Wednesday, November 22, 2017

Spotlight on ineffective assistance: Barriers to remedies

Texas State Rep. Gene Wu once said to me there were three categories of professionals - attorneys, doctors, and engineers - who could do immense damage to people when they badly screw up.

He's right. Despite that, in the criminal justice realm, ineffective assistance of counsel  - in essence, a defendant's legal claim that their attorney did a bad job - remains a bit of a backwater issue. That's in part because the reform community tends to be defense oriented, and in part because its true frequency is hard to document. But it's also because the government is complicit in ineffective assistance by underfunding indigent defense, so there's a bit of a wink-and-a-nod arrangement for merely lazy as opposed to actively harmful representation.

Even so, for indigent defendants with appointed counsel and few choices, shoddy defense lawyering can have a huge impact on their lives. In the November episode of Just Liberty's "Reasonably Suspicious" podcast, Amanda Marzullo of the Texas Defender Service and I discussed some of the sources of and remedies for ineffective assistance of counsel. The first segment discusses the Texas House Criminal Jurisprudence Committee's pending study of ineffective assistance as part of an "interim charge." The second segment discusses a Texas death penalty case, Ayestas v. Davis, which was recently argued at SCOTUS and which relates to resources available to death row defendants in the 5th Circuit to investigate ineffective assistance claims. Between them, the two segments highlight some obscure procedural barriers to defendants who've been victimized by ineffective assistance and potential legislative solutions. Give it a listen:


Find a transcript of our discussion below the jump. And if you've ever been represented by a good lawyer, as the holiday weekend approaches, be thankful.

Tuesday, November 21, 2017

The amazing lengths to which the Texas CCA will go to ignore police misconduct and uphold dubious convictions

Here's a crazy case out of Harris County: The Government-Always-Wins faction on the Texas Court of Criminal Appeals wrangled a four-member plurality on a habeas corpus writ to overturn the trial court's recommendation and uphold a conviction in which law enforcement misrepresented the weight of drugs found on a defendant, calling it 26 kilos when the real amount of actual cocaine was likely less than a gram.

The reason for the discrepancy: A police officer stole the drugs and replaced them with sheetrock powder laced with cocaine so it would trigger a field test. While the defense stipulated Mr. Pena  intended to transport cocaine, we don’t really know how much because the cop stole it before they ever got to weigh it.

The case continues the CCA's longstanding penchant for finding excuses to compartmentalize severe police misconduct and uphold convictions in spite of it. The trial judge recommended the defendant be granted relief, but four members of the high court found excuses to tolerate this sordid situation.

That Mr. Pena admitted transporting cocaine is undeniable. That, in light of equally undeniable police misconduct, the state could prove he transported more than 400 grams of cocaine - which is what earned him the 15-year sentence - borders on laughable. Regardless, the GAW faction on the Court of Criminal Appeals demonstrated once again they will tolerate even the most egregious government misconduct to uphold a conviction.

In this case they only needed to convince Judge David Newell to join them for the win, though even he wasn't completely enamored of the main opinion: "[T]here is a palpable sense of injustice from allowing a conviction to stand when it is infected by such misconduct from a member of law enforcement," he opined, before doing precisely that.

Remarkably, three dissents - from Richardson, Walker, and Yeary - captured five of the nine CCA judges in opposition. But no more than three could agree on a single opposition theory they supported.

So the GAW faction prevailed over a splintered court, upholding the 15-year sentence even though, as Judge Richardson wrote, "the substance was actually less than one gram of cocaine sprinkled on top of 26,000 grams of sheetrock when Applicant was charged with possession of over 400 grams of cocaine." Their theory? The sheetrock should be considered the same as "adulterants or dillutants" used to cut cocaine and the full amount should be charged, even though a police officer planted it there!

In other words, the CCA plurality said it's fine if cops add adulterants to drugs and then charge the defendant for the larger amount. This jarring conclusion led to an excellent observation from the reader who brought this case to Grits' attention: "The courts already allow cops to lie. They don’t allow the creation of false documents. But now they are saying cops can fabricate the weight of the evidence. Who is to say all drug busts from now on won’t be subject to this weight adjustment scam?"

Just as disingenuous was their analysis regarding whether the officer tampered with evidence. Here's a headspinning quote from the main opinion showing the black-is-white, freedom-is-slavery type Orwellian reasoning they had to engage in to reach this conclusion:
there is no dispute that drug dealers returned Pena's car after placing an ice chest full of cocaine in the backseat, that Pena retook possession of the car and was the sole occupant of the vehicle when he pulled over, or that [the police officer's] misconduct took place before Pena took possession of the cocaine in his car. Based on this, Pena cannot prove that [the officer] tampered with or fabricated the drugs in Pena's car within the meaning of Section 37.09 of the Texas Penal Code.
Got that? Pena left his car and there were no drugs. Drug dealers put drugs in there, then a police officer stole them and replaced them with fake drugs laced with cocaine. But based on that, it cannot be proven that the officer "tampered with or fabricated the drugs in Pena's car." To this non-attorney observer, that's exactly what that proves!

This is yet another example of outcome-oriented judging by the Government Always Wins faction on the Court of Criminal Appeals - Keller, Hervey, and Keasler - and their occasional abettors. They tend to get away with it because no one is watching. But for those of us paying attention, some of these opinions are pretty hard to square.

Monday, November 20, 2017

Evaluating criticisms of risk-assessments in bail reform

Risk assessments have always been part of the justice system in some form or fashion. But until recently, there was little if any transparency surrounding them. Instead, they involved some unknown process that goes on in a prosecutor's mind, or a judge's, or a probation officer - even police officers. All of these people assess risk of re-offense and "future dangerousness" every day as part of their jobs. But who can really know on what basis?

That's why outsourcing risk assessments to external, independent, transparent instruments has been so controversial - 1) it's taking a decision making function from humans in the system who may rebel at a perception of decreased power, and 2) the fact of its transparency means a risk-assessment instrument may be criticized in a level of detail that the inner workings of a judge or probation officer's decisions could never be.

Grits has argued that risk assessments play a different role in different parts of the system and that pretrial detention is an area where the benefits likely outweigh the problems. Here's an excerpt (6 min.) from the November episode of the Reasonably Suspicious podcast elaborating on that conversation.


While criticisms of risk assessments have not yet scared me off their use in the pretrial detention context, they have caused me to pay closer attention to arguments from those who think they may be problematic.

Beyond critiques of racial disparities, these academic authors (Upturn's John Logan Koepke and David G. Robinson of Georgetown Law) blame risk assessments for using historical data which may not take into account concurrent reforms enacted alongside risk assessments that can mitigate the risk of pretrial failure (the most effective of which, they say, are repetitive reminder calls and texts). They also criticize agencies for basing risk assessments on data from other jurisdictions,  though they note that those created for a specific jurisdiction often have much smaller datasets. So there's a tradeoff between locality and a robust dataset, the importance of which they undersell just a bit. They recommend the instruments be frequently updated using local data to the greatest extent possible (which is a theme we visited in our podcast segment).

In essence, the concern is that data-based actuarial tools are inherently backward-looking and can't capture the effects of concurrent reforms. For example, "Expanded pretrial services will reduce the risk of failure to appear," but a risk assessment based on pre-expansion data wouldn't capture that. On the other hand, if the instruments are updated and validated periodically, over time that should work itself out.

Finally, in the case of bail reform - at least in the Harris County, Texas context - the maximal harm hypothesized from risk assessments simply doesn't outweigh harms from the status quo of requiring money bail for everyone:
If a risk assessment system is developed on data from before risk mitigating reform, and misjudges a defendant’s true level of risk, such decision-making frameworks might unnecessarily burden defendants who, in reality, do not need to be jailed or to receive as much supervision upon release as the matrix suggests, in order to succeed. This observation is especially relevant given the literature on lower-risk defendants and release conditions. Multiple studies have shown that lower-risk defendants actually succeed on release more often when released without conditions, and that placing conditions of release on lower-risk defendants can actually worsen their odds of success.  
Such a scenario — where defendants are systematically overestimated as riskier than they truly are, leading lower-risk defendants to be subjected to conditions of release that are counterproductive — could perversely sustain an avoidably elevated pre-trial failure rate. In the future, policymakers might look back on the move toward non-financial conditions of release as misguided, and might inaccurately conclude that, despite its ills, a money bail system is the least bad option. As we detailed above, the history of bail reform is one of unintended consequences. The risks we describe in here are not an unimaginable parade of horribles. Instead, they are plausible unintended consequences from today’s bail reforms.
That said, Grits agrees this is the greatest potential problem from implementing risk assessments. In many ways it's a bigger issue than racial disparities, or rather, it's the main reason why racial disparities are important. The impact of assessing low-risk people as medium or high can itself have a criminogenic effect and result almost in a self fulfilling prophecy. IMO that's a great argument for constantly updating and validating risk assessment instruments, but not for avoiding their use - at least in a place like Harris County where nearly all defendants, low-risk or high, would otherwise be held pretrial if they couldn't make bail.

The authors suggest adjusting risk assessment scores when the RA is based on pre-reform data:
jurisdictions that are reforming bail practices should rely on fresh and local data, gathered after their other pretrial reforms have taken root, in order either to build or to calibrate their risk assessment tools. Where prereform data is used, the tools must be numerically adjusted to take account of the helpful impact of reforms. Existing “off the shelf” risk assessment tools, whose predictions assume that defendants still face the same long odds of succeeding outside jail, should not be used without adjustment in jurisdictions where those risks have been mitigated.
In my experience that may be a hard sell. Those adjustments would become highly politicized numbers, and I'm not confident decision makers who spent millions fighting bail reform in the courts would rely on reformers' estimates to make them. Plus, if the reforms work, revisiting and adjusting the RA every couple of years, or even more often, would over time resolve the problem. But it's certainly another argument for continuous evaluation of the risk-assessment instrument.

In the podcast, where we landed was that supplementing RA information with counsel at bail hearings might mitigate disparities because a lawyer (in theory) can communicate a client's particularized circumstance to the court in a way the risk assessment cannot. In the near term, before assessments can be evaluated to take into account the effects of concurrent reforms, that may be the best guard we have against their shortcomings - known and unknown - resulting in negative, unintended consequences.

Sunday, November 19, 2017

Lege to study what 'gaps in services' contribute to recidivism of young offenders

The Texas House Corrections Committee received several "interim charges" recently, including one directing them to study:
current Texas criminal justice system policies and practices regarding 17- to 25-year-olds, specific to probation, parole, state jail confinement, and discharge from the Texas Department of Criminal Justice or county jail. Review any gaps in services that may be causing this population to recidivate. Make recommendations to improve the state's response to the needs of this population in order to lower revocation, re-arrest, and reincarceration rates.
As the Legislature considers "gaps in services" which may contribute to unmet "needs" of offenders age 17-25 that "may be causing this population to recidivate," it's worth pointing out that we did a segment on this topic in August, and another in the November episode of the Reasonably Suspicious podcast, the latter of which for convenience I've excerpted here:


In addition, I was interested to learn this week that England and Wales have special youth prisons carved out for 18-20 year olds, and reformers there have proposed extending that to age 25, although those facilities have a record of abuse toward inmates that rivals some of the recent Gainesville allegations. Their main problems, as with Texas youth prisons, derive from understaffing.

I'd like to dig into the debate in the U.K. a little more to digest the arguments being presented on both sides. I thought this was particularly effective messaging from the above-linked article:
Alex Hewson, of the Prison Reform Trust, said: “A justice system which throws young people off a cliff edge on their 18th birthday, and expects them to fend for themselves in the adult system when they are still maturing and often vulnerable, is not one that is set up to deliver for offenders, victims or local communities.
Instinctively, based on my own life experience, what I've witnessed of young people in the justice system, as well as what I've seen of the relevant brain science (which admittedly is all second and third hand), the idea that special systems or rules might need to be created for this group to generate best outcomes doesn't seem far-fetched. I'm really glad the Lege will be studying it.

Related:

Saturday, November 18, 2017

Suggested rules for using Precision Immobilization Technique

At the Houston Chronicle, St. John Barned-Smith has a story on Houston PD's decision to use the "Precision Immobilization Technique" (PIT) - causing a fleeing suspect's car to crash by intentionally ramming the back corner of their moving vehicle - for use during car chases in that city.

The article only quotes law enforcement personnel, no accountability advocates, researchers, or others who might have suggested needed limits on the tactic. So, since this was a topic that came up years ago when your correspondent was Police Accountability Project Director at the ACLU of Texas, allow Grits to fill that void. Offhand, here are some of the bare-minimum policies needed to make this decision acceptable from a public-safety perspective:
1. PIT should not be used for pursuits resulting from traffic violations - only when pursuing alleged felons. 
2. It should require initial training and regular retraining of authorized officers, including proper locations for the maneuver. 
3. Policies should require pre-approval from supervisors before the technique is used. 
4. It should not be used at speeds above 35 mph. 
5. Officers may not ram suspect vehicles outside of the PIT parameters. 
6. Officers should be encouraged to break off chases where PIT maneuvers would endanger the public.* 
7. Ban PIT's use on motorcycles. 
8. Only allow officers to use the technique who have dashcams in their cars.
9. Track data and video on incidents where it's used and re-evaluate the policy after one year.
There are almost certainly other limitations that should be included in HPD's chase policy on the use of this technique (feel free to suggest some in the comments), but at a minimum these subjects should be addressed. There are good reasons the previous chief chose not to use this technique, and lots of things that can go wrong.

*E.g., "Research has shown that if the police refrain from chasing all offenders or terminate their pursuits, no significant increase in the number of suspects who flee would occur. ... For a discussion of the experiences of the Orlando, Florida, Police Department, see G. Alpert, R. Dunham, and M. Stroshine, Policing: Continuity and Change (Long Grove, IL: Waveland Press, 2006), 194-205."

Friday, November 17, 2017

Nuther dubious shooting of an unarmed black man

This latest Texas police shooting of an unarmed black man sounds particularly awful. Via the Fair Punishment Project's daily email:
In Mesquite, Texas, 31-year-old Lyndo Jones was shot by police last week. He was unarmed. His car alarm had gone off and he was sitting in his own car trying to figure out how to turn it off when police claim they thought he was an armed and dangerous criminal trying to steal a car. Turns out the alarm was broken. [Breanna Edwards / The Root
According to a written statement from Jones’ lawyers, officers asked him to exit the vehicle. He did, and seconds later, officers shot him in the stomach. They then tried to perform an anal cavity search, an altercation ensued, and they shot Jones in the back. The police department denies these allegations, but hasn’t explained how an unarmed man in his own vehicle ended up in critical condition with multiple gunshot wounds. [Claire Cardona / Dallas Morning News
Jones survived the gunshots, but police chained him to the hospital bed and kept him from his loved ones for a week until his family secured attorneys for him. [Melanie Schmitz / ThinkProgress] The Mesquite Police Department charged Lyndo with “evading arrest,” but the charges have since been dropped. [Tanya Eiserer / WFAA]
MORE: From The Texas Observer.

Thursday, November 16, 2017

Understaffing at Texas prisons and the implications for decarceration

Your correspondent was quoted in a page one article in the Houston Chronicle today, "Mass exodus of Texas prison guards leaves some units understaffed," about guard shortages at Texas prisons, a topic that Grits has covered for many years. (The author, Keri Blakinger, is new to the Chronicle and the beat, so cut her a little slack for being late to the party; she got here as quickly as she could.)

Statewide, the turnover rate among prison guards was 28 percent last year, but at some units it was much higher.
County-by-county numbers show that staffing challenges can be highly localized and specific, as in the Texas Panhandle. Hartley and Dallam counties are not in an area particularly known for oil and gas, but a cheese factory in Dalhart has typically pulled away would-be prison workers, Henson said. 
The other two — Mitchell and Dawson counties — are in the oil-rich Permian Basin. 
"Whether people will work in prisons depends on hyperlocal economic conditions," Henson said. "A prison is someplace that you work as a job of last resort."
Here's a map of the counties with the highest turnover rates among correctional officers:


State Sen. John Whitmire honed in on the fundamental problem:
"I believe in most instances we put the prisons in all the wrong places," said Sen. John Whitmire, D-Houston, chair of the Texas Senate's criminal justice committee. "Some are located in communities that don't even have housing available for the corrections officers."
Bingo! Many of Texas' prisons were located in sparsely populated areas thanks to a failed Democratic electoral strategy from the Ann Richards era. Richards sought bond funding to expand prison capacity far beyond what was necessary to accommodate federal prison reform litigation (Ruiz v. Estelle). The idea was to promote prisons as rural jobs programs in areas which were depopulating and which historically had voted Democratic. But Democrats badly miscalculated. On that same 1994 ballot, voters gave a thumbs up to the prison bonds and a thumbs-down to Ann Richards.

Meanwhile, the reasons rural areas were depopulating did not change thanks to an influx of low-waged jobs nobody wants. And so now, at many of those locations, there aren't enough warm bodies to fill the positions.

Closing units where staffing problems are most acute would make a lot of sense from TDCJ management perspective. But so far, prison units closed in Texas have been based on political considerations, sometimes including real estate interests that want to use the land for other stuff. But one can make the argument for reducing incarceration, say, of low-level drug possession offenders simply because it's becoming dangerously difficult to guard them out in the middle of nowhere in a short-staffed and under-funded setting.

Save money. Increase liberty. Make the prison system safer. What's not to like?

Almost seven years ago, Grits offered up a sort of decarceration manifesto at a time when Texas had never closed a prison since the founding of the Republic. Titled, "Six Impossible Things: Do you believe in a conservative, rational, and smaller corrections budget," I made these broad points (subheds to the article):
  1. Prison closures aren't just possible but necessary
  2. Texas can safely incarcerate fewer low-risk nonviolent prisoners
  3. Incarcerating more people costs more money
  4. Community supervision is still punishment
  5. Releasing people is what prisons do, so we must do reentry better
  6. The prison bureaucracy is not the best judge of its own inefficiencies
With 20/20 hindsight - after Texas has reduced its prison population by nearly 10 percent and closed eight units - all of these "impossible things" turned out to be true, and they still are. Prison closures remain necessary because if we don't reduce the number of prisoners and shutter more units, costs will escalate. Both Texas' own experience and the examples of other states show #2 was correct, and #3 has always to me seemed self-evident, the Legislative Budget Board's pro-enhancement posturing notwithstanding. And the public is prepared, in my estimation, to believe #6. But numbers 4 and 5 haven't really bubbled up to the surface of public consciousness in the way one might like.

Regardless, Grits first began tracking the guard understaffing story because of its implications for decarceration and prison closures, and Ms. Blakinger's reporting shows those underlying dynamics remain strongly in play. The prison system has an interest in reducing its size and the number of people it incarcerates for its own institutional reasons, independently of advocates seeking that outcome. That creates some interesting near-term possibilities as the Legislature faces another money-strapped session in 2019. A lot there to chew on.

MORE: From the Beaumont Enterprise.

Critiquing proposed Austin police union contract

The Austin Justice Coalition has compiled a comprehensive summary of criticisms of the local police union contract as the union votes this week and the city council prepares for a pivotal vote in early December. Here's a discussion from the October episode of Just Liberty's Reasonably Suspicious podcast, with accompanying graphics from Sukyi McMahon:


For more background, check out a speech from Campaign Zero's Sam Sinyangwe (audio/transcript) and his power point materials critiquing Austin's contract, from an accountability perspective, as among the worst in the country.

Wednesday, November 15, 2017

Opacity policies a big reason why bodycams haven't lived up to the hype

Grits appreciated Eva Ruth Moravec's post on police bodycams and Texas' low ranking vis a vis accountability compared to other jurisdictions. I've been harping about Texas' bad statute since it first passed, but this new research places its badness in a national context, which is to say, "among the worst in the country."

Am I surprised? Not in the least. But before now no one had done the legwork to prove it, so bully for Upturn and the Leadership Conference, the groups that performed the analysis. Our old pal Vanita Gupta - who was one of the lead attorneys on behalf of those convicted-and-later-pardoned in the Tulia drug stings back in the day - is now running the Leadership Conference after a stint in the Obama Administration running the DOJ Civil Rights Division, so it's nice to see her still producing good work.

In light of this news, it seemed like an opportune moment to pull out a brief excerpt from the November Reasonably Suspicious podcast, in which Grits offered my own view on why bodycams haven't improved accountability as much as predicted, colored significantly by Texas' situation:


Since it's short, here's the full transcript:
Mandy Marzullo: A new study found police body cams were doing little to change police behavior. What's the problem? 
Scott Henson: Mainly it’s that the laws implementing them aren't designed to use body cams for accountability. They're designed to use them to gather evidence against defendants. In most states including Texas, it's very hard to get access to the body cam footage, and so advocates aren't able to use it for holding police accountable and the only way they're getting used is as evidence in criminal trials. So for everyone who thought, "Hey, this will be a great police accountability tool," it's all in the implementation.
In addition, Michael Barajas at the Texas Observer had a story in September on the shortcomings of Texas' bodycam statute as viewed through the lens of police accountability debates in Dallas.

See related Grits coverage of Texas' bodycam statute:

Experts: Texas' bodycam law limits cities' ability to adopt best practices

Texas' 2015 law governing what must be included in law enforcement agencies' body-worn camera policies hampers local agencies and is "among the worst in the country," according to an expert who evaluated policies in 75 U.S. cities.

Of the six Lone Star State cities included in the policy scorecard, released Tuesday by The Leadership Conference on Civil and Human Rights and Upturn, all failed to meet best practices - as defined by a coalition of civil rights, privacy and media organizations - in at least four of the eight evaluation categories.

The law, negotiated for weeks and passed in 2015, like a similar one passed this year in Florida, "binds the hands of police officers in that state," said Harlan Yu, executive director of Upturn, on a conference call with reporters. "Even if departments want to do better, they can't because of state law."

Legislators, in adopting the state law, required agencies with body-worn camera policies to have rules that mimic the legislation. Those agencies were then able to apply for the $10 million in state grants earmarked to help departments pay for their cameras.

Yu and his fellow researchers - including former Vanita Gupta, former Principal Deputy Assistant Attorney General and head of the Civil Rights Division at the U.S. Department of Justice during the Obama Administration - are particularly troubled by provisions of the Texas law that govern when officers may see footage of incidents they are involved in, and when body-worn camera footage is released to the public. Some social researchers, including Yu, believe that viewing footage prior to providing a report can affect memories, either consciously or unconsciously.

Only 13 of the 75 departments studied require officers to give statements from incidents before viewing footage, a process that Yu and Gupta call "clean reporting." All of the Texas departments included in the study were among the 50 departments that give officers unrestricted access to the footage.

Texas' law requires that agencies' policies include:







which Yu said can distort evidence. Clean reporting "captures the officer's independent perspective," Yu said.

Public access to footage from body-worn cameras is limited by Texas law to incidents that are no longer under investigation, and requestors must provide specific information about the incident in order to even get their foot in the transparency door. The law also allows the release of footage if the agency determines that releasing it "furthers a law enforcement purpose."

When asked to explain the variation in scores received by Arlington, Dallas and Fort Worth police departments, Gupta noted that "policing is inherently local," and it's possible to have "police departments that are right next to each other with very different approaches." The hope is that those with best practices lift up the others, Gupta said, but added that that amount of flexibility "remains an issue in places where there are state laws restricting it."

The new scorecard is an update to a Nov. 2015 body-worn camera policy scorecard, and is accompanied by an Upturn/The Leadership Conference report titled, "The Illusion of Accuracy.

Tuesday, November 14, 2017

Tall tales, zombie predictions, Harvey deals, and other stories

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

Press coverage dismissive of police reform efforts
Statesman coverage of the Austin police union contract portrayed opposition by "several Austin criminal justice activists," by which they mean 10 or so community organizations and hundreds of endorsing signators, not to mention a unanimous vote to reject the contract by Travis County Democratic Party precinct chairs. But sure, "several" people oppose it. smh

'Harvey deals'
When a little time has passed, Grits will be interested in seeing data on the actual extent of "Harvey deals," or plea bargains entered into by the Harris County DA to move along overburdened dockets while the courts are displaced from Hurricane Harvey. My gut tells me the effect has been overstated. Most of the misdemeanor cases described would be handled pretty quickly, anyway.

Tall tales from the annals of junk science
Junk science comes in all forms and fashions. In Bell County, the Innocence Project of Texas has a case where faulty math was submitted as evidence by the prosecution to claim a 6'3" man committed a crime which, an analysis commissioned by the Texas Forensic Science Commission found, was really committed  by a man between 5'7" and 5'9." See Brandi Swicegood's story in the Dallas News.

Second look event
Promotion has been a bit sparse, but later this week at the capitol a new group called the Lone Star Justice Alliance will host an event focused on "second look" legislation seeking expanded parole opportunities for juveniles who commit serious violent offenses. (Check out a related discussion of a legislative interim charge related to youthful offenders aged 17-25 from our latest Reasonably Suspicious podcast, beginning at the 13:13 mark.)

Zombie Predictions and the Future of Bail Reform
Another one for the reading list.

Falsely confess or we'll kill you
That's what detectives are saying, in essence,  to innocent suspects when they threaten them with execution if they do not confess. Adherents of the Reid technique would tell you they're trained not to use such tactics unless they're certain the suspect is guilty. Problem is, that assumes cops never get it wrong, and they sometimes do.

Known Unknowns
Read a speech from Radley Balko on the unseen problems and costs associated with the criminal-justice system.

Sunday, November 12, 2017

November Reasonably Suspicious Podcast: Let me be your lawyer dog, or I won't be your man at all ...

Check out the November edition of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice policy and politics. We're coming out a little early this month to keep things on the right side of the Thanksgiving holiday. You can listen to the latest episode here, or access it on all the usual channels: iTunes, Google Play, YouTube, or SoundCloud.


If you haven't subscribed yet, take a moment to do so now to make sure you won't miss an episode. Topics this go-round include:

Top Stories
  • The Louisiana Supreme Court said a man who told police "Why don't you just give me a lawyer, dawg?" wasn't really asking for a lawyer. But this is common. A recent Texas case denied an attorney on the same basis.
  • Risk assessments have come under fire from liberals for generating racial disparities. What are the implications for using them as part of Harris County bail reform?
Game Segment: Tea Leaf Reading
Looking forward to criminal-justice-related interim charges at the Texas Legislature.
  • Appropriate treatment, services to offenders aged 17-25 to reduce recidivism, future crime. (See an earlier podcast segment on the topic.)
  • Ineffective Assistance of Counsel: Front-end and back-end solutions.
Death and Texas
  • US Supreme Court hears oral arguments in Ayestas v. Davis, seeking funds for investigation into an ineffective assistance claim.
  • A state district court considers Ex Parte Flores in which the key eyewitness was subjected to hypnosis before changing her ID of the suspect. She at first told police the suspect was a white man with long hair. Mr. Flores is an Hispanic man with short hair.
The Last Hurrah
Rapid fire quick takes:
  • USDOJ deleted 70% of tables from the newest edition of the national Uniform Crime Reports.
  • A new study says police bodycams haven't changed police behavior. Why is that?
  • Rent to own furniture companies as modern debtors prisons.

Saturday, November 11, 2017

Did TDCJ lie about Harvey flooding? Plus, Jordan Edwards' killer's white supremacist past, and other stories

Here are a few odds and ends which merit Grits readers' attention while mine is focused on family matters:

Jordan Edwards' killer's alleged white-supremacist past
Roy Oliver, the Balch Springs cop who shot 15-year old Jordan Edwards, reportedly flipped off the car containing Edwards' body after the incident.. The Dallas News account included the tidbit that, in middle school, the officer was a member of a group called "Caucasians in Effect." During that period, reported the paper, he "posted swastikas in public places and hated anyone who was not caucasian." A trial date for Oliver, who has been charged with murder, has been set for January 22.

Hurricane Harvey and flooding at TDCJ
Did the Texas Department of Criminal Justice mislead the public about flooding at Beaumont-area state-run prisons? That's the allegation arising from offender accounts reported in Mother Jones. TDCJ initially did a good job of evacuating prison units in the hurricane's initial path, but when it went back out to sea and came aground again near Beaumont-Port Arthur, they weren't nearly as prepared and apparently just hunkered down. Jason Clark's denials here are so specific and strenuous that either 1) the offender accounts may be overblown or 2) something truly significant is being covered up. The flat-out contradictions of such specific inmate commentary seems unusual, even for a prison flak.

Texas deserves credit for Michael Morton Act reforms
The Marshall Project and the Fair Punishment Project both have good stories up about Brady violations by prosecutors. But it's worth mentioning that Texas' enacted one of the strongest disclosure statutes in the country when it passed the Michael Morton Act. The MP story notes this in passing, declaring that, "Now, the politics show signs of shifting, and a renewed effort is underway to push the legislature to overhaul state discovery rules, following the example of traditionally more conservative states such as North Carolina and Texas." But the Fair Punishment story does not, and referenced a couple of Texas cases from before the passage of the Michael Morton Act. Texas' statute still has some shortcomings, but it's a lot better than it was when those cases were decided.

The End of the Briseño Standards: Aftermath of a benchslapping
After the US Supreme Court benchslapped the Texas Court of Criminal Appeals over its Briseño decision in Moore v. Texas, the issue of when it's acceptable to execute the developmentally disabled is now back on their plate.  I've always considered Briseño one of the best examples of "outcome-oriented judging" by the Texas CCA (although there are many others). The court intentionally used outdated scientific information and other extraneous standards for years to get around SCOTUS' Atkins' decision, and their contrarian views finally caught up to them in 2017. Now, in the wake of this latest decision, even the Harris County DA agrees Mr. Moore has an intellectual disability. But the question remains: Will the CCA continue to flout SCOTUS, or will they acquiesce? See an op ed from the head of the Special Olympics asking them to honor the Supreme court's decision. MORE: The Republican DA in Dallas County reversed course to announce she would not seek the death penalty in a case governed by the Moore decision. Such bipartisan acquiescence to the new decision by Texas DAs perhaps makes it more likely the CCA won't take it upon themselves (again) to rewrite science and SCOTUS precedent on these topics. But you never know.

The role of community groups in the Great Crime Decline
What was the role of ordinary citizens and community nonprofits in the Great Crime Decline witnessed since the early '90s? See coverage of a new study purporting to answer the question. (Spoiler alert: their answer is "some.")

As DRT-boxes track Texans from planes, considering options for restricting government cell-phone surveillance

The Texas National Guard is using so-called IMSI catchers, aka "Stingrays" or "DRT-boxes (read: Dirt Boxes, which are IMSI catchers attached to airplanes or drones), which are fake cell towers used to trick your phone into routing its call through government surveillance technology instead of your carrier. See an excellent article by Melissa del Bosque, with one caveat. She quoted Austin attorney Scott McCollough declaring:
“These DRT boxes are far more capable than the old Stingrays,” McCollough said, “The old-style Stingrays were not able to capture content. Guess what? The DRT box is. … These newer ones get everything.”
McCollough knows more than most about the law surrounding cell phone surveillance (some of his clients are small cell-phone companies which must comply with law enforcement requests for customer data). But he's wrong about the tech. The old Stingrays also gathered content, by definition, since the entire call including content is routed through the Stingray, bypassing commercial cell phone towers. And as of 2013, they were already selling an "interception model" of the Stingray for which gathering content was an option.

For several years, your correspondent was part of a coalition which, for a couple of sessions, made a big push at the Texas Legislature to require warrants for the government to gather people's cell-phone location data, which implicates how the Stingrays/DRT boxes are used. But despite more than 2/3 of the Texas House signing onto the bill, it couldn't clear the senate. So we dropped that bill in 2017, though the rise of a new Speaker could reinvigorate the effort in 2019. (Who knows, maybe one of the past supporters will become Speaker next. Most of them were supporters.)

Alternatively, the US Supreme Court is about to hear a case dubbed Carpenter which could end up deciding that warrants should be required for the government to gather and use personal cell-phone location data, which could moot the legislative push for a warrant.

Regardless, use of this tech has expanded beyond the capacity of existing constitutional and legislative structures to restrain it. Whether such restraints come from the judiciary or legislative sources, or more likely both, to me matters little. Folks like Orin Kerr who insist that only legislation is an appropriate solution are IMO disingenuously using the distinction to argue for doing nothing. In this situation, a vacuum of authority is what allowed the government to use these emerging technologies to track average Americans in the first place. Both branches  - legislatures and the judiciary - have a role to play in in preserving Fourth Amendment rights and updating their interpretation to match 21st century realities. It's not enough to protect our "papers" anymore, the cell-phone era exposes much more data about us than just what we write down.

The fact that, in light of that vacuum, the executive branch will use surveillance technology not forbidden to it shouldn't surprise anyone. Texas had a chance to restrict this sort of surveillance tech and didn't do it. So government surveillance is what we get, until one or both of the other two branches step up to stop it.

Friday, November 10, 2017

New TJJD sex-abuse allegations recall similar, but different '07 scandals

For anyone paying attention a decade ago, news of sex-assault allegations against staff at a Texas youth prison in Gainesville brings on a deja vu feeling regarding the Texas Youth Commission scandals in Pyote, an episode which ultimately brought down the agency and sent its successor down a tumultuous path toward reducing incarceration levels by 75 percent.

Now, "At least four former staff members at the Gainesville State School, including a woman allegedly pregnant with a youthful offender's child, are facing prison time amid allegations of sexual misconduct at the state lockup for troubled youths," reported Brandi Grissom-Swicegood and Sue Ambrose at the Dallas News.

And everyone who was around in 2007 drops their heads and thinks, "Oh no, not again."

These troubles mirror problems witnessed at the adult system, where sexual misconduct by staff at the Texas Department of Criminal Justice (TDCJ) is a big source of federal Prison Rape Elimination Act violations. The Texas Association Against Sexual Assault has recommended the Legislature create an independent oversight mechanism at TDCJ comparable to the Ombudsman created for TJJD after the 2007 scandals.

Which brings us to the big difference between this scandal and the last one: The perpetrators were caught by the government itself, not by reporters following up leads given to legislative staff by family members of raped constituents. And the perpetrators were promptly arrested and prosecuted. The agency culture that tolerated such behavior has shifted dramatically. So that part of the system worked better than last time, one notices.

And to be fair, that's really all the Legislature's reforms after 2007 were supposed to do. As the agency reduced the population in youth prisons, it was pressed along the way for commensurate budget cuts, even though most of the facilities are chronically understaffed and suffer from among the highest staff turnover rates of any state agency. That's because of low pay, crappy working conditions, and the location of the facilities in mainly rural areas where the labor pool is either dissipating or otherwise occupied.

As a result, the agency has mainly improved the lot of youth under its care by reducing their number, with the Legislature financing (mostly cheaper) community supervision programming in lieu of housing them in state youth prisons. If those reductions had afforded  the agency a chance to improve staff-to-youth ratios more aggressively, or to invest the savings in programming, it would be easier to make a case for them.

But in their current state, it's hard to argue for keeping them around at all. When activists like Angela Davis talk about "abolishing" prisons on the adult side, Grits must admit I roll my eyes. But on the juvenile side, I'm all the way there. Funding community-based programs in lieu of incarcerating youth in state-run prisons empirically has worked. Youth crime in Texas plummeted at even greater rates than crime overall when Texas shifted most offending youth into local systems.

Expanding on that model for the last thousand-or-so kids left in Texas youth prisons would also afford the chance to shift to smaller-scale units run on a more treatment-centric basis. In an ideal world, the Lege would finance locally controlled facilities reconfigured according to best practices like those endorsed a decade ago by a "blue ribbon commission," whose recommendations the Legislature first eagerly commissioned and then, when they proved inconvenient and expensive, ignored.

The blue-ribbon panel recommended the state move to smaller facilities modeled after Missouri's juvenile system, and put the era of housing juveniles in large units with hundreds of bunkmates behind us. Instead, they depopulated youth prisons, but continued to run the ones that remained on the old, large-scale warehousing model.

The other option floated periodically is to hand the system over to TDCJ to run. But as noted above, TDCJ has trouble preventing inappropriate staff relations and contraband at its adult units, which fails to inspire confidence that they'd do any better running juvenile facilities. Plus, when TDCJ executives were brought in to run TYC after the original scandals were uncovered in 2007, their skill sets did not translate to the juvenile realm and their leadership was (if we are to be frank) an unmitigated catastrophe. So as solutions go, I see that one as a pig in a poke. It could invite new troubles and wouldn't necessarily solve anything.

Anyway, that's Grits' initial takeaway from this dispiriting news out of Gainesville: The mechanisms the Legislature created to identify, prosecute and punish sexual misconduct by staff actually appear to have worked. But the corrections culture that produces these illicit relationships at TJJD and TDCJ continues to afford opportunities for predatory behavior.

So we're better at catching and punishing predators. What hasn't worked is warehousing youth in large state facilities a decade after the experts recommended breaking them up. Texas was told ten years ago it needed to shift to smaller, treatment-based programs, locally controlled and located near their own communities. And with these problems recurring, maybe it's time state leaders finally heeded those suggestions.

A primer for police union leaders on making "the guilty innocent" after a high-profile incident

In the October episode of Just Liberty's Reasonably Suspicious podcast, we included a segment analyzing Chapter 11 of a new book on police-union politics called "Law Enforcement, Police Unions, and the Future," coauthored by Ron DeLord, formerly of the Combined Law Enforcement Associations of Texas.  That chapter is titled, "What every union leader should know about dealing with the media in a high profile incident," and opens with this quote from Malcolm X: "The media's the most powerful entity on earth. They have the power to make the innocent guilty and the guilty innocent, and that's power, because they control the minds of the masses."

My colleague Sukyi McMahon added a little slideshow to the excerpted segment to jazz it up a bit. If you didn't hear it the first time, or even if you did, check out this version:


Coming up tomorrow: A discussion of Austin's police-union contract and why local advocates are seeking to end instead of renew it.

Wednesday, November 08, 2017

What is a DA's role in dictating police overtime pay?

Over the summer, Grits highlighted perverse incentives created by overtime rules in police union contracts that give officers extra pay for time they appear in court, honing in on the subject in July's Reasonably Suspicious podcast. Some officers have gamed the system to extract exorbitant amounts of overtime pay which not infrequently can exceed an officer's annual salary.

So I was interested to see in coverage of the Philadelphia DA's race this tidbit about why the local police union opposed the ultimately victorious reform candidate:
Why is [the union] so afraid to see [Larry] Krasner as Philly’s head prosectuor? Because he will lose the ability to protect “bad apples” and their overtime pay. 
According to Open Data Philly, in 2016 some police officers and detectives earned $100,000 in overtime, more than doubling their salary. The way most police officers make overtime is by appearing in court. If the DA’s office brings charges after an arrest, the cop will most likely be called to testify. In Philadelphia, every time officers appear in court off-shift, they receive a minimum of two hours of overtime pay. This is a clear financial incentive for cops to arrest as many people as possible, and might explain why in 2016 one in four pedestrian stops made by Philadelphia police was deemed unconstitutional
Krasner’s campaign platform pledges that he will “end this practice [stop-and-frisk] by refusing to bring to trial cases stemming from illegal frisks and searches.” McNesby’s main concern as a union representative is the compensation of FOP members. Unfortunately, those members work in a system that rewards civil rights violations. Cops who abuse civil rights to increase their salary will be hurt if Krasner is the next DA.
Your correspondent had not heretofore made the connection between local DA policies and the ability of police officers to max out overtime. Not only do cities incentivize court time through contracts, but DAs through scheduling conceivably could have an enormous impact on how much overtime a given officer makes. I hadn't considered that.

Regardless, this is evidence that officers gaming the system to maximize overtime pay for court appearances isn't just a Houston, or an Austin, or just a Texas problem, but instead is something with which many cities are struggling. They get these overly generous provisions in their contracts, then act surprised when officers behave in a way to maximize their own self interest. But the officers ultimately are not the ones to blame. Rather, those who allowed such policies to be enacted in the first place are primarily culpable for the problem. And in many cases, it can only be rectified once every few years when the union contract comes up for renewal.

Sunday, November 05, 2017

Optical illusions for traffic calming?

Society spends a lot of money on the question, "how do you get drivers to slow down and pay attention?" From traffic engineers to law enforcement to public-education campaigns - none seem to have good solutions. (Well, the traffic engineers do, but most cities aren't willing to re-imagine their fundamental ways of doing things.)

But in Iceland they're pioneering a traffic calming method which requires only a few buckets of paint: Creating optical illusions at pedestrian crosswalks. Check it out:


No word yet on evidence whether or not the tactic works. But there's plenty of evidence that it's awesome! Some others are even more artsy and elaborate.

H/T: Adafruit.

Texas should now look to other states for justice-reform solutions

Texas Sen. John Cornyn keeps touting the "Texas model" for reducing incarceration, and has signed onto federal reform proposals. But Texas' big probation/parole reforms were more than a decade ago now and - aside from raising the property-theft thresholds in 2015 to keep up with inflation - the state hasn't done much since.

Thankfully, the models for what state-level criminal-justice reform might look like are proliferating, and becoming more interesting.
  • Oklahoma voters last year approved reclassifying low-level drug possession from a felony to a misdemeanor.
  • Massachusetts' reforms included raising the age of adult culpability to 19 years old and repealing mandatory minimums, including for drug sales in school zones. (In Texas, 17-year olds are charged as adults, and drug-sales in school zones trigger major enhancements.)
  • Louisiana's reforms included reducing the harshest sentences for some violent offenders, as well as good-time policies which have spurred early releases.
  • Illinois' reforms centered on addressing untreated trauma, improving reentry prospects (including record expungement), giving judges more control over sentencing, and requiring defense attorneys be present at bail hearings.
  • Georgia reduced probation lengths and focused most community supervision resources on the earliest period people are on probation, creating incentives for probationers to earn early release through good behavior.
  • In California, a federal judge ordered the state to release inmates if it couldn't solve severe overcrowding problems, spurring voters to reduce penalties for certain drug possession cases and to begin housing some state prisoners in county jails. (Texas may need to rent county jail space if too many more of its inmates fall under the federal court order mandating air conditioning for prisoners with "heat-sensitive" conditions.)
Ten years ago, it wasn't a boast to say Texas was on the vanguard of legislative-driven decarceration reform, since elsewhere in the country it hadn't happened at all. (Really, 14 years ago was the first big sentence-reduction bill - HB 2668 mandating probation on the first offense for low-level drug offenders.) Since 2007, though, we've without question fallen behind the curve.

That said, Texas' past actions are still having a residual effect of helping spur change in other states. In Massachusetts, blue-state officials were in part shamed into action because so many red states had taken the lead. “When states like Texas, Alabama and Georgia are leading criminal justice reform, something is wrong with the picture,” [a leading Democrat] said. “Many of these policies have not been reviewed or revised in generations. We need to sweep out the cobwebs.”

But as a Texan, my concern is what goes on within our borders, not becoming a symbol that encourages other states to change. And Texas' reforms have stalled.

Last session, a Republican committee chairman who's now a Speaker candidate (Phil King) filed legislation to reduce the lowest-level drug penalties and use the savings for treatment. But the probation directors killed that pretty easily because they don't want to lose more-lucrative felons from their probation rolls (they're paid less for misdemeanor probationers, who also stay on supervision a shorter period of time). Since money from penalty-reduction savings would be available, there should be ways to resolve that. But the probation directors refused to budge, and the Lege was too focused on bathrooms and immigration to interrogate that self-interested and counterproductive opposition.

Advocates have been beating our heads against that particular door for a few sessions now, so maybe it's time to consider reforms happening elsewhere and retool our approach. Texas has become known nationally for its 2007 decarceration push. But that was a long time ago now. Among reformers nationally, Texas is also becoming known for talking a big reform game without really delivering results to match. (After all, we do have the largest prison population of any American state!) After a decade of telling other states they should model themselves on Texas, it's probably time we began looking at other jurisdictions more closely to crib a few good ideas from them.

Saturday, November 04, 2017

DRP surcharges impinging on post-Harvey rebound for thousands of Texans

Image H/T: TCJC
In the aftermath of Hurricane Harvey, the Texas Department of Public Safety delayed Driver Responsibility surcharge payments for 60 days and announced it would waive $11 driver replacement fees for people in the 50 counties affected. But those short-term accommodations now have come and gone, and the DRP surcharge is still a huge barrier to getting a drivers license for tens of thousands of Texans trying to get back on their feet after one of the state's biggest-ever natural disasters. For more than 1.3 million Texans, it has become a nearly insurmountable barrier to getting a drivers license, which these days is nearly a prerequisite to participation in public life. Now's not the time to press for payments when those affected by the floods are still getting back on their feet. Go here to ask Texas state leaders to waive Driver Responsibility Program surcharges for people living in Harvey-affected areas.

Ultimately, the Legislature should abolish the DRP entirely. But until they take that step, the Department of Public Safety has authority to grant amnesty. And this sort of large-scale emergency clearly justifies taking every possible step to get people in the region street-legal and back to work.

This post was updated to clarify that the Harvey-related delay in DRP payments for debtors in affected counties is now over.

"Lawyer dog" incident hardly unique; judges like loopholes that deny counsel

Recently, the Louisiana Supreme Court made national headlines by ruling 8-1 that a defendant who said, "Why don't you just give me a lawyer, dog?" wasn't really asking for a lawyer.

In the same vein, Texas 14th Court of Appeals in Texas ruled on October 31st that a defendant who said he wanted to call his sister to ask her to get him a lawyer also didn't unambiguously say he wanted a lawyer. In part, that's because the detective kept interrupting him to keep him from being more explicit! And at the end of the day, the ploy worked! The appellate court said the defendant's desire for representation was insufficiently explicit to be binding, even though it's obvious to any sentient person he wanted an attorney because it was "the only option I have."

This garbage has been going on as long as I've been around the criminal-justice arena and it's indefensible. When someone says they want a lawyer, cops should stop questioning them until they get one. Instead, they look for loopholes to argue that's not what the defendant really meant, and, since judges are reluctant both to throw out confessions or to make counties pay for counsel when defendants are indigent, they routinely allow those sorts of legalistic workarounds. It's bullshit, but the practice is as common as pine trees in East Texas.

Wednesday, November 01, 2017

Massive 4-part study offers justice-reform suggestions

This four-volume behemoth - funded by the Charles Koch Foundation, produced by the Arizona State Law School, and authored by some of the most distinguished minds in the criminal-justice reform realm - has so much good stuff in it it nearly makes Grits' head spin.
There are a lot of familiar names here. In many cases, the editors chose some of the exact same authors Grits would have wanted to address these specific questions - they certainly didn't shy away from the system's core problems. I encourage readers to spend some time with these volumes, there's a mountain of high-quality material there. And let me know in the comments which articles stood out for you.

Checking in on opposition to Austin police union contract

After the final, negotiated police-union contract in Austin failed to include most reform recommendations from the Austin Justice Coalition and its growing array of allies, police reformers along with anti-tax advocates are now openly asking the City Council to not renew the contract, which will slather officers who are already the state's most highly paid with more than $80 million in new raises and new benefits (like the "patrol stipend" that pays patrol officers more for ... wait for it ... patrolling). The union will vote on the contract soon (it includes a $1,000 "signing bonus" for every officer), and the Austin City Council is scheduled to consider it in December.

Austin can avoid those extra costs and save millions more without harming officer pay by letting the contract expire. And, by all accounts, we would lose scarce little in real-world police accountability. Indeed, arguably accountability in some ways would improve.

For example, Austin PD automatically reduces suspensions to lower-level infractions that aren't subject to open records or even criminal discovery, according to this analysis from the Texas Criminal Justice Coalition. My wife, Kathy Mitchell, works at TCJC and authored the report. She opined in the press release, “No private sector employer or HR department would agree that a boss should not be able to consider an employee’s past serious misconduct if that employee violates the rules again later.” That's pretty decent messaging, don't you think? It emphasizes the degree to which Austin cops receive unusually special treatment under the contract.

In addition, Kathy/TCJC recently published another analysis detailing numerous reform recommendations for the Austin Police Department from its civilian review panel. APD has never implemented any of them. See also an executive summary and an appendix.

These two reports together show why local accountability advocates don't care if the civilian review panel is abolished. It's been in place nearly two decades and has never spurred meaningful change at APD. Meanwhile other, portions of the contract actually make police less accountable.

On our latest Reasonably Suspicious podcast, Kathy and Sukyi McMahon from Just Liberty discussed local advocacy surrounding the police contract and why they ended up opposing it. Here's that segment, excerpted, give it a listen:


RELATED: See also a speech by Campaign Zero's Sam Sinyangwe explaining why Austin's police union contract ranks as one of the worst and least accountable in the country.

Comings and Goings

A few movement-related personnel matters merit Grits readers' attention:

Scott Henson and Becky Bernhardt
In a particularly unfortunate blow, for this writer, anyway, Becky Bernhardt is leaving the Texas Fair Defense Project and Susanne Pringle is taking over as interim executive director. Susanne's wonderful, but I'll miss Becky at TFDP. She ramped up their advocacy quite a bit and accomplished a great deal during her tenure there. She also gave me a place to volunteer, feel welcome and supported during a recent stretch of unemployment during the months before Just Liberty launched. In fact, Becky's a Grits for Breakfast contributing writer, a board member at Just Liberty and has been supportive of my work for years. If you want to celebrate her on the way out the door, TFDP's annual luncheon/fundraiser on Friday in Austin may still have a few seats available.

At the Texas Public Policy Foundation, Marc Levin was named their new Vice President for Criminal Justice Policy and his #2, Derek Cohen, who as fate would have it is our board chair at Just Liberty, became Director of the Center for Effective Justice and leader of the Right on Crime Campaign. Congrats to both men. It's good to see criminal-justice reform given a full-blown seat at the leadership table at the state's principle right-wing think tank.

The Texas Forensic Science Commission has hired Jody Koehler, DNA section manager at the Texas Department of Public Safety crime lab division, as their new Scientific Adviser. That would be a fascinating but tough job. Glad they hired someone who will be familiar with the DNA mixture controversy, as well as Texas crime-lab people and practices.

The Texas Indigent Defense Commission hired Geoffrey Burkhart, a public defender out of Illinois, to replace Jim Bethke as executive director. I don't know Mr. Burkhart but look forward to meeting him; he has big shoes to fill.

Brete Anderson, a long-time staffer for state Rep. Senfronia Thompson, has officially retired, though it's possible we may see him back working for some other legislator in 2019. He's one of those staffers behind the scenes whom the public never hears about but who makes things happen. Good luck, Brete, wherever you land.

Speaking of legislative staffers, Terra Tucker has left Chairman John Whitmire's staff on the Senate Criminal Justice Committee to work for the Alliance for Safety and Justice, a national reform group.

Jason Clark, the Public Information Officer at the Texas Department of Criminal Justice, has been named Deputy Chief of Staff, the agency announced on Twitter.

Finally, congrats to Chris Harris on his new gig crunching numbers for Grassroots Leadership. They found themselves a good'un.

Monday, October 30, 2017

Interview: Campaign Zero's Sam Sinyangwe

Scott Henson and Sam Sinyangwe
In the most recent Reasonably Suspicious podcast, we published an excerpt from an interview I did in September with Sam "Swinging Sammy" Sinyangwe - one of the founders of Campaign Zero and a leader in the national, post-Ferguson police accountability movement. We talked a bit about his personal background, as well as Campaign Zero's work to hold police officers accountable by vetting and seeking reforms in police union contracts. You can listen to the full conversation here:


For more background, check out a speech Sinyangwe gave in Austin last month (audio/transcript/materials) detailing specific criticisms of Austin's police contract. Find a transcript of our interview after the jump.

Saturday, October 28, 2017

Rent-to-own stores get special debtors-prison privileges

When Grits uses the phrase "debtors prisons" in the 21st century context, I'm typically talking about the practice of government jailing people for unpaid fines and traffic tickets, a practice which has expanded to a breathtaking scale in the last couple of decades.

But rent-to-own stores in Texas and elsewhere still utilize jails as debtors prisons the old fashioned way: By having local prosecutors file criminal charges against people who can't pay their private debts to a commercial vendor, the Texas Tribune reported. "[T]he 1977 provision turned the concept of 'innocent until proven guilty' on its head." Back then,
“The Legislature, in this business-friendly environment ... was all too eager to allow commercial interests to use the criminal statutes to clean up bad decisions they may have made in entering into contracts with people,” said Tom Krampitz, who was assistant director of the Texas District and County Attorneys Association when the bill was passed. “The reason why the [rental] industry deserves a special deal, without sounding too jaded, is they had a good lobbyist.”
Regular readers will perhaps be unsurprised to learn that McLennan County DA Abel Reyna ranks among the worst offenders. "[R]ent-to-own disputes made up 98 percent of the theft of service complaints filed with the Waco and Bellmead police departments from 2014 through the first half of 2017."

MORE: From NerdWallet. AND MORE: From the Texas Tribune. AND: From the Dallas News: "What are you in jail for? I rented a couch."

Friday, October 27, 2017

Of strawmen, bodycams, underdeveloped brains, and Twin Peaks DA buffoonery

Here's a quick roundup of items of likely interest to Grits readers that will also allow me to clear my browser tabs.

Reyna recuses self from Twin Peaks cases
As the Twin Peaks biker shooting cases begin to head to trial, McLennan Co. DA Abel Reyna has begun to recuse himself from the cases. Although he's denied before now that his office is under investigation by the feds, that investigation is the reason he's asking for a recusal. And the truth may be about to come out, anyway. On Monday, according to to a defense court filing, "Testimony from six witnesses will be introduced as evidence in an effort to show FBI agents have been investigating Reyna." What a zoo! Grits would place the Over-Under at how many felony convictions they might obtain in the end - out of 177 initial arrests - at about 1.5. (Post your guesses in the comments.) And I wouldn't be surprised if it turned out to be zero. By all accounts from those who've gone through the evidence, the actual shooters are all dead. And most of the people arrested at the scene, apparently on DA Abel Reyna's orders, committed no crime.

New approaches for 17-25 year olds among TX legislative foci for interim
More on this later, but here are the Texas House and Senate interim charges, which include a number of criminal-justice-related topics. Grits was particularly pleased to see the House Corrections Committee receive an interim charge on the appropriate criminal-justice approach to 17-25 year olds whose brains have not yet finished developing, a topic which was the subject of this Reasonably Suspicious podcast segment from August.

Transparency would make bodycams more useful
IMO, the reason body cameras have had little impact on police behavior is that most of the footage is secret or very difficult to acquire. So it's become a source of secret information to which for the most part only police have access instead of a means to hold police accountable. Texas' body cam law is far too opaque. That footage should be subject to the same open records rules as we've had for dashcams for nearly 20 years, with little ill effect.

DOJ eliminates nearly 70% of UCR data tables
The first Trumpian Uniform Crime Reports from the FBI deleted nearly 70 percent of  the data tables, Fivethirtyeight.com reported. This makes me alternatively want to cry and physically attack the person responsible. It's as though DOJ has figured out that, in the land of the blind, the one-eyed man is king, and so has decided to blind the public by eliminating the information experts rely upon to evaluate criminal-justice trends. Embarrassing and pointless. The feds need that data as much as anyone. This is government shooting itself in the foot.

Pfaff review corroborates Grits on 'strawman' claim
A review of John Pfaff's book Locked In in the Boston Review (combined with a review of James Forman Jr.'s Locking Up Our Own) reiterated Grits' assertion that the "Standard Story" Pfaff purported to debunk amounted to a "strawman." See related Grits commentary. Bottom line: Pfaff's big contribution to debates over mass incarceration was to highlight how prosecutors increased the rates at which they sought convictions, even as crime and the number of arrests declined. But many of his other claims were overstated. And his prescriptions for which priorities the movement should embrace hinged on false assumptions, were mired in error, and recommended strategies which would have significantly set back the progress being made. One will learn a lot from reading Prof. Pfaff's book, as long as one doesn't fall into the trap of following its advice.

Thursday, October 26, 2017

Risk assessments under fire, but critics don't differentiate uses

Grits has been a supporter of risk assessments as part of pretrial detention determinations in lieu of bail, which available evidence suggests leads to far better outcomes. But lately there has been much weeping and gnashing of teeth among liberals over risk-assessment instruments, charging that they result in racial bias depending on which variables are used.


In all these debates, Grits has seldom if ever seen commentators focus on a key distinction between how risk assessments are used at different stages in the process.

Grits is not a fan of their use in any but an advisory capacity for predictive policing or in sentencing. In policing, probable cause must always be individualized to a specific person. And punishments should be decided by judges and juries, not algorithms (although if we're honest, that process is really controlled by prosecutors and certainly isn't immune from racial bias).

But using risk assessments to decide pretrial detention is a horse of a different color, because the alternative is that money bail is required of all. That means people who can't afford bail must rot in jail until their case is resolved, putting immense pressure on even-innocent people to plea. In that circumstance, the benefits to liberty from applying a risk-assessment tool that lets the majority of poor people out pretrial outweighs any detriment from bias in the instrument.

Risk assessments also have well-recognized uses for probation systems which are key to reducing recidivism and encouraging probationers' success. Low-risk probationers subjected to intensive programming (or for that matter, who are revoked to prison) tend to escalate in criminality in ways which are counterproductive, a growing body of research indicates. So assessing risk/needs is key to deciding what programming should be assigned.

In those circumstances, Grits remains unconvinced that bias from these instruments is greater or more harmful than the bias being exhibited by judges. For example, the videos of bail hearings before magistrate judges which arose out of the Harris County bail litigation demonstrated near-universal disrespect for misdemeanor defendants' pretrial liberty interests, whereas the risk assessment would have freed most of them. So which is more biased? And which bias is more concerning?

Predicting "future dangerousness" (as the courts have dubbed risk assessment by juries in the sentencing phase of capital cases) is always a dubious prospect, but also a fundamental part of what the justice system does. In most phases of the process, those decisions should probably be left to the decision-makers traditionally in charge of them.

In the case of pretrial detention, though, where the defendants are still presumed innocent by the system, IMO opposing the use of risk-assessment tools amounts to allowing the perfect to become the enemy of the good. Ditto for probation where there's a pragmatic need to assess probationers' risk in order to make decisions about programming, and risk levels can change significantly over time.

The desire to purge the system of racial bias is understandable, but please let's not throw the baby out with the bath water.