Saturday, January 19, 2019

Bail litigation updates across Texas, and other stories

A bit of personal news: After Just Liberty's Executive Director, Shakira Pumphrey, left to join the new Texas House Speaker's staff to work on criminal-justice policy, your correspondent was elevated to her old post on an interim basis. Many thanks to Shakira for all her hard work for Just Liberty over the last two years, and good luck at the new gig! Meanwhile, as Grits struggles to fulfill his new admin duties, here are a few odds and ends that merit readers' attention.

New Harris judges propose bail-reform framework
Just-elected judges in Harris County proposed a new bail framework that will become the basis for a settlement offer in the county's ongoing bail litigation. Reported the Houston Chronicle:
Under the new administrative rule, 85 percent of people arrested on misdemeanors automatically qualify for release on no-cash bonds, according to the county’s pretrial services division. People arrested for bond violations, repeat drunken driving and family violence are the only exceptions. These defendants must appear before a magistrate or judge within 48 hours, at which time they may also qualify for personal recognizance bonds.
DA may be liable in Galveston bail litigation
Federal bail litigation in Galveston survived a motion for summary judgement and may now go forward, a District Judge George Hanks, Jr. ruled this week. Hanks said defendants must be provided counsel at their bail hearing, a provision which tracks rulings in Houston and Dallas. (Most Texas counties do not provide attorneys at the bail-hearing stage, so this litigation result could be replicated nearly everywhere in the state.) Interestingly, Hanks also found that Galveston District Attorney Jack Roady, "who controls the county's bail schedule, was liable for his role in perpetuating a wealth-based detention system. Magistrate Edison had ruled that magistrate judges 'always strictly adhere' to the bail amounts recommended by Roady."

Chaos surrounds Dallas County bail-reform proposal
Despite having months to put together a proposal, in federal court this week, Dallas County officials appeared confused and unprepared, reported the Dallas Morning News. County officials wanted to put lawyers from the Public Defender Office at bail hearings, but judges appoint attorneys and some have told the county, "We're not going to participate," the paper reported. That's foolish. Providing defendants counsel at bail hearings is the one, crystal clear requirement that we can already tell will apply to all Texas counties based on bail litigation thus far (including the 5th Circuit's reaction to the Harris Co. bail suit). The Legislature should simply require it in a statute, or else federal courts will require it one county/lawsuit at a time.

Tea-leaf reading on execution-stay vote
The Court of Criminal Appeals stayed an execution in a case involving bite-mark evidence and Texas evolving, SCOTUS-dictated developmental-disability standard in death cases. On Twitter, your correspondent engaged in some tea-leaf reading over the vote count. I'm worried the Government Always Wins faction may have gained a new member. In other, related, news, I already miss Judge Elsa Alcala's voice on the court.

'Dead Suspect Loophole' in Public Information Act decried
In Austin, several recent cases have brought to light what local media are calling the "Dead Suspect Loophole" in the Texas Public Information Act. The Legislature changed the law in 1997 to say only information about cases that result in a conviction must be made public, and when a suspect dies (say, because they're shot by a cop or die mysteriously in jail), they're never prosecuted. The problems with the law-enforcement exception to Texas Public Information Act go much deeper than that, and the Legislature should address them, but I'm glad this aspect is being highlighted. That said, the loophole is discretionary. Local officials don't have to use it. This is a transparency issue that should be re-raised when the various pols' primaries roll around.

Which crappy, failing bureaucracy should run the Harris County Jail?
Sen. John Whitmire suggested the state should take over the Harris County Jail after its fifth suicide in recent years. If the Texas Department of Criminal Justice did a better job, Grits might agree. Suicide attempts at TDCJ are quite high. Weird that the Governor wants the state to take over Houston ISD, now Whitmire wants the state to take over the jail ... there's a theme being developed around the capitol that local officials' autonomy in Harris County should be restricted. The recent blue-wave election there could exacerbate that dynamic in the still-red-as-roses Texas Lege.

Convict leasing history, victims unearthed
The Houston Chronicle has been providing good coverage of the discovery of dozens of black prisoners bodies buried in unmarked graves near Sugar Land. They were inmates leased to the Imperial Sugar Company, for which the town is named. For more on Imperial Sugar and the convict leasing system, check out Texas Tough by Robert Perkinson.

Rangers pulled off LaSalle Corrections investigations for alleged conflict of interest
The Sandra Bland Act required counties to have a separate agency investigate all deaths in county jails, and may have used the Texas Rangers, including at 7 jails run by LaSalle Corrections, a private prison contractor with a problematic history. The Dallas News reported alleged conflicts of interest, with the company hiring a former Ranger who's son presently oversees the Rangers at DPS. While not alleging misconduct, the Commission on Jail Standards has decided to pick a different agency to investigate LaSalle-run facilities.

Friday, January 18, 2019

#txlege budget writers in denial on prisoner health care

In its Legislative Appropriations Request, the Texas Department of Criminal Justice said it needs an additional $247 million in order to continue delivering inmate healthcare at current levels, and ideally would like tens of millions more to make salaries more competitive. In response, the initial Texas House budget authorized an additional $160 million, and the Senate budget cut medical care by $1.3 million, reported the Texas Tribune.

The House clearly came up with the $160 million number because that's the amount they're having to pay in TDCJ's "supplemental" budget, meaning the amount the Lege under-funded services during the last biennium. But that ignores to the extent to which under-funding led to denied services, and it also doesn't account for medical inflation. Bottom line: The Senate number is pure fantasy, and even the House budget under-funds medical services for prisoners, ensuring the Lege will face another large supplemental appropriations request in 2021 if they don't increase the appropriation before May.

This has been going on for so long, budget writers have run out of options. Every biennium, they must start by writing a nine-figure check to cover un-funded costs in TDCJ's healthcare budget. A few years ago, the Legislature tried to make prisoners' families pay for inmate healthcare, extracting money from their commissary accounts. But the fees didn't raise as much as projected, while prisoners deferring doctor visits for financial reasons led to higher overall costs because of a lack of preventive care. So we've been there, done that, got the t-shirt.

At this point, Texas prisons already operate on a bare-bones budget. It's a non-controversial fact of life that healthcare costs will continue to rise by nine-figure amounts every biennium without significant policy changes to reduce incarceration.

Whether or not legislative budget writers want to acknowledge it, the only reliable way to lower the medical-services line item at TDCJ beyond current, rock-bottom levels is to reduce the number of prisoners for whom the state must provide health care. If Texas wants to lock up more people than any other state in the union, state government must pay for medical care while those folks are incarcerated.

Monday, January 14, 2019

Beto bitter over El Paso police-union fight: Here's why that's okay

Grits must admit, I thought a bit more highly of Beto O'Rourke after reading this feature from The Intercept detailing his fraught relationship with the police union in El Paso when he was on the City Council.
Police unions have increasingly found themselves in conflict with progressive Democrats in cities across the country, and are notorious for defending even the worst officers on the force against charges of assault or murder. Chris Evans, O’Rourke’s spokesperson, said that when he relayed The Intercept’s inquiry to O’Rourke, O’Rourke’s first memory of the fight was that police were demanding a provision that would give officers a 48-hour window after a police shooting before they would have to answer an investigator’s questions. That provision is indeed in the contract; O’Rourke’s remarks at the time, however, were focused on officer compensation and El Paso’s strapped budget.
I'm glad O'Rourke is aware of the 48-hour-interview issue. But it sounds like he wants to divert attention from his earlier focus on opposing police-wage hikes, perhaps because the theme might resonate negatively with the broader union movement. That's understandable.

Given that O'Rourke was on the city council at the time, however, it was his job to worry about budgets at the height of the Great Recession, which is when this debate took place in 2010. And for many reasons, both having to do with competing ideologies of the moment and century-old union history, picking a fight with police unions isn't the same as picking one with the broader union movement.

The politics of justice advocacy and police unions are fraught, as the Intercept article does a good job of conveying. It's a longstanding tension, which extends not just toward progressives but the broader labor movement.

As Ron DeLord, founder of the Combined Law Enforcement Associations of Texas, recounted in an interview with Grits last year, police unions split from what was then the American Federation of Labor (the CIO didn't exist yet) after the AFL refused to back the Boston police union when they struck in 1919. The cops' history as indifferent strikebreakers earned their entreaties a lukewarm if not hostile reception, and police unions have existed outside the mainstream union movement ever since.

To this day, there's little solidarity between police and the traditional labor movement. When Wisconsin Governor Scott Walker decided to bust public-employee unions, for example, police and fire were exempted. Same here in Texas.

Beto's campaign might have pointed out that, in Austin, progressive activists recently engaged in a bitter, year-and-a-half fight over the capital city's police contract, and the terms of debate were as much about economics as social justice debates. Indeed, according to movement leaders, focusing on limiting officer wage growth earned advocates a seat at tables to which they otherwise wouldn't have been invited. The final contract that replaced one voted down by Council freed up about $10 million per year for the city to spend on other stuff.

In the December episode of Just Liberty's Reasonably Suspicious podcast, I sat down with the two lead union negotiators for Austin's police contract, Ron DeLord and Chris Perkins, and Chas Moore, the leader of the Austin Justice Coalition, who led the reform campaign. Here's the audio from our full conversation.

Campaign Zero co-founder Sam Sinyangwe with
Austin Justice Coalition co-founder Chas Moore
Moore, who is one of a new crop of impressive, young Texas civil-rights leaders, was quite open about how AJC used the economic issues that concerned O'Rourke as a city council member to garner support for justice reforms about which city officials wouldn't otherwise have cared. He told me:
I don't think a lot of activists or organizers would like this, but I think ... So what we wanted to do was win, right? We didn't care if you cared about our issue or our cause, we wanted to win. And we knew in order to win, the best way was to talk about money. Right? I agree 110 percent with Ron on that. All but ... one, maybe two council members cared about the transparency and accountability. But for the most part, out of that 11-0, vote, most of those people probably cared about money. 
Instead of talking about, "stop killing unarmed black people and stop mistreating people," we just had to talk about the money, and that's how we get the strange bed fellows of Sierra Club and Save Our Springs and ... All these things that really didn't make sense when you talk about it. 
We had the Parks people come out and talk about, "don't pay the cops." ... For us, it was like "what's the road to win," right? That was a huge part of it. Something we agree with. But that's not the most important thing for, at least my organization. We do care more about the transparency and accountability.

The money factor, which is equally important, was the most important to the people that ultimately made that decision.
Police unions and Movement for Black Lives activists like Moore are natural enemies, even if in Austin they were able to communicate well enough to negotiate, and even sit in Grits dining room for a post-mortem after the fight is over.

Similarly, the police union playbook for how to react when wage demands are refused or their members engage in misconduct can make them natural enemies of city councils as well. Their approach is to wrap themselves in the flag, find someone to blame, then aggressively attack, all the time. It usually works. But it's not a make-friends-and-influence-people kind of approach. It's a power-concedes-nothing-without-a-demand approach, as DeLord remarked, quoting Frederick Douglass.

DeLord's not joking when he quotes Douglass. He was a rabble-rousing police-union innovator in his youth, adopting confrontation tactics first developed to empower the poorest of the poor, but using them on behalf of the armed agents of the state. Today, his books are treated as textbooks among the English-speaking police-union movement globally, exporting those approaches to great effect.

O'Rourke appears to have received the full-blown, Saul-Alinsky-inspired police-union bullying experience, and it left him questioning how much value exists in having cops as the only strong labor interest among public employees in a right-to-work-for-less state like Texas. I don't blame him for that. Spend much time on these issues on any side but theirs, and those questions naturally present themselves.

Grits doesn't begrudge police-union leaders trying to get the most for their members. But as evidenced by the lingering bitterness of a potential Presidential contender at the uber-hostile, Alinskyite tactics he was subjected to, their approach can make enemies. That can come back to haunt you. When you're a bully, payback's a bee-yach.

Finally, fwiw, Grits considers Beto O'Rourke a more attractive U.S. Senate candidate in 2020 than a presidential contender. That's in part because I've wondered about his ability to manage complex institutions of government, and in part because, as a senate candidate, I think he'd help make the whole Democratic ticket competitive in Texas. (Our Texas pols seem to behave more responsibly when they're worried about general elections instead of primaries.)

On the first part - managing institutions - though only a small glimpse at his record, this episode reported by The Intercept does give me some small confidence that he would embrace his responsibilities as a manager of government, separate and apart from political and ideological positions, and fight for the public interest zealously, even when it's hard. That's what those city-council-police-union fights are about.

Friday, January 11, 2019

Fixing longstanding criminal-justice problems in a black-ink budget year

Comptroller Glenn Hegar gave the Texas Legislature some good news with a black-ink budget projection for the coming biennium, suggesting they may have more than $9 billion more to spend than in 2017. Some of that will go for Hurricane Harvey costs (thought the Rainy Day fund should also contribute to that), some will get gobbled up with increased costs for entitlement programs, and any school finance fix will almost certainly consume the lion's share of the rest.

But it's not inconceivable that the Texas Legislature could use some of that money to solve ongoing problems in the justice system. What might that look like? Here are some ideas Grits brainstormed; let me know in the comments if you think of others:

Eliminate the Driver Responsibility Surcharge: $300 million
Both Texas political parties and every politician under the Pink Dome you ask wishes the Driver Responsibility Surcharge weren't the law. But the program brings in roughly $300 million per year - half goes to the General Revenue fund, half goes to hospital trauma centers - and politically, the surcharge can't be repealed unless the state comes up with the money.

Raise the Age: $45 million
When the 85th Texas Legislature ended, Texas was one of seven states that prosecuted 17 year olds as adults. Today we're one of only four. There's a decent chance that, if the Lege doesn't change the law this year, we'll be the only one when the 87th Legislature convenes in 2021. The Legislative Budget Board estimated making the shift would cost $45 million during the first biennium of implementation, and $70 million per biennium after that, to send youth through juvenile corrections systems instead of the adult side. (There's some evidence these costs are overstated, under-estimating related savings.) The House has passed RTA legislation two sessions in a row, but senators and the Lt. Governor are unlikely to bite without a dedicated allocation in the budget.

Boost reentry funds: $30 million
Increasing funds to prisoners leaving TDCJ from $100 to $300 would cost ~$13 million per year, $26 million per biennium. Tack on another $4 million per biennium to make sure they have driver's licenses or ID cards when they hit the streets, and mandate that DPS issue them based on information provide by TDCJ. Neither of these were in the agency's appropriations request, but they should have been.

Crime labs: $8-10 million
The Legislature either needs to boost funding for crime labs by perhaps $8-10 million per biennium or start charging for services. The DPS LAR only asked for $5.8 million that was taken away from the agency in user fees. But that amount was insufficient to solve the months-long backlogs presently being experienced. Legislators should find out what would be needed to reduce backlogs to a reasonable period then fund DPS crime labs at THAT level. Or, alternatively, Grits supported the user fees the Governor rescinded in the interim and think they're a reasonable way to fund this service.

Prison costs soaring: Cuts needed
TDCJ's appropriations request asked for an increase of more than $700 million beyond what's already a $7.3 billion-with-a-b budget. The LAR suggests the agency needs $247 million over the next biennium to maintain current (low, perhaps even unconstitutional) standards for provision of inmate health care, and another $32 million for probationer treatment funds. They also asked for $156 million for staff raises and $146 million in facility repairs. These are not unreasonable requests, but Legislature should enact further decarceration reforms and close understaffed, rural prison units and those requiring costly repairs to pay for those requests and reduce upward cost pressures.

Indigent defense: Est. $10 million
Counties want the state to pay 100% of indigent defense costs. For reasons Grits has articulated previously, that's a specious and self-interested position that flies in the face of the traditional state-county roles in the justice system. That said, the state would benefit from additional, targeted investments in the indigent-defense system. They should prioritize Texas Indigent Defense Commission grants for public-defender officers, which are the most effective and efficient way to deliver legal services where they're needed most. They should finance a capital defender office to handle indigent death penalty cases. ($1 million per biennium.) They should boost funding for the Office of Capital and Forensic Writs. And they should take Judge Elsa Alcala's advice to fund counsel for indigent defendants filing habeas corpus writs related to ineffective assistance of counsel. Obviously, public-defender grants could be of any size, but $10 million added over the biennium to these priorities would make a big difference.

I didn't include an estimate for upgrades to mental-health services because a) I have no idea how to evaluate costs or need, and b) my sense is the state would be better off if these services were primarily utilized outside the justice system, breaking from past practices. But that's certainly another area in need of investment. And there are probably specific investments to reduce competency restoration waits and to better meet the mental-health needs of incarcerated people that deserved to make this list. The Lege could boost state investments well into the nine-figure range and it still wouldn't be enough.

In praise of pretrial-detention algorithms, the 'failure to appear fallacy,' Louisiana ↓ technical revocations, and other stories

Several national items merit Grits readers' attention here during the calm before the 86th Texas Legislature storm.

Debtors-prison reform: Economic populism and the justice system
The New York Times this week published a lengthy, excellent feature on how criminal fines and fees oppress the poor. Good analysis and background.

Best evidence supports use of risk assessments in pretrial release decisions
Some prominent heavyweight corrections researchers responded to criticisms in the press, not to mention by left-wing advocacy groups (I'm talking to you, ACLU of Texas), of risk-assessment algorithms used to aid pretrial detention decisions. One of the authors, Jennifer Skeem, has presented to Texas probation audiences, and is someone whose research Grits has relied on for years. Everyone concerned with the use of risk assessments in pretrial release determination should read this 20-page analysis. They show that the best evidence available - taking into account all the available studies about what works - supports use of risk assessments, which generate better safety outcomes and less unfairness than judges flying by the seat of their pants. The authors document consistent research-based findings that a structured decision making process, in which judges formally take pretrial risk assessments into account, produces the best results. If you care about bail reform, read this. Their analysis more or less coincides with Grits' views, perhaps because mine are to a significant degree influenced by Skeem's scholarship: Racial disparities created by validated risk assessments in pretrial detention decisions (the analysis differs for sentencing, predictive policing, and other risk-assessment uses) are measurably less problematic than disparities and injustices such assessments prevent.

The Failure to Appear Fallacy
A lot goes in to Failure To Appear (FTA) rates, and this extensive article from The Appeal offers one of the the more nuanced looks you'll see on the topic, including a detailed description of how judges in Harris County - most of whom were ousted in the last election cycle - sabotaged bail reform in an effort to artificially drive up FTA rates and use them as a "political football." Excellent background for bail reformers.

Louisiana successfully decreased technical-probation revocations; why can't Texas?
After the Texas Legislature created Intermediate Sanctions Facilities as part of the state's widely lauded 2007 probation reforms, the parole system was able to radically reduce the number of people sent to prison for technical violations. However, the probation system could never accomplish it: half of revoked probationers in Texas were sent away for technical violations, not because they committed a new crime. So I was interested to see the Pew Charitable Trusts researching causes for a big reduction in technical probation violations in Louisiana. The Bayou State was able to reduce the amount of time revoked probationers were incarcerated, reduce the number of revocations for new crimes (read: reduce crime), and save millions of dollars in incarceration costs, Pew found. If they can do it, why can't Texas?

Prisons during shut down
The Marshall Project has the best coverage I've seen of the brutal effects on federal prisons from the government shut down. MORE: From the Washington Post.

Bail injustice worst case
For all of the flaws which may exist in Texas' pretrial-detention system, they're minimal compared to the Philippines, which is the only other nation in the world besides (some states in) the U.S. that uses wealth-based bail to determine pretrial detention. Money quote: “When you are detained in Philippine jails, you are being tortured.”

Tuesday, January 08, 2019

Appeal of Harris bail suit withdrawn, lazy judges cause jail overcrowding, and the paradox of progressive prosecutors

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

Appeal withdrawn in Harris Co bail suit
The new Harris County misdemeanor court judges have withdrawn their appeal in ongoing federal bail litigation of the 5th Circuit's ruling that inmates must be released within 48 hours. The Houston Chronicle's Keri Blakinger and Gabi Banks reported that the county has spent $9 million fighting Judge Lee Rosenthal's order.

Lazy judges contribute to jail overcrowding, colleague charges
Eric Dexheimer kicked off his new role at the Austin bureau of the Houston Chronicle with a bang, publishing a great story on why the Hays County Jail is overcrowded despite declining crime. One of the judges has accused his colleagues of working less than half time!

Less News
The Dallas News' staff cuts on the eve of the Texas Legislature made me depressed. Whether or not the paper cuts its capitol bureau, that's a big loss. And I was pissed to learn the company that cut the staff just gave executives $1.2 million in bonuses. Grits presently has subscriptions to five Texas dailies and two national papers. It was six, but the Star-Telegram finally cut its staff so much there wasn't enough news I cared about being published to justify a subscription. I'm not saying the product at the Morning News will become that sparse, but I'm worried about them, not to mention everyone laid off. Godspeed to one and all. People beat up on the daily press, including me sometimes, but we all rely on them.

Ignored to Death
From Michael Barajas at the Texas Observer: "Ignored to death at the Bexar County Jail." I always get nervous when Texans start touting their methods as a "national model," as folks in San Antonio are wont to do about mental-health services in their justice system. Anytime you're asking corrections people to deliver medical care as an aspect of punishment - whether mental health services, drug treatment, you name it - the system is reaching beyond its ken. In this case, a schizophrenic woman was arrested last summer and jailed for Class B criminal trespass. She received no treatment for her schizophrenia, spent five months in jail waiting on a psych evaluation that never came, then died of a heart attack two weeks before Christmas.

Changing of the guard in McLennan County
See coverage of the Barry Johnson, the new McLennan Coutny District Attorney who ousted Abel Reyna, and the wave of retirements and other departures poised to bring big changes among judgeships at the McLennan County courthouse over the next couple of years.

Paradox of the Progressive Prosecutor: Urban v. Rural
For Grits' reading list: Harvard Law Review, "The Paradox of the Progressive Prosecutor." Here's an unmentioned paradox: In Texas, with the lingering exception of Tarrant County, our urban District Attorneys are almost all Democrats promoting reform ideas. However, the state prosecutors' association's board is dominated by rural DAs pushing more regressive agendas, with key staff held over from the era when Chuck Rosenthal and John Bradley dominated the group's politics. Perhaps it's time for an Urban Prosecutors Association in Texas. Why should taxpayers in urban counties seeking reform finance a rural-dominated association through dues that's constantly opposing that agenda?

Sunday, January 06, 2019

Innocence Project Math 101: Why it's certain eyewitnesses are still sending innocent people to prison in Texas

Our friends at the prosecutor association want to pretend Texas has solved its problem with eyewitnesses falsely identifying innocent suspects after the state passed non-binding guidelines for police lineups in 2011. Shannon Edmonds last night was crowing on Twitter that the last exoneration based a false ID in Texas was in 2010, and the state had solved the problem in 2011.

This is such a disingenuous claim I thought I'd dissect it without the 140 character limitations.

Texas hasn't seen more eyewitness-based exonerations because we've run out of old DNA cases. Those offered a unique window onto false convictions from which we have learned many lessons. But now that there aren't more of them, it's disingenuous bordering on mendacious to pretend that there aren't more false convictions happening.

All of the false ID cases where someone was exonerated by DNA happened because biological evidence still existed from an old, pre-DNA-era conviction that was available for testing. In new cases, DNA testing will (eventually, hopefully) happen as a matter of course where that's possible. Those DNA exonerations were a one-time thing: A window onto the system's failures provided thanks to the advance of technology.

But here's the rub: DNA evidence only exists in about 10 percent of violent crimes. And in those older cases, in the overwhelming majority of instances, biological evidence had been destroyed or damaged and could not be tested. Evidence was only available in a tiny fraction of cases, and even then, prosecutors fought tooth and nail to keep from having it tested. So for every person exonerated by DNA, there are dozens more whose false convictions could never be discovered because the evidence doesn't exist.

This is Innocence Project Math 101.

The existing crop of DNA exonerees is not remotely all the innocent people who've been falsely convicted, they're just the lucky few who could prove it.

DNA exonerations should be viewed much like a poll. A pollster may interview 500 people to gauge the opinions of 5 million. Because we know there are other criminal cases using the same, flawed evidence as in the exonerees' cases, we can infer that the problem exists more broadly in the same way a pollster can say that X% of people approve or disapprove of the president based on a small sample.

What we learned from that DNA "poll" is that faulty eyewitness IDs are the most common causes of false convictions. And studies show that those errors are reduced, but not remotely eliminated, if cops use the best practices promoted in the 2011 Texas legislation. Error rates are still significant.

Because the same practices that caused false convictions in the DNA exonerations are still being used (the guidelines are not mandatory) - and because best practices only lower the error rate, they don't eliminate it - it's a logical fallacy of the highest order to pretend that, because DNA exonerations have stopped, so have false convictions. They've just become invisible again without the fortuitous window DNA provided.

TDCAA was reacting to a New York Times story about false identifications when suspects are allowed to page through mug shot books, as is common in many jurisdictions across the country. Dallas PD was identified as a department that forbids the practice because it leads to false accusations.

The story cited a study out of Houston which analyzed whether photo lineups should be simultaneous or sequential and whether confident witnesses are more likely to be accurate. Study authors parsed data to say that simultaneous is probably better and confident witnesses are more likely to be accurate - a finding they admit contradicts "[l]aboratory-based mock crime studies."

Shannon disputed the Times' take on that research, quoting the study authors' conclusions that “eyewitness confidence is a highly reliable indicator of accuracy.”

However, there's a LOT of error still being made by witnesses: The Times mentioned one cohort in the Houston study in which 47 percent picked the wrong suspect, but overall, 29 percent of witnesses chose a filler from the lineup, while 32 percent chose a suspect. (The Times also pointed to a meta-analysis of a large number of studies that found witnesses pick the wrong person 37 percent of the time.)

One shortcoming of this analysis: The study operated under a baseline assumption that if the suspect is chosen, it's an accurate ID. That's a dubious, self-fulfilling prophecy. Some of those choices were likely errors, too. When a suspect picks a filler, the detective knows it's wrong. The innocence problem arises when the wrong suspect is in the lineup in the first place and a witness picks them.

Confident witnesses were more likely to pick the person the officer considered a suspect, but there were also less confident witnesses who did so, and some highly confident people picked fillers.

And some of the error was generated by police.

The Houston study evaluated both "blind" and "blinded" lineups. "Blind" means the officer prepares the array and shows it to the witness in a fashion so that they can't view what the witness is looking at. "Blinded" means one officer prepares the array and another detective who does not know the identity of the suspect administers it. Both methods are allowed under Texas law.

It turned out, an independent panel not involved with the crime could pick the suspect out of "blind" lineups 28 percent of the time! (It would only be 1/6 if it were random.) So the arrays themselves were biased. Researchers hypothesized that cops took more care to prepare photos where the suspect doesn't stand out if they know another officer will see their work.

Texas courts won't exclude even the most biased lineups. For example, in 2017, Grits discussed a case in which the witness described a suspect as wearing a red hoodie, and police made him put one on before having his photo taken; he was the only one dressed that way in the photo array. But the 14th Court of Appeals said the testimony was okay because the Legislature made eyewitness procedures guidelines instead of requiring them, and courts had always let it in before.

It's not that reformers didn't want best practices to be mandatory back in 2011. But the DA's association and law enforcement interests fought vigorously against it, and the Lege bowed to their wishes. Hence, biased lineups continue to taint the system. That's what's disingenuous about TDCAA's faux concern over valid lineups - they're the ones whose regressive advocacy ensured bad lineups would continue to be used in court, even after the 2011 law.

RELATED: From the New York Times: "Jazmine Barnes case shows how trauma can affect memory."

Friday, January 04, 2019

Prospects for reduced marijuana penalties in the 86th #txlege

The Texas Legislature this year is primed for its most serious effort yet at reducing penalties for user-level marijuana possession.

Legalization is off the table. This is a debate about reducing punishments. (I'm setting aside here medical marijuana proposals, which Grits doesn't track closely and are outside my area of expertise.)

There are essentially two proposals for reducing pot penalties that have a chance, and each have been endorsed by prominent Texas GOP officials.

Gov. Greg Abbott during a campaign debate endorsed reducing penalties for up to two ounces of marijuana from a Class B to a Class C misdemeanor. That would reduce the maximum punishment from six months in jail and a $2,000 fine to no jail and up to a $500 fine.

Rep. Alma Allen has filed HB 371 making possession of up to one ounce a Class C, so our Republican governor has proposed a more aggressive reform measure than this Democratic state rep. (Grits doesn't see any reason to create a new stair-step here; they should amend the bill to cover up to 2 ounces, like the Governor suggested.)

Meanwhile, the 2018 state GOP platform endorsed a measure to make user-level marijuana possession a civil penalty with a small fine, essentially decriminalizing but keeping it a civil infraction.

State Rep. Joe Moody has filed a new incarnation of that proposal, HB 63, which cleared committee with bipartisan support in 2017.

The combination of the Governor's endorsement and selection of a new House Speaker opens the political door for reforms to pass.

Both proposals have been passed out of the House Criminal Jurisprudence Committee before - a version of the Allen bill unanimously did so as far back as 2005 - but neither ever received a vote on the House floor. 

Joe Straus had many chances to let members take that vote when he was Speaker and never would, so him leaving potentially gives the issue new legs. That both the party platform and the Governor endorsed marijuana reform in some fashion gives members more political cover than at any time in the past.

Indeed, since polling consistently shows Texans favor reduced pot penalties, the need for political cover is something pols only seek out of habit. It's pretty clear this is a popular policy that will benefit them politically. Based on whip counts from last session when we were hoping the Moody bill would get to the House floor, Grits believes the measure will easily pass the lower chamber by triple figures if they ever get to vote on it.

That said, nothing about this is a slam dunk.

Every bill in the Texas Legislature except the Appropriations package is by definition more likely to fail than to pass. And while the Governor has endorsed reducing penalties, the Lt. Governor's position remains a mystery. It remains to be seen if he's as respectful of the party platform when it comes to marijuana as he has been over bathrooms, immigration, etc..

And just because a Speaker who stymied reform left, that doesn't ensure the new Speaker will back it, even if the Governor and/or his party's platform do.

Finally, as one would expect, prosecutors and police unions are already crapping on the idea. Their biggest (stated) concern is that there's no test for drivers to tell if someone is under the influence of pot. But that's true now! Nothing changes if we punish pot possession at lesser levels. And again, legalization is off the table. So that seems disingenuous to me, an excuse for opposition rather than a compelling reason.

Bottom line: This is a moment for hope and optimism among marijuana reformers. But it's also the moment to get to work. There's a lot to be done before such changes become reality.

Wednesday, January 02, 2019

More than a clerical error: DPS audit proves Austin PD forced out sex-crimes chief for refusing to fake clearance rates

Auditors from the Texas Department of Public Safety  confirmed allegations that the Austin Police Department pressured the head of its sex-crimes unit to improperly classify rapes as "exceptionally cleared" when that was not the case. She was removed from her position when she didn't comply.

Chief Bryan Manley announced the results from the DPS audit late afternoon on New Years Eve, hoping it would get lost in the holiday media cycle. That's a disgraceful, punk move. This is too serious an issue to play media games. UPDATE: ProPublica reported that Manley received the preliminary results from DPS on Dec. 13, more than two weeks before he released them.

As is typical in Austin, the local press downplayed criticisms of APD, portraying the problem as a clerical error. The Statesman headline was, "Austin police improperly classified some rape cases, audit finds." KXAN's headline was, "DPS report: 30 APD rape cases should not have been cleared," although in fact DPS audited just a sample and those 30 cases represent many, many more. KUT parroted the same line, failing to mention that APD forced out its division chief over the issue.

These headlines could/should have been something along the lines of "DPS confirms whistleblower account of inflated rape clearance rates," but the Austin press remains in the pocket of local police and rarely publishes explicit criticisms unless backed into a corner by outside reporting and circumstances.

That's what happened here. Despite local advocates pressuring the department all year over inadequately investigated rape cases, the Austin press didn't cover the story until a podcast from national outlets reported on the whistle blower and bogus clearance rates.

Notably, although the DPS audit released Monday found a third of audited rape cases were misclassified,  Manley earlier claimed his own staff had audited the cases and found nothing wrong. The Statesman reported in December that "he asked his staff to do a random audit of cases to ensure they were properly closed. He said they found the department was complying with FBI guidelines."

I'd like to know more about this random audit the Chief supposedly had his own people do. Why did they find zero cases were miscategorized, and DPS found a third of them were? Were these staff incompetent? Or were they given directions designed to cover up the problem instead of expose it? That's the sort of thing an aggressive local press ought to be digging into with open-records requests, but Grits won't hold his breath.

All press reports that portray this as some obscure data mix up are misleading. This was a scandal, flat-out fraud and malfeasance, with APD removing the head of a major division because she wouldn't falsify data to make the department appear to be solving more crimes. As Grits opined on Twitter when the news came out, "This was not a bureaucratic error, as Manley would like to portray it. The head of the sex crime unit was removed from her job because she refused to falsify clearance-rate numbers. Thank God she spoke up!"

The ouster of the sex-crimes-unit head happened on former Chief Art Acevedo's watch, but Chief Manley's ham-handed response has made the scandal and its cover-up his own. In a city with an aggressive, watchdog press, he might not survive the scandal. In Austin, he's betting he'll limp through thanks to lapdogs in the lame-stream press, and a few years ago, that might have been a safe assumption.

But survivor advocates and city council members are going to read the audit for themselves, and in the wake of the union-contract fight, mainstream media has proven less important in the capital city than ever before when it comes to policing politics. Whether the press report it or not, APD has been caught in a lie for all to see. If he wants to keep his job, Chief Manley must stop the media games and obfuscations and address these topics more forthrightly.

An apology to the rape survivors whose cases APD lied about - claiming their cases couldn't move forward because the victims wouldn't cooperate - would be a good start.