Willett decries Catch-22 on qualified immunity for police

Newly appointed federal 5th Circuit Court of Appeals Judge Don Willett last week issued a "concurrence dubitante" (meaning he concurred despite skepticism over the legal proposition at hand) concerning qualified immunity for police officers who violate people's constitutional rights, in this case due to an unconstitutional search. (Check out the case here, his concurrence begins on p. 21; see also coverage from Reason.)

Opined Willett: "To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior."

And he sums up a Catch-22 regarding police litigation that's bothered me for years:

many courts grant immunity without first determining whether the challenged behavior violates the Constitution. They avoid scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent. Forgoing a knotty constitutional inquiry makes for easier sledding. 

However, the judge argued, this failure to analyze the constitutionality of police behavior has (unintended?) consequences:

Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose. 

Willett concluded:

Count me with Chief Justice Marshall: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” The current “yes harm, no foul” imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed. It is indeed curious how qualified immunity excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.

That's an excellent, brief summary of one of the biggest problems with qualified immunity. For more, one of the judge's footnotes included references to several items that readers interested in more detail on the topic may want to review:

• Notre Dame Law Review issue (2018) focused on the future of qualified immunity
• William Baude: Is Qualified Immunity Unlawful?
• Joanna Schwartz: How Qualified Immunity Fails
• John Jeffries Jr.: What's Wrong With Qualified Immunity?

Texas #debtorsprison legislation overachieving, even boosted revenue

Texas "debtors prison" legislation last year drew plenty of critics among municipal judges and county officials focused on revenue maximization. Now we know that those criticisms were misplaced and the new law is working even better than anticipated.

At the House Criminal Jurisprudence Committee on Thursday, Office of Court Administration Director David Slayton testified for the first time on the results of "debtors prison" legislation passed by the Texas Legislature in 2017. (You can watch his testimony on the bill here beginning at the 1:29:20 mark.)

When the bill was in play last year, county officials and municipal court judges predicted massive drops in revenue, prompting Rep. Andrew Murr to attach an extra fee counties can charge to indigent defendants sentenced to community service, aiming to offset presumed revenue drops.

As it turned out, that was unnecessary. At the Criminal Jurisprudence Committee meeting Thursday, Slayton told the committee the bill had significantly overachieved, including in ways that directly contradict the predictions of revenue-focused critics:

• The number of warrants for failure to appear is declining.
• The number of warrants for failure to pay is also declining.
• The number of cases resolved through jail credit is declining.
• The number of cases resolved through community service is increasing.
• The number of defendants getting on payment plans has increased.
• Collections per case have increased: By 6.7 percent at the local level and 7.3 percent at the state level.

To me, that's a remarkable result! The bill is achieving all of its goals and then some. Meanwhile, every sky-is-falling prediction by critics turned out to be wrong. (MORE [9/10]: Here's a link to the handout with the graphs being described above. See a summary of new provisions affecting collection of fines and fees and another specifically summarizing changes affecting jailable offenses.)

Regular readers may recall that the House sponsor of the legislation, Rep. Terry Canales, attributed the bill to a series of blog posts published on this humble opusculum, so I'm particularly glad to learn it's working out well.

Slayton also mentioned that the Texas Public Policy Foundation and the Brennan Center are doing a joint report on the costs to collect Class C misdemeanor debt that he expects will come out before the 86th legislative session. Grits can't wait!

#txlege committees should post witness materials, testimony online

Some Texas legislative committees, like House County Affairs, helpfully post on the committee website the handouts and written testimony given to members at committee hearings.

Others, like the House Criminal Jurisprudence and Corrections Committees, do not.

All of them should, whether it's individual committee chairs choosing to post that material or implemented across the board when each chamber's rules are adopted in January.

Posting handouts and written testimony online, particularly the data-driven presentations frequently offered by agency staff, would make it easier for the public watching the hearings outside of Austin to follow along. It would also improve press coverage of legislative debates.

In general, reporters or members of the public can always, ultimately get access to these presentations, either by appealing to a sympathetic member, calling individuals who testified to ask for their materials, or filing open records requests in the case of agency testimony. But many more people would/could access the information, and with a lot less hassle, if it were posted online automatically.

This move would help everyone, from the wonkiest number cruncher looking for data discussed at the hearing to the average citizen in Abilene or Amarillo watching the hearings from afar and trying to understand what's going on. It would even benefit legislative and agency staff to put all that stuff where they can access it electronically.

Grits would like to see the practice become the rule, not the exception.

***

Still waiting on TDCJ statistical report
Speaking of not posting data online, the FY 2017 TDCJ Statistical report, discussed here, STILL has not been posted online. The last annual dataset released by the agency was for year ending Aug. 31, 2016, so that information is now more than two years old. WTF?

This is all data that TDCJ tracks in minute detail and includes in various, internal reports which are updated monthly. There is no good reason to believe annual reports couldn't be produced by the end of the CALENDAR year in which the fiscal year ends. County jails must update their population figures monthly; there's no way to justify TDCJ getting to sit on their data for so long.

Texas DPS acknowledges short-staffed call center in budget request to reduce license-center lines

Grits has been critical of state officials who responded to long lines at Texas DPS driver-license facilities by blaming drivers who don't use online systems, in part because of dramatic understaffing of the Customer Service Center to the point that 80 percent of customer calls go unanswered and 83 percent of those answered wait on hold than 10 minutes before they talk to a person. Those folks can't be blamed for going to the license center if they can't get their questions answered on the phone.

So I was pleased to learn that a big portion of DPS exceptional items in their legislative appropriations request (LAR) for the next biennium would go toward beefing up the Customer Service Center, including increasing starting salaries. Reported the Dallas News:

Topping the list was a request for pay raises for the offices' customer service representatives. Each makes an average of $26,000 a year. The agency proposed to increase that to $35,000. Doing so would cost $51.3 million in the 2020-2021 budget cycle.

Amanda Arriaga, director of the driver license division, said the move would "honor" the professional work the customer service representatives do and help stanch high turnover. Staff exits contribute to intermittent office closures and frustratingly long lines, she said.

"We have a pretty significant turnover rate at that ... entry level," she said. "We thought this was a great step in the right direction, that the No. 1 thing we should do is give props to our people who are doing this job every day."

She said the department currently has about 200 vacancies in the division.  

By the time the Lege has a) raised salaries and b) filled 200 vacancies (!), the Customer Service Center will become a much more costly line item.

In addition, DPS wants to increase staff at the license centers:

To increase staffing at the driver's license offices, the department will ask for 962 more full-time employees at a two-year cost of $178.6 million. DPS also will look to expand the number of offices in the 15 highest-growing areas in the state, which include Fort Worth, Plano/McKinney and Denton. That would require 952 additional employees at a cost of $190.1 million.

These investments would be a start, but they won't be enough to resolve the problem unless the Legislature addresses the policies which cause more people than necessary to need to renew their licenses at any given time.

The biggest of these self-inflicted wounds is the Driver Responsibility surcharge, which causes hundreds of thousands of Texans to have their licenses revoked every year. Hard to predict the Lege will eliminate it, since they've failed to so many times before, but if they do it will solve a lot of different problems simultaneously. Compared to how much the Lege will need to spend on license-center staffing and Customer Service Center salaries, the $75 million or so per year generated by driver surcharges for trauma hospitals is a relative drop in the bucket.

It's also time to stop requiring sex offenders to renew their driver-licenses annually. They're already subject to registration requirements and the annual DL-renewal adds almost 100,000 people to license-center lines every year who mostly don't need to be there.

Grits has yet to hear any legislator take responsibility for the Lege-driven policies that are causing long license-center lines - neither regarding chintzy budget decisions on the Customer Service Center nor the extra renewals caused by surcharges, nor needlessly punitive annual renewals for sex-offenders, not to mention the use of license revocations for punishment.

Most of these things aren't even part of the conversation. It's taken weeks of discussion for the MSM or state pols to even mention the Customer Service Center's understaffing, even though its dysfunctional nature is a primary source of the problem.

The Sunset Commission, inexplicably, has suggested addressing the situation by moving authority over driver-license management from Texas DPS to the Department of Motor Vehicles. That's completely pointless! The problems stem from bad budget and policy decisions, not which government bureaucracy oversees the licensing function.

Perhaps, by the time session rolls around, debates over DPS license-center lines will have shifted from the initial finger pointing to actually confronting problems with pragmatic solutions. If they do, then the 86th Legislature will focus on: 1) funding the call center, 2) ending the requirement for sex offenders to renew driver licenses annually, 3) abolition of the Driver Responsibility surcharge, granting amnesty to those who've lost their licenses, and 4) ending use of driver-license revocations to punish non-payment of criminal-justice debt. Those are the underlying pathologies and Texas won't resolve them just by throwing money at the symptoms (i.e., long lines).

See related Grits posts:

• Texas DPS getting a bum rap over proposed driver-license center closures
• How the Driver Responsibility Surcharge contributes to long lines at DPS license centers

Twin-Peaks prosecutions will wait for next McLennan DA

Even a local, elected judge in McLennan County is now openly questioning lame-duck District Attorney Abel Reyna's judgment.

The Waco Tribune Herald reported that Judge Ralph Strother decided to postpone the next trial related to the roundup following the Twin Peaks biker massacre in order to let the next District Attorney make decisions about the cases.

Strother said he'd been “troubled by the whole Twin Peaks matter from its inception.” Reported the Trib's Tommy Witherspoon:

It was Strother, even more than [defendant Tom] Mendez’s attorney, Jaime Peña, who questioned prosecutors Thursday about the riot indictment and expressed concerns that they, in effect, had turned what normally is a Class B misdemeanor into a crime that possibly subjects the defendants to life in prison.

Finally! Grits has been waiting three years to hear somebody in authority criticize Abel Reyna's blatant prosecutorial overreach, which IMO amounts to an abuse of prosecutorial discretion. Nearly all of the 155 people indicted over the incident had nothing to do with the shooting (four of the nine dead were shot by police officers, and the identified biker shooters reportedly are all dead).

Prosecutor Robert Moody doubled down defending the system and criticized the judge: “Honestly, I think it’s a little inappropriate for the court to be making its own judgments on whether it is the charge or not,” Moody said. “I think that’s for a jury.”

Here's the unfortunate thing: In a way, given how the system works now, he's right. Prosecutors in 21st century America have near-complete discretion to charge whomever they want with whatever they want. Many prosecutors routinely over-charge, either to gain leverage against a defendant or, as in this case, whenever they find it politically useful.

That authority was baked into the system from a time when judges and juries had more say in the process. But in recent decades, the justice system has come to rely almost exclusively on plea bargaining instead of jury trials. As a practical matter, that removed judges and juries from the process in 97% of Texas criminal cases, leaving nearly all of the institutional power of the state in the hands of prosecutors.

So Moody is right: Prosecutors in general have unrestricted power when it comes to what charge they should bring against defendants. But prosecutors' overarching power in the modern justice system is a bug, not a feature, and Strother is reacting to its seldom-discussed, unintended consequences. Most people would view the abuse of power demonstrated in the Twin Peaks debacle as evidence the system must be fixed, not that absolute prosecutorial discretion is a valuable thing to be defended.

Clearly Judge Strother is tired of sitting by while DA Abel Reyna botches the Twin Peaks cases to a degree that makes the ATF raid on the Branch Davidians look like a well-planned surgical strike. He's hoping, like the rest of us, that McLennan County voters have selected a rational, grown-up person to run the department and is willing to wait to see. It's probably the best alternative.

Credit to Dallas DA on #RoyOliver conviction, TDCJ's phony AC cost estimates, majority of Llano PD under indictment, and other stories

Here are a few odds and ends that merit Grits readers' attention this morning:

Dallas DA deserves credit on Roy Oliver conviction
Much has been written about the murder conviction of former Balch Springs police officer Roy Oliver for killing 15-year old Jordan Edwards, but here are a couple of things I've not seen emphasized. First, this is the second officer in Dallas County convicted of murder in the last year; Ken Johnson from the Farmers Branch PD received a 10-year sentence in January for killing 16-year old Jose Cruz. Further, the Texas Observer pointed out that a third officer from Dallas PD, Christopher Hess, was indicted in June on aggravated assault as a result of shooting into a fleeing vehicle. All that's a credit to Dallas County District Attorney Faith Johnson, who personally made the closing arguments in Roy Oliver's case. She may be a Republican in a mostly Democratic county, but none of our big-city Dem DAs have been as aggressive when police shoot unarmed kids. Grits also found it significant that Gov. Abbott, who appointed Johnson, on his personal Twitter account weighed in to declare, "White Texas police officer found guilty of murder for fatally shooting black teen in car. This life should never have been lost." Both the framing of the incident in terms of race and the implied criticism of police in the episode are unusual, to say the least, for this governor, even if the comments seem appropriate and moderate to this writer.

Majority of Llano PD under indictment.
A majority of the Llano Police Department (five of nine), including the police chief, has been indicted, according to published media reports.

Hard to believe TDCJ when they make self-interested claims
When TDCJ was arguing before the federal courts against having to require air conditioning in the Wallace Pack Unit, they claimed it would be unreasonably expensive, estimating it would cost more than $20 million. Later, reported the Texas Tribune, "Before settling the lawsuit, the department conducted its own research and the cost dropped to $11 million." At yesterday's House Corrections Committee hearing, however, TDCJ executive director Bryan Collier said the agency now estimates the cost to install air conditioning at $4 million, a more than 80 percent reduction from their original estimate. (Notably, the agency spent more than $7 million fighting the lawsuit!) The agency is rapidly earning a reputation for promoting false, self-interested information, not just to the press and the public but in this case, to the courts.

Bipartisan support for push to change response to 911 mental-health calls
When the the Austin Justice Coalition last year succeeded in convincing the Austin city council to vote against the union contract with the Austin Police Association, it freed up millions of dollars that can now be used to promote other goals. Check out the group's recommendations to the City of Austin for budget changes that would improve public safety. Important highlights include following Dallas' example to pilot sending an interdisciplinary team led by health professionals to respond to mental-health 911 calls instead of patrol officers. In this, AJC stands in agreement with US Sen. John Cornyn, who has endorsed the Dallas project. AJC also recommended funding independent investigation of police officer misconduct and paying for a one-year study process to determine whether the city should make the Austin PD crime lab independent.

Details on Harris County's state-jail diversion court
At the joint House Corrections-Criminal Jurisprudence Committee hearing yesterday, Harris County District Judge Brock Thomas discussed a specialty court they've used to keep from sending as many people for incarceration in state jails. This recent blog post from the National Association of Counties published an interview with Leah Garabedian, Harris County’s Chief Criminal Justice Strategist, discussing those projects, which were funded through a grant from the MacArthur Foundation.

Unfunded maintenance piling up at Texas prisons
Grits had highlighted underfunding of prisoner health services in the Texas Department of Criminal Justice Legislative Appropriations Request, and the Dallas News' Lauren McGaughy detailed unfunded facilities-maintenance costs from the same document. The agency has identified $400 million in maintenance needs, and requested funding for $146 million of that. However, in the current biennium, the Lege appropriated only $40 million for maintenance, and the larger amount was requested in the agency's "exceptional items."

Bail reform goes local
The Fifth Circuit's scaling back of Judge Lee Rosenthal's Harris County bail-reform order may have dampened but definitely has not halted momentum for reform, both locally and statewide. The SA Express News published an extensive editorial supporting reform efforts in Bexar County.

More on blood spatter
After interviewing Pamela Colloff about blood spatter evidence, I was interested to run across this journalistic send-up of blood-spatter forensics published last year in the Springfield News-Leader.

Return of The Wooginator
Congratulations to Amanda Woog, who's moving back to Texas after a stint at the Quattrone Center at Penn Law in order to assume the reins as executive director at the Texas Fair Defense Project. Good luck!

Schaefer: What's the point of state jail felonies?

At the Texas House Corrections Committee hearing this morning, meeting jointly with the Criminal Jurisprudence Committee, Rep. Matt Schaefer asked Judge John Creuzot out of Dallas what is the point of the classification "state jail felony" if the results are poor? Why not have some sort of "Super Class A" misdemeanor that keeps people on probation for two years and just "focus on programming?," Schafer wanted to know, or else make everything a third-degree felony so people would be on supervision longer.

Judge Creuzot, who the Democratic candidate for DA in Dallas and one of the architects of the state jail system a quarter century ago, said he didn't understand what it would mean to get rid of state jail felonies unless the Legislature was going to a) mandate strong probation and b) provide funding. Programming inside state jails had been largely de-funded over the years, he noted.

Criminal Jurisprudence Committee Chairman Joe Moody later elaborated that getting rid of state jail felonies would really mean parsing the code to decide which things should be Class A misdemeanors and which offenses would become third-degree felonies, predicting most offenses would likely go down instead of up.

Grits largely agrees with Chairman Moody, and with Rep. Schaefer's Super-Class-A suggestion. The most important change would be to shift most state-jail felonies - starting with drug offenders possessing less than a gram (Grits would recommend up to 1-4 grams as well) - to Class A misdemeanors, perhaps expanding the amount of time they could remain on probation if drug treatment is necessary, per Rep. Schaefer.

Savings from reduced incarceration could be used to pay for expanded drug treatment and other programming. Indeed, it's hard to imagine another source from which money for treatment might come.

MORE: Lauren McGaughy from the Dallas News gave highlights of the hearing on Twitter. See also tweets from the Texas Tribune's Jolie McCullough.

Podcast: Colloff on blood spatter, causes of long lines at DPS license centers, understaffing at rural prisons, and other stories

If you can get past a few bad puns in the intro, I think we've got a good show for you this time on the better-late-than-never August 2018 edition of the Reasonably Suspicious podcast, Just Liberty's monthly discussion of Texas criminal-justice politics and policy.


The segment I've been most looking forward to, of course, was the interview with Pamela Colloff, long-form journalist extraordinaire, who left Texas Monthly last year to write for ProPublica. We discussed her latest New York Times Magazine cover story about an apparent false conviction based on more-than-dubious blood-spatter evidence. (I'll publish my full interview with Colloff over the weekend.) But I was happy with the rest of the show, too. Here's what my co-host Mandy Marzullo, executive director of the Texas Defender Service, are discussing this month:

Top Stories

• Long lines at Texas DPS driver-license centers.
• Texas prison system can't keep rural prisons staffed.

Death and Texas

• Texas' junk-science writ revisiting dubious forensics in capital cases.

Interview:

• Scott Henson interviews Pam Colloff of ProPublica/New York Times Magazine on her latest feature on blood-spatter evidence and more.

The Last Hurrah

• Governor Abbott opposes red-light cameras.
• Healthcare funding beneath 'minimum standards,' say Texas prison docs.
• 5th Circuit scales back Harris bail-reform order.

One minor error I noticed when I was editing this together: I'd said during the Death and Texas segment that DPS licenses forensic hypnotists, when in fact it's the Texas Commission on Law Enforcement.

Find a transcript of the podcast below the jump.

Last TDCJ dataset now two years old, still waiting on next update

Last year, Grits praised the Texas Department of Criminal Justice for publishing its annual statistical report for 2016 months earlier than usual. But it's now the end of August, and TDCJ still hasn't published the FY 2017 statistical report.

FY17 ended August 31, 2017. So it's been one year since the reporting period ended.

What that means as a practical matter is that every analysis of Texas corrections issues based on annual data must rely on information from the prison system that's now more than two years old!

That's an unnecessary delay. TDCJ has the data, which they compile for internal monthly reports that aren't posted on their website. They know exactly how many people come into, leave, and are housed in the prison at any given moment.

But the prison system benefits from public opacity. When they are criticized, they can always claim that the problems identified are old news and future data will look better. Months or years later when the stats come out, very few reporters go back to doublecheck those claims from old stories.

Grits doesn't understand, at all, why the TDCJ annual statistical report could not be compiled by the end of the calendar year in which the fiscal year ends. Certainly that would make policy debates and interim investigations by the Legislature more probative.

When the data came out months early last year, Grits took that as a sign that the new executive director, Bryan Collier, was making greater efforts to be more transparent and efficient. But now we're back to the same-old-same-old.

TDCJ budget requests less money than needed to meet 'minimum standards'

UPDATED/Corrected. An earlier version of this post understated how much TDCJ proposed to spend on healthcare. It has been corrected throughout.

The Texas Department of Criminal Justice put out its Legislative Appropriations Request today, requesting $7.3 billion for the coming FY 2020-2021 biennium.

Grits will discuss the LAR more thoroughly later, but off the top wanted to point out the health-line item (see exceptional item  #6), and TDCJ's comments about what might happen if prisoner healthcare is not adequately funded.

The agency requested funding of $1.43 billion for inmate healthcare services over the next biennium. However, they informed the Legislature:

an estimated $247.2 million is required to bring the FY 2020-21 funding to the projected levels of expense incurred for the delivery of services currently provided. Funding less than this level, which takes into account the rising costs of health care, could require elimination of services. Mission critical hardware and software systems are well beyond their life cycle and are obsolete. Without these significant upgrades, university providers face serious threats of system failures and security breaches, compromising patient care and safety.

Overall, "According to university providers, additional funding of $281.3 million is critical to ensure effective overall quality of care within the system and deliver the level of services required by minimum standards."

That "minimum standards" comment is significant. University administrators have been telling the Legislature for years that the system was barely constitutional - "on a thin line," UTMB vice president Ben Raimer has said.

Now we learn that the funding to maintain a current level of service is more than quarter-billion dollars less than what university providers say they need to "deliver the level of services required by minimum standards." Well, the only minimum standards that apply to prison healthcare are constitutional standards set by the Supreme Court through federal lawsuits.

So these data imply Texas is spending significantly less what it would need to for prisoner healthcare to pass constitutional muster. I suppose Texas prison administrators and legislative budget writers figure, "We're in the 5th Circuit, let's roll the dice!"

Texas DPS getting a bum rap over proposed driver-license center closures

The press and politicians around the state are blaming the Texas Department of Public Safety for creating a list of 87 under-utilized rural driver-license centers for possible closure. Many of those centers have just one staff member and/or minuscule traffic.

Lt. Governor Dan Patrick was the latest to weigh in, declaring in a written statement, "I do not support the closing of these DPS offices." "I believe the Senators on the Sunset Committee will also make their voice clear on this next week."

Here's the problem with that statement: DPS only created the list because they were DIRECTED to do so by the Sunset Commission. In its April report (p. 3/p. 11 of the pdf) regarding the agency, one of the Commission's "Key Recommendations" for reducing lines at the license centers was to "Require DPS to develop and implement a plan to close inefficient driver license offices."

The Lt. Governor blamed the problem on drivers who don't renew their licenses online:

Patrick said the biggest problem for DPS license offices is that a majority of people visit them to renew their driver's licenses when they could do so online. He said the department needs to develop a more aggressive plan for educating drivers about renewing online. 

"I will be working in the next legislative session to ensure that DPS has the personnel and equipment needed so drivers can renew their license as quickly and easily as possible," he said. "However, the fastest and best way to significantly cut wait times now is simply to let the thousands of Texans who show up everyday, and don't need to be there, know that they can renew their license online."

But as Grits argued the other day, that critique amounts to blaming drivers for the government's failed systems and the Legislature's chintzy funding decisions. The Customer Service Center which takes phone calls from drivers with license issues is so understaffed that only 20 percent of calls are even answered, and 83 percent of those must wait on hold for 10 minutes or longer before they can speak to a person.

Although Sunset staff didn't address the underlying budgetary question, it's dire, and a huge aspect of drivers' confusion about where and how to renew licenses. According to the most recent DPS Strategic Plan, currently the agency's customer service center (CSC):

receives approximately 24,400 calls per day, but because of limited staff and technology it is only able to answer approximately 4,880 of those calls, 20% of the demand. The CSC is currently only able to answer about 17% of these 4,880 calls within 10 minutes, far below an acceptable customer service level. Customers are forced to call the CSC multiple times to enter the queue to speak with a Customer Service Representative (CSR). Once in the queue, customers must wait an average of 15 minutes before their call is answered.

That's a budget problem created by the Legislature, not a problem with DPS management. Fund the call center and confused drivers would have a way to know how best to engage with the DPS bureaucracy. As things stand, they show up at the driver-license center because there's no other way for them to engage with the agency to understand how to navigate the process.

Even that, though, won't fix the structural problems Grits identified earlier in the week. DPS revokes driver licenses for non-payment of debt about a half a million times per year, and all told 1.7 million people currently have their licenses revoked. That significantly increases the number of people showing up to renew their licenses every year. (California last year had to address the same issue, ceasing use of driver-license suspensions to punish non-payment.)

In the comments to that earlier Grits post, Mary Sue Molnar from Texas Voices added that the insensible requirement for nearly 100,000 sex offenders to renew their licenses annually (separate and apart from existing sex-offender registration requirements) also doesn't help the problem.

In essence, these structural problems with the licensing system mostly stem from driver-license "mission creep" - using them as a form of virtue signalling or debt collection as opposed to a mechanism for ensuring drivers have minimum driving skills and providing valid identification.

The biggest reason DPS isn't doing a better job of "educating drivers" is the legislative decision not to adequately fund the DPS Customer Service Center. But there are also policy changes that would reduce pressure on lines at the DL centers, in addition to public-education campaigns. And I've yet to hear a Texas politician talking about any of them, at least in the context of this debate. (Some of these conversations did begin in the 2017 legislative session, but more in the context of equity, not license-center lines.)

If lawmakers want to make sure the state can afford to give rural people a local driver-license facility, regardless of how infrequently they use it in sparsely populated areas, and also improve customer service for most Texans, then they must: 1) abolish the Driver Responsibility Program, 2) stop debt-related driver-license suspensions and collect debt using private-market best practices, 3) eliminate unnecessary annual renewals for sex offenders (thanks Mary Sue!,) and 4) give DPS the resources it needs to pick up the phone when Texans call their Customer Service Center.

Your correspondent, perhaps unexpectedly, has a lot of sympathy for DPS in this debate. In all of this they're reacting to legislative mandates: from the license suspensions to requiring sex offenders to renew annually to understaffing the Customer Service Centers to compiling a list of license centers for possible closure. They have done exactly what the Legislature asked them to do in each and every instance, and now they are being blamed for following orders.

Harris Sheriff's captain providing cover for Balch Springs shooter, the TX bail-reform roller coaster, and other stories

Here are a few odds and ends for Grits readers to chew on headed into the weekend:

Harris Sheriff's captain providing cover for Balch Springs shooter
A Harris County Sheriff's captain testified as an expert witness for the defense in the trial of Roy Oliver, the Balch Springs police officer who shot a fleeing, unarmed 9th grader to death in a nationally publicized episode that got Oliver fired and indicted. One wonders, does this mean we may expect the Harris County Sheriff's office to take a less strict view on when its officers may shoot at fleeing, unarmed suspects? The Dallas News reported that the Harris County Sheriff's captain, Jay Oliver Coons, "reviews use-of-force cases at the sheriff's department." Does Sheriff Ed Gonzalez agree that the shooting of Jordan Edwards was justified and it would be okay if his deputies did the same thing, or has his captain's testimony gone off the reservation? Inquiring minds want to know ...

Bail-reform roller coaster
August saw bail reform efforts take a gut-wrenching roller coaster ride. First, Gov. Greg Abbott joined legislative and judicial reformers in supporting bail reform, suggesting the bill be named after a murdered state trooper.  But then the Fifth Circuit Court of Appeals unexpectedly gutted the order governing Harris County bail policies, reneging on critiques of detention policies that discriminated based on defendants' wealth. Instead, they insisted that such discrimination is okay as long as defendants receive individualized hearings. That relieves some pressure on the Texas Legislature to pass bail reform, but does so just at the moment state leaders appeared to be reaching consensus on what bipartisan reforms might look like. Who knows where the issue goes from here?

Felony record not a bar to council candidacy
The Austin city clerk this week agreed that Lewis Conway, Jr., is eligible to run for office because, despite a quarter-century-old manslaughter conviction for stabbing to death a man who allegedly stole his drug stash. Conway is  now "off paper," having completed his parole requirements and regained his right to vote. The Texas Tribune reported that, "Conway's success Tuesday is unique for one big reason: He's a convicted felon." But "unique" is not the right word because in 2014, Bexar County elected a former drug dealer with a felony conviction as its District Attorney, so the precedent was already set. As with Conway, local officials and opposing candidates declined to challenge Nico Lahood's candidacy in a much higher-stakes race. Grits congratulates Conway on affirming that precedent, and I'm plesased he'll be on the ballot.

Management inattention to crime lab at Austin PD backfiring
Austin PD crime lab's DNA section may remain shuttered for many more years, judging by a report that the city may continue using an outside DNA lab through 2022. Although public debates and the local media have downplayed the culpability of APD managers, the unfortunate truth is that under the previous chief, Art Acevedo, the department largely ignored its civilian functions like crime-scene techs, victim services, and the crime lab. Instead, they focused every extra dollar on expanding the number of and pay going to officers on patrol. Just weeks after Acevedo left to take the reins at Houston PD, the crime lab debacle blew up under his successor's watch. Current Chief Brian Manley was one of Acevedo's commanders and has similarly prioritized budgets for sworn staff over improving the agency's civilian functions. Despite that, the city council could locate no other candidates to even consider; apparently Manley was the only qualified guy they could find. (There's no "Rooney Rule" for police chiefs; after Dallas hired a black woman as chief, for example, there clearly were no other minority candidates anywhere who might be worthy of consideration, hence Austin considered none [/sarcasm].) So I'm not surprised that officials expect the situation to linger on. APD hasn't prioritized its civilian functions in many years and it's hard to view Manley's hiring as anything more or less than an affirmation of the status quo.

DPS suggests closing license centers as long lines loom
As headlines continue about long lines at DPS driver license centers, the agency has suggested closing 87 smaller offices - many of which have only one employee and/or low customer volumes - in order to consolidate resources at the centers with long lines. That could be the right management move, but politically, Grits predicts it will be a non-starter. A few may be closed, but I'd be surprised if the number of closures reached double digits, much less 87. And anyway, closing small facilities won't solve the bigger problems exacerbating long lines at the DPS megacenters, which have more to do with legislative policy than agency-level logistics.

Junk science challenges proliferating
Many so-called "forensic sciences" are really non-scientific, subjective comparisons made by cops, not scientists, argued an editorial at The Legal Intelligencer. That was the reason Texas created a new form of habeas corpus writ - discussed recently in the Texas Tribune in the context of shaken-baby cases - to allow redress when the legal system bases convictions on junk science. The writ is also currently being used to challenge the validity of bite mark evidence as well as blood spatters, a topic Grits delved into in an interview with ProPublica reporter Pam Colloff (read her latest) for the podcast that will be out next week.  RELATED: Top ten junk forensic sciences challenged in Texas.

Cohen doesn't cotton to FIRST-STEP opposition
Check out Right on Crime Director Derek Cohen's rebuttal to U.S. Senator Tom Cotton regarding the latter man's opposition to the FIRST-STEP Act and sentencing reform. Wrote Cohen, "We started Right on Crime in 2010 to advance policies that protect both the taxpayer and their pocketbook, and the outcomes of no government program is above scrutiny. Prisons are a vital contributor to our public safety, but are only one of many tools is our toolbox." In recent days, we've seen President Trump first embrace the bill and then reportedly back off until after the election. From this remove, Grits can't tell who in D.C. is serious about reform or what chances it has in the current political environment. Whatever is the case now could change with the next presidential tweet. But I do know that reformers' opposition to the bill was ill-considered and based on partisan considerations, not #cjreform principles. Passing moderate bipartisan reform is clearly better than doing nothing, which is the alternative.

Join podcast crew for Texas Defender Service meet-and-greet

My podcast partner, Mandy Marzullo, who is the executive director of the Texas Defender Service, asked if I'd let Grits readers know about that group's office warming event this evening. If you're in Austin, stop by 1023 Springdale Road, Building 14, Suite E (4 to 7 pm) and perhaps I'll see you there!

Our August podcast has been delayed a bit because your correspondent has been significantly under the weather since I returned from a much-needed vacation. But we'll be recording it over the weekend, so look for a new one next week. You can listen to the July episode here.

How the Driver Responsibility surcharge contributes to long lines at DPS license centers

One of our legislator friends reached out this week to ask about a comment Grits made in this roundup related to long lines at Texas driver-license megacenters around the state. Your correspondent believes that unnecessary driver-license revocations and understaffing of civilian DPS customer-service functions are the main causes of long lines at DPS license centers.

This legislator wanted to know, could Grits quantify how much extra pressure people with revoked licenses put on the system? Not precisely. But let's attempt a ballpark, back-of-the-napkin estimate, and also elaborate on the call-center problem.

Phone-center flaws force unnecessary visits to DL centers

First, how many people are headed to the DPS for license renewals anyway? And how many are required to be there? There are roughly 16 million licensed drivers in Texas. Those drivers must renew their licenses every seven years, so each year ~2-2/7 million annually must renew their licenses. Half of those can do so online, so the baseline minimum number of people coming in for this service is around 1-1/7 million, or ~1.14 million people.

The Dallas News reported that, "According to the Department of Public Safety, more than 3.6 million people who visited DPS offices in 2017 didn't need to do so." But framing the issue that way amounts to DPS blaming drivers for its own failed systems. In fact, a large number of these unnecessary visits occur because people cannot get help on the phone. According to the most recent DPS Strategic Plan, currently the DPS customer service center (CSC):

receives approximately 24,400 calls per day, but because of limited staff and technology it is only able to answer approximately 4,880 of those calls, 20% of the demand. The CSC is currently only able to answer about 17% of these 4,880 calls within 10 minutes, far below an acceptable customer service level. Customers are forced to call the CSC multiple times to enter the queue to speak with a Customer Service Representative (CSR). Once in the queue, customers must wait an average of 15 minutes before their call is answered. 

Unfortunately, DPS has so far focused on beefing up staffing at the driver-license centers instead of the Customer Service Center.

Increasing call-center staffing - Grits would suggest by six-to-eight-fold, if you truly want to keep up with demand - would significantly reduce lines at the driver-license center. But even that wouldn't solve the whole problem.

The contribution of license revocations to long lines

DPS issues more than 5 million licenses per year, according to its latest biennial report (p.12). Renewals make up ~2.3 million, another 650,000 or so are first-time licensees, and about a half-million commercial drivers licenses are issued annually. So those categories account for ~3.45 of slightly more than 5 million licenses issued.

The next biggest category of licenses issued - although DPS doesn't quantify it in their public documentation - are people with revoked licenses trying to get them back. How many people are we talking about?

DPS suspends roughly half a million licenses per year, they told the Sunset Commission last year (p. 419-420): "In FY 2016, there were 432,847 driver improvement suspensions and 77,611 safety responsibility suspensions."

Over time, these suspensions add up. As of November 2016, DPS told the Sunset Commission, a total of 3,082,627 drivers had been assessed 16,505,923 DRP surcharges since the program's inception. Of those 3 million, "Approximately 1.4 million drivers are currently suspended for non-payment."

On top of that, another ~300,000 have lost their licenses solely for non-payment of traffic fines. All told, about 1.7 million Texans - more than 10 percent of licensed drivers - have had their licenses suspended for nonpayment of either traffic tickets or the Driver Responsibility surcharge, the Washington Post reported earlier this year, noting that, "Texas, by far, suspends the most driver’s licenses for failure to pay fines."

So, there are ~3.45 million licenses issued for renewals, first timers, and CDLs, but 1.7 million people who also need to have their licence reinstated because of a suspension. They don't all try every year, but hundreds of thousands certainly do, with the number growing annually. And since these can be complicated situations, they may require multiple visits. When my daughter had her license suspended for an unpaid surcharge a few years back, she had to go to DPS several times before it was all resolved.

Moreover, it's possible for some of those 1.7 million to have licenses issued and suspended multiple times within the same year. Say, for example, a person has had their license suspended for failure to pay a Driver Responsibility surcharge. They approach DPS to get on a payment plan, their license is reinstated, but six months later they quit making payments and their license is revoked again. Then, say that three months after that, the person resumes payments and seeks to have their license reinstated. That would account for two licenses issued - to someone who otherwise likely wouldn't need it renewed at all that year - in just a few months time.

I can't quantify it precisely, but that's a big chunk of the problem.

Other trends and caveats

Grits would also caveat DPS' claim that population growth is driving licensing waits. Yes, Texas' population is growing, but a lower proportion of young people are getting driver licenses. According to a 2016 study, "For 16- through 44-year-olds, there was a continuous decrease in the percentage of persons with a driver’s license for the years examined. For example, the percentages for 20- to 24-year-olds in 1983, 2008, 2011, and 2014 were 91.8%, 82.0%, 79.7%, and 76.7%, respectively." Similarly, the number of people aged 45-69 with a driver license has been decreasing for the last decade, said the same study. People over 70 were the only category where the proportion of people with licenses increased until 2011, when it began to slightly decline.

This trend substantially mitigates population growth. If young people were getting licenses at the same proportion as in 1983, when your correspondent got his learner's permit, imagine how much more overwhelmed the license centers would be!!

DPS faces a big job managing Texas' driver licenses. But the job is made more complicated and the volume is increased substantially by the use of driver licenses for debt collection (and, more broadly, virtue signalling) as opposed to simply ensuring drivers are qualified and providing reliable identification. California last year addressed the same issue by ceasing use of driver-license suspensions to punish non-payment. 

Texas leaders have responded to long lines at driver-license centers by throwing more money at the problem to build mega-centers and beef up license-center staffing. More staff is certainly needed in the short term (although if Grits ran the show, I'd focus more on staffing the Customer Service Centers). But even additional staff investments won't fix underlying structural issues regarding revoked licenses. That's a function of the failed Driver Responsibility surcharge and using driver-license revocations for punishment. Like the DPS staffing budget, those polices can only be addressed by the Texas Legislature.

Changes to DNA-mixture software raise questions about old versions

STR-Mix, one of the DNA-mixture testing conpanies hoping to prove their algorithms can successfully identify suspects when the DNA is mixed and messy, has issued a new version of its software, a press release informs us.

The biggest difference?

Users can now input a range for the possible number of DNA contributors. In prior versions, they had to guess how many people's DNA is in a sample, even if they didn't and couldn't know.

For example, say an analyst is confronted with a "touch DNA" sample taken from a swab on a doorknob. They know for sure there is DNA there, but how many contributors are represented in the sample? Two, three, six, fourteen? How many people have touched the doorknob since it was last cleaned? And when it was cleaned, was old DNA wiped away or just damaged or deformed by the cleaning product?

Under the old method, analysts had to guess at the number of contributors - say, "5" - then the software spit out a probability based on those assumptions. The software did not adjust for the possibility they guessed wrong. Now it does.

Which raises the question, what happens when one re-runs old tests where analysts guessed the number of contributors? According to the press release, users can use the new software to "calculate multiple" likelihood ratios for old samples based on "multiple reference inputs." So which "likelihood ratio" should courts rely upon if there are multiple choices? How are judicial gatekeepers supposed to evaluate a situation when the original likelihood ratio testified to in court based on their software is now either deemed wrong, or is just one of multiple choices now being offered?

It seems inevitable that the software in those earlier cases overstated the probability that any given DNA belonged to a defendant. In one notable example, STR-Mix's old software accused a defendant while another, competing black-box service, TrueAllele, excluded the defendant as a suspect. One wonders, if they re-ran the test with the new software, using a range of possible contributors to the mixture, might some of STR-Mix's "likelihood ratios" now agree with TrueAllele's exclusion?

Grits does not believe any black-box software whose inner workings are not publicly available for peer review by opposing experts - right down to the all-important coding language - should be used in court to interpret DNA mixtures. Too many well meaning people keep getting the math wrong.

See related Grits posts:

• Courts punt on forensics surrounding DNA mixtures
• A reluctant scoop: Changing interpretations of DNA mixtures vex legal system
• Labs must correct wrong DNA mixture analyses, learn when to recognize 'crap'
• Resources on DNA mixtures
• The challenge of notifying defendants in large-scale forensic error cases
• DNA mixture SNAFU a mess but don't expect 'deluge' of innocence claims

Another police charity scamming money raised for officers' widows

Earlier this year, Grits had written about a scam charity raising money supposedly to give to families of two Dallas police officers killed in the line of duty, but which in reality gave only a small fraction of funds raised to officers' families.

Now, Naomi Martin at the Dallas News has the story of another scam charity doing the same thing, this time operated by a Dallas police sergeant. Go read the whole thing, she did a great job.

This blog has criticized these phony law enforcement scams for years, but the Attorney General's office seems incapable of reining them in and, otherwise, only the toothless Better Business Bureau even tries.

Many of our statewide politicians spend a great deal of time telling us how much they respect and admire law enforcement. So how is it that in 2018, 15 years after Republicans took control of Texas state government, these bogus charities are still allowed to raise money in the name of police widows but pocket most of the cash themselves or share it with their friends via lucrative fundraising contracts? There has to be a way to limit this sort of cash-grubbing chicanery.

State policy worsens driver license waits, how to expand drug treatment, police-union demagoguery redux, and other stories

As Grits catches up on all the Texas criminal-justice news that happened while the blog was on hiatus, let's clear some browser tabs with a roundup posts, on the off chance that some readers missed these stories, too:

Massive 8-hour waits at DPS license shops worsened by state policy
While there are many causes for continued, massive waits at Texas DPS drivers license centers, they're undoubtedly worsened by the nearly two million people who've had their licenses revoked thanks to nonpayment of traffic tickets and driver responsibility surcharges. Using license revocations as punishment for nonpayment instead of simply to certify driving acumen has clogged facilities with people trying to get their licenses renewed outside of the regular seven-year cycle, and many of them face complicated bureaucratic scenarios that take more time than average customers. Trying to squeeze poor people for every last dollar that way is penny wise and pound foolish. Better to eliminate those surcharges and stop revoking licenses for debt altogether, leaving unpaid fines and surcharges to traditional collections services to sort out.

TCJC: Tailor probation for young defendants
The Texas Criminal Justice Coalition put out a new report by our pal Doug Smith calling for expanded probation services and revamped requirements for probationers aged 17-25. By their count, 42 percent of 17-year olds who receive probation are revoked after two years, and statewide more than half of all revocations are for technical violations, not commission of a new crime. Moreover, 31 percent of those who go on probation aged 18-21 are revoked within two years, with revocation numbers declining substantially as probationers age. The reforms suggested would require new investments for specialized probation caseloads, but would pay for themselves in the medium run.

Bail-reform boost
Bail reform efforts received a boost from Gov. Greg Abbott's endorsement, as he suggested naming the legislation after a state trooper was killed by a defendant who would have been deemed high-risk but was released on a money-bond. Abbott focused more on keeping high-risk defendants locked up, but the legislation cannot pass - much less with the 2/3 majorities needed to amend the state constitution to authorize preventive detention - without addressing low-and-medium risk defendants locked up solely because they cannot afford to pay. With litigation in Harris County already dictating new rules for misdemeanants and the Dallas litigation over bail threatening to extend those requirements to felony defendants held pretrial, there's a lot more pressure for the Legislature to pass bail reform in 2019 than there was for the bill that failed last year. Whether or not Abbott's endorsement pushes this legislation over the top - and the bail-bond industry will fight it bitterly to the very end - Texas counties are poised to change how they make pretrial detention decisions in the short-to-medium term. It's impossible right now to predict when change is coming to any given county, but rest assured, it's coming.

Redundant red-light camera debate finally convincing pols
Gov. Abbott also came out in favor of abolishing red-light cameras in Texas after a new study found that the cameras increase injury accidents overall. The study concluded that, "the cameras changed the (angle) of accidents, but (there is) no evidence of a reduction in total accidents or injuries,” according to a recent report by researchers at Case Western Reserve University in Ohio who reviewed Texas traffic data." Of course, studies have been finding the same thing for years, but I'm glad this one finally caught the governor's attention and/or finally convinced him. Better late than never.

Unearthing the dark and bitter legacy of convict leasing in Texas
Large numbers of unmarked graves of black prisoners used in the convict leasing program at the old Imperial Sugar Company in Sugar Land sparked some excellent journalistic conversations the topic, including editorials from the Houston Chronicle and the New York Times. For more background, see this website created about the Sugar Land site and an academic offering on "Penology for Profit" documenting the Texas convict leasing system from the end of the Civil War to just before WWI.

Two options for increased drug treatment
Legislators investigating how to respond to increased drug overdose deaths were told that the state faces a chronic shortage of drug-treatment services. There are two ways they can solve that problem without raising taxes: A) Expand Medicaid under the Affordable Care Act, or B) reduce penalties for low-level drug possession and use the savings from reduced incarceration to pay for more treatment services. There is no option C.

Cowtown pension pitch would take cash from cops pockets
A proposed plan to stabilize the police pension fund in Fort Worth would require officers to pay more, reducing their take home pay, and reduce benefits going forward so that there will now be two tiers of retirement benefits, with new retirees getting less. Not everybody is thrilled about it.

Police-union demagoguery redux
Demagogic union attacks on the San Antonio police chief are really a proxy for their feud with the mayor and city council members who were tough on them in contract negotiations, the SA Express News reported. The SA police union is utilizing the most aggressive, Saul-Alinskyite tactics long advocated by Texas police union mugwumps for undermining politicians who oppose union ends. In Austin, those tactics backfired and caused the city council to reject a negotiated police contract last December. Now, the Austin Justice Coalition is pressing the city council to spend the money they previously paid for police bonuses and perks on non-law-enforcement measures that benefit public safety. See an interview by Grits with police-union consultant Ron DeLord discussing why those hardball union tactics may be outdated and ineffective in the current political environment.

Mata matters
Grits first met civil rights activist Johnny Mata around 1997, and he'd already been fighting the good fight on police accountability for two decades. At 82, he's all but a local icon in Houston. I was glad to see the Houston Chronicle give him his due in this feature story. The article reported he's been diagnosed with leukemia. Good luck, Johnny, I'm rooting for you.

Prison abolition vs. reform
Politico published a feature on prison abolition, but to me the differences between abolitionists and other #cjreformers are vastly overstated, certainly in the short-to-medium term. (And as John Maynard Keynes opined, "In the long run we are all dead.") Whether your goal is to cut the prison population by 20 percent, by half (e.g., #cut50), or to abolish prisons altogether, the first steps toward decarceration remain the same. The first fight is over the next big chunk of prisoners we can decarcerate, no matter what is one's ultimate goal. And if abolitionists oppose short-term reforms because they're holding out for the Big Kahuna of total abolition, they're allowing the perfect to become the enemy of the good and IMO are hurting the people they purport to help.

***

Finally, here are a few stories from outside of Texas that merit Grits readers' attention:

• Update on #cjreform in Congress
• State prisons and delivery of hospital care (includes TX as an example)
• How neuroscience could reform criminal justice
• Chicago program IDs men most likely to be shot and hires them
• Police accountability reforms in Minneapolis
• North Dakota modeling its prison system on Norway
• California considers limits on felony murder rule (aka, the "law of parties")
• Governors suggest bipartisan #cjreform agenda

TDCJ can't stem staff turnover crisis at remote, rural units; #txlege must align policy with reality and reduce low-level drug sentences

While your correspondent was on a much-needed vacation, the Houston Chronicle's indefatigable Keri Blakinger published a story updating the Texas prison system's efforts to staff rural units, which have up to 49 percent vacancy rates. Her article opened:

The Texas prison system handed out more than $9 million this fiscal year on bonuses to aid recruitment as they grappled with extensive officer vacancies, but department data shows the cash outlay has hardly moved the needle. 

Seven months after the state launched a concerted effort to bring down the 14 percent officer vacancy rate, the Texas Department of Criminal Justice still has 3,675 unfilled positions - roughly 30 more than in January when the leadership started tackling the problem.

Despite record hiring bonuses given out to new hires at understaffed facilites, Blakinger reported:

more units are severely understaffed now than last fall. The latest unit-by-unit figures - from May 31 - show that fourteen units were under 75 percent staffed. Dalhart was down to 51 percent staffed. At the Daniel Unit, between Lubbock and Abilene, staffing dropped from from 77 percent in October to only 62 percent of jobs filled in May. 

And the notorious Ferguson Unit - where a teacher was allegedly raped by an inmate last year in an incident her lawyers blamed on understaffing - was down to 69 percent staffed. 

Of the 29 units with hiring bonuses, 19 - including Daniel, Ferguson and Dalhart - had higher vacancy rates in May than they did in October.

Employees punished alongside prisoners

Blakinger raised the seldom-discussed but potent employment barrier of requiring people to work in un-air-conditioned prison units. Litigation framed the issue in terms of prisoners' health and well being, but the more pressing state interest may be the inability to hire people to work in harsh, unpleasant conditions:

“If they would air condition every unit across the state they would keep more people,” said one officer, who asked not to be named because he wasn’t authorized to speak on the record. “If you as a corrections officer tell your lieutenant, ‘Look I’m hot, I need to go cool down,’ they’re gonna laugh you off the unit.”

Ask yourself: Would you take a job in a small rural town for a low-thirties salary surrounded by convicted felons in an un-air-conditioned metal building? I'm guessing most people reading this would say "No." (And if you would say "Yes," go apply to your nearest prison. They're hiring.)

These various issues compound. Understaffing contributes to a more dangerous and occasionally deadly environment for guards, and the summer heat amps up everybody's tensions, making prisons a more perilous place to work, less inviting to new applicants, and more likely to drive away existing employees.

That's the piece the hiring bonuses can't and won't solve. Former union boss Lance Lowry made that point in the story. “A bonus just gets people in the door,” he said. “We’ve never had a problem getting people in the door - the problem is getting those employees to stay.” That's exactly right. A "turnover" problem is about dissatisfaction of employees who are already on the payroll, not how many people arrive on the front end.

Piddling guard salaries and the limits of prison parsimony

The biggest problems remain low pay and oppressive workplace conditions. IMO the rural settings wouldn't matter and TDCJ could easily fill its positions if prison guards here made as much as in California, for example, where the union is politically powerful and starting salaries are around double what they are here.

Texas spends $3.5 billion per year on TDCJ, which sounds like a lot, but given our highest-in-the-country prison population numbers, we're pretty chintzy when it comes to spending on state prisons, a point I made in the story:

“We already pay less to incarcerate people than just about every other state,” Henson said. A 2015 Vera Institute of Justice analysis showed that Texas has 11.6 percent of the country’s state prisoners, but only accounts for 7.6 percent of prison spending. 

“We’re underspending at pretty radical levels,” he added. “If you don’t want to spend more, your options are: incarcerate fewer people. That’s it.” 

Marc Levin, vice president of criminal justice policy at non-profit Texas Public Policy in Austin, agreed. 

“I think it’s the ideal solution,” he said. “We would obviously want to look at the units with the biggest staffing issues and biggest capital costs.”

Based on the Vera Institute figures cited above, if Texas' proportion of state prison spending matched its proportion of state prisoners - i.e., if we spent the nationwide average amount per-prisoner - we'd spend $5.3 billion per year instead of $3.5 billion.

The pretense of parsimony is a picayune point of pride for many Texas legislators, but it's also the source of most of the prison systems problems. Texas' under-spending comes from several sources, but mainly low guard pay, lack of air conditioning, and dramatic under-spending on inmate health care. 

A prescription to match the diagnosis

Grits was further quoted in the story, pointing out that there's only one, real solution to the problem: "to reduce the incarceration levels enough to close more units and this time target units with high vacancy rates for closure." Let's explore that a bit further.

The shortest distance to lowering incarceration levels in Texas is to reduce sentences for non-violent drug offenders. Texas has already adjusted property-theft thresholds for inflation, diverting thousands of low-level theft offenders from prison. And the 2007 probation and parole reforms have likely reached the limits of what can be expected from probation reform: after a decade, local judges and probation departments remain slow to reduce revocations for technical violations or use early-release provisions for successful probationers. Probation departments have economic incentives to keep successful, fee-paying offenders on the rolls and to revoke those who cause headaches, whether or not those folks engage in criminal misbehavior.

Best case: Probation reform may offer medium to long-term savings, but in the short-term would actually require more investment.

That leaves two large categories: drug offenders and people convicted of violent crimes.

While we do over-incarcerate violent offenders, locking thousands of people up long after they've aged out of crime and pose little threat to society, any statute change aimed at reducing incarceration for that group would result in long-term benefits that won't address the immediate crisis. The person incarcerated for ten years instead of 15 saves the state a lot of money, to be sure, but we wouldn't see any of the savings for a full decade after they were sentenced. 

By contrast. reducing penalties for low-level drug offenders - say, making possession of up to four grams a Class A misdemeanor instead of a felony - would save lots of money in the immediate, biennial state budget, and even more in the long term. Legislators only view the budget in terms of a two-year time horizon (since many of them won't even be legislators ten years from now). So politically, out-year savings are mostly irrelevant at the capitol. Altering drug sentences would have the biggest short-term impact on both decarceration and budget savings, allowing the state to move toward immediate closure of several units and solving numerous, nagging problems at once.

That's the only real alternative for reducing incarceration enough in the near term to help Texas with its rural-prison understaffing problem. New-hire bonuses are a band-aid, at best, and won't stop staff from wanting to leave these hot, dangerous, underpaid jobs.

Conservatives 💗 'progressive' prosecutors, risk-assessment deep dive, on the limits of a punitive approach on fines, and other stories

As Grits prepares for a brief hiatus, let's clear some browser tabs and perform a quick roundup of items that merit readers' attention (or which I'd like to look at more closely once I get back):

TDCJ heat deaths magically stopped when litigation started
TDCJ says that only ten people in the prison system were diagnosed with heat stroke or heat exhaustion, or given intravenous fluids for a heat-related illness, during the recent high-temperature spate, and that no one has died of heat-related illnesses since 2012. Both those numbers seem unlikely to me. Rather, it's more probable that TDCJ just stopped labeling deaths as heat-related after litigation began in 2012. Plus, given what they're counting, when heat-related illnesses arise, TDCJ can keep inmates from being counted simply by NOT treating them with IV fluids. These low numbers don't seem credible; another reason we need independent oversight so that causes of death aren't being spun to avoid accountability.

TPPF's lingering hunger for grand-jury reform
The Texas Public Policy Foundation is ramping up to support grand-jury reform in the 86th Legislature, and published this item arguing for allowing grand-jury witnesses to be represented by counsel.

Poll: Public warming to justice reform
A new national poll demonstrates widespread support for the FIRST-STEP prison reform act, which Grits endorsed here, as well as criminal-justice reform, generally. See coverage from The Hill.

Conservatives 💗 'progressive' prosecutors
We've discussed on this blog the memo from Philadelphia DA Larry Krasner detailing what prosecutors can do to scale back mass incarceration. IMO it's one of the most important justice-reform documents in the last decade - as important for operationalizing the critique of mass incarceration as Michelle Alexander's New Jim Crow book was to popularizing it. But we haven't yet discussed the bipartisan appeal of Krasner's message. The American Conservative published an article arguing that Krasner's "objectives dovetail closely with those of conservative and libertarian justice reformers. All share a broader vision of radically reshaping a criminal justice system that is deeply unjust and out of line with American constitutional and moral values."

Deep dive into risk assessment debate in PA
Grits has expressed disagreement with liberal reformers over sweeping criticisms of risk assessment instruments based on alleged racial disparities in some models promoted by private vendors. Based on analyses I've seen, Grits argued that "the maximal harm hypothesized from risk assessments simply doesn't outweigh harms from the status quo of requiring money bail for everyone." So I was interested to see that many of those same national critics got a new risk-assessment regimen in Pennsylvania put off for six months for evaluation based on allegations of racial bias. In particular, links to all the written testimony submitted to their sentencing commission were published online, and I wanted to post the link so I can go through them later.

It's not that I couldn't be convinced that liberal opposition to risk-assessment-based bail reform isn't throwing the baby out with the bathwater. I'm just unconvinced by the arguments I've heard thus far. Too often, such critics fail to acknowledge that the alternative isn't some un-biased utopia but the even-more-biased status quo where judges sentence less harshly after lunch and harbor myriad biases that may just as harmfully infect the system, but with far less transparency than risk assessments. At least risk assessments can (and should) be adjusted and re-validated over time. Perhaps the extensive testimony out of Pennsylvania will cast more light on this emerging debate.

On the limits of a punitive approach on fines
Some of what's happening across many vectors in the justice system today is that we've reached the limits of the tools traditionally used to fight crime that now result in diminishing returns. When penalties were low, raising them perhaps created more deterrent. But once they're high, raising them more can be counter-productive. That's what you're seeing in Chicago, where a move to raise ticket amounts for vehicle-sticker violations backfired. Rather than raise millions in revenue, as projected by the city, it drove thousands of predominantly black Chicagoans into "substantial debt," and caused many "to lose their licenses, lose their cars and even declare bankruptcy," according to an investigation by ProPublica. One can't squeeze blood from a stone.