Saturday, February 29, 2020

TDCJ-mail crackdown, prisons remain understaffed, how TDCJ staffing policies brought African cuisine to East Texas, and other stories

Hey folks, your regular correspondent remains under the weather but our pal Keri Blakinger of the Marshall Project was kind enough to send me an email, with permission to publish, updating us on a range of Texas criminal justice stories. Since I can't eat solid foods at the moment, this is much better than a casserole! Here's her email in full. Thanks, Keri!

Hello hello,

Since you are not up to posting on your own, I am sending you a personalized round-up of criminal justice matters. I considered sending an actual pack of grits but I don’t know if you really like them. Then I considered a card but realized that we both speak the language of news and a personalized, curated news round-up would be better. Obviously, it’s prison-heavy because that’s what I focus on but there’s some other stuff at the bottom too. Yay!

How TDCJ understaffing spurred the rise of African cuisine in East Texas
As has been previously reported, there are a lot of African immigrants working in TDCJ. My friend Maurice wrote about this for The Marshall Project before. There are now so many that small East Texas prison towns like Palestine have African food stores, as the Palestine Herald-Press noted this week. I think this is a kinda interesting (and idk maybe somewhat unique?) example of the impacts of prisons on the local economy and businesses. Without TDCJ’s big footprint there, I imagine there would not be African food stores popping up in Anderson County.

Jail Mail Crackdown
Obvs you wrote about the planned rule changes at TDCJ before. As announced in January, the shift will limit what prisoners can receive in the mail (no greeting cards, no glitter, no glue, etc.) and drug dogs will start screening visitors. 

There’s a few updates to this, though. As of Friday, TDCJ said that there are now five approved third-party vendors for greeting cards. So families cannot buy their own cards at the store and sign them, and they cannot make their own cards and send them - but they can pay (probably more) for a third party vendor to send a greeting card to a prisoner on their behalf. The vendors haven’t been announced or publicized but should be made public shortly, per agency spokesman. 

The other major update is regarding the visitation policy. What they agency initially proposed was that If dogs alerted on a visitor as a suspected source of contraband two times, they’d be banned forever. In the final policy the board approved Tuesday, the agency changed that so you just get kicked out for that visitation cycle but not banned permanently. 

Also, fwiw, TDCJ says they’ve been using dogs to screen the officers since October. The dog teams apparently show up randomly at various units, but the agency said they could not tell me how often the dogs have been out, how many officers they’ve sniffed or how much contraband they have or haven’t found. In looking at the monthly disciplinary reports, there does not appear to be any significant uptick in the number of officers getting caught with contraband: 156 employees were written up for contraband in 2019, which is an average of 13 per month. Then they started with the dogs and in Oct., Nov, Dec. it was 15, 16, and 15 contraband cases each month. (For point of reference: There are more than 21,000 officers in the agency.)

You might notice these contraband numbers are different from what the spokesman has been giving reporters; he told both me and Michael Barajas that there were 53 officers caught with contraband last year. I called and asked and the spokesman is still trying to figure out the difference; the larger number could include write-ups regardless of outcome, or it could include all employees and not just officers. Still unclear. In any case, I have a story about the mail situation coming out Monday with The Marshall Project and Texas Monthly. Oh, also, Lance Lowry and I talked about this briefly at the end of my latest podcast

Staffing Still Spotty
As I mentioned above, there are more than 21,000 officers in TDCJ right now - which is still far fewer than the agency says it needs. In theory it could be ameliorated by the fact that the agency is going to be closing two more prisons this year. They say they’re not laying off any officers, so the move could (v slightly) help with staffing issues. BUT, the two units they’re closing (Jester 1 and Garza East) were both pretty well staffed. Jester 1 - a Fort Bend County unit that holds just over 300 prisoners - was 98 percent staffed as of the December staffing report. Garza East was 75 percent staffed. By comparison, the prisons as a whole are 82 percent staffed. Polunsky - where death row is - is 69 percent staffed. Clements is 56 percent staffed, and Connally is 50 percent. Those are all bigger units (2,000 to 4,000 inmates), so the understaffing in those places probably more concerning than, say, Dalhart where *only 39 percent* of the jobs are filled but capacity is only around 1,000. 

Attaching the report in case you want it. (See here.) You’ll notice some prisons are overstaffed - and TDCJ will ship extra officers around the state to plug gaps. It’s presumably not cheap, and the officers keep telling me how much they hate it because it throws such a wrench in their lives. 

Getting Sick in Prison
Given those staffing levels, I keep wondering how TDCJ would handle a disease outbreak or any other medical emergency, were one to occur. Currently, they're not doing anything different other than being on conference calls and listening to the CDC advice and such. They say they have disease protocols, which involve isolation, but could not immediately offer more detail.

"We've got no reason to believe that there's going to be any issue in the near future," the spokesman told me Friday, pointing out that there were no cases in Texas. A few hours later, there were. So I don’t know if this changes anything and will check back with them. 

Okay, so I was going to keep going with this round-up but I should go work on my book. So - in the spirit of your podcast’s rapid-fire segment at the end - here’s an expedited round-up. I briefly considered recording all this like a legit podcast but a. that is a lot of effort and b. I could not begin to imitate your Texas accent if I tried my hardest.

In other Texas news
Frenemy and former colleague Sinjin is continuing to follow the fall-out from the whole Harding Street botched raid thing, the court clerk in San Antonio pulled staff from one misdemeanor court (!?!), the Harris County jail is no longer charging to cut inmates’ finger nails, the Chronicle stopped using mugshot galleries, reporter Zach Despart meticulously chronicled some stuff allegedly going down in one Harris County constable office, and Harris County DA Kim Ogg is catching heat for using pro bono attorneys from big law firms to prosecute JP court cases. (Those are Class C misdemeanor cases and do not carry jail time - but that also means the defendants aren’t eligible for court-appointed attorneys. This sort of arrangement has been done elsewhere without fanfare, as Ogg’s office has pointed out to me. In fact, when Ogg started it there was no fanfare at all as the program started in September and wasn’t announced till February.)

Outside of Texas: If you haven’t watched the Zo, 100 PERCENT GO WATCH IT. It’s three 5-minute-ish videos, and so totally worth it. 

The Appeal did some court-watching in Florida and the results are really wild

And THIS is a great piece about Daubert, which is not pronounced doe-BEAR, a fact that blew my mind. Somehow I was trying to be fancy and French and that was wrong. 

That’s all for now. Get better soon, Grits. You’re one of like maybe five people I have tweet alerts set for, which is high praise from a Twitter-addicted millennial such as myself.


Thursday, February 20, 2020

A brief hiatus

I'd mentioned earlier that your correspondent recently had a cancer diagnosis and a lump removed from my neck in December, leaving an ear-to-Adam's-apple scar that my granddaughter announced was reminiscent of Nearly Headless Nick from the Harry-Potter series.

I'm now in the midst of radiation therapy and, in the last week, it has knocked me down significantly more than I anticipated. (In particular, my 1/8-ton frame was not quite ready for the abrupt, no-solid-food switch!) As such, I'm going to suspend the blog until this is finished and I'm feeling better, hopefully in 5-6 weeks. No podcast this month; we'll see about March. It's possible I'll stick my head back in here a time or two if my energy improves or something urgent comes up. Otherwise, I'm focused on my health and perhaps catching up on reading and Netflix binging. Haven't had the energy for much else.

Wish me luck, folks! I'll report back in a few weeks.

Wednesday, February 12, 2020

What the jury didn't hear, against SWAT raids for routine search warrants, bail explainers, courthouse architecture, and other stories

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

Margaret Moore, Rosa Jimenez, and what the jury didn't hear
Weird comments from Travis County DA Margaret Moore on the Rosa Jimenez case in The Appeal: “There is an ultimate fact question that was resolved by the 12 men and women who actually saw all the evidence and heard opinion testimony,” Moore told The Appeal. “Everything after that is opinion by people who were not in that courtroom.” But here's the thing: The reason four judges have now said Jimenez is likely innocent and should be released is that the jury heard false, un-rebutted expert testimony that biased their view. When judges looked at all the same evidence, and also evidence to which the jury wasn't privy rebutting junk science in the case, they said Rosa didn't do it. So jurors didn't consider all the evidence. That seems disingenuous. (See prior Grits coverage, and listen to a segment on the case on the latest Reasonably Suspicious podcast, plus coverage from a Travis DA Democratic candidates forum over the weekend.)

Use of SWAT raids for routine search warrants creates needless risk
The practice of using SWAT tactics to execute routine search warrants continues to result in unnecessary deaths. A Waller County man was killed in a SWAT raid by police who wanted to seize a computer (someone else's) over alleged possession of child pornography. Can it really require a no-knock raid to seize a computer? This was unnecessary; the man's death was much more a predictable policy failure than it was an accident.

Fewer inmates beaten up more often at TDCJ
Recent inmate deaths at the hands of guards in Texas prisons highlights that use of force by staff has increased dramatically in recent years, reported the Texas Tribune, even as the number of inmates supervised declined and eight prison units closed.

Whistleblower gaining momentum in Sheriff's race
Liz Donegan, the Austin PD whistleblower who was removed as head of that agency's Sex Crimes unit because she wouldn't improperly classify cases as "cleared," is now running for Travis County Sheriff and, remarkably, earned the Austin Statesman's endorsement. Although Donegan was removed from her Sex Crimes post during Chief Art Acevedo's tenure, current Chief Bryan Manley earned ownership of the topic by blaming data errors on victims when the story came out. Him having her as a Sheriff-to-Chief peer would be deliciously awkward.

Bail explainers
Egged on by police, the Dallas Morning News has been blaming Dallas County DA John Creuzot for failures in the legacy bail system. But when they tried to do that in front of the City Council, staff gave everyone a primer on who is in charge of setting bail in Texas: Judges, not prosecutors. In Harris County, a judge demanded an explanation from prosecutors on why they blamed her in the press for a violent criminal's release when they'd never informed her of the details. Meanwhile, at the Paris News (TX, not France), a local reporter offered better explanatory coverage of the bail system than the Dallas News has yet.

Travis County judges dip toes in bail-reform waters
Travis County judges are saying they want to implement bail reform, including requiring defense attorneys at magistration, despite opposition from Travis County DA Margaret Moore. But the Texas Fair Defense Project and their allies say there would still be too much delay before release under the new proposal, and called for changes to the draft. Still, judges taking leadership on this is heartening news. They'd mostly dug in their heels before now.

No extra prosecutors for you, Kim Ogg
For the Harris County Commissioners Court, turning down District Attorney Kim Ogg when she asks for more prosecutors has become habit forming.

Houston crime lab to use disputed DNA mixture software
The Houston Forensic Science Center has begun using STR-Mix software for analyzing DNA mixture evidence. But last fall, a federal district judge in Michigan excluded such software from evidence after a "Daubert" hearing. DNA mixture analyses have been fraught with error for many years. Under the Michigan judge's ruling, based on recommendations from President Obama's forensics commission, STR-Mix software may be used when a) there are no more than three contributors and b) when DNA from the target makes up at least 20 percent of the sample. No word if HFSC intends to abide by those limitations.

Cherry picking data for scary headlines
The Austin Statesman issued a story with the headline: "Violent crimes with homeless suspects, victims went up in 2019, data show." The big news was that reported violent-crime incidents in the city increased by one percent last year, with a small increase attributable to the city's homeless population. What they didn't say was that Austin's population has been growing by 2-3% annually, so the rate likely decreased! Austinites were less likely to be victimized by violent crime last year than the year before. Why wasn't that the headline?

Defending Austin's federal courthouse architecture
The Department of Justice wants all federal courthouses to look like Roman temples and specifically criticized Austin's federal courthouse as an example of what they don't want. But I really like the federal courthouse in Austin. I was there recently for a hearing in the Rosa Jimenez case, then later to retrieve audio from the clerk. It's incredibly well-designed, with much more natural light and customer-friendly arrangement than most of them. Here's more on the Austin courthouse's architectural approach.

Fines and fees
Two essays on fines and fees for you:
'Doing justice isn't left, it's right'
The Texas Public Policy Foundation's Marc Levin thinks progressive prosecutors are mis-labeled.

Thursday, February 06, 2020

Misbehaving cops concealed, afforded leniency; prosecutors' abuse of power criticized; Travis County hires Public Defender, and other stories

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

Many agencies won't disclose police misconduct to Harris DA
About a quarter of Harris County law enforcement agencies refuse to hand over information about problem police officers to the District Attorney's office, reported Keri Blakinger, arising from the grave to issue one last Houston Chronicle story. The biggest non-participating agency is the Harris County Sheriff, along with all the constables' offices, all of whom declined to enter a memorandum of understanding with the DA's office on advice of the county attorney. Of participating agencies:
As of February, that so-called “disclosure database” included 1,461 people, 546 of whom are current members of law enforcement. More than 40 percent of those — 227 — were with the Houston Police Department, which Ogg said is responsible for about 80 percent of the cases filed.
El Paso cop gets probation for on-duty rape
A former police officer in El Paso was sentenced to a 10-year probated sentence after sexually assaulting a domesting violence victim he met on the job. The jury went with the lenient sentence after the officer's father and defense attorney argued that TDCJ couldn't keep him safe and sending a police officer there could be a "death sentence." Are there any examples of police officers sentenced to TDCJ being murdered? I can't recall one.

Prosecutor abusing power to punish uppity defense counsel
In San Angelo, the Tom Green County District Attorney is refusing to negotiate pleas for her clients because, in one client's case, she argued that plea bargaining is unconstitutional.
Stone was forced to give up [more than 10 clients] as a result of a targeted policy devised by Tom Green County prosecutors, according to a federal lawsuit filed in October. The complaint names district attorneys Allison Palmer and John Best and accuses their office of silencing Stone’s First Amendment views and retaliating against her for making the argument in a separate appeals case that plea bargains are unconstitutional.
The Tom Green County DA's policy targeting a lone defense attorney for being too aggressive is “highly unusual and made up out of whole cloth," an expert told the Washington Post. “But given the vast discretion we impose on prosecutors — even if it raises eyebrows — I would be surprised if a judge prevented” it.

Resistance in Big D to ↓ phone rates at county jail
Dallas County is balking at reducing charges for inmate phone calls. Commissoner John Wiley Price objected that the county would lose revenue from the calls and that the Sheriff would need extra staffing to facilitate video chats with inmates via iPad (in person visits would still be allowed as before). Meanwhile, the Texas Organizing Project objected to any charges for calls, insisting they should be free. The vote was delayed for two weeks but as the County Judge and 2 commissioners voiced support for the rate reductions, there's still a good chance it will go through.

Travis County hires Public Defender
Travis County has hired the first leader of its new public defender office: Adeola Ogunkeyede, a University of Virginia professor and former attorney at the Bronx Defenders. Grits recently heard her interviewed along with the other finalist for the position and am excited about the direction in which the office appears to be heading.

Travis DA's handling of sex-assault cases criticized
How the Travis County DA's Office handles sex-assault case has become the most-discussed issue in the Democratic primary. Sarah Marloff at the Austin Chronicle reviewed the controversy that's roiling the District Attorney's office. Grits had earlier called this issue "easily the most damaging complaint against her."

Alleged staff-on-staff sexual assault at Stiles Unit

A recent lawsuit alleged three prison guards at the Stiles Unit in Beaumont sexually assaulted a female colleague, The Appeal reported in an item I'd missed from December. The three were indicted last year for unlawful restraint of a public servant and official oppression. The victim's attorney said "he interviewed other female correctional officers at Stiles while investigating Carver’s case, and they told him that sexual harassment was routine and that they were ignored when they filed grievances."

TDCJ spokesman Jeremy Desel told The Appeal that in 2018, "there were 52 alleged incidents of sexual assault and 47 alleged incidents of improper sexual activity with persons in custody by TDCJ staff; one report in each category came from Stiles." I see where that data comes from, but I also see seemingly conflicting numbers reported by the agency.

According to the agency's 2018 Prison Rape Elimination Act report, there were 775 allegations of staff on offender sexual abuse, sexual harassment, or voyeurism in 2018. "Of the 541 sexual abuse allegations, 74 (13.6%) were identified by OIG as meeting the elements of the Texas Penal Code for Sexual Assault, Aggravated Sexual Assault, or Improper Sexual Activity with a Person in Custody." However, only 20 were ruled "substantiated." Most of the 775 cases reported were dubbed unsubstantiated or unfounded.

I don't know how to square data from PREA and the Ombudsman report Desel cited. 

Nationally, allegations of sexual abuse by staff are more common than allegations against inmates, with about 6% being dubbed substantiated. Readers will recall Texas youth prisons allegedly have high levels of staff-on-inmate sexual assaults. But male guards assaulting female guards in groups is a whole other kettle of fish. Anyone else surely would be prosecuted for sexual assault, not unlawful restraint and official oppression.

That sort of hostile work environment could also play a big role in why the agency has trouble retaining female staff. 

RELATED: #MeToo among Texas women prison guards.

Wednesday, February 05, 2020

Corrupt Houston drug cop allegedly set up innocent people, bail reform and mental illness, sensory penalties, and other stories

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

Conviction overturned based on Gerald Goines testimony
A man allegedly set up in a drug case by former Houston PD narcotics officer Gerald Goines has been declared actually innocent by a local judge. The Texas Court of Criminal Appeals still must approve those findings, but regardless, with Goines having investigated 14,000 different cases over the years, the implications are huge once convictions start to be overturned. Readers will recall Goines fabricated an informant to justify a deadly, botched no-knock raid that left the (innocent) residents and their dog dead and four officers injured. This case is definitely only the beginning. Now that the red pill has been swallowed, there's no telling how deep the rabbit hole goes.

Bodycam footage emerges of needless tazing that got 2 Austin PD cops fired
Bodycam footage corroborates Austin PD's claim that two police officers lied about a tazing incident that led to their firing, reported KXAN-TV, after my former colleague Chris Harris obtained the footage from the city. Proud of you, Chris. A jury last year declined to convict the two men, but Austin Chief Bryan Manley fired them anyway, declaring their actions were “inappropriate, unecessary, objectively unreasonable and a violation of department policy.”

Bail reform and mental illness
Tony Fabelo has published a new analysis of mental health and the justice system, homing in on pretrial detention. He suggests ways to streamline screening arrestees for mental illness to make it easier to get them services and/or released pending trial. Grits may have more to say on this later when I've read it in more detail.

Legislators urge justice in Rosa Jimenez case
Texas House members from Travis County sent a letter to District Attorney Margaret Moore asking her to "ensure that justice and basic humanity carry the day" in the Rosa Jimenez. Moore responded by leaning on the forensics that courts have now discredited and reiterating that the Court of Criminal Appeals had denied Rosa's writ, as though Sharon Keller and the Government-Always-Wins faction voting against her proves her guilt. Ask Joe Bryan about that.

Arrests vs. jail admissions
Today, nearly everyone who is arrested ends up in the county jail. Remarkably, a quarter century ago, three in ten people who were arrested did not. Why? According to the Vera Institute:
recent scholarship highlights that people are being admitted to jail for reasons that may not have warranted an arrest, including parole violations, bench warrants, failure to pay fines or fees, and failure to appear in court. For example, one report found that in some jurisdictions, 20 percent of incarcerated people are serving time for failing to pay criminal justice debts.
How conservative prosecutors should consider sentencing
The R Street Institute put out a policy brief describing "How conservatives can make prosecution more productive." For example, on criminal sentencing, the author says conservative prosecutors should take more factors should be taken into consideration:
In addition to expressing societal outrage at the defendant’s conduct or the harm they caused, a sentence ought to reflect its costs to society and its ability to shape a defendant’s future behavior for the better. Cost considerations include those of the sentence itself: for example, does it make sense to spend tens of thousands of dollars to incarcerate someone for the theft of a few hundred dollars of merchandise? It ought to also include how a sentence might undermine a defendant’s ability to productively reenter the workforce and society: will incarceration or onerous probationary conditions result in a defendant losing his job and with it his ability to pay victim restitution or support a family?
DNA mixture exoneration
Here's an exoneration out of Georgia based on correcting flawed interpretations of DNA mixture evidence. Grits is increasingly convinced the DNA-mixture mess is a much bigger deal than anyone in the justice system is acknowledging yet.

Sensory Penalties
I'm following a Twitter feed called Sensory Penalties, promoting a forthcoming book, that keeps pointing out interesting stuff. E.g., check out this beautifully written essay out of the U.K. on the sounds of prison, which is a fascinating topic to deeply consider. (The author, Kate Herrity, published her Ph.D. thesis on the subject of prison soundscapes; download a pdf here.) Another essay considers prison environments, visitation, and the sensation of "touch." Another Tweet links to an article suggesting a significant failure of forensics is the inability to convey smells. What an interesting lens through which to view corrections!

Tuesday, February 04, 2020

No R-E-S-P-E-C-T: Jury trials not only place for Texas criminal-defense lawyers to shed Rodney-Dangerfield image

"Want to earn a prosecutor's respect?," asked the Texas Criminal Defense Lawyers Association on Twitter. "Beat them in a jury trial."

So how much respect are Texas criminal-defense lawyers earning?

From the 2019 annual statistical report of the Texas Office of Court Administration, here are a few data points on trials I wanted to record for my own purposes. Maybe some Grits readers will also find them interesting.

Overall, reports the OCA, attorneys in Texas are taking about 5% of felony cases to trial. That's more than I would have expected, and as I'll discuss below, may be overstated.

Felony cases go to trial more often than misdemeanor cases, but acquittals in felony cases are rare:

Not as rare as in misdemeanor cases, though.

To be sure, many more cases receive dismissals than acquittals. Indeed, more misdemeanor cases are dismissed across the state than end up with a formal conviction. But apparently, securing dismissals doesn't earn prosecutors' "respect."

As an aside, what does it say about the quality of misdemeanor arrests being made if 43% of the cases are being dismissed?

Notably, when misdemeanor cases do go to trial, several categories of offenses have high acquittal rates:

But it just doesn't happen that often. Juries were selected in only 4,107 criminal cases in Texas during FY 2019: 2,701 in felony cases and 1,406 in misdemeanor cases. That's out of nearly 600,000 total criminal-case dispositions last year. (This is why I question the graphic above that said 2% of felony cases went before a jury; the juries-picked data in the same report comes in at 1.2% of felony cases.)

Regardless, for years I've heard complaints from thoughtful criminal-defense lawyers that TCDLA training and programming too overwhelmingly focuses on trial preparation and execution, even though that's a rather small part of what most criminal-defense lawyers do with their days. This Twitter tip seems indicative of that same attitude.

Grits would suggest to criminal-defense attorneys their higher priority isn't to seek "respect" from prosecutors so much as the best result for their client. Feeling personally disrespected is seldom a good reason to alter one's strategy when dealing with the government, and that goes double for attorneys in criminal court. It's just not about you!

Defendants receiving dismissals are better off than those who must go through a trial to get an acquittal. For my money, their lawyers deserve "respect," too," but apparently they must look for it somewhere besides their professional association.

Monday, February 03, 2020

Trump Super Bowl ad bolsters red-state #cjreform prospects

It's a sign of changing times that two Super Bowl ads ran yesterday (worth >$5 million each) related to criminal-justice reform. One was from the NFL (on police shootings), which I suppose could be considered a house ad. But the more surprising one by far was a new commercial from President Donald Trump's re-election campaign touting his clemency for Alice Free and passage of the First Step Act, which among other things shortened sentences for thousands of presently incarcerated federal prisoners.

Having spent more than $5 million on a Super Bowl ad, it seems highly likely we'll see this message quite a bit more in the coming weeks and months. The only reason you spend that kind of money is to launch a broader campaign. So this is a signal the First Step Act will be a central focus of the president's re-election message for at least part of the year. That can only help downstream reform efforts.

Grits found Trump's ad a bit odd and overstated, but from a big-picture perspective, I'm thrilled he ran it. As I wrote following the First Step Act's passage, the president's endorsement makes it harder for state-level Rs to adopt anti-#cjreform rhetoric and easier to embrace it. Now, "With Donald Trump's full-throated endorsement of the First Step Act, and with his son-in-law championing it in his administration, conservative Republicans supporting #cjreform are aligning themselves with the president headed into the next election."

To be clear, President Trump's record on criminal-justice issues has mostly been atrocious going back to the 1980s when he took out newspaper ads hounding the system to apply the death penalty to the Central Park Five (who were later exonerated, see Ava Duvernay's When They See Us). But even stopped clocks are right twice per day, and whatever one may wish it did besides what it did, the First Step Act was an improvement over the status quo and led to the release of thousands of already sentenced people earlier than would otherwise be the case.

At the Texas Legislature, proposals that release already-sentenced prisoners early based on good behavior or programming success have long been a third rail. It's why Texas has prison units that could be mistaken for nursing homes and incur exploding end-of-life healthcare costs. But even among conservatives, opinion is shifting. Following the most recent legislative session, the Texas Public Policy Foundation expanded its agenda to include adjusting parole policies to allow more releases. (I interviewed TPPF's Marc Levin about this last summer, listen here beginning at ~12 minute mark.)

Now, critics of such policies find themselves on the wrong side of the president's re-election messaging. That doesn't mean there won't be resistance to #cjreform initiatives, but it arguably helps undermine opposition to them.

MORE: On Twitter, former Texas House Corrections Committee Chairman and well-known GOP justice reformer Jerry Madden says he thinks Trump campaigning on #cjreform helps in blue states, too. Maybe so, I only feel qualified to speak reliably on Texas. But my sense is that Democrats will either consider the ad a ploy and ignore it, or else criticize the First Step Act for not doing more, which is what they were already doing anyway.

It's on the GOP side where this has the potential to shift the terms of debate. If the Trump campaign follows up this $5 million expenditure with millions more to promote the message in the coming weeks and months, which is how these things generally work, it will encourage his base to gravitate toward Right-on-Crime-type positions they would have criticized had Hillary Clinton adopted them.

Mass incarceration arose in the first place because, 25-30 years ago, there existed an unwavering bipartisan consensus in favor of making the system harsher. We won't ever reverse all that until both parties support overturning that generational policy error. Perhaps I'm being too sanguine. But if the Trumpian base begins to internalize #cjreform messaging as a result of this election cycle, and if reformers succeed in scaling back the carceral system, then maybe, down the line, history could recall this ad and the reaction to it as an important part of the story of how a new, de-carceral consensus was developed.

Saturday, February 01, 2020

Drug War propping up Texas criminal caseloads in a time of declining crime

The new 2019 annual statistical report for the Texas Office of Court Administration provides these broad datapoints about the Texas criminal-justice system:

The number of new misdemeanor cases continued to decline last year in Texas, but felony cases continued to rise slightly.

Drug cases contributed to a huge amount of this volume, both for misdemeanors (mostly pot) and especially new felony filings:

FY 2019 data already showed a slight drop in marijuana caseloads, even though the Legislature didn't change the hemp law until the fiscal year was nearly over. But felony drug cases continued to rise, helping generate overall felony caseload increases even though reported crime rates have hovered around generational lows in recent years.

Friday, January 31, 2020

Confronting racism at Austin PD, ↓ TX solitary numbers may be an illusion, driver license suspensions not enhancing collections, Big-D bail reform collapses into confusion, and other stories

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

Racial bias and disparities at Austin PD
A new report from the Austin Police Monitor's office demonstrated that black Austinites are disproportionately affected by police stops, searches, and arrests. The disparities are quite large, but Austin PD doesn't provide the data needed to drill down and discover particular officers engaging in discriminatory practices. The report comes in the wake of an assistant chief stepping down in December after a whistleblower revealed racist texts and emails sent to other departmental brass over many years. The city council ordered a review of internal officer communications in response that may reveal more racist officer communication, which has the police union mad as a wet hen. The Police Monitor's report provides a less personal, more systemic assessment of racism in the department, looking beyond individuals' points of view to the impact of departmental practices. Good for the Austin city council for taking this on.

Austin police chief orders arrests for crimes cops can't prove
In other Austin PD news, Grits finds bizarre Chief Bryan Manley's position that the department will continue to arrest and cite people for marijuana possession after the City Council forbade them from doing the lab testing to prove THC levels were above .3% and the substance could be distinguished from hemp. Isn't this the police chief openly saying he has ordered his officers to arrest people when they cannot prove the elements of the crime? To my attorney readers: What legal mechanisms exist to restrain police who openly choose to make wrongful arrests that prosecutors universally dismiss? IANAL, but it seems to me police don't have authority to arrest when there's no probable cause to believe a crime was committed. And since marijuana and hemp come from the same plant, they're indistinguishable without the test.

It's also worth mentioning, bringing the subject back around to the prior item, that marijuana enforcement generates even higher racial disparities than other Austin PD activities, reported the Austin Chronicle:
Data from APD shows that in 2019, a total of 432 citations were issued for marijuana offenses. Of those, 364 went to Black or Latinx Austinites, while just 64 went to white residents – despite similar levels of marijuana use among all three populations. So stopping enforcement of low-level cannabis offenses (see "Council Unani­mous­ly Votes to End Low-Level Pot Enforcement," Jan. 24) could reduce the disproportionate impact arrests and citations have on Austin's Black and brown residents. 
"It's outrageous for APD to be pointlessly writing these worthless pieces of paper," Emily Gerrick, an attorney with the Texas Fair Defense Project and an architect of the POM resolution, told us on Monday, Jan. 27. "Resources could be much better spent trying to address those types of racial disparities in the first place, such as with anti-implicit-bias training."
Competitive DA primaries in Texas
The Appeal compiled a list of competitive DA primaries in Texas. Harris, Travis, and El Paso counties are the big prizes. See a related spreadsheet.

Revenue collection not enhanced through driver license suspensions
The suspension of drivers licenses for nonpayment of traffic fines through the OmniBase program does not correlate with higher payment rates, found an analysis by Texas Appleseed and the Texas Fair Defense Project. The program "has a profound negative impact on people already struggling financially, driving them into a cycle of debt and poverty by taking away their ability to legally drive." The groups encouraged cities and counties to stop using OmniBase altogether, suggesting payment rates may be unaffected.

↓ Texas ad seg numbers may be an illusion
The Texas Observer's Michael Barajas took a deep dive into solitary confinement issues. Texas' numbers of prisoners in solitary, dubbed "ad seg" in TDCJ parlance, has declined by more than half, according to official figures. But Barajas' reporting raises the possibility that some of that reduction stems from reclassifying prisoners, not changing the conditions they live under:
as the Texas Tribune reported last year, some of TDCJ’s new programs may actually mask the extent to which the state has reformed its solitary confinement practices. Inmates moved out of solitary and into a mental health diversion program still live in conditions that seem indistinguishable from solitary; prisoners continue to be confined in small spaces and have limited time outside their cells. Regardless of these similarities, Texas doesn’t count its participants as being in isolated housing.
Dallas bail reform collapses into confusion
In Dallas, D Magazine has the story of how bail-reform their has collapsed into confusion. Was glad to see the article critique the same, ill-conceived op eds from the Dallas News at which Grits lashed out in this post. Here's  how the author, Shawn Shinneman, summarized the flaws in the DMN editorial board's analysis:
That editorial is inaccurate. It suggests we have true bail reform in Dallas County. We don’t. It insinuates Creuzot’s wish-list reforms are in place. For the most part, they aren’t. It also conflates a violent offender with the type of defendant bail reform is targeted at: poor people who are accused of a nonviolent offense, whose lives are upended because they don’t have money to post bond.
Long-time ex-San-Angelo police chief indicted for bribery
Timothy Ray Vasquez, who was police chief in San Angelo from 2004-2016, has been indicted in federal court for allegedly taking bribes related to the purchase of an $11 million radio system. Most of the alleged bribes were funneled through a wedding band called "Funky Munky" the chief played in on the side.

Reentry travails in Tyler
In The Tyler Loop, Jennifer Toon has an excellent essay on the travails of reentry given limited treatment resources and lack of halfway houses outside of the big population centers.

Economists economisting on crime
See the lineup for the Texas Economics of Crime Workship at Texas A&M, organized by Prof. Jennifer Doleac. As regular readers know, I consider economists' analyses of crime generally flawed and harmful. But thankfully, as in this workshop, most economists analyzing criminal-justice issues aren't utilizing economic principles, they're just doing applied math.

Flawed forensics chronicled
Recent coverage of flawed forensics deserves readers' attention:
1994 Crime Bill revisionism
Doug Berman says the 1994 Crime Bill wasn't as bad as you think and maybe even did some good, from the vantage point of 20/20 hindsight. But it still "fostered and reinforced tough-on-crime attitudes in Washington and among state and local criminal justice officials that contributed to historic growth in national prison populations." That's the most important takeaway, IMO. These revisionist analyses are fine, but here's the thing: Federal crimes are a small part of the system, so the biggest impact of the 1994 Crime Bill was political: It galvanized bipartisan support for mass incarceration that led to so-called liberal Democrats running political ads like this one:

Wednesday, January 29, 2020

DNA mixture math errors discovered in 2015 weren't the first

Grits this week revisited the 2007 "Bromwich report" regarding what then was the Houston PD crime lab while researching DNA-mixture evidence issues and realized something I hadn't understood at the time - or perhaps just never connected the dots: Errors calculating DNA-mixture probabilities were at the center of the years-long crisis that engulfed the Houston crime lab's DNA section for most of the aughts.

Readers will recall, in 2015, we discovered that all Texas crime labs were miscalculating DNA-mixture probabilities - in one case, a sample jurors were told matched one person out of a billion really matched one out of 50. Well, the same thing was happening at the Houston crime lab. Check out this chart from the Bromwich report identifying cases where DNA analysts vastly over-estimated the probability ratios:

So in Houston, they discovered the crime lab was miscalculating probabilities in the aughts, updated the math, then in 2015 discovered that math was wrong and had to update it again. Wow! This '07 comment from Bromwich about the HPD lab would have applied equally to every Texas crime lab as recently as 2015:
It is clear that DNA analysts in the historical Crime Lab ... did not fully understand the scientific basis for calculating frequency estimates from DNA profiles obtained from evidence samples and that they were not trained in the methods of properly calculating statistics associated with DNA mixture profiles and partial DNA profiles.
Notably, the method Texas labs were advised to shift to in 2015 - "probabilistic genotyping," most commonly using equipment/software from a company called STR-Mix - lately has itself come under fire. A federal judge out of Michigan recently excluded such evidence in a Daubert hearing. So it's possible DNA analysts will need to re-do their math again.

Returning to the Houston PD crime lab example, these are in many cases radical downward adjustments. From one in 6.3 million to one in 30? From a one in 2.9 million chance to one in 5? Would juries have convicted if they'd heard the lower numbers? I wonder if other crime labs were using the same method as HPD's during this period?

Of the cases in this chart, Franklin Alix was executed despite DNA testimony in his case having been declared unreliable. Only Josiah Sutton was ever exonerated; 11 remain incarcerated. By all accounts, the criminal-defense bar in Houston failed to step up in many instances, leaving most of these folks un-or-poorly represented.

It's highly likely there are more actually-innocent people on that list, but we'll never know. The DNA lab's other big problem was that it had a leaky roof and most of the historical DNA evidence was destroyed and couldn't be re-tested.

See prior, related Grits posts:

Bail reform saves lives, "The Ogg Blog," pay-per-surveillance, and other stories

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

Kim Ogg oppo blog launched
The Justice Collaborative has launched The Ogg Blog, providing background on various criticisms vs. embattled Harris County DA Kim Ogg as she faces a bevy of opponents in the coming March primary. Grits is grateful; I'd intended to compile a long, greatest-hits post for Ogg as a bookend to this one about Travis County DA Margaret Moore, so they've saved me the trouble.

Bexar County Jail deaths argue for bail reform
At the Texas Observer, Michael Barajas examines recent deaths in the Bexar County Jail, a topic which  led the Express-News recently to call for an audit. At root, the problems implicate a broken bail system that incarcerates low-risk defendants because they don't have money: "Don’t lose sight of the broad strokes," admonished the Express-News. "Three defendants in their 60s. All charged with criminal trespass. All given nominal cash bonds that kept them incarcerated pretrial. All dead in our jail. All of this in the span of about a year." But local judges, including one who ran a bail-bond company before ascending to the bench, have consistently opposed any move toward reforming bail processes.

To be clear, despite plaintive cries that bail reform will harm public safety, the real reason bail-bond companies oppose reform is all about preserving their anachronistic business model. Continuing to subsidize this industry in the 21st century is akin to subsidizing buggy whip manufacturers in the 20th: Their time has passed.

Fact checking the Governor on homeless policies
PolitiFact fact-checked Governor Greg Abbott on his claims about Austin's homeless. Guess how he fared?

Levin on reducing Big-D murder rate
Marc Levin from Right on Crime appeared on the Point of View podcast to discuss Dallas' plan to reduce its murder rate.

Google wants to begin charging law enforcement for requests for location information and other user data. The big telecoms already do so.

Monday, January 27, 2020

New TDCJ visitation/mail policies punitive and arbitrary

The Texas Department of Criminal Justice is changing its visitation, mail and commissary policies for Texas prison inmates in ways which seem arbitrary and unnecessary.

Let's start with visitation. TDCJ will begin running a drug-sniffing dog past all potential visitors, even children, and deny entry if the dogs alert. If a dog alerts twice, that person will be denied entry permanently.

The move is being billed as preventing contraband smuggling, but that doesn't justify it. For starters, nearly all the contraband smuggling is done by guards, and the biggest problem is the agency can't fire them because they wouldn't have enough people to staff the prisons.

Consider this example from the French Robertson Unit in Abilene last year:
A list obtained by KTXS from the Texas Department of Criminal Justice (TDCJ) said that 51 French Robertson Unit staff members were disciplined and one of those staff members was fired for bringing in contraband between January 1, 2013 to July 3, 2019, a six-and-a-half-year span.
The TDCJ also said that out of the 400 staff members at the French Robertson Unit, the number of contraband disciplines "are below average for disciplinary action and contraband issues as compared to the other 103 state prisons in Texas." 
So one staffer out of 400 was fired for bringing in contraband to the prison, while 51 were allowed to continue working there. And that's "below average" for other units. So it takes a lot of chutzpah for TDCJ to blame families for contraband! That's absurd.

Anyway, why not just run the drug dog past inmates before they go back to their cell, or search them, for that matter, if need be. If you're trying to find contraband, the policy makes no sense.

For that matter, if a drug dog hits on a family member, why not search them for drugs instead of just sending them home? If they don't have drugs, let them visit. Narcotics dogs have very low hit rates (especially compared to, say, explosives-detecting dogs) and in general are about as reliable as a coin flip. But to just send folks away when they hit? It's like they want to discourage visitation more than they want to discover contraband.

Which brings me to another point, if TDCJ is going to use drug dogs in this way, they should record every alert and gather data on false positives. If dogs are alerting when there are no drugs, then you're not preventing contraband smuggling by using them and the whole ordeal is just a waste of time that discourages legitimate visitors.

Changes to mail policy were equally unreasonable and untethered to actual safety concerns. No greeting cards? Really?

And this part seems directly aimed at discouraging letters from children: No stickers or "artwork using paint, glitter, glue, or tape."

In general, "Offenders will only be allowed to receive mail from general correspondents on standard white paper. Mail received on colored, decorated, card stock, construction, linen, or cotton paper will be denied."

Part of this is aimed at getting inmates and families to use their JPay system, but that costs more and bleeds inmates and families financially. Phone rates were finally reduced in Texas, but JPay renews the practice of mulcting incarcerated people's families for the privilege of staying in communication with their loved ones.

If public safety were in any way a concern, maintenance of family ties being a key predictor of success after people leave prison, the agency would do everything in its power to encourage family members to stay in touch with inmates. But they're understaffed and see those communications as a chore they'd like to cut down on, not a central pillar of successful prisoner reentry.

Part of me wonders if this is a ham-handed public relations move, getting in front of major problems with guards smuggling contraband by making a big show of publicly blaming inmate families for it. But that assumes more sophistication and forethought than the agency, whose institutional culture remains stuck in the '90s, generally demonstrates.

Regardless, these changes seem punitive, ill-considered, and even a little mean-spirited. Either TDCJ should reconsider them or the Legislature should change them next year.

UPDATE: Our pal Keri Blakinger with the Marshall Project was in the room when these new policies were announced and forwarded me her notes from the event:
When I first heard about the greeting card ban a few weeks ago, I called the spokesman to confirm and he would not confirm even though officials had already begun telling people. TIFA had known, prisoners themselves had known for weeks, and people kept asking me questions yet - absurdly - TDCJ would not confirm to me. So I showed up at the conference on Saturday in hopes of getting on-the-record confirmation. Here's a sampling of what was said:

The announcement formed the bulk of an hour-long presentation by CID Director Lorie Davis, who kicked off by telling the pretty-full room, "We gotta keep people safe and we gotta help people change."

(This seems to me often at odds with what actually happens but ok.)

"It’s no secret that drugs are bad choices, drugs are one of the reasons why we have the population that we do," she said. "It’s a bad choice to do drugs in the penitentiary."

She said, "We’re committed to fighting this battle," and added, "It’s great that the recidivism rate has come down 10 percent in 10 years that’s great that’s cool but it’s not enough." (unclear not enough what, recidvism decrease or positive action from the agency) 
One of the drugs she railed against coming in was suboxone, which is used to treat opioid addiction. It is easy to dose mail with the water-soluble strips - but it is not something people overdose on and is considered the "gold standard of care."

Despite banning glitter, colored paper and various other things, Davis specified that crayons are still allowed: "I don’t wanna take away a kid’s ability to use crayons and color their mom and dad a picture. That’s important." She stressed the value of staying in touch through mail, saying, "Let's put down our telephones and let's write some cards together." (She meant collectively, not literally offering to chill out with families and write cards, of course.*)
She detailed the creation of a new security precaution indicator (CD) for anyone who catches a disciplinary case relating to contraband (including simply refusing a UA). She says that this won't affect good time, just housing assignments and job assignments - like, those accused of smuggling won't be given janitor jobs.

Anecdotally, what I'm hearing is that the SSIs (porter/janitor-type jobs) are just moving these things around the unit, not necessarily the ones bringing them in - that is, according to all the jail mail I get, largely the guards.

She closed by freaking people out with news of the addition of video visitation at some units. Plans for this add-on were announced in 2018 when they lowered the phone rates. She reassured everyone it would not replace in-person visitation, and was just part of the phone deal. These are the units that will have it: Clements Connally Crain Michael Stiles Wynne Jester Garza Hutchins Montford Travis and Sanchez.

TBH, families still seemed freaked out about visitation - and generally - despite those assurances. She fielded a peppering of worried questions and by the time she closed with a very emotion-laden "drugs are bad," everyone seemed quite concerned.
* Grits' note: She also didn't mean writing cards, which she just announced were banned.