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.

Why not to recruit Stormtroopers to your police department: Cowtown edition

Fort Worth PD yesterday released another Stormtrooper Recruitment video a video of an officer shooting an unarmed man in the back seconds after he left his patrol car from an incident earlier this year. See coverage from the Startlegram and the Washington Post. This arrives in the wake of viral video showing another Fort Worth officer arresting a mother and child in a dispute about which a Dallas News columnist declared, "It's hard to imagine anyone mishandling a call any worse than this officer." Meanwhile, the local police union president made himself the poster child for the proposed new enhancement for assaulting a police officer after he attacked a CLEAT boardmember in South Padre and fled the scene in September.

Make us proud, Cowtown. Make us proud.

Indigent Defense Resource Roundup

Here are links to some excellent resources found in the Texas Indigent Defense Commission winter newsletter that Grits wanted to preserve for my own purposes:

• See a press release and Texas Judicial Council resolution supporting recommendations from the Timothy Cole Exoneration Review Commission.
• See a four-page primer on the Texas Fair Defense Act created for Texas legislators and staff.
• See the Judicial Council's recommendations regarding legislation governing pretrial decision making practices.
• From the Criminal Justice Policy Program at Harvard Law School, "Moving Beyond Money: A Primer on Bail Reform"
• Here's a toolkit for public defenders from the National Legal Aid and Defender Association on how and why to increase defenders' analytical capacity, .
• See meeting materials from a Mental Health Roundtable hosted by TIDC in November.
• TIDC has added a Juvenile Addendum and an Appellate Addendum to its criminal defense lawyer caseload data.  See also a power-point presentation from TIDC on Texas' "smart defense data portal."
• From the Bureau of Justice Statistics: State­ Administered Indigent Defense Systems, 2013 report and summary document.

State should pick up more local indigent defense costs, but not all of it

The Texas Judicial Council issued a resolution supporting 100% state funding for indigent defense, which at present is mostly paid for by counties. Along that same vector, the Texas Indigent Defense Commission's Legislative Appropriations Request asked the state to pay for half the total indigent-defense cost in the next budget, up from 12 percent in the last one, rising to cover the full cost in six years. Grits supports additional funding for indigent defense from the state, but I disagree with my friend Jim Bethke, executive director of the TIDC, that the state should take over all of it.

There are lots of reasons it's beneficial for counties to still have skin in the game. The state pays for 100% of prison costs, for example, so local prosecutors seek the longest possible sentences knowing the expense won't come from the county budget. Mass incarceration is driven by local decision making. And economics provides a practical check on government behavior which carries more weight than moral and ethical arguments can typically muster.

Besides, having the state pick up the tab for indigent defense isn't real tax relief. The overall burden would be the same on the taxpaying public, they're just shifting burdens from property taxes to sales taxes. That's a smoke and mirrors move. In the end, you can't reduce government costs without reducing the size of government. 

The best way to reduce county indigent defense costs is to reduce penalties on common, victimless crimes so the government won't have to hire a lawyer. Reduce low-level pot possession from a Class B to a Class C misdemeanor, for example, and that's 70,000+ fewer cases where, if the defendant turns out to be indigent, they're eligible for county-paid representation. You'd pick up thousands more by reducing all driving-with-suspended-license cases to a Class C. And reducing penalties for low-level possession of harder addictive drugs from a State Jail Felony to a Class A misdemeanor would also dramatically lessen indigent defense costs, as well as shifting some of the system's volume to presently under-utilized county courts.

You can't reduce the cost of government and simultaneously insist that it perform every function that it did when you spent more money. So it's better for the Lege to make thoughtful choices about which criminal offenses merit counties paying for indigent defense instead of reflexively picking up the tab for local decisions. That's how we got a $7 billion prison budget (after a $458 million bump in 2015).

So, Grits supports the state picking up more of the tab - a 50/50 split could seem reasonable to me - but for now I remain unconvinced about full state funding. Do that and locals would allow costs to rise unfettered, with no practical checks on local actors regarding accountability for their own decisions or resulting systemic costs.

All that said, the Lege enters the session facing a multi-billion dollar shortfall, so this discussion could become moot. There are a ton of competing priorities. And I support the levels of state funding TIDC is seeking in the next budget, even if Grits wouldn't go any farther. So, if asked, I agree with TIDC's appropriations request for the coming biennium. But after answering, Grits would add, sotto voce, "for now."

Rudeness or racism? And we should care, why?

The Fort Worth Police chief said he was "disturbed" by viral video showing his officer provoking a confrontation with a woman who called 911 then arresting her when she reacted. But, said the chief, “There’s a difference between rude and racism.” Grits agrees. But there are also similarities between rudeness and racism. For example, if dash-or-bodycam footage showed the same officer isn't routinely "rude" to white folks, that could be revealing. OTOH, if the guy is just rude to people generally and is not guilty of racism, why do you want him representing your department? In fact, why is he on the force in the first place and why didn't his bosses catch it before if that's just generally how he treats people? Which leads to the question, in their routine, day-to-day functions, do Fort Worth PD supervisors discourage these behaviors, or do they or teach them? After all, they're recruiting Stormtroopers, right? (See Grits' earlier commentary.)

The practice of police verbally provoking victims, drivers, etc., lies at the root of a lot of these confrontations and the fact of the matter is, officers are trained to do it. I'm sure that will be the police union's defense if and when the department tries to fire the guy. And there's more than a grain of truth to it. Police officers don't behave that way because they're all racist jerks. They do so because of the training they receive, the culture they work in, and the values and priorities of management, which are expressed through the actions of their employees more than through public statements. The Fort Worth chief is right that the problem may not be racism. But that's a much bigger concern than if this were just a one-off where a single racist slipped through the cracks and made it onto the force.

MORE: From James Ragland at the Dallas News.

Bill to limit Class C arrests target of red-herring arguments

With momentum building in support of Texas legislation to eliminate arrests for non-jailable offenses, Grits should respond to a red herring argument being trotted out in reaction to Sen. Konni Burton's SB 271 and Rep. James White's HB 567: That Timothy McVeigh, bomber of the Oklahoma City federal building in the '90s, was arrested at a traffic stop and might not have been captured if the incident were governed by the proposed statutes. This is such horse-hockey, Grits at first didn't consider the point worth countering. But a couple of folks have brought it up now and apparently it's a principle argument opponents are trotting around in response to the bill, so let's get the obvious rebuttal out there.

As anyone would discover through the most cursory examination, Timothy McVeigh was arrested not for a non-jailable traffic violation (although that's why he was pulled over), but because he informed the state trooper who stopped him that he was in possession of an illegal firearm. That's what triggered his arrest. 

Under Texas' proposed legislation, police can still arrest individuals who are in possession of illegal weapons or who are committing other crimes if they fall into higher offense categories. So, because McVeigh wasn't arrested for a non-jailable traffic offense, his example just isn't applicable. Police at traffic stops always have the opportunity to watch out for more serious crimes, as happened during McVeigh's arrest. The Texas legislation merely protects drivers from arrest when the traffic offense (or other Class C misdemeanor) is the only alleged criminal act, as happened when a Texas state trooper decided to arrest Sandra Bland.

If that phony argument is the best opponents have got, this bill's chances are looking pretty good. Go here to tell your state legislators to sign onto these bills as supporters and help pass them during the 85th Texas Legislature.

Dallas County embracing risk assessments for bail, beefing up mental-health response teams

Dallas County is implementing a couple of significant criminal justice reforms, as described in this Morning News article. 

On the mental health front, Dallas Fire and Rescue received a $7 million grant from the Meadows Foundation to "launch Rapid Integrated Group Healthcare Teams, or RIGHT care teams, made up of specially trained police officers, paramedics and a mental health clinician. They will respond to crises and seek to de-escalate situations and determine the most appropriate course of action." Grits believes that armed police officers should serve primarily subordinate backup roles in these situations. The person trying to communicate with a mentally ill person they just met needn't complicate matters by carrying a gun.

Perhaps even bigger news: Dallas will begin using risk assessment to decide who gets released from jail: "Once at jail, anyone who is arrested will be screened for mental illness. The jail will send those results to judges to consider when setting bond. The county will also start using a risk assessment tool to arrive at an estimated level of danger and flight risk posed by each defendant."

According to the News, "Defendants' potential release from jail will hinge on mental health and public safety considerations, not just the criminal charges they face and a financial ability to pay bond." Further, "The county is doubling its pretrial staff from five to 10 in January to handle the expected increase in pretrial defendants they need to supervise in the community." Investing in pretrial service staff shows the county is serious. The open question: Will judges use pretrial services staff and abide by their recommendations?

Such changes should add to momentum for state-level bail reform when the 85th Texas Lege meets in January. Members from counties which have already shifted to a risk-assessment model should be less resistant to proposals that they do so from the Texas Judicial Council, which seems to be the direction they're heading.

Who at Fort Worth PD wore Stormtrooper look better?

Fort Worth PD was the subject of two viral videos this month: One where an officer arrested a distraught woman and her daughter after she'd called 911, and another produced by the department for recruiting purposes featuring a Darth-Vader-backed Stortrooper training to become a FWPD officer.

Who wore the Stormtrooper look better?

One notes that, if State Sen. Konni Burton's SB 271 banning arrests for nonjailable offenses had been in effect, these women couldn't have been arrested.

Sugar Land, convict leasing, and the future of TX prison closures

At Texas Monthly, Michael Hardy has the story of a campaign by a former TDCJ prison guard named Reginald Moore to get the city of Sugar Land to acknowledge the history of slavery, convict leasing, and plantation culture on which the area's economy was founded. There's a bunch of good stuff here. For example, the Jester Unit(s) sit:

on land that was part of the 97,400-acre tract granted by the Mexican government to Stephen F. Austin in 1823 for his services as impresario. Like most of the Anglo settlers he brought to what was then northern Mexico, Austin was a Southerner, and he saw Texas as fertile ground for creating the kind of cotton plantations that were flourishing across the South. In his recent book Seeds of Empire, University of North Texas historian Andrew Torget writes that “the rapid movement of U.S. expatriates into northern Mexico was—more than anything—a continuation of the endless search by Americans during those years for the best cotton lands along North America’s rich Gulf Coast.” Integral to cotton farming was slavery, which Austin encouraged by granting settlers 80 acres of extra land for each slave they brought with them.

This is important, little-discussed history about the political economy of the Texas prison system in the 19th and 20th centuries (for more, Robert Perkinson did a decent job with it in Texas Tough). Again, from Hardy:

Then came the Civil War. The South’s defeat and the abolition of slavery plunged the Texas economy into a depression. Deprived of their labor force, most of the sugar plantations on the Lower Brazos went bankrupt. One of the few that survived was the Williams plantation, which was purchased after the war by Edward H. Cunningham and Littleberry A. Ellis, business partners and Confederate veterans. 

Cunningham and Ellis survived the abolition of slavery by finding a new source of cheap labor: the Texas prison system. Although they weren’t the first growers to use convict labor, they were the biggest: in 1878 they signed a contract with the state to lease Texas’s entire prison population. This was perfectly legal, since the Thirteenth Amendment, which outlawed slavery, made one very consequential exception: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” (Italics added.) 

In the years before the Civil War, Texas’s state prisons had held around two hundred inmates, all kept at a single facility, in Huntsville. After abolition, the prison population exploded, disproportionately with black men. Unable to house and feed all the new prisoners, the state began renting them out to private companies, who were grateful for the supply of cheap labor. ...

The working conditions in Cunningham and Ellis’s sugar fields were as bad or worse than they had been on the slave plantations. Mosquito-borne epidemics, frequent beatings, and a lack of medical care resulted in a 3 percent annual mortality rate. The plantation soon became notorious across the state as the “Hellhole on the Brazos.” ...

Between 1906 and 1908 the plantation and its sugar-processing operations were bought up by Isaac H. Kempner, of Galveston, and William T. Eldridge, of Eagle Lake, who formally incorporated as the Imperial Sugar Company. Although Eldridge had used convict labor on another farm, Kempner was opposed to the practice and began planning to transition to free labor. To attract a new labor force, the two men established a company town, Sugar Land, with worker housing, stores, and a modern hospital. 

Texas’s experiment with convict leasing was coming to an end anyway. In 1910, following a series of newspaper investigations of the Texas prison system, the Legislature formally ended the practice; by 1914 all prisoners were back under the exclusive control of the state. From then on, the only entity that would benefit from the coerced labor of prisoners would be the Texas Department of Corrections. 

To be fair, this history hasn't been entirely forgotten, even if Hardy's protagonist finds himself fighting a lonely battle in Sugar Land, where city officials are clearly in denial, promoting some weird, Chamber of Commerce line that pretends that Texas history began post-Jim Crow. Indeed, that history was one of the reasons reformers targeted the Central Unit as the first one for closure. As Grits wrote when the facility shuttered:

For my part, the Central Unit's economic role in the prison system's ag business was one of the reasons I favored it as a prime target for closure. Not only was Central's historic role symbolic, breaking it up would end some of the last remaining physical vestiges of the old convict leasing system, replaced to a lesser and far-less brutal extent in the modern era by in-house agricultural operations on the agency's vast real estate holdings.

Similarly, Grits has argued that the Jester Unit and several others clustered together near Richmond, in Fort Bend County, should be the next state facilities targeted for closure. They're surrounded by million-dollar homes, suburban schools, and not one but two country clubs. So the historic and systemic concerns raised in this article combine with NIMBYism and the irresistible logic of property values to make those facilities prime targets for closure if TDCJ's population continues to decline. 

After a $458 million budget hike last session, TDCJ has been ordered to cut $264 million from its budget for the 2018-19 biennium. That will require reducing incarceration levels and closing facilities. Recent history shows that cuts to core services like prisoner food and healthcare have limited real-world value. We've cut those costs to the bone, and then some. If the Lege wants prisons to cost less, they must choose to operate fewer of them, and change the law to incarcerate fewer people.

Grits isn't sure the groundwork has been sufficiently laid to close these Fort Bend facilities yet: They could become more vulnerable in 2019 and 2021 if inmate populations continue to decline. And in the near term, the state would save more money in the next budget cycle by declining to renew several private prison contracts which expire in August 2017. But over the next five years or so, the fate of those units around Richmond will likely come into play, and this history will inevitably become part of that dialogue. Perhaps then, these forgotten stories Mr. Moore is unearthing will end up playing a more prominent role in debates over the area's future than the blindered town fathers in Sugar Land can presently contemplate.

Just Liberty: Tell Texas Lege to reform civil asset forfeiture

Grits readers are an informed lot, so I'll keep this short and sweet. If you live in Texas and support requiring a criminal conviction for the government to seize people's personal property via civil asset forfeiture, go to the Just Liberty site and take action, asking your state rep and senator to change the law. Now is the time to put the topic on their radar screen, as members are prioritizing issues headed into the 85th Texas legislative session which begins in January.

Currently, while the government can't secure a criminal conviction without proving their case beyond a reasonable doubt, they can accuse your stuff of criminality based on a lesser standard - "preponderance of the evidence" - and take it from you, anyway. This proposal would still let government do forfeitures, but only after they've proven that the property owner committed a crime. If you agree, Grits would appreciate it if you'd go here and register your opinion. Thanks folks.

For more arguments supporting asset forfeiture reform, see Right on Crime's new paper, "Rebutting Common Myths of Civil Asset Forfeiture."

Texas overdose numbers high enough for concern

Note to Texas journalists: Stop saying Texas has "fewer" overdoses than other states. It's not true. Texas has a lower RATE of overdoses than many other states, but because we're so populous, that still adds up to a lot of folks: 1,287 in 2015 alone - about the same as the number of murders that year (1,316), so no small thing. Texas ranked 8th nationally among states in total overdose deaths.

Texas' leaders have chosen to bury their heads in the sand over opiod overdoses, adopting hard-nosed policy stances which have cost lives. Understating Texas' overdose problem improperly lets them off the hook.

Harris DA office firings may set stage for more stable future

There's been much weeping and gnashing of teeth over Harris County DA-elect Kim Ogg's decision not to renew contracts for 37 prosecutors at the District Attorney's office. Reported the Houston Chronicle, "Like any good team that has suffered some under-performing seasons," she declared, "we're changing management. My administration is heading in a new direction."

Murray Newman - a former prosecutor fired by former DA Pat Lykos who, like many of those terminated this week, suffers from a wistful nostalgia for the Johnny Holmes era - opined that, "Yes, it is absolutely true that this happens with every Administration, but the numbers are usually relatively small.  I believe that my firing class was right around 10 people."

He's right about that, but here's what he's not saying: Lykos made a big mistake by not firing more people and Ogg is probably wise not to replicate her error.

Murray got fired, justifiably, because he lambasted his new boss publicly on his blog several times per week in commentary which, for an employee, amounted to insubordination. (Indeed, union organizers generally are more discreet in their anti-management attacks.) But otherwise, Lykos mostly replaced folks only at the very top of the DA food chain, leaving senior supervisory staff largely in place. Problem was, those folks felt the same way as Murray, they were just politically astute enough not to say so in public. And they proceeded to undermine Lykos from within at every turn, nearly from the moment she took office, then later agitated early and often for Mike Anderson, who ultimately ousted her in the Republican primary.

So, we've seen this movie and there's no reason for Kim Ogg to prefer a rerun of that trainwreck to a fresh new feature of her own making. In Austin, DA-elect Margaret Moore ousted 27 prosecutors in a much smaller office, but somehow nobody in the capital believes the world may come to an end as a result. To read Anderson's commentary in the Chron story, you'd think these 37 souls were the only thing preventing Houston from descending into chaos reminiscent of a scene from a Mad Max movie, and that no other lawyers in America's fourth largest city could possibly replace them. But here's a news flash from the Trumpian era: Winners pick their teams, and nobody's irreplaceable.

So, I'm sorry for folks who lost their jobs at Christmas, although I haven't heard any moaning for Obama-Administration officials' employment ending. Voters turned Devon Anderson out of office fair and square and her opinions about which of her friends deserve jobs at the DA office no longer carry weight. For the next four years, Kim Ogg gets to appoint people loyal to her. Nothing requires her to stick with her predecessor's team, and recent Harris County history shows that refusing to do so was probably a smart move.

DPS: 2/3 of Austin DNA lab analysts so bad they can't be retrained

The latest reports from the Austin PD DNA lab almost stun the senses, revealing that 2/3 of DNA analysts employed there were allegedly so incompetent that the DPS crime lab folk don't think they're retrainable. Reported the Austin Statesman:

Immediately after the Austin Police Department shuttered parts of its troubled crime lab, police officials asked experts from the Texas Department of Public Safety to help retrain APD staffers with a goal of possibly getting the lab up and running again. 

But Monday, DPS officials told the department they had lost faith in most of the staffers they were working with — and wouldn’t be returning. 

Instead, according to a one-page letter obtained by the American-Statesman and KVUE-TV, only a select two from a staff of six DNA analysts are invited to a state facility to continue training in a “supportive environment.” 

“I know they feel there have been some challenges, and they aren’t confident in the work of some of our analysts that we have had in retraining,” interim Police Chief Brian Manley said. “Since they have been doing this for us, we want to respect their decision and respect their request.” 

Manley said Monday was the first time he had personally been notified of the gravity of the situation. 

“They have been in contact with some of our supervisors, but to be made aware of this level of concern, where they don’t want to move forward with four of our scientists, that is a new development,” he said.

Art Acevedo left town at an opportune time, one notices in passing. But it's worth mentioning that this failure in part stems from the now-Houston PD chief's relative inattention to and de-prioritization of most of his department's duties besides patrol, which he perennially proposed expanding to the detriment of all other aspects of the department's duties. In Houston, because of past scandals, the crime lab has already been taken away from the police department's purview, so at his new gig Chief Acevedo thankfully will be relieved of that responsibility. But the team he left behind in Austin must immediately shift its focus to all the non-patrol duties which have been neglected for so many years. That of necessity starts with the crime lab, and particularly the DNA division, but if it ends there, more such land mines will explode in the future. All the department's civilian support functions - from crime-scene techs to victim-support specialists - have for years been relegated to the back of the budget line.

In the meantime, the Austin City Council should seriously consider spinning off its crime lab the way Houston did, in compliance with recommendations from the National Academies of Sciences dating back to 2009 that crime labs should be independent and not controlled by police. That's in part because analysts can become agents of the police instead of independent scientific arbiters when they're embedded in a police department's organizational culture. But it's also because police departments seldom prioritize crime labs, not just in terms of management attention but also budgeting, leaving them under-resourced and often devoid of high-level scientific expertise. That's a big part of what happened at APD's DNA lab.

Grits should add, when I say "independent," that does NOT mean hand it off to the Travis County medical examiner, which has its own long history of tolerating questionable forensics and a too-cozy relationship with law enforcement that influences scientific judgments. Houston's crime lab with an independent board is the model to replicate.

Finally, the Austin DNA lab imbroglio arguably represents the nadir of Forensic Science Commission effectiveness, though this year they've worked doubletime playing catchup. Grits has praised the FSC when they do good work, but a bunch of these issues were raised in 2010 by Cecily Hamilton about the Austin lab and the FSC investigation gave them a pass. Recent events corroborate Hamilton's charges and seriously call into question whether the FSC adequately investigated them. 

The issues Austin faces surrounding DNA mixtures are similarly being confronted at crime labs around the state. But Grits surely hopes the level of incompetence apparently at play in the Austin lab is mostly exceeded elsewhere. DNA is used in SO many cases these days - with half or more cases involving the more complicated mixture analysis that's been called into question in the last 18 months - that the legal task of undoing the damage nearly boggles the mind. 

Now consider this: The 2009 NAS report considered DNA evidence the gold standard of forensics and focused more on the non-scientific nature of nearly all other types of forensic evidence, from fingerprint analysis to hair-and-fiber to ballistics to bite marks. DNA mixture evidence may be a mess, but so are many other types forensic evidence used every day in Texas and American courts.  You can put a person in a lab coat but that doesn't make what comes out of their mouth science.

The nation since the election been grappling with the rise of "fake news." But fake science, pseudoscience, whatever you want  to call it, has been embedded in American courts for decades, harming more people, certainly, than any climate-change denier has to date. 

It makes you wonder: How in heaven's name can this much error with such grave consequences have been tolerated and justified by the justice system for so long? We need forensic analysis and Grits continues to think some forensic disciplines are useful. But being useful doesn't make them science, which is a pretension designed to exaggerate the credibility of analysts and overstate the certainty with which jurors and other stakeholders interpret state testimony about physical evidence.

MORE: The Statesman reports that Austin is no longer even trying to reopen its DNA lab.

Reduction in jail suicides welcome, but not yet a 'trend'

The MSM should be careful labeling the 2016 reduction in Texas jail suicides a "trend," as this Dallas News editorial did. One year's data does not a "trend" make. I realize that, in 21st century internet culture, everyone wants answers now. But when it comes to criminal-justice data, there's still a lag before enough data exists over a long enough period to distinguish "trends" from noise.

Private prison seeks TX expansion despite lack of demand

Corrections Corporation of America, recently renamed CoreCivic, wants to take over the former Al Price juvie unit in Beaumont and convert it into a "secure" facility aimed at reducing reentry and lowering recidivism among drug-addicted adults. They envision a "behind the fence facility, where inmates would receive treatment for substance abuse addictions."

Of course, a cynic might note that there's no such new facility in TDCJ's budget request, which is focused more on where to make cuts mandated by legislative leadership. So the private prison company is banking on having enough political clout to inject the idea into the state legislative process, even though none of the state actors involved are asking for the unit.

Local officials in Beaumont are being sold a bill of goods and should invest no taxpayer funds in incentives to support the venture. In a budget-starved session like the one we're about to enter, believing the Lege will pony up for new a secure facility no one asked for amounts to buying a pig in a poke.

South Texas ISF closing

Mothballing of a small TDCJ facility in downtown Houston has begun, reported the Houston Business Journal. With a few small tweaks - most prominently reducing penalties for low-level drug possession from a felony to a Class A misdemeanor - Texas could free up enough space to close several additional units after the upcoming legislative session. Just closing this one, small unit will not be enough to meet the 4% budget reduction mandated for the agency earlier this year by legislative leadership.

License suspensions for drug convictions a problem in Texas, but not as big as the Driver Responsibility surcharge

Texas law suspended drivers licenses for some 13,000 drug convictions in 2015, found the Prison Policy Initiative, down from more than 16,000 in 2010. The group suggested that Texas is among the states which "should repeal their laws that automatically suspend licenses for drug offenses that are unrelated to driving and retroactively restore suspended driver’s licenses."

Grits heartily agrees. But the much bigger source of the justice system revoking people's driver's licenses in Texas is the Driver Responsibility Surcharge, which has costs millions of Texans their licenses, 1.4 million of whom have not been able to regain them. That's almost entirely because of simple economics: They can't afford the civil surcharges on top of the criminal penalties involved with traffic tickets, and eventually succumb to the bureaucracy.

Most of these folks don't stop driving, of course, they just drive without a license. Then the next time they're stopped, the cops just rinse and repeat. It's not keeping us safe, but it's keeping a lot of government employees occupied and generating a great deal of revenue that the Lege can pretend is not "taxation." By comparison, the few thousand people whose DLs were revoked for drugs are a drop in the bucket. Texas' problems stemming from revoking licenses in the justice system are more far reaching and deeply rooted than that.

Case study: Why to question (another) enhancement for assaulting police officers

Governor Greg Abbott has responded to recent ambush killings of police with a suggestion to make murder of a police officer a "hate crime" and to "increase criminal penalties for any crime in which the victim is a law enforcement officer."

Though Grits has long opposed most enhancements, considering the one-way ratchet applied to criminal penalties to have surpassed any real need for additional punitiveness in Texas by around the turn of the century, in the scheme of things, I don't mind the symbolic gesture of creating another "hate crime." It's already a capital offense to murder a police officer, so the difference is purely semantic.

However, the penalty for assaulting a peace officer is already significantly enhanced, with murders of police securing a death sentence or life without parole and lesser assaults bumped upward by one offense category. So we should already be witnessing any possible benefit from enhanced criminal penalties on reducing the number of murders of police officers. If that strategy worked, we wouldn't be having this discussion!

The problem is, criminals don't carry around pocket copies of the Penal Code to read in their spare time at the bus stop. Killing a police officer and standing trial for it is a one-time life event during which offenders typically only contemplate potential consequences after the fact. Nobody is weighing penalty thresholds in their mind's eye at the moment they assault a cop. Or if they are, they have resigned themselves already that they will die if the officer does.

OTOH, there may be good reasons why one wouldn't want to boost the penalty by two categories (instead of one) just because the victim is a police officer. For example, in September, Sgt. Rick Van Houten, a police union president out of Fort Worth, allegedly assaulted another officer at a CLEAT convention on Padre Island then fled the hotel before local police came. His department investigated the incident and decided it was worth only a three-day suspension. Does anyone think the situation really merited prosecution as a felony if his department would let him back on the job so quickly? Van Houten was even allowed to participate in meet-and-confer negotiations while on restricted duty because of the incident.

Many people accused of assaulting a police officer, just like Sgt. Van Houten, claim they were defending themselves against unwarranted aggression. And there's little doubt that those claims are sometimes true. The difference is, because Van Houten himself wears a badge, he's more likely to be believed in the absence of video evidence.

Yes, cops receive lenient treatment compared to civilians when they hurt other people or break the law. But perhaps the best way to achieve justice is neither to punish cops more harshly nor to mandate felony incarceration for relatively minor altercations like this one. Instead, perhaps average citizens should be afforded the same protections and benefit of the doubt they'd receive if they were a member of a protected class like politicians or police officers. The punishment afforded the union boss is closer to "justice" in this situation than if the law demanded he be prosecuted for felony assault.

When considering whether to change the law, legislators should assess how Sgt. Rick Van Houten should be treated, not some hypothetical scary black guy conjured up for purposes of pushing a cause. If Sgt. Van Houten deserved a felony rap, fine. But if not, don't mandate that outcome for people who commit the same offense but don't wear a badge.

Priorities, choices, and poor drug-war outcomes

What a world we live in.

Asset forfeiture by the government now takes more money from people than burglars and the number of heroin deaths has surpassed gun homicides.

Can't blame Donald Trump for that, huh?

OTOH, one recalls that Gov. Greg Abbott last session vetoed "Good Samaritan" legislation which would have prevented prosecution of people who called 911 during an overdose, stayed with the victim, and cooperated with police. That would have helped prevent overdose deaths. When the bill comes back this time in the 85th Texas Legislature, they should pass it again and Greg Abbott should sign it.

In a related, poor state policy decision which likely resulted in more heroin deaths, the Texas Department of State Health Services recently failed to solicit a federal grant to pay for first responders to have access to Naloxone, an opiod antagonist with no significant side effects which can keep overdose victims from dying.

Similarly, the Lege has an opportunity this session to rein in asset forfeitures by law enforcement which are unrelated to a criminal conviction. The Texas Public Policy Foundation this week published a myth-busting document explaining why they can and should do so.

These sorts of statistics aren't just things that happen in the world, they're a result of government priorities and policy choices. If we want different outcomes, government must change both.

A first look at Exoneration Review Commission recommendations

See the new report from Texas' Timothy Cole Exoneration Review Commission, released this week. Let's review their main proposals:

ELECTRONIC RECORDING OF INTERROGATIONS 

I. Require either audio or audiovisual electronic recording of interrogations by law enforcement agencies when investigating all felony cases. 

II. Require recording to begin when the suspect enters the interrogation room. 

III. Enforce compliance with new recording requirements by permitting the admission of an unrecorded statement only if the judge finds good cause for the failure to electronically record the statement, and establishing a presumption that an unrecorded statement is inadmissible as evidence if the judge finds that no good cause exception applies. 

This is a much needed reform. According to the report, 68 percent of Texas law enforcement already have capacity to record some interrogations. So this recommendation would pick up those other stragglers and make the policy's application uniform across the state.

The commission recommended recording interrogations for all felonies instead of only serious violent felonies, as suggested in compromise legislation that failed in the past. But, as a dissenter pointed out, given how cheap and ubiquitous recording equipment is in the 21st century, there's really no good reason not to do it for misdemeanors, too. This is as much a best-practice as a reform, since recorded statements from a witness are superior evidence to written confessions. A stakeholder survey whose results were published in the report found that 88 percent of judges and 85 percent of police at NON-recording agencies thought recorded interrogations were beneficial; 72 percent of prosecutors and 70 percent of defense attorneys agreed.

FALSE ACCUSATION/INFORMANT REGULATION  

I. Require prosecutor offices to have written policies on tracking and disclosure of impeaching information on jailhouse informants.  

II. Permit the admissibility of jailhouse informants’ complete criminal history, including criminal charges that were dismissed or reduced as part of a plea bargain. 

III. Require prosecutor offices to establish an internal system to track the use of jailhouse informants including, but not limited to, cases in which the jailhouse informant offered testimony and the benefits provided in those cases. 

These important suggestions represent the minimum necessary just to evaluate the problem. Transparency is a first step toward reform, not an end game. But these would be a good start. The Tarrant County District Attorney, the report noted, implemented precisely this sort of tracking system in June 2016.  In Grits' view, there's no reason to limit such a tracking system to "jailhouse informants," but instead anyone who trades testimony for leniency should be included in the system.

OTOH, they famously had such an informant tracking system in Orange County, CA, too, they just used it to aide in perpetrating abuses instead of documenting and rectifying them. So, while tracking informant use is a fine suggestion - and I believe the information generated could better inform a future round of more substantive reforms - these recommendations won't prevent some of the worst abuses which arise from prosecutors trading dismissals or sentence reductions for testimony.

FAULTY EYEWITNESS IDENTIFICATION  

I. Require training for law enforcement officers on eyewitness identification procedures. 

II. Require making juries aware of prior identifications of the suspect by the witness when an in-court identification is made.  

III. Require law enforcement agencies to adopt the Bill Blackwood Law Enforcement Management Institute of Texas Model Policy. 

Here, Grits wishes the commission had dug in more deeply. The biggest problem with the eyewitness ID law we passed in Texas is that there's no enforcement mechanism. If police don't follow best practices, the questionable ID cannot be excluded. And the statute includes no jury charge or other mechanism to highlight the use of problematic testimony to a jury, whom studies show are highly likely to accept eyewitness identifications as "gold standard" testimony. A recent dissent from Court of Criminal Appeals Judge Elsa Alcala demonstrated how and why problematic ID practices have been allowed to continue by Texas courts even after reform legislation had passed. In that case, an identification was allowed even though the defendant was the "sole one in the photo array matching the physical description of the shooter."

Grits isn't saying these recommendations are bad ideas; I support them. But it's one thing to require agencies to put good policies down on paper, and quite another to penalize them effectively if they then choose not to follow them. That's where Texas has fallen down.

FORENSIC SCIENCE PRACTICES  

I. Encourage the Texas Forensic Science Commission to investigate and consider promulgating policies regarding the use of drug field tests used by law enforcement agencies.  

II. Encourage the Texas Forensic Science Commission to investigate and consider promulgating policies regarding the process of crime scene investigations.  

III. Recommend that crime labs in all cases moving forward complete testing of substances in all drug cases regardless of the results of a drug field test, and that crime labs go back through previous cases in which the collected substance was not confirmed by lab testing.

These recommendations are aimed at the exonerations out of Harris County of drug defendants accused by faulty field tests. Many defendants have been falsely accused, jailed, and pled guilty to get out before the crime lab could reach exonerating results, sometimes months or even years later.

Again, Grits finds these recommendations too tepid. Perhaps most critically, they made no suggestions for rectifying notification issues regarding large-scale forensic errors. Many defendants never discover they might be eligible for habeas corpus relief, and there are plenty of systemic actors - especially among tuff-on-crime prosecutors and the Government Always Wins faction at the Court of Criminal Appeals - who would prefer they never do. The first step toward securing justice for them would be to make sure they're aware of their situation.

Roundup: Unprepared, Uncounted, Untrained, and On the Hook

Here are a few odds and ends which haven't made it into independent Grits posts but merit readers' attention.

More Harris County bail litigation 
Harris County faces additional litigation over excessive bail and unnecessary pretrial detention, reported the Houston Chronicle. "In July and August, hundreds of people were arrested and kept in the city jail for more than three days without being granted a hearing." Read more at Fault Lines.

CCA ruling forbids warrantless search of text messages
Judge Kevin Yeary authored a rare, pro-Fourth Amendment ruling for the Texas Court of Criminal Appeals to say police need a warrant to read text messages from your phone. Two judges - Keller and Hervey - would not have excluded the evidence because, even though the defense thrice objected, they believed the objections weren't specific enough to apply. See Chuck Lindell's Statesman coverage, the majority opinion, and Keller's dissent.

Houston On the Hook
A federal judge refused to let the city of Houston out of a lawsuit over a bad police shooting in part because the department has never in recent memory held officers accountable when they unjustifiably kill someone.

Unprepared
What's a judge to do when neither the DA nor defendants are prepared for trial? Wait.

Uncounted
Just because offenders are eligible to vote in Texas once they're "off paper" doesn't mean election authorities will count their votes, discover sex offenders in Texas' "civil commitment" program.

Training kids how not to be shot by police?
Sen. John Whitmire has filed his bill to teach 9th graders how not to get shot by police when they're stopped on the street. Grits still thinks it'd be simpler to train police to shoot fewer of them. The only helpful thing they could teach IMO would be how to assert one's rights to end police encounters as quickly as possible. The rest is going to be a function of how well police are trained, not the citizenry.

Judge arrested on Class C at airport
Actor Judge Reinhold was arrested on a Class C misdemeanor at Dallas Love Field for animated complaints about TSA searching him one too many times when he'd already been through a scanner. This is a good example of the pointlessness of Class C arrests. Once police arrived, ticketing him, escorting him from the security line, and sending him on his way would have been sufficient for public safety's sake. Arresting him and making him spend the night in jail was punitive, not something necessary or particularly useful from a law enforcement perspective.

Government wants Apple users data
Apple saw a 26 percent increase in requests for user data by the government and complied with three quarters of them.

On the limits crime stats
See a short video on the shortcomings of Uniform Crime Report data.

Do low interest rates prevent crime?
Correlation is not causation, but the correlation between low interest rates and low crime is an interesting one, indeed. And the relationshiop seems pretty robust.

Evaluating long prison sentences case by case
This useful and probative framing of the issue of lengthy prison sentences was powerfully presented. Take the "quiz."

Just Liberty

Since I left the Innocence Project of Texas at the end of last year, I've been working with a bipartisan group of conservative and liberal allies toward the creation of a new organization aimed at building grassroots power in Texas for criminal-justice reform.

Today, that project has finally launched under the banner of JustLiberty.org. Its first campaign aims to stop police officers from arresting motorists for Class C misdemeanor traffic violations, similar to the situation which first ensnarled Sandra Bland in the clutches of the justice system. We're really excited, I hope you like it.

If you agree that police officers must stop arresting and jailing people on traffic infractions, please go to the "Get Involved" page and send a message in support of Sen. Konni Burton's SB 271 to your own lawmakers. If you opt in to receive email, we'll notify you when other opportunities for engagement arise, either at the legislature or locally.

When you're done, please post the action everywhere on social media so others will join you. Also, take a look around the site and feel free to share that as well.

I hope you love it; we're proud of the website and especially excited about our first campaign. And if you see something that's not working, please say something. This is Day 1 and we don't expect it's all perfect.

Roundup: Jean Valjean at Christmastime and other stories

Here are a few odds and ends which haven't made it into individual Grits posts during a busy week but which merit readers' attention:

Draconian enhancements based on decades-old offenses
Thanks to "enhancements" based on felonies committed two decades ago, a Hays County man received a six-year sentence for stealing $45 worth of ground beef and toys for his children from a Walmart just before Christmas last year. The kicker: Texas Supreme Court Justice Jeff Brown was foreman of the jury who convicted this latter-day Jean Valjean. Les Miserables similes aside, there needs to be some statute of limitations on how long old convictions can be used to enhance new misdemeanors into lengthy prison sentences. Nothing about what this guy did 20 years ago predicts that he's a danger today; in fact, the nature of this latest trumped-up "felony" indicates his priorities have shifted. The fellow committed what otherwise would have been a Class C misdemeanor theft so he could give his kids a modest Christmas, and "To love another person is to see the face of God."

Judges call for independent crime lab
Travis County judges are calling on the city to separate its crime lab from the Austin Police Department, a move presaged by recommendations from the National Academy of Sciences in its landmark 2009 report. Grits agrees with that assessment, with one caveat: They should make the lab truly independent, as was done in Houston. What they shouldn't do is shift those functions to the county medical examiner, as some have suggested. Let's please do this right the first time. In related news, Sen. Cornyn is pushing legislation to reauthorize federal funding for crime labs and reducing rape kit backlogs.

Contempt of cop: A case study
This article from Meagan Flynn at the Houston Press depicts a class example of an arrest for "contempt of cop" by a Harris County Sheriff's deputy.

Can bureaucracy prevent jail suicides?
Despite this Texas Tribune story, Grits suspects that far too much credit is being given to a new intake form when it comes to reducing jail suicides. We'll have to see if reductions hold long-term. But it's just as likely that jails stepped up prevention efforts because the Commission on Jail Standards began making suicides a greater point of emphasis and Sheriffs didn't want to end up in the paper with the next Sandra-Blandesque death occurring in their facility. If that's the case, suicides will continue to fluctuate and may go back up as new incidents arise. I hope I'm wrong, but it seems hard to believe such a small bureaucratic change could make a huge dent in a problem rooted deep in the human psyche. My instincts say to look for a) alternative explanations and b) future increases.

Veterans courts are cool, but don't scale up
This Houston Chronicle article touts veterans courts as an intervention that works, and they do, but it's also true that they're resource intensive and don't scale up well given the volume and gaping needs of the target population. Reported the Chron, quoting the judge in charge of the project: "The common denominator of the veterans in his court is a 'very low sense of self-esteem and self-purpose,' along with self-hate." But couldn't you say that about defendants in every criminal courtroom in America? Strong probation methods work, but they require more resources than most county governments are willing to provide, and you can't place it all on the backs of defendants through expensive court fees. These courts are important experiments, but they are not yet scale-able solutions and are unavailable to most veterans who commit crimes.

Asset seizures skyrocketed since turn of century
Total assets seized by Texas law enforcement increased more than 150 percent from 2001 to 2013, according to Right on Crime. At this point, agencies have become reliant on the income in unhealthy and problematic ways. If the interdiction strategy were working, one wonders, wouldn't authorities seize LESS illicit assets over time?

LWOP for illegal immigrants makes no cost-benefit sense
Here's a legislative proposal that would cost a small fortune with little public safety benefit to show for it: Authorizing life without parole for first-degree felonies committed by illegal immigrants. Life without parole didn't exist in Texas until 2005, when death penalty abolitionists made a deal with the devil, creating the new punishment as the sole alternative available to their clients in death-penalty cases. IMO that legislation threw their clients under the bus. Since then, we've seen hundreds of people sentenced to LWOP while death sentnences dropped. But LWOP is also a death sentence, just in slow motion. Next we had people wanting LWOP for sex offenders, then for sex traffickers, and not for illegal immigrants. There's no public safety argument for this policy and the cost-benefit analysis cannot stand up to scrutiny. This is just pandering to nativist sentiments in a crass and ham-handed way. One hopes cooler, wiser, and more cost-conscious heads will prevail as the bill is considered at the Lege.

1033 program: Not as free as 'free' sounds
Lots of Texas agencies got "free" personnel carriers through the Pentagon's 1033 program, but the Texas Public Policy Foundation points out that that statement masks significant costs to locals from operating the vehicles.

CAN-DO Clemency
Grits was interested to learn of the CAN-DO Foundation, which stands for Clemency for All Nonviolent Drug Offenders. As folks push Obama to maximize his use of clemency on his way out the door,  it's worth mentioning there's still time for him to posthumously pardon the writer O. Henry, as this blog along with Pete Ruckman has long advocated.

Locked up for the holidays
In an item titled, "Locked up for the holidays," the Pew Charitable Trusts' Stateline site examined the impact of the holiday season on inmates and their families and charity work aimed at supporting both.

Burton files bill to end Class C arrests like Sandra Bland's

Texas State Sen. Konni Burton today filed SB 271, which would eliminate most arrests for Class C misdemeanors like the one that triggered Sandra Bland's arrest, incarceration, and ultimate demise. As Grits emphasized over the weekend speaking to members of the group Faith in Texas, if the trooper in Bland's case had not had authority to arrest her for failing to signal a lane change, she'd still be alive today teaching at Prairie View and we'd never have heard her name. This change in the law, had it been in place at the time, would have stopped that chain of events in its tracks.

This really good, important bill comes to us as a slightly stronger version of legislation which passed in 2001 right after the original, bad Supreme Court ruling, only to face a veto by then-rookie Gov. Rick Perry. Back then, we called this idea the "soccer mom" bill after Gail Atwater, who was arrested in Lago Vista with her child in the car for a seat belt violation and appealed her case all the way to the US Supreme Court. At the time, because Atwater was white, well-to-do, and personally came to the capitol to front the cause, there weren't the same racial connotations framing the issue in the public sphere the way there are now. But, at root, Atwater and Bland faced similar overreach by police officers at their respective traffic stops. The main difference: Atwater had resources to get out of jail more quickly, while Bland was required to wait just a little longer than she could bear.

Good luck to Sen. Burton: I'm excited about the bill's prospects and the proposal should draw strong bipartisan support. Indeed, that part should be fun: This is one of those issues which separates wheat from chaff in both parties: It divides Republicans who really want less government from those who just talk a good game. And it flushes out all the Dems whose fealty to "civil rights" ends at voting rights but somehow never extends to the 4th, 5th, and 6th Amendments if the police unions complain.

Time will tell, but IMO the bill's got a decent shot.

MORE: From Restore Justice.

Underfunded police pensions plague big Texas cities

Texas police and fire pensions in the big cities are a mess the legislature is ill-prepared to deal with in the coming 85th session. The cost of a possible bailout is too large to consider during a budget-year bleeding with red ink, but other alternatives require ignoring fundamental economic realities that could bankrupt the state's largest cities. Reported the Texas Tribune:

Austin, Dallas, Houston and San Antonio collectively face $22.6 billion worth of pension fund shortfalls, according to a new report from Moody’s, the credit rating and financial analysis firm. Moody’s analyzed the nation’s most debt-burdened local governments and ranked them based on how big the looming pension shortfalls are compared with the annual revenues on which each entity operates.

“Rapid growth in unfunded pension liabilities over the past 10 years has transformed local governments’ balance sheet burdens to historically high levels,” the report says. ... 

Houston, which came in fourth, faces a $10 billion shortfall, according to the report. That amount is more than four times the city’s annual operating revenues.

In Dallas, the Mayor has sued in a personal capacity to stop payouts that would bankrupt the pension fund and, ultimately, the city. According to the Dallas News, "hundreds of police officers and firefighters have become millionaires while insulated from the whims and risks of the markets." Moreover, “More than $500 million has been withdrawn from the $1.5 billion fund this year,”

One big issue which Grits had highlighted earlier is the pension funds penchant for excessive optimism when predicting future growth rates. According to the Tribune;

Moody’s applied its uniform analyses and formulas to the myriad governmental entities so that consistent comparisons could be made. But the firm’s process also resulted in different shortfall amounts than government agencies may estimate themselves. One reason for the differences is that Moody’s used each funds’ recent growth rates to estimate future fund balances, while many governmental entities estimate that their funds will draw higher growth rates in the future. 

For instance, Dallas reported a 5.4 percent growth rate that would put its shortfall at $5.4 billion. But Moody’s found the city’s pension fund was growing at a rate of 3.95 percent at the end of 2014. It calculated a higher shortfall of up to $7.6 billion. 

Houston reported a 7.72 percent growth rate and a $4.9 billion shortfall. Moody’s concluded that the city’s pension funds were growing at 4.44 percent in mid-2015 and adjusted its shortfall estimate to $10 billion. 

The report concluded that both Dallas and Houston in 2015 likely exacerbated their pension problems because they each contributed less to their funds than what was needed to keep the shortfalls from growing. Moody’s also downgraded the credit rating for both Dallas and Houston to AA3 this year. Unfunded pension liabilities were a primary driver in Dallas’ downgrade, whose outlook was also revised to negative.

Though, in the press, Houston's situation is always portrayed as less dire than in Dallas, it's worth noting Moody's downgraded both cities to the same levels. That's particularly salient once you account for Houston's high-balled estimated growth rate. Both of these pensions are in bad shape.

Already facing a multi-billion dollar shortfall, it's hard to imagine the Legislature effectively dealing with this issue next spring. But given how close the cities seem to be to full-blown catastrophe, it's possible they won't have a choice. If it comes to that, look for them to deal with it in a special session. I don't believe anyone is walking into opening with a set of real-world solutions that would satisfy everyone, and the issue is too big, complex, and involves too many powerful, interested parties to resolve in just a few months.

Municipal court revenue stayed high though traffic tickets, warrants, plummeted

Grits has remarked in the past that the number of traffic tickets given by Texas law enforcement has precipitously dropped in recent years. Nobody knows for sure the reasons for these reductions in tickets and warrants, though the Austin Statesman has published the most thorough exploration of the topic. But I should have also considered that the number of arrest warrants for Class C misdmeanors has concomitantly declined. A check of Office of Court Administration data this morning confirmed that hunch.

In FY 2015, municipal courts issued 1.738 million arrest warrants for Class C misdemeanors, roughly the same as FY 20142 (1.731 million) and a few more than the 1.667 million in 2013. But check out the totals for the years before that:

2012: 1.871 million
2011: 2.870 million
2010: 2.754 million
2009: 2.708 million
2008: 2.534 million
2007: 2.375 million
2006: 2.046 million
2005: 2.290 million
2004: 2.100 million
Source.

However, another bit of datum I noticed was counterintuitive: Revenues from municipal courts did NOT decline as rapidly as the number of warrants issued. The number of Class C arrest warrants dropped 42 percent from 2011 to 2013, for example, rising slightly thereafter. But revenue from municipal courts only dropped 3.1 percent from 2011 to 2013. Even by 2015, municipal court revenue had only dropped 7 percent, though the reductions in ticketing had been in place for several years.

One could hypothesize a number of explanations for that outcome, but it's hard to be sure from the information in the above sources. Maybe it means more money was extracted per arrest warrant even as the total warrants declined. Maybe it means the reduction in traffic tickets and warrants somehow caused more defendants to successfully complete their payment terms. Hard to tell from the information available, even if a cynic's suspicions might be raised. So make of that anomaly what you will.

One thing this does show us is that limiting municipal judges' ability to issue arrest warrants or empowering them to waive fees instead of issue warrants won't necessarily result in a big revenue hit. When arrest warrant totals declined over the last few years by steep margins, the resulting revenue drop empirically was (to me) surprisingly small.

Letting judges waive fines up front for indigent defendants makes sense

Grits was happy to see Rep. James White's HB 50, making a simple but needed change in Texas statutes surrounding indigency and payment of fines. Looking at the bill language, The East Texas Republican would allow JPs and municipal court judges to waive fines or substitute community service before defendants default  and have warrants issued, instead of afterward. Rep. Terry Canales, a Democrat, filed an identical bill styled HB 351.

This guest post from Ted Wood gives a good explication of the current state of the law surrounding these questions and the need for reform.

First Waco biker case headed to trial in January

The absurdist mockery of justice going on surrounding the Twin Peaks biker cases - in which  154 bikers were indicted on first-degree felony charges for conspiracy after nine were killed in a shootout  - continues unabated, below the radar screen of anybody but apparently Tommy Witherspoon at the Waco-Tribune Herald. The first defendant has now requested a trial and the case is set for January.

The request comes as the McLennan County District Attorney’s Office continues to provide hundreds of thousands, if not millions, of pages of discovery materials to the bikers’ defense attorneys, including copies of police reports, hundreds of hours of audio and video recordings of the incident and subsequent interviews with bikers, 700,000 pages of cellphone records, tens of thousands of photographs and Facebook posts.

Discovery had been repeatedly delayed but now:

defense attorneys involved in the Twin Peaks cases have been given five rounds of discovery from the DA’s office, which is required by statute to provide any and all evidence to the defense, regardless of whether the evidence points to guilt or innocence. 

The DA’s office recalled the sixth round of evidence last month after it was discovered some of the bikers’ cellphone images that were released contained child pornography.

County officials have been keeping the public in the dark about the expense of the prosecutions, but Witherspoon takes a stab at estimating the different components of the cost:

In the meantime, county officials are contemplating how to fund the huge expense of prosecuting all the cases. McLennan County Auditor Stan Chambers said the county has paid $62,026 so far in court-appointed attorneys’ fees. That total will multiply dramatically as the cases drag on and as the 70 to 80 court-appointed attorneys continue to review the mountain of discovery at $75 an hour for out-of-court time and $80 an hour for in-court time. 

As the first cases are tried in McLennan County, the potential remains for changes of venue for remaining defendants. Trying the cases away from Waco would double or triple the cost to the county, officials say. 

As more bikers go to trial, their attorneys likely will feel the need to hire experts in a number of subjects, including ballistics, crime scene analysis, DNA and others, which also will increase the costs to the county. 

And it has been suggested the DA’s office could upgrade the charges against a few of the bikers to capital murder and seek the death penalty in those cases. Capital murder cases are extremely expensive and include year after year of appeals if there are convictions.

The defense attorneys for the first guys up say that, despite hundreds of thousands of pages of discovery, they have yet to find any inculpatory evidence accusing their clients of crimes. Earlier a defense attorney speculated that no one may be successfully prosecuted since the actual shooters involved in the massacre were all killed by police snipers. So the overwhelming majority of defendants were simply witnesses at a crime scene, not perpetrators, a fact which raises the question: Why hasn't DA Abel Reyna dropped charges against un-involved parties long ago?