A reluctant scoop: Changing intepretations of DNA mixtures vex legal system

DNA has often been referred to as the gold standard of forensic evidence. And when comparing a single sample to a suspect, that's true. When DNA evidence includes mixtures of DNA from multiple sources, however, the scientific community is still figuring things out. And it takes years for new knowledge to pass down from the highest-end basic research to the work tables of practicing DNA analysts at front-line crime labs.

The most recent such development: improvements in DNA science and interpretation techniques have caused practitioners to change how they calculate probabilities when it comes to singling out a defendant based on DNA mixtures (i.e., when biological evidence includes samples from more than one person). In the most extreme instance, the new method reduced a one in a billion probability that evidence matched a particular suspect to around one in 50, the Texas Forensic Science Commission's Lynn Garcia told the Texas Criminal Justice Integrity Unit (TCJIU) on Wednesday. The issue was first publicly revealed in Texas and, to their credit, the courts and relevant agencies have been quick to confront the challenge, even if nobody quite knows yet what to do.

Grits has put off writing about this topic for a while, mainly because I hoped the MSM would pick up the story  - it's a big one, with national and even international implications - and thus do me the favor of not having to write up a complicated issue (this blog is a hobby for me, after all). But it doesn't appear anyone else will cover it, so it falls to your correspondent to break the news.

The hows and whys of the shift in DNA analysis are complex and sciency. My own math acumen and knowledge of DNA testing is such that, while I can mostly follow what's being said, and have learned much of the vocabulary, I can't pretend to fully understand. So I won't put on airs by attempting to explain what little I do know. It's damn complicated, which is partly why it's taken so long for the issue to percolate to the fore.

At the TCJIU, Garcia told us that the world's leading experts, five of whom will advise Texas on how to address the matter, were all meeting in Poland last week hashing through many of these same topics. One of those experts, Dr. Bruce Budowle, teaches at the UNT Health Science Center and has been providing technical support to the FSC, the Court of Criminal Appeals, and the state prosecutor and defense lawyer associations (for whom he put on webinars ten days ago). Some of the issues which came up in the impromptu discussion at the TCJIU - e.g., must samples be re-tested or may the math just be re-done - are among those on which the the world's leading scientific minds as yet have no firm opinion, said Garcia. We're entering entirely uncharted waters.

The DNA-mixture issue was first publicly discussed at the August 14th Forensic Science Commission meeting, then formally announced in a blandly titled notice issued Aug. 21st by the Texas Forensic Science Commission which landed like a bombshell within the highest echelons of Texas legal circles. Titled, "Notification re: FBI Allele Frequency Corrections and DNA Mixture Interpretation Issues in Texas," the document's dry language revealed a new bleeding-edge conundrum facing the legal system's use of ostensibly gold-standard forensics.

This all began when the FBI identified a handful of errors in its CODIS DNA database (51 problems out of tens of thousand of entries) and issued a public notice saying that the change in any probabilities affected would be insignificant. Garcia said the largest discrepancy estimated from the data-entry errors would have reduced a likelihood of one in 260 billion that it belonged to another person to one in 225 billion. With seven billion people on the planet, that looked like a yawner.

But some Texas prosecutors asked for their probabilities to be recalculated, anyway, and when they came back, they were affected to a far greater extent than had previously been portrayed. The most radical difference involved the case mentioned above where a one-in-a-billion probability was lowered to around one-in-fifty, said Garcia. At that, prosecutors and the FSC perked up and took notice.

It turned out, the difference stemmed not from the data entry errors but because - in response to all that complex and sciency stuff that I'm not going to attempt to explain here - the FBI had changed its methodology for calculating probabilities in mixed DNA samples and moved to a new method which they considered more accurate. According to the FSC notice, "Changes in mixture interpretation have occurred primarily over the last 5-10 years and were prompted by several factors, including but not limited to mixture interpretation guidance issued in 2010 by the [national] Scientific Working Group on DNA analysis" (see here).

When they changed methodologies, though, scientists didn't think to notify prosecutors, much less the defense bar. Apparently, nobody wondered, "What happens when you apply the new method to old cases?," much less, "What if a defendant included by the old method is excluded or undetermined under the new one"?

Those are the questions the wider legal community is struggling with now, at the moment in Texas but very soon across the country and everywhere on the planet where DNA evidence is used in courts.

So many other questions are raised, it boggles the mind to consider. No one knows how many cases are involved, but the fear is it's a lot: Many more than in the FSC's hair microscopy review, which is itself expected to take years.

Further, Texas' mechanism for notifying defendants about past forensic errors has proven inadequate. And while people may be entitled to court-appointed lawyers to get DNA retested or the results recalculated, the state has no viable mechanism for matching lawyers to defendants and, anyway, few criminal defense lawyers have experience filing habeas corpus writs - a point Court of Criminal Appeals Judge Barbara Hervey emphasized at the TCJIU. Many if not most counties outside the major urban centers don't have anyone in the local bar with significant post-conviction writ experience.

Texas is arguably better situated than most states to address these questions. The Forensic Science Commission provides an important and trusted clearinghouse that stakeholders from both sides of the bar and the scientific community, for the most part, all consider a fair broker. Indeed, that's the main reason why Texas is the first state to address this: The FSC is out there actively scouting these issues, not sweeping them under the rug.

Moreover, our DNA testing statute is one of the most robust in the country. And the state's new junk science writ provides a solid basis for litigating forensics claims, particularly those as in this case where the issue stems from advancements in science rather than errors or misconduct.

Finally, this session the Legislature expanded the jurisdiction of the Office of Capital Writs to make it the Office of Capital and Forensic Writs, presaging exactly this sort of development. (Grits supported this idea, which was dubbed by critics the "OCW Empire Expansion Act.") Regrettably, though, no extra money came with that added mandate. And with the small agency recently changing leadership and facing a series of intense deadlines in numerous capital cases this fall, wizened observers fear handing the agency any new duties related to forensic writs would utterly overwhelm it.

Luckily, the Texas Indigent Defense Commission for the first time this biennium was given a new pot of money which could fund this work through the OCFW if that's what state leaders decide to do. The commission next meets in December. Between them and the Governor's office, which Garcia said had already stepped up to the plate with funding from the Criminal Justice Division to help with the initial reaction, there should be resources to at least triage the issue and create a plan, which would be an improvement from where we are now.

All that to say, Texas has a few more tools in the toolbox than most other states to address this cluster$#@k. But it's still a cluster$#@k.

RELATED: Go here to view Dr. Budowle's presentation to the Forensic Science Commission's Aug. 14th meeting, beginning at the 2:04:30 mark. The Commission's working group on DNA mixtures will meet in Dallas on Sept. 18.

AND MORE: The Marshall Project linked to this post in their 9/8 daily email and referred to one of their own recent articles, "The Surprisingly Imperfect Science of DNA Testing" which hones in on some of these mixture issues with a dramatic case study.

End of an Era: Rissie Owens replaced as parole board chair

There was a time when Rissie Owens and her husband Ed were the ultimate Texas prison power couple. He ran TDCJ's institutional division overseeing all Texas prison units and she chaired the parole board which decided how full those prisons would stay. It was a cozy, all-in-the-family arrangement.

Ed retired a few years ago to take an ill-fated turn running the Texas Youth Commission during its darkest days. And now the Houston Chronicle reports that Gov. Abbott has replaced Rissie Owens as parole board chair with David Gutierrez, "who has served on the parole board since 2009, served as the sheriff in Lubbock for 11 years and was chairman of the Texas Commission on Jail Standards and the Texas Correctional Office on Offenders with Medical and Mental Impairments Advisory Board. He is a past president of the Texas Corrections Association and the Texas Jail Association."

I like Rissie; she knows how to disagree without being disagreeable and has never been anything but charming and gracious toward me. She grew into the job and in her early days didn't understand how to manage her relationships with the press or the Legislature. Some of her public comments, particularly early on, earned her a reputation as a hard-ass. And sometimes she said things that were just confusing and wrong. Moreover, her defiance of the federal judiciary over assigning sex-offender conditions to offenders not convicted of sex crimes bordered on the insensible.

OTOH, under her watch rising parole rates have accounted for much of the slack space that allowed Texas to close three prison units. Especially on revocation policies, the board embraced reform more than most local probation departments, which did not see revocation rates decline nearly as much as on the parole side, though they were given basically the same tools to accomplish the task.

I spoke briefly this morning with Bill Habern, an attorney based in Huntsville who has practiced in front of the parole board for four decades. He said that "while she's not the best chairman we've had, she's certainly not the worst. Many issues were not in her control. But she was in the job too long and that gives too much of an opportunity for the office to become focused on power and politics and become stale. That would be true of anyone who stayed in office that long, so that's not a condemnation of her personally. But it's time to move along." He thinks Gutierrez has been a fine board member and expects good thing from the former Sheriff.

Habern mainly faulted Owens for failing to address consistently bad legal advice that led the board down rabbit trails the courts would then predictably shut down. Two in particular he mentioned were imposing sex offender conditions on people not convicted of sex crimes and illegally terminating the parent-child relationship without due process. He said she remained loyal to her lawyers even after they consistently gave advice that put the board cross-ways with federal courts and other state agencies.

Habern also faulted Owens for keeping parole commissioner Pamela Freeman as a parole commissioner long after her shortcomings had been identified in multiple grievances by attorneys who practice before the board. Instead, Freeman kept working until she was indicted last year for document tampering in a case which may go to trial by the end of the year. There were plenty of red flags before it came to that, said the lawyer.

Finally, Habern added via followup email, "Even after our law firm had serious differences with the policies of the Board we felt were unconstitutional, and litigation was filed, I must say that Owens and the other board members and commissioners (except Freeman) treated us totally professionally, and with respect. I never felt a hint of retaliation from the legal differences which ended in the court room. I thought that spoke and speaks well of Owens and the other panel voters."

Say what you want to about Rissie Owens - and I'm sure readers will, in the comments - but her departure marks the end of an era for the nation's largest state prison system. Grits wishes her well in all her future endeavors.

An under-celebrated holiday

Apparently today is National Grits for Breakfast Day, I learned via Twitter.  All recipes (e.g., see here and here) and no criminal-justice policy, but still, I'll take it.

Image via La Comida de Clary

Recommendations from Sandra Bland legislative hearing

Check out this compilation of legislative recommendations submitted to the Texas House County Affairs Committee during their July 30 hearing regarding the Sandra Bland episode. Via the Texas Association of Counties. My own suggestions were recorded here.

The entire hearing lasted more than seven hours; you can watch it online here. Find written testimony submitted to the committee here.

Reviewing 2015 criminal justice reforms, and other stories

Here are several recent stories which merit Grits readers' attention:

Reviewing criminal justice bills from 84th Texas Legislature
See the Texas Criminal Justice Coalition's 84th session wrap-up document.

Debating legacy of Texas 2007 de-incarceration reforms
The Texas Criminal Justice Coalition's Ana Correa and Marc Levin from the Texas Public Policy Foundation co-authored a column which implicitly replied to an earlier guest column minimizing the importance of reform measures passed eight years ago. Grits earlier offered my own rebuttal to the piece.

Too many jails get loophole in bill requiring in-person visitation
The bill to preserve in-person visitation at county jails was a bit of a mess, reported the Dallas News, leaving room for counties to game the system and pretend they're already invested in new systems to get in under an arbitrary deadline. There should be some means to go back and force these agencies to enable in-person visits, especially for those who announced their interest in changing over only after the bill was filed.

Sheriff blames deputy's murder on Black Lives Matter
A mentally ill man shot a Harris County Sheriff's Deputy and the Sheriff blamed the Black Lives Matter movement based on exactly zero evidence. The Harris County Sheriff runs the largest mental hospital in Texas, but he ignores the mental illness angle and blames his political enemies. Pathetic.

Hands up!
Two Bexar County Sheriff's deputies shot a man who supposedly had his hands up at the time. KSAT-TV paid $100 for cell phone video of the killing, which seems to have the Sheriff's Office more hot and bothered than what their employees did.

Kids or Criminals?
That was the title of a Dallas Morning News feature on youth who grow up incarcerated.

Be sad - but not scared
Here's a good editorial from the Fort Worth Star-Telegram putting coverage of violent crime into perspective.

Oliver Sacks on the reliability of eyewitnesses
Neuroscientist Oliver Sacks passed away recently and his death reminded me of an excellent short essay he wrote a couple of years back on the reliability of eyewitness identification. I've read several of his books; his passing was a loss.

CORRECTION: An earlier version of this post misread data from a DPS gang assessment report and that sub-item has been removed as has the reference to it in the headline. Grits regrets the error.

Tear gas fired into state jail dorm at 'largely motionless inmates'

When prisons have high rates of staff turnover - thanks in large part to low pay, long hours, and a lack of air conditioning - you end up with inexperienced corrections officers, dumbed down supervision, and bad decisions. Reported Ted Oberg at KTRK in Houston (Aug. 27):

A corrections supervisor fired a canister from a tear gas rifle inside a Lychner State Jail dorm at a crowd of inmates at short range, hitting an inmate in the shoulder and sending him to the hospital for burns and other injuries, according to records and interviews.

A video obtained by Ted Oberg Investigates shows the incidents leading up to the shot as well as the canister being fired from the tear gas gun into a crowd of largely motionless inmates, hitting one with a shower of sparks.

The Texas Department of Criminal Justice's initial review of the incident, in which Lt. Cody Waller fired the canister on May 19 soon after 11:20 p.m., "revealed several mistakes," TDCJ officials told ABC-13.

Among those mistakes: That canister fired at the inmates is designed for outdoor use, not inside a dorm and that any "chemical agents should have been administered through the door rather than in the middle of the housing area," TDCJ officials said.

Waller was put on a 10-month probation on July 8 but kept on the job at the Humble-based facility.

Reading the details from Oberg's account, the episode exhibits not so much malicious behavior by the supervisor as confusion, frustration at facing a situation beyond his skill set to resolve, and a general lack of professionalism. In the absence of more able management, unit staff appeared to make stuff up as they went along instead of following their training, even though the inmates posed no immediate threat. Noted Oberg, in the video, "Waller and other staffers walk right through the inmates. They are clearly not being aggressive to the guards."

It's hard to pin responsibility for any one incident on anybody besides the inmates and staff involved, but the diminution of experience and competence among TDCJ staff thanks to many years of high turnover to me is a likely secondary cause for this sort of event. We've heard much about the need for police to use de-escalation tactics at traffic stops to prevent events like the Sandra Bland arrest, but that skill's just as or more important for prison guards. And apparently nobody on duty at the Lyncher State Jail that night in May had the skills to de-escalate a tense-but-not-yet-violent situation.

See TDCJ's statement on the incident.

Press ignores most important TX de-incarceration legislation of 2015 session

Grits remains surprised that MSM coverage of new laws taking effect in Texas September 1st have omitted the state's most important sentencing reform since the Lege altered probation and parole rules in 2007: Raising theft thresholds for property crimes to account for inflation since the levels were set in 1993.

As Grits earlier had summarized, the measure passed as an amendment after a senate bill failed to get a House floor vote. The resulting legislation will reduce incarceration for property crimes at the margins, a move this blog has advocated for years. The most immediate budget impact will come from shifting state-jail felony charges to the misdemeanor courts. (The threshold at which theft becomes a felony increased from $1,500 to $2,500.) The change should also reduce the proportion of theft cases charged as serious felonies based solely on the property valuation, reducing incarceration in the long term.

By keeping the old thresholds for so long, as each year went by, it essentially became a felony in Texas to steal less and less stuff, creating a form of incarceration creep that ratcheted up penalties for lesser offenses without the Legislature doing anything. One may have preferred they index the thresholds to inflation going forward, but this was a needed short-term fix.

Coupled with legislation to allow state jail felons to earn "diligent participation credits" for participation in education, vocational, treatment, or work programs, and the 84th Legislature may have created room for the Texas Department of Criminal Justice to close a couple more state jail unit sooner than later.

These were incremental changes, but significant ones. Heaven knows why the press hasn't given them the profile they deserve.

RELATED: Political correctness won't cut Texas' prison population.

Policy wonk job fair at Office of Court Administration

There are a several interesting job openings right now at the Office of Court Administration, including two support staff for the upcoming Timothy Cole Exoneration Review Commission (see here and here), which must hold its first meeting by October 31st. Your correspondent, readers may recall, is an advisory member to that panel thanks to my new job. There's another researcher slot open crunching data on indigent defense.

In addition, higher up the food chain, there's a posting for the Executive Director's job at the Office of Capital Writs following Brad Levenson's abrupt but not unexpected departure. And there's an opening for OCA's Director of Public Affairs with past director and former Robert-Duncan staffer Megan Lavoie recently leaving that post. Finally, the OCA has posted an opening for its Chief Financial Officer after CPA Glenna Rhea Bowman retired to focus on her musical career. That's quite a few significant jobs open at once for a not-enormous agency.

Qualified readers should consider applying for said positions, or else badger whoever you think would be good for this or that spot into submitting an application. Texas needs good people in all these jobs.

Kangaroo court in Waco: No reason needed to arrest packing pastor with CCL

Gun ownership is on trial in Waco, so why aren't the NRA and all the open-carry advocates going nuts over what's happening regarding prosecutions from the the Twin Peaks biker massacre?

In McLennan County, visiting Judge James Morgan ruled after an examining trial that there was sufficient cause to have arrested a 65-year old concealed carry permit holder who wasn't wearing a biker cut but a Christian t-shirt (he's chaplain to the Bandidos and two veterans groups) because he was carrying legal personal weapons. The judge declared there was probable cause to support an arrest even though no police "officer could offer evidence that Yager conspired to commit murder, assault or any crime that day" Like everyone else arrested in the episode, Yager's bail was initially set at $1 million.

An earlier examining trial found probable cause to arrest a Brenham couple even though police agreed they were "merely present at a murder" that there was no evidence they committed.

Legality aside, how is it that a Texas judge can declare police don't need a reason to arrest legal Christian gun owners and there's not immediately an army of Second Amendment protesters beating down the DA's door? The silence from that wing of the political spectrum on this issue is deafening.

Regardless, the law doesn't seem to matter in Waco anymore. These are kangaroo courts and a flat-out embarrassment to the state.

RELATED: Why won't authorities say how many in Twin Peaks massacre were shot by cops?

Overbuilt Texas county jails turned private prison boom into bust

John MacCormack at the SA Express-News described in this morning's paper massive overbuilding at Texas county jails which has mostly gone unnoticed by the press and the public:

In June 1995, Texas jails had 64,000 beds, and were operating at 80 percent capacity, with 7,775 beds available. In June 2015, having added nearly 30,000 beds, they were operating at 70 percent capacity, and had 19,870 available beds.

The number of federal and contract prisoners in county jails has declined in recent years, due in part to changes in federal policy.

Where in 2000, the U.S. Border Patrol apprehended 1.67 million people, by 2014 the figure had dropped to fewer than 487,000, and has stayed low since. Detentions by Immigration and Customs Enforcement also recently have dipped after a longtime rise.

The story describes a phenomenon with which Grits readers should be familiar, in which private prison companies and local politicians carrying their water would argue that:

A detention facility built for federal inmates would create local jobs, a steady cash flow for the county and, once the bonds were paid off, a county-owned prison. And by using a public facilities corporation to borrow the money, taxpayers would be shielded if anything went wrong.

It was an easy money pitch often heard in rural Texas during an era that made the state the private prison capital of the country as companies built more than 50 facilities with as many as 60,000 beds.

Three decades later, the boom is over. And as the public sector's need for private prison beds has diminished, the tally of failing prisons in Texas is increasing, with some already vacant for years.

The bust is evident on a rural tour of the state, where more than a dozen once-profitable facilities have failed. At least seven of them, which together borrowed nearly $200 million, are in arrears on bond payments, figures from Municipal Market Analytics, a bond-research firm, show.

"Twenty years ago, everyone was bringing prisoners and everyone was making money. Then the state and federal governments figured out it cost too much to hold these guys, so they started looking at other means," Maverick County Sheriff Tom Schmerber said during a recent visit to the detention center there.

I must admit, it's particularly odd to see the story of the prison unit in Littlefield being considered a success story, though that's how it's being portrayed.

One of the few bright spots among the communities stuck with empty facilities is Littlefield, a city of 6,500 an hour northwest of Lubbock. There, a 300-bed, city-owned prison that has been vacant for more than five years is about to reopen.

"We have not been in arrears. We have made payments twice a year since it opened in 2000. With utilities and other costs, it's about $1 million a year, which is 13 percent of my budget," said City Manager Mike Arismendez, who announced his resignation last week.

Originally built for the Texas Youth Commission, the prison later held inmates from Idaho and Wyoming before closing.

Recently, Arismendez said, after years of futile searching, the city landed a new tenant, although it is not one that would be welcome everywhere. The Texas inmates will be violent sex offenders who require additional treatment before being released.

"The public seems to be very happy that we're going to reopen the facility and have jobs," he said. 

MORE: See AP's version of the story, the lede of which pithily declared, "More than a dozen once-profitable private prisons in Texas have failed, including one this month in South Texas, and records from a bond research firm examined by the San Antonio Express-News show at least seven are in arrears in payments on nearly $200 million in bonds."

Bad cops, bad puns, bad contracts, bad Democrats and other happy stories to cheer up your day

Here are several items which merit readers' attention even if I don't have time to blog on the topics:

• If coverage in the Express-News is indicative, a community forum on civil rights and policing in San Antonio didn't at all focus on the contract negotiations which just began between the city and the union. But that document and the state civil-service code which authorizes it govern SAPD disciplinary processes (read: what happens to cops who break the rules) to an arguably greater degree than the chief or DA. Campaign Zero has offered some thoughtful suggestions on reform provisions advocates should ask for in police contracts, many of which could apply to meet-and-confer contracts Texas.
• The screwups surrounding the case of Jerry Hartfield, a mentally ill man imprisoned in Texas  for 35 years after his conviction was overturned, are as mind boggling as they are banal. 
• Another suicide by an out of state motorist in a Texas county jail is being questioned by his family. This one likely won't receive the same attention as Sandra Bland. OTOH, without the uproar surrounding her case, one doubts it'd have been covered at all.
• Grits didn't realize they were still doing roadside cavity searches for drugs in Harris County in 2015. You learn something new every day. A bill passed this session and which goes into effect Sept. 1st would require a warrant for law enforcement to conduct body cavity searches. I wonder how many agencies will formally have to change their practices?
• The pun in this headline about bite mark evidence was as inevitable as it is inexcusable. See related coverage from Jordan Smith, formerly of the Austin Chronicle, and an op ed from the National Law Journal.
• Here's a reminder that Democrats sucked on criminal-justice policy in the '90s. Grits hasn't forgotten.
• Voters will decide bail reform in New Mexico.
• Here's a strident but justified call for more aggressive use of presidential pardon power. 
• Read Prof. Sam Gross on "The staggering number of wrongful convictions in America."

Fire! Jailhouse informants and Texas arson cases

Two recent high-profile news stories shined a spotlight on the use of incentivized jailhouse snitches to supplement flawed arson science in high-profile murder cases:

• Jeremy Stahl, Slate, "The Trials of Ed Graf"
• Maurice Possley and Maurice Chammah, The Marshall Project, "Jailhouse snitch claims secret deal in death case"

Grits has no time at the moment to comment at any length. But long-time readers know the intersection of informants and flawed arson science cuts across two of my long-time interests, so I may come back to these items as the vicissitudes of time and convenience permit. For now, I'll encourage everyone to read both stories and offer up in the comments any observations, arguments or suggestions which may consequently arise.

Why won't authorities say how many in Twin Peaks massacre were shot by cops?

Let's not mince words: It's absurd and disingenuous that authorities in Waco haven't yet released results from ballistics reports to tell us how many of the nine deceased and 18 wounded at the Twin Peaks massacre were shot by bikers and how many by cops. And every court hearing or public pronouncement where they avoid divulging that surely-by-now-known information undermines their credibility and gives the impression that many if not most victims were killed by police officers, not outlaw bikers.

Next week, we'll finally see examining trials (which are only allowed in cases where the D.A. has not sought an indictment from a grand jury) for a few defendants, but even then it seems likely the state will skate by without answering the fundamental question of who shot whom.

At Above the Law, Texas Southern's Tamara Tabo explains how DA Abel Reyna and his former law partner, District Judge Matt Johnson (who issued a gag order in the case) have successfully tamped down media access to even basic information about what happened that day. It's a good update of where we're at and why, give it a read.

New spotlight shines on old problem of ineffective police disciplinary processes

Police accountability issues have risen to the forefront of public discussion in recent months to a greater extent than at any period in Grits' adult lifetime.  For example, in an Aug. 18 staff editorial, the Houston Chronicle opined:

HPD has developed the reputation of a department where police brutality goes unpunished. In 2013, the Texas Observer ran an award-winning, two-part article titled "Crimes Unpunished," which documents routine problems of officers failing to do their jobs while getting off after unnecessarily resorting to violence.

"Out of 706 complaints about excessive force, HPD disciplined only 15 officers. For 550 shootings, HPD disciplined none," the Observer reported, documenting the statistics from 2007 through 2012.

"The message is clear: Either Houston police almost never abuse their power, or they abuse it with impunity."

These numbers should be troubling not only for civil rights advocates, but also for average Houston taxpayers who want to know that their police department is doing its job correctly. At their core, officers are supposed to serve as lookouts, life preservers and taxis: They either protect people around them, help people in need, or shuttle dangerous people into the criminal justice system. Now Houstonians are paying for inconsistent results.

In his campaign for mayor, state Rep. Sylvester Turner announced a plan Thursday to spend $85 million on 540 more police officers to fill the Houston Police Department's ranks ("Turner would expand police," Page B1, Friday). This follows on Police Chief Charles McClelland's request for $105 million to hire 1,200 new officers.

If Houston is going to hire new cops, then City Hall has to find a way for them to bring a new attitude to policing, as well.

Mayoral candidate Ben Hall, a former city attorney, has called for more body cameras to serve as a check on officers ("Hall plans permanent HPD body cameras," Page B1, Aug. 12). Cameras are a right step, but they haven't proven effective in preventing unnecessary violence from officers. After all, a dashboard camera didn't stop a state trooper from threatening to shoot Sandra Bland with a Taser.

Technology can't fix a broken soul.

Houston PD's disciplinary process is governed by their own special section of the state civil service code (Ch. 143 of the Local Government Code) and thus is largely immune from local intervention. The main influence a strong mayor can have will be budgetary. On the disciplinary front, perhaps the paper should begin polling local legislators to see what they might do to improve the department's ability to hold officers accountable. In the coming months I'll revisit some of the longstanding reform suggestions for the civil service code, some of which date back 20 years in my experience, maybe longer. These are longstanding problems; it's the spotlight that's new.

Texas quietly rescinded ban on food stamps for first-time drug offenders

The Houston Chronicle reported (Aug. 19) on a change in the law which received little publicity. Brian Rosenthal's story opened:

Texas soon will allow tens of thousands of residents convicted of drug crimes to receive food assistance from the federal government, joining almost every other state in ending a ban that once covered the entire nation.

Legislation approved during this year's legislative session will make Texas the 44th state to opt out of the ban, which former U.S. Sen. Phil Gramm, R-Texas, inserted into President Bill Clinton's 1996 welfare reform package.

Under the new policy, which takes effect Sept. 1, first-time drug felons will be able to get food stamps as long as they comply with the conditions of their parole and do not commit a second offense while receiving assistance. They still will be ineligible for cash help through welfare.

Residents convicted of non-drug-related felonies will continue to be able to get benefits, as they were never included in the ban.

The change could help many of the 56,860 Texas residents currently on Community Supervision for drug offenses, according to the Texas Department of Criminal Justice, and many more who already have cycled out of parole. It is unknown how many of them may seek food stamps, however.

Advocates hailed the move as a landmark reform for Texas, saying the scant attention it received during the session belied the transformative effect it could have on those most in need of help.

"It isn't about rewarding people convicted of crimes. It's about making sure that they do not become repeat offenders, and to do that, we need to give them some help," said state Rep. Senfronia Thompson, D-Houston, who spearheaded the change via a standalone bill and then, after that failed, through an amendment to a noncontroversial bill. "This will give them an opportunity to regain respectability by going out into the marketplace and making a living."

The bit about "ending the ban" in Mr. Rosenthal's lede is a bit strong. The restriction of the change to a first offense will limit the new law's effectiveness. ("Diminished the ban," perhaps? "Inched away from a total ban"?) Texas may have formally opted out of a federal ban (hurrah! we're 44th!), but then the Legislature of its own accord retained it for a large class of drug offenders. Regardless, the new law will help some people and provide a floor to build on in coming sessions.

Bail reform promoted in wake of Sandra Bland tragedy

The Houston Chronicle's Leah Binkowitz has a story (Aug. 19) titled, "Bail reform urged after Sandra Bland death." In it, Johnny Mata of the Greater Houston Coalition for Justice declared, "The death of Sandra Bland was a travesty of justice." "Sandra Bland would probably be alive today if Texas would've had a system that is fair," he said. Here's how these groups framed the issue:

His coalition reflects more than 25 organizations across the area. He was joined Wednesday by experts like law professor Sandra Guerra Thompson, director of the University of Houston Law Center's Criminal Justice Institute, who said the need for bail reform is a national concern but is especially needed in Houston.

By following pre-determined bail schedules, magistrates ignore their responsibility to take individual factors into consideration to ensure that the does not merely become a punishment for being poor, she and others argued. Instead it's meant to reflect an individual's flight risk and potential public safety concerns. Had a more nuanced risk assessment instrument been used in Bland's case, she argued, "the question would not be, 'Does she have $500?' but, 'Is she a risk to come to court?'"

Representatives of the Harris County Sheriff's Office and the Texas Jail Association could not be reached for comment Wednesday afternoon.

Bland's case is not unique.

"There are far too many people in Texas jails and prisons that don't need to be there," said Brandon Dudley, legal counsel for state Sen. Rodney Ellis. Many of those individuals, some 75 percent in Harris County jails, are detained simply because they cannot pay their bail.

Longtime readers will recognize these groups are singing my song. Grits' preference would be to shift away from money bail entirely and go to a risk assessment system. These debates are happening all over the country, not just in Texas, but the poignancy of the Sandra Bland tragedy gives the push here extra energy and focus.

Whitmire: 'Zero tolerance' for suicides or deaths in county jails

This quote jumped out at me from state Sen. John Whitmire, whose Criminal Justice Committee will investigate jail safety in the wake of the Sandra Bland tragedy at the behest of the Lt. Governor: “I’m going to have zero tolerance for suicides or deaths in jails.” According to the Dallas Morning News, "In the state fiscal year that ends this month, 29 people have died by suicide in Texas jails."

But the issues surrounding "deaths in jails" are broader than just designated suicides. In 2014, there were 615 deaths in custody in Texas, by my count with 410 of them in state prisons and 103 in the custody of County Sheriffs. A few of those were in Sheriffs' custody were killed by deputies in the field, but mostly they're deaths in county jails. See the AG's master list, which regrettably does not include cause of death nor really much useful information at all.

This morning Grits pulled the names of people who died in the custody of Texas County Sheriffs since January 2014, as reported the Texas Attorney General's office. Here's the list as of today: 183 have died in Sheriffs' custody since January 2014, including 80 so far in 2015, a statistic which includes Sandra Bland and appears on pace to exceed last year's number.

See related Grits posts:

• Learning from Sandra Bland: First thoughts 
• A suggestion for the 'Sandra Bland Drivers Rights Act' 
• Waller County DA sets up Sandra Bland investigative panel 
• Passionate first Lege hearing on Sandra Bland tragedy

Will SCOTUS require warrants for cell-phone location data after Texas Lege failed twice to do so?

Here's a good summary of the state of legal challenges asking the federal courts to require a warrant for cell-phone location data.

Texas came far closer to requiring a warrant for police to gather cell-phone location data in 2013 than in 2015. This year, a House bill received a late vote from Chairman Abel Herrero, a bill opponent, and was never set for a floor vote by the Calendars Committee. (In 2013, the same bill was placed on a floor calendar too late to actually receive a vote.) In the Senate, Lt. Governor Dan Patrick sent it to the State Affairs Committee chaired by Joan Huffman instead of John Whitmire's Criminal Justice Committee, as would be typical of a bill adjusting the Code of Criminal Procedure. She exercised her pocket-veto power, a prerogative of committee chairs, and refused to set the bill for a hearing.

The Lt. Governor can kill legislation nearly at will in the Senate, so if Dan Patrick chooses to send a bill to Joan Huffman for disposal, there's not much anybody can do about it (except maybe amend Senate legislation in the House). But when the Calendars Committee won't set a bill with 93 joint and coauthors for a House floor vote, after the Calendars chairman voted for the bill in committee, no less, then the bill faces a larger leadership problem that extends beyond the Lt. Governor.

It's possible the federal courts will require a warrant for cell-site location information (CSLI) based on an interpretation of the Fourth Amendment, but that path is uncertain and SCOTUS has only recently begun to overcome the knee-jerk deference to law enforcement on search-and-seizure questions which has characterized its rulings throughout most of the Drug War era.

Grits would prefer a legislative warrant requirement to one written by judges, particularly ones as on this court who are as ancient as they are august. Asking octo- and septuagenarians to apply the Fourth Amendment to 21st century tech (preferably without needing to imagine tiny constables stowed away on coaches) may prove too much for them. If they screw it up, it could be hard to fix. And if there's a lesson to be learned from the federal Electronic Communications Privacy Act of 1986, it's that judging what's important at any given moment is a moving target that must be regularly updated as technology evolves, which is easier done in statute than in case law.

OTOH, one hopes SCOTUS does implement a warrant requirement since a state-level bill in Texas faces clear, persistent obstacles in both legislative chambers, not because the membership of both bodies don't support the bill but because leadership has denied them the opportunity to demonstrate it.

Catching up on criminal-justice reform news

Having just returned from a much-needed and oft-interrupted two-week vacation, your correspondent today spent a little time perusing the news I've missed while I've been focused elsewhere. Here are a few highlights which caught my eye and may interest Grits readers:

• Ana Correa of the Texas Criminal Justice Coalition has taken a job as criminal justice program officer at the Public Welfare Foundation and will be moving to Washington D.C. in the fall. The Houston Chronicle published a somewhat hagiographic announcement praising Grits' long-time ally and some-time employer.

• The Forensic Science Commission on Friday agreed to take up a complaint by the national Innocence Project challenging the use of bite mark evidence in criminal cases, reported the Dallas News' new Austin bureau chief, Brandi Grissom.

• I'd rather see Rio Grande Valley officials battling corruption as opposed to "perceptions of corruption." Stop the corruption and perceptions will take care of themselves.

• It was a banner week for Williamson County justice: A judge is headed to prison on felony gun charges and the District Attorney is headed to jail for contempt.

• At Texas Monthly, Pam Colloff writes about former prosecutor Charles Sebesta getting his comeuppance.

• Houston mayoral candidate and state Rep. Sylvester Turner has proposed increasing manpower at the Houston PD by about 10 percent. Grits has opposed hiring more cops in Austin, where we've hired too many cops at too-high salaries over the last 15 years, but in Houston the case for more officers is stronger. "The department employed 5,470 officers in 1998, and is projected to operate this budget year with about 5,260, despite enormous population growth during that time." The big problem, unstated in the article: Police pensions are already underfunded in Houston and adding more officers without fixing the situation exacerbates the situation. Even without factoring in pensions, the Chronicle estimated Turner underestimates the cost of expanding the police force by more than $20 million.

• Last month Grits published an interview with Rebeccah Bernhardt of the Texas Fair Defense Project on high caseloads by lawyers appointed to represent indigent defendants in Texas. Now, a lawsuit out of California will address whether public defenders handling 700 cases per year can effectively represent their clients. In Texas, lawyers with caseloads that high experience an even greater burden because they typically must also manage a small business - their own practice.

• Doug Smith, a former inmate and past colleague of your correspondent when I worked for the Texas Criminal Justice Coalition, has a new blog on which he published a letter to a human resources manager discussing his criminal history and why it shouldn't preclude him from employment. Good read.

• A bureacucratic error at a South Texas jail that improperly released an inmate has led to two forced resignations. But nobody's yet resigned or been fired at the Waller County Jail after Sandra Bland's alleged suicide. Go figure. See several recent columns calling for jail and policing reforms in the wake of the Sandra Bland episode, as well as written testimony from TCJC and Grits' own suggestions for reforms to address the situation.

• What if mass incarceration actually increases crime? According to this report:

A new paper from University of Michigan economics professor Michael Mueller-Smith measures how much incapacitation reduced crime. He looked at court records from Harris County, Texas from 1980 to 2009.Mueller-Smith observed that in Harris County people charged with similar crimes received totally different sentences depending on the judge to whom they were randomly assigned. Mueller-Smith then tracked what happened to these prisoners. He estimated that each year in prison increases the odds that a prisoner would reoffend by 5.6% a quarter. Even people who went to prison for lesser crimes wound up committing more serious offenses subsequently, the more time they spent in prison. His conclusion: Any benefit from taking criminals out of the general population is more than off-set by the increase in crime from turning small offenders into career criminals. 

    See the full article by Mueller-Smith.

• To reduce prison populations by half, as the #Cut50 movement has suggested, would require reassessing sentences for violent as well as nonviolent offenders. Here's a rare op ed focused on why and how to reduce incarceration for offenders convicted  of violent crimes.

• A radical approach - paying high-risk offenders not to commit crimes - appears to work according to an evaluation of a seven-year experiment in Richmond, CA. 

• The New York Times last week published an excellent story on the nexus between high bail and innocent defendants pleading guilty to avoid losing their jobs or remaining incarcerated for long stretches awaiting trial.

Political correctness won't cut Texas' prison population

A pair of researchers from UT's Institute of Urban Policy Research and Analysis suggested in a Fort Worth Star-Telegram op ed last week that "Reinforcing a national narrative that celebrates the success of the Texas model [of probation and parole reform] spreads harmful misinformation about the ability of fiscal austerity designs to substantively reduce incarceration and racial disproportionality."

Regular readers know Grits is sympathetic to criticisms that de-incarceration proponents overstate the import of the 2007 reforms dubbed "the Texas model" (see here, e.g.). Those changes happened eight years ago and, until the state raised thresholds for property theft this spring to adjust for inflation, there hadn't been another significant bill to stem incarceration since then. Like an aging high-school jock reliving former glory, there are only so many times folks want to hear about how great you were back in the day. Boasts about the "Texas model" exude a whiff of that sort of dated self aggrandizement and deserve rebuttal.

But it's also wrong to say those reforms failed because the state did not "reduc[e] the number of people Texas incarcerates" or that the reforms were solely rooted in "fiscal austerity." That lacks historical context.

For starters, those reforms included more than $200 million per biennium in new money for treatment and diversion programming, which hardly bespeaks fiscal austerity. That's a significant investment which the Legislature has sustained, if not added to, in subsequent sessions.

And to criticize the reforms for not reducing incarceration ignores the situation faced by Texas state leaders at the time. Dating from the period when Ann Richards and a Democratic controlled Legislature nearly tripled the size of the prison system, Texas' prison population had been on an uninterrupted upward trajectory and was predicted to add 17,000 more prisoners to its bloated rolls between 2007 and 2012. Instead, the prison population declined slightly overall since then, creating the opportunity to close three prisons for the first time in the state's history.

That's no small thing, in this writer's view, even if there's far more to be done.

Grits considers it wrong and counterproductive to downplay the importance of halting prison population growth or reducing incarceration rates. The real, more substantive criticism to me is that, afterward, our politicians rested on their laurels and joined the national speakers' circuit to pat themselves on the back instead of doubling down and finishing the job over the subsequent eight years.

I was also non-plussed to read the suggestion that reform efforts are "best led by the experts — those who have experienced incarceration themselves, together with their families." Really? Who are these inmates and inmate-family groups who will devise de-incarceration policies that our Republican legislature will enact? This is a politically correct throwaway line, not a serious comment. While there are a handful of former inmates who are capable of participating in the process at the conservative Texas Legislature and understand what will move Republican lawmakers, most struggle just to find employment, meet parole requirements, and keep their heads above water. Insisting that only ex-inmates are qualified to lead reform efforts sets the project up to fail.

Worse, that stance allows more mainstream constituencies to abdicate responsibility. Folks in the free world - mostly Democrats,  as a matter of historical fact - created the laws and policies which spawned mass incarceration in Texas, and those of us in the free world must take responsibility for reversing it. This can't just be something that's mainly the problem of incarcerated people and their families. We need conservative leaders, progressive leaders, and community activists; we need law enforcement leaders, thoughtful prosecutors, lawyers, and policy wonks; we need lots and lots of enthusiastic people with good ideas from all walks of life. Mass incarceration is not just a prisoners' problem.

Grits also isn't a fan of the authors' "call for racial impact statements for all criminal justice policies, practices and proposals." With certain notable exceptions like the drug war and police interactions at traffic stops, I don't find it constructive nor useful to view most criminal justice policy through a racial frame. Do I consider the justice system color-blind? Of course not. But neither do I see every prisoner as a victim of the system and I'm sympathetic to folks in minority communities who are disproportionately victims of crime and deserve protection.

According to Politifact, for example, "young black men, ages 14 to 24, suffer disproportionately from murder. While the numbers have been falling since the mid-1990s, in 2008 about 16 percent of homicide victims were young and black. As a group, they represented just 1 percent of the population." And since overwhelmingly most of those murders are committed by other young black men, in truth some disproportionality in prison populations is entirely reasonable, even if it's not politically correct to say so. (Grits sympathizes more with a racial disproportionality critique if one cabins discussion to the drug war, where differences in incarceration rates are far less defensible.)

I suppose I'm arguing for a dose of realism when it comes to de-incarceration, mainly because I want it to actually happen instead of just talking about it. There are systemic stakeholders - cops, prosecutors, judges, probation departments, the prison system, and of course the politicians in charge of it all - who can be ignored in an op ed but not in the legislative/policy arena.

This column, however well-intended, charts a path for reform which leads down a dead-end.

Texas' 2007 reforms were important but should be viewed as a first step, not a final result.  Much more remains to be done and there appear to be legislators in both parties who intend to try, as evidenced by juvie de-incarceration and the successful effort to adjust property thresholds for inflation.  So while I agree with many of the authors' aims in this column, greater strategic and tactical acumen will be necessary to accomplish those goals.