Wednesday, December 30, 2020

Keller PD arrest puts a family face on 64k Class C arrests at Texas traffic stops

Out of Keller, TX comes the Lone Star State's latest police misconduct case with bystander video gone viral. Cops used a Class C arrest over a "wide right turn" to search Dillon Puente's vehicle when he refused consent, then used excessive force against his father, Marco, in retaliation for recording the incident. They arrested Dad on a phony obstructing the roadway charge. See WFAA-TV's coverage. and a New York Times story about the family's lawsuit.

The Texas Legislature bears as much responsibility for this episode as the officer. The US Supreme Court ruled 20 years ago in Atwater v. City of Lago Vista (a seat belt violation case) that whether officers could arrest for Class Cs is a legislative decision, and that state lawmakers would need to change the statute to forbid it. State Rep. Senfronia Thompson has filed legislation to restrict such arrests in HB 830 and as part of a larger omnibus "George Floyd Act," which is HB 88

Legislation to restrict the practice passed in 2001 (immediately after Atwater) but was vetoed by Gov. Rick Perry at the behest of police unions. In 2003, Perry vetoed another bill which would have required law enforcement agencies to have written policies stating when their officers could arrest for Class C misdemeanors. Since then, it's become common for police to arrest for Class Cs when drivers refuse consent to search. It's considered one of the "tools in the toolbox," as the practice was described after Sandra Bland's high-profile arrest (over her alleged failure to signal a lane change) and death.

At one time, police claimed these were rare occurrences and officers were only arresting dangerous people. Now, thanks to the Sandra Bland Act passed in 2017, we know that's not true. Today, law enforcement annually reports data on how many people are arrested for Class C misdemeanors to the Texas Commission on Law Enforcement. (See here.) 

It's a big number. Police officers arrested people at traffic stops for Class C misdemeanors - either traffic violations or local, municipal ordinances - 64,100 times in calendar year 2019. And to be clear, if the person was arrested for more a serious offense, it's reported in a separate category. (The 64,100 number comes from adding together columns GS and GY.) 

When Texas Appleseed analyzed jail bookings at eleven large counties in 2019, they similarly found many more Class C arrests than anyone expected. This problem has been hidden in plain sight, but no one could document it until data began to be collected under the Sandra Bland Act.

This use of Class C arrests to get around the Fourth Amendment results in millions in jail expenses, hundreds of thousands of wasted officer hours, and tens of thousands of Texans being taken to jail over petty bullshit.

The Keller case puts a face to the Class-C arrest issue in the same way Sandra Bland's did, but this isn't so much about individual drivers' personalities as it is the government's policies.

The officer who arrested Dillon Puente and used unnecessary force against his father deserved the demotion he received, but mainly for how he treated Dad while he was filming. The reality is, the son's arrest, as unfair and inappropriate as it may seem, for the most part comports with state law and represents the system working as it was designed. Now that those design flaws have become apparent, and have been documented both via anecdotes like this one as well as statewide data, it's time for the system to change.

MORE: Your correspondent was quoted in this WFAA story about the case.

Sunday, December 27, 2020

What does a successful "Defund the Police" campaign actually look like? Reconsidering Texas' abolition of Tulia-style drug task forces in light of 2020's #DefundThePolice frame

In 2020, the phrase "defund the police" captured the public imagination, for good or ill, and became the centerpiece of conservative messaging against Democrats in the fall. But it wasn't that long ago that Texas defunded dozens of regional drug task forces without any of the #DefundThePolice backlash. At their height, those task forces collectively made around 12,000 arrests per year (see FN 26 in this report), but in 2006, Gov. Rick Perry eliminated their funding with the stroke of a pen, the culmination of a years-long campaign launched in the wake of the Tulia drug stings.

What lessons might be drawn from that experience to inform "defund" or other reform campaigns today?

Grits believes there are several, including 1) the target must cooperate by remaining recalcitrant and defiant when misconduct is exposed, and 2) such an outcome requires an all-hands-on-deck approach using every advocacy tool in the book, from litigation to lobbying to public education and every other strategy, tactic and method available. Before the task forces were abolished, many hundreds of people and dozens of organizations were involved in the campaign and played pivotal roles at various points.

This let-a-thousand-flowers-bloom approach made the movement extremely flexible. In politics, timing and framing are everything. This occurred to me this morning when I ran across this Grits post reviewing the drug-task force saga. Over and over, promising strategies would fail and unlikely approaches taken by others would fill the void.

At the apex of their influence in the late '90s, there were 51 such multi-county agencies in Texas employing more than 700 narcotics officers statewide, all funded through federal grant money. This they supplemented with asset-forfeiture revenue: task forces were encouraged to "eat what they kill."

Their defunding in 2006 was a mixed outcome. Grits was indifferent to modestly appreciative about the drug-court money, opposed to the border-security initiative, but pleased as punch that this network of 700 officers lost its funding (though there weren't nearly that many by the time Perry pulled the plug). Of officers whose positions were eliminated, Grits' recollection is that about 150 or so were repatriated to their old agencies. But many had been hired on contract and just lost their jobs. (A few of those guys were quite mad at me and others involved in the campaign for several years afterward.)

Still, in the wake of how the politics of police accountability has shifted in 2020, with emphasis migrating from oversight and training to "defunding," it's worth recalling this successful "defund" campaign from the past. What did defunding Texas drug-task forces look like in actual, messy, real-world politics?

In a nutshell: Extreme, persistent misconduct by a handful of agencies, coupled with examples of discriminatory enforcement by most of them, resulted first in expanded oversight, then in defunding and abolition when oversight proved ineffective.

The advocacy campaign began with legal observers attending court hearings of drug defendants from the Tulia drug stings in 1999 (shout out to Jeff Frazier and Will Harrell). Reform legislation was passed in 2001 and 2003, then the task forces were placed under DPS control in 2005. Gov. Perry defunded them in 2006, the year before he signed the state's landmark probation reforms. So start to finish, it was a seven-year campaign; defunding the task forces was an overt goal for roughly five of them.

The various stages of this process involved all three branches of government: Courts identified problems through civil litigation and criminal prosecutions of errant police officers, accompanied by a wave of media coverage, including national outlets like 60 Minutes. In 2005, the Legislature placed then-autonomous task forces under DPS in an attempt to reform their practices. The following year, Governor Perry pulled the plug, exercising his authority as distributor of that particular stream of federal grant funds under state and federal law. The actual deed was anti-climactic: Grant funds in the budget were shifted from one line item to a couple of others.

The Tulia legislation in its various iterations established a vote blueprint for passing bipartisan justice reforms at the Texas Legislature that, more or less, advocates still use to this day: Bills can pass if reformers can keep 75% of Dems from bailing while holding onto 40% of Republicans. Reaching that level of support doesn't guarantee success, but dip below either threshold and your bill will likely fail. In the Texas House, especially, those numbers hold up rather reliably; in the Senate, Dan Patrick can and does withhold even bills with popular, bipartisan support, so those formulas don't always apply the way they did under his predecessors. 

In the case of drug-task forces, there were baby steps before defunding finally happened. Agencies began to drop out to avoid civil liability and many of those jurisdictions requested the same funds for other purposes. At ACLUTX, one of our strategies was to distribute grant applications to potential grantees and walk them through the application process to generate competing demands to the governor from city and county officials.

The final outcome in many ways required the task forces' cooperation, at least in terms of their poor behavior. These were conclaves of cops stationed largely in rural areas and their hostile reactions to increased oversight, or even politicians asking questions about what they do, contributed to the perception that they couldn't be reformed. Task forces rebelled against DPS authority, refusing to abide by new rules that de-prioritized drug-possession busts and changed their performance metrics to focus on drug-trafficking organizations. There was a moment when they could have continued to operate if they were willing to professionalize their operations and stop myopically focusing on low-level drug-possession and asset forfeiture. They were not. 

Another big reason defunding happened was that Governor Perry identified political opportunities to use those funds in other ways - some of which reformers may (modestly) approve of, some of which they may not. The campaign against the task forces had generated alternative demands for funds, including for drug courts, which were being touted at the time as among Perry's flagship criminal-justice reforms. And it gave him ready access to funds for grandstanding "border security" operations with Bubba-friendly names like "Operation Linebacker."

It should also be mentioned that the campaign to defund Texas' drug task forces was unimpeachably bipartisan and the major House votes all enjoyed triple-digit majorities. Oddly, in retrospect, former Republican House Criminal Jurisprudence Committee Chairman and later House Parliamentarian Terry Keel was a key figure in forcing regulation of drug task forces and shifting them to DPS control. I say oddly because Keel has recently been promoting legislation to force the Austin Police Department under DPS, just as he did with the task forces.

As an aside: Grits finds it fascinating that moving agencies under DPS is Terry Keel's go to move: Apparently he thinks DPS should run a lot more local agencies than it does! Legislators might remember that when the Austin-bashing bills come up: He could come for your guys next.

Anyway, Texas' defund-the-task-forces campaign required many years of steady, persistent, opportunistic advocacy work, including years-long litigation that launched careers: The main civil case coming out of Tulia was steered by Innocence-Project-of-Texas founder Jeff Blackburn and Vanita Gupta, who went on to lead the Civil Rights Division in Obama's DOJ and now runs the Leadership Conference on Civil Rights. Nate Blakeslee's first book, Tulia, focuses almost exclusively on their legal effort.

But while litigation set the stage, from there the mechanisms which led to defunding involved a great deal of legislative lobbying, independent primary research to document problems the press was ignoring, and a large-scale, grassroots organizing campaign funded significantly by out-of-state foundations. 

No state official in Texas had seriously considered defunding task forces at the turn of the century, even after the Tulia drug stings made national headlines. State leaders including legislators and Rick Perry first had to get fed up: They only took bold action after they'd personally tried to "reform" task forces, only to watch them buck official direction in much the same way Austin PD Chief Brian Manley ignores his marching orders, slow walking City Council directives and/or naysaying their pronouncements publicly.

Grits' takeaway: Leaders won't take even modest "defund" steps if they think the agency will undertake a reform path. In both the case of drug-task forces and the Austin PD this summer, more radical action was taken in large part because agency officials had been unwilling to embrace less aggressive, earlier reforms. I'm not sure the movement gets to skip the years-long process that gets leaders to those conclusions. It's arguably a pre-requisite.

I've always suspected, though have never seen it mathematically documented, that task-force abolition contributed, perhaps as significantly as the 2007 probation reforms, to flattening what was then Texas' steadily upward incarceration curve. Even if local agencies picked up some of the slack, eliminating entities responsible for 12,000 drug arrests per year had to take pressure off the system.

It's hard to conceive today, at a time in history when criminal-justice reform is more popular, but 15 years ago among Texas advocates, nobody dared dream of "Cut 50." Sure, by that time there were academics in ivory towers debating "prison abolition." But our more immediate goal back then was just to make the upward curve level out, staving off the large, continuous increases in incarceration which began during the Ann Richards era and continued throughout George Bush's governorship and Rick Perry's first term. To the extent the Drug War contributed to rising incarceration rates, slashing even a large fraction of those 12K arrests per year must've had some effect.*

There were folks at the Drug Policy Alliance who hoped Texas' campaign to abolish Byrne-grant-funded drug task forces could be replicated nationally. Many (but not all) other states fund similar task force systems with their Byrne-grant money (or did at the time). But Texas is the only state to ever pull off a complete shut-down.

In retrospect, it's easy to see why: Too many things had to go right. The level of serendipity required to convince Republican state leaders to simply defund law enforcement and spend the money on something else - with litigation, lobbying, and public-education strategies working hand in hand - was never duplicated elsewhere. What's more, advocates failed here in Texas when it came to influencing how the money from defunded agencies was spent. To the extent investment is as or more important than divestment, that part of the project failed to live up to expectations.

When it comes to 2020's "defund" debate, Grits is not a full-blown abolitionist but believes the overall footprint of law enforcement and the justice system should be substantially reduced. That said, I was 100% for abolishing drug task forces, which may signal another significant difference between the two scenarios.

The campaign to abolish task forces wasn't about abolishing police, although it was a conscious effort by activists to scale back law enforcement's footprint. Still, one could criticize drug-task forces without implying one wanted to abolish police in general. In fact, because some agencies used them to offload bad cops they couldn't fire, and because many filled out their rosters with so-called gypsy cops, they'd developed a poor reputation among traditional law enforcement and, when it was their turn in the barrel, they turned out to have surprisingly few defenders. The same can't be said of local police departments, much less those with strong police unions. They've spent decades cultivating public support.

So there are ways drug-task-force abolition is useful as a defund-the-police case study and ways in which it just may not apply. Police abolitionists certainly face a more entrenched foe at local PDs than we did at the task forces. That said, I'm guessing that, if abolitionists ever succeed anywhere, the victors will have engaged in a similar, years-long process of a massive, multi-pronged movement attempting and failing at reform in the face of a recalcitrant agency. To that extent, the process may mirror what the task forces went through.

*Texas' prison population did level off in the years following task-force abolition, but there are a number of competing theories for why and it's hard to discern which factor was decisive. Probation/parole reforms passed in 2007 were also aimed in part at reducing incarceration pressures. Around 2012, the parole board began slightly increasing rates of offenders released on parole, which led to a decrease big enough to close several prison units in 2013. Then in 2015, the state adjusted property thresholds upward, making the minimum-felony-theft threshold $2,500, the highest in the nation. This reduced both sentences of incarceration and the number of people on felony probation eligible to be revoked to prison. The election of less regressive DAs in Texas' large cities could be contributing to lower incarceration numbers. Finally, although the state has seen a murder spike in 2020, crime declined significantly for much of the last 15 years and it's possible lower prison totals may be explained by that direct, simple fact. Nobody knows for sure. Regardless, Texas' prison population today has reached levels unseen since the mid-90s, with plenty of room left for even further reductions.

Wednesday, December 23, 2020

Limiting police pursuits would save lives but cops like them too much

Houston police Chief Art Acevedo says HPD won't change its policies after three high-speed chases in one night, all of them initially stemming from suspects who fled at traffic stops, resulted in two innocent bystanders killed. According to press reports, Houston cops on average undertake 2-3 high-speed pursuits per day. Similar issues arose when the chief was in Austin.

Indeed, overuse of police pursuits has been a hobbyhorse of this blog for many years: High-speed chases are among the most dangerous things police officers do and result in many preventable deaths. In 2015, USA Today reported:

More than 5,000 bystanders and passengers have been killed in police car chases since 1979, and tens of thousands of more were injured as officers repeatedly pursued drivers at high speeds and in hazardous conditions, often for minor infractions, a USA Today analysis shows.

On average, more than one person per day dies in a police pursuit nationwide, about a third of them bystanders. Moreover, there's good reason to believe that bystander deaths from police chases are significantly undercounted. For that matter, high-speed chases are dangerous for officers as well, more of whom die from traffic fatalities than gunshots.

To the extent traffic safety is public safety, the public is safer without high-speed pursuits: the best-available research shows that, "a suspect who does not know he or she is being pursued will drive in a reasonably safe manner, and suspects who know they are being pursued and drive dangerously will slow down after the police terminate their pursuit." So, especially when a suspect is being chased solely for a potential traffic violation (as was the case with the deaths in Houston), chasing them through the streets in a car makes the public less safe than simply taking down the license plate number, if possible, and following up later.

It's okay. Not every hooked fish ends up in the boat.

These are not new issues, it's just a topic where law enforcement has dug in their heels, whether they genuinely believe chases make people safer or just enjoy the thrill of the chase. Either way, it's a high-risk endeavor. In 2010, the SA Express News analyzed pursuits in that city. They found: 

In the past six years, officers chased vehicles nearly 1,200 times — an average of one chase every two days. Two of five chases reached speeds of 60 mph or more.

Forty percent of all chases — 480 incidents — damaged cars or property, in cases ranging from minor fender-benders to horrific wrecks.

Nearly one of five chases injured someone — usually the suspect.
The problem is, the Express News reported, when officers undertake a chase they initiate a series of high-risk actions they can't control:
In a nationwide study of police chases by the International Association of Chiefs of Police, the most frequent ways a pursuit ended was when a suspect gave up; there was a collision; or the suspect got away.

“What is telling about these statistics is that 72 percent of all pursuits end because of a reason that is almost completely out of the hands of the police,” wrote the study’s authors, Cynthia Lum and George Fachner.

Arguably the greatest car-chase scene in cinematic history, with apologies to the Furious franchise
Arguably the greatest car-chase scene in cinematic
history, with apologies to the Furious franchise
Desistance by police officers in most cases makes far more sense than careening through the streets like an extra from The Blues Brothers. Grits is a long-time Popular Mechanics subscriber and in 2013 they ran a somewhat optimistic and premature feature titled, "Why high speed chases are going away." The author, himself a police officer, had come to believe over his career that the juice simply wasn't worth the squeeze. Quoting one of his own trainers, he wrote:
About one-fifth of police departments allow pursuits only for felony offenses, while half require the pursuit to end when the suspect has been identified, according to the IACP study. "Ending the pursuit" often means the officer must switch off his lights and siren, stop, and turn around. Vaughan says departments commonly require the permission of a supervisor to allow or continue a pursuit. The new limited-pursuit policies mean that if an officer is chasing someone, the officer—and his supervisors—believes the suspect has done something really bad.

Still, not pursuing a suspect is hard for some cops to accept. "[It's] a difficult pill for some officers, especially the less experienced, to swallow," Vaughan says. "They perceive a fleeing suspect as something personal." The authors of The Criminal Law Handbook (Nolo Press) label running from the police "contempt of cop."

But times change, especially in a society prone to high-dollar litigation. "Chasing was far more prominent back in the day when there was not as much training and officers had more leeway," Vaughan says. "There's been evolution of the profession through better training and better policies. Also, departments that have experienced litigation are encouraged to change their policies by insurance-fund administrators."

Will limited-pursuit polices cause more drivers to flee, knowing police regulations restrict high-speed pursuits? An IACP study found no evidence to support that. Also, interviews with people who have fled from the police, conducted by the National Institute of Justice, revealed that the offenders returned to normal driving within about 90 seconds of the chase's being abandoned.
The rationality of such evidence-based commentary today seems almost quaint. With 20/20 hindsight, it's clear the author over-estimated the extent to which police departments are responsive to litigation costs, and underestimated the extent to which "but we've always done it that way" would become its own self-fulfilling justification for cops like Chief Acevedo who simply don't want to change. 

Monday, December 21, 2020

How should journalists cover blatantly false or misleading statements from self-interested pols?

Last week, Grits considered responding to Austin-bashing press conference by the US Attorney for Texas' Western District, but the phony outrage was so tired and lame I couldn't muster the energy. Luckily, at least some in the Austin press corps - notably  Jolie McCullough at the Texas Tribune and Mike Clark Madison at the Austin Chronicle - chose either to debunk the falsehoods or just not to take the bait.

It's all been so silly. The murder increase in Fort Worth has been larger than in Austin, and they started with many more murders to begin with. But Austin gets special federal focus?

I don't blame Mike Clark Madison for choosing to ignore this piece of "copaganda" from a Trump Administration official who won't have a job in a month. But the Texas Tribune's McCullough took the opposite tack, aiming to debunk the misinformation instead:

“When you defund the police, relax enforcement of existing criminal law, and release repeat offenders and violent criminals into our streets, increased violence is exactly what you can expect,” Gregg Sofer, a newly appointed U.S attorney for the Western District of Texas, said in a statement after a press conference.

Austin police, like those in Fort Worth, recently stopped citing and arresting people for possessing small amounts of marijuana. The decisions arose from the state Legislature's legalization of hemp in 2019, which made it difficult for law enforcement officers to distinguish between legal and illegal cannabis. Recent decisions by several Texas counties to release more people from jail during the pandemic also brought backlash from the governor.

Last month, Austin Police Lt. Jeff Greenwalt addressed the rise in homicides at a press conference, but he said violent crimes detectives were still in the same shape under the new budget, “if not better.” He said given the city’s safe standing among other cities, he wasn’t yet concerned with the rise in some crimes. It’s hard to predict trends off of a small amount of data.

“We saw a rise in violent crime in the very early months of 2020, before the reimagining and the defunding conversations came up,” Greenwalt said. “I don’t think that we can say that the numbers in 2020 are reflective of that issue.”

Which is the right approach when public officials spread misinformation, ignore it or debunk it? I'd suggest both, in that order. Ignore it today, debunk it tomorrow.

Journalists should avoid reporting false statements from press events like the US Attorney's, even to debunk them, at least in the news cycle or two after they're released. The false information is being timed for a reason. As a journalist, don't be a tool for spreading it unless you fully understand what it is. Later, the information can and should be contextualized and debunked, with falsehoods a) clearly identified and b) the main point of the story.

In my imaginary world of journalism best practices, when Greg Abbott held a press conference in Fort Worth to say they were doing criminal justice right compared to Austin, pointing to the rising murder rate in the capital while ignoring that Fort Worth's was much higher, reporters would have taken note of the event but not immediately written about it. After all, it's a false statement; it has no news value.

What does have news value is the story, "Governor Makes False Statement." But that story takes research and context to write, and is more appropriate several days hence.

Live footage of reporter trying to decide how to cover Austin-bashing copaganda
Live footage of reporter trying to decide
how to cover Austin-bashing copaganda
Same goes for the US Attorney. Mike and Jolie both were right. It's not good to promote false memes, and it's also good to debunk them. It's not at all obvious which approach is right and puts the reporter in the position of a baserunner caught in a rundown between second and third: No great options.

While I realize many people believe all politicians lie, things are objectively different now. The dam has broken in the last four years, and especially in 2020. The Trump presidency demonstrated what a bind it puts journalists in when politicians are willing to openly flaunt facts. Now, state and local reporters face the same tactics and the same hard decisions about how to cover them. Ignore them? Debunk them? Report "both sides"? Should they characterize false representations as "lies"? "Mistakes"? "Spin"? "Wishful thinking"? "Blatant falsehoods"? If falsehoods further a political agenda, when should motives be impugned? These are not easy or obvious questions.

Eight years ago, Grits wrote a short essay titled "Ten Maxims for Making Journalism Relevant in the 21st Century." In retrospect it holds up well to the post-Trumpian era as a guide for how to approach these and related questions. Those interested should give it a read.

Tuesday, December 15, 2020

Five random thoughts and a minor boast

Apropos of nothing, here are five random thoughts and a minor boast.

1. Say what you will about the "defund" message, but there's more activity going on around the state regarding police reform, not to mention more bills filed on the topic at the Texas Legislature, than at any time this century. None of it would be happening if it weren't for the protests this summer. It's easy to forget that this time two years ago, the reform movement was more or less dead in the water.

2. On top of COVID and everything else, 2020 has been a grim year for Texas country music fans: Charley Pride, Billy Joe Shaver, Hal Ketchum, Doug Supernaw, Roy Head, Johnny Bush, Jerry Jeff Walker, Justin Townes Earle (Steve Earle's son) ... the number of Texas musical heroes we've lost this year is rapidly mounting. Tack on John Prine, like Charley Pride, a COVID victim, and these are among the folks who wrote the soundtrack for my entire life. Grits took the news of Shaver and Pride's deaths especially hard. (I knew all the lyrics to "Georgia on a Fast Train" and "Kiss an Angel Good Morning" by age nine or 10.) Each new one feels a bit like a body blow. The one bright spot has been Willie Nelson and Karen O putting out an amazing version of "Under Pressure." I've probably listened to it 50 times.

3. Newspapers and TV outlets should ditch their crime beats as we know them today. Here are two reporters at Nieman Labs making the argument why. Grits in the past has suggested eliminating all pre-adjudication coverage and still think that's worth considering. But even I hadn't made the case quite this strongly. Their column opens:

Let’s be honest: Crime coverage is terrible.

It’s racist, classist, fear-based clickbait masking as journalism. It creates lasting harm for the communities that newsrooms are supposed to serve. And because it so rarely meets the public’s needs, it’s almost never newsworthy, despite what Grizzled Gary in his coffee-stained shirt says from his perch at the copy desk.
4. A few weeks ago, the Houston Chronicle's Eric Dexheimer authored a piece about a District Attorney out of Dalhart who dismissed DWI, marijuana, and other cases in exchange for large donations to area nonprofits as part of an illegal pretrial diversion scheme. The arrangement violates state law but no one in power was willing to expend the political capital to stop him. He lost the GOP primary in March and his opponent has pledged to stop the practice when she takes office next year. Grits had forgotten when that story came out that we saw a similar case in Brown County in 2016, an incident which was ably written up in the Texas Observer by Patrick Michels. In that instance, county commissioners brought in a forensic audit team and the Texas Rangers investigated. I can't find any record online of how that case turned out, but if any readers know, please inform us in the comments.

5. On Twitter, a New York City defense attorney marveled at how many clients he was seeing arrested for carrying swords. Grits replied, "Texas straight up legalized carrying swords. But it hasn't really caught on bc they also legalized carrying AR-15s, so folks just do that."

And finally, a minor boast: The Austin Chronicle recently published a short profile of Grits' better half, giving her credit for her work on local policing issues. Give it a read, I'm super proud of her. 

Monday, December 14, 2020

Beyond the Bait and Switch: What we really need from police training reform

Grits has often been critical when reform demands aimed at police are rebuffed by calls for additional training. In the political arena, new training is often proposed (usually by the police unions) as a substitute for policy changes that would actually transform IRL practices. So, for example, advocates called for eliminating arrests for Class C misdemeanors following Sandra Bland's death, and instead got implicit-bias trainings that don't work. I get frustrated, admittedly, with the bait and switch.

But that doesn't mean training is unimportant. Any honest assessment of American policing would conclude that its problems begin with what cops are taught in the academy about what the job is, what they should expect, and how they should behave. Police are trained poorly, often by amateurs, and for too short a time. 

We've discussed how, in Texas, the Commission on Law Enforcement has insufficient staff or expertise to exercise meaningful oversight over police training and curriculum. And even if training were excellent, there's too little of it. Cosmetologists must undergo more basic training in Texas than police officers. By contrast, in Germany police officers train 2.5 years before being deployed in the field.

Austin's police academy had become so dysfunctional that, a year ago this month, the City Council ordered Chief Brian Manley to conduct an audit of its curriculum, setting a deadline of June. They were reacting in part to complaints by a group of cadets who sued the department alleging abusive behavior and incompetence by trainers. The chief and city manager were told at the time that the audit must be finished and improvements to the training program completed before new cadet classes could resume. If they had done that work when they were instructed, only one cadet class would have been delayed.

But in June, City Manager Spencer Cronk returned to the City Council to say they had never begun the audit because of COVID but would like to hold more cadet classes anyway. By that time, though, George Floyd and Mike Ramos were dead and the nation and city had erupted in protest. Council stuck to their guns and unanimously replied, "No audit, no cadet class." Then in the FY 2021 budget which began in October, they called the City Manager's bluff, omitting new cadet classes pending the outcome of the audit process. The Council pledged to revisit the budget in six months, halfway through the fiscal year, at which time changes could be considered. As of this writing, however, the audit still hasn't been completed, much less have needed alterations to the curriculum been identified nor alternative approaches been considered. Instead, the police department and its allies are again pushing to restart the academy before that work has been done.

It's in this context that Grits this morning read a feature in Time magazine regarding police academy training. Texas wasn't mentioned, but the the complications caused by low-quality training and a lack of state oversight struck this writer as a highly relevant, cautionary tale. Every criticism made of training in these other states arises in Texas in spades, in part because we have a disproportionate number of agencies. Texas has about 1/11th of the US population but nearly 1/6th of the nation's law-enforcement agencies. If training at the larger agencies can be problematic, training for smaller agencies amounts to an unregulated hodge podge.

I was also glad the Time article pointed me to this Bureau of Justice Statistics analysis of police recruiting and training, which I'd not seen before. The average length of US police academies is 21 weeks, according to BJS; in Texas, minimum training takes about 18 weeks (696 hours). The Houston Chronicle recently had an excellent report that highlighted some of these shortcomings:

The Sunset report found that Texas requires more time in basic training for cosmetologists (1,000 hours) than for cops (696 hours). Air conditioning and refrigeration contractors, meanwhile, have to put in 2,000 hours of training to get licensed. The Houston Police Department requires at least 48 semester hours of college credit for prospective officers but a high school diploma or GED is enough in other parts of the state.

The type of training officers receive is also out of whack with real world demands. Requiring 48 hours for firearms training and 40 hours for instruction in arrest, search and seizure is appropriate, but the regimen also includes four hours of work on interacting with canines while requiring only two hours on interacting with civilians.

The standard Basic Peace Officer Course includes only four hours for education on “Family Violence, Child Victims, and Related Assaultive Offenses” and no special training for dealing with rape victims.

In Austin, officers get slightly more training than cosmetologists, but less than air-conditioner repair people, before being handed a badge and gun and sent out into the streets.

The Time article emphasized the extent to which basic training has been outsourced to educational institutions, which almost certainly applies to entry-level training for most smaller Texas agencies. BJS reported that:

From 2011 to 2013, nearly half (47%) of the academies that provided basic training for new recruits were based at an educational institution such as a 2-year college (33%), 4-year college or university (7%), or technical school (7%) (table 1). Municipal police departments operated 20% of academies, sheriffs’ offices operated 10%, and state police or highway patrol agencies operated 6%. State Peace Officer Standards and Training (POST) agencies, which typically certify peace officers, operated 5% of academies.

That was a trend I hadn't considered, though I knew places like Sam Houston State are making bank off of police training. But I hadn't understood that half of all training happened at academic institutions, nor considered the implications arising from differences between that training and instruction by department-run academies. 

In Austin, cops are drafted from other duties to teach in the academy for short stints and given little if any pedagogical training or instructional support. Cadets complained that instructors over-used Power Point and appeared to have little understanding of basic pedagogical theory or adult education. One would at least anticipate that instructors at academic institutions might have greater access to teacher trainings and peer support on pedagogical questions. But that may be a false assumption; I have no idea what those academic curricula look like.

Another complaint about Austin's academy was instructors' over-aggressive methods. Turns out, subjecting cadets to a "stress-based" learning experience is a common approach. According to BJS:

Nearly 1 in 4 academies (23%) reported their training environment was all or mostly stress oriented (table 2). State police or highway patrol academies (61%) were the most likely to use this type of training model. For all other types of academies, no more than 32% used a predominantly stress-oriented training model.

These debates are going to surface repeatedly in the coming months, both locally regarding whether and when to resume Austin's academy and at the Legislature as TCOLE undergoes Sunset review. In both instances, more resources are needed to bring either officer training or state regulation up to snuff. 

Though some defund-the-police advocates may be offended, this is one area where Grits and many other reformers don't mind spending more money on law enforcement, particularly if officers are trained for longer and curriculum contents improve. Until the day we abolish police, we have to train them better. Cadets need to be taught under a more regulated, pedagogically sound curriculum, and God forbid, maybe for even as long as the refrigeration-repair guy. That's certainly true in Austin and, if the blue-ribbon panel suggested by the Sunset Commission is ever created, it's a safe bet they'll agree.

Saturday, December 12, 2020

Galveston has a Civilian Review Board that's somewhere on the spectrum from lame to non-existent

Grits earlier mentioned the report from the Kinder Institute at Rice analyzing civilian oversight systems in Texas. The one in San Antonio, they noted, was so obscure that members of the public calling for oversight didn't know it existed. The SA board was the only one of those studied by the Kinder Institute which wasn't independent of the police department.

Grits learned today, though, that their list was incomplete. Galveston has a civilian review board which analyzes the sufficiency of Internal Affairs investigations into serious police misconduct. But the Galveston's board is overtly designed as an advisory committee to the chief, not as an independent oversight body. I spent a little time in the Galveston Daily News archives to research them further.

The board was created in 2008 and touted as a boon to transparency. But the police union fought it tooth and nail from the beginning. Wrote Galveston-Daily News publisher Dolph Tillotson in 2008 in response to their shenanigans:

My old friend John Bertolino and other members of the Galveston police union are at it again.

They’re demonstrating — again — that if they can’t win a fight on its merits they’ll resort quickly to fighting dirty to threats intimidation and scare tactics.

That rings familiar. Indeed, Tillotson's assessment of union opposition to civilian oversight in 2008 could have been said in 2020 about police-union demagoguery in Austin, Houston, and elsewhere across the state and nation: "Then and now the effort to embarrass and intimidate was just a way to distract Galveston voters from the real issue — the behavior of the police." That's essentially an evergreen quote.

The union continued to undermine Galveston's board over the years until finally the City Council suspended it in December 2019 in response to supposed privacy concerns. The board was reinstated in February with new requirements:

The city council approved changes that will require board members to get the consent of officers to review their personnel files, prohibit board access to information designated confidential and make the board’s recommendations an open record.

The changes also require the board’s meetings to be posted by the city secretary’s office, as other city committees are, and make attendance by anyone other than city staff or board members subject to police chief approval.
In a nutshell, they increased deference to officers, limited the board's access to personnel files, prohibited board members from discussing police misconduct (outside of official, written recommendations), and limited attendance of CRB meetings to people approved by the chief. In essence, they gutted what was already a weak, ineffective system. OTOH, because it only investigated cases given to them by the police chief, the board hadn't had much work lately to begin with:
By the time it was suspended last year, the board seemingly had not had a publicly posted meeting since 2014, despite being required to meet four times a year and provide quarterly reports to the city manager and the city council. The board would only meet when it had a specific investigation to review.
It's regrettable all this came down in the months prior to last year's George Floyd protests. If changes to Galveston's Civilian Review Board had been made in July instead of February, one imagines the outcome could have been different. As things stand, it's basically an example of what not to do.

Indeed, I can't tell if the board is even meeting. Its last posted agenda was prepared by a police lieutenant in March 2018 and included the line item "Review 2017 cases." If they've done anything since then, their website doesn't reflect it.

The area around here is governed by an array of small agencies - Galveston, League City, Texas City, Hitchcock, and Santa Fe, plus the county sheriff - and even if oversight of policing on the island were to improve, the decentralized nature of Texas policing would limit its effectiveness. Civilian oversight in Galveston should be better, but more thought needs to be given to how oversight systems might function in heterogenous jurisdictions like Galveston county, much less like Harris County, which contains some 60+ law enforcement agencies.

Wednesday, December 09, 2020

Top Ten Texas Criminal Justice Stories of 2020: Looking back at a crazy, (literally) sick year

It's been a crazy year,  both for me personally (I underwent throat-cancer treatment and lost nearly 100 pounds) and for the state and nation generally, between COVID, the Trump un-election, and the massive protests surrounding Houstonite George Floyd's death that in many ways defined the year.

If we were ranking criminal-justice stories, those protests would be the biggest one from any traditional newsroom perspective, even if the coronavirus in jails and prisons claimed more lives. But those protests were also part of an ongoing dialogue that began before the protests and continued after them, particularly in Austin.  So I decided not to rank the top ten 2020 stories and just choose ten. From a certain vantage point, some of them might be considered different parts of the same narrative. Regardless, looking back at 2020, here's what Grits considers the biggest Texas criminal-justice stories from what by any measure was a tumultuous 12-month stretch:

The Beginning of the End of (Most) Marijuana Enforcement in Texas: 2020 was the first full calendar year in which marijuana was effectively decriminalized in much of the state after the Texas Legislature inadvertently redefined it to exclude "hemp," which is a less potent part of the same plant that gets people high. The Texas Tribune estimated arrests for marijuana possession dropped by more than half. Some jurisdictions still want to prosecute, but Texas DPS has said it won't provide testing for misdemeanor marijuana cases because the volume would overwhelm its crime labs. That means most smaller jurisdictions around the state don't have access to testing unless their governing body chooses to pay for an outside lab. For most, the cost-benefit analysis for doing so just doesn't make sense. Gov. Abbott and Lt. Gov. Dan Patrick have taken full-blown "legalization" off the table, so the Texas Legislature in 2021 can either 1) pay for expanded marijuana testing, 2) repeal the hemp law, or 3) leave things be. Grits is fine with option #3, at least until the Legislature musters the political will to do something closer to full-blown decrim or legalization, which is what the public prefers.

Ransomware attack sidelines Texas courts: A ransomware attack briefly crippled Texas' appellate court system; no journalist or government auditor has ever given us a detailed report of the complete fallout, but Grits is looking forward to reading it when it happens.

COVID in Texas Prisons: As of 12/8, according to the Texas Department of Criminal Justice, 167 Texas inmate deaths were either confirmed or presumed to be caused by COVID in 2020, with another 50 awaiting testing. The agency attributes 25 additional employee deaths to COVID. Much-publicized COVID infestations at some of the larger units contributed to already-severe staffing shortages to drive understaffing at Texas prisons to heretofore unseen levels. Luckily for the agency, prisoner levels dropped precipitously, driven by plummeting intake, as most types of crime along with jail admissions dropped like a stone around the state this spring. Jail populations began creeping back up in the fall, but many court systems are only beginning to hold criminal trials and cases are backlogged.

George Floyd Protests: Nationwide protests over Houston-native George Floyd's killing by Minneapolis police, including large protests in Texas cities large and small across the state. Texas saw protests in places like Tyler, Jasper, and Hondo which the civil-rights movement had bypassed without them. In Austin, peaceful protesters were severely injured by so-called less-than-lethal crowd-control weapons deployed by police. Despite isolated incidents of arson and property damage, mainly in Austin and Dallas during the final weekend in May, the overwhelming majority of protests in Texas were peaceful. Journalists starting with Texas Monthly's Michael Hall quickly realized George Floyd was from Houston, a friend and peer of DJ Screw, and a potential victim of corrupt Houston narcotics cop Gerald Goines, who lied about informants and has had hundreds of his old cases, including Floyd's, called into question. State Rep. Senfronia Thompson  of  Houston has filed the eponymous George Floyd Act, ensuring his death remains central to public debates around policing in his home state into the new year.

Brian Manley Under Fire; Renee Hall Goes Down: In April, a month before George Floyd died in Minneapolis, more than two dozen community groups called for the firing or resignation of Austin police Chief Brian Manley after police shot an unarmed man named Mike Ramos based on a policy Manley personally overturned regarding shooting at moving vehicles. The episode surfaced an array of complaints against the sitting police chief, mobilizing groups which would later work together over the summer on budget issues and related topics. But when the smoke cleared from the summer protests, it was Dallas' police chief Renee Hall who resigned while Manley and his patron, city manager Spencer Cronk, spent the entire second half of the year within the crosshairs of at least half the city council, which issued a unanimous "no confidence" vote criticizing the chief and his leadership in June. A few weeks later, Just Liberty and the Austin Justice Coalition issued this commemorative jingle to remind people of the city council's vote:

Houston flirts with reforms, then waits; SA and Austin activists seek civil-service repeal: Houston had some of the largest protests in the country, including one with more than 60,000 people at which the mayor and police chief participated. The Mayor appointed a task force to study policing issues, which soon came back with detailed recommendations. The Mayors response was to increase the police department's budget and then ... crickets. Meanwhile, in both San Antonio and Austin, independent advocacy groups that grew out of this summer's protests have launched petition drives to formally hold elections on whether those cities should pull out of the "civil service" framework in Ch. 143 of Texas' Local Government Code. If they win, the playing field over police accountability would shift irrevocably. But just the fact that this has become contested terrain to a certain extent impacts the power dynamics surrounding police union politics in large Texas cities. The new book, Greedy Bastards, by the former San Antonio City Manager Sheryl Sculley, demonstrates that elite opinion about police unions is changing in addition to all the grassroots ire expressed in the streets. Whether that translates into tangible change is this generation's responsibility.

Austin Budget Cuts: In the wake of the Mike Ramos protests, which in Austin morphed into the George Floyd protests, the city of Austin restricted the Austin PD budget for the first time in decades, including a 4.6% cut derived mainly from delaying cadet classes while the department's training curriculum undergoes a soup-to-nuts revamp. The City Council suggested spinning off other aspects of the department, including forensics, the 911 call center, and potentially the Internal Affairs Division. The Council created a task force to reconsider certain other aspects of local policing, including the future of mounted and K9 units. Even now, though, some of these gains are being undermined while most changes recommended have yet to be implemented. The decisive battles will all come in the new year.

Murder spikes; other crimes dip: As the nation's economy waned this spring, an unusual crime trend emerged: murder spiked while other types of crime, including both violent and property crime, plunged as the streets emptied and large portions of the public began to work from home. In response, everywhere, opponents of criminal-justice reform attributed these spikes to whatever recent, local policies they didn't like: In Austin, murders from the spring and summer were  blamed on the city budget which took effect in October. In Houston, local officials blamed a comparable murder spike on misdemeanor bail reform. In Dallas, the mayor would like to blame the murder spike on the outgoing police chief, since she's leaving, anyway. This pattern played out in state after state, with reform opponents pointing to increased murder rates as an excuse to roll back whatever recent, usually small local gains their enemies might have made. (Indeed, the blame-the-locals tactic was already being used before the first US COVID shutdowns.) Usually, there was only a tenuous link between the despised policies and murder rates, if critics bothered to draw one at all. While such rhetoric may have had political implications, it's likely that, in the coming years we'll come to understand that, just as the reduction in homicides in recent decades was an international trend not directly attributable to any narrow local development, the murder increase of 2020 is (at least) a nationwide phenomenon. Grits can't find sufficient 2020 international data on murders (yet) to tell if the US trend holds true in other countries. But reports from large cities in other states show that Texas' increases aren't some isolated trend.

Governor Abbott Embraces His Inner Demagogue:  What Austin did was significant, if hardly radical. And Texas' murder increase is rightfully concerning, even if Grits finds alarmist rhetoric unhelpful and the city-by-city blame game a little silly. Gov. Greg Abbott's response, however, has became increasingly unhinged from any reasonable interpretation of real-world public-safety facts. Weirdly, he held a press conference in Fort Worth declaring Cowtown's approach to policing was superior to Austin's. But if Austin's murder rate were as high as Fort Worth's, we'd be at double the current total. Why should Austin emulate Fort Worth, exactly? For the alleged crime of not copying cities with worse outcomes, Gov. Abbott first threatened to freeze Austin's taxes in response to the new budget, only to face backlash from conservative constituents who'd like their own taxes frozen,  thank you very much. Then he suggested de-annexing portions of cities that "defunded the police." Finally, he suggested the state might take over the Austin Police Department and operate it through the Department of Public Safety, despite the fact that APD officers make more than DPS troopers or even Texas Rangers. None of this seems very realistic to your correspondent, though I'm told some big Republican donors are pushing these ideas behind the scenes. OTOH, the Governor is angrily lashing out at Austin, which is never a good thing, and eventually some of the ideas he throws at the wall may stick. One can certainly tell Abbott wants to punish Austin for its budget, which can't be good, even if the punishments suggested so far seem ... er, uh ... ill considered.

Texas prison population plummets: In the biggest story nobody's paying attention to, whether due to COVID, declining crime, county court backlogs, or other causes, Texas' prison population this year reached levels unseen since the mid-'90s, allowing TDCJ to shutter several additional units. A dozen years ago, one in 22 Texans were in prison, in jail, on probation or on parole. I re-calculated that number this week: We're now at one in 62. There's still a long way to go, and nobody's stopping, but that's not an insignificant change in a year with not featuring a lot of high points.

Wednesday, December 02, 2020

Policing protests, K-9 units barking up wrong tree, the 'toothless' agency regulating Texas cops, and other stories

I've been working on a larger project and ignoring the blog a bit this week, but here are a few odds and ends that deserve Grits readers' attention:

TCOLE Sunset coverage. The Houston Chronicle published a nice story on the scathing Sunset report on the Texas Commission on Law Enforcement, the agency that licenses and regulates Texas police officers, jailers, and 911 operators. "[I]n Texas," declared sunset commission staff, "the regulation of law enforcement is 'by and large, toothless.'” See related Grits coverage here, here, and here.

Policing Protests. In the wake of news that 11 Austin police officers were disciplined for abusing protesters over the summer, Grits spent a little time recently looking at best practices research on policing protests and crowd management, and wanted to leave some relevant links here for future reference:

Barking up the wrong tree. The Washington Post has an excellent article on the use of attack dogs by police which identified "37 video-recorded K-9 attacks that have surfaced over the past three years across the country, many showing people under attack even though they are unarmed, have surrendered to police, are already handcuffed or are innocent bystanders." Grits doesn't mind the use of dogs for their olfactory talents, but the use of attack dogs is problematic. In Texas, we've seen episodes where suspects were shot and killed for defending themselves against an attacking dog. But when a biting dog is attacking you, who wouldn't fight back? My better half has been looking at dog-bite cases in Austin and found dozens, most of which were never publicly reported. More on those cases a little later down the line.

Getting wonky on no-knock warrants. For Grits' reading pile, here's a lengthy academic article on no-knock warrants that I want to consume before the Texas Legislature considers legislation on the topic next spring.

Changing of the guard. Michael Barajas at the Texas Observer has a short profile of Fort Bend County's first black Sheriff since Reconstruction, who will take office in January. The extent to which this is a conspicuous development given Fort Bend County's history can scarcely be overstated.

Tuesday, November 24, 2020

Badcopping, pretrial diversion for profit, getting around Miranda, and other stories

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

Corruption, thy name is 'pretrial diversion'. A Texas DA in the Panhandle charged illegal pretrial diversion fees to criminal defendants then gave huge donations to local charities, the Houston Chronicle's Eric Dexheimer reported recently. He also maxxed out charges to defendants who won't play ball. E.g., they charged drivers coming back from Colorado with a few marijuana gummies with first degree felony charges, comparable to if they'd murdered someone. Local defense lawyers and his election opponents cried "foul," but couldn't stop it.

Aggressive cop resigns in lieu of discipline. In New Braunfels, a black driver was pulled over for a "dirty license plate" and tazed twice by a super-aggressive police officer who was later allowed to resign in lieu of discipline. N.b., how the driver's tone changed when the second officer arrived and began addressing him respectfully. This cop escalated the conflict needlessly and deserves blame. But it's also likely he was trained to do exactly what he did. It tells us that the terms of debate over these topics are changing that a cop would lose his job over this in Texas: I've seen far worse cases where officers go right back on the force. This recent episode in Schertz comes to mind.

New civil rights litigation. A civil rights suit alleging excessive force has been filed against Harris County Constable Precinct 7 over an episode last December when a black driver was beaten, tazed, and falsely accused of assaulting a peace officer. Meanwhile, in Fort Worth, police have been sued over Atatiana Jefferson's shooting, an episode which remains a raw, open nerve in that community.

Getting around Miranda. Recently on Twitter, I'd argued that the US hadn't had significant, systemic police reforms since the progressive movements of the 1930s, and a lawyer chimed in to ask, what about Miranda and 4th Amendment jurisprudence? Well, that jurisprudence is mostly about creating exceptions. For example, here's a recent Texas Court of Criminal Appeals case in which a defendant was questioned without a Miranda warning but none of the evidence was suppressed. That's the problem with policing reforms from the second half of the 20th century. Nobody was willing to impose a true, hard stop on bad practices.

TDCJ loses contract over not paying inmates. Earlier this year, the Texas prison system came in as the low bidder on a contract being considered by the city of Houston. The city council rejected them because they don't pay inmates, and put the contract out for a rebid insisting that workers must be compensated. TDCJ did not bid the second time around.

Hundreds of death in custody reports delayed. A review of Texas' death-in-custody records by KXAN-TV found examples of hundreds of agencies filing late or incomplete reports. This data isn't great; agencies routinely fudge some of the inputs to imply reduced accountability (see this example out of Austin). But Texas' law on this is light years ahead of many other states. It'd be an even stronger resource if the Attorney General cracked down on agencies that didn't comply.

Joe Gamaldi: A bad cop's best friend. That's how this Texas Monthly story referred to the president of the Houston Police Officers Union. This is a good backgrounder as Houston prepares for a big fight in the coming year over its police-union contract.

You're wrong about gangs. Over the weekend, I listened to the episode of the You're Wrong About podcast regarding gangs and found it interesting and useful. Here's the show notes page including links to all their sources. Some of the biker groups are interested in legislation reining in Texas' gang database next year, and this discussion was a good primer for that debate.

Private company makes police policy. Check out this article from Mother Jones on Lexipol, a private company that writes generally regressive policies for police departments.

Fort Worth police pull rug out from under Tarrant DA on no-pot-arrest policy

What the hell is happening in Fort Worth over marijuana enforcement? Today brings two contradictory news reports on the topic from Cowtown.

First, the Dallas News reported on Tarrant County District Attorney Sharen Wilson's new program, announced Monday, for Class B pot cases. Wilson is offering to dismiss charges if someone passes a drug test for three months running.

But seemingly in response to the prosecutor's announcement, yesterday evening the local NBC affiliate ran a story announcing that:

Fort Worth police are no longer arresting or citing people caught with small amounts of marijuana, a department spokesman said Monday.

“We have only been seizing the marijuana,” said Fort Worth police Capt. Mark Barthen. “We are also not issuing citations in lieu of arrest like some jurisdictions.”

The change in policy was due to “issues with testing,” Barthen said.

More people were arrested for pot in Fort Worth in the last year (3,750 people) than for any other charge. That's more than ten people per day. If the FWPD follows through on this policy, DA Wilson before too long won't have any more pot smokers to drug test.

These stories evince a split in local law enforcement, with the DA wanting to keep cases alive without proving them, while the police are less inclined to spend a lot of time on cases they can't prove that have little public safety benefit. I betcha Fort Worth isn't the only jurisdiction where officials disagree on how much to prioritize pot arrests, even if it doesn't often come out this publicly.

RELATED: Hemp law radically reduced pot prosecutions in Texas: Don't go back.

UPDATE (12/2): FWPD has now flip flopped and says they're still arresting people for pot, according to a reporter from KERA. Since the DA can't prove charges w/o testing, I wonder how that works? Do they only "divert" people who don't have a lawyer to advise them?

Monday, November 23, 2020

On the link between murder rates and violent crime trends: What happens when there isn't one?

Murder rates are up this year in Texas' big cities and across the country, but other (much more common) types of violent crime remain down.

Grits has puzzled over this trend. We usually think of murders as a subset of violent crime - the outliers with worst-case outcomes. Criminologists frequently treat murders as a proxy for other violent crime that may be less well documented. (Rapes or robberies may go unreported, but it's harder to hide dead bodies.) This year, though, those traditional correlations flew out the window. As Jeff Asher and Ben Horvitz wrote in the NY Times this summer:
There have been only four years since 1960 (1993, 2000, 2002 and 2003) when murder increased but overall violent crime decreased nationally, and the increase in murder was small in each of those years. The average absolute difference between the national change in murder and violent crime since 1990 has been just 2.2 percent, so a big increase in murder nationally while violent crime falls is almost unheard-of.
So we're in uncharted territory. If murders go up but other categories of violent crime go down, are we seeing a big-picture trend of more violent crime? Grits has wondered if something else may be happening.

Strangely, police have been solving homicides at ever-lower rates for quite some time now. (Reported the Houston Chronicle, "Homicide detectives [in Houston] solved 89 percent of homicides in 2011. As of May, that number had fallen to 49 percent.") So even if murders were declining before 2020, it wasn't necessarily because the cops did a great job. Moreover, if low clearance rates corresponded to lower murder totals in years past, it's hard to blame the spike this year on police solving fewer crimes.

What else might explain the trend? As hospitals struggle with ICU capacity over COVID, it's possible gunshot victims are losing the competition for resources and dying at higher rates. Earlier this year, a trauma surgeon in Philadelphia identified this tension in a New York Times column, but I haven't seen any follow-up analysis to tell us if that might explain all or part of the rising murder rate. Part of me thinks not. In New York and Chicago, total shooting incidents increased, not just murders. That said, I'm not sure hospitals would admit it if gunshot victims died more often because of ICU shortages.

Regardless, something odd is happening. In a year with so many anomalous occurrences, though, it may be impossible in the near term to figure out just what it is.

Lower Texas prison population numbers stem from declining arrests

Grits has remarked recently on the eye-popping reduction in the Texas prison population this year. But this year's declines aren't the only un-anticipated decrease at play.

In recent years, the Texas Legislative Budget Board's projections for TDCJ's population have been consistently overstated. From their most recent projection document:

So it's not just that the prison population declined this year, it's been trending lower than projected for some time. What's causing this decline? Fewer arrests, of all types, has a lot to do with it. Arrests of adults have been declining for years, with a particularly large drop seen in 2019. Only drug arrests continued to increase over this period, and those only modestly (the one-year decline in drug arrests in 2019 almost certainly related to jurisdictions ceasing marijuana prosecutions because of the new hemp law):

So it's not that sentencing practices have changed (except for property crimes, where the offense thresholds were updated in 2015 to account for inflation). Fewer people are being roped into the system on the front end, with the biggest reduction in arrests for violent crime. Arrests of adults declined 14.8% from 2015 to 2019, and for juveniles went down 17.5%, reported LBB. And that was before arrests declined even more this year thanks to COVID. 

Saturday, November 21, 2020

Understaffing at Texas prisons reaching dangerous levels: #txlege must close, consolidate units

Whether due to COVID or some other reason(s), vacancies among prison staff at the Texas Department of Criminal Justice have reached disturbing levels, according to this report from the agency. Thanks to Keri Blakinger of the Marshall Project for passing it along. 

Regular Grits readers know TDCJ has chronically short staffed several units in recent years, but the number with serious shortages is higher than any time during the two decades your correspondent has been tracking the agency. 

In the past, when correctional officer (CO) vacancies would approach the ~4,000 mark, agency leaders began talking about a crisis. Today, vacancies are up to 5,500 systemwide, with 14 units reporting more than 40 percent of positions unfilled. If the press and public weren't distracted by eighty 9/11s worth of COVID deaths, this would be headline news.

The only saving grace: TDCJ has seen prisoner levels plummet this year to 21st century lows. But unless the agency closes more units and consolidates staff, that won't solve the understaffing problem.

We still don't fully understand the cause of the prisoner drop at TDCJ and whether it should be viewed as sustainable. For a while, TDCJ stopped taking prisoners from county jails. But those backlogs have been eliminated. Blakinger hypothesized that a reduction in parole revocations might explain it, but the numbers didn't bear it out.

Another hypothesis: Court systems slowed and fewer trials meant fewer plea bargains, meaning it's possible many more cases are awaiting adjudication than normal. Whether that means there will be a surge in admissions at some point in the future is anybody's guess.

Alternatively: Radical crime drops were reported this spring and, even though murder rates have reportedly increased over the summer, many types of crime may have continued to be dampened by the pandemic, including some lesser violent offenses. Or, the change may result from police enforcement patterns: Perhaps they're not performing as many hand-to-hand drug sales, for example, or maybe it relates to the reduction in public contacts at traffic stops thanks to reduced traffic? Perhaps police are initiating contacts with the public less frequently because of the virus. Who knows? It's been a crazy weird, year.

In a red-ink budget year, now's the time for the Texas Legislature to double down on these successes and close another half dozen prison units. (The state has closed 11 since 2013.)

As insurance against the possibility that prison populations might go back up, it'd be best if they combined such cuts with additional decarceral policies: One that comes to mind as low hanging fruit might be to eliminate testing for marijuana for probationers and parolees. In the wake of Texas' hemp statute, arrests for pot possession have fallen sharply statewide. Few people think marijuana use justifies imprisonment (possession of small amounts is only a misdemeanor), so there's no good argument that people under supervision should go to prison for it. Probation and parole revocations are a significant portion of TDCJ admissions, and even a marginal reduction in those categories would help sustain these lower prisoner levels.

Make Grits Philosopher King and there's much more that could be done. But it's perhaps far-fetched to imagine Texas will see significant criminal-penalty reductions in 2021. Already, dozens of new crimes and penalty increases have been filed as bills at the Texas Legislature. And #cjreform efforts at the Lege completely stalled out in 2019. Certainly, Grits sees little prospect for drug-penalty reductions like we've seen in Oklahoma, Utah, Oregon, and other states. And the Lege seems to have abandoned efforts to rein in technical probation revocations. Except for a handful of policing bills (e.g., the Sandra-Bland statute on Class C arrests and the George Floyd Act), and maybe some of debtors-prison stuff, not much #cjreform legislation enters the 86th session with significant momentum.

Regardless, at this point, it's not an exaggeration to say Texas prisons are dangerously understaffed and nothing the agency has done for the past decade has caused staffing shortages to abate. Moreover, COVID makes prisons an even less inviting and more dangerous workplace (certainly the virus is a greater risk to CO's lives, by far, than prisoner violence).

Closing several more units - ideally targeting remote, rural units which are hardest to keep staffed - really is the only rational management move here, and it should have been done long ago. Past prison closures failed to take into account staffing shortages, closing well-staffed units and leaving these rural outliers to fester. Now, those poor decisions are coming home to roost.

Thursday, November 19, 2020

On police oversight and union obstructionism: Why Houston and SA oversight systems are terrible and remembering that time the police unions sent Nelson Wolff a dead rat

Two items related to police oversight merit Grits readers' attention:

First, the Kinder Institute at Rice University analyzed police oversight systems in Texas in a new report. The ones in Houston and San Antonio stood out as being especially worthless. San Antonio's review board reports to the police chief; Houston's reports to the mayor. Neither are achieving their missions and provide little if any added value when it comes to holding police accountable or promoting policy changes to reduce police violence.

They found that Fort Worth, Dallas, and Austin more closely align with national best practices on police oversight. All three have been recently revamped. Fort Worth created a police monitor with no board; Austin and Dallas have hybrid models with both police monitors and review boards, though neither has yet gotten up and running fully.

See initial coverage from the SA Express News and Houston public radio and an op ed from the authors

As always, budgets reveal underlying values: The SA and Houston boards have $0 budgets; Fort Worth and Dallas' monitors have budgets in the mid-six figures; after a recent expansion, Austin's Officer of Police Oversight has a $3.4 million budget, Kinder reported.

The document declines to recommend which model is best, in part because the systems in Fort Worth, Dallas, and Austin were too new to be evaluated. But they found those three oversight systems were much closer to national best practices than SA or Houston.

Grits would suggest Austin's system has accomplished the most so far, but it's hard to know whether to attribute that to the structure or the fact that they enjoy FAR more staff and resources. Fort Worth's (brand new) monitor might do more if their budget were increased five fold.

Anyway, the document provides a good, much-needed introduction and overview to police oversight systems in Texas. I learned a lot from it.

Meanwhile, former San Antonio City Manager Sheryl Sculley has an interview in Texas Monthly promoting a new book she's written about negotiating the SA police contract with the union, whom she dubs "greedy bastards." I've ordered the book and may review it later, but the interview is fascinating. For starters,  she emphasized that police unions' power in Texas is an outlier:

The police and fire unions, in San Antonio and elsewhere in Texas, are a powerful political force. Thanks to laws passed by the legislature in the 1980s, these unions are allowed to endorse political candidates, contribute money to them, and provide lots of volunteers for their campaigns. As a city manager for thirty years, in places like Phoenix and Kalamazoo, I’d never encountered a situation where police officers and firefighters could be this actively involved in picking the officials who would decide their compensation and discipline.

Sculley described some of the dirty tricks employed by the union:

It’s a classic protection racket, and it can get ugly. When Nelson [Wolff, the county judge for Bexar County, which includes San Antonio] wouldn’t take political contributions from one of the unions, they sent him a fancy gift basket with a dead rat in it. During negotiations on the police contract, some officers would tail members of our negotiating committee when they were driving, in what we assumed was an effort at intimidation.

And she criticized the civil service rules in terms which will be familiar to any regular Grits reader:

Under terms of the police contract, disciplinary actions are subject to strict limitations. They can be appealed and many are. Often suspensions are reduced to written reprimands. When an officer is accused of misconduct, he gets 48 hours to get his story straight before being interviewed by internal affairs investigators. No civilian suspect gets that. The police chief cannot base his discipline on that officer’s entire personnel file, or it will get overturned in the arbitration process. If the officer hasn’t made the same mistake within two years, his record before then is off-limits. We might have a five-page list of infractions in the officer’s file, and less than a half page of that is admissible in arbitration.

If the officer is successful in concealing his or her misconduct for a while, and the chief doesn’t learn about it within 180 days of it happening, he’s not allowed to impose any disciplinary action. That’s what happened with the officer who served a shit sandwich to a homeless man.

We’ve fired officers for beating up unarmed suspects, having sex with suspects, and when the officers have appealed, we’ve been forced to take them back.
I've heard these sorts of stories for years behind the scenes, but never expected a former city manager to put them down in a memoir! Can't wait to read her book.