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.
Transcript: Reasonably Suspicious podcast, September 2019 episode, co-hosted by Scott Henson and Amanda Marzullo, with special guest civil-rights attorney Scott Medlock.
Mandy Marzullo: Hi. This is Amanda Marzullo, and welcome to the September 2019 of Reasonably Suspicious. Scott, a study released earlier this year found that junk food sales increased in states that legalized recreational marijuana. Ice cream sales went up 3%, cookie sales increased by 4%, and chip sales increased by more than 5%. So are you surprised?
Scott Henson: The only thing I'm surprised at is that Texas companies like 7-Eleven and Bucee's or Blue Bell and Frito-Lay haven't already become huge contributors to pot legalization campaigns. Those folks are leaving serious money on the table by having pot illegal.
Mandy Marzullo: Marijuana legalization raises all boats!
Scott Henson: It really does and especially the junk food industry, apparently. Hello boys and girls, and welcome to the September 2019 episode of Just Liberty's Reasonably Suspicious podcast covering Texas criminal justice policy and politics. I'm here today with our good friend Many Marzullo, who's executive director of the Texas Defender Service. How are you doing today, Mandy?
Mandy Marzullo: I'm great. How are you, Scott?
Scott Henson: I'm better now that we're getting to this. We're a little late this month, but what do you do?
Mandy Marzullo: It happens.
Scott Henson: We have a fine show coming up for you folks. Today, federal judges weigh in on bail reform, a conservative think tank confronts police unions, and a new civil rights lawsuit aims to make the Texas prison system treat prisoners with hepatitis C. Mandy, what are you looking forward to talking about today on the podcast?
Mandy Marzullo: Police unions.
Scott Henson: Ooh, that's a good one, yes. I'm looking forward to that one, too. Well, let's get right into it. First up, Federal District Judge Lee Rosenthal issued a 53-page approval of the settlement agreement in the Harris County bail litigation, rebuffing objections from Harris County District Attorney Kim Ogg in the bail bond industry. The DA, in an amicus brief, essentially adopted the Willie Horton argument, identifying several cases in which defendants had committed serious crimes after being released on personal bond. But Judge Rosenthal refused to take the bait, responding that Ogg's position was "essentially an argument for incarcerating every arrestee and defendant until trial."
Scott Henson: Meanwhile in Galveston, Federal District Judge George Hanks issued an injunction requiring that county to provide an attorney for felony defendants at the initial hearing setting bail. This case was the first in Texas to extend some of the bail reform arguments applied to misdemeanors in Harris County to felony defendants. So Mandy, what stood out to you in these cases?
Mandy Marzullo: Well, I think there's a lot to unpack, but starting with Harris County, the case really goes to the heart of our bail system and basically saying that it's premised on a fallacy. The idea that someone who posts money is more likely to appear in court and less likely to pose a threat to the public isn't rational.
Scott Henson: Right. It just means they have more money.
Mandy Marzullo: Yeah. I mean, it does have a lot of implication for the rest of Texas. And Louisiana and Mississippi and the Fifth Circuit. I think that that is exciting. With the consent decree that sort of preliminarily approved, the solution that they worked out is pretty elegant. Now, it only applies to misdemeanors, but the idea that they have sorted out the nonviolent crimes that someone could be arrested for and saying everyone is released, and then we focus our resources and time on those cases where someone is arrested for a violent offense like family violence or assault makes a lot of sense.
Scott Henson: Right. And 85% of the cases are not those and will just be released on personal bond automatically without having a bail determination hearing. So I agree, that is a very elegant solution. It remains to be seen how broadly that can be applied in the areas like Galveston where we're talking about felony defendants, but it's a very interesting way to think about it. It avoids a lot of the debates about risk assessment and other things and just says okay, there's no real need to have even a bail determination for a lot of these. Let's just let folks go because we know it's not worthwhile to keep them there.
Scott Henson: I was really interested in how Judge Rosenthal addressed the DA's and the bail bondsmen's arguments, because she really goes out of her way to take every argument seriously and address it thoroughly, and I know she needs to for purposes of the consent decree, but she really almost gave them more deference than I really thought needed to be. At one point she says, "Well, I'm not saying that anyone's making any of these arguments in bad faith." Well, gosh, I thought some of them were pretty out there. I mean, the bail bond industry would just make a declarative sentence, list a bunch of cases that didn't seem to apply, and have no argument whatsoever. And she said that explicitly and just kept saying, "Okay, well, you didn't really make an argument here, so that's gone. You didn't make an argument here, so that's gone." And I thought that she very thoroughly addressed Kim Ogg's claim that the settlement agreement violated state law. She did recommend a couple of amendments to the settlement agreement to accommodate what Ogg's criticisms were. Honestly, I didn't think, after reading her explanation, that they were even necessary.
Mandy Marzullo: Yeah. There was one from the bail bond industry that she recommended changes to the consent decree over, and I'm not sure it's necessary. It dealt with an argument that the consent decree was inconsistent with the Texas Code of Criminal Procedure. What they're looking to are the repercussions when someone fails to appear. Now, the consent decree says that the judge will not issue a warrant for someone's arrest or forfeit their bail if the person didn't receive notice that they needed to appear, which makes a lot of sense, right?
Scott Henson: Right.
Mandy Marzullo: If you're going to restrict someone's liberty, make sure that they were aware that they needed to be somewhere.
Scott Henson: That's right. And the bail bondsmen were saying, "Nope. Even if they didn't receive notice, you have to go ahead and forfeit the bond and issue a warrant."
Mandy Marzullo: The justification that they're looking to is the bond forfeiture provisions in chapter 22 of the Code of Criminal Procedure, which deals with when the money that someone puts up is considered forfeit, not whether someone's going to be arrested.
Scott Henson: Right.
Mandy Marzullo: And that doesn't make sense. Essentially, it makes more sense to consider money that has been posted to be presumptively forfeited if you fail to appear and then allow someone to defend it, but it's more of a back-end process when you're talking about infringing on someone's liberty.
Scott Henson: Right. And especially when we're talking about Harris County, where, after Hurricane Harvey, the courthouse had been flooded and they dispersed the courts all over the city and there was a massive problem with people not getting notices in time for them to know to show up where they were supposed to show up. There were all sorts of missed court dates that really were not the defendant's fault, but were just because in the wake of Harvey, their systems were overwhelmed. Well, Houston now fills up like a bowl every time it rains. Just last week we had this massive flooding again there. And so that's not just a one-off. That's something that foreseeably could happen quite a bit in the future, and to say, "Nope, even if you didn't get notice, you get arrested if you don't come in, really doesn't make a lot of sense.
Mandy Marzullo: Yeah, it's just going to waste resources. It doesn't make sense. You can't consider someone's liberty to be the same thing as money that they deliberately post.
Scott Henson: Right. You know, the Galveston case is very exciting, too, because it's the first time that they've said, "Okay, this is also going to extend," the federal courts have said, "This is also going to extend to felony cases."
Mandy Marzullo: It is really exciting that it applies across the board. It is a preliminary injunction-
Scott Henson: Right.
Mandy Marzullo: ... so it's not as comprehensive as anybody would like. I was really surprised with the carve-outs. The big thing about the injunction, which you said in your layout, was that it requires that the county provide an attorney for bail determinations. But there are two big carve-outs. One is if it's a city magistration that's off the premises and the other is if someone is arrested pursuant to a warrant. Those two carve-outs don't seem to be nuanced enough. Sometimes a municipal judge is deputized by the district courts to conduct these magistration hearings. If that's the case, you don't want to exempt them from that.
Scott Henson: Right.
Mandy Marzullo: And then with a warrant, that means that someone has made a probable cause determination, but it doesn't mean that someone has looked at their finances and criminal history to determine what circumstances of bail is appropriate.
Scott Henson: That's right, and by contrast, in the Harris County case, they had said, "Okay, if you have previously forfeited your bond and have a warrant out, then they can be detained," but this is much broader than that.
Mandy Marzullo: Yeah. Exactly.
Scott Henson: And I will say it's a big deal for them to say, "Even in felony cases, we're going to have to provide counsel at that bail hearing," because most jurisdictions simply do not do that. I was listening to some judges in a candidate forum the other night here in Austin and Travis County is absolutely not doing that right now. And so if every county in the state, after the Fifth Circuit ends up ruling on this, ends up having that requirement, it's going to be a very big deal.
Mandy Marzullo: Yeah. I think there will be some growing pains with it no matter what, but having defense counsel in these hearings is going to make sure that the judges make informed decisions.
Mandy Marzullo: In related news, Houston police chief Art Acevado blamed local judges implementing bail reform for a police officer being shot. "We need the courts to do their job and to stop pussyfooting with violent criminals, period," he told local TV. "If you lived in a high crime area and you knew that these judges were going to 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?" The chief said to a reporter on the nightly news. However, it turned out that there's more to the story.
Mandy Marzullo: The victims who had been carjacked spent hours driving around for the stolen car and reported it to police when they found it. The driver identified the carjacker at the scene and later that day went down to the Houston PD Robbery Division and identified him again in a photo array. But police only charged the man with misdemeanor criminal trespass, not armed robbery, and didn't submit an affidavit to the DA documenting the new charges until seven days after the crime was committed. Scott, was bail reform at fault here?
Scott Henson: Hell no. Oh my gosh. This claim is asinine, ass a 10, ass 11, however many asses you need. It's that many. Oh my gosh. This is Art Acevado blaming local judges and blaming bail reform for a problem that his officers are 100% responsible for. The idea that a victim had identified the robber not once, but twice in the same day, after having driven around for five hours looking for their own car, because HPD was probably not going to find it.
Mandy Marzullo: Yeah.
Scott Henson: So she basically did all the work for them and she stays for the show-up, she comes back down to the robbery division to do a photo lineup, and it's not anyone's fault but the cop that they didn't turn in the paperwork. She had signed the affidavit after doing the photo array and just submitting all of that to the DA is all that was needed to move it forward, but when the defendant showed up for the bail determination the following day, there was no other charge besides misdemeanor criminal trespass. Well, especially under the bail regime, that doesn't get you detained. And so there's no way anyone could have known that there was something more serious to look at it and it's just outright demagoguery to blame the judges for it. I found it very opportunistic and just kind of gross, really.
Mandy Marzullo: Yeah, and not solving the problem.
Scott Henson: Well, it's not even trying. He's trying to create problems for the judges and he's trying to create obfuscation over the effects of bail reform to smear bail reform and say, "Oh, this is getting cops shot." Actually, it's your cops getting their colleagues shot by not doing their job. And whatever excuse those officers have for not having turned in the paperwork, it's not good enough. I really found that disappointing and just outright demagoguery.
Mandy Marzullo: At a minimum, I hope he gets to a point where he can view this as an opportunity. Because if paperwork isn't being turned in on time, bail reform provides them with an opportunity to just prioritize cases like this.
Scott Henson: Right, the more serious cases.
Mandy Marzullo: Don't focus on the actual criminal trespasses. Focus on the carjacking.
Scott Henson: Well, in theory, I would hope it could cause that sort of re-prioritization of resources, but I found this to be just in outright bad faith. When someone's acting in bad faith, I don't know that they're looking for opportunities for improvement. I think they're looking for opportunities to deflect blame. And that's what was happening here, in my opinion.
Scott Henson: All right. The last of our top stories involves a new federal civil rights lawsuit against the Texas prison system, alleging that prisoners suffering from hepatitis C aren't receiving treatments that are considered the modern standard of care by free world doctors. New drugs to treat the disease are expensive, costing between $13,000 and $18,000 per prisoner. So with 18,000 Texas prisoners already diagnosed with hep C and most prisoners having never been tested, the cost for paying for treatment could run over half a billion dollars. At the same time, the US Supreme Court has ruled that when states incarcerate someone, they become responsible for providing healthcare services, and doctors have told the state legislature they aren't providing the established standard of care in these cases. Mandy and I recently caught up with attorney Scott Medlock, who filed the suit, for a phone conversation. Here's how he described the case.
Scott Medlock: Well, it kind of all started with Grits for Breakfast, which I was reading several years ago and I believe you posted the video of Owen Murray testifying before the Texas legislature that this new drug for hepatitis C was going to be the standard of care in a couple of years. And now, about five years later, the drug price has come down significantly. There's no doubt that it's the standard of care. If you watch late night TV, you'll see advertising that says you should get tested for hepatitis C, because the drug is so good that the drug company has kind of eliminated their own free world market. They need to find more patients. And it happens to be that the one place where there's a ton of patients who aren't getting drugs is prisons. So they've been doing these cases successfully all over the country and it was well past time that this issue comes to Texas.
Scott Henson: Wow. I have two questions from that. First, how much has the price come down? Because a few years ago, they were saying this was $1,000 a pill, $63,000 for a drug treatment.
Scott Medlock: Yeah. It's still expensive, it's just not ridiculously, exorbitantly expensive like it was when the drug was brand-new. I think that the cost now is somewhere between like $13,000 and $18,000 per course of treatment. So a huge difference than what it was before and a order of magnitude different than what it costs to have a liver treatment, which is the treatment these guys ultimately need if they are not treated for long enough and the disease progresses far enough.
Mandy Marzullo: Isn't, also, hep C often a precursor to cancer, which means that they may have, if it metastasizes we could be talking about huge, long courses of treatment?
Scott Medlock: Absolutely. Hepatitis C is one of the leading causes of liver cancer and liver cancer is one of the leading causes of death in TDCJ.
Scott Henson: Wow. You also said that other states have already engaged in this litigation. Tell me, what's been their experience?
Scott Medlock: The plaintiff's experience in these other cases has been that they win. The classes get certified and the cases either settle or the plaintiffs win, because it's pretty egregious. This is the classic, the prison knows there's a correct course of treatment for people with hepatitis C and they're doing the incorrect course of treatment. The inmates who we represent have been going through the grievance process for years, getting their grievances completed, and they just get a standard response back that no, you're not getting the treatment. So the TDCJ really needs to be taken into court for this one.
Mandy Marzullo: Has TDCJ been sued previously for deviating from the standard care?
Scott Medlock: Only by pro se inmates who just don't have the knowledge and the resources that they need to do this particular type of case. This case requires expert testimony from doctors as to what the standard of care is and then once an inmate hits that barrier, they're going to lose 100 times out of 100, because that's an element of the claim and if you don't have your expert dialed up, you can't get over that.
Mandy Marzullo: This is potentially a watershed case then, right? Because hep C, I'm sure, isn't the only disease that TDCJ is deviating from the medical community in how it's handling-
Scott Medlock: Well, it's definitely the one where it's the most clear. There's differences of medical opinion on a lot of things, like when do you start cancer treatment? When is chemo appropriate versus other treatments? Stuff like that. You'll find different doctors who will say different things. So it's not clear that they're intentionally treating someone differently. But here, the medical community is pretty much unanimous that this is the standard of care. I mean, we've seen Dr. Murray say it's the standard of care. In the meeting minutes for the Correctional Managed Health Care Committee, they routinely quote doctors on the committee saying yes, this is the standard of care. So it's rare that there is a question this well-settled in the medicine that they're not following.
Scott Henson: Right. At the same time, in those hearings, because like you say, I've been covering them on the blog for years and years, I have heard Owen Murray and many others say many times that, "Oh, we're on the brink of not providing constitutional levels of care." Well, then the following budget session, they will reduce spending on healthcare, and that's happened at least twice since they've been saying that they're on the verge of not providing constitutional care. Then they provide less care, but no one ever says, "Oh, well, now it's not constitutional." So you're right. This is one where it's absolutely clear. At the same time, it really does seem like there probably are some other areas, too, where at this point, nobody is receiving very good care.
Scott Medlock: Oh, yeah. For sure. I don't anybody would trade their free world healthcare for what they get in TDCJ. If I had a dollar for every time I received a letter from an inmate telling me about the atrocious healthcare that he or she is getting, I would be able to retire. I wouldn't have to do this work any more, because there are much bigger problems with the healthcare system in TDCJ than just hepatitis C, but this is just the issue where the medicine is so settled that there's really no acceptable excuse for denying the patients these drugs.
Mandy Marzullo: And if anything, it may give the practitioners in TDCJ who know that they are deviating from standard more clout when they're meeting with folks at the capital to say, "We have to do this."
Scott Medlock: Right. And one almost wonders if Dr. Murray is secretly excited to be sued in this case, because it gives him a really big stick to go to the legislature, to say, "Look, we're going to be in a world of hurt and not only paying for these medicines. We're going to be paying these attorney's fees, too. Let's do the right thing here, even if it's not entirely for the right reason any more."
Scott Henson: Well, whether or not he's excited, I'm certainly very excited. And congratulations on getting your complaint out. Tell us, what does victory look like?
Scott Medlock: If they win.
Scott Henson: What's going to happen? What's going to change? What would you see as the right outcome, and what are the implications for TDCJ if you do win?
Scott Medlock: The right outcome is when you're diagnosed with hepatitis C, you get the treatment. There's some medical, very small exceptions for when you wouldn't get started right away, like some small percentage of people, the body clears the infection naturally, so you generally wait about 6 months after you're first diagnosed to determine if you've got a chronic infection or if you've got the super healthy body that can get rid of it naturally. But then after you've been diagnosed for six months, everybody should be getting the treatment. No matter how long you've had it, no matter how far it's progressed, no matter how much or how little damage it's done to your liver. Everybody needs to get the treatment and that's what we are looking for in the case.
Scott Henson: Excellent. Well, thank you, sir, for doing this and I would be remiss if I didn't say congratulations on your prison heat litigation as well.
Scott Medlock: Well, thank you. We are very, very proud of that. We're very proud to represent the gentlemen at the Pack Unit. One of the highlights of my career was the day that I drove up to the Pack Unit to talk to some of my guys and there was a giant crane there, lifting an air conditioning unit over the fence and putting it down next to the prison. That's one to write home about and just talking to all those inmates since the AC has gone in, the huge difference that you can just physically see that it's made in their lives. You talk to them in the air-conditioned visiting area now and it doesn't look like they're just on the verge of death because they've come out of the hundred degree temperatures in their living areas right before they talk to you. So it's something that we at the firm are very, very proud of.
Scott Henson: All right. Well, thank y'all for your great work and thanks for chatting with us.
Scott Medlock: Well, thank y'all. I'm happy to do it any time.
Scott Henson: Mandy, given that treating Texas prisoners with hep C could cost half a billion dollars, what are the implications if this lawsuit wins?
Mandy Marzullo: Well, I think the financial implications are not as bad as someone might think. The half a billion figure is probably a one-time expense. That doesn't mean that the treatment costs are going to go to zero after that, but once you treat everyone in custody with hep C, you're not going to have to treat the same number all over again.
Scott Henson: That's true.
Mandy Marzullo: And you will realize a savings in the course of a prisoner's incarceration. So if someone's in TDCJ custody for a long period of time and they have hep C, treating that person could cost $18,000, but it also means that you're less likely to have to spend tens of thousands of dollars treating that person for a transplant or liver cancer later on down the road.
Scott Henson: Right. And I was very surprised to hear Scott say that liver failure is one of the leading causes of death in TDCJ. I certainly wasn't aware of that.
Mandy Marzullo: I wasn't, either. The other thing that I think about, and I hope that this becomes part of the assessment with other diseases, is that prison is, in some ways, an ideal treatment environment. You don't have to worry about follow-up there.
Scott Henson: Right.
Mandy Marzullo: You know where the patient is. You can make sure that they take all the necessary doses to clear the disease.
Scott Henson: Right. And in this case, now that, as Scott mentioned, in the free world, the drugs have been so successful that they've driven the rates of hepatitis C way, way down, at this point, prison, with more than 30% of inmates having hep C, is probably driving hepatitis C everywhere. People go into prison. Every year, TDCJ release half the prisoners in their custody, more or less, and those people come out and they're probably the main source of hepatitis C expanding at this point.
Mandy Marzullo: I think you're right. When I was in college I worked on some grants to alleviate MDR TB, which is basically, it stands for multidrug-resistant tuberculosis, and what they found was exactly that. That people were cycling in and out of prison, where this disease was being spread, and then when they were released into their communities, they then transmitted it elsewhere. But we also were prioritizing medical care in prison because that was the environment where you could treat it.
Scott Henson: Right. So this an example of prisons causing a public health crisis in the free world, being the source of the problem. It's not really even the case that, oh, it's just worse in prison. No, it starts in prison now.
Mandy Marzullo: In prison, exactly.
Scott Henson: That's where it's coming from. Prison's making everyone less healthy as a result. And putting people at risk.
Mandy Marzullo: Now it's time to play Fill in the Blank, in which Scott and I suggest different ways to finish the same sentence. First up, the Texas Public Policy Foundation recently issued a new policy brief written by a former sheriff criticizing police unions for focusing on ideological and partisan issues. They called out Texas's largest police union, the Combined Law Enforcement Associations of Texas, known as CLEAT, for opposing restrictions on misdemeanor arrests and police officer fitness requirements. They suggested educating the public and policymakers that police unions' political positions are often about maintaining their own power rather than "legitimate public safety and liberty concerns." So Scott, fill in the blank. Police associations are different from other unions because?
Scott Henson: They're the ones who get called to bust the other unions, for starters. We have this example in Arlington right now where the General Motors employees there have gone out on strike. Well, it was in the news just within the last week. Who's called out to sweep the strikers aside and let the scabs come through to populate the plant? The Arlington police department. That's the deal. And when we had Ron DeLord, the founder of CLEAT, on for an interview about a year and a half ago, he described the Boston police strike in 1919, we just had the 100th anniversary of that on September 9th. And just to refresh listeners' memory, in Boston, the entire police department went out on strike. They were immediately all fired and soldiers were brought in to maintain public order during that period. And Ron described how, at that time, the police union reached out to the AFL, the American Federation of Labor. At the time CIO did not exist. They reached out and asked the AFL to go out on general strike with them in solidarity and AFL went back to their people and they all said, "Hells no. These are the same people who were busting skulls when we went out on strike. Why are we going to help them?" And Ron attributed the fact that, to this day, most police unions are not part of the AFL-CIO, not part of the formal labor movement. That's why in Texas, they're all police associations instead of unions.
Scott Henson: Well, Arlington shows that really hasn't changed that much. And CLEAT and other law enforcement organizations were very happy to be carved out when they're stripping away union member's rights to have dues check-offs at the legislature and things like that. And so it really is a very different animal.
Mandy Marzullo: Yeah. It's funny. I was going to say that they aren't different and that I was sort of heartened by TPPF's criticism that, really, at the end of the day, law enforcement unions, their expertise extends only to the terms of employment.
Scott Henson: Right.
Mandy Marzullo: The conditions of employment. But they aren't policy experts. They don't know what they're talking about when they're taking a position on custodial interrogations or even some punishment issues. In those instances, I think it makes a lot more sense just to let the heads of police agencies talk about what is and isn't feasible from their management perspective.
Scott Henson: That's certainly right, and I think what this public policy report is reacting to explicitly was the police union's killing a bunch of reform bills this session. The Sandra Bland Act was one. Again, the police fitness requirements was kind of a funny one. But they stuck their nose into all sorts of stuff, even your death penalty issues, for reasons that are just inexplicable. What expertise do they have in that area? None at all. But they're spending most of their time on these public policy questions. I mean, to the extent that you're talking about their pension or something, absolutely. They have a place at the table. That's compensation and benefits and workplace conditions, all that stuff. But to the extent that you're just saying, "No, we should punish harsher and have more arrest authority and be able to arrest for more and more things and you can't restrict it in any way," that's just not their place.
Mandy Marzullo: No, no. And I think you saw some pushback with it, with the death penalty bills that they took positions on. They really went outside their expertise. When I spoke to them, they would just say, "Well, what if they shoot a cop?" It doesn't matter if the person was in a psychotic episode and it's not deterrable anyway. They just felt like any time a cop was shot, someone else should be killed. And that kind of reaction demonstrated that they didn't what they were talking about, and I think they lost credibility.
Scott Henson: Right. Well, they absolutely lost credibility because by the end of the session, they were being openly denounced by the speaker pro tem on the House floor. And he's basically saying they don't have credibility on these policy questions. He was very explicit about that and there was a lot of bipartisan agreement with that sentiment by the end of session because they had really overplayed their hand to such a great extent.
Scott Henson: Next one. In the Houston mayor's race, Mayor Sylvester Turner's most prominent opponent, millionaire attorney Tony Buzbee has insisted in his stump speech that Houston is one of the most dangerous cities in America and that "all types of crime are on the rise." In response, he says Houston should boost its number of police officers by nearly 40%. But Houston Chronicle reporter St. John Barned-Smith and Jasper Scherer debunked Buzbee's claims about crime using official data and commentary from national experts. They found that crime rates in Houston are near all-time lows and among large US cities, Houston ranks in the middle of the pack on crime, prompting Buzbee's campaign to declare the newspaper its "enemy." So Mandy, fill in the blank. Tony Buzbee's crime claims are?
Mandy Marzullo: Nonsense. One of the best criticisms of American politics that I've ever heard was that too often as voters we look to outcomes and not how politicians make decisions with whatever limited information they have at hand, and in this case, we have a political candidate refusing to talk about data and demonstrating that he can't work with stakeholders. If someone disagrees with him, he's not going to try and work with them.
Scott Henson: They're the enemy. That's right.
Mandy Marzullo: So, I mean, he sort of disqualifies himself from the race as he's talking, and I really hope we get to a point where voters are able to think of this that way.
Scott Henson: Right. Well, I thought that his crime claims were demagogic. Again, I think that's-
Mandy Marzullo: Again?
Scott Henson: ... that's our theme here for Houston politicians, I guess. But the reality is that when you look at crime data, frankly, it's very complex. There are so many different types of crime. Nearly all nonviolent crimes have plummeted in Houston. Among violent crimes, there are a couple of categories that've increased. Most categories have decreased and there's even some data issues around some of the increases. For example, rape cases everywhere have gone up a lot since the uniform crime report changed its definitions a few years ago, and then reporting increased as a result of Me Too. And so we don't completely know whether that means there's more of those crimes or whether the change in definition and increased reporting just means that we know more about it. How you interpret it really requires some nuance and there's some open questions that we don't have the answers to and that an honest person couldn't say we have answers to. Exploiting that uncertainty to just say, "No, it's terrible," is intellectually dishonest. Especially when you ignore all of the areas where crime's going down to say, "No, crime in all categories is on the rise." Well, that's, in fact, just a lie.
Mandy Marzullo: No.
Scott Henson: Just isn't even remotely true, and it means that you can't have an honest conversation about the areas where it is going up, where you might want to delve a little deeper and say, "Okay, we need to look into this category and see what's really going on here." So it's counterproductive, it's demagogic, it's incredibly disappointing that that's where the terms of debate are.
Scott Henson: Now, that said, I do want to give a shout-out to the two reporters because when politicians just make expressly false claims like that, for years and years, reporters didn't know what to do with that. And I feel like that in the wake of the Donald Trump era, the reporters have had to figure out for the first time, okay, how can I do this so that I'm not giving someone who's just lying a platform? And I think what made Buzbee the angriest in this story was the reporters just called it out. They would quote him saying, "All types of crime are on the rise," and then they would say, "Well, no. These ten categories are going down and these two have gone up and here's the experts and here's the data," and just expressly rebutted the falsehood. And that is journalists having a learning curve here in this new era, and I guess it's worth mentioning that Buzbee was one of Donald Trump's biggest Houston fundraisers. So maybe there's some stylistic connection there, but I thought they deserved a lot of credit for how they approached that.
Scott Henson: Now it's time for our rapid-fire segment we call The Last Hurrah. Mandy, are you ready?
Mandy Marzullo: I was born ready. Let's do this. When Dallas reported a bump in crime rates earlier this year, Governor Greg Abbott deployed DPS troopers to help patrol the city, but after allegations of over-policing in minority communities and a shooting by DPS troopers at a traffic stop, the agency is withdrawing its officers after just three months. Scott, what lesson should we take from this experience deploying the highway patrol in a major Texas city?
Scott Henson: I feel like we've learned that urban law enforcement is a different animal from what the highway patrol does, that giving tickets on I-40 or whatever is just different from going into South Dallas and dealing with people at the level that urban cops have to do every day. They were unprepared. Colonel Steve McCraw from DPS basically said the only people who were criticizing the DPS were those who'd been arrested by them. Well, in fact, it was local city council people and much broader than that. So hopefully, despite those public comments, they've learned a lesson and won't stick their nose in where it really doesn't belong in the future. Dallas, we now know from their staffing study, does have enough cops to cover what they need to do and it's not really the place of the highway patrol to jump in and do that.
Scott Henson: Next up, police officers in Dallas have been indicted for murder four times in the last three years with Officer Amber Guyger's murder trial beginning this week for the shooting death of Botham Jean, a worship leader with deep community ties who was shot in his own home. Guyger claims she thought she was entering her own apartment, which was on a different floor. Mandy, does this represent a turning point regarding deaths in police custody?
Mandy Marzullo: Not really. I am happy that they're prosecuting somebody for shooting a citizen who was sitting in his living room, just watching TV. But indictments for police shootings, even in Dallas, are still pretty low. We're talking about less than 2% of the time. And that is appalling by any metric. So I think we need to a significant increase before we say that we're at a turning point. Or approaching a prosecution level that would lead to the [inaudible 00:39:43].
Mandy Marzullo: Last one. After the governor in Oklahoma appointed a religious prison ministries advocate to the parole board, parole rates have increased 41% and commutations, which had dwindled to almost zero, increased 1300%. What lesson should Texas take from this example?
Scott Henson: Two things, really. First that it is okay to have parole rates increase and there's not necessarily going to be some huge political backlash. Oklahoma's a very conservative place. If they can accomplish that, we can, too. And second that who is on the parole board really matters.
Mandy Marzullo: Yes.
Scott Henson: In Texas it's almost all ex-cops and prosecutors and people who are very much on one side of the equation and appointing someone who does have prisoner's interests more in mind, someone from that religious prison ministries background has made a big impact and I'd love to see somebody like Prison Fellowship or some of the religious ministries here in Texas recommending people for the parole board to the governor. I think it would really help for us to get more diversity on that body.
Mandy Marzullo: Yeah. Diverse groups make better decisions.
Scott Henson: All right. We're out of time, but we'll try and do better the next time. Until then, this is Scott Henson with Just Liberty.
Mandy Marzullo: And I'm Amanda Marzullo with the Texas Defender Service. Goodbye, and thanks for listening.
Scott Henson: You can subscribe to the Reasonably Suspicious podcast on iTunes, Google Play, or SoundCloud or listen to it on my blog, Grits for Breakfast. We'll be back next month with more and hopefully better news, and until then, keep fighting for criminal justice reform. It's the only way it's going to happen.
Transcript by Rev.com.
Transcript: Reasonably Suspicious podcast, September 2019 episode, co-hosted by Scott Henson and Amanda Marzullo, with special guest civil-rights attorney Scott Medlock.
Mandy Marzullo: Hi. This is Amanda Marzullo, and welcome to the September 2019 of Reasonably Suspicious. Scott, a study released earlier this year found that junk food sales increased in states that legalized recreational marijuana. Ice cream sales went up 3%, cookie sales increased by 4%, and chip sales increased by more than 5%. So are you surprised?
Scott Henson: The only thing I'm surprised at is that Texas companies like 7-Eleven and Bucee's or Blue Bell and Frito-Lay haven't already become huge contributors to pot legalization campaigns. Those folks are leaving serious money on the table by having pot illegal.
Mandy Marzullo: Marijuana legalization raises all boats!
Scott Henson: It really does and especially the junk food industry, apparently. Hello boys and girls, and welcome to the September 2019 episode of Just Liberty's Reasonably Suspicious podcast covering Texas criminal justice policy and politics. I'm here today with our good friend Many Marzullo, who's executive director of the Texas Defender Service. How are you doing today, Mandy?
Mandy Marzullo: I'm great. How are you, Scott?
Scott Henson: I'm better now that we're getting to this. We're a little late this month, but what do you do?
Mandy Marzullo: It happens.
Scott Henson: We have a fine show coming up for you folks. Today, federal judges weigh in on bail reform, a conservative think tank confronts police unions, and a new civil rights lawsuit aims to make the Texas prison system treat prisoners with hepatitis C. Mandy, what are you looking forward to talking about today on the podcast?
Mandy Marzullo: Police unions.
Scott Henson: Ooh, that's a good one, yes. I'm looking forward to that one, too. Well, let's get right into it. First up, Federal District Judge Lee Rosenthal issued a 53-page approval of the settlement agreement in the Harris County bail litigation, rebuffing objections from Harris County District Attorney Kim Ogg in the bail bond industry. The DA, in an amicus brief, essentially adopted the Willie Horton argument, identifying several cases in which defendants had committed serious crimes after being released on personal bond. But Judge Rosenthal refused to take the bait, responding that Ogg's position was "essentially an argument for incarcerating every arrestee and defendant until trial."
Scott Henson: Meanwhile in Galveston, Federal District Judge George Hanks issued an injunction requiring that county to provide an attorney for felony defendants at the initial hearing setting bail. This case was the first in Texas to extend some of the bail reform arguments applied to misdemeanors in Harris County to felony defendants. So Mandy, what stood out to you in these cases?
Mandy Marzullo: Well, I think there's a lot to unpack, but starting with Harris County, the case really goes to the heart of our bail system and basically saying that it's premised on a fallacy. The idea that someone who posts money is more likely to appear in court and less likely to pose a threat to the public isn't rational.
Scott Henson: Right. It just means they have more money.
Mandy Marzullo: Yeah. I mean, it does have a lot of implication for the rest of Texas. And Louisiana and Mississippi and the Fifth Circuit. I think that that is exciting. With the consent decree that sort of preliminarily approved, the solution that they worked out is pretty elegant. Now, it only applies to misdemeanors, but the idea that they have sorted out the nonviolent crimes that someone could be arrested for and saying everyone is released, and then we focus our resources and time on those cases where someone is arrested for a violent offense like family violence or assault makes a lot of sense.
Scott Henson: Right. And 85% of the cases are not those and will just be released on personal bond automatically without having a bail determination hearing. So I agree, that is a very elegant solution. It remains to be seen how broadly that can be applied in the areas like Galveston where we're talking about felony defendants, but it's a very interesting way to think about it. It avoids a lot of the debates about risk assessment and other things and just says okay, there's no real need to have even a bail determination for a lot of these. Let's just let folks go because we know it's not worthwhile to keep them there.
Scott Henson: I was really interested in how Judge Rosenthal addressed the DA's and the bail bondsmen's arguments, because she really goes out of her way to take every argument seriously and address it thoroughly, and I know she needs to for purposes of the consent decree, but she really almost gave them more deference than I really thought needed to be. At one point she says, "Well, I'm not saying that anyone's making any of these arguments in bad faith." Well, gosh, I thought some of them were pretty out there. I mean, the bail bond industry would just make a declarative sentence, list a bunch of cases that didn't seem to apply, and have no argument whatsoever. And she said that explicitly and just kept saying, "Okay, well, you didn't really make an argument here, so that's gone. You didn't make an argument here, so that's gone." And I thought that she very thoroughly addressed Kim Ogg's claim that the settlement agreement violated state law. She did recommend a couple of amendments to the settlement agreement to accommodate what Ogg's criticisms were. Honestly, I didn't think, after reading her explanation, that they were even necessary.
Mandy Marzullo: Yeah. There was one from the bail bond industry that she recommended changes to the consent decree over, and I'm not sure it's necessary. It dealt with an argument that the consent decree was inconsistent with the Texas Code of Criminal Procedure. What they're looking to are the repercussions when someone fails to appear. Now, the consent decree says that the judge will not issue a warrant for someone's arrest or forfeit their bail if the person didn't receive notice that they needed to appear, which makes a lot of sense, right?
Scott Henson: Right.
Mandy Marzullo: If you're going to restrict someone's liberty, make sure that they were aware that they needed to be somewhere.
Scott Henson: That's right. And the bail bondsmen were saying, "Nope. Even if they didn't receive notice, you have to go ahead and forfeit the bond and issue a warrant."
Mandy Marzullo: The justification that they're looking to is the bond forfeiture provisions in chapter 22 of the Code of Criminal Procedure, which deals with when the money that someone puts up is considered forfeit, not whether someone's going to be arrested.
Scott Henson: Right.
Mandy Marzullo: And that doesn't make sense. Essentially, it makes more sense to consider money that has been posted to be presumptively forfeited if you fail to appear and then allow someone to defend it, but it's more of a back-end process when you're talking about infringing on someone's liberty.
Scott Henson: Right. And especially when we're talking about Harris County, where, after Hurricane Harvey, the courthouse had been flooded and they dispersed the courts all over the city and there was a massive problem with people not getting notices in time for them to know to show up where they were supposed to show up. There were all sorts of missed court dates that really were not the defendant's fault, but were just because in the wake of Harvey, their systems were overwhelmed. Well, Houston now fills up like a bowl every time it rains. Just last week we had this massive flooding again there. And so that's not just a one-off. That's something that foreseeably could happen quite a bit in the future, and to say, "Nope, even if you didn't get notice, you get arrested if you don't come in, really doesn't make a lot of sense.
Mandy Marzullo: Yeah, it's just going to waste resources. It doesn't make sense. You can't consider someone's liberty to be the same thing as money that they deliberately post.
Scott Henson: Right. You know, the Galveston case is very exciting, too, because it's the first time that they've said, "Okay, this is also going to extend," the federal courts have said, "This is also going to extend to felony cases."
Mandy Marzullo: It is really exciting that it applies across the board. It is a preliminary injunction-
Scott Henson: Right.
Mandy Marzullo: ... so it's not as comprehensive as anybody would like. I was really surprised with the carve-outs. The big thing about the injunction, which you said in your layout, was that it requires that the county provide an attorney for bail determinations. But there are two big carve-outs. One is if it's a city magistration that's off the premises and the other is if someone is arrested pursuant to a warrant. Those two carve-outs don't seem to be nuanced enough. Sometimes a municipal judge is deputized by the district courts to conduct these magistration hearings. If that's the case, you don't want to exempt them from that.
Scott Henson: Right.
Mandy Marzullo: And then with a warrant, that means that someone has made a probable cause determination, but it doesn't mean that someone has looked at their finances and criminal history to determine what circumstances of bail is appropriate.
Scott Henson: That's right, and by contrast, in the Harris County case, they had said, "Okay, if you have previously forfeited your bond and have a warrant out, then they can be detained," but this is much broader than that.
Mandy Marzullo: Yeah. Exactly.
Scott Henson: And I will say it's a big deal for them to say, "Even in felony cases, we're going to have to provide counsel at that bail hearing," because most jurisdictions simply do not do that. I was listening to some judges in a candidate forum the other night here in Austin and Travis County is absolutely not doing that right now. And so if every county in the state, after the Fifth Circuit ends up ruling on this, ends up having that requirement, it's going to be a very big deal.
Mandy Marzullo: Yeah. I think there will be some growing pains with it no matter what, but having defense counsel in these hearings is going to make sure that the judges make informed decisions.
Mandy Marzullo: In related news, Houston police chief Art Acevado blamed local judges implementing bail reform for a police officer being shot. "We need the courts to do their job and to stop pussyfooting with violent criminals, period," he told local TV. "If you lived in a high crime area and you knew that these judges were going to 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?" The chief said to a reporter on the nightly news. However, it turned out that there's more to the story.
Mandy Marzullo: The victims who had been carjacked spent hours driving around for the stolen car and reported it to police when they found it. The driver identified the carjacker at the scene and later that day went down to the Houston PD Robbery Division and identified him again in a photo array. But police only charged the man with misdemeanor criminal trespass, not armed robbery, and didn't submit an affidavit to the DA documenting the new charges until seven days after the crime was committed. Scott, was bail reform at fault here?
Scott Henson: Hell no. Oh my gosh. This claim is asinine, ass a 10, ass 11, however many asses you need. It's that many. Oh my gosh. This is Art Acevado blaming local judges and blaming bail reform for a problem that his officers are 100% responsible for. The idea that a victim had identified the robber not once, but twice in the same day, after having driven around for five hours looking for their own car, because HPD was probably not going to find it.
Mandy Marzullo: Yeah.
Scott Henson: So she basically did all the work for them and she stays for the show-up, she comes back down to the robbery division to do a photo lineup, and it's not anyone's fault but the cop that they didn't turn in the paperwork. She had signed the affidavit after doing the photo array and just submitting all of that to the DA is all that was needed to move it forward, but when the defendant showed up for the bail determination the following day, there was no other charge besides misdemeanor criminal trespass. Well, especially under the bail regime, that doesn't get you detained. And so there's no way anyone could have known that there was something more serious to look at it and it's just outright demagoguery to blame the judges for it. I found it very opportunistic and just kind of gross, really.
Mandy Marzullo: Yeah, and not solving the problem.
Scott Henson: Well, it's not even trying. He's trying to create problems for the judges and he's trying to create obfuscation over the effects of bail reform to smear bail reform and say, "Oh, this is getting cops shot." Actually, it's your cops getting their colleagues shot by not doing their job. And whatever excuse those officers have for not having turned in the paperwork, it's not good enough. I really found that disappointing and just outright demagoguery.
Mandy Marzullo: At a minimum, I hope he gets to a point where he can view this as an opportunity. Because if paperwork isn't being turned in on time, bail reform provides them with an opportunity to just prioritize cases like this.
Scott Henson: Right, the more serious cases.
Mandy Marzullo: Don't focus on the actual criminal trespasses. Focus on the carjacking.
Scott Henson: Well, in theory, I would hope it could cause that sort of re-prioritization of resources, but I found this to be just in outright bad faith. When someone's acting in bad faith, I don't know that they're looking for opportunities for improvement. I think they're looking for opportunities to deflect blame. And that's what was happening here, in my opinion.
Scott Henson: All right. The last of our top stories involves a new federal civil rights lawsuit against the Texas prison system, alleging that prisoners suffering from hepatitis C aren't receiving treatments that are considered the modern standard of care by free world doctors. New drugs to treat the disease are expensive, costing between $13,000 and $18,000 per prisoner. So with 18,000 Texas prisoners already diagnosed with hep C and most prisoners having never been tested, the cost for paying for treatment could run over half a billion dollars. At the same time, the US Supreme Court has ruled that when states incarcerate someone, they become responsible for providing healthcare services, and doctors have told the state legislature they aren't providing the established standard of care in these cases. Mandy and I recently caught up with attorney Scott Medlock, who filed the suit, for a phone conversation. Here's how he described the case.
Scott Medlock: Well, it kind of all started with Grits for Breakfast, which I was reading several years ago and I believe you posted the video of Owen Murray testifying before the Texas legislature that this new drug for hepatitis C was going to be the standard of care in a couple of years. And now, about five years later, the drug price has come down significantly. There's no doubt that it's the standard of care. If you watch late night TV, you'll see advertising that says you should get tested for hepatitis C, because the drug is so good that the drug company has kind of eliminated their own free world market. They need to find more patients. And it happens to be that the one place where there's a ton of patients who aren't getting drugs is prisons. So they've been doing these cases successfully all over the country and it was well past time that this issue comes to Texas.
Scott Henson: Wow. I have two questions from that. First, how much has the price come down? Because a few years ago, they were saying this was $1,000 a pill, $63,000 for a drug treatment.
Scott Medlock: Yeah. It's still expensive, it's just not ridiculously, exorbitantly expensive like it was when the drug was brand-new. I think that the cost now is somewhere between like $13,000 and $18,000 per course of treatment. So a huge difference than what it was before and a order of magnitude different than what it costs to have a liver treatment, which is the treatment these guys ultimately need if they are not treated for long enough and the disease progresses far enough.
Mandy Marzullo: Isn't, also, hep C often a precursor to cancer, which means that they may have, if it metastasizes we could be talking about huge, long courses of treatment?
Scott Medlock: Absolutely. Hepatitis C is one of the leading causes of liver cancer and liver cancer is one of the leading causes of death in TDCJ.
Scott Henson: Wow. You also said that other states have already engaged in this litigation. Tell me, what's been their experience?
Scott Medlock: The plaintiff's experience in these other cases has been that they win. The classes get certified and the cases either settle or the plaintiffs win, because it's pretty egregious. This is the classic, the prison knows there's a correct course of treatment for people with hepatitis C and they're doing the incorrect course of treatment. The inmates who we represent have been going through the grievance process for years, getting their grievances completed, and they just get a standard response back that no, you're not getting the treatment. So the TDCJ really needs to be taken into court for this one.
Mandy Marzullo: Has TDCJ been sued previously for deviating from the standard care?
Scott Medlock: Only by pro se inmates who just don't have the knowledge and the resources that they need to do this particular type of case. This case requires expert testimony from doctors as to what the standard of care is and then once an inmate hits that barrier, they're going to lose 100 times out of 100, because that's an element of the claim and if you don't have your expert dialed up, you can't get over that.
Mandy Marzullo: This is potentially a watershed case then, right? Because hep C, I'm sure, isn't the only disease that TDCJ is deviating from the medical community in how it's handling-
Scott Medlock: Well, it's definitely the one where it's the most clear. There's differences of medical opinion on a lot of things, like when do you start cancer treatment? When is chemo appropriate versus other treatments? Stuff like that. You'll find different doctors who will say different things. So it's not clear that they're intentionally treating someone differently. But here, the medical community is pretty much unanimous that this is the standard of care. I mean, we've seen Dr. Murray say it's the standard of care. In the meeting minutes for the Correctional Managed Health Care Committee, they routinely quote doctors on the committee saying yes, this is the standard of care. So it's rare that there is a question this well-settled in the medicine that they're not following.
Scott Henson: Right. At the same time, in those hearings, because like you say, I've been covering them on the blog for years and years, I have heard Owen Murray and many others say many times that, "Oh, we're on the brink of not providing constitutional levels of care." Well, then the following budget session, they will reduce spending on healthcare, and that's happened at least twice since they've been saying that they're on the verge of not providing constitutional care. Then they provide less care, but no one ever says, "Oh, well, now it's not constitutional." So you're right. This is one where it's absolutely clear. At the same time, it really does seem like there probably are some other areas, too, where at this point, nobody is receiving very good care.
Scott Medlock: Oh, yeah. For sure. I don't anybody would trade their free world healthcare for what they get in TDCJ. If I had a dollar for every time I received a letter from an inmate telling me about the atrocious healthcare that he or she is getting, I would be able to retire. I wouldn't have to do this work any more, because there are much bigger problems with the healthcare system in TDCJ than just hepatitis C, but this is just the issue where the medicine is so settled that there's really no acceptable excuse for denying the patients these drugs.
Mandy Marzullo: And if anything, it may give the practitioners in TDCJ who know that they are deviating from standard more clout when they're meeting with folks at the capital to say, "We have to do this."
Scott Medlock: Right. And one almost wonders if Dr. Murray is secretly excited to be sued in this case, because it gives him a really big stick to go to the legislature, to say, "Look, we're going to be in a world of hurt and not only paying for these medicines. We're going to be paying these attorney's fees, too. Let's do the right thing here, even if it's not entirely for the right reason any more."
Scott Henson: Well, whether or not he's excited, I'm certainly very excited. And congratulations on getting your complaint out. Tell us, what does victory look like?
Scott Medlock: If they win.
Scott Henson: What's going to happen? What's going to change? What would you see as the right outcome, and what are the implications for TDCJ if you do win?
Scott Medlock: The right outcome is when you're diagnosed with hepatitis C, you get the treatment. There's some medical, very small exceptions for when you wouldn't get started right away, like some small percentage of people, the body clears the infection naturally, so you generally wait about 6 months after you're first diagnosed to determine if you've got a chronic infection or if you've got the super healthy body that can get rid of it naturally. But then after you've been diagnosed for six months, everybody should be getting the treatment. No matter how long you've had it, no matter how far it's progressed, no matter how much or how little damage it's done to your liver. Everybody needs to get the treatment and that's what we are looking for in the case.
Scott Henson: Excellent. Well, thank you, sir, for doing this and I would be remiss if I didn't say congratulations on your prison heat litigation as well.
Scott Medlock: Well, thank you. We are very, very proud of that. We're very proud to represent the gentlemen at the Pack Unit. One of the highlights of my career was the day that I drove up to the Pack Unit to talk to some of my guys and there was a giant crane there, lifting an air conditioning unit over the fence and putting it down next to the prison. That's one to write home about and just talking to all those inmates since the AC has gone in, the huge difference that you can just physically see that it's made in their lives. You talk to them in the air-conditioned visiting area now and it doesn't look like they're just on the verge of death because they've come out of the hundred degree temperatures in their living areas right before they talk to you. So it's something that we at the firm are very, very proud of.
Scott Henson: All right. Well, thank y'all for your great work and thanks for chatting with us.
Scott Medlock: Well, thank y'all. I'm happy to do it any time.
Scott Henson: Mandy, given that treating Texas prisoners with hep C could cost half a billion dollars, what are the implications if this lawsuit wins?
Mandy Marzullo: Well, I think the financial implications are not as bad as someone might think. The half a billion figure is probably a one-time expense. That doesn't mean that the treatment costs are going to go to zero after that, but once you treat everyone in custody with hep C, you're not going to have to treat the same number all over again.
Scott Henson: That's true.
Mandy Marzullo: And you will realize a savings in the course of a prisoner's incarceration. So if someone's in TDCJ custody for a long period of time and they have hep C, treating that person could cost $18,000, but it also means that you're less likely to have to spend tens of thousands of dollars treating that person for a transplant or liver cancer later on down the road.
Scott Henson: Right. And I was very surprised to hear Scott say that liver failure is one of the leading causes of death in TDCJ. I certainly wasn't aware of that.
Mandy Marzullo: I wasn't, either. The other thing that I think about, and I hope that this becomes part of the assessment with other diseases, is that prison is, in some ways, an ideal treatment environment. You don't have to worry about follow-up there.
Scott Henson: Right.
Mandy Marzullo: You know where the patient is. You can make sure that they take all the necessary doses to clear the disease.
Scott Henson: Right. And in this case, now that, as Scott mentioned, in the free world, the drugs have been so successful that they've driven the rates of hepatitis C way, way down, at this point, prison, with more than 30% of inmates having hep C, is probably driving hepatitis C everywhere. People go into prison. Every year, TDCJ release half the prisoners in their custody, more or less, and those people come out and they're probably the main source of hepatitis C expanding at this point.
Mandy Marzullo: I think you're right. When I was in college I worked on some grants to alleviate MDR TB, which is basically, it stands for multidrug-resistant tuberculosis, and what they found was exactly that. That people were cycling in and out of prison, where this disease was being spread, and then when they were released into their communities, they then transmitted it elsewhere. But we also were prioritizing medical care in prison because that was the environment where you could treat it.
Scott Henson: Right. So this an example of prisons causing a public health crisis in the free world, being the source of the problem. It's not really even the case that, oh, it's just worse in prison. No, it starts in prison now.
Mandy Marzullo: In prison, exactly.
Scott Henson: That's where it's coming from. Prison's making everyone less healthy as a result. And putting people at risk.
Mandy Marzullo: Now it's time to play Fill in the Blank, in which Scott and I suggest different ways to finish the same sentence. First up, the Texas Public Policy Foundation recently issued a new policy brief written by a former sheriff criticizing police unions for focusing on ideological and partisan issues. They called out Texas's largest police union, the Combined Law Enforcement Associations of Texas, known as CLEAT, for opposing restrictions on misdemeanor arrests and police officer fitness requirements. They suggested educating the public and policymakers that police unions' political positions are often about maintaining their own power rather than "legitimate public safety and liberty concerns." So Scott, fill in the blank. Police associations are different from other unions because?
Scott Henson: They're the ones who get called to bust the other unions, for starters. We have this example in Arlington right now where the General Motors employees there have gone out on strike. Well, it was in the news just within the last week. Who's called out to sweep the strikers aside and let the scabs come through to populate the plant? The Arlington police department. That's the deal. And when we had Ron DeLord, the founder of CLEAT, on for an interview about a year and a half ago, he described the Boston police strike in 1919, we just had the 100th anniversary of that on September 9th. And just to refresh listeners' memory, in Boston, the entire police department went out on strike. They were immediately all fired and soldiers were brought in to maintain public order during that period. And Ron described how, at that time, the police union reached out to the AFL, the American Federation of Labor. At the time CIO did not exist. They reached out and asked the AFL to go out on general strike with them in solidarity and AFL went back to their people and they all said, "Hells no. These are the same people who were busting skulls when we went out on strike. Why are we going to help them?" And Ron attributed the fact that, to this day, most police unions are not part of the AFL-CIO, not part of the formal labor movement. That's why in Texas, they're all police associations instead of unions.
Scott Henson: Well, Arlington shows that really hasn't changed that much. And CLEAT and other law enforcement organizations were very happy to be carved out when they're stripping away union member's rights to have dues check-offs at the legislature and things like that. And so it really is a very different animal.
Mandy Marzullo: Yeah. It's funny. I was going to say that they aren't different and that I was sort of heartened by TPPF's criticism that, really, at the end of the day, law enforcement unions, their expertise extends only to the terms of employment.
Scott Henson: Right.
Mandy Marzullo: The conditions of employment. But they aren't policy experts. They don't know what they're talking about when they're taking a position on custodial interrogations or even some punishment issues. In those instances, I think it makes a lot more sense just to let the heads of police agencies talk about what is and isn't feasible from their management perspective.
Scott Henson: That's certainly right, and I think what this public policy report is reacting to explicitly was the police union's killing a bunch of reform bills this session. The Sandra Bland Act was one. Again, the police fitness requirements was kind of a funny one. But they stuck their nose into all sorts of stuff, even your death penalty issues, for reasons that are just inexplicable. What expertise do they have in that area? None at all. But they're spending most of their time on these public policy questions. I mean, to the extent that you're talking about their pension or something, absolutely. They have a place at the table. That's compensation and benefits and workplace conditions, all that stuff. But to the extent that you're just saying, "No, we should punish harsher and have more arrest authority and be able to arrest for more and more things and you can't restrict it in any way," that's just not their place.
Mandy Marzullo: No, no. And I think you saw some pushback with it, with the death penalty bills that they took positions on. They really went outside their expertise. When I spoke to them, they would just say, "Well, what if they shoot a cop?" It doesn't matter if the person was in a psychotic episode and it's not deterrable anyway. They just felt like any time a cop was shot, someone else should be killed. And that kind of reaction demonstrated that they didn't what they were talking about, and I think they lost credibility.
Scott Henson: Right. Well, they absolutely lost credibility because by the end of the session, they were being openly denounced by the speaker pro tem on the House floor. And he's basically saying they don't have credibility on these policy questions. He was very explicit about that and there was a lot of bipartisan agreement with that sentiment by the end of session because they had really overplayed their hand to such a great extent.
Scott Henson: Next one. In the Houston mayor's race, Mayor Sylvester Turner's most prominent opponent, millionaire attorney Tony Buzbee has insisted in his stump speech that Houston is one of the most dangerous cities in America and that "all types of crime are on the rise." In response, he says Houston should boost its number of police officers by nearly 40%. But Houston Chronicle reporter St. John Barned-Smith and Jasper Scherer debunked Buzbee's claims about crime using official data and commentary from national experts. They found that crime rates in Houston are near all-time lows and among large US cities, Houston ranks in the middle of the pack on crime, prompting Buzbee's campaign to declare the newspaper its "enemy." So Mandy, fill in the blank. Tony Buzbee's crime claims are?
Mandy Marzullo: Nonsense. One of the best criticisms of American politics that I've ever heard was that too often as voters we look to outcomes and not how politicians make decisions with whatever limited information they have at hand, and in this case, we have a political candidate refusing to talk about data and demonstrating that he can't work with stakeholders. If someone disagrees with him, he's not going to try and work with them.
Scott Henson: They're the enemy. That's right.
Mandy Marzullo: So, I mean, he sort of disqualifies himself from the race as he's talking, and I really hope we get to a point where voters are able to think of this that way.
Scott Henson: Right. Well, I thought that his crime claims were demagogic. Again, I think that's-
Mandy Marzullo: Again?
Scott Henson: ... that's our theme here for Houston politicians, I guess. But the reality is that when you look at crime data, frankly, it's very complex. There are so many different types of crime. Nearly all nonviolent crimes have plummeted in Houston. Among violent crimes, there are a couple of categories that've increased. Most categories have decreased and there's even some data issues around some of the increases. For example, rape cases everywhere have gone up a lot since the uniform crime report changed its definitions a few years ago, and then reporting increased as a result of Me Too. And so we don't completely know whether that means there's more of those crimes or whether the change in definition and increased reporting just means that we know more about it. How you interpret it really requires some nuance and there's some open questions that we don't have the answers to and that an honest person couldn't say we have answers to. Exploiting that uncertainty to just say, "No, it's terrible," is intellectually dishonest. Especially when you ignore all of the areas where crime's going down to say, "No, crime in all categories is on the rise." Well, that's, in fact, just a lie.
Mandy Marzullo: No.
Scott Henson: Just isn't even remotely true, and it means that you can't have an honest conversation about the areas where it is going up, where you might want to delve a little deeper and say, "Okay, we need to look into this category and see what's really going on here." So it's counterproductive, it's demagogic, it's incredibly disappointing that that's where the terms of debate are.
Scott Henson: Now, that said, I do want to give a shout-out to the two reporters because when politicians just make expressly false claims like that, for years and years, reporters didn't know what to do with that. And I feel like that in the wake of the Donald Trump era, the reporters have had to figure out for the first time, okay, how can I do this so that I'm not giving someone who's just lying a platform? And I think what made Buzbee the angriest in this story was the reporters just called it out. They would quote him saying, "All types of crime are on the rise," and then they would say, "Well, no. These ten categories are going down and these two have gone up and here's the experts and here's the data," and just expressly rebutted the falsehood. And that is journalists having a learning curve here in this new era, and I guess it's worth mentioning that Buzbee was one of Donald Trump's biggest Houston fundraisers. So maybe there's some stylistic connection there, but I thought they deserved a lot of credit for how they approached that.
Scott Henson: Now it's time for our rapid-fire segment we call The Last Hurrah. Mandy, are you ready?
Mandy Marzullo: I was born ready. Let's do this. When Dallas reported a bump in crime rates earlier this year, Governor Greg Abbott deployed DPS troopers to help patrol the city, but after allegations of over-policing in minority communities and a shooting by DPS troopers at a traffic stop, the agency is withdrawing its officers after just three months. Scott, what lesson should we take from this experience deploying the highway patrol in a major Texas city?
Scott Henson: I feel like we've learned that urban law enforcement is a different animal from what the highway patrol does, that giving tickets on I-40 or whatever is just different from going into South Dallas and dealing with people at the level that urban cops have to do every day. They were unprepared. Colonel Steve McCraw from DPS basically said the only people who were criticizing the DPS were those who'd been arrested by them. Well, in fact, it was local city council people and much broader than that. So hopefully, despite those public comments, they've learned a lesson and won't stick their nose in where it really doesn't belong in the future. Dallas, we now know from their staffing study, does have enough cops to cover what they need to do and it's not really the place of the highway patrol to jump in and do that.
Scott Henson: Next up, police officers in Dallas have been indicted for murder four times in the last three years with Officer Amber Guyger's murder trial beginning this week for the shooting death of Botham Jean, a worship leader with deep community ties who was shot in his own home. Guyger claims she thought she was entering her own apartment, which was on a different floor. Mandy, does this represent a turning point regarding deaths in police custody?
Mandy Marzullo: Not really. I am happy that they're prosecuting somebody for shooting a citizen who was sitting in his living room, just watching TV. But indictments for police shootings, even in Dallas, are still pretty low. We're talking about less than 2% of the time. And that is appalling by any metric. So I think we need to a significant increase before we say that we're at a turning point. Or approaching a prosecution level that would lead to the [inaudible 00:39:43].
Mandy Marzullo: Last one. After the governor in Oklahoma appointed a religious prison ministries advocate to the parole board, parole rates have increased 41% and commutations, which had dwindled to almost zero, increased 1300%. What lesson should Texas take from this example?
Scott Henson: Two things, really. First that it is okay to have parole rates increase and there's not necessarily going to be some huge political backlash. Oklahoma's a very conservative place. If they can accomplish that, we can, too. And second that who is on the parole board really matters.
Mandy Marzullo: Yes.
Scott Henson: In Texas it's almost all ex-cops and prosecutors and people who are very much on one side of the equation and appointing someone who does have prisoner's interests more in mind, someone from that religious prison ministries background has made a big impact and I'd love to see somebody like Prison Fellowship or some of the religious ministries here in Texas recommending people for the parole board to the governor. I think it would really help for us to get more diversity on that body.
Mandy Marzullo: Yeah. Diverse groups make better decisions.
Scott Henson: All right. We're out of time, but we'll try and do better the next time. Until then, this is Scott Henson with Just Liberty.
Mandy Marzullo: And I'm Amanda Marzullo with the Texas Defender Service. Goodbye, and thanks for listening.
Scott Henson: You can subscribe to the Reasonably Suspicious podcast on iTunes, Google Play, or SoundCloud or listen to it on my blog, Grits for Breakfast. We'll be back next month with more and hopefully better news, and until then, keep fighting for criminal justice reform. It's the only way it's going to happen.
Transcript by Rev.com.
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7 comments:
Companies have every right to call the police to continue operations during a strike just as the union people on strike have every right to protest peaceably. Calling the replacement workers "scabs", a derogatory term for replacement workers during a strike and then implying that police are engaged in immoral behavior for keeping the peace (compared to the days of old of course) seems sketchy. Neither police nor fire employees can legally strike but both can be called upon to restore order if strikers are trying to commit arson or otherwise engage in illegal acts.
Then, the automatic assumption by you and Amanda that union leaders can't possibly be policy experts or "know what they are talking about" is a sweeping generalization that you'd be offended about if it were applied towards reformists. The belief that the head of police agencies should be the sole parties allowed to interject opinions on wide ranging topics seems funny considering some of the past blog pieces here about Art Acevedo's exploits in Austin or Houston. While I'd never suggest ONLY police should be allowed to have an opinion regarding sentencing, for example, many of us certainly have some experience or expertise in becoming part of the discussion. If some elected politicians decide to lean too heavily on police-centric advice, that is on them and voters can hold them accountable, but in many cases, we are directly impacted and should have every right to make suggestions. It's important to note that while CLEAT and the FOP are the big fish on the block in terms of police unions, many of their leaders haven't worked the streets in so long that I'd question their policy expertise myself on certain matters, but they sure aren't the only kids on the block, nor should they be treated as such.
I'd go on but don't want to overstay my welcome.
Certainly, in a right-to-work state, companies have a right to call the police to clear strikers. But then, understand that is the historical reason why police unions are alienated and dissociated from the rest of the labor movement. No one in Arlington engaged in arson or damaged property. The cops were there to break up the picket line.
And union folks tell reformers ALL THE TIME that they don't know what they're talking about, even when we have specific expertise or on-point research based on the cops' own data. I haven't been offended at that in decades, its common as dirt and just part of the police union playbook to pretend that anyone who's not a cop doesn't know what they're talking about. Sometimes it's true - we're not insiders with access to hidden information. However, with the police unions it's objectively true on most issues that don't involve compensation or working conditions. They are proud of it. On Mandy's bill about executing ppl with serious mental illness that we discussed, for example, no one from the unions had a clue about the constitutional issues or SCOTUS cases involved and didn't care to hear or understand them. They just believed "if someone kills a cop, they must die."
I agree CLEAT and FOP leaders are a long way from their roots as street cops, but your assumption that being a cop makes you a policy expert is simply wrong. Having lived experience doesn't mean you have an analysis of that experience, much less policy expertise, and often means, in fact, that you do not. Just because you are a bird doesn't make you an ornithologist.
Oh, but thanks for listening! :)
3:52 here, "clearing a strike" these days typically means preventing damage or making sure the alternative employees have access to the workplace-strikers cannot block said access as part of the strike. My comments regarding the knowledge either side has do not deny reformists often obtain expertise but at the same time unions, police or otherwise, do exactly the same thing. The claim the two of you made, which may prove out in some cases but not all, was that the union people lack the knowledge reformists have which is a sweeping statement unless qualified as you did on the followup answer. I don't speak for the unions, especially regarding the mentally ill death penalty advocacy, but the narrative from the union's that champion such a stance is likely tied to the belief that someone claiming temporary insanity may fake it to get out of the consequences of their act (off the top of my head, that defense is not very effective in terms of how often it works), no provision for a "life in a mental hospital" provided instead of death.
As far as generic street officers automatically rising to some level of critical expertise solely as a result of their employment status, I never claimed that all or even most such officers have in depth public policy expertise but they often have a great deal more experience in related fields than well meaning reformists. My take is that simply pinning a badge on your chest does not convey expertise but neither does employment in a given reformist organization or being a well meaning individual that "took a course once" as many seem to throw out there in regards to why politicians or the general public should listen to them.
This being said, I agree with you if you are saying too many people convey expert status to people simply because of a credential beside their name or a job title-I just think it applies to both sides of the stated equation. As I mentioned above, most of what MOST unions do is related to day to day member needs, not these public policy issues you and Amanda took exception to rather than your narrative to the contrary-I suspect you feel that they engage in the other stuff the majority of their time because those are the times when the two of you encounter police union leaders. And I wouldn't expect you to understand this but the idea that managers in a police organization, maybe captains up to chiefs, are necessarily the ones people should listen to on policy matters while excluding the lower ranks forces me to let you in on a poorly kept secret that many of those managers are as dumb as a sack of hammers. lol
But suffice it to say, I read the blog and listen to the podcasts because I DO believe you have some insights to offer, some knowledge to be learned, and some perspective that I am not likely to get by parroting a statewide union hack from CLEAT or the FOP. I'd be lying if I said they weren't worthy of keeping track of as well and I'm not measuring relative competency levels here, just accepting that even if you dumb down these complex topics to two "sides", neither the reformists nor the unions have exclusivity rights to some objective truth. It's a compliment to both of you that people follow your personal takes on such important matters but the us vs. them attitude comes from both sides most of the time and it really shouldn't.
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