'Egregious' and common prosecutor misconduct not enough to overturn drug conviction

The U.S. Fifth Circuit Court of Appeals last week found that prosecutors engaged in "egregious" misconduct in a federal drug case out of Harlingen, but did not provide relief. "Two of [the defendant's] claims — the prosecution’s use of drug profiling evidence and bolstering of witnesses’ credibility — are errors that we have repeatedly warned the government about." The ruling concluded thusly:

Today’s outcome is the same as many of our prior decisions addressing drug profiling testimony and bolstering of witnesses: we find that the government engaged in misconduct but nonetheless conclude the defendant cannot meet the heavy burden of obtaining reversal for error he did not object to during trial. If the ultimate end of prosecution is securing convictions, it may not be surprising that this trend has not deterred these improper trial tactics. Of course, winning is not supposed to be a prosecutor’s lodestar. Striking “hard blows” but not “foul ones” in pursuit of justice is. Berger v. United States, 295 U.S. 78, 88 (1935). Fidelity to that higher calling would prevent us from seeing these errors yet again.

That's wishful thinking. As long as prosecutors have absolute immunity and the courts refuse to penalize their cases, even for repeated misconduct, you can bet your bottom dollar that fidelity to a higher calling will NOT "prevent us from seeing these errors yet again."

Growth in TX meth/cocaine overdoses far outpacing opioids

Grits has written how Texas' drug-overdose problem related to meth and other stimulants is a bigger challenge here than the opioid crisis that's gripping many eastern states. So I was interested to see an op ed from the Austin Statesman by Erich Schneider finally address Texas' specific situation. Concerning opioids, here's where we stand:

Centers for Disease Control (CDC) data shows that opioid-related deaths in Texas have indeed risen slightly – from 4.37 to 4.55 deaths per year per 100,000 residents – between 2006 and 2016. But in 2006, the Texas rate stood at 85 percent of the national average; in 2016, we were at just 35 percent of a tragically higher nationwide death rate.

The bigger growth occurred among overdoses by cocaine, meth, and stimulant users:

Over the same interval, Texas deaths related to cocaine, methamphetamine and other psychoactive stimulants have risen from 3.86 to 4.82 per 100,000. While some deaths were due to combinations of drugs and contribute to both statistics, it seems these classes of drugs are comparably lethal. Yet, they claim fewer lives than alcohol: CDC estimated that 27.9 deaths per 100,000 Texas residents were attributable to alcohol in 2014.

So that's a four percent increase in the rate of opioid deaths over the last decade, and a 25 percent increase in cocaine/meth-related deaths. And alcohol-related deaths are a FAR greater problem than illegal drugs.

By contrast, "Ohio, for example, is facing an opioid-related death rate of 31.9 per 100,000 residents – a staggering figure that rises above even our own state’s alcohol-attributable death rate." So clearly, they're facing a radically different situation than we are.

As Grits has iterated repeatedly, the main reason we haven't seen the same spike in opioid deaths is the predominance of black-tar heroin in this market that does not mix easily with fentanyl:

One factor that has driven the explosion of opioid deaths in the past few years is a spike in the availability of fentanyl, a synthetic opioid as powerful as it is deadly. To use fentanyl is to play with fire, and addicts often do so unwittingly, since fentanyl might have been added to their heroin. Those who survive develop a fierce attachment to its potency, so fentanyl appears to be here to stay. And many pill-users move to heroin once their habit becomes too difficult to support by other means. 

There’s one catch: Fentanyl is usually distributed as a powder. For that reason, it doesn’t mix well with the Mexican black tar heroin that predominates in the Western U.S., including Texas. It mixes easily, though, with the South American powder heroin used on the East Coast. 

It is no coincidence that so many of the lives lost over the past few years have been in the East. Dividing the states into those lying east and west of the Mississippi River provides a vivid illustration. In 2006, there was no large-scale geographic pattern to the nascent opioid epidemic. Deaths averaged 5.21 per year per 100,000 people in the Western states and 5.14 in the East. By 2016, the death rate in the Western states had ticked upward to 6.97, while in the East it had soared to 17.4. The deadly presence of fentanyl on the east side of the heroin divide is evident.

The author makes a welcome pitch for making policy based on data instead of media hype:

instead of clamoring for funding solely to fight the opioid wars here — when the numbers show that other places are in more dire need of it — let’s take another look at which drugs are actually killing people in Texas, including alcohol, and create a broad-based strategy that will save more lives.

Grits agrees, but would add that most of the policies needed to reduce overdose deaths aren't specific to a particular drug type. For the most part, solutions on overdose deaths are the same no matter which drugs we're talking about.

Taking cops off point on mental-health cases, commissary questions, a $7 million-plus AC bill, and more

Let's clear some browser tabs with a roundup of items which merit Grits readers' attention even if I don't have time to construct a full blog post around each of them:

Blood will tell you more
Following Pam Colloff's masterful two-part story on faulty blood-spatter evidence, ProPublica has launched a special newsletter in which she's following up on the articles and providing more context. You can sign up here. Teaser: In the upcoming, August episode of the Reasonably Suspicious podcast, we'll air an interview with Colloff about her story and the state of forensic science in Texas and beyond. Look for that in about three weeks. (You can subscribe to the podcast on iTunes, GooglePlay or SoundCloud so you don't miss it, and until then check out the July episode.)

Cornyn praises promising pilot on mental-health diversion
Grits is excited about the pilot program at Dallas PD praised by US Sen. John Cornyn in this Dallas News article. They're sending out interdisciplinary teams led by mental health workers to respond to 911 calls related to mental health crises, with cops participating as backup and support as opposed to shot callers. Not only are there better outcomes for mentally ill folks, it saved money and resources: Under the program, "of the 709 mental health emergency calls fielded since January, just 3 percent ended in arrest." In fact, "In the first three months of the program, the clinician's diversion of calls saved the police force about two weeks of salaried work."

Police are asked to handle too many social problems and mental health is one of the biggest. For the most part, the issue needs to be taken out of the hands of law enforcement and jailers and re-center the response around healthcare needs and social services, instead.

Commissary Questions
Earlier this year, the Prison Policy Institute (shoutout to their new employee, Texan Jorge Renaud) published a report titled, "The Company Store" about prison commissary economics. Now, they have some specific, commissary-related questions for the Texas prison system, including why Citibank would receive more than $6 million in commissary funds in a year and pertaining to the wisdom of collaborating with certain vendors using dubious financing methods that arguably short-change inmates. Legislators on committees overseeing the prison system may want to dig into this.

A $7 million AC bill and climbing
After spending $7 million on legal fees fighting against providing air conditioning to at-risk prison inmates during the summer, TDCJ is now beginning to do so, reported the Texas Tribune. This raises the questions: How much will TDCJ ask the Lege for air conditioning? How much will the Legislature give them? And will that be enough, or will more litigation ensue? Tune into the 86th Texas Legislature in 2019 to find out!

Marijuana not only issue where TX political parties agree
We've seen media coverage of the fact that both Texas political parties included some form of marijuana reform in their state party platforms last month, with pundits opining that the development makes passage of reform legislation more likely. But nobody in the MSM has discussed other points of agreement in the platforms on either criminal justice or other issues facing the state. On all those issues, the same analysis applies: Bills where both party platforms agree arguably begin the process with a leg up. It doesn't guarantee they'll pass, but it's a potent expression of an issue's potential.

Framing of inmates spurs renewed calls for TDCJ overight
Recent indictments of TDCJ staff who set up inmates in a fake discipline scam have renewed calls for independent oversight at Texas' prison agency, reported the Texas Tribune. Whatever form oversight takes, it's inarguable that having all your watchdogs report to the same board - as TDCJ does - gives an appearance of conflict and almost certainly creates actual ones. The system isn't adequately policing itself.

Four years waiting on trial from no-knock raid shooting
A Killeen man, who thought he was responding to a burglary, shot and killed a police officer when they executed a no-knock raid on his home four years ago and is still awaiting trial, with no denouement in sight. His attorneys have been ready for trial for some time, but the state has yet to press forward, leaving him sitting in jail while he waits. RawStory has a report.

DWI drylabbing allegations
A DPS lab analyst in El Paso, who in the past was caught allegedly falsifying drug weights, cutting and pasting data from other samples, has again been accused of dry labbing, this time failing to conduct tests on 22 DWI samples and cutting and pasting results from other cases. DPS said the error was unintentional, but its quality control reviewer saw the problem and didn't catch it. When samples were retested, the analyst combined good data with bad. She and the technical reviewer who approved her work are no longer with the agency.

Documenting the 'trial penalty'
The National Association of Criminal Defense Lawyers has a new report out on the extent of the "trial penalty" in federal court when defendants refuse to accept a plea deal. In related news, the Washington Post has an item on a juror speaking out against harsh, mandatory federal sentences, and conservative columnist George Will authored a piece on the topic.

'Misdemeanorland'
A new book addresses "Criminal Courts and Social Control in the Age of Broken Windows Policing." Check out a review.

What the judges want: Judicial Council recommendations to the #txlege

The Texas Judicial Council last month issued its recommendations to the Legislature on criminal-justice reform heading into the 86th session in 2019. Let's take a look at what judges are asking of the Texas Lege.

'Data! Data! Data! I cannot make bricks without clay'
Although listed under the heading for opioids, a recommendation to improve statewide collection of case-level court data deserved to be highlighted more prominently. The Council wants Texas to  begin collecting:

relevant case level data from all court levels including magistrates, to generate more timely and detailed information to support policy, planning, management, and budget decisions for the justice system. The collection of the relevant case level data should be fully funded by the Legislature.

This recommendation would have policy making implications well beyond the opioid crisis, and would benefit legislators themselves as much as anyone. As Grits mentioned earlier this week, you can't manage what you can't measure. And there are large swaths of the justice system that cannot be managed because it's impossible to talk with precision about exactly what's happening on the ground. Case-level data could help change that. (MORE: A helpful commenter pointed out the Council put out a separate set of recommendations specifically addressing data issues; see here.)

Establish an Opioid Task force
Yawn. Outside of Houston, meth is the bigger problem in Texas. And solutions on overdose deaths are the same no matter which drugs we're talking about.

'Pretrial Decision Making Processes'
The Judicial Council recommended eight different items on bail reform, providing a comprehensive roadmap for the Legislature to shift from money bail to risk assessments when determining pretrial detention. The list includes both statutes and constitutional amendments necessary to implement the plan, with rulemaking at the Office of Court Administration to flesh out the details within a "sufficient transition period."

In the Judicial Council's vision, all defendants would be assessed for potential risk with a validated instrument developed by the Office of Court Administration. The state constitution would be amended to a) create a presumption that defendants will be released on personal bond and b) allow judges to detain defendants they deem to be a public safety risk regardless of their ability to pay.

They want the Legislature to help fund pretrial supervision as well as training for magistrates and others making bail decisions. They also want the Lege to require data collection on pretrial-release decisions as part of the reforms.

Getting the Governor Out of Specialty Court Oversight
This one is interesting. Under Gov. Rick Perry, specialty courts in Texas blossomed. Today, "Over 190 specialty court dockets operate across Texas, including DWI court, drug court, family drug court, veterans court, mental health court, and commercially sexually exploited persons court," with the Governor's Criminal Justice Division the largest funder. But this was the prior Governor's priority, not this one. So it's little surprise that the Judicial Council might suggest that "certification and oversight" of specialty court programs be shifted from the Governor's CJD to the Office of Court Administration, which answers more directly to the judiciary.

The Council noted that current practice in Texas is out of step with national norms; only one other state places oversight authority for specialty courts with the Governor.

Firearms
This was clearly their most tentative proposal. Of all the things judges might request to stop mass shootings, asking the Legislature to fund better data entry into the national background check system is one of the least controversial, least bold, and least-likely-to-make-a-big-difference reforms you might name. But it's the only thing they could come up with.

No IAC Fix Suggested

One item Grits noticed was conspicuous by its absence. On the Court of Criminal Appeals, Judge Elsa Alcala has been calling for a legislative fix on ineffective assistance of counsel, which for the most part can only be challenged via habeas-corpus writs where defendants do not have access to an attorney. After four US Supreme Court justices raised the same issue in a recent dissent, Grits thought the subject might secure the Judicial Council's attention. I don't know whether they considered it or not, but clearly it didn't make the final cut.

Why we should care about new TX racial profiling data

The other day, Grits reported on the new elements Texas law enforcement agencies must begin including as part of their racial profiling data, starting with reports that will be released March 1, 2019. Now, let's discuss some of the implications for publishing this new data.

Contraband, consent searches, and proving discrimination

There's a fundamental problem with trying to use racial profiling data to allege discrimination at traffic stops from a statistical perspective, because it's impossible to tell with certainty what denominator to use. Not everyone ticketed by a given agency is from that jurisdiction. So, for example, data from Austin PD's traffic tickets on the day of a UT Longhorn football game might capture drivers from all over the state. Or, a rural jurisdiction with an interstate running through it may ticket out-of-towners more often than locals.

As it turns out, this is an insurmountable data problem - there will always be something to nitpick, no matter which denominator one chooses, because of limitations in the data.

Searches, however, are a different story. We know the denominator there - people who are searched are a subset of the people stopped. Moreover, since we can isolate "consent" searches, where an officer must ask permission to search because they don't have probable cause, it's possible to drill down to measure outcomes (i.e., whether police found contraband) within the narrow category of searches where officers are exercising discretion.

Still, a key piece of data was heretofore missing: The results of the search! As of next year, all agencies will be required to report how often those searches find contraband, and what was found (in broad categories). 

Starting next year, we'll find out how often these consent searches are productive and whether the results are racially disproportional. Where that data has been available, frequently the result is that black folks were more likely to be searched but officers found contraband more often searching white drivers.

Austin PD, for example, implemented a requirement to obtain written or recorded consent to search after gathering data on contraband and discovering, in 2003, that police were seeking consent searches from black drivers more than five times as often as whites but were finding contraband on white drivers twice as often as black drivers who were searched.

A similar pattern was found in 2015 when DPS' racial profiling data was analyzed by a national expert, as reported in this excellent Austin Statesman feature.

Texas agencies performing traffic stops are already required to record when they search vehicles based on "consent" rather than probable cause. Some agencies use consent searches infrequently; others use them all the time. Knowing the outcomes will complete the loop, letting agencies truly measure discriminatory practices.

But these data are useful for more than just proving racial discrimination: They provide one of the only data-based windows we have into Texas traffic stops, and combined with the statewide dashcam rollout that was part of the original 2001 bill, give us a window in the 21st century into the day-to-day workings of police practices that was simply unavailable to prior generations. It's rather amazing to Grits that we know as much as we do about traffic stops compared to what was available when I began this work a quarter century ago.

These additional data basically complete the dataset we were trying to achieve when the bill first passed in 2001. Dallas state Sen. Royce West carried the bill; at the time your correspondent was Police Accountability Project Director for the ACLU of Texas, and worked hand-in-glove with then-E.D. Will Harrell on the legislation.

Politics being the art of compromise, we couldn't convince the Legislature back then to include data which would allow such precise measurements of discriminatory practices. The police unions couldn't stop the entire bill, but they could and did stop that. Sixteen years later, though, the Sandra Bland Act picked up that spare, in bowling parlance, and henceforth we'll be able to measure over-aggressive and discriminatory search practices at traffic stops much more easily.

Documenting arrests for Class C misdemeanors

After Sandra Bland's untimely death, a bipartisan push emerged to stop law enforcement from arresting people for Class C misdemeanors where the maximum punishment is a fine, not jail time. Last month, a call to eliminate such arrests was included in both the Republican and Democratic Texas state party platforms.

So it's notable that, on March 1st of next year, in the middle of session, for the first time agencies will publish data on how often they arrest people solely for Class C violations. The new form includes four categories of arrests:

11.1 Violation of Penal Code
11.2 Violation of Traffic Law
11.3 Violation of City Ordinance
11.4 Outstanding Warrant

Two of those - traffic laws and city ordinances - are Class C misdemeanors, so that means, during session, we'll get first-of-its-kind new information for agencies statewide that's directly relevant to what by then will surely be pending legislation.

When the Texas Criminal Justice Coalition last year analyzed four months of data from Harris County, it turned out 11 percent of all arrests were for Class C misdemeanor violations. There is reason to believe that that's a higher number than we may find elsewhere, because of Harris County DA policies where prosecutors must pre-approve Class B arrests but not Class Cs. But until we see the data, there's no way to know whether 11 percent is really an outlier, and by how much. 

Grits is genuinely curious; I can't wait to find out!

Some jurisdictions conduct fewer consent searches but use arrest on a Class C as a way to complete searches without consent. In Austin, for example, APD policy specifically allows search incident to arrest as an allowable reason for a Class C arrest. So this new data will also allow researchers to analyze whether Class C arrests are also disproportionately aimed at black drivers in order to conduct searches that were not consent based.

Use of force data

Finally, the new requirement to record how often traffic stops include police use of force that results in bodily injury provides data on an obscure, darkened corner of policing that no one thought about much before the advent of police dash-and-body cams and, more recently, the public's own cell-phone videos.

Now we'll get department level data on how often that happens, and agencies themselves will be able to drill down to analyze trends at the level of the individual officer.

You cannot manage what you can't measure, so Grits welcomes these first steps at understanding the scope of police violence at traffic stops in Texas. Unlike the data on searches, discussed above, new force data in the report arrives in an essentially embryonic stage. I think we're going to learn a lot, and predict the new force data will raise more questions when it comes out.

Two persistent myths that hinder #cjreform

After talking to hundreds of GOP delegates at Just Liberty's table at their state convention in San Antonio last month, Grits noticed two incredibly common misconceptions demonstrating the public is unaware of some very basic facts about the justice system.

1. People think crime rates are high and increasing when in fact they're low and getting lower.
2. People do not know and in some cases refuse to believe that most inmates in county jails are pretrial defendants who've not yet been convicted, as the Texas Oberver recently reported. Rather, most people imagine jails are used to punish people after they're convicted.

The Observer headline said 3 out of 4 county-jail inmates is being held pretrial. As of July 1, the percentage of pretrial defendants out of local jail populations was actually 71.4 percent, according to the Commission on Jail Standards, so that's in the ballpark.

The same data show that, contrary to popular belief, county jails aren't really used much at all for formal punishment: Only about six percent of county jail inmates on July 1st were serving out punishments for crimes in the jail (i.e., people convicted of misdemeanors and/or felonies and sentenced to county jail time). Another 10 percent or so were convicted felons waiting for transfer to the state prison system.

Grits has theories about why the public has failed to understand the amazing crime decline witnessed over the last quarter century. I believe the media barrage about violent crimes from all over the country in the modern social-media era gives an impression that terrible murders and rapes are becoming more common, when in fact, for any given person, they're less likely than ever to be victimized by crime. They're just more likely to read about crimes from somewhere else. (MORE: A commenter pointed to this story about problems with and limits of MSM crime reporting.)

I'm not sure what explains the misunderstanding about what jails are used for - maybe it's a function of how the justice system is taught in school, or of law-enforcement rhetoric (and/or lazy reporting) that conflates arrest with punishment and accusations with guilt. Or maybe it's just that facts on the ground changed. A quarter century ago, pretrial defendants made up just a third of county jail populations.

Regardless, what we found tabling at the GOP convention was that, when people understood who is actually in county jails - people accused but not convicted who are still "presumed innocent" in the eyes of the law - they were more likely to support bail reform and a host of other decarceration measures. But these persistent myths are serious obstacles to reform; people who believe them are a lot less sympathetic.

Top 10 junk forensic sciences challenged in Texas

In the wake of the Forensic Science Commission declaring blood-spatter evidence in a 30-year old murder case "not accurate or scientifically supported," Texas has lately again been getting deserved credit as a national leader on forensic reform. Our forensic commission is the best in the country, according to Innocence Project cofounder Peter Neufeld, and our first-of-its-kind junk science writ has made Texas one of only two states (California followed suit) with the means in place to challenge junk science in old convictions through habeas corpus writs.

The most commonly used forensics that were questioned by the National Academy of Sciences 2009 report, "Strengthening Forensic Science: A Path Forward" - like fingerprints or ballistics matching - have yet to face concerted challenges. But quite a few second-tier forensic methods have begun to wilt under scrutiny.

Here's Grits list of the top 10 forensics challenged in Texas to date.

1. Dog-scent lineups
2. Outdated arson standards
3. Hair comparisons
4. Bite marks
5. Blood spatter
6. DNA mixtures
7. Field tests for narcotics
8. Future dangerousness testimony
9. Shaken baby syndrome
10. Forensic hypnosis

Honorable mention: Estimating suspects' height based on forensic video analysis.

Of these, only dog-scent lineups and flawed arson testimony have been eliminated, with hair comparisons mostly displaced by mitochondrial DNA testing in 21st century cases. A prosecutor in Collin County recently stipulated that bite-mark testimony is junk, so the Court of Criminal Appeals will soon get a chance to declare it non-viable. The rest are under dispute but still in use. Moreover, Texas has yet to figure out how to respond when forensic errors impact large numbers of already-decided cases.

That's why I've said before, Texas may be ahead of other states on forensic reform, but don't gloat. Most other states are behind because they never left the starting gate, and despite some notable progress, most of our needed forensic reforms remain in front of us.

First glimpse at improved racial profiling data

Racial profiling reports submitted by local law enforcement agencies got an upgrade in the most recent legislative session as part of the Sandra Bland Act, and the changes are pretty significant. The Texas Commission on Law Enforcement issued guidance for complying with the new requirements, and here's the model reporting format they suggested.

For comparison, here's the Austin PD report from earlier this spring covering FY 2017.

The new reporting requirements take effect with the racial profiling reports filed with the state on March 1, 2019. Big changes include requiring police to tell if they found contraband when conducting searches and what it was:

8. Was Contraband discovered? CCP 2.133(b)(4)  

9. Description of contraband CCP 2.133(b)(4)

9.1 Drugs:
9.2 Currency:
9.3 Weapons:
9.4 Alcohol:
9.5 Stolen property:
9.6 Other:

We're also going to start getting more data on the results of traffic stops by agency:

10. Result of the stop

10.1 Verbal warning: CCP 2.133(b)(8)
10.2 Written warning: CCP 2.133(b)(8)
10.3 Citation: CCP 2.133(b)(8)
10.4 Written warning and arrest:
10.5 Citation and arrest: 

And when drivers are arrested for Class C misdemeanors, we'll get data parsing that, too:

11 Arrest: CCP 2.133(b)(6)

11.1 Violation of Penal Code:
11.2 Violation of Traffic Law:
11.3 Violation of City Ordinance:
11.4 Outstanding Warrant: 

Finally, we'll find out how often officers use force at traffic stops:

12. Was physical force resulting in bodily injury used during stop? CCP 2.132(b)(6)(D), 2.133(b)(9)

12.1 Yes:
12.2 No:

These are important changes, many of them on the leftover wishlist of items we couldn't get into Texas' original racial profiling bill back in 2001, or when a central repository was created for the reports in 2009. In a lot of ways, adding the requirement to gather the additional data finishes off that 2001 project. Texas' racial profiling data has already significantly contributed to discussions about law enforcement practices in Texas, including on matters that have nothing to do with allegations of racism. This will make this data even more useful in the future.

Bail a 'tool of oppression,' SA police discipline full of holes, a decided lack of lessons from the McKinney pool party, and other stories

Here are a few odds and ends for Grits readers to consider while you're stuck inside (one hopes) waiting out these 105 110 degree days!

Austin police falsely accused man of pointing gun at officer
A man in Austin sat in jail for 15 months on charges that he pointed a weapon at officers, but authorities have known for much of that time that, in fact, he did not. Once the defense found out about the contrary evidence, they were allowed to plead to a lesser offense and the defendant was released with a sentence of "time served." The man's attorney told the paper the case “exposes how broken our bail system is and is used as a tool of oppression.”

SAPD lieutenant, fired repeatedly, may return to force
A San Antonio police lieutenant who has been fired repeatedly - most recently for making a homophobic remark on social media about the chief - may get his job back again, the SA Express News reported. That's a broken discipline system; management has almost no ability to weed out bad apples if four indefinite suspensions were overturned. Reported Emilie Eaton, "four police chiefs have suspended [this officer] without pay or fired him, for a total of 17 disciplinary actions. Four times, he fought and got his job back. Through appeals, he sometimes won shorter suspensions. Still, he was suspended for about 300 days, records show. He’s an example of how officers are able to reduce their penalties or save their jobs by exercising their rights under union contracts to seek outside arbitration and get chiefs’ decisions overturned."

Nobody learned much from McKinney pool party fiasco
A reporter from The Atlantic revisited the McKinney-pool-party police-brutality episode on its third anniversary. She depicts a divided community in denial where attitudes following the episode hardened into accusatory/defensive postures and the conversation never moved much beyond that.

TX not sufficiently treating, nor preventing, Hep C
The SA Express News wrote about the lack of access to Heptatitis C drugs for many Medicaid recipients, but they could have also mentioned state prisoners. Up to 50,000 prisoners have Hep C, TDCJ officials have estimated, which means they make up around nine percent of the total 580,000 estimated cases statewide. Nearly all of those people will eventually get out, so treating them would prevent spreading the disease. The other thing that would prevent the disease would be to allow charities to operate needle exchange programs. A big part of the spike in Hep C, according to the report, is needle sharing among heroin addicts.

Lawsuit could invalidate thousands of red-light camera tickets
Sometimes you piss off the wrong lawyer. In this case, an attorney fought a $75 red light ticket in court for years, arguing that it's invalid because the ticketing agency had never done an engineering study before installing the machines. The law definitely says they can't install cameras without such a study, I remember when state Rep. Gary Elkins got that added to the statute. Apparently, most cities ignored that provision! Can't wait to see if the Supreme Court agrees to hear the case!

'Rubber stamping' charges in capital cases overstated
Grits was quoted in this story about a study of Harris County death penalty cases which found that more than nine out of ten "findings of fact and conclusions of law" prepared by a trial court in habeas corpus proceedings are taken verbatim from prosecution briefs. Like Judge Elsa Alcala, also quoted in the story, Grits was unimpressed with the claim that the arguments were reproduced verbatim. In the Washington Post, Radley Balko went even further, accusing judges who adopted prosecutors' findings of "plagiarism." That's pure foolishness. In reality, it's common as dirt for the judge to hear both sides, make her rulings, then tell the winning side to write a draft of the final order. That's how most of the DNA exonerations, which were all habeas corpus writs, typically ended. Indeed, what happened in the Harris County bail case - where Judge Lee Rosenthal herself wrote a 100+ page order herself in the civil suit - is quite rare, even on the civil side, much less in criminal cases and particularly in habeas corpus writs. Judges having one of the parties draft their order, preserving the right to edit or alter it, is much more common. So that part of the critique is overstated.

So is, to a degree, the critique of the 90%+ number. One would expect the state to win a disproportionate number of these appeals. They're mandated after all, in death-penalty cases, while most similarly situated non-capital cases would never reach an appellate judge's desk. The real question is: Are defendants getting a fair shake? In some cases, like that of Juan Castillo, who was executed this spring, trial court judges have rubber stamped findings without giving the defense an opportunity to hold a hearing or even file a brief! That, to this non-lawyer, seems improper. But saying a judge simply should never adopt proposed findings from a prosecutor isn't a particularly compelling critique.

UPDATE (7/24): A capital attorney whom I respect called and chewed my ass for an hour about this item, but mostly kept repeating things I'd already agreed with in the prose above. Finally getting down to brass tacks on her precise disagreement, her complaints would have been satisfied by adding a five-word subclause that emphasized that Harris County judges aren't holding hearings in most state capital habeas writs, and in that way the cases in this study are not comparable to habeas writs in DNA exonerations, where hearings are more typically held. So noted, though I doubt that clarification will make anyone any more happy. Capital attorneys are a grumpy bunch.

Concussion protocols for criminal defense attorneys?
In the July episode of the Reasonably Suspicious podcast, Texas Defender Service executive director Mandy Marzullo and I discussed a case (~18:20 mark) that's the subject of this recent SA Express-News column: The lead attorney in a capital case suffered a concussion and visiting Judge Susan Reed, the former tuff-on-crime DA who voters forcibly retired in 2014, tried to make the defense team move forward without qualified attorneys until she grudgingly called a mistrial. Josh Brodesky provides an account that corroborates Mandy's recollections.

New competency restoration beds too little, too late
With months-long backlogs for competency restoration beds at state mental hospitals, any new beds are welcome. But the 40 added in San Antonio for $11 million barely scratched the surface of the problem. Like announcing you're going to bail out all the water in Lake Palestine, then pulling out a teaspoon to perform the task.

Indictments: Evidence tampering related to farm equipment implicated TDCJ managers in Huntsville
At the Texas Department of Criminal Justice's Eastham Unit, "Three Texas prison officials were arrested this month in an alleged scheme to set tractor parts on fire in a burn pit behind a Houston County lock-up as part of an apparent attempt to dispose of evidence in an investigation," Keri Blakinger reported at the Houston Chronicle. This wasn't routine guard misbehavior: It involved the farm-shop property manager and "two higher-ranking officials based in Huntsville, Terry Price and Rick Ellis, [who] were charged with tampering with evidence, according to court records."

First big summer heat blast hits after TDCJ lost temperature litigation
After settling the lawsuit over heat-related deaths at the Pack Unit, acquiescing in most of the plaintiff's demands after the Fifth Circuit refused to grant summary judgment, TDCJ officials must be sweating (pun intended) over the possibility that more inmates could die in un-air-conditioned units thanks to the record setting heat this summer. Maybe that will mean they'll do a better job of providing ice and water, but for people kept essentially in metal boxes in 105+ degree weather - both inmates and staff - that's hardly much comfort. This Houston Chronicle story considered the issue. "Overall, just 29 Texas prisons provide air-conditioned living units, while another 75 facilities do not have it." MORE: From the Marshall Project.

Bondsmen getting head start opposing bail reform
More on this later, but the bail bondsmen have formed their own front group with a fairly elaborate website to oppose bail reform in Texas in the 2019 legislative session. Problem is, thanks to Judge Rosenthal's decision and the 5th Circuit's ruling, something has to change. And if the Legislature doesn't take charge, it will change via county-by-county litigation, which has already spread to Galveston and Dallas counties and will go wider, guaranteed, if the Lege doesn't step in. Doing nothing, which is what the bail bondsmen want, just isn't an option. But they'll only settle for maintenance of the status quo. So, ironically, thanks to the federal courts, even if they win, in the long run, they lose.

Want to get rid of ads in daily Grits email?

So, it has come to my attention that the number of ads on the free service I've used for Grits subscribers for more than a decade has become intolerable, or at least annoying, to some long-time subscribers. For the number of people on the list, the service would charge $320 per year to get rid of them all.

If you're a Grits subscriber and want those ads to go away, use the donation link in the sidebar to contribute toward that goal. If we hit $320 in some reasonable period of time following this request, I'll switch it over. (Any excess, as always, will go toward this blog's ongoing newspaper subscription expenses.)

And if you're somebody who dropped off the list because you didn't like the ads, maybe we can rectify that in the near future. Even faster if you donate! As always, the form to sign up for Grits' daily email of the prior days' headlines is in the right-hand column, just below the link to writer bios.

Thanks folks! And now, back to your regularly scheduled programming ...

Austin police oversight ineffective, says audit; local media silent on narrative-busting analysis

The Austin Civilian Review Panel, as it worked under the now-expired police contract, was a failed oversight mechanism, the city auditor found. A  report issued in June concluded that, "Citizen oversight did not create substantive change within the Austin Police Department, largely due to the effects of City procedures and police department practices."

Your correspondent has been saying the same thing about Austin's oversight system on this blog since at least 2005 (and on its now-defunct, antecedent website, earlier than that). Even at its best, it never made any impact on the problems that spurred its creation.

Austin's citizen panel had access to more information about Internal Affairs cases than the public, but less than they needed to do their  job, according to the report.

Moreover, city legal staff edited recommendations from the citizen's panel before the chief saw them, if he ever did, and the panel never knew how they were altered. (The department never responded to most recommendations from the panel.)

Indeed, because the recommendation letters were altered by city legal, the Police Monitor didn't have copies of the final versions, and neither city legal nor APD kept them, at least not systematically. Auditors recreated the recommendations from multiple sources to get a clear view of the system and generate metrics.

Once they made their recommendations, panelists told auditors they went into a "black hole" and the panel never knew what happened to them - neither how the legal department may have changed the recommendations nor whether or how APD responded to them.

It's not that citizen panelists weren't doing a decent job: The appendix at the end of the report lists panel recommendations which, had the department quickly responded and made real changes to policy and procedure, might have saved lives. The panel recommended policy changes related to mental-health first response, firearm discharge, care for injured suspects, ride-along rules and much more. With no public debate and no discussion with the panel itself, these recommendations simply faded to nothing.

That's why your correspondent joined the Austin Justice Coalition in December to ask the city council not to renew the police contract. The oversight system, as I told the city council that night, was a "piece of junk." It was always a piece of junk. And we knew it long before this audit parsed the details. But it's nice to see it in an official city document. It's one thing for Grits or local police critics to say the system isn't working, and quite another for the city auditor to say so. Makes the conclusion harder to argue.

BTW, providing further evidence that local media has been completely in the can for the police union when it comes to debates over the contract and police oversight, this audit has received almost no media attention. The Austin Monitor covered it when it came out, and did a short followup, but neither the Statesman nor any local TV station - where activists' complaints last year about a crappy oversight system were routinely poo-pooed and dismissed - has seen fit to relate the auditors' findings to their readers/viewers.

Funny, that. IMO, if the audit had parroted their police-driven narrative from last year that the oversight system is wonderful and it would be a tremendous loss if it were eliminated, this story would have been front page news and led nightly coverage on multiple local stations.

UPDATE: Three days after I published this, the Statesman finally put out a story about this audit, more than a month after its release (and after the Austin Monitor scooped them). However, covering it AFTER being criticized hardly merits praise. And they quoted the police union spinning the story, but not any of the advocates whose research and analysis was finally confirmed by the audit. I don't know why my local paper has been so hostile to the local police-reform movement, to the point of failing to report news like this audit that supports reformers' positions while touting fact-free spin from the police union and APD management with no basis in reality. But that's what their coverage on these topics has been like these last couple of years. They only seem to honestly address police reform issues when shamed into doing so, and even then they're loathe to provide a voice to anyone actually pushing to reform the police department.

Do ankle monitors on parolees make anyone safer?

In response to episodes where two different parolees being supervised by ankle monitors reportedly committed murder, one of them allegedly killing three people, law enforcement officials in Houston have been blaming TDCJ for not notifying them more promptly that a potentially dangerous parolee wasn't being monitored. From the Houston Chronicle:

Harris County Sheriff Ed Gonzalez said the current system reveals communication gaps between TDCJ and local law enforcement. 

“There has to be a better way to identify those individuals that are parole violators who pose a serious threat to public safety,” said Gonzalez. 

Rodriguez’s case is not the only one in recent days that raised concerns about the monitoring of dangerous parolees. Earlier this month, parolee Garry Jenkins, 56, slipped out of his house after curfew — a violation that should have been detected by the ankle monitor that was a condition of his parole — and later allegedly stabbed his mother to death. Five days later, after being arrested for violating parole, he was charged with murder. 

Houston Police Chief Art Acevedo said the recent incidents highlighted the need to notify law enforcement of potential parole violations more quickly. 

“We need to come up with a process that’s almost instantaneous,” said Acevedo, who added that he wants to work with other departments around the area to create a regional task force dedicated to parole violations. 

Houston Police Officers Union President Joseph Gamaldi agreed. 

“We need to know when these monitors are … being cut off, so we can send people out there to look up these people and make sure they’re doing what they’re supposed to do,” Gamaldi said. “Three days is entirely too long before we know about it, that (someone) could get out there, do crimes and victimize people in our community.”

To the uninitiated, a call for "almost instantaneous" notification whenever parolees' ankle monitors raise a red flag surely sounds reasonable. But people in law enforcement circles - including IMO the officials making these comments - know it's complete bullshit.

In reality, ankle monitors are unreliable supervisors that create more problems than they solve. They exist because the idea sounds good in principle to the political class and is promoted aggressively by vendors, who've seen a big increase in market share. But in practice, if Houston PD began hunting down parole violators every time they (may have) absconded based on GPS data, they'd do almost nothing but that and still not make a dent in the problem they're trying to solve.

That's because ankle monitors have been plagued with false positive problems, to the point that they generate so much bad data as to be practically useless for supervision purposes.

In California, ankle monitors strapped to "high-risk" felons resulted in "agents [who] are drowning in a flood of meaningless data, masking alarms that could signal real danger." One expert told the LA Times in 2014:

"When these alerts are in the tens of thousands, it seems like an unwinnable situation," said Matthew DeMichele, a former researcher for the American Probation and Parole Assn. and coauthor of the Justice Department's guide on electronic monitoring. 

"In some ways, GPS vendors are selling law enforcement agencies, politicians, the public a false bag of goods," he said.

In Massachusetts, according to criminal-defense lawyer Daniel Capetta, "About 3,000 people are currently subject to electronic monitoring in Massachusetts. It has been reported that of these 3,000 GPS bracelets, there are approximately 1,800 alerts generated per day. In the overwhelming majority of these cases, there is no real problem."

In 2007 in Arizona, "140 offenders monitored that year experienced a total of 35,601 false alerts, due to problems such as low batteries or signals lost in dead zones." Of those, "The study group found 463 confirmed violations, meaning that false alerts outnumbered proven infractions by a 77-1 margin."

An essay from the Brookings Institute last year was titled, "Decades later, electronic monitoring of offenders is still prone to failure." Many GPS trackers are easily removed. They mainly exist to provide the public a false sense of security, a CYA backstop for probation and parole departments, and political cover for judges and/or parole boards making release decisions. 

By reducing available supervision resources thanks to spending so much time on false positives, however, arguably these devices harm public safety when used as widely as they are today. It would be even more harmful if HPD officers began spending lots of time tracking down parolees every time an anomalous blip shows up from their tracking device.

Not only can false positives make it hard to track actual evil-doers, they risk punishing innocent people because of technological glitches. Notably one of the inventors of an early GPS monitoring system now thinks they're used improperly and their functions could be shifted to smart phones. He also thinks companies that operate these services should be liable when they exacerbate public safety problems instead of improve them, characterizing their rent seeking posture coupled with a let-the-chips-fall-where-they-may attitude as a "negligent tort."

The same cost-benefit analysis related to ankle monitors applies to sending local police chasing after every parole absconder. According to the latest TDCJ Annual Statistical Report (2016), as of Aug. 31, 2016 (page 5), there were 12,883 parolees, out of 113,363, categorized as "pre-revocation, not in custody." Figure a fifth or so of those are in Houston. However, most of those pose nothing like the danger of the "mattress killer" parolee who allegedly went on a killing spree after cutting his ankle monitor. In fact, many of them just missed a meeting, will likely show up at the next one, and would not be revoked even if captured and brought in.

The truth is, even if TDCJ had notified them "instantaneously" in the recent cases, the Sheriff's Office wouldn't have followed up until a crime had been committed. The Associated Press reported that Harris County "deputies don’t necessarily search for parolees who have violated their terms of release and would only arrest those offenders they come across during the course of a patrol and run a background check."

The chief, sheriff, and police union have a mutual interest in hyping fear in an era of declining crime when law enforcement is making fewer arrests than any time in decades. They all have an interest in bigger budgets, more officers, and increased moral authority for themselves when the public sees them as protectors rather than incompetent bureaucrats.

So there's self-interest in their decision to ignore the problems with ankle monitors - even though their shortcomings are widely understood in law enforcement circles - and IMO it's that self interest we're seeing bubbling up in these comments. It's a win-win: deflects blame for local crimes onto TDCJ, and sets them up to look like champions of public safety when really the solutions suggested harm public safety thanks both to their politicized nature and extreme impracticality.

Junk-science writ doing the work, HOPE-less, considering prison ecology, and other stories

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

Junk-science writ doing the work
Texas' junk science writ continues to kick ass and take names. The Collin County District Attorney stipulated that bite-mark evidence is junk science in a hearing on the habeas corpus writ of Kousoul Chanthakoummane, Michael Bowers reported on Twitter. See more background on the case from the Texas Tribune. Notably, Virginia this year considered becoming the third state (after Texas and California) to let people challenge flawed forensics through a habeas corpus writ, but the measure failed to move in the House after passing the Senate. Grits continues to believe the junk-science writ deserves to be passed everywhere; flawed forensics are an issue in all jurisdictions, not just in the two most populous states. For more background on why this is needed, check out an excellent, extended article on flawed forensics published in Congressional Quarterly last year.

Eliminating Class C arrests could resolve Bexar jail beef
The biggest beef between the San Antonio PD and Bexar County over whether the PD will use the county's new jail intake facility is maintaining a space for processing Class C misdemeanor arrests. Given that both Texas political parties have endorsed eliminating most Class C arrests, maybe there's another way to skin that cat.

Convict leasing history unearthed
Check out the Houston Chronicle story about dozens of bodies of former inmates unearthed at a Fort Bend County construction site. These were inmates who died working for the Imperial Sugar company through Texas' old convict leasing program. MORE: From The Smithsonian magazine , the Washington Post, and the New York Times.

Graham PD criticized for tazing autistic man
Experts say police should have talked to the man longer and perhaps noticed signs of his disability instead of just tazing him and taking him into custody.

Wishful thinking not a strategy on mental health
"The Harris County sheriff’s office doesn’t want its jail to be the largest mental health facility in Texas anymore," reported Politico. But given that about a quarter of the 10k jail population suffer from a diagnosed mental illness, the small-time programs described don't sound like they'll solve the problem anytime soon.

Death disparities in Denton
There's only one criminal defense attorney in Denton County qualified to handle death penalty cases, and he says he's not getting the same resources as the prosecution. He also wonders why some cases are charged as capital, a comment that underscores how Texas prosecutors have taken to charging more routine murders as potential death penalty cases.

HOPE-less
The HOPE probation program out of Hawaii isn't delivering results when implemented elsewhere. The NIJ has a study of four pilot sites, including in Tarrant County, TX, and here's an academic analysis describing some of the problems. Grits had written about the Tarrant pilot when it launched, I'm disappointed to learn it hasn't generated improved results.

'Plea deals have unbalanced Oklahoma's justice system'
From the Oklahoma Policy Institute, see an interesting critique of how the plea bargaining process leads to a bloated justice system.

Considering prison ecology
Historically, environmentalists haven't always been allies of the #cjreform movement (#understatementoftheyear). So I was interested to run across these environmental critiques of prison systems:

• Prison Ecology Project
• Campaign to Fight Toxic Prisons
• ALSO: From the Outline, "How prisons are poisoning their inmates"

Smart decarceration

There's a new book out on smart decarceration policies that will go onto Grits' reading list.

Wrongful convictions and their causes
Check out an extended bibliography on the topic.

Crime data over time
A Ph.D. candidate out of the University of Pennsylvania has compiled reported crime and arrest data for US police departments dating back to 1980. Check out the tool he's created here.

Odes to bipartisanship, on #cjreform and beyond

While this blog has focused on bipartisan #cjreform planks in the Texas Republican and Democratic Party platforms (see a link roundup and discussion here), GOP SD 11 Chairman Scott Bowen published a column last week at Big Jolly Politics detailing bipartisan platform agreement across an array of issues.

Texas Rs and Ds agree on a lot more than you think.

RELATED: See also a column at BJP from Howie Katz, who comments at Grits under the pseudonym BarkGrowlBite, discussing #cjreform planks in the state GOP platform. According to Katz, "One would have to think that some of these planks were written by Democrats, not by Republicans." But the response in the comment section found numerous GOP stalwarts taking issue with that assessment. Well worth a read for those interested. (See also Grits' writeup of #cjreform planks in the state GOP platform.)

FWIW, having worked the Just Liberty booth at the GOP convention and spoken to hundreds of delegates in San Antonio about criminal-justice reform, my experience coincides with recent polling of GOP primary voters on the topic: Much of the Republican base supports #cjreform, even if many elected officials and the consulting class remain scared of it. And Democrats have moved even further down the same path.

As SD 11 Chair Scott Bowen asked rhetorically in his column, aptly titled, "The Bipartisanshp Platform," "Why haven’t we accomplished the things we all agree should be done?" Why, indeed?

Prison system is Texas' third fifth largest employer

The Texas Department of Criminal Justice is the state's third fifth largest employer, according to Grits' calculations.

I began to investigate that ranking after seeing an article from US News and World Report titled, titled, "Can the Rural Prison Economy Survive the Decarceration Era?" According to that story, the Department of Corrections in Pennsylvania is the 15th largest employer in that state. How does that compare to Texas, I wondered?

TDCJ employs more than 37,000 people at any given juncture. How does that compare to other large, Texan employers?

There doesn't appear to be an official government listing of each state's largest employers, and I couldn't find specific data either from the federal Bureau of Labor Statistics or the Texas Workforce Commission. (Let me know in the comments if you're aware of better sources.) Googling around, however, I found several unofficial lists purporting to identify Texas' largest employers. See here, here, and here. None of these included the prison system in their lists. That's a mistake.

Two of those sources listed two entities - the Texas A&M University System (50k) and Shell Deepwater Development (44k) - as having more employees than the Texas prison system, followed closely by the MD Anderson Cancer Center in Houston (35k). This source added the DFW International Airport at the top of the list, at 60k employees.

So depending on whether we include the DFW Airport, TDCJ is the third or fourth largest employer in Texas. Grits would tend not to include the airport. Apparently, the 60k figure is for all employers; only 1,900 of them are employed by the airport proper.

In that light, I'd call TDCJ Texas' third largest employer. HOWEVER: A commenter pointed out that Walmart and HEB both employ more than any of those entities, which would make TDCJ the fifth largest. See the correction below and the comments.

If the state corrections agency is the 15th largest employer in PA and the third fifth largest in Texas, that tells you the penal system here is a much more significant part of the economy.

According to the Bureau of Labor Statistics, about four out of every 1,000 jobs in Texas are correctional officers in prisons and jails, totaling about 48,600 statewide.

CORRECTION: A commenter pointed out that Walmart (171k) and HEB (90k) both have more employees than those listed, which would make the prison system the fifth largest employer in the state. Again, if anyone has a better list than the sources above, let me know in the comments.

FIRST-STEP opposition shows why partisanship is the bane of criminal-justice reform

Just Liberty this week will launch a new action alert asking Texas Sen. Ted Cruz to support the federal FIRST-STEP Act, which regrettably puts us at odds with some national reform groups like the ACLU and the Leadership Conference (now headed by our old pal Vanita Gupta, lately of Obama-Administration fame).

Other #cjreformers like Families Against Mandatory Minimums, the #Cut50 campaign, and Right on Crime support the measure.

Decision Time
As Just Liberty's Policy Director, I had to make my own assessment. And from a #cjreform perspective, it's impossible not to conclude that FAMM and #Cut50 are right on this one and ACLU and the Leadership Conference are letting partisanship impede doing what's best for prisoners.

The main criticism of the FIRST-STEP Act is that it doesn't go far enough, failing to embrace sentencing reform measures which would more fundamentally confront federal mass incarceration trends. Here's how a San Antonio Express-News editorial described those complaints:

Progressives are sharply divided on the measure, mostly because of what it doesn’t do. The bill — sponsored by Reps. Hakeem Jeffries, D-N.Y., and Doug Collins, R-Ga., and strongly pushed by President Trump’s son-in-law and adviser, Jared Kushner — does nothing to address the main problem, which is that this nation sends far too many people to prison and keeps them locked up far too long. 

Truly meaningful change would involve sentencing reform, for which there is some bipartisan support in Congress — but not enough to get such legislation through both chambers. It is hard to imagine that Trump, who tries so hard to project a tougher-than-thou image, would sign a bill significantly reducing sentences. And Attorney General Jeff Sessions, who believes in throwing away the key, would have a conniption fit. 

The First Step Act ignores the “front end” of the problem — sentencing — and focuses exclusively on the “back end.” It would provide $50 million a year for five years in new funding for education and rehabilitation programs in federal prisons, encourage inmates to participate in those programs by giving them credits for early release, and allow some prisoners to serve the balance of their sentences in halfway houses or home confinement.

Good > Perfect
So our liberal friends don't oppose the things in the bill so much as they think OTHER things should be in there. In other words, they're allowing the Perfect to become the enemy of the Good. Grits supports sentencing reform, too, and I wish it were included in the bill passed by the House. Those national groups are not wrong to insist that it's needed.

But this is not a sentencing reform bill. OTOH, on the issues it does address, most of them are modest improvements over the status quo.

In Texas, that's always been my threshold for whether to embrace reform. "Is it an improvement over current law?" If yes, don't oppose it unless it harms somebody. By that standard, supporting the FIRST-STEP Act is a no-brainer.

Indeed, thanks to changes in how good time is calculated, there are 4,000 people who would be released immediately if the law is enacted. Without the bill, they stay locked up.

That, to me, is where Grits parts ways with Gupta and Company: I'm not willing to tell an incarcerated person - much less 4,000 of them - that they should spend more time in prison because IMO some bill doesn't go far enough. These liberal critics aren't the ones doing the extra time!

How incrementalism works
Partisans ensconced in D.C. gridlock fail to understand some of the lessons on bipartisanship we've of necessity learned in Texas: Getting folks from both parties to support a modest reform today can help persuade legislators to do more later once they see the public reaction and find that there's no backlash, or at least that it's survivable.

For example, in Texas, former House Corrections Committee Chairman Ray Allen passed legislation in 2003 mandating probation on the first offense for low-level drug possession cases, diverting a few thousand people from Texas prisons. He was challenged in 2004, called "soft on crime" by his chief political opponent, but won anyway. After that, and really, because of that, legislators felt comfortable embracing bolder decarceration reforms in 2005 (vetoed), paving the way to pass the ambitious 2007 probation reforms championed by Sen. John Whitmire and Rep. Jerry Madden. Members needed Chairman Allen's electoral example to see that, if they stuck their necks out, they wouldn't get them cut off! (For more background, David Dagan and Steven Teles described these episodes in their book, Prison Break.)

While there's still far to go, over time this approach has made a significant dent in mass incarceration in Texas, symbolized most prominently by the closure of eight prison units, including four closed during the most recent legislative session.

Similarly, if Congress were to pass the FIRST-STEP Act and Republican legislators were to discover in November that they received credit for its passage instead of blame, that will make them more likely to vote for sentencing reform in the future. That truly would be a "first step." Big ships turn slowly, and the slowest to turn of all vessels are ships of state.

It took decades to build America's carceral state, there aren't going to be any quick, one-bill fixes. And future fixes become less likely if liberals blow up efforts at #cjreform bipartisanship.

Why multi-issue groups are the bane of #cjreform
But maybe the real issue is Democratic partisans who don't want Republicans to get credit for something good while they see those same Republicans on the opposite side on other debates that they care about. To that extent, splits on the left over the FIRST-STEP Act point to another problem that's plagued justice reformers since your correspondent got into the game back in the 1990s: Multi-issue groups will always sell out a #cjreform agenda when it conflicts with other liberal goals, in particular on pro-choice, gay-rights, environmental issues, and increasingly in the Trump era, immigration.

Many Democrats oppose the FIRST-STEP Act simply because they don't want to give President Trump " a win." To me, that's flat-out unpatriotic, no less so than all the Republicans in Congress who considered it their mission in life to see President Obama fail. (It may sound corny, but I want America to succeed, even under President Trump.)

It's also politically inept. Politics is the art of the possible, and while Republicans control Congress and the presidency, this is what's possible. In poker terms, take the chips on the table and live to play another hand.

If Democrats want US policy to go further, win some damn elections. But if this bill was proposed under a Democratic administration and Congress, these same groups would all support it. It's hypocritical and counter-productive to oppose it now.

RELATED: Washington Examiner, "Time for bipartisan deal making on criminal justice reform."

"Isolated incident" at TDCJ means things that happen to lots of people all the time

Not long ago, Grits parsed statements from Texas Department of Criminal Justice spokesman and concluded that his consistent pattern of responding to systemic problems with claims that they're "isolated incidents" amounted to a "practice of deflection and deception," corrorborating what a whistleblower called a "culture of coverup" at the agency.

Here's a good example: An article by the indefatigable Keri Blakinger at the Houston Chronicle - focused on a major and three guards who were indicted for planting evidence on inmates and then filing false grievances - included a reference to this now-routine, "isolated incident" response:

A Texas prison spokesman last month called the screwdriver-planting scheme an "isolated incident." Since then dozens of inmates and their families have reached out to the Chronicle, the Office of the Inspector General and Texas Inmates Families Association with similar allegations. 

"Officers planting drugs, weapons, and other forms of contraband is a fairly regular occurrence in TDCJ," one inmate said, after detailing another alleged evidence-planting incident he says he witnessed at Ramsey Unit. 

In the past five years, there have been more than 75 arrests or charges of tampering with evidence or records filed against TDCJ officers, records show. That figure only includes cases investigated by the Office of the Inspector General, and it doesn't indicate how the cases were ultimately resolved.

Sound like an "isolated incident" to you?

The agency lessens its credibility when it responds to legitimate criticisms of systemic failures by scapegoating the lowest level individuals instead of accepting accountability for things that go wrong.

This is why advocates have called for independent oversight at the agency, a point made in the story by Jennifer Erschabek of the Texas Inmate Family Association:

"We've been fighting for independent oversight for years and haven't been able to get any traction," said Jennifer Erschabek of the Texas Inmate Families Association. "They always say there's the ombudsman, the House Corrections Committee, the Senate Criminal Justice Committee, the board - but that's never been effective for us because we never get the transparency or accountability we need on these issues. It takes the news media to get to the bottom of this and get to facts."

Crime still plummeting; juvie arrests down 57% in TX since 2010

In May's Reasonably Suspicious podcast, we discussed the remarkable decline in DWI and public drunkenness arrests statewide in Texas over the last few years, but it turns out that's part of a broader trend. Arrests of all types have declined a lot.

DPS arrest data is only available through 2016, but from 2010 to 2016, the number of adults arrested  in Texas dropped by 26 percent, from more than a million to 759,000, falling more or less in tandem over the period with the reported crime rate.

Juvenile arrests in Texas declined even more, dropping an eye-popping 57 percent over the same period.

The percent reductions in DWI and drunkenness were even greater for adults, so those charges are a leading cause of the statewide decline. But the reduction in overall arrests tells us this is a bigger trend, not just an issue related to alcohol consumption.

As I'd mentioned on Twitter, polls show most Americans believe crime is increasing, despite these remarkable trends in the opposite direction. Indeed, not only have crime rates fallen since 2010, they were falling for nearly two decades prior to that. Arrests didn't begin to decline until much more recently.

This reduces pressure on cities to hire more police officers, on counties to expand jail capacity, and ultimately reduces the need for the state prison system to keep so many units open.

That's bad news for local probation departments, the bail-bond industry, and the criminal-defense bar, all of whom see their revenue decline as a result. But for everyone else, there's nothing but a tremendous upside.

"Justice Needs a Platform" campaign updates, and notes from the Ophidian Uprising

If you enjoyed (or were creeped out by) the idea of "snakes on a plane," you'll get a kick out of this month's podcast intro focusing on an astonishing rash of snake-related law-enforcement stories slithering up out of the news mire in Texas over the last several months.

Shifting back to our regular, half-hour format, in the July episode of the Reasonably Suspicious podcast, cohost Mandy Marzullo and I discuss outcomes from Just Liberty's "Justice Needs a Platform" campaign, which aimed to install criminal-justice reform planks into the platforms of both major Texas political parties. You can listen to it here:

See also Grits' written summaries of Just Liberty's platform campaign results:

• Republican
• Democrat
• Areas of agreement

And check out special podcasts aimed at the GOP and Democratic state conventions interviewing conservative and liberal opinion leaders on why they supported criminal-justice reform planks in their party's platform. IMO the R podcast was particularly strong:

• Republican
• Democrat

Here's what's covered in this month's podcast:

Top Stories

• Just Liberty's "Justice Needs a Platform Campaign"

Death and Texas

• Do we need concussion protocols for criminal-defense attorneys?

Oddmakers

• How will bail reform proceed in Texas?
• A TN judged ruled revoking drivers licenses for nonpayment of debt to the government is unconstitutional. What are the chances this practice ends in Texas? (See related commentary from Texas Appleseed and the Texas Fair Defense Project, who believe, "A legal challenge similar to the one filed in Tennessee could be successful in Texas.")

The Last Hurrah

• SCOTUS: Cops need warrant to access personal cell-phone location data
• Do video games cause or reduce crime?
• How many felonies can Texans commit with an oyster? (redux)

Grits will add a transcript to this post later today.