They said you want kill people and not go to jail?? I said 'F--- ya'

Grits can't believe San Antonio PD let this officer back on the force. What do they think their constituents will say the day he shoots somebody? From the SA Express-News (Dec. 9):

A San Antonio Police Department officer was suspended for 30 days without pay for a social media post, according to records obtained by mySA.com

Officer Daryl A. Carle received the punishment after SAPD found a Facebook post on Carle's profile in August, suspension documents show.

“I love my job!!! They said you want kill people and not go to jail?? I said “F--- ya, Who don’t?... They said you afraid of the jungle?? I said “I ain’t scared of sh--... I’ve been wanting go jungle since watched that Predator movie…I love my job!!!!!! Lol," the post said, records show.

SAPD Chief William McManus said in a sit-down interview Wednesday that Carle told him the origin of the post was a quote from a YouTube video series.

The series, “Action Figure Therapy,” which posts funny and sometimes vulgar videos of action figures ranting about military and tactical topics. (The linked video contains NSFW language.)

San Antonio already faces enough problems on the police shootings front, keeping this guy on the force seems like they're just asking for karma to come smack them later. The entitlement to free speech is not an entitlement to a job.

Water outages, unreasonable court fees, pension and forensic follies, and other stories

In an ongoing effort to clear Grits' browswer tabs, here are a few items which merit readers' attention but may not make it into independent posts:

CCA 'patently unreasonable' in court costs opinion, says appellate justice
Texas First Court of Appeals Justice Terry Jennings issued a strongly worded 22-page concurrence declaring that Jani Maselli Wood was right about court fees, the Texas Court of Criminal Appeals was "patently unreasonable," and the high court should revisit the issue, reported Texas Lawyer. See related Grits coverage of fee litigation by Wood, herself a candidate for CCA judge in the 2014 GOP primary. She was quoted agreeing with the opinion, declaring, "They had to change decades of law to make me lose … The courts should not be revenue centers or tax collectors for the state."

Water outage ends at two TDCJ units
Nearly 2,000 prisoners and 400 staff at two Texas women's prison units, Hobby and Marlin, were without running water from Thanksgiving until Dec. 9, according to news reports. At the Hobby unit, for a while 1,400 people shared 27 portable toilets; 732 people shared 16 portables at the Marlin unit.

New juvie diversion programs starting up
Texas counties will soon begin diverting more juvenile defendants "from problem-plagued remote, state-run lockups into less costly community-based treatment and rehabilitation programs" closer to home which "produce better outcomes," reported Mike Ward at the Houston Chronicle. The plan amounts to "giving counties additional money to take care of youths in community-based treatment and rehabilitation programs instead of sending them to state lockups." Texas has already cut its youth prison population from more than 5,000 to around 1,000 now. But the reductions will be less than were initially advertised: "The state's five juvenile lockups hold just over 1,000 youths, down from more than 5,000 in state custody just seven years ago. The new plan would mean that at least 30 more youths would stay in local programs this year and 150 more next year." At one point, estimates were that hundreds more youth may be diverted, nearly depopulating Texas youth prisons entirely. That's not quite what's happening.

Why Argue? Stop arresting for minor pot possession
Dallas Police Chief David Brown says giving tickets for marijuana possession is "hard to argue with," but frets that people busted for pot might not be as easily coerced into becoming informants, and made some inexplicable noise about Timothy McVeigh. If that's all he's got, he really shouldn't argue. The full Dallas City Council will soon consider the issue. In 2015, how is this not a no-brainer?

Explaining Texas' prison boom and slicing the incarceration pie
Grits doesn't pay enough attention to the Prison Policy Initiative, which always produces useful, interesting work. Check out this post explaining the '90s Texas prison boom and another attempting to delineate the entire "incarceration pie" - i.e., a pie chart showing all forms of incarceration in the U.S. and their relative proportions. Notably, the thesis that more restrictive parole decisions caused the dramatic 5-year boost incarceration rates also works in the other direction. Slightly boosted parole rates primarily explain why Texas' prison population lowered enough in recent years to close three prison units.

Wishful thinking won't solve Dallas pension follies
What happens if pension obligations for Dallas police officers can't be covered by their failing investments?, wonders the Dallas Observer. The money shortfall begins 15 years from now but he budget-hole is so big, they must plan for a solution now.

Accreditation won't solve forensic follies
PBS Frontline had a good story in terms of articulating the scope of the national, indeed global crisis facing many traditional fields of forensic science. But it perhaps oversells the extent to which accreditation will solve the problem. It hasn't in Texas, though along with the Forensic Science Commission it's helped make the problems more transparent.

Summary: 2015 TX juvie and crimjust legislation
See a summary published in November of Texas legislative action on juvenile and criminal justice reform from the UT-Austin Institute for Urban Policy Research and Analysis.

FBI to Expand Tracking of Violent Police Encounters

Last night the Washington Post reported that the FBI will be expanding its system for tracking violent police encounters. In response to what the FBI called “a real human outcry,” the data collection will expand from tracking fatal incidents to tracking “any incident in which an officer causes serious injury or death to civilians.”

The FBI is also taking steps to address the unreliability of current data collection. In the past, the FBI has “rel[ied] on local police departments to voluntarily share information about officer-involved shootings,” but less than 3% of state and local police agencies have opted into sharing. Following the lead of the Washington Post and Guardian databases, which aggregate and report data in real time using crowdsourcing, the FBI stated that it will start collecting and sharing the data publicly in “near real-time” as incidents occur. However, the new system will continue to rely on police voluntarily providing the information, though this time the FBI says that local law enforcement has agreed to cooperate.

The FBI isn’t the only federal bureau reworking its data collection processes as they relate to officer-involved shootings and other violent encounters. As it so happens, yesterday I came across this report by the Bureau of Justice Statistics (BJS) that takes a critical look at the BJS “Arrest-Related Deaths” (ARD) program. By its own estimate, the BJS data collection, which also relied on voluntary participation by police, captured less than half of arrest-related deaths that occurred 2003-2010 and 2011 (2010 data was not available “due to a shift in data collection methodology between 2009 and 2011”). Without providing specifics, the report stated, “BJS has begun to explore the use of open-source data to identify arrest-related deaths in conjunction with a direct survey of law enforcement.” Like the FBI, BJS seems to be following the Washington Post and Guardian’s leads, but with a different angle, by using open-source data.

With all the movement around officer-involved shooting data collection, I've started a list of what you can find and where. This list is just a start and I’ll add sources as I learn about them. If you know of sources I am missing, please say so in the comments or reach out to me at amanda.woog@austin.utexas.edu.

One more thing – a note on language. A lot of different terms are being used to describe the data that is being collected (“arrest-related death,” “officer-involved shooting,” etc.). This is largely because of variance in the different data collections, but beyond that it’s because there hasn’t been a systematic examination of what should be collected and relatedly, what to call that dataset. Below I try to be clear about what information is being captured by each collection. Eventually, experts will need to take a critical look at what we’re collecting and the terms we are using to describe the data so we can approach conversations with a shared understanding of what we’re all talking about.

Crowdsourced Datasets

The Counted: People killed by the Police in the US. Uses crowdsourced data to provide a real-time record of people killed by the police. Dataset began Jan. 1, 2015.

The Washington Post database. Uses local news reports, independent databases and additional reporting to provide a real-time record of people shot and killed by the police. Dataset began Jan. 1, 2015.

Fatal Encounters. Uses researchers, public records requests, and crowdsourced data to provide a database of people killed by the police since Jan. 1, 2000. The website considers 2013 and 2014 to be complete datasets.

Killed by the Police. Uses news reports to provide a real-time record of people killed by the police since May 1, 2013.

Data Collected from Government Sources

BJS Arrest-Related Deaths. Uses data voluntarily submitted by law enforcement to report annually on arrest-related deaths. Collection was suspended in March 2014.

FBI Uniform Crime Reporting. Uses data voluntarily submitted by law enforcement in the Supplementary Homicide Report to report on “justifiable homicide,” which is defined as “the killing of a felon by a law enforcement officer in the line of duty.” (Author’s note: Assigning this definition to the term “justifiable homicide” is hugely problematic if we’re trying to increase police accountability.)

Police Foundation’s Public Safety Open Data Portal. Uses data submitted by law enforcement agencies participating in the White House’s Police Data Initiative to make available datasets on officer-involved shootings and other police activity. 27 agencies are currently participating, including the Austin and Dallas Police Departments.

Texas Database of Officer-Involved Shootings. Uses data submitted by law enforcement agencies to the Office of the Attorney General to create a dataset of officer-involved shootings.  Dataset began Sept. 1, 2015.

Hidden costs to families of incarceration, reentry

Here's an interesting report titled, "Who Pays?," attempting to assess the costs of incarceration on inmate families and the communities they live in. According to the executive summary:

long-term costs extend beyond the significant sums already paid by individuals and their families for immediate and myriad legal expenses, including cost of attorney, court fees and fines, and phone and visitation charges. In fact, these costs often amount to one year’s total household income for a family and can force a family into debt. Latent costs include, but are not limited to, mental health support, care for untreated physical ailments, the loss of children sent to foster care or extended family, permanent declines in income, and loss of opportunities like education and employment for both the individuals incarcerated and their family members, opportunities that could lead to a brighter future.

Specifically, the research group learned:

People with convictions are saddled with copious fees, fines, and debt at the same time that their economic opportunities are diminished, resulting in a lack of economic stability and mobility. Fortyeight percent of families in our survey overall were unable to afford the costs associated with a conviction, while among poor families (making less than $15,000 per year), 58% were unable to afford these costs. Sixty-seven percent of formerly incarcerated individuals associated with our survey were still unemployed or underemployed five years after their release.

Many families lose income when a family member is removed from household wage earning and struggle to meet basic needs while paying fees, supporting their loved one financially, and bearing the costs of keeping in touch. Nearly 2 in 3 families (65%) with an incarcerated member were unable to meet their family’s basic needs. Fortynine percent struggled with meeting basic food needs and 48% had trouble meeting basic housing needs because of the financial costs of having an incarcerated loved one.

Women bear the brunt of the costs—both financial and emotional—of their loved one’s incarceration. In 63% of cases, family members on the outside were primarily responsible for court-related costs associated with conviction. Of the family members primarily responsible for these costs, 83% were women.

In addition, families incur large sums of debt due to their experience with incarceration. Across respondents of all income brackets, the average debt incurred for court-related fines and fees alone was $13,607, almost one year’s entire annual income for respondents who earn less than $15,000 per year.

Despite their often-limited resources, families are the primary resource for housing, employment, and health needs of their formerly incarcerated loved ones, filling the gaps left by diminishing budgets for reentry services. Two-thirds (67%) of respondents’ families helped them find housing. Nearly one in five families (18%) involved in our survey faced eviction, were denied housing, or did not qualify for public housing once their formerly incarcerated family member returned. Reentry programs, nonprofits, and faith-based organizations combined did not provide housing and other support at the levels that families did.

Incarceration damages familial relationships and stability by separating people from their support systems, disrupting continuity of families, and causing lifelong health impacts that impede families from thriving. The high cost of maintaining contact with incarcerated family members led more than one in three families (34%) into debt to pay for phone calls and visits alone. Family members who were not able to talk or visit with their loved ones regularly were much more likely to report experiencing negative health impacts related to a family member’s incarceration.

The stigma, isolation, and trauma associated with incarceration have direct impacts across families and communities. Of the people surveyed, about one in every two formerly incarcerated persons and one in every two family members experienced negative health impacts related to their own or a loved one’s incarceration. Families, including their incarcerated loved ones, frequently reported Post-Traumatic Stress Disorder, nightmares, hopelessness, depression, and anxiety. Yet families have little institutional support for healing this trauma and becoming emotionally and financially stable during and post incarceration.

Wooginator police shootings database recognized

Kudos to Grits contributing writer Amanda Woog; the Houston Chronicle picked up her story from this post about cities in Texas with the most police shootings, which itself elaborated on this excellent article from the UK Guardian.

Let me repeat for the record that Grits couldn't be more proud of the Wooginator's work on the Texas police shootings database. Because many shootings aren't reported in the press, and some which are reported in the press aren't reported to the Attorney General, we wouldn't have a clear picture of this new data and what it means if Amanda's hadn't picked up the slack.

Going forward, police shootings promise to become an increasingly important flashpoint in local and national criminal-justice politics. The New York Times yesterday ran a story titled, "Police chiefs say scrutiny over videos has radically changed their work"  which related how, "in an age of widely disseminated video footage of fatal police shootings as well as other accusations of abusive police behavior, some chiefs say the heightened level of scrutiny has radically changed their work — making jobs more difficult, far more political and much less secure. Being fired by a mayor on live television now comes with the territory." The article included this quote from the Houston chief:

“Police chiefs definitely have a shorter shelf life post-Ferguson, and they are more scrutinized and criticized for things they weren’t held responsible for before,” said Charles McClelland, Houston’s police chief, who said he agreed with the change in focus. “Pre-Ferguson, you were held responsible only for the crime rate — now it is community relations. One egregious act of misconduct by a police officer can get a police chief fired. It wasn’t like that before.”

Closer tracking of police shootings - including some which no one outside of the involved parties knew occurred before new Lege-mandated reporting began in September - adds data to anecdote in these debates. IMO it's a meaningful and significant contribution. Great job, Amanda.

Robot parole boards, an All-American scofflaw, and other stories

Here are few items which haven't made it into individual posts but which merit Grits readers' attention:

• How overcharging and pretrial detention coerce plea deals: In Waco, a man spent 704 days in the county jail before pleading to a one-year misdemeanor sentence. Recently the Wall Street Journal published a column on "The Injustice of the Plea Bargain System," which Doug Berman excerpted here for non-subscribers. (See related Grits coverage.)
• The Houston Chronicle examined records surrounding suicides at the Harris County Jail: "In thousands of pages of autopsy reports and internal disciplinary reports, the Chronicle found 35 instances in which jailers skipped required cell checks or faked records to hide skipping them, a pattern that experts called a serious problem at county jails statewide." Further, "Screening and observation failures played a role in nine of the 28 jail suicides that occurred in the eight-county Houston metro area since the Texas Commission on Jail Standards began tracking those deaths in 2009."
• Not sure how I missed this, but a Houston PD officer was fired in October for pacing motorists' vehicles in his personal car and sending them tickets in the mail.
• A former Baylor football All-American and Dallas Cowboys draft pick was arrested in Waco with 22 active license suspensions: This is almost certainly a function of the Driver Responsibility surcharge. 
• Grits is unsure mentoring can solve indigent defense problems created by economics and the self-interest of institutional players. There's a robust mentoring program in Houston but Harris County courts are still essentially plea mills. Regardless, here's a new document from the Task Force on Indigent Defense touting mentoring programs for criminal defense lawyers who take appointed cases. I suppose it can't hurt.
• An SA Express-News story touts a new book, "Stolen Years: Stories of the Wrongfully Imprisoned."
• The Texas Observer on Border Patrol corruption: Who could have predicted that?
• Read a brief history of secret American prisons.
• Check out 60 Minutes coverage from Sunday on confidential informants and the drug war.
• Here's an important, seldom-asked question: Why punish drug users at all?
• While historically fears of robots taking people's jobs centered among the working class, lately automation has also begun to take over higher-skilled intellectual work that's repetitive and routine oriented. Which brings us to the question: Could robots replace judges or parole boards? This article ventures tentatively down the path of considering what that might look like, comparing decisions by the California parole board to outcomes from statistical models.

Three Texas counties make the list of America's deadliest for police killings

Texas has the dubious distinction of being the second-most represented state (after California) on the Guardian’s list of “America’s deadliest counties for police killings this year.” The three Texas counties that made the 14-county list of counties with 10 or more deaths are Dallas County (.5 deaths per 100,000 residents), Tarrant County (.5) and Harris County (.4).

These three counties also account for just less than half of the officer-involved shootings I’ve been tracking since the new reporting law went live in September. Since reporting began, 43 incidents have been reported, with ten of those out of Harris County, six out of Dallas County and three out of Tarrant County. As a point of comparison, I looked at the list of the most dangerous cities in Texas, which was compiled from the FBI’s 2013 Uniform Crime Reports. Houston-The Woodlands-Sugar Land (which Harris County is part of) comes in at number 3 on that list, and Dallas-Fort Worth-Arlington (which Dallas and Tarrant Counties are part of) is down at number 17.

The most dangerous city in Texas, Odessa, has not reported a single officer-involved shooting since September. But this might be because they’re not complying with the new law. When I recently compared the Guardian and Washington Post databases of people killed by the police with the reports posted on the Office of the Attorney General’s website, the one death in Texas in October that was not reported to the OAG happened in West Odessa: police there shot and killed Robert Humberto Medellin after he allegedly charged at them with a knife.

Which brings me to a point I’ve made here before: law enforcement needs to comply with the law! In the coming months, I hope to start looking at the counties and departments with the most officer-involved shootings and asking how to account for differences between jurisdictions. But those comparisons will be only as reliable as the information they’re based on.

MORE (12/8): From the Houston Chronicle, which cites to this post as its source.

Feds now seize more assets than burglars

Take a moment to let the meaning of this chart from the Washington Post (11/23) sink in:

The federal government now seizes more assets from its citizens than burglars steal every year in aggregate. And that doesn't even include seizures under state law. In most cases, the government takes the assets without the owner ever having been convicted of a crime. WaPo's underlying analysis came from this economist who calculated:

Between 1989 and 2010, U.S. attorneys seized an estimated $12.6 billion in asset forfeiture cases. The growth rate during that time averaged +19.4% annually. In 2010 alone, the value of assets seized grew by +52.8% from 2009 and was six times greater than the total for 1989. Then by 2014, that number had ballooned to roughly $4.5 billion for the year, making this 35% of the entire number of assets collected from 1989 to 2010 in a single year. According to the FBI, the total amount of goods stolen by criminals in 2014 burglary offenses suffered an estimated $3.9 billion in property losses. This means that the police are now taking more assets than the criminals.

See a related column from the Institute for Justice's Matt Miller providing a Texas perspective.

The challenge of notifying defendants in large-scale forensic-error cases

The Annie Dookhan case in Massachusetts is an even bigger mess than was the Jonathan Salvador debacle in Texas. If you don't remember Ms. Dookhan, she was the ultimate cop-in-a-lab-coat, to use Sandra Guerra Thompson's phrase. Dookhan worked on many more cases than Salvador and her malfeasance allegedly involved explicitly manufacturing evidence and falsifying documents for the purposes of framing people.

By contrast, Jonathan Salvador apparently copied results from old MDMA evidence because he wasn't technically competent to process the pills and feared his supervisors might fire him for not understanding the basic chemistry underlying his job five years in. So the instances of faked results were less widespread, less malicious in intent, and less likely to occur in cases where the true results were exculpatory.

Nonetheless, when one reads the Boston Globe saying, "It's time to clean up Annie Dookhan's drug lab mess," some of those same criticisms apply to Texas' handling of L'Affaire de Salvador. That article opened:

Imagine, for a moment, you are one of the thousands of defendants whose cases were sullied by Annie Dookhan’s drug-lab skulduggery.

Shouldn’t someone let you know?

But who? Should it be the prosecutors who made cases using evidence her actions tainted? Or, less plausibly, the overburdened defense attorneys whose clients were harmed by her?

Incredibly, more than four years after Dookhan’s crimes were first uncovered, this simple question of justice remains unresolved. Thousands of those whose lives were affected haven’t been notified of their rights, including the possibility of a new trial. Many still have no idea they are Dookhan defendants.

That's true in Texas, too. Most prosecutors did eventually send notices to either last known addresses of defendants or to defense attorneys. But defense attorneys who were appointed to take a case won't see some potential post-conviction claim as falling within their obligations. And, except for defendants still in prison, there's little certainty and much doubt regarding whether most defendants were actually notified. In fact, most folks are pretty sure that many were not.

That's important because the Texas Court of Criminal Appeals has said defendants in the Salvador case are entitled to relief if evidence in their cases had been destroyed and could not be retested. Best estimates given to the Forensic Science Commission were that that was the situation in between a quarter and half of the nearly 5,000 cases Salvador worked on in a DPS crime lab in Houston. But we've not seen remotely that many writs coming through the CCA. Grits thinks that's largely because of breakdowns in the notification process, with a secondary cause of defendants who were notified having no resources for an attorney. (In most cases, there's no right to counsel for habeas corpus writs.)

So, while prosecutors have done more in Texas than in Massachusetts, by no means does Texas have this figured out. Unlike in Massachusetts, Texas courts and prosecutors have granted that notification in these cases is necessary. But nobody has yet figured out how to perform that function effectively.

Similar issues inevitably will arise in the hair microscopy and DNA mixture reviews: How do you effectively notify defendants beyond a pro forma, sure-to-be-returned letter to the last known address? Perhaps there are big data solutions to finding folks, or other methods which haven't been tried yet. But notification never received is hardly superior to no notification at all.

See prior Grits coverage of the Jonathan Salvador case:

• Grievance: DA's failure to notify defendants in Salvador mess kept inmate wrongly incarcerated for two years
• Jonathan Salvador fallout: Two cases bookend range of options
• Should Texas create a statewide public defender for forensic writs?
• Salvaging Salvador: Part Two
• Salvaging Salvador: CCA reverses course in Salvador mess
• 'White paper' suggests systemic reforms to react to mass forensic errors
• CCA considers volte-face in DPS crime lab fiasco
• Judicial lawmaking: CCA to hold oral arguments in Salvador case without facts or questions of law
• TXCCA will overturn Salvador cases no matter what other evidence exists
• Nuther overturned case based on Jonathon Salvador crime lab fiasco
• Texas praised for response to DPS-Houston crime lab scandal, compared to Yankees
• On Defining Drylabbing: More from forensic commission meeting on DPS crime lab debacle
• 17 and counting: Texas Tribune on DPS crime lab scandal
• CCA habeas roundup: Four more free from DPS crime lab debacle, an actual innocence writ on pot possession, and death sentence overturned
• Fort Bend DA failed to notify defendants of misconduct by DPS lab worker
• The Weakest Link: TDCAA agrees nearly 5,000 cases 'may be jeopardized' by DPS lab worker misconduct
• Thousands of drug cases may be overturned because DPS lab worker allegedly faked results
• DPS crime lab SNAFU may overturn thousands of years worth of drug sentences
• Convictions overturned based on DPS lab worker misconduct, hundreds more likely to be challenged
• Bad apple at DPS crime lab could spoil barrel of convictions
• DPS analyst who faked results worked on 4,944 drug cases
• Drug analyst at DPS crime lab issued erroneous reports

Wise jail investments focus on quality, not volume

Counties which want to invest in their jails should eschew expansion and follow Bexar County's lead. From the SA Express-News last month (Nov. 22):

With the inmate population trending downward in recent years, officials have embarked on plans to consolidate and modernize facilities inside a more secure perimeter.

After more than two years of construction, the jail complex will have 400 fewer beds than now, but it will better serve women, inmates needing treatment and offenders on work-release, officials said. Jail workers will see better conditions, too, they said.

“There are a lot of moving parts on this,” Sheriff Susan Pamerleau said. The changes will ease inmates’ access to services and enhance security in and around the jail, she said.

“We are excited about what this brings to our community,” the sheriff said.

The Commissioners Court authorized the $32 million project last week. The largest expense will be a new housing tower costing $17.7 million and having 512 “program-focused” beds for mental health and medical initiatives.

The project’s first step, coming at a cost of $5.5 million, will be relocation of the Sheriff’s Office administration from its cramped quarters in the jail into an underutilized probation office across the street.

Grits can't recall the last time a Texas county jail finished a construction project with fewer beds than when it began. Perhaps that's a welcome beginning to a new trend.

Grits' Holiday Reading List

Having recently mentioned law review articles by Sasha Natapoff and Grits' own Jennifer Laurin, I realized there were essays by both which should go on my reading list, and a few others, too, which I'll compile here in case anybody else finds them useful.

For newly minted Grits contributor UT Law Prof. Jennifer Laurin, see her academic oeuvre here. Grits mentioned I've been re-reading her Gideon by the Numbers. Here are a few more of her greatest hits for those not hip to her work:

• Still Convicting the Innocent
• Prosecutorial Exceptionalism: Remedial Skepticism, and the Legacy of Connick v. Thompson
• Policing Police Technology: The False Hope of Fourth Amendment Adjudicatory Oversight
• Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight

When Santa finishes his rounds he likes
to catch up on his criminal-justice policy reading

Your correspondent has found Prof. Laurin's writing immensely helpful as I've confronted some of these same issues over the years. None of the above-listed articles IMO have gotten nearly the attention they deserve, especially the last item which offers a remarkably timely analysis as Texas' various forensic reviews begin to take root and mature.

While we're on the subject of forensics and Grits contributing writers, see this review of University of Houston Law Prof. Sandra Guerra Thompson's new book, Cops in Lab Coats, which I understand makes an excellent stocking-stuffer. See her oeuvre of academic articles, of which I also want to read this older essay on flawed eyewitness identification, suggesting a corroboration requirement.

And since we're listing law review articles I want to read, Grits can't ignore Alexandra Natapoff: See her academic oeuvre here; if you haven't read her stuff on snitching and misdemeanors, start there. For my own catch-up list, Grits wants to sit down soon with:

• Negotiating Accuracy: DNA in the Age of Plea Bargaining (previewed here)
• Misdemeanor Decriminalization
• Deregulating Guilt: The Information Culture of the Criminal System

Another academic writer Grits has relied upon over the years, Richard Leo from the University of San Francisco (see his oeuvre of academic articles), has expanded beyond the false-confession terrain where he made his bones and coauthored a couple of interesting looking articles, both out last month, which I intend to read:

• A Damning Cascade of Investigative Errors: Homicide Investigation in the USA
• The Path to Exoneration

I'm unfamiliar with Rachel Harmon's work but the abstract for her article "Why Arrest?" caught my eye. Looking at her academic oeuvre, I spotted another essay from last year, "Why Do We (Still) Lack Data on Policing?," whose abstract sounds like she's lamenting some of the shortcomings Grits contributor Amanda Woog is confronting regarding gaps in Texas police shooting data and how to measure progress toward reform.

Prof. Laurin said Erin Murphy's book, Inside the Cell: The Dark Side of Forensic DNA is "burning a hole in my desk" for wont of reading. (Here's an interview with Murphy about the book.) She also suggested I add Eve Primus' article, "Culture as a Structural Problem in Indigent Defense" to the list. So let it be written, so let it be done.

Cecelia Klingele's article, "The Promises and Perils of Evidence-Based Corrections," looks both thought provoking and a tad depressing. She "seeks to highlight the unintended ways in which evidence-based tools could be used to expand, rather than reduce, state correctional control over justice-involved individuals."

Here's an analysis from last year I hadn't seen by Alycia Welch at the UT-Austin LBJ School titled, "Harris County Sheriff's Office Management Failures: Inadequate Medical Care at the Harris County Jail."

From TDCJ, "Report to Governor and Legislative Budget Board on the Monitoring of Community Supervision Diversion Funds," Dec. 1, 2015. 

Here's the Texas Indigent Defense Coalition's fall newsletter, the Office of Court Administration's October newsletter, and the latest director's report from the Texas Judicial Council. For those who never saw it, the OCA's Dec. 2014 report on DPS and county interactions over asset forfeiture is worth a read. Nothing groundbreaking but some good, technical background.

Finally, the September OCA newsletter included links to several resources on pretrial detention and bail reform that look useful:

• 2012 - 2013 Policy Paper:Evidence-Based Pretrial Release (Conference of State Court Administrators)
• Results from the First Six Months of the Public Safety Assessment - Court in Kentucky (Laura and John Arnold Foundation)
• Money as a Criminal Justice Stakeholder: The Judge's Decision to Release or Detain a Defendant Pretrial (National Institute of Corrections)
• Measuring What Matters Outcome and Performance Measures for the Pretrial Services Field (National Institute of Corrections)

This list is mainly for my own reference, to compile links to stuff I want to read so I can check them off as I go. (For that matter, I'll probably add to it.) But since Grits readers are passionate about many of these same issues, perhaps my list will interest you, too.

For that matter, though I've finished most of it, there are a few items left on my end-of-session reading list Grits never got around to; perhaps that's true for you, too.

MORE: Sandra Guerra Thompson chimes in to pass along materials from a working session convened by the White House and DOJ on Fees Fines titled, “A Cycle of Incarceration:  Prison, Debt and Bail Practices.” See:

• Video of the White House convening (full day here; edited version here);
• Transcript of the Attorney General’s remarks;
• Report from the President’s Council of Economic Advisors on Fees, Fines, and Bail;
• A National Journal article about the event; and
• Background materials (here, here, here, here, and here).

See especially the report at the third bullet. The email containing these links concluded, "In the coming months, we will provide additional information about the tool from the OJP Diagnostic Center that will describe a policy and research agenda and include examples of significant reform efforts that were discussed at the event."

Subscribe to Grits on your phone

More than 1,800 readers already subscribe to Grits' daily email of headlines via the signup form in the right column. My service just created the ability to subscribe on your phone. Text 79553 to 781.262.3877 to get a link to a sign-up form.

Grits needs to memorize that number, it'll be useful at speaking events or just whenever folks ask how to sign up; people can pull out their phone and send a text right then.

When is falsifying records a big deal? A brief primer

Just so we're clear, because sometimes it can be confusing: Let's review when falsifying records might result in serious prison time.

Cops in Houston in a ticket rigging scam get probation for falsifying information on traffic tickets which real people had to pay. A Hill County Sheriff and his subordinates who falsified training and other records also all got probation.

But a self-styled "sovereign citizen" filing phony "liens" against a judge that no one would ever conceive he might actually have to pay: That guy gets 10 years, federal.

Because, when the public are victims and police are perpetrators, it's a small-ish, excusable offense. When the victim is an Important Person, we throw the book at them.

Grits harbors little sympathy for the sovereign citizen folk but the fake liens they file are worthless and there's no chance any court at this point would take them seriously. (Some of the documents are in fact laughably funny - I used to periodically run across them back when I performed opposition research.) These fake liens might merit some sort of criminal-justice response - or you could create a mechanism to administratively ban people who engage in malicious filings - but it's hardly worth 10 years in prison for the equivalent of leaving a bag of flaming poo on the porch and ringing the doorbell.

By contrast, Grits considers it much more serious business when public servants falsify information on traffic tickets - which are a formal accusation of criminal conduct, even if only a Class C misdemeanor - or when police training records are faked.

No one will ever make that judge pay a phony debt, but someone could be falsely accused when a cop lies on a ticket, or faked training records could allow an insufficiently trained officer out in the field. The consequences from those crimes are much greater, even if the punishment is much less.

Implementing Texas' new diligent-participation credit law

See an "implementation guide" from the Smart on Crime Coalition for a new bill, HB 1546 (Allen/Rodriguez), which "gives judges the option to streamline the process for granting diligent participation credits to individuals confined in state jails who participate in rehabilitative programs. The new law requires the judge to decide at sentencing whether the defendant is eligible to automatically earn credits for participating in these programs."

According to the criminal justice impact statement for the bill:

For offenders who received the presumptive finding, the Texas Department of Criminal Justice (TDCJ) would be required to credit up to one-fifth of the sentence against any time a state jail inmate was required to serve for diligent participation in certain programs. For offenders who did not receive the presumptive finding, TDCJ would continue to provide judicial notification of diligent participation credit eligibility and judges would maintain discretion in awarding diligent participation credit.

The House Research Organization analysis of the bill predicted that, "As a result of inmates serving less time in state jails, the state would save money. The bill could have a positive impact of $81.3 million for fiscal 2016-17."

The Smart on Crime Coalition implementation guide provided specific recommendations for judges and defense attorneys.

In particular, "Defense attorneys should ask the judge to make an affirmative finding that the sentenced individual should be presumptively entitled to earn diligent participation credits in state jail."

Meanwhile, the coalition encouraged judges "to make an affirmative finding at sentencing for all defendants so such individuals can earn credits automatically for participating in rehabilitative programs." And TDCJ must create the capacity to track those judges' rulings so offenders who earn sufficient credits can be released sooner.

Saving money by encouraging offenders to participate more diligently in work, education and treatment programs: That's a policy worthy of the moniker, "Smart on Crime." If it works, next session the idea should be expanded to offenders convicted of higher-level felonies, who would equally benefit from incentives for self-improvement while incarcerated.

Raft of misconduct in San Antonio points to bigger problems in police contract

Police accountability politics in San Antonio are becoming increasingly layered, complex, and interesting. The local police union went all in for Leticia Van de Putte's mayoral campaign, only to see her swatted by GOP voters in northern San Antonio who backed Ivy Taylor, standing up to Alinskyite bullies.

Since then, the union walked away from collective bargaining negotiations because Mayor Taylor insisted on suing to get rid of an "evergreen" clause in the last contract which extends its terms for ten years if the parties can't agree on new ones.

Meanwhile, as street protests continued in October over the 2014 death of Marquise Jones, news arose last month that another man, who was severely beaten by police in 2014 when he was mistaken for a suspect while standing in front of his wife's business, was paralyzed from his injuries:

A man beaten by three San Antonio Police officers last year is paralyzed from the chest down after complications during surgery to repair his injured spine, his family confirmed to the KENS 5 I-Team.

Roger Carlos, 43, was paralyzed during surgery November 3 at a San Antonio area hospital.

Doctors have performed multiple surgeries on Carlos's neck and upper spine to relieve pain and pressure from herniated discs, following his May 2014 beating at the hands of two SAPD SWAT officers and a drug task force officer.

Notably, in that case, "A police discipline board recommended 15-day suspensions for all three officers. Chief William McManus, who did not respond to a request for interview ... later shortened each of the suspensions to five days." Moreover, "All three officers used accrued leave time instead of serving their suspensions." So, hardly any disciplinary action at all.

Less well publicized, but no less significant, in October, courts exonerated Carlos Flores after it was revealed that a SAPD officer in 2009 beat him while handcuffed. Flores was then charged with, and ultimately pled no contest to, assault on a public servant. The police department concealed from prosecutors evidence that the officer beat the handcuffed man and his supervisors all knew about it. (BTW, the lack of coverage on this case to me is inexplicable. This story wouldn't be overlooked if Eva Ruth Moravec or Michelle Mondo were still writing for the Express-News.)

On the county side, after video was released this summer of Bexar County Sheriff's deputies apparently shooting a man with his hands up, a deputy was arrested last month for aggravated sexual assault of a child, and the accompanying story mentioned that, "The sheriff's office also said of the now 14 deputies arrested this year, only three remain employed by BCSO." I don't know what's typical, but that sounds to this writer like an awful lot of deputies arrested for one 12-month span.

Debates surrounding San Antonio's police union contract have been strangely disconnected from police accountability issues, even as these stories of questionable shootings and serious misconduct swirl in the press at both the city and county level. The city has focused on seeking economic concessions from the union, and that alone has driven them away from the bargaining table. When the parties finally go back to the bargaining table, the city should get serious about strengthening the disciplinary process laid out in the contract.

A 2011 report from the Texas Civil Rights Project detailed 41 recommendations for addressing misconduct by SAPD officers, many of which probably couldn't be implemented under the terms of the meet-and-confer agreement. 

There are two possible scenarios. If city officials win their lawsuit disputing the antidemocratic "evergreen clause," they go back to the bargaining table with the leverage needed to open up that broader discussion. If they lose, they go back with almost no leverage. (No matter who wins now, the other party is almost certain to appeal.)

The union has made it clear they will just sit tight indefinitely since their evergreen clause locks in current disciplinary rules and benefits until September 30, 2024 unless overturned by the court.

And once a new contract is signed, there's no second bite at that apple for years, no matter how many terrible incidents surface or how much money the city has to dole out in lawsuit settlements.

Notably, the national Black Lives Matter campaign has created the Campaign Zero project designed to help people demand accountability in cities which have negotiated union contracts. Here in Texas, that fight will inevitably migrate to the Texas capitol in 2017 where most of the provisions originated that protect problem officers in civil-service cities like San Antonio.

RELATED: From The Atlantic (Dec. 7), "Black Lives Matter Takes Aim at Police Union Contracts."

Texas Voices v. small towns; CLEAT v. Governor, Lawyers v. client, and other stories

Here are a few short tidbits while your correspondent's attention is focused elsewhere:

Texas Voices may litigate to overturn illegal small-town sex-offender residency restrictions
See bloggerly coverage of possible litigation by Texas Voices for Reason and Justice to repeal municipal sex offender residency restrictions in 46 small municipalities which are not legally authorized to impose them. See an announcement from Texas Voices leader Mary Sue Molnar, who's done a great job with her team building the group from scratch and giving it a credible presence at the Legislature. Legal action would kick their work up a few notches. Good for them. I'm proud of you, Mary Sue, keep up the great work!

Wrong question about lawyers refusing to help death-row client
At the American Constitution Society blog, Brandon Garrett poses the question, "Can a Lawyer Oppose His Client's Plea to Live?" In Texas, we know the answer to that question is clearly, obviously, and incontrovertibly, "Yes." The real questions are, "Does that make said lawyer an asshole?," and "Will the lawyers' peers at the state bar tolerate such behavior as acceptable?" Grits believes the answers to those questions are also "Yes," and "Yes." I'm kind of pissed at the defense bar right now. They're not very good at policing their own, Mark Bennett's on-point blog screeds notwithstanding. See the latest on the case from the Texas Tribune and coverage from The New Yorker.

CLEAT adopting Alinskyite attack tactics vs. governor
Fascinating. Our Alinskyite friends at the Combined Law Enforcement Associations of Texas (CLEAT) are mad at Governor Greg Abbott, reported the Dallas News' Brandi Grissom, because he "appointed Josh McGee, a vice president at the Houston-based Laura and John Arnold Foundation, to the State Pension Review Board this week.The review board, created by the state legislature, is charged with overseeing state and local government retirement systems. McGee has penned articles warning of financial ruin cities could face because of mismanaged pensions." CLEAT, naturally, has adopted a Chicken Little stance, pronouncing that the end of the world is nigh and the Governor has sold them out. That didn't take long!

Anthony Graves hagiography
Check out a sweet little profile of exoneree and Houston crime-lab board member Anthony Graves at Houstonia. I'd vote for him. What's he running for, again?

Well, probably not the only one
"The Real Problem With Police Video" Should police control the footage?

Apologia obscures accountability on Sandra Bland death
Read the Austin Statesman's Ken Herman on "What white people think about Sandra Bland" "Cops hands not bloodless but Sandra Bland not murdered." For the record, Grits never thought she was murdered. But I do think, as Herman finally acknowledged near the end of his column, that "Law enforcement’s mishandling of this case led directly to Bland’s death." And I wish law enforcement and their apologists spent as much time focusing on that fact as they do debunking an emotional statement to the media by Bland's family in the immediate aftermath of her passing. Sandra Bland wasn't murdered. So what? If "Law enforcement’s mishandling of this case led directly to Bland’s death," what will be done to impose accountability and ensure similar "mishandling" won't recur in the future? Why isn't that the focus of MSM opiners?

On the consequences of locking up Mom
Researchers at Sam Houston State are studying whether having an incarcerated mother contributes to criminality among adult offspring. The not-shocking answer from a longitudinal study is "yes."

MMA Growing Pains

Texas is closing in on the end of its second year of living with meaningful criminal discovery via the Michael Morton Act ("MMA").  At the close of year one, the Texas Defender Service and Texas Appleseed prepared a terrific report reviewing implementation challenges (and the absence thereof, in some quarters).   But in addition to the sorts of logistical and administrative issues that featured prominently in that report, questions about the substantive scope of revised Article 39.14 of the Texas Code of Criminal Procedure continue to percolate.  Two such issues recently caught my eye.

Over at the Texas District and County Attorney's Association user forum, prosecutors have been chewing on whether they have a duty under either Brady v. Maryland or the MMA to obtain, scour, and disclose a defendant's probation records - documents that, unlike law enforcement records, apparently are not routinely provided to prosecutors by probation agencies.  In a similar vein, the Attorney General recently issued an opinion responding to the Tarrant County DA's query as to whether Brady or the MMA requires prosecutors to review recordings of jail-inmate telephone calls that are created and stored on the servers of a private company under contract with the county. Texas Lawyer reported on the opinion request here and here.

I won't go on here about what the "right" answer is to these questions.  In brief, it seems right to me, as folks at the user forum concluded, that probation records probably need to be disclosed, at least in a proceeding to revoke or adjudicate after a deferred adjudication disposition.  As for jail calls, I find the AG's opinion fairly confusing, and confused, with respect to both the MMA and Brady doctrine. The bottom line seems to be, according to the opinion, that disclosure is required only if investigators or prosecutors actually listen to the calls, and that all calls might be deemed in the "control" of the prosecutor if their contract with the recording company gives them "unfettered" access.  Good luck to prosecutors making sense of that, and to defense attorneys who might be stuck with a lot of jail calls to review when cautious prosecutors just disclose the whole kit and kaboodle.  (My advice to DA's offices is to revisit your contracts to limit your access to the calls!)

The more interesting point for me is this.  The queries are a good reminder that even under a statutory scheme that specifies, in essence, full disclosure by the state of anything that is "material to any matter involved in the action" (39.14(a)), questions will arise about the substantive scope of the obligation.  Open file is not a "set it and forget it" regime.  (I've been learning about this in some detail as the Reporter to the ABA's task force on criminal discovery standards, where task force members from North Carolina have shared accounts of that state's continuing process of revisiting and respecifying its "open file" discovery law.)  In fact, the more sweeping the legal disclosure obligation, the more that questions arise about items on the margins.  That's because from the prosecutor's standpoint, the burden of sorting through masses of documentation for the "material" bits becomes laughably burdensome; and on the flip side, the burden to the defense of receiving huge quantities of documentation that might contain a scintilla of relevant information is equally if not more deleterious.

A corollary observation is that neither the MMA nor any other discovery regime can fully remove discretion - prosecutorial discretion in particular - from the equation.  Prosecutors are necessarily making judgment calls about where to draw the line.  That's probably inevitable: no statute can fully specify its parameters.  But one of the potential dangers of open file regimes is a kind of lulling of defense counsel into reliance on the discovery packet.  The probation and jail calls conversations are good reminders to defense counsel that affirmative queries will still be required both to acquire relevant and helpful information in the control of the state, and to tee up for judicial determination some of the judgment calls that prosecutors might be making.

Natapoff: Add plea bargaining to canonical causes of wrongful convictions

Grits looks forward to Sasha Natapoff law review articles with the sort of anticipation which in high school accompanied the release of albums by my favorite bands. Regrettably, unlike those bands, legal scholars have crappy promoters and sometimes I'm late to the show. So Grits was delighted that Doug Berman pointed out her new article, "Negotiating Accuracy: DNA in the Age of Plea Bargaining," in which she declared that, "we should recognize plea bargaining as a source of wrongful conviction in its own right, and add it to the canonical list of wrongful conviction sources such as mistaken eyewitness testimony, lying informants, and bad forensics." Yes, ma'am! Hear, hear!

Noting that, "Fourteen percent of the wrongful convictions listed in the National Registry of Exonerations are the result of a plea" bargain, she suggested the real proportion of false convictions based on pleas is much higher. After all, "it is easier to revisit a conviction where the defendant has maintained his or her innocence and there is a factual record that can be reinvestigated and legally challenged."

"Easier" is an understatement. What students at innocence clinics do with their time is review trial transcripts and evidence for problems or irregularities. No trial? No transcript, no evidence. Unless there's exculpatory DNA evidence sitting around in a lab somewhere, key witnesses recant, or someone else credibly confesses to the crime, there's no record to attack in plea-bargained cases, so there are few viable avenues for proving innocence claims.

Natapoff contends that, “the quest for DNA-like accuracy tempts us to forget that most criminal guilt is negotiated, not 'discovered.'” "In the world of trials and formal adjudication," she observed," accuracy matters a lot. In the plea bargaining universe, accuracy is negotiable and thus matters less. This latter point is on display in two bargaining arrangements that routinely lead to wrongful convictions: informants, where evidence is obtained by bargaining, and the misdemeanor assembly-line process where convictions are obtained by bargaining."

Brilliantly, she contends that, "we should understand the criminal deal itself as a primary source of wrongful conviction, precisely because it commodifies and trades away accuracy—even DNA’s—in exchange for other institutional values." Even so, "the bulk of the innocence movement’s proposed reforms are designed with the trial-oriented evidentiary model in mind." That's exactly right. (See a discussion of the limits of canonical innocence reforms in recommendations from the Innocence Project of Texas to the Timothy Cole Exoneration Review Commission, authored by your correspondent at his day job.) Plea bargaining, combined with the coercive nature of bail-based pretrial detention, contributes to "inaccurate" pleas, in Natapoff's parlance.

She grants that "plea bargaining is often inaccurate for complex, even sound reasons," often to the benefit of the defendant, and the article offers a good discussion of different brands of intentional inaccuracy in pleas. Even so, while fully acknowledging that "accuracy is not the system’s only foundational value," clearly "accuracy still matters profoundly" and "the innocence discourse is an important reminder not to let the cost-benefit instrumentalism of plea bargaining obscure the injustices of wrongful conviction."

These are just a few tasty excerpts, the whole thing is excellent, give it a read. And for those with holiday reading time on your hands, let me suggest that anyone interested in innocence, plea bargaining, or informants should take time perusing her full law-review oeuvre, which includes all sorts of excellent goodies. As far as Grits is concerned, Sasha's a rock star.

Hodgepodge of stuff that interested me

Just a few odds and ends, including several from close to home:

• Read former offender Doug Smith, who now works for the Texas Criminal Justice Coalition, writing on his personal blog about racial disparities in incarceration rates. See an interview with Doug here.
• Check out the web page for a Prisoners Family conference in Dallas next May.
• See a new report from the Vera Institute on policing and mental health and overview coverage from the Texas Tribune.
• Here's a suggestion for how to prosecute abusive prosecutors. 
• Mark Bennett's series on attorneys who phoned in clemency for a death-row client achieved appropriate levels of scorn. See here, here, and here.
• A quick roundup of some of the good work from Grits' new contributing writers: Sandra Guerra Thompson had a couple of blog posts recently at Brandon Garrett's Forensics Forum and was quoted in this story in the Atlantic about the Waco biker shootout. Eva Ruth Moravec had two items on her personal blog last month on topics which may interest Grits readers. Michele Deitch was quoted in this story in the International Business Times on private prisons and a Dallas News story on jail suicides. Rebecca Bernhardt was quoted in a Dallas Observer article, "Presumed innocent but locked up: Dallas County's bail system punishes the poor." Lastly, Grits has been re-reading Jennifer Laurin's law review article from this spring titled, "Gideon by the Numbers: The Emergence of Evidence-Based Practice in Indigent Defense." So should you.
• Finally, thanks to Grits donors, I just ordered this book which one hopes will bolster and supplement the blog's coverage of police tech. I mention it only to let donors know the sort of thing (besides subscriptions) your blog donations go for. If you care to support this blog financially, use the Paypal buttons in the righthand column.

Alinskyite police unions have too much power

Check out this CATO Institute podcast featuring the Texas Public Policy Foundation's Derek Cohen opining on "The Power of Police Unions." Police unions push for "creating privileged class" when it comes to misconduct and lawbreaking, suggested TPPF's deputy director. Speaking of myriad union-inspired protections afforded to officers during misconduct investigations, Cohen observed, "They don't want to be treated as a suspect, even if the activity is a crime."

The podcast also featured a rare public mention of the police-union playbook written by Combined Law Enforcement Associations of Texas (CLEAT) mugwump Ron DeLord, their executive director John Burpo, and several associates, "Police Union Power, Politics and Confrontation in the 21st Century," which is essentially a book-length homage to Saul Alinsky draped in the rhetoric of law enforcement. (Title of Chapter 3: "Saul Alinsky: Still the Man with the Plan.") I've always wondered how Alinskyite unionists could remain so tight with the likes of Rick Perry, Greg Abbott, and Dan Patrick, and clearly TPPF's Cohen wonders the same thing.

Listen to the whole podcast; good stuff, Derek!

See also from TPPF:

• Report recommends police reform mental health policies
• Getting criminal justice right
• How solitary confinement makes our streets less safe
• Republicans and Democrats can agree on criminal justice reform