Saturday, December 31, 2016

Top TX criminal-justice story of 2016 easy to spot; the rest are debatable

Looking back at the grotesquery of a year which was 2016 to choose the most important Texas criminal-justice stories, it's not hard to pinpoint the #blacklivesmatter protests surrounding police shootings over the summer - and the murder of five police officers in Dallas by a lone-wolf sniper at a protest - as the most important moment from a reform perspective, not just for Texas but arguably the nation.

The Dallas shooting and a handful of other ambush killings of police, including the murder of a San Antonio police officer while parked right outside the station house, bumped up the number of police officers' on-the-job deaths slightly in 2016, both in Texas (19) and nationally (135), though in historic terms the number remained half of its 1970s peak. Police in 2016, by contrast, killed nearly 1,000 people nationwide, down slightly from 2015. In Texas, we learned from the Dallas News, the number of police shootings has grown steadily over the last few years, led by increases in Houston, San Antonio, and, of course, Fort Worth. And that was before we learned that some 200 fatal Texas police shootings over the last decade had been left out of the data. The issue of police shootings hasn't been as partisan in Texas as elsewhere, with folks like Rick Perry and Dallas-based media mogul Glen Beck offering sympathetic sentiments toward #blacklivesmatter activists. It was a fascinating year on this front and debates surrounding these topics were the hottest in criminal justice.

At the Texas Tribune, reporter Jonathan Silver offered up a top five list of Texas criminal justice stories in a 2016 retrospective, but only the two related to this summer's protests and shootings would have made my list. He included the murder of a TDCJ corrections officer, which I agree was chilling and terrible. But Grits would bet most Texans are unaware of it and I'm unaware of the incident spawning significant discussions of policy change. Meanwhile, the Texas AG so far this year has recorded 351 deaths in custody in Texas prisons alone, with more still to be reported from the end of the year. (Usually, unless family gets involved, inmate deaths receive no MSM attention at all.)

Silver thinks the much-touted drop in county jail suicides merits "top 5" status, but these small numbers vary widely from year to year and Grits thinks it's WAY too early for the state (or the media on their behalf) to claim credit for fixing that problem - certainly if the change in a bureaucratic form is the only thing to which anyone can attribute the drop. Routine fluctuation might equally explain it, just as likely, and we really can't know yet one way or the other.

Finally, Silver claimed fallout from the new open carry law merited a "top five" story, and for Grits it likely wouldn't have made a Top 25 list.

So what were the other biggest stories of the year from Grits' perspective?

Big-league bail reform push
Bail reform litigation in Harris County is challenging the fundamental constitutionality of judges using a bail schedule instead of assessing the particular situation of individual defendants. In part in response to this litigation, but also thanks to Chief Justice Nathan Hecht, the Texas Judicial Council took up the banner of bail reform and legislation is expected to be filed in the new year to expand the use of risk assessment tools and personal bonds by judges. While advocates are worried the legislation may be toothless - the fight will likely be how to make it as strong and functional as possible - support from top state leadership means something is likely to pass.

Austin DNA lab becomes poster child for forensic error
Somewhere in the top five one must find space for the closure of the Austin PD DNA lab and the admission by the state, via the Forensic Science Commission, that most labs had been misinterpreting DNA mixture evidence for many years. While other labs didn't have staff so recalcitrant that DPS found them untrainable, thus making Austin unique, many other labs were similarly misinterpreting DNA mixture results, including at DPS. Fallout from the need to recalculate results from thousands of cases - for which defendants in most of them have never even been notified of the problem or afforded counsel to assess their situation - is truly mind boggling and far reaching. Even more amazing: The same mistakes were made everywhere in the country, not just in Texas. Texas is just the first state to formally own up to the problem, but what's happening here foreshadows developments in every other state and likely internationally, since many of the best forensic scientists in other nations train here.

Kangaroo court in Waco
Though this blog hasn't covered it as closely as I should, Grits would include the ongoing travesty of justice in Waco in the aftermath of the 2015 Twin Peaks biker shootings in the five biggest stories of the year. The DA and local judiciary have conspired to trump up cases against dozens of bikers against whom they have zero inclulpatory evidence and then dragged out proceedings for more than a year without dismissing the BS cases. There's hardly a pretense anymore of justice being served, DA Abel Reyna is engaging in what amounts to petty bullying. The courts so far have backed the DA, but not yet on the challenges where he's most vulnerable, the denouement of which we may happily expect in 2017. Still, when this is finished (years from now, following the exoneration of most defendants and what will likely be successful civil litigation), Grits believes the episode will give the town an even worse black eye than the sexual assault allegations against Baylor football players, although the latter is presently a bigger deal nationally than the former.

Tattoo You: A new breed of Texas DAs
Finally, District Attorney elections in Harris and Nueces Counties must nudge their way into Grits top five because of their potential historic import. The change in Harris was part of a generalized partisan rout, with Dem judges and a new DA sweeping all the countywide offices. In Nueces, though, reformer Mark Gonzalez running as a Dem - a criminal defense lawyer with "Not Guilty" tattooed across his chest - was elevated by voters in a county that went for Donald Trump. In general, District Attorneys in Texas' largest counties these days are a lot less hard core and more likely to be sympathetic to reform than just a few years ago. This represents an opportunity for reformers, both because these new DAs themselves might do good stuff, and also because the opposition coming from prosecutors to statewide reforms may be less likely to speak with one voice.

Honorable mention for top stories:
  • Democracy failing us on judges: Court of Criminal Appeals elections are a joke and one of the court's best judges, Elsa Alcala, says she'll decline to run for reelection in 2018 rather than subject herself to them again. IMO Alcala was Gov. Rick Perry's very best appointment, out of thousands. In a different time and place, this traditional-conservative Latina Republican judge married to a former Houston police officer would be on a GOP short list for the US Supreme Court. That instead she's walking away from politics in disgust says something sad about the state of both republicanism and Republicanism in Texas.
  • When judges choose convenience over law: Texas is not following the constitution when it comes to vetting pro se habeas corpus pleadings, we learned from one of Judge Alcala's opinions. There has been no MSM coverage on this, and it's unclear who could provide any remedy since these are state habeas petitions, but from a systemic perspective it's a big deal.
  • Looming crisis: The Dallas police pension may bankrupt the city; Houston's not far behind.
  • Innocence matters: The San Antonio Four were declared actually innocent. And the underlying flawed forensics behind Harris County drug exonerations was revealed. Meanwhile, Texas Exoneration Review Commission finished up its work and issued recommendations. Two legislators - Rodney Ellis, now a Harris County Commissioner, and Ruth Jones McLendon, now retired to private life - deserve immense credit for pushing for the commission last session. Now it's up to advocates and the Lege to make them happen.
  • Declining executions: The number of Texas executions plummeted this year to historic lows in 2016, in part thanks to 2015 legislation (SB 1071) requiring prosecutors to notify the defense when they seek to set executions. Most of the MSM coverage hasn't mentioned that piece, though the Texas Tribune brought it up in September, but it's definitely been a factor.


Tom said...

I represented a person who, I think, was one of the first non-drug exoneration. As I recall, the arrest was about 8 years before the test. I never found the client but he had been sent to the pen on an unrelated case for which he probably would have gotten probation but for the earlier drug conviction.
Judge Ruben Guerrero (who retires today) appointed me to file a writ and I did. The Crim. Apps. granted relief and the case was dismissed.
The client probably still doesn't have any idea he was exonerated even though his case was the subject of a page one story in the Houston Chronicle.
Part of the problem could be easily solved by granting personal bonds to people charged with possession of small amounts of drugs, especially where they are automatic probation defendants. That way, they wouldn't have to rot in jail for weeks or months waiting a lab result.
The quick plea system in Harris County started in the 1970s as part of a federal suit over jail overcrowding. The idea was if someone was guilty and going to get probation, get him in front of a judge who could do it the next business day. That empties the jail. No one ever thought an innocent person might plead guilty to get out of jail or that the DA's office would start making "today only" offers hours after an arrest.

Anonymous said...

Given Houston is reforming their pension systems, I'm not sure why you believe it is right behind Dallas in bankruptcy, at least as long as the legislature signs off on the matter. By lowering the rates of return needed, cutting benefits so much, and establishing full yearly funding with a provision to limit future losses, I'm in agreement with Rice's Kinder Institute, the bond rating companies, and The Arnold Foundation in thinking Houston may soon have the best funded pensions of the state.

Gritsforbreakfast said...

@1:22, Houston's reforms rely on BS economic projections pretending the average annual rate of return will be 7 percent, a figure they adjusted downward from 8 percent. Since the real figure is likely to be 3-4 percent, as discussed here, the proposals floated so far won't actually cut it. Sorry, it's not true that Houston's police pension will be fully funded if the deal passes. If wishes were horses, beggars would ride.

Anonymous said...

Houston's three pension proposals all have corridor provisions that require further benefit cuts if they do not achieve the needed returns. While none of them will be fully funded on day one should the legislation pass, given the ARC funding and corridors, I think they will be better off than any other major city in Texas within a few years. If the legislature changes the deal in favor of the unions, that could change but otherwise, bankruptcy seems unlikely.

Gritsforbreakfast said...

Dallas is quite close to bankruptcy, as I mentioned, 9:12. And pretending returns will be twice as high as they really will is a good way to make Houston's plan unsustainable, too. If lower returns would result in benefit cuts (that hadn't been reported and I haven't seen the written deal), then that would help with solvency. But at that point the unions scream holy hell and your suggestion that the pols might alter the deal in their favor comes into play.

I hope you're right that this deal will solve things. The basic, topline math being reported, though, doesn't add up.

Anonymous said...

this is 9:12. I don't pretend to be an expert but the experts at Rice University and elsewhere agree that Houston's plan is reasonable. The employee unions have already raised hell over the amounts of cuts and the corridors have been widely publicized but here is a link for you to glance at that might explain it in terms you'll understand.

Regarding the 7% returns, each of the three funds has achieved more than that over the last ten years. That time period includes the crash so I don't think that is the biggest danger to the deal working out, that would be reserved for those wanting to tinker with the arrangement prematurely. But if you don't care to know all the details, feel free to focus a moment on the paragraph about shared sacrifice that explains how future losses translate to benefit cuts.

Txbombshell said...

@Grits, a correction, the TDCJ officer was 50-something, not 21. The inmate that murdered her is 21 years old.

Gritsforbreakfast said...

Thanks bombshell, I'm sorry for the error. Fixed it.

@9:12/6:00, I'm not an expert either. But the link you gave said specifically that the numbers "work" only if you're "assuming the 7% return on investment works out." That's not realistic. (See here.) Moreover, you WAY overstated the deal in your earlier comment, which makes me skeptical of your other rosy assertions. The deal does NOT "require further benefit cuts" if revenue falls short, according to the link you provided, but says only that they'll reenter negotiations (with no required outcome).

So no, nothing you've said convinces me the Houston deal will solve the problem so long as they overestimate revenue to make the model work. And it's not that I don't want to know or don't understand - just that I believe math before politicians, or anonymous blog commenters.

Unknown said...

Scott, I share your posts on my Facebook page nearly every day. On occasion, you come up with a subject that is somehow a little too left of center for me, but that doesn't make it any less important for someone else, and I realize that. My readers and I are focused on the unfair and unjust judicial system in McLennan County (Waco), and are always glad to see you post on that subject. We trust your word, knowing that you answer to no man other than yourself. With 'mainstream media' tearing its own self down, and local media possibly fearing reprisals from their county 'powers that be', you are one of the few places left we can get accurate and trustworthy news. I wish that you would post more on this subject. It's getting harder and harder to find someone with the guts to do so.

Anonymous said...

Anonymous 9:12 and Grits, you are both wrong on the pension matter. Equity is a smaller portion of pension asset allocation than it has been historically because good returns are difficult to find, Houston placing much of their money in alternative assets. I doubt they will come up with 7% returns myself, at which time their new arrangement will cause more cuts. Mayor Turner has stated time and again that if the funds do not meet their goals, they will be back at the bargaining table. Anyone thinking the bargaining will be anything other than for benefit cuts is simply blind but the Mayor has had the pensions make their own cuts rather than direct them himself. I'm surprised neither of you have mentioned that the state pension plan for TRS requires an 8% ROI and the ERS that many police are under pays out 7% while claiming it has averaged 8.29% over time. Also surprising is how neither of you mentioned Houston's opt out provision to the state constitution that allows for cuts in the first place, Dallas not one of the communities that held the required referendum protecting benefits. Dallas will spend a great deal trying to avoid going broke but Houston has at least been willing to address cuts several times in the past, the firemen's union indeed screaming bloody murder and likely to fight the actions of their pension board, but the other two unions have not taken adversarial action at this writing.

Gritsforbreakfast said...

@7:30, I agree a) that 7% is unlikely and b) if they go to the bargaining table, Mayor Turner will want cuts. I also understand a fact that you seem to ignore: the Mayor cannot unilaterally dictate cuts and has expended tremendous political capital to get what he got. Plus while Turner may be willing to stand up to the unions, the next mayor may not be.

I also agree the Houston plan is doing something while the Dallas folks are bogged down in a quagmire and proposing nothing. Dallas is in near-term danger of pension-caused bankruptcy; Houston is not. But neither is Houston's pension, even with this deal, on sustainable financial footing. Warren Buffett has said pension funds should expect no more than 5% returns.

Hard to understand why you're surprised that no one here knows details of all employee state pension plans (a good reason for you to source your numbers when you give them, btw). This is a criminal justice blog, not a pensions and investments site. For example, I can't tell what this means and doubt other readers can, either,"neither of you mentioned Houston's opt out provision to the state constitution that allows for cuts in the first place, Dallas not one of the communities that held the required referendum protecting benefits." No referent, so that doesn't mean much to the average reader. I don't claim to know everything. But on issues where I don't know a lot, I try to fall back on basics, like math. That's why I can't get over the 7% figure - I don't believe those are real numbers.

Anonymous said...

Some of your readers forget that while you cover criminal justice reform issues statewide, you do not immerse yourself in the details outside of Austin. The difference is that those in Houston were pounded by over a dozen mayoral candidates harping on pension issues, the sole daily newspaper still posting related stories throughout the year. After Turner is term limited out of office or someone else beats him, it is unlikely a more liberal, pro-employee mayor will be elected. But for the record, the net returns by the HFFRF (HFD pension) is 9.81 for the last 3 years and 7.62 for the last 10 years, the 30 year average at 9.95.

The HMEPS (municipal pension) returns are 10.97% for the last 3 years, 10.76% for the last 5 years and 8.27% for the last 10 years:

So Buffet's predictions aside, 7% doesn't seem too outlandish but if they need future cuts for not making it, so be it because that is the deal they are making.

Gritsforbreakfast said...

More accurately, 7:45, I immerse myself in details on many non-Austin issues, but follow WAY too many topics to treat them all in depth. For me, pensions are an emerging issue I'm starting to track because it's all so screwed up it's going to affect the justice system in the main if it's not addressed, most immediately in Dallas.

If the returns make, fine. I hope they do. But your comment about Turner misses the point. He is able to cut this deal BECAUSE he's a liberal, pro-union D and so he can use political capital to extract concessions that an anti-union R could not. But he can't do it forever and there's no guarantee that, if negotiations are reopened in the future, he'll be able to do it again.

Anonymous said...

If all these pension plans are making 10-11 percent per year, why are they going underwater and looking for taxpayer bailouts? Something fishy about those numbers, 7:45.

Anonymous said...

@10:01, Houston's three pensions are underwater because the city has not paid in the needed amount for most of the last 20 years but they weren't asking for a bailout. Dallas is underwater because their pension system made a number of highly speculative investments but they have not asked for a bailout either. The state pension review board has validated the numbers he listed but that doesn't mean they will earn as much in the future.

@Grits, Houston's mayor can force the largest two pensions to make concessions by virtue of the opt-out provision discussed above. It can also place all new employees under a different set of benefits for all three pension systems without leg approval. A pension hawk GOP mayor would almost certainly cut benefits further without even asking the groups to the table, markedly different from Turner's consensus style manner.

Anonymous said...

I suspect few in this thread have any experience with a personal bankruptcy, never mind a municipal version, or the legal requirements needed to allow either to enter into the arrangement given the comments here. Having a pension system that is under funded and could run out of money in ten years is hardly the criteria for such, Dallas admittedly needing to make adjustments in the future to prevent such a status. I implore those of you interested in understanding municipal finance to stop listening to others that lack the education and experience to find out for yourselves. The reporters handling these media circuses have almost no expertise in pensions, finance, municipal budgeting, or other related topics so while they can quote others with fancy titles that also lack the requisite expertise to comment intelligently, they rarely even get the basics correct.

The quick version is this: unlike many cities in other states, Dallas and Houston do not have nearly as much programmed spending in their yearly budgets. In Illinois, their state supreme court has ruled that pension benefits cannot be cut, other states like New York having their own statutory limits on changing existing spending. In Texas, these cities can lay off as many people needed to make their budgets, they can cut spending as needed too (examples, cut road repairs, replace city owned cars slower, obtain fewer books or cut libraries hours), or increase fees and taxes up to a certain point. For all the squawking about bankruptcy coming from the same idiots trying to scare people, both Dallas and Houston can make whatever needed adjustments are stay solvent, unlike other places. Given the expansion of population in Texas, those suggesting bankruptcy as a solution to anything should be sent back north, we don't need those carpetbaggers bogging us down.