Reform on bail and muni fines would be big boon for H-Town indigents

Two different stories out of Houston portray folks chipping away at unnecessary local jail detention from different angles.

Bail litigation adds oomph to reform push
First, see Lise Olsen's story, "Lawsuit adds pregnant mom who was jailed five days after traffic stop: Harris County pretrial detention practices challenged as unlawful," Houston Chronicle, May 24. She runs through the named plaintiffs in  potentially important impact litigation "filed last Thursday by a Washington D.C. group called Equal Justice Under Law, which has been challenging what it calls money bail practices in federal court cases filed all across the United States. Other jurisdictions it has challenged include Ferguson, Mo. and San Francisco, Ca." (See earlier Chronicle coverage.)  Reported Olsen:

The lawsuit names Harris County Sheriff Ron Hickman, who oversees the jail, and the five county hearing officers that generally review such cases and set bond. On any given day, more than 70 percent of those jailed in Harris County are pretrial defendants who have been accused but not yet convicted of a crime, though typically only about 500 at any one time are jailed for minor misdemeanor offenses like petty theft or trespassing.

U.S. Department of Justice attorneys have been monitoring conditions in Harris County jail since 2008. An investigation by the Houston Chronicle found that 55 pretrial detainees died in Harris County custody from 2009-2015, including offenders jailed for misdemeanor crimes like trespassing. Last month, another man  detained because he could not post bail after allegedly stealing a guitar - a misdemeanor - was beaten to death by two inmates jailed on felony charges.

In part because of federal pressure, county officials have been working on reforms - announcing this year that they had obtained a grant to create a diversion court, revamp pretrial reviews and attempt to urge judges to increase release options for non-violent offenders. But advocates like Sen. Rodney Ellis of Houston say those plans left the flawed bond hearings in place - opening the door for the federal civil rights challenge that he supports.

The civil rights case remains pending in federal court - where Equal Justice Under Law attorneys are seeking reforms in lieu of any kind of monetary compensation for all pretrial defendants jailed in Harris County on misdemeanor offenses.

There was a time 10-15 years ago when the prospects for such litigation would have been much dimmer in the 5th Circuit, despite a similar fact pattern existing for a long time. That's a big reason why most of the 21st century reform movement in Texas has focused on legislative solutions. But shifts on the court itself, in the controlling jurisprudence, and, more generally, in the national conversation over justice reform, have opened up new windows of possibility for successful federal civil rights litigation. Grits is excited about the prospects for this one.

In a separate, related story, the Chronicle's Brian Rogers reported that, in response to examples like this new plaintiff, "On Tuesday, Harris County officials took an important step in attempting to address the issue, by announcing a new screening process to help judges determine which suspects awaiting trial can be freed without bail." (Ed. note: before the top of her head justifiably blows off, let it be said former Pretrial Services director Carol Oeller tried to get them to do this for years!)

Proponents of personal recognizance bonds have been stymied in the past by a reluctance on the part of Harris County judges to let suspects out of jail without bail. The conventional wisdom has been that suspects who do not have a financial stake in returning to court will abscond.

On Tuesday, though, county officials touted a new diagnostic tool as a way to move past a decades-old culture that has required every defendant in Houston to put up money or collateral to ensure they would return to court to resolve their cases.

"Obviously, dangerous people need to stay locked up," state District Judge Susan Brown said at a news conference. "For others, the most effective and efficient course of action may be to release them before trial - with conditions such as electronic monitoring or supervision within their community."

Rogers' analysis shows why I'm less apt to reject all uses of risk assessments. Without them, nobody gets a PR bond! Rogers goes on to give a little more information on the risk-assessment instrument they'll be using in Houston, developed by the indigenous Arnold Foundation:

Tuesday's announcement was made by a county committee that has long worked toward reform, the Criminal Justice Coordinating Council. Earlier this year, the committee spearheaded an effort to diagnose and solve problems in the system with a grant from the MacArthur Foundation.

The diagnostic test announced Tuesday was developed by the Houston-based Laura and John Arnold Foundation. It was described as a neutral-based data tool that would assist judges in gauging the risk that a defendant poses to the community.

Foundation representatives were on hand to explain that defendants do not have to be interviewed and given a subjective assessment. Instead, information about them that is readily available in court documents will be weighed by an algorithm to put each person on a continuum of risk. That assessment will be provided to judges who determine whether a defendant can be released without bail.

The nine factors that are considered include age, prior convictions - including misdemeanors, felonies and information about whether the offenses were violent - and whether they appeared for court in other cases. The assessment does not consider race, gender, past drug use, national origin or income.

Matt Alsdorf, vice president of criminal justice at the Arnold Foundation, said the diagnostic tool was developed using more than 1.5 million cases across the country.

"Our research team figured out the factors that are most predictive of defendants' likelihood of missing court or being re-arrested, and in particular being re-arrested for a violent crime," he said. "There's actually a fairly limited set of factors that are highly predictive of those outcomes."

The tool, which backers said has seen success in cities like Chicago and in the state of Kentucky, is being provided with training to the county for free.

Alsdorf said the assessment will provide judges with two risk scores: one on whether defendants will return to court and another on whether they will commit another offense.

With that information, a judge can decide if a suspect should be freed without bail, offered a bail outlined in the county's posted bond schedule or held without bail.

Screening suspects to figure out, statistically, who can be released on a personal recognizance bond, sometimes called "free bail," is expected to lower jail populations, which represent a major county expense.

But officials said it may take weeks or months to train personnel and launch the new system

Not only is this good news for Harris County, it also bodes well for Senate Criminal Justice Committee Chairman John Whitmire's pledged push to enact bail reform during the 85th Texas Legislature. Litigation can help achieve reform not just by getting courts to order it, but it can also spur action to either preempt or react to the courts, as witnessed with the implementation of this new screening tool. Litigation helps prime the institutional players to steel themselves for possible change, giving them a common enemy and thus a psychological motivation for solidarity. After all, every local official has an interest in them calling the shots over their respective areas of turf instead of some federal judge. So next session will be an excellent moment to show up proposing solutions, both for the chairman and for advocates hoping to effect bail reform statewide.

Houston muni courts almost never waive debt for indigence
Next, let's turn to municipal courts and debtors prison issues. Check out "Get a ticket while being poor in Houston? Here's how you might end up in jail," Michael Barajas, Houston Press, May 24. Explained Barajas:

Under Texas law, if you fail to pay, miss your court date and get arrested on an outstanding municipal court warrant for that no-insurance ticket you couldn’t afford to quickly pay, a municipal court judge (or, if you’re in the county’s jurisdiction, the local justice of the peace) is supposed to hold a hearing to determine why you didn’t pay. If the judge finds that you’re too poor and can’t afford the fines against you, you’re supposed to be given some options, like a reduced fine or community service, to pull you out of the red.

That rarely happens in Houston, according to a report by Mayor Sylvester Turner’s transition team tasked with studying the city’s criminal justice policies. According to that report, of the 168,948 Houston municipal court convictions in 2014, community service was offered in lieu of fines in only 2,759 cases. In only six cases did a judge deem someone poor enough to justify reducing or partially waiving fines. That means that while nearly a quarter of Houstonians live below the poverty line, the alternatives for low-income people struggling to pay tickets are used in fewer than 2 percent of cases before Houston’s municipal court judges. The mayor’s transition team report calls Houston’s Municipal Courts Department a “profit center” designed to rake in as much in fines and fees as possible, disproportionately punishing the city’s poor in the process.

Despite reforms her department has implemented in recent years, Presiding Judge Barbara Hartle says a number of factors can lead to someone’s arrest over simple municipal court fines, from overwhelmed judges and court staff to defendants who aren’t forthcoming to the court about the problems they have paying their fines and instead skip their court dates. Plus, she says, it’s not always up to the court who lands in jail for fine-only offenses. Hartle says she’s explicitly asked that Houston police officers stop arresting and jailing people with only class C warrants and instead bring them to an on-call judge. Hartle says that both state and local politicians have for far too long looked to municipal courts as revenue-generators — Hartle’s court, the largest in the state, sends millions of dollars to both the state of Texas and Houston’s general fund every year.

Those interested can see the Mayoral crimjust transition team's full report. (Full disclosure: The document was produced by a committee chaired by Grits contributing writer Prof. Sandra Guerra Thompson.)

Interestingly, Barajas offered this background on the Texan origins of the relevant federal court precedent:

By the late 1960s, Preston Tate had picked up $425 in fines for rolling through stop signs, running red lights and driving without a license on the streets of Houston. Paying off his debt wasn’t an option, not with a wife and two kids to feed off the measly $290 a month he earned, so a judge ordered Tate to serve 85 days at the local prison farm instead.

When Tate’s case reached the U.S. Supreme Court, his lawyers argued that jailing him violated his Fourteenth Amendment right to equal protection under the law, since a wealthy man would have easily avoided jail. The high court justices unanimously agreed, saying defendants must be offered some sort of alternative to jail if they truly can’t pay off the punishment on a fine-only offense.

The same year Tate’s landmark case was decided, his home state passed reforms allowing judges to offer payment plans for people who can’t afford to quickly pay for fines. In later years, the Texas Legislature added community service as an alternative to fines as well as a requirement that judges determine whether someone is indigent before locking that person up for failing to pay. A law passed in 2007 requires judges to make that determination in writing.

Despite the decade-old requirement that muni judges and JPs now must make indigency determinations in writing, wrote Barajas:

Lawsuits filed across the state contend that’s not happening. Last year, Austin was added to the growing list of cities across the country that have come under fire for municipal court practices, with a class action lawsuit filed in federal court by the Texas Fair Defense Project alleging the city “operates a debt-collection scheme that jails dozens of people each month because they are too poor to pay.” Earlier this year, attorneys in Amarillo filed a similar lawsuit saying that city’s collection practices amount to a “modern-day debtors’ prison.” [Ed. note: Our old friend Jeff Blackburn is involved with this one.] According to the lawsuit, Amarillo’s courts dispose of cases by assessing jail time over alternative punishments (like community service, a waiver or a fee reduction) at a ratio of about 47 to 1, despite the city’s 17.1 percent poverty rate. The Texas Civil Rights Project sued the city of El Paso following a Buzzfeed News investigation that uncovered several Texas courts, including one in El Paso, that had failed to give defendants a legally required indigency hearing before jailing them.

Here's an issue I hadn't seen flagged before:

That Houston cops would jail someone for outstanding municipal court warrants isn’t surprising, not when you consider the language printed on each of those warrants commanding “any peace officer of Houston, Texas” to take the defendant into custody “and place him in the jail of your city until the said amount due upon said judgment and the further costs of collecting the same are paid or until the said defendant is otherwise legally discharged.” Trigilio with the ACLU called the wording of those warrants “problematic.”

We also get this data tidbit:

It’s unclear how many of the thousands of people Houston municipal courts have sent to jail in recent years couldn’t pay or simply would not pay. However, Mary Schmid Mergler, with the advocacy group Texas Appleseed, says there’s pretty good evidence the city is jailing people who should obviously qualify as indigent. Mergler, who is compiling a report due out next month on municipal court practices across the state, says data she pulled from Houston’s Municipal Courts Department show that between the start of 2012 and the end of 2015, 12,132 people were jailed for failure to pay fines or to otherwise comply with a municipal court judge’s orders. That averages out to approximately 3,000 per year, or about eight per day. According to Mergler, more than 1,000 of those defendants were listed as “homeless.”

Good stuff. It's exciting to see all the interest and action surrounding these heretofore obscure and seldom-discussed issues. We are living through a period pregnant with opportunity for criminal-justice reform, from Congress to the statehouse in Austin all the way to the most humble county jail or municipal court. One prays Texas doesn't miss the moment.

'I'm physically disabled" ... Zap!

Last week, Grits published video of a man tazed because he would not get up. Here is one of a man Tazed because he would/could not get down. James Sizer dropped like a stone when Austin PD officer Martha Cameron zapped him. He died a week later from the blow to the head sustained when he hit the concrete.

Sizer had fired a gun into the ground in his backyard and threatened a family member - he did not sound like a particularly pleasant or sympathetic person - but he put the weapon away before officers came and told the 911 operator he would meet officers in the driveway unarmed, which he did.

Amanda Woog forwarded me this detail from the APD death-in-custody narrative reported to the Attorney General, which was unusually tardy as such things go:

On March 6, 2015, Sizer called 911 and stated he discharged his firearm at his residence and threatened to shoot his son.  When officers arrived, Sizer refused to comply with officers' orders to get on the ground.  A Taser was deployed and Sizer struck his head when he fell on the driveway.  After receiving treatment at the hospital that night he was booked in to jail on March 7, 2015, for Discharge of Firearm in Certain Municipalities.  On March 9, 2015, Sizer was released from jail after posting bond.

On March 14, 2015, Sizer was found deceased at his residence.  On May 8, 2015, the Travis County Medical Examiners Office finalized the autopsy results and ruled the death a Homicide; citing complications of blunt force trauma to the head and listed a contributing factor of acute and chronic ethanol abuse.

See an offense report and autopsy results. The Statesman offered brief coverage when the officers were cleared by the grand jury and when the family filed suit.

MORE: There's no record either officer was disciplined for the event, even though the Statesman reported that the "arrest affidavit made no mention of Sizer indicating he had a disability and says Cameron believed he could be armed, despite not seeing a weapon in his hands." One wonders if the department has been reticent to punish the two officers because of the risk of successful civil litigation?

AND MORE: According to his obituary, Sizer was a 20-year US Air Force veteran. No word whether his disability related to his service.

Visitation, data, metadata, predictions, and responding to drug war revisionism

Here are a few items which both merit Grits readers' attention and enable me to clear my browser tabs:

Dallas PD can't fill cadet class
Poor Dallas PD can't catch a break. In the wake of media demagoguery about a phony "crime wave," now they can't fill an academy class, reported WFAA. Two have been canceled and a third one may be because they can't get even ten qualified applicants to apply. The story puts the blame on low wages at DPD - that other area departments pay more, Fort Worth is poaching officers, etc.. I wonder if it's that simple?

Thoughts on visitation
Some of the content of this TDCJ 2014 report on visitation looks familiar but the format does not and it doesn't appear I've linked to it before. Though groups like the Texas Inmate Family Association and the Texas Criminal Justice Coalition have engaged the topic to some degree, there's fertile ground for advocacy work on visitation that lies fallow in Texas mainly for lack of resources. It's a gap in current movement work that a) families really care about and b) matters a lot when it comes to retaining family and community ties during incarceration that facilitate successful reentry. There were a few changes made in reaction to the above-linked survey, but much more to be done. Making visitation productive and non-traumatic for children in particular is important, as Dr. Melinda Tasca at Sam Houston State has ably documented. Recently, I've been in a couple of interesting discussions with our friends at the Prison Justice League about what would be required to make prison and jail visitation more child friendly, perhaps starting at the women's units. (The ones I've been to may require physical remodeling to make them welcoming to kids.) Visitation mostly get treated as an afterthought by both the agency and even many reformers, for reasons that are understandable but lamentable. But the lack of sustained focus on reform doesn't obviate the need for it.

Data reporting compliance doc reveal dismissal totals?
Among the recent links the Legislative Reference Library put out related to criminal records was a document Grits hadn't seen before: The "Fourteenth Report Examining Reporting Compliance to the Texas Computerized Criminal History System," published January 2016 using FT2014 data. The document was created to monitor  and improve reporting of arrest and case disposition information by local jurisdictions, which long-time readers know was a significant problem for years before the governor cracked down. Case disposition totals are broken out by county, adult and juvenile; arrests by local agency (it's a lengthy document). Most of this was already being reported elsewhere. But one interesting thing I hadn't seen before was the total number of cases referred to prosecutors that they dispose of on their own, presumably by dismissing the cases, vs. those whose final disposition occurred in court. The Office of Court Administration reports dismissal numbers but breaks them out by court type without aggregating county-wide. If that really is a datapoint on the number of cases dismissed by agency - I need to research it more to understand what they're measuring - that's kind of an interesting tidbit Grits hadn't seen.

Risk assessment intolerance
A couple of interesting articles came out this week from ProPublica and the Marshall Project about alleged benefits, biases and failures of risk assessment tools. Read them. For me, there's room for differentiating how risk assessments are used. Grits would not support using them at sentencing, just as I'm not a fan of a lot of  the junky "future dangerousness" testimony in capital cases' sentencing phase. But to advise a judge regarding pretrial release, when otherwise the default would be to keep the defendant in jail? That  seems less problematic to me. That said, we need good instruments. Grits is optimistic about some of the work the Laura and John Arnold Foundation has been funding on that score, but they'll have to work through the concerns raised in the above-lined articles. Meanwhile, an even more complex set of issues arises around risk assessments attempting to predict who will be shot and who will do the shooting, as the NY Times reported this week is happening at the Chicago PD. Salon grouped the method together with other "dystopian" police methods, and the missus quipped that this tactic smacked of a plot line from the movie Minority Report. But I'm more sympathetic to the idea of maximizing scarce resources that way and haven't fully formed an opinion yet. Hell, just because you identify a risk doesn't mean those on it will be subject to a crackdown. Some cities have experimented with creating a list like the one in Chicago then just paying those on it not to commit crimes! Assessing risk does not necessarily pre-determine how one reacts to it.

Problems go away if you ignore them, right?
Speaking of predictions, here's one which shouldn't have been suppressed. "A government report, blocked from publication a decade ago, presciently warned of an advancing, double-barreled health crisis of mental illness and substance abuse that has currently swamped the nation’s vast prison systems." In particular, "The 2006 document,  prepared by then-Surgeon General Richard Carmona, urged government and community leaders to formulate a treatment strategy for thousands of sick and addicted inmates that also would assist them after release or risk worsening public health care burdens." But "The 49-page report, Carmona said, was quashed at the time by George W. Bush administration officials who feared that such an acknowledgement would require a financial commitment that the administration was not willing to make," reported USA Today this week.

BJS: Lots more older inmates entering prison
Prisoner populations are aging, reported the Bureau of Justice Statistics. Two things are driving this. First: Longer sentences. "40 percent of state prisoners age 55 or older on December 31, 2013, had been imprisoned for at least 10 years, compared to 9 percent in 1993." Second, increased admissions of older prisoners: "Admission to prison of people age 55 or older increased 82 percent between 2003 and 2013. People age 55 or older accounted for 1 percent of state prison admissions in 1993, 2 percent in 2003 and 4 percent in 2013." Nationally, "More than four times as many prisoners age 55 or older were admitted to state prisons in 2013 (25,700) than in 1993 (6,300)."

On the limits of drug war revisionism
Grits pretty much agreed with this response from Bernadette Rabuy of the Prison Policy Initiative to revisionist arguments claiming the drug war was irrelevant to or a minor cause of mass incarceration. Good job. See related Grits posts.

Research bolsters arguments for protecting cell-phone metadata
From TechCrunch: "More proof, if proof were needed, of the privacy-stripping power of metadata. A multi-year crowdsourced study, conducted by Stanford scientists and published this week, underlines how much information can be inferred from basic phone logs cross-referenced with other public datasets." The Texas Lege for two sessions has considered bills protecting privacy of cell-phone location data, which is an important subset of metadata, but the bill couldn't make it through the House Calendars Committee despite two-thirds of House members signing on as co-authors. The reason was the bill author's squabbles over unrelated issues with House leadership and particular members of the Calendars Committee. So with Bryan Hughes either out of the Lege or moving to the senate (we find out which today), maybe that will free up a chance to create a different dynamic and finally pass a bill protecting personal phone metadata.

Use of force, bodycams, and conservative arguments for justice reform

Recording some links here for my own purposes, but perhaps some Grits readers will find them useful, too:

Conservative arguments for justice reform

Our pal Vikrant Reddy, of the Koch Institute via the Texas Public Policy Foundation, has been busy recently proselytizing criminal-justice reform as a conservative cause. Check out:

• Conservative Reform Network: A New Agenda for Criminal Justice
• National Review: Criminal Justice: The Real Reasons for Reform
• US Civil Rights Commission testimony: Municipal Policing and Courts: A Search for Justice or a Quest for Revenue?

Bodycam policy resources
See a good resource page on body camera policies including links to local policies in numerous jurisdictions.  As the Austin City Council's Public Safety Committee prepares to consider APD's policy on Monday, check out this site from OpenAustin.org arguing for maximum transparency. There's an excellent resource list on that site, too, if you scroll to the bottom of the page.

Debating/reforming police use of force
Posting links to a few items on police use of force and disciplinary issues so I can find them to read later: The Police Executive Research Forum's 30 "Guiding Principles on Use of Force," released earlier this year, deserves more attention from reformers who have not been as quick to defend the suggestions as opponents have been to attack them. Beyond defense, there's an immediate need to build on that work. So far, nobody has compared them to local policies to find places to suggest improvements, but that work needs to be done. (Black Lives Matter's Campaign Zero has performed a more limited, independent analysis of some cities' use of force policies, including three in Texas.) In Congress, a suggestion has arisen to deny grants to law enforcement agencies which fail to adopt best practices regarding use of force. Meanwhile, Grits hasn't yet had time to read this detailed analysis of use of force at the NYPD, published last fall, but wanted to flag the link for future reference. For a sense of how police-union lawyers view these use of force issues, check out this cover story titled, "Deadly Force: The rights of suspects and police officers," from the National Association of Criminal Defense Lawyer's Association's house magazine last year. (For a more balanced view of limits on police use of deadly force, see this 2008 article from law prof Rachel Harmon.) Finally, this is as good a place as any to mention that nine Texas advocacy groups have petitioned the governor to weigh in on use of force by law enforcement in schools.

Links on Texas criminal records policy

As two House committees prepare for a joint hearing on Wednesday related to criminal records in Texas, the Legislative Reference Library offered these links for anyone preparing for the event:

May 25 Top

House Committees on Government Transparency & Operation and Homeland Security & Public Safety (Joint Hearing) 

Joint charge: Criminal records

• Survey of State Criminal History Information Systems, 2014, U.S. Department of Justice, Bureau of Justice Statistics, December 2015
• Interim Report to the 84th Legislature (Charge 3 - Sale of criminal histories), House Committee on Criminal Jurisprudence, January 2015
• Criminal Records in the Digital Age: A Review of Current Practices and Recommendations for Reform in Texas, William Wayne Justice Center for Public Interest Law, The University of Texas School of Law, March 2013
• Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses (Part IV/C, Bulk dissemination of records and state regulation of bulk dissemination), National Consumer Law Center, April 2012
• An Audit Report on The Criminal Justice Information System at the Department of Public Safety and the Texas Department of Criminal Justice, State Auditor's Office, September 2011

Last week, the LRL gave this link list for a related hearing in the Senate Criminal Justice Committee which included these additional links:

Charge 5: Dissemination of bulk criminal records   

• Fourteenth Report Examining Reporting Compliance to the Texas Computerized Criminal History System, Texas Department of Public Safety, January 2016
• Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information, SEARCH, The National Consortium for Justice Information and Statistics, 2005
• Interim Report, 77th Legislature: Charge Three (Criminal records), Senate Committee on Criminal Justice, September 2000

Excited delirium: Cause or excuse for deaths in custody?

This NY Times piece on a Georgia death-in-custody didn't use the phrase "excited delirium," but it's precisely the type of circumstance from which that diagnosis can arise.

Grits' contributing writer Amanda Woog asked me recently about "excited delirium," having seen the term come up in death in custody reports she's curating as part of her Texas database project. (Look for a big announcement soon as she releases new datasets beyond just recent police shootings.) I first heard the term when I directed the ACLU of Texas' Police Accountability Project around the turn of the century and it represents one of the most curious and bizarre distortions of medical terminology in service to a political agenda I've ever personally run across. Really, excited delirium is not a diagnosis at all so much as an acknowledgement of the lack of other diagnoses. It's what authorities say when someone dies after being restrained or Tazed by police, they don't want to blame the officer(s), but there are no other explanations for the outcome. One often sees the term suggested in the press by unions before medical examiners ever release their findings.

Excited delirium is a medical condition which seemingly only manifests itself when the patient is being beaten, Tazed, or otherwise physically restrained by law enforcement, which makes it an atypical diagnosis, to say the least. Cynics contend it's a fake diagnosis created to cover up police misconduct. Among professional associations, those fields more closely associated with law enforcement - medical examiners and emergency physicians - accept the term, while the AMA, APA, the DSM, and the World Health Organization do not. The chairman of Texas' Forensic Science Commission, Vincent Di Maio, wrote the principal, professional text making the case for the diagnosis (though clearly it wasn't enough to convince the AMA, etc.).

Anyway, debates over the diagnosis reignited in the last year - with major pieces in the Washington Post,  Slate, and Vice/The Influence - in light of renewed interest in death-in-custody cases inspired by the rise of the Black Lives Matter movement. If someone as well-read as Amanda was unfamiliar with the term, then perhaps others aren't, either. So I thought it'd be good to compile some key links on the topic.

One of the earliest significant MSM pieces I remember on it was from 60 Minutes in December 2003; that sort of put the debate on the map, for me, anyway. Mother Jones in 2009 attributed the rise of the term to the company Taser International, which reportedly employed Di Maio as an expert witness and handed out free copies of his book at law enforcement trainings.

The website PoliceOne has covered the issue quite a bit over the years. Here are a few key items:

• Excited Delirium and its medical status (good summation)
• Is excited delirium a fake condition invented to whitewash abusive force? (response to critics)
• New study: Fast effective option for excited delirium cases (sedation)

Here's a white paper on the topic from the American College of Emergency Physicians, which recognizes the "syndrome."

The since-fired Austin officer who shot and killed David Joseph, a black teenager who was buck naked sprinting down the street, said he thought the young man may have suffered from "excited delirium."

Grits is very much a skeptic here. If we had people dying of excited delirium under other circumstances besides being taken into custody by law enforcement, I'd consider the idea to have more merit. But it's awfully convenient to blame some vague "syndrome" that can't be verified while ignoring violent actions immediately preceding a death as the most likely cause. No civilian would ever get such consideration.

OTOH, it almost doesn't matter. The truth is that police wouldn't be held accountable for those deaths even if no one had ever heard of "excited delirium." (Taser is probably the chief beneficiary of such blame shifting; they don't enjoy qualified immunity.) Meanwhile, pretending the syndrome exists may result in training recommendations for de-escalation techniques which are beneficial regardless of the terminology used.

For example, recently the missus ran across a case from 2015 in which Robert Brandon Edwards was restrained by police and died in transit to the hospital. See Statesman coverage from when the officers were no-billed, the APD incident report and autopsy report, which concluded that Edwards "died as a result of the combined effects of methamphetamine and phencyclidine toxicity and physiologic stress associated with restraint procedures." Though the medical examiner didn't cite "excited delirium" as a cause of death, the detective taking a statement from one of officers used the term to describe Mr. Edwards' condition.

If the department were to alter procedures aimed at preventing deaths like Mr. Edwards, the benefits would not be reduced because they adopted a trendy catch phrase.

These situations are arising and people are dying, whatever we call it. If it takes acquiescing to use of a pseudoscientific buzzword to convince police to embrace de-escalation and/or restraint techniques that minimize loss of life, I suppose we shouldn't mind. In the meantime, though, "excited delirium" still strikes me as less a diagnosis than a strained defense.

Failed litigation may still spur debtors prison reforms in Austin

Though litigation against debtors prison policies in Austin municipal courts was thrown out because of, essentially, a technicality (the question of the constitutionality of jailing indigents to collect fines and fees remains unaddressed; a federal court instead ruled that municipal judges are not city policymakers and therefore can't be sued), the allegations brought by the Texas Fair Defense Project continue to make waves. Reported the Austin Statesman's Jazmine Ulloa:

the lawsuit has set in motion efforts to examine and change procedures within Austin’s municipal courts.

City leaders and civil rights lawyers say it’s not a matter of avoiding further litigation: They want Austin to be among the first communities to tackle what has become a national problem.

Texas law and two unanimous Supreme Court decisions prohibit courts from jailing people because they cannot afford to pay their fines. But many cities have ordinances on municipal court fees that violate those orders. Others give full discretion on payment collection to judges who skirt the law.

Courts across the nation are facing lawsuits over municipal court policies that plaintiffs say have turned jails into modern-day debtors prisons. The issue is brewing in political forums, among academia, in courtrooms and in civic conversations at every level of government.

In addition, reported Ulloa, "El Paso and Amarillo have been sued over their policies, while a report commissioned by Mayor Sylvester Turner in Houston found that the city, like Austin, rarely reduces or waives payment."San Antonio's municipal courts were praised for having eliminated jail time for nonpayment:

“Contrary to fears, there were no spikes in traffic crimes, and the city did not lose revenue,” [Judge John] Bull said.

In 2014, San Antonio’s Municipal Court dropped $327,514 in misdemeanor fines because the offenders were too poor to pay, criminal justice experts said. That same year, Austin’s Municipal Court reported that it didn’t reduce or waive any fines for that reason.

Soon, I want to sit down with Rebecca Bernhardt from the Texas Fair Defense Project, perhaps for another podcast, to talk through the various litigation going on related to fees, bail, and other drivers of local county jail incarceration. There's a lot more interest in these topics now than any time in my adult lifetime - maybe more than there ever will be again. It'd be a shame to waste the moment of opportunity.

MORE: See an op ed from one of the plaintiffs in the case that was dismissed in Austin.

Bikers organizing around Twin Peaks cluster#@*! in Waco

Bikers are organizing to protest the kangaroo court spectacle in Waco in the aftermath of last year's  Twin Peaks biker shootout. If you don't remember (since most of the press outside of Waco seems to have forgotten), bikers killed five people in a dispute that escalated to gunplay while four other bikers were killed by police snipers who were stationed outside the gathering, according to ballistics reports.

That was a tragedy. But the real travesty of justice came when police rounded up 192 people at the scene and JP W.H. “Pete” Peterson, a retired state trooper and non-attorney, ordered one million dollar bail amounts for 177 of them. In all, "154 bikers have been indicted on first-degree felony charges that allege they were acting as members of a criminal street gang that day," reported the Tribune-Herald's Tommy Witherspoon. Courts have upheld those actions (blind justice, indeed!), but it's clear most of those people weren't involved in the shootout and needn't ever have been arrested. No one has yet to be brought to trial and some have speculated that the only people against whom authorities have evidence are already dead.

Check out this lengthy news/conference presentation by the National Council of Clubs, a coalition of motorcycle clubs:


And here's part two:



Man, I miss Sputnik. Wish he was here for this one.

Meanwhile, in Waco Tuesday, an attorney filed  motion asking for District Attorney Abel Reyna to be disqualified from prosecuting the Twin Peaks cases. Reported the Tribune-Herald:

McLennan County District Attorney Abel Reyna should be disqualified from prosecuting cases arising from the Twin Peaks biker shootout because he overstepped his authority by “commandeering” the investigation, a Houston attorney said Tuesday.

“There is a big difference between advising and commandeering,” attorney Abigail Anastasio said.

Anastasio represents Ray Nelson, 42, president of the Hill County Cossacks and one of 154 bikers indicted in the May 17, 2015, shootout at Twin Peaks in Waco that left nine bikers dead and more than 20 wounded.

She filed a motion Tuesday in Waco’s 54th State District Court seeking to disqualify Reyna and assistants Michael Jarrett and Mark Parker from prosecuting the Twin Peaks cases because she alleges they are potential witnesses because of the way Reyna inserted himself into the investigation on the evening of the shootout.

“They started calling the shots,” Anastasio alleged in a press conference after filing the motion. “They were the ones who determined the course of the investigation, what steps to be taken next, without law enforcement having a significant role in that.”

See also the Tribune-Herald's Tommy Witherspoon's summation of the story so far published on the anniversary of the event.

Harris County Sheriff and Hearing Officers Sued over Bail Policies

Harris County, the Harris County Sheriff and Harris County Criminal Law Hearing Officers have been sued for their practice of jailing poor people who have been charged with low-level crimes because they cannot afford to pay a set monetary amount.

Lawyers with Equal Justice Under Law and the law firm Susman Godfrey represent Maranda Lynn O’Donnell, a 22-year-old woman charged with driving on an invalid license and being held on $2,500 bond at the Harris County Jail.

The lawsuit alleges that the Harris County Sheriff and Criminal Law Hearing Officers treat poor people differently than wealthy people when it comes to release after arrest. If a person has the ability to pay a money bail regardless of the risk the person presents to the community, that person is released automatically based upon the County’s bail schedule. A person who cannot pay is detained.

The lawsuit demands that the defendants stop using money bail to detain people without procedures that ensure consideration of the person’s ability to pay any monetary amount set.

According to the April 2016 Abbreviated Population Report from the Texas Commission on Jail Standards over 68 percent of the people being held in the Harris County Jail were being held before resolution of their criminal case. On any given night over 500 people are held in the Harris County Jail on low-level offenses because they cannot afford to pay money bail.

The Harris County Jail has received attention for several deaths of people being held pretrial.  Between 2009 and 2015, 55 people died in the Harris County Jail awaiting trial after being unable to pay money bail. Harris County Sheriff Hickman is also holding some people in jails in Beaumont and Texarkana due to overcrowding in the Harris County Jail system.

In April of this year Harris County received a $2 million grant from the MacArthur Foundation to reform its criminal justice system. Reducing jail overcrowding is one of the county’s main goals for the grant.

Austin traffic stop totals remain low

Looking at topline data from Austin PD's racial profiling reports, Austin PD officers presided over just more than half as many traffic stops in 2015 compared to 2010. Here are the numbers:

Austin traffic stops

2009: 226,401
2010: 232,848
2011: 179,882
2012: 115,384
2013: 133,703
2014: 144,906
2015: 120,056

Long-time readers know the decline in Texas traffic stops is an ongoing trend and, kind of like the crime drop, there aren't obvious explanations for why it's occurring. Here are the blow-by-blow explanations Austin PD has given in racial profiling reports for declining traffic stops since 2010:

In 2011, "the Highway Enforcement Command shifted its mission from citywide traffic enforcement to a focus on the major highways such as IH-35, MoPac and 183. As a consequence, the number of traffic citations declined from 224,662 in 2010 to 165,757 in 2011, a 26% reduction. The overall number of motor vehicle stops also decreased by 23%."

In 2012, "the Highway Enforcement Command shifted its focus to enforcing hazardous violations at top crash locations. This strategy seeks to reduce traffic fatalities and serious-injury crashes, but it also results in fewer citations issued and, therefore, fewer vehicles stopped."

"A second factor [in the 2012 decline] is the shrinking discretionary time available to patrol officers, who make most of the department’s traffic enforcement stops. The department’s uncommitted time (when patrol officers are not responding to calls for service) dropped from 27% in 2011 to 15% in 2012."

In 2013, "APD increased its department-wide focus on traffic safety, resulting in a 17% increase in the number of citations issued: from 106,927 in 2012 to 124,748 in 2013. This increase in citations drove the 2013 increase in traffic stops, most of which resulted in a citation."

"The increase in stops from 2013 to 2014 reflects the department’s continued emphasis on traffic enforcement. Prior to 2013, Austin’s traffic fatality count averaged 61 per year (10-year average), then rose sharply to 78 in 2012 and remained high at 75 in 2013."

"APD increased its department-wide focus on traffic enforcement beginning in 2013. As a result, citations increased 17% from 2012 to 2013, then increased an additional 5% from 2013 to 2014. This sustained increase in citations is reflected in the number of traffic stops."

The 2015 decrease was explained by "patrol staffing levels [having] declined from 88% in 2014 to 81% in 2015. This means that in 2015, 81% of patrol positions were filled and 19% were vacant."

"A second factor [in 2015] is the significant decrease in the time patrol officers have available for proactive and community policing. This proactive – or community engagement – time represents the time officers are not responding to calls for service. Community engagement time dropped from 19% in 2014 to 17% in 2015."

Those explanations sound reasonable, but there's cause to suspect they don't tell the whole story. They reflect very local concerns when in fact the decline in traffic stops is a statewide and national trend that transcends any one department. In Louisiana, the decline in traffic stops/tickets is responsible for their public defender crisis because attorneys for indigent defendants are paid for through traffic ticket revenue.

Grits strongly suspects there are larger, unseen trends at play here in addition to the management decisions described above. A few guesses: Increased vehicle safety from sensors as we migrate toward driverless cars; fewer teenagers choosing to get a driver's license; the rise of video games, cable TV and home entertainment options that reduce young people's day-to-day travel. ¿Quien sabe? There are undoubtedly many more hypotheses to explore (and Grits readers are strongly encouraged to suggest them in the comments). But to explain the broader trend, we'll need to identify macro-level causes. APD's micro explanations don't necessarily justify such a massive drop.

Known unknowns and Texas criminal-justice data

The Marshall Project this week had an article describing 13 things no one knows about the criminal justice system. Grits, of course, views such matters through a unique lens. I only care about the Texas state justice system and needn't concern myself with the the lack of apples-to-apples comparables in Louisiana or New York, etc.. So as I read this, I realized we actually have data for three or four of these gaps. On the others, we're as bereft as the rest of the country. Below, I've interspersed a Texas-centric analysis after each bulleted item listed by the Marshall Project.

Among the things we don’t know about our criminal justice system:

• how many people have a criminal record?

Unknown for Texas. Would depend in part on how one defines a "criminal record." Class C offenses like traffic fines and municipal regulatory violations might be civil penalties in other states. Here, we regulate everything through criminal law, including businesses. (That's why, for example, Texas has 11 felonies on the books you can commit with an oyster; we regulate the oyster industry through criminal law, not civil regulations.)

• how many people have served time in prison or jail?

Unknown for Texas. Maybe we should count? If you've served time in prison or jail, raise your hand ...

• how many children are on some type of supervision or probation?

The Texas Juvenile Justice Department undoubtedly knows this number, though it's not published in precisely that way. According to their annual report, "There were 62,535 formal referrals to juvenile probation departments throughout the state in fiscal year 2015.  This represents  a 2% decrease from  the  previous  year’s 63,914 formal  referrals." Also the court system tracks juvenile case filings in some detail, though you have to do a bit of work combining data from different court types to get to aggregate statewide numbers.

• how many juvenile offenders graduate to become adult offenders?

Hmmmm. Nope.

• how often people reoffend after being released from prison?

We have this information for Texas; the most recent report was published in February 2015.

• how many shootings there are in America?

America's on it's own for this one. But on Texas' behalf, let me suggest a tweak to the data request: Be sure to flag in how many of those shootings was the alleged victim a "sonofabitch" who needed shooting. (Ask Billy Joe Shaver what I'm talking about, if you don't know.) As Shannon Edmonds once reminded us, there's an unwritten rule in every Texas county courthouse that "It ain't against the law to kill a sonofabitch." Then you can subtract that number out and reach the estimate on non-sonofabitch shootings that people actually care about. (/snark)

• how many police are investigated or prosecuted for misconduct?

This will be secret in civil-service cities, unresearched in the others. Information is siloed, buried in individual department record keeping systems which are not shared. OTOH, there's no good reason such information could not be published.

• how many people in America own guns?

Texas has more than one million concealed carry permit holders, so that's a start. Short answer: Enough Texans own guns that gun-control based solutions are a practical non-starter here and anti-violence advocates must look to other strategies if they hope to succeed under the current Republican regime. Or was that not the answer you were hoping for?

• how often police stop pedestrians or motorists?

Texas has this data, sort of. Each jurisdictions reports the number of traffic stops in their annual racial profiling reports and some but not all jurisdictions also report pedestrian stops. These reports are compiled by TCLE on their website but are not routinely aggregated. So it's possible to know those totals - the data exists - but it would be a fair amount of legwork and statewide information is not immediately available.

• how many incidents of domestic violence are reported to police?

The number of "reported" DV incidents is unknowable. Cases may be dismissed, plea to other things, etc., so it's hard to identify them in the system. They're not necessarily flagged or tracked that way. For that matter, you could say that about a lot of things. For example: "We don't know how many injuries or deaths happen in bar fights." That's true for the same reason, because the data's not tracked that way. UPDATE: We do have information on DV arrests and convictions, a commenter pointed out. But I don't think we have the number for "reports" that don't result in arrests.

• what percentage of those eligible for parole are granted release from prison?

Texas knows this number. As of Aug. 31, 2014, right at half of TDCJ prisoners were eligible for parole, according to the 2014 annual statistical report, p. 17. And the number of inmates whose cases are reviewed and the outcomes can be determined from Board of Pardons and Parole reporting. If you couldn't get there from those published reports, you could with a choice open records request or two.

• how many corrections officers are disciplined or prosecuted for abusing prisoners?

Somebody at TDCJ Office of Inspector General probably keeps count, presumably on their fingers.

• how many criminal cases are referred to prosecutors and how they decide which to pursue?

We know how many arrests there are which would roughly correspond to referrals. And we know the number of case filings by prosecutors, which have gone down in recent years after a decade of rising in defiance of falling crime trends. But, with the exception of a few consultant's reports aimed at advising counties on reducing jail overcrowding, few people ever dig more deeply into the process to judge prosecutors' pre-plea decision making.

Bottom line: We have more data on a few of these topics for Texas than apparently is available nationwide. But there remain huge swaths of landscape through which we're flying blind.

Austin now posts police misconduct reports online; shouldn't everybody?

It warms Grits' heart and even inspires a moment of nostalgia to see that Austin's Office of Police Monitor now posts disciplinary memos involving Austin police officers online, as I was reminded when compiling Sunday's post on Ofc. Christopher Van Buren (his 90-day suspension would have ended last month). That information was not always so accessible and in the past there have been costs, both monetary and otherwise, to acquiring and publishing it.

Grits should know. In 1997, your correspondent launched a now-defunct website, all hand-coded in html, titled the "Austin Police Department Hall of Shame." The previous year, working as a opposition researcher, I'd created an online "city council candidates hall of shame" in which I dumped oppo research on four candidates who all lost, including Kirk Watson's then-mayoral rival, Ronney Reynolds. Often, reporters not only picked up the oppo research but frequently presented it as original reporting (which for my purposes - defeating those four candidates - was fine by me). That experience in the early days of the web (the term "blog" wouldn't be coined until 1999) gave me insight into how reporters and pols interacted with the online world which influence Grits' approach to blogging and advocacy to this day.

With the launch of the APD "Hall of Shame" in 1997, I predictably made many friends among the local PD and in union-friendly political circles. The project at first amounted to acquiring disciplinary memos for Austin police officers from the civil service commission under the Public Information Act, combining it with press coverage of local police misconduct, and posting it all online, usually transcribed and coded by hand. Like Grits, it was a labor-intensive hobby. Later, the website name was changed to the (bland) Texas Police Reform Center and its subject matter expanded to cover police misconduct statewide, a project which lasted until Grits launched on this platform in 2004. At that point, I expanded coverage to a much wider array of issues than just police misconduct and began focusing more on public policy than individual cases.

It's especially sweet to have the Office of Police Monitor doing this, since at one point I'd essentially given up on the agency. Former Travis County Sheriff Margo Frasier has been a breath of fresh air compared to all prior occupants of that position. Your correspondent along with a handful of allies launched the political action committee back in the '90s which successfully campaigned to create the Austin Police Monitor's office as part of the city's first "meet and confer" agreement. (I'd have preferred it be done through ordinance instead of via union agreement, a misstep that in some ways neuters the project to this day.)

So the police monitor's office we pushed to establish back in the day now operates a website performing essentially the same function as my activist site that earned me so much criticism two decades ago. There were some angry people when I started that thing, especially some angry cops (the most angry were a handful of officers' wives, who were also the scariest). Activities which got me dubbed an anti-police extremist 20 years ago - publicly tracking police misconduct and shootings online - have become so mainstream they're now government functions.

That's a remarkable shift in the terms of debate on these topics, even if it took 20 years to get there. (Big ships turn slowly, people!) Still, most cities a) don't have a police monitor and b) aren't so transparent about police misconduct. Texas law makes police disciplinary memos in civil service cities public records if they result in suspension without pay. But "public" is not a synonym with "easily accessible."

This might be a good, if modest, 21st century statutory upgrade: Why not require departments to post disciplinary memos related to sustained allegations of police misconduct on their websites, the way Austin's police monitor has done voluntarily? They're open records anyway, you just have to go through a lengthy bureaucratic process to get information that could just as easily be posted online. Why not do so up front as a matter of course?

More on probation, fees, absconders, and public safety

Here are links to the Texas Criminal Justice Coalition's written testimony from yesterday's hearings. Readers should pay particular attention to Doug Smith's presentation to the joint hearing of the House Corrections and Criminal Jurisprudence Committees on probation fees and revocations, I thought he did a good job. You can watch that hearing here; the action, such as it is, begins about 15 minutes in.

For my part, I found myself wishing it were possible to have assigned reading beforehand. In particular, the discussions of absconders would have been more fruitful if both those asking questions and giving answers had read:

• Probation Revocation and Its Causes: Profiles of State and Local Jurisdictions: Bell  County, Texas, University of Minnesota Law School, Robina Institute of Criminal Law and Criminal Justice, 2016
• Profiles in Probation Revocation: Examining the Legal Framework in 21 States, University of Minnesota Law School, Robina Institute of Criminal Law and Criminal Justice, 2014
• Grits for Breakfast, More on mulcting probationers for fees in Bell County, Texas (Feb. 5, 2016)

Probation directors and TDCJ spoke of absconders as though all of them were '30s gangsters on the lam. Really, most just moved and stopped reporting but may or may not pose any particular risk of reoffending. People just find probation terms too difficult and a portion of them give up and stop complying, tempting fate and more importantly for our purposes, incarceration in TDCJ. Absconding is often a symptom of giving up, of fatalism, not inherently an expression of evil intent. So the tendency of probation folks to write off absconders as though, "What else can we do? We have to revoke them," was just a bit too broad and self serving for my tastes. The Bell County study linked above describes in more detail than I can here the nexus between the pressures of fee collection, probationers' fatalism, and their decisions about absconding.

Probation requirements have become so onerous that many people choose incarceration rather than endure them, a couple of probation directors told the committees. Many other defendants who do sign up for probation eventually decide they cannot, as a practical matter, comply with all of its strictures and stop reporting. Some, though not all, of those fall back into recidivism.

In the end, the solutions here involve both the Legislature and probation directors doing things neither of them want to do. For the Lege, overreliance on probationer fees has gotten out of hand and they need to pony up funds to reduce the burden. It's unrealistic to expect fees to be abolished, but they could be significantly reduced if the state replaced the funds and ponied up for more treatment programming.

Meanwhile some but not all probation directors may agree with reforms aimed at: a) shorter probation lengths with b) stronger supervision during the shorter period with c) improved programming and d) more meaningful outcome measures aimed at the offenders' successful reintegration into society. Caseloads are too high, probation terms too long, and there's too much emphasis on collecting fees to make local budgets. Old-school trail-em-nail-em-and-jail-em types will find that idea anathema and there inevitably will be pockets of resistance as change is imposed upon dozens of isolated, local cultures at different departments. Regardless, that's what's needed. And the state's experience imposing progressive sanctions through grant programs (97 percent of departments implemented the changes to get the grants) shows they have leverage to do the job if the Legislature would authorize it.

Such changes would also free up probation capacity to shift more low-risk offenders onto community supervision rolls and away from prison cells, which probably weren't the right place for them, anyway. So all of this plays into any future discussions of decarceration, prison closures, etc.. These are important if complex and obscure topics. I'm glad the two committees are taking a closer look at them.

RELATED: A rose-colored overview of community supervision.

A rose-colored overview of community supervision

TDCJ's Community Justice Assistance Division chief Cary Welebob mentioned a document Grits hadn't seen from the Office of Court Administration - a Study of the Necessities of Certain Court Costs and Fees in Texas - during her testimony this morning before the House Corrections and Criminal Jurisprudence Committees. Hadn't seen that; worth a look-see later.

She also mentioned that the proportion of local probation department (CSCD) budgets paid for from probationer fees varies widely, from 30% up to 60% of CSCD budgets. Differences are primarily attributable "reasons of philosophy," she declared.

Welebob differentiated probation revocations for new crimes vs. "technical" violations, which range from failure to report, absconding, failure to attend a treatment program, failing a drug test, etc.. Currently, Texas probationers have roughly a 10% revocation rate overall, she said. Roughly 50% are because of a new arrest and the other half are technical revocations. Of technicals, 42% had absconded and eight percent were revoked for other reasons. Despite this high level of absconding, she said, within the last 10 years felony technical revocations declined by 9%, she said.

People who cannot pay typically are extended on probation rather than revoked for failure to pay fees, said Welebob. However, she failed to acknowledge research in Texas by the Robina Institute which found some probationers abscond because they fear they'll be arrested for nonpayment of fees or noncompliance with other conditions of probation. To the extent that's the case, the "absconder" category masks a deeper problem of noncompliance leading up to that final rejection of supervision.

Rep. Krause asked Welebob what are the drivers of revocations? She replied, interestingly, that local chiefs' philosophies had been a driver in the past. Early on, some were more resistant to evidence-based approaches, progressive sanctions, etc., than others. Today, 97% of departments use progressive sanctions, she said, so TDCJ grants have successfully established a new statewide standard.

Because of changes in statute in 2007, she said, early termination rates have risen, sentences are shorter, more time credits are in place, and in general low-risk people find it easier to get off supervision, Welebob argued. Those left on the probation rolls have both higher needs and higher risk of re-offending. As such, she argued, one would then expect revocation rates to tick up just a bit in the near future.

I like Welebob but thought that analysis fell short, obscuring more than it illuminated. The discussion conflated a lot of different categories and causes and, as a guide, Welebob offered committee members a rose-colored-glasses tour of a complex, dynamic, and obscure community-supervision landscape.

What does an Austin cop have to do to get charged with official oppression? (Hint: More than tazing a confused, supine homeless man)

While it's true that a small percentage of police officers are responsible for a disproportionate amount of misconduct, it's also true that, before video cameras proliferated in the last 10 years or so, such misconduct was both common as dirt and just as commonly ignored. Now, with the rise of dashcams, bodycams, ubiquitous surveillance and personal cell phone cameras, police misconduct can be harder to conceal.

Take the example of Austin PD rookie Ofc. Christopher Van Buren, suspended for his failure to determine the "objective reasonableness," or lack thereof, of force he used against a homeless man sitting on the ground. Van Buren tazed the guy within just a few seconds of getting out of his car and confronting him, because the fellow, who was reclining under a tree, didn't follow orders quickly enough.

The Statesman ran short items when the officer received a 90 day suspension and when a grand jury declined to indict him for anything, and the Chronicle covered his suspension, but neither chose to publish the video. See APD's suspension memorandum, which contains more detail than the news accounts.

The missus asked for and received video of the incident under the Public Information Act and it tells quite a story. Meanwhile, thanks to the generosity of Grits' contributors, I recently acquired some video editing software and have begun teaching myself the basics. So here's another example of what police misconduct looks like in Austin -- harsh enough to warrant a 3-month suspension without pay, but still not, apparently, rising to level of "official oppression." Watch for yourself and judge:

What does qualify as "official oppression" if that does not? If criminal laws don't forbid such an obvious abuse of power, what's the point of having official oppression charges on the books?

Regardless, video is crucial. If this fellow showed up in court without it and alleged this sequence of events had occurred, in the face of two police officers saying otherwise, he might well have been handed additional charges for filing false reports, etc.. But seeing is believing. And it's hard to justify what you see on that video.

'Negligent' ballistics ID, indigent defense overviews, Texas' 'merry-go-round for the criminally insane,' and other stories

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

Reentry resources
Check out these excellent resources on reentry from the Texas State Law Library, including pages on housing, employment, "community resources," and "practice aids." Lots of useful information there. Also, for details on county-level reentry services, see TDCJ's Reentry Resource Guide.

Jails and mental health screening
Here's an interesting TV news story out of San Antonio about new mental health screening procedures at the county jail.

Texas' 'merry-go-round for the criminally insane'
The Star-Telegram had a good story Sunday about an Arlington man who'd bounced back and forth between the county jail and a state hospital seeking competency restoration, stuck on "the state’s merry-go-round for the criminally insane."

'Professional negligence' found in ballistics misidentification
The Forensic Science Commission last month found "professional negligence" occurred in the ballistics analysis at the Southwest Institute of Forensic Science (SWIFS). The examiner attributed too much significance to small striations on a bullet and inappropriately chose different ammunition for test firing. SWIFS believes that "confirmation bias" and "expectancy bias" contributed to errors by both the examiner and the technical reviewer.

Crime lab accrediting bodies merged
Two of the largest accrediting bodies for US crime labs have merged. See the press release and a FAQ about the merger. I haven't seen any coverage on this but it's a pretty big deal. Here's a list of accredited labs in Texas.

TX indigent defense surveyed
Take a look at a presentation on "The State of Indigent Defense in Texas" from the Indigent Defense Commission at a conference last month on pretrial services. And here's a different presentation to the Panhandle Criminal Defense Lawyers Association focused more on caseloads and trends. Finally, TIDC published an interesting-looking document last September which Grits hadn't seen before titled "Effective Indigence Screening," which may merit further attention from you correspondent in the near future.

Austin bodycam contract up next Thursday

Next Thursday, May 19, the Austin City Council has contracts on its agenda to purchase body cameras from Taser and license plate readers from Vigilant Solutions. Check out an activist website advocating for maximal openness surrounding bodycam records.

(Ed note: Hearing date corrected from the original posting.)

See related Grits posts on bodycams:

• Looking forward, dreaming big: Bodycams are Taser's loss leaders
• State data solution makes most financial sense for agencies deploying bodycams 
• Bodcycam rollout must come with transparency
• Body cameras and the purpose of law enforcement 
• Bodycam legislation closed too many records

Previewing Texas Lege hearings on #CJReform next week

Next Monday and Tuesday will be full days at the capitol for criminal-justice reform topics, with three different committees holding hearings relevant to the subjects covered on this blog. The Legislative Reference Library helpfully compiled these background resources regarding the interim charges those panels will consider:

House Committee on Criminal Jurisprudence (May 16) 

Charge: Asset forfeiture

• SCOTUS Ruling Requires Relook at State Asset Forfeiture Laws, National Conference of State Legislatures, April 1, 2016
• Policing for Profit: The Abuse of Civil Asset Forfeiture, 2nd Edition, Institute for Justice, November 2015
• Civil Asset Forfeiture: Good Intentions Gone Awry and the Need for Reform, Heritage Foundation, April 20, 2015
• New Bill Would End Policing for Profit in New Mexico (HB560), American Civil Liberties Union, February 19, 2015
• Audit of the Assets Forfeiture Fund and Seized Asset Deposit Fund Annual Financial Statements Fiscal Year 2014, Office of the Inspector General, U.S. Department of Justice, January 2015
• FY2015 Asset Forfeiture Fund Reports to Congress, U.S. Department of Justice, 2015
• Asset Forfeiture in Texas: DPS and County Interactions, Office of Court Administration, December 2014
• "Reverse Robin Hood: The Tale of How Texas Law Enforcement Has Used Civil Asset Forfeiture to Take From Property Owners and Pad the Pockets of Local Government – the Righteous Hunt for Reform is On," 46 Texas Tech Law Review 1169 (Summer 2014)
• Taking Contraband Without Taking Our Liberties: Civil Asset Forfeiture Reform in Texas, Texas Public Policy Foundation, March 2014

House Committees on Corrections and Criminal Jurisprudence (Joint Hearing, May 17) 

Charge: Probation & parole - fees and revocations

• Resource Guide: Reforming the Assessment and Enforcement of Fines and Fees, United States Department of Justice, Office of Justice Programs, March 2016
• Probation Revocation and Its Causes: Profiles of State and Local Jurisdictions: Wharton and Matagorda Counties, Texas and Bell  County, Texas, University of Minnesota Law School, Robina Institute of Criminal Law and Criminal Justice, 2016
• Statewide Criminal and Juvenile Justice Recidivism and Revocation Rates, Legislative Budget Board, February 2015
• Examining Racial and Ethnic Disparities in Probation Revocation: Summary Findings and Implications from a Multisite Study (Includes Dallas County, Texas), Urban Institute, April 2014
• Cutting Edge Corrections: Using Technology to Improve Community Supervision in Texas, Texas Public Policy Foundation, April 2014
• Profiting From Probation: America's "Offender-Funded" Probation Industry, Human Rights Watch, February 2014
• Profiles in Probation Revocation: Examining the Legal Framework in 21 States, University of Minnesota Law School, Robina Institute of Criminal Law and Criminal Justice, 2014
• Safer, Smarter, and More Cost-Efficient Approaches to Reducing Crime in Texas, Texas Criminal Justice Coalition, February 2013
• A Framework to Improve How Fines, Fees, Restitution, and Child Support Are Assessed and Collected from People Convicted of Crimes, Council of State Governments Justice Center, Texas Office of Court Administration, March 2, 2009

Senate Committee on Criminal Justice  (May 17)

Charge 3: Reentry programs provided by TDCJ and the Windham School, including inmates in administrative segregation; Certified Peer Support Services; Darrington Seminary Program   

• Attorney General Lynch Releases Roadmap to Reentry: The Justice Department's Vision to Reduce Recidivism through Federal Reentry Reforms, U.S. Attorney General Loretta E. Lynch, April 25, 2016
• "States Examine Policies, Conditions for Solitary Confinement in Prisons," Interim News, House Research Organization, February 17, 2016
• "Darrington Seminary Graduates First Class of Ministers," Criminal Justice Connections, Texas Department of Criminal Justice, May/June 2015
• Statewide Criminal and Juvenile Justice Recidivism and Revocation Rates, Legislative Budget Board, February 2015
• Offender Reentry: Correctional Statistics, Reintegration into the Community, and Recidivism, Congressional Research Service, January 12, 2015
• "Solitary Confinement, Public Safety, and Recidivism," 47 University of Michigan Journal of Law Reform  495 (Winter 2014)
• Texas Department of Criminal Justice, Correctional Managed Health Care Committee, Windham School District, Board of Pardons and Paroles: Final Report with Legislative Action (Issue 2 - Reentry strategies), Sunset Advisory Commission, July 2013
• Interim Report to the 84th Legislature (Charge 1 - Review correctional facilities and procedures, reentry & parole), House Committee on Corrections, January 2015
• Reentry and Integration Division (Reentry resource guide, reentry articles and reports), Rehabilitation Programs Division, Peer Recovery Support Services, Texas Department of Criminal Justice

Charge 4: Pretrial diversion and treatment programs   

• Overincarceration of People with Mental Illness: Pretrial Diversion Across the Country and the Next Steps for Texas to Improve its Efforts and Increase Utilization, Texas Public Policy Foundation, June 2015
• Pretrial Diversion, National Conference of State Legislatures, May 13, 2015
• Smart Justice, Initiative Resources, Jail Diversion, National Association of Counties

Charge 5: Dissemination of bulk criminal records   

• Fourteenth Report Examining Reporting Compliance to the Texas Computerized Criminal History System, Texas Department of Public Safety, January 2016
• Survey of State Criminal History Information Systems, 2014, U.S. Department of Justice, Bureau of Justice Statistics, December 2015
• Interim Report to the 84th Legislature (Charge 3 - Sale of criminal histories), House Committee on Criminal Jurisprudence, January 2015
• Criminal Records in the Digital Age: A Review of Current Practices and Recommendations for Reform in Texas, William Wayne Justice Center for Public Interest Law, The University of Texas School of Law, March 2013
• Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses (Part IV/C, Bulk dissemination of records and state regulation of bulk dissemination), National Consumer Law Center, April 2012
• Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information, SEARCH, The National Consortium for Justice Information and Statistics, 2005
• Interim Report, 77th Legislature: Charge Three (Criminal records), Senate Committee on Criminal Justice, September 2000

Charge 6: Costs for family members to maintain contact with incarcerated family members    

• Screening Out Family Time: The For-Profit Video Visitation Industry in Prisons and Jails, Prison Policy Initiative, January 2015
• Video Visiting in Corrections: Benefits, Limitations, and Implementation Considerations, United States Department of Justice, National Institute of Corrections, December 2014
• Video Visitation: How Private Companies Push For Visits By Video and Families Pay the Price, Grassroots Leadership and Texas Criminal Justice Coalition, October 2014
• Study of the TDCJ Offender Visitation Policies, Texas Department of Criminal Justice, August 2014
• Please Deposit All of Your Money: Kickbacks, Rates, and Hidden Fees in the Jail Phone Industry, Prison Policy Initiative, May 2013
• "Prison Visitation Policies: A Fifty-State Survey," 32 Yale Law & Policy Review 149 (2013)
• Children of Incarcerated Parents, National Conference of State Legislatures, March 2009