Thursday, May 27, 2021

Fascism Unsheathed: Let's be very clear about what just happened at the #txlege

For many years, your correspondent has sought to work in a bipartisan fashion at the Texas Legislature on criminal-justice reform, and I've taken a lot of crap from folks on the left for working closely with Republicans who are sometimes, shall we say, less than ardently committed to the project. 

Beyond the simple math of needing Republican votes in a red state to pass bills, my response has been that more moderate, pro-social elements in the GOP needed to be affirmed and bolstered. The GOP base in Texas includes totalitarian, racist elements which lately have been swirling in a near-policy-free furor of anger and resentment. By engaging with libertarian factions and more compassionate elements in the religious wing of the party, I've argued in innumerable trainings and funder conversations, the criminal-justice reform movement in Texas was attempting to "blunt the spear tip of American fascism."

In 2021, the spear tip was unsheathed and thrust deep into the body politic: A combination of the pandemic, President Trump's defeat, and the January 6th insurrection seem to have finally awakened the beast. This was the year the far-right wing of the party finally got its wish list they'd been denied in the 20 years since Republicans took power in Texas: The entire legislative session was about abortion, guns, jingoism, and "backing the blue." Compassionate conservatism and non-gun-themed libertarianism were more or less banned from the building, or at least the eastern wing.

The Texas House, with a larger, more ideologically diverse membership, retains a broader array of Republicans that still includes some "small government" and/or "compassionate" types. They managed to pass several significant criminal justice reform bills, but virtually nothing of consequence made it through the senate. Reforms with overwhelmingly positive, bipartisan polling numbers like reducing marijuana penalties and ending arrest/jail for Class C non-jailable traffic offenses could never even get committee hearings on the eastern side of the building. Instead Sen. Joan Huffman wasted weeks on a failed effort to gerrymander appellate courts to rescind recent Democratic gains.

Some of this lurch toward totalitarianism was overt and ham-handed, perhaps most notably legislation to require sports teams to play the Star Spangled Banner. More insidious were attempts to control historical narratives about race and slavery in Texas schools and museums. These efforts were as shameful as they were transparently authoritarian. We're just a step or two away from parading historians through the streets in dunce caps. 

Perhaps the most subtly fascist influence radiating out of this session was HB 1900, ostensibly punishing cities that "defund police." Large cities and counties henceforth must prioritize spending on law enforcement, leaving roads, parks, social services, or any other traditional municipal functions to wither in a time of massive urban growth. 

Grits believes the purpose here is both political and dystopian: Texas' large cities are now almost all (but Fort Worth) run by Democrats. So the Governor and his allies aim to make cities un-manageable, then blame Democrats for mismanaging them. Given the state's largely lapdog political press, I understand why he thinks he'll be able to control that narrative and redirect blame. He's probably right.

It's a valid and effective political strategy, even if it's nonsensical bordering on asinine as public policy.*

If HB 1900 is enforced, it will be incredibly harmful: All large Texas cities have for years already prioritized police spending over other municipal functions which have languished and at this point require investment this bill will prevent. 

Now, new spending must go first to the cops, and with municipal revenue caps installed last session, that pretty much precludes spending on anything else. This exacerbates the problem of which police chiefs have complained for years: that they're being tasked to solve social problems for which they're ill equipped. Nowhere is that dynamic more clear than in the statewide homeless ban, which criminalizes cooking or sleeping outside under a blanket. Poor people evicted from their homes? Send police. Mental illness untreated? Send police. Veterans with addiction and/or PTSD who can't hold a job and end up on the streets? Send police. Elderly people forced to live in tents because inadequate social security checks won't cover escalating rents? Send police. I can't think of a clearer definition of authoritarianism. 

Not only does the legislation criminalize poverty and punish it with unreasonable penalties (fining homeless people is a fool's errand and jailing them for sleeping accomplishes nothing), it begins the process of de-linking law enforcement from civilian control. HB 1925 prevents cities from setting policies for police departments' enforcement priorities regarding homelessness, making them over time both ever-more extravagantly funded (thanks to HB 1900) and increasingly unaccountable to the cities paying their bills.

Who knows how far we'll head down that path? But history generally views with disapprobation those periods when the armed agents of the state are left free to abandon the public weal and act in their own interests. The Roman legions, for example, were prone to deposing emperors who asked them to pound swords into ploughshares. Law enforcement interests in Texas behave the same way, which is why Emperor Abbott panders to them so incessantly.

Grits see this as a camel's nose under the tent, mandating cities fund police departments to the exclusion of other priorities while eviscerating cities' policy-setting role and leaving the cops as independent actors. Well-funded, unaccountable law enforcement acting as independent agents outside of civilian control is the sort of situation that makes me use a harsh term like "fascist." The net sum of all these policies taken together aims Texas' largest jurisdictions squarely in that direction.

Indeed, this year it became evident that police reform of even the smallest sort cannot occur in Texas while Greg Abbott and Dan Patrick remain in office. Both of them defer almost completely to police-union interests on criminal-justice policy. Even the "Sunset" bill for the Texas Commission on Law Enforcement could not pass. Legislators wanted to create a "blue-ribbon commission" to study reforming the police licensing agency, but police unions don't want reforms proposed and so killed the bill outright. 

Of roughly eight different bills making up the Texas George Floyd Act package, only one (banning chokeholds) made it through in anything close to the original, filed version. Another, the "duties" to intervene and render aid, passed in a form that will almost certainly guarantee no interventions and very little aid. 

Two years ago, I wrote that 2019 was a "killing field" for criminal-justice reform bills; this year was worse. This time, law enforcement wasn't just killing off reform proposals, they were ascendant, insisting their interests be prioritized above all other public-policy goals or community values. And Texas state leadership all but fell over themselves giving them everything they wanted.

This blog and Just Liberty, the group I work for, focus a lot on wonky minutiae in order to identify narrow reforms both parties can support. But we can't wonk our way out of this political moment: What's at stake is nothing less than the soul of the state and arguably, given national implications of Texas' role in the GOP and the electoral college, the future of the American political experiment.

Texans of good will: Today, you're living through the American equivalent of the Weimar Republic and history has placed us at the epicenter of far-right-wing ascendance in American politics. Behave accordingly. We may not get another chance.

*More than asinine, to channel Stephen A. Smith, this is assi-ten, ass-eleven ...

Friday, May 21, 2021

On the Myth of Prison Closures Generating Cost Savings: How TDCJ can ↓ prisoners by 20% and still see costs rise nine figures per biennium

From the earliest days your correspondent first showed up at the Texas Legislature, I've been grumpy about how they score "fiscal notes" related to bills increasing incarceration. Dr. Tony Fabelo and I used to go round about this when he led the Criminal Justice Policy Council.

Bills that increase incarceration are deemed to have no significant cost, even though every additional prisoner requires supervision, food, healthcare, etc.. And bills that decrease incarceration weren't deemed to generate budget reductions on the grounds that no real money was saved unless the state closed prison units and could save money on guard salaries.

So, for years, bills increasing incarceration were treated in the state budget as freebies while bills reducing incarceration received no credit from budget writers. 

Then, in 2013, Texas finally broke through and reduced incarceration enough to begin closing units. Since that time we've closed about a dozen of them. And yet, every session, TDCJ's budget goes up and up.

It turned out to be a myth that closing prison units would reduce the budget. Frankly, your correspondent is as surprised as anyone, though with 20/20 hindsight it's easy to see why.

Texas has reduced its prison population by about 20 percent, but most of that reduction has come among prisoners with shorter sentences. Meanwhile, the big cost drivers at TDCJ are 1) healthcare for elderly prisoners and 2) deferred maintenance on old units.

So, even with the lowest prisoner population in the 21st century and a dozen units shuttered, TDCJ's latest budget includes huge, nine-figure increases:

Turns out, elderly prisoner's healthcare costs and deferred maintenance are bottomless pits and reducing prisoner numbers hasn't slowed them down much at all. Whenever costs are reduced from prison closures, there's a massive backlog of expenses they want to spend that money on, so the budget never goes down. Prison closures could theoretically be targeted to units with the highest maintenance costs. But there are other factors like terrific staffing shortages at certain rural units that also drive closure decisions.

It's now clear TDCJ's budget growth can't be contained without reducing incarceration among the cohort with the longest sentences. The Life Without Parole cohort has exploded since 2005, and thousands more prisoners in their senior years face decades-long sentences that could conceivably keep them there until their deaths.

Many Texans might think that's okay for murderers, sex offenders, and others with especially long sentences. But those cohorts also have among the lowest recidivism rates among releasees (they've typically long-ago aged out of crime, and most murders are one-offs). And here's the catch: Medicare doesn't pay for prisoner healthcare, so if Texas chooses to keep them incarcerated, it must pay 100% of costs for long-term and ultimately end-of-life care. 

That said, this is a surmountable problem using mechanisms available under current law. With the exception of those with LWOP sentences (who're mostly not elderly yet, anyway, though they'll contribute to the problem soon enough), some 60 percent of TDCJ prisoners are eligible to be paroled immediately. Indeed, some 15,000 of them have already been approved for release but remain incarcerated because TDCJ only provides treatment services post-approval. Legislation to move the treatment timeline up passed the Texas House but the Lt. Governor as of this writing has refused to refer the bill to committee.

So for the time being, expect Texas prison costs to keep ballooning: Looking at the bills still moving in the waning days of the 87th Legislature, the state doesn't appear poised to change any of the dynamics causing it.

Monday, May 17, 2021

Might "anti-defund" legislation demilitarize and redefine 21st century policing? On the predictable if unintended consequences of micromanaging city budget decisions

Grits has been thinking about "defund the police" legislation (HB 1900) at the Texas Legislature, which seeks to punish Austin's budget decisions from last year shifting money from police to EMS and making the crime lab and 911 call center independent. The bill would punish cities that reduce police budgets unless the overall budget reduces by the same proportion. If the overall budget increases, the police budget must increase to retain its prior, overall percentage of spending. In other words, henceforth, in cities with more than 250,000 population, every new investment in roads, parks, housing, infrastructure, mental health, addiction treatment, homeless services,  etc., would have to be matched with increases to the police budget.

On its face, this would bind Texas cities' hands and make them all but unmanageable. After all, the biggest problems they face stem from the fact that their predecessors over-invested in police, jails, and prisons to confront social problems instead of investing in other solutions (e.g., mass transit, mental-health-and-addiction services, transitional housing and services for the homeless).

I believe that's the goal: A feature, not a bug. Governor Abbott intends to make Texas cities unmanageable and then blame Democrats for mismanaging them. If Republicans ever regained control of these jurisdictions, his office would cease to enforce the "defund" strictures (it's 100% at his discretion), and I wouldn't expect these requirements to ever be imposed on Republican-led cities, even though several of them in recent years have reduced their police-department budgets.

But for large cities which for the foreseeable future are governed by Democrats, this creates a conundrum. Big-city police chiefs have been complaining for the past decade that their officers are being asked to impose criminal-justice solutions to what are essentially social and healthcare problems they're ill-equipped to handle. Now, though, the Legislature is poised to insist cities can only confront these problems with police: A full-blown Catch 22 from a management perspective. They're leaving cities with no good options to address urban problems, which again, Grits believes is the point.

That said, I also believe this ham-handed attempt to bludgeon city leaders underestimates the variety of tools at their disposal and the wide array of methods available for cities to get around any strictures.

I'm sure there are many options, but here's my first thought: If the anti-defund bill passes, cities should begin to deploy unarmed officer cohorts whose primary functions fulfill the needs they'd otherwise fund in other parts of the budget.

Anyone who's traveled to the UK has seen unarmed police officers ably enforcing the laws as surely as American cops do with guns, and when they're needed there are special armed squads which can be called out or beat officers can be armed in a pinch. 

Here, though, Grits suspects squads of unarmed officers might be deployed much differently. For example, using money diverted from the police budget, Austin has begun having EMS respond to certain mental-health calls, with impressive early successes. If they're not allowed to expand that going forward because money must be spent on police, that won't obviate the need for non-carceral solutions to untreated mental illness. 

So what should they do? No one but fools think Texas can arrest its way out of these problems. And once legislators go home (without having expanded Medicaid, I should add, which might pay for non-carceral mental-health treatment), cities will still have to confront these issues with whatever tools are left in their toolbox. 

Consider the possibilities of unarmed social-or-health workers with a badge but no gun responding to homeless and mental health calls, possibly working closely with or even for the expanded EMS cohort recently created for mental-health first response and various city service providers. Whereas past protocols put officers in charge when they were on site with EMS, those roles could just as easily be reversed, particularly for the squad of unarmed officers whose primary role isn't arrest-and-incarcerate.

Such a program could include specialized recruitment and training to get people with relevant backgrounds in health care or social services who want to, say, work with the homeless or the mentally ill but don't want to carry a gun, enforce traffic laws, fire bean-bag rounds at protesters, etc..

These unarmed officers could always call their armed colleagues if needed but would primarily be deployed at tasks where it's not. Over time, cities could identify other activities where unarmed officers could fill roles that, in a more rationally governed state, might not normally be associated with law enforcement. But if cities are only allowed to fund cops, don't be surprised if the definition of "cop" inevitably expands.

The governor and his allies intend to box cities in, but I suspect they're making a strategic error. There's a bit of common military advice dating to Sun Tzu: Never completely surround an enemy's army; surround them on three sides and leave open the path you want them to take. The "defund" legislation does the opposite, attempting to surround cities completely and give them no path at all to move forward. Sun Tzu counseled that this could lead to either a) desperation and a bloodbath or b) creative tactics by the enemy that exploit one's army's overreach.

The latter is where I think this is headed: The Legislature meets only once every two years while city councils meet all the time and deploy vast bureaucracies to find ways to bypass legal barriers erected at the capitol. There will be several obvious workarounds, but here's a starting point: If the "punish defunders" legislation passes, Grits believes it will mark the beginning of a transformation of the definition of "police officer" as cities deploy services under the policing banner to confront problems they're not allowed to pay for in other parts of the budget.

If cities can only spend money on cops but the problems they must confront are only tangentially crime-related, inevitably they will begin to adjust what police do to deploy the only resources at their disposal at the biggest problems facing their constituents.

If I'm right, the "defund" legislation could have an unintended consequence of rapidly altering the definition of what it means to be a "police officer" in this state. How ironic would it be if this train wreck of a policy, promoted in the name of defending law enforcement, ends up being the trigger that launches its devolution into a less militarized, more service-focused 21st-century institution?

That outcome's not inevitable - the police unions would fight it, just as the Roman legions resisted pounding their swords into ploughshares - but Grits wouldn't be surprised: As the prophets foretold: The arc of history is long, but bends toward justice.

Monday, May 10, 2021

Austin PD failed to define 'resistance' that justifies use of force, made up 'unique' category of force vs. suspects who're 'fixing to' resist

In 2008, Austin PD changed its "use of force" policy to  a "response to resistance" policy, enacting a "Dynamic Resistance Response Model" (DRRM) developed by national experts with the aim of "helping officers to prevail against allegations of excessive use of force," according to a new report from Austin's Office of Police Oversight.

But unlike other agencies that use a "response to resistance" model, the Austin Police Department's General Orders do not define "resistance," much less outline what force may be used by officers in response.

Instead, resistance is used as a catch all and defined as anything that would justify use of force by a "reasonable" officer. This is language from a US Supreme Court case, Graham v. Connor. 

Grits should mention here: I've been reading technical, bureaucratic, legal, and academic writing on police use-of-force issues for about 25 years. Part One of this memo vis a vis response to resistance, providing both legal and conceptual frameworks for understanding the issue, may be the single most clear, cogent, well-written discussion of the topic I've ever seen. Good job, Farah Muscadin!

She outlines how American police department policies broadly regulate police use of force in one of two ways: the "just be reasonable" approach or the "continuum" approach. The DRRM purports to employ a continuum and APD touts the various resistance categories frequently in its rhetoric surrounding use of force. But Muscadin revealed that the actual APD General Orders do not employ a use-of-force continuum. Instead, they merely say officers' actions will be judged based on whether they're "reasonable," but give no guidance as to details.

Muscadin recommended defining "resistance" and detailing a use-of-force continuum similar to other departments which have adopted the DRRM.

Perhaps most remarkably, though, Muscadin revealed that Austin PD has created an additional type of "resistance" - "preparatory resistance" - which appears to be unique among US policing agencies. 

Most agencies that use DRRM use four categories of resistance: Passive, Defensive, Active, and Aggressive. Some use different language, but the concept is the same: Passive resistance is being non-responsive; defensive is trying to get away; active is engaging in combat with the officer; aggressive are situations putting life and limb at risk.

The threshold between when it's acceptable to use force against a suspect more or less falls between "passive" and "defensive."

But Austin has inserted a fifth category between those two: "Preparatory resistance," defined as when the suspect is "preparing to" offer greater resistance but hasn't yet. (Think of it as "fixing-to" resistance, as in, "the suspect was fixing to resist, so I tazed him.") The OPO reviewed 15 other agencies' use of force policies, including nine that used DRRM, plus state of Texas standards and the original research on which the approach is based, and Austin's use of this "preparatory resistance" category appears to be both "unique" and unjustified. Muscadin recommended getting rid of it entirely. 

This analysis raises two, immediate questions: First, will the City launch a community-driven process, as Muscadin suggested, to "finalize definitions" for various "resistance" categories and to debate the appropriate police responses and policies for each? It's been nearly a month since her report came out and we haven't heard a peep from city or police officials about it. They've all been too busy pushing to relaunch the police academy.

Which brings us to the second issue: If APD hasn't even defined "resistance" in their "response to resistance" policy, and it turns out the policy is a hodge podge that makes up terminology and conflates differing approaches to police use of force standards, is the agency really ready to begin training on it three weeks from now? What do they train on if they haven't even defined "resistance"? When do they tell officers to respond with force?

I don't know. I'm pretty sure they don't know. (Before Muscadin's report, nobody was raising these issues.) But it's another reason to think the city was premature to relaunch the police academy without finishing the publicly accountable makeover reformers were promised last year.

Sunday, May 09, 2021

A #cjreform update for 'The Devil's Dictionary'

"The Devil's Dictionary" by Ambrose Bierce remains one of my all-time favorite satirical works. But it's become increasingly dated over time, centered as it was on political questions of his day (1880 to 1911) as opposed to those which preoccupy us now.

Your correspondent focuses mostly on criminal-justice reform, and it's evident upon even a sideways glance that terminology from that field largely escaped Bierce's comic gaze. He did refer to prisons as the purview of the "stone wall, the political parasite and the moral instructor," which I love (even if, today, the first two features have largely eclipsed the third), and police as "An armed force for protection and participation." 

His definition of "arrest " - "[f]ormally to detain one accused of unusualness" - remains as valid today as when he wrote it. And in the wake of the passage of anti-homeless legislation in the Texas House, Grits particularly appreciated Bierce's definition of "distance" as "The only thing that the rich are willing for the poor to call theirs, and keep." But many justice terms were omitted.

Grits thought it might be a fun project to suggest a few new definitions that remedy this longstanding defect. It may turn out to be a recurring effort or just a Sunday-morning one off - we'll see how it goes - but here are a few offhand suggestions. Please feel free to try your hand at others in the comments.

Bail: The process by which society separates wealthy criminals it tolerates from the poor ones it doesn't.

Crime: Written artifacts of political deference from the past. In American democracy, a "crime" is one of several thousand things (no one knows for sure how many) which at some point in history offended the eyes or pocketbook of a person to whom legislators were beholden.

Clearance rates: A rarely-discussed measurement of police incompetence.

Police unions: The armed agents of the state organized in such a way as to maximally intimidate their employers.

Police associations: A euphemism adopted by police-labor leaders who despise both unions and progressivism while desiring the benefits of both.

Police beat (journalism): A sinecure for stenographers.

Meet and confer: An economic process by which slumbering taxpayers are fleeced behind closed doors, waking in their bare skin at the start of the following budget cycle after the wool has already been sent to market and future proceeds have been assigned.

Less lethal: Lethal. (See also, "a little bit pregnant.")

Reform: The point at which vectors emerging from the most disappointing outcome and the best possible one converge.

Response to resistance: When police use violence.

Resistance: Any action by a private person contrary to a police officer's desire, expectation, or demand, whether legal, reasonable, or otherwise.

Officer-involved shooting: Police are "involved" in officer-involved shootings in the same sense the term is used to describe one's bacon-and-egg breakfast: The chicken is involved; the pig is committed. Just reversed.

N.b., this is a work of satire. Comments from humorless scolds will either be deleted or mercilessly mocked, depending on my mood.

Friday, May 07, 2021

Five Observations and a Prediction: Why police budget hikes could become a thing of the past in Texas if HB 1900 becomes law

In no particular order, here are five observations and a prediction about a week filled with losses for the Texas criminal-justice reform movement at the Texas Legislature and in San Antonio and Austin.

#1: Policy fights now head to the courts

Every policy fight can and frequently does play out in an array of venues and the legislative process is only one of them. Some of the legislative losses this week are on topics - more restrictive detention policies from bail reform, limiting prosecutor discretion on new anti-homeless laws and arrested protesters, dictating home-rule-cities' budget prerogatives, etc. - that Grits expects to be litigated as soon as they're implemented. Some of it will stand, some of it won't. ¿Quien sabe? E.g., Austin changed its homeless arrest policy after federal court rulings deemed similar laws in California unconstitutional. Once it's changed back, those precedents will now be litigated here. Hell, if it's extended statewide, litigants can cherry pick which judge they want to bring it before. Right now, debates at the Texas Legislature on everything from bail to homelessness to abortion have become rather unhinged from and not particularly cognizant of nor in any way aligned with federal court rulings governing the same topics. Sign of the times, I guess: Picking needless fights on every front. I can't always tell if it's intentional or they just don't know any better. Little of both, probably.

#2: Ex Post Facto: Know the term

The "defund the police" legislation which will likely pass the Texas House today is a rather blatant example of an "ex post facto law" banned in Art. 1, Sec. 16 of the Texas Constitution and Art. 1, Sections 9 and 10 of the US Constitution. House Parliamentarians don't rule on constitutional issues (with few exceptions, they stick to interpreting the House rules), but IRL, courts do. And the originalist history of the ban on "ex post facto laws" is well established: While more commonly used today in terms of criminal law, it was created so that governments couldn't arbitrarily invalidate budgeting and spending decisions.

#3: The push to disconnect policing from policy makers

An oddity of both the anti-homeless legislation in the Texas Legislature and Prop B approved by Austin voters is the proposal to divorce law enforcement decision making from the policy making bodies that set their budgets and supposedly provide oversight. The state legislation would extend this to prosecutors, limiting prosecutor discretion in Class C cases against the homeless and creating a bizarre situation where prosecutors have more discretion to be lenient to murderers than the poorest of the poor. There are long-term implications for divorcing the armed agents of the state from the control of legitimate democratically-elected policymaking authorities: Examples are numerous, dating at least to the Roman legions' repeated usurpations of the Imperial Senate and various emperors in ancient times. That's more or less how your correspondent views the police-union cabals to whom legislators are kowtowing, and it's hard to see much good coming from disconnecting those folks from the constraints of civil authority.

#4: Why the folks shouting "Back the Blue" don't mind risking cops' lives

The most remarkable thing about this week was that MANY of the same legislators who've been crowing "Back the Blue" for months ignored widespread warnings from law enforcement to pass unlicensed-carry gun legislation. And I mean didn't give a damn: Lip service paid, then vote the other way on a party line, with cops telling them openly, in numbers, "this puts us at risk." Pairing that with the "defund the police" debate on the House floor, one witnessed legislators touting near the top of their lungs that cops deserve absolute deference, then in nearly the next breath insisting the cops were overstating the risks they faced because they were intimidated by some kind of woke, Big Government liberalism from the cities. It was bizarre, and only makes sense if one assumes the love of police is conditional on their political utility. Tbh, I always have, but this made it obvious and nearly inarguable.

#5: A craven betrayal

The word that keeps coming to Grits' mind for the Austin city council restarting cadet classes without demanding a reformed curriculum is "craven." They promised there'd be community participation in the process and then plowed forward without it. And while they added an amendment to the item requiring a report from the City Manager on the progress of curriculum change before the new class starts (June 7), the amendment created no process to halt the class if the curriculum isn't ready. That's because the council majority DOES NOT CARE ABOUT REFORMING THE ACADEMY. It was a promise several of them made when they were running for re-election. But now that they're safely back in their seats, having secured all the support they needed from grassroots reformers in their districts, they don't mind screwing over the Chas Moores and Meme Styles of the world: West Austin brings more votes. Adding insult to injury, most of the key, Austin police-reform leaders skipped the meeting at City Hall to show up at the Legislature and try to fight the "defund" bill, scheduled for the same day on the House floor. No good deed goes unpunished. This was a betrayal and your correspondent won't soon forget it.

Prediction: If "Anti-Defund the Police" bill passes, police budget hikes are a thing of the past

The Legislature gets to write the laws, but even they are not immune from the Law of Unintended Consequences.  I don't think legislators have considered the incentives they're putting in place in HB 1900 punishing cities that "defund" police department (by which in Austin's case they mean delaying cadet classes by one year). Going forward, cities that increase police spending can never again lower it. But they often need to do so. Now, cities will decline to spend more, knowing they won't be allowed to spend less. Bill authors even rejected amendments so that overtime for one-off special events - like a Super Bowl weekend in Houston - would be counted against them the following year. If I'm right about the new incentives facing city councils under this legislation, the result will be to suppress police spending instead of bolster it. I predict that if HB 1900 becomes law, when we look back five years from now the growth rate in police budgets will have flattened, not rallied.

Indeed, the most delicious irony may well come if HB 1900 ends up itself defunding the police! 

Wealthy communities without much police presence have for decades coveted caps on utility rates and property taxes. Some of them also want de-annexation (the recent Austin lakeside de-annexation dispute a case in point). They don't see police much and most of their thinking on this is based more on ideological and partisan predilections than a hard-nosed assessment of self interest.  HB 1900 could well create a "run on the bank" with voters at both ends of the spectrum showing up to defund the police, reallocate hundreds of millions of dollars, and trigger revenue caps and de-annexations that could change fundamentally how cities are constructed and managed in Texas.

Is that the intent of the legislation? No, the intent is to "own the libs." And the libs don't want to be "owned." Other than that, very few under the Pink Dome have thought through the implications of this legislation at all. And it shows.

Thursday, May 06, 2021

Academy relaunch premature until Austin PD eschews hazing culture

The Austin City Council today will consider relaunching its police academy after it was shuttered amidst allegations of cadet hazing and a "culture of violence." 

We've now seen numerous unflattering assessments of the academy, but none more damning than the report from Kroll and Associates. They found the academy uses a "predominantly paramilitary model," has been "reluctant to incorporate a lot of community/civilian input," and remains "distrustful of non-police personnel."

Notably, a majority of both APD brass and the Academy leadership told consultants they don't agree with critiques of paramilitary approaches to policing and don't intend to change: "APD leadership has expressed its belief to Kroll that a paramilitary structure is an essential component of police culture." wrote the consultants. They want to continue group punishments and "stress-based" techniques (this is a cop euphemism for screaming at cadets.)

So APD brass fundamentally disagrees with and is bucking the new direction City Council wants to go, but we're being told "trust us" and asked to move forward, anyway. Honestly, they must think we're suckers: Don't piss on my shoes and tell me it's raining.

City Manager Spencer Cronk has done everything in his power to avoid revamping the academy significantly, last year pressuring the council to move forward without assessing the problem. Then, when they made him perform several "audits" of the academy essentially against his will, they corroborated all the allegations and then some. But in response, Cronk began pushing to relaunch the academy before the problems have been addressed, which leads us to today's vote.

The biggest concern with launching the academy now is that past pedagogical approaches were abusive toward cadets and drove out qualified candidates who chose not to endure these methods. Grits has written about the department's:

strange obsession with perpetuating a culture of hazing and brutality toward cadets, despite evidence this approach drives away women and black people.

Perhaps most telling to this observer, Kroll criticized APD's use of a "Fight Day" at the beginning of the academy, in which martial-arts instructors beat up cadets in a boxing ring before they've received any self defense training. After public criticisms, "Fight Day" was relabeled "Will to Win," but it's still the same program. Exit interviews indicate this practice significantly harms retention rates in particular for women and black men.

The reason given for Fight Day is that if officers are assaulted on the job, they should have experienced being in a fight before to know what to expect. But when Kroll asked why it couldn't be done at the end of the academy, after cadets had been trained in self-defense techniques, "APD personnel were unable to provide a persuasive rationale."

Your correspondent believes it's because they prefer to fight defenseless cadets instead of trained ones. The purpose is hazing, not training. Kroll's questions exposed a culture of bullying and hazing that can't be defended on pedagogical grounds.
When these audits were commissioned, the Mayor and City Council promised there would be a collaborative, community process to develop a new curriculum. But on a Zoom call my wife attended last night, advocates invited to the first meeting of that process - the night before the vote to reopen - were given no curriculum to review and told the list of course topics hadn't yet been finalized. In other words, they're just getting started and have barely checked in with community folks, much less secured their buy in.

Even more concerning, officials on the call confirmed Kroll's assessment that Austin PD brass continue to back hazing techniques at the academy and don't want to give up "stress-based" training practices which have been abandoned by the majority of American law enforcement. (According to the Bureau of Justice Statistics, only 23% of US police academies use a primarily "stress-based" approach like APD.)

Those are some big, unanswered questions! This is why the City Council had originally pushed off a new cadet class until the new fiscal year in October: It's been obvious for many months that the curriculum could not be revamped in time to launch a new class in June. Rather than fulfill their promise of a collaborative process with the community, City Council now wants to renege and launch classes prematurely: The analogy floating around City Hall is that they'll finish building the plane while they're flying it. But that's not how planes work.

More than anything, this is just poor management: Launching a new training regimen before it's been developed or vetted and moving forward without a plan.

Monday, May 03, 2021

The #TexasGeorgeFloydAct: What component bills are still moving in the #txlege homestretch?

Over the weekend, your correspondent put together an update on the status of all the various bills that make up the Texas George Floyd Act for the 65-group coalition promoting them, so let's re-post it here for Grits readers who may be interested. There are four weeks to go in the legislative session, so all these bills are in the make-or-break home stretch.

The Texas George Floyd Act, as distinct from federal legislation by the same name, fundamentally has eight component parts. These have also been broken up into individual, stand-alone legislation, and six of the eight have passed at least one chamber in the Texas Legislature and still have a chance to pass in 2021:

GFA Components:
Ban arrests for traffic offenses
Ban chokeholds
Improve use-of-force standards
Duty to render aid
Duty to intervene
Qualified immunity
Disciplinary matrix
Corroboration in drug cases

Here’s a list of individual bills still moving as of May 2, 2021, along with a summation of what’s not:

HB 830: Banning Class C arrests. This bill was scaled back in committee to ban arrests only for traffic offenses in the Transportation Code. Still, this change would have eliminated roughly 95% of the 64,000 arrests at Texas traffic stops in 2019. The bill passed the Texas House with a bipartisan vote of 113-18, including 57 Democrats and 56 Republicans. It has yet to be referred to committee in the senate.

SB 69: Banning chokeholds and neck restraints by police unless it “is necessary to prevent serious bodily injury to or the death of the officer or another person.” The bill passed the Senate unanimously and is not yet scheduled for a hearing in the House.

HB 833: Improving use of force standards to require an imminent threat. This legislation did not make it out of the Homeland Security and Public Safety Committee and probably can no longer pass this session.

SB 2212: Duty to render aid. This legislation passed out of the senate unanimously, but could be improved to clear up some ambiguity around when the duty is triggered. Officers should render aid unless there’s an “imminent threat.” Alternatively, their duty to render aid to injured members of the public should be the same as when a police officer is injured. It has been referred to the House Homeland Security and Public Safety Committee and there will be a public hearing May 5th.

SB 68: Duty to intervene. This legislation requires law enforcement to intervene when they witness excessive force when a list of four qualifying factors are met. We believe meeting any of these factors justifies intervention and the bill need modest amendment to achieve its goals. The bill is scheduled for a hearing in the House Homeland Security and Public Safety Committee on May 5th.

HB 614: Qualified Immunity: Creating a new cause of action for civil rights violations that bypasses qualified immunity was one of the most prominent demands in the original Texas George Floyd Act. But it has received the most pushback of all and has not moved in either chamber.

HB 829: Creating a disciplinary matrix to ensure fair punishment. In civil service cities, a common excuse for arbitrators overturning police-officer discipline is punishment that differs from other cases. This bill requires those departments to have a disciplinary matrix specifying presumed punishments, and tells arbitrators punishments within those ranges must be presumed reasonable. This will make it easier for chiefs to fire bad cops and make it stick. This bill has yet to be referred to committee in the senate.

HB 834: Corroboration of police testimony in drug cases. This legislation reacts to George Floyd’s conviction based on the testimony of corrupt Houston narcotics officer Gerald Goines in a case with a fabricated informant. This is another bill that passed out of the Texas House with solid bipartisan support, this legislation enjoyed support in the lower chamber from the Sheriffs Association of Texas and the Texas Police Chiefs Association. This bill has yet to be referred to committee in the senate.


For more background, check out the special, two-part podcast from Just Liberty on the Texas George Floyd Act: Here's Part One and Part Two.

UPDATE (5/5): The three senate bills discussed above all passed out of the Homeland Security and Public Safety Committee today (SB 69 was added via a rules suspension) with support from the police unions but tepid backing from police-reform advocates, several of whom testified "on" rather than "for" the legislation. The duty to render aid bill lets officers delay assistance until the scene is fully secured, whatever that means. (For my money, Grits thinks they should be taught to "render aid" with the same alacrity and preconditions as if it were an officer who's wounded.) Meanwhile the duty to intervene applies only to excessive force, not other types of misconduct (e.g., fabricating informants, as allegedly happened in George Floyd's Houston drug case). The original Texas-George-Floyd-Act versions were broader. These are probably still an improvement over current law, barely, but the lowest-possible-impact versions of such improvements. With that said, the same committee earlier passed a governor-and-police-union-backed mandate for training on duties to render aid and intervene that the Attorney General says don't currently exist (the police unions disagree). So putting these duties formally on the books is important. But the versions passed by the senate are pretty weak tea.