Tuesday, April 25, 2017

Lies, police shootings, and the disinfecting sunlight of dashcam video

While everything is fluid at the capitol, here are a few items from outside the pink dome that merit Grits readers' attention:

Twin Peaks fiasco dragging on endlessly, expensively
Two years after the Twin Peaks biker shootout in Waco, there are "no trials in sight," reported the Waco Tribune Herald. Grits hopes we've seen the last of state-government bailouts in the form of Governor's grants to McLennan County covering costs in this case. The rest of the state shouldn't have to pay for the McLennan District Attorney's bravado and buffoonery. The reason for the outlandish cost is primarily the decision by DA Abel Reyna to charge dozens of people just for being there even though most people who've seen the discovery agree that the actual shooters were all killed by police snipers. Federal litigation has already ensued. Most of these cases should have been dismissed long ago. Let folks in Waco pay for it.

In favor of innocence reforms
Attorney Charles Eskridge had a nice letter to the editor in the Houston Chronicle articulating support for innocence reforms in HB 34 by Smithee, which arose from the Timothy Cole Exoneration Review Commission.

Parole revocations not Texas' big problem (probation is)
Grits wasn't surprised to learn from the Marshall Project that Texas doesn't rank high on the list of states that revoke parolees for technical violations. After the 2007 decarceration reforms authored by Sen. John Whitmire and Rep. Jerry Madden, parole revocations for technicals plummeted. It was probation departments, where revocations decisions are made by local elected judges, where revocations for technical violations have remained stubbornly high.

Lies, damn lies, and (not always) secret video
Here's another case, this time out of Bell County, where an unarmed man was shot and law enforcement lied about what happened. Last August, "Bell County Sheriff Eddy Lange told media representatives gathered at the scene that [Cpl. Shane] Geers shot [Lyle P.] Blanchard during a “gunbattle.” But dashcam video showed Mr. Blanchard was unarmed, 40 yards away. This is another prime example why police records including video should be subject to the Public Information Act even in cases where a conviction was never obtained. Those are exactly the instances - like this one, where the subject of the video is dead - where there's the greatest public interest in that information being made public.

Questioning the rise in frequency at which 'unarmed men allegedly reach for empty waistbands when facing armed officers'
An incident in Houston was the subject of a dissent by Supreme Court Justice Sonia Sotomayor decrying the court's one-sided jurisprudence when it comes to police shootings. See coverage from the Houston Press. The ABA Journal reported:
Sotomayor lobbed her complaint in a dissent from a cert denial (PDF) in an excessive force case. The dissent, joined by Justice Ruth Bader Ginsburg, included a footnote that read, “Some commentators have observed the increasing frequency of incidents in which unarmed men allegedly reach for empty waistbands when facing armed officers.” 
Sotomayor argued that the court should have accepted a case that involved Ricardo Salazar-Limon, who was shot in the back by a Houston police officer as he walked back to his car. The officer said he shot Salazar-Limon in October 2010 because the suspect ignored his order to stop, turned toward the officer, and raised his hands toward his waistband. Salazar-Limon had said he was trying to walk away from a confrontation. 
The shooting happened after Salazar-Limon was pulled over for suspected drunken driving and then resisted being handcuffed. Salazar-Limon sustained “crippling injuries” as a result of the shooting, according to Sotomayor. 
Because there were competing accounts of the incident, the case should not have been decided by summary judgment, Sotomayor said. 
The cert denial, Sotomayor wrote, “continues a disturbing trend regarding the use of this court’s resources. We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force. … But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.”

Friday, April 21, 2017

Killing suspect shouldn't justify secrecy about police actions

At the Statesman, Eric Dexheimer has a story on a young man repeatedly tazed by police while he was high on LSD - including a sustained zap to the crotch, at one point in the video - but because the boy died and so was never convicted of anything, the family couldn't access any information about the case under the Public Information Act.

Dexheimer offered this little-recalled history of how these records - which would have been open a quarter century ago in Texas - became closed:
At one time, most police records in Texas were considered open to public inspection. Between the writing of the state’s open records act, in 1973, and the mid-1990s, the attorney general issued a string of opinions concluding that, except for an ongoing prosecution in which releasing details might compromise a case, most law enforcement documents were considered public. 
In 1994, however, the Harris County district attorney’s office sued the state to keep private its closed investigative files. In 1996 the Texas Supreme Court agreed with the prosecutors. 
With the status of the law murky, in 1997 Texas lawmakers wrote a new statute. It specifically excluded from public view “information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication.” One stated reason was citizen privacy. 
“If there is an investigation about potential criminal wrong-doing and the decision is made that no charges will be filed, the person has some privacy right not to be characterized as a person under investigation,” explained James Hemphill, an Austin lawyer with the firm of Graves Dougherty who represents the American-Statesman on media law and open-records issues. 
Another reason was simply “to try to withhold as many records as possible,” said Joe Larsen, a Houston open records attorney. Added Laura Prather, an Austin attorney who specializes in First Amendment protections: “Law enforcement has a very powerful lobby.” 
Since then, the clause has been used to summarily deny police and prosecution closed-case records from reporters and attorneys. Yet it has also thwarted families such as the Dyers seeking information and, occasionally, legal recourse. 
In March Rep. Joe Moody, D-El Paso, filed a bill to compel release of police records if, like Graham, the suspect had died; or, even if not, gave his consent to their release. “The intent of the law was to not interfere with a pending investigation,” said Prather, who promoted the measure for the Freedom of Information Foundation of Texas. “It doesn’t apply if the suspect is dead.. 
Moody, a former prosecutor, said he was persuaded to change the law simply because government records should be considered open to public scrutiny unless there is a compelling reason to withhold them. With police reports of deceased subjects, “I don’t see the interest it serves by withholding that,” he said.
Grits has written about these issues many times. In 1996-97, Texas went from having one of the very best open records laws regarding law enforcement to one of the worst.

Moody's legislation is a good start, but at some point the Lege needs to revisit these broader open records issues surrounding law enforcement. Cases where there is no conviction are exactly the ones where you most need open records - cases may be dismissed or never filed because of misconduct or error, for example, that can never be discovered while the records are secret.

A big reason why the law passed in 1997 was so bad is that, at the time, there was quite literally no active criminal justice reform movement in Texas aimed at the state legislative process and there were no interests at the table to counter law enforcement's desire for maximal secrecy. Indeed, the reason Grits first began making the trek to the capitol was my horror that that bill had passed with no substantive opposition.  That would not be the case today, so perhaps it'd be a good time to revisit these important questions now that the citizenry is more engaged on these topics.

Poll: GOP primary voters support raise-the-age, decarceration bills

Republican pollster Mike Baselice has released a memo with opinion poll results on several important criminal justice topics (poll here, coverage here), focusing especially on the views of Republican primary voters. For example, a whopping 86 percent of GOP primary voters reacted positively to this position on "raise the age" legislation approved on second reading yesterday by the Texas House:
Currently, 17-year-olds in Texas who are convicted of a crime are automatically placed in the adult justice system. Texas is one of only seven states to do this, even though 95% of 17 year-olds are arrested for nonviolent offenses. Hearing this, do you favor or oppose starting 17-year-olds in the juvenile justice system while giving a judge the discretion to move them to an adult system on a case-by-case basis?
On drug penalties, wrote Baselice, "Large majorities of respondents from the all voter (82%) and Republican primary voter (75%) samples favor making possession of a small amount of drugs among nonviolent people a misdemeanor instead of a felony."

See the complete polling memo for more details.

Tuesday, April 18, 2017

Declining juvie crime, post-'07 reforms, make raise-the-age bill practical, feasible

(UPDATE-4/20: The Texas House approved HB 122 by an 83-53 vote on second reading. MORE: And on to the senate with 92 votes on third reading.)

It's that time of the year at the Texas Legislature where everything moves so fast and the politics are so fluid that horse race coverage (what will or won't pass) is basically meaningless. Now is the time for observation and debate on these topics, not speculation and prediction. At this point, soothsaying is beyond the ken of even grizzled professionals when it comes to legislative outcomes. For the most part, for bills moving through the process, nobody really knows what will happen, or can know.

Indeed this time of the legislative session is less like a horse race and more like a rodeo - a danger-filled spectacle ruled by clowns. And as our friends in the rodeo like to say, there's never been a horse that can't be rode, never been a cowboy can't be throwed.

So, when one sees articles like this one from the Texas Tribune's Jonathan Silver depicting the demise of Raise the Age legislation in the senate before it's even had a vote in the House, one may take it with a grain of salt. This sort of coverage too often substitutes for actual reporting on the subject matter being debated and allows politicians to make everything about themselves instead of the issues underlying important legislation.

And to be clear, HB 122, the raise-the-age bill, is important legislation. Most parents of 17-year olds don't yet consider them adults, even if their government does. Texas is one of only six states which still treat 17 year olds as adults for purposes of prosecuting them (though not for purposes of buying cigarettes or alcohol, for example).

Through this debate, we're learning a lot more about the types and scope of juvenile crime. Texas Appleseed recently published a report analyzing arrests by age category to discover the impact of HB 122. They found that arrests of 17-year olds declined every year since 2012, and 87 percent of crimes committed by this cohort were nonviolent offenses - mainly marijuana possession and theft.

Of 17 year olds convicted of drug crimes, only 1.2 percent were for dealing - nearly all of them marijuana. In general, "The rates at which they are arrested along with the offenses for which they are booked resemble the rates and offenses for 16-year-olds; yet their different treatment leads to very different outcomes."

Arrest rates for 17 year olds overall are declining, said the report, from 70 arrests per 1,000 in 2013 to 58 per 1,000 in 2015. Texas arrested more than double the number of 17 year olds in 2008 compared to 2015.

Texas juvenile probation directors are split on the question of raising the age, with Harris County's opposing the bill but others, including in Dallas, more supportive. Nationally, most juvenile-justice professionals consider the lower age inappropriate and lamentable.

Appleseed made an argument which your correspondent has separately made in conversations about the bill: That juvenile reforms since 2007, along with declining juvenile crime, have quite capably set the stage for this reform:
In 2007, the Texas Legislature began a process of restructuring the juvenile justice system, passing the first of several bills and budget initiatives that would move youth out of ineffective and expensive state secure facilities and into community-based alternatives. The process resulted in a 61 percent decrease in juvenile arrests between 2007 & 2015. At the same time, funding was shifted away from state secure facilities and into juvenile probation. A 2015 report published by the Council of State Governments (CSG) showed that per capita funding for juvenile probation departments increased 68 percent between FY 2005 & FY 2012. 
The same CSG report concluded that while the news was generally good for Texas reforms – with youth rehabilitated locally showing better outcomes than those committed to state secure facilities – there was room for improvement in recidivism rates by targeting resources and services on youth most likely to reoffend. Specifically, CSG found that the counties the researchers studied failed to “effectively target…[juvenile probation] supervision resources and services on those youth most likely to reoffend.” Instead, counties continued to place youth at low risk of reoffending in services and programs that they didn’t need – likely contributing to higher re-offense rates. 
Taken together, the large reduction in arrests, increase in funding for juvenile probation, and findings from CSG showing more opportunity to effectively utilize state taxpayer dollars indicates that Texas’ juvenile system is well-poised to absorb 17-year-olds.
That pretty much coincides with my view. In 2007, Grits might have agreed that the state was ill-prepared to make this shift. Today, after a decade of juvie decarceration coupled with double digit declines in juvenile crime, the system seems much more capable of handling an influx of 17 year olds. That's especially true if counties can more “effectively target…supervision resources and services on those youth most likely to reoffend,” which they ought to be doing already, anyway.

Texans can go here to send their state legislators an email supporting HB 122. Get it done before Thursday, when legislators take a vote. Or else go here to find your state representative's office phone number and call them before Thursday to ask that they support the bill.

Thursday, April 13, 2017

17-year olds' crimes more like juveniles', and other stories

Here are a few odds and end that merit Grits' readers' attention this morning.

Sparing no expense
If Harris County were as willing to spend the taxpayers' money on indigent defense and programs to divert people from jail as they are to pay $550-per-hour lawyers to fight bail reform, it's likely the civil rights litigation over the county's bail system that's going on there right now would never have been necessary. Bail reform legislation was heard in the senate last week and is scheduled to be heard in committee on the House side on Monday.

'One of the most despised programs in state government'
The Driver Responsibility Program is "one of the most despised programs in state government" but remains difficult to abolish. However, the senate seems prepared to go a lot further down that path, and with more serious intent, than the Lege has previously been willing to do. This would be easier if we weren't in the middle of a budget year flooded with red ink.

Raise-the-age proposal coincides with plummeting juvie crime
Seventeen year olds commit crimes which are more like juvenile cohorts than young adults, according to a new study released this week. And juvenile crime has been going down. Reported Brandi Grissom: "According to the study, arrests of 17-year-olds have been dropping since 2008, falling by 17 percent from 2013 to 2015. The drop-off in arrests for 16-year-olds has been even steeper, falling by 26 percent during the same period." UPDATE: Excellent news: Texas' raise-the-age legislation, HB 122 (Dutton), has been set for a House floor vote on Thursday, April 20.

Dallas approves citations instead of arrests for pot
The Dallas city council on a 10-5 vote implemented a cite-and-release policy for low-level marijuana arrests. The proposal left out small portions of north Dallas not in Dallas County, which was the cause of at least one council member's opposition. Go here to send an email to your state representative asking them to pass HB 81 punishing user-level marijuana possession with a civil penalty.

Bright side to a crime-scene investigation snafu
Shoddy work by a crime-scene investigator in Houston could put dozens of open cases in jeopardy, and maybe some closed ones. Ugh. On the bright side, a decade or two ago such revelations probably wouldn't be met with a public mea culpa and systematic notification of the defense, much less a dedicated division within the DA's office to search for wrongful convictions. Humans are flawed and problems will happen. What's slowly changing are that systems and mechanisms for responding more responsibly are beginning to take root.

Former prosecutor, alleged sexual harassment victim, died of an overdose
A former Tarrant County prosecutor who received a $375,000 settlement from the county after accusing then-DA Joe Shannon in a sexual harassment suit has died of an overdose after mixing prescription drugs, the Star-Telegram reported. What a tragic end. It took a lot of guts to stand up to her boss/the sitting DA like that.

Wednesday, April 12, 2017

'Don't fill up the jails': An ode to HB 81

Grits has been so busy at work that I forgot to share this here! See a new video from Just Liberty created to promote HB 81 (Moody) reducing the penalty for user-level marijuana possession to a civil infraction punishable with a $250 fine. Folks on the Just Liberty email list already got a sneak preview after they emailed their legislators about the bill. But for the rest of you, check it out:



We came up with the song/video to encourage people to contact their state legislators in support of the bill. (Go here to do that.) Many thanks to producer/guitarist extraordinaire Gabe Rhodes who put the music together, and to Sukyi McMahon who came up with the video content.

Bills reducing penalties for low-level marijuana possession have passed out of the House Criminal Jurisprudence Committee several times now, beginning back in 2005, but have never before been graced with a vote from the full House. Perhaps 2017 will be the year we finally get to discover where Texas pols stand on the question.

It's unclear whether the reason legislation reducing pot penalties never passed before was the conspicuous lack of a theme song. But in case that turns out to have been the problem, this year you can check it off the list. :)

Sunday, April 09, 2017

Paltry Grits posting rate masks busy time at #txlege

For readers disappointed with the paltry recent posting rate here on Grits, I should mention that most of my writing these days is happening on Just Liberty emails and action alerts. If you haven't signed on to our advocacy list, please do so. Otherwise, here are a few odds and ends which merit readers' attention.

Good Samaritan bill up in House committee
Rep. Ryan Guillen's Good Samaritan legislation (HB 73) is up on Monday in the House Criminal Jurisprudence Committee, but the biggest threat to its passage remains uncertainty about Gov. Abbott, who vetoed the bill last year and is now moving the goal posts regarding his concerns. This is a major public health concern. Overdose deaths are now twice as common in Texas as murders. Go here if you'd like to send a message to Gov. Abbott asking him to support Texas' Good Samaritan legislation.

Debtors prisons and deconstruction of the administrative state
On the same Criminal Jurisprudence agenda Monday, Rep. James White has a great little bill, HB 3279, limiting various debtors-prison practices. Hope to see this one get some traction. Anyone truly concerned with "deconstruction of the administrative state" will want to begin here. See a fact sheet on the bill from Texas Appleseed and the Texas Fair Defense Project.

Sandra Bland Act, DRP, up on Tuesday
Big day in the Homeland Security and Public Safety Committee Tuesday morning, with the Sandra Bland Act (HB 2702) and the most likely vehicle for Driver Responsibility Program repeal (HB 2068) both on the committee's agenda.

Halted execution implicates pair of capital bills
The Court of Criminal Appeals halted Paul Storey's execution last week in a move which implicates a couple of pieces of pending legislation. Prosecutors told the jury in the death-penalty phase of Storey's case that the victim's family wanted the death penalty, which turned out not to be true. Jurors were given faulty jury instructions which HB 3054 by Herrero/Smithee aims to fix. That bill was heard last week in the House Criminal Jurisprudence Committee and may get a vote as early as Monday. Meanwhile, the remaining issues in Storey's case reportedly regard whether Storey's appeals attorney could have reasonably discovered the true feelings of the victim's family about the death penalty. In other words, once again the quality of direct capital appeals are being called into question, which brings us to Corrections Committee Chairman James White's HB 1676 creating a new capital public defender for direct appeals (it'll need a catchier name than that). Maybe it'll turn out Storey's attorney couldn't have known the family's views, or maybe he just didn't ask them. But minimalist investigation and slipshod work product on direct appeal, along with cost effectiveness, are exactly the recurring problems that prompted the East Texas Republican to propose this new office. The appellate process should have vetted these subjects long before now. Storey's case could be a poster child for why these bills are needed.

When innocent SWAT raid victims defend themselves
A Corpus Christi man has sued the police department after a wrong-house SWAT raid in which he shot three officers. He was jailed for two years before being acquitted by a jury. Noted the Caller Times' Krista Torralva, "Police use of no-knock raids have recently come under public scrutiny and Rosas’ case has been included in national conversations. The Washington Post and New York Times wrote about Rosas’ case after his acquittal."

The End of Local Laws
Governing magazine says Gov. Greg Abbott wants to end local laws.

Richard Dreyfuss on Kerry Cook
Actor Richard Dreyfuss discusses Kerry Max Cook with Texas Monthly's Michael Hall. Grits couldn't agree more with Dreyfuss' answer to Mike's final question.

You gotta start somewhere
The Texas Tribune has published a couple of good primers on testifying at the capitol and making your voice heard by lawmakers. Nicely done.

Progress, slow but broad
While some folks understandably express impatience at the slow pace of criminal justice reform, it's easy to underestimate how difficult it was just to stop the upward trajectory of mass incarceration and begin to turn the curve downward. Pew's Adam Gelb describes the baby-step progress made on that front at the state level.

Friday, April 07, 2017

Parallels between Obamacare and Driver Responsibility surcharges, and other stories

A super-busy week at work has kept Grits off the blog, but that doesn't mean there hasn't been a lot going on.

Tragic murder of deputy constable no argument for enhancement bill
The tragic ambush murder of a deputy constable in Houston was touted by some this week as an argument for legislation boosting penalties for assaulting police officers. But killing a cop is already capital murder. How much more can you "enhance" the penalty than a death sentence? Whatever arguments may exist for or against the bill, this episode is unrelated. After all, the possibility of a death sentence didn't deter this suspect, why would anyone think a lesser punishment would have done so?

Focus on suicide to prevent police officer deaths
Meanwhile, a Marshall Project email noted this week that, "29 police officers committed suicide in the first quarter of 2017. LAW OFFICER Related: That’s almost three times the number of cops (11) who have been killed by gunfire this year. OFFICER DOWN MEMORIAL PAGE." This highlights an issue Grits has discussed for years: While police officer murders receive far more sensationalist coverage, suicides and traffic accidents are the more frequent causes of officer deaths, and little is done to stop them.

Opposition to bail reform overstates case 
Sen. Whitmire's and Rep Andrew Murr's bill requiring risk assessments before bail is set does NOT require judges to follow the assessment's recommendations. It's entirely voluntary for the judges (which some say privately could be its Achilles heel - that there should be a presumption for low-risk defendants to receive personal bonds). But to hear the bail bond industry tell it, you'd think the bill requires counties to gather mobs and hound them out of town with torches and pitch forks. What a pile of horse hockey. As the Houston Chronicle opined this week, opposition to bail reform is becoming more or less indefensible. Few of the criticisms are rooted in reality, and almost entirely represent a (overstated) complaint from bail bondsmen and the politicians they bankroll about potential lost revenue.

Hate crime by jail guards? 
Felony hate crimes charges have been filed against two Walker County jail guards for abusing an inmate in a racially tinged incident.

Immigration roundups and empty detention facilities: A match made in Hell 
Texas county jails are hoping that the Trumpian immigration roundups will result in new detention contracts for empty, overbuilt jails constructed on spec at the height of the incarceration boom. And private prisons are pushing at the Lege, in the face of significant opposition, to become licensed child care providers so they can house immigrant children detainees. This is why private prison stocks soared after the election, but Grits wouldn't be so quick to invest. The president's budget cutting tendencies probably will mean most of these facilities still can't find contract prisoners to fill them.

Parallels between Obamacare and the Driver Responsibility Program
The Driver Responsibility Program is Texas' version of Obamacare. The program is broadly despised, the leadership wants to "repeal and replace" it, but fears doing so because people will lose access to health care.  Debates over the DRP this year are all about how to fund hospital trauma centers if the program goes away. 
The Texas House found a way in the budget to cover about a third of the money for trauma centers, which could make way for easier repeal or scaling back of the Driver Responsibility surcharge. Rep. Mando Martinez pulled down an amendment to the budget that would have redirected money from border security after being told that more than a $100 million extra had already been designated for trauma centers in the budget, But the vehicle for repeal will likely move first in the Senate and they can't figure out how to proceed. Folks in the House need to make sure that extra money stays tied to surcharge repeal and doesn't just turn into an extra gift if repeal doesn't pass. The hospitals have been playing hardball on this and surcharge opponents must do so as well if the program is going to go away.

Why it's not necessary for police to shoot someone armed with a knife

Saturday, April 01, 2017

Bad enhancement bill boosts pressure for false convictions

On Monday in the House Criminal Jurisprudence Committee, Rep. Todd Hunter has a bill up - HB 2908 - that contains no redeeming qualities that I can tell. Grits dislikes everything in it below the author's name.

Essentially it makes offenses motivated by bias against a police officer hate crimes and jacks up up already-enhanced penalties for assaulting a cop. These penalties are already so high they can and do coerce false convictions. In San Antonio, Officer Matthew Belver beat Carlos Flores while handcuffed, then accused him of assaulting a peace officer. Flores pled no contest to avoid the possibility of a very long sentence, even though video of the incident shows he was not the aggressor and did not assault Belver. (The Bexar DA's Conviction Integrity Unit later discovered Mr. Flores was innocent and convinced the courts to overturn his conviction.)

So the penalties facing Mr. Flores were already so severe that he pled no contest rather than risk a trial. (Nobody outside the police department at the time knew video of the incident was available.) Increasing those penalties creates even greater pressure for innocent defendants to succumb and plea guilty to charges they didn't commit.

Similarly, HB 2908 creates a new second-degree felony offense of unlawful restraint if you're restraining a police officer "in retaliation or on account of an exercise of official power." So, for example, when Trooper Brian Encina reached into Sandra Bland's car to arrest her for failure to signal a lane change, she would have committed a second-degree felony under this bill for grabbing his wrist to stop him.

The bill repeats this pattern in several places throughout the law, senselessly boosting already boosted penalties. Terroristic threat - already enhanced from a Class B to a Class A if the target is a public servant - would be boosted to a state jail felony under the bill if the target is a police officer. Intoxication assault would be enhanced a second time to a first degree felony (up to life in prison) if the victim is a police officer; right now it's a second degree felony if the victim is a police, firefighter or EMS tech, third degree for everybody else.

These enhancements won't change behavior and won't make anyone safer. After all, all these crimes are already enhanced for police-officer victims and apparently that hasn't solved the problem. But if the only tool the Lege can find is a hammer, then everything apparently looks like a nail. So this legislation goes back to the enhancement well.

Finally, the bill mandates a rather ham-handed propaganda campaign by the Texas Commission on Law Enforcement to "develop and implement a campaign to educate children in this state on the value that peace officers bring to a community." What this peace officer licensing agency knows about educating children is anyone's guess, but the point isn't really for the children to be educated - it's to pass something that leaves the public with an impression that the Legislature backs law enforcement. Hell, so do I. But this is not the way.

Book Review: Pfaff's Locked In directs reformers in wrong direction

Grits has spent a fair amount of the last year thinking about Fordham law prof John Pfaff's theories on mass incarceration - first in a couple of law review articles he wrote, then on his Twitter feed, and finally in his recently published book: Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. I've written before that his data observations hold true for Texas, almost puzzlingly so, but his recommendations to me never seemed quite right. After reading the book-length exposition of his ideas, I now can say why.

Unfortunately, one can follow Prof. Pfaff's logic all the way to the end and, while much of it is thought provoking, still find it to be of little use to reformers seeking change on the front lines in the states, which is where he rightly insists the real action of criminal-justice reform takes place. I particularly regret coming to that conclusion, both because I've learned a lot thinking about the issues he raises and also because he was kind enough to thank your correspondent in the book's acknowledgements, as well as send me a free review copy. But at the end of the day, he's just wrong about where the American criminal-justice reform movement should focus and why.

Pfaff frames his critique as an antidote to what he calls the "Standard Story" - a straw man to which he attributes every wrong-headed statement he can find made by a reformer while ignoring or downplaying all areas in which their analysis makes sense.

His big critique is to claim that the Drug War is an insignificant contributor to mass incarceration, with Michelle Alexander's New Jim Crow book coming in for particular criticism. Pfaff's position is that most offenders in prison are there for violent offenses, not nonviolent ones. So, he claims, reformers should focus mainly on sentencing policies for violent offenders. Pfaff considers reforms focused on nonviolent offenses basically small-time and mostly irrelevant, ignoring the Big Kahuna of violent offenders.

On its face, this rings true for Texas, where 56 percent of Texas prisoners were incarcerated for a violent offense in 2015, compared to only 16 percent for drug offenses. (Source for all TDCJ stats in this post.) That's about the same as the ratios in the 30+ states (not including Texas) for which Pfaff analyzed data. But that's a misleading analysis because it focuses on a snapshot of the prison system instead of treating its population as dynamic and ever changing.

TDCJ released 70,311 inmates in 2015 and took in 69,066 new "receives," so there is a lot of churn. While the majority of offenders housed in TDCJ in 2015 were convicted of violent offenses, people convicted of violent crimes made up just 23 percent of new admissions that year.

This is particularly ironic because Pfaff's other big criticism of reformers and the Standard Story is that we shouldn't be focused on population totals but reducing the total number of admissions. But admissions growth has been in the nonviolent property/drug crime area which Pfaff insists reformers over-emphasize!

To be clear, we cannot embrace Pfaff's two big recommendations simultaneously. If we focus on reducing admissions, we must focus on nonviolent offenses. If we focus on violent offenses, as he insists we must, then they're just a small fraction of annual admissions. These are contradictory suggestions. And they're his two main points.

Indeed, the quickest way to reduce admissions is to reduce penalties along the margin between the lowest-level felonies (in Texas, state jail felonies), and higher-level misdemeanors (in Texas, Class As). These are almost entirely nonviolent drug and property offenses. Pfaff supports these changes, because it would be ridiculous not to, but that stance only highlights the disconnect between the rest of his analysis and what clearly are the most effective near-term decarceration policies.

Pfaff discovered through analyzing state court filings that the average length-of-stay for people released from incarceration is going down, taking this to mean that long sentences aren't a major cause of mass incarceration. But those numbers are averaged and mask a more nuanced dynamic. Really, there are two categories of prisoners: Short-timers who account for the churn, and long-timers who have mostly been convicted of violent offenses and have quite long sentences.

In FY2015, for example, the 70,311 people released from TDCJ served an average of 4.5 years on an average sentence of 8 years.  But those are averages. Many sentences are shorter, and the numbers are driven up by long sentences for a smaller number of violent crimes - a fact which complicates his "ignore sentence length" suggestion quite a bit. A whopping 63 percent of people convicted of violent offenses in TDCJ were in 2015 serving sentences longer than 10 years. By contrast, just 12 percent of new admissions had received sentences for longer than a decade. So if Pfaff wants reformers to focus mainly on violent offenses, they'd have to consider sentence length much more than he suggests.

Not only is Pfaff wrong to belittle efforts to reduce penalties for nonviolent offenses, he's also wrong that such efforts preclude focus on reducing incarceration of people convicted of violent crimes in state prisons. In Texas, the state increased release rates for violent offenders at the same time the Legislature was focused on reforms aimed at nonviolent crimes. It's simply not been my experience that the rhetorical problems he hypothesizes from the ivory tower play out that way in the real world (a sentiment I've expressed to him in private correspondence a time or two).

Pfaff also underestimates, to the point of downplaying, the role the drug war played in reducing civil liberties protections for defendants across the board and incrementally increasing government power across an array of institutions, not just prosecutors (although they were a principal beneficiary). These policies don't directly affect the size of the carceral state in the same fashion as sentencing statutes, at least not in ways which can be measured, but indirectly they empower the prosecutors who Pfaff says are driving the train. The drug war and sex offenders are the two bugaboos which have been used to justify all manner of state empowerment at the expense of the individual, and those losses are as worthy of criticism and reactive reform as are the over-incarceration issues with which Pfaff is more concerned. IMO they're also more related in practice than he appears to realize.

None of which is to say his analysis is entirely wrong, just the political and policy recommendations he draws from them. One of Prof. Pfaff's best observations - and this is another area where Texas' data match his conclusions - was to show that much of the continued incarceration growth in recent years stems from prosecutors securing convictions more often for ever-more petty crimes, with the number of prosecutions per arrest doubling over the period he studied (from one in three to two in three).

That pattern holds for Texas as well. It's how prosecutors and cops justified ever-growing budgets and staff in an era of declining crime: They just prosecuted more nonviolent offenses, particularly ones with no victims like drug crimes or weapons charges. It's the main reason, for example, why indigent defense costs continued to rise even as crime declined.

Some of Pfaff's critiques of fuzzy-headed reformers are valid, but he more frequently pretends debates with substantial gray areas are black-or-white questions, even as he himself struggles mightily to suggest valid solutions which would have better outcomes than the ones he criticizes.

The solutions section of the book, in fact, is where Pfaff's critique comes completely apart, to my mind. Bottom line: It shows that the prosecutor-related issues he raises aren't really ones reformers are unwilling to address so much as an area where there aren't very many good reform options. He wants sentencing/plea bargaining guidelines, for example, but the federal sentencing guidelines caused incarceration to increase and there are no real-world examples where they've had the effect he hypothesizes.

IRL, many reforms aimed at prosecutors aren't focused on sentencing outcomes. The innocence movement has been successful in Texas at achieving reforms aimed at prosecutors, from legislatively mandating open-file discovery to requiring corroboration for informants to providing habeas recourse for convictions based on junk science. Those focus on the accuracy of convictions, not sentencing. But improving accuracy assigns additional burdens to the state which may affect volume at the margins, both by avoiding inaccurate false positives and requiring more resources-per-case to prove. Innocence reforms can also have the benefit of affecting the culture of prosecutors' offices, reinforcing the "seek justice" part of  their mandate over seeking convictions. Texas' experience shows they also can change the dynamics surrounding what voters demand from elected District Attorneys, which indirectly supports less punitive carceral policies.

Similarly, bail-reform legislation currently in play at the Texas Legislature could reduce prosecutor power in plea negotiations because more defendants won't be held hostage in jail until they agree. But those sorts of changes only indirectly (if still, probably, significantly) affect sentencing outcomes. It's not that reformers ignore prosecutors, but more that prosecutors are at best targets of opportunity. They are shielded from reform in many ways, and change can only happen in areas where one can secure a toehold. For that reason, one area where I strongly agree with him is the question of improving metrics to judge prosecutor performance.

Pfaff correctly emphasizes that federal reforms won't do much and the real reform action must happen at the state and local level. Readers might be forgiven, though, if at times reading Locked In if one mistakenly believed Pfaff were the first person to understand that dynamic. (The notion first occurred to your correspondent sometime in the '90s.)

Two suggestions by Prof. Pfaff have been under-emphasized in popular accounts of his work but would make a big difference. The first is federal funding of indigent defense. He's pointed out that for $4 billion, the feds could double indigent defense spending in America. Not sure that's possible under the current administration, but it's a worthy idea for down the line.

His other (to me) most other notable suggestion was offered as an aside in the recommendations chapter, but I think it has legs. He cited another academic paper (see here) which suggested a Cap-and-Trade system for incarceration similar to the system used for pollution controls. Basically each county would receive an allocation of sentencing time, and if they wanted to punish people more they'd have to purchase it from other counties in a market setting. That would place financial responsibility for over-incarceration on the local actors most responsible for it. That's an awesome idea and deserves to be developed into a legislative proposal (not this year, though!). Grits will without question return to it later as it is a truly new solution to an old problem. But it's offered as a throwaway line at the very end of the book, it's not a central recommendation.

Bottom line: On the drug war, Pfaff is more right than Michelle Alexander, but less right than he thinks. When it comes to guiding reformers focused on decarceration, however, he is less right than those basing their proposals on what he disdainfully dubs the "Standard Story."

Grits appreciates Pfaff's work and analysis: We need more thoughtful quants looking at big-picture data patterns and testing old assumptions. But implementing reform in a real-life political landscape is a different matter entirely from crunching numbers with your grad students at Fordham. Prof. Pfaff suffers from more than a bit of hubris to imagine that his skill at the latter qualifies him to make strategic judgments regarding the former. Reformers may run across suggestions in the book (like the cap and trade idea) that make sense to pursue. But overall, they would be poorly served to adopt his policy priorities.