Powerful people more likely to support #cjreform post-indictment, and other stories

Here are a few odd and ends which merit readers' attention while I work on a separate writing project:

Bail required of most Harris Co. misdemeanor defendants
Only 8.5 percent of misdemeanor defendants in Harris County are released on personal bonds, not 20 percent as the county earlier told a federal court, reported Lise Olsen at the Houston Chronicle. In reality, "in 2015 only 8.5 percent of the 50,947 people arrested for misdemeanors were released on so-called personal bonds, which do not require cash or a bail bondsman." That's 4,307 people in 2015.

Pro tip: Don't destroy evidence from pending drug prosecutions
The Harris County DA must dismiss dozens of cases because a since-fired constable's deputy mistakenly destroyed evidence in hundreds of cases. Reportedly, there are "25,000 pieces of evidence since 2007" which were possibly affected. No telling yet precisely how deep this rabbit hole goes. So far, the Houston Chronicle reported, "prosecutors have yet to issue any so-called Brady notices of possibly exculpatory evidence, either to defendants with pending cases or to those who already had been convicted to inform them of the problems with the evidence."

Soros push to elect reformer DAs should target Nueces
Grits hopes that whomever is guiding George Soros' effort to elect reformer DAs has picked up on the Nueces County race Grits discussed Sunday. A significant investment there could put Mr. Gonzales over the top.

Powerful people more likely to support #cjreform post-indictment
Speaking of Nueces County, renowned liberal trial lawyer Mikal Watts and his family have found a new appreciation for criminal justice reform after he was acquitted at trial of 66 criminal allegations relating to his handling of litigation following the BP oil spill. "I fear our federal prisons are full of people who, threatened with a life sentence like I was, plead to a crime to which they are not guilty," he told Krista Torralva at the Caller Times. This seems to be a pattern which crosses party lines. One noticed that Rick Perry's appreciation for the problem of prosecutorial overreach similarly deepened following his own expensively defended indictment. Indeed, one of the earliest conservative proponents of criminal justice reform was Chuck Colson, a Richard Nixon crony imprisoned after Watergate who saw the light on criminal justice reform when he came out and founded the influential Prison Fellowship. It'd be as fun as it is unlikely to see Watts and Perry team up to champion criminal justice reform; that'd tickle Grits to no end.

Pepper spray violation draws suspension, violent traffic encounter results in lawsuit
An Austin cop received a 45 day suspension for gratuitously pepper spraying a restrained suspect in a police paddy wagon. What do you think would have been his punishment if local copwatchers hadn't caught his actions on video? In related news, Breaion King, who dashcam video showed being violently flung to the ground by an officer twice her size, filed suit against him and the city this week. It may be that APD and the city have no real incentive to effect change unless they're held financially liable.

Training and police reform
Grits is more confident than in the past that improved training might reduce police violence because of the proliferation of training based in de-escalation tactics. (See this discussion.) The Atlantic has an article out confronting this question titled, "How much can better training do to improve policing?" No one reform will be a panacea. But shifting away from a use-of-force continuum which assumes escalation and instead requiring training to emphasize the sanctity of human life as a primary value, as the Police Executive Research Forum has suggested, to Grits must be an important component.

Moonlighting cops and police shootings
Having mentioned the Texas Tribune's item on Texas police shootings that occurred while officers are off duty, I should point out this new academic article analyzing "Moonlighting: The Private Employment of Police Officers," which has joined Grits' backlogged reading list.

Unholstered: Texas Tribune takes deep dive on police shootings

The Texas Tribune today published a major web feature on police shootings in Texas. They examined shootings by 36 Texas police departments cities with more than 100,000 population for the period 2010-2015, so they don't capture other LEOs like sheriffs deputies or constables; the cities they researched include about half the state's population.

In those 36 cities they found 656 shootings involving 881 officers between 2010 and 2015. This is basically a large sample,there were many more shootings over that period.

Several article accompanied the initial web piece. This one focused on on the rarity of discipline after police shootings. Only a handful of officers were disciplined by their department: 14 were suspended, 10 were fired (including 7 who were indicted), and one received a written reprimand. Another focused on use of force when officers respond to mental health crises.

Another piece explored shootings that occurred while officers are off duty. And here's an item titled, "Seeing a threat, police will shoot an unarmed individual."

Finally, just to say so, this item about data problems surrounding police violence struck me as odd, avoiding all mention as it did of Amanda Woog's project publishing data on police shootings and deaths in custody. Especially since Woog actually corrected an erroneous Attorney General report which overstated the number of people Texas officers shot, her efforts merited mention if you're going to report on these data issues.

Regardless, this was a major undertaking. Lots of useful stuff in these reports and Grits may have more  to say when I get a chance to go through them in more detail.

RELATED:

• Podcast: New Texas death-in-custody data online
• Why the increase in number of Texans shot by police?

Not the Texas Rangers' proudest day

Grits receives the Texas State Historical Association's relentless daily email and today's missive told the story of a particularly unsavory, if successful, use of the Texas Rangers to enforce Jim Crow in defiance of federal courts.

On this day in 1956, an angry mob surrounded Mansfield High School to prevent the enrollment of three African-American students in what became known as the Mansfield School Desegregation Incident. The National Association for the Advancement of Colored People had sued the Mansfield school district over its segregation of black schoolchildren. When a federal court ordered the district to desegregate--the first time a Texas school district received such an order--many white citizens resisted. Vigilantes barred integration sympathizers from entering town, whites hanged three blacks in effigy, and downtown businesses closed in support of the demonstrations. Governor Allan Shivers authorized the Mansfield school board to transfer black students to Fort Worth, seventeen miles away, and dispatched Texas Rangers to uphold the district's policy of segregation. The successful defiance of the federal court order helped inspire the passage of state segregation laws in 1957, delaying integration for several years. The Mansfield school district finally desegregated in 1965.

Grits was raised on stories of Texas Ranger heroism, but somehow that one never made it into the canon.

Size of police forces have less to do with crime reduction than policing strategies

Every municipal budget cycle, police administrators approach local budget writers asking for more officers to combat crime. But hiring more cops is expensive and local officials seldom have a way to judge whether doing so will increase public safety for their constituents.

Recently, researchers conducted "a systematic review of 62 studies and 229 findings of police force size and crime from 1971 through 2013. Only studies of U.S. policing and containing standard errors of estimates were included." Their analysis revealed that, "the overall effect size for police force size on crime is negative, small, and not statistically significant."

The upshot of their meta-analysis: "This line of research has exhausted its utility. Changing policing strategy is likely to have a greater impact on crime than adding more police."

That's not what police chiefs and unions are telling city councils in local budget conversations. Regardless, at this point, the costs of adding ever-more officers without changing policing strategies and adequately funding various support services probably can't be justified in most instances.

H/T: Deriek Cohen

Houston PD, union want control over CSU at officer-involved shooting sites

The Houston police union and the acting chief want the department to regain control of crime scene technicians who investigate police shootings, reported Lise Olsen at the Houston Chronicle, after that authority was transferred to the city's independent crime lab two years ago. Her story opened:

Houston's acting Police Chief Martha Montalvo, with the support of the powerful Houston Police Officers Union, has made a behind-closed-doors bid to take back control over the troubled Crime Scene Unit from the city's independent forensic science lab.

The Crime Scene Unit is small but critical - its technicians gather and photograph evidence from all homicides, including incidents in which police officers use deadly force against civilians.

Montalvo's move comes in the wake of a highly critical audit by three outside experts who concluded in July that crime scene investigators need increased independence from the Houston Police Department - not less - to objectively gather evidence in shootings involving HPD officers.

The audit focused on eight recent officer-involved shootings in 2016 and concluded that crime scene analysts had in some cases been influenced in their evidence collection decisions by statements made by other officers at the shooting scene. The audit found that analysts had failed to properly collect evidence, including bullets, photos and samples, and needed more training. The unit is currently made up of a mix of sworn officers, who are members of the police union, and civilian lab employees overseen by a civilian director.

Nicole Casarez, who chairs the newly independent crime lab, said the move would undermine their independence and possibly threaten accreditation. What's more, reported Olsen, the move could jam up the city in ongoing civil rights litigation:

The debate over who should run the Crime Scene Unit and what experts concluded about its lack of independence is taking place as the city of Houston is facing civil rights lawsuits in federal court that criticize HPD for systematically failing to adequately investigate officer-involved shootings of unarmed people. HPD data and information cited in the lawsuit shows that every intentional shooting involving a Houston officer since 2010 ­- more than 150 in all - have been found to be within department policy.

The Houston Police Department reported 32 officer-involved shootings in 2015 and 18 so far this year - far more than any department in the state, according to HPD's statistics and data available under a new state law that requires such incidents to be tracked. Houston police have in recent years reported more incidents of potentially lethal use of force than were reported in New York or Los Angeles. From 2010-2015, officers shot and killed 78 people and wounded 133 others. About 17 percent of those shot by police were unarmed.

Insisting on the police department controlling crime-scene techs,  but only at officer-involved shootings, is a ballsy and brazen demand which smacks of a shallow and smarmy self-interest and should be roundly rejected. There's no justification for it except to let the chief control and potentially manipulate information. Indeed, this is a great example of why the crime lab in Houston was made independent in the first place: It relieved lab workers from institutional pressure to conform their findings to law-enforcement narratives and allowed them to focus on evidence and science. Two years later - particularly in light of this dynamic where the chief and union agree on rolling back reform - that move seems prescient, not problematic.

'Body Camera Obscura': Videos of police violence and matters of perspective

Image from fatal police shooting in Palestine, TX, 2015.

Those thinking through the implications of police body-camera policies and procedures may find useful this academic article I read over the weekend from Georgia State law prof Caren Myers Morrison, titled "Body Camera Obscura: The Semiotics of Police Video." Her analysis takes a step back from legalistic controversies to think more deeply about how meaning is derived from video images of police violence, particularly in courtroom settings. "Using insights from semiotics, film criticism, cultural theory, and cognitive psychology, [the article attempts] to sketch out a more nuanced way of approaching video evidence in the context of these cases. The aim of this article is primarily descriptive and diagnostic: we are in danger of misunderstanding a new source of evidence in these hotly contested cases, and making an already permissive standard even more lax." As things stand, she wrote, "Courts seem remarkably unsophisticated and credulous when dealing with video evidence."

"A bit of a touchy-feely approach for my tastes," Grits thought upon seeing the title and abstract, but Morrison has produced a thoughtful and useful piece that systematically runs through various strains of bias which can infect those interpreting video and result in different types of errors. "Because video evidence is so emotionally compelling," she wrote, "it makes factfinders vulnerable to a host of biases, including naïve realism, or the belief that what one sees is the uncontroverted truth, the inability to recognize the role of subjectivity, the fragmentation of perspective, and identification bias." The article then discusses each of those in turn in the specific context of police body cameras - a valuable contribution.

One critique I don't agree with: The author writes that the "unquestionable usefulness of video recordings comes with a dark side; cases without video now tend to be devalued and overlooked by the public." Of course, that's true, but it's not necessarily problematic.

Grits' own criminal-justice reform work began in response to a string of bad police shootings and misconduct in Austin in the mid-1990s. In 1997 I launched a now-defunct site called the Austin Police Department Hall of Shame, which documented sustained misconduct and questionable use-of-force incidents by Austin police officers, expanding the work statewide in 2000 into a site called the Texas Police Reform Center. (That site shut down when Grits for Breakfast launched in 2004.)

So, having spent years trying to convince the public to care about police misconduct in the pre-cell phone era (I was director of the Police Accountability Project at ACLU of Texas for seven years, 2000-2006), Grits can say with confidence that, before cell-phone and dash cam video, those cases were devalued and overlooked anyway, going back many generations. Without video, even convincing people there was a problem was a difficult slog. It wasn't real to the white public until they could see it with their own eyes. And a glimpse of the truth is better than no access to it at all. With video, the public ignores cases without video; without video, they ignore these issues entirely.

Regardless, lots of other interesting stuff here. This discussion of the implications of Morrison's humanities-based approach gives a flavor:

Police video is video recorded by the police in the course of their official duties, either via dashboard-mounted cameras (“dash cams”) or body-worn cameras (“body cams”). Eyewitness video, often recorded on a cellphone, is taken by bystander-witnesses or victims, either spontaneously or as part of a Copwatching program. These two types of videos offer contrasting narratives. Police video tends to recirculate dominant narratives of violence and masculinity as heroic ideals that coexist easily with the legal standard of the reasonable officer. In contrast, the perspective in eyewitness videos typically challenges those narratives and offers the counter-narrative of an abusive state.

The malleability of video in the context of police use-of-force cases has been apparent since a primarily white state jury found four white Los Angeles police officers not guilty of unlawfully assaulting black motorist Rodney King in 1991, despite a video capturing the beating. Arguably, this was because video recordings don’t actually show the “truth” of any interaction— they are inherently indeterminate. Video will reflect a different reality depending not only on who is watching, but also on who is recording. Therefore, in the context of police violence cases, legal actors need to view images with greater skepticism, and be aware of the competing narratives they offer.

While images have evidentiary value, they also have cultural currency. There is a tension between the use of video as “both evidence and a call to action,” on the one hand, and as entertainment, recycling a historical spectacle of black victimhood, on the other.  Because the paradigmatic video is that of a black man shot by the police, these images reflect back to us our feelings about violence, race, masculinity, and the law, and how we believe they should interact.  But the salience of the videos that make news headlines tends to focus attention on the worst kinds of police violence, and their shock value may distract us from thinking more deeply about systemic questions that go beyond individual encounters.

Not sure I completely agree that bodycam footage always portrays officers as a hero, but it's inarguable that they only show one perspective, and not always a determinative one. I also agree that focusing on the most extreme cases discourages deeper systemic thinking, in much the same way that myopic focus on death-penalty cases overlooks problems in the far-more-vast non-capital parts of the system.

"Video evidence is at its most powerful and least ambiguous when it can contradict a false account given by the police," she noted - an effect entirely obviated by policies that allow officers to see the footage and other evidence against them before answering questions from police investigators. But in more ambiguous, workaday cases, "video evidence needs interpretation just as much, if not more than any other type of evidence."

The SCOTUS standard applied in police use of force cases "does not take into account the police officer’s actions in precipitating the confrontation," the author observed, leading to allegations that the standard "condones unnecessary violence" by ignoring the officer's role in getting to that point. The standard focuses only on the split second in which the officer makes the decision to fire, not "what went before."

For all of its benefits, video evidence encourages this atomization of facts, literally focusing the factfinder on the narrowest of moments in the encounter. When examining police video, particularly body cam video, the legal standard melds with the perspective of video, reducing a confrontation informed by many factors to a simple matter of whether the officer might plausibly have been in fear for his life at that one moment. This is where the “deceptive intensity” of video evidence can be problematic. If police video can heighten the sense of danger to the officer, it may place a thumb on the scale in favor of the officer in the eyes of many viewers.

The meat of the article examines case studies exemplifying various types of biases and showing how subjective interpretation colors every image, whether it's police, prosecutors, courts or the public doing the interpreting. Police body cams are new, but theoretical work regarding how people interpret moving images extends back a century. Grits learned a few things seeing the latter applied to the former.

On interpreting meaning from Nueces DA ouster and the limitations of reform via prosecutor elections

The vanquishing of Nueces County DA Mark Skurka by a defense lawyer with "Not Guilty" tattooed across his chest was one of the prime examples offered up in a new academic article by Stanford's David Alan Sklansky titled, "The changing landscape for elected prosecutors." According to the article, Mark Gonzales was one of several prosecutors who have recently "won office by promising, in part, to reduce prosecutorial misconduct, excessive punishment, or overly aggressive, racially disproportionate police tactics." He "campaigned against overly aggressive prosecutions" and for "greater transparency." Here are the specific references to the Nueces County race:

In February 2016 [sic], the incumbent District Attorney in Nueces County, Texas, Mark Skurka, lost his primary race to Mark Gonzales, a defense attorney who lacked prosecutorial experience and had “not guilty” tattooed across his chest; Gonzales had promised greater transparency and a crackdown on prosecutorial misconduct.

Here's a bit more detail:

In March 2016, in what local media called “a huge upset,” the well-known District Attorney of Nueces County, Texas, career prosecutor Mark Skurka, was turned out of office in the Democratic Primary. Skurka lost to Mark Gonzalez, a longtime criminal defense attorney with no prosecutorial experience with “not guilty” tattooed across his chest. During the campaign, Gonzalez embraced his identity as a hard-charging defense attorney. The principal issues on which he ran were prosecutorial misconduct and, in particular, the improper withholding of exculpatory evidence. He emphasized a string of cases in which convictions obtained in Nueces County had been overturned on appeal and the prosecutors had been accused of misconduct. Every prosecutor, Gonzales said, should have “not guilty” tattooed “on their heart,” because until convicted at trial, “everyone accused of a crime is not guilty.”

In a preview of the Nueces DA race, Grits earlier noted that Skurka was "the hometown DA for the Democratic Chairman of the Texas House Criminal Jurisprudence Committee and the Republican Chairman of the House Calendars Committee, giving him out-sized political influence for a Democratic office holder." A significant scandal just weeks before the election probably helped seal the incumbent's fate. At 56-44, the race was pretty much a stomping.

None of this means Gonzales will be a shoo-in. He faces a Republican candidate and in 2012 Nueces County went for Romney. His best hope will be if Donald Trump inspires significant numbers of Republican voters to stay home. And even if he is elected, what meaning can one derive from it? You can argue Democratic primary voters were making a statement, but if Gonzales loses in the general along partisan lines, would that be a pro or anti-reform statement? Neither, really. It just means partisanship outweighs nearly every issue in the minds of general election voters, which is hardly news.

While attempting to rebut arguments that prosecutor elections are poor vehicles for reformist aspirations, Sklansky does recognize the "limitations" on elections' ability to hold DAs accountable:

Perhaps the most serious [limitation] is that voters generally are poorly positioned to assess the performance of an elected prosecutor. Prosecutors do much of their most important work not in open court but behind closed doors: that is they consult with police officers, make charging decisions, determine what evidence needs to be disclosed, and hammer out plea deals. And prosecutors’ offices tend to be secretive and opaque, far more so than even most police departments. So the public often lacks basic information about how a district attorney’s office is operating. Moreover, it isn’t even clear what information the public should want or should care most about; there is remarkably little consensus about what distinguishes good prosecutors’ offices from bad ones. It isn’t just that people disagree; most of us have, within ourselves, conflicting expectations for prosecutors. We want them to be zealous advocates and dispassionate ministers of justice; champions of justice and instruments of mercy; creatures of the law and exercisers of discretion.  All of this —the lack of transparency, the disagreements and conflicting expectations about how prosecutors should do their jobs— makes it difficult to assess the ultimate significance of ... any of the election results we’ve been discussing.

Real prosecutorial reform must extend beyond elections to the statehouse and the judiciary. But when the opportunity arises for voters to make a statement, it's encouraging to find that increasingly more and more are willing to do so.

No rampant crime wave resulted from massive decriminalization of Texas juvenile life

Grits focuses mostly on the adult justice system, which in Texas still has the largest prison population in the nation, so it's sometimes easy to lose hope. But with school restarting this week, it struck Grits that there's a resonant, unrung bell on juvenile justice whose absence might go unnoticed if one doesn't listen carefully, like a dissonant chord was removed from the middle of some dystopic symphony, resulting in a welcome, if unexpected, major bridge.

In the past decade, Texas has undergone a massive decriminalization of juvenile life, reducing juvenile incarceration and an array of lesser penalties. But juvenile crime dropped the whole while. There was no resulting rampage of criminality sparking a backlash.

When our pal Nate Blakeslee broke the story of sex scandals involving staff and youth at the old Texas Youth Commission back in 2007, the Texas Lege enacted a series of reforms to whittle away the size of the juvie prison population, which dropped like a stone from more than 4,000 when the scandal broke to just more than 1,000 now.

Meanwhile, three years ago the Legislature, led by state Sen. John Whitmire, eliminated ticketing in Texas schools for a host of offenses, a move which reduced the number of Class C misdemeanor tickets issued to students annually by almost 400,000 fewer tickets per year - prompting Huffington Post to declare that, "Texas is doing something genuinely progressive."

Then last year, the Lege moved in a bipartisan fashion to decriminalize truancy.  According to this source:

Officials from the Texas Office of Court Administration testified last month on the effects of the truancy reform legislation and the results are dramatic: Decriminalizing certain truancy offenses, the expunction of 1.5 million prior cases, removal of jail as an option for truancy, and changes to fines. Comparisons of the first four months of 2015 with the same period this year show truancy filings have dropped from 60,000 to 5,000, and parent contributing to non-attendance filings have dropped from 45,000 to 8,200.

So that's 55k fewer truancy filings per year, 37k fewer parent contributing filings, nearly 400k fewer Class C tickets in schools, expulsions down 28% since ticketing reduced, and less than 30 percent as many youth locked up behind bars.

Texas has successfully reduced juvenile incarceration and the overall criminal-justice footprint affecting juvenile life, with juvenile crime continuing to decline the whole time. That's a far bigger deal than the paltry "Texas model" being touted on adult decarceration (based on Texas 2007 adult probation/parole reforms).

How is this transformation of the Texas juvie system not a massive success story that's being trumpeted from the rooftops? And why aren't we talking more about replicating those successes with large-scale decarceration and a reduced justice-system footprint on the adult side?

DOJ should intervene in Harris Co. bail litigation, and other brief notes

Here's a quick roundup of items which merit Grits readers attention even if they haven't made it into independent posts:

• The Houston Chronicle's Mike Ward explained to KUT "Why Texas could close even more prisons."
• A fine for an offense which doesn't exist highlights the absurdity and counterproductive incentives arising from debtors prison policies and practices.
• Jennifer Erschabek of the Texas Inmate Family Association had a column in the Houston Chronicle arguing that "Texas prison reform must get 'smart on people'." 
• Grits contributing writer and Texas Justice Initiative director Amanda Woog had a column on a website called The Conversation titled "Who dies in police custody?," describing how data gathering initiatives in Texas and California are providing a fuller picture of police shootings and deaths in custody for the first time.
• Harris County law enforcement does not use statutory authority to give tickets instead of arresting people for low-level pot offenses, but it's not because of District Attorney opposition, as elsewhere. Rather, it's because disparate computer systems won't support it, according to JoAnne Musick at Reasonable Doubt. "Issuing citations to approximately 14,500 people who could have qualified for cite and release in 2015 alone certainly would have lessened the burden on the jail."
• Texas' new law allowing broader use of life saving naloxone to prevent overdose deaths has been making a huge impact. This news make me even more unhappy about the Governor's veto of related "Good Samaritan" legislation which would have given people immunity from prosecution on drug charges if they called in an overdose to 911, stayed with the victim, and cooperated when authorities arrived. Even more lives could have been saved.
• The US Justice Department intervened in a Georgia lawsuit challenging the constitutionality of money bail. Note to Vanita Gupta: How about joining the Houston litigation?
• News that ramen noodles are a primary currency in prison is a sad commentary on conditions. This reminds me: I wonder if the Victoria County Jail has gone back to hot meals or are inmates still eating cold sandwiches after their nutritionist recommended an expanded menu?

Local #BlackLivesMatter police policy agenda pragmatic, achievable

The missus has been volunteering this year with the Austin Justice Coalition, and I really liked their recently announced agenda on police accountability, which included proposals to:

• Improve Austin PD's use of force policy (or in APD's Orwellian parlance, their "Response to Resistance" policy) by implementing recommendations from the Police Executive Research Forum and prioritizing deescalation during critical situations. There are quite a few specific proposals under that heading.
• Create avenues for the public to have meaningful input in the meet and confer process, which in Austin governs not just pay and benefits but all aspects of police discipline.
• Stop arresting people for Class C misdemeanors for which the penalty is only a fine and incarceration-upon-arrest would be a greater punishment than the maximum sentence. (The Texas Legislature will almost certainly see similar, conservative-backed legislation on this front next year, in response to the Sandra Bland episode and other cases.)
• Stop using police as primary responders on mental health calls.

Grits thought that last item was particularly interesting. AJC recommended moving "mental health first response out of APD. People who call 911 in mental health crisis should be met by mental health professionals, because when the first response is a law enforcement response, too often someone is injured and the next step is jail. Since people in crisis may not behave as expected when issued an officer’s order, nearly a quarter of 'use of force' incidents arise from these calls." The Meadows Foundation out of Dallas has been promoting a similar suggestion, so while that's an extremely substantive reform, it's not really that far outside the mainstream.

All of these are realistic, pragmatic, and achievable suggestions.

AJC is one of the constellation of local groups which have arisen in and around the #BlackLivesMatter movement. Both locally and nationally, the movement has spawned promising policy-focused efforts, like AJC's and Campaign Zero, which hone in on the specific reform questions arising from questionable police shootings and misconduct. Meanwhile, other BLM groups have adopted much more sweeping agendas, some of which stray from the core concerns drawing  crowds in the past couple years.

While the broader agenda may be cathartic to articulate, the narrower, focused ones are more likely to be achieved.  Campaign Zero was a major milestone for the #BlackLivesMatter movement and seeing local groups like AJC embrace and extend that work strikes Grits as particularly heartening. It has been a long time since this writer held out hope for real change at Austin's police department.

How much could local taxpayers save by eliminating arrests for petty misdemeanors?

In Kentucky, legislators are facing a revanchist push by Democrats to overturn 2011 legislation passed by that Republican-controlled body to reduce incarceration levels in local jails. What interested Grits most, though was the remarkable effect their 2011 legislation had on local jail incarceration levels. According to a Louisville TV report:

Jail administrators in Kentucky had urged passage of the 2011 law to cut down on overcrowding, and other advocates said it's a waste of tax dollars to put misdemeanor offenders in jail.

"If they pass this, it's going to reload up the jail with 'minor offense' people who could be out working," said Louisville attorney Paul Gold, adding that it could again lead to people being jailed for small amounts of marijuana. "I don’t see the necessity of this legislation."

Metro Corrections Director Mark Bolton said in an email that the proposed change has the "potential to result in more jail bookings and increase in the average daily population of the jail."

The number of jail bookings in 2010 was 45,161 and the average daily population of the jail was 1,930 inmates, 137 over capacity, Bolton said.

"By contrast, we began to see a steady reduction over the next four years, and by 2014, there were 36,740 bookings with an average daily population of 1,851 (only 58 over capacity)," Bolton wrote.

Thinking through this anecdote for a moment from Texas' vantage point: In 2007, then-Corrections Committee Chairman and prominent DFW-area Republican Jerry Madden passed legislation which similarly made arrests optional for low-level pot possession and a handful of other Class B misdemeanors. In Texas, police can also arrest people for Class C misdemeanors, even though the maximum penalty involves no incarceration but only a fine.

The 2011 bill in Kentucky apparently took a statute similar to Madden's and changed the "may" to a "shall," with the result that local jail bookings in Louisville declined by 18.6 percent. A half-decade later, law enforcement interests have come back to persuade the Kentucky legislature to reverse course. From the same source:

The law currently says police "shall" issue a citation instead of making an arrest for dozens of misdemeanors, as long as officers believe the suspect is not a danger to himself or others and will appear in court to answer the charge. House Bill 250 would change the language to "may" issue a citation.

Certainly Grits hopes this revanchist push by Kentucky Democrats will fail. But seeing this report that Kentucky's Republican-controlled legislature reduced jail populations so significantly with this move makes me think the Texas Lege could likewise reduce local taxpayers' burden from jail costs with a similar change here.

Texas Lege should decarcerate, close prisons to cut TDCJ budget

The Texas Department of Criminal Justice released its legislative appropriations request last week, but declined to identify four percent of its budget to cut as demanded by legislative leadership, reported the Texas Tribune.

Instead, they suggested that, if pressed, they could cut $28 million from their $6.7 billion biennial budget by closing one small state jail in Houston. New executive director Brian Collier told the Houston Chronicle that cutting further would require "reductions in convict health care, meals, as well as prison and parole operations." The Chron helpfully broached the question of whether other units might make the closure list:

Agency spokesman Jason Clark said the state's prisons currently are operating about 2 percent below capacity, with another 2,500 beds mothballed because of a chronic shortage of guards.

Three years ago, the agency closed its first prison in more than a century - the Central Unit in Sugar Land - and since has closed two others.

Perhaps some of those facilities with mothballed beds should be shuttered altogether, if they can't be safely staffed and the beds are laying fallow, anyway.

Senate Criminal Justice Committee Chairman John Whitmire suggested several units in Fort Bend County might be prime targets for closure:

"Yes, there are discussions going on about closing more units. I've been in on them," he said Thursday. "The state has a number of old, inefficient and remote units that we should consider merging or closing to spend taxpayer dollars more efficiently."

On Whitmire's list: Relocate the faith-based transition program at the aged Vance Unit in Richmond to another unit and sell the valuable site for housing development that surrounds it. He also would like to see the state combine or close three Jester Unit prisons nearby and move those inmates to five other state prisons.

Whitmire said he plans to push for additional closures as an alternative to cutting guards and compromising health care, if the mandated 4-percent cut is not rescinded.

That's exactly the right path: In 2011, TDCJ suggested similar cuts to services, particularly to health care, which ultimately had to be rescinded. That episode should have demonstrated to legislators that, in order to make cuts in TDCJ's massive budget - which they boosted just two years ago by $458 million to cover current incarceration levels - they must reduce the number of inmates the agency incarcerates.

There's another batch of prisons Whitmire and Co. should consider for closure next year if closing those prisons in Fort Bend can't be quickly or easily accomplished: Four privately operated state jails have their contracts end in August 2017. Unlike state operated facilities, which take time to shutter and close, the state could rid itself of those expenses immediately upon the commencement of the new fiscal year in September 2018. News that the feds will stop using private prisons perhaps will inspire legislators and the agency to take a second look at this option. That's the quickest, easiest way to reduce capacity and spending.

Most importantly, to sustain and advance this prison-closure trend the Texas Lege must continue along the path to decarceration begun last session by increasing property theft thresholds, a move which has pushed down incarceration levels with no discernible harm to public safety. Reducing penalties for low-level drug possession and other offenses overcharged as felonies arguably is the next step down that path. And Grits would like to see renewed efforts to reduce technical revocations of probationers to prison, a trend which continues to drive high incarceration levels.

Do that and, by 2019, Texas could likely close not just the state jail in Houston and the four private units Grits identified, but also the facilities in Fort Bend mentioned by Sen. Whitmire. Closures primarily make sense coupled with amplified legislative efforts toward broader decarceration, or else they'll turn out to be a short-term fix.

See related Grits posts:

• TDCJ should suggest letting private prison contracts expire to save money
• TDCJ must reduce incarceration levels to cut a quarter-billion dollars
• Pondering potent prison cuts thanks to oil revenue decline
• Which prisons, state jails might Texas close next?
• Which prisons, state jails might Texas close next? Part II

Threats of death coerced false testimony in Waco innocence case

A judge in Waco recommended granting a habeas corpus writ on "actual innocence" grounds in a case which demonstrates the risks of false convictions from plea bargaining and informant practices. A report from Tommy Witherspoon at the Waco Tribune Herald (Aug. 20) began:

Convicted murderer Richard Bryan Kussmaul and the three co-defendants who testified against him 22 years ago are “actually innocent,” and Kussmaul should be freed from prison, a retired state district judge ruled Friday.

Judge George Allen, who presided over Kussmaul’s 1994 capital murder trial, recommended that the Texas Court of Criminal Appeals grant applications for writs of habeas corpus for Kussmaul, James Edward Long, Michael Dewayne Shelton and James Wayne Pitts Jr.

Kussmaul is serving a life prison term in the 1992 shooting deaths of Leslie Murphy, 17, and Stephen Neighbors, 14, in a mobile home near Moody.

At a hearing in July, Long, Shelton and Pitts all testified that they gave false testimony against Kussmaul at his trial because a prosecutor promised them probation and a deputy coerced their confessions by threatening them with the death penalty.

The judge’s findings will be forwarded to the Texas Court of Criminal Appeals, which will make the final decision.

Allen wrote in his four-page opinion that newly discovered DNA evidence that was not available at the time “constitutes clear and convincing evidence that no reasonable juror would have found (the defendants) guilty beyond a reasonable doubt had the new evidence been available at trial.”

Without the DNA, nobody would believe these recantations. With it, and 20/20 hindsight, the grim reality which confronted these four defendants appears as obvious as it does stark. The prosecutor* A Sheriff's detective implicitly or explicitly told these guys: Accuse your friend or we'll kill you. The prosecutor is seeking the death penalty, they'll stick a needle in your arm, and you'll be dead. Or you can bear false witness against your friend and live. You choose. And three of them took the bait. Should we be surprised?

Does anyone imagine that any of the innocence reforms installed in Texas so far would prevent that from happening? Not in a million years. The same incentives and practices which caused these false convictions play out all the time in courthouses across Texas. From a game-theory perspective, the three men made a rational choice, if perhaps a dishonorable one. At the time, this was not a situation in which the truth will set you free.

Texas has done a good job making sure false convictions can be rectified by DNA testing when biological evidence from old cases is available and probative. But there's a lot more to do to prevent false convictions on the front end, particularly with regard to informant incentives and the plea bargain system.

*CORRECTION: McLennan County Sheriff’s Detective Roy Davis, not a prosecutor, threatened the men with the death penalty. However, the prosecutor in the case, unnamed in the story, agreed to the deals the judge criticized on the grounds that they "created a powerful incentive for each of them to falsely admit culpability," while "material inconsistencies between and among [them] ... call into doubt the veracity of those prior incriminating statements."

A judge's writing "tinged with despair"

This is how it feels to serve as the resident voice of reason on the Texas Court of Criminal Appeals:

Debtors prisons and bail reform: TX Judicial Council taking up heady issues

The Texas Judicial Council this morning approved changes to court collections programs aimed at reducing incarceration of low-income Texans due to nonpayment of fines, but not without a fair amount of controversy and substantial changes to the original version of the rules. Buzzfeed published a great story earlier this week describing the backlash of the bureaucrats in response to them.

Texas Supreme Court Chief Justice Nathan Hecht declared that the rules were conceived in response to the USDOJ report on Ferguson, MO last fall. The national Conference of Chief Justices and Conference of State Court Administrators formed national task force on the topic, which includes Justice Hecht. The conservative American Legislative Exchange Council, he approvingly noted, recently adopted a resolution encouraging reform in these areas. And he found it remarkable that support for the changes came from ideologically diverse groups from the ACLU and the Austin City Council to the Texas Public Policy Foundation, conservative state Sen. Don Huffines, and Texas Association of Business CEO Bill Hammond (who just announced he'd retire at the end of the year), all of whom favor reducing the burden from fines and fees on indigent defendants.

Here are the comments on the rules and here is a document articulating how the Office Of Court Administration changed them in response. Grits has not closely enough vetted the changes to judge exactly how watered down the final rules are compared to the original version. (I emailed our friends at the Texas Fair Defense Project for an assessment and will update this post when I hear back.) But judging from the continued pushback, it appears they've retained some teeth. The chief justice pushed through the changes despite naysayers in the peanut gallery, not to mention a few "no" votes on the council who wanted to re-publish the amended rules. They take effect January 1st, 2017, though some courts have pledged to adopt them as soon as Sept. 1st in order to help the OCA evaluate how they work in the field.

Related: From Texas Monthly, "Texas has a debtors prison problem." Good article, which mentions a related analysis from Houston of which Grits was unaware:

In May, a committee organized by Mayor Sylvester Turner released a damning report that found that the city uses its municipal court “as a profit center.” Of the court’s 169,000 convictions in 2014, only 2,800 were given the option to pay their fines through community service, and only six cases saw their fines waived. As the report notes, nearly 25 percent of Houston’s population is below the poverty line, and they estimated that “at least 30,000 people” should have been given the option of community service. “Attempting to finance the city budget on the backs of the poor criminalizes poverty and destabilizes lives, ultimately doing more harm than good,” the report found.

Pretrial/bail recommendations coming
The Judicial Council also heard from its Criminal Justice Committee which will make recommendations in October related to the bial system. Twenty five years ago, opined the chair, 32 percent of jail population were presumed-innocent people being held pretrial. Today that number is 75 percent, he said. According to the Texas Commission on Jail Standards, the average cost per day to house these inmates is $60.12. At that rate, it costs more than  $1 billion per year for pretrial incarceration, or around $2.5 million per day. He called the situation a "perfect storm ready for change."

Researchers from A&M are doing a report on Tarrant and Travis Counties, he said, and their findings so far corroborate the idea that far fewer people could be jailed pretrial without harming public safety..

In October, the committee will release recommendations suggesting that the Legislature require misdemeanor defendants to be assessed with valid risk assessment instrument prior to appearing before a magistrate. There should be a presumption through statute for pretrial release on personal bond, leaving judges with discretion to decide the evidence before them rebuts that presumption. They hope the new system would allow release of "high numbers of people who have little risk of reoffending and little risk of flight." The Lege should pony up to fund supervision for pretrial defendants and magistrate training, he opined. The Court of Criminal Appeals would create rules to implement these processes.

Related: From the Houston Chronicle, "Bail system is unjust and undermines public safety."

Judicial Council Lege agenda
The council reviewed areas where they intend to make legislative recommendations next year, though nothing has yet been finalized. Here's the list of resolutions they're considering.

Dallas eliminates special protections for officers after police shootings

Great news out of Big D, where police accountability activists scored a major victory this week. Reported the Dallas News (Aug. 18):

The Dallas Police Department has discontinued its policy of waiting 72 hours to interview officers involved in police shootings.

The announcement came late Thursday as part of the department's response to a 14-point list of demands made by the Next Generation Action Network. The group has railed against police brutality nationwide and called locally for more community oversight in officer-involved shootings.

"Effective immediately, every officer will be provided the same legal rights as any other citizen who is the subject of a criminal investigation," the department said in a statement. ...

The department's policy had given officers 72 hours before they were asked to make a formal statement to detectives in the special investigations unit, which studies all assaults and shootings involving police officers.

Regular readers may recall Grits blasted that policy when DPD enacted it in 2013, so this is welcome news. Grits can't immediately tell from the coverage if the change applies to all misconduct allegations or only shootings, but the former would be preferable to the latter.

The question immediately arises: Might other Texas jurisdictions follow suit? The answer is maybe, it's complicated.

Dallas Chief David Brown could do this unilaterally because  their negotiators did a better job retaining power over the disciplinary process in their "meet and confer" (read: collective bargaining) agreement with the local union than, say, their counterparts in Austin or Houston.

The Dallas agreement (pdf, p. 7-8) does not dictate that agency's disciplinary process the way Austin's does. Instead, it specifies that, "the City shall retain the sole, exclusive and vested right, prerogative, power and authority to ... establish, eliminate, modify, review, and enforce rules and standards governing job performance, personal conduct and appearance, uniforms and equipment, safety, training, education, attendance, discipline, and efficiency ... [and] the right to establish, abolish or modify processes and procedures for investigating and reviewing Officer conduct and complaints relating to that conduct."

Under their situation, the chief can make that decision unilaterally.

By contrast, Austin's meet and confer agreement (pdf) is much more detailed and dictates every detail of the disciplinary process. When Austin PD interrogates cops over misconduct, they receive an array of special protections which don't apply to average citizens.

For example, not less than 48 hours before an Austin police officer must give a statement to investigators about alleged misconduct, he or she must be provided with "a copy of the complaint(s)," as well as any additional allegations discovered by investigators which are not included in a complaint. The officer and their attorney may also "review the portions of any document(s) in which it is alleged that the Officer provided false, incomplete, inconsistent, or conflicting information, or in which it is alleged that the Officer omitted information in violation of any law or Department policy," as well as "any report, supplement use of force report, or other statement recorded or written by the Officer, setting forth particulars or facts regarding the operative conduct which is the subject of the allegation(s). In addition, officers are also "provided an opportunity to review any videotape, photograph or other recording of the operative conduct or alleged injuries, if any, which is the subject of the allegations if such a recording is within the possession or control of the Department."

In Houston, by contrast, their 48-hour rule is enshrined in HPD's stand-alone section of the state civil service code. There it dictates that officers receive notice 48 hours before being subjected to interrogation under the statute. But their meet and confer agreement goes further, letting officers see copies "of the statement/affidavit/complaint that serves as the basis for the complaint by the complainant at the time the 48 hour notice is given," as well as any "written statements or affidavits received or gathered by the investigative authority from witnesses, officers or supervisors obtained during the investigation before the officer's interrogation."

Imagine these same protections being applied to regular criminal defendants. Basically, the stuff the Michael Morton Act says most defendants get to see after they're formally charged, Austin and Houston police officers get to see before they're ever even questioned by investigators. As a former GOP DA candidate in Dallas, Toby Shook, said when their policy was enacted, "Police detectives often get very damaging statements from suspects shortly after the incident. At trial if the defendant’s story changes the prosecutor quickly argues to the jury that the defendant has changed his story and is lying." Police officers, however, are held to a far lesser standard and those sort of "gotcha" tactics don't apply to them.

Bottom line: the new Dallas rule is a good one but some other jurisdictions may be prevented from implementing something similar without revisiting the subject in their meet and confer contracts. Chief Brown could accomplish this quickly because past collective bargaining agreements did not tie his hands on officer discipline. Other departments which weren't as wise must wait until their contracts expire before it's possible to follow suit. When that happens, they should seek contract language closer to what's in the Dallas agreement.

RELATED: On the limits of enacting police reform through union contracts.

On the limits of enacting police reform through union contracts

San Antonio Mayor Ivy Taylor went to the meet-and-confer negotiating table this spring with seven requests related to police accountability, reported the Express-News (8/15). A city council member labeled two of the reforms "critical."

A police chief “needs to be able to rely on prior discipline to determine punishment,” the first request read, “so it may be presented to show progressive discipline in arbitrations.”

When an officer appeals his or her punishment, it triggers an arbitration process that proceeds like a trial. And arbitrators often reduce punishments; in the past seven years, they overturned or reduced five of 13 disciplinary rulings on appeal. All five were terminations, according to city officials.

The current contract limits how far back a police chief can invoke prior misconduct in arbitration: 10 years for drug and alcohol-related issues, five years for acts of “intentional violence” and just two years for all other misconduct.

“An entire officer’s discipline record should be allowable,” the request concluded.

The second reform: “Remove Requirement to Reduce Agreed Short Suspensions to Reprimands.”

Currently, suspensions of three days or less are automatically reduced to written reprimands after two years — a mechanism that [one city council member] says has amounted to “altering” police records.

“Suspensions need to remain on the record to accurately report an officer’s history and show progressive discipline in arbitration,” the city’s request to the union stated.

But the union "flatly refused to entertain the requests for reform" and so none of them got in.

Police union contracts have been targeted by the Black Lives Matter movement as a potential vehicle for improved accountability. However, this episode shows the limits of attempting to effect police reform in Texas through meet-and-confer negotiations, which in practice give the local police union veto power over any and all changes.

That said, there is more than one way to skin a cat. Austin had similarly witnessed officers frequently having their terminations overturned by an arbitrator until the department finally adopted a change for which local advocates had pushed for more than a decade: Creation of a disciplinary matrix in the APD policy manual which specifies punishment ranges for significant misconduct.

Arbitrators frequently overturn police officers' firings on the grounds that other, similarly situated officers were not punished in the same fashion. But a disciplinary matrix creates a range of prescribed punishments which arbitrators may presume to be reasonable.

The ability to make firings stick is a key part of confronting what's been called "a departmental culture which protects its own and is unwelcoming of supervision" in San Antonio. Keeping police misconduct on the record when the department makes personnel and promotion decisions helps keep bad apples from remaining on the force or even entering management just because they've hung around for a long time.

These are modest reforms at best but even they were too much for the union and the city didn't go to the mat on the issue the way they did on the Evergreen Clause. Certainly there was no effort to tie wage and benefit hikes to the union's acceptance of a (slightly) stronger disciplinary process.

It's possible the Mayor could have gotten more if there was significant community organizing backing her effort. As things stand, the public didn't know about her police accountability proposals until after they'd been rejected. Rallying the public in support of her proposals would have boosted the likelihood of success. Even so, I'm glad to see her making an effort when no one's looking. If she's serious about the topic, she'll find other opportunities to address it going forward.

'Distortion of Justice: How the inability to pay bail affects case outcomes'

People who can't make bail are 13% more likely to be convicted, with the difference made up of people pleading guilty who otherwise would have been acquitted or had charges dropped, according to an article posted on SSRN last month with the above title by Megan Stevenson of Penn law school. Here's the abstract:

Instrumenting for detention status with the bail-setting propensities of rotating magistrates I find that pretrial detention leads to a 13% increase in the likelihood of being convicted, an effect explained by an increase in guilty pleas among defendants who otherwise would have been acquitted or had their charges dropped. On average, those detained will be liable for $128 more in court fees and will receive incarceration sentences that are almost five months longer. Effects can be seen in both misdemeanor and felony cases, across age and race, and appear particularly large for first or second time arrestees. Case types where evidence tends to be weaker also show pronounced effects: a 30% increase in pleading guilty and an additional 18 months in the incarceration sentence. While previous research has shown correlations between pretrial detention and unfavorable case outcomes, this paper is the first to use a quasi-experimental research design to show that the relationship is causal.

Best Practices: Police training, policies should prioritize deescalation, get rid of the '21-foot rule'

This morning, Grits took some time to examine more closely the Police Executive Research Forum's 30 guiding principles on police use of force, released this spring. The goal of the document was to "make policing safer for officers and the public they serve—and, in the process, restore public trust and advance as a profession." Here are some salient highlights.

First, "There is a lack of complete and reliable national data on police use of force," the report noted, and until the feds improve national data, private data from sources like the Washington Post and the Guardian are the best we've got. They advocated data improvements along the lines recently suggested by the USDOJ. (I'd be interested in reading any comments PERF submits in response to the recent Federal Register announcement.)

Notably, PERF guidelines don not apply to cases where "the person who died was shooting at officers or someone else" or where "the person was pointing a gun," which according to the Washington Post accounted for 59 percent of fatal police shootings in 2015. Rather, they're focused on reducing deaths in very specific situations:

Several Hundred Officer-Involved Shootings Last Year
Did Not Involve Subjects with Firearms
Regarding non-firearm encounters, the Washington Post data indicate the following:

• In approximately 25 percent of the 990 fatal officer-involved shootings in 2015, the subject displayed signs of mental illness.
• In 16 percent of the cases, the subject was armed with a knife.
• In 9 percent, the subject was unarmed.
• In 5 percent, the subject was “armed” with a vehicle.

It is in these types of cases, representing as many as one-third of the annual total of fatal officer-involved shootings, that leading police executives believe there is significant potential for de-escalation and resolving encounters by means other than the use of deadly force.

Broadly, PERF recommended "discontinuing outdated concepts, such as use-of-force continuums, the so-called “21-foot rule,” and the idea that police must “draw a line in the sand” and resolve all situations as quickly as possible." (bold in original)

Animation by Grits for Breakfast

The repudiation of the 21-foot rule is a particularly big deal. Many, many shootings over the years have been justified by this particular bit of misinformation, with officers pretending that, once a suspect was within that 21-foot range, they had no choice but to shoot. Another recent PERF report on police training practices addressed that misconception directly:

Police  chiefs at PERF’s  May 7 conference said that  the 21-foot rule has sometimes been used wrongly to suggest that if a suspect moves to close the  distance  between  himself and the officer, the officer can shoot the  suspect and cite the 21-foot rule to justify the use of deadly force. This is the wrong approach, they told us at our meeting. The  21-foot rule should never be seen as “a green light to use deadly force” or a “kill zone.” 

Rather, officers should be given broader training in sound decision-making, de-escalation strategies, and tactics for creating time and distance, so they can better manage the incident without needing force.

The report cited examples from Northern Ireland regarding alternative ways to deal with a knife-wielding suspect besides shooting them:

Police Service of Northern Ireland Sergeant Dave McNally:
Our Officers Are Seldom Required To Use Firearms Because They Have Other Options

It’s a consequence of the terrorist threat that our police officers are all armed with a handgun, which isn’t the case in Scotland, England, and Wales. Our officers are armed for their protection, but there are many, many circumstances that routine officers respond to—domestic disturbances, robberies, burglaries—where they are not required to use their firearms because they have other options available to them.

I can’t think of an example where a police officer in Northern Ireland has had to use live rounds against an individual with a knife or a bat. There are numerous calls to those individuals that are dealt with daily by routine officers, armed only with a handgun for personal protection. There are numerous calls on a weekly basis. I can’t think of an example where officers have had to open fire.

Feds will begin closer tracking of deaths in police custody

Good news: The DOJ plans to begin comprehensively tracking shootings by local police. See their notice in the Federal Register. Find explanatory coverage here:

• NY Times: Justice Department to streamline tracking of police killings
• Vox: The federal government is finally making police report every time they kill someone
• The Guardian: Police will be required to report officer-involved deaths under new US system

Amanda Woog, who recently released her curated database of Texas deaths in custody since 2005,  spoke with Texas Public Radio about the development. Notably, Texas' new reporting requirement on police shootings helpfully includes non-fatal incidents, so the data she's gathering going forward is broader, even, than what the Justice Department has suggested.

Related:

• Podcast: New Texas death-in-custody data online
• Why the increase in number of Texans shot by police?
• Journalist's Resource: Deaths in police custody in the United States: Research review

TDCJ should suggest letting private prison contracts expire to save money

Grits and others have suggested that Texas could close more prison units to meet budget-cut goals set by the legislative leadership, and here's another datapoint supporting that suggestion from TDCJ's "high value data set" (xls), which Grits mentioned in a footnote yesterday.

According to that quarterly data source, there were 146,968 inmates locked up in TDCJ as of June, down 3,816 from the end of FY 13. That's plenty for TDCJ to shutter at least one or two units. And the easiest method would be to let a private-prison contract or two expire.

There are four state jails whose contracts expire Aug. 31, 2017 which conceivably could be targeted for closure if current incarceration levels 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)

Ending all of these contracts becomes an especially enticing option if the Lege were to ratchet down drug penalties a notch, making low-level drug possession (less than a gram, or ideally .02-4 grams*), a Class A misdemeanor and relieving thousands of drug-possession offenders from the yoke of state-jail imprisonment and long-term felony status. State Rep. Senfronia Thompson suggested that change in 2015, and the Legislative Budget Board estimated that, "In fiscal year 2014, 7,293 people [convicted of possession of less than a gram of a controlled substance] were admitted to state correctional facilities and 7,682 were placed on felony community supervision." 

That would be a big enough reduction to let all these contracts expire. LBB estimated such a change would save $105 million in the first two years and $314.4 million over five years. The Lege could share some of the savings to bolster local probation departments - who would henceforth be supervising both more probationers and  more needy ones - while still logging substantial near-term savings.

TDCJ has been asked to cut a quarter-billion dollars, so $105 million over two years is just 40% of that. It's significant, but not enough to cover the budget cutting goals laid out for the agency by the state leadership. It'd be a good faith start, though, and well worth the effort.

When Texas last faced a major budget crunch in 2011, TDCJ chickened out and pretended they could cut prisoner healthcare, food, and other core costs that really weren't viable solutions. Former executive director Brad Livingston didn't have the guts to tell the Lege, "the only way you can cut nine figures in our budget is to incarcerate fewer people." And so the politicians ended up cutting the wrong things. And they still imposed prison closures on the agency, only against its will instead of with its cooperation. (I seriously doubt the Central Unit would have been high on the agency's closure list, for a variety of historical and logistical reasons, for example. But TDCJ removed itself from that debate by refusing to contemplate prison closures, therefore its opinions were excluded from many of those conversations.)

This time, let's hope TDCJ brass tells the Legislature the hard truth: You can't reduce spending by those amounts without reducing incarceration. Then they should offer realistic suggestions that would do the trick. The union would support them. And there are several units the agency could close which have been nothing but headaches for TDCJ management (with the Connally unit perhaps topping the list).

In 2011, TDCJ's appropriations request adamantly refused to suggest viable solutions and thrust the problems back on legislators. This time, they should learn from their mistakes, cooperate with legislators and help them govern by giving them a realistic path to achieving sustainable cuts, not a guided tour through some Potemkin village that dissipates when supplemental-appropriations time comes around at the beginning of the next session.

* Making .02-4 grams a Class A misdemeanor, going a little further than Chairwoman Thompson, would be Grits' preference for changing the law in 2017. Current Texas law makes possession of less than a gram a state jail felony and 1-4 grams a third-degree felony. But up to four grams is still user-level possession and most people convicted in that range are addicts, not dealers. The amount of drugs possessed by a user when arrested isn't a reasonable way to distinguish punishment between those two cohorts of defendants. And going this route would save quite a bit more money, particularly in the out years. Meanwhile, when there's less than .02 grams of  evidence (trace cases), agencies should be forbidden from seeking charges because, after the state does its labwork, there's not enough left for the defense to re-test under Sixth Amendment "confrontation" requirements.

The new phone books TDCJ statistical reports are here

Grits reacts every year to the release of TDCJ's annual statistical report with more or less the same level of enthusiasm with which Steve Martin's character greeted the issuance of new phone books in The Jerk. Finally, the report for FY 2015 has been released. Check it out here. 

Notably, the report recorded TDCJ housing 148,146 prisoners as of Aug. 31, 2015, down more than 2,000 from the prior year and down 8,000 since 2011, when the inmate population totaled 156,522. (See reports from prior years here - scroll down.) That's low enough to close at least one more prison unit to help with budget savings.*

The annual statistical report gives data on prisons, state jails, probation, and parole for FY 2015, which ended Aug. 31 of last year. So I fail to understand why it takes nearly 12 months to produce this publication. Doing it that way means policy makers must rely on information that's at-a-minimum one-year old, when really TDCJ tracks all these data more or less in real time.

Now that TDCJ is under new management, they should work on getting this document out much quicker in the future. There's no reason a snapshot of data ending August 31 couldn't be released before the new year instead of 11-12 months down the line.

Related: See also FY 2015 data on the Texas judiciary, which the Office of Court Administration released earlier this year. Gathering data from every judge in Texas is MUCH more difficult than a single corrections agency compiling its own information on prisoners' comings and goings. If OCA  can produce the annual judicial stats more quickly, there's no reason we should have to wait this long for TDCJ to release its numbers.

* N.b., the inmate population has continued to decline since then. According to TDCJ's "high value data set" (xls), which is a master-list of prisoners updated quarterly, as of this writing (8/10) there are 146,968 inmates locked up in TDCJ.

Willful blindness at internal affairs and why Austin PD hasn't embraced community policing

Austin PD last week released a massive report by the Matrix consulting group (uploaded here) evaluating the department's staffing in terms of its focus on community policing. (See coverage from the Statesman.)  This morning, Grits took a moment to read through portions of the document. Here are some items which jumped out.

First, Grits found it striking that APD's Internal Affairs unit seemingly intentionally keeps its records in such a way that it cannot perform basic data analysis.

In 2014, 1,116 people contacted the [Office of Police Monitor] to file a complaint. Of those, 582 were actually filed as complaints. The rest were either supervisor referrals (305) or not deemed sufficient to investigate. These statistics are compiled by the OPM. Internal Affairs logs all investigations, but does not have the capability of data retrieval based on type of complaint. The OPM does keep records on complaints filed by racial/ethnic groups while APD Internal Affairs does not because the software being utilized does not allow retrieval of data based on specific queries. As a result, if data is required, a hand search of files must be accomplished.

The consultant framed this as a need to "evaluate the software" IAD uses, but that's the least of the problem. They should also evaluate managers and commanders over them who felt they could effectively oversee the division without basic data-retrieval systems. Sometimes information-gap failures occur because of inadequate software, and sometimes they occur because to generate data would enable uncomfortable analyses to be performed and questions to be asked. Reading between the lines, that's what's been going on at APD internal affairs.

In addition, since the 1990s APD has had a much-touted "early warning system" that's supposed to flag potentially problematic officers for review by Internal Affairs. But we learn from the consultant that it mainly focused on triggers "such as use of sick time, use of force, and internal affairs complaints." That's not an "early warning" system at all! That's post-hoc notification after something has gone wrong. "Early warning" implies that you're trying to identify problems before they arise.

Probably because it was apparent Matrix would make some recommendations on this, now the early warning trigger "is being changed to include the number of drunk arrests, assault on a police officer arrests, and resisting arrests." It would behoove the agency to be a lot more aggressive and sophisticated about their early-warning mechanism. The version used until now sounds simplistic and ham-handed, bordering on worthless if the goal is to reduce officer misconduct or improve community relations.

The main focus of the report was to evaluate community policing in the department. But a cynic might be forgiven for imagining it was created more to justify additional, unpopular and expensive increases in sworn staffing, despite the gaping holes in APD's non-sworn ranks which desperately need filling. (The scope of the consultant's work did not evaluate those functions or take APD's broader management responsibilities into account beyond patrol.)

As noted in the report's introduction, "Full implementation of [the] recommendations would require significant investment ... as a result of adding more officers." And the main recommendation was to hire far more additional street cops than the council's draft budget had envisioned. The consultant recommended adding more than 100 new sworn officers in the next budget. The city manager's version would add 12, plus 21 new civilian positions.

Beyond staffing, the consultant's top findings: "'Community Policing' is not the coherent philosophy and strategy in the Department that it needs to be," and "internal support for community policing in the Department" presently is not "consistent with these strategies" from the mission statement on down. (Breaion King could have told you that!) Isolated internal efforts toward a community policing philosophy are "not supported by strong policies, human resource and management strategies and leadership," they found.

That part about policies and management not supporting community policing is particularly evident in the department's use of force policy, which encourages escalation instead of deescalation. If policies don't reflect community policing philosophies then neither will training, which invariably will be designed to implement the policy. One of the recommendations notes that APD trainers and academy personnel need train-the-trainer training on community policing, so they seemingly have little-to-no in-house expertise on the topic at all. The consultant is describing a management failure, not failings by cops on the beat.

The consultant could see no way to address this situation but to hire more officers. Supposedly because of understaffing, they found that "Patrol resources have limited opportunities to be more proactive – proactivity levels are at an overall level of approximately 22%, which is less than the typical 35% ‐ 45% considered an effective level of patrol service." That number varies by district - downtown, for example, proactivity rates run closer to 70 percent. In many residential areas, by contrast, police are mostly responding to calls.

Not mentioned in the report is the fact that APD patrol spends about 12 percent of its time responding to residential burglar alarms - the most unproductive part of the officers' jobs besides bathroom breaks. The city could free up officer resources by eliminating those corporate subsidies instead of hiring more sworn staff, but that more efficient, less expensive possibility was never broached.

Buried deep in the 239-page report, though, where no one who only read the recommendations would ever see it, was an intriguing observation which deserves to be explored more fully:

Overall, at 116.5 minutes  of  workload  per  call  for  service,  the  average  time required to handle incidents is very high in comparison to other agencies. The average backup unit handling time of 57.7 minutes, in particular, is much higher than the typical norm. Combined with a backup rate of  about 1.1 additional responses per call, each call represents a significant amount of time that must be staffed, in addition to resource needs that must be met in order to achieve a targeted level of service. (p. 83)

Why is Austin's  per-call time spent "very high" compared to other departments? Why does APD assign backup on so many more calls than other departments? And why are backup units spending an hour per call when that's not the practice elsewhere? These questions remain unanswered. The consultant noted the issue in passing but failed to suggest strategies to reduce those times or even provide a framework for how to judge them.

If you need more officers for community policing, there are several ways to get them. E.g., the city council could eliminate superfluous officer duties, like responding to residential burglar alarms. The city could move mental health first response out of APD altogether - an idea being promoted by the Dallas-based Meadows Foundation that could save a lot of officer time, reduce the number of use of force incidents, and connect people with services in the community instead of jail.

APD could free up officer time by reducing the number of low-risk calls to which backup is sent, or the excessive time spent per backup call. They could seek out strategies to reduce the "very high" average time spent (nearly two hours) in response to typical service calls. Or they could reduce or eliminate certain types of arrests for which statutes give officers discretion simply to ticket, like for Class C misdemeanors, low-level marijuana possession, and driving without a license. Those strategies would free up many hours of officer time for community policing, but, giving credence to cynics' imaginations, the only solution the consultant could only come up with was 'hire more cops.'

Finally, I thought this recommendation was a clever idea: "Implement a requirement that trainees complete a neighborhood portfolio that analyzes a specific area of the city, which will not only create a useful database for Community Policing activities, but will establish the foundation for partnerships between the community and the Department." That would be an interesting project.

There's lots more in the document but these were a few things which jumped out at Grits upon first glance. Interested readers should check it out for yourselves and record any additional observations  in the comment section.