Rethinking criminal punishment: UT professor's new book

It's time to change the way that criminals are punished in the American criminal justice system, argues William R. Kelly in his latest book, "From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice."

"For decades, we've been asking, 'What is the crime committed, and how much punishment do they deserve?'" said Kelly in a recent interview. "We're saying, ask a different question: 'How do we keep them from coming back?'"

This is the third book authored by Kelly, a University of Texas professor and director of the university's Center for Criminology and Criminal Justice Research, and his first collaboration. Contributing authors were U.S. District Judge Robert Pitman, a former U.S. Attorney, and Dr. William Streusand, a psychiatrist.

In the book, the trio gives evidence of what Kelly calls the "clear, understandable relationship" between criminality and factors like mental health, substance abuse, intellectual deficits and neurocognitive impairment. These issues are largely unaddressed in the current punishment process, but Kelly says that understanding them could keep people from committing new crimes.

"Some people need to be punished, but many don't," Kelly said. "Our proposal is for an independent panel of experts to screen and assess offenders as they come into the system and make determinations in part based on their risk of re-offending."

The closest existing example of the concept is diversion courts such as mental health or drug courts, which require lots of resources and typically have small caseloads. Kelly said it's also not unusual for criminals to have more than one problem - mental health and substance abuse, for example - and his concept would address them all.

 Kelly said the book is conceptual and "big-picture stuff," meant for professional stakeholders involved in the criminal justice system. "It's almost like we're presenting a challenge: Here is what the evidence says is the way to do things. Who's going to get on board?"

What follows is excerpted from Kelly's latest book.

* * * 

Excerpt From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice,
Rowman and Littlefield, June 2017

William R. Kelly

Robert Pitman

William Streusand

Since the early 1970s, American criminal justice policy has had a nearly singular focus—the relentless pursuit of punishment. From Congress to state legislatures to local city and county governments, the mission was clear and deliberate.

The problem is that despite all the appeal, logic, and common sense, punishment doesn’t work. How could we have been so wrong? Why has severe punishment not done the trick? The answer is quite simple: The vast majority of criminal offenders have multiple disorders, deficits, impairments, and conditions that are fundamentally related to their criminal behavior, which punishment does nothing to change. These are not excuses. They are reasons for criminality. How does incarceration fix bipolar disorder or executive dysfunction due to traumatic brain injury? How does a stint in jail solve addiction to drugs or raise one’s IQ? Most of us have no idea what growing up in an environment of poverty and violence is like or what impacts it can have on cognitive development, mental health, substance abuse, and engaging in risky behavior. However, there is nothing in tough or attempts to address them. We have put nearly all of our eggs in the punishment basket. But the evidence is clear—that is the wrong basket.

All told, tough-on-crime policies and the war on drugs have drained roughly $2 trillion of public money. Recent research puts the annual price tag of crime, including direct criminal justice costs as well as a variety of collateral costs, at $1 trillion. The recidivism rate over this period has hovered north of 65 percent. We suggest it is impossible to conclude that this is a reasonable return on investment.

One of the fundamental points of departure we propose is that we are asking the wrong questions. What we currently do leads to the reflexive question of how much punishment. As we consider the variety of mental health, substance abuse, and intellectual and neurocognitive disorders, impairments, and deficits that many justice-involved offenders have, we hope it will become clear that we need to rethink how we go about the business of criminal justice, of dealing with people who commit bad acts but do so at least in part because of psychiatric, intellectual, and neurocognitive disorders and impairments. We should ask a different question—what will it take to reduce the likelihood that this individual will reoffend?

We are not proposing a massive get-out-of-jail-free program. What we know is that criminal prosecution and punishment is not productive in cases like these. We propose an alternative that focuses less on blameworthiness and more on the severity of any disorders, impairments, and deficits, and that shifts attention away from retribution to recidivism reduction.

There is plenty of blame to go around for our high recidivism rates. Much of it is on the offender. But it doesn’t (and shouldn’t) stop there. It is important that the government (including elected officials, policymakers, prosecutors, judges, and corrections officials, among others) recognizes its role and accepts its share of responsibility for the revolving door of the justice system. We assert that for most eligible cases (individuals with significant mental health and substance use disorders and/or neurocognitive and intellectual deficits and impairments), the best way to reduce the probability of recidivism is by diverting appropriate individuals into community-based programs focused on evidence-based behavioral change coupled with risk management strategies.

We propose that a new, formal diversionary option be added to the criminal justice system, in which the expertise of a variety of professionals be brought to bear both on the identification of individuals appropriate for diversion and on the development and implementation of programs to keep them out of the traditional correctional system in the long run. We propose a system that includes a more formalized sorting process with defined criteria and the involvement of not only prosecutors but also experts in a variety of relevant disciplines. These experts, acting as a team and following an established protocol, would be presented with offenders whose offense conduct and background suggest that they might be candidates for diversion from prosecution. These teams would make assessments early in the process—post-arrest but typically pre-indictment. And they would have the ability to make a recommendation to the prosecuting authority that an appropriate individual be put on a different path from the one that would otherwise lead to incarceration or simply punishment, one that would involve a program of treatment and supervision appropriate to their needs. Likewise, we propose that the programs to which offenders are diverted be interdisciplinary and separately funded from prosecuting authorities to ensure that minimizing recidivism remains at the core of their mission. We maintain there is strong reason to believe that fully funded programs run by experts in the field using evidence-based programs and practices have the prospect of substantially lowering recidivism rates.

We have attempted to imagine a criminal justice system that, as an alternative to the reflexive and expensive incarceration of offenders or punitive supervision and control, effectively addresses some of the underlying drivers of criminal behavior, resulting in fewer people reoffending. The optimal goal of any system of punishment should be the return of an offender to the status of a law-abiding citizen. The evidence is clear that the way to do that for hundreds of thousands of offenders is through concerted, evidence-based rehabilitation. Second, there is an obvious economy to identifying offenders who can be diverted from incarceration at the outset (initial savings) and given the treatment or other means to stay out of prison forever (ultimate savings). To continue to incarcerate hundreds of thousands of nonviolent offenders without asking whether, in light of the role of significant disorders, impairments, and deficits, we might use established expertise and resources to address the issues underlying their behavior, would be both unjust and fiscally imprudent.

When does SCOTUS say it's okay for Texas lawyers to be ineffective?

Question: When is it okay for Texas lawyers to overtly provide their clients with ineffective assistance without it jeopardizing their conviction?

Answer (from the US Supreme Court in Davila v. Davis): During state-level habeas corpus proceedings under Ch. 11.07 of the Texas Code of Criminal Procedure. The client has no recourse, no matter how bad their lawyer screws up, under the Supremes' latest hit to defendants' ever-waning constitutional protections. Clarence Thomas wrote for the five-member majority, as quoted by Jolie McCullough in the Texas Tribune:

"Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default," Thomas wrote in his opinion, joined by Chief Justice John Roberts and justices Anthony Kennedy, Samuel Alito, and Neil Gorsuch.

Grits finds this especially frustrating because it's not just death-penalty cases - where defendants receive automatic federal habeas corpus review - where lawyers might provide ineffective assistance. There's no right to counsel for any state habeas proceedings - including the junk science writ created in recent years by the Texas Legislature - meaning lawyers can be ineffective in that work without it weighing into the outcome. That's frustrating and upsetting.

Justice Breyer, in dissent, considered this a situation where “the framework of state procedural law 'makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.'” Under Texas law, as the court "pointed out in Martinez ... the 'initial' state collateral review proceeding [in Texas] 'is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial.'" (It can also happen on direct appeal, but often the trial attorney files those and is unlikely to make an ineffective assistance claim about their own work.) In Martinez, Breyer added, SCOTUS said that in Texas, state habeas “is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim.”

So without a right to counsel at least for purposes of challenging ineffective assistance by one's appellate attorney through a habeas corpus writ, Texas' law and judicial practice have essentially extinguished defendants' rights to challenge it at all in many cases.  And five members of SCOTUS have now enshrined that perverse outcome into law unless the Legislature or state courts seek to change course.

The outcome reinforces the outcry from Judge Elsa Alcala in a separate case in which she called for providing counsel for state habeas claims in a notable dissent. Doing so would not only better protect defendants' constitutional rights, but also modulate and streamline the workload of the Court of Criminal Appeals, which is annually flooded with pro se writs. That would help weed out frivolous claims and make it more likely the CCA can spot the valid ones.

Make Grits Philosopher King and I'd suggest Texas should create a public-defender office for appeals and writs comparable to the Office of the State Prosecuting Attorney on the government's side, with a specific mandate for representing defendants' state habeas claims.*  But the Legislature this year balked even at spending a much smaller sum to cover direct appeals in death-penalty cases (HB 1676) - and failed to give the Office of Capital and Forensic Writs extra money to cover representation in junk-science writs - so at the moment, political will is lacking.

As a final, notable aside, McCullough pointed out that:

This was the third Texas death penalty case heard by the U.S. Supreme Court this term, which began in October and ends this week, but it was the first time the justices sided with the state over the inmate. In February, the court agreed with inmate Duane Buck that his case was prejudiced by an expert trial witness who claimed Buck was more likely to be a future danger because he is black. And in March, the justices sided with Bobby Moore, declaring that Texas’ method for determining intellectual disability for death row inmates was unconstitutional.

* Before someone suggests it, keeping the State Counsel for Offenders as an arm of TDCJ instead of making it independent, like the SPA, has prevented it from ever aspiring to play such a role.

Pretext stops subvert public trust, undermine rule of law

A prosecutor from Limestone County, seeking to justify what appears to be a classic pretext stop of a driver, in April posed this question for their colleagues on the Texas District and County Attorneys Association User Forum:

I have a suppression issue with a defendant coming to a stop at a red traffic light, then turns on her left turn signal. After a few seconds she then switches to the right turn signal, then proceeds to turn right. I was wondering if anyone knows if I can say she violated 545.104 for not "signaling continuously for not less than the last 100 feet of movement before the turn" or if the fact that she came to a complete stop at the red light negates the 100 ft rule. Thanks!

Another prosecutor from Brazos County chimed in to assure our protagonist that "you're 100% good" on such an interpretation. So, suggesting you'll turn left with your turn signal, changing your mind, then signaling and turning right is a criminal act, according to this myopic and uncharitable view.

The first prosecutor mentioned a couple of supposed case cites to support this position, but when Grits looked them up, neither seemed on point.

This law requiring drivers to signal 100 feet in front of a turn is a near-constant source of shenanigans by cops on the roadside. It's one of the more common "pretext stop" offenses - when officers are using a traffic stop as a phony excuse to stop and search drivers.

There's no driver out there who has never violated this law, in part because it's frequently an impractical and wrongheaded suggestion to follow.  E.g., if there's a business entrance or alley within 100 feet of the turn you're taking, it can be confusing to others to use the turn signal prematurely. And anyway, how good are you at estimating exactly 100 feet?

Moreover, who hasn't changed their mind about their destination, signalling one way then realizing some prior obligation meant you needed to go the other? (Considering the question, there's a stop sign a few blocks from my home - where one direction goes downtown and the other to my daughter's place - where Grits probably does that several times per month!) The driver wasn't accused of turning from the wrong lane, so the turn, if signaled, would have been legal from that spot.

A law that everyone routinely violates because of its arbitrariness and impracticality becomes a path for the government to bypass 4th Amendment protections. Police can simply follow anyone they choose for a few minutes and wait for a signal less than 100 feet before a turn. Then they get a supposedly legal if objectively dubious basis to conduct a roadside search.

This is the sort of behavior by cops and prosecutors which erodes public trust of law enforcement by treating the law as a tool to violate people's rights rather than an agreed set of rules clearly designed to protect them and keep everyone safe on the road.

TDCAA: Some Texas probation, parole orders may violate new SCOTUS ruling on sex-offender access to the internet

How will the new Supreme Court ruling in Packingham v. North Carolina - which forbade blanket bans on use of the internet for sex offenders - affect Texas cases? The Texas District and County Attorneys Association offered this preliminary analysis:

Texas does not have a statute that criminalizes a sex offender’s access to social media websites, but Texas does have statutes that permit orders prohibiting a sex offenders’ access to social networking sites, both as a condition of parole (§508.1861(b)(1)(B) of the Government Code) and as a condition of probation (Art. 42A.454(b)(2) of the Code of Criminal Procedure). Based upon the broad language of this decision, it seems likely that a wholesale prohibition of access to Facebook or Twitter or Instagram would be unconstitutional. A more directed condition, prohibiting communication with minors or prohibiting access to chat rooms or dating websites, would seem to be permissible, even under this decision. But it is certainly going to create new litigation.

When Mom is arrested, assault by Tazer, and other stories

Having just returned from a brief if much-needed vacation, let's round up a few items that popped up in the last week while Grits was gone:

What happens to kids when Mom is arrested?
The Dallas Morning News published an excellent feature on what happens to kids when Mom gets arrested. Nobody tracks them in the system and neither police or jails ask arrestees about dependent children upon intake. The article included this short video:


Litigation over weather-related deaths at TDCJ heats up
After years of anticipation, TDCJ finds itself in trial this week to determine whether their un-air conditioned prisons which have caused numerous heat-related deaths constitute unconstitutionally cruel and unusual punishment.

Straight ticket voting ends for Texas judges in 2020
The Legislature this year eliminated straight ticket voting for judicial elections beginning in 2020. This should help, but the SA Express News is right it would be better if they were entirely non-partisan. There aren't Democratic or Republican positions on most questions judges must answer and forcing them to pander to their parties primary voters leads to some strange outcomes, like the guy in 2016 who made it into a runoff for the Court of Criminal Appeals running on an anti-abortion, pro-Second Amendment platform unrelated to the duties of the court.

Good legislation still didn't 'end' debtors prison practices
Grits remains exceedingly pleased that Texas' debtors-prison reform legislation (HB 351/SB 1913) passed this year, but to my friends in the MSM: Let's please stop claiming that this will "end" debtors prison practices. It will at best ameliorate them. Texas has improved the situation. It has not solved the problem. People will still be jailed because they can't afford to pay traffic tickets, we just don't know yet what the reduction in jail sentences will be. For that matter, barring intervention by the federal courts, Texas will continue its pay-or-stay bail practices, which in Grits' view also constitute "debtors prison" policies.

Are bodycams effective even with terrible public policies?
A big debate over bodycams is coming and it's going to be a mess. The rollout in Texas came with terrible legislation by Democratic state Sen. Royce West making it secret in many instances and difficult to get in all others, even though dashcam video from police cars has been effectively governed by the Public Information Act with no negative consequences. In practice, bodycams are used far more often to accuse defendants than to hold officers accountable. Indeed, Texas law says officers can view the video with their lawyers before talking to their supervisors about what happened when they're accused of misconduct so that they can craft their story to fit the facts. Criminal defendants, of course, would never be afforded such a privilege. And yet, police officers knowing their actions are being recorded still appears to be having an effect. A new study from the Urban Institute found that people expressed greater satisfaction in encounters with officers who wore body cameras, even when they were unaware of the cameras! So is it worth it despite the one-sided secrecy? Maybe, with caveats. But the secrecy still sucks.

When does Tazing become assault?
An Austin police officer was given a 20-day suspension for Tazing a suspect after the man was handcuffed and not resisting. The officer will undergo a psychological assessment and be placed on probation for a year. A question for the peanut gallery: Is there any good reason why the officer should not have been charged with assault in addition to the department's administrative punishment?

Will more training get Houston lawyers to take indigent criminal cases?
The South Texas College of Law in Houston received a fat $1.27 million grant to train local criminal defense lawyers. From Texas Lawyer:

The school said that in 2016, 451 attorneys accepted about 70,000 indigent appointments of counsel in the district and county courts in Harris County. The top 10 percent of these attorneys accepted indigent court appointments for more than 375 cases each over the course of the year. A report issued by the Texas Indigent Defense Commission in January 2015, "Guidelines for Indigent Defense Caseloads," suggests an indigent defender's annual caseload should be closer to between 77 and 236 cases, depending on the level of offenses handled. 

To join Harris County's list for indigent appointments in criminal court, an attorney must have at least four years of practice experience in criminal law, with at least four felony jury trials acting as lead attorney, that are tried all the way to verdict, the school said. The experience requirements have led to the creation of an exclusive list of older attorneys, with younger one disillusioned with the process, the school said. "Clearly, the system is broken," said [Catherine Greene Burnett, vice president, associate dean and professor of law at the school], noting that the Harris County Public Defender's Office can only reasonably handle about 9 percent of indigent cases.

Keller exoneration a warning parable about witch hunts

Congratulations to Fran and Dan Keller - an Austin couple accused of performing Satanic rituals and sexually abusing kids at their daycare a quarter century ago - on their formal exoneration nearly 30 years after their original false convictions.

The couple was released in 2013 and in 2015 their convictions were overturned. But the Texas Court of Criminal Appeals denied the couple actual innocence relief.

The difference came with a change in leadership at the Travis County DA's office. New DA Margaret Moore reversed her predecessor's stance and agreed to an actual-innocence finding, which is an alternative path to exoneration created by the Lege when Anthony Graves was exonerated but denied compensation because of the CCA's narrow definition of "actual innocence."

The CCA could have refused the agreement, but thank heavens they did the right thing and ratified it. It's long past time to make amends for one of the darkest, most surreal episodes Texas' justice system has seen in many a year. The outcome means the Kellers will each receive $80,000 per each year they were incarcerated, as well as a like amount distributed to them through a lifetime annuity.

In the wake of this happy news, the Dallas News editorial board took the opportunity to warn its readers that Texas and the nation still face dangers from "witch hunts" in the 21st century. Their editorial concluded:

All this matters, because new generations ferret out witches of their own. 

We are witness now to the blanket demonization of Muslims, of immigrants, of black drivers shot during police stops. And too often we rationalize our indifference with "better safe than sorry," or "if you didn't do anything wrong, there's no reason to worry." 

Try telling that to the Kellers.

Texas police almost never punished when they break rules and kill people

An Austin Statesman investigation found that police officers in Texas are almost never prosecuted or fired when they shoot people, even when their failure to follow department rules results in unnecessary deaths. Of the 289 shootings they examined since 2005:

even when officers violated use-of-force policies – using banned tactics, for example, or failing to promptly summon medical help for an injured prisoner — it was rare for them to be charged with a crime. Over the past decade, it happened just a handful of times, a six-month investigation by the American-Statesman has found. It was equally uncommon for officers to face discipline from their departments, such as suspensions or reprimands. 

Instead, their actions are often ratified by supervisors or fellow officers tasked with investigating such in-custody deaths and who often focus more on the conduct of the suspect than police. Similarly, prosecutors in many instances appear to rubber-stamp investigations, infrequently seeking an outside review from a grand jury, even when they have evidence of a possible crime.

In related news, the Dallas DA said Mesquite police officers committed crimes when they Tazed a young man in the testicles who later died from injuries caused from bashing his head inside a police car as he thrashed about. But prosecutors waited until the statute of limitations ran out so no one will be prosecuted. Typical.

Blessed are the Poor: Examining opposition to debtors-prison legislation

Texas State Sen. Paul Bettencourt was quoted by the Associated Press (June 11) criticizing debtors-prison legislation (SB 1913) which he and five others voted against in the senate. He:

said that it did not adequately consider “personal responsibility” and that it provided too much leeway for judges to waive fines. 

“Current law already allows a court to work with indigent defendants who are truly unable to pay court imposed fines,” said Bettencourt, a Houston Republican.

Let's flesh this criticism out. Here's what the bill does that Bettencourt is criticizing:

Under current law, if a defendant is indigent and unable to pay a Class C misdemeanor fine, the judge cannot waive the fine or authorize community service at sentencing. Instead, insensibly, they must order the indigent defendant - whom everyone in the room knows cannot afford it - to pay the full fine, anyway. This judicial fiction drags the process out for weeks or months while everyone waits for the inevitable default.

Then, at that point, if the defendant comes back into court, the judge may waive fines and/or order community service. But many defendants are afraid to return to court for fear of being jailed. Often, warrants are issued instead and the defendant doesn't come back to court until the next warrant roundup or when they're pulled over at a traffic stop. The Office of Court Administration's David Slayton told the AP, “Our belief is that people don’t go to court because they think they’ll automatically get jail time if they can’t pay.”

So when Sen. Bettencourt says, "Current law already allows a court to work with indigent defendants," he's leaving something out: The law actually forbids judges from working with defendants at sentencing, insisting they must impose fines even when the debtor cannot pay. The extra leeway he deplores giving judges would simply let them waive fines and impose community service at sentencing instead of waiting for an all-but inevitable default. The former Houston Controller's Harris County Tax Assessor's goal appears to be to drag the process out so the state can bleed every last dime out of indigent defendants before granting them constitutionally mandated relief. That's cruel and pointless.

Once Class C defendants default, it's true, the court is authorized to "work with" defendants down the line if they do not pay up. But Bettencourt's preferred status-quo approach needlessly extends by weeks or months a process that should take a single hearing. Moreover, it results in many thousands of arrest warrants for indigent defendants who default on a payment plan, and is an affront to common sense and judicial economy. The governor should sign this important bill.

MORE: See an op ed from College Station municipal judge Edward Spillane and former District Judge John Delaney in support of debtor-prison reform legislation. Here's a notable excerpt:

In Texas, fewer than 2 percent of all cases in municipal and justice courts are currently resolved with community service. One in every eight cases is resolved at least partly with jail credit. It is better for communities if people to have more access to community service and avoid going to jail just because they cannot afford to pay a ticket. 

SB 1913 will also ensure that in circumstances where it’s appropriate, judges no longer should wait for a defendant to default on debt before considering whether to waive some or all of what is owed. 

Texas has a well-earned reputation for being tough on crime — but that doesn’t mean we should be putting people in jail because they simply don’t have the money to pay their court bill. We need to be tough and fair. SB 1913 doesn’t mean giving anyone a hand out; it means tailoring sentences and allowing people who can’t pay their bills to work it off in another way. 

SB 1913 will also save Texas cities and counties money. When someone is put in jail for nonpayment of a fine or fee, we all end up footing the bill. This legislation will make it less likely that people go to jail for failing to pay and more likely that they will comply with their sentences. If judges can work with people on plans that make sense for their individual circumstances, they won’t end up in jail — and taxpayers won’t need to be charged for their unnecessary jail costs.

SB 1913 will also decrease the amount of time and energy that peace officers spend tracking down people for unpaid traffic tickets by reducing the number of warrants for unpaid tickets. Currently, 95 percent of the warrants issued in Texas come from fine-only cases, most of which stem from traffic tickets.

NUTHER UPDATE (6/15): This legislation was signed today!! 

Debtors-prison policies decried, DPS cuts license center hours, and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused on preparing for a much-need break next week.

SCOTUS to consider warrants for cell-phone location data
The US Supreme Court will finally consider the constitutionality of accessing cell-phone location data from service providers without a Fourth Amendment search warrant. See a press release from the ACLU, a report from Ars Technica, NY Times coverage, and commentary from Mother Jones. This makes me wish Texas had succeeded in enacting a statutory warrant requirement - an effort with which your correspondent was involved for several years. Doing so would bolster the case for the courts requiring a warrant and provide belt-and-suspenders protection if SCOTUS rules the wrong way.

Budget cuts shorten DPS driver license center hours, but border security fully funded
Border security funding for DPS remained at pre-Trump levels in Texas' new state budget, despite the President's commitment to having the feds step up on border security. In the meantime, though, legislators cut DPS' budget resulting in shortening hours at state drivers license centers. Legislators say they didn't know that would be the result of the cuts, but it's hard to see how anyone believed that cutting the DPS budget while making border security spending sacrosanct could possibly result in anything else but reduced services. MORE: Following a predictable uproar, the governor ordered DPS to reinstate the old hours. Of course, he' can't reinstate the money to pay for it, which was cut in the budget he just signed, so DPS will have to cut services in other areas.

Discussing future dangerousness
A New York Times feature last week featured a discussion of Texas' Duane Buck case and the notion of proving "future dangerousness." The article brought to mind an old Texas Defender Service report from 2004 which found most predictions of future dangerousness by then-commonly used experts turned out to be demonstrably wrong. See also Judge Elsa Alcala's dissent from the Buck case, which was received more favorably by justices on SCOTUS than by her colleagues on the Court of Criminal Appeals. FWIW, Texas executions are down, the Dallas News reported recently, though Grits would expect them to rise again by the end of the year. The main reasons for the decline were a new 2015 law requiring prosecutors to give notice to the defense when they seek to have execution dates set, and Texas' new junk science writ, which has resulted in consideration of additional issues in several cases. Over time, though, most of those cases will end up with execution dates. Executions are slowing, but not by as much as last year's numbers would indicate.

What a screwup
Never convicted, he still spent 35 years locked up in TDCJ: Jerry Hartfield was released this week.

Documenting Texas forensic reforms
Nicole Casarez and Sandra Guerra Thompson have a new academic paper out posted on SSRN last month discussing Texas forensic reforms. Not all of those efforts have worked as well as one might like, but Texas has done more than most states on this front.

Debtors prison policies decried
See testimony from Texas A&M law prof Neil Sobol to the US Commission on Civil Rights related to debtors prison practices, and a pair of academic articles he wrote suggesting consumer credit protections be applied to nonpayment by criminal defendants. This year, the Texas Legislature passed important reforms to limit arrests for criminal-justice debt. See coverage from the San Francisco Chronicle. Then go here to ask Gov. Abbott to sign HB 351 limiting debtors-prison practices.

Governor signs omnibus innocence bill to track informants, record interrogations

Governor Greg Abbott today signed HB 34, Texas' latest omnibus innocence legislation. Grits explained in this post why the eyewitness ID reforms are minimalist, at best, and avoid confronting the reasons flawed identifications still make it into court. In the latest Just Liberty podcast, Mandy Marzullo had this to say about the other key provisions from the bill:

[The] two big provisions that you want to pay attention to are the provisions that deal with recorded interrogations.  Going forward right now, law enforcement will have to record all of their custodial interrogations that deal with major felony offenses which is a huge coup.  Although a lot of law enforcement agencies say that they record their interrogations as a matter of best practice, what this means is that they have to do it.  And, they have to do it every time.  So, it’s a big deal for Texas.

The other issue is informant reform, another big piece of this legislation that requires district attorney’s offices track their use of informants. ... Informants are typically people who are in the jailhouse who report to law enforcement that a defendant confessed to a crime.  And, they testify to this confession.  So, as you can tell, just from the outset, you’re dealing with someone who does not have firsthand knowledge of an offense.  So, it is highly unreliable information to begin with.  And then, it’s incentivized testimony that usually they’re giving their testimony in exchange for some benefit.  And what the tracking does is it allows us to know how often the same person is getting favorable treatment from the prosecution.

Junk-science based false convictions in Houston lampooned by comedian

Someone has finally grokked and managed to convey in an accessible, understandable way the unmitigated travesty of justice surrounding drug convictions based on junk science in Houston. Comedian Samantha Bee aired a devastating 7-minute segment on false convictions in H-Town based on flawed drug field test results.

Grits has covered it. The Austin Statesman has covered it. Pro Publica and the New York Times Magazine have covered it. But no one has so succinctly captured the full scope of how these innocence claims play out in a corrupt system that railroads poor, innocent defendants better than this piece from Bee's show Full Frontal. Go figure.

This story has implications far beyond the borders of Harris County, or even Texas, as these field tests are used all over. And in some jurisdictions, if a defendant pleads guilty like one of the men in this story, crime labs don't always perform the followup test because of backlogs and cost constraints. So the most amazing part isn't the disparate treatment between the two defendants, but that these false convictions were ever brought to the light of day at all. Give it a watch, they did a great job with it:



Kudos to Inger Chandler from the Harris DA Conviction Integrity Unit and James Miller of the Houston Forensic Science Center (the bowtie was a nice touch) for their frank assessments of the problems with these commonly used instruments of junk science, which have caused an eye-popping number of false convictions. And that's just the ones we know about. They've only just begun to address the problem in Houston and no other jurisdiction in Texas is undergoing a similar review of cases based solely on field tests.

Four final notes: 1) It's a sad commentary on the state of Texas journalism that no outlet in this state ever told this story in such a compelling fashion, though all the pieces were there long before a comedian from Canada picked it up. Texas broadcast journos need to pick up their game. 2) The point about differences between outcomes for poor defendants and those with means plays out in every type of case, not just ones where the defendant was framed falsely convicted. 3) Shouldn't police departments just stop using field tests until the science behind them improves? And 4) the story speaks to the tremendous importance of the work at conviction integrity units. They only exist in a handful of DA offices, but they're exposing flaws in the system that we know also occur elsewhere. Like in this story.

Watch this excellent video clip and share it. Great stuff.

MORE: Two things: 1) it should be mentioned that, hours after I posted this, the governor signed HB 34 which includes a requirement that the Forensic Science Commission study the field test issue and report back to the Legislature by Dec. 1, 2018. Grits will try to cover this process, but I'd hope the MSM will, as well. 2) Nicolas Hughes, the lawyer at the Harris County Public Defender Office responsible for filing habeas writs in these cases, emailed these thoughts on the use of unreliable field tests:

Questions regarding the war on drugs aside, field testing presents a complicated problem. I’m all for the preliminary drug tests over the alternative – the officer’s hunch.

The question to me is what does the criminal justice system do with the information it gets from the preliminary drug test, knowing that the information is imperfect? Given that there’s a non-negligible chance that the test result will come back negative or at least differently than expected, I would hope that people would be released on PR bonds and/or a citation at least until a confirmatory test came back. I would also hope that officers receive some annual training on the tests and that agencies implement some quality assurance programs involving the tests.

Gov. Abbott mistakes incarceration smell for "freedom"

Governor Greg Abbott made a speech in Bell County recently declaring that, as one drove north out of Austin, one could notice a different smell, which he declared was the smell of "freedom."

Let's interrogate this for a moment: In 2014, Bell County had 30.3 prison admissions per 10,000 residents, compared to 21.1 in Travis County. (Source.) One county north, McLennan County had a incarceration rate of 48.1 prison admissions per 10,000 that year, more than double Travis County's rate. Going one county further north up IH-35 to Hill County, we get to an incarceration rate of 71.2 per 10,000 people.

So seemingly there's less freedom - in terms of higher percentages of the public being incarcerated - not more, as one heads north from the Austin metro area.

Unless we're defining "freedom" in essentially Orwellian terms to mean the opposite of the dictionary definition (which includes "the state of not being imprisoned or enslaved"), what Gov. Abbott was smelling clearly wasn't "freedom."

Unanswered questions about law-of-parties beyond death penalty

In our podcast the other day, Texas Defender Service Executive Director Amanda Marzullo estimated that 10 percent of death-row defendants were convicted under the law of parties, and discussed the absence of data about how often the law-of-parties doctrine is used in cases involving lesser punishments.

Besides the implications for lower level offenses, which Mandy ably discussed in the podcast, that estimate/observation raises another question to which she did not immediately have an answer: What is the proportion of law-of-parties cases among defendants accused of capital crimes who ended up sentenced, usually via plea bargain, to life without parole (LWOP)?

Grits has never been a fan of Texas' LWOP statute, having believed from the beginning that life with the possibility of parole after 40 years should have still been a possibility. (Most capital defendants are REALLY young.) But if it turns out that law-of-parties convictions happen at a higher rate than among death sentences, it could indicate weak cases are being overcharged and pled.

Certainly we also need to know more about the extent of law-of-parties convictions in non-capital cases - this is a serious shortcoming in the available data, which Mandy says can't be shown without reading trial transcripts. That means it can't be shown at all from the public record when there's a plea deal!

Law-of-parties convictions inherently deserve extra scrutiny, and not just in the capital context. After all, these are cases where defendant's direct culpability could not be proven but the punishment is the same as those for whom culpability is unquestionable.

This is an area which would benefit from an interim study by a legislative committee or advocacy group. But it's a big task. If law of parties cases are resulting in significant numbers of people being convicted who would not be if prosecutors had to prove all the elements of the crime they're accused of, that could be a large enough issue to affect population levels in the medium to long term. So there are reasons to reconsider these questions related to both equity and economy.

Priorities

The headline from the Victoria Advocate declaring that the Texas Legislature prioritized mental health treatment over incarceration is almost Orwellian.

The bill they're touting will add $18 million or so statewide for mental health treatment over the next biennium. The prison system's biennial budget tops $7 billion.

Just Liberty post-session roundup podcast

Here's the latest Just Liberty podcast - this time reviewing criminal-justice reform legislation from the 85th Texas Legislature - featuring your correspondent and Texas Defender Service Executive Director Amanda Marzullo. Find a transcript of our conversation below the jump.

Court trends advise tempered enthusiasm for HB 34 eyewitness ID reforms

Does this sound like a suggestive photo array to put before a witness?

A witness described being robbed at gunpoint by a “[b]lack male, around 6-foot tall, 160 to 170 pounds, wearing a red hoodie and dark pants.” A suspect is arrested who wasn't wearing a red hoodie but had one in his bag. In the photo array shown to the witness, the suspect was wearing a red hoodie but the others were not. The witness picked out the suspect, but on cross-examination admitted her "best memory" of the defendant was of his red hoodie. On re-direct, the prosecutor gets her to say she clearly remembered his face as well and that was the basis of her identification.

This is the kind of suggestive lineup that, when your correspondent was Policy Director for the Innocence Project of Texas, we found to underlie false convictions of exoneree after exoneree. But the Fourteenth Court of Appeals found that lineup was permissible in Fisher v. State. And though IANAL, Grits considers it perfectly in line with Texas Court of Criminal Appeals jurisprudence on the topic. They've created a five pronged balancing test and flagrantly ignoring one of the prongs is generally outweighed by even minimal compliance with the others.

That's what makes Grits pessimistic, sad to say, that changes to the law passed this session regarding eyewitness identification standards will keep questionable IDs out of the courtroom. As Elizabeth Loftus, a pioneer of experimental research on eyewitness identification, wrote in her classic text, Eyewitness Testimony (p. 9): "Juries have been known to accept eyewitness testimony pointing to guilt even when it is far outweighed by evidence of innocence." That's been true of several prominent Texas exonerations in which jurors believed erroneous eyewitness testimony over valid alibi testimony. So keeping flawed and biased eyewitness testimony out of earshot of jurors is the only real way to prevent the error.

Under HB 34, the model policy recommended to Texas law enforcement agencies would require that photos in a lineup array:

(i) are consistent in appearance with the description of the alleged perpetrator that was provided by a witness; and
(ii) do not make the suspect noticeably stand out;

But that's only a recommended policy, they're not obligated to adopt it. And as the 14th Court of Appeals pointed out, "the clear weight of Texas authority" leans toward allowing identifications into evidence, even when lineups exhibit those obvious flaws. In Fisher, the defendant was the only person in the lineup wearing a red hoodie similar to the one described by the witness in a statement. Indeed, since he wasn't wearing the hoodie when he was arrested, police appear to have had him put it on for purposes of taking the photo. So making the subject stand out because of the hoodie may even have been intentional. No matter. Though IANAL, Grits sees nothing in HB 34 which would cause Texas courts to begin excluding testimony based on these sorts of flawed ID practices.

The Texas District and County Attorney Association's brief commentary on the case demonstrates how easy it would be to avoid these problems:

Good procedures at your jail can ensure that the photos used in lineups aren’t subject to attack this way. The modern trend seems to be the use of a towel or smock to ensure that witnesses don’t fixate on the shirt worn by the suspect.

Even so, the Court of Criminal Appeals has balked at excluding testimony based on suggestive IDs, despite evidence that they underlie so many false convictions. And the Legislature has refused to put teeth into eyewitness ID reforms by applying Texas' statutory exclusionary rule when proper procedures aren't followed. So Texas courts go forward knowing that some percentage of erroneous IDs and false convictions could be prevented if the Legislature or the CCA would just put their foot down.

Making it all advisory, suggested policies, etc., without having the exclusionary rule apply or even requiring jury instructions when suggestive lineups are allowed into evidence means these reforms don't have a lot of teeth. One supposes they contribute to a general professionalizing trend in law enforcement, but they explicitly don't require it. And judging from the workaday ruling in Fisher v. State, the courts aren't about to demand it on their own.