Thursday, February 23, 2017

Priorities, CPS reform and crime

This blog focuses on the criminal-justice system itself and Grits spends little time on other, related areas of government whose failures contribute to crime and hopelessness. There are those who think the ultimate solution to criminality is education, for example, but for want of bandwidth, that must remain someone else's beat.

The crisis at Child Protective Services, however, has reached such a scale that, if not rectified, it will likely result in a crime bump as the cohort ages who were abandoned by the state's penny pinching bureaucracy when they needed help most. The Fort Worth Star-Telegram editorial board this week offered up this observation:
Texas Tribune investigated one of the more dire aspects of the state’s crumbling child welfare system — victims of sex trafficking. 
One report estimates about 313,000 Texans are victims of human trafficking, about 80,000 of them minor and youth victims of sex trafficking. About 78,000 of those victims had some contact with the child welfare system, says the University of Texas at Austin study. 
The Tribune investigation illustrated how the child welfare system fails some children, allowing them to become prey to sex traffickers. It laid out pertinent and reasonable solutions legislators should consider for fixing this atrocious cycle of crime and abuse.
The solutions rightfully focus on victim rehabilitation, decriminalization and prevention, something sorely missing from the state’s current strategy to stop sex trafficking. 
Officials focus on arresting pimps, reasoning if there aren’t any sex traffickers, then children won’t fall prey. 
This logic might sound reasonable, but it misses a major point. The state Child Protective Services agency is so damaged and unsafe that kids are slipping through the cracks to find better living options. 
No child should ever be in the position that a pimp is the most appealing option for housing and food.
The justice system should be the last resort by which society deals with frightened, abandoned kids from broken homes. Instead, according to these reports, some of them consider prostitution a better option than the ones the state has given them.

My tough on crime friends, let's see you get tough on that situation. Because if you don't, more and more of those kids will end up in your adult jails and prisons down the line. And they're going to be angry. This is a more important security spending priority for Texas than anything DPS is paying to do with its "surge" money down on the border.
Read more here: http://www.star-telegram.com/opinion/editorials/article134139659.html#storylink=cpy

Wednesday, February 22, 2017

Texas innocence compensation still looks pretty good (compared to Kansas)

Nice to see that Texas' compensation statute for exonerees remains an aspirational standard for other states. The Kansas Legislature is considering a bill setting compensation levels at $80,000 per year, following Texas' example. A newspaper account of the debate included this Texas homage:
Texas, with its notorious tough-on-crime reputation, has the nation’s most generous compensation law. It pays a lump sum of $80,000 per year served, along with lifetime annuity payments of $40,000 to $50,000 plus $25,000 for every year someone was wrongfully registered as a sex offender. As of mid-2016, the state had paid $93 million to wrongfully convicted Texans.
Kansas' bill differs from Texas in that it does not include the annuity and "would exclude defendants who pleaded guilty or pleaded no contest to the crime," which account for a non-insignificant number of exonerees.

The reason innocence compensation passed in Texas, and the reason this legislation has a chance in Kansas, is that civil suits can cost local government much more:
In the absence of a compensation law, Kansas exonerees still are able to receive compensation through civil lawsuits. Eddie Lowery was exonerated in 2003 after serving nine years in prison for a rape and assault in Ogden that he didn’t commit. Seven years later, he won a $7.5 million settlement from Riley County.
Nine years @ $80k comes to $720,000, so Mr. Lowery would have gotten 9.6 percent of his settlement under the statute (though his attorneys fees had to come out of that larger amount). So local jurisdictions where exonerations have occurred all love the innocence compensation legislation because it a) caps liability and b) offloads liability onto the state.

That said, the lack of annuity in Kansas' statute may create problems down the line, this writer predicts. Here in Texas, our original compensation statute was set at $25,000 per year served. One of the men who received that sum, Wiley Fountain, ended up homeless and pushing a grocery cart around Dallas with all his belongings in it a few years after his compensation. Exonerees who were in prison for a long time, in some cases more than two decades, typically came out with few marketable skills and/or an array of health problems. So before the annuity, many would opt to sue instead of take state compensation, leaving local governments open to much larger liability.

I'm glad to see Kansas is considering an increase to its compensation and glad they consider Texas' system a model. To the extent they do, compensation of exonerees who pled guilty contributes to greater fairness, and the annuity makes the amount significant enough to justify plaintiffs avoiding the uncertainty of litigation.

Texas' law isn't perfect and there are still more situations where clearly innocent people cannot be compensated than one would prefer (the San Antonio Four come to mind). But Texas did a good thing passing that law, and the statute (as well as the compensation package) remains the best in the country.

Folks like Michael Morton, Anthony Graves, the late James Woodard, Christopher Scott, and many others, were able to regain what's left of till-then lost lives and even participate as spokesmen for the innocence movement which helped free them thanks to the security and independence Texas' compensation package gave them. Quite a few exonerees came to Austin repeatedly and busted their humps slogging office to office, session after session, telling their stories to anyone who would listen until that and other priority innocence-related legislation passed.

I don't know if that's what the bill push looks like in Kansas, but legislators here found the tactic irresistible. Good luck to our Jayhawker friends pushing this legislation.

Tuesday, February 21, 2017

Reduce technical revocations to cut prison admissions, costs

Let's delve further into the Government Effectiveness and Efficiency Report prepared biennially by the Legislative Budget Board, in particular on the topic of "Estimated net costs of technical revocations from community supervision and parole" (on pp. 389-393 of the pdf).

Technical revocations are when people's probation or parole is revoked for rules violations or failing to fulfill conditions of release, not commission of a new crime.

In an era when prisons are over-bloated and budget-cutters are looking to cut costs, the number of technical revocations to prison seem ripe for reduction. According to the GEER report, "In fiscal year 2015, 50.0 percent of offenders entering Texas prisons entered as a result of ... revocation."

With half of offenders entering prison coming from this source, reducing revocations is a big potential cost saver for TDCJ. But it's not a priority for local probation departments and so far Grits hasn't seen legislation filed this session aimed at reducing revocations for technicals (someone please correct me if I've missed something).

These days, technical revocations are mainly a probation problem. "Since the implementation of diversion initiatives in Texas, revocations in the parole population decreased dramatically." But, "In contrast to the significant decreases in parole revocations, revocations from community supervision have remained largely consistent." In 2015, 5,608 parolees were revoked en toto, with 910 of them for technical violations. On the probation side, 24,062 felons were revoked, with technical violations making up 51.4 percent of that number (12,362). So it's probation driving the revocation numbers.

A 2007 study, the report noted, found that 94.3 percent of probation revocations led to incarceration in a state jail (52.4 percent) or prison (41.9 percent).

When you examine the issue department by department, revocation rates are all over the map. From this document (p. 15 of pdf) we get the number of revocations  per agency for the ten biggest probation departments. From those data, Grits calculated these rates:

2016 Revocations as Percentage of 
Supervised Felons - Probation

Dallas: 8.3%
Harris: 11.9%
Bexar: 10.0%
Tarrant: 12.5%
Hidalgo: 6.4%
El Paso: 4.3%
Travis: 7.8%
Cameron: 6.6%
Collin: 9.5%
Nueces: 8.8%

Just reducing outliers like Tarrant, Harris and Bexar to average levels (8.6%) would ratchet down the number of annual prison entrants significantly.

Ironically, all these revocations are occurring while recidivism is relatively low. "For the fiscal year 2007 release cohort, the five-year recidivism rate for offenders supervised on parole is 37.0 percent, and the rate for the fiscal year 2010 cohort of offenders on community supervision is 28.1 percent. Moreover, people on probation are "substantially more likely to recidivate based on misdemeanors." 

What should we take from this?
  • The 2007 treatment reforms succeeded in reducing technical violations on the parole side, but probation departments and local judges stubbornly persist in revoking probationers for technicals at high rates.
  • The extent of the problem varies department to department, with a handful of probation agencies revoking disproportionately more people.
  • New policies and incentives must be created to reduce technical probation violations since existing structures from the 2007 reforms aren't doing the trick. Funding the SB 1055 program passed by the Lege in 2011 would be a good start, incentivizing departments to punish low-risk offenders in the community.

Shackled to Debt, Forfeiture Fail, a Self-Interested Revolt, and other stories

Here are a few odds and ends that merit Grits readers attention at the legislative session begins to heat up.

Rebellion of the Clerks: A self-interested revolt
There's only one real reason that clerks don't want a statewide database of court records, and it has nothing to do with quality control. They currently charge a dollar a page for records and don't want to lose the revenue. Their argument is the same as newspapers complaining about online competition from Craig's List for their classified ads. And yet, these are the most public of public records. And there's significant public demand for them. There's really no good reason not to make them available online, and the legislators lining up to stop the rollout of the new system are doing their constituents a real disservice, placing the interests of local elected officials over the public interest. Grits doesn't do oppo work for campaigns anymore, but there's easily an attack ad to be had aimed at anybody who supported a bill aimed at keeping public records from the public via unjustifiably high fees.

More critics denounce forfeiture fail
Momentum for reining in asset forfeiture continues to grow, with prosecutors going on the defensive. Go to the Just Liberty site to send a message to lawmakers supporting reform.

Union bashing bill leaves out law enforcement
Critics at a State Affairs hearing raised the same criticism Grits did about legislation by Chair Joan Huffman to eliminate union-dues checkoffs for public employees - why leave out law enforcement, which are the most powerful public employee unions in the state? The bill was voted out on a 6-2 vote with the disparate treatment intact.

TDCJ chief exec interviewed
See an interview with new TDCJ chief mugwump Brian Collier from the Huntsville Item.

Raise the Age!
Three different newspaper editorials this week backed so-called raise-the-age legislation:
For more background, see the House Research Organization's primer on the topic. Go to the Just Liberty site to send a message to lawmakers supporting this legislation.

If you've got the money, honey ...
As I write this, there are folks scouring the budget to find money to eliminate the Driver Responsibility surcharge. For their benefit, here's a presentation from the Legislative Budget Board last year with a great deal of seldom-discussed detail about the program. (Send an email to your legislators asking them to abolish the surcharge.)

Shackled to Debt
New report via Harvard's Kennedy School and the NIJ: "Shackled to Debt: Criminal-justice Financial Obligations and the Barriers to Re-Entry They Create."

Momentum for additional prison closures growing

At a Texas House Appropriations subcommittee meeting this week, legislators and staff openly discussed the possibility of additional prison closures in response to the budget crunch. Reported Mike Ward at the Houston Chronicle/Express-News:
State lawmakers may consider shuttering another prison and paroling some older, infirm inmates to nursing homes in a bid to shift more than $400 million in funding toward rising health care costs and much-needed repairs and upgrades to Texas’ aging corrections facilities. 
The state already is poised to spend more than $6.7 billion over the next two years for prisons and corrections programs. But with the legislature looking at the tightest state budget in years, lawmakers quietly are looking for ways to save $421 million in the Texas Department of Criminal Justice operations to cover surging costs associated with overseeing the state’s 147,000 convicts. 
Topping the list is $247 million to pay the costs of convicts’ health care during the next two years, including facilities, doctors, equipment and medicines.
Over and above last year's budget, TDCJ has asked for $55.6 million for facility repairs, reported Ward. Plus, "The department says it also needs another $19 million to upgrade its 40-year-old mainframe computer system, $15.4 million for 1,000 additional substance-abuse treatment beds, and $10 million for a video surveillance system in three maximum-security prisons."

One minor correction. Ward had written that, "Forty-six percent of the state’s convicts are over age 55, a group that accounts for 40 percent of expensive hospital visits, officials said." Whether officials said that or not, it is not correct. According to TDCJ's annual statistical report, as of Aug. 31, 2015, about 20.3 percent of TDCJ inmates were 50 years old or older. (See here, p. 17 of the pdf.) That's up more than 70 percent from 2005, when 11.9 percent of inmates were 50 or older. (See here, p. 17 of pdf.) But it's not 46 percent.

Senate Criminal Justice Committee Chairman John Whitmire suggested budgeting priorities on corrections which were music to this writer's ears: “We have thousands of empty beds at 109 state prisons. You shut some prisons, mothball some and consolidate the inmates. Then reinvest some of the money you save in treatment programs that save even more. The savings could be very significant.” Bingo! (Via Just Liberty, send a message to your elected officials supporting the treatment-not-incarceration agenda.)

That said, TDCJ chief Brian Collier wasn't offering the committee options that would maximize cost savings. For example, reported Ward, Collier said that "officials are considering whether to combine two side-by-side prison units in Colorado City, in West Texas, to save millions more." I agree with that closure - in fact, it'd make sense to close both of them. TDCJ struggles to find sufficient staff, among other problems. But in a tight budget year, I might not do them first.

Here's the rub: Savings from closing state facilities take time to materialize because it takes time to shutter the units, sell the property, etc.. Savings didn't really result from closing the Central Unit for a couple of years. By contrast, there are a bunch of private prison units with contracts up at the end of August. Ending those contracts would result in immediate savings with no wind down time. In a tight budget year, that's the quickest way to achieve maximum savings. There is sufficient capacity in the rest of the system to close a couple of those units.

Grits supports more prison closures whichever way they go. But my fear is that, if closures are approved on the basis of cost savings which don't fully materialize, closing more down the line may be harder. (And I believe Texas should close a bunch.) Targeting closures to maximize savings in the short term to me makes more sense. But regardless of which prisons Texas closes, we should close more, and the Legislature should start the process now.

Sunday, February 19, 2017

Forensic backlog at DPS due to free lunches for Lubbock, other freeloader PDs

There's no such thing as a free lunch, unless you're a police department in Texas looking for no-cost crime lab services. Then you can call DPS and by law they must provide services for free. The predictable result is a massive backlog. From the new Government Effectiveness and Efficiency Report prepared biennially by the Legislative Budget Board - the one the Lt. Governor didn't want released:
According to the Department of Public Safety, from calendar years 2010 to 2015, the crime lab’s forensic evidence backlog increased from approximately 22,000 to more than 33,000 submissions. Among respondents to a 2016 survey conducted by the Texas Center for the Judiciary, 96.2 percent indicated that the wait for lab results had led to court delays. 
The Department of Public Safety’s crime labs do not have standard procedures to ensure all forensic testing is necessary at the time testing occurs. There is also not a policy that allows the lab to halt testing determined to be unnecessary. As a result, unnecessary testing may occur, reducing resources that could be used to address backlogs. Implementing a process to systematically check the need for testing in certain circumstances could reduce crime lab workloads and enable them to operate more efficiently.
Further, "The Department of Public Safety crime labs complete all testing that has been started and do not have a policy to halt testing for certain situations, such as the requesting agency notifying the lab that testing is no longer necessary."

The caseload for drug evidence is significant, with waiting times, even nearly as long as for DNA. "DPS crime labs conducted 44,965 drug evidence tests in fiscal year 2015 with an average turnaround time of 123 days." The longest waiting time was for trace-evidence analysis, which on average takes nearly a year.

As regular Grits readers may recall, crime lab delays are a significant cause of delay in processing drug cases, causing defendants in some cases to languish in jail until results come back:
Furthermore, the nonprofit Texas Center for the Judiciary conducted a survey in January 2016 regarding sources of evidence delays that was sent to all active district and county court at law trial judges. The survey asked the respondents to identify sources of delay. Of the 130 individuals who responded to this question, 125 respondents identified crime lab results as a source of delay. Delays can result in issues including increased jail costs, attorney fees, and impediments for expert witnesses. DPS indicated delayed forensic testing results can affect plea agreements. For instance, local jurisdictions may not offer plea agreements in drug cases until lab results are received.
Some of this work turns out to be unnecessary:
In 2015, the DPS crime lab in Midland reduced its drug backlog 66.0 percent. The lab achieved this reduction by closing 1,641 cases without analysis as a result of communicating with district attorneys to determine whether testing was still required. DPS also reduced the drug backlog by 20.0 percent by working with local stakeholders who used the five labs with the majority of the statewide backlog to ensure forensic testing of the cases were still needed for prosecution.
Finally, this writer was unaware of the extent to which DPS crime lab expenditures subsidize Lubbock PD and a few other high-use jurisdictions:
In calendar years 2013 and 2014, DPS received an average of 87,642 testing requests each year from 2,310 law enforcement agencies. Approximately 22,000 of all testing requests in these years were from 25 users of the DPS crime lab, and the Lubbock Police Department (LPD) requested more testing from the DPS lab than any other agency. DPS reports that the criminal justice system requires a quicker response for many cases than the DPS crime lab can provide. LPD reports that it has had concerns with the timeliness of DNA and trace evidence testing for forensic evidence submission to the DPS crime lab. LPD reports an average wait time of two to three months for trace evidence and three to six months for DNA analysis. 
DPS' main problem is that it is not allowed to charge users a fee so departments who want to freeload off the state send their cases there instead of to a private lab or hiring their own experts. If the state created a reasonable fee structure charging market rates for testing, it would solve the problem entirely. It's one thing for the DPS to run crime labs for its own enforcement purposes and to let locals process cases there. But there's no good reason for the state to give everyone a freebie.

RELATED: DPS reaching limits to unsustainable crime lab model: Tells agencies to reduce DNA, drug testing requests.

Thompson seeks upgrades on police use of force, disciplinary processes

On Friday, long-time Houston state Rep. Senfronia Thompson filed a major piece of police accountability legislation, HB 2044, which expands on the transparency proposal filed in the senate to include new provisions on police discipline, racial profiling data collection, and use of force.

Use of Force Revisions
In the context of high-profile police shootings which have garnered national attention over the last couple of years, perhaps the most important part of the bill would change the statutory authorization to use deadly force when effecting an arrest. Previously, police could shoot someone when effecting an arrest if the suspect's alleged conduct included "the use or attempted use of deadly force," or if there is a "substantial risk" that "the person to be arrested will cause death or serious bodily injury" to someone else.

Under Thompson's revisions, in order for a police officer to be justified using deadly force, a suspect must pose an "imminent threat of death or serious bodily injury" to another at the time they are killed. There's no status of offender - people accused of deadly force offenses - who can be automatically shot, which is how the law reads now. Instead, there must be an "imminent threat" of harm at the time of the shooting, not just a "risk" that harm may be caused in the future. That's a small but significant change.

Upgrading Racial Profiling Data
Another section of the bill improves data collection provisions under Texas' 16-year old racial profiling data collection law to require all agencies to gather information on the rate at which they discover contraband when they search drivers at traffic stops. In many jurisdictions, including both Austin PD and DPS, black folks are searched far more often even though searches of white drivers are more likely to uncover contraband.

Grits has argued that the contraband hit-rate data should be used as part of an "early warning" system to identify officers with problematic enforcement patterns. I had hoped we'd see this improvement to the data collection regimen implemented years ago, but the legislation never materialized.

The bill would also improve racial profiling data by requiring inclusion of stops where divers were let off with a warning, not just where tickets were issued, which will ensure that hit rates are not inflated.

Reforming Police Disciplinary Processes
The section on police disciplinary processes focuses on the civil service code for police and firefighters, which covers seventy-some-odd departments statewide whose voters at some point (usually in the distant past) voted to opt into the provision of Chapter 143 of the Local Government Code.

For starters, the bill would insist that "meet and confer" agreements (basically a right-to-work-state version of "collective bargaining") cannot weaken statutory disciplinary procedures.

Perhaps the most significant change to the disciplinary process would require departments to create a "disciplinary matrix" with a pre-set array of punishments prescribed for various types of misconduct. The purpose of this is to prevent punishments from being overturned by arbitrators when different officers are given different punishments. If the punishment falls within a prescribed array set out by policy, the arbitrator is under much greater pressure to deem it "reasonable."

In an important addition, "failure to appropriately de-escalate" in accordance with training would become a grounds for discipline on the matrix.

A disciplinary matrix also has the benefit of setting expectations among officers. If they know that certain actions may result in more severe consequences, there's less to complain about when somebody is fired or severely punished.

Grits particularly likes the provision in the bill that says departments cannot open a promotional exam to an officer who has had a sustained excessive force complaint in the last six years. In addition, other types of sustained disciplinary actions from the prior six years would result in points deducted from the promotion exam score. That's a serious deterrent to misconduct.

The bill keeps the "180 day rule" for firefighters, but expands the time civil service police departments have to investigate and punish misconduct to one year. That will resolve a lot of problems and end a bunch of excuse making, in this writer's judgment. I can't tell you how many times that rule is used as an excuse for shoddy investigations on one hand and agencies rushing to judgment on the other. These are bureaucratic processes and, especially in serious or complex cases, they can take more time than the statute gives them.

The bill also takes a stab at fixing the problem Sen. Juan Hinojosa aims to address in his SB 783: The Michael Morton Act requires prosecutors to hand over impeachment evidence about witnesses to the defense, but by law neither they nor the public can know about police officer misconduct if it does not result in a suspension or termination. So, for example, misconduct punished through reassignment, retraining, written reprimands, etc., can't be known even if a) prosecutors are obligated to disclose the information by law and b) the same information is a public record at the more than 2,500 other law enforcement agencies statewide.

HB 2044 is perhaps the most significant piece of police accountability legislation proposed in Texas since the turn of the century. Any one portion of it is important. Taken as a whole, the bill represents an enormous step toward restoring public confidence and improving accountability in law enforcement and perhaps even defusing some of the tensions surrounding high-profile critical incidents.

CORRECTION: This post originally misstated what was described as a new reporting requirement to the Texas Commission on Law Enforcement. The writer had misread a reference to local civil service commissions and regrets the error.

Saturday, February 18, 2017

Snacks to tide you over ...

Here are a few odds and ends which merit Grits readers' attention while your correspondent's is focused elsewhere:

Friday, February 17, 2017

Texas should decarcerate before heat litigation spikes costs

The decision by a federal district judge to allow Texas' prison heat litigation go to trial places state officials in a bind.  Grits has said for many years that the only way Texas will ever pay for heat mitigation beyond what it does now is if litigation succeeds. The state has been kicking the can down the road for many years whenever people complain or someone dies.

Now that a trial is imminent, however, there's a big risk taking the case to a jury. The cost of cooling prisons to the same levels required at county jails would be a budget buster - possibly as much as $100 million per facility, reported the Houston Press, though that figure sounds too high to this writer. Some units may need to close because they're too outdated to retrofit.

Will the state settle? I doubt it. But it might be the smart thing to do.

It should be mentioned that this is also an argument for implementing further decarceration reforms this session - perhaps reducing low-level drug penalties from a felony to a misdemeanor - since the state needn't pay to cool inmates whom they do not incarcerate. So even if the litigation isn't complete, that's something they can do to reduce baseline prison costs before the feds make them tack on an air conditioning bill  If federal courts order TDCJ to perform heat mitigation, it will be a little late to start thinking about reducing prisoner numbers.

Thursday, February 16, 2017

Asset forfeiture trumping political opposition

Remarkably, President Trump's critical comments last week about Texas senators supporting asset-forfeiture reform legislation appear to have re-energized the push rather than harmed it. At a capitol press conference yesterday, the Texas Public Policy Foundation released a poll showing that 88 percent of Texans favor requiring a criminal conviction before the government can forfeit personal property.

Several different approaches have been suggested and prospects for reform are brighter than at any time in recent memory. Cops are becoming defensive and a police chief interrupted the press conference to complain about the use of the phrase "policing for profit." Of course, they could prove they're not policing for profit by supporting Sen. Don Huffines' bill to divert all forfeiture proceeds to crime victims. Or, they could follow this suggestion to spend forfeiture money on public defenders instead of letting cops and prosecutors eat what they kill. Until then, "policing for profit" isn't an allegation about what's going on, it's simply a description.

See past Grits coverage here, here, here, and here.

Harris DA: Cease arresting pot smokers

Grits was glad to see new Harris County DA Kim Ogg implementing more aggressive marijuana diversion policies, even than her predecessor Devon Anderson. Reported the Houston Chronicle:
The policy, set to begin March 1, means that misdemeanor offenders with less than four ounces of marijuana will not be arrested, ticketed or required to appear in court if they agree to take a four-hour drug education class, officials said. 
Ogg said the county has spent $25 million a year for the past 10 years locking up people for having less than 4 ounces of marijuana. She said those resources would be better spent arresting serious criminals such as burglars, robbers and rapists. 
"We have spent in excess of $250 million, over a quarter-billion dollars, prosecuting a crime that has produced no tangible evidence of improved public safety," she said. "We have disqualified, unnecessarily, thousands of people from greater job, housing and educational opportunities by giving them a criminal record for what is, in effect, a minor law violation." 
Officials have said it could divert an estimated 12,000 people a year out of the criminal justice system and would save officers hours of processing time now spent on low-level cases. More than 107,000 cases of misdemeanor marijuana cases have been handled in the past 10 years, officials said. ...
At the sheriff's office, the new policy will save up to 12 hours of processing time per month for as many as 1,000 suspects, a move that will ease the workload on administrators and jailers who transfer and process inmates, officials said. 
See a description of the program from HCDAO, reactions from the Texas Criminal Justice Coalition and the Texas Organizing Project, and an estimate of the economic benefits (~$26 million per year) from the new policy.

All this said, the problem with programs based on prosecutors' discretion is that they're based on prosecutors' discretion. She could change it tomorrow, or another DA could be elected down the line and change it back. That's why the Legislature should act to reduce penalties for low-level pot possession, either to a Class C misdemeanor or a civil penalty, to eliminate most arrests for marijuana a) statewide and b) permanently. This is a positive step, but hardly a final one.

Monday, February 13, 2017

'Outdated messages,' and timely ones

A few odds and ends while your correspondent is focused elsewhere.
  • Maybe Texas should build a monument to legislators who end asset forfeiture, writes conservative commentator Roy Reynolds in rebuttal to President Trump's recent digression on the topic. Well done. Columnist George Will also took a run at the topic. MORE: The President's unexpected approbation for civil asset forfeiture appears to have gone a long way toward consolidating support for reform. See supportive commentary from the Dallas News, the Abilene Reporter-News, and an op ed from state Sen. Juan "Chuy" Hinojosa in the McAllen Monitor. ALSO: From the New Yorker, which places the President's comments in the context of Texas' Tenaha case.
  • Check out coverage of Harris County bail litigation from the Houston Press. Can we please clone Meagan Flynn and spread her dopplegangers around the state to report courthouse stories? She's doing a bang up job on this complicated subject.
  • Retired Dallas Chief David Brown was among a law enforcement group visiting the President this week seeking criminal-justice reform. Here's a report he co-authored suggesting a criminal justice agenda for the new Administration.
  • Ron DeLord, long-time CLEAT mugwump and police union attorney, has a new book out he's co-written with Ron York arguing that police unions have overreached. They believe that tactics of bitterly attacking all who criticize union stances, hoping to intimidate critics into silence, aren't working anymore. For example, "Outdated messages such as 'we risk our lives' are no longer resonating with elected officials or the public." I just got my copy in the mail, hot off the presses, and am only a couple of chapters in, but you'd almost think the Dallas police pension fiasco is a tailor-made case study of what he's talking about. Maybe he'll get there.
  • The other book which came in the mail this week was a review copy of Prof. John Pfaff's Locked In. Grits has discussed his theories in the past and will have more to say when I read the full volume.
  • Notifications of defendants where the Austin DNA lab screwed up, beginning with possible innocence cases, have begun to be sent out. There are about 2,200 cases in the first batch, of which they only had good addresses for 642. As is the case in the aftermath of all large-scale forensic errors, this will be an ongoing problem.

If crime is down, legislator asks, why are indigent defense costs rising?

A Republican state representative emailed to ask:
Do you think that indigent defense costs have exploded in Texas? 
I'm told crime is down. 
I'm told that probation numbers are down. 
But why is indigent defense $220 million?
On the assumption he's not the only person wondering about this, here's how Grits responded.
1. Crime is down, but per John Pfaff, prosecutors increased the number of convictions per arrest since 2001. See here and here
2. So the number of cases increased even as crime declined. 
3. With the increased number of cases came increased indigent defense costs.

4. Also, costs per case rose because of inflation as well as quality standards implemented in the 2001 law and by the Texas Indigent Defense Commission thereafter. This was necessary. Defense quality was and still is quite low. 
Those are the basics.
The key chart showing how prosecutors' decisions kept caseloads rising. even as crime fell after the turn of the century, comes from this Grits post:

Convictions, Arrests and Reported Index Crime 
as a Fraction of 2001 levels, through 2011

So, criminal court caseloads have become disconnected from crime rates in a way that's counter-intuitive but which is a big driver of indigent defense costs. Through the exercise of prosecutorial discretion, people are being charged and convicted in low-level cases which, when Grits was a young man, would have been dismissed. These are local decisions by local actors, even if DAs and judges like to blame state government for their woes. As Grits wrote recently, arguments about exploding indigent defense costs ignore the much greater unfunded mandates those local actors impose on the state. 

Grits is sympathetic with county officials who must cover the rising costs. But state regulations explain just part of the increase since 2001, and are likely less of a factor than the actions of local decision makers. Subsidizing those locals without holding them accountable for excessive volume underlying higher indigent defense costs won't eliminate the problem, it would just shift the burden to the state, which - new flash! - is funded by the same taxpayers as the locals.

Sunday, February 12, 2017

Peeking at Washington through a seemingly permanent face-palm

This blog attempts to the extent possible to stick to Texas state criminal justice politics, but sometimes national issues and politics intervene. So allow me to share a few perhaps relevant thoughts Grits had today on some of the new policies and pronouncements emanating out of Washington.

Asset forfeiture and reading criminal-justice tea leaves
In the wake of President Trump's interjection into Texas asset forfeiture politics (see Grits coverage here and here), the Star-Telegram has a good article describing how the president's condemnation ironically energized proponents of the push rather than stymied it. “Bill Miller, an Austin consultant and lobbyist, said the Trump episode transformed civil asset forfeitures into a suddenly hot topic. 'It didn’t have any visibility until Trump sort of called it out,' Miller said. 'Now it sort of went from zero to 100 miles an hour.'” See also Maurice Chammah's Marshall Project story, in which some of our Right on Crime friends were quoted rebutting the President on conservative grounds.

An oddity about this story: When one delves into the details of Donald Trump's comments on asset forfeiture, as this column by Reason's Jacob Sullum illuminated, it turns out he doesn't really understand what it is or what's being criticized. The episode sowed concern even among conservative commentators, including the observation that, even if one believes he were joking, "It does nothing for public trust of either the president or law enforcement to be seen cavalierly laughing it up about abuses of power."

Adding to a sense that criminal justice policy is not particularly a presidential priority in an era when crime is low, Trump's three new executive orders on criminal justice invoked more sound and fury, but signified next to nothing. Compared to other executive orders like on immigration, these were complete snoozers.

OTOH, as Grits suggested last year, Trump's SCOTUS nominee will probably be better than Merrick Garland  on criminal-justice topics (a low bar), just as Scalia was before him. Go figure.

Meanwhile, former Dallas Police Chief David Brown was among law enforcement officials this week proposing a more evidence-based crime reduction initiative to the President. No word what the President thought of it, but the agenda stands in stark contrast to Trump's discussion with Sheriffs earlier in the week.

Like much else throughout the Administration's early days, signals on criminal justice probably have created more confusion and chaos than clarity. It's easy to say what positions the President has taken, but next to impossible to discern what policies he'll pursue.

Where are defenders of Texas' economy?
Normally Grits focuses on criminal-justice topics, but this morning I've got a little time on my hands and find myself pondering questions of Trumpian policies and the Texas economy. Though Texans voted overwhelmingly for the president in November, his stated agenda amounts to a direct attack on Texas' economic vitality.

For example, it's fine to talk about mass deportations and ICE raids on the campaign trail. But in the real world, illegal immigrants make up a whopping nine percent (9%) of Texas' work force. That's one in eleven workers. In some industries, like agriculture, construction, landscaping, and domestic work, the proportion is much higher. Of course, calls for mass deportations are impractical and real-world outcomes will never match such rhetoric. But even doing it piecemeal by deporting people arrested for traffic tickets, or who commit some other minor offense, will create big and small shocks throughout the economy. That's in addition to disrupting families and diverting and perverting law enforcement priorities toward policing a population which commits few crimes. Bottom line, we've already seen this movie: the Obama Administration's experience shows this tactic will do scarce little to reduce criminal activity. So there's not a great upside considering the economic damage which could be done.

Second, the idea that so many Texas Republicans backed a man who would repeal NAFTA and replace it with protectionist tariffs has struck Grits from the get-go as foolish and detrimental to Texas' economy. It's hard to overstate NAFTA's benefit to Texas. Mexico built a superhighway system connecting both their exporters and Pacific ports to Texas' transportation systems at the border. The expansion of the Panama Canal ramped up activity at Texas ports. Thousands of manufacturing plants pump out product in the maquiladora districts along the border. Texans make a lot of money this way.

Tariffs would hack away at profits for hundreds of American/Texas companies and, all of this economic activity will slow if Trump slaps on a 20 percent import tax. Best case, Texans pay more for the same goods and services; worst case, that happens, plus hundreds of businesses close and many thousands of Texans lose their jobs.

Then there's our energy sector. With fracking already underwater because of low oil prices, the Trump Administration arrives with pro-coal agenda that amounts to a direct attack on natural gas produced in Texas. The only way to make the coal industry viable again is to subsidize it to such an extent that it can start to compete with natural gas. Such subsidies will harm Texas' already-reeling energy sector, but somehow Texas Trump supporters seem not to notice or care.

If Trump does all of these things in the near term, the outcome could rival the long, deep recession of the late 80s, when an oil bust and the collapse of the savings and loan industry devastated Texas' economy.

In my youth, one often heard it said that "all politics is local." But Texas' politicians, for reasons Grits cannot quite understand, appear uninterested in championing the state's economy, deferring instead to a New York billionaire's vision of the national interest at the expense of their constituents' pocketbooks.

For now, when all this remains speculative, I suppose Texas pols can get away with ignoring their constituents' economic interests. But in the medium term - certainly before the 2018 elections - one would be surprised if industries harmed most by Trumpian policies aren't looking for elected officials to provide their complaints a voice. Hell, I'm surprised it hasn't already happened.

RELATED: From a guest column at the Dallas News, "Worse than threatening a state senator is Trump's support for police taking people's stuff."

Saturday, February 11, 2017

About that custodial death report database...

Without being asked to do so – not counting the frequent requests for information – the Texas Attorney General’s office spent $150,000 to index and display reports of deaths in law enforcement custody.

According to records released in response to this scribe's request, the state paid Neos Consulting Group $157,031 to create the database last June. The site, featuring a searchable index of PDF reports on the deaths of Texans, went live in December, the Houston Chronicle reported.

When asked why the office voluntarily set up the database, a spokeswoman for Attorney General Ken Paxton cited “transparency and easier access to the information by the public.”

The reports on deaths of people who die while in the custody of Texas law enforcement have been required for years. Before the new database went live, the office posted online a list of reports that were available, but one would need to file an open records request to obtain the report.

“These reports play a vital role in providing transparency between law enforcement and the public by requiring custodial deaths to be properly reported, investigated, and filed with the OAG for public access,” said Kayleigh Lovvorn, a spokeswoman for Paxton.

While the database is limited to custodial death reports, one could surmise that a similar database for officer-involved shooting reports – also required by state statute – may carry a similar price tag.

In 2015, Rep. Eric Johnson, D-Dallas, authored a bill requiring the reports that then became law. Initially, the proposal called for the reports to be posted online in a searchable database, but that requirement was cut in negotiations because of a hefty cost, Johnson said.

This year, Johnson’s at it again. Aside from two other bills that would tie compliance with the police shooting reports requirement to state funding, he’s also proposing requiring the Attorney General’s office to establish a portal for all state-required law enforcement reports.

That would undoubtedly cost precious cash in a tight budget year, but would also increase transparency and enhance public access - or at least the appearance of those things. Texas State University professors last year determined that hundreds of custodial deaths from 2005 to 2015 were missing from the database. Our own Amanda Woog confirmed that about 200 deaths - about one-quarter of those that have occurred in the past decade - were unreported, and the Class B misdemeanor punishment reserved for agencies that don't report their deaths had never been used.

No word from the AG's office on what - if any - role the new index will play in ensuring that agencies comply with the law.

More detail on raise-the-age proposal

An Austin Statesman story by Phillip Jankowski yesterday gave some details on Texas' 17-year old population which would be affected by "raise the age" legislation. Grits wanted to highlight and annotate a few fact bites from the story for future reference:
Texas is one of only seven states that continue to prosecute 17-year-olds as adults despite a Supreme Court ruling that marks the age of adulthood at 18. In 2015, that meant that about 22,000 teenagers who would have been prosecuted as juveniles in the majority of the United States. were instead tried as adults in Texas, according to data compiled by the Texas Criminal Justice Coalition.
The 22,000 number for 17-year olds arrested statewide (not "tried") is down from more than 46,000 in 2008, so crime by 17-year olds is already rapidly diminishing. Moreover, "About 87 percent of those arrests are for nonviolent offenses, including misdemeanor theft and possession of marijuana, which respectively were the top two most common charges filed against 17-year-olds, the data showed." So the volume which would be added to the system overall would be fairly small.

Jankowski included this discussion of how the bill would affect the juvenile system:
Upping the age of adult prosecution from 17 to 18 would no doubt have a large effect on Texas’ juvenile justice system because it would increase the number of juvenile arrests by 40 percent, from nearly 53,000 to about 75,000, according to data from the Texas Department of Public Safety.  (Ed. note: don't forget 87 percent of these new defendants are charged with nonviolent misdemeanors.)
Wu said the cost involved in increasing the capacity of local and state programs to accommodate more juveniles would be offset over time by reducing the amount of people in Texas’ prison system and by rehabilitating 17-year-olds who might reoffend under the current system because they lack of access to rehabilitation programs. 
“In the juvenile system, they would be eligible for more programs, like counseling and tutoring,” Wu said. “What we’re just saying is: Let’s give these kids a second chance,”
Economic analyses from other states confirms Wu's contention that making this shift saves money for the justice system long term, despite extra short-term expense.

On the flip side, doing nothing shifts costs of housing 17-year old defendants to Sheriffs and adult county jails. Smaller jails, in particular, have trouble meeting restrictions under the federal Prison Rape Elimination Act on housing 17-year olds within "sight and sound" of older inmates.

As a result, for example, Hays County spends about $150,000 extra per year to house 17-year olds. In Williamson County, they assign "a single corrections officer to a small amount of 17-year-old inmates while every other corrections officer oversees 48 adults, Sheriff Robert Chody said. When Chody spoke to the Statesman, they had four 17-year-old inmates in the jail."

In Travis County, where extra bed space allows them to more easily accommodate 17-year olds than smaller jails, "In 2016, 17-year-olds were booked into the jail 787 times, accounting for 11,520 “bed days” at a cost of roughly $725,000, according to the sheriff’s office." So 17-year olds were spending on average two weeks in jail per arrest.

There's a tendency in the press to focus on issues of fairness, or as the Randall County DA put it, on the fact that "17-year-olds can’t do anything as an adult except be tried as one." But as Grits frequently reminds my granddaughter, "fair is a place they judge pigs." The pragmatic arguments surrounding this proposal continue to be the best reason to do it.

See prior, related Grits posts:

Friday, February 10, 2017

Transparency bill will please prosecutors, police accountability advocates ... unions, not so much

With SB 783, State Sen. Juan "Chuy" Hinojosa has filed a rare example of legislation which should make police accountability activists and Texas prosecutors equally happy. The catch: Police unions will react as though their hair is on fire.

Can't please everybody, I suppose.

Disparate transparency
Hinojosa's bill addresses a 30-year old loophole created by the then-Democratic-controlled Lege to make police disciplinary files secret records in the 70 or so cities which have adopted the state civil service code (Ch. 143 of the Local Government Code). In the other 2,500+ Texas law enforcement agencies, those records are governed by the Texas Public Information Act and virtually the entire file is a public record, with a handful of exceptions involving personal privacy and other statutory limits.

In civil service cities, the personnel file always remains closed and the public can only see summaries of the underlying misconduct in cases where the officer is fired or suspended from work. Under the public information act, the overwhelming majority of documents in that file are public records.

This leads to an odd situation where, for example, police misconduct at the Austin PD must be concealed from the public if the officer is given a warning, reassignment, or any punishment less than a suspension. By contrast, at the Travis County Sheriff's office down the street, if a deputy engaged in the exact same misconduct, their file and the results of the investigation would all be a public record.

Similarly, Dallas and El Paso are the two largest cities which have not adopted the civil service code, and the public in both of these cities gets greater transparency about misconduct at their police departments than do nearby towns where police operate under civil service. In Dallas, this creates a situation where the largest city in the county is fully transparent about police misconduct, generating far superior reporting about the agency by the local press, while in most of the smaller suburban jurisdictions that surround it, most information about police misconduct is kept secret.

Making prosecutors happy
It's easy to understand why police accountability activists want these files open. Why would prosecutors be happy about it? To answer that question, one must recall the passage of the Michael Morton Act by the Texas Legislature in 2013, which strengthened requirements that prosecutors disclose exculpatory, mitigating, and impeachment evidence beyond minimalist requirements in federal precedents under Brady v. Maryland.

Under the Michael Morton Act, prosecutors are responsible for providing the defense with impeachment evidence about their witnesses, including police officers. But prosecutors aren't allowed access to police personnel files any more than are open records requestors under the civil service law. So situations have arisen where prosecutors are held responsible for failing to turn over impeachment evidence which was in possession of the police department but concealed from them by statute. It's considered an act of prosecutorial misconduct to fail to turn over impeachment evidence under the Michael Morton Act, so the secret personnel files put prosecutors between a rock and a hard place.

Perhaps the poster child case for this phenomenon was the Carlos Flores case in San Antonio. Flores pled no contest to assaulting a police officer. But it turned out the officer had beaten Flores severely and then charged his victim with assault. SAPD knew about the incident but did not inform prosecutors that the charges against Flores were a lie. An innocent man was convicted, and later exonerated. (Kudos to the Bexar DA Conviction Integrity Unit for taking a second look at the case.) No prosecutor wants to be blamed by the courts or the media for not turning over information to which they by law don't have access.

Expect nuclear response from police unions 
While prosecutors and police-accountability advocates can commiserate over this feel-good bill, one may expect police unions to react as though the coastal-based senator had suggested chunking babies into the sea. As they're doing in their pension fights, police unions will invoke the officers killed in Dallas and other in-the-line-of-duty deaths and pretend that somehow their sacrifice merits keeping the public in the dark about bad cops. With prosecutors on the other side of the issue, though, that case will be more difficult to make.

To understand this reaction, it's helpful to know a little about the nature of Texas police unions. Texas is a right-to-work state and unions are weak here. To the extent that police unions wield more power than most, it's because their primary function - over and above collective bargaining, which most Texas cities don't have - is essentially to provide Misconduct Insurance to their officers, promising to deploy a phalanx of experienced, hyper-aggressive attorneys and advocates to defend bad cops when they screw up. That's the main thing union dues pay for: When an officer gets in trouble, they may count on a level of legal assistance most criminal defendants couldn't dream of having.

So keeping police from being held accountable for misconduct is a primary police union function, and that includes keeping sustained misconduct out of the public record in case the officer ever wants to change jobs and apply to another department.

In reality, the other 2,500+ Texas law enforcement agencies which for generations have operated under the Public Information Act face no significant problems as a result, so the arguments for keeping these records secret are weak and self serving. That doesn't mean they won't be loud and overheated. Tis the nature of these sorts of debates.

Thursday, February 09, 2017

Texas House committee assignments out

Congratulations to new committee chairmen Joe Moody in House Criminal Jurisprudence and James White in House Corrections. These appointments are generally positive signals for reform legislation this session. See this year's appointments.

In particular, Chairman Moody's bill reducing low-level marijuana possession to a civil penalty didn't get a vote in 2015 until late in the game, and then in a chaotic, throw-in-the-kitchen-sink type hearing which muddied the issue more than clarified it. One expects in 2017 that that legislation may receive a higher profile early on, giving it a much better chance of passage. Another good sign for bills coming out of this committee: Todd Hunter, Calendars Committee Chairman, is vice chair of House Criminal Jurisprudence under Moody. So the committee's work will definitely be on his radar screen.

Chairman White, for his part, has been increasingly reform minded, especially when it comes to debtors-prison type issues.

Another relevant change: Phil King took over Homeland Security and Public Safety from Larry Phillips, who moved to chair Insurance. (Legislation related to DPS and the driver responsibility surcharge goes through this committee.)

Harold Dutton retained chairmanship of the Committee on Juvenile Justice and Family Issues, and of course Sen. John Whitmire still chairs the Senate Criminal Justice Committee, which is the upper-chamber counterpart through which most House bills in these committees must eventually pass.

The field is set. Time for everybody to get to work.

Wednesday, February 08, 2017

A tale of three reform approaches on asset forfeiture

The media's typical response to President Trump in these early days of his presidency has been to react to his outlandish statements while giving short shrift to related policy analysis. Let's not repeat that mistake here.

With the president weighing in on Texas asset forfeiture legislation, threatening to ruin the career of some unnamed state senator who supports it, it's worth taking a quick look at the three main, alternative approaches on forfeiture reform being suggested by Republican senators in Texas this session.

The bill implementing the idea that the Rockwall Sheriff decried to President Trump is SB 380 by Konni Burton, supported primarily by the grassroots conservative faction at the Lege and an array of conservative organizations. That bill would require a criminal conviction to forfeit assets. Most people assume the government can't take your money or your car in a forfeiture unless you have been convicted of a crime, so this bill represents the primary small-government reform on forfeiture and the starting point for any dialogue among conservatives. 

Sen. Don Huffines has legislation to increase transparency surrounding forfeitures (SB 662) and another (SB 663) which would have forfeiture proceeds go to the crime victim compensation fund instead of being kicked back to the arresting and prosecuting agencies. That's a great suggestion. If we're going to do forfeiture, at least take the profit motive out of it. That would remove financial incentives to file forfeiture claims and, odds are, as a result prosecutors would file fewer of them. In particular, you'd probably see less of the small-time workaday cases that fill most forfeiture dockets. (Typical state forfeiture cases are for just a few thousand dollars - often just a vehicle.)

Right now, forfeiture funds are treated as barely accountable slush funds for police and prosecutors which may be spent for any "law enforcement purpose." (Could that phrase be any more broad?) Separating seizure of assets from the spending of them would eliminate persistent perceptions of self dealing that shroud current seizure policies.

Finally, SB 401 by Joan Huffman would not require a criminal conviction for forfeiture, but would raise the burden of proof for seizing property from a "preponderance of the evidence" to "clear and convincing." Moreover, she would allow courts to reimburse attorney fees and related costs when they later rule that property was not forfeitable. And the bill creates procedures for when officers seize assets without a warrant, requiring them to get one post hoc within 48 hours or the property must be returned.

Huffman's bill has been referred to the State Affairs Committee, which she chairs, and one should never bet against a committee chair passing legislation out of her own committee.

Prosecutors view Sen. Huffman as their main ally and principle voice in the Texas Senate. In the past, she's been skeptical of asset forfeiture reform and was a key reason it did not pass in 2015. So for her to file a bill with even a few of the reform measures being pushed by the Texas Public Policy Foundation, the Institute for Justice, the Koch Institute, Heritage Foundation, etc., makes a significant statement. 

President Trump's off-the-cuff threats aside, with so many conservative senators seeking changes, odds are pretty good something will happen. Huffman's bill represents a floor for what can be achieved in the senate this year on asset forfeiture, Burton's bill the ceiling.

MORE: From the Marshall Project.

CORRECTION: This item originally said SB 380 required a conviction to "seize" assets; under the bill, a conviction would only be required to forfeit them. H/T: Michael Haugen.