Bail reform saves lives, "The Ogg Blog," pay-per-surveillance, and other stories

Here are a few odds and ends that merit Grits readers' attention:

Kim Ogg oppo blog launched
The Justice Collaborative has launched The Ogg Blog, providing background on various criticisms vs. embattled Harris County DA Kim Ogg as she faces a bevy of opponents in the coming March primary. Grits is grateful; I'd intended to compile a long, greatest-hits post for Ogg as a bookend to this one about Travis County DA Margaret Moore, so they've saved me the trouble.

Bexar County Jail deaths argue for bail reform
At the Texas Observer, Michael Barajas examines recent deaths in the Bexar County Jail, a topic which  led the Express-News recently to call for an audit. At root, the problems implicate a broken bail system that incarcerates low-risk defendants because they don't have money: "Don’t lose sight of the broad strokes," admonished the Express-News. "Three defendants in their 60s. All charged with criminal trespass. All given nominal cash bonds that kept them incarcerated pretrial. All dead in our jail. All of this in the span of about a year." But local judges, including one who ran a bail-bond company before ascending to the bench, have consistently opposed any move toward reforming bail processes.

To be clear, despite plaintive cries that bail reform will harm public safety, the real reason bail-bond companies oppose reform is all about preserving their anachronistic business model. Continuing to subsidize this industry in the 21st century is akin to subsidizing buggy whip manufacturers in the 20th: Their time has passed.

Fact checking the Governor on homeless policies
PolitiFact fact-checked Governor Greg Abbott on his claims about Austin's homeless. Guess how he fared?

Levin on reducing Big-D murder rate
Marc Levin from Right on Crime appeared on the Point of View podcast to discuss Dallas' plan to reduce its murder rate.

Pay-to-surveil
Google wants to begin charging law enforcement for requests for location information and other user data. The big telecoms already do so.

The state of 'progressive prosecutors' in Texas

The article in The Atlantic titled "Texas prosecutor fights for reform" has a certain "Man Bites Dog" quality, which I suppose makes local news from Texas interesting enough for East and West coast media and muckety mucks to take notice. Not that John Creuzot's work in Dallas doesn't deserve attention. In Grits' view, he is the most confident, competent, and sure-footed of Texas' new crop of Democratic DAs. But at this point, the term "progressive district attorney" requires so many caveats that it should probably be discarded, at least in red states, until a few key benchmarks have been established and met.

When Kim Ogg of Houston, Mark Gonzalez in Corpus Christi, and Margaret Moore in Austin were elected DAs of their respective counties in 2016, there was a clutch of mostly national advocates and journalists, coupled with a few local electoral partisans, who pronounced them part of a new wave of "progressive prosecutors." Grits argued at the time that there was no such thing (and still largely thinks that's true).

Larry Krasner's election in Philadelphia changed things. His office produced a memo detailing new policies aimed at reducing incarceration rates that was much more daring and aggressively decarceral than any previous US prosecutor had ever suggested. (For a contemporary podcast discussion of Krasner's memo in context of Texas candidates, see here.) Soon, prosecutors in other states began running mimicking parts of Krasner's approach as well as expanding or exploring other decarceral programs.

In Texas, though, the decarceral efforts of our Democratic DAs have been much more modest.

Harris and Travis Counties have created special courts for state-jail felonies that have helped chip away at state-jail incarceration rates. Joe Gonzalez in San Antonio took a won't-prosecute stance on low-level pot possession (Ogg created a pretrial diversion program for pot.) And both Mark Gonzalez and Margaret Moore found themselves in the happy position to replace such embarrassingly bad prosecutors, they could look like an improvement just by avoiding overt misconduct and not drooling on themselves in public.

On bail reform, in particular, for the most part these prosecutors' positions are far from "progressive." And even if they are, as with Creuzot, judges, local criminal-defense attorneys, and other special interests have proven effective at throwing a monkey wrench into potential solutions.

Ogg in particular has chosen to pick fights with county commissioners, newly elected Democratic judges, reformers, journalists, and academics over every perceived slight, leaving herself ever-more frustrated and isolated. Most prominently, she attacked the pending bail-reform settlement and demanded the county radically increase her staff size without acknowledging how that would a) create disadvantages for underfunded indigent defense or b) run counter to decarceration goals. (Recently a group of scholars came out to criticize the methodology of a study her office promoted to justify the request for more staff.)

Creuzot was the first Texas DA to more comprehensively articulate his own decarceral agenda, sort of a Larry-Krasner-Lite, but whose pronouncements are peppered with "y'alls." His policies were more modest than, say, newly elected prosecutors in Philly, St. Louis, or Boston. Even so, there's no doubt Creuzot's positions were more concrete and his thinking about decarceration is the most-well-developed of any Lone-Star prosecutor. Indeed, his general election vs. a Republican incumbent essentially centered around which one of them would be more reform-minded.

By contrast, in Houston, some of the same reform voices who prematurely hailed Kim Ogg as a progressive in 2016 are calling for her replacement by Audia Jones. Margaret Moore last year asked local reformers to endorse her push to merge the District and County Attorney offices under her control, but refused to enact any of the reforms local advocates wanted in return. As a result, the merger didn't happen and she now faces a serious reform challenger in Jose Garza.

Going forward, if any of these insurgents win in the coming Democratic primaries, then the terrain will have shifted and "progressive" will no longer effectively serve as a synonym for "Democrat" in Texas when it comes to prosecutor elections, as seems to have been the case so far.

Initial thoughts on the Amber Guyger verdict

Former Dallas police officer Amber Guyger's murder conviction and ten year prison sentence raises so many conflicted emotions! Here are Grits' initial thoughts on the trial and the outcome:

Abuse of power by police union prez should be punished, forbidden going forward
Maybe what stood out to me most was the role of Dallas police union president Mike Mata. He showed up at the scene of the shooting, sequestered Guyger from police investigators, and gave orders to cops on the scene to turn off cameras and mics in the police car where she was sitting - which they followed! Mata is a police sergeant, not an attorney, and had no legal authority to keep Guyger from being questioned or recorded. His actions corrupted the process from the beginning. Outside of a defendant's attorney, no other third party would be allowed to do this, but Mata misused his sergeant's rank to protect her. He should be disciplined or fired for this abuse of authority, and the department should establish rules to prevent it from happening again.

Racist social media posts by cops not harmless
Guyger's racist social media postings, and those of her colleagues, also deserve more scrutiny. As the Plain View Project revealed earlier this year, this is not a one-off but part of a broader departmental problem that has been tolerated by management and encouraged by a flat-out racist subculture within the agency. Now that an officer engaging in this behavior has been convicted of murdering a black man, we see the issue of racist "personal" opinions of Dallas PD officers quite clearly has policy implications. IMO, this episode shows officers holding such views are a clear and present public-safety threat.

Deescalation training clearly insufficient; Guyger said she never considered it
Just months before the shooting, Guyger had received 8 hours of deescalation training which was mandated in 2017 by the Sandra Bland Act. But Guyger testified using those deescalation tactics never entered her mind. So was her training insufficient? Should it be expanded? Required more frequently? Do departmental policies reflect that training and require officers to use deescalation where possible? Are there professional consequences for failing to deescalate when possible, and if not, why not? DPD and the public should be concerned that its training was so ineffective that a uniformed police officer never even considered it before firing her service weapon at an unarmed man.

So we don't prosecute evidence tampering anymore?
Guyger and her married partner with whom she was having an affair both deleted texts from the night of the murder on their phones, although investigators later recovered them. Why wasn't her partner charged with evidence tampering, as any civilian would have been if they tried to destroy evidence in a murder case? Should a cop who tried to destroy evidence in a murder case even still be on the force?

Flaws in Castle-Doctrine law exposed in case
Some folks on social media blamed the judge for allowing Guyger to use the Castle Doctrine defense. But the judge isn't to blame; Texas legislators are. Most people think the Castle Doctrine means people defending their own home, as in "a man's home is his castle." But Guyger was a home invader entering another person's apartment! So there's a perception among those who haven't dug into the details of the law that there is now some sort of Castle-Doctrine bubble that white cops get to carry around with them and apply wherever they are. That impression is understandable. It sure looks that way from the outside! But in reality, the judge had no choice but to give a jury instruction on the Castle Doctrine. Texas' law says the shooter must only have a "belief" that they're protecting their home, they are not required to factually be protecting their home. So Guyger triggered the defense when she claimed she thought she was entering her own apartment. That's WAY too broad and should be scaled back when the Legislature meets next.

The verdict, and the hug(s)
Grits was not among those who believed a super-long sentence was required in this case, and I was glad Botham Jean's brother forgave Guyger from the stand and even stepped down to hug her. He's modeling excellent, Christian behavior and society would be better off if more victim families embraced forgiveness as a primary value. However, I feel differently about the judge hugging Guyger afterward. The judge didn't initiate it, but the photo of the embrace gave an appearance of special treatment in a situation that already was rife with them. It appears from a distance - obviously I wasn't there for the blow-by-blow - that the judge, an African-American woman, did a good job. But that photo coupled with a below-average murder sentence will be seen to contradict that.

***

There are many more issues coming out of this tragedy that will be debated going forward, these are just first-cut considerations in the immediate aftermath. While civil verdicts are more common in Dallas, a criminal conviction of a police officer is a rare and stunning result. Out of more than 50 officer-involved shootings in Dallas this year, only one officer has been indicted, and it's even more rare for indicted officers to be convicted and sent to prison. So by any measure, the verdict is big news. But Guyger's conviction won't in and of itself change a departmental culture that protects bad cops, tolerates their racist views and online postings, and fails to punish evidence tampering by its officers. That will require local officials to step up. And the public will be watching.

'Progressive prosecutors' not all so progressive on bail reform

At the Texas Tribune festival this weekend, Josie Duffy-Rice, president of The Appeal, moderated a panel with three Democratic Texas District Attorneys - John Creuzot of Dallas, Margaret Moore of Travis County, and Mark Gonzalez of Nueces County.

(L-R) Josie Duffy, John Creuzot,
Mark Gonzalez, and Margaret Moore

An audience member asked the panelists whether they favored providing defense attorneys to defendants at "magistration," where judges set bail amounts defendants must pay to get out of jail pending trial.

Gonzalez failed to answer the question directly, conflating magistration with plea bargaining and insisting that his office was more fair than his predecessor.

Moore also talked around the issue, but in essence said she didn't think providing counsel at bail hearings was necessary. Prosecutors don't even attend those hearings in Travis County, she declared, an assertion which Grits found dubious. After all, the county indigent defense plan anticipates prosecutors may "fil[e] an application" with the court at magistration, while indigent defendants may apply for an attorney at that point, but don't get one until later. Moore suggested that a post hoc bail-review hearing was sufficient to protect defendants' liberty interests.

Creuzot was the only DA who said, definitively, "Yes," defense attorneys should be provided at magistration. He blamed Dallas judges who appealed the federal injunction for blocking the move, although at least one judge supports the idea. (The county commissioners court, which would have to come up with money to pay for additional defense counsel, surely also is a barrier to implementing that idea.)

Grits found this discussion dissatisfying, given recent developments in Texas bail-reform litigation.

In Galveston, in particular, a recent federal-court injunction explicitly required the county to provide attorneys at magistration. This was not mentioned.

Harris County eliminated magistration in 85 percent of misdemeanor cases to avoid having to make individualized determinations, and launched a pilot program to provide a public defender at bail hearings for the other 15 percent.

In Dallas, a federal judge said magistrates couldn't rely on a pre-set bail schedule without considering individual circumstances. Articulating those, of course, is a defense attorney's job. The injunction has been appealed, but the judge's order would require these hearings to occur within 48 hours of arrest.

So, if we're reading tea leaves here, in all three jurisdictions, federal judges have said that non-individualized bail hearings are unacceptable and that release decisions must be made promptly.

In that light, claims that it's sufficient to review non-individualized bail decisions later, as DA Moore declared, strike me as optimistic, at best. All the federal court rulings in Texas so far have required more.

Certainly it's insufficient to address the issue during plea bargaining, as Mark Gonzalez maintained! Part of the problem with excessive pretrial detention is that it makes defendants more likely to accept unfavorable plea bargains.

The US constitution forbids "excessive bail," not bail per se, so it's unlikely federal courts will ever "abolish money bail," as most #cjreform advocates would prefer. But it also seems clear to this observer that federal courts will eventually require individualized bail determinations, likely at magistration.

We've now seen three different options emerge from federal courts for how to do that: Provide counsel at magistration, as in Galveston; hold individualized hearings within 48 hours of arrest, as in Dallas; or simply eliminate bail determination hearings for most nonviolent cases, and provide lawyers at magistration for the remaining subset, as Harris County is doing.

No one can tell which of these options will be required writ large across Texas until the 5th Circuit rules in one of these cases. Now that the Harris County suit has settled, it seems likely that Dallas will be the first to reach that stage. Their preliminary injunction came out more than a year ago, while Galveston's only emerged last month.

Regardless, Creuzot was the only DA on the so-called "progressive prosecutor" panel who gave what Grits would consider a "progressive" answer on bail reform. Letting folks sit around in jail because they're too poor to pay just isn't good enough, anymore.

Media, unions hoped Dallas police staffing study would recommend more cops; instead it said 'manage your cops better'

The Dallas Morning News reported on a new staffing study for the Dallas Police Department prepared by KPMG. But the story is so focused on promoting the paper's ongoing agenda of encouraging the city to hire more officers, the coverage missed the forest while searching for a missing tree: they wanted the report to say how many additional officers the agency should hire, and KPMG failed to take the bait.

KPMG did identify DPD needs that could require more staff, but they suggested that staffing re-alignments and adjustment of strategies, tactics, and priorities could free up that capacity in lieu of the city hiring more officers. That thinking didn't make it into the Morning News story, even though it's the central reasoning behind the recommendations. Instead, the reporters scoured the 400-page report for hints at how many officers should be hired then called around to ask people if they thought the consultants should have given a hard number.

Indeed, the local police union just pretended the consultants had recommended hiring more officers and repeated the demand that a hard number be recommended for new hires:

Mike Mata, president of the Dallas Police Association, said he still hopes to hear an estimated number from top brass early next week. 

“What’s our goal? Even if it’s a broad goal,” Mata said. “I don’t think it’s healthy to just say we need more. There has to be a target or at least a range.”

In fact, KPMG recommended hiring a number of civilian positions as a higher priority than increasing patrol staff. Those were:

• Efficiency specialists
• Data science and optimization experts
• Technologists
• Change management specialists
• Project managers

They also recommended hiring civilian "investigations technicians," "crime analysts," "community support officers," and admin staff to support the Investigations division instead of just adding more cops.

KPMG argued that DPD brass should spend time re-organizing and re-prioritizing patrol functions to free up officer capacity, then evaluate how many officers should be hired when that process is finished. Right now, they said, the agency is completely reactive, with little in the way of a strategic planning process:

Based on our observations and interviews conducted over six months, it is evident that the DPD lacks a clear strategy and is more reactive to the issues of the day, rather than working towards a common long-term goal. While DPD has strategic priorities these have not been translated into a strategic plan that can drive action. This is particularly evident at the Patrol officer level, where staff appear unclear of the overall strategic direction and mission for the department as they receive conflicting direction from the department as to what the priority is, either response times or crime fighting.  

This is also apparent with respect to the Investigations Bureau, which lacks a clear crime strategy, which should be linked to the overall Department strategy that would allow for a flow down staffing model from priorities to execution. Staffing decisions are therefore made periodically and reactively. The DPD responds to both attrition of staff and the daily operational disruptions. The ideal allocation model would be based on a strategic crime reduction model, whereby staff is aligned by priority and actual workload and utilize data and intelligence to inform decision-making. The DPD has considerable work to do in order to achieve this ideal state in the Investigations Bureau. 

When staffing decisions are being made in a haphazard and reactive fashion, simply hiring more officers isn't a solution. The consultants recognized that, even if the Morning News and the police union can't quite accept it. DPD has some work to do before they could effectively use those staff, and the most important, immediate hiring needed involves civilian functions, not patrol officers.

Another interesting critique involved the agency's use of Compstat crime mapping software, which the consultants said contributes to the reactive nature of Dallas policing:

Recent research evidence suggests that Compstat is more likely to generate reactive crime control responses rather than more creative problem-solving responses designed to address the conditions that cause crime problems to recur (Dabney, 2010; Weisburd et al., 2003). In order to be effective the Police Foundation identified six key elements of Compstat that form a comprehensive approach for mobilizing police agencies to identify, analyze, and solve public safety problems: mission clarification; internal accountability; geographic organization of command; organizational flexibility; data-driven problem identification and assessment; and innovative problem solving (Weisburd et al., 2003). When compared to non-Compstat police departments, police departments that use Compstat have been found to be more likely to implement traditional crime control strategies rather than community problem-solving strategies to address crime problems (Weisburd et al., 2003). Willis, Mastrofski, and Kochel (2010) suggested a new form of Compstat that supports collective problem-solving, maintains accountability, and more fully embraces community policing. They observed that this may require diminishing the formality of the chain of command in crime control meetings to support more collaborative problem solving by a wider range of meeting participants. 

With this in mind and considering the recent increase in crime within Dallas, DPD may consider reviewing their current Compstat process to help ensure that the focus is not on reporting of statistics and reactive measures but considers proactive problem-solving initiatives so that the Compstat meetings add value towards the department’s crime strategy and are a productive use of time for all parties involved. 

The Dispatch functions in DPD similarly need to be rethought, say the consultants. Currently, every call gets the same priority. KPMG thinks they should stop assigning the first available officer, which takes cops off their beats and has them running around all over the city. Instead, they should enforce "beat integrity" and send the first-available patrol officer from that area. The wasted officer time driving around is one of the sources of freed up capacity the consultants hope to capitalize on to offset needs for additional hiring.

KPMG also praised the pilot program in Dallas which sends EMS and mental-health professionals as the lead responding to mental-health calls, using officers only for security. (The Austin City Council presently is considering whether to fund a similar pilot.) Not only does that lessen demand for uniformed officers, the consultants also praised the number of money saving hospital and jail diversions:

While DPD is making efforts in this area for example the establishment of the Rapid Integrated Group Healthcare Team (RIGHT) Care pilot program, which is a multidisciplinary team composed of a law enforcement officer with mental health training, a paramedic, and a behavioral health clinician, to answer mental health–related calls for service. This team is able to quickly mobilize and respond to people experiencing a behavioral health crisis in the community to divert people with complex health needs related to serious mental illness (SMI), when appropriate, from jail and emergency departments in order to decrease recidivism rates, better facilitate recovery, and more appropriately allocate community resources. Within the first year of the pilot the team affected 638 hospital diversions and 316 jail diversions.

In perhaps their most important and under-appreciated finding, Dallas PD has dramatically under-invested in civilian staffing across the board, the consultants concluded, and focused budget cuts on civilian an non-sworn positions instead of patrol. (That's one of the reasons the consultants recommended a clutch of civilian spots be filled first, before needs for additional police officers are assessed.) They wrote:

While the scope of the DPD staffing analyses was limited to the Patrol and Investigation Bureaus there were a number of opportunities identified to increase the use of civilian or non-sworn staffing within the Department. The DPD could benefit from the force-mix review of all functions within the department to help ensure that the right positions, with the right skills are performing the right roles. It was noted by DPD staff and leadership that during budget cuts the first positions to be unfunded are the civilian and non-sworn positions, however this can only serve to increase the burden on sworn staff and shift their focus from their core tasks.

Civilian staffing accounts for just 16 percent of total DPD staffing as of March 2019. When compared to the comparison cohort, this size of Dallas’s civilian workforce is the third smallest, with Dallas ranking ninth out of twelve agencies as civilians comprised only 17 percent of the workforce in 2017. As discussed in detail in the patrol report and illustrated in the graphic on the following page, the project team’s review of comparison agencies found that on average, 24 percent of their workforces were civilian staff.

Finally, DPD record keeping is such that some management evaluations couldn't be performed. The consultants gave detailed recommendations for improvements to record keeping, both practices and data points gathered, that they say will enable smarter decisions about how to deploy staff going forward. They don't say it, but one of Grits' favorite phrases comes to mind, here: You can't manage what you can't measure.

I don't understand why the Dallas Morning News feels the need to promote this hire-more-officers meme they've been hammering away at recently, but this report wasn't the platform on which to promote that narrative. The consultants didn't conclude that Dallas needs more cops, they said the agency needs to be better managed and re-organized.

That may not be the message Mike Mata and his local media bandwagon want to hear, but this study represents an opportunity for the Dallas press and, more importantly, local government, to pivot away from the simplistic meme that more cops are the only possible solution to crime. I hope they take it.

MORE: See DMN coverage of the city council briefing, and here's a DMN staff editorial struggling to come to grips with the fact that the consultants' analysis and recommendations fly in the face all prior DMN reporting and analysis on the topic. The editorial said the report's guidance was "sometimes confusing," but I didn't think so. They simply focused on more important management questions, whereas the Morning News' coverage has tried to boil down police-management issues to "how many more officers should we hire?," choosing between options of "a lot more" and "a whole lot more." The consultants showed that was a false choice that ignored pivotal issues facing the department that prevent more effective crime fighting. Hiring more officers before those problems are addressed puts the cart before the horse. At the briefing, "KPMG consultants repeatedly told city officials that there were strategic issues that needed to be addressed within the department before talking about overall department staffing numbers," the paper reported. IMO, any "confusion" stemmed from the News' wrong-headed coverage prior to the report's release. Grits thought the recommendations were quite clear and well-founded.

Reasonably Suspicious, June 2019 episode: 2019 #txlege roundup, Dallas cops' racist Facebook posts, and are 'progressive prosecutors' really a thing?

Here's the June 2019 episode of Just Liberty's Reasonably Suspicious podcast:

In this month's episode:

Top Stories

• Dallas cops' racist Facebook posts
• Texas Legislature a killing field for reform legislation

Fill in the Blank

• Texas Supreme Court: DAs can order prosecutors to violate constitutional rights
• Bail-reform died, and that's a good thing
• Should Texas prisoners all become plumbers?

Discussion: Are progressive prosecutors really a thing?

The Last Hurrah

• Red-light cameras abolished, will debts be erased?
• Colorado, Oklahoma surpassing Texas on #cjreform
• Evidence left behind after Houston SWAT raid

Find a transcript below the jump.

Dallas DA dishes decarceration decisions: John Creuzot releases a much-anticipated memo

At a debate co-hosted by Just Liberty last fall, then-Dallas-DA-candidate John Creuzot promised to produce a memo three months into his term to identify changes/reforms designed to reduce mass incarceration.

Here's the memo. Check it out! Let's run through some highlights:

Marijuana: The Dallas DA will not prosecute first-time offenders unless the offense occurred in a drug-free zone, involved a deadly weapon, or there is evidence of delivery. He also said he'd decline first-time 3rd degree felony THC possession cases, with the same exceptions.

Harder drugs: Creuzot will no longer prosecute "trace" drug cases, which typically involve sending paraphernalia to a crime lab to scrape traces for a possession prosecution. In addition, his office will not file drug charges on arrestees until after a lab report has come back, an will ask judges for summons instead of warrants to get those folks back into court.

Criminal trespass: Aiming to reduce prosecution of homeless people, Creuzot will decline criminal trespass prosecutions unless they involve a residence or "physical intrusion into property."

Theft of Necessary Items: Creuzot pledged not to prosecute theft under $750 "unless evidence shows the alleged theft was for economic gain."

Driving With License Invalid: Here's one where he could have gone further. Creuzot announced a "diversion program that will result in charges being dismissed for defendants who clear their drivers licenses." Since most people with suspended drivers licenses had them suspended because of nonpayment of Driver Responsibility surcharges, and since those aren't going away (at least not just because of this announcement), most folks simply won't be able to "clear" their licenses. Instead, he should simply decline prosecution for DWLI, as he's doing for most pot cases. No one needs to be arrested for what in essence is a criminalized administrative violation.

Probation: Arguably the most important measure announced when it comes to decarceration in the state prison system is Creuzot's decision to significantly shorten probation stints, a decision with a great deal of evidence-based support. He suggested presumptive probation terms of 6 months for misdemeanors, 180 days for state jail felonies, two years for 3rd and 2nd degree felonies, and 5 years for 1st degree felonies. He also instructed prosecutors to stop revoking probationers for "technical violations" that do not threaten public safety. Regular readers will recall that about half of probationers revoked to prison in Texas have their probation terminated over technical violations.

Bail reform: Creuzot established a presumption of release for misdemeanants and state-jail-felony defendants with no criminal convictions in the last five years. If there is clear and convincing evidence the accused will fail to appear or a victim could be harmed, a risk assessment will be used "as a guide for developing appropriate conditions of release," a protocol that will also be applied to more serious offenses.

Magistration: "As soon as construction permits," Creuzot will begin assigning prosecutors to magistration hearings so prosecutors "can screen cases and decline to prosecute those cases" that fall within his new policy.

***

To be sure, Creuzot's reform policies are more moderate than those rolled out last year by Philadelphia DA Larry Krasner. (See his memo.) Grits would have liked to see the Dallas DA embrace some of the plea-bargain and sentencing reforms adopted in Philadelphia. But this announcement definitely ensconces Creuzot in the ranks of reform-minded prosecutors; nobody else in Texas is doing more.

MORE: Here's the Dallas News' coverage of the memo.

Bail litigation updates across Texas, and other stories

A bit of personal news: After Just Liberty's Executive Director, Shakira Pumphrey, left to join the new Texas House Speaker's staff to work on criminal-justice policy, your correspondent was elevated to her old post on an interim basis. Many thanks to Shakira for all her hard work for Just Liberty over the last two years, and good luck at the new gig! Meanwhile, as Grits struggles to fulfill his new admin duties, here are a few odds and ends that merit readers' attention.

New Harris judges propose bail-reform framework
Just-elected judges in Harris County proposed a new bail framework that will become the basis for a settlement offer in the county's ongoing bail litigation. Reported the Houston Chronicle:

Under the new administrative rule, 85 percent of people arrested on misdemeanors automatically qualify for release on no-cash bonds, according to the county’s pretrial services division. People arrested for bond violations, repeat drunken driving and family violence are the only exceptions. These defendants must appear before a magistrate or judge within 48 hours, at which time they may also qualify for personal recognizance bonds.

DA may be liable in Galveston bail litigation
Federal bail litigation in Galveston survived a motion for summary judgement and may now go forward, a District Judge George Hanks, Jr. ruled this week. Hanks said defendants must be provided counsel at their bail hearing, a provision which tracks rulings in Houston and Dallas. (Most Texas counties do not provide attorneys at the bail-hearing stage, so this litigation result could be replicated nearly everywhere in the state.) Interestingly, Hanks also found that Galveston District Attorney Jack Roady, "who controls the county's bail schedule, was liable for his role in perpetuating a wealth-based detention system. Magistrate Edison had ruled that magistrate judges 'always strictly adhere' to the bail amounts recommended by Roady."

Chaos surrounds Dallas County bail-reform proposal
Despite having months to put together a proposal, in federal court this week, Dallas County officials appeared confused and unprepared, reported the Dallas Morning News. County officials wanted to put lawyers from the Public Defender Office at bail hearings, but judges appoint attorneys and some have told the county, "We're not going to participate," the paper reported. That's foolish. Providing defendants counsel at bail hearings is the one, crystal clear requirement that we can already tell will apply to all Texas counties based on bail litigation thus far (including the 5th Circuit's reaction to the Harris Co. bail suit). The Legislature should simply require it in a statute, or else federal courts will require it one county/lawsuit at a time. MORE.

Tea-leaf reading on execution-stay vote
The Court of Criminal Appeals stayed an execution in a case involving bite-mark evidence and Texas evolving, SCOTUS-dictated developmental-disability standard in death cases. On Twitter, your correspondent engaged in some tea-leaf reading over the vote count. I'm worried the Government Always Wins faction may have gained a new member. In other, related, news, I already miss Judge Elsa Alcala's voice on the court.

'Dead Suspect Loophole' in Public Information Act decried
In Austin, several recent cases have brought to light what local media are calling the "Dead Suspect Loophole" in the Texas Public Information Act. The Legislature changed the law in 1997 to say only information about cases that result in a conviction must be made public, and when a suspect dies (say, because they're shot by a cop or die mysteriously in jail), they're never prosecuted. The problems with the law-enforcement exception to Texas Public Information Act go much deeper than that, and the Legislature should address them, but I'm glad this aspect is being highlighted. That said, the loophole is discretionary. Local officials don't have to use it. This is a transparency issue that should be re-raised when the various pols' primaries roll around.

Which crappy, failing bureaucracy should run the Harris County Jail?
Sen. John Whitmire suggested the state should take over the Harris County Jail after its fifth suicide in two years. If the Texas Department of Criminal Justice did a better job, Grits might agree. Suicide attempts at TDCJ are quite high. Weird that the Governor wants the state to take over Houston ISD, now Whitmire wants the state to take over the jail ... there's a theme being developed around the capitol that local officials' autonomy in Harris County should be restricted. The recent blue-wave election there could exacerbate that dynamic in the still-red-as-roses Texas Lege.

Convict leasing history, victims unearthed
The Houston Chronicle has been providing good coverage of the discovery of dozens of black prisoners bodies buried in unmarked graves near Sugar Land. They were inmates leased to the Imperial Sugar Company, for which the town is named. For more on Imperial Sugar and the convict leasing system, check out Texas Tough by Robert Perkinson.

Rangers pulled off LaSalle Corrections investigations for alleged conflict of interest
The Sandra Bland Act required counties to have a separate agency investigate all deaths in county jails, and may have used the Texas Rangers, including at 7 jails run by LaSalle Corrections, a private prison contractor with a problematic history. The Dallas News reported alleged conflicts of interest, with the company hiring a former Ranger who's son presently oversees the Rangers at DPS. While not alleging misconduct, the Commission on Jail Standards has decided to pick a different agency to investigate LaSalle-run facilities.

Roundup: Lawsuit alleges cronyism and corruption at DPS; murder indictment of Dallas cop no aberration under outgoing DA; informant testimony makes for messy innocence claims; Pam Colloff's favorite #cjreform podcasts, and other stories

Here are a few browser-clearing odds and ends of which Grits readers should be aware:

Dallas cop indicted for Botham Jean murder
In Dallas, former DPD Officer Amber Guyger has been indicted for murder in the shooting death of her unarmed neighbor, Botham Jean. You've got to hand it to outgoing Republican DA Faith Johnson: She's been more willing to charge officers in wrongful shooting episodes than any Democratic elected prosecutor in Texas, or for that matter, as she boasted in this 13-second clip from the campaign trail, any other District Attorney in the country:


Lawsuit: DPS suffers from 'cronyism,' 'corruption'
A federal lawsuit has been filed accusing the Texas DPS under Col. Steve McCraw of "a 'good old boy' culture of cronyism and outright corruption." See initial coverage from KXAN in Austin.

Corrections Committee Interim Report out
The TX House Corrections Committee has published its Interim Report. Topics studied included responses to Hurricane Harvey, the need for specialized programming for 17-25 year olds, flaws in the state jail system, and heat litigation. More on this soon after Grits has had a chance to read it thoroughly.

Creuzot looking forward to Dallas DA stint
D Magazine published an interesting interview with Dallas DA-elect John Creuzot, for those looking for clues as to how this party hopping fixture in Dallas justice politics might operate at the helm of the DA's office. See the October Reasonably Suspicious podcast for excerpts from a debate between Creuzot and his Republican-incumbent opponent, Faith Johnson; the full 1.5 hour debate is here. Note to Judge Creuzot and other incoming elected prosecutors: Consider hiring this guy for prosecutor trainings.

Forum promotes public defender option for Travis County
A public-defender office has been proposed for Travis County. Those interested should check out this recent community forum discussing the possibility. See prior, related Grits coverage.

TDCJ troubles lead to calls for independent oversight
At the Texas Tribune, see coverage of prospects for independent oversight at the Texas Department of Criminal Justice in light of recent scandals, a rise in suicides, and gross understaffing at numerous rural units. House Corrections Chairman James White doesn't sound convinced.

Recanted witness, corrupt DEA agent won't sway Harris prosecutors on innocence claims
Especially in the context of the drug war, but also high-profile murders and violent crimes, the reliance of the justice system on self-interested testimony by confidential informants is one of the most significant causes of wrongful convictions. It's also among the hardest causes to prevent, and one for which the courts are loathe to provide redress. The Houston Chronicle's Keri Blakinger describes a case in which a DEA informant, who has since recanted his testimony, accused Lamar Burks of murdering someone at a dice game. But the Harris County Conviction Integrity Unit wouldn't budge. Now, one of the agents centrally involved with the investigation has been indicted in an unrelated case in New Orleans for perjury and falsifying evidence, evincing a similar fact pattern to what Burks' attorneys allege.

In The Dark shines light on amazing, terrible case
At Pam Colloff's recommendation, I've been listening to Season 2 of the podcast, In the Dark, focused on an apparent false conviction for a quadruple murder in Mississippi. This investigative tour de force is taking the form to new levels. Awesome work, as detailed in this Longform podcast interview about how the story was put together. When I interviewed her for the August episode of Reasonably Suspicious, Pam also recommended the second season of the Missing and Murdered podcast, and the podcast After Effect from WNYC, dissecting the aftermath of a tragic SWAT team raid. Just for fun, I excerpted her recommendations into a short, 2.5 minute clip, for anyone interested:


Sandra Bland documentary premiers on HBO Monday
Last, but definitely no least, on Monday, a documentary titled, "Say Her Name: The Life and Death of Sandra Bland," premieres on HBO. Grits simultaneously cannot wait to see it and dreads the broadcast. It's such a terrible, heart breaking story! Here's a review from the SA Express News, and the trailer:

Say Her Name: The Life and Death of Sandra Bland Promo Cutdown

New Day or an Anomaly? Dallas DA race became referendum on justice reform

It will be years before we know whether the Dallas District Attorney's race was a turning point or an anomaly in Texas prosecutor elections. Certainly, the state has never in living memory seen another one like it.

The sight of R and D candidates in a general election debating who would better reform the system stood in stark contrast to the days of tuff-on-crime DAs like Henry Wade or Bill Hill. This time, instead of trying to out-do one another with punitive promises, two former Republican judges (both former judges, one a former Republican) duked it out over who was more committed to reducing incarceration and enacting justice reform.

The victor, John Creuzot ran on a platform of ending mass incarceration and suggested he could reduce the number of people Dallas County sends to prison by 15-20 percent, as detailed by The Crime Report. Creuzot has promised to produce a plan to reduce mass incarceration within 90 days of taking office, so we'll soon see how he plans to accomplish that goal.

The group I work for, Just Liberty, co-sponsored a debate between the two Dallas candidates leading up to the general election. Go hear excerpts from a debate between the candidates here (at the 8:10 mark), or listen to the full debate.

Viewing the 2018 mid-terms through a Texas #cjreform lens

There are many lenses through which to view the 2018 mid-term elections. On this blog, your correspondent examines Texas politics and policy through the lens of a criminal-justice reformer, so let's think about the election in that vein for just a moment.

At the national level, the only viable criminal-justice reform proposal out there is the First-Step Act, with Sen. Chuck Grassley's sentencing-reform measures now amended onto it. Neither Dems taking the US House nor a few extra R senators should affect the ability of Majority Leader Mitch McConnell to muster 60 votes, given substantial Democratic support, so nothing should change on that front. It will pass, or not, during the lame-duck term. And there's no other significant federal #cjreform on the horizon, outside of whatever the President and Kim Kardashian may be cooking up.

At the Texas Legislature, changes were significant, but not seismic, and not entirely in reformers' favor. Two R senators lost their seats, including Republicans' most ardent criminal-justice reformer, Konni Burton. That's a blow. She's responsible for the most important if unheralded decarceration legislation (increasing property theft thresholds) that Texas ever passed.

The other R senator who lost, Don Huffines, supported abolishing the Driver Responsibility surcharge and eliminating red-light cameras, but otherwise shied away from criminal-justice reform issues and was never much help, though neither was he a hindrance. He was willing to be the fifth or sixth R vote in the Senate for a justice-reform measure; Konni was willing to be the first.

With Dan Patrick, John Whitmire, and Joan Huffman all returning, the senate will feel quite familiar on the #cjreform front. Those players' opinions and dynamics dominate all the major justice-related issues on the eastern side of the capitol and have not changed.

On the House side, Democrats picked up 12 seats. That exceeds (my) expectations and puts them within striking distance - nine seats - of taking control of the lower chamber in 2020 prior to redistricting. It also means that, if the Dems caucus together, any nine Republicans who want the lower chamber's top committee chairs could collaborate - as did Joe Straus and his lieutenants - and choose a Speaker of their own. That prospect was unthinkable when there were only 55 Democrats in the House. But I could imagine ten Republicans bailing on a Dennis-Bonnen speakership, for example, and deciding to place their own stamp on history. Time will tell.

Regardless, criminal-justice reform came out looking pretty good when one considers House elections. The Rs who were outspoken justice-reform supporters like James White or Matt Krause all came back. Indeed, Krause successfully fronted the topic as a wedge issue to blunt a challenger, Nancy Bean, who herself is a long-time justice-reform advocate, dating to the earliest days of the 21st century Texas reform movement.

Across the state, a number of Republicans in hot races turned to the Legislature's justice-reform record as evidence of bipartisanship and/or moderation, including Joan Huffman touting her support for correctional mental-health budgets. And R District Attorney candidates in both San Antonio and Dallas came off more sympathetic to reform than any Republican candidates for those offices in living memory.

Speaking of Dallas, even though national reformers opposed John Creuzot for DA in the primary, some of those same groups are now anointing him as America's next "progressive prosecutor." While that may be extreme - I don't expect Judge Creuzot suddenly to transform into Philadelphia's Larry Krasner - he did promise that within 90 days of taking office he would produce a plan for what the DA's office could do to reduce mass incarceration. Grits is very much looking forward to seeing that document.

Although no statewide elected officials were dethroned, judicial elections did reveal a chink in the Republicans' partisan armor: Democrats won 30 of 32 contested seats on the intermediate courts of appeal, including 19 previously held by Republicans. Reported the Texas Tribune, Democrats appeared to "flip four major appeals courts, taking back majorities in the judicial districts that serve Austin, Dallas and Houston. The 5th Court of Appeals, based in Dallas, has not elected a Democrat since 1992; on Tuesday, the 13-member court was set to elect eight Democrats, including a Democratic chief justice." As a result, seven of the fourteen intermediate courts of appeal in Texas now have Democratic majorities.

Further, Dems swept all 59 judicial seats at play in Harris County, including nineteen black women elected. All the misdemeanor court judges who opposed the civil-rights suit against the county over unconstitutional bail practices lost (as did one R who supported reform). And a new, 27-year old Democratic county judge was elected who wants to settle the bail suit, and boasts a legitimate #cjreform record (along with a poli-sci degree from Stanford and a law degree from Harvard). That may make the denouement of that complex drama unfold differently than it would have otherwise. The two sides will soon be briefing the 5th Circuit headed toward a final conclusion. At a minimum the contents of those briefs may now be quite different, and a settlement now seems more likely.

But outside of Harris County, from the perspective of criminal-justice reform in Texas, nothing major changed. Republicans still hold all the levers of control. Dems gained a little more influence in state government, but not yet real power. However, momentum for reform wasn't stifled, and on bail reform, in particular, a big  obstacle was removed.

We're in a transitional moment in national and state-level politics, and yesterday's elections had the feel of a violent maelstrom. But in the center of it, there was a calm surrounding prospects for bipartisan justice reform. Momentum for #cjreform didn't improve by leaps and bounds, but neither was it drastically harmed. In 2018, Texas candidates in both parties tended to view justice reform as a popular crossover issue with legs. That's a big change from just a few years ago, and the import of that transformation shouldn't be underestimated.

RELATED: For those interested, compare this item with Grits' pre-election analysis.

Listen to Dallas DA candidates debate mass incarceration, bail reform, jailing homeless people, and how prosecutors should respond to police shootings

The Dallas District Attorney race has emerged as one of the hottest local prosecutor races in the country, and was featured in a New York Times story today.

Regular readers know that, last week, along with our partners at a Dallas-based group called Evolve, Just Liberty co-sponsored a debate between Republican incumbent District Attorney Faith Johnson and Democratic challenger John Creuzot. Deandrea Flemng, co-founder of Evolve and a trustee at DeSoto ISD, moderated the conversation as the candidates answered questions submitted by the audience for nearly an hour-and-a-half.

In the latest Reasonably Suspicious podcast, we broadcast excerpts from that debate, giving listeners a taste of the conversation. I said I'd put out the complete audio of their discussion this week, so the publication of the Times story seems like a serendipitous moment to make good on that promise, for anyone interested:


One more thing: At that event, we distributed a handout guiding voters who oppose mass incarceration on what to look for in District Attorney candidates. You can check that out here.

Hypothesizing causes of Dallas County Jail population decline

The Dallas County Jail has dipped to its lowest population in recent memory and local officials can't agree why. Admittedly, it's hard to pin down a cause, though Grits could also make the case that the total should be even lower. See Dallas Morning News coverage from Naomi Martin.

The News placed some of the blame on declining numbers of arrests by officers: "Arrests by Dallas police are down. In 2017, Dallas police made roughly 4,200 arrests per month on average, city records indicate. In 2010, when staffing levels peaked, the department made 6,343 arrests per month."

However, crime is also down from 2010, so it's possible there are fewer arrests because there is less crime.

Plus, the number of cases processed didn't decline with the number of arrests, particularly felony cases which account for most pretrial incarceration. From the Office of Court Administration (whose data only goes through 2016), here are the recent total felony cases added to Dallas District Courts by fiscal year:

2012: 34,779
2013: 35,015
2014: 35,880
2015: 38,614
2016: 36,688

By contrast, there was greater fluctuation over that period in the number of indigent felony defendants appointed a lawyer in Dallas (see OCA annual statistical supplements, criminal case activity by county for district courts):

2012: 25,182
2013: 37,072
2014: 40,446
2015: 25,370
2016: 18,474

Grits doesn't completely understand what's going on there - either why caseloads aren't more related to arrests (though I have some hypotheses), or why the number of appointed counsel fluctuates so much, or for that matter why it dipped so low in 2016. And I don't know whether any of these things relate directly to recent jail population declines.

County officials took credit for the reduction, and it seems likely the programs they're touting had some effect:

Dallas County officials took a victory lap claiming credit for the reduction. Since 2012, the county has made lowering the jail population a top priority to cut costs, for both the county and for people arrested on minor charges. They say they have added diversion programs, streamlined booking and court processes, updated software and increased the use of electronic ankle monitors.

Looking at jail population reports from December 2012 and December 2017, a few things stand out. Overall, the inmate population at the Dallas County Jail was 17 percent lower in 2017 than in 2012.

The category of jail inmate with the biggest numerical reduction - felony defendants detained pretrial - represented a modest statistical decline of just 17%. Much less numerous state-jail-felony inmates being held pretrial declined by 44%. And also less-numerous parole violators being held prior to a hearing declined by 57% over this period.

So if felony court caseloads stayed about the same but felony pretrial defendants are the biggest source of reduction, that may speak to Dallas judges letting more people have personal bonds or low bails rather than fewer arrests being the cause, or to the streamlining efforts touted by the county. Indeed, since the last couple of  years coincided with a reduction in defendants receiving appointed counsel in Dallas, that implies the judges have played an even more important role, because the defendants are less likely to be represented.

So for Grits' money, this probably represents a technocratic success - intentionally streamlining systems and doing more with less - than it does some macro-level change. The biggest part of the reductions in the police force in Dallas took place before 2017, so any resulting arrest decline would have shown up gradually over time in reduced felony caseloads, not all at once as is being suggested.

Dallas County embracing risk assessments for bail, beefing up mental-health response teams

Dallas County is implementing a couple of significant criminal justice reforms, as described in this Morning News article. 

On the mental health front, Dallas Fire and Rescue received a $7 million grant from the Meadows Foundation to "launch Rapid Integrated Group Healthcare Teams, or RIGHT care teams, made up of specially trained police officers, paramedics and a mental health clinician. They will respond to crises and seek to de-escalate situations and determine the most appropriate course of action." Grits believes that armed police officers should serve primarily subordinate backup roles in these situations. The person trying to communicate with a mentally ill person they just met needn't complicate matters by carrying a gun.

Perhaps even bigger news: Dallas will begin using risk assessment to decide who gets released from jail: "Once at jail, anyone who is arrested will be screened for mental illness. The jail will send those results to judges to consider when setting bond. The county will also start using a risk assessment tool to arrive at an estimated level of danger and flight risk posed by each defendant."

According to the News, "Defendants' potential release from jail will hinge on mental health and public safety considerations, not just the criminal charges they face and a financial ability to pay bond." Further, "The county is doubling its pretrial staff from five to 10 in January to handle the expected increase in pretrial defendants they need to supervise in the community." Investing in pretrial service staff shows the county is serious. The open question: Will judges use pretrial services staff and abide by their recommendations?

Such changes should add to momentum for state-level bail reform when the 85th Texas Lege meets in January. Members from counties which have already shifted to a risk-assessment model should be less resistant to proposals that they do so from the Texas Judicial Council, which seems to be the direction they're heading.

Underfunded police pensions plague big Texas cities

Texas police and fire pensions in the big cities are a mess the legislature is ill-prepared to deal with in the coming 85th session. The cost of a possible bailout is too large to consider during a budget-year bleeding with red ink, but other alternatives require ignoring fundamental economic realities that could bankrupt the state's largest cities. Reported the Texas Tribune:

Austin, Dallas, Houston and San Antonio collectively face $22.6 billion worth of pension fund shortfalls, according to a new report from Moody’s, the credit rating and financial analysis firm. Moody’s analyzed the nation’s most debt-burdened local governments and ranked them based on how big the looming pension shortfalls are compared with the annual revenues on which each entity operates.

“Rapid growth in unfunded pension liabilities over the past 10 years has transformed local governments’ balance sheet burdens to historically high levels,” the report says. ... 

Houston, which came in fourth, faces a $10 billion shortfall, according to the report. That amount is more than four times the city’s annual operating revenues.

In Dallas, the Mayor has sued in a personal capacity to stop payouts that would bankrupt the pension fund and, ultimately, the city. According to the Dallas News, "hundreds of police officers and firefighters have become millionaires while insulated from the whims and risks of the markets." Moreover, “More than $500 million has been withdrawn from the $1.5 billion fund this year,”

One big issue which Grits had highlighted earlier is the pension funds penchant for excessive optimism when predicting future growth rates. According to the Tribune;

Moody’s applied its uniform analyses and formulas to the myriad governmental entities so that consistent comparisons could be made. But the firm’s process also resulted in different shortfall amounts than government agencies may estimate themselves. One reason for the differences is that Moody’s used each funds’ recent growth rates to estimate future fund balances, while many governmental entities estimate that their funds will draw higher growth rates in the future. 

For instance, Dallas reported a 5.4 percent growth rate that would put its shortfall at $5.4 billion. But Moody’s found the city’s pension fund was growing at a rate of 3.95 percent at the end of 2014. It calculated a higher shortfall of up to $7.6 billion. 

Houston reported a 7.72 percent growth rate and a $4.9 billion shortfall. Moody’s concluded that the city’s pension funds were growing at 4.44 percent in mid-2015 and adjusted its shortfall estimate to $10 billion. 

The report concluded that both Dallas and Houston in 2015 likely exacerbated their pension problems because they each contributed less to their funds than what was needed to keep the shortfalls from growing. Moody’s also downgraded the credit rating for both Dallas and Houston to AA3 this year. Unfunded pension liabilities were a primary driver in Dallas’ downgrade, whose outlook was also revised to negative.

Though, in the press, Houston's situation is always portrayed as less dire than in Dallas, it's worth noting Moody's downgraded both cities to the same levels. That's particularly salient once you account for Houston's high-balled estimated growth rate. Both of these pensions are in bad shape.

Already facing a multi-billion dollar shortfall, it's hard to imagine the Legislature effectively dealing with this issue next spring. But given how close the cities seem to be to full-blown catastrophe, it's possible they won't have a choice. If it comes to that, look for them to deal with it in a special session. I don't believe anyone is walking into opening with a set of real-world solutions that would satisfy everyone, and the issue is too big, complex, and involves too many powerful, interested parties to resolve in just a few months.

Judge warned DWI expert to stop talking, get a lawyer, after conflicting testimony

Here's more detail from the Dallas News on a North Texas forensic mess that Grits earlier referenced in a roundup:

A state forensic scientist whose work has been called into question will no longer serve as an expert witness or perform lab work in drunken driving cases in Dallas, Collin, Denton and Rockwall counties. 

At the request of court officials in those counties, cases pending trial that were worked by Chris Youngkin will be reanalyzed by another DPS forensic scientist, according to a statement from the Texas Department of Public Safety.

Benching Youngkin doesn't eliminate the problem, though, because he is still part of the chain of custody for blood samples collected in thousands of DWI cases.

The analyst's "credibility came into question over a 2013 lab error that showed a driver who had not been drinking had a blood alcohol level of 0.152," and he "has given conflicting testimony about that error in different trials in different counties." The News had earlier reported on a dramatic court hearing where the analyst's conflicting testimony surfaced:

According to a partial transcript of Wednesday's hearing, defense attorney Troy Burleson questioned Youngkin about a Dallas County case in which he testified he switched vials in 2013. Burleson then asked about Youngkin's testimony in the Collin County case in which he stated that he had never switched vials.

"We have two inconsistent statements that cannot both be true," Burleson's law partner, Hunter Biederman, said after the hearing.

County Court at Law Judge Lance S. Baxter advised Youngkin during the hearing that he had the right to remain silent and the right to consult an attorney. When Youngkin invoked his right not to testify, the hearing came to an end.

Police pension bailouts, dreaming of Oklahoma, and other nightmarish scenarios on Halloween

A few things, while I've got you:

Lab delays spur boost in Nueces Co. personal bond use
In Corpus Christi, prosecutors have enacted a standardized policy of offering personal bonds to defendants charged in synthetic marijuana cases, mainly because of crime lab delays. The most likely reason for the shift: "The time it takes to get test results on the substances has been longer than the maximum allowed sentences. Possessing synthetic marijuana is a class B misdemeanor punishable by up to six months in jail. Test results from the Department of Public Safety labs have been taking about nine months to a year to get back." They should keep close track of outcomes with these defendants, it will create a natural experiment to compare them with defendants convicted before they changed the policy.

With the chairmen of the House Criminal Jurisprudence and Calendars Committees both residing in Nueces, perhaps this news will place more pressure on the Lege to either adequately fund crime labs or adjust sentences to reduce pressure on them. Honestly, the whole crime lab system - at DPS and otherwise - is at the breaking point. Numerous disciplines have come under attack as fundamentally non-scientific, and even disciplines like toxicology with a more sound scientific basis are overwhelmed by volume and undercut by attempts to perform them on the cheap, as evidenced by the following item.

News flash: Bad field tests cause false drug convictions (and not just in Houston)
ProPublica has a great piece on the use of scientifically flawed "field tests" for drugs used in Las Vegas, NV, following up on important NY Times coverage earlier this year of the use of the same type of $2 tests in Houston. Both are must-read pieces of journalism for anyone interested in the topic. In Houston, this topic plays directly into debates in the DA's race over racial disparities in drug enforcement, as 59 percent of defendants falsely accused and convicted based on false positive from cheap field tests were black. They also pump up the state's "exoneration" numbers, ensuring that Texas will lead the nation in disproven false convictions for years to come just based on what's come out of Houston alone. The thing is, we know that EVERYONE who uses these field tests likely accuse innocent people, not just those in Houston or Vegas. These stories show us the tip of a much larger iceberg.

Requests for police pension bailouts pit cops vs. anti-tax conservatives
Increasingly it's clear that police pensions are a latent but fully primed flash point between anti-taxation Republicans in the Legislature, more liberal city councils, and local police unions. In Dallas, the pension us oversubscribed with too-generous benefits, has engaged in a series of flawed, risky real estate deals, and is losing money hand over fist. The fund in Houston isn't much better. In those and ten other Texas cities, local control of police and fire pensions has been wrested away by the Legislature and vested into independent bodies on which cities have a voice but unions (and the Lege) have ultimate control. Lately, the Laura and John Arnold Foundation's Josh McGee has been pounding away at the fundamental fiscal insolvency of these funds, mos recently in this excellent short report written with Paulina Diaz on the Dallas police and firefighters' pension. Their bottom line assessment of the crisis in Dallas: "The city’s public pension debt has doubled in less than two years due to inadequate funding, irresponsible benefit enhancements, and poor investment decisions. The total unfunded liability is now at least $4 billion—and the plans do not have enough money to pay for nearly half of the retirement benefits workers have already earned."

All these pension funds want bailouts either from local or state taxpayers, putting the police and firefighters unions directly in conflict with low-or-no-tax conservatives around the state, not just in the Tea Party wing of the GOP but also among establishment Chamber of Commerce types who abhor large tax hikes. Police and firefighters are among the last employees who receive defined benefit pensions instead of defined contributions (typically in 401ks) like most everybody else. They'll claim the sky will fall if that's changed, but the truth is, as the Arnold Foundation report ably demonstrates, the sky will fall if nothing changes. MORE: The Texas Public Policy Foundation is holding an event on public employee pensions in Austin next week.

Dreaming of Oklahoma, and other unlikely scenarios
Grits never thought the day would come when I could write this, but part of me is a little envious of Oklahoma, or I should say Oklahoma reformers. They've put drug sentencing reductions on the ballot and therefore can have a conversation about the idea's merits directly with the voters instead of filtering reform through the legislative process, with the resulting compromises, delays and special-interest interventions that inevitably entails. OTOH, Grits was doing this work in the '90s, so I can remember an era when I was quite grateful Texas didn't have initiative and referendum. The tough-on-crime crowd could and would have proposed, and voters would likely have passed, much worse stuff, even, than actually got through, except in a venue where opponents have had no way to oppose, modify, counter or coopt the details of the proposals.

So while the prospect of ballot initiatives is tempting - and while part of me wishes we could similarly test Texas voters' views on criminal justice reform more directly than just polling, which generally shows support for the main reforms presently on the table, but whose results haven't been tested by the gauntlet of special-interest attacks which face a ballot initiative of this sort - I'm still glad Texas doesn't have initiative and referendum and would oppose it here if it were seriously suggested. If I were in Oklahoma, though, right about now I'd be busting my hump to help Questions 780 and 781 pass. Good luck to them.

Piling on CCA CoreCivic
In response to federal prison contracts being rescinded and surprisingly successful divestment campaigns aimed at reducing their capital, Corrections Corporation of America, the private prison operator, has rebranded and renamed itself as CoreCivic. According to this source, "Last month, CCA fired 12 percent of its corporate workforce to deal with sharply dropping investment—largely thanks to growing pressure campaigns to divest from private prisons." Here's the company's press release. Not to pile on, but I should mention several of the private prison facilities Grits has argued should be prioritized for closure by the Texas Legislature in 2017 are CCA CoreCivic units.

Dallas eliminates special protections for officers after police shootings

Great news out of Big D, where police accountability activists scored a major victory this week. Reported the Dallas News (Aug. 18):

The Dallas Police Department has discontinued its policy of waiting 72 hours to interview officers involved in police shootings.

The announcement came late Thursday as part of the department's response to a 14-point list of demands made by the Next Generation Action Network. The group has railed against police brutality nationwide and called locally for more community oversight in officer-involved shootings.

"Effective immediately, every officer will be provided the same legal rights as any other citizen who is the subject of a criminal investigation," the department said in a statement. ...

The department's policy had given officers 72 hours before they were asked to make a formal statement to detectives in the special investigations unit, which studies all assaults and shootings involving police officers.

Regular readers may recall Grits blasted that policy when DPD enacted it in 2013, so this is welcome news. Grits can't immediately tell from the coverage if the change applies to all misconduct allegations or only shootings, but the former would be preferable to the latter.

The question immediately arises: Might other Texas jurisdictions follow suit? The answer is maybe, it's complicated.

Dallas Chief David Brown could do this unilaterally because  their negotiators did a better job retaining power over the disciplinary process in their "meet and confer" (read: collective bargaining) agreement with the local union than, say, their counterparts in Austin or Houston.

The Dallas agreement (pdf, p. 7-8) does not dictate that agency's disciplinary process the way Austin's does. Instead, it specifies that, "the City shall retain the sole, exclusive and vested right, prerogative, power and authority to ... establish, eliminate, modify, review, and enforce rules and standards governing job performance, personal conduct and appearance, uniforms and equipment, safety, training, education, attendance, discipline, and efficiency ... [and] the right to establish, abolish or modify processes and procedures for investigating and reviewing Officer conduct and complaints relating to that conduct."

Under their situation, the chief can make that decision unilaterally.

By contrast, Austin's meet and confer agreement (pdf) is much more detailed and dictates every detail of the disciplinary process. When Austin PD interrogates cops over misconduct, they receive an array of special protections which don't apply to average citizens.

For example, not less than 48 hours before an Austin police officer must give a statement to investigators about alleged misconduct, he or she must be provided with "a copy of the complaint(s)," as well as any additional allegations discovered by investigators which are not included in a complaint. The officer and their attorney may also "review the portions of any document(s) in which it is alleged that the Officer provided false, incomplete, inconsistent, or conflicting information, or in which it is alleged that the Officer omitted information in violation of any law or Department policy," as well as "any report, supplement use of force report, or other statement recorded or written by the Officer, setting forth particulars or facts regarding the operative conduct which is the subject of the allegation(s). In addition, officers are also "provided an opportunity to review any videotape, photograph or other recording of the operative conduct or alleged injuries, if any, which is the subject of the allegations if such a recording is within the possession or control of the Department."

In Houston, by contrast, their 48-hour rule is enshrined in HPD's stand-alone section of the state civil service code. There it dictates that officers receive notice 48 hours before being subjected to interrogation under the statute. But their meet and confer agreement goes further, letting officers see copies "of the statement/affidavit/complaint that serves as the basis for the complaint by the complainant at the time the 48 hour notice is given," as well as any "written statements or affidavits received or gathered by the investigative authority from witnesses, officers or supervisors obtained during the investigation before the officer's interrogation."

Imagine these same protections being applied to regular criminal defendants. Basically, the stuff the Michael Morton Act says most defendants get to see after they're formally charged, Austin and Houston police officers get to see before they're ever even questioned by investigators. As a former GOP DA candidate in Dallas, Toby Shook, said when their policy was enacted, "Police detectives often get very damaging statements from suspects shortly after the incident. At trial if the defendant’s story changes the prosecutor quickly argues to the jury that the defendant has changed his story and is lying." Police officers, however, are held to a far lesser standard and those sort of "gotcha" tactics don't apply to them.

Bottom line: the new Dallas rule is a good one but some other jurisdictions may be prevented from implementing something similar without revisiting the subject in their meet and confer contracts. Chief Brown could accomplish this quickly because past collective bargaining agreements did not tie his hands on officer discipline. Other departments which weren't as wise must wait until their contracts expire before it's possible to follow suit. When that happens, they should seek contract language closer to what's in the Dallas agreement.

RELATED: On the limits of enacting police reform through union contracts.