Made-up informants, prosecutor misconduct, reacting to crime in Dallas, and other stories

Here are a few odds and ends that merit Grits' readers attention on a big football weekend:

How deep does the rabbit hole go in Houston PD narcotics scandal?
Gerald Goines, the Houston PD narcotics officer at the center of the scandal surrounding a botched drug raid based on a fabricated informant, allegedly set up innocent people in other cases. In the latest episode, Goines alleged mendacity combined with what the post-conviction division chief at the DA's office called a "quintessential" example of prosecutor misconduct. In related news, Houston PD paid $1.2 million to the family of a black man shot by one of its officers in 2014 to settle a wrongful death suit.

San Antonio crime lab to use disputed DNA mixture software
San Antonio PD crime labs announced they will begin using STR-Mix software to analyze DNA mixture evidence. That's fine, as long as they analyze samples with a maximum of three contributors, with 20 percent or more of the sample coming from suspect in the case. A federal judge in Michigan recently declared the software shouldn't be used for more complicated mixtures. And while her ruling doesn't apply in Texas, the debate throws the future of the STR-Mix approach up in the air for more complicated mixture evidence.

Audit: Dallas PD too easily dismisses, loses, or ignores citizen complaints
An audit of the Dallas PD complaint process skewered that agency's handling of misconduct allegations, reported the Dallas Observer. The audit "criticized the department for allowing sergeants wide latitude in deciding whether to investigate, or even document, a complaint. Anonymous or third-party complaints were ignored, a practice that has been criticized by the Department of Justice."

Ready, fire, aim! Dallas' reaction to recent murder uptick
A Dallas Mayor's task force recommended non-policing methods of crime reduction, mostly blight remediation, improved lighting, training formerly incarcerated people as "violence" interrupters, and improving mentor programs in schools. These are all feel-good programs, and if crime goes down in their wake, Dallas pols can take credit. Notably, though, this article from the New Yorker on interpreting crime data should be required reading for everyone participating in the debates over Dallas crime rates. While every murder is a tragedy, from a statistical perspective, because the numbers involved are relatively small, annual fluctuations may amount to just noise. Regardless, if crime goes down next year, those same voices will attribute the reduction to their own actions. If crime increases, they'll call for the chief's head on a platter. We've seen this movie countless times; both reactions demonstrate hubris. The media and local politicians in Dallas are reading way too much into relatively limited data.

Progressive prosecutors and sex crimes
This Appeal article on how "progressive prosecutors" treat sex crimes cases resonates as the Travis County Democratic District Attorney primary debate has largely centered around these questions. The incumbent, Margaret Moore, has been criticized on the campaign trail for her record and announced she wouldn't attend an upcoming candidate forum on the topic.

Unspeakable tragedy for Atatiana Jefferson's family
Both the mother and father of Atatiana Jefferson, the woman killed by Fort Worth Police last fall while she was babysitting her 8-year old nephew, have died since her tragic death. At the time Jefferson was shot, she had moved home with her mother to become her caretaker as her health declined. Her mother died  on January 9.

HPD shoots 4 so far in January, one unarmed
Houston PD officers have shot four people since the beginning of the new year. One of them was unarmed.

Mental health first response
KUT has an update on changes in progress at Austin PD related to how mental-health calls are handled. The City Council funded a new system to have non-police responses to many suicide and other mental-health-related calls, but the details haven't been ironed out and it hasn't rolled out yet. In related news, the Texas Court of Criminal Appeals has published a statewide Mental Health Resources Guide.

Barriers to reentry
"There is a deep level of material hardship in the first year after leaving prison, especially among those with the most physical and mental health traumas," wrote Bruce Western in this research brief from the University of Wisconsin. In related research, Texas was one of the four states in which prisoners were tracked in this reentry study out of Florida State.

Politics of criminal justice
Read an interview with Rachel Barkow on the politics of criminal justice.

Should Texas switch to non-partisan judicial elections?

The Texas Judicial Selection Commission, created by the Legislature last year, says Lone-Star-State judges should be selected in non-partisan elections. The immediate concern is that experienced judges are being ousted by less experienced ones in partisan sweeps, leaving the state's judiciary bifurcated along party lines. With the state's larger counties and some appellate seats turning blue, the state's high courts and most appellate bodies are still controlled by Republicans.

Maybe it's true Texas is losing experienced judges. OTOH, for example, a partisan sweep enabled Harris County to settle its bail litigation, which the old judges had dragged out for years, spending many millions on unnecessary legal fees to oppose bail reform. Certainly, Harris County courts gained more diversity in 2018. And some of those ousted judges allegedly had suborned misconduct among the magistrate judges. So I'm not sure that particular round of turnover was something we really to truly lament.

And how many judges are we really talking about here? According to this chart from the commission's report, 19% of judicial races turned over in 2018.

Much of that volume was due to Harris County (plus Fort Bend and a handful of others); those seats likely won't turnover as much in the future. So there will be momentary upticks in judicial departures as various jurisdictions flip from red to blue, then the incumbent advantage will likely continue to hold going forward. In the meantime, let's keep in mind that 81 percent of appellate and district judges held onto their seats in 2018, so it's not exactly like the barn's on fire and all the experienced judges fled!

Also worth mentioning: Fewer than half of those who left the bench in 2018 lost an election; many left on their own or hit mandatory retirement.

Grits doesn't necessarily disdain non-partisan elections. In a vacuum, they're a better idea than partisan ones. Make Grits Philosopher King and I'd probably prefer some sort of nonpartisan nominating commission. So I consider non-partisan elections a step in the right direction.

But this isn't happening in a vacuum. It's being suggested to stave off future partisan transitions in urban counties like we witnessed in 2018. That doesn't make it a bad idea. But since Democratic judges have been more supportive of bail reform, in particular, the move could slow progress in that arena.

In the end, Grits would probably support non-partisan elections just to get Court of Criminal Appeals races out of the Republican primary sooner than later. But the timing of the suggestion is another reminder that hypocrisy is the tribute vice pays to virtue.

Dallas PD pursuit policy wouldn't have allowed DPS pursuit that lead to shooting, qualified immunity prevents prison-conditions suit, court records lost to history, and other stories

Let's clear some browser tabs. Here are a number of recent items that merit Grits readers' attention:

Dallas PD pursuit policy wouldn't have allowed chase that led to DPS troopers shooting kid last summer
Video was finally released from the shooting by DPS troopers deployed in Dallas last summer. Troopers engaged in a pursuit when a driver failed to pull over for failure to signal a lane change, then shot him in his driveway. The driver was armed but body cam footage doesn't show him firing his weapon or aiming it at police. Notably, the pursuit would not have been allowed under the Dallas PD pursuit policy, which forbids pursuits except for felonies involving violence, providing support for other law-enforcement agencies' pursuits, if the suspect fired or displayed a firearm in a threatening manner, or when "the officer reasonably believes that the immediate need to apprehend the offender outweighs the risk to any person of collision, injury or death." Otherwise, "all other pursuits are prohibited." This kid would still be alive if the Dallas PD policy were followed - a great example why state troopers shouldn't be tasked to perform urban policing.

5th Circuit: Qualified immunity prevents valid prison-conditions suit
Qualified immunity prevented a TDCJ prison-conditions lawsuit from going forward in the 5th Circuit, reported Andrew Cohen via the Brennan Center. The 5th Circuit ruled that the evidence indicated officers acted with “deliberate indifference” and subjected the plaintiff to a “substantial risk of serious harm” by housing him in a cell smeared floor to ceiling with feces and mocking him when he complained. But they threw the suit out, ruling defendants were protected by qualified immunity.

Historical court records 
Trying to use criminal-court records to investigate lynchings in Denton from the 1920s, a grad student discovered many had been lost to history.

Reforming parole
Right on Crime has produced a new policy brief on "Modernizing Parole Supervision." See also, new parole reform proposals out of West Virginia.

Bias, fairness, and risk assessments
It's a relatively simple matter to adjust risk assessment scores to reduce disparities in false positive rates by race, declared criminologist Andrew Wheeler. But the results exacerbate false negatives (i.e., times when the assessment fails to identify a high-risk person). And there are other vectors of fairness, by which risk assessments may be reasonably judged.

Reconsidering recidivism
Check out an academic critique of recidivism rates as a reform metric, see a summary of the analysis from The Crime Report. Grits agrees with much of her critique and thinks one can even go further. In high-incarceration-rate states like Texas and Oklahoma, recidivism rates are lower because we incarcerate so many low-risk people. Reforms that reduce incarceration of low-risk folks, in that environment, as a result can cause recidivism rates of those who remain to rise.

Conflating federal/state systems to demagogue vs. bail reform

The Dallas Morning News editorial board issued one of the most ignorant, counter-productive commentaries on bail reform I've seen in a while. They announce that:

there is another type of bail “reform” that is growing into a national movement championed by some district attorneys. This type of bail reform drives toward the uncritical release, on outrageously low bonds, of people accused of violent crimes who have a history of violent behavior.

This, of course, is a bald-faced lie. They quote no district attorneys suggesting this because none of them ever have. But that doesn't stop them from pretending that Dallas DA John Creuzot somehow merits criticism on this vector:

Dallas District Attorney John Creuzot has been a leading voice for bail reform, just as he has led Dallas in the embrace of refusing to prosecute low-level crimes. We don’t believe his approach is the most effective to keep Dallas secure, especially in its most vulnerable communities.

The editorial board would like to pretend they support bail reform, just not John Creuzot's brand. What bail reform do they support? None, really. They're engaging in misdirection, attempting to blame bail reform for the failings of the status quo. 

They were reacting to a column by the US Attorney for Texas' Northern District whose headline posed the demagogic question, "Why are many violent criminals back on the streets shortly after being arrested?" Given that crime rates remain at 40-50 year lows, that's awfully phony framing. Despite an uptick this year, on the whole, Dallas residents remain less likely to be victimized by violent crime than at any time in decades. Yes, in a city with so many people, one can always identify scary anecdotes. But overall, crime rates are way down.

The USA's commentary and the Dallas News' editorial board's less nuanced, more ham-handed, and fundamentally stupider assessment both hinge on a misunderstanding of the differences between federal and state law on bail. IMO, the USA intentionally elided these differences. The Morning News' editorial board appeared simply ignorant.

Here's the deal. The federal system doesn't use money bail at all. Instead, there exists a concept called "preventive detention," so most people are simply let go pending trial. OTOH, if they're deemed an imminent danger to the public, defendants may be detained without bail. That's not how it works under the Texas Constitution, Sec. 11a, which in fact forbids preventive detention in all but a handful of circumstances. Everyone else is entitled to money bail, and if they can afford to pay, they are released.

The case of David Cadena, which the Morning News portrayed as the poster child for their stance, offers a case in point. He didn't meet criteria for preventive detention and so he was granted bail for his alleged violent offenses, posting $20K and $25K in two separate incidents.

This is how the system has worked forever: If you have money, you get out of jail; if you don't, you stay in. That's not the fault of bail reform, that's the old-fashioned money-bond system at work. Certainly it's not a function of anything John Creuzot did!

The USA and the Dallas Morning News both pretend that judges had the option of detaining Cadena indefinitely when, in reality, setting bail was required. 

Meanwhile, neither the USA nor the editorial board deny there's a big problem with low-level offenders languishing in jail  because they can't make bond. But they blow past the issue to speciously blame bail reform (which hasn't happened in Dallas) for violent crimes happening under the legacy system. That's disingenuous.

Grits is unsure why a federal prosecutor would stick their nose into these local issues except perhaps for a Trump appointee wanting to score political points against urban Democrats. But the Dallas News routinely offers the worst coverage in the state on all criminal-justice topics, harking back to '90s-era demagoguery in both news and opinion pieces far more frequently than other Texas MSM outlets. This was par for the course for them.

Texas' natural experiment on marijuana shows decriminalization brings relief to an over-strained system

The number of marijuana arrests in Texas has plummeted since June, when the state legalized "hemp" and, as a result, accidentally erected new barriers to prosecuting marijuana cases, de facto decriminalizing pot in some jurisdictions. At the time the law passed, Texas crime labs had no way to distinguish between legal hemp and illegal marijuana.

The result, reported Jolie McCullough at the Texas Tribune: The number of new marijuana cases filed by prosecutors plummeted by two thirds, from an average of 5,900 per month last year to 1,919 in November.

Think about that: Thanks to this happy accident, nearly 4,000 fewer people per month will be prosecuted. Less widely discussed: Texas crime labs will receive nearly 4,000 fewer marijuana samples per month for testing. That's roughly 48,000 fewer per year.

This reduction in volume comes at a time when Texas crime labs, especially at the Texas Department of Public Safety, face extreme backlogs, with the biggest backlogs by far in testing seized drugs and DNA evidence.

Last year, state Rep. Terry Canales voiced complaints about outlandish wait times for DPS to test evidence in the Rio Grande Valley, complaining that in many cases it takes years to test the evidence.

If justice delayed is justice denied, it's surely being denied in cases where crime labs require years to test evidence. Imagine you're a defendant awaiting trial who can't make bail. Who wouldn't accept a plea deal for anything other than a long prison sentence? Certainly for the 4,000 people per month who would have otherwise received a misdemeanor marijuana charge, there's an enormous incentive to plea rather than wait months or years for lab results to come back. 

Given the state of crime lab delays, Grits would argue it would be irresponsible to ramp up the number of user-level marijuana cases to past levels because it soaks up so many resources the crime labs need for more serious crimes. (There are other reforms needed to solve crime-lab backlogs, but if they're not going to embrace them, policy makers should embrace every opportunity they have to reduce the volume of crime-lab submissions.)

In addition, to the extent that a significant proportion of those 4,000 pot cases would have been people deemed indigent and entitled to have the county appoint them a lawyer, this happy development has reduced local indigent defense costs at a time when caseloads remain high despite dropping crime.

Prosecutors in Harris County and elsewhere have lately complained of high caseloads. Well, reducing misdemeanor caseloads by nearly 50K per year statewide surely helps with that problem.

In addition, since marijuana possession is a Class B misdemeanor, most of those 4,000 people per month would have been booked into the county jail upon arrest. (A few jurisdictions take advantage of police authority to cite pot possessors instead of arrest them, but overall, not many.) Local jail costs average around $60 per day, but that's somewhat misleading. Most people arrested for pot get out in a relative short time. However, the first day is more expensive because jail-intake processes require medical and mental health assessments, pretrial services questionnaires, immigration checks, DNA swabs, etc.. Estimates I've seen put first-day costs closer to $150-$200 than $60.

So reducing the number of marijuana prosecutions - and hopefully, also arrests - translates to significant, welcome relief for an over-strained system across many vectors.

This impromptu natural experiment has demonstrated that marijuana can be decriminalized in Texas with no noticeable detriment to the public weal. Certainly there's no evidence public safety has been harmed in the least by this radical reduction in pot prosecutions. Meanwhile, nearly 4,000 fewer people per month are subjected to the expense and indignities of arrest for a "crime" most Texans fundamentally do not believe should be one.

Grits would be interested in two datapoints that weren't covered in Jolie's story. On the first - which prosecutors are still pursuing marijuana cases - we got anecdotal info:

Without public lab testing available, some police agencies turned to private labs — but at a cost. In North Texas, Frisco and Plano police said last month that they continue to pursue all suspected marijuana offenses, submitting cases to private labs for testing. The Collin County district attorney now requires lab results for misdemeanor cases, according to Gail Leyko, the Plano Police Department’s legal adviser. She said all marijuana cases are still being prosecuted, but it costs the city hundreds of dollars more per test to go through private labs that can determine THC concentration.

Grits couldn't figure out how to query OCA data to identify which prosecutors are still pursuing pot cases, but I'd sure like to know. In an era when more prosecutors than ever are being successfully challenged at the polls, that's information voters could use to judge the wisdom with which prosecutorial discretion is exercised.

My second question about this news: Jolie is counting how many marijuana charges were brought by prosecutors. That's a different number from "how many people were arrested for marijuana?" Those arrest data aren't publicly available yet, but I wonder if folks are still being arrested and taken to jail over alleged marijuana possession in greater numbers than we see here, only to have prosecutors dismiss or refuse to file charges? 

Grits considers this welcome news, but there's still a lot we don't know: Who is still being arrested, and by whom? Who is still being prosecuted, and by whom? Who is being arrested but not prosecuted and what happens to them? ¿Quien sabe?

Finally, the question arises, how should the Texas Legislature respond to this from a policy perspective? Governor Abbott has made it clear we'll see no special session on the matter, so Grits would expect to see these low arrest numbers continue, or even drop further, in the near future, perhaps upticking later in the year as a few jurisdictions purchase the expensive equipment needed to distinguish "hemp" from "marijuana" (which, of course, are the exact same plant).

So by the time the Legislature convenes, we'll have been through 18 months of radically reduced marijuana enforcement, approaching zero in some jurisdictions, including some of the larger ones. If all the Chicken-Little Drug-Warrior proclamations turn out to be BS and the sky hasn't fallen, the 87th Legislature would be a perfect opportunity to shift pot penalties to either a civil penalty - as the GOP platform suggests - or a Class C misdemeanor, as Gov. Abbott has endorsed.

To be clear: Personally, I'm one of the 61 percent of Texans who would legalize pot tomorrow; this summer I witnessed the Canadian model first-hand and considered it a brilliant success. But Grits doesn't anticipate Texas' statewide leadership in 2021 will be ready to go that far.

Even so, it would be a mistake to go back to the bad old days of 6,000 pot prosecutions per month. Ramping marijuana prosecutions back up would put undue pressure on crime labs, boost counties' indigent defense costs, exacerbate high prosecutor caseloads, and incur unnecessary county jail expenses. Local officials should continue deprioritizing marijuana cases and, when they meet in 2021, the Legislature should simply take arrests off the table for such offenses altogether.

RELATED: From the SA Express News, DPS state troopers have inconsistent policies related to people for pot possession, arresting them in some counties and issuing citations in others.

CORRECTION/CLARIFICATION: This post has been edited to correct a mistake I made interpreting data on crime lab backlogs. The post originally estimated backlogs of 2.5 years for drugs and 3.5 years for DNA. But I had mistaken the number of backlogged cases for wait times in days. That said, the underlying news story from which the crime-lab backlog chart was drawn quoted the Texas House Transportation Committee Chairman Terry Canales declaring that, "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." So the overarching point about crime lab backlogs remains valid.

Driver killed by Temple PD at traffic stop was unarmed, fingerprint fallibility, and a New Year's #cjreform reading list

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

Driver killed by Temple PD at traffic stop was unarmed
Michael Dean was unarmed when he was shot by Temple PD last month, according to the latest reports. Witnesses say he was beaten up by police before his death.

Fingerprint fallibility
How easy is it to become an "expert" fingerprint examiner? My neighbor Jordan Smith, writing for The Intercept, gave a great account. (Spoiler: Not hard.) The justice system hasn't come close to coming to grips with the implications that traditional forensic methods like fingerprints, bite marks, or hair-and-fiber comparisons have no scientific basis and are wrong far more often than jurors are told. It's like the 2009 National Academies of Sciences report on forensics set off a slow-motion explosion of which most of the public and even most of the legal profession remain unaware.

Defining #cjreform in red-state Kansas
Conservative Republicans in Kansas want to shift budget resources to mental health and drug treatment services  outside the justice system.

For the reading pile
Here are a few academic articles that go on the reading list:

• The Missing Link: Jail and Prison Conditions in Criminal Justice Reform
• The Problem of Problem Solving Courts
• Incapacitating Errors: Sentences and the Science of Change
• Undeliverable: Suspended Driver's Licenses and the Problem of Notice
• Challenging Electronic Systems' and Devices' Ability to Produce Reliable Evidence
• Hiding Homelessness: The Transcarceration of Homelessness
• Build Momentum for Police Reform through Organizational Justice
• Bias, Trust, and Trustworthiness: An experimental study of post-justice system outcomes
• Diversion in the Criminal Justice System: Regression Discontinuity Evidence on Court Referrals (Harris County)
• Encouraging desistance of crime
• An Intellectual History of Mass Incarceration

More on victimization at Texas youth prisons, prosecutor loses immunity over wrongful conviction, broken-windows theory built on a hoax, and other stories

Happy new year, folks, let's clear a few browser tabs with a quick roundup of stories that merit Grits readers' attention:

Looking forward to 2020
Michael Barajas at the Texas Observer outlines five debates he anticipates will dominate criminal-justice politics in Texas in 2020. Give it a read.

More on victimization at Texas youth prisons
After Grits earlier reacted to a new federal report on sexual victimization in Texas youth prisons, other reporters are following up. Here's a piece from Tommy Witherspoon at the Waco Tribune Herald, and another from Keri Blakinger, who just left the Houston Chronicle to join the Marshall Project. For related reading, see the new annual report from the Texas Juvenile Justice Department, and 2018 statistical data on juvenile probation in Texas.

Sunset time
Recently Grits analyzed the Commission on Jail Standards self evaluation for the Sunset Commission. Here's the one for the Texas Commission on Law Enforcement.

Also, Seana Willig, formerly of the State Commission on Judicial Conduct and now chief disciplinary counsel at the State Bar of Texas, analyzed the impact of Sunset review on lawyer discipline. Here's the Commission on Lawyer Discipline's latest annual report. Criminal law was the most common source of grievances among more than 2,000 lodged statewide last year (p. 20). The "most common allegations were neglect, failure to communicate, and complaints about the termination or withdrawal of representation." Also, 115 attorneys were discipline for stealing money from their clients or failing to return an unearned fee (p. 13); 15 of those were criminal defense attorneys

Prosecutor loses immunity over politicized wrongful conviction
Grits must admit I have not followed the back and forth between Judge Suzanne Wooten and former Collin County DA John Roach, but I'm amazed to read that she has overcome prosecutors' immunity claims in federal court. Reported Angela Morris at Texas Lawyer:

Wooten notched a win in federal court Monday after a judge ruled prosecutors involved in her wrongful conviction cannot claim qualified immunity from her wrongful prosecution claims. That ruling came from Judge Amos Mazzant of the Eastern District of Texas.

I'm flagging this to read the opinion later. Sounds like they only were eligible for qualified immunity because the DA bypassed local law enforcement and performed the investigation themselves, then they WAY overreached and voided even "qualified" protections.

Counter-intuitive outcome from justice-system involvement

Contact with the justice system increases delinquency among youth, says a study out of the UK analyzing twins.

The 'Mass Supervision Crisis'

See coverage from The Atlantic on the politics and policy of parole.

Busted! Broken-windows theory built on a hoax

Ever heard of the "broken windows" theory? That if one window is broken, people will see it as a sign of neighborhood disorder and break nearby windows? An entire generation of law-enforcement executives based their street-level strategies on the idea. But it turns out, in the original study on which James Q. Wilson and others based this now-mostly-rejected notion, the researchers themselves broke all the windows! OMFG! Could anyone draw a less valid conclusion from such a result? How much damage has been done, how many hundreds of thousands needlessly arrested, because of this politicized misuse of shoddy scholarship? That makes me incredibly angry.

TX county jails seek to avoid, fail to cooperate with investigations into medical deaths, says Jail Standards Commission's Sunset 'self evaluation'

Grits took time this morning to read through the Texas Commission on Jail Standards' self evaluation created as part of the "Sunset" process, through which the Texas Legislature evaluates agencies' functions every few years. For my own purposes, I took a few notes. Here are the highlights:

For starters, jail capacity in Texas has increased more than five-fold over the last 36 years, during which time the state's population didn't quite double: "From 1983 to date, the number of county jail beds has increased from 19,000 to 96,578." About 2/3 of those beds are full at any point in time.

Evading death investigations through creative, post-hoc dismissals
TCJS identified a recurring pattern where some counties claim someone who died in their custody had been released in order to avoid an outside investigation. The problem arises when:

the county claims they have released from custody because a judge has dismissed the charges. While the inmate technically may no longer be in custody, there is a very real possibility that the events that contributed to their death occurred while they were in custody and preceded their PR Bond or transfer to the hospital. By not reporting the death, the jail avoids the required criminal investigation. This could be viewed as circumventing the intent of the legislature and existing statutes.

The agency has requested an Attorney General's opinion to clarify the issue, but that "does not guarantee a solution."

'Several times per year' jails seek to conceal medical records from TCJS death investigators
Some local jails, particularly those who contract out medical care, have sought to prevent TCJS from accessing inmate medical records as part of death investigations. Because part of their role is determining whether jail staff followed physician's orders, this would keep them from providing meaningful oversight in such cases. From the report:

Several times per year, the agency will encounter opposition when requesting inmate medical records. This most often occurs when dealing with a facility that utilizes a contract medical provider. Other situations in which this has been an issue is when a facility is using a contract provider for mental health services. When this occurs, the provider most often cites HIPAA as the reason for their reluctance or refusal to provide access. In other cases, the provider will claim that the creation of these records are “proprietary” and not subject to disclosure. When either of these situations is encountered, it slows down the process of trying to determine if there were any violations of minimum standards in an extremely important area. Failure to provide adequate healthcare can have dire consequences, up to and including death. Unfortunately, we have determined on several occasions that jails have failed to follow physician’s orders, and being able to identify and correct this issue is extremely important. Current state law and the federal act regarding disclosure of medical records provides an exemption that we have been able to utilize in the past when this issue arises. However, there is still opposition as entities misinterpret (intentionally or due to lack of knowledge) this exemption and slow down the resolution of complaints and investigations. (emphasis added)

Dealing with rulebreakers more quickly
The agency tends to focus on administering technical assistance to jails that violate rules as opposed to using punishments to provide incentives. "Over the past decade, the agency has expanded the amount of technical assistance provided to jails to reduce potential areas of non‐compliance. This approach has been well received by county officials and has allowed staff to focus on larger issues while correcting minor ones at the time of inspection." (See here for examples of inspection reports.) But as a result of recent legislation, counties will be expected to regain compliance more quickly following rules violations:

When first created, the agency’s enabling statute allowed a county up to one year to regain compliance. This provision has recently come under criticism as being too long. One of the bills from the 86th Legislative session now requires facilities that are operated by a private vendor and fail an inspection to appear before our board at the next regularly scheduled meeting. These meetings take place on a quarterly basis, which significantly reduces the amount of time we would expect a facility to remain in non‐compliance.

How other states handle jail oversight
The report includes an excellent, three-page table (pp. 6-8 in the paginated document; pp. 8-10 of the pdf) describing how other states handle oversight of local jails. It's a very nice little compendium of the agencies, enabling statutes, and basic jail oversight functions across states.

Agency as 'referee'
State government regulates jail conditions, but local Sheriffs operate the jails and county commissioners courts provide their funding. This disconnect among responsibilities can inject the jail standards commission into local political fights:

County jails are rarely a priority for local government but represent one of the largest liabilities for them. This can create friction at the local level and prevent effective and constructive communication between the sheriff, who is responsible for the jail’s operation, and the Commissioner’s court, which is responsible for funding it. These are local issues created by local decisions, but they directly impact the effectiveness of the program. With a goal of having all jails operate in compliance, the agency is sometimes placed in the unenviable position of referee in our attempts to meet our goal.

Training new Sheriffs a particular problem
From the agency's perspective, every newly elected Sheriff amounts to a role of the dice. They all run on a "keep us safe" political platform that pretends they're out leading posses chasing bad guys and barely mentions the jail management function which, for most of them, is the most significant and time consuming part of their job. From the report:

Every four years, there is approximately 33% turnover of the sheriffs from the previous cycle who are taking office for the first time. Depending upon their background and previous experience, their understanding of jail operations and the role of the agency varies greatly. Early outreach and education occasionally alleviate some of the issues but not always and not with all the issues.

Shift to electronic reporting despite county opposition
The agency will finally stop receiving paper reports that have to be re-typed into spreadsheets and have counties begin providing statutorily required data electronically.

With the passage of HB3440 (86R) by Caprigilone, over the next two‐year cycle, the agency will be phasing in electronic reporting. This will consist of counties submitting to the agency each month a “locked” excel spreadsheet containing the statutorily mandated data. Prior attempts had been met with resistance from counties, but it is no longer feasible or even responsible to have one FTE assigned to nothing but data entry in 2019. By having the counties submit this data electronically, the FTE previously assigned will now perform quality control checks and simply import the data into the agency database. From there, the data can be used to run multiple reports that we are required to create. It is anticipated that the FTE previously assigned can now assist with other duties and functions of the agency as assigned.

Disconnected county computer networks prevent real-time data analysis
The agency is frustrated that legislators expect them to be more closely tracking data from local jails than they are technically able to at the moment, not just because of statutory reasons but because of technical issues related to linking disparate computer networks:

Efforts to educate members of the legislature about our ability to carry out certain tasks they would like accomplished are sometimes met with “dismissiveness.” Most of this is related to data collection and information submitted by the counties. At this time, there is no central database or portal into which counties can enter and submit information “real time.” The monthly population reports are simply a snap‐shot of the inmate population on the first of the month. The other reports required by statute are daily counts but deal with specific segments of the inmate population not the entire population. Part of the issue with this inability to tie the 240 county jails into a network is that each county has purchased or developed their own software with varying levels of compatibility and capability.

Low jailer pay degrades professionalism
The report directly linked a lack of professionalism among county jail guards to low pay.

With each county jail owned, funded, and operated by local government, they are the ones that decide how much to allocate for jail staff salaries. In an overwhelming majority of counties, the starting pay is a major drawback and jails have a difficult time recruiting and retaining qualified staff. This is an underlying factor in almost every instance of non‐compliance and makes it difficult for Jail Administrators to manage and operate a jail. This results in a wide range of professionalism amongst the jails that we regulate. This in turn requires agency staff to provide additional technical assistance to county jails to assist them in operating safe and secure facilities.

How 'jails have become mental hospitals, and jailers have become social workers'
The agency suggests additional training for local jailers on mental health, especially in rural counties, but they recognize the mental-health problem is bigger, more structural, and fundamentally budget-based than a training-only response can solve:

One area that we are exploring for possible expansion is mental health training. Interaction with an individual with mental illness is challenging even in the best of circumstances. Once a person with a mental illness enters the criminal justice system, that challenge is exacerbated by a factor that is simply hard to quantify. With insufficient mental health providers to service the general public, the need in jails is even greater. With an estimated 30% of the inmate population either diagnosed or exhibiting signs of mental illness, the demand far exceeds supply. By default, the result is that our county jails have become mental hospitals, and jailers have become social workers. Neither the facilities nor the staff that operate them are properly equipped to handle this continuing issue, and no long‐term solution is in sight.

"Difficult and unpopular would be the two most accurate words to describe any possible solution" to overuse of jails for mental health purposes, the report opined.

Administering "Prisoner Safety Fund" now a key agency function
In addition to its traditional functions, the agency now lists as one of its six key functions the administration of the "Prisoner Safety Fund," which state Rep. Garnet Coleman created under the Sandra Bland Act in 2017. That fund had its authority expanded earlier this year. Here's what it does:

Prisoner Safety Fund. The 85th Legislature created the Prisoner Safety Fund as part of SB1849(85R). The original purpose of the fund was to assist counties that operate a jail with a capacity of 96 beds or less with meeting the technology requirements set forth in the bill. There were two areas specifically targeted. The first was the ability to verify observation checks of the inmates by staff in high‐risk areas by an electronic means. This can be accomplished via camera or electronic sensor. The second was the provision to allow access to mental health services 24 hours a day via tele‐mental health services. The 86th Legislature amended the criteria in HB4468(86R) and increased the number of counties eligible to those that operate a facility with a capacity of 288 beds or less.

So the Legislature has created a fund specifically to prevent jail suicides and facilitate provision of mental health services. That could afford some interesting opportunities going forward, although each new funding battle will be a struggle. Certainly the problem hasn't been solved yet, as an AP report emphasized recently. See a detailed discussion of the (relatively modest) grant program beginning on page 71 of the pdf.) Most of the money in the fund has not been spent yet.

Records maintained by the Jail Commission
For those seeking records from the agency, here's a good description of what they have:

The Assistant Director authenticates the reports and data submitted. The following is authenticated to ensure accurate reporting of measures:

(1) Agency Calendar. Each entry is  required to have an associated memorandum prepared by the staff member involved in the activity. The staff member submits these memorandums to the Assistant Director, who reviews each entry on the calendar to ensure that a memorandum is available.  

(2) Inspector Activity Log. Each inspector is required to submit a monthly activity report. The Assistant Director compiles these reports into the Inspector Activity Log and verifies them for accuracy by reviewing a master log maintained by the Assistant Director. Any discrepancies are checked against the county’s inspection files, which are maintained in the agency file room. 

(3) Planning and Construction Log. The planner submits a log. Any activity that is designated as a key measure is reviewed by the Assistant Director to verify that the activity is denoted on the calendar or monthly activity report and that a memorandum is available. 

The Planning and Construction Log is maintained by the Planning and Construction Division and provided to the Assistant Director no later than the fifth day of the following month. The Planning and Construction Division notes the following:

1. Technical Assistance provided to counties on site. 
2. Occupancy Inspections conducted (pass or fail should be noted).
3. Special Inspections conducted. 
4. Training Attended/Conducted. 

Memorandums are submitted in order to document activities designated as key measures.

On pages 16-17 of the pdf is a list of all the datasets maintained by the agency. (Many of these are available on their website.)

Also, some researchers may find it useful to see the information commissioners are given at their meetings:

For each Commission meeting, a reference book is created that includes information on any issue that comes before them. In addition, this book contains current financial statements, copies of any audits or reviews that are periodically conducted by outside entities, and a listing of staff activities during the previous three months. There is also a section that contains the compliance status of all jails under our purview, number of complaints received against jails under our purview, population trends, and construction projects.

Forgotten history
Texas law has mandated safe and suitable jails since the 1920s, but the state didn't begin inspecting jails until 1969. That year, the federal court intervened in "almost 20" local Texas jails because of poor conditions. The Legislature changed the law to allow inspections. (Really, they removed a prohibition on inspections.) After that, "inspections were conducted of all 254 county jails, [and] all but six were found to be in violation of state law."

In 1974,  a survey revealed that 68 percent of jails did not provide 24-hour supervision; 121 left prisoners alone at night; 40 percent "slept prisoners on the floor."

The Legislature formally established the commission in 1975. By 1978, "The Commission became mired in controversy regarding funding, conflict of interest, and agency abolishment." However, 1979 witnessed, "Acceptance of Texas Minimum Jail Standards by Federal Courts and drastic reduction in federal court intervention. The Commission issued the first notices of non‐compliance [later that year], marking the beginning of enforcement efforts."

Inmates from outside Texas
A few county jails house contract prisoners from other states, in particular, "New Mexico, Arkansas and Idaho." New Mexico and Arkansas Grits can perhaps understand as a function of convenience,  proximity, and the logic of rural resources. The Idaho inmates, though, constitute their own mostly forgotten story; they're housed in a privately run facility down in Eagle Pass and the contract has caused lots of problems.

In addition, a few counties contract with private-prison companies to manage immigration-and-other-federal cases:

several federal agencies such as the Bureau of Prisons, Bureau of Immigration and Customs Enforcement, and the United States Marshal’s Service, all contract for bed space that falls under the Commission’s regulatory authority and is subject to inspection. Included in this number are seven (7) privately operated facilities and the companies that operate them through inter‐governmental agreements between county and municipal governments.

Inmate and family complaint procedures
Starting at the bottom of page 47 of the pdf is a detailed discussions of procedures related to inmate an family complaints which may be useful to those who, you know, want to complain. However, one can't file a complaint with TCJS before first going through the local jail's grievance process. They're an oversight agency, not the first point of contact. (If you're going through this process, Grits would recommend contacting Diana Claitor at the Texas Jail Project, who has forgotten more about the subject of jail-grievance processes than Grits has ever known.)

AG punted authority to approve contract-inmate schemes to TCJS
Here's a weird tidbit about jail construction/finance I didn't know. Grits has covered numerous Texas county jails seeking to expand to house immigration detainees and other contract prisoners. But I was unaware that, in the early '90s, the Attorney General's Public Finance Division struggled with this question of

whether the financing of jails or detention facilities of substantial capacity intended to house inmates of governmental entities other than or in addition to those of the sponsoring entity meets the public purpose requirement for the issuance of bonds and other securities.

They decided to punt the issue to TCJS, requiring that the executive director provide a formal letter recommending construction. The commission grants these "if appropriate," but the report doesn't say how appropriateness is judged. It'd be an interesting project to gather all of these through open records to figure out how often speculative contract jails have been recommended and on what basis.

Santa lynched after Ho-Ho-Holdup, a suggestion how to punish everyday police abuses, Abbott's Xmas pardons add insult to injury, and other stories

Grits woke up Christmas morning feeling better than I have any time since last Thursday, when someone slit your correspondent's throat from ear to Adam's apple. That it was, in fact, a surgeon who did this to remove a sizable, cancerous lump should probably absolve him from blame. But the recovery has been a little rough, so in my mind I'm blaming him anyway and telling people who ask that I was attacked by pirates. ;)

Since then, I haven't had much strength for blogging, or even reading, and the missus has taken over holiday cooking duties for the day. But since I'm up and about this a.m., the kids aren't here till noon, and I have some energy, let's clear some browser tabs of items which have accumulated while I've been down:

Abbott's paltry pardons a diminution of executive responsibilities
Gov. Greg Abbott issued seven pardons for ancient, low-level offenses this week. The case details are unimportant. It's a meaningless, cynical maneuver adding insult to the injury of governors largely abandoning their constitutional obligation to serve as a check on excessive sentences and mass incarceration. In the 19th and early 20th centuries, Texas governors took this responsibility much more seriously, pardoning between 6-12% of all current prisoners every year! That's how the folks who wrote the constitution intended clemency to work. Pardoning a handful of petty misdemeanors from decades ago amounts to a timid, pointless debasement of executive clemency authority.

Elderly inmates only a symptom of overincarceration
Grits agrees Texas incarcerates too many elderly prisoners who are no real threat to public safety. But we need parole reform more broadly than just aimed at the elderly and sick; the whole system needs an overhaul.

Big D's Case Management Blues
Dallas County has spent more than $10 million developing court software that's turned out to be worthless and has had to revert to software from the 1980s. And it's not the first time.

Politicize homelessness and you own the issue, sometimes literally
From a strategic, political perspective, the idea that Governor Greg Abbott now operates his own homeless encampment in Austin, for which he possesses no funding nor management expertise, makes me laugh every time I think about it. But for the homeless folk affected, it's no laughing matter.  Gus Bova from the Texas Observer visited some of them and relayed grim stories of extreme poverty during the holiday season. That's the problem with GOP political strategists choosing to politicize homelessness by pretending law enforcement can solve the problems associated with it; real people with real lives are affected and all the preening and posturing won't ever mean nearly as much to those folks as a place to live.

Jail suicides and the politics of unrealistic expectations
Jail suicides increased in Texas last year, reported the Associated Press. But it's weird to me the writer framed the issue in terms of the alleged failure of the Sandra Bland Act. I don't think anybody who knew the details of what finally passed in the compromised version thought that the bill would automatically reduce them. We mostly got more documentation and investigations conducted after the fact. I agree Texas needs to do more, but the law accomplished quite a few things on several different fronts (see here for details on its effect on Texas' racial profiling data). Calling it a failure on this basis amounts to an uneducated jab, not a serious criticism of the law.

The quickest way to reduce prison suicides
By contrast, in Texas prisons, the number of suicides declined last year, but Keri Blakinger reported that's because they changed the definition and so are counting different things.

Police sued over death in Beaumont
See a report from the Texas Monitor on a new wrongful death lawsuit against the Beaumont PD.

A suggestion for punishing everyday police abuses
I love this idea for a constitutional small claims court tied to police bonuses. Excellent, incentive-laden proposal that IMO should become part of every city's negotiated police contract.

Why more DNA exonerations don't happen regardless of innocence
Amazing to me that 13 states have never had a DNA exoneration. This article accurately identifies why: 1) crappy evidence preservation practices, 2) unreasonably high standards for proving innocence, and 3) judges and prosecutors more worried about preserving their reputations than seeking justice.

Santa lynched after Ho-Ho-Holdup: Cisco, 1927
The Texan has the story of a deadly, failed 1927 bank robbery in Cisco two days before Christmas in which the robbers wore Santa suits. One of them was lynched following an escape attempt by a mob of 1,000 people, a rare example of a white man suffering such a fate. Correction: A commenter provided data indicating about a quarter of lynchings from 1882-1968 were of white people. I stand corrected.

***

That's all I've got in me today, folks. Till next time, have a happy holiday. And take care of each other.

Reasonably Suspicious Christmas episode: The Grinch story "if the Whos were us," plus the policy failure of high fines, examining recent innocence cases, and reviewing Texas' biggest criminal-justice stories of 2019

Here's the December 2019 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted by me and our good friend Mandy Marzullo, of the Texas Defender Service. This month includes a special Christmas poem in the intro! Enjoy:

Here's what's on deck this month:

Intro

• Christmas Poem: "If The Whos Were Us"

Top Stories

• Why high fines and fees are a plague on the criminal-justice system.

Musical interlude: Debtors Prison Blues

• What recent Texas innocent cases tell us about needed policy reforms.

Year in Review: Fill in the Blank

• Bail reform in Harris County
• Abolition of the Driver Responsibility surcharge
• Texas Legislature unintentionally decriminalizes marijuana
• More prosecutors going after cops in police shootings

The Last Hurrah

• Care for seniors makes up half of Texas prison health budget
• Prison supervisor busted in contraband scheme
• How Potter County lost ALL its historic criminal-court data to a ransomware attack and what it means

You can listen to the podcast here or subscribe on iTunes, Google Play, or SoundCloud. As always, I'll order a transcript and post it below the jump when it's ready.

Monday link roundup

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

• From the Baker Institute at Rice: Drug Treatment Gaps in Harris County, Texas
• Texas Tribune: Federal judge aims to get to the bottom of TDCJ heat-litigation lies
• Dallas Observer: Sending social workers to mental-health 911 calls reduces emergency room stays. Readers may recall that Austin funded a similar, not-yet-implemented program in its current budget.
• CNN: Oregon police officers can no longer seek consent searches without reasonable suspicion. Here's the relevant Oregon Supreme Court opinion.

Texas should raze last, large youth prisons in light of high sex-victimization rates

The Bureau of Justice Statistics came out with a new report last week declaring that one in seven youth prison inmates in Texas are sexually assaulted while in state custody, see the Texas Observer's coverage. This confirms based on data what legislators have already heard via anecdote: Texas juvenile prisons are unsafe for the youth incarcerated in them.

The Observer did a good job fleshing out the reasons, which will be familiar to (very) long-time Grits readers: Texas continues to rely on larger facilities instead of following bipartisan, national best practices of using smaller, better-staffed facilities closer to the urban areas where the youths' families live.

It was solely at those larger units that the sex-assault problem was so severe: Four facilities reported that double-digit percentages of inmates in their care said they'd been sexually victimized.

• Evins Unit: 13.5%
• Gainesville: 16.0%
• McLennan Co.: 16.1%
• Ron Jackson Unit: 14.0%

Some of this has been reported in the local press but this report reminds us that the problem has systemic roots.

By contrast, nationally, the new survey found that sexual victimization reported in juvenile justice facilities declined. The state-run Texas units were among a handful of outliers.

In addition to high rates of violence and sexual victimization, employee turnover at Texas youth prisons are the highest at any state agency, and employees describe a nightmarish work environment.

Over the last decade, Texas has closed most of its youth prisons, regular readers will recall, with youth-inmate populations down to 786 from more than 5,000 kids 12 years ago when the youth decarceration effort began.

Community-based responses are more expensive per kid, but more effective and less costly in the long run. And they aren't prone to large proportions of youth in their care being sexually victimized.

It's worth mentioning, since Texas began decarcerating youth prisons, reducing those held by the state by more than 80 percent, juvenile crime by all measures has continued to decline. Even though a handful of those released committed serious offenses, juvenile-crime rates plummeted and the state overall became a safer place.

Since Nate Blakeslee first broke the story that Texas Youth Commission staff were molesting youth back in 2007,  Texas has tried everything to reduce sexual victimization rates at youth prisons except to follow expert advice to abandon large youth prisons altogether. In 2007 when these allegations first arose and the Legislature intervened, they created a "blue ribbon panel" which recommended closing these large facilities and shifting to smaller, community-based settings. Red and blue states alike have followed that approach, but the Texas Legislature balked, insisting on keeping a few large units open, even as their numbers dwindled. That's where the youth are allegedly being sexually victimized.

To make matters worse, legislative leadership have used allegations of violence and high sexual-victimization rates at these facilities as an excuse not to "raise the age" of adult criminal responsibility from 17 to 18, insisting that youth prisons are already out of control and couldn't handle the influx. Despite bipartisan agreement that 17-year olds shouldn't be incarcerated as adults, Texas remains one of only three states that does so.

Think about that: legislative leaders have both insisted "We won't close dangerous youth prisons," and also, "As long as youth prisons are dangerous, we can't raise the age." That's a strange, self-imposed Catch 22, but a convenient one if you're somebody who just thinks 17-year olds should be incarcerated as adults.

Grits understands the raise-the-age transition could be bumpy and won't be cost-free. In the long run, however, the success of Texas' juvenile-decarceration experiment over the last decade makes me sanguine it can work. But only if Texas legislators embrace juvenile-detention best practices and abandon these large, anachronistic facilities.

MORE: From the Waco Tribune-Herald.

The iceberg's tip: CA man walks free bc of DNA-mixture SNAFU

It's perhaps a testament to the reduction in size of and competition among MSM outlets that nobody has yet covered the problems with DNA-mixture forensics raised by federal District Judge Janet Neff of Michigan's Western District* (discussed by Grits here and on the latest Reasonably Suspicious podcast). That must change; some full-time reporter(s) must step up. These issues deserve high-level coverage and national context that this humble, regional blog cannot provide.

Once you begin to pay attention, these cases are cropping up everywhere. In San Diego, we have the case of Flamencio Dominguez. In 2011, he was convicted of a 2008 murder based on DNA mixture evidence and sentenced to 50 years, reported the San Diego Union Tribune. Months before the trial, the crime lab realized the mathematics behind their old DNA-mixture analyses used an invalid baseline. They decided to abandon their old approach and switch to "probabilistic genotyping" instead.

(Similarly, in Texas in 2015, crime labs discovered every lab in the state was using erroneous math in DNA-mixture analyses in ways that risked falsely accusing innocent people, see coverage here and here. In Travis County alone, 11 cases were found where suspect matches changed to "inconclusive." Our crime labs, too, were advised to switch to probabilistic genotyping.)

When the baseline issue was corrected in Mr. Dominguez's case, the new algorithm went from accusing him to "inconclusive." But prosecutors did not tell Mr. Dominguez's counsel about the change. The defendant was convicted based on what now is admittedly erroneous DNA math, and his lawyer wasn't aware of the flawed DNA-mixture protocols until six years later.

After his lawyer found out about the inaccurate math, Dominguez prevailed in 2017 on a habeas corpus claim and was released from prison. But prosecutors decided to try him again, this time using a tool from a company called STR-Mix based on probabilistic genotyping. That was the forensic tool Judge Neff evaluated in Michigan. The bottom-line assessment in Judge Neff's opinion was that:

The DNA evidence sought to be admitted in this case—in essence, that it is 49 million times more likely if [the defendant] 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.

Courts in California were robbed of their chance to decide whether they agree. San Diego prosecutors essentially let Dominguez plea out to time served because the company STR-Mix would not allow the state courts to examine their source code without a slew of non-disclosure agreements the court deemed inappropriate, reported the Union-Tribune:

court records filed last month show that the company wanted Speredelozzi and his experts to sign a restrictive non-disclosure agreement and abide by other restrictions. on Oct. 23 [Judge Charles G.] Rogers declined to require the [defendant's] lawyer sign the agreement, and warned that if the company failed to comply, he might exclude the DNA evidence all together from the trial. On Nov. 7 a lawyer for the company wrote to Speredelozzi they would not provide the crucial source code for the software without the non-disclosure agreement.

So the company chose to let the case against an alleged murderer fall apart rather than let California courts review its source code. But Judge Neff in Michigan already had experts do just that! Is the company afraid other courts may reach similar conclusions and disallow or limit their product's use? The execs at STR-Mix must really be feeling the heat!

One also wonders if the good folks at the Houston Forensic Science Center, which late last month announced they would begin using the STR-Mix software, might now begin to consider that decision ill-timed? Certainly, after Judge Neff's decision, one would question using it for either mixtures involving more than three sources or three-source mixtures where the target makes up less than 20 percent of the sample. Lots of trace-DNA samples are submitted to crime labs that don't meet those criteria!

On the November episode of the Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed Judge Neff's opinion and its implications for crime labs interpreting DNA mixture evidence. I pulled out that segment as a stand-alone; you can listen to it here:

The news about Mr. Dominguez's case hadn't yet come out, so we didn't talk about that. But the segment discussed some of the recent history of ever-changing DNA-mixture math and explored the reasons underlying Judge Neff's decision.

IMO this is going to become a significant story with national and international implications (everybody relies on the same science) and lots of twists and turns over the next few years. We need some journalists with chops to jump on this coverage on the front end. Wrongful convictions have gone unchallenged simply because not one reporter in the whole country is covering this beat.

For more background on this controversy, see:

• National Institute of Standards and Technology: "DNA Mixtures: A Forensic Science Explainer" (April 2019)
• Ryan Forensic: "What in the world is going on with forensic DNA mixture analysis?" (April 2017)

*Except Techdirt, which picked the item up from Grits.

Greatest American prison songs a fine antidote to sappy seasonal fare

In Grits' household, the missus launches Christmas music rather aggressively beginning the day after Thanksgiving every year. This year, just one week in, Grits already longed for a break in genre.

Luckily, back in August on the Reasonably Suspicious podcast, Texas Monthly's Mike Hall and I came up with the perfect antidote, ranking the top 5 American prison songs of all time while discussing numerous candidates for that esteemed canon.

Go here for a YouTube playlist of all the songs we discussed before paring down the list. I discovered today it makes for an excellent antidote to the sappy songs of the season. Perhaps you'll enjoy it, too.

Though Mike and I might quibble over which deserves top billing (I'd say "Midnight Special," he prefers "Ain't no more cane ..."), our top agreed-upon five were:

• Ain't No More Cane on the Brazos
• Midnight Special
• Folsom Prison Blues
• Black Steel in the Hour of Chaos
• Jailhouse Rock

I pulled out that segment ranking the greatest American prison songs as a stand-alone, you can listen to it here:


Find a transcript of Mike's and my conversation below the jump:

Public policy responses to informant abuses

 Two informant related stories recall a raft of snitching coverage on this blog, now mostly more than a decade ago.

First, our pal Pam Colloff has the story of a Texas man turned professional snitch, including four death penalty cases, on the NY Times magazine cover this Sunday. Pam has created a newsletter associated with the 13.5k-word story, sign up to receive followups and updates.

Also, Keri Blakinger tweeted out documents showing that Officer Gerald Goines told Houston PD investigators in February that there was no confidential informant in the Hardin Street case, as he had declared in an affidavit justifying a no-knock warrant. Two homeowners died and four officers, including Goines himself, were injured because of those lies.

Long-time readers may recall that Grits extensively covered informant-related policy issues for several years, and in 2006 offered these top-line reform suggestions:

Corroboration: In the Bible, both Mosaic Law and New Testament writings demand that no one be judged guilty of a crime on the uncorroborated testimony of a single witness. Without going that far (though I'm willing if the Legislature is), it makes real sense to require corroboration for all testimony by witnesses who receive incentives, especially cash or reduced sentences for their own crimes. (After innocent people were framed in drug stings in Tulia and Hearne, the Texas Legislature in 2001 enacted a requirement for corroborating informant testimony in drug cases.) 

Reliability hearings: In civil cases, judges decide in reliability hearings whether expert witnesses with long lists of credentials may testify as experts. New statutes should require similar pretrial reliability hearings to ensure a judge deems an informant credible before a jury hears their testimony. 

Supervisory controls: All conversations between police and informants should be recorded. Alternatively, officers should only interview informants in pairs. Informants who will be used on more than one case should be interviewed by a supervisor, and more detailed statistical and other documentation about informants and their activities should be required. More supervisory check-offs on payments to confidential informants are needed, and payments above a de minimus amount should only be made in the presence of supervisors. These ideas could all be implemented administratively at the department level without changing the law. 

Right to counsel: Informant agreements are essentially informal plea bargains. Informants whose culpability for their own crimes will be reduced or prosecution avoided should routinely be afforded a right to an attorney before entering into a "snitch" agreement, just as though they'd been charged with a crime. These "contracts" are generally one-sided and may even obligate informants to commit crimes in which they wouldn't otherwise engage.

Texas has done more than many states to rein in informant abuses. In 2001, Texas required corroboration for drug informant testimony to secure a conviction. In 2009, the corroboration requirement was extended to jailhouse informants. In 2017, the Legislature required prosecutors to track informant use more closely and to disclose informants' histories to the defense. Other reforms, like then-Sen. Rodney Ellis' SB 260 from 2009, which would have required reliability hearings for incentivized informants, never got off the ground.

As far as this blog goes, once I was no longer employed to work on police accountability, Grits moved on to other topics (e.g., innocence, and later, decarceration). But at one time, Grits wrote quite a lot about informants. See prior, related coverage below the jump:

Catching up on recent Texas exonerations

Grits checked in this afternoon at the National Exoneration Registry and thought we should mention some recent Texas exonerations. Just last month:

• Adrienne August was convicted of burglary in 2018 based on an impermissibly suggestive eyewitness identification process and exonerated in November.
• In Quintin Alonzo's case, exculpatory evidence withheld by the prosecution in Dallas back in 2003 turned out to be decisive.

Meanwhile, in October, the four men convicted in 2014 of a murder committed in the early 1990s were formally added to the exoneration registry:

• James Long
• Richard Kussmaul
• Michael Shelton, and
• James Pitts, Jr.

Finally, Lydell Grant's name isn't on the registry yet, but it should be soon enough after he was released on bond last week pending a final decision from the Texas Court of Criminal Appeals. DNA testing ruled him out as a potential suspect in a 2010 capital murder for which he was falsely convicted.

Congratulations to everyone involved in all these cases.

Travis County is Fine-and-Fee Central; old, sick inmates driving up TX prison health costs; junk science, wrongful convictions, and police-union bullies all still with us, and other stories

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

Why does Travis County assess so many fines?
Travis County stood out as an egregious outlier in a Brennan Center study on fines and fees focused on ten counties in three states. Assessed per-capita fines and fees were $32.30 in Travis County compared to $12.30 in El Paso, $8 in Santa Fe, and $4 in Miami-Dade County. This report casts light on one of the most obscure and little-studies aspect of the Texas justice system. Grits doesn't have resources to replicate this research for other Texas counties, but I wish someone would. We'd learn a lot, I bet. In particular, one imagines we'd learn how much harm a small number of malicious or incompetent judges, (im)properly placed, can do when left to their own devices what amounts to a judicial backwater for decades on end. See the Texas Observer's coverage.

Older, sicker prisoners driving Texas prison health care costs
Increased medical costs for older inmates is among the biggest reasons Texas prison budgets have never gone down despite closing eight units over the last decade, the Texas Tribune reported before the holiday.

The state spent over $750 million on prison health care during the 2019 fiscal year, a 53% increase from seven years earlier, when that cost was less than $500 million. 

The main reason, according to experts and officials: an older, sicker prison population.
While the total prison population declined by 3%, the number of inmates ages 55 and older increased by 65%, according to Texas Department of Criminal Justice data. 

Inmates over 55 account for about one-eighth of the population but nearly one-half of the system’s hospitalization costs, according to prison officials.

Grits has written about this population recently, regular readers will recall, suggesting revamped parole priorities as the only realistic way to confront the problem.

Newsflash: Police unions behave like bullies
When police unions subject professional athletes to the same, abusive behavior they routinely dispense toward #cjreform advocates, suddenly the media notices. smh. Some of us have been slugging it out with these guys for many years. It was never news before!

Junk science of the week
Voice print analysis. It's been more than ten years since the National Academy of Science published its ground breaking analysis of forensic-science flaws, and it's remarkable how little has been done to rectify the problems they identified.

Journalism and wrongful convictions
Grits is looking forward to attending an event on Wednesday in Houston on journalism and wrongful convictions - a fundraiser for Houston Interfaith featuring Pam Colloff and Nicole Casarez. Grits also is scheduled to meet DA-candidate Carvana Cloud for a brief chat while I'm in H-Town; she and Audia Jones are challenging incumbent Kim Ogg in the primary. In related DA-race news, here's an interview with Audia Jones from The Appeal.