Podcast: Did the innocence movement cause decline in clearance rates?

Check out the September, 2018 episode of the Reasonably Suspicious podcast from Just Liberty. Notably, the introduction features a brief poem regarding the Supreme Court nomination, per Keri Blakinger's request. ;)


Beyond that, here are the topics we're discussing this month:

Top Stories

• Did the innocence movement cause the decline in clearance rates for crimes? (Reacting to Jay Wachtel.)
• Two thirds of crime labs falsely accused innocent people in blind study

Musical Interlude #1: Debtors Prison Blues

Home Court Advantage

• The Fifth Circuit ruled that prosecutors who withheld evidence of innocence when a defendant pleaded guilty did not violate his constitutional rights.

Game segment: Fill in the Blank

• Texas prisons blend dinner for toothless inmates instead of buying dentures
• TDCJ struggles to estimate how much air conditioning costs
• TX prisons need massive budget hikes for healthcare, basic maintenance

Musical Interlude #2: Stop the Train

The Last Hurrah

• Waco jail is full of pretrial prisoners
• Twin Peaks cases delayed until new DA takes office
• Why haven't incarceration, prosecutions, declined with crime rates?

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

On the Houston Chronicle's 'misplaced pride' and flawed reporting on DWI deaths

In an unsigned staff editorial, the Houston Chronicle complained that, "misplaced pride needlessly costs the lives of hundreds of people every year" because of DWI. But their own pride caused the Opinion section of the paper to double down on flawed reporting from the news side on DWI deaths.

The editorial board joined the news section's call for a regressive tuff-on-crime response to DWI, flying in the face of recent evidence about factors impacting DWI fatalities.

And they continued to manipulate data on the topic, focusing on aggregated numbers over a sixteen year period without parsing annual trends. This obfuscation leads them to disingenuously pretend that DWI-related fatalities might go down "if local law enforcement agencies assigned more officers to the task" of arresting people.

But we know that's not true. As demonstrated in this Grits post, the paper's assertion of a link between police deployments, DWI arrests, and alcohol-related fatalities simply isn't backed up by the evidence.

Texas has just witnessed a natural experiment regarding the relationship between DWI enforcement and alcohol-related-traffic fatalities, and something unexpected happened: DWI enforcement declined significantly in the past few years, Texas' overall population increased, and per capita traffic fatalities declined.

That's the opposite of what would have occurred if the relationship between police staffing and fatalities posited by the Chronicle were true.

Chronicle writers are able to keep up this pretension by relying on 16 years of data, aggregated altogether, but ignoring points where recent trends belie law-enforcement assertions in the story. The approach masks clear flaws in their recommendations, which for the most part are recycled wish-list items from the local police chief (hire more officers, authorize traffic checkpoints, etc.).

If more staffing assigned to DWI enforcement would reduce deaths, then traffic deaths in 2010 would have been lower than they are today. After all, Texas cops were making tens of thousands more annual DWI arrests at the time.

But clearly, from the annualized data trends, police enforcement levels weren't a decisive factor. What might be? ¿Quien sabe? My guess is that public-service advertising, changing cultural norms, and the rise of Lyft and Uber had something to do with edging per-capita death rates down. But one certainly couldn't tell from the Chronicle's reporting.

Other commentary was just weird. For example, the staff editorial opined that, "Texas has some of the most lenient license suspension laws in the country." But in reality, as The Washington Post reported earlier this year, Texas has suspended more drivers' licenses than any other state: 1.7 million, all told. It's like the editorial board didn't even Google the topic before writing this stuff.

It was disappointing that, instead of parsing facts to discover what works and what doesn't, the Chronicle recycled a bunch of tired, tuff-on-crime memes that fly in the face of the data. It all feels depressingly familiar, like throwback coverage from the 1990s.

RELATED: Check out this Reasonably Suspicious podcast segment from May hypothesizing causes for the decline in DWI and drunkenness arrests across Texas.

Most crime labs accused innocent person in DNA mixture study

A new study described in the New York Times confirms the problems with DNA mixture evidence Grits has described on this blog for several years. Even more disturbing, the study's authors hoped to keep the results secret until they were pressured by other scientists into publishing, and then downplayed their bombshell findings.

It's understandable that they feared their study would undermine the work or practitioners analyzing DNA mixture evidence. Check this out:

Researchers from the National Institute of Standards and Technology gave the same DNA mixture to about 105 American crime laboratories and three Canadian labs and asked them to compare it with DNA from three suspects from a mock bank robbery. 

The first two suspects’ DNA was part of the mixture, and most labs correctly matched their DNA to the evidence. However, 74 labs wrongly said the sample included DNA evidence from the third suspect, an “innocent person” who should have been cleared of the hypothetical felony. ...

One shocking result from the new N.I.S.T. study is that labs analyzing the same evidence calculated vastly different statistics. Among the 108 crime labs in the study, the match statistics varied over 100 trillion-fold. That’s like the difference between soda change and the United States’ gross domestic product. These statistics are important because they are used by juries to consider whether a DNA match is just coincidence.

In other words, more than 2/3 of crime laboratories analyzing the evidence would have falsely accused an innocent person.

Equally disturbing, the authors realized their findings were explosive, and so attempted to scuttle or downplay them. "If some of us had not complained publicly, it may not ever have been published," noted Greg Hampikian, the Boise State biologist whose Times op ed highlighted the study.

Moreover, "Neither the paper’s title nor the abstract mention the shocking findings. And the paper contains an amazing number of disclaimers," including one "apparently intended to block courtroom use."

Hampikian says there have been at least five DNA exonerations based on flawed DNA mixture evidence: "our Boise State University laboratory has re-examined a few select cases and already persuaded courts to overturn a conviction in New Mexico, two in Indiana and two in Montana. We have also helped identify a new suspect in a 23-year-old murder."

Grits considers it flat-out scandalous that NIST withheld publication for so long and then attempted to downplay the results. That behavior smacks of bad faith.

But I'm glad problems with DNA mixture evidence are receiving more public attention. Maybe one day, Texas courts will acknowledge them as well.

MORE: From Forbes, "Framed by our own cells: How DNA evidence imprisons the innocent." 

See prior, related Grits posts:

• A reluctant scoop: Changing interpretations of DNA mixtures vex legal system
• Labs must correct wrong DNA mixture analyses, learn when to recognize 'crap'
• Resources on DNA mixtures
• The challenge of notifying defendants in large-scale forensic error cases
• Courts punt on forensics surrounding DNA mixtures
• News flash: 'Touch DNA' doesn't necessarily require touching
• DNA mixture SNAFU a mess but don't expect 'deluge' of innocence claims

Toothless prisoners' liquid diet, good faith for me but not for thee, and other stories

Here are a few odds and ends that merit Grits readers' attention headed into the weekend:

Toothless prisoners' liquid diet
The Texas prison system has all but stopped giving dentures to toothless inmates, preferring to put their food through a blender and feed them liquids, instead, reported the Houston Chronicle's Keri Blakinger. That seems particularly callous, and unnecessarily chintzy.

Dallas must change bail system
Dallas lost the first round of its own bail litigation; see Dallas News coverage.

Back to school
Elizabeth Bruenig is a badass, journalistic hero. Hard to overstate from how many angles I admired her coverage of a rape twelve years ago, and the resulting ostracization and torment inflicted upon the victim, that took place during her high-school days in Arlington. Immaculate reporting, sparkling prose. What a story. And one that could be written, I bet, for a lot of high schools, including my own.

'So many people sitting in jail'
In Waco, apparently oblivious to the possibility of reducing pretrial detention through bail reform, McLennan County officials will pay for an extra, associate judge to process cases faster. According to the latest report from the Texas Commission on Jail Standards, currently more than 85 percent of McLennan County Jail inmates are being held pretrial. One commissioner lamented, “We’ve got so many people sitting in jail that could plea,” ignoring the fact that the District Attorney's tough-on-crime plea positions play a big role in that calculus. It takes two sides to make a plea deal.

Good-faith for me but not for thee
When Tarrant County DA Sharen Wilson prosecuted an ex-prisoner for illegally voting, she refused to accept that the woman had made a good faith error and didn't know the law. But when Wilson herself violated campaign finance laws by illegally soliciting contributions from her employees, reported The Appeal, a special prosecutor said her intent could not be proven. "It looks like a double standard on its face," an SMU law professor declared.

Warrant roundup blues
The Dallas Marshall's office held a warrant roundup this month, but officials in Fort Worth have ended the practice. In 2017, state Rep. James White filed legislation to end the practice of jailing people to coerce payment of government debt. That suggestion was given a boost in June, when both the Republican and Democratic parties included such a prohibition in their platforms. By this time next year, your correspondent hopes the Texas Legislature will have forbade using incarceration for debt collection. It's time.

Beating by prison guard led to inmate death
A 22-year old Texas prison guard who allegedly beat an inmate to death has been charged with aggravated assault after the man died from his injuries two weeks later. After an episode earlier that day where the inmate allegedly spit on him, the guard's supervisor told him to stay away from the man. Instead, the guard took him to the inmate shower and gave him a beating. In a case resulting in death, that seems awfully intentional to get only an agg assault charge and not manslaughter, or even murder.

Evidence of racial bias in justice system overwhelming
Radley Balko makes the case that, "the evidence of racial bias in our criminal-justice system isn’t just convincing — it’s overwhelming." See his comprehensive summation.

More on TX DWI arrest decline

Grits' post the other day about declining DWI enforcement drew quite a bit of interest, so I thought I'd re-up a Reasonably Suspicious podcast segment Mandy Marzullo and I did in May on the decline of DWI and drunkenness arrests in Texas over the last several years. This recurring segment is called "Suspicious Mysteries," in which we discuss questions to which there are no definitive answers. Give it a listen:

See a related discussion and more data on the topic here. Find a transcript of the segment below the jump.

Fifth Circuit: Prosecutors needn't disclose evidence of innocence before plea deals

The Fifth Circuit ruled in a Texas case that the constitutional requirement that prosecutors disclose exculpatory evidence under Brady v. Maryland doesn't kick in until trial, so there is no obligation for the government to tell a defendant about exculpatory evidence when they enter a plea deal. USA Today reporter Brad Heath walked through the details on Twitter. From Judge Costa's dissent: "It is difficult to think of greater deprivations of that liberty than the government’s allowing someone to be held in prison without telling him that there is evidence that might exonerate him." Embarrassing.

This was an en banc decision by the whole court, upholding an earlier ruling by a three-judge panel. See prior Grits coverage here and here, and a discussion of the case on the July 2017 Reasonably Suspicious podcast.

This case stemmed from a 17-year old defendant who was beaten up and choked by a Brownsville jailer then charged with assaulting an officer. He pled guilty to avoid a lengthy prison sentence, but years later, video of the incident showed the jailer instigated the incident and the teen was a victim. A jury awarded the man $2.3 million, but the Fifth Circuit threw that out, insisting the state did no wrong because the prosecutor had no obligation to inform the defendant at the time he pled that the government was in possession of video showing he was innocent.

FWIW, in state-court cases in Texas, the Michael Morton Act now does require prosecutors to disclose exculpatory evidence if the defense requests it, even in the pretrial phase of the prosecution. But that's because Texas has bolstered defendants' position in statute in response to repeated false convictions. The Fifth Circuit has made it clear that, in their opinion, access to that information is not a constitutional right.

The circuits are split on this issue and Grits would love to see SCOTUS take it up, leaving aside who would be the 9th justice to hear it. These innocence issues cut across party lines, and would likely cut across factions on SCOTUS, as well.

Are DWI fatalities "out of control" or "curiously constrained"?

At the Houston Chronicle, St. John Barned-Smith and Dug Begley have an extensive feature on DWI in the Houston metro area, noting that the Houston and Dallas metro areas have the most DWI fatalities of any in the country since the turn of the century.

This is less reporting than an advocacy piece, making the argument that, in the authors' words, "Texas is not doing enough to stop impaired drivers."

Grits doesn't mind a good advocacy article; after all, that's precisely what I do here. But I mention it to emphasize that their premise that Texas isn't doing "enough" is a normative declaration, a value judgment rather than a data-based observation. These authors have declared themselves the arbiters of what is sufficient.

Moreover, since this is an advocacy piece, it doesn't necessarily provide facts that might dispute its thesis, and frames data (e.g., as a 16 year aggregate rather than annualized trends) in ways that support their argument, while omitting frames that might not. In Grits view, the situation is more complicated than portrayed.

For example, while the graphic above is intended to lead to alarm that Dallas and Houston have more deaths over this 16-year period than the New York City MSA, drivers in Texas spend much more time on the road than New Yorkers. E.g., this source announces that in 2011, licensed drivers in Texas averaged 16,347 miles driven each, compared to 11,871 for each New Yorker. Might that have something to do with the difference in alcohol-related traffic-death totals?

Also, the authors, having established themselves as the Arbiters of Enough, suggest that law enforcement is failing to deploy sufficient officers to combat DWI. "Law-enforcement leaders deploy inadequate numbers of officers to drunken-driving enforcement," they opine. And depending on what you think is "enough," the data on DWI arrests may even, on the surface, seem to corroborate that suggestion.

The chart at left is from the Office of Court Administration's Annual Statistical Report for 2017. It shows that DWI enforcement has declined significantly in recent years, with felony DWI cases dropping 24 percent over the last five years and regular DWI cases dropping 13 percent. Overall, police are making half as many DWI arrests than they were thirty years ago, when the state's population was much smaller.

So cops are arresting fewer people for DWI, and indeed traffic enforcement overall has plummeted, as evidenced by this OCA graphic at right:

FWIW, since traffic enforcement has declined even more than DWI enforcement, that tells us that police departments have continued to prioritize DWI, even as traffic enforcement declined, perhaps to a greater degree than the authors gave credit. These data indicate to me that DWI enforcement is not just something that's incidental to regular traffic enforcement, in other words, but has continued to be prioritized, even as traffic enforcement overall was de-prioritized.

But the data that most make me question the assumptions behind the writers' "more enforcement" recommendation is that, during this period of declining enforcement, which coincided with a massive population boom and more cars on the road than ever, Texas DWI deaths remained roughly steady, appearing to be unaffected by either the influx of drivers or the radical decline in enforcement. In fact, they even declined slightly.

Using data from the Texas Department of Transportation, Grits created this chart showing the annual breakout of DWI-related deaths since 2010:

When you consider that Texas' overall population grew by 12 percent over the same period, the trend, to this writer, doesn't seem quite so alarming.

To be sure, one DWI fatality is too many and the state has a big interest in preventing them. The point here is that the evidence in these charts doesn't indicate that DWI enforcement on the roadways plays a big role in reducing fatalities. After all, with more people on the roads and much less enforcement, per capita DWI deaths remained relatively steady, even declining a bit over this period. So if we're looking at the most effective means of reducing DWIs, it's not obvious that devoting more personnel to patrolling the streets would help. When departments took those officers off of traffic patrol, there was no resulting climb in the number of traffic fatalities.

Grits would also ardently dispute the authors' contention that the state should suspend more drivers licenses. They inform us that:

A Chronicle survey of state laws pertaining to license suspensions and interlock use found Texas' were among the most lenient. Lawmakers in 36 states have established longer license revocations, suspensions or more lengthy interlock use than Texas. 

For repeat offenders, Florida can impose permanent suspensions. Florida does not allow suspension time to run while the offender is in prison.

But as regular Grits readers know, Texas has more drivers with suspended licenses than any other state in the country, so many, in fact, that the situation has contributed to massive lines at DPS license centers that can take as long as eight hours to navigate. The last thing we need to do is suspend more drivers' licenses for longer periods.

Anyway, as Clay Abbott, a prosecutors' DWI expert, told the authors, "Texas' sprawl means drunken drivers will get behind the wheel even if their license is suspended — they'll just do it illegally." That's what we've seen with the 1.4 million drivers - about 12 percent of them DWI offenders - whose licenses have been suspended for Driver Responsibility surcharges.

So, while there was some useful data and commentary in this feature story, I think the authors got a lot wrong. By aggregating data over 16 years instead of looking at annual trends, they failed to convey the cognitive dissonance over the fact that a decline in enforcement left DWI fatality numbers essentially unaffected. That blows big holes in their advocacy for deploying more police officers to make DWI arrests. We've just witnessed a natural experiment over the past few years showing the two things don't necessarily correlate.

And the authors' inchoate advocacy that Texas should suspend more driver licenses for longer strikes me as remarkably tone deaf to the political realities created by lines of drivers - many of them with suspended licenses - stretching around DPS license centers around the state. Texas needs to find ways to reduce license suspensions if they want to shorten license-center lines, not lard on more suspensions and worsen the problem.

The authors are also hot to trot over the creation of DWI traffic checkpoints, which are unconstitutional in Texas unless the Legislature explicitly authorizes them. While they do quote outgoing state Rep. Jason Villaba explaining why those measures haven't passed - "The kinds of things that can be done are the kinds of things that usually interfere with the rights of the people who are not engaging in the behavior" - the authors proceed to blow past those objections, giving the police chief the last word on the topic to insist, "Eventually we're going to get them."

None of this is to say DWI fatalities are not a major societal problem. But this Chron article was titled, "Out of Control." To me, that headline overstates things in a period when more drivers than ever were on the road, police enforced DWI laws less often, but per-capita DWI fatalities stayed the same or went down.

Not only does that not seem "out of control," given the counter-intuitive result where less enforcement had no discernible, upward effect on fatality numbers, Grits would instead characterize the dynamic as "curiously constrained."

Interview: ProPublica reporter Pam Colloff on the Joe Bryan case, blood-spatter evidence, resistance to change in forensic science fields, the best #cjreform podcasts, and the effects of a changing media environment on crime coverage

At a dramatic hearing yesterday on his habeas corpus writ in Comanche, TX, a small town near Brownwood, all of the evidence accusing former high-school principal Joe Bryan fell apart, including blood-spatter evidence which even the original analyst would no long stand behind. Ace ProPublica reporter Pam Colloff gave the details in a followup to her massive, long-form story on the case, which was published in the New York Times Magazine back in May.

As it turns out, Joe Bryan was almost certainly innocent and has been unjustly incarcerated for more than 32 years. Most of the blood spatter on the flashlight turned out not to be blood, and what blood was present could be linked neither to Bryan nor his wife, Mickey, the victim. Underwear that the prosecution told a jury contained semen did not. By the time the hearing was over, virtually nothing was left of the prosecution's case, reported Colloff.

With this news, and the renewed attention on Colloff's blood-spatter reporting, Grits thought it would be a good time to stop procrastinating and put out the full interview I did with Colloff over the summer. An excerpt was included in our August podcast, but here's our full conversation. We talked about the Bryan case, blood-spatter analysis (including the training course she took to conduct it), the state of forensics generally, her favorite criminal-justice podcasts, and changes in the media landscape affecting criminal-justice coverage. The whole thing runs about 40 minutes, you can listen to it here:

Find a transcript of our conversation below the jump. You can subscribe via iTunes or GooglePlay.

Roundup: Forensic follies featuring DNA mixtures, blood spatter, and DWIs, plus how the Drug War props up mass incarceration in Texas, and other stories

A few odds and ends while your correspondent is focused elsewhere:

Flood of coverage, emotion, anger surrounding Botham Jean killing

The killing of Botham Jean by Dallas police officer Amber Guyger is the most politically significant episode of alleged police misconduct resulting in a death in Texas since the Sandra Bland tragedy. Your correspondent began a longer commentary on the topic over the weekend, but the stories being put out by law enforcement evolved so quickly that, with no first-hand knowledge, Grits decided it prudent to wait a moment, take a breath, and watch things play out. Others have said what needs to be said in the context of what is known, and too much remains unknown to say much more. Go here to review the voluminous news coverage surrounding the case.

Blood-spatter bollocks blown open

The blood-spatter case Pro Publica's Pam Colloff wrote about last spring was broken wide open in a Texas habeas hearing yesterday, with all of the probative evidence systematically debunked. See her  latest report, and check out Grits' interview with Colloff about the case on the latest Reasonably Suspicious podcast.

Brady and forensics

The mishandling of a DWI blood sample led the 14th Court of Appeals to reverse a conviction based on Brady violations (failure to report exculpatory evidence to the defense) by what was then the Houston PD crime lab, and is now the independent Houston Forensic Science Center, the Houston Chronicle reported. See a pithy summary of the case from exoneration expert Brandon Garrett.

Austin DNA SNAFU may have caused false convictions

Some of the DNA mixture cases from the Austin crime lab being reviewed by outside experts "came back with results that could be beneficial to the defendants’ cases, such as a previous DNA result not excluding a person that came back inconclusive," reported the Austin Statesman. The layman's interpretation: Innocent people may have been convicted based on flawed DNA mixture forensics. Stay tuned.

School-'em-up

Exoneree Anthony Graves is teaching ex-offenders how to advocate for justice reform in a class at Texas Southern University.

A narrow window of journalism on Austin police contract controversy

Finally, an account of the controversy over police oversight and Austin's union contract that goes beyond bashing advocates for their impertinence at winning after the local media sided with their opponents. See the story from Nina Hernandez at the Austin Chronicle. From Grits' vantage point, this is essentially the first fair-minded assessment we've seen after the stream of pro-police-union apologia that's passed for MSM coverage in this town for the past several years. Indeed, more journalists are changing their minds about how to cover police accountability than just in Austin. The National Review's David French recently penned a column titled, "Why I changed the way I write about police shootings."

You're a liar! No, you're a liar!

The Aransas County District Attorney stopped taking cases from the Rockport Police Department more than a year ago because she thinks their officers have been dishonest and intentionally failed to comply with "Brady" disclosure requirements, the Texas Observer reported. Rockport police have responded with counter-allegations, and it's all a big mess.

Drug war propping up TX mass incarceration

In this Twitter thread, your correspondent demonstrated using Office of Court Administration data how "the drug war is propping up mass incarceration in Texas," keeping felony conviction numbers high even though crime is way down.

High complaint numbers valid predictor of bad cops

A new study found that civilian complaints against police are a valid predictor of police misconduct. And complaints were equally predictive whether or not people are required to sign a sworn affidavit. Ninety percent of officers have few or no complaints against them, but those with a significant complaint history or more likely to be among those who end up costing their department through civil suits and bad publicity.

Even misdemeanors impede job search

Study: Misdemeanor convictions significantly harm employment prospects.

#cjreform implications of Texas Senate races

How might contested state-senate races in the November elections affect criminal-justice reform prospects in Texas?

Prospects for senate turnover
Alex Samuels at the Texas Tribune today reported news which has been widely understood in political circles for months - that as many as three Republican state senate districts could flip red-to-blue in a high-turnout, Democratic-wave election. Those seats are presently held by Konni Burton, Joan Huffman, and Don Huffines.

Samuels focused on the most obvious potential change: Because a supermajority is required to bring legislation to the floor, if they won those races, Democrats would suddenly have the power to block Republican bills when they vote as a bloc.

For criminal-justice reformers, though, the subject is more complex. For us, the problem isn't so much killing bad bills as how to pass good ones.

An imperiled champion
Sen. Konni Burton has been the most enthusiastic Republican senator when it comes to justice reform. She's been one of the senate's best Fourth Amendment champions, but her crowning #cjreform achievement IMO came with a 2015 amendment that adjusted Texas' property-theft thresholds upward, reducing the number of people picking up a felony charge. The result was to steadily depopulate Texas' "state jails," reorienting the system from incarceration to victim restitution at the local level and causing probation rolls to plummet.

If Burton were to exit the senate, it would make it more difficult for reformers to amend House bills in the eastern side of the capitol and to whip Republican support in the senate. She's not a policy expert, like Senators Whitmire or Huffman, but when Burton embraces an issue, she does so energetically, with zeal, and she doesn't quit or back down in the face of opposition. Those qualities matter, and will be difficult to replicate.

Notably, when your correspondent heard her speak the other night at a Northeast Tarrant County Tea Party meeting, Burton suggested that her criminal-justice-reform advocacy was benefiting her in her state senate race because, in a 50/50 district, she had to appeal to swing voters and seek Democratic crossover votes. That meant she'd found herself frequently campaigning among minority neighborhoods and community groups in her district, she said, and she told the Tea Party folks that her record on #cjreform had proven to be an asset on the campaign trail when trying to reach those voters.

Gatekeeper could lose her post
By contrast, Sen. Joan Huffman has more often than not been an obstacle to criminal-justice reform in the upper chamber, with two caveats: 1) She has sometimes acquiesced in compromised versions of reform that still represented significant gains, and 2) the longer she's been in office, the more educated she's become about systemic problems, as evidenced by her vocal advocacy for mental-health funding. In the last couple of sessions, she has seemed more open to at least discussing problems and listening to proposed solutions.

Still, if Huffman were vanquished, the senate would lose its long-time tuff-on-crime gatekeeper. And there aren't other senators with much background on criminal-justice topics to make it obvious who might assume that role on the R side. Criminal Justice Committee Chairman John Whitmire, a Democrat, often dominates justice debates in the Senate because he's so much more knowledgeable on the topic than his colleagues. Sen. Huffman, a former prosecutor and judge who frequently carries law-enforcement messages and bills, has been his Republican counterweight.

If she was somehow dislodged from office, it would be a big change. That said, when she ran against the same Democratic opponent in 2014, Huffman beat her like she was owed money, so take Samuel's assessment of vulnerability with a grain of salt.

Senate remains a mixed bag
Sen. Huffines has been a relatively minor player on justice topics, promoting abolition of the Driver Responsibility surcharge and red-light cameras, but shying away from other #cjreform subjects.

So it's a mixed bag: Huffman's departure would shake things up, but other potential GOP gatekeepers aren't a big improvement, and losing Konni Burton would be damaging.

A champion arises?
The one bright spot in this otherwise hazy outlook in the senate is that the corrupt Carlos Uresti - who on #cjreform issues would have needed to become more active to qualify as "furniture" - will be gone, and appears likely to be replaced by former Congressman and 22-year Texas House member Pete Gallego.

Gallego, who has worked as both a prosecutor and a defense attorney, chaired the Criminal Jurisprudence Committee when I was Policy Director at the Innocence Project of Texas and was an important ally on many of the reforms passed while I was there. The bill that stands out most to me was Texas' junk-science writ, which he and Sen. John Whitmire pushed through successfully in 2013 before Gallego left to run for Congress. He was a mensch throughout the process, and as knowledgeable and thoughtful as any legislator I've worked with. He'll be an excellent addition to the senate from a #cjreform perspective, and a huge upgrade from his predecessor. UPDATE (9/18) Gallego was upset in this race by Bill Flores, so the seat flips from D to R, reinforcing Republican power in the upper chamber heading into election day.

The potential for volcanic eruption
None of these would amount to a sea change in the Texas Senate, even if all three of the vulnerable Republicans end up losing. But it would be a truly volcanic transformation if Dan Patrick lost the Lieutenant Governor's seat, and a recent poll showed him just a couple of points ahead of his Democratic opponent, Mike Collier. That would be a much more titanic shake-up, on many levels beyond just criminal justice, and would likely clear the way for more aggressive #cjreform legislation. If the blue wave goes that deep, one might expect Sharon Keller to lose her seat on the Court of Criminal Appeals as well, and for Attorney General Ken Paxton to at least be getting nervous on election night.

That would be unexpected, and I certainly wouldn't bet on it. (If Grits were in Vegas setting the betting line, I'd say Ted Cruz by four points, Dan Patrick by six.) But a lot about American politics is unexpected these days, and stranger things have happened.

Prison educator: TDCJ inmates' reading and math on a 5th grade level

The average Texas prison inmate's reading and math skills are at a fifth grade level, the superintendent of TDCJ's Windham School District told the Senate Criminal Justice Committee this morning.

Large numbers of the nearly 70,000 inmates leaving Texas prisons every year, he told the committee, do so without a GED. The agency grants about 5,000 GEDs per year.

Chairman John Whitmire briefly raised the question of computer proficiency among inmates leaving the system, and I found myself wishing the superintendent had discussed it more. The ability to use a computer - particularly word processing and spreadsheet software, but even basic internet search functions - can be essential these days, even for retail or service work.

For that matter, in 2018, searching for a job most frequently means searching on the internet. That's harder to do if, first, one has to learn how to ACCESS the internet.

Those skills should be taught in prisons.

Inmate outsourcing caused by judges resisting bail reform

As mentioned earlier, the Harris County Jail, with more than 10,000 inmates, is larger than the prison systems in 19 states. But not all of those people are housed in Harris County! The Sheriff is mulling spending more per inmate to house people in Fort Bend County instead of in Louisiana.

To be clear: The entire cost of contracts to house inmates out of county may be attributed to failures in pretrial detention policy. Harris County judges pressed the county to spend millions of dollars fighting bail reform rather than issue personal bonds to low-risk defendants, a point attorney Pat McCann made at the end of the story.

Notably, the Texas Commission on Jail Standards recent found the Harris County Jail out of compliance after two suicides in a month's time.

A flaw in Travis County's plan to ↓ DWLI

Chris Harris of Grassroots Leadership reported yesterday on Twitter that Travis County will institute a new program to reduce arrests for driving with an invalid license. Here's what he says that will mean for drivers with revoked licenses:

• If cited (not arrested) by police, you will be charged with a Class C instead of B 
• If you plead guilty and get your license and insurance renewed w/in 6 months the charge is dismissed

Earlier this summer, the Austin Statesman reported that, "The number of Class B misdemeanors filed last year in Travis County — 3,425 — was three times higher than the combined total in Bexar, Dallas and Tarrant counties and exceeded the number of filings in the more populous Harris County, according to data produced by the Office of Court Administration."

That article blamed Austin PD for filing the higher charge, but prosecutors have complete discretion over what charges to bring in these cases: Those were decisions by the County Attorney's office. Now that they've made a different one, clearly they expect APD to just comply.

Which brings us to the key problem: even now it's unclear to your correspondent that County Attorney David Escamilla has proposed a workable plan. Most people with suspended licenses in Texas had them revoked for nonpayment of driver-responsibility surcharges. So, how may we expect them to get their license renewed within six months?

Can't pay means can't pay; one can't squeeze blood from a stone.

This will be better. Charging people with Class Cs instead of Class Bs limits the bad outcomes. But it will still result in punishing people for being too poor to pay their Driver Responsibility surcharges, and in the end, punishment won't fix that problem.

A reporter's carceral recollections

Keri Blakinger's best known as one of the sharpest and most prolific up-and-coming criminal-justice reporters in the country. But her episodic essays in the Houston Chronicle's Gray Matters column about earlier-in-life stints struggling with drug addiction, homelessness, and prison have been nothing short of excellent. Check out these examples:

• Prison families? I didn't want any part of that
• The 'men' in a women's prison
• In prison, the Superbowl is the best holiday
• Why I ate prison food even after I got out
• Why we wore makeup in prison
• In prison there are no rules
• Why I craved crosswords in prison
• I got out of prison 5 years ago. I still don't own dishes

Tarrant DA told pro-#cjreform Tea Party meeting there's no mass incarceration in Texas

Your correspondent spent yesterday evening at a meeting of the Northeast Tarrant County Tea Party on criminal-justice reform, featuring state Sen. Konni Burton and Rep. Matt Krause as the principle speakers.

The idea that a Tea Party group was focused on #cjreform after Labor Day in an election year really says a lot about the changing terms of debate surrounding crime and punishment in the Lone Star State, so I was pleased and gratified to join them.

Anyway, Tarrant County District Attorney Sharen Wilson was there seeking votes, along with a clutch of other candidates. During the question and answer session, she stood up to make a statement that deserves correction.

After mentioning that her Democratic opponent is running, in part, on a platform of "ending mass incarceration," Wilson declared that, in Texas, mass incarceration is "not a problem" because the state has closed seven prison units (really it's eight) and legislators like Burton and Krause are pro-reform. She also told the crowd that Texas' prison population has declined by 20 percent.

That's simply uninformed. In reality, along with our neighbors, Louisiana and Oklahoma, Texas remains the global epicenter for mass incarceration. The Bayou State has surpassed Texas with the nation's highest incarceration rate, with the Okies coming in second. (We still rank near the top.) But Texas still has by far the largest state-prison system. In fact, Texas even has more state prisoners than California, but with 30 percent less population than the Golden Bear.

Heck, the Harris County Jail is larger than 19 state prison systems! (Source.) The idea that Texas has no mass-incarceration problem borders on ludicrous.

Nor has our prison population declined by 20 percent from its peak. If it had, Texas' prison population would now be lower than California's. Rather, it's declined by about six percent, from a high of about 155k to around 146k today.

It's true we've closed eight prison units, but we started with 112, so there's still a long way to go!

That said, Texas' justice system has definitely shrunk. The proportion of Texans in prison, jail, on probation and on parole - what Grits has called the "subjugation rate" - has plummeted over the last decade from one in 22 people under control of the government to one in 41, putting us just below the national average. That's a 46 percent reduction!

But almost all of that decline came from the sliding number of probationers, with state-prisoner reductions coming in a distant second. Looking solely at those incarcerated, leaving aside community supervision, Texas' incarceration rates remain quite high and, in real numbers, our system is the biggest.

To give credit where it's due, by the way, Sen. Burton is largely responsible for that reduction in the subjugation rate. Her 2015 amendment increasing property-theft thresholds to track inflation began to depopulate the state jails and shed thousands from the probation rolls over just a few years. That resulted in substantially increased freedom across the state, in a fundamental sense. She has been a true and consistent ally of #cjreform efforts at the capitol.

Grits was excited to witness one of the state's largest Tea Party groups so ardently embracing justice reform. Both Burton and Krause seemed genuinely enthusiastic about a "limited government" approach to the justice system, and Krause, in particular, proved effective at burnishing the tenets of conservative ideology in support of the cause. I was also glad so many candidates, including Wilson, attended to seek the group's support at the same time they're discussing #cjreform issues. It helps to set a certain tone among the political class, which I appreciate.

Grits appreciated less the Tarrant County District Attorney pretending Texas has no need to confront mass incarceration. Everyone is entitled to their own opinion, but not their own facts.

TX Judicial Council recommendations on bail reform

Check out the Texas Judicial Council's legislative recommendations related to pretrial detention/bail reform, and the description of the risk assessment instrument they're recommending to legislators in committee hearings.

From the handout: "A recent study showed that defendants who spent three or more days in jail were more likely to lose employment, report serious financial difficulty, experience issues with residential stability and less likely to be able to support dependent children."

And a mere three days of pretrial detention, for many defendants, would be a welcome respite from the reality: "Nearly 20% of felony cases take more than a year to dispose and more than 50% percent of misdemeanors remain pending over six months – meaning individuals held in jail while awaiting trial stay for considerable amounts of time."

With Gov. Abbott having entered the mix over the summer, vowing to name bail-reform legislation after a dead state trooper whose killer he believes shouldn't have been released on bail, one of the shortest distances to passing bail reform would be if a meeting of the minds between Gov. Abbott, himself a former Texas Supreme Court Justice, and current TSC Chief Justice Nathan Hecht could form the basis for consensus among statewide elected officials. So the details of what the Judicial Council proposes on this score are important, and likely form the basis for bail-reform legislation next year.

Some of the things Gov. Abbott wants done regarding preventive detention would require a constitutional amendment, which requires a two-thirds legislative vote in both chambers, as opposed to a simple majority in the House and 3/5 in the Senate, as is required for regular legislation.

With Gov. Abbott's sudden interest, bail reform is shaping up to be a major #cjreform topic during the 86th Texas Legislature. However, even if something like SB 1338 from last session is able to pass this time - and given the motivated fervor and deep pockets of bail-industry opposition, that's not a sure thing - measures that require changing the constitution may still end up being hard-fought votes.

What's the hold up? Waiting for Texas prison data

It's been 375 days since the fiscal year ended and the Texas Department of Criminal Justice still has not issued its annual statistical report for FY 2017.

Last year, the FY 2016 report came out in April.

That is all.

UPDATE: TDCJ told the Houston Chronicle's Keri Blakinger the report may be out as early as next week.

15-second bail hearings in Big D, doing time for non-existent crime, and other stories

Here are a few odds and ends of which Grits readers should be aware:

Possible poo, snitch lies, caused likely wrongful conviction
Ed Ates has now been paroled but not (yet) exonerated, largely thanks to the efforts of the Truth and Justice podcast out of North Texas. Congratulations to all involved! Texas Monthly's Michael Hall has the details, writing that Ates was convicted based on "two lies, one snatch of hearsay, and one piece of human feces on his shoe that, when all was said and done, was never actually proven to be human feces in the first place."

15 seconds for Big D bail hearings
Video of bail hearings in Dallas County show they routinely last around 15 seconds apiece, reported the Texas Observer's Michael Barajas. FWIW, it was video of unrepresented defendants being bullied by magistrates that was the tipping point in the Harris County litigation, so this could become a pivotal aspect of the ongoing litigation in Dallas. See more from the Marshall Project.

More guards framing prisoners for disciplinary cases
Keri Blakinger at the Houston Chronicle has yet another example of Texas Department of Criminal Justice prison guards proactively setting up innocent inmates for disciplinary infractions they didn't earn - in this case, allegedly planting drill bits in an inmate's cell then accusing him of hiding them. Go read her story.

Debating the utility of ankle monitors
Federal judges are pushing back on requirements in the Adam Walsh Act that they assign all child-porn defendants to wear ankle monitors pretrial. See related, recent Grits coverage: Do ankle monitors on parolees make anyone safer?

Don't blame innocence work for decline in murder clearance rates
Jay Wachtel recently posed the argument that the decline in murder clearance rates is the result of greater "caution" by police thanks to advocacy by the innocence movement. Your correspondent thinks that's a load of horse-hockey. In Texas, 1) declines in clearance rates preceded the enactment of any innocence reforms, and 2) none of the reforms passed significantly tied officers' hands. E.g., courts continue to let eyewitness testimony into evidence when officers didn't comply with best practices. That said, it's fascinating that murder rates have declined WHILE clearance rates declined. Police are solving fewer cases but the result is greater crime reduction. To me, that indicates the decline in murders likely has little to do with effective police work and more to do with unrelated societal trends.

Prosecutor merger in Austin a low priority
The Travis County District and County Attorneys want to merge. Grits thinks they both have bigger fish to fry, but the two officials are gung ho about it. Local #cjreform advocates have given the DA and CA a list of reforms they'd like to see before signing off on the merger, focused on Larry-Krasner-style decarceration policies (with a Texas twang). But as of this writing, the prosecutors haven't bitten. E.g., in Nashville, TN, prosecutors stopped taking invalid-license cases, while Travis County prosecutes more of those than any other large Texas county, according to Chris Harris from Grassroots Leadership. I'd rather see County Attorney David Escamilla focused on eliminating those cases from his dockets than pointlessly merging with the DA's office.

Defense lawyers failed to notice client charged with non-existent crime
A state legislator told me once that, of all the professions, lawyers, doctors, and engineers could do irrevocable harm if they do not perform their jobs well. A case in point is this article about a 17-year old man sentenced and incarcerated for a crime (online solicitation of a minor) that the courts had already declared unconstitutional and stripped off the books. He has filed suit against his former attorneys for malpractice.

Artistic portrayals of mass incarceration
On your next visit to downtown Houston, check out an exhibit at the Contemporary Arts Museum focused on mass incarceration dubbed, "Walls Turned Sideways: Artists Confront the Justice System." The exhibition, the Texas Observer informs us, is "on display until January 6, is accompanied by an ambitious, 464-page catalog containing essays by dozens of scholars, artists and activists."

'Click here to kill everybody'
If you want to think deeply about real security as opposed to the security theater that characterizes most political discussions, read Bruce Schneier, from whom I've learned a lot about how to analyze security questions. His new book is titled, "Click Here to Kill Everybody," and it immediately goes on the to-read list. Grits has read Schneier's Secrets and Lies, Liars and Outliers, and downloaded Data and Goliath onto a Kindle but haven't gotten to it, yet. His blog, Schneier on Security, is a longstanding internet gem; read it if you don't.

Long DPS lines making costs of TX driver surcharges more apparent, outweigh revenue to trauma centers

For years, the economics of Texas' Driver Responsibility surcharge - and its role in subsidizing trauma hospitals around the state - have been cited as the principle barrier to its abolition.

But those economics may be changing before our eyes as the state prepares to pony up hundreds of millions of dollars to reduce long lines at Texas Department of Public Safety driver-license centers.

College Station Municipal Judge Ed Spillane was quoted extensively in a TV news story explaining the failings of the Driver Responsibility Program, which regular readers are aware attaches civil penalties on top of criminal fines for certain traffic-related offenses, most frequently driving with an invalid license (DWLI) and failure to maintain insurance coverage. The economic consequences for low-income drivers was well-described by Spillane and a local driver caught up in the surcharge-cycle for the last decade. Check it out.

When it comes to solutions, Spillane rightly declared that legislators "are at a loss" about how to get rid of the program because half of the money raised (after paying the collections contractor) goes to trauma hospitals, with the other half going into the general revenue fund.

However, the costs and unintended consequences of the Driver Responsibility Program are beginning to add up, and as a result, Grits believes the economics of surcharge abolition may be shifting as other costs rise.

Which brings us to Texas DPS, which has lately come under fire for long lines at driver-license centers. There are essentially two major causes of long lines for renewing driver licenses: Understaffing the Customer Service Center call lines, and the policy decision to revoke a half-million driver-licenses per year to punish nonpayment of fines and fees, most of it for unpaid DRP surcharges.

Underfunding the call center means drivers who can't get DPS on the phone will go into the driver-license centers when many of them could have renewed online. And revoking a half-million licenses per year for nonpayment adds an ever-increasing volume of drivers to the lines who frequently a) cannot renew online and b) have more complex cases to resolve.

So far, legislators have only discussed the first problem: Funding the call center. But eventually, they must address underlying causes of long lines or the problem will recur. The Washington Post reported earlier this year that, among states, "Texas, by far, suspends the most driver’s licenses for failure to pay fines," estimating 1.7 million people with revoked licenses, 1.4 million of whom had their licenses revoked over unpaid surcharges.

So what does it cost to address needlessly long lines at license centers? DPS announced it will request an additional $420 million over the next biennium to deal with long lines: $178.6 million for increased staffing at current offices, $190.1 million to open new offices in high-demand areas, and $51.3 million to boost staffing at the call center.

By contrast, the DRP generates less than $150 million per biennium for hospital trauma centers, and a like amount for the general revenue fund, so nearly $300 million total. But an unintended consequence of the DRP is contributing to long lines at the license centers, which is costing much more than that!

This is like robbing Peter to pay Paul, then still having to pay Paul!

There are other unintended consequences, including major economic detriments from having 1.7 million people with revoked licenses. New Jersey has one of the only comparable surcharge programs in the country, and about a decade ago they performed an extensive survey to analyze the economic outcomes from revoking licenses for unpaid surcharges. In a 2010 blog post, Grits summarized the results thusly:

According to that survey, of persons with suspended licenses whose annual income was under $30,000: (1) 64% were unable to maintain their prior employment following a license suspension; (2) only 51% of persons who lost their job following a license suspension were able to find new employment; (3) 66% reported that their license suspension negatively affected their job performance; and (4) 90% of persons whose license was suspended within this income bracket indicated that they were unable to pay costs that were related to their suspended driving privileges. In addition, of those who were able to find a new job following a license suspension-related dismissal, 88% reported a reduction in income.

We may expect similar results, one imagines, among low-income Texas drivers caught in the same predicament.

Viewed broadly, the economic implications are staggering. In addition to money spent so that hundreds of thousands of extra drivers with revoked licenses can wait in line at the license centers to renew them, the state is losing tax money from reduced income and spending among people who owe surcharges. Plus, Texas' economy suffers from reduced demand as an ever growing cohort of adults experiences the above-cited dings to their earning potential.

Tack onto this the costs passed on to counties and municipal governments for enforcement, particularly regarding DWLI, which has become a perennial problem. In Ector County, for example, driving with an invalid license constitutes the second-most common misdemeanor case prosecuted by the County Attorney after marijuana possession. Local municipal judges and Justices of the Peace face the brunt of these increased caseloads from the DRP and must deal face to face with the seemingly endless sea of drivers under its yoke.

Indeed, one could continue nearly ad infinitum with a list of negative, unintended consequences stemming from DRP license-revocations. A 2015 public policy report, which helped convince the California Legislature last year to end license revocations for nonpayment, articulated some of the additional, hidden costs from, "Using license suspensions to collect debt rather than to preserve public safety."

[T]here are millions of Californians who are not a driving safety threat, but who cannot have valid driver’s licenses. According to the American Association of Motor Vehicle Administrators, this type of license suspension is dangerous because it diverts police officer time and attention from public safety priorities. The police, DMV, and courts spend millions arresting, processing, administering, and adjudicating charges for driving on a suspended license. Add in the cost of jailing drivers whose primary fault was failing to pay, and we have a costly debtor’s prison. 

The current policies are counterproductive for employers as well: there is a cost to hiring and re-training a new person for a job being done well by someone else. It is an unnecessary expense to both employers and the state to pay unemployment insurance for an employee who would be retained if the person had a license. 

Additional costs to the state include the fact that many more families have to rely on safety net public benefits because these millions of suspended licenses are a barrier to gainful employment. There are also the secondary impacts of unemployment on the economy and on families living in poverty; children often bear the brunt of the harms of poverty, and some of these costs will not be fully realized for decades.

All of those critiques apply, in spades, to driver-license revocations in Texas. And most of the half-million annual license revocations in Texas stem from unpaid Driver Responsibility surcharges. Of the 3 million drivers who owe surcharges, nearly half (1.4 million) have had their licenses revoked for nonpayment.

This colossal failure of a program increasingly has become not just a cost-driver for DPS license centers but even a drag on the economy, and by extension, state and local government revenue.

Your correspondent remains hopeful that the 86th Legislature marks the moment when Texas stops looking at driver surcharges as a cash cow and begins to think of them as a money pit. Evidence for that view is becoming increasingly hard to ignore.

See prior, related Grits posts:

• Texas DPS acknowledges short-staffed call center in budget request to reduce license-center lines
• Texas DPS getting a bum rap over proposed driver-license center closures
• How the Driver Responsibility Surcharge contributes to long lines at DPS license centers

Willett decries Catch-22 on qualified immunity for police

Newly appointed federal 5th Circuit Court of Appeals Judge Don Willett last week issued a "concurrence dubitante" (meaning he concurred despite skepticism over the legal proposition at hand) concerning qualified immunity for police officers who violate people's constitutional rights, in this case due to an unconstitutional search. (Check out the case here, his concurrence begins on p. 21; see also coverage from Reason.)

Opined Willett: "To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior."

And he sums up a Catch-22 regarding police litigation that's bothered me for years:

many courts grant immunity without first determining whether the challenged behavior violates the Constitution. They avoid scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent. Forgoing a knotty constitutional inquiry makes for easier sledding. 

However, the judge argued, this failure to analyze the constitutionality of police behavior has (unintended?) consequences:

Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose. 

Willett concluded:

Count me with Chief Justice Marshall: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” The current “yes harm, no foul” imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed. It is indeed curious how qualified immunity excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.

That's an excellent, brief summary of one of the biggest problems with qualified immunity. For more, one of the judge's footnotes included references to several items that readers interested in more detail on the topic may want to review:

• Notre Dame Law Review issue (2018) focused on the future of qualified immunity
• William Baude: Is Qualified Immunity Unlawful?
• Joanna Schwartz: How Qualified Immunity Fails
• John Jeffries Jr.: What's Wrong With Qualified Immunity?