FIRST-STEP opposition shows why partisanship is the bane of criminal-justice reform

Just Liberty this week will launch a new action alert asking Texas Sen. Ted Cruz to support the federal FIRST-STEP Act, which regrettably puts us at odds with some national reform groups like the ACLU and the Leadership Conference (now headed by our old pal Vanita Gupta, lately of Obama-Administration fame).

Other #cjreformers like Families Against Mandatory Minimums, the #Cut50 campaign, and Right on Crime support the measure.

Decision Time
As Just Liberty's Policy Director, I had to make my own assessment. And from a #cjreform perspective, it's impossible not to conclude that FAMM and #Cut50 are right on this one and ACLU and the Leadership Conference are letting partisanship impede doing what's best for prisoners.

The main criticism of the FIRST-STEP Act is that it doesn't go far enough, failing to embrace sentencing reform measures which would more fundamentally confront federal mass incarceration trends. Here's how a San Antonio Express-News editorial described those complaints:

Progressives are sharply divided on the measure, mostly because of what it doesn’t do. The bill — sponsored by Reps. Hakeem Jeffries, D-N.Y., and Doug Collins, R-Ga., and strongly pushed by President Trump’s son-in-law and adviser, Jared Kushner — does nothing to address the main problem, which is that this nation sends far too many people to prison and keeps them locked up far too long. 

Truly meaningful change would involve sentencing reform, for which there is some bipartisan support in Congress — but not enough to get such legislation through both chambers. It is hard to imagine that Trump, who tries so hard to project a tougher-than-thou image, would sign a bill significantly reducing sentences. And Attorney General Jeff Sessions, who believes in throwing away the key, would have a conniption fit. 

The First Step Act ignores the “front end” of the problem — sentencing — and focuses exclusively on the “back end.” It would provide $50 million a year for five years in new funding for education and rehabilitation programs in federal prisons, encourage inmates to participate in those programs by giving them credits for early release, and allow some prisoners to serve the balance of their sentences in halfway houses or home confinement.

Good > Perfect
So our liberal friends don't oppose the things in the bill so much as they think OTHER things should be in there. In other words, they're allowing the Perfect to become the enemy of the Good. Grits supports sentencing reform, too, and I wish it were included in the bill passed by the House. Those national groups are not wrong to insist that it's needed.

But this is not a sentencing reform bill. OTOH, on the issues it does address, most of them are modest improvements over the status quo.

In Texas, that's always been my threshold for whether to embrace reform. "Is it an improvement over current law?" If yes, don't oppose it unless it harms somebody. By that standard, supporting the FIRST-STEP Act is a no-brainer.

Indeed, thanks to changes in how good time is calculated, there are 4,000 people who would be released immediately if the law is enacted. Without the bill, they stay locked up.

That, to me, is where Grits parts ways with Gupta and Company: I'm not willing to tell an incarcerated person - much less 4,000 of them - that they should spend more time in prison because IMO some bill doesn't go far enough. These liberal critics aren't the ones doing the extra time!

How incrementalism works
Partisans ensconced in D.C. gridlock fail to understand some of the lessons on bipartisanship we've of necessity learned in Texas: Getting folks from both parties to support a modest reform today can help persuade legislators to do more later once they see the public reaction and find that there's no backlash, or at least that it's survivable.

For example, in Texas, former House Corrections Committee Chairman Ray Allen passed legislation in 2003 mandating probation on the first offense for low-level drug possession cases, diverting a few thousand people from Texas prisons. He was challenged in 2004, called "soft on crime" by his chief political opponent, but won anyway. After that, and really, because of that, legislators felt comfortable embracing bolder decarceration reforms in 2005 (vetoed), paving the way to pass the ambitious 2007 probation reforms championed by Sen. John Whitmire and Rep. Jerry Madden. Members needed Chairman Allen's electoral example to see that, if they stuck their necks out, they wouldn't get them cut off! (For more background, David Dagan and Steven Teles described these episodes in their book, Prison Break.)

While there's still far to go, over time this approach has made a significant dent in mass incarceration in Texas, symbolized most prominently by the closure of eight prison units, including four closed during the most recent legislative session.

Similarly, if Congress were to pass the FIRST-STEP Act and Republican legislators were to discover in November that they received credit for its passage instead of blame, that will make them more likely to vote for sentencing reform in the future. That truly would be a "first step." Big ships turn slowly, and the slowest to turn of all vessels are ships of state.

It took decades to build America's carceral state, there aren't going to be any quick, one-bill fixes. And future fixes become less likely if liberals blow up efforts at #cjreform bipartisanship.

Why multi-issue groups are the bane of #cjreform
But maybe the real issue is Democratic partisans who don't want Republicans to get credit for something good while they see those same Republicans on the opposite side on other debates that they care about. To that extent, splits on the left over the FIRST-STEP Act point to another problem that's plagued justice reformers since your correspondent got into the game back in the 1990s: Multi-issue groups will always sell out a #cjreform agenda when it conflicts with other liberal goals, in particular on pro-choice, gay-rights, environmental issues, and increasingly in the Trump era, immigration.

Many Democrats oppose the FIRST-STEP Act simply because they don't want to give President Trump " a win." To me, that's flat-out unpatriotic, no less so than all the Republicans in Congress who considered it their mission in life to see President Obama fail. (It may sound corny, but I want America to succeed, even under President Trump.)

It's also politically inept. Politics is the art of the possible, and while Republicans control Congress and the presidency, this is what's possible. In poker terms, take the chips on the table and live to play another hand.

If Democrats want US policy to go further, win some damn elections. But if this bill was proposed under a Democratic administration and Congress, these same groups would all support it. It's hypocritical and counter-productive to oppose it now.

"Isolated incident" at TDCJ means things that happen to lots of people all the time

Not long ago, Grits parsed statements from Texas Department of Criminal Justice spokesman and concluded that his consistent pattern of responding to systemic problems with claims that they're "isolated incidents" amounted to a "practice of deflection and deception," corrorborating what a whistleblower called a "culture of coverup" at the agency.

Here's a good example: An article by the indefatigable Keri Blakinger at the Houston Chronicle - focused on a major and three guards who were indicted for planting evidence on inmates and then filing false grievances - included a reference to this now-routine, "isolated incident" response:

A Texas prison spokesman last month called the screwdriver-planting scheme an "isolated incident." Since then dozens of inmates and their families have reached out to the Chronicle, the Office of the Inspector General and Texas Inmates Families Association with similar allegations. 

"Officers planting drugs, weapons, and other forms of contraband is a fairly regular occurrence in TDCJ," one inmate said, after detailing another alleged evidence-planting incident he says he witnessed at Ramsey Unit. 

In the past five years, there have been more than 75 arrests or charges of tampering with evidence or records filed against TDCJ officers, records show. That figure only includes cases investigated by the Office of the Inspector General, and it doesn't indicate how the cases were ultimately resolved.

Sound like an "isolated incident" to you?

The agency lessens its credibility when it responds to legitimate criticisms of systemic failures by scapegoating the lowest level individuals instead of accepting accountability for things that go wrong.

This is why advocates have called for independent oversight at the agency, a point made in the story by Jennifer Erschabek of the Texas Inmate Family Association:

"We've been fighting for independent oversight for years and haven't been able to get any traction," said Jennifer Erschabek of the Texas Inmate Families Association. "They always say there's the ombudsman, the House Corrections Committee, the Senate Criminal Justice Committee, the board - but that's never been effective for us because we never get the transparency or accountability we need on these issues. It takes the news media to get to the bottom of this and get to facts."

Crime still plummeting; juvie arrests down 57% in TX since 2010

In May's Reasonably Suspicious podcast, we discussed the remarkable decline in DWI and public drunkenness arrests statewide in Texas over the last few years, but it turns out that's part of a broader trend. Arrests of all types have declined a lot.

DPS arrest data is only available through 2016, but from 2010 to 2016, the number of adults arrested  in Texas dropped by 26 percent, from more than a million to 759,000, falling more or less in tandem over the period with the reported crime rate.

Juvenile arrests in Texas declined even more, dropping an eye-popping 57 percent over the same period.

The percent reductions in DWI and drunkenness were even greater for adults, so those charges are a leading cause of the statewide decline. But the reduction in overall arrests tells us this is a bigger trend, not just an issue related to alcohol consumption.

As I'd mentioned on Twitter, polls show most Americans believe crime is increasing, despite these remarkable trends in the opposite direction. Indeed, not only have crime rates fallen since 2010, they were falling for nearly two decades prior to that. Arrests didn't begin to decline until much more recently.

This reduces pressure on cities to hire more police officers, on counties to expand jail capacity, and ultimately reduces the need for the state prison system to keep so many units open.

That's bad news for local probation departments, the bail-bond industry, and the criminal-defense bar, all of whom see their revenue decline as a result. But for everyone else, there's nothing but a tremendous upside.

"Justice Needs a Platform" campaign updates, and notes from the Ophidian Uprising

If you enjoyed (or were creeped out by) the idea of "snakes on a plane," you'll get a kick out of this month's podcast intro focusing on an astonishing rash of snake-related law-enforcement stories slithering up out of the news mire in Texas over the last several months.

Shifting back to our regular, half-hour format, in the July episode of the Reasonably Suspicious podcast, cohost Mandy Marzullo and I discuss outcomes from Just Liberty's "Justice Needs a Platform" campaign, which aimed to install criminal-justice reform planks into the platforms of both major Texas political parties. You can listen to it here:

See also Grits' written summaries of Just Liberty's platform campaign results:

• Republican
• Democrat
• Areas of agreement

And check out special podcasts aimed at the GOP and Democratic state conventions interviewing conservative and liberal opinion leaders on why they supported criminal-justice reform planks in their party's platform. IMO the R podcast was particularly strong:

• Republican
• Democrat

Here's what's covered in this month's podcast:

Top Stories

• Just Liberty's "Justice Needs a Platform Campaign"

Death and Texas

• Do we need concussion protocols for criminal-defense attorneys?

Oddmakers

• How will bail reform proceed in Texas?
• A TN judged ruled revoking drivers licenses for nonpayment of debt to the government is unconstitutional. What are the chances this practice ends in Texas? (See related commentary from Texas Appleseed and the Texas Fair Defense Project, who believe, "A legal challenge similar to the one filed in Tennessee could be successful in Texas.")

The Last Hurrah

• SCOTUS: Cops need warrant to access personal cell-phone location data
• Do video games cause or reduce crime?
• How many felonies can Texans commit with an oyster? (redux)

Grits will add a transcript to this post later today.

$16 Billion in TX crimjust spending disproportionately goes to corrections

A new, quite user-unfriendly preliminary report from the Bureau of Justice Statistics on law enforcement expenditures and employment gives a 30,000-foot perspective of Texas and national criminal-justice spending.

Out of the total $283,554,687,000 that BJS estimates Americans paid for criminal-justice in 2015, here's the big picture breakdown of how it was spent:

Police: 47.8%
Judicial: 21.6%
Corrections: 30.6%

Texas, though, spent a greater proportion on "corrections" (basically, jails, prisons, probation, and parole) than the national average and less on our courts.

Police: 46.2%
Judicial: 17.8%
Corrections: 36%

The 2015 total spent in Texas on criminal-justice by state and local actors, according to BJS, was $16,004,955,000 - that's more than $16 billion, with a "B."

In terms of per capita spending, Texans paid $269.31 per person for police, $209.60 for corrections, and $104.40 per person to pay for the judiciary. Total per capita spending on the justice system was on the low side, with only a few southern states spending less per person.

In 2015, Texas had 55,700 sworn police officers out of the 719,422 nationwide, or about 8% of the national total.

More than 93% of those sworn officers were employed by local police departments and county sheriffs, with municipal PDs making up more than 2/3 of the total.

Critique of bail reform and public safety ignores best evidence

An odd editorial last month on the TribTalk site by Stacie Rumenap, identified as President of Stop Child Predators, titled, "Bail reform: A slap in the face to victims and survivors," deserves Grits' readers attention as an example of fallacious anti-bail reform arguments.

The whole article is premised on conflating violent sexual predators with the masses of low-level folk who cycle through the average county jail on everything from marijuana possession to driving with an invalid license. For example, she writes:

it’s my job to educate families on sexual assault prevention and to stem the tide of dangerous trends that allow predators to roam our streets and commit such grotesque crimes in the first place. 

That’s why I am surprised that proponents of bail reform are calling for changes that will make it easier for criminals to get out of jail and recommit crimes in Texas, a state that has historically remained “tough on crime.”

That "criminals" category cuts a wide swath, capturing rapists and pot-possessors in the same breath. But surely the public interest in detaining those two categories of offenders differs widely? Can we really make no distinction between them?

Rumenap further lamented that  "reformers are not taking into account the impact bail reform will have on victims of sexual assault, especially child victims of sexual assault. The silence has been deafening. Bail reform has resulted in widespread release of defendants without bail and without consequence, raising alarming questions about public safety."

Let's stop right there and say that, no, in fact the exact opposite is true! Public safety is probably the strongest argument for using risk assessments instead of money bail. The best reason to do it is precisely to have less violent crime!

The Public Policy Research Institute at Texas A&M studied the pool of released defendants in Travis and Tarrant Counties, which use a risk-assessment and money bail system, respectively, over three-and-a-half years to compare outcomes.

During that period, the study found, released defendants in Tarrant County were responsible for 20 percent more crimes committed and 12 percent more serious violent crimes. Here are the details (p. 49):

financial bond is less effective at preventing involvement in criminal activity. The rate of new offending stands at 13.5% in the financial release system, a rate 20% higher than in the risk-informed system (11.1%). Violent offending is also 12% more prevalent where people are released based on ability to pay – 2.7% in Tarrant County compared to 2.4% in Travis County. Of all offenses committed by people on bond, 50% more are violent felonies where release is determined by financial ability (7.5% versus 4.9% in the risk-informed jurisdiction). 

So more crimes were committed by pretrial defendants under the money-bail system, and a much greater proportion of those (50% more!) were violent crimes.

Perhaps most significantly, as Grits has noted before, there were zero murders committed by pretrial defendants under the risk-based system in Travis, compared to ~18 under a money bail system in Tarrant.

In other words, the best, Texas-based research found exactly the opposite of what Ms. Rumenap is claiming.

That's why anyone seriously concerned about public safety in light of these numbers should support risk-based bail reform. There may be other valid arguments against using risk assessments (e.g., they work best as part of a well-developed pretrial services system that doesn't everywhere exist). But the best public-safety arguments are on the side of reformers.

SEE ALSO: Responses on TribTalk to Rumenap's article from the Smart on Crime Coalition and Mary Mergler of Texas Appleseed.

Snopes on Harris County Fentanyl Story, Gross on Innocence and Misdemeanors, Conservatives for Justice Reform, and other stories

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

Austin cops said they shot a man because he fired upon them but he did not
Here's the story. He still faces aggravated-assault-with-a-deadly-weapon charges even though police now admit no such assault occurred.

Correction on fentanyl poisoning non-story not nearly as widespread as initial misinformation
Grits has been saying for months that the opiod epidemic in Texas is overstated compared to the problem of meth addiction and overdoses, and that hysteria over fentanyl is largely unwarranted here because the drug does not mix with the relatively impure black-tar heroin common in Texas and California markets. So I was not suprised to see Snopes rule that the fentanyl-soaked flyers touted by the Harris County Sheriff's Office as causing the hospitalization of a deputy was a bogus story. Though HCSO said "field tests" indicated fentanyl on the flyers, lab tests confirmed that was false. Laughably, HCSO said in a statement, "The Sheriff’s Office is also working to verify that deputies have access to the most reliable field testing kits available." Faulty field tests used by law enforcement in Harris County have been responsible for hundreds of false convictions, so don't hold your breath.

Unconstitutional to take away drivers licenses for nonpayment of debt?
In Tennessee, a federal court ruled it unconstitutional for state government to take away drivers licenses for nonpayment of debt. This could be a major sleeper issue. See coverage from AP and the New York Times.

Innocence and misdemeanors
Samuel Gross from the National Exoneration Registry has a short, new article out on innocence in misdemeanor cases, estimating the frequency at which innocent people are convicted of misdemeanors and discussing the reasons why these cases are seldom unearthed through routine court processes. With the exception of the Harris County exonerations based on erroneous drug-field tests, "Most of the [misdemeanor] defendants were exonerated either because videos that proved their innocence came to light after conviction, or because the police officers who testified that they had been assaulted were themselves charged with perjury, violence or other misconduct."

VT first state to "raise the age" beyond 18
Vermont became the first state to "raise the age" at which youth are charged as adults to 19 by 2020 for most crimes, moving it to 20 in 2022 under legislation signed by their Republican governor. MORE: From our friends at the Columbia Justice Lab.

On conservatism and justice reform
Several recent articles on the intersection of conservativsm and criminal-justice reform merit readers' attention. Check out, "Conserving Criminal Justice Reform" from the R Street Institute, "Where the Right Went Wrong on Criminal Justice" from The American Conservative, and "No More Pits of Despair," a column from the Washington Post about Jared Kushner and justice reform in the Trump Administration. In related, Texas news, check out the criminal-justice reform planks added this year to the Texas state GOP platform, here's where those planks agree with the Democratic platform, and here's a special, hour-long edition of our Reasonably Suspicious podcast interviewing Texas conservatives on various justice reform topics.

Study: Bad cops immune to criticism, need greater oversight, accountability

At Texas Standard, we find a report on a new study by Shefali Patil out of the UT-Austin business school proclaiming that police accountability activism causes liberal cops to become dispirited and do a lesser job than their conservative colleagues.

Basically, Dr. Patil and her researchers created four datasets: 1) They surveyed 164 officers at two agencies, then 2) had veteran police managers review body cam footage from those officers and score them. 3) They examined supervisors' ratings of 82 officers across four agencies. And 4) they ran a "time-lagged survey of 184 officers in a single agency."

Leaving aside the small sample sizes described there, and the VERY small sample sizes from which the opinions of subsets of officers would be drawn, as it turns out, the peculiar definitions of "liberal" and "conservative" may underlie the conclusions in this study. Here's what they were measuring when they say "liberal" and "conservative":

More-liberal individuals believe in creating communal relationships between authority figures, like employees, and the people over whom they hold power, while more-conservative individuals believe in maintaining the dominance of authorities and us-versus-them power dynamics

This, my friends, is a weird definition for conservative and liberal in 21st century America. And in the context of policing as a profession, it's not really a distinction between liberal cop and conservative cop but "good cop" and "bad cop."

If you're a cop who believes the sum total of your profession amounts to "maintaining the dominance of authorities and us-versus-them power dynamics," you don't understand your job and probably should find other employment.

Meanwhile, show me the police chief who is not interested in "creating communal relationships between authority figures, like employees, and the people over whom they hold power."  That's the goal of every well run department and if it's not, WTF?

It should also be mentioned that the conservative/liberal axis used in the study is more or less foreign to any common, political context in which those words are used. For example, when I googled "conservative ideology" and "liberal ideology," here were the top-of-page definitions which came up:

As a general ideology, Conservatism is opposed to the ideals of Liberalism and Socialism. Conservatism generally refers to right-wing politics which advocate the preservation of personal wealth and private ownership (Capitalism) and emphasize self-reliance and Individualism. 

Liberalism, political doctrine that takes protecting and enhancing the freedom of the individual to be the central problem of politics. Liberals typically believe that government is necessary to protect individuals from being harmed by others, but they also recognize that government itself can pose a threat to liberty.

One might bicker with the particularities of those definitions, but they certainly don't have much in common with the very particular axis of authoritarianism along which the study authors want to divide their research subjects.

The authors of the police study are describing an authoritarian mindset, not a "conservative" one. (Liberals, after all, can use government power to impose their authority, too.) On the "liberal" side, they're describing a "liberal" belief in civil society in the broadest, historical sense, not adherence to political liberalism, a Democratic voting history, etc.. They could have run voting records for their research subjects but did not. I'd be interested to learn how many "liberal" cops vote in Republican primaries.

So this study is really saying that authoritarians who have no business being cops in the first place don't really care when people criticize police, and it's only the folks who're trying to do a good job and feel unfairly criticized who become dispirited.

If true, that's still a problem. The police accountability movement needs to learn to create an atmosphere where good cops feel supported and the bad ones become dispirited and feel pressured to leave.

But failing to criticize bad cops won't change things, either, and neither will kowtowing to authoritarians who "believe in maintaining the dominance of authorities and us-versus-them power dynamics."

Neither does the study really tell us that "liberal" cops are more dispirited. Instead, the definition of "liberal" chosen is a euphemism for officers executing the mission statement of nearly every department in the country.

Instead, let me turn to where I agree with the study's authors: on what should be done to address the problem of authoritarian officers who are immune to public criticism. According to Ms. Patil:

“What I found in a related study is that when officers face these misperceptions, they actually perform better if they have standard protocols that they have to follow in specific situations.” 

But doesn’t giving workers more autonomy usually improve job performance? “Not in this case,” Patil insists. “Police officers with high autonomy often do worse.”

So less autonomy for police officers (read: stricter management, more oversight, greater accountability) is the researcher's prescription for solving the problem she's identified.

One doesn't have to buy into her definitions of "liberal" and "conservative" to agree with that. Campaign Zero and the Police Executive Research Forum think the same thing.

Harris bail ruling released, the problem with prisoner copays, and other stories

With journalists being shot, toddlers being snatched from their mothers' arms and required to fend for themselves in court, and a Supreme Court seat in play that will be filled by the Toddler-Snatcher-In-Chief, it's hard even for your myopic correspondent to focus attention on the Texas state and local criminal-justice issues that this blog primarily covers.

But lots of smart people much closer to the action are thinking and talking about those topics. So, taking my cue from the folks at the Capital Gazette who put out their paper the day after five colleagues were murdered, Grits will focus on my own job and give y'all the usual weekend roundup of criminal-justice topics, even if a big part of me would prefer to rant about those national stories.

Harris County bail ruling released
Yesterday, federal District Judge Lee Rosenthal released her revised ruling in the Harris County bail case, the Houston Chronicle reported. I can't find a copy online yet, but this is an important moment: Now, every county in Texas is on notice that they must give individualized bail hearings and can't simply rely on a bail schedule to decide whom to release. Most counties in the state use some version of the same system, so look for county-by-county chaos resulting in either a new legislative framework created for pretrial release in 2019, or else much more litigation as policies are changed through the federal courts county by county. Harris County has spent nearly $7 million in attorneys fees defending their unconstitutional system.

Reyna fires ADA for cooperating with FBI
In McLennan County, outgoing District Atttorney Abel Reyna fired one of his ADAs for allegedly sharing information with FBI investigators. Apparently in Waco, as at the White House these days, FBI investigators are now considered the enemy. We live in a weird historical moment, people, this is not normal.

DPS conflating traffic tickets and immigration enforcement
Texas DPS for the past two years has been sharing traffic ticket data with immigration authorities "to make it easier for federal authorities to deport those they suspect of being in the country illegally," reported the Houston Chronicle recently.

The problem with prisoner copays
Vice News has a story taking on the problem of requiring copayments from indigent Texas prisoners to receive medical services.

Deaths spur federal litigation vs. Galveston jail
The Galveston County Jail faces new federal litigation alleging that several recent inmate deaths resulted from sub-par medical care.

Commissary theft
A former Milam County Sheriff's Office captain has been convicted of stealing from the inmate commissary fund. She received probation, must pay $41,000 in restitution, and another $20K in fines and associated costs.

Picture this
Here's a nice story on Texas Court of Criminal Appeals Judge Bert Richardson's semi-pro photography hobby.

Asset forfeiture poster child
This story out of Indiana is a competitor for the all-time asset forfeiture poster child: A guy sells drugs for $225 and the state takes his Land Rover.

From the academy
Here are several interesting looking academic articles for Grits' reading pile which may also interest readers:

• The Innocence Movement and Misdemeanors
• Cracking Graham: Police department policy and excessive force
• What is the place of corrective justice in criminal law
• Safety from plea bargains' hazards
• Digital surveillance and preventive policing

Should the government give high-risk offenders gaming systems to reduce crime?

Regular readers will recall that Lt. Gov. Dan Patrick responded to the school shooting in Santa Fe by suggesting that Texas eliminate subsidies aimed at luring video game companies to the state. Grits responded by disputing the purported link between video-game violence and violent crime.

The more I think about it, though, I wonder if video games might be part of a solution to violent crime?

Here's an outside-the-box (but not the Xbox) suggestion for reducing crime that's cheaper than incarceration and gives authorities a better tool to help offenders comply with probation: Give young people at high risk of committing serious crimes gaming systems as part of probation terms and make taking them away a punishment for violating conditions.

Several different strands of thought led me to this idea, which I've not seen proposed elsewhere.

In recent years, we've seen pilot programs where law enforcement identified the people at the highest risk of committing violent crime and simply paid them not to. And it seems to work! Some of the methods for identifying the most high-risk folk can be pretty sophisticated.

At the same time, we've seen studies showing that youth playing violent video games (or really, any video games) tend to commit less crime because of the voluntary incapacitation effect: The kid playing Grand Theft Auto for hours doesn't have time to be out stealing my car.

(On Twitter, John Pfaff recently pointed to a paper showing a similar voluntary incapacitation effect related to violent movies.)

My personal belief is that the rise of video games and online entertainment caused a much greater proportion of the crime decline witnessed in the past quarter century than most observers have considered.

Young males through about their mid-to-late twenties are the highest risk population group for committing crime. This is also the group with whom video games are most popular.

So what if we combined these observations to create a correctional strategy? What if high-risk young male offenders on probation were given a PlayStation or Xbox and a few popular games when they went on supervision, and allowed to keep the equipment if they successfully completed their probation term?

I see several benefits:

1) The incapacitation effect: The more time these youth spend playing video games, the less likelihood they'll get into trouble.

2) Incentive for good behavior: Just like payment is a positive incentive not to commit crime in the pilot programs described above, access to a video game station is a significant incentive not break the law or violate probation rules, as well as to complete probation.

3) Tool to address rules violations: Similarly, taking access to the video game system away is a significant additional negative incentive, a tool that could be used to punish technical non-compliance (half of all revocations to prison from probation in Texas are for technical violations).

4) Economics: Gaming systems are cheaper than paying a monthly stipend, as in the above-cited examples, and the project could be scaled up more easily.

The complaint would come from people who say, "My kids don't have a Playstation, why should the government buy one for criminals?" But since the answer is so firmly rooted in public-safety goals - particularly if the tactic were reserved for the most serious, high-risk probationers - IMO it could be justified. We spend a lot of money already on these high-risk populations.

The same parental controls that keep young kids from accessing inappropriate stuff could be used to limit improper use of the system (contacting victims, etc.), and of course improper use could be punished by taking it away.

IMO this could reduce crime among the population eligible for the program and make it easier to get people to comply with their probation terms. The cost of each system is significant (~$300 + games), but a lot less than incarceration, and I bet under such circumstances the state could get a bulk-purchase discount.

This is a brainstorming post, not a fully formed policy suggestion. But as cost-effective public safety solutions go, this idea seems to check a lot of the boxes.

Abbott's veto of Good Samaritan legislation responsible for hundreds of preventable overdose deaths

Texas legislators continue to discuss the wrong problems when it comes to addiction and overdoses, focusing on opiod overdoses and fentanyl - which aren't as prominent here as in other parts of the country - when the bigger problem in Texas is meth. (Most fentanyl deaths involve mixing it with heroin, and the black-tar heroin sold in Texas and California is too low purity to mix with fentanyl.) 

Digging into the data, Texas' drug addiction problem is less deadly than in the hardest-hit parts of the country, and more focused on speed than smack. Nationwide, heroin overdoses now outnumber gun homicides as cause of death, but in Texas, murders continue to slightly outpace the total number of overdose deaths.

IMO this obfuscation of state-level trends is happening because legislators are relying on law enforcement as experts instead of addiction researchers and public health professionals. Texas DPS and other agencies are picking up national memes and touting them, even if they don't track with Texas' experience.

That said, I was pleased to see that the committee is considering one solution that Grits worked hard on a couple of sessions back: the Good Samaritan law Gov. Abbott vetoed at the end of his first session as Governor in 2015. Reported the Austin Statesman:

[State Rep. Four] Price said it’s possible lawmakers could craft a new good Samaritan law, which protects people who call police to report a drug overdose from prosecution for some offenses. A similar bill passed the House and Senate with wide support in 2015, but was vetoed by Gov. Greg Abbott because it did not “include adequate protections to prevent its misuse by habitual drug abusers and drug dealers.” 

New data presented by the Texas Department of State Health Services on Tuesday showed similar laws in other states have resulted in as much as a 15 percent drop in opioid overdoses in the past five years, despite nationwide increases. The laws also do not appear to increase the number of drug users, the data shows. 

“It indicates that there is some effectiveness if implemented and crafted effectively,” Price said. “That is something we should continue to review.”

Keep in mind that there were 1,254 overdose deaths in Texas in 2016 - 715 from meth and 539 from heroin. If a Good Samaritan law would have reduced that number by 15 percent, that means 188 people died that year because of Governor Abbott's ill-considered veto! That means hundreds of  lives would have been saved by now if Gov. Abbott had signed the law in 2015.

IMO, vetoing the Good Samaritan bill was one of Greg Abbott's worst decisions as Governor.

Exploring areas of #cjreform agreement between Texas Dem and GOP state party platforms

So, the results of Just Liberty's "Justice Needs a Platform" campaign are in and - having adumbrated reform measures in the criminal-justice sections of both the Republican and Democratic Texas state party platforms, including separate podcasts focused on reform planks proposed at each convention - let's take a look at areas where the parties agree.

 Before we do, though, just to get you in the mood, give a listen to Just Liberty's jingle created promote #cjreform in Texas' major-party platforms. (After the last couple of weeks, this ditty has been running through Grits' head near constantly.)

Having now established the proper atmosphere, here are the major areas where agreement between the two parties points to possible #cjreform legislation.

Raise the Age

Both parties agreed that Texas should raise the age at which youth are prosecuted as adults from 17 to 18 years old. Texas is one of only four remaining states that charge 17-year-olds as adults. When a couple of members of the GOP platform committee voiced opposition to the idea, another member I'd never met shut them down with references to brain science and research on child development. It was an impressive moment, because some of my Democratic friends like to claim that the GOP reflexively opposes science. On this topic, though, the platform committee voted pretty overwhelmingly to better align policy with scientific thought. The Texas House has twice now passed measures to make this change, with the Lt. Governor and the senate so far blocking it. Such explicit, bipartisan support could be a game changer.

Marijuana policy
Here's an irony: At the Texas Legislature, the only person ever to propose marijuana legalization was Republican state Rep. David Simpson, who wanted to "treat it like tomatoes." The furthest a Democrat has gone is state Rep. Joe Moody's bill proposed the last two sessions to make pot possession a civil offense punishable with a ticket. In the party platforms, though, those positions are reversed. Democrats favor full-blown marijuana legalization (they're already spending the tax money!), while Republicans essentially endorsed Moody's bill: "We support a change in the law to make it a civil, and not a criminal, offense for legal adults only to possess one ounce or less of marijuana for personal use, punishable by a fine of up to $100, but without jail time." On this topic, Just Liberty followed the lead of the indispensable Heather Fazio from Texans for Responsible Marijuana Policy, who has been pushing for these platform planks since 2014. The GOP also approved a platform plank promoting expanding the use of medical marijuana to more ailments and called on Congress to change it from a Schedule 1 to a Schedule 2 drug. (Your correspondent isn't completely clear on the difference, but as I understand it the change would allow more medical research.)

Cease arrests for Class C misdemeanors
Both Texas state political parties included platform planks suggesting law enforcement should stop arresting people for Class C misdemeanors for which the punishment is only a fine, not jail time. On the GOP side, the plank read simply, "We call upon the Texas Legislature to end the practice of jailing individuals for offenses for which jail is not an allowable consequence under the law." (Under Texas law, those are Class C misdemeanors; Class Bs are punishable by up to 6 months in jail.) The Democratic version calls for, "legislation that requires people suspected of minor, non-violent misdemeanors be issued summons to appear in court rather than placed under arrest," and ending "the practice of arresting individuals for offenses that call for a citation." Sandra Bland's case was prominently discussed in both party's discussions on these planks. Readers may recall that a similar provision was removed from the "Sandra Bland Act" passed in 2017. During debates over that bill, it came out that a whopping 11 percent of all arrests in Harris County are for Class C misdemeanors, a proportion possibly boosted because of intake screening practices by the Harris County DA. State Reps James White and Garnet Coleman filed legislation to make this change last time, along with Senators John Whitmire and Konni Burton. This could be a bipartisan bill that comes back and passes.

Eliminate the Driver Responsibility Program
For the first time, planks calling to get rid of Texas' Driver Responsibility Program made it into both party platforms. The GOP platform reads, "We call upon the Texas Legislature to abolish the Driver Responsibility Program and immediately restore the driver licenses of the citizens whose licenses were suspended by the DRP and to cancel their debt." Sounds good to me, how about you? Democrats, by contrast, focused on the issue in the health care section, calling for "stabilizing trauma center funding by repealing the Driver Responsibility Program fees, which many Texans cannot afford and never pay, and replacing the funding other budgetary means."

Require criminal conviction to seize assets
Both parties endorsed eliminating civil asset forfeiture, requiring a criminal conviction beyond a reasonable doubt before the government can seize someone's property. This issue seemed to have momentum in 2017, but was mainly pushed by conservatives and embraced by Republicans. Its inclusion in the Democratic platform may help to give it a little extra bipartisan oomph.

Require written or recorded consent for roadside searches
Both parties endorsed legislation to require officers to get written consent to search a motor vehicle if they don't have probable cause and consent is not recorded by a body-or-dashboard-camera. Essentially similar legislation passed in 2001 and was vetoed by then-Gov. Perry, who also vetoed weaker legislation on the same topic in 2005. Now, with a different governor and bipartisan support, this common-sense policy may have new legs. Honestly, in the wake of the Sandra Bland episode and given the broad-and-deep array of 21st century police reform proposals our there, this idea that seemed (and was) controversial back in 2001 today looks almost like a no-brainer and relatively small potatoes. The proliferation of cameras - both police cameras and the public's - certainly has altered the terms of debate on the topic. But accountability at roadside searches remains important and this is still a good idea.

Militarization of police
Both platforms suggested restricting militarization of police through the federal government's 1033 program that provides military surplus equipment to domestic, civilian law enforcement agencies. The Democrats want to "reject" the "continued receipt" of such equipment. The GOP platform called for transparency including new "reporting and training standards" and a requirement that the governing body of any law enforcement agency formally vote to accept 1033 program equipment. Transparency is always helpful, and "training" may get to an Achilles heel of the program: Many local agencies don't have personnel trained on specialized military equipment they receive, so it falls into disuse. If agencies must report what they have, demonstrate that they're training on the equipment they get, and submit 1033-equipment requests to their city council or commissioners court, that would eliminate a lot of the BS.

End debtors prisons
This one may be my personal favorite: Remarkably, both parties embraced a reform that would essentially eliminate the use of debtors-prison practices for most criminal-justice related debt, relying on regular commercial collections processes, instead, and essentially ending "warrant roundup" practices. The GOP platform called for the Lege to "enact laws that end the incarceration of individuals because they cannot pay tickets, fines, and fees for Class C Misdemeanors, including traffic." The Democrats wouldn't limit the idea to Class Cs: They supported, "ending the practice of sending poor people to jail or prison for inability to pay fines and court costs." Between those two stances, there's definitely enough overlap to get a bill passed. House Corrections Chairman James White, an East Texas Republican, filed essentially this legislation last session. (Thanks to former House Corrections Chairman Jerry Madden for making sure it got into the platform on the GOP side.)

* * *

Those are the major areas where #cjreform platform planks for Texas' two major political parties include overlap. There are still areas of disagreement, certainly (e.g., they're diametrically opposed on capital punishment), and the Democratic platform articulates a more aggressive reform agenda than does the GOP on more topics (e.g., Dems want to make crime labs independent, and explicitly called to "reduce mass incarceration" and "end racial profiling.") But there are enough spheres of concurrence to identify areas primed for major, bipartisan legislative pushes with a good chance to succeed.

To be clear, party platforms typically aren't decisive in legislative votes. Most #cjreform bills that ever passed in Texas since the turn of the century weren't included in either party's platform document. But as markers for where the two parties stand on the issues, these common threads certainly point to practical possibilities for bipartisan collaboration. That, plus identifying allies in both parties willing to join us in pushing these reforms, really were all Just Liberty could ask for from this campaign.

TX Dem platform prioritizes #cjreform

Having detailed #cjreform planks added to the Texas state GOP platform, let's now turn to the Democratic platform approved this week in Fort Worth. Criminal-justice reform was the first section in the final platform document (see here), an obeisance not afforded the subject in many a year among Democratic opinion leaders.

The differences in the R and D platforms in large part stemmed from differences in process. The Republican party platform is a completely grassroots affair, with resolutions bubbling up from the precinct-convention level and the final product looking like a hodge-podge list of unrelated and frequently disconnected suggestions.

By contrast, the Democratic platform committee re-wrote the #cjreform section from scratch. So it reads more coherently and includes fewer jarring non-sequiturs than some of the platform planks on the R side. But it's also less of a direct expression of grassroots opinion within the party, for whatever that's worth.

In all, some version of ten of Just Liberty's proposed platform planks ended up in the GOP platform, and about 15, in some form, made it in on the D side.

In many ways, though, the Dem platform goes further than Just Liberty's resolutions. It  more systematically gives candidates at different levels - justices of the peace, constables, sheriffs, prosecutors, and judges - issues they could potentially run on as Democrats. And it's a pretty good list, much better developed than the less-reform-minded 2016 version. The various subsection titles include:

• Bail reform
• Re-entry
• Mass incarceration
• School-to-prison pipeline
• Juvenile justice
• Policing and improving community partnerships
• Eliminating private prisons
• Criminalizing intentional prosecutor misconduct

The reformist approach expressed in the Democratic platform is more comprehensive and fully developed than its GOP counterpart, but because of the party's seemingly permanent minority status, it's also perhaps less consequential.

Still, the Democratic platform had not significantly embraced a reform mindset on criminal-justice in years past. Now, they're suggesting cutting edge reforms and distinctly new approaches. For example, "Treating drug use as a public health challenge rather than a crime," and "Reducing possession of small amounts of controlled substances to a misdemeanor, even when it is a repeat offense."

They also endorsed, echoing a plank in the GOP platform, "Ending the practice of sending poor people to jail or prison for inability to pay fines or court costs."

Soon, Grits will follow up with a post detailing points of agreement between D and R platforms and speculating on prospects for bipartisan #cjreform in the 2019 Texas Legislature.

RELATED: Check out the special podcast Just Liberty put together to promote criminal-justice reform measures in the Texas Democratic Party platform.

Judges rubber stamping capital writs, warrants now required for cell-phone location data, managed-assigned-counsel systems still suck, and other stories

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

Austin admits police oversight system didn't do much
Grits has said for years that Austin's civilian review panel for police was more or less worthless as oversight. They make fine recommendations, but none of them are ever implemented, as the Texas Criminal Justice Coalition demonstrated in a report last year. Now, a city auditor's report has agreed, finding that none of the civilian review panel's recommendations under the old system were ever implemented. See coverage from the Austin Monitor.

Lawsuit: Austin PD failed to properly investigate sexual assault cases
See coverage from the Daily Beast. Putting a pin in this one to look at later. Given that Austin PD's DNA lab has already been shut down because they were performing the tests wrong, it's not hard to imagine some cases aren't aggressively pursued when they should be.

Bexar should reject calls for managed-assigned-counsel
The SA Express News editorial board argued that Bexar County needs to a) spend more on indigent defense but also b) spend more on oversight to make sure it's getting quality defense for the money it's spending. They should stop promoting the Managed Assigned Counsel program, which has been a disaster in Austin. What Bexar County needs is a full-blown public defender office, and not just for mental-health cases.

Harris County judges rubber stamp DA findings in capital writs
In 96 percent of state capital habeas cases since 1995, judges in Harris County simply adopted proposed findings of fact written by the prosecution, according to this analysis from the Houston Law Review. See this summary of the analysis compiled by The Open File.

Paxton sides against local GOP judges in bail litigation
Positioning himself opposite the Republican judges who've spent more than $6 million fighting bail reform in Harris County, Texas Attorney General Ken Paxton is seeking to have lawsuits dismissed which were filed by Harris County magistrates against the State Commission on Judicial Conduct after that agency had sanctioned them. The judges in Houston fighting bail reform are becoming increasingly isolated. The bail bond industry is nearly their only remaining ally, given that statewide elected officials like the Attorney General and the Texas Supreme Court Chief Justice haven't backed their play.

Settlement in pool party police assault
The girl who was famously slammed down by police at a McKinney pool party has entered into a settlement with the city, reported The Root. " According to the Fort Worth Star-Telegram, under the terms of the settlement, ... plaintiffs in the case, were awarded a total of $184,850 last month, with $148,850 of that amount going to" the principle victim. ALSO: The Statesman has the story of another high-profile civil rights suit against a police officer out of Mesquite who tazed a teenager in the groin in a situation where the boy ultimately died.

SCOTUS: Protect cell-phone location data with warrant requirement
I haven't had time yet to read the new Carpenter decision from the US Supreme Court on when law enforcement must get a warrant to access cell-phone location data and when they don't need one. But the fact that Orin Kerr is grumpy means I'm likely to like it. Regular readers may recall that Grits had previewed the case around Christmastime with a poetic homage.

'How does the warden sleep at night?'

The demotion of a warden and several other "ranking officers" in response to Keri Blakinger's reports in the Houston Chronicle on illegal quotas being applied to inmate discipline systems at multiple units has had Grits singing the opening verse to this tune from the Old Crow Medicine Show all morning. TDCJ has dismissed around 500 disciplinary cases that officers filed against inmates under these quota systems, and it's a safe bet there are more among them which were fabricated but will now never be adjudicated.

It's the thought of those never-to-be-unearthed, fabricated cases that's caused the chorus from the Old Crow Medicine Show to bounce around Grits' head all morning: "How does the warden sleep at night, after the long day's through? Does he toss and turn? Does his conscience burn? Is he a prisoner, too?"

Reversing mass incarceration brick by brick: Podcast features #cjreform planks proposed to the Texas Democratic Party platform

Having produced a special podcast promoting #cjreform planks in the Texas state GOP party platform, it's only fair that Just Liberty return the favor for the Dems.  Here's a discussion among Democrats and liberal reformers about justice-reform planks being proposed to the Democratic platform.

What are the key justice priorities for Democratic constituencies this year? Reform leaders say transparency and accountability for police misconduct, rolling back mass incarceration and the drug war, and eliminating regressive government policies that mainly harm the poor.

This special episode promotes reform planks proposed to the Texas state Democratic platform in 2018 via local precinct resolutions. It features original music and interviews with state Rep. Gene Wu, Austin Justice Coalition executive director Chas Moore, as well as Sukyi McMahon and Kathy Mitchell with Just Liberty.

Enjoy!