Arrests for minor offenses continued at Texas traffic stops in 2020: New #SandraBland Act data still shaky on racial breakouts, but shows scope of arrests, police use of force at Texas traffic stops

Texas' 2020 racial profiling data from millions of Texas traffic stops was finalized this week at the Texas Commission on Law Enforcement. This was the first year racial breakouts were included in new data collected under Rep. Garnet Coleman's 2017 Sandra Bland Act. I'd posted preliminary data on Twitter before reporting was complete, but now we have the full dataset for 2020.* What does this tell us about Texas law enforcement's work in the field?

It is starting to tell us quite a lot about what police readily admit are "pretext" stops. Police stop people for minor traffic infractions if they think something else might be going on. If you are so stopped, and you don't agree to a search, you can be arrested for that minor traffic infraction so they can do their search without your approval. More than 41,000 people experienced such an arrest last year. 

That said, we still don't have great data on race: Various racial categories separately total more than the total number of stops recorded. Likely much of this is because of crossover between white and Hispanic categories, but there are many reasons racial identifications are problematic.

It was also a weird first year to gather racial data. With COVID driving down traffic everywhere, traffic stops were down 35% statewide, from 9.7 million in 2019 to 6.3 million in 2020.

Still, that's a lot of stops When police search, are they finding much? Usually nothing. And when they do, it's usually insignificant contraband that doesn't result in an arrest, according to the data.

Texas cops conducted searches 362,113 times in 2020, or at 5.8% of stops. That's about one out of every 17 time they pulled someone over. Of those, 27% were based on the drivers' consent.

In less than half of searches, contraband was discovered - 158,815 times in 2020 or 43.6% of searches. Most of what was found was drugs or paraphernalia (69%). Remarkably, three out of five times contraband was found, no arrest was made (93,998 cases). One supposes in these cases police found small amounts of marijuana, rolling papers, or items that weren't in and of themselves incriminating like cash or legal weapons. 

Arrests occurred at traffic stops 171,976 times in 2020, or at 2.7% of stops. Of those, 24% of arrests were for Class C misdemeanors (traffic infractions are generally Class Cs); another 24% were for outstanding warrants; the rest for penal code violations.

Class C arrests, which would mostly be banned under bills at the Texas Legislature like HB 830 and the Texas George Floyd Act, happened 41,731 times in 2020, down from 64,100 times in 2019. 

Physical force resulting in serious bodily injury was used against people 5,141 times at Texas traffic stops in 2020, or about once every thousand stops.

Black folks represented 24.6% of force victims compared to 16.7% of drivers stopped.

For the third year running, Houston PD came in on the high end of use-of-force rates at large departments. HPD officers used force 82.6 times out of every 10,000 stops; the statewide average was 10.7. At San Antonio PD, by comparison, force was used at 3.4 out of every 10,000 traffic stops; at Austin PD it was 5.4.

Out of 2,500+ agencies statewide, there were 19 agencies with higher use-of-force rates than Houston PD. But all were small agencies making fewer than 4,500 traffic stops; together, those 19 departments reported 388 force incidents. HPD, by contrast, made 217,288 stops in 2020 and reported 1,795 force incidents to TCOLE.

Complaints were made 4,047 times in 2020 based on officer behavior at Texas traffic stops, but officers were only disciplined 10 times as a result.

These are a lot of datapoints, and there's a lot to think about here. Why has Houston PD  seen more force at traffic stops than other large agencies? Why do HPD's officers arrest for Class Cs at much lower rates than the Harris County Constable in Precinct One? 

But the big finding on searches is unsurprising. Most of the time, when officers search drivers or arrest them because they think something else is going on (also called "proactive policing"), the biggest "find" is either 1) a traffic warrant for unpaid tickets; 2) contraband so minor it isn't worth charging over; or most commonly, 3) nothing at all, meaning the underlying arrest and trip downtown were utterly pointless.

This is the "tool in the toolbox" that police agencies are so frantic to save, but the volumes of arrests with so little resulting public safety benefit are a testament to the damage being done and why it must stop.

Notes on data cleanup. This is messy data. When departments submitted data with obvious errors, I deleted them, but there's probably still some bad and/or messy data still in there. All deleted data were from small agencies conducting relatively few stops. E.g., the tiny Cleveland Police Department reported arresting 2.9 million black people at traffic stops, though they reported fewer than 2,000 stops overall. Several agencies reported arresting every driver at every traffic stop: Little River Academy Police Department, Jefferson County Constable Pct. 4, Wharton Co. Constable Pct. 1, Orange Grove Police Department, Crosbyton Police Department, the City of Alma Police Department, Tiki Island Police Department, Palo Pinto Co. Constable Pct. 3, Montgomery ISD Police Department, Presidio ISD Police Department, Taylor County Constable Pct. 2, and the LaSalle Co. Sheriff's Office. Jonestown Police Department reported using force on drivers at every traffic stop. I omitted data from these agencies when making aggregate counts. It's highly likely several other agencies submitted problematic data, but I cannot confirm it at the moment and only omitted data when evidence of error was indisputable on its face.

Boost Texas prisoner food budgets 39 cents per prisoner/day

If your annual food budget was $800 per person and that money had to last all year, how would you spend it?

I'll give you a moment: Try to imagine what that would look like.

Having recently spent >$250 at my big, post-SNOVID trip to HEB, Grits can hardly fathom eating for a year on that amount. But that's the dilemma facing cafeteria cooks and nutritionists at TDCJ, where prisoners have been receiving food during COVID more suitable for pig slop than human consumption.

This is what Texas feeds prisoners
on an $800/year food budget

That said, in Texas prisons the pigs are air conditioned while the prisoners and guards are not, so it's likely the pigs eat better than this.

With the Texas Department of Criminal Justice poised to realize nine figures in budget saving thanks to newly closed prison units, the Legislative Budget Board had suggested the agency reduce its budget by $148 million and send that money back to the General Revenue pot. The group I lead, Just Liberty, is requesting they spend that money instead on two items: 1) Expanded treatment funding to move paroled prisoners out of lockups sooner, and 2) increasing prisoner food budgets by $17 million per year.

We discussed the treatment funding in the last post; let's delve deeper into TDCJ food budgets.

Food spending at TDCJ peaked at $106,601,431 paying for food for 155,076 inmates as of 8/31/09. That comes out to $687.41 per inmate spent on groceries in 2009, if you can imagine! 

If that amount had risen with inflation, food spending at TDCJ would currently be at $854.51 per prisoner.

Today, Texas incarcerates fewer people than we did back then - 119,541 as of January 2021 -  but only spends ~$810.56 per prisoner on food.*

Just Liberty is recommending boosting the food budget by 39 cents per day, per prisoner. That comes out to $17 million per year total, or roughly $952.77 per inmate. That's still an insanely small sum to eat on for a year, but it should give the agency enough leeway to improve prisoners' fare.

A final note: We only know how bad prison food is thanks to photos sent to reporters from contraband cell phones. Staff portray cell phones as dangerous contraband, but IRL they're the most important innovation in carceral accountability we've witnessed in the 21st century. Similar to bystander video of police brutality, cell phones in prisons have documented treatment long-alleged but difficult to prove.

Now, thanks to documented, firsthand examples across many units, we know complaints about Texas prison food aren't just whining from criminals: No one would feed this slop to anyone related to them.

With only a few exceptions, most Texas legislators consider themselves Christians. Well, this is one of those moments implicated in Matthew 25:40, wherein the disciples protested that they'd never visited Jesus in prison or fed him when he was hungry, as he'd described. Christ replied that, "whatever you did for one of the least of these brothers and sisters of mine, you did for me." Grits wants to ask state budget writers directly how they'd answer that question at the Pearly Gates: Is 39 cents per day too much to ask for the "least of these"?

Texas doesn't pay prisoners for their labor and, thanks to widespread guard understaffing, the truth is at this point they're largely who's keeping the prisons running. A decent meal isn't too much to ask.

For Keri Blakinger and thousands of hungry Texas prisoners.

*Prison populations have been dropping during COVID; when they budgeted for this fiscal year, the Legislature had been told to expect a much higher prison population, so these per-prisoner numbers look much better than they could have.

#Txlege should use savings from closed prison units to fund needed treatment services

The Texas Legislative Budge Board has "Recommended funding maintains correctional security operations, with a decrease totaling $148 million, primarily related to recent facility closures and 2020–21 repair/renovation projects."

Grits is glad for more prison closures, but it's a mistake simply to reduce the budget by the amount of those units' costs. TDCJ has significant unfilled needs that those savings should pay for. 

One of the biggest: The agency doesn't fund treatment service sufficiently so that thousands of people are approved for parole but must remain in prison until they complete any required treatment. TDCJ doesn't enroll them in treatment until after they're approved for parole.

At any given time, there are around 15,000 people in TDCJ who've already been paroled but can't be released until they've completed treatment. If TDCJ paid for treatment BEFORE people were approved for parole, when they're approved they could leave prison immediately. This would further reduce the prison population and allow even more units to be closed, resulting in even more savings down the line.

The $148 million savings projected would go a long way toward solving this issue, resulting in less incarceration and greater savings down the line. From a management perspective, it should be a no-brainer.

UPDATE: Just Liberty is walking around at the capitol promoting the idea of shifting money to fund these treatment services and to spend a little more on the prisoner food budget, which has been slashed in recent years. Here's the flyer we're distributing.

Plano police do best 'Cartman' impersonation arresting black kid for walking home in the snow

If you needed another example why the Texas Legislature should forbid police from arresting people for Class C misdemeanors, here's yet another poster-child case for the history books.

Rodney Reese, an 18-year old black man living in Plano, was walking home from his job at the Walmart during the Snowpocalypse when police officers stopped him ostensibly for a "wellness check." Carrying a plastic bag, underdressed for the cold in a short-sleeve shirt, he told them he didn't want their help and was on his way home. But the cops wouldn't take "no" for an answer and soon told him he was under investigation and being formally detained, eventually arresting him for "pedestrian in a roadway." To their credit, the Plano PD quickly posted the dashcam video. You can watch the video here.

A couple of things stand out. First, despite the police chief saying he didn't believe race was a factor, it's virtually impossible to imagine Plano cops treating a white 18-year old boy in a similar fashion, or for that matter that any Plano resident would have called the cops in the first place if the boy were white. That's just the truth. The chief said he can't know what's in officers' hearts, but their actions revealed more than words could convey short of calling him the N-word. They weren't treating him like a citizen whose wellbeing they cared about - the ostensible purpose of a "wellness check." He was there to play a role, in their minds, and was punished for refusing to go along with the charade.

Second, there was no public-safety justification for what happened. Reese told them he was going home and was under no obligation to talk to police. (One has a "right to remain silent," after all.) He'd done nothing wrong and his incentive to keep moving and not stop in his under-dressed state was obvious; there was nothing suspicious about his behavior. He was arrested because he chose to exercise his rights.

That element reminded me of the episode in Keller, TX with Dillon Puente and his father. There, the cop got upset because Puente said he was afraid of him, citing images of police brutality on television. Rather than try to understand where the kid was coming from, the cop considered his reticence to interact suspicious and ended up arresting him for making a wide right turn. (In that case, officers also pepper sprayed and arrested Puente's father who was shooting video of the episode.)

Watching the video from Plano, the male cop escalated the situation unnecessarily. The woman initially approached Reese used a lighter touch, but should have taken "no" for an answer. The male cop, however, exhibited what can only be described as a bout of toxic masculinity, tinged with racial animus. This black boy challenged his authority by ignoring him, and that the cop couldn't abide. It was like watching the character Cartman from Southpark insisting "You will respect my authority!" Same energy, as the kids say.

There likely was nothing this kid could have done to avoid this outcome. The cops weren't sent there to investigate a crime, but invoked their investigative powers the moment he failed to show maximal deference and detained him for no good reason. He was 100% right not to want to engage with them.

Mr. Reese was charged with being a pedestrian in the roadway - a Class C misdemeanor - and hauled off to jail. The maximum penalty for that offense is only a $500 fine, so the arrest punished him to a greater extent than the maximum a jury could have imposed following a guilty verdict.

On Facebook we're told, "The arresting Officer noted in the arrest report that although the subject committed the Class B misdemeanor offense of Interference with Public Duties by resisting Officers efforts to detain and handcuff him, the Officers elected to only charge him with Pedestrian in the Roadway, a Class C misdemeanor." This tells you all you need to know about the officer's mentality, framing it as though he was doing the guy a favor. What "duty" was he performing that Mr. Reese interfered with? Checking on the boy's wellbeing. But the kid already told him he was fine and on his way home. In truth, the officer was violating his duty to respect the lad's rights.

Finally, I should add that the Plano Police Chief, who himself is black, to his credit, immediately ordered charges dropped against the kid and said the arrest should never have been made. And he deserves a lot of credit for releasing bodycam video footage so quickly, that's exemplary police management behavior rarely seen in Texas' larger jurisdictions. But his comments absolving the officers of racial motivations rang hollow: It's not credible to imagine white kids in Plano get treated that way. If they were, likely arrests for Class C misdemeanors would have been forbidden a long time ago.

Thanks to data collected under the 2017 Sandra Bland Act, we now know that 64,100 people were arrested for Class C misdemeanors at Texas traffic stops in 2019, and untold more were arrested on the street for Class Cs, like Mr. Reese. Every one of those arrests was an abuse of police power just as much as this was. It has to stop.

Radio silence re: ransomware attack on Texas courts

Your correspondent received a notice my information was in a data breach at a company called Blackbaud which is a digital platform for managing nonprofit donors. The company paid a ransomware demand, despite advisories against doing so from the US Treasury. Insurance companies, by contrast, have defended ransomware payouts. 

This reminds me we've received almost zero information about the ransomware attack on Texas courts last year, and no journalist of whom I'm aware has dug into the topic beyond notices based on agency press releases.

The breach impacted not just the Texas court system but all the agencies under the Office of Court Administration's umbrella, including the Forensic Science Commission, the State Prosecuting Attorney, the Office of Capital and Forensic Writs.

I've heard anecdotally the OCFW faced problems filing briefs in the aftermath of the breach. The Forensic Science Commission was in the middle of rolling out accreditation for forensic analysts when it happened: no word on how any of that was impacted.

Not only has there been virtually no journalism on the topic, there were no public hearings in the interim (the year between Texas' biennial legislative sessions) for legislators to learn what happened or how to prevent it from happening again. It's been near-complete radio silence.

I'd like to believe Texas officials quietly fixed the problem and it won't happen again, but after watching how the state was managed during last week's Snowpocalypse, who believes anyone in state government is either a) competent enough to actually fix problems and b) humble enough not to brag about it if they did? Grits suspects the silence instead is cover for problems we weren't told about.

MORE: Here's an academic piece by David Slayton from the Office of Court Administration giving the most detail I've seen on the Texas courts breach. ALSO: There was another major ransomware attack on CJ systems in Texarkana in December.

Texas oyster crimes are no joke and a symptom of broader problems

This blog has spent an inordinate amount of time over the years focused on Texas' array of oyster-related criminal offenses, to the point that Politifact once did a fact check on my claims. They found them "Mostly True," with the "mostly" caveat being that one source put the numbers even higher than I'd said!

Marc Levin, who recently left the Texas Public Policy Foundation to become general counsel at the new Council on Criminal Justice, first launched this meme as a way to critique overcriminalization, highlighting the fact that Texas has so many felony statutes on the books it's difficult even to count them.

Your correspondent played into the gag, wondering aloud how many crustacean-related crimes are sex offenses and counting the number of oyster-related felonies in "The Walrus and the Carpenter."

Over the years, however, Grits has come to realize Texas' "oyster crimes" aren't just a silly government foible to be mocked at conservative conferences. (TPPF for years held a panel at their biennial legislative conference highlighting "overcriminalization" and featuring this example.) Rather, they're illustrative of some of the core challenges involved in disentangling criminal law from regulating non-criminal behavior in a society organized around what Jonathan Simon has called "Governing through Crime."

Texas has so many oyster crimes on the books for two, fundamental reasons: Scorn for regulation and the environment. Harvesting native oysters is terrible for the latter and the Legislature prefers criminal law to the former.

Including misdemeanors, Texas has dozens of oyster-related crimes on the books, all because the state uses criminal law to regulate unwanted business practices that other states manage through non-criminal regulatory enforcement.

In most other coastal states, civil regulators enforce rules about oyster harvesting. In Texas, it's game wardens and prosecutors. This leads to a spotty patchwork of enforcement dependent on some random lawyer elected DA knowing and caring about the topic and/or being willing to ignore local donors who might object.

For years, the prosecutors' association scoffed at the oyster-crime depiction, insisting such cases were rarely prosecuted. An old college pal of mine who's written their law books for the last couple of decades said the same thing on Twitter when the oyster-crime meme arose this week. But if that was ever true, it's not any longer. 

Hurricane Harvey disrupted the unfettered harvesting of native oysters, requiring more robust state regulation for the industry to survive. Texas A&M Professor Joe Fox noted in 2019, “Due to overfishing, excessive freshwater inflow and loss of infrastructure mainly due to hurricanes, Texas oyster harvests have been trending downward and have experienced a 43% loss in the past three to four years.”

That's what's generating the push for greater enforcement. Without it, the industry could vanish. But prosecutors aren't regulators. Their job is to prosecute crimes, not regulate aquatic industries, even if the latter task de facto falls to them under Texas' absurdist system.

Even if you took these criminal laws off the books, state intervention would be needed for this industry to exist. Otherwise, overharvesting would wipe out the native oyster population in short order. In the 4-day sweep in December, game wardens restored 48,000 pounds of illegally harvested oysters to the bay. In a similar sweep in 2018 netting twice as many cases, "Some of the violators intercepted had cargo consisting of up to 35 percent undersized oysters."

So it's not that the criminal laws governing oyster harvesting are unnecessary. The government has a role to play here. But criminal statutes are a blunt instrument for regulating fishermen. That's the wrong tool for the job. 

To disentangle criminal law from shellfish regulation requires a big picture view that embraces property rights and responsibilities. Decriminalize, regulate, and let people who want to farm oysters grow their own in designated areas. Just letting rapacious private interests plunder a resource till it's gone makes no environmental, moral, nor economic sense.

Texas could wipe out most oyster-related criminal offenses if it 1) banned harvesting native oysters, 2) fostered a transition to (recently legalized) privately managed beds, then 3) regulated the industry under civil instead of criminal law. That'd be better for the environment and the industry long term, and take law enforcement mostly out of the equation.

Crime, Bail, and the Media: A century-old recipe for error and injustice

Grits readers have seen me complain about sensationalist, de-contextualized media coverage of crime and punishment nearly since this humble blog's inception. Turns out, if your correspondent had been transported in a time machine to the early 1920s, the problem would be even worse and Grits may well have gone clean out of my mind.

Recently, I ran across what appears to be the earliest quantitative analysis of media crime coverage in America in a massive, 700+-page document titled, "Criminal Justice in Cleveland: Reports of the Cleveland Foundation Survey of the Administration of Justice in Cleveland Ohio." On p. 544 of this behemoth, we find this remarkable assessment of a media driven crime panic over the course of one month in Cleveland and the predictable, and current-day-relevant policy results from this brand of journalistic malpractice.

The Cleveland Foundation summarized its criticisms of local media coverage thusly: 

Further:

The same sort of misguided attacks were made on parole decisions, focusing on high-profile recidivists while ignoring more numerous, less-attention-grabbing success stories.

The Cleveland Foundation wrote this near the height of a massive, media-driven crime-wave panic. Google has a search function to see how often a word or phrase was used in books they've scanned that were published that year. Here's the graph for the phrase "crime wave."

I've read more than a few historians and critics over the years trace the American media's crime obsession to the cases of Bonnie and Clyde and John Dillinger in the 1930s, when such outlaws became well-known anti-heroes in the eyes of huge swaths of the public. But this graph and the Cleveland survey tell us that compulsion was in full flower - and perhaps even more intense - more than a decade earlier.

Perhaps most telling was their depiction of an episode in 1919 Cleveland which could have been taken straight from 2019 Houston: 

During January and February, 1919, there occurred what was known as the 'bail bond expose.' ... It became known that a number of persons suspected or actually arrested and charged with crimes had been previously under arrest and released on bail. Special newspaper attention was given to the fact that bail was fixed by judges on the recommendation of the prosecutor, and in view of this power of fixing bail by recommendation the prosecutor was urged to demand higher bail.

The over-the-top language was totally out of proportion with all data and designed to mislead and rile up the public. For example: "The toll of pillage and murder increases. Gangsters scoff at law and courts. And peaceful citizens shudder."

This is reminiscent of a litany of overhyped commentary in Houston - most of it in TV news stories quoting Andy Kahan at CrimeStoppers or Houston police Chief Art Acevedo - criticizing judges for lenient bail practices. So this is at least a century-old trope: You could use the same time machine to transport those two back to the 1920s (indeed, I wish you would) and their quotes would blend right in with the rest of the media landscape. In fact, the results of their advocacy in Houston have been similar to the unintended (but predictable) consequences in Cleveland: Jails full of low-level offenders who needn't be there. From the report:

Many of those locked up were liquor law violators who couldn't pay fines; some who couldn't pay were sent to "the workhouse." Even so, the Cleveland Foundation lamented that "the work of individual judges receives special but wholly erroneous interest" in the press, and that demagoguery against judges became so intense that one judge received personal death threats. Even more concerning to judges, however, were the day-to-day practical problems it created:

Houston judges are in the same boat. The jail is currently overcrowded as a result of some combination of regressive media influence, COVID-driven court backlogs, and the governor's executive order limiting bail. The COVID delays are exogenous to this question, but media pressure on judges and the governor's executive order are directly analogous to the judges' and prosecutors' actions in response to media coverage in Cleveland. Here's the lede to a recent Houston Chronicle story about overcrowding at the Harris County Jail:

Preston Chaney died of COVID-19 after more than three months at the Harris County Jail on allegations he stole lawn equipment and frozen meat. Two days later, Chaney’s court-appointed lawyer, who’d logged just two hours on his case, billed for additional work.

Chaney had a hold and was rejected for personal bail under Gov. Greg Abbott’s pandemic order banning the release of anyone with violent charges or prior arrests. Had the 64-year-old been able to scrape together $100, he could have waited for trial away from the packed downtown lockup.

This was an avoidable death. Tuff on crime demagoguery has consequences. Local media, particularly in TV news, deserve a share of the blame for it.

Deep in the Weeds: Sandra-Bland data provides first-ever detail on scope of arrests, searches at Texas traffic stops

For reasons Grits fails to understand, neither reporters, academics, nor independent researchers have mined Texas' extensive "racial profiling" dataset extensively, though it's one of the most robust quantitative treasure troves of data on police-traffic stops of which I'm aware, anywhere. To a large extent, new data reported after 2017's Sandra Bland Act (we were given data collection in lieu of a policy ban on Class C arrests) gave us a big-picture overview of what goes on at Texas traffic stops for the first time at a level of detail even experts hadn't seen before.

Your correspondent needed to pull some data this morning for other purposes, so let's dump some interesting, previously un-reported tidbits here.

The Scope of Texas Traffic Enforcement

In 2019, Texas law enforcement officers reported making 9.7 million traffic stops in racial profiling reports submitted to the Texas Commission on Law Enforcement.

About 3.9 million of those stops, roughly 40%, resulted in citations. (For reasons no one fully understands, citation totals have been falling for more than a decade.)

Agencies reported someone was arrested at 306,962 stops, or at 3.2% of all traffic stops in 2019.*

A majority of those arrests (168,951) related to penal-code violations. In many cases, officers discovered contraband that triggered these arrests. Seventy percent of all contraband found was drugs or drug paraphernalia.

Avoidable Arrests

Roughly a quarter of arrests at traffic stops (73,911) were for outstanding warrants. These are folks truly suffering from the Debtors Prison Blues:

In addition, 21% of arrests at traffic stops were for Class C misdemeanors (64,100), mostly moving violations and a few arrests for breaking municipal ordinances. These are the arrests that would be eliminated under the George Floyd Act (and should have already been eliminated: similar language was pulled out of the Sandra Bland Act before it passed in 2017). Here's a breakdown of arrests by type:

Police reported using force at .6% of stops, or 60,034 total times in 2019, but use-of-force rates by department varied widely.

Why Do We Search?

In aggregate, Texas cops conducted searches at about one in 20 traffic stops statewide (5.1%), discovering contraband a bit more than a third of the time (34.5% of searches resulted in contraband "hits."). Roughly a quarter of all traffic-stop searches in 2019 (26%) were conducted based on "consent searches" in which the driver gave the officer consent to search. Another 35.8% happened because the officer observed probable cause; and about a third were "inventory searches" or "searches incident to arrest."

This data from the Sandra Bland Act casts new light on what previously was a largely opaque process illuminated only occasionally and momentarily by the release of bodycam video or civil litigation. But the plural of anecdote isn't "data" and until recently, we didn't have department-level numbers to provide insight into local, much less statewide traffic-enforcement practices.

Opportunities

As I look at this heretofore-unreported data, it reinforces the key opportunities for decarceral legislation aimed at traffic stops: The Sandra Bland/George Floyd Act language would eliminate 21% of traffic-stop arrests. Reducing the number of warrants under the Omnibase program would shrink another sizable chunk.

Finally, if drugs make up 70% of contraband found, Grits would expect most of that to be marijuana. So drug-related penal-code arrests could also go down when we see 2020 data because of the Great Texas Hemp Hiatus. (Grits would prefer to see marijuana straight-up legalized, but even tamping down arrests via the new hemp law is an improvement over prior practices.)

Traffic stops are a major, front-end driver of county jail admissions. So anything that reduces how often they result in incarceration also reduces pressure on local taxpayers and avoids adding people to the jailhouse petri dish who might be exposed to COVID.

The newest round of "Sandra Bland" data comes out March 1st, and this time, problems with racial categorizations are supposed to have been fixed. So reporters and researchers should mark that date on their calendar (some agencies have already begun to submit) and set aside time for a deeper dive when that information becomes available. There's a lot of good stuff there.

*A handful of small agencies reported that they arrested someone at every traffic stop. This was clearly an error and those agencies' arrest totals were excluded from this calculation.

Beyond "aid" to law enforcement: Crime-lab independence speaks to scientists' differing priorities from cops

The debate over making Austin's crime lab independent from the police department - which the City Council will take up on Thursday - inadvertently helps demonstrate why such change is necessary.

Austin's city manager Spencer Cronk for years has balked at making the crime lab independent. Now that the community has made such "decoupling" a part of "reimagining" the police budget, he has had little choice but to embrace the idea. But he's doing so in the most tepid, pro-cop way imaginable.

Here's the proposed ordinance, which places the crime lab under control of the city manager with no independent oversight board. Check out the vision statement for the new agency, then let's compare it to Harris County's forensic science center.

The Forensic Science Department shall be engaged in the administration of criminal justice in support of state, federal, and local laws, and shall aid law enforcement in the detection, suppression, and prosecution of crime. In carrying out this purpose, the Forensic Science Department shall:

• Conduct objective, accurate and timely analyses of forensic evidence supporting the administration of criminal justice, and perform related services;

• Allocate substantially all of its annual budget to such criminal identification activities; and

• Be responsible for the following services in support of criminal justice: crime  scene investigation; evidence management; firearm/toolmark examination; seized drug analysis; toxicological analysis; latent print examination; DNA analysis; and related forensic services as may be now or later developed for public safety purposes.

 • Establish such policies, management control agreements, and procedures as necessary to carry out its purposes and activities stated above.

By contrast, here's the Mission/Vision statement for the Harris County Institute of Forensic Science:

The Mission of the Harris County Institute of Forensic Sciences is to provide medical examiner and crime laboratory services of the highest quality in an unbiased manner with uncompromised integrity.

Vision

To provide consistent, quality death investigation and laboratory analysis for the benefit of the entire community.

To create a technological strongpoint for legal agencies to facilitate justice in criminal and civil proceedings.

To establish an academic environment for training in the field of Forensic Science.

Notice the difference? In Harris County, the "mission" is about quality science that benefits everyone. In Austin, the proposed mission is to "aid law enforcement in the detection, suppression, and prosecution of crime" and to "Allocate substantially all of its annual budget to such criminal identification activities."

If the department allocates "substantially all" of its budget to "identification," will it be able to implement the sort of quality-assurance systems needed to prevent false convictions? Will the department spend adequately on scientists' professional development? They haven't in the past. Nothing in the proposed ordinance reflects any of the myriad problems that put the lab on the "decouple" list in the first  place.

In the Harris County example, scientists are encouraged to be scientists; in Austin, the city manager views them as an agent of law enforcement. 

These are quite different approaches, reinforced by different governance structures: The Austin City Manager has suggested the crime lab report to him just like other departments. By contrast, the Harris County lab director reports directly to the county commissioners court. The Houston lab - itself spun off from the police department - has its own independent board.

Several local civil-rights and victim advocacy groups are petitioning the City Council to change the proposed mission statement and "activities" before this comes to a vote on Thursday. The same groups aim to champion changing the lab's governing structure soon after the new department is created.

This debate has been a long time coming, and it speaks poorly of Austin PD's leadership that crime-lab independence hasn't happened before now. The lab has been a mess for a while now and independence from law enforcement has been considered a best practice for more than a decade.

UPDATE: The city council approved the ordinance separating the crime lab from APD, and changed some of the language I'd complained of in this post. It remains to be seen whether they will come back with more changes to create an independent board for the lab.

Lots of local Texas #cjreform action, even as the #txlege is slow as Christmas

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

TX Senate Committees May Only Meet 2-3 Times: The Texas Legislature's ramp up remains slow as Christmas; a few things are happening, but "not much" appears to be the new normal. On its website, the state prosecutors' association told its members, "don’t be surprised if many Senate committees hold no more than two or three hearings on Senate bills for the entirety of this regular session." Yikes! Usually, you might see 8 or so.

Vanishing Excuses for Class C Arrests: The Texas Observer's Arya Sundaram has a feature on Dillon Puente's arrest in Keller, TX, and the issue of regulating Class C arrests, which carry a maximum punishment of only a fine, not jail time; give it a read. Puente's father, who was pepper sprayed for recording his son's arrest on his phone, sued and agreed to a $200,000 settlement last week. Notably, the police unions haven't particularly updated their messaging on this topic. Back in 2015, when Sandra Bland was arrested for failure to signal a lane change and died in jail, cops could get away with saying such episodes were rare because no one knew for sure. Now, thanks to data gathered in her name, we know that, in 2019, Texas law enforcement reported 64,100 arrests at traffic stops for either moving violations (mostly) or municipal ordinances. That's more folks than were arrested for marijuana (see below)! Regrettably, departments haven't generally made these assessments for themselves. But at a time when courts have slowed, jails are packed and COVID continues to rage, it makes little sense to complicate Sheriffs' already tough job by arresting people for fine-only offenses. The Texas Legislature should put an end to it. 

Investing in Police Reform: In San Antonio, the group Fix-SAPD has leveled up its fundraising, bringing in more than $300,000, mostly from the Texas Organizing Project, to support its petition drive aimed at repealing the police department's civil-service system. Local officials are increasingly nervous this effort may succeed, but not enough to be more aggressive at the negotiating table. Petition organizers already had enough signatures to challenge the department's meet-and-confer contract, this may give them enough resources to get the larger initiative on the ballot.

Fort Worth to Use 'Civilian Response Teams' for Welfare Checks, Minor Accidents: After their mayor participated in a press conference with the governor bashing Austin for similar policies, Fort Worth PD has created a 10-person "civilian response team" which will "handle calls like minor accidents and welfare checks" instead of police, diverting about 1,000 calls per month. “'We have so many tools on our tool belt than just arresting people and taking them to jail,' said Lt. Amy Ladd,” who leads the department's crisis-response teams.

You Can Still Get Busted For Pot in El Paso: Many large Texas jurisdictions have all but stopped enforcing low-level marijuana possession laws because of what Grits has called the "Great Texas Hemp Hiatus." Essentially, most agencies aren't willing to pay the expense of testing to differentiate user-grade marijuana from "hemp," which comes from the same plant. Statewide, marijuana cases declined from more than 80,000 in 2018 to around 45,000 in 2019, when the law changed halfway through the year; everyone expects 2020 figures to be even lower. But El Paso prosecutors have been an exception, insisting they'll plow forward with prosecutions as usual. This news story contains data on the "cite and release" program they implemented instead. Only about a quarter of cases see citations issued: The rest are being taken to jail just like before. No word on what's happening to contested cases taken to trial in El Paso, since, of course, few trials are happening anyway.

Austin Action: Travis County District Attorney Jose Garza announced a more detailed version of new policies under which he'll run the office. See a Twitter string where Grits discussed them and my earlier commentary on Garza's initial push out of the gate after taking office. Meanwhile, the new civilian review board in Austin has started up and it's next meeting is Monday. They're going to hear a briefing on the review of Austin PD training video performed by a select-community panel. For more background, see here.

Goines Repeatedly Lied About Firearms to Get No-Knock Warrants: More charges have been filed against officers from Houston PD's Narcotics Unit, which your correspondent has argued should be shuttered. Reason has excellent coverage of just-filed litigation against Houston PD related to the killing of an innocent couple in the Harding St. raid. Here's a notable excerpt:

This basically amounts to getting SWAT-ed by the cops: Somebody (in this case, a narcotics detective) tells a lie about having a gun then, in the case of Dennis Tuttle and Rhogena Nicholas, cops break down the door and kill everyone inside.

Homeland Security Planning Process a Consultants' Bonanza: A remarkable graphic appeared in the Texas Homeland Security Statewide Strategic Plan related to just how much such planning goes on in this state:

That's incredible: A consultant's bonanza, one wag rightly observed online. Who has read them all for consistency of vision, implementation, etc.? If the answer is "no one," or perhaps some beleaguered bureaucrats no one listens to in the bowels of DPS, then those gaps will only be revealed in implementation, as so many were, for example, during Hurricane Harvey. To an extent, I understand it: Texas is a big place, diverse across many different vectors. But wow!

Injunction-Junction, What's Your Function? Some of the targets of Harris County's civil prostitution injunction were dismissed from the case because prosecutors determined they were sex trafficking victims instead of perpetrators. This episode shows how nebulous those distinctions often are. I'm not particularly a fan of using civil law to constrain people's liberty when you don't have probable cause to arrest them, which is how these injunctions work. Kudos to Harris County Attorney Christian Menefee for rethinking the approach.

34 Years Later, A Chance for Justice: In Dallas, DA John Creuzot agreed with most of Ben Spencer's habeas claims, the Dallas News reported, boosting his chances for relief. Spencer was convicted of a carjacking and murder in 1987 but has always maintained his innocence. The trial court had earlier supported his actual innocence claims, only to have the Government-Always-Wins faction on the Texas Court of Criminal Appeals reject them in 2011. This new habeas writ is based on three witnesses who've since recanted their testimony.

DNA Losing its Shine as 'Gold Standard' Evidence: Practices at Austin PD's DNA lab were so error-filled and misguided that it would be "shocking to the conscience" to uphold Areli Escobar's murder conviction based on its disputed findings, found a judge in findings of fact for a habeas writ. See the order from Judge David Wahlberg, it's a doozy. Austin is considering "decoupling" its crime lab from the police department: This case is Exhibit A why that's a good idea. For more background on problems with interpreting mixed DNA samples, see the links rounded up here.

Sensory Penalties: A new book is coming out on "Sensory Penalties," exploring how prison is perceived through the five senses - a topic which arises plenty in current and former prisoners' writing, if seldom in a systematic fashion. But they want a $100 for it (academics!) and your correspondent balked at the price. So I was pleased to discover this panel featuring one of the authors discussing highlights. That's a start.

For the Reading Pile: Maurice Chammah sent me a copy of his new book on the death penalty, Let the Lord Sort Them Out, which was recently reviewed in the NY Times and features a section on my college pal Danalynn Recer. Looking forward to that. Thanks, Maurice! Meanwhile, with Austin considering decoupling its 911 call center from police department (as Houston and many other jurisdictions have done), I was interested to see this academic article, "Calling the Police: Dispatchers as Important Interpreters and Manufactuers of Call for Service Data." Perhaps their analysis will contribute to thinking through that process, as surely will the Vera Institute's recent work on the topic. 

Poll: Texans overwhelmingly support Senfronia Thompson's "George Floyd Act"

The University of Houston polled 1,329 Texans on numerous criminal-justice topics, including state Rep. Senfronia Thompson's George Floyd Act. Their poll question did a pretty good job of summarizing the legislation:

They polled both the act as a whole and each individual component. Opposition was incredibly low in every case:

Overall:

Politicized debates during the election season elided areas of broad bipartisan agreement and portrayed policing issues as a source of partisan contention. These results show there are important reform policies on the table that would receive overwhelming public support. Many of those are included in the George Floyd Act.

Why the #txlege should add point-and-report to statewide police shooting data

In a roundup a few weeks ago, Grits pointed to a new academic study analyzing Dallas police shootings which associated a "point and report" policy with a reduced number of people shot because the officer falsely thought they were armed. Now, the authors have written an op-ed in the Dallas Morning News about their findings. Here's a notable excerpt:

According to the Policing Project at NYU School of Law, police reform falls into two categories: front-end vs. back-end accountability measures. The former includes strong policies and practices to create a culture of organizational accountability before things go wrong, while the latter reflect after-the-fact, methods for holding individual officers responsible for their misdeeds.

Back-end accountability mechanisms are important and they deservedly receive much attention. Yet they are not enough to produce real change. Police reform requires more of the often-neglected front-end mechanisms that target institutional and organizational issues that lead to unnecessary and excessive use of force. A prime example of front-end accountability is implementing stricter departmental policies that limit the circumstances when officers can use force, coupled with documentation and review protocols. There is a rich history of more restrictive administrative policies effectively reducing officer-involved shootings and other types of less lethal force, such as the use of Tasers and pepper spray.

Starting in the 1970s and following the lead of the New York City Police Department, agencies began amending their deadly force policies to only allow officers to shoot in “defense of life” situations, when there is a risk of death or serious bodily injury to themselves or others. Additionally, departments began requiring officers to report when they discharged their firearms, and some departments created review boards to investigate such shootings. These policy changes not only led to significant declines in officer-involved shootings (especially of unarmed citizens), they also reduced racial disparities in police shootings.

Point-and-report policies are front-end accountability efforts that require officers to document all instances of pointing their guns at citizens. This kind of policy is not new. For example, the Charleston, S.C., and La Grange, Georgia, police departments incorporated such a policy in the 1990s. The Baltimore, Chicago, Cleveland, Dallas and New Orleans police departments have all adopted similar policies in recent years.

However, these departments are more the exception that the rule, as many police officers in the U.S. are not subject to point-and-report policies. Moreover, there’s been little research on the impact of a point-and-report policy. Does such a policy reduce police shootings? In a new article published in Injury Prevention, we tested the impact of the Dallas Police Department’s point-and-report policy on police shootings of citizens. It took effect on Jan. 1, 2013, and we used publicly available shooting data from DPD to investigate. We examined the total number of shootings as well as specific characteristics of those shootings before (2003 through 2012) and after (2013 through 2018) the policy change.

Before the policy, DPD averaged 15.3 shootings per year. That average dropped to 13.0 post-policy change (a 15% decline). Our statistical analysis showed that the policy was associated with a significant, gradual reduction in police shootings of citizens that began in late 2015 and continued through the end of 2018.

Perhaps more importantly, the policy was also associated with a decline in the shootings of unarmed citizens (that is, they had no weapon such as a gun or knife), especially citizens who the officers thought were armed when they were not — a “threat perception failure”). Such a failure occurs when officers mistake an item in a person’s hands, such as a cellphone, for a gun. The proportion of threat perception failure shootings declined by nearly 80% after DPD adopted the point-and-report policy (from 18% of all gun or perceived gun cases before the policy change to 4% after).

Last, we also found no increase in the proportion of these incidents in which an officer was injured. Officer injuries actually declined slightly.

These findings are very promising, though we can only speculate on the mechanisms driving those effects. Perhaps the policy adds another layer of organizational accountability. It might also limit the occasions when officers draw and point their weapons, prompting them to take more time to differentiate real threats from threat perception failures.

It may also reduce the potential for officers to escalate a situation unnecessarily, or it might lead them to consider more options for resolving the encounter peacefully (rather than painting themselves into a corner once the gun is drawn). Five decades of research tell us that administrative policy is an important front-end mechanism for controlling police officer use of force. Clear, detailed use of force policies that are enforced shape officer decisions to use their firearms. Our study suggests that a point-and-report policy can do the same.

In 2015, Texas passed legislation to require departments report police shootings - fatal or otherwise - to the Attorney General, giving us a dataset helpfully gathered and organized by our friends at the Texas Justice Initiative. It would be simple to add a provision requiring reports whenever officers point their weapon but don't fire, and if this study from Dallas is any indication, the measure could save lives.

Please prove me wrong: Jose Garza wants to make Grits eat my words

Travis County District Attorney Jose Garza is trying to change Grits' mind about "progressive prosecutors." He hasn't succeeded yet, but in the early days of his administration, he's giving it the ol' college try.

In the last week, Garza announced indictments of two officers who'd allegedly engaged in excessive force but weren't punished by police management, and said a grand jury would soon consider charges in the deaths of the police officers who killed Mike Ramos and Javier Ambler. Then yesterday, his office agreed Rosa Jimenez - the babysitter falsely convicted 18 years ago of murdering a child in her care - could be released on bail pending her appeal, and Judge Karen Sage agreed. 

These are major shifts in policy. In recent years, we've seen Texas prosecutors seek indictments for cops following publicity and public pressure - as in the Mike Ramos and Javier Ambler cases - but seldom in less high-profile situations, and never when the police department failed to discipline them. The indictments of officers cleared by APD Internal Affairs amounts to another "no confidence" vote for police Chief Brian Manley, this time from the sitting District Attorney. And it validates public concerns that the department's disciplinary process fails to hold certain officers accountable. 

An equally big shift involves the level of transparency Garza pledged to provide about such cases. He released the first of what he promised would be bimonthly reports on cases involving alleged law-enforcement misconduct. Under Margaret Moore, the DA's office amounted to a black hole from which no light emerged unless she imagined it would cast her in a flattering manner.

Indeed, Garza effectively countered complaints from police about the indictments by doubling down on his commitment to transparency:  "To the extent that Chief Manley and others have concern about the grand jury determination in this case," Garza told the Statesman, "they should immediately release all of the relevant video footage so that our community can see the conduct for themselves." By contrast, Moore's practice was to tell APD not to release video in such cases.

Meanwhile, Grits couldn't be happier that Rosa Jimenez was released pending appeal of her habeas writ. Six judges have now said Jimenez is innocent or at least deserves a new trial, but under state law, Attorney General Ken Paxton controls the appellate process in federal court and he has appealed all their rulings. Because of the innocence findings, under Texas law, Judge Sage can release Jimenez on bail pending the final outcome if the DA agrees. Former DA Margaret Moore chose instead to defer to AG Paxton, so this is evidence elections definitely matter.

Jimenez should have been released years ago. She was convicted based on junk science after the trial judge refused to pay for defense experts to counter misinformation presented by Travis County prosecutors. So this was an incredibly happy day. If it weren't for COVID, your correspondent would have gone to the courthouse for the event. When the news came, I literally shouted for joy. (Bilbo the Criminal-Justice-Reform Dog, I should add, was rather confused and taken aback at this outburst.) It's possible she may be released and reunited with her (now adult) children as soon as Friday.

So let me take this opportunity to say "thank you" to Jose Garza, and for that matter to Judge Sage. I'm proud of and grateful to both of them for this.

Even so, Grits has never been comfortable with the phrase "progressive prosecutor." I think of the prosecutorial function as inherently regressive: a one-trick pony whose "trick" is to punish people for violating state dicta. As I wrote five years ago, usually when a new District Attorney is elected:

management changes, but the day-to-day operations remain much the same as they functioned when our grandparents ran much-smaller versions several decades ago. Any differences between electeds play out at the margins of just a handful of individual cases. But the overarching structure and purpose of the institution inevitably remains undisturbed. Even when DAs take a progressive step, there are almost always pragmatic, internal reasons for it.

Grits added, however, that this wasn't an inevitability: "That's not to say it wouldn't be possible for a DA to fundamentally redefine the job. They have enough discretion to where all sorts of interesting possibilities might present themselves if smart people put their minds to it." But the first round of Texas DAs elected after campaigning as "progressive" - including in Houston, Dallas, San Antonio, and Corpus Christi - have fundamentally continued to perform the office's functions in the same way they've always operated.

That's an observation more than a criticism. Change is hard. And slow. Plus, there exist few models for alternative approaches that might truly merit a "progressive" label. The cases described above - indicted cops and an innocent person released - still boil down to decisions whether or not to use the stick. We've not yet seen a fundamental reimagining of the prosecutorial function in Texas, and arguably anywhere (although admittedly, I don't closely track what prosecutors are doing in other states).

Still, Jose Garza is showing how much discretion matters. So far, these fall into the category of cases that "play out at the margins." But they're welcome moves, and evidence that he really does intend to operate the office differently. To me, the real test will come when we see how more workaday, less-high-profile cases get handled, particularly on drug and sexual assault charges. At this point, I'm hopeful bordering on optimistic that Garza will prove me wrong about "progressive prosecutors."

Like Fox Mulder in the old X Files series, I want to believe.

MORE: See Garza's 3-page memo on new policy changes he's implementing at the Travis County DA's office.

Correction: An earlier version of this post said the officers who shot Javier Ambler and Mike Ramos had already been indicted. In fact, Garza has said he will take their cases before a grand jury in the current term. Grits regrets the error.

Review of Austin police training videos finds bias and selective deescalation tactics

Videos used to train Austin police officers in the cadet academy contribute to bias, stereotypes, and model disproportionate application of force and deescalation tactics, says a group created to review them. Will the mayor and city council plow forward with a new cadet class, anyway, or will this news finally cause them to take concerns about the academy's pedagogical shortcomings seriously?

A community panel charged with reviewing video materials used for teaching Austin police cadets at the academy has completed its work, and the results are damning. From the executive summary, here's the meat of their critique:

The overall library of videos selected perpetuated dangerous racial and class stereotypes that displayed working class people and communities of color as disproportionate recipients of violent and deadly responses from police. People of color seldom benefited from crisis intervention or deescalation strategies from officers in videos. Instead, a strong emphasis on gaining compliance and control over all else from communities of color often led to rapid escalation with often violent and even deadly results for minor infractions. In contrast, white community members were most often extended grace and understanding. Opportunities for story-telling and building empathy was almost exclusively given to white men.

Here's the full report, and initial coverage from KXAN. A companion document prepared by the panel's facilitators echoed similar concerns. These criticisms come on the heels of a review by the city's Equity Office finding Austin's police academy subjected cadets to unnecessary hazing and fostered a "culture of violence."

Mayor Steve Adler and the City Council's newest member, McKenzie Kelly, want to restart the police academy as soon as March. The analogy being used behind the scenes is that APD can repair the plane (i.e., the academy) while they're flying it. I wonder if aircraft mechanics are as enamored of that idea as politicians who want to restart cadet classes without addressing the underlying problems?

Among the flaws the community panel wants them to fix: "An emphasis on 'winning' interactions and a 'warrior mentality' in many videos created and repeatedly reinforced an 'us versus them' and 'good guy/bad guy' dynamic that pits officers against community members."

In addition, "Many videos emphasized a transactional approach to interacting with the community with a focus on liability and quid pro quo exchanges, rather than what is needed to develop genuine, authentic interactions with community members to sustain long-term trust and relationships."

Further, "Videos that showed officers antagonizing community members and using excessive force were attributed to aberrant individual behavior rather than acknowledging the cultural and systemic factors that permit or encourage such behavior."

None of this is new: Cadets themselves identified all these problems years ago and some of them sued the department over it. Now, though, two different independent reviews commissioned by the city itself - one performed by consultants, the other by a community panel - have corroborated and reinforced those criticisms.

This has been going on a long time now. City Manager Spencer Cronk was told in December 2019 to begin the review whose results we're seeing now. He blew off the city council and asked them to restart cadet classes over the summer without having fixed the curriculum. In August, though, the city council told him, "No, we're serious," and the city finally began the long-awaited review.

Between the equity audit and the video review, its' clear at this point that Austin's curriculum for cadets needs a soup-to-nuts overhaul. There's no emergency need for officers so pressing that an academy can't wait a few months to fix all the pedagogical problems. Indeed, after everything we've been through in Austin over the last year, it would be a tremendous betrayal of trust to ignore these recommendations and move forward as though the same ol' same ol' was still good enough.

When the jail is full, Sheriff, what you gonna do?

Grits noticed the bad news that the Harris County Jail population has ballooned back up near capacity, as reported by Gabby Banks at the Houston Chronicle. Rather than a detailed policy analysis, which I've been offering up on this blog for a decade-and-a-half when it comes to the Harris County Jail, let's change things up on a Friday afternoon and present a few lines of verse, instead:

When the jail is full, Oh Sheriff, what you gonna do?

The cops they keep on bringing them but the courts don't pass them through.

Crime is low, arrests are down, but the seams are bustin' through.

Say, when the jail is full, Sheriff, then what you gonna do?

My cousin the jailer says their numbers' sinking low. 

The state says 1 to 48, but it's harder than they know.

'Cause COVID stopped the jury trials so teeming multitudes

Now wait out the winter months behind those bars so rude.

Oh, when the jail is full Sheriff, hey, what you gonna do?

I hear dozens of jailers are now out. Is it the flu?

And all this so some lawyers can feign verisimilitude,

Instead of just releasing folks till their day in court is due.