Friday, April 26, 2024

Most 'contraband' found at Texas traffic stops results in no arrest; nearly 50k arrests for Class C misdemeanors in 2023

I had cause this morning to dig around in Texas' 2023 traffic-stop data, so decided to post a few high/lowlights.

This data, published annually in a cumbersome, user-unfriendly spreadsheet by the Texas Commission on Law Enforcement (see here), only includes arrests, searches, etc. at traffic stops.

After Sandra Bland's death, Texas changed its laws in 2017 to require greatly expanded reporting about police activitiy at traffic stops. Framing this as "racial profiling" data, as the press does, really undersells this dataset: IRL, it's a vast window onto traffic-stop activity with race as only one of many variables.

For starters, it's the only way we even know how many traffic stops are made, since most do not involve citations. Total stops increased nearly 200,000 from 2022 (196,252, or a 2.66% increase), with 7,387,419 stops last year overall. The number of citations written, though, declined by about 12,000 to 2,769,610. So statewide, Texas saw more traffic stops but fewer citations per stop, with officers ending the stop without a citation nearly two thirds of the time.

In 2023, 49,796 people were arrested at Texas traffic stops solely for Class C misdemeanors -- the lowest level criminal offense for which the maximum punishment is only a fine, not jail time. These arrests occurred either for violation of local ordinances or, more commonly, for the underlying traffic violation for which they drivers were stopped. People of course can be and are arrested for other Class Cs -- e.g., "camping" ordinances aimed at homeless people -- outside of the traffic-stop setting.

The number of Class C arrests at traffic stops has been declining (>64k in 2019), but this still represents nearly 50,000 Texans taken to jail for offenses for which the maximum punishment under law does not include jail time. (Before the Sandra Bland Act, police routinely contended this almost never happened -- now we know it's quite common.)

Drivers were searched at about 4.7% of 2023 traffic stops -- 346,846 times. Of these, 23% (80,348) were instances when officers asked for consent to search because they had no probable cause. 

Cops arrested suspects at traffic stops 201,149 times, or at about 2.7% of stops. Taking away the Class C arrests mentioned above and another 54,540 arrested for outstanding warrants (mostly related to unpaid traffic tickets), the rest (96,813) were for alleged violations of Texas' penal code.

But things get squirrelier when we look at contraband discovered. Out of those searches, officers supposedly found "contraband" of some sort 151,123 times, which would give them an impressive "hit rate" of 43.6%.

However, drilling down, we discover that in the overwhelming majority of circumstances when contraband is discovered, the driver is not arrested! That means the "contraband" either wasn't illegal or was an extremely trivial item. Sufficient contraband was found to justify an arrest only 54,422 times, for a hit rate of 15.7%.

Three quarters of the time arrests were made, it was for reasons besides finding contraband -- warrants, Class C violations, or other alleged crimes discovered during the stop.

Use of force in this data set has a few problems, with a couple of departments (Nolanville and Palm Valley PDs, for example) reporting use of force at every traffic stop, which is clearly an error. And the Galveston County Sheriff reported an extraordinary use of force rate -- 574 incidents out of only 12,840 traffic stops -- or 4.4%, which seems either highly unlikely (my guess) or hair-on-fire alarming, if true.

Among larger agencies with more consistent reporting, Houston PD continued to be the big outlier on use of force, recording 3,358 incidents out of 339,715 stops, or nearly 1% of the time (0.99%). That's a lot! The Department of Public Safety used force 2nd most often -- 1,318 times, but made more than 1.375 million traffic stops. So the RATE at which they used force was 1/10th that of the Houston PD. Even so, DPS only reported use of force at 473 stops in 2022, so that's nearly a 200% year over year increase!

While not at HPD levels, use of force rates at the Tarrant County Sheriff (at 0.52% of stops), Midland (0.35%) and Austin PD (0.26%) were also notably high.

Complaints were filed by motorists 4,077 times in 2023, which seems remarkably low. But people probably don't complain because it's pointless. Out of those 4,077, only 4 resulted in sustained complaints that resulted in officer discipline. Out of 7.4 million stops.

Thursday, March 07, 2024

Texas District Attorney, CCA races and the future of Texas criminal-justice reform

The ouster of Kim Ogg in Houston and the re-election of José Garza in Austin -- coupled with the ouster of 3 members of the Government Always Wins faction on the Texas Court of Criminal Appeals -- signal a sea change in criminal-justice reform politics in Texas compared to a decade ago.

Increasingly, Democrats in Texas' largest counties favor reform and in both Harris and Travis made decisive choices for progressive candidates. This is a big switch from just a few cycles ago (e.g., when Kim Ogg herself was puzzlingly touted as a "progressive").

Meanwhile, Ken Paxton's slate of candidates who ousted Sharon Keller, Barbara Hervey and Michelle Slaughter are united in their willingness to overturn 150+ years of constitutional precedent to let the AG usurp authority of local prosecutors. The legal position for which Keller et. al. are being punished has been nontroversial in living memory. Now, insanely, it's considered a right-wing apostasy.

In essence, 3 stalwarts from the court's Government Always Wins faction have been replaced with members of a newly formed Lawlessness Caucus. God help anyone who thought things couldn't get worse!

For 2 decades, through about 2019, criminal-justice reform in Texas was a bipartisan issue -- evidence in favor of the "horseshoe theory" of politics in which left and right bend toward another at the extremes, creating opportunities for alliances between them against the political middle. 

But the latter days of the Trump administration, pandemic-era protests, and ultimately, the J6 uprising broke up that coalition, elevating culture-war issues above pragmatism. "Small government" conservatives increasingly were ousted as a more radical, Big Government Conservatism came to characterize the right in the late Trumpist era.

These trends reinforce my sense that nearly all signficant opportunities in Texas on criminal-justice reform in the near term will come at the local level, with state-level politics nearly impenetrable at the moment given the characters and ideologies at the top of the GOP food chain.

The only issue I see on the horizon that could buck that trend may be transparency. Conservative leaders from several camps appear to be coalescing around the issue as a priority for 2025, even if criminl-justice topics may not be at the top of the to-do list. Still, after the Uvalde inquiry, there's more of an opening on this subject than any other. If we witness anything like bipartisan #cjreform legislation in 2025, I'd bet dollars to donuts that'll be the topic.

Otherwise, to everything there is a season, a time for every purpose unto heaven. Judging from the tea leaves, criminal-justice reformers should focus on local issues for now, and 2025 at the #txlege will be a season for stepping up on defense.

Monday, February 12, 2024

What was that guy's name again? Attacks on a progressive DA by a philistine

An old-school tough-on-crime campaign has been launched in the Travis County Democratic primary by Some Guy I've Never Heard Of named Jeremy Silverbelly, or Silverspoon, or something. To be honest. I never can remember his name. He's just the guy a bunch of Republican donors picked to try to oust José Garza. 

In the interest of full disclosure, I've been paid a small sum to help Garza's campaign with political messaging. But long-time Grits readers will be aware that my interest in supporting him goes beyond the financial, and José's campaign did not see nor approve of this blog post prior to publication. 

Polls mostly show Austinites feel safe and one only need go downtown on any weekend, day or night, to see that's true. The central business district hasn't fully recovered during the week from the effects of work-from-home, but that's because of economics, not fear of crime. Weekend foot traffic tells the story of a bustling town unafraid of its own shadow.

Mr. Silversuckle can only win if voters are hair-on-fire afraid and believe that "Soft on Crime" policies by the District Attorney are enabling the forces they fear. So we get stories like this doozy from KXAN, a local TV station which my wife refers to on Facebook, incidentally, as the "Mouthpiece for the Police State." They put out a deeply misleading attack piece on Garza that intentionally and somewhat blatantly avoided any and all apples-to-apples comparisons to focus exclusively on red herrings.

Their central claim, summed up in the headline, was that, "More felony convictions in Travis County end up in local jail than anywhere else in Texas," with the reporter placing blame for this supposed affront on José Garza's shoulders. Mr. Silversurfer and the presumptive Republican nominee (more on him in a minute) were the main people commenting on the data, placing their sights squarely on the incumbent DA.

The story, however, compares Garza's stats on who gets probation/jail/prison, etc. to other Texas counties, not to his predecessor. The exact same story could have been written about Margaret Moore, and Travis County DAs going back to Ronnie Earle (let's please all just agree to forget the ignominious Lehmberg era, though of course, that was also a legacy of the Ronnie Earle era).

Yes, Harris, Dallas, Bexar, etc., utilize prison much more than Travis County, but it has ever been thus. In 2019, for example, the last year before COVID skewed everyone's numbers, the Travis County DA under Margaret Moore sent 20% of felony defendants to prison; under José Garza it was 16%, according to KXAN. But comparing him to jurisdictions that incarcerate at closer to or above statewide rates, instead of his predecessor, for whom Mr. SillyPutty worked, is simply disingenuous to the point of spreading misinformation.

Nearly the entire difference between the number of people sent to local jail rather than prison under Margaret Moore compared to José Garza can be explained by how Garza's office is handling state-jail-felony drug cases, with almost all of those ending up on probation or serving county jail time compared to Margaret Moore's tenure. But that's about it. Otherwise, the patterns under Margaret were remarkably similar to how José's office runs. But supposedly, according to Mr. Silverhair, those were the halcyon tough-on-crime days and José is some radical.

In reality, as I predicted when he was elected, the scope of change that's possible to enact from that position has been signifant, even important, but modest. José has done what he can, but the position is limited by a myriad other actors in the system and the particular role that prosecutors play in it. He's showing us the limits of what can be accomplished as a "progressive prosecutor" under the existing system. And since José himself is a rather wonky, thoughtful, careful little dude, he's doing what he can within the system, not attempting to break it.

That's why, for example, he dropped charges against police officers for shooting protesters after the city belatedly reported that supervisors distributed faulty munitions, knowing what could happen. The city did not tell the DA this until AFTER the statute of limitations ran out on the supervisors' decisions, and it would have been against his charge to "seek justice" to hold officers accountable in cases for which their supervisors were more culpable. There are certainly factions of Democrats who wanted to see those cases go forward. But José did the right thing by dismissing them.

Yet another example comes from what to me is a particularly sad quarter. Daryl Slusher, a former journalist turned city councilmember turned career-city bureaucrat turned neocon curmudgeon, wrote up another KXAN story from last year trying to smear José, but omtting even the nod to honest reporting their reporter made in that story.

The story is about a sex offender who attacked several women in public settings. He ended up with a sentence of 10 years probation, a requirement to undergo sex-offender treatment, and was placed on the sex-offender registry. Reported KXAN at the time (though omitted in Slusher's version): 

Those who accused Rios do feel a sense of justice, though they wish he had received a tougher sentence than probation.

“It’s difficult to sit in the courtroom and listen to these difficult experiences that they went through,” Jorge Vela, Rios’ attorney, said. “We recognize that, this is not lost on us. This was a deal that was reached with the district attorney’s office after 16 months of negotiation. It took into account my client’s lack of criminal history…There are different purposes in the criminal justice system, and one of those is rehabilitation.”

Vela said Rios is receiving sex-offender treatment. Rios was on house arrest for six months prior to being on probation now, according to Vela.

“There will be no more survivors,” Judge Karen Sage of the 299th Criminal District Court said at the conclusion of Rios’ sentencing. “This is it. It ends here.”
Several things here stand out: First, being placed on the sex-offender registry is a serious punishment that will affect this man for the rest of his life. Characterizing that outcome as letting him "walk free," as Slusher did, is disigenuous in the extreme. Second, I think most people don't fully appreciate what's associated with sex-offender treatment in Texas. Until you've googled "penile plethysmograph," you probably don't fully grok how these ritual humiliations are anything but a slap on the wrist. 

After 16 months of evaluation -- including six months under house arrest -- Judge Karen Sage and the prosecutor on the case concluded this was the best way to hold the offender accountable, ensure he entered treatment, and end his victimizing behaviors. "It ends here" is, in fact, the outcome you want if the goal of punishment is to maximize public safety and change the behavior of offenders. If the goal is something else, Mr. Sillysack and his abettors should say what that is. Because, on its face, the only plausible one I can think of is to scare the public into voting against José.

In reality, Travis County saw a murder spike in 2020 and 2021 that mirrored national trends and caused all manner of overreaction and blaming of progressive politics. The police were never defunded but the murder spike was incessantly blamed by many of these same, disingenous voices on protesters calling for that outcome and the election of progressive prosecutors like José Garza, who took office in January 2021. Murders peaked that year, then declined, but equally interesting is the trend on "crimes against persons." These are the data from the Austin police chief's monthly report:

If we're going to blame Garza when crime increases, let's also give him credit when it goes down. Margaret Moore would have been amazed to see crimes against persons decline more than 10% on her watch, and the TV news folks would have eagerly touted her effectiveness had that occurred (it did not). But the crime decline took place under a self-avowed liberal, so we get weird, manufactured stories pretending the Texas state capitol has devolved into some dystopian hellscape.

I'm hopeful Travis County Democrats will see through these attacks and stick with José Garza, but H.L. Mencken wasn't wrong that no one ever went broke underestimating the intelligence of the American public. That's Mr. Sillysack's only hope of defeating Garza, which is why you're seeing these attacks being planted in the press, and will soon see them (or similar ones) replicated on television. 

Okay, fine, so his name is not Sillysack, or Silverbelly, or any of these other names that keep emerging in my head. It's not my fault I can't remember the name of this cipher of a candidate backed by Republican money who applied for a job on José's leadership team but quit when Garza promoted a more qualified woman over him. 

Mr. Sillyseason's name is difficult to remember, even though he's been endorsed by the GOP DA candidate (who is encouraging Republican voters to cross over to the Democratic primary to vote against Garza). I doubt the Republicans will remember his name, either. OTOH, it doesn't matter what his name is, no one is voting for Mr. Silverstreaker. They're voting for or against José Garza.

Still, there are too many silly/silver puns and wordplay options available; I need a mnemonic to remind me of this guy's name, and I'm betting you do, too. I got it! "Sylestine." Rhymes with "philistine." 

Don't vote for him.

UPDATE: Silverbell's first negative TV ad is now up. He accuses Garza of  lenient plea deals with "more than a thousand" violent criminals, ignoring that in every jurisdiction in every state in the country, virtually all cases, violent felonies or otherwise, result in plea bargains. This couldn't be more disingenous. It's not like he's going to end plea bargaining, after all, or would even want to. It's not even an attack, really, just pure fearmongering: Say some scary words, show a darkened image of the incumbent over tense, scary music, and hope the public jumps in your direction. We'll see soon if Democratic primary voters fall for it.

Monday, January 22, 2024

Icarus in Heels and Fur: A Murder Mystery

My next neighborhood history zine, Icarus in Heels and Fur, comes out February 22nd. Without exaggeration, I think it may be the best thing I've ever written. Pre-order here. This one is essentially a noir murder mystery from the 1940s:

When, after her husband's murder, a petite but ruthless widow builds a thriving nightclub empire in 1940s Austin, her roller coaster of bebop-era decadence, ambition, and danger climaxes in a sordid, unsolved murder, leaving her young lover on trial for his life.

Cover art by Lakeem Wilson

The central character, Vera Barton, more or less put the fatale in femme fatale, with friends, husbands, and employees all at risk seemingly just from proximity. And yet, she was big-hearted, family-oriented, and a savvy young businesswoman. Until she showed up dead in the back of her Caddy.

Vera was the sister-in-law of Essie Mae Barton, the entrepreneur profiled in my first neighborhood zine, "Meet Me At Hudspeth's Corner," published last July. Vera was a much spicier figure, though: basically a gangster version of Essie Mae. Zine launch will be February 22nd, 6:30 p.m., at the Future Front meeting space, the site of Vera's old Barton's Tavern on East 12th Street. District Attorney Jose Garza will co-host the event: Open records requests for historical documents from his office made the research possible, and all sorts of fascinating criminal-justice policy questions arise from the story.

Josie Duffy Rice, a well-known criminal-justice-reform advocate and former editor-in-chief at The Appeal, served as guest editor. That was particularly fun; I've been looking for a project to work with her on for a while.

Please help spread the word. Pre-orders really help w/ the economics of zine publishing, so if you're interested, order now and I'll mail it to you as soon as it's out. 

Tuesday, January 16, 2024

Six observations and a question

My mind has only partially been on anything criminal-justice related, lately, as I finished up the second of my little neighborhood history zines (pre-sale coming soon), and settled back in to Austin routines during the holiday season, after 4.5 months in Mexico. But as 2024 unfolds, here are six observations and a question.

1) I was never a great fan of the "progressive prosecutor" movement, both from a conceptual and a strategic perspective. Conceptually, I believe the prosecutor's role is inherently regressive. Their only power -- to seek state punishment for rule violators -- is a regressive function. IMO, there's no "progressive" way to do that job. Strategically, I believe, based on reams of polling data, that criminal-justice reform doesn't consistently win in majoritarian election contexts. We do better when the debate is over facts, arguments, and experts. Elections related to crime, by contrast, are more typically about unexamined, inchoate voter feelings and scary anecdotes. In certain towns, like Austin, Democratic primaries are liberal enough to pull it off. (We're lucky to have José Garza.) But Texas has 254 counties, nearly all of which have their own DA. And we need look no further than the largest (Harris) to see that Democrats running as "progressive" don't necessarily live up to any meaningful usage of that term.

2) The debacle around the city park in Eagle Pass clearly is an intentional provocation by Greg Abbott, politicizing DPS and the National Guard to obstruct the Border Patrol, ironically. Now that people have died, we'll see litigation surrounding this. I don't blame Biden for high migration levels, but I do blame him for waiting to confront Abbott until it got this far, with armed agents of the federal government in a standoff with the National Guard while migrants drowned in front of them. One appears less noble when you're forced to act and do so only when backed into a corner after pointless, predictable deaths occur. The fecklessness equals that in Uvalde, if not the scope of tragedy. It's amazing how Abbott can be so profoundly in the wrong, and at the same time the Biden Administration can still seem to find no high ground.

3) The AG's open records process has become increasingly politicized, particularly on law enforcement and criminal-justice records. They deny records based on the flimsiest of claims now. It's incredibly frustrating, particularly for someone who started this work in the halcyon pre-Holmes-v-Morales era.

4) Since I'd written on Grits about the Texas prison system's long-defunct prison-baseball league, I should mention finding this article recently referencing the "Satchel Paige" of the Texas prison system, Claud "Scottie" Walker, a negro-league alum who played for Rube Foster's Chicago American Giants and was still hurling for the Clemens Unit Panthers, at age 68, in 1963. Walker said the greatest baseball experiences in his life were pitchers' duels versus John E. Hines, another American Giants alum who pitched for 8 years or so for the Ramsey (Unit) Hard Hitters. I wanna track down more on these two men, so maybe more on these topics, soon.

5) Between Keri Blakinger moving to SoCal, Jolie McCollough getting laid off, and Grits taking most of 2023 away, it's REMARKABLE how much shit TDCJ and TJJD can get away with with nobody paying close attention. Michele Deitch is right, they need their own oversight agency. That's a full time job if you have staff, not something one reporter (or blogger) can do by themselves.

6) It's hard to get too worked up about the Houston mayor's race because, though I'd prefer John Whitmire have not won, Sheila Jackson Lee couldn't have been a lamer, less inspiring choice. At least he's no longer in the senate to block air conditioning in prisons or drug-policy reforms that other red states enacted long ago. To paraphrase Jim Hightower, if God had intended us to vote, She'd have given us candidates.

Finally, here's my question: What do folks think are the main criminal-justice races to watch during the primaries? Obviously, the Harris and Travis DA races are big: An incumbent win in the latter would be a sanguine result, while an incumbent loss in the former would be an earth-rumbling victory. I haven't been watching the blow-by-blow in El Paso, but that DA's race seems like an important one, too. Beyond that, you tell me: Where's the drama this season?

Sunday, January 07, 2024

New Year Check In: Anyone still out there?

Having taken all of 2023 off, my spouse absolving me of all income generation responsibilities for the year, I left this humble blog to lie fallow, checking in only to promote other interests. I still don't know what the future holds for this lowly opuscule, but having had multiple reporters seeking me out since I got back from Mexico (mid-December), all asking what's being missed now that Keri Blakinger and Jolie McCollough are no longer working the Texas justice beat, I thought I'd say to y'all what I've been saying to them:

The vast scope of Operation Lone Star is a game changer. The annual budget layout has become extraordinary, dwarfing Texas' entire community supervision and parole budgets combined. The result has been local/county jails filling up with low-level immigration holds and now, new charges being cooked up each session by nativists in the Texas Legislature. Meanwhile, prison populations are going back up, spurred in part by new statutes criminalizing a growing percentage of the same gun owners being encouraged to open carry.

Belatedly, the Biden Administration has taken some of the more extreme immigration-enforcement-authority issues to court, from lining the Rio Grande with concertina wire to deputizing Texas law enforcement as immigration agents. But if Abbott/Paxton prevail at SCOTUS, the nature of Texas state and local government could change radically, and suddenly, as county by county elected sheriffs and constables begin utilizing this authority in earnest.

A quick check in at TDCJ finds probation revocations to prison remarkably down, while parole violations remained a reliable source of new prison entrants. Still, their numbers were small compared to straight-up new receives.

Texas has the largest prison system of any state (though California has more people, they also have both lower crime and incarceration rates). About a quarter of TDCJ inmates are aged 50 or above, which is why inmate reductions haven't led to cost reductions. We're keeping inmates longer, paroling them less often, and so health care costs increase for the older cohort remaining more rapidly than decarceration reduces costs from covering fewer people.

Looking at the Texas justice system from the 30,000 foot level: The most recent topline data available in the TDCJ Annual Statistical Reports comes from August 30, 2022. At that time, roughly 651,000 people were  under control of the justice system either in prison, jail, on probation, or on parole. Probationers made up the biggest total (54.5%), followed by prison (18.7%), parole (15.8%) and county jails (10.9%).

In that context, consider that a roughly similar number -- northward of 600,000 -- have outstanding warrants for (mostly) trafic violations. Long-time readers of this blog may recall this author spent 12 years working to get the wretched Driver Responsibility surcharge eliminated. When we finally did, more than 1.5 million people received relief. But nearly half of them still couldn't get their drivers' license back because of unpaid traffic tickets -- a process tracked and enforced in Texas via the Omnibase system.

In 2022, Texans were arrested at traffic stops 121,979 times, according to data reported under the Sandra Bland Act; 52,748 of those were for outstanding warrants.

More than 1.2 million people in prison, on probation, on parole, in jail, or with outstanding warrants may seem like a lot. And it is. But it wasn't long ago that north of 1.5 million people had had their drivers' licenses stripped over traffic violations. For a system as vast as Texas, some of the big-volume inflators -- especially probation violators filling prisons and debtors-prison policies filling jails -- have reduced in pressure just bit thanks to specific policy changes. 

In other areas, pressure has ramped up. We've seen the criminalization of doctors playing out on the national media stage, and local governments experimenting with crazy travel restrictions ostensibly criminalizing women driving through their counties to seek abortions in New Mexico or other states. This news to me seems even more bizarre/ominous given that the governor is stringing concertina wire not just along the Rio Grande but on the New Mexico border, as well (running north from El Paso). While meaningless today, with the current US Supreme Court and a potential Donald Trump second term on the horizon, who knows what nutballery may suddenly become legal tomorrow, as evidenced by the draconian "heartbeat bill."

Politically, we're seeing the limits of progressives' ability to influence local criminal-justice politics. The Dallas mayor -- a former Democratic state rep -- came out as a Republican last year, as for all intents and purposes did the new Houston mayor. The Harris County DA is running for reelection under attack from her party's left flank; the Travis County DA is running for reelection under attack by his party's conservative wing. Either her victory or his defeat would be seen as a major progressive loss.

On a perhaps related note, if you're looking to get your ass beat when getting pulled over at a traffic stop, Houston PD is the police force for you: 45% of instances of police use of force at Texas traffic stops -- 2,877 out of 6,363 -- were at Houston PD in 2022 (2023 data comes out in March).

Finally, the number of felonies one can commit with an oyster in Texas has risen from 11 to 16, according to the latest list compiled by the parole board. As a reminder, Texas eschews most types of traditional shellfish regulation, because, freedom, or something, and instead relies on criminal law to punish commercial misbehavior, which is how you get to 16 oyster felonies and perennially fished out oyster beds. That represents about one half of one percent of all felonies, btw, the total number of separate, discrete felonies, according to the parole board, now exceeds 3,200.

Happy new year, gentle readers. Let me know in the comments what issues criminal-justice reporters/advocates should be looking at in 2024. I have been quite intentionally not paying attention.

Monday, July 17, 2023

Congressman headlining Grits' zine launch event

For folks in Austin, please come to Grits' zine launch Sunday, July 23rd, from 2-4 p.m.. We're going to record interviews w/ me and others by Congressman Greg Casar about the zine topic (the history of a neighborhood grocery store 2 blocks from my house that turns 100 years old this year) and publish it afterward as a podcast. Event is at:

Community Garden wine bar
Hudspeth's Corner
1401 Cedar Ave., Austin, 78702
(between 12th and MLK, in East Austin)

The zine essentially takes the same investigative reporting skills Grits readers have seen me exercise on this blog for two decades, and applies them to a seemingly mundane topic -- a dilapidated corner grocery store -- with remarkable and compelling stories emerging that inform the whole history of the neighborhood.

If you can't come to the event, please do pre-order a zine, if you haven't already. And thanks, as always for your support over the years and into this next phase.

Monday, July 10, 2023

Pre-order Grits' new micro-history zine

With the paltry rate of posting on Grits, you might have thought I was no longer writing. But I'm pleased to announce a new zine I've been working on over the past couple of years: A micro-history of a small, 100-year-old neighborhood grocery store 2 blocks from my home, in a shopping center dubbed Hudspeth's Corner. (This is the cover art, above, by the wonderful Lakeem Wilson.)

No one living knew the site's origins, but it's a decidedly epic tale of the rise and fall of a segregation-era black family business. The saga, spanning 5 generations, provides a  unique window into the history of the whole neighborhood. (More or less against my will, the story includes significant criminal-justice themes as well.)

Undertaken as a palate cleanser after the 2021 legislative session, I began researching a series of deep, historical stories in the East Austin "Chestnut" neighborhood where I've lived for 33 years, all within a few blocks of my house. The rest will be released in 2024 and 2025, but because of the 100-year anniversary, Kathy and I wanted to get this one out now before we leave in August to go to Mexico for the rest of the year! 

It would really help if folks pre-ordered copies; you can do that here, ensuring your copy will get dropped in the mail the moment it rolls off the presses. (Price is $6 plus s/h.)

Then, on July 23, we're having a zine launch at the Community Garden wine bar at the Hudspeth's Corner site. Congressman Greg Casar has agreed to cohost and we're going to record a little podcast about the store featuring historians, preservationists, and neighborhood folks. If you're in Austin, join us! 

I'm excited to put this out; it's been a fun little project.

Tuesday, April 04, 2023

Near race war in 1868 Houston led to ban on carrying firearms for self-protection

I.C. Lord was the City Marshal in Houston following the Civil War who is credited with turning the Houston Police Department into a modern police agency, with uniforms, ranks, and patrol beats. I'd seen references to him being shot in 1868 in an episode of civil unrest by Houston freedmen, but until today hadn't ever seen the backstory. 

It turns out, if this contemporary press account is to be believed, Lord's injuries resulted from unusual episode involved a black lynch mob trying to break a black alleged murderer out of jail to hang him. This resulted in a tense standoff between armed black and white mobs that apparently, nearly led to a literal, violent race war in Houston. And it led the Mayor and Marshal Lord to enact a ban on carrying weapons in public, requiring that Houstonians "disarm themselves and place their entire reliance upon the execution of the laws by the officers thereof."

Today, this incident has been all but forgotten. This article was published in the Dallas Daily Herald, June 27, 1868 under the headline, "Disturbance in Houston." On Sunday, the 14th of June, 1868: 

A very serious disturbance took place in the city of Houston ... which it was at one time feared would result in much bloodshed and other riotous acts. 

A colored man, named Geo. Noble, and another colored man, named Bob Henrick, were at a colored dance, or ball, on Saturday night, in the suburbs of the city, near the "Old Grave Yard," at a place kept by a colored man named Bias. An altercation ensued between Bob Henrick and another colored man, whose name we have not learned. George Noble interfered and endeavored to stop the difficulty in an amicable manner. Bob Henrick took offense at this, and resenting it, put his hand upon his pistol, drew it, and fired, missing his aim. George Noble drew his pistol at the moment he saw the action of the other, and also fired, hitting Henricks in the neck, the ball coming out at the back of the shoulder. Henrick, however, is not dangerously wounded.

From the statement of Marshall I.C. Lord and Deputy Marshall J.N. Lord, we glean the following particulars of the subsequent event. Geo. Nobles immediately after the above occurrence went to Deputy Marshall Lord and stated his difficulty and delivered himself up, and was placed in confinement at the Bell Tower on Market Square. About 4 o'clock the next (Sunday) morning a number of freedmen, armed with guns, came to the calaboose and said they wanted Nobles. Of course, he was not given up to them. The negroes insisted that he should be given up -- and they believed he was not in confinement but at liberty.

One freedman, Ned Lockhart, offered to lead his companion to the calaboose, take him out and hang him. Marshall Lord went up to Lockhart and attempted to arrest him, but he broke away, but Lord succeeded in getting to him and struck him with his cane when a general melee resulted in which Marshall Lord was bruised and shot in the back of the head, and Lockhart was shot in the thigh, another freedman, who had shot at Marshall Lord, was pursued and after being disabled by a shot was also arrested and sent to the lock up. Immediately after these occurrences the colored people began to pour into the Market Square from all parts of the city, a large number of them being armed. Vengeance on the prisoner Nobles, was the generally expressed object, and bitter hostility and threats toward the white people were generally manifested and uttered. The Telegraph adds:

At this time the city bell began to ring to call the citizens together and they came pouring in, a great many of them armed, and as the two races mingled together and expressed their feelings according by the temper of the occasion, a bloody collision seemed for a while unavoidable.

After a time, however, the negroes dispersed, and in a little while the news spread rapidly that over five hundred of them were assembled at the colored Methodist Church, and that they openly proposed to march down Main street, seize all the arms they could, arm the black population generally, attack the whites, and  that the unarmed ones among them would assist by firing the city. This turned out to have been very nearly correct. But better counsels at length prevailed. Several of our prominent white citizens, who were either sent for or were of their own motion, together with the Mayor, made addresses to them, and they decided to abide by the decisions of the courts in all matters involved. At the same time, however, colored couriers were seen going in all directions, mounted and on foot, to summon their brethren from near and far.

While all this had been going on, the citizens had been rapidly organizing and arming both in independent companies and as a special police force. This work continued the whole day, and until after dark. The whole city was full of armed men and men arming. In addition to the large police force organized, the various fire companies were armed and ready to turn out at a moment's warning, besides the temporary organizations of citizens, each company being under the command of officers selected for the occasion. Signals were agreed upon to which every man was to respond instantly. Scouts and couriers were sent out, and the armed citizens not in the companies were generally agreed to turn out should a general fight ensue at any one place.

Thus was the evening and the night passed, until the next morning dawned on the city. The patrol went through every part of the city during the night, and strange to say hardly any colored men could be found. The women and children were all alone. The men had evacuated the city entirely. The most of them, however, returned in the morning.

The following was the arrangement agreed upon under the auspices of the Mayor:

"In the matter of the killing of a colored man by George Noble (colored) by which a serious public riot was imminent, His Honor, Mayor McGowan, appointed the following persons, to wit: C.S. Longcope, B. A. Shepherd, W.R. Baker, John Shearn, T.W. House, Elias Dibble, Charles Chatman, Sandy Parker, Dick Allen and John Sessums, a committee to concoct such measures as would tend to allay the excitement and prevent like occurrences in the future. And among other things, after appointing C.S. Longcope Chairman, and W.R. Baker Secretary, the committee unanimously adopted the following resolutions.

"Resolved, As the sense of this committee that while deploring the occurrences of this morning, that it is deemed proper that a thorough investigation should be had into the conduct of the persons who assumed the initiative in it, to ascertain if there was any partiality in the proceeding whereby the city was seriously endangered in its peace and in the preservation of property. If it be ascertained that there has been any wrongdoing on the part of any one, that steps be taken to appropriately punish any such party or parties.

"Also, Resolved, That the trouble in this community which was caused by the death of a fellow human being, and the wounding of several others, which threatened a general riot, grew out of the pernicious habit of carrying concealed weapons, and that the Mayor and Aldermen of this city be requested to pass an ordinance with sufficient penalties prohibiting the carrying on the person of all concealed weapons; and that the Council memorialize the State Convention to make a Constitutional provision of the sme import for the State at large."

                                                C.S. Loncope, Chairman

Subsequently to the above the Mayor of the city issued the following proclamation.

                                                Mayor's Office, Houston, June 16, 1868 

Notice is hereby given, that, in order to allay all feeling and excitement occasioned by the unfortunate occurrences of Sunday last:

It is hereby ordered that all citizens disarm themselves and place their entire reliance upon the execution of the laws by the officers thereof.

All parties who have been called upon to act, and were sworn as special police, are required to leave their arms at home and are relieved of active duty until called upon to prevent disturbances, regardless of the quarter from whence they arise.

I call upon all good citizens to assist in carrying out the laws, for upon the execution of them alone can we rest safely. 

And I earnestly request of all that they pursue their usual avocations, that all disquietude and feeling may be suppressed.

    A. McGowan,

    Mayor City of Houston

UPDATE: Another, contemporary story adds that the shooter was a black conservative sympathetic to the white establishment who had killed someone several months before and been acquitted. That article says that Marshal I.C. Lord had not taken the shooter to jail but was sheltering him elsewhere, and the mob demanded he either be jailed or hung. They dispersed when he was taken to the county lockup. He was convicted in 1869 and sentenced to two years in prison.

Tuesday, March 07, 2023

Jeff Blackburn Memorial Comments

On Saturday, per his request, I spoke at Jeff Blackburn's memorial service about our work together in the aftermath of the Tulia drug stings and at the Innocence Project of Texas; here's what I said. Below my comments, I've compiled links to a guest post by Jeff and various interviews with him on this blog over the years, if only for my own selfish purposes: It was nice to turn on a couple this morning and hear the sound of his nasally, flat, Panhandle drawl. They broke the mold after Jeff Blackburn and I probably will never stop missing him. Rest in Power, brother.


For the first year or so I knew Jeff Blackburn he was mad at me. I was part of a group of people who revived the ACLU in Texas after it had been dormant a number of years, and in 2000 we began organizing family members of the Tulia defendants to bring them to the capitol in Austin to push for drug-law reform.

Along with Vanita Gupta, who at the time was a 26-year-old rookie and is now the #3 at the US Department of Justice, Jeff had taken on a civil suit on behalf of the Tulia defendants, and he was sure their family members were going to say something at the capitol to screw up his case. We defied Jeff and did it anyway, which made him more or less apoplectic. He and I had some epic rows. But we also kept him in the loop, bringing him down to Austin whenever the families came so he could see first-hand what we were doing.

One of the “Tulia bills” we passed that session created a new requirement that prosecutors corroborate testimony by confidential informants to secure a drug conviction. In September 2001, when the law took effect, a reporter called around to the largest DA’s offices to ask how many cases they’d dropped as a result: The number was around 800, and that was just for the 5 or 6 largest counties. To be clear, for the non-attorneys in the audience, that’s 800 people who would otherwise have been convicted based solely on the testimony of drug dealers getting their own cases dismissed in exchange for cooperation.

One of my fondest memories was calling Jeff to tell him this news. I’ll never forget the long pause on the other end of the phone line, then he said quietly -- as quietly as I've ever heard Jeff Blackburn say anything -- “Henson, I couldn’t get that many cases dismissed in 10 lifetimes!”

From that moment, Jeff was hooked. We became collaborators, coordinating legal and organizing work to craft a narrative and build a movement beyond the confines of the courtroom. It worked. Eventually, 38 defendants were exonerated and Tom Coleman, the crooked cop who’d framed them, was convicted of perjury.

Not only were several significant pieces of legislation passed as a result, in 2006 we achieved the Holy Grail. Governor Rick Perry eliminated all funding for the task forces. When the Tulia drug stings happened, there were 51 of these things around the state employing more than 700 narcotics officers and making between 12-14,000 arrests per year. Fifteen years before anyone coined the phrase “defund the police,” we wiped them off the face of the earth.

Soon after that, Jeff founded the Innocence Project of Texas and I became their policy director. Once again, organizing exonerees to advocate for themselves was a central strategy, only this time Jeff was an enthusiastic supporter. I’m incredibly proud of that work, and I know Jeff was, too, but since Cory Session is going to talk more about that era in a moment, I’d like to pivot to another subject.

Since Jeff passed, a line from a pop tune by Lizzo has been ringing in my head. In one of her early songs, she asked: “Why men great till they gotta be great?” That applies to most men, but to me, Jeff was the opposite. Day to day, if we’re honest, Jeff wasn’t always that great. He was a curmudgeon; obstinate, profane, prickly, blunt. He was challenging to work with and five failed marriages tells you he could be a challenging person to live with. By saying that, I’m not telling you anything Jeff hasn’t said himself many, many times.

But when the time came that someone’s “gotta be great,” Jeff always stepped up. Every time. He thrived and excelled in those big, high-pressure moments and at crunch time was always his best self. That’s rare and part of what made him special. It’s certainly why he merited a massive, front-page obituary in the Houston Chronicle: Jeff’s work benefited many, many thousands of people all over the state. No other lawyer has had as big an impact on the Texas criminal-justice system in my adult lifetime.

Now that he’s gone, those of us who knew and loved Jeff and believed in his work incur an obligation. Leaving here today, all of us going forward will find ourselves in situations where we think, “If Jeff Blackburn were here, he would do X.” This knowledge creates a moral obligation. With Jeff no longer here, when you recognize a situation where you know he would have stepped up, that means you need to do it. That’s the best way we can honor his memory. The people in this room are a powerful force, and Jeff has given us a powerful example. My prayer is that everyone here today can find the courage and the will to follow it.

More of Jeff Blackburn on Grits:

Friday, October 14, 2022

Texas prison baseball league was shockingly well-developed

While I've been away from the blog recently, much of my time has been spent on a side project researching negro-league baseball in Texas, exhuming the Austin Black Senators' history from the fog of segregation and media bias. But in Texas, everything comes back to the justice system, and baseball historian Bill Staples, Jr. schooled me today on an aspect of the Texas prison system I never knew about: It used to have its own baseball league! Every unit fielded teams which played in an annual, 14-week pennant race. 

Baseball leagues 70 years ago were referred to as "loops," and according to this fascinating 1950 assessment of Texas prison recreation programs, the Texas prison "loop [was] divided into two divisions. Units situated south of the United States Highway 90A play in the southern division, and those north of the highway comprise the northern division."

Team names were as follows. In the southern division: Ramsey 1 Hardhitters; Ramsey 2 Monarchs; Darrington Devils; Retrieve Snippers; Ramsey Builders; and the Clemens Cats (aka "Panthers"). The northern division consisted of the Eastham Buffs; Wynne Cobblers; Walls Tigers; Walls Black Tigers; Central 2 Cubs; and the Harlem 1 Red Socks. N.b. that the Walls Unit had segregated squads.

Occasionally, perhaps ringers would come on the scene when some professional athlete would get into trouble

Teams played a series with each other team in the division, and the two with the highest winning percentages were declared pennant winners, earning them the right to face off against each other in an end-of-season, 3-game championship series. Sometimes, papers would even publish box scores of the games.

Among the league rules: "an escape by any member of a baseball group during the season of the sport can bring suspension of the entire ball club for the remaining season."

It appears prison baseball existed in Texas even earlier, but the league/pennant format was created in 1949. Staples found reference to the Walls Tigers Cyclones* from 1930. In the first half of the twentieth century, prison baseball appears fairly widespread. In Wyoming, even death row inmates played on baseball teams.

At the Texas Prison Museum, according to Texas Highways magazine, there is:

a large display case with baseball uniforms, team photographs, and game programs from the prison baseball team, the Huntsville Prison Tigers. Prison officials organized the team and built a ballpark in 1924. The team played area semi-pro teams until they disbanded in 1943, a casualty of budget-tightening during World War II.

We know they didn't disband permanently in 1943 because teams were still active in 1950, but the construction of a prison ballpark in 1924 likely marks the beginning of the program. Corroborating this timing, on Feb. 24, 1924, the Fort Worth Star-Telegram ran a short item titled, "Prisoners seek equipment for baseball team," declaring the  Ferguson State prison farm at Midway "has a group of good ball players and will organize a team if the equipment is forthcoming." Donations sought included "Gloves, a catcher's mitt, mask, [and] baseballs," adding that, "When the team is organized it will play amateur and semipro teams in the vicinity of Midway."

According to the 1950-prison-rec-program assessment,  wardens could approve exhibition games on Sundays in addition to league-scheduled contests. Some of these were played before free-world crowds. This flyer from 1942 advertised a baseball game between prison-system all stars and the Southern Select, an "All Mexican Team From Houston." Admission was 25 cents and included entertainment by the "Prison Military Band."

In general, recreational activities seemed more widespread and salutary than TDCJ supports now:

The major activities, which are open to all inmates of good behavior, include competitive sports, such as baseball, volleyball, boxing, tennis, and softball; individual physical activities, such as horseshoe pitching and washer pitching; social games, such as checkers, cards, and dominoes; recreational reading; an annual rodeo; musical activities, including; a weekly radio broadcast; crafts; and motion pictures.

The prison rodeo, begun in 1931, funded a portion of the recreation budget, likely including the baseball league. 

In 1934, prisoners tried to stage an escape while staff were distracted by a game between the Humble Oilers and the Walls Tigers:
The inmates were leading 5-1 in the 9th inning when all hell broke loose. Suddenly and without warning, gunfire came from the over the walls of the prison. It sounded like a war had begun. Guards yelled and threatened the convicts to hit the ground. All inmates went belly down immediately. But in the stands it was pandaemonium. Everyone there scattered wildly in all directions away from the Walls.
There's an entire, book-length account of this escape attempt, which did not involve any of the baseball players.

Given the success of the baseball league competitions, which were the most popular sport among inmates at the time, a suggestion was floated that, "Inter-unit boxing tournaments might be staged," though it's not clear that ever happened. On the other hand, I'd never have imagined teams from Texas prison units played in a baseball league and staged and annual pennant race, so who knows? 

These days, Texas prisons are so understaffed, prisoners are lucky if they get an hour in the rec yard: during COVID lockdowns, they often didn't even get that. They're not playing tennis, much less traveling the state to play baseball in front of paying, free-world crowds.

Still, it's also not like Texas was spending lavishly on prisoners in 1950. From the same report:

Texas taxpayers are getting off very lightly in the operation of the prison. Only two states in the Union spend less per man: Mississippi and Alabama. Texas spends about $310 per year per inmate. Many states spend more than $1,000 per man, while Connecticut tops the list with $1,468 spent on each prisoner in custody.

It's often said that budgets are values documents, and that applies here: Texas wasn't spending much on prisoners, but of what they spent, the state clearly prioritized recreation activities and prisoner well being more than today. The MLB Hall of Fame has a web page on "Baseball Behind Bars" describing early teams at Sing Sing in New York, and its conclusion sums up the values that might prioritize spending tax dollars to create sports leagues for prisoners:

It might be easier to write off all of this coverage of prison baseball as media exploitation, but there is something to be said for the real, positive difference baseball made in the lives of the inmates who played on teams and in leagues while they served out their sentences. The Sing Sing baseball program received praise for the “spiritual change in the men” from the likes of Dr. Katharine B. Davis, the Commissioner of Correction of New York City in 1915. Baseball might be “just a game,” but as any fan knows, it is also one of the things that makes life enjoyable.

*Staples informs me the reference to the prison team he found from 1930 was the Walls "Cyclones," but by 1934, the Tigers were competing. It's possible there were already multiple teams by that time, or that the name changed at some point.

Tuesday, July 26, 2022

Reimagining History at the Austin Police Academy

For the past year, Austin has deployed a group of community folks and city staff to analyze the curriculum at the police academy and suggest reforms: It's not going well.

The community reviews material, makes recommendations, but little gets implemented. It seems at this point like the goal is to stall until interest dies down and no one notices that nothing ever got changed.

A case in point is a section on constitutional history that Grits wrote about last year. It turned out, the instructor largely based the curriculum on a book by a John Birch Society propagandist who authored a nutball history called "The 5,000 Year Leap" which was popularized after his death by right-wing broadcaster Glen Beck.

This text makes a variety of unusual claims, pretending the Founding Fathers intended to create a Bible-based government (no "separation of church and state" here) and that the Jamestown settlement represented the birth of free markets and private enterprise. Jamestown, of course, was a company town, the company was owned by a king, and the economy was built on slavery and indentured servitude. But the author, Cleon Skousen, was never one to let facts get in the way of a good, neo-fascist narrative.

My wife is on the review committee and she asked your correspondent to assess this section when it first came up in 2021. Grits quickly discovered that some of the weird, faux history came from the Skousen book, including various jingoistic graphics that I located via a Google Image search.

Grits purchased a copy of  "The 5,000 Year Leap" and it's a piece of work. Much of it was just strange, fundamentalist rambling and little of it is relevant to policing. Skousen concocted 28 "principles" he claimed the Founding Fathers adhered to, but they're his creation, and more a reflection of the views of the hard-right edge of modern religious conservatives than any consensus held by the founders.

The latest version of the Austin police academy training eliminated much of the most explicit, ideological aspects from the book but kept the focus on pre-Constitutional history Skousen promoted, leaving the new version an odd and decontextualized shell of its former self.

The city staffer assigned to lead the review, Anne Kringen, pulled this course from the committee's review list last year, saying they wanted to make changes and come back with a better version. But before the review could occur, the same instructor taught this similar but stripped down version to cadets. 

Cadets were once again taught obscure details about colonial history, starting with the birth of free markets in Jamestown and emphasizing selected aspects of the Articles of Confederation and the Connecticut Compromise, but not the aspects you might expect. The lesson plan and power point contained no mention of slavery, the 3/5ths Compromise, the Fugitive Slave Act, gender-and-property-requirements for voting, or any discussion of the interests of southern slave owners which dominated that document's formulation. 

Just before the curriculum was taught this summer, they asked a UT law prof, Andrea Marsh, to assist. She was called in at the last minute and not in any way involved in developing the history section taught to cadets. Andrea taught the final part of the constitution section, which is quite straightforward, accurate, and easily the only useful or valid part of any training cadets received on this topic. 

Kringen did not inform Andrea why she was brought in, did not tell her about concerns with the John-Birch-Society-themed historiography, and never mentioned Cleon Skousen or "The 5,000 Year Leap." Andrea told my wife she found the history "weird" and didn't understand why it was being taught to cadets.

When Kringen was asked why this was still going on, her response bordered on gaslighting. She claimed Andrea had performed an "evaluation" of the APD instructor's teaching, which was patently false. Andrea sat in on the class the day he taught, but had no input into the content and did not perform any kind of "evaluation." Moreover, because she wasn't told about the concerns with sourcing or the Bircher orientation of the instruction material, she had no context to understand what she was hearing, though she certainly could tell it had little to do with policing.

Kringen told the group it was "unfair to disregard Andrea’s evaluation and my decision to get her perspective and share it with the committee by characterizing it as being an attempt to validate anything." But again, Andrea made no "evaluation." She just sat through a "weird" lecture that seemed irrelevant and inappropriate to teach to cadets.

Kringen tacitly acknowledged this, saying Andrea thought, "some of the time spent on history could be better utilized. Her suggestion to improve the class would be to reduce the time spent on pre-Constitutional history and focus more on the [state-licensing-agency-required] bullet points." Of course, getting rid of the "weird" history rooted in Bircher ideology and focusing on actual police training was what the committee asked for a year ago. But that was not done.

Kringen still insists the same instructor should continue to teach the class and, in practice, completely defers to instructors as to what changes should be made to the curriculum. At this point, it's fair to say nothing substantive can or will change as long as that's the process.

I don't know Kringen so Grits cannot say whether this is an example of overt bad faith on her part or if she is simply disempowered in the process and police-department brass won't let her fix what's wrong. But it doesn't really matter which it is, the results are the same.

If the curriculum review can't get this fixed, it's hard to imagine anything will change regarding police training in Austin.

Clearly, that's exactly how the Austin PD brass wants it.

Monday, July 04, 2022

#CJreform Movement Poorly Positioned to Confront Re-Criminalized Abortion

During my three decades working on criminal-justice reform, when abortion came up, your correspondent always took the attitude, "That's someone else's job." Not anymore. As of last week, abortion became a criminal-justice issue in Texas, full stop.

The US Supreme Court's abandonment of Roe vs. Wade -- combined with a decision last year by Greg Abbott and the Texas Legislature to re-affirm criminal statutes on abortion from the 1925 Penal Code, if and when Roe ever fell --  suddenly have dumped the abortion question back into the realm of criminal law. 

SCOTUS decided Roe v. Wade when I was four years old, so I've never known a world in which the criminal courts managed women's reproductive choices. Thus it's easy to forget that the Wade in Roe v. Wade was Henry Wade, the Dallas County District Attorney,* and that for a century-plus before that, both obtaining and assisting with an abortion were crimes for which people were arrested by police, charged by prosecutors, sentenced by juries, and imprisoned in the same facilities as murderers and thieves.

Statutes banning assisted or intentional miscarriages were on the books in Texas from at least 1854, before being updated to include the word "abortion" in 1907 and then codified into the Penal Code in 1925. Attorney Doug Gladden goes through that statutory history here

Gladden identified 40 abortion convictions in Texas appellate records: 24 before 1925, 16 of which were reversed, and 16 from 1925 to 1971, of which five were reversed. Some cases may not have been appealed, and records may not be complete, but even so, this tells us abortion statutes weren't frequently enforced. 

What they did do was prevent most legitimate, trained doctors from performing them. In Greenville, for example, in 1905, a black doctor was arrested for performing an abortion on an 18-year old girl. In 1907, a physician was prosecuted in Haskell, TX, for performing an abortion on his 13-year old sister-in-law, who had been raped. In El Paso,  Dr. Andrea Reum, whose husband was also a medical doctor, was prosecuted after performing an abortion on a young black woman. She was a rich society lady who wore fashionable gowns and diamonds while incarcerated in the county jail. 

The earliest case I found reported in Texas newspapers was n 1890 in Comanche, when a medical doctor was arrested for performing an abortion. Charges were later dismissed when the victim refused to testify.

Such episodes were widely publicized in the press and sent a message to physicians that performing abortions would cost them their licenses. In 1919, the Legislature passed HB 235 making that official, requiring license cancellation by the state medical board for any physician found to have given a criminal abortion.

The Amarillo Globe News in 1960 cited local physicians' concerns that the abortion ban forced women to have "do it yourself" abortions, and reported that most women seeking the procedure were married.

Forbidding safe abortions didn't mean women wouldn't pursue unsafe ones, en masse. By the time of Roe v. Wade, the practice had become widespread. According to the Fort Worth Star-Telegram, in 1966 an estimated one million women had criminal abortions, and 8,000 of them died as a result.

By contrast, in 2021, the Guttmacher Institute estimates about 930,000 women had safe, medical abortions, though the US population is much larger than in 1966. So legalizing abortion empirically didn't make their number increase; it only made things safer and less threatening for women and the nurses and physicians brave enough to help them.

If it's true that abortions were more prevalent under a criminal sanctions regime, from a policy perspective, re-criminalizing greatly increases the harm without achieving the desired result.

The other big intersection of criminal law and abortion rights in the wake of the Dobbs opinion arises for women under supervision of the justice system: Either out on bail or on probation or parole. Whether these women will be allowed to leave their jurisdiction to get an abortion will be decided on a judge-by-judge basis: Some will routinely allow it; some never will. This will create a patchwork of policies as well as massive incentive for defendants to lie to the courts and abscond.

Presently, because this hasn't been an issue the criminal-justice system dealt with in more than a half century, there's no criminal-justice reform group obviously well-situated to confront these questions. The ACLU will step up, one assumes, but they're being pulled in a million directions and don't have a winning track record on these topics. Meanwhile, abortion-rights groups who one would anticipate would be most aggressive haven't dealt with the justice system in a half century and will have a steep learning curve. Grits fears that neither the abortion rights movement nor the #cjreform movement are well-positioned to confront what's coming next.

MORE: A slightly expanded/edited version of this post was published in The Texas Observer.

* An earlier version of this blog post said Henry Wade was Harris County DA. He was DA in Dallas County. I regret the error.

Saturday, March 26, 2022

Custodians of History: Old prosecutor files include marginalized voices usually excluded from public media and discourse

Conversations about crime data and police and prosecutor files most frequently pertain to the news of the moment: Did bail reform cause crime to increase? Was this or that police officer held accountable? Are black folks disproportionately stopped for traffic offenses?

But lately your correspondent has undertaken a research project reminding me that these records have much greater value than just informing policy debates of the moment. In many cases, they're the only records available involving important historical people and events. District Attorney and police agencies are among the earliest, continuously operating government departments, and case files are a rich source of detailed, local information.

This is especially important when mainstream information sources about marginalized people are scarce. For example, in New York City, prosecutor records were used to document the early 20th century exploits of an undercover policewoman investigating abortion doctors. Wrote one of the authors of that investigation:
These files record the lives of marginalized populations, often silenced in the historical record. Poor New Yorkers, women, immigrants, queer residents, and people of color, whose lives might have evaded contemporary published material but whose voices appear -- albeit refracted through the justice system -- in these archives.
We're finding that's true in the historical stories I'm researching centered in East Austin. Researching black history in Texas from the 1920s and '30s is a tremendous slog: only a few editions of the main black newspapers remain, and the white press largely ignored black news, sports, and culture. But many of these same people interacted all too frequently with the justice system. To the extent their voices can still be discovered at all, often it's only "refracted" through that ignominious but invaluable lens.

After 75 years, Texas state law eliminates most confidentiality restrictions and discretionary authority to withhold release on criminal records, making them technically public. But most DA's offices don't treat them that way. Here in Travis County, my wife and I recently filed an open records request for files from the early 1940s. The Travis County DAO initially replied that they intended to deny disclosure under all the "discretionary" exceptions they could identify. 

We appealed the matter, pointing out that the Public Information Act doesn't afford them any of those discretionary exceptions. The DA agreed, and supposedly we'll get those records soon. But what's really needed is for prosecutors to develop written policies about record retention and release, then to migrate files to local archivists better trained to handle and preserve them. 

What kind of records are we talking about? Certainly, it differs case by case. But we have lots of examples because, in 2009, then-Travis-County-District-Attorney Ronnie Earle transferred 35 boxes of records, mostly from the 1940s and 1970s, to the Travis County Archivist, which also retains old records for the constables offices, the probation department, and other county law enforcement agencies.

The transfer of these 35 boxes appears to have been a one off. The archivist said there was something in the database about concerns that the files were deteriorating wherever the DAO stored them before. Regardless, they're now all sitting on a shelf at the archivist's office on Airport Blvd.

Kathy and I went to review several of these boxes to see if they contained files related to the now-long-deceased people I was researching. They did not. But Kathy noticed these documents in an unrelated case in which prosecutors adamantly struck black jurors in red pen:

Here's another example:

I'm not a lawyer, but I'm pretty sure these aren't Batson-approved jury-selection practices. After I posted these photos on Twitter, I got an email from the Travis County DA's first assistant saying she'd referred it to their Conviction Integrity Unit! Bully for them.

This naturally spurred my curiosity. This was a case I was neither looking for nor familiar with, but I'd snapped a photo of the caption and cause number:

It turned out to involve a man named Arthur Raven and a codefendant, Audrey McDonald, and would have been an extremely high-profile case. (Long-time readers will recognize a pattern: the higher-profile the case, the more likely somebody cuts corners to secure a conviction, as with this jury-selection process.)

Raven, a white man, was the first football coach at Reagan High School when it opened in 1965 and from the beginning was highly successful, winning three 4A state championships in 1967, '68, and '70. Reagan was a predominantly black high school, built to replace the old L.C. Anderson HS, which closed in 1971. After his third state title, Austin ISD elevated Raven to become athletic director district-wide.

His son, Arthur Jr., was a Texas Department of Public Safety trooper. In 1972, he  attempted to capitalize on name recognition from his father's success to run for Sheriff against 20-year incumbent T.O. Lang. Lang was a "Shivercrat," a conservative Democrat who'd spent World War II as Austin PD's liaison with the FBI hunting subversives. After the war in the late '40s, he was an APD homicide detective before running for office.

To this day, no one ever held that position longer and, after two decades, lots of people thought it was someone else's turn.

Also running against Lang in 1972 was Raymond Frank, a leftie reformer attempting to capitalize on the same momentum that ousted a wave of right-wing Texas Democrats at the Legislature following the Sharpstown banking scandal. Insiders blamed Raven, Jr., when he split the traditional law-enforcement vote, allowing Frank to push Lang into a runoff. Lang lost. And his allies were furious.

Once in office, District Attorney Robert O. Smith almost immediately turned his sights on Frank. A grand jury under his direction issued a report critical of the new Sheriff. Frank turned around and accused Smith of corruption and manipulating the grand jury.

Arthur Raven, Sr., was accused of coercing prostitution while all this was going on, but convicted of a lesser, misdemeanor charge while the jury acquitted his codefendant. We didn't read the whole prosecutor's file, just this portion concerning jury selection. But news accounts say Raven took the stand in his own defense, testifying most of the day as the defense's only witness. Your correspondent hasn't done enough research to form an independent opinion, but Raven certainly thought he was being railroaded.

Was Smith retaliating against the old ball coach because his son's campaign helped the DA's nemesis get into power? Grits has no first-hand knowledge. But I bet I'm not the first person to imagine so.

To be clear: I haven't read the file and just snapped a few photos and read a few news clips. I don't know who was in the right in these controversies, whether Arthur Raven, Sr., was guilty, or if his prosecution was politically motivated. But this glimpse into the historical record shows how important these old files can be to interpreting past events. Knowing prosecutors went to unethical lengths to exclude black people from Raven's jury is an important part of that story that would remain hidden if one relied only on news accounts.

In 2009, Ronnie Earle (God rest his soul) thought it was fine to make records from the 1970s public at the Travis County Archivist. That policy should be formalized. It's a waste of scarce resources at the District Attorney's office for lawyers to review every request. Better to pass that task along to library-science professionals employed precisely to perform these tasks.

I'm looking forward to receiving the records we requested, which I have no doubt will answer a long list of nagging questions surrounding the historical research Grits has been working on.

Once we get them, the next step is for the DA's office -- eventually, for every DA's office -- to develop written policies for retention and release of historical records. We hear a lot about police and prosecutors as custodians of public safety. They should also be recognized as custodians of history, and behave as such.