Monday, April 12, 2021

A dirty, uncomfortable feeling: TCOLE Sunset bill lame, inadequate, and kicks can down the road on the biggest police accountability issues

After staff at the Texas Sunset Commission issued a scathing assessment of the Texas Commission on Law Enforcement, the legislation enacting their vision couldn't be more disappointing. The bill passed out of committee as filed this week with no changes.

It would create a blue-ribbon commission to evaluate all the biggest questions, even though Sunset staff already identified the problems. See Grits' write-up of Sunset staff's concerns for more detail, but big picture, Sunset staff said "Texas' Approach to Regulating Law Enforcement is Ineffective" and "the state’s regulation of law enforcement is, by and large, toothless." They cited a "fragmented, outdated system with poor accountability, lack of statewide standards, and inadequate training."

Further, they declared "The state’s regulatory model, bifurcated between state and local government, creates significant gaps that undermine the purpose of statewide licensure, and does not best ensure public safety or law enforcement accountability and transparency."

Last but not least, the Sunset review found that "TCOLE’s minimum training standards are outdated and ultimately do not meet the evolving needs of law enforcement personnel in Texas."

None of this is being addressed, even though solutions are apparent for most of the problems.

You see, TCOLE is not like a regular licensing agency. If they were licensing plumbers or beauticians, they would identify oversight required to keep the public safe, calculate the costs, then charge licensees a fee to cover it. TCOLE is the only licensing agency I'm aware of to which licensees pay no fees. Their money largely comes from a fund generated by court costs which have been declining in recent years and is scheduled to run out.

So there's a strong argument to charge TCOLE licensees a fee, anyway. But that's even more the case when you realize there's so much they need they can't pay for: Curriculum development specialists, issue-area-experts, an expanded decertification program (appeals require lawyers), more inspectors to ensure training requirements are met ... even tasks like gathering data from the Sandra Bland Act get messed up because the agency has no staff or expertise to assign to it.

TCOLE needs expanded authority and expanded staff. Creating a licensing fee is how to pay for the extra staff. It's how every other licensed industry pays for oversight. If the Legislature won't enact licensing fees in this Sunset bill, at a minimum they should add a requirement to the bill that the "blue ribbon commission" study creating them.

As for expanded authority, TCOLE is one of only a handful of states whose authority to decertify officers who engage in misconduct is so incredibly limited. In Texas, officers must be convicted of a felony, a serious misdemeanor, or be dishonorably discharged as an officer TWICE before TCOLE can decertify them. According to the Sunset review, more than 2,800 officers over five years were dishonorably discharged in Texas, but only nine lost their licenses.

The easiest, most high-impact reform the Legislature could make in the TCOLE Sunset bill would be decertify officers licenses when they're dishonorably discharged. The legislative fix is easy: delete the final clause of Sec. 1701.4521 of the Occupations Code. Here's how to do it:
Sec. 1701.4521. LICENSE SUSPENSION FOR OFFICER DISHONORABLY DISCHARGED. (a) The commission shall suspend the license of an officer licensed under this chapter on notification that the officer has been dishonorably discharged if the officer has previously been dishonorably discharged from another law enforcement agency.
There's already an appeals process in place. TCOLE might need more resources to manage a greater number of appeals, but that's not an insurmountable problem. And why even bother to license officers if misconduct so extreme they're "dishonorably discharged" isn't enough to take away their badge?

Decertification authority needs to be bolstered in other ways, some of which were captured in Rep. Vicki Goodwin's HB 2844. It doesn't make sense to wait until cops are convicted of felonies before they can lose their licenses, but that's the way the law reads now.

There are other, obvious changes needed. One small thing, but dear to my heart: Texas was once the "epicenter" of forensic hypnosis in America. But now that no police agency in the state admits to using it and it's no longer possible to get training in the discipline, it's time to "sunset" the forensic hypnosis certification program at TCOLE. Legislation is moving in both chambers to ban the practice from Texas courts and nobody showed up to oppose either bill. What's the point of keeping this dead discipline on the books?

Another unaddressed topic: The board membership at TCOLE needs to be expanded. IMO, three heads of local civilian-oversight agencies should be added to round out all the law-enforcement management and union interests represented.

Finally, Grits would like to see the Sandra Bland Data collection at TCOLE expanded to include police use of force, as New Jersey recently mandated. (If Grits had his way, they'd report every time they pointed their weapon.) Not only should this data be gathered, TCOLE should be staffed to clean, manage, analyze, and report on it.

Nothing like that is in the Sunset bill. They kick the can down the road and everyone is asked to wait patiently for a blue-ribbon panel's recommendations so they can then ignore them like they are suggested improvements now.

Leadership is saying they don't want to take amendments and prefer to keep the bill "clean," but to be honest, it all feels pretty dirty: Another regulator in thrall to the industry it regulates, only this time the industry capturing its regulators isn't electric-power producers, it's law enforcement. And it's not so much the regulators who've been captured (TCOLE boss Kim Vickers wants more resources and authority), it's the lawmakers who write the rules and draft their budgets who're hamstringing greater accountability.

Finally, the blue-ribbon panel itself as written is dominated by law enforcement interests and contains scarce few slots that could even conceivably be filled by anyone with a civil-rights or police-accountability background: It's theoretically possible but unlikely, and if it happens, it'll be one or two token appointments. This is a panel designed to defend the status quo, not to challenge it.

Grits was hopeful the TCOLE Sunset process would provide opportunities for accountability-focused police reform, but that doesn't seem to be the case so far.

Sunday, April 11, 2021

Two decades after Tulia, corroboration requirement for police in drug cases may finally have its day

Debates around the Texas George Floyd Act have revived discussions of accountability in drug enforcement that first arose two decades ago following the Tulia drug stings. Regular readers know George Floyd was one of scores of Houstonians convicted of drug possession based on the uncorroborated testimony of Houston Police Narcotics Officer Gerald Goines, whose mendacious testimony about fabricated informants resulted in the deadly Harding Street raid.

Goines' case - and the audit of the HPD narcotics unit showing similar practices by other officers were largely unregulated and unsupervised - revived failed efforts following the Tulia episode to require corroboration for police officer testimony in drug cases. This week, HB 834 (Thompson) requiring corroboration for undercover officers in drug cases passed out of committee.

Notably, as if to corroborate the need for corroboration, a couple of days before that bill cleared committee, a similar case arose in the national press. A NYPD narcotics detective responsible for thousands of arrests was found to have falsified testimony in at least 90 cases and likely many more.

Like Gerald Goines and Tom Coleman, NYPD Detective Joseph Franco has caused incalculable harm. As in Houston with Goines' victims:

erasing records can only go so far, public defenders say.

“The damage is done at the point of arrest,” said Tina Luongo, a lawyer who heads the criminal defense practice at the Legal Aid Society. “They likely had bail set on them, spent time at Rikers Island, lost jobs, were separated from their families — no matter what happens, those harms were done.” 

How much of that could have been prevented just by requiring some evidence - any evidence - beyond a police officers' word to secure a conviction?

On the most recent Reasonably Suspicious podcast, Mandy and I interviewed Jeff Blackburn, a civil rights lawyer out of Amarillo (and my old boss at the Innocence Project of Texas) about the Tulia drug stings and pending legislation to require corroboration. Jeff also testified by video at the hearing for HB 834, which is a stand-alone bill including the corroboration provision from the #TexasGeorgeFloydAct. I pulled that podcast segment out as a little seven-minute stand-alone, you can listen to it here:

Grits is excited this Texas legislation appears to have legs this year, but part of me can't help but lament our failure to secure this reform 20 years ago. Back then, the corroboration bill was scaled back to require it only for informants, not police officers, How many false convictions and abuses of power might have been prevented in the ensuing two decades if we'd won this reform back in the day? We will never know. But better late than never, the Texas Legislature has an opportunity to rectify this oversight now.

Yes, Mr. Schaefer, police violence is a problem, even in Tyler

Rep. Matt Schaefer (R-Tyler), who represents my hometown, said at the Homeland Security and Pubic Safety Committee hearing the other day that there'd been no serious police violence incidents in his district in many years. Maybe he meant police shootings or deadly force. But a couple of folks in the audience grumbled that somebody should tell that to the 15-year old kid thrown to the pavement by a Bullard police officer last fall. Here's video from the incident:

The kid was 15 and had tried to charge his phone without making a purchase, which was against store policy. Off-duty Bullard police officers told him store owners didn't want him there. He asked to speak to the manager but they refused and put him in handcuffs, took him outside, then threw him to the ground as seen above in front of cell-phone wielding witnesses. The episode sparked protests in response.

Might this incident have been prevented if HB 830 - part of the Texas George Floyd Act - barring arrests for Class C misdemeanors had already been law? Maybe not. No arrests were made because Bullard police officers had no authority to make them outside their jurisdiction, according to local news reports. (They were at a facility in Tyler, not Bullard.) So the kid was merely handcuffed and detained by police then assaulted before being let go with no charges. On the other hand, HB 833 limiting police use of force would have prohibited this entirely gratuitous force incident. And HB 832 would have created a duty for the other officers to intervene and stop it.

It's one thing to tell people in Austin there's no problem with police violence in his district. But folks back home who've seen this video on the evening news already know better. Chairwoman Senfronia Thompson has been working with all the police groups who will work with her on substitute language for these bills, and Mr. Schaefer will soon have an opportunity to do something about it.

Tarrant medical examiner who led Forensic Science Commission found to have misled jury in murder case

After an initial, failed run led by a tough-on-crime prosecutor, Texas' Forensic Science Commission has oddly been led by medical examiners, even though the agency doesn't regulate that profession and their offices are separate from forensic analysis divisions in most counties. One of these was Tarrant County medical examiner Nizam Peerwani, so Grits was interested to see this news:
A man who was sentenced to death in a 2004 Fort Worth murder case should get a new trial because of false and misleading testimony by Tarrant County Medical Examiner Dr. Nizam Peerwani, a judge has ruled.

In a 51-page finding, Tarrant County District Court Judge Mollee Westfall said Peerwani made “false, inaccurate or misleading” statements in at least 10 crucial elements of the prosecution case.

The timing of the judge's ruling is remarkable because Peerwani recently placed his longtime former top deputy, Dr. Marc Krouse, on administrative leave after an audit of 40 death investigations last year found he made 59 mistakes. Krouse was barred from conducting autopsies in homicide cases in November.

In the the complex and multi-faceted world of criminal-justice reform, forensics and medical examiners are roughly a fourth-tier concern: Police brutality, mass incarceration, an impoverished indigent defense culture, pretrial detention, overcriminalization of juveniles, and myriad other topics grab a greater share of the public's and advocates' attention.

But forensic science is a mess and as the Forensic Science Commission has been larded with new responsibilities including professional licensing, it has become less aggressive over time in using its platform to confront bad science.

Texas has a long, misbegotten history with corrupt medical examiners giving false testimony. Perhaps Peerwani's fall from grace is a good opportunity to begin appointing forensic scientists to lead the FSC instead of politically connected medical examiners? It was always an odd fit.

Now the question is raised: If Peerwani was willing to give "false, inaccurate, or misleading" statements to a jury in a death penalty case, should we accept pronouncements from the FSC during his tenure that exonerated allegedly flawed practices? 

Your correspondent stopped tracking the FSC closely after I left my gig at the Innocence Project of Texas: Forensics reform is an issue that requires professional-level engagement; it's hard to do as a sideline. But my impression is that progress has stalled. They've addressed much of the low hanging fruit but elided calling more commonly used forensic methods into question. And even where they've rebuffed old, flawed, forensic methods, the Government Always Wins faction on the Texas Court of Criminal Appeals has frequently refused to then excise them from the courts.

Between the Forensic Science Commission and its first-in-the-nation junk-science writ, Texas has created the infrastructure needed to root out flawed forensics. But its political will to do so seems to have dissipated since the heady days when DNA exonerations seemed to be happening every other month.

That's too bad because the slowing of DNA exonerations isn't because innocent people aren't being convicted anymore. Only 10 percent or so of violent crimes involve DNA evidence, so finding those few doesn't help the other 90 percent convicted on the same bad evidence. DNA exonerations exposed flawed policing methods - including less-than-reliable forensics - but for the most part, the system kept using them.

To the extent that's been because the Forensic Science Commission has been led by medical examiners who're too embedded in the system to critique it, it's probably time for that to change.

Saturday, April 10, 2021

Ridding South Texas of DPS part of forgotten populist agenda for the region

Many Democrats were surprised in November when their candidates lost ground in Texas border regions, but Grits was not: The party has no substantive agenda either to entice voters in rural areas or to address the unique challenges facing the sprawling mass of increasingly urban voters in the Rio Grande Valley.

Here's a topic state candidates could run on: From the Rio Grande Guardian, "Heavy DPS Presence in Starr County is Unnecessary." Starr County Judge Eloy Vera articulated populist criticisms of DPS' presence that would no doubt resonate with most border residents who don't profit from it:

Drive along U.S. 83 and they are parked every 100 or 200 feet, he said. Unless there is a speed chase they have nothing to do but write tickets for motorists with tail lights not working, the judge said.

“Our people are complaining that they are getting stopped and getting cited. So, even though that was not the purpose of DPS being down here, and I was assured that they were not going to be stopping people and giving a lot of warnings, that is what is happening,” said Vera, pictured above. “I think a lot of our people are being cited.”

Debtors-prison practices, including the state's Omnibase program which uses arrest warrants to collect debt, turn this over-policing into a de facto, year-round warrant roundup:

“The other problem this causes is on the warrant side. If someone has a warrant, and this is by statute, they (DPS) pick them up and they take them to the jail and that is putting a burden on our jail. Now, we don’t have beds for paying inmates because we have a bunch of ours.”

Vera said he wanted to reiterate that he is pro-law enforcement.

“I guess in a nutshell we certainly appreciate the law enforcement help that we are getting but again they must stick to what their mission is and that is to curtail drug and human trafficking. If someone has a lightbulb that is not working, there is not need to cite them or anyone else, in my opinion.”

For those who don't live in the region, these criticisms fly in the face of glowing praise from politicians for DPS' presence we routinely see in the press. DPS and the Governor will always be able to find locals to sing their praises because a small minority of people profit from their presence. But for average folks, it creates more problems, reported the Guardan.

The one good thing about having so many state troopers in Starr County, Vera said, is that they fill up the local restaurants and hotels.

“Our restaurants and hotels and those people, they love it because it is more business for us. But the average citizen that is barely making it, it is a big burden for them.”

These are not isolated sentiments:

McAllen Mayor Dim Darling has also spoken about the recent influx of DPS troopers to the Rio Grande Valley. Appearing on a Zoom conversation with U.S. Rep. Veronica Escobar that was hosted by the Texas Tribune, Darling shook his head and rolled his eyes when asked a question about DPS.

“I’ve always said they need social workers not DPS. And we have a lot of DPS officers. If you ride around near Chimney Park and all that, I feel sorry for them. Sitting out there and there really is not much for them to do from the standpoint they do not have jurisdiction,” Darling said.

Chimney Park in Mission is on the banks of the Rio Grande.

“If you really want to do it, at least maybe split it half DPS and half social workers. The social work could get done by the people that know how to do it and send the Border Patrol back out to protect the border like they want to do and they are paid and trained to do,” Darling said.

“It is just ridiculous. If you talk to the average Border Patrol person, they are miserable, they are not doing what they are supposed to do. They are not trained to take care of kids. They are not social workers.”

It's been long acknowledged DPS border deployments have had little impact on drug trafficking. Meanwhile, DPS has pulled all these troopers from the rest of the state, contributing to DWI enforcement statewide declining despite large population increases during this period, after their border deployment began. Here's a graphic from the 2020 Office of Court Administration Annual Statistical Report depicting the decline:

So there's your political messaging: DPS over-polices border communities, resulting in ratcheting up debtor's prison practices along the border, while reducing DWI enforcement elsewhere and making all Texans less safe. Hell, I've even got theme music for the debtor's prison angle:

It's been years - maybe since Carlos Truan, God rest his soul, was state senator from the Valley - since I've heard politicians talking about a populist agenda to benefit South Texas. In recent years, the debate's all been about preventing imaginary terrorists from sneaking across the border. But for a Democratic statewide candidate, it wouldn't be hard to find a justice-reform-and-infrastructure agenda that would excite South Texans: Scale back DPS' presence; build a new, job-creating South Texas port and another international bridge to take traffic pressure off the Houston port and I-35. Tack on Medicaid expansion, and bada bing, bada boom, there's an agenda that would speak to South Texas voters.

You're welcome, Gov. McConaughey.

Thursday, April 08, 2021

Abstract 'sweet spot' imagined on bail reform probably doesn't exist

Your correspondent has mostly stayed out of bail debates this year at the Texas Legislature for two simple reasons: 1) There are many opportunities for criminal-justice reform legislation that Grits believes have a real chance to pass, and 2) IMO there don't exist any opportunities for bail reform in the 87th Texas Legislature that reform-minded advocates will find acceptable or which will stand the test of time once federal courts finally address the issue.

There are three centers of gravity in the bail debate: Governor Abbott, whose positions largely reflect those of the bail industry and tuff-on-crime political ideologues like Andy Kahan; the 5th Circuit, which has at least three Texas bail cases bubbling up in its direction which will establish a new constitutional floor for Texas bail policy; and reform advocates who want to end money bail.

There are several dynamics that make a viable legislative outcome impossible in 2021. Advocates and the 5th Circuit cases are largely focused on bail issues surrounding indigent defendants and reflect concerns about excessive detention. By contrast, the bills filed by Sen. Huffman and Rep. Murr, which reflect approaches more in concert with the Governor's priorities, don't necessarily agree with one another but both reflect a desire to expand detention and to eliminate local options to release defendants pretrial. (There are other bail bills that are better, including one from Rep. Ron Reynolds, but they don't have a prayer while Abbott is Governor.)

Meanwhile, advocates themselves aren't all on the same page. Some think risk assessments are racist harbingers of evil; some think they're fine, or at least inevitable and not worth fighting over. Some want to find a sliver of agreement with the bills moving in order to retain a "seat at the table." Others, and Grits is in this camp, think nothing supportable can pass this year and we should wait for the 5th Circuit to lay the groundwork for what's next.

Essentially, there remain people who believe there's a Venn diagram of bail reform out there that looks like this:

Somewhere, theoretically, they imagine there's a policy no one has found yet that hits the sweet spot and if they just stay at the table long enough, maybe they'll discover it. The problem is, that's not the diagram. The IRL version of bail reform probably looks more like this:

The 5th Circuit cases and reformers are largely engaged in the same project: Reducing pretrial detention for defendants who can't afford bail. It's possible, even likely, that federal courts will choose a route to that goal that's less aggressive than abolishing money bail entirely, as most advocates would prefer. But there's more overlap than distance between the court rulings so far and what #cjreform folks would like to see happen. Certainly the courts are pushing local actors toward bail reform more aggressively than had ever been possible through the political process.

By contrast, Abbott and his legislative enablers are mainly concerned with expanding pretrial detention. Some of their proposals are so radical they'd require amending the Texas Constitution to accomplish. The tiny shreds of overlap between Abbott and the conservative wing of a bipartisan reform movement don't coincide at all with the project the federal courts have undertaken. There was a time several years ago when legislators could have headed off federal litigation by passing bail reform. But they failed to act so the federal judges moved forward and did their jobs. Now that ship has sailed. If the Texas Legislature passes a bill at this point, it will either address issues tangential to the federal litigation or likely be overturned by it in the near future. 

In that light, I don't see a sweet spot on bail reform in 2021 that's a) legislatively viable and b) conforms with what are likely to be new federal court mandates arriving in the next 2-3 years. At this point, bail-reform supporters in Texas should just oppose these bills en toto. For the moment, it's a can't-get-there-from-here situation.

Tuesday, April 06, 2021

Podcast: When is slavery profitable? Texas' "Law of Parties," why traffic enforcement doesn't make us safer, and breaking down the #TexasGeorgeFloydAct

Here's the April 2021 episode of Just Liberty's Reasonably Suspicious podcast. co-hosted by me and Mandy Marzullo. This is Part Two of our special on the Texas George Floyd Act (here's part one). Listen to it here:

We started with a discussion of the hearing on the Texas George Floyd Act and then broke down aspects of the bill we didn't get to in Part One:
  • Qualified Immunity, featuring interviews with Arif Panju and Keith Neely from the Institute for Justice (4:50)
  • Corroboration in Drug Cases, featuring an interview with Innocence Project of Texas founder Jeff Blackburn (13:45)
  • Use of Force and Duties to Intervene/Render Aid (19:29)
When is Slavery Profitable? Texas prisons operate several agricultural businesses in which they can't break even using prisoners' slave labor. Can you guess which ones they are? (27:40)

Texas Law of Parties: Mandy wrote a report on the topic earlier this year for the Texas Public Policy Foundation and we go through the details. (37:45)

Suspicious Mysteries: Traffic enforcement in Texas has plummeted over the last decade but road safety remains un-affected. What's going on? (47:24)

Find a transcript below the jump. Enjoy!

Saturday, April 03, 2021

Texas radically reduced traffic enforcement with no noticeable impact on road safety

What's the relationship between traffic enforcement by police and roadway safety? Arguably not much. Over the last decade, the number of traffic cases brought by Texas cops has plummeted, according to the Office of Court Administration's 2020 Annual Statistical Report:

Over the same period, though, roadway deaths per hundred-million miles first rose and then declined to pre-2010 levels, despite major population increases over this period coupled with radical reductions in police enforcement. From TXDOT's annual crash statistics:

Whatever drove that up-and-down trend, it doesn't seem to correlate with the trend in traffic enforcement. 

Question: If radically less traffic enforcement seems to have no noticeable impact on traffic fatalities, what precisely were we doing it for?

How to square these seemingly contradictory notions? Grits has long believed the disconnect can be explained because road safety has little to do with anything police do. Instead, it's largely a function of consumer habits, anachronistic road rules, and most importantly, traffic-engineering decisions. CityLab featured an essay this week making that point. It blamed a national spike in pedestrian deaths last year on "laws that lock in dangerous street designs and allow vehicles known to be more deadly to non-drivers."

CityLab suggested street-design issues had outsized influence. In particular, with fewer cars on the road in 2020, people drove much faster on wide, American streets. With more people working from home, thus more likely to be out walking, this structural defect caused pedestrian deaths to spike even as miles-driven declined.

That makes much more sense to me than looking for local causes to explain national phenomenon. Same goes for murder rates: Don't look for local issues like homelessness in Austin or bail in Houston to explain a murder spike that also occurred in Lubbock, New York, Los Angeles, and dozens of other US cities.

In Austin, partisans want to blame increased pedestrian deaths on the city's homeless policies. Somewhat more plausibly, others blame the problem on speeding. But in the bigger picture, it's that Texas cities where most people live are designed for cars, not people. For these and related reasons, Grits favors turning many of Austin's downtown streets into pedestrian-only thoroughfares and building out pedestrian infrastructure across the highway into East Austin.

Indeed, there are pedestrian-friendly capital projects all over the city that would improve quality of life and boost safety much more than comparable sums spent on cops.

I'm not surprised to see pedestrian deaths creeping up even as overall deaths-per-mile-driven declines. To me that likely reflects the changing nature of Texans' land use, as most people use their vehicles for shorter drives in urban settings and urbanization spurs a boom in pedestrians that challenges the state's car-centric urban planning culture.

These are predictable problems. And surmountable ones. And most of the solutions don't involve police.

Wednesday, March 31, 2021

For cruelty's sake: Texas prisons lose money every year to keep prisoners picking cotton, other field crops

Texas ended "convict leasing" - essentially hiring out prisoners as slave labor - just more than a century ago, but the prison system's Agricultural Division never really stopped so much as they brought the practice in house.

TDCJ officials have testified under oath that having prisoners pick cotton in the summer heat is "essential" to the agency's operations. But we learned recently the agency is actually paying for the privilege of doing so. It'd be cheaper to buy it on the open market.

Over the last five years, according to a recently released state audit, the agency lost money every year on cotton and other non-edible field crops, spending $6.83 million more over five years than they'd have paid to simply purchase the products.

At least one year, losses had been attributed to Hurricane Harvey. But it turns out, it's an ongoing problem in the same way the agency's food canning operation has been losing money.

Overall, 46% of products produced by TDCJ would have cost less if purchased on the open market.

It's worth mentioning, Texas is one of only three states where prisoners are paid nothing for their work, so we're essentially saying TDCJ can't turn a profit on these operations using slave labor.

If you can't make a profit with no labor costs, maybe you're not very good at business, or at least are in the wrong one. Perhaps the field-crop program just isn't such a great idea? 

By contrast, the agency's beef, pork and livestock programs earn significant profits, and the value of edible crops was much lower but at least greater than the cost of growing them.

Even so, profit shouldn't be the biggest concern and arguably prioritizing it is a holdover from the convict-leasing era. A few years ago, Ohio closed all its prison farms on the grounds that it made no sense to train prisoners for agricultural jobs when that's not the type of work most enter upon release.

Certainly that's true in Texas, too. Texas prisons aren't operating their Ag program because that's the best way to prepare prisoners for reentry. They're operating it out of inertia, because they've always done so, whether it makes penological, much less financial sense, or not. And maybe also, just for cruelty's sake.

BONUS: Check out [Cotton Picking Time in] Tulia, TX, a tune about TDCJ field workers written by my pal Jeff Frazier back in the day and sung by the great Malford Milligan.

Tuesday, March 30, 2021

Proposed no-knock warrant ban not quite a ban, but a good conversation starter

Your correspondent testified yesterday on behalf of a couple of bills ostensibly banning no-knock search warrants, although a committee substitute would allow them if the police chief signed off. Reps Gene Wu and Jasmine Crockett brought the legislation. Best news coverage was out of Killeen, where this issue has taken on a life of its own.

While Grits testified in favor, the bill as proposed is about the most minimalist reform imaginable and won't either a) ban no-knock warrants or b) solve the problems associated with them. In particular, it doesn't require officers to "knock"; only to "announce" themselves before they enter. According to Rep. Wu's layout to the committee, this would be satisfied by yelling "Police" then breaking down the door.

That's generally what happens now. Cops sometimes contrast "no knock" warrants and what's euphemistically called "quick knock" entry (which typically involves yelling instead of knocking). But as a practical matter, this is a distinction without a difference. Entry happens simultaneously with the announcement and homeowners aren't given time to answer the door.

In testimony, I suggested several additions to the bill that would improve it greatly.

First, the Legislature could actually set stronger standards for when no-knock warrants are allowable. I argued no-knock raids should be forbidden for drug offenses. Prosecuting drug possession cases is not worth the lives of the Dennis Tuttles, Rhogena Davises, or Breonna Taylors of the world. Rep. Wu made the point that the risks of such raids aren't justified for an amount of user-level dope that could be flushed down the toilet. 

The Killeen Police Department last year changed its policies to end no-knock raids on narcotics warrants after raiding the wrong home and getting an officer killed. The Legislature should extend that policy statewide.

Worst case: If officers knock and a dealer flushes drugs down the toilet, the dealer's business has been disrupted, the drugs are destroyed, and everyone lives to see another day. The small chance of a felony conviction doesn't justify the risk, and using the tactic for drug crimes infuses racial bias into the process.

Such a change might just end the practice. I can't think of the last time I heard of a no-knock raid in Texas that wasn't executing a drug warrant. They aren't used for much of anything else. (Police unions countered they think such busts are worth risking life and limb; I wonder how many legislators agree?)

Similarly, Grits argued that possession of a legal firearm should not justify no-knock entry. Too many Texans own firearms for that to be an excuse. In the Harding Street raid in Houston that killed Tuttle and Davis and left a police officer paralyzed (still waiting on ballistic reports to determine whether this was caused by friendly fire), alleged gun possession was part of the basis for the no-knock approval. But a) the officer named a different type of gun in the warrant than they actually had, and b) their weapons were by all accounts legal.

Another reform that would help these situations a lot was actually suggested in another form in a different bill at the same hearing. 

HB 2631 by Matt Krause and Jeff Leach requires a pretrial hearing to determine the reliability of jailhouse informants for most serious, violent offenses. This mechanism would provide an added layer of accountability in the search warrant context as well. In the Harding Street raid, Officer Gerald Goines allegedly fabricated an informant and likely did so many more times before that, according to post hoc investigations. It was a lie: His "snitch" whose testimony he portrayed to the judge in an affidavit didn't in fact exist.

Grits would like to see the law require similar reliability hearings before signing off on no-knock warrants, even with chiefs' approval. Is it too much to ask to verify that an informant exists and gave verifiable intelligence?

Finally, any reform legislation on this topic should include a data-collection component. You can't manage what you don't measure and we know very little about how often no-knock or forcible entries occur, under what circumstances, how many people (including officers) are injured or killed, how many result in finding contraband or come up empty. We just have no information on the topic.

If Texas is going to pass the most minimalist restriction on no-knock warrants and otherwise allow them to continue, we should at least include data collection to illuminate these discussions in the future.

I'm grateful to Wu and Crockett for raising the issue, even if their bills don't go as far as Grits might prefer. The conversation has to start before reform can occur, and this hearing was at least a conversation starter.

Tuesday, March 23, 2021

If conservatives are liberals who've been mugged, maybe liberals are just conservatives who enjoy government power a bit too much

Grits must admit, I don't get it. For years, Republicans in Texas have complained about high taxes, which at the local government level are largely driven by public-safety budgets. Then, over the last couple of years, Texas Republicans including the Governor have become obsessed with homelessness in Austin after the city decriminalized their public existence.

So when the city of Austin ratcheted back the police department budget by 4.6 percent and spent the savings on EMS and services for mental illness and homelessness, on its face one would think that would fall into a policy realm Republicans could live with: Reduce government spending and address Austin's homelessness problem.

Maybe state leaders felt outdone by Austin's budget cutting: After all, when they faced a budget contraction in 2017 much less severe than last year's COVID-based revenue decline, the Governor signed a bill reducing the Texas Department of Public Safety's budget by 4 percent. But no one then raised concerns state leaders wanted to "defund police."

Now, though, reversing three-generations of small-government, anti-taxation rhetoric, the Texas GOP has entered a Bizarro World where it seeks to punish cities that reduce budgets for public employees they favor (in most cities the highest paid type of public employee). Ronald Reagan must be spinning in his grave.

Consider three bills up this Thursday in the House State Affairs Committee:

HB 1900 by Goldman lets the Governor determine if a city defunded its police. There's no metric or standard for that in the bill. Once that determination is made, previously annexed areas can seek de-annexation elections, so in Austin's case, the city council could lose a bunch of Republican voters on its western fringe who are the main support for what passes for conservative candidates in this city. That improves the viability of more liberal candidates, meaning you get a Mayor Casar instead of a Mayor Adler. Again, this benefits/punishes whom, exactly?

HB 1900 would further freeze property taxes and electric rates of cities that "defund" police. Ironically, grassroots conservative activists from around the state have been calling on the Legislature to aggressively freeze local property taxes for years and voters of all stripes hate electric rate hikes. Will this bill now give them the mechanism they need to achieve their dreams? Will we begin to see cities around the state cutting police budgets because their constituents support a property tax and electric rate freeze? It's not out of the realm of possibility.

HB 2362 by Harris similarly restricts government spending at agencies which "defund" in ways that conservatives around the state have called for for years. From a grassroot conservative's perspective, it's like Austinites are being rewarded for defunding police with lower taxes. Why wouldn't voters in Fort Worth or Midland look at their own local tax situation and think, "I'll take a little of that"?

HB 3151 by Leman appears to assess whether cities are defunding but does not punish it.

Your correspondent backed Ronald Reagan in my first presidential election back in 1984, so I feel competent to compare the ideology of "Reagan conservatives" to what's happening today. There's not much comparison. The idea that it's "conservative" for state government to pass a law mandating permanent local-government budget increases beggars belief.

Back in the day when I fancied myself a Reagan Republican, we had a word for that philosophy:


Sunday, March 21, 2021

Committee that will hear the #TexasGeorgeFloydAct has seen concerning police episodes in their districts

Art by Nia Palmer
On Thursday in the Texas House, the Homeland Security and Public Safety Committee will consider the Texas George Floyd Act (HB 88 by Senfronia Thompson). Because state and federal roles in regulating law enforcement are so different, this is a radically, almost completely different piece of legislation than the federal George Floyd Act (banning chokeholds is the main crossover) and must be evaluated on its own merits. (Mandy Marzullo and I are doing a 2-part podcast explaining its components; here's part one.)

Grits is aware of people coming in from all over the state, including dozens of groups and several family members of police brutality victims. In an era of COVID-driven minimalism at most Texas legislative hearings, this is shaping up to be one of the biggest events of the session, on criminal justice or any other topic.

This is an interesting committee to be hearing the bill. All of the members have witnessed recent, significant incidents in their districts that should pique their interest in proposed police reforms.

For example, Sam Harless, a Republican from Spring, is strongly pro-police. But one of the most egregious TX cases of cops killing a man by constricting his breathing is out of his district. A jury awarded the family of Jamail Amron $11 million but last year judges took it away.

Republican Matt Schaefer out of Tyler represents Bullard where, last fall, cell-phone video captured police officers violently hurling a handcuffed teen to the ground in an episode that went viral.

Another Republican on the committee, Tony Tinderholt, represents Arlington where, last September, a police officer shot at an unleashed dog and killed the owner instead. Arlington witnessed anti-police brutality protests for the first time last year in many years.

Speaking of dogs another Republican on the committee, Cole Hefner, represents Rains County where a deputy shot a resident's dog in an episode that adamantly riled his district and resulted in legislation mandating additional police training.

Although Marvin Scott died in the Collin County Jail, he was a resident of Frisco which makes him a constituent of committee member Jared Patterson.

Art by Nia Palmer
Freshman Democrat Eddie Morales represents Maverick County, where last fall deputies assaulted, pepper sprayed and handcuffed Ernesto Flores for filming them with his phone, reminiscent of Marco Puente's Keller, TX case discussed in the podcast.

Democrat Rhetta Bowers represents part of Balch Springs, which has been fighting in court to avoid responsibility after one if its police officers shot Jordan Edwards in the back of the head. (The officer, Roy Oliver, was later convicted of murder.)

And the committee chairman, James White, is a black Republican US Army veteran whose grandfather was murdered by a white deputy constable after a fender bender in Houston during Jim Crow. Before now he chaired the Corrections Committee and he's probably as well-versed in criminal-justice topics as anyone in the House.

Each of these committee members also have extensive ties to law enforcement, so these stories don't guarantee support for the #TexasGeorgeFloydAct. But if they're paying attention to their districts, these are issues that matter a lot to their constituents.

This post was adapted from a Twitter thread. Correction: An earlier version of this stated Chairman White is an ex-marine. He is a former soldier in the US Army. Grits regrets the error.

Saturday, March 20, 2021

Arrested for pot, then dead; capital murderer sent out to write tickets; fired cops won't stay fired; bail-legislation updates, and other stories

Here are a few odds and ends that merit readers' attention while mine is focused at the Texas Legislature:

Say his name, folks: Marvin Scott. Arrested for marijuana by the Allen Police Department, the 26-year old man died in the Collin County Jail on Sunday while being forcibly restrained by seven detention officers. Scott was schizophrenic, but its unclear if he was being treated at the jail under mental health protocols. This is a bad one. Over marijuana!

Capital murderer sent out to write tickets: Dallas PD suspected an officer of two capital murders but left him patrolling the streets for two years, ostensibly so as to not compromise their investigation. When the new chief came on and learned of the situation, the officer was immediately arrested. Great reporting from Cassandra Jaramillo.

Nightmarish outcome in Houston: an officer fired at a carjacking suspect and hit a one-year old baby in the head. At last report, the baby, Legend Smalls, was still alive and fighting for its life.

Meet the new chief, same as the old chief: Houston edition. Acevedo's out. Finner's in. Experience in Austin suggests nothing much will change if Art's leadership team is left in place. MORE: See critical retrospectives on Acevedo's tenure from Texas Monthly and the Houston Chronicle. Was particularly pleased to see this quote from Neal Manne in the TM story: “only the for-profit bail bondsmen spread more falsehoods and scare stories about bail reform than Chief Acevedo.” Tbh, he probably spread more falsehoods and scare stories than the bail industry itself; his real competition on that front is Andy Kahan, with Kim Ogg waiting in the wings to adopt his role now that Acevedo's departing.

Garbage in, different garbage out. Crime data was already a disaster and the process of improving it requires us going through a rough patch during which the data becomes incomparable/unusable. We are entering that period now. An avalanche of articles and books will be written in coming years on the profound implications, on many vectors, for the data-collection changes involved in shifting from UCR to NIBRS. Today we can only speculate. Should be better when the transition is complete, but a rough row to hoe from here to there.

Bail reform bills not ready for prime time. With bail reform litigation in Dallas headed toward its denouement, Grits considers 2021 an inopportune time to change Texas' pretrial detention system: Whatever is done may be swept away by federal action and, by 2023, the 5th Circuit likely will have established a constitutional floor on bail that could guide Texas in upgrading its system. Even so, the Governor's bail legislation is moving in both chambers, with a hearing on SB 21 in the Senate Judiciary Committee on Thursday.  Here's coverage from the Texas Association of Counties. Notably, the hearing focused on people who murdered while out on bond. But Joan Huffman's bill mainly restricts use of personal bonds. It turns out, 93% of the killers referenced had paid their way out through the traditional bail system, Republican Judge Mike Fields told the committee. That's one reason why the Harris County Justice Administration Division last month argued, in a presentation to the commissioners court accompanied by this detailed memo, that bail reform didn't explain recent crime spikes. JAD told the senate committee the bill as written would require the county to violate federal court orders. At one point, Sen. Huffman seemed to acknowledge the bill was so broad it could impact Class C cases, promising to narrow it before it left committee. Truth is, this effort isn't ready for prime time and Texas would be better off waiting on the 5th Circuit.

Fired cops won't stay fired: A reminder, half of cops fired at the Fort Worth PD are put back on the force by an arbitrator. In San Antonio, that figure is 70%.

Visitation reinstated! The Texas Department of Criminal Justice is reinstating in-person visits. This is big news, though it remains to be seen what restrictions will apply. It's been a year!

What does the badge mean, Tim? Turns out, Tim Fleck is way cooler than I thought he was. From his pseudonymous 1981 underground hit, "The Badge Means You Suck":

The men who killed Joe Torres
Never went to jail
The sniper who picked off Carl Hampton
Never paid any bail
The killers of Milton Glover
They might be pulling you over tonight
And if you happen to get shot
Well, I guess you started the fight

CORRECTION: This post originally included an item about the death of Jamail Amron in which I misstated the grounds on which his case was dismissed by the 14th Court of Appeals. A commenter corrected me and, rather than rewrite it, I removed the item since a more accurate account would be a) too involved for a roundup post and b) irrelevant to the original point. I'd misinterpreted from the press coverage and regret the error.

Monday, March 15, 2021

Data: When Texas ↓ pot prosecutions, the system focused more on violent crime

Grits has been tracking what I've called "The Great Texas Hemp Hiatus," referring to the Texas Legislature's legalization of industrial "hemp," requiring a THC test to prosecute for marijuana possession. It was ostensibly a legislative accident, but it appears the change is going to stick: No legislation was filed to remove the testing requirement when the bill filing deadline passed on Friday.

From the Office of Court Administration's 2020 annual statistical report, here's how that impacted marijuana prosecution in Texas:

In 2018, by contrast, there were 87,618 misdemeanor drug cases in 2018. That's a 55% drop from before the new testing requirement was implemented.

Marijuana has been one of the most common charges Texans are arrested for in recent years. In 2020, though, more people were arrested for Class C misdemeanors at traffic stops (41,731) than were prosecuted for marijuana possession.

Polling consistently shows most Texans favor full-blown legalization of marijuana for recreational use, and an even greater number endorse more widespread legalization of medical cannabis. So for the average Texan, it's a big yawn. They wouldn't care if that 39,000 number dropped to zero.

For the system, though, it's a big deal. Drug arrests gave 80,000 cops across Texas at more than 2,000 agencies something to do when crime declined but cities kept hiring more of them. From the 2018 OCA Statistical Report:

In 2020, by contrast, drug cases' contribution to misdemeanor caseloads had dropped from first to third in the prosecutorial pecking order on the misdemeanor side, replaced after DWI by "assault."

So when police and prosecutors reduced emphasis on marijuana prosecution, the result was an increased focus on violent crime as a proportion of how they spend their time. This seems like an outcome most Texans would support.

Make Grits Philosopher King and Texas would legalize pot for recreational use, just as 14 other states have done, or at least decriminalize, as have another 16. In the scheme of things, marijuana is safer than alcohol by a country mile, and research on the substitution effects for everything from booze to opioids makes me wonder if its role as an agonist might reduce overdose and/or DWI deaths. But Greg Abbott and Dan Patrick have declared that option off the table. Until then, Grits supports narrowing the funnel facilitating criminal prosecutions for pot at every level. Texans are less safe, not more, when the government criminalizes markets this large with no public-safety imperative driving it.

Friday, March 12, 2021

For journalists: How to read a Texas racial profiling report, or, a case study demonstrating discrimination through police search patterns in Amarillo

Grits has started to see local reports on law enforcement racial profiling data from Texas traffic stops, but it's evident most local reporters don't understand what they're looking at. So they ask the department what it means, the chief soft pedals it, reporter files the story, bada bing, bada boom. That's how a local Amarillo TV station covered the report. Reporters seem to have gotten into a habit of doing the same simplistic story every year, even as the data has improved and much more can be gleaned. 

So Grits decided to perform a brief case study on what reporters can learn from a single department's racial profiling report. Grits has already examined the data at the macro level; now let's look at the micro, using Amarillo PD's report as an example. 

Black folks are slightly overrepresented among drivers stopped by police compared to the Amarillo population. A bit over 6% of Amarilloans are black while 11.1% of drivers stopped in 2020 were black. But because Amarillo PD patrols highways that cut through town and people who don't live in the jurisdiction drive on their streets, it's impossible to say with statistical certainty if the number of stops is disproportionate. To be clear, I believe it is, but I've been round this block for 20 years and there's no denominator to be had which doesn't pose some significant statistical problem.

This is what the Amarillo chief meant when he said it's impossible to tell if racial profiling occurred without a "better way of establishing the demographics of the driving public." He's right. Sort of.

But he's not revealing the full picture, and the reporter didn't know enough to demand he do so. If you're trying to identify racial disparities, look at search data, not overall stop rates. That's because for searches and arrests we have an incontestable baseline or denominator: the overall pool of people stopped.

In Amarillo, we do see disparity on this metric. Black folks represented 11.1% of people stopped but 18.3% of people searched. Black folks were also subjected to "consent" searches more frequently than their share of stops, making up 18.6% of all such searches. So Amarillo cops are both seeking and performing searches on black drivers more often than white ones.

The chief's concern about demographics of drivers vanishes once you drill down to this level of detail.

The number of people searched at traffic stops in Amarillo dropped by nearly half in 2020 compared to 2019. Interestingly, searches dropped more than stops, which declined but not nearly that much. Is this because of officers social distancing at stops, a change in policy, or some other reason? I can see dredging up a story on that topic on a slow news day. ;)

The majority of times Amarillo cops searched vehicles at traffic stops, they found nothing (56% of the time). That's pretty typical statewide.

Some data is easier to read on the TCOLE spreadsheet than in tables in a pdf file, particularly regarding contraband results from searches, where there are columns on the spreadsheet breaking out when contraband was found but no arrest was made that aren't in Amarillo PD's prose report.

Notably, though black people were more likely to be searched, Amarillo cops were more likely to find contraband when searching white drivers. Contraband was discovered 43% of the time white drivers were searched but just 38% of the time they went through black people's cars.

This is a key racial profiling indicator. If cops are searching black folks half again as often as their proportion among drivers but disproportionately finding contraband more often on white folks, that signals a discriminatory pattern.

This is one of the key, new calculations made possible by the 2017 Sandra Bland Act, but Texas journalists haven't figured out how to use the new resources available to them.

Searches of black people in Amarillo found contraband 35 times, which would not be too far out of line compared to the proportion of times they were searched (even though it's FAR greater than their proportion of Amarillo's population). Even so, 31 of the 35 times contraband supposedly was found in a black person's car, it was so minor they weren't arrested and were sent on their way. Couple that with the majority of arrests that found nothing, and that's a LOT of drivers subjected to pointless fishing expeditions.

By comparison, contraband was found on white folks in 105 searches, and the driver was arrested in 10 of those episodes.

From a journalistic perspective, I'd consider this a big story. Sure, the racial disparities in arrest rates aren't big. But if 90%-ish times when contraband is found, the driver is let go, what's the point of searching to begin with? Either the definition of "contraband" being employed is so broad as to include things that aren't illegal, or Amarillo cops are being awfully lenient when they find evidence of crimes. IRL, Grits suspects it's the former; this data pattern is a bit of an outlier but most agencies release the majority of drivers on whom contraband is found.

Statewide, black folks were slightly more likely to be arrested than white folks when contraband was found (38% compared to 33%), but the percentage for Hispanic folks was even higher (40%). Big gaps in those categories could mean one group is receiving lenient treatment and might be an avenue for local journalists to pursue.

Another important story from these reports: Amarillo PD arrested 115 drivers for a Class C misdemeanor traffic violations in 2020. With 215 total arrests at traffic stops, more than half of arrests at traffic stops were completely avoidable and likely represent pretext stops where the officer is fishing for some other crime. Those would cease if the Texas George Floyd Act became law. Statewide, Class C arrests were only 21% of the total, so this is happening more in Amarillo than elsewhere. What reporter wouldn't want a local news story linked to pending state legislation heard in the next few weeks? Well, it's available to you, if you know what you're looking at.

Notably, black folks made up just 11 of 115 people arrested for traffic violations at Amarillo traffic stops in 2020, so the Class C arrest ban in the Texas George Floyd Act isn't particularly a racial issue in Amarillo. Or black folks in Amarillo simply "consent" to searches before facing arrest, as noted above. Regardless, I'm pretty sure white Amarilloans don't appreciate being arrested for petty BS any more than black folks do. 

The maximum penalty for Class C misdemeanors is only a fine, not jail time. By arresting someone for a Class C and taking them to jail, police are inflicting a punishment more severe than a judge or jury could do.

Amarillo PD reported using force resulting in serious bodily injury at only two 2020 traffic stops. If local reporters don't know those cases are, maybe someone should look them up? Could be a story there.

There are many reasons for justice-beat reporters to examine Texas racial profiling data now that it's been enhanced via Rep. Garnet Coleman's 2017 Sandra Bland Act. In some instances, yes, reporters may find notable racial disparities: In Amarillo, for example, it appears black drivers are disproportionately searched compared to how often they're pulled over, are asked for consent to search more often than other drivers, and have contraband discovered less frequently than do their white counterparts.

But there are also news stories buried in these data beyond racial discrimination: Most immediately in relation to the Texas George Floyd Act, Class C misdemeanor arrests (both traffic and municipal ordinances), and use of force. It also might be informative to compare data from nearby jurisdictions. Often, as demonstrated in this example, differences in search practices from department to department are more significant or telling than the statistical differences among the races.

Not everything important or interesting in this data is about race. Indeed, the report answers basic questions few reporters ever consider: how many stops are made overall? How many of those people are searched? How many are arrested? How often is contraband found? Turns out, even overall traffic-stop numbers change significantly year by year. 

The decline between 2019 and 2020 stop levels is understandable, but what explains the near doubling from 2017-2018? Traffic stops were declining during this period statewide. If I were a local reporter in Amarillo, I'd be looking into that story, which is interesting irrespective of racial breakdowns. 

In a town of fewer than 200,000 people, both the doubling of traffic stops to the 2018 apex and the less-than-might-be-expected decline in 2020 could be significant. Digging around in the whys of it, combined with poking around TCOLE's statewide spreadsheet and a little traditional legwork, could generate many different types of local stories. This information isn't available from any other source.

Forensic hypnosis largely dead in Texas but junk evidence still travels like zombies through the court system thanks to the CCA

Exciting news: Texas DPS has ended the use of forensic hypnosis among the Texas Rangers, the Forensic Science Commission's Lynn Garcia told the Texas Homeland Security and Public Safety Committee yesterday. Your correspondent broke the news on Twitter; see Dallas News coverage here

The Dallas News had previously reported that the Texas Rangers and the Harris County Sheriff's Office were the last agencies in the state with peace officers carrying hypnosis certifications. Those must be renewed every two years. But Harris County Sheriff Ed Gonzalez said on Twitter his agency doesn't use it anymore, either, so it's possible the last practitioners of forensic hypnosis in the state are all now offline. Certainly the most prolific among them at the Texas Rangers have been permanently benched.

There was a time not long ago when this practice was more widespread; today, it's largely a source of derision and few if any agencies practice it any longer. It was the junkiest of junk sciences I've ever encountered, and Grits has seen some.*

Still, discredited though it was, Texas officials weren't about to ban this junk science technique from the courtroom. The Forensic Science Commission determined they had no jurisdiction to consider hypnosis. Legislation was filed in the Texas Senate in 2019  to banish the practice from courtrooms, but, the committee chair wouldn't give it a hearing. Then the technique was challenged under Texas' junk-science writ, which should have been the end of it. But it was a death penalty case and the Government Always Wins faction on the Court of Criminal Appeals flexed their muscle, declining to apply the writ without giving an explanation.

After the US Supreme Court declined to take up the issue - unsurprising, since the junk-science writ is a state law with no explicit federal skin in the game - efforts to banish forensic hypnosis appeared to be stymied.

The decision by DPS to end the practice came like a bolt from the blue; most folks thought they wouldn't end it unless they were forced to do so. Apparently, someone internally simply decided the technique could no longer be justified. I'd love to know the backstory (off the record tips welcome!). The hypnosis program apparently ended in January but the agency never announced it.

Your correspondent takes some pride at raising the profile of this issue. In the Texas political realm, the topic was first raised in a 2017 Reasonably Suspicious podcast segment brought forward by my co-host Amanda Marzullo on the Charles Don Flores case, the one that SCOTUS later declined to review.

This piqued my interest and Grits followed up with a research primer on the subject that exposed the charlatanism underlying the practice. I purchased a copy of the book used to train forensic hypnotists under TCOLE's training curriculum. It included favorable references to occult practices like "automatic writing," portrayed memory as the equivalent of a videotape that hypnotists could simply play back, and encouraged "age regression" to recall long-ago events. Mandy and I began to follow the Flores case on the podcast.

I pitched the story to Lauren McGaughy at the Dallas News who ably picked up the ball, first publishing a preliminary assessment in 2018. This raised the profile of the topic in state government - helping me convince state Sen. Juan "Chuy" Hinojosa to file his roundly ignored legislation in 2019. Meanwhile, the courts were mimicking the iconic monkeys who see, hear, and speak no evil. 

Then, last year, the Dallas News published a major two-part feature McGaughy co-reported with Dave Boucher called "The Memory Room." They spent months pursuing open records requests and dove deep into DPS practices and TCOLE records, revealing details no one outside those agencies knew. It was hard to imagine how responsible decision makers, after reading this damning assessment, could continue to let cops hypnotize witnesses.

Still, Grits wasn't sanguine the Legislature would even take up the topic; the same chairman who wouldn't give the bill a hearing still runs the committee, and the Court of Criminal Appeals' failure to take up the cause seemed to have shunted the issue to the back burner for state government. 

DPS ending its hypnosis program changes the landscape, surprising all observers and opening up new opportunities. If neither they nor HCSO any longer use hypnosis, Texas can now shut down the practice entirely. Reported McGaughy, "Texas remains the only state known to have an active certification program for law enforcement officers to learn hypnosis and is also the home to likely the nation’s only extant police organization for investigative hypnotists."

There's no need for that certification program now and the Legislature should eliminate it as part of the TCOLE Sunset bill. This is EXACTLY the sort of thing the Sunset process was created to do: Extinguish outdated, anachronistic, and unnecessary programs.

Here's the rub: Even if the Legislature ends the certification, there are still numerous cases - nobody knows how many, but including Mr. Flores' death-penalty case - marching forward through the system like zombies based on past convictions secured using this practice, and more people locked up in TDCJ or on parole whose convictions were tainted by the same junk science.

I'm not a lawyer but Grits doesn't know if there's any way to help those folks if the CCA won't apply the junk-science writ. I suppose the Forensic Science Commission's jurisdiction could be expanded to evaluate this now-mostly-dead forensic method so that courts would have a basis to revisit it. But that's an open-ended, speculative process that could take years. It seems like waste of time when the CCA could already have done the right thing, and still could.

Grits' takeaways: The Texas Legislature should both abolish the hypnosis-certification program (TCOLE's Sunset review is remarkably well-timed for this purpose) and expand FSC jurisdiction to evaluate forensic hypnosis. The Texas Rangers may have stopped using this particular junk-science technique, but the topic won't finally go away until the courts do.

* I was Policy Director at the Innocence Project of Texas for 8 years and conceived of and negotiated with prosecutors to pass Texas' junk-science writ. The only bogus "science" I've seen that's arguably as junky as forensic hypnosis was dog-scent lineups, and the CCA got rid of that abomination.

Monday, March 08, 2021

On Class C arrests and a "duty to intervene," James White on "colonizing" Austin PD, and Anthony Graves on how bad prison food ruins prisoners' health: Part One of Special Podcast on #TexasGeorgeFloydAct

The Reasonably Suspicious podcast is back after a largely health-driven hiatus. Mandy and I are diving back in with Part One of a special, two-part episode on the Texas George Floyd Act, HB 88 by state Rep. Senfronia Thompson. The episode features new, original music created for radio ads and online promotion of the George Floyd Act, as well as interviews with Rep. Thompson, Homeland Security and Public Safety Committee Chair James White, and exoneree Anthony Graves, who came on to talk to us about the TDCJ prison budget. We also discuss the existence of "Schrodinger's Defendant," comparable to "Schrodinger's Cat": A concept I think may evolve into a more robust critique going forward. 

The first half hour of the show takes a deep dive into the issue of Class C misdemeanor arrests, using the case of Dillon Puente out of Keller, Texas to spotlight the problem. Dillon was arrested for a wide right turn, but really so police could search his car. (Spoiler: The search found nothing, but before they were finished they'd arrested him and pepper sprayed his Dad.) We also spoke to James White about a case out of Plano where a young black man on his way home from Walmart was arrested during the recent Snowpocalypse. 

Chairman White, whose committee oversees the Texas Department of Public Safety, also took a moment to discuss Gov. Greg Abbott's suggestion that DPS "colonize" the Austin Police Department, in his words. Austin folks will want to hear this.(35:58)

Finally, exoneree Anthony Graves, who spent 18 years incarcerated in Texas prisons before being proven actually innocent, spoke with us about the need for the Legislature to boost funding for prison food and treatment that helps prisoners reenter society. (41:55)

Find a transcript below the jump. Enjoy!

Sunday, March 07, 2021

Bootlicking city officials a barrier to police reform

As long as politicians let police dictate the limits of reform, there will be no significant reform and the same problems inevitably will recur. When the El Paso City Council approved its legislative agenda three weeks ago, the police department was given de facto veto power. Reported KTSM-TV:
George Floyd portrait captioned "I Can't Breathe," by Nia Palmer
The El Paso Police Department has proposed the council consider opposing the following:
  • Prohibiting neck or throat restraint, unless allowed in extreme circumstances
  • Removal of qualified immunity
  • Elimination or revision of asset forfeiture
  • Prohibition of no knock entries, unless adopted under TCOLE policy
  • Unfunded mandates
  • Disciplinary matrix
  • Cite and release mandates
The El Paso Police Department supports
  • Policies around the department’s policies
  • Use for force policy promulgated by the TCOLE
  • De-escalation policy promulgated by TCOLE
  • Release of police employment records promulgated by TCOLE
  • Duty to intervene
  • Additional reporting requirements for use of force, no knock entries
  • Consent to motor vehicle search, provided that motor vehicle recording is allowed
  • Additional training, provided that does not result in significant increase in costs, unless state provides resources and funds.
In the end, on every point "the council voted in-line with the El Paso Police Department’s recommendations for issues police support."

Portrait of Jorge Gonzalez, killed by Hidalgo County Sheriffs in 2020. By Nia Palmer.
Other than additional reporting for use of force and no-knock entries, which would be a significant get, the police department's "reform" agenda largely amounts to acquiescing to non-binding policy recommendations while continuing more-of-the-same policing. They oppose even what most people consider the "low hanging fruit" like ending chokeholds or instituting a disciplinary matrix. After episodes like George Floyd's killing in Minneapolis and the horrendous treatment of Jorge Gonzalez in Edinburg, I'm amazed police are still defending neck restraints. But apparently we still have to have that argument.

In addition, bowing to pressure from the department, "The council decided to remain neutral in the deliberation of the proposed George Floyd Act unveiled by the Texas Black Caucus last August."

Pay close attention to local politics in most Texas cities and you'll find civilian control of police departments is an in-name-only arrangement. Cops dictate to city councils, not the other way around. That's clearly what happened with El Paso's legislative agenda. It's likely what's happening in your town, too.

Saturday, March 06, 2021

A proposed resolution to the conflict over UT's "Eyes of Texas" (a #txlege resolution, that is)

I need to find a Texas legislator willing to file this resolution. Who would y'all suggest?

A Resolution to Change the University of Texas 

School Song to Something That Sucks Less

WHEREAS: Many students at the University of Texas including a preponderance of players on the school's vaunted football team have protested the school song, The Eyes of Texas, because of alleged racist origins and undertones; and

WHEREAS: The Eyes of Texas may be racist but is definitely creepy with Orwellian, totalitarian overtones; and

WHEREAS: A school song that sounds like it's celebrating a government-backed Peeping Tom maybe isn't the best idea; and

WHEREAS: The line saying "you cannot get away" sounds particularly rape-ey; and

WHEREAS: Having young children sing "Do not think you can escape them" produces nightmares later that night; and

WHEREAS: The undisputed minstrel origins of the Eyes of Texas make it hard to defend; and

WHEREAS: The even more undisputable fact that it's a dull, inferior and boring song, put to the tune of a trite and anachronistic anthem, makes its general cultural value equally difficult to defend; and

WHEREAS: The underlying tune, "I've Been Working On The Railroad," is an especially vapid children's song even children do not like; and

WHEREAS: Chinese "coolies" did not work on the railroad "to pass the time away"; and

WHEREAS: Nobody ever came up with a great, UT-specific version for the "Someone's in the kitchen with Dinah" bridge, which is the best part of the song, so Longhorns just sing the boring part; and

WHEREAS: Traditionalists who want to be represented by a boring, anachronistic song will still have the official state song, Texas Our Texas, and may sing it to their heart's content, preferably outdoors in some park or cow pasture where they won't bother neighbors,

BE IT RESOLVED THAT the great state of Texas should commission Ray Wylie Hubbard to write a new school song for the University of Texas, the approval of which will be based on an up or down vote by the UT-Austin student body; and

BE IT FURTHER RESOLVED that Ray Wylie can't just phone it in by submitting "Screw You, We're From Texas," or "Snake Farm," but must produce something original and relatively non-profane; and

BE IT FURTHER RESOLVED upon approval by the UT student body, the University of Texas athletic program must pay Mr. Hubbard whatever they had to pay the last football coach to buy out his contract and leave town,

The Texas Legislature hereby commissions Ray Wylie Hubbard to write a new school song for the University of Texas that sucks significantly less than the current one.

May God Bless Texas.

Thursday, March 04, 2021

Arrests for minor offenses continued at Texas traffic stops in 2020: New #SandraBland Act data still shaky on racial breakouts, but shows scope of arrests, police use of force at Texas traffic stops

Texas' 2020 racial profiling data from millions of Texas traffic stops was finalized this week at the Texas Commission on Law Enforcement. This was the first year racial breakouts were included in new data collected under Rep. Garnet Coleman's 2017 Sandra Bland Act. I'd posted preliminary data on Twitter before reporting was complete, but now we have the full dataset for 2020.* What does this tell us about Texas law enforcement's work in the field?

It is starting to tell us quite a lot about what police readily admit are "pretext" stops. Police stop people for minor traffic infractions if they think something else might be going on. If you are so stopped, and you don't agree to a search, you can be arrested for that minor traffic infraction so they can do their search without your approval. More than 41,000 people experienced such an arrest last year. 

That said, we still don't have great data on race: Various racial categories separately total more than the total number of stops recorded. Likely much of this is because of crossover between white and Hispanic categories, but there are many reasons racial identifications are problematic.

It was also a weird first year to gather racial data. With COVID driving down traffic everywhere, traffic stops were down 35% statewide, from 9.7 million in 2019 to 6.3 million in 2020.

Still, that's a lot of stops When police search, are they finding much? Usually nothing. And when they do, it's usually insignificant contraband that doesn't result in an arrest, according to the data.

Texas cops conducted searches 362,113 times in 2020, or at 5.8% of stops. That's about one out of every 17 time they pulled someone over. Of those, 27% were based on the drivers' consent.

In less than half of searches, contraband was discovered - 158,815 times in 2020 or 43.6% of searches. Most of what was found was drugs or paraphernalia (69%). Remarkably, three out of five times contraband was found, no arrest was made (93,998 cases). One supposes in these cases police found small amounts of marijuana, rolling papers, or items that weren't in and of themselves incriminating like cash or legal weapons. 

Arrests occurred at traffic stops 171,976 times in 2020, or at 2.7% of stops. Of those, 24% of arrests were for Class C misdemeanors (traffic infractions are generally Class Cs); another 24% were for outstanding warrants; the rest for penal code violations.

Class C arrests, which would mostly be banned under bills at the Texas Legislature like HB 830 and the Texas George Floyd Act, happened 41,731 times in 2020, down from 64,100 times in 2019. 

Physical force resulting in serious bodily injury was used against people 5,141 times at Texas traffic stops in 2020, or about once every thousand stops.

Black folks represented 24.6% of force victims compared to 16.7% of drivers stopped.

For the third year running, Houston PD came in on the high end of use-of-force rates at large departments. HPD officers used force 82.6 times out of every 10,000 stops; the statewide average was 10.7. At San Antonio PD, by comparison, force was used at 3.4 out of every 10,000 traffic stops; at Austin PD it was 5.4.

Out of 2,500+ agencies statewide, there were 19 agencies with higher use-of-force rates than Houston PD. But all were small agencies making fewer than 4,500 traffic stops; together, those 19 departments reported 388 force incidents. HPD, by contrast, made 217,288 stops in 2020 and reported 1,795 force incidents to TCOLE.

Complaints were made 4,047 times in 2020 based on officer behavior at Texas traffic stops, but officers were only disciplined 10 times as a result.

These are a lot of datapoints, and there's a lot to think about here. Why has Houston PD  seen more force at traffic stops than other large agencies? Why do HPD's officers arrest for Class Cs at much lower rates than the Harris County Constable in Precinct One? 

But the big finding on searches is unsurprising. Most of the time, when officers search drivers or arrest them because they think something else is going on (also called "proactive policing"), the biggest "find" is either 1) a traffic warrant for unpaid tickets; 2) contraband so minor it isn't worth charging over; or most commonly, 3) nothing at all, meaning the underlying arrest and trip downtown were utterly pointless.

This is the "tool in the toolbox" that police agencies are so frantic to save, but the volumes of arrests with so little resulting public safety benefit are a testament to the damage being done and why it must stop.

Notes on data cleanup. This is messy data. When departments submitted data with obvious errors, I deleted them, but there's probably still some bad and/or messy data still in there. All deleted data were from small agencies conducting relatively few stops. E.g., the tiny Cleveland Police Department reported arresting 2.9 million black people at traffic stops, though they reported fewer than 2,000 stops overall. Several agencies reported arresting every driver at every traffic stop: Little River Academy Police Department, Jefferson County Constable Pct. 4, Wharton Co. Constable Pct. 1, Orange Grove Police Department, Crosbyton Police Department, the City of Alma Police Department, Tiki Island Police Department, Palo Pinto Co. Constable Pct. 3, Montgomery ISD Police Department, Presidio ISD Police Department, Taylor County Constable Pct. 2, and the LaSalle Co. Sheriff's Office. Jonestown Police Department reported using force on drivers at every traffic stop. I omitted data from these agencies when making aggregate counts. It's highly likely several other agencies submitted problematic data, but I cannot confirm it at the moment and only omitted data when evidence of error was indisputable on its face.