An awkward death row moment, judges with PTSD, 'incompetent scientists using bad science,' and other stories

Your correspondent has been away from the blog for most of the week, but here are a few odds and ends that merit Grits readers attention while mine is focused elsewhere:

An awkward death-row moment
TFW you find out the guy you're about to execute tonight may confess to a murder you want to execute a guy for a month from now. Awkward! Death row inmates are held in solitary confinement, so the union for prison guards has alleged that, if the two men conspired and even passed documents between their cells, as prosecutors allege, they were able to do so because of understaffing at Texas prisons. Certainly, this is more reason for courts to allow DNA testing in Swearingen's case - which the Court of Criminal Appeals recently denied - to make sure they're executing the right guy.

Texas senators and #cjreform
Texas Senator John Cornyn cited Texas' decarceration reforms in touting a new federal sentencing reform package. And our two senators both sit on the Senate Judiciary Committee, meaning they'll have outsized voices in debates over bipartisan asset forfeiture reform amendments recently voted out of the US House. Go here to send Texas senators an email asking them to support asset-forfeiture reform.

Time to ditch Harris County criminal courts building?
A Houston attorney makes the case for scrapping the Harris County Criminal Justice Center after Hurricane Harvey flooding and starting over.

Racial disparities in juvie incarceration
Texas' racial disparities among incarcerated youth (4.4:1, black to white) aren't the worst in the country, but they're nothing to write home about, either.

'Incompetent scientists using bad science'
The Austin crime lab's DNA screwups extended to capital cases, and the Court of Criminal Appeals has ordered a habeas investigation to determine if the lab generated false or misleading evidence that was used at trial. A defense attorney with the Office of Capital and Forensic Writs criticized "forensic evidence developed by incompetent scientists using bad science."

Judges, advocates require self care
Judges say they experience secondary traumatic stress from the awful stories they encounter at their jobs. The same could be said for prosecutors and defense attorneys, and for that matter, in many cases, reform advocates. Most of the innocence cases I've seen involved terrible, hair raising dramas which can be truly haunting. The stories don't leave you. Your correspondent can barely read jail mail anymore without a panic attack after more than two decades of advocacy in this area; the constant stream of tragedy and unmet need becomes overwhelming.

When judges cherrypick facts
News flash: SCOTUS Justices frequently cherrypick facts that are sometimes flat-out wrong and are never held accountable. You're shocked, I know, to learn that judges might pick facts to support a pre-conceived opinion rather than derive their opinions from the facts. Except, oh wait, Grits readers are aware of the Government-Always-Wins faction at the Texas Court of Criminal Appeals, so for y'all this sort of outcome-oriented judging has likely already become apparent.

So if you can't execute the developmentally disabled, what do you do with them?
The Moore case out of SCOTUS earlier this year limiting executions for the developmentally disabled is calling into question at least ten additional Texas death cases, including five from Harris County. The case overturned the Texas Court of Criminal Appeals notorious Briseno decision, an outcome-oriented ruling which applied outdated scientific standards to uphold dubious death sentences. (See above re: cherrypicking facts.)

Mass incarceration costs US economy $1 trillion
The annual cost of incarceration totals more than $1 trillion, according to a new analysis, or more than 6 percent of Gross Domestic Product. Notably, according to one of the researchers, “More than half of the costs are borne by families, children and community members who have committed no crime.”

Bogus diagnosis?
Excited delirium: Legitimate medical diagnosis or coverup vehicle for in-custody deaths caused by police? See related Grits coverage.

What's causing overdoses: opiods or ignorance?
Some doctors are starting to push back on the prescriptions-caused-the-opiod-crisis narrative that's been prevalent lately, and Scientific American has perhaps the best rendition of their argument I've seen.

'The Myth of the Progressive Prosecutor'

Josie Duffy Rice has a solid piece in the NY Times on "the myth of the progressive prosecutor." Grits agrees with much of what she says, with one caveat: To me, the problem isn't the hypocrisy of a Cyrus Vance or a Kim Ogg but that the fundamental job of the prosecutor is based on regressive values, attitudes and approaches.

The day-to-day tasks of the prosecutor's job contribute to a myopic worldview that is emotionally victim-centric and economically regressive, regardless of the ideology-upon-entry of this or that District Attorney at the top of a local system. A victim-centric worldview isn't inherently bad, but the prosecutor's version too often fails to recognize that victims and criminals frequently turn out to be the same people, with the differences in characterization mostly temporal and situational. That's why, for example, defense attorneys present mitigation evidence to juries at capital murder trials that more often than not these days dissuade them from a death sentence: Human beings ultimately are defined by the totality of their experiences, not their single worst bad act. But in the prosecutor's world, that one bad act is everything - if they can make the case that the defendant's behavior fits the details from the statute describing a crime, their job is done.

That's the reason that, at DA offices, management changes, but the day-to-day operations remain much the same as they functioned when our grandparents ran much-smaller versions several decades ago. Any differences between electeds play out at the margins of just a handful of individual cases. But the overarching structure and purpose of the institution inevitably remains undisturbed. Even when DAs take a progressive step, there are almost always pragmatic, internal reasons for it.

That's not to say it wouldn't be possible for a DA to fundamentally redefine the job. They have enough discretion to where all sorts of interesting possibilities might present themselves if smart people put their minds to it - IMO, restorative justice approaches likely offer the best opportunity to re-imagine the position in a way that lets them retain their victim-centric approach.

But Josie's right that that's not the mentality of the so-called progressive prosecutors being elected so far. Instead, they have mostly stuck to rolling back the most over-the-top tuff-on-crime policies but haven't really challenged the assumptions underlying the day-to-day activities their employees perform at their jobs. The reason, though, IMO, is not a lack of nerve nor moral fortitude, but more fundamentally a failure of imagination.

RELATED: Here's a good, recent analysis out of Stanford on "The Problems with Prosecutors." SEE ALSO: Why are prosecutors putting innocent witnesses in jail?

Bashing civilian review, crappy counsel in death penalty appeals, and other stories

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

Civilian review in Austin brings no reform
See a report that the missus prepared for the Texas Criminal Justice Coalition detailing recommendations by Austin's civilian review board which were never implemented by the local police department. Michael Barajas at the Texas Observer covered the story of Austin activists seeking to overturn the local police labor agreement in order to abolish this toothless entity. RELATED: Check out Campaign Zero cofounder Sam Sinyangwe's presentation to the Austin Justice Coalition on why Austin PD's contract is one of the worst, accountability-wise, in the nation.

'When cash bail violates the Constitution'

This op ed included a notable quote from Judge Lee Rosenthal's opinion, “For misdemeanor defendants unable to pay secured money bail, Harris County maintains a ‘sentence first, conviction after’ system that pressures misdemeanor defendants to plead guilty … because that is the only way to secure timely release from detention.”

Crappy counsel in death penalty appeals
Ever since the 2016 Texas Defender Service report (see an interview with the author) on the poor quality of direct appeals in capital cases, the issue of ineffective assistance keeps cropping up in ways that make me shocked the state tries to execute people whose defense was as shoddy as is often the case. Check out this ruling from a federal District Judge this spring finding that attorney Ken McLean was ineffective in representing capital defendant Travis Green. Indeed, the judge suggested McLean misled the court about whether he'd investigated his client's mental health history:

Troublingly, Mr. McLean states in his Statement of Counsel that he had "reviewed Mr. Green's most recent mental health examination dated May 17, 2007, at the Jester IV Unit. There is no indication in those records that Mr. Green is mentally ill or incompetent." (Id.) Yet a review of the mental health examination cited by Mr. McLean immediately reveals the falsity of this statement. On the first page of a "Mental Health Inpatient Psychosocial Evaluation," taken on May 17, 2007, in Jester IV, Mr. Green is diagnosed with schizoaffective disorder. (Doc. No. 30-3 at 2.) Also on the first page, the report indicates that, when Mr. Green was asked to summarize his clinical complaint, he stated that he needed "someone to take this locator out of my head. The FBI put it in my brain sometime [sic] ago. Now I have headaches all the time." (Id.) The next page reports that Mr. Green received mental health treatment in the "free world" before he was sent to death row, and had received mental health treatment while incarcerated. (Id.) It also states: "[Mr. Green] has a history of suicide attempts and self-mutilation" and "has been diagnosed with Delusional Disorder, Schizophrenia, Paranoid Type, Polysubstance Dependence, and Antisocial Personality Disorder." (Id.) At the time of the report, Mr. Green was taking Haldol, an antipsychotic drug. (Id.) The report cited by Mr. McLean was replete with evidence of current, longstanding mental illness. This directly contradicts the assertion made by Mr. McLean and raises questions as to the veracity of his contention of having reviewed the record.  H/T: HAT.

Debtors prison reform news
Debtors prison policies in South Carolina: "Defendants in such cases are typically offered a choice between a $250 fine, which Mr. Marsh cannot afford, or 30 days in jail. Jailing Mr. Marsh costs the city $1,650 a month." In a landmark suit in Tennessee, a federal judge recently ordered reinstatement of two people's driver's licenses, resulting from a class action lawsuit challenging the state's practice of suspending licenses for unpaid traffic fines.

Why community corrections fail
Here's a good analysis of why community corrections fail. Part of the problem is that they want to keep "good" probationers under supervision because they pay fees, much like the Louisiana Sheriff who wants to keep incarcerating the "good" prisoners because they do all the work in the jail.

Police union criticisms warranted, but suggestions off base

While Grits remains sympathetic to activists like Paul Butler who're frustrated at the ability of police unions like the Federation of Police to thwart accountability reforms, I don't find his proposed solutions particularly viable or useful.

Because labor unions are associations of free individuals under the First Amendment, I consider Butler's suggestion that "Congress as well as state and local lawmakers should convene hearings" to investigate them over political disagreements reprehensible. One mustn't adopt McCarthyite tactics just because one's opponent behaves reprehensibly. Those 1A rules protect all of us.

And while I'm not averse to the notion that "civil rights organizations like the NAACP and the ACLU should target the FOP as a barrier to police accountability," that's a tactical, situational decision, not a general principle. Plus, it's unclear what he means by "targeting" them. For criticism? Who cares? For disbandment? Not realistic. So to what end are they being targeted? Only after answering that question can one tell if it's a good idea.

There are portions of Butler's column in which it appears he makes no distinction between unions and other law enforcement actors. For example:

Some might believe that the FOP’s behavior and agenda are functions of its role as an organization that advocates for police, but the example of other police organizations suggests that’s not the case. 

The Major Cities Police Chief’s organization supported the Obama policing commission’s recommendations while the FOP advisory included "de-prioritizing" "some or all" of them. The FOP is known for defending just about any officer involved in the high-profile killing of a black man while the leadership of NOBLE, the National Organization of Black Law Enforcement Executives, continually calls for police reform in response to such events.

Butler appears to not understand in this passage the differences between the vested interests of police unions and management, conflating them to make the FOP look more like an outlier than they are. Compared to Texas' big police unions, FOP's stances are pretty typical.

One of the anomalies of 21st century police accountability activism is that it requires what has mostly been a movement based out of the Left to advocate against police unions on behalf of management interests, primarily because police managers are the only people empowered to discipline or fire bad officers. So it's not surprising that the management interests Butler cited embrace views more amenable to reformers. Advocates who are more sensitive to these dynamics than Prof. Butler may discover allies to help marginalize the FOP and other police unions that are pushing regressive policy agendas. At a minimum, that's a more realistic goal than simply declaring "the FOP must go."

Butler's last recommendation revealed the former federal prosecutor to be a naif: "Finally, individual officers of conscience, and departments with a will to police democratically, should divest from the FOP. A mass resignation from the FOP by officers of color and their white allies would send the strongest message that an old boy network of Trump supporters does not represent the modern face of law enforcement."

That will not happen because officers' interests in their contracts are more meaningful to them than abstract criticisms from activists outside the profession. Plus, even if they went to other unions, it wouldn't matter. In Texas, the FOP hardly represents any officers by comparison to the two largest groups - the Combined Law Enforcement Associations of Texas and the Texas Municipal Police Association. But those groups are as regressive and anti-reform as is the FOP where it is prominent. Frequently, the rank and file are more radical and aggressive than union management. Such behavior is not a bug among police unions, it is a feature.

On the whole, IMO reformers at Campaign Zero have suggested a much more realistic approach toward police unions, focusing on the desired outcomes vis a vis policies and contracts instead of simply opposing a group that isn't going anywhere anytime soon.

How's the weather?

Two recent weather related stories deserve Grits readers attention: The Marshall Project this week offered excellent coverage of Texas' prison heat litigation in a joint project with the Weather Channel, while The Nation covered the issue of prisoners stranded during the recent Hurricane Harvey floods.

Guard tower at TDCJ prison in Rosharon Nation/AP

We knew that federal prisoners in Beaumont had lived through flooded conditions. But notably, The Nation story alleged that TDCJ prisoners at the Gist, LeBlanc, and Stiles Units were subjected to extreme conditions: "Water in some cells was knee-high, and toilets were overflowing with feces and urine. Inmates described suffering from heat, dehydration, hunger, mold, and being unable to communicate with anxious family members on the outside." Grits had not previously seen flooding reports from those units and, during our last podcast, had credited TDCJ for moving prisoners in other units which flooded. But the second wave of flooding around Beaumont/Port Arthur may have caught them off guard.

National Lawyers Guild attorneys suing over the conditions say reports from nearly 100 inmates corroborated the allegations, but TDCJ categorically denied them, declaring that "Stiles did not flood, and the inmates in all three TDCJ units were given sufficient water, food, and access to toilets." So there's some fact finding to be done. TDCJ inmates don't have access to email like in federal prisons, so it's more difficult for their stories to get out.

Declared one of the NLG attorneys, "We know these storms are going to become more and more frequent. If the plan is that every time there is a severe weather event people just don’t get food and water for a few weeks, and live in cages with their own excrement, that’s not an okay plan.”

False confessions, coercive interrogations, hardly a new problem

Not a Texas topic, but until this NY Times obituary, I'd never heard the story of how the late, great Connie Hawkins - an ABA, Globetrotter, and NBA star in the '60s and '70s - was banned from pro ball in his prime based on false and unproven allegations of game fixing. Hall-of-fame coach Larry Brown has said of Hawkins, “He was Julius before Julius, he was Elgin before Elgin, he was Michael before Michael.” But to the criminal justice system, he was none of those things. He was a suspect in a game fixing scandal, so he got the same treatment as every other young black suspected criminal might have received in the 1960s. (Shudder)

As has been the case with so many modern exoneration stories, his problems arose from the use of coercive interrogation tactics, and his name was cleared thanks to an exceptional act of journalism:

Hawkins’s path to the N.B.A. was buoyed in part by a 1969 article in Life magazine by David Wolf. “Evidence recently uncovered,” Mr. Wolf wrote, “indicates that Connie Hawkins never knowingly associated with gamblers, that he never introduced a player to a fixer, and that the only damaging statements about his involvement were made by Hawkins himself — as a terrified, semiliterate teenager who thought he’d go to jail unless he said what the D.A.’s detectives pressed him to say.”

This sort of coercive questioning of vulnerable suspects matches the story of dozens of documented false convictions from the DNA era. It's a brand of interrogation nearly unique to American law enforcement known as the Reid technique (see here, here, here, here, and here), which earlier this year was finally abandoned by the company that had originated and popularized it.

Because interrogations happen in secret - meaning abusive tactics taught by the Reid method were almost never documented (particularly in the 1960s before recording equipment was cheap and common), much less made public and rectified - they also represent thousands of additional false convictions we'll never know about. Thanks his basketball skills, however, Hawkins' case received greater attention:

On Hawkins’s behalf, Roslyn Litman, a civil liberties activist, along with her husband and law partner, S. David Litman, and another lawyer, Howard Specter, sued the N.B.A. on antitrust grounds, arguing that the league had in effect illegally banned Hawkins and deprived him of the “opportunity to earn a livelihood.” 

They won. The league paid Hawkins a settlement of nearly $1.3 million and dropped the ban. Hawkins joined the N.B.A. in 1969 and became an instant star with the Suns.

To recap: 50+ years ago a black kid was questioned intensely by authorities without an attorney, and like so many others before and after him, he told them what they wanted to hear. He didn't do so because he was guilty, just to get out of the room and make the pressure relent. But it was a false confession which matched no other evidence the investigators had uncovered, so in this case he was never prosecuted. Still, the professional damage lingered for a decade. And others similarly situated likely suffered their fates in silent ignominy, with no obituary featured in the Grey Lady to set the record straight on history's behalf.

These are not new problems, for the most part; the broader public has only become newly aware of them.

Roundup: Justice delayed after Harvey, ICE raids focused on non-criminals, and other stories

Here are a few odds and ends on a beautiful Saturday morning that merit Grits readers' attention:

• The Dallas News published a good primer on bail reform issues with lots of links. See also new coverage of the Harris County bail lawsuit from the Texas Observer.
• After supporters of Attorney General Ken Paxton tried to stop payments to the special prosecutors on his case, I suppose turnabout is fair play. Now that the Court of Criminal Appeals has backed prosecutors in the pay dispute, those prosecutors are looking at donations to Paxton's own legal defense fund.
• Everyone concerned with abolition of the Driver Responsibility Surcharge should read this.
• How did Hurricane Harvey affect the justice system in Houston? One word: Delays. Especially bad news for misdemeanor defendants.
• Contrary to their initial PR blast, ICE raids in Austin earlier this year did not involve any "egregious" cases of criminal immigrants, instead focusing on non-criminals. Emails recently uncovered via FOIA show top brass were disappointed.
• I'd linked to it in an earlier roundup, but Grits keeps thinking about this story of alleged police misconduct out of Dallas and how many others go undiscovered because media don't have the resources to apply to the story that Cary Aspinwall was allowed to expend on this one.

Declines in TX recidivism led by parole success

Texas' recidivism rates are declining, according to this publication from the Council of State Governments Justice Center. According to them, parole revocations are down 33 percent since 2007, re-incarceration rates are down 25 percent, and rearrest rates are down 6 percent.

Reduced parole revocations are clearly the biggest success (and account for a big chunk of the decline in re-incarceration, as well). The document attributes those reductions to Texas' landmark legislation in 2007 which "Enhanced the use of parole for people at a low risk of reoffending and expanded the capacity of treatment and diversion programs," and "Expanded the capacity of substance use treatment programs and the use of intermediate sanction facilities to divert people from prison."

By contrast, probation revocations remained high. That same 2007 legislation included grants which were supposed to "Incentiviz[e] counties to create progressive sanctioning models for effective responses on probation." Some supposedly did, but unlike on the parole side, it didn't result in reduced revocations. Grits believes that's in part because the grants weren't structured to reduce if the desired outcomes weren't achieved. They just became part of probation departments' baseline funding, not an "incentive" to change behavior.

If Texas could figure out how to reduce probation revocations to the same extent we have for parole, we could close quite a few more prisons and save taxpayers a small fortune.

RELATED: See Texas' official recidivism data from the Legislative Budget Board.

Turns out drug war did contribute significantly to mass incarceration

A new quantitative analysis with cool graphical representations, to me, puts the final nails in the coffin of some of the interesting-but-problematic theories being touted in the past couple of years by Fordham law professor John Pfaff.

When Pfaff began promoting his revisionist counter-narratives on the causes of mass incarceration, it took Grits a while to figure out what was wrong with his analysis. But by the time his book was published, I was able to articulate it in this review, rebutting the trends he claimed to spot using Texas data. Now, we have a national analysis showing the same problems with Pfaff's suppositions, exposing flaws with his recommendations for reform.

Pfaff basically staked out two claims that he believed debunked the approach most experienced reformers were taking toward reducing incarceration: He believed the drug war is an insignificant contributor to mass incarceration, mocking Michelle Alexander and other critics who had claimed the drug war was central to its rise. And he poo pooed the effects of increased sentence lengths, pointing out that average sentence lengths were going down.

These were obfuscations, in the end, and both wrong. It turned out, growth in very long sentences for one group in particular - murderers and other serious violent offenders - contributed significantly to mass incarceration. By looking at averages, pooling a small number of violent offenders with large numbers of nonviolent ones, most of whom had relatively short sentences, Pfaff's analysis masked variation by offense.

The above-linked analysis used a neat graphical trick to show Pfaff was wrong to belittle the drug war's contributions to mass incarceration. The author depicted incarceration with graphic rectangles, using the number of prison admissions as the height and length of stay in years as the width. Viewed thusly, it's easy to see that the drug war was a big (but not the only) contributor:

As the author describes it: "Most of the vertical growth — the growth in admissions — was in “public order/other” and “drug” offenses ... But those offenses apparently had short prison terms that didn’t get much longer, so they didn’t contribute as much to area growth — the growth in the incarceration rate."

That's exactly right. Corrections data are dynamic and dependent. You cannot look at any one trend in isolation, ever, which is why Chicken Little reactions to one or two years of increasing murder rates are generally misplaced. There are multiple causes of mass incarceration, and two of them are 1) increased nonviolent prison admissions and 2) increased sentence lengths for violent offenders, especially super-long sentences for murderers, which have contributed to the growth in prison units that look more like geriatric wards.

Certainly, there were portions of Pfaff's analysis Grits found useful. I've praised his suggestion for a cap and trade proposal. And his call for the feds to pick up costs for local indigent defense was spot on. (Texas counties complain rising indigent defense costs are an unfunded mandate from the state, but really they're an unfunded mandate from the Sixth Amendment to the US Constitution.)

Further, Pfaff's observations about prosecutors' contributions to mass incarceration - doubling the number of convictions per arrest as the number of crimes and arrests declined - hold true for Texas as well and is an important contribution to our understanding of mass incarceration. (This blog had revealed a similar pattern among Texas prosecutors back in 2013.) But it does not then follow, as Pfaff's book suggests, that the only viable reform approach must focus primarily on prosecutors. Because of the diffuse structure of the justice system, reformers don't have leverage points which can affect their discretion in that way.

That's why, as I'd said in Grits' review, "one can follow Prof. Pfaff's logic all the way to the end and, while much of it is thought provoking, still find it to be of little use to reformers seeking change on the front lines in the states, which is where he rightly insists the real action of criminal-justice reform takes place." Rather, "at the end of the day, he's just wrong about where the American criminal-justice reform movement should focus and why." We must confront the problem of too-long sentences. And we must roll back the drug war.

In favor of an independent crime lab for Austin

Grits contributing writer Jennifer Laurin made the case today in the Austin Statesman that Austin PD should spin off its crime lab as an independent entity like Houston did.

That was a central recommendation of the 2009 National Academy of Sciences report and is long overdue. After the fiasco with their DNA lab, you'd think APD would be anxious to take the crime lab off their plate.

Why an innocent person would plea bargain

The Atlantic has a good roundup of US Supreme Court cases related to criminal justice coming up in the term which just began, and Grits was interested to note Class v. United States (see the SCOTUSBlog preview), in which "the justices will ponder an unusual legal question: If a defendant pleads guilty to a crime, does he or she lose the right to challenge that crime’s constitutionality?"

In an era when 97% or so of criminal cases end in plea bargains, this is a significant question.

In Texas the issue of whether challenges to a conviction may arise from a guilty plea in state court arose in Ex Parte Tuley, a case decided in 2002 and which your correspondent hadn't considered in many years. The Tuley case challenged a conviction in which the defendant was in fact actually innocent, but pled guilty to avoid a much harsher sentence in the face of false accusations of sexual abuse by a child victim. The final ruling included a wonderful passage written by then Court of Criminal Appeals Judge Tom Price:

I think it is colossal hypocrisy to exclaim, “we are shocked, positively shocked,” that a person who has pleaded guilty pursuant to a negotiated plea bargain would never do so unless he were truly guilty and believed himself guilty. Who are we kidding? It is true that Mr. Tuley did sign and swear to a form stipulation that “the following facts [tracking the indictment allegations] are true and correct and constitute the evidence in this case.” He, of course, did not design the form. It is certainly accurate to say that there was some evidence already admitted in the original trial that would support a finding that the indictment allegations were true. 

It is also true that the trial judge asked the magic question:  “Are you pleading guilty because you are in fact guilty and for no other reason?” and applicant responded:  “Yes, ma‘am.” Does this make him a perjurer? A self-admitted liar? 

Suppose Mr. Tuley had been given a dose of truth serum. Now, in response to the magic question, he responds: 

Your Honor, I do not believe that I am guilty. In fact, I know that I am not guilty.   However, the present jury is deadlocked. Some of those jurors may believe that I am not guilty, but others obviously differ. A different jury could conceivably find me guilty and sentence me to life in prison. That is a very serious risk to me. Furthermore, I do not have enough money to pay my lawyer for conducting a second trial. I am worried that I might have to go to jail just to be entitled to an appointed lawyer for a second trial. I have a job. I would lose my job if I had to go to jail for months waiting for a second trial. Quite frankly, I am out of money and out of time. I just want to go home. The State has made a very attractive offer of ten years deferred adjudication. This is an offer I cannot refuse, given the obvious risks I face if I continue to maintain my innocence and insist upon a second trial. So, even though I am innocent of this charge, I want to plead guilty because I am making a fully informed, free, voluntary and rational choice among the alternative courses of action available to me. 

The trial judge, hearing this unusual response, is likely to say something along the lines of: 

How can you expect me to accept your plea of guilty? This is a very serious offense and it carries a potential life sentence if you should violate the terms of your community service. How can you expect me to accept a guilty plea to the first degree offense of aggravated sexual assault of a child if you say you are not guilty, but you want to plead guilty anyway? And besides, I heard the same evidence that the jury heard and I am not fully persuaded that the evidence is sufficient to support a conviction beyond a reasonable doubt. I refuse to accept your guilty plea and we will set this case for another trial. 

Mr. Tuley, then, is likely to say: 

Judge, whose side are you on?   Are you on my side? I just want to plead guilty.   I didn't do it. I know that, but I also know that the prosecution has a child complainant who says that I did. I have a drug problem and a jury is likely to hold that against me, and, frankly, I look dishonest. Nobody is going to believe me. Now, do me a favor and let me plead guilty and get my ten years deferred. This is a good deal. I want to take it. Don't stand in my way. 

But an honorable trial judge might reasonably respond: 

But, if you're not guilty, I cannot take your guilty plea. I am worried about this man pleading guilty to something he is not guilty of. That is just wrong, and I can't allow that kind of an injustice to take place in my court. 

Mr. Tuley's honest reaction might well be:  “Don't be my friend. With friends like you, who needs enemies?” Instead, Mr. Tuley's lawyer would probably yank him off to the corner and after a certain whispering back and forth, Mr. Tuley will see the light He will now respond appropriately to the magic question:  “Are you pleading guilty because you are guilty and for no other reason?” with the right answer:  “Yes, ma‘am.”

Criminal justice system needs nudge toward nudging

We live in the age of the "nudge." But the criminal justice system has been slow to adopt cutting edge strategies being widely touted in the business community to influence human behavior.

As such, Grits enjoyed this article on incentives vs. punishments (mostly aimed at workplace behaviors, not criminality), and in particular liked this summary of the problems with punishment. The author isn't talking about the justice system, but the applications remain relevant:

There are several reasons that punishment might not be the best way to alter someone’s behavior. 

First of all, [B.F.] Skinner observed that the power of punishment to suppress behavior usually disappears when the threat of punishment is removed. Indeed, we all refrain from using social networks during work hours, when we know our boss is around, and we similarly adhere to the speed limit when we know we are being watched by a police patrol. 

Second, punishment often triggers a fight-or-flight response and renders us aggressive. When punished, we seek to flee from further punishment, and when the escape is blocked, we may become aggressive. This punishment-aggression link may also explain why abusing parents come from abusing families themselves. 

Third, punishment inhibits the ability to learn new and better responses. Punishment leads to a variety of responses — such as escape, aggression, and learned helplessness — none of which aid in the subject’s learning process. Punishment also fails to show subjects what exactly they must do and instead focuses on what not to do. This is why environments that forgive failure are so important in the learning process. 

Finally, punishment is often applied unequally. We are ruled by bias in our assessment of who deserves to be punished. We scold boys more often than girls, physically punish grade-schoolers more often than adults, and control members of racial minorities more often (and more harshly) than whites.

The justice system relies nearly entirely on punishment as motivation for good behavior, while cops, prosecutors and judges spend little time considering incentives for doing right beyond, "if you do, we'll eventually stop harming you." But there is clearly room for more incentive-based approaches:

In August's Reasonably Suspicious podcast, we discussed potential changes to incentives affecting government actors to help reduce mass incarceration: In that case, the incentives in need of adjustment were the economics of who pays to incarcerate vs. the politics of who makes the decision to incarcerate. For local decision makers, sending someone to prison is "free" and makes them someone else's problem, while keeping them on supervision in the community requires local actors to manage them. So we talked about a "cap and trade" system that would put limits on how much incarceration each jurisdiction could use and cause over-incarcerating outlier jurisdictions to purchase "extra" bed years from those incarcerating at lower rates.

But the discussion of incentives also reaches to the level of the individual offender. The much-vaunted HOPE probation program, first piloted in Hawaii, changed incentives by more closely monitoring probationers and punishing violations with more speed and certainty, but at lower levels. Such strong probation typically lasts for shorter periods and offenders can earn their way off supervision through good behavior.

Incentives extend to the actions of police officers. For example, Texas judges found that a juries in Houston for several years frequently acquitted DWI defendants because a Houston police officer on their DWI task force made numerous questionable arrests based on incentives in their union contract that paid him extra for overtime spent testifying in court. The problem became so acute the officer had to be reassigned. (Judges on an intermediate court of appeals said lawyers who didn't raise the issue were ineffective, but the Court of Criminal Appeals ultimately disagreed, taking the attorney's word for it that his deficiencies stemmed from strategy, not lameness.)

There are dozens more such small incentives embedded throughout the system that distort the process in big ways. For example, indigent defendants who can't make bail face strong incentives to cut a plea deal to get out of jail, especially when they're charged with a misdemeanor or low-level felonies and could get out with time served by pleading out. That incentive is so strong it has driven actually innocent defendants to plead guilty by the hundreds when they were falsely accused of drug possession by faulty field tests used by Houston PD.

Grits could go on and on. At every level, nearly every actor in the system faces skewed incentives that in important ways thwart best outcomes. In an era when we've reached the limits of the public's willingness to pay for more punishment in the form of mass incarceration, lavish pay and benefits for law enforcement, etc., the idea of using incentives and nudges to achieve some of the same goals  makes tons of sense.

Readers,  please leave examples in the comments of other counterproductive incentives peppered throughout the justice system. This post has surely barely scratched the surface.

Oral arguments at 5th Circuit Tuesday on Harris County bail reform case

Grits had half a mind to drive over to New Orleans today to hear oral arguments in the Harris County bail case tomorrow at the federal 5th Circuit Court of Appeals, but work and family responsibilities intervened. Regardless, I'm excited that the plaintiffs have reached this point. Good luck to our friends at Civil Rights Corps, the Texas Fair Defense Project, as well as Neal Manne and his colleagues at Susman Godfrey who've worked on this case.

The Texas Tribune had a good preview, and we discussed it in the Top Stories segment of the latest Reasonably Suspicious podcast. For more background (and excellent reading, for the genre), see District Judge Lee Rosenthal's order. See also a study from A&M evaluating the use of risk assessments to make decisions about pretrial detention.

MORE: See initial coverage from the Houston Chronicle. And from the Texas Tribune. And from the Huffington Post. And from the Houston Press.

AND MORE: See a press release from the plaintiffs following oral arguments.

Theory and praxis: use of force, deaths in custody

Here are a few odds and ends which merit Grits readers' attention this morning:

• Read this excellent investigative story by Cary Aspinwall at the Dallas Morning News, tracking a nebulous tip to discover an apparent incident of police misconduct involving a wrongful death. Law enforcement would go a long way toward building public trust if, in such situations, they prioritized transparency over CYA tactics.
• The Houston Chronicle has the story of a deadly no-knock SWAT raid in which a man who wasn't the target of the warrant was killed. Law enforcement accounts of the incident differ from those of the surviving residents.
• Grits enjoyed this back-and-forth discussion on the Heritage Foundation's recent report on policing. Related.
• Fivethirtyeight.com places rising murder rates in 2015 and 2016 in context.
• Added to the to-read list: "Reforming the Law on Police Use of Deadly Force: De-escalation, Pre-Seizure Conduct, and Imperfect Self Defense."

John Oliver takes on forensic follies

Great stuff from John Oliver on HBO regarding flawed forensic science last night. Especially appreciated the shout out (at the 12:40 mark) for Texas' junk science writ!

Support from leadership needed to get rid of Driver Responsibility Surcharge

The Republican House Speaker from Michigan is pushing to get rid of that state's version of the Orwellian-named Driver Responsibility Surcharge. Here's a quote from one of the bill's supporters which could easily have come from critics of the program in Texas:

As a prosecutor in Genesee County, I saw every day the awful impact these unfair fees had on Michigan families. ... Far too many working people who received a ticket and paid their fine were hit with new, impossible surcharges, often costing them their licenses, and then their jobs, and then their ability to ever pay off the mountain of debt. These are good people who just want to get to work and drive to school to pick up their children. They want to do the right thing, but the government has them trapped in a cycle of failure from which they can never escape. That is not right, and it is well past time we repealed this unjust mistake.

I've always believed that if any of Texas' Big 3 legislative leadership took this on - the Speaker, the Lt. Governor, or the Governor - abolition could happen pretty quickly. Without such leadership, though, abolition keeps getting hung up in "the pay for," as the missus refers to it, and repeal bills keep dying session after session.

Grits doesn't know what it would take to get one or more of those three interested in repealing these surcharges. The idea has gained little momentum at the Lege despite quite a bit of bipartisan support for jettisoning the program. That's mainly because the hospitals don't want to give up a lucrative revenue stream, even if the program suffers from profound and well-known dysfunction.

Perhaps Michigan's example will spur interest among Texas' rulers where the pleas of their constituents did not.

The Case of the Sleeping Gatekeepers, or Bolstering Daubert

Over the past several years - really since the lead-up to the National Academy of Sciences 2009 study of forensics - Grits has been giving increasing thought to the failure of judicial gatekeepers to adequately vet dubious evidence from forensic analysts. The NAS clarified for the lay public for the first time that many common forensic methods have no basis in science, relying instead on subjective analyses. But the full implications of their findings are only beginning to become apparent.

The subject has been especially on my mind since we did a podcast segment in August discussing the lack of judicial gatekeeping when it comes to DNA mixture evidence. In the case we discussed, the trial court admitted two different analyses of the same DNA mixture that came to different conclusions, and told jurors to pick the one they preferred! The intermediate appellate court affirmed the conviction, but didn't evaluate the question of admissibility.

That seemed to me like such an abrogation of the gate keeping function, it's hard to understand what if anything labeled "forensic" Texas judges wouldn't admit into evidence? (I mean, there's dog-scent lineups, but we had to shame them into stopping those.)

Clearly I'm not the only one thinking about how to tighten up these lax gatekeeping mechanisms. In that vein, here are several new academic analyses approaching the question from different angles:

• Paul Giannelli, "Forensic Science: Daubert's Failure"
• Brandon Garrett, Gregory Mitchell, "The Proficiency of Experts"
• Edward Imwinkelried, "The Best Insurance Against Miscarriages of Justice Caused by Junk Science: An Admissibility Test That Is Scientifically and Legally Sound"

I already printed out Giannelli's piece; these get added to Grits' to-read stack.

RELATED: Why criminal court judges are poor forensic gatekeepers.

AND MORE: From Radley Balko.

Bexar County to cease arrests for small quantities of pot

Bexar County DA Nico Lahood has announced people will no longer be arrested for small amounts of pot in San Antonio, implementing a system for officers to issue citations under a 2007 law passed by the Republican House Corrections Committee Chairman Jerry Madden, now with Right on Crime. See coverage in the Express News, which included a chart, appended after the jump, detailing the extent of marijuana arrests in recent years in the River City.

Texas prison gangs (still) responsible for much Juarez violence

Grits hasn't had the bandwidth to focus on border security topics for quite a few years, but I noticed a story from the El Paso Times which reminded me of themes this blog harped on back when it paid more attention to those subjects. A hit man from a Texas prison gang, Barrio Azteca, has been accused of at least 30 murders committed in Juarez, El Paso's sister city across the Rio Grande, which has witnessed more than 500 homicides this year, including the deaths of two police officers.

This brings up an issue related to the US-Mexico border which is almost never discussed, and which, in this era of fact-free partisan sniping over immigration, reflects a reality that the American political dialogue seemingly cannot wrap its head around: The real "spillover violence"  along the border results not from Mexican violence seeping northward, but from American criminals heading south to commit a large proportion of the murders we hear about on the other side of the river. And it's been that way for years.

Barrio Azteca has long hired out its services as contract killers in Juarez, sending gang members south to kill rivals then retreating back across the Rio Grande to safety. At one point, Mexican authorities estimated the Texas-based gang accounted for half of all homicides in Juarez. They have also for years operated massive trafficking operations on the US side.

I'm well past believing chauvinist American law enforcement cares about stopping this. As long as the violence stays on the other side of the border, they seem happy. It's one of the reasons Grits has always had trouble taking the most strident Drug Warrior rhetoric seriously. If you closely study cartel trafficking patterns and their seats of power (Texas law enforcement believes most cartels' "command and control" operations are on the US-side, primarily around Houston), and if you really wanted to disrupt the criminal gangs funneling drugs into the United States, the focus would be on these sorts of US-side activities, not "securing the border" with walls or other faddish solutions which seem to ignore the actual problems.

Should decarceration advocates push for federal reforms?

Writing in Vox, John Pfaff dislikes Cory Booker's Reverse Mass Incarceration Act for two principle reasons. First, he thinks it reacts to a misdiagnosis, seeking federal legislation because liberals to his mind wrongly blame the Clinton 1994 Crime Bill for the rise of mass incarceration. Pfaff thinks its role is overstated and that federal legislation can't do much to reduce incarceration in the states. Second, he thinks it will unnecessarily gin up enemies - in particular prison guards and prosecutors.

Grits thinks these concerns are overblown. Yes, the role of the 1994 Crime Bill has been overstated. But Pfaff undersells its importance in galvanizing support for tuff-on-crime legislation in the culture at large, and especially among Democrats, that trickled down to the state level. (In Texas, for example, the push for it helped sell Ann Richards' concurrent billion dollar bond issue she pushed to triple the size of our prison system.) Booker's bill, or perhaps a more bipartisan version, theoretically could do the same for 21st century pols, especially among the GOP, where the Right-on-Crime movement provides a ready vehicle for conservatives who wish to embrace justice reforms.

Second, it's a huge mistake to fantasize that decarceration can be achieved without fighting the institutional opposition like prosecutors, police unions, prison guards, and Chamber-of-Commerce types from rural prison towns. They're going to fight because their interests are threatened. Avoiding the fight is impossible and change can't happen until the fight is won. So Grits sees little sense in putting it off. The thing to do is pick the field of battle with the greatest near-term hope for success and begin slugging it out.

In my own experience, the processes such conflicts generate - the back and forth, the interrogation of claims, the debates over values, the competing demands on politicians, and even the interest-splitting compromises - are in fact how change occurs in a (small-r) republican system: Slowly and incrementally, the same way mass incarceration was created.

But that won't occur unless we start, everyone should start where they are, and since Cory Booker is in the US Senate, to Grits, it's fine if he starts there.

Roundup: Promoting rural decarceration, looking inside the black box, ending 'trace' drug cases in Houston, and declining juvie incarceration

Here are a few odds and ends that merit Grits readers' attention and will allow me to clear my browser tabs:

Court testing limits of DNA testing law, along with legislative patience
For nearly 20 years now, the Texas Legislature and the Texas Court of Criminal Appeals have been battling over who should get access to post-conviction DNA testing, with the Lege pushing for broader testing and the CCA doing its best to limit it. Larry Swearingen's capital case, in which he's claiming actual innocence in the murder of Melissa Trotter, is the latest salvo in this debate. See Jordan Smith's excellent coverage in The Intercept for a primer on the issues at stake.

No more Harris County 'trace' drug cases
Harris County DA Kim Ogg has ended the department's practice of prosecuting people for trace amounts of drugs, often scraped from pipes or scraped from car floormats, etc.. See good coverage from the Houston Press. Said Nick Hughes from the Harris County Public Defender Office, "People who are particularly at risk of being wrongfully convicted for possession a controlled substance are almost always the people who are accused of possessing less than a gram. That’s the stuff you find on the floorboards, on the seats, where they're just really reaching to make a prosecution, and it’s particularly dangerous right now when were not testing drugs with field tests."

Snitching reforms here, there, and yon
Alexandra Natapoff has a nice essay praising snitching reforms in Texas passed this year and suggesting additional reforms based on proposals in other states.

Peeking inside the black box
Pro Publica is trying to get source code for the black-box software interpreting DNA mixture evidence for the New York City medical examiners office. See Grits' earlier discussion and segments from the August and September Reasonably Suspicious podcasts for more on this issue.

Good news: Juvenile crime, incarceration, both way down
Both juvenile crime and juvenile detention rates have plummeted over the last decade. See a pair of articles (Pew, NPR) explaining the trend.

No reason to expect crime boosts from decreased incarceration
See coverage of a comprehensive meta-analysis of the effect of mass incarceration - and reducing it - on crime, as well as a summary in a series of blog posts. "The crux of the matter is that tougher sentences hardly deter crime, and that while imprisoning people temporarily stops them from committing crime outside prison walls, it also tends to increase their criminality after release."

Thinking about rural decarceration
We've learned over the last year or so that many rural counties are incarcerating people at far higher per-capita rates than urban ones. So I'm glad to see philanthropic resources going specifically to develop decarceration strategies for small and rural counties. That debate is overdue.

Driver-license suspensions and debtors prisons
Here's a good discussion of how driver-license suspension laws related to debt collection drive up poverty rates, especially in states with Driver Responsibility Surcharge programs.

American Conservative: Police Brutality a Systemic Problem
The American Conservative offered up "Seven Reasons Why Police Brutality is Systemic, Not Anecdotal." It includes these remarkable bits of data: "A Department of Justice study revealed that a whopping 84 percent of police officers report that they’ve seen colleagues use excessive force on civilians, and 61 percent admit they don’t always report 'even serious criminal violations that involve abuse of authority by fellow officers.'" When you look at the study, the 84 percent didn't say they'd "seen" excessive force but merely knew of it. But still. Wow. Also in that study, more than 67 percent of surveyed officers agreed that, "An officer who reports another officer’s misconduct is likely to be given the cold shoulder by his or her fellow officers." So that's a likely motive for not reporting.