How Houston police officers are (not) held accountable for bad shoots

The Houston Chronicle's Lise Olsen and her colleague James Pinkerton have been pulling back the curtain on Houston PD police shootings over the past year. We've known for a while that HPD officers are almost never indicted for shooting people no matter what the circumstance, even when the officers' story blatantly contradicts known facts. Now we know that Houston officers are rarely disciplined in such cases, even when grave errors lead to deaths of unarmed victims. From Olsen's 12/29 story:

Only five of 40 cases involving police shootings of unarmed individuals since 2010 have resulted in disciplinary action against officers after police chiefs found that they violated policy, a new Chronicle analysis shows. None of the officers were criminally charged, and none of the disciplinary actions were announced to the public. Because the department's internal affairs probes are cloaked in confidentiality, the analysis required cross-matching data from the city, HPD and the Harris County District Attorney's Office. 

All five officers were disciplined for policy violations that occurred when they shot people while off-duty. 

One failed to train with the weapon he used to shoot an innocent man. Another exhibited a lack of "sound judgment" by shooting a fleeing man in the back while working an unapproved security job out-of-uniform. A third had been repeatedly disciplined for working an unauthorized apartment security job when he confronted and killed a wrecker driver. The fourth was found to have been intoxicated at the time he shot two people, among other policy violations. Still, as in all other intentional shootings, these were determined to have been "justified."

Even when disciplinary actions were taken, they seemed aimed more at providing cover for the shooter than punishing misconduct. Check out this example:

Officer Christopher Slater, who fired his weapon across a busy street and hit an unarmed 29-year-old, Gerard Barnett, in the back of the leg. Federal court records in a related civil rights lawsuit show the officer gave different versions of why he shot Barnett. The officer initially claimed Barnett had pointed a weapon at him. No gun was found, and Barnett's hands bore no sign of having fired a weapon. Still, the officer insisted someone else must have picked up the gun after Barnett fell. 

After interviewing suspects and reviewing surveillance video, HPD's own investigators concluded Barnett was an innocent bystander. Video cameras and other witness statements indicate that Barnett had been filling up a car with gas at a Citgo station when shots rang out and he ran to get out of the line of fire, according to documents made public in a related federal court case. 

Slater received a written reprimand in February 2010 - but only because he had "failed to qualify" with the gun he used by not practicing often enough at the department's firing range, his personnel file shows. In 2013, the city of Houston approved a rare $90,000 settlement for the man he shot. 

Despite that settlement, the Houston Police Department has never updated its account of the April 2009 shooting that claims Barnett pointed a weapon at Slater, who was off-duty and out-of uniform at the time of the incident. 

Barnett, reached by phone, said most of the settlement money went to pay a lawyer who finally agreed to take his case. Barnett has been able to work but has never been able to afford surgery. The officer's bullet remains embedded in his thigh.

Olsen highlighted the recent testimony of an expert witness who "analyzed 670 internal affairs reviews of HPD officers who had discharged their weapons between 2006 and 2016." He testified that, "HPD investigators relied too heavily on statements given by officers who'd been coached what to say by union lawyers," she reported.

Another recent Olsen story highlighted that, even though Harris County does not prosecute police officers for bad shoots, other jurisdictions are beginning to do so. That article opened:

Prosecutors in all but one of Texas' biggest counties have launched a spate of police officer prosecutions in the shootings of unarmed or mentally ill people over the past three years that parallels a similar rise in police prosecutions nationwide. 

Harris County, which leads the state in police shootings by a wide margin, is the exception. Prosecutors have presented evidence in more than 200 officer-involved shootings to grand juries that happened here since 2012. One of every five individuals shot by police was unarmed. But in every case, the officer was not indicted, records show.

One HPD officer cited was drunk when he shot an unarmed man but that fact was never presented to the grand jury by the DA's office.

Olsen's story goes on to demonstrate how difficult it is to secure convictions in cases against police officers, which nationally succeed only about a half of the time. "Out of the 78 police officers charged with murder or manslaughter in shooting-related prosecutions tracked since 2005, only 27 officers were convicted; 29 were acquitted or had charges dismissed; 22 cases remain pending as of November," according to an academic Olsen quoted who tracks them. Considering police kill nearly 1,000 people per year nationally, those are paltry numbers.

This fact bite in part shows favoritism toward police by prosecutors, but it's also a function of the plea-mill system into which the modern criminal justice system has devolved. For the most part, prosecutors don't try cases any longer - they cut deals and dismiss the hard ones. And these are hard ones. Police union attorneys are always willing to roll the dice with a jury, hoping sympathy for the profession will trump the facts. It's a smart strategy: Often, it does. 

Great coverage of an important issue. For more reporting on shootings of unarmed people, see the Chron's Unarmed series as well as Grits contributor Eva Ruth Moravec's Point of Impact series.

Top TX criminal-justice story of 2016 easy to spot; the rest are debatable

Looking back at the grotesquery of a year which was 2016 to choose the most important Texas criminal-justice stories, it's not hard to pinpoint the #blacklivesmatter protests surrounding police shootings over the summer - and the murder of five police officers in Dallas by a lone-wolf sniper at a protest - as the most important moment from a reform perspective, not just for Texas but arguably the nation.

The Dallas shooting and a handful of other ambush killings of police, including the murder of a San Antonio police officer while parked right outside the station house, bumped up the number of police officers' on-the-job deaths slightly in 2016, both in Texas (19) and nationally (135), though in historic terms the number remained half of its 1970s peak. Police in 2016, by contrast, killed nearly 1,000 people nationwide, down slightly from 2015. In Texas, we learned from the Dallas News, the number of police shootings has grown steadily over the last few years, led by increases in Houston, San Antonio, and, of course, Fort Worth. And that was before we learned that some 200 fatal Texas police shootings over the last decade had been left out of the data. The issue of police shootings hasn't been as partisan in Texas as elsewhere, with folks like Rick Perry and Dallas-based media mogul Glen Beck offering sympathetic sentiments toward #blacklivesmatter activists. It was a fascinating year on this front and debates surrounding these topics were the hottest in criminal justice.

At the Texas Tribune, reporter Jonathan Silver offered up a top five list of Texas criminal justice stories in a 2016 retrospective, but only the two related to this summer's protests and shootings would have made my list. He included the murder of a TDCJ corrections officer, which I agree was chilling and terrible. But Grits would bet most Texans are unaware of it and I'm unaware of the incident spawning significant discussions of policy change. Meanwhile, the Texas AG so far this year has recorded 351 deaths in custody in Texas prisons alone, with more still to be reported from the end of the year. (Usually, unless family gets involved, inmate deaths receive no MSM attention at all.)

Silver thinks the much-touted drop in county jail suicides merits "top 5" status, but these small numbers vary widely from year to year and Grits thinks it's WAY too early for the state (or the media on their behalf) to claim credit for fixing that problem - certainly if the change in a bureaucratic form is the only thing to which anyone can attribute the drop. Routine fluctuation might equally explain it, just as likely, and we really can't know yet one way or the other.

Finally, Silver claimed fallout from the new open carry law merited a "top five" story, and for Grits it likely wouldn't have made a Top 25 list.

So what were the other biggest stories of the year from Grits' perspective?

Big-league bail reform push
Bail reform litigation in Harris County is challenging the fundamental constitutionality of judges using a bail schedule instead of assessing the particular situation of individual defendants. In part in response to this litigation, but also thanks to Chief Justice Nathan Hecht, the Texas Judicial Council took up the banner of bail reform and legislation is expected to be filed in the new year to expand the use of risk assessment tools and personal bonds by judges. While advocates are worried the legislation may be toothless - the fight will likely be how to make it as strong and functional as possible - support from top state leadership means something is likely to pass.

Austin DNA lab becomes poster child for forensic error
Somewhere in the top five one must find space for the closure of the Austin PD DNA lab and the admission by the state, via the Forensic Science Commission, that most labs had been misinterpreting DNA mixture evidence for many years. While other labs didn't have staff so recalcitrant that DPS found them untrainable, thus making Austin unique, many other labs were similarly misinterpreting DNA mixture results, including at DPS. Fallout from the need to recalculate results from thousands of cases - for which defendants in most of them have never even been notified of the problem or afforded counsel to assess their situation - is truly mind boggling and far reaching. Even more amazing: The same mistakes were made everywhere in the country, not just in Texas. Texas is just the first state to formally own up to the problem, but what's happening here foreshadows developments in every other state and likely internationally, since many of the best forensic scientists in other nations train here.

Kangaroo court in Waco
Though this blog hasn't covered it as closely as I should, Grits would include the ongoing travesty of justice in Waco in the aftermath of the 2015 Twin Peaks biker shootings in the five biggest stories of the year. The DA and local judiciary have conspired to trump up cases against dozens of bikers against whom they have zero inclulpatory evidence and then dragged out proceedings for more than a year without dismissing the BS cases. There's hardly a pretense anymore of justice being served, DA Abel Reyna is engaging in what amounts to petty bullying. The courts so far have backed the DA, but not yet on the challenges where he's most vulnerable, the denouement of which we may happily expect in 2017. Still, when this is finished (years from now, following the exoneration of most defendants and what will likely be successful civil litigation), Grits believes the episode will give the town an even worse black eye than the sexual assault allegations against Baylor football players, although the latter is presently a bigger deal nationally than the former.

Tattoo You: A new breed of Texas DAs
Finally, District Attorney elections in Harris and Nueces Counties must nudge their way into Grits top five because of their potential historic import. The change in Harris was part of a generalized partisan rout, with Dem judges and a new DA sweeping all the countywide offices. In Nueces, though, reformer Mark Gonzalez running as a Dem - a criminal defense lawyer with "Not Guilty" tattooed across his chest - was elevated by voters in a county that went for Donald Trump. In general, District Attorneys in Texas' largest counties these days are a lot less hard core and more likely to be sympathetic to reform than just a few years ago. This represents an opportunity for reformers, both because these new DAs themselves might do good stuff, and also because the opposition coming from prosecutors to statewide reforms may be less likely to speak with one voice.

Honorable mention for top stories:

• Democracy failing us on judges: Court of Criminal Appeals elections are a joke and one of the court's best judges, Elsa Alcala, says she'll decline to run for reelection in 2018 rather than subject herself to them again. IMO Alcala was Gov. Rick Perry's very best appointment, out of thousands. In a different time and place, this traditional-conservative Latina Republican judge married to a former Houston police officer would be on a GOP short list for the US Supreme Court. That instead she's walking away from politics in disgust says something sad about the state of both republicanism and Republicanism in Texas.
• When judges choose convenience over law: Texas is not following the constitution when it comes to vetting pro se habeas corpus pleadings, we learned from one of Judge Alcala's opinions. There has been no MSM coverage on this, and it's unclear who could provide any remedy since these are state habeas petitions, but from a systemic perspective it's a big deal.
• Looming crisis: The Dallas police pension may bankrupt the city; Houston's not far behind.
• Innocence matters: The San Antonio Four were declared actually innocent. And the underlying flawed forensics behind Harris County drug exonerations was revealed. Meanwhile, Texas Exoneration Review Commission finished up its work and issued recommendations. Two legislators - Rodney Ellis, now a Harris County Commissioner, and Ruth Jones McLendon, now retired to private life - deserve immense credit for pushing for the commission last session. Now it's up to advocates and the Lege to make them happen.
• Declining executions: The number of Texas executions plummeted this year to historic lows in 2016, in part thanks to 2015 legislation (SB 1071) requiring prosecutors to notify the defense when they seek to set executions. Most of the MSM coverage hasn't mentioned that piece, though the Texas Tribune brought it up in September, but it's definitely been a factor.

Why not to recruit Stormtroopers to your police department: Cowtown edition

Fort Worth PD yesterday released another Stormtrooper Recruitment video a video of an officer shooting an unarmed man in the back seconds after he left his patrol car from an incident earlier this year. See coverage from the Startlegram and the Washington Post. This arrives in the wake of viral video showing another Fort Worth officer arresting a mother and child in a dispute about which a Dallas News columnist declared, "It's hard to imagine anyone mishandling a call any worse than this officer." Meanwhile, the local police union president made himself the poster child for the proposed new enhancement for assaulting a police officer after he attacked a CLEAT boardmember in South Padre and fled the scene in September.

Make us proud, Cowtown. Make us proud.

Indigent Defense Resource Roundup

Here are links to some excellent resources found in the Texas Indigent Defense Commission winter newsletter that Grits wanted to preserve for my own purposes:

• See a press release and Texas Judicial Council resolution supporting recommendations from the Timothy Cole Exoneration Review Commission.
• See a four-page primer on the Texas Fair Defense Act created for Texas legislators and staff.
• See the Judicial Council's recommendations regarding legislation governing pretrial decision making practices.
• From the Criminal Justice Policy Program at Harvard Law School, "Moving Beyond Money: A Primer on Bail Reform"
• Here's a toolkit for public defenders from the National Legal Aid and Defender Association on how and why to increase defenders' analytical capacity, .
• See meeting materials from a Mental Health Roundtable hosted by TIDC in November.
• TIDC has added a Juvenile Addendum and an Appellate Addendum to its criminal defense lawyer caseload data.  See also a power-point presentation from TIDC on Texas' "smart defense data portal."
• From the Bureau of Justice Statistics: State­ Administered Indigent Defense Systems, 2013 report and summary document.

State should pick up more local indigent defense costs, but not all of it

The Texas Judicial Council issued a resolution supporting 100% state funding for indigent defense, which at present is mostly paid for by counties. Along that same vector, the Texas Indigent Defense Commission's Legislative Appropriations Request asked the state to pay for half the total indigent-defense cost in the next budget, up from 12 percent in the last one, rising to cover the full cost in six years. Grits supports additional funding for indigent defense from the state, but I disagree with my friend Jim Bethke, executive director of the TIDC, that the state should take over all of it.

There are lots of reasons it's beneficial for counties to still have skin in the game. The state pays for 100% of prison costs, for example, so local prosecutors seek the longest possible sentences knowing the expense won't come from the county budget. Mass incarceration is driven by local decision making. And economics provides a practical check on government behavior which carries more weight than moral and ethical arguments can typically muster.

Besides, having the state pick up the tab for indigent defense isn't real tax relief. The overall burden would be the same on the taxpaying public, they're just shifting burdens from property taxes to sales taxes. That's a smoke and mirrors move. In the end, you can't reduce government costs without reducing the size of government. 

The best way to reduce county indigent defense costs is to reduce penalties on common, victimless crimes so the government won't have to hire a lawyer. Reduce low-level pot possession from a Class B to a Class C misdemeanor, for example, and that's 70,000+ fewer cases where, if the defendant turns out to be indigent, they're eligible for county-paid representation. You'd pick up thousands more by reducing all driving-with-suspended-license cases to a Class C. And reducing penalties for low-level possession of harder addictive drugs from a State Jail Felony to a Class A misdemeanor would also dramatically lessen indigent defense costs, as well as shifting some of the system's volume to presently under-utilized county courts.

You can't reduce the cost of government and simultaneously insist that it perform every function that it did when you spent more money. So it's better for the Lege to make thoughtful choices about which criminal offenses merit counties paying for indigent defense instead of reflexively picking up the tab for local decisions. That's how we got a $7 billion prison budget (after a $458 million bump in 2015).

So, Grits supports the state picking up more of the tab - a 50/50 split could seem reasonable to me - but for now I remain unconvinced about full state funding. Do that and locals would allow costs to rise unfettered, with no practical checks on local actors regarding accountability for their own decisions or resulting systemic costs.

All that said, the Lege enters the session facing a multi-billion dollar shortfall, so this discussion could become moot. There are a ton of competing priorities. And I support the levels of state funding TIDC is seeking in the next budget, even if Grits wouldn't go any farther. So, if asked, I agree with TIDC's appropriations request for the coming biennium. But after answering, Grits would add, sotto voce, "for now."

Rudeness or racism? And we should care, why?

The Fort Worth Police chief said he was "disturbed" by viral video showing his officer provoking a confrontation with a woman who called 911 then arresting her when she reacted. But, said the chief, “There’s a difference between rude and racism.” Grits agrees. But there are also similarities between rudeness and racism. For example, if dash-or-bodycam footage showed the same officer isn't routinely "rude" to white folks, that could be revealing. OTOH, if the guy is just rude to people generally and is not guilty of racism, why do you want him representing your department? In fact, why is he on the force in the first place and why didn't his bosses catch it before if that's just generally how he treats people? Which leads to the question, in their routine, day-to-day functions, do Fort Worth PD supervisors discourage these behaviors, or do they or teach them? After all, they're recruiting Stormtroopers, right? (See Grits' earlier commentary.)

The practice of police verbally provoking victims, drivers, etc., lies at the root of a lot of these confrontations and the fact of the matter is, officers are trained to do it. I'm sure that will be the police union's defense if and when the department tries to fire the guy. And there's more than a grain of truth to it. Police officers don't behave that way because they're all racist jerks. They do so because of the training they receive, the culture they work in, and the values and priorities of management, which are expressed through the actions of their employees more than through public statements. The Fort Worth chief is right that the problem may not be racism. But that's a much bigger concern than if this were just a one-off where a single racist slipped through the cracks and made it onto the force.

MORE: From James Ragland at the Dallas News.

Bill to limit Class C arrests target of red-herring arguments

With momentum building in support of Texas legislation to eliminate arrests for non-jailable offenses, Grits should respond to a red herring argument being trotted out in reaction to Sen. Konni Burton's SB 271 and Rep. James White's HB 567: That Timothy McVeigh, bomber of the Oklahoma City federal building in the '90s, was arrested at a traffic stop and might not have been captured if the incident were governed by the proposed statutes. This is such horse-hockey, Grits at first didn't consider the point worth countering. But a couple of folks have brought it up now and apparently it's a principle argument opponents are trotting around in response to the bill, so let's get the obvious rebuttal out there.

As anyone would discover through the most cursory examination, Timothy McVeigh was arrested not for a non-jailable traffic violation (although that's why he was pulled over), but because he informed the state trooper who stopped him that he was in possession of an illegal firearm. That's what triggered his arrest. 

Under Texas' proposed legislation, police can still arrest individuals who are in possession of illegal weapons or who are committing other crimes if they fall into higher offense categories. So, because McVeigh wasn't arrested for a non-jailable traffic offense, his example just isn't applicable. Police at traffic stops always have the opportunity to watch out for more serious crimes, as happened during McVeigh's arrest. The Texas legislation merely protects drivers from arrest when the traffic offense (or other Class C misdemeanor) is the only alleged criminal act, as happened when a Texas state trooper decided to arrest Sandra Bland.

If that phony argument is the best opponents have got, this bill's chances are looking pretty good. Go here to tell your state legislators to sign onto these bills as supporters and help pass them during the 85th Texas Legislature.

Dallas County embracing risk assessments for bail, beefing up mental-health response teams

Dallas County is implementing a couple of significant criminal justice reforms, as described in this Morning News article. 

On the mental health front, Dallas Fire and Rescue received a $7 million grant from the Meadows Foundation to "launch Rapid Integrated Group Healthcare Teams, or RIGHT care teams, made up of specially trained police officers, paramedics and a mental health clinician. They will respond to crises and seek to de-escalate situations and determine the most appropriate course of action." Grits believes that armed police officers should serve primarily subordinate backup roles in these situations. The person trying to communicate with a mentally ill person they just met needn't complicate matters by carrying a gun.

Perhaps even bigger news: Dallas will begin using risk assessment to decide who gets released from jail: "Once at jail, anyone who is arrested will be screened for mental illness. The jail will send those results to judges to consider when setting bond. The county will also start using a risk assessment tool to arrive at an estimated level of danger and flight risk posed by each defendant."

According to the News, "Defendants' potential release from jail will hinge on mental health and public safety considerations, not just the criminal charges they face and a financial ability to pay bond." Further, "The county is doubling its pretrial staff from five to 10 in January to handle the expected increase in pretrial defendants they need to supervise in the community." Investing in pretrial service staff shows the county is serious. The open question: Will judges use pretrial services staff and abide by their recommendations?

Such changes should add to momentum for state-level bail reform when the 85th Texas Lege meets in January. Members from counties which have already shifted to a risk-assessment model should be less resistant to proposals that they do so from the Texas Judicial Council, which seems to be the direction they're heading.

Who at Fort Worth PD wore Stormtrooper look better?

Fort Worth PD was the subject of two viral videos this month: One where an officer arrested a distraught woman and her daughter after she'd called 911, and another produced by the department for recruiting purposes featuring a Darth-Vader-backed Stortrooper training to become a FWPD officer.

Who wore the Stormtrooper look better?

One notes that, if State Sen. Konni Burton's SB 271 banning arrests for nonjailable offenses had been in effect, these women couldn't have been arrested.

Sugar Land, convict leasing, and the future of TX prison closures

At Texas Monthly, Michael Hardy has the story of a campaign by a former TDCJ prison guard named Reginald Moore to get the city of Sugar Land to acknowledge the history of slavery, convict leasing, and plantation culture on which the area's economy was founded. There's a bunch of good stuff here. For example, the Jester Unit(s) sit:

on land that was part of the 97,400-acre tract granted by the Mexican government to Stephen F. Austin in 1823 for his services as impresario. Like most of the Anglo settlers he brought to what was then northern Mexico, Austin was a Southerner, and he saw Texas as fertile ground for creating the kind of cotton plantations that were flourishing across the South. In his recent book Seeds of Empire, University of North Texas historian Andrew Torget writes that “the rapid movement of U.S. expatriates into northern Mexico was—more than anything—a continuation of the endless search by Americans during those years for the best cotton lands along North America’s rich Gulf Coast.” Integral to cotton farming was slavery, which Austin encouraged by granting settlers 80 acres of extra land for each slave they brought with them.

This is important, little-discussed history about the political economy of the Texas prison system in the 19th and 20th centuries (for more, Robert Perkinson did a decent job with it in Texas Tough). Again, from Hardy:

Then came the Civil War. The South’s defeat and the abolition of slavery plunged the Texas economy into a depression. Deprived of their labor force, most of the sugar plantations on the Lower Brazos went bankrupt. One of the few that survived was the Williams plantation, which was purchased after the war by Edward H. Cunningham and Littleberry A. Ellis, business partners and Confederate veterans. 

Cunningham and Ellis survived the abolition of slavery by finding a new source of cheap labor: the Texas prison system. Although they weren’t the first growers to use convict labor, they were the biggest: in 1878 they signed a contract with the state to lease Texas’s entire prison population. This was perfectly legal, since the Thirteenth Amendment, which outlawed slavery, made one very consequential exception: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” (Italics added.) 

In the years before the Civil War, Texas’s state prisons had held around two hundred inmates, all kept at a single facility, in Huntsville. After abolition, the prison population exploded, disproportionately with black men. Unable to house and feed all the new prisoners, the state began renting them out to private companies, who were grateful for the supply of cheap labor. ...

The working conditions in Cunningham and Ellis’s sugar fields were as bad or worse than they had been on the slave plantations. Mosquito-borne epidemics, frequent beatings, and a lack of medical care resulted in a 3 percent annual mortality rate. The plantation soon became notorious across the state as the “Hellhole on the Brazos.” ...

Between 1906 and 1908 the plantation and its sugar-processing operations were bought up by Isaac H. Kempner, of Galveston, and William T. Eldridge, of Eagle Lake, who formally incorporated as the Imperial Sugar Company. Although Eldridge had used convict labor on another farm, Kempner was opposed to the practice and began planning to transition to free labor. To attract a new labor force, the two men established a company town, Sugar Land, with worker housing, stores, and a modern hospital. 

Texas’s experiment with convict leasing was coming to an end anyway. In 1910, following a series of newspaper investigations of the Texas prison system, the Legislature formally ended the practice; by 1914 all prisoners were back under the exclusive control of the state. From then on, the only entity that would benefit from the coerced labor of prisoners would be the Texas Department of Corrections. 

To be fair, this history hasn't been entirely forgotten, even if Hardy's protagonist finds himself fighting a lonely battle in Sugar Land, where city officials are clearly in denial, promoting some weird, Chamber of Commerce line that pretends that Texas history began post-Jim Crow. Indeed, that history was one of the reasons reformers targeted the Central Unit as the first one for closure. As Grits wrote when the facility shuttered:

For my part, the Central Unit's economic role in the prison system's ag business was one of the reasons I favored it as a prime target for closure. Not only was Central's historic role symbolic, breaking it up would end some of the last remaining physical vestiges of the old convict leasing system, replaced to a lesser and far-less brutal extent in the modern era by in-house agricultural operations on the agency's vast real estate holdings.

Similarly, Grits has argued that the Jester Unit and several others clustered together near Richmond, in Fort Bend County, should be the next state facilities targeted for closure. They're surrounded by million-dollar homes, suburban schools, and not one but two country clubs. So the historic and systemic concerns raised in this article combine with NIMBYism and the irresistible logic of property values to make those facilities prime targets for closure if TDCJ's population continues to decline. 

After a $458 million budget hike last session, TDCJ has been ordered to cut $264 million from its budget for the 2018-19 biennium. That will require reducing incarceration levels and closing facilities. Recent history shows that cuts to core services like prisoner food and healthcare have limited real-world value. We've cut those costs to the bone, and then some. If the Lege wants prisons to cost less, they must choose to operate fewer of them, and change the law to incarcerate fewer people.

Grits isn't sure the groundwork has been sufficiently laid to close these Fort Bend facilities yet: They could become more vulnerable in 2019 and 2021 if inmate populations continue to decline. And in the near term, the state would save more money in the next budget cycle by declining to renew several private prison contracts which expire in August 2017. But over the next five years or so, the fate of those units around Richmond will likely come into play, and this history will inevitably become part of that dialogue. Perhaps then, these forgotten stories Mr. Moore is unearthing will end up playing a more prominent role in debates over the area's future than the blindered town fathers in Sugar Land can presently contemplate.

Just Liberty: Tell Texas Lege to reform civil asset forfeiture

Grits readers are an informed lot, so I'll keep this short and sweet. If you live in Texas and support requiring a criminal conviction for the government to seize people's personal property via civil asset forfeiture, go to the Just Liberty site and take action, asking your state rep and senator to change the law. Now is the time to put the topic on their radar screen, as members are prioritizing issues headed into the 85th Texas legislative session which begins in January.

Currently, while the government can't secure a criminal conviction without proving their case beyond a reasonable doubt, they can accuse your stuff of criminality based on a lesser standard - "preponderance of the evidence" - and take it from you, anyway. This proposal would still let government do forfeitures, but only after they've proven that the property owner committed a crime. If you agree, Grits would appreciate it if you'd go here and register your opinion. Thanks folks.

For more arguments supporting asset forfeiture reform, see Right on Crime's new paper, "Rebutting Common Myths of Civil Asset Forfeiture."

Texas overdose numbers high enough for concern

Note to Texas journalists: Stop saying Texas has "fewer" overdoses than other states. It's not true. Texas has a lower RATE of overdoses than many other states, but because we're so populous, that still adds up to a lot of folks: 1,287 in 2015 alone - about the same as the number of murders that year (1,316), so no small thing. Texas ranked 8th nationally among states in total overdose deaths.

Texas' leaders have chosen to bury their heads in the sand over opiod overdoses, adopting hard-nosed policy stances which have cost lives. Understating Texas' overdose problem improperly lets them off the hook.

Harris DA office firings may set stage for more stable future

There's been much weeping and gnashing of teeth over Harris County DA-elect Kim Ogg's decision not to renew contracts for 37 prosecutors at the District Attorney's office. Reported the Houston Chronicle, "Like any good team that has suffered some under-performing seasons," she declared, "we're changing management. My administration is heading in a new direction."

Murray Newman - a former prosecutor fired by former DA Pat Lykos who, like many of those terminated this week, suffers from a wistful nostalgia for the Johnny Holmes era - opined that, "Yes, it is absolutely true that this happens with every Administration, but the numbers are usually relatively small.  I believe that my firing class was right around 10 people."

He's right about that, but here's what he's not saying: Lykos made a big mistake by not firing more people and Ogg is probably wise not to replicate her error.

Murray got fired, justifiably, because he lambasted his new boss publicly on his blog several times per week in commentary which, for an employee, amounted to insubordination. (Indeed, union organizers generally are more discreet in their anti-management attacks.) But otherwise, Lykos mostly replaced folks only at the very top of the DA food chain, leaving senior supervisory staff largely in place. Problem was, those folks felt the same way as Murray, they were just politically astute enough not to say so in public. And they proceeded to undermine Lykos from within at every turn, nearly from the moment she took office, then later agitated early and often for Mike Anderson, who ultimately ousted her in the Republican primary.

So, we've seen this movie and there's no reason for Kim Ogg to prefer a rerun of that trainwreck to a fresh new feature of her own making. In Austin, DA-elect Margaret Moore ousted 27 prosecutors in a much smaller office, but somehow nobody in the capital believes the world may come to an end as a result. To read Anderson's commentary in the Chron story, you'd think these 37 souls were the only thing preventing Houston from descending into chaos reminiscent of a scene from a Mad Max movie, and that no other lawyers in America's fourth largest city could possibly replace them. But here's a news flash from the Trumpian era: Winners pick their teams, and nobody's irreplaceable.

So, I'm sorry for folks who lost their jobs at Christmas, although I haven't heard any moaning for Obama-Administration officials' employment ending. Voters turned Devon Anderson out of office fair and square and her opinions about which of her friends deserve jobs at the DA office no longer carry weight. For the next four years, Kim Ogg gets to appoint people loyal to her. Nothing requires her to stick with her predecessor's team, and recent Harris County history shows that refusing to do so was probably a smart move.

DPS: 2/3 of Austin DNA lab analysts so bad they can't be retrained

The latest reports from the Austin PD DNA lab almost stun the senses, revealing that 2/3 of DNA analysts employed there were allegedly so incompetent that the DPS crime lab folk don't think they're retrainable. Reported the Austin Statesman:

Immediately after the Austin Police Department shuttered parts of its troubled crime lab, police officials asked experts from the Texas Department of Public Safety to help retrain APD staffers with a goal of possibly getting the lab up and running again. 

But Monday, DPS officials told the department they had lost faith in most of the staffers they were working with — and wouldn’t be returning. 

Instead, according to a one-page letter obtained by the American-Statesman and KVUE-TV, only a select two from a staff of six DNA analysts are invited to a state facility to continue training in a “supportive environment.” 

“I know they feel there have been some challenges, and they aren’t confident in the work of some of our analysts that we have had in retraining,” interim Police Chief Brian Manley said. “Since they have been doing this for us, we want to respect their decision and respect their request.” 

Manley said Monday was the first time he had personally been notified of the gravity of the situation. 

“They have been in contact with some of our supervisors, but to be made aware of this level of concern, where they don’t want to move forward with four of our scientists, that is a new development,” he said.

Art Acevedo left town at an opportune time, one notices in passing. But it's worth mentioning that this failure in part stems from the now-Houston PD chief's relative inattention to and de-prioritization of most of his department's duties besides patrol, which he perennially proposed expanding to the detriment of all other aspects of the department's duties. In Houston, because of past scandals, the crime lab has already been taken away from the police department's purview, so at his new gig Chief Acevedo thankfully will be relieved of that responsibility. But the team he left behind in Austin must immediately shift its focus to all the non-patrol duties which have been neglected for so many years. That of necessity starts with the crime lab, and particularly the DNA division, but if it ends there, more such land mines will explode in the future. All the department's civilian support functions - from crime-scene techs to victim-support specialists - have for years been relegated to the back of the budget line.

In the meantime, the Austin City Council should seriously consider spinning off its crime lab the way Houston did, in compliance with recommendations from the National Academies of Sciences dating back to 2009 that crime labs should be independent and not controlled by police. That's in part because analysts can become agents of the police instead of independent scientific arbiters when they're embedded in a police department's organizational culture. But it's also because police departments seldom prioritize crime labs, not just in terms of management attention but also budgeting, leaving them under-resourced and often devoid of high-level scientific expertise. That's a big part of what happened at APD's DNA lab.

Grits should add, when I say "independent," that does NOT mean hand it off to the Travis County medical examiner, which has its own long history of tolerating questionable forensics and a too-cozy relationship with law enforcement that influences scientific judgments. Houston's crime lab with an independent board is the model to replicate.

Finally, the Austin DNA lab imbroglio arguably represents the nadir of Forensic Science Commission effectiveness, though this year they've worked doubletime playing catchup. Grits has praised the FSC when they do good work, but a bunch of these issues were raised in 2010 by Cecily Hamilton about the Austin lab and the FSC investigation gave them a pass. Recent events corroborate Hamilton's charges and seriously call into question whether the FSC adequately investigated them. 

The issues Austin faces surrounding DNA mixtures are similarly being confronted at crime labs around the state. But Grits surely hopes the level of incompetence apparently at play in the Austin lab is mostly exceeded elsewhere. DNA is used in SO many cases these days - with half or more cases involving the more complicated mixture analysis that's been called into question in the last 18 months - that the legal task of undoing the damage nearly boggles the mind. 

Now consider this: The 2009 NAS report considered DNA evidence the gold standard of forensics and focused more on the non-scientific nature of nearly all other types of forensic evidence, from fingerprint analysis to hair-and-fiber to ballistics to bite marks. DNA mixture evidence may be a mess, but so are many other types forensic evidence used every day in Texas and American courts.  You can put a person in a lab coat but that doesn't make what comes out of their mouth science.

The nation since the election been grappling with the rise of "fake news." But fake science, pseudoscience, whatever you want  to call it, has been embedded in American courts for decades, harming more people, certainly, than any climate-change denier has to date. 

It makes you wonder: How in heaven's name can this much error with such grave consequences have been tolerated and justified by the justice system for so long? We need forensic analysis and Grits continues to think some forensic disciplines are useful. But being useful doesn't make them science, which is a pretension designed to exaggerate the credibility of analysts and overstate the certainty with which jurors and other stakeholders interpret state testimony about physical evidence.

MORE: The Statesman reports that Austin is no longer even trying to reopen its DNA lab.

Reduction in jail suicides welcome, but not yet a 'trend'

The MSM should be careful labeling the 2016 reduction in Texas jail suicides a "trend," as this Dallas News editorial did. One year's data does not a "trend" make. I realize that, in 21st century internet culture, everyone wants answers now. But when it comes to criminal-justice data, there's still a lag before enough data exists over a long enough period to distinguish "trends" from noise.

Private prison seeks TX expansion despite lack of demand

Corrections Corporation of America, recently renamed CoreCivic, wants to take over the former Al Price juvie unit in Beaumont and convert it into a "secure" facility aimed at reducing reentry and lowering recidivism among drug-addicted adults. They envision a "behind the fence facility, where inmates would receive treatment for substance abuse addictions."

Of course, a cynic might note that there's no such new facility in TDCJ's budget request, which is focused more on where to make cuts mandated by legislative leadership. So the private prison company is banking on having enough political clout to inject the idea into the state legislative process, even though none of the state actors involved are asking for the unit.

Local officials in Beaumont are being sold a bill of goods and should invest no taxpayer funds in incentives to support the venture. In a budget-starved session like the one we're about to enter, believing the Lege will pony up for new a secure facility no one asked for amounts to buying a pig in a poke.

South Texas ISF closing

Mothballing of a small TDCJ facility in downtown Houston has begun, reported the Houston Business Journal. With a few small tweaks - most prominently reducing penalties for low-level drug possession from a felony to a Class A misdemeanor - Texas could free up enough space to close several additional units after the upcoming legislative session. Just closing this one, small unit will not be enough to meet the 4% budget reduction mandated for the agency earlier this year by legislative leadership.

License suspensions for drug convictions a problem in Texas, but not as big as the Driver Responsibility surcharge

Texas law suspended drivers licenses for some 13,000 drug convictions in 2015, found the Prison Policy Initiative, down from more than 16,000 in 2010. The group suggested that Texas is among the states which "should repeal their laws that automatically suspend licenses for drug offenses that are unrelated to driving and retroactively restore suspended driver’s licenses."

Grits heartily agrees. But the much bigger source of the justice system revoking people's driver's licenses in Texas is the Driver Responsibility Surcharge, which has costs millions of Texans their licenses, 1.4 million of whom have not been able to regain them. That's almost entirely because of simple economics: They can't afford the civil surcharges on top of the criminal penalties involved with traffic tickets, and eventually succumb to the bureaucracy.

Most of these folks don't stop driving, of course, they just drive without a license. Then the next time they're stopped, the cops just rinse and repeat. It's not keeping us safe, but it's keeping a lot of government employees occupied and generating a great deal of revenue that the Lege can pretend is not "taxation." By comparison, the few thousand people whose DLs were revoked for drugs are a drop in the bucket. Texas' problems stemming from revoking licenses in the justice system are more far reaching and deeply rooted than that.

Case study: Why to question (another) enhancement for assaulting police officers

Governor Greg Abbott has responded to recent ambush killings of police with a suggestion to make murder of a police officer a "hate crime" and to "increase criminal penalties for any crime in which the victim is a law enforcement officer."

Though Grits has long opposed most enhancements, considering the one-way ratchet applied to criminal penalties to have surpassed any real need for additional punitiveness in Texas by around the turn of the century, in the scheme of things, I don't mind the symbolic gesture of creating another "hate crime." It's already a capital offense to murder a police officer, so the difference is purely semantic.

However, the penalty for assaulting a peace officer is already significantly enhanced, with murders of police securing a death sentence or life without parole and lesser assaults bumped upward by one offense category. So we should already be witnessing any possible benefit from enhanced criminal penalties on reducing the number of murders of police officers. If that strategy worked, we wouldn't be having this discussion!

The problem is, criminals don't carry around pocket copies of the Penal Code to read in their spare time at the bus stop. Killing a police officer and standing trial for it is a one-time life event during which offenders typically only contemplate potential consequences after the fact. Nobody is weighing penalty thresholds in their mind's eye at the moment they assault a cop. Or if they are, they have resigned themselves already that they will die if the officer does.

OTOH, there may be good reasons why one wouldn't want to boost the penalty by two categories (instead of one) just because the victim is a police officer. For example, in September, Sgt. Rick Van Houten, a police union president out of Fort Worth, allegedly assaulted another officer at a CLEAT convention on Padre Island then fled the hotel before local police came. His department investigated the incident and decided it was worth only a three-day suspension. Does anyone think the situation really merited prosecution as a felony if his department would let him back on the job so quickly? Van Houten was even allowed to participate in meet-and-confer negotiations while on restricted duty because of the incident.

Many people accused of assaulting a police officer, just like Sgt. Van Houten, claim they were defending themselves against unwarranted aggression. And there's little doubt that those claims are sometimes true. The difference is, because Van Houten himself wears a badge, he's more likely to be believed in the absence of video evidence.

Yes, cops receive lenient treatment compared to civilians when they hurt other people or break the law. But perhaps the best way to achieve justice is neither to punish cops more harshly nor to mandate felony incarceration for relatively minor altercations like this one. Instead, perhaps average citizens should be afforded the same protections and benefit of the doubt they'd receive if they were a member of a protected class like politicians or police officers. The punishment afforded the union boss is closer to "justice" in this situation than if the law demanded he be prosecuted for felony assault.

When considering whether to change the law, legislators should assess how Sgt. Rick Van Houten should be treated, not some hypothetical scary black guy conjured up for purposes of pushing a cause. If Sgt. Van Houten deserved a felony rap, fine. But if not, don't mandate that outcome for people who commit the same offense but don't wear a badge.

Priorities, choices, and poor drug-war outcomes

What a world we live in.

Asset forfeiture by the government now takes more money from people than burglars and the number of heroin deaths has surpassed gun homicides.

Can't blame Donald Trump for that, huh?

OTOH, one recalls that Gov. Greg Abbott last session vetoed "Good Samaritan" legislation which would have prevented prosecution of people who called 911 during an overdose, stayed with the victim, and cooperated with police. That would have helped prevent overdose deaths. When the bill comes back this time in the 85th Texas Legislature, they should pass it again and Greg Abbott should sign it.

In a related, poor state policy decision which likely resulted in more heroin deaths, the Texas Department of State Health Services recently failed to solicit a federal grant to pay for first responders to have access to Naloxone, an opiod antagonist with no significant side effects which can keep overdose victims from dying.

Similarly, the Lege has an opportunity this session to rein in asset forfeitures by law enforcement which are unrelated to a criminal conviction. The Texas Public Policy Foundation this week published a myth-busting document explaining why they can and should do so.

These sorts of statistics aren't just things that happen in the world, they're a result of government priorities and policy choices. If we want different outcomes, government must change both.