Wednesday, November 28, 2018

Union contract fight gave Austin advocates leverage to improve police oversight

Austin Justice Coalition's victory over police union
brings to mind history's greatest upsets
(Updated with background links, photos, and an addendum.)

Although the local media has reported that the Austin police contract was finally approved and activists were happy with the result, only one local TV station report that I saw attempted to parse changes in the contract from a police accountability standpoint.

Advocates' year-long battle resulted in savings of $10 million per year compared to the contract rejected last December, as well as achieving greater transparency about police misconduct, the ability of the Police Monitor to accept anonymous complaints, and an end to the practice downgrading violations after a period of time so that they disappeared from public view (and couldn't be considered by the Chief in the event of future misconduct.)

Activists didn't get all they wanted. Of the six items in Campaign Zero's wish list for accountable police contracts, for example, the Austin Justice Coalition (AJC) and its allies only won one of them. That said, there were other accountability items specific to the Austin contract (e.g., downgrading violations over time) that weren't on Campaign Zero's list, and they were important, too.

Campaign Zero co-founder Sam Sinyangwe with
Austin Justice Coalition co-founder Chas Moore
Compromises notwithstanding, this was a major police-accountability victory. To my knowledge, no police-union contract in the United States, before this one, had been rejected by elected officials because of concerns over police accountability. From the moment the contract was defeated last December, it gave Chas Moore, his AJC compatriots and their allies tremendous leverage; more than police reformers in Austin have had at any time in living memory.

Before the contract defeat, AJC could get no traction for reforming oversight. In the months before last December's marathon hearing, at which the proposed union contract was finally voted down, AJC and allies presented eight reforms to both the City and the police association. The association never sat down with reformers, and the city failed to introduce the ideas into the negotiation process.

But after the entire city witnessed Moore and AJC standing over the defeated police union like Ali looking down at Sonny Liston (shouting "Give us police oversight!" instead of Ali's "Get up and fight, sucker!"), their voices could no longer be ignored.

Campaign Zero's Deray McKesson with the
Austin Justice Coalition policy team in Grits' living room.
The union swapped out their president for a new, co-lead negotiator, who in turn reached out to reformers. With strong, continued interest from council offices, the city rolled the reform proposals into the negotiation and discovered that hanging tougher brought rewards. In the version of the contract finally approved, the oversight mechanisms were moved to a city ordinance and the contract includes a more limited list of issues that required police association buy-in. That not only meant a lower cost. It also put the city council back in control of police oversight instead of giving the police union veto power.

As it happens, my wife was heavily involved in AJC's efforts to influence the contract and create a new oversight system for Austin. In the most recent episode of Just Liberty's Reasonably Suspicious podcast, she outlined the changes made and what comes next. Since the details of the new oversight system have received so little attention, I decided to pull out those comments as a stand-alone segment for anyone interested. Give them a listen:

Next month, both Chas Moore and Ron DeLord, the lead negotiator for the police union, have agreed to a joint interview/conversation on the podcast to describe the process and lessons learned from it, so I'm looking forward to that.

MORE: Chris Harris of Grassroots Leadership posted on Twitter this helpful graphic showing the impact of grassroots advocacy on the police-union contract and civilian oversight in Austin. The left-hand column was the old contract; the middle column is the one rejected by the City Council after a populist uprising last December; and the right-hand column is the new, final contract. Quite an improvement, huh? Especially on the price tag!

For more background, see these prior, related Grits posts:

Tuesday, November 27, 2018

Checking in at the CCA: TX high criminal court hasn't posted oral-argument videos in nearly six months, and other stories

Since your correspondent left the Innocence Project of Texas, I haven't tracked the Court of Criminal Appeals hand-down lists nearly as closely as at times in the past. But here are a few recent items that merit Grits readers attention.

Hiccup in publishing CCA arguments video
Last year, the Legislature mandated that oral argument videos from the Texas Court of Criminal Appeals should be recorded and posted online. But the last ones available as of this writing are from June, and court staff don't know when they will resume posting them.

I'd noticed the discrepancy because my podcast co-host, Mandy Marzullo, and I had hoped to do a segment on the use of "shock belts" in court following oral arguments in the James Calvert case, which was argued Sept. 19. But the recording is still not available.

Grits was told by court staff that the failure to post after June is because of "trouble with the audio." The Office of Court Administration, I'm told, is working on the problem. But it's now almost six months since they stopped posting oral arguments. Surely that should have been enough time to implement some sort of Plan B to begin recording again.

Shoplifter acting alone can't commit organized crime
Judge Elsa Alcala recently prevailed on the rest of the court to declare that a single episode of solo shoplifting, in which the defendant acted by herself and not in concert with others, did not qualify for enhancement for punishment as "organized retail theft." Here's her opinion, and Judge Keller concurred. Judge Yeary alone dissented, attempting to stretch the bounds of the statute far beyond reason, good judgment, or the well-documented legislative intent behind the statute. (Upon reading his opinion, I could not understand why he would choose to die alone on that hill.)

We're really going to lament Judge Alcala's departure from the CCA once she's gone. She's become an intellectual leader on the court who will be sorely missed.

Five-member CCA majority bucks GAW faction, trial court to declare defense counsel ineffective
An unpublished, per curiam opinion garnered four dissenters (the entire Government Always Wins faction) but no dissenting opinion earlier this month. The defendant alleged his trial counsel was ineffective because of his "failure to note that the foreman of the grand jury was also empaneled and served as the foreman of the trial jury, failure to file pre-trial motions to suppress, failure to object to the introduction of Sheriff’s Department offense reports into evidence, failure to present alibi witness testimony, and failure to advise Applicant that the decision of whether or not to testify was his to make."

The trial court in Newton County recommended denying relief. But five members of the Court of Criminal Appeals decided to overturn the conviction, granting the defendant a new trial. And whatever reasons Judges Keller, Hervey, Keasler, and Yeary had for dissenting, they chose not to share them.

5-4 is close, and the story line about the grand jury and petit jury having the same foreman is a twist I've never heard before. Nor is it typical for an unsigned, per curiam opinion to have four dissenters, much less for none of them to articulate the reasons for their dissent. The dynamics surrounding this case imply a lot of backroom drama, even if there's not much paperwork to document it.

Paxton prosecutor legal-fee decision may impact indigent-defense cases
The case over legal fees for special prosecutors in the Ken Paxton indictments perhaps predictably was decided based on political rather than legal considerations, with significant unintended consequences potentially resulting. The court's majority was under pressure from Republicans to shut down the prosecution of the state Attorney General, siding with pols in Paxton's home county to refuse to pay special prosecutors their legal fees. See coverage from the Texas Tribune.

Judge Mary Lou Keel seemed fed up with her colleagues in the majority, accusing them of re-ordering and re-wording statutes and case law to "mask" their real meaning and "disregard" the clear intent of the statute. I thought she made mincemeat of the central argument in Judge Bert Richardson's concurrence.

Both she and Judge Alcala made the case that the majority opinion would impact indigent defense payments. Alcala declared the opinion was "effectively a decision to deny paying a reasonable fee to defense attorneys appointed to represent indigent defendants, and that will likely result in more cases of ineffective assistance of counsel."

Not only was the court majority legislating from the bench, Alcala observed, but it was doing so badly. "It is improper for a decision granting mandamus relief to create new law, but it is an even more dire situation when the new law, as here, results in manifest injustice due to its newly created policy."

The majority botched the issue so badly it could even require legislative intervention. It's possible counties won't be able to find lawyers to take on complex cases if they may be limited to low, flat fee based on standardized schedules, no matter how many hours they put in on a case.

Monday, November 26, 2018

Prison-reform pioneer passes, bail-algorithm debate heads to Dallas, political parties want consent for auto searches documented, and other stories

With a few work items out of the way, today, it's time for a roundup post to clear Grits' browser tabs to start the week:

Ray Hill is dead; long live Ray Hill!
One of Texas' best known prison reform and LGBTQ activists, Ray Hill, founder of The Prison Show radio broadcast on KPFT, a public radio station in Houston, passed away over the holiday. Go read his obituary from the Houston Chronicle. He was an unforgettable character and a Texas justice reform pioneer. MORE: A further remembrance from Lisa Gray. AND MORE: From the Texas Observer.

Bail algorithm debate heads to Dallas
In Dallas, county reporter Julieta Chiquillo offered up a story this weekend titled, "Four things you need to know about Dallas County's plan to determine bail with algorithms." Reporters don't write their own headlines, so don't blame Ms. Chiquillo, but the first thing one needs to know is that bail in Dallas will not be determined by algorithms. No matter what the final form of this looks like, judges will continue to make the final decisions regarding who is detained and setting release conditions. See Grits' past discussions of the topic here and here.

Rs and Ds want consent for auto searches documented: Prepping for the debate
One of the #cjreform platform planks that made it into both the Republican and Democratic Texas state party platforms in 2018 was to require written or recorded consent of drivers' consent to search when police ask to search their vehicle at traffic stops. So I was interested to see this academic article by DePaul's Susan Bandes titled, "Police Accountability and the Problem of Regulating Consent Searches." Indeed, in preparation for those debates, Grits had flagged a recent article from the Texas Law Review on consent searches titled, "Ignorance and Democracy," another from the St. Johns Law Review called "A Warrant Requirement Resurgence? The Fourth Amendment and the Roberts Court," and finally, a book chapter titled "The Language of Consent in Police Encounters."

SPU Spews
Jon English, who works at the Special Prosecution Unit prosecuting crimes by inmates and staff at Texas prisons, authored a column describing his unit and what it does. Anyone interested should give it a read, it's a good window both into the job and how the people who do the job view the job.

Red-light cameras under fire
Will the Texas Supreme Court end the use of red-light cameras before the Texas Legislature does? Chuck Lindell describes the case before the TSC on the topic.

SCOTUS considers asset-forfeiture constitutionality
Reformers were already preparing asset forfeiture reform legislation in Texas, but depending on how the US Supreme Court rules, in an Indiana case pending before them, much of it may be moot. George Will, of all people, recently laid out what is at stake in the case.

Ready for a First Step
Whether the federal First Step Act passes is up to Senate Majority Leader Mitch McConnell. Everyone else is ready to vote.

German prison model light years from Texas, but provides vision small-ball proposals lack
Some blog readers consider Grits a radical when it comes to decarceration. And for Texas, maybe I am. But go read what prisons are like in Germany. Their government policies go far beyond anything I've ever dared advocate on this humble opuscule. Most proposals on Grits amount to suggestions for limiting bad outcomes. This article suggests what it might look like if prisons fundamentally embraced a rehabilitative, rather than a punitive mindset. What a sensible, public-safety minded approach! And yet, if you put the high points into a bill at the Texas Legislature, it'd be dead as a door nail. That's why, in Texas, #cjreformers historically have worked on small-ball decarceration and innocence measures; that's what can pass.

Burn It All Down
Off topic, but over the holiday, I found myself somewhat obsessed with a self-defined, feminist-sports podcast, Burn It All Down, whose hosts include Austin-based rock-star sportswriter Jessica Luther (who is the reporter primarily responsible for exposing alleged sexual-assaults by Baylor football players). Their premise is "the feminist sports podcast you need," and I must admit, having been unaware I needed one, they were right. Their coverage of whether toxic farts at a British darts championship gave the winner a competitive advantage was worth the price of admission. :) I've been listening to back episodes over the weekend, and subscribed going forward. I'd easily watch these gals over most of the ESPN afternoon sports-talk lineup.

Saturday, November 24, 2018

Two Dirty Little Secrets About the 'Distracted Driving' Debate

The Houston Chronicle has published a series on traffic deaths which, from Grits' observation, mostly has repeated tropes from self-interested secondary sources rather than investigate causes and solutions.  Only one article in the series - on traffic engineering - advocated for solutions Grits believes would significantly contribute to traffic-death reductions. The rest gave platforms for elites to promote their own, self-interested agendas.

Readers will recall the Chron's extended advocacy piece masquerading as news advocating for an increase in patrol officers to make DWI arrests. Having covered the vagaries of DWI arrest-and-death data for several years, Grits responded to point out that, in fact, there appeared to be little relation. DWI enforcement has plummeted in recent years, along with traffic enforcement, as police shifted to other priorities and the Department of Public Safety increasingly sent its traffic-patrol force to the border. But per-capita DWI death rates declined, despite the radical drop in enforcement. The Chronicle ignored that data to advocate for more arrests.

Their latest offering promotes the fake-news media bugaboo of distracted driving, calling for a criminal ban on talking or texting on the phone while driving and stiffer enforcement of current prohibitions.

I say "fake news" because the press have chosen to hone in on banning cell-phone use despite evidence that a criminalize-it approach doesn't work and may do more harm than good. That's what happened here, and in this case, I'd presented the reporters with contrary information that they either downplayed or didn't report.

The article significantly, and one must conclude, intentionally, overstates the extent to which cell-phone distractions contribute to deaths. But because they had seen the contrary information (I sent it to them), they phrase it in a way that acknowledges the counter-narrative then ignores the implications to pivot to a relatively minor cause of "distraction." Their commentary avoids ever making a declarative statement saying cell-phone use is a significant cause of traffic fatalities (since really, it is not), instead declaring experts are focusing on it, which apparently gives the authors license to never focus anywhere else. Here's their assessment of the problem:
The problem of distracted driving is as old as the automobile. Cellphones get the bulk of the blame of late, but safety experts say a range of features and pastimes — from stereos to food to the seemingly endless variety of gauges, indicators and dashboard displays — can present a danger. Sometimes the distraction is not even inside the vehicle; roadside vistas or startling scenes draw drivers' attention away from the lanes ahead. As long as people have passengers or the propensity to daydream, drivers will always have something else on their minds.

The issue has particular relevance in Houston and Texas, where cars are personal and sacred spaces, in part because of how much time drivers spend in them. The average one-way commute in the Houston area is nearly 30 minutes, and it is not uncommon for workers to spend an hour or more in the car each morning and evening.

So drivers pass the time as pleasantly or as usefully as they can. They listen to music or podcasts. They make work or personal phone calls. They eat and drink. During the morning commute, drivers can check their rear-view mirrors and see a man making last-minute hair fixes or a woman applying makeup. Many are doing multiple things at once, such as smoking a cigarette while holding their phone while reaching to turn down the radio or grab a sip of coffee. 
All of it adds up to distraction. Safety experts have zeroed in on cellphones, mostly because the devices have become ubiquitous in everyday life.
The rest of the article is an advocacy piece for criminalizing cell-phone use in the car, masquerading as a news article. Like the unnamed experts, the authors "zeroed in on cellphones" while ignoring much more significant distractions.

Conflating "distracted driving" with cell-phone use and focusing on the latter is like trying to reduce one's carbon footprint by installing a single, energy-efficient light bulb in the utility room while driving a gas-guzzling SUV.

Here's Dirty Little Secret #1 about this debate: People who are prone to distraction will find something to distract them. Take away one distraction and they will find another. Mainly we're talking about young people, whose accident rates were higher than adults long before smart-phones showed up on the scene.

Daydreaming is a bigger distraction, by far, than talking and texting on the phone combined. Should we criminalize that? In my own experience, trying to manage or discipline kids in the back seat while driving can be a bigger distraction than any phone call, in part because it can require looking back and taking one's eyes off the road. Number two for me would be fiddling with the radio (at least, before the radio was replaced by my phone). But I've never heard any of the distracted driving whiners suggest bans on those common behaviors.

Ditto for eating in the car; reporters do that routinely so THAT'S not going to be the low-impact behavior they choose to castigate. And while, because of gender-subject position, I cannot speak with first-hand knowledge, I've wondered with amazement as I've seen women in traffic putting on their make up in the rear-view mirror. It's hard to imagine a greater distraction than that, short of just opening up a broadsheet newspaper and reading a bullshit article about distracted driving.

In reality, only 1.2 percent of fatal traffic crashes involve distracting cell phone use. And indeed, late in the article, after laying out their advocacy argument for increased criminalization, they acknowledge the data don't justify their suggestions under a subhed labeled "Irregular reporting." "From 2010 through 2017, there were 4,997 roadway fatalities in the region, and crash reports listed a cellphone being in use in only 60 of them," they inform us, which would seem to be a de minumus source, in the scheme of things.

Rather than accept the implications of the data in front of them, they quote someone paid to "advocat[e] nationally for tougher phone laws" declaring "We're quite certain it's underreported." The rest of the article goes on in detail about how few people are ticketed for texting while driving and implicitly chastising agencies that don't share the reporters' priorities.

Given that per-capita traffic-death rates have been declining in Texas, it's hard to see where this supposed epidemic is causing some new raft of problems.

Indeed, nowhere in the article do we see mention of a study by an insurance-industry institute, which I told them about, which found that states enacting texting bans had higher texting-related-death rates as a result. The insurance-industry folks behind the study hypothesized that criminalizing the behavior made people hold their phones in their laps instead of up by the wheel where they could keep half an eye on the road.

Whatever the reason, shouldn't that counter-intuitive result  at least be part of the calculus? Shouldn't Texas learn from the mistakes of other states and not pass laws that may increase traffic deaths? For that matter, should Houston Chronicle readers be made aware of real-world results that contradict the thrust of reporters' advocacy for criminalizing widespread behaviors?

Which brings us to Dirty Little Secret #2: Cell-phone bans are a blame-the-victim coverup by politicians to shift attention from their own failures to invest in road safety. That includes both public transportation in and in between major Texas cities, and the sorts of traffic-engineering investments described in their one, useful article in this series.

Because roads are expensive and Texas politicians for two decades have been falling over themselves to outdo one another on who is the most anti-tax, Texas has failed to invest in its road systems, in its bridges and overpasses, in accommodations for cyclists and pedestrians (and now, scooters), much less in engineering improvements that would increase traffic safety. And this failure to invest is costing lives, as Grits wrote back in 2014:
By contrast, few politicians want to talk about the much more significant cause of fatal accidents in Texas: Under-investment in transportation infrastructure, particularly in the oil patch where the Eagle Ford shale region has seen a 40 percent increase in fatal crashes, but really throughout the state. Those parsimonious budget decisions at the Legislature are contributing more to the traffic fatality total than drivers talking on cell phones. But it's not as much fun to hold a press conference demagoguing against oneself. So it's better from a pol's perspective to find some group to blame and criminalize, like cell-phone users, even if in the scheme of things that's not the most common cause of driving fatalities, by a long shot, and bans may even make the problem worse.
And lo and behold, which Texas legislator is the state's most vocal proponent of texting-while-driving bans? Why, it's state Rep. Tom Craddick, a former House Speaker who represents the Permian-Basin-oil-patch, but whose leadership did not coincide with investments that might have prevented the spike in deaths described above.

As it turns out, the majority of Texas traffic deaths are in rural areas; by contrast, about 15% of the state's population lives in rural areas. That means a lot of the urban, commuter-oriented critiques on which the Chronicle focused miss the big-picture patterns driving traffic deaths.

This focus on "distracted driving," in Grits' view, is at root a self-interested distraction for the public aimed at diverting attention from the much more significant causes of traffic deaths - mainly failure to invest in various types of infrastructure. Those stem from politicians' direct decisions, for which they could and should be held accountable. By name. During elections.

Instead, the newspaper quotes those same politicians blaming the public for using their phones while they're stuck on the dysfunctional transportation system their government has provided them, in the Houston area, sometimes for hours at a time. And they do so even though they know (because data they reported show it) that cell-phone use is at most a minor contributor to traffic deaths.

This is lazy reporting. Not only does it ignore data in the authors' possession and fail to follow up on its implications, the narrative it presents told us nothing that hasn't already been reported a hundred times. More, even, than promoting misinformation in service of an elite agenda, un-originality may be these reporters' most serious offense.

Friday, November 23, 2018

Memories of Thanksgivings past: Clemency campaign collaborator ended his life after a terrible crime

Keri Blakinger has an awesome Twitter-thread about spending Thanksgiving in prison. Go read it. She's amazing.

This made me wonder, perhaps for the first time, whether I'd ever published Thanksgiving-themed commentary on Grits. Out of 9K+ posts, I found just two: One was an account of a Thanksgiving meal at a Texas youth prison in Giddings back in '07. The second, in 2011, was a complaint about President Barack Obama's then-chintzy clemency record (it improved dramatically in his second term), criticizing him for pardoning turkeys while quoting a writer, O. Henry, who probably deserved an innocence-based pardon (and certainly deserved one based on his rehabilitation and achievement in later life) for an alleged bank-fraud crime committed in Austin, Texas.

As it happened, an academic named Peter Ruckman, who ran a blog called Pardon Power and was one of a handful of national experts on both presidential and state-level clemency issues, also latched on to the President's O. Henry comments. Grits had been nagging then-Texas Gov. Rick Perry for years to improve his clemency record, so Ruckman and I had become online blog-friends (we never met in person), as he helped me understand how to parse clemency data I was getting in a jumbled mess from the Board of Pardons and Paroles.

Anyway, Prof. Ruckman and I launched a somewhat tongue-in-cheek campaign in 2011 to "Pardon O. Henry," chiding the President for quoting someone denied a pardon to celebrate pardoning turkeys. We created a website to gather petition signatures. I did a little research at the Austin History Center and the O. Henry museum here in town, reading tons of short stories and a half-dozen O. Henry biographies. And Ruckman created a formal posthumous pardon application, vigorously lobbying the Justice Department before it was was eventually denied. We had some fun with it; I learned a lot from the process, both about federal clemency procedures and a beloved American writer. Pete was easy to work with throughout, and a nice guy.

In his second term, Obama dramatically ramped up his use of clemency power, which ultimately was the desired result. But there's a melancholy note I never reported to readers who may remember this long-defunct campaign. Ruckman and I stayed minimally in touch, but I hadn't heard from him for a couple of years when news came this spring that the professor, having reportedly spent much time in a bitter marital breakup, murdered his two sons, 12 and 14, then committed suicide.

I've known this terrible news for several months, but hadn't written about it on the blog. What is there to say? It's about the most awful thing imaginable. However, reconsidering Thanksgivings past, as Keri inspired me to do, made me think of O. Henry, Prof. Ruckman, and his tragic story this afternoon, so I decided to pass it along. Now, Grits fears the president's dumb-ass turkey pardon will annually trigger memories of this macabre coda to what otherwise was a fun and educational little campaign we did together.

Wednesday, November 21, 2018

Reasonably Suspicious podcast: TX elections through a #cjreform lens, artists confront the justice system, update on Austin police contract victory, and a bid to ban forensic hypnosis from Texas courtrooms

If you find yourself with a spare 45 minutes over the holiday, or get bored on the ride home from Grandma's, here's the November 2018 episode of Just Liberty's Reasonably Suspicious podcast. As always, you can also listen to it on iTunes, Google Play, and SoundCloud.

This month:

Top Stories
Kathy Mitchell on the Austin police contract

Forensic Focus
Bill filed to eliminate forensic hypnosis

Fill in the Blank
The Last Hurrah
Find a transcript of the podcast below the jump.

Texans think justice system skewed against poor, support end to debtors-prison practices

Stagnant wages and empathy for economic struggles, combined with questions of pragmatism, have caused debtors-prison reform to emerge as a sleeper-hit with the public, judging from recent public-opinion assessments.

Yesterday, Grits cited a new poll which found that "81 percent of Texas registered voters believe the wealthy enjoy substantially better outcomes in the criminal justice than poor and working-class people." That's an overwhelming majority who believe that poor folks aren't treated fairly in the system.

These findings corroborate sentiments documented in a recent statewide survey conducted by the Texas Office of Court Administration:
  • Only one third (33%) agree that the average person can afford court costs and filing fees.
  • Slightly less than 3 in 10 (29%) agree that Texas courts treat people alike regardless of socio-economic status.
  • Two thirds (66%) disapprove of jailing people who owe court costs and filing fees when they cannot afford to pay.
So Texans think average people can't pay court costs, poor people are discriminated against, and the government should stop jailing people who can't pay debt to municipal courts.

Moreover, skewing government priorities toward debt collection has negative implications for public safety. For example, we know that cities that rely heavily on ticket revenue tend to have lower clearance rates on more serious crimes.

It's easy to see why the public thinks justice debt is such a big problem for low-income individuals. Earlier this year, the Federal Reserve estimated that 40 percent of Americans could not pay a surprise $400 bill without borrowing or going into debt. It's easy for municipal-court debt to exceed that amount. And many people owe more than that in delinquent Driver-Responsibility surcharges.

That's why, earlier this year, both Texas state political parties added platform planks advocating to stop jailing people for unpaid traffic ticket debt, instead sending unpaid bills to commercial collections. Roughly half-a-million people sat out traffic ticket debt in jail last year statewide, so that change would help out a lot of folks.

Clearly from these survey data, most Texans believe that jailing people for muni-court debt unfairly harms the poor and needs to stop. We'll find out over the next six months whether the Legislature will embrace this emerging, surprisingly popular view.

Tuesday, November 20, 2018

Texas voters think justice system rigged for the wealthy, NY Times reporting repeats forensics fail, pay to play in Harris County juvie appointments?, and other stories

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

State should end practice of letting untrained guards work in jails
Untrained jailers legally working on probation status at the privately managed Parker County Jail  were involved in the violent death of an inmate. Excellent story, go read it. The Texas Legislature should close the loophole allowing jailers to work in county jails before they've received training. They should have to fulfill training requirements before being put on the line, just like police officers must complete the police academy before being deployed in the field.

Texas voters think justice system rigged for the wealthy
Voters support bail reform, says a new poll, which also found that "90 percent of registered Texas voters are dissatisfied with the criminal justice system overall and 55 percent want a complete overhaul or major change." Further, "81 percent of Texas registered voters believe the wealthy enjoy substantially better outcomes in the criminal justice than poor and working-class people."

Pay to play in Harris juvie appointments?
The feds are investigating the Harris County juvenile justice system, zeroing in on potential "pay to play" relationships between criminal defense lawyers receiving appointments and judges receiving their campaign contributions. Readers may recall that just two judges in Harris County account for 20 percent of all juvenile commitments to Texas youth prisons.

NY Times reporter repeats HouChron failures in ballistics coverage
This New York Times story on ballistics matching made many of the exact same errors as did a Houston Chronicle story I'd criticized last month: Failing to acknowledge the lack of standards or any scientific basis for the practice. I commented on the article in a brief Twitter thread.

Charting new paths for District Attorney offices
Progressive District Attorneys elected around the country in the last couple of cycles are pioneering new approaches to reducing mass incarceration offices. For example:
One third of deaths in Illinois prisons were preventable with adequate healthcare
After following the issue of deaths-in-custody for many years, your correspondent believes lots more people die in Texas prisons from preventable ailments due to inadequate healthcare than are killed in the state's execution chamber. But because the system controls all information about healthcare, it's a difficult assertion to prove. In Illinois, litigation pushed the issue to the point where a federal court commissioned an independent expert to assess the situation. They found one-third of deaths in custody in that state were preventable with adequate healthcare. Here's the expert's report. IMO, a similar assessment in Texas would likely yield similar or worse results.

Saturday, November 17, 2018

Failure to pass First Step Act would be a step backward

The federal First Step Act this week dominated national #cjreform news, with President Donald Trump endorsing the bipartisan #cjreform legislation. But Majority Leader Mitch McConnell appears ready to renege on his promise to hold a vote during the lame-duck session. Here in Texas, John Cornyn is one of the bill sponsors, while our D.C. allies presently consider junior Senator Ted Cruz as "leans no."

Here's a summary of the bill from Families Against Mandatory Minimums, and here's law prof Mark Osler giving a run down on the bill's contents. Learn what the bill is about, then go here to contact Ted Cruz's office to ask him to support the legislation.

Earlier this year, the Perfect-Is-The-Enemy-Of-The-Good Caucus on the Democratic side were complaining that the legislation did not go far enough. But mercifully, those voices have STFU here in the homestretch. (Thank heavens! Grits was really starting to get annoyed at some folks whom I otherwise respect.) Sen. Dick Durbin (D-IL), who has been the best D reform champion in the US Senate, gave an excellent speech this week explaining why Democrats should hold their nose at voting with the President and support bipartisan justice reforms on the table.

Certainly, this bill doesn't go as far as your correspondent might like. But there's an unspoken benefit to passing the legislation beyond its contents. Getting to a vote on reform legislation in Congress provides a template to work from when pursuing future legislation. Without it, most senators won't have to take a stance, and the politics of the issue remains mushy and difficult to assess.

Texas has received much praise for its 2007 probation reforms, which have been hailed as a national model and a precedent for this federal bill. But what's less well known is that earlier reform votes at the Texas Lege in 2001 and 2003 - related to corroborating testimony of drug informants and mandating probation for the first offense on user-level drug-possession charges - provided the vote template upon which advocates built the '07 coalition. The latter couldn't have happened without the former.

In that sense, the First Step legislation is aptly named. Once it passes, other #cjreform legislation may well be possible. But if it fails, momentum will die and it could be years before the opportunity arises again. Failure to close, when the legislation is SO close to its denouement, would be a harsh disappointment and a bitter pill to swallow.

Friday, November 16, 2018

Austin police chief needs better responses to whistleblower allegations of improperly cleared rape cases

After the Center for Investigative Reporting and PRX aired complaints in a podcast from an Austin PD whistleblower claiming she'd been pressured to declare rape cases "cleared," the City Council got an earful at the hearing on police oversight Thursday evening. (Go here to listen to the podcast; the APD segment begins at ~35:10 mark.) KUT has now followed up, with one of the reporters discussing in detail what evidence they do and don't have surrounding the alleged clearance-rate coverup.

Grits wrote about the case the other day, so Chief Manley came up to me after the vote on the union contract (more on that, soon), earnestly wanting to explain to me why the issue was no big deal. But just as he did with the podcast reporters, he stopped short of being able to defend his position with specifics. He would say he had supervisors audit this or he was told that, while the whistleblower was speaking of specific cases about which she had first-hand knowledge. And his stance that he never intended the City Council to think "cleared cases" meant "solved cases" really doesn't match his comments to city officials quoted in the podcast. That's how any reasonable person would have taken it.

There probably needs to be an independent investigation of this episode by someone outside the department. The law enforcement responses so far seem more bent on obfuscating whether potentially viable rape cases were improperly cleared than on clarifying the matter.

Until then, my advice to Chief Manley: Find out to the letter what the sergeant thinks was wrong with your definitions of exceptionally cleared cases, then be able to explain the differences to reporters and the City Council. Don't just say there was a difference of opinion, as you declared on the podcast, and said to me at least twice. That's not good enough.

As it stands, the difference of opinion is that she has accused your agency of pressuring her to improperly clear rape cases, and your predecessor resolved the "difference of opinion" by removing her from her position as head of the sex-crimes unit so someone else could pump up the numbers. Given that fact pattern, the difference of opinion isn't trivial. Your side damn well better be right.

Wednesday, November 14, 2018

Bill filed to eliminate forensic hypnosis from Texas courts

Many thanks to State Sen. Juan "Chuy" Hinojosa for filing SB 130 to eliminate forensic hypnosis from Texas courtrooms. Grits has been fascinated with this topic since we first discussed it on the podcast last year, and reporters at the Dallas News and the Dallas Observer have covered the subject as well. A recent Psychology Today column on the topic concluded that the "cons" related to forensic hypnosis outweighed any "pros." Most states' courts do not allow it.

Required textbook for Texas
forensic hypnosis certification class
In this Twitter-string in response to SB 130, I briefly made the case for ending the practice. In essence, modern brain science has shown most of the thinking behind it is garbage. For example, recently I purchased a copy of the textbook the Texas Commission on Law Enforcement requires for forensic hypnosis trainings. That learned tome informs us that the "conscious" mind takes up 1/8 of the brain and the "subconscious" 7/8(!), with memories stored in the latter. It suggests "automatic writing" may be "useful in eliciting suppressed" memories, as well as "age regression," allowing witnesses to reenact past events.

Another Tweet in that string cited to the TCOLE curriculum for forensic hypnosis wondering aloud why the state would require detectives being trained in forensic hypnosis to demonstrate proficiency in post-hypnotic suggestions? (Item 14) Should detectives really be taught to implant memories in hypnotized witnesses? That seems dubious, at best.

There was a time when more than 800 Texas peace officers boasted forensic hypnosis certifications. Today, just two agencies - Texas DPS and the Harris County Sheriff's Office - employ nearly all of the fewer than two dozen forensic hypnotists in the state.

Indeed, forensic hypnosis appears to be a dying profession in Texas. There aren't many trainings conducted anymore. Pam Colloff, Mandy Marzullo and I wanted to take a forensic-hypnosis-certification course this year, but could not find one given in the state of Texas throughout all of 2018.

Most practitioners boast gray hair and decades-long resumes, and there doesn't appear to be an eager new guard anxious to stake their careers on a practice that's perhaps a half step above a tarot-card reading in terms of investigative utility.

The Texas Legislature should absolutely pass Sen. Hinojosa's SB 130, and while they're at it, they should get rid of this ridiculous certification at TCOLE. It can't be fixed. There's no scientific version of hypnosis-based memory enhancement to fall back on, even if the agency wanted to revise its trainings, which mostly don't occur anymore.

Anyway, TCOLE doesn't have sufficient curriculum staff to revise outdated police trainings, which is a budget question this blog will be revisiting later. They could use three additional FTEs for that purpose, according to the "exceptional items" request in their LAR. (And that's a no-BS request; their backlog is worrying.)

Neither can the Legislature count on the Forensic Science Commission to address the question, although they have received multiple complaints on the topic. That's because, by statute, they are only allowed to consider forensics related to "physical evidence." So hypnosis has somehow slithered through unintended gaps in the government's forensic-vetting apparatus.

That leaves the issue on the Legislature's doorstep. The case seems easy to make: In 2018, a curriculum suggesting police try to get witnesses to engage in "automatic writing," or teaching cops to implant post-hypnotic suggestions, doesn't even pass the laugh test. And yet that's the state of evidence Texas courts have allowed, with the Court of Criminal Appeals reaffirming the admissibility of hypnotically induced testimony as recently as 2004.

Courts in Texas have until now abdicated their duty to protect the public from junk science when it comes to admissibility of forensic hypnosis. In such instances, it's necessary and proper for the Legislature to step in. Bully for Chuy Hinojosa for doing so.

For more background on the topic, see:

New Day or an Anomaly? Dallas DA race became referendum on justice reform

It will be years before we know whether the Dallas District Attorney's race was a turning point or an anomaly in Texas prosecutor elections. Certainly, the state has never in living memory seen another one like it.

The sight of R and D candidates in a general election debating who would better reform the system stood in stark contrast to the days of tuff-on-crime DAs like Henry Wade or Bill Hill. This time, instead of trying to out-do one another with punitive promises, two former Republican judges (both former judges, one a former Republican) duked it out over who was more committed to reducing incarceration and enacting justice reform.

The victor, John Creuzot ran on a platform of ending mass incarceration and suggested he could reduce the number of people Dallas County sends to prison by 15-20 percent, as detailed by The Crime Report. Creuzot has promised to produce a plan to reduce mass incarceration within 90 days of taking office, so we'll soon see how he plans to accomplish that goal.

The group I work for, Just Liberty, co-sponsored a debate between the two Dallas candidates leading up to the general election. Go hear excerpts from a debate between the candidates here (at the 8:10 mark), or listen to the full debate.

Monday, November 12, 2018

Whistleblower: Austin PD fudged rape clearance rates to boost numbers, pretend hundreds of crimes were solved when no arrests were made

A former Austin police sergeant who was in charge of APD's sex crimes unit claims she was forced out after refusing to clear cases where arrests were never made and no one was prosecuted, even if the suspect had been identified. The result was to give a false impression that the department had solved many more rape cases than was really the case.

The podcast, Reveal, from the Center for Investigative Reporting and PRX, covered the topic of clearance cases in rape cases, and about 2/3 of the way through the episode (~35:10 mark), they hone in on Austin as their primary case study. Go here to listen. The former sergeant in charge of the Austin PD sex-crimes unit described being ordered to re-categorize cases, refusing because they did not meet the criteria, then being moved out of the job and replaced by people who immediately made the data changes she would not.

Police chief Bryan Manley was quoted giving puffed up stats to the Public Safety Commission, then unconvincingly defended the decision to re-categorize cases as closed to reporters after Mayor Steve Adler ordered him to sit down with reporters.

Manley comes off as non-responsive, while the Sergeant comes off as credible, with specific facts and data to back up her claims. The chief framed the issue as a simple difference of opinion which was resolved when the sergeant left the position. But the whistle blower saw more politicized motives at play in re-categorizing so many cases. While allowing that Manley may have been misled by subordinates, she insisted the re-categorization of cases as "exceptionally cleared" - which means cops had probable cause to arrest a suspect but could not, for some legitimate reason - simply wasn't justified for the cases in question.

Manley denied he was "blaming the victim," but his only explanation for "clearing" more than 1,400 rape cases in which a rapist had been identified, but not arrested, was that the "survivor" would not participate in the investigation. Problem is, victims can't participate if they don't know what's happening. The example of a UT student whose case was used to frame the story definitely fit the sergeant's characterization more than the chief's. She had to learn from reporters that Austin PD had found her rapist but closed the case without referring it for prosecution. She said she would have been willing to testify. It's hard to imagine, from the data presented by reporters, that that was an isolated circumstance.

Grits doubts we've heard the last of this topic. I'm looking forward to hearing the city council's next public conversation with the chief - perhaps this Thursday, when they finally approve the union contract and enact a new oversight system - in which council members have an opportunity to raise these questions.

Beyond Austin, a lot of the podcast focused on law enforcement gaming clearance rates, which is a topic this blog has returned to repeatedly over the years. Just to review a few of those items:

Clearance rates may represent the results of departmental-level decisions and priorities. For example, research shows that departments that are more focused on generating revenue through traffic tickets have lower clearance rates.

Low clearance rates are a source of political vulnerability for police, so there's an incentive to puff up the numbers, especially on something like rape where public sentiment is easily inflamed. Even so, clearance rates for many property crimes, in particular, are exceedingly low.

Homicide clearance rates have been on the decline in recent years, and one of the odd, unexplained ironies of modern criminology is that murder rates have declined even more than clearance rates, meaning the fact of solving a lower proportion of murders did not prevent overall homicide reductions. On the podcast in September,  Mandy Marzullo and I discussed (and for the most part, dismissed) a theory by an academic that those reduced clearance rates were a result of reforms achieved by the innocence movement.

MORE: This post brought to mind this classic, cinematic commentary on police clearance rates:

Friday, November 09, 2018

New top Harris Co executive a justice reformer, junk science writ a legislative unicorn, 'life and death in the carceral state,' and other stories

Here are a few odds and ends which merit readers' attention during the calm before the election-day storm on Tuesday:

New Harris County Judge campaigned on aggressive justice reform
Harris County's new 27-year old County Judge, Lina Hidalgo, campaigned on a platform of vigorous criminal-justice reform. She spent time at Harvard researching "the effects of incarceration on children," according to her campaign website, which promised that, upon election, she would emphasize "the importance of strong indigent representation." The section of her issue-page on criminal justice concludes, "Lina believes every person who has died or suffered due to a broken criminal justice system over the last ten years is one too many and that every dollar that has been spent perpetuating an inefficient system has been a disservice to taxpayers. She will fight for smart reforms as soon as she gets into office." For more background: Charles Kuffner interviewed Hidalgo before the election, and here's a profile and slideshow the Chronicle ran this week. Also related, from the Texas Observer: "The midterms triggered a seismic shift in Harris County courts."

Paxton bids to seize reins of capital case headed to SCOTUS
As Grits understands these matters, the Attorney General cannot step in to undertake local prosecutions in Texas unless the local elected DA asks for help. But that hasn't stopped AG Ken Paxton from seeking to intervene in the Bobby Moore death-penalty case as it heads to the US Supreme Court, Keri Blakinger reported in the Houston Chronicle. Indeed, AG Paxton thinks he gets to second-guess the role of both prosecutor and judge in the case: "the attorney general asked to replace the district attorney on the case and accused the Texas Court of Criminal Appeals of taking on the role of the legislature when it adopted updated, clinical standards for determining mental capacity earlier this year." The standard Paxton seeks to defend has made the state a laughingstock in legal circles for years, basing a key portion of its analysis on a fictional character from a John Steinbeck novel and straying far from findings of modern medical science. Even the Court of Criminal appeals has moved on from it, in light of the US Supreme Court's ruling in the case, which is why he's criticizing them, too. The Moore case promises to be a test for the new Trump appointees on capital punishment. Neither Gorsuch nor Kavanaugh were part of the decision decided 5-3 in 2017.

Was Texas junk-science writ the first-ever legislative expansion of judicial habeas power?
Historian Paul Halliday studied habeas corpus from the time of the Magna Carta through 1789. He found that legislative interventions into judicial habeas always trended in one direction: limiting judges' authority. That continued throughout American history, restricting the writ by statute, with limited exceptions, to post-conviction settings, culminating in the Clinton-era attack on habeas-corpus death-penalty appeals. Based on that observation, I made the case in a recent Tweetstorm that Texas' junk science writ, which has been reproduced in California criminal procedure, may be the first significant legislative expansion of the Great Writ since its inception in the Magna Carta. I'm not a legal historian and haven't studied habeas history in every US state. But Halliday demonstrated the case through 1789, and I can't identify any counter-examples after that until the Texas junk-science writ. Instead, legislators appear to have mainly restricted judges' authority with each alteration of habeas. If readers are aware of any contrary examples, please let me know.

'Life and Death in the Carceral State'
Check out video produced by the Texas After Violence Project and the Texas Justice Initiative. See also data related to the video and background on the interviewees.

Ending arrest for petty offenses
Here's an item from StayWokeTV about efforts in Austin to eliminate most arrests for Class C misdemeanors for which the maximum punishment is only a fine, not jail time.

Jails as mental health providers
The McLennan County Jail hired its first jail psychiatrist. “I would be willing to say 75 percent or more inmates that are in jail have some sort of substance abuse or mental health issue because that all runs together,” estimated a local jail official. But probably a much lower number will require psychotropic drugs, which is why the psychiatrist is needed. (Inmates aren't receiving talk therapy.) Harris County is ground zero for this problem, but even mid-sized counties like McLennan struggle to manage mentally ill inmates caught up in the justice system.

Dogs are better than people: Reentry edition
Read Keri Blakinger's story about what happened to her dog while she was in prison and her relationship with the folks who ended up with the pup after she got out.

Do police unions represent the views of their members?
In a recent column, former NY police commissioner and Right-on-Crime signatory Bernard Kerik used the Combined Law Enforcement Associations of Texas as an example of how unions' leadership doesn't necessarily represent the views of its members. Note to our Right on Crime friends: We need to see Bernie Kerik v. Charley Wilkinson in a tete-a-tete debate!

Risk assessments and bail reform
I'm still working my way through the subject, but your correspondent has a blog post or two bubbling up on the topic of risk assessments and bail reform. In the meantime, I'm not the only one thinking about the question. Here are several recent items on the topic that deserve consideration:
Pardon me, South Carolina, but you're showing up Texas on clemency
In Texas, gubernatorial pardons are more rare than competitive statewide elections. In South Carolina, by contrast, nearly everyone is pardoned who requests it.

Western on Reentry
Reentry is not my specialty, but Bruce Western both performs primary research and thinks about reentry questions deeply. So when he speaks on the topic, Grits pays attention. Go read an interview with Bruce Western thinking deeply about reentry.

Self-serving plug: If you're not sick of voting ...
An outfit called The Expert Institute emailed to say Grits had been nominated for Best Criminal Law Blog. For those of you not sick of voting, go here to +1 and make sure the winning blog has a Texas twang.

The scandal behind the scandal of journalist Mike Ward making up quotes

While other journalists have expressed astonishment that Mike Ward, the former Austin bureau chief of the Houston Chronicle and long-time Austin Statesman reporter, was caught making up quotes in his stories, Grits cannot muster much surprise.

As a journalist, Ward was a sycophant to power. The quotes he made up were of so-called average people because those were the folks whom he didn't bother to talk to, whose opinions he assumed he knew. Rarely were reform-minded opinions portrayed fully or fairly, for example, if they were portrayed at all. Instead, they were spun in a fashion he knew would please the powerful people who were his main sources and ultimate constituency.

Newspapers love journos like that because they appear to have "access," which, in the journalism world, counts as currency. But often "access" just means a politician knows a writer would never publish anything contrary to their interests, and at that point they've become more publicist than reporter.

By the time a journalist is making up quotes, filing articles with one or two comments from his powerful friends and then making up common folk to frame their message, they've devolved into full-blown fiction writing, or what the President would call "fake news." The Chron couldn't identify 122 people quoted as sources in 72 stories.

But Mike's writing was nearly as problematic in the stories where quotes weren't made up because of the way he pandered to the powerful. Even if the comments were real, he wasn't going to put anything in there that his patrons didn't want. To this long-time observer of Texas criminal-justice reporting, that's the scandal behind the scandal.

Wednesday, November 07, 2018

Viewing the 2018 mid-terms through a Texas #cjreform lens

There are many lenses through which to view the 2018 mid-term elections. On this blog, your correspondent examines Texas politics and policy through the lens of a criminal-justice reformer, so let's think about the election in that vein for just a moment.

At the national level, the only viable criminal-justice reform proposal out there is the First-Step Act, with Sen. Chuck Grassley's sentencing-reform measures now amended onto it. Neither Dems taking the US House nor a few extra R senators should affect the ability of Majority Leader Mitch McConnell to muster 60 votes, given substantial Democratic support, so nothing should change on that front. It will pass, or not, during the lame-duck term. And there's no other significant federal #cjreform on the horizon, outside of whatever the President and Kim Kardashian may be cooking up.

At the Texas Legislature, changes were significant, but not seismic, and not entirely in reformers' favor. Two R senators lost their seats, including Republicans' most ardent criminal-justice reformer, Konni Burton. That's a blow. She's responsible for the most important if unheralded decarceration legislation (increasing property theft thresholds) that Texas ever passed.

The other R senator who lost, Don Huffines, supported abolishing the Driver Responsibility surcharge and eliminating red-light cameras, but otherwise shied away from criminal-justice reform issues and was never much help, though neither was he a hindrance. He was willing to be the fifth or sixth R vote in the Senate for a justice-reform measure; Konni was willing to be the first.

With Dan Patrick, John Whitmire, and Joan Huffman all returning, the senate will feel quite familiar on the #cjreform front. Those players' opinions and dynamics dominate all the major justice-related issues on the eastern side of the capitol and have not changed.

On the House side, Democrats picked up 12 seats. That exceeds (my) expectations and puts them within striking distance - nine seats - of taking control of the lower chamber in 2020 prior to redistricting. It also means that, if the Dems caucus together, any nine Republicans who want the lower chamber's top committee chairs could collaborate - as did Joe Straus and his lieutenants - and choose a Speaker of their own. That prospect was unthinkable when there were only 55 Democrats in the House. But I could imagine ten Republicans bailing on a Dennis-Bonnen speakership, for example, and deciding to place their own stamp on history. Time will tell.

Regardless, criminal-justice reform came out looking pretty good when one considers House elections. The Rs who were outspoken justice-reform supporters like James White or Matt Krause all came back. Indeed, Krause successfully fronted the topic as a wedge issue to blunt a challenger, Nancy Bean, who herself is a long-time justice-reform advocate, dating to the earliest days of the 21st century Texas reform movement.

Across the state, a number of Republicans in hot races turned to the Legislature's justice-reform record as evidence of bipartisanship and/or moderation, including Joan Huffman touting her support for correctional mental-health budgets. And R District Attorney candidates in both San Antonio and Dallas came off more sympathetic to reform than any Republican candidates for those offices in living memory.

Speaking of Dallas, even though national reformers opposed John Creuzot for DA in the primary, some of those same groups are now anointing him as America's next "progressive prosecutor." While that may be extreme - I don't expect Judge Creuzot suddenly to transform into Philadelphia's Larry Krasner - he did promise that within 90 days of taking office he would produce a plan for what the DA's office could do to reduce mass incarceration. Grits is very much looking forward to seeing that document.

Although no statewide elected officials were dethroned, judicial elections did reveal a chink in the Republicans' partisan armor: Democrats won 30 of 32 contested seats on the intermediate courts of appeal, including 19 previously held by Republicans. Reported the Texas Tribune, Democrats appeared to "flip four major appeals courts, taking back majorities in the judicial districts that serve Austin, Dallas and Houston. The 5th Court of Appeals, based in Dallas, has not elected a Democrat since 1992; on Tuesday, the 13-member court was set to elect eight Democrats, including a Democratic chief justice." As a result, seven of the fourteen intermediate courts of appeal in Texas now have Democratic majorities.

Further, Dems swept all 59 judicial seats at play in Harris County, including nineteen black women elected. All the misdemeanor court judges who opposed the civil-rights suit against the county over unconstitutional bail practices lost (as did one R who supported reform). And a new, 27-year old Democratic county judge was elected who wants to settle the bail suit, and boasts a legitimate #cjreform record (along with a poli-sci degree from Stanford and a law degree from Harvard). That may make the denouement of that complex drama unfold differently than it would have otherwise. The two sides will soon be briefing the 5th Circuit headed toward a final conclusion. At a minimum the contents of those briefs may now be quite different, and a settlement now seems more likely.

But outside of Harris County, from the perspective of criminal-justice reform in Texas, nothing major changed. Republicans still hold all the levers of control. Dems gained a little more influence in state government, but not yet real power. However, momentum for reform wasn't stifled, and on bail reform, in particular, a big  obstacle was removed.

We're in a transitional moment in national and state-level politics, and yesterday's elections had the feel of a violent maelstrom. But in the center of it, there was a calm surrounding prospects for bipartisan justice reform. Momentum for #cjreform didn't improve by leaps and bounds, but neither was it drastically harmed. In 2018, Texas candidates in both parties tended to view justice reform as a popular crossover issue with legs. That's a big change from just a few years ago, and the import of that transformation shouldn't be underestimated.

RELATED: For those interested, compare this item with Grits' pre-election analysis.

Monday, November 05, 2018

Ohio voters may follow Oklahoma's lead to reduce drug penalties, fund treatment

Following Oklahoma's lead, Ohio appears poised to reduce penalties for low-level drug possession (not dealing) at the ballot box. See coverage from Vox, which summarized the provisions in Prop 1 thusly:
  • Prevents classifying offenses for using, possessing, or obtaining illicit drugs, such as heroin, fentanyl, cocaine, or meth, as felonies, instead requiring they be treated as misdemeanors.
  • Prohibits jail or prison time for such offenses, unless it’s an individual’s third offense, or more, within two years.
  • Allows individuals who were previously convicted of such offenses to ask a court to reduce their conviction to a misdemeanor.
  • Aims to reduce the use of prison time for non-criminal probation violations.
  • Applies financial savings to addiction treatment programs and crime victim funds.
  • Allows people in prison, except those incarcerated for murder, rape, or child molestation, to seek sentence reductions up to 25 percent if they participate in rehabilitative programs, up from 8 percent under current rules.
The most recent polling shows the measure with a 48-31 advantage among Ohio voters, with 21 percent undecided. Unless every undecided voter breaks against it, when everyone else supported it by a 5-3 margin, that seems likely to pass. See coverage from the Cincinnati Enquirer, and the impressive list of supporters endorsing the measure.

With voters in red and swing states taking the lead, maybe this issue will become less scary for Texas legislators, who cannot rely on ballot initiatives to take tough decisions off their plates. The same felony-to-misdemeanor move makes loads sense for Texas, both from a fewer-prisons and a how-to-pay-for-treatment standpoint, and has for many years.

The political climate is changing in Texas regarding marijuana, and it won't take too many states' voters passing these sorts of measures before it changes on de-felonization of harder drugs. From both an economic perspective and a crime-prevention standpoint, it just makes too much darn sense.

UPDATE: Contrary to pre-election polling, this measure was defeated by a 63-37 margin.

Thursday, November 01, 2018

Build on momentum to end Texas debtors prison practices

Your correspondent has been openly pleased with the success of Texas' debtors-prison reform legislation from 2017. This will always be one of Grits' favorites because the House bill author, state Rep. Terry Canales, told the Criminal Jurisprudence Committee when he laid out the bill that many of the ideas behind it came from a post on this humble blog.

So I was pleased to see the site Edinburg Politics recently published an extended feature on the legislation, and the Rio Grande Valley legislators who championed it. As Grits had written previously, the legislation has overachieved, actually boosting collections, contrary to predictions by naysayers, most prominently municipal judges, who predicted all sorts of dark and terrible consequences if it were to pass.

But it's worth emphasizing that debtors-prison reform in Texas is a half-done task. The state has taken some of the most comically absurd elements out of its Class-C-fine system, but it's still grinding up hundreds of thousands of Texans every year who are too poor to pay.

According to data presented to the Lege by the Office of Court Administration (which, oddly, is only presented for 11-month blocs, September through July of each year), the total number of warrants issued for Class C misdemeanors, including for failure to appear, declined by 37.5 percent since the 11 months ending July 2015. But in the comparable period ending July 2018, there were still 1.25 million warrants issued!

In addition, the number of arrest warrants issued for failure to pay Class C fines declined over the same period, from about 700,000 in the 11 months ending July 2015 to ~500,000 for the comparable period in 2018.

But half-a-million arrest warrants issued for failure to pay in fine-only offenses is still an amazing number!

The number of people who sit out their fines and fees in jail because they cannot pay has also been in decline. In the 11 months ending July 2015, they totaled 620,491; for the comparable period in 2018, it was 456,220.

That pro-rates to about a half-million people in FY 2018 sitting out their fines in jail - the definition of a 21st century debtors prison.

By contrast, the new provisions installed in HB 351/SB 1913 are still being used sparingly. Judges were given greater authority to waive fines, but the increase from the 11 months ending July 2015 (24,876) to the comparable period in 2018 (44,603) pales in comparison to the number of people sitting out their fines in jail. Even after the reforms, ten times as many people were jailed for justice debt as had it waived.

Similarly, the number of people benefiting from increased access to community service, while not insignificant, was still small potatoes.

So the 2017 legislation was a good start, but it has also served to underscore how far we have to go.

Thankfully, there's strong momentum to build on these reforms. This year in June, both the Republican and Democratic state parties endorsed platform provisions to cease arresting drivers who cannot pay for Class C misdemeanor fines, a measure proposed by state Rep. James White in 2017.

Then, last month, a survey by the Texas Office of Court Administration found that 66% of Texans disapprove of jailing defendants over fines and fees when they cannot pay. And new research has lately emerged showing that cities which rely on low-level fines as revenue sources tend to solve more serious crimes at lower rates.

So entering the 2019 session, legislation to use commercial collections instead of incarceration to enforce Class C misdemeanor debt begins with a genuinely bipartisan pedigree, evidence-based backing, and 2-1 support from the Texan public. It's hard to think of a better-positioned reform bill headed into the session.