Wednesday, April 21, 2021

With chances for TCOLE Sunset legislation withering, bill heard to expand agency's authority to kick bad cops out of the profession

Your correspondent is beginning to despair that the 87th Texas Legislature may come and go without meaningful reform a the Texas Commission on Law Enforcement, the state's police-and-jailer-licensing agency.

The TCOLE Sunset bill - which drew attention because of an especially harsh critique by Sunset staff calling it a broken system that's failing to achieve its mission - is now languishing with others in House Calendars and appears likely to be pushed off for two years. Instead the Calendars Committee sent forward HB 1600, which has already passed the House and will be heard this afternoon in the Senate Administration Committee. That bill pushes off the Sunset process for TCOLE, the Commission on Jail Standards, and numerous other agencies.

Legislation in the Senate to expand TCOLE's powers has yet to get a hearing, but this afternoon, better late than never, the House Homeland Security and Public Safety Committee will hear HB 3654 by Rodriguez which would beef up the agency's authority to de-certify peace-officer licenses for misconduct.

Regular readers know that, currently, TCOLE can only de-certify an officer’s license if he or she a) is convicted of a felony or certain, specified misdemeanors, or b) has been dishonorably discharged by not one but two different agencies. HB 3654 broadens the circumstances under which TCOLE can suspend licenses, directing the agency to develop rules governing when officers’ licenses may be revoked when the officer’s continued licensing would constitute a “threat to the public welfare.”

Under the bill, the agency would develop rules articulating when officers’ licenses may be revoked on the following grounds:
1) lack of competence

2) illegal drug use or addiction

3) lack of truthfulness in court proceedings, offense reports (unless recanted within 10 days), or employment applications,

4) making a false entry into court records,

5) evidence tampering

6) cheating on promotions exams

7) insubordination

8) discriminatory conduct

9) pattern of excessive force

10) pattern of abuse of official capacity

11) pattern of sexual harassment/misconduct

12) pattern of inappropriate relationships with persons in custody

13) pattern of misuse of information obtained as a result of employment as a peace officer
That'd be a massive and much-needed expansion of TCOLE's authority and would require a significant expansion of staff to fulfill those duties. It's also a list laden with negotiation-fodder; the bill could be scaled back considerably and still be quite a significant improvement.

The bill attempts to mitigate that to some extent by increasing the fee peace officers and jailers pay when their licenses are commissioned. But regular readers know these are among the only licensees in the state who do not pay regular licensing fees to cover the administrative bureaucracy of the agency that regulates them, the way, doctors, lawyers, hairdressers, or plumbers do. Make me Philosopher King and I'd make police officers and jailers pay annual or periodic fees to cover the costs of their licensing regulation. That's how it works for every other class of licensed workers and doing so would eliminate the "fiscal note."

This bill is starting pretty late in the process to make it all the way through in 2021, but it's an opening salvo in a discussion about how TCOLE's authority needs to be expanded. And some of these ideas could see their way into amendments tacked onto other legislation. KXAN-TV has lately been covering related topics, see here and here.

Monday, April 19, 2021

Deeply rooted problems at Austin's police academy justified one-year recruitment delay

So much misinformation has been cast about so frequently regarding the City of Austin's budget and supposedly "defunding the police" that many political actors involved appear to have come to believe their own bullshit. Legislation purporting to punish cities that reduce police budgets, including HB 1900 by Goldman, are sitting in Calendars and could pop out at any time.

In the Texas Senate, Democrats cratered; all but 2 voted in favor of "anti-defund" legislation. So the idea has so far sailed through the political process without being thoroughly debated or vetted. 

Here's what's missing from discussions at the capitol:

First, the full extent of Austin's budget cut was 4.6%, almost all of which stemmed from delaying the cadet classes for a year. (As a point of comparison, when Texas faced budget shortfalls in 2017, the Legislature cut the Department of Public Safety budget by 4%.)

The reason for delaying cadet classes in Austin wasn't to "defund" the department, despite calls in the street to do so. Instead, it was the logical next step in an ongoing accountability effort. The prior December, long before last summer's protests, the City Council had ordered the city manager and police department to conduct an audit to vet problems at the police academy which had been raised by former cadets over several years. The audit was due last June, but APD and the city manager showed up at the appointed time to say, "We haven't done the work you requested, but we want to restart cadet classes, anyway."

By this time, the George-Floyd protests were in full swing and city council members stood their ground, telling the city manager to perform the audit as directed and revamp the cadet-class curriculum before proceeding with another one.

If City Manager Spencer Cronk had performed the audit when he was supposed to, Austin would have only missed one academy class

Instead, he didn't start until the City Council gave him a hard "no" on new cadet classes, and the results didn't come out until earlier this year. The "audit" occurred in multiple parts which came out in January and February. All of them showed major problems with the academy that required complete reworking.

A review of videos used at the academy found consistent, systemic bias:

People of color seldom benefited from crisis intervention or deescalation strategies from officers in videos. Instead, a strong emphasis on gaining compliance and control over all else from communities of color often led to rapid escalation with often violent and even deadly results for minor infractions. In contrast, white community members were most often extended grace and understanding. Opportunities for story-telling and building empathy was almost exclusively given to white men.

A review by the Equity Office found a culture of violence and hazing within the department.

And outside policing experts at Kroll and Associates also identified a 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.

They also found department leaders were openly resistant to changing hazing routines at the academy, declaring they were pivotal to its team building mission. 

These problems hadn't even been identified until a few weeks ago. But the police union, the Greater Austin Crime Commission, and their allies have insisted Austin PD should plow forward with a new cadet class before APD has demonstrated that they have fixed what's wrong with it first. They'd prefer to launch a new cadet class in June and repair the plane while it's flying, as it were. By contrast, local police-reform advocates prefer to take a few months to develop a new curriculum that comports with community standards and launch a new academy in the new fiscal year, which begins in October.

So the difference between the cops and reform advocates in Austin amounts to "Do we start a cadet class in six weeks or six months from now." And on that small difference, politicians have built a huge inverted pyramid of bullshit.

Neither the Governor nor Austin's legislative critics acknowledge this context for "cuts" to the budget. They want to pretend the budget cut was an attack on law enforcement when really it was part of an ongoing process that had begun long before the protests to reform what we now know are deeply rooted problems at this particular police academy. Whether state officials ever acknowledge it in public debates, and whether or not Austin is punished for it, it really did have to happen.

The other big "cuts" to Austin PD involved shifting functions like the 911 call center and the forensic lab out of the department, to better serve all emergency response and improve criminal investigation. The city could end up spending more money on those functions once they're more professionally operated. Quality doesn't come cheap. But bills to punish Austin don't "count" more money spent on scientists or emergency med techs or 911 dispatchers as public safety money. Which is why you can be sure that none of this is really about public safety. 

The police unions have thrown in with Republicans, and Republicans have long seen Texas' Democratically controlled cities as the electoral problem they must solve to stay in power. As a consequence, police are helping Republicans attack their Democratic opponents. In Austin it's the budget. In Houston it's the new wave of Democratic judges and the hot topic is bail. Everywhere the core argument is the same: Democrats can't run cities, so the Republican state leadership must step in. If Democrats want to retain control over their cities, they are going to find some backbone and stand up for what's true, including real public safety and the authority of local officials to run their own cities.

Texas Republicans may no longer believe in local control, but Texans still do.

Sheriff's deputy resigned amidst child molestation charges, murdered three people this weekend, but still technically eligible to work in Texas law enforcement

In many other states, former Travis County Sheriff's Deputy Stephen Broderick would have lost his peace officer's license last year. He was allowed to resign in lieu of being fired amidst child molestation allegations, but like so many others before him, he remained eligible under Texas law to be hired at one of Texas' 2,500+ other law enforcement agencies.

He probably would have, too, if he hadn't allegedly murdered three people in Austin this weekend then gone on the lam. (UPDATE: He has since been arrested.)

His story shows why the Sunset Advisory Commission's report on the Texas Commission on Law Enforcement declared the agency's licensing process "broken." Sunset described a "fragmented, outdated system with poor accountability, lack of statewide standards, and inadequate training." The agency simply has no statutory authority to kick bad cops out of the profession.

Over a five year period, Sunset staff reported, more than 2,800 officers were dishonorably discharged from their agencies; TCOLE decertified only nine of them. More than a quarter of these officers get re-hired.

The reason: current law requires they be dishonorably discharged TWICE before losing their license. There's no good reason why once isn't enough. There's already an appeals process in place if extenuating circumstances exist.

Similarly, TCOLE may only decertify officers for alleged crimes if they're convicted of a felony or a misdemeanor that relates to their job (a nebulous, ill-defined distinction). So sustained allegations of child abuse that don't result in prosecution aren't enough to decertify someone in Texas, even if they're fired or resign over it. Broderick's case makes that clear. Even now that he's murdered three people. TCOLE doesn't have authority to remove his license unless he's convicted.

The TCOLE Sunset legislation so far addresses none of these issues, Grits reported recently. But HB 8 (Pacheco), which is scheduled for a House floor vote on Wednesday, represents the police union's "solution" to the problem.

This bill 1) requires disclosure of police personnel files of fired officers to any new agency that hires them, and 2) makes those records closed to the public.

The assumption appears to be that agencies won't hire officers if they know about misconduct in their past, but both history and data tell us that's not universally true. We've seen plenty of anecdotal examples of bad cops getting hired somewhere else. And as mentioned, Sunset staff reported that more than one in four dishonorably discharged officers get rehired every year. 

Moreover, the closed records provisions in HB 8 are over-broad. Personnel files presently are only confidential at the 73-or-so agencies covered under Ch. 143 of the Local Government Code. At all other 2,500+ agencies, including every county sheriff in the state - personnel files are subject to the Texas Public Information Act. HB 8 should be amended to ensure only records from Ch. 143 agencies are closed; this ostensible reform bill shouldn't become a vehicle to diminish transparency around police misconduct.

HB 8 is a baby step, at best, and may be a step backward if it diminishes transparency around police misconduct. Texas needs to do much more to make police licensing in this state anything more than a fig leaf for police misconduct and ultimately, a bad joke.

Saturday, April 17, 2021

#txlege bill eliminating Class-C arrests for traffic offenses moving forward with bipartisan support

The death of Daunte Wright traffic enforcement by police back in the spotlight, raising the profile of the issue just as HB 830 (Thompson) passed out of committee at the Texas Legislature this week. Next week will be dominated by debate over the budget, but HB 830 could hit the House floor as early as the week after.

The committee substitute to the bill would ban arrests for Class C traffic violations in Texas, but not other Class Cs. Looking at recent cases, the bill would affect Dillon Puente in Keller but not Rodney Reese in Plano. There are a variety of reasons for that and I'd prefer all Class C arrests were banned. But in 2020, traffic violations accounted for 95% of arrests for Class Cs at traffic stops, so the bill as it stands would have a large impact.

These low level arrests take up a huge proportion of law enforcement's time and resources. In Texas in 2019, police arrested some ~45,000 people for marijuana, plus another ~137,000 at traffic stops alone for Class C misdemeanors (64K), and warrants for debt (73K). Those low-level categories made up more than a quarter of all arrests statewide that year (total arrests was 689,109, says DPS).

Every such arrest risks the bad outcomes witnessed in cases ranging from Daunte Wright to Philando Castile to Sandra Bland. Eliminating tens of thousands such arrests could definitely save lives.

We're kind of headed in that direction, anyway. Notably, Texas has radically reduced traffic enforcement over the last decade with no notable change in road-death rates. So we're already trending in the direction of fewer traffic stops. Eliminating Class C traffic arrests further minimizes the risk of harm at traffic stops, making it more likely driver and officer alike will end encounters safely and go on their way.

Make me Philosopher King and I'd probably take traffic enforcement completely out of law enforcement's hands except for a tiny handful of exceptional circumstances. The reason cops do it in the first place is the supposed risks, but those are far overstated, as Jordan Blair Woods, who analyzed detailed data of police violence at traffic stops in Florida, articulated in this interview:

the danger narrative about traffic stops that is commonly perpetuated in courts and law enforcement circles isn’t supported by empirical research. What I found is that overall, violence against officers during traffic stops was fairly infrequent and the incidents that did happen were generally low-risk and didn’t involve weapons.

Using my most conservative estimates, I found that the rate for felonious killing of an officer during routine traffic stops was 1 in every 6.5 million stops. The rate for an assault resulting in serious injury to an officer was 1 in every 361,111 stops. The rate for assault against an officer, whether it results in injury or not, was 1 in every 6,959 stops. The least conservative estimates suggest that the rates are much less: 1 in every 27.6 million stops for a killing, 1 in every 1.53 million stops involving an assault that results in serious injury to an officer, and 1 in every 29,550 stops for an assault against an officer, whether it resulted in officer injury or not.

The bottom line is the idea that routine traffic stops are these exceptionally dangerous events for police didn’t pan out with my results.

Moreover, many of the risks at traffic stops arise from the nature of American policing and its routine overreaction to the mildest resistance and focus on arrests for warrants. If unarmed civilian bureaucrats performed that role, maybe it could be done with less risk to everyone.

Grits recognizes, though, that's not happening anytime soon. As my father likes to say, "If wishes were horses, beggars would ride."

In the meantime, limiting arrests limits the number of times police forcibly detain someone and should reduce resulting police violence. If more than a quarter of 2019 arrests in Texas were for marijuana, Class C misdemeanors, and outstanding debt (warrants), those arrests conceivably could be eliminated. And many "small government" conservatives would be on board with the idea, just as HB 830 has both Republican and Democratic authors.

Finally, readers may recall that eliminating Class C arrests was one of the areas of agreement between the Democratic and Republican Party platforms in Texas on criminal-justice reform, a recollection that gives me the opportunity to bring back this short video with one of my favorite jingles: 

Tuesday, April 13, 2021

Austin PD won't disavow 'paramilitary' culture in its academy; Dallas cops caught using unauthorized facial recognition tech; police reform in Houston hits a dead end; and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused elsewhere.

Consultant: Austin PD still embraces 'paramilitary' culture

Austin's police academy retains a "predominantly paramilitary model," consultants Kroll and Associates found, and their training staff lacks diversity. "For the most part, Kroll has found APD reluctant to incorporate a lot of community/civilian input and distrustful of non-police personnel." Changes so far sound largely cosmetic: "there is less one-on-one, in your face stress actions (yelling and screaming), which are now more group focused." Yelling at a group doesn't seem much more pedagogically effective than yelling at an individual, though perhaps it's at least a tad less abusive. "The Academy has modified some past abusive practices, such as 'Fight Day' and Stress Reaction Testing (SRT), in an attempt to reduce cadet injuries, lower the rate of attrition (which disproportionately impacted females and cadets of color), and create an environment more conducive to success and graduation." Fundamentally, though, APD leadership told the 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."

Police reform in Houston appears to hit dead end

This quote accurately sums up the state of police reform in Houston under Mayor Sylvester Turner:

“We haven’t made any meaningful progress since the George Floyd protests, just forget about it,” said Alan M. de León, an organizer with MOVE Texas. “Whether the oversight board, union contract negotiation, or crisis intervention, on no front are we making meaningful progress, and that’s completely disappointing.”

Some are hoping things will change under the new chief:

Those pushing for police reform hope new Police Chief Troy Finner, a native Houstonian who took over Monday, will push reform. Since being appointed in March, Finner has promised to meet with and listen to reformers.

“You could tell he wanted changes to happen,” said Harrison Guy, a police reform task force member who met with Finner twice last year. “I feel like (former chief Art Acevedo) led with a lot of ego, so I felt like he got in the way of a lot of change.”

I don't know Finner but share the hope that he's more reform minded than his predecessor, which is a low bar. For more background, see Grits' extensive coverage of the Houston Mayor's task force from last year. Not by much, but Dallas has done a little better.

SA ballot initiative vs police union contract w/in striking distance

Polling on the May 1st ballot initiative in San Antonio taking aim at eliminating the police union's meet and confer contract show the race to be wide open: 34% in favor, 39% opposed, and more than a quarter undecided, leaving plenty of room for the outcome to swing either way.

Chalk one up for Renee Hall

I've gotta say, the outcome of the examining trial against the Dallas cop accused of hiring a hit man seems to vindicate former Chief Renee Hall. She'd made the decision there wasn't enough evidence to accuse the officer, and though it made big headlines when her successor had him arrested, now a court has agreed. That said, there may be administrative violations that could be pursued even if they can't show he violated criminal statutes. But after all the eye-popping headlines, it looks like criminal charges won't be forthcoming.

A friggin' Ponzi scheme?!

Dallas police announced they suspended an officer for operating a "Ponzi scheme" targeting other officers in which 8-10 others may also have been involved, but so far have released no additional information.

Affidavit: Pointless police pursuit resulted in bystander death

A high-speed chase in Fort Worth that killed an innocent bystander in 2018 “should either never have been initiated or it should have been immediately terminated,” wrote a former Richland Hills police officer in an affidavit unsealed by a Tarrant County district court. Wrote the officer, the suspect being pursued “was not suspected of any specific crime and there were no outstanding warrants concerning him.” The victim's son, a River Oaks police officer, sued the department and, though the suit was recently dismissed, the litigation revealed details indicating the department's policy was inadequate, not followed, and/or both.

False accusation, confession, centered on assault that never occurred

In Bexar County, the Conviction Integrity Unit unearthed a false confession case in which a man pled guilty to an assault that in fact never happened. Your correspondent learned a lot about false confessions when I was policy director at the Innocence Project of Texas. Some of the most complicated, self-incriminating examples arise from family disputes like the one that sparked this story, in which a gay immigrant was accused of assaulting his partner, whom he later married. Witnesses confirmed the alleged assault never occurred. I'm glad this was finally sorted out but it highlights the incalculable damage that can be done by a false confession and the fact that police are largely ill-suited for the role of intervening in domestic disputes beyond preventing immediate violence.

Dallas cops used facial recognition software w/o authorization

Dallas police officers used unauthorized facial recognition software last year to try to track protesters, reported Gizmodo.

The spokesperson, Senior Cpl. Melinda Gutierrez, said the department first learned of the matter after being contacted by investigative reporters at BuzzFeed News. Use of the face recognition app, known as Clearview AI, was not approved, she said, “for use by any member of the department.”

Department leaders have since ordered the software deleted from all city-issued devices.

Officers are not entirely banned from possessing the software, however. No order has been given to delete copies of the app installed on personal phones. “They were only instructed not to use the app as a part of their job functions,” Gutierrez said.
More background from Buzzfeed.

Politicians far behind public opinion in Texas on pot

It's remarkable the extent to which Texas legislators' are SO far behind public sentiment on marijuana. Most Texans support full-blown legalization of recreational pot, like New Mexico just enacted, according to fairly consistent polling results. But all the marijuana bills at the Texas Legislature that are moving are relatively small potatoes. Do I want to see penalties lowered for small amounts? Sure. As my father likes to say, it's better than a sharp stick in they eye. But 15 states have fully legalized recreational weed and, if legislators in Texas cared what their voters think on the matter, the Lone Star State would follow suit.

Out-of-state odds and ends

Finally, here are few items that caught my attention:

Monday, April 12, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, April 11, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, April 10, 2021

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

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

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

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

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

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

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

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

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

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

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

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

These are not isolated sentiments:

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

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

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

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

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

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


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

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

You're welcome, Gov. McConaughey.

Thursday, April 08, 2021

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

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

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

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

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

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

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

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

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

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

Tuesday, April 06, 2021

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

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


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

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

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

Find a transcript below the jump. Enjoy!

Saturday, April 03, 2021

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, March 31, 2021

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, March 30, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, March 23, 2021

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

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

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

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


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

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

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

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

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

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

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

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

"Liberal."

Sunday, March 21, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, March 20, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, March 15, 2021

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

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

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

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

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

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

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

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

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

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