Sunday, January 14, 2018

Texas should replicate OK approach on drug felonies

Your correspondent has maintained for years that, after Jim Thorpe left, the best thing ever to come out of Oklahoma was I-35. Grits has long been a staunch advocate for a border wall, but would prefer it built along the Red River instead of the Rio Grande. However, after Okie voters approved adjustments to the criminal code to reduce sentences for user-level drug possession to a misdemeanor, perhaps it's time to cast off such dated views.

Prosecutors in Oklahoma County, reported The Oklahoman, filed 24% fewer felony filings in 2017 compared to 2016, declining from 10,043 felony cases filed in 2016 to 7,628 in 2017, or a 24% drop. The increase would be even bigger but the new drug laws didn't take effect until July. Estimated the local public defender, "Probably at least two-thirds of the decrease was the decision of the voters to pass the criminal justice reform measure on lowering felonies to misdemeanors for low-level theft crimes and for drug possession charges." Which means that not only did the new law successfully reduce prison admissions by diverting low-level drug cases, other felony crimes appear to have declined at the same time. (N.b.: Drug manufacturing and distribution remain felonies.)

Texas has passed numerous justice reform measures in recent years, but our Legislature has balked at the drug policy change Okie voters made. Now that the approach has been proven to work, Texas should follow their lead.

Saturday, January 13, 2018

'Agree with me or I will kill you': On plea bargaining, the death penalty, and life without parole

Me, Harris County DA Kim Ogg, and Shannon Edmonds from the Texas District and County Attorneys Association commented in a Houston Chronicle story this week on the role of life-without-parole sentences in plea bargaining in capital cases. I'd suggested:
"There has always been speculation about whether that has encouraged prosecutors to file capital cases more than they otherwise would because what better leverage do you have in a plea bargaining situation than, 'Agree with me or I will kill you,'" said Scott Henson policy director with the non-profit Just Liberty, which advocates for reducing incarceration. "The government will literally kill you if you don't go for life without parole and there is no stronger bargaining chip than that."
District Attorney Kim Ogg, whose office has overseen less than 25 life without parole sentences since she took the reins last year, pushed back against that suggestion. 
"We don't use the death penalty as a plea bargaining tool," she said.
Hmmmm ... What is plea bargaining, Grits wonders, if not a negotiation over sentences? More lenient sentences are offered as an incentive for the defendant to admit guilt and avoid a trial. Since the only two sentences available for capital crimes in Texas are death and LWOP, one wonders what else there is to bargain over if the death penalty isn't used "as a plea bargaining tool"?

Taking the claim on its face, perhaps this might explain the large number of cases charged as capital which don't result in capital sentences: when prosecutors take death off the table in a capital case, LWOP becomes the top sentence in a plea negotiation. So offering non-capital murder or some other charge with the possibility of parole would become the only negotiating chip to incentivize plea deals. Sufficient, county-level charging data doesn't exist, to my knowledge, to confirm that hypothesis, but I'm not sure why anyone would plea bargain to LWOP if the death penalty weren't being threatened.

If the Harris DA under Kim Ogg doesn't use the death penalty to get LWOP plea bargains, I'm glad to hear it. Shannon Edmonds from TDCAA, however, considered it par for the course "that prosecutors used the death penalty to get a guilty plea."
Shannon Edmonds, staff attorney and director of governmental relations for the Texas District and County Attorneys Association, said his group doesn't have an official position on the matter. 
"It kind of tickles me that defense lawyers are upset that prosecutors aren't trying to kill their clients," he said. "Even if the punishment was a minimum of 40 years on a capital life sentence, they still complained that prosecutors used the death penalty to get a guilty plea. That's not anything unique to life without parole."
So, there's that.

Finally, Houston attorney Pat McCann raised an issue that's been discussed recently on this blog and on the podcast - non-capital cases don't receive legal representation at the habeas-corpus stage, nor automatic review by the Texas Court of Criminal Appeals or the federal courts:
Unlike with death-sentenced cases, there's no automatic appointment of post-conviction appellate counsel and no punishment phase of the trial, which makes the whole process quicker and cheaper. 
"Life without parole was an unintentional gift to major urban prosecutors' offices," McCann said. "It makes it very easy to dispose of a large number of violent and often youthful offenders without any more thought than one would need to toss away a piece garbage."
Much has been written about the financial costs of the death penalty, but McCann's observation raises another important and less-often-discussed point: The reason the death penalty tends to drive criminal-justice debates isn't just the symbolic importance of imposing the maximum punishment. It's that defendants sentenced to the death penalty have attorneys representing them throughout the process, and so weak or unconstitutional prosecutions are more likely to be exposed.

Flawed forensics, for example, may be challenged at the habeas stage under Texas' junk science writ. But only capital defendants are guaranteed an attorney at that stage. Same goes for ineffective assistance, prosecutor misconduct, and other common habeas claims.

Death cases these days are more thoroughly vetted by appellate courts, at least at the federal level. (State-level representation in Texas capital cases too often remains shoddy.) But for the LWOP prisoners, McCann's "piece of garbage" comment isn't far off. Court of Criminal Appeals Judge Elsa Alcala has suggested extending the right to counsel in habeas proceedings to non-capital cases in order to pursue ineffective assistance claims. There's a strong argument to be made that LWOP sentences deserve the same level of automatic, post-conviction vetting.

Thursday, January 11, 2018

More than 1% of all Texas men in prison

How does Texas' incarceration rate stack up to other states? Still on the high side, according to the new Bureau of Justice Statistics report, "Prisoners in 2016."
At year-end 2016, 12 states had imprisonment rates that were greater than the national rate of 450 per 100,000 U.S. residents of all ages: Louisiana (760 per 100,000 state residents), Oklahoma (673 per 100,000), Mississippi (624 per 100,000), Arizona (585 per 100,000), Arkansas (583 per 100,000), Alabama (571 per 100,000), Texas (563 per 100,000), Missouri (532 per 100,000), Kentucky (518 per 100,000), Georgia (512 per 100,000), Florida (481 per 100,000), and Nevada (460 per 100,000) (table 7). ...
More than 1% of all males in seven states were in prison on December 31, 2016: Louisiana (1,469 per 100,000 male state residents), Oklahoma (1,207 per 100,000), Mississippi (1,200 per 100,000), Arkansas (1,095 per 100,000), Alabama (1,085 per 100,000), Arizona (1,071 per 100,000), and Texas (1,040 per 100,000).
So Texas is one of only seven states that incarcerates more than one percent of men. That's an unfortunate club in which to claim membership.

The report also noted a red flag for Texas: Admissions in Texas rose by 2,500 from 2015 to 2016 - one of only three states to see such an increase.

These sorts of data are why Grits sometimes tires of crowing about Texas' 2007 community corrections reforms credited with leveling off prison population growth, which had seen a steep upward trend before then. Even so, Texas remains vastly over-incarcerated. And 2007 was now more than a decade ago. It's nigh past time in 2019 for the Lege to take additional steps.

RELATED: From the Houston Chronicle, "Texas female prison population rises as male population decreases."

Wednesday, January 10, 2018

Twin Peaks defendants offered misdemeanor probation, negligent murder, and other stories

Let's clear some browser tabs with a roundup post. Here are several items of which Grits readers should be aware, even if I haven't had time to write about them:

Twin Peaks defendants headed to trial
The McLennan DA offered one of the 150+ defendants in the Twin Peaks biker massacre a plea deal of a deferred misdemeanor probation instead of the first-degree felony he was charged with, and the defendant said no, we're going to trial. Grits had earlier placed the over-under regarding how many of the original 177 people arrested would be convicted of anything at 1.5. That still sounds about right, though at the moment, if Grits were a betting man, I'd place my wager on "under." I couldn't begin to estimate the over-under regarding how much this fiasco may eventually cost McLennan County in civil suits for constitutional rights violations, but it'd be a good bet it'll be a non-trivial number.

Firing director not a cure-all for Dallas juvie detention woes
In Dallas, the juvenile probation director may or may not have been run out of her job but is definitely on the hot seat for allegations that youth under her care at a treatment center weren't allowed time for outdoor exercise. The same facility last year witnessed allegations  that five boys aged 13 to 17 engaged in sex acts with one another while sleeping on the floor of the cafeteria due to understaffing. I don't dispute that the chief needs to go, but this is not an NFL team. Firing the coach doesn't change much about a government bureaucracy, which is more effectively influenced through the passage of laws, policies, and budgets. At the end of the day, real solutions will likely involve ponying up more money for staff and services to solve the problem, not just firing the bureaucrat in charge.

All about the money
It took a guest columnist instead of working reporters to get to the heart of the debate over Austin's newly rejected police contract. Read Lauren Ross' article, it's the first time in the local press that the economic critiques of contract critics have been presented to MSM consumers in full form.

Six year old died in awful shooting by Bexar deputies
A six year old was killed by a stray bullet last month after four Bexar County Sheriff's deputies, including one with a rifle, opened fire at an unarmed suspect, who also died (law enforcement insists she earlier had a gun but now cannot find it). As a result, the Sheriff is reviewing use of force policies. This one is a mess. The officers appear to have fired based on assumptions they brought with them to the scene, not what they saw in front of them. And clearly they didn't take into account that she was standing in front of an occupied mobile home when they opened fire. Bodycam footage would help here. A GoFundMe page was created on behalf of the family to cover funeral expenses.

Some TDCJ units ill-equipped for cold weather
The Texas Department of Criminal Justice faces allegations that inmates at up to 30 units slept in un- or under-heated cells during the recent cold snap. TDCJ denies the problem, but the Texas Inmate Family Association identified a couple of dozen underheated units, notably including the Allred Unit near Wichita Falls. Editorialized the Fort Worth Star-Telegram, "An ongoing lawsuit is demanding the state improve summer conditions. While they’re at it they should fix the heating for winter."

Negligent murder?
In Waco, a murder conviction was overturned because the jury was instructed to convict a defendant of murder based on "reckless" and "negligent" rather than "intentional" behavior. (A day care owner had given children in her care Benadryl and one of them died.) Prosecutors have appealed the case to the Texas Court of Criminal Appeals, where three votes to uphold the conviction are virtually guaranteed.

Clemency beneficiary reoffends
When Barack Obama issued sentence commutations to hundreds of drug offenders, it was inevitable that some of them would eventually reoffend. That has finally happened in San Antonio. The Express-News had the coverage. While some may use this to criticize the commutations, to me it's remarkable it's taken so long for somebody to screw up, and more remarkable still that the overwhelming majority of those with commuted sentences have not gotten into trouble again.

3 policies that punish the poor
Rudy Apodaca, the former chief judge of the New Mexico Court of Appeals, now living in Austin, had a column in the Express News linking three punishing policies for the poor: Overreliance on property taxes, money bail for criminal defendants, and the Driver Responsibility surcharge. He concluded, "Without change, the rich will continue to get richer and the poor poorer, the gap between them growing further apart. And caught in between, the middle class will keep struggling."

(Literally) sick of prison food
The Atlantic has the story of prison food literally making inmates sick. Prison inmates are six times as likely to contract a food-borne illness compared to the rest of the population, a recent study found.

With less crime, do we need fewer cops?
The Washington Post pointed out that, despite crime plummeting in the last three decades, the number of police has not declined. "In 2016, there were slightly more officers per capita than in 1991, when violent crime peaked, according to data collected by the F.B.I. Now, officers deal with half the crimes per capita that they did then." Grits could make an even stronger case that we have too many prosecutors.

Friday, January 05, 2018

Austin press coverage of police contract still sucks, and other stories

Here are a few odds and ends that deserve readers' attention even if I haven't had time to turn them into full, independent blog posts:

Austin press coverage of police contract still sucks
The Austin press continues its one-sided coverage of the City Council's rejection of the police-union contract, larding their articles with quotes from contract supporters and minimizing the views of critics without fully explaining them. In an Austin Chronicle story published yesterday, for example, contract supporters were given a platform for predicting doom while contract critics were dismissed as know-nothings (e.g., my wife was dubbed a "gadfly"). According to reporter Nina Hernandez, council members who voted against the contract (all of them) "hadn't exactly considered the consequences of their decision," though there's no sourcing, much less factual basis offered for that opinion. Later, appearing to contradict herself, she complained that the council was "suffering information overload," which hardly jibes with her earlier calumny that they hadn't sufficiently studied the topic.

The truth is, MSM reporters in Austin appear as a class to have misunderstood and misreported this entire debate from the get go. Ms. Hernandez now says she recognizes that, as one council member instructed her, "the Council's vote was more about the money" than the oversight piece (which means the press were the only ones in the room that night who didn't understand what they were watching). But no one in the local media is yet reporting on the most important implications of the scuttled contract: Freeing up around $10 million that the city council can spend in the current fiscal year over and above their current budget. How and when to spend that money is where the actual debate has moved at city hall, as well as among the activist players involved. But the press continues to flail, having missed the story and spun false narratives for so long that they don't now know how to begin to catch up. It's as though there's an almost willful decision by the local Austin press corps not to publicly report on what these debates are actually about.

Texas law mandates bad bodycam policies
Note to reporters who want to localize a story about police bodycams based on the Leadership Conference/Upturn recommendations, like this recent SA Express News story: Texas' law is the source of the most important bad practices, like letting officers accused of misconduct review video before they're questioned, or erecting barriers to accessing video under open records. Increasingly more departments, most recently Arlington and Plano, are purchasing body cameras for their officers. MORE: Here's a new academic piece on body cameras from Seth Stoughton for the to-read pile.

Private prison company gets rep on Windham task force
One of the governor's new appointees to Texas' task force on "Academic Credit and Industry Recognition" at the Windham School District (which operates educational programming at the Texas Department of Criminal Justice) works for a private prison company, reported the Longview News Journal.

Maybe time to tone down the 'war on cops' meme
The number of police officers killed in the line of duty in 2017 was the second lowest total in 50 years. While every death of an officer is a tragedy, this low total doesn't comport with the "war on cops" meme that's been prevalent for the last couple of years. Suicides and traffic deaths remain the more significant killers of sworn police officers.

Analyzing 2017 shootings by police
The new report from Mapping Police Violence is a must-read. By their count, 1,129 people were killed by police in America in 2017. MPV researchers "were able to identify officers in 534 cases. At least 43 had shot or killed someone before. 12 had multiple prior shootings." Also, "Most killings began with police responding to suspected non-violent offenses or cases where no crime was reported. 87 people were killed after police stopped them for a traffic violation." The number of those killed who were unarmed was 147. Notably, "Police recruits spend 7x as many hours training to shoot than they do training to de-escalate situations." FWIW, the Washington Post came up with a slightly lower number for Americans killed by police; Grits doesn't yet understand why the difference. It's remarkable that the number of people shot and killed by the government isn't tracked more closely than this in an official capacity. This should be a number we know.

Why long sentences matter
Too much of 2016 and 2017 was spent debating Prof. John Pfaff's position that long sentences weren't a significant driver of mass incarceration. He was wrong. This 17-minute podcast from the Urban Institute lays out the problem of too-long sentences and shows why reducing them is key to ending mass incarceration.

Healthcare spending reduces crime, violence
In the big picture, the observation from the Brookings Institute that health care spending prevents crime makes loads of sense. That's particularly true where health and crime specifically intersect - like drug abuse and mental illness, where treatment and related social-service supports can prevent crime both directly and indirectly. One study they cited "found that an increase in the number of treatment facilities causes a reduction in both violent and financially-motivated crime. This is likely due to a combination of forces: reducing drug abuse can reduce violent behavior that is caused by particular drugs, as well as property crimes like theft committed to fund an addiction. Reducing demand for illegal drugs might also reduce violence associated with the illegal drug trade."

Trump DOJ rescinds anti-debtors prison guidelines
The decision by the Trump DOJ to rescind guidance on minimizing debtors-prison practices was ill-conceived and a disappointment. But it was only ever guidance, and rescinding it in and of itself changes nothing. What has always mattered more is what state and particularly local actors choose to do on the ground, and that remains an open question. Texas legislators in 2017 took long-awaited first steps toward confronting the problem of arresting poor people over fines, but there's much more to be done. It remains to be seen whether - much like the push to reform asset forfeiture laws - movement conservatives continue to push for reform in spite of the Trump Administration staking out a more regressive agenda.

Monday, January 01, 2018

Texas getting better at identifying problems at juvie facilities, but not fixing them

In reaction to revelations of dysfunctional youth prisons, advocates including your correspondent have been calling to dismantle them and shift to smaller facilities located closer to the urban areas from which most of the youth first came. (Check out Grits' interview with former Dallas News reporter Brandi Grissom on the topic.) I still think that's a good idea.

But we must then pay closer attention to how locals are treating juvenile offenders under their care. For example, inmates at one secure youth-treatment center in Dallas may go months without being allowed to exercise outside. Here's the lede to the Dallas News article breaking the story:

Unused basketball courts at the Lyle B. Medlock
Youth Treatment Center in South Dallas
Death row inmates in Texas are given at least an hour a week outdoors. Hardened criminals inside California's famous San Quentin prison get 10 hours.

Yet kids at a Dallas County correctional center for boys went months, sometimes more than a year, without going outdoors more than a few times.

For years, the boys at the Lyle B. Medlock Youth Treatment Center in southern Dallas County were rarely allowed outdoors, according to former guards, probation officers and families of incarcerated teens.

One boy said he was locked up for nearly 10 months and wasn't let outside for exercise once.
That we even know about this is a testament to the creation of the Independent Ombudsman at TJJD as part of the 2007 reforms, and the expansion of their authority to include local facilities. They began inspecting local juvenile detention facilities in 2015 and immediately identified the issue, reported the DMN. By May 2016, "During a third ombudsman visit, in May 2016, the inspector again noted the lack of outdoor time and submitted a 'Request for Plan of Action' to Dallas County juvenile officials: 'What plan can be developed and implemented at Medlock that would ensure youth have access to outdoor recreational areas?'"

So the mechanism to identify the problem worked, but the Ombudsman was not empowered to enforce her request to create an action plan for changing a bad policy. That didn't happen until the County Judge saw the Morning News article and sent the juvenile probation director a Nastygram, after which the policy was immediately changed.

Ideally, you want government structures that identify problems in order to fix them, not to allow them to linger until some reporter catches on and embarrasses the government into changing bad policies. This reminds me of Austin's police monitor, which at its best made important recommendations for reform but had no authority to fix the problems they'd identified.

At a minimum, when the Independent Ombudsman recommends this sort of policy change, local officials should be required to either implement the recommendation or formally reply to explain why they won't.

The TJJD Ombudsman had similarly identified most of the problems the Dallas Morning News reported on as Brandi Grissom was on her way out the door (check out Grits' interview with her; this was Brandi's final story as Austin bureau chief). So they're giving government officials an opportunity to rectify problems long before they become front-page news, but it's just not happening.

Which leads Grits to this conclusion: Legislators were successful in 2007 at creating a mechanism to identify problems at state and local facilities. But waiting until already-identified problems mushroom into front-page scandals and crises makes little sense. Someone must be empowered to fix identified problems, and to force local actors to adjust bad practices when they persist in the face of Ombudsman recommendations.

Friday, December 29, 2017

Murder down in big Texas cities in 2017, violent crime up in some

As the year closes out, the Brennan Center projected murder and violent crime rates for 2017 based on reporting from the nation's 30 largest cities, including six in Texas. They found that, in aggregate, both had declined from 2016 levels. Looking closer at Texas' data, complicated the story. Here are the changes in murder rates for the Texas cities in the survey:
Houston: -20.5%
San Antonio: -13.5%
Dallas: -1.7%
Austin: -27%
Fort Worth: +0.1%
El Paso: +29.4%
The increase in El Paso's murder rate was from 2.9 to 3.8 per 100,000 residents and represented an increase of 6 murders over the 2016 total.

Murders, though, are rare events occurring in relatively small numbers, which is why it's never ideal to look at one or two years in isolation. Overall, murder rates peaked in 1991 and have declined steadily ever since, with a couple of one or two year upward hiccups, as occurred in 2015 and 2016. But 2017 renewed that downward trend with what Brennan projects will be the second lowest rate for murders overall since the 1990s.

Other violent crime rates, however, rose slightly in Texas' largest cities, despite a slight overall national decline. For the same cities, here are Brennan's projections for year-over-year changes in violent-crime rates from 2016 to 2017:
Houston: +8.8%
San Antonio: +4%
Dallas: +4/8%
Austin: -7.5%
Fort Worth: +5%
El Paso: -7.8%
Now, these are single-digit increases in four of six cities following two decades of decline, so take them with a grain of salt, but it does buck the national trend, which saw violent crime decline 0.6% overall.

When you look at the data city-by-city, however, that average masks wide variation. For example, though declines in Austin and El Paso look quite good, some large cities posted even larger reductions, including: Columbus, Ohio (-12.4%), Indianapolis (-17.9%) and Washington, D.C. (-27.5%). And some quite large cities like New York (-7.4%), Detroit (-9.6%), and Boston (-9.7%) witnessed crime declines equal to or greater than any Texas jurisdiction.

What to make of this jumble? Grits honestly can't say. In most cases, imputing causation to the yearly vicissitudes of crime data (much less any partisan implications), IMO amounts to a fool's errand. I don't believe the new Houston Police Chief, Art Acevedo, can take credit for the decline in murders in his town, for example, nor do I believe he is responsible for the increase in violent crime on his watch. Crime rates measure societal trends which are bigger than the interests or actions of the government, including the police.

In fact, about the only thing you can tell from anyone's interpretation of short-term crime data at this historical moment are the hopes, aspirations, and interests of the interpreter. Crime rates have been dropping for a long time, but nobody knows whether or not we've hit the bottom. Are increases in violent crime rates in those four cities a blip, or the beginning of a longer-term bounce that will sustain over multiple years? No one but a demagogue can do aught but guess, and anybody who does so without offering lots of caveats is most certainly promoting an agenda.

More one-sided MSM reporting on Austin PD retirements

Grits had earlier cited reporting by local journalists over projected retirements by Austin police officers in the wake of the city council rejecting their police-union contract as an example of the local press acting as a mouthpiece for proponents of the contract. The spin before the contract vote was that up to 300 officers could retire if the council didn't approve it, a number Chief Brian Manley amended to up-to-160 on the night of the city-council vote, after touting the higher number for weeks. 

Now, the real numbers are out and KXAN-TV has published the most misleading report yet, again without letting contract critics correct the spin. It turns out, only 33 officers are retiring this month before the new contract terms take effect, or about 5% of the highest, earlier estimates being touted in headlines and TV news stories. Reported KXAN in their lede:
The number of Austin police officers leaving the department spiked this month, nearly doubling the year’s total up to this point. 
At least 33 city police lieutenants, sergeants, detectives, corporals and officers have left the Austin Police Department this month in the wake of City Council’s decision to reject a new union contract two weeks ago. In the first 11 months of the year combined, 43 officers left the department.
So 76 officers will  retire this year, including perhaps a couple of dozen extra retiring at the end of the year because of the rejected contract. How should we judge whether this is significant? From Grits' earlier post on the topic:
So, since we can't expect local reporters to do it, let's go ahead and answer the question, "Is 25-50 retirements significant?" It turns out, according to the annual report from the Austin police officer retirement system (p. 133), 56 officers retired in 2016, and 71 retired in 2015. So even minimalist reporting, checking the most basic facts about the topic in easily accessible public sources, would show that these numbers of retirements aren't really a big deal at all.
From a statistical perspective, this is entirely within normal range, with just five more retirements than in 2015. Yawn!!

Yet at KXAN, this merits the headline, "APD sees big spike in retirements after council rejects new contract"! This, to me, seems almost like intentional bias, promoting sky-is-falling arguments from one side of a public debate while ignoring both data from public sources and credible alternative voices. Could they really be this bad accidentally? I guess it's possible, but ...

Wednesday, December 27, 2017

Interview: Peter Neufeld, co-founder of the national Innocence Project, on prospects for state and national forensic-science reform

In the December episode of the Reasonably Suspicious podcast, we published an excerpt from an interview Grits conducted with national Innocence Project co-founder Peter Neufeld. We mainly discussed forensic-science topics including the abolition of the national forensic science commission, of which he was a member, and DNA mixture controversies. You can listen to the full interview here.

Find a transcript of our conversation below the jump.

In defense of using risk assessments at bail hearings

Echoing sentiments your correspondent expressed in a segment our November Reasonably Suspicious podcast and amplifying them with additional research, three statisticians recently made the case in the New York Times that, despite allegations that some algorithms promote racially discriminatory outcomes, they remain "powerful tools for combating the capricious and biased nature of human decisions." Here's a notable excerpt:
Bail decisions have traditionally been made by judges relying on intuition and personal preference, in a hasty process that often lasts just a few minutes. In New York City, the strictest judges are more than twice as likely to demand bail as the most lenient ones. 
To combat such arbitrariness, judges in some cities now receive algorithmically generated scores that rate a defendant’s risk of skipping trial or committing a violent crime if released. Judges are free to exercise discretion, but algorithms bring a measure of consistency and evenhandedness to the process. 
The use of these algorithms often yields immediate and tangible benefits: Jail populations, for example, can decline without adversely affecting public safety. 
In one recent experiment, agencies in Virginia were randomly selected to use an algorithm that rated both defendants’ likelihood of skipping trial and their likelihood of being arrested if released. Nearly twice as many defendants were released, and there was no increase in pretrial crime. 
New Jersey similarly reformed its bail system this year, adopting algorithmic tools that contributed to a 16 percent drop in its pretrial jail population, again with no increase in crime.
Reacting to a risk-assessment algorithm used by the probation department in Broward County which was criticized in a widely cited ProPublica article, the authors insist that:
It is not biased algorithms but broader societal inequalities that drive the troubling racial differences we see in Broward County and throughout the country. It is misleading and counterproductive to blame the algorithm for uncovering real statistical patterns. Ignoring these patterns would not resolve the underlying disparities.
On our podcast, Amanda Marzullo and I concluded that the addition of a right to counsel for indigent defendants at bail hearings could add an additional layer of protection and a means to make an individualized case for specific defendants whose situation may be more sympathetic then their algorithmic scores. So not just risk-assessments, but risk-assessments-plus. The authors similarly conclude algorithms are only one part of a broader puzzle: they "are not a panacea for past and present discrimination. Nor are they a substitute for sound policy, which demands inherently human, not algorithmic, choices."

Tuesday, December 26, 2017

Hypothesizing causes of Dallas County Jail population decline

The Dallas County Jail has dipped to its lowest population in recent memory and local officials can't agree why. Admittedly, it's hard to pin down a cause, though Grits could also make the case that the total should be even lower. See Dallas Morning News coverage from Naomi Martin.

The News placed some of the blame on declining numbers of arrests by officers: "Arrests by Dallas police are down. In 2017, Dallas police made roughly 4,200 arrests per month on average, city records indicate. In 2010, when staffing levels peaked, the department made 6,343 arrests per month."

However, crime is also down from 2010, so it's possible there are fewer arrests because there is less crime.

Plus, the number of cases processed didn't decline with the number of arrests, particularly felony cases which account for most pretrial incarceration. From the Office of Court Administration (whose data only goes through 2016), here are the recent total felony cases added to Dallas District Courts by fiscal year:
2012: 34,779
2013: 35,015
2014: 35,880
2015: 38,614
2016: 36,688
By contrast, there was greater fluctuation over that period in the number of indigent felony defendants appointed a lawyer in Dallas (see OCA annual statistical supplements, criminal case activity by county for district courts):
2012: 25,182
2013: 37,072
2014: 40,446
2015: 25,370
2016: 18,474
Grits doesn't completely understand what's going on there - either why caseloads aren't more related to arrests (though I have some hypotheses), or why the number of appointed counsel fluctuates so much, or for that matter why it dipped so low in 2016. And I don't know whether any of these things relate directly to recent jail population declines.

County officials took credit for the reduction, and it seems likely the programs they're touting had some effect:
Dallas County officials took a victory lap claiming credit for the reduction. Since 2012, the county has made lowering the jail population a top priority to cut costs, for both the county and for people arrested on minor charges. They say they have added diversion programs, streamlined booking and court processes, updated software and increased the use of electronic ankle monitors.
Looking at jail population reports from December 2012 and December 2017, a few things stand out. Overall, the inmate population at the Dallas County Jail was 17 percent lower in 2017 than in 2012.

The category of jail inmate with the biggest numerical reduction - felony defendants detained pretrial - represented a modest statistical decline of just 17%. Much less numerous state-jail-felony inmates being held pretrial declined by 44%. And also less-numerous parole violators being held prior to a hearing declined by 57% over this period.

So if felony court caseloads stayed about the same but felony pretrial defendants are the biggest source of reduction, that may speak to Dallas judges letting more people have personal bonds or low bails rather than fewer arrests being the cause, or to the streamlining efforts touted by the county. Indeed, since the last couple of  years coincided with a reduction in defendants receiving appointed counsel in Dallas, that implies the judges have played an even more important role, because the defendants are less likely to be represented.

So for Grits' money, this probably represents a technocratic success - intentionally streamlining systems and doing more with less - than it does some macro-level change. The biggest part of the reductions in the police force in Dallas took place before 2017, so any resulting arrest decline would have shown up gradually over time in reduced felony caseloads, not all at once as is being suggested.

Monday, December 25, 2017

Brandi Grissom Interview: TJJD/Gainesville sex abuse scandal

In the December episode of the Reasonably Suspicious podcast, we included an excerpt from an interview by Grits with Brandi Grissom-Swicegood, who just left her post as Dallas Morning News Austin bureau chief to pursue a second career as a professional triathlete. Brandi's final story for the News focused on the emerging sex-assault scandal at the Texas Juvenile Justice Department's Gainesville State School (see prior Grits coverage).

Find a transcript of our full conversation after the jump.

Sunday, December 24, 2017

'A Very Carpenter Christmas'

From the intro to the latest Reasonably Suspicious podcast, apropos of Christmas Eve, please enjoy 'A Very Carpenter Christmas,' a bit of seasonal verse in honor of US v. Carpenter - the case pending before the US Supreme Court which will decide whether the government must secure a search warrant under the Fourth Amendment in order to access personal location tracking data on individuals from their cell-phone service providers:

'Twas the night before Christmas and all through the home, 
The smartphones pinged cell towers, ne'er did they roam. 
Their location was fixed there all through the night, 
Could be proven in court with no warrant in sight. 
Then what to my wondering eyes did appear, 
But Chief Justice Roberts like a red-nosed reindeer,
Leading the way for SCOTUS to hone 
A warrant requirement for tracking your phone. 
On Roberts, on Gorsuch, on Sotomayor. 
Tracking us isn't what phones are for. 
On Thomas, on Ginsburg, on Breyer, on Kagan. 
Please give Fourth Amendment fans something to cheer again. 
And clearly explain, before it goes out of sight, 
Why not being tracked by our phones is a right.

Or, here's an audio excerpt from the podcast with your correspondent reading this sure-to-be-a-classic selection:

Merry Christmas, y'all.

Wednesday, December 20, 2017

Christmas and the Surveillance State: December Reasonably Suspicious podcast

Check out the December edition of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice policy and politics. Two great interviews this month - one with reporter Brandi Grissom Swicegood about the alleged abuse and turmoil at the Gainesville State School, and another with Peter Neufeld, co-founder of the national Innocence Project, regarding forensic-science reform. You can listen to the latest episode here, or subscribe on iTunes, Google Play, YouTube, or SoundCloud.

If you haven't subscribed yet, take a moment to do so now to make sure you won't miss an episode. Topics this month include:

Top Stories
US v. Carpenter: SCOTUS appears likely to require a warrant for cell-phone location data.

Brandi Grissom, discussing the staff-on-youth sex scandal at the Gainesville State School.

Home Court Advantage
Evaluating a sharply split decision from the Texas Court of Criminal Appeals upholding a first-degree felony drug conviction in which a police officer stole the product and laced sheetrock with less than a gram of cocaine to frame the defendant. (See prior Grits coverage.)

Peter Neufeld of the national Innocence Project, discussing forensic science reform.

Errors and Updates
The Last Hurrah
  • TDCJ prison understaffing and staff safety
  • Death penalty use declining: A first for Harris County in 40 years
  • Dallas pilot program de-escalates mental-health calls by sending medical staff instead of cops
Find a full transcript of the podcast below the jump.

Sunday, December 17, 2017

Executing non-killers, imagining life without plea bargaining, no oversight for forensic hypnosis, and other stories

Here's a brief, browser-tab clearing roundup of items about which I haven't had time to blog, but of which Grits readers should be aware:

Forensic commission can't address 'forensic hypnosis'
First, updating an earlier Grits report, I communicated with Lynn Garcia, General Counsel for the Texas Forensic Science Commission, who informs me that forensic hypnosis does not fall under their jurisdiction, even as a general area they're authorized to study, because it does not involve "physical evidence," which is defined in the statute as something tangible. She said they've received complaints about the practice in the past, including one recently, and agrees it's problematic, but doesn't believe it falls within their jurisdiction. While I understand her legal interpretation, that leads to an unfortunate situation where government-sanctioned junk science (the Texas Commission on Law Enforcement gives out certifications in forensic hypnosis) cannot be evaluated by the state Forensic Science Commission. That should change in 2019.

Maybe they'll listen if they Rangers tell 'em
Governor Abbott has asked the Texas Rangers to investigate sexual abuse at the Gainesville State School. But we've had an Ombudsman complaining about these problems and recommending solutions for years, and for the most part those recommendations have been ignored. Most of the details in the disturbing press reports out of Gainesville came from Debbie Unruh, the TJJD independent ombudsman, and had been included in her prior reports. Why would we imagine state leaders will listen to the Texas Rangers when they haven't implemented the recommendations from Unruh who's been sounding the alarm all this time? The state already knows the solutions here, they just haven't heretofore been willing to pay for them.

Did TDCJ understaffing allow rape of prison teacher?
A teacher at a TDCJ prison blames chronic understaffing for the circumstances that led to her rape. Grits readers know this is a longstanding problem. The solution here is to reduce incarceration levels and close understaffed units. There just aren't enough people in some of these rural areas to consistently staff the prison units there. And the problem will be much-exacerbated at certain South and West Texas units if and when oil prices go back up.

Coverup at TDCJ?
The Texas Department of Criminal Justice allegedly shredded documents they were obligated to turn over as discovery in a federal lawsuit alleging the summer heat in un-air conditioned prisons constitutes cruel and unusual punishment. The warden who approved the shredding allegedly already knew about the litigation. Hard to interpret it otherwise: This smacks of a coverup.

Executing non-killers
Something about executing a person for a murder they didn't themselves commit feels inherently unjust. Even the prosecutor from Jeff Wood's capital conviction, who had 13 months experience as an attorney at the time she was designated shot-caller in the case, has asked the Governor to commute his sentence. Wood's example reinforces Grits' belief that the law-of-parties doctrine is ripe for revision: the concept stems from British common law, but Parliament abolished it in 1957, followed soon thereafter by all of Europe, India, and in 1990, Canada. This is a holdover from a less evolved time.

Paying for public defenders would reduce incarceration costs
Long-time Grits readers are aware that defendants represented by public defenders have better outcomes than those with appointed attorneys. We've seen this both in national data and Texas examples. But a new national analysis suggests that public defenders do such a better job that using them reduces incarceration costs: Using "public defenders reduce[s] the probability of any prison sentence by 22%, as well as the length of prison by 10%."

When your 'tiny house' means a tiny privacy footprint
Here's an unintended consequence to the "tiny house" movement: If your tiny house is on a trailer, your Fourth Amendment rights are likely diminished and the automobile exception will apply to searches of your residence, according to academic from Texas State.

Life without plea bargaining?
For the reading pile: India's court system doesn't do plea bargains. They've tried to implement them in the last decade and it's been a flop. I want to read this new academic article to learn more about the situation.

Saturday, December 16, 2017

Journalists failing to call out official lies in Austin police contract debate

Local, mainstream media coverage of the Austin police union contract - which was rejected Wednesday night after a dramatic, 8-hour special-called city-council meeting - has been disturbingly bad. People whom I've considered good reporters on other topics have written pablum-filled junk on this one. For the most part, journalists appeared to go out of their way to avoid reporting factual information when it was provided by advocates or movement leaders, and instead chose to report spin and outright falsehoods from the police union and (to a slightly lesser extent) police department management.

With the exception of Michael Barajas at the Texas Observer, most reporters leading up to the council vote portrayed opposition to the contract as coming from only a handful of critics, often suggesting Austin Justice Coalition's Chas Moore was the sole, vocal opponent.

The Austin Statesman at one point estimated that "several" activists opposed the contract, and after the council vote, a local TV station said "dozens of community members" opposed it. In reality 20 different organizations signed on against it - including Travis County Democratic Party precinct chairs voting unanimously to recommend rejecting it - and more than 220 people signed up to speak against the contract Wednesday night, with 54 police officers and their family members signed up for it, the Mayor announced at end of the meeting. (The total actually speaking was lower on both sides in the end because many people donated their time to others or had to leave before their name was called.)

Beyond simply downplaying the size of the movement, a lot of false information has been  propagated because reporters simply accept official sources uncritically and do not seek out alternative sources or views. Sometimes these official sources lie, but the reporters aren't performing even the most basic legwork to fact check those falsehoods.

To take the most immediate example, Chief Brian Manley and the police union have been saying - and the Statesman repeated the line as the top news about the contract - that up to 300 veteran officers could retire if the contract was rejected. These were official falsehoods being promoted as a scare tactic.

And now that the contract has been rejected? Reported KXAN-TV, police union president Ken Casaday said, “We’re expecting somewhere between 25 and 50 to leave.” So between 1/12 and 1/6 of the number he was estimating a week before. While KXAN reported the new, much smaller estimate, the headline did not not say, "Far fewer officers will retire than expected." Instead, they doubled down on the original falsehood with the scary headline, "Some APD officers already putting in for retirement after contract was stalled." Not one media outlet has called out police management or union officials on their earlier misrepresentations. Instead, they're collaborating in a spin campaign.

So, since we can't expect local reporters to do it, let's go ahead and answer the question, "Is 25-50 retirements significant?" It turns out, according to the annual report from the Austin police officer retirement system (p. 133), 56 officers retired in 2016, and 71 retired in 2015. So even minimalist reporting, checking the most basic facts about the topic in easily accessible public sources, would show that these numbers of retirements aren't really a big deal at all. Austin cops with enough years in to make them eligible for retirement make upwards of $120K per year, including overtime - among the highest paid in the nation. There aren't other jobs, anywhere, where they can make that much, so most will stay put.

Reporters should aspire to be more than stenographers. These are the sorts of failures by the journalism profession which, on the macro level, brought us Donald Trump: Quoting public figures without fact checking their comments, refusing to report factual information because it doesn't come from a preferred source (usually the government), and focusing on personalities instead of issues.

Austin journalists who've covered the police contract for the most part should be embarrassed. They never provided the public with a meaningful assessment of the issues at stake, despite ample documentation, numerous community meetings, public forums and other opportunities to cover them. A massive, city-wide debate has taken place on this topic over the last six months, and it has occurred almost entirely without the MSM playing any meaningful role.

You could read everything written in the MSM about the contract before Wednesday's vote and have at most a minimalist understanding of the issues contract critics raised. Only one Statesman article, in October, even listed the eight accountability measures demanded by AJC and its allies. From that story, here's the most detailed MSM discussion Austinites ever got of the policy questions that ultimately caused the police-union contract to be shot down:
The resolution suggested, as Austin activists have for months, eight different reforms to the police contract: reforming the department’s 180-day rule, which limits the amount of time the police chief has to discipline officers; eliminating automatically downgraded suspensions; giving subpoena power to current oversight bodies; allowing misconduct to be considered equitably in promotions; allowing citizens to make complaints online or over the phone; allow the police monitor to initiate investigations even without a citizen complaint; stop permanently sealing records related to police misconduct; and releasing records without removing content.
And I should give those reporters credit: No one else except Barajas ever even listed them. However, each of these amounts to a complex debate into which the general public cannot meaningfully enter without much more detail and context than what's being provided. No media outlet ever discussed them at length, much less linked them thematically to the various cases which inspired the recommendations in the first place. Police union positions, however, were quoted over and over again.

As a result, Statesman readers, and consumers of all other local MSM, were essentially shut out of the real conversation. Instead, the most important debates took place online, in hundreds of one-on-one conversations behind the scenes, and in numerous public forums to which our journalist friends had access, but of which they chose not to avail themselves. Most reporters took the lazy way out, filling their stories with quotes from the police union and the city and using their authority to marginalize critics.

At times, it almost seemed intentional. More than a few of these reporters have shown they're better than that in other settings. In this instance, though, the local Austin press corps chose to serve as shills and propagandists for the powers-that-be, missing the story about an eruption of public discontent over a major public policy issue until after the fact. It was a sad and disappointing display.