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

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

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

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

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

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

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

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

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

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

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

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

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

Harris County DA: Judges cannot consider health issues as part of pretrial release decisions.

We're still waiting for the Supreme Court of Texas to rule whether Governor Greg Abbott's executive order on COVID-related jail releases is valid (see Grits' writeup here).

In the meantime, though, Harris County District Attorney Kim Ogg has filed an "emergency motion" with the Texas Court of Criminal Appeals arguing that judges do not have authority under the Code of Criminal Procedure to consider "public health matters," including the risks associated with people catching the coronavirus in jail, when they make bail determinations. Her motion opined that:

A concern over COVID-19, and an extra-judicial desire to not “fill the jail up”, entered into Singleton’s bail determination. This was improper.  

Article 17.15 lacks a “catch-all” to permit consideration of public health matters, nor does any existing case law. In addition, nothing in this Court’s First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-007, permits a court to circumvent art. 17.15. 

The case involves a 31-year old black man named Timothy Singleton who allegedly pointed a gun at someone who allegedly owed him money and threatened to kill him if the man didn't pay. According to the DA's court filing, "Singleton has prior felony convictions for Assault—Family Member, Retaliation, Robbery, Credit Card Abuse, and Delivery of a Controlled Substance." The DA's office wanted a $50,000 bond set, which would mean he'd need to come up with $5,000 for a bail bondsman to be released pretrial.

Singleton's case has been touted widely in the local media and clearly the DA's office hopes to use it to set a precedent stopping judges from considering coronavirus-related issues altogether.

It's worth mentioning that bail is intended only to ensure the defendant shows up in court, it is not supposed to be a punishment. To that end, it's notable that, in fact, Mr. Singleton DID show back up to court so the DA could argue to raise his bail, making it a somewhat dubious claim that the bail amount was too low to get him to come back. (See the second update below)

Regardless of the merits of bail arguments in this particular case, Ogg's is a more regressive stance, even, than the governor's executive order, which did in fact include a catch-all for "health or medical" issues.

By filing this motion, the DA's office is seeking an arrest warrant for the bailed defendant. She quoted this passage from the CCP on that score:

Where it is made to appear by affidavit to a judge of the Court of Criminal Appeals, a justice of a court of appeals, or to a judge of the district or county court, that the bail taken in any case is insufficient in amount, or that the sureties are not good for the amount, or that the bond is for any reason defective or insufficient, such judge shall issue a warrant of arrest, and require of the defendant sufficient bond and security, according to the nature of the case.

I understand the DA's Office is used to getting its way on these matters, but the Code of Criminal Procedure gives judges the authority to call these shots, not her. The Court of Criminal Appeals, however, can overrule local magistrates (if Ogg's reading of the statute is correct - I am not an attorney). And considering the Government-Always-Wins faction of the court currently holds a solid five-member majority on that body, your correspondent fears they may use this opportunity to enact a sweeping precedent.

Attorney Emily Gerrick from the Texas Fair Defense Project pointed out via text that "it's so exceedingly clear that they are not at all worried about wealthy people who might be violent." That's exactly right. Kim Ogg obviously isn't worried about Singleton getting out if he has $5K to pay a bail bondsman. Only poor people should stay locked up pretrial, according to her logic (which incidentally, is similar to, if more regressive than, the governor's logic in his executive order).

This petition comes on the heels of the Texas Department of Criminal Justice announcing it will no longer accept new prison inmates from county jails. So if Ogg prevails and judges cannot consider health issues when determining pretrial release, Texas county jails may quickly find themselves in a full-blown crisis, unable to limit new incarceration due to the coronavirus on the front end and unable to ship people to prison once their cases have been adjudicated.

UPDATE: The Court of Criminal Appeals denied Ogg's motion, declaring she must first pursue it through the Court of Appeals before they would hear it. Thanks to Keri Blakinger for the heads up.

NUTHER UPDATE (4/16): I have been informed today that Mr. Singleton has allegedly engaged in an act of domestic violence (4/17: here's news coverage) while out on bail and is now on the lam. To be clear, I wasn't arguing whether this particular person should or shouldn't have been released. (I know nothing of the case beyond Kim Ogg's motion.) My main concern is what I consider an irresponsible argument from the DA that judges cannot consider health issues when assigning bail.

Coronavirus and Texas jails

Despite his protestations to the contrary, to this observer, Governor Abbott's emergency executive order regarding jail releases seems fairly transparently aimed at thwarting bail-reform efforts in Harris County. Abbott says his order focuses only on the severity of the crime alleged. But since it does nothing to prevent people accused of violent crimes from paying bail and walking free, as a practical matter his order reinforces the tenets of the cash-bail system. Those who can pay may liberate themselves from the threat of catching COVID-19 in the county jail; poor folks will remain at risk.

If litigated, most smart folks I've heard from think the governor's order exceeded his authority, in addition to making little practical sense. Regardless, federal court orders trump it. The bail litigation over felony defendants being spearheaded by Civil Rights Corps will be the deciding factor. Judge Lee Rosenthal has already told Harris County many felony defendants must be released and is considering the fate of thousands more. Grits' prediction: In the near term, she will call the shots and the governor must be satisfied with attempting to blame the George-W-Bush-appointed judge's decisions on Democrats.

Otherwise, no other counties' jail-pop reduction efforts that I've read about addressed violent crimes, and most focused solely on misdemeanors. So other than thumbing his nose at a federal judge, to me the order served little purpose besides grabbing some tuff-on-crime media coverage during a period when the press has decided the coronavirus is the only story worth covering.

If history is any guide, jails are ticking time bombs for spread of the virus. Advice from the Jail Standards Commission seems well meaning but won't prevent the disease from spreading once it gets inside any individual unit. Jailers are at as great a risk as the jailed. It's not practical to enact social separation, so once the virus gets in, jails could quickly become petri dishes filled with disease.

In the near term, several counties have been successful at using personal bonds to slightly reduce jail populations. And a dramatic crime reduction thanks to social distancing should help lower jail intake. On the other hand, courtroom activity has all but ground to a halt, with trials postponed possibly for months. So there's a risk that those inside who cannot afford to buy their way out will be trapped there if (and when) the virus breaches the bastille walls.

Perhaps the most useful advice from the Jail Standards Commission was for law-enforcement agencies to arrest fewer people in the first place. There are seven categories of Class B and A misdemeanors for which police officers already have the authority to issue citations instead of arresting people. But most agencies, from DPS to the smallest 2-man police department - have never availed themselves of that authority. One excellent outcome from all this would be for all agencies to adopt such policies. Abbott's order, however, remained mum on the subject.

Indeed, most Texas law-enforcement agencies continue to give officers discretion to arrest for Class C misdemeanors. For the most part, these folks are incarcerated in city jails which are unregulated by the Jail Standards Commission. While no media coverage I've seen has focused on city-run lockups, Grits considers them just as or more likely than county jails to become infested with the virus. Nobody pays much attention to these backwater entities - even advocates - and as they are completely lacking in transparency, there's no real way to monitor what goes on there until the day tragedy strikes.

Travis County suspended all active warrants for low-level offenses, which seems like another effective step other jurisdictions should copy. That goes double for all Class C warrants. Indeed, arguably municipal courts and justices of the peace should simply suspend all activities related to Class C misdemeanors for the foreseeable future. In the current environment, the juice simply isn't worth the squeeze.

For additional recommendations, Michele Deitch of UT's LBJ School has created a list of best practices every jail should be following.

In some ways, these debates could end up changing the entire paradigm surrounding decarceration debates. Before this episode, while advocates may have fantasized about jailers releasing entire classes of prisoners, in practice, that only happened one case at a time. Now, more systemic approaches are suddenly on the table. If and when prisoners and jailers begin dying, public officials, including the governor, will find themselves under pressure to do more than issue politicized, unconstitutional directives.

Blakinger: Myriad pandemic updates, conflicting accounts on intra-prison transports, and one happy story to cheer you up

Our pal Keri Blakinger offered up another excellent and much-appreciated email update while Grits' blog content ramps back up. I couldn't be more grateful, thanks Keri!

Hey Grits,

Guess what I had for breakfast? Actual grits. For the first time in my life. I always skipped grits days in the prison mess hall but now I bought a bunch for my pandemic pantry. They are surprisingly good!

I was pleased to see your update and welcome your imminent return to the blogosphere! Here is one more get well and come back soon email and update.

As I’m sure you’ve noticed, the world is falling apart. So I’ve included eight depressing virus-related items, one longer discussion of an uncovered issue, and one short happy thing!! You have to make it to the end for the happy thing, no cheating!

Depressing Items

1. As coronavirus began making its way across the country a few weeks ago, people suddenly realized: Prisons literally banned a lot of basic disease prevention measures. With a lot of pressure some of this has changed, but generally, as of a few weeks ago prisons across the country banned alcohol-based hand sanitizer, made social distancing impossible, and did not allow face masks. (Relatedly, this is a good Stateman story from a few weeks ago about supplies/prisons.) 
2. There are a lot of aging and medically needy prisoners. This is a thing you have, of course, written about. And it came up a lot in the Pack litigation. But now it could be extremely problematic for the prisons and jails that are about to be overwhelmed with an illness that particularly puts medically compromised and aging populations at risk.
3. Given all that, prisoners are suing TDCJ. The attorneys on the case are - of course! - Scott Medlock and Jeff Edwards. Their names should be familiar to Grits readers because of the air conditioning and hepatitis C lawsuits. FWIW, there are a lot of corona-related lawsuits out there across the country, but most of the ones I’ve seen seem to be about release. This one is about conditions; i.e., they’re asking for supplies like hand sanitizer and measures like social distancing, not arguing that they should get out.
4. Speaking of release, everyone from experts to advocates to law enforcement officials to editorial boards has been advocating for jail and prison releases as a way to minimize the spread behind bars. The exact mechanics vary but the Galveston jail population is down 20 percent, Travis County is down some 600 people, and Dallas County - where 20 inmates have tested positive - is down a few hundred.
5. In addition to f***ing up the jails, prisons, courts and every aspect of life in general, the coronavirus is f***ing up death. Specifically, the pandemic has forced Texas to postpone three execution dates and seems likely to force the state to call off more. It’s also slowing down litigation, investigations and clemency efforts, as well as delaying trials, hearings and argument. Maurice Chammah and I quote your beloved podcast co-host Amanda Marzullo in our coverage of it.
6. The state is actively fighting to keep people in jail. First, Ken Paxton - himself a felony arrestee out on personal bond - filed to intervene and prevent the possible release on personal bond of 4,000 Harris County inmates who he said would be able to “roam freely and commit more crimes during the ongoing COVID-19 pandemic.” Then, the governor stepped in and did an executive order banning use of personal bond for anyone with any current or prior violent charge. The misdemeanor judges here in Harris County DNGAF. The felony courts are a little more complicated, as Gabrielle Banks and frenemy Sinjin report.
7. Speaking of death, a lot of people are buying guns. Federal background checks for gun sales are way up over last month, Ted Oberg reported. This is exactly not at all surprising - though the fact that in Texas gun stores have stayed open and abortion clinics were closed seems to have raised some eyebrows.
8. We all know short-term fluctuations in crime aren’t necessarily indicative of anything, but FWIW crime is down. I guess it’s hard to burglarize when everybody is at home. But at the same time, police are worried about seeing an increase in child abuse and domestic violence in the coming weeks. (In Dallas, the CBS affiliate already reported that happening more than two weeks ago, and Houston Public Media wrote about it this week.) I’m sure that’s only one of many awful, terrible things to come. Sorry this is the world you’re coming back to Grits, things got fucked up while you were gone!

The Longer Discussion:

The Texas prison system was slow to give employees access to protective gear and to halt inmate transfers, both practices that officers and advocates worried would create health risks during a pandemic that has already made its way into the state prison system. (As of Sunday evening, 18 inmates and 25 TDCJ staff had tested positive and some 3,700 prisoners were on medical restriction.)

Typically, hundreds of prisoners across the state are moved around every day, and there are more than 200 transport officers whose jobs are dedicated to making that happen. Sometimes the moves are for medical reasons, but other times it’s for court appearances, in preparation for release, to go to a unit that offers a specific type of program. The moves - often in the wee hours of the night - are stressful for everyone involved, and typically involve being chained to another person and loaded onto the white prison buses zipping up and down I-45.

But in the era of social distancing, that poses a clear safety risk - both because of the forced proximity and because of the possibility of spreading disease across the system through asymptomatic carriers. TDCJ - like every other prison system in the country - has already cut off visitation and programming, as well as attorney visits and in-person parole board interviews. But the continued need for prisoner transports has been a source of some tension. 

Even after officials in late March said the agency had stopped all but medical transports, officers repeatedly said that wasn’t true. At one point, it broke out into a little spat on Facebook between the Texas Correctional Institute Facebook page, a group run by TDCJ officers involved in a nonprofit by the same name.

“Texas prisons are breeding grounds for spreading COVID-19 with non medical chain buses running daily and staff lacking proper PPE such as N95 mask,” Texas Correctional Institute (TCI) posted on March 26, linking to an article titled: “Could Prison System Contribute To Increased Spread of COVID-19?”

“You are wrong,” spokesman Jeremy Desel wrote in response. “There are only medically necessary transfers occurring along with intake from unaffected counties. There are also significant supplies of N-95.”

The TCI main page and numerous individual posters disputed that, as did several officers I interviewed. 

Later, when I called Desel about it for a story, he clarified: Almost all transports had ceased, but sometimes people have to be moved from one unit to another to make room for other medical-related transports. The officers I’ve talked to still say that’s understating what’s going on, and point out that the agency is still accepting new intakes from counties and out-of-state. For example, officials in Louisiana confirmed sending two people to Texas last weekend - and both are now in custody of TDCJ. 

So it appears that even as the governor was drafting an last weekend’s executive order for any travelers from Louisiana self-quarantine, Texas was taking in new inmates freshly transported from a part of the country with one of the highest coronavirus infection rates in the country. It’s unclear if they’re parole violators or if they were picked up by a local law enforcement entity before ending up in TDCJ.

In recent days, officers have confirmed that internal transfers are down significantly, but the allegation that too many happened for too long is not unique to Texas: Across the country, other prison systems - particularly the BOP - were seemingly reluctant to slow down internal moves, facing some criticism for it.

Another source of criticism for prison officials in Texas and elsewhere has been the reluctance to allow the use of masks - both by prisoners and staff.  In the federal system, some units have issued them to prisoners and in New York they’ve (as of last week) been allowed for corrections staff and some prisoners. In Nebraska, last week the agency mandated masks for employees (and the prison director posed in one to make the point). Here, officers and union leaders voiced concerns over the past week or so about the lack of access to masks, which many report they have were not permitted to wear at work. 

“We’re already 4,800 officers short, we can’t afford a mass exodus because they’re not provided PPE,” AFSCME Texas Corrections president Jeff Ormsby told me. “The CDC is recommending a mask anywhere you go now, but we should be letting the staff wear them in prison.”

Late Sunday, that changed. Now, all medically restricted prisoners and all agency staff will be issued cloth masks. And, prisoners at the garment factories are making more. 

On the one hand, this raises questions as to whether the agency could have acted sooner - but on the other hand, it’s hard to fathom what a really successful intervention might look like in a prison system. In the absolute best case scenario, meaningful social distancing is just not possible in most housing areas, and so many of the other mitigation efforts pose significant logistical challenges. So what’s next? The union is pushing for a systemwide lockdown. So far, I haven't heard any official support for that idea but with the pace of this news cycle - who knows.

The Good Thing

PAM COLLOFF HAS A HAPPY STORY. Everybody hearts Pam, and I especially heart her right now for providing a rare, rare moment of hope when everything seems to be on fire. I could go on but you’ve read enough words by now so here it is: Joe Bryan got out. ENJOY. Congrats to Pam, and welcome home to Joe.

Interview: Parsing the civil-rights lawsuit demanding Hepatitis C treatment for Texas prisoners

In last month's Reasonably Suspicious podcast, co-host Mandy Marzullo and I interviewed Texas civil-rights attorney Scott Medlock about his new lawsuit against the Texas prison system over the state's failure to treat inmates suffering from Hepatitis C. (See the original complaint here, and coverage from the Houston Chronicle.) Medlock first learned of the issue in a Grits for Breakfast blog post and filed the suit over the summer. Listen to the excerpted segment here, and find a transcript of our conversation below the jump:

Considering long DPS license-center lines and ballooning prison-healthcare costs at House Appropriations

The Texas House Appropriations Committee on Tuesday will consider two items this blog has covered quite a bit heading into session: Long lines at DPS driver's license centers, and prison healthcare costs. For any staffers reviewing in preparation for the hearing, here's some background on those two topics:

Reducing DPS License-Center Lines

In the Texas Senate, the conversation centered almost entirely around how much money the Legislature should spend to expand license-center capacity. But they should also be considering ways to reduce the number of people in line, whose volume is exacerbated by hundreds of thousands of people with suspended licenses trying to get legal. Here are some suggestions for tackling that problem:

• Senate Finance debate ignores policy solutions to excessive DPS license center lines
• How the Driver Responsibility surcharge contributes to long lines at DPS license centers
• Long DPS lines making costs of TX driver surcharges more apparent, outweigh revenue to trauma centers
• Texas DPS acknowledges short-staffed call center in budget request to reduce long license-center lines

Limiting Prison Healthcare Costs

Texas ranks near the bottom among states in per-prisoner healthcare spending. The state has under-funded prison healthcare for years, with increases over the last couple of sessions never quite making up for draconian cuts in prior sessions. Texas can't reasonably cut further. The only reliable way to reduce healthcare costs is to reduce the number of people incarcerated to whom the TDCJ is providing medical care.

• #txlege budget writers in denial on prison healthcare
• Guard understaffing just one reason the #txlege must reduce inmate populations and close more state prisons
• Texas' 'secret death penalty': inadequate prison healthcare

Guard understaffing just one reason the #txlege must reduce inmate populations and close more state prisons

Budget hawks at the Texas Legislature should be taking a close look at the state prison system this year. Without significant policy changes to take some of the stress off of the agency and its employees, the system is on the verge of crisis along several axes.

As the Texas Senate Finance Committee prepares to hear testimony today on the Texas Department of Criminal Justice's budget request, the Houston Chronicle's Keri Blakinger reported over the weekend that understaffing at several rural prison units is reaching crisis levels, with system-wide turnover approaching 30 percent. Overtime last year cost $80 million, the most ever spent, and overtime hours were nearly triple 2012 levels.

TDCJ is asking the Lege to solve the problems by raising salaries by $156 million. And salaries should be higher. But that wouldn't cause staff to magically appear in Kenedy or Hartley Counties, for example. There just aren't enough people there to entice with dangerous, low paying work. And if you're willing to move, there is dangerous, high paying work to be had in the oil fields. It's not hard to see why folks leave rural prison jobs as soon as they can find something else.

Grits has been harping on understaffing at rural units for years, and consider those prime candidates for closure. It's pretty easy to envision sentencing reduction packages for low-level drug offenses and probation reforms to reduce revocations that would let the Lege close several of these far-flung, understaffed units. I'm hoping we see some of those filed this session.

These days, lots of people want to reduce mass incarceration simply because it's the right thing to do, and your correspondent counts himself on that list. But even for policymakers who lack that predilection, there are strong arguments for reducing the size of Texas' prison system based in pragmatism and fiscal conservatism.

Guard understaffing is just one reason the Lege might want to reduce prison populations. Others are, in no particular order:

• Prison healthcare costs are skyrocketing: TDCJ says it needs $247 million to continue providing current levels of services. The draft Senate budget reduces prison healthcare by $1.3 million, while the House budget only gave them $160 million of what they need. Reduce the number of prisoners, reduce medical expenses.
• Maintenance costs rising: TDCJ has asked for $146 million in new maintenance spending this biennium. They're going to ask for another nine-figure maintenance bump next biennium, as well. Some units should be closed instead of repaired.
• A/C litigation may be tip of an iceberg: TDCJ agreed to install air conditioning at the Wallace Pack unit after federal litigation. But the standards the court set for heat sensitive inmates there are violated at other units, and it's likely the agency will be required to air condition more if not all units if other, related litigation succeeds. Reducing inmate populations before that happened would lessen the impact. (Ironically, paying for A/C would go a long way toward boosting staff retention.)
• Prisons are not hospitals: Many addicts and mentally-ill people should not be there. (I realize expanding Medicaid in Texas is a non-starter given the current statewide leadership, but that's the best public-safety strategy for dealing with those populations.) That observation leads us to ...
• Penalty reductions could free up money for treatment: Presently, treatment dollars are scarce and waiting lists for substance-abuse treatment are long. Reducing user-level drug possession to a Class A misdemeanor would free up nearly $200 million per biennium. A budget rider could designate that all savings certified from the change be spent on drug treatment.

Crime has been declining for a long time now, but Texas prisons remain full. That can change - we can reduce incarceration without reducing public safety - but it will require viewing the question through a policy lens, not just a budgetary one. Throwing more money at prisons without addressing policies that keep the prisons full will just kick the can down the road. Eventually, the Legislature must reduce incarceration. It would be better if they did so before understaffing flowers into a full-blown public safety crisis at remote, rural units that gets people killed.

#txlege budget writers in denial on prisoner health care

In its Legislative Appropriations Request, the Texas Department of Criminal Justice said it needs an additional $247 million in order to continue delivering inmate healthcare at current levels, and ideally would like tens of millions more to make salaries more competitive. In response, the initial Texas House budget authorized an additional $160 million, and the Senate budget cut medical care by $1.3 million, reported the Texas Tribune.

The House clearly came up with the $160 million number because that's the amount they're having to pay in TDCJ's "supplemental" budget, meaning the amount the Lege under-funded services during the last biennium. But that ignores to the extent to which under-funding led to denied services, and it also doesn't account for medical inflation. Bottom line: The Senate number is pure fantasy, and even the House budget under-funds medical services for prisoners, ensuring the Lege will face another large supplemental appropriations request in 2021 if they don't increase the appropriation before May.

This has been going on for so long, budget writers have run out of options. Every biennium, they must start by writing a nine-figure check to cover un-funded costs in TDCJ's healthcare budget. A few years ago, the Legislature tried to make prisoners' families pay for inmate healthcare, extracting money from their commissary accounts. But the fees didn't raise as much as projected, while prisoners deferring doctor visits for financial reasons led to higher overall costs because of a lack of preventive care. So we've been there, done that, got the t-shirt.

At this point, Texas prisons already operate on a bare-bones budget. It's a non-controversial fact of life that healthcare costs will continue to rise by nine-figure amounts every biennium without significant policy changes to reduce incarceration.

Whether or not legislative budget writers want to acknowledge it, the only reliable way to lower the medical-services line item at TDCJ beyond current, rock-bottom levels is to reduce the number of prisoners for whom the state must provide health care. If Texas wants to lock up more people than any other state in the union, state government must pay for medical care while those folks are incarcerated.

Texas voters think justice system rigged for the wealthy, NY Times reporting repeats forensics fail, pay to play in Harris County juvie appointments?, and other stories

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

State should end practice of letting untrained guards work in jails
Untrained jailers legally working on probation status at the privately managed Parker County Jail  were involved in the violent death of an inmate. Excellent story, go read it. The Texas Legislature should close the loophole allowing jailers to work in county jails before they've received training. They should have to fulfill training requirements before being put on the line, just like police officers must complete the police academy before being deployed in the field.

Texas voters think justice system rigged for the wealthy
Voters support bail reform, says a new poll, which also found that "90 percent of registered Texas voters are dissatisfied with the criminal justice system overall and 55 percent want a complete overhaul or major change." Further, "81 percent of Texas registered voters believe the wealthy enjoy substantially better outcomes in the criminal justice than poor and working-class people."

Pay to play in Harris juvie appointments?
The feds are investigating the Harris County juvenile justice system, zeroing in on potential "pay to play" relationships between criminal defense lawyers receiving appointments and judges receiving their campaign contributions. Readers may recall that just two judges in Harris County account for 20 percent of all juvenile commitments to Texas youth prisons.

NY Times reporter repeats HouChron failures in ballistics coverage
This New York Times story on ballistics matching made many of the exact same errors as did a Houston Chronicle story I'd criticized last month: Failing to acknowledge the lack of standards or any scientific basis for the practice. I commented on the article in a brief Twitter thread.

Charting new paths for District Attorney offices
Progressive District Attorneys elected around the country in the last couple of cycles are pioneering new approaches to reducing mass incarceration offices. For example:

• Boston's new DA Rachel Rollins will refuse to prosecute 15 different low-level offenses, including drug possession.
• Philadelphia DA Larry Krasner has pulled out of the Pennsylvania District Attorney's Association because they promote regressive policies at the legislature. As their largest member, that's a big financial blow.
• The Washington Post this weekend featured Nueces County DA Mark Gonzalez as representative of a new breed of reformer DAs.

One third of deaths in Illinois prisons were preventable with adequate healthcare

After following the issue of deaths-in-custody for many years, your correspondent believes lots more people die in Texas prisons from preventable ailments due to inadequate healthcare than are killed in the state's execution chamber. But because the system controls all information about healthcare, it's a difficult assertion to prove. In Illinois, litigation pushed the issue to the point where a federal court commissioned an independent expert to assess the situation. They found one-third of deaths in custody in that state were preventable with adequate healthcare. Here's the expert's report. IMO, a similar assessment in Texas would likely yield similar or worse results.

Podcast: Colloff on blood spatter, causes of long lines at DPS license centers, understaffing at rural prisons, and other stories

If you can get past a few bad puns in the intro, I think we've got a good show for you this time on the better-late-than-never August 2018 edition of the Reasonably Suspicious podcast, Just Liberty's monthly discussion of Texas criminal-justice politics and policy.


The segment I've been most looking forward to, of course, was the interview with Pamela Colloff, long-form journalist extraordinaire, who left Texas Monthly last year to write for ProPublica. We discussed her latest New York Times Magazine cover story about an apparent false conviction based on more-than-dubious blood-spatter evidence. (I'll publish my full interview with Colloff over the weekend.) But I was happy with the rest of the show, too. Here's what my co-host Mandy Marzullo, executive director of the Texas Defender Service, are discussing this month:

Top Stories

• Long lines at Texas DPS driver-license centers.
• Texas prison system can't keep rural prisons staffed.

Death and Texas

• Texas' junk-science writ revisiting dubious forensics in capital cases.

Interview:

• Scott Henson interviews Pam Colloff of ProPublica/New York Times Magazine on her latest feature on blood-spatter evidence and more.

The Last Hurrah

• Governor Abbott opposes red-light cameras.
• Healthcare funding beneath 'minimum standards,' say Texas prison docs.
• 5th Circuit scales back Harris bail-reform order.

One minor error I noticed when I was editing this together: I'd said during the Death and Texas segment that DPS licenses forensic hypnotists, when in fact it's the Texas Commission on Law Enforcement.

Find a transcript of the podcast below the jump.

TDCJ budget requests less money than needed to meet 'minimum standards'

UPDATED/Corrected. An earlier version of this post understated how much TDCJ proposed to spend on healthcare. It has been corrected throughout.

The Texas Department of Criminal Justice put out its Legislative Appropriations Request today, requesting $7.3 billion for the coming FY 2020-2021 biennium.

Grits will discuss the LAR more thoroughly later, but off the top wanted to point out the health-line item (see exceptional item  #6), and TDCJ's comments about what might happen if prisoner healthcare is not adequately funded.

The agency requested funding of $1.43 billion for inmate healthcare services over the next biennium. However, they informed the Legislature:

an estimated $247.2 million is required to bring the FY 2020-21 funding to the projected levels of expense incurred for the delivery of services currently provided. Funding less than this level, which takes into account the rising costs of health care, could require elimination of services. Mission critical hardware and software systems are well beyond their life cycle and are obsolete. Without these significant upgrades, university providers face serious threats of system failures and security breaches, compromising patient care and safety.

Overall, "According to university providers, additional funding of $281.3 million is critical to ensure effective overall quality of care within the system and deliver the level of services required by minimum standards."

That "minimum standards" comment is significant. University administrators have been telling the Legislature for years that the system was barely constitutional - "on a thin line," UTMB vice president Ben Raimer has said.

Now we learn that the funding to maintain a current level of service is more than quarter-billion dollars less than what university providers say they need to "deliver the level of services required by minimum standards." Well, the only minimum standards that apply to prison healthcare are constitutional standards set by the Supreme Court through federal lawsuits.

So these data imply Texas is spending significantly less what it would need to for prisoner healthcare to pass constitutional muster. I suppose Texas prison administrators and legislative budget writers figure, "We're in the 5th Circuit, let's roll the dice!"

Austin press coverage of police contract still sucks, and other stories

Here are a few odds and ends that deserve readers' attention even if I haven't had time to turn them into full, independent blog posts:

Austin press coverage of police contract still sucks
The Austin press continues its one-sided coverage of the City Council's rejection of the police-union contract, larding their articles with quotes from contract supporters and minimizing the views of critics without fully explaining them. In an Austin Chronicle story published yesterday, for example, contract supporters were given a platform for predicting doom while contract critics were dismissed as know-nothings (e.g., my wife was dubbed a "gadfly"). According to reporter Nina Hernandez, council members who voted against the contract (all of them) "hadn't exactly considered the consequences of their decision," though there's no sourcing, much less factual basis offered for that opinion. Later, appearing to contradict herself, she complained that the council was "suffering information overload," which hardly jibes with her earlier calumny that they hadn't sufficiently studied the topic.

The truth is, MSM reporters in Austin appear as a class to have misunderstood and misreported this entire debate from the get go. Ms. Hernandez now says she recognizes that, as one council member instructed her, "the Council's vote was more about the money" than the oversight piece (which means the press were the only ones in the room that night who didn't understand what they were watching). But no one in the local media is yet reporting on the most important implications of the scuttled contract: Freeing up around $10 million that the city council can spend in the current fiscal year over and above their current budget. How and when to spend that money is where the actual debate has moved at city hall, as well as among the activist players involved. But the press continues to flail, having missed the story and spun false narratives for so long that they don't now know how to begin to catch up. It's as though there's an almost willful decision by the local Austin press corps not to publicly report on what these debates are actually about.

Texas law mandates bad bodycam policies
Note to reporters who want to localize a story about police bodycams based on the Leadership Conference/Upturn recommendations, like this recent SA Express News story: Texas' law is the source of the most important bad practices, like letting officers accused of misconduct review video before they're questioned, or erecting barriers to accessing video under open records. Increasingly more departments, most recently Arlington and Plano, are purchasing body cameras for their officers. MORE: Here's a new academic piece on body cameras from Seth Stoughton for the to-read pile.

Private prison company gets rep on Windham task force
One of the governor's new appointees to Texas' task force on "Academic Credit and Industry Recognition" at the Windham School District (which operates educational programming at the Texas Department of Criminal Justice) works for a private prison company, reported the Longview News Journal.

Maybe time to tone down the 'war on cops' meme
The number of police officers killed in the line of duty in 2017 was the second lowest total in 50 years. While every death of an officer is a tragedy, this low total doesn't comport with the "war on cops" meme that's been prevalent for the last couple of years. Suicides and traffic deaths remain the more significant killers of sworn police officers.

Analyzing 2017 shootings by police
The new report from Mapping Police Violence is a must-read. By their count, 1,129 people were killed by police in America in 2017. MPV researchers "were able to identify officers in 534 cases. At least 43 had shot or killed someone before. 12 had multiple prior shootings." Also, "Most killings began with police responding to suspected non-violent offenses or cases where no crime was reported. 87 people were killed after police stopped them for a traffic violation." The number of those killed who were unarmed was 147. Notably, "Police recruits spend 7x as many hours training to shoot than they do training to de-escalate situations." FWIW, the Washington Post came up with a slightly lower number for Americans killed by police; Grits doesn't yet understand why the difference. It's remarkable that the number of people shot and killed by the government isn't tracked more closely than this in an official capacity. This should be a number we know.

Why long sentences matter
Too much of 2016 and 2017 was spent debating Prof. John Pfaff's position that long sentences weren't a significant driver of mass incarceration. He was wrong. This 17-minute podcast from the Urban Institute lays out the problem of too-long sentences and shows why reducing them is key to ending mass incarceration.

Healthcare spending reduces crime, violence
In the big picture, the observation from the Brookings Institute that health care spending prevents crime makes loads of sense. That's particularly true where health and crime specifically intersect - like drug abuse and mental illness, where treatment and related social-service supports can prevent crime both directly and indirectly. One study they cited "found that an increase in the number of treatment facilities causes a reduction in both violent and financially-motivated crime. This is likely due to a combination of forces: reducing drug abuse can reduce violent behavior that is caused by particular drugs, as well as property crimes like theft committed to fund an addiction. Reducing demand for illegal drugs might also reduce violence associated with the illegal drug trade."

Trump DOJ rescinds anti-debtors prison guidelines
The decision by the Trump DOJ to rescind guidance on minimizing debtors-prison practices was ill-conceived and a disappointment. But it was only ever guidance, and rescinding it in and of itself changes nothing. What has always mattered more is what state and particularly local actors choose to do on the ground, and that remains an open question. Texas legislators in 2017 took long-awaited first steps toward confronting the problem of arresting poor people over fines, but there's much more to be done. It remains to be seen whether - much like the push to reform asset forfeiture laws - movement conservatives continue to push for reform in spite of the Trump Administration staking out a more regressive agenda.

Reduce public-safety costs by diverting non-emergency 911 calls

CityLab has a story about a topic that's been on my mind lately, though I hadn't written anything yet: How to reduce 911 volume by weeding out non-emergency calls. Mostly on Grits we've discussed this in terms of time wasted on false alarms from private burglar alarm companies, which make up 10-12% of 911 calls and almost never result in arrests, even in the less than 1% of cases in which a burglary actually occurred. But there are other means, like diverting non-emergency medical situations from the emergency room, as discussed in the CityLab article. One might also suggest diversion programs for calls related to the mentally ill - right now we use the same tactics and personnel to respond whether the emergency involves a criminal or a patient.

911 is treated by the public as a one-size-fits-all solution to a multi-variate array of life problems. Whittling back its use would decrease demand for patrol services without harming public safety and relieve pressure on local budgets to constantly increase police staffing. Instead, departments could more thoughtfully deploy their officers and be less reactive, spending more money on detectives, crime labs, crime-scene techs, and other necessary functions that make it more likely crimes will be solved.

Tyler mayor to run B&B for racially profiled black men, and other stories

Blogging was slow last week but that doesn't mean there weren't quite a few items in the news which merited Grits readers' attention. Here are a few of them:

Medical neglect at TDCJ espied after prisoner death

Alton Rogers died of head trauma in an Amarillo prison unit about a year ago after his cellmate slammed his head into the concrete. But autopsy results and medical records revealed he was extremely malnourished and significant medical problems had long been neglected by TDCJ which also contributed to his death. The Intercept has excellent coverage of this story. 

Tyler mayor to run B&B for racially profiled black men

Heisman trophy winning running back Ricky Williams was stopped by cops in my hometown of Tyler earlier this month and questioned in an exchange caught on police dashcam. He'd been taking a walk around his hotel, where he was staying in order to attend an awards dinner for Earl Campbell's foundation, when a homeowner called the cops to report a black man had been standing near his back fence. In Tyler, this apparently will get three cops sent to the scene ASAP. Two of the officers recognized Williams before they stopped him. But the third did not and began to aggressively question him, even lying to him to try to get him to confess to a crime. He told Williams he knew "more than you think I know," including that Williams had been in a neighbor's backyard, not just walking past it. Williams didn't bite, but he did question whether this was a racially motivated stop. This spurred the other two officers, who by this time probably knew the encounter was about to end up online, to interject that this is how they'd treat anyone in this circumstance and try to defuse the situation. Later, Tyler's mayor Martin Hines reached out to the former Miami Dolphns star, offering to let Williams stay in his personal family home the next time he's in town. (“I even invited him to stay with my family when he’s here. We have a guest room he’s welcome to.”) Grits imagines the mayor similarly extends this offer to all black men in Tyler who feel they've been racially profiled by police, don't you think? No chance Williams only got that offer from a starstruck mayor because he's a celebrity and a famous Texas football player. Nah! That can't be it.

Expunge this

For those in and around Austin, the UT law school's Expunction Project will hold a couple of intake sessions next month. Go here for more information.

Austin gets new police monitor

I don't know the new Austin Police Monitor, but the last one, Margo Frasier, was the best we ever had. She made the most of what, on paper and in practice, is a weak and ineffectual office. But it possesses a bully-pulpit function that only works if the Monitor uses it. She did. Will her successor? That's the question lingering in my mind. We'll know soon enough.

Dallas pension fight further devolves

Talks over a pension deal in Dallas have completely broken down and the city may soon pull out of the pension fund and create a new one going forward. Police unions' scorched earth tactics probably will preclude additional negotiations (anybody who questions their demand for a bailout is immediately dubbed a liar, said to have "conned" officers, accused of hating the retirees, etc.), setting the stage for years of litigation that's in the best interest neither of taxpayers nor retirees. The likelihood that police pensions drive the state's second largest city into bankruptcy increased this week.

'New breed of prosecutors'

Freshly minted DAs in Austin and Houston were among those profiled in the Marshall Project item about reformer prosecutors elected on the same day as Donald Trump. I'm kind of surprised they didn't mention Nueces County, which was truly a race decided on reform issues. In Harris, the flip was more rooted in partisan shifts that also impacted the judiciary and other countywide offices.

Death decline

This item from Houstonia magazine credits better-quality lawyering for Texas having the lowest number of executions last year in two decades. And that's certainly part of it. Unmentioned, though, was a change in the law from 2015 which required prosecutors to notify the defense when they request an execution date from a judge. This additional notice has given the defense heretofore unavailable opportunities to challenge execution dates at the time they're requested, rather than find out later only when the judge issues an order based on an ex parte request. Some of those whose dates were delayed will still eventually be executed, but the change prevents some of the last-minute wrangling and postponements that historically surround such events, While the effect likely is short-term, that new law probably explains the dip in executions in 2016 better than broader macro factors like attorney quality.

Harris DA accused of withholding snitch deal, conflicting testimony

Attorneys from Baker Botts have alleged in filings to the Texas Court of Criminal Appeals that Harris County prosecutors engaged in misconduct in a capital murder case, failing to disclose that a key witness "had provided two separate and conflicting statements to police," as well as failing to "disclose a deal not to prosecute another prosecution witness in exchange for his testimony."

Reduce drug penalties, expand treatment, opportunities for addicts

Treatment, not incarceration, is key to reducing drug-related crime, wrote the executive director of Austin Recovery in a column calling for reducing penalties for low-level drug possession from a state-jail felony to a misdemeanor. "Lowering penalties for minor possession can save Texas more than $60 million – funds that can be used to decrease the waiting list for treatment and overdose prevention. Decreased penalties also mean that people with addiction still have the opportunities to achieve their full potential," she concluded.

Cowtown cop's disciplinary file secret

See an update from AP on the episode out of Fort Worth in which an officer arrested a black mother and daughter while verbally defending the white man who had allegedly assaulted her son. The story noted that disciplinary records for past incidents involving the officer are secret unless they resulted in a firing or suspension. That's a problem not just for public accountability but also for prosecutors. In cities which have adopted the state police and fire civil service code, prosecutors similarly lack access to "impeachment" information in disciplinary files of officers they put on the stand as witnesses, although they have a duty under the Michael Morton Act to disclose such information. The Legislature needs to plug this gap in the MMA, which puts prosecutors in a particularly rough spot.

Crime by the numbers

Vox took a deep dive into the new FBI crime statistics providing important context to the "American carnage" demagoguery emerging from the White House these days.