#PardonMe Mr. Governor, who lied at TDCJ?, a public-safety approach to DWI, and other stories

Let's clear some browser tabs. Here are a few odds and ends that merit Grits readers' attention but haven't yet made it into independent posts:

#PardonMe: More Texans should file for clemency
There are a lot more types of pardons, commutations, rights restorations, and remissions of fines and forfeitures available through gubernatorial clemency in Texas than I ever understood. See here for the full list and links to application documents. More people should start filing clemency requests! It can't hurt, you might get lucky, and an increase in the volume may help put #cjreform on the governor's radar screen. If you do file for clemency, be sure to tag the governor on social media and use the hashtag #PardonMe.

No really, who lied?
Federal District Judge Keith Ellison still wants to know who at the Texas Department of Criminal Justice (TDCJ) lied to him, and unlike Grits or Keri Blakinger or prisoner families, he has the authority and the tools to find out!

Taxation by Citation
The Institute for Justice just published a report called "Taxation by Citation." Here's a SA Express-News column from one of the authors. Grits have more to say on this after I've read it.

Rodney-Reed judge leaves bench over fitness issues
The judge in the Rodney Reed case retired, questioning his own mental capacity to preside over cases. Support for clemency in Reed's case is snowballing, with Republican legislators and Hollywood celebs chiming in to say his execution should be halted. Be sure to check out the Reasonably Suspicious interview with Reed's attorneys. MORE: On Twitter, Grits chronicled some of the more storied cases in Judge Doug Shaver's career, from presiding over the Twin-Peaks-biker-massacre debacle to declaring the lawyer for a capital-murder defendant needn't be awake during trial to provide effective assistance.

Guards fired, demoted over fatal TDCJ use of force
TDCJ fired a guard in a Huntsville prison and demoted two others after a fatal use of force incident reported Keri Blakinger at the Houston Chronicle.

Always something
An assistant DA in Panola County has resigned amidst allegations of misconduct.

Harris Co. public defender office growing
With Harris County DA Kim Ogg still publicly fuming that county commissioners didn't let her expand her staff, the commissioners court has significantly expanded the public defender office and it's currently on a hiring spree.

Many prison docs come from bottom of the barrel
From The Appeal and Type Investigations, "Why prisoners get the doctors no one else wants." Grim. Texas wasn't highlighted in the story, but it'd be a mitzvah for some reporter to get the list of docs working in Texas prisons and examine disciplinary histories both here and in other states.

A public-safety approach to repeat DWI offenders that doesn't involve prison
Texas incarcerates thousands of people in prison for repeat drunk driving. But a program first piloted in South Dakota, using insights from behavioral science and focused on repeat DWI offenders, shows far better results than prison for this cohort, reported the Wall Street Journal. Nobody loses their driving privileges or is sent to the penitentiary. Instead, they must show up twice a day - morning and evening - to take a breathalyzer, and are punished with short, one-or-two-day jail stints for non-compliance. Fascinating.

Bashing black-box breathalyzer tech 
That said, the NY Times published a feature arguing that some of the science behind breathalyzer tech is dubious or poorly implemented. This is by no means a new topic, but for a variety of reasons, in 2019, the idea that forensic evidence may not adhere to the strictest scientific standards is greeted with less resistance than in the past.

For the reading pile
Finally, here are several academic articles I'm printing out to read in the near future; maybe some of them will interest y'all:

• The algorithm says you did it: The use of black-box algorithms to analyze complex DNA evidence
• A look at the use of acquitted conduct in sentencing
• The effect of District Attorneys on local criminal justice outcomes
• Experimental punishments
• Disaggregating ineffective assistance of counsel: Four forms of constitutional ineffectiveness
• Will the Supreme Court rein in 'excessive fines' and forfeitures?: Don't rely on Timbs v. Indiana
• Facial recognition and the Fourth Amendment

Bonus tracks from Reasonably Suspicious interview with #RodneyReed's attorneys: Why all the forensics from his case have been discredited

For the October Reasonably Suspicious podcast, my co-host Mandy Marzullo and I interviewed attorneys for death-row inmate Rodney Reed, who is scheduled to be executed on November 20th. Despite this apparent failure, Bryce Benjet of the national Innocence Project and Quinncy McNeal of Mayer-Brown in Houston are in fact excellent lawyers, and their habeas-corpus-phase deconstruction has left little evidence remaining from the prosecution's case that convicted their client.

Regardless, Reed's execution looms.

We published the first part of the interview on the main, monthly podcast in October. Now, here's the full interview, including the final portion describing how all of the forensic evidence in Reed's case has evaporated.


If you already listened to the first part on the podcast, part two of the interview starts at the 11:40 mark.

Bottom line, the state's case hinged on two prongs: 1) forensic testimony that Reed must have had sex with victim Stacey Stites soon before her death, and 2) the fact that only friends of Reed, not Stites' acquaintances, corroborated his version that the two were engaged in an illicit affair.

Now, a re-investigation of the case by Quinncy McNeal has uncovered several additional witnesses who corroborate the relationship between Reed and Stites, none of whom had any relationship with Reed whatsoever. Indeed, after this interview was conducted, a witness came forward who says Stites' fiancee, Jimmy Fennell, confessed to killing her while in prison.

Meanwhile - and this is the portion of the interview that wasn't included in the October podcast - all of the prosecution forensics in the case have been discredited. The defense has secured retraction letters from the former Travis County medical examiner and the DPS crime lab saying the testimony provided against Reed at trial was wrong. If jurors had heard the corrected forensic testimony, much less the independent corroboration of his and Stites' relationship, Rodney Reed almost certainly would never have been convicted in the first place.

With evidence of Reed's likely innocence mounting, the decision whether he will live or die is up to Gov. Greg Abbott and the Board of Pardons and Paroles. They have less than two weeks to decide. Twenty-six Texas House members - 13 Rs and 13 Ds - have asked the Governor to commute Reed's sentence.

For more background, including the best exposition of recent evidence in the case, see Reed's "clemency petition." See also the Texas Tribune's latest coverage.

Find a transcript of our conversation below the jump:

Oklahoma! (does #cjreform); HPD raid response doesn't address phony informant; why do probationers die at high rates? And other stories

Here are a few browser clearing odds and ends:

One out of 8 Travis County jail bookings in 2018 was for Class C misdemeanors
In Travis County last year, more than 5,000 people were arrested for a Class-C misdemeanor only - about one out of every eight people booked into the county jail. Between the Freedom Cities ordinance restricting Class C arrests, beginning in January, and the elimination in June of the local no-sit-no-lie ordinance aimed at the homeless, those bookings should decline significantly for 2019.

Post-raid HPD reforms don't address faked informant that got 4 officers shot and killed 2 innocent people
After a no-knock drug raid in Houston this spring killed two innocent people and left four officers shot, HPD Chief Art Acevedo has announced he's creating a special division of the narcotics unit to execute search warrants in drug cases. But as I told the Houston Chronicle:

“His reform is not on point to what caused the problem,” said Scott Henson, policy director with the criminal justice reform nonprofit Just Liberty. “It’s not solving the problem that your investigators are relying on fabricated informants — [it] wasn’t a function of who’s doing the raid, but why you’re doing the raid, and the reliance on this informant, who it turns out didn’t exist. That’s what caused everybody to get shot. It just elides the core issue of what really happened.”

Attacking junk blood-spatter evidence
Check out an amicus brief arguing to disallow blood-spatter evidence in the Joe Bryan murder case that was the subject of Pam Colloff's massive NY Times Magazine/Pro Publica feature. In it, Duke law-school faculty and students argue that, based on current standards, the blood-spatter expert in Bryan's case could not today testify to the main points used to convict him.

Not so natural after all
His death in the Victoria County Jail was attributed to "natural causes." It turns out, he was denied his methadone prescription and died from preventable withdrawal symptoms. Read the excellent Victoria Advocate account from Kali Venable. See also the Advocate editorial board's condemnation of using jails and prisons to treat addiction.

"Power concedes nothing without a demand ..."
"... it never has, and it never will," said Frederick Douglass. So Grits doesn't feel too bad that elected officials in Austin consider criminal-justice reformers excessively pushy, as several implied in this Austin Statesman article about a string of successful, capital-city #cjreform campaigns. Nobody was going to do any of those things if reformers said "Pretty please" and then waited politely for a response.

Own it!
Gov. Greg Abbott's intervention into Austin's homelessness crisis means he now owns the issue. If it isn't solved, it's his fault. Not sure that was the wisest political choice, but it's the one he made. MORE: Now the governor "owns" his own homeless encampment, with neither a budget line item nor any apparent exit plan besides providing still hypothetical services to Austin's homeless ad infinitum. That'll teach 'em! 

Why do probationers die at high rates?
Here's a possible, future, Suspicious Mysteries segment for the Reasonably Suspicious podcast: Grits has long been aware of research showing incarceration in prison reduces life expectancy. But a new study shows that being on probation is associated with a much higher morbidity rate than being in prison or jail, much less in the free world. I don't know how to parse these competing claims. One one hand, while prison healthcare isn't great, being in prison makes it easier to treat chronic conditions because the patient is always available and can't easily decline treatment. On the other, prison can make you sick; e.g., people who contract Hep C in prison  may suffer liver failure later, once they're out. Meanwhile, to the extent criminal laws in general target the poor, the developmentally disabled, substance abusers, the mentally ill, minority communities subject to discrimination, etc., it's not surprising probationers would be an especially sick lot. Or maybe the difference is that people in prison aren't at risk of dying from car crashes! Who knows? Grits would like to better understand this nexus of corrections, health, and morbidity rates. I haven't yet wrapped my head around it. When people die in prison or jail, there is an independent investigation; no one investigates when probationers die, so outside of the above-linked study, we don't have very much information at all regarding why that is.

The Probation Trap
Probation as an institution changes its form and purpose depending on the angle from which one looks at it. Viewed one way, it diverts people from prison. Viewed another, it's a net-widening trap. The Philadelphia Inquirer has published an excellent series expounding the latter view. Via SL&P.

Oklahoma!
As much as it pains me to say so, Oklahoma has now definitely out-paced Texas as the red-state poster child for criminal-justice reform. Also via SL&P:

• Boston Globe, "What a conservative state can teach us about progressive criminal justice reform"
• US News, "Oklahoma Focuses on Criminal Justice Reform"
• Washington Post, "Oklahoma approves largest single-day commutation in U.S. history"

On the ground, #cjreform is not really a red-state-blue-state issue.

When smelling pot is pretext for a search
In Philadelphia, police officers who said they searched a car because they smelled marijuana were extremely unlikely to find any and disproportionately searched black people. When the data was gathered, public defenders argued that "the odor of marijuana [should] no longer be considered probable cause for officers to believe a crime has occurred and conduct a search."

Breathalyzer tests as junk science
The New York Times took a trip down the rabbit hole of DWI breath-test forensics. Like DNA mixture software, analysts treat breathalyzers as a magical black box they simply assume supplies reliable results. The problems, however, have been long known.

'Five facts about crime in the U.S.'
Read this from the Pew Research Center.

Even arresting 'kingpins' won't reduce US drug demand

Arresting drug dealers was never a winning Drug War strategy because, as long as demand existed, there was always a willing supplier ready to replace anyone who was arrested, prosecuted, jailed, or even killed. As it turns out, that's true at the highest echelons of the international drug trade.

These changes arguably justify dismantling much of the federal drug enforcement infrastructure as we know it, argued an article in Foreign Affairs by Steven Dudley published this spring, declaring "the days of the monolithic, hegemonic criminal groups with all-powerful leaders are over." As a result, "For U.S. policymakers, it may be overkill to direct the resources of six federal law enforcement agencies toward dismantling these groups, especially in the era of synthetic drugs."

The author observed that today there are "a wide variety of American, Chinese, Dominican, Indian, and Mexican groups supplying the U.S. market, some that conduct almost all of their business online from within the United States."

The FA story linked to a detailed report on Fentanyl smuggling via Mexico and China that's worth a look for those interested in either addiction or drug enforcement. Texas largely has been spared a huge fentanyl problem essentially by chance: the cartels that supply Texas sell "black tar" heroin which doesn't mix well with fentanyl, while heroin that comes to the northeast and midwest from Dominican suppliers or from the Sinaloa cartel on the west coast is more easily mixed. Check out the spike in national overdose deaths associated with the rise of fentanyl:

None of this is to say Texas has no overdose problem. We do, and it's worsening. But it's so far been focused more on meth and cocaine than opiods.

Regardless, the death total was heightened by the Governor's veto of and continued opposition to Good Samaritan legislation. Moreover, the state's failure to expand Medicaid under the Affordable Care Act keeps drug treatment out of reach for nearly all low-income people except through the justice system. Jails and prisons are a poor and ineffective substitute for free-world healthcare, for addiction as much as for mental illness.

Notice, none of the things that would actually save lives involve chasing down drug suppliers in other countries. That has shown to be fruitless. What Americans refer to as "cartels" are really vast hydra-like webs of interconnected companies and criminal organizations that readily reproduce the function of any and every severed limb. Many, many billions of US taxpayer dollars have been spent trying to slay these beasts and for every head severed, two grow in its place.

This isn't new, by the way, it's always been true. It was easy for anyone paying attention to the world of drug smuggling to see that shooting Pablo Escobar solved nothing. Only reducing US-side demand can scale back the scope of the drug trade.

American law enforcement largely has failed, or more aptly, refused to accept this reality. As Upton Sinclair famously put it, “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

The "kingpin" model justified numerous law-enforcement strategies - e.g., expanded use of asset forfeiture, reduced Fourth Amendment protections, abetting the rise of SWAT teams and execution search warrants via SWAT-like "dynamic entry" -  that in practice mostly empower law enforcement in petty, workaday cases. For many years, the drug war was also a reliable source of federal pork.

All this was justified by the idea that trolling for "little fish" could lead to catching "big fish." But even the big fish turned out to be parts of massive schools and were easily replaced. We have decades of evidence that catching, jailing, or even killing "kingpins" does nothing to reduce addiction in the United States.

So if supply-side interdiction has proved pointless, what might affect the demand side? The best way to reduce demand would be to expand Medicaid to access treatment funds to fight addiction. Another recently proven method is to encourage legal, domestic sourcing. Pot legalization in many states has bolstered domestic supply and substantially reduced, but not eliminated, demand for illegal imported marijuana, as demonstrated in this data from the fentanyl report mentioned above:

One final thought: The myopic focus of US drug policy on Latin America is an odd thing, because Afghanistan is overwhelmingly the most important source of illicit opiods coming into the US, according to the Department of State (p. 29 of the pdf):

But drugs are almost exclusively portrayed in the press as a Mexico problem. (China's role was particularly highlighted in the fentanyl report.) In fact, the international illicit drug trade is a global problem, one fueled almost entirely by an insatiable US demand. As long as demand, and prices, remain high, no supply-side intervention will ever "solve" it. As the Foreign Affairs story colorfully concluded:

El Chapo was a powerful and wealthy drug lord, and bringing him down was an undeniably important step in curtailing the reach of Mexico’s cartels. But burnishing his status as a kingpin perpetuates a false narrative that destroying him—and those like him—will solve the problems posed by the drug trade. In fact, convicting one drug lord is more akin to plucking a single bee from the hive.

Podcast: New evidence of Rodney Reed's innocence, first thoughts on the Atatiana Jefferson shooting, and the Mystery of the Disappearing Misdemeanor Arrests

Here's the latest Reasonably Suspicious podcast from Just Liberty:


This is the October 2019 episode of Just Liberty's Reasonably Suspicious podcast covering Texas criminal-justice policy and politics. This month, my cohost Amanda Marzullo and I interviewed attorneys for Rodney Reed, who is on death row with an execution date of November 20th. We plumbed unknowable but interesting questions about misdemeanor arrests, discussed the sad, grim, story of Atatiana Jefferson's shooting in Fort Worth, and complained that the moments spent reading and talking about a new ACLU report on how to end mass incarceration are time we'll never get back. :)

Intro

Okay, it's probably a crime for a former justice of the peace to pimp slap a Yankees fan at an ALCS game in Houston and make him cry, but it's also pretty funny.

Top Stories

• First takes on the Atatiana Jefferson shooting in Fort Worth (2:34)
• Evaluating ACLU decarceration recommendations for Texas (8:34)

Interview

This month, Mandy and I spoke to Bryce Benjet of the national Innocence Project and Quinncy McNeal of Mayer Brown in Houston on the Rodney Reed case. Reed is scheduled to be executed on November 20th. (14:38) This is excerpted from a longer conversation. I'll publish the full interview, which goes into more detail about debunked forensic testimony in the case, separately in a couple of days.

Suspicious Mysteries

Why have misdemeanor arrests declined? Why didn't they decline earlier when crime first dropped? What do we really know about why crime dropped or the relationship between crime and arrests? Mandy and I discuss some known unknowns. (27:15)

The Last Hurrah (36:40)

• Hard to reprimand Texas judges
• Years-long backlogs at crime labs
• Message sent by jury in prison-guard murder trial

As always, I've ordered a transcript and will add it below the jump when it comes back. Enjoy!

Digesting new Daubert opinion on DNA mixtures

Grits earlier referenced the opinion from federal District Judge Janet Neff, in Michigan's western district, who directly evaluated the most common, commercial DNA-mixture software using probabilistic genotyping under the Daubert standard for whether to allow expert testimony. Texas courts heretofore have let in such evidence but avoided a direct Daubert evaluation.

There was a Texas connection in the case. Dr. Michael Coble, of the University of North Texas Health Science Center, was the expert employed by the prosecution. He has been one of several key advisers to the Texas Forensic Science Commission and the legal system in general as the state has struggled with this DNA-mixture issue. The expert for the defense, whose arguments more frequently prevailed in Neff's opinion, was Dr. Dan Krane, from Wright State in Ohio.

Judge Neff evaluated each prong of the Daubert standard as it related to the STR-Mix DNA mixture-analysis software. This program employs high-end math that few DNA-lab practitioners can actually reproduce called "probabilistic genotyping." But programs are only as good as the assumptions that guide their work, and some of the assumptions in each case - e.g., the number of contributing samples - are inputted by the user. There are subjective judgment calls throughout the process. Further, because the math results from tens of thousands of randomized guesses, the results aren't replicable test to test.

Judge Neff was disquieted that, unlike for one-to-one DNA matching or two-source mixtures, as with a rape kit, there are no controlling standards for interpreting DNA mixtures, especially for samples with very small amounts of DNA - maybe only a few scattered cells.

The judge also made the interesting point that, even if the math behind the STR-Mix software is impeccable, there were international standards for coding such high-end math projects and the STR-Mix software didn't meet them all. Coble was dismissive that other fields might have standards to contribute, but the product in question is so obviously an intersection of an array of multidisciplinary work, the judge didn't buy it.

Further, the judge echoed concern that most validation studies on the software so far have been conducted by company principals. And while there was peer-reviewed support for STR-Mix (again, mostly for studies by people with a financial stake in the project), none of that peer-reviewed work focused on low-level samples as in this case, where just a few cells were found that were said to belong to the defendant.

One point that's always bugged me was raised in an expository section of the opinion but not included in her reasons for her Daubert denial: “[D]ue to the methodologies used in STRMix, '[t]he results of no two analyses will be completely the same',” she wrote. Elsewhere, she quoted an academic article noting that, "for a technique to be broadly applicable, it must be based on measurements that can be replicated." Supporters of the software, however, say replicability isn't necessary and it should be good enough if the results were all in some acceptable range. Regardless, while Judge Neff clearly observed this incongruity, it wasn't included in her final reasons for her ruling.

Clearly the most persuasive piece of evidence for Judge Neff was the 2016 PCAST report which expressly stated that STR-Mix was validated for up to three sources if the sample to be identified is at least 20 percent of the total. She did not find further validation regarding smaller samples, and the very small sample in this case, she believed, merited even greater caution. She essentially treated the threshold cited by PCAST as a bright line regarding the current state of the science. STR-Mix can be used for traditional one or two-source DNA matching, she ruled, and for three-source mixtures if the sample to be matched made up 20 percent or more of the whole. But otherwise, the estimates would be inadmissible.

One small upside for backlogged crime labs using STR-Mix: This would make it easier to screen DNA mixture submissions. Samples with more than 3 contributors should probably be rejected up front as unanalyzable "crap," to use the words of a prominent DNA expert who advised Texas crime labs on the topic.

Errors in such cases can cause false convictions, so Grits is glad to see this increasingly dirt-common evidence more carefully vetted. From the time probabilistic genotyping was first introduced to Texas crime labs in 2015, experts were warning against stretching the limits of the math (i.e., trying to analyze "crap"). Judge Neff would set a bright-line threshold, and given the current state of the literature, it's not an unreasonable choice. In many ways, it's the most defensible (it would probably be easier to get past it by improving the tech than defeating her arguments). But whatever threshold one chooses, her decision highlights that one must exist, even if courts haven't heretofore required it.

I'd quoted it earlier, but I loved Judge Neff's conclusory analysis of current DNA-mixture-evidence practices, so let's give her the final word here:

The DNA evidence sought to be admitted in this case—in essence, that it is 49 million times more likely if Daniel Gissantaner is a contributor to the DNA on the gun than if he is not— is not really evidence at all. It is a combination of forensic DNA techniques, mathematical theory, statistical methods (including Monte Carlo-Markov Chain modeling, as in the Monte Carlo gambling venue), decisional theory, computer algorithms, interpretation, and subjective opinions that cannot in the circumstances of this case be said to be a reliable sum of its parts. Our system of justice requires more.

Anyone interested should definitely read the whole opinion. This summary hardly does it justice.

MORE: From Techdirt.

See prior, related Grits posts:

• Most crime labs accused innocent person in DNA mixture study
• A reluctant scoop: Changing interpretations of DNA mixtures vex legal system
• Labs must correct wrong DNA mixture analyses, learn when to recognize 'crap'
• Resources on DNA mixtures
• The challenge of notifying defendants in large-scale forensic error cases
• Courts punt on forensics surrounding DNA mixtures
• Black box DNA mixture analysis method used in NYC turned out to be flawed
• Changes to DNA mixture software raise questions about old versions
• News flash: 'Touch DNA' doesn't necessarily require touching
• DNA mixture SNAFU a mess but don't expect 'deluge' of innocence claims

State officials vs local pols on bail and policing, reinvigorating community service, why that weird brass-knuckles bill was really a thing, and other stories

Let's clear a few browser tabs with a roundup of stories that merit Grits readers' attention:

Texas AG insults federal judge's intelligence
Somewhat predictably, I suppose, Texas Attorney General Ken Paxton weighed in against Harris County's proposed bail settlement, siding against the commissioners court and local judges who agreed to the compromise. Paxton's brief rehashes Houston Chief Art Acevedo's red herring arguments about the Brandon Bell case, engaging in the Willie-Horton-type tactics Judge Rosenthal already rejected from the bail bondsmen and the DA's office. And his brief states flat-out untrue things as facts, like claiming that people engaged in "Riot[ing]" or "Assault causing bodily injury" would automatically get out of jail on personal bonds. That's written for the sake of the media and the public: Judge Rosenthal already knows it's false.

Gov. Abbott's penchant for deploying troopers to patrol cities
Gov. Greg Abbott notoriously has threatened to send state troopers to Austin to roust homeless folks, or something. And earlier this year, at the Governor's command, DPS troopers patrolled the streets of Dallas, ostensibly to combat violent crime. They left in less than three months after complaints emerged from the city council. Grits had forgotten, however, that Abbott had done the same thing in Houston and San Antonio back in 2017. From the 2018 state Gang Threat Assessment:

In 2017, Governor Greg Abbott directed the Texas Department of Public Safety (DPS) to assist local law enforcement agencies experiencing increases in violent crime in their jurisdictions. Operation North Star in Harris County began in April 2017 and the San Antonio Violent Crime Task Force (Operation Alamo) in San Antonio and Bexar County began in January 2017, with DPS joining the operation in May 2017. Both operations integrate intelligence, patrol and investigations to prevent crime in these high threat areas, including gang-related crimes and violence. 

With so many troopers either deployed at the border or patrolling cities which already have their own police departments, one wonders who's out looking for drunks on the highways? That used to be DPS's job.

Change to brass knuckles law prevents hundreds of convictions per year
Texas decriminalized brass knuckles in 2019. According to this chart, there were 509 convictions in Texas for possessing them in 2018, the year before the law changed. That's a lot more than I would have suspected!

Community service options suffer from spotty implementation
The Center for Court Innovation has identified a notable gap in best practices for use of community service to satisfy low-level citation offenses. They suggest courts should diversify community service offerings, including allowing defendants to suggest options, and expand its use beyond just young people and first-time offenders, as is common in some jurisdictions.

On the politics of data, and its absence
When available data isn't quite on point to inform policy decisions, it's always worth asking not just what additional data might be probative, but also why it's not now being gathered.

DNA mixture software widely used in Texas disallowed by MI federal judge

For some time, Grits has been skeptical whether DNA-mixture software would hold up to "Daubert" scrutiny if judges were to directly evaluate it. In 2015, this blog reluctantly broke the story in Texas about errors and uncertainties regarding how to evaluate DNA mixture evidence. (They were being openly discussed by the Forensic Science Commission and the Court of Criminal Appeals' Criminal Justice Integrity Unit when I worked for the Innocence Project of Texas, but reporters weren't covering the complicated, math-heavy story.) After that, I've followed the issue from afar even after I stopped tracking forensics in any professional capacity.

STR-Mix is one of a handful of companies selling their product as a solution to the conundrum of how to evaluate DNA mixture evidence. Now, a federal district judge in Michigan, Janet Neff, after an exhaustive review of the science, has ruled directly on the Daubert-based admissibility questions surrounding this product that Texas courts punted on. In particular, Judge Neff ruled in favor of defendant David Gissantaner, concluding that

The DNA evidence sought to be admitted in this case—in essence, that it is 49 million times more likely if Daniel Gissantaner is a contributor to the DNA on the gun than if he is not— is not really evidence at all. It is a combination of forensic DNA techniques, mathematical theory, statistical methods (including Monte Carlo-Markov Chain modeling, as in the Monte Carlo gambling venue), decisional theory, computer algorithms, interpretation, and subjective opinions that cannot in the circumstances of this case be said to be a reliable sum of its parts. Our system of justice requires more. 

It is the Court’s hope that this decision brings to light the shortcomings or, at the very least, points of inquiry necessary in evaluating this advancing technology as a tool in forensic DNA analysis. There must be a dialogue among key players in the general interest of the development and refinement of the technology, the software and its application by the individuals charged with its use in the field, rather than post-hoc testing of its reliability in the context of a criminal prosecution where the ultimate question is the freedom and guilt or innocence of the person of interest. 

Here, because the sum of the parts simply does not add up to a reliable whole, the DNA analysis/likelihood ratio resulting from the use of the STRmix probabilistic genotyping software must be excluded. Defendant’s motion to exclude evidence is granted. An Order will enter consistent with this Opinion.

Wow! Obviously, this doesn't apply in Texas nor anywhere in the 5th Circuit. But it's the first time to my knowledge that a federal judge has taken a deep dive into the science behind proprietary DNA mixture software and rejected it based on the Daubert standard. Welcome to the party, Judge! Grits was beginning to feel a bit lonely in that view!

In one-to-one DNA matches, or two-source matches like a rape kit where the DNA of the victim is known, DNA evidence remains the gold standard of forensic science. But analyzing DNA mixture evidence - e.g., "touch DNA" on a doorknob or DNA from a blanket on a couch - remains a more subjective process that's sometimes more of a guess than a "match."

I want to delve into the judge's opinion more deeply before commenting further, but this seems like a big development. We know at least some Texas labs use the same proprietary DNA software the federal judge in Michigan disallowed.

Clarification: More on this soon, but having now more closely read the opinion, Grits should clarify that the court recognized STR-Mix software results could be considered valid for distinguishing up to three-sourced DNA mixture samples, but only if the DNA one is attempting to match makes up at least 20% of the sample; in this case it made up 7%. So saying STR-Mix software was "disallowed" in the headline was too broad. Under this ruling, STR-Mix results for one and two source DNA samples would remain admissible, and for three sources, if the sample one wanted to identify made up at least 20 percent of the total. But it couldn't be used when there were only trace amounts from the third DNA source, or when there are four or more sources. Here is a spot where user expectations for forensics exceed the capabilities of actual science. In many ways, the judge's advice corroborates what experts have said in Texas since this issue first arose: beyond a certain point, DNA mixtures become un-interpretable "crap." You can push the math further, but the evidence doesn't therefore improve.

The state of 'progressive prosecutors' in Texas

The article in The Atlantic titled "Texas prosecutor fights for reform" has a certain "Man Bites Dog" quality, which I suppose makes local news from Texas interesting enough for East and West coast media and muckety mucks to take notice. Not that John Creuzot's work in Dallas doesn't deserve attention. In Grits' view, he is the most confident, competent, and sure-footed of Texas' new crop of Democratic DAs. But at this point, the term "progressive district attorney" requires so many caveats that it should probably be discarded, at least in red states, until a few key benchmarks have been established and met.

When Kim Ogg of Houston, Mark Gonzalez in Corpus Christi, and Margaret Moore in Austin were elected DAs of their respective counties in 2016, there was a clutch of mostly national advocates and journalists, coupled with a few local electoral partisans, who pronounced them part of a new wave of "progressive prosecutors." Grits argued at the time that there was no such thing (and still largely thinks that's true).

Larry Krasner's election in Philadelphia changed things. His office produced a memo detailing new policies aimed at reducing incarceration rates that was much more daring and aggressively decarceral than any previous US prosecutor had ever suggested. (For a contemporary podcast discussion of Krasner's memo in context of Texas candidates, see here.) Soon, prosecutors in other states began running mimicking parts of Krasner's approach as well as expanding or exploring other decarceral programs.

In Texas, though, the decarceral efforts of our Democratic DAs have been much more modest.

Harris and Travis Counties have created special courts for state-jail felonies that have helped chip away at state-jail incarceration rates. Joe Gonzalez in San Antonio took a won't-prosecute stance on low-level pot possession (Ogg created a pretrial diversion program for pot.) And both Mark Gonzalez and Margaret Moore found themselves in the happy position to replace such embarrassingly bad prosecutors, they could look like an improvement just by avoiding overt misconduct and not drooling on themselves in public.

On bail reform, in particular, for the most part these prosecutors' positions are far from "progressive." And even if they are, as with Creuzot, judges, local criminal-defense attorneys, and other special interests have proven effective at throwing a monkey wrench into potential solutions.

Ogg in particular has chosen to pick fights with county commissioners, newly elected Democratic judges, reformers, journalists, and academics over every perceived slight, leaving herself ever-more frustrated and isolated. Most prominently, she attacked the pending bail-reform settlement and demanded the county radically increase her staff size without acknowledging how that would a) create disadvantages for underfunded indigent defense or b) run counter to decarceration goals. (Recently a group of scholars came out to criticize the methodology of a study her office promoted to justify the request for more staff.)

Creuzot was the first Texas DA to more comprehensively articulate his own decarceral agenda, sort of a Larry-Krasner-Lite, but whose pronouncements are peppered with "y'alls." His policies were more modest than, say, newly elected prosecutors in Philly, St. Louis, or Boston. Even so, there's no doubt Creuzot's positions were more concrete and his thinking about decarceration is the most-well-developed of any Lone-Star prosecutor. Indeed, his general election vs. a Republican incumbent essentially centered around which one of them would be more reform-minded.

By contrast, in Houston, some of the same reform voices who prematurely hailed Kim Ogg as a progressive in 2016 are calling for her replacement by Audia Jones. Margaret Moore last year asked local reformers to endorse her push to merge the District and County Attorney offices under her control, but refused to enact any of the reforms local advocates wanted in return. As a result, the merger didn't happen and she now faces a serious reform challenger in Jose Garza.

Going forward, if any of these insurgents win in the coming Democratic primaries, then the terrain will have shifted and "progressive" will no longer effectively serve as a synonym for "Democrat" in Texas when it comes to prosecutor elections, as seems to have been the case so far.

Interview: Parsing the civil-rights lawsuit demanding Hepatitis C treatment for Texas prisoners

In last month's Reasonably Suspicious podcast, co-host Mandy Marzullo and I interviewed Texas civil-rights attorney Scott Medlock about his new lawsuit against the Texas prison system over the state's failure to treat inmates suffering from Hepatitis C. (See the original complaint here, and coverage from the Houston Chronicle.) Medlock first learned of the issue in a Grits for Breakfast blog post and filed the suit over the summer. Listen to the excerpted segment here, and find a transcript of our conversation below the jump:

Scaredy Cops: Fear-based training of police officers makes them more likely to shoot

Amber Guyger and Aaron Dean, the cops who shot and killed Botham Jean and Atatiana Jefferson, respectively, had something in common: Both shot an innocent person for no good reason because they were scared.

Maybe that's because they were trained to be.

Guyger testified that she killed Botham Jean because she feared for her life. And clearly Dean, who had snuck into Jefferson's backyard instead of announcing himself at the open front door, considered himself in grave danger just from seeing a woman's silhouette in the window. But neither faced an actual threat. The greater threat in both cases stemmed from their own fear.

Cop culture brims with fearful rhetoric about the dangers they face, even though most cops never fire their service weapon over the course of their careers. A former Baltimore cop writing in Medium last year worried that "police are trained to fear." "Cops are supposed to be heroes and first responders and run toward danger," he wrote, "but it sure seemed like our training was teaching us to be afraid of everyone."

The most important thing for a police officer is to be sure they "go home at the end of the day," they tell themselves repeatedly, including in police trainings on use of force. "It's better to be judged by twelve than carried by six," is a common refrain every police officer has heard repeatedly throughout their careers. Officers and their union representatives have said it to me dozens of times over the years.

In reality, though, the people who pick up your garbage are significantly more likely to die on the job than police officers. That doesn't mean police don't have difficult jobs, that they aren't subject to lesser assaults, or that they are never justified in using force. But in terms of going home to their families at night, construction workers, truck drivers, farmers, and fishermen all have more dangerous occupations.

Much of this exaggerated fear stems from how officers are trained. Amber Guyger had received deescalation training as mandated under Texas' "Sandra Bland Act," but she said she never considered following it over the course of her encounter with Botham Jean. And Dean had just completed 40 hours of CIT training aimed at dealing with people with mental illness; in essence, CIT courses are a version of deescalation training.

However, deescalation tactics are not typically included in the general use-of-force curriculum officers take at the academy. They're treated as an extra, an add-on, not as a fundamental philosophy that should infuse every encounter where force is used. In addition, there is a sizable cottage industry of fear mongering cop trainers teaching officers to adopt a "warrior" mentality.

In Minneapolis, anti-police-brutality advocates have pushed back against such "fear-based training" and the Mayor earlier this year pledged to get rid of it, declaring, “Fear-based trainings violate the values at the very heart of community policing. When you’re conditioned to believe that every person encountered poses a threat to your existence, you simply cannot be expected to build meaningful relationships with those same people.”

Police officers who shoot people have other things in common. They are more likely to be white, much more likely to be male (even controlling for job assignments), and more likely to have NRA-friendly views on gun rights, found a Pew Research Center survey in 2017.

But those effects are relatively small compared to the impact of repeated trainings which teach police to value their own safety above all else. That notion has become deeply embedded in police officer culture and underlies many of the incidents that most inflame the public.

None of this is intended to diminish real-life tragedies like that which befell Harris County Sheriff's Deputy Sandeep Dhaliwal - who recently was shot to death by a mentally ill parolee at a traffic stop - only to put the relative risks in context. Such incidents are far more rare than most people believe. (Pew found that three in ten Americans estimate police fire their weapons several times per year, whereas in fact most never fire them.)

There are more than three-quarters of a million police officers in the United States, but the number who are feloniously killed in the line of duty typically never exceeds double digits (with the terrorist attacks of 9-11 being an important, notable exception). This chart, compiled from FBI data, depicts the number of officers who die each year including both accidents and felonious deaths

Data

By contrast, police shoot and kill nearly 1,000 people per year across America.

Grits believes it will take a generation to change police culture surrounding use of force and end the "warrior cop" mentality that's become de jure in modern law enforcement. But it will take longer than that if officer trainings continue the scaredy-cop approach.

Deescalation can't just be tacked on in addition to use-of-force training - it must BECOME the use-of-force training. And it needs to happen soon.

Roundup: Oversight overlooked, the I-35 Fine Corridor, a last chance to end forensic hypnosis, and more

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

Agency regulating judges toothless and useless
Texas' State Commission on Judicial Conduct is a toothless agency. Its investigators appear to do a good job, but they're too cozy with the judges they regulate and the results just don't sufficiently protect the public. This Houston Chronicle editorial speaks to that point: "The State Commission on Judicial Conduct should be embarrassed by the wrist slap it gave three current and eight former Harris County judges who routinely denied no-cost bail to thousands of poor defendants between 2009 and 2017," their editorial board opined. I agree, but the biggest problems are embedded in the statute and would require the Legislature to fix them.

Crime lab delays grind justice to a halt
State Representative Terry Canales complained to Texas DPS that crime-lab delays fundamentally threaten the administration of justice:

“Defendants are frequently and unnecessarily spending years in jail waiting for forensic evidence to be processed so that they can have their day in court,” Canales wrote. “This gross reality threatens the very essence of our legal system and the fabric of our democracy, and it devalues the credibility of the state’s governing bodies and law enforcement agency.”

According to the McAllen Monitor:

For instance, the oldest firearms case pending is 1,187 days old while the average turnaround is 228 days. The oldest pending fingerprint testing case is 1,279 days old while the average turnaround is 255 days. Finally, the longest pending seized drug case is approximately 1,209 days old while the average case takes 90 days to complete.

Drug war a major contributor to attacks on Fourth Amendment
There's a meme out there spread by revisionist academics like John Pfaff that critics of the drug war have overstated its contribution to mass incarceration. While it's true that only 16.5% of Texas prison inmates are incarcerated for drug crimes, drug cases represent 34% of all new felony charges filed, so Grits finds that criticism overstated, at best. Criminalizing addiction accounts for a huge proportion of how the justice system spends its time. But focusing solely on prison population ignores the severe collateral consequences from the drug war in scaling back Fourth Amendment rights, as prosecutors are seeking to do in two cases pending before the Texas Court of Criminal Appeals. The Austin Statesman's Chuck Lindell covered those here.

Qualified immunity claim overcome in case vs. Dallas transit cop
The Fifth Circuit declined to dismiss a case against a Dallas transit cop based on qualified immunity after the officer arrested a photographer expressly in violation of her agency's written policy. Grits doesn't believe qualified immunity should even exist. Maybe Justice Don Willett is having an influence; he's a critic of the qualified immunity doctrine.

Activists angry at first Dallas police oversight board meeting
The initial meeting of the new police oversight board in Dallas erupted in chaos when board members tried to adjourn the meeting without hearing from the public. Activists were upset that three appointees had opposed creation of the board and lacked commitment to its mission. Adding fuel to the fire, reportedly one of the officers attempting to push citizens forcibly out of the room was wearing a "Punisher" t-shirt.

Fine revenue and local budgets
Now that the state legislature has capped property tax increases for local governments, expect more of them to attempt to boost revenue from criminal fines. An analysis by Governing magazine found 90 Texas municipalities where 10% or more of revenue came from fines, 39 where fines made up more than 20% of the budget, 22 where fines were more than 30% of the budget, and 10 where they made up more than half. An accompanying map shows that many of these are clustered along I-35 between San Antonio and Dallas.

Jury acquits prison guard despite repeated brutality
A Brazoria County jury found a Texas prison guard not guilty of aggravated assault after he slammed a handcuffed prisoner to the floor and killed him. The same guard had already been disciplined for doing the same thing to the same prisoner several months prior.

Politicizing innocence compensation
Having been deeply involved in passing Texas' best-in-the-nation innocence compensation statute when I was Innocence Project of Texas policy director back in 2009, Grits is incredibly disappointed at the Comptroller and Attorney General going to irregular lengths to deny compensation to Alfred Brown. This was pointless, mean-spirited, and driven by pandering to the Houston police union.

Last chance to get rid of 'forensic hypnosis'
This Guardian story on forensic hypnosis correctly hones in a case pending before the Texas Court of Criminal Appeals as the best chance for the state to be rid of the practice. But it incorrectly suggested the Forensic Science Commission could deal with the issue (they say they don't have jurisdiction because the practice doesn't deal with physical evidence), and a bill filed to end the practice at the Texas Legislature last session couldn't even get a hearing in the Senate Criminal Justice Committee. As such, the author was a bit too sanguine the practice might be abolished here. If the CCA doesn't get rid of this junk science, in Grits' estimation it will remain with us in Texas courts for a long, long time.

Hug it out
The judge in the Amber Guyger case explained why she gave the defendant a hug. And an academic argues that the hug Botham Jean's brother gave Guyger turned the trial into a lesson in restorative justice.

Governor should address homelessness crisis for all of Texas

"Verily I say unto you, Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me." - Matthew 25:40

The Trumpian tropes trotted out by the Governor and local Travis County GOP figures in the Austin homelessness debates - all while President Trump and Fox News frenetically amp up anti-homeless sentiment as a national-election wedge issue - make Grits feel tired and sad. It looks to me like a lot of state leaders doubling down on the wrong side of history, as happened not so long ago when opposing gay marriage was the wedge-issue de jeur.

For all the weeping and gnashing of teeth over Austin's homelessness problems, in reality this is something faced by communities around Texas and beyond, some of which have confronted the situation more honorably than others.

In Dallas, local media say there are no solutions in sight for the local homeless problem. But the governor isn't threatening them, and the troopers he sent in to fight crime left quietly after three months.

Houston's no-sit/no-lie ordinance, implemented under Mayor Sylvester Turner, is just pushing the population around the city. But what did work were large federal grants to pay for tracking homeless and connecting them with services.

The folks dispensing much-ballyhooed homeless services in San Antonio openly admit their must-be-sober-and-take-drug-tests-to-receive-help approach leaves much to be desired and keeps many people on the streets who might be helped by a housing-first approach.

Even places like Plano, Frisco, Lubbock, Midland, Tyler, Longview, Nacogdoches, Corpus Christi, Galveston, Sugar Land, Victoria, and Montgomery County struggle with homeless problems they don't advertise but cannot ignore.

Anti-homeless activists have spuriously suggested that California cities may send their homeless to Austin. But if anybody's doing that, it's Waco, where they're forcibly clearing out homeless camps using police and Sheriff's deputies. Then they use forced labor from county jail inmates to clean up the aftermath, with local journalists tagging along for the poverty porn.

Amarillo started down that same path, but city leaders had a change of heart and issued housing vouchers to people in a local encampment instead. Abilene, similarly, has chosen to empty its homeless camps by finding their residents housing instead of chasing them out. These jurisdictions don't have to deal with the scale of big-city homeless problems, to be sure, but their example complicates what the governor, speaking from his walled compound in Austin, might reasonably portray as a "Texan" approach.

Governor Abbott appears to have singled out Austin for political purposes, tying local debates into a national GOP effort to use homelessness as a wedge issue in the culture wars and blaming this decidedly capitalist problem on political liberalism. In doing so, he trivializes a human-rights crisis faced by numerous Texas cities, including the ones still controlled by Republicans. He's missing an opportunity to exercise leadership that could demonstrate to swing voters the Texas GOP can govern as well as it campaigns.

Perhaps what jumped out to Grits most in Abbott's letter was the threat to use "quarantines" to ban the homeless from certain quadrants. Texas' quarantine laws haven't been used since the Ann Richards administration, and that time it was also a politicized abuse of power. She disingenuously declared a quarantine to keep away the press in the aftermath of the Branch Davidian catastrophe in Waco, which incidentally is the only known use of quarantine authority by a US governor in the last century. Richards' quarantine was done in secret, but Gov. Abbott has now openly threatened to use this same authority to coerce a local city council to reinstate a repealed ordinance. Really?

As Sir Thomas More asked of his accusers, "when the last law was down, and the Devil turned 'round on you, where would you hide, ... the laws all being flat?"

Austin Mayor Steve Adler declared that he took Gov. Abbott's entreaties as evidence that state government wants to "help" - a reaction that could only be taken as tongue in cheek. But what if Gov. Abbott did want to help solve homelessness?

For starters, the governor could begin to prioritize grants for housing, directing available funds for that purpose and working with Texas' congressional delegation to champion the cause of more federal housing grants from HUD. But as Texas Monthly's Christopher Hooks lamented:

There’s a notable and telling omission among the list of agencies Abbott has said will “help” Austin with its problems: the Texas Department of Housing and Community Affairs, the state agency that helps build affordable housing. There’s been no real effort from state government to actually aid the city here, just a demand that they “fix” things.

He could work with legislators heading into the 2021 legislative session to develop funding packages for housing, mental-health services and prisoner reentry to help mitigate the causes of the problem. The state could fund urban "rest stops" like those on the side of the highway where homeless folks could shower and use the restroom. The governor could use his bully pulpit and personal appearances to fundraise for housing programs like Austin's Community First (at least, in between campaign fundraising for a race that's three years out).

That's what state-government leadership would look like on this issue. What we're seeing, everyone will notice, looks very different.

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.