Texas trends follow national decline in misdemeanor arrests

The Wall Street Journal on Sunday published an item reporting on a nationwide decline in misdemeanor arrests, a trend this blog has been documenting for several years. So Grits thought it worth comparing the national trends cited to Texas data.

The WSJ article focused on jurisdictions where misdemeanor arrests could be broken out by race, with arrests of black people accounting for a disproportionate share of  the decrease. Texas data don't immediately allow us to make similar, racially delineated analyses, but the overall trend of reduced misdemeanor cases holds for Texas.

Texas misdemeanor cases by the numbers
Looking at top-line stats from the Office of Court Administration's 2018 Annual Statistical Report (from which all graphs below are screenshots), the number of non-traffic misdemeanor cases in Texas peaked in 2007 at 585,499, declining to 404,001.

When you consider Texas' dramatic population growth over these years, the decline appears even more significant.

Texas witnessed especially large declines over the previous five years in misdemeanor theft (-47%), theft by check (-81%), and driving with an invalid license (-25%), with small increases (less than population growth) for family violence (5%), marijuana possession (4%), and 1st offense DWI (2%).

Grits finds especially interesting the decline in misdemeanor-property-theft cases. Texas raised property-theft thresholds in 2015, so that one must now steal $2,500 to be charged with a felony. Felony-theft cases predictably declined in response, but misdemeanor theft cases declined even more. Perhaps that's a function of cops being less willing to focus attention on low-level cases, the tuff-on-crime crowd will surely say. But both reported crime stats and the National Crime Victim Survey tell us property thefts declined throughout this period. So if police did de-prioritize them, then policing clearly wasn't having the crime deterring effect that traditional models might predict. In fact, if such "de-policing" occurred, it correlated with less theft, not more. This raises a counter-intuitive possibility: Maybe what police do after the fact doesn't have that much to do with crime rates in the first place?

The 2018 data don't capture the period after the Texas Legislature accidentally made pot cases more difficult to prosecute without a lab test, but before then, both misdemeanor drug cases (mostly pot) and felony drug cases (mostly harder drugs) were a big source of growth in prosecutions:

Here's how new Texas misdemeanor and felony cases broke out in FY 2018:

The biggest decline, however, has been in traffic cases and other Class C misdemeanors, a trend which this blog has documented in the past.

Delving more deeply into these Class Cs, every category except local traffic ordinances have declined over the last five years. (I'm curious if readers have any suggestions why enforcement of local traffic ordinances would increase by a third over the last five years while enforcement of state traffic laws declined?)

Moreover, juvenile Class C cases have plummeted, driven largely but not entirely by the state's decriminalization of truancy:

Reporters or policy makers who would like to replicate these data for their local area may use the OCA's data query tool to break them out by jurisdiction.

What's going on?
So why is this happening? Some of the trends cited in the WSJ article don't apply to Texas - e.g., marijuana legalization or decrim hasn't happened here, and Texas' car-patrol-based policing doesn't see as frequent use of "stop and frisk" tactics as do jurisdictions where officers walk a beat.

The WSJ cited FBI statistics to document "steady declines in disorderly conduct, drunkenness, prostitution and loitering violations," which arguably could be a function of the rise of smart phones, gaming, and internet culture. Much "disorderly conduct" now occurs online, much to the detriment of the political culture, while "loitering" these days may more frequently involve staring at a telephone. Similarly, prostitutes in 2019 are less likely to stand out on the street and more likely to respond to text messages or queries on a website.

IMO, researchers have probably understated significantly the impact of digital culture on (downward) crime trends. Indeed, Grits considers the incapacitative effects of video gaming so significant for young males, in the past I've pondered the idea of issuing gaming consoles to high-risk probationers to reduce recidivism.

Grits has written before about declines in DWI and public drunkenness arrests, which I suspect may also related to the rise of car sharing apps that can easily get drunks off the streets or out of their own cars.

On Twitter, Grits asked a couple of national experts their opinions on sources of declines in misdemeanor arrests. Megan Stevenson, an economist and legal scholar at George Mason Univesity, suggested, "Broken windows policing going out of vogue. Gentrifying cities means poor people no longer live where rich people work. Increased surveillance technology reduces willingness to shoplift/graffiti. Lower blood lead levels in children." She also wondered if the trend may be influenced by "Shifting law enforcement to private security companies who intimidate but don’t arrest?"

And our pal Alexandra Natapoff, now of UC Irvine and author of Punishment Without Crime, a book-length treatment of misdemeanor questions, suggested the trend might also relate to "changes in police arrest quota and promotion policies" or attempts to reduce "Jail costs."

Austin's recent brouhaha over decriminalizing sitting, lying and camping in public spaces makes Grits give extra credence to Professor Stevenson's hypothesis about gentrifying cities removing poor people from the places rich folks live and work. Austin has always had a significant homeless population during the 34 years I've lived here. But as long as they were sleeping in creek beds and behind dumpsters where no one could see them, for most of the city's more affluent population, "out of sight, out of mind," was good enough. As soon as middle and upper class folks began to see homeless people in their daily lives - mostly under highway overpasses and in tents on roadsides - the weeping and gnashing of teeth began (with GOP officials at the local, state and national levels fanning the flames of discontent as vigorously as they could muster).

Grits considers these interesting suggestions, but all of them beg the question, why were misdemeanor arrests going up before 2007? After all, both reported and unreported low-level crime (as judged by the National Crime Victim Survey) has declined dramatically since the 1990s, and we didn't see arrest reductions until relatively recently.

Since we don't know why arrests continued to rise as crime declined, it's equally hard to tell why arrests went down as crime declined even more. For that matter, no one knows for sure why crime has declined in the first place. There are many hypotheses.

In an era when economists have built out a sizable cottage industry developing Bayesian "causal inference" models that supposedly flesh out specific causal relations for crime trends, in reality, nobody really understand the whys and wherefores of even the most basic tendencies of the justice system. Your correspondent has come to believe that running ever-more regression analyses on the same, extremely limited datasets is unlikely to cast more light on the subject.

Regardless of the cause, the footprint of the Texas justice system has reduced dramatically over the last decade, even if prison populations remain stubbornly high. These misdemeanor data provide further evidence of that trend and arguably played a big part in creating that outcome.

For my part, Grits considers the decline in misdemeanor arrests and cases mainly a positive development, not a problem to solve. Others' mileage may vary.

Parole policies the key to substantial prisoner reductions in Texas

The goal of cutting prison populations by 50 percent has been poo pooed by some as a pipe dream, but for Texas it seems conceivable.

As Grits has previously pointed out, the overall footprint of Texas' criminal justice system has declined significantly in recent years, with the proportion of people in prison, jail, on probation and on parole declining by a whopping 46 percent. In 2008, one in 22 Texas adults were in prison, jail, on probation or on parole; by 2018, that had declined to one in 41.

However, the number of people incarcerated in prison has remained stubbornly high, even though TDCJ releases about 45 percent of inmates every year.

Releases declining in tandem with number of new inmates
State officials vociferously deny it, but from the outside it appears as though parole decisions are made based less on individuals' risk to society, but as a means to keep TDCJ full enough to justify existing prisons without becoming overcrowded.

Here's the data. Before 2012, more prisoners entered TDCJ each year than were released, though not by many. In 2012, releases increased for just that one year (see this analysis for why), afterward marching down in tandem with the number of new "receives."

That's why this blog and allies pushed for prison closures as soon as new receives dipped in 2009 and 2010 (the first Texas prisons were closed in 2011). If prisons can't hold more people, the theory went, parole rates would have to keep up with "receives" to keep from violating the longstanding terms of the Ruiz settlement, the dictates of which have dominated TDCJ policy and culture for nearly four decades.

When new receives bumped back up in 2011 and 2012 (see here for an analysis of why), the parole board boosted parole rates significantly to keep numbers low enough to come in under prison capacity.

Even though the parole board doesn't admit its release decisions are dictated by prison capacity, preferring to pretend they're assessing individuals' cases on the merits, it appears to be true on its face. Since 2012, the numbers of new inmates and releases have been so close every year that it's difficult to imagine it's a coincidence.

The potential for large-scale prison population reductions
As of the end of FY 2018, 79,552 Texas prison inmates were eligible to be paroled, out of about 145,000 total incarcerated at that time, or about 55 percent. (Source, p. 17) So most offenders could be released right now if the parole board decided to do so.

The average age of prisoners incarcerated in the Texas Department of Criminal Justice is 35. However, at the end of FY 2018, 9,900 prisoners were more than 60 years old, and another 18,564 were between 51-60. (p. 4) These prisoners are the fastest growing age group at TDCJ, and a big cost driver, particularly because their health costs are 100 percent paid by state government, even for prisoners who would otherwise be eligible for Medicare.

Since being in prison significantly shortens life expectancy, for many of these prisoners, TDCJ must pay for nursing-home like accommodations and eventually, end-of-life costs, as well. This is not just an issue in Texas, but a significant problem nationally. In Texas, however, the cost issue is exacerbated by the recent federal court ruling that vulnerable inmates like the sick and elderly must be housed in units with air conditioning. (Yes, I know, technically, A/C is not required, but how else can the agency keep units below 88 degrees during Texas summers?)

These rising healthcare costs for seniors are a big reason why TDCJ's budget has continued to increase even after eight prison units have been closed: A growing number of the prisoners who remain cost much more to incarcerate than the "average" 35 year old.

How to do it
The governor appoints parole board members, and the Legislature cannot directly force them to increase parole rates. (The 2007 prison reforms successfully encouraged them to decrease revocation rates for technical violations, but those gains have maxxed out.) But they can indirectly do so by changing the criteria on which parole decisions are made.

A good start would be to look to the so-called "objective parole" law passed in Michigan in 2018. That legislation mandated that parole decisions be based on forward looking risk factors instead of unchangeable criteria like "nature of the crime." The Texas Public Policy Foundation endorsed such a measure earlier this year; see my Reasonably Suspicious podcast interview with TPPF's Marc Levin on the topic from July.

Grits has recommended other, additional methods for reducing incarceration levels, but none would have the impact of boosting parole rates.

Texas has successfully reduced the footprint of the justice system more than most people - even most policy makers - understand. But significantly reducing prison populations has been the toughest nut to crack. Even so, given that most Texas prisoners are eligible to be paroled today, it's not impossible to imagine that right sizing the prison system could be accomplished sooner than later.

Initial thoughts on the Amber Guyger verdict

Former Dallas police officer Amber Guyger's murder conviction and ten year prison sentence raises so many conflicted emotions! Here are Grits' initial thoughts on the trial and the outcome:

Abuse of power by police union prez should be punished, forbidden going forward
Maybe what stood out to me most was the role of Dallas police union president Mike Mata. He showed up at the scene of the shooting, sequestered Guyger from police investigators, and gave orders to cops on the scene to turn off cameras and mics in the police car where she was sitting - which they followed! Mata is a police sergeant, not an attorney, and had no legal authority to keep Guyger from being questioned or recorded. His actions corrupted the process from the beginning. Outside of a defendant's attorney, no other third party would be allowed to do this, but Mata misused his sergeant's rank to protect her. He should be disciplined or fired for this abuse of authority, and the department should establish rules to prevent it from happening again.

Racist social media posts by cops not harmless
Guyger's racist social media postings, and those of her colleagues, also deserve more scrutiny. As the Plain View Project revealed earlier this year, this is not a one-off but part of a broader departmental problem that has been tolerated by management and encouraged by a flat-out racist subculture within the agency. Now that an officer engaging in this behavior has been convicted of murdering a black man, we see the issue of racist "personal" opinions of Dallas PD officers quite clearly has policy implications. IMO, this episode shows officers holding such views are a clear and present public-safety threat.

Deescalation training clearly insufficient; Guyger said she never considered it
Just months before the shooting, Guyger had received 8 hours of deescalation training which was mandated in 2017 by the Sandra Bland Act. But Guyger testified using those deescalation tactics never entered her mind. So was her training insufficient? Should it be expanded? Required more frequently? Do departmental policies reflect that training and require officers to use deescalation where possible? Are there professional consequences for failing to deescalate when possible, and if not, why not? DPD and the public should be concerned that its training was so ineffective that a uniformed police officer never even considered it before firing her service weapon at an unarmed man.

So we don't prosecute evidence tampering anymore?
Guyger and her married partner with whom she was having an affair both deleted texts from the night of the murder on their phones, although investigators later recovered them. Why wasn't her partner charged with evidence tampering, as any civilian would have been if they tried to destroy evidence in a murder case? Should a cop who tried to destroy evidence in a murder case even still be on the force?

Flaws in Castle-Doctrine law exposed in case
Some folks on social media blamed the judge for allowing Guyger to use the Castle Doctrine defense. But the judge isn't to blame; Texas legislators are. Most people think the Castle Doctrine means people defending their own home, as in "a man's home is his castle." But Guyger was a home invader entering another person's apartment! So there's a perception among those who haven't dug into the details of the law that there is now some sort of Castle-Doctrine bubble that white cops get to carry around with them and apply wherever they are. That impression is understandable. It sure looks that way from the outside! But in reality, the judge had no choice but to give a jury instruction on the Castle Doctrine. Texas' law says the shooter must only have a "belief" that they're protecting their home, they are not required to factually be protecting their home. So Guyger triggered the defense when she claimed she thought she was entering her own apartment. That's WAY too broad and should be scaled back when the Legislature meets next.

The verdict, and the hug(s)
Grits was not among those who believed a super-long sentence was required in this case, and I was glad Botham Jean's brother forgave Guyger from the stand and even stepped down to hug her. He's modeling excellent, Christian behavior and society would be better off if more victim families embraced forgiveness as a primary value. However, I feel differently about the judge hugging Guyger afterward. The judge didn't initiate it, but the photo of the embrace gave an appearance of special treatment in a situation that already was rife with them. It appears from a distance - obviously I wasn't there for the blow-by-blow - that the judge, an African-American woman, did a good job. But that photo coupled with a below-average murder sentence will be seen to contradict that.

***

There are many more issues coming out of this tragedy that will be debated going forward, these are just first-cut considerations in the immediate aftermath. While civil verdicts are more common in Dallas, a criminal conviction of a police officer is a rare and stunning result. Out of more than 50 officer-involved shootings in Dallas this year, only one officer has been indicted, and it's even more rare for indicted officers to be convicted and sent to prison. So by any measure, the verdict is big news. But Guyger's conviction won't in and of itself change a departmental culture that protects bad cops, tolerates their racist views and online postings, and fails to punish evidence tampering by its officers. That will require local officials to step up. And the public will be watching.

Humpty Dumpty, the Castle Doctrine, and other stories

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

Humpty Dumpty and the Castle Doctrine

The judge in former Dallas police officer Amber Guyger's murder trial for the shooting of Botham Jean gave the jury instructions on the Castle Doctrine defense, despite the fact that Guyger entered Jean's home and shot him, and wasn't defending her "castle." Her lawyers employed this argument as their primary defense (that it wasn't her home was a "mistake of fact," they said) so the judge had no choice but to address it, but Humpty Dumpty would be proud! The claim didn't help Guyger, however. She was convicted, anyway. UPDATE: Guyger was sentenced to ten years.

Death of trailblazing deputy raises difficult, familiar questions
The tragic shooting death of a Harris County Sheriff's deputy - a trail blazing figure who was the first Sikh to work in Harris County law enforcement - raises familiar questions with no satisfying answers. The alleged killer is a severely schizophrenic parolee who had gone off his meds and heard voices telling him to kill people. Is the criminal-justice system the best way to deal with people whose offenses are rooted in severe mental illness? How did this convicted felon and parolee get a firearm? He already was the subject of a warrant for violating his parole, should more resources be allocated to search for high-risk parole violators? His family had told officials he was dangerous and off his meds: Are there "red flag" laws that could have allowed them to act sooner? The circumstances surrounding this awful episode will provide fodder for these and many other debates in coming years. The public dialogue would have been easier, in a sense, if this had turned out to be a hate crime. The issues surrounding mental illness and the politics of gun proliferation are much more complex and difficult to deal with.

Private jail operator keeps screwing up
At the Liberty County Jail, which is operated by the Geo Group, "In the last 60 days, there have been two felony escapes, one of their correctional officers was arrested for stealing from inmates while on duty, and most recently, there are questions surrounding the death of a prisoner who hanged himself while in their custody. Apart from those instances, they have also flunked two jail inspections this year, one on April 22 and the second on June 28," the Houston Chronicle reported. Local officials are considering whether to terminate ties with the private prison contractor.

The economics of high probation fees
Check out a new article from our friend Todd Jermstad, probation director in Bell County, on the history and future of court-imposed fees at Texas probation departments. Especially interesting was his thesis that policymakers should take into account reduced means of Gen X and Millenial defendants, whose economic prospects remain less robust than earlier generations. Grits may delve more deeply into this soon, but for now, here's the link.

Bail litigation roundup
See a write-up from The Appeal of recent bail-litigation news, including from Houston and Galveston. See also related Grits coverage and our discussion of the topic in Just Liberty's most recent Reasonably Suspicious podcast.

Over friggin' pot?
In Hutto, a police officer responding to a call that someone was smoking marijuana beat up a man in his driveway and made false accusations in official documents to justify it. The victim had no marijuana in his possession, and bodycam video proved the cop was lying about the victim pushing the officer before he was attacked. The officer was fired, was indicted in May, and the victim has filed a civil rights suit, reported KXAN-TV.

Homelessness problems and solutions
In the wake of Austin's tendentious debate over homeless policy, I was interested to see this excellent New Republic article on "housing insecurity in the nation's richest cities." When, in the 1990s, my wife and I could rent a dilapidated three-bedroom house in East Austin for $190, homelessness wasn't such a big problem. Now that rents in my neighborhood for similar homes approach $3k per month, it's little wonder more people are on the streets. Meanwhile, Bloomberg News had an informative piece a couple of months back on how Finland all but eliminated people sleeping on the streets by investing in preventive strategies like rent subsidies.

How police misconduct gets covered up by plea bargaining
Here's an excellent analysis from Brooklyn public defender Scott Hechinger of how mandatory minimums and the threat of long sentences help cover up police misconduct that would otherwise come out in court. That's because "victims of police abuse — illegal stops and frisks, car stops and searches, home raids, manufactured charges and excessive force — routinely forgo their constitutional right to challenge police abuse in a pretrial hearing in exchange for plea deals." This is undeniably true. It's only in cases like the episode in Hutto, described above, where victims face no charges that officers can be held accountable through regular court processes.

Financial motive not only reason prosecutors oppose actual-innocence claims
The New York Times published a feature on falsely convicted people who've been exonerated by the evidence but cannot secure an "actual innocence" ruling because prosecutors fear the financial consequences of civil rights lawsuits against local jurisdictions. All of the examples are from other states, but Texas' situation casts additional light on this topic. I was policy director at the Innocence Project of Texas when the Legislature passed the best-in-the-nation compensation package for exonerees in 2009. We hoped to avoid this dynamic by having the state compensate innocent convicts instead of the locals. Indeed, the bill was sold as a form of "tort reform," eliminating local liability for what were seen as systemic flaws causing false convictions. But it turned out, the real, underlying complaints weren't financial. Many prosecutors and some judges on the Court of Criminal Appeals simply don't want to see falsely convicted people compensated, ever, and go to great lengths to oppose actual-innocence claims, despite the fact that locals weren't on the hook. So Grits is skeptical of the article's thesis that the motive behind opposing actual-innocence claims is financial. I think it's more pernicious than that.

Sheriffs and #cjreform
Our pal Jessica Pishko published a New York Times op ed on Sheriff's offices, declaring "The problem of sheriffs is particularly acute in the South and Southwest, where the office has more power and was historically used to prop up white supremacy." She calls for Sheriffs to undertake what amounts to a truth-and-reconciliation process for past wrongs. That sanguine suggestion to me seems unlikely. Texas alone has 254 counties, after all - a few might do that, under the right political circumstances, but most will not. And abolishing the office, as some have called for, doesn't change the fact that someone has to perform those functions. Grits has often thought that sheriffs' jail-management duties should be separated from their responsibilities to patrol unincorporated areas. These are distinct functions involving very different skill sets, and typically those elected to the office only have knowledge of one or the other. Whether Sheriffs should be an elected position is a question for another day.

Deep thinking on sex-offender policies
A recent NY Times piece examined emerging research on people who are sexually attracted to minors, finding that its roots are not genetic, but are "prenatal," and "can be traced to specific periods of development in the womb." And this Marshall Project story looks at evidence-based anti-recidivism programs aimed at people convicted of violent, sexual crimes once their sentence is complete. I found both articles to be thoughtful contributions to the discussion.

Most crime dropping nationally, but look at those rape numbers!
New Uniform Crime Report data is out, and most categories of crime have continued to fall, except rape, which has risen precipitously since 2014. See first-cut analyses from the Brennan Center and the Marshall Project. No one knows for sure what's behind the rise in rape numbers. The feds began using a more expansive definition of sexual assault in 2014, but the numbers increased even using the "legacy" definition. The question arises: Have there actually been more rapes committed over this period, or are we simply now getting a more complete picture of the scope of the problem in the wake of increased reporting thanks to the #MeToo movement? ¿Quien sabe? Regardless, the year-over-year decline in property crimes, murders, robberies, etc., is cause for celebration, while the sex-assault data should contribute to deeper conversations on the question.

'Progressive prosecutors' not all so progressive on bail reform

At the Texas Tribune festival this weekend, Josie Duffy-Rice, president of The Appeal, moderated a panel with three Democratic Texas District Attorneys - John Creuzot of Dallas, Margaret Moore of Travis County, and Mark Gonzalez of Nueces County.

(L-R) Josie Duffy, John Creuzot,
Mark Gonzalez, and Margaret Moore

An audience member asked the panelists whether they favored providing defense attorneys to defendants at "magistration," where judges set bail amounts defendants must pay to get out of jail pending trial.

Gonzalez failed to answer the question directly, conflating magistration with plea bargaining and insisting that his office was more fair than his predecessor.

Moore also talked around the issue, but in essence said she didn't think providing counsel at bail hearings was necessary. Prosecutors don't even attend those hearings in Travis County, she declared, an assertion which Grits found dubious. After all, the county indigent defense plan anticipates prosecutors may "fil[e] an application" with the court at magistration, while indigent defendants may apply for an attorney at that point, but don't get one until later. Moore suggested that a post hoc bail-review hearing was sufficient to protect defendants' liberty interests.

Creuzot was the only DA who said, definitively, "Yes," defense attorneys should be provided at magistration. He blamed Dallas judges who appealed the federal injunction for blocking the move, although at least one judge supports the idea. (The county commissioners court, which would have to come up with money to pay for additional defense counsel, surely also is a barrier to implementing that idea.)

Grits found this discussion dissatisfying, given recent developments in Texas bail-reform litigation.

In Galveston, in particular, a recent federal-court injunction explicitly required the county to provide attorneys at magistration. This was not mentioned.

Harris County eliminated magistration in 85 percent of misdemeanor cases to avoid having to make individualized determinations, and launched a pilot program to provide a public defender at bail hearings for the other 15 percent.

In Dallas, a federal judge said magistrates couldn't rely on a pre-set bail schedule without considering individual circumstances. Articulating those, of course, is a defense attorney's job. The injunction has been appealed, but the judge's order would require these hearings to occur within 48 hours of arrest.

So, if we're reading tea leaves here, in all three jurisdictions, federal judges have said that non-individualized bail hearings are unacceptable and that release decisions must be made promptly.

In that light, claims that it's sufficient to review non-individualized bail decisions later, as DA Moore declared, strike me as optimistic, at best. All the federal court rulings in Texas so far have required more.

Certainly it's insufficient to address the issue during plea bargaining, as Mark Gonzalez maintained! Part of the problem with excessive pretrial detention is that it makes defendants more likely to accept unfavorable plea bargains.

The US constitution forbids "excessive bail," not bail per se, so it's unlikely federal courts will ever "abolish money bail," as most #cjreform advocates would prefer. But it also seems clear to this observer that federal courts will eventually require individualized bail determinations, likely at magistration.

We've now seen three different options emerge from federal courts for how to do that: Provide counsel at magistration, as in Galveston; hold individualized hearings within 48 hours of arrest, as in Dallas; or simply eliminate bail determination hearings for most nonviolent cases, and provide lawyers at magistration for the remaining subset, as Harris County is doing.

No one can tell which of these options will be required writ large across Texas until the 5th Circuit rules in one of these cases. Now that the Harris County suit has settled, it seems likely that Dallas will be the first to reach that stage. Their preliminary injunction came out more than a year ago, while Galveston's only emerged last month.

Regardless, Creuzot was the only DA on the so-called "progressive prosecutor" panel who gave what Grits would consider a "progressive" answer on bail reform. Letting folks sit around in jail because they're too poor to pay just isn't good enough, anymore.

Podcast: Texas bail reform litigation, demagoguery on crime in Houston, and Grits' contribution to new TDCJ Hep C litigation

Here's the September 2019 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted by Scott Henson and Amanda Marzullo. Special thanks to Scott Medlock, who's suing TDCJ over failure to adequately treat Hepatitis C. I didn't realize until he told me the idea from the suit originated from a Grits for Breakfast blog post several years ago! That's exciting. Here's this month's episode:


In this episode:

Top Stories

• Harris and Galveston County bail litigation - 1:40
• HPD Chief Art Acevedo demagogues on bail reform - 10:30
• Interview: Attorney Scott Medlock on TDCJ Hep C lawsuit - 14:45

Fill in the Blank

• TPPF on police union politics - 27:45
• Crime debates in Houston mayor's race - 32:45

The Last Hurrah (37:25)

• DPS stops patrols in Dallas
• Do Dallas police murder indictments signal changing attitudes?
• Oklahoma parole changes a model for Texas?

Find a transcript of this episode below the jump.

The case for risk assessments despite allegations they are racist

Here's an unpopular take that I'll probably regret offering:

Grits finds himself a tad annoyed with well-intentioned liberals crowing from the rooftops that risk assessments in criminal justice fields are "racist," and wishes these debates allowed for more nuance.

While I agree that criminal-justice data skews to overstate risk for black folks, I don't necessarily agree that foregoing data-driven risk assessments achieves better outcomes. Judges making seat-of-the-pants decisions rely on the same discriminatory data, and incarcerate people of all races at greater rates than risk-assessments would dictate.

Let's cut to the chase. Consider a thought experiment in which a jurisdiction is 85% white and 15% black. In this jurisdiction, based on judges' stand-alone decisions, 100 people are being held pretrial, and the proportions by race are 60 white folks and 40 black folks, so there's a significant racial disparity.

Now lets say the risk-assessment algorithm also discriminates because of the use of data from a system embedded with a racist, even white-supremacist ideology, as well as historical disparities in violent crime rates by race.*

For the sake of argument, let's say the risk assessment labels 1 in 3 white people incarcerated as "low risk" and recommends release, but only 1 in 4 black defendants. Now let's assume judges release every inmate labeled "low risk." What would be the result?

Under this scenario, 40 white people would be incarcerated compared to 30 black people. Thus, the percentage of black folks incarcerated would go up, from 40 to 43 percent. So, it's possible to accurately say that use of the risk assessment INCREASES racial disparities.

But which outcome is better from a civil-rights perspective - 40 black folks locked up in jail or 30?

I'm a middle-aged white guy and certainly can't and won't attempt to speak for black people. But my own belief is that the outcome under the risk-assessment model is more tolerable. Others' mileage may vary.

What am I missing here?

CAVEAT: There are many offenses where no risk assessment need be used at all. In the Harris County bail settlement, 85% of misdemeanor defendants will be released without a bail determination hearing of any sort. Where that's not possible, IMO risk assessments are superior to judges making the determination on their own, at least until someone convinces me otherwise.

*Violent crime rates among black folks have been declining dramatically in recent years, falling at greater rates, even, than overall crime declines. But the rates remain higher than other racial categories. According to the 2017 National Crime Victimization Survey, "Based on victims reports, there were about four fifths as many white [violent-crime] offenders as the percentage of whites in the population, [and] about twice as many black offenders as the percentage of blacks in the population." Because most victims of violent crime are attacked by someone of the same race, this also translates into more black victims: "For the year 2015, blacks represented 13 percent of the nation’s population, yet accounted for 51 percent of all homicide victims." This dynamic is a source of some but by no means all of the disparities attributed to risk assessments.

Policing policy, forensic follies, the high cost of treating Hep C in prison, and other stories

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

Lawsuit seeking Hep C treatment could come with BIG pricetag
More than 18,000 Texas prison inmates have been diagnosed with Hepatitis C - almost certainly an undercount since TDCJ does not do comprehensive testing - but only a tiny handful receive treatment. The Houston Chronicle reported on a new federal lawsuit demanding they receive treatment, which could cost up to $63,000 per person. See prior Grits coverage and video of testimony from 2014 regarding Hep C treatment in TDCJ.

Conservative think tank takes on police unions
In a significant development, the conservative Texas Public Policy Foundation published a new report criticizing police unions for undermining police accountability reforms. In Texas, conservative politicians in the 21st century have largely kowtowed to these groups. Maybe the state's leading conservative think tank can convince them that's a bad approach. In related news, in St. Louis, prosecutors voted last December to join the local police union in response to the election of a new, reform-minded DA. This academic article makes the case that "This complete and public union of prosecutorial and police interests represents a collapse not only of prosecutorial ethical standards, but also a very real threat against democratically elected prosecutors who would seek to enact the reforms that their constituents desire."

Deep data dive for Big D and H-Town
The project by the Texas Criminal Justice Coalition and January Advisors to publish "data dashboards" for Harris and Dallas Counties' arrest, dismissal, and conviction information allows for important analyses that have never been possible before from publicly available data. They just published this overview of the project, which includes links to the dashboards and a description of what's there.

Handful of police-officer indictments in Dallas stand out
The Dallas DA's office has indicted four police officers for murder in three years, with two of them convicted. The trial for another, Amber Guyger, begins Monday. Notably, the indictments came under both Republican and Democratic District Attorneys. The Dallas News has a story describing how rare this is at other agencies. Even in Dallas, only one officer was indicted this year out of 50 (!) officer involved shootings taken to grand juries. Despite the rarity of such developments, the head of the local police union was quoted saying the indictments were evidence of anti-police bias.

DPS out of Dallas, with mixed reviews
The Department of Public Safety has ended its deployment in Dallas launched by the governor earlier this year. According to an item from the Houston Chronicle's Austin bureau, "The influx of state troopers drew criticism from some residents and a city councilman, who called for the operation’s end after hearing complaints that enforcement was unfairly targeting people of color, The Dallas Morning News reported. In August, two troopers fatally shot a Dallas man who the agency said pulled a handgun after a traffic stop, the News reported." Despite these criticisms, DPS Col. Steve McCraw declared the operation a success, declaring  "Certainly there's been some that don't appreciate it, usually the ones that are arrested or have relatives arrested, and we understand that." That seems like an odd assertion when one of the most vocal critics is a city council member.

DNA analyst resigned over high-profile error
Grits had missed the news in August that a DNA examiner resigned at the Forensic Science Commission after a report by her employer found that she had testified incorrectly in a high-profile murder case in which a UT student was strangled, declaring the defendants' DNA could be excluded when that was not true. (She worked for DPS at the time she gave the testimony.) Though she told FSC investigators she "misspoke," she did so TEN times. The commission found that her error constituted professional "negligence," but not "misconduct." Whether or not there was any bad intention behind the mistake, it highlights the difficulties and pitfalls of interpreting DNA mixture evidence, which is more subjective and less definitive than one-to-one DNA matching.

Can refined patrol strategies free up more officer time?
A criminologist at UT-Dallas developed an algorithm to help the Carrollton PD refine its patrol strategies so officers waste less time in their vehicles. Notably, the recent staffing study for Dallas PD similarly recommended refining patrol routes to free up officer time spent driving long distances.

Does EMS need tactical teams? Montgomery County thinks so
The Montgomery County Hospital District has created a tactical team to join local police on SWAT raids. One paramedic said he joined the team because "There was more of the excitement appeal."

Alternative to police response for mental health, homelessness, substance abuse
Regular readers know that Austin recently funded a new program to have medical personnel respond to some mental-health calls instead of police. At the same time, the city has been engulfed in a debate over how to confront homelessness. A program out of Oregon called CAHOOTS demonstrates an approach that could address both issues with a non-police response. Medical teams in a van respond to mental health crises and provide services to people suffering from substance abuse or homelessness, leaving law enforcement out of the equation. That's a great idea.

Okies boost parole rates
Parole rates in Oklahoma are up 41 percent from last year, and commutations (which previously almost never happened) are up 1,300 percent, reported the Tulsa World. Texas parole rates remain stagnant in recent years at around 35 percent. Most offenders in Texas prisons are parole-eligible and could be released today if the parole board agreed.

Policing practices parsed in Congress
The US House Judiciary Committee held a four-hour oversight hearing this week on policing practices. Watch it here.

The public's cognitive dissonance over forensic science
A new academic analysis finds that the public is losing faith in the accuracy of forensic science, but still believe forensics over other types of evidence. As evidence of this cognitive dissonance, "Respondents still believe that forensic evidence is a key part of a criminal case with nearly 40% of respondents believing that the absence of forensic evidence is sufficient for a prosecutor to drop the case and that the presence of forensic evidence, even if other forms of evidence suggest that the defendant is not guilty, is enough to convict the defendant." (Emphasis added.)

A new constituency for  pot legalization?
Should convenience-store owners become marijuana legalization proponents? It might boost their sales. A academic analysis published in February found that legalizing recreational pot use resulted in increased junk food sales.

The eugenicist who gave us fingerprint identification
I didn't know that the original creator of fingerprint identification in the 19th century was also the enthusiastic progenitor of the eugenics movement. It doesn't sound like the fingerprint discipline has changed much since he first convinced Scotland Yard to undertake it.

The criminogenic effect of police stops on black and Latino boys
A study published in April found that "the frequency of police stops [of black and Latino teenage boys] predicted more frequent engagement in delinquent behavior 6, 12, and 18 mo later, whereas delinquent behavior did not predict subsequent reports of police stops." In other words, police stopping minority youth was predictive of future delinquency, but self-reported engagement in delinquency was NOT predictive of police stops! The implication is that proactive policing strategies like stop-and-frisk may actually cause juvenile crime instead of deterring it.

Initial thoughts on the Great Austin Homelessness Debate

Yesterday, more than 150 people spoke to the Austin City Council on proposed revisions to their homeless decriminalization ordinance passed in June. (See initial MSM coverage here and here.) They won't finally vote until tomorrow, but here are a few initial thoughts:

• Despite the local media clambering onto the bandwagon of NIMBY opposition and the local GOP calling for re-criminalization, Austinites supporting decriminalization made up the majority of speakers. Those voices hadn't been portrayed much in local press coverage, but there were quite a few more of them than critics.

• Numerous local organizations - almost none of whose positions had been covered in the intensive press buildup to the hearing - formally supported the city council's decrim position. Here's a list Just Liberty compiled of those groups and presented to the council.

• Most of the opposition to the June decrim ordinance came from white folks over 50. With few exceptions, they pretty much all made the same argument: we don't want to see homeless people or their stuff in public, don't want to pay for services for them, and we fear for the safety of our women-folk. A few critics did say they supported work by charity organizations like Mobile Loaves and Fishes, but ignored that the groups they praised disagree with their position on the decrim ordinance. 

• About 30-40 decrim opponents arrived wearing blue shirts that said "Take Back Austin." A representative of that organization declared that they'd formed three weeks ago and already had 3,000 members. Apparently, this bunch want to take Austin back from the city's majority, since decrim supporters outnumbered critics and only about 1% of their alleged membership showed up.

• Notably, despite the local GOP's ill-advised entry into the fray, Take Back Austin doesn't even represent the views of all conservatives. I was there  recently when a representative from that group came and pitched their petition at a meeting of Texans for Accountable Government, a liberty-minded conservative activist group. His comments alienated most of the room and he left without an endorsement.

• Many decrim critics were incredibly angry and rude - especially for the first hour or so, people would holler out and interrupt speakers from the other side, or talk loudly among themselves when someone was speaking with whom they disagreed. I thought their behavior discredited them nearly as much as their lack of sound arguments. The mayor demonstrated extreme patience in not kicking out the worst offenders.

• A UT-Austin group called SafeHorns has been one of the most oft-quoted critics of the city council during this debate, claiming to speak for UT students. But this week Student Government at UT-Austin voted to support the city council's decrim measures. And nearly all of the young people who spoke were against rolling back the council's June ordinance. So it's now clear those few voices given an out-sized platform by local media don't necessarily speak for the whole student body.

• By contrast, decrim supporters included folks across the age spectrum, but skewed younger, much more diverse, were more solutions-oriented, and endorsed a greater variety of more nuanced perspectives.

• Chas Moore from the Austin Justice Coalition read city council the riot act, emphasizing that only seven percent of Austin's population is black but around 40% of homeless people are. He suggested (and IMO it's almost certainly true) that that's a big, underlying cause of the opposition.

• Grits also appreciated that several white women addressed the "protect our women" trope, describing how that meme had been used to justify racial discrimination and even lynchings throughout American history. I was grateful someone confronted that head on, it was a necessary antidote to some of the Jim-Crow-esque rhetoric being casually thrown around.

• The role of Class C misdemeanor enforcement came up a lot. When homeless folks were ticketed for sitting or lying under the old regime, they couldn't pay so the tickets would turn into warrants. Then later, they'd be arrested and, when they got out of jail, all their belongings had been stolen or confiscated by police. A woman described the agony of losing every family photo she owned that way. (That was the only time I genuinely teared up. My family photos are among my most precious belongings.)

• Testimony from homeless people was generally excellent. A consistent story from the pre-decrim days involved being rousted while sleeping, told to move from where they were, but having no place to go. People described being robbed or having belongings confiscated because they couldn't leave their stuff even to apply for a job. Others emphasized the inability to find a place to shower, to find transportation even to apply for services. A theme from decrim supporters that resonated throughout the day was that, if council wanted to know what homeless people need to improve their lot, somebody should ask them instead of just listening to the angriest voices in the room.

• One of the few things nearly everyone agreed on was that the rising cost of living in Austin was driving much of the homelessness problem. Republicans in the room wanted to attribute that to taxes, but in truth, most of it is driven by the market. Californians sell their Bay-Area two-bedroom for $1.2 million then show up in Austin and drive up local prices. (E.g., I live in a house that my wife and I rented for $190 a month in the 1990s, before buying it from the landlord in '96 for $40k at the nadir of the Savings and Loan bust. Today, it's on the tax rolls for more than $450k. Sure, our taxes are higher, but that's not the main thing making Austin un-affordable.) Calls for emergency rent subsidies and grant subsidies to promote home ownership were some of the more interesting suggestions that cropped up on this score.

As a white homeowner over 50 who's now lived in Austin for 34 years, Grits couldn't really understand the over-the-top animosity coming from others who share my subject position. I spend a fair amount of time downtown and there are homeless folks in my neighborhood. I simply don't see the wave of new problems described by the loud, angry "Take Back" crowd throughout the day. I see a few more homeless people now - mostly camping under overpasses more openly - but I haven't witnessed any new issues that public restrooms, showers and trash-pickup services wouldn't resolve.

Moreover, most of the things critics say drive their concerns with homeless people - trespassing on private property, physically attacking or intimidating people, urinating or masturbating in public - are still illegal. Nothing about the ordinance legalizing sitting and lying down in public changed that, so many of the complaints frankly seem disingenuous.

Comments from councilmembers seemed to indicate that there are sufficient votes to resist the more draconian rollbacks of the decrim ordinance being suggested, but there's no way to tell for sure until the City Council votes tomorrow. Here's hoping they stick to their guns and do the right thing.

UPDATE: For now, the city council rejected reinstatement of the no-sit/no-lie ordinance. Four backed expanding the ordinance even further than it went before the law was changed in June. Five including the mayor endorsed less expansive changes that would reinstate it only around homeless shelters, aiming to address people congregating outside the downtown homeless shelter and a new one being built in South Austin. And two - who in the end, won the day - said the council was being reactive and should give the city's new homeless coordinator who was just hired time to assess the situation and make a recommendation. The council agreed to hold a work session in October to discuss matters further. (Ugh. :/)

The Art of Deflection: HPD chief shows how to blame judges for policing failures

Police chiefs in Harris County continue to attack bail reform - most recently Houston police chief Art Acevedo - but the examples given never seem to bear out their complaints. Acevedo yesterday went on local TV to blame judges for releasing a defendant who later ended up shooting a police officer with his own gun after a struggle.

His comments came at the scene of an unrelated police shooting near a school where the suspect was killed, and the chief attempted to conflate the cases. In the Fox26 news story, he succeeded in conflating them; the article was so poorly constructed, I had to go to other sources to figure out what the hell he was talking about. Reported Fox26:

Acevedo threatened to call out judges who grant bond to violent offenders while speaking at the scene of an officer involved shooting on South Gessner Monday. The shooting happened as one of his officer [sic] is recovering from being shot Thursday by a suspect who was out on bond. 

Court records show that suspect—Brandon Bell, 17—paid zero dollars to bond out of jail two weeks ago after allegedly carjacking a woman at gunpoint. 

"If you lived in a high crime area and you knew that these judges were gonna let a violent criminal go in one door and within a matter of hours or a day or two get out on a low bond, do you want to testify against them?" asked Acevedo.

Brandon Bell was NOT the shooter at the school where Acevedo gave the comments, but you really can't tell from the story until the final line, when the reporter finally named the deceased.

It turns out, however, there's more to Mr. Bell's story than the chief is letting on: "In Brandon Bell's case, records show he bonded out on a misdemeanor trespassing charge September 3, before investigators could collect enough evidence to charge him with felony aggravated robbery with a deadly weapon."

So think about what's being said: Acevedo crows to the media that Bell was let out on a personal bond for carjacking, and the reporter dutifully repeats the claim. But she already knows that's not exactly true, and buried the counterfactual at the bottom of the story. His officers hadn't filed the carjacking charges when he was released, only misdemeanor trespassing!

How long should courts hold misdemeanor defendants to let police investigate them for crimes with which they haven't been charged? On what basis should they have detained the 17-year old, who in most other states would have been charged as a juvenile?

In America, police don't get to arrest people and hold them in jail when they are unable to supply probable cause the person committed an offense. And if they'd presented evidence against Mr. Bell in the carjacking incident, he'd have been charged with a felony and remained in jail. The failure to do so is the only reason he wasn't held longer.

The judge who bonded the guy out told the reporter:

Judge Darrell Jordan who approved Bell's bond told Fox 26 he was just following Texas law. 

"If there is a trespassing case or something like that—then that person will be released on a general order bond," said Jordan. "The bond amount will say $100, but they pay nothing."

Even if Bell had been required to pay the $100, that's not going to keep anybody off the streets for long. The real issue is Houston PD and the DA's office hadn't charged him with anything more serious, even though he'd allegedly committed a carjacking. Two weeks later, the kid shot a police officer.

This is pure deflection, blaming judges for Houston PD's own failures.

MORE: For those interested in more detail, Don Hooper of the Houston Conservative Forum posted the police affidavit on Twitter alleging Mr. Bell engaged in carjacking, and proceeded to argue the details of the episode (contentiously) with a cop. The complainant recognized the carjacker at the scene, and a robbery detective conducted a photo array on the same day in which she identified him again. But police didn't file the affidavit alleging the carjacking charge until Sept. 9th, after Bell had already been released. How is this the judge's fault, again?

Police shootings, jailhouse snitches, and debunking anti-bail-reform arguments

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

Federal judge debunks anti-bail reform arguments from Harris DA
Federal District Judge Lee Rosenthal, a George W. Bush appointee, approved the bail-reform settlement in Harris County over objections from District Attorney Kim Ogg. See coverage from The Appeal  and Houston Public Media. The judge's order address the DA's objections specifically, and IMO decisively.

Bail-reform injunction issued in Galveston
Another federal judge issued an injunction against Galveston County requiring reform of their bail system. The judge would  require the county to provide counsel for indigent felony defendants at their initial bail hearing. By contrast, the Harris County case only involved misdemeanor cases. See the Texas Tribune's coverage.

Speaking for the defense: The only time prosecution theories are excluded from crime stories is when police officers are accused
I have never seen a major newspaper run an article promoting ONLY defense-attorney theories prior to the trial of a murder defendant, except when the defendant is a police officer. Then, we get stories like this one from the Dallas Morning News explaining why a jury should acquit former Dallas police officer Amber Guyger for killing Botham Jean in his home.

'Excited delirium' is still not a real thing
Speaking of Big D cops, Dallas DA John Creuzot told an audience last week that his office chose not to indict the cops who killed Tony Timpa because one of them patted him on the back and tried to comfort him after kneeing him in the back and mocking him as he lay dying. Creuzot said Timpa died of "excited delirium," which he apparently thinks is a real condition that can be treated with Xanax. But regular readers know that's a fake diagnosis that is only ever assigned to people who die in police custody. The Washington Post has reported that the diagnosis appears in no medical textbooks outside of training materials for medical examiners.

Gap in TX jailhouse snitch reporting system cited
Texas' 2017 statute requiring Texas prosecutors to keep records on their use of jailhouse snitches and report snitch's history to the defense made an appearance in this Washington Post story on jailhouse informants. However, the article noted, "Although Texas and other states are now tracking the use of informants, county prosecutors are keeping the records and only Connecticut will be keeping a statewide system, Innocence Project lawyers said. One problem, they said, is prosecutors in one county may not know about an informant’s testimony in other counties." In addition to the 2017 statute, Texas in 2009 required corroboration to secure a conviction based on jailhouse informant testimony, and in 201 the Lege required corroboration for informants in drug cases.

Reminder: Lying snitches need prosecutor collaborators to do harm
Speaking of informants, prosecutors failing to disclose a deal with a snitch in George Powell's prosecution for armed robbery - along with flawed and unproven forensic evidence - contributed to his conviction being recently overturned. The informant lied on the stand and prosecutors failed to correct the misstatements, the courts found. Now, the Bell County DA wants to retry Powell, and defense attorneys want his office removed from the case because of the alleged misconduct.

Lessons on policing, poverty, and racial discrimination
This analysis of policing, poverty and racial discrimination at the Tulsa (OK) PD includes lessons applicable in virtually every American police department.

Local press calls out Houston mayoral candidates' false statements on crime

Challengers in local political races love to engage in demagoguery about crime and try to blame the incumbents. That becomes a tad more difficult when crime is actually low. But usually they can still get away with it because the local media thinks their job is to "quote both sides" (in this case, the two sides being "lies" and "reality") and will put out their message even when it's false.

So we must give credit where it's due to St. John Barned Smith and Jasper Scherer of the Houston Chronicle for their article on crime debates in the Houston mayor's race. Drawing on lessons national journalists have had to learn in the age of Donald Trump, they wrote a piece that calls out exaggerations and falsehoods about crime in a way that's incredibly rare for local reporters.

Challengers to Mayor Sylvester Turner attempted to mislead the public about crime in the wake of his recent State of the City speech.

“I know what’s going on in this city,” [millionaire attorney Tony] Buzbee said. “Don’t tell me crime is going down when everybody across the country knows that Houston is one of the most dangerous cities in the United States.” 

Bill King, another prominent mayoral contender, has decried a “growing randomness and violence to crime that alarms people.”

The next paragraph, though, let's us know that these reporters have learned a lesson or two about lying politicians that makes your correspondent a bit more sanguine about the profession:

While experts say such arguments aren’t unusual for political challengers, the numbers largely say otherwise. Like the rest of the country, crime in Houston has plummeted over the last 30 years, as has residents’ fear of crime being the city’s most pressing problem. FBI data show that most categories of crime in Houston have fallen or remained stagnant during Turner’s term, which began in January 2016. Criminologists also scoff at the claim that Houston is among the country’s most dangerous cities.

During Turner's term, in fact, "From 2015 to 2018, murders dropped and robberies fell; burglaries decreased; thefts fell; and fewer vehicles were stolen. The exceptions were aggravated assaults and rapes, which rose in 2017 before declining again in 2018." On Buzbee's campaign website, by contrast, he insists without a shred of evidence, "All types of crime are on the rise." That's patently false.

Indeed, your correspondent was quoted in the story declaring, "“We are at the bottom of a 30-year decline, more or less, in the crime rate,” and insisting, “Houston is safer than has been for a really long time, honestly, is the truth of it."

Buzbee says that Houston has more crime than 95% of American cities, which is true, but misleading. Heck, since Houston is the third largest city and there are nearly 20,000 municipalities in the United States, I'd have said more than 99%. But that's a meaningless number. Comparing crime totals in Houston to those in Dalhart or Raymondville is a silly and pointless exercise. The article quoted national experts to give context to the claim:

“When we talk about the murder capitals of the country, the violent crime capitals of the country, Houston is not one of the cities people put on that list,” said Jeff Asher, a New Orleans-based criminologist. “At least anyone familiar with the data.” 

Ames Grawert, senior counsel for the Justice Program at the Brennan Center for Justice in New York, said it is misleading to compare the crime rate of a city with 2.3 million people to those of small towns, which frequently have much lower crime rates. 

A more accurate measure, he said, would be to look at other large cities across the country. 

Among the nation’s 30 largest cities, Houston’s murder rate “is thoroughly middle of the road,” Grawert said. “I don’t see Houston as being one of the more ‘violent’ places in the country.”

Buzbee insisted that, if he were mayor, Houston would add 2,000 police officers to the force (currently with a little more than 5,000 officers), over his first four years. Mayor Turner, by contrast, has suggested adding 500.

Buzbee's suggestion is simply ridiculous (and thus, demagogic) to anyone who understands municipal budgets. The Legislature just capped spending increases by municipalities, so adding that many officers would require eliminating spending on things like roads and flood control. There's no math that makes the suggestion work, it's just silly on its face.

By contrast, Turner's other opponent had a more legitimate criticism:

King contended HPD’s increase in sworn officers under Turner is “window dressing,” because the officers have to perform the functions of the declining civilian employees. Soon after taking office, Turner vowed he would never lay off any police officers.

King is right about the civilian staffing. I like Mayor Turner and was a fan of his when he was in the Legislature. But even then, he has always been in the pocket of the police unions and was never comfortable bucking them. King is right that the decision to lay off civilian staff instead of cops was short-sighted. Having more expensive, uniformed officers provide clerical and support functions is wasteful, bad management.

That's why, when Dallas hired management consultants to tell them how many more officers to hire, they couldn't get a hard number. How many cops you have is less important than what those cops do. The consultants in Dallas told the city council, much to their consternation, that they needed to hire more civilians and reorganize officer duties before considering hiring more cops. If the same analysis were performed for Houston, I believe they'd find that's the case there, too. 

In Austin, where Houston chief Art Acevedo was posted before becoming chief in H-Town, civilian duties were widely neglected in favor of hiring more officers. Crises at the crime lab and failures at sex-assault victim services cropped up nearly as soon as he left, and virtually every other civilian function in the agency (except the Public Information Office - he does value PR) was starved and short-shrifted during his tenure.

That said, even with this debunking, the strategy of lying about crime could still work. Survey after survey shows the public thinks crime is rising, even when it's precipitously falling. That's slowly starting to change, but it's something a demagogue can manipulate. Candidate King touched on what I think is the reason public opinion doesn't track with reality: “When you actually see a crime being committed on your computer screen, especially if it involves violence, it obviously (has) a much greater impact than reading dry crime statistics.”

Bingo! It may be hard for anyone under 50 or so to imagine, but thirty years ago, local news was local and crimes reported in the newspaper or on nightly TV news happened in the town a journalist covered. Today, crimes committed anywhere and everywhere on the globe show up in our news feeds in seemingly endless waves, giving an impression of lawlessness and danger that's just not borne out by data.

That's what Buzbee and King are counting on: that the public's ignorance and gullibility will trump reality. And it could work. As H.L. Mencken long ago advised, no one ever went broke underestimating the intelligence of the American public. But when the media do their job well, as for once happened here, it makes capitalizing on public ignorance a lot more difficult.

Needless shooting shows why cops shouldn't be first response to mental health calls

In the wake of the City of Austin funding an alternative approach to mental-health first response featuring mental-health clinicians taking the lead instead of cops, video has emerged from Corpus Christi of a police officer gunning down a mentally ill man wielding a metal pipe at point blank range. The victim didn't die, thankfully, but this was unnecessary:

Austin funds alternatives to police for mental-health first response

The Austin City Council yesterday approved $1.75 million in its next budget to create a new system for responding to 911 calls involving potential suicides and other mental-health-related scenarios, thanks to a measure promoted by Just Liberty and the Austin Justice Coalition.

The money would pay for 6.5 new positions to put mental-health clinicians on the front lines of 911 calls related to mental health crises along with seven new Community Health Paramedics at EMS.

As a result, according to a "policy direction" memo accompanying the funding, "The Council expects more calls to be appropriately directed to EMS and fewer to APD based on a better clinical triage in the 911 center." In some cases, that will mean mental health clinicians communicating with folks by video-call; in others, clinicians will will show up in person. And instead of uniformed police doing followup visits to the homes of the mentally ill to check on their medical progress (yes, that is what Austin has been doing,) trained Community Health Paramedics will do followup visits to help people address their needs.

In 2018, according to a report from the Meadows Foundation, Austin PD responded to 11,124 mental-health-related calls, most of which should now get clinicians and/or EMS personnel responding instead. This will reduce unnecessary incarceration, involuntary hospitalization and use-of-force incidents - a huge boon to the thousands of sick people involved. Giving a health care call a health response will also free up police officer time.

Austin's reform has been a long time coming. An audit released last year found Austin police shoot people on mental health calls more than in other large US cities. (Indeed, Austin's most recent high profile police shooting involved someone in mental health crisis.) And letters written by the now-disbanded Civilian Oversight Panel revealed its frustration at harmful police policies with respect to mental-health calls.

After two, full years of discussion and debate, advocates came to the city council this budget cycle with a well-developed proposal, passionate testimony from people harmed by the city's 911 system, and support from a wide range of groups. That convinced the Mayor to promise earlier this summer that needed funding would be included in the budget. Yesterday, the Council voted to include all the requested funds.

Protocols have yet to be developed, much less implemented, so it's too early to say for sure, but advocates and the City Council believe this measure should result in police responding to thousands fewer calls. When Dallas initiated reforms to its system for responding to mental health calls, the city saw, in first seven months, teams "addressed 709 mental health calls with only 21 cases (3%) ending in an arrest." If Austin can achieve such rates in a citywide program, that would amount to a sea change.

The city council included a list of performance measures and reporting requirements along with the funding, so we should have data coming out beginning next year to tell us whether we are meeting a health care emergency with a health care response.

Harris DA sanctioned for Brady/Michael-Morton Act violations

In Harris County, reported the Houston Chronicle's Keri Blakinger, Judge Andrew Wright issued a monetary sanction of $500 on the Harris County DA's office for failing to hand over evidence to the defense under Brady v. Maryland/the Michael Morton Act.

The issue arose because the DA's office did not hand over evidence of sustained misconduct against an arresting officer in a DWI case until the eve of trial, many months after it was in their possession and the judge ordered them to turn it over. Reported Blakinger:

“The Court finds that the State has engaged in bad faith litigation tactics,” Wright wrote in an one-page order signed Aug. 23. “The Court further finds that this is a regular and pervasive course of conduct and that sanctions are necessary to deter future bad faith conduct.”

The DA's office claims the judge has no such authority, but Judge Mike Schneider was quoted in the story saying they have ample authority to apply sanction; he only questioned whether the one-page order was broad enough.

The District Attorney's office, however, claimed the only thing the judge could do was keep giving prosecutors ever-more time to comply: “The remedy for late disclosures is simple — more time,” DA spokesman Dane Schiller told the Chronicle.

The DA says they shouldn't have to turn over such information unless there's a protective order barring public disclosure of officer misconduct. But the officer was from the LaPorte PD, which isn't subject to the confidentiality provisions around personnel files in the state civil service code. That means the records under discussion are public under the Texas Public Information Act. 

Announcing you won't release public records unless a court makes them secret seems a tad disingenuous to this writer. Attorney Jordan Lewis bore down on that point, again, from Blakinger:

“They’re only asking for protective orders when they’re handing over police disciplinary files - so they’re asking for special treatment for police officers,” he said. “This is the same office that daily stands in front of a courtroom and repeats all of the bad unproven things that cops say about ordinary citizens.” 

In addition to the $500 sanction, Wright tossed all testimony from the former officer and banned any reference to him. 

Afterward, prosecutors moved to dismiss the case.

I have no idea who's right about the legality of monetary sanctions in such a situation, but this behavior has gone on for a long time and other sanctions haven't seemed to change it. By contrast, clearly the $500 fine got the DA's office's attention! 

TDCJ 'behaved dishonorably' in prison-heat litigation, says federal judge

A federal judge declared that Texas Department of Criminal Justice officials had "behaved dishonorably" by allegedly providing the court false information about broken air conditioners and heat levels inside Texas prisons, the Associated Press reported over the weekend. In this exchange, Judge Keith Ellison appeared to contemplate giving TDCJ officials a taste of their own medicine:

"Shouldn't we have as a sanction, prison officials in the cells dealing with the same temperatures as the prisoners?" Ellison asked Leah O'Leary, a lawyer with the Texas Attorney General's Office, which represented the state's prison system. 

O'Leary disagreed with Ellison's idea and said the state was working to fix the problems.
"You have our attention," said O'Leary, who spoke at the hearing by phone. 

"I'm afraid I don't," Ellison replied. 

Ellison delayed making a ruling on possible sanctions until he heard from officials, including prison wardens, at a hearing on Tuesday.

Further, "Ellison said while the settlement only covers prisoners from the Pack Unit, he believes the Texas prison system should air condition all of its units."

Grits has maintained for years that this is an issue only the federal courts can address: Without a sea change in priorities at the Texas Legislature, I can't see a path toward cooling Texas prison units through the political arena. A federal court would have to make them do it. 

If and when that ever happens, it will put significant economic pressure on state government to further reduce incarceration levels.

By the same token, Judge Ellison sounds like he's losing patience with TDCJ, and every summer, the situation becomes more dire. When a federal judge openly declares public officials have "behaved dishonorably," it's hard to imagine his next ruling is going to put smiles on their faces.

MORE: See Texas Tribune coverage.

UPDATE: The agency has now admitted it violated the settlement agreement. Also, "the prison agency has identified 13,000 inmates in the prison system that are heat vulnerable and it has already put 8,000 of them in air-conditioned beds. The remaining 5,000 will be placed in air-conditioned beds in 12 to 24 months."

Decrying one-sided Statesman stenography on criminal justice (again)

Regular readers know Grits has complained for several years about the unremittingly poor quality of journalism on #cjreform issues in Austin, particularly from the Austin Statesman. A great example of their one-sided coverage - basically functioning as stenographer/mouthpiece for local law enforcement interests and excluding other voices - may be found in Mark Wilson's coverage of a proposal for Austin PD to pay for new equipment to test THC levels in marijuana.

This is necessary, of course, because the Legislature legalized "hemp," which is from the same plant as marijuana, and the distinguishing feature under the law is THC levels. Around the state, prosecutors have begun dismissing cases because they can't prove that element of the crime. But Austin PD wants those cases prosecuted, despite the lack of any real public-safety motivation for doing so.

The Statesman coverage quotes only law enforcement sources and gives no air time to the actual debate that took place in the hearing on the topic.

By contrast, check out a report from the Austin Chronicle by Kevin Curtin. From that coverage you actually get a sense of what went on in the meeting. Critics of the police position were quoted, as were questions from the dais by council members that law enforcement had trouble answering. He also included an utterly ridiculous declaration from Assistant police chief Troy Gay that failure to arrest pot smokers would encourage murders, home invasions and armed robberies.

The public deserves to know he said that, so we can appropriately mock it. It's asinine, ass-i-ten, ass-eleven ...

How can the citizenry be informed enough to engage in effective oversight of elected officials if public debates are misrepresented in such a one-side way? When the paper of record only quotes cops and prosecutors, that's an awfully biased lens through which one's readers must somehow interpret the world. And really, in the end, they can't. It's a big reason why #cjreform is so difficult: Reform voices can barely get in the public conversation.

I've been critical of both the Statesman and Chronicle's coverage in recent years. Since Jordan Smith left the Chronicle, most local coverage of criminal-justice topics has amounted to stenography for the cops, not journalism. So Curtin's piece was a welcome antidote. He didn't take the side of reformers, but neither did he go out of his way to exclude their voices from his coverage. That's really all I'm looking for.

Ending red-light cameras freed up police time in Austin

When the Texas Legislature eliminated tickets based on red-light cameras earlier this year, they freed up a great deal of time among officers at Austin PD who evaluated the photos. Here's how the process worked before Austin shut its cameras down in June in response to the new legislation:

Once cameras are installed, videos of potential violations are submitted to the Police Department for review. The Police Department determines if a violation has occurred and, if so, a notice is sent to the registered owner of the vehicle and the case is filed in Municipal Court. Municipal Court is responsible for the due process and administration of the cases filed.

In 2018, according to City of Austin performance measures, APD reviewed 36,116 images taken by red-light cameras, but only filed cases 35.56 percent of the time, rejecting nearly 2/3 of the cases.

In 2017, only 12.8 percent of images reviewed by APD resulted in cases being filed.

While considering the department's latest request for more officers, City Council should ask Chief Brian Manley how much staff time (civilian and sworn) was spent vetting photos to separate the crap from potentially real violations. Police time spent evaluating tens of thousands of images was a hidden cost, and now those officers can focus on other duties.

Along with reductions in Class-C-misdemeanor and pot arrests, this deleted duty enhances the city's ability to reorganize existing work to meet higher priority public-safety goals. That's a smarter approach than adding new positions and should be part of the staffing debate.

License center lines to get lenghier, the case for medical-led mental-health first response, and other stories

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

License renewals from abolished driver surcharges may exacerbate lines at DPS license centers

Line outside DPS license center on North Lamar
in Austin ~7:30 a.m. Friday morning

It's going to be a rough fall at the DPS license centers. The Texas Legislature gave them $200 million to staff up at some of its biggest facilities, but those new workers won't come online for several months. In the meantime, about one million people with suspended licenses on Monday will have had all their Driver Responsibility surcharges wiped clean and can finally renew their driver's licenses, likely significantly adding to lines.

Sheriff shot up wrong vehicle
Somebody took a shot at a state trooper in Kimble County, and he called it in. The sheriff heard the call, set up on the side of the highway with an assault rifle, and shot up a passing pickup in response, wounding the driver. It was the wrong vehicle; the trooper had called in a "gray" truck and the pickup the sheriff shot up was white. Good piece from Eric Dexheimer with the details.

The case for medical-led mental-health first response
Here's an excellent case study out of Austin showing why cops shouldn't spearhead first response to most mental health calls. The Austin City Council is presently considering whether to shift to a medical-led response in most instances, following the lead of a Dallas PD pilot program.

'Cooking them to death'
The Marshall Project and the Weather Channel teamed up to report on the effects of excessive heat in Texas prisons.

Coming soon: New Travis County public defender office
Great news: The Texas Indigent Defense Commission approved grant funding for a new public-defender office in Travis County.

'Arrest, release, repeat'
The Prison Policy Institute came out with a new analysis discussing "How police and jails are misused to respond to social problems."

Feds failing at collecting police use-of-force data
Since 1994, the Bureau of Justice Statistics has been charged with gathering data on police use of force. But most agencies' data is garbage and most of the information is suspect or unusable, reported Kenny Jacoby of Gatehouse News.