015. From all I know, it's been a productive partnership.)

But the good folks at the Fair Punishment Project - a project of the Harvard Law School - are taking that model to the next level. They've hired a small clutch of journalists to cover issues related to prosecutors in national publications.

Admittedly, prosecutors are an under-covered topic. (The pfocus must please Prof. Pfaff.) But it's also an oddly myopic lens through which to view a justice system that at times may veer away from justice but is ever and always a system, which means multiple parts coordinated. The prosecutor is an important player, but not the only important one. To name another: Judges are incredibly under-covered, too, considering how powerful they are. E.g., no journalists routinely cover Texas Court of Criminal Appeals decisions. Indeed, more than a couple of CCA judges have told me that Grits' coverage of the court is superior to all of the MSM's. (That's damning with faint praise, something being better than nothing.)

Parole boards,  probation departments, county jails, misdemeanor courts, debtors-prison practices: Many parts of the criminal-justice system remain under-covered, in part because it's so decentralized and locally based - a national story based on a million local stories. FPP has chosen perhaps the most opaque aspect of the justice system to shine a light on, so more power to them. But it's an interesting and non-obvious choice - a national-in-scope journalism project aimed primarily at local actors.

In addition to their own blog (and hey, doesn't every third as%#ole have his own blog?), the Fair Punishment Project has entered into collaborations with Slate, in a series called Trials and Error, and Medium (a site embodying Twitter founder Evan Williams' vision of the media's future) for a feature series titled In Justice Today. But the journalists are employed by a nonprofit advocacy organization. (FP has offices in Houston, D.C., and presumably elsewhere - their office phone has a Raleigh, N.C. area code.)

There has always been a version of nonprofit reporting. Your correspondent has written many, many "reports" for various nonprofits over the last three decades which at the end of the day were glorified investigative journalism projects with a tad longer timelines, more footnotes, and depending on the client, better or worse production values. Such publications are produced to fill gaps in journalism that for-profit reporters would otherwise never fill and one of their functions is to secure "earned media" or "earned coverage" of this or that topic, as well as to educate MSM reporters in hopes that they'll pick up the ball. Whether nonprofits call folks writing such documents "journalists," journalism is what's going on. I've known more than a few ex-reporters who've become somebody's research director which, like communications director, can be a logical extension of the same skill set.

But those are examples of hiring journalists to be something else. Harvard's Fair Punishment Project has hired journalists to perform journalism alongside a more traditional advocacy program. The group has also hired a team of lawyers whom their website says is "helping to create a fair and accountable justice system through legal action, public discourse, and educational initiatives." Asked to describe their non-journalism work in a declarative sentence, FPP's Jessica Brand told me via text that, "We provide academic research on criminal-justice reforms players with power can implement to reduce incarceration and make the system more fair."

My sense is that journalists may struggle at first under these employment scenarios. The targets of their reporting will be less likely to help them compared to MSM journalists who are likely to print DA quotes uncritically and move on to the next story. They will have to develop sources and methods to workaround such stonewalling and still honestly portray the challenges facing prosecutors, who may understandably hesitate to talk to them on hot-button topics. And FPP must perform this work without the advantages of local beat reporters, who have better access to human intelligence. It's not an impossible task, but FPP journalists will have to work harder than their peers to produce a quality product because of the topic they've chosen.

OTOH, prosecutors are for the most part only telling reporters whatever PR-driven message they want the public to hear, not necessarily what the public needs to know. And the get-a-quote model of modern journalism can make journalists lazy and cause them to stop once they get it. Coming at the task from an advocacy stance may just eliminate the pretense, which in turn could force FPP journalists to more routinely take the more difficult path of investigative reporting and records-based documentation. At least, that's been your correspondent's experience regarding advocacy-based reportage.

Regardless, I'm glad they're doing the work. Today, about half as many professional journalists are employed in America compared to when Grits left college. There just aren't as many warm bodies covering news as when our parents picked up a paper in past generations. Grits was created 13 years ago to help plug that gap,* which has thankfully grown a tad less yawning since I started out. So I'm particularly thankful to see others attempting to step into the space on my issue areas and am glad folks are testing a variety of different models. The good ones will be replicated, new institutions will develop, and with a little luck, that's how 21st century journalism survives.

*Prior to creating Grits, from 1997-2004 your correspondent operated a website on police reform, first as the "Austin Police Department Hall of Shame" and then expanding to a statewide focus as the "Texas Police Reform Center." That site was hand-coded in html, for a long time uploaded via dial-up, and predated the era of blog-commenting software. This was all done as a hobby/personal project.

Suggestions to maximize usefulness of CCA argument video

The Texas Court of Criminal Appeals will finally get cameras in the courtroom, reported the Austin Statesman, at least for purposes of recording public oral arguments. Grits disagrees with Judge Keller, who in the past opposed cameras for the CCA, that the measure of their importance will be how many people watch the videos. More important is that they are available upon demand when needed for individuals researching the court and issues before it. Grits probably won't watch all the arguments live, for example, but I'll go back and look at them when I'm covering a case, and the same goes for journalists, attorneys, legislative staff, and others with occasional-but-not-constant needs to monitor the court.

To that end, Grits would suggest a simple means to maximize the video's usefulness:

For starters, each argument's video should be presented separately. If there are two or three arguments heard in a day, segment out each of them for ease of use. Don't make us fast forward through the first case to get to the second one. Plus, if they're segmented out they could be linked on the case-page with all the briefs and opinions.

Similarly, for each recorded argument, the court should create an index declaring when discussion began, listing the attorneys and who they represent, and providing a time-stamp for when each lawyer took the microphone. That way, someone who wants to review the defense argument in a case or hear what the prosecutor had to say can find it quickly without watching the whole thing.

Watching Court of Criminal Appeals arguments will never become a popular pastime for most Texans. But they'll become more accessible if you don't have to physically go to the capitol complex to listen to them, and a marginal improvement in transparency is what to expect here, not some silver bullet.

Two questions and a comment as CA ends driver-license suspensions for nonpayment of traffic tickets

In California, a reader alerts me, the Legislature ended driver license suspensions as punishment for unpaid traffic fines because a government analysis convinced the governor and lawmakers that, “There does not appear to be a strong connection” between the license suspensions and collection rates.

That's certainly appeared to be the case in Texas with driver licenses suspended for unpaid Driver Responsibility surcharges and/or unpaid traffic fines. At this point, suspensions represent around 10 percent of drivers, mitigated only slightly in recent years by a one-time DRP amnesty and a stingy-but-at-least-existent indigence program (which this blog helped secure along with our allies at the Texas Fair Defense Project back in the day).

To this news, Grits has two questions and a comment:

Question One: Grits would love to know precisely what analysis was performed to convince revenue-hungry legislators that suspensions weren't successful at coercing payment from drivers. I think it's true, based on the huge number of drivers in Texas whose suspensions have lasted for many years, sometimes more than a decade. But my supposition is an inference from the data, not a proof. If someone concocted a proof, I want to know what it was so we replicate it for Texas.

Question Two: Among the arguments that convinced legislators to support this bill, one of the most persuasive was that "losing the ability to drive to work can prevent people from earning money and actually make low-income drivers less likely to pay fines." Was this quantified? Can it be quantified? If that dynamic could be demonstrated from the data, and particularly Texas-specific data, I think it would be persuasive for legislators who are currently on the fence regarding license suspensions and the Driver Responsibility program.

The closest I've seen was a 2006 study out of New Jersey, which has the only other DRP similar to Texas'. As Grits pointed out in this 2010 post, 

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

Regrettably, I've never seen that study replicated elsewhere and certainly nobody in Texas has tried to perform anything like it.

We've got a year-and-a-half until the Texas Legislature meets again, so now's the time for this research to be performed before the DRP-abolition effort ramps up again in 2019. Maybe it exists and Grits just hasn't seen it, in which case, shame on me. But if these are things done specifically from California's data, I'd like to know how they were done and if they were replicable.

And now the comment:

In California, according to the above-linked AP article, as of March, "488,000 people had suspended driver's licenses for unpaid traffic tickets or missing court appearances." And Golden-State legislators considered this a big problem they needed to confront.

In Texas, more than 2 million people have had their licenses suspended for nonpayment of Driver Responsibility Program surcharges, with 2/3 of them unable to get them back. Some of these debtors have now gone without licenses for more than a decade, most of them continuing to drive. Even more people's licenses have been suspended for nonpayment of traditional traffic fines. (Hard to estimate because there is crossover between these groups: Emily Gerrick of the Texas Fair Defense Project estimated that, if DRP surcharge debts were eliminated, roughly half of those folks would still have suspended licenses because of unpaid traffic tickets, while others had their licenses suspended for tickets but never incurred surcharges.)

Texas has about 60 percent of California's population, but by comparison our driver-license suspensions are through the roof. Their lawmakers felt the need to nip the problem in the bud long before it got remotely as bad as the situation is here. By contrast, Texas state leaders have allowed this mess to fester for more than a decade! However you want to look at it, Texas' massive volume of suspended licenses speaks far more to the failures of government than its former licensees.

We're approaching a point where such a large critical mass of Texas drivers do not have official credentials because of criminal-justice debt that not having a driver's license becomes a norm for average working people. I hear Americans critique Mexico for tolerating large black markets and unofficial transactions, but that's exactly what happens when Americans can't get the official ID one needs to participate in public life in the 21st century. (E.g., every transaction shifts to cash because credit card companies won't issue credit and no one will take a check without ID.) Grits can't understand why this isn't being treated like the self-inflicted public-safety crisis that it truly is.

The Golden State's experiment will show us whether revenue drops because this extra, administrative punishment is removed. My bet is it won't. Hell, revenue in Texas from traffic tickets barely dropped when the number of tickets issued plunged! ("The number of [new] Class C arrest warrants dropped 42 percent from 2011 to 2013, for example, rising slightly thereafter. Revenue from municipal courts, however, only dropped 3.1 percent from 2011 to 2013.") I'm betting those collections stay pretty consistent. Most people whose licenses are suspended would keep it from happening if they possibly could, they just can't afford to pay their debts to the government.

Grits won't hold my breath, but this issue would look great as a last-minute addition to the special session call. In California, the problem got fixed because the Governor showed leadership. In Texas, a lack of gubernatorial leadership is precisely one of the reasons we haven't come close to solving the same problem.

RELATED: Time for 'Jubilee' on criminal-justice debt.

5th Circuit adds injury to insult for innocent victims of police coercion

When the Texas Legislature "enhanced" penalties for already-enhanced offenses of assaulting a peace officer, Grits warned that the change in the law would increase pressure on innocent defendants to plead guilty to false charges, as happened to Carlos Flores in San Antonio.

Now, another example arises out of Brownsville where a defendant, George Alvarez, pled guilty to false charges of assaulting a jailer to avoid the risk of a much longer sentence at trial. Later, it was discovered that the jailer assaulted Mr. Alvarez, not the other way around. Nobody from the government disclosed evidence to the defense of the jailer's misconduct, so Mr. Alvarez accepted a plea bargain which, following an unsuccessful probation stint, resulted in an 8-year prison sentence. When the evidence was later revealed, the Texas Court of Criminal Appeals declared him "actually innocent."

George Alvarez sued upon his exoneration and a federal jury awarded him $2 million. But a 3-judge panel from the US 5th Circuit Court of Appeals overturned their verdict, declaring in a pique of sophistry that, because he pled guilty, the government had no constitutional duty under Brady v. Maryland to disclose exculpatory evidence to the defense.

In other words: Because the government successfully lied to the defense and to the courts and coerced an innocent defendant into pleading guilty to false charges, the 5th Circuit says they just get away with it and can't be held responsible for the fraud perpetrated on the defendant and the convicting court. That seems ripe for appeal to the US Supreme Court, or at least an en banc ruling from the full 5th Circuit.

This example demonstrates why HB 2908, creating new, super-enhancements for assaulting police officers, will inevitably increase pressure on defendants like Mr. Alvarez and Mr. Flores to accept false convictions and plea guilty to things they did not do. After all, they've been successfully framed! At that point, pleading guilty to false charges may be the only way they can avoid additional decades in prison on top of their beatings or other civil rights violations they may have already undergone.

And now, when defendants make that lamentable but inevitably rational decision to plea, they will simultaneously give up their right to seek redress in federal court for the wrong done to them, if this reprehensible ruling is allowed to stand.

To recap: Not only did most of the major reform bills aimed at preventing police misconduct fail this year at the Texas Legislature, one of the biggest hammers used to coerce guilty pleas from innocent defendants victimized by misconduct was doubled in size. Then the 5th Circuit said that, when the state succeeds in coercing defendants in that fashion, they can avoid liability entirely for framing an innocent defendant.

What a terrible run for victims of police misconduct in Texas these last couple of months. The repercussions will be felt for years to come.

Time for 'Jubilee' on criminal-justice debt

Ten years ago today, as part of coverage from a conference on restorative justice, Grits published a blog post suggesting that modern policymakers embrace the biblical concept of "Jubilee" - the elimination of debts, not to mention the freeing of slaves and prisoners, mandated in the Old Testament once every 50 years. In the New Testament, Christ and His apostles embraced and promoted the concept.

Part of the bible verse which first introduced the Jubilee tradition is actually inscribed on the Liberty Bell in Philadelphia:

And he shall hallow the fiftieth year, and proclaim liberty throughout all the land unto all the inhabitants thereof: it shall be a jubilee unto you; and ye shall return every man unto his possession, and ye shall return every man unto his family (Leviticus 25.10, KJV)

Grits does not imagine any instance where a modern, 21st century government would embrace Isaiah's Jubilee dictate of "opening of the prison to them that are bound," even if it may be warranted for all but the most dangerous offenders. But the idea of debt forgiveness within the justice system is certainly a valid one, starting with criminal justice debt.

Unpaid tickets, fines, Driver Responsibility surcharges - these can linger for years and cause immense social and economic harm. For example, recently the Travis County Attorney made headlines by trying to collect old debt from thirty years ago. Is there really a strong argument that such debt shouldn't periodically be Jubilee'd away?

When prosecutors have too much time on their hands, and other stories

Here are a few odds and ends of which Grits readers should be aware, even if your correspondent hasn't had time to focus as much as one might like on the blog in recent weeks:

Too many prosecutors with time on their hands
Travis County keeps old misdemeanor arrest warrants on the books that are 30 years old or more. For what possible purpose, one wonders? The story arises because, with the number of hot-check cases rapidly declining, prosecutors in the hot-check division don't have anything better to do and have begun to try to collect on these old cases. Maybe the County Attorney should just reduce staffing in that division commensurate with the decline in caseload instead of sending them on fishing expeditions for old unpaid tickets. Just a thought.

Quis Custodiet Ipsos Custodes
A police officer in Dallas has been indicted for an on-duty shooting for the first time in 43 years. But an indictment is one thing, conviction another. In Fort Worth, charges were dismissed against a cop who shot a man holding a barbecue fork after the original charges resulted in a mistrial. The state trooper indicted for perjury after Sandra Bland's arrest and death in the Waller County Jail, but charges were dropped this week. Not only is it difficult to prosecute bad cops, it can be damn hard to fire them: In San Antonio, a once-before-fired officer who'd been returned to the force by an arbitrator, was once again given his job back through arbitration after he'd fled the scene of a crime where his gun was used to shoot someone and a bag of cocaine was found in his truck. He failed to report his involvement to his supervisors and misled investigators at the scene, but was let back on the force. About the only way Texas cops are ever successfully prosecuted is if the feds do it, like with this guy.

Bill death doesn't halt bail reform
Texas legislation to require courts to use risk assessments when setting  bail amounts died this year as an industry which has in essence captured its regulators demonstrably exercised control over the legislative process. But arguments against the practice aren't going away and neither is the bail litigation in Harris County, which looks like it could end up at the US Supreme Court before all is done. As evidenced in the next item, Texas' hasn't fared well there, recently, fwiw.

Texas cases defined SCOTUS capital punishment debate this year
Commentators from the left and right all agree that Texas cases - especially ones where the Court of Criminal Appeals has embarrassed the state over reactionary, reflexively pro-government rulings that fly in the face of reason and common sense - are more or less defining the terms of debate over the death penalty these days at the US Supreme Court.

Forensic (not-quite) Science Update
How much science is in forensic science? Less than you think. But the tuff-on-crime crowd clings to unscientific (or more accurately, pre-scientific) reliance on longstanding forensic practices with higher-than-zero false positive rates, many of which have been portrayed as all but foolproof in courtrooms across America. This podcast gives a good overview of recent federal developments and their implications.

Holiday Reading
Here are a couple of academic articles  Grits has downloaded and intends to read over the July 4th holiday:

• A Holistic Framework to Aid Responsible Plea Bargaining by Prosecutors
• Public Trust and Police Deception

An Equal Protection Parable Out of Commerce, TX

The story of Miss Black Texas' arrest for being called a "black bitch" by an influential white guy in Commerce, TX shows how, red state or blue, the terms of debate surrounding policing and the justice system are changing. In particular, the public is less likely to acquiesce in the heretofore-accepted reality that the role of police and the courts - especially in small towns - are as much protector of privilege and power as life and property. (We have equal protection under the law, it's been famously said, so that the rich and poor are forbidden equally from stealing bread and sleeping under bridges.) It also represents a moment of empowered populism, when exoneration by the government for official misconduct could not redeem perpetrators in the eyes of their constituents or preserve the positions of power they allegedly abused.

Here are the basics:  A local school-board trustee in Commerce, Michael Beane, was teaching his too-young-to-drive 14-year-old daughter how to drive in a Walmart parking lot in a black pickup truck. She couldn't handle the vehicle and began swerving and driving erratically. Carmen Ponder, a beauty queen who at the time was interning at the Hunt County District Attorney's office, drove around the underage driver and exchanged opinions with the father - she told him the girl was too young to drive and he allegedly called her a "black bitch" (he denies the "black" part, so is happy to own his misogyny but denies racism, fwiw).

When Ponder came out of the Walmart, the school trustee, his daughter, and another white guy - who turned out to be Commerce Police Chief Kerry Crews, off duty and in plain clothes - stopped her and demanded an apology for her behavior (maneuvering around and away from the swerving 14-year-old driver). They wouldn't let her leave until uniformed officers arrived and the police chief had her arrested. Their exchange was all recorded on store video and corroborates Ms. Ponder's account to a T. You can watch it here; the young woman couldn't have behaved in a classier nor more appropriate fashion. But they hauled her off in chains, anyway.

The City of Commerce reportedly investigated the incident and declared the chief had done nothing wrong, but for once, "official" exoneration didn't sway public opinion. Even if it was the school trustee, not the chief, who allegedly made the "black bitch" comment, it was clear from the video (and the reaction of the local establishment after the fact) that Crews had picked his side by demanding Ponder apologize to the alleged racist road rager from the local school board. Not long after the city manager declared Crews officially blameless, the police chief and the school-board trustee both resigned, insinuating they had been victimized by the Black Lives Matter movement.

The police chief insisted he wasn't motivated by race when arresting Ponder but instead, apparently without self-reflection, was acting out a scene starring Cartman from the cartoon series South Park, who popularized the pretend-cop dictum, "Respect My Authoritah!" (“It had nothing to do with her race or gender or anything other than what I felt was her disrespect of my position as an officer and as the police chief,” Crews said in his statement resigning from his post.) The city manager, doubling down on his contention that the chief was in the right, kicked Crews upstairs, naming him assistant city manager and thus retaining his authority over the department.

Neither Beane nor Crews, much less the Commerce city manager (Crews' boss, then and now), expressed concern for any victimization Ms. Ponder may have felt, one notices throughout the press coverage in which they complain of their victimization. After all, black people in East Texas are surely used to false arrests and take them in stride, right? [/sarcasm] Her life was disrupted by false allegations and unlike her antagonists, she was actually taken to jail for it. (Charges were later dropped.) But these asshats want to portray themselves as the victims! Infuriating.

Grits finds the contents of Ponder's story unremarkable - anyone who has worked on police reform issues as long as I have has heard many dozens such stories, frequently with as much or more corroboration as Ms. Ponder brings to the table. Rather, what's remarkable is that public disapprobation for Crews' and Beane's behavior proved more powerful than their friends in officialdom and among local elites, who would have let the incident pass with a wink and a nod.

For Crews, a small-town police chief in East Texas, it was obvious whose side he should take in a dispute between a white elected official and a young black student in a sweatshirt. He didn't seek out her side of the story or investigate because, in his world, the fact that his friend, the white official, would prevail was inevitable. So he demanded an apology, probably thinking in his own twisted way that he was doing Ponder a favor by giving her a chance not to be arrested. After, all, a politically powerful white man was angry! In towns like Commerce, it's ever been thus. Meanwhile Ms. Ponder rightly felt her assailants were owed no apology, standing up for herself with courage and aplomb.

Michael Beane and Kerry Crews's abuse of power in their interactions with Carmen Ponder was in truth entirely unremarkable in every respect except the outcome - a harsh public backlash which made it untenable for the men to continue in their official roles. And that makes it as remarkable and extraordinary a policing parable as this writer has heard out of East Texas in a many a year.

Rethinking criminal punishment: UT professor's new book

It's time to change the way that criminals are punished in the American criminal justice system, argues William R. Kelly in his latest book, "From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice."

"For decades, we've been asking, 'What is the crime committed, and how much punishment do they deserve?'" said Kelly in a recent interview. "We're saying, ask a different question: 'How do we keep them from coming back?'"

This is the third book authored by Kelly, a University of Texas professor and director of the university's Center for Criminology and Criminal Justice Research, and his first collaboration. Contributing authors were U.S. District Judge Robert Pitman, a former U.S. Attorney, and Dr. William Streusand, a psychiatrist.

In the book, the trio gives evidence of what Kelly calls the "clear, understandable relationship" between criminality and factors like mental health, substance abuse, intellectual deficits and neurocognitive impairment. These issues are largely unaddressed in the current punishment process, but Kelly says that understanding them could keep people from committing new crimes.

"Some people need to be punished, but many don't," Kelly said. "Our proposal is for an independent panel of experts to screen and assess offenders as they come into the system and make determinations in part based on their risk of re-offending."

The closest existing example of the concept is diversion courts such as mental health or drug courts, which require lots of resources and typically have small caseloads. Kelly said it's also not unusual for criminals to have more than one problem - mental health and substance abuse, for example - and his concept would address them all.

 Kelly said the book is conceptual and "big-picture stuff," meant for professional stakeholders involved in the criminal justice system. "It's almost like we're presenting a challenge: Here is what the evidence says is the way to do things. Who's going to get on board?"

What follows is excerpted from Kelly's latest book.

* * * 

Excerpt From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice,
Rowman and Littlefield, June 2017

William R. Kelly

Robert Pitman

William Streusand

Since the early 1970s, American criminal justice policy has had a nearly singular focus—the relentless pursuit of punishment. From Congress to state legislatures to local city and county governments, the mission was clear and deliberate.

The problem is that despite all the appeal, logic, and common sense, punishment doesn’t work. How could we have been so wrong? Why has severe punishment not done the trick? The answer is quite simple: The vast majority of criminal offenders have multiple disorders, deficits, impairments, and conditions that are fundamentally related to their criminal behavior, which punishment does nothing to change. These are not excuses. They are reasons for criminality. How does incarceration fix bipolar disorder or executive dysfunction due to traumatic brain injury? How does a stint in jail solve addiction to drugs or raise one’s IQ? Most of us have no idea what growing up in an environment of poverty and violence is like or what impacts it can have on cognitive development, mental health, substance abuse, and engaging in risky behavior. However, there is nothing in tough or attempts to address them. We have put nearly all of our eggs in the punishment basket. But the evidence is clear—that is the wrong basket.

All told, tough-on-crime policies and the war on drugs have drained roughly $2 trillion of public money. Recent research puts the annual price tag of crime, including direct criminal justice costs as well as a variety of collateral costs, at $1 trillion. The recidivism rate over this period has hovered north of 65 percent. We suggest it is impossible to conclude that this is a reasonable return on investment.

One of the fundamental points of departure we propose is that we are asking the wrong questions. What we currently do leads to the reflexive question of how much punishment. As we consider the variety of mental health, substance abuse, and intellectual and neurocognitive disorders, impairments, and deficits that many justice-involved offenders have, we hope it will become clear that we need to rethink how we go about the business of criminal justice, of dealing with people who commit bad acts but do so at least in part because of psychiatric, intellectual, and neurocognitive disorders and impairments. We should ask a different question—what will it take to reduce the likelihood that this individual will reoffend?

We are not proposing a massive get-out-of-jail-free program. What we know is that criminal prosecution and punishment is not productive in cases like these. We propose an alternative that focuses less on blameworthiness and more on the severity of any disorders, impairments, and deficits, and that shifts attention away from retribution to recidivism reduction.

There is plenty of blame to go around for our high recidivism rates. Much of it is on the offender. But it doesn’t (and shouldn’t) stop there. It is important that the government (including elected officials, policymakers, prosecutors, judges, and corrections officials, among others) recognizes its role and accepts its share of responsibility for the revolving door of the justice system. We assert that for most eligible cases (individuals with significant mental health and substance use disorders and/or neurocognitive and intellectual deficits and impairments), the best way to reduce the probability of recidivism is by diverting appropriate individuals into community-based programs focused on evidence-based behavioral change coupled with risk management strategies.

We propose that a new, formal diversionary option be added to the criminal justice system, in which the expertise of a variety of professionals be brought to bear both on the identification of individuals appropriate for diversion and on the development and implementation of programs to keep them out of the traditional correctional system in the long run. We propose a system that includes a more formalized sorting process with defined criteria and the involvement of not only prosecutors but also experts in a variety of relevant disciplines. These experts, acting as a team and following an established protocol, would be presented with offenders whose offense conduct and background suggest that they might be candidates for diversion from prosecution. These teams would make assessments early in the process—post-arrest but typically pre-indictment. And they would have the ability to make a recommendation to the prosecuting authority that an appropriate individual be put on a different path from the one that would otherwise lead to incarceration or simply punishment, one that would involve a program of treatment and supervision appropriate to their needs. Likewise, we propose that the programs to which offenders are diverted be interdisciplinary and separately funded from prosecuting authorities to ensure that minimizing recidivism remains at the core of their mission. We maintain there is strong reason to believe that fully funded programs run by experts in the field using evidence-based programs and practices have the prospect of substantially lowering recidivism rates.

We have attempted to imagine a criminal justice system that, as an alternative to the reflexive and expensive incarceration of offenders or punitive supervision and control, effectively addresses some of the underlying drivers of criminal behavior, resulting in fewer people reoffending. The optimal goal of any system of punishment should be the return of an offender to the status of a law-abiding citizen. The evidence is clear that the way to do that for hundreds of thousands of offenders is through concerted, evidence-based rehabilitation. Second, there is an obvious economy to identifying offenders who can be diverted from incarceration at the outset (initial savings) and given the treatment or other means to stay out of prison forever (ultimate savings). To continue to incarcerate hundreds of thousands of nonviolent offenders without asking whether, in light of the role of significant disorders, impairments, and deficits, we might use established expertise and resources to address the issues underlying their behavior, would be both unjust and fiscally imprudent.