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.

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.

Trump Super Bowl ad bolsters red-state #cjreform prospects

It's a sign of changing times that two Super Bowl ads ran yesterday (worth >$5 million each) related to criminal-justice reform. One was from the NFL (on police shootings), which I suppose could be considered a house ad. But the more surprising one by far was a new commercial from President Donald Trump's re-election campaign touting his clemency for Alice Free and passage of the First Step Act, which among other things shortened sentences for thousands of presently incarcerated federal prisoners.

Having spent more than $5 million on a Super Bowl ad, it seems highly likely we'll see this message quite a bit more in the coming weeks and months. The only reason you spend that kind of money is to launch a broader campaign. So this is a signal the First Step Act will be a central focus of the president's re-election message for at least part of the year. That can only help downstream reform efforts.

Grits found Trump's ad a bit odd and overstated, but from a big-picture perspective, I'm thrilled he ran it. As I wrote following the First Step Act's passage, the president's endorsement makes it harder for state-level Rs to adopt anti-#cjreform rhetoric and easier to embrace it. Now, "With Donald Trump's full-throated endorsement of the First Step Act, and with his son-in-law championing it in his administration, conservative Republicans supporting #cjreform are aligning themselves with the president headed into the next election."

To be clear, President Trump's record on criminal-justice issues has mostly been atrocious going back to the 1980s when he took out newspaper ads hounding the system to apply the death penalty to the Central Park Five (who were later exonerated, see Ava Duvernay's When They See Us). But even stopped clocks are right twice per day, and whatever one may wish it did besides what it did, the First Step Act was an improvement over the status quo and led to the release of thousands of already sentenced people earlier than would otherwise be the case.

At the Texas Legislature, proposals that release already-sentenced prisoners early based on good behavior or programming success have long been a third rail. It's why Texas has prison units that could be mistaken for nursing homes and incur exploding end-of-life healthcare costs. But even among conservatives, opinion is shifting. Following the most recent legislative session, the Texas Public Policy Foundation expanded its agenda to include adjusting parole policies to allow more releases. (I interviewed TPPF's Marc Levin about this last summer, listen here beginning at ~12 minute mark.)

Now, critics of such policies find themselves on the wrong side of the president's re-election messaging. That doesn't mean there won't be resistance to #cjreform initiatives, but it arguably helps undermine opposition to them.

MORE: On Twitter, former Texas House Corrections Committee Chairman and well-known GOP justice reformer Jerry Madden says he thinks Trump campaigning on #cjreform helps in blue states, too. Maybe so, I only feel qualified to speak reliably on Texas. But my sense is that Democrats will either consider the ad a ploy and ignore it, or else criticize the First Step Act for not doing more, which is what they were already doing anyway.

It's on the GOP side where this has the potential to shift the terms of debate. If the Trump campaign follows up this $5 million expenditure with millions more to promote the message in the coming weeks and months, which is how these things generally work, it will encourage his base to gravitate toward Right-on-Crime-type positions they would have criticized had Hillary Clinton adopted them.

Mass incarceration arose in the first place because, 25-30 years ago, there existed an unwavering bipartisan consensus in favor of making the system harsher. We won't ever reverse all that until both parties support overturning that generational policy error. Perhaps I'm being too sanguine. But if the Trumpian base begins to internalize #cjreform messaging as a result of this election cycle, and if reformers succeed in scaling back the carceral system, then maybe, down the line, history could recall this ad and the reaction to it as an important part of the story of how a new, de-carceral consensus was developed.

Confronting racism at Austin PD, ↓ TX solitary numbers may be an illusion, driver license suspensions not enhancing collections, Big-D bail reform collapses into confusion, and other stories

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

Racial bias and disparities at Austin PD
A new report from the Austin Police Monitor's office demonstrated that black Austinites are disproportionately affected by police stops, searches, and arrests. The disparities are quite large, but Austin PD doesn't provide the data needed to drill down and discover particular officers engaging in discriminatory practices. The report comes in the wake of an assistant chief stepping down in December after a whistleblower revealed racist texts and emails sent to other departmental brass over many years. The city council ordered a review of internal officer communications in response that may reveal more racist officer communication, which has the police union mad as a wet hen. The Police Monitor's report provides a less personal, more systemic assessment of racism in the department, looking beyond individuals' points of view to the impact of departmental practices. Good for the Austin city council for taking this on.

Austin police chief orders arrests for crimes cops can't prove
In other Austin PD news, Grits finds bizarre Chief Bryan Manley's position that the department will continue to arrest and cite people for marijuana possession after the City Council forbade them from doing the lab testing to prove THC levels were above .3% and the substance could be distinguished from hemp. Isn't this the police chief openly saying he has ordered his officers to arrest people when they cannot prove the elements of the crime? To my attorney readers: What legal mechanisms exist to restrain police who openly choose to make wrongful arrests that prosecutors universally dismiss? IANAL, but it seems to me police don't have authority to arrest when there's no probable cause to believe a crime was committed. And since marijuana and hemp come from the same plant, they're indistinguishable without the test.

It's also worth mentioning, bringing the subject back around to the prior item, that marijuana enforcement generates even higher racial disparities than other Austin PD activities, reported the Austin Chronicle:

Data from APD shows that in 2019, a total of 432 citations were issued for marijuana offenses. Of those, 364 went to Black or Latinx Austinites, while just 64 went to white residents – despite similar levels of marijuana use among all three populations. So stopping enforcement of low-level cannabis offenses (see "Council Unani­mous­ly Votes to End Low-Level Pot Enforcement," Jan. 24) could reduce the disproportionate impact arrests and citations have on Austin's Black and brown residents. 

"It's outrageous for APD to be pointlessly writing these worthless pieces of paper," Emily Gerrick, an attorney with the Texas Fair Defense Project and an architect of the POM resolution, told us on Monday, Jan. 27. "Resources could be much better spent trying to address those types of racial disparities in the first place, such as with anti-implicit-bias training."

Competitive DA primaries in Texas
The Appeal compiled a list of competitive DA primaries in Texas. Harris, Travis, and El Paso counties are the big prizes. See a related spreadsheet.

Revenue collection not enhanced through driver license suspensions
The suspension of drivers licenses for nonpayment of traffic fines through the OmniBase program does not correlate with higher payment rates, found an analysis by Texas Appleseed and the Texas Fair Defense Project. The program "has a profound negative impact on people already struggling financially, driving them into a cycle of debt and poverty by taking away their ability to legally drive." The groups encouraged cities and counties to stop using OmniBase altogether, suggesting payment rates may be unaffected.

↓ Texas ad seg numbers may be an illusion
The Texas Observer's Michael Barajas took a deep dive into solitary confinement issues. Texas' numbers of prisoners in solitary, dubbed "ad seg" in TDCJ parlance, has declined by more than half, according to official figures. But Barajas' reporting raises the possibility that some of that reduction stems from reclassifying prisoners, not changing the conditions they live under:

as the Texas Tribune reported last year, some of TDCJ’s new programs may actually mask the extent to which the state has reformed its solitary confinement practices. Inmates moved out of solitary and into a mental health diversion program still live in conditions that seem indistinguishable from solitary; prisoners continue to be confined in small spaces and have limited time outside their cells. Regardless of these similarities, Texas doesn’t count its participants as being in isolated housing.

Dallas bail reform collapses into confusion
In Dallas, D Magazine has the story of how bail-reform their has collapsed into confusion. Was glad to see the article critique the same, ill-conceived op eds from the Dallas News at which Grits lashed out in this post. Here's  how the author, Shawn Shinneman, summarized the flaws in the DMN editorial board's analysis:

That editorial is inaccurate. It suggests we have true bail reform in Dallas County. We don’t. It insinuates Creuzot’s wish-list reforms are in place. For the most part, they aren’t. It also conflates a violent offender with the type of defendant bail reform is targeted at: poor people who are accused of a nonviolent offense, whose lives are upended because they don’t have money to post bond.

Long-time ex-San-Angelo police chief indicted for bribery

Timothy Ray Vasquez, who was police chief in San Angelo from 2004-2016, has been indicted in federal court for allegedly taking bribes related to the purchase of an $11 million radio system. Most of the alleged bribes were funneled through a wedding band called "Funky Munky" the chief played in on the side.

Reentry travails in Tyler
In The Tyler Loop, Jennifer Toon has an excellent essay on the travails of reentry given limited treatment resources and lack of halfway houses outside of the big population centers.

Economists economisting on crime
See the lineup for the Texas Economics of Crime Workship at Texas A&M, organized by Prof. Jennifer Doleac. As regular readers know, I consider economists' analyses of crime generally flawed and harmful. But thankfully, as in this workshop, most economists analyzing criminal-justice issues aren't utilizing economic principles, they're just doing applied math.

Flawed forensics chronicled
Recent coverage of flawed forensics deserves readers' attention:

• New York Review of Books: Jailed by Bad Science
• GQ: Evidence on Trial: Why the forensic evidence is less reliable than we think
• The Outline: The dangerous shortcomings of forensic science
• Science and Justice (academic): Cognitive Biases in the Peer Review of Bullet and Cartridge Case Comparison Casework: A Field Study

1994 Crime Bill revisionism

Doug Berman says the 1994 Crime Bill wasn't as bad as you think and maybe even did some good, from the vantage point of 20/20 hindsight. But it still "fostered and reinforced tough-on-crime attitudes in Washington and among state and local criminal justice officials that contributed to historic growth in national prison populations." That's the most important takeaway, IMO. These revisionist analyses are fine, but here's the thing: Federal crimes are a small part of the system, so the biggest impact of the 1994 Crime Bill was political: It galvanized bipartisan support for mass incarceration that led to so-called liberal Democrats running political ads like this one:

Margaret Moore's self inflicted wounds

Is it just me, or is Travis County DA Margaret Moore behaving like someone who really doesn't want votes in a Democratic primary? She started out her re-election campaign facing serious criticism on the first item below, but the rest seem like self-inflicted wounds.

Serious criticisms of record handling sexual-assault cases
A lawsuit by sexual assault survivors, supported by Austin firefighters, claims indifference by her office: This is easily the most damaging complaint against her, as one of her principle opponents, Erin Martinson, is running nearly exclusively on this issue and has proven quite formidable. Moore digs the hole deeper, though, by responding defensively on the stump and eliding the core complaints. Here's her written response to the allegations in the Austin Chronicle.

Regressive stance on innocence case
Moore wants to retry Rosa Jimenez, an Austin babysitter convicted of murdering a toddler in her care, despite four federal judges having declared she is likely innocent and should be released. After a federal magistrate judge dressed down the DA's office in open court, expect this to become a growing problem for her campaign. UPDATE: More on this case here.

Out of step with party on pot prosecutions
Moore says she supports pot legalization, but when Austin announced plans to move ahead with a local decrim policy, she hyperventilated on Fox claiming violent crime is rising and it's pot related, without providing specifics. How does she imagine such horse hockey will fly in an Austin Democratic primary?

DA of Death
Moore is the only candidate in the race who supports the death penalty: Not only that, on the stump she goes out of her way to suggest hypotheticals when she'd use it, for reasons I can't grasp. In a general election, or a different county, that might be fine. But in a Democratic primary in Austin, she's not saying things the base wants to hear. If I were her consultant, I'd tell her candidate forums aren't law-school class, stick to describing your record. Grits attended a DA candidate forum held by the Circle C Democrats, who later endorsed Erin Martinson. The crowd responded negatively to Moore's answers on the death penalty question.

Opposition to counsel for indigent defendants at bail hearings
Moore does not support making sure people have defense attorneys at magistration hearings where bail is set, even though prosecutors can be there. A federal judge in Galveston County issued an order requiring attorneys be provided to indigent defendants at that stage, and in Dallas and Harris County, judges ordered hearings within 48 hours if bail was required and a defendant couldn't pay. So, reading tea leaves, when the dust finally settles around bail-reform litigation in the 5th Circuit, there's a strong likelihood providing lawyers at magistration will be mandatory, not optional. Declining to do the right thing until you're forced to do so is a bad look.*

That's a lot of attack fodder available to Moore's two challengers. When the campaign started, Grits thought Moore would be hard to beat. Now, I'm wondering if she'll even limp into a runoff!

*CORRECTION: The original version of this post misstated details of bail-reform orders in Dallas and Harris Counties and has been corrected. See the comment section for details.

First impressions from Travis County DA debate

Until seeing the candidates debate at a Circle-C Democrats' forum the other night, Grits had wondered whether a reform candidate could really beat incumbent Travis County DA Margaret Moore in the upcoming Democratic primary. But now I can see the path.

The missus attended a second forum for District and County Attorney candidates, hosted by South Austin Democrats, the following night and came away with similar impressions.

I didn't take notes and wasn't there to formally cover the event, but here are my current thoughts on this local race, in no particular order.

1. Mad Margaret: Margaret Moore was all smiles working the room before the forum, but on the panel with the other candidates, she appeared sour and unhappy. The white-haired party volunteer sitting next to me leaned over at one point and giggled, "Margaret is mad."

2. Reform vs. Experience: Of the three candidates, Jose Garza comes most connected to the national #cjreform movement represented by DAs like Larry Krasner in Philly or Chesa Boudin in San Francisco (who beat an establishment-backed Dem over the weekend). But Garza's not as deeply experienced in the local justice system as either of those two. I like Jose, even though both he and Martinson would face steep learning curves on the job. OTOH, that may not be a bad thing, to the extent such "experience" leads candidates to naysay change, as Moore has largely done. And both appear prepared to surround themselves with qualified lieutenants if they win the job.

3. Martinson's Wheelhouse: To the extent the race centers around how the DA's office handles sexual assault cases - and if the firefighters' association has anything to say about it, it certainly will - it benefits Erin Martinson, who for 12 years ran the protective-order division at the Travis County Attorney's Office, more than it does Garza. Martinson did her best when she challenged Moore directly on these questions. She did a great job of threading the needle between improving responsiveness to victims and reducing mass incarceration, using examples from restorative-justice philosophy and practice and her own experience working directly with domestic-violence victims. This background gave her a lot of gravitas speaking to these questions.

4. Some backstory about Moore and reformers: Last year, Margaret Moore and County Attorney David Escamilla approached local #cjreform advocates seeking support to merge the District and County Attorneys offices. Advocates responded with a menu of reforms we'd like to see them enact. Both refused to seriously discuss them, insisting that only insiders understood what was really needed to change the system. (This theme has continued: "Insiders know the system," Moore told the Statesman the other day, "The general public doesn’t understand our system.") Recently Moore characterized that menu of reform ideas as "demands," but in reality they were merely a counterproposal: If she wanted support to merge the DA and CA offices under her solitary command, we sought more reform-minded changes in return. She declined, and her merger failed. It's not like anyone then began protesting on her doorstep. But everyone certainly noticed the choices she made and the priorities they evinced. In this, she is a great deal like Kim Ogg, elected as a progressive without having to demonstrate any actually progressive policies, then resentful when #cjreform advocates demand change. Both Ogg's and Moore's races to me evince a similar dynamic, mainly because of how scornfully establishment Democratic incumbents are reacting to the reform wing of their party.

5. Who disavows the death penalty? Moore was the only candidate of the three who refused to disavow seeking the death penalty under any circumstance, saying she would have sought it for the Austin bomber if he had lived. In a statewide general election, that would suffice; in an Austin Democratic primary, maybe not. The crowd murmured with disapproval at her answer while responding with approbation to her opponents' condemnation of capital punishment.

6. Another big split: Garza and Martinson both said they'd use their discretion to stop prosecuting low-level felony drug-possession cases altogether, which would be a more aggressive stance than other "progressive DAs" in Texas so far. Moore said she agreed in principle but that it was better to divert the cases to misdemeanors, for fear of what the Legislature might do. Garza later drew a big applause line by responding that the DA must do what's right and not shy away from their principles out of fear of what the governor might do.

7. Reform-minded Dems: Criminal-justice-reform philosophies are spreading among the Democratic grassroots, and audience members were knowledgeable and engaged in a way that was refreshing. In both this race and the County Attorney's forum, reform-minded messaging appeared to score the most points with the audience of likely Democratic primary voters.

8. Time for a change: Grits likes Margaret Moore well enough personally, and she was a big improvement over the booze-soaked bully she replaced as Travis County DA before her. But simply not being a mean-spirited drunk is insufficient to the current moment, however much a welcome improvement that was in 2016. Moore's professional career spans nearly precisely the generation that spawned mass incarceration; at root, she retains the values and attitudes that created it and doesn't appear likely to embrace reforms that could dismantle it.

When this race started, it seemed to come down to a battle between Garza and Martinson to make the runoff with Margaret Moore. Between Moore's angry showing at candidate's forums, the firefighter union's surprisingly harsh attacks, and the receptiveness of Dem primary voters in Travis County to #cjreform messages, I'm now wondering if it's possible the wounded incumbent might not even make a runoff?

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.

Local press calls out Houston mayoral candidates' false statements on crime

Challengers in local political races love to engage in demagoguery about crime and try to blame the incumbents. That becomes a tad more difficult when crime is actually low. But usually they can still get away with it because the local media thinks their job is to "quote both sides" (in this case, the two sides being "lies" and "reality") and will put out their message even when it's false.

So we must give credit where it's due to St. John Barned Smith and Jasper Scherer of the Houston Chronicle for their article on crime debates in the Houston mayor's race. Drawing on lessons national journalists have had to learn in the age of Donald Trump, they wrote a piece that calls out exaggerations and falsehoods about crime in a way that's incredibly rare for local reporters.

Challengers to Mayor Sylvester Turner attempted to mislead the public about crime in the wake of his recent State of the City speech.

“I know what’s going on in this city,” [millionaire attorney Tony] Buzbee said. “Don’t tell me crime is going down when everybody across the country knows that Houston is one of the most dangerous cities in the United States.” 

Bill King, another prominent mayoral contender, has decried a “growing randomness and violence to crime that alarms people.”

The next paragraph, though, let's us know that these reporters have learned a lesson or two about lying politicians that makes your correspondent a bit more sanguine about the profession:

While experts say such arguments aren’t unusual for political challengers, the numbers largely say otherwise. Like the rest of the country, crime in Houston has plummeted over the last 30 years, as has residents’ fear of crime being the city’s most pressing problem. FBI data show that most categories of crime in Houston have fallen or remained stagnant during Turner’s term, which began in January 2016. Criminologists also scoff at the claim that Houston is among the country’s most dangerous cities.

During Turner's term, in fact, "From 2015 to 2018, murders dropped and robberies fell; burglaries decreased; thefts fell; and fewer vehicles were stolen. The exceptions were aggravated assaults and rapes, which rose in 2017 before declining again in 2018." On Buzbee's campaign website, by contrast, he insists without a shred of evidence, "All types of crime are on the rise." That's patently false.

Indeed, your correspondent was quoted in the story declaring, "“We are at the bottom of a 30-year decline, more or less, in the crime rate,” and insisting, “Houston is safer than has been for a really long time, honestly, is the truth of it."

Buzbee says that Houston has more crime than 95% of American cities, which is true, but misleading. Heck, since Houston is the third largest city and there are nearly 20,000 municipalities in the United States, I'd have said more than 99%. But that's a meaningless number. Comparing crime totals in Houston to those in Dalhart or Raymondville is a silly and pointless exercise. The article quoted national experts to give context to the claim:

“When we talk about the murder capitals of the country, the violent crime capitals of the country, Houston is not one of the cities people put on that list,” said Jeff Asher, a New Orleans-based criminologist. “At least anyone familiar with the data.” 

Ames Grawert, senior counsel for the Justice Program at the Brennan Center for Justice in New York, said it is misleading to compare the crime rate of a city with 2.3 million people to those of small towns, which frequently have much lower crime rates. 

A more accurate measure, he said, would be to look at other large cities across the country. 

Among the nation’s 30 largest cities, Houston’s murder rate “is thoroughly middle of the road,” Grawert said. “I don’t see Houston as being one of the more ‘violent’ places in the country.”

Buzbee insisted that, if he were mayor, Houston would add 2,000 police officers to the force (currently with a little more than 5,000 officers), over his first four years. Mayor Turner, by contrast, has suggested adding 500.

Buzbee's suggestion is simply ridiculous (and thus, demagogic) to anyone who understands municipal budgets. The Legislature just capped spending increases by municipalities, so adding that many officers would require eliminating spending on things like roads and flood control. There's no math that makes the suggestion work, it's just silly on its face.

By contrast, Turner's other opponent had a more legitimate criticism:

King contended HPD’s increase in sworn officers under Turner is “window dressing,” because the officers have to perform the functions of the declining civilian employees. Soon after taking office, Turner vowed he would never lay off any police officers.

King is right about the civilian staffing. I like Mayor Turner and was a fan of his when he was in the Legislature. But even then, he has always been in the pocket of the police unions and was never comfortable bucking them. King is right that the decision to lay off civilian staff instead of cops was short-sighted. Having more expensive, uniformed officers provide clerical and support functions is wasteful, bad management.

That's why, when Dallas hired management consultants to tell them how many more officers to hire, they couldn't get a hard number. How many cops you have is less important than what those cops do. The consultants in Dallas told the city council, much to their consternation, that they needed to hire more civilians and reorganize officer duties before considering hiring more cops. If the same analysis were performed for Houston, I believe they'd find that's the case there, too. 

In Austin, where Houston chief Art Acevedo was posted before becoming chief in H-Town, civilian duties were widely neglected in favor of hiring more officers. Crises at the crime lab and failures at sex-assault victim services cropped up nearly as soon as he left, and virtually every other civilian function in the agency (except the Public Information Office - he does value PR) was starved and short-shrifted during his tenure.

That said, even with this debunking, the strategy of lying about crime could still work. Survey after survey shows the public thinks crime is rising, even when it's precipitously falling. That's slowly starting to change, but it's something a demagogue can manipulate. Candidate King touched on what I think is the reason public opinion doesn't track with reality: “When you actually see a crime being committed on your computer screen, especially if it involves violence, it obviously (has) a much greater impact than reading dry crime statistics.”

Bingo! It may be hard for anyone under 50 or so to imagine, but thirty years ago, local news was local and crimes reported in the newspaper or on nightly TV news happened in the town a journalist covered. Today, crimes committed anywhere and everywhere on the globe show up in our news feeds in seemingly endless waves, giving an impression of lawlessness and danger that's just not borne out by data.

That's what Buzbee and King are counting on: that the public's ignorance and gullibility will trump reality. And it could work. As H.L. Mencken long ago advised, no one ever went broke underestimating the intelligence of the American public. But when the media do their job well, as for once happened here, it makes capitalizing on public ignorance a lot more difficult.

Beto bitter over El Paso police-union fight: Here's why that's okay

Grits must admit, I thought a bit more highly of Beto O'Rourke after reading this feature from The Intercept detailing his fraught relationship with the police union in El Paso when he was on the City Council.

Police unions have increasingly found themselves in conflict with progressive Democrats in cities across the country, and are notorious for defending even the worst officers on the force against charges of assault or murder. Chris Evans, O’Rourke’s spokesperson, said that when he relayed The Intercept’s inquiry to O’Rourke, O’Rourke’s first memory of the fight was that police were demanding a provision that would give officers a 48-hour window after a police shooting before they would have to answer an investigator’s questions. That provision is indeed in the contract; O’Rourke’s remarks at the time, however, were focused on officer compensation and El Paso’s strapped budget.

I'm glad O'Rourke is aware of the 48-hour-interview issue. But it sounds like he wants to divert attention from his earlier focus on opposing police-wage hikes, perhaps because the theme might resonate negatively with the broader union movement. That's understandable.

Given that O'Rourke was on the city council at the time, however, it was his job to worry about budgets at the height of the Great Recession, which is when this debate took place in 2010. And for many reasons, both having to do with competing ideologies of the moment and century-old union history, picking a fight with police unions isn't the same as picking one with the broader union movement.

The politics of justice advocacy and police unions are fraught, as the Intercept article does a good job of conveying. It's a longstanding tension, which extends not just toward progressives but the broader labor movement.

As Ron DeLord, founder of the Combined Law Enforcement Associations of Texas, recounted in an interview with Grits last year, police unions split from what was then the American Federation of Labor (the CIO didn't exist yet) after the AFL refused to back the Boston police union when they struck in 1919. The cops' history as indifferent strikebreakers earned their entreaties a lukewarm if not hostile reception, and police unions have existed outside the mainstream union movement ever since.

To this day, there's little solidarity between police and the traditional labor movement. When Wisconsin Governor Scott Walker decided to bust public-employee unions, for example, police and fire were exempted. Same here in Texas.

Beto's campaign might have pointed out that, in Austin, progressive activists recently engaged in a bitter, year-and-a-half fight over the capital city's police contract, and the terms of debate were as much about economics as social justice debates. Indeed, according to movement leaders, focusing on limiting officer wage growth earned advocates a seat at tables to which they otherwise wouldn't have been invited. The final contract that replaced one voted down by Council freed up about $10 million per year for the city to spend on other stuff.

In the December episode of Just Liberty's Reasonably Suspicious podcast, I sat down with the two lead union negotiators for Austin's police contract, Ron DeLord and Chris Perkins, and Chas Moore, the leader of the Austin Justice Coalition, who led the reform campaign. Here's the audio from our full conversation.

Campaign Zero co-founder Sam Sinyangwe with
Austin Justice Coalition co-founder Chas Moore

Moore, who is one of a new crop of impressive, young Texas civil-rights leaders, was quite open about how AJC used the economic issues that concerned O'Rourke as a city council member to garner support for justice reforms about which city officials wouldn't otherwise have cared. He told me:

I don't think a lot of activists or organizers would like this, but I think ... So what we wanted to do was win, right? We didn't care if you cared about our issue or our cause, we wanted to win. And we knew in order to win, the best way was to talk about money. Right? I agree 110 percent with Ron on that. All but ... one, maybe two council members cared about the transparency and accountability. But for the most part, out of that 11-0, vote, most of those people probably cared about money. 

Instead of talking about, "stop killing unarmed black people and stop mistreating people," we just had to talk about the money, and that's how we get the strange bed fellows of Sierra Club and Save Our Springs and ... All these things that really didn't make sense when you talk about it. 

We had the Parks people come out and talk about, "don't pay the cops." ... For us, it was like "what's the road to win," right? That was a huge part of it. Something we agree with. But that's not the most important thing for, at least my organization. We do care more about the transparency and accountability.

The money factor, which is equally important, was the most important to the people that ultimately made that decision.

Police unions and Movement for Black Lives activists like Moore are natural enemies, even if in Austin they were able to communicate well enough to negotiate, and even sit in Grits dining room for a post-mortem after the fight is over.

Similarly, the police union playbook for how to react when wage demands are refused or their members engage in misconduct can make them natural enemies of city councils as well. Their approach is to wrap themselves in the flag, find someone to blame, then aggressively attack, all the time. It usually works. But it's not a make-friends-and-influence-people kind of approach. It's a power-concedes-nothing-without-a-demand approach, as DeLord remarked, quoting Frederick Douglass.

DeLord's not joking when he quotes Douglass. He was a rabble-rousing police-union innovator in his youth, adopting confrontation tactics first developed to empower the poorest of the poor, but using them on behalf of the armed agents of the state. Today, his books are treated as textbooks among the English-speaking police-union movement globally, exporting those approaches to great effect.

O'Rourke appears to have received the full-blown, Saul-Alinsky-inspired police-union bullying experience, and it left him questioning how much value exists in having cops as the only strong labor interest among public employees in a right-to-work-for-less state like Texas. I don't blame him for that. Spend much time on these issues on any side but theirs, and those questions naturally present themselves.

Grits doesn't begrudge police-union leaders trying to get the most for their members. But as evidenced by the lingering bitterness of a potential Presidential contender at the uber-hostile, Alinskyite tactics he was subjected to, their approach can make enemies. That can come back to haunt you. When you're a bully, payback's a bee-yach.

Finally, fwiw, Grits considers Beto O'Rourke a more attractive U.S. Senate candidate in 2020 than a presidential contender. That's in part because I've wondered about his ability to manage complex institutions of government, and in part because, as a senate candidate, I think he'd help make the whole Democratic ticket competitive in Texas. (Our Texas pols seem to behave more responsibly when they're worried about general elections instead of primaries.)

On the first part - managing institutions - though only a small glimpse at his record, this episode reported by The Intercept does give me some small confidence that he would embrace his responsibilities as a manager of government, separate and apart from political and ideological positions, and fight for the public interest zealously, even when it's hard. That's what those city-council-police-union fights are about.

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.

Special election-season podcast: Excerpts from Dallas DA debates; TX bail litigation update; ballot access for jail inmates; plus, conversations on forensics, racial disparities, and regulating 'robot brothels'

Check out a special, hour-long election-season episode of Just Liberty's Reasonably Suspicious podcast. As always, you can subscribe on iTunes, Google Play, or Soundcloud, or listen to it here:


I'm excited about this episode. It includes extended excerpts from a debate between Dallas District Attorney candidates which Just Liberty co-sponsored with a Dallas-area group called Evolve. They had a very interesting and sometimes contentious discussion. (I'll publish audio of the full, hour-and-a-half debate in a couple of days.)

Meanwhile, attorney Susanne Pringle provides the first, detailed update I've heard on the status of bail litigation in Texas in the wake of the 5th Circuit scaling back the Harris County injunction and a new injunction emerging in Dallas. Her organization, the Texas Fair Defense Project, is one of the groups representing plaintiffs in both the Harris and Dallas County litigation. If you care about this topic, give it a listen; no MSM source has yet tried to make sense of this clear-as-mud legal muddle.

Plus, another discussion of unreliable forensics, racial disparities in marijuana arrests, an effort to provide inmates ballot access in the Travis County Jail, and, of course, sex robots.

Here's this month's lineup:


Top Stories

• Houston's proposed robot-brothel ban

Special Report

• Excerpts from the Dallas County District Attorneys debate between Republican incumbent Faith Johnson and Democratic challenger John Creuzot, hosted by Evolve and Just Liberty.

Interview
Susanne Pringle from the Texas Fair Defense Project explains the status of Texas bail litigation and what legislative policy makers should take away from it so far.

Suspicious Mysteries
Probing reasons for differences behind racial disparity between DWI and marijuana arrests in Houston.

Forensic Focus

• Ballistics over-hyped in media coverage
• Junk science writ strikes again: child trauma edition

Interview

Conversation with Hope Doty, who's been spearheading an effort to secure ballot access for Travis County Jail inmates. (There are a couple of unfortunate audio glitches here - my apologies.)

The Last Hurrah

• Prospects for federal #cjreform
• Prison guard beat handcuffed inmate
• Governor Abbott endorses reduced pot penalties

Find a transcript of the podcast below the jump.

#cjreform implications of Texas Senate races

How might contested state-senate races in the November elections affect criminal-justice reform prospects in Texas?

Prospects for senate turnover
Alex Samuels at the Texas Tribune today reported news which has been widely understood in political circles for months - that as many as three Republican state senate districts could flip red-to-blue in a high-turnout, Democratic-wave election. Those seats are presently held by Konni Burton, Joan Huffman, and Don Huffines.

Samuels focused on the most obvious potential change: Because a supermajority is required to bring legislation to the floor, if they won those races, Democrats would suddenly have the power to block Republican bills when they vote as a bloc.

For criminal-justice reformers, though, the subject is more complex. For us, the problem isn't so much killing bad bills as how to pass good ones.

An imperiled champion
Sen. Konni Burton has been the most enthusiastic Republican senator when it comes to justice reform. She's been one of the senate's best Fourth Amendment champions, but her crowning #cjreform achievement IMO came with a 2015 amendment that adjusted Texas' property-theft thresholds upward, reducing the number of people picking up a felony charge. The result was to steadily depopulate Texas' "state jails," reorienting the system from incarceration to victim restitution at the local level and causing probation rolls to plummet.

If Burton were to exit the senate, it would make it more difficult for reformers to amend House bills in the eastern side of the capitol and to whip Republican support in the senate. She's not a policy expert, like Senators Whitmire or Huffman, but when Burton embraces an issue, she does so energetically, with zeal, and she doesn't quit or back down in the face of opposition. Those qualities matter, and will be difficult to replicate.

Notably, when your correspondent heard her speak the other night at a Northeast Tarrant County Tea Party meeting, Burton suggested that her criminal-justice-reform advocacy was benefiting her in her state senate race because, in a 50/50 district, she had to appeal to swing voters and seek Democratic crossover votes. That meant she'd found herself frequently campaigning among minority neighborhoods and community groups in her district, she said, and she told the Tea Party folks that her record on #cjreform had proven to be an asset on the campaign trail when trying to reach those voters.

Gatekeeper could lose her post
By contrast, Sen. Joan Huffman has more often than not been an obstacle to criminal-justice reform in the upper chamber, with two caveats: 1) She has sometimes acquiesced in compromised versions of reform that still represented significant gains, and 2) the longer she's been in office, the more educated she's become about systemic problems, as evidenced by her vocal advocacy for mental-health funding. In the last couple of sessions, she has seemed more open to at least discussing problems and listening to proposed solutions.

Still, if Huffman were vanquished, the senate would lose its long-time tuff-on-crime gatekeeper. And there aren't other senators with much background on criminal-justice topics to make it obvious who might assume that role on the R side. Criminal Justice Committee Chairman John Whitmire, a Democrat, often dominates justice debates in the Senate because he's so much more knowledgeable on the topic than his colleagues. Sen. Huffman, a former prosecutor and judge who frequently carries law-enforcement messages and bills, has been his Republican counterweight.

If she was somehow dislodged from office, it would be a big change. That said, when she ran against the same Democratic opponent in 2014, Huffman beat her like she was owed money, so take Samuel's assessment of vulnerability with a grain of salt.

Senate remains a mixed bag
Sen. Huffines has been a relatively minor player on justice topics, promoting abolition of the Driver Responsibility surcharge and red-light cameras, but shying away from other #cjreform subjects.

So it's a mixed bag: Huffman's departure would shake things up, but other potential GOP gatekeepers aren't a big improvement, and losing Konni Burton would be damaging.

A champion arises?
The one bright spot in this otherwise hazy outlook in the senate is that the corrupt Carlos Uresti - who on #cjreform issues would have needed to become more active to qualify as "furniture" - will be gone, and appears likely to be replaced by former Congressman and 22-year Texas House member Pete Gallego.

Gallego, who has worked as both a prosecutor and a defense attorney, chaired the Criminal Jurisprudence Committee when I was Policy Director at the Innocence Project of Texas and was an important ally on many of the reforms passed while I was there. The bill that stands out most to me was Texas' junk-science writ, which he and Sen. John Whitmire pushed through successfully in 2013 before Gallego left to run for Congress. He was a mensch throughout the process, and as knowledgeable and thoughtful as any legislator I've worked with. He'll be an excellent addition to the senate from a #cjreform perspective, and a huge upgrade from his predecessor. UPDATE (9/18) Gallego was upset in this race by Bill Flores, so the seat flips from D to R, reinforcing Republican power in the upper chamber heading into election day.

The potential for volcanic eruption
None of these would amount to a sea change in the Texas Senate, even if all three of the vulnerable Republicans end up losing. But it would be a truly volcanic transformation if Dan Patrick lost the Lieutenant Governor's seat, and a recent poll showed him just a couple of points ahead of his Democratic opponent, Mike Collier. That would be a much more titanic shake-up, on many levels beyond just criminal justice, and would likely clear the way for more aggressive #cjreform legislation. If the blue wave goes that deep, one might expect Sharon Keller to lose her seat on the Court of Criminal Appeals as well, and for Attorney General Ken Paxton to at least be getting nervous on election night.

That would be unexpected, and I certainly wouldn't bet on it. (If Grits were in Vegas setting the betting line, I'd say Ted Cruz by four points, Dan Patrick by six.) But a lot about American politics is unexpected these days, and stranger things have happened.

Tarrant DA told pro-#cjreform Tea Party meeting there's no mass incarceration in Texas

Your correspondent spent yesterday evening at a meeting of the Northeast Tarrant County Tea Party on criminal-justice reform, featuring state Sen. Konni Burton and Rep. Matt Krause as the principle speakers.

The idea that a Tea Party group was focused on #cjreform after Labor Day in an election year really says a lot about the changing terms of debate surrounding crime and punishment in the Lone Star State, so I was pleased and gratified to join them.

Anyway, Tarrant County District Attorney Sharen Wilson was there seeking votes, along with a clutch of other candidates. During the question and answer session, she stood up to make a statement that deserves correction.

After mentioning that her Democratic opponent is running, in part, on a platform of "ending mass incarceration," Wilson declared that, in Texas, mass incarceration is "not a problem" because the state has closed seven prison units (really it's eight) and legislators like Burton and Krause are pro-reform. She also told the crowd that Texas' prison population has declined by 20 percent.

That's simply uninformed. In reality, along with our neighbors, Louisiana and Oklahoma, Texas remains the global epicenter for mass incarceration. The Bayou State has surpassed Texas with the nation's highest incarceration rate, with the Okies coming in second. (We still rank near the top.) But Texas still has by far the largest state-prison system. In fact, Texas even has more state prisoners than California, but with 30 percent less population than the Golden Bear.

Heck, the Harris County Jail is larger than 19 state prison systems! (Source.) The idea that Texas has no mass-incarceration problem borders on ludicrous.

Nor has our prison population declined by 20 percent from its peak. If it had, Texas' prison population would now be lower than California's. Rather, it's declined by about six percent, from a high of about 155k to around 146k today.

It's true we've closed eight prison units, but we started with 112, so there's still a long way to go!

That said, Texas' justice system has definitely shrunk. The proportion of Texans in prison, jail, on probation and on parole - what Grits has called the "subjugation rate" - has plummeted over the last decade from one in 22 people under control of the government to one in 41, putting us just below the national average. That's a 46 percent reduction!

But almost all of that decline came from the sliding number of probationers, with state-prisoner reductions coming in a distant second. Looking solely at those incarcerated, leaving aside community supervision, Texas' incarceration rates remain quite high and, in real numbers, our system is the biggest.

To give credit where it's due, by the way, Sen. Burton is largely responsible for that reduction in the subjugation rate. Her 2015 amendment increasing property-theft thresholds to track inflation began to depopulate the state jails and shed thousands from the probation rolls over just a few years. That resulted in substantially increased freedom across the state, in a fundamental sense. She has been a true and consistent ally of #cjreform efforts at the capitol.

Grits was excited to witness one of the state's largest Tea Party groups so ardently embracing justice reform. Both Burton and Krause seemed genuinely enthusiastic about a "limited government" approach to the justice system, and Krause, in particular, proved effective at burnishing the tenets of conservative ideology in support of the cause. I was also glad so many candidates, including Wilson, attended to seek the group's support at the same time they're discussing #cjreform issues. It helps to set a certain tone among the political class, which I appreciate.

Grits appreciated less the Tarrant County District Attorney pretending Texas has no need to confront mass incarceration. Everyone is entitled to their own opinion, but not their own facts.

Harris Sheriff's captain providing cover for Balch Springs shooter, the TX bail-reform roller coaster, and other stories

Here are a few odds and ends for Grits readers to chew on headed into the weekend:

Harris Sheriff's captain providing cover for Balch Springs shooter
A Harris County Sheriff's captain testified as an expert witness for the defense in the trial of Roy Oliver, the Balch Springs police officer who shot a fleeing, unarmed 9th grader to death in a nationally publicized episode that got Oliver fired and indicted. One wonders, does this mean we may expect the Harris County Sheriff's office to take a less strict view on when its officers may shoot at fleeing, unarmed suspects? The Dallas News reported that the Harris County Sheriff's captain, Jay Oliver Coons, "reviews use-of-force cases at the sheriff's department." Does Sheriff Ed Gonzalez agree that the shooting of Jordan Edwards was justified and it would be okay if his deputies did the same thing, or has his captain's testimony gone off the reservation? Inquiring minds want to know ...

Bail-reform roller coaster
August saw bail reform efforts take a gut-wrenching roller coaster ride. First, Gov. Greg Abbott joined legislative and judicial reformers in supporting bail reform, suggesting the bill be named after a murdered state trooper.  But then the Fifth Circuit Court of Appeals unexpectedly gutted the order governing Harris County bail policies, reneging on critiques of detention policies that discriminated based on defendants' wealth. Instead, they insisted that such discrimination is okay as long as defendants receive individualized hearings. That relieves some pressure on the Texas Legislature to pass bail reform, but does so just at the moment state leaders appeared to be reaching consensus on what bipartisan reforms might look like. Who knows where the issue goes from here?

Felony record not a bar to council candidacy
The Austin city clerk this week agreed that Lewis Conway, Jr., is eligible to run for office because, despite a quarter-century-old manslaughter conviction for stabbing to death a man who allegedly stole his drug stash. Conway is  now "off paper," having completed his parole requirements and regained his right to vote. The Texas Tribune reported that, "Conway's success Tuesday is unique for one big reason: He's a convicted felon." But "unique" is not the right word because in 2014, Bexar County elected a former drug dealer with a felony conviction as its District Attorney, so the precedent was already set. As with Conway, local officials and opposing candidates declined to challenge Nico Lahood's candidacy in a much higher-stakes race. Grits congratulates Conway on affirming that precedent, and I'm plesased he'll be on the ballot.

Management inattention to crime lab at Austin PD backfiring
Austin PD crime lab's DNA section may remain shuttered for many more years, judging by a report that the city may continue using an outside DNA lab through 2022. Although public debates and the local media have downplayed the culpability of APD managers, the unfortunate truth is that under the previous chief, Art Acevedo, the department largely ignored its civilian functions like crime-scene techs, victim services, and the crime lab. Instead, they focused every extra dollar on expanding the number of and pay going to officers on patrol. Just weeks after Acevedo left to take the reins at Houston PD, the crime lab debacle blew up under his successor's watch. Current Chief Brian Manley was one of Acevedo's commanders and has similarly prioritized budgets for sworn staff over improving the agency's civilian functions. Despite that, the city council could locate no other candidates to even consider; apparently Manley was the only qualified guy they could find. (There's no "Rooney Rule" for police chiefs; after Dallas hired a black woman as chief, for example, there clearly were no other minority candidates anywhere who might be worthy of consideration, hence Austin considered none [/sarcasm].) So I'm not surprised that officials expect the situation to linger on. APD hasn't prioritized its civilian functions in many years and it's hard to view Manley's hiring as anything more or less than an affirmation of the status quo.

DPS suggests closing license centers as long lines loom
As headlines continue about long lines at DPS driver license centers, the agency has suggested closing 87 smaller offices - many of which have only one employee and/or low customer volumes - in order to consolidate resources at the centers with long lines. That could be the right management move, but politically, Grits predicts it will be a non-starter. A few may be closed, but I'd be surprised if the number of closures reached double digits, much less 87. And anyway, closing small facilities won't solve the bigger problems exacerbating long lines at the DPS megacenters, which have more to do with legislative policy than agency-level logistics.

Junk science challenges proliferating
Many so-called "forensic sciences" are really non-scientific, subjective comparisons made by cops, not scientists, argued an editorial at The Legal Intelligencer. That was the reason Texas created a new form of habeas corpus writ - discussed recently in the Texas Tribune in the context of shaken-baby cases - to allow redress when the legal system bases convictions on junk science. The writ is also currently being used to challenge the validity of bite mark evidence as well as blood spatters, a topic Grits delved into in an interview with ProPublica reporter Pam Colloff (read her latest) for the podcast that will be out next week.  RELATED: Top ten junk forensic sciences challenged in Texas.

Cohen doesn't cotton to FIRST-STEP opposition
Check out Right on Crime Director Derek Cohen's rebuttal to U.S. Senator Tom Cotton regarding the latter man's opposition to the FIRST-STEP Act and sentencing reform. Wrote Cohen, "We started Right on Crime in 2010 to advance policies that protect both the taxpayer and their pocketbook, and the outcomes of no government program is above scrutiny. Prisons are a vital contributor to our public safety, but are only one of many tools is our toolbox." In recent days, we've seen President Trump first embrace the bill and then reportedly back off until after the election. From this remove, Grits can't tell who in D.C. is serious about reform or what chances it has in the current political environment. Whatever is the case now could change with the next presidential tweet. But I do know that reformers' opposition to the bill was ill-considered and based on partisan considerations, not #cjreform principles. Passing moderate bipartisan reform is clearly better than doing nothing, which is the alternative.