Sunday, August 20, 2017

Judges fumbling forensics decisions, meet-and-confer challenged, prisons and rural economies, and other stories

Here are a few odds and ends that may interest Grits readers while I'm focused elsewhere:

3,500 and counting support Just Liberty petition to limit trooper arrests
With the Public Safety Commission scheduled to consider the petition for rulemaking from Just Liberty and 15 allied organizations on Thursday, more than 3,500 Texans so far have emailed DPS Director Steve McCraw in support of more restrictive arrest policies for Class C misdemeanors. Go here to join them.

Prisons and rural economies: A case study
Prisons prop up the economies of small towns which otherwise would not have enough employment for those who live there. Palestine, with five nearby units employing 2,645 people, is a prime example. In the early '90s, then-Gov. Ann Richards touted tripling the size of the prison system as a means of rural economic development which she hoped would help stave off a GOP takeover of the state. Rural voters welcomed her investment but rejected her politics, voting for George W. Bush in the 1994 election. Meanwhile, the prison bonds she championed financed prison construction throughout the rest of the decade. In recent years, Texas has closed eight prison units, but most of them have been in areas where the local economy had shifted to other industries. Where locals rely on prisons as primary employers, closing them remains difficult.

The case for a warrant requirement on cell-phone location data
Dallas attorney Mike Lowe made the case for a warrant requirement for cell-phone location data in a recent blog post anticipating a case at SCOTUS, US v. Carpenter. See also an amicus brief from Fourth Amendment scholars on the subject.

Contemplating end of 'meet and confer' at Austin PD
Accountability advocates in Austin are suggesting the city pull out of its "meet and confer" agreement and decide funding for police as part of its annual budget:
Critics of Austin police dominated a city budgeting session Thursday evening as the City Council heard from scores of residents on what 2018 financing priorities should be. 
Those should be less money for policing and more money for social services, a large group of activists argued. They urged the council to abandon contract negotiations with the police union and instead return to funding police annually without a multiyear union contract ... 
The Austin Justice Coalition, a nonprofit organization focused on helping minorities, outlined eight changes it wants to see made to how police misconduct cases are handled. They include considering past misconduct in future discipline, eliminating the statute of limitations for discipline, considering misconduct in weighing promotions and stopping the practice of sealing officer misconduct files. 
The group said the current police contract protects misconduct and rewards a policing system in need of reform.
'How the poor get locked up and the rich go free'
An LA Times editorial included a discussion of Harris County's bail litigation.

Judges fumbling forensics decisions
Judges keep allowing disavowed science into evidence. Texas' junk science writ might help wrongfully convicted defendants seek relief on the back end, but only judges can prevent non-probative, non-scientific "forensic" analysis into evidence in the first place. The framework from the Daubert case, which laid out modern standards for admitting expert testimony, has simply broken down in the wake of evidence that many forensic methods are less reliable than long assumed. It simply doesn't provide enough leeway for judges to exclude non-probative testimony even after its falsity has been established. E.g., in Just Liberty's Reasonably Suspicious podcast the other day, we discussed a case where forensic DNA analysts excluded a suspect using one analysis while those using another type of mathematical calculation, based on the exact same data, matched the suspect. The 12th Court of Appeals said the solution was to let in both results into evidence and let the jury decide! That's hardly playing much of a "gate keeper" function.

Emily Gerrick: Chipping Away at Debtors Prison Policies

On the latest Reasonably Suspicious podcast, I interviewed Emily Gerrick, a staff attorney with the Texas Fair Defense Project specializing in policies surrounding people jailed for traffic-ticket debt. We only used a 5-minute segment for the podcast, so here's our full conversation for those interested, ranging from recently passed reform bills, jailing drivers for failure to pay tickets, the ignominious Driver Responsibility surcharge, and what local municipal court judges and Justices of the Peace can do to minimize debtors prison practices under current law.

Listen to the full interview here or read a transcript below the jump:


SEE ALSO: A report from the Fair Defense Project and Texas Appleseed on debtors prison issues, a summary of reform legislation from the Texas Municipal Courts Education Center, and comments about Emily's interview from Edward Spillane, presiding judge over the College Station municipal courts. RELATED: Check out Grits' call for a "Jubilee" on criminal-justice debt, an analysis of opposition to this year's reform legislation, and an account of the dramatic reversal that allowed the bill to pass in the Texas House.


Friday, August 18, 2017

Do brain-science advancements, death-penalty debates point to need for third path on young adults and crime?

Our latest "Reasonably Suspicious" podcast segment, Death and Texas, has sparked a number of lively, behind-the-scenes discussions, so I thought I'd pull it out as a stand-alone and provide links to a number of related, relevant resources. The topic: A ruling out of Kentucky finding that execution of defendants who committed their crimes before they were 21 years old violates the Eighth Amendment to the US Constitution, building on the holding in Roper v. Simmons. A majority of cases so situated come from Texas in recent years. You can listen to the full (5 minute) discussion here.

For context, here's the ruling by the Kentucky judge under discussion and some relevant media coverage.

Among states, Connecticut is considering extending the juvenile justice system all the way to age 21 because of similar considerations about youthful brain development.

In the podcast, I mentioned my pal Vincent Schiraldi's work suggesting the need for an alternative justice system for young adults. Here's what to my knowledge is sort of his "big paper" on the topic with Bruce Western and Kendra Bradner. See also this paper presaging the reform suggestions in Connecticut.

For more background: Here's a survey from last year of 10 state and local initiatives on these themes. And here's a law review article discussing the ideas of "extended adolescence" raised by Schiraldi's work and others.

Find a transcript of this excerpt below the jump:

More on limiting debtors prisons practices

The Texas Municipal Courts Education Center has issued a summary of new debtors-prison reform legislation (HB 351/SB 1923) as well as guidance related to various laws governing expunction of juvenile records. Check them out here.

RELATED: In the latest Reasonably Suspicious podcast (beginning at the 12:08 mark), I interviewed the Texas Fair Defense Project's Emily Gerrick on what local judges can do beyond that new law to limit debtors-prison practices in Texas. I asked Edward Spillane, Presiding Judge of municipal courts in College Station, for his thoughts on her suggestions, and here's how he replied:
Emily made a number of excellent points. I'm excited that the new legislation will encourage a broader use of the waiver and community service processes judges have. I wish the surcharge program had gone away but now judges can end more easily the financial burdens defendants face from fines, fees and drivers license holds. I would include particularly Indigent defendants but also those defendants struggling with other hardships such as mental illness or a loss of a loved one, a family member who is sick or any other strain making it hard for defendants to carry out their sentence. The new legislation also mandates that courts are a safe haven for those under warrant and who come to court. That is a big step along with the various new procedures courts must perform before issuing failure to appear or capias pro fine warrants. Progress may seem slow but these legislative changes will make all our courts more just and fair places for citizens.
In a few days, I'll post the full interview with Ms. Gerrick, which was informative and educational on several levels.

Thursday, August 17, 2017

End-of-summer reading list additions

Grits saw several academic offerings recently to which I hope to return soon as I close out my summer reading, so let's record those links here; maybe others will be interested in them as well:
Let me know in the comments what you're reading on #cjreform topics.

Tuesday, August 15, 2017

Reasonably Suspicious: Bethke leaves TIDC, cap-and-trade to limit incarceration?, DNA-mixture SNAFUs, and more

Just Liberty's latest "Reasonably Suspicious" podcast for August features discussions of important issues and fresh ideas confronting Texas' criminal justice system. (This is the last episode in our summertime "soft launch" before promoting the show more widely beginning in September.) Listen to the podcast here, or read a transcript below the jump:

Topics covered include:
  • Jim Bethke leaving TX Indigent Defense Commission
  • "Cap and Trade" proposal to minimize incarceration
  • DPS crime lab fees on hold, but crisis lingers
  • DNA mixture evidence and Texas courts
  • What can judges do to minimize debtors prison practices?
  • Brain science and capital crimes by young adults
  • And more!

Sunday, August 06, 2017

Overtime for police court appearances a growing cost driver at Austin PD

Last month, a Grits post highlighted provisions in the Austin and Houston meet and confer contracts which gave police officers extra pay for time they spend testifying in court. In Houston, courts found this gave officers an incentive to make arrests on bogus DWI cases so they could make extra money - often quite a bit more than their base pay - in overtime for court appearances. And Austin's overtime pay for court appearances is even more generous.

Now, a budget response to questions by Austin Mayor Steve Adler about the drivers of overtime expenditures and police budget costs supplies light on the subject from a different angle. According to the city manager's response,

In 2016, overtime per sworn officer at APD was $11,647, up from $8,108 per officer in 2014.

Adler asked what was driving costs and overtime use at Austin PD. Looking beyond base officer pay, which in Austin steps up quickly with seniority to make them among the highest-paid officers in the state, the biggest over-time related item listed among the cost drivers was "Contract mandated Court overtime for police officers." That was the third largest item in an "other" category of cost drivers which included "Retirement" and "Health Insurance."

So, although we can't say from these data what proportion of overtime expenditures is due to court appearances (as opposed to callbacks or other, more mundane sources of overtime), overtime costs for court appearances have clearly mounted and now represent a significant sum.

White House backing for methadone in jails?

I don't understand the Trump Administration's position on the Drug War at all. Grits was under the impression that "beleaguered" Attorney General Jeff Sessions was ramping it back up, but then we see that the Administration apparently supports methadone treatment for addicts in county jails. From the New York Times:
maintenance treatments like methadone, if uninterrupted, are proven to reduce arrests and increase employment, and for many with addiction are the only thing that works. In July, a White House commission on opioid addiction called for increasing inmates’ access to addiction medication.
Somebody help me out here, I can't keep track any more: is that a liberal or a conservative position?

Grits also wanted to flag a medication being used on addicts in jails (or more often, as they are discharged), of which I hadn't previously heard:
A growing number of jails, especially in rural areas, have opted to treat inmates not while they are in jail, but on the way out, giving them a one-time shot of a newer medication, Vivitrol, as they are released. Vivitrol, which unlike methadone and Suboxone is not a narcotic and has no street value, blocks opioid receptors in the brain, making getting high nearly impossible. It is far more expensive, and far less proven, than methadone and Suboxone, but its manufacturer often gives it to jails free. Its effect lasts about a month.
The full Times story - "Opiod Users Are Filling Jails. Why Don't Jails Treat Them?" - is well worth a read. MORE: NPR covered Vivitrol this week as well, an alert reader informed me.

Saturday, August 05, 2017

Exploring (long-term) ups and (short-term) downs of police shootings in Texas

Last month's Reasonably Suspicious podcast from Just Liberty featured a new segment titled "Suspicious Mysteries" which focuses on questions to which there are no definitive answers. The topic this time: possible reasons why deaths in police custody in Texas doubled from 2005 to 2015, then steeply declined in 2016. A friend in another city asked if I could pull the 4-minute segment out as a stand-alone for use by advocates, so here you go:

For more:
And from Grits' contributing writers:
For more reform ideas, check out Campaign Zero.

Find a transcript of this segment below the jump.

Friday, August 04, 2017

Competing narratives, reentry, girl scouts, when prosecutors bully the defense bar, and other stories

Here are a few odds and ends  for readers' perusal while your correspondent is focused elsewhere:

Thursday, August 03, 2017

Unpunished police misconduct drives down crime reporting rates

In the past couple of years, we've heard a lot about the so-called "Ferguson effect," where cops supposedly react to public criticism by failing to do their jobs and intentionally allowing crime to flourish. Grits has expressed skepticism that that's really the attitude of the cop on the beat, but regardless, it's a common meme.

What's less commonly discussed is the reverse problem: when police misconduct goes unpunished, resulting in a loss of trust by the community and a failure to report crimes for fear of interaction with the cops. A Columbia Law Review article by Tracey Meares includes this summary of some recent research on exactly how that occurs:
In a recent study, Professors Matthew Desmond, David Kirk, and Andrew Papachristos present an example of how researchers can use such data. The researchers studied how police brutality against unarmed Black men affects cities and the Black community in particular by examining whether there was a change in the number of 911 calls in Milwaukee before and after a highly publicized incident of police violence against an unarmed Black man, Frank Jude. Jude was attacked by several White police officers in October 2004 after they accused him of stealing a police officer’s badge at a party. The officers stomped on his face with heavy boots and punctured his eardrums with pens. After the incident, Jude’s photo was shown in the newspaper demonstrating his extensive injuries. The results of the researchers’ analysis of 911 calls surrounding this incident are startling. After Jude’s beating was reported in the local press, Milwaukee residents—and especially residents of Milwaukee’s Black neighborhoods—were less likely to report crimes by calling 911. The magnitude of the crime-call decline in Milwaukee was large and long lasting. It persisted for over a year, “result[ing] in a loss of approximately 22,200 911 calls, a 17 percent reduction in citizen crime reporting, compared with the expected number of calls.” Moreover, the “missing” calls were primarily confined to the areas of Milwaukee in which mostly African Americans lived. After a year, the number of calls went up again.

Wednesday, August 02, 2017

Houston police shootings: 'Discriminatory,' but not 'Biased'?

Police shootings in Houston may not directly result from racial bias, according to academic analyses of data from Houston PD, but they do occur in a statistically discriminatory fashion. That's because officers' intent cannot be proven but the results are wildly disparate. This excerpt from a new academic article from Jeffrey Fagan and Daniel Richman described the two analyses and how they differ:
Research by Professor Roland Fryer examining police use of force in Houston, one of the nation’s largest cities, shows a nearly 50% greater incidence of use of force by police in encounters with Black or Latino persons but no disparity by race in shootings by police. Justin Feldman’s subsequent analyses of Professor Fryer’s Houston results showed that, in fact, Blacks were nearly five times more likely to be shot relative to Whites and Latinos were nearly twice as likely to be shot relative to Whites. Professor Fryer searched for evidence of racial bias in police shootings in Houston, using statistical models to identify intentional bias. He found none. Feldman’s analyses of the same data examined statistical discrimination — or disparate treatment of Black and Latino suspects by police in their use of force — and showed large racial disparities. Overall, the evidence of racially disparate police enforcement across cities reinforces longstanding beliefs among Black citizens about disparate treatment at the hands of the police and helps spread a narrative of an uneven burden that Black citizens bear in police–citizen encounters.
The authors explain the two studies' different conclusions by pointing out that they were analyzing two different things - "statistical discrimination" vs. "racial bias" - offering this explanation in a footnote: "Statistical discrimination reflects differences in the rates of an event by race, after controlling for race-specific and plausible nonrace factors that might explain such differences. Racial bias looks for evidence of intent to discriminate, independent of evidence of racial disparities."

If the outcome is that discriminatory ("Blacks were nearly five times more likely to be shot relative to Whites"), it's hard to know whether the public should be comforted by the concurrent finding that the discriminatory outcomes weren't generated by "bias." In essence, Prof. Fryer was positing HPD officers' good intentions, while Prof. Feldman lamented that they were the type with which the road to Hell is paved.

Tuesday, August 01, 2017

Conviction Integrity Units a Texas innovation gone national

Without a doubt, creation of the nation's first Conviction Integrity Unit (CIU) at a District Attorney's office was the most important legacy of former Dallas DA Craig Watkins' brief but eventful career as a Texas prosecutor. Check out a feature in The Atlantic praising the CIU in Philadelphia. This was a Texas innovation which has been mimicked far beyond our borders:
Today there are about 30 units, largely clustered in the Northeast, California, and Texas, according to Hollway. Roughly half were created after 2013, and their track records vary: Since the Philadelphia unit was created in 2014, Thomas’s case is the first and only one it’s thrown out. By contrast some of the most robust—such as those in Dallas, Houston, and Brooklyn—have thrown out dozens.
Conviction Integrity Units in Texas have mostly usurped the old model of innocence clinics at law schools, which are these days responsible for a tiny fraction of the total discovered innocence cases compared to what comes out of the CIUs.

1,200+ back petition to limit DPS Class C arrests, and other stories

Here are a few odds and ends that caught Grits' eye while I'm focused elsewhere: