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!

Transcript: Reasonably Suspicious Podcast, 3/21, George Floyd Act Special Edition

Scott Henson:

Hello, boys and girls. This is Scott Henson with Just Liberty. I'm here today with our good friend Mandy Marzullo. After a hiatus last fall, we're relaunching the Reasonably Suspicious Podcast with a special multi-part episode examining various aspects of the proposed Texas George Floyd Act. The music we're listening to is from a radio ad created by Just Liberty to promote the Texas George Floyd Act. It was produced by Gabe Rhodes with Jonathan Horstmann on vocals and the great John Mills on horns.

Scott Henson:

Last summer, the nation erupted in protest after Houston native George Floyd was killed by a Minneapolis police officer who kneeled on his neck for eight minutes and 46 seconds while George told him, "I can't breathe." Tens of thousands of Texans in large towns and small took to the streets, including more than 60,000 people at the largest protest in Houston.

Mandy Marzullo:

In response to this national uprising, the Texas George Floyd act was filed by Representative Senfronia Thompson. This bill is an omnibus piece of police reform legislation that includes a duty to intervene for officers who witnessed misconduct, a duty to provide aid when someone is injured in their custody and establishes a meaningful cause of action that allows Texans to sue when their rights are violated.

Scott Henson:

We spoke to Representative Thompson and asked her why she brought this legislation.

State Rep. Senfronia Thompson:

Anyone who watched what happened in Minnesota would say today, as they said then, it was a horrific crime. It was a murder that was broadcast all over the country and all over the world. People responded to that conduct through protests, through [inaudible 00:02:23], all sorts of things because it shocked the consciousness of people that we had persons who we hire as our protector to keep the law who was, in fact, breaking the law in that capacity. This bill is a response to the people outcry. You worked around the capitol a long time [inaudible 00:02:48] on different issues that impact policies in reforming police activities. We have been trying to get these kind of bills passed. This is now the forum because of the support of the people, the groundswell of the people, that we believe that this is the time that we can do something about police brutality in communities of color that has happened so long before George Floyd death.

State Rep. Senfronia Thompson:

Most of the legislation that is within the George Floyd Act isn't new. What we really want to do is to be able to shape those policies so that we will have not only the people of our country in our communities, in our states follow the law, but the people who enforce the law to also follow the law. And when they step outside of the boundaries of those laws, then they have to be accountable just like everyone else. We don't want to keep people believing that they are person who are above the law.

Scott Henson:

We thought we'd start by discussing an element of the George Floyd Act that reprises a suggestion omitted from Texas Sandra Bland Act when it was passed in 2017, the prohibition on arresting drivers in traffic stops for Class S misdemeanors, which is currently legal under Texas law. Here's how State Representative Senfronia Thompson described this class of offenses.

State Rep. Senfronia Thompson:

Class C arrests really are those kinds of arrests that should be ticketed offenses. People usually don't spend time in jail behind them. They used to pay fines. You didn't have your seatbelt on or you have a headlight that is out or you didn't stop for a stop sign. No one was injured, no one is killed, and those should be those kind of offenses that a citizen gets a ticket and sent on his way.

State Rep. Senfronia Thompson:

Had that happened in the Sandra Bland case because she forgot to give a signal when she made a turn, she would've been alive today. We want to make sure that there won't be other Sandra Blands, there won't be other arrest made like hers, where people would be put in perils of their life and lose it, and that police officers don't spend all of their time trying to arrest someone and carry them to jail and utilize facilities like the jail to put in jail these kinds of offenses when there may be other more serious offenses that are happening and we're running out of space for those persons to be locked up.

Scott Henson:

In 2019, more than 64,000 Texans were arrested at traffic stops for Class C misdemeanors, according to law enforcement data reported to the Texas Commission on Law Enforcement. That's half again more people than were for marijuana possession that year. In December, an episode out of Keller, Texas in Tarrant County made national headlines illustrating exactly the type of situation the George Floyd Act aims to avoid. Mandy has been digging into the details of this case, so tell us what happened.

Mandy Marzullo:

Well, a lot. I think that this is a really layered interaction and a good example of how implicit bias can play out so that someone's rights are violated for what ends up being a red herring. Just to give you some context, Dillon Puente, who's young-

Scott Henson:

18 years old, I believe.

Mandy Marzullo:

18 Years old, so quite young. Is driving in his hometown on a hot August day with the windows rolled down. While he's driving, apparently he made a wide right turn and is pulled over for it. He obviously stops immediately. As a law enforcement officer is approaching him, he calls for backup and then makes a big deal about how Dillon had rolled his window up three quarters of the way. He immediately knocks on it and kind of goes from zero to 60 in the interaction. So I think it'd be good for the listeners just to hear this one tidbit. Let's give it a listen.

Audio:

320. Go ahead and send me a unit, what you got available. Hey, roll your window back down.

Dillon:

What's up?

Sergeant Shimanek:

My name is Sergeant Shimanek. Keller Police Department. Reason you're being stopped today, you made a wide right turn when you turned from 1709 to 377. Any reason why you're rolling your window up when I walked up to this car?

Dillon:

No sir.

Sergeant Shimanek:

You had been driving with it down for the past mile.

Dillon:

I just rolled it up.

Sergeant Shimanek:

All right. Step out of the car for me. Step out. Do not shut that window. Open it now. Step out. Right here. Face that direction. Face that direction. Put your hands right behind your back. Don't move, do you understand?

Dillon:

Yes sir.

Sergeant Shimanek:

Why are you acting so suspicious?

Dillon:

Because I'm scared.

Sergeant Shimanek:

You rolled your window up when I'm walking up on scene for a routine traffic stop. Ain't nothing going on. You rolled your window up, what does that look like to me?

Dillon:

I mean, I'm just rolling it up because I... For my safety.

Sergeant Shimanek:

For your safety?

Dillon:

Yeah.

Marco Puente (pulling up in his truck):

What's happening?

Dillon:

Nothing, I rolled up my window.

Sergeant Shimanek:

Hey, back off.

Dillon:

That's my dad.

Audio:

[inaudible 00:08:23].

Dillon:

I rolled up my window.

Sergeant Shimanek:

320. Give me unit code now.

Dillon:

He got mad because I rolled up my window.

Mandy Marzullo:

At that point, as what you're probably hearing, Dillon at this point has been pulled out of the car. He's been cuffed and his father drives by. Obviously, you hear the officer tell Mr. Puente to pull over or he'd be arrested for blocking the roadway, which obviously sounds extreme but then the father complies. He pulls over, parks his car and then begins videotaping. You can see this from the... If you watch the body camera footage, but from the other side of the street.

Scott Henson:

Right. It should be mentioned that in no way when you watch the video, and this is all available online on YouTube, in no way is the father blocking the roadway at all. He is pulled up at the curb on the other side of the street. It's a very wide residential street. He's a long way away, really, from the police officer and everything that's happening with his son. It's really a spurious allegation from the moment that it's made.

Mandy Marzullo:

And also, Dillon has... The officer is saying that Dillon is behaving suspiciously and being a bit hostile, but he isn't. He complied with everything the officer asked him to do. When he was told to roll his window down, he rolled his window down. There was no...

Scott Henson:

Noncompliance, is that correct?

Mandy Marzullo:

Exactly. At that point, the patrol car that he had asked to come over had arrived. The law enforcement officer first tells the patrolman to watch the father and then instructs him to arrest him. That's when a really unfortunate altercation happens where both officers end up attacking Mr.Puente, cuffing him and pepper-spraying him for reasons that don't seem to make any sense because there was no scuffle or resistance.

Marco Puente:

I got this on video. This guy is arresting me for just standing here. And now, he's taking my phone away. Dude. Oh my God.

Audio:

[inaudible 00:10:38].

Marco Puente:

Dude, what are you doing?

Audio:

Spray him, spray him, spray him, spray him, spray him.

Audio:

[inaudible 00:10:45].

Audio:

Spray him.

Marco Puente:

I'm not even doing anything.

Audio:

[inaudible 00:10:47].

Audio:

Watch his head.

Neighbor:

Stop, stop.

Audio:

Stay away. stay away.

Audio:

[inaudible 00:11:00].

Marco Puente:

What is this about?

Scott Henson:

He wasn't resisting. They just manhandled him. And in fact, they really pepper-sprayed him twice. They did it the first time and then after the cuffs were on and he was sort of thoroughly under their control, the officer reached back down with the pepper spray and sort of put his hand at an angle so it would get in between his sunglasses and into his eyes and sprayed him again in a very punitive fashion. Totally unnecessary, totally after the cuffs are 100% on and he's fully under their control.

Mandy Marzullo:

It doesn't make any sense. At this point, there actually is sort of a bystander who's a voice of reason who shows up and starts videoing Marco Puente's arrest and is saying, "This is horseshit. This doesn't make any sense," and calling them out for their clearly excessive force. At that point, you also hear from that point going forward Mr. Puente talking about the burning in his eyes and repeatedly asking for a towel, which they never give him.

Scott Henson:

Well, in fact, they explicitly denied it to him, didn't they?

Mandy Marzullo:

Later on, I believe a medic who arrives on the scene asks the law enforcement officer if he has a towel and the response is, "Not for him. You can detox him at the jail." Instructions are explicitly given to the folks on the scene to refuse to render aid.

Scott Henson:

Let's listen to that, just to put a pin on it.

Medic:

Do you have a towel or anything? [inaudible 00:12:47]-

Shimanek:

No. Not to give him.

Medic:

Okay.

Shimanek:

Just go ahead and... Hey. He's been searched. Hey, [inaudible 00:12:56].

Audio:

[inaudible 00:12:56].

Shimanek:

Okay, go ahead and take him to jail.

Marco Puente:

[inaudible 00:13:00] towel. I can't see anything.

Shimanek:

Tell him we'll detox him at the jail. Get him to jail.

Mandy Marzullo:

I should note that throughout the next several minutes of the tape, you can hear Mr. Puente crying in the background if you turn the volume up loud enough. His eyes are clearly burning. It sounds like it's getting worse and there is no medical care.

Scott Henson:

Now meanwhile, back to his son. So father has been arrested, the son-

Mandy Marzullo:

Assaulted and allowed to continue to suffer. His son, at this point-

Scott Henson:

Is also in handcuffs, but has the son been arrested yet?

Mandy Marzullo:

No, no, no. He's just detained. What they do is at first, he's told to sit down on the curb. Then they move him to the back of the police car. He's still detained but not arrested, cuffed in a police car with the door closed, which is really remarkable if you think about it. There is no way that he could open the door, but he's merely detained. He's not under arrest. At that point, the law enforcement officer starts asking Dillon for permission to search his car.

Scott Henson:

So at this point, his Fourth Amendment rights are kind of like Schrodinger's cat, right? There's just this black box that his rights theoretically exist in, but they might actually already be dead but he doesn't know yet. He's just back there handcuffed in the back of the police car. He may or may not be arrested. He may or may not be Mirandized. He may or may not...

Mandy Marzullo:

If you think about it, a whole host of constitutional-

Scott Henson:

He is Schrodinger's defendant.

Mandy Marzullo:

No, no. They're all kind of in suspense. It really shows how our system isn't compatible with reality, right? The idea that he could ever consent or make a voluntary consent for someone to search his vehicle under those circumstances is ludicrous, but-

Scott Henson:

The cat is dead.

Mandy Marzullo:

This is the reality that we're dealing with. Amazingly, Dillon says, "No. I'd prefer that you don't."

Scott Henson:

Dillon, you're just going to keep dragging that dead cat around. It's like Tom Sawyer. You're going to take that dead cat. Tom Sawyer was able to actually sell it off and trade it in exchange for services rendered. I admire Dillon for that.

Mandy Marzullo:

Yeah, no, I-

Scott Henson:

He's going to just take that dead cat and use it for all it's worth. I appreciate it.

Mandy Marzullo:

I really do appreciate Dillon. He's also, I will say, pretty charming, under the circumstances. I thought he came across-

Scott Henson:

Very measured.

Mandy Marzullo:

Yeah, and-

Scott Henson:

Kept his head when others were losing theirs about him. I mean that was...

Mandy Marzullo:

I mean, the most he said was-

Scott Henson:

Kipling would have been proud.

Mandy Marzullo:

Anyone would have been proud. I mean, the most he said was, "What you did to my dad was not okay" or "not cool."

Scott Henson:

Not cool, man.

Mandy Marzullo:

Not cool, which is a bit of an understatement when he just saw his father...

Scott Henson:

Dude, don't mace dad. I get that. That's fair for him to object, I feel like. God.

Mandy Marzullo:

This is where you start to see both an evolving theory on the part of the arresting officer and where misinformation begins to be transmitted internally within the police department, which I think both are significant. On the theory front, after talking to Dillon, the arresting officer develops a theory that there's marijuana in the car and so he asks a colleague of his to stand near the car and see if he can smell marijuana.

Scott Henson:

The narrator added, "There was no marijuana in the car."

Mandy Marzullo:

Dillon had said there was none. There was no smell. And then it became narcotics. If there's no marijuana, there still has to be something there, right?

Scott Henson:

Added the narrator, "There also were no narcotics."

Mandy Marzullo:

But also, you see sort of intersperse between interactions with Dillon, the arresting officer starts communicating to other officers what's happened as they're being called onto the scene.

Scott Henson:

And for the record, Dillon did great.

Mandy Marzullo:

Yeah.

Scott Henson:

If my daughter had been pulled over unfairly and treated as badly as he was and watched me or someone they loved get assaulted, essentially, by the police officers and kept their head as well as he did, I would be proud of them. He did really well.

Mandy Marzullo:

He did, and so did the dad.

Scott Henson:

Sure.

Mandy Marzullo:

I mean, if you think about it, he reacted very mild. I guess there's-

Scott Henson:

It's not like he swung on them when they arrested him under false pretenses. He just said, "Hey, this is bullshit," and it kind of was.

Mandy Marzullo:

Yeah. I mean, I guess the only thing about this conversation that I find frustrating is that if someone attacks you, you should be able to respond to that, right? I mean, and he was.

Scott Henson:

Again, it's a strange moment.

Mandy Marzullo:

It is.

Scott Henson:

These are Schrodinger's defendants. They're put in a situation where in theory, they've got rights. In practice, those rights are probably dead inside the box and some judge will make the decision months from now. But the reality is in the street, it doesn't matter.

Mandy Marzullo:

Matter.

Scott Henson:

The people with the handcuffs and the guns get to win. The cat is already dead.

Mandy Marzullo:

Okay. So that's where it's like I don't want to say that like Dillon was... I think that it was extraordinary because anybody in his situation would want to respond and he didn't.

Scott Henson:

[inaudible 00:18:57].

Mandy Marzullo:

The second piece that you see is sort of in between conversations with Dillon, the arresting officer is sort of giving information to other officers about what happened. You do see that he's lying. With the first conversation and someone pulls up, he says, "With the father, he kept interfering and walking in on my scene and so we had to struggle with him and arrest him," when that clearly isn't what happened. The man was on the other side of the street, but sort of knew that he was out of line. Instead of admitting that to his fellow officers, he's providing them with misinformation. I think it's important to realize that sometimes bad actors are out there, but they're hard to be identified even within a single police department.

Scott Henson:

I also think this would not have ever come to light if it were not for the bystander video. We created a law in Texas that makes all body cam video closed records. What we've seen is police departments do not release body cam video, for the most part, unless it really is beneficial to the department. We're going to talk in a moment about a rare example of that's counter that out of Plano, but usually we don't get access to body cam video unless it backs up the officer's story.

Scott Henson:

Where we see these reform moments pop up is when there's bystander video. In this case, a neighbor walked out, saw what was happening, was videoing the whole thing and told them, "You're going to be on the six o'clock news." That, all of a sudden, brought the supervisors in. Everyone gets interested at that point.

Mandy Marzullo:

And pretty quick.

Scott Henson:

That was very interesting to me, too, that the body cam didn't seem to really be a deterrent for bad behavior. He knew that he would not be held to account just for that. It was the bystander video that really made him realize, "Oh, wait a minute. I may have gone too far."

Mandy Marzullo:

Gone too far.

Scott Henson:

"Someone who might care has caught me doing this."

Mandy Marzullo:

And then sort of the last thing to pay attention to in the video is that ultimately, there was a decision not only to detain Dillon, but to arrest him. That's communicated to a higher up and the rationale was explicitly to search and inventory his car. Some listeners might know this, some might not, but even when there isn't probable cause to believe that somebody has drugs or narcotics in their car... Which let's be clear, did not apply to this situation. There was no smell. There was no odor. It wasn't as though Dillon was driving recklessly all over the street as though he was intoxicated or under the influence of some substance... the Supreme Court has ruled that if you arrest someone and you seize the car, you can search the car for purposes of making an inventory of what you have seized. And then, that if you find anything, it's admissible in court. So it's sort of an end run around the Fourth Amendment, and that's exactly what they did here. That was the rationale. It wasn't like they needed to arrest Dillon so that he wouldn't make another wide right-hand turn.

Scott Henson:

Right.

Mandy Marzullo:

Because you can't have that on a street where no one is. This was about searching his vehicle.

Scott Henson:

And that really was explicit, too. Why don't we listen to the audio of exactly that moment where the decision was made?

Audio:

So dad resisted and was pulled away fighting from us and so I OCed him. I got OC all over me. Kid right now is already detained, sitting in the back of the car. We've had a very lengthy conversation. He's been reasonable. I'm quite certain there's narcotics in the car, so I think I'm going to arrest him for the wide right turn. He's got a history of narcotics. He was giving me all sorts of clues, so I think I'm going to arrest him for the wide right turn.

Scott Henson:

The Puente case ended with the officer responsible resigning from the force and the department agreeing to a $200,000 settlement. But that was for assaulting Dillon's dad. The underlying arrest for a Class C misdemeanor in order to search a vehicle was both wholly legal and approved on the scene by a supervisor before it happened. And it happened to more than 64,000 people across Texas in 2019 alone.

Scott Henson:

During the recent snowpocalypse week, there was an amazing and awful example out of Plano where a young 18-year-old Black man was arrested for walking in the roadway while trudging through the snow on the way home from work at Walmart. Another example of police arresting for a Class C misdemeanor, the case received national attention and the Plano police chief later issued an apology. We caught up with State Representative James White, newly appointed chairman of the Homeland Security and Public Safety Committee in the Texas House, and he brought up this case.

State Rep. James White:

This young man was, what, 17? 18? Is that Plano?

Scott Henson:

That's right.

State Rep. James White:

He was walking home. It was snow. It was cold. And I will tell you, I'll raise my hand up. When I was walking back and forth from my office, I did not walk on the sidewalk either. I was kind of walking in the street, too.

Mandy Marzullo:

But we're in agreement. That young man in Plano...

State Rep. James White:

Yes, so-

Mandy Marzullo:

[inaudible 00:24:48] arrested.

State Rep. James White:

Yes. [inaudible 00:24:49]. We'll watch it. We got to meet people where they are. Stop being so... We got to meet people where they are. I think that's where... Because I'm listening to both sides, but we're going to get into committee hearings. We're going to get this out in the public sphere.

State Rep. James White:

But look, we don't need to do fortuitous arrest. We don't need to be putting people in the county jail or municipal jail on taxpayer dollars in a inefficient way. We don't need to be doing that. We don't need to be doing end runs around the Fourth Amendment.

Mandy Marzullo:

But what we have right now, though, is officer discretion. They don't have to arrest people [crosstalk 00:25:34].

State Rep. James White:

No they don't. They don't.

Mandy Marzullo:

What we're seeing is 64,000 people being rounded up [inaudible 00:25:40].

State Rep. James White:

And that's 64,000 people with their liberty deprived.

Mandy Marzullo:

Exactly.

State Rep. James White:

Yeah, we get the principle. We agree with the principle and we agree with the approach. We'll get there.

Scott Henson:

What were your impressions of that case?

Mandy Marzullo:

It was so strange, that it's hard to know what the officers were thinking because... He was literally just walking in the roadway.

Scott Henson:

And they, I truly believe from their comments, felt like they were there to "help him". And then when he told them he didn't need their help, somehow this was an insult to their position in the world. There were two officers, a male cop and a female cop. The male cop in particular, to me, it came off as a moment of toxic masculinity of some sort where, "What> I offered to help you and you didn't accept it? How dare you?"

Mandy Marzullo:

Yeah, when it's sort of like who wants to get into the back of a squad car?

Scott Henson:

Yeah, with this domineering jerk who can't take no for an answer. It was weird. I don't know what your expectations are of people that this cop's walking around with, but clearly it was that he thought so highly of himself, that it was an insult to humanity to deny him the opportunity to provide assistance.

Scott Henson:

I really feel like you could tell when they arrived, the cops, from their stated intentions, said they wanted to help. It just turned in the opposite direction so quickly with the kid on the ground saying, "You said you were going to help me? Now you've got me face down in the snow. What?"

Mandy Marzullo:

It doesn't make... For what started as a welfare check. This guy's walking in the street. He had a T-shirt on. You could understand why someone would be concerned that he get wherever he's going as quickly as possible.

Scott Henson:

Although, I don't personally believe that a white teenager would have had the cops called on him in Plano in the first place. I think that it's an example of someone in the neighborhood calling the police when they shouldn't have and then also layered on top of that, police reacting poorly and not acting to restrain one another, again, when someone overstepped their bounds. As soon as the male cop escalated improperly, the woman did not turn around and say, "No, this is inappropriate. He didn't do anything." She backed the guy's play. She knew whose team she was on. If there's a duty to intervene when an officer behaves improperly, she was not prepared to do that.

Scott Henson:

It gets back to that element of what's in the George Floyd Act. It's not just the Class C. It's like in the Puente case. These examples are layered on top of each other. Multiple things that come into play in the George Floyd Act happened in one episode. It's never just one thing.

Scott Henson:

Now, by the way, as we are talking about these individual case studies, it's worth mentioning that today, as we are recording this on March 1st, is the deadline for law enforcement agencies to submit their racial profiling reports to the Texas Commission on Law Enforcement. And these only apply to traffic stops. They wouldn't apply, for example, to the Plano case. It's only when someone is pulled over. So it would capture Puente, but not necessarily the Reese case out of Plano. But, this data has given us the first window ever into these types of low-level arrests.

Scott Henson:

In 2020, with so many people working from home during COVID, we saw significant decline in traffic stops, about a third less than in 2019, with searches performed at 5.8% of stops or about one out of every 17 times a driver was pulled over. Contraband was discovered in fewer than half of searches. And when it was, 70% of the time it was drugs or paraphernalia. Remarkably, three out of five times contraband was found, no arrest was made so most of those were probably pretty minor.

Scott Henson:

Class C arrests were down, too, but there were still more than 41,000 last year. Agencies reported using physical force resulting in serious bodily injury at traffic stops 5,141 times in 2020, with Houston PD having by far the highest rate among large agencies for the third year in a row. Finally, agencies reported more than 4,000 complaints at traffic stops in 2020, but agencies disciplined officers for only 10 of them. Five of those disciplined officers were at Austin PD.

Scott Henson:

We're starting to get data on these types of arrest, on use of force, on this sort of stuff for the very first time. The interesting thing about 2020 data is that this was all mandated under the Sandra Bland Act added to Texas racial profiling data collection and then ironically, the Commission on Law Enforcement forgot to, failed to, made an error and didn't include racial categories in the racial profiling data for any of the new categories required in the Sandra Bland Act. And I've had long conversations with these folks.

Mandy Marzullo:

Why would you want to know that, Scott?

Scott Henson:

I believe they genuinely didn't do it as a intentional undermining of the law. It was just a mistake. They're genuinely embarrassed about it. It doesn't really matter. We've had to wait two extra years to finally get this data that will have those racial breakdowns. That's all being reported as we speak. I'm hoping that reporters start to dig into this new data. It's a weird year for the first-

Mandy Marzullo:

To start.

Scott Henson:

... comprehensive year, but over time this is going to turn into something that tells us a lot more about what police are actually doing in the field than we've ever known before. Right now, we just have anecdotes like the Dillon Puentes of the world and like the poor kid in Plano. Understanding the scope of what's going on is, I think, going to be helpful over time.

Mandy Marzullo:

And I think also, the reporting requirements may have also contributed to the decrease. Just letting people know that someone's watching it, having people in the command structure aware that this is something that they're going to have to report and that may be more stops isn't a good thing can shape the behavior, even subtly.

Scott Henson:

Absolutely. I know the actual physicists in the world despise this example, but I've always loved the analogy, and I know it's fully just an analogy, of the uncertainty principle where the act of measuring something in the world-

Mandy Marzullo:

Something moves it.

Scott Henson:

... actually causes it to change position and so you can never know exactly where something is, or rather the act of measuring it will alter its trajectory. I really believe that's what transparency does. A lot of times with some of these public policy issues, is the moment you can actually observe what's going on, the act of observing begins to change how that activity goes on.

Mandy Marzullo:

Yeah, and that's-

Scott Henson:

And I believe that's true of some of these traffic interactions that have been incredibly opaque historically.

Mandy Marzullo:

And it's also another reason why body camera footage should be open to the public. I think one reason why you had so much misinformation circulating even within the Keller Police Department is because no one was watching the body camera footage.

Scott Henson:

We would get so much more reform so much more quickly if body cam footage were public. We really would.

Mandy Marzullo:

Police officers would just know. You would know, "Okay, I can't just randomly arrest somebody for something they didn't do."

Scott Henson:

That's right. Right now, if there's not bystander footage, they know they're mostly never going to be held accountable. If they knew anyone could just access that body camera footage and anything they did while on duty they could be held accountable for, it would be monumental. I truly believe that.

Mandy Marzullo:

I believe it, too. And I should say just in fairness, our friends, the beloved James White would say, most police officers are well-intentioned and do their job really well. Making this footage available to the public is really just going to verify that argument. We're not out to get everybody. We want accountability within the system.

Scott Henson:

Chairman James White framed the issue a little differently, dismissing the idea that these are isolated incidents and asking law enforcement to consider whether these arrests devalue their role in the public's eye.

State Rep. James White:

Isolated incidents. Well, 65, 64,000 incidents isn't isolated. That's 64,000 times at least 64,000 people have had their liberty deprived. Now, obviously we can dig in and find out which ones were because it was a fight around the corner. I get that. Okay.

State Rep. James White:

So what I would tell the law enforcement leaders is I don't want your role being devalued. I think you do important work. I think when children look at you on the street corner and they look at that badge, that's a badge of just a lot of importance, Scott. That's what I would tell the law enforcement community. I want to lift you up. You are being lifted up. I don't want to see your role being devalued.

Mandy Marzullo:

And finally, Scott asked Representative White about his opinion regarding the governor's proposal to make the Austin Police Department part of the State Department of Public Safety. Listeners will remember that Governor Abbott has been a bit outraged about the Austin City Council's decision to cut the police department's budget and in response, has decided that the City of Austin should no longer have jurisdiction over its own law enforcement. Let's hear Representative White's response.

Scott Henson:

Well, let me ask you this one, since all of a sudden you're in charge of the Department of Public safety.

State Rep. James White:

The governor thinks he's in charge of that.

Scott Henson:

Well, that was my question, because the governor had suggested that the Department of Public Safety should take over the Austin Police Department and that Austin wasn't doing a good enough job and defunded the police. Maybe Steve McCraw ought to be running the Austin Police Department. I was wondering if you thought that was a good idea.

State Rep. James White:

Well, this is what I think, and a lot of this is distilled from comments from back home. We have elected city councils. We have elected school boards. We have these elected bodies for a reason. Elections matter. To some extent, voters in certain jurisdictions need to live with the decisions their elected people have. Someone in Jasper or in Woodville or in Newton or in Lumberton may say, "Hey, look. I'm paying the freight for what I think we ought to be doing here as far as law enforcement and police in my city or my county. Why does my sheriff DPS need to go to Austin?" And I'm getting those questions.

State Rep. James White:

Right now, the governor has sufficient discretion to staff up in any part of the state if need be. We have mayors and we have other local leaders where if it's a disaster, if it's an emergency or even a spike in crime... My former colleague Eric Johnson, he's got on the call and said, "Hey, I need a little more [inaudible 00:38:34] help. I need a little bit more help here." The governor repositions DPS at the beck and call of local leaders.

State Rep. James White:

So I think there's enough discretion there. I don't know if we need to take over the Austin Police Department. If there's some event in Austin where you just may need to bring in more law enforcement to work the crowds, the governor has that authority now. those resources are there now.

State Rep. James White:

I am appreciative and I'm understanding that generally, the capitol complex and maybe some of the perimeter around the capitol where you do have state offices and buildings, there may be a need at certain parts of the year, maybe all parts of the year, to have a heightened DPS role. Sitting down talking to DPS, Scott, they're getting their threat assessments. They're seeing things. I get it. But I think even back home, people would say that the City of Austin has made some decisions. Their people just may need to deal with it. Okay, I can choose not to go to Austin. And then if I'm coming to the state capitol, I know the governor has the discretion to staff up at the capitol.

State Rep. James White:

That's sort of where I'm at on that. And I see that happening around where we're staffing up for whatever reason. I think that's appropriate. But colonizing Austin? But look, I'm sensitive to the governor's concerns that yes, Austin is... It is the door to the state in many instances. I get that. I would hope that we can get to a situation where the State of Texas, that's the governor and the legislature, can sit down and have a real constructive discussion with Austin and the city council and we could have a incubator or some type of exemplar on how to deal with homelessness in the state.

State Rep. James White:

I think you got to deal with all of it, right Scott? If Austin is the gateway, the doorway to our state, we need to work on this homeless issue. I mean, I'm walking up and down the streets of Austin and it needs to be dealt with. So no, I don't think we need to do a full colonization of the City of Austin.

Scott Henson:

Fair enough. Fair enough.

Scott Henson:

Finally, we spoke to Anthony Graves, an old friend and a Texas exoneree who has spent 18 years, I believe it was, in the Texas prison system before being proven actually innocent and is now an advocate for criminal justice reform and forensic reform and really is one of our better, more important advocates we have here in Texas. We sat down with Anthony to talk about a pair of budget proposals at the Texas legislature. The House Appropriations Committee and the Senate Finance Committee are both meeting this week to consider the Texas Department of Criminal Justice budget. A number of different organizations have banded together to ask them to increase the budget for prisoner food and for treatment services.

Scott Henson:

Right now, we don't begin providing treatment until prisoners have already been paroled. That decision has already been made. If they were to provide treatment on the front end, we would have around 15,000 fewer people in TCJ today. People are simply paroled and then wait for 18 months or so until they get out.

Scott Henson:

Both of these issues are up this week at the Texas legislature. We asked Anthony to give us some insight on what this food budget issue means to people who are inside and what kind of treatment prisoners really need in order to successfully reintegrate into society once they get out of prison.

Anthony Graves:

First of all, like I said, thank you for having me. And yes, I am the person speak to on these issues because I went through them. I ate the food that we're talking about. Because I ate that food, I just spent the last year in recovery from a major surgery because of the food that I had to eat. They found a big mass on my small intestine that I had to do a major surgery. They didn't even know if I was going to make it. I kept that out the public, but for the last year I've been recovering because of how I was living for 18 and a half years.

Anthony Graves:

The food that I was eating, the food is so disgusting. It's dehydrating. It's cold. It's overcooked. It's unsanitary. I mean, it's just all those things that would make you come out of there with bad health.

Anthony Graves:

Here's the deal. With this budget, they can allocate money toward food, better food, because you're going to save in the long run. Here's why I say that. Most of the people that's going to come home, if you don't allocate that money toward food and get them better nutrition, they going to come home with all kind of health problems that's going to cost you on the back end. You going to spend more money on the back end dealing with their health than you would on the front end getting them better food, more nutritious food. I mean, just take for instance when the guy who stormed the Capitol and they took him to prison. First thing he holler is he wanted organic food.

Scott Henson:

[inaudible 00:45:06].

Anthony Graves:

He had come in there and seen how bad the food was and the first thing we was like, "I'm going on strike. I'm not putting that in my body. I want organic food." I mean, what he was really trying to tell you was the food is bad in there. And if it was bad in there, I'm telling you here in Texas, it's unsanitary. I've seen things like a piece of rope, bread tie, a leg of a roach in your food. Food sit there, and the thing dehydrates for hours before they even serve it to you. It's just unsanitary.

Anthony Graves:

When we're really talking about saving money, then we would spend money on the front end so that we can save a lot on the back. Because you're going to have to deal with all these health issues that these people are going to have coming home from years of eating bad, unhealthy food. That's what I would say. I think that would be good money spent, if you would allocate some of that money toward a more nutritious meal for these people that are going to come back into our community. As for these other things, like we were talking earlier about the treatment...

Scott Henson:

Tell me what... You're someone who because... Was someone prove him actually innocent and who got out under rather unusual circumstances. You didn't have to go through the whole being paroled and then wait until you finish some other treatment thing and wait around for 18 months the way some of these folks are doing. When you think about your reentry experience, what do you think folks leaving TDCJ need in order to successfully reenter society? What would've benefited you to be able to make that transition that maybe, in retrospect, you weren't provided or you had to find on your own?

Anthony Graves:

Well, I'll tell you what. I wish that there would have been some sort of unique style treatment in place for me because people don't know how much I struggled when I came home. I struggled a lot. I remember when I was compensated. Everyone was happy for me and I bought a new car. I had a condo by the lake. Everybody had seen a smile on my face and thought I was doing great.

Anthony Graves:

But nobody was around 3:00 in the morning when I was crying, when I didn't think I would make it. I was dealing with PTSD. Didn't know it. But lucky for me, I had a support system around me so when I fell, I fell on a pillow. Most people are not going to have that support system around them. When they fall, they going to fall hard, and they're not going to be able to get back up.

Anthony Graves:

What you have to do is you have to create something that prepare them before they get out. That's what I wish would've been in place for me, something that would have prepared me to come back to a world that is totally different from when I left. Just going to the store, using the ATM machine. I mean, just using these things were... Self checkout. These things were frightening to me because I'd never... The world changed. We're a digital society. I didn't know anything about computers or phone.

Anthony Graves:

I know that we look and everybody has the heart of gold and they want to try to help people, and we look at the big picture how to get them on their feet. A lot of times, we just miss the small things, the small things that are so important to someone like me. I don't see anything like that in place. Until we put something like that in place, we going to continue to deal with a high rate of recidivism because people are not coming out prepared. They're coming out facing a world that's totally different than they ever knew.

Anthony Graves:

We have to put something, a designed system in place that would prepare them mentally, spiritually, emotionally before they enter back into our society. Because if we don't, not only are we going to have a continuous high rate of recidivism, but we're going to have a high rate of crime. We don't want to be that person who leaves their window open only to find a stranger in it that we let out that we didn't prepare to come out here and be a productive citizen. We have to put something in place, a system in place that'll address those issues and prepare them when they come home.

Anthony Graves:

And then you have to also, as I say, you got to spend good money toward food so they come home healthy. They're no good to us when they come home and they're broke down. They're just a burden now to the system because you're spending so much more money on them now than you would have had you addressed this issue at the beginning. So I say address the food issues [inaudible 00:49:49]. Address a great program that you can put in place that will prepare people to come back into our society as productive citizens, are looking to be productive citizens, than just being broken and not knowing who to turn to or where to go and end up going back to our prison system.

Scott Henson:

All right. We're out of time, but we'll try to do better the next time, which will be part two of our special podcast series on the Texas George Floyd Act. Until then, this is Scott Henson with Just Liberty.

Mandy Marzullo:

And I'm Amanda Marzullo. Goodbye and thanks for listening. A special thanks to Chairs White and Thompson for sitting down with us in the past week. We really, really appreciate your time.

Scott Henson:

For sure. Thanks a lot, guys.

Scott Henson:

(singing)