Blakinger: Myriad pandemic updates, conflicting accounts on intra-prison transports, and one happy story to cheer you up

Our pal Keri Blakinger offered up another excellent and much-appreciated email update while Grits' blog content ramps back up. I couldn't be more grateful, thanks Keri!

Hey Grits,

Guess what I had for breakfast? Actual grits. For the first time in my life. I always skipped grits days in the prison mess hall but now I bought a bunch for my pandemic pantry. They are surprisingly good!

I was pleased to see your update and welcome your imminent return to the blogosphere! Here is one more get well and come back soon email and update.

As I’m sure you’ve noticed, the world is falling apart. So I’ve included eight depressing virus-related items, one longer discussion of an uncovered issue, and one short happy thing!! You have to make it to the end for the happy thing, no cheating!

Depressing Items

1. As coronavirus began making its way across the country a few weeks ago, people suddenly realized: Prisons literally banned a lot of basic disease prevention measures. With a lot of pressure some of this has changed, but generally, as of a few weeks ago prisons across the country banned alcohol-based hand sanitizer, made social distancing impossible, and did not allow face masks. (Relatedly, this is a good Stateman story from a few weeks ago about supplies/prisons.) 
2. There are a lot of aging and medically needy prisoners. This is a thing you have, of course, written about. And it came up a lot in the Pack litigation. But now it could be extremely problematic for the prisons and jails that are about to be overwhelmed with an illness that particularly puts medically compromised and aging populations at risk.
3. Given all that, prisoners are suing TDCJ. The attorneys on the case are - of course! - Scott Medlock and Jeff Edwards. Their names should be familiar to Grits readers because of the air conditioning and hepatitis C lawsuits. FWIW, there are a lot of corona-related lawsuits out there across the country, but most of the ones I’ve seen seem to be about release. This one is about conditions; i.e., they’re asking for supplies like hand sanitizer and measures like social distancing, not arguing that they should get out.
4. Speaking of release, everyone from experts to advocates to law enforcement officials to editorial boards has been advocating for jail and prison releases as a way to minimize the spread behind bars. The exact mechanics vary but the Galveston jail population is down 20 percent, Travis County is down some 600 people, and Dallas County - where 20 inmates have tested positive - is down a few hundred.
5. In addition to f***ing up the jails, prisons, courts and every aspect of life in general, the coronavirus is f***ing up death. Specifically, the pandemic has forced Texas to postpone three execution dates and seems likely to force the state to call off more. It’s also slowing down litigation, investigations and clemency efforts, as well as delaying trials, hearings and argument. Maurice Chammah and I quote your beloved podcast co-host Amanda Marzullo in our coverage of it.
6. The state is actively fighting to keep people in jail. First, Ken Paxton - himself a felony arrestee out on personal bond - filed to intervene and prevent the possible release on personal bond of 4,000 Harris County inmates who he said would be able to “roam freely and commit more crimes during the ongoing COVID-19 pandemic.” Then, the governor stepped in and did an executive order banning use of personal bond for anyone with any current or prior violent charge. The misdemeanor judges here in Harris County DNGAF. The felony courts are a little more complicated, as Gabrielle Banks and frenemy Sinjin report.
7. Speaking of death, a lot of people are buying guns. Federal background checks for gun sales are way up over last month, Ted Oberg reported. This is exactly not at all surprising - though the fact that in Texas gun stores have stayed open and abortion clinics were closed seems to have raised some eyebrows.
8. We all know short-term fluctuations in crime aren’t necessarily indicative of anything, but FWIW crime is down. I guess it’s hard to burglarize when everybody is at home. But at the same time, police are worried about seeing an increase in child abuse and domestic violence in the coming weeks. (In Dallas, the CBS affiliate already reported that happening more than two weeks ago, and Houston Public Media wrote about it this week.) I’m sure that’s only one of many awful, terrible things to come. Sorry this is the world you’re coming back to Grits, things got fucked up while you were gone!

The Longer Discussion:

The Texas prison system was slow to give employees access to protective gear and to halt inmate transfers, both practices that officers and advocates worried would create health risks during a pandemic that has already made its way into the state prison system. (As of Sunday evening, 18 inmates and 25 TDCJ staff had tested positive and some 3,700 prisoners were on medical restriction.)

Typically, hundreds of prisoners across the state are moved around every day, and there are more than 200 transport officers whose jobs are dedicated to making that happen. Sometimes the moves are for medical reasons, but other times it’s for court appearances, in preparation for release, to go to a unit that offers a specific type of program. The moves - often in the wee hours of the night - are stressful for everyone involved, and typically involve being chained to another person and loaded onto the white prison buses zipping up and down I-45.

But in the era of social distancing, that poses a clear safety risk - both because of the forced proximity and because of the possibility of spreading disease across the system through asymptomatic carriers. TDCJ - like every other prison system in the country - has already cut off visitation and programming, as well as attorney visits and in-person parole board interviews. But the continued need for prisoner transports has been a source of some tension. 

Even after officials in late March said the agency had stopped all but medical transports, officers repeatedly said that wasn’t true. At one point, it broke out into a little spat on Facebook between the Texas Correctional Institute Facebook page, a group run by TDCJ officers involved in a nonprofit by the same name.

“Texas prisons are breeding grounds for spreading COVID-19 with non medical chain buses running daily and staff lacking proper PPE such as N95 mask,” Texas Correctional Institute (TCI) posted on March 26, linking to an article titled: “Could Prison System Contribute To Increased Spread of COVID-19?”

“You are wrong,” spokesman Jeremy Desel wrote in response. “There are only medically necessary transfers occurring along with intake from unaffected counties. There are also significant supplies of N-95.”

The TCI main page and numerous individual posters disputed that, as did several officers I interviewed. 

Later, when I called Desel about it for a story, he clarified: Almost all transports had ceased, but sometimes people have to be moved from one unit to another to make room for other medical-related transports. The officers I’ve talked to still say that’s understating what’s going on, and point out that the agency is still accepting new intakes from counties and out-of-state. For example, officials in Louisiana confirmed sending two people to Texas last weekend - and both are now in custody of TDCJ. 

So it appears that even as the governor was drafting an last weekend’s executive order for any travelers from Louisiana self-quarantine, Texas was taking in new inmates freshly transported from a part of the country with one of the highest coronavirus infection rates in the country. It’s unclear if they’re parole violators or if they were picked up by a local law enforcement entity before ending up in TDCJ.

In recent days, officers have confirmed that internal transfers are down significantly, but the allegation that too many happened for too long is not unique to Texas: Across the country, other prison systems - particularly the BOP - were seemingly reluctant to slow down internal moves, facing some criticism for it.

Another source of criticism for prison officials in Texas and elsewhere has been the reluctance to allow the use of masks - both by prisoners and staff.  In the federal system, some units have issued them to prisoners and in New York they’ve (as of last week) been allowed for corrections staff and some prisoners. In Nebraska, last week the agency mandated masks for employees (and the prison director posed in one to make the point). Here, officers and union leaders voiced concerns over the past week or so about the lack of access to masks, which many report they have were not permitted to wear at work. 

“We’re already 4,800 officers short, we can’t afford a mass exodus because they’re not provided PPE,” AFSCME Texas Corrections president Jeff Ormsby told me. “The CDC is recommending a mask anywhere you go now, but we should be letting the staff wear them in prison.”

Late Sunday, that changed. Now, all medically restricted prisoners and all agency staff will be issued cloth masks. And, prisoners at the garment factories are making more. 

On the one hand, this raises questions as to whether the agency could have acted sooner - but on the other hand, it’s hard to fathom what a really successful intervention might look like in a prison system. In the absolute best case scenario, meaningful social distancing is just not possible in most housing areas, and so many of the other mitigation efforts pose significant logistical challenges. So what’s next? The union is pushing for a systemwide lockdown. So far, I haven't heard any official support for that idea but with the pace of this news cycle - who knows.

The Good Thing

PAM COLLOFF HAS A HAPPY STORY. Everybody hearts Pam, and I especially heart her right now for providing a rare, rare moment of hope when everything seems to be on fire. I could go on but you’ve read enough words by now so here it is: Joe Bryan got out. ENJOY. Congrats to Pam, and welcome home to Joe.

Reed on ridesharing and DWI

Commenting on local anti-DWI efforts, outgoing Bexar County DA Susan Reed cited ridesharing services Lyft and Uber as a means to reduce drunk driving in a city without a robust public transportation system (which pretty much describes every Texas city).

Grits found this interesting because local debates over these services have largely revolved around whether they're fair to taxicab companies, whom one would suppose from the rhetoric enjoy a God-given natural cartel that trumps the forces of capitalism and technology.

The city of San Antonio is considering regulations to limit ridesharing services, but the Texas Public Policy Foundation's Jess Fields rightly suggested yesterday that "San Antonio’s council members would do well to remember that the threat of new competition threatens taxicab companies, not consumers while the threat of drunk drivers is very real indeed."

I'm not a fan of Reed's other suggested DWI solution - "sobriety checkpoints" where every car is stopped at a roadblock regardless of whether there's reasonable suspicion.  But IMO she's right to frame the debate around ridesharing services in terms of providing an alternative to drunk driving.

If Texas (re)diverts state highway fund to roads, what happens to border security at DPS?

Interesting to see that, while on the gubernatorial campaign trail this year, Greg Abbott pledged to seek diversion of state highway fund monies from the Department of Public Safety to road building. According to a recent endorsement in the Odessa American (Oct. 26):

Abbott also recommends amending the Transportation Code to limit State Highway Fund expenditures to intended transportation purposes and amending the Texas Constitution to dedicate more than two-thirds of vehicle sales taxes to the highway fund. As he puts it, his plan is rooted in transparency for the citizenry of the state, and we couldn’t agree more.

Speaker Joe Straus has suggested a similar stratagem, which makes perfect sense from the standpoint of bolstering flagging road infrastructure but which would dramatically undermine the principle source of  increased revenue to DPS over these last years, particularly the half billion-plus the state has spent on redundant border security.

Anyone who's driven Texas highways recently knows the state needs more investment in transportation ASAP, but if the state highway fund is (re)diverted then the Lege will either have to fund DPS activities from some other source or scale back their budget to make the whole thing balance.

Better roads and Texas' border security boondoggle: In the end, legislators can only pick one to fund unless they deign to raise taxes or siphon from the Rainy Day Fund. Either funding option seems viable but both also seem politically unpalatable in the current environment, which could make debates over spending state highway funds particularly vexing next spring.

MORE: Abbott's statements seem to be boxing him more and more into supporting tax hikes to pay for all he's promised. A Houston Chronicle profile declared that Abbott "[s]upports doubling state spending for the Texas Department of Public Safety to add manpower, technology and tools for added surveillance at the Texas-Mexico border" as well as "funding for additional surge-enforcement operations along the border." You can't do that and also redirect the state highway fund away from DPS and back to highways without additional revenue from somewhere, even if "new taxes" don't appear to be part of the soon-to-be-governor's campaign platform.

Tech and transportation roundup

"I want to live in a world where a chicken can cross
the road without anybody questioning its motives."

                                                    - Neil deGrasse Tyson

Transportation laws are outdated, is the message from these recent items:

• Ride-for-hire companies getting legit, if not yet legal
• Feds seek input on potential smart car regs
• GM expects to offer hands-free driving by 2016 
• The ethics of autonomous cars
• Robot cars of tomorrow may be programmed to hit you
• Driverless cars will "capture a virtual replica of the real world," says Pernilla Ohrstedt 

As more features of automated cars become reality, and companies like Uber and Lyft press the boundaries of available transportation options, it's becoming clear that government at all levels will have to adjust laws to fit tech in much the same way as is happening on Fourth Amendment electronic-privacy questions. The tech is forcing the issue more rapidly than government normally operates.

In Austin, police are arresting Uber and Lyft drivers even as the companies heavily promote their services, their market share is growing, and the city council considers legalizing their currently illicit but popular services.

Meanwhile, the feds are beginning to think about regulating autonomous cars just as they're about to hit consumer markets earlier than most people anticipated.

Two other pieces on autonomous cars emphasize the ethical aspects of coding such vehicles to actually function successfully in urban environments. If your car must choose in a split second which vehicle to hit - the late-model Volvo or a motorcycle with a helmet-less rider - which should it choose?

And the final item highlights a little-discussed aspect of autonomous vehicles operated by sensors: Once broadly implemented, they will generate a terrific cache of data about urban environments. Grits has discussed before how the market for wearable tech depends on finding uses for data generated by sensors, which has meant corrections applications have been some of the most lucrative in the early going. With cars, there are near-endless uses for the data beyond just operating the automobile. Who gets to use it? For what purposes? At what cost?

There are significant criminal justice implications for these tech advances, particularly automated cars. Grits finds these issues surrounding emerging technologies a fascinating example of how judgments about ethics and rights change with context. Just as the arrival of the automobile launched a decline in Fourth Amendment protections, I'm hopeful that emerging personal tech and debates over control of data may end up sparking their renaissance.

'Do border surges work?' For incumbent pols, but not really the rest of us

The Austin Statesman on Sunday published an extended investigative piece on Texas' beefed up border security efforts and posed the simple but controversial question: "Do border surges work?" The article tracks several themes examined on Grits earlier this month about the lack of articulable goals or success metrics for an expensive, open-ended deployment which now includes not just Texas DPS but 1,000 National Guard troops, all of which so far is being paid for, un-budgeted, out of the state's general fund.

Government claims victory both when seizures go up and down, making the metric meaningless for evaluating whether taxpayer money is well spent funding "surge" efforts. The authors attempt to apply a normative analysis based on the facts and interests at stake and concluded there's little evidence Texas boondoggle border surges are helping the problems they're ostensibly aimed at resolving. All these troopers and soldiers arrive at the border with no obvious jurisdiction or meaningful role to play.

Still, the bottom line answer to "Do border surges work" is "Yes," though not for the reasons one might think. Certainly they're not thwarting illegal immigration, drug smuggling, nor maximizing the state's bang for the buck fighting crime. But those expectations misunderstand what's really going on with this latest round or border security spending.

Like its predecessors dating back to Operation Linebacker, recent surges by state and local law enforcement, much less by the National Guard, are nothing more nor less than expensive political theater. Border surges "work" not to reduce crime at the border but to allow Texas pols to claim they're "doing something" about the illegal immigration since Obama won't fix the problem. Never mind that their actions also won't fix the problem and may worsen it. Or that state leaders have prioritized a politicized "surge" over road maintenance. Or that a purely martial response ignores the real and immediate humanitarian crisis facing children from Central America who're piling up like kindling in Texas-based detention facilities. The meme plays well to portions of the GOP base and in the near term, to win an election, ginning  up the base matters a lot more than the truth. As long as that dynamic holds, we'll see more border surges because incumbent politicians have seen they "work,"  at least for purposes of political expediency, though not because they make us one iota safer.

What would it mean for border security to really "work"? Grits has argued in the past that any new border security funding should go first to pay for expanded Internal Affairs capacity (or maybe some sort of anti-corruption unit) to rein in bribery and collusion with drug runners among border law enforcement that contributes to the chronic, intransigent nature of the problem. Just paying overtime for more vehicle patrols, in the end, won't accomplish much.

Meanwhile, Politifact took on questions about a purported crime wave by "criminal aliens" touted by Attorney General Greg Abbott and Governor Rick Perry to support the border crackdown. I'm not a fan of Politifact. I think their only two ratings with any real meaning are "True" and "Pants on Fire." But lo and behold, they gave a "Pants on Fire" rating to Gen. Abbott for asserting that about 3,000 murders in Texas could be attributed to lax border security, calling the claim "incorrect and ridiculous." They also gave a "Pants on Fire " rating to Gov. Perry for similar overstatements a couple of weeks prior for claiming a phony Mexican murder wave. Of course, in the real world immigrants - legal and undocumented alike - commit crimes at very low rates compared to American citizens. But one wouldn't want to let facts interfere with one's opinions, so instead we must witness the disgraceful spectacle of the state's top politicians bearing false witness to pander to the nativist wing of the GOP base.

Another, accompanying article from AP posed the question: "Lawmakers: Is beefed up border security worth it?" with the additional National Guard troops announced while I was out of town (in Mexico City, ironically), Texas is now spending $4.3 million per week out of un-budgeted general revenue to support DPS' and the National Guards' expanded presence, perhaps indefinitely. That's nearly a quarter-billion dollars per year if it goes on that long. I know people have short memories, but those who can recall at least back to the George W. Bush governorship should understand why sending soldiers to the border is as likely to end tragically as to improve things. 

Increasingly I wonder if much of the extra hype we're seeing about the border from state leaders isn't intended as a pre-emptive counter to House Speaker Joe Straus' stated desire to stop spending state highway money on DPS and spend it on roads and transportation instead. By getting him to commit to this extra spending before session even begins and Straus can appoint a new budget chair (Adios, Jim Pitts!), the Speaker seems to have been outmaneuvered, ensuring money from the state highway fund will continue to be siphoned to DPS, perhaps even in increased amounts. Col. McCraw and his allies knew better than to let a crisis go to waste and seized on the humanitarian plight of Central American kids to justify proposing a much more militarized southern border.

That's my best guess as to the larger chess match being played here, with all the overheated border security rhetoric that's dominated the public debate a convenient smokescreen for DPS and its allies hoping to stave off budget cuts if their highway money goes kaput. Now it's the Speaker's move. He can acquiesce, or insist after some respectable interlude that DPS prioritize and cut other spending in its budget to cover the cost. That'd be a Hail Mary, though. He'd need a strong Republican Senate ally (or a governor with line-item veto power) to pull himself out of the corner he's been backed into.

Regardless, that to me seems like the Speaker's only option, besides giving up his quixotic push to spend highway funds on highways before it ever properly got off the ground.

'Fiscal impact of border security'? Spend less on roads

Texas Speaker of the House Joe Straus this week appointed a committee to focus on the "fiscal impact of border security and support operations." According to a press release, "Speaker Pro Tempore Dennis Bonnen of Angleton will chair the new committee. Its membership will also include Reps. Greg Bonnen of Friendswood, Myra Crownover of Denton, Drew Darby of San Angelo, Donna Howard of Austin, Oscar Longoria of Mission, Marisa Márquez of El Paso, Sergio Muñoz, Jr. of Palmview, John Otto of Dayton, Sylvester Turner of Houston and John Zerwas of Simonton."

Here's what's interesting to me. Before the recent episode with child migrants, Speaker Joe Straus had been maneuvering to have the House consider whether to stop diverting highway money to DPS and spend the money instead on transportation projects. Then, within a month or so of adopting that stance, the Speaker joined with the governor and lieutenant governor to approve an emergency expenditure of $1.3 million per week on expanded DPS patrols in the Valley. But a lot of the "extra" spending thrown DPS' way in recent years - $500 million, by Rick Perry's count - has gone to (IMO wasteful and pointless) border security operations. So Straus has endorsed both sides of this issue in a matter of weeks.

If Texas wants to divert money from DPS to roads - and in the big picture that's probably a wise prioritization of state expenditures - then politicians starting with Straus must find a counter to nativist scare tactics that have made "border security" such an unlikely spending imperative among the state's political class. Ironically, the mayor of McAllen doesn't believe there's a crisis or an "emergency." Perhaps Straus should look to him and other local officials in the Valley for rhetorical and policy responses to border-security hype. Otherwise, that hype will roll over him when he tries to expand transportation funding next year.

Public transport, less regulation would reduce DWI arrests

The Austin Statesman on Saturday published an item touting expanded public transportation options as a remedy for DWI. The article opened:

In the wake of several high-profile deaths in which pedestrians were hit by suspected drunken drivers this year, an Austin council member is seeking to expand the city’s transportation options during hours when the most people need rides.

Council Member Chris Riley wants the city to create a pilot program for so-called transportation networking companies, such as Uber and Lyft, and for the city to work with the three taxi companies that operate in Austin to figure out how to meet peak taxi demand.

Many residents have recently expressed concerns about transit options, Riley said, largely because of problems with drunken driving.

“They don’t feel there are adequate alternatives to driving home after a night of drinking,” he said. “If we had better cab service, if we had options like transportation networking companies, and if we had a well-known and convenient public transportation service, then that would go a long way toward providing more alternatives to drunk driving.”

I couldn't agree more. Grits has long held that such structural barriers to getting drinkers home from the bar districts play a big role in preventing more substantial reductions in DWIs. Austin has failed to invest in public transportation on anything remotely like the scale required to accommodate its recent, fantastic growth rates. And our antiquated taxi regulations are more about protecting a local oligopoly than maximizing benefit to the public. Again from the article:

Sara LeVine, founder of ATX Safer Streets, a group aimed at reducing impaired driving through late-night transportation options, said she’d like to see the city issue more taxi permits and legalize transportation networking companies while protecting existing cab services.

But Ron Means, general manager of Austin Cab, said both ideas have the potential to decimate the taxi industry in Austin and endanger residents who might get in a car with a unvetted driver working for a transportation networking company.

I don't know about you, I'm far less afraid of a sober, "unvetted driver" than a drunk one. And the idea that rideshare services like Uber, Lyft or Sidecar "endanger residents" more than traditional cab companies is dramatically overblown.

The website for ATX Safer Streets, a group begun after the horrific crash at this year's SXSW event, has a good number of interesting research and proposals for expanding transportation options to reduce DWI. IMO they're very much onto something: There's a limit to how much an enforcement-only approach to DWI can affect the problem when structural design, regulatory and zoning issues encourage the problem police are trying to solve through arrests and jail threats.

See prior, related Grits posts:

• Public transit can prevent DWIs
• A private sector remedy to DWI?
• 'Are some cities built to encourage drunk driving?' I'm talking to you, Houston
• Why so few DWIs in Berlin? Public transport
• Public transport, less restrictive zoning would reduce DWI

Fuel cost spike boosts state revenues but also criminal justice costs

The Texas Tribune had a brief piece on rising gas prices and their effect on the state budget, linking to this interesting report from LBB (pdf) about increased costs during the 2008 spike in gas prices. Since I paid about $3.70 per gallon when I last filled up the Gritsmobile, I suppose it's a timely moment to examine the criminal-justice implications of higher fuel prices.

In 2008, according to LBB, both oil and natural gas prices spiked, and I was interested to learn that TDCJ utility costs from rising fuel prices that year actually outstripped the much-more publicized added cost to transportation from more expensive gasoline. Fuel costs for utilities went up $8.8 million in 2008 from the previous year, or 9.7%. For now that's not an issue. The Tribune notes that "prices for other types of electricity tend to track natural gas prices, so electricity prices have not shot up — for the moment." TDCJ's total fuel-related costs associated with utilities were a whopping $99.9 million in 2008. That's a big number.

Transportation fuel costs, by contrast, increased 31.9% when gas prices spiked, but that represented just $4.1 million extra to TDCJ's budget, for a total of $17 million spent by TDCJ on transportation fuels in 2008. That line item will inevitably go up for them now, as well.

More severely affected by higher transportation fuel costs is the Department of Public Safety, where troopers spend lots of hours just driving the highways looking for traffic violators. In 2008, DPS fuel costs increased $6.4 million, or 56.3%. I'm sure they're already seeing a similar increase right now, budget cuts or no. Ditto for local police and sheriffs who operate patrol units - an ill-timed extra expense in an era of declining budgets and local property tax revenue.

Perhaps this bespeaks an hidden agenda behind the push for "checkpoints" for driver licenses, insurance, DWIs, border security, etc. ... why should troopers or local police spend money on gasoline driving around looking for violators when they can sit in one place, cast a huge net, and force the public to filter through it like a sieve while their vehicles remain inexpensively parked?

Oil selling at $110 per barrel certainly helps replenish the state's coffers, but that doesn't automatically translate into higher line items for fuel costs in state agency budgets. And especially when it comes to things like prisoner transport, there's only a limited extent to which it's possible to reduce the number of miles driven and still perform the core functions of the agency. If TDCJ is going to house prisoners in Dalhart or Fort Stockton, for example, they'll at a minimum have to drive them out there after initial processing and back to a regional release center when their time is up. If they have a health crisis, become a discipline problem, or need to be moved for any other operational reasons, the number of miles driven grows even higher. Short of closing such outlying units, which might not be a bad idea since they're also notoriously hard to keep staffed, you don't get to not pay for transportation cost as long as prisoners are housed there.