'Progressive prosecutors' not all so progressive on bail reform

At the Texas Tribune festival this weekend, Josie Duffy-Rice, president of The Appeal, moderated a panel with three Democratic Texas District Attorneys - John Creuzot of Dallas, Margaret Moore of Travis County, and Mark Gonzalez of Nueces County.

(L-R) Josie Duffy, John Creuzot,
Mark Gonzalez, and Margaret Moore

An audience member asked the panelists whether they favored providing defense attorneys to defendants at "magistration," where judges set bail amounts defendants must pay to get out of jail pending trial.

Gonzalez failed to answer the question directly, conflating magistration with plea bargaining and insisting that his office was more fair than his predecessor.

Moore also talked around the issue, but in essence said she didn't think providing counsel at bail hearings was necessary. Prosecutors don't even attend those hearings in Travis County, she declared, an assertion which Grits found dubious. After all, the county indigent defense plan anticipates prosecutors may "fil[e] an application" with the court at magistration, while indigent defendants may apply for an attorney at that point, but don't get one until later. Moore suggested that a post hoc bail-review hearing was sufficient to protect defendants' liberty interests.

Creuzot was the only DA who said, definitively, "Yes," defense attorneys should be provided at magistration. He blamed Dallas judges who appealed the federal injunction for blocking the move, although at least one judge supports the idea. (The county commissioners court, which would have to come up with money to pay for additional defense counsel, surely also is a barrier to implementing that idea.)

Grits found this discussion dissatisfying, given recent developments in Texas bail-reform litigation.

In Galveston, in particular, a recent federal-court injunction explicitly required the county to provide attorneys at magistration. This was not mentioned.

Harris County eliminated magistration in 85 percent of misdemeanor cases to avoid having to make individualized determinations, and launched a pilot program to provide a public defender at bail hearings for the other 15 percent.

In Dallas, a federal judge said magistrates couldn't rely on a pre-set bail schedule without considering individual circumstances. Articulating those, of course, is a defense attorney's job. The injunction has been appealed, but the judge's order would require these hearings to occur within 48 hours of arrest.

So, if we're reading tea leaves here, in all three jurisdictions, federal judges have said that non-individualized bail hearings are unacceptable and that release decisions must be made promptly.

In that light, claims that it's sufficient to review non-individualized bail decisions later, as DA Moore declared, strike me as optimistic, at best. All the federal court rulings in Texas so far have required more.

Certainly it's insufficient to address the issue during plea bargaining, as Mark Gonzalez maintained! Part of the problem with excessive pretrial detention is that it makes defendants more likely to accept unfavorable plea bargains.

The US constitution forbids "excessive bail," not bail per se, so it's unlikely federal courts will ever "abolish money bail," as most #cjreform advocates would prefer. But it also seems clear to this observer that federal courts will eventually require individualized bail determinations, likely at magistration.

We've now seen three different options emerge from federal courts for how to do that: Provide counsel at magistration, as in Galveston; hold individualized hearings within 48 hours of arrest, as in Dallas; or simply eliminate bail determination hearings for most nonviolent cases, and provide lawyers at magistration for the remaining subset, as Harris County is doing.

No one can tell which of these options will be required writ large across Texas until the 5th Circuit rules in one of these cases. Now that the Harris County suit has settled, it seems likely that Dallas will be the first to reach that stage. Their preliminary injunction came out more than a year ago, while Galveston's only emerged last month.

Regardless, Creuzot was the only DA on the so-called "progressive prosecutor" panel who gave what Grits would consider a "progressive" answer on bail reform. Letting folks sit around in jail because they're too poor to pay just isn't good enough, anymore.

Podcast: Texas bail reform litigation, demagoguery on crime in Houston, and Grits' contribution to new TDCJ Hep C litigation

Here's the September 2019 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted by Scott Henson and Amanda Marzullo. Special thanks to Scott Medlock, who's suing TDCJ over failure to adequately treat Hepatitis C. I didn't realize until he told me the idea from the suit originated from a Grits for Breakfast blog post several years ago! That's exciting. Here's this month's episode:


In this episode:

Top Stories

• Harris and Galveston County bail litigation - 1:40
• HPD Chief Art Acevedo demagogues on bail reform - 10:30
• Interview: Attorney Scott Medlock on TDCJ Hep C lawsuit - 14:45

Fill in the Blank

• TPPF on police union politics - 27:45
• Crime debates in Houston mayor's race - 32:45

The Last Hurrah (37:25)

• DPS stops patrols in Dallas
• Do Dallas police murder indictments signal changing attitudes?
• Oklahoma parole changes a model for Texas?

Find a transcript of this episode below the jump.

The case for risk assessments despite allegations they are racist

Here's an unpopular take that I'll probably regret offering:

Grits finds himself a tad annoyed with well-intentioned liberals crowing from the rooftops that risk assessments in criminal justice fields are "racist," and wishes these debates allowed for more nuance.

While I agree that criminal-justice data skews to overstate risk for black folks, I don't necessarily agree that foregoing data-driven risk assessments achieves better outcomes. Judges making seat-of-the-pants decisions rely on the same discriminatory data, and incarcerate people of all races at greater rates than risk-assessments would dictate.

Let's cut to the chase. Consider a thought experiment in which a jurisdiction is 85% white and 15% black. In this jurisdiction, based on judges' stand-alone decisions, 100 people are being held pretrial, and the proportions by race are 60 white folks and 40 black folks, so there's a significant racial disparity.

Now lets say the risk-assessment algorithm also discriminates because of the use of data from a system embedded with a racist, even white-supremacist ideology, as well as historical disparities in violent crime rates by race.*

For the sake of argument, let's say the risk assessment labels 1 in 3 white people incarcerated as "low risk" and recommends release, but only 1 in 4 black defendants. Now let's assume judges release every inmate labeled "low risk." What would be the result?

Under this scenario, 40 white people would be incarcerated compared to 30 black people. Thus, the percentage of black folks incarcerated would go up, from 40 to 43 percent. So, it's possible to accurately say that use of the risk assessment INCREASES racial disparities.

But which outcome is better from a civil-rights perspective - 40 black folks locked up in jail or 30?

I'm a middle-aged white guy and certainly can't and won't attempt to speak for black people. But my own belief is that the outcome under the risk-assessment model is more tolerable. Others' mileage may vary.

What am I missing here?

CAVEAT: There are many offenses where no risk assessment need be used at all. In the Harris County bail settlement, 85% of misdemeanor defendants will be released without a bail determination hearing of any sort. Where that's not possible, IMO risk assessments are superior to judges making the determination on their own, at least until someone convinces me otherwise.

*Violent crime rates among black folks have been declining dramatically in recent years, falling at greater rates, even, than overall crime declines. But the rates remain higher than other racial categories. According to the 2017 National Crime Victimization Survey, "Based on victims reports, there were about four fifths as many white [violent-crime] offenders as the percentage of whites in the population, [and] about twice as many black offenders as the percentage of blacks in the population." Because most victims of violent crime are attacked by someone of the same race, this also translates into more black victims: "For the year 2015, blacks represented 13 percent of the nation’s population, yet accounted for 51 percent of all homicide victims." This dynamic is a source of some but by no means all of the disparities attributed to risk assessments.

Policing policy, forensic follies, the high cost of treating Hep C in prison, and other stories

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

Lawsuit seeking Hep C treatment could come with BIG pricetag
More than 18,000 Texas prison inmates have been diagnosed with Hepatitis C - almost certainly an undercount since TDCJ does not do comprehensive testing - but only a tiny handful receive treatment. The Houston Chronicle reported on a new federal lawsuit demanding they receive treatment, which could cost up to $63,000 per person. See prior Grits coverage and video of testimony from 2014 regarding Hep C treatment in TDCJ.

Conservative think tank takes on police unions
In a significant development, the conservative Texas Public Policy Foundation published a new report criticizing police unions for undermining police accountability reforms. In Texas, conservative politicians in the 21st century have largely kowtowed to these groups. Maybe the state's leading conservative think tank can convince them that's a bad approach. In related news, in St. Louis, prosecutors voted last December to join the local police union in response to the election of a new, reform-minded DA. This academic article makes the case that "This complete and public union of prosecutorial and police interests represents a collapse not only of prosecutorial ethical standards, but also a very real threat against democratically elected prosecutors who would seek to enact the reforms that their constituents desire."

Deep data dive for Big D and H-Town
The project by the Texas Criminal Justice Coalition and January Advisors to publish "data dashboards" for Harris and Dallas Counties' arrest, dismissal, and conviction information allows for important analyses that have never been possible before from publicly available data. They just published this overview of the project, which includes links to the dashboards and a description of what's there.

Handful of police-officer indictments in Dallas stand out
The Dallas DA's office has indicted four police officers for murder in three years, with two of them convicted. The trial for another, Amber Guyger, begins Monday. Notably, the indictments came under both Republican and Democratic District Attorneys. The Dallas News has a story describing how rare this is at other agencies. Even in Dallas, only one officer was indicted this year out of 50 (!) officer involved shootings taken to grand juries. Despite the rarity of such developments, the head of the local police union was quoted saying the indictments were evidence of anti-police bias.

DPS out of Dallas, with mixed reviews
The Department of Public Safety has ended its deployment in Dallas launched by the governor earlier this year. According to an item from the Houston Chronicle's Austin bureau, "The influx of state troopers drew criticism from some residents and a city councilman, who called for the operation’s end after hearing complaints that enforcement was unfairly targeting people of color, The Dallas Morning News reported. In August, two troopers fatally shot a Dallas man who the agency said pulled a handgun after a traffic stop, the News reported." Despite these criticisms, DPS Col. Steve McCraw declared the operation a success, declaring  "Certainly there's been some that don't appreciate it, usually the ones that are arrested or have relatives arrested, and we understand that." That seems like an odd assertion when one of the most vocal critics is a city council member.

DNA analyst resigned over high-profile error
Grits had missed the news in August that a DNA examiner resigned at the Forensic Science Commission after a report by her employer found that she had testified incorrectly in a high-profile murder case in which a UT student was strangled, declaring the defendants' DNA could be excluded when that was not true. (She worked for DPS at the time she gave the testimony.) Though she told FSC investigators she "misspoke," she did so TEN times. The commission found that her error constituted professional "negligence," but not "misconduct." Whether or not there was any bad intention behind the mistake, it highlights the difficulties and pitfalls of interpreting DNA mixture evidence, which is more subjective and less definitive than one-to-one DNA matching.

Can refined patrol strategies free up more officer time?
A criminologist at UT-Dallas developed an algorithm to help the Carrollton PD refine its patrol strategies so officers waste less time in their vehicles. Notably, the recent staffing study for Dallas PD similarly recommended refining patrol routes to free up officer time spent driving long distances.

Does EMS need tactical teams? Montgomery County thinks so
The Montgomery County Hospital District has created a tactical team to join local police on SWAT raids. One paramedic said he joined the team because "There was more of the excitement appeal."

Alternative to police response for mental health, homelessness, substance abuse
Regular readers know that Austin recently funded a new program to have medical personnel respond to some mental-health calls instead of police. At the same time, the city has been engulfed in a debate over how to confront homelessness. A program out of Oregon called CAHOOTS demonstrates an approach that could address both issues with a non-police response. Medical teams in a van respond to mental health crises and provide services to people suffering from substance abuse or homelessness, leaving law enforcement out of the equation. That's a great idea.

Okies boost parole rates
Parole rates in Oklahoma are up 41 percent from last year, and commutations (which previously almost never happened) are up 1,300 percent, reported the Tulsa World. Texas parole rates remain stagnant in recent years at around 35 percent. Most offenders in Texas prisons are parole-eligible and could be released today if the parole board agreed.

Policing practices parsed in Congress
The US House Judiciary Committee held a four-hour oversight hearing this week on policing practices. Watch it here.

The public's cognitive dissonance over forensic science
A new academic analysis finds that the public is losing faith in the accuracy of forensic science, but still believe forensics over other types of evidence. As evidence of this cognitive dissonance, "Respondents still believe that forensic evidence is a key part of a criminal case with nearly 40% of respondents believing that the absence of forensic evidence is sufficient for a prosecutor to drop the case and that the presence of forensic evidence, even if other forms of evidence suggest that the defendant is not guilty, is enough to convict the defendant." (Emphasis added.)

A new constituency for  pot legalization?
Should convenience-store owners become marijuana legalization proponents? It might boost their sales. A academic analysis published in February found that legalizing recreational pot use resulted in increased junk food sales.

The eugenicist who gave us fingerprint identification
I didn't know that the original creator of fingerprint identification in the 19th century was also the enthusiastic progenitor of the eugenics movement. It doesn't sound like the fingerprint discipline has changed much since he first convinced Scotland Yard to undertake it.

The criminogenic effect of police stops on black and Latino boys
A study published in April found that "the frequency of police stops [of black and Latino teenage boys] predicted more frequent engagement in delinquent behavior 6, 12, and 18 mo later, whereas delinquent behavior did not predict subsequent reports of police stops." In other words, police stopping minority youth was predictive of future delinquency, but self-reported engagement in delinquency was NOT predictive of police stops! The implication is that proactive policing strategies like stop-and-frisk may actually cause juvenile crime instead of deterring it.

Initial thoughts on the Great Austin Homelessness Debate

Yesterday, more than 150 people spoke to the Austin City Council on proposed revisions to their homeless decriminalization ordinance passed in June. (See initial MSM coverage here and here.) They won't finally vote until tomorrow, but here are a few initial thoughts:

• Despite the local media clambering onto the bandwagon of NIMBY opposition and the local GOP calling for re-criminalization, Austinites supporting decriminalization made up the majority of speakers. Those voices hadn't been portrayed much in local press coverage, but there were quite a few more of them than critics.

• Numerous local organizations - almost none of whose positions had been covered in the intensive press buildup to the hearing - formally supported the city council's decrim position. Here's a list Just Liberty compiled of those groups and presented to the council.

• Most of the opposition to the June decrim ordinance came from white folks over 50. With few exceptions, they pretty much all made the same argument: we don't want to see homeless people or their stuff in public, don't want to pay for services for them, and we fear for the safety of our women-folk. A few critics did say they supported work by charity organizations like Mobile Loaves and Fishes, but ignored that the groups they praised disagree with their position on the decrim ordinance. 

• About 30-40 decrim opponents arrived wearing blue shirts that said "Take Back Austin." A representative of that organization declared that they'd formed three weeks ago and already had 3,000 members. Apparently, this bunch want to take Austin back from the city's majority, since decrim supporters outnumbered critics and only about 1% of their alleged membership showed up.

• Notably, despite the local GOP's ill-advised entry into the fray, Take Back Austin doesn't even represent the views of all conservatives. I was there  recently when a representative from that group came and pitched their petition at a meeting of Texans for Accountable Government, a liberty-minded conservative activist group. His comments alienated most of the room and he left without an endorsement.

• Many decrim critics were incredibly angry and rude - especially for the first hour or so, people would holler out and interrupt speakers from the other side, or talk loudly among themselves when someone was speaking with whom they disagreed. I thought their behavior discredited them nearly as much as their lack of sound arguments. The mayor demonstrated extreme patience in not kicking out the worst offenders.

• A UT-Austin group called SafeHorns has been one of the most oft-quoted critics of the city council during this debate, claiming to speak for UT students. But this week Student Government at UT-Austin voted to support the city council's decrim measures. And nearly all of the young people who spoke were against rolling back the council's June ordinance. So it's now clear those few voices given an out-sized platform by local media don't necessarily speak for the whole student body.

• By contrast, decrim supporters included folks across the age spectrum, but skewed younger, much more diverse, were more solutions-oriented, and endorsed a greater variety of more nuanced perspectives.

• Chas Moore from the Austin Justice Coalition read city council the riot act, emphasizing that only seven percent of Austin's population is black but around 40% of homeless people are. He suggested (and IMO it's almost certainly true) that that's a big, underlying cause of the opposition.

• Grits also appreciated that several white women addressed the "protect our women" trope, describing how that meme had been used to justify racial discrimination and even lynchings throughout American history. I was grateful someone confronted that head on, it was a necessary antidote to some of the Jim-Crow-esque rhetoric being casually thrown around.

• The role of Class C misdemeanor enforcement came up a lot. When homeless folks were ticketed for sitting or lying under the old regime, they couldn't pay so the tickets would turn into warrants. Then later, they'd be arrested and, when they got out of jail, all their belongings had been stolen or confiscated by police. A woman described the agony of losing every family photo she owned that way. (That was the only time I genuinely teared up. My family photos are among my most precious belongings.)

• Testimony from homeless people was generally excellent. A consistent story from the pre-decrim days involved being rousted while sleeping, told to move from where they were, but having no place to go. People described being robbed or having belongings confiscated because they couldn't leave their stuff even to apply for a job. Others emphasized the inability to find a place to shower, to find transportation even to apply for services. A theme from decrim supporters that resonated throughout the day was that, if council wanted to know what homeless people need to improve their lot, somebody should ask them instead of just listening to the angriest voices in the room.

• One of the few things nearly everyone agreed on was that the rising cost of living in Austin was driving much of the homelessness problem. Republicans in the room wanted to attribute that to taxes, but in truth, most of it is driven by the market. Californians sell their Bay-Area two-bedroom for $1.2 million then show up in Austin and drive up local prices. (E.g., I live in a house that my wife and I rented for $190 a month in the 1990s, before buying it from the landlord in '96 for $40k at the nadir of the Savings and Loan bust. Today, it's on the tax rolls for more than $450k. Sure, our taxes are higher, but that's not the main thing making Austin un-affordable.) Calls for emergency rent subsidies and grant subsidies to promote home ownership were some of the more interesting suggestions that cropped up on this score.

As a white homeowner over 50 who's now lived in Austin for 34 years, Grits couldn't really understand the over-the-top animosity coming from others who share my subject position. I spend a fair amount of time downtown and there are homeless folks in my neighborhood. I simply don't see the wave of new problems described by the loud, angry "Take Back" crowd throughout the day. I see a few more homeless people now - mostly camping under overpasses more openly - but I haven't witnessed any new issues that public restrooms, showers and trash-pickup services wouldn't resolve.

Moreover, most of the things critics say drive their concerns with homeless people - trespassing on private property, physically attacking or intimidating people, urinating or masturbating in public - are still illegal. Nothing about the ordinance legalizing sitting and lying down in public changed that, so many of the complaints frankly seem disingenuous.

Comments from councilmembers seemed to indicate that there are sufficient votes to resist the more draconian rollbacks of the decrim ordinance being suggested, but there's no way to tell for sure until the City Council votes tomorrow. Here's hoping they stick to their guns and do the right thing.

UPDATE: For now, the city council rejected reinstatement of the no-sit/no-lie ordinance. Four backed expanding the ordinance even further than it went before the law was changed in June. Five including the mayor endorsed less expansive changes that would reinstate it only around homeless shelters, aiming to address people congregating outside the downtown homeless shelter and a new one being built in South Austin. And two - who in the end, won the day - said the council was being reactive and should give the city's new homeless coordinator who was just hired time to assess the situation and make a recommendation. The council agreed to hold a work session in October to discuss matters further. (Ugh. :/)

The Art of Deflection: HPD chief shows how to blame judges for policing failures

Police chiefs in Harris County continue to attack bail reform - most recently Houston police chief Art Acevedo - but the examples given never seem to bear out their complaints. Acevedo yesterday went on local TV to blame judges for releasing a defendant who later ended up shooting a police officer with his own gun after a struggle.

His comments came at the scene of an unrelated police shooting near a school where the suspect was killed, and the chief attempted to conflate the cases. In the Fox26 news story, he succeeded in conflating them; the article was so poorly constructed, I had to go to other sources to figure out what the hell he was talking about. Reported Fox26:

Acevedo threatened to call out judges who grant bond to violent offenders while speaking at the scene of an officer involved shooting on South Gessner Monday. The shooting happened as one of his officer [sic] is recovering from being shot Thursday by a suspect who was out on bond. 

Court records show that suspect—Brandon Bell, 17—paid zero dollars to bond out of jail two weeks ago after allegedly carjacking a woman at gunpoint. 

"If you lived in a high crime area and you knew that these judges were gonna let a violent criminal go in one door and within a matter of hours or a day or two get out on a low bond, do you want to testify against them?" asked Acevedo.

Brandon Bell was NOT the shooter at the school where Acevedo gave the comments, but you really can't tell from the story until the final line, when the reporter finally named the deceased.

It turns out, however, there's more to Mr. Bell's story than the chief is letting on: "In Brandon Bell's case, records show he bonded out on a misdemeanor trespassing charge September 3, before investigators could collect enough evidence to charge him with felony aggravated robbery with a deadly weapon."

So think about what's being said: Acevedo crows to the media that Bell was let out on a personal bond for carjacking, and the reporter dutifully repeats the claim. But she already knows that's not exactly true, and buried the counterfactual at the bottom of the story. His officers hadn't filed the carjacking charges when he was released, only misdemeanor trespassing!

How long should courts hold misdemeanor defendants to let police investigate them for crimes with which they haven't been charged? On what basis should they have detained the 17-year old, who in most other states would have been charged as a juvenile?

In America, police don't get to arrest people and hold them in jail when they are unable to supply probable cause the person committed an offense. And if they'd presented evidence against Mr. Bell in the carjacking incident, he'd have been charged with a felony and remained in jail. The failure to do so is the only reason he wasn't held longer.

The judge who bonded the guy out told the reporter:

Judge Darrell Jordan who approved Bell's bond told Fox 26 he was just following Texas law. 

"If there is a trespassing case or something like that—then that person will be released on a general order bond," said Jordan. "The bond amount will say $100, but they pay nothing."

Even if Bell had been required to pay the $100, that's not going to keep anybody off the streets for long. The real issue is Houston PD and the DA's office hadn't charged him with anything more serious, even though he'd allegedly committed a carjacking. Two weeks later, the kid shot a police officer.

This is pure deflection, blaming judges for Houston PD's own failures.

MORE: For those interested in more detail, Don Hooper of the Houston Conservative Forum posted the police affidavit on Twitter alleging Mr. Bell engaged in carjacking, and proceeded to argue the details of the episode (contentiously) with a cop. The complainant recognized the carjacker at the scene, and a robbery detective conducted a photo array on the same day in which she identified him again. But police didn't file the affidavit alleging the carjacking charge until Sept. 9th, after Bell had already been released. How is this the judge's fault, again?

Police shootings, jailhouse snitches, and debunking anti-bail-reform arguments

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

Federal judge debunks anti-bail reform arguments from Harris DA
Federal District Judge Lee Rosenthal, a George W. Bush appointee, approved the bail-reform settlement in Harris County over objections from District Attorney Kim Ogg. See coverage from The Appeal  and Houston Public Media. The judge's order address the DA's objections specifically, and IMO decisively.

Bail-reform injunction issued in Galveston
Another federal judge issued an injunction against Galveston County requiring reform of their bail system. The judge would  require the county to provide counsel for indigent felony defendants at their initial bail hearing. By contrast, the Harris County case only involved misdemeanor cases. See the Texas Tribune's coverage.

Speaking for the defense: The only time prosecution theories are excluded from crime stories is when police officers are accused
I have never seen a major newspaper run an article promoting ONLY defense-attorney theories prior to the trial of a murder defendant, except when the defendant is a police officer. Then, we get stories like this one from the Dallas Morning News explaining why a jury should acquit former Dallas police officer Amber Guyger for killing Botham Jean in his home.

'Excited delirium' is still not a real thing
Speaking of Big D cops, Dallas DA John Creuzot told an audience last week that his office chose not to indict the cops who killed Tony Timpa because one of them patted him on the back and tried to comfort him after kneeing him in the back and mocking him as he lay dying. Creuzot said Timpa died of "excited delirium," which he apparently thinks is a real condition that can be treated with Xanax. But regular readers know that's a fake diagnosis that is only ever assigned to people who die in police custody. The Washington Post has reported that the diagnosis appears in no medical textbooks outside of training materials for medical examiners.

Gap in TX jailhouse snitch reporting system cited
Texas' 2017 statute requiring Texas prosecutors to keep records on their use of jailhouse snitches and report snitch's history to the defense made an appearance in this Washington Post story on jailhouse informants. However, the article noted, "Although Texas and other states are now tracking the use of informants, county prosecutors are keeping the records and only Connecticut will be keeping a statewide system, Innocence Project lawyers said. One problem, they said, is prosecutors in one county may not know about an informant’s testimony in other counties." In addition to the 2017 statute, Texas in 2009 required corroboration to secure a conviction based on jailhouse informant testimony, and in 201 the Lege required corroboration for informants in drug cases.

Reminder: Lying snitches need prosecutor collaborators to do harm
Speaking of informants, prosecutors failing to disclose a deal with a snitch in George Powell's prosecution for armed robbery - along with flawed and unproven forensic evidence - contributed to his conviction being recently overturned. The informant lied on the stand and prosecutors failed to correct the misstatements, the courts found. Now, the Bell County DA wants to retry Powell, and defense attorneys want his office removed from the case because of the alleged misconduct.

Lessons on policing, poverty, and racial discrimination
This analysis of policing, poverty and racial discrimination at the Tulsa (OK) PD includes lessons applicable in virtually every American police department.

Local press calls out Houston mayoral candidates' false statements on crime

Challengers in local political races love to engage in demagoguery about crime and try to blame the incumbents. That becomes a tad more difficult when crime is actually low. But usually they can still get away with it because the local media thinks their job is to "quote both sides" (in this case, the two sides being "lies" and "reality") and will put out their message even when it's false.

So we must give credit where it's due to St. John Barned Smith and Jasper Scherer of the Houston Chronicle for their article on crime debates in the Houston mayor's race. Drawing on lessons national journalists have had to learn in the age of Donald Trump, they wrote a piece that calls out exaggerations and falsehoods about crime in a way that's incredibly rare for local reporters.

Challengers to Mayor Sylvester Turner attempted to mislead the public about crime in the wake of his recent State of the City speech.

“I know what’s going on in this city,” [millionaire attorney Tony] Buzbee said. “Don’t tell me crime is going down when everybody across the country knows that Houston is one of the most dangerous cities in the United States.” 

Bill King, another prominent mayoral contender, has decried a “growing randomness and violence to crime that alarms people.”

The next paragraph, though, let's us know that these reporters have learned a lesson or two about lying politicians that makes your correspondent a bit more sanguine about the profession:

While experts say such arguments aren’t unusual for political challengers, the numbers largely say otherwise. Like the rest of the country, crime in Houston has plummeted over the last 30 years, as has residents’ fear of crime being the city’s most pressing problem. FBI data show that most categories of crime in Houston have fallen or remained stagnant during Turner’s term, which began in January 2016. Criminologists also scoff at the claim that Houston is among the country’s most dangerous cities.

During Turner's term, in fact, "From 2015 to 2018, murders dropped and robberies fell; burglaries decreased; thefts fell; and fewer vehicles were stolen. The exceptions were aggravated assaults and rapes, which rose in 2017 before declining again in 2018." On Buzbee's campaign website, by contrast, he insists without a shred of evidence, "All types of crime are on the rise." That's patently false.

Indeed, your correspondent was quoted in the story declaring, "“We are at the bottom of a 30-year decline, more or less, in the crime rate,” and insisting, “Houston is safer than has been for a really long time, honestly, is the truth of it."

Buzbee says that Houston has more crime than 95% of American cities, which is true, but misleading. Heck, since Houston is the third largest city and there are nearly 20,000 municipalities in the United States, I'd have said more than 99%. But that's a meaningless number. Comparing crime totals in Houston to those in Dalhart or Raymondville is a silly and pointless exercise. The article quoted national experts to give context to the claim:

“When we talk about the murder capitals of the country, the violent crime capitals of the country, Houston is not one of the cities people put on that list,” said Jeff Asher, a New Orleans-based criminologist. “At least anyone familiar with the data.” 

Ames Grawert, senior counsel for the Justice Program at the Brennan Center for Justice in New York, said it is misleading to compare the crime rate of a city with 2.3 million people to those of small towns, which frequently have much lower crime rates. 

A more accurate measure, he said, would be to look at other large cities across the country. 

Among the nation’s 30 largest cities, Houston’s murder rate “is thoroughly middle of the road,” Grawert said. “I don’t see Houston as being one of the more ‘violent’ places in the country.”

Buzbee insisted that, if he were mayor, Houston would add 2,000 police officers to the force (currently with a little more than 5,000 officers), over his first four years. Mayor Turner, by contrast, has suggested adding 500.

Buzbee's suggestion is simply ridiculous (and thus, demagogic) to anyone who understands municipal budgets. The Legislature just capped spending increases by municipalities, so adding that many officers would require eliminating spending on things like roads and flood control. There's no math that makes the suggestion work, it's just silly on its face.

By contrast, Turner's other opponent had a more legitimate criticism:

King contended HPD’s increase in sworn officers under Turner is “window dressing,” because the officers have to perform the functions of the declining civilian employees. Soon after taking office, Turner vowed he would never lay off any police officers.

King is right about the civilian staffing. I like Mayor Turner and was a fan of his when he was in the Legislature. But even then, he has always been in the pocket of the police unions and was never comfortable bucking them. King is right that the decision to lay off civilian staff instead of cops was short-sighted. Having more expensive, uniformed officers provide clerical and support functions is wasteful, bad management.

That's why, when Dallas hired management consultants to tell them how many more officers to hire, they couldn't get a hard number. How many cops you have is less important than what those cops do. The consultants in Dallas told the city council, much to their consternation, that they needed to hire more civilians and reorganize officer duties before considering hiring more cops. If the same analysis were performed for Houston, I believe they'd find that's the case there, too. 

In Austin, where Houston chief Art Acevedo was posted before becoming chief in H-Town, civilian duties were widely neglected in favor of hiring more officers. Crises at the crime lab and failures at sex-assault victim services cropped up nearly as soon as he left, and virtually every other civilian function in the agency (except the Public Information Office - he does value PR) was starved and short-shrifted during his tenure.

That said, even with this debunking, the strategy of lying about crime could still work. Survey after survey shows the public thinks crime is rising, even when it's precipitously falling. That's slowly starting to change, but it's something a demagogue can manipulate. Candidate King touched on what I think is the reason public opinion doesn't track with reality: “When you actually see a crime being committed on your computer screen, especially if it involves violence, it obviously (has) a much greater impact than reading dry crime statistics.”

Bingo! It may be hard for anyone under 50 or so to imagine, but thirty years ago, local news was local and crimes reported in the newspaper or on nightly TV news happened in the town a journalist covered. Today, crimes committed anywhere and everywhere on the globe show up in our news feeds in seemingly endless waves, giving an impression of lawlessness and danger that's just not borne out by data.

That's what Buzbee and King are counting on: that the public's ignorance and gullibility will trump reality. And it could work. As H.L. Mencken long ago advised, no one ever went broke underestimating the intelligence of the American public. But when the media do their job well, as for once happened here, it makes capitalizing on public ignorance a lot more difficult.

Needless shooting shows why cops shouldn't be first response to mental health calls

In the wake of the City of Austin funding an alternative approach to mental-health first response featuring mental-health clinicians taking the lead instead of cops, video has emerged from Corpus Christi of a police officer gunning down a mentally ill man wielding a metal pipe at point blank range. The victim didn't die, thankfully, but this was unnecessary:

Austin funds alternatives to police for mental-health first response

The Austin City Council yesterday approved $1.75 million in its next budget to create a new system for responding to 911 calls involving potential suicides and other mental-health-related scenarios, thanks to a measure promoted by Just Liberty and the Austin Justice Coalition.

The money would pay for 6.5 new positions to put mental-health clinicians on the front lines of 911 calls related to mental health crises along with seven new Community Health Paramedics at EMS.

As a result, according to a "policy direction" memo accompanying the funding, "The Council expects more calls to be appropriately directed to EMS and fewer to APD based on a better clinical triage in the 911 center." In some cases, that will mean mental health clinicians communicating with folks by video-call; in others, clinicians will will show up in person. And instead of uniformed police doing followup visits to the homes of the mentally ill to check on their medical progress (yes, that is what Austin has been doing,) trained Community Health Paramedics will do followup visits to help people address their needs.

In 2018, according to a report from the Meadows Foundation, Austin PD responded to 11,124 mental-health-related calls, most of which should now get clinicians and/or EMS personnel responding instead. This will reduce unnecessary incarceration, involuntary hospitalization and use-of-force incidents - a huge boon to the thousands of sick people involved. Giving a health care call a health response will also free up police officer time.

Austin's reform has been a long time coming. An audit released last year found Austin police shoot people on mental health calls more than in other large US cities. (Indeed, Austin's most recent high profile police shooting involved someone in mental health crisis.) And letters written by the now-disbanded Civilian Oversight Panel revealed its frustration at harmful police policies with respect to mental-health calls.

After two, full years of discussion and debate, advocates came to the city council this budget cycle with a well-developed proposal, passionate testimony from people harmed by the city's 911 system, and support from a wide range of groups. That convinced the Mayor to promise earlier this summer that needed funding would be included in the budget. Yesterday, the Council voted to include all the requested funds.

Protocols have yet to be developed, much less implemented, so it's too early to say for sure, but advocates and the City Council believe this measure should result in police responding to thousands fewer calls. When Dallas initiated reforms to its system for responding to mental health calls, the city saw, in first seven months, teams "addressed 709 mental health calls with only 21 cases (3%) ending in an arrest." If Austin can achieve such rates in a citywide program, that would amount to a sea change.

The city council included a list of performance measures and reporting requirements along with the funding, so we should have data coming out beginning next year to tell us whether we are meeting a health care emergency with a health care response.

Harris DA sanctioned for Brady/Michael-Morton Act violations

In Harris County, reported the Houston Chronicle's Keri Blakinger, Judge Andrew Wright issued a monetary sanction of $500 on the Harris County DA's office for failing to hand over evidence to the defense under Brady v. Maryland/the Michael Morton Act.

The issue arose because the DA's office did not hand over evidence of sustained misconduct against an arresting officer in a DWI case until the eve of trial, many months after it was in their possession and the judge ordered them to turn it over. Reported Blakinger:

“The Court finds that the State has engaged in bad faith litigation tactics,” Wright wrote in an one-page order signed Aug. 23. “The Court further finds that this is a regular and pervasive course of conduct and that sanctions are necessary to deter future bad faith conduct.”

The DA's office claims the judge has no such authority, but Judge Mike Schneider was quoted in the story saying they have ample authority to apply sanction; he only questioned whether the one-page order was broad enough.

The District Attorney's office, however, claimed the only thing the judge could do was keep giving prosecutors ever-more time to comply: “The remedy for late disclosures is simple — more time,” DA spokesman Dane Schiller told the Chronicle.

The DA says they shouldn't have to turn over such information unless there's a protective order barring public disclosure of officer misconduct. But the officer was from the LaPorte PD, which isn't subject to the confidentiality provisions around personnel files in the state civil service code. That means the records under discussion are public under the Texas Public Information Act. 

Announcing you won't release public records unless a court makes them secret seems a tad disingenuous to this writer. Attorney Jordan Lewis bore down on that point, again, from Blakinger:

“They’re only asking for protective orders when they’re handing over police disciplinary files - so they’re asking for special treatment for police officers,” he said. “This is the same office that daily stands in front of a courtroom and repeats all of the bad unproven things that cops say about ordinary citizens.” 

In addition to the $500 sanction, Wright tossed all testimony from the former officer and banned any reference to him. 

Afterward, prosecutors moved to dismiss the case.

I have no idea who's right about the legality of monetary sanctions in such a situation, but this behavior has gone on for a long time and other sanctions haven't seemed to change it. By contrast, clearly the $500 fine got the DA's office's attention! 

TDCJ 'behaved dishonorably' in prison-heat litigation, says federal judge

A federal judge declared that Texas Department of Criminal Justice officials had "behaved dishonorably" by allegedly providing the court false information about broken air conditioners and heat levels inside Texas prisons, the Associated Press reported over the weekend. In this exchange, Judge Keith Ellison appeared to contemplate giving TDCJ officials a taste of their own medicine:

"Shouldn't we have as a sanction, prison officials in the cells dealing with the same temperatures as the prisoners?" Ellison asked Leah O'Leary, a lawyer with the Texas Attorney General's Office, which represented the state's prison system. 

O'Leary disagreed with Ellison's idea and said the state was working to fix the problems.
"You have our attention," said O'Leary, who spoke at the hearing by phone. 

"I'm afraid I don't," Ellison replied. 

Ellison delayed making a ruling on possible sanctions until he heard from officials, including prison wardens, at a hearing on Tuesday.

Further, "Ellison said while the settlement only covers prisoners from the Pack Unit, he believes the Texas prison system should air condition all of its units."

Grits has maintained for years that this is an issue only the federal courts can address: Without a sea change in priorities at the Texas Legislature, I can't see a path toward cooling Texas prison units through the political arena. A federal court would have to make them do it. 

If and when that ever happens, it will put significant economic pressure on state government to further reduce incarceration levels.

By the same token, Judge Ellison sounds like he's losing patience with TDCJ, and every summer, the situation becomes more dire. When a federal judge openly declares public officials have "behaved dishonorably," it's hard to imagine his next ruling is going to put smiles on their faces.

MORE: See Texas Tribune coverage.

UPDATE: The agency has now admitted it violated the settlement agreement. Also, "the prison agency has identified 13,000 inmates in the prison system that are heat vulnerable and it has already put 8,000 of them in air-conditioned beds. The remaining 5,000 will be placed in air-conditioned beds in 12 to 24 months."

Decrying one-sided Statesman stenography on criminal justice (again)

Regular readers know Grits has complained for several years about the unremittingly poor quality of journalism on #cjreform issues in Austin, particularly from the Austin Statesman. A great example of their one-sided coverage - basically functioning as stenographer/mouthpiece for local law enforcement interests and excluding other voices - may be found in Mark Wilson's coverage of a proposal for Austin PD to pay for new equipment to test THC levels in marijuana.

This is necessary, of course, because the Legislature legalized "hemp," which is from the same plant as marijuana, and the distinguishing feature under the law is THC levels. Around the state, prosecutors have begun dismissing cases because they can't prove that element of the crime. But Austin PD wants those cases prosecuted, despite the lack of any real public-safety motivation for doing so.

The Statesman coverage quotes only law enforcement sources and gives no air time to the actual debate that took place in the hearing on the topic.

By contrast, check out a report from the Austin Chronicle by Kevin Curtin. From that coverage you actually get a sense of what went on in the meeting. Critics of the police position were quoted, as were questions from the dais by council members that law enforcement had trouble answering. He also included an utterly ridiculous declaration from Assistant police chief Troy Gay that failure to arrest pot smokers would encourage murders, home invasions and armed robberies.

The public deserves to know he said that, so we can appropriately mock it. It's asinine, ass-i-ten, ass-eleven ...

How can the citizenry be informed enough to engage in effective oversight of elected officials if public debates are misrepresented in such a one-side way? When the paper of record only quotes cops and prosecutors, that's an awfully biased lens through which one's readers must somehow interpret the world. And really, in the end, they can't. It's a big reason why #cjreform is so difficult: Reform voices can barely get in the public conversation.

I've been critical of both the Statesman and Chronicle's coverage in recent years. Since Jordan Smith left the Chronicle, most local coverage of criminal-justice topics has amounted to stenography for the cops, not journalism. So Curtin's piece was a welcome antidote. He didn't take the side of reformers, but neither did he go out of his way to exclude their voices from his coverage. That's really all I'm looking for.

Ending red-light cameras freed up police time in Austin

When the Texas Legislature eliminated tickets based on red-light cameras earlier this year, they freed up a great deal of time among officers at Austin PD who evaluated the photos. Here's how the process worked before Austin shut its cameras down in June in response to the new legislation:

Once cameras are installed, videos of potential violations are submitted to the Police Department for review. The Police Department determines if a violation has occurred and, if so, a notice is sent to the registered owner of the vehicle and the case is filed in Municipal Court. Municipal Court is responsible for the due process and administration of the cases filed.

In 2018, according to City of Austin performance measures, APD reviewed 36,116 images taken by red-light cameras, but only filed cases 35.56 percent of the time, rejecting nearly 2/3 of the cases.

In 2017, only 12.8 percent of images reviewed by APD resulted in cases being filed.

While considering the department's latest request for more officers, City Council should ask Chief Brian Manley how much staff time (civilian and sworn) was spent vetting photos to separate the crap from potentially real violations. Police time spent evaluating tens of thousands of images was a hidden cost, and now those officers can focus on other duties.

Along with reductions in Class-C-misdemeanor and pot arrests, this deleted duty enhances the city's ability to reorganize existing work to meet higher priority public-safety goals. That's a smarter approach than adding new positions and should be part of the staffing debate.