Wednesday, January 31, 2018

TJJD Ombudsman Firing: Shooting the Messenger

When one reads the press accounts which broke the recent scandals at the Texas Juvenile Justice Department or talk to the reporters who covered it, one thing becomes clear: Much of what we know would have remained a secret if it weren't for the work of Debbie Unruh and her staff at the Ombudsman's office.

So naturally, Gov. Abbott has fired her, the Houston Chronicle reported. The chair of TJJD's board is also gone, and the executive director of the agency had already been replaced by the head of Gov. Abbott's Criminal Justice Division (which is in charge of dispensing mostly federal grant money). See also coverage from the Texas Tribune.

Incidentally, the new board chair, Wes Ritchey, comes from the same job Grits' paternal grandfather had for 29 years: County Judge of Dallam County.

State Sen. John Whitmire defended the changes, declaring, "Surely they can't say that the status quo was working well." To which Grits would reply, "No, it's not, but the only way we know that is because of the good work of the Ombudsman who's now being fired."

I get firing the ED and the board chair, even if I wasn't happy with the subsequent ED's initial missteps. But firing the Ombudsman is a different breed of cat. Hard to see that as anything but shooting the messenger, which breeds skepticism about whether the Governor would rather solve the problem or cover it up.

Rather than embracing modern best practices on juvenile justice like Gov. Scott Walker in Wisconsin, Gov. Abbott is doubling down on failed big-government solutions from the past and shutting down voices that exposed its shortcomings. That's a discouraging start to what will surely be a long and painful process.

If Unruh's office had never documented and exposed some of these problems, they would continue to have been swept under the rug. Same goes for problems at county detention centers.

My own takeaway on this remains the same as when the latest scandal first broke: "The mechanisms the Legislature created [in 2007] to identify, prosecute and punish sexual misconduct by staff actually appear to have worked. But the corrections culture that produces these illicit relationships at TJJD and TDCJ continues to afford opportunities for predatory behavior." The Ombudsman's office is part of what worked in this case: It's the management and ultimately decision makers and budget writers in the Legislature who decided to keep these large facilities in rural areas far away from treatment or mental health resources, then underfund them to the point that, in some cases, staff turnover approaches 40 percent annually.

Will the next Ombudsman be anxious to expose problems at juvenile detention centers knowing that doing so got the last person fired? Not likely.

Unruh wasn't technically a "whistleblower" because her JOB was to expose this stuff. She wasn't doing it against the interests of the agency, it was part of her job description and the Ombudsman's explicit mission.

But the circumstance is essentially similar to firing a whistleblower: She's being punished after exposing problems everyone agrees shouldn't have been going on. Indeed, given that most of the changes at TJJD so far are non-responsive to the details of the recently reported scandals, punishing her seems to be prioritized over fixing the problems.

RELATED: "Shifting youth to adult prisons puts Texas on the wrong side of history."

Monday, January 29, 2018

Interview: Ron DeLord on the Ferguson Effect, police pensions, and why he considers Saul Alinsky a major influence

Recently, Grits interviewed Ron DeLord, the founder of the Combined Law Enforcement Associations of Texas and a lion of the Texas police union movement. An excerpt from our conversation (about pensions) was included in the latest Reasonably Suspicious podcast, but I wanted to post the full interview here.

We discussed whether the "Ferguson Effect" really exists, the ongoing fiscal crisis surrounding police pensions, and DeLord's lifelong promotion of the teachings of Saul Alinsky, whose philosophies and tactics have overtly animated his writing and political strategies for decades. Give it a listen:

Find a transcript of our conversation below the jump.

Friday, January 26, 2018

Reasonably Suspicious Podcast: Why Mein Kampf is okay but The Color Purple is banned at TDCJ

Check out the January edition of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice policy and politics. 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
  • Banned books in TDCJ (featuring Lauren McGaughy): Why Mein Kampf is okay but The Color Purple is banned.
  • Alleged interference at State Counsel for Offenders: Did TDCJ board dictate defense strategies?
  • Ron DeLord, founder of the Combined Law Enforcement Associations of Texas on police pensions, predicts defined benefit pensions for police will vanish within the next couple of decades.
Errors and Updates
  • Harris County magistrate judges sanctioned for bail SNAFU
  • Austin police union declines to re-enter negotiations after contract rejected
  • Richard Whitaker: Father of a death row inmate, who is also one of his victims, asks the governor, parole board to spare his son's life.
The Last Hurrah
  • Latest Dallas exonerations based on prosecutor misconduct
  • Quick results from drug-law change in Oklahoma
  • Twin Peaks biker cases soon headed to trial
Find a transcript of the podcast below the jump.

Thursday, January 25, 2018

Bail shenanigans, and other stories

Let's round up a few stories that merit Grits readers' attention and simultaneously will clear some of my browser tabs:

Bail shenanigans
Meagan Flynn's deep dive on the Harris County bail system is a must read. Between this and the Texas Tribune's coverage, the machinations by judges to undermine the federal court ruling, bordering on outright sabotage, become painfully apparent. Were it me, I would not choose to thumb my nose at a federal judge in quite that way. See coverage here, here, and here of a hearing this week calling Harris misdemeanor judges on the carpet.

Clear ruling from out of the fog
More on this soon, but see initial Statesman coverage of a Court of Criminal Appeals ruling holding that an officer conducted an illegal stop when the defendant was pulled over for his tire allegedly touching the "fog line" separating the right lane from the shoulder of the road.

Koch 💘 #cjreform
The Charles Koch Foundation is investing heavily in criminal justice reform, including in Texas.

New TX public defender emerging
Grits hadn't paid much attention to the creation of the Far West Texas Public Defender covering 10 rural counties. The Texas Indigent Defense Commission financed the project last fall, and it was just getting set up last fall.

Mental health, small jail grants
Another story I haven't been tracking closely is the dispersal of new mental health grant approved by the Lege last year. See a letter to counties by the bill authors, who also pitched to counties a new grant stream at the Commission on Jail Standards for jails with fewer than 96 beds to purchase tech.

Justifying more police in an era of declining crime
Recently, the New York Times pointed out that, despite crime plummeting in the last three decades, the number of police has not declined, wondering aloud, as if for the first time, whether they should. So it's in that context that Grits reads the Houston Chronicle headline, "As crime drops, police chief says HPD needs thousands more on the force." This is preventive excuse making. If crime goes down, Chief Acevedo will surely take credit. But if it goes up, he will say it's because he didn't get his officers, even though the number of index-crimes-per-officer is near its 30-year nadir.

Tarrant jail use study
For my own future reference, here's a link to a recent Tarrant County Jail Use study.

Raise-the-age opponents radically overstate 17-year olds' incarceration levels

The new head of the Texas Juvenile Justice Department opposes raise-the-age legislation - to increase the age at which youth can be prosecuted as adults from 17 to 18 - reported the Dallas Morning News, on pragmatic grounds. According to her, TJJD facilities are so dysfunctional that an influx of youth would "break" them. She estimated that the change would add 300-400 new youth inmates to understaffed Texas youth prisons.

This is such a brazen falsehood it's really hard to swallow! Looking at the most recent (2016) TDCJ Statistical Report, as of August 31, 2016, there were only 51 youths under age 18 housed in TDCJ (see p. 18 of the pdf; p. 8 of the document). Most of those were probably certified as adults, so the number of 17-year olds sentenced is even smaller.* Plus juvenile courts tend to use incarceration LESS than on the adult side, so that number would likely come down if 17-year olds are prosecuted in juvenile courts.

That influx could be easily handled by TJJD institutions with adequate budget support from the Lege - it's within the range of the year-to-year fluctuation on youth prison populations already. No big deal. Overall, offenses committed by 17-year olds tend to be similar to the caseloads of juvenile courts.

There would be some additional costs to the state budget, mostly for the added juvenile probation load. But for taxpayers, that would be offset because local county jails wouldn't have to be renovated to comply with juvenile detention standards under the Prison Rape Elimination Act to avoid costly civil litigation. The fact that the extra expense accrues to the county budget and not the state doesn't reduce its significance to taxpayers footing the bills.

Bottom line: There will be some additional cost for youthful offenders in the next few years, no matter what. The Legislature has tried to do the job on the cheap for too long. Eventually something had to give, which is what you saw at the Gainesville State School.

Grits has seen some insensible and overstated stances taken by raise-the-age opponents, who are becoming a little frantic as state after state amends their laws, leaving Texas increasingly isolated on this front. But overestimating the number of incarcerated 17-year olds by 600-800 percent is a little much. Let's at least please base this debate on real facts.

RELATED: Shifting youth to adult prisons puts Texas on the wrong side of history.

*The observation about youth certified as adults belongs to Lauren McGaughy, the Dallas News reporter who wrote the story, and was added after this post was first published.

Wednesday, January 24, 2018

Shifting youth to adult prisons puts Texas on wrong side of history

Grits feels a little deflated at news that the Texas Juvenile Justice Department will transfer youth prisoners to adult prisons in the Department of Criminal Justice, supposedly as "part of a push to boost security by working to remove assaultive youth," reported the Houston Chronicle. They're moving up to 35 juvenile offenders into the adult system.

It's a small number, but to the extent it gives us a window into state leaders' thinking, it's very much a move in the wrong direction.

Problem is, this approach is completely non-responsive to the recent scandals at the Gainesville State School, which supposedly is what's spurring the move. There, the problems were staff engaging in sexual predation against their charges. The assaults making headlines involved staff paying youth to assault other youth they didn't like! Staff turnover approached 40% annually because of low pay, plus understaffing created dangerous working conditions. And the location of state facilities in rural outposts meant youth had little access to mental health or drug treatment services.

That's not a problem with "assaultive youth," that's a problem with underfunded, understaffed, and unaccountable institutions.

Moreover, it's a problem that's at least as bad at TDCJ as TJJD, and probably worse for young, vulnerable inmates. When the Gainesville stories first came out, Grits observed:
These troubles mirror problems witnessed at the adult system, where sexual misconduct by staff at the Texas Department of Criminal Justice (TDCJ) is a big source of federal Prison Rape Elimination Act violations. The Texas Association Against Sexual Assault has recommended the Legislature create an independent oversight mechanism at TDCJ comparable to the Ombudsman created for TJJD after the 2007 scandals.
So TDCJ has the same problems, but TJJD has more systems in place to catch them (which is how the Gainesville scandal arose in the first place - media reports didn't surface until after four staff were indicted).

The Chronicle story tells us the governor backs the move, in addition to Senate Criminal Justice Committee Chairman John Whitmire, who is quoted more prominently in the story.

But the better approach is being modeled right now by the governor in Wisconsin, Scott Walker, who is responding to a similar scandal at that state's main youth prison facility in which two guards were indicted. Instead of shifting youth into the adult system, he's following best practices identified a decade ago in Texas based on the "Missouri model," an approach that emphasizes community corrections and smaller residential units housing fewer than 48 inmates each.

Governor Abbott and state leaders in Texas, though, appear inclined in a direction contrary to the best practices followed elsewhere (and recommended by its own blue-ribbon panel a decade ago). And it's not just conservative governors like Scott Walker shifting away from big institutions toward a more modern, evidence-based approach.

This week the National Conference of State Legislators issued a set of principles regarding juvenile justice,  which included this recommendation: "Determine the maximum age of juvenile court jurisdiction, the age of extended jurisdiction, and the scope of transfer to the adult system in accordance with research on adolescent brain development, behavioral change and the effects on public safety."

The reference to "research on adolescent brain development" stands out here. Grits has argued that the push to raise the age of adult criminal culpability in Texas from 17 to 18 is an effort to bring Texas into the 20th century, but not the 21st. In the modern era, following the lead of brain science showing youthful brains continue developing into the mid-20s, even that age looks a little young.

Massachusetts recently raised the minimum age there for adult prosecution to 19 years old. The best evidence from neurological research, a judge in Kentucky found last year in evaluating the death penalty for young defendants, shows that the brains of 19 and 20 year olds are more like those of someone aged 15-16 than they are of someone aged 25.

In that light, Texas remains on the wrong side of history, both in continuing to charge 17 year olds as adults and in the recent shift of youthful offenders into adult prisons. Sen. Whitmire declared, "I am very positive on the plan to once and for all make Juvenile Justice safe." But we've heard that before. A quick check of the Houston Chronicle archives finds Harold Dutton, chair of the House committee overseeing TJJD, declaring to R.G. Ratcliffe in 2007 (March 11, p. A1) that Texas would fix the problem "once and for all" back then. Yet state leaders failed to execute the plan experts laid out for them, refusing to pony up for sufficient staff or smaller, residential facilities, and so here we are.

Now, once again we're hearing promises to fix the problem, but unlike Scott Walker in Wisconsin, Lone Star leaders are doubling down on outdated approaches. Texas needs to look for more appropriate models for dealing with young offenders, not more ways to ratchet them into the adult system as quickly as possible.

Monday, January 22, 2018

TDCJ interference alleged at State Counsel for Offenders

A new report from a Texas state bar committee offered damning criticisms of the State Counsel for Offenders, alleging improper influence exerted by the Texas Department of Criminal Justice, its parent agency. Applying the American Bar Association standards for indigent defense to the office, the analysis concluded that chronic underfunding and a lack of managerial independence accounted for inadequate defense services on behalf of Texas prisoners.

See coverage from the Texas Observer and KWTX.

The agency has been subsumed within TDCJ and does not even have its own line item in the state budget, according to the report, standing in stark contrast to the Special Prosecution Unit, which is an independent agency that prosecutes cases at TDCJ. "SCFO lawyers trail their prosecutor counterparts in both salary and resources to litigate cases, such as funding to pay experts," the Observer summarized.

The bulk of the report is made up of a survey of current and former attorneys at the agency, published anonymously, and there are many statements that allege serious problems, but which would have to be investigated further to be corroborated. Chief among those are allegations of direct interference by the TDCJ board in SCFO affairs.

Wrote one attorney, "I was directed to withdraw from representing a client after the SCFO director returned from a TDCJ Board meeting in the summer of 2013. A number of other attorneys were also directed to change legal strategies in particular cases when the SCFO Director returned from the TDCJ Board meeting."

If that allegation is true, somebody probably should have complained to the state bar about an ethical violation. TDCJ shouldn't be the one in charge of inmates' lawyers if they're going to put their thumb on the scale in their cases.

Another example of interference involved the civil commitment program. One attorney said they'd encountered no interference in the appellate section, "However, the time it did occur troubled me as I (along with the rest of the civil commitment section) were told not to pursue a certain type of defense in civil commitment cases."

Seventy percent of survey respondents disagreed that SCFO attorneys "have sufficient independent discretion to adequately represent their clients."

Again, all this comes with a caveat: This study stems from a survey of current and former SCFO attorneys which, while instructive, hardly amounts to proof of allegations of misconduct. It's a red flag, not yet a full-blown indictment.

But without a doubt, some reporter, researcher, auditor, legislative committee, state-bar ethicist, or other independent fact finder needs to follow up. This report identified a ton of smoke. It'd be well worth the effort to investigate for an underlying fire.

Seeking books 'designed to achieve the breakdown of prisons through offender disruption'

Grits loved the Dallas News' coverage of the Texas Department of Criminal Justice's 10,000+ banned books list, both for books dubiously banned and for those allowed. But my Reasonably Suspicious podcast partner, Mandy Marzullo, noticed an interesting tidbit the stories didn't highlight. We discuss it in the podcast which will be out this week. Lauren McGaughy reported that the book Freakonomics was banned for:
"racial content" that could be construed as being "written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption." 
This was reported without comment, but there are at least two problems with this determination. First, there's no mention whatsoever of race or "racial content" in the actual TDCJ policy (which is quoted near-verbatim and linked in the story). Both were put in quotation marks by the mail clerk who rejected the book, but only one is quoting anything. There's no legitimate justification for rejecting a book under TDCJ policy based on "racial content," which means the policy isn't really being enforced and the mail clerks and review committees are using subjective (in this case, race-based) criteria to make their decisions.

Second, the idea that the book Freakonomics was "written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption" is absurd and laughable on its face. Not only was it not written solely for that reason, the authors might find it surprising to learn that anyone, anywhere, ever interpreted their writing that way. Meanwhile, Mein Kampf and books by David Dukes get in without a hitch. (No "racial content" in those books, I'm sure!)

In a lot of ways, TDCJ has promulgated a stupid policy. (After McGaughy's coverage, and interest from House Corrections Committee Chairman James White, that policy is now under review.) Can anyone name a book "written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption"? If so, I'd like to read it. Grits has never heard of such a thing.

Even books like Angela Davis' autobiography, for example, which in part describes her own efforts to organize California prisoners to disrupt that prison system in the '70s, wasn't written "solely" for the purpose of communicating that information; it was part of a broader black power movement whose purposes where diverse and extended far beyond the prison yard.

I'm curious: if anyone knows of some devilish manual that meets the precise description in that policy, including the "solely," please leave the title in the comments. As I write this, I'm not certain such a volume exists.

Magistrates admit Harris judges pressured them to require money bail

Three Harris County magistrate judges were sanctioned by the State Commission on Judicial Conduct for failing to grant personal bonds to low-risk defendants who deserve them, reported the Houston Chronicle, and their reaction seems, to this writer, tantamount to an admission of the allegations in the federal litigation pending at the 5th Circuit.
The rebuke by the Texas Commission on Judicial Standards cites hearing officers Joseph Licata III, Jill Wallace and Eric Hagstatte with a public admonition and ordered them to take additional educational instruction. 
The order from commission chair, Justice Douglas S. Lang, said the board took into consideration that the hearing officers testified on Dec. 7 in Austin that they had been told by Harris County criminal court judges they should not grant cash-free bonds or more affordable bond rates. They said they feared they would be fired if they didn't comply. (emphasis added)
So the magistrates' defense was that elected judges ordered them not to grant cash-free bonds! Too bad that admission wasn't part of the evidence in the case that went to the 5th Circuit, but there's a hearing tomorrow to decide whether these admissions amount to evidence the judges withheld in the civil case. Regardless, there's plenty of other evidence being considered that shows the same thing.

Kudos to state Sen. John Whitmire for filing the complaint, it got the magistrates to cop to some pretty important admissions.

RELATED: In Dallas, the Texas Fair Defense Project and the ACLU of Texas just filed new litigation similar to the bail suit in Harris County, in which TFDP is also participating. A press release came via email just minutes after Grits hit "publish" on this blog post. MORE: See coverage of the new case from the Dallas Morning News.

Thursday, January 18, 2018

Snippets of opposition to Austin's police-union contract

A local Austin activist posted on YouTube some of the testimony from December at the Austin City Council against the police-union contract. (See Grits' writeup after the event.) Your correspondent was one of the speakers in opposition, and I post my testimony here mainly to show off Grits' favorite shirt:

Since Grits had earlier interviewed Campaign Zero's Sam Sinyangwe and highlighted his research on Austin police contract, let's also post his testimony from the same hearing.

And here's Chris Harris, a super-bright, young activist from Grassroots Leadership, who like many others that night did a great job, but who in particular made some excellent, data-based points that the local media have avoided over the many months this contract was being debated:

Go here to watch more testimony from the hearing.

Two Big-D capital-murder cases overturned for prosecutor misconduct

Stanley Mozee and Dennis Allen, two Dallas men convicted of capital murder and sentenced to life prison for a 1999 robbery, have finally been cleared of capital-murder charges after the Texas Court of Criminal Appeals approved habeas relief last week.  Their cases were championed by the national Innocence Project and my former employers at IPOT. The CCA set aside their convictions without confirming their innocence. (In cases lacking exonerating DNA or other forensic evidence, that's typically been the best the CCA has been willing to do.) There will be no new trial, however. The Dallas DA's office already agreed to their release in 2014 pending this decision, and has agreed the cases should be set aside.

Instead of straight-up innocence claims, the convictions were overturned based on withheld exculpatory evidence, the failure of prosecutors to disclose incentives for snitch testimony, and prosecutor Rick Jackson allegedly soliciting testimony he knew was false then failing to correct it. See good writeups from the national Innocence Project and from The Open File. Here's the order from the trial judge the CCA affirmed, and 2016 coverage of the case from the Dallas News.

RELATED: This seems like a good opportunity to link to attorney Jessica Brand's recent explainer article, "The Epidemic of Brady Violations Explained." The Michael Morton Act resolved some, but not all, of the discovery problems in Texas, it should be said. The disclosure requirements on Texas prosecutors today significantly exceed those under Brady, which exclusively governed criminal discovery at the time Mozee and Allen were tried.

CORRECTION: The date of the robbery and conviction were misstated in the original post and have been corrected.

Sunday, January 14, 2018

Texas should replicate OK approach on drug felonies

Your correspondent has maintained for years that, after Jim Thorpe left, the best thing ever to come out of Oklahoma was I-35. Grits has long been a staunch advocate for a border wall, but would prefer it built along the Red River instead of the Rio Grande. However, after Okie voters approved adjustments to the criminal code to reduce sentences for user-level drug possession to a misdemeanor, perhaps it's time to cast off such dated views.

Prosecutors in Oklahoma County, reported The Oklahoman, filed 24% fewer felony cases in 2017 compared to 2016, declining from 10,043 filed in 2016 to 7,628 in 2017, or a 24% drop. The increase would be even bigger but the new drug laws didn't take effect until July. Estimated the local public defender, "Probably at least two-thirds of the decrease was the decision of the voters to pass the criminal justice reform measure on lowering felonies to misdemeanors for low-level theft crimes and for drug possession charges." Which means that not only did the new law successfully reduce prison admissions by diverting low-level drug cases, other felony crimes appear to have declined at the same time. (N.b.: Drug manufacturing and distribution remain felonies.)

Texas has passed numerous justice reform measures in recent years, but our Legislature has balked at the drug policy change Okie voters made. Now that the approach has been proven to work, Texas should follow their lead.

Saturday, January 13, 2018

'Agree with me or I will kill you': On plea bargaining, the death penalty, and life without parole

Me, Harris County DA Kim Ogg, and Shannon Edmonds from the Texas District and County Attorneys Association commented in a Houston Chronicle story this week on the role of life-without-parole sentences in plea bargaining in capital cases. I'd suggested:
"There has always been speculation about whether that has encouraged prosecutors to file capital cases more than they otherwise would because what better leverage do you have in a plea bargaining situation than, 'Agree with me or I will kill you,'" said Scott Henson policy director with the non-profit Just Liberty, which advocates for reducing incarceration. "The government will literally kill you if you don't go for life without parole and there is no stronger bargaining chip than that."
District Attorney Kim Ogg, whose office has overseen less than 25 life without parole sentences since she took the reins last year, pushed back against that suggestion. 
"We don't use the death penalty as a plea bargaining tool," she said.
Hmmmm ... What is plea bargaining, Grits wonders, if not a negotiation over sentences? More lenient sentences are offered as an incentive for the defendant to admit guilt and avoid a trial. Since the only two sentences available for capital crimes in Texas are death and LWOP, one wonders what else there is to bargain over if the death penalty isn't used "as a plea bargaining tool"?

Taking the claim on its face, perhaps this might explain the large number of cases charged as capital which don't result in capital sentences: when prosecutors take death off the table in a capital case, LWOP becomes the top sentence in a plea negotiation. So offering non-capital murder or some other charge with the possibility of parole would become the only negotiating chip to incentivize plea deals. Sufficient, county-level charging data doesn't exist, to my knowledge, to confirm that hypothesis, but I'm not sure why anyone would plea bargain to LWOP if the death penalty weren't being threatened.

If the Harris DA under Kim Ogg doesn't use the death penalty to get LWOP plea bargains, I'm glad to hear it. Shannon Edmonds from TDCAA, however, considered it par for the course "that prosecutors used the death penalty to get a guilty plea."
Shannon Edmonds, staff attorney and director of governmental relations for the Texas District and County Attorneys Association, said his group doesn't have an official position on the matter. 
"It kind of tickles me that defense lawyers are upset that prosecutors aren't trying to kill their clients," he said. "Even if the punishment was a minimum of 40 years on a capital life sentence, they still complained that prosecutors used the death penalty to get a guilty plea. That's not anything unique to life without parole."
So, there's that.

Finally, Houston attorney Pat McCann raised an issue that's been discussed recently on this blog and on the podcast - non-capital cases don't receive legal representation at the habeas-corpus stage, nor automatic review by the Texas Court of Criminal Appeals or the federal courts:
Unlike with death-sentenced cases, there's no automatic appointment of post-conviction appellate counsel and no punishment phase of the trial, which makes the whole process quicker and cheaper. 
"Life without parole was an unintentional gift to major urban prosecutors' offices," McCann said. "It makes it very easy to dispose of a large number of violent and often youthful offenders without any more thought than one would need to toss away a piece garbage."
Much has been written about the financial costs of the death penalty, but McCann's observation raises another important and less-often-discussed point: The reason the death penalty tends to drive criminal-justice debates isn't just the symbolic importance of imposing the maximum punishment. It's that defendants sentenced to the death penalty have attorneys representing them throughout the process, and so weak or unconstitutional prosecutions are more likely to be exposed.

Flawed forensics, for example, may be challenged at the habeas stage under Texas' junk science writ. But only capital defendants are guaranteed an attorney at that stage. Same goes for ineffective assistance, prosecutor misconduct, and other common habeas claims.

Death cases these days are more thoroughly vetted by appellate courts, at least at the federal level. (State-level representation in Texas capital cases too often remains shoddy.) But for the LWOP prisoners, McCann's "piece of garbage" comment isn't far off. Court of Criminal Appeals Judge Elsa Alcala has suggested extending the right to counsel in habeas proceedings to non-capital cases in order to pursue ineffective assistance claims. There's a strong argument to be made that LWOP sentences deserve the same level of automatic, post-conviction vetting.

Thursday, January 11, 2018

More than 1% of all Texas men in prison

How does Texas' incarceration rate stack up to other states? Still on the high side, according to the new Bureau of Justice Statistics report, "Prisoners in 2016."
At year-end 2016, 12 states had imprisonment rates that were greater than the national rate of 450 per 100,000 U.S. residents of all ages: Louisiana (760 per 100,000 state residents), Oklahoma (673 per 100,000), Mississippi (624 per 100,000), Arizona (585 per 100,000), Arkansas (583 per 100,000), Alabama (571 per 100,000), Texas (563 per 100,000), Missouri (532 per 100,000), Kentucky (518 per 100,000), Georgia (512 per 100,000), Florida (481 per 100,000), and Nevada (460 per 100,000) (table 7). ...
More than 1% of all males in seven states were in prison on December 31, 2016: Louisiana (1,469 per 100,000 male state residents), Oklahoma (1,207 per 100,000), Mississippi (1,200 per 100,000), Arkansas (1,095 per 100,000), Alabama (1,085 per 100,000), Arizona (1,071 per 100,000), and Texas (1,040 per 100,000).
So Texas is one of only seven states that incarcerates more than one percent of men. That's an unfortunate club in which to claim membership.

The report also noted a red flag for Texas: Admissions in Texas rose by 2,500 from 2015 to 2016 - one of only three states to see such an increase.

These sorts of data are why Grits sometimes tires of crowing about Texas' 2007 community corrections reforms credited with leveling off prison population growth, which had seen a steep upward trend before then. Even so, Texas remains vastly over-incarcerated. And 2007 was now more than a decade ago. It's nigh past time in 2019 for the Lege to take additional steps.

RELATED: From the Houston Chronicle, "Texas female prison population rises as male population decreases."

Wednesday, January 10, 2018

Twin Peaks defendants offered misdemeanor probation, negligent murder, and other stories

Let's clear some browser tabs with a roundup post. Here are several items of which Grits readers should be aware, even if I haven't had time to write about them:

Twin Peaks defendants headed to trial
The McLennan DA offered one of the 150+ defendants in the Twin Peaks biker massacre a plea deal of a deferred misdemeanor probation instead of the first-degree felony he was charged with, and the defendant said no, we're going to trial. Grits had earlier placed the over-under regarding how many of the original 177 people arrested would be convicted of anything at 1.5. That still sounds about right, though at the moment, if Grits were a betting man, I'd place my wager on "under." I couldn't begin to estimate the over-under regarding how much this fiasco may eventually cost McLennan County in civil suits for constitutional rights violations, but it'd be a good bet it'll be a non-trivial number.

Firing director not a cure-all for Dallas juvie detention woes
In Dallas, the juvenile probation director may or may not have been run out of her job but is definitely on the hot seat for allegations that youth under her care at a treatment center weren't allowed time for outdoor exercise. The same facility last year witnessed allegations  that five boys aged 13 to 17 engaged in sex acts with one another while sleeping on the floor of the cafeteria due to understaffing. I don't dispute that the chief needs to go, but this is not an NFL team. Firing the coach doesn't change much about a government bureaucracy, which is more effectively influenced through the passage of laws, policies, and budgets. At the end of the day, real solutions will likely involve ponying up more money for staff and services to solve the problem, not just firing the bureaucrat in charge.

All about the money
It took a guest columnist instead of working reporters to get to the heart of the debate over Austin's newly rejected police contract. Read Lauren Ross' article, it's the first time in the local press that the economic critiques of contract critics have been presented to MSM consumers in full form.

Six year old died in awful shooting by Bexar deputies
A six year old was killed by a stray bullet last month after four Bexar County Sheriff's deputies, including one with a rifle, opened fire at an unarmed suspect, who also died (law enforcement insists she earlier had a gun but now cannot find it). As a result, the Sheriff is reviewing use of force policies. This one is a mess. The officers appear to have fired based on assumptions they brought with them to the scene, not what they saw in front of them. And clearly they didn't take into account that she was standing in front of an occupied mobile home when they opened fire. Bodycam footage would help here. A GoFundMe page was created on behalf of the family to cover funeral expenses.

Some TDCJ units ill-equipped for cold weather
The Texas Department of Criminal Justice faces allegations that inmates at up to 30 units slept in un- or under-heated cells during the recent cold snap. TDCJ denies the problem, but the Texas Inmate Family Association identified a couple of dozen underheated units, notably including the Allred Unit near Wichita Falls. Editorialized the Fort Worth Star-Telegram, "An ongoing lawsuit is demanding the state improve summer conditions. While they’re at it they should fix the heating for winter."

Negligent murder?
In Waco, a murder conviction was overturned because the jury was instructed to convict a defendant of murder based on "reckless" and "negligent" rather than "intentional" behavior. (A day care owner had given children in her care Benadryl and one of them died.) Prosecutors have appealed the case to the Texas Court of Criminal Appeals, where three votes to uphold the conviction are virtually guaranteed.

Clemency beneficiary reoffends
When Barack Obama issued sentence commutations to hundreds of drug offenders, it was inevitable that some of them would eventually reoffend. That has finally happened in San Antonio. The Express-News had the coverage. While some may use this to criticize the commutations, to me it's remarkable it's taken so long for somebody to screw up, and more remarkable still that the overwhelming majority of those with commuted sentences have not gotten into trouble again.

3 policies that punish the poor
Rudy Apodaca, the former chief judge of the New Mexico Court of Appeals, now living in Austin, had a column in the Express News linking three punishing policies for the poor: Overreliance on property taxes, money bail for criminal defendants, and the Driver Responsibility surcharge. He concluded, "Without change, the rich will continue to get richer and the poor poorer, the gap between them growing further apart. And caught in between, the middle class will keep struggling."

(Literally) sick of prison food
The Atlantic has the story of prison food literally making inmates sick. Prison inmates are six times as likely to contract a food-borne illness compared to the rest of the population, a recent study found.

With less crime, do we need fewer cops?
The Washington Post pointed out that, despite crime plummeting in the last three decades, the number of police has not declined. "In 2016, there were slightly more officers per capita than in 1991, when violent crime peaked, according to data collected by the F.B.I. Now, officers deal with half the crimes per capita that they did then." Grits could make an even stronger case that we have too many prosecutors.

Friday, January 05, 2018

Austin press coverage of police contract still sucks, and other stories

Here are a few odds and ends that deserve readers' attention even if I haven't had time to turn them into full, independent blog posts:

Austin press coverage of police contract still sucks
The Austin press continues its one-sided coverage of the City Council's rejection of the police-union contract, larding their articles with quotes from contract supporters and minimizing the views of critics without fully explaining them. In an Austin Chronicle story published yesterday, for example, contract supporters were given a platform for predicting doom while contract critics were dismissed as know-nothings (e.g., my wife was dubbed a "gadfly"). According to reporter Nina Hernandez, council members who voted against the contract (all of them) "hadn't exactly considered the consequences of their decision," though there's no sourcing, much less factual basis offered for that opinion. Later, appearing to contradict herself, she complained that the council was "suffering information overload," which hardly jibes with her earlier calumny that they hadn't sufficiently studied the topic.

The truth is, MSM reporters in Austin appear as a class to have misunderstood and misreported this entire debate from the get go. Ms. Hernandez now says she recognizes that, as one council member instructed her, "the Council's vote was more about the money" than the oversight piece (which means the press were the only ones in the room that night who didn't understand what they were watching). But no one in the local media is yet reporting on the most important implications of the scuttled contract: Freeing up around $10 million that the city council can spend in the current fiscal year over and above their current budget. How and when to spend that money is where the actual debate has moved at city hall, as well as among the activist players involved. But the press continues to flail, having missed the story and spun false narratives for so long that they don't now know how to begin to catch up. It's as though there's an almost willful decision by the local Austin press corps not to publicly report on what these debates are actually about.

Texas law mandates bad bodycam policies
Note to reporters who want to localize a story about police bodycams based on the Leadership Conference/Upturn recommendations, like this recent SA Express News story: Texas' law is the source of the most important bad practices, like letting officers accused of misconduct review video before they're questioned, or erecting barriers to accessing video under open records. Increasingly more departments, most recently Arlington and Plano, are purchasing body cameras for their officers. MORE: Here's a new academic piece on body cameras from Seth Stoughton for the to-read pile.

Private prison company gets rep on Windham task force
One of the governor's new appointees to Texas' task force on "Academic Credit and Industry Recognition" at the Windham School District (which operates educational programming at the Texas Department of Criminal Justice) works for a private prison company, reported the Longview News Journal.

Maybe time to tone down the 'war on cops' meme
The number of police officers killed in the line of duty in 2017 was the second lowest total in 50 years. While every death of an officer is a tragedy, this low total doesn't comport with the "war on cops" meme that's been prevalent for the last couple of years. Suicides and traffic deaths remain the more significant killers of sworn police officers.

Analyzing 2017 shootings by police
The new report from Mapping Police Violence is a must-read. By their count, 1,129 people were killed by police in America in 2017. MPV researchers "were able to identify officers in 534 cases. At least 43 had shot or killed someone before. 12 had multiple prior shootings." Also, "Most killings began with police responding to suspected non-violent offenses or cases where no crime was reported. 87 people were killed after police stopped them for a traffic violation." The number of those killed who were unarmed was 147. Notably, "Police recruits spend 7x as many hours training to shoot than they do training to de-escalate situations." FWIW, the Washington Post came up with a slightly lower number for Americans killed by police; Grits doesn't yet understand why the difference. It's remarkable that the number of people shot and killed by the government isn't tracked more closely than this in an official capacity. This should be a number we know.

Why long sentences matter
Too much of 2016 and 2017 was spent debating Prof. John Pfaff's position that long sentences weren't a significant driver of mass incarceration. He was wrong. This 17-minute podcast from the Urban Institute lays out the problem of too-long sentences and shows why reducing them is key to ending mass incarceration.

Healthcare spending reduces crime, violence
In the big picture, the observation from the Brookings Institute that health care spending prevents crime makes loads of sense. That's particularly true where health and crime specifically intersect - like drug abuse and mental illness, where treatment and related social-service supports can prevent crime both directly and indirectly. One study they cited "found that an increase in the number of treatment facilities causes a reduction in both violent and financially-motivated crime. This is likely due to a combination of forces: reducing drug abuse can reduce violent behavior that is caused by particular drugs, as well as property crimes like theft committed to fund an addiction. Reducing demand for illegal drugs might also reduce violence associated with the illegal drug trade."

Trump DOJ rescinds anti-debtors prison guidelines
The decision by the Trump DOJ to rescind guidance on minimizing debtors-prison practices was ill-conceived and a disappointment. But it was only ever guidance, and rescinding it in and of itself changes nothing. What has always mattered more is what state and particularly local actors choose to do on the ground, and that remains an open question. Texas legislators in 2017 took long-awaited first steps toward confronting the problem of arresting poor people over fines, but there's much more to be done. It remains to be seen whether - much like the push to reform asset forfeiture laws - movement conservatives continue to push for reform in spite of the Trump Administration staking out a more regressive agenda.

Monday, January 01, 2018

Texas getting better at identifying problems at juvie facilities, but not fixing them

In reaction to revelations of dysfunctional youth prisons, advocates including your correspondent have been calling to dismantle them and shift to smaller facilities located closer to the urban areas from which most of the youth first came. (Check out Grits' interview with former Dallas News reporter Brandi Grissom on the topic.) I still think that's a good idea.

But we must then pay closer attention to how locals are treating juvenile offenders under their care. For example, inmates at one secure youth-treatment center in Dallas may go months without being allowed to exercise outside. Here's the lede to the Dallas News article breaking the story:

Unused basketball courts at the Lyle B. Medlock
Youth Treatment Center in South Dallas
Death row inmates in Texas are given at least an hour a week outdoors. Hardened criminals inside California's famous San Quentin prison get 10 hours.

Yet kids at a Dallas County correctional center for boys went months, sometimes more than a year, without going outdoors more than a few times.

For years, the boys at the Lyle B. Medlock Youth Treatment Center in southern Dallas County were rarely allowed outdoors, according to former guards, probation officers and families of incarcerated teens.

One boy said he was locked up for nearly 10 months and wasn't let outside for exercise once.
That we even know about this is a testament to the creation of the Independent Ombudsman at TJJD as part of the 2007 reforms, and the expansion of their authority to include local facilities. They began inspecting local juvenile detention facilities in 2015 and immediately identified the issue, reported the DMN. By May 2016, "During a third ombudsman visit, in May 2016, the inspector again noted the lack of outdoor time and submitted a 'Request for Plan of Action' to Dallas County juvenile officials: 'What plan can be developed and implemented at Medlock that would ensure youth have access to outdoor recreational areas?'"

So the mechanism to identify the problem worked, but the Ombudsman was not empowered to enforce her request to create an action plan for changing a bad policy. That didn't happen until the County Judge saw the Morning News article and sent the juvenile probation director a Nastygram, after which the policy was immediately changed.

Ideally, you want government structures that identify problems in order to fix them, not to allow them to linger until some reporter catches on and embarrasses the government into changing bad policies. This reminds me of Austin's police monitor, which at its best made important recommendations for reform but had no authority to fix the problems they'd identified.

At a minimum, when the Independent Ombudsman recommends this sort of policy change, local officials should be required to either implement the recommendation or formally reply to explain why they won't.

The TJJD Ombudsman had similarly identified most of the problems the Dallas Morning News reported on as Brandi Grissom was on her way out the door (check out Grits' interview with her; this was Brandi's final story as Austin bureau chief). So they're giving government officials an opportunity to rectify problems long before they become front-page news, but it's just not happening.

Which leads Grits to this conclusion: Legislators were successful in 2007 at creating a mechanism to identify problems at state and local facilities. But waiting until already-identified problems mushroom into front-page scandals and crises makes little sense. Someone must be empowered to fix identified problems, and to force local actors to adjust bad practices when they persist in the face of Ombudsman recommendations.