Trump offers to ruin career of Texas senator over #assetforfeiture

This blog attempts where possible to avoid national politics, culture war debates, and certainly President Donald Trump. But the president injected himself into my world this morning when a Rockwall County Sheriff was visiting the White House and complained of a state senator who favored requiring a criminal conviction before the government could seize someone's assets. Trump asked for the senator's name, declaring "I want to hear his name. We'll destroy his career."

The bill under discussion was Sen. Konni Burton's SB 380, which would follow similar legislation in other states, most recently New Mexico, to restrict asset forfeiture to instances where a crime was committed. But the Sheriff said "him," and plenty of other legislators support the idea. So no one knows for sure whom was the senator to which the Sheriff was referring. Noted the Dallas News, "Several other senators have also supported this change in the past, including two civil-libertarian Republicans: Bob Hall, whose district includes Rockwall County and Don Huffines of Dallas." All of these are Texas Tea Party stalwarts. None of them, IMO, become vulnerable because Donald Trump criticized them.

Meanwhile, conservative groups like the Texas Public Policy Foundation, the Heritage Foundation, the Institute for Justice, and others have been pushing forfeiture reform hard for the last few years. So this is an area where Trumpian authoritarianism finds itself at odds with traditional, property-rights rooted conservatism and small-government distrust of state power.  There are dozens such fracture points emerging where Trumpism  diverges from traditional conservatism, so this issue arises as part of a larger debate: Will there continue to be a place for small-government conservatism in the Trumpian era? D.C. Republicans probably cannot resist his Big-Government siren song. But here in Texas, perhaps those values are a little more deeply rooted. Burton's SB 380 would be a good opportunity to express them.

MORE: A tale of three reform approaches on asset forfeiture.

Unfunded mandates and indigent defense

On Thursday, the Senate Finance Committee will consider a budget request from the Texas Indigent Defense Commission to move toward fully funding indigent defense at the state level, portraying the proposal as "property tax relief." The Texas Association of Counties is mounting a full-court press in support of a TIDC plan to increase state funding of indigent defense from 12 percent to 50 percent in the next biennium, a tough sell in a tight budget environment where legislators face a multi-billion dollar shortfall.

Grits remains unconvinced that full state funding of indigent  defense is a good idea, even if money were available in the budget, though I've written before that I wouldn't mind some increase in the state amount. But IMO the debate has been misframed as an "unfunded mandate" from the state to counties in a way that ignores much more significant unfunded mandates in the other direction.

The most important unfunded mandate in the criminal-justice system comes from local government decision makers - especially prosecutors and judges - making choices about imprisonment at TDCJ for which state government must pay 100 percent of the costs. So there's a political incentive for locals to demagogue as "tough on crime" and maximize use of prison because they aren't accountable for the expense of incarceration. And many of them, particularly in rural jurisdictions, gleefully succumb to that incentive.

Indigent defense is one of the few areas where counties incur additional expense when they choose to over-use the justice system. Fordham law prof John Pfaff has documented how, beginning in the 1990s, prosecutors dramatically increased the proportion of cases they pursue. From 1994 to 2008, "the probability that a district attorney files a felony charge against an arrestee goes from about 1 in 3, to 2 in 3," and the trend holds for Texas. Local decisions to maximize incarceration for the most part came with few economic consequences for county officials except for jail and indigent defense costs.

So making counties pay for indigent defense ensures they still have some skin in the game when it comes to mass incarceration. I agree indigent defense must be better funded. But Grits isn't sure it's a good idea to eliminate the last vestiges of economic accountability for counties when it comes to local decision making on criminal justice.

Incentivize probation to punish offenders in community

Grits wanted to highlight a recent report from our pals at the Texas Public Policy Foundation's Center for Effective Justice. Via Greg Glod, see an analysis of Texas' probation system and a recommendation for the Legislature to fund a program created in 2011 (which incidentally was Texas' last budget crunch) to use grant incentives to encourage probation departments to stop revoking so many offenders on technical violations and punish more offenders in the community instead of with maximally expensive prison sentences. In return, they'd keep 35 percent of the savings if they achieve performance goals. Unfortunately, wrote Glod:

The amount estimated for the most recent budget, and every budget since [SB 1055's] passage has been $0. It appears that not enough money in excess has been returned for the bill to be implemented. However, the structure of SB 1055 requires the commitment reduction plan to be submitted “no later than the 60th day after the date on which the time for gubernatorial action on the state budget has expired under Section 14, Article IV, Texas Constitution.” This might be too rigid of a timeframe to determine whether funding is available, and if it is, enough time to get a commitment reduction plan in place.  

To provide more flexibility and feasibility, current language from SB 1055 should be changed to allow CJAD and each local jurisdiction to reach agreement on how much each local jurisdiction needs for upfront funding, as well as for performance-based funding, at a later date than what the code today requires. 

The Texas Legislature should authorize this funding because it is a no-lose situation for the state and the counties. If the counties reach their goals, they will receive savings via the reduction in commitments. If they do not, the counties are required by statute to reimburse the amount they did not save but intended to save.

TPPF also recommended reviving vetoed legislation from 2007 to incentivize probation departments to reduce technical revocations. Former Republican House Corrections Committee Chairman Jerry Madden carried the bill which passed the Legislature easily but was vetoed. Here's what Glod had to say about it:

The majority of state funds distributed to probation departments are based upon the number of individuals the department has under direct supervision. This means that there is a substantial disincentive to terminate probation sentences for individuals who have followed all requirements of their probation, timely paid their restitution, and no longer need to be supervised. 

In 2007, House Bill 3200 was passed. The bill directed CJAD to develop a new basic probation funding formula based on certain criteria. First, it would base funding on the number of felony defendants placed on community supervision, rather than directly supervised. This means the department would not lose out on funding for terminating an individual’s probation early. Second, funding would be additionally based on each felony defendant participating in a pretrial program and supervised by the county. This addresses the current fiscal disincentive for local jurisdictions to divert appropriate individuals from probation altogether, such as by not bringing or by dismissing charges against those arrested for first-time, low-level drug possession contingent on completion of a drug treatment program. Third, a per diem amount would apply for each misdemeanant placed on community supervision. Fourth, higher rates of funding would be established for felony defendants who are serving the early years of their term rather than felony defendants who are serving the end of their term. This is based on data showing most new offenses and revocations occur within the first two years a person is on probation and that for those who have been exemplary in that time there is little or no benefit to further supervision. Fifth, funding would be reduced for departments with excessive numbers of technical revocations. Sixth, additional funding would be provided based on the number of early terminations, which is partly designed to compensate for the lost probation fees, which may be disproportionate to the savings from not supervising a person who required little supervision to begin with. 

The bill was vetoed because “technical revocation” was not defined. A possible solution is to define technical revocation can be defined as violating the terms of probation without any allegation of a new criminal offense. Additionally, it would be beneficial to instruct CJAD that in determining the penalty for excessive technical revocations consideration should be given to the risk level of a department’s caseload and the jurisdiction’s rate of sentencing nonviolent and low-risk offenders to prison. This ensures that jurisdictions that utilize probation in cases involving more challenging offenders are not penalized.

That same year, Perry signed probation reform legislation which he'd vetoed the session before, but he had not progressed far enough down the #cjreform path to embrace this part of the package at a time when critics were hollering at the tops of their lungs that the sky would fall if one less prisoner was incarcerated. With the benefit of 20/20 hindsight, it's easy to see that crime continued to fall after those reforms and implementing the economic-incentive part of the package surely would have been fine. If TPPF has its way, maybe the current governor will have another opportunity this year to sign such a bill.

Frequently economic incentives effect change in government more concretely than policy dicta. The reason half of revocations by local probation departments are still for technical violations, not new criminal charges, is that in 2007, the Legislature issued policy dicta but the Governor vetoed the accompanying economic incentives in HB 3200 that made it all work. So the main effects of the 2007 reforms were on the parole side, where technical revocations were driven down to record-low levels and parole release rates ticked up. Implementing Madden's idea would create new incentives - a "nudge," to use Cass Sunstein's phrase - for the same beneficial trends on the probation front.

Grits hasn't seen legislation to this effect yet, but I hope it's coming.

Irresistible: Bills seek transparency on resisting arrest

Texas state Rep. Harold Dutton has filed a sweet little bill, HB 1219, with the sole purpose of requiring prosecutors who charge a defendant with "resisting arrest" to say what was the underlying offense for which they were originally being arrested. State Sen. Konni Burton has filed similar legislation, SB 494, which would require that information to be included in police offense reports when resisting arrest charges are filed.

For example, Sandra Bland was eventually booked for resisting arrest, but the arrest she was resisting was for failure to signal a lane change. Burton's bill would require that information to be included in a police report and Dutton's would require its inclusion in the prosecutor's charging document.

These bills speak to an issue that came up repeatedly when your correspondent was ACLU of Texas' Police Accountability Project Director from 2000-2006: Some police officers use "resisting arrest" essentially as a form of "contempt of cop" charges. When that's the only charge, it's a red flag that justifies further review because often the arrest turns out to be trumped up or the facts turn out to differ from the arresting officer's official narrative.

It's such a dubious tactic that some departments use it as an early warning sign, flagging officers who use it too often for further review, retraining,  etc.. WNYC reported in 2014 that "departments around the country look for combinations of indicators to spot patterns of questionable behavior. Many, for example, also look at cops who regularly charge people with resisting arrest." That story quoted long-time policing expert Sam Walker declaring that, “There’s a widespread pattern in American policing where resisting arrest charges are used to sort of cover – and that phrase is used – the officer’s use of force,” said Walker, the accountability expert from the University of Nebraska. “Why did the officer use force? Well, the person was resisting arrest.”

Occasionally the MSM latches onto this phenomenon, though mostly it's obscured by the vastness and opacity of the justice system and immunity afforded to police when people complain. NPR's Morning Edition broached the issue two years ago, and the Daily Beast followed up with an item titled, "When the only crime is resisting arrest."

More recently, in December News.mic reported statistics from the NYPD to show that the charge was being overused by a relative handful of officers.

just 15% of New York Police Department arresting officers generate over 50% of all "resisting arrest" charges, while an even smaller group of just 5% accounted for over 40% of those incidents.

That statistics again: Just 5% of the entire NYPD (roughly 34,500 officers) were involved in over 40% of the city's "resisting arrest" incidents. 

In the 51,000 cases that WNYC identified, over 20,000 were reported by that 5% of officers.

We don't have a lot of Texas statistics available on this that I'm aware of, but last year Chase Hoffberger at the Austin Chronicle published a story detailing how the downtown district of the Austin Police Department  by far disproportionately used this charge compared to other parts of town, often as the only offense. His article included this graphic:

Annual Arrests by Offense

Charges for most Downtown arrests have fluctuated over the
past decade. Resisting arrest has seen significant growth.

So resisting arrest accounted for 52 percent of the charges listed for the downtown district in 2015; throw in "interfering with public duties," and that's 67 percent of the listed arrests on charges which at times have been euphemisms for "contempt of cop." Before the age of cell phone and dashcam video, such allegations were universally disbelieved. Now everyone knows it can happen. The cop who hollers "stop resisting" while he punches a placid, supine suspect is gaming the system. These bills seek to add one small additional bit of information to help judges and juries better understand the situation.

Finally, an optimist may even imagine a world in which these bills and Burton's SB 271 pass. That legislation would ban arrests for non-jailable Class C misdemeanor offenses. If it gets through, arrests like Sandra Bland's would be, as a practical matter, forbidden; there could be no underlying arrest to resist. And if the underlying arrest wasn't for a Class B misdemeanor or higher, it would become hard to justify the resisting charge to a jury. Taken together, these bills would be an important police accountability upgrade and a vast improvement over the status quo.

Government doesn't know how many people it shoots, and other stories

Grits has a busy day today so let's round up a few items which might have made it into individual blog posts if I had more time.

Come Correct
Right on Crime published this blog post on the Texas House Corrections Committee's new interim report. See Grits coverage of that document here, here, and here.

Forfeiture target of property-rights push 
Efforts are ramping up on the right to require criminal convictions for asset forfeiture in Texas. See coverage from the Texas Observer,  Hot Air, the Dallas Observer, and Legal Insurrection. Go here to ask your Texas legislators to support these efforts.

Not all costs of failing to 'raise the age' come in budget
After Grits made the link on Monday, advocates and media in Houston and at the capitol invoked 17-year old Emmanuel Akueir's suicide in the Fort Bend County Jail as an argument for raising the age of adult criminal responsibility to 18. The Houston Chronicle coverage included an interview with his family. "'Emmanuel was a minor who was put with adults who've lived the criminal life and are well aware of right and wrong,' said sister Iman Akueir. 'He was a child and treated like an adult. There's no excuse about what happened. Children are children.'" Added an attorney at the capitol event: "'If we had passed this last session, that 17-year-old would not have been in that facility. So we're talking lives here. ...  If you want to talk about costs, ask his parents about costs."

Government doesn't know how many people it shoots

Grits contributing writer Eva Ruth Moravec reported that the Texas' new reporting of police shootings omitted 16 cases last year, calling into question the lack of enforcement mechanism in the law to compel agencies' participation. This tells us the omissions identified by academics in the state's death-in-custody reporting persist in these new police shooting reports. Indeed, the state has struggled to get a handle on how often police officers shoot or kill Texans. Readers may recall that another Grits contributing writer, Amanda Woog, last year determined that the Attorney General had miscounted the number of police shootings, overstating the number or reports they'd received by 20 percent. So the new reporting system is missing quite a few reports, and the AG has bungled analysis of the ones they do get. The bill from last session creating these reports was an important first step, but the law needs to be tweaked to plug these gaps and give it some teeth when agencies don't report.

Oklahoma!

Oklahoma Gov. Mary Fallin continues to push criminal-justice reforms. Wish she could convince fellow Republican Greg Abbott to do the same.

Punishing prosecutors

From the abstract of a new academic paper: "This article describes the distressing, decades-long absence of discipline imposed on prosecutors whose knowing misconduct has resulted in terrible injustices being visited upon defendants throughout the country. Many honorable lawyers have failed to speak out about errant prosecutors, thus enabling their ethical breaches. The silent accessories include practicing lawyers and judges of trial and reviewing courts who, having observed prosecutorial misconduct, failed to take corrective action. Fault also lies with members of attorney disciplinary bodies who have not investigated widely publicized prosecutorial misconduct. "

How capitalist competition boosted drug cartel efficiency

This interview by Vox with Sanho Tree is worth a read. IMO his central thesis is hard to argue. The drug war has focused for generations nearly exclusively on low hanging fruit, allowing its proponents to mistake activity for achievement without ever seriously threatening the biggest players. Meanwhile, cartel leaders have perfected their craft and devised structures that all but completely insulate them from accountability and ensure that big fish get off, while little fish get eaten. Thought provoking stuff.

Texas Chief Justice Decries the "Nonsense" of Money-Based Bail in "State of the Judiciary" Address

Texas Supreme Court Chief Justice Nathan Hecht urged state lawmakers to enact bail reform in this legislative session.  In his "State of the Judiciary" address, the Republican jurist's impassioned address began by pointing out that in only twenty years, the percentage of people in Texas jails awaiting trials skyrocketed from about 33% of all jail inmates to 75%  of all inmates.

Justice Hecht reminded lawmakers that "[l]iberty is precious to Americans and any deprivation must be scrutinized."  He said, "Many who are arrested cannot afford a bail bond and remain in jail awaiting a hearing.  Though presumed innocent, they lose their jobs and families, and are more likely to re-offend.  And if all this weren't bad enough, taxpayers must shoulder the cost--a staggering $1 billion per year."

He also criticized the current money-based system for getting it wrong on both accounts:  keeping the wrong people in jail while also releasing the wrong people  from jail.  Instead of making decisions based on the risks that individuals pose, the current system bases release on a person's ability to pay. He said, "Those who are arrested and cannot afford their bail are forced to remain in jail until their trial date, even if they pose no threat to the community and no flight risk."

The senior jurist gave a poignant example of the "nonsense" of the current system:

"Take a recent case in point from The Dallas Morning News.  A middle-aged woman arrested for shoplifting $105 worth of clothing for her grandchildren sat in jail almost two months because bail was set at $150,000--far more than all her worldly goods.  Was she a threat to society? No.  A flight risk? No.  Cost to taxpayers?  $3,300.  Benefit: we punished grandma.  Was it worth it? No.  And add to the nonsense, Texas law limits judges' power to detain high-risk defendants.  High-risk defendants, a threat to society, are freed; low-risk defendants sit in jail, a burden on taxpayers.  This makes no sense."

Instead of relying solely on money bail as a determinant of a person's release, Justice Hecht and the Judicial Council have called for state lawmakers to create a new system that relies instead on validated risk assessments and evidence based supervision practices. He noted that several counties in Texas already use risk assessments and concluded:  "The Judicial Council recommends that this be standard practice throughout Texas. Liberty, and common sense, demand reform."

MORE: See coverage of Chief Justice Hecht's speech from the Texas Tribune.

That time when TDCJ contracted with black-market party-pill pushers who were busted before they delivered their shipment

Did the Texas Department of Criminal Justice really contract with black-market pill dealers in India to supply execution drugs? That's the blockbuster revelation in this Buzzfeed report. Apparently, "In January 2015, facing a market where reputable options have dried up after manufacturers forced sellers to agree to never sell to executioners, Texas looked overseas and found willing sellers in India." TDCJ told the DEA in an official filing that they'd be getting the drugs from a company called Provizer Pharma, which turned out to be a front for an illegal-drug ring that sold a wide array of party pills in underground Indian markets,

TDCJ spokesman Jason Clark called the Buzzfeed story "highly speculative and inaccurate" and insisted that, “The agency has not engaged in any transaction with this company.” But the fact is, TDCJ really did submit paperwork to the DEA saying it intended to buy drugs from these black-market dealers. The deal fell through not because of TDCJ's rigor in contracting but because, before they could fulfill the order, the drug dealers they were working with were busted for their party-pill operation. Jason is right there was never a transaction, but it wasn't for lack of trying. Six months after the Provizer Pharma bust, "In July 2015, a different supplier in India sent Texas 1,000 vials of sodium thiopental." TDCJ never got them, though: The FDA seized the drugs and has yet to make a final determination whether they'll ever be released.

Even with Donald Trump appointing a new FDA commissioner, the outcome here isn't certain: Presently, importation of the drugs is banned by a federal court order.

Grits' concern here isn't so much whether or how TDCJ purchases death-penalty drugs - I've said before if they switched to the firing squad it'd be fine with me. But just like police officers who purchase illegal steroids risk corruption by trafficking with drug dealers, when I hear that TDCJ is palling around with party-pill pushers in India, going so far as to inform the federal DEA that they'd be engaging in large-scale purchases from them, I wonder about who was in the decision making tree on this deal and how much they knew - or willfully ignored - about those with whom they were climbing into bed.

To recap: TDCJ feared it wouldn't be able to kill people under American legal regimens without the state changing its execution method. So it sought out black-market party-pill-pushers in India to supply the missing drug and tried to convince the DEA to go along with it. Further, the reason the transaction didn't go through isn't because some state or federal official said "that's not a good idea," but because the black-market pill manufacturers were arrested for drug trafficking before they could deliver the product.

As we've learned time and again when it comes to innocence cases, in the criminal-justice arena, excessive zeal to do the right thing can frequently result in official misconduct. Certainly TDCJ has a duty to seek out these drugs as long as the Legislature says that's how executions must be carried out. But climbing into bed with shady, overseas drug peddlers demonstrated poor judgment. And the fact that TDCJ's partners were arrested before the deal was consummated hardly mitigates the agency's foolhardiness.

Banning arrests for Class Cs, giving drivers notice, would improve traffic-stop culture

My favorite part about SB 271 by Sen. Konni Burton, and its companion, HB 567 by Rep. James White: Not only does the bill ban arrests for non-jailable offenses, preventing episodes like Sandra Bland's tragic arrest for failure to signal a lane change, the text includes this provision requiring police officers to inform motorists of that fact:

Sec. 543.0045. NOTIFICATION REQUIRED DURING TRAFFIC STOP.
(a) An officer who stops a motor vehicle as a result of a person's alleged commission of a misdemeanor under this subtitle that is punishable by a fine only shall promptly notify the person that:

(1) the alleged offense is a misdemeanor under this subtitle that is punishable by a fine only; and 

(2) the officer may not arrest a person solely on the basis of that offense.

(b) The Texas Commission on Law Enforcement by rule shall specify the language that is required to be included in the notification described by Subsection (a).

That will significantly alter the culture of and interactions at traffic stops between police and motorists, foregrounding motorists' rights in their conversation as opposed to only the officers' prerogative, and letting the driver know what to expect. At present, officers in many departments are trained to do the opposite: Pepper drivers with disconcerting personal questions trying to find a reason to search or arrest them. But if drivers know what they're being stopped for and that it will not result in their arrest, that will lower tensions at traffic stops and make the situation more predictable and manageable for all parties.

Time for Texas to 'Raise the Age' for adult crimes from 17 to 18

Youth from around the state will arrive at the Texas capitol today to support raising the age of criminal responsibility from 17 to 18. The event comes on the heels of the suicide death of 17-year old Emmanuel Akueir last week in a Fort Bend County Jail cell, highlighting the particular strains which are placed on young people when they're locked up as adults. This tragedy emphasizes why Sheriffs have been supportive of the idea: their facilities aren't really designed to house and manage juveniles, and youth like Mr. Akueir pay the steepest price.

Texas is one of seven states where the age of criminal responsibility is below 18, and other such jurisdictions are also reconsidering the policy. In North Carolina, Politifact evaluated claims that a short-term investment in raising the age would save money in the long run. They dubbed the claim "mostly true," concluding that:

other states have found juvenile justice reforms including taking teenage offenders out of adult prisons do lead to less crime and long-term savings – possibly as much as $10 for every $1 spent on reform. Yet despite all the evidence about long-term savings, there’s also no denying there would be short-term cost increases for state government.

We're talking about systems, not static investments, and the idea that a small short-term expense may generate long-term savings is pretty typical in the criminal-justice field. For example, Texas' investments in treatment and programming on the adult side beginning in 2007 have prevented billions in prison spending. But many of the legislative leaders who pushed through that effort are gone now and it remains to be seen whether the Lege can be convinced to go that route for 17-year olds in a tight budget climate. It's the smart move from a good-government perspective, but good government isn't the sole or even main goal of every politician these days, readers may have noticed.

The Texas Tribune recently dubbed the Raise-the-Age proposal the top priority for juvenile justice advocates this session, providing this analysis:

The top issue for juvenile justice advocates this session will be pushing to raise the age of criminal responsibility from age 17 to 18. State law has considered 17-year-olds adults for criminal purposes for decades, but critics say the practice could do more harm than good to children, who they say have no business being locked up with adult offenders instead of being treated with 16-year-olds and younger people in the juvenile justice system. 

Legislation to make the age change failed in the 2015 session, and supporters have vowed to try again. If Texas does not enact the change, lockups in the state would continue to risk being at odds with federal law – the Prison Rape Elimination Act, which bars 17-year-old inmates from being within "sight or sound" of inmates 18 and older. County jails have had issues being able to comply with federal law because of lacking resources.

Concerns have been expressed whether the juvie system has capacity to handle 17 year olds, but the proposal comes at a time when juvenile incarceration AND crime have been plummeting for a decade, both in Texas and nationally. Texas incarcerates around 20 percent of the number of youth inmates compared to a decade ago, with juvenile crime continuing to drop as the state decarcerated. So capacity isn't Grits' biggest concern. Rather, I fear the relatively small sums required to implement the change may loom larger in a tight budget year than in a session where they have enough money to pay the bills.

Most Texans already think the age of criminal responsibility is 18 and typically only find out otherwise if their high-school-junior son is arrested and charged as an adult. But laws serve the public better if they match the public's perceptions, and most people don't consider kids "adults" before they can vote, much less drink. Treating a 17-year old as an adult is a legal fiction whose time has passed. Texas should change the law this year.

CORRECTION/UPDATE: This post originally said Texas was one of nine states treating under-18 kids as adults, a number I'd recalled from memory. LBJ School lecturer Michele Deitch emailed to say the total is actually seven. "Louisiana and South Carolina raised the age last year," she advised. Not exactly liberal bastions, those two states. Perhaps that momentum will help convince Texas legislators that it's politically okay to do this.

Tyler mayor to run B&B for racially profiled black men, and other stories

Blogging was slow last week but that doesn't mean there weren't quite a few items in the news which merited Grits readers' attention. Here are a few of them:

Medical neglect at TDCJ espied after prisoner death

Alton Rogers died of head trauma in an Amarillo prison unit about a year ago after his cellmate slammed his head into the concrete. But autopsy results and medical records revealed he was extremely malnourished and significant medical problems had long been neglected by TDCJ which also contributed to his death. The Intercept has excellent coverage of this story. 

Tyler mayor to run B&B for racially profiled black men

Heisman trophy winning running back Ricky Williams was stopped by cops in my hometown of Tyler earlier this month and questioned in an exchange caught on police dashcam. He'd been taking a walk around his hotel, where he was staying in order to attend an awards dinner for Earl Campbell's foundation, when a homeowner called the cops to report a black man had been standing near his back fence. In Tyler, this apparently will get three cops sent to the scene ASAP. Two of the officers recognized Williams before they stopped him. But the third did not and began to aggressively question him, even lying to him to try to get him to confess to a crime. He told Williams he knew "more than you think I know," including that Williams had been in a neighbor's backyard, not just walking past it. Williams didn't bite, but he did question whether this was a racially motivated stop. This spurred the other two officers, who by this time probably knew the encounter was about to end up online, to interject that this is how they'd treat anyone in this circumstance and try to defuse the situation. Later, Tyler's mayor Martin Hines reached out to the former Miami Dolphns star, offering to let Williams stay in his personal family home the next time he's in town. (“I even invited him to stay with my family when he’s here. We have a guest room he’s welcome to.”) Grits imagines the mayor similarly extends this offer to all black men in Tyler who feel they've been racially profiled by police, don't you think? No chance Williams only got that offer from a starstruck mayor because he's a celebrity and a famous Texas football player. Nah! That can't be it.

Expunge this

For those in and around Austin, the UT law school's Expunction Project will hold a couple of intake sessions next month. Go here for more information.

Austin gets new police monitor

I don't know the new Austin Police Monitor, but the last one, Margo Frasier, was the best we ever had. She made the most of what, on paper and in practice, is a weak and ineffectual office. But it possesses a bully-pulpit function that only works if the Monitor uses it. She did. Will her successor? That's the question lingering in my mind. We'll know soon enough.

Dallas pension fight further devolves

Talks over a pension deal in Dallas have completely broken down and the city may soon pull out of the pension fund and create a new one going forward. Police unions' scorched earth tactics probably will preclude additional negotiations (anybody who questions their demand for a bailout is immediately dubbed a liar, said to have "conned" officers, accused of hating the retirees, etc.), setting the stage for years of litigation that's in the best interest neither of taxpayers nor retirees. The likelihood that police pensions drive the state's second largest city into bankruptcy increased this week.

'New breed of prosecutors'

Freshly minted DAs in Austin and Houston were among those profiled in the Marshall Project item about reformer prosecutors elected on the same day as Donald Trump. I'm kind of surprised they didn't mention Nueces County, which was truly a race decided on reform issues. In Harris, the flip was more rooted in partisan shifts that also impacted the judiciary and other countywide offices.

Death decline

This item from Houstonia magazine credits better-quality lawyering for Texas having the lowest number of executions last year in two decades. And that's certainly part of it. Unmentioned, though, was a change in the law from 2015 which required prosecutors to notify the defense when they request an execution date from a judge. This additional notice has given the defense heretofore unavailable opportunities to challenge execution dates at the time they're requested, rather than find out later only when the judge issues an order based on an ex parte request. Some of those whose dates were delayed will still eventually be executed, but the change prevents some of the last-minute wrangling and postponements that historically surround such events, While the effect likely is short-term, that new law probably explains the dip in executions in 2016 better than broader macro factors like attorney quality.

Harris DA accused of withholding snitch deal, conflicting testimony

Attorneys from Baker Botts have alleged in filings to the Texas Court of Criminal Appeals that Harris County prosecutors engaged in misconduct in a capital murder case, failing to disclose that a key witness "had provided two separate and conflicting statements to police," as well as failing to "disclose a deal not to prosecute another prosecution witness in exchange for his testimony."

Reduce drug penalties, expand treatment, opportunities for addicts

Treatment, not incarceration, is key to reducing drug-related crime, wrote the executive director of Austin Recovery in a column calling for reducing penalties for low-level drug possession from a state-jail felony to a misdemeanor. "Lowering penalties for minor possession can save Texas more than $60 million – funds that can be used to decrease the waiting list for treatment and overdose prevention. Decreased penalties also mean that people with addiction still have the opportunities to achieve their full potential," she concluded.

Cowtown cop's disciplinary file secret

See an update from AP on the episode out of Fort Worth in which an officer arrested a black mother and daughter while verbally defending the white man who had allegedly assaulted her son. The story noted that disciplinary records for past incidents involving the officer are secret unless they resulted in a firing or suspension. That's a problem not just for public accountability but also for prosecutors. In cities which have adopted the state police and fire civil service code, prosecutors similarly lack access to "impeachment" information in disciplinary files of officers they put on the stand as witnesses, although they have a duty under the Michael Morton Act to disclose such information. The Legislature needs to plug this gap in the MMA, which puts prosecutors in a particularly rough spot.

Crime by the numbers

Vox took a deep dive into the new FBI crime statistics providing important context to the "American carnage" demagoguery emerging from the White House these days.

Pretext-based policing and arrests for non-jailable offenses

Grits was on a panel yesterday at an event at the UT Law School with Austin's interim police chief Brian Manley on the subject of pretext stops and and arrests for non-jailable misdemeanors. Since I was on the panel, I didn't take notes, but wanted to recount one (to me) telling exchange.

Chief Manley opposed pending legislation by state Sen. Konni Burton to eliminate most arrests for non-jailable offenses, saying there may be situations where it is still necessary. Asked what those might be, however, he could only name one: The officer might suspect the driver of other crimes.

And yet, Grits replied, isn't that the definition of a pretextual detention? If the officer had probable cause to believe a more serious crime had been committed, they could arrest the person. If they had reasonable suspicion, they could conduct a search. But having only suspicion that is less than "reasonable," Chief Manley wants authority to arrest motorists anyway for a Class C misdemeanor, just in case, basically on an officer's hunch. Those on your correspondent's side of the issue don't believe officers should have that power: That's the crux of the debate.

When the session was over, Grits walked out of the room with fellow panelist House County Affairs Committee Chairman Garnet Coleman, who is a joint author to the House companion to Burton's bill. A gentleman approached to tell Coleman he had been a police officer in Florida for 20 years and arrests for non-jailable offenses were verboten there under the state constitution. That limitation had never prevented him from doing his job, he assured the chairman. He predicted Texas cops would experience growing pains during the transition if such arrests were banned because they're so accustomed to using that extra leverage against people, but assured the chairman that it's perfectly possible to perform policing functions without it. Here's hoping Texas gets to find out.

Treating criminal justice 'like a business,' and other stories

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

Violent crime remains low
FBI crime data is out for the first half of 2016. See the full report. After reaching historic lows, violent crime ticked up each of the last two years, mostly concentrated in a handful of cities. Meanwhile, property crime continued to decline. Bottom line, the "American carnage" theme is politicized horse hockey, an analysis from Vox found.

Kelly: Treat criminal-justice policy like a business

UT-Austin Prof. William Kelly says if you want government to behave like a business, apply cost-benefit analyses to criminal justice policy. I've been meaning to review Kelly's new book, The Future of Crime and Punishment, which is sitting on a shelf in front of me, but haven't gotten around to it yet. Maybe soon.

Dallas pension debacle devolves

Talks have broken down between the city of Dallas and the police/firefighters pension fund. Recriminations, lawsuits, are forthcoming. Dallas can't cover the shortfall without gutting all other aspects of city government. Pensioners could stop receiving checks in a little more than a year if the status quo remains. What a catastrophic mess.

CLEAT makes specious attack on DA

CLEAT has been attacking the Tarrant County DA over releasing video of a police shooting, but the DA appears to have been in the right. Which, for CLEAT, is no reason not to attack her. Makes for better press than the pension fights, after all.

Money grubbing motives shouldn't stop transparency

Court records are public but 95 counties don't want them put online, mainly because they couldn't then overcharge $1 per page for copies. This is not a valid reason not to do it.

I love my new job
This week, more than 2,500 Just Liberty supporters emailed their state senators to support abolition of the Driver Responsibility surcharge. Now, go here to send messages to Texas House members asking them to repeal this misbegotten law.

Junk science watch
Voice analysis is another "shaky" forensic discipline.

Guilty plea problem
The national Innocence Project has a new website focused on the problem of innocent people pleading guilty, exploring examples, causes and solutions.

Ferguson-effect argument demeans police professionalism

At the Washington Post, Radley Balko picked up on themes from this Grits column on "de-policing" and elaborated in a story titled "Why are police groups and their advocates advancing a theory that makes police officers look terrible?" As a journalist, wrote Balko, criticism of his profession "makes me strive to do my job better, not worse. I’d like to think most law enforcement officers feel the same way." Read to the end, he does a good job with the topic.

Senate committee wimps out on driver surcharge abolition

In its interim report, the Texas Senate Transportation Committee surprisingly recommended various technical methods for reducing Driver Responsibility surcharge costs - including expanding the offenses to which the program applies in order to lower the cost of each surcharge - rather than suggesting how to abolish them. According to the report, "Due to fiscal consequences, an all-out repeal would not be plausible and the legislator [sic] should consider perhaps looking closely at phasing the driver responsibility program into a points system while leaving Driving While Intoxicated (DWIs) as the lone program to collect the existing surcharges."

Grits calls the recommendation "surprising" because in 2015, that committee passed legislation to abolish the surcharge. In the interim report, four of the nine members added letters to say they disagreed with the recommendation not to abolish the DRP. Many of the proposals listed have been kicked around in the past by hospital interests which receive the money, so these are recommendations on behalf of the recipients of the funds, not the general public who are paying.

By contrast, Sen. Don Huffines wrote in his dissent on the DRP:

the state cannot continue to justify programs that are uneccessarily onerous to Texans merely based  on the revenue thatthese programs generate for the state. To do so would be the antithesis of a limited government philosophy that we should espouse at every turn, where we act on the belief that dollars that stay in the private sector are better spent or invested by families and job creators than they are by state government. It is neither conservative nor compassionate to insist that a debtors' prison, such as the DRP, should be perpetuated to provide a strictly punitive, immoral, and entirely unreliable revenue source for government.

Sen. Bob Hall wrote that the committee's recommendations "would be seen by many Texans as a side-stepping of major issues and a complete dismissal of the fact that less than half of the fines and penalties derived from the DRP are being allocated to the Designated Trauma account, complaining that, "The report itself gives only cursory acknowledgement at best to concerns with the program's impact on low income Texans and divergence from the initial intent of the legislation." Grits agrees with both those critiques.

Don't get me wrong: Moving no-insurance and invalid license cases into the point system instead of keeping them as standalone surcharges would be better than a sharp stick in the eye, especially if they also included provisions to eliminate surcharges through community service and mandated another amnesty, to help all the people screwed over by this misbegotten program in the past. But Huffines and Hall are right that abolition should be the goal.

Nobody wants to de-fund the hospitals, so to cover the amount they've been receiving the Lege needs to come up with around $80 million per year. In a budget the size of Texas' even in a tight fiscal climate, that is not an insurmountable task; it's a function of whether legislators possess the political will. Budgets are moral documents. And failing to abolish the Driver Responsibility surcharge after one is educated about the harm it causes is an immoral choice.

RELATED: From Just Liberty: Encourage your Texas senators to abolish the Driver Responsibility surcharge.

See mo Grits, hear mo Grits: Two speaking gigs this week

The Lord blessed your correspondent with a face made for radio and a voice made for print, Grits has often observed (the missus once ruefully added, "and opinions best reserved for solitary reflection"). But apparently somebody thinks it's a good idea I should speak in public and, as fate would have it, Grits has a couple of speaking gigs this week in Austin about which I thought I'd make readers aware:

On Wednesday at the Deadliners Club, a local journalist's gathering, I'll be on an hour-long discussion (7pm - 8pm) on journalism and activism at Rio Rita on 12th and Chicon. Abby Rapaport is moderating, with Forrest Wilder and Jessica Luther also weighing in. The panel will focus on distinctions between opinion, news, and fake news. Grits hasn't practiced professional journalism in a quarter century, but I was apparently invited to expound/defend portions of Grits' Ten Maxims for Making Journalism Relevant in the 21st Century, which I'm always pleased to do.

On Friday morning, first thing, your correspondent will be on a panel about misdemeanor arrestees that Rebecca Bernhardt mentioned earlier at the UT Law School, sponsored by the Texas Journal on Civil Liberties & Civil Rights.

Both are free but registration is required for the UT event. I'm looking forward to them. These are both among Grits' favorite topics.

Forensic Science Commission deserves funding, and other stories

A few odds and ends which merit Grits readers' attention:

• The Texas Senate zeroed out the budget for the Forensic Science Commission, despite that agency having been charged with licensing all forensic technicians by 2019. Surely that cannot stand. The House budget continued to fund the agency with small cuts.
• The Houston Chronicle makes the case for raising the age of criminal responsibility in Texas from 17 to 18.
• TDCJ bans more than 15,000 books in Texas prisons; in Utah, they ban only two.
• A TDCJ prison guard is facing retaliatory prosecution after he released video of fellow officers improperly using tear gas in a fashion which injured an inmate.
• Whoops. Frio County hired a fake cop to run its jail.
• Jerry Hartfield's conviction was overturned. Then he waited inside TDCJ 32 years while nothing happened. 
• Here's a useful Texas Appleseed handout promoting bail reform.
• See a roundup of state decarceration initiatives from 2016.
• Proud of my friend Vanita Gupta as she leaves the DOJ Civil Rights division. We've all come a long damn way since the Tulia drug stings.

'De-policing' meme dishonors those who sacrificed

The Austin police union president claimed the city is becoming victim of "de-policing" because, over the weekend, police did not immediately shoot and kill a man at the very first opportunity, although they did so later. "They could have used that force earlier, but they didn't," he told KVUE.

[Ken] Casaday said the officers waiting to use deadly force may be a result of something called "de-policing," a trend he sees happening across the country. 

"Officers are feeling so much pressure from the scrutiny the media have put on them. They just are not making the stops and taking the risks that they used to... Sometimes it's just easier to go out and answer your calls and not be proactive, because really when officers are proactive is when they get in trouble," Casaday said. 

In Austin, Casaday said de-policing started after former officer, Geoffrey Freeman, shot and killed a naked and unarmed David Joseph last year. A shooting that cost Freeman his job, even though he was criminally cleared.

This is the "Ferguson effect" argument recycled. Since this meme first arose, Grits has never understood why law enforcement spokesmen would suggest something so insulting to their own profession. Basically, the argument seems to be that officers will stop doing their jobs if people criticize them. For my part, I've never known a police officer with that mindset, so it's a bit jarring to see this I'm-too-big-a-pansy-to-do-my-job meme asserted as some sweeping mentality that's gripping the entire profession. I suppose it could be true, but Grits finds it unlikely and thinks there are other explanations for the data. 

Further, the argument tarnishes the nobility of sacrifice by people like Little Elm Det. Jerry Walker, who died in a standoff with a gunman this week in which the suspect was also killed. He didn't shirk his duty or fail to step up when it was time. And it doesn't honor the memory of officers who've lost their lives to portray the bulk of the profession as cowards who would fail to risk such a sacrifice if the public were in danger because criticism had wounded their pride. Not only is that libelous meme untrue, it undermines public trust needed for the policing relationship to work.

Before the Ferguson-effect meme, when Grits heard the word "de-policing" I usually thought of officers faking cases to satisfy numbers-driven policing demands, like drug-arrest quotas generating dozens of false convictions in Tulia, detectives and informants framing illegal immigrants in the Dallas fake drug scandal, or more recently, police officers in Arlington turning in fake tickets for traffic stops they never performed. These cases aren't so much about officers shirking their duty because of media scrutiny as they are aggressive but overworked officers in agencies with poor supervision feeling pressure to make big numbers. That's a bigger concern to me than the idea that police officers may cease performing their duties because some protester or columnist said something rude about them.

It's rather shocking to me that a police union boss would attribute such unprincipled motives to his members. IMO he's not doing them any favors.

Misdemeanor Arrestees and the 85th Legislative Session - UT Conference

Several issues related to misdemeanor defendants- debtors' prisons, bail reform, and racial disparities during traffic stops- will be hot topics at the legislature this session. National and local media coverage, much of it focused on the tragic circumstances surrounding the death of Sandra Bland, has educated and outraged more of the public than ever before. Powerful legislators with the ability to push reform have already filed a number of bills to address these injustices faced by low-income Texans. There is a growing consensus that current practices waste taxpayer money, decrease public safety, and are fundamentally unfair.

The Texas Fair Defense Project is co-hosting a conference at the UT Law School on January 27th that will feature expert panels of advocates, policy makers, and academics discussing the specific problems and proposed reforms. Grits, joined by Representative Garnet Coleman and Ashton Woods from Black Lives Matter, will kick off the first panel on racially motivated pretext stops. Next, TFDP executive director Rebecca Bernhardt joins other experts to talk about pretrial reform and the need to move from a money-based bail system to a risk-based system. The final panel takes on modern-day debtors’ prisons; it’s hard to believe that in 2017 people serve jail time for not being able to pay traffic tickets, but the practice is widespread.

We’d like to see you there. For more information and to register, visit the Texas Journal on Civil Liberties & Civil Rights webpage. CLE credit is available for attorneys.

Exhibit A: Austin PD DNA lab mess argues for independent crime labs

What a breathtaking mess the managers of Austin PD's now-closed DNA lab finds themselves in, and how fortunate for former Chief Art Acevedo that he picked up a new gig in Houston before all the details of the story came out. This writer has criticized APD under Acevedo for focusing too much money and attention on patrol while downplaying the importance of investigations, support staff, and civilian functions like the crime lab. All those issues are now coming home to roost in the form of Austin PD's DNA lab disaster.

The lede to the latest Statesman story on the Austin DNA lab fiasco offered examples of red flags which should have prompted earlier review:

Long before the Austin Police Department’s DNA crime lab was shuttered, prosecutors and defense lawyers were second-guessing its work. 

In 2009, prosecutors raised red flags about DNA results in a rape case, later dismissed the charges against the suspect and eventually hired two private labs to double check the department’s results before refiling them. 

In 2015, a rape suspect’s trial expert said the lab’s results were so riddled with corrections and bad math that the defense should order new tests. 

And in early 2016, prosecutors hired an expert to review 17 criminal cases for potential problems. That expert found mistakes in all of them. 

The story concluded:

Every case the APD lab touched needs to be reviewed, [defense attorney Darla] Davis said. 

“This has been bad,” she said. “It’s bad for both sides. It’s a catastrophe for the whole criminal justice system.”

She's not overselling it, this is a mind boggling mess. If I were a chief with a crime-lab attached to my department, I'd be looking to offload it to some other agency with scientific expertise, or as an independent entity, like in Houston.

Let's call this story Exhibit A in the case for why cops shouldn't be in charge of scientists.

'Money is coined liberty': Bail where economic populism meets the justice system

Recounting life in a czarist prison, Fyodor Dostoevsky wrote that "money is coined liberty." He could have been referencing 21st century American bail systems - long ago abandoned at the federal level and nearly everywhere else on the planet - in which one defendant may remain in jail while an identically situated person goes free, based entirely on who has access to cash.

We're still waiting for soon-to-be-filed legislation aiming to reform Texas' bail system. Such legislation would implement recommendations from the Texas Judicial Council to move away from money bail toward the use of risk assessments (to a greater or lesser extent, as remains to be seen) in determining whether to incarcerate people pretrial. In the meantime, though, the topic of bail reform percolates continuously in other states and at the local level. Here are a few examples of which Grits readers should be aware:

• The Atlantic: How cash bail keeps the poor in jail
• LA Times: California's bail system punishes the poor, and it's time for the government to do something about it
• FiveThirtyEight: New Orleans scales back its extensive, expensive bail system
• The Lens: New Orleans City Council eliminates bail requirements for most petty crimes
• NPR: New Jersey banking on shift from bail money to risk assessment
• NJ.com; Bail reform is killing our business, bail bondsmen say
• SA Express-News: Rules for bail punish the poor
• Dallas News: Why Dallas County can set $150,000 bail for a $105 shoplifting charge, and how taxpayers lose
• Dallas News (ed board): Why burn up Dallas taxpayer dollars to lock up alleged petty thieves?
• Dallas News; Dallas county officials pledge reforms after News' investigation into high bonds for nonviolent defendants