Do brain-science advancements, death-penalty debates point to need for third path on young adults and crime?

Our latest "Reasonably Suspicious" podcast segment, Death and Texas, has sparked a number of lively, behind-the-scenes discussions, so I thought I'd pull it out as a stand-alone and provide links to a number of related, relevant resources. The topic: A ruling out of Kentucky finding that execution of defendants who committed their crimes before they were 21 years old violates the Eighth Amendment to the US Constitution, building on the holding in Roper v. Simmons. A majority of cases so situated come from Texas in recent years. You can listen to the full (5 minute) discussion here.

For context, here's the ruling by the Kentucky judge under discussion and some relevant media coverage.

Among states, Connecticut is considering extending the juvenile justice system all the way to age 21 because of similar considerations about youthful brain development.

In the podcast, I mentioned my pal Vincent Schiraldi's work suggesting the need for an alternative justice system for young adults. Here's what to my knowledge is sort of his "big paper" on the topic with Bruce Western and Kendra Bradner. See also this paper presaging the reform suggestions in Connecticut.

For more background: Here's a survey from last year of 10 state and local initiatives on these themes. And here's a law review article discussing the ideas of "extended adolescence" raised by Schiraldi's work and others.

Find a transcript of this excerpt below the jump:

More on limiting debtors prisons practices

The Texas Municipal Courts Education Center has issued a summary of new debtors-prison reform legislation (HB 351/SB 1923) as well as guidance related to various laws governing expunction of juvenile records. Check them out here.

RELATED: In the latest Reasonably Suspicious podcast (beginning at the 12:08 mark), I interviewed the Texas Fair Defense Project's Emily Gerrick on what local judges can do beyond that new law to limit debtors-prison practices in Texas. I asked Edward Spillane, Presiding Judge of municipal courts in College Station, for his thoughts on her suggestions, and here's how he replied:

Emily made a number of excellent points. I'm excited that the new legislation will encourage a broader use of the waiver and community service processes judges have. I wish the surcharge program had gone away but now judges can end more easily the financial burdens defendants face from fines, fees and drivers license holds. I would include particularly Indigent defendants but also those defendants struggling with other hardships such as mental illness or a loss of a loved one, a family member who is sick or any other strain making it hard for defendants to carry out their sentence. The new legislation also mandates that courts are a safe haven for those under warrant and who come to court. That is a big step along with the various new procedures courts must perform before issuing failure to appear or capias pro fine warrants. Progress may seem slow but these legislative changes will make all our courts more just and fair places for citizens.

In a few days, I'll post the full interview with Ms. Gerrick, which was informative and educational on several levels.

End-of-summer reading list additions

Grits saw several academic offerings recently to which I hope to return soon as I close out my summer reading, so let's record those links here; maybe others will be interested in them as well:

• Amicus brief from scholars, Carpenter v. US (pending SCOTUS case re: warrant requirement for cell-phone location data)
• Misdemeanors, Alexandra Natapoff
• Legal Remedies for Police Misconduct, Rachel Harmon
• The Reid Interrogation Technique and False Confessions: A Time for Change, Wyatt Kozinski

Let me know in the comments what you're reading on #cjreform topics.

Reasonably Suspicious: Bethke leaves TIDC, cap-and-trade to limit incarceration?, DNA-mixture SNAFUs, and more

Just Liberty's latest "Reasonably Suspicious" podcast for August features discussions of important issues and fresh ideas confronting Texas' criminal justice system. (This is the last episode in our summertime "soft launch" before promoting the show more widely beginning in September.) Listen to the podcast here, or read a transcript below the jump:

Topics covered include:

• Jim Bethke leaving TX Indigent Defense Commission
• "Cap and Trade" proposal to minimize incarceration
• DPS crime lab fees on hold, but crisis lingers
• DNA mixture evidence and Texas courts
• What can judges do to minimize debtors prison practices?
• Brain science and capital crimes by young adults
• And more!

Overtime for police court appearances a growing cost driver at Austin PD

Last month, a Grits post highlighted provisions in the Austin and Houston meet and confer contracts which gave police officers extra pay for time they spend testifying in court. In Houston, courts found this gave officers an incentive to make arrests on bogus DWI cases so they could make extra money - often quite a bit more than their base pay - in overtime for court appearances. And Austin's overtime pay for court appearances is even more generous.

Now, a budget response to questions by Austin Mayor Steve Adler about the drivers of overtime expenditures and police budget costs supplies light on the subject from a different angle. According to the city manager's response,

In 2016, overtime per sworn officer at APD was $11,647, up from $8,108 per officer in 2014.

Adler asked what was driving costs and overtime use at Austin PD. Looking beyond base officer pay, which in Austin steps up quickly with seniority to make them among the highest-paid officers in the state, the biggest over-time related item listed among the cost drivers was "Contract mandated Court overtime for police officers." That was the third largest item in an "other" category of cost drivers which included "Retirement" and "Health Insurance."

So, although we can't say from these data what proportion of overtime expenditures is due to court appearances (as opposed to callbacks or other, more mundane sources of overtime), overtime costs for court appearances have clearly mounted and now represent a significant sum.

White House backing for methadone in jails?

I don't understand the Trump Administration's position on the Drug War at all. Grits was under the impression that "beleaguered" Attorney General Jeff Sessions was ramping it back up, but then we see that the Administration apparently supports methadone treatment for addicts in county jails. From the New York Times:

maintenance treatments like methadone, if uninterrupted, are proven to reduce arrests and increase employment, and for many with addiction are the only thing that works. In July, a White House commission on opioid addiction called for increasing inmates’ access to addiction medication.

Somebody help me out here, I can't keep track any more: is that a liberal or a conservative position?

Grits also wanted to flag a medication being used on addicts in jails (or more often, as they are discharged), of which I hadn't previously heard:

A growing number of jails, especially in rural areas, have opted to treat inmates not while they are in jail, but on the way out, giving them a one-time shot of a newer medication, Vivitrol, as they are released. Vivitrol, which unlike methadone and Suboxone is not a narcotic and has no street value, blocks opioid receptors in the brain, making getting high nearly impossible. It is far more expensive, and far less proven, than methadone and Suboxone, but its manufacturer often gives it to jails free. Its effect lasts about a month.

The full Times story - "Opiod Users Are Filling Jails. Why Don't Jails Treat Them?" - is well worth a read. MORE: NPR covered Vivitrol this week as well, an alert reader informed me.

Exploring (long-term) ups and (short-term) downs of police shootings in Texas

Last month's Reasonably Suspicious podcast from Just Liberty featured a new segment titled "Suspicious Mysteries" which focuses on questions to which there are no definitive answers. The topic this time: possible reasons why deaths in police custody in Texas doubled from 2005 to 2015, then steeply declined in 2016. A friend in another city asked if I could pull the 4-minute segment out as a stand-alone for use by advocates, so here you go:

For more:

• Why the increase in number of Texans shot by police?
• Texas police almost never punished when they break rules and kill people
• Best Practices: Police training should prioritize deescalation, get rid of the 21-foot rule
• On training as a remedy for excessive use of force
• Blain: 'What does actual police reform look like?'

And from Grits' contributing writers:

• Eva Moravec's Point of Impact series producing narrative journalism on Texas police shootings of unarmed people.
• Amanda Woog's Texas Justice Initiative project documenting deaths at prisons, jails, and in police custody.
• Podcast conversation between Eva and Amanda, Oct. 10, 2016.

For more reform ideas, check out Campaign Zero.

Find a transcript of this segment below the jump.

Competing narratives, reentry, girl scouts, when prosecutors bully the defense bar, and other stories

Here are a few odds and ends  for readers' perusal while your correspondent is focused elsewhere:

• Texas is moving 1,000 prisoners out of the Pack Unit into air conditioned facilities. In addition, regular readers will recall, the water there is tainted with arsenic. Shouldn't the state simply close the unit now?
• An Austin Girl Scout troupe is centered on taking girls to visit their mothers in prison.
• Dallas Judge Rick Magnis is retiring, but the case of Ben Spencer, a man he believes was falsely convicted in his court, remains unresolved.
• When prosecutors bully defense lawyers: San Antonio edition.
• Sanctuary cities legislation causing confusion for police departments.
• Good trial lawyering has always been about storytelling, so Grits is less shocked by defense lawyers adopting nonfiction narrative approaches than our friends at the prosecutors' association, who tweeted that link in horror at being asked to justify the economic costs of prosecutorial choices.
• Speaking of critically important narratives which can determine the outcomes of cases, jury instructions that tell jurors to search for "truth" instead of "reasonable doubt" result in higher conviction rates, a new study found.
• In the federal system, "criminal defendants who are released pending trial earn a roughly 72 percent decrease in sentence length and a 36 percentage-point increase in the probability of receiving a sentence below the recommended federal sentencing Guidelines range," a recent paper found.
• Texas has been credited in recent years as an early adopter of criminal-justice reforms, but that hasn't necessarily extended to the reentry front. Pew's Stateline has a good roundup of reentry-related reforms being adopted in other states that should be considered here.

Unpunished police misconduct drives down crime reporting rates

In the past couple of years, we've heard a lot about the so-called "Ferguson effect," where cops supposedly react to public criticism by failing to do their jobs and intentionally allowing crime to flourish. Grits has expressed skepticism that that's really the attitude of the cop on the beat, but regardless, it's a common meme.

What's less commonly discussed is the reverse problem: when police misconduct goes unpunished, resulting in a loss of trust by the community and a failure to report crimes for fear of interaction with the cops. A Columbia Law Review article by Tracey Meares includes this summary of some recent research on exactly how that occurs:

In a recent study, Professors Matthew Desmond, David Kirk, and Andrew Papachristos present an example of how researchers can use such data. The researchers studied how police brutality against unarmed Black men affects cities and the Black community in particular by examining whether there was a change in the number of 911 calls in Milwaukee before and after a highly publicized incident of police violence against an unarmed Black man, Frank Jude. Jude was attacked by several White police officers in October 2004 after they accused him of stealing a police officer’s badge at a party. The officers stomped on his face with heavy boots and punctured his eardrums with pens. After the incident, Jude’s photo was shown in the newspaper demonstrating his extensive injuries. The results of the researchers’ analysis of 911 calls surrounding this incident are startling. After Jude’s beating was reported in the local press, Milwaukee residents—and especially residents of Milwaukee’s Black neighborhoods—were less likely to report crimes by calling 911. The magnitude of the crime-call decline in Milwaukee was large and long lasting. It persisted for over a year, “result[ing] in a loss of approximately 22,200 911 calls, a 17 percent reduction in citizen crime reporting, compared with the expected number of calls.” Moreover, the “missing” calls were primarily confined to the areas of Milwaukee in which mostly African Americans lived. After a year, the number of calls went up again.

Houston police shootings: 'Discriminatory,' but not 'Biased'?

Police shootings in Houston may not directly result from racial bias, according to academic analyses of data from Houston PD, but they do occur in a statistically discriminatory fashion. That's because officers' intent cannot be proven but the results are wildly disparate. This excerpt from a new academic article from Jeffrey Fagan and Daniel Richman described the two analyses and how they differ:

Research by Professor Roland Fryer examining police use of force in Houston, one of the nation’s largest cities, shows a nearly 50% greater incidence of use of force by police in encounters with Black or Latino persons but no disparity by race in shootings by police. Justin Feldman’s subsequent analyses of Professor Fryer’s Houston results showed that, in fact, Blacks were nearly five times more likely to be shot relative to Whites and Latinos were nearly twice as likely to be shot relative to Whites. Professor Fryer searched for evidence of racial bias in police shootings in Houston, using statistical models to identify intentional bias. He found none. Feldman’s analyses of the same data examined statistical discrimination — or disparate treatment of Black and Latino suspects by police in their use of force — and showed large racial disparities. Overall, the evidence of racially disparate police enforcement across cities reinforces longstanding beliefs among Black citizens about disparate treatment at the hands of the police and helps spread a narrative of an uneven burden that Black citizens bear in police–citizen encounters.

The authors explain the two studies' different conclusions by pointing out that they were analyzing two different things - "statistical discrimination" vs. "racial bias" - offering this explanation in a footnote: "Statistical discrimination reflects differences in the rates of an event by race, after controlling for race-specific and plausible nonrace factors that might explain such differences. Racial bias looks for evidence of intent to discriminate, independent of evidence of racial disparities."

If the outcome is that discriminatory ("Blacks were nearly five times more likely to be shot relative to Whites"), it's hard to know whether the public should be comforted by the concurrent finding that the discriminatory outcomes weren't generated by "bias." In essence, Prof. Fryer was positing HPD officers' good intentions, while Prof. Feldman lamented that they were the type with which the road to Hell is paved.

Conviction Integrity Units a Texas innovation gone national

Without a doubt, creation of the nation's first Conviction Integrity Unit (CIU) at a District Attorney's office was the most important legacy of former Dallas DA Craig Watkins' brief but eventful career as a Texas prosecutor. Check out a feature in The Atlantic praising the CIU in Philadelphia. This was a Texas innovation which has been mimicked far beyond our borders:

Today there are about 30 units, largely clustered in the Northeast, California, and Texas, according to Hollway. Roughly half were created after 2013, and their track records vary: Since the Philadelphia unit was created in 2014, Thomas’s case is the first and only one it’s thrown out. By contrast some of the most robust—such as those in Dallas, Houston, and Brooklyn—have thrown out dozens.

Conviction Integrity Units in Texas have mostly usurped the old model of innocence clinics at law schools, which are these days responsible for a tiny fraction of the total discovered innocence cases compared to what comes out of the CIUs.

1,200+ back petition to limit DPS Class C arrests, and other stories

Here are a few odds and ends that caught Grits' eye while I'm focused elsewhere:

• More than 1,200 Texans have emailed DPS Director Steve McCraw in the last week urging the agency to adopt rules proposed by Just Liberty and its allies to rein in arrests by state troopers for Class C non-jailable offenses. Go here to send your own email.
• A former TDCJ guard was sentenced to 180 days in jail for allowing two inmates to attack a third then attempting to cover it up.
• Charges were dismissed against two Harris County jailers who left a Class B pot defendant in a cell filled with feces and garbage then tampered with records to cover it up. Prosecutors waited too long and the statute of limitations has passed.
• Coverage from yesterday's House Corrections Committee hearing on parole reminded me of this recent Grits post. Sounds like it was a one-sided discussion.
• Two academic papers raise interesting questions: Did Justice Samuel Alito suggest a viable legal strategy for holding police officers accountable when they wrongfully kill people? And what duty do prosecutors have to investigate and charge officers who engage in misconduct?
• From the Vera Institute, "Why more incarceration won't reduce crime?"
• Via the Wrongful Convictions blog, see Samuel Gross, "How concealing key evidence convicts the innocent." Related: From the New York Times Magazine, "She Was Convicted of Killing Her Mother. Prosecutors Withheld the Evidence That Could Have Freed Her."
• Fair Punishment Project, "Dozens of wrongful convictions tossed out of Southern California Courts because of prosecutor bad behavior."
• Aggressive law enforcement in poor neighborhoods amounts to a "crime tax," posit criminologists.

Reduce public-safety costs by diverting non-emergency 911 calls

CityLab has a story about a topic that's been on my mind lately, though I hadn't written anything yet: How to reduce 911 volume by weeding out non-emergency calls. Mostly on Grits we've discussed this in terms of time wasted on false alarms from private burglar alarm companies, which make up 10-12% of 911 calls and almost never result in arrests, even in the less than 1% of cases in which a burglary actually occurred. But there are other means, like diverting non-emergency medical situations from the emergency room, as discussed in the CityLab article. One might also suggest diversion programs for calls related to the mentally ill - right now we use the same tactics and personnel to respond whether the emergency involves a criminal or a patient.

911 is treated by the public as a one-size-fits-all solution to a multi-variate array of life problems. Whittling back its use would decrease demand for patrol services without harming public safety and relieve pressure on local budgets to constantly increase police staffing. Instead, departments could more thoughtfully deploy their officers and be less reactive, spending more money on detectives, crime labs, crime-scene techs, and other necessary functions that make it more likely crimes will be solved.

Governor: DPS crime lab fees 'premature,' but that doesn't mean 'unnecessary'

Texas politicians love to talk about cutting budgets and reducing taxes, but they never want any of the services that money pays for to shrink. Or at least, that's Grits' takeaway from the governor's volteface on Friday, when Greg Abbott rescinded the Texas Department of Public Safety's move to charge law enforcement agencies discounted fees for crime-lab services. For decades, DPS provided such services for free to  jurisdictions without their own crime labs. (Lubbock PD is the biggest DPS crime-lab customer, if "customer" is the right word for somebody receiving a freebie.)

This blog has argued for some time that the demand for free-as-in-beer crime-lab services would continue to outpace capacity and that charging for services is the only way to reverse the dynamic. So Grits was unfazed by this news (although everyone was surprised by it). It would have caused a temporary disruption because the locals weren't given time to plan, but in the long run it's a necessary adjustment that would make the system more stable. After all, the rates locals were being asked to pay were still discounted - subsidized fractions of the full cost of those services which are borne en toto in jurisdictions that operate their own crime labs.

But law enforcement and prosecutors howled like scalded cats. While the prosecutors' association admitted that "DPS has long had the statutory authority to assess these fees," critics focused more on the lack of foreknowledge. According to TDCAA, this was a "last-minute change made behind closed doors as part of the final conference committee budget, which is why no one knew about it until after it was done," which is a fair criticism.

That said, let's be clear: Gov. Abbot has resolved nothing; he has only kicked the can down the road. From the SA Express-News:

Abbott said that despite a tight fiscal situation in Texas, it would be premature to contemplate charging law enforcement agencies a fee for using the DPS labs, according to a letter he sent to DPS Director Steven McCraw. 

“Under no circumstances will I allow the 13 crime labs that DPS operates across the state to be underfunded. However, I firmly believe it is premature to charge a fee at this time,” Abbott wrote the DPS.

So he's saying 1) the crime labs won't be underfunded, and 2) DPS cannot right now begin charging a fee, but it possibly could in the future ("premature" is very different from saying it's a bad idea). That doesn't mean they can't do so in the future when state money runs out sometime in FY 2019. The problem is, if DPS implements fees right now, they can charge discounted rates over the course of the biennium. If they must wait until the money runs out to begin charging fees, they'd have to charge the full cost in order to provide the services.

In the perhaps-more-likely alternative, the Legislative Budget Board could authorize the money and the Lege could re-up it in a supplemental budget in 2019, but they do have to cut the budget somewhere if they don't want to raise more money. They can't all be phantom, I-didn't-mean-it budget cuts.

The notion that the governor will not allow the crime labs to be underfunded is a fascinating statement because he already has! Not only did he sign the budget which included the fees, DPS crime labs needed a substantial increase to keep up with skyrocketing demand for forensic services. However, the fees they were authorized to collect only got them to the budget total they spent in the last biennium. That's insufficient given that DPS crime labs cannot control demand for their services - locals decide the agency's workload, with the cost all coming out of the state budget (if the fees are not implemented).

So if it's "premature" right now, when might we expect DPS to begin charging fees for crime-lab services? From the same Express-News story:

Earlier this year, the Legislature set aside nearly $63 million for operation of crime labs for the next two years, an amount Abbott said is enough to ensure that the facilities can operate at full capacity “well into the next biennium” without a fee. 

DPS said lawmakers gave the department authority to charge enough in fees to collect up to $11.5 million for forensic analysis to bring the department to its full authorized funding level of $74.5 million. Its budget for the previous biennium was $74.7 million, according to the department.

If one assumes DPS crime labs will spend at quicker rates than last biennium thanks to heightened demand, we can expect them to run out of money more or less right as the Legislature convenes in 2019. That makes Grits think the supplemental appropriation is more likely than implementing fees during this biennium.

But at some point state leaders are going to have to address the conundrum caused by this disconnect between demand for crime lab services and payment for them. Now that the fees are delayed, the better public policy would be to implement them as soon as practicable - Grits would suggest Sept. 1, 2018, so that agencies would have time to include the change in their budgets - but not to wait for another legislative cycle. Even charging discounted rates would reduce waste and unnecessary or redundant use of crime lab services.

Finally, it should be said that DPS finds itself between a rock and a hard place. The Lege cut their budget 4% but won't let them reduce any of the services they provide. In addition to this flip-flop, the agency was also forced to rescind a reduction in hours at drivers license centers as a result of the new budget. That's fine - nobody like longer lines at the DMV. But if DPS has less money, what is it currently doing that it's now allowed to cease? Not border security. Not crime lab freebies. Not drivers license operations. Should the cuts come from (non-border area) patrol? Narcotics enforcement? Where, exactly?

The new crime-lab fees were actually a smart-on-crime budget cut, adjusting the financial burden for forensic services so that they're partly borne by the agencies directly benefiting from them. It may have been ham-handedly implemented, and because of that a short-term delay may even be warranted. But state leaders should let DPS pull the trigger on new crime-lab fees sooner than later. The problems caused by unlimited demand outstripping finite capacity at DPS crime labs aren't going away.

MORE: The Fort Worth Star-Telegram offered up a similar position in an editorial which linked to this blog post.

How journalists should (and shouldn't) cover parole, community supervision

Journalism surrounding parole is mostly myopic, regressive, and unenlightening. Tuff-on-crime demagogues have mastered the art of crowing over the details of an isolated case to claim that parole should never be granted to anyone, ever, while ignoring broader public safety trends. And too often, our journalist friends gobble it up and regurgitate such messages uncritically.

An example arises out of Houston where a parolee committed a murder after being released halfway through a 45 year sentence. A prosecutor told the press the parole board has "blood on their hands." And yet, in Texas and nationally, crime rates remain near historic lows* despite parole rates in Texas increasing over recent years.

The folks who point to a single, terrible crime committed by a parolee to criticize the process are hoping the public will miss the forest for the trees. The parole board makes its rulings on a massive scale, deciding tens of thousands of inmates' fates every year - dozens every workday. Parole board members are not soothsayers. It is impossible to guarantee that none of those released will commit new crimes. But in aggregate, crime has declined in Texas over most of the 21st century. So whatever policies they're using are working reasonably well from a public-safety standpoint. Parole rates in Texas are significantly higher than California, for example, but our recidivism rates are remarkably low compared to them and most other states, in large part because we incarcerate many low-risk offenders who would not be in prison elsewhere and who are unlikely to commit new crimes regardless. More restrictive parole policies that result in more of those folks being denied release do not promote public safety.

Instead of focusing only on the most salacious, high-profile cases, the better way to think about parole is as a system and to seek the best possible systemic outcomes. The details of one horrific murder may dominate the headlines for weeks, but an aggregate reduction in murders over time will get at most an in-passing mention, not sustained, focused coverage, even if many more people are affected by the story. Regardless, that sustained, aggregate reduction should drive public-policy goals.

So, with that introduction, I wanted to record links to a few recent expert assessments of needed reforms to probation and parole that take a systems approach instead of reinventing supervision around the failures in a single case. Legislators interested in maximizing public-safety benefits from community supervision would do well to heed their concerns, which extend beyond any individual case to focus on bettering the community weal overall.

• Harvard working group, "Toward an approach to community corrections for the 21st century."
• Vinnie Schiraldi and Bruce Western, "Want to shrink our prisons? Fix probation and parole."
• Michelle Phelps, "To fix the justice system, shrink and reform community supervision."
• Robina Institute: Profiles of parole revocations and a survey of releasing authorities.

The press and legislators have become accustomed to the cycle of outrage surrounding egregious violent crimes and figured out how to use it for their own advantage - to maximize clicks and scare voters, respectively. But if we really want to be "smart on crime," we'll need to move beyond those frames.

* The Atlantic last year ran a story questioning, "What caused the great crime decline in the US?" For those seeking answers to this surprisingly difficult question, see:

• Vox: 16 theories for why crime plummeted in the US
• Marshall Project: 10 (not entirely crazy) theories explaining the Great Crime Decline
• National Research Council: The Growth of Incarceration in the United States

James White on 'small tyrannies' and Texas' 'criminal-justice dividend'

In the latest "Reasonably Suspicious" podcast from Just Liberty, we broadcast a brief excerpt from a conversation between me and Texas House Corrections Committee Chairman James White. Here's our full conversation, for anyone interested:

Find a transcript below the jump:

Shorter sentences when locals on the hook for incarceration costs

In California, when counties were made to pay for juvenile incarceration instead of pawning off costs on the state, local decision makers chose to incarcerate youthful offenders for shorter periods, according to this academic paper describing the "natural experiment" that resulted from the change in policy. (Thanks to a reader for pointing it out.)

Lately, Grits has been making the case that many of the most important "unfunded mandates" affecting government budgets come from local decisions for which state government must pay. This paper shows that the tuff on crime crowd gets less punitive when the costs for their rhetoric come out of their own budgets. 

That counties don't want to pay for incarceration should surprise no one. Heck, Texas judges don't even sentence misdemeanor defendants to jail time upon conviction, typically. As of July 1, only 3.7 percent of county jail inmates were convicted misdemeanants, while 9.1 percent were misdemeanants awaiting trial. That pattern holds even for counties sending inmates to TDCJ at exceptionally high rates.

To me, this dynamic argues for exploring more seriously a cap-and-trade program where counties are assigned a share of aggregate bed-years every year. Those wishing to over-incarcerate could buy extra bed-years from less punitive counties via a market mechanism similar to cap-and-trade for pollution controls. Such a system would still have the state pay for most incarceration, but let counties which wanted to incarcerate at much higher rates than their more liberty-minded counterparts do so if they're willing to pay for it.

MORE: John Pfaff addressed this post/paper on his Twitter feed.

Petition seeks change to DPS rules on Class C arrests

Yesterday, Just Liberty filed a formal petition to initiate rule making at the Texas Department of Public Safety to substantially limit arrests by state troopers for non-jailable Class C misdemeanors. See the document here.

The proposal enjoys broad, bipartisan support and in fact implements (for DPS) a plank from the Republican Party platform: "Restricting Arrest Powers - Republican Party of Texas calls on the Texas Legislature to authorized the arrest and jailing of individuals only for offenses for which jail is a punishment or to prevent family violence."

Under Texas law, if 25 people sign a petition requesting a change in DPS Administrative Code rules, the agency has 60 days to either reject the petition or launch the rule making process. Long-time readers may recall that this blog used the same process to initiate rule making at DPS to create an indigence waiver and amnesty program for the Driver Responsibility surcharge. (Check out a couple of segments from the latest Reasonably Suspicious podcast on that effort beginning at the 3:45 mark.)

Petition signers include representatives from 16 different groups, several state legislators, and Sandra Bland's mother. Go here to send an email to DPS Director Steve McCraw to encourage the agency to initiate rule making and adopt the proposed rules.

Texas AG: Carrying a gun doesn't justify 'Terry' frisks

Texas Attorney General Ken Paxton has signed onto an amicus brief aimed at the US Supreme Court to argue that carrying a firearm in a state where that's legal does not justify a "Terry frisk" based on officer safety. Here's the full text of his press release:

Attorney General Ken Paxton yesterday joined West Virginia’s amicus brief in Robinson v. United States along with Indiana, Michigan and Utah in the United States Supreme Court to protect against unjustified frisk searches occurring on the suspicion that a citizen is armed. The basis for this search places a burden on the Second Amendment right to carry a firearm. 

In 1968, Terry v. Ohio determined that a law enforcement officer may both stop and frisk an individual when “specific and articulable facts” lead an officer to reasonably believe criminal activity is occurring. This search is justifiable when the officer believes the detained individual “is armed and presently dangerous to the officer or others.” However, an en banc Fourth Circuit recently interpreted Terry to require only a reasonable suspicion that the individual is armed. This interpretation allows officers to justify a frisk search solely on the suspicion of possessing a weapon during a lawful stop, regardless whether there is a reasonable belief that the individual is dangerous. 

“The Fourth Circuit interpretation places an unlawful burden on Second Amendment rights. The Constitution plainly guarantees law-abiding citizens the right to bear arms, whether through open or concealed carry,” said Attorney General Paxton. “We must ensure the Court continues to protect the constitutional rights of law-abiding citizens.”

The issue to be decided in this case:

Whether, in a State that permits residents to legally carry firearms while in public, a law
enforcement officer’s belief that an individual stopped during a lawful Terry stop has a firearm on his or her person provides a sufficient basis — standing alone — for the officer to conclude that the armed individual is “presently dangerous” and thus allow the officer to lawfully engage in a warrantless “frisk” of that individual.

The implications are significant: Possibly carrying a gun is the main justification for Terry frisks, so if that's no longer sufficient, it could virtually end the practice.

Ken Paxton may be the most unlikely Fourth Amendment advocate imaginable, which may explain why he only reached these questions when a Second Amendment right was at stake.