Thursday, March 07, 2024

Texas District Attorney, CCA races and the future of Texas criminal-justice reform

The ouster of Kim Ogg in Houston and the re-election of José Garza in Austin -- coupled with the ouster of 3 members of the Government Always Wins faction on the Texas Court of Criminal Appeals -- signal a sea change in criminal-justice reform politics in Texas compared to a decade ago.

Increasingly, Democrats in Texas' largest counties favor reform and in both Harris and Travis made decisive choices for progressive candidates. This is a big switch from just a few cycles ago (e.g., when Kim Ogg herself was puzzlingly touted as a "progressive").

Meanwhile, Ken Paxton's slate of candidates who ousted Sharon Keller, Barbara Hervey and Michelle Slaughter are united in their willingness to overturn 150+ years of constitutional precedent to let the AG usurp authority of local prosecutors. The legal position for which Keller et. al. are being punished has been nontroversial in living memory. Now, insanely, it's considered a right-wing apostasy.

In essence, 3 stalwarts from the court's Government Always Wins faction have been replaced with members of a newly formed Lawlessness Caucus. God help anyone who thought things couldn't get worse!

For 2 decades, through about 2019, criminal-justice reform in Texas was a bipartisan issue -- evidence in favor of the "horseshoe theory" of politics in which left and right bend toward another at the extremes, creating opportunities for alliances between them against the political middle. 

But the latter days of the Trump administration, pandemic-era protests, and ultimately, the J6 uprising broke up that coalition, elevating culture-war issues above pragmatism. "Small government" conservatives increasingly were ousted as a more radical, Big Government Conservatism came to characterize the right in the late Trumpist era.

These trends reinforce my sense that nearly all signficant opportunities in Texas on criminal-justice reform in the near term will come at the local level, with state-level politics nearly impenetrable at the moment given the characters and ideologies at the top of the GOP food chain.

The only issue I see on the horizon that could buck that trend may be transparency. Conservative leaders from several camps appear to be coalescing around the issue as a priority for 2025, even if criminl-justice topics may not be at the top of the to-do list. Still, after the Uvalde inquiry, there's more of an opening on this subject than any other. If we witness anything like bipartisan #cjreform legislation in 2025, I'd bet dollars to donuts that'll be the topic.

Otherwise, to everything there is a season, a time for every purpose unto heaven. Judging from the tea leaves, criminal-justice reformers should focus on local issues for now, and 2025 at the #txlege will be a season for stepping up on defense.

Monday, February 12, 2024

What was that guy's name again? Attacks on a progressive DA by a philistine

An old-school tough-on-crime campaign has been launched in the Travis County Democratic primary by Some Guy I've Never Heard Of named Jeremy Silverbelly, or Silverspoon, or something. To be honest. I never can remember his name. He's just the guy a bunch of Republican donors picked to try to oust José Garza. 

In the interest of full disclosure, I've been paid a small sum to help Garza's campaign with political messaging. But long-time Grits readers will be aware that my interest in supporting him goes beyond the financial, and José's campaign did not see nor approve of this blog post prior to publication. 

Polls mostly show Austinites feel safe and one only need go downtown on any weekend, day or night, to see that's true. The central business district hasn't fully recovered during the week from the effects of work-from-home, but that's because of economics, not fear of crime. Weekend foot traffic tells the story of a bustling town unafraid of its own shadow.

Mr. Silversuckle can only win if voters are hair-on-fire afraid and believe that "Soft on Crime" policies by the District Attorney are enabling the forces they fear. So we get stories like this doozy from KXAN, a local TV station which my wife refers to on Facebook, incidentally, as the "Mouthpiece for the Police State." They put out a deeply misleading attack piece on Garza that intentionally and somewhat blatantly avoided any and all apples-to-apples comparisons to focus exclusively on red herrings.

Their central claim, summed up in the headline, was that, "More felony convictions in Travis County end up in local jail than anywhere else in Texas," with the reporter placing blame for this supposed affront on José Garza's shoulders. Mr. Silversurfer and the presumptive Republican nominee (more on him in a minute) were the main people commenting on the data, placing their sights squarely on the incumbent DA.

The story, however, compares Garza's stats on who gets probation/jail/prison, etc. to other Texas counties, not to his predecessor. The exact same story could have been written about Margaret Moore, and Travis County DAs going back to Ronnie Earle (let's please all just agree to forget the ignominious Lehmberg era, though of course, that was also a legacy of the Ronnie Earle era).

Yes, Harris, Dallas, Bexar, etc., utilize prison much more than Travis County, but it has ever been thus. In 2019, for example, the last year before COVID skewed everyone's numbers, the Travis County DA under Margaret Moore sent 20% of felony defendants to prison; under José Garza it was 16%, according to KXAN. But comparing him to jurisdictions that incarcerate at closer to or above statewide rates, instead of his predecessor, for whom Mr. SillyPutty worked, is simply disingenuous to the point of spreading misinformation.

Nearly the entire difference between the number of people sent to local jail rather than prison under Margaret Moore compared to José Garza can be explained by how Garza's office is handling state-jail-felony drug cases, with almost all of those ending up on probation or serving county jail time compared to Margaret Moore's tenure. But that's about it. Otherwise, the patterns under Margaret were remarkably similar to how José's office runs. But supposedly, according to Mr. Silverhair, those were the halcyon tough-on-crime days and José is some radical.

In reality, as I predicted when he was elected, the scope of change that's possible to enact from that position has been signifant, even important, but modest. José has done what he can, but the position is limited by a myriad other actors in the system and the particular role that prosecutors play in it. He's showing us the limits of what can be accomplished as a "progressive prosecutor" under the existing system. And since José himself is a rather wonky, thoughtful, careful little dude, he's doing what he can within the system, not attempting to break it.

That's why, for example, he dropped charges against police officers for shooting protesters after the city belatedly reported that supervisors distributed faulty munitions, knowing what could happen. The city did not tell the DA this until AFTER the statute of limitations ran out on the supervisors' decisions, and it would have been against his charge to "seek justice" to hold officers accountable in cases for which their supervisors were more culpable. There are certainly factions of Democrats who wanted to see those cases go forward. But José did the right thing by dismissing them.

Yet another example comes from what to me is a particularly sad quarter. Daryl Slusher, a former journalist turned city councilmember turned career-city bureaucrat turned neocon curmudgeon, wrote up another KXAN story from last year trying to smear José, but omtting even the nod to honest reporting their reporter made in that story.

The story is about a sex offender who attacked several women in public settings. He ended up with a sentence of 10 years probation, a requirement to undergo sex-offender treatment, and was placed on the sex-offender registry. Reported KXAN at the time (though omitted in Slusher's version): 

Those who accused Rios do feel a sense of justice, though they wish he had received a tougher sentence than probation.

“It’s difficult to sit in the courtroom and listen to these difficult experiences that they went through,” Jorge Vela, Rios’ attorney, said. “We recognize that, this is not lost on us. This was a deal that was reached with the district attorney’s office after 16 months of negotiation. It took into account my client’s lack of criminal history…There are different purposes in the criminal justice system, and one of those is rehabilitation.”

Vela said Rios is receiving sex-offender treatment. Rios was on house arrest for six months prior to being on probation now, according to Vela.

“There will be no more survivors,” Judge Karen Sage of the 299th Criminal District Court said at the conclusion of Rios’ sentencing. “This is it. It ends here.”
Several things here stand out: First, being placed on the sex-offender registry is a serious punishment that will affect this man for the rest of his life. Characterizing that outcome as letting him "walk free," as Slusher did, is disigenuous in the extreme. Second, I think most people don't fully appreciate what's associated with sex-offender treatment in Texas. Until you've googled "penile plethysmograph," you probably don't fully grok how these ritual humiliations are anything but a slap on the wrist. 

After 16 months of evaluation -- including six months under house arrest -- Judge Karen Sage and the prosecutor on the case concluded this was the best way to hold the offender accountable, ensure he entered treatment, and end his victimizing behaviors. "It ends here" is, in fact, the outcome you want if the goal of punishment is to maximize public safety and change the behavior of offenders. If the goal is something else, Mr. Sillysack and his abettors should say what that is. Because, on its face, the only plausible one I can think of is to scare the public into voting against José.

In reality, Travis County saw a murder spike in 2020 and 2021 that mirrored national trends and caused all manner of overreaction and blaming of progressive politics. The police were never defunded but the murder spike was incessantly blamed by many of these same, disingenous voices on protesters calling for that outcome and the election of progressive prosecutors like José Garza, who took office in January 2021. Murders peaked that year, then declined, but equally interesting is the trend on "crimes against persons." These are the data from the Austin police chief's monthly report:

If we're going to blame Garza when crime increases, let's also give him credit when it goes down. Margaret Moore would have been amazed to see crimes against persons decline more than 10% on her watch, and the TV news folks would have eagerly touted her effectiveness had that occurred (it did not). But the crime decline took place under a self-avowed liberal, so we get weird, manufactured stories pretending the Texas state capitol has devolved into some dystopian hellscape.

I'm hopeful Travis County Democrats will see through these attacks and stick with José Garza, but H.L. Mencken wasn't wrong that no one ever went broke underestimating the intelligence of the American public. That's Mr. Sillysack's only hope of defeating Garza, which is why you're seeing these attacks being planted in the press, and will soon see them (or similar ones) replicated on television. 

Okay, fine, so his name is not Sillysack, or Silverbelly, or any of these other names that keep emerging in my head. It's not my fault I can't remember the name of this cipher of a candidate backed by Republican money who applied for a job on José's leadership team but quit when Garza promoted a more qualified woman over him. 

Mr. Sillyseason's name is difficult to remember, even though he's been endorsed by the GOP DA candidate (who is encouraging Republican voters to cross over to the Democratic primary to vote against Garza). I doubt the Republicans will remember his name, either. OTOH, it doesn't matter what his name is, no one is voting for Mr. Silverstreaker. They're voting for or against José Garza.

Still, there are too many silly/silver puns and wordplay options available; I need a mnemonic to remind me of this guy's name, and I'm betting you do, too. I got it! "Sylestine." Rhymes with "philistine." 

Don't vote for him.

UPDATE: Silverbell's first negative TV ad is now up. He accuses Garza of  lenient plea deals with "more than a thousand" violent criminals, ignoring that in every jurisdiction in every state in the country, virtually all cases, violent felonies or otherwise, result in plea bargains. This couldn't be more disingenous. It's not like he's going to end plea bargaining, after all, or would even want to. It's not even an attack, really, just pure fearmongering: Say some scary words, show a darkened image of the incumbent over tense, scary music, and hope the public jumps in your direction. We'll see soon if Democratic primary voters fall for it.

Monday, January 22, 2024

Icarus in Heels and Fur: A Murder Mystery

My next neighborhood history zine, Icarus in Heels and Fur, comes out February 22nd. Without exaggeration, I think it may be the best thing I've ever written. Pre-order here. This one is essentially a noir murder mystery from the 1940s:

When, after her husband's murder, a petite but ruthless widow builds a thriving nightclub empire in 1940s Austin, her roller coaster of bebop-era decadence, ambition, and danger climaxes in a sordid, unsolved murder, leaving her young lover on trial for his life.

Cover art by Lakeem Wilson

The central character, Vera Barton, more or less put the fatale in femme fatale, with friends, husbands, and employees all at risk seemingly just from proximity. And yet, she was big-hearted, family-oriented, and a savvy young businesswoman. Until she showed up dead in the back of her Caddy.

Vera was the sister-in-law of Essie Mae Barton, the entrepreneur profiled in my first neighborhood zine, "Meet Me At Hudspeth's Corner," published last July. Vera was a much spicier figure, though: basically a gangster version of Essie Mae. Zine launch will be February 22nd, 6:30 p.m., at the Future Front meeting space, the site of Vera's old Barton's Tavern on East 12th Street. District Attorney Jose Garza will co-host the event: Open records requests for historical documents from his office made the research possible, and all sorts of fascinating criminal-justice policy questions arise from the story.

Josie Duffy Rice, a well-known criminal-justice-reform advocate and former editor-in-chief at The Appeal, served as guest editor. That was particularly fun; I've been looking for a project to work with her on for a while.

Please help spread the word. Pre-orders really help w/ the economics of zine publishing, so if you're interested, order now and I'll mail it to you as soon as it's out. 

Tuesday, January 16, 2024

Six observations and a question

My mind has only partially been on anything criminal-justice related, lately, as I finished up the second of my little neighborhood history zines (pre-sale coming soon), and settled back in to Austin routines during the holiday season, after 4.5 months in Mexico. But as 2024 unfolds, here are six observations and a question.

1) I was never a great fan of the "progressive prosecutor" movement, both from a conceptual and a strategic perspective. Conceptually, I believe the prosecutor's role is inherently regressive. Their only power -- to seek state punishment for rule violators -- is a regressive function. IMO, there's no "progressive" way to do that job. Strategically, I believe, based on reams of polling data, that criminal-justice reform doesn't consistently win in majoritarian election contexts. We do better when the debate is over facts, arguments, and experts. Elections related to crime, by contrast, are more typically about unexamined, inchoate voter feelings and scary anecdotes. In certain towns, like Austin, Democratic primaries are liberal enough to pull it off. (We're lucky to have José Garza.) But Texas has 254 counties, nearly all of which have their own DA. And we need look no further than the largest (Harris) to see that Democrats running as "progressive" don't necessarily live up to any meaningful usage of that term.

2) The debacle around the city park in Eagle Pass clearly is an intentional provocation by Greg Abbott, politicizing DPS and the National Guard to obstruct the Border Patrol, ironically. Now that people have died, we'll see litigation surrounding this. I don't blame Biden for high migration levels, but I do blame him for waiting to confront Abbott until it got this far, with armed agents of the federal government in a standoff with the National Guard while migrants drowned in front of them. One appears less noble when you're forced to act and do so only when backed into a corner after pointless, predictable deaths occur. The fecklessness equals that in Uvalde, if not the scope of tragedy. It's amazing how Abbott can be so profoundly in the wrong, and at the same time the Biden Administration can still seem to find no high ground.

3) The AG's open records process has become increasingly politicized, particularly on law enforcement and criminal-justice records. They deny records based on the flimsiest of claims now. It's incredibly frustrating, particularly for someone who started this work in the halcyon pre-Holmes-v-Morales era.

4) Since I'd written on Grits about the Texas prison system's long-defunct prison-baseball league, I should mention finding this article recently referencing the "Satchel Paige" of the Texas prison system, Claud "Scottie" Walker, a negro-league alum who played for Rube Foster's Chicago American Giants and was still hurling for the Clemens Unit Panthers, at age 68, in 1963. Walker said the greatest baseball experiences in his life were pitchers' duels versus John E. Hines, another American Giants alum who pitched for 8 years or so for the Ramsey (Unit) Hard Hitters. I wanna track down more on these two men, so maybe more on these topics, soon.

5) Between Keri Blakinger moving to SoCal, Jolie McCollough getting laid off, and Grits taking most of 2023 away, it's REMARKABLE how much shit TDCJ and TJJD can get away with with nobody paying close attention. Michele Deitch is right, they need their own oversight agency. That's a full time job if you have staff, not something one reporter (or blogger) can do by themselves.

6) It's hard to get too worked up about the Houston mayor's race because, though I'd prefer John Whitmire have not won, Sheila Jackson Lee couldn't have been a lamer, less inspiring choice. At least he's no longer in the senate to block air conditioning in prisons or drug-policy reforms that other red states enacted long ago. To paraphrase Jim Hightower, if God had intended us to vote, She'd have given us candidates.

Finally, here's my question: What do folks think are the main criminal-justice races to watch during the primaries? Obviously, the Harris and Travis DA races are big: An incumbent win in the latter would be a sanguine result, while an incumbent loss in the former would be an earth-rumbling victory. I haven't been watching the blow-by-blow in El Paso, but that DA's race seems like an important one, too. Beyond that, you tell me: Where's the drama this season?

Sunday, January 07, 2024

New Year Check In: Anyone still out there?

Having taken all of 2023 off, my spouse absolving me of all income generation responsibilities for the year, I left this humble blog to lie fallow, checking in only to promote other interests. I still don't know what the future holds for this lowly opuscule, but having had multiple reporters seeking me out since I got back from Mexico (mid-December), all asking what's being missed now that Keri Blakinger and Jolie McCollough are no longer working the Texas justice beat, I thought I'd say to y'all what I've been saying to them:

The vast scope of Operation Lone Star is a game changer. The annual budget layout has become extraordinary, dwarfing Texas' entire community supervision and parole budgets combined. The result has been local/county jails filling up with low-level immigration holds and now, new charges being cooked up each session by nativists in the Texas Legislature. Meanwhile, prison populations are going back up, spurred in part by new statutes criminalizing a growing percentage of the same gun owners being encouraged to open carry.

Belatedly, the Biden Administration has taken some of the more extreme immigration-enforcement-authority issues to court, from lining the Rio Grande with concertina wire to deputizing Texas law enforcement as immigration agents. But if Abbott/Paxton prevail at SCOTUS, the nature of Texas state and local government could change radically, and suddenly, as county by county elected sheriffs and constables begin utilizing this authority in earnest.

A quick check in at TDCJ finds probation revocations to prison remarkably down, while parole violations remained a reliable source of new prison entrants. Still, their numbers were small compared to straight-up new receives.

Texas has the largest prison system of any state (though California has more people, they also have both lower crime and incarceration rates). About a quarter of TDCJ inmates are aged 50 or above, which is why inmate reductions haven't led to cost reductions. We're keeping inmates longer, paroling them less often, and so health care costs increase for the older cohort remaining more rapidly than decarceration reduces costs from covering fewer people.

Looking at the Texas justice system from the 30,000 foot level: The most recent topline data available in the TDCJ Annual Statistical Reports comes from August 30, 2022. At that time, roughly 651,000 people were  under control of the justice system either in prison, jail, on probation, or on parole. Probationers made up the biggest total (54.5%), followed by prison (18.7%), parole (15.8%) and county jails (10.9%).

In that context, consider that a roughly similar number -- northward of 600,000 -- have outstanding warrants for (mostly) trafic violations. Long-time readers of this blog may recall this author spent 12 years working to get the wretched Driver Responsibility surcharge eliminated. When we finally did, more than 1.5 million people received relief. But nearly half of them still couldn't get their drivers' license back because of unpaid traffic tickets -- a process tracked and enforced in Texas via the Omnibase system.

In 2022, Texans were arrested at traffic stops 121,979 times, according to data reported under the Sandra Bland Act; 52,748 of those were for outstanding warrants.

More than 1.2 million people in prison, on probation, on parole, in jail, or with outstanding warrants may seem like a lot. And it is. But it wasn't long ago that north of 1.5 million people had had their drivers' licenses stripped over traffic violations. For a system as vast as Texas, some of the big-volume inflators -- especially probation violators filling prisons and debtors-prison policies filling jails -- have reduced in pressure just bit thanks to specific policy changes. 

In other areas, pressure has ramped up. We've seen the criminalization of doctors playing out on the national media stage, and local governments experimenting with crazy travel restrictions ostensibly criminalizing women driving through their counties to seek abortions in New Mexico or other states. This news to me seems even more bizarre/ominous given that the governor is stringing concertina wire not just along the Rio Grande but on the New Mexico border, as well (running north from El Paso). While meaningless today, with the current US Supreme Court and a potential Donald Trump second term on the horizon, who knows what nutballery may suddenly become legal tomorrow, as evidenced by the draconian "heartbeat bill."

Politically, we're seeing the limits of progressives' ability to influence local criminal-justice politics. The Dallas mayor -- a former Democratic state rep -- came out as a Republican last year, as for all intents and purposes did the new Houston mayor. The Harris County DA is running for reelection under attack from her party's left flank; the Travis County DA is running for reelection under attack by his party's conservative wing. Either her victory or his defeat would be seen as a major progressive loss.

On a perhaps related note, if you're looking to get your ass beat when getting pulled over at a traffic stop, Houston PD is the police force for you: 45% of instances of police use of force at Texas traffic stops -- 2,877 out of 6,363 -- were at Houston PD in 2022 (2023 data comes out in March).

Finally, the number of felonies one can commit with an oyster in Texas has risen from 11 to 16, according to the latest list compiled by the parole board. As a reminder, Texas eschews most types of traditional shellfish regulation, because, freedom, or something, and instead relies on criminal law to punish commercial misbehavior, which is how you get to 16 oyster felonies and perennially fished out oyster beds. That represents about one half of one percent of all felonies, btw, the total number of separate, discrete felonies, according to the parole board, now exceeds 3,200.

Happy new year, gentle readers. Let me know in the comments what issues criminal-justice reporters/advocates should be looking at in 2024. I have been quite intentionally not paying attention.