Thursday, October 29, 2020

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

Readers will recall that the Texas Legislature last year legalized "hemp" without a way for prosecutors to distinguish between legal hemp and illegal marijuana, which come from the same plant. To successfully prosecute, police would need to test the plant's THC levels, but few jurisdictions have the equipment to perform the task, much less staff to handle the extra work.

The result: marijuana arrests and prosecutions plummeted statewide, with many jurisdictions eschewing them altogether. Grits dubbed it the Great Texas Hemp Hiatus. The Texas Department of Public Safety now has technology to perform the testing, but not sufficient staff; they have refused to provide testing for misdemeanor marijuana possession cases. 

In this light, the Texas House Criminal Jurisprudence was given an "interim charge" to study the questions raised by the hemp law, but COVID has prevented much progress. So they solicited written testimony, due next week, in lieu of holding a hearing. I wrote a short, two-page missive on the subject on behalf of Just Liberty. Anyone interested should give it a read. Here's a notable excerpt arguing that, when pot arrests declined, many good things happened:
police focused on other duties, jails avoided extra prisoners during COVID, court caseloads shrank, taxpayer-funded hemp testing was (largely) avoided, and counties avoided paying for some indigent defendants’ lawyers. Commercial hemp was legally harvested and sold. And nobody cared. Not really. There has been no hue and cry. If anything, the public hue and cry favors full-blown pot legalization.

In the meantime, more than 40,000 Texans who would otherwise have been arrested in FY20 avoided prosecution for pot possession, which meant they not only avoided a criminal record but also had more money to support their families when the COVID crisis hit. Would anyone be better off if 40,000 extra families, many of them already losing income from a virus-caused economic depression, were saddled with fines, court debt, probation and drug testing fees, etc.? Not at all! Everyone is better off because those prosecutions didn’t occur.

Aggressive marijuana enforcement does more harm than good and the natural experiment conducted in Texas over the last year shows that there are no negative consequences when it suddenly stops. There’s no need to “fix” the hemp law or spend millions more on specialized testing.

Monday, October 26, 2020

A chance to expand police oversight: Why Texas should begin charging cops and jailers licensure fees

Readers may recall Grits recommended over the summer that the agency licensing Texas peace officers, the Texas Commission on Law Enforcement (TCOLE), begin charging licensing fees to Texas cops and jailers. The idea was that they could use the "extra" money to expand their oversight role. 

But a new document from the Legislative Budget Board shows that TCOLE may need to begin charging licensure fees just to keep its funding at current levels. Here's why:

Since 2004, TCOLE has funded most of its activities using General Revenue–Dedicated Funds from Account No. 116, which is composed of consolidated court fees collected pursuant to the Texas Local Government Code, Section 133.102. Currently, multiple agencies spend funds from Account No. 116, including TCOLE, the Comptroller of Public Accounts, and the Department of Public Safety. In addition, employee benefits are paid from this fund. The amount of revenue collected has been decreasing for at least the past 15 fiscal years.

Check out this chart showing the rate at which this account has been outspending intake:

So the account balance is scheduled to drop below expenditures by the end of the next biennium, meaning TCOLE and other agencies funded by Account 116 must turn elsewhere for funding. Or as LBB put it, "Without replacement, the loss of this funding would halt the majority of TCOLE operations." In that light, for TCOLE, charging licensure fees makes loads of sense.

LBB suggested four options for raising revenue for Account 116, but none of them involved licensure fees. That's a mistake not even to consider it. The people who license doctors, lawyers, plumbers, etc., are all financed via licensing fees, why not police and jailers?

Grits wanted more money for the agency to facilitate more oversight and compliance functions. E.g., in FY 2019, LBB reported, TCOLE audited 770 agencies for "law and rule compliance" and found "deficiencies" in 349 of them. It's great that they're catching violations after the fact, but that's an awfully high rate of deficient audits.

Moreover, Texas is one of only a handful of states where the peace-officer licensing agency can't revoke licenses of officers for serious misconduct. Here, we require them to be convicted of a felony first, which almost never happens. But a decertification program would require resources, particularly for attorneys, and licensure fees are the most obvious way to pay for them. 

At the moment, TCOLE's budget runs around $4 million per year. Assuming a) a 95% payment rate, and b) licensure fee rates of $50/year for police, $40/year for 911 operators, and $30/year for jailers, Grits estimates about $4.9 million could be generated. One could fiddle with those fee amounts to adjust that figure up or down.

There are also nearly 3,000 agencies authorized to provide training who could also be asked to pay for the privilege. At $500 per year, ~$1.4 million could be generated from that cohort.

If Texas must begin charging licensing fees, anyway, it should do so at a level that lets the state expand oversight functions, not just keep up the status quo.

Related: See Grits' discussion of TCOLE's Sunset review.

Police Monitor: Austin police commanders ignore misconduct when they disagree with department policy

In public, previously un-reported recommendations, Austin's Office of Police Oversight earlier this month found it necessary to remind APD commanders that, "When presented with incontrovertible evidence of a policy violation, an accused employee’s chain of command should sustain the allegation related to that policy violation." Further, they declared, "This is especially true for policies that are not open to interpretation, such as those related to report writing."

Although we don't know the specific referent (the OPO can see confidential investigative files the public cannot), to me, this implies that APD brass are ignoring demonstrable police misconduct. It's not the first time.

In this instance, the context was an alleged excessive force incident from Christmas Day 2019 resulting in an arrest for "Pedestrian in the Roadway" and sustained allegations against Officers Christopher Williams and Jeffrey Hutchison, for which they received an oral reprimand.

It sounds like commanders substituted their own personal judgments for policy in issuing such a light sentence: "Should an officer’s commander disagree with any section of [APD policy] ... In no scenario should anyone in an officer’s chain of command impart their opinions about policy through the disciplinary process," the OPO advised.

One wonders with what policy commanders disagreed so much that they felt compelled to "impart their opinions ... through the disciplinary process"? That says to me that there's some policy one or more commanders disagree with so they failed to punish violations seriously. How tantalizing! I wonder what it is?

The OPO also expressed concerns about how investigators treated civilian witnesses, finding it necessary to warn that Internal Affairs investigators "should use caution with both the tone and subject matter of their questions and avoid questions that could discourage civilians from participating in current or future investigations."

The OPO further warned against IAD using "leading questions" with civilian witnesses and said their use threatened the "integrity of investigations."

They also pinpointed a pattern of manipulative questioning: "Interviewees should not be asked whether they believe that certain conduct meets a word's definition, especially when that word has a particular meaning in APD policy, without first having the word defined for them."

I'd sure like to know the backstory behind that recommendation!

Taken as a whole, even without a full explication of the basis for each of them, these recommendations seem telling: IAD investigators appear to be pushing civilian witnesses with leading questions and manipulative language, while commanders ignore clear policy violations when they disagree with the department's written policies.

Thank heavens for the OPO! Without that agency (and the police-contract adjustments in 2018 allowing for greater transparency), the public, and for that matter the Austin City Council and city manager, couldn't know about such problems.

Thursday, October 22, 2020

Four stories let public peer into soul of Houston justice system

The justice system can be difficult to understand for experts and darn near impossible for laypeople. Grits believes that's in part because the public best understands issues of crime, punishment and justice through storytelling. But there are too many stories emerging from the system which often seem to produce contradictory moral conclusions. Which story one latches onto may tell more about the storyteller (or the listener) than the system. Yet at the same time, the stories are important and without them, the public can't comprehend what's happening and drowns in a sea of policy recommendations.

Many of the most difficult dynamics facing the 21st-century justice system are revealed through the lenses of four black Houston men's tragic stories making recent headlines: Houston PD Sgt. Harold Preston, shot down after 41 years on the force while responding to a domestic dispute; Narcotics Detective Gerald Goines, whose false affidavit resulted in the deaths of two innocent homeowners; George Floyd, whose death in Minneapolis was preceded by numerous run-ins with Houston PD, including a drug conviction in which he was possibly set up by Detective Goines; and Lydell Grant, a Houston man convicted of murder and exonerated by DNA and the confession of the real killer, but whose innocence the Texas Court of Criminal Appeals refuses to acknowledge.

The justice system in Houston isn't just one of these stories, it's all of them. (And many more, but these are all particularly iconic.) There are good cops like Sgt. Preston who touched many lives and are a credit to their badges. But the same department provided tolerance and succor to Detective Goines and a sizable cohort of allegedly corrupt cops at an HPD Narcotics Division that arguably should be shut down. Telling either story without acknowledging the other provides an incomplete perspective.

Like Sgt. Preston, George Floyd grew up in the Third Ward and attended Jack Yates High School. The Washington Post has published an excellent series titled "George Floyd's America" which does a better job than I could showing how the justice system, Houston schools, and segregated housing layered together to present virtually insurmountable barriers for Floyd and generations of youth just like him.

Then there's Lydell Grant: Falsely convicted despite a legitimate alibi, based on multiple eyewitnesses' testimony which DNA results later contradicted. The Texas Court of Criminal Appeals wants the witnesses re-questioned, even though DNA evidence contradicted their recollections and the person the DNA matched has confessed to the crime! In essence, Texas' court system would rather uphold a bad conviction than free an innocent man, and it's hardly the first time.

Each of these men's stories reveals unheralded truths about the justice system. George Floyd's sad saga reminds us that it's a short step from institutional racism to terrible, negative outcomes for individual black folks. Lydell Grant's story reinforces the folly of assuming the justice system will seek or embrace just outcomes. Gerald Goines' ignominious apologue highlights the reality that law enforcement appears to tolerate bad actors in its midst, often for many decades. And Sgt. Preston's story reminds us that plenty of cops went into the business for the right reasons and there's still much good to be done in that role.

All of those things can be true at once. Focusing on any one story misses the big picture, while failing to acknowledge individuals' stories misses the most compelling aspect for the public. Today, Grits encourages you to think about four of them.

Monday, October 19, 2020

"I wonder why black folks don't want to join Waco PD?," cops telling on themselves in social media, SWAT excesses in Nacogdoches, and other stories

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

Talk is cheap when it comes to police accountability: Joe Gonzales, the DA in Bexar County, Texas, seems like a nice enough fellow. But it's time for more than promises that his office will scrutinize officer-involved shootings more closely in the future. That implicitly reminds the public your office wasn't doing so before, while failing to expressly acknowledge it or apologize for the failure. We're in a "show, don't tell" moment when it comes to law-enforcement officials reassuring the public they will punish police misconduct. People won't believe it until it actually happens.

Disrespectful: The level of armed surveillance at George Floyd's funeral was unnecessary:

Vice News reports police in Pearland, Texas, requested the presence of Border Patrol snipers at George Floyd’s burial on June 9 and gave them permission to use deadly force as members of the militarized tactical unit known as BORTAC surveilled funeral attendees. Records obtained by Vice also reveal an FBI surveillance aircraft was flown over the burial to monitor for so-called violent agitators. That day, at least six sniper teams were in place on rooftops and authorized to open fire. 

SWAT-ing episode exposes police overreaction: Grits is late to discussing the SWAT-ing incident out of Stephen F. Austin State University in Nacogdoches, but setting aside her classmates' culpability (and calling the cops on your friend is an asshole move) the idea that cops brought in the SWAT team to a dorm over a young woman with scissors speaks to a policy of needless escalation. Even if you accepted the false premise fed to police, their response wasn't warranted.

Hidden tragedy: Read the story of the first man to die of COVID in the Dallas County Jail.

Telling on themselves: An 18-year veteran Fort Worth Police Officer was fired after sharing on social media a meme of a black man in a coffin accompanied by the words, "Stop Resisting!"

Not a crime: Read the case against jaywalking being a crime: Grits agrees with roughly 95 percent of this analysis, though some of this history was new to me. But I've long opposed using criminal law to punish average people for the failures of traffic engineers.

People with criminal records need housing, too: After the public comment period was over, we finally got some MSM coverage of the new rules restricting access to supportive housing for people with criminal records. See prior Grits coverage.

I wonder why black folks don't want to join Waco PD? Read about Waco PD's difficulties recruiting black officers - or really, anybody - to join their ranks: "a police exam might draw close to 800 applicants 20 years ago, and 300 a decade ago, but that has dropped to about 100 in recent years." Readers may recall Waco PD topped the statewide list for agencies arresting the most people at traffic stops; in 2018, cops in Waco arrested about 4.5% of all drivers they pulled over.

Better late than never: Fact checkers at PolitiFact say Gov. Greg Abbott's assessment of crime in Austin was "mostly false." But it shouldn't have taken a separate "fact checking" team to report that. It was false when he first said it and should have been reported that way from the get go.

Varieties of Police Oversight Systems: For anyone interested in the pros and cons of various police oversight systems presently in use, check out this overview from the National Association of Civilian Oversight of Law Enforcement. Fascinating stuff: Every decision regarding how to set one up involves sometimes-unexpected tradeoffs. Related: A 2016 guidebook for implementing "new or revitalized police oversight."

Friday, October 16, 2020

Texas prison pop reaches 21st-century lows, but jail populations rising again

Keri Blakinger brings word that the Texas Department of Criminal Justice a) has shuttered three additional prison units and b) has witnessed the prison population dip to 120,709, which is the lowest it's been since before the turn of the century. That's mainly because county jails for several months stopped sending new inmates to TDCJ, says Blakinger, but they started taking them again in June. I'm a bit surprised that they wouldn't have caught up four months hence.

Perhaps also contributing: a substantial, reported crime decline this spring and court slowdowns, including most not setting felony trials, thus possibly delaying plea bargains.

By contrast, Texas county jails statewide had reduced populations by about 15% this spring, but as of October 1st are back to pre-COVID levels.

Both juvenile commitments to youth prisons and certifications of youth as adults also declined in 2020, reported the Legislative Budget board.

Thursday, October 08, 2020

Rangers rule police shooting 'murder,' searches at traffic stops mostly fruitless, Sheriffs behaving badly, and other stories

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

  • I'm not sure I've ever heard of the Texas Rangers announcing a shooting by a police officer constituted "murder," as they did in the case of Wolfe City Police Officer Shaun Lucas' killing of Jonathan Price. Either this summer's events have changed attitudes at DPS, the facts of case are especially egregious, or maybe both.
  • Overwhelmingly, most searches at traffic stops are fruitless fishing expeditions. At the Houston Chronicle, Eric Dexheimer and St. John Barned-Smith dug into the data on contraband hit rates, newly available from Texas' Sandra Bland Act, and took aim at trainers teaching cops "deception detection."
  • Ten people died in the Tarrant County Jail this year and a woman gave birth without the jailers noticing (the baby also died). Now Sheriff Bill Waybourn is up for reelection. Michael Barajas at the Texas Observer took apart his record
  • The Texas Indigent Defense Commission has created a new primer for counties that want to create a Public Defender office.
  • The Vera Institute of Justice has published a massive new report analyzing 911 call centers and suggesting reforms. More on this after I've had a chance to read it; perhaps it will help inform Austin's push to make the local call center independent.

Pernicious housing rule would worsen homelessness, make Texas less safe

We keep hearing how concerned Governor Greg Abbott has been over homelessness, but a rule proposed at the Texas Department of Housing and Community Affairs (TDHCA) would make matters worse.

TDHCA has suggested forbidding access to supportive housing for two years for anyone convicted of a nonviolent felony, for three years for certain offenses involving guns, retaliation, or obstruction, and imposing lifetime bans for people convicted of sex offenses, any "murder-related offense," sexual assault, or arson. Even a Class A misdemeanor would get a one-year ban.

What's the point of this except to exclude people from supportive housing options who would otherwise end up homeless? Would we be safer if felons, sex offenders, etc., are all desperate and living on the streets, or if they're housed with services and support that give them a chance to turn their lives around?

In a story I'd missed when it came out, the Houston Chronicle reported the agency has no "statistics showing there was a crime problem at TDHCA-backed housing" and does not even track that information. So this is clearly a leap-before-you-look situation.

Grits first wondered if this was proposed to undermine anti-homeless initiatives in the big cities, sabotaging them so the governor could later say they didn't work. Then a rumor reached your correspondent saying the rule may be a favor to a donor who opposes a specific development. In the Chronicle story, TDHCA said they're responding to complaints, but wouldn't say by whom. Who knows where it came from? 

What we do know is that felons leaving TDCJ already struggle mightily to find housing, particularly those with special needs who would most benefit from supportive housing options.

This proposal makes Texas less safe and should be rejected, adamantly, by the TDHCA board.

To communicate with TDHCA about the proposal, email comments to Deadline is tomorrow (Friday, Oct. 9) by 5 p.m..

MORE: See related Texas Tribune coverage.

Monday, October 05, 2020

With one, unanswered question, Chris Wallace debunked weeks of Texas media coverage on Austin, Fort Worth, crime trends, and partisanship

Grits can hardly convey my delight that, during the mostly unwatchable Presidential debate, Fort Worth Mayor Betsy Price found herself hoisted on her own petard, with moderator Chris Wallace questioning whether rising murder rates in cities with Republican mayors like Fort Worth and Tulsa show that crime isn't a partisan issue.

Trump ignored the question's premise, doubled down, and blamed Democrats, while Biden never returned to the Fort Worth example. But Mayor Price says her phone began to blow up almost immediately. She responded the next day by distancing herself from the premise, championed by President Trump and Governor Greg Abbott, that crime is a partisan concern. "Not a party issue," she declared. "It just isn't. We always say potholes don't care what party you are. Crime certainly doesn't care what party you are."

Well, gee, Mayor, it would have been great if you'd been so non-partisan and pot-holish when you sat next to Governor Abbott while he demagogued against the Austin City Council, whose citizens are murdered at significantly lower rates than Fort Worth's. Don't blame the media for picking up on that: What's good for the goose is good for the gander. Price released this data comparing murder rates in Texas cities:

By Grits' calculation, if Austin's murder rate this year were as high as Fort Worth's, we'd had seen 74 murders instead of 34. So why hold a press conference in Fort Worth to tell Austin how to keep safe?

Texas reporters didn't think to ask the Governor that question, but in retrospect, it was a missed opportunity. Chris Wallace saw Republicans' staging of Fort Worth as an alternative to Austin and just asked the obvious question: What's so great about their outcomes? Do the differences between those cities really stem from the partisan leanings of their mayors, or is there more going on?

As soon as the question is even posed in an evidence-based way, the conversation seems silly. But that's not how the Texas press has been approaching Governor Abbott's broadsides against the Austin City Council. Like Mayor Price, they've been egging him on, repeating the most ungenerous characterizations of Austin's budget proposal while ignoring the details of what was done. 

Actual cuts were 4.6%, or just a little more than the 4% cut at DPS in the 2017 budget Governor Abbott signed. Unlike in Austin, though, cuts at DPS resulted in both trooper and civilian layoffs. By contrast, Austin laid off no officers at all. But Texas reporters built out an entire story architecture around Gov. Abbott's false premise that Austin's small-time budget cuts made the city less safe.

All it took was a national journalist casting the same, ungenerous light on Fort Worth that Gov. Abbott applied to Austin for Mayor Price to backpedal from a partisan interpretation.

To be clear, it was always a pile of horse hockey to blame crime trends on partisan affiliation, or for that matter Austin's modest budget cut to the police department. What's depressing to me is it too often takes a national journalist intervening to examine Texas leaders' talking points and observe, "The Emperor wears no clothes." Only the Texas Tribune had reported this as essentially a campaign ploy as opposed to a serious policy proposal.  Other Texas reporters should have learned that lesson by now. (UPDATE: A commenter pointed out Chris Hooks at Texas Monthly also emphasized the politicized nature of the Governor's complaints.)

Report from Houston Policing Task Force should launch broader conversation

The Houston Mayor's Task Force on Policing Reform covered a lot of ground in its 150-page report, considering a large variety of changes, big and small. The sprawling report was so dense and byzantine, Grits decided to distill it into a 3-part blog summary/commentary (linked below) that itself came in at more than 5,000 words. They simply addressed a lot of stuff! 

The Task Force recommended more than Grits expected but less than I'd hoped. These are very much reformist approaches that contemplate improving systems addressing police misconduct, not reducing police interactions with the public overall. (The one exception is their endorsement of Houston PD availing itself of a 13-year old statute allowing police to give tickets instead of arresting for certain minor offenses.) That doesn't mean they're not important reforms, they're just not radical ones.

There's a risk a report like this with its 104 deep-in-the-weeds recommendations will be briefly acknowledged in the press, then shelved. But it could/should be the starting gun for a broader discussion across many subjects, not the final word on reform. Grits' hope is that these commentaries contribute to that conversation in Houston. It's much needed.

Saturday, October 03, 2020

Houston Mayor's Policing Task Force Recap, Part 3: Mental-health first response, What counts as diversion?, the 'all-purpose panacea promoted by people who oppose policy change,' and other stories

Here's Part 3 of Grits' tripartite, annotated analysis of the new report from the Houston Mayor's Task Force on Policing Reform. See Part 1 and Part 2.

Mental-Health First Response
In Austin, Dallas, and elsewhere across the country, one of the approaches to displacing police from non-law-enforcement tasks has been mental-health first response, where many clients do not ask for a law-enforcement presence and end up in involuntary detention, more often than not, because police don't know what else to do with them. Adding insult to injury, when cops drop them off at the emergency room, they get credit for a "jail diversion"!

The Task Force found that "Diversion of mental-health-related 911 calls at the call center level is the earliest point of diversion before any law enforcement involvement. Since the beginning of the [counseling] program, CCD [Crisis Call Diversion] diverted more than 4,902 calls from law enforcement response and saved the equivalent of 7,353 hours of police time (March 2016 to May 2019)." The Task Force recommended funding 24/7 counselors to boost the diversion rate, as well as boosting the number of Mobile Crisis Outreach teams (civilian medical folks who respond to MH crises in the field), and tripling the number of HPD's CIRT teams, which are police officers teamed with mental-health practitioners.

The Task Force endorsed a legislative proposal folks in Dallas and Austin have been clamoring for as well: Amending state law (Chapter 573 of the TX Health and Safety Code) to allow health care professionals to handle decisions related to emergency detentions. Right now, only police can do so, and that law is a barrier to removing law enforcement from the equation in non-criminal mental health calls.

Mental health cases are a growing part of HPD's case load, as they are all over the state. In an article on CIRT teams, the Chronicle mentioned that, "In Houston, encounters between police and people with mental illness ballooned over the last decade from 23,913 mental-health calls in 2009 to 40,884 in 2019." That means that the Crisis Call Diversion handles a rather paltry 3.8% of calls.

Importantly, the CIRT teams are not actually "first responders," but "secondary responders" similar to the EMCOT program in Austin, which also appears to go to relatively few calls (10.5%.). What happens to the other 86% of mental health calls? It appears they get the nearest police officer regardless of training. That's both a big waste and heightens the chance that people in mental-health crisis get shot.

What counts as diversion?
The Mayor's task force claims HPD's CIRT teams focused on mental-health cases has a 95.9% rate of "diversion from jails." But that's a miseading figure. Fewer than one in four calls are resolved at the scene; in all other instances, somebody is taken away, usually against their will, and sometimes against the wishes of their parents, guardians, or care givers.

The data shows that more than a third are dropped at hospital emergency departments because area psych hospitals had no space. Since these patients may not have insurance, and ERs are not set up to handle behavioral health issues at any significant scale, this has been a source of complaint for years in many jurisdictions, not just Houston. 

It's time for H-Town to challenge itself to substantially increase the share of mental-health calls met with a non-police response. A major goal should be boosting that "resolved on scene" number from less than 25% to 2/3 or more, reserving "emergency detention" for situations where a person poses a danger to themselves or others. Those criteria may include abusive behavior toward family and there may be good reason to detain any given individual (so spare me the parade of anecdotes in the comments, I get it). But in a huge number of cases there is not; too often, cops take someone based on a "better safe than sorry" logic. After all, the hospital/ambulance bills aren't going to show up in their mailbox months later.

Domestic calls: Do all of them need a cop?
The Task Force endorses a pilot program at HPD for intervention with high-risk domestic violence victims called DART (Domestic Abuse Response Team), which pairs officers with a victim advocate nurse. The pilot has been ongoing since January 2019, operating three nights per week (7pm to 3am) in three HPD districts. No information on how much it would cost to expand.

For that matter, I'd love to see any outcomes or research based on this pilot, comparisons to control groups, etc.. When I searched on the HPD website regarding the program, I only found one responsive web page: This flyer. If it's been going for nearly two years, one would think there'd be something out there.

When agencies do pilots, Grits believes they should always budget a research and data collection component. Domestic violence policies and police responses have always been all over the map. Maybe this is a great program; maybe other approaches would be better. When experimental programs are tested, somebody should be tasked with reporting on what they're doing, including any relevant metrics. Even better: Evaluating the program compared to a control population. That doesn't appear to be have been done yet for DART.

Regardless, Grits remains unconvinced that police need to go to every domestic disturbance call, even as security, as described in the DART program. There must be a response, and if a cops are needed, they should be called. But once the cop engages in violence or pulls their gun, that trumps clinicians' authority or decisions. Sending them only when needed reduces the chances that happens.

Indeed, one can make an argument that cops are simply the wrong messengers on this topic, as our pal Jessica Pishko recently reminded:
Other studies have found that police themselves are often the perpetrators of domestic and sexual violence, rendering them undesirable as a source of help, particularly for women of color who experience much greater rates of violence, including sexual violence, from police. Interactions with the police can also exacerbate existing conditions, like economic instability or trauma.
Pishko quoted law prof Aya Gruber expressing a sentiment your correspondent has held for some time: "victims may be making a rational choice when they decline to testify against their abusers. 'Domestic violence prosecutions have little benefit to women and in fact can harm them,' she explained, 'but the prosecutors are very convinced they are saving women’s lives.'"

Task Force: Decriminalize prostitution! But make them work in criminalized environs.
Grits didn't foresee the Mayor's Task Force recommending that prostitution be decriminalized. That said, they weren't exactly suggesting the re-establishment of the city's red-light district: They still think the state should to prosecute "pimps, brothel and illicit massage parlor owners and managers, sex tourism operators, and sex buyers." But right now, they declare, "Law enforcement is arresting the wrong people."

Here's the oddity: Clearly they consider most prostitutes victims who deserve protection. Different folks feel differently about that, including sex workers, and I'm not trying to launch that debate. But I do question the virtue of claiming to "decriminalize" prostitution and then criminalizing everything about the industry except service provision.

In the age of the internet-personal ad, many prostitutes operate individual sole proprietorships without a formal "pimp" or brothel. For them, the Task Force's distinction doesn't make a difference.

If we're now going to express sympathy for prostitutes, then let's be clear: The biggest dangers they face all stem from the government banning their services and forcing members of the Oldest Profession to provide their wares in a black market. The sole proprietor of the liquor store may rely on police for protection; the sole-proprietor prostitute seeking security must turn to a pimp, which is an inherently unhealthy partnership.

Training: The all-purpose panacea promoted by people who oppose policy change
Look, I'm all for good police training. Indeed, much of what I've learned about police practices (and jailers, and prosecutors, and defense lawyers, and district judges, and appellate judges, and forensic analysts, etc.) has come from attending their professional training sessions, conferences, and CLEs over many years and/or reading training materials (plus chasing down items from their footnotes) from those events. While, between my illness and COVID, 2020 has been a dry spell, in the past I might normally attend several such events per year, including many that put me in rooms filled with police officers. Frankly, I've never had a bad experience doing that and highly recommend it.

That said, having worked on police reform now for more than 25 years, here's Grits' view: "More training" is the first thing reform opponents suggest whenever substantive reforms are proposed. It's always the first "reform" suggested and, as soon as it's implemented, reform opponents push hard to stop there. Every time. Some of the trainings on implicit bias and racial equity in particular appear to have little effect on outcomes. Grits didn't consider it good enough a quarter century ago and it's certainly not good enough now.

Yes, change your policies, train on the improved ones, and consistently, effectively punish officers who fail to follow them. That's how you change departmental culture. But training alone won't help.

Reflections on Mayor's Task Force Recommendations
Having now gone through the entire report, what to make of it as a whole? There are moments where it is bold, for example, recommending changes to the 180-day rule and insisting officers suspected of misconduct should be questioned at the beginning of the investigation process. And I was excited to see the recommendation that un-redacted bodycam video should be released, though I don't agree to limiting that to critical incidents.

Similarly, the suggestions that 1) Houston PD create a complaints database and 2) publish an annual report on disciplinary actions against officers, would constitute a major leap forward in transparency for the department. But it falls short of what's needed: Police departments also need to begin publishing data and detail about use of force incidents in online databases where researchers and the public can access them. Grits knows for a fact legislation requiring that statewide will be filed during the 87th Legislature, and the an executive order from Donald Trump mandated creation of a national database documenting "instances of excessive use of force."

Texas already has good data on police shootings and deaths in custody. That's the next step.

Grits remains less than confident they've figured out the right way to keep Houston cops from shooting people on mental-health calls or domestic disturbance calls. I'd prefer to see them working to expand the subset of those encounters at which police are absent entirely. They can always be called in if needed.

Other suggestions seem more like half measures that don't really get at the problems they hope to solve - redesign a website, issue a report on diversity efforts, etc.. All perfectly reasonable stuff the government must think about, but boring and unlikely to be decisive in addressing the problems.

Finally, I don't believe they've identified the right model for the Independent Police Oversight Board, potentially designing it to perform a fruitless, Sisyphean task that leaves them set up to fail. The Task Force acknowledged that the all-volunteer IPOB needs significant staff to do its job, and that more staff are needed to process complaints, both from the community and from officers themselves. Why not follow Austin's lead and create a full-blown Police Monitor to manage that staff, add value through regular reporting, and to advise the Mayor and Council on issues related to departmental conduct, discipline, and culture from an independent perspective?

Grits sees these Task Force recommendations as the beginning of a conversation, not in any sense the final word on what reform in Houston might look like. If all of them were implemented tomorrow, it would be a Banner Day for Criminal-Justice Reform. And yet, it would be insufficient. In just a few years, many of the same problems would arise.

This report had a great deal of crossover with recommendations from several city council members earlier this week, and was in a sense even more aggressive. Between them, they're a good conversation starter, but now the conversation must move forward. 

Friday, October 02, 2020

Houston Mayor's Policing Task Force Recap, Part 2: "Let the 'good cops' speak!," toward a functional police-oversight system, changes to use of force and bodycam policies needed, and building trust through transparency

Here's Part 2 of Grits' tripartite, annotated analysis of the new report from the Houston Mayor's Task Force on Policing Reform. See Part 1 here.

Improving Complaint Process: Allow anonymous complaints to let 'good cops' speak up
The Task Force recommended several important improvements to the complaint process, including allowing complaints online. "Currently, people can submit complaints in person at any police substation, at the Internal Affairs/Central Intake Office or at community organizations," said the report, though we learn later the procedures for community organizations to take complaints have "fallen into disuse." They suggest translating and accepting complaint forms in multiple languages ("Houston residents speak over 145 languages"), and hiring staff to better communicate with complainants.

They did not recommend going so far as Austin did to allow anonymous complaints. A missed opportunity, but something that could still be proposed. They should also publish de-identified versions of complaints, whether or not they're sustained, as Austin has begun to do. This would require amending the union contract or changing state law.

A few years ago, Grits might not have considered anonymous complaints a hill worth dying on. But my wife did, along with the good folks at the Austin Justice Coalition. And a funny thing happened when Austin implemented that policy: Cops started using the system! Moreover, they often identified misconduct that civilians could never glimpse to report. (Truly, you can't predict how reforms will turn out IRL until you implement them.)

For this reason, allowing anonymous complaints in Austin has been a much greater boon to accountability than your correspondent would have thought: If Houston really wants the "good cops" to have a voice, that's the best way to do it. Investigators will determine whether complainants are credible based on whether their information holds up. The identity of the complainant shouldn't matter, anyway, if the allegations are true. Give good cops a forum where they can speak up, and some of them will!

Make Independent Police Oversight Board more functional
Several recommendations were simply aimed at directly confronting the fact that the Independent Police Oversight Board (IPOB) in Houston has been coopted by anti-reform forces. They quoted a former board member declaring, "far too many Board members are uncritical boosters of the police and policing, sometimes shamelessly so, which hinders their ability to fairly evaluate officer conduct." Further, 
IPOB members’ recent support of the four HPD officers who shot Houston resident, Nicolas Chavez, 21 times confirms our belief that the IPOB’s culture must be fundamentally overhauled. It is distressing to the Task Force that the civilians put in place to hold officers accountable would defend these officers’ actions when even the Chief of Police himself said that he “cannot defend [the officers’] actions” and deemed their use of force “not objectively reasonable.”
They recommended replacing the current IPOB chair and panel chairs, instituting staggered terms to ensure leadership doesn't stagnate. Grits doesn't mind this but considers it a situational change: When good leaders are appointed who are committed to the board's mission, long tenure isn't a problem and may yield benefits. Staggered terms are more little-d democratic but also assumes leadership will be bad and need replacing. The Mayor could also just begin to appoint people committed to the agency's mission.

Hard to argue with giving the board more information and training, giving them 30 days instead of 15 to review files, requiring Internal Affairs staff to be more responsive, improving their website, nor appointing a deputy at the Inspector General's office dedicated to HPD and the IPOB. And requiring the Chief to respond to IPOB reform recommendations (in writing, please, and on a time table - say, 30 or 45 days) can only be a good thing.

Whether to expand the IPOB by ten members is another question and depends on what the city decides should be the agency's mission. The Task Force has suggested it should perform an "investigative" role. But as Grits pointed out in Part 1, there's no place in the disciplinary process for the results of such an investigation to have an influence.

One recommendation would be quite welcome but seems like a longshot: "Past IPOB members have shared that the recommendations from the IAD 'feel like narratives or advocacy pieces written on behalf of and defending police'" The Task Force recommended that IAD produce "Objective reports" with "a more balanced perspective that duly contemplates the actions of both sides." Don't hold your breath, says Grits. This is the argument for having an independent Police Monitor staff the board. You're simply not going to get "balanced" or "objective" from IAD.

Body Worn Cameras: Make footage public and punish cops who turn them off
The Task Force wants universal use of body-worn cameras and would like video promptly released, especially in critical incidents, "without redaction." HPD has authority to do that now and could choose to create a policy for releasing video, as Austin has done. But in Houston, the discretion lies entirely with the Chief, who resists releasing video when it makes the department look bad.

IPOB members complained that some cases lacked BWC footage because officers didn't turn on their devices. They believed that routine "forgetfulness should not be tolerated" and HPD should "make clear ... discipline is required for an officer not turning on his or her BWC." Grits would add this should be a per se violation. If the footage isn't captured, the excuse doesn't matter. I can't tell you how tired I am of hearing about "equipment malfunctions" that can't be replicated.

The Task Force also recommended HPD invest in dashcams for their vehicles, and Grits agrees. Body cams have some weird and problematic issues surrounding how people interpret video information that can be balanced by a view of the whole scene. E.g., the bodycam view of the suspect struggling may make more sense when you see a wider shot of the officer assaulting them. According to the task force, only 12% of HPD squad cars are equipped with dashcams.

The Task Force recommended that facial recognition software never be used with BWCs. Grits would add it should also not be used with stationary cameras operated around town by police, nor on third-party video to which the department has access (e.g., through the DPS fusion center), unless it's part of a probable-cause-based investigation.

Use of Force: Less of it, please
I feel sorry for our friends at Campaign Zero, but the flak they caught over their #8cantwait campaign was justified. Their asks were too small for the moment and too easily fudged. The Task Force began its use of force section by invoking the campaign to say Houston PD had already implemented the #8cantwait reforms. Grits hasn't gone through HPD policies to verify that, but in any event, it's not a high bar.

The Task Force went on to recommend a complete ban on no-knock warrants; Chief Acevedo's reform had been to require his personal sign off. Grits is with the task force: I'd prefer a complete ban (statewide, not just in Houston).

The Task Force also recommended updating and consolidating deescalation and use of force policies. Grits would have gone further. In the proposed Texas George Floyd Act, Houston state Rep. Senfronia Thompson has recommended, as she has in the past, changing state law to limit the use of deadly force in ways that comport with national best practices. HPD should change its policies to comply with that standard, not adjust its policies around the current statutory framework. HPD can and should set higher expectations for its officers than the rather low bar in current state law.

Grits doesn't particularly care about a requirement that officers have this or that number of hours of higher education. There are many people, as the late humorist Jerry Clower used to say, who've been educated beyond their intelligence.

Nor do I think we need to designate "high crime areas" and only send cops in pairs to those neighborhoods. The Task Force suggests that, "Based on the duty to intercede policy, multiple officers are more likely to hold one another accountable and prevent an officer from using force without cause." In theory, that could be true, and I wish I weren't so jaded as to no longer believe that would be the result. But I don't. 

Rather, Grits believes such thinking contributes to a set of assumptions and pre-programmed responses in neighborhoods pre-judged as dangerous that I don't consider valid, healthy nor proper. Don't treat black folks like animals who cops can only approach  in twos. If your officers say they're too scared to patrol alone, find different ones.

The recommendation for an "early warning system" has been tried many times but the threshold to trigger a warning is almost always set too high and the bad guys are missed. If HPD does this, it should perform a massive data experiment testing various EWS protocols (honestly, dozens wouldn't be over the top) over the course of several years. Police managers should begin a process that will let them know 3-5 years from now what the best EWS system is for Houston: Don't assume you know on the front end.

'Rebuilding trust through transparency'
Among the most exciting recommendations related to opening up the process to give the public and reformers a better sense of what's going on: You can't manage what you can't measure, after all.

So I was happy to see the recommendation for "a public database of complaints against officers, sustained and unsustained," as well as more formalized, public reporting of disciplinary actions against officers. With efforts afoot to create use of force databases among constables and possibly the sheriff, we could soon have much more information about use of force in the Bayou City than would ever have been possible before.

Attentive readers may recall that, when the first round of Sandra-Bland-Act data was released, Houston PD used force at traffic stops more often than any other agency in the state, according to its self-reported data. So we definitely need more granular data if anyone's going to figure out how to reduce those totals, which probably surprised even HPD managers.

Grits is interested in the idea of "performance-based audits of patrol and investigative functions," but really want to understand better what are the best performance metrics by which to judge those duties. For investigative functions, "clearance rates" is probably the best one. But for patrol? I'm beginning to think a big part of the problem with 21st century policing is that we don't have a firm grasp of exactly what cops should be doing in that function or how to measure success, much less identify failure.

The various policy adjustments suggested in the "respectful, equitable policing" section all seem reasonable with this caveat: Culture eats policy for breakfast. So changing these policies - even ones like authorizing citations instead of arrest for pot and driving with an expired license - doesn't guarantee officers' behavior will change in the field. That requires buy in from police management.

Finally, I'm loving that the Task Force recommended that Houston join Harris County in pulling out of the OmniBase program. The state should end it altogether. This is Texas' program for turning traffic-ticket debt into warrants and it's optional for localities. Thanks to the good work of the Texas Fair Defense Project (particularly Emily Gerrick, who's been dogged on the subject), and Texas Appleseed, more cities are beginning to realize they aren't required to suck drivers into a seemingly endless cycle of jail and debt. It'd be huge if Houston opted out.

Tomorrow: In Part 3, I'll take up mental-health first response, decriminalizing prostitution, training, officer health and wellness, and offer some big-picture reflections on the Task Force's proposals.

Thursday, October 01, 2020

Task Force on reforming Houston police: Empower oversight board, remove civil-service barriers to accountability at #txlege, and have someone besides the DA prosecute police misconduct (Grits has a suggestion)

"The loss of public trust and credibility makes it difficult, if not impossible, for the police to forge partnerships in local communities, let alone expect community cooperation in criminal investigations," declared the Houston Mayor's Task Force on Policing Reform (TFPR), which issued its recommendations this week. Even if your correspondent might have gone further, or may quibble with their suggestions (as indeed, I will, below), they're more significant than Grits had anticipated. Good for them!

The Houston Chronicle reported that the Mayor asked for "a few days" to digest the report and meet with the task force chairman, sub-committee chairs, and council members before formulating a response.

Grits, however, has no need to wait. Let's dig into this report and see what's there. Obviously at 104 recommendations, we don't have time to discuss all of them. And some of them are rather small-time, anyway. But let's run through the big stuff, describing their recommendations with Grits' own annotations. This is Part One of what I anticipate will be a three-part analysis: I read the 150-page report so you won't have to! :)

Community Policing (yawn)

So-called "community policing" has always been a hustle. No one can define it and in practice departments interpret it as officers spending time hanging out with whomever instead of responding to calls or performing police work. As fear of crime has declined as the go-to driver of more police spending, "community policing" offers departments a new metric -- percent of time available -- to demonstrate that we always need more officers no matter what is happening with local crime stats. At HPD, Chief Art Acevedo uses the term "relational policing," but, "The Task Force believes it is similar, if not mostly the same." In other words, it's a buzzword intended to confuse with results that can't be measured. None of the recommendations here seem destined to reinvigorate this tired and fruitless approach, from giving cadets community tours, making them sit through more lectures, or having officers document "out of car engagements with civilians and/or businesses."

Updating promotion matrices to give points for community policing might be helpful, once there is a consensus on what exactly officers should be doing, but the report failed to discuss taking points away for officers with misconduct records. That might help, too. In 2017 legislation, Houston state Rep. Senfronia Thompson recommended deducting points for officers found to have engaged in misconduct. Perhaps it's an idea worth reviving?

I liked the "mobile storefront" idea, which was the final recommendation (#16) in the community policing segment. Most of the rest in this section seemed pretty lightweight.

Independent Police Oversight Board

Grits has never been a great fan of civilian-review boards because most of them are as worthless as the one in Houston. Austin's oversight board, along with the Office of Police Oversight (essentially a Police Monitor-Board model), at least has become a window into policing problems we've never had before. (Local press don't cover the complaints, but they're out there from a credible source, and advocates discuss them.)

The Task Force agreed with city council members who recently said they have "no confidence in the current format" of the IPOB. Its powers are truncated and it fails to perform even the duties it's been assigned, they concluded. (These recall the complaints of an IPOB member who recently resigned over the group's inefficacy.) The Task Force laid out three broad models of police oversight:

  • Auditor/Monitor Model
  • Investigative Model
  • Review Focused Model

They recommended IPOB expand to 31 members and adopt an "investigative model," but Grits wonders, "to what end?" Their investigation results would not be part of the department's decision making process when it comes to disciplinary decisions. They have their own investigators for that in the Internal Affairs division. How will these investigations affect real-world outcomes, including policies and practices, much less in the individual cases they investigate?

Since it's been empowered to a) review previously confidential documents and b) publish sometimes de-identified results, Grits has found Austin's fusion of Monitor/Review models (to use the Task Force's nomenclature) gives advocates more empowering information than we had before. The oversight board here reviews cases with an eye toward recommending policy improvements, and the record they create was been a valuable tool for documenting problems in a way that city officials are able to hear. Requiring the Chief to respond in writing to civilian oversight recommendations has also helped.

The Task Force does recommend hiring dedicated, paid staff to support the civilian review board, including investigators who it hopes will have "subpoena power." (FWIW, I'm not sure what more they think they'll get with a subpoena beyond what they get by mandating access to the department's full file.) Regardless, having staff led by a dedicated Police Monitor's position, as Austin did, has the added benefit of creating a counterweight to the chief in the city bureaucracy on police-misconduct questions, where officials might not listen to part-time civilian volunteers. That's a big practical benefit and has been welcome change.

Legislative changes needed to civil service

The portion of the report which made your correspondent jump out of his chair and whoop with sheer delight addressed legal changes needed at the state or city level, but with particular focus on the state.

They want to change the much-derided 180-day rule in two ways - one significant, one not. For the uninitiated, state law and many union contracts say officers in civil service cities can't be punished more than 180 days after they commit a misconduct violation. The Task Force recommended changing this in two ways: 1) have the clock launch on the "date of discovery" of the misconduct instead of the date it occurred, and 2) change 180 days to 210.

The first change is significant; the second much less so, though the first change magnifies its impact. Together, they'd be an important reform. That said, make Grits Philosopher King and I'd say for police the rule should be a full year from the date of discovery.

The Task Force wants to fix another civil-service practice your correspondent has railed against for years: "Require officers involved in incidents in which their conduct is under scrutiny to make statements at the beginning of the investigation." As the Task Force noted on p. 34, "Current practice allows officers to defer making statements until after the investigation is complete and they can read the entire file," as well as review any body camera footage.

Imagine if in a regular murder investigation they waited to interrogate the suspect until s/he reviewed the investigation file with their lawyer: Unthinkable!

Who should prosecute police misconduct?

The Task Force believes the District Attorney has a "symbiotic relationship" with the police department, which results in an "inherent pro-police bias." Thus they think "an independent agency," unnamed in the report, should prosecute those cases instead.

This has been suggested many times before. Some iterations see special prosecutors appointed each time, though that gets expensive.

Speaking of which, Texas Attorney General Ken Paxton has said he'd take the job, but I don't think anybody would trust him.

Grits has a suggestion I believe would be popular with everyone but Alex Bunin, the Harris County Public Defender: I think the Harris County Public Defender Office should take over prosecuting cops instead of the District Attorney.

I've given this a lot of thought: Bunin and his shop are respected, and they already have an oppositional relationship with the Houston PD. I can't think of another outfit that would care less about pissing off the union. They've got the talent in the office to do the job. Plus the commissioners court just expanded their budget.

Now, they may not want to do it. Many of those folks are life-long defense lawyers who chose not to go into prosecution for a reason. But sometimes, the person who doesn't want the job is exactly the right person to handle it responsibly. (They know what's required; that's why they didn't want it!) It wouldn't be that many cases by comparison to their usual docket and I believe they're the right crew to handle the job.

Next time: Improving the complaint process, body-cam policies, use of force, and "rebuilding trust through transparency."