Murder down in big Texas cities in 2017, violent crime up in some

As the year closes out, the Brennan Center projected murder and violent crime rates for 2017 based on reporting from the nation's 30 largest cities, including six in Texas. They found that, in aggregate, both had declined from 2016 levels. Looking closer at Texas' data, complicated the story. Here are the changes in murder rates for the Texas cities in the survey:

Houston: -20.5%
San Antonio: -13.5%
Dallas: -1.7%
Austin: -27%
Fort Worth: +0.1%
El Paso: +29.4%

The increase in El Paso's murder rate was from 2.9 to 3.8 per 100,000 residents and represented an increase of 6 murders over the 2016 total.

Murders, though, are rare events occurring in relatively small numbers, which is why it's never ideal to look at one or two years in isolation. Overall, murder rates peaked in 1991 and have declined steadily ever since, with a couple of one or two year upward hiccups, as occurred in 2015 and 2016. But 2017 renewed that downward trend with what Brennan projects will be the second lowest rate for murders overall since the 1990s.

Other violent crime rates, however, rose slightly in Texas' largest cities, despite a slight overall national decline. For the same cities, here are Brennan's projections for year-over-year changes in violent-crime rates from 2016 to 2017:

Houston: +8.8%
San Antonio: +4%
Dallas: +4/8%
Austin: -7.5%
Fort Worth: +5%
El Paso: -7.8%

Now, these are single-digit increases in four of six cities following two decades of decline, so take them with a grain of salt, but it does buck the national trend, which saw violent crime decline 0.6% overall.

When you look at the data city-by-city, however, that average masks wide variation. For example, though declines in Austin and El Paso look quite good, some large cities posted even larger reductions, including: Columbus, Ohio (-12.4%), Indianapolis (-17.9%) and Washington, D.C. (-27.5%). And some quite large cities like New York (-7.4%), Detroit (-9.6%), and Boston (-9.7%) witnessed crime declines equal to or greater than any Texas jurisdiction.

What to make of this jumble? Grits honestly can't say. In most cases, imputing causation to the yearly vicissitudes of crime data (much less any partisan implications), IMO amounts to a fool's errand. I don't believe the new Houston Police Chief, Art Acevedo, can take credit for the decline in murders in his town, for example, nor do I believe he is responsible for the increase in violent crime on his watch. Crime rates measure societal trends which are bigger than the interests or actions of the government, including the police.

In fact, about the only thing you can tell from anyone's interpretation of short-term crime data at this historical moment are the hopes, aspirations, and interests of the interpreter. Crime rates have been dropping for a long time, but nobody knows whether or not we've hit the bottom. Are increases in violent crime rates in those four cities a blip, or the beginning of a longer-term bounce that will sustain over multiple years? No one but a demagogue can do aught but guess, and anybody who does so without offering lots of caveats is most certainly promoting an agenda.

More one-sided MSM reporting on Austin PD retirements

Grits had earlier cited reporting by local journalists over projected retirements by Austin police officers in the wake of the city council rejecting their police-union contract as an example of the local press acting as a mouthpiece for proponents of the contract. The spin before the contract vote was that up to 300 officers could retire if the council didn't approve it, a number Chief Brian Manley amended to up-to-160 on the night of the city-council vote, after touting the higher number for weeks. 

Now, the real numbers are out and KXAN-TV has published the most misleading report yet, again without letting contract critics correct the spin. It turns out, only 33 officers are retiring this month before the new contract terms take effect, or about 5% of the highest, earlier estimates being touted in headlines and TV news stories. Reported KXAN in their lede:

The number of Austin police officers leaving the department spiked this month, nearly doubling the year’s total up to this point. 

At least 33 city police lieutenants, sergeants, detectives, corporals and officers have left the Austin Police Department this month in the wake of City Council’s decision to reject a new union contract two weeks ago. In the first 11 months of the year combined, 43 officers left the department.

So 76 officers will  retire this year, including perhaps a couple of dozen extra retiring at the end of the year because of the rejected contract. How should we judge whether this is significant? From Grits' earlier post on the topic:

So, since we can't expect local reporters to do it, let's go ahead and answer the question, "Is 25-50 retirements significant?" It turns out, according to the annual report from the Austin police officer retirement system (p. 133), 56 officers retired in 2016, and 71 retired in 2015. So even minimalist reporting, checking the most basic facts about the topic in easily accessible public sources, would show that these numbers of retirements aren't really a big deal at all.

From a statistical perspective, this is entirely within normal range, with just five more retirements than in 2015. Yawn!!

Yet at KXAN, this merits the headline, "APD sees big spike in retirements after council rejects new contract"! This, to me, seems almost like intentional bias, promoting sky-is-falling arguments from one side of a public debate while ignoring both data from public sources and credible alternative voices. Could they really be this bad accidentally? I guess it's possible, but ...

Interview: Peter Neufeld, co-founder of the national Innocence Project, on prospects for state and national forensic-science reform

In the December episode of the Reasonably Suspicious podcast, we published an excerpt from an interview Grits conducted with national Innocence Project co-founder Peter Neufeld. We mainly discussed forensic-science topics including the abolition of the national forensic science commission, of which he was a member, and DNA mixture controversies. You can listen to the full interview here.


Find a transcript of our conversation below the jump.

In defense of using risk assessments at bail hearings

Echoing sentiments your correspondent expressed in a segment our November Reasonably Suspicious podcast and amplifying them with additional research, three statisticians recently made the case in the New York Times that, despite allegations that some algorithms promote racially discriminatory outcomes, they remain "powerful tools for combating the capricious and biased nature of human decisions." Here's a notable excerpt:

Bail decisions have traditionally been made by judges relying on intuition and personal preference, in a hasty process that often lasts just a few minutes. In New York City, the strictest judges are more than twice as likely to demand bail as the most lenient ones. 

To combat such arbitrariness, judges in some cities now receive algorithmically generated scores that rate a defendant’s risk of skipping trial or committing a violent crime if released. Judges are free to exercise discretion, but algorithms bring a measure of consistency and evenhandedness to the process. 

The use of these algorithms often yields immediate and tangible benefits: Jail populations, for example, can decline without adversely affecting public safety. 

In one recent experiment, agencies in Virginia were randomly selected to use an algorithm that rated both defendants’ likelihood of skipping trial and their likelihood of being arrested if released. Nearly twice as many defendants were released, and there was no increase in pretrial crime. 

New Jersey similarly reformed its bail system this year, adopting algorithmic tools that contributed to a 16 percent drop in its pretrial jail population, again with no increase in crime.

Reacting to a risk-assessment algorithm used by the probation department in Broward County which was criticized in a widely cited ProPublica article, the authors insist that:

It is not biased algorithms but broader societal inequalities that drive the troubling racial differences we see in Broward County and throughout the country. It is misleading and counterproductive to blame the algorithm for uncovering real statistical patterns. Ignoring these patterns would not resolve the underlying disparities.

On our podcast, Amanda Marzullo and I concluded that the addition of a right to counsel for indigent defendants at bail hearings could add an additional layer of protection and a means to make an individualized case for specific defendants whose situation may be more sympathetic then their algorithmic scores. So not just risk-assessments, but risk-assessments-plus. The authors similarly conclude algorithms are only one part of a broader puzzle: they "are not a panacea for past and present discrimination. Nor are they a substitute for sound policy, which demands inherently human, not algorithmic, choices."

Hypothesizing causes of Dallas County Jail population decline

The Dallas County Jail has dipped to its lowest population in recent memory and local officials can't agree why. Admittedly, it's hard to pin down a cause, though Grits could also make the case that the total should be even lower. See Dallas Morning News coverage from Naomi Martin.

The News placed some of the blame on declining numbers of arrests by officers: "Arrests by Dallas police are down. In 2017, Dallas police made roughly 4,200 arrests per month on average, city records indicate. In 2010, when staffing levels peaked, the department made 6,343 arrests per month."

However, crime is also down from 2010, so it's possible there are fewer arrests because there is less crime.

Plus, the number of cases processed didn't decline with the number of arrests, particularly felony cases which account for most pretrial incarceration. From the Office of Court Administration (whose data only goes through 2016), here are the recent total felony cases added to Dallas District Courts by fiscal year:

2012: 34,779
2013: 35,015
2014: 35,880
2015: 38,614
2016: 36,688

By contrast, there was greater fluctuation over that period in the number of indigent felony defendants appointed a lawyer in Dallas (see OCA annual statistical supplements, criminal case activity by county for district courts):

2012: 25,182
2013: 37,072
2014: 40,446
2015: 25,370
2016: 18,474

Grits doesn't completely understand what's going on there - either why caseloads aren't more related to arrests (though I have some hypotheses), or why the number of appointed counsel fluctuates so much, or for that matter why it dipped so low in 2016. And I don't know whether any of these things relate directly to recent jail population declines.

County officials took credit for the reduction, and it seems likely the programs they're touting had some effect:

Dallas County officials took a victory lap claiming credit for the reduction. Since 2012, the county has made lowering the jail population a top priority to cut costs, for both the county and for people arrested on minor charges. They say they have added diversion programs, streamlined booking and court processes, updated software and increased the use of electronic ankle monitors.

Looking at jail population reports from December 2012 and December 2017, a few things stand out. Overall, the inmate population at the Dallas County Jail was 17 percent lower in 2017 than in 2012.

The category of jail inmate with the biggest numerical reduction - felony defendants detained pretrial - represented a modest statistical decline of just 17%. Much less numerous state-jail-felony inmates being held pretrial declined by 44%. And also less-numerous parole violators being held prior to a hearing declined by 57% over this period.

So if felony court caseloads stayed about the same but felony pretrial defendants are the biggest source of reduction, that may speak to Dallas judges letting more people have personal bonds or low bails rather than fewer arrests being the cause, or to the streamlining efforts touted by the county. Indeed, since the last couple of  years coincided with a reduction in defendants receiving appointed counsel in Dallas, that implies the judges have played an even more important role, because the defendants are less likely to be represented.

So for Grits' money, this probably represents a technocratic success - intentionally streamlining systems and doing more with less - than it does some macro-level change. The biggest part of the reductions in the police force in Dallas took place before 2017, so any resulting arrest decline would have shown up gradually over time in reduced felony caseloads, not all at once as is being suggested.

Brandi Grissom Interview: TJJD/Gainesville sex abuse scandal

In the December episode of the Reasonably Suspicious podcast, we included an excerpt from an interview by Grits with Brandi Grissom-Swicegood, who just left her post as Dallas Morning News Austin bureau chief to pursue a second career as a professional triathlete. Brandi's final story for the News focused on the emerging sex-assault scandal at the Texas Juvenile Justice Department's Gainesville State School (see prior Grits coverage).

Find a transcript of our full conversation after the jump.

'A Very Carpenter Christmas'

From the intro to the latest Reasonably Suspicious podcast, apropos of Christmas Eve, please enjoy 'A Very Carpenter Christmas,' a bit of seasonal verse in honor of US v. Carpenter - the case pending before the US Supreme Court which will decide whether the government must secure a search warrant under the Fourth Amendment in order to access personal location tracking data on individuals from their cell-phone service providers:

'Twas the night before Christmas and all through the home, 

The smartphones pinged cell towers, ne'er did they roam. 

Their location was fixed there all through the night, 

Could be proven in court with no warrant in sight. 

Then what to my wondering eyes did appear, 

But Chief Justice Roberts like a red-nosed reindeer,

Leading the way for SCOTUS to hone 

A warrant requirement for tracking your phone. 

On Roberts, on Gorsuch, on Sotomayor. 

Tracking us isn't what phones are for. 

On Thomas, on Ginsburg, on Breyer, on Kagan. 

Please give Fourth Amendment fans something to cheer again. 

And clearly explain, before it goes out of sight, 

Why not being tracked by our phones is a right.

Or, here's an audio excerpt from the podcast with your correspondent reading this sure-to-be-a-classic selection:


Merry Christmas, y'all.

Christmas and the Surveillance State: December Reasonably Suspicious podcast

Check out the December edition of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice policy and politics. Two great interviews this month - one with reporter Brandi Grissom Swicegood about the alleged abuse and turmoil at the Gainesville State School, and another with Peter Neufeld, co-founder of the national Innocence Project, regarding forensic-science reform. You can listen to the latest episode here, or subscribe on iTunes, Google Play, YouTube, or SoundCloud.


If you haven't subscribed yet, take a moment to do so now to make sure you won't miss an episode. Topics this month include:

Top Stories
US v. Carpenter: SCOTUS appears likely to require a warrant for cell-phone location data.

Interview

Brandi Grissom, discussing the staff-on-youth sex scandal at the Gainesville State School.

Home Court Advantage

Evaluating a sharply split decision from the Texas Court of Criminal Appeals upholding a first-degree felony drug conviction in which a police officer stole the product and laced sheetrock with less than a gram of cocaine to frame the defendant. (See prior Grits coverage.)

Interview

Peter Neufeld of the national Innocence Project, discussing forensic science reform.

Errors and Updates

• Forensic hypnosis
• Austin City Council rejected police union contract
• DNA mixture evidence

The Last Hurrah

• TDCJ prison understaffing and staff safety
• Death penalty use declining: A first for Harris County in 40 years
• Dallas pilot program de-escalates mental-health calls by sending medical staff instead of cops

Find a full transcript of the podcast below the jump.

Executing non-killers, imagining life without plea bargaining, no oversight for forensic hypnosis, and other stories

Here's a brief, browser-tab clearing roundup of items about which I haven't had time to blog, but of which Grits readers should be aware:

Forensic commission can't address 'forensic hypnosis'
First, updating an earlier Grits report, I communicated with Lynn Garcia, General Counsel for the Texas Forensic Science Commission, who informs me that forensic hypnosis does not fall under their jurisdiction, even as a general area they're authorized to study, because it does not involve "physical evidence," which is defined in the statute as something tangible. She said they've received complaints about the practice in the past, including one recently, and agrees it's problematic, but doesn't believe it falls within their jurisdiction. While I understand her legal interpretation, that leads to an unfortunate situation where government-sanctioned junk science (the Texas Commission on Law Enforcement gives out certifications in forensic hypnosis) cannot be evaluated by the state Forensic Science Commission. That should change in 2019.

Maybe they'll listen if they Rangers tell 'em
Governor Abbott has asked the Texas Rangers to investigate sexual abuse at the Gainesville State School. But we've had an Ombudsman complaining about these problems and recommending solutions for years, and for the most part those recommendations have been ignored. Most of the details in the disturbing press reports out of Gainesville came from Debbie Unruh, the TJJD independent ombudsman, and had been included in her prior reports. Why would we imagine state leaders will listen to the Texas Rangers when they haven't implemented the recommendations from Unruh who's been sounding the alarm all this time? The state already knows the solutions here, they just haven't heretofore been willing to pay for them.

Did TDCJ understaffing allow rape of prison teacher?
A teacher at a TDCJ prison blames chronic understaffing for the circumstances that led to her rape. Grits readers know this is a longstanding problem. The solution here is to reduce incarceration levels and close understaffed units. There just aren't enough people in some of these rural areas to consistently staff the prison units there. And the problem will be much-exacerbated at certain South and West Texas units if and when oil prices go back up.

Coverup at TDCJ?
The Texas Department of Criminal Justice allegedly shredded documents they were obligated to turn over as discovery in a federal lawsuit alleging the summer heat in un-air conditioned prisons constitutes cruel and unusual punishment. The warden who approved the shredding allegedly already knew about the litigation. Hard to interpret it otherwise: This smacks of a coverup.

Executing non-killers
Something about executing a person for a murder they didn't themselves commit feels inherently unjust. Even the prosecutor from Jeff Wood's capital conviction, who had 13 months experience as an attorney at the time she was designated shot-caller in the case, has asked the Governor to commute his sentence. Wood's example reinforces Grits' belief that the law-of-parties doctrine is ripe for revision: the concept stems from British common law, but Parliament abolished it in 1957, followed soon thereafter by all of Europe, India, and in 1990, Canada. This is a holdover from a less evolved time.

Paying for public defenders would reduce incarceration costs

Long-time Grits readers are aware that defendants represented by public defenders have better outcomes than those with appointed attorneys. We've seen this both in national data and Texas examples. But a new national analysis suggests that public defenders do such a better job that using them reduces incarceration costs: Using "public defenders reduce[s] the probability of any prison sentence by 22%, as well as the length of prison by 10%."

When your 'tiny house' means a tiny privacy footprint
Here's an unintended consequence to the "tiny house" movement: If your tiny house is on a trailer, your Fourth Amendment rights are likely diminished and the automobile exception will apply to searches of your residence, according to academic from Texas State.

Life without plea bargaining?
For the reading pile: India's court system doesn't do plea bargains. They've tried to implement them in the last decade and it's been a flop. I want to read this new academic article to learn more about the situation.

Journalists failing to call out official lies in Austin police contract debate

Local, mainstream media coverage of the Austin police union contract - which was rejected Wednesday night after a dramatic, 8-hour special-called city-council meeting - has been disturbingly bad. People whom I've considered good reporters on other topics have written pablum-filled junk on this one. For the most part, journalists appeared to go out of their way to avoid reporting factual information when it was provided by advocates or movement leaders, and instead chose to report spin and outright falsehoods from the police union and (to a slightly lesser extent) police department management.

With the exception of Michael Barajas at the Texas Observer, most reporters leading up to the council vote portrayed opposition to the contract as coming from only a handful of critics, often suggesting Austin Justice Coalition's Chas Moore was the sole, vocal opponent.

The Austin Statesman at one point estimated that "several" activists opposed the contract, and after the council vote, a local TV station said "dozens of community members" opposed it. In reality 20 different organizations signed on against it - including Travis County Democratic Party precinct chairs voting unanimously to recommend rejecting it - and more than 220 people signed up to speak against the contract Wednesday night, with 54 police officers and their family members signed up for it, the Mayor announced at end of the meeting. (The total actually speaking was lower on both sides in the end because many people donated their time to others or had to leave before their name was called.)

Beyond simply downplaying the size of the movement, a lot of false information has been  propagated because reporters simply accept official sources uncritically and do not seek out alternative sources or views. Sometimes these official sources lie, but the reporters aren't performing even the most basic legwork to fact check those falsehoods.

To take the most immediate example, Chief Brian Manley and the police union have been saying - and the Statesman repeated the line as the top news about the contract - that up to 300 veteran officers could retire if the contract was rejected. These were official falsehoods being promoted as a scare tactic.

And now that the contract has been rejected? Reported KXAN-TV, police union president Ken Casaday said, “We’re expecting somewhere between 25 and 50 to leave.” So between 1/12 and 1/6 of the number he was estimating a week before. While KXAN reported the new, much smaller estimate, the headline did not not say, "Far fewer officers will retire than expected." Instead, they doubled down on the original falsehood with the scary headline, "Some APD officers already putting in for retirement after contract was stalled." Not one media outlet has called out police management or union officials on their earlier misrepresentations. Instead, they're collaborating in a spin campaign.

So, since we can't expect local reporters to do it, let's go ahead and answer the question, "Is 25-50 retirements significant?" It turns out, according to the annual report from the Austin police officer retirement system (p. 133), 56 officers retired in 2016, and 71 retired in 2015. So even minimalist reporting, checking the most basic facts about the topic in easily accessible public sources, would show that these numbers of retirements aren't really a big deal at all. Austin cops with enough years in to make them eligible for retirement make upwards of $120K per year, including overtime - among the highest paid in the nation. There aren't other jobs, anywhere, where they can make that much, so most will stay put.

Reporters should aspire to be more than stenographers. These are the sorts of failures by the journalism profession which, on the macro level, brought us Donald Trump: Quoting public figures without fact checking their comments, refusing to report factual information because it doesn't come from a preferred source (usually the government), and focusing on personalities instead of issues.

Austin journalists who've covered the police contract for the most part should be embarrassed. They never provided the public with a meaningful assessment of the issues at stake, despite ample documentation, numerous community meetings, public forums and other opportunities to cover them. A massive, city-wide debate has taken place on this topic over the last six months, and it has occurred almost entirely without the MSM playing any meaningful role.

You could read everything written in the MSM about the contract before Wednesday's vote and have at most a minimalist understanding of the issues contract critics raised. Only one Statesman article, in October, even listed the eight accountability measures demanded by AJC and its allies. From that story, here's the most detailed MSM discussion Austinites ever got of the policy questions that ultimately caused the police-union contract to be shot down:

The resolution suggested, as Austin activists have for months, eight different reforms to the police contract: reforming the department’s 180-day rule, which limits the amount of time the police chief has to discipline officers; eliminating automatically downgraded suspensions; giving subpoena power to current oversight bodies; allowing misconduct to be considered equitably in promotions; allowing citizens to make complaints online or over the phone; allow the police monitor to initiate investigations even without a citizen complaint; stop permanently sealing records related to police misconduct; and releasing records without removing content.

And I should give those reporters credit: No one else except Barajas ever even listed them. However, each of these amounts to a complex debate into which the general public cannot meaningfully enter without much more detail and context than what's being provided. No media outlet ever discussed them at length, much less linked them thematically to the various cases which inspired the recommendations in the first place. Police union positions, however, were quoted over and over again.

As a result, Statesman readers, and consumers of all other local MSM, were essentially shut out of the real conversation. Instead, the most important debates took place online, in hundreds of one-on-one conversations behind the scenes, and in numerous public forums to which our journalist friends had access, but of which they chose not to avail themselves. Most reporters took the lazy way out, filling their stories with quotes from the police union and the city and using their authority to marginalize critics.

At times, it almost seemed intentional. More than a few of these reporters have shown they're better than that in other settings. In this instance, though, the local Austin press corps chose to serve as shills and propagandists for the powers-that-be, missing the story about an eruption of public discontent over a major public policy issue until after the fact. It was a sad and disappointing display.

Uncharted territory: Rejected police union contract leaves many open questions

The Austin City Council last night unanimously voted against accepting a police-union contract - one that took almost 8 months to negotiate and was approved by 85% of union members - after more than 150 reform supporters, including your correspondent, spoke at a special called meeting to oppose the current version and demand accountability reforms. (More than 220 people signed up to speak against the contract, but the hearing lasted seven hours, late into the evening, and many people had to go home.) See coverage from:

• Austin Statesman
• Austin Chronicle
• Texas Observer
• KVUE-TV
• Fox7-News

These accounts entirely underestimate the import of this vote. Austin's City Council hasn't voted against a union-ratified police contract, ever. Nor have any other American city rejected a union contract on accountability grounds, as far as I can tell. (In Portland, when civil rights advocates protested their contract, they were pepper sprayed and sent on their way.)

Crowd who stayed for the vote at end of a 7-hour meeting

The vote creates, for the first time in two decades, an opportunity to improve police oversight in Austin, which was ineffective at best and a public embarrassment at worst. None of the local coverage has effectively plumbed the depths of the issues at stake, typically portraying one young activist - the Austin Justice Coalition's Chas Moore - as some lone-wolf critic instead of the voice of a massive, city-wide accountability movement.

Local advocates led by the Austin Justice Coalition (conflict alert: my wife Kathy Mitchell was among the campaign's principle organizers) attended every negotiation session, researched the issues thoroughly before engaging, organized their asses off in dozens of various forums, meetings, and events, and arrived at the denouement last night loaded for bear. 

The Austin Police Association and city management presented a united front in defense of the contract, but struggled to defend the pricetag -- more than $80 million over five years to give raises and bonuses to a police force that's already the highest paid in the state. A core group of council members clearly were disturbed by the lack of accountability measures demanded by the community. (AJC had proposed eight measures; one was fully implemented, one partially, the others were ignored.) The entire council was unhappy that the exorbitant cost of the contract would squeeze out spending in all other areas of the budget for the next five years.

That mix of advocates' frustration with police abuse, coupled with Council's frustration at having so little money to keep the pools open or even add new police officers, tipped the vote away from the deal. 

The union had said that if the council rejected the contract they would not come back to the negotiating table for a year. But there's too much money at stake so I don't see that happening. Their members would lose a lot of goodies, including sweet overtime deals for court appearances. 

The council's motion last night gave city negotiators unto March 22, 2018 to come back with an amended agreement that was cheaper and included more accountability reforms. And with that unanimous vote, the city, the union, and police reformers move into uncharted territory.

A brief primer on forensic hypnosis

In the November Reasonably Suspicious podcast, my colleague Amanda Marzullo and I discussed a capital case out of Dallas - Ex Parte Flores - in which the Dallas PD used hypnosis on the primary witness, who ultimately switched her story. She at first said a long-haired white man was the perpetrator before identifying a short-haired Hispanic man (Mr. Flores) at trial.

On the podcast, we marveled that DPD had access to an on-staff hypnotist, wondering whether DPD might also consult Tarot card experts or palm readers? But Grits underestimated the level of official status that "forensic hypnosis" has achieved in Texas, by quite a bit! I'm putting these links up mostly for my own purposes, but thought Grits readers may also be interested, so here you go:

For starters, to be clear, most states (28) do not allow hypnosis-influenced testimony to be admitted into evidence at all. Of the states that do, Texas has over the years had one of the more robust programs. The Texas Court of Criminal Appeals approved the use of hypnosis in a case called Zani v. State from 1988, the year after  the Texas Legislature via SB 992 ordered what was then the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) to create an "Investigative Hypnosis certificate." (See a 2015 synopsis of their 50-hour training course, and here's the relevant section of the Occupations Code.)

The CCA reaffirmed the use of hypnotically induced testimony in a 2004 case, State v. Medrano.

The best journalism on this topic that your correspondent has seen came from Andy East at Reporting Texas in December 2014, in a story I'd missed when it came out. According to Mr. East:

Texas and 21 other states allow court testimony by witnesses who previously were hypnotized to enhance their memories, according to a study by Steven Lynn, a professor of psychology at Binghamton University in New York. The Texas Rangers have used hypnosis 66 times since 2009, according to the state Department of Public Safety. Most law enforcement agencies in Texas don’t keep statistics on hypnosis.

Further:

Investigative hypnotists in Texas must be certified by the Texas Commission on Law Enforcement. That requires taking a 50-hour course and passing an exam. Since licensing was mandated in 1987, commission records show that 858 law enforcement officers have been certified . Four officers have been certified in the past two years. In October 2013, the commission began requiring licensed investigative hypnotists to take a refresher course every two years.

According to an article by a former DPS trooper and prominent forensic hypnotist (touting the "Texas model" and outlining a "Road Map to Admissibility" for hypnotically enhanced witness testimony), some 80 police officers participated in the first TCLEOSE training once the official certification was created.

There is actually a Texas Association of Investigative Hypnosis, and regrettably we just missed their annual conference! That would have been a hoot. Here's a website of a prominent practitioner and former DPS trooper.

American Public Media in 2016 took on the story from a national perspective. They warned that:

Especially if done poorly, the process - basically a means of trying to induce a more focused state of mind — can plant memories or skew existing memories. It can also make witnesses or victims more certain of what they saw, even if the recollections turn out to be false. Today, hypnosis is a rare feature in police work and even rarer in the courtroom, partly because so many courts have ruled "hypnotically induced" testimony inadmissible. The process is viewed as roughly on par with another quasi-scientific investigative tool, the polygraph test.

They noted that, "Minnesota was one of the first to restrict such testimony when the state Supreme Court ruled in State v. Mack, in 1980, to bar testimony recalled for the first time under hypnosis." Here's a Candadian case from 2007 declaring post-hypnosis witness identifications inadmissible.

Over the years, scientific support for the technique has eroded significantly. These days, a 2016 academic analysis concluded, "Scientific research ... suggests, fairly overwhelmingly, that hypnosis does not reliably increase the accuracy of eyewitness recall and recognition; rather, the research shows that when effects do occur, hypnosis can produce an increase in false, distorted, or manufactured memories."

Further, said the same source: "it is not only the distortion of memory which is at issue, but also the sincerity with which people believe their distorted memories to be accurate. Because hypnotically recovered memories are remembered in such detail and with such emotion, subjects often develop false confidence in it."

According to this academic analysis (FN 35), there are at least five DNA exonerees who were convicted after information about hypnosis-induced testimony was concealed from their juries!

A DOJ manual for US Attorneys informs practitioners, "The information obtained from a person while in a hypnotic trance cannot be assumed to be accurate."

Memory expert Elizabeth Loftus has shown that hypnosis can be used to implant memories of things that never occurred.

Most academic papers I've found on forensic hypnosis are behind paywalls. The abstract to this 2015 academic paper suggests that hypnosis poses more risks of error than other memory recall methods. Another academic paper suggested more errors occur from hypnosis when the contents of memories are very emotional.

As far as Grits can tell, this is junk science at its worst. In Zani, ironically, the CCA already understood that proponent's claims had been seriously challenged: The majority opinion observed that:

Proponents of the use of hypnosis to restore a crime victim's memory to facilitate his trial testimony, most notable of whom is Dr. Martin Reiser, a psychologist and forensic hypnotist with the Los Angeles Police Department, advocate a "videotape recorder" theory of human memory. By this theory the human mind is thought to receive and store in the subconscious every bit of data taken in by the senses. Hypnosis is regarded as a legitimate vehicle for tapping the subconscious to retrieve data recorded therein which has proven to be inaccessible to the subject's conscious memory. "The assumption, however, that a process analogous to a multichannel videotape recorder inside the head records all sensory impressions and stores them in their pristine form indefinitely is not consistent with research findings or with current theories of memory." 

Today, thanks to research with fMRIs and other modern neuroscience advancements, we know conclusively that the "videotape recorder" theory is hoakum. It can't even be said to be a disputed question anymore. And that's the main basis upon which proponents rested their arguments for using hypnosis on witnesses.

It's hard to understand how "forensic hypnosis" is still a thing in 2017. Further evidence, if any were needed, that judges in general make rotten forensic gatekeepers. This is just embarrassing.

TX DPS diverting focus to immigration enforcement, and other stories

Grits has been neglecting this channel a bit - family obligations have kept me as busy as a one-legged man in an ass kicking contest. But here are a few odds and ends that merit readers' attention while mine is focused elsewhere:

DPS now engaging in immigration enforcement
Texas DPS is calling the Border Patrol to the scene of traffic stops to pick up suspected illegal immigrants, reported The Intercept, which tracked what happened to the families in several of these cases. This amounts to explicitly diverting state-level law enforcement resources to fulfill a federal immigration function, reducing resources available to fight crime.

Dallas pilots non-cop-led teams on mental-health calls
Dallas is launching a pilot program to send a team led by medical personnel instead of  police officers to most mental health calls. "Under the pilot program, three people would be dispatched to each mental health call: a paramedic, an officer and a behavioral health professional."

Suspending drivers licenses for debt a policy flop
Texas is one of 43 states that suspend drivers licenses for unpaid court debts, reported the Marshall Project. Your correspondent is especially excited to see how the new policy in California rolls out, where the CA Legislature ended license-suspensions for nonpayment earlier this year. IMO Texas should move in that direction.

MSM belatedly notices bipartisan #cjreform in Texas
The Houston Chronicle has discovered that the Right on Crime campaign at the Texas Public Policy Foundation exists, but thinks they've been "quiet" until now. Happy to see RoC getting in-state attention. But they've hardly been quiet, even if the Texas MSM hasn't been paying attention.

Law-of-parties debate heating up
Debates over the "law of parties" are heating up as a result of the Jeff-Wood capital-murder case, with the prosecutor from the case calling for his sentence to be commuted, reported the Texas Tribune. The law-of-parties doctrine is ripe for revision: the concept stems from British common law, but Parliament abolished it in 1957, followed soon thereafter by all of Europe, India, and in 1990, Canada. American law is an outlier on this one.

Jury selection critiques
Houston law prof and Grits contributing writer Sandra Guerra Thompson has posted an older article on SSRN critiquing jury selection procedures in the context of Miller El v. Texas. Meanwhile, Brittany Deitch of Harvard Law has a new article out critiquing jury selection procedures arguing that "that jury selection procedures undermine the defendant-protection rationale for the Sixth Amendment right to a jury trial. Because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power."

'Sources of Contamination in Lineup Identifications'
In our November Reasonably Suspicious podcast, Amanda Marzullo and I discussed a capital case out of Dallas in which an eyewitness was subjected to hypnosis, after which she identified a short-haired Latino defendant as the perpetrator of a crime when she'd originally said a long-haired white man did it. Grits couldn't help but think of that case when reading this short article on "Sources of Contamination in Lineup Identifications." It was almost a textbook violation of best practices designed to prevent false identifications.

Cops' views on bodycams
What do police officers think about when they should and shouldn't be required to activate their bodycams? A new academic paper asked a bunch of them and reported the results.

Changes to Crime Victimization Survey create headaches
The feds have so radically altered the national Crime Victimization Survey that it's no longer comparable to data from the older surveys, which poses a major dilemma for researchers and criminologists who rely on this instrument. Unlike changes to the Uniform Crime Reports, though, where 70 percent of the data tables were simply eliminated by the Trump Administration, these changes have been in the works for a while and are supposed to provide better data in the long term. But in the near term, the inability to compare the results to past years surveys is a problem.

CCA: Parole board cannot be made to follow statutes

What a difference a year makes. In 2016, the Texas Court of Criminal Appeals unanimously ruled in Ex Parte Antonio Sepeda that habeas corpus writs were the "proper remedy" to compel the Texas Board of Pardons and Parole to comply with state statutes. Pero, no mas.

Now, five members of a sharply split court have decided to "disavow" that decision in Ex Parte Morris Johnson II, leaving no viable enforcement mechanism available when the parole board ignores its statutory duties.

Judge Elsa Alcala in a dissent summed up the import of this change: "Can the parole board disregard applicable statutes without any judicial oversight?," she asked rhetorically in the opening lines to her opinion before answering her own question: "After today's majority opinion, the answer to this question is 'Yes.'"

Judges Walker and Richardson filed a separate dissent suggesting a writ of mandamus was the right legal vehicle rather than a habeas corpus writ. That opinion details the argument that the Board has a clear "ministerial duty" to consider certain parole applications because of mandatory statutory procedure requirements. (Mandamus/habeas would not be appropriate, all agreed, if exercised in an area where the board has independent discretion over a decision, but four judges believed they could be obligated to comply with statutory duties.) Judge Newell dissented without giving a reason.

The majority opinion represented the views of the three members of the Government-Always-Wins faction, plus Judges Keel and Yeary to get to five. Two GAW members, Keasler and Hervey, offered a concurrence suggesting that the parole board could resolve the immediate issue itself without the court forcing it. They contended that the failure to consider the Mr. Johnson's parole application as envisioned by the statute fell within the board's discretion and did not implicate its "ministerial duties."

The details of the case were highly technical, involving a defendant with multiple concurrent and consecutive sentences and a parole board policy which delays when a second "consecutive" sentence starts for purposes of how long a "concurrent" sentence must run.

But the bigger question involved whether the parole board may be legally constrained by statutes in a way that's enforceable through the courts, or whether they are, in essence, above the law. For now, they remain above the law, at least as far as the state courts are concerned.

What next after TJJD's Gainesville scandal?

In the wake of recent sex-abuse allegations at the Gainesville State School, the Dallas Morning News editorial board recommended closing Texas' five remaining youth prisons. But they didn't really address what should happen with the inmates there or how the juvenile-justice system should be structured in the aftermath of youth prison closures.

For more detailed thoughts on that, check out this GFB post from several days after the story broke anticipating that recommendation and also what might lie beyond.

In that vein, yesterday, four liberal groups called for the creation of a joint House-Senate legislative committee to create a plan to close Texas' remaining youth prisons and utilizing alternatives to secure lockups including TJJD halfway houses located closer to urban areas. Grits has no problem with the policies they're suggesting but am not certain a joint-legislative committee is the way to go. For starters, that would require that Dan Patrick and Joe Straus to both assent, and presently I doubt those men could agree on what to order for breakfast. Moreover, it feels to me like it's already fairly obvious what needs to be done.

After the Texas Youth Commission sex scandals put the agency into conservatorship in 2007, the Legislature commissioned a blue-ribbon panel to recommend how to transform the system. They suggested shifting to the "Missouri model" where youth offenders are housed in smaller facilities (fewer than 48 beds) closer to urban areas where more treatment and mental health services are available. That goal has been partially achieved, but the Gainesville episode shows that youth left in those few remaining large facilities are still at risk.

All this to say, the state has a long history here and most people involved understand in broad strokes what needs to be done. State leaders just need to muster the political will, and money, to finish the job.

MORE/TEASER: This week Grits interviewed Brandi Grissom-Swicegood on the Gainesville State School scandals for the December episode of our Reasonably Suspicious podcast. We discussed similarities and differences to the TYC episode and where state leaders may go from here. As veterans of the 2007 episode, we shared the same sense of deja vu, and exasperation, that such similar problems had recurred. And we talked about how to prevent such episodes in the future instead of merely document and prosecute them after the fact. Look for an excerpt of our conversation in the main Reasonably Suspicious podcast for December, then Grits will post the full interview online soon thereafter. Brandi just left her job as Austin Bureau Chief of the Dallas Morning News to pursue a career as a professional triathlete, and this was her last story. So it was fun to get to interview her on her way out as she reflected on her career reporting on the capitol, in addition to discussing all this juvenile justice stuff. Coming soon! (And thanks for doing that, Brandi, that was a lot of fun.)

Police unions, the media, and me ... and other stories

Grits fell ill at the end of the holiday weekend, am only now really back on my feet, and find myself in a desperate need to clear my browser tabs. So, y'all get a roundup of all the stuff I don't have time to blog about right now.

Police officers indicted more often, but seldom convicted after shootings
More police officers in Texas are being charged after questionable shootings, but prosecutors who were able to convince grand juries to indict have been less successful at securing convictions at trial, reported Tasha Tsiaperas the Dallas Morning News (who has a really cool, bond-villain-type name!). In related news, Grits contributing writer Eva Ruth Moravec had a feature in the Houston Chronicle about a Freeport police officer acquitted by a Brazoria County jury for shooting his unarmed neighbor in the next apartment. It was as negligent a situation as one could imagine, so maybe civil court is still an option: The cop apparently slept with a loaded gun in his bed (and in this case, his finger on the trigger, safety off) and fired it through his headboard into the next door apartment. Attn: Texas Monthly, this is mandatory Bum Steer material.

Police unions, the media, and me
Most local media coverage of the Austin police contract has been dismissive of the push by the Austin Justice Coalition and their growing list of allies to get the city council to vote "no." This, despite opposition to the contract from hundreds of signators, more than a dozen groups, and even though, in a staunchly Democratic county, D precinct chairs unanimously voted for a resolution urging city council to kill the deal. Currently the vote is scheduled for December 14th. At the Texas Observer, Michael Barajas has a feature explaining more fully "How the expiration of Austin's police union contract could be a rare opportunity for reform." Former CLEAT mugwump and long-time police-union leader Ron DeLord, who was lead negotiator for the Austin Police Association on the contract, complained on Twitter that Barajas didn't talk to him. So I suggested DeLord do a podcast interview to air his views, and he agreed(!). I hope y'all are looking forward to that as much as I am. Mainly I want to talk to him about his books: See Grits' discussion of his latest one, and also the opening segment of our August Reasonably Suspicious podcast discussing his remarkably accurate prediction of Texas' police-pension crisis, which was a contentious legislative imbroglio this year resulting in outcomes with which no one is happy, but which brokered an uneasy, temporary truce among the parties. If the economy holds.

Evaluating police bodycams
Coupla items here: A new study found bodycams reduced use of force episodes at the Las Vegas PD while providing quality evidence that supported criminal convictions mostly of defendants, not cops. But many advocates, your correspondent included, believe the laws limiting transparency around footage reduce the accountability benefits. Supporting that claim, Nick Selby wrote on The Crime Report that, "In October of this year, the biggest-ever randomized study of body cameras showed no measurable reduction in complaints or use of force by officers in Washington, D.C." So the jury's still out on whether this will turn out to be an important accountability measure, as they were originally pitched in the hyped aftermath of the Ferguson protests.

With shortfall looming, a way to reduce DPS crime-lab volume
Plano PD is testing a device that can tell whether DNA exists on a piece of evidence before they send it to the lab instead of after. If this works as advertised, Governor Greg Abbott, his grants division, and DPS crime-lab folk should take heed. It might even be worth the Governor considering emergency grants to buy these for the biggest users of DPS DNA lab services to reduce the volume of cases. A lot of material sent has no DNA on it at all, and to screen that out up front would make a big difference on volume in a biennium when the Legislature told DPS to collect fees for part of their budget and the Governor has stopped them from doing it. That creates a shortfall unless they can find ways to reduce volume. This could be an important one.

Death penalty now mainly an LWOP plea-bargain chip
Texas will perform no more executions this year after the Court of Criminal Appeals issued a stay and halted Juan Castillo's planned trip to the death chamber. But expect life without parole sentences to keep stacking up as Christmas approaches. In 2016, according to the Texas Office of Court Administration, just three new death sentences were secured by Texas prosecutors, compared to 64 LWOP sentences. (A whopping 426 total capital cases were filed statewide last year, which was a ten percent increase from the year before, so many are called, but few are chosen.) These days, the death penalty is mostly a threat to get people to accept life without parole sentences in a plea bargain.

Harris judges sabotaging pretrial release order from feds
Harris County judges are sabotaging the pretrial release system mandated under a federal court order by refusing to release thousands of defendants who qualify, according to a report by the Texas Tribune (which doesn't use such strong language but supplies all the relevant details). Instead, the Sheriff has to release them outside of the purview of the Pretrial Services system, where they predictably have higher no-show rates. (One of the most important things pretrial services does to get them there are reminder calls and texts.) The key problem:

Defendants who are ordered for no-cost release by a judge or magistrate are entered into the county’s Pretrial Services department, which works to ensure those out on personal bonds know the date of their next court appearance and can provide additional conditions like drug testing, mental health services or GPS ankle bracelets. Those released by the sheriff aren’t monitored once they leave the jail.

On judges as gatekeepers, redux
Here's a law review article by Stephanie Damon-Moore on a question Grits has thought about a lot: "why trial judges, who have an independent obligation to screen expert testimony presented in their courts, would routinely admit evidence devoid of scientific integrity."

Beyond mass incarceration: Felony sentences rose quicker than imprisonment rates
We've established that the War on Drugs contributed more to mass incarceration than critics like John Pfaff have claimed. But now the statistician who best proved that has come out with a new analysis demonstrating even deeper, more insidious aspects to the drug war's role. Compared to new prison sentences, which themselves skyrocketed, the number of total felony sentences (including probation, deferred adjudication, etc.) went up even faster! See here, and check out the whole analysis:

Looking through the Glass Door at TJJD employee complaints

In the wake of the new Texas Juvenile Justice Department sex scandal out of the Gainesville State School, and reports by the Dallas News of absurdly high turnover rates and abuse of inmates by staff, it occurred to me to check the service "Glass Door" to see if current or former TJJD employees had ever posted there. Indeed, they had!

Glass Door is a service for people looking for jobs. It allows current and former employees to provide input on anonymously on what it's really like to work for an employer. Mostly it's used in private sector contexts, but it turned out there was state agency information, too.

The main positives about the agency were that pay and especially benefits were good for the jurisdiction. But the various negative critiques mounted up. Here's a short compilation of some of the more negative comments made by TJJD employers about their jobs:

• very dangerous environment with little to no troop support.
• we should have been paid more for the crap we had to deal with
• Unsafe environment to work in, Messy Cliques, No appreciation shown to the employees.
• Morale is the lowest in seven years.
• The stress level can often run high. The turn-over rate tends to be high so there are some issues involved with maintaining veteran, well-trained staff. These positions are not for the faint of heart or those who can be easily manipulated.
• Short staffed. Mandatory overtime that you're not paid for.
• The workplace has a negative culture and the state is constantly threatening to close down the facilities.
• Safety is at risk.
• Unsafe work environment. Management is clueless and uncaring. Employees are treated as pawns to be used for coverage. Poor attendance by coworkers is not addressed and employees often have to work 12 hour to 16 hour shifts as you cant leave unless management can find a replacement for you at the end of your shift. 
• This is the most racist place I have ever seen. It is full of hateful and negative teachers and administrators , which they likely keep around. Most if them call the kids trash and have no real desire to help them. Your treatment is based on how well you suck up or sleep around.
• Expectations are high and those that genuinely care for the youth can find themselves doing the work of two or three. 

One employee offers this disgruntled assessment:

Pros
In this company there aren't any pros, unless you are in with the "in" crowd, the morale at the company is very low and that's from management down. As a clerk, there is no room for improvement, no training. There are basically no pros for working for this agency. 

Cons
A lot of work for one person, no career ladder, no room for improvement, self taught.

Ouch!

See a related Grits post: "New TJJD sex-abuse allegations recall similar but different '07 scandals."

Keep expectations realistic vis a vis 'reformer' DAs

In the world of criminal-justice reform, because there are so many different participants and levels of government involved in how the system operates, reformers must keep available a full tool chest of possible approaches, selecting each one to accomplish a particular task in a given situation.

Nueces County DA Mark Gonzalez

For example, if you want to eliminate money bail, maybe litigation is the only option. OTOH, if one wants to close prisons, that must be done through the Legislature, and in particular the House Appropriations and Senate Finance Committees.  Want to oppose local jail expansion? You'll need to lobby the county commissioners court. Or if one wants fewer people shot by police, the policies governing use of force are controlled by unelected administrators at local departments, with only indirect input from city managers or city councils. Each of these issues requires reformers to adopt a tailored approach if they hope to succeed; there's no one tactic which will transform the entire process.

Lately, it has become fashionable to claim that prosecutors are primarily or at least disproportionately to blame for mass incarceration, a view to which Grits only partially subscribes. But the principle champions of this critique have not developed viable visions for how prosecutors' offices might operate in the alternative. And so, the go-to move in the near term has been to run "reformer" DA candidates against incumbents, hoping a change at the top will trickle down throughout the agency.

However, using the electoral process to oust a DA is an expensive and difficult tool to employ among the array of possible options, and in many cases it may have limited practical utility. In some cases it can easily backfire. How can one tell if it's worth it?

Indeed, is it worth it at all? In a post responding to Josie Duffy Rice titled "'The Myth of the Progressive Prosecutor,'" Grits recently argued that, "Any differences between electeds play out at the margins of just a handful of individual cases. But the overarching structure and purpose of the institution inevitably remains undisturbed. Even when DAs take a progressive step, there are almost always pragmatic, internal reasons for it."

That flies in the face of expectations of reform supporters who back DA challenger candidates. Rice's colleague, Carimah Townes, recently examined the brief tenure of Nueces County DA Mark Gonzalez through the lens of a Disappointed Reformer, but it's unclear what exactly he was expected to do which would have pleased his critics.

Sure, Gonzalez could simply stop taking drug cases or use his discretion more radically to reduce local jail populations and prison commitments. But to expect him to do so is to expect things he never promised during his campaign.

Which brings us to what he did campaign on, and what reformers may reasonably expect from successful electoral strategies, particularly in the South. (Caveat: The new DA in Philadelphia appears to have a more visionary agenda, and I'm interested to see how he fares and exactly what he does differently from his predecessors. But none of our "reformer" Texas DAs promised anything close to his campaign platform.)

During the election, Gonzalez touted his own background as a proud defense attorney and Mexican-American motorcycle enthusiast. In addition, the remarkable "Not Guilty" tattoo across his chest gave voters an impression he would approach the job with a different sensibility. But the job is the job, as Grits argued in response to Ms. Rice's column. As long as decisions are being made within traditional frameworks - just by different lawyers - mostly the same outcomes will be reached, with a few differences at the margins whose importance will be magnified by the media beyond their real weight.

So why would one bother with an electoral strategy if that's the best outcome that can be expected? Generally, it's because the incumbent is so zealously "tough on crime" that it clouds their judgment and perspective. That was the case with Gonzalez's predecessor Mark Skurka. It was the case with the predecessors of Craig Watkins in Dallas and Nico Lahood in San Antonio (though both of those men later turned out to present their own problems). The ouster of John Bradley in Williamson County had important ripple effects throughout the state, even though his replacement turned out to be no great shakes and lost when she ran for re-election.

Kim Ogg in Houston is the exception to the only-a-bad-prosecutor trend. Her predecessor Devon Anderson was, relatively speaking, a reformer-Republican, though not as outspoken as Ogg. Her ouster resulted primarily from a partisan sweep that also saw all the judicial races flip and Hillary Clinton carry the county.

In Dallas, the Democratic primary race between John Creuzot and Elizabeth Frizell, who are competing for the right to take on Faith Johnson in November 2018, has taken on an establishment vs. reformer tone, with Creuzot (who switched parties to keep his judgeship, then switched back when Dallas turned blue) featured as an establishment foil, and Frizell as the ostensible resistance candidate. But Frizell's pitch, like Mark Gonzalez's, at the end of the day is incredibly general:

Frizell said her experience was different that that of Creuzot, who was a judge and prosecutor when Republicans controlled Dallas County politics.

"It's hard to do that when you came up in an era when prosecutors were not reform-minded," she said, adding that she would be a better choice to deal with bail reform and community concerns over police shootings.

That's a promise to have a subtle difference in perspective on the part of the agency's top decision maker, but it's not a promise for radical, progressive reform. She says she'll be "better" on these issues, but doesn't specifically say what she'd do differently.

Which brings me to why our friends at the Fair Punishment Project are inevitably disappointed when they see the elected DAs they supported in action: They've sometimes projected more reformist heft onto these candidates than their campaign rhetoric ever justified, which really isn't the candidates' fault.

Mass incarceration is not a partisan issue and replacing an R with a D, or vice versa, doesn't change much regarding how the justice system operates.

For most of these reformer DA campaigns, and certainly for Gonzalez's, the big pitch was "I'm less of an asshole than the guy who has the job now." IMO, only when that is reason enough - i.e., when the incumbent is so much more actively harmful than is typical that simply removing them from power would improve outcomes - is an electoral strategy justified. That's because such elections can send a political message to pols about voter preferences that other politicians, like state legislators, will notice and heed.

But with less egregious cases, unless one is very clear-eyed regarding the import of potential achievements (e.g., "getting rid of Mark Skurka is a good thing," which it is), electoral strategies targeting DAs will mostly result in disappointment in terms of reducing mass incarceration.

Don't say you weren't warned.

Spotlight on ineffective assistance: Barriers to remedies

Texas State Rep. Gene Wu once said to me there were three categories of professionals - attorneys, doctors, and engineers - who could do immense damage to people when they badly screw up.

He's right. Despite that, in the criminal justice realm, ineffective assistance of counsel  - in essence, a defendant's legal claim that their attorney did a bad job - remains a bit of a backwater issue. That's in part because the reform community tends to be defense oriented, and in part because its true frequency is hard to document. But it's also because the government is complicit in ineffective assistance by underfunding indigent defense, so there's a bit of a wink-and-a-nod arrangement for merely lazy as opposed to actively harmful representation.

Even so, for indigent defendants with appointed counsel and few choices, shoddy defense lawyering can have a huge impact on their lives. In the November episode of Just Liberty's "Reasonably Suspicious" podcast, Amanda Marzullo of the Texas Defender Service and I discussed some of the sources of and remedies for ineffective assistance of counsel. The first segment discusses the Texas House Criminal Jurisprudence Committee's pending study of ineffective assistance as part of an "interim charge." The second segment discusses a Texas death penalty case, Ayestas v. Davis, which was recently argued at SCOTUS and which relates to resources available to death row defendants in the 5th Circuit to investigate ineffective assistance claims. Between them, the two segments highlight some obscure procedural barriers to defendants who've been victimized by ineffective assistance and potential legislative solutions. Give it a listen:


Find a transcript of our discussion below the jump. And if you've ever been represented by a good lawyer, as the holiday weekend approaches, be thankful.

The amazing lengths to which the Texas CCA will go to ignore police misconduct and uphold dubious convictions

Here's a crazy case out of Harris County: The Government-Always-Wins faction on the Texas Court of Criminal Appeals wrangled a four-member plurality on a habeas corpus writ to overturn the trial court's recommendation and uphold a conviction in which law enforcement misrepresented the weight of drugs found on a defendant, calling it 26 kilos when the real amount of actual cocaine was likely less than a gram.

The reason for the discrepancy: A police officer stole the drugs and replaced them with sheetrock powder laced with cocaine so it would trigger a field test. While the defense stipulated Mr. Pena  intended to transport cocaine, we don’t really know how much because the cop stole it before they ever got to weigh it.

The case continues the CCA's longstanding penchant for finding excuses to compartmentalize severe police misconduct and uphold convictions in spite of it. The trial judge recommended the defendant be granted relief, but four members of the high court found excuses to tolerate this sordid situation.

That Mr. Pena admitted transporting cocaine is undeniable. That, in light of equally undeniable police misconduct, the state could prove he transported more than 400 grams of cocaine - which is what earned him the 15-year sentence - borders on laughable. Regardless, the GAW faction on the Court of Criminal Appeals demonstrated once again they will tolerate even the most egregious government misconduct to uphold a conviction.

In this case they only needed to convince Judge David Newell to join them for the win, though even he wasn't completely enamored of the main opinion: "[T]here is a palpable sense of injustice from allowing a conviction to stand when it is infected by such misconduct from a member of law enforcement," he opined, before doing precisely that.

Remarkably, three dissents - from Richardson, Walker, and Yeary - captured five of the nine CCA judges in opposition. But no more than three could agree on a single opposition theory they supported.

So the GAW faction prevailed over a splintered court, upholding the 15-year sentence even though, as Judge Richardson wrote, "the substance was actually less than one gram of cocaine sprinkled on top of 26,000 grams of sheetrock when Applicant was charged with possession of over 400 grams of cocaine." Their theory? The sheetrock should be considered the same as "adulterants or dillutants" used to cut cocaine and the full amount should be charged, even though a police officer planted it there!

In other words, the CCA plurality said it's fine if cops add adulterants to drugs and then charge the defendant for the larger amount. This jarring conclusion led to an excellent observation from the reader who brought this case to Grits' attention: "The courts already allow cops to lie. They don’t allow the creation of false documents. But now they are saying cops can fabricate the weight of the evidence. Who is to say all drug busts from now on won’t be subject to this weight adjustment scam?"

Just as disingenuous was their analysis regarding whether the officer tampered with evidence. Here's a headspinning quote from the main opinion showing the black-is-white, freedom-is-slavery type Orwellian reasoning they had to engage in to reach this conclusion:

there is no dispute that drug dealers returned Pena's car after placing an ice chest full of cocaine in the backseat, that Pena retook possession of the car and was the sole occupant of the vehicle when he pulled over, or that [the police officer's] misconduct took place before Pena took possession of the cocaine in his car. Based on this, Pena cannot prove that [the officer] tampered with or fabricated the drugs in Pena's car within the meaning of Section 37.09 of the Texas Penal Code.

Got that? Pena left his car and there were no drugs. Drug dealers put drugs in there, then a police officer stole them and replaced them with fake drugs laced with cocaine. But based on that, it cannot be proven that the officer "tampered with or fabricated the drugs in Pena's car." To this non-attorney observer, that's exactly what that proves!

This is yet another example of outcome-oriented judging by the Government Always Wins faction on the Court of Criminal Appeals - Keller, Hervey, and Keasler - and their occasional abettors. They tend to get away with it because no one is watching. But for those of us paying attention, some of these opinions are pretty hard to square.

Evaluating criticisms of risk-assessments in bail reform

Risk assessments have always been part of the justice system in some form or fashion. But until recently, there was little if any transparency surrounding them. Instead, they involved some unknown process that goes on in a prosecutor's mind, or a judge's, or a probation officer - even police officers. All of these people assess risk of re-offense and "future dangerousness" every day as part of their jobs. But who can really know on what basis?

That's why outsourcing risk assessments to external, independent, transparent instruments has been so controversial - 1) it's taking a decision making function from humans in the system who may rebel at a perception of decreased power, and 2) the fact of its transparency means a risk-assessment instrument may be criticized in a level of detail that the inner workings of a judge or probation officer's decisions could never be.

Grits has argued that risk assessments play a different role in different parts of the system and that pretrial detention is an area where the benefits likely outweigh the problems. Here's an excerpt (6 min.) from the November episode of the Reasonably Suspicious podcast elaborating on that conversation.


While criticisms of risk assessments have not yet scared me off their use in the pretrial detention context, they have caused me to pay closer attention to arguments from those who think they may be problematic.

Beyond critiques of racial disparities, these academic authors (Upturn's John Logan Koepke and David G. Robinson of Georgetown Law) blame risk assessments for using historical data which may not take into account concurrent reforms enacted alongside risk assessments that can mitigate the risk of pretrial failure (the most effective of which, they say, are repetitive reminder calls and texts). They also criticize agencies for basing risk assessments on data from other jurisdictions,  though they note that those created for a specific jurisdiction often have much smaller datasets. So there's a tradeoff between locality and a robust dataset, the importance of which they undersell just a bit. They recommend the instruments be frequently updated using local data to the greatest extent possible (which is a theme we visited in our podcast segment).

In essence, the concern is that data-based actuarial tools are inherently backward-looking and can't capture the effects of concurrent reforms. For example, "Expanded pretrial services will reduce the risk of failure to appear," but a risk assessment based on pre-expansion data wouldn't capture that. On the other hand, if the instruments are updated and validated periodically, over time that should work itself out.

Finally, in the case of bail reform - at least in the Harris County, Texas context - the maximal harm hypothesized from risk assessments simply doesn't outweigh harms from the status quo of requiring money bail for everyone:

If a risk assessment system is developed on data from before risk mitigating reform, and misjudges a defendant’s true level of risk, such decision-making frameworks might unnecessarily burden defendants who, in reality, do not need to be jailed or to receive as much supervision upon release as the matrix suggests, in order to succeed. This observation is especially relevant given the literature on lower-risk defendants and release conditions. Multiple studies have shown that lower-risk defendants actually succeed on release more often when released without conditions, and that placing conditions of release on lower-risk defendants can actually worsen their odds of success.  

Such a scenario — where defendants are systematically overestimated as riskier than they truly are, leading lower-risk defendants to be subjected to conditions of release that are counterproductive — could perversely sustain an avoidably elevated pre-trial failure rate. In the future, policymakers might look back on the move toward non-financial conditions of release as misguided, and might inaccurately conclude that, despite its ills, a money bail system is the least bad option. As we detailed above, the history of bail reform is one of unintended consequences. The risks we describe in here are not an unimaginable parade of horribles. Instead, they are plausible unintended consequences from today’s bail reforms.

That said, Grits agrees this is the greatest potential problem from implementing risk assessments. In many ways it's a bigger issue than racial disparities, or rather, it's the main reason why racial disparities are important. The impact of assessing low-risk people as medium or high can itself have a criminogenic effect and result almost in a self fulfilling prophecy. IMO that's a great argument for constantly updating and validating risk assessment instruments, but not for avoiding their use - at least in a place like Harris County where nearly all defendants, low-risk or high, would otherwise be held pretrial if they couldn't make bail.

The authors suggest adjusting risk assessment scores when the RA is based on pre-reform data:

jurisdictions that are reforming bail practices should rely on fresh and local data, gathered after their other pretrial reforms have taken root, in order either to build or to calibrate their risk assessment tools. Where prereform data is used, the tools must be numerically adjusted to take account of the helpful impact of reforms. Existing “off the shelf” risk assessment tools, whose predictions assume that defendants still face the same long odds of succeeding outside jail, should not be used without adjustment in jurisdictions where those risks have been mitigated.

In my experience that may be a hard sell. Those adjustments would become highly politicized numbers, and I'm not confident decision makers who spent millions fighting bail reform in the courts would rely on reformers' estimates to make them. Plus, if the reforms work, revisiting and adjusting the RA every couple of years, or even more often, would over time resolve the problem. But it's certainly another argument for continuous evaluation of the risk-assessment instrument.

In the podcast, where we landed was that supplementing RA information with counsel at bail hearings might mitigate disparities because a lawyer (in theory) can communicate a client's particularized circumstance to the court in a way the risk assessment cannot. In the near term, before assessments can be evaluated to take into account the effects of concurrent reforms, that may be the best guard we have against their shortcomings - known and unknown - resulting in negative, unintended consequences.