Banning arrests for Class Cs, giving drivers notice, would improve traffic-stop culture

My favorite part about SB 271 by Sen. Konni Burton, and its companion, HB 567 by Rep. James White: Not only does the bill ban arrests for non-jailable offenses, preventing episodes like Sandra Bland's tragic arrest for failure to signal a lane change, the text includes this provision requiring police officers to inform motorists of that fact:

Sec. 543.0045. NOTIFICATION REQUIRED DURING TRAFFIC STOP.
(a) An officer who stops a motor vehicle as a result of a person's alleged commission of a misdemeanor under this subtitle that is punishable by a fine only shall promptly notify the person that:

(1) the alleged offense is a misdemeanor under this subtitle that is punishable by a fine only; and 

(2) the officer may not arrest a person solely on the basis of that offense.

(b) The Texas Commission on Law Enforcement by rule shall specify the language that is required to be included in the notification described by Subsection (a).

That will significantly alter the culture of and interactions at traffic stops between police and motorists, foregrounding motorists' rights in their conversation as opposed to only the officers' prerogative, and letting the driver know what to expect. At present, officers in many departments are trained to do the opposite: Pepper drivers with disconcerting personal questions trying to find a reason to search or arrest them. But if drivers know what they're being stopped for and that it will not result in their arrest, that will lower tensions at traffic stops and make the situation more predictable and manageable for all parties.

Time for Texas to 'Raise the Age' for adult crimes from 17 to 18

Youth from around the state will arrive at the Texas capitol today to support raising the age of criminal responsibility from 17 to 18. The event comes on the heels of the suicide death of 17-year old Emmanuel Akueir last week in a Fort Bend County Jail cell, highlighting the particular strains which are placed on young people when they're locked up as adults. This tragedy emphasizes why Sheriffs have been supportive of the idea: their facilities aren't really designed to house and manage juveniles, and youth like Mr. Akueir pay the steepest price.

Texas is one of seven states where the age of criminal responsibility is below 18, and other such jurisdictions are also reconsidering the policy. In North Carolina, Politifact evaluated claims that a short-term investment in raising the age would save money in the long run. They dubbed the claim "mostly true," concluding that:

other states have found juvenile justice reforms including taking teenage offenders out of adult prisons do lead to less crime and long-term savings – possibly as much as $10 for every $1 spent on reform. Yet despite all the evidence about long-term savings, there’s also no denying there would be short-term cost increases for state government.

We're talking about systems, not static investments, and the idea that a small short-term expense may generate long-term savings is pretty typical in the criminal-justice field. For example, Texas' investments in treatment and programming on the adult side beginning in 2007 have prevented billions in prison spending. But many of the legislative leaders who pushed through that effort are gone now and it remains to be seen whether the Lege can be convinced to go that route for 17-year olds in a tight budget climate. It's the smart move from a good-government perspective, but good government isn't the sole or even main goal of every politician these days, readers may have noticed.

The Texas Tribune recently dubbed the Raise-the-Age proposal the top priority for juvenile justice advocates this session, providing this analysis:

The top issue for juvenile justice advocates this session will be pushing to raise the age of criminal responsibility from age 17 to 18. State law has considered 17-year-olds adults for criminal purposes for decades, but critics say the practice could do more harm than good to children, who they say have no business being locked up with adult offenders instead of being treated with 16-year-olds and younger people in the juvenile justice system. 

Legislation to make the age change failed in the 2015 session, and supporters have vowed to try again. If Texas does not enact the change, lockups in the state would continue to risk being at odds with federal law – the Prison Rape Elimination Act, which bars 17-year-old inmates from being within "sight or sound" of inmates 18 and older. County jails have had issues being able to comply with federal law because of lacking resources.

Concerns have been expressed whether the juvie system has capacity to handle 17 year olds, but the proposal comes at a time when juvenile incarceration AND crime have been plummeting for a decade, both in Texas and nationally. Texas incarcerates around 20 percent of the number of youth inmates compared to a decade ago, with juvenile crime continuing to drop as the state decarcerated. So capacity isn't Grits' biggest concern. Rather, I fear the relatively small sums required to implement the change may loom larger in a tight budget year than in a session where they have enough money to pay the bills.

Most Texans already think the age of criminal responsibility is 18 and typically only find out otherwise if their high-school-junior son is arrested and charged as an adult. But laws serve the public better if they match the public's perceptions, and most people don't consider kids "adults" before they can vote, much less drink. Treating a 17-year old as an adult is a legal fiction whose time has passed. Texas should change the law this year.

CORRECTION/UPDATE: This post originally said Texas was one of nine states treating under-18 kids as adults, a number I'd recalled from memory. LBJ School lecturer Michele Deitch emailed to say the total is actually seven. "Louisiana and South Carolina raised the age last year," she advised. Not exactly liberal bastions, those two states. Perhaps that momentum will help convince Texas legislators that it's politically okay to do this.

Tyler mayor to run B&B for racially profiled black men, and other stories

Blogging was slow last week but that doesn't mean there weren't quite a few items in the news which merited Grits readers' attention. Here are a few of them:

Medical neglect at TDCJ espied after prisoner death

Alton Rogers died of head trauma in an Amarillo prison unit about a year ago after his cellmate slammed his head into the concrete. But autopsy results and medical records revealed he was extremely malnourished and significant medical problems had long been neglected by TDCJ which also contributed to his death. The Intercept has excellent coverage of this story. 

Tyler mayor to run B&B for racially profiled black men

Heisman trophy winning running back Ricky Williams was stopped by cops in my hometown of Tyler earlier this month and questioned in an exchange caught on police dashcam. He'd been taking a walk around his hotel, where he was staying in order to attend an awards dinner for Earl Campbell's foundation, when a homeowner called the cops to report a black man had been standing near his back fence. In Tyler, this apparently will get three cops sent to the scene ASAP. Two of the officers recognized Williams before they stopped him. But the third did not and began to aggressively question him, even lying to him to try to get him to confess to a crime. He told Williams he knew "more than you think I know," including that Williams had been in a neighbor's backyard, not just walking past it. Williams didn't bite, but he did question whether this was a racially motivated stop. This spurred the other two officers, who by this time probably knew the encounter was about to end up online, to interject that this is how they'd treat anyone in this circumstance and try to defuse the situation. Later, Tyler's mayor Martin Hines reached out to the former Miami Dolphns star, offering to let Williams stay in his personal family home the next time he's in town. (“I even invited him to stay with my family when he’s here. We have a guest room he’s welcome to.”) Grits imagines the mayor similarly extends this offer to all black men in Tyler who feel they've been racially profiled by police, don't you think? No chance Williams only got that offer from a starstruck mayor because he's a celebrity and a famous Texas football player. Nah! That can't be it.

Expunge this

For those in and around Austin, the UT law school's Expunction Project will hold a couple of intake sessions next month. Go here for more information.

Austin gets new police monitor

I don't know the new Austin Police Monitor, but the last one, Margo Frasier, was the best we ever had. She made the most of what, on paper and in practice, is a weak and ineffectual office. But it possesses a bully-pulpit function that only works if the Monitor uses it. She did. Will her successor? That's the question lingering in my mind. We'll know soon enough.

Dallas pension fight further devolves

Talks over a pension deal in Dallas have completely broken down and the city may soon pull out of the pension fund and create a new one going forward. Police unions' scorched earth tactics probably will preclude additional negotiations (anybody who questions their demand for a bailout is immediately dubbed a liar, said to have "conned" officers, accused of hating the retirees, etc.), setting the stage for years of litigation that's in the best interest neither of taxpayers nor retirees. The likelihood that police pensions drive the state's second largest city into bankruptcy increased this week.

'New breed of prosecutors'

Freshly minted DAs in Austin and Houston were among those profiled in the Marshall Project item about reformer prosecutors elected on the same day as Donald Trump. I'm kind of surprised they didn't mention Nueces County, which was truly a race decided on reform issues. In Harris, the flip was more rooted in partisan shifts that also impacted the judiciary and other countywide offices.

Death decline

This item from Houstonia magazine credits better-quality lawyering for Texas having the lowest number of executions last year in two decades. And that's certainly part of it. Unmentioned, though, was a change in the law from 2015 which required prosecutors to notify the defense when they request an execution date from a judge. This additional notice has given the defense heretofore unavailable opportunities to challenge execution dates at the time they're requested, rather than find out later only when the judge issues an order based on an ex parte request. Some of those whose dates were delayed will still eventually be executed, but the change prevents some of the last-minute wrangling and postponements that historically surround such events, While the effect likely is short-term, that new law probably explains the dip in executions in 2016 better than broader macro factors like attorney quality.

Harris DA accused of withholding snitch deal, conflicting testimony

Attorneys from Baker Botts have alleged in filings to the Texas Court of Criminal Appeals that Harris County prosecutors engaged in misconduct in a capital murder case, failing to disclose that a key witness "had provided two separate and conflicting statements to police," as well as failing to "disclose a deal not to prosecute another prosecution witness in exchange for his testimony."

Reduce drug penalties, expand treatment, opportunities for addicts

Treatment, not incarceration, is key to reducing drug-related crime, wrote the executive director of Austin Recovery in a column calling for reducing penalties for low-level drug possession from a state-jail felony to a misdemeanor. "Lowering penalties for minor possession can save Texas more than $60 million – funds that can be used to decrease the waiting list for treatment and overdose prevention. Decreased penalties also mean that people with addiction still have the opportunities to achieve their full potential," she concluded.

Cowtown cop's disciplinary file secret

See an update from AP on the episode out of Fort Worth in which an officer arrested a black mother and daughter while verbally defending the white man who had allegedly assaulted her son. The story noted that disciplinary records for past incidents involving the officer are secret unless they resulted in a firing or suspension. That's a problem not just for public accountability but also for prosecutors. In cities which have adopted the state police and fire civil service code, prosecutors similarly lack access to "impeachment" information in disciplinary files of officers they put on the stand as witnesses, although they have a duty under the Michael Morton Act to disclose such information. The Legislature needs to plug this gap in the MMA, which puts prosecutors in a particularly rough spot.

Crime by the numbers

Vox took a deep dive into the new FBI crime statistics providing important context to the "American carnage" demagoguery emerging from the White House these days.

Pretext-based policing and arrests for non-jailable offenses

Grits was on a panel yesterday at an event at the UT Law School with Austin's interim police chief Brian Manley on the subject of pretext stops and and arrests for non-jailable misdemeanors. Since I was on the panel, I didn't take notes, but wanted to recount one (to me) telling exchange.

Chief Manley opposed pending legislation by state Sen. Konni Burton to eliminate most arrests for non-jailable offenses, saying there may be situations where it is still necessary. Asked what those might be, however, he could only name one: The officer might suspect the driver of other crimes.

And yet, Grits replied, isn't that the definition of a pretextual detention? If the officer had probable cause to believe a more serious crime had been committed, they could arrest the person. If they had reasonable suspicion, they could conduct a search. But having only suspicion that is less than "reasonable," Chief Manley wants authority to arrest motorists anyway for a Class C misdemeanor, just in case, basically on an officer's hunch. Those on your correspondent's side of the issue don't believe officers should have that power: That's the crux of the debate.

When the session was over, Grits walked out of the room with fellow panelist House County Affairs Committee Chairman Garnet Coleman, who is a joint author to the House companion to Burton's bill. A gentleman approached to tell Coleman he had been a police officer in Florida for 20 years and arrests for non-jailable offenses were verboten there under the state constitution. That limitation had never prevented him from doing his job, he assured the chairman. He predicted Texas cops would experience growing pains during the transition if such arrests were banned because they're so accustomed to using that extra leverage against people, but assured the chairman that it's perfectly possible to perform policing functions without it. Here's hoping Texas gets to find out.

Treating criminal justice 'like a business,' and other stories

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

Violent crime remains low
FBI crime data is out for the first half of 2016. See the full report. After reaching historic lows, violent crime ticked up each of the last two years, mostly concentrated in a handful of cities. Meanwhile, property crime continued to decline. Bottom line, the "American carnage" theme is politicized horse hockey, an analysis from Vox found.

Kelly: Treat criminal-justice policy like a business

UT-Austin Prof. William Kelly says if you want government to behave like a business, apply cost-benefit analyses to criminal justice policy. I've been meaning to review Kelly's new book, The Future of Crime and Punishment, which is sitting on a shelf in front of me, but haven't gotten around to it yet. Maybe soon.

Dallas pension debacle devolves

Talks have broken down between the city of Dallas and the police/firefighters pension fund. Recriminations, lawsuits, are forthcoming. Dallas can't cover the shortfall without gutting all other aspects of city government. Pensioners could stop receiving checks in a little more than a year if the status quo remains. What a catastrophic mess.

CLEAT makes specious attack on DA

CLEAT has been attacking the Tarrant County DA over releasing video of a police shooting, but the DA appears to have been in the right. Which, for CLEAT, is no reason not to attack her. Makes for better press than the pension fights, after all.

Money grubbing motives shouldn't stop transparency

Court records are public but 95 counties don't want them put online, mainly because they couldn't then overcharge $1 per page for copies. This is not a valid reason not to do it.

I love my new job
This week, more than 2,500 Just Liberty supporters emailed their state senators to support abolition of the Driver Responsibility surcharge. Now, go here to send messages to Texas House members asking them to repeal this misbegotten law.

Junk science watch
Voice analysis is another "shaky" forensic discipline.

Guilty plea problem
The national Innocence Project has a new website focused on the problem of innocent people pleading guilty, exploring examples, causes and solutions.

Ferguson-effect argument demeans police professionalism

At the Washington Post, Radley Balko picked up on themes from this Grits column on "de-policing" and elaborated in a story titled "Why are police groups and their advocates advancing a theory that makes police officers look terrible?" As a journalist, wrote Balko, criticism of his profession "makes me strive to do my job better, not worse. I’d like to think most law enforcement officers feel the same way." Read to the end, he does a good job with the topic.

Senate committee wimps out on driver surcharge abolition

In its interim report, the Texas Senate Transportation Committee surprisingly recommended various technical methods for reducing Driver Responsibility surcharge costs - including expanding the offenses to which the program applies in order to lower the cost of each surcharge - rather than suggesting how to abolish them. According to the report, "Due to fiscal consequences, an all-out repeal would not be plausible and the legislator [sic] should consider perhaps looking closely at phasing the driver responsibility program into a points system while leaving Driving While Intoxicated (DWIs) as the lone program to collect the existing surcharges."

Grits calls the recommendation "surprising" because in 2015, that committee passed legislation to abolish the surcharge. In the interim report, four of the nine members added letters to say they disagreed with the recommendation not to abolish the DRP. Many of the proposals listed have been kicked around in the past by hospital interests which receive the money, so these are recommendations on behalf of the recipients of the funds, not the general public who are paying.

By contrast, Sen. Don Huffines wrote in his dissent on the DRP:

the state cannot continue to justify programs that are uneccessarily onerous to Texans merely based  on the revenue thatthese programs generate for the state. To do so would be the antithesis of a limited government philosophy that we should espouse at every turn, where we act on the belief that dollars that stay in the private sector are better spent or invested by families and job creators than they are by state government. It is neither conservative nor compassionate to insist that a debtors' prison, such as the DRP, should be perpetuated to provide a strictly punitive, immoral, and entirely unreliable revenue source for government.

Sen. Bob Hall wrote that the committee's recommendations "would be seen by many Texans as a side-stepping of major issues and a complete dismissal of the fact that less than half of the fines and penalties derived from the DRP are being allocated to the Designated Trauma account, complaining that, "The report itself gives only cursory acknowledgement at best to concerns with the program's impact on low income Texans and divergence from the initial intent of the legislation." Grits agrees with both those critiques.

Don't get me wrong: Moving no-insurance and invalid license cases into the point system instead of keeping them as standalone surcharges would be better than a sharp stick in the eye, especially if they also included provisions to eliminate surcharges through community service and mandated another amnesty, to help all the people screwed over by this misbegotten program in the past. But Huffines and Hall are right that abolition should be the goal.

Nobody wants to de-fund the hospitals, so to cover the amount they've been receiving the Lege needs to come up with around $80 million per year. In a budget the size of Texas' even in a tight fiscal climate, that is not an insurmountable task; it's a function of whether legislators possess the political will. Budgets are moral documents. And failing to abolish the Driver Responsibility surcharge after one is educated about the harm it causes is an immoral choice.

RELATED: From Just Liberty: Encourage your Texas senators to abolish the Driver Responsibility surcharge.

See mo Grits, hear mo Grits: Two speaking gigs this week

The Lord blessed your correspondent with a face made for radio and a voice made for print, Grits has often observed (the missus once ruefully added, "and opinions best reserved for solitary reflection"). But apparently somebody thinks it's a good idea I should speak in public and, as fate would have it, Grits has a couple of speaking gigs this week in Austin about which I thought I'd make readers aware:

On Wednesday at the Deadliners Club, a local journalist's gathering, I'll be on an hour-long discussion (7pm - 8pm) on journalism and activism at Rio Rita on 12th and Chicon. Abby Rapaport is moderating, with Forrest Wilder and Jessica Luther also weighing in. The panel will focus on distinctions between opinion, news, and fake news. Grits hasn't practiced professional journalism in a quarter century, but I was apparently invited to expound/defend portions of Grits' Ten Maxims for Making Journalism Relevant in the 21st Century, which I'm always pleased to do.

On Friday morning, first thing, your correspondent will be on a panel about misdemeanor arrestees that Rebecca Bernhardt mentioned earlier at the UT Law School, sponsored by the Texas Journal on Civil Liberties & Civil Rights.

Both are free but registration is required for the UT event. I'm looking forward to them. These are both among Grits' favorite topics.

Forensic Science Commission deserves funding, and other stories

A few odds and ends which merit Grits readers' attention:

• The Texas Senate zeroed out the budget for the Forensic Science Commission, despite that agency having been charged with licensing all forensic technicians by 2019. Surely that cannot stand. The House budget continued to fund the agency with small cuts.
• The Houston Chronicle makes the case for raising the age of criminal responsibility in Texas from 17 to 18.
• TDCJ bans more than 15,000 books in Texas prisons; in Utah, they ban only two.
• A TDCJ prison guard is facing retaliatory prosecution after he released video of fellow officers improperly using tear gas in a fashion which injured an inmate.
• Whoops. Frio County hired a fake cop to run its jail.
• Jerry Hartfield's conviction was overturned. Then he waited inside TDCJ 32 years while nothing happened. 
• Here's a useful Texas Appleseed handout promoting bail reform.
• See a roundup of state decarceration initiatives from 2016.
• Proud of my friend Vanita Gupta as she leaves the DOJ Civil Rights division. We've all come a long damn way since the Tulia drug stings.

'De-policing' meme dishonors those who sacrificed

The Austin police union president claimed the city is becoming victim of "de-policing" because, over the weekend, police did not immediately shoot and kill a man at the very first opportunity, although they did so later. "They could have used that force earlier, but they didn't," he told KVUE.

[Ken] Casaday said the officers waiting to use deadly force may be a result of something called "de-policing," a trend he sees happening across the country. 

"Officers are feeling so much pressure from the scrutiny the media have put on them. They just are not making the stops and taking the risks that they used to... Sometimes it's just easier to go out and answer your calls and not be proactive, because really when officers are proactive is when they get in trouble," Casaday said. 

In Austin, Casaday said de-policing started after former officer, Geoffrey Freeman, shot and killed a naked and unarmed David Joseph last year. A shooting that cost Freeman his job, even though he was criminally cleared.

This is the "Ferguson effect" argument recycled. Since this meme first arose, Grits has never understood why law enforcement spokesmen would suggest something so insulting to their own profession. Basically, the argument seems to be that officers will stop doing their jobs if people criticize them. For my part, I've never known a police officer with that mindset, so it's a bit jarring to see this I'm-too-big-a-pansy-to-do-my-job meme asserted as some sweeping mentality that's gripping the entire profession. I suppose it could be true, but Grits finds it unlikely and thinks there are other explanations for the data. 

Further, the argument tarnishes the nobility of sacrifice by people like Little Elm Det. Jerry Walker, who died in a standoff with a gunman this week in which the suspect was also killed. He didn't shirk his duty or fail to step up when it was time. And it doesn't honor the memory of officers who've lost their lives to portray the bulk of the profession as cowards who would fail to risk such a sacrifice if the public were in danger because criticism had wounded their pride. Not only is that libelous meme untrue, it undermines public trust needed for the policing relationship to work.

Before the Ferguson-effect meme, when Grits heard the word "de-policing" I usually thought of officers faking cases to satisfy numbers-driven policing demands, like drug-arrest quotas generating dozens of false convictions in Tulia, detectives and informants framing illegal immigrants in the Dallas fake drug scandal, or more recently, police officers in Arlington turning in fake tickets for traffic stops they never performed. These cases aren't so much about officers shirking their duty because of media scrutiny as they are aggressive but overworked officers in agencies with poor supervision feeling pressure to make big numbers. That's a bigger concern to me than the idea that police officers may cease performing their duties because some protester or columnist said something rude about them.

It's rather shocking to me that a police union boss would attribute such unprincipled motives to his members. IMO he's not doing them any favors.

Misdemeanor Arrestees and the 85th Legislative Session - UT Conference

Several issues related to misdemeanor defendants- debtors' prisons, bail reform, and racial disparities during traffic stops- will be hot topics at the legislature this session. National and local media coverage, much of it focused on the tragic circumstances surrounding the death of Sandra Bland, has educated and outraged more of the public than ever before. Powerful legislators with the ability to push reform have already filed a number of bills to address these injustices faced by low-income Texans. There is a growing consensus that current practices waste taxpayer money, decrease public safety, and are fundamentally unfair.

The Texas Fair Defense Project is co-hosting a conference at the UT Law School on January 27th that will feature expert panels of advocates, policy makers, and academics discussing the specific problems and proposed reforms. Grits, joined by Representative Garnet Coleman and Ashton Woods from Black Lives Matter, will kick off the first panel on racially motivated pretext stops. Next, TFDP executive director Rebecca Bernhardt joins other experts to talk about pretrial reform and the need to move from a money-based bail system to a risk-based system. The final panel takes on modern-day debtors’ prisons; it’s hard to believe that in 2017 people serve jail time for not being able to pay traffic tickets, but the practice is widespread.

We’d like to see you there. For more information and to register, visit the Texas Journal on Civil Liberties & Civil Rights webpage. CLE credit is available for attorneys.

Exhibit A: Austin PD DNA lab mess argues for independent crime labs

What a breathtaking mess the managers of Austin PD's now-closed DNA lab finds themselves in, and how fortunate for former Chief Art Acevedo that he picked up a new gig in Houston before all the details of the story came out. This writer has criticized APD under Acevedo for focusing too much money and attention on patrol while downplaying the importance of investigations, support staff, and civilian functions like the crime lab. All those issues are now coming home to roost in the form of Austin PD's DNA lab disaster.

The lede to the latest Statesman story on the Austin DNA lab fiasco offered examples of red flags which should have prompted earlier review:

Long before the Austin Police Department’s DNA crime lab was shuttered, prosecutors and defense lawyers were second-guessing its work. 

In 2009, prosecutors raised red flags about DNA results in a rape case, later dismissed the charges against the suspect and eventually hired two private labs to double check the department’s results before refiling them. 

In 2015, a rape suspect’s trial expert said the lab’s results were so riddled with corrections and bad math that the defense should order new tests. 

And in early 2016, prosecutors hired an expert to review 17 criminal cases for potential problems. That expert found mistakes in all of them. 

The story concluded:

Every case the APD lab touched needs to be reviewed, [defense attorney Darla] Davis said. 

“This has been bad,” she said. “It’s bad for both sides. It’s a catastrophe for the whole criminal justice system.”

She's not overselling it, this is a mind boggling mess. If I were a chief with a crime-lab attached to my department, I'd be looking to offload it to some other agency with scientific expertise, or as an independent entity, like in Houston.

Let's call this story Exhibit A in the case for why cops shouldn't be in charge of scientists.

'Money is coined liberty': Bail where economic populism meets the justice system

Recounting life in a czarist prison, Fyodor Dostoevsky wrote that "money is coined liberty." He could have been referencing 21st century American bail systems - long ago abandoned at the federal level and nearly everywhere else on the planet - in which one defendant may remain in jail while an identically situated person goes free, based entirely on who has access to cash.

We're still waiting for soon-to-be-filed legislation aiming to reform Texas' bail system. Such legislation would implement recommendations from the Texas Judicial Council to move away from money bail toward the use of risk assessments (to a greater or lesser extent, as remains to be seen) in determining whether to incarcerate people pretrial. In the meantime, though, the topic of bail reform percolates continuously in other states and at the local level. Here are a few examples of which Grits readers should be aware:

• The Atlantic: How cash bail keeps the poor in jail
• LA Times: California's bail system punishes the poor, and it's time for the government to do something about it
• FiveThirtyEight: New Orleans scales back its extensive, expensive bail system
• The Lens: New Orleans City Council eliminates bail requirements for most petty crimes
• NPR: New Jersey banking on shift from bail money to risk assessment
• NJ.com; Bail reform is killing our business, bail bondsmen say
• SA Express-News: Rules for bail punish the poor
• Dallas News: Why Dallas County can set $150,000 bail for a $105 shoplifting charge, and how taxpayers lose
• Dallas News (ed board): Why burn up Dallas taxpayer dollars to lock up alleged petty thieves?
• Dallas News; Dallas county officials pledge reforms after News' investigation into high bonds for nonviolent defendants

Incarceration rates and crime: A counter-intuitive relationship

The lock-em-up logic of mass incarceration holds that prison expansion keeps more criminals off the street and therefore reduces crime. But that's an hypothesis, not a fact. Luckily, differing incarceration policies among states in recent years have supplied a natural experiment to test the theory, which turns out to be full of holes. In fact, a new analysis from Pew analyzing the state-by-state data found that jurisdictions which reduced incarceration most saw higher drops in crime rates.

Crime has declined across the western world and throughout the United States since the 1990s, but at the state level there have been variations. From 2010 to 2015, according to Pew, 35 states saw reductions in incarceration rates while 44 states saw reductions in violent and property crime.

Digging more deeply, the states which reduced incarceration most saw higher crime reductions. "In the 10 states with the largest imprisonment declines, the crime rate fell an average of 14.4 percent, compared with 8.1 percent in the 10 states with the biggest growth in imprisonment."

Of the 10 states with the largest imprisonment reduction, Texas' rate remained by far the highest. Still, Texas' imprisonment rate declined 12.9 percent from 2010 to 2015, emblemized by the closure of three prison units, while our crime rate declined 23.3 percent.

Pew offered this understated conclusion: "The lack of a consistent relationship between the crime and imprisonment trends reinforces the findings of the National Research Council and others that the imprisonment rate in many states and the nation as a whole has long since passed the point of diminishing public safety returns." Grits would put the lesson from their research more plainly: The evidence shows incarcerating fewer people does not correlate with increased crime and in fact, correlates more strongly with larger crime reductions.

Corrections committee contemplates non-violent drug offenders

"The original intent of state jails fell apart," according to the section of the Texas House Corrections Committee's interim report (pp 43-61 of pdf) on nonviolent drug offenses, because the Legislature prioritized incarceration for addicts over treatment.

Who is nonviolent?
From the committee's perspective, "Nearly 80 percent of individuals in the Texas criminal justice system have substance abuse problems. Substance abuse is by far the most common crime-related problem among offenders. Some individuals enter the justice system because of a drug charge. Others enter on other charges, but drugs are clearly implicated." The report acknowledged the penny-wise-pound foolish flaw in such thinking: "if you are incarcerating the same person over and over again, the costs to actually rehabilitate would be less than incarceration."

Grits should mention here that Fordham law professor John Pfaff has been pushing back on this meme that addiction and the drug war drive crime and mass incarceration. He tends to blame reformers like New Jim Crow author Michelle Alexander for overstating the role of the War on Drugs in promoting the modern prison state. Pfaff points out that offenders convicted of violent crimes far outnumber inmates convicted of drug offenses in US prison systems, a pattern that also holds for Texas. But he poo poos the idea that drug abuse is a causal factor for other crimes.

By contrast, in Grits experience, the idea that drugs are responsible for most crime has historically been a law enforcement meme that reformers had to respond to, even if now Prof. Pfaff would blame us for engaging in the debates of the day without benefit of 20/20 hindsight. Moreover, there's little doubt drugs play a role in some portion of violent offenders' cases. In Dallas, for example, the interim chief blamed their recent murder spike in part on armed raids of drug houses by competing cartel factions. And back when murder rates were super high in the early '90s, much of the carnage stemmed from drug dealers feuding with one another over turf. So some unquantified amount of violence certainly does stem from the drug war (though what ratio, Grits cannot form even an educated guess).

Indeed, the committee's definition of "violence" may be more expansive than Prof. Pfaff's. They identified 46 low-level drug possession crimes on the books, but concluded the list by opining that, while the laws "are technically considered non-violent, they are not emotionally non-violent."

Whatever one's definition, non-emotional violence has declined over time in Texas, while low-level drug convictions continue to rise. "While the overall number of people sent to prison dropped between 2011 and 2015, the number of people sentenced to state jail for drug possession was two percent higher in 2015 than in 2011. It costs the state more than $67 million to incarcerate people in state jails for low-level drug offenses in 2014."

State jails evade prison oversight
The committee heard testimony from a few people who thought state jail terms for drug offenders should be lengthened so that (mostly nonexistent) treatment programs will have time to work. But the committee wasn't interested in the extra expense. They also raised in passing an interesting notion Grits hadn't considered in years - that state jails were created as a separate entity from the formal prison system in order to take these prisoners out from under prison oversight litigation:

An interesting side note: one of the reasons the state jail system was created was to ease overcrowding in the prison system and the county jails. But the fact that they are meant for short-term confinement means that they do not fall under Ruiz constraints. Lengthening the confinement period could result in future litigation revolving around these facilities.

I'd forgotten about that distinction. Grits tends to agree that state jails are a failed experiment and the original intent behind them was long ago supplanted by the state's 90s-era incarceration fetish. At the end of the day, promises of treatment and rehabilitation were a fig leaf to justify building new beds that wouldn't be subject to prison oversight litigation. One could add, those who do not learn from history are doomed to repeat it - the intermediate sanctions facilities created in 2007 similarly would be excluded from Ruiz prison oversight regimens because of short lengths of stay. At the time, to my knowledge, no one in the advocacy community considered that element.

Recommending a path forward
The committee's recommendations on punishing drug users track some of items Grits predicted last year would rise to the fore of justice discussions this session:

Legislators should consider lowering the penalties certain felony drug charges that are considered non-violent in nature. For instance, drug activity in a school zone automatically becomes a felony, when an individual may not even be aware they are in a school zone. Specifically, charges that involve personal possession of small amounts of marijuana should be examined. This means possession ONLY, not manufacturing and/or delivering. Offenders should still be considered for a treatment program, no matter if the charge is reduced to a misdemeanor. 

Further, regarding enhancements on drug crimes:

Legislators should consider narrowing the scope of penalty enhancements, particularly offenses committed in drug-free zones. Such zones can be difficult to distinguish, especially in urban areas. Obviously, there is a difference between someone selling a controlled substance to a minor on school property, and a motorist being stopped in a school zone with a controlled substance in his car. This committee is not advocating a free pass for any offender, rather the circumstances of the violation and previous arrest records (if any exist) should be taken into account. 

They recommended funding a system set up in 2011 to incentive probation departments not to revoke petty offenders. Moreover, "Pre-trial release programs should be considered for non-violent offenders, to make room for those who need to be there."

See prior Grits coverage of other sections of the committee's interim report:

• Committee backs boosting programs to prevent recidivism
• House Corrections Committee rethinking probation fees

Community service in Austin muni court no sweet deal

Payment counter at Austin municipal court

Grits was at the Austin municipal court today with someone who'd allowed a warrant to be issued for a traffic ticket when she couldn't pay. I'd convinced her that, as she was in fact demonstrably indigent, she could get the warrant withdrawn by agreeing to perform community service. That turned out to be true.

Working from a preset formula with no inquiry as to her individual circumstances, the judge demanded 37.5 hours community service for a $460 fine - nearly a full work week for a single traffic ticket. That's about $12.26 of the fine waived per hour worked. Given that the estimated value of volunteer time for nonprofits is nearly double that (vis a vis how much they can estimate its value as an in-kind contribution), plus the fact that indigent people tend to have transportation issues and family obligations that might make a full week of community service onerous, that ratio seemed low to me. I bet the low rate contributes to people not completing community service and having their warrants reissued.

For more background and context on the vagaries of community service at muni court, see ACLUTX's Know Your Rights brief on Traffic Tickets and other Class C misdemeanors in Texas.

Most TDCJ sex assault victims housed in just a few units, most victimized by staff

Here are a few highlights from a recent report on sexual assault in TDCJ put out by the Texas Association Against Sexual Assault and the Prison Justice League.

Their report represents a significant bit of research. They examined federal Bureau of Justice Statistics data on sexual assault in Texas prisons and sent a voluntary, confidential survey to prisoners who had self-reported sexual assaults at some point during their incarceration. This research was supplemented by correspondence with inmates who responded to the survey.

A disproportionate number (41.2 percent) of inmate sexual assault victims self-identified as LGBTQ, the survey found, confirming a pattern where inmates deemed gay or even just effeminate may be more likely to become victims.

Survey respondents reported sexual assaults at 15 prison units across the state with the majority of reports coming from three units: Estelle (Huntsville), Robertson (Abilene), and Allred (Iowa Park). A whopping 58.9 percent of respondents said they were assaulted by a staff member, which jibes with past investigations into sexual assault at TDCJ. "In 2014, 766 allegations of staff-on-offender sexual abuse and sexual harassment incidents were reported to the PREA Ombudsman by unit-level TDCJ staff." They cited a 2015 Marshall Project report showing that, nearly half the time, local prosecutors refuse to pursue cases involving staff-on-inmate sexual abuse. When they do, "Of the 126 staff members convicted of sexual misconduct or assault, only nine were sentenced to serve time."

Just as there's an argument for creating a division at the Attorney General to prosecute police misconduct to take decisions out of the hands of local prosecutors, there's an equally good argument to be made for doing the same thing when prosecuting TDCJ guards. Elected, rural prosecutors understandably are reticent to go after workers at the largest employer in town, and may feel more in common with TDCJ staff than their victims. That's a recipe for justice denied.

The federal Prison Rape Elimination Act has created new tracking and record keeping to shine a light on prison rape, the report found, but the Ombudsman function is notably underdeveloped. TDCJ employs 152 people in its Safe Prisons/PREA management offices around the state, but only one Ombudsman and an assistant to process 1,041 allegations of inmate-on-inmate alleged sexual abuse incidents across 109 facilities in 2013, and 1,467 in 2014. That's simply not enough warm bodies to perform the job properly.

The report included the following recommendations:

• Establish independent oversight to evaluate TDCJ facilities. (Paging Michele Deitch!)
• Halt the practice of placing sexual assault victims in solitary confinement "without thoroughly exhausting alternative protective measures."
• Increase resources to the PREA Ombudsman office.
• Improve the offender grievance system with better training for staff and accountability for failing to respond to victims.
• Involve outside agencies in assessing PREA compliance.

Inside the plea mill, how bad prosecutors cause bad policing, and other stories

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

• Inside the plea mill in San Antonio: "Little-noticed jail court offers inmates a fast track." Related, from the SA Express-News: "Rules for bail punish the poor."
• Eva Ruth Moravec recounted the stories of seven off-duty police officers who shot and killed people in 2016 and differing DA policies about presenting such cases to a grand jury.
• Read how Harris County Sheriff's deputies mistook a sock full of cat litter for meth thanks to faulty field tests which have been responsible for dozens of false convictions.
• Jail failures criticized after Dallas inmate's beating death.
• Will 2017 finally be the year Texas requires police to record custodial interrogations?
• The Texas Inmate Family Association urged greater transparency and oversight at TDCJ.
• Bexar County's probation officers are represented by the local steelworkers union, according to this TV news story. Their union presidents keep getting fired.
• The Texas Lege faces a $7 billion shortfall. Will they close prisons by eliminating private prison contracts to make cuts at TDCJ? Otherwise, their current budgetary growth curve is unsustainable.
• Before the election, criminal justice reformers had stopped losing, reported Jacobin magazine, but hadn't yet started to win. For example, "Reformers have touted conservative Texas, which shed 2,100 inmates, as a model. But Texas still suffers from a sky-high incarceration rate — more than four times higher than Maine’s."
• From Slate: "How bad prosecutors cause bad policing."
• In the wake of shootings in Dallas and Baton Rouge, police officers say their jobs have gotten more difficult and dangerous, according to a new poll, although officer fatalities "remained far below record highs set in the 1970s." 
• From Forbes: "Another constitutional protection that's eroding - double jeopardy."

Texas' top judges hold summit to address trust in criminal justice system

Thanks to Grits contributing writer Eva Ruth Moravec for attending this event in Dallas. Grits had wanted to go but ended up at the dentist instead, so I appreciate her writing it up.

A daylong summit on race in the justice system for Texas judges recently held in Dallas was initially supposed to be 20-minute shorts aired nationally on the Public Broadcasting Service.

"But we're different here in Texas," said Nathan Hecht, chief justice of the Supreme Court of Texas at the December summit in Dallas. "We decided instead just to invite all the judges."

Personal invitations from Hecht and Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, were enough to summon 50 Texas judges out of their courtrooms on a weekday and into a heavily secured auditorium at Paul Quinn College. Total attendance at the summit was about 200.

The need for the curriculum - whether in televised shorts or taught live - arose in the wake of the fatal shooting of Michael Brown and riots that followed in Ferguson, Missouri, in 2014, Hecht said. Over the past 12 months, he said, the Conference of Chief Justices has been working on how to keep the community from distrusting courts.

"We need to be proactive about trust issues and to enhance trust," Hecht said. "We're concerned about how courts are affected by mistrust."

He opened the summit with a montage of news footage from high-profile shootings by and of police, then asked attendees to reflect quietly. Otherwise, the day was completely packed by the summit's planners, including state supreme court Justice Eva Guzman - the wife of a Houston police sergeant and daughter of immigrants - with interesting speakers.

"A single day is certainly not enough time to restore complete trust in the justice system," Guzman said, adding she hoped attendees realize how their life experiences affect how they handle things.

Keynote speaker Houston Police Chief Art Acevedo implored attendees to be courageous, bold and to "put away broad brushes. Don't be afraid to lose your job."

The theme of courage united several of the day's diverse speakers and panel participants, like Emily Thompson, a Dallas Area Rapid Transit officer who is back to work after her husband was killed in an ambush attack along with four others officers last summer.

Arielle Clarkson, a Paul Quinn student, said the strangulation of her brother by a police officer 10 years ago "shattered my understanding of what it meant to be protected by the police." She hopes to become a lawyer to address injustices.

 At St. Paul United Methodist Church in Dallas, a program called Together We Learn tries to bring the community and law enforcement together for things like basketball games so their interactions aren't always negative.

"The harsh reality is, people of color, when we see the police, we think something's wrong," Senior Pastor Richie Butler said. "We have to change perceptions and see people for who they really are - humans."

Cornell Law School professor Jeffrey Rachlinski said even the well-intended have biases and lectured on human beings' decision-making processes. He advised judges to start recording demographics and outcomes of their cases so they are more aware of disparities.

(Rachlinski's suggestion was one of two I heard throughout the day on how to improve trust in the courts; the other was an idea from Hecht for trial judges to explain their rulings.)

To demonstrate how underlying biases may affect juvenile justice, former state judge and professor F. Scott McCown moderated a panel of experts who told the audience what would happen to a hypothetical foster child who got in trouble at a new school. Sadly, most panelists concluded the youngster would eventually end up in jail.

"We have to get past race," said criminal defense attorney Carmen Roe of Houston, a panelist whose pretend-task it was to defend the troubled foster child.

"How do we make changes? One person at a time," said Dr. Griselda Villalobos, a licensed clinical social worker in El Paso who regularly works with children in and out of the system.

Although most of the day's dialogue pointed out problems that lacked solutions, attendees seemed pleased they were there. As the summit closed with remarks from Oak Cliff Bible Fellowship's Senior Pastor Tony Evans, sunlight streamed through the oatmeal-colored floor-to-ceiling drapes that had separated the day's events from the campus and surrounding deprived neighborhood.

"We are looking at a fraying society," said Evans, analogizing that high-profile shootings are like cracks in the walls of a home with a failing foundation. "If we get the one thing right, it can solve many things."

Committee backs boosting programs to prevent recidivism

The section of the Texas House Corrections Committee interim report to the 84th Legislature on "recidivism" had some good elements, if not a groundbreaking analysis. Here are a few highlights:

First, it should be mentioned that Texas has among the lowest recidivism rates of any prison system, certainly among large states, in the United States. "Offenders released from prison in fiscal year 2011 had a rearrest rate of 46.5 percent, and a reincarceration rate of 21.4 percent within a three-year period," according to the report. Since in Texas one can be arrested for anything including Class C misdemeanors punishable only be fines, not jail time, many of those arrests are for petty stuff that may not really concern us from a safety perspective. Even so, that's a remarkably low rate; nationally, the rearrest rate is 67.8 percent. And our re-incarceration rate is also lower than the national average (55 percent within 5 years). Texas is one of a number of states where recidivism rates have been falling.

We've discussed before on Grits the reasons why, and it's not because we're doing such a great job of rehabilitating prisoners. Texas has the largest prison population among American states - greater even than California's whose civilian population is nearly half-again ours - and the reason is that we incarcerate more low-risk offenders who could be safely released than do other corrections systems where more rigorous cost-benefit analyses are applied to government activities.

At root, Texas' low recidivism rate mainly stems from the fact that we're over-incarcerating low-risk people to begin with - that many of those folks leaving prison were unlikely to have reoffended even if they'd remained free, and therefore they commit no new crimes when they get out, either. Reserving incarceration for people who pose a significant risk of harming others is a cost-benefit judgement at which the Texas system is not very good.

At present, Texas' system involves a great deal of churn on the low end, especially among drug users, with prisoners entering the system just long enough to receive a life-altering "felon" tag, maybe a prison tat or two and advice from career criminals on how not to get caught next time before being released. Then, on the back end, some elderly prisoners convicted of serious violent crimes are held too long after they no longer pose a big recidvism risk, with their healthcare costs driving up overall costs of incarceration. Both groups contribute to our low recidivism rates, but only because they wouldn't have committed more crimes whether incarcerated or not.

Among some of the good news in the report was the decline in parole revocations for technical violations, which is due mainly to 1) Texas' 2007 reforms, including the creation of intermediate sanctions facilities, and 2) the changing makeup of and decisions by the parole board to reduce incarceration modestly. "In 2006, the Board of Pardons and Paroles revoked over ten thousand offenders. In fiscal year 2015, that number was reduced to about 5500." By contrast, revocations for technical violations on the probation side remain high - about half of all probation revocations.

There's a good discussion in the report of in-prison programming and reentry support services which I won't replicate here but which may interest some readers. In the end, the committee recommended that, "Enhanced funding of Windham and correctional aftercare [for ex-prisoners who received drug and alcohol treatment] should be strongly considered next session." And they suggested that restrictions on occupational licenses for felons should  be reevaluated "to exclude those who have kept a clean record for a certain period of time."

Grits agrees with most of their observations about programming but would only caution to look at the recidivism data with big-picture nuance. If the Legislature stopped incarcerating low-risk offenders who're mainly imprisoned because they're drug addicts, for example, recidivism rates would likely go up over time. But that's only because a low-risk cadre has been removed and the remaining offenders are made up of predominantly higher-risk people. In the context of Texas' specific situation as it relates to over-incarceration, a rise in recidivism rates resulting from decarceration of low-risk offenders wouldn't be the worst thing in the world.

House Corrections committee rethinking probation fees

The Texas House Corrections Committee interim report to the 84th Legislature began with a discussion of excessive fees in the criminal justice system which merits readers' attention. The committee, chaired by Republican state Rep. Jim Murphy, focused on relatively obscure aspects of the system which nonetheless are incredibly important to the people affected by them, both people who must pay and government employees who collect them. On probation, for example:

If someone is on probation, there will be a lot of fees. First, a probationer pays up to $60 a month for supervision. Depending on the crime, there will be program fees for drug education or domestic violence classes. If substance abuse is involved, there will be costs for random urinalysis tests, and perhaps an ignition interlock (for DWI cases). If you have lost your license, which happens with any drug conviction, you will have to take a class to renew that license. Once the class is completed, you will need to go to the Department of Public Safety and pay between $125 and $325 to get your license back.

Larding on court costs

The committee examined various court fees, particularly ones aimed purely at revenue generation:

The 83rd Legislature directed the Office of Court Administration to study the necessity of certain court costs and fees in the state. The report outlined several troubling trends (link added).

Many of the court fees and costs, whether deposited at the state or local level, are not dedicated fees and are simply deposited in the general fund of the state or local government. They are then appropriated at the discretion of the funding body. 

Some of these court fees and costs are used to fund programs outside of and unrelated to the judiciary. Meanwhile, court fees and costs are generally insufficient to cover the cost of funding the judiciary at the local government level, with expenditures for the judiciary oftentimes far surpassing collected revenues for court fees and costs.  

There are hundreds of these fees, with a few dozen of them ending up in state coffers. 

The best known Texas court fees are "consolidated court costs," which run:

Up to $133 for felonies, $83 for misdemeanors, $40 for nonjailable misdemeanor offenses. Ninety percent of collected funding goes to the state for 14 purposes, including; crime stoppers assistance, abused children's counseling, law enforcement and custodial officer supplemental retirement fund, judicial and court personnel training fund, and emergency radio infrastructure account

Many fees are spent in ways which have nothing to do with their ostensible purpose. A $250 DNA fee on sexual assault cases, for example, is split between general state coffers and  the highway fund, with no relationship to funding the activity for which it's named. The committee could have added that this is happening at a time when DNA labs are underfunded and strained trying to keep up which evolving science, not to mention re-testing backlogs of DNA-mixture cases that were evaluated using flawed methodologies. 

Half of the state portion of the fee for "failure to appear" goes into the general fund with no specification that it be used for purposes related to that purpose. A $15 fee paid by bail bondsmen for each surety issued contributes to the state's Fair Defense account and to supplement salaries for assistant prosecutors. (That latter element may be a big, unstated reason some district attorneys dislike bail reform.)

The report added, "There are fees for records management, for juries, for judicial support, for court security, and for indigent defense. Pages and pages of fees. It boggles the mind to read it. Think of what it must be like to live it."

Notably, the committee observed, "Ability to pay these fees often isn't determined until later in the process. When a judge sentences a person to probation, and assesses fees and costs, he or she often has no idea if that person can actually pay. That is often left to the CSCDs, whose officers help the probationer draw up a budget to help them manage their obligations." They added, "In an era when you can find out your credit score for free on the internet, would it be that difficult to determine if a person is indigent prior to appearing before a judge?" Good question!

Relationship between fees and absconding

The interim report included this insightful passage about the relationship between high probation fees and absconding:

Although it may seem simple: pay your fees, attend your programs, etc., real life isn't that way. And for those who lack life skills, real life is challenging in a way that it isn't for those of us who have resources. 

And most of us are still living precariously. An Associated Press Poll indicates that threequarters of people in households making less than $50,000 a year and two-thirds of those making between $50,000 and $100,000 would have difficulty coming up with $1,000 to cover an unexpected bill. And being arrested would definitely qualify as unexpected. 

If someone has been convicted of a minor drug offense (less than a gram of a controlled substance that is not marijuana), there are a number of studies that indicate he or she is likely unemployed and experiencing deficiencies in educational attainment. He or she probably has substance abuse and mental health issues, and could be homeless. One-third of these minor drug offenders are under the age of 25, experiencing all that one might experience in terms of low impulse control and developmental factors. 

If you have resources, you probably take them for granted. These include access to cash, orparents who can help you out with a loan; trusted friends who can give you good advice or a ride when you need one; a permanent home. You have a job, you are educated. These things help to keep you out of trouble. 

If a person without these types of resources is ordered to attend a DWI program, but has no one to drive him to the program (because license revocation is part of DWI), then there are parts of the state where there are only two choices: drive to the program without a license, or forgo the program. Either one is reason to have probation revoked. 

Situations like this can be discussed and dealt with by a probation officer, who is likely to NOT revoke your probation on this technical violation. After all, life happens. But conversations like this are stressful. And standing before a judge is scary. So those without the skills to maneuver the stress see only one option: avoid the problem. Don't show up for scheduled meetings. Unfortunately, that's called absconding, and when the probationer is finally located, he or she will be in a lot more trouble than before.

Incentives for poor 'inadvertently created modern-day debtors prisons'
The committee explicitly recognized that probation fees and obligations have become so onerous they're creating incentives for defendants to choose incarceration over community supervision, even when locking them up serves no purpose from a public safety perspective: "because those who are poor and have no resources choose jail time, we've inadvertently created a modern day debtors' prison," they concluded, adding that the problem had also reached acute stages at municipal courts over Class C misdemeanor offenses, and extending the same criticism to the bail system:

Failure to pay isn't limited to the probation system or the municipal courts. Texas county jails currently detain 40,300 inmates who are awaiting trial, representing over 62% of the entire jail population of the state. The decision about who is released and who is detained before trial is determined primarily by a person's financial resources rather than his or her risk to public safety or likelihood to return to court. The National Association of Counties has found that 60% of the confined population presents a low risk of pretrial misconduct. 

These kind of statistics add to the consensus that being imprisoned for lack of resources is the same thing as making poverty a crime. And although municipal courts and pre-trial detainees weren't officially part of this committee's charge, it is worth mentioning as part of an overall trend. And that trend also contributes to overcrowding county jails, which is mistakenly seen as being caused by state policies.  

Rethinking probation as a payment plan
They concluded that the state should assume more of probation costs, allow more defendants to earn early release from probation through good behavior, and eliminate as many collateral consequences as possible:

Perhaps it is time to think of probation as a payment plan. If you have been given probation for one year, fulfill all of your obligations such as classes and restitution, and discharge six months ahead of time, that's great. However, you should still owe six months of probation fees. 

Conversely, no one should be kept on probation merely because they still owe restitution. If one year of probation is up, and restitution is still owed, then a payment plan should be set up for the restitution. And since that person is no longer on probation, CSCDs should no longer be collecting that restitution. 

During testimony heard by the joint committee, it became clear that many of those convicted of a DWI face uneven sanctions. If someone convicted of a homicide goes on probation for ten years, that person can be removed from probation after a few years if they do not get into further trouble. Not so for DWIs. It makes no sense to keep a DWI on probation if they attend classes, quit drinking, and go several years without further incident. 

A federal program mandates automatic suspension of a driver's license for any drug conviction, including a small amount of marijuana. Getting a license back can cost a lot of money, and Texas has the ability to opt out of the federal program. The state should do so. 

The fee system for probation should not be done away with entirely. In fact, the upcoming session promises to be a difficult one, with agencies encouraged to start looking at possible budget reductions now. Fees have a place in probation, as those who pay for a program are more likely to attend that program. However, when jail time is chosen over probation, the fees are too burdensome. For that reason, the state should start to assume more of this cost, which would likely be less expensive than paying for unnecessary incarceration.

The state should consider allowing a CSCD to receive full state share of misdemeanor probation, but allow for non-report for minor offenses. Consideration should also be given to a system where those charged with Class B misdemeanors complete a class or perform community service rather than complete the full term of probation. This would allow CSCDs to dedicate their time and energies to people with a more intensive level of need. 

The committee posed a provocative, new-to-me idea: "If probationer fees could be collected from individuals after they have completed treatment and achieved employment and housing stability, revocation rates should be lowered." That's a useful, interesting suggestion that makes a lot of sense. However, it's also true, as this section of the report concluded, that "until the state bears a greater burden of the costs of rehabilitating people" and shifts away from regressive probation and court fees, "real reform will be difficult."

House Corrections Committee issues juicy interim report

There's all sorts of interesting stuff in the new House Corrections Committee interim report. From debtors prison policies to pretrial detention to how to handle nonviolent drug offenses to solitary confinement and reentry, this document covers a lot of ground. More this weekend after I've had a chance to go through it, but for now Grits wanted to share the link.

Huffman should include cops in union-busting legislation

If unionism is supposedly bad for public employees, why is it somehow good for cops?

SB 13 by state Sen. Joan Huffman - which is one of Lt. Governor Dan Patrick's stated priorities - would eliminate payment of union dues directly from public employees' paychecks except for police, fire and EMS unions.

Include police unions in the ban and Grits might go for that idea. They're the main source of public-employee-union generated economic headaches at the local level, from excessive salaries bloating the budget in Austin to vitriolic attacks on the city manager in San Antonio to massive unfunded pension liabilities threatening to bankrupt the city of Dallas. They're also the unions most frequently throwing their weight around in local elections, to the detriment of both officer accountability and city budgets.

If the goal is to reduce organized labor's stranglehold on local budgets and politics in Texas, police unions are the place to start.

If tough-on-crime works so well, what's up with murder spikes in Texas cities?

So mass incarceration is working because crime is down, right?

Then what to make of the fact that Austin, San Antonio, Dallas, Houston, and Arlington all experienced significant increases in murders this year, as various media outlets have reported (although official data won't be available for a few months as the final cases of the year are categorized)?

These increases occurred despite Texas incarcerating more people - including more violent criminals - than any other state in the country. They occurred despite vast probation and parole systems monitoring hundreds of thousands of offenders in the community. They happened at a moment when more Texas cops are employed at more Texas law enforcement agencies than at any time in history, and in an era when Texas prosecutors have been granted nearly unfettered discretion. And it occurred even though the largest faction on the Court of Criminal Appeals essentially finds for the government in almost every case.

If big-government tough on crime policies failed to prevent murder spikes in Texas - which can hardly be accused of blue-state leniency when it comes to filling up courtrooms, jails, and prisons - then maybe it's not worth the expense?

That said, as is always the case when dealing with crime stats, one must place these increases in context. In Austin and San Antonio, headline writers emphasized that murder totals were the highest in two decades, which is certainly true. However, Austin had just one fewer murder in 2010, so the number isn't that much of an outlier from recent years. And besides, both Austin's and San Antonio's populations have grown monumentally since the mid-'90s (as has Arlington's, which saw an eyepopping increase in murder numbers this year). So, even after these recent spikes, murder rates remain low by comparison and residents of those cities are safer today, by a longshot, than 20 years ago. That's worth emphasizing more than press reports have done so far.

The press and public focus on murders because a) they're among the most egregious crimes b) they often come with the most compelling stories, and c) the numbers for murders are among the most solid in the crime-data realm because the dead are easy to count. Other crimes are less easy to categorize: Is it a burglary if later investigators come to suspect, but could never prove, that an adult child living with their parents was the real thief? How about if mom and dad decide not to press charges or later claim they were wrong and nothing was stolen? There are no such ambiguities when it comes to murder victims.

OTOH, murders are rare events, their numbers are generally small compared to other crimes, and totals can fluctuate quite a bit year to year for no apparent reason. Even with large, single-year spikes, one learns over time to look for long-term trends, not short-term fluctuations, to understand what's really happening. All of these cities have experienced one-year increases in murders before over the past couple of decades, even though the overall trajectory for each has been downward.

And what's happening may be different in different cities. After all, there's nothing connecting murderers but the outcome of their actions. They're solely responsible for what they do and police realistically have few means to prevent them from doing it. The cops' job is to clean up after them.

In San Antonio, the chief insisted that, “What we’re seeing now is a lot of spontaneous murders,” adding, “It’s really difficult to put a reason on it.” Dallas has also seen a spike, the majority of which the department attributed to home invasions of drug houses. But then, two years ago Dallas was crowing that its murder rates were the lowest since 1930. In Austin, the Statesman reported the murder total was "highest in nearly 20 years," but didn't mention that the per capta rates are now much lower because of the population boom. (Good for AP, which added that tidbit to their version.) Percentage increases look bigger when starting numbers are extremely small.*

Murders are terrible things but to act without understanding rarely achieves the desired results. And overreaction can also have its costs. As Chief McManus in San Antonio warned, attempts at “'arresting the problem away' or 'overpolicing' could just lead to distrust." When rare events like murders do happen, there needs to be a modicum of community trust for police to find and make use of leads, witnesses and other such indispensable assets.

I led off this column by joking about whether the murder spike means mass incarceration "works." The jibe is intended in part at my fellow Texans who've belittled other jurisdictions like Chicago or Los Angeles when they've suffered violent-crime woes. The truth is, crime has very little to do with government enforcement policies and is broadly more responsive to other societal trends and cues.

IMO, cops, prosecutors and prisons didn't have much to do with the bulk of the crime decline of the last two decades, so if they keep doing what they do and crime goes back up, that won't surprise me either. But it should surprise, and concern, anyone who has believed the tough-on-crime hype surrounding the benefits of mass incarceration. Even in red-state Texas, incarcerating more people than anywhere else, we're not immune to national trends and can't pretend being tougher has achieved any better outcomes. It hasn't.

*Pro tip for news consumers: When you see the words "fastest growing" in a headline or news article, substitute "smallest" to understand what the reporter is really describing. Things grow fast when they start small and their increases are relatively large compared to a tiny denominator. H/T to John Pfaff for harping on that observation.

Pot proposals, waiting on bail reform, and other stories

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

Juvenile justice agenda detailed
Following up on the Texas Appleseed/Texans Care for Children report on school discipline, the Dallas News editorial board suggested this agenda for juvenile justice reform in 2017 at the Texas Lege: "Find funds to help schools hire more counselors and mental health professionals; eliminate the use of tasers and pepper spray on students if a weapon is not involved; improve data collection on police activities in schools to better understand the complexities of the school-to-prison pipeline."

Waco DA: We don't need no stinking evidence
The first trial of a biker charged after the 2015 Twin Peaks shootings will occur in April, nearly two years after the event. These are weird cases. In the overwhelming majority there is no individualized evidence against the defendants. A prosecutor in the story said the trials would take about two weeks, but that presumes there's evidence to present that these individuals participated in a conspiracy. By all accounts, for most of them there's not. Here's a Grits prediction: When all is said and done, when trials are all over and appellate courts are through with it, I don't believe the number of people convicted of any crime related to the shootings, out of the 155 who've been charged, will ever reach double digits. The McLennan DA long ago entered witch hunt territory regarding these cases, and so far the judiciary has declined to rein him in. But even in Waco, Texas, you can't convict dozens of people with no accusatory evidence at all. And in the main, that's the Kafkaesque situation in which the overwhelming majority of these 155 defendants seemingly find themselves.

Bail reform poster-child
This Dallas News story offers up a poster-child case for bail reform: "Why Dallas County can set $150,000 bail for a $105 shoplifting charge, and how taxpayers lose." We still haven't seen legislative proposals yet implementing the Judicial Council's bail reform recommendations. But in the meantime, New Jersey is implementing a risk-assessment based system which assumes most defendants will be released while awaiting trial. Grits hopes the Texas bill follows suit.

Pot proposals
Here's a Fort Worth Star Telegram article detailing the various bills softening penalties for low-level marijuana possession being filed at the Texas Lege. The new Houston police chief, Art Acevedo, is predicting Texas will shift policies on pot. Also, in the Bryan College Station Eagle, retired District Judge John Delaney supported "decriminalization" of marijuna - a term which one discovers upon entering the debate means different things to different people. In Texas' context, "decriminalization" means backing HB 81/SB 170 creating a new civil penalty for pot possession instead of making it a criminal charge like a traffic ticket. Wrote Delaney:

Supporters of "decriminalization" argue it's a better approach because it doesn't result in the numerous collateral consequences of a normal conviction. One of those is an automatic 180-day driver's license suspension, regardless of whether the offense was connected to driving a vehicle. And license reinstatement isn't automatic, unlike release from jail after serving a sentence. To get a license back one has to file an application, pay a $100 fee, buy expensive "SR-22" insurance, and complete a 15-hour drug education course. 

Another consequence is a permanent criminal record of the conviction. It can affect employment opportunities for a lifetime. Just ask any small business owner about how hard it is to hire an employee with any drug conviction on his or her record, even if it happened more than a decade earlier. 

Another advantage to "decriminalization" is that it begins with a citation instead of an arrest. That avoids the two hours of police time it takes to process someone who's arrested, leaving officers free to respond to calls such as burglary or domestic violence.

Cornyn key for D.C. justice reform
Grits fails to see why criminal-justice reform legislation couldn't pass under a Republican Congress. We've won reform measures in Texas with an all-R government. Maybe Texas Sen. John Cornyn can pass his sentencing reform bill now that there's no risk that a Democratic president might claim credit for the success.

Prison Policy Initiative 2016 retrospectives
Our friends at the Prison Policy Initiative ended the year with roundups of 2016's best criminal-justice commentary (including a couple of Grits items), the year's best research, and their own wish list for "winnable" reforms in 2017. Lots of good stuff amidst those links for those with a little reading time on your hands.