Harris bail ruling released, the problem with prisoner copays, and other stories

With journalists being shot, toddlers being snatched from their mothers' arms and required to fend for themselves in court, and a Supreme Court seat in play that will be filled by the Toddler-Snatcher-In-Chief, it's hard even for your myopic correspondent to focus attention on the Texas state and local criminal-justice issues that this blog primarily covers.

But lots of smart people much closer to the action are thinking and talking about those topics. So, taking my cue from the folks at the Capital Gazette who put out their paper the day after five colleagues were murdered, Grits will focus on my own job and give y'all the usual weekend roundup of criminal-justice topics, even if a big part of me would prefer to rant about those national stories.

Harris County bail ruling released
Yesterday, federal District Judge Lee Rosenthal released her revised ruling in the Harris County bail case, the Houston Chronicle reported. I can't find a copy online yet, but this is an important moment: Now, every county in Texas is on notice that they must give individualized bail hearings and can't simply rely on a bail schedule to decide whom to release. Most counties in the state use some version of the same system, so look for county-by-county chaos resulting in either a new legislative framework created for pretrial release in 2019, or else much more litigation as policies are changed through the federal courts county by county. Harris County has spent nearly $7 million in attorneys fees defending their unconstitutional system.

Reyna fires ADA for cooperating with FBI
In McLennan County, outgoing District Atttorney Abel Reyna fired one of his ADAs for allegedly sharing information with FBI investigators. Apparently in Waco, as at the White House these days, FBI investigators are now considered the enemy. We live in a weird historical moment, people, this is not normal.

DPS conflating traffic tickets and immigration enforcement
Texas DPS for the past two years has been sharing traffic ticket data with immigration authorities "to make it easier for federal authorities to deport those they suspect of being in the country illegally," reported the Houston Chronicle recently.

The problem with prisoner copays
Vice News has a story taking on the problem of requiring copayments from indigent Texas prisoners to receive medical services.

Deaths spur federal litigation vs. Galveston jail
The Galveston County Jail faces new federal litigation alleging that several recent inmate deaths resulted from sub-par medical care.

Commissary theft
A former Milam County Sheriff's Office captain has been convicted of stealing from the inmate commissary fund. She received probation, must pay $41,000 in restitution, and another $20K in fines and associated costs.

Picture this
Here's a nice story on Texas Court of Criminal Appeals Judge Bert Richardson's semi-pro photography hobby.

Asset forfeiture poster child
This story out of Indiana is a competitor for the all-time asset forfeiture poster child: A guy sells drugs for $225 and the state takes his Land Rover.

From the academy
Here are several interesting looking academic articles for Grits' reading pile which may also interest readers:

• The Innocence Movement and Misdemeanors
• Cracking Graham: Police department policy and excessive force
• What is the place of corrective justice in criminal law
• Safety from plea bargains' hazards
• Digital surveillance and preventive policing

Should the government give high-risk offenders gaming systems to reduce crime?

Regular readers will recall that Lt. Gov. Dan Patrick responded to the school shooting in Santa Fe by suggesting that Texas eliminate subsidies aimed at luring video game companies to the state. Grits responded by disputing the purported link between video-game violence and violent crime.

The more I think about it, though, I wonder if video games might be part of a solution to violent crime?

Here's an outside-the-box (but not the Xbox) suggestion for reducing crime that's cheaper than incarceration and gives authorities a better tool to help offenders comply with probation: Give young people at high risk of committing serious crimes gaming systems as part of probation terms and make taking them away a punishment for violating conditions.

Several different strands of thought led me to this idea, which I've not seen proposed elsewhere.

In recent years, we've seen pilot programs where law enforcement identified the people at the highest risk of committing violent crime and simply paid them not to. And it seems to work! Some of the methods for identifying the most high-risk folk can be pretty sophisticated.

At the same time, we've seen studies showing that youth playing violent video games (or really, any video games) tend to commit less crime because of the voluntary incapacitation effect: The kid playing Grand Theft Auto for hours doesn't have time to be out stealing my car.

(On Twitter, John Pfaff recently pointed to a paper showing a similar voluntary incapacitation effect related to violent movies.)

My personal belief is that the rise of video games and online entertainment caused a much greater proportion of the crime decline witnessed in the past quarter century than most observers have considered.

Young males through about their mid-to-late twenties are the highest risk population group for committing crime. This is also the group with whom video games are most popular.

So what if we combined these observations to create a correctional strategy? What if high-risk young male offenders on probation were given a PlayStation or Xbox and a few popular games when they went on supervision, and allowed to keep the equipment if they successfully completed their probation term?

I see several benefits:

1) The incapacitation effect: The more time these youth spend playing video games, the less likelihood they'll get into trouble.

2) Incentive for good behavior: Just like payment is a positive incentive not to commit crime in the pilot programs described above, access to a video game station is a significant incentive not break the law or violate probation rules, as well as to complete probation.

3) Tool to address rules violations: Similarly, taking access to the video game system away is a significant additional negative incentive, a tool that could be used to punish technical non-compliance (half of all revocations to prison from probation in Texas are for technical violations).

4) Economics: Gaming systems are cheaper than paying a monthly stipend, as in the above-cited examples, and the project could be scaled up more easily.

The complaint would come from people who say, "My kids don't have a Playstation, why should the government buy one for criminals?" But since the answer is so firmly rooted in public-safety goals - particularly if the tactic were reserved for the most serious, high-risk probationers - IMO it could be justified. We spend a lot of money already on these high-risk populations.

The same parental controls that keep young kids from accessing inappropriate stuff could be used to limit improper use of the system (contacting victims, etc.), and of course improper use could be punished by taking it away.

IMO this could reduce crime among the population eligible for the program and make it easier to get people to comply with their probation terms. The cost of each system is significant (~$300 + games), but a lot less than incarceration, and I bet under such circumstances the state could get a bulk-purchase discount.

This is a brainstorming post, not a fully formed policy suggestion. But as cost-effective public safety solutions go, this idea seems to check a lot of the boxes.

Abbott's veto of Good Samaritan legislation responsible for hundreds of preventable overdose deaths

Texas legislators continue to discuss the wrong problems when it comes to addiction and overdoses, focusing on opiod overdoses and fentanyl - which aren't as prominent here as in other parts of the country - when the bigger problem in Texas is meth. (Most fentanyl deaths involve mixing it with heroin, and the black-tar heroin sold in Texas and California is too low purity to mix with fentanyl.) 

Digging into the data, Texas' drug addiction problem is less deadly than in the hardest-hit parts of the country, and more focused on speed than smack. Nationwide, heroin overdoses now outnumber gun homicides as cause of death, but in Texas, murders continue to slightly outpace the total number of overdose deaths.

IMO this obfuscation of state-level trends is happening because legislators are relying on law enforcement as experts instead of addiction researchers and public health professionals. Texas DPS and other agencies are picking up national memes and touting them, even if they don't track with Texas' experience.

That said, I was pleased to see that the committee is considering one solution that Grits worked hard on a couple of sessions back: the Good Samaritan law Gov. Abbott vetoed at the end of his first session as Governor in 2015. Reported the Austin Statesman:

[State Rep. Four] Price said it’s possible lawmakers could craft a new good Samaritan law, which protects people who call police to report a drug overdose from prosecution for some offenses. A similar bill passed the House and Senate with wide support in 2015, but was vetoed by Gov. Greg Abbott because it did not “include adequate protections to prevent its misuse by habitual drug abusers and drug dealers.” 

New data presented by the Texas Department of State Health Services on Tuesday showed similar laws in other states have resulted in as much as a 15 percent drop in opioid overdoses in the past five years, despite nationwide increases. The laws also do not appear to increase the number of drug users, the data shows. 

“It indicates that there is some effectiveness if implemented and crafted effectively,” Price said. “That is something we should continue to review.”

Keep in mind that there were 1,254 overdose deaths in Texas in 2016 - 715 from meth and 539 from heroin. If a Good Samaritan law would have reduced that number by 15 percent, that means 188 people died that year because of Governor Abbott's ill-considered veto! That means hundreds of  lives would have been saved by now if Gov. Abbott had signed the law in 2015.

IMO, vetoing the Good Samaritan bill was one of Greg Abbott's worst decisions as Governor.

Exploring areas of #cjreform agreement between Texas Dem and GOP state party platforms

So, the results of Just Liberty's "Justice Needs a Platform" campaign are in and - having adumbrated reform measures in the criminal-justice sections of both the Republican and Democratic Texas state party platforms, including separate podcasts focused on reform planks proposed at each convention - let's take a look at areas where the parties agree.

 Before we do, though, just to get you in the mood, give a listen to Just Liberty's jingle created promote #cjreform in Texas' major-party platforms. (After the last couple of weeks, this ditty has been running through Grits' head near constantly.)

Having now established the proper atmosphere, here are the major areas where agreement between the two parties points to possible #cjreform legislation.

Raise the Age

Both parties agreed that Texas should raise the age at which youth are prosecuted as adults from 17 to 18 years old. Texas is one of only four remaining states that charge 17-year-olds as adults. When a couple of members of the GOP platform committee voiced opposition to the idea, another member I'd never met shut them down with references to brain science and research on child development. It was an impressive moment, because some of my Democratic friends like to claim that the GOP reflexively opposes science. On this topic, though, the platform committee voted pretty overwhelmingly to better align policy with scientific thought. The Texas House has twice now passed measures to make this change, with the Lt. Governor and the senate so far blocking it. Such explicit, bipartisan support could be a game changer.

Marijuana policy
Here's an irony: At the Texas Legislature, the only person ever to propose marijuana legalization was Republican state Rep. David Simpson, who wanted to "treat it like tomatoes." The furthest a Democrat has gone is state Rep. Joe Moody's bill proposed the last two sessions to make pot possession a civil offense punishable with a ticket. In the party platforms, though, those positions are reversed. Democrats favor full-blown marijuana legalization (they're already spending the tax money!), while Republicans essentially endorsed Moody's bill: "We support a change in the law to make it a civil, and not a criminal, offense for legal adults only to possess one ounce or less of marijuana for personal use, punishable by a fine of up to $100, but without jail time." On this topic, Just Liberty followed the lead of the indispensable Heather Fazio from Texans for Responsible Marijuana Policy, who has been pushing for these platform planks since 2014. The GOP also approved a platform plank promoting expanding the use of medical marijuana to more ailments and called on Congress to change it from a Schedule 1 to a Schedule 2 drug. (Your correspondent isn't completely clear on the difference, but as I understand it the change would allow more medical research.)

Cease arrests for Class C misdemeanors
Both Texas state political parties included platform planks suggesting law enforcement should stop arresting people for Class C misdemeanors for which the punishment is only a fine, not jail time. On the GOP side, the plank read simply, "We call upon the Texas Legislature to end the practice of jailing individuals for offenses for which jail is not an allowable consequence under the law." (Under Texas law, those are Class C misdemeanors; Class Bs are punishable by up to 6 months in jail.) The Democratic version calls for, "legislation that requires people suspected of minor, non-violent misdemeanors be issued summons to appear in court rather than placed under arrest," and ending "the practice of arresting individuals for offenses that call for a citation." Sandra Bland's case was prominently discussed in both party's discussions on these planks. Readers may recall that a similar provision was removed from the "Sandra Bland Act" passed in 2017. During debates over that bill, it came out that a whopping 11 percent of all arrests in Harris County are for Class C misdemeanors, a proportion possibly boosted because of intake screening practices by the Harris County DA. State Reps James White and Garnet Coleman filed legislation to make this change last time, along with Senators John Whitmire and Konni Burton. This could be a bipartisan bill that comes back and passes.

Eliminate the Driver Responsibility Program
For the first time, planks calling to get rid of Texas' Driver Responsibility Program made it into both party platforms. The GOP platform reads, "We call upon the Texas Legislature to abolish the Driver Responsibility Program and immediately restore the driver licenses of the citizens whose licenses were suspended by the DRP and to cancel their debt." Sounds good to me, how about you? Democrats, by contrast, focused on the issue in the health care section, calling for "stabilizing trauma center funding by repealing the Driver Responsibility Program fees, which many Texans cannot afford and never pay, and replacing the funding other budgetary means."

Require criminal conviction to seize assets
Both parties endorsed eliminating civil asset forfeiture, requiring a criminal conviction beyond a reasonable doubt before the government can seize someone's property. This issue seemed to have momentum in 2017, but was mainly pushed by conservatives and embraced by Republicans. Its inclusion in the Democratic platform may help to give it a little extra bipartisan oomph.

Require written or recorded consent for roadside searches
Both parties endorsed legislation to require officers to get written consent to search a motor vehicle if they don't have probable cause and consent is not recorded by a body-or-dashboard-camera. Essentially similar legislation passed in 2001 and was vetoed by then-Gov. Perry, who also vetoed weaker legislation on the same topic in 2005. Now, with a different governor and bipartisan support, this common-sense policy may have new legs. Honestly, in the wake of the Sandra Bland episode and given the broad-and-deep array of 21st century police reform proposals our there, this idea that seemed (and was) controversial back in 2001 today looks almost like a no-brainer and relatively small potatoes. The proliferation of cameras - both police cameras and the public's - certainly has altered the terms of debate on the topic. But accountability at roadside searches remains important and this is still a good idea.

Militarization of police
Both platforms suggested restricting militarization of police through the federal government's 1033 program that provides military surplus equipment to domestic, civilian law enforcement agencies. The Democrats want to "reject" the "continued receipt" of such equipment. The GOP platform called for transparency including new "reporting and training standards" and a requirement that the governing body of any law enforcement agency formally vote to accept 1033 program equipment. Transparency is always helpful, and "training" may get to an Achilles heel of the program: Many local agencies don't have personnel trained on specialized military equipment they receive, so it falls into disuse. If agencies must report what they have, demonstrate that they're training on the equipment they get, and submit 1033-equipment requests to their city council or commissioners court, that would eliminate a lot of the BS.

End debtors prisons
This one may be my personal favorite: Remarkably, both parties embraced a reform that would essentially eliminate the use of debtors-prison practices for most criminal-justice related debt, relying on regular commercial collections processes, instead, and essentially ending "warrant roundup" practices. The GOP platform called for the Lege to "enact laws that end the incarceration of individuals because they cannot pay tickets, fines, and fees for Class C Misdemeanors, including traffic." The Democrats wouldn't limit the idea to Class Cs: They supported, "ending the practice of sending poor people to jail or prison for inability to pay fines and court costs." Between those two stances, there's definitely enough overlap to get a bill passed. House Corrections Chairman James White, an East Texas Republican, filed essentially this legislation last session. (Thanks to former House Corrections Chairman Jerry Madden for making sure it got into the platform on the GOP side.)

* * *

Those are the major areas where #cjreform platform planks for Texas' two major political parties include overlap. There are still areas of disagreement, certainly (e.g., they're diametrically opposed on capital punishment), and the Democratic platform articulates a more aggressive reform agenda than does the GOP on more topics (e.g., Dems want to make crime labs independent, and explicitly called to "reduce mass incarceration" and "end racial profiling.") But there are enough spheres of concurrence to identify areas primed for major, bipartisan legislative pushes with a good chance to succeed.

To be clear, party platforms typically aren't decisive in legislative votes. Most #cjreform bills that ever passed in Texas since the turn of the century weren't included in either party's platform document. But as markers for where the two parties stand on the issues, these common threads certainly point to practical possibilities for bipartisan collaboration. That, plus identifying allies in both parties willing to join us in pushing these reforms, really were all Just Liberty could ask for from this campaign.

TX Dem platform prioritizes #cjreform

Having detailed #cjreform planks added to the Texas state GOP platform, let's now turn to the Democratic platform approved this week in Fort Worth. Criminal-justice reform was the first section in the final platform document (see here), an obeisance not afforded the subject in many a year among Democratic opinion leaders.

The differences in the R and D platforms in large part stemmed from differences in process. The Republican party platform is a completely grassroots affair, with resolutions bubbling up from the precinct-convention level and the final product looking like a hodge-podge list of unrelated and frequently disconnected suggestions.

By contrast, the Democratic platform committee re-wrote the #cjreform section from scratch. So it reads more coherently and includes fewer jarring non-sequiturs than some of the platform planks on the R side. But it's also less of a direct expression of grassroots opinion within the party, for whatever that's worth.

In all, some version of ten of Just Liberty's proposed platform planks ended up in the GOP platform, and about 15, in some form, made it in on the D side.

In many ways, though, the Dem platform goes further than Just Liberty's resolutions. It  more systematically gives candidates at different levels - justices of the peace, constables, sheriffs, prosecutors, and judges - issues they could potentially run on as Democrats. And it's a pretty good list, much better developed than the less-reform-minded 2016 version. The various subsection titles include:

• Bail reform
• Re-entry
• Mass incarceration
• School-to-prison pipeline
• Juvenile justice
• Policing and improving community partnerships
• Eliminating private prisons
• Criminalizing intentional prosecutor misconduct

The reformist approach expressed in the Democratic platform is more comprehensive and fully developed than its GOP counterpart, but because of the party's seemingly permanent minority status, it's also perhaps less consequential.

Still, the Democratic platform had not significantly embraced a reform mindset on criminal-justice in years past. Now, they're suggesting cutting edge reforms and distinctly new approaches. For example, "Treating drug use as a public health challenge rather than a crime," and "Reducing possession of small amounts of controlled substances to a misdemeanor, even when it is a repeat offense."

They also endorsed, echoing a plank in the GOP platform, "Ending the practice of sending poor people to jail or prison for inability to pay fines or court costs."

Soon, Grits will follow up with a post detailing points of agreement between D and R platforms and speculating on prospects for bipartisan #cjreform in the 2019 Texas Legislature.

RELATED: Check out the special podcast Just Liberty put together to promote criminal-justice reform measures in the Texas Democratic Party platform.

Judges rubber stamping capital writs, warrants now required for cell-phone location data, managed-assigned-counsel systems still suck, and other stories

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

Austin admits police oversight system didn't do much
Grits has said for years that Austin's civilian review panel for police was more or less worthless as oversight. They make fine recommendations, but none of them are ever implemented, as the Texas Criminal Justice Coalition demonstrated in a report last year. Now, a city auditor's report has agreed, finding that none of the civilian review panel's recommendations under the old system were ever implemented. See coverage from the Austin Monitor.

Lawsuit: Austin PD failed to properly investigate sexual assault cases
See coverage from the Daily Beast. Putting a pin in this one to look at later. Given that Austin PD's DNA lab has already been shut down because they were performing the tests wrong, it's not hard to imagine some cases aren't aggressively pursued when they should be.

Bexar should reject calls for managed-assigned-counsel
The SA Express News editorial board argued that Bexar County needs to a) spend more on indigent defense but also b) spend more on oversight to make sure it's getting quality defense for the money it's spending. They should stop promoting the Managed Assigned Counsel program, which has been a disaster in Austin. What Bexar County needs is a full-blown public defender office, and not just for mental-health cases.

Harris County judges rubber stamp DA findings in capital writs
In 96 percent of state capital habeas cases since 1995, judges in Harris County simply adopted proposed findings of fact written by the prosecution, according to this analysis from the Houston Law Review. See this summary of the analysis compiled by The Open File.

Paxton sides against local GOP judges in bail litigation
Positioning himself opposite the Republican judges who've spent more than $6 million fighting bail reform in Harris County, Texas Attorney General Ken Paxton is seeking to have lawsuits dismissed which were filed by Harris County magistrates against the State Commission on Judicial Conduct after that agency had sanctioned them. The judges in Houston fighting bail reform are becoming increasingly isolated. The bail bond industry is nearly their only remaining ally, given that statewide elected officials like the Attorney General and the Texas Supreme Court Chief Justice haven't backed their play.

Settlement in pool party police assault
The girl who was famously slammed down by police at a McKinney pool party has entered into a settlement with the city, reported The Root. " According to the Fort Worth Star-Telegram, under the terms of the settlement, ... plaintiffs in the case, were awarded a total of $184,850 last month, with $148,850 of that amount going to" the principle victim. ALSO: The Statesman has the story of another high-profile civil rights suit against a police officer out of Mesquite who tazed a teenager in the groin in a situation where the boy ultimately died.

SCOTUS: Protect cell-phone location data with warrant requirement
I haven't had time yet to read the new Carpenter decision from the US Supreme Court on when law enforcement must get a warrant to access cell-phone location data and when they don't need one. But the fact that Orin Kerr is grumpy means I'm likely to like it. Regular readers may recall that Grits had previewed the case around Christmastime with a poetic homage.

'How does the warden sleep at night?'

The demotion of a warden and several other "ranking officers" in response to Keri Blakinger's reports in the Houston Chronicle on illegal quotas being applied to inmate discipline systems at multiple units has had Grits singing the opening verse to this tune from the Old Crow Medicine Show all morning. TDCJ has dismissed around 500 disciplinary cases that officers filed against inmates under these quota systems, and it's a safe bet there are more among them which were fabricated but will now never be adjudicated.

It's the thought of those never-to-be-unearthed, fabricated cases that's caused the chorus from the Old Crow Medicine Show to bounce around Grits' head all morning: "How does the warden sleep at night, after the long day's through? Does he toss and turn? Does his conscience burn? Is he a prisoner, too?"

Reversing mass incarceration brick by brick: Podcast features #cjreform planks proposed to the Texas Democratic Party platform

Having produced a special podcast promoting #cjreform planks in the Texas state GOP party platform, it's only fair that Just Liberty return the favor for the Dems.  Here's a discussion among Democrats and liberal reformers about justice-reform planks being proposed to the Democratic platform.

What are the key justice priorities for Democratic constituencies this year? Reform leaders say transparency and accountability for police misconduct, rolling back mass incarceration and the drug war, and eliminating regressive government policies that mainly harm the poor.

This special episode promotes reform planks proposed to the Texas state Democratic platform in 2018 via local precinct resolutions. It features original music and interviews with state Rep. Gene Wu, Austin Justice Coalition executive director Chas Moore, as well as Sukyi McMahon and Kathy Mitchell with Just Liberty.

Enjoy!

Going soft on crustacean crime?, or, Counting crimes: Texans can commit either 3, 7, 11, 13, or 16 different felonies with an oyster

A scene from the greatest oyster-
related crime in history.

How many felony offenses are there in Texas? How many angels can dance on the head of a pin?

Ultimately, nobody knows, but every once in a while somebody takes a shot at an estimate.

The latest such official guess on the number of Texas felonies comes from the Texas Legislative Council, best known for being the official drafters of bill language during Texas legislative sessions. They've produced their first report in five years to count the number of felonies in all of Texas law and compile an "inventory."

They came up with an estimate of 749 different felonies on the books statewide.

By contrast, the Board of Pardons and Paroles has an "Offense Severity" list - which they use to assign risk levels to potential parolees - that counts well over 2,500 felonies. Here's the current iteration.

Our pal Marc Levin from the Texas Public Policy Foundation a few years ago counted around 1,700 felonies in various codes, somewhat splitting the difference.

Why are there so many estimates?

Because what counts as a separate crime may depend on the eye of the holder, and distinctions are inevitably subsumed within whatever (inevitably somewhat arbitrary) nomenclature and categorizations which drive the analysis.

To think about this, let's consider oyster-related felonies. A few years ago, Politifact fact-checked a statement I'd made that there were eleven felonies in Texas you could commit with an oyster. They rated it "Mostly True," commenting, "He could have said 16." But three of them appeared to be duplicates, so the reporter estimated 13. Politifact also found a lawyer from the Parks and Wildlife Department who said there were, broadly, seven distinct oyster felonies.

(For more background, see, "Oyster-related crime and its absurdist consequences.")

Which leads us to ask, how many felonies can Texans commit with an oyster under the TLC's nomenclature? A measly 3!

What's going on? Has Texas suddenly gone soft on crustacean-related crime? How will the state respond to the threat of felonious bivalve behavior rising like a tide upon our shores? Will Texans soon find ourselves overrun by malicious mollusks, wicked whelks, or calumnious clams? Perhaps the Governor should respond with a DPS "surge" along the beaches on the Gulf?

Fear not! Two of the TLC's oyster categories are "certain oyster license offenses," and thus subsume multiple different violations which were spelled out in more detail in the other counts.

Indeed, when we speak of "license" violations, that gets us to the criminalization of regulatory violations, which are more common in the federal system but also something that occurs under Texas law.

Some of what's going on here may be explained by Texas' historical antipathy to business regulation. Nobody in the Legislature wants to create new government agencies or responsibilities, much less fund enforcement. So when business practices arise that they dislike, Texas legislators typically react by passing a criminal law that punishes business violators with the same sanctions faced by people who rape or rob.

Whether there are eleven felonies Texans can commit with an oyster ... Or sixteen. Or thirteen. Or seven. Or three ... matters less than the fact that there probably shouldn't be nearly so many criminal penalties related to shellfish at all.

District Attorneys aren't the right people to be prosecuting regulatory violations, so often they don't get prosecuted at all until somebody gets seriously hurt, which is pretty much the opposite of what prioritizing public safety should look like.

One of the criticisms of creating a civil penalty for low-level marijuana possession during the 2017 session was that Texas doesn't have civil penalties for anything, including license violations related to oyster harvesting. But to me, the substance of that criticism doesn't argue against a civil penalty for pot, but instead for reviewing how criminal law is used in Texas as a third-rate substitute for business regulation.

Regardless, the fact that well-intentioned, highly informed people come up with such widely disparate estimates on the number of felonies tells you there are literally, at this point, too many to count.

If you have ever wondered why the number of people prosecuted in the 21st century continued to rise long after crime declined in Texas, this proliferation of misplaced criminal laws is a contributing factor.

Meth a bigger problem than opiods in Texas

Responding to misplaced attention by Texas legislators and law-enforcement leaders on opiods, Grits had pointed out earlier this year that the problem with meth addiction and overdoses were actually worse. Politicians and the Texas media were responding to national stories about opiod-related overdoses and the rise of fentanyl as a recreational drug based mostly on problems in Northeastern and Midwestern states that didn't exactly apply to Texas.

Now, Todd Ackerman at the Houston Chronicle has produced the first MSM coverage I've seen acknowledging that fact. Here are the key data points from the story:

The Substance Abuse and Mental Health Services Administration estimated the number of Americans who used meth in the past month at 667,000 in 2016, the latest year for which statistics are available. That’s up from the 2008 low point of 314,000. 

At the Mexico-U.S. border, agents are seizing 10 to 20 times the amount they did a decade ago. In 2016 in Texas, DEA officials seized more than 45,000 items of meth, compared to less than 6,000 items of heroin. The lab that identifies the drugs does not provide the item’s overall weight, but a Houston DEA official said that 7.5:1 ratio is consistent with the amount of the two drugs they seize. 

Deaths, too, are on the rise. Nationally, nearly 6,000 people died from meth in 2015, a 255 percent increase from 2005, according to the Centers for Disease Control and Prevention. 

Texas’ numbers are no less unsettling. In 2016, meth killed 715 people in the state, compared to heroin’s 539. Another 8,238 meth users were taken to Texas health department-funded substance abuse treatment centers, compared to 8,238 heroin users. Texas poison centers received 320 calls for help involving meth and 254 for heroin. 

The Texas meth epidemic also appears intertwined with increases in sexually transmitted diseases, including HIV, according to Jane Maxwell, a University of Texas-Austin drug abuse researcher. She cites a 2015 CDC survey of HIV-positive homosexual men that found 86 percent of respondents in Houston and 91 percent in Dallas reported that they’d injected meth in the past 12 months. She said a recent state report on HIV trends shows such use by homosexual men is doubling HIV risk factors.

California, FWIW, faces a similar dynamic to Texas because their heroin market is dominated by "black tar" heroin that's not easily mixed with fentanyl.

In recent years, drug-possession arrests have been the only growth area for Texas prosecutions. As Grits reported recently, "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."

At the same time, we've militarized the border and sent so many state troopers down there that the locals feel overpoliced and the rest of the state has witnessed reduced DWI enforcement. So we're arresting more people for drug use, and still, more people are dying. The problem is getting worse.

From a policy perspective, whether the overdose increase stems from meth or opiods, these numbers tell us two things: 1) The War on Drugs is failing. Again. Still. As always. Given all the resources Texas is committing to its "border surge" and prosecuting penny-ante drug users, the fact of increased deaths and lower prices related to illegal drugs flowing in from Mexico tells us that an enforcement-only approach won't work. And 2) increased overdose deaths and disease related to needle sharing argue strongly for "harm reduction" approaches like the Good Samaritan law Gov. Abbott vetoed or charity-based needle exchange like the bill passed by the the Texas House in 2015.

Texas leaders in recent years have begun to speak more frequently about being "smart on crime." This is definitely an area where Texas could be smarter.

The Intercept: State DA association understates extent of prosecutor misconduct

A recent Texas House Criminal Jurisprudence Committee hearing covered that panel's fourth "interim charge" - essentially a study assignment the House Speaker gives committees in between Texas' once-every-two-years legislative sessions - related to both prosecutor misconduct and ineffective assistance of counsel (aka, defense misconduct).

Grits had analyzed the key debates from that hearing related to ineffective assistance. And now, my neighbor Jordan Smith has a report on the prosecutor-misconduct portion of that debate for The Intercept. Jordan explored in some depth, and ably refuted, the state prosecutor association's claims that legislators should interpret the low number of prosecutors sanctioned for misconduct as evidence that prosecutorial misconduct doesn't (or barely) exists.

Between those two reports, one can get a decent sense of the terms of debate presented to the Criminal Jurisprudence Committee surrounding that interim charge.

#cjreform in the Texas GOP 2018 party platform

Grits is back from the Texas state GOP convention in San Antonio, where Just Liberty had a booth from which we promoted a number of criminal-justice reform planks in the party platform. Delegates approved quite a few #cjreform items worthy of readers' attention:

• Raise the Age. Calls on the Lege to raise the age of adult criminal culpability from 17 to 18.
• End debtors prisons. The party wants to "end the incarceration of individuals because they cannot pay tickets, fines, and fees for Class C misdemeanors, including traffic citations."
• Abolition of the Driver Responsibility Program. Includes a call to "immediately restore the driver licenses of the citizens whose licenses were suspended by the DRP and to cancel their debt."
• Quicker processing of rape kits. The party wants crime labs sufficiently funded to reduce rape-kit processing times to 90 days.
• Opposition to warrantless government surveillance. Two planks on this, one with general wording, and one calling on the Legislature to require a warrant for the government to access cell-phone location data.
• Civil penalty for pot possession. The party endorsed reducing penalties for low-level marijuana possession from a Class B misdemeanor to a civil offense (essentially, a $100 ticket).
• Remove cannabis from list of Schedule 1 drugs. This was a plank aimed at Congress.
• Medical marijuana. The party wants to "allow doctors to determine the appropriate use of cannabis for certified patients."
• Militarization of police. Calls for "reporting and training standards" for military equipment obtained by police from the federal 1033 program, as well as a requirement that the elected governing body approve any application to the program with a formal vote.
• Indigent defense. Calls on the Legislature to fully fund indigent criminal defense.

Moreover, several items that were in the 2016 platform made it in again:

• No arrests for Class C misdemeanors (except when necessary to prevent family violence)
• Require a criminal conviction for asset forfeiture
• Eliminate red-light cameras and other photo-enforcement systems

Notably, the "Criminal and Civil Justice" section of the state GOP platform included a requisite appreciation of law enforcement, but with caveats:

We express our gratitude and appreciation for police officers, first responders, armed forces, and veterans. And furthermore we support local law enforcement agencies and associated personnel to the extent local and state police officers are properly and adequately trained and supervised or otherwise internally and individually held accountable for any conduct which is found to violate state law or the Texas State Constitution.

There were a few #cjreform items that didn't make it in, but overall that was a successful effort. Check out Just Liberty's special, hour-long podcast interviewing conservative leaders on various #cjreform platform planks being proposed.

* * *

A few thoughts on the process:

Historically, party platforms don't carry tremendous influence during the legislative session. The dizzying array of suggestions and demands can be overwhelming. No one can agree with all of it, which in a strange way frees legislators from an obligation to agree with any of it.

But the Texas GOP under the James-Dickey regime has been promoting their platform more vigorously. E.g., failure to comply with the platform was the pretext for censuring House Speaker Joe Straus. And there were failed attempts at the convention to censure sitting officials like state Rep. Byron Cook and U.S. Sen. John Cornyn for failing to abide by the platform's principles. Especially on the GOP side, politicians are being called to account more than any time in recent memory over fealty to the platform. (Correction: Rep. Byron Cook, a commenter corrected me, ultimately was censured on a re-vote.)

At the same time, many delegates expressed deep dissatisfaction with the platform overall, which is a bit of a jumbled mess, in places, and is too long for any normal person to ever sit down and read. While this wasn't my first convention, I'd never seen the platform process up close. Those 31 volunteer committee members go through a grueling and thankless experience, working late into the evenings (read: missing all the parties), with very little time to investigate any issue closely. (Note to the state party: Next time, feed those people and give them coffee!) By the end, they were all exhausted. That didn't seem like a reasonable thing to expect human beings to endure. And they all paid to be there!

On culture-war issues, the platform takes some extreme stances that appear to flaunt a basic commitment to the rule of law. E.g., it calls on the Legislature to "reject" the Supreme Court's ruling allowing same-sex marriages, and to "ignore and refuse to enforce any and all federal statutes, regulations, executive orders, and court rulings" on pro-life issues.

Can we be frank? It's difficult to reconcile the extremist devotion to the Constitution expressed by so many party loyalists with a legislative priority to "ignore and refuse to enforce" federal laws and Supreme Court rulings on pro-life stuff. Since every Texas elected official takes an oath to uphold and defend the "Constitution and laws of the United States," that clause in the legislative priorities almost screams to elected officials, "You don't have to follow this!"

But that's the culture war. For the criminal-justice issues Just Liberty cares about, the platform signals to GOP legislators that a #cjreform vote on these topics is a "safe" one.

In addition, in an interesting and useful way, the process of promoting reform planks through all the various senate districts was like a massive focus group getting feedback on our issues. Even better: It introduced us to hundreds of supporters across Texas whom we now can contact and help plug into the process when the legislative session rolls around. If delegates who supported these ideas in San Antonio continue to participate next spring, it will help all these bills move forward.

I appreciated everyone who helped promote Just-Liberty-endorsed planks and who helped us navigate the party processes. Thank you! We had a lot of fun this week.

Finally, just for kicks, if you haven't heard our little platform campaign jingle (which means you're not a podcast listener or following Just Liberty's Facebook page), give it a listen. It's been running through Grits' head all morning.

Special Reasonably Suspicious podcast: Conservative leaders promote #cjreform planks in Texas state GOP platform

Want to better understand the reasons why prominent conservatives in Texas are embracing justice-reform policies? You won't find a better primer on conservative justice-reform principles than Just Liberty's special, hour-long podcast aimed at promoting #cjreform planks in the party platform at the 2018 Texas state GOP convention. Check it out:

This special episode includes original music and interviews with:

• Dr. Derek Cohen, Director of Right on Crime
• John Baucum, Chairman Emeritus, Texas Young Republican Federation
• Charles Blain, Executive Director of the Restore Justice Project, Empower Texans
• Jason Isaac, President of the Conservative Coalition Research Institute
• Heather Fazio, Campaign for Responsible Marijuana Policy
• David Safavian, American Conservative Union Foundation

Enjoy!

Find a transcript of this special episode below the jump.

Choker!, (Mis)Understanding Probable Cause, and other stories

Let's clear a few browser tabs and pass along some interesting tidbits that merit Grits readers attention:

TFW you find a box of guns and bloody money at the courthouse
Keri Blakinger did a wonderful job attempting to fill in the backstory on this amazing discovery.

They're all isolated incidents, we promise
A small-town Texas police chief (Olney) forced two men to perform a sex act at gun point and attempted to coerce the wife of a sex offender into becoming his "slave." That's quite a sense of entitlement this gentleman felt, don't you think?

No TCLE credit for Tom Green County sheriff training on jihadi threat
The Texas Commission on Law Enforcement retracted accreditation for a police training in San Angelo focused on the "jihadi threat," preaching to law enforcement that Muslims harbor secret aims to colonize America and impose Sharia law. Good for Kim Vickers, doing his job.

Bad things happening in jail
Grits can find no related press coverage, but a petition on Change.org alleges that a woman in the McLennan County Jail on a detention hold was sexually assaulted while being held on an immigration detainer for more than two years. She's a 30-year county resident and local businesswoman with four US-citizen children. I hate these stories. Heart wrenching.

Choker! 
A fired Waco cop who'd choked a handcuffed defendant and claimed he'd acted in self defense is on trial for two misdemeanor counts - assault and official oppression - reported the Tribune-Herald. A police trainer told jurors the officer had been specifically trained not to grab a defendant by the throat in that manner. Further, "Trial testimony showed that while the other officers there that night said they were shocked by Neville’s actions, they did not report it to their supervisors or note the incident in their reports." At least he's off the force.

Needless death thanks to outdated force policy
In Austin, a mentally disturbed 18-year old woman wielding a knife was shot dead by police. As Grits has described before, American cops are too quick to shoot knife wielding suspects. Both the Police Executive Research Forum and best practices from other countries have identified much better ways to handle these situations.

Analyzing unsolved murders
The Washington Post compiled clearance rates for murders over the last decade in the 50 largest US cities. Above 50 percent looks pretty good. Further, unsolved murders tend to be geographically clustered, they found.

Traffic stops are a crappy investigative tool
Frank Baumgartner, who authored a book analyzing racial profiling data from millions of traffic stops in North Carolina, told CityLab interviewer Tanvi Misra that "using the traffic code and the vehicle code as a way to investigate people more broadly has not given very great benefits in terms of crime reduction, but it's had an unintended and unnoticed consequence: It has made people feel like they don't have full citizenship. They walk down the street and they're suspects."

(Mis)Understanding probable cause
This analysis found that the public doesn't understand "probable cause" the same way lawyers and the government do, and the confusion causes community distrust. The authors "discuss the implications of these findings for the perceived fairness of police procedures and its impact on police–community relations."

Indigent defendants faring worse than two decades ago

Readers will recall recent reportage from the Texas Tribune's Neena Satija finding that defendants in Travis County with appointed counsel fared far worse than people who hired lawyers. Of those accused of petty drug possession, 80 percent were convicted who had appointed counsel compared to 48 percent who could afford to hire a lawyer, a Council of State Governments report found.

So I was interested to run across an old Bureau of Justice Statistics document from 2000 analyzing national statistics on defense counsel in criminal cases. (As far as I can tell, they've done nothing similar since.)

Back then, according to that document, conviction rates for defendants with retained and publicly paid attorneys were essentially similar, and the bigger difference was in the sentence received: "Of defendants found guilty in Federal district courts, 88% with publicly financed counsel and 77% with private counsel received jail or prison sentences; in large State courts 71% with public counsel and 54% with private attorneys were sentenced to incarceration."

So the big difference from hiring a lawyer came not from whether or not one was convicted, but whether or not one received a jail sentence. That's a big difference from today, when hiring a lawyer in the Travis County CSG analysis meant defendants were much more likely not to be convicted at all.

But even that's not the full story. According to the 2000 BJS report, "State defendants with public counsel [were] sentenced more often to prison or jail, but for shorter terms than those with private lawyers."

That was especially true for defendants convicted of drug crimes in state court, where average sentences back then were 97 months for defendants with a lawyer paid by the state compared to 140 months for people who hired a lawyer!

So in some ways, state defendants with publicly financed counsel fared better than people with private lawyers. Hiring a lawyer made you less likely to be sentenced to prison but, if you were sentenced, you were likely to be punished more than 40% longer if you retained counsel.

By contrast, today hiring a lawyer both makes one much less likely to be convicted and less likely to be punished harshly. The system has shifted more to the benefit of well-off defendants than it was 20 years ago, to judge by these data.

Despite serious disparities, defendants were receiving something closer to equal treatment, whether or not they could afford to hire a lawyer, during the period covered by that BJS study compared to now.

'Justice Needs A Platform'

Part One of the denouement of Just Liberty's campaign to install #cjreform planks into the platforms of both Texas political parties begins next week, with the state GOP convention in San Antonio. Today I'm putting together a special, hour-plus podcast for the event, highlighting interviews with Republican leaders in support of the various platform measures, and every time I use our little jingle (sprinkled throughout, in whole or in part, to brand the campaign), it makes me smile. If you haven't heard it yet (which means you're not a podcast listener or following Just Liberty's Facebook page), give it a listen:

We've got another version that goes, "Justice Needs A Champion," which we'll use this coming session in support of items that make it into the platform(s).

Lyrics are mine. Gabe Rhodes, a veteran Austin producer and virtuoso guitarist, composed and produced the music, which was performed by an all-star cast of Texas musicians: Floyd Domino on piano, John Mills on clarinet, Dony Wynn on drums, and Glenn Fukunaga on bass. (Many vocalists, including ours on this project, prefer not to be named on jingle work.) It was humbling and awesome to have truly world-class musicians on the project.

Speaking of music, Just Liberty created another short jingle, titled "Stop The Train," for our decarceration campaign over the coming year. We'll be using it to brand the campaign across a variety of media. To introduce it to our supporters, we let folks download/listen to it on the thank-you page they see after they sign a petition asking TDCJ to include prison closures in its budget request for the coming session.

Go here to sign the petition and give it a listen: It's essentially a simple, blues-based train song, of all things, but I think it's pretty fun. Once again, lyrics are mine, Gabe Rhodes produced it, and Dony Wynn made the whole thing go with his percussion mastery. Malford Milligan performed the vocals, and did a really sweet job.

All of this and more will be integrated into our GOP state convention podcast released next week, so look for that and give it a listen. Now, having procrastinated sufficiently, it's back to audio editing for me. More later, gentle readers!

While I'm focused on that project, Grits readers should use the comment section as an open thread to say what important criminal-justice developments Texans should be paying attention to? There's a lot going on!

Denial not just a river in Egypt, but also the go-to move for TDCJ flaks

The habit of the Texas Department of Criminal Justice (TDCJ) issuing full-throated denials whenever reporters raise serious problems is beginning to annoy your correspondent (again), and I wonder if others have noticed?

For example, when an inmate at TDCJ's Youthful Offender Program (YOP) was molested by an adult prisoner earlier this year, TDCJ spokesman Jeremy Desel told Lauren McGaughy at the Dallas Morning News, “'Any characterization of the [YOP] program being systemically flawed is false.' ... 'This is an isolated incident in which TDCJ took swift administrative actions against all employees involved.'”

In reality, under the federal Prison Rape Elimination Act (PREA) - which Governor Abbott agreed Texas would follow, reversing Governor Perry's stance - 17-year old inmates were supposed to be kept completely separate from adult inmates, enforcing "sight and sound" restrictions so older inmates could never see or speak to them.

So, when an adult inmate stuck his finger up the behind of a 17-year old in the Youthful Offender Program (YOP) in Brazoria County, it demonstrated that TDCJ had never actually complied with the sight and sound restrictions under PREA!

No adult prisoner should ever have been within ass-fingering distance of those kids.

Which tells us that, while TDCJ's spokesman insisted that, "Any characterization of the program being systemically flawed is false," in fact the incident precisely demonstrated a "systematic flaw" that went well beyond any "isolated incident."

These deeper, underlying, systemic issues are why TDCJ fired the warden and most of the YOP staff, then moved the whole operation, lock, stock, and barrel, to a facility in Huntsville nearer central administration. That's definitely a "systematic" response that belied the phony-baloney, nothing-to-see-here commentary Mr. Desel tried to pawn off on Ms. McGaughy.

The warden and staff were scapegoated. This problem resulted from decisions to disregard PREA sight-and-sound provisions for 17-year olds that would have been made at the highest levels of the agency.

Similarly, when the Texas Criminal Justice Coalition issued a report criticizing disparities in work and education opportunities for women prisoners, Mr. Desel told the Texas Tribune's Sydney Greene that he "vehemently disagreed" with the report, but offered at most nitpicking rebuttals to their criticisms.

This is deflection. In fact, as we learned in the same story, the agency itself recognized the disparities and asked for money from the Legislature in 2017 to upgrade women's programming, but it was denied. If the agency really disagreed there was a disparity, why would they need to ask for that money?

Then, this week, Grits read Keri Blakinger's story in the Houston Chronicle about four prison guards being fired at TDCJ's Ramsey Unit for planting evidence on inmates, then filing grievances against them. Allegedly, this fraud was conducted to comply with a 2-grievance-per-day quota dictated by their supervisor, a major, who was also terminated.

Once again, Mr. Desel exclaimed that the planting of evidence was an "isolated incident." But it's not an isolated incident if four guards are involved and they were enforcing a policy laid out by their supervisor! That's pretty much the opposite of an isolated incident. Rather, it is an example of systemic injustice.

One guard planting evidence on a prisoner and covering it up may be an "isolated incident." Five doing so is a conspiracy.

The Dallas News story mentioned above quoted a whistleblower accusing TDCJ of a "culture of coverup," and that's certainly what's evinced in this pattern of denials. In each case, reporters came forward with legitimately newsworthy stories and the agency responded with minimizing comments or outright denials in the face of obviously true, contravening facts.

That's not just evidence of a bunker mentality at the agency, it's a piss-poor PR strategy, to boot. Failing to acknowledge true things sets the agency up for a long-term media mire on these topics, where denials are corrected with facts, the agency issues a new round of denials, then we rinse and repeat until there's some real-world resolution, as we saw recently with the Texas Supreme Court ruling the agency can't conceal information about execution drugs.

Speaking of which: Few outside the agency probably remember that TDCJ fired their former spokesman, John Hurt, because he'd spoken honestly and factually with the press about that topic. Here's how Mr. Hurt, a 20-year PR veteran from the Texas Department of Transportation, recalled his brief tenure at TDCJ:

"My last interview was with Time magazine about the expiring execution drugs. When they found out, they positively came unglued that I did what I was getting paid for. They even admitted the interview read well, they just didn't want the issue in the media. They just wanted to keep issues like the CO shortage and the outdated execution drugs as far out of the media as possible."  Mr. Hurt went on to explain, "The admin suffers from intellectual incest. They all live in a little town, went to the same little college in Huntsville and are terrified of new ideas." Mr. Hurt then offered his ideas on how to change the face of the public information office and the agency in general. "Moving the agency to Austin would be in everyone's best interest." "I tried to show them how to position themselves in a positive light and they didn't want any part of it. I've never worked in a stranger place."

Before that, Michelle Lyons was fired for treating bloggers on equal footing with MSM reporters when they (we) requested information or reactions from the agency. They trumped up phony allegations that she'd fudged her time sheets and she sued, winning a fat settlement.

So this practice of deflection and deception is not new and not just attributable to Mr. Desel. Well before he arrived, back in 2013, I'd written, "Lately, Grits has come to consider both the TDCJ and Department of Public Safety PIOs [Public Information Offices] basically worthless," and little has changed since then.

Rather, it's more about what that YOP whistleblower called the "culture of coverup" surrounding what's now the planet's second largest prison system (after the feds) here in Texas. It's an old and well-worn pattern. But it's a continually lamentable one.

Now in a dwindling minority, failure to "Raise the Age" creating problems for Texas all over

The Missouri Legislature recently voted to raise the age of adult criminal responsibility from 17 to 18 years old, beginning January 1, 2021. That leaves Texas one of only four states nationally that still prosecutes 17-year olds as adults, despite the fact that an overwhelming majority of GOP primary voters (86%) support changing the policy. This is becoming embarrassing.

Quite a few stories you see on Grits are byproducts of Texas' backwards, minority-view policy on who is a juvenile.

For example, yesterday in a roundup I'd linked to a Dallas News story about the Youthful Offender Program at the Texas Department of Criminal Justice, which manages incarcerated youth younger than 18. After an adult inmate engaged in sexual relations with one of the youth, the warden and most of the staff were terminated and the entire program was moved to a unit in Huntsville, closer to central administration. This program - and the scandals that come with it - only exist because Texas has refused to "raise the age."

Similarly, Governor Abbott wants to treat 17 year olds as children for purposes of their parents' gun-storage requirements, but I'd described how the exact same logic may be used to support prosecuting 17-year olds as juveniles. Indeed, if Texas had already raised the age for purposes of prosecutions, it's likely the gun-storage rules would have been updated in the process.

We've also discussed county jails having to pay to meet federal PREA standards because they must enforce "sight and sound" barriers between 17 year olds and adult populations. The Legislature has balked at the fiscal note on raising the age, but failing to adopt the policy has created unfunded mandates for counties which are shouldered by the same taxpayers in the end.

And, of course, treating 17-year olds as adults created all sorts of problems with Texas' capital punishment scheme, given that US Supreme Court rulings treat them as juveniles.

There are so many areas where updating this one policy would resolve issues and remove glitches from various justice-system conundrums that are caused, at root, by treating 17-year olds as adults for some purposes and children for others.

Indeed, Grits has argued that raising the age from 17 to 18 merely moves Texas from a 19th to a 20th century policy. But in the 21st century, modern brain science has shown youthful brains continue to develop well after that. Society already treats older youth as children for many purposes - buying tobacco (18), alcohol (21), renting a car (25), staying on their parents' health insurance (26) - and there's no reason to think criminal prosecution necessarily should fall on the lowest end of that range.

Things are changing fast. When the Texas Legislature last convened, there were seven other states which still prosecuted 17-year olds as adults. After Missouri, there are three. 

Texas has made such great strides on the juvenile decarceration front, even if it has further to go. It's a shame that, nationally, this issue continues to paint the state as backward and excessively punitive. It's such a pointless stance, and on the ground is creating more problems and costs than it prevents.

Too full rural jails; missing interrogation recording can't be used as 'sword' against defendant; and other stories

Here are a few odds and ends of which Grits readers should be aware:

Youthful offenders get new home, program at TDCJ
The federal Prison Rape Elimination Act created special requirements for housing youth under 18 away from older inmates. After a sexual incident at the Texas Department of Criminal Justice's Youthful Offender Program that forced its from-scratch overhaul, the firing of the warden and most staff, and moving the program to an entirely different unit, it becomes more obvious why. Lauren McGaughy at the Dallas News has a report from the new unit housing the program.

TJJD safer with fewer inmates, director says
According to this letter to Governor Abbott from Texas Juvenile Justice Department Executive Director Camille Cain, " I am happy to report that we have already seen progress on several fronts. For example, the population in our secure facilities has dropped to historic lows, from 1,026 youth in December 2017 to 879 today. At the same time, we have seen a 43 percent drop in major rule violations and a 54 percent decrease in violent incidences. JCOs have lowered the use of physical restraints by 26 percent and the use of OC spray by 48 percent. All of this change is promising for Texas." See coverage from the Dallas News.

Missing interrogation recording can't be used as a 'sword' against defendant
In a recent CCA ruling favoring the defense, Judge Scott Walker ruled that a partially recorded interrogation was unfair and inadmissible after the prosecutor used the failure of the state to record the conversation to accuse the defendant of lying. Wrote Walker:

Assuming, without deciding, that Appellant testified truthfully about what she told the detectives in the missing thirty minutes, support for her testimony had been lost by the State, which then used the loss to accuse Appellant of lying and making things up. Appellant’s explanations were minimized by counsel for the State, both during her testimony and in closing argument to the jury. Appellant could not prove that she had made a prior statement that was consistent with her trial testimony because any such statements had been lost through no fault of her own. By repeatedly referring to what might or might not have been said during the missing thirty minutes, the State improperly used the missing minutes as a sword against Appellant. The error in this case was material.

Too-full rural jails
Check out the Texas Public Policy Foundation's new report on overincarceration and rural jails.

Rights for me but not for thee
Here's an academic paper considering the disparity in how police are treated when being questioned over alleged criminal conduct compared to average citizens, arguing that they should be treated equally. See related Grits coverage here, and related commentary from Toby Shook here.

Gov. Abbott: raise the age at which youth are considered children, but only for purposes of gun-storage rules (?)

In his plan to address school shootings, Texas Gov. Greg Abbott called on the Legislature to "to raise the age at which someone is considered a child from whom adult gun owners would have to secure their guns; Abbott wants to raise that one year to include 17-year-olds like the shooter at Santa Fe High School," reported the Austin Statesman.

Grits' thought: Isn't there a philosophical link between the Governor's proposal to consider 17 year olds "children" for purposes of gun ownership and the "raise the age" proposal to charge 17 year olds as juveniles instead of adults in criminal court?

If someone should be "considered a child" at 17 for purposes of access to firearms, can Texas really justify prosecuting 17-year olds as adults in other contexts?

After all, what is the nature of the developmental deficiency among 17-year olds that the governor thinks a birthday will fix? Why might one consider 17 year olds less than reliable when it comes to prioritizing firearms safety?

Why, it's for the same reason most states don't charge 17 year olds as adults when they commit crimes: The portions of their brains responsible for cognitive reasoning are less well developed than they will be when they are older. Or, in layman's terms, 17-year old youth are not yet as mature as adults.

Surely, if that's his position, the Governor should get behind raising "the age at which someone is considered a child" in general from 17 to 18, not just on this one, narrow, gun-safety provision.

Either 17-year olds are adults who're prepared for all of life's responsibilities, and the resulting consequences from not fulfilling them, or they're not.  And clearly Gov. Abbott doesn't believe Texans can rely upon 17-year olds to behave in a responsible fashion, or such a law wouldn't be necessary. (Indeed, most parents of a 17-year old would likely tell you themselves that their child isn't prepared to face the world on their own as an adult.)

Gov. Abbott's proposal challenges the legalistic pretense that 17-year olds can and should be expected to behave as responsible adults. But he should be consistent. If parents are still responsible for their children's 2nd Amendment rights at 17 because a 17-year old's cognitive reasoning is under-developed, surely it make little sense for the criminal-justice system to prosecute those same youth as adults when they break the law?

Gov. Abbott's arguments for raising the age in this narrow context highlight how inappropriate it can be to assign adult expectations to 17-year old actors. These are lessons state leaders must eventually embrace much more broadly, but journeys of a thousand miles always begin with first steps.