#MeToo among Texas women prison guards

Go read Keri Blakinger's new Houston Chronicle story on the topic.

Keri writes that, "female officers also have to contend with harassment from coworkers, masturbating inmates and fear of retaliation if they complain, according to lawsuits, state records and interviews." Here are the crux of the allegations:

“You think it’s the inmates you have to worry about,” said one former employee, who asked not to be identified, “but it’s actually the people you work with.” 

Some women told the Chronicle of enduring lewd comments or inappropriate contact from co-workers. One female employee said she and other women guards picked jobs working around inmates to avoid having contact with the men who supervised them. 

The latest allegations come after the department reached a $250,000 settlement last year in a lawsuit accusing a male lieutenant of raping an officer he supervised — a claim reminiscent of former assistant director Sammy Buentello, who retired in 2004 amid criminal charges and a high-dollar lawsuit by multiple women accusing him of sexual harassment and assault. 

TDCJ officials, however, say that sort of workplace environment is a thing of the past. 

“Any days of a male-dominated culture are long gone,” said Lorie Davis, director of TDCJ’s Institutional Division and the highest-ranking woman in the agency. “We have a lot of women that move up through the ranks.”

Ms. Davis seems to think that because, as a division manager, nobody sexually harasses her, that it's not a problem at the agency: “I haven’t experienced sexual harassment as a female in our agency in years,” she said. “Years and years, not since I was a corrections officer literally 30 years ago.”

Does anybody really believe that, in Texas' predominantly rural prison system, where guards are paid roughly half the wages of the counterparts in California, for example, and more than one in four positions turn over annually, that the "days of a male-dominated culture are long gone"?

That seems awfully hard to swallow.

Killing off Texas' drug-task force system: A reminiscence

State Sen. Juan "Chuy" Hinojosa called this morning to reminisce about the effort to rein in and, ultimately, de-fund, Texas' system of multi-county drug task forces, a campaign referenced in this post, and he was such an unsung hero in that story, Grits thought it worthwhile to recount his role briefly.

State Sen. Juan "Chuy" Hinojosa

The Tulia drug stings arguably mark the beginning of the 21st century Texas #cjreform movement, but by the time they occurred, Chuy Hinojosa was already a veteran legislator in the Texas House and was poised to chair the House Criminal Jurisprudence Committee in 2001. From that position, he carried and passed legislation to require corroboration for informants in undercover drug stings which was bitterly opposed by prosecutors and police unions. Then-rookie Sen. Leticia Van de Putte carried it in the Senate, and ended up taking on a bigger fight than she'd bargained for!

The campaign for a corroboration bill took on a life of its own, with local religious activists from Tulia organizing their people to come to Austin, while allies came out of the woodwork, from the right and left alike, in support of a drug-policy reform agenda which previously had no, obvious legislative champions. This was essentially tilling virgin, bipartisan terrain. (Check out a contemporary flyer from that campaign promoting our bill among religious conservatives; here's the "mainstream" version.)

The House floor vote on the Tulia corroboration bill was the first time in living memory that a bipartisan, grassroots, reformist faction outflanked the center-right ruling faction on criminal-justice topics. The media loved the Tulia story and trumpeted the success everywhere, helping bring additional resources and momentum to the nascent #cjreform movement in Texas. Groups like the Texas Criminal Justice Coalition and the Texas Fair Defense Project were created during this period in the early aughts - it was the first time the movement here had institutions as opposed to just a few disparate voices.

Perhaps even more importantly, that floor vote provided a template for passing a flood of reform legislation that followed. In retrospect, it was a pivotal moment.

Hinojosa continued to demand accountability from drug-task forces, and finally the other side pushed too far. In 2005, during session, the senator reminded me today, he was pulled over by a drug task force officer who suspected him of being a drug courier, perhaps because the senator was driving a nice vehicle. The senator believed he was being racially profiled, or worse, targeted for filing reform legislation to force all the task forces under control of the Texas Department of Public Safety. After that happened, the Senate's passage of the put-em-under-DPS bill was a fait accompli.

By this time, most of the Tulia defendants had been exonerated and pardoned, the cop who set them up had pled guilty to perjury, some of the task forces had been targeted via federal civil rights litigation, and your correspondent had spent several years compiling examples of task force abuses in a campaign based out of ACLU of Texas aimed at getting rid of them. In other words, the terms of debate had significantly changed.

The Legislature refused to get rid of drug task forces outright in 2005, but they did pass a compromise bill putting them under control of the Department of Public Safety Narcotics Division, which at that time was run by Patrick O'Burke, a square-jawed, no-nonsense guy who demanded more accountability using better metrics than they were used to.

In  the end, the majority of task forces refused accountability and declined to follow some or all of O'Burke's new rules.

Meanwhile, at ACLU of Texas, we were encouraging every eligible entity in the state that might compete with drug task forces for Byrne grant money to apply to the governor, even sending blank applications and pitch information to various local officials by snail mail and following up with calls encouraging them to apply. Many did, and every time one of them made a compelling case for funding, it simultaneously made an implicit case that the task forces shouldn't receive funds.

At this point, in 2006, then-Governor Rick Perry surprised everyone. Drug-task forces were funded through his office's Criminal Justice Division using federal Byrne grants, and he decided to turn off the spigot. A few task forces tried to keep going until their asset forfeiture money ran out, and others created single-county task forces outside of DPS control (and without state or federal money).

In the end, except for a few that scaled back to a much-reduced single-county footprint, they all just went away. When the Tulia drug stings happened, there were 53 multi-county task forces covering most of the state and employing around 700 narcotics officers who collectively made some 12,000 arrests annually. And then they didn't. Moreover, I dare say, for all the sound and fury surrounding their de-funding, I haven't heard them mentioned (by Texans) in years and as far as I can tell, no one misses them.

However, there's a somewhat dark and unfortunate coda to that story. When Gov. Perry de-funded Texas' drug task forces, he decided to split the pot of federal money to pay for two other priorities: 1) drug courts and other specialty court dockets, and 2) the original "border security" surge along the Rio Grande which presaged the current DPS/National Guard surge (read Melissa del Bosque's story on the border surge if you haven't already; go ahead, I'll wait).

Eventually, federal Byrne funds were replaced with hundreds of millions of general revenue dollars, most of it to pay for the Department of Public Safety to rotate troopers to the border for inefficient, short-term deployments.

So abolition of the Byrne-grant funded drug-task-force system in Texas was a victory for bipartisan justice reform - both liberals and small-government conservatives support scaling back the failed drug war - but it freed up funds for an unnecessary and problematic militarization of the border.

According to Sen. Hinojosa, the border-surge priorities issue goes far beyond just DPS troopers not making DWI arrests in the rest of the state. He cited Parks and Wildlife not having enough personnel for duties in the northern part of his senate district around Kingsville/Corpus Christi because they're all deployed in the Valley.

Grits appreciated the senator calling to reminisce after reading my drug-task force post from the weekend. There aren't that many of us still in the game who remember all of that well enough to tell the stories.

So, a day late after Memorial Day, here's a hearty thank you to a former marine, for his service a lifetime ago in Vietnam, to be sure, but for his yeoman's service on these topics, as well. ¡Gracias, Chuy! 

Considering ineffective assistance without all the voices in the room

The Texas House Criminal Jurisprudence Committee the other day held an under-attended hearing (hardly anyone in the audience and no quorum on the dais - video here) covering three topics: the legal framework behind sexual assault prosecutions (which bled into discussions of crime labs), prosecutor misconduct, and ineffective assistance of counsel (IAC).

In this post, let's consider their discussion of ineffective assistance, first recounting what was said on the topic, followed by a few words about issues Grits wishes the committee would have addressed.

Hearing highlights: Levels of IAC 'very disconcerting'
Stacy Soule, the State Prosecuting Attorney told the committee the number of ineffective assistance cases being heard by the Texas Court of Criminal Appeals is "very disconcerting," warning legislators, "this is not something that's on the margins." By contrast, findings by the CCA of prosecutorial misconduct are relatively rare.

Soule predicted Texas will soon see cases where ineffectiveness is alleged based on defense attorneys failing to invoke the Michael Morton Act or examine the state's evidence.

Grits has heard the same thing, fwiw, particularly in jurisdictions where attorneys are given electronic access to discovery, which means prosecutors and judges can tell if they never bothered to access it. This apparently happens a good deal of the time. Eventually, that documentation may be used to claim attorneys were ineffective if they never downloaded discovery materials. Possibly, entire county systems could be held accountable if it could be proven they knew attorneys didn't look at discovery and kept hiring them to represent indigent clients, anyway. These were the thoughts running through my head as Grits listened to the SPA's testimony.

In that vein, our pal Shannon Edmonds, the Texas District and County Attorneys Association lobbyist, complained that prosecutors have had to hire additional staff to comply with the Michael Morton Act, only to find that many defense attorneys never seek to review it.

Edmonds suggested the Legislature change the law to make public any defense attorney's settlement over grievances with the state bar related to ineffective assistance claims, just as they did for prosecutors in response to misconduct allegations a few years ago. Grits would support that.

According to Soule, as of last week, the CCA had granted IAC relief in nearly 200 cases already this term, with a month left to go before it ends.

While offering no remedies for IAC, Soule suggested it was a big problem for prosecutors for the following reasons:

• may result in wrongful convictions
• takes a substantial toll on the judiciary's resources
• creates difficulties re-prosecuting old cases years later

"Ineffective assistance of counsel is a systemic and long lasting problem," Soule declared.

Linda Acevedo from the state bar disciplinary committee said the state bar doesn't typically sanction lawyers for ineffectiveness, except in cases where lawyers outright ignore or fail to communicate with their clients. In addition, there has been an uptick, she said, in cases where criminal-defense lawyers get involved in immigration cases, don't know what they're doing, and screw them up (my paraphrase) because they are "not competent" to work in the area.

Geoffrey Burkhart, the new head of  the Texas Indigent Defense Commission  who replaced Jim Bethke, told the committee that IAC isn't a "few bad apples" problem but is a systemic issue. (Grits' thought: Can't it be both? After all, bad apples spoil barrels.)

Burkhart said IAC generally boils down to two issues: "The no body problem and the warm body problem." As for the "no body problem," many criminal defendants still do not get counsel or do not get a lawyer soon enough in the process. In some counties, said Burkhart, appointment rates are as low as 10 percent.

The "warm body problem," he said, stems from (often flat) fees for indigent defense being so low that attorneys must work on volume. As a result, attorneys don't spend a lot of time on each case and begin to "jettison core defense tasks."

The Sixth Amendment is a "gateway right," said Burkhart, because without a lawyer one can't enforce one's other rights to due process, etc..

The Texas Indigent Defense commission can only formally audit and inspect a handful of counties each year, Burkhart noted, but in 17 years the agency has never once performed such inspections and found a county in compliance with the Fair Defense Act, he said. Because of that, he said, TIDC tries to play more of a collaborative role instead of taking a gotcha-mentality.

Chairman Joe Moody implied at one point that Texas' indigent defense funding mechanisms might be the subject of federal civil rights litigation based on equal-protection grounds: "You have a situation where you have a constitutional right that's being applied very differently based on where you're charged with a crime."

Notably absent from this portion of the hearing was the criminal-defense bar, who apparently don't mind letting prosecutors' representatives define their problems for state legislators.

Testimony the Committee should have received
Although it's possible she couldn't do so because of conflict with judicial duties (even though legislators won't legislate again until after she's off the court), I found myself wishing Judge Elsa Alcala had been invited to the hearing to testify. She's described in detail the structural barriers to challenging ineffective assistance in CCA dissents and concurrences, and recommended legislative action in response. In particular, she believes the Legislature should expand the right to counsel to include habeas writs, only for purposes of challenging ineffective assistance claims.

Grits would add that the Legislature should consider a remedy to the issues raised by the US Supreme Court's decision in Davila v. Davis, which held that lawyers' ineffective work on state habeas proceedings did not excuse a procedural default because there's no constitutional right to counsel in state habeas proceedings. IMO, there should be some way statutorily to ensure that ineffective lawyers don't prevent defendants from pursuing meritorious claims in state habeas proceedings. This hearing would have been a great opportunity to receive input on the question.

In a dissent to that case, joined by three other justices on SCOTUS, Justice Breyer pointed out the same problem with Texas IAC law in that case as Judge Alcala has been raising: State habeas corpus writs are the "first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial," and there's no right to counsel at that phase.

Given all this judicial interest - not just from the CCA but from SCOTUS - Grits was sure these issues would be considered at this hearing. But they never came up.

Grits also wished they'd had some law prof or researcher to provide some context to the numbers the State Prosecuting Attorney put out, about which Shannon Edmonds tried to imply that a handful of prosecutor misconduct cases or the few dozen IAC claims upheld by the Court of Criminal Appeals represented the entire universe of bad-lawyer behavior in the justice system. That's absurd, but the contention was allowed to stand un-rebutted.

In reality, there are dozens of hoops a case must get through before the CCA agrees to hear it, and many (in fact, by far, most) legitimately problematic cases of prosecutor misconduct and IAC never get that far.

Fort Worth Attorney Mike Ware, speaking of his work with the Innocence Project of Texas, meandered toward that point, telling the committee that IAC and prosecutor misconduct both are typically "hidden." DNA evidence might exonerate someone, he said, then when people looked back to say, "why was that person convicted?," they might find IAC or misconduct by a prosecutor. But without that needle-in-a-haystack discovery, no one would ever know.

That's the case in most instances, both of prosecutor misconduct and IAC. The few cases we see are examples of patterns which exist more broadly in the justice system, but only rarely show up in state appellate court opinions.  As with actual innocence cases, one should look at them much like a small statistical sample, each one representing many more unseen cases out in the world.

There are other aspects of ineffective assistance the committee should have addressed, not the least of which are high caseloads among attorneys appointed to represent indigent defendants. A recent Texas Tribune story found that, in Travis County, "the 10 private Austin-area attorneys with the most appointments handled an average of 533 cases in 2017." In Harris County, totals run even higher! The Texas Indigent Defense Commission has created excellent tools for analyzing these topics, so the issue is ripe for more detailed study.

The underfunding of indigent defense at this level amounts virtually to a structural guarantee of ineffective assistance. From a political perspective, this is not a bug, it's a feature. Texas' indigent defense systems were created, and most recently upgraded (2001), during a period of tuff-on-crime excess. They were designed to facilitate convictions, not to defend against them. After all, if defense lawyers were better, counties would need more prosecutors (who also have excessive caseloads), judges would have to respond to more motions, and court dockets would fluctuate considerably before reaching some new, for-now unpredictable equilibrium. Basically everything about the courts gets a little more expensive and everybody has to work a little harder.

That said, Grits doesn't buy complaints that indigent defense costs are an "unfunded mandate" from the state, any more than prosecutors' salaries are an "unfunded mandate." The budgetary arrangement for many decades in Texas has been that counties take care of funding local court and jail costs and the state pays for prisoners they send to TDCJ. I'm not against the state contributing more on indigent defense, but IMO it should only be done if counties pick up some of their share of the "unfunded mandates" running in the other direction in the form of long prison sentences, possibly through a cap and trade arrangement.

Underfunding indigent defense is a concern, and more funding must be part of any solution, but it's not happening in a vacuum, and it's not the only cause of ineffective assistance.

RELATED: Spotlight on ineffective assistance: Barriers to remedies

You can't prevent overdose deaths by scaring people into not calling 911

In 2015, Gov. Greg Abbott vetoed life saving "Good Samaritan" legislation that would have let people call 911 when their friends overdose without being prosecuted. But some states are going even further, prosecuting survivors for murder if they shared drugs with an overdose victim, the New York Times reported this week:

As overdose deaths mount, prosecutors are increasingly treating them as homicide scenes and looking to hold someone criminally accountable. Using laws devised to go after drug dealers, they are charging friends, partners and siblings. The accused include young people who shared drugs at a party and a son who gave his mother heroin after her pain medication had been cut off. Many are fellow users, themselves struggling with addiction. 

Such cases are becoming more common even as the role of the criminal justice system in combating drug abuse has become hotly contested, and even as many prosecutors — including those who pursue overdose death cases — say they embrace the push to treat addiction as a public health crisis rather than a crime.

This is pointless and has no public safety value whatsoever. All it does is make it less likely overdose victims will receive life saving medical treatment during the critical moments when it could help them. The War on Drugs has been such a miserable failure: It not only doesn't achieve any of its public safety goals, it largely seems to worsen public health outcomes.

RELATED: This academic article examines the role of coroners and medical examiners in charging overdose deaths as murder.

Video games spuriously blamed for school shooting violence

Lt. Gov. Dan Patrick wants to respond to the Santa Fe school shooting by cutting subsidies aimed at luring video game manufacturers to Texas on the grounds that they promote a culture of violence. “We have devalued life, whether it’s through abortion, whether it’s the breakup of families, through violent movies and particularly violent video games, which now outsell movies and music,” he told ABC News' George Stephonapoulos. Grits has a long record of respect for the Second Amendment,  but this seems like pure deflection: “We cannot sit back and say it’s the gun,” Patrick told ABC-News. The guns aren't to blame, but video games are? Huh.

Personally, Grits believes violent video games have contributed to crime reductions, and this article co-authored by a couple of Texas academics demonstrates why. (Bottom line: Kids spending hours honing video game skills don't have time to burglarize your house.) In 2012, the Washington Post reported that, "the United States has the highest firearm murder rate in the developed world. But other countries where video games are popular have much lower firearm-related murder rates."

RELATED: The Houston Chronicle published good commentary debunking this false meme about video games.

Rooting for Sterling Brown

My wife didn't previously know Milwaukee had an NBA team and couldn't pick Giannis Antetokounmpo out of a lineup. But the Sterling Brown case has caught her attention and fueled her outrage. Brown, a 6'6" shooting guard, was approached by a police officer for parking in a handicapped spot outside a Walgreens at 2 a.m.. Rather than ticket him and let him go, the officer called for backup and Brown was dragged to the ground, cuffed, and tazed. Brown himself isn't letting the issue go, and the statement by the Bucks on the case was exceptionally strong.

Seeing as Brown played at SMU in his college days, there's a vague Texas connection here. But as the missus' reaction demonstrates, this case appears poised to become culturally important beyond jurisdictional specifics.

Sports permeates aspects of the culture that a political protest on the same topics could never reach, which is why the NFL anthem protests have been such a source of controversy. One can choose to watch Fox News or MSNBC if you only want to hear political views from a narrow perspective. But sports media remain more catholic and largely transpartisan. If you want to watch Lebron James face the Celtics in Game 7 of the NBA's Eastern Conference finals tomorrow night, for example, whatever your political perspective, you're watching ESPN.

That means, for once, everyone sees the same narrative (thank heaven there was video!), and it's an ugly one: The kid cooperated, remained calm, was polite and respectful, complied with every request from police, and was tackled and tazed for his troubles.

My wife can't name a single, active NBA player beyond Lebron James, but now she knows who Sterling Brown is. And she's rooting for him.

Remembering Texas' now-defunct drug-task-force system

On Twitter, a reader came up with a blast from the past, asking whatever happened to Texas' multi-jurisdictional drug task forces, which I'd written about in two different public-policy reports back when I worked for the Texas ACLU, along with countless Grits posts in the mid-aughts:

• Too Far Off Task (2002), and
• Flawed Enforcement (2004)

The answer, long-time readers may recall, is that Gov. Rick Perry de-funded all of Texas' task multi-jurisdictional narcotics forces in 2006, shifting half the money to drug courts (and other types of specialty courts) and half to border security (this was the first pot of money spent to bolster border security in Texas on essentially nativist grounds).

This transition was the result of a multi-year campaign which began in the aftermath of the Tulia drug stings in 1999, an episode which in many ways marks the beginning of the modern criminal-justice reform movement in Texas.

The timeline went thusly: In 2005, the Legislature put the task forces under control of the Texas Department of Public Safety, which created rules to regulate them under the same strictures as DPS' own Narcotics Division. But the task forces balked at the new rules, in many cases openly defying the DPS commander in charge of them. And a year or so later, Gov. Perry simply chose to spend federal grant money on other priorities.

To my knowledge, Texas is the only state to get rid of its drug task forces on accountability grounds, and it's worth noting that the sky didn't fall. Indeed, hardly anyone who wasn't a grant recipient seemed to notice or care. Grits has maintained for years that other states should follow Texas' lead.

MORE: Check out a followup post.

On recidivism, abolitionism, diversion, zoning, and other criminal-justice stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused elsewhere:

Pam Colloff kicks ass
Pam Colloff's journalism pretty much defines excellence. All her stuff these days is (very) long form, so we don't get much of it. But when they come out, they demonstrate that Colloff is at the very top of her game, not to mention her profession. Read her latest from ProPublica/New York Times magazine.

Houston uses zoning to restrict offender services
Empower Texans first raised the alarm about the City of Houston using zoning to reduce access to halfway houses and reentry services within the city limits, and now In Justice Today has followed up with a more detailed explication. Bad form, this. The Legislature should consider eliminating cities' ability to restrict these locations. In the world of NIMBYism vs. public safety, public officials should take safety every time.

Praise ignores TX missteps on overdose policy
The Beaumont Enterprise says Texas is "finally getting it right" regarding opiod overdoses, but that's a dubious claim. The reference is to Attorney General Ken Paxton joining a lawsuit against opiod manufacturers. But Gov. Greg Abbott in 2015 vetoed life saving "Good Samaritan" legislation that would have encouraged people to call 911 when someone overdoses by protecting them against criminal charges. Moreover, the main thing needed to combat addiction is treatment, and the state's stalwart refusal to expand the Medicaid program has done more harm to addicts than any civil suit will protect them. That's giving General Paxton and other Texas state officials way too much credit.

McSpadden removed from capital case because of idiotic race comments
Grits criticized Judge Michael McSpadden's comments about defendants receiving advice from Black Lives Matter the day after they the first appeared in the press, and now his reactionary views have gotten him removed from a death penalty case to avoid the appearance of bias. Serves him right.

Bite me, Daubert
Bite mark evidence is junk science, but it's still being admitted as evidence in American courtrooms.

Most returning prisoners can't avoid arrest
A new Bureau of Justice Statistics analysis of recidivism data from 30 states found that, 83 percent of offender released in 2005 were arrested at least once over the next nine years. Of the 44 percent arrested "during the first year following release, nearly 9 in 10 (89%) were arrested again during the next 8 years." Fewer than one in five made it nine years without being arrested again. That said, one can be arrested for anything - in Texas, police can arrest motorists for Class C misdemeanor traffic offenses. So it'd be more helpful if the report included a) data on convictions and reincarceration and b) breakouts by offense type. What little we get of the latter indicates that only a fraction of arrests were for serious violent crimes.

Prosecutor elections the newest site for reform work
This Marshall Project story is correct that, in a very short period of time, prosecutor elections have become an important, contested site from criminal-justice reformers. Even when reform advocates lose - as happened in the Dallas Democratic primary - their participation shifts the conversation more squarely on reform topics that otherwise get little attention.

Considering abolitionism
Grits has never completely rejected the positions of prison abolitionists so much as I have avoided them - to me, we're a long way from when that conversation is ripe, certainly here in Texas. In a world where Lone-Star-State reformers have tried and failed for more than a decade just to reduce drug-possession penalties from a felony to a misdemeanor, such theoretical suggestions that we incarcerate no one have to me seemed premature. Why discuss whether people who commit violence should be incarcerated when the Legislature remains unconvinced that drug addicts shouldn't be caged? We struggle to win the "fewer prisons" argument, much less the "no prisons" argument. A couple of recent editorial offerings, however, at the Guardian and the Washington Post, challenge us to begin thinking with a post-prison mentality now. From the Post, "In the United States, 70 percent of our criminal sanctions consist of incarceration. That’s why it’s all we can think of. But a world that operates without an extensive reliance on prison is not a utopia; it is only a plane ride away. In Germany, incarceration is used for 6 percent of sanctions; in the Netherlands, it’s 10 percent, according to a 2013 Vera Institute report comparing our criminal-justice system with theirs."

Say it ain't so!
This new academic article on asset forfeiture suggests that, "Law enforcement agencies may be targeting the crimes that present the opportunity to raise revenue for their departments rather than the most serious public safety threats."

Evaluating prosecutor diversion programs
Here's one for the reading pile: A NIJ analysis of prosecutor-led diversion programs.

Lies, damn lies, and claims by counties about unfunded mandates on indigent defense

Officials in Tom Green County are telling the press and the public that the state owes counties some $2.6 billion for indigent defense costs dating back to 2001.

This is silly and utterly false.  The state of Texas in reality doesn't "owe" counties a dime for indigent defense and is not "in arrears." But when government officials repeat a lie often enough, folks begin to believe it. As it happens, I recently addressed this question in the comments, but since the meme is spreading, let's repeat what I said here:

The counties are calculating their increased costs post-Texas Fair Defense Act (2001) and claiming the state should pay for those. That's silly, for reasons I've discussed before. First, inflation and population increases account for much of the growth. The rest comes from counties being forced to provide counsel in cases where they SHOULD have done so before but were not adequately shouldering their responsibilities.

IMO the state should only agree to reimburse more to counties for indigent defense if counties agree to a cap and trade system to limit mass incarceration on the back end. 

The locals want to retain all the discretion and shift all the costs to the state, but that's not how politics works.

Reasonably Suspicious: The conservative case for reducing drug penalties, DWI arrests plummet, and other stories

Does God have a Texas accent? Mandy Marzullo and I address this and other pressing questions on the latest edition (May 2018) of Just Liberty's Reasonably Suspicious podcast. Give it a listen!

Here's what we discussed this month:

Top Stories

• Prosecutors flailing with Twin Peaks biker massacre cases.

Interview

• Scott talks to David Safavian of the American Conservative Union Foundation on why Texas should reduce penalties for low-level drug possession from a felony to a misdemeanor.

Suspicious Mysteries

• Why have the number of arrests for DWI and drunkenness plunged in Texas since 2010?

Death and Texas

• On the use of forensic hypnosis in death penalty cases.

Stop the Train

• Promoting Just Liberty's new decarceration campaign and jingle.

The Last Hurrah

• Russian troll farms most successful projects were Blue Lives Matter posts.
• With San Antonio launching a pilot program, what will it take to approve needle exchange programs in Texas?
• Texas' "subjugation rate" (the number of people in prison, jail, on probation and on parole) declined from 1 in 22 a decade ago to 1 in 41 today. What is the cause?

Find a transcript of the show below the jump.

You're getting sleepy, so you won't notice Texas is still using junk science like 'forensic hypnosis' in death penalty cases

Before reading the rest of this post, relax, breathe, and follow the swinging pocket watch.

Feeling suggestible? Great, now we can begin!

Junkiest of junk science
While Grits was out of pocket this last week, Lauren McGaughy of the Dallas News had a feature on forensic hypnosis in light of the looming execution of "Charles Don Flores, 48, [who] was convicted in the 1998 slaying of Elizabeth “Betty” Black after a neighbor was hypnotized to recall the features of two men she’d seen going into the victim’s Farmers Branch home the morning of the murder."

A Farmer's Branch police officer who'd never hypnotized anyone before failed to follow a number of mandatory requirements under Texas Court of Criminal Appeals jurisprudence in Zani v. Texas, and even those today seem absurdly outdated.

For more background, Mandy Marzullo and I discussed the case in the November episode of Just Liberty's Reasonably Suspicious podcast, and the Dallas Observer published a feature heavy on adumbration of the relevant court cases earlier this year. Those cases so far have all approved of forensic hypnosis. And Texas has the most robust regulatory structure in the country for a practice that to most informed people ranks on the level of psychics or palm readers when it comes  to sources of good evidence.

As Grits recounted in December, the Zani case allowed forensic hypnosis to go forward based on an understanding of human memory that science now considers rudimentary and false. From the majority opinion:

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.

As it turns out, the "videotape recorder" theory of human memory is hoakum. Junk. A.k.a., bullshit.

That's why, reported McGaughy, "According to a 2012 study, half of U.S. states now have "per se inadmissibility rules" barring hypnotically induced evidence in criminal cases."

Scientists now believe memories are recreated anew each time the brain retrieves them, Grits learned during debates over eyewitness identification practices. Moreover, memories are malleable, and Elizabeth Loftus has shown that they can be altered or even created through hypnosis.

Texas' new junk-science writ provides a new vehicle with which to test this antiquated junk science, which hasn't been considered by the Court of Criminal Appeals since 2004, the year before the creation of Texas' Forensic Science Commission.

Today, the practice has fallen out of favor at most agencies. "There are about two dozen forensic hypnotists in Texas at this time, the majority of whom serve in the Harris County Sheriff’s Office and Texas Rangers." That's down from 152 statewide in 1999, McGaughy reported.

There's been a lot of water under the bridge since 2004 regarding Texas' statutory and jurisprudential posture toward junk science. So Grits believes there's a decent chance the CCA could reverse their past position on this, perhaps (tea-leaf reading from afar) by as much as a 6-3 margin.

OTOH, the state just executed Juan Castillo without ever hearing arguments regarding whether recanted jailhouse informant testimony was significant enough to warrant a new trial. So it's always possible they'll do the same thing here, finding excuses to look past the issue in order to allow the machinery of death to lurch forward unimpeded.

A conundrum: Why capital cases are the best/worst vehicles for reforming bad practices
This brings up an odd conundrum with capital cases: The Texas public overwhelmingly supports the death penalty and has little sympathy for capital defendants. At the same time, death-penalty defendants frequently are the only indigent clients who get anything like a zealous defense throughout the appellate process, not to mention two experienced attorneys at trial.

So death-penalty cases often raise issues with broader implications for the justice system - e.g., the implications of allowing forensic hypnosis as evidence - just because enough lawyers focus on the case as time goes by to more thoroughly vet issues and raise problems. But they often feature unpopular defendants about whom the media may have been beating the drums for many years by the time problems in their case are examined. When I was with the state Innocence Project, even actually innocent defendants were typically unpopular in their home jurisdiction until the day of their exoneration, and sometimes even after that (ask Anthony Graves).

That's why Grits is sanguine, but not overly optimistic, that Texas' 19th-century conceptions of forensic hypnosis might be overthrown in the face of 21st century science. I believe if the issue were to come squarely before the CCA on the merits, forensic hypnosis would likely be dumped. But there are many ways the issue could avoid serious consideration and Mr. Flores still be executed, and unfortunately, that's not an unlikely outcome, either, if one were setting odds on where all this might lead.

Did Texas DPS 'border surge' cause DWI enforcement reduction?

A Grits commenter suggested a fascinating and viable theory regarding the source of radical reductions in DWI arrests across Texas in recent years:

a local judge that I know who oversees a DWI Court he has opined that DWI placements are way down in his jurisdiction and that he felt there was a correlation between the redeployment of local DPS troopers to the border. He said DPS made up the majority of their local DWI arrest. It would be interesting to see if there was any actual link between the border surge and decreases in local DWI arrest.

What do we think about this?

Grits was immediately reminded of a bout of reporting in 2015 detailing how DPS coverage in the rest of the state went down when the border surge began. As R.G. Ratcliffe wrote for Texas Monthly:

The [El Paso] Times' Marty Schladen reports that DPS warning tickets have increased since 2012 by 14.5 percent in border counties, which also saw a 13.5 percent decline in fatal accidents. During the same period, warning tickets elsewhere in Texas declined by 29.3 percent, while the number of fatal accidents increased by 6 percent. 

If the number of warning tickets in non-border-surge areas of the state declined 29% from 2012 to 2015, the idea that the same trend caused a statewide decline in DWI arrests (34% reduction from 2010-2016) doesn't seem far-fetched.

Grits doesn't immediately have enough information to confirm this hypothesis, but it fits more of the data points, not to mention the timeline, than most other possible explanations.

Meditating on misdemeanors, the human toll of prison understaffing, and other stories

Here are a few odds and ends that will simultaneously clear my browser tabs and point readers to a few interesting items about which I don't have time to blog now.

Latest Texas DNA exoneree denied testing for years
Congratulations to Texas' latest DNA exoneree, John Nolley, and thank you to the Tarrant DA Conviction Integrity Unit and our friends at the national Innocence Project for getting him out and clearing his name. For that matter, good for the Court of Criminal Appeals for finally overturning his conviction, though they did not join in proclaiming him actually innocent. If the Tarrant DA vouches for his innocence, however, he would be able to receive compensation, anyway, under the exception carved out for Anthony Graves. Notably, reported a local TV station, "After years of defense attorney attempts, a judge ordered that the DNA of Nolley be retested" once the DA's Conviction Integrity Unit was on board. So while that speaks well of the Tarrant Conviction Integrity Unit, CIU's are a recent phenomenon and only exist in a few counties. The case remains a black eye on a system that could not secure justice for Mr. Nolley through traditional mechanisms and speaks to the system's failure to adequately vet convictions without extraordinary interventions.

The human toll from prison understaffing: Telford Unit case study
At the Texas Tribune, Jolie McCullough performed a deep dive into the effects of extreme understaffing at the Telford Unit in New Boston, a problem which dramatically worsened after the murder of a guard in 2015. Understaffing creates problems both for staff and inmates, she reported, making things more dreadful and dangerous for both. The report comes on the heels of a story from USA Today about the deadly effects of prison understaffing in South Carolina - in that case from slashed budgets as opposed to the vicissitudes of labor economics.

Arrested for pot, raped in jail

This young mother's story sounds like a living nightmare.

Ramsey-unit quota scheme on inmate discipline revealed
TDCJ is reviewing inmate disciplinary cases at the Ramsey Unit after it was revealed a captain there had implemented a quota system requiring minimum numbers of disciplinary reports. This is another Keri Blakinger scoop from the Houston Chronicle. Jennifer Erschabek from the Texas Inmate Family Association was quoted in the story saying, "One of the biggest complaints we have from family members is that an officer has written a bogus case and there's no way for people to fight that because it becomes a he said-he said type of situation and an inmate has no recourse."

'My life as an execution witness'
The Houston Chronicle has an interview with former TDCJ spokesperson Michelle Lyons about her new book chronicling her experience witnessing more than 200 executions over the course of her career.

Meditating on misdemeanors
Edward Spillane, a municipal court judge in College Station, has an interesting article in the University of Chicago magazine titled, "The Meditative Judge," in which he discusses issues of "mindfulness" and what he's learned applying meditative focus methods on his misdemeanor court docket. He believes that, "A mindful focus on individual defendants in the courtroom can allow judges to contribute to large-scale reform. Applying punishments mechanically actually creates criminal justice failures. A focus on the present allows a judge to gain more insight into each defendant and serve the best interests of everyone in his or her court."

AG pitch on revenge porn a PR move

Mark Bennett has written how some folks simply can't believe the US Supreme Court meant what it's said in rulings about protected speech, and apparently Attorney General Ken Paxton is one of them. His office filed an amicus brief with the 12th Court of Appeals seeking to overturn their ruling that Texas' revenge-porn law is unconstitutional. (Bennett appears unfazed.) I'm not a lawyer, but Grits predicts this effort will be futile: Way too little, too late, that ship has long-ago sailed. This is more about positioning oneself in a culture-war debate, with little relation to the legal questions at stake. IRL, the AG needed to win earlier cases declaring "improper photography" or "online solicitation of a minor" unconstitutional if they wanted Texas courts to reject the First Amendment doctrines at stake, which themselves rely on long-established SCOTUS 1A interpretations that Texas probably couldn't buck, anyway. (Bennett has also maintained that the statute against online impersonation fails on the same grounds.) But now that the Court of Criminal Appeals has, multiple times, unanimously adopted precisely the reasoning upon which the 12th Court is relying, it's hard to imagine how a rehearing would make any difference. Which means that, since the AG's motion got press, he has already achieved his goals.

Reyna doubling down on dubious Twin Peaks cases
The original Twin Peaks cases are being dismissed but McLennan County DA Abel Reyna is doubling down and recharging a couple dozen defendants on charges of murder and rioting. At this point, it seems unlikely Reyna will be in office when these new cases finally get their day in court, so it's hard to say if this is pure grandstanding. But past reports indicated that everyone actually involved in the shootout that day is dead, either from a biker enemy's bullet or at the hands of a police sniper. If that's true, the murder charges seem spurious and the rioting charges dubious. But IMO we probably can't trust official pronouncements on these questions until Reyna is out of office.

Sacerdotal schooling for inmate preachers
The seminary at TDCJ's Darrington Unit for prisoners with very-long sentences who go on to serve as ministers throughout the Texas prison system just had its fourth graduation, and the Houston Chronicle's Keri Blakinger had a report.

Jade Helm taught Russian trolls how to divide Americans

"Blue Lives Matter" posts were the most successful progeny of Russian troll farms during the 2016 presidential election, The Daily Beast reported recently. In related news, the Jade Helm controversy to which Gov. Greg Abbott responded by assigning the Texas State Guard to "monitor" federal troops also turned out to be a fabrication of Russian internet trolls. And our governor fell for it.

Medicine is the best medicine
The best approach to combating addiction is treatment, not incarceration. So it's not surprising that Virginia has discovered that expanding Medicaid is the best way to combat the opiod epidemic and rising overdose deaths. The program pays for treatment which may otherwise only be accessed by indigent people if they're arrested and ordered into treatment as a punishment.

Texas' unnoticed reduction in alcohol-related crimes: DWI and 'drunkenness' arrests way down

An observant commenter suggested declines in DWI cases may have contributed to plummeting misdemeanor probation caseloads, and he raises a good point. Grits replied thusly in the comments:

Re: DWI arrest stats* (see historical statewide arrest data here): 

2010 Texas adult DWI arrests: 94,236
2016 Texas adult DWI arrests: 62,216 

Also, arrests for "drunkenness" (public intoxication?): 

2010: 130,564
2016: 64,120 

And as you know, traffic ticket numbers have significantly declined. 

For that matter, on "all other" offenses, excluding traffic: 

2010: 320,492
2016: 225,924 

So, ... I have to wonder if the DWI reductions are part of broader trends involving alcohol, as implied by reductions in drunkenness, part of a trend in traffic enforcement, as implied by the reduction in overall traffic tickets, part of a more generalized crime reduction, as implied by the reduction in the "all other" category, or, as you imply (and as I've suggested before), maybe it's a policy shift in part reacting to excessive surcharges, as some Texas prosecutors and judges have suggested. Or none of these things. Or all of them, and more. ¿Quien sabe? 

But you're 100% right, that's a big reduction, and one of which the press and the public are largely unaware.

Big picture: Traffic fatalities in Texas remained more or less level over this period, even as the population boomed and DWI arrests dropped more than a third. So there hasn't been any notable public safety reduction from the decline in traffic and DWI enforcement. Indeed, as I implied at the end of my reaction to the commenter, it appears hardly anyone has noticed or minded at all, except the probation directors and criminal-defense lawyers whose revenue plunged with the drop in cases.

* While 2017 data is out for Texas courts, we haven't seen data more recently than FY 2016 (which ended 21 months ago) on either arrests (DPS) or prison/parole/probation systems (TDCJ). Hard to understand why the OCA can get its annual statistical data from a decentralized court system out more promptly, but for DPS and TDCJ , annualized data is nearly a year old when they finally release it. State political leaders should care about such delays. It's impossible to manage what one cannot measure.

Zero tolerance makes zero sense, and other stories

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

Learning the ropes
Politico ran a nice feature on Nueces County DA Mark Gonzalez, focusing on his much-ballyhooed "biker gang" connections.

Proponents of revenge-porn restrictions must face 1A contradictions
Houston attorney Mark Bennett picks apart a forthcoming law review article trying to salvage a legal justification for Texas' anti-revenge porn law. Prosecutors and legislators hoping to rewrite the law after the Texas Court of Criminal Appeals inevitably strikes it down on First Amendment grounds should/must suck up and solicit Bennett's advice. Ignoring him in 2015 is what got them in this mess. And they should be prepared: for reasons demonstrated in the above-linked blog post, his advice may well be that they simply can't get where they hope to go.

Zero tolerance makes zero sense
I thought zero-tolerance policing was fading out of style, but Austin PD announced they'd focus a zero-tolerance approach toward petty offenses in an East Austin neighborhood in response to complaints. They referred to it as a "special tactic," but there's nothing special about it. Really, it's sort of old hat.

Both R and D Bexar DA candidates back needle exchange
The needle exchange pilot in San Antonio, discussed here, not only has the support of the outgoing District Attorney, but also "the two candidates seeking to replace him in November," reported the Express-News. Said the Republican DA candidate, Tylden Schaeffer, “Distributing clean needles to addicts saves lives, saves money, and prevents the spread of deadly diseases. Done properly, by those with the right intentions, such a program should not cause more people to use and abuse drugs. I would allow a bona fide program to operate.” Schaeffer's position coincides with the Republican-controlled House of Representatives, which in 2015 approved needle-exchange operations statewide if they didn't use government money. (The bill never received a hearing in the Texas Senate.) Top state leadership has been consistently cool to harm-reduction measures like needle exchange, but an increasing number of lower-level GOP officials have now publicly supported them.

Why conservative should lead
The former head of the Texas Association of Business makes the case why conservatives should lead on justice reform.

Feds take cash from nurse destined for medical clinic, hold it hostage for liability waiver
A sympathetic asset-forfeiture victim from Katy challenges Customs and Border Protection policy of demanding victims hold the agency harmless before returning their money.

Heat-litigation settlement adds pressure on Texas to decarcerate

In response to federal heat litigation, reported Gaby Banks at the Houston Chronicle, "Bryan Collier, executive director of the Texas prison system, is planning to relocate at-risk prisoners at 75 uncooled units to 29 prisons already equipped with air conditioning, according to two lawmakers briefed on the plan." A settlement will be reached this week over cooling inmates at the Pack Unit, Banks reported, but:

Other inmates could also benefit. Even before negotiating a deal, Texas prison officials began looking to move tens of thousands of vulnerable inmates into cooler quarters, perhaps to avert a swarm of additional lawsuits from other prisons.

“I’m not sure it would have happened without a federal lawsuit,” said state Sen. John Whitmire, D-Houston, chair of the Texas Senate's corrections committee. “It’s an attitude among the public and the Legislature, which speaks for the public, that we don’t want to spend money on people who are murderers and rapists.”

The 2014 suit filed by the Pack inmates challenged the deadly hot conditions inside the rural prison, saying they violated constitutional protections against cruel and unusual punishment. U.S. District Judge Keith P. Ellison has already concluded the state showed “deliberate indifference” to inmate conditions.

Sen. Whitmire has been making remarks like that for years on this topic, which probably didn't hurt the plaintiff's case that the indifference toward heat-related deaths was "deliberate."

But now, the federal courts have mooted legislative and for that matter public opinions. The state just has to pay for A/C or other cooling measures for various, vulnerable prisoner populations including the aged and infirm.

All of this was predictable. After the 5th Circuit said TDCJ could be sued, I'd opined that, "Grits expects TDCJ to ultimately lose the pending heat litigation and for the Legislature to eventually find itself forced to implement significant mitigation measures to reduce heat exposure of inmates and guards. It won't be popular but, if the 5th Circuit rules like they did in Louisiana, they won't have a choice." Now, that's exactly what happened.

The Lege is already spending $3.4 billion per year to house Texas prisoners. And despite beginning the 86th session facing billions of dollars of red ink, they'll now have to spend more per prisoner to pay to cool so many of them.

This puts even greater pressure on the Legislature to reduce prisoner populations and close more units. With crime declining, and public support for decarceration reforms on the rise, the cost of continuing to incarcerate Texans in the same numbers we did when crime was high makes little sense on its face. That goes double if the state must now pay to air condition a significant proportion of its 104 prison units. And it must.

Plummeting probation numbers leave fewer Texans under corrections control than nationally

Grits recently calculated the ten-year change in rates for the proportion of adults under control of the correctional system in Texas from 2008 to 2018, defined as everyone in prison, in jail, on probation and on parole, comparing that total to the total adult population. Texas' rate of people under government-control was one-in-22 adults in '08, compared to one-in-41 in 2018.

Let's revisit the question after the Washington Post publishing a similar analysis using national data for the period 2006-2016. According to them "In 2016, 1 in 38 adults were under one of these forms of “correctional supervision”; 10 years earlier, the figure was 1 out of every 31."

By these lights, Texans overall are supervised in 2018 at slightly lower rates than the 2016 national average. That surprised me.

How could that be? Texas' prison population remains the largest in the country. And parole numbers grew slightly over this period (Texas releases nearly 70,000 inmates per year).

That means the big reductions have come on the probation rolls, and to a much lesser extent, at county jails. By the numbers:

In 2008, the total probation population in Texas, felony and misdemeanor, stood at 429,689, according to TDCJ's annual statistical report.  Earlier this year, a TDCJ legislative handout put the number at 232,278, representing an astonishing 46 percent reduction!

Jail numbers also declined, though far less dramatically. On March 1, 2008, the statewide jail population was 69,397. On March 1st of this year it was 64,537. So just a seven percent reduction, which was entirely offset by an increase in the number of parolees being supervised.

Notably, most of the change in probation numbers is relatively recent. After a step down in the total cohort of probationers following reform measures passed in 2007, their numbers remained relatively high: In 2016, according to TDCJ, the total number of felony and misdemeanor probationers was 374,980. So that's a 38 percent drop in the last two years!

Grits cannot explain the plummeting numbers from 2016 to 2018 - certainly I can't think of any change in state policy which would justify it - but the fact of it helps clarify many political dynamics surrounding decarceration reforms.

In recent years, the most vocal opponents of sentencing reform in Texas have been probation directors, who fear that shifting non-violent offenses from a felony to a misdemeanor will reduce their funding. That's because they receive more money for supervising felons than misdemeanants, and felony probation generally lasts longer.

But Grits had underestimated the extent to which probation departments were feeling the squeeze. They survive on probationer fees and a per-probationer stipend from the state. So reducing numbers means reducing revenue. If their probationer numbers really dropped 38 percent in two years, then so did their budgets. No wonder they're in a panic about their money!

This news doesn't justify probation directors' regressive stances, but it explains some of the self interest behind them. And perhaps it will help state leaders put probation directors' advocacy for tough drug penalties in context as more a plea for budget relief than for public safety.

MORE:

Theft reductions explain much of probation decline

On Twitter, Doug Smith from the Texas Criminal Justice Coalition offered this explanation for the reduction:

It's a decline in misdemeanor placements. Felony placements are up slightly 2016-2018. Over past 10 years, felony placements ↓ 8% and misdemeanors ↓ 25%. Index crime rate ↓ 29% over same period, so felony placements should be lower, but possession cases up 30%+.

Digging a little deeper, much of the decline in misdemeanor probation appears to stem from reductions in theft cases, a trend made more pronounced when the Legislature in 2015 adjusted property-theft thresholds to account for inflation. According to the Office of Court Administration's Annual Statistical Report for FY 2017, "The number of new misdemeanor theft cases filed [in FY '17] fell 28 percent from the previous year and was the lowest number filed in at least 30 years."

An accompanying chart (p. 27 of the pdf) showed misdemeanor theft charges maxxed out in Texas in 2004 at >120,000, but came in at less than a third of that (38,377) last year. By contrast, "The number of new misdemeanor drug cases filed [ed. note: almost all marijuana possession cases] increased 1 percent from the previous year, reaching a new peak in filings in this category."

In the five years ending in 2017, misdemeanor theft filings overall declined by 41 percent. This trend was led by a 76 percent reduction in "theft by check" charges. The theft-by-check part of that trend is technologically driven, but the decline in theft charges exceeds the amount which can be explained by that reduction. Texas has a larger population that's simply accused of stealing at much lower rates than in years past.

Notably, this has been a period when many types of petty criminal cases in Texas have dropped like a stone. The number of traffic and parking tickets issued, for example, maxxed out in 2006 at 12.1 million, declining more than 50 percent to 5.5 million last year. Non-traffic citations declined from 2.1 million to 1.1 million over the same stretch (p. 31 of the pdf).

Nobody has been able to fully explain that traffic-ticket drop, which occurred across agencies and jurisdictions, seemingly without any coordinated effort.

But other types of cases have fallen, too. The number of new juvenile cases of all types maxxed out in 2008 at just more than 53,000 and has fallen to 29,153 last year (p. 33 of the pdf). Led by a reduction in truancy-related cases following legislative reforms, all non-traffic categories of Class C tickets given to juveniles declined radically over the last five years.

So, as Doug described, Texas has just gone through an era when crime declined quite a lot, and the number of case filings - except for drug cases, which accounted for 32 percent of felony charges in 2017 and 21 percent of misdemeanors (p. 26 of the pdf) - has mostly gone down with it.

Grits' conclusion from these data: The failed War on Drugs is propping up mass incarceration in Texas. That's why Texas probation directors oppose right-sizing penalties for low-level drug possession. That's the only growth-area in their business.

Remembering how truly terrible Ann Richards was on criminal justice

On Twitter, Texas Observer editor Forrest Wilder came up with this blast from the past: An old Ann Richards tuff-on-crime commercial from 1994 in which she touts plans to expand prisons by 75,000 beds and brags of reducing parole rates by 2/3. Go watch it.

These policies weren't just a bad idea with 20/20 hindsight; you could tell they were a bad idea at the time. Less than two years after that commercial ran, Robert Draper had a feature in Texas Monthly in which the lede featured Ann Richards' prison chief, Andy Collins, declaring the prison expansion was "the stupidest thing the state of Texas has ever done." To be clear, that's a pretty high bar!

"I mean, look who was behind it all," Collins told him. "Prosecutors, cops, politicians—all of them with a self-serving agenda."

Draper blamed "The media and the politicians," declaring, "So eager were they to sate the public’s bloodlust for locking up criminals and throwing away the key that they helped create a climate of hysteria in which corruption could flourish."

It's almost impossible to overstate how deep, at the time, the bipartisan consensus was surrounding exactly the message Richards is touting. Not only was it the zeitgeist of the moment, there was also a political calculation. Dems naively saw prison construction as a rural jobs program in the WPA mode. In addition, Dem strategists viewed Sheriffs and District Attorneys as their bulwark against a complete GOP takeover in small-town Texas and so deferred to them completely on policy. (Of course, the GOP takeover happened anyway.)

It's not that there were no critics back in the mid-'90s, but they were disempowered and disorganized: A few Ron Paul libertarians on the right and a few black Democrats on the fringes of the party. Mainstream black Dems mostly supported Richards' initiative at the time, just as they supported Clinton's 1994 crime bill.

The debates in 2018 surrounding police accountability, prosecutors elections, or mass incarceration could not have and did not occur back then. By contrast, a candidate producing that ad today would be openly mocked. And rightly so.

Houston's budget busting police budget, crime lab glitches in Dallas, and other stories

Here are a few odds and ends to clear Grits' browser tabs of items which deserve readers' attention, even if I haven't gotten around to blogging about them:

Crime lab DNA glitches delaying Dallas cases
In Dallas, reported WFAA, a capital murder case was delayed "because of a recent issue with county’s new DNA testing kits, which proved to be defective. The county crime lab suspended DNA testing in cases set for trial. The lab plans to restart testing in September with new testing kits."

Most Twin Peaks biker cases soon to be dismissed
Special prosecutors in the Twin Peaks biker cases in McLennan County dismissed one high-profile case, reported the Waco Tribune Herald, with many more likely to come soon:

In a status conference Friday, Assistant District Attorney Amanda Dillon told Judge Ralph Strother that the DA’s office likely will dismiss all but 25 to 30 cases during a re-evaluation of the Twin Peaks cases. Many of those dismissals could come this week, she said.

What a mess! County officials should get ready for a wave of civil litigation and start socking away money for a fat settlement. Thanks, Abel Reyna! BTW, Tommy Witherspoon at the Tribune-Herald is an old-school courthouse reporter of the highest order and a Texas state treasure. Though state and national media mostly neglected the story (frankly, because nobody wants to go to Waco), his coverage has been consistent and consistently amazing. Whoever hands out journalism awards needs to give him a few.

Email: Prosecutor in Alfred Brown case knew of withheld evidence
In Harris County, prosecutor Dan Rizzo allegedly perjured himself about exculpatory evidence withheld from the defense in Alfred Brown's capital murder trial, Houston Chronicle columnist Lisa Falkenberg reported. He denies it, but an email was discovered proving he knew of phone records he said he'd never received (later found in a police officer's garage, leading to the re-opening of Brown's case in 2015). The local defense bar at one point suggested Rizzo to be prosecuted for attempted murder (!), and calls for stripping his bar license have already begun. Rizzo could be the first Texas prosecutor not long-since retired from the job (a la Anderson and Sebesta) to lose his license over prosecutorial misconduct.

Houston's budget busting police budget
Mayor Sylvester Turner wants voters to bust the city's revenue cap to pay for public safety. However, we're at a moment in history when crime is at historic lows and the demands on law enforcement are rapidly evolving. Just hiring more warm bodies to throw at an endless stream of 911 calls and false burglar alarms on patrol wouldn't be worth it. Rather, investments in the civilian side - crime labs, crime-scene techs, evidence management, etc. - make a lot more sense. When Houston's chief, Art Acevedo, was in Austin, he focused almost exclusively on bolstering patrol in his budget requests while our crime lab failed under his watch and all civilian functions basically withered on the vine. Houston shouldn't make the same mistake.

PEP a reentry model
In a Dallas Morning News op ed, a Prison Entrepreneurship Program alum touts its reentry benefits. The Lege would do well to identify what they're doing that's working (especially the reentry supports) and scale up!

What happens when you cut prison spending without reducing prisoner numbers?
A feature in USA Today explored the relationship between corrections budget cuts and prison riots.

District Attorneys behaving badly
Two stories from other states that may give our Texas reporters some good ideas: 1) The Marshall Project has a feature on how the DA in Manhattan prosecutes the poor, and 2) the Nashville Scene has a story about how their DA's Association killed drug-reform legislation in Tennessee - not because they opposed the policy but because they didn't get extra resources they wanted in exchange for going along with it. See also related recent coverage about prosecutor associations' regressive lobbying activities from Josie Duffy Rice at In Justice Today.

The Great US Crime Decline
Check out a CNN segment featuring Fareed Zakharia and Adam Gopnik on the Great US Crime Decline.

One in three murder charges in TX a capital case

Now that the new Annual Statistical Report for the Texas judiciary is out, let's take a quick look at data on capital murder cases in Texas from FY 2017. (See p. 111 of the linked pdf from the Office of Court Administration.)

Texas prosecutors filed capital-murder charges in 446 cases last year, and gained capital convictions 249 times, including 162 by plea bargain and 74 by jury trial.*

Almost all of these resulted in LWOP sentences. The OCA reported that prosecutors announced plans to seek the death penalty in only three cases in 2017.

Six defendants were acquitted of capital murder at trial last year. Charges were dismissed in another 84 cases. (That'd be an interesting subset to review - that's a pretty high number.)

There were 897 capital murder cases pending statewide at the end of the year.

By comparison, there were 854 "regular" murder charges filed in 2017, with prosecutors generating 536 convictions. In addition, 31 murder defendants were acquitted at trial, with another 187 having charges dismissed.

One thought from these data: If prosecutors filed capital murder 446 times in 2017 and murder 854 times, then capital charges are not being reserved for the "worst of the worst." Not unless one believes one in three killers deserves that moniker. This overcharging is fueling an unnecessary shortage of capital-qualified trial attorneys statewide. While some have seen that shortage as a reason to reduce qualifications for capital-qualified attorneys, to me the better solution is for prosecutors to rein in this overcharging penchant and only use capital charges in truly exceptional cases.

*Obviously, these aren't all the same cases. Few capital murder cases are resolved within 12 months, and many if not most convictions were from cases filed in previous years. I'm analyzing overall patterns here, not claiming the cases in the "indicted" column are the same as those "convicted" in the same year.

Import of recanted informant testimony never evaluated in capital case

In the latest Reasonably Suspicious podcast, my co-host, Texas Defender Service Executive Director Mandy Marzullo, described the case of Juan Castillo, who is scheduled for execution on May 16. His conviction was based in part on informant testimony which was later recanted, but the courts have never meaningfully evaluated how this allegedly false testimony affected Castillo's case. Since there has only been sparse coverage of these events, I pulled this segment out as a stand-alone. Give it a listen:


Find a transcript of our conversation below the jump. MORE: From the indefatigable Keri Blakinger. AND MORE (5/7): See a plea for clemency for Mr. Castillo published in the SA Express News.

Most felony drug convictions in Texas get incarceration as a sentence

The new Annual Statistical Report on the Texas Judiciary from the Office of Court Administration is out.

Grits took a quick look at the data for felony drug possession cases in Texas District Courts. On. p. 112 we see that District Judges in Texas generated just more than 25,000 new felony drug possession convictions in 2017. Of those, nearly all were sentenced to incarceration of some sort:

Sentences Related to Felony Drug-Possession Convictions in Texas, 2017 

Prison: 5,281
State Jail: 7,243*
Local Jail: 8,554
Probation/Community Supervision: 3,859
Shock probation: 15
Fine Only: 58
Other: 410

Only 15 percent of drug-possession convictions resulted in a probated sentence in 2017, according to these data. (Clarification: these sentencing data are only for convictions and do not include cases resulting in deferred adjudication. See the comments for a discussion.)

In an additional 8,557 drug cases, a defendant with a prior drug conviction was revoked to prison in 2017. So probation revocations accounted for about 40 percent of drug offenders entering TDCJ last year.

*State Jails are Texas' euphemism for prisons which hold low-level offenders who committed what are known in the Penal Code as "State Jail Felonies," the equivalent of a 4th degree felony. The maximum sentence is 2 years, most offenders stay just 6-9 months, and there is no supervision upon release. Offenders who've been in state jails notoriously have the highest recidivism rates of all Texas prisoners.