Tuesday, August 15, 2017

Reasonably Suspicious: Bethke leaves TIDC, cap-and-trade to limit incarceration?, DNA-mixture SNAFUs, and more

Just Liberty's latest "Reasonably Suspicious" podcast for August features discussions of important issues and fresh ideas confronting Texas' criminal justice system. (This is the last episode in our summertime "soft launch" before promoting the show more widely beginning in September.) Listen to the podcast here, or read a transcript below the jump:

Topics covered include:
  • Jim Bethke leaving TX Indigent Defense Commission
  • "Cap and Trade" proposal to minimize incarceration
  • DPS crime lab fees on hold, but crisis lingers
  • DNA mixture evidence and Texas courts
  • What can judges do to minimize debtors prison practices?
  • Brain science and capital crimes by young adults
  • And more!

Sunday, August 06, 2017

Overtime for police court appearances a growing cost driver at Austin PD

Last month, a Grits post highlighted provisions in the Austin and Houston meet and confer contracts which gave police officers extra pay for time they spend testifying in court. In Houston, courts found this gave officers an incentive to make arrests on bogus DWI cases so they could make extra money - often quite a bit more than their base pay - in overtime for court appearances. And Austin's overtime pay for court appearances is even more generous.

Now, a budget response to questions by Austin Mayor Steve Adler about the drivers of overtime expenditures and police budget costs supplies light on the subject from a different angle. According to the city manager's response,

In 2016, overtime per sworn officer at APD was $11,647, up from $8,108 per officer in 2014.

Adler asked what was driving costs and overtime use at Austin PD. Looking beyond base officer pay, which in Austin steps up quickly with seniority to make them among the highest-paid officers in the state, the biggest over-time related item listed among the cost drivers was "Contract mandated Court overtime for police officers." That was the third largest item in an "other" category of cost drivers which included "Retirement" and "Health Insurance."

So, although we can't say from these data what proportion of overtime expenditures is due to court appearances (as opposed to callbacks or other, more mundane sources of overtime), overtime costs for court appearances have clearly mounted and now represent a significant sum.

White House backing for methadone in jails?

I don't understand the Trump Administration's position on the Drug War at all. Grits was under the impression that "beleaguered" Attorney General Jeff Sessions was ramping it back up, but then we see that the Administration apparently supports methadone treatment for addicts in county jails. From the New York Times:
maintenance treatments like methadone, if uninterrupted, are proven to reduce arrests and increase employment, and for many with addiction are the only thing that works. In July, a White House commission on opioid addiction called for increasing inmates’ access to addiction medication.
Somebody help me out here, I can't keep track any more: is that a liberal or a conservative position?

Grits also wanted to flag a medication being used on addicts in jails (or more often, as they are discharged), of which I hadn't previously heard:
A growing number of jails, especially in rural areas, have opted to treat inmates not while they are in jail, but on the way out, giving them a one-time shot of a newer medication, Vivitrol, as they are released. Vivitrol, which unlike methadone and Suboxone is not a narcotic and has no street value, blocks opioid receptors in the brain, making getting high nearly impossible. It is far more expensive, and far less proven, than methadone and Suboxone, but its manufacturer often gives it to jails free. Its effect lasts about a month.
The full Times story - "Opiod Users Are Filling Jails. Why Don't Jails Treat Them?" - is well worth a read. MORE: NPR covered Vivitrol this week as well, an alert reader informed me.

Saturday, August 05, 2017

Exploring (long-term) ups and (short-term) downs of police shootings in Texas

Last month's Reasonably Suspicious podcast from Just Liberty featured a new segment titled "Suspicious Mysteries" which focuses on questions to which there are no definitive answers. The topic this time: possible reasons why deaths in police custody in Texas doubled from 2005 to 2015, then steeply declined in 2016. A friend in another city asked if I could pull the 4-minute segment out as a stand-alone for use by advocates, so here you go:

For more:
And from Grits' contributing writers:
For more reform ideas, check out Campaign Zero.

Find a transcript of this segment below the jump.

Friday, August 04, 2017

Competing narratives, reentry, girl scouts, when prosecutors bully the defense bar, and other stories

Here are a few odds and ends  for readers' perusal while your correspondent is focused elsewhere:

Thursday, August 03, 2017

Unpunished police misconduct drives down crime reporting rates

In the past couple of years, we've heard a lot about the so-called "Ferguson effect," where cops supposedly react to public criticism by failing to do their jobs and intentionally allowing crime to flourish. Grits has expressed skepticism that that's really the attitude of the cop on the beat, but regardless, it's a common meme.

What's less commonly discussed is the reverse problem: when police misconduct goes unpunished, resulting in a loss of trust by the community and a failure to report crimes for fear of interaction with the cops. A Columbia Law Review article by Tracey Meares includes this summary of some recent research on exactly how that occurs:
In a recent study, Professors Matthew Desmond, David Kirk, and Andrew Papachristos present an example of how researchers can use such data. The researchers studied how police brutality against unarmed Black men affects cities and the Black community in particular by examining whether there was a change in the number of 911 calls in Milwaukee before and after a highly publicized incident of police violence against an unarmed Black man, Frank Jude. Jude was attacked by several White police officers in October 2004 after they accused him of stealing a police officer’s badge at a party. The officers stomped on his face with heavy boots and punctured his eardrums with pens. After the incident, Jude’s photo was shown in the newspaper demonstrating his extensive injuries. The results of the researchers’ analysis of 911 calls surrounding this incident are startling. After Jude’s beating was reported in the local press, Milwaukee residents—and especially residents of Milwaukee’s Black neighborhoods—were less likely to report crimes by calling 911. The magnitude of the crime-call decline in Milwaukee was large and long lasting. It persisted for over a year, “result[ing] in a loss of approximately 22,200 911 calls, a 17 percent reduction in citizen crime reporting, compared with the expected number of calls.” Moreover, the “missing” calls were primarily confined to the areas of Milwaukee in which mostly African Americans lived. After a year, the number of calls went up again.

Wednesday, August 02, 2017

Houston police shootings: 'Discriminatory,' but not 'Biased'?

Police shootings in Houston may not directly result from racial bias, according to academic analyses of data from Houston PD, but they do occur in a statistically discriminatory fashion. That's because officers' intent cannot be proven but the results are wildly disparate. This excerpt from a new academic article from Jeffrey Fagan and Daniel Richman described the two analyses and how they differ:
Research by Professor Roland Fryer examining police use of force in Houston, one of the nation’s largest cities, shows a nearly 50% greater incidence of use of force by police in encounters with Black or Latino persons but no disparity by race in shootings by police. Justin Feldman’s subsequent analyses of Professor Fryer’s Houston results showed that, in fact, Blacks were nearly five times more likely to be shot relative to Whites and Latinos were nearly twice as likely to be shot relative to Whites. Professor Fryer searched for evidence of racial bias in police shootings in Houston, using statistical models to identify intentional bias. He found none. Feldman’s analyses of the same data examined statistical discrimination — or disparate treatment of Black and Latino suspects by police in their use of force — and showed large racial disparities. Overall, the evidence of racially disparate police enforcement across cities reinforces longstanding beliefs among Black citizens about disparate treatment at the hands of the police and helps spread a narrative of an uneven burden that Black citizens bear in police–citizen encounters.
The authors explain the two studies' different conclusions by pointing out that they were analyzing two different things - "statistical discrimination" vs. "racial bias" - offering this explanation in a footnote: "Statistical discrimination reflects differences in the rates of an event by race, after controlling for race-specific and plausible nonrace factors that might explain such differences. Racial bias looks for evidence of intent to discriminate, independent of evidence of racial disparities."

If the outcome is that discriminatory ("Blacks were nearly five times more likely to be shot relative to Whites"), it's hard to know whether the public should be comforted by the concurrent finding that the discriminatory outcomes weren't generated by "bias." In essence, Prof. Fryer was positing HPD officers' good intentions, while Prof. Feldman lamented that they were the type with which the road to Hell is paved.

Tuesday, August 01, 2017

Conviction Integrity Units a Texas innovation gone national

Without a doubt, creation of the nation's first Conviction Integrity Unit (CIU) at a District Attorney's office was the most important legacy of former Dallas DA Craig Watkins' brief but eventful career as a Texas prosecutor. Check out a feature in The Atlantic praising the CIU in Philadelphia. This was a Texas innovation which has been mimicked far beyond our borders:
Today there are about 30 units, largely clustered in the Northeast, California, and Texas, according to Hollway. Roughly half were created after 2013, and their track records vary: Since the Philadelphia unit was created in 2014, Thomas’s case is the first and only one it’s thrown out. By contrast some of the most robust—such as those in Dallas, Houston, and Brooklyn—have thrown out dozens.
Conviction Integrity Units in Texas have mostly usurped the old model of innocence clinics at law schools, which are these days responsible for a tiny fraction of the total discovered innocence cases compared to what comes out of the CIUs.

1,200+ back petition to limit DPS Class C arrests, and other stories

Here are a few odds and ends that caught Grits' eye while I'm focused elsewhere:

Monday, July 31, 2017

Reduce public-safety costs by diverting non-emergency 911 calls

CityLab has a story about a topic that's been on my mind lately, though I hadn't written anything yet: How to reduce 911 volume by weeding out non-emergency calls. Mostly on Grits we've discussed this in terms of time wasted on false alarms from private burglar alarm companies, which make up 10-12% of 911 calls and almost never result in arrests, even in the less than 1% of cases in which a burglary actually occurred. But there are other means, like diverting non-emergency medical situations from the emergency room, as discussed in the CityLab article. One might also suggest diversion programs for calls related to the mentally ill - right now we use the same tactics and personnel to respond whether the emergency involves a criminal or a patient.

911 is treated by the public as a one-size-fits-all solution to a multi-variate array of life problems. Whittling back its use would decrease demand for patrol services without harming public safety and relieve pressure on local budgets to constantly increase police staffing. Instead, departments could more thoughtfully deploy their officers and be less reactive, spending more money on detectives, crime labs, crime-scene techs, and other necessary functions that make it more likely crimes will be solved.

Sunday, July 30, 2017

Governor: DPS crime lab fees 'premature,' but that doesn't mean 'unnecessary'

Texas politicians love to talk about cutting budgets and reducing taxes, but they never want any of the services that money pays for to shrink. Or at least, that's Grits' takeaway from the governor's volteface on Friday, when Greg Abbott rescinded the Texas Department of Public Safety's move to charge law enforcement agencies discounted fees for crime-lab services. For decades, DPS provided such services for free to  jurisdictions without their own crime labs. (Lubbock PD is the biggest DPS crime-lab customer, if "customer" is the right word for somebody receiving a freebie.)

This blog has argued for some time that the demand for free-as-in-beer crime-lab services would continue to outpace capacity and that charging for services is the only way to reverse the dynamic. So Grits was unfazed by this news (although everyone was surprised by it). It would have caused a temporary disruption because the locals weren't given time to plan, but in the long run it's a necessary adjustment that would make the system more stable. After all, the rates locals were being asked to pay were still discounted - subsidized fractions of the full cost of those services which are borne en toto in jurisdictions that operate their own crime labs.

But law enforcement and prosecutors howled like scalded cats. While the prosecutors' association admitted that "DPS has long had the statutory authority to assess these fees," critics focused more on the lack of foreknowledge. According to TDCAA, this was a "last-minute change made behind closed doors as part of the final conference committee budget, which is why no one knew about it until after it was done," which is a fair criticism.

That said, let's be clear: Gov. Abbot has resolved nothing; he has only kicked the can down the road. From the SA Express-News:
Abbott said that despite a tight fiscal situation in Texas, it would be premature to contemplate charging law enforcement agencies a fee for using the DPS labs, according to a letter he sent to DPS Director Steven McCraw. 
“Under no circumstances will I allow the 13 crime labs that DPS operates across the state to be underfunded. However, I firmly believe it is premature to charge a fee at this time,” Abbott wrote the DPS.
So he's saying 1) the crime labs won't be underfunded, and 2) DPS cannot right now begin charging a fee, but it possibly could in the future ("premature" is very different from saying it's a bad idea). That doesn't mean they can't do so in the future when state money runs out sometime in FY 2019. The problem is, if DPS implements fees right now, they can charge discounted rates over the course of the biennium. If they must wait until the money runs out to begin charging fees, they'd have to charge the full cost in order to provide the services.

In the perhaps-more-likely alternative, the Legislative Budget Board could authorize the money and the Lege could re-up it in a supplemental budget in 2019, but they do have to cut the budget somewhere if they don't want to raise more money. They can't all be phantom, I-didn't-mean-it budget cuts.

The notion that the governor will not allow the crime labs to be underfunded is a fascinating statement because he already has! Not only did he sign the budget which included the fees, DPS crime labs needed a substantial increase to keep up with skyrocketing demand for forensic services. However, the fees they were authorized to collect only got them to the budget total they spent in the last biennium. That's insufficient given that DPS crime labs cannot control demand for their services - locals decide the agency's workload, with the cost all coming out of the state budget (if the fees are not implemented).

So if it's "premature" right now, when might we expect DPS to begin charging fees for crime-lab services? From the same Express-News story:
Earlier this year, the Legislature set aside nearly $63 million for operation of crime labs for the next two years, an amount Abbott said is enough to ensure that the facilities can operate at full capacity “well into the next biennium” without a fee. 
DPS said lawmakers gave the department authority to charge enough in fees to collect up to $11.5 million for forensic analysis to bring the department to its full authorized funding level of $74.5 million. Its budget for the previous biennium was $74.7 million, according to the department.
If one assumes DPS crime labs will spend at quicker rates than last biennium thanks to heightened demand, we can expect them to run out of money more or less right as the Legislature convenes in 2019. That makes Grits think the supplemental appropriation is more likely than implementing fees during this biennium.

But at some point state leaders are going to have to address the conundrum caused by this disconnect between demand for crime lab services and payment for them. Now that the fees are delayed, the better public policy would be to implement them as soon as practicable - Grits would suggest Sept. 1, 2018, so that agencies would have time to include the change in their budgets - but not to wait for another legislative cycle. Even charging discounted rates would reduce waste and unnecessary or redundant use of crime lab services.

Finally, it should be said that DPS finds itself between a rock and a hard place. The Lege cut their budget 4% but won't let them reduce any of the services they provide. In addition to this flip-flop, the agency was also forced to rescind a reduction in hours at drivers license centers as a result of the new budget. That's fine - nobody like longer lines at the DMV. But if DPS has less money, what is it currently doing that it's now allowed to cease? Not border security. Not crime lab freebies. Not drivers license operations. Should the cuts come from (non-border area) patrol? Narcotics enforcement? Where, exactly?

The new crime-lab fees were actually a smart-on-crime budget cut, adjusting the financial burden for forensic services so that they're partly borne by the agencies directly benefiting from them. It may have been ham-handedly implemented, and because of that a short-term delay may even be warranted. But state leaders should let DPS pull the trigger on new crime-lab fees sooner than later. The problems caused by unlimited demand outstripping finite capacity at DPS crime labs aren't going away.

MORE: The Fort Worth Star-Telegram offered up a similar position in an editorial which linked to this blog post.

Thursday, July 27, 2017

How journalists should (and shouldn't) cover parole, community supervision

Journalism surrounding parole is mostly myopic, regressive, and unenlightening. Tuff-on-crime demagogues have mastered the art of crowing over the details of an isolated case to claim that parole should never be granted to anyone, ever, while ignoring broader public safety trends. And too often, our journalist friends gobble it up and regurgitate such messages uncritically.

An example arises out of Houston where a parolee committed a murder after being released halfway through a 45 year sentence. A prosecutor told the press the parole board has "blood on their hands." And yet, in Texas and nationally, crime rates remain near historic lows* despite parole rates in Texas increasing over recent years.

The folks who point to a single, terrible crime committed by a parolee to criticize the process are hoping the public will miss the forest for the trees. The parole board makes its rulings on a massive scale, deciding tens of thousands of inmates' fates every year - dozens every workday. Parole board members are not soothsayers. It is impossible to guarantee that none of those released will commit new crimes. But in aggregate, crime has declined in Texas over most of the 21st century. So whatever policies they're using are working reasonably well from a public-safety standpoint. Parole rates in Texas are significantly higher than California, for example, but our recidivism rates are remarkably low compared to them and most other states, in large part because we incarcerate many low-risk offenders who would not be in prison elsewhere and who are unlikely to commit new crimes regardless. More restrictive parole policies that result in more of those folks being denied release do not promote public safety.

Instead of focusing only on the most salacious, high-profile cases, the better way to think about parole is as a system and to seek the best possible systemic outcomes. The details of one horrific murder may dominate the headlines for weeks, but an aggregate reduction in murders over time will get at most an in-passing mention, not sustained, focused coverage, even if many more people are affected by the story. Regardless, that sustained, aggregate reduction should drive public-policy goals.

So, with that introduction, I wanted to record links to a few recent expert assessments of needed reforms to probation and parole that take a systems approach instead of reinventing supervision around the failures in a single case. Legislators interested in maximizing public-safety benefits from community supervision would do well to heed their concerns, which extend beyond any individual case to focus on bettering the community weal overall.
The press and legislators have become accustomed to the cycle of outrage surrounding egregious violent crimes and figured out how to use it for their own advantage - to maximize clicks and scare voters, respectively. But if we really want to be "smart on crime," we'll need to move beyond those frames.

* The Atlantic last year ran a story questioning, "What caused the great crime decline in the US?" For those seeking answers to this surprisingly difficult question, see:

James White on 'small tyrannies' and Texas' 'criminal-justice dividend'

In the latest "Reasonably Suspicious" podcast from Just Liberty, we broadcast a brief excerpt from a conversation between me and Texas House Corrections Committee Chairman James White. Here's our full conversation, for anyone interested:


Find a transcript below the jump:

Wednesday, July 26, 2017

Shorter sentences when locals on the hook for incarceration costs

In California, when counties were made to pay for juvenile incarceration instead of pawning off costs on the state, local decision makers chose to incarcerate youthful offenders for shorter periods, according to this academic paper describing the "natural experiment" that resulted from the change in policy. (Thanks to a reader for pointing it out.)

Lately, Grits has been making the case that many of the most important "unfunded mandates" affecting government budgets come from local decisions for which state government must pay. This paper shows that the tuff on crime crowd gets less punitive when the costs for their rhetoric come out of their own budgets. 

That counties don't want to pay for incarceration should surprise no one. Heck, Texas judges don't even sentence misdemeanor defendants to jail time upon conviction, typically. As of July 1, only 3.7 percent of county jail inmates were convicted misdemeanants, while 9.1 percent were misdemeanants awaiting trial. That pattern holds even for counties sending inmates to TDCJ at exceptionally high rates.

To me, this dynamic argues for exploring more seriously a cap-and-trade program where counties are assigned a share of aggregate bed-years every year. Those wishing to over-incarcerate could buy extra bed-years from less punitive counties via a market mechanism similar to cap-and-trade for pollution controls. Such a system would still have the state pay for most incarceration, but let counties which wanted to incarcerate at much higher rates than their more liberty-minded counterparts do so if they're willing to pay for it.

MORE: John Pfaff addressed this post/paper on his Twitter feed.

Tuesday, July 25, 2017

Petition seeks change to DPS rules on Class C arrests

Yesterday, Just Liberty filed a formal petition to initiate rule making at the Texas Department of Public Safety to substantially limit arrests by state troopers for non-jailable Class C misdemeanors. See the document here.

The proposal enjoys broad, bipartisan support and in fact implements (for DPS) a plank from the Republican Party platform: "Restricting Arrest Powers - Republican Party of Texas calls on the Texas Legislature to authorized the arrest and jailing of individuals only for offenses for which jail is a punishment or to prevent family violence."

Under Texas law, if 25 people sign a petition requesting a change in DPS Administrative Code rules, the agency has 60 days to either reject the petition or launch the rule making process. Long-time readers may recall that this blog used the same process to initiate rule making at DPS to create an indigence waiver and amnesty program for the Driver Responsibility surcharge. (Check out a couple of segments from the latest Reasonably Suspicious podcast on that effort beginning at the 3:45 mark.)

Petition signers include representatives from 16 different groups, several state legislators, and Sandra Bland's mother. Go here to send an email to DPS Director Steve McCraw to encourage the agency to initiate rule making and adopt the proposed rules.

Texas AG: Carrying a gun doesn't justify 'Terry' frisks

Texas Attorney General Ken Paxton has signed onto an amicus brief aimed at the US Supreme Court to argue that carrying a firearm in a state where that's legal does not justify a "Terry frisk" based on officer safety. Here's the full text of his press release:
Attorney General Ken Paxton yesterday joined West Virginia’s amicus brief in Robinson v. United States along with Indiana, Michigan and Utah in the United States Supreme Court to protect against unjustified frisk searches occurring on the suspicion that a citizen is armed. The basis for this search places a burden on the Second Amendment right to carry a firearm. 
In 1968, Terry v. Ohio determined that a law enforcement officer may both stop and frisk an individual when “specific and articulable facts” lead an officer to reasonably believe criminal activity is occurring. This search is justifiable when the officer believes the detained individual “is armed and presently dangerous to the officer or others.” However, an en banc Fourth Circuit recently interpreted Terry to require only a reasonable suspicion that the individual is armed. This interpretation allows officers to justify a frisk search solely on the suspicion of possessing a weapon during a lawful stop, regardless whether there is a reasonable belief that the individual is dangerous. 
“The Fourth Circuit interpretation places an unlawful burden on Second Amendment rights. The Constitution plainly guarantees law-abiding citizens the right to bear arms, whether through open or concealed carry,” said Attorney General Paxton. “We must ensure the Court continues to protect the constitutional rights of law-abiding citizens.”
The issue to be decided in this case:
Whether, in a State that permits residents to legally carry firearms while in public, a law
enforcement officer’s belief that an individual stopped during a lawful Terry stop has a firearm on his or her person provides a sufficient basis — standing alone — for the officer to conclude that the armed individual is “presently dangerous” and thus allow the officer to lawfully engage in a warrantless “frisk” of that individual.
The implications are significant: Possibly carrying a gun is the main justification for Terry frisks, so if that's no longer sufficient, it could virtually end the practice.

Ken Paxton may be the most unlikely Fourth Amendment advocate imaginable, which may explain why he only reached these questions when a Second Amendment right was at stake.

Sunday, July 23, 2017

'Reasonably Suspicious': Check out latest Just Liberty podcast

Check out the latest "Reasonably Suspicious" podcast from Just Liberty, hosted by your correspondent and Amanda Marzullo of the Texas Defender Service. This month's episode features an excerpt from an interview with Texas House Corrections Chair James White (I'll publish our full conversation later in the week) plus a discussion of a new petition for rule making, which will be submitted on Monday by Just Liberty to the Texas Department of Public Safety, calling for limits on arrests for non-jailable offenses. Also, be among the first to hear the new, original music produced for the podcast by Gabe Rhodes and an all-star crew of musicians.

Other topics covered include:
  • Why police shootings declined in Texas in 2016
  • Judge sides with prisoners in TDCJ heat litigation
  • DPS charging local agencies for crime lab services
  • Police overtime for court appearances
  • Cameras in the courtroom at the Texas Court of Criminal Appeals ...
And more! You can also access the podcast via YouTube and Soundcloud.

Find a full transcript of July's Reasonably Suspicious podcast below the jump.

Thursday, July 20, 2017

TX DPS ends freebie crime-lab services for law enforcement

Local governments complain near incessantly in Texas of "unfunded mandates" imposed on them by state government, but almost never acknowledge the unfunded mandates that operate in the other direction. For example, as Grits wrote in February:
The most important unfunded mandate in the criminal-justice system comes from local government decision makers - especially prosecutors and judges - making choices about imprisonment at TDCJ for which state government must pay 100 percent of the costs. So there's a political incentive for locals to demagogue as "tough on crime" and maximize use of prison because they aren't accountable for the expense of incarceration. And many of them, particularly in rural jurisdictions, gleefully succumb to that incentive.
Another big unfunded mandate from the locals to the state historically has been a longstanding requirement that DPS crime labs perform forensics for local agencies for free. Grits has been editorializing about the unsustainability of this model for several years. But now, DPS has announced it will require locals to pay for the services, albeit at discounted rates. This will be a big change, and will cause more than a few hiccups during the transition.

Larger agencies either have their own labs or have money to contract out, so the burden of this change will fall more harshly on rural and smaller agencies. And at the moment, many of those agencies - hundreds of them, in fact - don't have forensics budgets at all because they've always relied on DPS. (What they'll do until their jurisdictions get around to passing a new budget will be anybody's guess.)

There will be much weeping and gnashing of teeth over this change, but a socialized market for forensic services for too long has encouraged their overuse. If instead, local agencies must chip in for part of the cost, over time they will likely prioritize cases with the greatest impact on public safety and eschew the petty stuff.

That sort of use of discretion based on cost-benefit analysis is a good thing. We arguably need more of it in the justice system; the utility of the give-em-a-blank-check model has long ago reached its limits.

What is the upshot of TDCJ heat litigation injunction?

Hard to know the full implications, yet, but the issuance of injunctive relief by a federal district judge in favor of inmates complaining of un-air-conditioned housing in TDCJ's Wallace Pack Unit surely changes the terms of debate surrounding heat-related deaths of Texas prisoners. See coverage from the Houston Chronicle and the judge's 100+ page order.

It's hard to know the implications for several reasons. First, the ruling only applies to one TDCJ unit, not all of them, and Grits is unclear of how this ruling might affect other facilities. Is it a one-off that only applies to the Pack unit, or will TDCJ be forced to adopt similar remedial measures to similarly situated inmates in other facilities?

Also, the judge's ruling that air conditioning must be supplied only applies to heat-sensitive inmates - i.e., inmates who are elderly, disabled, or who have special needs. It does not apply to younger, able-bodied inmates who are housed at the facility to do the work.

Still, it's going to apply to a lot of folks. From the ruling:
The parties stipulated that, as of September 18, 2014, the Pack Unit contained 728 men with hypertension (high blood pressure), 212 men with diabetes, 142 men with coronary artery disease, 111 obese men, 53 men with a psychiatric condition, 66 men prescribed an anti-psychotic medication, 22 men with cirrhosis of the liver, 84 men with chronic obstructive pulmonary disorder (“COPD”), 189 with thyroid dysfunction, and 113 with asthma. There are 188 men in the Pack Unit over the age of 65. Id. Many of these conditions overlap within one person. However, all of the conditions, individually, cause heat sensitivity[.]
If everybody with a psychiatric condition, everyone taking mental health meds, everyone with asthma, everyone over age 65, etc., all require air conditioning, TDCJ will find itself facing similar issues in dozens of facilities across the state.

It was also interesting to note that the judge believes some of TDCJ's heat mitigation methods are counterproductive. Fans used when the heat index surpasses 95 degrees Fahrenheit, for example, just blow hot air onto inmates and worsen the problem. Similarly, misters like those restaurants sometimes use to cool off patrons are less effective in prisons where they can't cover much area and over time actually serve to increase the humidity.

One interesting suggestion has arisen. Texas county jails overbuilt based on speculation that the mass incarceration boom would go on forever, and those facilities are air conditioned as required by state law and regulations by the Texas Commission on Jail Standards. The County Judge in Newton County has already suggested that TDCJ inmates could be housed in his facility.

This thought, though not a terrible idea, raises its own set of issues. First, Grits wouldn't support shifting inmates to county contracts unless the state simultaneously moved to close un-air-conditioned state-run units. I wouldn't want to see this plan become a back-door means to raising capacity during an era when we should continue cutting it.

Second, because many of the inmates subject to the injunction are special needs inmates, there'd need to be expanded training and maybe additional hiring of more qualified jailers and support staff in order to handle TDCJ's sick and elderly, which is a quite different demographic of inmate than those who routinely cycle through county jails. I'm not certain most local facilities are able to handle them, and extremely rural sites like in Newton County may not have access to medical and mental-health supports that inmates with special needs might require.

Still, if TDCJ moved special needs inmates to air-conditioned county facilities, ensured they received adequate medical and mental-health care, and closed some state-owned prison units that couldn't be retrofitted with A/C, Grits can think of worse outcomes.

All that said, like the federal judge, Grits believes TDCJ is vastly overstating the costs to upgrade the Pack unit to add A/C. So when the real numbers are acknowledged, it may be cheapest and most efficient just to improve the facility and continue to treat elderly and disabled inmates where they are. If the agency can provide air conditioning for their hogs, they can do so for sick and elderly inmates.

Finally, all this depends on what the 5th Circuit does in response to the state's appeal. They have upheld injunctive relief in other prisoner-heat cases but insisted it be cabined to inmates with special heat-sensitivity issues. This ruling tracks that reasoning pretty closely, but the makeup of the 5th Circuit could change soon and there's no way to predict what mood they'll be in when they consider the case. And if the case ended up with cert granted at the US Supreme Court, your correspondent wouldn't be particularly surprised.

Wednesday, July 19, 2017

Don't eliminate field tests without tracking outcomes from officer discretion

Cheap and unreliable field tests for drugs have caused hundreds of false convictions in Houston and elsewhere. But it's unclear if eliminating the tests will result in better outcomes. Officer discretion will likely be even more problematic and discriminatory.

The department decided to end the tests not because they're notoriously unreliable but because they fear an officer will come into contact with the drug fentanyl and overdose. So the policy is reactionary and rather spur-of-the-moment, not taking into account the possible effects on wrongful convictions.

It will be some time before we know whether officers make errors identifying drugs more often than the field tests. Houston PD should track those outcomes so we will know.

Until then, the Texas Forensic Science Commission has been charged with studying the field test issue and reporting back to the legislature by Dec. 1, 2018 with recommendations. That's a welcome development. The FSC should specifically examine whether officer discretion makes more errors than field tests, to the extent possible. And if they can't tell, they should propose experimentation that would determine the question.

It would have been nice had such research occurred before changing policies, but instead, once again, law enforcement is leaping before looking.

Black folks jailed longer, junk-science-writ scholarship, and other stories

Grits has a busy week, but here are a few odds and ends of which Grits readers should be aware:

When officers are indicted
The Balch Spring police officer who shot and killed Jordan Edwards has been indicted. However, these cases against law enforcement officers are notoriously difficult to win. In Arlington, two jail guards involved in the death of an inmate caught on video received sentences of deferred adjudication and just one year on probation. MORE: The Texas Tribune offered up a feature on the rarity of police-officer indictments or even on-the-job punishment related to fatal shootings in Texas. RELATED: From the Marshall Project, "White America's Unshakeable Confidence in the Police."

Black folks jailed longer in Travis
A new study of the Travis County Jail commissioned by Grassroots Leadership found that black folks stay in jail longer than whites when charged with the same or similar offenses. See coverage from the Austin Statesman.

Scholarship re: Texas' junk science writ
Here's a new academic paper that goes on Grits' to-read list comparing Texas' junk science writ with a similar law in California, vetting the language of both.

States ban some in-court witness IDs 
Massachusetts and Connecticut have banned in-court eyewitness identifications when defendants had not previously known the subject or ID'd them in an out-of-court procedure. That's a really good reform. Texas should consider it, especially since our current standards aren't keeping problematic IDs from being presented to juries.

Rural woes driving incarceration
Rural jurisdictions are now driving mass incarceration's upward trajectory to a greater extent than their urban counterparts, with high incarceration rates in rural counties while rates in urban and suburban counties are declining. The Wall Street Journal dug into into rural America's underlying problems driving crime rates there, which run deeper than just a lock-em-up mentality among their prosecutors.

Best practices for crime prevention
Police Chief magazine published a feature detailing nine evidence-based crime-prevention strategies based on "best practices on crime control and prevention for law enforcement executives based on what is known from research."

Monday, July 17, 2017

Texas jailhouse-snitch reforms praised

The New York Times over the weekend (7/15) had a staff editorial praising the latest reforms in Texas aimed at reining in the use of jailhouse informants, part of the Lone Star State's latest round of innocence legislation passed earlier this year (HB 34). The article opened:
Prosecutors love jailhouse informants who can provide damning testimony that a cellmate privately confessed to a crime. Jailhouse informants, in turn, love the perks they get in exchange for snitching, like shortened sentences, immunity from prosecution or a wad of cash.

As you might imagine, though, in a market driven by such questionable motives, the testimony these informants provide is often unreliable. 
Even worse, it can be deadly. False testimony from jailhouse informants has been the single biggest reason for death-row exonerations in the modern death-penalty era, according to a 2005 survey by the Center on Wrongful Convictions. They accounted for 50 of the 111 exonerations to that point, and there have been 48 more exonerations since then. 
Last month, Texas, which has been a minefield of wrongful convictions — more than 300 in the last 30 years alone — passed the most comprehensive effort yet to rein in the dangers of transactional snitching.
We discussed this new law in the top story of the latest Just Liberty podcast. Here's how the Times described it:
The new law requires prosecutors to keep thorough records of all jailhouse informants they use — the nature of their testimony, the benefits they received and their criminal history. This information must be disclosed to defense lawyers, who may use it in court to challenge the informant’s reliability or honesty, particularly if the informant has testified in other cases. 
The law was recommended by a state commission established in 2015 to examine exonerations and reduce the chances of wrongful convictions. The commission also persuaded lawmakers to require procedures to reduce the number of mistaken eyewitness identifications and to require that police interrogations be recorded — smart steps toward a fairer and more accurate justice system.
This is the third piece of significant informant reform legislation passed by the Texas Lege in the 21st century. The first, a requirement for corroboration of informant testimony in undercover drug stings, passed in 2001 in the wake of an ugly batch of racist false convictions arising out of the Tulia drug stings. Gov. Rick Perry eventually pardoned 35 defendants, and the episode led to a five-year campaign which ultimately convinced the Governor to de-fund Texas' drug-task force system entirely.

Then in 2009, the first session your correspondent was Policy Director for the Innocence Project of Texas, the Lege passed a corroboration requirement for jailhouse informant testimony. (This has been particularly important in cases where flawed forensics were coupled with jailhouse snitch testimony to secure false convictions.) The following session, the Michael Morton Act strengthened disclosure requirements for prosecutors in ways that specifically implicated informant testimony. Plus, Texas has seen other informant-related legislation - e.g., allowing for pretrial reliability hearings regarding compensated informant testimony - which was filed and debated but never made it through the gauntlet.

So when the Exoneration Review Commission tapped law prof Alexandra "Sasha" Natapoff - whose work has informed Grits' advocacy on these issues for more than a decade - to advise them on needed informant reforms, that culminated many years' efforts educating legislators on problems with and failures by the informant system. It wasn't just some pop-up surprise in an otherwise dreary session.

Fixing problems with informants requires long-term work; there are few short-term reform fixes in a criminal-justice system this vast and unwieldy. Indeed, in the long run, the cultural shift advocated in the close of the Times editorial is without question the most important reform possible, if also the most difficult to achieve:
[M]aking evidence admissible at trial only goes so far. The vast majority of convictions are the result of guilty pleas, which means a defendant may not even find out that an informant was paid to incriminate him before having to decide whether to accept a plea offer. 
Some states have begun to require that judges hold hearings to test an informant’s reliability, much as they would test an expert witness’s knowledge — before the jury can hear from him. 
But the deeper fix that’s needed is a cultural one. Many prosecutors are far too willing to present testimony from people they would never trustunder ordinary circumstances. Until prosecutors are more concerned with doing justice than with winning convictions, even the most well-intentioned laws will fall short.
MORE: From the Dallas Morning News.

Sunday, July 16, 2017

Of journalists, drunks, lamp posts, and Year-To-Date crime data

A note to my journalist friends: Can we please dispense with news stories featuring "year to date" crime statistics, murder rates, shootings of and by police officers, etc.? The Houston Chronicle had a feature this week citing a supposedly declining murder total from the year-to-date data, after two successive years of growth in that crime category.  I'm not picking on them especially; lots of people in the MSM do it. But the practice reflects a philistine view of math and crime trends that uses data as a drunk uses a lamp post: For support rather than illumination. It should stop.

Criminologist Jerry Ratcliffe, using data from Philadelphia, has shown why these trend predictions, especially when conducted mid-year or earlier, have little if any probative value.
To use calendar YTD comparisons with any confidence, we have to wait until the end of October before we can be more than 50% confident that the year-to-date is indicative of how we will enter the New Year. And even then we still have to be cautious. There was a chance at the end of November 2010 that we would end the year with fewer homicides, though the eventual count crept into increase territory.
The bottom line is that with crimes such as homicide, we need not necessarily worry about crime panics at the beginning of the year. This isn’t to say we should ever get complacent and of course every homicide is one too many; however the likely trend will only become clear by the autumn.
Frequently, real, long-term trends cannot be divulged from crime data until years have passed because of lags in reporting, differences between jurisdictional challenges and practices, and a wide array of variables which may drive different trends at different places and times (sometimes cyclically, as with summertime crime increases, and sometimes episodically, based on specific situations like the opiod and meth epidemics or drug cartel trafficking patterns). The less common the crime, the more time is needed before data may be meaningfully interpreted.

Murders, like shootings of police officers, are uncommon occurrences where small numerical changes can result in big spikes and troughs in annual totals, particularly when one is looking only at one city our county. And because datasets are small, error rates are high when predictions or assumptions are based on them. Your correspondent was taught that truism 30 years ago when I first began writing about these topics and was warned repeatedly by experts and editors not to overstate crime data. And that was in an era now known for promoting "tough on crime" memes and an if-it-bleeds-it-leads mentality in the press. But those lessons about data seem to have been lost. I see these YTD stories all the time, on a number of different topics involving small numbers of rare occurrences where they make little sense.

Perhaps expert analyses like Prof. Ratcliffe's can help re-familiarize reporters with the limits of and problems with using these year-to-date datasets to say murders (or police officer deaths, or other rare occurrences) are rising or falling. You can write at the end of the year about increases or decreases, but because of inherent limitations in the data, especially at the city level, these year-to-date comparisons probably misinform more than they illuminate. That's particularly true because the stories where they purport to go up are hyped much more than articles like the one in the Chron estimating that the murder total will be lower this year.

My fear is that these year-to-date stories are too easy for journalists to cease; the lamp post provides too much support for shoddy journalism and simplistic thinking, filling a vacuum where more probative data and expert knowledge suffer from gaps. So Grits isn't sanguine that most of the drunken journalists leaning against the street lamp in this metaphor will be able to stand on their own two feet, much less that they'll soon turn their faces toward the light.

Thursday, July 13, 2017

Blain: 'What does actual police reform look like?'

Charles Blain of the Restore Justice project at Empower Texans has a column in The Hill posing the question, "What does actual police reform look like? More training and more oversight." Blain represents the grassroots conservative wing of the party represented by the Freedom Caucus in the Texas House and Lt. Gov. Dan Patrick in the senate. So what does police reform look like from that perspective?

For starters, he wants more "purposeful training."
In some states, like New York, California, and North Carolina, obtaining a barber’s license requires more hours of training than to become a sworn officer 
In Louisiana becoming an officer takes less training than becoming a manicurist.
Blain also suggests that, "local governments should fully embrace independent police oversight boards giving civilians have a voice in policing." Further, "Out of 18,000 police departments in the country, only about 200 have an independent or civilian oversight board," he lamented. Blain offered up this unusual (for a conservative) discussion of the benefits of a civilian review board:
Two persistent problems on many oversight boards are the scope of authority entrusted to them and the requirements for civilians to participate. 
In Texas alone, the scope of authority for boards in major cities spans across the spectrum. In San Antonio, the Chief’s Advisory Action Board has the ability to interview officers before making a recommendation for disciplinary action to the chief. 
Dallas’ review board is authorized to hire investigators, take sworn testimony, and subpoena witnesses. Houston’s operates largely in private and only takes cases referred to them by the internal affairs bureau of the department. 
Many of the boards require members to have extensive background in policing, law, or criminal justice, which excludes much of the community whose concerns they are meant to address. 
Civilian boards need power, resources and autonomy to be as effective as possible.
Blain embraced body cameras. And although he recognizes the public policy problems with how they've been implemented, including in Texas, he punted on prescribing what good policies might look like:
Policies determine when the officer has the discretion to turn the camera on or off, how regularly it must be charged, if the data on it is subject to public information, the officer’s ability to review it prior to making a statement on an incident, chain of custody for the camera, and policy regarding data retention and manipulation just to name a few. 
Without a sound policy, body worn and dash cameras don’t serve their intended purpose.
He recommended customizable apps to facilitate public engagement, and use of ShotSpotter technology to identify the sources of gunshots.

Grits appreciates Mr. Blain's taking a first stab at thinking through policies that might constitute "actual police reform." But your correspondent would be remiss if I didn't point out that "actual" reform must go further than these proposals or it will be ineffective and fail.

For starters, Grits simply disagrees that civilian review boards can ever be an effective check on police misconduct no matter what their structure. I'm unaware of any such review board anywhere in the country which has achieved the goals of reform activists who got them created. (When I was Police Accountability Project Director of the ACLU of Texas from 2000 to 2006, this was basically my beat.)

Think about it: What does the public demand when an officer shoots someone improperly or engages in misconduct? His or her termination or reprimand. Yet those are precisely the things civilian review boards cannot do. At most they only advise and that advice is routinely and easily ignored because the structure of the police disciplinary process insulates decision makers from being accountable for outcomes - they can typically only be held accountable for complying with the process. Civilian review boards are structurally not capable of satisfying public concern over these issues and may help provide political cover for misconduct when they are weak and ineffectual, which is all the time.

The power to discipline and fire police officers cannot be wrested from departments and even if  it could, that would be a bad idea. Instead, management's ability to enforce rules must be strengthened at the expense of labor. Even when one does not fully trust police management, the best play for police accountability activists is to seek to empower them vis a vis the union.

Re: Training. More is fine, but what's really needed is for police department policies to change to emphasize deescalation, then to retrain on those policies. More training on the sort of cowboy-style shoot-em-up methods taught by a lot of modern training consultants isn't going to help much. Policies and practices must change, then more training will help.

On body cameras, the transparency/privacy questions must be answered because, as presently constituted in Texas, body camera footage for the most part is secret unless a law enforcement agency decides releasing it will somehow help them, thanks to a terrible law passed by Sen. Royce West in 2015. Texas must roll back that thicket of thick-headedness before body cameras will be a true reform measure here.

Finally, some of the most important police accountability measures needed aren't broached in Blain's column. In a column in 2011, Grits identified a few of them:
Transparency: Independent, aggressive press oversight, as a practical matter, is MUCH more effective than any civilian oversight mechanism I've ever heard of, anywhere. Civil service cities like Houston have most of their disciplinary records closed unless officers are severely disciplined (more than two days suspension), and then only summary information is public. So, for example, in Dallas or El Paso, which never opted into the civil service code, reporters get a LOT more information on police misconduct than Houston or other civil service cities, and it really shows in their coverage, particularly at the Dallas News. Easily the most effective change to improve police oversight in Houston and other civil service cities, without costing the taxpayers a dime, would simply be to re-open police disciplinary files; hundreds of non-civil service cities and every Texas Sheriff operate just fine under the Public Information Act, and so would civil service cities if they were brought back under its umbrella. 
Another key, too-often neglected transparency issue: Former Harris County DA Johnny Holmes and the Texas Supreme Court, abetted by the Legislature after the fact, gutted the Law Enforcement exception (Govt Code 552.108) to the Public Information Act in Holmes v. Morales. State Rep. Harold Dutton still carries a bill (see here) every session to change the standard back to what it what from the inception of the Open Records Act until that episode. This change was pivotal, casting a thick blanket of secrecy over information which had been public for decades. If we don't fix the transparency problem - both reinvigorating the law enforcement exception and re-opening disciplinary files in civil service cities - IMO all other "solutions" will founder. 
Accounting for Misconduct in Promotions: Then-state Rep. Chuy Hinojosa filed a bill back in 2001 that never went anywhere but which would have required sustained misconduct to be counted against officers when considering them for promotions, see here. I've always thought that would give a lot more oomph to internal disciplinary decisions than is currently the case and potentially play a big preventive role. 
Bolstering Disciplinary Decisions: The biggest problem with the civil service code regarding police misconduct at Texas police departments is that, too often, fired officers too often don't stay fired. The state could require civil service cities to have a "Uniform Disciplinary Matrix," which is a pre-set array of punishments available for different types of misconduct. This helps prevent arbitrators from overturning punishments when they comply with the disciplinary matrix, including indefinite suspensions/terminations, establishing what's a reasonable punishment as a matter of policy instead of letting the arbitrator make an arbitrary determination after the fact in each case. (See the discussion here.)
There are also an array of special protections in for misbehaving officers in the state civil service code which need to be reformed. And additional provisions limiting accountability are sprinkled throughout meet and confer agreements between local municipalities and police unions. These are all important sites for reform work.

There are other ideas which Blain could have mentioned, including one Restore Justice supported during the legislative session: Eliminating arrests for Class C non-jailable offenses. Arrests are dangerous for both officers and suspects and this reform would reduce their number by more than ten percent.

This is not an exhaustive list, but it's more complete than Mr. Blain's offering in The Hill. There's no sense in limiting the array of possible reforms on the front end, nor in repeating mistakes of the past. See the solutions page at Campaign Zero for more reform ideas.

NRA afraid to confront 'real threat' to Second Amendment

Bravo, Radley Balko!
[The National Rifle Association] is the group that claims to be the only thing preventing the government from obliterating the Second Amendment, yet they’re noticeably quiet about the people doing the most violence to the Second Amendment — the armed, badge-wearing government employees we call law enforcement officers. For all the NRA’s dire warnings about government gun confiscation, the real, tangible threat to gun-owning Americans today comes not from gun-grabbing bureaucrats but from door-bashing law enforcement officers who think they’re at war — who are too often trained to view the people they serve not as citizens with rights but as potential threats. Here, the NRA just doesn’t want to get involved. ...
[T]he NRA’s allegiance to law enforcement has made the NRA indifferent to the ways that police tactics, use-of-force policy and police training violate the rights of gun owners (and those perceived to be carrying guns). And as with most bad criminal-justice policy, the laws, policies and training disproportionately violate the rights of blacks and Latinos — and the NRA is indifferent to that, too. The group does itself no favors when its figurehead spouts lazy, racist dog-whistles; when its aforementioned record of criticizing ATF goes silent when the agency’s aggressive tactics are aimed at minority neighborhoods
Preach, brother!

Wednesday, July 12, 2017

Perverse incentives created by police overtime for court appearances

The Texas Court of Criminal Appeals last month issued an opinion in Ex Parte Mark Bowman, with a dissent from Judge Elsa Alcala, that caught Grits' eye - not because of the issues being decided in the case but thanks to the underlying fact pattern evinced in the discussion.

At issue was a 2004 DWI in Houston and whether the defense counsel was alleged to be ineffective. The evidence of counsel's ineffectiveness? Because of Houston PD overtime rules, the officer had an incentive to arrest people for DWI even if the cases were later dismissed because he received time-and-a-half for the hours he spent in court.

The officer, William Lindsey, testified that members of the DWI task force were "paid overtime, time-and-a-half" for all hours spent in court, giving him a personal financial motive to go to court whether or not an arrest is legitimate. In the prior year, he said, he'd made 476 DWI arrests.

In his habeas writ, the defendant was able to show that Officer Lindsey, from 1992 to 2004, made more money from combined overtime pay than he did from his regular salary. According to the majority opinion, "In the first eleven months of 2004 - the year of Appellant's first DWI arrest - Lindsey earned a total of $145,957, of which only $63,924 was regular salary while $82,032 was paid overtime."

For a while, Lindsey was the highest paid officer in the city. He retired after reporters began to question the situation in 2006. (See contemporary Grits coverage.)

Three criminal defense lawyers, including Doug Murphy, a DWI specialist, testified that failure to secure details about Lindsey's economic incentives amounted to ineffective assistance.  From Murphy's affidavit:
It is common knowledge among lawyers in Harris County who regularly handle DWI cases during Lindsey's tenure on the DWI Task Force that he arrested many people in affluent parts of southwest Houston - regardless of how well they performed the field sobriety tests or how sober they appeared to be on videotape - so he could obtain overtime pay for appearing in court pursuant to a subpoena to testify at their trials. Competent defense lawyers made Public Information Act requests to HPD to obtain Lindsey's payroll records before they tried DWI cases in which he would testify.
Further, wrote Mr. Murphy:
Defense lawyers would present this evidence on cross-examination to demonstrate Lindsey's motive for making the arrest. They typically would argue that Lindsey arrested sober drivers for DWI because he knew that they would go to trial and he would receive overtime pay for appearing in court to testify; that, for this reason, he gave no driver the benefit of the doubt at the scene; that, in effect, he received three days of pay for appearing at a two-day trial; that he received the money even if the defendant were acquitted; and that his overtime pay exceeded his regular pay during his tenure on the task force. Arguments of this nature frequently persuaded juries to reject Lindsey's opinion regarding intoxication.
The other two attorneys' affidavits included essentially similar comments.

A Houston Chronicle story from July 1, 2006* mentioned a "memo ... from a traffic enforcement captain warning that officers were scheming to have themselves unnecessarily placed on court dockets to inflate their overtime totals." So these allegations were coming from HPD brass, not just defense lawyers or the media.

Let's leave aside for a moment the question of whether defense counsel was ineffective, which is the focus of the two opinions. Grits instead wants to raise other questions: Is it good public policy for police officers to have an incentive to make dubious arrests so they can get overtime to show up in court? If testifying is part of a police officer's job, why can't they do it during regular work hours? Is there a way to pay for court time that doesn't contribute counterproductive incentives?

In Austin, the meet and confer agreement (Art. 8, Sec. 3) specifies particularly generous extra pay for time spent in court. For example, an officer who attends court for more than one hour prior to the start of the work day gets credit for a minimum four hours of overtime. Similarly, officers who go to court after work receive a minimum of four hours overtime no matter how long they stay there. So if an officer gets off at 5, goes to court at 5:15, and is out by 5:50, they'd be compensated for four hours at time-and-a-half.

Such pay structures give incentives for police to arrest on trumped up charges so they can justify spending time in court and making time-and-a-half. Such incentives can result in false convictions, particularly when counsel is ineffective or nonexistent. That seems like a more important takeaway for me, anyway, than the ineffective assistance questions at the heart of the debate between the judges over Mr. Bowman's habeas writ.

*No public link: Accessed via subscriber-only Houston Chronicle archives.

Sunday, July 09, 2017

Roundup: Bail reform all about the judges, and other stories

Here are a few odds and ends of which Grits readers should be aware:

5th Circuit: Government can't be held accountable in false convictions cases
The US 5th Circuit Court of Appeals really doesn't want the government held accountable for false convictions. Grits mentioned the other day a case where they said a plea by an innocent man meant he couldn't sue for damages. (An alert reader pointed me to this academic article on the underlying topic.) But they've also recently ruled that even "grossly negligent" forensic scientists can't be held accountable in a wrongful conviction case.

Bail reform still all about the judges
Federal District Judge Lee Rosenthal sounds unimpressed with Harris County's proposed bail fixes, pointing out that if the judges themselves don't change their practices, all will be for naught. Grits has been ringing this bell for many years.

State jail slated for closure subsidized local utility bills
Here's a good example why it's hard to close prison units, even when prison populations go down. It turns out, the city of Bartlett received one third of its city revenue from the Bartlett State Jail, mainly in utility bills which will now go up for all other consumers. This will be true in lots of rural jurisdictions. Prisons are water hogs and are often the largest customer for rural water producers. That's no good reason not to close them, though.

Balko on new specialty courts for Texas cops with PTSD, mental health problems
At the Washington Post, Radley Balko has a good discussion of new Texas legislation creating a specialty court for police officers who commit crimes.  Just a thought: If there are so many cops walking around with PTSD or serious mental illnesses, shouldn't the response be to require departments to identify them and provide support beforehand than just to wait till something bad happens and then give them leniency through some special cop court. What a wrong-headed proposal. Grits doubts many counties will crate the new courts, which are a) optional and b) unfunded.

Rural counties driving overincarceration
Though this article doesn't mention Texas, the problem of rural overincarceration - at the county jail level and also the rate at which counties send people to prison. Most of the incarceration reductions which have allowed Texas to close eight prisons in recent years are coming from the ten or so most populous counties, all of which have witnessed substantial crime reductions over the last decade.

Maybe prohibition is the wrong tool for the job
Treating opiod producers the way plaintiffs lawyers treated Big Tobacco is the best way to combat the opiod epidemic. Ramping up the war on drugs has not and will not worked. As Mark Osler wrote in Forbes recently, the enemy in the drug war is a market, not a group of people. And market forces trump legal abstractions every day of the week and twice on Sunday.

False charges of assaulting public servant often mask misconduct
Grits the other day mentioned two examples of people beaten by law enforcement who were charged with assaulting a police officer and pled guilty, only to be later found actually innocent. I could have added the case of Jerome Bartee, who was beaten by three jailers in the Harris County Jail then charged with assaulting a public servant, a third-degree felony. Those charges were dropped four days after his defense lawyer received a copy of a video recording the incident. Now imagine if a) there were no video and b) charges against Mr. Bartee were a second degree felony under the new law, meaning he'd face up to 20 years in prison. Lots of people would plead guilty to avoid that risk, especially if exculpatory evidence is suppressed or simply unavailable. When your correspondent was Policy Director for the Innocence Project of Texas, I met plenty of people who pled guilty to avoid a longer sentence and were later proven actually innocent. This is how false convictions occur, people.

Friday, July 07, 2017

On the future(s) of nonprofit journalism

When Evan Smith launched the Texas Tribune and nonprofits like Politico and Pro Publica popped up on the journalistic landscape, Grits wasn't surprised. It seemed to me at the time like the logical extension of where journalism must go, or risk an ignominious death by per-click advertising methods. The economic basis that historically paid for journalism has evaporated, but not the need for the public good being provided.

In the alternative, rich folks can either buy a media outlet - like Jeff Bezos purchasing the Washington Post - or subsidize them through tax deductions. But nobody needs to know what's going on in the world more than people in charge of large institutions. So I've long expected the nonprofit sector to step up to fill this public-ed gap; Grits didn't expect to ever reach a point where there'd be NO news.

Ten or 15 years ago, media mavens fantasized that blogs like this one would help fill the gap. Occasionally what happens on Grits is mistaken for journalism for one simple reason: I'm writing about issues that aren't well covered in the MSM and so sometimes an advocate must perform journalistic functions just to lay out a problem, potential solutions, etc.. Your correspondent was blessed in his youth to enjoy some brief-if-formative journalistic experience and learn a few skills. But journalism is a job and if nobody's paying anyone to do it, it generally won't get done. The volume of blogging on Grits goes up and down inversely proportionate to the workload at my paid gig, and that means it's hard for blogs to be a consistent, reliable source of news. Plus, to be clear for what must be the thousandth time, I'm not a neutral source. What you read here are (hopefully) well-informed editorials, for the most part, and only, at most, incidentally "news."

Grits for a while had hopes for the SCOTUSBlog model, where professionals in an issue area - in this case lawyers who practice before the US Supreme Court - finance journalism to fill gaps which professionals need filled. But that project remains unique. In the areas to which I pay attention, there aren't many if any comparable projects. Most actors in the criminal-justice system would prefer journalists NOT cover their activities, given their druthers.

The Marshall Project was the first nonprofit media outlet I'm aware of to focus on a single, broad issue area - criminal justice - by almost quaintly combining the traditional nonprofit and journalism models: Hire a newsroom and run it like the newsrooms of old, just with a donation-based revenue apparatus. The Texas Tribune does this in Texas, as do ProPublica and Politico at the national level: Grits thinks of this model as "Journalism as Charity Case."

What I didn't anticipate was what Grits now perhaps optimistically sees as the next wave of the nonprofit journalism trend: Nonprofits in a specific issue area hiring established professional journalists to cover an under-covered topic - not as communications directors or public relations experts, but as journalists, frequently in collaboration with or even edited by established media outlets.

The first example where I was aware of this was Sam Gross' National Exoneration Registry. Prof. Gross hired Maurice Possley, a Pulitzer Prize winning journalist from the Chicago Tribune who himself had broken important innocence stories. Their site is essentially a journalistic function.

There have been other isolated examples. When in 2015, the Legislature created a new Texas data source to identify police shootings, the Charles Koch Foundation funded veteran crime-beat journalist, UT graduate student, and Grits contributor Eva Ruth Moravec to write a series of investigative reports on police shootings of unarmed people. Moravec's Point of Impact series (she's still in the middle of producing it) has been published in three major Texas dailies, bringing to light important stories which otherwise would not have been covered in depth. (Full disclosure: your correspondent introduced Ms. Moravec to the Koch Foundation people after I spoke at one of their events in 2015. From all I know, it's been a productive partnership.)

But the good folks at the Fair Punishment Project - a project of the Harvard Law School - are taking that model to the next level. They've hired a small clutch of journalists to cover issues related to prosecutors in national publications.

Admittedly, prosecutors are an under-covered topic. (The pfocus must please Prof. Pfaff.) But it's also an oddly myopic lens through which to view a justice system that at times may veer away from justice but is ever and always a system, which means multiple parts coordinated. The prosecutor is an important player, but not the only important one. To name another: Judges are incredibly under-covered, too, considering how powerful they are. E.g., no journalists routinely cover Texas Court of Criminal Appeals decisions. Indeed, more than a couple of CCA judges have told me that Grits' coverage of the court is superior to all of the MSM's. (That's damning with faint praise, something being better than nothing.)

Parole boards,  probation departments, county jails, misdemeanor courts, debtors-prison practices: Many parts of the criminal-justice system remain under-covered, in part because it's so decentralized and locally based - a national story based on a million local stories. FPP has chosen perhaps the most opaque aspect of the justice system to shine a light on, so more power to them. But it's an interesting and non-obvious choice - a national-in-scope journalism project aimed primarily at local actors.

In addition to their own blog (and hey, doesn't every third as%#ole have his own blog?), the Fair Punishment Project has entered into collaborations with Slate, in a series called Trials and Error, and Medium (a site embodying Twitter founder Evan Williams' vision of the media's future) for a feature series titled In Justice Today. But the journalists are employed by a nonprofit advocacy organization. (FP has offices in Houston, D.C., and presumably elsewhere - their office phone has a Raleigh, N.C. area code.)

There has always been a version of nonprofit reporting. Your correspondent has written many, many "reports" for various nonprofits over the last three decades which at the end of the day were glorified investigative journalism projects with a tad longer timelines, more footnotes, and depending on the client, better or worse production values. Such publications are produced to fill gaps in journalism that for-profit reporters would otherwise never fill and one of their functions is to secure "earned media" or "earned coverage" of this or that topic, as well as to educate MSM reporters in hopes that they'll pick up the ball. Whether nonprofits call folks writing such documents "journalists," journalism is what's going on. I've known more than a few ex-reporters who've become somebody's research director which, like communications director, can be a logical extension of the same skill set.

But those are examples of hiring journalists to be something else. Harvard's Fair Punishment Project has hired journalists to perform journalism alongside a more traditional advocacy program. The group has also hired a team of lawyers whom their website says is "helping to create a fair and accountable justice system through legal action, public discourse, and educational initiatives." Asked to describe their non-journalism work in a declarative sentence, FPP's Jessica Brand told me via text that, "We provide academic research on criminal-justice reforms players with power can implement to reduce incarceration and make the system more fair."

My sense is that journalists may struggle at first under these employment scenarios. The targets of their reporting will be less likely to help them compared to MSM journalists who are likely to print DA quotes uncritically and move on to the next story. They will have to develop sources and methods to workaround such stonewalling and still honestly portray the challenges facing prosecutors, who may understandably hesitate to talk to them on hot-button topics. And FPP must perform this work without the advantages of local beat reporters, who have better access to human intelligence. It's not an impossible task, but FPP journalists will have to work harder than their peers to produce a quality product because of the topic they've chosen.

OTOH, prosecutors are for the most part only telling reporters whatever PR-driven message they want the public to hear, not necessarily what the public needs to know. And the get-a-quote model of modern journalism can make journalists lazy and cause them to stop once they get it. Coming at the task from an advocacy stance may just eliminate the pretense, which in turn could force FPP journalists to more routinely take the more difficult path of investigative reporting and records-based documentation. At least, that's been your correspondent's experience regarding advocacy-based reportage.

Regardless, I'm glad they're doing the work. Today, about half as many professional journalists are employed in America compared to when Grits left college. There just aren't as many warm bodies covering news as when our parents picked up a paper in past generations. Grits was created 13 years ago to help plug that gap,* which has thankfully grown a tad less yawning since I started out. So I'm particularly thankful to see others attempting to step into the space on my issue areas and am glad folks are testing a variety of different models. The good ones will be replicated, new institutions will develop, and with a little luck, that's how 21st century journalism survives.

*Prior to creating Grits, from 1997-2004 your correspondent operated a website on police reform, first as the "Austin Police Department Hall of Shame" and then expanding to a statewide focus as the "Texas Police Reform Center." That site was hand-coded in html, for a long time uploaded via dial-up, and predated the era of blog-commenting software. This was all done as a hobby/personal project.