Debates around the Texas George Floyd Act have revived discussions of accountability in drug enforcement that first arose two decades ago following the Tulia drug stings. Regular readers know George Floyd was one of scores of Houstonians convicted of drug possession based on the uncorroborated testimony of Houston Police Narcotics Officer Gerald Goines, whose mendacious testimony about fabricated informants resulted in the deadly Harding Street raid.
Goines' case - and the audit of the HPD narcotics unit showing similar practices by other officers were largely unregulated and unsupervised - revived failed efforts following the Tulia episode to require corroboration for police officer testimony in drug cases. This week, HB 834 (Thompson) requiring corroboration for undercover officers in drug cases passed out of committee.
Notably, as if to corroborate the need for corroboration, a couple of days before that bill cleared committee, a similar case arose in the national press. A NYPD narcotics detective responsible for thousands of arrests was found to have falsified testimony in at least 90 cases and likely many more.
Like Gerald Goines and Tom Coleman, NYPD Detective Joseph Franco has caused incalculable harm. As in Houston with Goines' victims:
erasing records can only go so far, public defenders say.
“The damage is done at the point of arrest,” said Tina Luongo, a lawyer who heads the criminal defense practice at the Legal Aid Society. “They likely had bail set on them, spent time at Rikers Island, lost jobs, were separated from their families — no matter what happens, those harms were done.”
How much of that could have been prevented just by requiring some evidence - any evidence - beyond a police officers' word to secure a conviction?
On the most recent Reasonably Suspicious podcast, Mandy and I interviewed Jeff Blackburn, a civil rights lawyer out of Amarillo (and my old boss at the Innocence Project of Texas) about the Tulia drug stings and pending legislation to require corroboration. Jeff also testified by video at the hearing for HB 834, which is a stand-alone bill including the corroboration provision from the #TexasGeorgeFloydAct. I pulled that podcast segment out as a little seven-minute stand-alone, you can listen to it here:
Grits is excited this Texas legislation appears to have legs this year, but part of me can't help but lament our failure to secure this reform 20 years ago. Back then, the corroboration bill was scaled back to require it only for informants, not police officers, How many false convictions and abuses of power might have been prevented in the ensuing two decades if we'd won this reform back in the day? We will never know. But better late than never, the Texas Legislature has an opportunity to rectify this oversight now.
The justice system can be difficult to understand for experts and darn near impossible for laypeople. Grits believes that's in part because the public best understands issues of crime, punishment and justice through storytelling. But there are too many stories emerging from the system which often seem to produce contradictory moral conclusions. Which story one latches onto may tell more about the storyteller (or the listener) than the system. Yet at the same time, the stories are important and without them, the public can't comprehend what's happening and drowns in a sea of policy recommendations.
Many of the most difficult dynamics facing the 21st-century justice system are revealed through the lenses of four black Houston men's tragic stories making recent headlines: Houston PD Sgt. Harold Preston, shot down after 41 years on the force while responding to a domestic dispute; Narcotics Detective Gerald Goines, whose false affidavit resulted in the deaths of two innocent homeowners; George Floyd, whose death in Minneapolis was preceded by numerous run-ins with Houston PD, including a drug conviction in which he was possibly set up by Detective Goines; and Lydell Grant, a Houston man convicted of murder and exonerated by DNA and the confession of the real killer, but whose innocence the Texas Court of Criminal Appeals refuses to acknowledge.
The justice system in Houston isn't just one of these stories, it's all of them. (And many more, but these are all particularly iconic.) There are good cops like Sgt. Preston who touched many lives and are a credit to their badges. But the same department provided tolerance and succor to Detective Goines and a sizable cohort of allegedly corrupt cops at an HPD Narcotics Division that arguably should be shut down. Telling either story without acknowledging the other provides an incomplete perspective.
Like Sgt. Preston, George Floyd grew up in the Third Ward and attended Jack Yates High School. The Washington Post has published an excellent series titled "George Floyd's America" which does a better job than I could showing how the justice system, Houston schools, and segregated housing layered together to present virtually insurmountable barriers for Floyd and generations of youth just like him.
Then there's Lydell Grant: Falsely convicted despite a legitimate alibi, based on multiple eyewitnesses' testimony which DNA results later contradicted. The Texas Court of Criminal Appeals wants the witnesses re-questioned, even though DNA evidence contradicted their recollections and the person the DNA matched has confessed to the crime! In essence, Texas' court system would rather uphold a bad conviction than free an innocent man, and it's hardly the first time.
Each of these men's stories reveals unheralded truths about the justice system. George Floyd's sad saga reminds us that it's a short step from institutional racism to terrible, negative outcomes for individual black folks. Lydell Grant's story reinforces the folly of assuming the justice system will seek or embrace just outcomes. Gerald Goines' ignominious apologue highlights the reality that law enforcement appears to tolerate bad actors in its midst, often for many decades. And Sgt. Preston's story reminds us that plenty of cops went into the business for the right reasons and there's still much good to be done in that role.
All of those things can be true at once. Focusing on any one story misses the big picture, while failing to acknowledge individuals' stories misses the most compelling aspect for the public. Today, Grits encourages you to think about four of them.
After a three-month hiatus while your correspondent underwent throat-cancer treatment, here's the May 2020 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted as always by me and Mandy Marzullo. Grits must admit, until I was editing all this together, I hadn't realized how much the radiation treatment had affected my vocal chords: I sound like a different person, decidedly heading in the raspy, Tom-Waits-ish direction. (Really that's wishful thinking; my singing voice is completely shot.) Regardless, it was good to see Mandy again and climb back into the podcasting saddle.
We went a little longer this time because the segment on Austin PD includes a half-dozen excerpts from a community forum held last week by the Austin Justice Coalition. Lots of good stuff there. Thanks to Chas Moore for getting me the audio. As always, the podcast is available on Soundcloud, iTunes, and Google podcasts, or you can listen to it here:
Here's what we discussed this month, with time stamps in case you want to jump to an individual segment:
Top Stories
Community groups call for Austin police chief's ouster (1:46)
Coronavirus in Texas jails and prisons (32:40)
Fill in the Blank
Ransomware attack on Texas courts (44:40)
The Texas AG and Rosa Jimenez (48:15)
Editor of Palestine paper wins Pulitzer for series on jail oversight (51:30)
The Last Hurrah (53:25)
Harris County DA calls to overturn shady drug convictions
San Marcos mandates citations instead of arrests for petty crimes
Joe Bryan gets parole
Find a transcript of the podcast below the jump. Enjoy!
The new 2019 annual statistical report for the Texas Office of Court Administration provides these broad datapoints about the Texas criminal-justice system:
The number of new misdemeanor cases continued to decline last year in Texas, but felony cases continued to rise slightly.
Drug cases contributed to a huge amount of this volume, both for misdemeanors (mostly pot) and especially new felony filings:
FY 2019 data already showed a slight drop in marijuana caseloads, even though the Legislature didn't change the hemp law until the fiscal year was nearly over. But felony drug cases continued to rise, helping generate overall felony caseload increases even though reported crime rates have hovered around generational lows in recent years.
Arresting drug dealers was never a winning Drug War strategy because, as long as demand existed, there was always a willing supplier ready to replace anyone who was arrested, prosecuted, jailed, or even killed. As it turns out, that's true at the highest echelons of the international drug trade.
These changes arguably justify dismantling much of the federal drug enforcement infrastructure as we know it, argued an article in Foreign Affairs by Steven Dudley published this spring, declaring "the days of the monolithic, hegemonic criminal groups with all-powerful leaders are over." As a result, "For U.S. policymakers, it may be overkill to direct the resources of six federal law enforcement agencies toward dismantling these groups, especially in the era of synthetic drugs."
The author observed that today there are "a wide variety of American, Chinese, Dominican, Indian, and Mexican groups supplying the U.S. market, some that conduct almost all of their business online from within the United States."
The FA story linked to a detailed report on Fentanyl smuggling via Mexico and China that's worth a look for those interested in either addiction or drug enforcement. Texas largely has been spared a huge fentanyl problem essentially by chance: the cartels that supply Texas sell "black tar" heroin which doesn't mix well with fentanyl, while heroin that comes to the northeast and midwest from Dominican suppliers or from the Sinaloa cartel on the west coast is more easily mixed. Check out the spike in national overdose deaths associated with the rise of fentanyl:
Regardless, the death total was heightened by the Governor's veto of and continued opposition to Good Samaritan legislation. Moreover, the state's failure to expand Medicaid under the Affordable Care Act keeps drug treatment out of reach for nearly all low-income people except through the justice system. Jails and prisons are a poor and ineffective substitute for free-world healthcare, for addiction as much as for mental illness.
Notice, none of the things that would actually save lives involve chasing down drug suppliers in other countries. That has shown to be fruitless. What Americans refer to as "cartels" are really vast hydra-like webs of interconnected companies and criminal organizations that readily reproduce the function of any and every severed limb. Many, many billions of US taxpayer dollars have been spent trying to slay these beasts and for every head severed, two grow in its place.
This isn't new, by the way, it's always been true. It was easy for anyone paying attention to the world of drug smuggling to see that shooting Pablo Escobar solved nothing. Only reducing US-side demand can scale back the scope of the drug trade.
American law enforcement largely has failed, or more aptly, refused to accept this reality. As Upton Sinclair famously put it, “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”
The "kingpin" model justified numerous law-enforcement strategies - e.g., expanded use of asset forfeiture, reduced Fourth Amendment protections, abetting the rise of SWAT teams and execution search warrants via SWAT-like "dynamic entry" - that in practice mostly empower law enforcement in petty, workaday cases. For many years, the drug war was also a reliable source of federal pork.
All this was justified by the idea that trolling for "little fish" could lead to catching "big fish." But even the big fish turned out to be parts of massive schools and were easily replaced. We have decades of evidence that catching, jailing, or even killing "kingpins" does nothing to reduce addiction in the United States.
So if supply-side interdiction has proved pointless, what might affect the demand side? The best way to reduce demand would be to expand Medicaid to access treatment funds to fight addiction. Another recently proven method is to encourage legal, domestic sourcing. Pot legalization in many states has bolstered domestic supply and substantially reduced, but not eliminated, demand for illegal imported marijuana, as demonstrated in this data from the fentanyl report mentioned above:
One final thought: The myopic focus of US drug policy on Latin America is an odd thing, because Afghanistan is overwhelmingly the most important source of illicit opiods coming into the US, according to the Department of State (p. 29 of the pdf):
But drugs are almost exclusively portrayed in the press as a Mexico problem. (China's role was particularly highlighted in the fentanyl report.) In fact, the international illicit drug trade is a global problem, one fueled almost entirely by an insatiable US demand. As long as demand, and prices, remain high, no supply-side intervention will ever "solve" it. As the Foreign Affairs story colorfully concluded:
El Chapo was a powerful and wealthy drug lord, and bringing him down was an undeniably important step in curtailing the reach of Mexico’s cartels. But burnishing his status as a kingpin perpetuates a false narrative that destroying him—and those like him—will solve the problems posed by the drug trade. In fact, convicting one drug lord is more akin to plucking a single bee from the hive.
Texas has botched its response to the opioid epidemic six ways from Sunday.
First, Gov. Greg Abbott vetoed a bill passed by the Texas Legislature in 2015 to allow people to call 911 in the event of an overdose without being charged with drug possession. As the law stands, it disincentivizes calling for emergency services because helping a friend who overdosed exposes the caller to prosecution. More people die every year because of Gov. Abbott's cruel and senseless decision on that front.
Then, the state decided to crack down on opiate prescribers, except rules the Pharmacy Board developed are a chaotic mess and exacerbating the problems they were created to solve. The Dallas News editorial board gave a good assessment of the problem.
Finally, and most damagingly, Texas remains one of a minority of states whose leaders have adamantly refused to expand Medicaid, even though every analysis of the opioid crisis has emphasized the woeful lack of resources for drug treatment as the state's biggest barrier to addressing it. More than half of Texas' drug treatment resources come through matched funds from the federal Medicaid program, while nearly all the rest is spent by the Texas Department of Criminal Justice.
As Grits has written before, there are two ways for Texas to increase drug-treatment spending without raising taxes: A) Expand Medicaid under the Affordable Care Act, or B) reduce penalties for low-level drug possession and use the savings from reduced incarceration to pay for more treatment services. There is no option C.
"The no-knock warrants are going to go away like leaded gasoline in this city," declared Houston Police Chief Art Acevedo at a town hall meeting after police killed two people (along with two dogs) and four officers were shot while serving a search warrant, reported the Houston Chronicle.
The chief said he no longer "sees the value" in such raids, which were criticized earlier this month in a Texas Monthly story. In the future, said Acevedo, HPD won't use the tactic in most instances, and in the rare cases it is needed, it will require his personal approval.
That would be a big deal if he follows through with it. Here's hoping the announcement isn't just a short-term media stunt. Indeed, one hopes the Texas Legislature might look at requiring chief-level sign off for all "dynamic entry" episodes. God knows, this is an issue statewide, not just in Houston.
SWAT-style raids aren't the only policy area where reforms are implied by this clusterf&#k. Grits earlier identified an open-records exemption that keeps police misconduct secret at HPD. And Acevedo declared the department would roll out a new body-camera policy in the coming weeks. Officers in the raid weren't wearing bodycams and the incident wasn't recorded.
Finally, reforms are needed in the murky world of undercover drug enforcement. There probably needs to be more internal monitoring of informants used to secure search-or-arrest warrants, including keeping records of whether their information holds up. Another needed change: informants should be afforded a right to counsel whenever police use them to make cases against others. That would both protect them from having their rights abused, and provide a barrier to police faking informant testimony to secure probable cause, as allegedly occurred in this case.
Four officers were shot and two suspects and their dog are dead after a botched narcotics raid in Houston. Friends and family of the deceased say they were innocent victims. Obviously, I hope all the officers recover. But having watched this play out in the press for several days, Grits has questions.
Here's the background: According to the search warrant, police claimed they sent a confidential informant into the home who had assisted in 10 or more prior investigations, all of which had led to arrests and seizures. They searched the CI, gave him cash, and allegedly watched him go into the home in question. He came out with brown heroin in a bag, telling police he'd seen many other bags of heroin and a 9mm pistol. The officers placed the home under surveillance until they could get a warrant.
Problem is, they found no bags of heroin. There was no 9mm pistol. But when the narcotics unit (not a SWAT team) entered the home at five in the afternoon, announcing themselves as the battering ram broke the door down, there was an angry pit bull facing them that an officer immediately killed with a shotgun blast. At that, one of the homeowners returned fire, and an intense gunfight occurred.
The homeowners didn't have a 9mm, but they did have shotguns and a .357 Magnum, and they responded to the home invasion the way many gun owning Texas homeowners brag they would. Maybe they were violent criminals trying to kill police, but they could also have been unwitting victims of a lying informant who didn't understand who had broken down their door and shot their dog.
That's the first question: Were these people heroin dealers? The available evidence says no, and regrettably, they're not around to defend themselves against the allegation. Their neighbors told reporters they almost never had visitors, and their friends and family adamantly deny the charge. Cocaine was allegedly found on the scene, but one bag, at user levels. And the multiple bags of brown heroin and 9mm weapon alleged in the search-warrant affidavit were nowhere to be found.
So the second question is: Where did the informant get the heroin? Police claimed they followed best practices, searching the informant beforehand and watching him go in and out. The couple couldn't have moved it because police had the house under surveillance. And they'd have seen if there'd been enough customers for all the volume to deplete. So if the informant brought back heroin, where did it come from?
Third question: Is it plausible that this couple would sell smack to a CI sent to their front door whom they'd never met before? Something there doesn't add up.
Fourth question: Will the Conviction Integrity Unit at the Harris County District Attorney's Office now review those 10+ cases using this informant in the past? If he lied about this couple selling heroin, what else might he have lied about?
Fifth question: HPD claimed they raided the home for safety reasons because they knew there was a gun inside (even though they had bad information about that; there was no 9mm). But given the outcome, was it really safer? It was 5 p.m., so they were awake. Mightn't the outcome have been better if they'd just knocked on the front door?
Sixth question: Should police use "dynamic entry" to execute search warrants every time there's reportedly a gun in the home? There are probably guns in half the homes in Texas! Relatedly, if you're afraid someone might shoot at you when you break down their door, why not just wait outside for them to come out? The house was already under surveillance.
Seventh question: Were these narcotics officers sufficiently trained to perform a dynamic entry? There's a subsidiary question: why wasn't a SWAT team used? After his wife and dog had been killed, the husband, a Navy veteran with no criminal record, snuck out the back and opened fire on the officers from behind, the Houston Chronicle reported. This was a basic tactical error - someone should have been manning the back door. Also, such raids are frequently conducted pre-dawn to minimize the chance suspects will be awake and shoot back. This one was performed at five in the afternoon. So did these narcotics cops just not know what the hell they were doing?
Eighth question: Could they have raided the wrong house? The search warrant affidavit says police watched the informant go into the house and come out with drugs, then watched it until they raided it. But what if that's a lie? What if the informant merely told an officer the address of the house, and got it wrong? Otherwise, where is the heroin?
Ninth question: How much was the informant paid for this service? What is this person's background? How much was s/he paid in the past, and for what services? An officer vouched for the person in the search warrant affidavit, what was their relationship? It's okay to tell, the person can never be used as an informant again.
Tenth question: Chief Art Acevedo said neighbors thanked police for taking out a known drug house. But reporters interviewed every neighbor they could find and everyone said these were quiet people who seldom had visitors, loved animals, and kept to themselves. Why weren't those grateful neighbors corroborating the chief's claims to reporters?
Eleventh question: Why does Fox and Friends give union boss Joe Gamaldi a platform? The guy's a blowhard.
For more commentary on some of the implausible aspects to this story, see Reason's Jacob Sullum here and here.
MORE: On Twitter, someone suggested another excellent question: "Who shot who?" It was said the wife was shot when she lunged for a downed officer's shotgun after her dog had been killed. Does that mean she was unarmed at the time and the husband did all the shooting? Were any of the police injured by friendly fire? Who shot who is an excellent question.
UPDATE (2/15): We're starting to get a few more answers. The informant may not exist, reported the Houston Chronicle, and police officers used heroin already in their possession to claim they'd performed a controlled buy. The narcotics officer who signed the warrant, Gerald Goines, from his hospital bed named two informants who may have performed the controlled buy, but both denied participating when questioned by investigators.
In the original warrant - the one used to justify the raid - Goines wrote that he watched the buy and, along with [Steven] Bryant, identified the substance as heroin. But when investigators went back to talk to Bryant, he admitted that he'd actually retrieved two bags of heroin from the center console of Goines' car, at the instruction of another officer.
Though he then took the two bags of drugs for testing to determine that they were heroin, he eventually admitted that he had never seen narcotics in question before retrieving them from the car. That, the investigator noted, contradicts the search warrant affidavit filed before the raid, which indicates that Bryant "recognized the substance purchased by the CI as heroin."
The Texas Forensic Science Commission has completed its legislatively mandated report on the validity of field tests for controlled substances, and it was released today. Here's a first-cut look at what they found.
Let's be frank. Lynn Garcia has led the commission to perform some of the most able and erudite investigations of flawed forensic practices of anyone, anywhere in the United States. She is my friend and I am a fan of hers. This is not their best work.
In the past, when the Commission has been charged with evaluating junk science - e.g., arson, hair-and-fiber, bite marks, blood spatter - they have earned national praise for courageously confronting the problems instead of allowing flawed forensics to go unchallenged, as most jurisdictions choose to do.
In this instance, though, the FSC evaluated a brand of junk science so pervasive to how the justice system operates, and so heavily relied upon by law enforcement, they couldn't bring themselves to recommend it be discarded.
Field tests being used today were developed in the 1960s, we learn in the report. Despite having been around for more than a half century, however, "With respect to scientific reliability, there are very few published validation studies for field tests." Manufacturers of these kits do not publish their own validation data, "thereby raising questions about the veracity of marketing statements."
Indeed, the likelihood of error regarding these tests has been long known: "Under Texas law, confirmatory analysis performed by an accredited crime laboratory is required in order for the evidence to be admitted in a criminal action." Advocates around the country have been calling for a moratorium on their use for years.
The Texas Department of Public Safety and several other agencies no longer use them. However, in a survey conducted by the FSC, prosecutors reported that most agencies in most counties surveyed still used drug field tests.
Speaking of which, one wonders: Why only survey prosecutors? Since the FSC was tasked to evaluate the forensic source of a brand of false convictions - and since all they did for prosecutors is put a survey on a listserv - it couldn't have been that much more difficult to get input from the defense side.
The reason the FSC was asked to do this report is that hundreds of people in Harris County alone have been falsely convicted when they pled guilty in order to get out of jail, even though they would be exonerated many months later when forensic tests came back. People just didn't want to wait months in jail until the labs got around to their sample. One of the best backgrounders on the issue was actually done by a comedian. Check it out, it's worth watching:
In the FSC report, the euphemism for "innocent people falsely convicted" is "Unintended Adverse Consequences in Some Plea Cases." With that framing, they describe how:
The most significant unintended consequence of the widespread use of field drug tests is the extent to which they impact cases resolved by plea agreement.Of the approximately 55,000 seized drugs cases analyzed at the Texas Department of Safety (DPS) each year, examiners testify in less than 1% of the cases. This means the vast majority of cases submitted to the laboratory are resolved by plea.
The survey of prosecutors found that half of "large" jurisdictions (more than 100,000 population) took plea deals without a final lab report; a third of mid-sized agencies did so, while all of the small-county prosecutors entered plea deals based on field tests.
There is no statutory prohibition against accepting pleas without a laboratory test. There is no broad-based rule providing that a laboratory must complete instrumental analysis even where a plea has been reached. DPS reports that policies with respect to this issue vary from jurisdiction to jurisdiction. While many jurisdictions require DPS to complete testing even after a plea has been reached, this is not true in all cases.
Regrettably, the Commission declined to recommend such a "statutory prohibition" or "broad-based rule," even though that omission is the primary source of "Unintended Adverse Consequences in Some Plea Cases" (read: false convictions).
Indeed, we don't even know how many false convictions have occurred because "there is no central repository in Texas for drug pleas that were later overturned by contradictory laboratory testing."
Lamentably, DPS has a policy not to perform testing on controlled substances if a plea deal has been reached. "This is not because the DPS laboratory does not appreciate the reliability concerns surrounding the use of field drug tests, but rather as a necessary component of limited resource allocation."
So in precisely the circumstance most likely to produce a wrongful conviction, by policy the agency does not double-check to make sure there wasn't one. Statewide, 1,475 agencies rely on DPS for their forensic testing, according to the report.
Yes, it's because the agency is underfunded. That funding gap is why the Legislature authorized user fees, which the Governor rescinded. But that's cold comfort to the falsely accused person pressured to plead guilty in order to get out of jail.
Nor does the FSC recommend that DPS be required to test cases after plea deals have been reached, although they did advocate that the agency be given more resources.
Rather, the report pins the blame on a dysfunctional bail system rather than suggesting fixes involving the labs or standards of evidence. That's because:
for indigent defendants who cannot afford to post bail but do not pose a risk to public safety, the result of a policy requiring confirmatory testing can be a lengthy jail stays which have severe impacts on economic stability for affected families as well as unnecessary costs for local government.
At the same time, the report operates under an odd pretense that these low-level drug offenders are themselves a serious safety threat, implying maybe they shouldn't be released pretrial:
Even more important to public safety are cases in which defendants pose a serious risk of re-offending but are released on personal recognizance (PR) bonds after 90 days because lab results are still pending and judges refuse to continue to hold the defendants. TDCAA survey respondents describe circumstances where they “have defendants out on these PR bonds who commit new crimes because we haven't been able to get them into court. This is very frustrating to prosecutors, law enforcement and most importantly to the citizens of our county.”
This may have been a moment in the report when the Commission might have benefited from a defense perspective, particularly if they were going to focus on policy concerns instead of scientific ones.
Regrettably, very few of the Commission's recommendations address the fundamental causes of junk-science-based false convictions in these cases, unless you count the suggestion to throw lots of money at crime labs. Grits agrees DPS crime labs need more funding - it's why your correspondent supported user fees passed last session - but money won't in and of itself solve the false-conviction issue.
One solution could be for agencies to simply stop using junk science this unproven forensic method:
In 2017, a number of Texas law enforcement agencies (e.g., Houston Police Department, Pasadena Police Department, DPS state troopers, etc.) announced they wouldno longer use field drug test kits. These law enforcement agencies cited officer safety and concern over exposure to fentanyl, carfentanil and similarly dangerous substances as the primary rationale for discontinuing the practice. However, not all agencies that have discontinued the practice issued public statements announcing their decisions, making the total number of law enforcement agencies that have abandoned the practice difficult to assess.
However:
For counties that have ended the practice of field drug testing, officers still must make an assessment of whether a particular substance encountered on the scene is likely to be a controlled drug. In Harris County, the criteria to replace field drug testing include but are not limited to: contraband color, contraband texture, the presence of drug-related paraphernalia, demeanor of the suspect, and prior arrests and convictions involving controlled substances of the suspect. It is important to note that relying on officer observations is not a perfect solution, as many of these criteria depend upon the training and experience of the officer.
So, rather than suggest law enforcement cease using junk science field tests, the Commission weakly opined that they should at least follow directions on the packaging. "To the extent field drug tests are still used," according to the report, "they should be subjected to basic quality standards. For example, agencies should ensure against the use of expired reagents, store the reagents in an appropriate environment, and require at least some baseline level of training."
But they knew even as they wrote it that even that would be too much to ask: "because Texas has approximately 1,750 law enforcement agencies of various size and resources, enforcement of these principles poses a particular challenge."
The Commission and law enforcement agencies using this junk science are hoping tech advancements will bail them out before they have to change practices.
There is technology on the horizon - dubbed Raman spectroscopy - that may eventually replace chemical field tests. The report recommended the FSC collaborate with a state bar committee convened by the president-elect of the state prosecutors association to explore it. This is not a perfect solution, the report emphasizes. E.g., the test cannot identify either heroin or pot. Most of its errors, though, are false negatives instead of false positives, according to the report, which is a plus from an innocence perspective.
The failure to condemn the use of inaccurate and unproven forensics is an off-brand misstep for the Commission. Their role is to evaluate science, not policy. Grits had expected more out of this report.
Following Oklahoma's lead, Ohio appears poised to reduce penalties for low-level drug possession (not dealing) at the ballot box. See coverage from Vox, which summarized the provisions in Prop 1 thusly:
Prevents classifying offenses for using, possessing, or obtaining illicit drugs, such as heroin, fentanyl, cocaine, or meth, as felonies, instead requiring they be treated as misdemeanors.
Prohibits jail or prison time for such offenses, unless it’s an individual’s third offense, or more, within two years.
Allows individuals who were previously convicted of such offenses to ask a court to reduce their conviction to a misdemeanor.
Aims to reduce the use of prison time for non-criminal probation violations.
Applies financial savings to addiction treatment programs and crime victim funds.
Allows people in prison, except those incarcerated for murder, rape, or child molestation, to seek sentence reductions up to 25 percent if they participate in rehabilitative programs, up from 8 percent under current rules.
The most recent polling shows the measure with a 48-31 advantage among Ohio voters, with 21 percent undecided. Unless every undecided voter breaks against it, when everyone else supported it by a 5-3 margin, that seems likely to pass. See coverage from the Cincinnati Enquirer, and the impressive list of supporters endorsing the measure.
With voters in red and swing states taking the lead, maybe this issue will become less scary for Texas legislators, who cannot rely on ballot initiatives to take tough decisions off their plates. The same felony-to-misdemeanor move makes loads sense for Texas, both from a fewer-prisons and a how-to-pay-for-treatment standpoint, and has for many years.
The political climate is changing in Texas regarding marijuana, and it won't take too many states' voters passing these sorts of measures before it changes on de-felonization of harder drugs. From both an economic perspective and a crime-prevention standpoint, it just makes too much darn sense.
At the Texas House Corrections Committee hearing this morning, meeting jointly with the Criminal Jurisprudence Committee, Rep. Matt Schaefer asked Judge John Creuzot out of Dallas what is the point of the classification "state jail felony" if the results are poor? Why not have some sort of "Super Class A" misdemeanor that keeps people on probation for two years and just "focus on programming?," Schafer wanted to know, or else make everything a third-degree felony so people would be on supervision longer.
Judge Creuzot, who the Democratic candidate for DA in Dallas and one of the architects of the state jail system a quarter century ago, said he didn't understand what it would mean to get rid of state jail felonies unless the Legislature was going to a) mandate strong probation and b) provide funding. Programming inside state jails had been largely de-funded over the years, he noted.
Criminal Jurisprudence Committee Chairman Joe Moody later elaborated that getting rid of state jail felonies would really mean parsing the code to decide which things should be Class A misdemeanors and which offenses would become third-degree felonies, predicting most offenses would likely go down instead of up.
Grits largely agrees with Chairman Moody, and with Rep. Schaefer's Super-Class-A suggestion. The most important change would be to shift most state-jail felonies - starting with drug offenders possessing less than a gram (Grits would recommend up to 1-4 grams as well) - to Class A misdemeanors, perhaps expanding the amount of time they could remain on probation if drug treatment is necessary, per Rep. Schaefer.
Savings from reduced incarceration could be used to pay for expanded drug treatment and other programming. Indeed, it's hard to imagine another source from which money for treatment might come.
While your correspondent was on a much-needed vacation, the Houston Chronicle's indefatigable Keri Blakinger published a story updating the Texas prison system's efforts to staff rural units, which have up to 49 percent vacancy rates. Her article opened:
The Texas prison system handed out more than $9 million this fiscal year on bonuses to aid recruitment as they grappled with extensive officer vacancies, but department data shows the cash outlay has hardly moved the needle.
Seven months after the state launched a concerted effort to bring down the 14 percent officer vacancy rate, the Texas Department of Criminal Justice still has 3,675 unfilled positions - roughly 30 more than in January when the leadership started tackling the problem.
Despite record hiring bonuses given out to new hires at understaffed facilites, Blakinger reported:
more units are severely understaffed now than last fall. The latest unit-by-unit figures - from May 31 - show that fourteen units were under 75 percent staffed. Dalhart was down to 51 percent staffed. At the Daniel Unit, between Lubbock and Abilene, staffing dropped from from 77 percent in October to only 62 percent of jobs filled in May.
And the notorious Ferguson Unit - where a teacher was allegedly raped by an inmate last year in an incident her lawyers blamed on understaffing - was down to 69 percent staffed.
Of the 29 units with hiring bonuses, 19 - including Daniel, Ferguson and Dalhart - had higher vacancy rates in May than they did in October.
Employees punished alongside prisoners
Blakinger raised the seldom-discussed but potent employment barrier of requiring people to work in un-air-conditioned prison units. Litigation framed the issue in terms of prisoners' health and well being, but the more pressing state interest may be the inability to hire people to work in harsh, unpleasant conditions:
“If they would air condition every unit across the state they would keep more people,” said one officer, who asked not to be named because he wasn’t authorized to speak on the record. “If you as a corrections officer tell your lieutenant, ‘Look I’m hot, I need to go cool down,’ they’re gonna laugh you off the unit.”
Ask yourself: Would you take a job in a small rural town for a low-thirties salary surrounded by convicted felons in an un-air-conditioned metal building? I'm guessing most people reading this would say "No." (And if you would say "Yes," go apply to your nearest prison. They're hiring.)
These various issues compound. Understaffing contributes to a more dangerous and occasionally deadly environment for guards, and the summer heat amps up everybody's tensions, making prisons a more perilous place to work, less inviting to new applicants, and more likely to drive away existing employees.
That's the piece the hiring bonuses can't and won't solve. Former union boss Lance Lowry made that point in the story. “A bonus just gets people in the door,” he said. “We’ve never had a problem getting people in the door - the problem is getting those employees to stay.” That's exactly right. A "turnover" problem is about dissatisfaction of employees who are already on the payroll, not how many people arrive on the front end.
Piddling guard salaries and the limits of prison parsimony
The biggest problems remain low pay and oppressive workplace conditions. IMO the rural settings wouldn't matter and TDCJ could easily fill its positions if prison guards here made as much as in California, for example, where the union is politically powerful and starting salaries are around double what they are here.
Texas spends $3.5 billion per year on TDCJ, which sounds like a lot, but given our highest-in-the-country prison population numbers, we're pretty chintzy when it comes to spending on state prisons, a point I made in the story:
“We already pay less to incarcerate people than just about every other state,” Henson said. A 2015 Vera Institute of Justice analysis showed that Texas has 11.6 percent of the country’s state prisoners, but only accounts for 7.6 percent of prison spending.
“We’re underspending at pretty radical levels,” he added. “If you don’t want to spend more, your options are: incarcerate fewer people. That’s it.”
Marc Levin, vice president of criminal justice policy at non-profit Texas Public Policy in Austin, agreed.
“I think it’s the ideal solution,” he said. “We would obviously want to look at the units with the biggest staffing issues and biggest capital costs.”
Based on the Vera Institute figures cited above, if Texas' proportion of state prison spending matched its proportion of state prisoners - i.e., if we spent the nationwide average amount per-prisoner - we'd spend $5.3 billion per year instead of $3.5 billion.
The pretense of parsimony is a picayune point of pride for many Texas legislators, but it's also the source of most of the prison systems problems. Texas' under-spending comes from several sources, but mainly low guard pay, lack of air conditioning, and dramatic under-spending on inmate health care.
A prescription to match the diagnosis
Grits was further quoted in the story, pointing out that there's only one, real solution to the problem: "to reduce the incarceration levels enough to close more units and this time target units with high vacancy rates for closure." Let's explore that a bit further.
The shortest distance to lowering incarceration levels in Texas is to reduce sentences for non-violent drug offenders. Texas has already adjusted property-theft thresholds for inflation, diverting thousands of low-level theft offenders from prison. And the 2007 probation and parole reforms have likely reached the limits of what can be expected from probation reform: after a decade, local judges and probation departments remain slow to reduce revocations for technical violations or use early-release provisions for successful probationers. Probation departments have economic incentives to keep successful, fee-paying offenders on the rolls and to revoke those who cause headaches, whether or not those folks engage in criminal misbehavior.
Best case: Probation reform may offer medium to long-term savings, but in the short-term would actually require more investment.
That leaves two large categories: drug offenders and people convicted of violent crimes.
While we do over-incarcerate violent offenders, locking thousands of people up long after they've aged out of crime and pose little threat to society, any statute change aimed at reducing incarceration for that group would result in long-term benefits that won't address the immediate crisis. The person incarcerated for ten years instead of 15 saves the state a lot of money, to be sure, but we wouldn't see any of the savings for a full decade after they were sentenced.
By contrast. reducing penalties for low-level drug offenders - say, making possession of up to four grams a Class A misdemeanor instead of a felony - would save lots of money in the immediate, biennial state budget, and even more in the long term. Legislators only view the budget in terms of a two-year time horizon (since many of them won't even be legislators ten years from now). So politically, out-year savings are mostly irrelevant at the capitol. Altering drug sentences would have the biggest short-term impact on both decarceration and budget savings, allowing the state to move toward immediate closure of several units and solving numerous, nagging problems at once.
That's the only real alternative for reducing incarceration enough in the near term to help Texas with its rural-prison understaffing problem. New-hire bonuses are a band-aid, at best, and won't stop staff from wanting to leave these hot, dangerous, underpaid jobs.
Grits has written how Texas' drug-overdose problem related to meth and other stimulants is a bigger challenge here than the opioid crisis that's gripping many eastern states. So I was interested to see an op ed from the Austin Statesman by Erich Schneider finally address Texas' specific situation. Concerning opioids, here's where we stand:
Centers for Disease Control (CDC) data shows that opioid-related deaths in Texas have indeed risen slightly – from 4.37 to 4.55 deaths per year per 100,000 residents – between 2006 and 2016. But in 2006, the Texas rate stood at 85 percent of the national average; in 2016, we were at just 35 percent of a tragically higher nationwide death rate.
The bigger growth occurred among overdoses by cocaine, meth, and stimulant users:
Over the same interval, Texas deaths related to cocaine, methamphetamine and other psychoactive stimulants have risen from 3.86 to 4.82 per 100,000. While some deaths were due to combinations of drugs and contribute to both statistics, it seems these classes of drugs are comparably lethal. Yet, they claim fewer lives than alcohol: CDC estimated that 27.9 deaths per 100,000 Texas residents were attributable to alcohol in 2014.
So that's a four percent increase in the rate of opioid deaths over the last decade, and a 25 percent increase in cocaine/meth-related deaths. And alcohol-related deaths are a FAR greater problem than illegal drugs.
By contrast, "Ohio, for example, is facing an opioid-related death rate of 31.9 per 100,000 residents – a staggering figure that rises above even our own state’s alcohol-attributable death rate." So clearly, they're facing a radically different situation than we are.
As Grits has iterated repeatedly, the main reason we haven't seen the same spike in opioid deaths is the predominance of black-tar heroin in this market that does not mix easily with fentanyl:
One factor that has driven the explosion of opioid deaths in the past few years is a spike in the availability of fentanyl, a synthetic opioid as powerful as it is deadly. To use fentanyl is to play with fire, and addicts often do so unwittingly, since fentanyl might have been added to their heroin. Those who survive develop a fierce attachment to its potency, so fentanyl appears to be here to stay. And many pill-users move to heroin once their habit becomes too difficult to support by other means.
There’s one catch: Fentanyl is usually distributed as a powder. For that reason, it doesn’t mix well with the Mexican black tar heroin that predominates in the Western U.S., including Texas. It mixes easily, though, with the South American powder heroin used on the East Coast.
It is no coincidence that so many of the lives lost over the past few years have been in the East. Dividing the states into those lying east and west of the Mississippi River provides a vivid illustration. In 2006, there was no large-scale geographic pattern to the nascent opioid epidemic. Deaths averaged 5.21 per year per 100,000 people in the Western states and 5.14 in the East. By 2016, the death rate in the Western states had ticked upward to 6.97, while in the East it had soared to 17.4. The deadly presence of fentanyl on the east side of the heroin divide is evident.
The author makes a welcome pitch for making policy based on data instead of media hype:
instead of clamoring for funding solely to fight the opioid wars here — when the numbers show that other places are in more dire need of it — let’s take another look at which drugs are actually killing people in Texas, including alcohol, and create a broad-based strategy that will save more lives.
Grits agrees, but would add that most of the policies needed to reduce overdose deaths aren't specific to a particular drug type. For the most part, solutions on overdose deaths are the same no matter which drugs we're talking about.
Texas legislators continue to discuss the wrong problems when it comes to addiction and overdoses, focusing on opiod overdoses and fentanyl - which aren't as prominent here as in other parts of the country - when the bigger problem in Texas is meth. (Most fentanyl deaths involve mixing it with heroin, and the black-tar heroin sold in Texas and California is too low purity to mix with fentanyl.)
Digging into the data, Texas' drug addiction problem is less deadly than in the hardest-hit parts of the country, and more focused on speed than smack. Nationwide, heroin overdoses now outnumber gun homicides as cause of death, but in Texas, murders continue to slightly outpace the total number of overdose deaths.
IMO this obfuscation of state-level trends is happening because legislators are relying on law enforcement as experts instead of addiction researchers and public health professionals. Texas DPS and other agencies are picking up national memes and touting them, even if they don't track with Texas' experience.
That said, I was pleased to see that the committee is considering one solution that Grits worked hard on a couple of sessions back: the Good Samaritan law Gov. Abbott vetoed at the end of his first session as Governor in 2015. Reported the Austin Statesman:
[State Rep. Four] Price said it’s possible lawmakers could craft a new good Samaritan law, which protects people who call police to report a drug overdose from prosecution for some offenses. A similar bill passed the House and Senate with wide support in 2015, but was vetoed by Gov. Greg Abbott because it did not “include adequate protections to prevent its misuse by habitual drug abusers and drug dealers.”
New data presented by the Texas Department of State Health Services on Tuesday showed similar laws in other states have resulted in as much as a 15 percent drop in opioid overdoses in the past five years, despite nationwide increases. The laws also do not appear to increase the number of drug users, the data shows.
“It indicates that there is some effectiveness if implemented and crafted effectively,” Price said. “That is something we should continue to review.”
Keep in mind that there were 1,254 overdose deaths in Texas in 2016 - 715 from meth and 539 from heroin. If a Good Samaritan law would have reduced that number by 15 percent, that means 188 people died that year because of Governor Abbott's ill-considered veto! That means hundreds of lives would have been saved by now if Gov. Abbott had signed the law in 2015.
IMO, vetoing the Good Samaritan bill was one of Greg Abbott's worst decisions as Governor.
Having produced a special podcast promoting #cjreform planks in the Texas state GOP party platform, it's only fair that Just Liberty return the favor for the Dems. Here's a discussion among Democrats and liberal reformers about justice-reform planks being proposed to the Democratic platform.
What are the key justice priorities for Democratic constituencies this year? Reform leaders say transparency and accountability for police misconduct, rolling back mass incarceration and the drug war, and eliminating regressive government policies that mainly harm the poor.
This special episode promotes reform planks proposed to the Texas state Democratic platform in 2018 via local precinct resolutions. It features original music and interviews with state Rep. Gene Wu, Austin Justice Coalition executive director Chas Moore, as well as Sukyi McMahon and Kathy Mitchell with Just Liberty.
Responding to misplaced attention by Texas legislators and law-enforcement leaders on opiods, Grits had pointed out earlier this year that the problem with meth addiction and overdoses were actually worse. Politicians and the Texas media were responding to national stories about opiod-related overdoses and the rise of fentanyl as a recreational drug based mostly on problems in Northeastern and Midwestern states that didn't exactly apply to Texas.
Now, Todd Ackerman at the Houston Chronicle has produced the first MSM coverage I've seen acknowledging that fact. Here are the key data points from the story:
The Substance Abuse and Mental Health Services Administration estimated the number of Americans who used meth in the past month at 667,000 in 2016, the latest year for which statistics are available. That’s up from the 2008 low point of 314,000.
At the Mexico-U.S. border, agents are seizing 10 to 20 times the amount they did a decade ago. In 2016 in Texas, DEA officials seized more than 45,000 items of meth, compared to less than 6,000 items of heroin. The lab that identifies the drugs does not provide the item’s overall weight, but a Houston DEA official said that 7.5:1 ratio is consistent with the amount of the two drugs they seize.
Deaths, too, are on the rise. Nationally, nearly 6,000 people died from meth in 2015, a 255 percent increase from 2005, according to the Centers for Disease Control and Prevention.
Texas’ numbers are no less unsettling. In 2016, meth killed 715 people in the state, compared to heroin’s 539. Another 8,238 meth users were taken to Texas health department-funded substance abuse treatment centers, compared to 8,238 heroin users. Texas poison centers received 320 calls for help involving meth and 254 for heroin.
The Texas meth epidemic also appears intertwined with increases in sexually transmitted diseases, including HIV, according to Jane Maxwell, a University of Texas-Austin drug abuse researcher. She cites a 2015 CDC survey of HIV-positive homosexual men that found 86 percent of respondents in Houston and 91 percent in Dallas reported that they’d injected meth in the past 12 months. She said a recent state report on HIV trends shows such use by homosexual men is doubling HIV risk factors.
California, FWIW, faces a similar dynamic to Texas because their heroin market is dominated by "black tar" heroin that's not easily mixed with fentanyl.
In recent years, drug-possession arrests have been the only growth area for Texas prosecutions. As Grits reported recently, "Texas has just gone through an era when crime declined quite a lot, and the number of case filings - except for drug cases, which accounted for 32 percent of felony charges in 2017 and 21 percent of misdemeanors (p. 26 of the pdf) - has mostly gone down with it."
At the same time, we've militarized the border and sent so many state troopers down there that the locals feel overpoliced and the rest of the state has witnessed reduced DWI enforcement. So we're arresting more people for drug use, and still, more people are dying. The problem is getting worse.
From a policy perspective, whether the overdose increase stems from meth or opiods, these numbers tell us two things: 1) The War on Drugs is failing. Again. Still. As always. Given all the resources Texas is committing to its "border surge" and prosecuting penny-ante drug users, the fact of increased deaths and lower prices related to illegal drugs flowing in from Mexico tells us that an enforcement-only approach won't work. And 2) increased overdose deaths and disease related to needle sharing argue strongly for "harm reduction" approaches like the Good Samaritan law Gov. Abbott vetoed or charity-based needle exchange like the bill passed by the the Texas House in 2015.
Texas leaders in recent years have begun to speak more frequently about being "smart on crime." This is definitely an area where Texas could be smarter.
Does God have a Texas accent? Mandy Marzullo and I address this and other pressing questions on the latest edition (May 2018) of Just Liberty's Reasonably Suspicious podcast. Give it a listen!
Here's what we discussed this month:
Top Stories
Prosecutors flailing with Twin Peaks biker massacre cases.
Interview
Scott talks to David Safavian of the American Conservative Union Foundation on why Texas should reduce penalties for low-level drug possession from a felony to a misdemeanor.
Suspicious Mysteries
Why have the number of arrests for DWI and drunkenness plunged in Texas since 2010?
Death and Texas
On the use of forensic hypnosis in death penalty cases.
Stop the Train
Promoting Just Liberty's new decarceration campaign and jingle.
The Last Hurrah
Russian troll farms most successful projects were Blue Lives Matter posts.
With San Antonio launching a pilot program, what will it take to approve needle exchange programs in Texas?
Texas' "subjugation rate" (the number of people in prison, jail, on probation and on parole) declined from 1 in 22 a decade ago to 1 in 41 today. What is the cause?
Grits took a quick look at the data for felony drug possession cases in Texas District Courts. On. p. 112 we see that District Judges in Texas generated just more than 25,000 new felony drug possession convictions in 2017. Of those, nearly all were sentenced to incarceration of some sort:
Sentences Related to Felony Drug-Possession Convictions in Texas, 2017
Prison: 5,281
State Jail: 7,243*
Local Jail: 8,554
Probation/Community Supervision: 3,859
Shock probation: 15
Fine Only: 58
Other: 410
Only 15 percent of drug-possession convictions resulted in a probated sentence in 2017, according to these data. (Clarification: these sentencing data are only for convictions and do not include cases resulting in deferred adjudication. See the comments for a discussion.)
In an additional 8,557 drug cases, a defendant with a prior drug conviction was revoked to prison in 2017. So probation revocations accounted for about 40 percent of drug offenders entering TDCJ last year.
*State Jails are Texas' euphemism for prisons which hold low-level offenders who committed what are known in the Penal Code as "State Jail Felonies," the equivalent of a 4th degree felony. The maximum sentence is 2 years, most offenders stay just 6-9 months, and there is no supervision upon release. Offenders who've been in state jails notoriously have the highest recidivism rates of all Texas prisoners.
The Texas Smart on Crime Coalition released a new poll today, let's review the highlights.
The most impressive finding in their survey of GOP primary voters? A whopping 76 percent supported reducing small-time drug possession penalties to a misdemeanor, following the lead of Oklahoma voters in 2016.
Legislation to that effect has been filed each of the last two sessions, but probation directors killed the plan. With polling numbers like these filling out it sails, however, some version of the Phil King/Senfronia Thompsonlegislationwill certainly be back. Such a bill is also the shortest distance to closing more prison units and reducing long-term costs at the Texas Department of Criminal Justice.
In a related finding, 72 percent of Republican primary voters agreed that, "Changing certain crimes from felonies to misdemeanors will make our communities safer by allowing law enforcement to spend less time arresting people due to drug addiction and more time fighting more serious and violent crime."
The people remain way ahead of the politicians on these topics.
Finally, apropos of Grits' last post, "71% of GOP primary voters favor changing the way technical probation violations (such as missing a meeting with a probation officer, not committing a new crime) are handled, so those who have a minor infraction are not incarcerated but instead held accountable through enhanced curfews, electronic monitoring, or increased check-ins."
Reasonably Suspicious: Hosted by Scott Henson and Mandy Marzullo
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