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? (49:15)

Find a transcript below the jump. Enjoy!

Transcript: April 2021 Episode of the Reasonably Suspicious podcast special on the Texas George Floyd Act

My name is Tera Brown, I'm representing the George Floyd Foundation, and I am also a family member of George Floyd. I believe that the outcome for him could have been different, if at least one of the officers would have intervened, or tried to run to aid. They all heard him say countless times, "I can't breathe," yet none of the officers stepped in to help him. He could possibly still be alive today. It should be every police officer's duty and responsibility to be aware, and to try to deescalate before something like this happens.

Tera Brown:

My understanding is, this is a non-jailable offense, and the force that was used against George was excessive, it was unnecessary, and it caused his death. Police brutality and citizens being killed at the hands of police, it has to stop. And I just believe that it continues to happen because, there's very little to no accountability for the actions of the officers who commit these acts. So qualified immunity I believe needs to be removed. As a family, we can never get George back, but it is my hope that his life would at least be the catalyst for actual change, the kind of change that is necessary, it would save the lives of others. I do believe that, if this, the George Floyd Act is approved, I think that this is going to help us do just that.


Scott Henson: Hello boys and girls, and welcome to a special edition of Just Liberty's Reasonably Suspicious Podcast, focused on the Texas George Floyd Act, which is omnibus legislation presently pending at the Texas legislature, along with an array of standalone bills featuring its various provisions. This is part two of our George Floyd Act special. The music you're listening to is from radio ads commissioned by Just Liberty in support of the legislation, produced by Gaybros, with vocals by Jonathan Horseman, and horns by the great John Miller. The opening comments were from one of George Floyd's family members, speaking to the Texas Homeland Security and Public Safety Committee in March. Mandy, you were there what your impressions of the hearing?

Mandy Marzullo: Really, it was the level of grassroot support for the George Floyd Act, and just how pervasive police misconduct is in Texas.

Scott Henson: People were there from all over the state.

Mandy Marzullo: Yeah.

Scott Henson: People had driven El Paso, from Brownsville, just from every corner.

Mandy Marzullo: Yeah exactly, and people of all stripes too. You had conservatives, liberals, Black and Brown community organizers-

Scott Henson: And many family members of victims of police brutality from again, just all over the state, folks who locally have been in the headlines there, but maybe aren't as well known as a Sandra Bland or a George Floyd statewide or nationally. But Jamail Amron's family from Harris County was there. Well, they've been fighting this qualified immunity issue for 10 years in the courts. Jorge Gonzalez's supporters were up from the Rio Grande Valley, and that's a terrible case where, a month before George Floyd was killed, a Hidalgo County Sheriff's deputy kneeled on Jorge's neck, and broke his neck, and they dumped him in a jail cell and left him for 21 hours. Eventually, he was released to his family's custody and died at home. Just terrible, terrible stories emerged, and so much pain just from every corner of the state was in that room. It was a remarkable event in that regard. I think every legislator on the dais was effected by what they heard.

Mandy Marzullo: Yeah, you couldn't not be.


Mandy Marzullo: The most controversial aspect of the Texas George Floyd Act, and the main similarity to the federal legislation by the same name, is the creation of a new cause of action at the state level that bypasses federal qualified immunity.

Scott Henson: To understand this, issue non-lawyers may need a little background. Federal litigation has always played an important role in ensuring that states comply with the bill of rights. But 40 years ago, the federal courts expanded immunities for law enforcement in ways that largely prevent police from being held accountable in civil rights cases. Notoriously, the Supreme Court's jurisprudence around these questions absolves officers, unless courts have condemned the same conduct in the same context in prior cases. In effect, this test locks plaintiff's into a catch 22.

Mandy Marzullo: Arif Panju, a litigator with the Institute for Justice, testified in committee for the Texas George Floyd Act. We caught up with him and his colleague Keith Neely, before the hearing, and asked him to explain the basics of qualified immunity and why Texas law needs to change.

Arif Panju: At the Institute for Justice, we believe that if there is a right, there has to be a remedy. That's why the constitution exists to guarantee rights, and that's why it divides power amongst three branches, so that those branches as a foundational premise, exist to protect those rights. But the United States Supreme Court created qualified immunity in 1982. And thanks to that doctrine, all government workers who violate the constitution are immune from liability by default, even if they intentionally, or obviously violate the law. The only way around qualified immunity is if a victim of abuse can find an earlier court case in that exact same circuit, that quote "clearly establishes that what happened to them is a violation of the constitution." They can only do that if the very same conduct happened in that previous case under similar circumstances, and it was ruled unconstitutional.

Arif Panju: So because of that unforgiving standard, constitutional rights often have no corresponding remedy. It's like trying to figure out, you can't get through the door to vindicate your right in court, you have to figure out a way through the keyhole. For all practical purposes, that means there are no remedies available even though rights are being violated.

Scott Henson: We asked Mr. Panju for an example of how qualified immunity plays out when police violate someone's rights.

Arif Panju: Right now, that victim would have the right to go to court, in federal court under section 1983, and raise a constitutional claim. Immediately, they'll be faced with a motion to dismiss raising qualified immunity, and they would have to litigate that immunity issue probably up into the appellate courts before they ever get to come down and build a record and prove up their claim. They would have to prove that qualified immunity does not apply. Again, it's the default. So they would have to show that there is a previous case with similar fact pattern, and I mean similar, that involved a constitutional violation that was held to be such, before qualified immunity defense would go by the wayside.

Arif Panju: Just to provide some recent examples around the country, courts have granted qualified immunity to police accused of stealing more than $200,000, regulators who searched a doctor's confidential files without a warrant. So this goes beyond law enforcement, a prison guard who pepper sprayed an inmate for no reason, and an officer who shot a child when trying to kill a non-threatening family dog. So although this is a nationwide problem, qualified immunity is also a problem in Texas. There are hundreds of decisions in federal court that cite this doctrine. So that's the problem right now. There's one avenue that's federal court, and in that federal court, you have to figure out a way to make it through the qualified immunity keyhole, to try to make it to your claim, and actually prove it.

Arif Panju: HB 88 would change that by allowing that same person, and all these other individuals that I mentioned, to go to state court. There's a remedy available to them. The liability wouldn't be on the officer, but be on the officer's employer, much like it is in other contexts. If the UPS truck hits you, you're seeing the UPS, not the driver. This puts the government employers on the same footing as their private counterparts.

Arif Panju: The law enforcement officers with all their split-second decision-making would still retain all the protections that the constitution affords, and that's because you don't get a remedy until you prove your claim. And proving that something was unreasonable under the first amendment, fourth amendment for example, under a reasonable search and seizure, requires proving that it was unreasonable, and all those protections for a split-second decisions are already in the case law. So this is a meaningful but simple solution that recalibrates what's the current state of affairs right now.

Mandy Marzullo: Texas isn't the only place reconsidering qualified immunity in the wake of the last year's protests. Kevin Neely described legislative efforts in other states so far on this topic.

Keith Neely: It has been happening in quite a few other states across the country. So in New Mexico, we've recently had an act that's passed both houses and is awaiting the governor's signature, that is very similar to what is currently going through the Texas legislature. It's similar to IJs model legislation. We have a carbon copy of IJs model legislation that's currently making its way through state legislatures in New Hampshire, and will hopefully soon be proposed as well in Louisiana. We're in talks with legislators in Kansas, and in Kentucky, and in Minnesota. The public interest and the appetite for reform is there, and folks are starting to recognize, if congress isn't going to do anything, and if the courts aren't going to correct this doctrine, well we need to look to our state governments as the solution. They can provide this alternative avenue for relief, that will actually protect folks constitutional rights.

Mandy Marzullo: So having heard everything that Keith and Arif said, I guess I'm most struck by how backwards the current system that we have is. Not only is it a catch 22, but it's relying on the judiciary to piecemeal recognize what rights can provide grounds for a cause of action.

Scott Henson: No, that is bizarre. We didn't quote the line from Keith but, there was a comment about, police officers don't go home at night and just read Supreme Court cases, or read appellate... The only people who fantasize anywhere in the world that they might do that, are in fact appellate judges writing the opinion.

Mandy Marzullo: I know, exactly.

Scott Henson: No one else imagines for a moment that police officers are doing that, and yet, it is the basis for all of the assumptions underlying qualified immunity. It's very strange.

Mandy Marzullo: Yeah and then, it's very strange, and it also provides no incentive for law enforcement agencies to proactively train their officers. If they're always going to win in these lawsuits, they don't need to spend money on that. All they need to do is just handle these cases on the backend rather than preventing them.

Scott Henson: It should be mentioned that, this has been a problem for decades and decades now. Even when the Texas George Floyd Act was filed, there was really no reason to think any relief might come at all through the courts. The Supreme Court very, very recently did hint that they might be interested in inching back qualified immunity somewhere in the future, and send a case back down to the fifth circuit to reconsider, with a little bit more air around the question. There are some law professors who think this is a major thing. I tend to think it's a minor thing until we see that it's a major thing. It's fifth circuit. But regardless, even the courts now understand that they've gone too far with this.

Mandy Marzullo: Yeah, exactly.

Scott Henson: I think that's what I take away from that, is that there's the reason that you're seeing Colorado, and New Mexico, and these other states step up to take this on, and hopefully Texas will follow suit, is that this has been a festering problem for a really long time. So I hope we get a chance to fix it.

Mandy Marzullo: Yeah, I hope so too.

Mandy Marzullo: (singing)

Scott Henson: Various sections of the Texas George Floyd Act relate to various parts of Floyd's personal story. One aspect that's gotten less attention than his death was his drug conviction in Houston, based on the uncorroborated testimony of Gerald Goines, a corrupt undercover narc, who was later found to have fabricated informants to get no knock warrants for drug raids. The Harris County district attorney sent letters to dozens of defendants to inform them their convictions were based solely on Goines testimony, and they may be entitled have them overturn via habeas corpus. George Floyd was on that list, but he never received notification. It was sent to an old address in Houston after he'd already moved to Minneapolis.

Mandy Marzullo: George Floyd wasn't the first Texan convicted of a drug crime based on uncorroborated testimony or a corrupt police officer. In Texas, the issue first rose to the fore 20 years ago, after the infamous Tulia drug stings, featuring the same dynamics with a mendacious undercover cop exploiting the same systemic flaws that Gerald Goines would manipulate 20 years later.

Scott Henson: Jeff Blackburn is perhaps best known as the founder of the Innocence Project of Texas. But he made his name as a civil rights lawyer representing defendants in Tulia, both in criminal and civil court. We asked Jeff to dredge up some of that history, to eliminate why corroboration measures in the George Floyd Act are needed. Here's how he described the problem.

Jeff Blackburn: My name is Jeff Blackburn, I am a civil rights and criminal defense lawyer from Amarillo. I have been involved in criminal justice reform for a long time, but really got deeply involved in it after I handled a case many years ago, about 15 years ago, called the Tulia case, which wasn't really a case, but a campaign that Scott and I worked on. One of the things that grew out of that was some clear needs for legislative fixes to what had gone on. Of course, a lot of those legislative fixes are still around, and still need to happen.

Jeff Blackburn: Here's what we proposed back then, which is what's been proposed now, which is corroboration of cops in drug cases. What we got was corroboration of informants being worked by cops in drug cases, which I thought at the time was really meaningless. I'm like, "How often does that ever come up?" Right?

Mandy Marzullo: Yeah.

Jeff Blackburn: Sure enough, like in the first week of September after that rule became effective, there were 753 dismissals, and I'm like, "Wow, I have apparently become the most effective criminal defense lawyer in the world. I'm never going to get 753 drug cases dismissed, if I live to be 110." This isn't going to happen. And it demonstrated to me the great power even of a weak-ish statute, which that one is, the one that we got past. It still has great power because of the number of people being ground up in the system all the time.

Mandy Marzullo: So who was Tom Coleman, and how did a man awarded Law Enforcement Officer of The Year by then attorney general John Cornyn, end up framing innocent people, forcing governor Rick Perry to issue the largest mass pardon since the 1930s? Let's let Jeff tell you.

Jeff Blackburn: Tom Coleman was the guy, the cop hired by the Amarillo Police Department. At the time, they had these things that we succeeded in abolishing, called Regional Narcotics Trafficking Taskforces.

Scott Henson: I believe that was the largest, successful defund the police campaign in American history by the way.

Jeff Blackburn: Yeah, it was. No, we killed the whole thing because incidentally, they were all terrible. What they were doing, what these regional narcotics trafficking taskforces did, they would hire the worst of the worst because... They would hire the worst imaginable cops, cops that had been fired from other jobs, cops that couldn't get on as a jailer somewhere. The truth is, he was just a guy doing a job that he was hired to do, which was get numbers. And Hey, nobody was there to say, "These cases look bad. They look terrible." They all were in on it because, everybody knew there was nothing to stop them from filing these cases, and there was nothing to stop those cases from going to trial with bad lawyers.

Jeff Blackburn: So that's how most of them got convicted, except for two defendants that they hadn't been able to arrest, and that ultimately I represented. Then that's kind of what cracked the whole thing wide open because, once we started doing that, we were able to prove that on the day he supposedly got a drug delivery from my client, a lady named Tanya White, she was actually depositing a check for a workers' compensation payment in Oklahoma City. It was too far a stretch to-

Mandy Marzullo: Yeah. Well, that only is like what? 10 hours away?

Jeff Blackburn: Yeah. You can't really drive from OKC to Tulia, do a drug deal, and then drive back to get to the bank before it closes.

Scott Henson: If we had succeeded 20 years ago in acquiring corroboration for undercover drug cops, maybe Gerald Goines testimonial shenanigans would have been spotted long ago. As it stands, he was allowed to do incalculable harm, before the ultimate tragedy exposed his misbehavior.

Mandy Marzullo: Finally, standalone bills will be heard in committee this week to enact more restrictive standards for police use of deadly force, and creating new duties for police to intervene when their colleagues engage in misconduct, and to render aid when people are hurt, even if police officers are the ones who hurt them. Scott, I know you were focused on these topics for many years when you were police accountability project director at the ACLU of Texas. What do our listeners need to know about this legislation?

Scott Henson: Well, I really want to start by explaining that this question of police use of force, is one of the most complicated questions anywhere in the law. The reason is that, it is a place where so many different types of law, and different statutes from different sources of authority all intersect. So you start with constitutional limits on use of force, which largely arise out of the fourth amendment limits on seizure of someone's person. Then you have limits in state law, which may take the form of criminal laws, where you see sometimes officers charged with a crime for using force, or maybe civil statutes that allow them to be sued. And even within those frameworks, there's often several different places within state law where use of force might be addressed.

Scott Henson: So in Texas for example, we have one section to the statute where police use of force in and of itself, like by cops, is addressed formally. And then also, the statute on self-defense that applies to everyone, the Castle Doctrine and all of that, really is the most frequently used defense when police are accused of excessive force in the courts, and that's in a completely different section of the code. So you've got civil, you've got criminal, you've got multiple different places in the statute. And then finally you have administrative limits on use of force at the local level, where each department, and we have 2,500 plus in Texas, will have its own individual policies on use of force.

Scott Henson: What makes all this especially bizarre is that, the federal constitutional limits don't necessarily inform the state statutes on these topics. The state statutes and the constitutional limits may or may not be incorporated into the local policies. And then for that matter, once you have local policies, training may or may not conform with those policies. So there's layers and layers of weirdness and dysfunction here. And so all that to say, I wanted to give that massive framework because, to understand what the George Floyd Act does, and there's a narrower, a standalone bill that has just the use of force provisions that's up this week as well, is to take little pieces of this and try to take first steps. There's an old... You know the joke about how does the lion eat an elephant, and it's one bite at a time?

Mandy Marzullo: Yeah, yeah.

Scott Henson: Well, that's the only way you can attack a problem as interconnected and weird-

Mandy Marzullo: As this, yeah.

Scott Henson: ... As what we described.

Mandy Marzullo: So what's the big, important first step that folks should know about, with use of force first?

Scott Henson: There's two main things that it does on use of force. It takes two important first bites. One is, it narrows the state law use of force that's specifically aimed at police officers. It narrows their authorization. Right now, there are certain simply classes of defendants who they get to shoot, whether they're armed or not armed. If you're accused of a violent crime-

Mandy Marzullo: Or suspected.

Scott Henson: ... Or suspected of a violent crime, then they simply get to shoot you. So we're-

Mandy Marzullo: It doesn't matter.

Scott Henson: .... We're going to limit that to where you need to actually have some immediate danger, some immediate threat that they're responding to. A really, really important first step, not the end all be all, but we have to do that before we can do a lot of other things.

Mandy Marzullo: Yeah.

Scott Henson: The second thing it does, the state is going to create under the statute a new model policy. This will be something driven by academics at universities. They're going to create a model policy that'll be promulgated. Law enforcement will be involved in creating it, but it's going to be created by an independent working group. And then, local law enforcement agencies will be required to adopt use of force policies that meet certain minimum standards, a model be proposed, and hopefully many of them will adopt that or something close. We can upgrade some of that administrative structure surrounding how use of force is defined, and enforced, and all of that at the local level.

Scott Henson: So that's what the George Floyd Act does. It takes two of those discrete pieces and says, "Okay, let's take one substantive step on each of these. We know we're not going to solve everything. We know that there's still other pieces of this that we're going to have to come back to, but let's-

Mandy Marzullo: That's where we are.

Scott Henson: ... start here."

Mandy Marzullo: Well, what about then the duty to render aid or to intervene?

Scott Henson: You know that those two interestingly, have been getting quite a bit more pushback than I think anyone expected. A lot of reformers I think, thought that those were less controversial issues than limiting the use of force authorization, but law enforcement really don't want to render aid to people after they have harmed them. And the fascinating thing to me is, I have yet to see a law enforcement agency's policies that doesn't require officers to help other officers if they're harmed. You're required to render aid, and required to have minimum training so that you're prepared to render aid to your fellow officers. But if it's to a member of the public, they don't want to be required to do that.

Scott Henson: Similarly with duty to intervene, we have seen quite a few agencies have a duty to intervene in their policies. Austin ostensibly has a duty to intervene in their policies. What we don't have is a police administration willing to punish officers when they fail to intervene. And so that has made that duty rather meaningless, when it's just there in the policy of an agency that doesn't want to enforce it. Putting it in statute and requiring the other agencies to have it in their policies and to train on it, again, is not going to be an end all be all. It wasn't in Austin, but we want to raise this discussion up, we want to force the police departments to have this conversation, we want to make them think about what the appropriate policies are and promulgate them. This is the first step in conversation. It's not a final one.

Mandy Marzullo: Okay, excellent.


Scott Henson: Next up, the state auditor recently issued a report that helps us answer a question lone star state leaders have struggled with, ever since Texas first became a republic. In what industries is slavery profitable as a business model? And when does coerced labor make no economic sense?

Mandy Marzullo: To be clear, Texas is one of only three States that pay prisoners nothing for their labor. So all prisoner labor in Texas is by definition slave labor, which is the only circumstance under which slavery is still allowed after passage of the 13th amendment. The auditor identified several areas where TDCJ produced goods that are more expensive than if they'd purchase them on the open market. Indeed, 46% of goods categories produced by TDCJ could have been purchased more cheaply elsewhere.

Scott Henson: I suggested making a little game of seeing if Mandy could guess in which industry slavery remains economically viable in the 21st century. Mandy, I assume you're not only ready, but 100% comfortable with this dubious premise, and prepared to endorse the auditor's notion that, slavery based industry should be judged based on their profitability. Is that an accurate assessment of your position?

Mandy Marzullo: I'm going to say that I am outcome oriented on this. I am okay with the premise, if it says what I want it to, which is, no.

Scott Henson: Well, let's find-

Mandy Marzullo: This is just not a good idea.

Scott Henson: ... Let's find out. All right. First up we are in Texas, so you would expect there to be a sizable cattle operation here. But tell me Mandy, do you think that raising cattle, that beef production is a profitable slavery-based industry in the 21st century?

Mandy Marzullo: I would say no. I wouldn't expect there to be much labor in that, so I wouldn't imagine that you'd be saving on it.

Scott Henson: You are incorrect. This is actually-

Mandy Marzullo: No.

Scott Henson: Yes. This it turns out, beef production is far in a way the biggest profit center that they have among all of their various production. There was $101 million in cost savings.

Mandy Marzullo: Wait. Did they put in there or factor in like how much value the labor provided to each of these categories?

Scott Henson: Well, what I'm looking at here is a table that tells us how much they saved or paid more than they would have paid in-

Mandy Marzullo: But the beef they're not keeping, right? They're just selling.

Scott Henson: That's right, they're selling that. 

Mandy Marzullo: So it should be a profit otherwise.

Scott Henson: That's right. So that was $101 million in the black, their largest of all of the ag business categories that they list here. So now, beef is definitely one that slavery is still profitable, to do beef at TDCJ. All right, well let's go to an oldie but a goodie. If we're going to have slavery, let's talk about whether it's profitable to use it to pick cotton. I feel as though the fact that we're still doing this in 2021, that every single day, TDCJ is sending black men out into the fields in the summertime to harvest cotton, is an amazing concept. So tell me Mandy, do you believe in your heart of hearts that picking cotton remains a profitable slavery-based industry in 2021?

Mandy Marzullo: No. I'm going to go with no. I thought there were harvesting equipment for that now.

Scott Henson: That is a very good point. Cotton is one of the field crops they produce. And the field crops in Toto, Cotton is the biggest one. Lost a little more than $6 million over the last five years, so cotton is not profitable any longer according to TDCJ's experience, to pick with slave labor.

Mandy Marzullo: It's not profitable. Well, it's-

Scott Henson: The cause is lost.

Mandy Marzullo: Well, as long as they're not doing it, I'm happy with that.

Scott Henson: Oh no, they're still doing it.

Mandy Marzullo: No.

Scott Henson: No, no, that's not the point.

Mandy Marzullo: Well, I thought they were going to stop doing it if it wasn't profitable.

Scott Henson: It would be an amazing thing if they stopped doing it, really.

Mandy Marzullo: Because, we have got a lot of things that they could do with that $6 million.

Scott Henson: The history and culture behind the ag program at TDCJ is its own beast. If you've never been exposed to it, it's hard to explain how much it drives its own train behind the scenes, and it hadn't changed in 100 years. In 1919, Texas stopped convict leasing, which was taking prisoners and hiring them out to businesses. Like Imperial Sugar down in Sugar Land would hire prisoners, and they would work in the sugar fields. And in 1919, they stopped the convict leasing after big national controversies, but just brought all of that in-house, and have been performing the same agricultural functions, even though the sugarcane's all gone long ago. But that's not because they wanted to stop, it's just because they picked it all.

Scott Henson: But they have continued to operate essentially the same system for the last 100 years. And so this audit is asking them questions no one has ever thought to ask before. Why do we do this? Does it make economic sense? No one's given that a second thought for decades and decades and decades. That isn't what it was about.

Mandy Marzullo: Yeah.

Scott Henson: It was never what it was about. All right. Well moving forward, let's talk about pork, and I don't mean pork barrel politics, I mean Sooie pig pork.

Mandy Marzullo: I'm going to go with yes, based on the fact that beef was profitable.

Scott Henson: Are you sure? Because-

Mandy Marzullo: I would imagine that the same premises apply. There might be more overhead because the hogs need their air conditioning to copulate.

Scott Henson: Well that's what I was going to say. You've got air conditioning for the hogs, we have seven special barns so that they can be comfortable, because we know that hogs won't have sex if they have to sweat. This is a proven scientific fact that everyone who's fighting wild boars on their private property knows to be true. All these hogs have to go indoors to the air conditioning, then come back out before destroying your property.

Mandy Marzullo: Yeah, that is exactly what happens. I am going to still go with yes, based also on representatives and how proud they are of the hogs that TDCJ produces. They're some of the finest hogs in the state, Scott.

Scott Henson: They really are proud of those hogs, and yes pork is one of the profitable centers. It turns out, you still can raise hogs even in air conditioning based on slave labor.

Mandy Marzullo: Yeah, and turn a profit.

Scott Henson: And turn a profit, yes.

Mandy Marzullo: I'm glad that worked out for them.

Scott Henson: Good for them, yes. All right. Last one, TDCJ operates and has for many years its own canning operation, where it cans its own foods stuffs mostly for its own use. Do you believe that this is a profitable operation to run as a slavery based institution?

Mandy Marzullo: I would think that there'd be a lot of labor in canning, so I'd go with yes.

Scott Henson: Surprisingly, the canning plant lost money every year over the last five years, for a total of $3.3 million in losses. So the canning plant, manufacturing, our only manufacturing example, was not a profitable-

Mandy Marzullo: Profitable enterprise.

Scott Henson: ... Activity using slave labor. I have to say, I don't a 100% understand what distinguishes having no labor costs being profitable or not profitable. I find this to be fascinating, and would love to see someone really dig into that because, you could have knocked me over with a feather to find that there are things you can do with zero labor costs and still lose money.

Mandy Marzullo: Yeah. Well, it just makes you wonder, how much is the technology behind this? Is it the materials? Is it just-

Scott Henson: Security costs I suppose. But either way, it's a bizarre thing that I would never have expected until I saw this state audit. One last thing I should mention there, TDCJ's work programs really are 100 years behind the times. No one is getting out of TDCJ and going to work in the cotton fields.

Mandy Marzullo: Yeah.

Scott Henson: That's not what's happening. So a few years ago, I believe it was 2016, the State of Ohio closed all their prison farms. And of course, Ohio has a farming tradition as deeply rooted as Texas does, but they closed all their prison farms because, that's not the type of job that they're training prisoners to do. And so, it didn't make any sense to have them do that labor when you could have them performing labor that might in some way correlate with something they might do in the real world.

Mandy Marzullo: Yeah.

Scott Henson: If this audit makes Texas look at that question and start to wonder if this is the right way to go, more power to them. I have never seen any way to get TDCJ to rethink these questions. They're so deeply rooted.

Scott Henson: Next up, earlier this year, Mandy published, I'm not sure what to call this exactly, a white paper, a monograph, a report, a policy brief, on the law of parties in Texas. She did this on behalf of the Texas Public Policy Foundation. I found all of this fascinating because, it's an area of the law that most people have never really deeply considered, and you have now thought about this more deeply than probably anybody in the state. So, I wanted to give you a chance here to tell us about your report, tell us why you undertook this project, what you found, and what people need to know about the law of parties, now that you've done all of this research.

Mandy Marzullo: Okay. So the report was really to outline what people view as a law of parties, and how it results in disproportionate sentences, because it's something that people talk about a lot at the legislature. It comes up on a regular basis, but folks are not always talking about the same thing at the same time.

Scott Henson: So what is the law parties? Give us an elevator pitch definition.

Mandy Marzullo: The law of parties is a provision in the Texas penal code, basically it says that you can be held accountable for someone else's conduct. So there are two big categories of how this can happen. There's the classic aiding and abetting, or solicitation, or directing people. Those are all situations where you're intending that someone else engage in certain conduct. Hiring a hitman is the classic example.

Scott Henson: Right.

Mandy Marzullo: The other one is a bit more obscure, and in the report, we've referred to it as the conspiracy party's rule. And that is, if you and a friend agree to rob a bank, you're on the hook for everything that your friend did to promote that plan to rob a bank, that you should anticipate. So if your friend robs a car for you to drive off, you're now legally-

Scott Henson: On the hook.

Mandy Marzullo: ... On the hook, just as culpable as your friend.

Scott Henson: Or engages in a kidnapping, or even commits a murder.

Mandy Marzullo: Yeah, exactly.

Scott Henson: In the most extreme case. So the law of party says, I entered into this dangerous situation, I should have known better. And when my friend did something, I'm now responsible too.

Mandy Marzullo: Yeah, exactly, even if you back out sometimes. So in the report, we describe situations where two men agree to burglarize someone's apartment, and in this case, it was actually the defendant wanted to recover his own property. Actually, it wasn't as though he was trying to rob a place, he just wanted stuff that had been stolen from him.

Scott Henson: I believe we talked about this case in the podcast earlier.

Mandy Marzullo: Probably. And he said, his friend pulled a gun on the occupants of the household, and his friend asked him to hit the victim over the head with a bottle, and he said, "No," and went into the other room to look for his stuff. And when he came back, there was a scuffle and a gun went off. He was actually convicted of attempted capital murder, even though he had explicitly said, "I'm not participating in this."

Scott Henson: That's the piece that I think would surprise average Texans, I think that the idea that there are people on death row who weren't the ones that actually pulled the trigger or committed the murder itself. You tend to think of death row as the worst of the worst, not the friend of the worst of the worst.

Mandy Marzullo: Yeah, no, exactly. It's actually a constitutional mandate that states limit the death penalty to the worst offenders who commit the most egregious crimes under the most egregious circumstances. That's really where Texas is out of step with the constitutional requirements, both in that, we have people on the row like Jeff Wood who were just getaway drivers, who weren't even aware that their friends were necessarily armed. The standard itself is out of alignment with the eighth amendment. So the US Supreme Court, a little over 30, 40 years ago said that, if you're going to execute someone who is not a perpetrator, you need evidence that that person at a minimum, was a major participant in the conspiracy, and that they were reckless with respect to human life.

Mandy Marzullo: Texas' standard actually just says that you should have anticipated what your friend did to be convicted, and then there is a question at sentencing, but it just requires that you anticipate that human life would be taken. It doesn't have a requirement that the person involved was a major participant in the conspiracy.

Scott Henson: I often think of these law of parties cases, especially in the death penalty context, as part of this weird trend we've seen in the past 15 years or so, where we've had an explosion of capital cases. We're now to the point where more than a quarter of murder cases are now charged as capital. If it was ever the worst of the worst, it's now pretty just average work-a-day murders that are there.

Mandy Marzullo: Yeah.

Scott Henson: And when you start to dig into, what are the types of cases that are in this expanded category of capital cases that maybe shouldn't be, one of them that pops up that you think, "Gosh, what's that doing there?" are these law of parties cases where, the guy who was in the car outside, does he really need to be prosecuted for what the guy did inside the convenience store? I know we've had, you probably know the numbers, quite a few executions already with law of parties cases, and a few more on the row still.

Mandy Marzullo: Yeah.

Scott Henson: What are those numbers?

Mandy Marzullo: Well on the row, it's hard to even say because it's being litigated in a lot of cases. But what I can say is that nationwide, there have been 11 executions for non-perpetrators, and six of them have been carried out in Texas. At least the last two, the most recent ones have been out of Texas. So we're an outlier there. The problem with even in death penalty cases is that, sometimes there is no specific record of how someone is convicted of their crime because, our indictments are general. So there's no statement in the indictment about how someone is alleged to have perpetrated a crime, which is different from some states and from the federal system.

Mandy Marzullo: And then also, the verdict is general. So what can happen is, at the trial, depending on the facts of the case, and the request from the state, jury can be instructed that they can convict the defendant on multiple different ways, and the jury can disagree amongst themselves. The judge will say, "You can convict the defendant of capital murder if you think the defendant committed the murder, aided and abetted the murder, or if their friend perpetrated the murder in furtherance of the bank robbery."

Scott Henson: So the jurors don't have to agree on a theory.

Mandy Marzullo: They don't have to agree on a theory.

Scott Henson: Wow.

Mandy Marzullo: So in a lot of ways, in some cases really, there is no specific way that they were convicted of the crime.

Scott Henson: Wow. That is an amazing thing to contemplate. Now one last thing, there are at least a couple of bills up related to this. Tell us about the legislation on these topics.

Mandy Marzullo: Yes, there are two bills that are up tomorrow, April 6th in jurisprudence. I think the big thing to know about them is that, they're both extremely modest steps in response to this problem. The first bill, Chairman Dutton's Bill 688 says that, the Conspirator Party Rule 702 B just doesn't apply to capital murder. You can still be convicted of murder under 702 B, and you can still be convicted of capital murder under aiding and abetting. So it's not cutting off all people, it's just limiting capital murder to intentional conduct.

Mandy Marzullo: The second option is by Chairman Leach, and I believe Chairman Dutton is also joint authoring it, is to take the eighth amendment standard, and make that the standard for convicting someone of capital murder under the Conspirator Party Rule. So you're only on the hook for a murder in furtherance of the bank robbery, if you're a major participant in the bank robbery, and you're reckless with respect to human life. So you have some reason to know that your friend might actually kill someone. You have to know that they're armed or something of that nature.

Scott Henson: Thank you very much for telling us all about this, and thank you for producing this report.


Scott Henson: Finally, let's close out the podcast with one of our suspicious mystery segments, in which Mandy and I contemplate big picture criminal justice questions to which no one knows the answers. Does police enforcement of traffic laws contribute to traffic safety? We all assume that police enforcing traffic laws are why people obey them. But from 2008 to 2020, the number of traffic and parking tickets issued statewide plummeted from 9.1 million down to 4 million. Remarkably though, this seemed to have little impact on deaths per mile driven, which fluctuated over the period, but remained largely flat. So a greater than 50% reduction in traffic tickets resulted in roughly equivalent or slightly improved road safety levels, at least measured in terms of deaths per mile. Mandy, what do you think is going on here?

Mandy Marzullo: I'm really shocked. I was really surprised when I saw this data. My best guess is road design. That they're adding lanes to highways, they're figuring out how to basically move traffic in a way that's safer. That's the only thing that I can think of that would explain this, other than enforcement.

Scott Henson: Well, I think the first takeaway we can have, we don't know what's causing deaths to go up or down. They're really just up one year down the next, they were not... There was really no rhyme or reason to it. When you look at it over the course of the decade, it was basically flat, and maybe went down just a little bit. But I think at a bare minimum, you have to acknowledge that enforcement appears to have very, very little to do with safety in terms of deaths. That when you reduce the number of tickets by more than half, deaths just stay right there-

Mandy Marzullo: Right there.

Scott Henson: ... And don't really have any up or down at all, and just stay right in the same.

Mandy Marzullo: Yeah, you're right actually, now I'm thinking about it, but yeah.

Scott Henson: What are we supposed to conclude from that, except that the 5 million extra traffic tickets that were given 12 years ago weren't really necessary?

Mandy Marzullo: Probably, except it's hard to know like, with no enforcement, would people stick by the state by the rules?

Scott Henson: Right. Well, and enforcement serves a lot of purposes. There's an extent to which it has beyond being punishment for violating a rule. It also has as you've pointed out to me before, a communications role.

Mandy Marzullo: Yeah.

Scott Henson: That the cops sitting on the side of the road is sending a message to everyone even as they pass by that, "Oh wait, you better slow down or you might get a ticket." But in the same way, we've seen a lot of innovative traffic calming designs. For example, I really like the one where they tell people their speed on the side of the road, and have a little sign that says, "You're going 45 miles an hour, or the speed limit is 35, slow down."

Mandy Marzullo: Yeah.

Scott Henson: People notice that and slow down. Those actually mostly work, and it's because people aren't being unsafe on purpose. It's not that the average person is intentionally trying to be a menace. It's that they're distracted, it's that they're listening to the radio, or they're on the phone, or their kid's in the backseat distracting them, and they're not paying attention to everything that's going on around them. So I do think that there's a lot of things that influence how people drive, that are not, "Oh, I fear punishment." And seeing such a radical reduction in punishment-

Mandy Marzullo: With no impact on-

Scott Henson: On safety, kind of makes you think that we've overstated how important that was.

Mandy Marzullo: I think that is probably true.

Scott Henson: All right. We're out of time, but we'll try and do better the next time. Until then, this is Scott Henson with Just Liberty.

Mandy Marzullo: And I'm Amanda Marzullo. Goodbye, and thanks for listening.

Scott Henson: You can subscribe to the Reasonably Suspicious Podcast on iTunes, Google Play, or SoundCloud, or listen to it on my blog Grits for Breakfast. We'll be back next month with more, and hopefully better news. Until then, keep fighting for criminal justice reform. It's the only way it's going to happen.


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