Monday, January 22, 2018

Magistrates admit Harris judges pressured them to require money bail

Three Harris County magistrate judges were sanctioned by the State Commission on Judicial Conduct for failing to grant personal bonds to low-risk defendants who deserve them, reported the Houston Chronicle, and their reaction seems, to this writer, tantamount to an admission of the allegations in the federal litigation pending at the 5th Circuit.
The rebuke by the Texas Commission on Judicial Standards cites hearing officers Joseph Licata III, Jill Wallace and Eric Hagstatte with a public admonition and ordered them to take additional educational instruction. 
The order from commission chair, Justice Douglas S. Lang, said the board took into consideration that the hearing officers testified on Dec. 7 in Austin that they had been told by Harris County criminal court judges they should not grant cash-free bonds or more affordable bond rates. They said they feared they would be fired if they didn't comply. (emphasis added)
So the magistrates' defense was that elected judges ordered them not to grant cash-free bonds! Too bad that admission wasn't part of the evidence in the case that went to the 5th Circuit, but there's a hearing tomorrow to decide whether these admissions amount to evidence the judges withheld in the civil case. Regardless, there's plenty of other evidence being considered that shows the same thing.

Kudos to state Sen. John Whitmire for filing the complaint, it got the magistrates to cop to some pretty important admissions.

RELATED: In Dallas, the Texas Fair Defense Project and the ACLU of Texas just filed new litigation similar to the bail suit in Harris County, in which TFDP is also participating. A press release came via email just minutes after Grits hit "publish" on this blog post.

Thursday, January 18, 2018

Snippets of opposition to Austin's police-union contract

A local Austin activist posted on YouTube some of the testimony from December at the Austin City Council against the police-union contract. (See Grits' writeup after the event.) Your correspondent was one of the speakers in opposition, and I post my testimony here mainly to show off Grits' favorite shirt:

Since Grits had earlier interviewed Campaign Zero's Sam Sinyangwe and highlighted his research on Austin police contract, let's also post his testimony from the same hearing.

And here's Chris Harris, a super-bright, young activist from Grassroots Leadership, who like many others that night did a great job, but who in particular made some excellent, data-based points that the local media have avoided over the many months this contract was being debated:

Go here to watch more testimony from the hearing.

Two Big-D capital-murder cases overturned for prosecutor misconduct

Stanley Mozee and Dennis Allen, two Dallas men convicted of capital murder and sentenced to life prison for a 1999 robbery, have finally been cleared of capital-murder charges after the Texas Court of Criminal Appeals approved habeas relief last week.  Their cases were championed by the national Innocence Project and my former employers at IPOT. The CCA set aside their convictions without confirming their innocence. (In cases lacking exonerating DNA or other forensic evidence, that's typically been the best the CCA has been willing to do.) There will be no new trial, however. The Dallas DA's office already agreed to their release in 2014 pending this decision, and has agreed the cases should be set aside.

Instead of straight-up innocence claims, the convictions were overturned based on withheld exculpatory evidence, the failure of prosecutors to disclose incentives for snitch testimony, and prosecutor Rick Jackson allegedly soliciting testimony he knew was false then failing to correct it. See good writeups from the national Innocence Project and from The Open File. Here's the order from the trial judge the CCA affirmed, and 2016 coverage of the case from the Dallas News.

RELATED: This seems like a good opportunity to link to attorney Jessica Brand's recent explainer article, "The Epidemic of Brady Violations Explained." The Michael Morton Act resolved some, but not all, of the discovery problems in Texas, it should be said. The disclosure requirements on Texas prosecutors today significantly exceed those under Brady, which exclusively governed criminal discovery at the time Mozee and Allen were tried.

CORRECTION: The date of the robbery and conviction were misstated in the original post and have been corrected.

Sunday, January 14, 2018

Texas should replicate OK approach on drug felonies

Your correspondent has maintained for years that, after Jim Thorpe left, the best thing ever to come out of Oklahoma was I-35. Grits has long been a staunch advocate for a border wall, but would prefer it built along the Red River instead of the Rio Grande. However, after Okie voters approved adjustments to the criminal code to reduce sentences for user-level drug possession to a misdemeanor, perhaps it's time to cast off such dated views.

Prosecutors in Oklahoma County, reported The Oklahoman, filed 24% fewer felony cases in 2017 compared to 2016, declining from 10,043 filed in 2016 to 7,628 in 2017, or a 24% drop. The increase would be even bigger but the new drug laws didn't take effect until July. Estimated the local public defender, "Probably at least two-thirds of the decrease was the decision of the voters to pass the criminal justice reform measure on lowering felonies to misdemeanors for low-level theft crimes and for drug possession charges." Which means that not only did the new law successfully reduce prison admissions by diverting low-level drug cases, other felony crimes appear to have declined at the same time. (N.b.: Drug manufacturing and distribution remain felonies.)

Texas has passed numerous justice reform measures in recent years, but our Legislature has balked at the drug policy change Okie voters made. Now that the approach has been proven to work, Texas should follow their lead.

Saturday, January 13, 2018

'Agree with me or I will kill you': On plea bargaining, the death penalty, and life without parole

Me, Harris County DA Kim Ogg, and Shannon Edmonds from the Texas District and County Attorneys Association commented in a Houston Chronicle story this week on the role of life-without-parole sentences in plea bargaining in capital cases. I'd suggested:
"There has always been speculation about whether that has encouraged prosecutors to file capital cases more than they otherwise would because what better leverage do you have in a plea bargaining situation than, 'Agree with me or I will kill you,'" said Scott Henson policy director with the non-profit Just Liberty, which advocates for reducing incarceration. "The government will literally kill you if you don't go for life without parole and there is no stronger bargaining chip than that."
District Attorney Kim Ogg, whose office has overseen less than 25 life without parole sentences since she took the reins last year, pushed back against that suggestion. 
"We don't use the death penalty as a plea bargaining tool," she said.
Hmmmm ... What is plea bargaining, Grits wonders, if not a negotiation over sentences? More lenient sentences are offered as an incentive for the defendant to admit guilt and avoid a trial. Since the only two sentences available for capital crimes in Texas are death and LWOP, one wonders what else there is to bargain over if the death penalty isn't used "as a plea bargaining tool"?

Taking the claim on its face, perhaps this might explain the large number of cases charged as capital which don't result in capital sentences: when prosecutors take death off the table in a capital case, LWOP becomes the top sentence in a plea negotiation. So offering non-capital murder or some other charge with the possibility of parole would become the only negotiating chip to incentivize plea deals. Sufficient, county-level charging data doesn't exist, to my knowledge, to confirm that hypothesis, but I'm not sure why anyone would plea bargain to LWOP if the death penalty weren't being threatened.

If the Harris DA under Kim Ogg doesn't use the death penalty to get LWOP plea bargains, I'm glad to hear it. Shannon Edmonds from TDCAA, however, considered it par for the course "that prosecutors used the death penalty to get a guilty plea."
Shannon Edmonds, staff attorney and director of governmental relations for the Texas District and County Attorneys Association, said his group doesn't have an official position on the matter. 
"It kind of tickles me that defense lawyers are upset that prosecutors aren't trying to kill their clients," he said. "Even if the punishment was a minimum of 40 years on a capital life sentence, they still complained that prosecutors used the death penalty to get a guilty plea. That's not anything unique to life without parole."
So, there's that.

Finally, Houston attorney Pat McCann raised an issue that's been discussed recently on this blog and on the podcast - non-capital cases don't receive legal representation at the habeas-corpus stage, nor automatic review by the Texas Court of Criminal Appeals or the federal courts:
Unlike with death-sentenced cases, there's no automatic appointment of post-conviction appellate counsel and no punishment phase of the trial, which makes the whole process quicker and cheaper. 
"Life without parole was an unintentional gift to major urban prosecutors' offices," McCann said. "It makes it very easy to dispose of a large number of violent and often youthful offenders without any more thought than one would need to toss away a piece garbage."
Much has been written about the financial costs of the death penalty, but McCann's observation raises another important and less-often-discussed point: The reason the death penalty tends to drive criminal-justice debates isn't just the symbolic importance of imposing the maximum punishment. It's that defendants sentenced to the death penalty have attorneys representing them throughout the process, and so weak or unconstitutional prosecutions are more likely to be exposed.

Flawed forensics, for example, may be challenged at the habeas stage under Texas' junk science writ. But only capital defendants are guaranteed an attorney at that stage. Same goes for ineffective assistance, prosecutor misconduct, and other common habeas claims.

Death cases these days are more thoroughly vetted by appellate courts, at least at the federal level. (State-level representation in Texas capital cases too often remains shoddy.) But for the LWOP prisoners, McCann's "piece of garbage" comment isn't far off. Court of Criminal Appeals Judge Elsa Alcala has suggested extending the right to counsel in habeas proceedings to non-capital cases in order to pursue ineffective assistance claims. There's a strong argument to be made that LWOP sentences deserve the same level of automatic, post-conviction vetting.

Thursday, January 11, 2018

More than 1% of all Texas men in prison

How does Texas' incarceration rate stack up to other states? Still on the high side, according to the new Bureau of Justice Statistics report, "Prisoners in 2016."
At year-end 2016, 12 states had imprisonment rates that were greater than the national rate of 450 per 100,000 U.S. residents of all ages: Louisiana (760 per 100,000 state residents), Oklahoma (673 per 100,000), Mississippi (624 per 100,000), Arizona (585 per 100,000), Arkansas (583 per 100,000), Alabama (571 per 100,000), Texas (563 per 100,000), Missouri (532 per 100,000), Kentucky (518 per 100,000), Georgia (512 per 100,000), Florida (481 per 100,000), and Nevada (460 per 100,000) (table 7). ...
More than 1% of all males in seven states were in prison on December 31, 2016: Louisiana (1,469 per 100,000 male state residents), Oklahoma (1,207 per 100,000), Mississippi (1,200 per 100,000), Arkansas (1,095 per 100,000), Alabama (1,085 per 100,000), Arizona (1,071 per 100,000), and Texas (1,040 per 100,000).
So Texas is one of only seven states that incarcerates more than one percent of men. That's an unfortunate club in which to claim membership.

The report also noted a red flag for Texas: Admissions in Texas rose by 2,500 from 2015 to 2016 - one of only three states to see such an increase.

These sorts of data are why Grits sometimes tires of crowing about Texas' 2007 community corrections reforms credited with leveling off prison population growth, which had seen a steep upward trend before then. Even so, Texas remains vastly over-incarcerated. And 2007 was now more than a decade ago. It's nigh past time in 2019 for the Lege to take additional steps.

RELATED: From the Houston Chronicle, "Texas female prison population rises as male population decreases."

Wednesday, January 10, 2018

Twin Peaks defendants offered misdemeanor probation, negligent murder, and other stories

Let's clear some browser tabs with a roundup post. Here are several items of which Grits readers should be aware, even if I haven't had time to write about them:

Twin Peaks defendants headed to trial
The McLennan DA offered one of the 150+ defendants in the Twin Peaks biker massacre a plea deal of a deferred misdemeanor probation instead of the first-degree felony he was charged with, and the defendant said no, we're going to trial. Grits had earlier placed the over-under regarding how many of the original 177 people arrested would be convicted of anything at 1.5. That still sounds about right, though at the moment, if Grits were a betting man, I'd place my wager on "under." I couldn't begin to estimate the over-under regarding how much this fiasco may eventually cost McLennan County in civil suits for constitutional rights violations, but it'd be a good bet it'll be a non-trivial number.

Firing director not a cure-all for Dallas juvie detention woes
In Dallas, the juvenile probation director may or may not have been run out of her job but is definitely on the hot seat for allegations that youth under her care at a treatment center weren't allowed time for outdoor exercise. The same facility last year witnessed allegations  that five boys aged 13 to 17 engaged in sex acts with one another while sleeping on the floor of the cafeteria due to understaffing. I don't dispute that the chief needs to go, but this is not an NFL team. Firing the coach doesn't change much about a government bureaucracy, which is more effectively influenced through the passage of laws, policies, and budgets. At the end of the day, real solutions will likely involve ponying up more money for staff and services to solve the problem, not just firing the bureaucrat in charge.

All about the money
It took a guest columnist instead of working reporters to get to the heart of the debate over Austin's newly rejected police contract. Read Lauren Ross' article, it's the first time in the local press that the economic critiques of contract critics have been presented to MSM consumers in full form.

Six year old died in awful shooting by Bexar deputies
A six year old was killed by a stray bullet last month after four Bexar County Sheriff's deputies, including one with a rifle, opened fire at an unarmed suspect, who also died (law enforcement insists she earlier had a gun but now cannot find it). As a result, the Sheriff is reviewing use of force policies. This one is a mess. The officers appear to have fired based on assumptions they brought with them to the scene, not what they saw in front of them. And clearly they didn't take into account that she was standing in front of an occupied mobile home when they opened fire. Bodycam footage would help here. A GoFundMe page was created on behalf of the family to cover funeral expenses.

Some TDCJ units ill-equipped for cold weather
The Texas Department of Criminal Justice faces allegations that inmates at up to 30 units slept in un- or under-heated cells during the recent cold snap. TDCJ denies the problem, but the Texas Inmate Family Association identified a couple of dozen underheated units, notably including the Allred Unit near Wichita Falls. Editorialized the Fort Worth Star-Telegram, "An ongoing lawsuit is demanding the state improve summer conditions. While they’re at it they should fix the heating for winter."

Negligent murder?
In Waco, a murder conviction was overturned because the jury was instructed to convict a defendant of murder based on "reckless" and "negligent" rather than "intentional" behavior. (A day care owner had given children in her care Benadryl and one of them died.) Prosecutors have appealed the case to the Texas Court of Criminal Appeals, where three votes to uphold the conviction are virtually guaranteed.

Clemency beneficiary reoffends
When Barack Obama issued sentence commutations to hundreds of drug offenders, it was inevitable that some of them would eventually reoffend. That has finally happened in San Antonio. The Express-News had the coverage. While some may use this to criticize the commutations, to me it's remarkable it's taken so long for somebody to screw up, and more remarkable still that the overwhelming majority of those with commuted sentences have not gotten into trouble again.

3 policies that punish the poor
Rudy Apodaca, the former chief judge of the New Mexico Court of Appeals, now living in Austin, had a column in the Express News linking three punishing policies for the poor: Overreliance on property taxes, money bail for criminal defendants, and the Driver Responsibility surcharge. He concluded, "Without change, the rich will continue to get richer and the poor poorer, the gap between them growing further apart. And caught in between, the middle class will keep struggling."

(Literally) sick of prison food
The Atlantic has the story of prison food literally making inmates sick. Prison inmates are six times as likely to contract a food-borne illness compared to the rest of the population, a recent study found.

With less crime, do we need fewer cops?
The Washington Post pointed out that, despite crime plummeting in the last three decades, the number of police has not declined. "In 2016, there were slightly more officers per capita than in 1991, when violent crime peaked, according to data collected by the F.B.I. Now, officers deal with half the crimes per capita that they did then." Grits could make an even stronger case that we have too many prosecutors.

Friday, January 05, 2018

Austin press coverage of police contract still sucks, and other stories

Here are a few odds and ends that deserve readers' attention even if I haven't had time to turn them into full, independent blog posts:

Austin press coverage of police contract still sucks
The Austin press continues its one-sided coverage of the City Council's rejection of the police-union contract, larding their articles with quotes from contract supporters and minimizing the views of critics without fully explaining them. In an Austin Chronicle story published yesterday, for example, contract supporters were given a platform for predicting doom while contract critics were dismissed as know-nothings (e.g., my wife was dubbed a "gadfly"). According to reporter Nina Hernandez, council members who voted against the contract (all of them) "hadn't exactly considered the consequences of their decision," though there's no sourcing, much less factual basis offered for that opinion. Later, appearing to contradict herself, she complained that the council was "suffering information overload," which hardly jibes with her earlier calumny that they hadn't sufficiently studied the topic.

The truth is, MSM reporters in Austin appear as a class to have misunderstood and misreported this entire debate from the get go. Ms. Hernandez now says she recognizes that, as one council member instructed her, "the Council's vote was more about the money" than the oversight piece (which means the press were the only ones in the room that night who didn't understand what they were watching). But no one in the local media is yet reporting on the most important implications of the scuttled contract: Freeing up around $10 million that the city council can spend in the current fiscal year over and above their current budget. How and when to spend that money is where the actual debate has moved at city hall, as well as among the activist players involved. But the press continues to flail, having missed the story and spun false narratives for so long that they don't now know how to begin to catch up. It's as though there's an almost willful decision by the local Austin press corps not to publicly report on what these debates are actually about.

Texas law mandates bad bodycam policies
Note to reporters who want to localize a story about police bodycams based on the Leadership Conference/Upturn recommendations, like this recent SA Express News story: Texas' law is the source of the most important bad practices, like letting officers accused of misconduct review video before they're questioned, or erecting barriers to accessing video under open records. Increasingly more departments, most recently Arlington and Plano, are purchasing body cameras for their officers. MORE: Here's a new academic piece on body cameras from Seth Stoughton for the to-read pile.

Private prison company gets rep on Windham task force
One of the governor's new appointees to Texas' task force on "Academic Credit and Industry Recognition" at the Windham School District (which operates educational programming at the Texas Department of Criminal Justice) works for a private prison company, reported the Longview News Journal.

Maybe time to tone down the 'war on cops' meme
The number of police officers killed in the line of duty in 2017 was the second lowest total in 50 years. While every death of an officer is a tragedy, this low total doesn't comport with the "war on cops" meme that's been prevalent for the last couple of years. Suicides and traffic deaths remain the more significant killers of sworn police officers.

Analyzing 2017 shootings by police
The new report from Mapping Police Violence is a must-read. By their count, 1,129 people were killed by police in America in 2017. MPV researchers "were able to identify officers in 534 cases. At least 43 had shot or killed someone before. 12 had multiple prior shootings." Also, "Most killings began with police responding to suspected non-violent offenses or cases where no crime was reported. 87 people were killed after police stopped them for a traffic violation." The number of those killed who were unarmed was 147. Notably, "Police recruits spend 7x as many hours training to shoot than they do training to de-escalate situations." FWIW, the Washington Post came up with a slightly lower number for Americans killed by police; Grits doesn't yet understand why the difference. It's remarkable that the number of people shot and killed by the government isn't tracked more closely than this in an official capacity. This should be a number we know.

Why long sentences matter
Too much of 2016 and 2017 was spent debating Prof. John Pfaff's position that long sentences weren't a significant driver of mass incarceration. He was wrong. This 17-minute podcast from the Urban Institute lays out the problem of too-long sentences and shows why reducing them is key to ending mass incarceration.

Healthcare spending reduces crime, violence
In the big picture, the observation from the Brookings Institute that health care spending prevents crime makes loads of sense. That's particularly true where health and crime specifically intersect - like drug abuse and mental illness, where treatment and related social-service supports can prevent crime both directly and indirectly. One study they cited "found that an increase in the number of treatment facilities causes a reduction in both violent and financially-motivated crime. This is likely due to a combination of forces: reducing drug abuse can reduce violent behavior that is caused by particular drugs, as well as property crimes like theft committed to fund an addiction. Reducing demand for illegal drugs might also reduce violence associated with the illegal drug trade."

Trump DOJ rescinds anti-debtors prison guidelines
The decision by the Trump DOJ to rescind guidance on minimizing debtors-prison practices was ill-conceived and a disappointment. But it was only ever guidance, and rescinding it in and of itself changes nothing. What has always mattered more is what state and particularly local actors choose to do on the ground, and that remains an open question. Texas legislators in 2017 took long-awaited first steps toward confronting the problem of arresting poor people over fines, but there's much more to be done. It remains to be seen whether - much like the push to reform asset forfeiture laws - movement conservatives continue to push for reform in spite of the Trump Administration staking out a more regressive agenda.

Monday, January 01, 2018

Texas getting better at identifying problems at juvie facilities, but not fixing them

In reaction to revelations of dysfunctional youth prisons, advocates including your correspondent have been calling to dismantle them and shift to smaller facilities located closer to the urban areas from which most of the youth first came. (Check out Grits' interview with former Dallas News reporter Brandi Grissom on the topic.) I still think that's a good idea.

But we must then pay closer attention to how locals are treating juvenile offenders under their care. For example, inmates at one secure youth-treatment center in Dallas may go months without being allowed to exercise outside. Here's the lede to the Dallas News article breaking the story:

Unused basketball courts at the Lyle B. Medlock
Youth Treatment Center in South Dallas
Death row inmates in Texas are given at least an hour a week outdoors. Hardened criminals inside California's famous San Quentin prison get 10 hours.

Yet kids at a Dallas County correctional center for boys went months, sometimes more than a year, without going outdoors more than a few times.

For years, the boys at the Lyle B. Medlock Youth Treatment Center in southern Dallas County were rarely allowed outdoors, according to former guards, probation officers and families of incarcerated teens.

One boy said he was locked up for nearly 10 months and wasn't let outside for exercise once.
That we even know about this is a testament to the creation of the Independent Ombudsman at TJJD as part of the 2007 reforms, and the expansion of their authority to include local facilities. They began inspecting local juvenile detention facilities in 2015 and immediately identified the issue, reported the DMN. By May 2016, "During a third ombudsman visit, in May 2016, the inspector again noted the lack of outdoor time and submitted a 'Request for Plan of Action' to Dallas County juvenile officials: 'What plan can be developed and implemented at Medlock that would ensure youth have access to outdoor recreational areas?'"

So the mechanism to identify the problem worked, but the Ombudsman was not empowered to enforce her request to create an action plan for changing a bad policy. That didn't happen until the County Judge saw the Morning News article and sent the juvenile probation director a Nastygram, after which the policy was immediately changed.

Ideally, you want government structures that identify problems in order to fix them, not to allow them to linger until some reporter catches on and embarrasses the government into changing bad policies. This reminds me of Austin's police monitor, which at its best made important recommendations for reform but had no authority to fix the problems they'd identified.

At a minimum, when the Independent Ombudsman recommends this sort of policy change, local officials should be required to either implement the recommendation or formally reply to explain why they won't.

The TJJD Ombudsman had similarly identified most of the problems the Dallas Morning News reported on as Brandi Grissom was on her way out the door (check out Grits' interview with her; this was Brandi's final story as Austin bureau chief). So they're giving government officials an opportunity to rectify problems long before they become front-page news, but it's just not happening.

Which leads Grits to this conclusion: Legislators were successful in 2007 at creating a mechanism to identify problems at state and local facilities. But waiting until already-identified problems mushroom into front-page scandals and crises makes little sense. Someone must be empowered to fix identified problems, and to force local actors to adjust bad practices when they persist in the face of Ombudsman recommendations.