Reasonably Suspicious: Police unions, collective bargaining, and accountability

Check out the latest episode of the Reasonably Suspicious podcast from Just Liberty. You can listen to it here or access it on all the usual channels: iTunes, Google Play, YouTube, or SoundCloud. 

If you haven't subscribed yet, take a moment to do so now. I'm enjoying the format and am hoping to do some interesting things in the coming months heading toward the 86th Texas Legislature. If the Wall Street Journal's right that the next billion internet users won't type, relying on voice and video, then it behooves an old dog to learn new tricks. And having cool, original music wrapped around the conversation - thanks to producer/guitar virtuoso Gabe Rhodes and some of the finest musicians in Texas (which is saying something) - makes it fun to put together.

This month's episode features three segments on police union politics, including one focused on Austin's "meet and confer" contract presently under negotiation (these highlights from the negotiating table recently made the rounds among city insiders), and a discussion of what Grits had dubbed the police union playbook on spinning to the press in the wake of police misconduct or high-profile "critical incidents." I'm perhaps most excited about the interview with Sam Sinyangwe, Campaign Zero's data specialist who has now twice visited Austin to support including accountability measures in the police union contract (or scuttling it if they're not included). I'll publish the full interview in a few days (in the meantime, you can also check out the speech he gave in Austin in September). But the segment in the podcast on why police unions too often get a political pass was worth the cost of admission.

Lots of other good stuff sprinkled throughout. As always, find a transcript of the podcast after the jump below.

Top Stories: 

• The Police Union Playbook on reacting to critical incidents

• If Harris County prosecutors are screening arrests, why are so many people arrested for Class C misdemeanors?

Interviews:

• Sukyi McMahon and Kathy Mitchell on the Austin police union contract

• Scott Henson interviews Campaign Zero's Sam Sinyangwe on why liberals and conservatives are both reluctant to criticize police union excesses

Game segment: Fill in the Blank

• Bexar and Dallas Counties cease arrests for misdemeanor marijuana possession

• Court of Criminal Appeals still denying DNA testing to capital defendants

• Real costs of incarceration top $1 trillion nationally

The Last Hurrah

• Unions now a minority at Dallas police pension board

• Time to make the Austin crime lab independent?

• Bipartisan push in Congress for asset forfeiture reform

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.

Shackled to Debt, Forfeiture Fail, a Self-Interested Revolt, and other stories

Here are a few odds and ends that merit Grits readers attention at the legislative session begins to heat up.

Rebellion of the Clerks: A self-interested revolt
There's only one real reason that clerks don't want a statewide database of court records, and it has nothing to do with quality control. They currently charge a dollar a page for records and don't want to lose the revenue. Their argument is the same as newspapers complaining about online competition from Craig's List for their classified ads. And yet, these are the most public of public records. And there's significant public demand for them. There's really no good reason not to make them available online, and the legislators lining up to stop the rollout of the new system are doing their constituents a real disservice, placing the interests of local elected officials over the public interest. Grits doesn't do oppo work for campaigns anymore, but there's easily an attack ad to be had aimed at anybody who supported a bill aimed at keeping public records from the public via unjustifiably high fees.

More critics denounce forfeiture fail
Momentum for reining in asset forfeiture continues to grow, with prosecutors going on the defensive. Go to the Just Liberty site to send a message to lawmakers supporting reform.

Union bashing bill leaves out law enforcement
Critics at a State Affairs hearing raised the same criticism Grits did about legislation by Chair Joan Huffman to eliminate union-dues checkoffs for public employees - why leave out law enforcement, which are the most powerful public employee unions in the state? The bill was voted out on a 6-2 vote with the disparate treatment intact.

TDCJ chief exec interviewed
See an interview with new TDCJ chief mugwump Brian Collier from the Huntsville Item.

Raise the Age!
Three different newspaper editorials this week backed so-called raise-the-age legislation:

• SA Express News: Adult prison is not for 17-year olds
• Star-Telegram: Criminal Justice Needs Age Adjustment
• Austin Statesman: Legislature should reform age of responsibility in Texas

For more background, see the House Research Organization's primer on the topic. Go to the Just Liberty site to send a message to lawmakers supporting this legislation.

If you've got the money, honey ...
As I write this, there are folks scouring the budget to find money to eliminate the Driver Responsibility surcharge. For their benefit, here's a presentation from the Legislative Budget Board last year with a great deal of seldom-discussed detail about the program. (Send an email to your legislators asking them to abolish the surcharge.)

Shackled to Debt
New report via Harvard's Kennedy School and the NIJ: "Shackled to Debt: Criminal-justice Financial Obligations and the Barriers to Re-Entry They Create."

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.

Asset forfeiture trumping political opposition

Remarkably, President Trump's critical comments last week about Texas senators supporting asset-forfeiture reform legislation appear to have re-energized the push rather than harmed it. At a capitol press conference yesterday, the Texas Public Policy Foundation released a poll showing that 88 percent of Texans favor requiring a criminal conviction before the government can forfeit personal property.

Several different approaches have been suggested and prospects for reform are brighter than at any time in recent memory. Cops are becoming defensive and a police chief interrupted the press conference to complain about the use of the phrase "policing for profit." Of course, they could prove they're not policing for profit by supporting Sen. Don Huffines' bill to divert all forfeiture proceeds to crime victims. Or, they could follow this suggestion to spend forfeiture money on public defenders instead of letting cops and prosecutors eat what they kill. Until then, "policing for profit" isn't an allegation about what's going on, it's simply a description.

See past Grits coverage here, here, here, and here.

A tale of three reform approaches on asset forfeiture

The media's typical response to President Trump in these early days of his presidency has been to react to his outlandish statements while giving short shrift to related policy analysis. Let's not repeat that mistake here.

With the president weighing in on Texas asset forfeiture legislation, threatening to ruin the career of some unnamed state senator who supports it, it's worth taking a quick look at the three main, alternative approaches on forfeiture reform being suggested by Republican senators in Texas this session.

The bill implementing the idea that the Rockwall Sheriff decried to President Trump is SB 380 by Konni Burton, supported primarily by the grassroots conservative faction at the Lege and an array of conservative organizations. That bill would require a criminal conviction to forfeit assets. Most people assume the government can't take your money or your car in a forfeiture unless you have been convicted of a crime, so this bill represents the primary small-government reform on forfeiture and the starting point for any dialogue among conservatives. 

Sen. Don Huffines has legislation to increase transparency surrounding forfeitures (SB 662) and another (SB 663) which would have forfeiture proceeds go to the crime victim compensation fund instead of being kicked back to the arresting and prosecuting agencies. That's a great suggestion. If we're going to do forfeiture, at least take the profit motive out of it. That would remove financial incentives to file forfeiture claims and, odds are, as a result prosecutors would file fewer of them. In particular, you'd probably see less of the small-time workaday cases that fill most forfeiture dockets. (Typical state forfeiture cases are for just a few thousand dollars - often just a vehicle.)

Right now, forfeiture funds are treated as barely accountable slush funds for police and prosecutors which may be spent for any "law enforcement purpose." (Could that phrase be any more broad?) Separating seizure of assets from the spending of them would eliminate persistent perceptions of self dealing that shroud current seizure policies.

Finally, SB 401 by Joan Huffman would not require a criminal conviction for forfeiture, but would raise the burden of proof for seizing property from a "preponderance of the evidence" to "clear and convincing." Moreover, she would allow courts to reimburse attorney fees and related costs when they later rule that property was not forfeitable. And the bill creates procedures for when officers seize assets without a warrant, requiring them to get one post hoc within 48 hours or the property must be returned.

Huffman's bill has been referred to the State Affairs Committee, which she chairs, and one should never bet against a committee chair passing legislation out of her own committee.

Prosecutors view Sen. Huffman as their main ally and principle voice in the Texas Senate. In the past, she's been skeptical of asset forfeiture reform and was a key reason it did not pass in 2015. So for her to file a bill with even a few of the reform measures being pushed by the Texas Public Policy Foundation, the Institute for Justice, the Koch Institute, Heritage Foundation, etc., makes a significant statement. 

President Trump's off-the-cuff threats aside, with so many conservative senators seeking changes, odds are pretty good something will happen. Huffman's bill represents a floor for what can be achieved in the senate this year on asset forfeiture, Burton's bill the ceiling.

MORE: From the Marshall Project.

CORRECTION: This item originally said SB 380 required a conviction to "seize" assets; under the bill, a conviction would only be required to forfeit them. H/T: Michael Haugen.

Trump offers to ruin career of Texas senator over #assetforfeiture

This blog attempts where possible to avoid national politics, culture war debates, and certainly President Donald Trump. But the president injected himself into my world this morning when a Rockwall County Sheriff was visiting the White House and complained of a state senator who favored requiring a criminal conviction before the government could seize someone's assets. Trump asked for the senator's name, declaring "I want to hear his name. We'll destroy his career."

The bill under discussion was Sen. Konni Burton's SB 380, which would follow similar legislation in other states, most recently New Mexico, to restrict asset forfeiture to instances where a crime was committed. But the Sheriff said "him," and plenty of other legislators support the idea. So no one knows for sure whom was the senator to which the Sheriff was referring. Noted the Dallas News, "Several other senators have also supported this change in the past, including two civil-libertarian Republicans: Bob Hall, whose district includes Rockwall County and Don Huffines of Dallas." All of these are Texas Tea Party stalwarts. None of them, IMO, become vulnerable because Donald Trump criticized them.

Meanwhile, conservative groups like the Texas Public Policy Foundation, the Heritage Foundation, the Institute for Justice, and others have been pushing forfeiture reform hard for the last few years. So this is an area where Trumpian authoritarianism finds itself at odds with traditional, property-rights rooted conservatism and small-government distrust of state power.  There are dozens such fracture points emerging where Trumpism  diverges from traditional conservatism, so this issue arises as part of a larger debate: Will there continue to be a place for small-government conservatism in the Trumpian era? D.C. Republicans probably cannot resist his Big-Government siren song. But here in Texas, perhaps those values are a little more deeply rooted. Burton's SB 380 would be a good opportunity to express them.

MORE: A tale of three reform approaches on asset forfeiture.

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.

Just Liberty: Tell Texas Lege to reform civil asset forfeiture

Grits readers are an informed lot, so I'll keep this short and sweet. If you live in Texas and support requiring a criminal conviction for the government to seize people's personal property via civil asset forfeiture, go to the Just Liberty site and take action, asking your state rep and senator to change the law. Now is the time to put the topic on their radar screen, as members are prioritizing issues headed into the 85th Texas legislative session which begins in January.

Currently, while the government can't secure a criminal conviction without proving their case beyond a reasonable doubt, they can accuse your stuff of criminality based on a lesser standard - "preponderance of the evidence" - and take it from you, anyway. This proposal would still let government do forfeitures, but only after they've proven that the property owner committed a crime. If you agree, Grits would appreciate it if you'd go here and register your opinion. Thanks folks.

For more arguments supporting asset forfeiture reform, see Right on Crime's new paper, "Rebutting Common Myths of Civil Asset Forfeiture."

Priorities, choices, and poor drug-war outcomes

What a world we live in.

Asset forfeiture by the government now takes more money from people than burglars and the number of heroin deaths has surpassed gun homicides.

Can't blame Donald Trump for that, huh?

OTOH, one recalls that Gov. Greg Abbott last session vetoed "Good Samaritan" legislation which would have prevented prosecution of people who called 911 during an overdose, stayed with the victim, and cooperated with police. That would have helped prevent overdose deaths. When the bill comes back this time in the 85th Texas Legislature, they should pass it again and Greg Abbott should sign it.

In a related, poor state policy decision which likely resulted in more heroin deaths, the Texas Department of State Health Services recently failed to solicit a federal grant to pay for first responders to have access to Naloxone, an opiod antagonist with no significant side effects which can keep overdose victims from dying.

Similarly, the Lege has an opportunity this session to rein in asset forfeitures by law enforcement which are unrelated to a criminal conviction. The Texas Public Policy Foundation this week published a myth-busting document explaining why they can and should do so.

These sorts of statistics aren't just things that happen in the world, they're a result of government priorities and policy choices. If we want different outcomes, government must change both.

SCOTX: Illegal searches okay in asset forfeiture cases

Here's more fuel for the fire over policing for profit:  The Texas Supreme Court today ruled that law enforcement can seize assets even when police officers violated the law and conducted an illegal search. See the opinion. In the case, police found drugs as a result of an illegal search; the criminal case was thrown out but prosecutors kept appealing on the forfeiture case, hoping to take ownership of the defendant's Lincoln Navigator.

The intermediate appellate court had ruled that the Code of Criminal Procedure "precludes the state from initiating a civil-forfeiture proceeding based on an illegal search." SCOTX, though, ruled that courts may impose no sanction on law enforcement for illegal searches in civil proceedings, holding for the first time that the exclusionary rule does not apply in these cases.

SCOTX decided that the purpose of the exclusionary rule is to punish law enforcement misbehavior as a deterrent and judged cops had been punished enough by throwing out the criminal case. They shouldn't be doubly punished, according to this reasoning, by being disallowed from seizing the defendant's assets.

Can you believe these judges are supposedly conservatives? Hard to imagine a less respectful stance toward the constitution and property rights, much less a more explicit abrogation of limited government principles.

MORE: See coverage from the Austin Statesman.

AND MORE: From the Fort Worth Star-Telegram, "Policing for cash erodes the public trust, insider says."

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

On the geography of asset forfeiture and the growing effort to restrict it

Check out a new report by the Texas Public Policy Foundation's Derek Cohen on geographical asset forfeiture patterns. (See the press release.) Declared the abstract,

insight into the volume and location of forfeitures is telling. It reveals where the practice may be overused, establishing a reliance on the proceeds of the legally dubious practice. Further, it also shows where and when standardized per-capita localities are aggressively pursuing more forfeiture, regardless of size. This report aims to demonstrate spatial patterns of forfeiture in raw  and per-capita terms, and highlight potential misconceptions and problem areas.

Basically, forfeiture's geography follows the population and highways where law enforcement finds particularly enticing targets of opportunity. A subhed summarized: "Aggregate Forfeiture Use is Similar to Population Distribution." That's mainly notable because it contradicts pro-forfeiture rhetoric about the practice combating drug traffickers. Cohen found that "Forfeiture is not common across the full length of the border" and instead it "is used most extensively along or near highways."

Forfeiture happens on highways for several reasons: Partially, it's from traffickers transporting cash payments for drugs back to Mexico. More typically, though, forfeitures happen at roadsides because a) traffic stops represent the majority of interactions between Texans and police and b) traffic stops represent a particular point of vulnerability for drivers because the Supreme Court has declared their Fourth Amendment rights in that setting are minimal and easily bypassed.

That said, though forfeiture volumes are greatest in cities, per-capita forfeitures are higher in rural areas, again mostly following highway patterns: "the amount of per-capita forfeiture activity tends to be greater outside of the major urban centers. This is doubly so in rural areas along major and minor highways, where it is not uncommon for a jurisdiction of only a few thousand Texans disproportionately forfeit tens and even hundreds of thousands of dollars per year."

As an aside, here's an interesting excerpt from the report's introduction about the difficulties of researching forfeiture patterns:

Much has been written admonishing civil asset forfeiture in Texas. From the conservative Texas Public Policy Foundation (Cohen 2015; 2014) to the libertarian Institute for Justice (Bullock and Carpenter) to the liberal Texas Appleseed (McDonald), groups have taken umbrage with the practice’s abhorrence to the rule-of-law, disregard for basic property rights, and disproportionate effect on certain communities. 

Still, defining just how much civil asset forfeiture occurs in Texas is impossible. Currently, Chapter 59 of the Texas Code of Criminal Procedure (Art. 59.06) mandates that agencies that engage in asset forfeiture only report topline summaries of the value of what is forfeited to the Office of the Attorney General (OAG). Further, until the 84th Legislature’s regular session had concluded, the OAG was not required to aggregate or publish this information (HB 530). Previous legislation seeking more transparency in the process had been defeated, garnering opposition from those that directly benefit from the practice.Thus, it has yet to be shown where forfeiture (of any stripe) is occurring in Texas, specifically those benefiting law enforcement; the quintessential “policing for profit” allegation.

For related content, see also this video from the Koch Institute and the Texas Public Policy Foundation's recent forum on asset forfeiture policy where Derek presented his findings. And here's an item from Watchdog.org interviewing him on the topic. That story mentioned the little-discussed interest of the Arnold Foundation on forfeiture issues which piqued Grits' interest:

The threat helped prompt the Laura and John Arnold Foundation in Houston to establish the Coalition for Public Safety last year.

In an editorial for the Dallas Morning News last year, the Arnolds dared suggest that one reason no one in Texas government is eager to raise the bar for asset seizures is how much the current system benefits law enforcement.

“Civil asset forfeitures have become a critical source of funds for many budget-strapped police departments and district attorneys’ offices throughout the state,” they wrote. “ We agree that forfeiture should be available to law enforcement. But not in its current form.”

If not in its current form, what form? Last year New Mexico and Montana became the first two states to require a conviction for law enforcement to take possession of cash and property involved in crimes.

Grits had earlier predicted asset forfeiture reform would be in play when the Texas Legislature convenes in 2017, and these developments are all evidence that reformers, particularly on the conservative end of the spectrum, are busily gearing up for that fight. TDCAA may need to do more than mock conservatives this time around to stop their momentum.

Reforming use-of-force policies, incarcerating pregnant women because they're poor, and other stories

Let's share a few links with Grits readers, just to clear the browser tabs:

Charles Sebesta as Inspector Javert
Defrocked prosecutor Charles Sebesta is waging a legal battle to overturn the state bar's decision to disbar him, reported Brandi Grissom at the Dallas News. He was already retired so this legal campaign, which must be costing the guy a small fortune, is all about ego. It's like watching Inspector Javert drown himself in the Seine.

State invests $400K in defense support on DNA mixtures
The Houston Chronicle ran a feature on the review of DNA mixture cases going statewide through the Forensic Science Commission, which Grits has discussed at some length. That report included this notable news:

Signs posted in Texas prison libraries in December tell inmates in English and Spanish about the issue and provide a Harris County post office box to which inmates may write if they believe their cases included this kind of DNA evidence.

Bob Wicoff, head of the appellate division for the Harris County Public Defender's Office, said about five to seven letters arrive each day, but he anticipates the box eventually could receive hundreds.

Backed by a $400,000 grant from the Texas Indigent Defense Commission, Wicoff will spend the next several years steering the statewide effort for the defense bar, aided by volunteer lawyers and law students. He will train lawyers to understand the science and vet cases to see whether they meet the criteria.

Dueling use-of-force reform suggestions
Grits earlier mentioned that Campaign Zero, a project of the national Black Lives Matter movement, had begun targeting use of force policies as an avenue for reform. Now the Police Executive Research Forum has come out with its own set of more moderate reform proposals on the topic. As I wrote in an email to two of Grits' contributing writers, between those two sets of suggestions - plus the legion of law enforcement interests who will just say "no" to any reform proposals - new terms of debate over use of force policies are beginning to emerge. For the first time in my life, people don't just ask Sam Walker what to do and then stop the debate!

More conservatives push for asset forfeiture reform
The Institute for Policy Innovation, a conservative think tank which to my knowledge has never done much on criminal justice before, is hosting an event on asset forfeiture next week in Dallas in collaboration with the Right on Crime campaign. See a column in the Fort Worth Star-Telegram from their president on the topic.

Incarcerating poor pregnant women pretrial in Tarrant County
In the Star-Telegram, see a story about women taking prenatal classes in the Tarrant County Jail. Particularly disturbing, some of the 20 pregnant inmates in the Tarrant County Jail are "waiting to make bail," meaning a judge deemed they were eligible to be released but they didn't have enough money to pay a bail bondsman. So poor women stay incarcerated and county taxpayers pick up the tab for their prenatal education classes and healthcare instead of Medicaid. Does that make any sense?

Cornyn pushing federal sentencing reform
Grits doesn't track federal stuff much but can't help but notice that Sen. John Cornyn continues to expend political capital on criminal justice reform even as Texas' junior senator and active presidential candidate Ted Cruz opposes it. Bully for Cornyn, and good luck to him.

Feds now seize more assets than burglars

Take a moment to let the meaning of this chart from the Washington Post (11/23) sink in:

The federal government now seizes more assets from its citizens than burglars steal every year in aggregate. And that doesn't even include seizures under state law. In most cases, the government takes the assets without the owner ever having been convicted of a crime. WaPo's underlying analysis came from this economist who calculated:

Between 1989 and 2010, U.S. attorneys seized an estimated $12.6 billion in asset forfeiture cases. The growth rate during that time averaged +19.4% annually. In 2010 alone, the value of assets seized grew by +52.8% from 2009 and was six times greater than the total for 1989. Then by 2014, that number had ballooned to roughly $4.5 billion for the year, making this 35% of the entire number of assets collected from 1989 to 2010 in a single year. According to the FBI, the total amount of goods stolen by criminals in 2014 burglary offenses suffered an estimated $3.9 billion in property losses. This means that the police are now taking more assets than the criminals.

See a related column from the Institute for Justice's Matt Miller providing a Texas perspective.

Slate of forfeiture reform bills heard, but not much moving and time is short

Quite an array of bills on asset forfeiture reform have been featured lately on the western side of the capitol, if not so much in the press. Rep. David Simpson's legislation to abolish civil forfeiture entirely was heard in House State Affairs last week. And several notable bills on the topic were on the agenda in the Texas House Criminal Jurisprudence Committee last night, primarily pressed by advocates from the conservative Institute for Justice and the Texas Public Policy Foundation. (Your correspondent supported these measures on behalf of the Texas Criminal Justice Coalition.)

Of the bills reviewed last night by Chairman Abel Herrero's committee, Rep. Jason Villaba's HB 2116 drew perhaps the most animated law enforcement opposition. That bill would restrict what police and prosecutors could spend money on to items listed in the code and require additional, quarterly reporting of expenditures posted on the agency's website. He's aiming to confront the situation former Dallas DA Craig Watkins created when he used forfeiture funds to settle a lawsuit stemming from a traffic accident he caused. Prosecutors do not want the public to have access to that information, objecting to additional reporting requirements. But the vehemence with which they objected to seemingly banal language limiting expenditures to articulated categories makes one think there must be a lot of expenditures that don't fit within those strictures. Else, why all the weeping and gnashing of teeth over holding them accountable to the text of the law?

There were several other good forfeiture reform bills on the Criminal Jurisprudence roster. Rep. Matt Schaefer's HB 1975 would put the primary burden on prosecutors to disprove an innocent owner claim. Rep. Jeff Leach's HB 249 and Phil Stephenson's HB 472 would install additional reporting about seizures and whether they stemmed from criminal convictions. And Rep. Terry Canales' HB 1012 would change the standard by which prosecutors must prove assets are related to criminality from the current "preponderance of the evidence" to "clear and convincing." (This is a companion to Chuy Hinojosa's SB 95, which is presently stalled in the Senate Criminal Justice Committee; see prior Grits coverage of that bill.)

With this much bipartisan interest, one would think forfeiture reform might stand a chance this session. But time is short - less than six weeks remain in a 20 week session - and no forfeiture reform bill has yet been voted out of committee in either chamber. Further, the Criminal Jurisprudence Committee, while being referred the most bills of any standing House committee, has so far voted out fewer than 20, putting it on a much slower pace than its peers. So unless Chairman Herrero and Co. act on these with uncharacteristic alacrity, there may not be time for anything but a floor amendment strategy. And even then, with so few bills moving on the topic anywhere in the process, there aren't many captions floating around to be amended.

Still, there have been lots of good ideas proffered on forfeiture this session and good groundwork laid for the issue going forward. None of these bills were filed in 2013 and often it takes two or three sessions for new suggestions to percolate their way through the process.

At a minimum, there's clearly enough interest in the House that the Criminal Jurisprudence Committee deserves an Interim Charge to study these suggestions and other potential forfeiture reforms. Perhaps with a little more interim prep and study, these ideas could enter the 85th Texas Legislature with more momentum or even support from the leadership. This year, the effort's been more of  a bottom-up affair.

New Mexico will require criminal conviction for asset forfeiture, will Texas?

Some folks at the Texas capitol considered state Rep. David Simpson and Sen. Konni Burton radical for filing legislation (here and here) which would effectively end civil asset forfeiture, requiring a criminal conviction before the state could seize someone's property. To put matters in perspective, though, see Radley Balko's report that in New Mexico:

The state Senate has just passed a sweeping bill that would virtually eliminate the practice of civil asset forfeiture and on this issue leave New Mexico as the most Fifth Amendment-friendly state in the country.

The bill would basically require a criminal conviction before police can take property associated with a crime. “Civil” asset forfeiture, by definition, allows law enforcement to seize and keep property without a criminal conviction. It often puts the onus on the property owner to “prove” that he or she obtained the property legitimately, or that it wasn’t used for criminal activity.

The bill was supported by the American Civil Liberties Union of New Mexico, the conservative think tank the Rio Grande Foundation, the Drug Policy Alliance and the libertarian law firm the Institute for Justice (IJ). In an e-mail, Peter Simonson of the ACLU-NM writes, “The sponsor was the Republican chair of the House Judiciary Committee and the bill had strong bipartisan support throughout the legislative process, passing both chambers unanimously.”

The bill was even praised by New Mexico resident Brad Cates, who headed up the Justice Department’s forfeiture office during the Reagan administration, the era when the more odious practices began.

See Grits recent coverage of Texas forfeiture legislation and a Texas-specific example of conservative support for reform on the issue that tracks Balko's national perspective.

Simpson's marijuana proposal - treat it like tomatoes - qualifies as radical. His proposal on asset forfeiture - that the government shouldn't take a man's property unless it convicts him of a crime - is common sense, Reaganesque conservatism for the working man.

Requiring a criminal conviction before one's assets can be seized is the kind of thing where, when you describe it in public, people respond, "isn't that already the law, already?" And when they learn it's not, nearly everyone thinks it should be. It's only prosecutors and law enforcement insiders who want forfeiture applied to people who the state cannot prove are criminals. And their support stems primarily from the fact that they're the ones who will get to spend most of the seized money.

Bar alleges DA misconduct in Willingham case, bad closed-records bill, auditing forfeitures, testing for steroids, diligent participation credits (federal and state) and other stories

Here are a few odds and ends that deserve readers' attention but didn't make it into individual posts during a busy week:

State bar accuses Willingham prosecutor of misconduct
Reported the Marshall Project, "the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters." The bar "accuses [former Navarro County DA John] Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana." From the bar complaint: "Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel. Specifically, [he] failed to make timely disclosure to the defense details of an agreement for favorable treatment for Webb, an inmate, in exchange for Webb's testimony at trial for the State."

SA4 case headed toward denouement
Again from the Marshall Project, a review of the San Antonio Four case and the difficulty of evaluating the veracity of child accusers who recant. Wrote Maurice Chammah, the SA4 cases "fall into an increasingly visible category of prisoners who have been freed due to evidence of a wrongful conviction but have not been formally declared 'innocent' by courts." This was also a case where Texas' new junk science writ came into play.

Making state employees DOB secret invites unchecked corruption
State Rep. Cindy Burkett has filed legislation to disallow people from accessing state employees birth dates under open records requests, the Dallas News reported, but this is a terrible idea that would dramatically reduce accountability in state government. As a practical matter, for an investigative reporter, a campaign opposition researcher, private investigators, citizen activists, or any independent fact finder investigating state government, date of birth is the main way one can viably distinguish individuals, especially if they have common names. (Is "Randy Jones" from the signature line of a state contract the same person as "Randall Jones" who seems to have received favorable terms on a land deal with the same company? You need a DOB to tell.) Remove that tool and much of the old-school paper trail work involving public information requests and courthouse records becomes nigh-on impossible. I understand the privacy-based impetus behind this bill, but it's profoundly misguided.

State auditor reviewing Dallas DA forfeiture expenditures
The State Auditor is investigating the asset forfeiture funds of former Dallas DA Craig Watkins following allegations that he improperly used the account to settle a civil suit over a car wreck he caused which included a gag order. The auditor's report is expected in May, reported the Dallas News.

Prison riot spurs busted contract
The feds are ending a contract with the South Texas prison where immigration detainees recently rioted, reported the Houston Chronicle. See more from Texas Prison Bidness.

State to stop steroid testing HS athletes, still no mandate to test cops
I've never understood why Texas chose to test high school athletes for steroids - despite little evidence there's a big problem with their use at that level - but never chose to test police officers, for whom there's ample evidence of significant steroid use. (To their credit, a few departments including Dallas and Arlington PD have begun testing on their own.) The state is finally going to ditch testing for high school athletes; I still think they'd expose a lot more problems by spending a fraction of that money testing police officers.

Cornyn backs aggressive sentence reductions for program participation, will Texas?
See an update on federal sentencing reforms being pushed by Texas Sen. John Cornyn. Under his bill, "Medium and low risk prisoners could earn a 25 percent sentence reduction or transfer to a halfway house or home confinement through completion of programs." That's slightly more generous, even, than the (up to) 20 percent sentence reduction which would be available to state jail felons for "diligent participation" in programming under SB 589 by Sen. Jose Rodriguez, which was heard on Wednesday in the Senate Criminal Justice Committee. Perhaps Sen. Cornyn endorsing an even more aggressive version of the same idea will help Mr. Rodriguez's cause.

Stingrays and non-disclosure agreements
The New York Times this week ran a feature on the worrisome requirement that local police departments which by "StingRays" and other surveillance devices from the Harris Corporation must file non-disclosure agreements which they claim trump open records laws or, in the case of Houston PD, even a duty to disclose to prosecutors how they use the devices. These issues will soon be prominently raised in Texas as Dwayne Bohac's HB 3165, which would require law enforcement to get a warrant to target an individual's phone using the device. His bill also trumps these sorts of NDAs, making information about Stingrays subject to the usual provisions of the Public Information Act.

How jailhouse snitch testimony can 'backfire,' even with corroboration
Vice.com has a thoughtful discussion of problems with overuse jailhouse informants, even in states like California which require corroboration of their testimony (a provision, writer Kevin Munger could have added, which Texas passed two years before the Golden State).

Coin flip justice: Prosecutors threaten property rights

On Wednesday, your correspondent testified on behalf of the Texas Criminal Justice Coalition in favor of SB 95 by Sen. Juan Hinojosa which would raise the standard under which the state can seize assets without a criminal conviction under the state's civil forfeiture laws.

Hinojosa's legislation would require the state to provide "clear and convincing" evidence the property was associated with criminal wrongdoing instead of the current "preponderance of the evidence" standard (more likely than not). The bill was heard yesterday in the Texas Senate Criminal Justice Committee. Video is here; it's the first bill up. See coverage from the Dallas Morning News.

Remarkably, there was really only one opposition argument presented against Hinojosa's bill, and it took the form of a threat. Prosecutors told the committee that, if the Legislature insisted they only seize property when evidence that it was used in a crime is "clear and convincing," they would ignore that directive and seek forfeiture under a federal administrative procedure which provides fewer due process rights. The reason they don't do that now is that the feds want a 20 percent cut and don't typically process the smaller cases of a few hundred dollars the way state prosecutors are wont to do.

Grits found that position outrageous and was even more astonished that senators didn't seem affronted by being told, in essence, "If you insist we can't violate Texans' property rights under state law we'll cooperate with Eric Holder and the Obama Administration to go around you." Instead, some of them piled on with rhetoric about how greedy the feds were, how much DOJ hated due process, and treated federal forfeiture in general like a bogeyman that should scare legislators into acquiescing to whatever prosecutors wanted.

Even so, nobody made the claim that "preponderance of the evidence" is the better standard because they thought the state should be able to seize people's property when it's "more likely than not" it was associated with a crime. I think that's because there's really no good argument to support that view that any responsible, morally centered adult is willing to make in public. As I told the committee, a "preponderance" standard means that, if the chances are a scintilla above a coin flip, the state wins, and the government owns the coin. If it was your property, it wouldn't seem like too much to ask that the government provide "clear and convincing" evidence it was used in a crime.

In any event, there's an easy solution to the dilemma posed to the committee by this sort of prosecutor defiance. State Rep. Bill Zedler filed legislation this year, HB 2623, which would disallow state prosecutors from using federal forfeiture unless the amount is over $50,000, it's an interstate crime, or the property may only be seized under federal law.

If the committee simply amended SB 95 with the text from Mr. Zedler's bill, it would fully resolve all the concerns expressed yesterday and ensure that Hinojosa's legislation would actually provide the protections intended, and to which most of the committee (except Sen. Joan Huffman, who outright opposed the bill), seemed sympathetic.

The only other concern, expressed in passing, was that changing the standard could reduce forfeiture revenue to counties. But all the police and prosecutor interests who testified claimed that the overwhelming number of forfeitures - 99 percent, a San Antonio PD cop claimed - involved criminal convictions, so in those cases there's more than "clear and convincing" evidence and there would be no problem using forfeiture under the higher standard. Sen. Charles Perry said his local DA had told him a similar number for the proportion of forfeitures in Lubbock accompanied by criminal convictions.

To be clear, I don't believe for a second that it's true 99 percent of forfeitures involve cases where there's a conviction. The only reason they can get away with saying that is that there's no detailed reporting that drills down to that level of case detail, an issue other bills in play at the Lege this session may address. But if law enforcement can be taken at their word that nearly everyone with  assets seized are convicted, the budget worries entirely dissipate. Those cases will always meet a clear-and-convincing standard. In that sense, their arguments over raising the standard (that nearly everyone affected are convicted criminals) undermined the claim that forfeiture budgets would drop. Both can't be true.

In any event, the only cases where the state might not get as much revenue under Hinojosa's bill are situations where they can meet the slightly-better-than-a-coin-flip standard but not a "clear and convincing" one. And if the Texas Legislature decides the latter standard should prevail, perhaps prosecutors should abide by that dicta instead of immediately seeking to undermine and bypass the law. Or if they won't, perhaps the Lege should just make them.

RELATED: From Unfair Park.