Fixing longstanding criminal-justice problems in a black-ink budget year

Comptroller Glenn Hegar gave the Texas Legislature some good news with a black-ink budget projection for the coming biennium, suggesting they may have more than $9 billion more to spend than in 2017. Some of that will go for Hurricane Harvey costs (thought the Rainy Day fund should also contribute to that), some will get gobbled up with increased costs for entitlement programs, and any school finance fix will almost certainly consume the lion's share of the rest.

But it's not inconceivable that the Texas Legislature could use some of that money to solve ongoing problems in the justice system. What might that look like? Here are some ideas Grits brainstormed; let me know in the comments if you think of others:

Eliminate the Driver Responsibility Surcharge: $300 million

Both Texas political parties and every politician under the Pink Dome you ask wishes the Driver Responsibility Surcharge weren't the law. But the program brings in roughly $300 million per year - half goes to the General Revenue fund, half goes to hospital trauma centers - and politically, the surcharge can't be repealed unless the state comes up with the money.

Raise the Age: $45 million

When the 85th Texas Legislature ended, Texas was one of seven states that prosecuted 17 year olds as adults. Today we're one of only four. There's a decent chance that, if the Lege doesn't change the law this year, we'll be the only one when the 87th Legislature convenes in 2021. The Legislative Budget Board estimated making the shift would cost $45 million during the first biennium of implementation, and $70 million per biennium after that, to send youth through juvenile corrections systems instead of the adult side. (There's some evidence these costs are overstated, under-estimating related savings.) The House has passed RTA legislation two sessions in a row, but senators and the Lt. Governor are unlikely to bite without a dedicated allocation in the budget.

Boost reentry funds: $30 million

Increasing funds to prisoners leaving TDCJ from $100 to $300 would cost ~$13 million per year, $26 million per biennium. Tack on another $4 million per biennium to make sure they have driver's licenses or ID cards when they hit the streets, and mandate that DPS issue them based on information provide by TDCJ. Neither of these were in the agency's appropriations request, but they should have been.

Crime labs: $8-10 million

The Legislature either needs to boost funding for crime labs by perhaps $8-10 million per biennium or start charging for services. The DPS LAR only asked for $5.8 million that was taken away from the agency in user fees. But that amount was insufficient to solve the months-long backlogs presently being experienced. Legislators should find out what would be needed to reduce backlogs to a reasonable period then fund DPS crime labs at THAT level. Or, alternatively, Grits supported the user fees the Governor rescinded in the interim and think they're a reasonable way to fund this service.

Prison costs soaring: Cuts needed

TDCJ's appropriations request asked for an increase of more than $700 million beyond what's already a $7.3 billion-with-a-b budget. The LAR suggests the agency needs $247 million over the next biennium to maintain current (low, perhaps even unconstitutional) standards for provision of inmate health care, and another $32 million for probationer treatment funds. They also asked for $156 million for staff raises and $146 million in facility repairs. These are not unreasonable requests, but Legislature should enact further decarceration reforms and close understaffed, rural prison units and those requiring costly repairs to pay for those requests and reduce upward cost pressures.

Indigent defense: Est. $10 million

Counties want the state to pay 100% of indigent defense costs. For reasons Grits has articulated previously, that's a specious and self-interested position that flies in the face of the traditional state-county roles in the justice system. That said, the state would benefit from additional, targeted investments in the indigent-defense system. They should prioritize Texas Indigent Defense Commission grants for public-defender officers, which are the most effective and efficient way to deliver legal services where they're needed most. They should finance a capital defender office to handle indigent death penalty cases. ($1 million per biennium.) They should boost funding for the Office of Capital and Forensic Writs. And they should take Judge Elsa Alcala's advice to fund counsel for indigent defendants filing habeas corpus writs related to ineffective assistance of counsel. Obviously, public-defender grants could be of any size, but $10 million added over the biennium to these priorities would make a big difference.

I didn't include an estimate for upgrades to mental-health services because a) I have no idea how to evaluate costs or need, and b) my sense is the state would be better off if these services were primarily utilized outside the justice system, breaking from past practices. But that's certainly another area in need of investment. And there are probably specific investments to reduce competency restoration waits and to better meet the mental-health needs of incarcerated people that deserved to make this list. The Lege could boost state investments well into the nine-figure range and it still wouldn't be enough.

Federal legislation boosts Raise-the-Age prospects in Texas

Texas is one of only four states which still charges 17 year olds as adults. But new federal legislation awaiting President Trump's signature will soon prevent the Lone Star State from housing 17-year olds in adult county jails, providing a big incentive to change their status to match 92% of other states and the federal government. The president is expected to sign the measure.

Dubbed the Juvenile Justice and Delinquency Prevention Act, the bill would force Texas to stop housing 17-year olds in adult jails within three years, with narrow exceptions for rural jails, if it wants to continue receiving federal funds, reported the Marshall Project:

earlier versions of the law contained a loophole: Juveniles charged as adults could be held in adult jails pretrial. As a result, according to a recent UCLA study, more than 32,000 youth spend time in adult facilities each year. 

The new bill would require that problem be fixed within three years, although it would still contain a “rural exception” letting jurisdictions with no juvenile detention facility hold kids in their adult jail for a period of a few hours while they await transportation elsewhere.

Unless the state opts out, any county with its own juvenile detention facility, in other words, within three years will be barred from housing 17-year olds in the county jail at all. Counties without a juvie-detention facility could only keep them there for a few hours, and still must keep youth separated by sight and sound from adults, as mandated by the Prison Rape Elimination Act.

Both Texas political parties have endorsed raising the age of adult criminal responsibility in their state party platforms. And the Texas House has approved such legislation each of the last two sessions. But Lt. Gov. Dan Patrick, Senate Criminal Justice Committee Chairman John Whitmire, and the state prosecutors association have so far have opposed the measure.

Those opponents have mainly pointed to the economic costs of raising the age as the main reason not to do so. Now that Texas may begin to lose federal funds if it doesn't change incarceration practices for 17-year olds, maybe this legislation will make it over the hump in 2019.

Related:

• Now in a dwindling minority, failure to raise the age creating problems for Texas all over
• Raise the age bill solves practical problem for sheriffs
• Crimes by 17-year olds plummeting; should they be charged as adults
• Poll: GOP primary voters support raise the age, decarceration bills

Clarification: This column was edited after publication to clarify that Texas only must comply with the new regulations if it wants to continue receiving federal funds through the program, which Congress just re-authorized at new, higher levels. Reported the Huffington Post, "Three states no longer implement the act’s requirements because they are too costly."

Now in a dwindling minority, failure to "Raise the Age" creating problems for Texas all over

The Missouri Legislature recently voted to raise the age of adult criminal responsibility from 17 to 18 years old, beginning January 1, 2021. That leaves Texas one of only four states nationally that still prosecutes 17-year olds as adults, despite the fact that an overwhelming majority of GOP primary voters (86%) support changing the policy. This is becoming embarrassing.

Quite a few stories you see on Grits are byproducts of Texas' backwards, minority-view policy on who is a juvenile.

For example, yesterday in a roundup I'd linked to a Dallas News story about the Youthful Offender Program at the Texas Department of Criminal Justice, which manages incarcerated youth younger than 18. After an adult inmate engaged in sexual relations with one of the youth, the warden and most of the staff were terminated and the entire program was moved to a unit in Huntsville, closer to central administration. This program - and the scandals that come with it - only exist because Texas has refused to "raise the age."

Similarly, Governor Abbott wants to treat 17 year olds as children for purposes of their parents' gun-storage requirements, but I'd described how the exact same logic may be used to support prosecuting 17-year olds as juveniles. Indeed, if Texas had already raised the age for purposes of prosecutions, it's likely the gun-storage rules would have been updated in the process.

We've also discussed county jails having to pay to meet federal PREA standards because they must enforce "sight and sound" barriers between 17 year olds and adult populations. The Legislature has balked at the fiscal note on raising the age, but failing to adopt the policy has created unfunded mandates for counties which are shouldered by the same taxpayers in the end.

And, of course, treating 17-year olds as adults created all sorts of problems with Texas' capital punishment scheme, given that US Supreme Court rulings treat them as juveniles.

There are so many areas where updating this one policy would resolve issues and remove glitches from various justice-system conundrums that are caused, at root, by treating 17-year olds as adults for some purposes and children for others.

Indeed, Grits has argued that raising the age from 17 to 18 merely moves Texas from a 19th to a 20th century policy. But in the 21st century, modern brain science has shown youthful brains continue to develop well after that. Society already treats older youth as children for many purposes - buying tobacco (18), alcohol (21), renting a car (25), staying on their parents' health insurance (26) - and there's no reason to think criminal prosecution necessarily should fall on the lowest end of that range.

Things are changing fast. When the Texas Legislature last convened, there were seven other states which still prosecuted 17-year olds as adults. After Missouri, there are three. 

Texas has made such great strides on the juvenile decarceration front, even if it has further to go. It's a shame that, nationally, this issue continues to paint the state as backward and excessively punitive. It's such a pointless stance, and on the ground is creating more problems and costs than it prevents.

Gov. Abbott: raise the age at which youth are considered children, but only for purposes of gun-storage rules (?)

In his plan to address school shootings, Texas Gov. Greg Abbott called on the Legislature to "to raise the age at which someone is considered a child from whom adult gun owners would have to secure their guns; Abbott wants to raise that one year to include 17-year-olds like the shooter at Santa Fe High School," reported the Austin Statesman.

Grits' thought: Isn't there a philosophical link between the Governor's proposal to consider 17 year olds "children" for purposes of gun ownership and the "raise the age" proposal to charge 17 year olds as juveniles instead of adults in criminal court?

If someone should be "considered a child" at 17 for purposes of access to firearms, can Texas really justify prosecuting 17-year olds as adults in other contexts?

After all, what is the nature of the developmental deficiency among 17-year olds that the governor thinks a birthday will fix? Why might one consider 17 year olds less than reliable when it comes to prioritizing firearms safety?

Why, it's for the same reason most states don't charge 17 year olds as adults when they commit crimes: The portions of their brains responsible for cognitive reasoning are less well developed than they will be when they are older. Or, in layman's terms, 17-year old youth are not yet as mature as adults.

Surely, if that's his position, the Governor should get behind raising "the age at which someone is considered a child" in general from 17 to 18, not just on this one, narrow, gun-safety provision.

Either 17-year olds are adults who're prepared for all of life's responsibilities, and the resulting consequences from not fulfilling them, or they're not.  And clearly Gov. Abbott doesn't believe Texans can rely upon 17-year olds to behave in a responsible fashion, or such a law wouldn't be necessary. (Indeed, most parents of a 17-year old would likely tell you themselves that their child isn't prepared to face the world on their own as an adult.)

Gov. Abbott's proposal challenges the legalistic pretense that 17-year olds can and should be expected to behave as responsible adults. But he should be consistent. If parents are still responsible for their children's 2nd Amendment rights at 17 because a 17-year old's cognitive reasoning is under-developed, surely it make little sense for the criminal-justice system to prosecute those same youth as adults when they break the law?

Gov. Abbott's arguments for raising the age in this narrow context highlight how inappropriate it can be to assign adult expectations to 17-year old actors. These are lessons state leaders must eventually embrace much more broadly, but journeys of a thousand miles always begin with first steps.

Raise-the-age opponents radically overstate 17-year olds' incarceration levels

The new head of the Texas Juvenile Justice Department opposes raise-the-age legislation - to increase the age at which youth can be prosecuted as adults from 17 to 18 - reported the Dallas Morning News, on pragmatic grounds. According to her, TJJD facilities are so dysfunctional that an influx of youth would "break" them. She estimated that the change would add 300-400 new youth inmates to understaffed Texas youth prisons.

This is such a brazen falsehood it's really hard to swallow! Looking at the most recent (2016) TDCJ Statistical Report, as of August 31, 2016, there were only 51 youths under age 18 housed in TDCJ (see p. 18 of the pdf; p. 8 of the document). Most of those were probably certified as adults, so the number of 17-year olds sentenced is even smaller.* Plus juvenile courts tend to use incarceration LESS than on the adult side, so that number would likely come down if 17-year olds are prosecuted in juvenile courts.

That influx could be easily handled by TJJD institutions with adequate budget support from the Lege - it's within the range of the year-to-year fluctuation on youth prison populations already. No big deal. Overall, offenses committed by 17-year olds tend to be similar to the caseloads of juvenile courts.

There would be some additional costs to the state budget, mostly for the added juvenile probation load. But for taxpayers, that would be offset because local county jails wouldn't have to be renovated to comply with juvenile detention standards under the Prison Rape Elimination Act to avoid costly civil litigation. The fact that the extra expense accrues to the county budget and not the state doesn't reduce its significance to taxpayers footing the bills.

Bottom line: There will be some additional cost for youthful offenders in the next few years, no matter what. The Legislature has tried to do the job on the cheap for too long. Eventually something had to give, which is what you saw at the Gainesville State School.

Grits has seen some insensible and overstated stances taken by raise-the-age opponents, who are becoming a little frantic as state after state amends their laws, leaving Texas increasingly isolated on this front. But overestimating the number of incarcerated 17-year olds by 600-800 percent is a little much. Let's at least please base this debate on real facts.

RELATED: Shifting youth to adult prisons puts Texas on the wrong side of history.

*The observation about youth certified as adults belongs to Lauren McGaughy, the Dallas News reporter who wrote the story, and was added after this post was first published.

Poll: GOP primary voters support raise-the-age, decarceration bills

Republican pollster Mike Baselice has released a memo with opinion poll results on several important criminal justice topics (poll here, coverage here), focusing especially on the views of Republican primary voters. For example, a whopping 86 percent of GOP primary voters reacted positively to this position on "raise the age" legislation approved on second reading yesterday by the Texas House:

Currently, 17-year-olds in Texas who are convicted of a crime are automatically placed in the adult justice system. Texas is one of only seven states to do this, even though 95% of 17 year-olds are arrested for nonviolent offenses. Hearing this, do you favor or oppose starting 17-year-olds in the juvenile justice system while giving a judge the discretion to move them to an adult system on a case-by-case basis?

On drug penalties, wrote Baselice, "Large majorities of respondents from the all voter (82%) and Republican primary voter (75%) samples favor making possession of a small amount of drugs among nonviolent people a misdemeanor instead of a felony."

See the complete polling memo for more details.

Declining juvie crime, post-'07 reforms, make raise-the-age bill practical, feasible

(UPDATE-4/20: The Texas House approved HB 122 by an 83-53 vote on second reading. MORE: And on to the senate with 92 votes on third reading.)

It's that time of the year at the Texas Legislature where everything moves so fast and the politics are so fluid that horse race coverage (what will or won't pass) is basically meaningless. Now is the time for observation and debate on these topics, not speculation and prediction. At this point, soothsaying is beyond the ken of even grizzled professionals when it comes to legislative outcomes. For the most part, for bills moving through the process, nobody really knows what will happen, or can know.

Indeed this time of the legislative session is less like a horse race and more like a rodeo - a danger-filled spectacle ruled by clowns. And as our friends in the rodeo like to say, there's never been a horse that can't be rode, never been a cowboy can't be throwed.

So, when one sees articles like this one from the Texas Tribune's Jonathan Silver depicting the demise of Raise the Age legislation in the senate before it's even had a vote in the House, one may take it with a grain of salt. This sort of coverage too often substitutes for actual reporting on the subject matter being debated and allows politicians to make everything about themselves instead of the issues underlying important legislation.

And to be clear, HB 122, the raise-the-age bill, is important legislation. Most parents of 17-year olds don't yet consider them adults, even if their government does. Texas is one of only six states which still treat 17 year olds as adults for purposes of prosecuting them (though not for purposes of buying cigarettes or alcohol, for example).

Through this debate, we're learning a lot more about the types and scope of juvenile crime. Texas Appleseed recently published a report analyzing arrests by age category to discover the impact of HB 122. They found that arrests of 17-year olds declined every year since 2012, and 87 percent of crimes committed by this cohort were nonviolent offenses - mainly marijuana possession and theft.

Of 17 year olds convicted of drug crimes, only 1.2 percent were for dealing - nearly all of them marijuana. In general, "The rates at which they are arrested along with the offenses for which they are booked resemble the rates and offenses for 16-year-olds; yet their different treatment leads to very different outcomes."

Arrest rates for 17 year olds overall are declining, said the report, from 70 arrests per 1,000 in 2013 to 58 per 1,000 in 2015. Texas arrested more than double the number of 17 year olds in 2008 compared to 2015.

Texas juvenile probation directors are split on the question of raising the age, with Harris County's opposing the bill but others, including in Dallas, more supportive. Nationally, most juvenile-justice professionals consider the lower age inappropriate and lamentable.

Appleseed made an argument which your correspondent has separately made in conversations about the bill: That juvenile reforms since 2007, along with declining juvenile crime, have quite capably set the stage for this reform:

In 2007, the Texas Legislature began a process of restructuring the juvenile justice system, passing the first of several bills and budget initiatives that would move youth out of ineffective and expensive state secure facilities and into community-based alternatives. The process resulted in a 61 percent decrease in juvenile arrests between 2007 & 2015. At the same time, funding was shifted away from state secure facilities and into juvenile probation. A 2015 report published by the Council of State Governments (CSG) showed that per capita funding for juvenile probation departments increased 68 percent between FY 2005 & FY 2012. 

The same CSG report concluded that while the news was generally good for Texas reforms – with youth rehabilitated locally showing better outcomes than those committed to state secure facilities – there was room for improvement in recidivism rates by targeting resources and services on youth most likely to reoffend. Specifically, CSG found that the counties the researchers studied failed to “effectively target…[juvenile probation] supervision resources and services on those youth most likely to reoffend.” Instead, counties continued to place youth at low risk of reoffending in services and programs that they didn’t need – likely contributing to higher re-offense rates. 

Taken together, the large reduction in arrests, increase in funding for juvenile probation, and findings from CSG showing more opportunity to effectively utilize state taxpayer dollars indicates that Texas’ juvenile system is well-poised to absorb 17-year-olds.

That pretty much coincides with my view. In 2007, Grits might have agreed that the state was ill-prepared to make this shift. Today, after a decade of juvie decarceration coupled with double digit declines in juvenile crime, the system seems much more capable of handling an influx of 17 year olds. That's especially true if counties can more “effectively target…supervision resources and services on those youth most likely to reoffend,” which they ought to be doing already, anyway.

Texans can go here to send their state legislators an email supporting HB 122. Get it done before Thursday, when legislators take a vote. Or else go here to find your state representative's office phone number and call them before Thursday to ask that they support the bill.

Whining counties, and defense lawyers, and prosecutors ...

While work and family obligations have intervened to disrupt regularly scheduled blogging, here are a few odds and ends which merit Grits' readers' attention.

Kerry Max Cook: Lawyer brown nosing Smith County DA blew deal
Michael Hall explores Kerry Max Cook's reasons for rejecting a deal which would have finally exonerated him of capital murder after nearly forty years, and why the Court of Criminal Appeals may overturn his conviction anyway. Great stuff as always from Mr. Hall. What a mess.

Nobody bought defense bar arguments vs. capital appellate defender
The push to create an appellate public defender for direct appeals in capital cases took an important step forward this week, with HB 1676 by James White (R-Woodville) approved unanimously without amendment out of the House Criminal Jurisprudence Committee. The SA Express News concurrently published an editorial decrying the small pool of private attorneys available for those cases. Readers may recall that, before the hearing, in an interview with Grits on the topic, the Texas Defender Service's Amanda Marzullo showed how woefully deficient most representation of indigent defendants in capital cases has been.

The hearing was a bit of a zoo. The private criminal defense bar woefully misread the room, showing up to push for a flawed "managed assigned counsel" system so their members wouldn't lose business. But since the principle reasons suggested for creating the system were that private attorneys' work product on capital direct appeals empirically was poor, unreliable, and often cut and pasted without any specific analysis related to the instant case, nobody on the committee seemed to be in a mood to oblige complaints that this work (maybe 6-8 cases a year) might instead go to a small, three person public defender office that would cost less for a superior product.

GOP alternative approach to drug abuse emerging
Notably, a recent article in National Review touts drug courts and community corrections as the correct, conservative path toward confronting opiod abuse. Here in Texas, HB 2398 (King) would take precisely that path, reducing penalties for user-level possession cases and using the savings in incarceration costs to pay for drug treatment and community supervision at the local level. There is emerging an alternative GOP approach to confronting drug abuse - pioneered by our friends in the Right on Crime crowd - in a way that supplies a path to recovery rather than punishing every soul who has succumbed to addiction with a felony conviction.

Reining in asset forfeiture abuses
It's Asset Forfeiture Reform Day in a House Criminal Jurisprudence subcommittee next Wednesday. This could be one of the more contentious debates of the session. A bipartisan reform coalition comes loaded for bear while one may expect a parade of police and prosecutors wailing and moaning at the thought of losing their favorite revenue stream/slush fund. (Whining is a theme of this roundup, one notices.) Grab popcorn and watch it online if you can't come: Should be a hoot.

Raise the Age
TPPF's Marc Levin makes the conservative case for Texas' raise-the-age legislation. From your mouth to John Whitmire's ear, my friend.

A disingenuous debate over unfunded mandates
Counties are using indigent defense as an example of "unfunded mandates" from state government for which they must pay. However, most of the increased caseloads experienced since the turn of the century stemmed from local decisions to prosecute less and less serious cases, even as crime fell. I'm open to debating the level of state contribution to indigent defense funding on its own merits, but Grits dislikes this phony baloney "unfunded mandate" debate. The FAR bigger unfunded mandate comes when DAs seek or judges order extremely long sentences for which state government must foot the bill. Note to counties: How about this deal? What if the state pays for indigent defense, and counties pay the cost to incarcerate every individual whom they convict and send to prison? It'll be an even swap of funding responsibilities. Why wouldn't they? Because the unfunded mandate in the state's direction is in reality much, much greater. Framed in that light, i.e., in light of reality, complaints of "unfunded mandates" from counties to me come off as disingenuous and whiny.

Texas not only state denying prosecutors access to police misconduct records
Texas is not the only state where records about police misconduct are concealed from prosecutors who have an obligation to disclose them to the defense. California is struggling with the same conundrum. Here, passage of the Michael Morton Act placed the issue in stark relief at cities which opted into the state civil service code (~70), an issue first raised publicly by Court of Criminal Appeals Judge Barbara Hervey. This situation spurred state Sen. Juan "Chuy" Hinojosa to file SB 783 to open those files up as is the case at hundreds of other law enforcement agencies around the state. For more background, see here.

Dead dogs, shot owners, greedy clerks, phony risks, and a 'seismic change in police interrogations'

Here are a few odds and ends that each merit their own blog posts, or at least they would if I weren't spending my days writing Just Liberty emails and action alerts. (E.g., go here to send your state rep an email asking them to sign on in support of Rep. Garnet Coleman's "Sandra Bland Act.") So while Grits is focused elsewhere, check out:

• Eva Ruth Moravec, Houston Chronicle: "Unarmed people hurt when Texas officers shot at dogs." Includes slide show of dogs shot by cops!
• And from Mike Ward, also in the Chron: "State budget writers say four prisons may now be up for closure." (Hurray!)
• HB 1258 is a terrible bill that would stop Texas courts from providing internet access to the most public of public records in the government's possession: courthouse files. The bill was heard in committee yesterday. The real reason clerks want to deny people access to records which are public under the open-courts doctrine (which insists access must not be impeded by unreasonable  financial barriers)? After you wade through all the BS being thrown up about phony baloney "risks and liabilities," the bottom line is, clerks presently charge $1 per page for copies and fear the revenue stream from subscriptions won't cover the loss.
• Here's a headline for which Grits has been waiting for years: "Lawmakers, judges square off against bail bondsmen in push to end cash bail for nonviolent offenders." Chairman John Whitmire is holding a press conference this afternoon on the bill.
• See Raise-the-Age arguments from the Justice Policy Institute and the Fort Worth Star-Telegram, and coverage of an advocacy day yesterday on the topic (where the missus spent her day) from the Dallas News.
• It turns out, the people most likely to discover wrongful convictions are the ones looking for them. Who'd have thought? Oh yeah, every innocence project affiliate in the country.
• In El Paso, the Public Defender caseload is rising.
• Brandon Garrett, The Baffler: "Trials and Errors: Inside the Great Forensic Science Boondoggle."
• Marshall Project: "The Seismic Change in Police Interrogations." This is huge news: The group that developed the Reid technique is no longer teaching it. (For more background on the Reid technique, see here, here, here, here, here, here, and here.) The Reid technique was developed after third-degree  tactics were outlawed in the wake of the Wickersham Commission in the '30s. By the 1940s, John Reid had famously developed an interrogation method deploying psychological instead of (as much) physical coercion, but attacking the same mental weak spots, and modern US interrogation techniques were  born. Most other nations' police use less accusatory, more fact-gathering-based interrogation methods, which produce just as many real convictions but fewer false ones.

Snacks to tide you over ...

Here are a few odds and ends which merit Grits readers' attention while your correspondent's is focused elsewhere:

• San Antonio is the poster child for how "police contracts shield officers from scrutiny and discipline."
• The Statesman has an extensive feature about black families giving their kids "The Talk" in the era of Black Lives Matter.
• See an argument in The Baptist Standard for raising the age of criminal responsibility from 17 to 18, as well as an editorial in the SA Express-News.
• Police agencies which failed to comply with the new law on reporting of shootings by their officers are belatedly starting to get their paperwork in, though there remains no penalty for noncompliance.
• The attorney representing Harris County in federal bail litigation is taking flack for claiming some jail inmates want to be locked up.
• See more stories about conservatives responding to Donald Trump's denunciation of asset forfeiture reform by vocally supporting the idea. Also, Dallas Observer coverage.
• There were protests at the Harris County Jail this week surrounding another questionable inmate death ruled a suicide by authorities.

More detail on raise-the-age proposal

An Austin Statesman story by Phillip Jankowski yesterday gave some details on Texas' 17-year old population which would be affected by "raise the age" legislation. Grits wanted to highlight and annotate a few fact bites from the story for future reference:

Texas is one of only seven states that continue to prosecute 17-year-olds as adults despite a Supreme Court ruling that marks the age of adulthood at 18. In 2015, that meant that about 22,000 teenagers who would have been prosecuted as juveniles in the majority of the United States. were instead tried as adults in Texas, according to data compiled by the Texas Criminal Justice Coalition.

The 22,000 number for 17-year olds arrested statewide (not "tried") is down from more than 46,000 in 2008, so crime by 17-year olds is already rapidly diminishing. Moreover, "About 87 percent of those arrests are for nonviolent offenses, including misdemeanor theft and possession of marijuana, which respectively were the top two most common charges filed against 17-year-olds, the data showed." So the volume which would be added to the system overall would be fairly small.

Jankowski included this discussion of how the bill would affect the juvenile system:

Upping the age of adult prosecution from 17 to 18 would no doubt have a large effect on Texas’ juvenile justice system because it would increase the number of juvenile arrests by 40 percent, from nearly 53,000 to about 75,000, according to data from the Texas Department of Public Safety.  (Ed. note: don't forget 87 percent of these new defendants are charged with nonviolent misdemeanors.)

Wu said the cost involved in increasing the capacity of local and state programs to accommodate more juveniles would be offset over time by reducing the amount of people in Texas’ prison system and by rehabilitating 17-year-olds who might reoffend under the current system because they lack of access to rehabilitation programs. 

“In the juvenile system, they would be eligible for more programs, like counseling and tutoring,” Wu said. “What we’re just saying is: Let’s give these kids a second chance,”

Economic analyses from other states confirms Wu's contention that making this shift saves money for the justice system long term, despite extra short-term expense.

On the flip side, doing nothing shifts costs of housing 17-year old defendants to Sheriffs and adult county jails. Smaller jails, in particular, have trouble meeting restrictions under the federal Prison Rape Elimination Act on housing 17-year olds within "sight and sound" of older inmates.

As a result, for example, Hays County spends about $150,000 extra per year to house 17-year olds. In Williamson County, they assign "a single corrections officer to a small amount of 17-year-old inmates while every other corrections officer oversees 48 adults, Sheriff Robert Chody said. When Chody spoke to the Statesman, they had four 17-year-old inmates in the jail."

In Travis County, where extra bed space allows them to more easily accommodate 17-year olds than smaller jails, "In 2016, 17-year-olds were booked into the jail 787 times, accounting for 11,520 “bed days” at a cost of roughly $725,000, according to the sheriff’s office." So 17-year olds were spending on average two weeks in jail per arrest.

There's a tendency in the press to focus on issues of fairness, or as the Randall County DA put it, on the fact that "17-year-olds can’t do anything as an adult except be tried as one." But as Grits frequently reminds my granddaughter, "fair is a place they judge pigs." The pragmatic arguments surrounding this proposal continue to be the best reason to do it.

See prior, related Grits posts:

• Time for Texas to 'Raise the Age' for adult crimes from 17 to 18
• Crime by 17-year olds plummeting: Should they be charged as adults
• Raise-the-age bill solves practical problem for Sheriffs
• Pragmatic arguments best for raise-the-age proposal

ALSO: Check out this analysis from the Texas House Research Organization describing pros and cons of the raise-the-age proposal.

Government doesn't know how many people it shoots, and other stories

Grits has a busy day today so let's round up a few items which might have made it into individual blog posts if I had more time.

Come Correct
Right on Crime published this blog post on the Texas House Corrections Committee's new interim report. See Grits coverage of that document here, here, and here.

Forfeiture target of property-rights push 
Efforts are ramping up on the right to require criminal convictions for asset forfeiture in Texas. See coverage from the Texas Observer,  Hot Air, the Dallas Observer, and Legal Insurrection. Go here to ask your Texas legislators to support these efforts.

Not all costs of failing to 'raise the age' come in budget
After Grits made the link on Monday, advocates and media in Houston and at the capitol invoked 17-year old Emmanuel Akueir's suicide in the Fort Bend County Jail as an argument for raising the age of adult criminal responsibility to 18. The Houston Chronicle coverage included an interview with his family. "'Emmanuel was a minor who was put with adults who've lived the criminal life and are well aware of right and wrong,' said sister Iman Akueir. 'He was a child and treated like an adult. There's no excuse about what happened. Children are children.'" Added an attorney at the capitol event: "'If we had passed this last session, that 17-year-old would not have been in that facility. So we're talking lives here. ...  If you want to talk about costs, ask his parents about costs."

Government doesn't know how many people it shoots

Grits contributing writer Eva Ruth Moravec reported that the Texas' new reporting of police shootings omitted 16 cases last year, calling into question the lack of enforcement mechanism in the law to compel agencies' participation. This tells us the omissions identified by academics in the state's death-in-custody reporting persist in these new police shooting reports. Indeed, the state has struggled to get a handle on how often police officers shoot or kill Texans. Readers may recall that another Grits contributing writer, Amanda Woog, last year determined that the Attorney General had miscounted the number of police shootings, overstating the number or reports they'd received by 20 percent. So the new reporting system is missing quite a few reports, and the AG has bungled analysis of the ones they do get. The bill from last session creating these reports was an important first step, but the law needs to be tweaked to plug these gaps and give it some teeth when agencies don't report.

Oklahoma!

Oklahoma Gov. Mary Fallin continues to push criminal-justice reforms. Wish she could convince fellow Republican Greg Abbott to do the same.

Punishing prosecutors

From the abstract of a new academic paper: "This article describes the distressing, decades-long absence of discipline imposed on prosecutors whose knowing misconduct has resulted in terrible injustices being visited upon defendants throughout the country. Many honorable lawyers have failed to speak out about errant prosecutors, thus enabling their ethical breaches. The silent accessories include practicing lawyers and judges of trial and reviewing courts who, having observed prosecutorial misconduct, failed to take corrective action. Fault also lies with members of attorney disciplinary bodies who have not investigated widely publicized prosecutorial misconduct. "

How capitalist competition boosted drug cartel efficiency

This interview by Vox with Sanho Tree is worth a read. IMO his central thesis is hard to argue. The drug war has focused for generations nearly exclusively on low hanging fruit, allowing its proponents to mistake activity for achievement without ever seriously threatening the biggest players. Meanwhile, cartel leaders have perfected their craft and devised structures that all but completely insulate them from accountability and ensure that big fish get off, while little fish get eaten. Thought provoking stuff.

Time for Texas to 'Raise the Age' for adult crimes from 17 to 18

Youth from around the state will arrive at the Texas capitol today to support raising the age of criminal responsibility from 17 to 18. The event comes on the heels of the suicide death of 17-year old Emmanuel Akueir last week in a Fort Bend County Jail cell, highlighting the particular strains which are placed on young people when they're locked up as adults. This tragedy emphasizes why Sheriffs have been supportive of the idea: their facilities aren't really designed to house and manage juveniles, and youth like Mr. Akueir pay the steepest price.

Texas is one of seven states where the age of criminal responsibility is below 18, and other such jurisdictions are also reconsidering the policy. In North Carolina, Politifact evaluated claims that a short-term investment in raising the age would save money in the long run. They dubbed the claim "mostly true," concluding that:

other states have found juvenile justice reforms including taking teenage offenders out of adult prisons do lead to less crime and long-term savings – possibly as much as $10 for every $1 spent on reform. Yet despite all the evidence about long-term savings, there’s also no denying there would be short-term cost increases for state government.

We're talking about systems, not static investments, and the idea that a small short-term expense may generate long-term savings is pretty typical in the criminal-justice field. For example, Texas' investments in treatment and programming on the adult side beginning in 2007 have prevented billions in prison spending. But many of the legislative leaders who pushed through that effort are gone now and it remains to be seen whether the Lege can be convinced to go that route for 17-year olds in a tight budget climate. It's the smart move from a good-government perspective, but good government isn't the sole or even main goal of every politician these days, readers may have noticed.

The Texas Tribune recently dubbed the Raise-the-Age proposal the top priority for juvenile justice advocates this session, providing this analysis:

The top issue for juvenile justice advocates this session will be pushing to raise the age of criminal responsibility from age 17 to 18. State law has considered 17-year-olds adults for criminal purposes for decades, but critics say the practice could do more harm than good to children, who they say have no business being locked up with adult offenders instead of being treated with 16-year-olds and younger people in the juvenile justice system. 

Legislation to make the age change failed in the 2015 session, and supporters have vowed to try again. If Texas does not enact the change, lockups in the state would continue to risk being at odds with federal law – the Prison Rape Elimination Act, which bars 17-year-old inmates from being within "sight or sound" of inmates 18 and older. County jails have had issues being able to comply with federal law because of lacking resources.

Concerns have been expressed whether the juvie system has capacity to handle 17 year olds, but the proposal comes at a time when juvenile incarceration AND crime have been plummeting for a decade, both in Texas and nationally. Texas incarcerates around 20 percent of the number of youth inmates compared to a decade ago, with juvenile crime continuing to drop as the state decarcerated. So capacity isn't Grits' biggest concern. Rather, I fear the relatively small sums required to implement the change may loom larger in a tight budget year than in a session where they have enough money to pay the bills.

Most Texans already think the age of criminal responsibility is 18 and typically only find out otherwise if their high-school-junior son is arrested and charged as an adult. But laws serve the public better if they match the public's perceptions, and most people don't consider kids "adults" before they can vote, much less drink. Treating a 17-year old as an adult is a legal fiction whose time has passed. Texas should change the law this year.

CORRECTION/UPDATE: This post originally said Texas was one of nine states treating under-18 kids as adults, a number I'd recalled from memory. LBJ School lecturer Michele Deitch emailed to say the total is actually seven. "Louisiana and South Carolina raised the age last year," she advised. Not exactly liberal bastions, those two states. Perhaps that momentum will help convince Texas legislators that it's politically okay to do this.

Crime by 17-year olds plummeting; should they be charged as adults?

The House Research Organization's Kellie Dworaczyk has produced a useful research brief on the issue of raising the age of criminal responsibility from 17-18 years old, a move which would make it easier for state and local lockups to comply with the Prison Rape Elimination Act. Texas is one of seven states which doesn't treat the 18th birthday as the threshold of adulthood, as is the case under federal law. Six states have increased the age of responsibility in the last several years.

When the raise-the-age (RTA) issue was first raised, concerns were raised that the volume of offenders would swamp the juvenile system. But the numbers, especially regarding incarceration, are lower than I'd thought. In 2015, Texas cops arrested 22,065 17-year olds for all offenses combined. There were 8,066 people aged 17-20 who were on probation for an offense committed when they were 17, so clearly the overwhelming majority of those arrests are for very low level offenses. Just 46 17-year olds were housed in TDCJ as of Aug. 31st.

Among arguments in favor of the change: "about 44 percent of arrests of 17-year-olds were for theft, marijuana possession, drunkenness, and liquor law violations." And "The offenses and needs of 17-year-olds are similar to those of other teenagers in the juvenile system."

From a normative perspective, perhaps the best reason for the change is to match the law to public perceptions. Because of media and popular culture, nearly everyone including 17-year olds themselves who're not actually, personally involved in the justice system already believe the age of criminal culpability is 18, and most of those 22k arrested in 2015 (and their parents) were no doubt surprised to learn otherwise. Where possible, the law should match popular expectations because, when they conflict, kids absorb culture all the time and none of them have read the criminal statutes.

Statistics are not gathered - but IMO should be - about 17-year olds housed in adult county jails. "At a March 2014 hearing of the House Criminal Jurisprudence Committee, the Office of Court Administration reported the estimated number of 17-year-olds in local jails on a typical day was 2,868 to 3,119. Most were in jail for misdemeanors. "

The cost estimated for raising the age in Texas, according to a fiscal note prepared in 2015 by the Legislative Budget Board, would be small at first but rise to almost $170 million over five years.

But that only considers costs to state government, which largely finances the juvenile justice system. It did not take into account possible financial benefits. According to HRO, "A 2012 report from the University of Texas LBJ School of Public Affairs estimated that raising the age of jurisdiction of the juvenile justice system in Texas would result in $88.9 million in net benefits for each cohort of 17-year-olds. This takes into account costs and savings to taxpayers and the fiscal benefits resulting from better outcomes for youths and reduced victimization."

There was also speculation that the cost estimate may be overstated. "Costs of raising the age could be less than some estimates. Arrests of 17-year-olds have been dropping for years, with 46,173 arrested in 2008 and 22,065 arrested in 2015." Fewer than half as many 17 year olds were arrested in 2015 as 2008?! That's a remarkable stat. Even Grits hadn't realized the crime drop among youth had been so significant.

The paper discussed briefly the confluence of the RTA issue and the federal Prison Rape Elimination Act (PREA).

Raising the age would help reduce costs to local jails and the state to comply with federal standards under PREA. Texas counties are incurring significant costs to try to meet the sight and sound separation standards. They report dedicating entire floors to 17-year-olds, which means leaving beds empty on those floors and having to move older offenders around a jail to meet recreation or medical needs of 17-year-olds. Counties also could incur costs if noncompliance with PREA were raised in a lawsuit against them. One large county is considering moving 17-year-olds from its jail to a facility hours away to comply with PREA

However, the report hinted at hidden costs to counties not included in the state-level fiscal note:

some estimates indicate the average first-year cost for eight counties would have been $2.2 million. Bexar County estimated an annual cost of between $8.2 million and $8.5 million to implement the change. Harris County estimated $50.1 million in the first full year of implementation and $18.2 million to $19.9 million annually thereafter. The Harris County costs included a new juvenile detention center

Here's why I don't buy those numbers: Why would Harris County need a new juvenile detention center if, when currently prosecuting these kids under adult law, only 46 of them are even locked up in TDCJ statewide in the first place? That rings false to me.

I agree RTA would cause counties to incur costs, but here's the rub: PREA will cause them to incur costs, anyway. Either one of two possible policy choices would cost counties. If the age of criminal culpability is left the same, adult county jails will have to undergo modifications to segregate 17 year olds in ways they haven't in the past. If RTA passes, juvenile systems will incur additional costs (even if IMO the Harris County numbers are inflated).

So pointing to juvie detention costs as a reason not to pass RTA ignores two questions: 1) Might renovating adult facilities cost even more? And 2) with the rest of the country moving toward an age of culpability of 18, should we sink costs into renovations to accommodate the old age regime when the long-term trend is clearly the other direction? Don't we risk having locals invest twice if, a few years down the line, the vicissitudes of fate and history end up forcing the RTA change, anyway? The tradeoffs involved in that choice weren't made as clear in the report as Grits might have preferred.

For my part, I'd rather Texas deal with the PREA issues once and be done with it, passing RTA so that Texas laws and regs better line up with the federal requirements, which treat 17-year olds as juveniles. From a managerial standpoint, it's cleaner, more efficient, and makes more sense. It would also have the added benefit of protecting those youthful arrests from future disclosure, making it easier for those kids to get a job, housing, credit, etc., down the line.

The cost makes this a tougher sell during a legislative session focused on budget cutting. But it's a pay-me-now or pay-me-later kind of deal.

Raise-the-age bill solves practical problem for Sheriffs

And here we see why the Sheriffs Association of Texas last session supported the Raise-the-Age legislation to treat 17-year old defendants as juveniles, like the feds and most of the rest of the country, instead of adults. According to the Houston Chronicle (July 1), "Stuck in limbo: Feds say jails need separate housing for youngest inmates":

The Harris County Sheriff's Office has run afoul of a federal law aimed at reducing sexual assaults in jails, leaving 17-year-old inmates with virtually no place to go while awaiting trial in adult court.

The county's jail doesn't have room in its overcrowded facility to carve out a separate space for inmates under 18, who must be housed separately from older inmates under the Prison Rape Elimination Act.

Efforts to transfer the youthful offenders to other counties have fallen through, officials said.

"We're challenged with the space we have now," Harris County Sheriff Ron Hickman acknowledged in a recent interview.

Jails are facing similar problems across Texas and in six other states, where 17-year-olds are considered adults in the criminal justice system. Federal law and the remaining states consider 18 to be the age of adulthood.

And while it's a logistical challenge for Texas jails, experts say it has serious, real-world consequences for youthful offenders.

"Seventeen-year-olds are really at risk in adult facilities; it's not the right place for them," said Michele Deitch, an expert on Texas jail issues and lecturer at the University of Texas at Austin.

"They're at risk of physical sexual assault, mental health issues, suicide - much higher rates of all of those things in adult facilities," she said.

Shifting 17-year olds to the juvenile system would not only relieve county jail classification conundrums, it would reduce adult incarceration levels, shifting thousands of cases out of the adult system. Moreover, the youth would be treated in a juvenile system that's less reliant on incarceration and with more access to treatment and rehabilitative resources than adult prisons.

If raise-the-age happens next year, it will be because the Lege acquiesces to pragmatic concerns like those expressed by the Sheriffs Association, which usually opposes decarceration reforms. But that happy turn of events doesn't change the fact that, from a normative perspective, it's also the right thing to do. It's always a pleasant surprise when those things align.

Raise-the-Age Shenanigans

WTF?

Texas' much-ballyhooed raise-the-age legislation - HB 1205 by Dutton increasing the age of adult criminal culpability in Texas from 17 to 18 - passed unanimously out of the House Juvenile Justice and Family Matters Committee on April 8th. But, as of today, with just ten days left until the last House calendar, the committee report still hasn't made its way to the Calendars Committee, which sets bills on the agenda for a vote by the full House.

Grits cannot recall in my experience a committee report ever taking longer to get from the originating committee to Calendars after a positive vote. Usually, a week is considered a long time. More than that and in my experience somebody is f%^#ing with you. But who? It's the committee chairman's bill! Grits' sources tell me the delays stem from Legislative Council's apparent inability to compile a valid bill analysis, which hardly seems credible. Yes, they're understaffed, but nothing justifies that long a delay!

Barring an intervention by leadership, this staggering hiatus probably killed the bill. Grits can't say who's behind this unprecedented postponement, but I call shenanigans!

UPDATE: Amazing what an effect a little sunlight can have. Today (5/4) the bill finally made it from the Juvenile Justice committee to the Committee Coordinator who will transmit it to Calendars. With a mountain of luck, in theory there's still time for the bill to make it onto the House floor. As a practical matter, though, probably not unless leadership in the lower chamber decide to make it a priority. One day, it'd be fascinating to learn the backstory behind this mess.

'Raise the Age' bills heard in Texas House

The Texas House Juvenile Justice and Family Matters Committee yesterday heard three bills proposing to raise the age at which youth can be criminally charged as adults from 17 to 18 years old. See:

• Coverage of the hearing from the Associated Press
• An editorial in favor from the President of the Texas Association of Business, and
• A pessimistic assessment of the bill's chances in Chairman John Whitmire's Senate Criminal Justice Committee
• MORE: Hearing coverage from the Texas Observer.

To watch the hearing, go here; it begins around the 18-minute mark.

RELATED: Pragmatic arguments the strongest for 'raise the age' proposal