#Txlege should use savings from closed prison units to fund needed treatment services

The Texas Legislative Budge Board has "Recommended funding maintains correctional security operations, with a decrease totaling $148 million, primarily related to recent facility closures and 2020–21 repair/renovation projects."

Grits is glad for more prison closures, but it's a mistake simply to reduce the budget by the amount of those units' costs. TDCJ has significant unfilled needs that those savings should pay for. 

One of the biggest: The agency doesn't fund treatment service sufficiently so that thousands of people are approved for parole but must remain in prison until they complete any required treatment. TDCJ doesn't enroll them in treatment until after they're approved for parole.

At any given time, there are around 15,000 people in TDCJ who've already been paroled but can't be released until they've completed treatment. If TDCJ paid for treatment BEFORE people were approved for parole, when they're approved they could leave prison immediately. This would further reduce the prison population and allow even more units to be closed, resulting in even more savings down the line.

The $148 million savings projected would go a long way toward solving this issue, resulting in less incarceration and greater savings down the line. From a management perspective, it should be a no-brainer.

UPDATE: Just Liberty is walking around at the capitol promoting the idea of shifting money to fund these treatment services and to spend a little more on the prisoner food budget, which has been slashed in recent years. Here's the flyer we're distributing.

Texas leaders' budget direction for prison agency makes no sense

Texas state agencies have been asked to prepare budgets that include 5% cuts in light of reduced tax revenues thanks to the coronavirus and plunging oil prices, the Texas Tribune's Jolie McCullough reported on Twitter. The TDCJ Correctional Security division and UTMB Managed Correctional Healthcare are exempt from cuts, but "Other parts of TDCJ's budget though — like parole, education/training programs, drug treatment, executives — seemingly will have to be in proposed 5% cut."

This is exactly backwards from a wise management response. Most of Texas' prison costs stem from incarceration. In reality, slightly boosting parole and drug treatment funding could easily reduce incarceration in a big way, allowing the state to close more prison units and reduce spending on the agency's largest line item.

In particular, there are presently about 15,000 people locked up in TDCJ who have already been granted parole but haven't been afforded access to treatment services which they're required to complete before they're released. By spending money to let these folks complete treatment services before they're up for parole, the state could eliminate incarceration costs for them and close a half-dozen large units or more.

Moreover, treatment best practices dictate that they should receive services earlier, anyway - closer to the time when they were struggling with addiction in the free world. Making them wait till the end of their sentence is something that happens because TDCJ doesn't provide services at sufficient levels, not because it's the right thing to do.

Another option would be to let folks complete treatment services once they're out on parole. Thanks to the COVID lockdowns, many of these courses already are being taken via correspondence packets the prisoners complete in their cells. There's not much difference between that approach and letting them complete them in the free world and hand them in to their parole officers.

State leaders are basically saying to TDCJ: "You operate an inefficient system. So double down on the most inefficient part and cut spending on the parts that would save money for the state overall."

Honestly, at times like these, Grits can't help but wonder if state leaders actually want people locked up in prison longer than necessary, or if they just don't have a clue what they're doing. I suppose those two things are not mutually exclusive.

CCA passes on judging forensic hypnosis, paroled but still imprisoned, Ken Paxton's 'lonely and misguided' crusade, and other stories

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

On the absurdity of keeping 15k already-paroled prisoners in TDCJ so they can do treatment by correspondence

The Marshall Project's Beth Schwartzapfel has a story on an ongoing problem that's taken on new life in the coronavirus era: More than 15,000 Texas prisoners have already been paroled but can't leave prison because they haven't completed required treatment programming and the state underfunds it so badly there's a massive waiting list. This is pointless and stupid in the best of times, but at a moment when 1,299 TX prisoners have been diagnosed with COVID-19 and another 48,674 inmates are on precautionary lockdown because of the virus, it makes even less sense. According to the article, TDCJ has already stopped doing these treatment programs in person and has switched to correspondence courses where prisoners work on written packets in their cells. If that's the case, why not parole them and let them complete the packets at home?

Ken Paxton's 'lonely and misguided crusade' against Rosa Jimenez

Attorney General Ken Paxton won't drop his federal appeal in Rosa Jimenez's habeas corpus writ, even though DA Margaret Moore has finally, belatedly, acknowledged that the evidence used to convict her was flawed and she deserves a new trial. What a strange situation! Moore's position is hardly progressive. She insists she will retry Jimenez despite the fact that the forensics used to convict her was flawed and there was no other accusatory evidence in the case. But Paxton's position is nonsensical; a Statesman editorial dubbed it a "lonely and misguided crusade." All sides have briefed Judge Lee Yeakel, with Paxton arguing for maximum harshness. Her attorneys, by contrast, "urged Yeakel to allow Jimenez to leave prison on a personal recognizance bond while the appeal continues, arguing that COVID-19 puts her life at risk because she has stage 4 kidney disease." Grits has no idea what Paxton thinks he's trying to accomplish here. It's one of the weirdest legal postures I've seen a Texas AG take in the three decades I've been following state politics.

Man exonerated of drug charges after DNA evidence disproved faulty eyewitness testimony 

In Houston, James Harris has been exonerated of drug charges eleven years after his false conviction based on erroneous eyewitness identification. DNA testing finally exonerated him. Long-time Grits readers know that the Legislature enacted solid guidelines for how police conduct eyewitness identification procedures, but Texas courts have ruled that such testimony still can be used to convict even if police do not follow them. Harris was both more persistent than most people, pursuing the case for years after he got out of prison, and also incredibly lucky that DNA evidence, which is unavailable in most cases, was able to exonerate him. Most people who're falsely convicted under these circumstances have no way to clear their name.

CCA judges decline to judge forensic hypnosis

The Texas Court of Criminal Appeals declined to rule on the merits of forensic hypnosis in the case of Charles Don Flores. Instead, they said he could not use the state's junk-science writ to challenge his conviction, but did not articulate a reason why - classic outcome-oriented judging to uphold an execution from the Government-Always-Wins faction on the court. See their ruling, coverage from the Dallas Morning News, and prior Grits coverage of forensic hypnosis rounded up here.

COVID cases in Texas jails continue to skyrocket

As the number of state prisoners diagnosed with COVID continues to rise, so too does the number in county jails. As of Monday, 5/4, Texas jails were up to 980 inmates diagnosed with the virus, according to the Texas Commission on Jail Standards, up from 142 on April 17. That's a 590% increase in about 2-1/2 weeks. Harris County, which leads the state in inmates diagnosed with COVID at 449, just reported its first inmate death from the virus.

Overdoses spike nationally

Grits had mentioned earlier Travis and Williamson Counties had seen a spike in opiod overdoses. It turns out, the same is true nationwide, in part attributable to lack of access to treatment services thanks to the COVID shutdown. This article from The Daily Beast provides more detail.

'The Peter Parker Problem': With great (judicial) power comes great responsibility

What does that Spiderman story have to do with judges setting bail? From a psychological perspective, as it turns out, everything!

Since everyone is looking for diversions while American society shuts down over the coronavirus, here's an interesting article I read recently that merits Grits readers' attention. Check out "The Peter Parker Problem." The premise: After Peter failed to help police apprehend a criminal who ran right past him and later killed his uncle,

Peter is sure he caused his uncle’s death. Even though this seems natural, stop to consider whether it is. First, Peter emphasizes his agency in not stopping the thief. But what about the agency of the thief? The thief decided to rob Uncle Ben, the thief decided to kill Ben when the robbery went wrong, and the theif planned to make his money through theft. Second, Peter overweights the likelihood of the thief killing his uncle because it happened. But how was Peter to know, as the thief was running down the hall, that the thief would kill anyone, much less his uncle? There was no particular evidence of violence at the time, and thieves as a class are not automatically violent. Third, Peter’s sense of responsibility is amplified by proximity (“I was so close”)—he would feel differently if he had been far away in place and time (seeing the thief run away from a distance, for example, even if he could have caught the thief if he sprinted). Peter thinks about the tragedy in terms of simple, one-to-one causes (“If only I had stopped him”) rather than many-to-many or other problems (e.g., “If only we had better gun control”). He thinks about the cause in terms of choices (dispositionism—e.g., “If I only I had done something”) rather than situational factors that would be equally effective (“If only the elevator had been out of order, or if only Uncle Ben had gotten food poisoning last night and not gone out of the house today, or if only he had left five minutes later or five minutes earlier, or if only the thief had killed someone else or Uncle Ben had been killed by a different perp.”).

Santa Clara University law professor David Ball argues (citations omitted) that

Criminal law is rife with examples of this kind of “just in case” thinking. California prison officials denied medical parole to a quadriplegic man on the grounds that he posed a threat to public safety, just in case he were to “possibly use his vocal cords, which are not paralyzed, to order crimes, maybe attacks on state employees.” Police officers stopped and frisked hundreds of thousands of mostly black and brown people in New York just in case some of them had weapons, even though the overwhelming majority didn’t. The United States Supreme Court held that it was reasonable to strip search someone wrongly arrested on a bench warrant because he could have been smuggling drugs—just in case, that is, he anticipated both the clerical error and the timing of the enforcement of the bench warrant and secreted drugs in his rectum. A well-known law professor argued that we should allow torture just in case we come across a situation where we know that there is a bomb, we know that it is going to go off soon, we know that the person we’ve detained knows all about it and won’t tell us unless we torture him—but, despite knowing almost everything about the scheme, we just don’t know where the bomb is. (Sometimes the claims of safety risks, particularly in a carceral context, are even less developed.) And if these harms never arrive? We got lucky—this time.

This article confronts a question which has thwarted many a reformer, particularly related to pretrial detention and parole decisions: what if risk assessments by actors in the justice system are really "psychological, not actuarial? What if different decisions about these populations (and the differences in how we view them) are not based in different assessments of risk, but about the psychological heuristics we use to analyze them?"

The current system, argues Ball, doesn't so much assess risk as "invoke" it as an excuse to ignore other risks. For example, the risk that "Detainees get longer sentences, they plead guilty more often, they are at risk for violence in jails if they suffer from mental illnesses and, even if the case is dismissed, they suffer economic losses from foregone work during detention. Though these losses are substantial, they are less salient. It is harder to keep them front of mind."

The article explores experimental research by behavioral psychologists on regret and counterfactuals to provide a compelling case for what's really driving high rates of pretrial detention.

Good stuff. Give it a read.

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.

Meaty January episode of Reasonably Suspicious podcast: Hear federal judge scold Travis County DA; what's the remedy for school principal convicted based on junk science?; why DPS troopers' chase policy is a bad fit for urban policing, and more

Here's the January 2020 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted by me and Mandy Marzullo. We have a meaty, jam-packed show for you this month.


The Texas parole board is the last hope for Joe Bryan, the Bosque County school principal falsely convicted in 1985 based on erroneous blood-spatter testimony. Travis County DA Margaret Moore can't accept the results in an innocence case. And the Fifth Circuit Court of Appeals says Texas prison guards couldn't have known it was a problem to keep a prisoner naked sleeping in feces and urine for six days. (And really, how could anyone have guessed?)

Intro
Bail reform not responsible for alleged repeat-offender monkey in Galveston

Top Stories
Marijuana prosecutions in Texas declined by 2/3 since Legislature legalized hemp. Does anybody besides cops and prosecutors miss them? (2:20)

Home Court Disadvantage
This month, the cases highlighted found defendants and plaintiffs at extreme disadvantage:

• Joe Bryan (6:16): The Court of Criminal Appeals turned down the former school principal, who was the subject of a major New York Times Magazine/Pro Public investigation by Pam Colloff. Now, it's up to the parole board to free him, if it happens at all.
• Rosa Jimenez (10:10): Four different judges have found her innocent. But Margaret Moore and the Court of Criminal Appeals don't want her released. Hear audio from a disgruntled federal judge scolding the Travis County DA's office for their handling of this increasingly high-profile case.
• Trent Taylor (19:02): The Fifth Circuit won't hold TDCJ responsible for what they deemed deliberate indifference that put Mr. Taylor at risk of serious harm because the courts had never ruled that six days was too long to endure such conditions. Infuriating.

The Last Hurrah (25:49)

• DPS troopers' high-speed chase policies a poor fit for urban policing.
• Rejecting Reid technique no reason to criticize sex-crimes detective.
• Lege should rein in counties trying not to comply with jail investigations.

As always, I'll order a transcript and add it below the jump when it comes back. Until then, enjoy!

Parole policies the key to substantial prisoner reductions in Texas

The goal of cutting prison populations by 50 percent has been poo pooed by some as a pipe dream, but for Texas it seems conceivable.

As Grits has previously pointed out, the overall footprint of Texas' criminal justice system has declined significantly in recent years, with the proportion of people in prison, jail, on probation and on parole declining by a whopping 46 percent. In 2008, one in 22 Texas adults were in prison, jail, on probation or on parole; by 2018, that had declined to one in 41.

However, the number of people incarcerated in prison has remained stubbornly high, even though TDCJ releases about 45 percent of inmates every year.

Releases declining in tandem with number of new inmates
State officials vociferously deny it, but from the outside it appears as though parole decisions are made based less on individuals' risk to society, but as a means to keep TDCJ full enough to justify existing prisons without becoming overcrowded.

Here's the data. Before 2012, more prisoners entered TDCJ each year than were released, though not by many. In 2012, releases increased for just that one year (see this analysis for why), afterward marching down in tandem with the number of new "receives."

That's why this blog and allies pushed for prison closures as soon as new receives dipped in 2009 and 2010 (the first Texas prisons were closed in 2011). If prisons can't hold more people, the theory went, parole rates would have to keep up with "receives" to keep from violating the longstanding terms of the Ruiz settlement, the dictates of which have dominated TDCJ policy and culture for nearly four decades.

When new receives bumped back up in 2011 and 2012 (see here for an analysis of why), the parole board boosted parole rates significantly to keep numbers low enough to come in under prison capacity.

Even though the parole board doesn't admit its release decisions are dictated by prison capacity, preferring to pretend they're assessing individuals' cases on the merits, it appears to be true on its face. Since 2012, the numbers of new inmates and releases have been so close every year that it's difficult to imagine it's a coincidence.

The potential for large-scale prison population reductions
As of the end of FY 2018, 79,552 Texas prison inmates were eligible to be paroled, out of about 145,000 total incarcerated at that time, or about 55 percent. (Source, p. 17) So most offenders could be released right now if the parole board decided to do so.

The average age of prisoners incarcerated in the Texas Department of Criminal Justice is 35. However, at the end of FY 2018, 9,900 prisoners were more than 60 years old, and another 18,564 were between 51-60. (p. 4) These prisoners are the fastest growing age group at TDCJ, and a big cost driver, particularly because their health costs are 100 percent paid by state government, even for prisoners who would otherwise be eligible for Medicare.

Since being in prison significantly shortens life expectancy, for many of these prisoners, TDCJ must pay for nursing-home like accommodations and eventually, end-of-life costs, as well. This is not just an issue in Texas, but a significant problem nationally. In Texas, however, the cost issue is exacerbated by the recent federal court ruling that vulnerable inmates like the sick and elderly must be housed in units with air conditioning. (Yes, I know, technically, A/C is not required, but how else can the agency keep units below 88 degrees during Texas summers?)

These rising healthcare costs for seniors are a big reason why TDCJ's budget has continued to increase even after eight prison units have been closed: A growing number of the prisoners who remain cost much more to incarcerate than the "average" 35 year old.

How to do it
The governor appoints parole board members, and the Legislature cannot directly force them to increase parole rates. (The 2007 prison reforms successfully encouraged them to decrease revocation rates for technical violations, but those gains have maxxed out.) But they can indirectly do so by changing the criteria on which parole decisions are made.

A good start would be to look to the so-called "objective parole" law passed in Michigan in 2018. That legislation mandated that parole decisions be based on forward looking risk factors instead of unchangeable criteria like "nature of the crime." The Texas Public Policy Foundation endorsed such a measure earlier this year; see my Reasonably Suspicious podcast interview with TPPF's Marc Levin on the topic from July.

Grits has recommended other, additional methods for reducing incarceration levels, but none would have the impact of boosting parole rates.

Texas has successfully reduced the footprint of the justice system more than most people - even most policy makers - understand. But significantly reducing prison populations has been the toughest nut to crack. Even so, given that most Texas prisoners are eligible to be paroled today, it's not impossible to imagine that right sizing the prison system could be accomplished sooner than later.

Podcast: Texas bail reform litigation, demagoguery on crime in Houston, and Grits' contribution to new TDCJ Hep C litigation

Here's the September 2019 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted by Scott Henson and Amanda Marzullo. Special thanks to Scott Medlock, who's suing TDCJ over failure to adequately treat Hepatitis C. I didn't realize until he told me the idea from the suit originated from a Grits for Breakfast blog post several years ago! That's exciting. Here's this month's episode:


In this episode:

Top Stories

• Harris and Galveston County bail litigation - 1:40
• HPD Chief Art Acevedo demagogues on bail reform - 10:30
• Interview: Attorney Scott Medlock on TDCJ Hep C lawsuit - 14:45

Fill in the Blank

• TPPF on police union politics - 27:45
• Crime debates in Houston mayor's race - 32:45

The Last Hurrah (37:25)

• DPS stops patrols in Dallas
• Do Dallas police murder indictments signal changing attitudes?
• Oklahoma parole changes a model for Texas?

Find a transcript of this episode below the jump.

Why revocations from probation and parole make up nearly half of Texas prison admissions and what to do about it

Two recent reports on supervising people in the community post-conviction deserve Grits readers' attention:

From the Texas Public Policy Foundation, Marc Levin has a 10-point agenda on parole that's more aggressive than any decarceration proposal that conservative group has promoted before.

Meanwhile, the Council of State Governments issued an analysis of the proportion of prison admissions related to revoked probation and parole terms.

Let's look at the CSG report first, since it provides the lay of the land. They have state-specific pages for each jurisdiction; here's the one for Texas.

By their calculations, 47 percent of people entering Texas prisons in 2017 were revoked either from probation or parole - 36 percent from probation, 11 percent from parole.

My first thought was to double-check their math, so here's my calculations using verifiable, public sourcing.

In Texas, according to an annual TDCJ report to the legislature, probation revocations to prison in FY 2017 totaled 23,101; of that, 11,522 were for technical violations.

In FY 2017, according to the Board of Pardons and Paroles' Annual Statistical Report, 6,555 parolees were revoked; of those, 1,043 were for technical violations.

Combined, that's 29,656 people revoked from probation and parole combined in 2017; 12,565 of those were for technical violations only.

TDCJ admitted 65,278 total people that year, according to the TDCJ Annual Statistical Report.

So, by my math, that's 45% of TDCJ admissions from probation and parole revocations, not 47%, with 19% coming from technical violations alone. (According to their methodology appendix, they had trouble coming up with data on technical probation violations, which may account for some of the disparity.)

But that's nitpicking. The authors' point was to demonstrate that nearly half of prison admissions arise from supervision revocations, not new convictions. That is certainly true, which brings us to Marc Levin's TPPF policy brief on parole.

Whereas CSG aimed to identify the scope of the problem, Levin proposes reforms to reduce unnecessary supervision and revocations.

In Mr. Levin's ideal world, prisons would begin planning for reentry soon after a person is incarcerated and make sure all necessary treatment and programming has been completed by the time they're first eligible for parole. Moreover, he would have the parole board mainly assess risk to the public going forward, emphasizing behavior while in prison and participation in programming. By contrast, in Texas, one of the most common reasons for denial of parole is "nature of the offense," which cannot ever change.

He touts a Michigan statute, in particular, which limits the reasons parole can be denied to 11, mostly public-safety oriented items. (The references in this document are a treasure trove.)

Levin wants to ensure parole conditions are manageable and adjusted based on risk level, with lower-risk people receiving less supervision. He wants prisoners to get credit for "earned time," which in Texas is optional for the parole board to recognize (this provides scant incentive for program participation, cooperation on work details, etc.). He would reduce barriers to employment for parolees and stop the use of regressive zoning practices to restrict where parolees can live. (January Advisors just did a major analysis on this topic focused on Houston.)

Levin wants to alter how parole officers are evaluated, focusing on recidivism reduction. And finally, he wants some reentry duties currently performed by the justice system to be performed by nonprofits and other entities, which incidentally is what happened recently in Colorado with its community reinvestment program.

I'm glad to see people thinking more deeply both about how to measure the community-supervision elements of mass incarceration as well as how to better utilize those tools for reducing prison populations and preventing recidivism. Taken together, these two documents reaffirm many of the findings in an analysis published last year from the Columbia University Justice Lab titled, "Too Big to Succeed" (which also has informative footnotes), that gave recommendations for cutting the size of community corrections systems in half.

Do ankle monitors on parolees make anyone safer?

In response to episodes where two different parolees being supervised by ankle monitors reportedly committed murder, one of them allegedly killing three people, law enforcement officials in Houston have been blaming TDCJ for not notifying them more promptly that a potentially dangerous parolee wasn't being monitored. From the Houston Chronicle:

Harris County Sheriff Ed Gonzalez said the current system reveals communication gaps between TDCJ and local law enforcement. 

“There has to be a better way to identify those individuals that are parole violators who pose a serious threat to public safety,” said Gonzalez. 

Rodriguez’s case is not the only one in recent days that raised concerns about the monitoring of dangerous parolees. Earlier this month, parolee Garry Jenkins, 56, slipped out of his house after curfew — a violation that should have been detected by the ankle monitor that was a condition of his parole — and later allegedly stabbed his mother to death. Five days later, after being arrested for violating parole, he was charged with murder. 

Houston Police Chief Art Acevedo said the recent incidents highlighted the need to notify law enforcement of potential parole violations more quickly. 

“We need to come up with a process that’s almost instantaneous,” said Acevedo, who added that he wants to work with other departments around the area to create a regional task force dedicated to parole violations. 

Houston Police Officers Union President Joseph Gamaldi agreed. 

“We need to know when these monitors are … being cut off, so we can send people out there to look up these people and make sure they’re doing what they’re supposed to do,” Gamaldi said. “Three days is entirely too long before we know about it, that (someone) could get out there, do crimes and victimize people in our community.”

To the uninitiated, a call for "almost instantaneous" notification whenever parolees' ankle monitors raise a red flag surely sounds reasonable. But people in law enforcement circles - including IMO the officials making these comments - know it's complete bullshit.

In reality, ankle monitors are unreliable supervisors that create more problems than they solve. They exist because the idea sounds good in principle to the political class and is promoted aggressively by vendors, who've seen a big increase in market share. But in practice, if Houston PD began hunting down parole violators every time they (may have) absconded based on GPS data, they'd do almost nothing but that and still not make a dent in the problem they're trying to solve.

That's because ankle monitors have been plagued with false positive problems, to the point that they generate so much bad data as to be practically useless for supervision purposes.

In California, ankle monitors strapped to "high-risk" felons resulted in "agents [who] are drowning in a flood of meaningless data, masking alarms that could signal real danger." One expert told the LA Times in 2014:

"When these alerts are in the tens of thousands, it seems like an unwinnable situation," said Matthew DeMichele, a former researcher for the American Probation and Parole Assn. and coauthor of the Justice Department's guide on electronic monitoring. 

"In some ways, GPS vendors are selling law enforcement agencies, politicians, the public a false bag of goods," he said.

In Massachusetts, according to criminal-defense lawyer Daniel Capetta, "About 3,000 people are currently subject to electronic monitoring in Massachusetts. It has been reported that of these 3,000 GPS bracelets, there are approximately 1,800 alerts generated per day. In the overwhelming majority of these cases, there is no real problem."

In 2007 in Arizona, "140 offenders monitored that year experienced a total of 35,601 false alerts, due to problems such as low batteries or signals lost in dead zones." Of those, "The study group found 463 confirmed violations, meaning that false alerts outnumbered proven infractions by a 77-1 margin."

An essay from the Brookings Institute last year was titled, "Decades later, electronic monitoring of offenders is still prone to failure." Many GPS trackers are easily removed. They mainly exist to provide the public a false sense of security, a CYA backstop for probation and parole departments, and political cover for judges and/or parole boards making release decisions. 

By reducing available supervision resources thanks to spending so much time on false positives, however, arguably these devices harm public safety when used as widely as they are today. It would be even more harmful if HPD officers began spending lots of time tracking down parolees every time an anomalous blip shows up from their tracking device.

Not only can false positives make it hard to track actual evil-doers, they risk punishing innocent people because of technological glitches. Notably one of the inventors of an early GPS monitoring system now thinks they're used improperly and their functions could be shifted to smart phones. He also thinks companies that operate these services should be liable when they exacerbate public safety problems instead of improve them, characterizing their rent seeking posture coupled with a let-the-chips-fall-where-they-may attitude as a "negligent tort."

The same cost-benefit analysis related to ankle monitors applies to sending local police chasing after every parole absconder. According to the latest TDCJ Annual Statistical Report (2016), as of Aug. 31, 2016 (page 5), there were 12,883 parolees, out of 113,363, categorized as "pre-revocation, not in custody." Figure a fifth or so of those are in Houston. However, most of those pose nothing like the danger of the "mattress killer" parolee who allegedly went on a killing spree after cutting his ankle monitor. In fact, many of them just missed a meeting, will likely show up at the next one, and would not be revoked even if captured and brought in.

The truth is, even if TDCJ had notified them "instantaneously" in the recent cases, the Sheriff's Office wouldn't have followed up until a crime had been committed. The Associated Press reported that Harris County "deputies don’t necessarily search for parolees who have violated their terms of release and would only arrest those offenders they come across during the course of a patrol and run a background check."

The chief, sheriff, and police union have a mutual interest in hyping fear in an era of declining crime when law enforcement is making fewer arrests than any time in decades. They all have an interest in bigger budgets, more officers, and increased moral authority for themselves when the public sees them as protectors rather than incompetent bureaucrats.

So there's self-interest in their decision to ignore the problems with ankle monitors - even though their shortcomings are widely understood in law enforcement circles - and IMO it's that self interest we're seeing bubbling up in these comments. It's a win-win: deflects blame for local crimes onto TDCJ, and sets them up to look like champions of public safety when really the solutions suggested harm public safety thanks both to their politicized nature and extreme impracticality.

CCA: Parole board cannot be made to follow statutes

What a difference a year makes. In 2016, the Texas Court of Criminal Appeals unanimously ruled in Ex Parte Antonio Sepeda that habeas corpus writs were the "proper remedy" to compel the Texas Board of Pardons and Parole to comply with state statutes. Pero, no mas.

Now, five members of a sharply split court have decided to "disavow" that decision in Ex Parte Morris Johnson II, leaving no viable enforcement mechanism available when the parole board ignores its statutory duties.

Judge Elsa Alcala in a dissent summed up the import of this change: "Can the parole board disregard applicable statutes without any judicial oversight?," she asked rhetorically in the opening lines to her opinion before answering her own question: "After today's majority opinion, the answer to this question is 'Yes.'"

Judges Walker and Richardson filed a separate dissent suggesting a writ of mandamus was the right legal vehicle rather than a habeas corpus writ. That opinion details the argument that the Board has a clear "ministerial duty" to consider certain parole applications because of mandatory statutory procedure requirements. (Mandamus/habeas would not be appropriate, all agreed, if exercised in an area where the board has independent discretion over a decision, but four judges believed they could be obligated to comply with statutory duties.) Judge Newell dissented without giving a reason.

The majority opinion represented the views of the three members of the Government-Always-Wins faction, plus Judges Keel and Yeary to get to five. Two GAW members, Keasler and Hervey, offered a concurrence suggesting that the parole board could resolve the immediate issue itself without the court forcing it. They contended that the failure to consider the Mr. Johnson's parole application as envisioned by the statute fell within the board's discretion and did not implicate its "ministerial duties."

The details of the case were highly technical, involving a defendant with multiple concurrent and consecutive sentences and a parole board policy which delays when a second "consecutive" sentence starts for purposes of how long a "concurrent" sentence must run.

But the bigger question involved whether the parole board may be legally constrained by statutes in a way that's enforceable through the courts, or whether they are, in essence, above the law. For now, they remain above the law, at least as far as the state courts are concerned.

Declines in TX recidivism led by parole success

Texas' recidivism rates are declining, according to this publication from the Council of State Governments Justice Center. According to them, parole revocations are down 33 percent since 2007, re-incarceration rates are down 25 percent, and rearrest rates are down 6 percent.

Reduced parole revocations are clearly the biggest success (and account for a big chunk of the decline in re-incarceration, as well). The document attributes those reductions to Texas' landmark legislation in 2007 which "Enhanced the use of parole for people at a low risk of reoffending and expanded the capacity of treatment and diversion programs," and "Expanded the capacity of substance use treatment programs and the use of intermediate sanction facilities to divert people from prison."

By contrast, probation revocations remained high. That same 2007 legislation included grants which were supposed to "Incentiviz[e] counties to create progressive sanctioning models for effective responses on probation." Some supposedly did, but unlike on the parole side, it didn't result in reduced revocations. Grits believes that's in part because the grants weren't structured to reduce if the desired outcomes weren't achieved. They just became part of probation departments' baseline funding, not an "incentive" to change behavior.

If Texas could figure out how to reduce probation revocations to the same extent we have for parole, we could close quite a few more prisons and save taxpayers a small fortune.

RELATED: See Texas' official recidivism data from the Legislative Budget Board.

How journalists should (and shouldn't) cover parole, community supervision

Journalism surrounding parole is mostly myopic, regressive, and unenlightening. Tuff-on-crime demagogues have mastered the art of crowing over the details of an isolated case to claim that parole should never be granted to anyone, ever, while ignoring broader public safety trends. And too often, our journalist friends gobble it up and regurgitate such messages uncritically.

An example arises out of Houston where a parolee committed a murder after being released halfway through a 45 year sentence. A prosecutor told the press the parole board has "blood on their hands." And yet, in Texas and nationally, crime rates remain near historic lows* despite parole rates in Texas increasing over recent years.

The folks who point to a single, terrible crime committed by a parolee to criticize the process are hoping the public will miss the forest for the trees. The parole board makes its rulings on a massive scale, deciding tens of thousands of inmates' fates every year - dozens every workday. Parole board members are not soothsayers. It is impossible to guarantee that none of those released will commit new crimes. But in aggregate, crime has declined in Texas over most of the 21st century. So whatever policies they're using are working reasonably well from a public-safety standpoint. Parole rates in Texas are significantly higher than California, for example, but our recidivism rates are remarkably low compared to them and most other states, in large part because we incarcerate many low-risk offenders who would not be in prison elsewhere and who are unlikely to commit new crimes regardless. More restrictive parole policies that result in more of those folks being denied release do not promote public safety.

Instead of focusing only on the most salacious, high-profile cases, the better way to think about parole is as a system and to seek the best possible systemic outcomes. The details of one horrific murder may dominate the headlines for weeks, but an aggregate reduction in murders over time will get at most an in-passing mention, not sustained, focused coverage, even if many more people are affected by the story. Regardless, that sustained, aggregate reduction should drive public-policy goals.

So, with that introduction, I wanted to record links to a few recent expert assessments of needed reforms to probation and parole that take a systems approach instead of reinventing supervision around the failures in a single case. Legislators interested in maximizing public-safety benefits from community supervision would do well to heed their concerns, which extend beyond any individual case to focus on bettering the community weal overall.

• Harvard working group, "Toward an approach to community corrections for the 21st century."
• Vinnie Schiraldi and Bruce Western, "Want to shrink our prisons? Fix probation and parole."
• Michelle Phelps, "To fix the justice system, shrink and reform community supervision."
• Robina Institute: Profiles of parole revocations and a survey of releasing authorities.

The press and legislators have become accustomed to the cycle of outrage surrounding egregious violent crimes and figured out how to use it for their own advantage - to maximize clicks and scare voters, respectively. But if we really want to be "smart on crime," we'll need to move beyond those frames.

* The Atlantic last year ran a story questioning, "What caused the great crime decline in the US?" For those seeking answers to this surprisingly difficult question, see:

• Vox: 16 theories for why crime plummeted in the US
• Marshall Project: 10 (not entirely crazy) theories explaining the Great Crime Decline
• National Research Council: The Growth of Incarceration in the United States

Committee backs boosting programs to prevent recidivism

The section of the Texas House Corrections Committee interim report to the 84th Legislature on "recidivism" had some good elements, if not a groundbreaking analysis. Here are a few highlights:

First, it should be mentioned that Texas has among the lowest recidivism rates of any prison system, certainly among large states, in the United States. "Offenders released from prison in fiscal year 2011 had a rearrest rate of 46.5 percent, and a reincarceration rate of 21.4 percent within a three-year period," according to the report. Since in Texas one can be arrested for anything including Class C misdemeanors punishable only be fines, not jail time, many of those arrests are for petty stuff that may not really concern us from a safety perspective. Even so, that's a remarkably low rate; nationally, the rearrest rate is 67.8 percent. And our re-incarceration rate is also lower than the national average (55 percent within 5 years). Texas is one of a number of states where recidivism rates have been falling.

We've discussed before on Grits the reasons why, and it's not because we're doing such a great job of rehabilitating prisoners. Texas has the largest prison population among American states - greater even than California's whose civilian population is nearly half-again ours - and the reason is that we incarcerate more low-risk offenders who could be safely released than do other corrections systems where more rigorous cost-benefit analyses are applied to government activities.

At root, Texas' low recidivism rate mainly stems from the fact that we're over-incarcerating low-risk people to begin with - that many of those folks leaving prison were unlikely to have reoffended even if they'd remained free, and therefore they commit no new crimes when they get out, either. Reserving incarceration for people who pose a significant risk of harming others is a cost-benefit judgement at which the Texas system is not very good.

At present, Texas' system involves a great deal of churn on the low end, especially among drug users, with prisoners entering the system just long enough to receive a life-altering "felon" tag, maybe a prison tat or two and advice from career criminals on how not to get caught next time before being released. Then, on the back end, some elderly prisoners convicted of serious violent crimes are held too long after they no longer pose a big recidvism risk, with their healthcare costs driving up overall costs of incarceration. Both groups contribute to our low recidivism rates, but only because they wouldn't have committed more crimes whether incarcerated or not.

Among some of the good news in the report was the decline in parole revocations for technical violations, which is due mainly to 1) Texas' 2007 reforms, including the creation of intermediate sanctions facilities, and 2) the changing makeup of and decisions by the parole board to reduce incarceration modestly. "In 2006, the Board of Pardons and Paroles revoked over ten thousand offenders. In fiscal year 2015, that number was reduced to about 5500." By contrast, revocations for technical violations on the probation side remain high - about half of all probation revocations.

There's a good discussion in the report of in-prison programming and reentry support services which I won't replicate here but which may interest some readers. In the end, the committee recommended that, "Enhanced funding of Windham and correctional aftercare [for ex-prisoners who received drug and alcohol treatment] should be strongly considered next session." And they suggested that restrictions on occupational licenses for felons should  be reevaluated "to exclude those who have kept a clean record for a certain period of time."

Grits agrees with most of their observations about programming but would only caution to look at the recidivism data with big-picture nuance. If the Legislature stopped incarcerating low-risk offenders who're mainly imprisoned because they're drug addicts, for example, recidivism rates would likely go up over time. But that's only because a low-risk cadre has been removed and the remaining offenders are made up of predominantly higher-risk people. In the context of Texas' specific situation as it relates to over-incarceration, a rise in recidivism rates resulting from decarceration of low-risk offenders wouldn't be the worst thing in the world.

Previewing Texas Lege hearings on #CJReform next week

Next Monday and Tuesday will be full days at the capitol for criminal-justice reform topics, with three different committees holding hearings relevant to the subjects covered on this blog. The Legislative Reference Library helpfully compiled these background resources regarding the interim charges those panels will consider:

House Committee on Criminal Jurisprudence (May 16) 

Charge: Asset forfeiture

• SCOTUS Ruling Requires Relook at State Asset Forfeiture Laws, National Conference of State Legislatures, April 1, 2016
• Policing for Profit: The Abuse of Civil Asset Forfeiture, 2nd Edition, Institute for Justice, November 2015
• Civil Asset Forfeiture: Good Intentions Gone Awry and the Need for Reform, Heritage Foundation, April 20, 2015
• New Bill Would End Policing for Profit in New Mexico (HB560), American Civil Liberties Union, February 19, 2015
• Audit of the Assets Forfeiture Fund and Seized Asset Deposit Fund Annual Financial Statements Fiscal Year 2014, Office of the Inspector General, U.S. Department of Justice, January 2015
• FY2015 Asset Forfeiture Fund Reports to Congress, U.S. Department of Justice, 2015
• Asset Forfeiture in Texas: DPS and County Interactions, Office of Court Administration, December 2014
• "Reverse Robin Hood: The Tale of How Texas Law Enforcement Has Used Civil Asset Forfeiture to Take From Property Owners and Pad the Pockets of Local Government – the Righteous Hunt for Reform is On," 46 Texas Tech Law Review 1169 (Summer 2014)
• Taking Contraband Without Taking Our Liberties: Civil Asset Forfeiture Reform in Texas, Texas Public Policy Foundation, March 2014

House Committees on Corrections and Criminal Jurisprudence (Joint Hearing, May 17) 

Charge: Probation & parole - fees and revocations

• Resource Guide: Reforming the Assessment and Enforcement of Fines and Fees, United States Department of Justice, Office of Justice Programs, March 2016
• Probation Revocation and Its Causes: Profiles of State and Local Jurisdictions: Wharton and Matagorda Counties, Texas and Bell  County, Texas, University of Minnesota Law School, Robina Institute of Criminal Law and Criminal Justice, 2016
• Statewide Criminal and Juvenile Justice Recidivism and Revocation Rates, Legislative Budget Board, February 2015
• Examining Racial and Ethnic Disparities in Probation Revocation: Summary Findings and Implications from a Multisite Study (Includes Dallas County, Texas), Urban Institute, April 2014
• Cutting Edge Corrections: Using Technology to Improve Community Supervision in Texas, Texas Public Policy Foundation, April 2014
• Profiting From Probation: America's "Offender-Funded" Probation Industry, Human Rights Watch, February 2014
• Profiles in Probation Revocation: Examining the Legal Framework in 21 States, University of Minnesota Law School, Robina Institute of Criminal Law and Criminal Justice, 2014
• Safer, Smarter, and More Cost-Efficient Approaches to Reducing Crime in Texas, Texas Criminal Justice Coalition, February 2013
• A Framework to Improve How Fines, Fees, Restitution, and Child Support Are Assessed and Collected from People Convicted of Crimes, Council of State Governments Justice Center, Texas Office of Court Administration, March 2, 2009

Senate Committee on Criminal Justice  (May 17)

Charge 3: Reentry programs provided by TDCJ and the Windham School, including inmates in administrative segregation; Certified Peer Support Services; Darrington Seminary Program   

• Attorney General Lynch Releases Roadmap to Reentry: The Justice Department's Vision to Reduce Recidivism through Federal Reentry Reforms, U.S. Attorney General Loretta E. Lynch, April 25, 2016
• "States Examine Policies, Conditions for Solitary Confinement in Prisons," Interim News, House Research Organization, February 17, 2016
• "Darrington Seminary Graduates First Class of Ministers," Criminal Justice Connections, Texas Department of Criminal Justice, May/June 2015
• Statewide Criminal and Juvenile Justice Recidivism and Revocation Rates, Legislative Budget Board, February 2015
• Offender Reentry: Correctional Statistics, Reintegration into the Community, and Recidivism, Congressional Research Service, January 12, 2015
• "Solitary Confinement, Public Safety, and Recidivism," 47 University of Michigan Journal of Law Reform  495 (Winter 2014)
• Texas Department of Criminal Justice, Correctional Managed Health Care Committee, Windham School District, Board of Pardons and Paroles: Final Report with Legislative Action (Issue 2 - Reentry strategies), Sunset Advisory Commission, July 2013
• Interim Report to the 84th Legislature (Charge 1 - Review correctional facilities and procedures, reentry & parole), House Committee on Corrections, January 2015
• Reentry and Integration Division (Reentry resource guide, reentry articles and reports), Rehabilitation Programs Division, Peer Recovery Support Services, Texas Department of Criminal Justice

Charge 4: Pretrial diversion and treatment programs   

• Overincarceration of People with Mental Illness: Pretrial Diversion Across the Country and the Next Steps for Texas to Improve its Efforts and Increase Utilization, Texas Public Policy Foundation, June 2015
• Pretrial Diversion, National Conference of State Legislatures, May 13, 2015
• Smart Justice, Initiative Resources, Jail Diversion, National Association of Counties

Charge 5: Dissemination of bulk criminal records   

• Fourteenth Report Examining Reporting Compliance to the Texas Computerized Criminal History System, Texas Department of Public Safety, January 2016
• Survey of State Criminal History Information Systems, 2014, U.S. Department of Justice, Bureau of Justice Statistics, December 2015
• Interim Report to the 84th Legislature (Charge 3 - Sale of criminal histories), House Committee on Criminal Jurisprudence, January 2015
• Criminal Records in the Digital Age: A Review of Current Practices and Recommendations for Reform in Texas, William Wayne Justice Center for Public Interest Law, The University of Texas School of Law, March 2013
• Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses (Part IV/C, Bulk dissemination of records and state regulation of bulk dissemination), National Consumer Law Center, April 2012
• Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information, SEARCH, The National Consortium for Justice Information and Statistics, 2005
• Interim Report, 77th Legislature: Charge Three (Criminal records), Senate Committee on Criminal Justice, September 2000

Charge 6: Costs for family members to maintain contact with incarcerated family members    

• Screening Out Family Time: The For-Profit Video Visitation Industry in Prisons and Jails, Prison Policy Initiative, January 2015
• Video Visiting in Corrections: Benefits, Limitations, and Implementation Considerations, United States Department of Justice, National Institute of Corrections, December 2014
• Video Visitation: How Private Companies Push For Visits By Video and Families Pay the Price, Grassroots Leadership and Texas Criminal Justice Coalition, October 2014
• Study of the TDCJ Offender Visitation Policies, Texas Department of Criminal Justice, August 2014
• Please Deposit All of Your Money: Kickbacks, Rates, and Hidden Fees in the Jail Phone Industry, Prison Policy Initiative, May 2013
• "Prison Visitation Policies: A Fifty-State Survey," 32 Yale Law & Policy Review 149 (2013)
• Children of Incarcerated Parents, National Conference of State Legislatures, March 2009

Texas released 52% more violent offenders in 2014 than 2005

Texas prisons released 52 percent more prisoners convicted of violent offenses in FY 2014 than in FY 2005, according to the TDCJ annual statistical reports from those years. Comparing the number of people released in those two years we find:

TDCJ Releases 2005-2014:
Violent: 5,521 up
Property: 632 up
Drug: 2,756 down
Other: 2,612 up

In fact, in 2012 Texas released 69.4 percent more violent offenders than in 2005, so this is not a new trend, and it has coincided with a decline in the state's violent crime rates over the same period. (Go here for an hypothesis why releasing so many more "violent offenders" didn't increase crime.)

Perhaps Texas' example provides evidence that the act of pursuing "low hanging fruit" in the political arena can help change the political culture surrounding crime and punishment in ways that indirectly affect debates and policies about violent offenders. (The same thing can happen, Grits would argue, with "innocence" and capital advocacy.)

For example, Texas' legislative reforms in 2007 focused almost exclusively on nonviolent drug and property offenses, with updating property-theft thresholds in 2015 the only other significant decarceration reform in recent memory. Yet the number of violent offenders released annually from TDCJ went up more than 50 percent.

The makeup of the parole board didn't change much over this period and nothing in the '07 bill would have caused that. (There were elements aimed at reducing parole revocations, but they wouldn't have affected releases.) Instead, the political culture changed around crime and punishment and the board reacted.

And, it must be said, even with that increase, release rates remain low. Though people convicted of violent offenses make up the majority of Texas prison inmates, they constituted only 22.6 percent of 2014 releases.

Still, when it comes to state-level decarceration reforms, Grits disagrees with Fordham law prof John Pfaff's tactical assessment about whether to prioritize reducing incarceration for nonviolent offenses. To me, the only practical place to start in the legislative arena, particularly in a red state like Texas, is on issues where it's possible to secure bipartisan support. One can't extract blood from stone.

But he's right to point out that real, long-term decarceration solutions necessarily must eventually extend to people deemed "violent" offenders. Otherwise, growth in that nebulous category can easily swallow up any decarceration gains from nonviolent offenders. For example, look at some top-line data from TDCJ Annual Statistical Reports for 2005 and 2014 (latest available), during which time the overall prison population decreased by 1,852. Within that total, though, there was wide variation.

TDCJ On-hand:
Violent: 10,396 up
Property: 4,643 down
Drug: 5,679 down
Other: 1,299 up

Reductions achieved in property and drug offender totals were nearly entirely offset by the increased number of violent offenders, who as of Aug. 31, 2014 made up 55.6 percent of TDCJ's population totals.

Now let's look at only the new, incoming offenders in 2005 and 2014. With the number of new prison entries for property offenses nearly the same, the increase in new violent commitments entering Texas prisons in 2014 almost entirely offset the reduced number of new drug-offenders:

TDCJ Receives:
Violent: 3,616 up
Property: 212 up
Drug: 3,808 down
Other: 2,821 up

The difference is, violent offenders tend to have longer sentences, so the new violent offenders will take up prison space for more bed-years over time. TDCJ essentially soaked up another placement for a violent offense for every drug and property offender diverted.

So I agree with Pfaff's central insight but sometimes think his commentary overstates how much the political process can do to reduce incarceration of violent felons, especially in states like Texas which already don't have mandatory minimums. The parole board (appointed to six year terms by the governor) and commissioners they hire make release decisions and there's not much outsiders can do to affect them.

Pfaff's focus on sentence length ignores areas where sentencing reform can make a difference. Any offense shifted from felony to misdemeanor status eliminates the possibility of imprisonment and keeps entire categories of offenders from ever entering TDCJ. Those low-level offenses are disproportionately drug and property crimes, so changing them won't affect the "violent" numbers. But they're something the Lege can actually affect that would reduce incarceration in the near term. They can't do much about parole rates.

Political tactics aren't just about plugging numbers into an equation or model to maximize marginal results. There are too many flawed humans with weird, self-interested agendas involved, and too many institutions with narrow jurisdictions that can only affect parts of the problem. I don't blame a New York City-based law prof for issuing theories which fail to take into account Texas' particular institutions and their realms of control.

It's hard to argue, though, with Pfaff's call for reassessing how offenders are judged along the violent-nonviolent axis:

Pfaff added that the division of inmates into non-violent and violent is itself confusing and misleading. “Not all violent offenders are really all that violent, and not all non-violent are necessarily non-violent; it’s tricky to figure out who is who,” he said.

For example, Pfaff said, in New York state, burglars who break into a house when no one is home are still considered violent offenders. On the other hand, when Pfaff examined records of non-violent drug offenders, he found that many had a record of violent crimes from the past, or had physically harmed someone during the commission of their crimes.

Focusing on non-violent crime, then, is actually a somewhat arbitrary way to separate the incarcerated into good prisoners and bad prisoners—and to avoid dealing with the most pernicious ideology behind the incarceration binge.

“As long as we focus on non-violent people in prison,” Pfaff told Quartz, “it has the collateral consequence of suggesting we should just give up on the violent people, and that the violent people deserve whatever we do. And I’m not sure that’s entirely the right way to think about it. Violent people change, violent people age out of crime.”

That's right, but it's a far cry from what either the public or the political class believe at this particular historical moment. In the scheme of things, it wasn't very long ago that even recommending leniency for "nonviolent" offenders was a political nonstarter in this state and many others. That's easy to forget in the wake of the post-Ferguson focus on criminal justice reform in the last however-many months. Maybe there will be things possible going forward that in the past would have fallen outside the bounds of mainstream political debate. But it would be wrong to critique strategic and tactical decisions before that time based on what's possible going forward. Those are different things.

I don't think Pfaff's analysis changes much of Texas reformers' strategy in the near term, but it's a caution to enthusiastic decarceration advocates to adjust expectations. For the foreseeable future, the much-ballyhooed national #Cut50 campaign remains a pipe dream, certainly in Texas. Without significantly slashing the numbers of violent offenders, it's not possible to get close to that number.

Grits can't say how we'll get there, if, or when. But I do know that politics is the art of the possible. And decarceration won't happen if advocates ignore the things which are possible to focus on things which are not.

In the meantime, the good news is that, in Texas, the parole board already is releasing more violent offenders, anyway, and with violent crime dropping and the economy booming, it turned out no one noticed, cared, nor complained.

More on Pam Freeman indictments

The Houston Press followed up on the Pam Freeman indictment story.

Five new indictments for former parole commissioner Pamela Freeman

A reader emails to point out that former parole commissioner Pamela Freeman, who was indicted for record tampering in 2014 has five new felony charges out of Walker County, as evidenced by this screenshot:

Freeman was indicted based on allegations that she falsely claimed five inmates who were up for parole had declined to be interviewed regarding their possible release and all were denied. See prior Grits coverage.

Under the penal code, tampering with records is a Class A misdemeanor unless "the actor's intent is to defraud or harm another, in which event the offense is a state jail felony," which is the offense with which Freeman was charged in these latest cases.

The original case, for which attorney and former Congressman Craig Washington is her retained counsel, has been repeatedly reset, having last been scheduled to go to trial in January. As of this writing, Washington is not listed as the attorney of record in the new cases, indictments for which were handed down in February, even though his bar license should have been reinstated by now.

Paging my reporter friends: Somebody ought to get on this story.

Epilogue to "The Guy With the Knife": Jon Buice was granted parole. Again.

In a timely epilogue to the screening last week of “The Guy With the Knife” at the LBJ School of Public Affairs, news comes today that the subject of the film, Jon Buice, was just granted parole after 24 years in prison. Buice was convicted of murder in the high-profile case involving banker Paul Broussard in Houston. The 1991 crime involved an apparent gay-bashing by a group of 10 youth from The Woodlands, and mobilized the Houston gay community to advocate for equal rights and for investigation and prosecution of this crime.

While on the surface, the case against the 17-year old Buice seemed cut-and-dry, and the outrage about the gay-bashing seemed fully justified, a closer analysis of the case revealed that the realities of the crime and its aftermath were far murkier. In fact, some prominent members of Houston’s LGBT community, including Ray Hill (the producer of The Prison Show and the original proponent of the “gay bashing” theory of the case) and Maria Gonzalez (the head of Houston’s LGBT Caucus and a University of Houston professor) came to be among Buice’s biggest supporters. Hill later admitted that he fabricated the notion that this was a hate crime in order to put pressure on law enforcement officials to solve the case. And Gonzalez went from fighting to keep Buice locked up to becoming a staunch advocate for his release.

Two separate deeper dives into the case—one by journalism prof Michael Berryhill and the other by independent filmmaker Alison Armstrong, who spent eight years making her film--raised serious concerns about a number of previously unexplored issues. Buice’s guilt is not in question, but both investigations raise serious doubts that there was any underlying intention to target a gay person and that there was any intent to commit murder; rather, it seems much more likely that it was a fight by teens, intoxicated by drugs and alcohol, that got out of hand. Notably, Buice’s case was resolved with a plea bargain for a 45-year sentence, so many facts never had the opportunity to come out at a trial.

Two of the most damning indicators that this was a gay-bashing withered under closer inspection. For example, the media originally touted the fact that the perpetrators used a wooden board studded with nails to beat the victim, but no such item was ever found in the evidence locker and there was no proof or testimony such a weapon ever existed. Similarly, the victim was supposedly “gutted like a deer" with a huge knife, but the only weapon involved turned out to be a knife with a two-inch blade that was used to stab Broussard. The victim’s especially gory “injury” was in fact the result of his autopsy. Another revelation in the film had to do with the fact that the victim, Paul Broussard, was awake and conversant when EMS arrived on the scene, and that his transportation to the hospital and treatment by a doctor were severely delayed due to fears about possible exposure to AIDS, at a time when that disease had the city in a panic.

Perhaps the most troubling aspect of the case, though, had to do with a development in 2011 when Buice was originally granted parole after numerous set-offs. By all accounts, Buice was deeply repentant, and had been a model prisoner, earning several college degrees and becoming a peer educator at the Wynne Farm. But shortly after the Parole Board announced its parole decision, in the days before Buice was actually released but after there was political pushback to its decision, Buice was accused of having an “inappropriate relationship” with a female prison chaplain.

No evidence was ever produced showing that such an inappropriate relationship existed. And indeed, the only inappropriate behavior was on TDCJ’s part. In an extraordinarily brazen move that would likely have a chilling effect on the chaplaincy program in TDCJ were it better known, TDCJ installed video surveillance equipment in Chaplain Linda Hill’s office, capturing footage of all her private communications with inmates and staff alike during a two-week period.

Despite the fact that the video showed perfectly ordinary encounters between Buice and the chaplain, Buice’s parole decision was rescinded and he was placed in disciplinary segregation for some period of time. And officials at the agency fired Chaplain Linda Hill and slandered her reputation, making her collateral consequence in this campaign to ensure that Buice stayed behind bars. Hill’s personal nightmare has only worsened in the years since her unfair dismissal. Berryhill’s account fills out many more details of this sordid story.

While it is tempting to focus any discussion of the case on these irregularities and injustices, in many ways those case-specific details detract from the larger issues and lessons presented here. Maybe we need to look at this case as a story of what it means for a perpetrator of a violent crime to become rehabilitated, or for a community to forgive a person who has hurt them. Perhaps we ought to ask hard questions about when someone has been punished enough, and what further purpose it could serve to keep someone locked up beyond the time that anyone could reasonably think he is a danger to society. And finally, the case should cause us to ask how the justice system can be so easily manipulated, whether at the investigation, prosecution, or parole stage.

One hopes that this latest parole decision--by a parole panel with full information--is the final chapter in Buice’s case, and that there will be no further twists and turns. And one also hopes that there can be some healing for everyone involved in and hurt by this tragic case: for Paul Broussard’s family; for the gay community in Houston and beyond; for Jon Buice, his family, and supporters; and for Linda Hill, whose own story has scarcely begun to be told.

MORE: Kuff disagrees Buice has served enough time, for reasons he explained here in 2013.

Free film screening of "The Guy With the Knife" next Thursday evening

Those of you living in Texas in 1991 may remember the high profile case of Houston banker Paul Broussard, a gay man, who was killed in the Montrose neighborhood in an apparent hate crime.  The case galvanized the gay community, and local activist Ray Hill helped generate substantial media attention to the crime in an effort to identify and prosecute the killers.  Eventually, a group of teenagers from The Woodlands were charged in the crime.  One member of the group, a 17-year old named Jon Buice, was identified as "the guy with the knife" who actually stabbed Broussard.  While most of the teens received probation or relatively light sentences, Buice pleaded guilty and received a 45-year sentence in a plea bargain agreement.

Shortly after Buice was convicted, Ray Hill--the activist who helped put Buice in prison--befriended him and, over time, came to believe that this was not a hate crime at all.  Buice grew into a model inmate, obtained college degrees, and gained the support of many in the gay community as he went up for parole.  But the victim's family, spurred on by the efforts of Houston victims' advocate Andy Kahan, fought his release.  A positive parole vote was rescinded a few years ago following some intriguing twists and turns.

Canadian filmmaker Alison Armstrong has now made a compelling documentary about the case called "The Guy With the Knife."  The film, which has won awards at several film festivals, raises fascinating questions about the influence of the media in criminal cases, about how much punishment is enough, and about the nature of forgiveness.  And it presents unsettling information about injustices in the case that have not previously been brought to light.

The film is screening for free at the LBJ School of Public Affairs on Thursday, November 5, at 7 pm (doors open at 6:30 pm).  Admission is free, but you must register at this site, which has more details about the event.  Following the film, there will be a panel discussion moderated by LBJ senior lecturer Michele Deitch with filmmaker Alison Armstrong, journalism prof Michael Berryhill, and Houston LGBT activist Maria Gonzalez.  Some of the subjects from the film will also be in attendance.

RELATED: See Michael Berryhill's essay on this case from 2013.

Grits' note: This is the inaugural post from Michele Deitch, an attorney and senior lecturer at the UT-Austin LBJ School and another of the terrific new folks I've asked to join me writing on Grits. Michele's impressive depth of experience on criminal justice issues dates to her stint as a full-time monitor for the federal court in the Ruiz case, which means she's been at this even longer than me! At the Texas Legislature, Michele is a trusted voice both on juvie and prison condition issues. I'm grateful she's agreed to do this.