The Great County Jail Privatization Bust

Regular readers won't be surprised at the Bloomberg headline, "How local governments got burned by private prison investments" (Oct. 1). But this graphic demonstrates in macro a story Grits has detailed at the micro-level around Texas.

The Bloomberg story details how "The IRS is going after counties that issued tax-free bonds to build jails used by federal agencies, which should have commissioners in several Texas counties shaking in their boots.

Texas jails have even more spare capacity than depicted in this chart, with 30 percent of beds empty as of Aug. 1, 2015.

Students cited for terroristic threat in volume

From a story in the Fort Worth Star-Telegram (Oct. 1) about new federal reporting requirements for public schools regarding student discipline, Grits ran across this fact-bite: "Statewide, a total of 1,463 Texas students were cited for making a terrorist threat during the 2013-14 school year, according to Texas Education Agency PEIMS (Public Education Information Management System) data."

I hadn't seen that figure during all the "I stand with Ahmed" brouhaha, but that's a pretty big number.

Read more here: http://www.star-telegram.com/news/local/community/fort-worth/article37241166.html#storylink=cpy

Surcharge Amnesty pushed off till late next year

Grits learned yesterday that Texas DPS, which during session said they planned to do another Amnesty program for the Driver Responsibility surcharge by the end of the year, has now pushed that back until "the end of the new year (2016)."

Since reform legislation on this subject died an ignominious death in 2015, there's nothing in the law making them do this. But they promised House Homeland Security and Public Safety Committee Chairman Larry Phillips they'd do another Amnesty, so presumably the agency wants to keep that pledge before the next legislative session in 2017. There's no reason, though, they shouldn't do it immediately. Why wait?

Meanwhile, over the weekend Eric Dexheimer at the Austin Statesman had a story (Oct. 3) detailing the travails of a family whose vehicle was hit by an uninsured driver. The article included this discussion of the Driver Responsibility surcharge and its role boosting rates of uninsured and unlicensed motorists.

policies promoted by Texas lawmakers also have produced more illegal drivers than otherwise would exist.

The Texas Driver Responsibility Program was passed in 2003 with the promise of raising money for the then-cash-strapped government and making roads safer. It levies civil surcharges against people who are convicted of driving without a license or insurance, or driving while intoxicated, or who are habitual traffic offenders. The fees are on top of any criminal fines and court costs defendants pay.

The fees, which with nonpayment penalties that can quickly escalate into thousands of dollars, create a cycle that unnecessarily makes and keeps drivers illegal, said Emily Gerrick of Texas Fair Defense Project, which has advocated repealing the program. Many can’t pay — about 60 percent of the surcharges go uncollected — so they simply continue to drive illegally because they must. Others living paycheck to paycheck may stop buying insurance to cover their fines — meaning they, too, eventually lose their licenses.

According to the Department of Public Safety, more than 1.3 million Texas drivers currently have their licenses suspended through the surcharge program. The top reason, said Gerrick: fees for driving without insurance and driving without a license.

The program “is actually putting more cars on the road without licenses — making public safety more dangerous,” she said.

It has been such a failure that one of the lawmakers who created it recently begged the Legislature to trash it.

“This program was never intended to cause as much harm as it has to Texas families,” Mike Krusee, who represented Williamson County in the 1990s and early 2000s, wrote in May. “For many individuals, the program has dramatically and negatively impacted their ability to work and has resulted in more unlicensed and uninsured drivers on the road.”

Yet hospitals, which are recipients of the surcharge fees, have successfully lobbied politicians to keep the program alive.

“We recognize the funding mechanism is not ideal,” said John Hawkins of the Texas Hospital Association. But, he added, until lawmakers figure out how to replace the money, the industry will continue to oppose the surcharge program’s repeal.

Some TX law enforcement not reporting shootings to AG

Thanks to diligent investigation by both the Washington Post and the Guardian, Grits must update the previous report on officer involved shootings in Texas from September. There were seven reported to the Texas Attorney General, as now required under a new statute, but four others reported by the Guardian and the Washington Post were not reported to the AG.

So Grits wanted to add links to information about these additional shootings to provide a more complete picture. In the meantime, the Attorney General should contact police agencies, especially these four, with a reminder that the new reporting is now required for all shootings.

Here are the Texas police shootings in September that the AG never heard about:

September 4th: Sully Lanier, 36 year old white male, shot to death by Parker County Sheriff's officers in Springtown, after he ran at them firing a weapon, as reported by WFAA.

September 21st: Up in Paris, an unarmed man, Steven McKenney, sitting on a concrete barrier by the highway was approached by a DPS trooper on a welfare check and ended up tased and then shot to death. Combined with those reported earlier, this makes three separate episodes on this day.

September 23rd: In McKinney, a 35 year old white male, Joseph Khammash, was shot to death after an altercation with police related to a domestic dispute. According to press reports he was armed and holding his own family, his ex-wife and a child, against their will in a van.

September 27th: According to news reports, an armed Ponder man, Victor Coronado-Martinez, was shot and killed by police after they responded to a shots fired call. Coronado-Martinez shot at the officer and the officer returned fire, killing him, police said.

So, it appears that, in the first month of public reporting, police agencies understated shooting deaths by at least 36% (assuming there were no other unreported shootings).

Eleven shootings in September, not seven. Just having accurate data on this topic will fundamentally alter the terms of debate. More people are being shot by police in Texas than anyone was aware, even those paying closest attention.

MORE: From the Houston Chronicle.

RELATED: Seven in September: First look at officer-involved shooting reports reveals incidents which escaped media attention.

UPDATE: The Parker County Sheriff filed their shooting report the day after this blog post appeared.

Susan Hawk back on the job, tablets for jail inmates, LWOP totals, and other stories

Here are a few items which Grits doesn't have time to blog about but which merit Grits readers' attention:

• Dallas DA Susan Hawk is back on the job and under the spotlight after a rough couple of months
• Even though incarceration rates in the U.K. are markedly lower than here, British Justice Secretary Michael Gove reportedly was inspired to pursue a series of justice reforms after visiting a Texas prison. One of those includes letting prisoners out early for diligent participation in work, educational and treatment programs, a measure which Texas this year enacted for state jail felony prisoners.
• Good idea, somewhat weird execution on the Nueces Sheriff's plan to let jail inmates have access to tablet computers in order to fill up their free time. He's partnering with a company that provides prison phone service and wants to charge them by the minute.
• Read Murray Newman on Snitches, the Feds, and Prosecutorial Misconduct.
• See too-nostalgic look at the Walls, Texas' first prison unit in Huntsville, on the event of the 166th anniversary of its opening.
• It's increasingly becoming possible Texas will not see any new death sentences in 2015 for the first time since the death penalty was last reinstated. That said, the number prisoners serving Life Without Parole - a sentencing category which didn't even exist a decade ago in Texas - is becoming significant. Grits compiled these data* from TDCJ Annual Statistical Reports (available here):

Prisoners in TDCJ Sentenced to Life Without Parole

2014: 683
2013: 581
2012: 485
2011: 382
2010: 290
2009: 203
2008: 121
2007: 49
2006: 4

*Total at the end of each fiscal year, 2015 not yet posted

Most Twin Peaks bikers off ankle monitors, few if any prosecutions likely

None of the 177 Twin Peaks bikers remain incarcerated in the county jail, even though all of them initially were assigned a $1 million bond, and of 135 required to wear ankle monitors, reported the Waco Tribune-Herald, all but 22 have been allowed to remove them "after agreements between their attorneys and state prosecutors to amend the conditions of their bonds." Grits thought these comments, representing one of the few informed views I've seen on the topic from anyone outside the DA's office, are likely prescient.

Houston attorney Paul Looney said two of his three clients, a married couple from Brenham, were not required to wear the ankle monitors and his third client had his removed in an agreement with prosecutors.

“I can only speculate, but my guess is that the ones that are still wearing the ankle bracelets present some type of specific flight risk, or, in the alternative, their lawyers are lazy and they just haven’t come in to visit with the prosecutor,” he said. “A lot of lawyers haven’t done that.”

Looney cautioned that there likely is no connection between levels of culpability and those still wearing ankle monitors.

“I have gone through the discovery, and right now I am of the opinion that they might not successfully prosecute anybody who is still alive. I think they may have a couple of dead people they may be able to convict, but the ones who committed the crimes are dead. Everybody else was defending themselves or other people,” Looney said.

If it's really true that no one alive can be prosecuted, history will judge the roundup of 177 bikers much differently than the DA and local officials are presently portraying.

Relatedly, GQ published the most extensive piece of investigative journalism yet on the Twin Peaks massacre, piecing together narratives from dozens of interviews. Give it a read.

Routine brutality documented at Harris County Jail

The Houston Chronicle's James Pinkerton and Anita Hassan have published an important investigative feature on the Harris County Jail ("Jailhouse Jeopardy: Guards often brutalize, neglect inmates in the Harris County Jail, records show," Oct. 3). The article opened with a rather brutal anecdote:

Norman Hicks, a retired butcher, had been in the Harris County Jail about 10 days when other inmates pleaded with jailers to have him transferred to the mental health unit.

Hicks, 72, had been placed in general population for violating probation in a family violence case even though intake workers determined he suffered from a combination of severe mental problems: bipolar disorder and schizophrenia. The inmates worried Hicks might be killed by others he annoyed, according to a federal lawsuit filed by Hicks' children.

Instead, Hicks died after being punched by a jail guard involved in 11 previous use-of-force incidents. The guard hit Hicks with a closed fist, breaking bones in his face. He fell and hit his head, and the guard left him bleeding on the floor of an interview room. The Harris County medical examiner ruled the 2011 death a homicide.

What happened to Hicks in one of the nation's largest county correctional facilities underscored its most glaring weaknesses.

He did not receive the care he needed in what sheriff's officials describe as the county's largest de facto mental health institution.

He found himself trapped in a violent milieu riven by thousands of fights each year.

He was struck by a guard who failed to seek medical care or report the incident.

Over the past nine months, the Houston Chronicle has reviewed more than 1,000 disciplinary reports provided by the Harris County Sheriff's Office. Nearly half of those internal affairs investigations from 2010 through May 2015 resulted in discipline against jail staff who often brutalize inmates and attempt to cover up wrongdoing but rarely lose their jobs. Court records show jailers seldom faced criminal charges even in cases where they used excessive force.

Grits readers will recall, as the paper recounted, that "In June 2009, the Justice Department concluded after its own yearlong investigation that inmates' constitutional protections had been violated by excessive violence and by substandard medical care that led to an 'alarming' number of prisoner deaths. The Justice Department has taken no public action since then despite what records show are similar instances of unreported beatings, inmate deaths and medical neglect."

The authors document how "the jail has become more violent in recent years, with fights, assaults and attacks on staff escalating." To quantify that: "Fights among inmates break out an average of 11 times a day. Assaults between inmates are reported about four times daily. Inmates assault staff about once each day. And guards report using force against inmates almost daily, according to official jail statistics. But what often goes unreported is the use of excessive force against inmates." Yikes! Here are a few more of their significant findings:

Harris County jailers were disciplined more than 120 times for misconduct involving abuse of authority or misuse of force, including beating, kicking and choking inmates. At least 15 were handcuffed at the time. In 84 of those 120 cases, jailers or supervisors failed to file required reports, lied or falsified documents. Stephen LaBoy, 25, was beaten by six jailers in his cell after flashing a mirror at a guard station. Drissa Pickens, 28, was assaulted by an accused murderer after a jailer unlocked a cell door and allowed the attack.

At least 70 inmates have died in custody since 2009. Three, including Hicks, died after guards used force. Other elderly or ill inmates were unable to make bond and died while awaiting trial. Latoshia Clark, 36, died pre-trial, of AIDS, after six weeks in jail for drug possession. Ten who died committed suicide, including Alex Guzman, 28, who hanged himself while two jailers ate a Domino's pizza and missed required cell checks. Guzman's case was among 35 documented instances where jailers skipped required cell checks, or faked records to hide skipping them.

Most jailers disciplined for abuse of authority or unnecessary force received only short suspensions. Since 2010, 33 of those jailers were fired for use of excessive force, unprofessional conduct, neglect of duties and lying or falsifying reports. Criminal charges were pursued against guards in only six of those cases. Jailer Brandon Whitaker grabbed inmate Tommy Maiden around the throat during a shouting match and squeezed so hard that he left bruises in the shape of handprints, jail photos show. Whitaker got a five-day suspension without being charged.

Dozens of jail employees were disciplined after they fraternized or had sex with inmates, brought in contraband or concealed relationships with prisoners and gang members. A training academy was disbanded and guards as young as 18 until recently completed only online courses as a cost-cutting measure. Former Deputy Tony G. Richards was prosecuted for having sex with an inmate in the jail laundry. His lawyer declined comment.

Grits was also pleased to see them link the issue to punitive bail policies by local judges, citing critics who believe: "jail violence and chronic overcrowding are symptoms of the deeper problem of local judges' strict bond practices. Few accused offenders get released unless they can pay a non-refundable 10 percent commission charged by a Harris County-approved bondsman - a group that collectively makes millions from the county's tough lockup policies." 

The Sheriff can't influence local judges' bond policies which keep the jail stuffed to the gills. Even so, former Harris County Sheriff Adrian Garcia, who resigned his post to run for Houston mayor, must feel as though the Houston Chronicle has signed on to perform Sylvester Turner's opposition research. That's not the case, the paper began investigating the jail in earnest after a particularly terrible incident unrelated to the campaign. Still, it's hard to imagine a more damaging critique of Garcia's tenure as Sheriff than that laid out in the Houston paper this week. All this happened on his watch.

These reporters' research methodologies could be replicated at other Texas county jails, btw, so reporters in other jurisdictions should take notice and follow Hassan and Pinkerton's model. This is an excellent example of the continued value of old-school, paper-trail journalism.

Seven in September: First look at officer-involved shooting reports reveals incidents which escaped media attention

A new law requiring Texas law enforcement agencies to report officer-involved shootings to the Attorney General went into effect September 1st. There have been a couple of news reports about the publication of this data, but Grits thought it worthwhile to see what the new reports look like. So far, documentation related to seven different shootings has been posted online.

UPDATE: There were at least four more Texas police shootings in September than were reported to the AG.

Even with just a few reports in, it's clear the law is already starting to do what its authors presumably intended - giving a fuller picture of the statewide frequency (too frequent) and severity (all over the map) of police shootings, which sometimes aren't even publicized in the local media. While most shootings do get local press coverage, few ever rise to state or national attention. But like the tree falling in the forest with no one to hear it, media silence doesn't mean the victims were less shot.

There are not enough cases yet to draw any conclusions about broad trends (right now, it's "anecdote" not data). And the reports don't list names for officers or victims. But the early cases are interesting. Here are summaries of the seven posted so far, two of which, interestingly enough, came from Freeport, TX:

Freeport: Officer mistook phone for gun
The very first report under the new law sounds like so many others: an unarmed black man was shot while sitting in his car after being stopped by police after what they say was a tip that the man had crack cocaine. The injured driver was eventually charged with evading arrest and his passenger with public intoxication, but no drug charges. A local news report filled in the story:

A Freeport officer spotted the vehicle and tried to pull the driver over. At first, the driver, identified as Mayberry, stopped, but then took off, leading police on a short chase.

The fleeing vehicle stopped in the parking lot of an apartment complex at 1010 Magnolia. The officer ordered the occupants to show their hands. As the officer approached, the driver reportedly turned his body towards him while holding a dark colored object. Fearing for his life, the officer fired, hitting the suspect in the shoulder.

A later news report provides this salient detail: "No gun was immediately found at the scene, but a dark-colored cell phone was on the ground outside the driver's door of Mayberry's car after the shooting."

Plano: Practice makes perfect
The next day, in Plano, it looks like a cop accidentally shot someone at the shooting range. Grits could find no press coverage of the incident.

Houston: A tragic 'change of heart'
Two days later in Houston, a 21-year old black male was seriously injured after police responded to an emergency call. This incident didn't get much local coverage but according to one report, the man was standing in the middle of the road shooting a gun. After initially complying with officer's commands, the HPD spokesperson said that the man "had a change of heart," reached into his waistband, and the officer shot him three times (in the back, groin and leg).

Freeport: A mysterious death
After that flurry of police shootings, Texas took a short breather, but the next incident report for September 13th raises more questions than it answers. Two officers from the Alvin, Texas police department apparently shot a 29 year old white male to death down in Freeport, nearly 40 miles away, while executing a warrant. According to the document filed with the Attorney General the man was armed. There appears to be no press coverage of the incident at all. There's also nothing over in the AG's "death in custody" database to match the incident.

Balch Springs: At least they didn't shoot the dog
On September 16th, in another unreported incident, a Balch Springs officer responding to a vicious dog complaint shot an unarmed white woman at a single family home on Marriott Avenue. She was not killed.

Dallas: Suicide by cop?
Then finally, Monday September 21 saw shootings in El Paso and Dallas. The Dallas incident garnered significant press coverage as bystander video shows a half undressed, drug addled Gerardo Ramirez running through an apartment complex parking lot shooting a gun. He was killed after shooting at officers on the scene. There has been speculation this was a case of suicide by cop.

El Paso: To prevent an escape
In El Paso on the same day, a 24-year old female officer shot a 21-year old burglary-of-a-vehicle suspect while the man allegedly was trying to escape in a car. According to the AG report, the man had a deadly weapon, but it may have been the vehicle. The El Paso robbery suspect was injured but not killed.

* * *

Perhaps Grits will make this a monthly feature. For now, journalists should be aware of this new resource; clearly there are untold stories about shootings by Texas police waiting to be unearthed which heretofore have not been reported.

Chief: Body cam vendors doing 'the Johnny Manziel money sign'

Dallas Police Chief David Brown made a wry observation that the push for police to wear body cameras will lead to some lucrative contracts: “'It makes me want to retire and buy body camera stock,' Brown told an audience at a Verizon Wireless conference Thursday. 'It makes me want to sit on the beach and do the Johnny Manziel money sign. Because it’s a seller’s market.'”

The Texas Legislature ponied up $10 million for body cams this year and local agencies and DA's offices have spent millions more equipping officers with cameras in the last 12 months.

See related Grits coverage:

• Wearable tech and the corrections market
• Police tech: Bodycams, Google Glass, and cop cars of the future
• Taser's business model on police body cams

More on blaming prosecutors for mass incarceration, or, Pfaff's pfigures pfit Texas' pfacts

When Grits wrote about a David Brooks' NY Times column the other day, I'd failed to make the connection that Prof. John Pfaff, whose name looks like he should hail from Pflugerville, is the fellow who wrote a series of posts on PrawfsBlawg in 2014 which I quite enjoyed critiquing the National Research Council report on mass incarceration. Part 1 looks at the over-emphasis on the drug war. Part 2 and Part 3 argue against assigning too much importance to longer sentences. And Part 4,  Part 5, Part 6, Part 7, Part 8, and Part 9 look at the role of prosecutors. Part 10 considers red herrings surrounding private prison debates. Check them out.

This morning Grits spent some time reading this recent law review article elaborating Pfaff's views.

Some critics of mass incarceration will find Pfaff's work quite challenging. If you're Michelle Alexander and you come to accept Pfaff's premise, it would require rethinking big chunks of your analysis and underlying assumptions. For Grits, though, his work pretty closely jibes with my own observations over the years.

While this blog only tracks Texas closely and Pfaff is reviewing national data, I find myself largely in agreement with his analysis, if not all of the conclusions David Brooks would draw from it. Pfaff disputed claims that mass incarceration is primarily caused by the drug war. Instead, he pins blame on county-level actors, specifically local prosecutors, whom he demonstrates have used their discretion and increased power (boosted through a combination of mandatory minimums, enhancement mechanisms, and drug-war era SCOTUS decisions scaling back the rights of the accused) to file felony charges ever-more frequently, even as crime declined.

Grits has made similar calculations before for Texas with similar results. The rate of convictions here far outpaced arrests or crime rates since the turn of the century and the number of new direct sentences to prison continued to increase even as crime declined. So Pfaff's thesis mostly matches Texas' experience, in this author's view.

Pfaff discounts the drug war as a cause for mass incarceration to an extent Mr. Brooks perhaps overstates. There's no doubt the drug war accounts for some portion of mass incarceration, which Pfaff doesn't dispute. In Texas, the 16% of state prisoners with a drug offense as the primary charge would be about 24,000 prisoners, which is nothing to sneeze at. But the drug war accounts for an even greater portion of local arrests and disproportionately fills up local jails, court dockets, and probation rolls. And the contribution of drug charges to expanding the number of people with criminal records is greater than those offenders' representation in prison, where length of stay for user-level possession remains short. For police, county jails, and probation departments, the drug war remains a bigger driver of both volume and cost.

Even so, I agree with Pfaff that the empowerment of prosecutors to increase the number of felony convictions, even when crime declines, is a core driver of mass incarceration and remains the greatest barrier to rolling it back. A recent letter from the San Antonio city manager to uniformed police officers included the following data

Comparing 2015 YTD (year-to-date, Jan. 1 through May 23) to 2014 YTD:

• Violent crimes are down 0.3%
• Property crimes are down 10.5%
• Drug arrests are up 8.1%
• Weapons arrests are up 18.8%

These numbers show how, when actual crimes decline, it's still possible to boost arrests and convictions in America's 21st century justice system. Weapons arrests are mostly targeting people with criminal records in possession of a firearm, not people who fired a gun, while drug arrests are far and away mostly for simple possession, and mostly for pot. Previously convicted felons and drug addicts form a pool for potential arrestees whose offenses are basically status crimes and thus can be prosecuted even if there's no victim or harm.

Prof. Pfaff's right to look to county actors to explain mass incarceration. If Grits were to fault his analysis at all, it would be that he doesn't dig deep enough into county-level dynamics, where policing priorities play as meaningful a role as prosecution decisions and the drug war, which he discounts as a major driver of state-level incarceration trends, arguably has a more important impact than his writing portrays.

MORE: Prof. Pfaff responded to this post in a series of Tweets. Well done. The reason Grits doesn't Tweet is that I've never been good at making arguments in 140 character chunks, which he does quite ably.

Pot poll: Texans split on legalization, back reduced penalties

The Texas Lyceum poll has a reasonably large sample size and comes from a neutral source, so in a world of politicized polling, Grits tends to hold it in higher esteem than published polls from advocacy groups. So I was intrigued to see that the result on their latest "legalize marijuana?" question was 46% "yes," 50% "no." The pro-legalization contingent surged by 13 percentage points since the group last asked the question.

Moreover, as the Dallas News reported, "Of the 50 percent of respondents who opposed legalization, 57 percent said they would support reducing penalties for possession of small amounts."

That means three quarters of Texans would "support reducing penalties for possession of small amounts" of marijuana, which perhaps bodes well for state Rep. Joe Moody's bill to that effect. Fewer than one in five Texans oppose both legalization of marijuana and reducing penalties.

Source: Texas Lyceum

Suicide attempts at TDCJ spiked so far in 2015

The average monthly number of suicide attempts among prisoners under TDCJ custody increased 28 percent so far in 2015, from an average of 81.7 attempts per month in 2014, to an average of 104.5 attempts per month, according to a document forwarded to Grits titled "Emergency Action Center, Select Statistics, August 2015." The number of completed suicides, however, stayed the same, at an average of 2.6 per month both years (from a low of 0 some months to a high of 5, system-wide). Thirty-one people committed suicide in TDCJ in 2014; 21 had done so as of this August 2015 report.

According to the same document, the ratio of suicide attempts in 2014 was the highest in recent history at 64.1 per 10,000 offenders, and the monthly totals are higher, even, this year. Before that, the ratio was 50.3 per 10,000 in 2013 and hadn't topped 50 the decade prior.

Use of force/assaults on staff
Major use of force by staff was slightly higher in 2015 compared to last year, and in 2014 the rate of major use of force by staff per 10,000 inmates reached a decade-long apex, at 512.6 per 10,000. The rate of serious assaults on both staff and offenders are down slightly.

Major use of force happens much more at some units than others. Some may report zero, one or two incidents per month for months on end, while others like Telford, Coffield, Stiles, Clements, Jester IV, McConnell, Connally, Montford, Smith, Hughes, Robertson, and a few others account for double-digit incidents every month.

The rate of serious assaults on staff per 10,000 prisoners in 2014 was 50 percent higher than in 2006 - 6.0 per 10,000 prisoners compared to 4.0 per 10,000. Serious assaults in this case are defined as incidents where the staff person needs medical attention beyond first aid.

Blaming over-aggressive prosecutors for mass incarceration

Following Prof. John Pfaff of Fordham University, New York Times columnist David Brooks laid blame for mass incarceration primarily at the feet of prosecutors for harsher charging decisions related to low-level offenses.

Grits agreed with much of his analysis and have made similar observations myself. But I'm less willing to dismiss out of hand the role of the drug war and longer sentences in expanding mass incarceration.

For example, while it's true that a relatively small percentage of prisoners are incarcerated for drug crimes (in Texas, 16% of prisoners as of 8/31/14), a significant portion of violent crime is related to smuggling and drug sales as a result of privatized protection services for participants in an illegal market. We're talking about vendors who would be protected - as are, for example, Budweiser, Miller, or Corona - if they sold a different product. (The TV show The Wire depicted the relationship between drug crime and murder rates pretty graphically over its 5-season run.)

You'll frequently hear local law enforcement claim all or nearly all crime they see is related to drug addiction - e.g., burglaries to pay for drugs, etc. - to the point where Grits considers such comments overstated, especially when estimates of drug-caused crime top 80 or 90 percent. But there's little question that the drug trade is responsible for layers of criminality beyond the 16 percent of Texas prisoners locked up solely for drug possession or sales.

Our pal Adam Gelb from the Pew Charitable Trust corrected another overstated element from Brooks' column in a comment at Sentencing Law and Policy:

time served did increase substantially. Our Time Served report found that across all crimes it rose from 2.1 to 2.9 years (36%) from 1990 to 2009. For violent crimes, it went from 3.7 years (37%); property crimes 1.8 to 2.3 years (24%), and 1.6 to 2.2 years (36%) for drug crimes. This doesn't mean longer time served is the only or even the most important factor in prison growth. It's one of many, and can't be ignored.

Similarly, neither can any data-driven analysis, certainly in Texas, ignore the role of the drug war when it comes to low-level offenders cycling in and out of county jails. A column in the Houston Chronicle today titled "Harris County should stop jailing small-time drug offenders" isn't wrong that drug-addicted offenders, along with the mentally ill and those with "dual diagnosis," in the bureaucratic lingo (both drug addicted and mentally ill), soak up a huge proportion of local criminal justice resources when at root what's needed to reduce addiction and low-level criminality is more akin to social work than traditional punishment.

Check out a new, related report from the Baker Institute at Rice University and the Texas Criminal Justice Coalition detailing "the economic and social benefits of expanding drug diversion programs in Harris County."

My own view is that, just as the big-picture reduction in crime over the last two decades has many causes, there are many reasons, not just one, that incarceration rates have remained stubbornly high and not declined as much as overall criminality. One reason is longer sentences, another is the war on drugs, another is more aggressive prosecutors, another is the substitution of criminal law for civil regulation, another is the generally low quality of indigent defense, and there are several other candidates besides. None of these are mutually exclusive. Rather, it's the confluence of multiple factors that makes the mass-incarceration nut so tough to crack.

MORE: From Doug Berman.

Packed agenda at TX forensic commission Friday

What a packed agenda at the Texas Forensic Science Commission on Friday in Austin! Take a look, there's a lot happening. Here's a non-comprehensive taste of the issues they'll cover:

• Two new lab disclosures and five new complaints
• Discuss crime-lab accreditation program (shifted from DPS to FSC this session)
• Discuss status of forensic licensure requirement (must be implemented by 2019)
• Updates from two investigative panels on toolmark cases
• Update from investigative panel on digital forensics
• Update from bite-mark panel
• Update from hair microscopy panel
• Update from DNA mixture panel
• Update on arson case review and implementation of recommendations
• Update on status of Morton/Brady training for forensic scientists

And more ... It's going to be a long day.

Meanwhile, on Thursday (tomorrow), an FSC committee on DNA mixtures will reprise the agenda for which they could not obtain a quorum in Dallas two weeks ago.

FSC General Counsel Lynn Garcia may be the busiest mother of a two-year old I know.

Grits has complained for years that a lot of important stuff happens at the FSC and almost nobody in the media covers it. At the last FSC meeting there were two reporters there (Michael Hall from Texas Monthly and Brandi Grissom from the Dallas News), which is a lot for these events. And a third, the Texas Tribune's Terri Langford, showed up at the DNA-mixture meeting in Dallas. So given the extensive agenda and the unusual level of recent press interest in forensics, Grits will put the over-under on how many reporters will be there Friday at 2.5. Which is good, usually it's zero. There's a lot going on at this small agency for their activities to be as routinely ignored as they have been these last few years.

Bystander deaths from police pursuits significantly undercounted

High-speed chases by police are more common and more deadly than previously thought, reported USA Today in a story which opened (Sept. 29):

The U.S. government has drastically understated the number of people killed in high-speed police car chases, potentially by thousands of fatalities over several decades, a USA TODAY investigation shows.

The National Highway Traffic Safety Administration overlooked at least 101 motor-vehicle deaths in 2013 that were related to a police chase, according to a USA TODAY review of police reports and internal documents, court records, police-car videos and news accounts based on police statements.

NHTSA's count of 322 chase-related deaths in 2013 — the most recent year for which its records are publicly available — understates the total by at least 31%, the investigation shows.

NHTSA's undercount suggests that the actual number of people killed in police chases since 1979 could be more than 15,000 — far more than the 11,506 chase-related deaths found in the agency's public records — and that chases result in a death much more frequently than studies have stated.

The findings expose potentially major flaws in how the federal government tracks motor-vehicle fatalities and, to a lesser extent, how police document high-speed chases, which often result in innocent people being killed and have been sharply restricted in some cities.

An earlier report from USA Today in July was titled "High speed police chases have killed thousands of innocent bystanders."

Short shots on forensic error

Grits ran across a site with an excellent list of press clippings about crime lab problems and found several items I hadn't seen before.

Interviewing Brady Mills
Here's an interview with Brady Mills, the man in charge of all Texas DPS crime labs, from Forensic magazine in May on the topic of confronting flawed forensic science. Grits learned from the article that Mills is past president of ASCLD-LAB, a crime-lab accrediting body, the Association of State Crime Lab Directors and sits on their board. Note to Brady: You have a standing invitation to come do an interview/podcast on Grits. We could find a lot to talk about.

Rapid DNA and 'black box' software
In that interview, Mills discussed "rapid DNA," which refers to systems where a machine analyzes a swab and spits out a result without human interpretation. The other day, some of the nation's leading experts cautioned against using "black box" software systems alone to analyze DNA, insisting that human interpretation was required to understand where certain assumptions may lead to error. (Once assumptions become embedded in code, they become invisible and thus harder to detect and correct.) Rapid DNA sounds like it's headed in the black-box direction, perhaps problematically automating judgments that require more nuance than code can afford. That's certainly a concern on mixture cases, given what we now know about them. So far, no Rapid DNA system has been validated for use in forensic labs, but several companies are trying.

Indulging schadenfreude, or, we're screwed up but we're not Massachussetts
The Annie Dookhan fiasco in Massachussetts, where a crime lab worker intentionally framed defendants through faked forensic results, depicts the worst case scenario for a crime lab, with thousands of defendants potentially eligible to have their convictions overturned. Now, it turns out another forensic chemist in Massachussetts stole drugs and replaced them with counterfeit, potentially calling into question thousands more cases. These episodes call to mind the Jonathan Salvador mess in Texas, but that was on a much smaller scale. He handled about 5,000 cases and only a quarter to half of those were called into question. As that debacle demonstrated, though, just because hundreds or even thousands of people are eligible for relief doesn't mean that many will eventually get it. The systems for notifying defendants and getting them lawyers just aren't there.

Not West Virginia, either
In the New York Times Magazine this week, Emily Bazelon previewed a case at the West Virginia Supreme Court which will determine whether the state is obligated to turn over exculpatory DNA evidence after a defendant has entered a plea. Under Texas statutes and case law, the answer would clearly be "yes," there's an obligation to turn it over under the Michael Morton Act. Moreover, a guilty plea would not preclude a future innocence claim (Ex Parte Tuley). But Bazelon mentioned that, "The U.S. Court of Appeals for the Fifth Circuit [which includes Texas] has repeatedly ruled that 'a guilty plea waives the right' to claim that your right to exculpatory evidence has been violated." So maybe it's not perfect, but thank God for the Michael Morton Act, and in the case of Ex Parte Tuley, the Texas Court of Criminal Appeals!

Might flawed field tests contribute to Harris County drug exonerations?
Texas has witnessed dozens of cases out of Harris County where defendants are exonerated months or years after they plead guilty because a crime lab determines the substance they were charged with possessing wasn't drugs. Nobody knows for sure why this is happening, except that people plead guilty - often to time-served or probationary sentences - because they can't afford bail to get out of jail. But why are so many falsely accused in the first place? A theory presents itself from a couple of stories about erroneous field test results. One test can confuse soap or candy for drugs, while in Australia, a man was jailed when epsom salts were confused for meth. I wonder if faulty field test results help explain the rash of Harris County drug-case exonerations? They're up to more than 80 so far and insiders tell Grits to expect dozens or even hundreds more before the situation is resolved.

TX CCA candidates no longer need sigs from 14 appellate districts

Like most people, apparently including Court of Criminal Appeals candidate Sid Harle, Grits was unaware that the Legislature this year had removed a requirement that CCA candidates get 50 signatures in each of Texas' 14 judicial districts, a burden universally acknowledged as difficult given how little money is raised by CCA campaigns. Nearly everything they raise is spent traveling around the state by car to party events and forums where they'll get to speak for 2 minutes, half of which is spent explaining that Texas has two high courts and this is the criminal one. But the main purpose for traveling to those events is not to whip votes but to garner those signatures, which is no longer necessary.

Bruce Davidson at the SA Express-News called this a return to the "bad old days." He declared that:

Before legislators passed the law requiring the signatures in 2003, Texas Court of Criminal Appeals races were crowded free-for-alls featuring candidates hoping to get elected with an easy-to-pronounce or familiar name and nothing more.

“This court used to be a $3,000 lottery,” Justice Cheryl Johnson said in 2004. All that was required was paying a filing fee. Qualifications didn’t matter.

The signature requirement trimmed the horde of candidates to a handful who were reasonably qualified and willing to work hard enough to gather signatures. The laziest and least qualified candidates were culled from the ballot.

Still, the campaigns have remained the least visible political races in Texas. Few Texans can name a member of the state’s highest criminal appellate court, and the candidates can’t raise enough money to make a blip on the political radar.

I don't agree with that. For starters, the races were hardly free for alls. In the GOP primary in 2002, the year before the law changed, there were two candidates in each of the three CCA races. Dems had four candidates running for three seats that year. In 2000, the GOP field was more crowded, with 14 people pursuing three seats. Barbara Hervey and Sharon Keller pulled off come-from-behind wins in the runoff after trailing the day of the primary. But even then, Dems fielded only three primary candidates - one in each race.

To be fair, Judge Johnson's campaign in 1998 competing to run against and defeat Charlie Baird was one of the most hotly contested CCA races in memory, with Johnson facing seven primary opponents. And she's right that some of those weren't seriously campaigning but merely hoped to use the ballot to get their name out there, essentially seeking free advertising. But those folks don't win, and they didn't in her race. Meanwhile, to my mind, the additional candidates force everyone to do a better job of communicating with the voters and distinguishing themselves.

I'm not worried that Sid Harle won't stand out from the crowd in a CCA race, as Mr. Davidson feared. He's a super-qualified candidate and would make a fine CCA judge. But that doesn't mean he should get to stroll into the position without campaigning. We have elections in America, not coronations. And the changed rules make it less onerous for qualified candidates to sign up for the job.

While reserving the right to change my mind (I didn't know about it when it happened during session so haven't considered it before), for now I think I'm fine with this. I'm not at all sure those signatures did anything but empower a few party insiders and keep good people off the ballot.

Court okays voice recognition testimony 20 years after fact

When stare decisis and science conflict, case law tends to trump.

A case in point: The Texas Fourteenth Court of Appeals upheld a capital murder conviction (life sentence) in August in which the main inculpatory evidence was a voice identification made by a witness 20 years after the crime occurred. Since the standard of review was "abuse of discretion," the justices felt compelled to defer to the trial judge's ruling, which relied on a 1972 Supreme Court precedent, Neil v. Biggers. But Chief Justice Kem Thompson Frost offered up a concurrence suggesting the law and science are out of whack:

In  the  forty-three  years since  the Supreme Court of the United States articulated the Biggers factors, scientists have been studying whether these factors accurately predict the reliability of a witness’s identification. The findings raise concerns. Studies are ongoing, but the research results in hand tend to undercut confidence that the Biggers factors are truly indicia of reliability. The scientific literature suggests that though some of the Biggers factors relate to the reliability of a witness’s identification, others do not. Empirical research seems to be revealing that some of the factors may not be good indicators of reliability.

Chief Justice Thompson Frost adumbrated a sampling of research demonstrating why the factors judges are told to consider in Biggers don't jibe with modern science, much of which also relates to shortcomings in eyewitness testimony. In the end, though, she concluded that "Even though the scientific literature calls into question the validity of the Biggers factors, this court is bound to consider them" and, ultimately, to defer to the trial court. There's little question, though, that the Chief Justice has identified a rather junky brand of evidence which deserves closer scrutiny than it has heretofore received.

Via TDCAA.

Texas' civil-commitment program still flailing; violating its conditions no longer a crime

Despite all the changes to Texas' sex-offender civil commitment process this spring, most of which were necessary to comply with various court decisions, the program continues to look like a hot mess.

The state is still working out kinks in its revised program at the recently un-shuttered prison unit in Littlefield, where dozens of offenders have been moved. But to the extent that change solved any problems, it has also created new ones. Reported the Houston Chronicle (Sept. 27):

Since Sept. 1, as part of reforms to Texas' nearly 16-year-old program, from which no one had never graduated to freedom, the state has moved more than 180 offenders from halfway houses in Houston, Dallas, Fort Worth, El Paso and Austin to a re-purposed private prison in Littlefield, about 40 miles northwest of Lubbock. Even as it's getting started, substantive questions loom about whether the new program can be as effective as envisioned.

In relatively short order, officials concede the program struggled for months to find a site where it could operate, creating a new regimen program that will withstand mounting legal challenges. Officials' latest difficulties include how to provide effective mental health and therapy services, as well as jobs and resettlement programs, in a remote community in West Texas where those opportunities are mostly non-existent.

Most of all, the therapeutic program that's housed in a former prison, must not be a prison.

Littlefiled is in the middle of nowhere, so the chances of those sorts of treatment or reentry services cropping up there are slim and none.

In related news, recently Texas' Eighth Court of Appeals ruled that, based on new amendments to the law passed this spring, it is no longer a crime in Texas to fail to follow complete treatment under a sex-offender civil commitment plan. Moreover, the changes in the law are retroactive for all cases which have not resulted in a final conviction. In that case, the 8th Court of Appeals overturned a life sentence assessed for violating civil-commitment rules. And it probably won't be the last time that happens.

Silence on Twin Peaks massacre may 'blacken' reputation of Waco justice

Since the Twin Peaks massacre in May, officials in Waco have mostly succeeded in keeping biker-related criminal cases out of the press. But the silence has grown deafening, prompting AP, the Atlantic, and even the Waco Tribune-Herald opinion editor to call for transparency and lifting an ill-conceived gag order.  The Texas Criminal Defense Lawyers Association last week filed a complaint with the State Commission on Judicial Conduct against the Justice of the Peace who set million dollar bails for the 177 people arrested that day. More than 2/3 of those arrested that day had no criminal record, reported AP. Trib opinion editor Bill Whitaker fears that the official silence, based on a gag order which only applies to one case, "has the power to blacken for decades the reputation of American justice in Waco. It may already be too late."

To my mind, the Twin Peaks episode couldn't worsen Grits' view of Waco justice, but it surely confirms it.

Related:

• Kangaroo court in Waco: No reason needed to arrest packing pastor with CCL
• Why won't authorities say how many in Twin Peaks massacre were shot by cops?
• Veteran Waco cop 'randomly' chosen foreman of Twin Peaks grand jury
• Rigged game in Waco