Top Texas #CJreform Stories of 2018

Passage of the First Step Act was clearly the biggest criminal justice policy story of 2018, and congrats to all the Texans who were a part of that. But Grits wanted to take a moment to identify the biggest state-level Texas criminal-justice stories of the year. Here's the list I came up with. Let me know what else you think should have been included.

1. Elections: Creuzot, Gonzalez, in, Abel Reyna, Nico Lahood out; Harris Co. and appellate courts sweep Democrat: Texas statewide races failed to "turn blue," but Harris and Fort Bend County went solidly Democratic, ousting numerous, longstanding Republican incumbents and installing supporters of bail reform. In Dallas, Democrat John Creuzot defeated Greg-Abbott appointee Faith Johnson on a platform of reducing mass incarceration, while in San Antonio, defense attorney Joe Gonzalez defeated the enigmatic Nico Lahood in the primary and went on to win the general election.

2. TDCJ Youthful Offender program upheaval: The Texas Department of Criminal Justice was caught out of compliance with the Prison Rape Elimination Act when adult inmates were able to access and have sex with 17-year olds housed in the agency's Youthful Offender Program. The agency fired the staff involved and moved the program to Huntsville. But it all could have been avoided if the Legislature had passed raise-the-age legislation approved in the Texas House last session. County jails across the state face similar challenges separating 17-year olds by "sight and sound" from adult inmates.

3. Bail reform litigation roller coaster: Bail reform litigation in Texas saw many ups and downs. A federal district judge in Houston issued a favorable ruling for reformers, which a 5th Circuit panel scaled back temporarily pending the court's final decision. New leadership in Harris County may settle the suit rather than litigate further. But another suit in Dallas is challenging pretrial detention, including in felony cases, on essentially similar grounds. All this sets up 2019 as a decisive year, whether the outcome is determined in the courts, or if the Legislature steps up to disallow unconstitutional bail practices in the session about to begin.

4. Austin Justice Coalition and allies win accountability victories in police contract, new oversight ordinance: Advocates who had stalled a new union contract at the Austin Police Department last year doubled down on that new leverage to secure new transparency and accountability reforms. Observers say it's the first time police-reform advocates have successfully used leverage from a defeated union contract to push accountability reforms.

5. Firing TJJD Ombudsman Debbie Unruh: In January, Governor Greg Abbott responded to allegations of mistreatment of juveniles incarcerated at the Texas Juvenile Justice Department by firing the executive director and, more problematically, Ombudsman Debbie Unruh, whose work at TJJD units first exposed the problems reported later by journalists. It was an ignominious way to start the year.

6. TDCJ begins to give elderly inmates dentures after HouChron story: Keri Blakinger at the Houston Chronicle without question would merit a Texas Justice Journalist of the Year award, if such a thing existed. Her story on TDCJ denying dentures to toothless, elderly inmates ended with an amazing outcome: The agency agreed to change its policy and began delivering 3D-printed dentures to inmates by this fall. Many journalists go their whole careers without such an accomplishment. Great job.

7. Mike Ward faked stories: On the other end of the journalistic spectrum, the primary person who covered Texas prisons for the last two decades - and the only reporter for many years to attend TBCJ board meetings - resigned after it was discovered he fabricated quotes in dozens of stories after leaving the Austin Statesman to become Austin bureau chief of the Houston Chronicle. Almost as soon as other reporters began covering that beat - particularly Keri Blakinger, mentioned above - a wave of major stories came out. Grits considered Ward a "sycophant to power" and was unsurprised, if dismayed, by his dishonesty.

8. Junk-science writ doing the work: Bite-mark testimony toppled: Texas' junk-science writ had one of its best years yet, helping overturn bite mark evidence and playing a central role in courts reevaluating blood spatter evidence, forensic hypnosis, and more. Texas increasingly is emerging at the forefront of forensic reforms, in part because of the new-science writ and in part because we have an active death penalty, so at least those defendants have access to attorneys to lodge challenges against bogus evidence in their cases.

9. Bipartisan justice reform agenda emerges from party platforms: The group I work for, Just Liberty, spearheaded a campaign to install criminal-justice reform planks into both Texas state party platforms, securing agreement on issues from raising the age of adult accountability to reducing marijuana penalties and eliminating arrests for people who can't afford to pay traffic-ticket debt.

10. Governor, GOP platform endorse marijuana reform: In a debate with his Democratic opponent heading into the election, Gov. Abbott endorsed reducing penalties for user-level marijuana possession, suggesting the Legislature lower the charge for possession of up to two ounces from a Class B to a Class C misdemeanor. Legislation to do just that has cleared committee several times since 2005, but never received a floor vote in the Texas House. Abbott's endorsement gives the bill much more momentum.

And here are some "honorable mention" stories that deserve to be remembered as the calendar turns.

Dallas cops indicted for murder: In her final two years in office, Republican District Attorney Faith Johnson prosecuted more cops for misconduct not just than any Democratic DA in Texas, but more than any prosecutor in the entire country. It didn't save her in Texas' last straight-ticket voting election, which she lost to John Creuzot. But indictments in the Roy Oliver and Amber Guyger cases were unusual and significant.

Class C Misdemeanors emerge as reform priority: Lots of small action on this topic around the state. Both political parties urged limits on arrests for Class C misdemeanors and failure to pay traffic tickets in their party platforms. First data showed 2017 debtors-prison legislation was a rousing success; Fort Worth, Austin, ended warrant roundups; Austin pioneered changes to limit Class C arrests.

Heat litigation settlement leaves unanswered questions: Texas must now install A/C at the Wallace Pack Unit after TDCJ settled years-long 8th amendment litigation. The question becomes, will those terms ultimately extend to the whole system? It's unclear at the moment, but there's additional litigation in the pipeline that may clarify.

TDCJ guards setting up inmates with disciplinary cases: Another Keri Blakinger special, TDCJ staff were caught fabricating evidence to accuse inmates of disciplinary cases, in part to meet an illegal quota of disciplinary cases at certain units. People are getting fired and indicted over this.

More than one percent of adult males in Texas still incarcerated: Texans in Washington were full of boasts over Texas' decarceration efforts, but the Lone Star State remains one of the nation's top incarcerators, with far more people in prison per capita than other large U.S. states.

Active death penalty explains efficacy of Texas' junk-science writ

There are three reasons that Grits expects the Lone Star State to emerge as the epicenter of forensic reform over the coming couple of decades. First, our Forensic Science Commission has altered the terms of debate among legislators and stakeholders about how to react when errors and bad science are discovered. I may not agree with everything they put out, but they've educated stakeholders here to a much greater extent than in most other states.

Second is Texas' junk-science writ, as discussed on Wednesday in the context of the Court of Criminal Appeals' Chaney decision invalidating bite-mark identification testimony. Texas and California are the only two states so far to expand habeas corpus in this way. (Comparable legislation has never been pushed in Congress, but that's a Texas innovation they should copy.)

These two Texas reform measures have been widely praised. But together they would be insufficient to rigorously reevaluate the array of questioned forensics identified by the National Academy of Sciences and the disbanded Obama-era president's commission on forensics. Texas courts have refused to exclude such testimony in front-end suppression hearings under the Daubert standard. And courts have discretion which habeas petitions to consider, so there's no way to compel them to take up these difficult cases.

The main reason Grits can confidently predict Texas will emerge at the forefront of forthcoming forensic debates is that we still actively use the death penalty. That's proven to be a critical factor because, as I'd observed previously:

In Texas, capital cases are the one sliver of indigent defendants whose appeals are all paid for by the state, meaning those defendants have access to attorneys to file a state habeas corpus writ. So it makes sense that many of the most high-profile, early uses of the junk-science writ would come in death-penalty cases. By contrast, plea the case to life without parole, and a defendant accused of the same crime with the same evidence would have no access to an attorney at the habeas corpus stage.

I discussed exactly this dynamic with Amanda Marzullo, the executive director of the Texas Defender Service, a nonprofit that represents capital-murder defendants, in a segment on the August episode of Just Liberty's Reasonably Suspicious podcast. Check out that conversation here:


This explains why California's writ hasn't as yet had as big an impact: Their capital punishment system is moribund and few executions are set, so there isn't the constant stream of deadlines requiring courts to act. These days, quite a few death-penalty cases include junk-science writ claims, and the Court of Criminal Appeals is required to consider all of them.

It's not inevitable that death-penalty cases will dominate the initial round of Texas junk-science writs. Instead, it's a function of which indigent defendants have access to counsel to challenge bad evidence in their cases.

Judge Elsa Alcala on the Court of Criminal Appeals has suggested the Legislature should extend the right to counsel to habeas corpus proceedings in ineffective assistance of counsel cases. If the Legislature were to do that for cases challenging old forensics under the junk-science writ, perhaps expanding the Office of Capital and Forensic Writs to take on the function, then junk-science writs would arise in a wider variety of cases.

Eight states, according to Judge Alcala's counting, appoint counsel for every indigent habeas-corpus petitioner. If indigent habeas petitioners in Texas had such access, capital cases wouldn't dominate the junk-science writ process.

As things stand in Texas, with forensics disproportionately being challenged in capital writs, Grits won't be surprised if it takes another 20 years or more for all of the dubious forensics identified by the NAS to be challenged and either confirmed or dismissed through the junk-science writ process. But at least we have a process. Most states and the federal government do not.

Sharon Keller, bite-mark evidence, and the end of innocence forestalled

The judges' conferences over the Steven-Chaney bite-mark case, according to reliable sources, was the most contentious at the Texas Court of Criminal Appeals since the fight over Ex Parte Robbins. Both those cases involved Texas' first-in-the-nation junk-science writ, for which Chaney's victory was a landmark event. See coverage from Texas Monthly's Michael Hall, the Texas Tribune, and the national Innocence Project.

It's significant that Judge Barbara Hervey wrote the majority opinion, which amounts to a straight-forward, by-the-book application of Texas' junk-science writ. Grits has criticized Hervey in the past for making public declarations about forensic science that put her on the side of reformers but routinely voting with the Government Always Wins faction in her court opinions. This time, however, the former member of President Obama's now-disbanded forensic commission came through, bringing Judge Keasler with her to split the GAW faction in two. (Keasler suffered a heart attack this year, btw; he will not finish out his term because of his age.)

Grits believes this case will prove important for a number of reasons, and not just for Mr. Chaney or others convicted in the past based on bite-mark evidence.

Taking a bite out of junk forensic science
There are two, major direct implications to the Chaney case: First, bite-mark testimony in the future may only exclude people, or say the result is undetermined. They cannot any longer imply bite-mark evidence points to a specific defendant. This is significant. Texas courts hadn't excluded such evidence via Daubert hearings, which evaluate the fitness of expert evidence at trial, despite the Texas Forensic Science Commission recommending courts abandon such evidence. In fact, the CCA had re-affirmed the use of bite-mark evidence as recently as 2012. So Chaney's case accomplished on the back end what Daubert could not on the front, evincing a new model for ridding the justice system of an unreliable forensic method.

Second, old cases where bite-mark evidence was central to defendants' convictions now also could be overturned. This won't be a huge number of cases; often other evidence existed that courts may still find sufficient to convict. But there's little doubt we'll see more bite-mark-based convictions overturned now that Chaney has discredited such evidence.

And there are broader implications. This was the first time the Court of Criminal Appeals has applied the junk-science writ to one of the more widely used, secondary forensic identification techniques criticized by the National Academy of Sciences in their 2009 report, Strengthening Forensic Science: A Path Forward.

We've seen outdated arson science debunked in Texas before the writ took effect, in part because the State Fire Marshal became an avid proponent for reform. Other forensic writs, as with Ex Parte Robbins, involved scientists recanting very specific scientific findings that applied to few other cases, not more common techniques like bite marks, blood spatter, hair-and-fiber analysis, ballistics, or fingerprints, even though all of those came up for criticism in the NAS report.

Now, the court has unanimously disallowed one of these second-tier forensic identification tactics, and they did so based on arguments primed to be applied to other comparative forensics.

For example, Judge Hervey's majority opinion made much of the fact that scientists cannot say for sure bite marks are unique, which is the basis for forensic dentists in the past claiming they could distinguish bite marks to the point of identifying an individual person. However, "Peer-reviewed studies conducted after the publication of the 2009 NAS Report ... now show that the uniqueness of human dentition can never be established within measurement error."

Well, guess what? There's also significant doubt whether firearms each provide a unique signature that ballistics analysts can effectively match. Indeed, it's unproven whether fingerprints are unique, but pretty clear that some partial prints - which is what examiners are usually matching - may not be unique enough to differentiate.

If and when scientists prove ballistics markings aren't unique - or for that matter, partial fingerprints - will the court still be as bold? If peer-reviewed studies begin to cast doubt on these cornerstone presumptions of uniqueness, how many forensic disciplines might fall?

These were not the elements of the Chaney decision being disputed in the concurrences. The entire court - including the whole Government Always Wins faction - was willing to throw out a brand of forensic analysis that's been in use in Texas and nationwide for many decades. That aspect of the decision likely will be overlooked in the wake of the court's debate over actual innocence, but it's important.

The end of innocence forestalled
The reason for the litany of concurrences in the case was Presiding Judge Keller's decision to take the opportunity in her concurrence to call for a new "beyond a reasonable doubt" standard in "actual innocence" cases - a burden only the prosecution must meet at trial. She thinks that, now that defendants have the junk science writ, and the court has recognized false-evidence claims it did not in the past, defendants have other avenues for relief and the bar for actual-innocence claims should be made more difficult to prove.

Only Judge Yeary was even interested in the idea, which was lambasted in separate concurrences from Richardson, Newell, and Alcala. Everyone concerned about these topics should read all these opinions; they're fascinating and my paraphrases won't do the detailed arguments justice.

As Judge Alcala pointed out, for years the "Elizondo" actual-innocence standard Keller wants to heighten was considered nearly insurmountable. But over time, between DNA exonerations and the rise of more sophisticated, persistent defense counsel in the innocence-movement era, more cases began to meet the court's high threshold. Judge Keller liked it better when almost none of them did.

Judge Richardson took the unusual step of calling out Judges Keller and Yeary by name for almost never agreeing defendants have met the actual-innocence threshold, even in instances like the Sonia Cacy arson case where Richardson considered the defendant clearly innocent. One rarely sees appellate judges confronting their peers so directly, but Richardson explicitly critiqued them in his opinion. Yeary responded, adding a second section to his concurrence that clearly was tacked on later in response to Richardson's criticisms.

Judge Keller has not claimed that Original Sin means no one can be truly innocent, but her legal reasoning leads to essentially that result. No one but DNA exonerees where an alternative suspect was identified and then confessed would qualify for an actual innocence designation in Sharon Keller's worldview, and then only if every detail of their story held up under a first-order assumption that all claims by them and any witnesses supporting their case are lies.

Here, Chaney had multiple alibi witnesses, but Keller refused to credit them, even after all inculpatory evidence put on by the state fell apart. There's something a bit mean-spirited and miserly (ungenerous is too tame a term) about Keller's take on Chaney's defense case. I have often portrayed Judge Keller and the GAW faction as wanting the government to win. But sometimes, as here, she almost seems more interested in making sure that the defendant loses - one of those moments, like declaring herself a "pro-prosecution" judge in past campaigns, that casts doubt on her ability to be a neutral arbiter. It's as though she can't stand for Chaney to receive state compensation due to exonerees, and is willing to upend 20 years of her court's own jurisprudence to try to stop that from happening.

If Keller's position prevailed, in a real sense it virtually would be the "end of innocence" in Texas. No one can say the number of exonerated defendants who would meet her new threshold, but it would be very low. The court considers meeting the current standard a "Herculean" task.

Seven other judges, however, were having none of it. Keller's opinions on innocence couldn't garner one additional vote. Even Kevin Yeary did not sign on. Her extremist stance left her weakened on the court as a result, with her core GAW-faction members abandoning her over the conflict and centrists on the court tag teaming to discredit her positions.

As a frequent critic of the Texas Court of Criminal Appeals, I must say, I'm proud of them all, especially Judge Hervey. She showed more leadership in this case than she has in years on the court; her majority opinion was strong. And while I agreed with her critics, even Presiding Judge Keller was expressing her true beliefs here, which I found distasteful but not disingenuous. (She believes some extremely regressive things about the law that even most conservative Republicans do not buy into, but they're her honest beliefs.) This was a good debate and a good outcome.

See prior Grits coverage of the CCA interpreting Texas' junk science writ:

• Bill would allow habeas appeal on discredited forensic science (2009)
• ME testimony false according to science but not Texas law (2011)
• CCA laments 'disconnect' between changing science and reliable verdicts' it helped create (2012)
• Bills would bolster Great Writ for the 21st century, expose prosecutor misconduct (2013)
• Governor signs junk-science habeas bill (2013)
• Godsey: 'Texas now on cutting edge of efforts to free the innocent' (2013)
• Fran Keller released based on refuted junk science (2013)
• SA4 to walk free: New Texas statute combats injustice caused by junk science (2013)
• Interpreting Texas' new junk science writ (2014)
• CCA: Junk-science writ covers bad scientists as well as bad science (2014)
• Texas' new junk science writ called 'elegant' and 'phenomenally important' (2014)
• Backstory: Texas Observer on the San Antonio Four (2014)
• San Antonio Four case, Texas junk science writ lauded in national press (2014)
• Neal Robbins writ headed back to CCA after Lege ostensibly passed fix
• Podcast: Tweaking Texas' junk science writ (2015)
• Previewing oral arguments on Texas' junk-science writ (2015)
• Difficult-to-read tea leaves from oral arguments on Texas' junk science writ (2015)
• Abbott signs bill codifying broad reading of Texas' junk science writ (2015)
• Court of Criminal Appeals judges call out colleagues' judicial activism on junk science writ (2016)
• Confronting junk science and judicial activism at the Court of Criminal Appeals (2016)
• Texas, California 'junk science writs' should stir bills in other states (2016)
• Don't gloat that Texas is ahead on forensic science reform (2016)

Junk science writ takes out bite-mark evidence, Understaffing let prisoner's flesh-eating bacteria linger without medical care, Christmas while mommy's in jail, and other stories

A few odds and ends headed into the holiday:

Junk science writ takes out bite-mark evidence
In the Steven Chaney case, Texas' junk science writ worked exactly as it was intended. Texas courts have refused to exclude bite-mark evidence on the front end through Daubert hearings. But the junk science writ gave wrongfully convicted defendants an avenue to challenge false convictions on the back end. And it provided the Texas Court of Criminal Appeals a vehicle to declare junk science invalid in a way that applies to the rest of the system going forward. That's what happened here. Now, bite mark evidence cannot be portrayed as "matching" evidence to a defendant, and past cases where such evidence was a) overstated and b) pivotal to the case could result in more convictions being overturned. This case also lays out the model, and the reasoning, for how other "comparative" forensic science may be challenged in the future. See the majority opinion, and all opinions and briefs from the case here. This will definitely be a topic featured on January's Reasonably Suspicious podcast.

Blood-spatter false conviction redux
Speaking of junk science, Pam Colloff has another feature story on a likely false conviction based on junk-science blood-spatter evidence. Readers will recall Grits interviewed Colloff on the topic on the podcast earlier this year.

HRO predicts justice issues
The House Research Organization issued a brief predicting possible issues the Texas Legislature could tackle, including a bevy of criminal justice reforms.

Understaffing let prisoner's flesh-eating bacteria linger without medical care, says lawsuit
TDCJ has been sued because the Gist state jail was too understaffed to take a prisoner suffering from flesh-eating bacteria to receive medical care, Keri Blakinger reported.

Lege should close 'dead suspects loophole,' and more
Reacting to a news story from Reason criticizing Texas for withholding public records surrounding criminal cases where the suspect is dead, recently I argued for greater transparency for law enforcement in a Twitter string.

Litigation, legislation, pushing TDCJ toward climate-controlled prisons
At the Dallas News, Lauren McGaughy offered an update on litigation related to TDCJ's failure to cool prisons in the summer or heat them in the winter. (Kudos to the headline writer - nicely done!) The agency stopped recording indoor temperatures a few years ago at one unit she investigated. They say it's because it's unnecessary, but you'd have to be a fool to believe it wasn't because prisoners began suing over conditions. "Inmate’s lawyers and their families believe the state is deliberately stifling the information. If officials don’t know the truth, advocates say, they can’t be held accountable for it," wrote McGaughy. E.g., at the Hutchins state jail this summer, the heat index at one point reached 136 degrees, on a 108 degree day. How hot it was inside is anybody's guess. Legislators, she declared, are considering filing bills to require climate regulation the way the state does for county jails. But it's hard to imagine budget writers paying for system-wide A/C unless a court forces them to do it. What they could do much more easily is require TDCJ to record indoor temperatures. You can't manage what you cannot measure.

Who is a "juvenile," who is a "child," who is a "minor," and where do and don't those terms intersect?
There's a new report on the topic, as well as the subject of juveniles charged with Class C misdemeanors, from the Office of Court Administration. This goes on Grits' holiday reading list.

Thinking about prison food while preparing holiday dinner
After TDCJ slashed prison-food budgets a few years back, my buddy Tom Philpott - who writes on the politics of food and agriculture for Mother Jones - and I bandied about the idea of doing a joint deep dive on Texas prison food, but neither had time when the other could do it. I've always thought, though, there's the making of a good story there, with lots of data to analyze and paper trails to follow, including daily, nutritionist-approved menus available for analysis. At Reason, we find a story titled, "Prison Food is a National Tragedy," so I'm glad someone is delving into the topic, if not the deep dive Tom and I imagined. (Note to Reason editors: The story needed a Christmas-dinner hook!) As a bonus, some other journalistic offerings I hadn't seen from recent years are linked in the story. In Texas, the issues at prisons and jails are quite different. In prisons, it's government doing things on the cheap, with the Legislature slashing food budgets to levels beyond reason or simple decency. In jails, problems often arise thanks to un-wise privatization gambits.

Christmas in jail
Read Keri Blakinger on Christmas in jail.

Christmas while mommy's in jail
Speaking of Christmas in jail, this time of year it worth taking a moment to remember children of incarcerated parents, particularly those whose parents are arrested and jailed this weekend just before the holiday. The Dallas News last year created a short video about what happens to kids when their caregiver is arrested. Grits hopes we'll see legislation requiring the state to keep track of kids affected by incarceration and connect them to services and opportunities. Watch it and give a thought to how we could do things differently:

Takeaways for TX legislators and national #cjreform activists on the #FirstStepAct and bipartisan reform

Grits has been involved in passing bipartisan criminal-justice reforms at the Texas Legislature since 2001, so is excited to see the First Step Act passed in Congress.

There are many lessons to be learned here, but let's quickly highlight a few takeaways for two audiences in particular: national criminal-justice reformers and conservative Texas legislators.

What national #cjreform supporters should take away from the First Step Act:

• Bipartisan reform isn't just some weird thing that happens in red states like Texas. The strategy is portable, and will work in Congress, too.
• Conservatives will support incremental justice reform, in some cases enthusiastically, if they can do so on their own terms without agreeing to a more comprehensive liberal agenda.
• Conservative legislators will respond to conservative messengers. Matching messengers and messages to targets is an important part of bipartisan work: Some folks can only only hear messages from people already in their camp. So cultivate those messengers!
• Politics remains the art of compromise, the art of the possible. Government doesn't always function well, but when something does happen, often everyone leaves the table with half-a-loaf. That's by design, and it's okay. You can always come back. Which brings us to ...
• First steps imply second steps. Every legislator voting "yes" vote on the First Step Act has momentum for their next pro-#cjreform vote, so build on it.

What conservative Texas legislators should take away from the First Step Act:

• Washington mimicked Texas' approach on bipartisan reform: Texas should continue down the same path. Lone Star legislators should start with areas where the two party platforms agree on a #cjreform agenda.
• Conservative constituencies turned up big for the First Step Act, from the Texas Public Policy Foundation to Freedom Works to Prison Fellowship to the American Conservative Union. In 2019, #cjreform is all of a sudden a conservative priority, if in part by default because legislation on other topics cannot move in Washington.
• With Donald Trump's full-throated endorsement of the First Step Act, and with his son-in-law championing it in his administration, conservative Republicans supporting #cjreform are aligning themselves with the president headed into the next election.

Let's Talk: A compilation of #cjreform interviews

Grits has been enjoying the interviews for Just Liberty's Reasonably Suspicious podcast and  compiled them all in one spot, plus some of the interviews done on Grits (with apologies for the lesser audio quality) before we moved to a format with better production values. I'd first published this in February and thought I'd update it at year's end. Enjoy:

• Ron DeLord of the Combined Law Enforcement Associations of Texas, Chris Perkins of the Austin Police Association, and Chas Moore of the Austin Justice Coalition discuss the battle over installing accountability reforms in and around the Austin police contract. 
• Kathy Mitchell on new police accountability reform measures in Austin.
• Susanne Pringle of the Texas Fair Defense Act gives a primer on the status of Harris County bail litigation as of October 2018.
• Audio of Dallas DA candidate debate between John Creuzot and Faith Johnson.
• Pamela Colloff, writer for ProPublica and New York Times Magazine discusses the apparent false conviction of former high-school principal Joe Bryan based on faulty blood-spatter evidence.
• Texas Republicans for Justice Reform: Our special, hour-long podcast aimed at promoting justice reform in the state Republican party platform at the state convention featured interviews with Right on Crime Director Derek Cohen, Conservative Coalition Research Institute Director Jason Isaac, outgoing Texas Young Republican Federation Chairman John Baucum, Charles Blain from Empower Texans' Restore Justice Project, Heather Fazio of Citizens for Responsible Marijuana Policy, and David Safavian, of the American Conservative Union Foundation.
• Democratic Convention Special: This special podcast promoted #cjreform planks in the Texas state Democratic platform in 2018. It features original music and interviews with state Rep. Gene Wu, Austin Justice Coalition executive director Chas Moore, as well as Sukyi McMahon and Kathy Mitchell with Just Liberty.
• Susanne Pringle: The legal director of the Texas Fair Defense Project discusses the ongoing civil rights litigation over unconstitutional bail practices in Harris County as of April 2018.
• Kent Whitaker, father and only surviving victim of death-row inmate scheduled for execution February 2018 pleads for his son's life.
• Ron DeLord, founder of the Combined Law Enforcement Associations of Texas and lead negotiator on the Austin police union contract.
• Peter Neufeld, co-founder of the national Innocence Project, discussing prospects and barriers to forensic reform.
• Brandi Grissom, former Austin bureau chief at the Dallas Morning News on the Texas Juvenile Justice Department sex-abuse scandal she covered as her final story.
• Sam Sinyangwe, co-founder of Campaign Zero and director of the Mapping Police Violence Project discussing police violence and the Austin police-union contract.
• Emily Gerrick, staff attorney at the Texas Fair Defense Project, discussing legislation reforming debtors prisons and what Texas judges can do to reduce incarceration for debt.
• James White, Chairman of the Corrections Committee in the Texas House, discussing the 2017 legislative session and future prospects for sentencing reform.
• Becky Bernhardt, executive director of the Texas Fair Defense Project discusses Harris County bail-reform litigation to which her group is a party.
• Amanda Marzullo, executive director of the Texas Defender Service, making the case for a capital appellate public defender.
• Eva Ruth Moravec, reporter covering police shootings of unarmed people in Texas talks about her beat.
• Amanda Woog, academic discussing her project gathering data on Texas police shootings and deaths in custody. See an earlier interview about her project.
• Sandra Guerra Thompson, law professor at the University of Houston discussing her new book, Cops in Lab Coats.
• Erica Gammill, executive director of the Prison Justice League discusses the problems and opportunities posed by organizing prisoners directly.
• Amanda Marzullo, policy director of the Texas Defender Service, discusses implementation of the Michael Morton Act.
• Amanda Marzullo, policy director of the Texas Defender Service, discusses what's next after 2015 grand jury reforms.
• Amanda Marzullo, policy director of the Texas Defender Service, discusses the interplay between the Legislature and the Court of Criminal Appeals regarding Texas' junk-science writ, as well as 2015 legislation requiring prosecutors to notify defense when seeking an execution date.
• Becky Bernhardt: On excessive caseloads of attorneys representing indigent defendants.
• Jennifer Laurin, UT law professor, discussing prosecutorial misconduct and oversight.
• Jeff Blackburn, Amarillo attorney and former legal director of the Innocence Project of Texas, discussing traffic tickets as local revenue generators.

#FirstStep Act an early Xmas present for reformers; prison, jail guards' on-the-job lies; reformer DA politics, and other stories

A browser-tab clearing roundup of items Grits has been following this week that merit readers' attention:

First Step Act an early Christmas present for #cjreformers
Here's a couple of good analyses of how it passed and a summary of what's in the bill. Critics say the reforms are modest and we're at the "ten yard line." True enough. But as with a football team, winning drives in politics require stringing together small, sequential victories. Gain four yards per play and you move the ball down the field. But one big setback or turnover can spoil it! Get ten yards, you get a new set of downs, and you get the chance to do it again. That's how the First Step Act should be viewed, as its name implies. Perhaps more important, even, than what's in it, is the vote template created in Congress for passing future reform bills. Replicate it, or some close iteration, and maybe more good stuff can pass.

TDCJ guard convicted for fabricating evidence vs. inmates
Though he will face no jail time, a prison guard was convicted thanks to Keri Blakinger's reports about staff setting inmates up with fake disciplinary cases. Between that outcome and toothless Texas prisoners getting 3-D printed teeth because of her reporting, plus a dozen or more other major scoops over the course of the year, she's having quite a run.

Video: Dallas jail guards faked log entries for period while prisoner died
Guards at the Dallas jail faked logs to show that they'd complied with state requirements to check on a troubled inmate face to face once every thirty minutes, and he died during the period they were doing something else instead of making their rounds. The guards are under investigation. No one has been fired or prosecuted so far.

Police reform in Big D?
The killing of Botham Jean by Dallas police officer Amber Guyger has reinvigorated the push for police oversight in Big D. The Texas Observer covered recent developments, and provided a link to this excellent reform plan being promoted by advocates.

Give departing DA credit for prosecuting police shootings
The Dallas News has a story out which strikes Grits as odd, voicing complaints that Dallas DA Faith Johnson has not yet prosecuted two high-profile police-brutality cases. But John Creuzot takes office in January and he can do it. To me, the real story, as Johnson boasted on the campaign trail, is that the Republican DA and Greg-Abbott appointee has prosecuted more police officers during her tenure not just than any Democrat DA in the state, including Texas' so-called "progressive" DAs, but more than any other prosecutor in the nation. As she told the audience in a candidate forum co-sponsored by Just Liberty:


Indeed, Faith Johnson has prosecuted more cops for shooting people in two years than former DA Craig Watkins, who criticized her in the Dallas News story, prosecuted in 8. For my money, she should get credit for that on the way out the door. If there are extant cases, that's Judge Creuzot's job to make those decisions. And I hope he will continue to be at least as aggressive on police-misconduct cases as she was.

Exonerees hopeful for conviction-integrity unit changes
A more justified criticism of Faith Johnson is that her Conviction Integrity Unit was disempowered within the office and the appellate division had too much say, meaning few innocence cases garnered the office's support. This is a common structural flaw; CIUs should report directly to the elected District Attorney. Exonerees are hoping that will change under John Creuzot. Me too.

Rockwall commissioners misplace blame on jail costs
The Rockwall County Commissioners Court recently held the Sheriff's feet to the fire for overspending on overtime to staff a too-full jail. But when the jail is full, it's not the Sheriff's fault, it's the DA's and judges. The commissioners court's ire was misplaced. As of 12/1/18, a whopping 84% of the Rockwall jail population were pretrial defendants who've not yet been convicted but simply couldn't make bail. That's way too high, Make your local officials enact bail reform, watch the jail population go down, and the Sheriff won't have to spend so much on overtime. You're welcome.

Interviewing Krasner
I've been going on for a while about the "Krasner memo" from Philadelphia DA Larry Krasner and how the first-of-its-kind document paved the way for holding prosecutors accountable for mass incarceration in ways which were not possible before. National advocacy groups followed up with a report building on that work, which we discussed in the Top Story segment of the latest Reasonably Suspicious podcast. So I was interested to hear this podcast interview with the Philly DA discussing his early days as a reformer. I know I'm not the only one watching what's going on there closely.

From the academy
Finally, here are a few academic items I wanted to flag for future reference:

• The uncertain future of forensic science
• What the feds can do to rein in local mercenary criminal justice
• What jurors should know about informants: the need for expert testimony
• Informants, police, and unconscionability
• Equitable Gateways: Toward expanded federal habeas corpus review of state court criminal convictions

TX forensic commission punts on drug-field test evaluation

The Texas Forensic Science Commission has completed its legislatively mandated report on the validity of field tests for controlled substances, and it was released today. Here's a first-cut look at what they found.

Let's be frank. Lynn Garcia has led the commission to perform some of the most able and erudite investigations of flawed forensic practices of anyone, anywhere in the United States. She is my friend and I am a fan of hers. This is not their best work.

In the past, when the Commission has been charged with evaluating junk science - e.g., arson, hair-and-fiber, bite marks, blood spatter - they have earned national praise for courageously confronting the problems instead of allowing flawed forensics to go unchallenged, as most jurisdictions choose to do.

In this instance, though, the FSC evaluated a brand of junk science so pervasive to how the justice system operates, and so heavily relied upon by law enforcement, they couldn't bring themselves to recommend it be discarded.

Field tests being used today were developed in the 1960s, we learn in the report. Despite having been around for more than a half century, however, "With respect to scientific reliability, there are very few published validation studies for field tests." Manufacturers of these kits do not publish their own validation data, "thereby raising questions about the veracity of marketing statements."

Indeed, the likelihood of error regarding these tests has been long known: "Under Texas law, confirmatory analysis performed by an accredited crime laboratory is required in order for the evidence to be admitted in a criminal action." Advocates around the country have been calling for a moratorium on their use for years.

The Texas Department of Public Safety and several other agencies no longer use them. However, in a survey conducted by the FSC, prosecutors reported that most agencies in most counties surveyed still used drug field tests.

Speaking of which, one wonders: Why only survey prosecutors? Since the FSC was tasked to evaluate the forensic source of a brand of false convictions - and since all they did for prosecutors is put a survey on a listserv - it couldn't have been that much more difficult to get input from the defense side.

The reason the FSC was asked to do this report is that hundreds of people in Harris County alone have been falsely convicted when they pled guilty in order to get out of jail, even though they would be exonerated many months later when forensic tests came back. People just didn't want to wait months in jail until the labs got around to their sample. One of the best backgrounders on the issue was actually done by a comedian. Check it out, it's worth watching:


In the FSC report, the euphemism for "innocent people falsely convicted" is "Unintended Adverse Consequences in Some Plea Cases." With that framing, they describe how:

The most significant unintended consequence of the widespread use of field drug tests is the extent to which they impact cases resolved by plea agreement.Of the approximately 55,000 seized drugs cases analyzed at the Texas Department of Safety (DPS) each year, examiners testify in less than 1% of the cases. This means the vast majority of cases submitted to the laboratory are resolved by plea.

The survey of prosecutors found that half of "large" jurisdictions (more than 100,000 population) took plea deals without a final lab report; a third of mid-sized agencies did so, while all of the small-county prosecutors entered plea deals based on field tests.

At root, these false convictions are slipping through the cracks because prosecutors push through plea deals without lab testing. Noted the report:

There is no statutory prohibition against accepting pleas without a laboratory test. There is no broad-based rule providing that a laboratory must complete instrumental analysis even where a plea has been reached.  DPS reports that policies with respect to this issue vary from jurisdiction to jurisdiction.  While many jurisdictions require DPS to complete testing even after a plea has been reached, this is not true in all cases.

Regrettably, the Commission declined to recommend such a "statutory prohibition" or "broad-based rule," even though that omission is the primary source of "Unintended Adverse Consequences in Some Plea Cases" (read: false convictions).

Indeed, we don't even know how many false convictions have occurred because "there is no central repository in Texas for drug pleas that were later overturned by contradictory laboratory testing."

Lamentably, DPS has a policy not to perform testing on controlled substances if a plea deal has been reached. "This is not because the DPS laboratory does not appreciate the reliability concerns surrounding the use of field drug tests, but rather as a necessary component of limited resource allocation."

So in precisely the circumstance most likely to produce a wrongful conviction, by policy the agency does not double-check to make sure there wasn't one. Statewide, 1,475 agencies rely on DPS for their forensic testing, according to the report.

Yes, it's because the agency is underfunded. That funding gap is why the Legislature authorized user fees, which the Governor rescinded. But that's cold comfort to the falsely accused person pressured to plead guilty in order to get out of jail.

Nor does the FSC recommend that DPS be required to test cases after plea deals have been reached, although they did advocate that the agency be given more resources.

Rather, the report pins the blame on a dysfunctional bail system rather than suggesting fixes involving the labs or standards of evidence. That's because:

for indigent defendants who cannot afford to post bail but do not pose a risk to public safety, the result of a policy requiring confirmatory testing can be a lengthy jail stays which have severe impacts on economic stability for affected families as well as unnecessary costs for local government.  

At the same time, the report operates under an odd pretense that these low-level drug offenders are themselves a serious safety threat, implying maybe they shouldn't be released pretrial:

Even more important to public safety are cases in which defendants pose a serious risk of re-offending but are released on personal recognizance (PR) bonds after 90 days because lab results are still pending and judges refuse to continue to hold the defendants.  TDCAA survey respondents describe circumstances where they “have defendants out on these PR bonds who commit new crimes because we haven't been able to get them into court.  This is very frustrating to prosecutors, law enforcement and most importantly to the citizens of our county.”

This may have been a moment in the report when the Commission might have benefited from a defense perspective, particularly if they were going to focus on policy concerns instead of scientific ones.

Regrettably, very few of the Commission's recommendations address the fundamental causes of junk-science-based false convictions in these cases, unless you count the suggestion to throw lots of money at crime labs. Grits agrees DPS crime labs need more funding - it's why your correspondent supported user fees passed last session - but money won't in and of itself solve the false-conviction issue.

One solution could be for agencies to simply stop using junk science this unproven forensic method:

In 2017, a number of Texas law enforcement agencies (e.g., Houston Police Department, Pasadena Police Department, DPS state troopers, etc.) announced they wouldno longer use field drug test kits.  These law enforcement agencies cited officer safety and concern over exposure to fentanyl, carfentanil and similarly dangerous substances as the primary rationale for discontinuing the practice. However, not all agencies that have discontinued the practice issued public statements announcing their decisions, making the total number of law enforcement agencies that have abandoned the practice difficult to assess.

However:

For counties that have ended the practice of field drug testing, officers still must make an assessment of whether a particular substance encountered on the scene is likely to be a controlled drug. In Harris County, the criteria to replace field drug testing include but are not limited to: contraband color, contraband texture, the presence of drug-related paraphernalia, demeanor of the suspect, and prior arrests and convictions involving controlled substances of the suspect. It is important to note that relying on officer observations is not a perfect solution, as many of these criteria depend upon the training and experience of the officer.

So, rather than suggest law enforcement cease using junk science field tests, the Commission weakly opined that they should at least follow directions on the packaging. "To the extent field drug tests are still used," according to the report, "they should be subjected to basic quality standards. For example, agencies should ensure against the use of expired reagents, store the reagents in an appropriate environment, and require at least some baseline level of training."

But they knew even as they wrote it that even that would be too much to ask: "because Texas has approximately 1,750 law enforcement agencies of various size and resources, enforcement of these principles poses a particular challenge."

The Commission and law enforcement agencies using this junk science are hoping tech advancements will bail them out before they have to change practices.

There is technology on the horizon - dubbed Raman spectroscopy - that may eventually replace chemical field tests. The report recommended the FSC collaborate with a state bar committee convened by the president-elect of the state prosecutors association to explore it. This is not a perfect solution, the report emphasizes. E.g., the test cannot identify either heroin or pot. Most of its errors, though, are false negatives instead of false positives, according to the report, which is a plus from an innocence perspective.

The failure to condemn the use of inaccurate and unproven forensics is an off-brand misstep for the Commission. Their role is to evaluate science, not policy. Grits had expected more out of this report.

Police union reps sit down with reform advocate for post mortem on Austin-police-contract fight

On December 13, 2017, a contract negotiated between the Austin police union and city management was voted down by the city council in response to a large community uprising led by the Austin Justice Coalition. After nearly a year-long standoff, the sides came to an agreement in November, with the union agreeing to significant new reforms and $10 million per year less than in the previously negotiated contract.

On December 4th, police union representatives Ron DeLord and Chris Perkins sat down with Chas Moore of the Austin Justice Coalition in Grits' dining room to discuss the 18-month-long struggle to install accountability measures in the Austin police union contract. Excerpts from the discussion were included in a segment in Just Liberty's December 2018 Reasonably Suspicious podcast, but here's the full, 38-minute conversation:

For more background, see these prior, related blog posts and podcast segments:

• Union contract fight gave Austin advocates leverage to improve police oversight
• Austin's police contract among worst in nation from accountability standpoint, says Campaign Zero co-founder
• Podcast: Police unions, collective bargaining and accountability (three segments)
• Interview: Campaign Zero's Sam Sinyangwe
• A primer for police union leaders on 'making the guilty innocent' after high-profile incidents
• Interview: Ron DeLord on the Ferguson Effect, police pensions, and why he considers Saul Alinsky a major influence

Find a transcript of our conversation below the jump.

Podcast excerpt: TX Court of Criminal Appeals hears arguments about when it's okay to electrocute pro se defendants

James Calvert is a mentally ill capital murder defendant who allegedly murdered his ex-wife on Halloween night in 2012. He represented himself at trial in Smith County, Texas and was sentenced to the death penalty. Among other remarkable elements of the case, Mr. Calvert was shocked with a 50,000 volt stun belt during the trial for refusing to obey the court's demands. In addition, Judge Jack Skeen, who presided over the trial, repeatedly made negative comments about Mr. Calvert and the evidence he presented. Many observers believed Calvert should never have been allowed to represent himself in the first place.

In September, the Texas Court of Criminal Appeals heard oral arguments in Calvert's case, delivering perhaps the clearest window yet into the issues that may decide his fate. On the December 2018 episode of the Reasonably Suspicious podcast, my co-host, Texas Defender Service Executive Director Mandy Marzullo, and I reviewed highlights from oral arguments and discussed key issues in the case. Because of high levels of interest in the case, particularly in Grits' hometown, I've excerpted the podcast segment dealing with the case; listen to it here:


For a transcript of of the segment, go here.

And by the way, if, like me, the story about shocking a defendant with a 50,000 volt stun belt left you wondering, "What kind of company manufactures such a torture device, and how is there a market for such a thing?," here's a two-decade old Washington Post story offering some background, using a Texas case study, of course.

Federal legislation boosts Raise-the-Age prospects in Texas

Texas is one of only four states which still charges 17 year olds as adults. But new federal legislation awaiting President Trump's signature will soon prevent the Lone Star State from housing 17-year olds in adult county jails, providing a big incentive to change their status to match 92% of other states and the federal government. The president is expected to sign the measure.

Dubbed the Juvenile Justice and Delinquency Prevention Act, the bill would force Texas to stop housing 17-year olds in adult jails within three years, with narrow exceptions for rural jails, if it wants to continue receiving federal funds, reported the Marshall Project:

earlier versions of the law contained a loophole: Juveniles charged as adults could be held in adult jails pretrial. As a result, according to a recent UCLA study, more than 32,000 youth spend time in adult facilities each year. 

The new bill would require that problem be fixed within three years, although it would still contain a “rural exception” letting jurisdictions with no juvenile detention facility hold kids in their adult jail for a period of a few hours while they await transportation elsewhere.

Unless the state opts out, any county with its own juvenile detention facility, in other words, within three years will be barred from housing 17-year olds in the county jail at all. Counties without a juvie-detention facility could only keep them there for a few hours, and still must keep youth separated by sight and sound from adults, as mandated by the Prison Rape Elimination Act.

Both Texas political parties have endorsed raising the age of adult criminal responsibility in their state party platforms. And the Texas House has approved such legislation each of the last two sessions. But Lt. Gov. Dan Patrick, Senate Criminal Justice Committee Chairman John Whitmire, and the state prosecutors association have so far have opposed the measure.

Those opponents have mainly pointed to the economic costs of raising the age as the main reason not to do so. Now that Texas may begin to lose federal funds if it doesn't change incarceration practices for 17-year olds, maybe this legislation will make it over the hump in 2019.

Related:

• Now in a dwindling minority, failure to raise the age creating problems for Texas all over
• Raise the age bill solves practical problem for sheriffs
• Crimes by 17-year olds plummeting; should they be charged as adults
• Poll: GOP primary voters support raise the age, decarceration bills

Clarification: This column was edited after publication to clarify that Texas only must comply with the new regulations if it wants to continue receiving federal funds through the program, which Congress just re-authorized at new, higher levels. Reported the Huffington Post, "Three states no longer implement the act’s requirements because they are too costly."

Tax deadline for exonerees, Blakinger on 'Fresh Air,' judge rubber stamps flawed blood-spatter forensics, and other stories

Lots going on this week, even if your correspondent hasn't had much blogging time. Here's a quick roundup of items presently filling up Grits' browser tabs:

Texas Exonerees: Tax deadline looming
Any Texas exonerees receiving compensation from the state: You have until December 17 to file to have your state compensation declared tax exempt. Act now! This time next week it will be too late!

Journalistic scoop scored inmates dentures, national press for reporter
Congrats to Keri Blakinger! Terry Gross from NPR's "Fresh Air" interviewed her about her great journalistic victory securing dentures for toothless Texas prisoners. The Department of Criminal Justice has begun issuing 3D-printed dentures to toothless inmates. What an excellent result. Keri, you should be very proud. And I'm proud of TDCJ, too, for doing the right thing here.

Rubber stamping prosecutor findings upholding bad forensics
Visiting Judge Doug Shaver ignored evidence of flawed forensics in the Joe Bryan murder case to recommend against habeas corpus relief, despite blood-spatter evidence connecting Bryan to the crime being thoroughly debunked and discredited during the hearing. (The same judge once ruled that a lawyers sleeping through his client's death penalty case had not provided ineffective assistance!) Reporter Pam Colloff was shocked that Shaver simply adopted the prosecution's findings without alteration, but this is actually a more common practice than most people know. The Court of Criminal Appeals should reverse the judge's conclusions. It's disingenuous to pretend that the only forensic evidence connecting the defendant to the crime did not contribute to his conviction. This case is exactly the type of circumstance for which Texas' junk science writ was created.

Demagoguery backfires: Flag desecration case more complex than portrayed
In September, the Denton County Sheriff held a press conference to engage in demagoguery regarding a man alleged to have desecrated an American flag. Now, it turns out the guy is mentally ill, has a sad, complex backstory, and can't make bail because of a bad credit record. The county has spent thousands of dollars to incarcerate him - with no end in sight, until he's deemed competent to stand trial - all based on ~$300 worth or property damage. The ACLU has taken up his case, alleging he is being singled out and punished more harshly because of his political message. See coverage from the Denton Record Chronicle.

Asset forfeiture in TX tops $50 million
Texas cops seized more than $50 million in assets from Texans in 2017, alleging they were contraband. But in many instances, property owners were never convicted of a crime.

How cops turn mental health crises into deportations
I'd missed this when it came out in August, but the excellent reporting from the Texas Observer on the topic remains timely.

Prosecutor misconduct alleged, execution goes forward anyway
Alvin Braziel was executed on December 11 just hours after a member of the prosecution team admitted to alleged misconduct in the case. Judges Walker and Alcala dissented.

How bogus blood-spatter evidence 'spread like a virus'
Excellent historical background from ProPublica from Leora Smith, a young researcher who worked with Pam Colloff on the Joe Bryan story.

Wanted: Generalist forensic scientists
A new paper argues that traditional forensics will be a dead profession in a few decades if generalist scientists do not step up to engage the profession.

Fewer murders this year
Nationwide, murder rates appear to be declining in 2018.

The First Step Act will get a vote in the Senate
Thank heavens!

For podcast listeners
In addition to Just Liberty's Reasonably Suspicious podcast (I was particularly pleased with the December episode), the Marshall Project has a good roundup of recent #cjreform podcasts and multi-media projects that may interest Grits readers. In addition to the ones listed there, I've also been enjoying Villains - neat concept for a podcast.

Podcast: Adversaries over Austin police-union contract sit down; when is it okay for courts to electrocute mentally ill defendants?; pythons as stocking stuffers?; and other stories

When is it okay for a judge to electrocute a mentally ill defendant?

What leverage did a Texas civil rights activist say enabled Austin advocates to force reforms into the city's police-union contract?

How many pet pythons are too many, and are they appropriate to give at Christmas as stocking stuffers?

These and other questions are answered on this month's episode of the Reasonably Suspicious podcast. As always, you can subscribe on iTunes, Google Play, or SoundCloud, or listen to it here:


Here's what's in this month's episode:

Opening: Pythons as stocking stuffers?

Top Story

• Principles for progressive prosecutors

Interview
Police-union negotiators Ron DeLord and Chris Perkins sit down with a now-familiar adversary, Chas Moore of the Austin Justice Coalition, to discuss the aftermath of the year-long fight over the capital city's police-union contract.

Home Court Advantage

• When is it okay to electrocute a mentally ill defendant in court? Discussion of James Calvert oral arguments
• Ken-Paxton prosecutors de-funded, but at what cost to indigent defense?

The Last Hurrah

• Dallas PD officer indicted for murder
• Lawsuit challenges driver surcharges
• Ray Hill, R.I.P.

Find a transcript of the show below the jump.

Conflation of punishment with price system distorts justice in sex-assault cases

We live in an era when "justice" has been defined largely in terms of the price system, as though it were subject to laws of supply and demand. The root theory behind our modern justice system, in large part, holds that punishments are a "price" paid for misconduct and, if they do not deter, it's because the "price" wasn't high enough.

Defining punishment abstractly as the "price" of crime generates perverse cultural meanings for victims, prosecutors, jurors, and others engaged with the system. Under the price-system mindset, harsh punishment by the state (which monopolizes the currency of punishment) is evidence that the victim is valued, while more lenient outcomes are evidence that they are not, that a lower "price" has been placed on their suffering.

This implicit pricing model distorts nearly every part of the justice system, but particularly regarding sexual assault. Certainly, some women want maximal punishment for their rapist. But because the overwhelming majority of women know their perpetrators, often including beloved family members, harsh punishments can also perversely prevent some women from reporting crimes against them. For them, defining the "value" placed on their suffering vis a vis the "price" of punishment harms their interests, making them less safe and abnegating their needs rather than meeting them.

This is why Grits has often thought that restorative justice tenets may ultimately provide a viable, alternative path for how to confront these horrible situations. Such interventions focus on the questions, “Who was harmed? What do they need? Whose obligation is it to meet those needs?,” which seems like a more constructive approach than one-size-fits-all punishment regimens.

But the pricing model is what we've got, and a couple of recent, high-profile cases help demonstrate how treacherous this terrain can be.

In Waco, the town is in a furor over outgoing DA Abel Reyna's office agreeing to a plea bargain for a former Baylor frat president, Jacob Walter Anderson, indicted by a grand jury on four counts of sexual assault. Under the deal, he pled to a third-degree felony charge of unlawful restraint. He'll serve no jail time, undergo counseling, pay a $400 fine, and won't be required to register as a sex offender. Reported the Tribune-Herald:

The victim, who has been outspoken against the plea bargain, began to cry loudly Monday after Strother announced his decision to accept it. She urged the judge to reject the plea offer and set a trial so she could have her day in court. She said Anderson sexually assaulted her, repeatedly choked her and left her for dead after she fell unconscious. 

Later, in an emotional victim impact statement, she told Strother she is devastated that he approved the plea bargain. She called out prosecutor Hilary LaBorde, who struck the deal with Anderson, and McLennan County District Attorney Abel Reyna for not attending the hearing. 

“If I had the courage to come back to Waco and face my rapist and testify, you could at least have had enough respect for me to show up today,” she said. “You both will have to live with this decision to let a rapist run free in society without any warning to future victims. I wonder if you will have nightmares every night watching Jacob rape me over and over again?” ... 

The woman described in sometimes graphic detail what she said Anderson did to her. 

“When I was completely unconscious, he dumped me face down in the dirt and left me there to die,” the woman said. “He had taken what he wanted, had proven his power over my body. He then walked home and went to bed without a second thought to the ravaged, half-dead woman he had left behind.” 

The woman said she has learned through this process that “the McLennan County justice system is severely broken,” but she thanked the women who created an online petition opposing the plea agreement that she said was signed by more than 85,000 people.

So why did the McLennan DA's office fail to go to trial? They feared an acquittal, was supposedly the reason. ADA Hillary Labord

declined comment about the case. However, in an email she sent the woman and her family after they learned of the plea agreement by reading the Tribune-Herald, she said she offered the deal after an acquittal in a sexual assault case that she said was similar to Anderson’s. She said she was concerned Anderson would be found not guilty. 

“(The jury) engaged in a lot of victim blaming — and the behavior of that victim and (this victim) is very similar,” she said. “It’s my opinion that our jurors aren’t ready to blame rapists and not victims when there isn’t concrete proof of more than one victim.”

The prosecutor's motive ostensibly was to protect a victim who didn't want to be protected, but she never spoke to the victim to tell her about the deal, letting her learn about it in the newspaper. So far, one notices, no one has judged the behavior or credibility of the victim but the prosecutor. Jurors never had  the chance.

In that light, how did anything that happened throughout this process meet this woman's needs? The state demonstrated they didn't value her by judging her credibility, failing to communicate, even to say the DA planned to dishonor her wishes, then they placed a low, abstract "price" on her pain through lenient punishment without giving her a chance to tell jurors her side of the story. No wonder the woman's angry! A statement released by the victim's family, the Tribune-Herald reported, declared:

“This is an absolute travesty,” the statement reads. “By agreeing to this plea, (prosecutor) Hilary LaBorde and the McLennan County DA’s office have allowed that rape is no longer a crime in Texas. They are telling the rapists and sexual predators, ‘Go ahead and violently rape, choke to near death and abandon your unconscious, ravaged and used-up victim and we will make darn sure you get some counseling. Even if a grand jury indicts you on four counts of sexual assault, we don’t care.’ 

“Oh, and ‘All you rape victims, don’t bother to report it, because we will put you through hell for years, make promises about getting a conviction and lie to you about not accepting a plea the whole time. We will give your rapist counseling and drop all charges and let him go free. We don’t care about about justice and we don’t care about you,’ ” she said in the statement.

The victim here isn't just angry about a light sentence, although she clearly thinks her rapist should have been punished more harshly. But she's also angry about not being kept informed, about the DA's office ignoring her willingness to testify, and not getting her day in court. She feels lied to. She felt throughout the process that she wasn't being heard, viewed the trial as the moment when she finally could be, then saw that opportunity taken from her in a deal considered friendly to her assailant. Anyone would be mad.

By contrast, consider this recent story:  In Bell County, a man disproved false rape allegations by producing a selfie taken in Austin as an alibi. An ex-girlfriend accused him of breaking into her house, raping her, and carving an "X" into her chest. Police initially believed her, and the guy was in serious jeopardy of spending a long stretch in prison if he hadn't been able to prove his whereabouts.  Now, she has been charged for making the false report.

Thank heavens the fellow was out of the county and could produce a time-stamped selfie! If the same fact-pattern occurred in the pre-cell phone era, he'd be screwed.

False allegations are rare but do happen. Indeed, the FBI has asserted that, 'The “unfounded' rate, or percentage of complaints determined through investigation to be false, is higher for forcible rape than for any other Index crime." Some false allegations, as in the San Antonio Four case, appear to arise from retaliation. Some come from young women embarrassed at their own behavior. And some are women who are raped by a stranger and make an honest but tragic mistake about their assailant's identity.

In those incidents where a rape did occur but the wrong person was accused, a double tragedy occurs. An innocent is punished for the sins of another and the real perpetrator goes free. That's a worst-possible-case scenario that should justifiably scare anyone - say, jurors asked to pass judgment in these instances.  Women deserve justice, but justice is poorly served when an innocent person is punished.

Grits values both the victim's pain in Waco and the liberty interests of the man in Bell County. For that matter, I hope that the defrocked frat president turns his life around, repents his sins, goes on to live a productive life, and never does anything like that again. It's possible the best way to ensure that happens is to send him to prison for decades, but I've no evidence that's true.

I don't know how to resolve these high-level contradictions based on evidence, particularly when the evidence we do have suffers from undercounts and corrupted data about how many rapes are actually solved. One bit of good news: changes on the misleading data front are apparently in the works.

In response to the Reveal podcast criticizing Austin PD's categorization of "exceptionally" cleared rape cases (see Grits coverage here and here), the FBI will change its definitions regarding what qualifies a rape investigation for "exceptional" clearance, according to a followup story from the Center for Investigative Reporting.

For decades, law enforcement lumped cases which were "cleared" by arresting a suspect into categories along with much more numerous cases where police had identified a suspect, had probable cause to make an arrest, but chose not to do so because a judgment had been made by police or prosecutors that the case wasn't winnable. As with the case in Waco, typically victims weren't involved in or often even notified of those judgments.

Grits cannot presently discern the path leading from an unsatisfactory status quo to a system that more reliably delivers just outcomes in sexual-assault cases. But it's clear to me the justice system as presently constituted exacerbates the problem, and IMO a big source of the disconnect is this conflation of the value society places on victim's suffering with punishment as the "price" paid for crime.