Margaret Moore's self inflicted wounds

Is it just me, or is Travis County DA Margaret Moore behaving like someone who really doesn't want votes in a Democratic primary? She started out her re-election campaign facing serious criticism on the first item below, but the rest seem like self-inflicted wounds.

Serious criticisms of record handling sexual-assault cases
A lawsuit by sexual assault survivors, supported by Austin firefighters, claims indifference by her office: This is easily the most damaging complaint against her, as one of her principle opponents, Erin Martinson, is running nearly exclusively on this issue and has proven quite formidable. Moore digs the hole deeper, though, by responding defensively on the stump and eliding the core complaints. Here's her written response to the allegations in the Austin Chronicle.

Regressive stance on innocence case
Moore wants to retry Rosa Jimenez, an Austin babysitter convicted of murdering a toddler in her care, despite four federal judges having declared she is likely innocent and should be released. After a federal magistrate judge dressed down the DA's office in open court, expect this to become a growing problem for her campaign.

Out of step with party on pot prosecutions
Moore says she supports pot legalization, but when Austin announced plans to move ahead with a local decrim policy, she hyperventilated on Fox claiming violent crime is rising and it's pot related, without providing specifics. How does she imagine such horse hockey will fly in an Austin Democratic primary?

DA of Death
Moore is the only candidate in the race who supports the death penalty: Not only that, on the stump she goes out of her way to suggest hypotheticals when she'd use it, for reasons I can't grasp. In a general election, or a different county, that might be fine. But in a Democratic primary in Austin, she's not saying things the base wants to hear. If I were her consultant, I'd tell her candidate forums aren't law-school class, stick to describing your record. Grits attended a DA candidate forum held by the Circle C Democrats, who later endorsed Erin Martinson. The crowd responded negatively to Moore's answers on the death penalty question.

Opposition to counsel for indigent defendants at bail hearings
Moore does not support making sure people have defense attorneys at magistration hearings where bail is set, even though prosecutors can be there. In all three Texas counties where federal judges have ruled in bail litigation so far, this has been required. And a 5th Circuit panel left the requirement undisturbed when they scaled back Judge Lee Rosenthal's bail-reform order in Harris County. (Harris County responded by eliminating bail requirements entirely for 85% of misdemeanor defendants, avoiding the need for hearings in those cases.) So, reading tea leaves, when the dust finally settles around bail-reform litigation in the 5th Circuit, the likelihood is providing lawyers at magistration will be mandatory, not optional. Declining to do the right thing until you're forced to do so is a bad look.

That's a lot of attack fodder available to Moore's two challengers. When the campaign started, Grits thought Moore would be hard to beat. Now, I'm wondering if she'll even limp into a runoff!

Journalists can always find a cop or prosecutor to contradict good-news data on marijuana decrim, but should they?

Society in general, and Texas in particular, is in such a weird place right now when it comes to marijuana policy. A remarkable debate is emerging which really only appears to exist in the minds of reporters and law enforcement types but, in terms of evidence and data, is a one-sided argument.

A recent article in The New Yorker by Matthew Hutson has earned praise for rightly articulating in a publicly accessible way the differences between the two main measurements of crime in the United States and the difficulties of judging crime trends. It's a useful analysis, I recommend you read his article for that alone.

But setting his data discussion aside, the article was framed in what Grits considered an especially odd and unhelpful way. Hutson posed the question of whether legalizing marijuana causes crime to rise or fall, centering his discussion on a study out of Washington state showing that both rapes and thefts decreased in the aftermath of that state legalizing marijuana.

Hutson offered no data from other states showing that legalizing pot caused crime to increase (the studies mostly say the opposite), but instead, to offer counterpoints, he:

reached out to more than seventy-five county sheriffs in California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington—states where recreational marijuana is legal. (It’s also legal in Alaska.) Of the twenty-five sheriffs who got back to me, half said they hadn’t noticed a trend, and the rest were certain that legalizing marijuana had made crime go up.

For some reason, Hutson valued the opinion of the half of sheriffs who said crime went up over the half who hadn't noticed a trend. (What's half of 25, again?) Regardless, he's asking law-enforcement folks whose professional careers have centered around marijuana enforcement to give their views on a politicized question. Placing that on a scale alongside reported-crime trends and pretending it balances strikes me as more of a (weak) journalist's construction than a true debate.

Ask someone in the coal industry whether power plants should use gas or coal and what do you think they'll tell you? That's essentially what you're asking these sheriffs. If Hutson were to investigate further, Grits would bet dollars to donuts the violent-crime data in their counties wouldn't support their claims. It's just the kind of thing cops say to the press. 

I feel like Texans can say with some certainty that the sky won't fall when police stop making marijuana arrests because, after the Legislature legalized hemp and accidentally made marijuana laws de-facto un-enforceable, enforcement plummeted and there's been no massive violent crime wave in response. It's just not happened.

We don't yet have any academic study of this odd, natural experiment, but as a practical matter, the end of marijuana enforcement in most of Texas has been a big nothingburger in terms of its impact on public safety. If anything, the change has freed up police officers to focus on other things. But that hasn't stopped local law enforcement from playing their perfunctory Chicken Little roles, nor local journalists from providing them a megaphone. 

Pleased with the less-arrests, less-wasted-police-time, no-effect-on-crime, happier-constituents dynamic the new policy generated, the Austin City Council announced plans to codify the results of this natural experiment by directing Austin police to stop making user-level pot possession arrests altogether.

In response, District Attorney Margaret Moore went on Fox News in Austin and declared, with no evidence whatsoever, that "what we've seen that is alarming is an increase in violent crime that goes along with marijuana or THC distribution." Really? We've seen that? Let's see her data. And doesn't she have an asset-forfeiture fund from which she could pay for testing in cases where she truly believes public safety at grave risk? Methinks Chicken Little doth protest too much.

Anyway, the city council isn't recommending police stop enforcing laws against distribution, only penny-ante misdemeanor possession cases that Moore's office doesn't handle anyway. So this is just demagoguery, using the platform afforded by her office to spread misinformation. 

This is a dilemma facing journalists at both the national and local level. If Hutson had called Margaret Moore, she'd happily have joined the Sheriffs claiming reduced pot enforcement increased violent crime. 

Highlighting statements from public officials that contradict the data their own agencies report promotes a false equivalency, exploiting a weakness in the traditional journalism model. The data should be used to debunk official pronouncements that don't match observable facts, not to balance against them and pretend we just can't know.

Execution scheduled based on bogus "future dangerousness" testimony

Much attention has been drawn to the example of A.P. Merillat, the Montgomery County DA investigator and TDCAA favorite son who repeatedly overstated the dangers to inmates and staff at TDCJ in the sentencing phase of death penalty trials. But over the years, many different "experts" have played that role, and he's not the only one overstating the "future dangerousness" of capital defendants while understating TDCJ's ability to manage them.

At The American Scholar, Lincoln Caplan described the sentencing-phase testimony against Billy Joe Wardlow, who is scheduled for execution for capital murder on April 29th. He received his death sentence in 1993 for killing an 82-year old man during a robbery when he was 18-years old. Here's what the jury was told about whether Wardlow would constitute a future danger to others in prison:

The most chilling testimony for the state came from Royce Smithey, an investigator for a group that prosecutes felony crimes committed in Texas prisons. If the jury sentenced Wardlow to death, the investigator said, he would be “segregated” and “severely restricted” until he was executed. He would have limited access to prison employees whom he might harm. Solitary confinement on death row would punish Wardlow and protect prison employees from the continuing danger he represented, Smithey testified. But if the jury gave him a life sentence, he asserted, Wardlow would be released into the general prison population with other felony offenders. 

Recently, Frank G. Aubuchon, who was a correctional officer and an administrator with the Texas Department of Criminal Justice (TDCJ) for more than 26 years, reviewed Smithey’s testimony at the request of Wardlow’s current lawyers. Aubuchon wrote, “Mr. Smithey’s multiple falsehoods served to mislead the jury into believing that TDCJ would be completely unprepared to imprison Mr. Wardlow in a secure environment unless he received a death sentence. Based on my decades of experience as a TDCJ corrections officer, administrator, and prison classifications expert, I can say that this is categorically false.” 

But Smithey’s testimony was uncontested at the trial and made a life sentence for Wardlow sound like a serious threat to others. It would give him the chance to harm other people, perhaps even to kill again. The testimony made a life sentence sound like a reward for Wardlow, not an endless punishment.

Not only were Smithey's dire warnings about TDCJ's ability to manage inmates overstated, predictions that Wardlow in particular would pose a danger turned out to be false, wrote Caplan:

In the Wardlow case, the jury wrongly predicted his future: despite the horrendous crime he committed as a teenager, he has become in middle age a trusted, peacemaking, and in many ways exemplary inmate—generous to others on death row, attentive to fellow prisoners and to others he exchanges letters with, and as engaged in the world as an inmate on death row can be who has spent much of the past 25 years in solitary confinement in a tiny cell.

This blog has complained about "junk science" many times over the years. But not all expert witnesses testifying to "junk" wear lab coats. Many of the complaints by the National Academies of Sciences about forensics amounted to critiques of overstated testimony - e.g., declaring they could "match" evidence to a degree of scientific certainty. In reality, these experts were offering subjective opinions - ones based on observation and experience, to be sure, but also infused with a prosecution-centric agenda.

The example of "experts" predicting future dangerousness in Texas death-penalty cases demonstrate that overstated testimony isn't just a problem with the bite-mark or hair-and-fiber folks. And it certainly goes deeper than just a couple of over-zealous testifiers like Smithey and Merillat.

Parole board now Joe Bryan's only hope after TX CCA's shameful rejection of his habeas writ

The Texas Court of Criminal Appeals' rejection of Joe Bryan's habeas corpus writ may rank as its most embarrassing moment since the 1990s when they refused to recognize DNA evidence exonerating Roy Criner. That episode spurred the Legislature to intervene in 2001 to create a vehicle for DNA exonerations. Will their arrogant, unexplained rejection of Bryan's claims earn a similar backlash?

Bryan's case rose to national prominence after two key events: 1) in 2018, the Texas Forensic Science Commission used it to identify flaws in the overstated way blood-spatter evidence is presented to juries, and 2) Pamela Colloff, an already legendary journalist who cut her teeth covering Texas innocence cases, authored a 22,000 word, two-part cover story for the New York Times Magazine elaborating problems with Bryan's case in overwhelming detail.*

Indeed, Bryan's false conviction has become an important case study used to demonstrate problems with past investigative methods. Reported the New York Times:

Lynn Robitaille Garcia, the general counsel of the Texas Forensic Science Commission, said Mr. Bryan’s case had a significant role in inspiring the state to develop a new licensing program for analysts doing crime scene reconstruction. 

“Everyone now recognizes that was unsupportable work, including the expert himself,” she said in an interview Thursday.

This is an example of the Government Always Wins faction on the CCA exercising raw power to assert their own opinion about the best outcome over the rule of law without fear of significant consequence.

Bryan was in Austin when his wife was murdered 120 miles away in Bosque County in 1985, and the flawed forensic testimony used to accuse him at trial has been recanted as junk science. Had they considered the details, it would have been as obvious to the CCA as it was to New York Times Magazine readers that, without that forensic evidence, Bryan could never have been convicted. So any honest evaluation of the evidence would require they grant him relief.

That left only one option for judges in the court's Government-Always-Wins faction if they wanted the case to stand: Reject Bryan's claim without explaining why. And that's exactly what they did.

“It’s disgusting, really,” said a forensic scientist quoted by the Times. “Judges are not in positions to be arbiters of what’s good science.”

Now that the Court of Criminal Appeals has once again shown its colors, the 80-year-old Bryan's only hope of relief is the Board of Pardons and Paroles. He is up for consideration in April, according to TDCJ's website. In 2019, they rejected his parole, despite an exemplary behavioral record in prison, based on the "nature of the offense." But with credible evidence available that Bryan never committed the offense in the first place, combined with his advancing age and the length of time already served, the parole board should finally release Joe Bryan in the interests of justice.

Bryan's attorneys have requested folks write letters to the parole board in support of his release, hoping to get as many letters as possible by the first week in February. On Facebook, they wrote:

We need the parole board flooded with letters of support on Joe's behalf. You can either e-mail one or send a written letter to the options below: 

E-mail: paroleforjoe@gmail.com
Mailing Address: Place Law Office
109 S 7th St., Gatesville, TX 76528 

Address your letters to the Board of Pardons and Paroles and please send them by the first week of February!

Bryan's TDCJ number is 00419509; be sure to include it in your correspondence. Alternatively, you can send support letters directly to the parole board. It wouldn't hurt to let the Governor know your opinion, either.

Grits readers, please do this. Y'all know better than most Texans what an embarrassment our Court of Criminal Appeals has been over the years. Don't let their un-elaborated rejection be the final chapter in Joe Bryan's story.

* Grits interviewed Colloff about the case after her article came out.

On the limits of regression analysis by economists and justice researchers

Since Grits recently issued dire complaints regarding the role of economists in criminal-justice policy, the publication of this statistician's related complaints the following day set off all sorts of wonderful, confirmation-bias-generated dopamine in your correspondent's brain, as well as filling out a more rigorous critique of economists' use of regression analysis only hinted at in my offering. The author, Andrew Gelman, writes about the interdisciplinary use of statistics in the social sciences. In his view:

We’re in a situation now with forking paths in applied-statistics-being-done-by-economists where we were, about ten years ago, in applied-statistics-being-done-by-psychologists. (I was going to use the terms “econometrics” and “psychometrics” here, but that’s not quite right, because I think these mistakes are mostly being made, by applied researchers in economics and psychology, but not so much by actual econometricians and psychometricians.) 

It goes like this. There’s a natural experiment, where some people get the treatment or exposure and some people don’t. At this point, you can do an observational study: start by comparing the average outcomes in the treated and control group, then do statistical adjustment for pre-treatment differences between groups. This is all fine. Resulting inferences will be model-dependent, but there’s no way around it. You report your results, recognize your uncertainty, and go forward. 

That’s what should happen. Instead, what often happens is that researchers push that big button on their computer labeled REGRESSION DISCONTINUITY ANALYSIS, which does two bad things: First, it points them toward an analysis that focuses obsessively on adjusting for just one pre-treatment variable, often a relatively unimportant variable, while insufficiently adjusting for other differences between treatment and control groups. Second, it leads to an overconfidence borne from the slogan, “causal identification,” which leads researchers, reviewers, and outsiders to think that the analysis has some special truth value. 

What we typically have is a noisy, untrustworthy estimate of a causal effect, presented with little to no sense of the statistical challenges of observational research. And, for the usual “garden of forking paths” reason, the result will typically be “statistically significant,” and, for the usual “statistical significance filter” reason, the resulting estimate will be large and newsworthy. 

Then the result appears in the news media, often reported entirely uncritically or with minimal caveats (“while it’s too hasty to draw sweeping conclusions on the basis of one study,” etc.).

Sound familiar? I couldn't begin to count the number of criminal-justice-related news stories I've seen over the years built around that formula. Gelman cast shade on journalists for not interrogating academic research more deeply, but his sharpest message was for economists:

Savvy psychologists have realized that just because a paper has a bunch of experiments, each with a statistically significant result, it doesn’t mean we should trust any of the claims in the paper. It took psychologists (and statisticians such as myself) a long time to grasp this. But now we have. 

So, to you economists: Make that transition that savvy psychologists have already made. In your case, my advice is, no longer accept a claim by default just because it contains an identification strategy, statistical significance, and robustness checks. Don’t think that a claim should stand, just cos nobody’s pointed out any obvious flaws. And when non-economists do come along and point out some flaws, don’t immediately jump to the defense. 

Psychologists have made the conceptual leap: so can you.

There's much more, you should go read it. Gelman also has an earlier essay hypothesizing how economists justify to themselves the fairly obvious contradictions in their worldview that seem self-evident to nearly everyone else listening to them. I enjoyed both these offerings.

Couple Gelman's observation about limits of the methods economists use with Grits' analysis of the limits of the data they're analyzing and the foundations underlying their mathematical pronouncements in the justice realm begin to crumble. As I'd written the other day:

The greater problem with applied math in the criminal-justice realm is the data to which said math is applied. The justice system typically doesn't gather data on the points upon which policy debates often hinge. Rather, it gathers data at the points where different bureaucratic entities interact when dealing with an individual. Cops hand off suspect to the county jail: a record is created. Charges filed by prosecutors on that person: another record is created. Then more, potentially, as prosecutors interact with judges and defense counsel, as those convicted enter prisons or probation, and so on. 

For the most part, data generated from these interactions cannot answer the most pressing questions facing the justice system, such as what causes crime to rise or fall, what causes people to desist from crime, what incentives face various decision makers throughout the process, etc..

Economists aren't policy makers (even if some of them aspire to be). But taken as a whole, their profession allowed, and often encouraged, the misuse of economic theory to justify and bolster the ideological underpinnings of mass incarceration. Before the #cjreform movement looks to economists for further solutions, Grits believes we should demand their assistance in exposing and undoing that harm.

MORE: Wow, the rabbit hole goes even deeper!

Sheriff candidate targeted for refusing to train detectives in Reid technique, prioritizing rape victims ... and this is an attack, how?

Until now, Austin PD brass, investigative reporters who studied the case, and Sgt. Liz Donegan all agreed: Donegan was removed as head of the Sex Crimes Unit in 2011 because she insisted on following the FBI Uniform Crime Report's definitions on whether a rape case is "cleared" while APD brass wanted her to fudge the numbers to boost the clearance rates upward. Regular readers will recall the scandal at the Austin PD, first reported on the national podcast, Reveal. Chief Bryan Manley portrayed the incident as a policy disagreement that was resolved with her removal.

When she was gone, clearance rates for the unit predictably skyrocketed. But an independent analysis by the Department of Public Safety found APD was improperly misclassifying many cases as "cleared." In other words, Donegan was right and should never have been removed. Donegan, ultimately left the department and is presently running as a Democrat for Travis County Sheriff. See Grits' prior coverage of her story and the fallout, here:

• Whistleblower: Austin PD fudged rape clearance rates to boost numbers, pretend hundreds of crimes were solved when no arrests were made
• Austin police chief needs better responses to whistleblower allegations of improperly cleared rape cases
• More than a clerical error: DPS audit proves Austin PD forced out sex-crimes chief for refusing to fake clearance rates
• Third party will review rape-clearance data that spurred ouster of Austin PD division chief
• Austin PD chief is the last person who should be giving other chiefs advice on rape-clearance data
• Austin's Chief Manley blames victims for misunderstanding his victim blaming comments

It's important to note that Chief Manley has never disputed that Sgt. Donegan was removed from the Sex Crimes Unit over the categorization of cleared cases. He just insisted she was categorizing them wrong. Then, at 4:45 P.M. on New Years Eve in 2018, the chief released the results of the DPS analysis declaring Donegan was right about the clearance-rate definitions and APD brass had made a mistake. Last I heard, APD said it would take at least until 2022 (!) to figure out how to adjust their policies going forward.

Nobody at the time claimed Donegan was removed because she was too victim-centric or had failed to train new detectives. But now, six weeks before the primary election that will decide if she becomes the next Travis County Sheriff, we hear these allegations.

The Austin Statesman was largely uninterested in covering this story when it was Chief Manley's turn in the barrel, but now has begun filing open records requests on Donegan and uncovered a memo, apparently contemporaneous with her ouster, which neither Donegan nor investigative reporters who earlier had peppered the agency with open-records requests had ever seen before. (My guess: someone must have leaked where it was and how to ask for it.) In it, an Austin PD Lieutenant both praised Donegan, in many respects, but also criticized her. The memo was presented to an APD Commander as providing a justification for Donegan's removal.

The memo, from Lt. Michael Eveleth, began by declaring he was promoted out of the Sex Crimes unit shortly after Donegan's arrival. So most or all of this is second-hand, not things he witnessed personally working under her. Many direct criticisms were pulled from detective surveys.

For starters, though, the memo began by praising Donegan at length, although hardly a whisper of that praise made it into the Austin Statesman's hit piece on the topic. For example:

Sgt. Donegan has fought for resources and additional investigators and has brought national recognition to the Austin Police Department's Sex Crimes unit. She has been instrumental (along with the Austin Travis County Sexual Assault Response and Resource Team, Safeplace and Victim Services) in educating the public and law enforcement in regards to stranger vs. non-stranger sexual assaults. Sgt. Donegan recognized that most sexual assault training addressed stranger assaults, when in reality, most offenders are known to the victim.

It's also worth pointing out that, by his own admission, Eveleth never made any of these criticisms to Donegan's face.

I truly believe that Sgt. Donegan has done a great job locally, statewide and nationally in educating and informing the law enforcement community, and the public, about the struggles and challenges of sexual assault victims and difficulties in investigating and prosecuting those cases, especially non-stranger. She also cares about her detectives and has always been supportive of them when they have had to deal with personal and family matters. I have shared with Sgt. Donegan that I believe she has made great strides with the Austin Police Department's Sex Crimes Unit.

But what Eveleth said to Sgt. Donegan and what he said to APD Commanders about her were wildly different things. While he told her she'd made "great strides," he told APD brass that "the national recognition, the educational campaigns, and the outside training has had significant consequences on the Austin Police Department's Sex Crimes unit," which suffers from a "void in day to day supervision." With friends like that, who needs enemies!

Eveleth's biggest complaint was that, even though all the data agreed with Donegan that non-stranger sexual assaults should be a bigger priority, he disliked reduced emphasis on stranger-assualt cases because those are "the type of assaults that the media reports on." A detective quoted says stranger rapes should be a bigger priority because "these are the cases that make the news." Eveleth lamented that Donegan had hesitated to encourage sensationalized media coverage on stranger rapes without full information. Eveleth wanted the department to issue a media release in one such case because those are the incidents that "garner the most attention."

Eveleth cherrypicked from detective surveys saying Donegan is too "one-sided" on behalf of crime victims' interests and too much of a "victim advocate." This is maybe the first time I'd heard that used as an internal criticism of a police officer! (In his prose, Eveleth mentioned that some detectives expressed pride at Donegan and the division's work and supported the unit's mission, but only negative quotes were pulled out to be highlighted.)

His other big complaint was even more telling and, if local reporters understood what they were reading, in reality reflects quite well on Sgt. Donegan. Eveleth was unhappy that she did not embrace having her detectives trained in the "Reid technique" for interrogating suspects. He was upset that only one person from her unit attended a training organized by the department.

The Reid technique emphasizes befriending suspects on the front end, then accusing them aggressively, threatening them with worst-case scenarios and hoping they'll crack. Grits readers will recall many articles on this topic, and lately it's starting to be abandoned by interrogation experts.

Honestly, it's very much to Donegan's credit that she failed to send her people to that training; these are methods that have been directly associated with false convictions. Austin PD shouldn't be training any detectives to use them.

So the complaints seem to be that 1) she refused to train her officers in techniques that produce false convictions; 2) she prioritized victims and their interests; 3) she refused to promote sensationalized media coverage before a case had been investigated; 4) some of her detectives thought they needed more training, and 5) national attention and accolades had left her too big for her britches.

Given the machismo-oriented departmental culture, any successful woman at APD would be criticized for #5. To me, #4 seems like something open for interpretation (especially if the training available is Reid-technique oriented). And #1-3 sound like badges of honor!

Steering the Statesman reporter toward this document was likely a campaign-driven attack, but it hardly matters. To anyone with enough context to understand what they're looking at, this document endorses Donegan more than it critiques her. Regrettably, "Statesman readers" do not necessarily number among those privy to context when it comes to local criminal-justice reporting.

On the damage done by economists to criminal-justice policy: A personal polemic

In December, Grits was pleased to meet Texas A&M Associate Professor Jennifer Doleac, an economist who seeks to apply econometric methods to crime policy. Prof. Doleac runs a podcast called Probable Causation, on which she interviews economists about their criminal-justice-related work. She is an avid promoter of her profession. In her view, "if anyone is equipped to design solutions to existing problems and test whether they worked, it is economists."

Despite some fundamental disagreements, which will become evident shortly, she and I enjoyed a friendly and lively discussion. The following day, doctors put me under the knife. (Healing fine, thanks; radiation treatment begins soon.) But while recuperating over the holiday, our conversation got me thinking about what Grits has long considered the misbegotten role of economists in the making of criminal-justice policy. So I hope readers will forgive these longer-than-usual reflections on ideas Grits has been mulling over for several years.

To be fair, and fully transparent, I come to this conversation with baggage. Grits was an economics major at UT-Austin in the 1980s. But I left without a degree because, by the time I'd taken enough economics courses to understand the theories being propounded and the math behind them, I could tell they were filled with what seemed to me self serving lies, obviously false assumptions, and generally a great deal of intellectual guesswork being laundered through phony equations and masquerading as erudition. My interest in academic work flagged alongside confidence in my chosen field of study and pursuing another major would have added another year. So when your correspondent was offered full-time journalism work, I dove into it.

Not long ago, Richard Thaler received a Nobel Prize for his pioneering work in what's now called "Behavioral Economics," representing first steps toward a corrective for some of the flaws Grits identified as a student. "Behavioral economics" is shorthand for economists belatedly discovering the fields of psychology and sociology, as well as more honestly considering real-world marketing methods and the role of non-financial incentives. However, these are mostly micro-economic analyses (individual business or consumer decisions), not macro (how the economy works overall).

My college experience left Grits highly skeptical of economic theory, which at the macro level enjoys scarce more validity today than when I was a student. So it was admittedly with a shade of schadenfreude that Grits nodded approvingly at a recent Wall Street Journal retrospective titled, "Economists got the decade all  wrong. They're trying to figure out why."

Here's the thing: Economists also got the decade before that wrong! Following the onset of the 2008 economic crisis, then-Federal Reserve Board Chairman Alan Greenspan famously declared that the Fed had been operating under mistaken assumptions about the economy and corporate behavior.

And they were wrong before that, too! Balanced budgets combined with sustained economic growth and low inflation during the Clinton Administration flew in the face of all the models I was taught in the '80s.

Insofar as economists' job is to describe and predict the workings of the economy writ large, the profession has proven shockingly un-moored from reality, seeking to impose anachronistic theoretical models on situations that seldom conform to their assumptions in real life.

Dubbed the "dismal science" because of predictions of recessionary doom, economics more aptly deserves the "dismal" assessment because of its failure to produce useful results. As a field, economics has spent decades groping in the dark for relevance, blind to the reality that their byzantine modeling appears incapable of predicting real-world outcomes.

It's in this context that so many recent economists have latched onto criminal-justice topics. Unable to understand or explain the economy with their anachronistic theories, and having had their failures repeatedly exposed by the vicissitudes of history, they pretend the justice system is filled with "rational actors" and seek to apply the same ill-conceived assumptions to fresh terrain.

The late Gary Becker, winner of the Nobel Prize in 1992, was the first economist to attempt this trick. But his claims regarding what economic theory could explain vis a vis crime remained relatively restrained compared to what we see today. Becker limited his theorizing to property crimes, in which he tried to describe via mathematical modeling the cost-benefit analysis undertaken by a rational criminal. His assumptions work, more or less, for the "crime" of tax evasion - where you really do have rational actors making purely economic judgments - but immediately fall apart when applied to the sorts of crimes that generally fill jails and prisons.

Grits doesn't blame Becker for attempting to describe the world through math. His approaches have borne fruit in other areas like employment discrimination, which his disciples have much more usefully theorized. Rather, I blame policy makers for failing to recognize the shortcomings of Becker's (and his disciples') criminal-justice models, instead using them to establish a scientific veneer for simplistic-and-ultimately-false cost-benefit assumptions underlying mass incarceration.

Economists and their progeny have done a great deal of damage promoting criminal-justice policies based on Beckerite theorems. You don't see it as often these days, but in the 1980s and 1990s you couldn't swing a dead cat without hitting some John M. Olin professor of law and economics explaining to the public why tuff-on-crime policies were the way to go.

Too often, economic models simplistically assume criminals are rational actors and seek to influence their decisions through the "price" of criminality, i.e.,  punishment. This makes economists mostly a one-trick-pony in the policy arena: More punishment (increasing the price) applied more efficiently to more people becomes the solution to every unwanted behavior, from violent crime to scooters on the sidewalk.

When your only tool is a hammer, everything looks like a nail.

The fallacy of applying price theory to criminal punishment becomes fully evident as soon as one examines real-world situations. Take child molestation, one of the most terrible and despised crimes on the books. Applying an economists' frame, society should therefore apply extremely harsh punishments to maximize deterrence.

In reality, harsh punishments often deter reporting, leading to justice for fewer people. ("Yes, Uncle Ted fondled my privates, but I don't want him to go to prison, for my cousins to lose their father, for my Aunt to suffer financial insecurity," etc..)

Indeed, given harsh punishments on the books for the offense and the extent of public disapprobation associated with it, if child molesters were the rational actors Beckerite economists imagine, no one would ever engage in the behavior. But the nuances of human decision making stem from all manner of seemingly irrational impulses (some of which are intermixed with or disguised as rational ones).

The use of the justice system as a substitute for mental-health services and addiction treatment distances these rational-actor models even further from reality. Neither does the approach work within a coercive plea bargaining setting.

Alternatively, people may behave rationally along different vectors than simply demanding more-or-less punishment. E.g., victims may feel traumatized by the system, or even vulnerable to it out of their own potential criminal liability, to the point where they prefer crimes go unpunished than subject themselves and their families to its machinations.

All that said, Grits remains a consumer of academic economists' work on crime, some of which I find useful. That's mainly because most economists' criminal-justice work these days isn't really economics. It's applied mathematics.

Dr. Doleac's podcast is dubbed "Probable Causation." The name refers to Bayesian mathematical approaches using regression analysis to identify which variable may be associated with this or that observed change in the world. But probabilistic math is no more an "economic" approach when applied by economists than it is a "biological" approach when used for DNA-mixture analysis. Indeed, as Grits surely has no qualms about applying math to data, much of 21st century economists' work on justice topics may escape my criticisms of Becker, et. al., above.

The greater problem with applied math in the criminal-justice realm is the data to which said math is applied. The justice system typically doesn't gather data on the points upon which policy debates often hinge. Rather, it gathers data at the points where different bureaucratic entities interact when dealing with an individual. Cops hand off suspect to the county jail: a record is created. Charges filed by prosecutors on that person: another record is created. Then more, potentially, as prosecutors interact with judges and defense counsel, as those convicted enter prisons or probation, and so on.

For the most part, data generated from these interactions cannot answer the most pressing questions facing the justice system, such as what causes crime to rise or fall, what causes people to desist from crime, what incentives face various decision makers throughout the process, etc.. To quote sociologist William Bruce Cameron (not Einstein, despite the internet memes), “Not everything that counts can be counted, and not everything that can be counted counts.” Less well known, Cameron added, "if all of the data which sociologists require could be enumerated ... then we could run them through IBM machines and draw charts as the economists do."

The New Yorker recently published an essay demonstrating the difficulties of drawing firm conclusions from available criminal-justice data, and really that column only scratches the surface. We all rely on the same, limited information and certainly Grits readers see me crunch numbers all the time, where available, on this site. But in my experience, often available data can only give us a sense of what's going on, not provide definitive answers. Ever-more regression analyses on the same, incomplete datasets frequently yields little more insight than first-cut calculations.

There are, of course, happy occasions when some weird natural experiment affords unique opportunities for probative comparisons. Or sometimes, as with Texas racial profiling data, which was expanded in 2018 to include a wider array of datapoints, as mandated in Rep. Garnet Coleman's Sandra Bland Act, the government can gather more probative data if they're made to do so. (I'd love to see some heavyweight number crunchers tackle that new dataset, the next iteration of which comes out in March.)

But we don't have data to answer most of the biggest questions facing the justice system with any more nuance than an ape wields a sledgehammer. And society has suffered enough from economists recommending the sledgehammer in response to every criminal act.

MORE: On the limits of regression analysis by economists and justice researchers

Made-up informants, prosecutor misconduct, reacting to crime in Dallas, and other stories

Here are a few odds and ends that merit Grits' readers attention on a big football weekend:

How deep does the rabbit hole go in Houston PD narcotics scandal?
Gerald Goines, the Houston PD narcotics officer at the center of the scandal surrounding a botched drug raid based on a fabricated informant, allegedly set up innocent people in other cases. In the latest episode, Goines alleged mendacity combined with what the post-conviction division chief at the DA's office called a "quintessential" example of prosecutor misconduct. In related news, Houston PD paid $1.2 million to the family of a black man shot by one of its officers in 2014 to settle a wrongful death suit.

San Antonio crime lab to use disputed DNA mixture software
San Antonio PD crime labs announced they will begin using STR-Mix software to analyze DNA mixture evidence. That's fine, as long as they analyze samples with a maximum of three contributors, with 20 percent or more of the sample coming from suspect in the case. A federal judge in Michigan recently declared the software shouldn't be used for more complicated mixtures. And while her ruling doesn't apply in Texas, the debate throws the future of the STR-Mix approach up in the air for more complicated mixture evidence.

Audit: Dallas PD too easily dismisses, loses, or ignores citizen complaints
An audit of the Dallas PD complaint process skewered that agency's handling of misconduct allegations, reported the Dallas Observer. The audit "criticized the department for allowing sergeants wide latitude in deciding whether to investigate, or even document, a complaint. Anonymous or third-party complaints were ignored, a practice that has been criticized by the Department of Justice."

Ready, fire, aim! Dallas' reaction to recent murder uptick
A Dallas Mayor's task force recommended non-policing methods of crime reduction, mostly blight remediation, improved lighting, training formerly incarcerated people as "violence" interrupters, and improving mentor programs in schools. These are all feel-good programs, and if crime goes down in their wake, Dallas pols can take credit. Notably, though, this article from the New Yorker on interpreting crime data should be required reading for everyone participating in the debates over Dallas crime rates. While every murder is a tragedy, from a statistical perspective, because the numbers involved are relatively small, annual fluctuations may amount to just noise. Regardless, if crime goes down next year, those same voices will attribute the reduction to their own actions. If crime increases, they'll call for the chief's head on a platter. We've seen this movie countless times; both reactions demonstrate hubris. The media and local politicians in Dallas are reading way too much into relatively limited data.

Progressive prosecutors and sex crimes
This Appeal article on how "progressive prosecutors" treat sex crimes cases resonates as the Travis County Democratic District Attorney primary debate has largely centered around these questions. The incumbent, Margaret Moore, has been criticized on the campaign trail for her record and announced she wouldn't attend an upcoming candidate forum on the topic.

Unspeakable tragedy for Atatiana Jefferson's family
Both the mother and father of Atatiana Jefferson, the woman killed by Fort Worth Police last fall while she was babysitting her 8-year old nephew, have died since her tragic death. At the time Jefferson was shot, she had moved home with her mother to become her caretaker as her health declined. Her mother died  on January 9.

HPD shoots 4 so far in January, one unarmed
Houston PD officers have shot four people since the beginning of the new year. One of them was unarmed.

Mental health first response
KUT has an update on changes in progress at Austin PD related to how mental-health calls are handled. The City Council funded a new system to have non-police responses to many suicide and other mental-health-related calls, but the details haven't been ironed out and it hasn't rolled out yet. In related news, the Texas Court of Criminal Appeals has published a statewide Mental Health Resources Guide.

Barriers to reentry
"There is a deep level of material hardship in the first year after leaving prison, especially among those with the most physical and mental health traumas," wrote Bruce Western in this research brief from the University of Wisconsin. In related research, Texas was one of the four states in which prisoners were tracked in this reentry study out of Florida State.

Politics of criminal justice
Read an interview with Rachel Barkow on the politics of criminal justice.

Should Texas switch to non-partisan judicial elections?

The Texas Judicial Selection Commission, created by the Legislature last year, says Lone-Star-State judges should be selected in non-partisan elections. The immediate concern is that experienced judges are being ousted by less experienced ones in partisan sweeps, leaving the state's judiciary bifurcated along party lines. With the state's larger counties and some appellate seats turning blue, the state's high courts and most appellate bodies are still controlled by Republicans.

Maybe it's true Texas is losing experienced judges. OTOH, for example, a partisan sweep enabled Harris County to settle its bail litigation, which the old judges had dragged out for years, spending many millions on unnecessary legal fees to oppose bail reform. Certainly, Harris County courts gained more diversity in 2018. And some of those ousted judges allegedly had suborned misconduct among the magistrate judges. So I'm not sure that particular round of turnover was something we really to truly lament.

And how many judges are we really talking about here? According to this chart from the commission's report, 19% of judicial races turned over in 2018.

Much of that volume was due to Harris County (plus Fort Bend and a handful of others); those seats likely won't turnover as much in the future. So there will be momentary upticks in judicial departures as various jurisdictions flip from red to blue, then the incumbent advantage will likely continue to hold going forward. In the meantime, let's keep in mind that 81 percent of appellate and district judges held onto their seats in 2018, so it's not exactly like the barn's on fire and all the experienced judges fled!

Also worth mentioning: Fewer than half of those who left the bench in 2018 lost an election; many left on their own or hit mandatory retirement.

Grits doesn't necessarily disdain non-partisan elections. In a vacuum, they're a better idea than partisan ones. Make Grits Philosopher King and I'd probably prefer some sort of nonpartisan nominating commission. So I consider non-partisan elections a step in the right direction.

But this isn't happening in a vacuum. It's being suggested to stave off future partisan transitions in urban counties like we witnessed in 2018. That doesn't make it a bad idea. But since Democratic judges have been more supportive of bail reform, in particular, the move could slow progress in that arena.

In the end, Grits would probably support non-partisan elections just to get Court of Criminal Appeals races out of the Republican primary sooner than later. But the timing of the suggestion is another reminder that hypocrisy is the tribute vice pays to virtue.

Dallas PD pursuit policy wouldn't have allowed DPS pursuit that lead to shooting, qualified immunity prevents prison-conditions suit, court records lost to history, and other stories

Let's clear some browser tabs. Here are a number of recent items that merit Grits readers' attention:

Dallas PD pursuit policy wouldn't have allowed chase that led to DPS troopers shooting kid last summer
Video was finally released from the shooting by DPS troopers deployed in Dallas last summer. Troopers engaged in a pursuit when a driver failed to pull over for failure to signal a lane change, then shot him in his driveway. The driver was armed but body cam footage doesn't show him firing his weapon or aiming it at police. Notably, the pursuit would not have been allowed under the Dallas PD pursuit policy, which forbids pursuits except for felonies involving violence, providing support for other law-enforcement agencies' pursuits, if the suspect fired or displayed a firearm in a threatening manner, or when "the officer reasonably believes that the immediate need to apprehend the offender outweighs the risk to any person of collision, injury or death." Otherwise, "all other pursuits are prohibited." This kid would still be alive if the Dallas PD policy were followed - a great example why state troopers shouldn't be tasked to perform urban policing.

5th Circuit: Qualified immunity prevents valid prison-conditions suit
Qualified immunity prevented a TDCJ prison-conditions lawsuit from going forward in the 5th Circuit, reported Andrew Cohen via the Brennan Center. The 5th Circuit ruled that the evidence indicated officers acted with “deliberate indifference” and subjected the plaintiff to a “substantial risk of serious harm” by housing him in a cell smeared floor to ceiling with feces and mocking him when he complained. But they threw the suit out, ruling defendants were protected by qualified immunity.

Historical court records 
Trying to use criminal-court records to investigate lynchings in Denton from the 1920s, a grad student discovered many had been lost to history.

Reforming parole
Right on Crime has produced a new policy brief on "Modernizing Parole Supervision." See also, new parole reform proposals out of West Virginia.

Bias, fairness, and risk assessments
It's a relatively simple matter to adjust risk assessment scores to reduce disparities in false positive rates by race, declared criminologist Andrew Wheeler. But the results exacerbate false negatives (i.e., times when the assessment fails to identify a high-risk person). And there are other vectors of fairness, by which risk assessments may be reasonably judged.

Reconsidering recidivism
Check out an academic critique of recidivism rates as a reform metric, see a summary of the analysis from The Crime Report. Grits agrees with much of her critique and thinks one can even go further. In high-incarceration-rate states like Texas and Oklahoma, recidivism rates are lower because we incarcerate so many low-risk people. Reforms that reduce incarceration of low-risk folks, in that environment, as a result can cause recidivism rates of those who remain to rise.

Conflating federal/state systems to demagogue vs. bail reform

The Dallas Morning News editorial board issued one of the most ignorant, counter-productive commentaries on bail reform I've seen in a while. They announce that:

there is another type of bail “reform” that is growing into a national movement championed by some district attorneys. This type of bail reform drives toward the uncritical release, on outrageously low bonds, of people accused of violent crimes who have a history of violent behavior.

This, of course, is a bald-faced lie. They quote no district attorneys suggesting this because none of them ever have. But that doesn't stop them from pretending that Dallas DA John Creuzot somehow merits criticism on this vector:

Dallas District Attorney John Creuzot has been a leading voice for bail reform, just as he has led Dallas in the embrace of refusing to prosecute low-level crimes. We don’t believe his approach is the most effective to keep Dallas secure, especially in its most vulnerable communities.

The editorial board would like to pretend they support bail reform, just not John Creuzot's brand. What bail reform do they support? None, really. They're engaging in misdirection, attempting to blame bail reform for the failings of the status quo. 

They were reacting to a column by the US Attorney for Texas' Northern District whose headline posed the demagogic question, "Why are many violent criminals back on the streets shortly after being arrested?" Given that crime rates remain at 40-50 year lows, that's awfully phony framing. Despite an uptick this year, on the whole, Dallas residents remain less likely to be victimized by violent crime than at any time in decades. Yes, in a city with so many people, one can always identify scary anecdotes. But overall, crime rates are way down.

The USA's commentary and the Dallas News' editorial board's less nuanced, more ham-handed, and fundamentally stupider assessment both hinge on a misunderstanding of the differences between federal and state law on bail. IMO, the USA intentionally elided these differences. The Morning News' editorial board appeared simply ignorant.

Here's the deal. The federal system doesn't use money bail at all. Instead, there exists a concept called "preventive detention," so most people are simply let go pending trial. OTOH, if they're deemed an imminent danger to the public, defendants may be detained without bail. That's not how it works under the Texas Constitution, Sec. 11a, which in fact forbids preventive detention in all but a handful of circumstances. Everyone else is entitled to money bail, and if they can afford to pay, they are released.

The case of David Cadena, which the Morning News portrayed as the poster child for their stance, offers a case in point. He didn't meet criteria for preventive detention and so he was granted bail for his alleged violent offenses, posting $20K and $25K in two separate incidents.

This is how the system has worked forever: If you have money, you get out of jail; if you don't, you stay in. That's not the fault of bail reform, that's the old-fashioned money-bond system at work. Certainly it's not a function of anything John Creuzot did!

The USA and the Dallas Morning News both pretend that judges had the option of detaining Cadena indefinitely when, in reality, setting bail was required. 

Meanwhile, neither the USA nor the editorial board deny there's a big problem with low-level offenders languishing in jail  because they can't make bond. But they blow past the issue to speciously blame bail reform (which hasn't happened in Dallas) for violent crimes happening under the legacy system. That's disingenuous.

Grits is unsure why a federal prosecutor would stick their nose into these local issues except perhaps for a Trump appointee wanting to score political points against urban Democrats. But the Dallas News routinely offers the worst coverage in the state on all criminal-justice topics, harking back to '90s-era demagoguery in both news and opinion pieces far more frequently than other Texas MSM outlets. This was par for the course for them.

Texas' natural experiment on marijuana shows decriminalization brings relief to an over-strained system

The number of marijuana arrests in Texas has plummeted since June, when the state legalized "hemp" and, as a result, accidentally erected new barriers to prosecuting marijuana cases, de facto decriminalizing pot in some jurisdictions. At the time the law passed, Texas crime labs had no way to distinguish between legal hemp and illegal marijuana.

The result, reported Jolie McCullough at the Texas Tribune: The number of new marijuana cases filed by prosecutors plummeted by two thirds, from an average of 5,900 per month last year to 1,919 in November.

Think about that: Thanks to this happy accident, nearly 4,000 fewer people per month will be prosecuted. Less widely discussed: Texas crime labs will receive nearly 4,000 fewer marijuana samples per month for testing. That's roughly 48,000 fewer per year.

This reduction in volume comes at a time when Texas crime labs, especially at the Texas Department of Public Safety, face extreme backlogs, with the biggest backlogs by far in testing seized drugs and DNA evidence.

Last year, state Rep. Terry Canales voiced complaints about outlandish wait times for DPS to test evidence in the Rio Grande Valley, complaining that in many cases it takes years to test the evidence.

If justice delayed is justice denied, it's surely being denied in cases where crime labs require years to test evidence. Imagine you're a defendant awaiting trial who can't make bail. Who wouldn't accept a plea deal for anything other than a long prison sentence? Certainly for the 4,000 people per month who would have otherwise received a misdemeanor marijuana charge, there's an enormous incentive to plea rather than wait months or years for lab results to come back. 

Given the state of crime lab delays, Grits would argue it would be irresponsible to ramp up the number of user-level marijuana cases to past levels because it soaks up so many resources the crime labs need for more serious crimes. (There are other reforms needed to solve crime-lab backlogs, but if they're not going to embrace them, policy makers should embrace every opportunity they have to reduce the volume of crime-lab submissions.)

In addition, to the extent that a significant proportion of those 4,000 pot cases would have been people deemed indigent and entitled to have the county appoint them a lawyer, this happy development has reduced local indigent defense costs at a time when caseloads remain high despite dropping crime.

Prosecutors in Harris County and elsewhere have lately complained of high caseloads. Well, reducing misdemeanor caseloads by nearly 50K per year statewide surely helps with that problem.

In addition, since marijuana possession is a Class B misdemeanor, most of those 4,000 people per month would have been booked into the county jail upon arrest. (A few jurisdictions take advantage of police authority to cite pot possessors instead of arrest them, but overall, not many.) Local jail costs average around $60 per day, but that's somewhat misleading. Most people arrested for pot get out in a relative short time. However, the first day is more expensive because jail-intake processes require medical and mental health assessments, pretrial services questionnaires, immigration checks, DNA swabs, etc.. Estimates I've seen put first-day costs closer to $150-$200 than $60.

So reducing the number of marijuana prosecutions - and hopefully, also arrests - translates to significant, welcome relief for an over-strained system across many vectors.

This impromptu natural experiment has demonstrated that marijuana can be decriminalized in Texas with no noticeable detriment to the public weal. Certainly there's no evidence public safety has been harmed in the least by this radical reduction in pot prosecutions. Meanwhile, nearly 4,000 fewer people per month are subjected to the expense and indignities of arrest for a "crime" most Texans fundamentally do not believe should be one.

Grits would be interested in two datapoints that weren't covered in Jolie's story. On the first - which prosecutors are still pursuing marijuana cases - we got anecdotal info:

Without public lab testing available, some police agencies turned to private labs — but at a cost. In North Texas, Frisco and Plano police said last month that they continue to pursue all suspected marijuana offenses, submitting cases to private labs for testing. The Collin County district attorney now requires lab results for misdemeanor cases, according to Gail Leyko, the Plano Police Department’s legal adviser. She said all marijuana cases are still being prosecuted, but it costs the city hundreds of dollars more per test to go through private labs that can determine THC concentration.

Grits couldn't figure out how to query OCA data to identify which prosecutors are still pursuing pot cases, but I'd sure like to know. In an era when more prosecutors than ever are being successfully challenged at the polls, that's information voters could use to judge the wisdom with which prosecutorial discretion is exercised.

My second question about this news: Jolie is counting how many marijuana charges were brought by prosecutors. That's a different number from "how many people were arrested for marijuana?" Those arrest data aren't publicly available yet, but I wonder if folks are still being arrested and taken to jail over alleged marijuana possession in greater numbers than we see here, only to have prosecutors dismiss or refuse to file charges? 

Grits considers this welcome news, but there's still a lot we don't know: Who is still being arrested, and by whom? Who is still being prosecuted, and by whom? Who is being arrested but not prosecuted and what happens to them? ¿Quien sabe?

Finally, the question arises, how should the Texas Legislature respond to this from a policy perspective? Governor Abbott has made it clear we'll see no special session on the matter, so Grits would expect to see these low arrest numbers continue, or even drop further, in the near future, perhaps upticking later in the year as a few jurisdictions purchase the expensive equipment needed to distinguish "hemp" from "marijuana" (which, of course, are the exact same plant).

So by the time the Legislature convenes, we'll have been through 18 months of radically reduced marijuana enforcement, approaching zero in some jurisdictions, including some of the larger ones. If all the Chicken-Little Drug-Warrior proclamations turn out to be BS and the sky hasn't fallen, the 87th Legislature would be a perfect opportunity to shift pot penalties to either a civil penalty - as the GOP platform suggests - or a Class C misdemeanor, as Gov. Abbott has endorsed.

To be clear: Personally, I'm one of the 61 percent of Texans who would legalize pot tomorrow; this summer I witnessed the Canadian model first-hand and considered it a brilliant success. But Grits doesn't anticipate Texas' statewide leadership in 2021 will be ready to go that far.

Even so, it would be a mistake to go back to the bad old days of 6,000 pot prosecutions per month. Ramping marijuana prosecutions back up would put undue pressure on crime labs, boost counties' indigent defense costs, exacerbate high prosecutor caseloads, and incur unnecessary county jail expenses. Local officials should continue deprioritizing marijuana cases and, when they meet in 2021, the Legislature should simply take arrests off the table for such offenses altogether.

RELATED: From the SA Express News, DPS state troopers have inconsistent policies related to people for pot possession, arresting them in some counties and issuing citations in others.

CORRECTION/CLARIFICATION: This post has been edited to correct a mistake I made interpreting data on crime lab backlogs. The post originally estimated backlogs of 2.5 years for drugs and 3.5 years for DNA. But I had mistaken the number of backlogged cases for wait times in days. That said, the underlying news story from which the crime-lab backlog chart was drawn quoted the Texas House Transportation Committee Chairman Terry Canales declaring that, "Defendants are frequently and unnecessarily spending years in jail waiting for forensic evidence to be processed so that they can have their day in court." So the overarching point about crime lab backlogs remains valid.

Driver killed by Temple PD at traffic stop was unarmed, fingerprint fallibility, and a New Year's #cjreform reading list

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

Driver killed by Temple PD at traffic stop was unarmed
Michael Dean was unarmed when he was shot by Temple PD last month, according to the latest reports. Witnesses say he was beaten up by police before his death.

Fingerprint fallibility
How easy is it to become an "expert" fingerprint examiner? My neighbor Jordan Smith, writing for The Intercept, gave a great account. (Spoiler: Not hard.) The justice system hasn't come close to coming to grips with the implications that traditional forensic methods like fingerprints, bite marks, or hair-and-fiber comparisons have no scientific basis and are wrong far more often than jurors are told. It's like the 2009 National Academies of Sciences report on forensics set off a slow-motion explosion of which most of the public and even most of the legal profession remain unaware.

Defining #cjreform in red-state Kansas
Conservative Republicans in Kansas want to shift budget resources to mental health and drug treatment services  outside the justice system.

For the reading pile
Here are a few academic articles that go on the reading list:

• The Missing Link: Jail and Prison Conditions in Criminal Justice Reform
• The Problem of Problem Solving Courts
• Incapacitating Errors: Sentences and the Science of Change
• Undeliverable: Suspended Driver's Licenses and the Problem of Notice
• Challenging Electronic Systems' and Devices' Ability to Produce Reliable Evidence
• Hiding Homelessness: The Transcarceration of Homelessness
• Build Momentum for Police Reform through Organizational Justice
• Bias, Trust, and Trustworthiness: An experimental study of post-justice system outcomes
• Diversion in the Criminal Justice System: Regression Discontinuity Evidence on Court Referrals (Harris County)
• Encouraging desistance of crime
• An Intellectual History of Mass Incarceration

More on victimization at Texas youth prisons, prosecutor loses immunity over wrongful conviction, broken-windows theory built on a hoax, and other stories

Happy new year, folks, let's clear a few browser tabs with a quick roundup of stories that merit Grits readers' attention:

Looking forward to 2020
Michael Barajas at the Texas Observer outlines five debates he anticipates will dominate criminal-justice politics in Texas in 2020. Give it a read.

More on victimization at Texas youth prisons
After Grits earlier reacted to a new federal report on sexual victimization in Texas youth prisons, other reporters are following up. Here's a piece from Tommy Witherspoon at the Waco Tribune Herald, and another from Keri Blakinger, who just left the Houston Chronicle to join the Marshall Project. For related reading, see the new annual report from the Texas Juvenile Justice Department, and 2018 statistical data on juvenile probation in Texas.

Sunset time
Recently Grits analyzed the Commission on Jail Standards self evaluation for the Sunset Commission. Here's the one for the Texas Commission on Law Enforcement.

Also, Seana Willig, formerly of the State Commission on Judicial Conduct and now chief disciplinary counsel at the State Bar of Texas, analyzed the impact of Sunset review on lawyer discipline. Here's the Commission on Lawyer Discipline's latest annual report. Criminal law was the most common source of grievances among more than 2,000 lodged statewide last year (p. 20). The "most common allegations were neglect, failure to communicate, and complaints about the termination or withdrawal of representation." Also, 115 attorneys were discipline for stealing money from their clients or failing to return an unearned fee (p. 13); 15 of those were criminal defense attorneys

Prosecutor loses immunity over politicized wrongful conviction
Grits must admit I have not followed the back and forth between Judge Suzanne Wooten and former Collin County DA John Roach, but I'm amazed to read that she has overcome prosecutors' immunity claims in federal court. Reported Angela Morris at Texas Lawyer:

Wooten notched a win in federal court Monday after a judge ruled prosecutors involved in her wrongful conviction cannot claim qualified immunity from her wrongful prosecution claims. That ruling came from Judge Amos Mazzant of the Eastern District of Texas.

I'm flagging this to read the opinion later. Sounds like they only were eligible for qualified immunity because the DA bypassed local law enforcement and performed the investigation themselves, then they WAY overreached and voided even "qualified" protections.

Counter-intuitive outcome from justice-system involvement

Contact with the justice system increases delinquency among youth, says a study out of the UK analyzing twins.

The 'Mass Supervision Crisis'

See coverage from The Atlantic on the politics and policy of parole.

Busted! Broken-windows theory built on a hoax

Ever heard of the "broken windows" theory? That if one window is broken, people will see it as a sign of neighborhood disorder and break nearby windows? An entire generation of law-enforcement executives based their street-level strategies on the idea. But it turns out, in the original study on which James Q. Wilson and others based this now-mostly-rejected notion, the researchers themselves broke all the windows! OMFG! Could anyone draw a less valid conclusion from such a result? How much damage has been done, how many hundreds of thousands needlessly arrested, because of this politicized misuse of shoddy scholarship? That makes me incredibly angry.

TX county jails seek to avoid, fail to cooperate with investigations into medical deaths, says Jail Standards Commission's Sunset 'self evaluation'

Grits took time this morning to read through the Texas Commission on Jail Standards' self evaluation created as part of the "Sunset" process, through which the Texas Legislature evaluates agencies' functions every few years. For my own purposes, I took a few notes. Here are the highlights:

For starters, jail capacity in Texas has increased more than five-fold over the last 36 years, during which time the state's population didn't quite double: "From 1983 to date, the number of county jail beds has increased from 19,000 to 96,578." About 2/3 of those beds are full at any point in time.

Evading death investigations through creative, post-hoc dismissals
TCJS identified a recurring pattern where some counties claim someone who died in their custody had been released in order to avoid an outside investigation. The problem arises when:

the county claims they have released from custody because a judge has dismissed the charges. While the inmate technically may no longer be in custody, there is a very real possibility that the events that contributed to their death occurred while they were in custody and preceded their PR Bond or transfer to the hospital. By not reporting the death, the jail avoids the required criminal investigation. This could be viewed as circumventing the intent of the legislature and existing statutes.

The agency has requested an Attorney General's opinion to clarify the issue, but that "does not guarantee a solution."

'Several times per year' jails seek to conceal medical records from TCJS death investigators
Some local jails, particularly those who contract out medical care, have sought to prevent TCJS from accessing inmate medical records as part of death investigations. Because part of their role is determining whether jail staff followed physician's orders, this would keep them from providing meaningful oversight in such cases. From the report:

Several times per year, the agency will encounter opposition when requesting inmate medical records. This most often occurs when dealing with a facility that utilizes a contract medical provider. Other situations in which this has been an issue is when a facility is using a contract provider for mental health services. When this occurs, the provider most often cites HIPAA as the reason for their reluctance or refusal to provide access. In other cases, the provider will claim that the creation of these records are “proprietary” and not subject to disclosure. When either of these situations is encountered, it slows down the process of trying to determine if there were any violations of minimum standards in an extremely important area. Failure to provide adequate healthcare can have dire consequences, up to and including death. Unfortunately, we have determined on several occasions that jails have failed to follow physician’s orders, and being able to identify and correct this issue is extremely important. Current state law and the federal act regarding disclosure of medical records provides an exemption that we have been able to utilize in the past when this issue arises. However, there is still opposition as entities misinterpret (intentionally or due to lack of knowledge) this exemption and slow down the resolution of complaints and investigations. (emphasis added)

Dealing with rulebreakers more quickly
The agency tends to focus on administering technical assistance to jails that violate rules as opposed to using punishments to provide incentives. "Over the past decade, the agency has expanded the amount of technical assistance provided to jails to reduce potential areas of non‐compliance. This approach has been well received by county officials and has allowed staff to focus on larger issues while correcting minor ones at the time of inspection." (See here for examples of inspection reports.) But as a result of recent legislation, counties will be expected to regain compliance more quickly following rules violations:

When first created, the agency’s enabling statute allowed a county up to one year to regain compliance. This provision has recently come under criticism as being too long. One of the bills from the 86th Legislative session now requires facilities that are operated by a private vendor and fail an inspection to appear before our board at the next regularly scheduled meeting. These meetings take place on a quarterly basis, which significantly reduces the amount of time we would expect a facility to remain in non‐compliance.

How other states handle jail oversight
The report includes an excellent, three-page table (pp. 6-8 in the paginated document; pp. 8-10 of the pdf) describing how other states handle oversight of local jails. It's a very nice little compendium of the agencies, enabling statutes, and basic jail oversight functions across states.

Agency as 'referee'
State government regulates jail conditions, but local Sheriffs operate the jails and county commissioners courts provide their funding. This disconnect among responsibilities can inject the jail standards commission into local political fights:

County jails are rarely a priority for local government but represent one of the largest liabilities for them. This can create friction at the local level and prevent effective and constructive communication between the sheriff, who is responsible for the jail’s operation, and the Commissioner’s court, which is responsible for funding it. These are local issues created by local decisions, but they directly impact the effectiveness of the program. With a goal of having all jails operate in compliance, the agency is sometimes placed in the unenviable position of referee in our attempts to meet our goal.

Training new Sheriffs a particular problem
From the agency's perspective, every newly elected Sheriff amounts to a role of the dice. They all run on a "keep us safe" political platform that pretends they're out leading posses chasing bad guys and barely mentions the jail management function which, for most of them, is the most significant and time consuming part of their job. From the report:

Every four years, there is approximately 33% turnover of the sheriffs from the previous cycle who are taking office for the first time. Depending upon their background and previous experience, their understanding of jail operations and the role of the agency varies greatly. Early outreach and education occasionally alleviate some of the issues but not always and not with all the issues.

Shift to electronic reporting despite county opposition
The agency will finally stop receiving paper reports that have to be re-typed into spreadsheets and have counties begin providing statutorily required data electronically.

With the passage of HB3440 (86R) by Caprigilone, over the next two‐year cycle, the agency will be phasing in electronic reporting. This will consist of counties submitting to the agency each month a “locked” excel spreadsheet containing the statutorily mandated data. Prior attempts had been met with resistance from counties, but it is no longer feasible or even responsible to have one FTE assigned to nothing but data entry in 2019. By having the counties submit this data electronically, the FTE previously assigned will now perform quality control checks and simply import the data into the agency database. From there, the data can be used to run multiple reports that we are required to create. It is anticipated that the FTE previously assigned can now assist with other duties and functions of the agency as assigned.

Disconnected county computer networks prevent real-time data analysis
The agency is frustrated that legislators expect them to be more closely tracking data from local jails than they are technically able to at the moment, not just because of statutory reasons but because of technical issues related to linking disparate computer networks:

Efforts to educate members of the legislature about our ability to carry out certain tasks they would like accomplished are sometimes met with “dismissiveness.” Most of this is related to data collection and information submitted by the counties. At this time, there is no central database or portal into which counties can enter and submit information “real time.” The monthly population reports are simply a snap‐shot of the inmate population on the first of the month. The other reports required by statute are daily counts but deal with specific segments of the inmate population not the entire population. Part of the issue with this inability to tie the 240 county jails into a network is that each county has purchased or developed their own software with varying levels of compatibility and capability.

Low jailer pay degrades professionalism
The report directly linked a lack of professionalism among county jail guards to low pay.

With each county jail owned, funded, and operated by local government, they are the ones that decide how much to allocate for jail staff salaries. In an overwhelming majority of counties, the starting pay is a major drawback and jails have a difficult time recruiting and retaining qualified staff. This is an underlying factor in almost every instance of non‐compliance and makes it difficult for Jail Administrators to manage and operate a jail. This results in a wide range of professionalism amongst the jails that we regulate. This in turn requires agency staff to provide additional technical assistance to county jails to assist them in operating safe and secure facilities.

How 'jails have become mental hospitals, and jailers have become social workers'
The agency suggests additional training for local jailers on mental health, especially in rural counties, but they recognize the mental-health problem is bigger, more structural, and fundamentally budget-based than a training-only response can solve:

One area that we are exploring for possible expansion is mental health training. Interaction with an individual with mental illness is challenging even in the best of circumstances. Once a person with a mental illness enters the criminal justice system, that challenge is exacerbated by a factor that is simply hard to quantify. With insufficient mental health providers to service the general public, the need in jails is even greater. With an estimated 30% of the inmate population either diagnosed or exhibiting signs of mental illness, the demand far exceeds supply. By default, the result is that our county jails have become mental hospitals, and jailers have become social workers. Neither the facilities nor the staff that operate them are properly equipped to handle this continuing issue, and no long‐term solution is in sight.

"Difficult and unpopular would be the two most accurate words to describe any possible solution" to overuse of jails for mental health purposes, the report opined.

Administering "Prisoner Safety Fund" now a key agency function
In addition to its traditional functions, the agency now lists as one of its six key functions the administration of the "Prisoner Safety Fund," which state Rep. Garnet Coleman created under the Sandra Bland Act in 2017. That fund had its authority expanded earlier this year. Here's what it does:

Prisoner Safety Fund. The 85th Legislature created the Prisoner Safety Fund as part of SB1849(85R). The original purpose of the fund was to assist counties that operate a jail with a capacity of 96 beds or less with meeting the technology requirements set forth in the bill. There were two areas specifically targeted. The first was the ability to verify observation checks of the inmates by staff in high‐risk areas by an electronic means. This can be accomplished via camera or electronic sensor. The second was the provision to allow access to mental health services 24 hours a day via tele‐mental health services. The 86th Legislature amended the criteria in HB4468(86R) and increased the number of counties eligible to those that operate a facility with a capacity of 288 beds or less.

So the Legislature has created a fund specifically to prevent jail suicides and facilitate provision of mental health services. That could afford some interesting opportunities going forward, although each new funding battle will be a struggle. Certainly the problem hasn't been solved yet, as an AP report emphasized recently. See a detailed discussion of the (relatively modest) grant program beginning on page 71 of the pdf.) Most of the money in the fund has not been spent yet.

Records maintained by the Jail Commission
For those seeking records from the agency, here's a good description of what they have:

The Assistant Director authenticates the reports and data submitted. The following is authenticated to ensure accurate reporting of measures:

(1) Agency Calendar. Each entry is  required to have an associated memorandum prepared by the staff member involved in the activity. The staff member submits these memorandums to the Assistant Director, who reviews each entry on the calendar to ensure that a memorandum is available.  

(2) Inspector Activity Log. Each inspector is required to submit a monthly activity report. The Assistant Director compiles these reports into the Inspector Activity Log and verifies them for accuracy by reviewing a master log maintained by the Assistant Director. Any discrepancies are checked against the county’s inspection files, which are maintained in the agency file room. 

(3) Planning and Construction Log. The planner submits a log. Any activity that is designated as a key measure is reviewed by the Assistant Director to verify that the activity is denoted on the calendar or monthly activity report and that a memorandum is available. 

The Planning and Construction Log is maintained by the Planning and Construction Division and provided to the Assistant Director no later than the fifth day of the following month. The Planning and Construction Division notes the following:

1. Technical Assistance provided to counties on site. 
2. Occupancy Inspections conducted (pass or fail should be noted).
3. Special Inspections conducted. 
4. Training Attended/Conducted. 

Memorandums are submitted in order to document activities designated as key measures.

On pages 16-17 of the pdf is a list of all the datasets maintained by the agency. (Many of these are available on their website.)

Also, some researchers may find it useful to see the information commissioners are given at their meetings:

For each Commission meeting, a reference book is created that includes information on any issue that comes before them. In addition, this book contains current financial statements, copies of any audits or reviews that are periodically conducted by outside entities, and a listing of staff activities during the previous three months. There is also a section that contains the compliance status of all jails under our purview, number of complaints received against jails under our purview, population trends, and construction projects.

Forgotten history
Texas law has mandated safe and suitable jails since the 1920s, but the state didn't begin inspecting jails until 1969. That year, the federal court intervened in "almost 20" local Texas jails because of poor conditions. The Legislature changed the law to allow inspections. (Really, they removed a prohibition on inspections.) After that, "inspections were conducted of all 254 county jails, [and] all but six were found to be in violation of state law."

In 1974,  a survey revealed that 68 percent of jails did not provide 24-hour supervision; 121 left prisoners alone at night; 40 percent "slept prisoners on the floor."

The Legislature formally established the commission in 1975. By 1978, "The Commission became mired in controversy regarding funding, conflict of interest, and agency abolishment." However, 1979 witnessed, "Acceptance of Texas Minimum Jail Standards by Federal Courts and drastic reduction in federal court intervention. The Commission issued the first notices of non‐compliance [later that year], marking the beginning of enforcement efforts."

Inmates from outside Texas
A few county jails house contract prisoners from other states, in particular, "New Mexico, Arkansas and Idaho." New Mexico and Arkansas Grits can perhaps understand as a function of convenience,  proximity, and the logic of rural resources. The Idaho inmates, though, constitute their own mostly forgotten story; they're housed in a privately run facility down in Eagle Pass and the contract has caused lots of problems.

In addition, a few counties contract with private-prison companies to manage immigration-and-other-federal cases:

several federal agencies such as the Bureau of Prisons, Bureau of Immigration and Customs Enforcement, and the United States Marshal’s Service, all contract for bed space that falls under the Commission’s regulatory authority and is subject to inspection. Included in this number are seven (7) privately operated facilities and the companies that operate them through inter‐governmental agreements between county and municipal governments.

Inmate and family complaint procedures
Starting at the bottom of page 47 of the pdf is a detailed discussions of procedures related to inmate an family complaints which may be useful to those who, you know, want to complain. However, one can't file a complaint with TCJS before first going through the local jail's grievance process. They're an oversight agency, not the first point of contact. (If you're going through this process, Grits would recommend contacting Diana Claitor at the Texas Jail Project, who has forgotten more about the subject of jail-grievance processes than Grits has ever known.)

AG punted authority to approve contract-inmate schemes to TCJS
Here's a weird tidbit about jail construction/finance I didn't know. Grits has covered numerous Texas county jails seeking to expand to house immigration detainees and other contract prisoners. But I was unaware that, in the early '90s, the Attorney General's Public Finance Division struggled with this question of

whether the financing of jails or detention facilities of substantial capacity intended to house inmates of governmental entities other than or in addition to those of the sponsoring entity meets the public purpose requirement for the issuance of bonds and other securities.

They decided to punt the issue to TCJS, requiring that the executive director provide a formal letter recommending construction. The commission grants these "if appropriate," but the report doesn't say how appropriateness is judged. It'd be an interesting project to gather all of these through open records to figure out how often speculative contract jails have been recommended and on what basis.