Friday, January 31, 2020

Confronting racism at Austin PD, ↓ TX solitary numbers may be an illusion, driver license suspensions not enhancing collections, Big-D bail reform collapses into confusion, and other stories

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

Racial bias and disparities at Austin PD
A new report from the Austin Police Monitor's office demonstrated that black Austinites are disproportionately affected by police stops, searches, and arrests. The disparities are quite large, but Austin PD doesn't provide the data needed to drill down and discover particular officers engaging in discriminatory practices. The report comes in the wake of an assistant chief stepping down in December after a whistleblower revealed racist texts and emails sent to other departmental brass over many years. The city council ordered a review of internal officer communications in response that may reveal more racist officer communication, which has the police union mad as a wet hen. The Police Monitor's report provides a less personal, more systemic assessment of racism in the department, looking beyond individuals' points of view to the impact of departmental practices. Good for the Austin city council for taking this on.

Austin police chief orders arrests for crimes cops can't prove
In other Austin PD news, Grits finds bizarre Chief Bryan Manley's position that the department will continue to arrest and cite people for marijuana possession after the City Council forbade them from doing the lab testing to prove THC levels were above .3% and the substance could be distinguished from hemp. Isn't this the police chief openly saying he has ordered his officers to arrest people when they cannot prove the elements of the crime? To my attorney readers: What legal mechanisms exist to restrain police who openly choose to make wrongful arrests that prosecutors universally dismiss? IANAL, but it seems to me police don't have authority to arrest when there's no probable cause to believe a crime was committed. And since marijuana and hemp come from the same plant, they're indistinguishable without the test.

It's also worth mentioning, bringing the subject back around to the prior item, that marijuana enforcement generates even higher racial disparities than other Austin PD activities, reported the Austin Chronicle:
Data from APD shows that in 2019, a total of 432 citations were issued for marijuana offenses. Of those, 364 went to Black or Latinx Austinites, while just 64 went to white residents – despite similar levels of marijuana use among all three populations. So stopping enforcement of low-level cannabis offenses (see "Council Unani­mous­ly Votes to End Low-Level Pot Enforcement," Jan. 24) could reduce the disproportionate impact arrests and citations have on Austin's Black and brown residents. 
"It's outrageous for APD to be pointlessly writing these worthless pieces of paper," Emily Gerrick, an attorney with the Texas Fair Defense Project and an architect of the POM resolution, told us on Monday, Jan. 27. "Resources could be much better spent trying to address those types of racial disparities in the first place, such as with anti-implicit-bias training."
Competitive DA primaries in Texas
The Appeal compiled a list of competitive DA primaries in Texas. Harris, Travis, and El Paso counties are the big prizes. See a related spreadsheet.

Revenue collection not enhanced through driver license suspensions
The suspension of drivers licenses for nonpayment of traffic fines through the OmniBase program does not correlate with higher payment rates, found an analysis by Texas Appleseed and the Texas Fair Defense Project. The program "has a profound negative impact on people already struggling financially, driving them into a cycle of debt and poverty by taking away their ability to legally drive." The groups encouraged cities and counties to stop using OmniBase altogether, suggesting payment rates may be unaffected.

↓ Texas ad seg numbers may be an illusion
The Texas Observer's Michael Barajas took a deep dive into solitary confinement issues. Texas' numbers of prisoners in solitary, dubbed "ad seg" in TDCJ parlance, has declined by more than half, according to official figures. But Barajas' reporting raises the possibility that some of that reduction stems from reclassifying prisoners, not changing the conditions they live under:
as the Texas Tribune reported last year, some of TDCJ’s new programs may actually mask the extent to which the state has reformed its solitary confinement practices. Inmates moved out of solitary and into a mental health diversion program still live in conditions that seem indistinguishable from solitary; prisoners continue to be confined in small spaces and have limited time outside their cells. Regardless of these similarities, Texas doesn’t count its participants as being in isolated housing.
Dallas bail reform collapses into confusion
In Dallas, D Magazine has the story of how bail-reform their has collapsed into confusion. Was glad to see the article critique the same, ill-conceived op eds from the Dallas News at which Grits lashed out in this post. Here's  how the author, Shawn Shinneman, summarized the flaws in the DMN editorial board's analysis:
That editorial is inaccurate. It suggests we have true bail reform in Dallas County. We don’t. It insinuates Creuzot’s wish-list reforms are in place. For the most part, they aren’t. It also conflates a violent offender with the type of defendant bail reform is targeted at: poor people who are accused of a nonviolent offense, whose lives are upended because they don’t have money to post bond.
Long-time ex-San-Angelo police chief indicted for bribery
Timothy Ray Vasquez, who was police chief in San Angelo from 2004-2016, has been indicted in federal court for allegedly taking bribes related to the purchase of an $11 million radio system. Most of the alleged bribes were funneled through a wedding band called "Funky Munky" the chief played in on the side.

Reentry travails in Tyler
In The Tyler Loop, Jennifer Toon has an excellent essay on the travails of reentry given limited treatment resources and lack of halfway houses outside of the big population centers.

Economists economisting on crime
See the lineup for the Texas Economics of Crime Workship at Texas A&M, organized by Prof. Jennifer Doleac. As regular readers know, I consider economists' analyses of crime generally flawed and harmful. But thankfully, as in this workshop, most economists analyzing criminal-justice issues aren't utilizing economic principles, they're just doing applied math.

Flawed forensics chronicled
Recent coverage of flawed forensics deserves readers' attention:
1994 Crime Bill revisionism
Doug Berman says the 1994 Crime Bill wasn't as bad as you think and maybe even did some good, from the vantage point of 20/20 hindsight. But it still "fostered and reinforced tough-on-crime attitudes in Washington and among state and local criminal justice officials that contributed to historic growth in national prison populations." That's the most important takeaway, IMO. These revisionist analyses are fine, but here's the thing: Federal crimes are a small part of the system, so the biggest impact of the 1994 Crime Bill was political: It galvanized bipartisan support for mass incarceration that led to so-called liberal Democrats running political ads like this one:

Wednesday, January 29, 2020

DNA mixture math errors discovered in 2015 weren't the first

Grits this week revisited the 2007 "Bromwich report" regarding what then was the Houston PD crime lab while researching DNA-mixture evidence issues and realized something I hadn't understood at the time - or perhaps just never connected the dots: Errors calculating DNA-mixture probabilities were at the center of the years-long crisis that engulfed the Houston crime lab's DNA section for most of the aughts.

Readers will recall, in 2015, we discovered that all Texas crime labs were miscalculating DNA-mixture probabilities - in one case, a sample jurors were told matched one person out of a billion really matched one out of 50. Well, the same thing was happening at the Houston crime lab. Check out this chart from the Bromwich report identifying cases where DNA analysts vastly over-estimated the probability ratios:

So in Houston, they discovered the crime lab was miscalculating probabilities in the aughts, updated the math, then in 2015 discovered that math was wrong and had to update it again. Wow! This '07 comment from Bromwich about the HPD lab would have applied equally to every Texas crime lab as recently as 2015:
It is clear that DNA analysts in the historical Crime Lab ... did not fully understand the scientific basis for calculating frequency estimates from DNA profiles obtained from evidence samples and that they were not trained in the methods of properly calculating statistics associated with DNA mixture profiles and partial DNA profiles.
Notably, the method Texas labs were advised to shift to in 2015 - "probabilistic genotyping," most commonly using equipment/software from a company called STR-Mix - lately has itself come under fire. A federal judge out of Michigan recently excluded such evidence in a Daubert hearing. So it's possible DNA analysts will need to re-do their math again.

Returning to the Houston PD crime lab example, these are in many cases radical downward adjustments. From one in 6.3 million to one in 30? From a one in 2.9 million chance to one in 5? Would juries have convicted if they'd heard the lower numbers? I wonder if other crime labs were using the same method as HPD's during this period?

Of the cases in this chart, Franklin Alix was executed despite DNA testimony in his case having been declared unreliable. Only Josiah Sutton was ever exonerated; 11 remain incarcerated. By all accounts, the criminal-defense bar in Houston failed to step up in many instances, leaving most of these folks un-or-poorly represented.

It's highly likely there are more actually-innocent people on that list, but we'll never know. The DNA lab's other big problem was that it had a leaky roof and most of the historical DNA evidence was destroyed and couldn't be re-tested.

See prior, related Grits posts:

Bail reform saves lives, "The Ogg Blog," pay-per-surveillance, and other stories

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

Kim Ogg oppo blog launched
The Justice Collaborative has launched The Ogg Blog, providing background on various criticisms vs. embattled Harris County DA Kim Ogg as she faces a bevy of opponents in the coming March primary. Grits is grateful; I'd intended to compile a long, greatest-hits post for Ogg as a bookend to this one about Travis County DA Margaret Moore, so they've saved me the trouble.

Bexar County Jail deaths argue for bail reform
At the Texas Observer, Michael Barajas examines recent deaths in the Bexar County Jail, a topic which  led the Express-News recently to call for an audit. At root, the problems implicate a broken bail system that incarcerates low-risk defendants because they don't have money: "Don’t lose sight of the broad strokes," admonished the Express-News. "Three defendants in their 60s. All charged with criminal trespass. All given nominal cash bonds that kept them incarcerated pretrial. All dead in our jail. All of this in the span of about a year." But local judges, including one who ran a bail-bond company before ascending to the bench, have consistently opposed any move toward reforming bail processes.

To be clear, despite plaintive cries that bail reform will harm public safety, the real reason bail-bond companies oppose reform is all about preserving their anachronistic business model. Continuing to subsidize this industry in the 21st century is akin to subsidizing buggy whip manufacturers in the 20th: Their time has passed.

Fact checking the Governor on homeless policies
PolitiFact fact-checked Governor Greg Abbott on his claims about Austin's homeless. Guess how he fared?

Levin on reducing Big-D murder rate
Marc Levin from Right on Crime appeared on the Point of View podcast to discuss Dallas' plan to reduce its murder rate.

Google wants to begin charging law enforcement for requests for location information and other user data. The big telecoms already do so.

Monday, January 27, 2020

New TDCJ visitation/mail policies punitive and arbitrary

The Texas Department of Criminal Justice is changing its visitation, mail and commissary policies for Texas prison inmates in ways which seem arbitrary and unnecessary.

Let's start with visitation. TDCJ will begin running a drug-sniffing dog past all potential visitors, even children, and deny entry if the dogs alert. If a dog alerts twice, that person will be denied entry permanently.

The move is being billed as preventing contraband smuggling, but that doesn't justify it. For starters, nearly all the contraband smuggling is done by guards, and the biggest problem is the agency can't fire them because they wouldn't have enough people to staff the prisons.

Consider this example from the French Robertson Unit in Abilene last year:
A list obtained by KTXS from the Texas Department of Criminal Justice (TDCJ) said that 51 French Robertson Unit staff members were disciplined and one of those staff members was fired for bringing in contraband between January 1, 2013 to July 3, 2019, a six-and-a-half-year span.
The TDCJ also said that out of the 400 staff members at the French Robertson Unit, the number of contraband disciplines "are below average for disciplinary action and contraband issues as compared to the other 103 state prisons in Texas." 
So one staffer out of 400 was fired for bringing in contraband to the prison, while 51 were allowed to continue working there. And that's "below average" for other units. So it takes a lot of chutzpah for TDCJ to blame families for contraband! That's absurd.

Anyway, why not just run the drug dog past inmates before they go back to their cell, or search them, for that matter, if need be. If you're trying to find contraband, the policy makes no sense.

For that matter, if a drug dog hits on a family member, why not search them for drugs instead of just sending them home? If they don't have drugs, let them visit. Narcotics dogs have very low hit rates (especially compared to, say, explosives-detecting dogs) and in general are about as reliable as a coin flip. But to just send folks away when they hit? It's like they want to discourage visitation more than they want to discover contraband.

Which brings me to another point, if TDCJ is going to use drug dogs in this way, they should record every alert and gather data on false positives. If dogs are alerting when there are no drugs, then you're not preventing contraband smuggling by using them and the whole ordeal is just a waste of time that discourages legitimate visitors.

Changes to mail policy were equally unreasonable and untethered to actual safety concerns. No greeting cards? Really?

And this part seems directly aimed at discouraging letters from children: No stickers or "artwork using paint, glitter, glue, or tape."

In general, "Offenders will only be allowed to receive mail from general correspondents on standard white paper. Mail received on colored, decorated, card stock, construction, linen, or cotton paper will be denied."

Part of this is aimed at getting inmates and families to use their JPay system, but that costs more and bleeds inmates and families financially. Phone rates were finally reduced in Texas, but JPay renews the practice of mulcting incarcerated people's families for the privilege of staying in communication with their loved ones.

If public safety were in any way a concern, maintenance of family ties being a key predictor of success after people leave prison, the agency would do everything in its power to encourage family members to stay in touch with inmates. But they're understaffed and see those communications as a chore they'd like to cut down on, not a central pillar of successful prisoner reentry.

Part of me wonders if this is a ham-handed public relations move, getting in front of major problems with guards smuggling contraband by making a big show of publicly blaming inmate families for it. But that assumes more sophistication and forethought than the agency, whose institutional culture remains stuck in the '90s, generally demonstrates.

Regardless, these changes seem punitive, ill-considered, and even a little mean-spirited. Either TDCJ should reconsider them or the Legislature should change them next year.

UPDATE: Our pal Keri Blakinger with the Marshall Project was in the room when these new policies were announced and forwarded me her notes from the event:
When I first heard about the greeting card ban a few weeks ago, I called the spokesman to confirm and he would not confirm even though officials had already begun telling people. TIFA had known, prisoners themselves had known for weeks, and people kept asking me questions yet - absurdly - TDCJ would not confirm to me. So I showed up at the conference on Saturday in hopes of getting on-the-record confirmation. Here's a sampling of what was said:

The announcement formed the bulk of an hour-long presentation by CID Director Lorie Davis, who kicked off by telling the pretty-full room, "We gotta keep people safe and we gotta help people change."

(This seems to me often at odds with what actually happens but ok.)

"It’s no secret that drugs are bad choices, drugs are one of the reasons why we have the population that we do," she said. "It’s a bad choice to do drugs in the penitentiary."

She said, "We’re committed to fighting this battle," and added, "It’s great that the recidivism rate has come down 10 percent in 10 years that’s great that’s cool but it’s not enough." (unclear not enough what, recidvism decrease or positive action from the agency) 
One of the drugs she railed against coming in was suboxone, which is used to treat opioid addiction. It is easy to dose mail with the water-soluble strips - but it is not something people overdose on and is considered the "gold standard of care."

Despite banning glitter, colored paper and various other things, Davis specified that crayons are still allowed: "I don’t wanna take away a kid’s ability to use crayons and color their mom and dad a picture. That’s important." She stressed the value of staying in touch through mail, saying, "Let's put down our telephones and let's write some cards together." (She meant collectively, not literally offering to chill out with families and write cards, of course.*)
She detailed the creation of a new security precaution indicator (CD) for anyone who catches a disciplinary case relating to contraband (including simply refusing a UA). She says that this won't affect good time, just housing assignments and job assignments - like, those accused of smuggling won't be given janitor jobs.

Anecdotally, what I'm hearing is that the SSIs (porter/janitor-type jobs) are just moving these things around the unit, not necessarily the ones bringing them in - that is, according to all the jail mail I get, largely the guards.

She closed by freaking people out with news of the addition of video visitation at some units. Plans for this add-on were announced in 2018 when they lowered the phone rates. She reassured everyone it would not replace in-person visitation, and was just part of the phone deal. These are the units that will have it: Clements Connally Crain Michael Stiles Wynne Jester Garza Hutchins Montford Travis and Sanchez.

TBH, families still seemed freaked out about visitation - and generally - despite those assurances. She fielded a peppering of worried questions and by the time she closed with a very emotion-laden "drugs are bad," everyone seemed quite concerned.
* Grits' note: She also didn't mean writing cards, which she just announced were banned.

Saturday, January 25, 2020

What do Greg Abbott, Croatia, the Roman Emperor Hadrian, ancient Hebrews, 6th century Greeks, Hammurabi, Elizabeth Warren, and Bernie Sanders all have in common?

"Forgive us our debts, as we forgive our debtors."
- Jesus Christ, The Lord's Prayer

What do Governor Greg Abbott and the GOP-controlled Texas Legislature have in common with Croatia, Rome's openly gay emperor Hadrian, an ancient Hebrew religious celebration, 6th century BC Athenian Greeks, Hammurabi, as well as Elizabeth Warren and Bernie Sanders?

They all implemented (or in the case of the Democratic presidential candidates, want to implement) large debt forgiveness programs that boosted their popularity and helped resolve problems deriving from intractable income inequality.

Starting in Texas, last year the Governor signed legislation to abolish Texas' Driver Responsibility surcharge, eliminating a whopping $2.5 billion in debt for around 1.4 million people, overriding past concerns that doing so would be unfair to those who'd already paid. Governor Abbott has also signed legislation to ban red-light cameras that eliminated penalties for nonpayment of old tickets, not to mention bills to eliminate $1.3 billion in outstanding toll road fines and fees and to pay student loans of peace officers.

But there are all sorts of historical examples of government-funded debt forgiveness programs dating back to the beginnings of government. Hammurabi canceled public debts four times in response to civil unrest, and when he "died in 1749 BC after a reign of 42 years, his successor, Samsuiluna, cancelled all debts to the State, and decreed that all tablets should be destroyed except those concerning traders’ debts."

Famously, in the Bible, "Jubilee" was the term for an ancient, once-every-50-year Jewish tradition celebrated during the first millennium BC in which public debts were forgiven and prisoners and slaves were freed.

In the 6th century BC in Athens, the lawmaker Solon implemented the "Seisachtheia" laws (try saying that three times fast!) which "cancelled all outstanding debts, retroactively emancipated all previously enslaved debtors, reinstated all confiscated serf property ... and forbade the use of personal freedom as collateral in all future debts."

Here are a couple more I heard recently on The History of Rome podcast that Grits began to plow through during my recent surgery recuperation: After defeating Marc Antony in 27 B.C., Octavian (aka, Augustus) burned all debt records from before the battle of Actium, thus wiping out debts prior to the civil war that ended with his ascension to power.

And upon assuming authority after Trajan's death, the Roman emperor Hadrian earned the goodwill of the people by forgiving all public debts, to the amazement and scorn of a disdainful Senate. Despite these spendthrift policies, which also extended to earning the allegiance of the legions through large pay increases, Gibbon recorded that Hadrian's reign constituted "the period in the history of the world during which the condition of the human race was most happy and prosperous."

And of course, there are modern examples besides in Texas. In 2015, Croatia engineered debt forgiveness including debt to banks, telecom and utility operators for its 60,000 poorest citizens in an effort to give them a fresh start.

Now we can add Sanders and Warren's plans to forgive student-loan debts to the list. Although that was the newshook that made me dig up these historical analogies, Grits doesn't want to get too bogged down in the pros and cons of that proposal. I probably agree with it; maybe you don't; this isn't the place to debate why. Obviously, this blog has been far more concerned with eliminating criminal-justice debt, which is something I think about quite a lot.

These massive debt forgiveness campaigns were all, in a sense, unfair to those whose debts weren't forgiven. Certainly, in the examples from ancient Judea and Athens, slave owners surely were unhappy to watch their property walk free. But in the larger scheme of things, these programs were also a) economic boons and b) incredibly popular, generating excitement and loyalty among their beneficiaries and boosting the images of their proponents. Indeed, a cynic might contend these policies were undertaken by politicians simply aiming to ingratiate themselves with the public. (OTOH, if you're someone whose debt was forgiven, who cares?)

Leaving politics aside, though, one could also argue that all these examples were necessary correctives to oppressive government debt policies which were also unfair and ultimately, untenable.

Perhaps student-loan debts should only be the first step toward a long overdue 21st century Jubilee.

Thursday, January 23, 2020

Meaty January episode of Reasonably Suspicious podcast: Hear federal judge scold Travis County DA; what's the remedy for school principal convicted based on junk science?; why DPS troopers' chase policy is a bad fit for urban policing, and more

Here's the January 2020 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted by me and Mandy Marzullo. We have a meaty, jam-packed show for you this month.

The Texas parole board is the last hope for Joe Bryan, the Bosque County school principal falsely convicted in 1985 based on erroneous blood-spatter testimony. Travis County DA Margaret Moore can't accept the results in an innocence case. And the Fifth Circuit Court of Appeals says Texas prison guards couldn't have known it was a problem to keep a prisoner naked sleeping in feces and urine for six days. (And really, how could anyone have guessed?)

Bail reform not responsible for alleged repeat-offender monkey in Galveston

Top Stories
Marijuana prosecutions in Texas declined by 2/3 since Legislature legalized hemp. Does anybody besides cops and prosecutors miss them? (2:20)

Home Court Disadvantage
This month, the cases highlighted found defendants and plaintiffs at extreme disadvantage:
  • Joe Bryan (6:16): The Court of Criminal Appeals turned down the former school principal, who was the subject of a major New York Times Magazine/Pro Public investigation by Pam Colloff. Now, it's up to the parole board to free him, if it happens at all.
  • Rosa Jimenez (10:10): Four different judges have found her innocent. But Margaret Moore and the Court of Criminal Appeals don't want her released. Hear audio from a disgruntled federal judge scolding the Travis County DA's office for their handling of this increasingly high-profile case.
  • Trent Taylor (19:02): The Fifth Circuit won't hold TDCJ responsible for what they deemed deliberate indifference that put Mr. Taylor at risk of serious harm because the courts had never ruled that six days was too long to endure such conditions. Infuriating.
The Last Hurrah (25:49)
As always, I'll order a transcript and add it below the jump when it comes back. Until then, enjoy!

Demagoguery vs. pot decrim focused on pretending violent crime will spike

The Austin City Council this afternoon will consider a proposal to forbid spending money for lab testing in user-level marijuana cases. Such testing is required to prosecute cases after the legislature legalized hemp, not realizing Texas crime labs were unable to distinguish hemp from marijuana. As a result, marijuana prosecutions around the state have plummeted. The Austin City Council essentially wants to make that situation permanent in the capital city.

In response, law enforcement has pretended such a move would spur anarchy in the streets, even though these cases haven't been prosecuted for half a year and it's been no big deal. Doubling down on District Attorney Margaret Moore's declaration that failing to prosecute these people would increase violent crime, police brass in Austin are making similar, baseless declarations
Austin police Assistant Chief Joe Chacon said ... the department is concerned about potential ripple effects to violent crime that police fear could come from such a move.
“If we start making it harder for our officers to really take that enforcement action, that emboldens the dealers and people to kind of move into this space to deal narcotics or to deal marijuana,” Chacon said. “When people kind of crowd into that space, we can anticipate that there’s going to be violence that’s going to come along with that. We’ve seen it happen in other areas, and that’s what we’re concerned about for Austin.”
This is silliness. Many states have decriminalized marijuana and 11 have legalized it outright. All of the Chicken Little predictions in those places turned out to be false, and Grits doesn't believe for a moment that Austin will be the exception to the experience of dozens of similarly situated jurisdictions.

Since the Texas Legislature revised hemp laws last year, making it impossible to prosecute marijuana cases without specialized lab testing, pot prosecutions declined by 2/3 across the state, not just in Austin, and the crime wave these demagogues are predicting simply never materialized. Codifying this change into a formal policy won't change that.

Untapped evangelical support for improved prison conditions

When one closely examines the politics of bipartisan justice reforms, support on the Republican side comes from four discrete sources: 1) libertarians (particularly from the Ron-Paul wing of the party), 2) Second Amendment advocates (many of whom enthusiastically support the rest of the Bill of Rights), 3) office-holders worried about budgets (read: fiscal conservatives), and 4) religious conservatives, or at least a faction of them.

This article from Christianity Today examines opinion data from evangelical conservatives and determines that the evangelical base is more supportive of justice reform than both their leadership and average Americans, especially on prison conditions.

Notably, prison-conditions issues have been hard to move forward in Texas because the main advocates for it at the Legislature have been formerly incarcerated folks and prisoners' families. Isolated without a broader coalition, their bills mostly have been stymied. This news tells us there's untapped evangelical support along that vector from which messengers could perhaps be drafted whom Texas' GOP-led Legislature would find more convincing. It would be quite an organizing task, but it also might move the needle.

When Emmett Solomon led the Restorative Justice Ministries Network, he was able to mobilize evangelical support through his vast connections with local church-based prison ministries. But after Emmett passed away a few years ago, no organizers of his caliber have stepped up to fill the void.

While evangelical Christians are more likely than average Americans to support prison reform, reported Christianity Today, they are also less likely to change their vote based on justice topics. My guess is that's because other Culture War issues like abortion, traditional marriage, etc., more fervently animate their zeal on election day. But that doesn't mean evangelical Christians can't be tapped as messengers to support legislation. Judging from this data, many would be pleased to help.

Wednesday, January 22, 2020

Federal judge annoyed with Travis DA for recalcitrance on innocence case

Rosa Jimenez, the Austin babysitter wrongly convicted of murdering a child in her care 17 years ago, is likely innocent and should be released, four different judges (two federal, two state) have now declared, despite a Texas Court of Criminal Appeals ruling to the contrary. But Travis County DA Margaret Moore insists she intends to re-try Jimenez, and with Attorney General Ken Paxton has petitioned the courts to stay her release. At the Austin Statesman, Chuck Lindell recorded part of the exchange:
the judge turned to Travis County officials in his downtown Austin courtroom.
“Is it my understanding that (District Attorney) Margaret Moore is hot to retry this case? Really?” [magistrate Judge Andrew] Austin asked. 
“We are prepared to retry the case and have informed the victim’s family of the potential of retrying the case,” said Beverly Mathews, director of the special victims unit in the Travis County district attorney’s office. 
“Has she read the four different judge’s orders who said they think it’s likely that an innocent woman has been sitting in jail for 17 years?” Austin asked, adding that the now-retired judge who presided over Jimenez’s trial, Jon Wisser, also concluded that there was a substantial likelihood that Jimenez was not guilty. 
“Margaret Moore really wants a retrial?” he asked again, shaking his head. 
“It is my understanding that she is willing to retry this case,” Mathews replied.
Such a trial would not expected to begin for at least a year, she added.
Grits was in the courtroom when this exchange occurred. Judge Austin was visibly surprised, bordering on amazed, that the Travis County DA wanted one last pound of flesh.

Soon after Lindell's story was published (KXAN was the only other media outlet there to cover it), a local criminal-justice reform advocate I know approached Moore about the case. She told him she planned to talk to the victim's family and there was more to the case than he knew.

My question: Is there more than the 4 judges knew, and if so, why didn't her office present that information in court? It's a 17-year-old case, what could they possibly be holding back?

Adding to Judge Austin's annoyance, an attorney for the AG's office (who represents the state in federal court) wanted to bicker with him about a technicality related to ICE holds. But Austin is a magistrate judge who hears immigration cases all the time. He is an in-the-weeds expert on the topic while the AG's lawyer admitted he had not investigated nor studied any of the processes on which he was opining. Finally, the judge gruffly told him to sit down and stop talking.

Judge Austin's order particularly singled out for disapprobation the Texas Court of Criminal Appeals, which had denied Jimenez's writ:
In doing so, it failed to recognize the extent of defense counsel’s errors and the significant reasons the jury’s verdict is not worthy of confidence. The Court of Criminal Appeals’ decision is both contrary to federal law and involved the unreasonable, if not outright incorrect, application of that law. Its decision was also based on several factual determinations that were plainly unreasonable in light of the record before the state court.
This, my friends, is what's known as a bench slapping.

At the state-habeas level, the district court had recommended approving the habeas petition, in part because of the evidence but also because of ineffective assistance of counsel. The latter was alleged because the defense did not put on expert witnesses to counter the team of expert testifiers put on by the state. But her attorney responded that that was because the judge wouldn't approve funds. In an affidavit submitted to the court, he wrote:
During my pre-trial preparations, I met with Judge [Jon Wisser] to ask for additional funds to retain experts such as Dr. McGeorge and a biomechanical expert. I explained to the judge why we needed these experts, and that I did not think that my current team was adequate to counter the State’s case. Judge [Wisser] told me that he had authorized more experts than usual in a noncapital case, and that he would not pay for any more expert assistance regardless of my need. Based on the judge’s ruling, I was forced to work within the constraints imposed by the Court. Ms. Jimenez was indigent, and I could not afford to hire these experts out of pocket.
So in this case, the defendant's inability to challenge what turned out to be flawed scientific testimony from the state was really an institutional failure of the indigent defense system as much as a failure of forensics per se.

Grits mentions this because, although DA Margaret Moore will draw most of the attention on this case because she's the one choosing to keep Jimenez incarcerated, the Texas Court of Criminal Appeals, the trial court in Austin, and really the entire system is culpable for what happened here.

Sunday, January 19, 2020

Margaret Moore's self inflicted wounds

Is it just me, or is Travis County DA Margaret Moore behaving like someone who really doesn't want votes in a Democratic primary? She started out her re-election campaign facing serious criticism on the first item below, but the rest seem like self-inflicted wounds.

Serious criticisms of record handling sexual-assault cases
A lawsuit by sexual assault survivors, supported by Austin firefighters, claims indifference by her office: This is easily the most damaging complaint against her, as one of her principle opponents, Erin Martinson, is running nearly exclusively on this issue and has proven quite formidable. Moore digs the hole deeper, though, by responding defensively on the stump and eliding the core complaints. Here's her written response to the allegations in the Austin Chronicle.

Regressive stance on innocence case
Moore wants to retry Rosa Jimenez, an Austin babysitter convicted of murdering a toddler in her care, despite four federal judges having declared she is likely innocent and should be released. After a federal magistrate judge dressed down the DA's office in open court, expect this to become a growing problem for her campaign. UPDATE: More on this case here.

Out of step with party on pot prosecutions
Moore says she supports pot legalization, but when Austin announced plans to move ahead with a local decrim policy, she hyperventilated on Fox claiming violent crime is rising and it's pot related, without providing specifics. How does she imagine such horse hockey will fly in an Austin Democratic primary?

DA of Death
Moore is the only candidate in the race who supports the death penalty: Not only that, on the stump she goes out of her way to suggest hypotheticals when she'd use it, for reasons I can't grasp. In a general election, or a different county, that might be fine. But in a Democratic primary in Austin, she's not saying things the base wants to hear. If I were her consultant, I'd tell her candidate forums aren't law-school class, stick to describing your record. Grits attended a DA candidate forum held by the Circle C Democrats, who later endorsed Erin Martinson. The crowd responded negatively to Moore's answers on the death penalty question.

Opposition to counsel for indigent defendants at bail hearings
Moore does not support making sure people have defense attorneys at magistration hearings where bail is set, even though prosecutors can be there. A federal judge in Galveston County issued an order requiring attorneys be provided to indigent defendants at that stage, and in Dallas and Harris County, judges ordered hearings within 48 hours if bail was required and a defendant couldn't pay. So, reading tea leaves, when the dust finally settles around bail-reform litigation in the 5th Circuit, there's a strong likelihood providing lawyers at magistration will be mandatory, not optional. Declining to do the right thing until you're forced to do so is a bad look.*

That's a lot of attack fodder available to Moore's two challengers. When the campaign started, Grits thought Moore would be hard to beat. Now, I'm wondering if she'll even limp into a runoff!

*CORRECTION: The original version of this post misstated details of bail-reform orders in Dallas and Harris Counties and has been corrected. See the comment section for details.

Journalists can always find a cop or prosecutor to contradict good-news data on marijuana decrim, but should they?

Society in general, and Texas in particular, is in such a weird place right now when it comes to marijuana policy. A remarkable debate is emerging which really only appears to exist in the minds of reporters and law enforcement types but, in terms of evidence and data, is a one-sided argument.

A recent article in The New Yorker by Matthew Hutson has earned praise for rightly articulating in a publicly accessible way the differences between the two main measurements of crime in the United States and the difficulties of judging crime trends. It's a useful analysis, I recommend you read his article for that alone.

But setting his data discussion aside, the article was framed in what Grits considered an especially odd and unhelpful way. Hutson posed the question of whether legalizing marijuana causes crime to rise or fall, centering his discussion on a study out of Washington state showing that both rapes and thefts decreased in the aftermath of that state legalizing marijuana.

Hutson offered no data from other states showing that legalizing pot caused crime to increase (the studies mostly say the opposite), but instead, to offer counterpoints, he:
reached out to more than seventy-five county sheriffs in California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington—states where recreational marijuana is legal. (It’s also legal in Alaska.) Of the twenty-five sheriffs who got back to me, half said they hadn’t noticed a trend, and the rest were certain that legalizing marijuana had made crime go up.
For some reason, Hutson valued the opinion of the half of sheriffs who said crime went up over the half who hadn't noticed a trend. (What's half of 25, again?) Regardless, he's asking law-enforcement folks whose professional careers have centered around marijuana enforcement to give their views on a politicized question. Placing that on a scale alongside reported-crime trends and pretending it balances strikes me as more of a (weak) journalist's construction than a true debate.

Ask someone in the coal industry whether power plants should use gas or coal and what do you think they'll tell you? That's essentially what you're asking these sheriffs. If Hutson were to investigate further, Grits would bet dollars to donuts the violent-crime data in their counties wouldn't support their claims. It's just the kind of thing cops say to the press. 

I feel like Texans can say with some certainty that the sky won't fall when police stop making marijuana arrests because, after the Legislature legalized hemp and accidentally made marijuana laws de-facto un-enforceable last year, enforcement plummeted and there's been no massive violent crime wave in response. It's just not happened.

We don't yet have any academic study of this odd, natural experiment, but as a practical matter, the end of marijuana enforcement in most of Texas has been a big nothingburger in terms of its impact on public safety. If anything, the change has freed up police officers to focus on other things. But that hasn't stopped local law enforcement from playing their perfunctory Chicken Little roles, nor local journalists from providing them a megaphone. 

Pleased with the less-arrests, less-wasted-police-time, no-effect-on-crime, happier-constituents dynamic the new policy generated, the Austin City Council announced plans to codify the results of this natural experiment by directing Austin police to stop making user-level pot possession arrests altogether.

In response, District Attorney Margaret Moore went on Fox News in Austin and declared, with no evidence whatsoever, that "what we've seen that is alarming is an increase in violent crime that goes along with marijuana or THC distribution." Really? We've seen that? Let's see her data. And doesn't she have an asset-forfeiture fund from which she could pay for testing in cases where she truly believes public safety at grave risk? Methinks Chicken Little doth protest too much.

Anyway, the city council isn't recommending police stop enforcing laws against distribution, only penny-ante misdemeanor possession cases that Moore's office doesn't handle anyway. So this is just demagoguery, using the platform afforded by her office to spread misinformation. 

This is a dilemma facing journalists at both the national and local level. If Hutson had called Margaret Moore, she'd happily have joined the Sheriffs claiming reduced pot enforcement increased violent crime. 

Highlighting statements from public officials that contradict the data their own agencies report promotes a false equivalency, exploiting a weakness in the traditional journalism model. The data should be used to debunk official pronouncements that don't match observable facts, not to balance against them and pretend we just can't know.

Saturday, January 18, 2020

Execution scheduled based on bogus "future dangerousness" testimony

Much attention has been drawn to the example of A.P. Merillat, the Montgomery County DA investigator and TDCAA favorite son who repeatedly overstated the dangers to inmates and staff at TDCJ in the sentencing phase of death penalty trials. But over the years, many different "experts" have played that role, and he's not the only one overstating the "future dangerousness" of capital defendants while understating TDCJ's ability to manage them.

At The American Scholar, Lincoln Caplan described the sentencing-phase testimony against Billy Joe Wardlow, who is scheduled for execution for capital murder on April 29th. He received his death sentence in 1993 for killing an 82-year old man during a robbery when he was 18-years old. Here's what the jury was told about whether Wardlow would constitute a future danger to others in prison:
The most chilling testimony for the state came from Royce Smithey, an investigator for a group that prosecutes felony crimes committed in Texas prisons. If the jury sentenced Wardlow to death, the investigator said, he would be “segregated” and “severely restricted” until he was executed. He would have limited access to prison employees whom he might harm. Solitary confinement on death row would punish Wardlow and protect prison employees from the continuing danger he represented, Smithey testified. But if the jury gave him a life sentence, he asserted, Wardlow would be released into the general prison population with other felony offenders. 
Recently, Frank G. Aubuchon, who was a correctional officer and an administrator with the Texas Department of Criminal Justice (TDCJ) for more than 26 years, reviewed Smithey’s testimony at the request of Wardlow’s current lawyers. Aubuchon wrote, “Mr. Smithey’s multiple falsehoods served to mislead the jury into believing that TDCJ would be completely unprepared to imprison Mr. Wardlow in a secure environment unless he received a death sentence. Based on my decades of experience as a TDCJ corrections officer, administrator, and prison classifications expert, I can say that this is categorically false.” 
But Smithey’s testimony was uncontested at the trial and made a life sentence for Wardlow sound like a serious threat to others. It would give him the chance to harm other people, perhaps even to kill again. The testimony made a life sentence sound like a reward for Wardlow, not an endless punishment.
Not only were Smithey's dire warnings about TDCJ's ability to manage inmates overstated, predictions that Wardlow in particular would pose a danger turned out to be false, wrote Caplan:
In the Wardlow case, the jury wrongly predicted his future: despite the horrendous crime he committed as a teenager, he has become in middle age a trusted, peacemaking, and in many ways exemplary inmate—generous to others on death row, attentive to fellow prisoners and to others he exchanges letters with, and as engaged in the world as an inmate on death row can be who has spent much of the past 25 years in solitary confinement in a tiny cell.
This blog has complained about "junk science" many times over the years. But not all expert witnesses testifying to "junk" wear lab coats. Many of the complaints by the National Academies of Sciences about forensics amounted to critiques of overstated testimony - e.g., declaring they could "match" evidence to a degree of scientific certainty. In reality, these experts were offering subjective opinions - ones based on observation and experience, to be sure, but also infused with a prosecution-centric agenda.

The example of "experts" predicting future dangerousness in Texas death-penalty cases demonstrate that overstated testimony isn't just a problem with the bite-mark or hair-and-fiber folks. And it certainly goes deeper than just a couple of over-zealous testifiers like Smithey and Merillat.

Friday, January 17, 2020

Parole board now Joe Bryan's only hope after TX CCA's shameful rejection of his habeas writ

The Texas Court of Criminal Appeals' rejection of Joe Bryan's habeas corpus writ may rank as its most embarrassing moment since the 1990s when they refused to recognize DNA evidence exonerating Roy Criner. That episode spurred the Legislature to intervene in 2001 to create a vehicle for DNA exonerations. Will their arrogant, unexplained rejection of Bryan's claims earn a similar backlash?

Bryan's case rose to national prominence after two key events: 1) in 2018, the Texas Forensic Science Commission used it to identify flaws in the overstated way blood-spatter evidence is presented to juries, and 2) Pamela Colloff, an already legendary journalist who cut her teeth covering Texas innocence cases, authored a 22,000 word, two-part cover story for the New York Times Magazine elaborating problems with Bryan's case in overwhelming detail.*

Indeed, Bryan's false conviction has become an important case study used to demonstrate problems with past investigative methods. Reported the New York Times:
Lynn Robitaille Garcia, the general counsel of the Texas Forensic Science Commission, said Mr. Bryan’s case had a significant role in inspiring the state to develop a new licensing program for analysts doing crime scene reconstruction. 
“Everyone now recognizes that was unsupportable work, including the expert himself,” she said in an interview Thursday.
This is an example of the Government Always Wins faction on the CCA exercising raw power to assert their own opinion about the best outcome over the rule of law without fear of significant consequence.

Bryan was in Austin when his wife was murdered 120 miles away in Bosque County in 1985, and the flawed forensic testimony used to accuse him at trial has been recanted as junk science. Had they considered the details, it would have been as obvious to the CCA as it was to New York Times Magazine readers that, without that forensic evidence, Bryan could never have been convicted. So any honest evaluation of the evidence would require they grant him relief.

That left only one option for judges in the court's Government-Always-Wins faction if they wanted the case to stand: Reject Bryan's claim without explaining why. And that's exactly what they did.

“It’s disgusting, really,” said a forensic scientist quoted by the Times. “Judges are not in positions to be arbiters of what’s good science.”

Now that the Court of Criminal Appeals has once again shown its colors, the 80-year-old Bryan's only hope of relief is the Board of Pardons and Paroles. He is up for consideration in April, according to TDCJ's website. In 2019, they rejected his parole, despite an exemplary behavioral record in prison, based on the "nature of the offense." But with credible evidence available that Bryan never committed the offense in the first place, combined with his advancing age and the length of time already served, the parole board should finally release Joe Bryan in the interests of justice.

Bryan's attorneys have requested folks write letters to the parole board in support of his release, hoping to get as many letters as possible by the first week in February. On Facebook, they wrote:
We need the parole board flooded with letters of support on Joe's behalf. You can either e-mail one or send a written letter to the options below: 
Mailing Address: Place Law Office
109 S 7th St., Gatesville, TX 76528 
Address your letters to the Board of Pardons and Paroles and please send them by the first week of February!
Bryan's TDCJ number is 00419509; be sure to include it in your correspondence. Alternatively, you can send support letters directly to the parole board. It wouldn't hurt to let the Governor know your opinion, either.

Grits readers, please do this. Y'all know better than most Texans what an embarrassment our Court of Criminal Appeals has been over the years. Don't let their un-elaborated rejection be the final chapter in Joe Bryan's story.

* Grits interviewed Colloff about the case after her article came out.

Thursday, January 16, 2020

On the limits of regression analysis by economists and justice researchers

Since Grits recently issued dire complaints regarding the role of economists in criminal-justice policy, the publication of this statistician's related complaints the following day set off all sorts of wonderful, confirmation-bias-generated dopamine in your correspondent's brain, as well as filling out a more rigorous critique of economists' use of regression analysis only hinted at in my offering. The author, Andrew Gelman, writes about the interdisciplinary use of statistics in the social sciences. In his view:
We’re in a situation now with forking paths in applied-statistics-being-done-by-economists where we were, about ten years ago, in applied-statistics-being-done-by-psychologists. (I was going to use the terms “econometrics” and “psychometrics” here, but that’s not quite right, because I think these mistakes are mostly being made, by applied researchers in economics and psychology, but not so much by actual econometricians and psychometricians.) 
It goes like this. There’s a natural experiment, where some people get the treatment or exposure and some people don’t. At this point, you can do an observational study: start by comparing the average outcomes in the treated and control group, then do statistical adjustment for pre-treatment differences between groups. This is all fine. Resulting inferences will be model-dependent, but there’s no way around it. You report your results, recognize your uncertainty, and go forward. 
That’s what should happen. Instead, what often happens is that researchers push that big button on their computer labeled REGRESSION DISCONTINUITY ANALYSIS, which does two bad things: First, it points them toward an analysis that focuses obsessively on adjusting for just one pre-treatment variable, often a relatively unimportant variable, while insufficiently adjusting for other differences between treatment and control groups. Second, it leads to an overconfidence borne from the slogan, “causal identification,” which leads researchers, reviewers, and outsiders to think that the analysis has some special truth value. 
What we typically have is a noisy, untrustworthy estimate of a causal effect, presented with little to no sense of the statistical challenges of observational research. And, for the usual “garden of forking paths” reason, the result will typically be “statistically significant,” and, for the usual “statistical significance filter” reason, the resulting estimate will be large and newsworthy. 
Then the result appears in the news media, often reported entirely uncritically or with minimal caveats (“while it’s too hasty to draw sweeping conclusions on the basis of one study,” etc.).
Sound familiar? I couldn't begin to count the number of criminal-justice-related news stories I've seen over the years built around that formula. Gelman cast shade on journalists for not interrogating academic research more deeply, but his sharpest message was for economists:
Savvy psychologists have realized that just because a paper has a bunch of experiments, each with a statistically significant result, it doesn’t mean we should trust any of the claims in the paper. It took psychologists (and statisticians such as myself) a long time to grasp this. But now we have. 
So, to you economists: Make that transition that savvy psychologists have already made. In your case, my advice is, no longer accept a claim by default just because it contains an identification strategy, statistical significance, and robustness checks. Don’t think that a claim should stand, just cos nobody’s pointed out any obvious flaws. And when non-economists do come along and point out some flaws, don’t immediately jump to the defense. 
Psychologists have made the conceptual leap: so can you.
There's much more, you should go read it. Gelman also has an earlier essay hypothesizing how economists justify to themselves the fairly obvious contradictions in their worldview that seem self-evident to nearly everyone else listening to them. I enjoyed both these offerings.

Couple Gelman's observation about limits of the methods economists use with Grits' analysis of the limits of the data they're analyzing and the foundations underlying their mathematical pronouncements in the justice realm begin to crumble. As I'd written the other day:
The greater problem with applied math in the criminal-justice realm is the data to which said math is applied. The justice system typically doesn't gather data on the points upon which policy debates often hinge. Rather, it gathers data at the points where different bureaucratic entities interact when dealing with an individual. Cops hand off suspect to the county jail: a record is created. Charges filed by prosecutors on that person: another record is created. Then more, potentially, as prosecutors interact with judges and defense counsel, as those convicted enter prisons or probation, and so on. 
For the most part, data generated from these interactions cannot answer the most pressing questions facing the justice system, such as what causes crime to rise or fall, what causes people to desist from crime, what incentives face various decision makers throughout the process, etc..
Economists aren't policy makers (even if some of them aspire to be). But taken as a whole, their profession allowed, and often encouraged, the misuse of economic theory to justify and bolster the ideological underpinnings of mass incarceration. Before the #cjreform movement looks to economists for further solutions, Grits believes we should demand their assistance in exposing and undoing that harm.

MORE: Wow, the rabbit hole goes even deeper!

Wednesday, January 15, 2020

Sheriff candidate targeted for refusing to train detectives in Reid technique, prioritizing rape victims ... and this is an attack, how?

Until now, Austin PD brass, investigative reporters who studied the case, and Sgt. Liz Donegan all agreed: Donegan was removed as head of the Sex Crimes Unit in 2011 because she insisted on following the FBI Uniform Crime Report's definitions on whether a rape case is "cleared" while APD brass wanted her to fudge the numbers to boost the clearance rates upward. Regular readers will recall the scandal at the Austin PD, first reported on the national podcast, Reveal. Chief Bryan Manley portrayed the incident as a policy disagreement that was resolved with her removal.

When she was gone, clearance rates for the unit predictably skyrocketed. But an independent analysis by the Department of Public Safety found APD was improperly misclassifying many cases as "cleared." In other words, Donegan was right and should never have been removed. Donegan, ultimately left the department and is presently running as a Democrat for Travis County Sheriff. See Grits' prior coverage of her story and the fallout, here:
It's important to note that Chief Manley has never disputed that Sgt. Donegan was removed from the Sex Crimes Unit over the categorization of cleared cases. He just insisted she was categorizing them wrong. Then, at 4:45 P.M. on New Years Eve in 2018, the chief released the results of the DPS analysis declaring Donegan was right about the clearance-rate definitions and APD brass had made a mistake. Last I heard, APD said it would take at least until 2022 (!) to figure out how to adjust their policies going forward.

Nobody at the time claimed Donegan was removed because she was too victim-centric or had failed to train new detectives. But now, six weeks before the primary election that will decide if she becomes the next Travis County Sheriff, we hear these allegations.

The Austin Statesman was largely uninterested in covering this story when it was Chief Manley's turn in the barrel, but now has begun filing open records requests on Donegan and uncovered a memo, apparently contemporaneous with her ouster, which neither Donegan nor investigative reporters who earlier had peppered the agency with open-records requests had ever seen before. (My guess: someone must have leaked where it was and how to ask for it.) In it, an Austin PD Lieutenant both praised Donegan, in many respects, but also criticized her. The memo was presented to an APD Commander as providing a justification for Donegan's removal.

The memo, from Lt. Michael Eveleth, began by declaring he was promoted out of the Sex Crimes unit shortly after Donegan's arrival. So most or all of this is second-hand, not things he witnessed personally working under her. Many direct criticisms were pulled from detective surveys.

For starters, though, the memo began by praising Donegan at length, although hardly a whisper of that praise made it into the Austin Statesman's hit piece on the topic. For example:
Sgt. Donegan has fought for resources and additional investigators and has brought national recognition to the Austin Police Department's Sex Crimes unit. She has been instrumental (along with the Austin Travis County Sexual Assault Response and Resource Team, Safeplace and Victim Services) in educating the public and law enforcement in regards to stranger vs. non-stranger sexual assaults. Sgt. Donegan recognized that most sexual assault training addressed stranger assaults, when in reality, most offenders are known to the victim.
It's also worth pointing out that, by his own admission, Eveleth never made any of these criticisms to Donegan's face.
I truly believe that Sgt. Donegan has done a great job locally, statewide and nationally in educating and informing the law enforcement community, and the public, about the struggles and challenges of sexual assault victims and difficulties in investigating and prosecuting those cases, especially non-stranger. She also cares about her detectives and has always been supportive of them when they have had to deal with personal and family matters. I have shared with Sgt. Donegan that I believe she has made great strides with the Austin Police Department's Sex Crimes Unit.
But what Eveleth said to Sgt. Donegan and what he said to APD Commanders about her were wildly different things. While he told her she'd made "great strides," he told APD brass that "the national recognition, the educational campaigns, and the outside training has had significant consequences on the Austin Police Department's Sex Crimes unit," which suffers from a "void in day to day supervision." With friends like that, who needs enemies!

Eveleth's biggest complaint was that, even though all the data agreed with Donegan that non-stranger sexual assaults should be a bigger priority, he disliked reduced emphasis on stranger-assualt cases because those are "the type of assaults that the media reports on." A detective quoted says stranger rapes should be a bigger priority because "these are the cases that make the news." Eveleth lamented that Donegan had hesitated to encourage sensationalized media coverage on stranger rapes without full information. Eveleth wanted the department to issue a media release in one such case because those are the incidents that "garner the most attention."

Eveleth cherrypicked from detective surveys saying Donegan is too "one-sided" on behalf of crime victims' interests and too much of a "victim advocate." This is maybe the first time I'd heard that used as an internal criticism of a police officer! (In his prose, Eveleth mentioned that some detectives expressed pride at Donegan and the division's work and supported the unit's mission, but only negative quotes were pulled out to be highlighted.)

His other big complaint was even more telling and, if local reporters understood what they were reading, in reality reflects quite well on Sgt. Donegan. Eveleth was unhappy that she did not embrace having her detectives trained in the "Reid technique" for interrogating suspects. He was upset that only one person from her unit attended a training organized by the department.

The Reid technique emphasizes befriending suspects on the front end, then accusing them aggressively, threatening them with worst-case scenarios and hoping they'll crack. Grits readers will recall many articles on this topic, and lately it's starting to be abandoned by interrogation experts.

Honestly, it's very much to Donegan's credit that she failed to send her people to that training; these are methods that have been directly associated with false convictions. Austin PD shouldn't be training any detectives to use them.

So the complaints seem to be that 1) she refused to train her officers in techniques that produce false convictions; 2) she prioritized victims and their interests; 3) she refused to promote sensationalized media coverage before a case had been investigated; 4) some of her detectives thought they needed more training, and 5) national attention and accolades had left her too big for her britches.

Given the machismo-oriented departmental culture, any successful woman at APD would be criticized for #5. To me, #4 seems like something open for interpretation (especially if the training available is Reid-technique oriented). And #1-3 sound like badges of honor!

Steering the Statesman reporter toward this document was likely a campaign-driven attack, but it hardly matters. To anyone with enough context to understand what they're looking at, this document endorses Donegan more than it critiques her. Regrettably, "Statesman readers" do not necessarily number among those privy to context when it comes to local criminal-justice reporting.

Sunday, January 12, 2020

On the damage done by economists to criminal-justice policy: A personal polemic

In December, Grits was pleased to meet Texas A&M Associate Professor Jennifer Doleac, an economist who seeks to apply econometric methods to crime policy. Prof. Doleac runs a podcast called Probable Causation, on which she interviews economists about their criminal-justice-related work. She is an avid promoter of her profession. In her view, "if anyone is equipped to design solutions to existing problems and test whether they worked, it is economists."

Despite some fundamental disagreements, which will become evident shortly, she and I enjoyed a friendly and lively discussion. The following day, doctors put me under the knife. (Healing fine, thanks; radiation treatment begins soon.) But while recuperating over the holiday, our conversation got me thinking about what Grits has long considered the misbegotten role of economists in the making of criminal-justice policy. So I hope readers will forgive these longer-than-usual reflections on ideas Grits has been mulling over for several years.

To be fair, and fully transparent, I come to this conversation with baggage. Grits was an economics major at UT-Austin in the 1980s. But I left without a degree because, by the time I'd taken enough economics courses to understand the theories being propounded and the math behind them, I could tell they were filled with what seemed to me self serving lies, obviously false assumptions, and generally a great deal of intellectual guesswork being laundered through phony equations and masquerading as erudition. My interest in academic work flagged alongside confidence in my chosen field of study and pursuing another major would have added another year. So when your correspondent was offered full-time journalism work, I dove into it.

Not long ago, Richard Thaler received a Nobel Prize for his pioneering work in what's now called "Behavioral Economics," representing first steps toward a corrective for some of the flaws Grits identified as a student. "Behavioral economics" is shorthand for economists belatedly discovering the fields of psychology and sociology, as well as more honestly considering real-world marketing methods and the role of non-financial incentives. However, these are mostly micro-economic analyses (individual business or consumer decisions), not macro (how the economy works overall).

My college experience left Grits highly skeptical of economic theory, which at the macro level enjoys scarce more validity today than when I was a student. So it was admittedly with a shade of schadenfreude that Grits nodded approvingly at a recent Wall Street Journal retrospective titled, "Economists got the decade all  wrong. They're trying to figure out why."

Here's the thing: Economists also got the decade before that wrong! Following the onset of the 2008 economic crisis, then-Federal Reserve Board Chairman Alan Greenspan famously declared that the Fed had been operating under mistaken assumptions about the economy and corporate behavior.

And they were wrong before that, too! Balanced budgets combined with sustained economic growth and low inflation during the Clinton Administration flew in the face of all the models I was taught in the '80s.

Insofar as economists' job is to describe and predict the workings of the economy writ large, the profession has proven shockingly un-moored from reality, seeking to impose anachronistic theoretical models on situations that seldom conform to their assumptions in real life.

Dubbed the "dismal science" because of predictions of recessionary doom, economics more aptly deserves the "dismal" assessment because of its failure to produce useful results. As a field, economics has spent decades groping in the dark for relevance, blind to the reality that their byzantine modeling appears incapable of predicting real-world outcomes.

It's in this context that so many recent economists have latched onto criminal-justice topics. Unable to understand or explain the economy with their anachronistic theories, and having had their failures repeatedly exposed by the vicissitudes of history, they pretend the justice system is filled with "rational actors" and seek to apply the same ill-conceived assumptions to fresh terrain.

The late Gary Becker, winner of the Nobel Prize in 1992, was the first economist to attempt this trick. But his claims regarding what economic theory could explain vis a vis crime remained relatively restrained compared to what we see today. Becker limited his theorizing to property crimes, in which he tried to describe via mathematical modeling the cost-benefit analysis undertaken by a rational criminal. His assumptions work, more or less, for the "crime" of tax evasion - where you really do have rational actors making purely economic judgments - but immediately fall apart when applied to the sorts of crimes that generally fill jails and prisons.

Grits doesn't blame Becker for attempting to describe the world through math. His approaches have borne fruit in other areas like employment discrimination, which his disciples have much more usefully theorized. Rather, I blame policy makers for failing to recognize the shortcomings of Becker's (and his disciples') criminal-justice models, instead using them to establish a scientific veneer for simplistic-and-ultimately-false cost-benefit assumptions underlying mass incarceration.

Economists and their progeny have done a great deal of damage promoting criminal-justice policies based on Beckerite theorems. You don't see it as often these days, but in the 1980s and 1990s you couldn't swing a dead cat without hitting some John M. Olin professor of law and economics explaining to the public why tuff-on-crime policies were the way to go.

Too often, economic models simplistically assume criminals are rational actors and seek to influence their decisions through the "price" of criminality, i.e.,  punishment. This makes economists mostly a one-trick-pony in the policy arena: More punishment (increasing the price) applied more efficiently to more people becomes the solution to every unwanted behavior, from violent crime to scooters on the sidewalk.

When your only tool is a hammer, everything looks like a nail.

The fallacy of applying price theory to criminal punishment becomes fully evident as soon as one examines real-world situations. Take child molestation, one of the most terrible and despised crimes on the books. Applying an economists' frame, society should therefore apply extremely harsh punishments to maximize deterrence.

In reality, harsh punishments often deter reporting, leading to justice for fewer people. ("Yes, Uncle Ted fondled my privates, but I don't want him to go to prison, for my cousins to lose their father, for my Aunt to suffer financial insecurity," etc..)

Indeed, given harsh punishments on the books for the offense and the extent of public disapprobation associated with it, if child molesters were the rational actors Beckerite economists imagine, no one would ever engage in the behavior. But the nuances of human decision making stem from all manner of seemingly irrational impulses (some of which are intermixed with or disguised as rational ones).

The use of the justice system as a substitute for mental-health services and addiction treatment distances these rational-actor models even further from reality. Neither does the approach work within a coercive plea bargaining setting.

Alternatively, people may behave rationally along different vectors than simply demanding more-or-less punishment. E.g., victims may feel traumatized by the system, or even vulnerable to it out of their own potential criminal liability, to the point where they prefer crimes go unpunished than subject themselves and their families to its machinations.

All that said, Grits remains a consumer of academic economists' work on crime, some of which I find useful. That's mainly because most economists' criminal-justice work these days isn't really economics. It's applied mathematics.

Dr. Doleac's podcast is dubbed "Probable Causation." The name refers to Bayesian mathematical approaches using regression analysis to identify which variable may be associated with this or that observed change in the world. But probabilistic math is no more an "economic" approach when applied by economists than it is a "biological" approach when used for DNA-mixture analysis. Indeed, as Grits surely has no qualms about applying math to data, much of 21st century economists' work on justice topics may escape my criticisms of Becker, et. al., above.

The greater problem with applied math in the criminal-justice realm is the data to which said math is applied. The justice system typically doesn't gather data on the points upon which policy debates often hinge. Rather, it gathers data at the points where different bureaucratic entities interact when dealing with an individual. Cops hand off suspect to the county jail: a record is created. Charges filed by prosecutors on that person: another record is created. Then more, potentially, as prosecutors interact with judges and defense counsel, as those convicted enter prisons or probation, and so on.

For the most part, data generated from these interactions cannot answer the most pressing questions facing the justice system, such as what causes crime to rise or fall, what causes people to desist from crime, what incentives face various decision makers throughout the process, etc.. To quote sociologist William Bruce Cameron (not Einstein, despite the internet memes), “Not everything that counts can be counted, and not everything that can be counted counts.” Less well known, Cameron added, "if all of the data which sociologists require could be enumerated ... then we could run them through IBM machines and draw charts as the economists do."

The New Yorker recently published an essay demonstrating the difficulties of drawing firm conclusions from available criminal-justice data, and really that column only scratches the surface. We all rely on the same, limited information and certainly Grits readers see me crunch numbers all the time, where available, on this site. But in my experience, often available data can only give us a sense of what's going on, not provide definitive answers. Ever-more regression analyses on the same, incomplete datasets frequently yields little more insight than first-cut calculations.

There are, of course, happy occasions when some weird natural experiment affords unique opportunities for probative comparisons. Or sometimes, as with Texas racial profiling data, which was expanded in 2018 to include a wider array of datapoints, as mandated in Rep. Garnet Coleman's Sandra Bland Act, the government can gather more probative data if they're made to do so. (I'd love to see some heavyweight number crunchers tackle that new dataset, the next iteration of which comes out in March.)

But we don't have data to answer most of the biggest questions facing the justice system with any more nuance than an ape wields a sledgehammer. And society has suffered enough from economists recommending the sledgehammer in response to every criminal act.

MORE: On the limits of regression analysis by economists and justice researchers