Race and Risk II

At the beginning of the month I introduced Donald Baumann on this topic of continuing interest, and have been in contact with him since then. Here is Donn's response to my post, setting out his view of the current state of the data.

"Over-representation comes from several sources and we have evidence for some of them. According to the latest National Incidence Study (NIS 4), African American families are more likely to maltreat their children under certain conditions. However, if you look closely at the Texas CPS data on substantiated maltreatment, controlling for poverty, single parenthood, young parents, number of children and other factors, a picture of racial bias emerges.

What we find is that even at lower levels of risk of future maltreatment (which includes prior reporting), workers are more likely to substantiate African Americans than Anglos. What this means is that both bias and maltreatment may play a part in all of this but no one knows what that part is. In our view, poverty is the key because it is viewed differently for African Americans than it is for Anglos and, as a result, the threshold for substantiation is lower for African Americans than Anglos. At present, however, no one knows what features of poverty are related to substantiated maltreatment and what are related to bias.

One major source of over-representation that we know about is the higher reporting rates for African Americans, relative to Anglos. This higher rate appears to move through what we refer to as the CPS Decision-Making Continuum from intake to service provision and placement of children into care. Thus, some of the higher rates of disproportionality results from reporting and that contribution to disproportionality continues to move through the system.

So why is there so much disproportionality at reporting? Some have argued that people who are low income are often under greater scrutiny through their contacts with social service programs, increased law enforcement in low-income neighborhoods, etc., so this likely increases reporting about these families - thus, we can't say with certainty whether "repeated contacts" are truly indicative of greater rates of maltreatment among African Americans or of unidentified maltreatment among other racial groups.

Others have argued from data such as infant mortality rates that the reporting rates appear similar to the fatality rates and, because the latter is not as subject to bias as reporting rates, the reporting rates are real.

Finally, we don't know much about the potential for reporting bias. It may be that, much like the substantiation decision, the decision to report contains some disparate features that are related to actual maltreatment and some that are related to bias.

Another source of over-representation is decision-making bias that contributes to the higher rates of placements into care for African American children relative to Anglos and the lower rates of reunification for African American children relative to Anglo children. Regarding the latter two sources (flow in and out of the system) we controlled for the same factors as above for substantiation and; in the case of reunification, drug abuse and inadequate housing are additional factors that are controlled for.

Our findings are similar to those with regard to substantiation. What this means is that both underlying risk of maltreatment and racial bias play a part in how cases flow in and out of the CPS system of care and disproportionality is the result."

Collection Improvement - and Job Postings

Collection of court costs is an important reflection of respect for the rule of law, and an important revenue source for many programs, and I have written briefly on the topic previously.  We describe OCA's collection improvement program in the Texas Administrative Code (1 TAC 175.1) thus:

The OCA Collection Improvement Program applies to criminal cases in which the defendant agrees to or is required to pay all court costs, fees, and fines under a payment plan rather than when they are assessed and payment is requested. Although the program can be utilized by a judge in virtually every criminal case to effectuate the judge’s financial orders, it is not designed to influence the judicial determination of whether to order payment of costs, fees and fines, or otherwise to affect the sentencing or other disposition decision that is within the judge’s discretion. The program is simply designed to improve the collection of court costs, fees and fines that have been imposed, while helping defendants satisfy their obligations. The program is not intended to conflict with or undermine the provision to defendants of full procedural and substantive rights under the constitution and laws of this state and of the United States.

For the full text of the existing rule, and considerably more information about the program, visit the website.  With a few new counties entering the program due to the 2010 census, we want to make sure that folks are aware of the program, but also that local officials realize two things:

1. I have the authority to grant a waiver to a county for whom the program is actually not cost effective, and am willing to talk through what that computation might look like, and grant a waiver(s) if justified.


2. We have spelled out the program in great detail through the Administrative Code, and the APA says you can petition an agency for the revision of rules, but no one has requested revisions. Stay tuned for the possibility of refinements that we propose, and an opportunity to comment on those or upon the rules otherwise.

Finally, it is important to note that the Legislature has given OCA responsibility for auditing local compliance with this program (a function formerly assigned to the Comptroller).  We have an opening posted and have conducted interviews for a Managing Auditor, and will be posting additional openings for this program in the near future.

Small Claims Cases

Just about the only controversial feature of the major court reorganization bill, HB 79, 2nd Called Session (and SB 1717 during Regular Session) was the repeal of Chapter 28 Government Code, which designates justices of the peace as small claims courts, to be replaced with a single body of procedural requirements for civil cases in JP court, be they small claims or otherwise.  Article 5 of HB 79 is the operative portion, and this is the major new provision:

Sec. 27.060. SMALL CLAIMS. (a) A justice court shall conduct proceedings in a small claims case, as that term is defined by the supreme court, in accordance with rules of civil procedure promulgated by the supreme court to ensure the fair, expeditious, and inexpensive resolution of small claims cases.

(b) Except as provided by Subsection (c), rules of the supreme court must provide that:
(1) if both parties appear, the judge shall proceed to hear the case;
(2) formal pleadings other than the statement are not required;
(3) the judge shall hear the testimony of the parties and the witnesses that the parties produce and shall consider the other evidence offered;
(4) the hearing is informal, with the sole objective being to dispense speedy justice between the parties;
(5) discovery is limited to that considered appropriate and permitted by the judge; and
(6) the judge shall develop the facts of the case, and for that purpose may question a witness or party and may summon any party to appear as a witness as the judge considers necessary to a correct judgment and speedy disposition of the case.

(c) The rules of the supreme court must provide specific procedures for an action by:
(1) an assignee of a claim or other person seeking to bring an action on an assigned claim;
(2) a person primarily engaged in the business of lending money at interest; or
(3) a collection agency or collection agent.

(d) The rules adopted by the supreme court may not:
(1) require that a party in a case be represented by an attorney;
(2) be so complex that a reasonable person without legal training would have difficulty understanding or applying the rules; or
(3) require that discovery rules adopted under the Texas Rules of Civil Procedure or the Texas Rules of Evidence be applied except to the extent the justice of the peace hearing the case determines that the rules must be followed to ensure that the proceeding is fair to all parties.

(e) A committee established by the supreme court to recommend rules to be adopted under this section must include justices of the peace.

Last week the court issued an order creating the new task force, which looks like an excellent group.  It is my unofficial understanding that the first meeting will be held on October 26th in Austin.   

Texas Judicial Organization

I guess this will be an annual event since I made the same basic point about a year ago last May. Justice Willett's May 27, 2011 glib, scathing and comprehensive critique of our court "system" in his dissent in In re Coy Reece begins:

Intrepidity at the Alamo; entering the United States as the Republic of Texas; fifty-eight Texas-born recipients of the Medal of Honor; Bob Wills and George Strait; Nolan Ryan and Babe Didrikson Zaharias; five Super Bowl titles (sadly none this millennium); Dr Pepper and the “little creamery” in Brenham; deep-fried anything at the State Fair; a spirit of daring and rugged independence—the sources of Lone Star pride are innumerable.

Unfortunately, the juris-imprudent design of the Texas judiciary does not make the list. Today’s case is a byproduct of that recondite web, sparking a game of jurisdictional hot potato between us and our constitutional twin, the Court of Criminal Appeals. Truth be told—and this particular truth has been told repeatedly—the State’s entire Rube Goldberg-designed judicial “system” is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom.  . . .

As one might imagine, our bizarre structure has generated some fanciful factoids—practical problems and offbeat jurisdictional oddities that clog the everyday inner workings of our judiciary. Consider:

• Texas has at least nine different types of trial courts, “although that number does not even hint at the complexities of the constitutional provisions and statutes that delineate jurisdiction of those courts.”40 Whether a given trial court has jurisdiction is a five-step inquiry.41

• As Chief Justice Jefferson has pointed out: “Some counties share a multi-county district court, while others have multiple districts within the county. And some counties are part of more than one district, creating a shifting target for litigants who may not know which court’s rules prevail. Overlapping geographical jurisdiction creates confusion for litigants and increases the risk of conflicting rulings in a single area.”42

• At least one county court has no civil jurisdiction whatsoever.43

• Only eight percent of Texas’s justices of the peace are lawyers, even though they can hear cases involving multimillion-dollar claims.44

• A civil suit that would be tried before a twelve-person jury in district court would be tried before a six-person jury if filed in a county court.45

• District court vacancies are filled by appointment by the Governor46 but statutory county court vacancies are filled by appointment by the county commissioners, even though those courts frequently have jurisdiction over the same matters.47

• Whether there is a minimum monetary limit on the State’s district court jurisdiction actually remains an open question.48 While the Constitution has been amended to eliminate a monetary minimum, there is some argument that it is still implied.49

• Generally, jurisdictional limits on statutory county courts range widely by county—from $500 to $100,00050—and some such courts have no monetary limits at all.51

• “Appellate rights can vary depending on which court a case is filed in, even among trial courts with concurrent jurisdiction, and even when the same judge in the same courtroom presides over two distinct courts.”52

The legislature managed to improve upon one of those anomalies - the subject matter jurisdication of statutory county courts - with the passage of HB 79 by Rep. Tryon Lewis and Senator Robert Duncan, in the first called session this summer. Judge Gary Harger worked hard on the bill on behalf of my office and authored a nice summary in this month's Texas Bar Journal.

Race and Risk

Yesterday the Statesman reported on the continuing saga of "The seven [capital murder] cases identified by [then Attorney General] Cornyn [that] were all tainted by testimony by psychologist Walter Quijano, who regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic."  I remember well when this saga was much younger, I was with TDCJ, and I hosted a group of Argentinian students in a discussion of the American death penalty and Victor Saldano, on death row in Texas from Argentina and one of the seven cases. I showed them his page on the death row website and they said something to effect of "why do you even list his race? You Americans are totally hung up on race." That really stayed with me. 

And yes, we are indeed, but not without good cause at this point in our history, as Quijano's fairly recent testimony suggests.  I am among those who are hung up on racial disproportionality in criminal justice and all of the systems we design to intervene in people's lives from one angle or another. I find it ironic that we have realized it is illegitimate to use race as a proxy for risk in imposing the death penalty, but there is a raging debate in child welfare about whether race is legitimately correlated with higher risk so that we should actually expect disproportionality, or whether racisim in the system itself has a role that we need to be addressing.  My friend Donald Bauman, now retired from DFPS, recently provided me with the following abstract of some cutting-edge research he has conducted:

Findings indicate an important interaction between race, income, and risk of maltreatment. First, we found that poverty is associated with higher risk assessment scores.  We also found that African American families involved in both substantiated and unsubstantiated cases were assessed by caseworkers as having lower risk than White families.  Finally, when controlling for poverty, race is not a significant predictor of substantiated maltreatment.  However, when controlling for risk, poverty was not a significant predictor of substantiation, while race did emerge as a significant predictor.  This suggests that although income may influence risk assessment, it is not a factor that influences the threshold for the substantiation decision.  Rather, the findings suggest that there are racial differences in the risk threshold used by caseworkers in making the substantiation decision.  Specifically, the risk threshold for substantiation is higher for Whites than it is for African Americans.  One possible explanation for this (as also suggested by Rivaux et al., 2008 regarding the decision to place children in care) is the fundamental attribution error (Ross, 1977), a concept from social psychology that refers to the tendency to undervalue situational explanations for the observed behaviors of others and to overvalue personal explanations, such as traits and attitudes.  In the context of the substantiation decision, this would suggest that poverty (a situational factor) is underestimated in favor of race (a personal factor).  Thus, although poverty may be an important factor to address when assessing risk, caseworkers may be assessing the risk associated with poverty differentially for poor African American families than for poor White families.

In other words, race matters in that initial decision to intervene in the child abuse and neglect system.  In the other camp - though we need to find a way to bring these two views harmoniously together - is the work of Elizabeth Bartholet of Harvard, summarized this June by Chapin Hall at the University of Chicago.

This debate is a huge challenge faced by those of us who work to reduce disproportionality by facing the issue of race and racism head-on.

We believe that the evidence presented at this conference signals that it is time for reconsideration of certain past assumptions and conclusions. It indicates that generally there is a significant black/white maltreatment gap, one that roughly parallels the gap in official maltreatment reports. This evidence contradicts the belief that black children are included at high rates in the child welfare system because of racial bias. This is not to say that the evidence presented removes the possibility of bias. Bias may well exist in pockets of the system, operating in ways that lead black children to be either over- or underserved, and it is present more generally within the larger society. But we find no evidence that initiatives that emphasize reducing the high representation of black children will provide a path to more equitable services.