Sunday, July 07, 2019

Reasonably Suspicious podcast, July 2019 episode: Featuring an interview with TPPF's Marc Levin about parole, allegations of judicial misconduct in San Antonio, and a proposed mascot for the Texas Court of Criminal Appeals

Here's the July 2019 episode of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice politics and policy. Co-hosted by me and Amanda Marzullo, it's also available on iTunes, Google Play, and Soundcloud.

This month:

Top Stories
  • Texas Legislature legalizes hemp and in the process may have accidentally made it impossible to prosecute workaday pot cases. Is this really a problem?
  • San Antonio Judge ignores due process on probation revocations. How common is this?
Marc Levin of the Texas Public Policy Foundation discusses probation and parole policy.

Chris Harris of Just Liberty on the rollback of Austin's anti-homelessness ordinances.

The Last Hurrah
  • Texas Legislature created 50 new crimes in 2019
  • Alfred Brown denied innocence compensation
  • The Canadian Supreme Court has a fuzzy mascot owl named "Amicus." What should be the mascot for the Texas Court of Criminal Appeals? My suggestion:
Find a transcript below the jump.

For the summer #cjreform reading pile

Grits will head on holiday soon, and while I'm hoping to spend time engrossed in fiction, I usually end up reading a few academic articles on justice topics for which my day-to-day work hasn't afforded time. To that end, here are a few items I'm flagging to read later:
  • The Rational Villain Myth: This article addresses a hobbyhorse I've been riding most of my adult life. Economists think they know a lot about crime. In my experience, such certainty is based on the same delusions that the rise of behavioral economics (for which Richard Thaler won a Nobel Prize) intended to correct. Thalerites aside, MANY traditional economists cling to this "rational villain" theory. Economists generally tell us that punishment is the "price" of crime and if you want less crime, one need only raise the price. However, crime is a more complicated social problem than that, and in situations involving addiction, family violence, mental-health problems, extreme poverty, or an array of other variables, that simplistic approach harms people and creates blinders that cause policymakers to bypass better solutions. I'm looking forward to digging into this one.
  • The Policing of Prosecutors: This article seeks to apply lessons from regulating discretion in administrative law to the prosecutor's function, and it's an interesting approach. Parole decisions would benefit from similar tools.
  • The Founders Forfeiture: Asset forfeiture in early America included constraints and recourse for property owners that don't apply to modern forfeiture cases.
  • Beyond the Algorithm: The Center for Court Innovation examined issues of pretrial reform, risk assessments, and racial fairness.

Wednesday, July 03, 2019

Biometric Blues: Facial-recognition tech starting to be good enough to threaten privacy

Several recent items related to the use of facial recognition technology by law enforcement caught Grits' eye lately:
The rise of facial recognition and other biometric identification technology was an early hobbyhorse on this blog. I stopped covering the topic after civil libertarians lost all the big, related fights at the Legislature over gathering biometric data, particularly from Texans' driver's licenses. (Texas allowed DPS to gather Texas drivers' fingerprints and facial-recognition biometrics from their licenses then almost immediately began to hand the data over to the federal Department of Homeland Security.) But those were bitter, memorable battles, with the losses made more palatable only by the reality that, back then, facial-recognition tech simply wasn't ready for prime time and didn't work well enough to threaten privacy.

Today it's closer, but not quite yet there. But that utilitarian excuse for not confronting totalitarian surveillance tech will soon fall away. Even if facial-recognition is reliable, it's a bad idea as a generalized surveillance tool. So, arguments against it must ultimately rest not on the prospect of errors (right now, they have higher error rates when identifying racial minorities), but on the prospect of privacy vanishing, and a new form of high-tech totalitarianism rising, if the product were to ever work perfectly.

For more thoughts and background on the subject, here's an old blog-post series I wrote headed into the 2005 Texas legislative session:
Looking back, much of it still holds up.

Homes and services, not criminal prosecution, are the best (read: only) solution to homelessness. Keep the cops out of it!

We've all heard the refrain: Police are overworked because they've been asked to solve society's social problems.

So why do our police-union friends get so upset whenever government tries to handle those problems by other means?

The brouhaha over Austin's homeless-ordinance revisions - which eliminated the no-sit/no-lie ordinance and modified the panhandling ordinance to make it constitutional - really is much ado about nothing. In fact, it may even be cause for cautious optimism. At the same meeting, the Austin City Council also voted to create a new homeless shelter to provide expanded services, on top of voters approving housing bonds in 2018 to expand affordable housing options.

Giving tickets to homeless people who could never pay them wasn't solving any problems, so it's not like Austin eliminated tools that were working. All the law did was set people up to have an arrest warrant later, at which point county taxpayers would host them in the jail for a while. But that doesn't help anything, and in the long run, created additional problems.

Austin spent years ramping up punitive responses to homelessness that never worked. Maybe this won't either, but it's got a better chance than continuing with the failed status quo.

The question of "What works?" brings us to an excellent and timely Texas Tribune article by Juan Pablo Garnham, "Why homelessness is going down in Houston and up in Dallas." The short answer: An influx of funds, mainly from the federal Department of Housing and Urban Development (HUD), to provide homes and services to homeless people. As a result, Houston has reduced its homeless population by 53 percent, according to an annual census, while the problem in Dallas is getting worse, surpassing H-Town in the latest count. What's their secret?
“If you have a homeless person and you put them in houses, and simultaneously give them social, behavioral and health support services, 92% of them will be stable in that facility,” [Houston Coalition for the Homeless executive director Mike] Nichols said. 
But there’s a hidden secret in Houston’s formula: coordination. 
The scenario from 20 years ago when different organizations would serve food, give clothes or offer shelter — all done separately — has changed. There’s now constant communication between these institutions and a digital database called the Homeless Management Information System (or HMIS) that allows people at several organizations to understand each case. 
Most cities today have HMIS in place, but Houston was quick to adopt it, and that helped organizations strategize, analyze, share information and find personalized solutions.
Giving homeless people tickets won't get them off the streets, but providing them homes, services, and opportunities to get back on their feet will. Austin has finally chosen to shift resources toward confronting homelessness with policies that at least have a chance at working instead of doubling down on ineffective, send-in-the-cops strategies.

Let's do mental health next.

Monday, July 01, 2019

No need for special session on marijuana potency, but if Governor Abbott calls one, he should greenlight broader pot debate

Grits has enjoyed the delicious irony of the Texas Legislature legalizing industrial hemp in such a way that criminal prosecutors now say they can't make their cases. But the growing calls for a special session over this issue should be quashed. There's really no need; worst-case scenarios aren't that bad, and there are easy fixes that don't involve new legislation.

The issue is that industrial-grade hemp with a THC content below .3% has now been legalized, first by the Trump Administration and then by the Texas Legislature. But Texas crime labs don't have the necessary equipment to delineate marijuana by THC levels. (A legislator told Grits these machines cost about $44,000 each. UPDATE: This was understated. According to the Houston Chronicle's Keri Blakinger, $44k was the cost for Ag-grade testing equipment; forensic-grade machines would run between $300k-$400k. AND MORE: Blakinger has now reported that the more expensive machines are needed for analyzing edibles, but not plant material.)

Here's the thing, though: this won't stop police from arresting people for marijuana (in jurisdictions that still do so). They only need probable cause for an arrest. Instead, the change would allow defense attorneys to challenge allegations later on by demanding the THC levels be proven. Most pot arrests already result in time-served pleas after just a few days, so nothing would really change except the lack of a criminal conviction.

Given that the Governor, who is the only one who can call a special session, wanted to remove pot smokers from county jails in the first place, he may decide just stand pat and allow this legislative error to accomplish what Lt. Gov. Dan Patrick would not allow.

To be clear, like Governor Abbott, I don't believe people should be arrested for low-level pot possession in the first place, much less charged with a Class B misdemeanor for it (max penalty: 6 months in jail and a $2,000 fine). So as far as I'm concerned, there's no crisis here that impacts public safety. Everything will be fine and the sky won't fall if nobody is prosecuted for pot possession over the next two years (a highly unlikely, worst-case scenario).

Does it put prosecutors in a tough spot? Sure. But they have an easy alternative: Just use their discretion to dismiss these cases.

Alternatively, if the Governor agrees it's a big problem to dismiss these cases, the situation can be resolved without a special session. If there were no other options, maybe the Governor's Criminal Justice Division could help pay for new equipment with grants. But in most cases, if District Attorneys are really worried about it, they could pay for the machines out of their asset forfeiture funds. Or they can just stop accepting charges in these cases, which would be easier, cheaper, and have no negative impact on public safety.

If the Governor wouldn't call a special session after Hurricane Harvey, the idea that we're going to do one to salvage petty pot prosecutions makes little sense.

If he DOES choose to call a special session on marijuana, though, Governor Abbott should frame the call in such a way that allows the Legislature to take up his proposal to reduce marijuana penalties. That suggestion was endorsed in the state GOP platform and polling shows majorities in both parties support the idea. That way, instead of calling attention to the failures of Texas government, a special session call could be framed as promoting something positive that's overwhelmingly supported by the public. That's the only way a special session makes sense.