Wednesday, August 21, 2019

Harris County probation department making big improvements, but it's still probation

As part of reforms implemented with its MacArthur grant, Harris County consolidated all of its state jail cases into one district-court docket called the "Responsive Intervention for Change (RIC) Docket." According to the Texas Comptroller:
Before the reforms, a disproportionate share of Texas' state jail felons (SJFs) were from Harris County — 26 percent in 2014, well in excess of the county's 16 percent share of the state's population. Five years later, its share of the total had declined by 90 percent, from 5,817 to 611. Harris County still sends more felons to state jail than any other county, but its overall share of the SJF population has fallen to 10 percent
The difference, May explains, is that the county has increased the number of defendants willing to accept probation through its RIC Docket, specialized caseloads (e.g., for substance abusers) and pre-trial diversion (PTD) programs offering mental healthcare, drug rehabilitation and work-release programs rather than prosecution. The county also significantly reduced the time defendants spend in jail awaiting trial, which greatly curtailed “good time” credit, removing the incentive to just sit idle or plead out to state jail, thereby reducing incarceration costs. 
"When defendants are not racking up a substantial amount of back time in jail awaiting disposition," May says, "they are more open to diversion or community supervision." 
Before their cases are decided, defendants' risk levels are assessed and their needs identified to target what's causing their criminal behaviors. The most common contributing factors, according to the CSCD, are attitude, peers, personality, family, education/employment, activities and substance abuse. 
On the back end, greater community supervision has helped to halve the re-arrest rate of the county's released SJFs, from more than 60 percent to less than 30 percent.
These are excellent outcomes and a great improvement over past practices. Grits finds particularly interesting the correlation between reduced pretrial detention and people's willingness to accept probation in a plea bargain. Reducing inefficiencies in one part of the system generated ancillary benefits in another.

Even so, there are moments when Harris County reminds us even the best probation departments are still doling out harm. This week, they tweeted out a success story of a woman named Sarah who completed probation and was released five-months early. HCCSCD praised her for having paid money to complete an "Effective Decision Making" class, then patted themselves on the back that, now that she has no fees, she can afford a new child's seat for her infant!

"How many people still paying fees are making similar tradeoffs to complete probation requirements?" Grits wondered aloud on Twitter. Certainly, more than a few.

The department's use of early release for successful probationers is commendable and deserving of praise, as is the new state-jail docket. But the perverse choices forced on this successful probationer - whether to pay for an "Effective Decision Making" class or a car seat for her infant daughter - are commonplace throughout the system. At this point, they're more a feature than a bug.

RELATED: From the state comptroller, "Texas state jails: Time for a reboot?"

Fraternal Order of Police gain Texas foothold in H-Town

Police union politics in Texas could become even more radicalized now that the Houston Police Officers Union (HPOU) has joined forces with the Fraternal Order of Police, a police-union umbrella group and Trump-administration favorite that had not previously had a major foothold in Texas.

HPOU's president, Joe Gamaldi, was elected to FOP's leadership team, the Houston Chronicle reported recently. For many years, HPOU was affiliated with the Combined Law Enforcement Associations of Texas (CLEAT). Then, it briefly teamed up in a sort of coalition with the Dallas police union and the Texas Municipal Police Association, CLEAT's biggest rival.

By bailing on TMPA and teaming up with FOP, Grits fears HPOU may have launched a race to the bottom. FOP is well known for backing firebrands and demagogues, and Gamaldi was already a shoot-from-the-lip kind of guy.

Grits read: Expect more outlandish statements and demagoguery from Joe Gamaldi, and expect the CLEAT and TMPA-affiliated unions to follow their lead and become more aggressive to try to match them. I hope I'm wrong, but this strikes me as unfortunate news.

Bexar County to give Narcan to addicts exiting jail, but many still won't call 911 for fear of felony arrest

Addicts leaving the county jail in San Antonio will now receive a dose of Narcan in case they overdose, the Express News reported. Overdoses are more common after incarceration because addicts may have lost some of their tolerance. That can cause people to overdose when they use the same amounts they used before. Funding for the program came from a federal grant.

Of course, folks can still be arrested for drug possession if they call 911 to report an overdose. A Bexar Sheriff's deputy told the paper that:
people shouldn’t be concerned about contacting authorities should a friend or family member overdose. 
“That’s the least of your worries at that point, ending up in jail,” he said. “You should be worried about surviving, or about leaving your child without a mother or father.”
That's easy to say, but it would mean more if Gov. Greg Abbott hadn't vetoed Good Samaritan legislation in 2015 that would have prevented 911-callers from being arrested for calling in an overdose.

In 2018, the Austin Statesman reported that, "similar laws in other states have resulted in as much as a 15 percent drop in opioid overdoses in the past five years, despite nationwide increases. The laws also do not appear to increase the number of drug users, the data shows."

That's shaping up as one of the worst and most destructive vetoes of Abbott's tenure so far.

Tuesday, August 20, 2019

Austin should freeze police hiring until pension problem resolved

Since the local press has ignored the topic, let's delve a bit deeper into the pension crisis at the Austin Police Department. As Grits reported yesterday, an audit released in July found that the city will never cover its police pension liabilities at current contribution rates.

Bizarrely, in response to this news, some at city hall have claimed they need to hire MORE police officers with exorbitant pension promises so they can pay for the retiring officers. This argument fundamentally misunderstands how pensions work, imagining the fund as some sort of Ponzi scheme. It is not. Instead, employees and employers make contributions for each officer into a long-term investment fund. More officers, the greater the required contributions. Moreover, Austin officers contribute far less than the city. So every new officer increases the city's cost and liability substantially (they become 100% vested after just ten years).

The confusion perhaps is somewhat understandable. Social Security works that way: Money which people pay into Social Security today is directly used to cover benefits for current retirees. There's no long-term investment fund tied to individuals' contributions. Pension benefits, by contrast, are paid from the investment fund, not from current employee contributions.

I don't know who's spreading this misinformation at city hall, but hiring more officers when the city can't afford pension costs for the current ones amounts to dousing a fire by tossing kindling on top. Will Rogers' advice Grits quoted yesterday remains apropos: "When you find yourself in a hole, stop digging."

The largest cohort of former police officers receiving pension benefits are under 60 years old, with an average annual benefit of more than $70,000! By contrast, retired Austin officers in their 80s receive about $47k per year. (All this on top of social security, any military benefits, etc..)

At present, Austin has 345 former officers in their 50s drawing more than 70k per year in benefits each, and more are added to their number all the time. (Median income in this city is only $63k!*) So things are about to get very expensive, very quickly. It's not sustainable to add more officers until that problem is fixed.

Calendar year 2018 was when the Austin police pension went from a status of problematic-but-salvageable to essentially broken. Unfunded liabilities ballooned from $415.5 million to $671 million. Exacerbating the problem, the pension fund is carrying about $89 million in losses on its books that it will eventually require a downward adjustment.

Those combined trends are why actuaries say APD's pension plan will never cover liabilities at current contribution levels.

And let me say it first: The city can't and shouldn't cover all of the shortfall. City Council should open the contract back up and adjust these lavish commitments downward, or else have police officers themselves contribute more.

One final thought: Grits suspects there's an untold story behind the $89 million in un-recognized losses that deserves additional scrutiny, assuming any local reporters ever discover the story. According to the table in this 2017 MarketWatch story, Austin's police pension fund had 40% of its investments in "non-traditional" asset classes, which is the category that got the Dallas police fund in trouble. Are those the investments that are going south?

Further, a few years ago, the Statesman ran a story about the fund investing in several projects brought to them by two board members who were marketing themselves as consultants to companies seeking pension investments. They disclosed the relationships and abstained from voting, but the board had no rules barring such conflicts of interest and board members defended the practice.

Between the fund making relatively large investments in non-traditional assets, board members out hawking themselves to potential investment clients, and $89 million in un-recognized losses sitting on the books, my Spidey-sense tells me there may be a significant story behind how the fund went from (ultimately) solvent to not in calendar-year 2018.

*Underlying link changed after publication, amount corrected upward from $55k to reflect most recent available Census Bureau data.

Monday, August 19, 2019

Austin police pension obligations will swamp city budget if City Council doesn't change course

One of the most important, least-covered stories in the Texas criminal-justice arena must be the failure of Texas municipalities to fund police-officer pensions. For the most part, the issue only indirectly affects #cjreform efforts, so Grits has mostly discussed the topic as an aside, the way one remarks on a multi-car auto wreck occurring on the other side of the highway as one drives by.

But one place where the issue does come up is police staffing. In Austin this year, the city manager has requested thirty (30) new officers for Austin PD.

So far, the decision to hire new officers has been de-coupled from assessments of the city's obligations to pay officers' pensions when they retire. An audit report which came out last month shows why that must change.

Austin under-funds police officer retirement to such a degree, according to the report, that current contribution levels simply "are not sufficient to support the benefit structure of the System." Indeed, here's an eye-popping auditor's observation: "The City’s current contribution rate of 21.313% is not expected to amortize the unfunded liability over any amortization period."

In other words, at current contribution rates, the City will never cover its police pension costs. If the contribution rate was raised from 21.313% to 37.302%, the fund could become solvent 20 years from now! Make the contribution 29.5%, and it would take 40 years to set the books straight.

These are big, expensive, long-term problems. Austin cannot afford to pay for its police force right now, or at least they're not presently paying sufficient contributions into their pensions. And with new Legislature-dictated caps on how much cities can raise taxes, it's difficult to imagine how the problem can be fixed. Indeed, in this budget cycle, it cannot be.

So what can Austin do? Grits thinks of Will Rogers' excellent advice: "If you find yourself in a hole, stop digging."

Adding 30 new staff positions to the force when the city cannot pay for the ones it already employs makes no sense. Instead, City Council should be looking for ways to offload non-crime-related duties performed by police to other, more effective and less expensive staff.

They have just such an opportunity on the mental-health front. The Meadows Foundation has proposed an approach to mental-health first response that would put medical personnel on the front lines instead of armed police officers. A pilot program in Dallas implementing the idea found large reductions in arrests and use of force.

The Austin City Council should divert the resources proposed for those 30 new officers to fund a similar program in Austin.

Anyway, as a practical matter, it's doubtful Austin PD can fill 30 new positions, even if they are included in the budget. They are 102 officers short right now, a number which will grow to 125 by the end of the year due to normal retirement rates. Taking into account predictable attrition at the police academy (an average of 31% of recruits dropped out of the last five classes), plus the schedule supplied to the City Council for more recruit classes, it's pretty easy to calculate that APD will still have 75 vacancies, give or take, when budget season rolls around in 2020.

In other words, whether or not the City Council approve 30 new officers, the money will have no impact on staffing in the coming fiscal year.

By contrast, funding the mental-health crisis-intervention proposal with that money would reduce the demand for officers at the margins and avoid worsening the police-pension problem. That's definitely the smarter, and more fiscally responsible, approach.

No MSM coverage of this pension report so far, but IMO it's quite a big deal; it came out while Grits was on vacation last month. Long-time readers will recall that Ron DeLord, founder of the Combined Law Enforcement Associations of Texas and the lead negotiator of Austin's police contract, predicted in a Reasonably Suspicious podcast interview that cities would eventually reduce these lavish pension benefits. He argued that unions must prepare for the coming retrenchment. Those observations seem more prescient than ever, after reading this report.

Judges' 'unchecked power' to blame for high TX indigent defense caseloads

"Unchecked power" of and "conflict of interests" by local judges are the biggest barriers to reforming Texas' indigent defense system, reported Neena Satija, writing for the Texas Tribune and Texas Monthly. Go read the whole thing, excerpts won't do it justice.

Neena began this feature when working for the Trib, but was hired by the Washington Post in the meantime, so Grits had feared it might never come out. But it was worth the wait. Using Texas' database of attorney caseloads for defendants with appointed counsel, she explored how these high caseloads pressure attorneys to cut corners in ways that harm clients. She documented multiple instances of judges retaliating against defense attorneys for representing clients aggressively by refusing to appoint them in the future, or even handing off their cases to other lawyers.

Unstated in this story, but key to understanding the motivations at play: The two biggest sources of campaign contributions for local criminal-law judges are defense attorneys and the bail-bond industry. Lawyers give money hoping for appointments to cases and goodwill when they're in a judge's courtroom, while bail bondsmen want all sorts of little favors (like when judges make behind-the-scenes debt-forgiveness decisions about whether bond agents must pay up after someone absconds).

Two important justice reforms - creation of public defender offices and elimination of money bail - amount to indirect attacks on campaign contributions for judges. Without them, there is no incumbent advantage. That's the main, unspoken reason you see judges fighting both of those reforms.

For more background on the attorney-caseload issues at play in this story, see this interview with then-Texas-Fair-Defense-Project Executive Director Becky Bernhardt after the caseload recommendations came out in 2015.

To look up attorney caseloads in your own county, here's the link to the Texas Indigent Defense Commission database. No other state has data as good as Texas' on this topic, and Neena's story absolutely couldn't have been written without it.

Slavery, sugar, and the Texas prison system

Two New York Times articles published over the weekend deserve readers' attention for their illumination of racist history that informs many of the Texas topics covered on this blog.

First up, Bryan Stevenson has an excellent piece on the role of slavery in development of modern prison systems. While many authors have cited this history as the source of modern-day racial disparities, Stevenson focuses much more on slavery's contribution to Americans' acceptance of excessively harsh and dehumanizing punishments, including public torture and maiming of victims while white onlookers gathered in crowds eating deviled eggs and drinking lemonade.

Though not focused on Texas, Stevenson also described the convict leasing system common throughout the South that dominated Texas' prison system well into the 20th century.

In Texas and Louisiana, the story of convict leasing centered in large part around sugar, with the now-defunct Imperial Sugar in Sugar Land, Texas, the center of the industry in the Lone Star State. In Louisiana, we learn in another Times story titled, "The Barbaric History of Sugar in America," "Even today, incarcerated men harvest Angola’s cane, which is turned into syrup and sold on-site." The author argues that the modern American sugar obsession wasn't inevitable. Refined sugar would have remained a rare luxury product without the existence of a large, captive work force that could be coerced to perform labor which free men would never choose.

Every evil thing done to make sugar under slavery also happened on the Jim-Crow-era prison farms. The unmarked graves cropping up around the old Central-Unit property in Sugar Land are a testament to this dark legacy.

Serendipitously, on the most recent Reasonably Suspicious podcast, Michael Hall and I included a song in the Top Five Great American Prison Songs that speaks directly to the these sugar-plantation practices: "Ain't No Cane on the Brazos." I had never heard the original version before, and it's amazing. Give it a listen:

The song describes black prisoners cutting cane on the Brazos River from 1904 to 1910. At times this business was so deadly they'd run across bodies of fellow inmates on "every row," the song declared. (Some of those described are surely men whose corpses are being discovered now.) When cane couldn't be cut fast enough, according to the song, black women were brought in to work alongside the men. Every line is punctuated by mournful moaning in which the suffering in the cane fields is made heart breakingly palpable.

Indeed, this history was a big part of the reason Grits pushed for closing the Central Unit a few years ago. True, I'd like to close many more prisons, but there was a reason the Central Unit was targeted first. When the wind down took longer than expected, I wrote:
For my part, the Central Unit's economic role in the prison system's ag business was one of the reasons I favored it as a prime target for closure. Not only was Central's historic role symbolic, breaking it up would end some of the last remaining physical vestiges of the old convict leasing system, replaced to a lesser and far-less brutal extent in the modern era by in-house agricultural operations on the agency's vast real estate holdings. Grits isn't surprised it has taken longer than expected to untangle a century's worth of economic ties wrapped up in the Central Unit's operations, but I'm glad it's happening.
Certainly, one could point to stories (and songs) about inmates cutting down timber in the East Texas forests, or even picking cotton. But harvesting cane was especially deadly and unremittingly terrible. What happened at the prison units around Sugar Land was a human-rights tragedy of immense proportions, perpetrated with state government's profit-sharing cooperation and explicit stamp of approval.

Check out the two Times pieces linked above, they're describing important, seldom-discussed history with significant implications for the Lone Star State.

Friday, August 16, 2019

Additional Harris-DA staffing mustn't contribute to the 'low-rent arms race between prosecution and indigent defense' ... or, why Keri Blakinger is a journalism goddess

Now that Keri Blakinger exists, along with the Marshall Project, The Appeal, Google News feeds, and a variety of advocacy newsletters that weren't around before. Grits occasionally wonders if this blog still has much to offer.

Don't get me wrong. I know Keri existed before she showed up performing criminal justice coverage for the Houston Chronicle. I'm pretty sure I've read all she's written about her backstory. But her arrival on the scene in Texas was a game changer for journalism on criminal-justice topics, setting a new standard that's making politicians, journalists, and researchers of all stripes step up their game. In the last 30 years, I can't think of a reporter whose work has so significantly influenced the culture of Texas journalism.

The latest episode to make me consider her import involved Keri's coverage of a report from Texas Southern University's Center for Justice Research.

Normally, the findings of such a report would be promoted without comment by journalists of all stripes, first in the local newspaper, then on TV. Then, a few days later, it would fall to Grits to do all the "what abouts" and "isn't it true thats," which then may or may not be followed up on later if politicians or other stakeholders decide to press the point.

But Keri does this work right on the first pass. Amazing! What a breath of fresh air!

The biggest but not the only flaw in the report was that its top finding applied a standard of one prosecutor to 10,000 civilians to say Harris County needs 104 - prosecutors - magically, almost exactly how many District Attorney Kim Ogg asked for. Problem is, that one per 10k standard is completely made up!

The lead author of the TSU study backtracked, declaring, "the primary goal of the population analysis was to pick a baseline measurement for purposes of comparison, and that for the purposes of creating a ratio it didn’t matter if that standard was 'not adopted and not accepted.'" But for a standard that didn't matter, they leaned on it quite heavily: It's the top bullet point in their findings.

For the record, Grits is not among those, if they exist at all, who claims the Harris County DA's office has all the staff it needs. Rather, I believe 1) staffing increases should only be considered in the context of increases in indigent defense spending, where caseloads are also excessive, else the system become further imbalanced, 2) staffing increases should be targeted toward funding specific DA functions that reduce, not increase, incarceration (e.g., to manage diversion programming or expanding case screening at intake to include Class C misdemeanors), and 3) the office's decades-old structure of letting rookie prosecutors suffer high caseloads while more experienced lawyers supervise should be reconsidered from scratch. The office has been operated that way at least since Carol Vance's tenure; it's time to modernize. Funding an antiquated structure won't help.

This last point has been particularly under-considered. Jennifer Laurin at the UT-law school made the point in Keri's story that cross-agency comparisons don't consider differences in how agencies are staffed and what they do:
“There is sufficient variety in how jurisdictions staff cases, how they administratively count cases and how they structure workflow from police input to prosecutor decision-making that it is exceedingly difficult to compare,” Laurin said, after reviewing the document. “It might be that Harris County is not staffed at optimal levels but the comparisons the report provides in and of themselves do not provide evidence of that.” 
For instance, in some jurisdictions - such as Cook and Maricopa - the prosecutors’ offices represent the county in legal matters, a task taken on here by a separate entity, the Harris County Attorney’s Office.
For my money, it's possible and even likely the DA's office could use more staff. The same is true for indigent defense, and IMO those problems should be addressed simultaneously.

But Ogg proposed expanding her agency's attorney staff by nearly a third without identifying particular needs the new staff would solve. If she wants to make the case for more staff, take some of the office's asset forfeiture money and hire a consultant to identify new staffing that would contribute to reduced incarceration. Then the commissioners court will know what portions of the office's budget require expanded funding to achieve their decarceration goals, without simply aiding one side in the low-rent arms race between prosecution and indigent defense.

Cops make similar arguments to this report for more staffing all the time, complete with made-up staffing standards and fronting progressive goals while leaving lots of discretion to spend the money on regressive things. #cjreform activists, like myself, who distrust such broad grants of discretion, have simply been burned too often. If the problem is real, the request will survive (and IRL, be bolstered) by more research and specificity. What doesn't help is promoting a staffing standard somebody just pulled from their rear end.

It's breathtakingly awesome that Keri Blakinger exists and gets assigned to these stories. To me, her value has little to do with the fact that she's formerly incarcerated. I'm sure it adds something to the mix, but it's her skill set, work ethic, and tenacity that make her stand out. The fact that she essentially took over the Texas prison beat from a sycophantic senior reporter who just made stories up only heightens the contrast.

Grits for Breakfast is approaching the 10,000-post mark, and a huge proportion of those essentially add easily identifiable, counterfactual research to balance unsupported assertions published in MSM articles. I occasionally get mistaken for a reporter because that's a reporter's job, but not many of them do it. Keri does.

Indeed, the only problem with Keri Blakinger is that there is only one of her. If one or two more existed, your correspondent would have little to contribute here and could ride off into the sunset. But for now I'll remain a little longer; she is one of a kind.

Thursday, August 15, 2019

Podcast: Ranking the greatest American prison songs, a crowd-sourced exoneration out of Tyler, and other stories

Check out the August episode of the Reasonably Suspicious podcast. We've got a special treat this month, with Texas Monthly's Michael Hall stopping by to tell us about the latest innocence case he's been covering out of Tyler, and a special segment in which he and I rank the greatest American prison songs

Here's what's on tap this month:

Top Story: 
Hemp SNAFU led to de facto natural decrim experiment for marijuana in many counties.

Texas Monthly's Michael Hall tells the story of an actual innocence case out of Tyler that was broken open by a Michigan podcaster.

Scott and Michael Hall rank the greatest American prison songs. Go here for a YouTube playlist of all the songs we discussed, plus some from Scott's list that didn't make it into the podcast.

The Last Hurrah:
* DPS intel chief who warned of Mexican rapists arrested for sexual assault
* Texas House members create criminal-justice reform caucus
* Harris County bail lawsuit settled

As always, I've ordered a transcript of the podcast and will post it when it comes back.

Tuesday, August 13, 2019

Causes of rising Smith County jail population are knowable, but officials like the system ineffable

The Smith County Jail population is growing, reported the Tyler Morning Telegraph, and the main reason is that the county is disproportionately incarcerating pretrial in routine cases. The DA told the paper,  “Over the years we see that that number trends upward sometimes and trends downward sometimes. There’s nothing specific that’s causing it to be higher right now.”

But we do know a few things about why the jail is so full. Reported the Telegraph:
While Smith County has 0.8% of the state’s population, the county jail had 1.2% of the state’s county jail population in 2019. The trend is consistent among most types of crime. 
In July, the county had 1.8% of people accused of misdemeanors awaiting trial; 3.6% of people convicted of misdemeanors; 2% of people accused of state jail felonies awaiting trial, 3.3% of state jail felons sentenced to state jail, and 2.3% of convicted felons.
With 0.8% of the state's population and 1.8% of misdemeanants jailed pretrial, plus 2% of state jail defendants awaiting trial, Smith County is disproportionately incarcerating lower level defendants pretrial compared to other jurisdictions. That's a self-inflicted wound. A whopping 65% of inmates in the Smith County jail as of last month were incarcerated pretrial. That's the result of decisions by local elected officials in the judiciary and the DA's office, not just some random event.

Similarly, they're using county jail to incarcerate people as punishment for misdemeanors much more often than the rest of the state. Again, they have 0.8% of the state's population and 3.6% of Texas defendants jailed after misdemeanor convictions. That's 450% above the statewide rate! The number is small-ish (55), but the fact remains for multiple categories of defendants, Smith County officials are using incarceration much more frequently than the rest of Texas.

Some of the same solutions Grits recently recommended for Denton County would certainly be in order. But the problem in Smith County is worse.

Local reporters in Tyler interested in digging deeper should try to replicate Texas Appleseed's recent analysis of jail bookings to identify cohorts of prisoners who don't need to be locked up for public safety purposes. It's simply not true that the cause of rising jail populations in an era of declining crime is unknowable. It's just that they're not telling you.

Monday, August 12, 2019

Are Texas' prison population reductions significant?

On the Reasonably Suspicious podcast this month, my co-host Amanda Marzullo and I discuss Marie Gottschalk's article about Texas justice-reform efforts in the Baffler, in which she argued that Texas' decarceration reforms had been overstated and demonstrated the limits of left-right coalitions on #cjreform.

Since Grits had to look them up for our podcast conversation, let's record some data links here before I clear my browser tabs.

I largely agree with Gottschalk's assessment of Texas' progress, and have said much the same thing before. (Indeed, Grits was quoted in her article.) Moreover, her observations about the cognitive dissonance between the Texas Public Policy Foundation's Center for Effective Justice supporting state spending on mental health and drug treatment, while other parts of the organization oppose Medicaid expansion, are difficult to argue. (Check out the podcast, out this week, for that discussion.)

But there's an extent to which her complaint is overstated. Texas undeniably has made significant progress.

For example, the latest annual statistical report on the Texas corrections system (2018) is out. As of August 31, 2018, Texas' prison population  was at 145,018 - as as low as it's been in two decades, and down seven percent from a high of 156,126 in 2008.

But Texas' population has boomed over the intervening years, so the overall incarceration rate has declined. For example, in 1999, Texas had 149,684 prisoners. But the state's population back then was 20.4 million. By 2018, the state population was up to 28.7 million.

So, in 1999, Texas' incarceration rate per 100,000 people was 734; in 2018, it was 505. That's a 31 percent decline. From a number-of-people incarcerated standpoint, Texas' prisoner reduction happened mostly because the parole division reduced technical revocations and increased parole rates for lower risk inmates. But population growth is the bigger factor in lowering the rate.

Among reformers back in the '03-'07 period, none of us fantasized that what was later dubbed the "Texas model" would radically reduce the number of people incarcerated, especially after Governor Rick Perry vetoed the legislation in 2005, allowing only a weakened version to pass in '07. The goal was to stop the sharp upward curve, and to build momentum for future reforms.  And only the first part of that goal was achieved.

The reason I largely agree with Gottschalk's argument is that Texas hasn't really done anything since then on the decarceration front. We've been a leader on innocence, on forensics, and made strides on debtors-prison reform. But the only major decarceration measure that's passed since 2007 was the 2015 increase in property-theft thresholds. And that little-noticed item only passed as a Senate amendment to a House bill tacked on by Konni Burton; the legislation couldn't make it through the process on its own.

Crime has plummeted over the last 20 years, but prison populations in Texas were affected only a little.

As of 2019, decarceration progress in Texas has utterly stalled, while red states like Oklahoma and Utah have reduced drug possession to a misdemeanor and enacted decarceration reforms of which Texans can only dream.

So the Lone Star State has made more progress on prison decarceration than its harshest critics might grant. But it remains inarguable that there's much more to do. And the Texas Legislature, particularly the Texas Senate, has at this point relinquished all momentum toward further progress.

Monday, August 05, 2019

Harris County bail-reform settlement a landmark defeat of Texas bail-industry lobby

There once was a county named Harris 
Whose bail system left them embarrassed
Then judges were sued
And elections did lose
So now lo and behold they can settle this!

The bail settlement in Harris County may not be as important, when viewed through an historical lens, as Brown vs. Board of Education, despite Harris County Commissioner Rodney Ellis' grandiose declaration to that effect. But it's still a Very Big Deal, and the first domino to fall in what will ultimately conclude with a 5th Circuit (or US Supreme Court) decision governing pretrial release of criminal defendants in Texas.

Harris County judges have enacted a "new policy of automatic, no-cash pretrial release for about 85% of low-level defendants," reported the Texas Tribune

Art by Grits. Click to enlarge.
The settlement news warms the heart of this aging polemicist. Excessive pretrial detention in Houston was one of this blog's earliest hobby horses, presaging many of the debates which ended up resolved through federal litigation nearly a decade-and-a-half later. For example, check out a series of Grits posts on the topic rounded up in 2005 after the Harris Co. probation department began using them as training materials. Most of those critiques would remain salient until well after the just-settled litigation got serious, at which point the county began to implement more significant changes. At the time, though, there were 1,900 people sleeping on the jail floor due to overcrowding, so in a way, the issue was even more pressing back then.

Which is why it's worth recognizing that it took the federal courts to accomplish these changes that every expert who ever looked at Harris County's system had been advising for more than a decade. For whatever reason, whoever won elections, red or blue, there was never any appetite for serious bail reform through the political process. Someone had to sue, and win, to get judges to stop ordering bail for most misdemeanor defendants. (Many of the reasons for that are specific to Houston; your mileage may vary in other jurisdictions.)

Another notable point: At the commissioners court, as at the Texas Legislature, bail bondsmen found champions but could not sustain a majority after an informed debate. That's my big takeaway from those two, recent bail fights, one where reformers lost and one where they prevailed: At both the state and local level, bail bondsmen have shown they can be beaten. They had an impressive track record before this year, and the first half of 2019 may have finally demonstrated some chinks in their armor.

Here's why I disagree with Rodney Ellis that this litigation settlement is as important as Brown vs. Board of Education: While it resolves the underlying issues, it also robbed the 5th Circuit (and/or SCOTUS) of the opportunity to set a baseline that applied to all Texas, Louisiana, and Mississippi jurisdictions. Instead, the settlement terms only apply to Harris County and at most are advisory recommendations everywhere else.

So it will be some other county currently being sued - probably Dallas, I'm told by attorneys involved in the litigation - which ends up setting binding precedent for Texas courts, particularly with regard to setting bail in felony cases.

Once that happens, the Texas Legislature will be in a much better position to know what bail-reform legislation should look like when they come back in 2021.

Friday, August 02, 2019