Understaffing at Texas prisons reaching dangerous levels: #txlege must close, consolidate units

Whether due to COVID or some other reason(s), vacancies among prison staff at the Texas Department of Criminal Justice have reached disturbing levels, according to this report from the agency. Thanks to Keri Blakinger of the Marshall Project for passing it along. 

Regular Grits readers know TDCJ has chronically short staffed several units in recent years, but the number with serious shortages is higher than any time during the two decades your correspondent has been tracking the agency. 

In the past, when correctional officer (CO) vacancies would approach the ~4,000 mark, agency leaders began talking about a crisis. Today, vacancies are up to 5,500 systemwide, with 14 units reporting more than 40 percent of positions unfilled. If the press and public weren't distracted by eighty 9/11s worth of COVID deaths, this would be headline news.

The only saving grace: TDCJ has seen prisoner levels plummet this year to 21st century lows. But unless the agency closes more units and consolidates staff, that won't solve the understaffing problem.

We still don't fully understand the cause of the prisoner drop at TDCJ and whether it should be viewed as sustainable. For a while, TDCJ stopped taking prisoners from county jails. But those backlogs have been eliminated. Blakinger hypothesized that a reduction in parole revocations might explain it, but the numbers didn't bear it out.

Another hypothesis: Court systems slowed and fewer trials meant fewer plea bargains, meaning it's possible many more cases are awaiting adjudication than normal. Whether that means there will be a surge in admissions at some point in the future is anybody's guess.

Alternatively: Radical crime drops were reported this spring and, even though murder rates have reportedly increased over the summer, many types of crime may have continued to be dampened by the pandemic, including some lesser violent offenses. Or, the change may result from police enforcement patterns: Perhaps they're not performing as many hand-to-hand drug sales, for example, or maybe it relates to the reduction in public contacts at traffic stops thanks to reduced traffic? Perhaps police are initiating contacts with the public less frequently because of the virus. Who knows? It's been a crazy weird, year.

In a red-ink budget year, now's the time for the Texas Legislature to double down on these successes and close another half dozen prison units. (The state has closed 11 since 2013.)

As insurance against the possibility that prison populations might go back up, it'd be best if they combined such cuts with additional decarceral policies: One that comes to mind as low hanging fruit might be to eliminate testing for marijuana for probationers and parolees. In the wake of Texas' hemp statute, arrests for pot possession have fallen sharply statewide. Few people think marijuana use justifies imprisonment (possession of small amounts is only a misdemeanor), so there's no good argument that people under supervision should go to prison for it. Probation and parole revocations are a significant portion of TDCJ admissions, and even a marginal reduction in those categories would help sustain these lower prisoner levels.

Make Grits Philosopher King and there's much more that could be done. But it's perhaps far-fetched to imagine Texas will see significant criminal-penalty reductions in 2021. Already, dozens of new crimes and penalty increases have been filed as bills at the Texas Legislature. And #cjreform efforts at the Lege completely stalled out in 2019. Certainly, Grits sees little prospect for drug-penalty reductions like we've seen in Oklahoma, Utah, Oregon, and other states. And the Lege seems to have abandoned efforts to rein in technical probation revocations. Except for a handful of policing bills (e.g., the Sandra-Bland statute on Class C arrests and the George Floyd Act), and maybe some of debtors-prison stuff, not much #cjreform legislation enters the 86th session with significant momentum.

Regardless, at this point, it's not an exaggeration to say Texas prisons are dangerously understaffed and nothing the agency has done for the past decade has caused staffing shortages to abate. Moreover, COVID makes prisons an even less inviting and more dangerous workplace (certainly the virus is a greater risk to CO's lives, by far, than prisoner violence).

Closing several more units - ideally targeting remote, rural units which are hardest to keep staffed - really is the only rational management move here, and it should have been done long ago. Past prison closures failed to take into account staffing shortages, closing well-staffed units and leaving these rural outliers to fester. Now, those poor decisions are coming home to roost.

Manley's Men: Austin police chief's defenders don't have many valid arguments

Apparently, Austin Police Chief Brian Manley is feeling the heat. His allies have created a sparsely populated Facebook group (in which dissenting views are banned) to support him, and the Greater Austin Crime Commission issued a letter, with a memo from Manley attached touting his ostensible accomplishments, attempting to defend his record.

The Facebook group is full of pablum, but I thought it worth examining the Greater Austin Crime Commission letter to evaluate their arguments. 

It starts off with facts that don't necessarily speak in Chief Manley's favor. "Violent and property crime ... increased significantly downtown and in the entertainment district. Response times were slower, and traffic fatalities increased." One could also have noted that property crimes went up last year as well.

Considering that Chief Manley, in his attached memo, claimed that "Austin has remained one of the safest cities in which to live, work, and travel," those trends seem to contradict him. In reality, both things can be true. Austin has long been and remains a very safe city. But it has become less safe on Manley's watch, if these metrics are to be believed.

My own sense is that Austin crime increases are, in fact, within normal ranges of fluctuation and that Austin's crime rate remains near generational lows. But since Chief Manley himself has touted violent crime increases, spuriously attempting to link them to changes in policies regarding Class C misdemeanor arrests, from a political perspective, he gets to own them. 

The GACC goes on to give the police department credit it doesn't deserve for revamping training at the academy: "the police department is undergoing a comprehensive training audit, responding to the issues raised in the recent independent inquiry into bias and racism, and investigating a fatal officer-involved shooting. Confronting these problems and making significant improvements is what the community expects and what the department is doing."

In fact, that overstates what the department is doing. In reality, Chief Manley had insisted on going forward with a new police academy in June without completing the audit mandated by the Austin City Council in December. City Manager Spencer Cronk overruled him, pushing the academy back until mid-July when the audit is scheduled to be completed. And even that is an unrealistic and overly optimistic timeline. Manley does not deserve credit for being forced to comply with City Council directives that he intended to ignore.

The GACC wants to absolve Chief Manley for his role in condoning and concealing racism allegations at the highest levels of departmental management, instead blaming the police-union president for his part in the mess. But more than one thing can be true. This blog has insisted the union boss was partly to blame. But Chief Manley was uniquely culpable, and the Tatum report singled him out for failing to act despite numerous opportunities to do so. In particular, the author concluded:

Tatum Law was able to establish that Chief Manley had reason to inquire as to AC Newsom’s conduct based on a self-report of text messages that were troublesome, about which AC Newsom indicated he would leave the Department if they became public, and two separate allegations of racist text messages and comments occurring about one month apart. The October 7, 2019, email received by Chief Manley alleging similar facts to those later alleged in the October 30, 2019 complaint about AC Newsom’s use of the derogatory term “nigger” in text messages to refer to African Americans provided sufficient information to suggest that AC Newsom was in violation of policy for review or investigation. Chief Manley did not send these allegations for review or investigation.

The GACC letter mentioned another development that hasn't yet been reported in the local press: The Austin Police Association is in the process of conducting a no-confidence vote among its members regarding Chief Manley. (The union and reform groups don't agree on much except that Chief Manley needs to go.) The letter accuses the union of issuing a biased survey intended to undermine the Chief - well, yes, a no-confidence vote from his employees would undermine him! OTOH, his employees don't have to vote for it. If they do, the City Manager should perhaps consider that a meaningful data point.

To be clear, the union vote shouldn't be definitive. No-confidence votes by police unions for a chief can be highly politicized and don't always reflect the best interests of the community. But combined with the wide array of community organizations, including many which aren't expressly justice-reform groups, who already have called for the Chief's ouster, it helps complete a picture of an administrator who has lost the faith of the community he serves.

The Greater Austin Crime Commission over the years has been an organization dedicated to promoting police as a solution to every social problem. Mainly, they just want ever-more cops hired and deployed downtown, even though arrests and jail bookings are way down and there's less for Austin patrol officers to do (particularly during the COVID era) than at any time in recent memory.

In this case, they've taking a different tack. They suggested "that Chief Manley be given a deadline of October 1, 2020 to demonstrate substantial progress in operational and policy changes," at which time the City Manager should make a formal recommendation about his future. In the meantime, GACC pledged "to meet with other criminal justice reform, neighborhood, and social justice groups to review and resolve concerns with the police department."

If they want to review the problem, they should start by reading the letter from community groups calling for Manley's ouster. It's quite detailed and specific. And here's a supplemental compendium of reasons he deserves to be fired. Only a group of powerful white guys embodying the downtown corporate establishment could step in at this late hour with such confidence that they can "resolve" discontent expressed across so many vectors. Nonetheless, acknowledging there could be any problem at all is a new message for these folks.

The GACC's statement defends Chief Manley, but in important ways it falls short of the whole-hearted endorsement Grits would normally expect from this stalwart, pro-cop crew. The difference between the GACC and everyone else , in the end, appears to be a matter of degree and emphasis. They suggest Manley be given until Oct. 1 to "demonstrate substantial progress in operational and policy changes" while community groups with more direct experience trying to enact that "progress" say new leadership is needed now. The GACC criticized community groups for giving short shrift to "the considerable work" listed by Manley in his memo, without commenting on whether that work has been productive. They called for better communication between management and the union; community groups have called for better communication with everyone. 

Chief Manley's attached memo added little to their argument. Mainly, it described out-of-context actions by the department that for the most part are unresponsive to the criticisms being levied against him. In several instances, he attempted to take credit for things he was forced to do and then did poorly. E.g., a program funded by the City Council to substitute a medical response instead of a police response to mental health calls has largely been a bust because APD routed very few calls differently. Of tens of thousands of mental health related calls, only about 200 have been diverted through a qualified mental health professional rather sending a standard police patrol.

Other examples elided specific criticisms being made: For example, the City Council directed an evaluation whether to make the crime lab independent after a series of scandalous failures at its DNA division. According to the Tatum report, Chief Manley, when he was chief of staff to Art Acevedo, intervened to stop more aggressive oversight of the DNA division, which soon thereafter was closed and essentially put into receivership. Manley includes a long list of reforms his agency was forced to do after the DNA division failed. But he doesn't identify a single step taken toward evaluating whether Austin should have an independent crime lab, which is what the City Council asked for and national best practices recommend.

 

In another instance, Manley suggested that, 'The Department worked with the Office of Police Oversight to create the policy and procedures for releasing critical incident videos and related information." But the OPO put out a formal objection to Manley's policy changes on bodycam enforcement, declaring, "These changes delegitimize the discipline process by trivializing conduct that has historically been treated as a significant policy violation." The Director of the OPO has also complained of"obstructionist tendencies of APD's Internal Affairs (IA)" department and alleged that APD administrators have "continued to allow investigators in IA to obstruct oversight staff."

Over and over throughout his memo we find similarly disingenuous claims. For example, Manley writes, "chaplains who perform same sex unions and relationship counseling have been made available" thanks to a new volunteer chaplain program, but he doesn't mention that was only necessary, according to the above-cited Tatum report, because of homophobic policies by the full-time chaplain against sanctioning such unions.

Another one: "The Department has partnered with community advocacy groups, such as MEASURE, to provide cadets with diversity and equity training facilitated by community members." MEASURE, it turns out, is one of the community groups which has called for Manley's ouster.

This memo was a smokescreen and any close reading of its details finds more reasons to oust the chief than to keep him. If these arguments are the best that Chief Manley and his supporters can come up with as to why he should keep his job, it looks to me like he's in a lot of trouble. And that trouble could come before October.

Top Ten Failures of Austin Police Chief Brian Manley: A Compendium

After more than two dozen community groups called for the firing of Austin police chief Brian Manley and assistant city manager Rey Arellano in the wake of the killing of Mike Ramos, some apologists for the department have portrayed this position as impulsive and hot-headed. Grits finds this rather insulting, given the long list of grievances to which advocates were reacting.

OTOH, I realize that local Austin media coverage of the police is so shoddy and one-sided, most folks likely have never seen the full case made. So let's do that now. The issues go much, much deeper than this one shooting.

Mike Ramos was an unarmed black man who video shows was standing next to his car with his hands up when he was first shot with a bean-bag round from a shotgun by a rookie cop named Mitchell Pieper, three months out of the academy (more on that in a moment). Ramos dove back into his car and tried to drive away from police, but a second officer - Christopher Taylor, who killed someone else under questionable circumstances less than a year before - fired three shots with a rifle. Ramos died from his wounds.

Ramos killed because of policy change by Manley
In 2012, reported the Austin Statesman, then-Chief Art Acevedo changed APD policy to forbid officers from shooting at fleeing vehicles unless they were part of a unit specifically trained to perform that function, or the person fleeing had allegedly inflicted serious injury or death (not the case here). After becoming chief, with little fanfare and zero public discussion, Brian Manley changed that policy to fully authorize such shootings by any officer, anytime. If he had not done so, Mike Ramos likely would be alive today.

Resistance to police-academy reforms
The fact that Officer Pieper, a rookie three months out of the academy was the first to fire on Ramos - even if using a bean bag round - instead of engaging deescalation tactics, speaks to another major departmental failure under Manley: Failure to reform the department's cadet training practices. Ten former cadets have sued the department alleging they were treated abusively and taught to use abusive tactics. After allegations of racism arose at the agency last fall, the city council passed a resolution directing the APD to hold off on launching a new training regimen until investigations were performed analyzing officers' internal communications and social media postings for evidence of racist bias, analyzing the basis for scores assessing cadets, a comprehensive assessment of recent use of force incidents, and an assessment of litigation against the department related to use of force incidents over the last ten years.

The resolution called a halt to the planned, June cadet academy until curriculum changes were made, with community participation in the new training reforms. But Chief Manley and the City Manager are insisting on moving forward with a police-academy class in July based on a fancifully optimistic timeline for finishing their analysis, developing a new curriculum and soliciting public participation in the process. Clearly Officer Pieper's training did not prepare him to manage situations like he found himself in with Mike Ramos using any method but violence. Regardless, APD leadership seems hell bent on plowing ahead with the next cadet class.

Finally, after state law in 2017 mandated police officers receive deescalation training, Austin PD chose to separate deescalation discussions from its "use of force" module in academy classes. Rather than teaching deescalation as a way to minimize harm from use-of-force tactics, which is how national experts view it, it's taught separately in a "communications module." Local advocates and the cadets suing the department have complained about this, but such criticisms have fallen on deaf ears.

Manley's disinterest in racism allegations led to abuse of system, feelings of betrayal among officers, public
After allegations emerged that high-ranking APD officers used racist language among themselves and via text messaging, the city hired an attorney to independently investigate the matter. This attorney discovered that, "By several accounts, [Assistant Chief Justin] Newsom's use of racist language was well known throughout the Department as was the use of such language by other officers who were known to be close friends with AC Newsom and used such language openly and often." In particular, Newsom had gone to Chief Manley to tell him he was afraid certain text messages from him might be revealed in ongoing litigation, and informed the chief that he would resign from the force if they were made public.

But Manley did not initiate an investigation, even after receiving written complaints making related allegations. Wrote the investigator, "Chief Manley had reason to inquire as to AC Newsom’s conduct based on a self-report of text messages that were troublesome, about which AC Newsom indicated he would leave the Department if they became public, and two separate allegations of racist text messages and comments occurring about one month apart." As a result, Newsom was able to resign and receive full benefits and the incident could not be investigated by Internal Affairs. Numerous officers told the investigator this caused a "feeling of betrayal" and they considered Newsom's resignation "an abuse of the system." But it happened because Manley failed to act.

Blaming rape victims when APD was caught fudging sex-assault stats
While Manley was chief of staff under Art Acevedo, the department removed the head of the Sex Crimes Unit because she refused to change case files to claim detectives had closed the cases when they had not. Later, after Manley was Chief, a national podcast reported on her ouster, revealing that Austin PD had improperly closed numerous rape cases as "exceptionally cleared." Manley responded by blaming the rape victims, saying the problem was they wouldn't cooperate with police. But when the Texas Department of Public Safety analyzed a sample of cases, they found a third of them had been improperly closed. What was improper about it? Results were miscategorized to say the victims chose not to cooperate when that wasn't true. As the political pressure mounted, consultants were hired to study the problem. Assistant city manager Rey Arellano announced their recommendations wouldn't be ready until 2022. There has been zero accountability for this embarrassing episode, aside from ousting the police sergeant who refused to fudge the numbers in the first place.

APD complaint process changed to undermine transparency, reforms from new police contract
Earlier this year, Manley revised the department's complaint process in ways that minimized significant transgressions and reduced transparency around police misconduct. Farah Muscadin, who leads the city's Office of Police Oversight, wrote in a letter that the changes created "new obstacles designed to trivialize substantive complaints and disguise them under newly created categories that APD has created against OPO's recommendation." She also complained of "obstructionist tendencies of APD's Internal Affairs (IA)" department and said APD administrators "continued to allow investigators in IA to obstruct oversight staff." The response to these allegations from APD and city management? Crickets. 

Downgrading bodycam violations and hiding them from the public
Also earlier this year, Chief Manley changed departmental policies to downgrade violations of the department's bodycam policy (basically obscuring or turning off cameras to avoid recording alleged misconduct) and made those violations much less transparent. Again, Muscadin issued a formal objection: "These changes delegitimize the discipline process by trivializing conduct that has historically been treated as a significant policy violation." The revisions made violations of the policy subject only to oral reprimands. Since the new police contract had for the first time made written, but still not oral, reprimands public records, this also amounted to a move to radically reduce transparency around these violations.

In addition, last year, at the behest of the city council, APD pledged to revamp its bodycam video-release policy, a process in which various community groups spent months providing input. Those changes then laid dormant for many months and were never finalized. Only in the last few days, after it became clear that the chief's job is now on the line, has Manley's chief of staff begun reaching out to say they may, still, finally implement a video-release policy after all. We shall see.

Snubbing the Office of Police Oversight
Not only did Chief Manley implement terrible policies on public complaints and bodycams, he did so in a way that intentionally avoided allowing the Office of Police Oversight to meaningfully comment on the policies before they were implemented. In the case of the complaint policy, according to the above-linked objection, Manley sent Muscadin a copy of the proposed policy on a Tuesday with no prior notice and gave her 24 hours to respond, a timeframe with which she could not reasonably comply. In the case of downgrading bodycam violations, the OPO was notified of the policy change on the same day it took effect.

In general, as mentioned above, Muscadin feels Manley has "continued to allow investigators in IA to obstruct oversight staff" from her office. Muscadin negotiated with APD leadership to formalize how the relationship between her office and IA should work under the terms of the new contract, developing proposed Standard Operating Procedures (SOP). Those SOPs have been sitting on Manley's desk, unsigned, for nearly a year.

When Manley was hired, City Manager Spencer Cronk issued a memo detailing how the chief would be evaluated in the future. One of the elements cited was that Manley should "[b]e supportive of ways to enhance police oversight and officer accountability opportunities within and outside of any meet and confer agreement." Cronk expressed his expectation that, "The Chief is supportive of the current Police Monitor's role and expanding that function in the future." Obviously, those expectations have since been dashed on the rocks. Now, we'll learn whether this was ever really something the city manager cared about, or if it was included in the memo just for show. Manley has done little but undermine and snub the OPO at every turn.

DNA lab screwups, no progress on independent crime lab
In fall 2016, in the wake of Austin's DNA lab being closed for incompetence, Manley hired a chief forensic officer, whom he personally interviewed, who it turned out was academically unqualified for the job. No one at APD had bothered to evaluate his academic record.

During the same period, the Austin Chronicle reported that the City Council directed the City Manager to assemble a "team of experts" to "assist Council in considering the benefits of an APD-run lab as opposed to one that would operate outside, independent of the department." This is a best practice which was a central recommendation of a 2009 report on forensic error from the National Academy of Sciences. Despite pledges by assistant city manager Rey Arellano, that analysis has never been produced. In addition, the City Council authorized funding for a consultant, the Quattrone Center, to make recommendations for future reforms and best practices related to the DNA lab. Arellano told the council in a memo the report would be ready by September 2019, but it was never released and prospects for reform have subsequently stalled.

Notably, the Tatum report revealed that Chief Manley, while chief of staff to then-Chief Art Acevedo, directly intervened to stop the commander over the DNA lab from looking into problems with that division, ordering him to "leave it alone." Manley acknowledged he had done this, portraying the incident as a conflict of personalities between the commander and the crime-lab director. But the fact that mere months later the DNA lab was closed in disgrace indicates that was at best a bad judgment call and at worst a cover up for serious crime-lab failures.

Austin PD to overdosed addicts: Just die
Austin has recently seen a spike in drug overdoses, with five overdose deaths in just two weeks in April, reported KXAN. (There were 323 overdose deaths in Travis County overall in 2019.) But Chief Manley this spring returned a donation of Narcan - a nasal spray that effectively, instantly counters the effects of an overdose - that was intended to give officers in the field tools to save these folks. Instead, he insisted only paramedics should administer it, although police around the country have employed it with no problems. The donation, worth a quarter of a million dollars, was enough for every officer on the force to be equipped with this life saving drug.

APD promoting harmful drug-war policies

Under Chief Manley, APD's scorn for drug addicts went beyond just not caring whether they lived or died. Recently, the Texas Harm Reduction Alliance, the Texas Criminal Justice Coalition, Grassroots Leadership, and the Civil Rights Clinic at the UT Law school backed out of participation in a city-county grant application aimed at promoting pre-arrest diversion in drug cases, claiming Austin PD was acting in bad faith. Here's a notable excerpt from their email:

In 2018, our organizations began a two-year project to better understand why Austin/Travis County produced a 66% increase in new felony drug possession cases within a five-year period despite no discernible increase in the drug prevalence rate. Our intention was to identify the locations and circumstances where pre-arrest deflection programming would have the greatest impact on reducing arrests and connecting people with meaningful harm reduction services. We remain committed to that goal, and we are grateful to have had the opportunity to work with city/county officials on a new vision for addressing substance use within our community.

What our study demonstrated, however, was that the increase in drug arrests was generated through police practices long believed to exacerbate racial disparities. Moreover, the arrests resulted in lengthy periods of detention, loss of income, increased homelessness, loss of immigration status, and collateral consequences that create lifelong barriers to employment and housing. In short, our study showed very clearly that the criminal legal system actors were doing harm.

Yet, the tone and content of the grant application shifts the responsibility entirely to the individual at risk of arrest for drug possession, not to the system actors who have done such harm to people suffering from substance use disorder. We provided lengthy comment on the current draft, but we simply do not see how these issues can be addressed satisfactorily before the grant application is due.

We believe that it is time to press reset. We urge the Austin City Council and City Manager to take decisive action to change the culture of law enforcement in this city.

Grits is limiting this to a top-ten list but could easily go on. Undermining the city council's homeless measures in public statements instead of implementing their directives. Continuing to arrest on low-level marijuana charges after the county attorney said he would not file charges in such cases. The fact that the department has not posted a use-of-force dataset online - a practice implemented by his predecessor - in more than two years. Declining clearance rates for property crimes, which have worsened on his watch. The continued de-prioritization of civilian staff in budgeting while pushing to hire more uniformed officers who end up doing clerical work because they have little support. The list could continue for quite a while. Perhaps in the future I'll come back to add a Part Two to this post.

To Grits, though, just the failures documented here justify the City Manager firing Brian Manley and seeking out a chief more in tune with the Council and community's values and priorities. As so many local organizations opined in their letter last week, it's time for this man to go.

Police shooting triggers calls for widespread culture change among Austin PD leadership

"Off with their heads," the Queen of Hearts famously declared in Lewis Carroll's "Through the Looking Glass."

Yesterday the Austin Justice Coalition, more than two dozen other community groups including Just Liberty, and numerous other community leaders (many of them appointees to city boards and commissions) made that same declaration, calling for the firing of Austin police chief Brian Manley, his chief of staff, the assistant city manager in charge of public safety, and for the reassignment of city legal staff advising the department.

See the letter here, and some initial press coverage. I'd encourage anyone interested in the topic to read the whole thing, it conveys quite a compelling indictment of policing in this town, including a litany of specific complaints against the Austin PD leadership team.

The letter was issued in the wake of Austin PD killing a man named Mike Ramos on Friday evening, although the critique of the department was much more wide ranging than just that incident.

Ramos was standing next to his car with his hands up when Mitchell Pieper, a rookie officer three months out of the academy, fired a shotgun at him using a bean bag round. Ramos retreated into his car and tried to drive away when another officer, Christopher Taylor, fired three shots with a rifle, killing him. Taylor, who had been on the force for five years was involved in another questionable shooting at a downtown Austin condo in 2019.

Notably, former Chief Art Acevedo had forbidden officers from shooting at moving vehicles in 2012 unless they were part of a unit specially trained to stop vehicles. But Chief Manley reversed that policy, one of a series of regressive policy changes he's made in recent years. As a result, Mike Ramos is dead and, if there's any justice in the world, Manley should lose his job.

The fact that a fresh-out-of-the-academy officer fired the first round speaks directly to critiques in the letter of Austin PD training at the academy. Advocates, the city's Public Safety Commission, a clutch of former cadets suing the department, and even city council members have suggested APD should cease holding new academies until they revamp their "warrior cop," command-and-control approach, shifting cadet training toward a more service-oriented model that emphasizes deescalation techniques as a central aspect of the use-of-force continuum.

Couple that with the fact that the officer who fired the lethal round has now killed two people in five years on the force, and it's hard to escape the impression that Austin is churning out new officers who are ill-equipped to handle the job. Most officers go their entire careers without ever firing their guns in the line of duty.

As is his typical approach, Manley attempted to blame the victim in the Ramos incident, refusing to say whether a search of the car revealed a firearm (it didn't) and claiming with no evidence or justification that the car had been involved in other criminal incidents.

None of that changes the facts on the ground. You can view bystander video of the incident here. Austin PD policy does not make bodycam footage public, taking advantage of a terrible law passed at the Legislature on the topic, although the District Attorney and others have called for its release in this incident. So far, all we have is cell phone footage shot by neighbors.

Officers had approached Ramos and his girlfriend after someone reported them allegedly doing drugs and claiming to have seen a firearm. As it turns out, the pair were smoking cigarettes in the car outside his girlfriend's home. Police found no drugs or guns, Grits can say with absolute confidence, or there's no question they'd have touted those facts from the rooftops by now. His girlfriend was taken into custody, held almost 48 hours without ever being booked into the jail, but ultimately was released.

These advocates weren't the only one finally fed up with Austin PD and their mealy-mouthed approach to dealing with the community. Also yesterday, several local groups (Texas Criminal Justice Coalition, Texas Harm Reduction Alliance, Grassroots Leadership, and the Immigrant Legal Resource Center) and a UT law prof backed out of a proposed grant application aimed at pre-arrest diversion in drug cases, claiming Austin PD was acting in bad faith. Here's a notable excerpt from their email:

In 2018, our organizations began a two-year project to better understand why Austin/Travis County produced a 66% increase in new felony drug possession cases within a five-year period despite no discernible increase in the drug prevalence rate. Our intention was to identify the locations and circumstances where pre-arrest deflection programming would have the greatest impact on reducing arrests and connecting people with meaningful harm reduction services. We remain committed to that goal, and we are grateful to have had the opportunity to work with city/county officials on a new vision for addressing substance use within our community.

What our study demonstrated, however, was that the increase in drug arrests was generated through police practices long believed to exacerbate racial disparities. Moreover, the arrests resulted in lengthy periods of detention, loss of income, increased homelessness, loss of immigration status, and collateral consequences that create lifelong barriers to employment and housing. In short, our study showed very clearly that the criminal legal system actors were doing harm.

Yet, the tone and content of the grant application shifts the responsibility entirely to the individual at risk of arrest for drug possession, not to the system actors who have done such harm to people suffering from substance use disorder. We provided lengthy comment on the current draft, but we simply do not see how these issues can be addressed satisfactorily before the grant application is due.

We believe that it is time to press reset. We urge the Austin City Council and City Manager to take decisive action to change the culture of law enforcement in this city.

The Greater Austin Crime Commission issued a statement cautioning against a "rush to judgment" after the Ramos shooting, but that misapprehends the situation. Elements of this episode speak directly to known problems at the department that should have been addressed long ago. Those include deescalation training that's disconnected from use-of-force policy, a lack of transparency around body cameras, the chief's misguided approval of officers shooting at moving cars, not to mention issues of bias raised in the Tatum report. Again, read the full letter. The list goes on and on.

It's become clear in the span of just a few days that Brian Manley and the entire city leadership team over public safety has lost the public's confidence. So what happens next?

Under the city charter, the city council cannot fire the chief, or even publicly declare they support his termination. Only City Manager Spencer Cronk can do that, and he should.

In the meantime, though, the charter does authorize city council to launch their own investigation into the chief and others criticized in the AJC letter. And they could also issue a "no confidence" vote exclaiming their dissatisfaction. We've reached the point where, if the city manager won't immediately act, it's absolutely time for them to embrace such tactics.

Manley, his chief of staff, assistant city manager Rey Arrellano - all these folks have entirely lost the faith of the community. It's time for them to go.

Media, unions hoped Dallas police staffing study would recommend more cops; instead it said 'manage your cops better'

The Dallas Morning News reported on a new staffing study for the Dallas Police Department prepared by KPMG. But the story is so focused on promoting the paper's ongoing agenda of encouraging the city to hire more officers, the coverage missed the forest while searching for a missing tree: they wanted the report to say how many additional officers the agency should hire, and KPMG failed to take the bait.

KPMG did identify DPD needs that could require more staff, but they suggested that staffing re-alignments and adjustment of strategies, tactics, and priorities could free up that capacity in lieu of the city hiring more officers. That thinking didn't make it into the Morning News story, even though it's the central reasoning behind the recommendations. Instead, the reporters scoured the 400-page report for hints at how many officers should be hired then called around to ask people if they thought the consultants should have given a hard number.

Indeed, the local police union just pretended the consultants had recommended hiring more officers and repeated the demand that a hard number be recommended for new hires:

Mike Mata, president of the Dallas Police Association, said he still hopes to hear an estimated number from top brass early next week. 

“What’s our goal? Even if it’s a broad goal,” Mata said. “I don’t think it’s healthy to just say we need more. There has to be a target or at least a range.”

In fact, KPMG recommended hiring a number of civilian positions as a higher priority than increasing patrol staff. Those were:

• Efficiency specialists
• Data science and optimization experts
• Technologists
• Change management specialists
• Project managers

They also recommended hiring civilian "investigations technicians," "crime analysts," "community support officers," and admin staff to support the Investigations division instead of just adding more cops.

KPMG argued that DPD brass should spend time re-organizing and re-prioritizing patrol functions to free up officer capacity, then evaluate how many officers should be hired when that process is finished. Right now, they said, the agency is completely reactive, with little in the way of a strategic planning process:

Based on our observations and interviews conducted over six months, it is evident that the DPD lacks a clear strategy and is more reactive to the issues of the day, rather than working towards a common long-term goal. While DPD has strategic priorities these have not been translated into a strategic plan that can drive action. This is particularly evident at the Patrol officer level, where staff appear unclear of the overall strategic direction and mission for the department as they receive conflicting direction from the department as to what the priority is, either response times or crime fighting.  

This is also apparent with respect to the Investigations Bureau, which lacks a clear crime strategy, which should be linked to the overall Department strategy that would allow for a flow down staffing model from priorities to execution. Staffing decisions are therefore made periodically and reactively. The DPD responds to both attrition of staff and the daily operational disruptions. The ideal allocation model would be based on a strategic crime reduction model, whereby staff is aligned by priority and actual workload and utilize data and intelligence to inform decision-making. The DPD has considerable work to do in order to achieve this ideal state in the Investigations Bureau. 

When staffing decisions are being made in a haphazard and reactive fashion, simply hiring more officers isn't a solution. The consultants recognized that, even if the Morning News and the police union can't quite accept it. DPD has some work to do before they could effectively use those staff, and the most important, immediate hiring needed involves civilian functions, not patrol officers.

Another interesting critique involved the agency's use of Compstat crime mapping software, which the consultants said contributes to the reactive nature of Dallas policing:

Recent research evidence suggests that Compstat is more likely to generate reactive crime control responses rather than more creative problem-solving responses designed to address the conditions that cause crime problems to recur (Dabney, 2010; Weisburd et al., 2003). In order to be effective the Police Foundation identified six key elements of Compstat that form a comprehensive approach for mobilizing police agencies to identify, analyze, and solve public safety problems: mission clarification; internal accountability; geographic organization of command; organizational flexibility; data-driven problem identification and assessment; and innovative problem solving (Weisburd et al., 2003). When compared to non-Compstat police departments, police departments that use Compstat have been found to be more likely to implement traditional crime control strategies rather than community problem-solving strategies to address crime problems (Weisburd et al., 2003). Willis, Mastrofski, and Kochel (2010) suggested a new form of Compstat that supports collective problem-solving, maintains accountability, and more fully embraces community policing. They observed that this may require diminishing the formality of the chain of command in crime control meetings to support more collaborative problem solving by a wider range of meeting participants. 

With this in mind and considering the recent increase in crime within Dallas, DPD may consider reviewing their current Compstat process to help ensure that the focus is not on reporting of statistics and reactive measures but considers proactive problem-solving initiatives so that the Compstat meetings add value towards the department’s crime strategy and are a productive use of time for all parties involved. 

The Dispatch functions in DPD similarly need to be rethought, say the consultants. Currently, every call gets the same priority. KPMG thinks they should stop assigning the first available officer, which takes cops off their beats and has them running around all over the city. Instead, they should enforce "beat integrity" and send the first-available patrol officer from that area. The wasted officer time driving around is one of the sources of freed up capacity the consultants hope to capitalize on to offset needs for additional hiring.

KPMG also praised the pilot program in Dallas which sends EMS and mental-health professionals as the lead responding to mental-health calls, using officers only for security. (The Austin City Council presently is considering whether to fund a similar pilot.) Not only does that lessen demand for uniformed officers, the consultants also praised the number of money saving hospital and jail diversions:

While DPD is making efforts in this area for example the establishment of the Rapid Integrated Group Healthcare Team (RIGHT) Care pilot program, which is a multidisciplinary team composed of a law enforcement officer with mental health training, a paramedic, and a behavioral health clinician, to answer mental health–related calls for service. This team is able to quickly mobilize and respond to people experiencing a behavioral health crisis in the community to divert people with complex health needs related to serious mental illness (SMI), when appropriate, from jail and emergency departments in order to decrease recidivism rates, better facilitate recovery, and more appropriately allocate community resources. Within the first year of the pilot the team affected 638 hospital diversions and 316 jail diversions.

In perhaps their most important and under-appreciated finding, Dallas PD has dramatically under-invested in civilian staffing across the board, the consultants concluded, and focused budget cuts on civilian an non-sworn positions instead of patrol. (That's one of the reasons the consultants recommended a clutch of civilian spots be filled first, before needs for additional police officers are assessed.) They wrote:

While the scope of the DPD staffing analyses was limited to the Patrol and Investigation Bureaus there were a number of opportunities identified to increase the use of civilian or non-sworn staffing within the Department. The DPD could benefit from the force-mix review of all functions within the department to help ensure that the right positions, with the right skills are performing the right roles. It was noted by DPD staff and leadership that during budget cuts the first positions to be unfunded are the civilian and non-sworn positions, however this can only serve to increase the burden on sworn staff and shift their focus from their core tasks.

Civilian staffing accounts for just 16 percent of total DPD staffing as of March 2019. When compared to the comparison cohort, this size of Dallas’s civilian workforce is the third smallest, with Dallas ranking ninth out of twelve agencies as civilians comprised only 17 percent of the workforce in 2017. As discussed in detail in the patrol report and illustrated in the graphic on the following page, the project team’s review of comparison agencies found that on average, 24 percent of their workforces were civilian staff.

Finally, DPD record keeping is such that some management evaluations couldn't be performed. The consultants gave detailed recommendations for improvements to record keeping, both practices and data points gathered, that they say will enable smarter decisions about how to deploy staff going forward. They don't say it, but one of Grits' favorite phrases comes to mind, here: You can't manage what you can't measure.

I don't understand why the Dallas Morning News feels the need to promote this hire-more-officers meme they've been hammering away at recently, but this report wasn't the platform on which to promote that narrative. The consultants didn't conclude that Dallas needs more cops, they said the agency needs to be better managed and re-organized.

That may not be the message Mike Mata and his local media bandwagon want to hear, but this study represents an opportunity for the Dallas press and, more importantly, local government, to pivot away from the simplistic meme that more cops are the only possible solution to crime. I hope they take it.

MORE: See DMN coverage of the city council briefing, and here's a DMN staff editorial struggling to come to grips with the fact that the consultants' analysis and recommendations fly in the face all prior DMN reporting and analysis on the topic. The editorial said the report's guidance was "sometimes confusing," but I didn't think so. They simply focused on more important management questions, whereas the Morning News' coverage has tried to boil down police-management issues to "how many more officers should we hire?," choosing between options of "a lot more" and "a whole lot more." The consultants showed that was a false choice that ignored pivotal issues facing the department that prevent more effective crime fighting. Hiring more officers before those problems are addressed puts the cart before the horse. At the briefing, "KPMG consultants repeatedly told city officials that there were strategic issues that needed to be addressed within the department before talking about overall department staffing numbers," the paper reported. IMO, any "confusion" stemmed from the News' wrong-headed coverage prior to the report's release. Grits thought the recommendations were quite clear and well-founded.

Hiring more Harris Co. prosecutors would harm the rest of the system

In Houston, liberal advocacy groups, including the Texas Organizing Project, the Texas Civil Rights Project, and the Texas Criminal Justice Coalition, are opposing Harris County District Attorney Kim Ogg's request for 102 additional prosecutor slots. (See initial press coverage.) Ogg says the slots are needed to make dockets move quicker. But Grits would favor expanding the public-defender office by that much LONG before I'd support that many more ADAs.

As it happens, an academic paper several years ago analyzed high prosecutor caseloads at the Harris County DA's Office, but recommended against addressing the issue by unilaterally hiring more prosecutors. Grits thought it relevant to revisit why those authors thought a hire-more-prosecutors approach was a bad idea:

The biggest problem with simply hiring more prosecutors is that doing so would have adverse effects on the rest of the criminal justice system. Increasing the number of prosecutors without a corresponding increase in public defenders would exacerbate the indigent defense problem. Defense lawyers would still be overburdened and would be in a worse position because they would then be facing prosecutors who were better resourced and thus better prepared for trial and less interested in plea bargaining. 

A second objection to simply appropriating money for new prosecutors is that there would be no guarantee that the allotted money would be used to reduce existing caseloads. Prosecutors’ offices may use the added manpower to simply file more charges. At present, overburdened prosecutors’ offices likely decline charges for minor criminal infractions that they simply lack the manpower to prosecute. Increasing the number of prosecutors may thus result in increased prosecution of low-level drug or prostitution cases without any real reduction in the caseloads of existing prosecutors. 

A third objection is that elected district attorneys in large offices (who are primarily administrators and typically do not handle actual cases) may view new staff as an opportunity to enhance their political reputations rather than reduce existing caseloads. At present, most local district attorneys have no choice but to use almost all of their budgets to handle violent crime. A sudden influx of new staff might lead elected prosecutors to create new departments or to allocate new lawyers to pet projects that will make political hay. For example, very few county district attorneys’ offices have the resources to handle long-term, paper-intensive, white-collar crime cases. Yet, in today’s political climate, many elected district attorneys would surely like to have robust white-collar divisions that focus on high profile issues such as mortgage fraud or investment malfeasance. Similarly, as it has become politically popular to “go green,” elected prosecutors might like to expand the size of their environmental divisions. Or district attorneys may simply be animal lovers who want to expand departments that focus on animal cruelty. All of these are worthwhile projects, but directing resources to new areas will do little to reduce the enormous caseloads facing existing prosecutors. (citations omitted)

Instead, the paper suggested tying any increase in prosecutor staffing with increases in indigent defense funding. That makes much more sense in the present political environment, and would reduce some of the unintended consequences that would likely arise from a one-sided arms race between prosecutors and defense.

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

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

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

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

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

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

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

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

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

TDCJ can't stem staff turnover crisis at remote, rural units; #txlege must align policy with reality and reduce low-level drug sentences

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.

Prison system is Texas' third fifth largest employer

The Texas Department of Criminal Justice is the state's third fifth largest employer, according to Grits' calculations.

I began to investigate that ranking after seeing an article from US News and World Report titled, titled, "Can the Rural Prison Economy Survive the Decarceration Era?" According to that story, the Department of Corrections in Pennsylvania is the 15th largest employer in that state. How does that compare to Texas, I wondered?

TDCJ employs more than 37,000 people at any given juncture. How does that compare to other large, Texan employers?

There doesn't appear to be an official government listing of each state's largest employers, and I couldn't find specific data either from the federal Bureau of Labor Statistics or the Texas Workforce Commission. (Let me know in the comments if you're aware of better sources.) Googling around, however, I found several unofficial lists purporting to identify Texas' largest employers. See here, here, and here. None of these included the prison system in their lists. That's a mistake.

Two of those sources listed two entities - the Texas A&M University System (50k) and Shell Deepwater Development (44k) - as having more employees than the Texas prison system, followed closely by the MD Anderson Cancer Center in Houston (35k). This source added the DFW International Airport at the top of the list, at 60k employees.

So depending on whether we include the DFW Airport, TDCJ is the third or fourth largest employer in Texas. Grits would tend not to include the airport. Apparently, the 60k figure is for all employers; only 1,900 of them are employed by the airport proper.

In that light, I'd call TDCJ Texas' third largest employer. HOWEVER: A commenter pointed out that Walmart and HEB both employ more than any of those entities, which would make TDCJ the fifth largest. See the correction below and the comments.

If the state corrections agency is the 15th largest employer in PA and the third fifth largest in Texas, that tells you the penal system here is a much more significant part of the economy.

According to the Bureau of Labor Statistics, about four out of every 1,000 jobs in Texas are correctional officers in prisons and jails, totaling about 48,600 statewide.

CORRECTION: A commenter pointed out that Walmart (171k) and HEB (90k) both have more employees than those listed, which would make the prison system the fifth largest employer in the state. Again, if anyone has a better list than the sources above, let me know in the comments.

Executing non-killers, imagining life without plea bargaining, no oversight for forensic hypnosis, and other stories

Here's a brief, browser-tab clearing roundup of items about which I haven't had time to blog, but of which Grits readers should be aware:

Forensic commission can't address 'forensic hypnosis'
First, updating an earlier Grits report, I communicated with Lynn Garcia, General Counsel for the Texas Forensic Science Commission, who informs me that forensic hypnosis does not fall under their jurisdiction, even as a general area they're authorized to study, because it does not involve "physical evidence," which is defined in the statute as something tangible. She said they've received complaints about the practice in the past, including one recently, and agrees it's problematic, but doesn't believe it falls within their jurisdiction. While I understand her legal interpretation, that leads to an unfortunate situation where government-sanctioned junk science (the Texas Commission on Law Enforcement gives out certifications in forensic hypnosis) cannot be evaluated by the state Forensic Science Commission. That should change in 2019.

Maybe they'll listen if they Rangers tell 'em
Governor Abbott has asked the Texas Rangers to investigate sexual abuse at the Gainesville State School. But we've had an Ombudsman complaining about these problems and recommending solutions for years, and for the most part those recommendations have been ignored. Most of the details in the disturbing press reports out of Gainesville came from Debbie Unruh, the TJJD independent ombudsman, and had been included in her prior reports. Why would we imagine state leaders will listen to the Texas Rangers when they haven't implemented the recommendations from Unruh who's been sounding the alarm all this time? The state already knows the solutions here, they just haven't heretofore been willing to pay for them.

Did TDCJ understaffing allow rape of prison teacher?
A teacher at a TDCJ prison blames chronic understaffing for the circumstances that led to her rape. Grits readers know this is a longstanding problem. The solution here is to reduce incarceration levels and close understaffed units. There just aren't enough people in some of these rural areas to consistently staff the prison units there. And the problem will be much-exacerbated at certain South and West Texas units if and when oil prices go back up.

Coverup at TDCJ?
The Texas Department of Criminal Justice allegedly shredded documents they were obligated to turn over as discovery in a federal lawsuit alleging the summer heat in un-air conditioned prisons constitutes cruel and unusual punishment. The warden who approved the shredding allegedly already knew about the litigation. Hard to interpret it otherwise: This smacks of a coverup.

Executing non-killers
Something about executing a person for a murder they didn't themselves commit feels inherently unjust. Even the prosecutor from Jeff Wood's capital conviction, who had 13 months experience as an attorney at the time she was designated shot-caller in the case, has asked the Governor to commute his sentence. Wood's example reinforces Grits' belief that the law-of-parties doctrine is ripe for revision: the concept stems from British common law, but Parliament abolished it in 1957, followed soon thereafter by all of Europe, India, and in 1990, Canada. This is a holdover from a less evolved time.

Paying for public defenders would reduce incarceration costs

Long-time Grits readers are aware that defendants represented by public defenders have better outcomes than those with appointed attorneys. We've seen this both in national data and Texas examples. But a new national analysis suggests that public defenders do such a better job that using them reduces incarceration costs: Using "public defenders reduce[s] the probability of any prison sentence by 22%, as well as the length of prison by 10%."

When your 'tiny house' means a tiny privacy footprint
Here's an unintended consequence to the "tiny house" movement: If your tiny house is on a trailer, your Fourth Amendment rights are likely diminished and the automobile exception will apply to searches of your residence, according to academic from Texas State.

Life without plea bargaining?
For the reading pile: India's court system doesn't do plea bargains. They've tried to implement them in the last decade and it's been a flop. I want to read this new academic article to learn more about the situation.

Understaffing at Texas prisons and the implications for decarceration

Your correspondent was quoted in a page one article in the Houston Chronicle today, "Mass exodus of Texas prison guards leaves some units understaffed," about guard shortages at Texas prisons, a topic that Grits has covered for many years. (The author, Keri Blakinger, is new to the Chronicle and the beat, so cut her a little slack for being late to the party; she got here as quickly as she could.)

Statewide, the turnover rate among prison guards was 28 percent last year, but at some units it was much higher.

County-by-county numbers show that staffing challenges can be highly localized and specific, as in the Texas Panhandle. Hartley and Dallam counties are not in an area particularly known for oil and gas, but a cheese factory in Dalhart has typically pulled away would-be prison workers, Henson said. 

The other two — Mitchell and Dawson counties — are in the oil-rich Permian Basin. 

"Whether people will work in prisons depends on hyperlocal economic conditions," Henson said. "A prison is someplace that you work as a job of last resort."

Here's a map of the counties with the highest turnover rates among correctional officers:

State Sen. John Whitmire honed in on the fundamental problem:

"I believe in most instances we put the prisons in all the wrong places," said Sen. John Whitmire, D-Houston, chair of the Texas Senate's criminal justice committee. "Some are located in communities that don't even have housing available for the corrections officers."

Bingo! Many of Texas' prisons were located in sparsely populated areas thanks to a failed Democratic electoral strategy from the Ann Richards era. Richards sought bond funding to expand prison capacity far beyond what was necessary to accommodate federal prison reform litigation (Ruiz v. Estelle). The idea was to promote prisons as rural jobs programs in areas which were depopulating and which historically had voted Democratic. But Democrats badly miscalculated. On that same 1994 ballot, voters gave a thumbs up to the prison bonds and a thumbs-down to Ann Richards.

Meanwhile, the reasons rural areas were depopulating did not change thanks to an influx of low-waged jobs nobody wants. And so now, at many of those locations, there aren't enough warm bodies to fill the positions.

Closing units where staffing problems are most acute would make a lot of sense from TDCJ management perspective. But so far, prison units closed in Texas have been based on political considerations, sometimes including real estate interests that want to use the land for other stuff. But one can make the argument for reducing incarceration, say, of low-level drug possession offenders simply because it's becoming dangerously difficult to guard them out in the middle of nowhere in a short-staffed and under-funded setting.

Save money. Increase liberty. Make the prison system safer. What's not to like?

Almost seven years ago, Grits offered up a sort of decarceration manifesto at a time when Texas had never closed a prison since the founding of the Republic. Titled, "Six Impossible Things: Do you believe in a conservative, rational, and smaller corrections budget," I made these broad points (subheds to the article):

1. Prison closures aren't just possible but necessary
2. Texas can safely incarcerate fewer low-risk nonviolent prisoners
3. Incarcerating more people costs more money
4. Community supervision is still punishment
5. Releasing people is what prisons do, so we must do reentry better
6. The prison bureaucracy is not the best judge of its own inefficiencies

With 20/20 hindsight - after Texas has reduced its prison population by nearly 10 percent and closed eight units - all of these "impossible things" turned out to be true, and they still are. Prison closures remain necessary because if we don't reduce the number of prisoners and shutter more units, costs will escalate. Both Texas' own experience and the examples of other states show #2 was correct, and #3 has always to me seemed self-evident, the Legislative Budget Board's pro-enhancement posturing notwithstanding. And the public is prepared, in my estimation, to believe #6. But numbers 4 and 5 haven't really bubbled up to the surface of public consciousness in the way one might like.

Regardless, Grits first began tracking the guard understaffing story because of its implications for decarceration and prison closures, and Ms. Blakinger's reporting shows those underlying dynamics remain strongly in play. The prison system has an interest in reducing its size and the number of people it incarcerates for its own institutional reasons, independently of advocates seeking that outcome. That creates some interesting near-term possibilities as the Legislature faces another money-strapped session in 2019. A lot there to chew on.

MORE: From the Beaumont Enterprise.

Overtime for police court appearances a growing cost driver at Austin PD

Last month, a Grits post highlighted provisions in the Austin and Houston meet and confer contracts which gave police officers extra pay for time they spend testifying in court. In Houston, courts found this gave officers an incentive to make arrests on bogus DWI cases so they could make extra money - often quite a bit more than their base pay - in overtime for court appearances. And Austin's overtime pay for court appearances is even more generous.

Now, a budget response to questions by Austin Mayor Steve Adler about the drivers of overtime expenditures and police budget costs supplies light on the subject from a different angle. According to the city manager's response,

In 2016, overtime per sworn officer at APD was $11,647, up from $8,108 per officer in 2014.

Adler asked what was driving costs and overtime use at Austin PD. Looking beyond base officer pay, which in Austin steps up quickly with seniority to make them among the highest-paid officers in the state, the biggest over-time related item listed among the cost drivers was "Contract mandated Court overtime for police officers." That was the third largest item in an "other" category of cost drivers which included "Retirement" and "Health Insurance."

So, although we can't say from these data what proportion of overtime expenditures is due to court appearances (as opposed to callbacks or other, more mundane sources of overtime), overtime costs for court appearances have clearly mounted and now represent a significant sum.

Perverse incentives created by police overtime for court appearances

The Texas Court of Criminal Appeals last month issued an opinion in Ex Parte Mark Bowman, with a dissent from Judge Elsa Alcala, that caught Grits' eye - not because of the issues being decided in the case but thanks to the underlying fact pattern evinced in the discussion.

At issue was a 2004 DWI in Houston and whether the defense counsel was alleged to be ineffective. The evidence of counsel's ineffectiveness? Because of Houston PD overtime rules, the officer had an incentive to arrest people for DWI even if the cases were later dismissed because he received time-and-a-half for the hours he spent in court.

The officer, William Lindsey, testified that members of the DWI task force were "paid overtime, time-and-a-half" for all hours spent in court, giving him a personal financial motive to go to court whether or not an arrest is legitimate. In the prior year, he said, he'd made 476 DWI arrests.

In his habeas writ, the defendant was able to show that Officer Lindsey, from 1992 to 2004, made more money from combined overtime pay than he did from his regular salary. According to the majority opinion, "In the first eleven months of 2004 - the year of Appellant's first DWI arrest - Lindsey earned a total of $145,957, of which only $63,924 was regular salary while $82,032 was paid overtime."

For a while, Lindsey was the highest paid officer in the city. He retired after reporters began to question the situation in 2006. (See contemporary Grits coverage.)

Three criminal defense lawyers, including Doug Murphy, a DWI specialist, testified that failure to secure details about Lindsey's economic incentives amounted to ineffective assistance.  From Murphy's affidavit:

It is common knowledge among lawyers in Harris County who regularly handle DWI cases during Lindsey's tenure on the DWI Task Force that he arrested many people in affluent parts of southwest Houston - regardless of how well they performed the field sobriety tests or how sober they appeared to be on videotape - so he could obtain overtime pay for appearing in court pursuant to a subpoena to testify at their trials. Competent defense lawyers made Public Information Act requests to HPD to obtain Lindsey's payroll records before they tried DWI cases in which he would testify.

Further, wrote Mr. Murphy:

Defense lawyers would present this evidence on cross-examination to demonstrate Lindsey's motive for making the arrest. They typically would argue that Lindsey arrested sober drivers for DWI because he knew that they would go to trial and he would receive overtime pay for appearing in court to testify; that, for this reason, he gave no driver the benefit of the doubt at the scene; that, in effect, he received three days of pay for appearing at a two-day trial; that he received the money even if the defendant were acquitted; and that his overtime pay exceeded his regular pay during his tenure on the task force. Arguments of this nature frequently persuaded juries to reject Lindsey's opinion regarding intoxication.

The other two attorneys' affidavits included essentially similar comments.

A Houston Chronicle story from July 1, 2006* mentioned a "memo ... from a traffic enforcement captain warning that officers were scheming to have themselves unnecessarily placed on court dockets to inflate their overtime totals." So these allegations were coming from HPD brass, not just defense lawyers or the media.

Let's leave aside for a moment the question of whether defense counsel was ineffective, which is the focus of the two opinions. Grits instead wants to raise other questions: Is it good public policy for police officers to have an incentive to make dubious arrests so they can get overtime to show up in court? If testifying is part of a police officer's job, why can't they do it during regular work hours? Is there a way to pay for court time that doesn't contribute counterproductive incentives?

In Austin, the meet and confer agreement (Art. 8, Sec. 3) specifies particularly generous extra pay for time spent in court. For example, an officer who attends court for more than one hour prior to the start of the work day gets credit for a minimum four hours of overtime. Similarly, officers who go to court after work receive a minimum of four hours overtime no matter how long they stay there. So if an officer gets off at 5, goes to court at 5:15, and is out by 5:50, they'd be compensated for four hours at time-and-a-half.

Such pay structures give incentives for police to arrest on trumped up charges so they can justify spending time in court and making time-and-a-half. Such incentives can result in false convictions, particularly when counsel is ineffective or nonexistent. That seems like a more important takeaway for me, anyway, than the ineffective assistance questions at the heart of the debate between the judges over Mr. Bowman's habeas writ.

*No public link: Accessed via subscriber-only Houston Chronicle archives.