Which prisons, state jails might Texas close next?

Texas famously closed three prison units in recent years. Could we close more?

After the Legislature raised property-theft thresholds to $2,500 last session, Grits expects downward prison-population trend lines to descend even further. And with legislators seriously discussing possible reductions in sentences for low-level drug possession, the possibility arises that Texas could close even more prison units in 2017, particularly so-called "state jails" (which in essence house people convicted of fourth-degree felonies, known in Texas penal-code parlance as "state jail felonies").

To begin thinking about this question, Grits asked TDCJ's public information officer Jason Clark for a list of private prison contracts up next year, since those are the easiest units to close (because the state can simply not renew the contract and doesn't have to worry about closeout costs on the real estate). Two of the three units Texas closed so far have been private facilities.

There are four state jails whose contracts expire Aug. 31, 2017 which conceivably could be targeted for closure if current incarceration rates continue to decline. All four are operated by Corrections Corporation of America:

• Bartlett State Jail (1,049 beds)
• Bradshaw State Jail (1,980 beds)
• Lindsey State Jail (1,031 beds)
• Willacy State Jail (1,069 beds)

The other private units with contracts up next year don't amount to much, capacity-wise, so future prison closures beyond the state-jail system likely should extend to state-run units.

As Grits has discussed at some length in the past, there are many criteria on which legislators might prioritize which units to close. Private facilities stand out for ease-of-closure. But there are units around the state which can barely remain staffed because of worker shortages, which have not eased as rapidly as one might expect given the recent oil-price bust. Other units have trouble providing sufficient clean water to inmates and staff (prison units are notorious water hogs). And some older units built a century ago or more have exorbitant cost-per-prisoner ratios, creating a natural closure-target list of the most expensive ones, if such things were based on a pure cost-benefit analysis.

Finally, there are units which meet none of those criteria but which lie on real estate that would be worth much more to local developers and the tax rolls if the property were redeveloped to reflect it highest, best use. Two of the three units closed already resided in those sorts of desirable development corridors. The Dawson state jail in Dallas stood in the way of the city's Trinity River Redevelopment, while the Central Unit near Sugarland sat between a business park and the regional airport, with the local chamber of commerce supporting its closure. As more once-rural units buck up against suburban sprawl and find themselves neighbors with commercial developments, country clubs, and expensive homes, another short list emerges based on a set of interests which lie beyond the prison walls and even state government.

In an era when the United States has 5 percent of the world's population and 25 percent of its prisoners, with Texas incarcerating more people by far than any other state, Grits doesn't care much which prisons the state closes, or why. I just want them to close more. We can debate later how much deincarceration is too much. Right now, we're a long way from that particular fork in the road.

Senators hate on driver surcharge law: 'Immoral,' 'blood money,' 'debtor's prison'

At a Texas Senate Transportation Committee hearing yesterday, Chairman Robert Nichols chastised the Department of Public Safety for failing to implement an amnesty program since 2011 for the Driver Responsibility Surcharge, even though the agency has authority.

Last year, DPS officials told legislators they were considering another amnesty program during the interim, but backed away from the commitment after the members left town. Chairman Nichols told them they didn't need to wait for legislative approval and to come back to his committee March 29 with plans for an amnesty program and other suggestions for mitigating public harm from the program.

You can watch the hearing here, it's the first item up. And for once, there was good MSM coverage:

• Austin Statesman
• Dallas News
• Houston Chronicle
• Texas Tribune

Here are a few money quotes, first from the Statesman:

State Sen. Rodney Ellis, D-Houston, called the program immoral because a failure to pay the fees — which are levied in addition to court costs, fines and penalties — results in an automatic suspension of a driver’s license, placing those who can least afford to pay at risk of losing jobs.

About 1.3 million drivers have lost their licenses under the program, he said.

“To me, it just looks like what we’ve got here is a debtor’s prison,” said state Sen. Don Huffines, R-Dallas, who noted that the state has been able to collect only $1.5 billion of the $3.9 billion in fees assessed since 2003.

“You’ve got $2.4 billion owed by the poorest people in our state. That just seems like bad government,” Huffines said. “We’re making a permanent underclass here.”

From the Dallas News:

“I’m not sure if I’ve ever seen a law that the unintended consequences have had such a negative effect on our public,” said Harris County Criminal Court Judge Jean Spradling Hughes.

Critics of the program, which was created in 2003, have long said it is unfair to poor Texans. By suspending the license of a driver who can’t afford to pay surcharges and then sending them to jail when they’re arrested for driving without a license, criminal justice reformers say the program creates debtors’ prison.

Several lawmakers agreed.

“This is very similar to the spiraling effect of a payday loan,” Sen. Sylvia Garcia, D-Houston, said Wednesday. “It just makes poor people poor.”

From the Chronicle:

"The program has problems and has had problems since Day One," said Committee Chairman Robert Nichols, R-Jacksonville. Noting that lawmakers have aired grievances about the program for several years, he added, "we have given you enough direction to work on the problem."

From the Tribune:

Outside the hearing room, Bill Hammond, CEO of the Texas Association of Business said he was troubled by the way the program forces people who need to drive to work to risk exorbitant penalties.

“It’s failed public policy. It’s not working,” Hammond said, describing it as "double jeopardy." “In order for people to eat, they have to work, and in order for them to work, they’ve got to drive in most cases. So it’s just a cascading situation that gets worse and worse, and it doesn’t create the behavior it’s intended to create.”

And here are a few items from Grits' notes:

The Legislative Budget Board told the committee the program raised $151.2 million in FY 2015. Hospitals received much less, though. Greg Glod from the Texas Public Policy Foundation gave the committee this spreadsheet showing how much went to individual hospitals last year: $54.7 million.

The collection rate has risen from 40% in 2010 to 51% in 2014, said LBB, mainly because of waived revenue from amnesty and indigence programs.

Since 2003, the program has billed $3.9 billion dollars but collected only $1.5 billion, said LBB. (N.b., since 1.5 is 38% of 3.9, I don't understand where the 40 and 51% numbers come from!)

Texas added more than 681,000 new DRP cases in FY 2015, and 1.8 million drivers have active cases.

Chairman Nichols suggested the state should find ways to "reward good behavior" by reducing surcharges instead of focusing only on punishment.

Sen. Bob Hall called DRP revenue "blood money" and questioned whether the government should be in the business of subsidizing commercial hospital ventures at all.

Sen. Lois Kolkhorst, who is the hospitals' staunchest supporter on the committee, told Hall that government already massively subsidizes health care and that ship has sailed. But she also chimed in at one point to say, "I don't want a debtor's prison" and seemed genuinely concerned at the huge number of people in her district who owe surcharges.

Sen. Sylvia Garcia compared the effect on poor people to that of "payday loans," an analogy the other senators picked up approvingly.

Elizabeth Henneke of the Texas Criminal Justice Coalition offered written testimony (uploaded here) an an anecdote about an indigent client, a 67 year old woman, who'd been incarcerated for a week four different times, had lost her home and marriage because she couldn't drive to work, and essentially would never be free from the entangled mess.

Henneke said most lawyers do not advise their clients about the DRP. (That's a huge problem: Grits thought they were required to do so after the Supreme Court's Padilla case made them advise of collateral consequences.) She suggested the Lege divert court fees from general revenue to raise money for hospitals because then judges can address indigence and attorneys would better advise their clients.

Judge Jean Spradling Hughes from Harris County told the committee, "This law has not enhanced public safety in fact it has put it in dire straits." "Daily I see people who are in this cycle," she declared, "and are not going to get out," and not just poor people but middle income people, too.

Judge Hughes suggested doubling the cost of driver licenses or adding $5 to vehicle registration to cover the cost of abolishing the program.

Right now, she said, defendants must choose between paying surcharges to get a driver license or paying for insurance. "I can put them in jail for a year and it's not going to change their behavior," she said. "Most of the people want to comply but financially they just can't do it."

Emily Gerrick of the Texas Fair Defense Project emphasized how quickly everything adds up. After a first surcharge goes unpaid and someone's license is revoked, at subsequent stops they get multiple tickets with additional surcharges - no insurance, no registration, invalid license. She cited a study from New Jersey, which is one of the only states with a similar program, finding that,  after losing their licenses, 66% of surcharge-owing drivers lost their jobs.

Bottom line: At a time when 63 percent of Americans "don't have the savings to cover a $500 car repair or a $1,000 medical or dental bill," this cruel abomination of a program does far more harm than good, both to the public and the economy at large. It may have taken legislators more than a decade to realize it, but we appear to be approaching a consensus, at least in the Texas Senate, that something has to change.

MORE: Thanks to the Legislative Budget Board for posting their presentation to the committee here.

Jailing the mentally ill

From the Hogg Foundation, see a Houston Chronicle column (Jan. 18) titled, "Texas, stop treating mental illness like it's a crime."

Without question, some people with mental illness need to be incarcerated. But for low-level nonviolent offenders, we should look to measures that can divert people from jails and into community-based mental health treatment programs.

The sequential-intercept model is a good example and highlights how this process of diversion can happen at every point along the criminal justice continuum - from the moment the 911 call is placed all the way to re-entry into the community after incarceration.

What's required are common-sense reforms such as targeted training for police and 911 dispatchers, screening for behavioral health conditions at the early stages of the process, and improved coordination between the justice system and social service agencies. For example, re-entry peer support, in which a recently released person is paired with a trained mentor who's been through the same experience, has been tested in Pennsylvania with promising results. The Texas Legislature approved up to $1 million in funding last session for two pilot sites. Scaling of such a program, if the pilots prove successful, could make an enormous difference.

Another good example is the improved protocol for 911 dispatchers in Houston, which requires that all callers be asked if their call involves a mental-health issue. Callers who say yes are routed to special crisis counselors who work out of the police department and can often deal appropriately with a situation without even bringing law enforcement into it.

We should take these kinds of steps because it's not only the right thing to do, the time is right. The evidence base for diversion programs has matured to the point where we can have confidence that the money will be well-spent. Law enforcement officials across the country support such measures. And advocates, experts and policymakers are recognizing that systemic change is needed to address systemic problems. It's time for more Texas lawmakers to get on board. 

Meanwhile, the SA Express News published a column (Jan. 22) by Sheriff Susan Parmerleau touting Bexar County's much-admired mental health diversion program, which has garnered national praise and generated impressive results:

The results have been remarkable. In 2009, the 15 deputies assigned to our mental health unit received crisis intervention training, which teaches them how to recognize someone in a mental health crisis and how to de-escalate the situation. Prior to 2009, our mental health deputies had to use physical force, on average, 50 times a year taking those with mental health issues into custody. Since that time, in more than six years, force has only had to be used three times. The difference between 300 times and three times is dramatic.

Since this program was started, more than 20,000 people with serious mental illness have been identified and diverted from jail into treatment. And the program has contributed significantly to resolving the problem of overcrowding in the jail.

Bexar County’s improvements in responding to people in crisis have also led to significant savings by reducing incarceration and emergency room use. In the past five years, the jail diversion program has saved Bexar County more than $50 million. This has been achieved through wise investments in community mental health services, and hiring more professionals to provide treatment. It has also succeeded by focusing resources on rehabilitation, housing and employment assistance. ...

Jails have become de facto mental institutions, and that has to change. As we work together as a community, we can provide those with mental illness the help they need. Those suffering with mental illness need treatment programs, not jail cells.

Finally, UT-Austin academic William Kelly offered up an interesting critique of the mens rea debate going on at the federal level, arguing that the real mens rea issues in the criminal justice system relate to mental illness:

Today, 40 percent of individuals in the U.S. criminal justice system (federal and state) have a diagnosable mental illness. Sixty percent of inmates in the nation’s prisons have experienced at least one traumatic brain injury. Nearly 80 percent of justice-involved individuals have a substance abuse problem.  The prevalence in the justice system of individuals with intellectual disabilities is three to five times what it is in the general population. There are substantial numbers of individuals in the justice system with neurodevelopmental and neurocognitive deficits and impairments.

Moreover, there’s overwhelming evidence that many individuals with mental illness, addiction, neurodevelopmental deficiencies, and intellectual deficits lack the ability to form intent as it is defined in the law.  How many lack this ability we don’t really know, because we rarely inquire about intent. But the statistics cited above should raise serious questions about how we go about the business of criminal justice in the U.S.

In the vast majority of state and federal criminal convictions, the government rarely is required to prove intent. That’s because the vast majority of criminal indictments (roughly 95 percent) are resolved through a plea agreement.  If the offender agrees to the terms of the agreement, it’s essentially a done deal. That puts prosecutors in charge of sorting out who is criminally responsible and who is not. At the end of the day, the vast majority are held responsible.

Mens rea is supposed to serve as a gatekeeper at the front door of the justice system, separating innocent from criminal behavior. The reality is that criminal intent is just not much of an issue under current criminal procedure. That in turn has significantly contributed to our incarceration problem by facilitating the punishment of more and more individuals.

It has also contributed to our recidivism problem.

When we punish mentally ill, addicted, intellectually disadvantaged and/or neurocognitively impaired individuals, we tend to return them to the free world in worse shape than when they came in. This is simply more grease for the revolving door.

Court of Criminal Appeals judges call out colleagues for judicial activism on TX junk science writ

Court of Criminal Appeals Judge Elsa Alcala sounds hopping mad. She lambasted several of her fellow jurists on Texas' high criminal court for an extreme brand of judicial activism which "will, for a very long time, leave an indelible stain on this Court's reputation for providing a fair forum for all litigants." The Rick-Perry appointee chastised her colleagues in no uncertain terms: "This Court's judicial decisions should not give the appearance of indecision or manipulation for the achievement of a desired result." Ouch!

Judge David Newell wasn't quite as harsh, but still scolded his colleagues for their outcome-oriented judicial approach: "We are not empowered to substitute what we believe is right or fair for what the Legislature has written, even if the statute seems unwise or unfair,"  he insisted. "Our job is to do our best to discover the Legislature's intent, not substitute our policy preferences for the will of the people as expressed through their elected representatives."

Judge Bert Richardson offered a concurrence, joined by Cheryl Johnson, declaring he is "baffled by the decision made by the court today."

The topic: Texas' "junk science writ," first passed in 2013 and amended in 2015 by the Legislature to codify the CCA's interpretation of the new statute on first impression. Unfortunately, three of the judges responsible for that first impression have since left the court, leaving a majority of judges who did not agree with either the court's precedent or the Legislature's codification of that ruling.

Rather than interpret Ex Parte Neal Hampton Robbins under the new statute passed last year, the court ruled that the motion for rehearing was "improvidently granted," thus allowing case law to revert to the 2013 statute before it was amended. But Alacala found that move disingenuous, calling out Judges Sharon Keller, Barbara Hervey, and Michael Keasler by name in a rare display of overt judicial acrimony:

The three dissenting judges in Robbins II maintain their former dissenting opinions that relief should not have been granted to applicants under the 2013 statute, but they now appear to vote in a manner that has the effect of granting relief to applicant. Though their vote ends up at the right place in that the correct result occurs, it is a day late and a dollar short. Or, rather, it is about a year or more late and it is significantly short because the dissenters in Robbins II appear to maintain their view that similarly situated defendants are not entitled to habeas relief under the new-science statute. What is going on here? I do not envy the position of future litigants who must try to decipher this Court's position on when relief is warranted under the new-science statute. Because of the strategic maneuvering that has plagued this case now for more than a year, the answer to that question is entirely unclear. 

So bottom line, Neal Robbins gets relief but the court did so in a way that does not extend the same protection to others. As Judge Newell opined, though, that's "a decision that the Legislature gets to make, not this Court." And it leaves the law surrounding the topic tenuous and unsettled.

Finally, for any tea leaf readers out there, though Judge Kevin Yeary was silent in this exchange, the vote patterns described indicate that he sided in this debate with Keller, Hervey and Keasler, providing further evidence that he's voting fairly consistently with the faction of the court which reflexively rules for the government in nearly every case. It's early in his tenure, yet, but so far your correspondent is not encouraged.

To understand the history and politics of the case, read Alcala's opinion. To understand the underlying legalities, read Richardson's. And for a conservative advocate for judicial restraint who seemed genuinely puzzled why his Republican colleagues would ignore the law and substitute their own views for the Legislature's, read David Newell's offering.

MORE: See initial coverage from the Texas Tribune.

See prior, related Grits posts:

• Abbott signs bill codifying broad reading of Texas' junk science writ
• Difficult to read tea leaves from oral argument on junk science writ
• Previewing oral arguments on Texas' junk science writ
• Podcast: Tweaking Texas' junk science habeas writ
• Habeas matters: Appointing counsel, codifying Robbins
• CCA: Junk science writ covers bad scientists as well as bad science

EFF: License plate readers shift traffic enforcement priorities to debt collection

The Electronic Frontier Foundation yesterday offered Grits an "I told you so" regarding legislation passed last year allowing Texas cops to become debt collectors, accepting credit cards for traffic ticket debt at traffic stops. I'd much rather have been wrong.

Grits had suggested that Rep. Allen Fletcher's HB 121, combined with automatic license plate reader technology, could allow police to “cherry pick drivers with outstanding warrants instead of looking for current, real-time traffic violations.”

Wrote EFF's Dave Maass (formerly of the San Antonio Current):

As it turns out, contracts between between Vigilant and Guadalupe County and the City of Kyle in Texas reveal that Henson was right to worry.

The “warrant redemption” program works like this. The agency gets no-cost license plate readers as well as free access to LEARN-NVLS, the ALPR data system Vigilant says contains more than 2.8-billion plate scans and is growing by more than 70 million scans a month. This also includes a wide variety of analytical and predictive software tools.

The government agency in turn gives Vigilant access to information about all its outstanding court fees, which the company then turns into a hot list to feed into the free ALPR systems. As police cars patrol the city, they ping on license plates associated with the fees. The officer then pulls the driver over and offers them a devil’s bargain: go to jail, or pay the original fine with an extra 25% processing fee tacked on, all of which goes to Vigilant.1 In other words, the driver is paying Vigilant to provide the local police with the technology used to identify and then detain the driver. If the ALPR pings on a parked car, the officer can get out and leave a note to visit Vigilant’s payment website.

But Vigilant isn’t just compensated with motorists’ cash. The law enforcement agencies are also using the privacy of everyday drivers as currency.

 

From Vigilant Solutions contract with City of Kyle

Buried in the fine print of the contract with Vigilant is a clause that says the company also get to keep a copy of all the license-plate data collected by the agency, even after the contract ends. According the company's usage and privacy policy, Vigilant “retains LPR data as long as it has commercial value.” Vigilant can sell or license that information to other law enforcement bodies, and potentially private companies such as insurance firms and repossession agencies.

In early December 2015, Vigilant issued a press release bragging that Guadalupe County had used the systems to collect on more than 4,500 warrants between April and December 2015. In January 2016, the City of Kyle signed an identical deal with Vigilant. Soon after, Guadalupe County upgraded the contract to allow Vigilant to dispatch its own contractors to collect on capias warrants.

So really, I wasn't cynical enough. Grits certainly didn't anticipate that license plate reader vendors would give away their systems in exchange for a 25 percent surcharge. EFF concluded that:

the system raises a whole host of problems:

• It turns police into debt collectors, who have to keep swiping credit cards to keep the free equipment.
• It turns police into data miners, who use the privacy of local drivers as currency.
• It not-so-subtly shifts police priorities from responding to calls and traffic violations to responding to a computer’s instructions.
• Policy makers and the public are unable to effectively evaluate the technology since the contract prohibits police from speaking honestly and openly about the program.
• The model relies on debt: there’s no incentive for criminal justice leaders to work with the community to reduce the number of capias warrants, since that could result in losing the equipment.
• People who have committed no crimes whatsoever have their driving patterns uploaded into a private system and no opportunity to control or watchdog how that data is disseminated. 

There was a time where companies like Vigilant marketed ALPR technology as a way to save kidnapped children, recover stolen cars, and catch violent criminals. But as we’ve long warned, ALPRs in fact are being deployed for far more questionable practices.

The Texas public should be outraged at the terrible deals their representatives are signing with this particular surveillance contractor, and the legislature should reexamine the unintended consequences of the law they passed last year.

RELATED: Bud Kennedy at the Star-Telegram offered up a column criticizing the shift in priorities:

Lawmakers originally said the system would save officers time — true — but justice reformers were concerned that collections would become the focus over traffic patrol.

EFF warned that “To Protect and Serve” would become “To Stop and Swipe.”

Read more here: http://www.star-telegram.com/opinion/opn-columns-blogs/bud-kennedy/article56747488.html#storylink=cpy

Push to scale back pretrial detention on deck for 2017

Ross Ramsey at the Texas Tribune published a good summary of State Sen. John Whitmire's keynote speech at a University of Houston law school symposium last week on "Police, Jails, and Vulnerable People." The Senate Criminal Justice Committee Chairman declared, “My highest priority next year [at the Legislature] is going to be pretrial release.” Explained Ramsey, "What’s he talking about? Three-quarters of the people in jail in Houston right now haven’t been tried; he and others think a lot of them should be at home. Or working." For Ramsey:

One thing that stuck out was the number of people who are in jail waiting for something to happen. Some are dangerous and belong in custody. But many are there because the system isn’t set up to send them home until it’s time for their trials.

Money is a problem. In the Sandra Bland case that served as a sort of anchor for the conference, a woman was found hanged in a jail, and her death was ruled a suicide. But she arguably shouldn’t have been arrested in the first place. She couldn’t get out because her bail was set too high for her to pay her way out. In Bland’s case, that was a $5,000 bond; it would have cost her about $500 to get out, but she could not get the money.

That might not sound like enough money to create an obstacle. It is, but policymakers often have to have it pointed out to them. “I have a hard time telling my colleagues what $1,000 is,” Whitmire said. He said he had recently turned down a request from lobbyists for the bail bond industry, telling them he doesn’t want to meet with them until they’re ready to talk about reforms.

Whitmire brashly declared he didn't know whether pretrial reform could pass, but "I wouldn't bet against me." Me either!

At the same event, which your correspondent attended, Ramsey moderated a panel with two Rs and two Ds - Sen. Konni Burton and Rep. James White on the R side, Reps Gene Wu and Garnet Coleman for the Ds - but even during the discussion he seemed surprised to find "relatively few disagreements." All four indicated that moderate, business-oriented Republicans were the main barrier to more significant criminal-justice reform: Most Democrats and movement conservatives are already on board, they agreed.

TX jail inspections could bump up to twice per year

Our pal Eva Ruth Moravec has a story up over at Quorum Report on jail suicides which opened:

An unexpected, sudden rise in suicides at county jails in a year that saw a record number of them – including the high-profile death of Sandra Bland in a Waller County lockup – has officials and experts in Texas scratching their heads.

Thirty-three people committed suicide in a Texas county jail in 2015, according to the Texas Commission on Jail Standards. Records kept since 2010 show the number of suicides in previous years was between 19 and 26 in jails where about 1 million people are held every year. Since the fiscal year ended, commission Executive Director Brandon Wood said there have been another 10 suicides.

We also get a little backstory as to how the jail intake form became the main focus of regulatory reform:

Well before Bland's death, TCJS knew there were problems with its intake form, thanks in part to Diana Claitor, executive director of the Texas Jail Project. After analyzing reports on jails found out of compliance between 2010 and 2013, Claitor found that failing to properly screen inmates resulted in more demerits than anything else.

"We set up these things, but people have to have a will, and they have to be trained to make it important enough to do something with," Claitor said. "There's been discussions over the inadequacies of this form for a while, so it's a strong strategy to try to change this."

That's encouraging. Grits has been concerned that TCJS and state officials have focused nearly exclusively on improving this form as a solution, even though clearly it's not an end unto itself. So I"m glad to learn Brandon Wood was reacting to an issue advocates had identified as a problem. Without that bit of information, it seemed odd for TCJS to hype this change so hard. That it was a known problem advocates were already trying to change makes much more sense (to me) of his response.

Moravec reported on another possible reform which would have to be mandated by the Legislature:

The committees chaired by Whitmire and Coleman both are tasked with addressing jail safety and standards during the interim, and are actively brainstorming. Wood said he's been instructed by both bodies to work into his next budget requests for enough officers to inspect county jails twice a year, instead of just once.

[Former TCJS chief Adan] Munoz said increasing inspections will "keep jails on their toes and keep them from falsifying records. If you have more inspectors to do more routine surprise inspections, you'll have everyone ready 24/7." 

That would be a big change. Notably, the suggestion to double the number of state inspections comes at a time when the Harris County Sheriff just slashed the number of jail standards compliance officers in half at the state's largest county jail.

Assessing police use of force policies

Austin, Houston and San Antonio figure into a chart from the national Black Lives Matter campaign's new police use of force project, with Houston PD's use of force policy faring particularly badly by their analysis.They based their analysis on four criteria:

1. Failing to make life preservation the primary principle shaping police decisions about using force
2. Failing to require officers to de-escalate situations, where possible, by communicating with subjects, maintaining distance, and otherwise eliminating the need to use force
3. Allowing officers to choke or strangle civilians, in many cases where less lethal force could be used instead, resulting in the unnecessary death or serious injury of civilians
4. Failing to require officers to intervene and stop excessive force used by other officers and report these incidents immediately to a supervisor.
   

And here's the chart assessing use of force policies on those grounds:

Private prisons tip of iceberg in profit-based corrections

While a great deal of attention is paid and criticism is devoted to private prisons, the truth about profit-based corrections remains more pernicious. As these infographics from In the Public Interest depict, private companies profit from almost every function of the American criminal justice system:

'See no evil, hear no evil' at Harris County jail

Harris County Sheriff Ron Hickman nearly halved the number of employees focused on compliance with jail standards despite critical, well-documented problems with jail safety issues. Reported the Houston Chronicle (Jan. 12):

The sheriff downsized from 15 to eight the staff that conducts in-house reviews of the jail's compliance with state regulations for living standards. Hickman also disbanded the unit that proactively examines internal affairs matters in the department, opting instead for what he called a "reactive" team.

I guess it's easy to pretend problems don't exist if you fire the staff assigned to look for them. "See no evil, hear no evil" should be the department's new motto.

MORE: The Houston Chronicle, while not mentioning this post, followed up Jan. 24 with a full-blown article elaborating on this change and quoting critics decrying it. They reported that Sheriff Hickman:

reduced the jail's Compliance & Inspections Unit from 15 to eight members, transferring inspectors to other assignments. Inspectors in that unit were the first to discover the neglect of jailed mentally ill inmate Terry Goodwin in 2013. The inmate spent weeks without leaving an isolation cell littered with empty food containers, human waste and insects. His family negotiated a $400,000 settlement with the county.

Without these inspectors, would the Goodwin case ever have been discovered?

We also get a little more backstory on the policy Hickman is changing:

Former Sheriff Garcia abandoned the process of having jail supervisors screen inmate complaints in 2014.

Department statistics show that between 2009 and 2013, when jail supervisors screened grievances of jail abuse before deciding which to refer to internal affairs investigators, only about 88 cases were sent up for review. But in 2014, when Garcia implemented a policy that required an internal affairs division review of all inmate grievances, the number of referrals rose to 236. The number of complaints sustained by internal affairs also increased slightly. The Chronicle's review of jailhouse disciplinary actions showed that investigations of allegations of jailer misconduct took an average of eight months to complete.

Gonzales said the changes are part of Hickman's department-wide effort to upgrade procedures and improve technology.

He said the changes will include an $877,000 installation of upgraded surveillance cameras in the 1200 Baker Street jail, which currently cannot archive any video footage. Video footage, which is available in another jail building, has been key in several misconduct reviews, records show. Those upgrades, records show, began under Garcia.

The department also is testing a pilot system of electronic monitors to confirm jailers actually visited cells for state-required checks of inmates, and biometric technologies are also being explored. Falsified cell checks have been detected in department reviews of inmate neglect and of misconduct linked to inmate suicides.

With all the problems at the jail, this should be a general election campaign issue for the Democratic nominee. It's exactly the opposite of what a responsible manager should be doing given the jail's recent history.

Thompson on forensic flaws and Harris County pretrial detention

Last week, I sat down with Grits' contributing writer Sandra Guerra Thompson to discuss her new book on forensics, Cops in Lab Coats, as well as an event being held at the University of Houston on Friday related to "Police, Jails, and Vulnerable Populations."

You can listen to the podcast here:



Or find a transcript of the full interview below the jump.

Koch counsel lays out conservative agenda on justice reform

A Marshall Project interview with Koch Industries general counsel Mark Holden lays out a conservative agenda for criminal justice reform, summarized thusly:

The fundamental problem with our current criminal justice system is that it is a two-tier system. The wealthy and connected experience dramatically better treatment than the poor, and guilt and innocence are often irrelevant. That is immoral, constitutionally dubious, and fiscally ruinous. We spend more than $250 billion per year on our entire criminal justice system, including over $80 billion a year on incarceration, which is three to four times more than we spend per capita on public primary and secondary education.

As Harvard Professor Bruce Western has noted, the current system creates barriers to opportunity for the least advantaged and has produced a “poverty trap” — a cycle of poverty, despair, and incarceration “at the very bottom of American society.” One extremely troubling example of this is that experts and commentators, including Judge Alex Kozinski and Judge Jed Rakoff, have observed that innocent people now plead guilty to crimes they did not commit. None us can or should be comfortable with that.

Another fundamental problem is that since the start of the War on Drugs, there has been a dramatic shift in the balance of power in our system away from judges to prosecutors. For instance, we aren’t sure how many federal criminal laws there are, but estimates are that there are somewhere between 4,500 and 6,000. Given this explosion in the number of statutory crimes, the advent of mandatory minimum sentences, and the prosecutor’s control of the grand jury process, prosecutors now have too much power and have, in many instances, become prosecutor, judge, jury, and executioner.

We also need to fix our indigent defense programs so that the promise of Gideon v. Wainwright and the 6th Amendment right to counsel are a reality for all defendants whenever they are charged with a crime that could lead to loss of liberty, including misdemeanors. In addition, we need to allow judges to make determinations based on the facts of the crime and the individual before them to ensure that the punishment fits the crime. We should reject the labels “soft on crime” and “tough on crime,” and instead be smart on crime and soft on taxpayers. For those who are incarcerated, especially non-violent offenders, the prison experience should be about reform, rehabilitation, and redemption rather than revenge, reprisal, and retribution.

And finally, we need to reform how we allow individuals to reenter society after serving their sentences. Currently, there are tens of thousands of government-imposed restrictions on ex-offenders that limit their ability to get a meaningful job, housing, student or business loans, credit cards, and vote. We make it difficult for people to turn their lives around once they have a brush with the law. This creates hardships for the ex-offenders and their families, and leads to the increased human and societal costs of recidivism and reincarceration.

Quite a few Texas conservatives have already been moving in this direction. Grits' hope is that Koch's involvement will help open up a safe political space for more of their right-wing allies to join them.

Linklater on Bernie

On the TribTalk site, filmmaker Richard Linklater authored an earnest and revealing account of how he came to make the movie "Bernie," his relationship with its central subject, Bernie Tiede ("a nice guy who did a bad thing"), and his involvement in the murderer's legal case. Go read it. A summary won't do it justice, it's quite well written, and many of his observations apply beyond beyond the bounds of this particular episode.

TX law enforcement misconduct roundup

In an effort to clear Grits' browser tabs, here are links a number of police accountability episodes reported around the state recently which merit readers' attention:

• An SAPD officer took a plea deal for stealing pot, money, guns from drug dealer while on duty.
• A Houston PD officer pled guilty to assisting thieves with an armored car robbery in 2013.
• Another Houston PD officer stands accused of working for the Los Zetas drug cartel.
• A Victoria Sheriff's deputy pled guilty to official oppression after using excessive force against a motorist. Charges of record tampering and perjury were dismissed, though he'd admitted to the former.
• A new lawsuit accuses Caldwell County Sheriff's deputies of excessive force in an event caught on video.
• A former Wise County Sheriff's deputy who was the department's liaison to sex offender was convicted and sent to federal prison or 16 months after subjecting them to nude photographs.
• An Austin cop was suspended for 90 days for unwarranted use of his Taser against a homeless man. The event was caught on video.
• A former Cameron County Sheriff's deputy was sentenced to a year in federal prison for transporting immigrants into the country illegally.
• A Bexar County detention officer is facing termination and criminal charges over allegations that he sexually assaulted a female inmate.

Dissatisfied with TDCJ, documenting danger, reforming ad seg, and other stories

Here are a few odds and ends which may interest Grits readers:

Exporting First Amendment fight
Folks convicted of the ruled-unconstitutional offense of online solicitation of a minor are starting to be released, with seven cut loose from prison last week. Mark Bennett, the Houston attorney who's been attacking these statutes on First Amendment grounds, offered a new year's resolution to take the fight to other states.

Dissatisfied with TDCJ
I'd not looked at results from TDCJ's 2014 "customer satisfaction survey" which interviewed county officials and offender advocate groups. Half of respondents expressed dissatisfaction with the agency's services. The main complaints were:

• the customer not believing the agency will address a complaint 
• the customer not receiving the information they were looking for in a timely manner 
• the customer not receiving clear explanation about services available 

Sounds about right.

Documenting danger: 2015 an historically safe year for cops
Given that 2015 was one of the safest years for police in the United States since the 19th century,  perhaps we can scale back the "dangerous year" for police rhetoric. The 39 U.S. officers killed feloniously were tragedies, as were the 90+ unarmed people shot by cops. In truth, whether you're talking about good cops or bad, the fatal flaw in these 2015 debates was generalization based on anecdote. That's one of the reasons Grits is excited about Amanda Woog compiling data from Texas police shooting reports newly mandated last year by the Legislature: It'll be nice to have actual data on the topic.

Improving solitary confinement standards
AP had a story over the weekend on the national push to reform solitary confinement, which in Texas prisons is known as administrative segregation (or more commonly, just "ad seg"). The American Correctional Association recently released proposed new standards "from mandatory health care visits and mental illness treatment for inmates in segregation to more time out of cells for recreation and education." ACA "will take testimony on new, more lenient solitary standards at its national conference in New Orleans beginning Friday, with final ratification expected by August." MORE: In a report from September, the Association of State Correctional Administrators called prolonged isolation a "grave problem." See a new set of essays from the Yale Law Journal in response. AND MORE: From the Marshall Project, "How to get out of solitary confinement one step at a time." RELATED: Next month there will be two showings in Austin of a nationally recognized play related to solitary confinement - Mariposa and the Saint - hosted by the Prison Justice League. One will be at Salvage Vanguard Theater, the other at Parker Lane Methodist Church. See a review from the New Yorker.

The other refugees
Grits found the debates over letting Syrian refugees into Texas disingenuous and off-point given the very real problem we face - and which America is handling badly - related to Central American refugees fleeing violence in Guatemala, El Salvador and Honduras. Despite all the self-deportation rhetoric one hears from the nativist faction, making life tougher for these folks won't stop the flow of people coming here: “It’s hard to out-ugly what is happening in Central America, no matter what we do to them,” noted one observer.

Whitmire: Sandra Bland death demonstrates need for bail reform

Quorum Report has a story up titled, "Bail bond reform may be a lasting legacy of Sandra Bland's death," in which Senate Criminal Justice Committee Chairman John Whitmire predicted the 85th Texas Legislature will zero in on an unfair bail system and needless pretrial detention. Reported QR:

Many put blame for Bland’s death on her inability to quickly find the $500 for her bond, extending her stay in the county jail into the following week, when she took her life. What Sen. John Whitmire, D-Houston, sees is a woman charged with a traffic stop who should have been in and out of the county jail within 18 hours of being booked.

“She was offered a bond. She needed $500 to get out,” Whitmire told an audience at a Texas Public Policy Foundation conference last week. “When she saw the magistrate, she was not able to come up with the $500. They could verify she had a new job at Prairie View A&M. They could verify she had a local address. It would have served them well to offer her a PR bond and let her go on with her life, and then all of our lives would have been different.”

A “PR” bond is a personal recognizance bond, one that bypasses bail and relies on a defendant’s signature as a promise to return to face charges on a court date. It is usually offered to low-level non-violent offenders who do not pose a flight risk.

In the case of Harris County, 60 percent of those in jail fall into that category, yet magistrates offer a fraction of defendants PR bonds as an option, Whitmire said. Such a decision can often be heartless for people who are living from paycheck to paycheck. The cost of bail ends up outweighing the price of the crime.

“Some people couldn’t raise $1,000 to save their lives,” Whitmire said of bail bonds. “We need to get them in and get them out and save the resources for the really bad people. I think that really should be our priority.”

More than half the people sitting in the Harris County Jail today are awaiting a trial, rather than completing a sentence, Whitmire said. The system would be better served if they were released in order to get back to work to pay court fines.

This is welcome news. Chairman Whitmire knows how to pass his bills and is one of the strongest champions this issue could hope for in the legislature's upper chamber. His support won't guarantee bail reform will pass, but it cannot happen without him.

RELATED:

• Bail reform promoted in wake of Sandra Bland tragedy
• Learning from Sandra Bland: First thoughts

Texas jail deaths continue despite 'zero tolerance'

Our friends at the Texas Jail Project have been busy lately. Last week, Emily Ling and Rebecca Larsen published an op ed in the Houston Chronicle titled, "Stop jail suicides and deaths: Here's how."

They begin by quoting Senate Criminal Justice Committee Chairman John Whitmire from a hearing in September declaring he would "have zero tolerance for jail suicides and deaths."

And yet since the hearing on Sept. 22, there have been at least 13 more deaths in Texas county jails, seven of which are apparent suicides.

In reviewing the recent deaths, several issues stand out.

First, seven of the deaths in recent months have come from just three counties - Webb, McLennan and Fort Bend. The Texas Commission on Jail Standards found McLennan and Fort Bend to be out of compliance with minimum jail standards.

Those findings came only after inspections prompted by people dying. Webb County has yet to be found out-of-compliance with any state standards, despite the fact that three people died in the jail in the month of November alone.

Increased scrutiny has also revealed systemic disregard of safety by jail staff. Last month, following the suicide of Michael Angelo Martinez, three McLennan County correctional officers were arrested for falsifying records after an inspection revealed they tried to hide their failure to make mandated checks on those in their care.

Jailers must be trained and required to prioritize safe and humane care.

Additionally, all but one of the 13 people who died in county jails had not yet been convicted; they were awaiting the disposition of their cases.

On average, more than 60 percent of people in county jails are in a pretrial status, many in custody for court hearings simply because they cannot afford to post bail.

In related news, on Facebook, Emily Ling posted these data for 2015 jail deaths in Texas:

2015 Inmate Deaths in Texas County Jails:

1. Harris County - 16 deaths
2. Travis County - 8 deaths
3. Bexar County - 7 deaths
4. Dallas County - 5 deaths

Brazos, Fort Bend, Liberty, Webb, & Williamson Counties all had 3 people die in each of their jails within this past year.

Bowie, Comal, El Paso, Nueces, Walker, & Wharton Counties all had 2 people die in each of their jails.

And another 28 county jails had at least 1 inmate die in their custody, including the death of ‪#‎SandraBland‬ in Waller County Jail.

In total we know at least 99 people died this past year while in the custody of a Texas county jail. The majority of them had not been convicted of any crime. But there is no guarantee that "innocent until proven guilty" doesn't mean you won't lose your life in our criminal justice system. The Texas Jail Project is working to change that.

CCA proposes rules amendments to one-sided habeas process

The Texas Court of Criminal Appeals last month solicited public comments on new rules governing habeas corpus filings and witness statements, among other things. See here. For those who have an interest, your deadline for public comment is January 31st.

Although this was already part of the existing rules of appellate procedure, this tidbit jumped out at me. The State can file a motion for rehearing when they lose at the CCA on a habeas corpus writ, but writ-filers may not:

"A motion for rehearing an order that denies habeas corpus relief or dismisses a habeas corpus  application under Code of Criminal Procedure, articles 11.07 or 11.071, may not be filed," reads the rule. By contrast, the state may file a motion for rehearing if it is grounded on specific "substantial intervening circumstances or on other significant circumstances."  

In some sense, Grits understands this. Mostly pro se writ petitioners would have little incentive not to file motions for rehearing and the volume of pro se writs already is crushing the court. Grits believes the process would be much improved if, in the interests of justice and judicial economy, the state provided public-defender services for prisoners' habeas writs so they were more on point legally and less repetitive and fruitless as a practical matter. That's a topic for another day.

But the plain lopsidedness of allowing the state to seek rehearing - as, for example, prosecutors did in the Ex Parte Robbins case interpreting Texas' new junk science writ - but not allowing writ petitioners sitting in prison a similar second bite at the apple, for example, if membership on the court changes after a close decision, smacks of unfairness. For a court whose presiding judge once ran on a "pro prosecution" platform, it's a bit jarring to see that opportunity so expressly cabined to government and denied to the individual.

Notably, even capital defendants (CCP 11.071) are denied motions for rehearing, though if pigs fly that day and they win at the CCA, the state can ask the court to reconsider it.

Meanwhile, regarding implementation of the Michael Morton Act, the court clarified that the rule requiring witness statements to be turned over at trial after they testify does not preclude prosecutors' responsibility to comply with the Michael Morton Act. Their comment seemed like a workaday interpretation to this non-lawyer, but it clarified that Michael Morton Act obligations regarding witness statements, which by definition include grand jury testimony (!), must be fulfilled before trial, not punted until after a witness testifies.

Grits may disagree with various CCA judges on various issues, but it seems to this non-lawyer observer like all of them have embraced the Michael Morton Act to a greater degree than I ever expected. Good for them.

The Court also set a public hearing on April 5 in Austin regarding electronic filings in criminal cases.

Blood draw vote casts light on CCA Fourth Amendment divisions

Grits earlier examined the Texas Court of Criminal Appeals' recent Fourth Amendment jurisprudence for patterns and trends ("Divided Court of Criminal Appeals in flux"), and a commenter suggested the opinions in State v. Villareal, in which the CCA narrowly required warrants for police to perform blood draws in routine DWI cases, might usefully contribute to that discussion. The CCA denied a motion for rehearing last month, essentially settling the legal issue. The press has recently begun to take note.

The vote patterns, though, fall roughly along the lines of the Fourth Amendment sniffer-dog case Grits discussed earlier, with two of the new members (Newell and Richardson) insisting on upholding the Fourth Amendment and one (Yeary) aligning with Keller, Hervey, and Keasler on the side of maximizing state power.

This case had originally been decided 5-4 in 2014, but three of the five judges in the majority left the court during the last election cycle and were replaced. Soon thereafter, prosecutors sought rehearing by the new batch of judges.

Once again they were rebuffed, barely. Keasler and Yeary filed dissents, Newell and Richardson wrote concurrences, and Meyers wrote a concurrence explaining why he flipped his vote from the last time the case was heard. For those interested in the meat of the issue, those discussions are fascinating and well worth the read.

In the end, though, the court's decision was fairly routine and pro forma from Grits' non-lawyerly perspective. The issue, as it is so often with Keller and Co., was whether the court would thumb its nose at the US Supreme Court or comply with its clear dicta.

For the time being, the CCA's sometimes-open rebellion against SCOTUS is being squelched on Fourth Amendment questions. But the margin remains narrow and, with two judges in the Villareal rehearing majority leaving the court next year, there's a risk the maximize-state-power faction could once again find itself in ascendance after the next election cycle.

Considering tech solutions on jail safety

As jailers across Texas and policymakers at the capitol consider new means to prevent jail suicides, our friend Diana Claitor from the Texas Jail Project pointed out to me that new electronic guard check systems are being created for tracking inmate welfare checks by jailers. In California, according to this article, such systems were installed to reduce high suicide rates in state prisons:

In a bid to curtail inmate suicides, the California Department of Corrections and Rehabilitation has deployed an electronic tracking system that prison guards must use to carry out welfare checks at 33 institutions.

The Inmate Welfare Check System (IWCS) is designed to more accurately record the time and location of all welfare checks of inmates housed in the Administrative Segregation Unit.

"CDCR will be able to capture accurate, real-time data when conducting welfare checks of inmates, Joe Panora, the director of Enterprise Information Services wrote in an Oct. 15 CDCR blog post.

The system will allow the department to "increase our efficiency and overall effectiveness providing sound reportable data, while adhering to court mandates and reducing the percentage of inmate suicide attempts," Panora added.

Inmates in the ASU must be checked on at least three times an hour, at intervals not to exceed 30 minutes during the first three weeks.

The new system is composed of three parts: small devices called ibuttons installed at the front of each cell with a unique digital address; a Guard One Rounds Tracker "pipe," which reads the ibutton to record the time and location of the check; and a leather wallet that contains 12 ibuttons intended to correspond to an inmate’s current activity.

The system is simple to use. To record the welfare check, a guard touches the pipe to the ibutton on the front of the cell and then touches the pipe to the ibutton in the leather wallet to record an inmate’s activity.

At the end of each shift, an officer inserts the pipe into the Internet Protocol Downloader to securely transfer all of the time, location and activity data across LAN/WAN.

Diana wondered if this was "better than paper logs or just a high tech gadget doing exactly the same thing?" as well as "is it easy to manipulate?"

Certainly the system described above would be harder to manipulate than paper, since anyone can write down wrong information. Having to record each inmate's status from 12 options - in the example in the article - would mean they couldn't just hand the pipe to an inmate to walk through the dorm, someone would have to record information at each cell. That'd be hard to fake.

So that does seem superior to paper logs to me. That said, because there are many ways to set up such a system, I don't necessarily recommend the CA vendor over others - I don't know enough about the players in the market or their products. Conceptually, though, it makes a lot of sense.

Beyond documenting guard work, there are all sorts of ways one could imagine using Radio Frequency Identification Devices (RFIDs) or GPS tracking to improve security at prisons.

For that matter, there are sensors that conceivably could be used to further inmate safety, right down to in-cell heart and health monitoring. For example, Grits happens to be an amateur electronics hobbyist. Here's the list of sensors on sale at one of the online maker sites I use.

Anything a sensor can capture generates data you can measure, log, compare, analyze, etc..  So, for example, if the only way to commit suicide involves standing on the bed, you could put a pressure sensor in it so that, if the weight were above a certain number of pounds per square inch (standing instead of laying), it would call the guard, collapse the bed, or otherwise intervene to stop a suicide event. I'm brainstorming, but offer that example just to suggest that sensors could be used in all sorts of creative ways.

All this to say, I wouldn't spurn the idea out of hand that an array of new products and yet-to-be-invented electronic gizmos might improve prison and jail safety, even if early adopters may be penalized as prototypes are refined. There's an electronics revolution going on right now related to these sorts of sensor systems and the "Internet of Things," so it would be premature to dismiss the notion that its influence might productively seep into corrections.

Related: Wearable tech and the corrections market

Harris Co. judges balked at giving defendants representation at bail hearings

The other day Grits expressed skepticism at the sincerity of claims that Harris County officials would commit to a serious plan for reducing the jail population. Lisa Falkenberg at the Houston Chronicle offered an additional reason to think the Harris County plan lacks broad support.

Nearly everyone except the judges quoted in her story agreed with a plan to provide defendants with counsel at their bail hearing:

Whether charged with misdemeanors or felonies, the accused typically are hauled before a split-screen video monitor where a magistrate in another room determines whether to grant bail and how high to set it. The decision is based on the charge and criminal record, with little regard to actual risk or ability to pay.

A prosecutor is there but no defense attorney.

The practice violates constitutional rights to due process during a "critical stage of trial," and it needs to be changed, Harris County Public Defender Alex Bunin wrote last month in a memo, obtained through a Texas Public Information Act request.

Often, defendants have no idea what's going on at bail hearings, Bunin explained. Some are mentally ill. Some may try to speak and end up incriminating themselves. They sometimes seek legal advice from another defendant, from a deputy or any other warm body nearby. Then the magistrate decides whether the defendant will await trial in jail, whether a student will miss school, a single mom will lose her job or a father will be home to help take care of the kids.

"An adversarial system cannot function when only one side shows up," Bunin wrote to County Attorney Vince Ryan, proposing a pilot program to provide lawyers at bail hearings.

Ryan wrote back that he supported the pilot, as everyone should. It's not a novel concept. All of Harris County's large urban peers provide lawyers at bail hearings, including jurisdictions serving New York, Los Angeles and Chicago, Bunin wrote. Even New Orleans does it.

In a news conference last week, District Attorney Devon Anderson said she supports representation at bail hearings. It also was a priority for Harris County Commissioner El Franco Lee, who led the Criminal Justice Coordinating Council but died a week ago of a heart attack. His longtime colleague, Steve Radack, the committee's vice chair, told me Friday he was open to the idea and to finding money to do it.

In truth, it will save the county money to stop jailing people who don't need to be jailed. The current system, as I noted last week, is costing more than $380,000 per day. The council estimates, probably conservatively, that 1,800 inmates are unnecessarily jailed, including those charged with nonviolent felonies, misdemeanors and serious offenses who pose low and moderate risk.

Consider: among large U.S. cities, 25 percent of felony defendants are released without posting money at all, Bunin wrote in his memo. In Harris County, it's less than 2 percent.

"More common sense needs to be injected into the criminal justice system," Radack said.

Despite support from the DA and even from county commissioners who'd have to pay for the lawyers, the measure was removed from the plan submitted to the MacArthur foundation at the judges' request, scaling representation back to providing "lawyers only for mentally ill 'frequent detainee' defendants charged with misdemeanors."

Meanwhile, in the Houston Press, Grits contributing writer and U of H law prof Sandra Guerra Thompson's critiques of the bail system in Houston were featured prominently in an article by Meagan Flynn (who's been providing this issue good coverage lately).

“The question of having counsel at the bail hearings, first appearance, is a really important one,” Thompson said. “We have this crazy un-American system where people appear before a [magistrate] and there's a prosecutor but no defense lawyer. It's not consistent with the adversarial process we think of when we think of a fair judicial hearing. 

Whether someone has counsel at their bail hearing is:

the critical factor [regarding whether a defendant is released],” Thompson said. “It's the most important consideration in determining if a person stays in jail pending their proceedings or not. When you look at a group of people with a lawyer and a group without, the one with a lawyer is two-and-a-half times more likely to be released on a personal bond or have their bond lowered. The difference is dramatic.”

At a minimum, Harris County DA Devon Anderson is enthusiastically on board with the idea, to Grits' delight. The next news will come in a few weeks when a committee produces more specific recommendations.

“Let me say this about having a defender at probable cause court," [Anderson] began." I think it's a great idea—exactly what you're saying: somebody to advocate for a defendant to show a magistrate, 'This is why you can let this person out, and they're gonna be okay.' I think we need them for that reason, and I really think it provides a huge opportunity to expand diversion even more, where we can offer it right then in probable cause court because they would be represented by counsel. We're for it, and I have every hope we're going to get that up and running this year.”

While the supposed "culture change" may have an undetermined deadline, a committee currently studying how to best implement fair representation for all people at bail hearings may have to act much sooner. They're expected to have answers by March 1.

Writ Writer Resources

For my own purposes, Grits wanted to record links to several resources on writ writers and self-represented defendants I've recently run across:

• From the National Lawyers Guild and the Center for Constitutional Rights (2010): Jailhouse Lawyer's Handbook
• Columbia University Human Rights Law Review (2011): A Jailhouse Lawyer's Manual
• From the Texas Civil Rights Project and the ACLU of Texas (2011): Prisoners Civil Rights Manual
• Texas State Law Library: Introduction to Legal Research
• American Association of Law Libraries: How to research a legal problem: A guide for non-lawyers

Feel free to recommend related resources in the comments.

More on Texas police bodycam opacity

In her Quorum Report story on police bodycam transparency, mentioned here, Eva Ruth Moravec described how the Attorney General's office has been ruling on requests for bodycam footage:

Since the bill became law on Sept. 1, [Attorney General Ken] Paxton has used its criteria for requesting footage in ruling that body camera footage may be withheld in at least eight cases, based on a search of AG rulings.

In each case, the state told cities like Fort Worth, Freeport, Fisco, Lubbock, Pflugerville, DeSoto and College Station that the "requestor did not properly request the body worn camera recordings," so, "it need not be released."

The requestor may try again, the state advised – but in most of the cases, the state added that the request would have been denied anyway under the criminal investigation caveat.

West's office said he is monitoring the law's implementation and could focus next session on issues with open records and transparency.

There are two issues going on here, both of which require legislative resolution:

First, the closed records provisions in the bodycam bill itself were fatally flawed, establishing difficult barriers for requestors to access footage and creating sweeping exceptions for many police interactions. Grits has discussed these problems in depth.

But notice the final comment attributed to the AG: "in most of the cases, the state added that the request would have been denied anyway under the criminal investigation caveat."

That one gets less attention because the damage to transparency wasn't done last session but two decades ago in an episode which most folks - cops and reformers alike - have long forgotten, even if it comes up again and again in police accountability contexts.

In 1996, a case styled Holmes v. Morales - that would be former Harris County DA Johnny Holmes vs. former Texas AG Dan Morales - was decided by the Texas Supreme Court in a way that gutted a quarter century of Texas open records law. In particular, the Texas Supreme Court overturned a longstanding interpretation of the law from the Jim Mattox era to create a much more stifling standard for accessing police records.

The following session in 1997, instead of reinstituting our old standard - which ranked Texas, basically tied with Florida, as the most transparent state in the nation regarding law enforcement records - police unions and their employers combined in a successful campaign to convince the Legislature to codify the bad Texas Supreme Court ruling, permanently closing records which had been de rigeur for reporters and researchers to access throughout my own adult lifetime. (During this period Grits was a professional opposition researcher, so I routinely accessed these records and had a front-row seat for the day-and-night shift in transparency that occurred with this transition.)

As it turned out, this was the episode that convinced Grits, before there was Grits, to first begin going to the Legislature on criminal justice issues. There had been no reformers on the ground to fight closed records provisions in 1997 and so much was lost with that one bad bill, I decided in 1999 that it behooved me to begin showing up, at the time as a volunteer.

All this to say: As legislators consider opacity problems with the new bodycam legislation, there need to be two fixes: 1) the barriers to accessing footage in the new bill should be eliminated and 2) Section 552.108 of the Public Information Act,  which is the law enforcement exception, should be amended to codify the Mattox-era interpretation of the old open records act to restore Texas' status as a beacon of transparency on criminal justice which we'd enjoyed nationally since the 1970s. (State Rep. Harold Dutton has filed legislation on this score in years past, but it's never seemed to gain momentum.)

If we're going to take on these transparency issues, let's take on all of them. The bodycam legislation needs to be fixed, but that's hardly the only problem we face in Texas regarding closed police records.

15 states' governors 'grant frequent and regular pardons' but not Greg Abbott, yet

Regular readers know Grits remains frustrated at Gov. Greg Abbott's parsimonious pardon policy in his first year in office, in which he granted four clemency petitions for penny-ante in the run up to Christmas without even issuing a press release to highlight the governor's miserliness regarding mercy.

When he took office, Grits considered it notable that Abbott had never spoken publicly on the topic, and one year in it's clearly only barely on his radar screen, even though it's one of only a handful of core duties of the office. As Attorney General, his office had ruled the governor could issue posthumous pardons, but beyond that we know little of Abbott's opinions on clemency. No reporter has ever asked him, to my knowledge, or if they did they didn't publish the quotes.

As such, we have answers to only a few of the questions Grits offered up a year ago before Greg Abbott ascended to the governorship:

One also wonders as pardon season approaches about Greg Abbott and what his clemency policy will look like as governor. Rick Perry rejected two thirds of positive recommendations he received from his appointees on the Board of Pardons and Paroles. Will Greg Abbott approve them at higher rates? What instructions will he give BPP appointees on clemency? What questions related to clemency will his staff ask potential BPP appointees during the vetting process? Might he be willing to revisit clemency requests which were approved by the BPP but rejected or never acted upon by Rick Perry? Will Gov. Abbott treat clemency as an ongoing, year-round executive function or limit pardon announcements to a few, symbolic Christmas-time public relations gambits? Nobody ever asked the governor-elect any of these questions on the campaign trail so I guess we must wait and see.

Most of those questions remain unanswered, though Abbott ending the year with this niggardly batch of four under-the-radar pardons three days before Christmas doesn't bode well.

In this vein, Stateline has an interesting new article (1/6) titled, "Move Is On To Make End-Of-Year Pardons Less Random" which offered the following overview of state-level clemency:

Only 15 states, including Arkansas and California, grant frequent and regular pardons, to more than 30 percent of applicants, according to the Collateral Consequences Resource Center, a nonprofit that promotes public discussion of the lasting effects of conviction. The largest group — 21 states, including Kansas, Kentucky and Tennessee, as well as the District of Columbia —provided few or no pardons in the past 20 years. Nine states have a regular pardon process but grant clemency to just a small percentage of those who ask for it, and five states — Louisiana, Maine, New Mexico, Ohio and Wisconsin — grant pardons only infrequently, depending on the governor.

But several governors and state legislatures have moved in recent months to make the clemency process easier and pardons more frequent, reflecting a growing consensus that harsh mandatory minimum sentences have left too many Americans behind bars.

“I do see a wave of mercy rolling across the country,” said P.S. Ruckman Jr., who teaches political science and runs a clemency blog, pardonpower.com. “Over the last 10 years, governors erred on the side of caution, and did nothing” to grant clemency or pardons, Ruckman said. “Increasingly that mindset is changing.”

But not in Texas, at least not yet.

This could change. Abbott could direct the Board of Pardons and Paroles to be more aggressive about finding clemency candidates and choose future appointees with that goal partly in mind. (Rick Perry, by contrast, declined two-thirds of his own appointees' recommendations.) But it's easier and safer to do nothing, so that's the most likely outcome.

See prior, related Grits posts:

• Thanks for nothing, Greg Abbott: Why conservatives should demand 'industrial scale' clemency
• Pardon me, Governor Abbott, but what about your clemency policy?
• Innocence and clemency: An early test for Greg Abbott
• Pondering the Ghosts of Christmas Pardons Past, Present, and Future

Show me, don't tell me: Promises, good intentions won't cut it on reducing Harris County Jail population

Harris County officials are seeking a grant to reduce pretrial detention and say they'll implement the policies to do so whether or not they get the money. It all sounds good, except there's nothing in it we haven't heard before. And in the past, nothing really came to pass despite lots of lofty rhetoric and declared good intentions. From the Houston Chronicle ("Harris County officials outline plan to curb jail population," Jan. 7):

Chasing $4 million in grant money, Harris County officials Thursday announced reforms in the criminal justice system to unclog dockets, lower jail population and address racial and ethnic disparities.

And because the changes are so important, they said, they will do it even if they don't get the money.

"The pursuit of this grant has broken down the silos that we've been working in, independent of each other," District Attorney Devon Anderson said. "Whether we win this grant or not, we are going to do these things."

The changes mean two new dockets for violent offenders to get to trial faster, more treatment and services for addicts and the mentally ill, and diversion programs for mentally ill homeless people and low-level nonviolent suspects.

County Commissioner Steve Radack, Sheriff Ron Hickman, several judges and other criminal justice officials flanked Anderson as she outlined changes that reflect six months of field trips and data-driven research, all bankrolled by the MacArthur Foundation, one of the country's largest independent philanthropic organizations.

Last year, the foundation awarded Harris County $150,000 to study other jurisdictions and the county's processes.

Late Wednesday night, a little-known committee that began meeting monthly under the late County Commissioner El Franco Lee submitted the county's application for a grant that could mean $2 million a year for two years to put its plans into effect.

Some of Grits' sources had speculated the process might implode and Harris County might not even apply for the second stage of the two-part grant, so in that sense there's evidence of progress. And maybe if they got the grant, an external funding agency holding them accountable based on metrics conceivably could prod action where inertia has thwarted it time and time again in the past.

However none of the suggestions being contemplated are much different from what every study panel and consultant who's examined it has told Harris County since the turn of the century. It's just that judges refused to stop using bond schedules, preferring to use jail to maximize pressure on defendants to enter plea deals, without which they feared their dockets would swell. So if the judges don't cooperate, none of this works.

The hope is that judges will be able to use a new risk assessment tool as a fig leaf to justify doing something - getting rid of bail schedules - that everybody knows they should have done years ago.

Replacing money with a standard assessment to determine risk of violence or future crime and whether the person will return to court has been trumpeted in several jurisdictions across the country.

The problem in Houston, state District Judge Susan Brown said Thursday, is that the county's 22 felony judges don't believe in the reliability of the current risk assessment tool.

By replacing it, Brown said, judges will be more likely to look beyond the county's stated bail schedule and release suspects on personal recognizance.

Also notably: "Anderson also will expand pre-arrest diversion, initially allowed for first offenders with marijuana, for suspects of shoplifting, the class B misdemeanor of retail theft. The plan begins in February." "Pre-arrest diversion" sounds like Harris may finally, fully implement Jerry Madden's 2007 authorization to give tickets instead of make arrests for certain low-level Class B misdemeanors including marijuana possession. (The Dallas City Council just okayed a similar policy for pot arrests.)

If judges and the DA embrace these programs, the plan could work. But it won't be because of a grant. These or similar changes have been staring the county in the face for at least a decade.

Certainly, Grits hopes they do all this; I'm just tired of hearing them promise they're going to do it, which often seems to happen right about election time whenever voters start asking questions, one notices. So at this point my attitude is, "Show me, don't tell me."

Grits' message to Harris County officials: I trust your intentions are as lofty as your rhetoric, but I can't trust you'll change anything until the jail numbers go down. Promises and good intentions aren't enough anymore. Take your cue from Yoda: