Saturday, August 31, 2019

License center lines to get lenghier, the case for medical-led mental-health first response, and other stories

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

License renewals from abolished driver surcharges may exacerbate lines at DPS license centers
Line outside DPS license center on North Lamar
in Austin ~7:30 a.m. Friday morning
It's going to be a rough fall at the DPS license centers. The Texas Legislature gave them $200 million to staff up at some of its biggest facilities, but those new workers won't come online for several months. In the meantime, about one million people with suspended licenses on Monday will have had all their Driver Responsibility surcharges wiped clean and can finally renew their driver's licenses, likely significantly adding to lines.

Sheriff shot up wrong vehicle
Somebody took a shot at a state trooper in Kimble County, and he called it in. The sheriff heard the call, set up on the side of the highway with an assault rifle, and shot up a passing pickup in response, wounding the driver. It was the wrong vehicle; the trooper had called in a "gray" truck and the pickup the sheriff shot up was white. Good piece from Eric Dexheimer with the details.

The case for medical-led mental-health first response
Here's an excellent case study out of Austin showing why cops shouldn't spearhead first response to most mental health calls. The Austin City Council is presently considering whether to shift to a medical-led response in most instances, following the lead of a Dallas PD pilot program.

'Cooking them to death'
The Marshall Project and the Weather Channel teamed up to report on the effects of excessive heat in Texas prisons.

Coming soon: New Travis County public defender office
Great news: The Texas Indigent Defense Commission approved grant funding for a new public-defender office in Travis County.

'Arrest, release, repeat'
The Prison Policy Institute came out with a new analysis discussing "How police and jails are misused to respond to social problems."

Feds failing at collecting police use-of-force data
Since 1994, the Bureau of Justice Statistics has been charged with gathering data on police use of force. But most agencies' data is garbage and most of the information is suspect or unusable, reported Kenny Jacoby of Gatehouse News.

Tuesday, August 27, 2019

Harris probation director clarifies case highlighted in Grits post

Last week, Grits posted an item about the Harris County probation department that included a critique of a Tweet touting a client who could now pay for a new child seat for her infant because she was rid of her probation fees. Theresa May, the director of the Harris County probation department, sent me an email clarifying some facts around that case. Although she expressly did not request a correction, I wanted to pass along her note for additional context:
Hello Scott! 
I hope all is well! I read your commentary on our post regarding one of our clients who was released early. 
As written, it was fair criticism and not something we would want to post as a pat on our back. Unfortunately, the summary of what happened with this client, as written, did not provide a clear picture of what actually occurred. Too many relevant facts and the context were not included. 
For what it’s worth, I did follow-up to look into the case as I had the same concerns you did when I read the post. In reviewing the case, the officer advocated for the DA’s office to release this client five months early (from a one year pre-trial diversion contract for a felony case) which would require agreement to waive all of the fees and community service hours for the entire pre-trial diversion and supervision of the case, not just the portion that would be granted automatically with early release. The client had not paid any fees to date for the pre-trial diversion case and had accrued a balance. It appears the officer felt the ADA would be more amenable to early release if the client completed one requirement, the Effective Decision Making Class and paid the class fee only. Reading the officer’s chrono entries, it appears the client’s parents helped her pay for the class and the client completed the class. It appears, the client’s parents were very supportive but the client struggled to be self-sufficient financially and struggled with her choices as well. The officer submitted the request for early release, noting the client completed the class and had made positive progress in making better choices. In turn, the ADA agreed to early release the client from the contract which discharged the entire balance the client had accrued. 
When the officer conveyed the message to the client that her case would be early released and that all fees accrued for the Pre-Trial case to date would be waived, the client told the officer she planned to use the money she no longer owed for the Pre-Trial case to purchase a better, more suitable car seat for her infant. During the course of her Pre-Trial Supervision, the officer worked with the client to make better choices, focusing on supporting and caring for her infant as opposed to going out with friends and using drugs. In reading the chronos, the officer clearly invested a lot of time working with this client one on one to help her learn to make healthier choices. The officer used EPICs skills (cognitive restructuring and reinforcement) and it appeared to pay off. The client made significant progress in making a deliberate choice to focus on caring for her infant rather than going out with friends and using drugs. This was a significant shift in this client’s lifestyle and choices that benefited both the client and her infant. Clearly, the officer was very happy to hear the client’s first thought was to purchase a better car seat for her infant as opposed to what may have occurred in the past. The officer requested early release for this client to reinforce the significant progress she made in her lifestyle by making better choices to the benefit of her and the infant.

The officers commonly advocate for early release for our clients if at all possible, so that is not the highlight of this story. This story was submitted by the officer’s supervisor because of the work the officer invested with this client and the progress the client made. Unfortunately, that point was completely lost in this post. 
Scott, I greatly appreciate the work you do in fighting for criminal justice reform and find your blog to always be fair. You were fighting before it became a major focus. We deserved the criticism in your blog based on what was written. I wanted to share this information with you out of great respect for all you do. There is no need to make any changes to the blog, please. We did not communicate clearly and earned the criticism. We are far from perfect and have a lot of work yet to do. I hope the day will come where we can change the way probation departments are funded to one that does not include reliance on fees. 
On a side note, I appreciate your insight as to how improvement in one aspect of the system has a positive impact on the rest…. That is an important take away from the Pre-Trial Diversion program and the RIC docket. 
Best wishes, 
Teresa May Ph.D.
Harris County CSCD

Monday, August 26, 2019

Media, unions hoped Dallas police staffing study would recommend more cops; instead it said 'manage your cops better'

The Dallas Morning News reported on a new staffing study for the Dallas Police Department prepared by KPMG. But the story is so focused on promoting the paper's ongoing agenda of encouraging the city to hire more officers, the coverage missed the forest while searching for a missing tree: they wanted the report to say how many additional officers the agency should hire, and KPMG failed to take the bait.

KPMG did identify DPD needs that could require more staff, but they suggested that staffing re-alignments and adjustment of strategies, tactics, and priorities could free up that capacity in lieu of the city hiring more officers. That thinking didn't make it into the Morning News story, even though it's the central reasoning behind the recommendations. Instead, the reporters scoured the 400-page report for hints at how many officers should be hired then called around to ask people if they thought the consultants should have given a hard number.

Indeed, the local police union just pretended the consultants had recommended hiring more officers and repeated the demand that a hard number be recommended for new hires:
Mike Mata, president of the Dallas Police Association, said he still hopes to hear an estimated number from top brass early next week. 
“What’s our goal? Even if it’s a broad goal,” Mata said. “I don’t think it’s healthy to just say we need more. There has to be a target or at least a range.”
In fact, KPMG recommended hiring a number of civilian positions as a higher priority than increasing patrol staff. Those were:
  • Efficiency specialists
  • Data science and optimization experts
  • Technologists
  • Change management specialists
  • Project managers
They also recommended hiring civilian "investigations technicians," "crime analysts," "community support officers," and admin staff to support the Investigations division instead of just adding more cops.

KPMG argued that DPD brass should spend time re-organizing and re-prioritizing patrol functions to free up officer capacity, then evaluate how many officers should be hired when that process is finished. Right now, they said, the agency is completely reactive, with little in the way of a strategic planning process:
Based on our observations and interviews conducted over six months, it is evident that the DPD lacks a clear strategy and is more reactive to the issues of the day, rather than working towards a common long-term goal. While DPD has strategic priorities these have not been translated into a strategic plan that can drive action. This is particularly evident at the Patrol officer level, where staff appear unclear of the overall strategic direction and mission for the department as they receive conflicting direction from the department as to what the priority is, either response times or crime fighting.  
This is also apparent with respect to the Investigations Bureau, which lacks a clear crime strategy, which should be linked to the overall Department strategy that would allow for a flow down staffing model from priorities to execution. Staffing decisions are therefore made periodically and reactively. The DPD responds to both attrition of staff and the daily operational disruptions. The ideal allocation model would be based on a strategic crime reduction model, whereby staff is aligned by priority and actual workload and utilize data and intelligence to inform decision-making. The DPD has considerable work to do in order to achieve this ideal state in the Investigations Bureau. 
When staffing decisions are being made in a haphazard and reactive fashion, simply hiring more officers isn't a solution. The consultants recognized that, even if the Morning News and the police union can't quite accept it. DPD has some work to do before they could effectively use those staff, and the most important, immediate hiring needed involves civilian functions, not patrol officers.

Another interesting critique involved the agency's use of Compstat crime mapping software, which the consultants said contributes to the reactive nature of Dallas policing:
Recent research evidence suggests that Compstat is more likely to generate reactive crime control responses rather than more creative problem-solving responses designed to address the conditions that cause crime problems to recur (Dabney, 2010; Weisburd et al., 2003). In order to be effective the Police Foundation identified six key elements of Compstat that form a comprehensive approach for mobilizing police agencies to identify, analyze, and solve public safety problems: mission clarification; internal accountability; geographic organization of command; organizational flexibility; data-driven problem identification and assessment; and innovative problem solving (Weisburd et al., 2003). When compared to non-Compstat police departments, police departments that use Compstat have been found to be more likely to implement traditional crime control strategies rather than community problem-solving strategies to address crime problems (Weisburd et al., 2003). Willis, Mastrofski, and Kochel (2010) suggested a new form of Compstat that supports collective problem-solving, maintains accountability, and more fully embraces community policing. They observed that this may require diminishing the formality of the chain of command in crime control meetings to support more collaborative problem solving by a wider range of meeting participants. 
With this in mind and considering the recent increase in crime within Dallas, DPD may consider reviewing their current Compstat process to help ensure that the focus is not on reporting of statistics and reactive measures but considers proactive problem-solving initiatives so that the Compstat meetings add value towards the department’s crime strategy and are a productive use of time for all parties involved. 
The Dispatch functions in DPD similarly need to be rethought, say the consultants. Currently, every call gets the same priority. KPMG thinks they should stop assigning the first available officer, which takes cops off their beats and has them running around all over the city. Instead, they should enforce "beat integrity" and send the first-available patrol officer from that area. The wasted officer time driving around is one of the sources of freed up capacity the consultants hope to capitalize on to offset needs for additional hiring.

KPMG also praised the pilot program in Dallas which sends EMS and mental-health professionals as the lead responding to mental-health calls, using officers only for security. (The Austin City Council presently is considering whether to fund a similar pilot.) Not only does that lessen demand for uniformed officers, the consultants also praised the number of money saving hospital and jail diversions:
While DPD is making efforts in this area for example the establishment of the Rapid Integrated Group Healthcare Team (RIGHT) Care pilot program, which is a multidisciplinary team composed of a law enforcement officer with mental health training, a paramedic, and a behavioral health clinician, to answer mental health–related calls for service. This team is able to quickly mobilize and respond to people experiencing a behavioral health crisis in the community to divert people with complex health needs related to serious mental illness (SMI), when appropriate, from jail and emergency departments in order to decrease recidivism rates, better facilitate recovery, and more appropriately allocate community resources. Within the first year of the pilot the team affected 638 hospital diversions and 316 jail diversions.
In perhaps their most important and under-appreciated finding, Dallas PD has dramatically under-invested in civilian staffing across the board, the consultants concluded, and focused budget cuts on civilian an non-sworn positions instead of patrol. (That's one of the reasons the consultants recommended a clutch of civilian spots be filled first, before needs for additional police officers are assessed.) They wrote:
While the scope of the DPD staffing analyses was limited to the Patrol and Investigation Bureaus there were a number of opportunities identified to increase the use of civilian or non-sworn staffing within the Department. The DPD could benefit from the force-mix review of all functions within the department to help ensure that the right positions, with the right skills are performing the right roles. It was noted by DPD staff and leadership that during budget cuts the first positions to be unfunded are the civilian and non-sworn positions, however this can only serve to increase the burden on sworn staff and shift their focus from their core tasks.
Civilian staffing accounts for just 16 percent of total DPD staffing as of March 2019. When compared to the comparison cohort, this size of Dallas’s civilian workforce is the third smallest, with Dallas ranking ninth out of twelve agencies as civilians comprised only 17 percent of the workforce in 2017. As discussed in detail in the patrol report and illustrated in the graphic on the following page, the project team’s review of comparison agencies found that on average, 24 percent of their workforces were civilian staff.
Finally, DPD record keeping is such that some management evaluations couldn't be performed. The consultants gave detailed recommendations for improvements to record keeping, both practices and data points gathered, that they say will enable smarter decisions about how to deploy staff going forward. They don't say it, but one of Grits' favorite phrases comes to mind, here: You can't manage what you can't measure.

I don't understand why the Dallas Morning News feels the need to promote this hire-more-officers meme they've been hammering away at recently, but this report wasn't the platform on which to promote that narrative. The consultants didn't conclude that Dallas needs more cops, they said the agency needs to be better managed and re-organized.

That may not be the message Mike Mata and his local media bandwagon want to hear, but this study represents an opportunity for the Dallas press and, more importantly, local government, to pivot away from the simplistic meme that more cops are the only possible solution to crime. I hope they take it.

MORE: See DMN coverage of the city council briefing, and here's a DMN staff editorial struggling to come to grips with the fact that the consultants' analysis and recommendations fly in the face all prior DMN reporting and analysis on the topic. The editorial said the report's guidance was "sometimes confusing," but I didn't think so. They simply focused on more important management questions, whereas the Morning News' coverage has tried to boil down police-management issues to "how many more officers should we hire?," choosing between options of "a lot more" and "a whole lot more." The consultants showed that was a false choice that ignored pivotal issues facing the department that prevent more effective crime fighting. Hiring more officers before those problems are addressed puts the cart before the horse. At the briefing, "KPMG consultants repeatedly told city officials that there were strategic issues that needed to be addressed within the department before talking about overall department staffing numbers," the paper reported. IMO, any "confusion" stemmed from the News' wrong-headed coverage prior to the report's release. Grits thought the recommendations were quite clear and well-founded.

Friday, August 23, 2019

A first-cut reaction to Harris-County DA Kim Ogg's reasons for opposing bail reform

Why does Harris County DA Kim Ogg oppose the proposed bail-reform settlement in Houston? Let's dig into this bit by bit, starting with the four, bullet-pointed reasons stated in her amicus brief filed today. The bulleted items are her language, then my comments follow each of them:
  • Accords unfettered and unreviewable discretion to misdemeanor judges and magistrates to delay (or outright excuse) misdemeanor defendants from appearing in court, contrary to Texas law.
Ogg's claim that the settlement is "contrary to Texas law" is overstated. The case law she quotes to support the argument says judges can waive appearances for "good cause" and leaves that undefined. You could drive a settlement-sized truck through that loophole. Throughout the brief, Ogg expresses the view that judges will use their discretion unreasonably. Where does this distrust of the judiciary come from? Judges have always had extraordinary authority, and historically used it to disproportionately favor outcomes presented to them by prosecutors. She never complained then!
  • Increases institutional dysfunction in the criminal justice system by disproportionately favoring convenience to misdemeanor defendants without regard to the impact on victims, witnesses, and the other stakeholders and the State’s efforts to produce them for hearings and trials.
"Convenience" dramatically understates people's liberty interests and the harms associated with locking them up in cages pretrial. A common theme throughout this brief is her failing to consider the violation of defendants' liberty interests as anything beyond a minor inconvenience, as opposed to the seismic, life-altering disruption it can be IRL.
  • Increases the capability of the defendant to challenge and defeat motions by the State of Texas by and through the District Attorney to set bail at any amount, increase the amount of bail recommended, or impose conditions of bail through exclusion of any mention or committed support for the District Attorney in the Proposed Settlement, while guaranteeing such support for the defendant, Public Defender and all support services in Section VII.
Essentially, this is a request for unfettered power. Her complaint is that a defendant who is not in jail pretrial might be better positioned to successfully mount a defense. The only practical limits on a DA's power are imposed by courts in response to defense motions, and Ogg wants to make sure defendants don't have the "capability"  to "challenge and defeat" her office in contested proceedings. But shouldn't her office lose if a judge decides she's wrong? The criminal-justice system supposedly is adversarial and defendants get to file motions, too.
  • Imposes post-release policies through federal court settlement instead of through democratic processes, essentially foreclosing state and local government from developing constitutionally sound new policies as circumstances change and limited county resources dictate.
This may be the weirdest one: The county commissioners, judges, etc., who were involved in approving the bail settlement were all local elected officials. The only officials not involved in this settlement are legislators. Is Kim Ogg really proposing - after bail reform crashed and burned in Austin this spring - that we put all this on hold and hope that the Texas Legislature can do better in 2021?

Grits may yet go through some or all of the rest of the brief in additional posts; it's really quite a document! When I heard Ogg had filed this, my first reaction was "Why?" And since she answered that question in convenient bullet-point format, I thought this was a good place to start dissecting the topic.

H/T: The Appeal. MORE: See Houston Chronicle coverage.

AND MORE: Defendants filed a brief in response to Ogg's. Here it is.

Roundup: Debtors prison practices, a hempsplainer, why the Harris DA opposes bail reform, and other stories

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

Debtors Prison Blues
Texas was one of five over-represented states in this Governing magazine feature story on municipalities that get more than 10% of their budgets from traffic fines. Great piece; reminded me of this Marshall Project story. In Texas, the agencies most reliant on traffic fines are primarily in East Texas, and up and down I-35. Long-time readers may recall Grits wrote a theme song for these agencies:

District Attorney opposing Harris County bail settlement
Harris County DA Kim Ogg issued an amicus brief opposing the new bail-reform settlement agreed to by judges and the county.

On the pitfalls of state police patrolling local police beats
Texas DPS this spring began sending troopers to patrol in the Dallas city limits. But when they shot and killed somebody, it turned out they're not as accountable as local cops.

The Texas Forensic Science Commission put out an explainer document (a "hempsplainer"?) related to the new requirement that prosecutors prove the THC levels in marijuana to secure a conviction for possession. In related news: Add Amarillo to the jurisdictions where Class B marijuana cases are being dismissed.

Grappling with excessive police-union power
Check out an essay on "The Unjust Power of Police Unions."

On racial stereotyping
Grits found this interview on racial (and other) stereotyping interesting and useful.

Mitigating harm from if-it-bleeds-it-leads crime coverage

Wednesday, August 21, 2019

Harris County probation department making big improvements, but it's still probation

As part of reforms implemented with its MacArthur grant, Harris County consolidated all of its state jail cases into one district-court docket called the "Responsive Intervention for Change (RIC) Docket." According to the Texas Comptroller:
Before the reforms, a disproportionate share of Texas' state jail felons (SJFs) were from Harris County — 26 percent in 2014, well in excess of the county's 16 percent share of the state's population. Five years later, its share of the total had declined by 90 percent, from 5,817 to 611. Harris County still sends more felons to state jail than any other county, but its overall share of the SJF population has fallen to 10 percent
The difference, May explains, is that the county has increased the number of defendants willing to accept probation through its RIC Docket, specialized caseloads (e.g., for substance abusers) and pre-trial diversion (PTD) programs offering mental healthcare, drug rehabilitation and work-release programs rather than prosecution. The county also significantly reduced the time defendants spend in jail awaiting trial, which greatly curtailed “good time” credit, removing the incentive to just sit idle or plead out to state jail, thereby reducing incarceration costs. 
"When defendants are not racking up a substantial amount of back time in jail awaiting disposition," May says, "they are more open to diversion or community supervision." 
Before their cases are decided, defendants' risk levels are assessed and their needs identified to target what's causing their criminal behaviors. The most common contributing factors, according to the CSCD, are attitude, peers, personality, family, education/employment, activities and substance abuse. 
On the back end, greater community supervision has helped to halve the re-arrest rate of the county's released SJFs, from more than 60 percent to less than 30 percent.
These are excellent outcomes and a great improvement over past practices. Grits finds particularly interesting the correlation between reduced pretrial detention and people's willingness to accept probation in a plea bargain. Reducing inefficiencies in one part of the system generated ancillary benefits in another.

Even so, there are moments when Harris County reminds us even the best probation departments are still doling out harm. This week, they tweeted out a success story of a woman named Sarah who completed probation and was released five-months early. HCCSCD praised her for having paid money to complete an "Effective Decision Making" class, then patted themselves on the back that, now that she has no fees, she can afford a new child's seat for her infant!

"How many people still paying fees are making similar tradeoffs to complete probation requirements?" Grits wondered aloud on Twitter. Certainly, more than a few.

The department's use of early release for successful probationers is commendable and deserving of praise, as is the new state-jail docket. But the perverse choices forced on this successful probationer - whether to pay for an "Effective Decision Making" class or a car seat for her infant daughter - are commonplace throughout the system. At this point, they're more a feature than a bug.

RELATED: From the state comptroller, "Texas state jails: Time for a reboot?"

Fraternal Order of Police gain Texas foothold in H-Town

Police union politics in Texas could become even more radicalized now that the Houston Police Officers Union (HPOU) has joined forces with the Fraternal Order of Police, a police-union umbrella group and Trump-administration favorite that had not previously had a major foothold in Texas.

HPOU's president, Joe Gamaldi, was elected to FOP's leadership team, the Houston Chronicle reported recently. For many years, HPOU was affiliated with the Combined Law Enforcement Associations of Texas (CLEAT). Then, it briefly teamed up in a sort of coalition with the Dallas police union and the Texas Municipal Police Association, CLEAT's biggest rival.

By bailing on TMPA and teaming up with FOP, Grits fears HPOU may have launched a race to the bottom. FOP is well known for backing firebrands and demagogues, and Gamaldi was already a shoot-from-the-lip kind of guy.

Grits read: Expect more outlandish statements and demagoguery from Joe Gamaldi, and expect the CLEAT and TMPA-affiliated unions to follow their lead and become more aggressive to try to match them. I hope I'm wrong, but this strikes me as unfortunate news.

Bexar County to give Narcan to addicts exiting jail, but many still won't call 911 for fear of felony arrest

Addicts leaving the county jail in San Antonio will now receive a dose of Narcan in case they overdose, the Express News reported. Overdoses are more common after incarceration because addicts may have lost some of their tolerance. That can cause people to overdose when they use the same amounts they used before. Funding for the program came from a federal grant.

Of course, folks can still be arrested for drug possession if they call 911 to report an overdose. A Bexar Sheriff's deputy told the paper that:
people shouldn’t be concerned about contacting authorities should a friend or family member overdose. 
“That’s the least of your worries at that point, ending up in jail,” he said. “You should be worried about surviving, or about leaving your child without a mother or father.”
That's easy to say, but it would mean more if Gov. Greg Abbott hadn't vetoed Good Samaritan legislation in 2015 that would have prevented 911-callers from being arrested for calling in an overdose.

In 2018, the Austin Statesman reported that, "similar laws in other states have resulted in as much as a 15 percent drop in opioid overdoses in the past five years, despite nationwide increases. The laws also do not appear to increase the number of drug users, the data shows."

That's shaping up as one of the worst and most destructive vetoes of Abbott's tenure so far.

Tuesday, August 20, 2019

Austin should freeze police hiring until pension problem resolved

Since the local press has ignored the topic, let's delve a bit deeper into the pension crisis at the Austin Police Department. As Grits reported yesterday, an audit released in July found that the city will never cover its police pension liabilities at current contribution rates.

Bizarrely, in response to this news, some at city hall have claimed they need to hire MORE police officers with exorbitant pension promises so they can pay for the retiring officers. This argument fundamentally misunderstands how pensions work, imagining the fund as some sort of Ponzi scheme. It is not. Instead, employees and employers make contributions for each officer into a long-term investment fund. More officers, the greater the required contributions. Moreover, Austin officers contribute far less than the city. So every new officer increases the city's cost and liability substantially (they become 100% vested after just ten years).

The confusion perhaps is somewhat understandable. Social Security works that way: Money which people pay into Social Security today is directly used to cover benefits for current retirees. There's no long-term investment fund tied to individuals' contributions. Pension benefits, by contrast, are paid from the investment fund, not from current employee contributions.

I don't know who's spreading this misinformation at city hall, but hiring more officers when the city can't afford pension costs for the current ones amounts to dousing a fire by tossing kindling on top. Will Rogers' advice Grits quoted yesterday remains apropos: "When you find yourself in a hole, stop digging."

The largest cohort of former police officers receiving pension benefits are under 60 years old, with an average annual benefit of more than $70,000! By contrast, retired Austin officers in their 80s receive about $47k per year. (All this on top of social security, any military benefits, etc..)

At present, Austin has 345 former officers in their 50s drawing more than 70k per year in benefits each, and more are added to their number all the time. (Median income in this city is only $63k!*) So things are about to get very expensive, very quickly. It's not sustainable to add more officers until that problem is fixed.

Calendar year 2018 was when the Austin police pension went from a status of problematic-but-salvageable to essentially broken. Unfunded liabilities ballooned from $415.5 million to $671 million. Exacerbating the problem, the pension fund is carrying about $89 million in losses on its books that will eventually require a downward adjustment.

Those combined trends are why actuaries say APD's pension plan will never cover liabilities at current contribution levels.

And let me say it first: The city can't and shouldn't cover all of the shortfall. City Council should open the contract back up and adjust these lavish commitments downward, or else have police officers themselves contribute more.

One final thought: Grits suspects there's an untold story behind the $89 million in un-recognized losses that deserves additional scrutiny, assuming any local reporters ever discover the story. According to the table in this 2017 MarketWatch story, Austin's police pension fund had 40% of its investments in "non-traditional" asset classes, which is the category that got the Dallas police fund in trouble. Are those the investments that are going south?

Further, a few years ago, the Statesman ran a story about the fund investing in several projects brought to them by two board members who were marketing themselves as consultants to companies seeking pension investments. They disclosed the relationships and abstained from voting, but the board had no rules barring such conflicts of interest and board members defended the practice.

Between the fund making relatively large investments in non-traditional assets, board members out hawking themselves to potential investment clients, and $89 million in un-recognized losses sitting on the books, my Spidey-sense tells me there may be a significant story behind how the fund went from (ultimately) solvent to not in calendar-year 2018.

*Underlying link changed after publication, amount corrected upward from $55k to reflect most recent available Census Bureau data.

Monday, August 19, 2019

Austin police pension obligations will swamp city budget if City Council doesn't change course

One of the most important, least-covered stories in the Texas criminal-justice arena must be the failure of Texas municipalities to fund police-officer pensions. For the most part, the issue only indirectly affects #cjreform efforts, so Grits has mostly discussed the topic as an aside, the way one remarks on a multi-car auto wreck occurring on the other side of the highway as one drives by.

But one place where the issue does come up is police staffing. In Austin this year, the city manager has requested thirty (30) new officers for Austin PD.

So far, the decision to hire new officers has been de-coupled from assessments of the city's obligations to pay officers' pensions when they retire. An audit report which came out last month shows why that must change.

Austin under-funds police officer retirement to such a degree, according to the report, that current contribution levels simply "are not sufficient to support the benefit structure of the System." Indeed, here's an eye-popping auditor's observation: "The City’s current contribution rate of 21.313% is not expected to amortize the unfunded liability over any amortization period."

In other words, at current contribution rates, the City will never cover its police pension costs. If the contribution rate was raised from 21.313% to 37.302%, the fund could become solvent 20 years from now! Make the contribution 29.5%, and it would take 40 years to set the books straight.

These are big, expensive, long-term problems. Austin cannot afford to pay for its police force right now, or at least they're not presently paying sufficient contributions into their pensions. And with new Legislature-dictated caps on how much cities can raise taxes, it's difficult to imagine how the problem can be fixed. Indeed, in this budget cycle, it cannot be.

So what can Austin do? Grits thinks of Will Rogers' excellent advice: "If you find yourself in a hole, stop digging."

Adding 30 new staff positions to the force when the city cannot pay for the ones it already employs makes no sense. Instead, City Council should be looking for ways to offload non-crime-related duties performed by police to other, more effective and less expensive staff.

They have just such an opportunity on the mental-health front. The Meadows Foundation has proposed an approach to mental-health first response that would put medical personnel on the front lines instead of armed police officers. A pilot program in Dallas implementing the idea found large reductions in arrests and use of force.

The Austin City Council should divert the resources proposed for those 30 new officers to fund a similar program in Austin.

Anyway, as a practical matter, it's doubtful Austin PD can fill 30 new positions, even if they are included in the budget. They are 102 officers short right now, a number which will grow to 125 by the end of the year due to normal retirement rates. Taking into account predictable attrition at the police academy (an average of 31% of recruits dropped out of the last five classes), plus the schedule supplied to the City Council for more recruit classes, it's pretty easy to calculate that APD will still have 75 vacancies, give or take, when budget season rolls around in 2020.

In other words, whether or not the City Council approve 30 new officers, the money will have no impact on staffing in the coming fiscal year.

By contrast, funding the mental-health crisis-intervention proposal with that money would reduce the demand for officers at the margins and avoid worsening the police-pension problem. That's definitely the smarter, and more fiscally responsible, approach.

No MSM coverage of this pension report so far, but IMO it's quite a big deal; it came out while Grits was on vacation last month. Long-time readers will recall that Ron DeLord, founder of the Combined Law Enforcement Associations of Texas and the lead negotiator of Austin's police contract, predicted in a Reasonably Suspicious podcast interview that cities would eventually reduce these lavish pension benefits. He argued that unions must prepare for the coming retrenchment. Those observations seem more prescient than ever, after reading this report.

Judges' 'unchecked power' to blame for high TX indigent defense caseloads

"Unchecked power" of and "conflict of interests" by local judges are the biggest barriers to reforming Texas' indigent defense system, reported Neena Satija, writing for the Texas Tribune and Texas Monthly. Go read the whole thing, excerpts won't do it justice.

Neena began this feature when working for the Trib, but was hired by the Washington Post in the meantime, so Grits had feared it might never come out. But it was worth the wait. Using Texas' database of attorney caseloads for defendants with appointed counsel, she explored how these high caseloads pressure attorneys to cut corners in ways that harm clients. She documented multiple instances of judges retaliating against defense attorneys for representing clients aggressively by refusing to appoint them in the future, or even handing off their cases to other lawyers.

Unstated in this story, but key to understanding the motivations at play: The two biggest sources of campaign contributions for local criminal-law judges are defense attorneys and the bail-bond industry. Lawyers give money hoping for appointments to cases and goodwill when they're in a judge's courtroom, while bail bondsmen want all sorts of little favors (like when judges make behind-the-scenes debt-forgiveness decisions about whether bond agents must pay up after someone absconds).

Two important justice reforms - creation of public defender offices and elimination of money bail - amount to indirect attacks on campaign contributions for judges. Without them, there is no incumbent advantage. That's the main, unspoken reason you see judges fighting both of those reforms.

For more background on the attorney-caseload issues at play in this story, see this interview with then-Texas-Fair-Defense-Project Executive Director Becky Bernhardt after the caseload recommendations came out in 2015.

To look up attorney caseloads in your own county, here's the link to the Texas Indigent Defense Commission database. No other state has data as good as Texas' on this topic, and Neena's story absolutely couldn't have been written without it.

Slavery, sugar, and the Texas prison system

Two New York Times articles published over the weekend deserve readers' attention for their illumination of racist history that informs many of the Texas topics covered on this blog.

First up, Bryan Stevenson has an excellent piece on the role of slavery in development of modern prison systems. While many authors have cited this history as the source of modern-day racial disparities, Stevenson focuses much more on slavery's contribution to Americans' acceptance of excessively harsh and dehumanizing punishments, including public torture and maiming of victims while white onlookers gathered in crowds eating deviled eggs and drinking lemonade.

Though not focused on Texas, Stevenson also described the convict leasing system common throughout the South that dominated Texas' prison system well into the 20th century.

In Texas and Louisiana, the story of convict leasing centered in large part around sugar, with the now-defunct Imperial Sugar in Sugar Land, Texas, the center of the industry in the Lone Star State. In Louisiana, we learn in another Times story titled, "The Barbaric History of Sugar in America," "Even today, incarcerated men harvest Angola’s cane, which is turned into syrup and sold on-site." The author argues that the modern American sugar obsession wasn't inevitable. Refined sugar would have remained a rare luxury product without the existence of a large, captive work force that could be coerced to perform labor which free men would never choose.

Every evil thing done to make sugar under slavery also happened on the Jim-Crow-era prison farms. The unmarked graves cropping up around the old Central-Unit property in Sugar Land are a testament to this dark legacy.

Serendipitously, on the most recent Reasonably Suspicious podcast, Michael Hall and I included a song in the Top Five Great American Prison Songs that speaks directly to the these sugar-plantation practices: "Ain't No Cane on the Brazos." I had never heard the original version before, and it's amazing. Give it a listen:

The song describes black prisoners cutting cane on the Brazos River from 1904 to 1910. At times this business was so deadly they'd run across bodies of fellow inmates on "every row," the song declared. (Some of those described are surely men whose corpses are being discovered now.) When cane couldn't be cut fast enough, according to the song, black women were brought in to work alongside the men. Every line is punctuated by mournful moaning in which the suffering in the cane fields is made heart breakingly palpable.

Indeed, this history was a big part of the reason Grits pushed for closing the Central Unit a few years ago. True, I'd like to close many more prisons, but there was a reason the Central Unit was targeted first. When the wind down took longer than expected, I wrote:
For my part, the Central Unit's economic role in the prison system's ag business was one of the reasons I favored it as a prime target for closure. Not only was Central's historic role symbolic, breaking it up would end some of the last remaining physical vestiges of the old convict leasing system, replaced to a lesser and far-less brutal extent in the modern era by in-house agricultural operations on the agency's vast real estate holdings. Grits isn't surprised it has taken longer than expected to untangle a century's worth of economic ties wrapped up in the Central Unit's operations, but I'm glad it's happening.
Certainly, one could point to stories (and songs) about inmates cutting down timber in the East Texas forests, or even picking cotton. But harvesting cane was especially deadly and unremittingly terrible. What happened at the prison units around Sugar Land was a human-rights tragedy of immense proportions, perpetrated with state government's profit-sharing cooperation and explicit stamp of approval.

Check out the two Times pieces linked above, they're describing important, seldom-discussed history with significant implications for the Lone Star State.

Friday, August 16, 2019

Additional Harris-DA staffing mustn't contribute to the 'low-rent arms race between prosecution and indigent defense' ... or, why Keri Blakinger is a journalism goddess

Now that Keri Blakinger exists, along with the Marshall Project, The Appeal, Google News feeds, and a variety of advocacy newsletters that weren't around before. Grits occasionally wonders if this blog still has much to offer.

Don't get me wrong. I know Keri existed before she showed up performing criminal justice coverage for the Houston Chronicle. I'm pretty sure I've read all she's written about her backstory. But her arrival on the scene in Texas was a game changer for journalism on criminal-justice topics, setting a new standard that's making politicians, journalists, and researchers of all stripes step up their game. In the last 30 years, I can't think of a reporter whose work has so significantly influenced the culture of Texas journalism.

The latest episode to make me consider her import involved Keri's coverage of a report from Texas Southern University's Center for Justice Research.

Normally, the findings of such a report would be promoted without comment by journalists of all stripes, first in the local newspaper, then on TV. Then, a few days later, it would fall to Grits to do all the "what abouts" and "isn't it true thats," which then may or may not be followed up on later if politicians or other stakeholders decide to press the point.

But Keri does this work right on the first pass. Amazing! What a breath of fresh air!

The biggest but not the only flaw in the report was that its top finding applied a standard of one prosecutor to 10,000 civilians to say Harris County needs 104 - prosecutors - magically, almost exactly how many District Attorney Kim Ogg asked for. Problem is, that one per 10k standard is completely made up!

The lead author of the TSU study backtracked, declaring, "the primary goal of the population analysis was to pick a baseline measurement for purposes of comparison, and that for the purposes of creating a ratio it didn’t matter if that standard was 'not adopted and not accepted.'" But for a standard that didn't matter, they leaned on it quite heavily: It's the top bullet point in their findings.

For the record, Grits is not among those, if they exist at all, who claims the Harris County DA's office has all the staff it needs. Rather, I believe 1) staffing increases should only be considered in the context of increases in indigent defense spending, where caseloads are also excessive, else the system become further imbalanced, 2) staffing increases should be targeted toward funding specific DA functions that reduce, not increase, incarceration (e.g., to manage diversion programming or expanding case screening at intake to include Class C misdemeanors), and 3) the office's decades-old structure of letting rookie prosecutors suffer high caseloads while more experienced lawyers supervise should be reconsidered from scratch. The office has been operated that way at least since Carol Vance's tenure; it's time to modernize. Funding an antiquated structure won't help.

This last point has been particularly under-considered. Jennifer Laurin at the UT-law school made the point in Keri's story that cross-agency comparisons don't consider differences in how agencies are staffed and what they do:
“There is sufficient variety in how jurisdictions staff cases, how they administratively count cases and how they structure workflow from police input to prosecutor decision-making that it is exceedingly difficult to compare,” Laurin said, after reviewing the document. “It might be that Harris County is not staffed at optimal levels but the comparisons the report provides in and of themselves do not provide evidence of that.” 
For instance, in some jurisdictions - such as Cook and Maricopa - the prosecutors’ offices represent the county in legal matters, a task taken on here by a separate entity, the Harris County Attorney’s Office.
For my money, it's possible and even likely the DA's office could use more staff. The same is true for indigent defense, and IMO those problems should be addressed simultaneously.

But Ogg proposed expanding her agency's attorney staff by nearly a third without identifying particular needs the new staff would solve. If she wants to make the case for more staff, take some of the office's asset forfeiture money and hire a consultant to identify new staffing that would contribute to reduced incarceration. Then the commissioners court will know what portions of the office's budget require expanded funding to achieve their decarceration goals, without simply aiding one side in the low-rent arms race between prosecution and indigent defense.

Cops make similar arguments to this report for more staffing all the time, complete with made-up staffing standards and fronting progressive goals while leaving lots of discretion to spend the money on regressive things. #cjreform activists, like myself, who distrust such broad grants of discretion, have simply been burned too often. If the problem is real, the request will survive (and IRL, be bolstered) by more research and specificity. What doesn't help is promoting a staffing standard somebody just pulled from their rear end.

It's breathtakingly awesome that Keri Blakinger exists and gets assigned to these stories. To me, her value has little to do with the fact that she's formerly incarcerated. I'm sure it adds something to the mix, but it's her skill set, work ethic, and tenacity that make her stand out. The fact that she essentially took over the Texas prison beat from a sycophantic senior reporter who just made stories up only heightens the contrast.

Grits for Breakfast is approaching the 10,000-post mark, and a huge proportion of those essentially add easily identifiable, counterfactual research to balance unsupported assertions published in MSM articles. I occasionally get mistaken for a reporter because that's a reporter's job, but not many of them do it. Keri does.

Indeed, the only problem with Keri Blakinger is that there is only one of her. If one or two more existed, your correspondent would have little to contribute here and could ride off into the sunset. But for now I'll remain a little longer; she is one of a kind.

Thursday, August 15, 2019

Podcast: Ranking the greatest American prison songs, a crowd-sourced exoneration out of Tyler, and other stories

Check out the August episode of the Reasonably Suspicious podcast. We've got a special treat this month, with Texas Monthly's Michael Hall stopping by to tell us about the latest innocence case he's been covering out of Tyler, and a special segment in which he and I rank the greatest American prison songs

Here's what's on tap this month:

Top Story: 
Hemp SNAFU led to de facto natural decrim experiment for marijuana in many counties.

Texas Monthly's Michael Hall tells the story of an actual innocence case out of Tyler that was broken open by a Michigan podcaster.

Scott and Michael Hall rank the greatest American prison songs. Go here for a YouTube playlist of all the songs we discussed, plus some from Scott's list that didn't make it into the podcast.

The Last Hurrah:
* DPS intel chief who warned of Mexican rapists arrested for sexual assault
* Texas House members create criminal-justice reform caucus
* Harris County bail lawsuit settled

Find a transcript of the podcast below the jump.

Tuesday, August 13, 2019

Causes of rising Smith County jail population are knowable, but officials like the system ineffable

The Smith County Jail population is growing, reported the Tyler Morning Telegraph, and the main reason is that the county is disproportionately incarcerating pretrial in routine cases. The DA told the paper,  “Over the years we see that that number trends upward sometimes and trends downward sometimes. There’s nothing specific that’s causing it to be higher right now.”

But we do know a few things about why the jail is so full. Reported the Telegraph:
While Smith County has 0.8% of the state’s population, the county jail had 1.2% of the state’s county jail population in 2019. The trend is consistent among most types of crime. 
In July, the county had 1.8% of people accused of misdemeanors awaiting trial; 3.6% of people convicted of misdemeanors; 2% of people accused of state jail felonies awaiting trial, 3.3% of state jail felons sentenced to state jail, and 2.3% of convicted felons.
With 0.8% of the state's population and 1.8% of misdemeanants jailed pretrial, plus 2% of state jail defendants awaiting trial, Smith County is disproportionately incarcerating lower level defendants pretrial compared to other jurisdictions. That's a self-inflicted wound. A whopping 65% of inmates in the Smith County jail as of last month were incarcerated pretrial. That's the result of decisions by local elected officials in the judiciary and the DA's office, not just some random event.

Similarly, they're using county jail to incarcerate people as punishment for misdemeanors much more often than the rest of the state. Again, they have 0.8% of the state's population and 3.6% of Texas defendants jailed after misdemeanor convictions. That's 450% above the statewide rate! The number is small-ish (55), but the fact remains for multiple categories of defendants, Smith County officials are using incarceration much more frequently than the rest of Texas.

Some of the same solutions Grits recently recommended for Denton County would certainly be in order. But the problem in Smith County is worse.

Local reporters in Tyler interested in digging deeper should try to replicate Texas Appleseed's recent analysis of jail bookings to identify cohorts of prisoners who don't need to be locked up for public safety purposes. It's simply not true that the cause of rising jail populations in an era of declining crime is unknowable. It's just that they're not telling you.

Monday, August 12, 2019

Are Texas' prison population reductions significant?

On the Reasonably Suspicious podcast this month, my co-host Amanda Marzullo and I discuss Marie Gottschalk's article about Texas justice-reform efforts in the Baffler, in which she argued that Texas' decarceration reforms had been overstated and demonstrated the limits of left-right coalitions on #cjreform.

Since Grits had to look them up for our podcast conversation, let's record some data links here before I clear my browser tabs.

I largely agree with Gottschalk's assessment of Texas' progress, and have said much the same thing before. (Indeed, Grits was quoted in her article.) Moreover, her observations about the cognitive dissonance between the Texas Public Policy Foundation's Center for Effective Justice supporting state spending on mental health and drug treatment, while other parts of the organization oppose Medicaid expansion, are difficult to argue. (Check out the podcast, out this week, for that discussion.)

But there's an extent to which her complaint is overstated. Texas undeniably has made significant progress.

For example, the latest annual statistical report on the Texas corrections system (2018) is out. As of August 31, 2018, Texas' prison population  was at 145,018 - as as low as it's been in two decades, and down seven percent from a high of 156,126 in 2008.

But Texas' population has boomed over the intervening years, so the overall incarceration rate has declined. For example, in 1999, Texas had 149,684 prisoners. But the state's population back then was 20.4 million. By 2018, the state population was up to 28.7 million.

So, in 1999, Texas' incarceration rate per 100,000 people was 734; in 2018, it was 505. That's a 31 percent decline. From a number-of-people incarcerated standpoint, Texas' prisoner reduction happened mostly because the parole division reduced technical revocations and increased parole rates for lower risk inmates. But population growth is the bigger factor in lowering the rate.

Among reformers back in the '03-'07 period, none of us fantasized that what was later dubbed the "Texas model" would radically reduce the number of people incarcerated, especially after Governor Rick Perry vetoed the legislation in 2005, allowing only a weakened version to pass in '07. The goal was to stop the sharp upward curve, and to build momentum for future reforms.  And only the first part of that goal was achieved.

The reason I largely agree with Gottschalk's argument is that Texas hasn't really done anything since then on the decarceration front. We've been a leader on innocence, on forensics, and made strides on debtors-prison reform. But the only major decarceration measure that's passed since 2007 was the 2015 increase in property-theft thresholds. And that little-noticed item only passed as a Senate amendment to a House bill tacked on by Konni Burton; the legislation couldn't make it through the process on its own.

Crime has plummeted over the last 20 years, but prison populations in Texas were affected only a little.

As of 2019, decarceration progress in Texas has utterly stalled, while red states like Oklahoma and Utah have reduced drug possession to a misdemeanor and enacted decarceration reforms of which Texans can only dream.

So the Lone Star State has made more progress on prison decarceration than its harshest critics might grant. But it remains inarguable that there's much more to do. And the Texas Legislature, particularly the Texas Senate, has at this point relinquished all momentum toward further progress.

Monday, August 05, 2019

Harris County bail-reform settlement a landmark defeat of Texas bail-industry lobby

There once was a county named Harris 
Whose bail system left them embarrassed
Then judges were sued
And elections did lose
So now lo and behold they can settle this!

The bail settlement in Harris County may not be as important, when viewed through an historical lens, as Brown vs. Board of Education, despite Harris County Commissioner Rodney Ellis' grandiose declaration to that effect. But it's still a Very Big Deal, and the first domino to fall in what will ultimately conclude with a 5th Circuit (or US Supreme Court) decision governing pretrial release of criminal defendants in Texas.

Harris County judges have enacted a "new policy of automatic, no-cash pretrial release for about 85% of low-level defendants," reported the Texas Tribune

Art by Grits. Click to enlarge.
The settlement news warms the heart of this aging polemicist. Excessive pretrial detention in Houston was one of this blog's earliest hobby horses, presaging many of the debates which ended up resolved through federal litigation nearly a decade-and-a-half later. For example, check out a series of Grits posts on the topic rounded up in 2005 after the Harris Co. probation department began using them as training materials. Most of those critiques would remain salient until well after the just-settled litigation got serious, at which point the county began to implement more significant changes. At the time, though, there were 1,900 people sleeping on the jail floor due to overcrowding, so in a way, the issue was even more pressing back then.

Which is why it's worth recognizing that it took the federal courts to accomplish these changes that every expert who ever looked at Harris County's system had been advising for more than a decade. For whatever reason, whoever won elections, red or blue, there was never any appetite for serious bail reform through the political process. Someone had to sue, and win, to get judges to stop ordering bail for most misdemeanor defendants. (Many of the reasons for that are specific to Houston; your mileage may vary in other jurisdictions.)

Another notable point: At the commissioners court, as at the Texas Legislature, bail bondsmen found champions but could not sustain a majority after an informed debate. That's my big takeaway from those two, recent bail fights, one where reformers lost and one where they prevailed: At both the state and local level, bail bondsmen have shown they can be beaten. They had an impressive track record before this year, and the first half of 2019 may have finally demonstrated some chinks in their armor.

Here's why I disagree with Rodney Ellis that this litigation settlement is as important as Brown vs. Board of Education: While it resolves the underlying issues, it also robbed the 5th Circuit (and/or SCOTUS) of the opportunity to set a baseline that applied to all Texas, Louisiana, and Mississippi jurisdictions. Instead, the settlement terms only apply to Harris County and at most are advisory recommendations everywhere else.

So it will be some other county currently being sued - probably Dallas, I'm told by attorneys involved in the litigation - which ends up setting binding precedent for Texas courts, particularly with regard to setting bail in felony cases.

Once that happens, the Texas Legislature will be in a much better position to know what bail-reform legislation should look like when they come back in 2021.

Friday, August 02, 2019