Tuesday, February 09, 2016

Triplet of Austin PD court losses over police abuse may signal trend

A federal jury recently awarded $877,000 to a man who sued the Austin PD "after police in 2012 tackled him and detained him for a crime he did not commit." That makes three recent cases where the City of Austin was ordered to pay out sizable sums for alleged police abuse. The Statesman quoted local attorney Adam Loewy, who represented the family of the late Larry Jackson Jr., whose parents and widow last week received a $600,000 settlement from the city, suggesting that:
with the Hernandez case, plus one last year in which a jury found that Charles Chacon was subjected to unnecessary force by Austin police officers, “I believe the tide is finally turning.”

“In the post-Ferguson (Missouri) environment,” Loewy said, “I think jurors are much more open to the idea that police brutalize people.”
If he's right, that would signal a major shift.

For some years now, many advocates including your correspondent have considered civil courts a non-viable avenue for police reform in Texas because of qualified immunity, a culture of tort-reform among state judges, and the prosecutor-friendly 5th Circuit waiting to reduce or overturn any verdict that might be achieved at trial. It's one of the reasons Grits focuses so much on the Legislature; there's been more possibility for significant change at the capitol than via litigation on most of the issues I care about. In my experience, the Legislature can occasionally help matters; the most Grits tends to hope for from the courts is that they do not make things worse.

But these things run in cycles. And the vicissitudes of history appear to be altering the context of conversations about police abuse, both among jurors and officialdom. So far, with the exception of new reporting on police shootings, we haven't seen much legislative action on these topics. But if jury verdicts and settlements start to pile up, and the 5th Circuit makes cities actually pay them, that will heighten the incentive for legislators and locals alike to embrace reforms.

Monday, February 08, 2016

Nostalgia for once-open police records

An article by Texas Tribune reporter Jay Root highlights a failing in Texas' Public Information Act related to law enforcement records which is long overdue for remediation. Root sought records related to "Victor Reyes, a Mexican national with a long criminal record whose 2015 shooting spree killed two and wounded three before he was killed by a police officer." Conveyed the reporter:
The Tribune asked the Harris County Sheriff’s Office, which acknowledged this week it has "voluminous" files on the case, to provide information gathered during Reyes’ encounters with local law enforcement on the night the murders took place. The sheriff’s office, which originally blocked release of the records by citing an ongoing criminal investigation, has now adopted a different argument using a more obscure exemption of the Texas Public Information Act.

Since Reyes was killed by a sheriff’s deputy, he cannot be prosecuted. The exemption the sheriff cites is designed to allow police agencies to block the release of files when there hasn’t been a final conviction or deferred adjudication — something that's impossible to achieve when the perpetrator dies while committing a crime. The law enforcement agency has asked Attorney General Ken Paxton to block indefinitely any further release of the records sought by the Tribune.
Jay's of my generation - I'm not sure if he remembers but we (barely) crossed paths at The Daily Texan in the '80s, with him a year or so ahead of me there - so I'm surprised he considers this exemption "obscure." As somebody who was a frequent user of what was then called the Open Records Act to access law enforcement records during the mid-to-late '90s, Grits finds I still harbor a surprising amount of resentment over the changes made in 1996-97 that gutted access to law enforcement records in Texas. Not only do I remember it well, in many ways it was a defining moment for me.

For many years going back to the creation of the Texas Open Records Act following the Sharptstown Bank Scandal, Texas' open records laws were the envy of the nation. (If the Sharpstown history is new to you, start here and here for your remedial lessons.) From that time until the 1990s, national rankings of open records access by state routinely showed Texas and Florida tied or competitively 1-2 depending on the ranking criteria, with Texas particularly good on law enforcement records.

In 1996, after Texas law enforcement had operated under maximal openness for a quarter century, the Texas Supreme Court overturned the Attorney General opinions which had previously governed access to records on these topics. In a case styled Holmes v. Morales - that's then-Harris County DA Johnny Holmes (with his mustache filing as amici) and then yet-to-be-indicted Texas AG Dan Morales - the Supreme Court installed the provisions Root complains about in this article.

Then, the following year in 1997, the Legislature reacted. Police unions, prosecutors and the Texas Municipal League joined forces in a rare strange-bedfellows coalition to outflank the (generally disdained) newspaper and broadcast lobby, who at the time were virtually the only advocates for openness at the capitol, certainly on criminal-justice topics. Politicians may have their differences, but they can all agree to dislike the media!

So, instead of reinstalling the old standards which governed law-enforcement records for a quarter century, the Legislature codified the bad Texas Supreme Court ruling, changing the law so that it no longer required disclosure of records in Texas criminal cases unless the case results in a conviction or deferred adjudication. The problem is, cases where the government exercised its authority without, in the end, being able to prove its case are exactly the sorts of situation most useful for public policy analysis. Such situations may include:
  • Cases involving police or prosecutor misconduct
  • Unsolved cases that were not pursued aggressively
  • Cases where police or prosecutors decide not to pursue charges
  • Suicides
  • Shootings where the suspect dies
The easiest way to sweep police or prosecutor misconduct under the rug is to close records related to closed, unresolved cases. Then, all a prosecutor must do to conceal misconduct from public disclosure is to not prosecute the case and nobody can ever see the potentially incriminating information.

Speaking as someone who, at the time, was a heavy open-records user, the before-and-after difference in access was shocking and stark. Routinely, open records requests to police and prosecutors which previously had produced thick files began to generate a few pages or none at all. Agencies began to send a lot more requests to the Attorney General for opinions. And even where convictions occurred, the files somehow seemed to get thinner after that, with more exceptions applied over time in the letters to the AG asking for excuses not to disclose stuff.

Before that dark period, a Texan could be as proud of the state's open-records laws as she could its well-maintained highways back in the day. In 2016, both those statements come off as a joke. On open records these days, we're considered middle-of-the-pack or worse. And let's please not speak of the roads.

As fate would have it, this issue first spurred Grits to begin monitoring state legislation, opposing bad bills, and eventually the following session, helping promote good ones. After seeing what happened to open-records access in 1997 without any serious opposition, I and a handful of friends decided somebody needed to pay attention to what went on at the capitol on this stuff!

Although state Rep. Harold Dutton still gamely files legislation most sessions to reinstate the pre-Holmes v. Morales standard - sort of a vestigial remnant of a long-ago lost battle - this regrettably has become sort of a dead issue among advocacy groups, in large part because there are fewer and fewer folks around, whether among the press or reformers, who remember what was lost.

Sunday, February 07, 2016

An appeal for the conservative judicial activist pro-Big Government vote in the GOP primary

Grits despises Texas Court of Criminal Appeals elections. Nobody knows who the candidates are. And the campaigns don't raise enough money to educate any more voters than the candidates can reach by driving to a handful of poorly attended forums, or through the lightest possible smattering of earned media. The press barely covers the races, with the biggest outlets at most devoting one news article to all three races before the GOP primary (which is the whole enchilada in 2016 Texas).

The media or advocacy groups can vet candidates if they want but it seems to hardly matter. The results will be determined via the vicissitudes of decision making by an electorate with virtually no information about the court or the candidates and thus no basis whatsoever for choosing among them. I've never seen it polled, but in my experience most laypeople aren't even aware that Texas has separate high civil and criminal courts. Many voters quite literally aren't aware the Court of Criminal Appeals exists.

Thus, I won't be surprised if Steve Smith, with zero criminal law experience and a through-the-looking-glass judicial philosophy, were to defeat Sid Harle, who IMO is easily the most qualified candidate in all three races. Know-nothing demagoguery is all the political rage this season. Still, it's somewhat embarrassing that such an outcome is even possible.

The Texas Tribune reported that Smith "has focused on his opposition to what he calls “judicial lawmaking." Smith said he entered the race largely because he thinks Harle is too moderate."
“I got in at the last minute, right before the filing deadline, when it was clear Harle would not have competition,” Smith said. “The balance between moderate Republicans and conservative Republicans has shifted, and it’s important that a proven conservative take this spot.”

Smith cites Texas v. Villlarreal, a case in which the Court of Criminal Appeals ruled 5-4 that blood drawn from drivers without their consent and without a warrant is not admissible evidence in a DWI case, as an example of a case that he says could’ve easily been decided the other way with a fifth conservative voice.

“Those important cases are being decided 5-4, and I think it’s important to educate the voters that, contrary to public perception, the CCA is not far-right at the moment,” Smith said. “That's cause for concern.”

Harle has said it is not appropriate for judges to address how they would rule in specific cases in advance of hearing them in court.

“You can talk about your judicial philosophy, but you can’t really broadcast what you’re going to do to that degree, or you’d be subject to recusal,” Harle said.
Three things stand out here: First, Judge Harle is right. Every specific case about which Smith has opined on the campaign trail he'll find himself unable to influence once he's on the bench because the opposing side will be able to easily show he can't be a fair ... hmmmm, what's the word? ... oh yeah, a JUDGE!

Second, it's the height of Orwellian demagoguery for Smith to declare on one hand that he opposes
“judicial lawmaking" then announce in the next breath that he intends to vote with the faction of the court which is engaged in overt, unapologetic judicial lawmaking, openly asserting their policy views over the Legislature. That's a logical disconnect akin to declaring, "I oppose abortion so I want to work for Planned Parenthood." A judge running for the CCA in this cycle can be for or against "judicial lawmaking." But if you're against it, you cannot simultaneously declare you'll vote with Government-Always-Wins faction on the court, which is precisely what he's saying.

Finally, Grits would reject Smith's framing of the current factions on the court. He portrays the four votes which reflexively side with the government as "far right," but usually conservatives view judicial decisions which empower Big Government without respect for individual liberties as a bug, not a feature. So, just as Smith critiques judicial activism while declaring he'd vote with the judicial activists, he promises to vote as a conservative on the court while pledging that he will empower government over the individual in all disputes.

In many ways, on many levels, this primary election cycle has been framed as a debate over "what is conservative?" Though most voters couldn't name a CCA judge or pick one of these candidates out of a police lineup, that's at root the question underlying this race, too.

Saturday, February 06, 2016

Previewing interim charges at House Corrections Committee

The Texas House Corrections Committee will meet Tuesday and Wednesday to discuss an array of interim charges, so lets preview each of them ahead of time. First up on Tuesday:
  • Study incarceration rates for non-violent drug offenses and the cost to the state associated with those offenses. Identify alternatives to incarceration, including community supervision, that could be used to reduce incarceration rates of non-violent drug offenders.
  • Study inmate release policies of the Texas Department of Criminal Justice, including the release of inmates directly from administrative segregation.  Identify best practices and policies for the transitioning of these various inmate populations from the prison to appropriate supervision in the community. Identify any needed legislative changes necessary to accomplish these goals.
And on Wednesday they'll hear testimony related to their charge to:
Study recidivism, its major causes, and existing programs designed to reduce recidivism, including a review of current programs utilized by the Texas Department of Criminal Justice (TDCJ) and the Windham School District for incarcerated persons.  Examine re-entry programs and opportunities for offenders upon release.  Identify successful programs in other jurisdictions and consider how they might be implemented in Texas.
Let's walk through be basics on these.

Reducing drug offenders in prison
On incarceration rates for nonviolent drug offenders in Texas state prisons, the go-to source is the TDCJ Annual Statistical report; here's the FY 2014 version. According to that source, about 16 percent of TDCJ offenders on hand as of Aug. 31, 2014 were incarcerated for a drug offense as the primary charge, or 24,005 inmates out of roughly 150,000 incarcerated in TDCJ that day. Of those, 14,256 were incarcerated for possession only and 9,699 for drug delivery. Of the subset of those locked up in state jails (essentially fourth-degree felons), the same report found 37 percent were incarcerated for a drug offense, almost all of them (90 percent) for possession.

Notably, there were 1,998 inmates with a drug offense as their primary charge who are categorized by TDCJ as 3g offenders, a category largely reserved for violent crimes. The reference is to Sec. 42.12(3)(g) of the Code of Criminal Procedure. Drug offenses become 3g offenses if a child was present or involved or if the offense were committed in a drug free zone. While we may not like these drug offenders, its probably unhelpful to group them with murderers. This might be an example of people serving unnecessary extra time because we're "mad at" them, not afraid of them, as Sen. John Whitmire is fond of saying.

As far as the costs of housing drug offenders, the uniform cost report document prepared biennially by the Legislative Budget Board is the go-to source. They put the average FY 2014 cost at $54.89 per day.

OTOH, in truth, how much it costs to house a prisoner varies widely based on what unit they're housed in, whether they receive drug treatment, education, or other services, and whether they get sick, among other things. Recently Grits requested breakdown of the cost per prisoner at all TDCJ units as of 2014. (Thanks to TDCJ Public Information Officer Jason Clark for fulfilling that request.)

Looking at that level of detail, we can see, for example, that SAFP services delivered at the Jester I unit (built in 1885) cost $90.85 compared to an average of $58.72 at the four other units delivering SAFP services. These unit-by-unit data give a clearer sense of how widely costs can vary per prisoner depending on where they're housed. The $55 average LBB uses masks a wide range of differences and could be lowered by closing some of those higher-cost facilities.

As for alternatives to incarceration, my hope would be that debates could move beyond drug courts to the need to adjust drug sentences for low-level possession downward. Texas has invested a great deal in drug courts and proven conclusively that strong probation works. But the resource-intensive tactic cannot scale up to handle the volume of drug offenders cycling in and out of the system at all levels.

Thus, as the committee contemplates alternatives to incarceration, it's worth considering whether offenders caught with four grams or less of a controlled substances should be treated as felons at all, considering all the job and housing implications and other the collateral consequences a felony label entails. Shifting penalties to a Class A misdemeanor for up to four grams of a controlled substance would save the state big money and dramatically reduce collateral consequences for those low-level offenders.

How much money could be saved from reduced penalties? Last session, Rep. Senfronia Thompson proposed HB 254, which would have reduced the sentencing category for people possession less than a gram of a controlled substance, so a subset of the up-to-four-grams category. The Legislative Budget Board estimated that the state would save more than $105 million in the first biennium and upwards of $139 million in the second. If sentences for up to four grams were reduced to a Class A misdemeanor, the reduction in the incarceration budget would be even greater.

Those levels of savings could finance an impressive amount of treatment and diversion programming for these new Class A drug offenders, nearly all of whom would inevitably receive probation (just like most Class A drug offenders do now). Once the Comptroller certifies the savings, some or all of it could be diverted to probation departments to pay for additional treatment services and possibly reduce the portion of probation budgets paid for by probationer fees, an issue getting increasing levels of attention lately.

Last session the Legislature boosted TDCJ's budget by more than $400 million, which seemed like a remarkable amount for a bunch of self-styled fiscal conservatives to spend on a Big Government program with no clear extra benefit in public safety effectiveness. (Of course, the same can be said of the border surge.) And that doesn't include the portion of corrections spending outside of TDCJ's budget. In a fiscal environment where oil revenues are down and legislators will be looking for cuts, not increases, the best way to pay for alternatives to incarceration would be sentence reductions, which themselves constitute an "alternative" to sending low-level drug addicts to state prison.

Inmate release policies and ad seg
Regarding releasing inmates directly from ad seg, Grits has addressed this question previously and refer readers to those related posts. Texas recently had its first prisoner pass the 30 year mark in solitary confinement, which seems outlandish except that he won't be the last. As of 2014, Texas had more prisoners in solitary confinement than the entire prison populations in 12 states. The union for correctional officers has claimed excessive use of solitary is responsible for higher assault rates on prison staff.

Staffers preparing their legislators on these issues may want to check out a new report on solitary confinement titled "Time in Cell" and a series of essays published recently in the Yale Law Journal reacting to its findings. Also, Texas figured prominently in a Marshall Project story from last year related to inmates released directly from solitary.

Also relevant: Last year the United Nations issued the Mandela Rules related to the use of solitary confinement which include some relevant suggestions. Those rules emphasize that the period of imprisonment should be "used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life." When prisoners who've been in solitary are released, "the prison administration shall take the necessary measures to alleviate the potential detrimental effects of their confinement on them and on their community following their release from prison."

The Mandela Rules suggest a step-down pre-release strategy which at present is foreign to TDCJ's programs and culture.
Before the completion of the sentence, it is desirable that the necessary steps be taken to ensure for the prisoner a gradual return to life in society. This aim may be achieved, depending on the case, by a pre-release regime organized in the same prison or in another appropriate institution, or by release on trial under some kind of supervision which must not be entrusted to the police but should be combined with effective social aid.
Whether or not Texas fully adopts the Mandela Rules, that particular suggestion makes a lot of sense.

Understanding recidivism, planning for reentry
The interim "charge" up on Wednesday really addresses two separate but related issues: recidivism and reentry. This LBB report is the go-to document for recidivism data. For the cohort of prisoners released in 2011, the proportion rearrested within three years was:
  • Prison: 46.5%
  • State Jail: 62.0%
  • Intermediate Sanction Facility: 57.5%
While the proportion re-incarcerated in TDCJ in three years was much lower:
  • Prison: 21.4%
  • State Jail: 30.7%
  • Intermediate Sanction Facility: 36.5%
Among states, Texas' recidivism rates - especially the 3-year incarceration rate - are remarkably low. But that's no cause for celebration! In reality, Texas' recidivism rate is so low because our incarceration rate is too high. Texas incarcerates an excessive number of low-risk offenders who would be unlikely to re-offend even if they had never been sent to prison. So the low recidivism number is really, in many ways, a mark of shame. It's low because we're overusing incarceration as a punishment beyond what's necessary for maximizing public safety.

If Texas commits to a strategy of de-incarceration, in all likelihood recidivism rates will rise. But that's a sign of normalization, not of failure. The day we're really limiting incarceration to those we're "afraid of" as opposed to people we're mad at, those we're "afraid of" who're released will, as a class, recidivate more. But that's not an argument for locking up low-risk offenders!

As to reentry questions - which are related to but separate from the recidivism debate - legislators could do worse than to look again to the Mandela Rules, cited above, which advise that, "The duty of society does not end with a prisoner’s release. There should, therefore, be governmental or private agencies capable of lending the released prisoner efficient aftercare directed towards the lessening of prejudice against him or her and towards his or her social rehabilitation." In Texas by contrast, released prisoners are given $100 in "gate money" and a bus ticket.

The committee should look at some of the barriers to successful reentry, like restriction on TANF benefits and food stamps for certain drug offenders discussed in a Grits post earlier today.  I'd also like to see the committee look for policies to reduce the accumulation of fines, fees, and debts facing ex-prisoners upon reentry. And there should be more focus on reducing the burden on families when their loved ones come home from prison.

The two biggest barriers to reentry, though, remain housing and jobs. These are difficult problems which don't lend themselves to simple solutions. In fact, it's hard to imagine making a dent in either without some state investment, which as mentioned runs counter to an oil-starved budget environment. And yet, if the Legislature doesn't address these questions then we're not being honest about the often state-created barriers to reentry facing ex-offenders.

The Lege eliminated job assistance for ex-prisoners during the 2011 budget crunch and has declined to limit the extent landlords can discriminate against ex-offenders regarding housing, even though one in five Americans has some sort of criminal record. In the past, efforts to expand reentry housing opportunities have been too quickly scuttled in response to NIMBY backlash. Legislators will need to pony up money for jobs programs and other reentry services and stand up to NIMBY opposition over housing to make much more headway on reentry questions. These problems are fairly well understood, but they'll require unusual political courage and money to honestly address them.

MORE: Grits contributing writer Michele Deitch emailed to say:
I wanted to flag for you that the Lege doesn't even have to reach to an international source like the Mandela Rules for guidance on this issue.  The ABA's Standards on the Treatment of Prisoners provide similar guidance as to the need for step-down type approaches.  Here is a link to the ABA Standards.

You would want to look at Standards 23-2.6, 2.7, 2.8, 2.9, and 3.8, all of which deal with seg issues.   Pay particular attention to 2.9, which addresses procedures for placement and retention in long-term segregated housing, and especially subsection (f), which addresses the need for a less-restrictive setting in the months before release to the community.  The drafters definitely had in mind a step-down type approach to segregated housing.  (As the original drafter, I can say that with some authority! :) )

Ban on benefits to women offenders with kids harms reentry, offends common sense

Though Texas relaxed its prohibition on drug offenders receiving food stamps during the latest legislative session, the state remains an outlier when it comes to denying benefits to women convicted of drug offenses who're raising kids on their own. Pew's Stateline.org reported Dec. 29:
Hundreds of thousands of Americans are serving time for drug offenses — nearly a half-million according to the latest numbers available, from 2013. For many ... leaving prison with a felony conviction on their record adds to the hurdles they face re-entering society. A 1996 federal law blocks felons with drug convictions from receiving welfare or food stamps unless states choose to waive the restrictions.

The bans, which don’t apply to convictions for any other crimes, were put in place as part of a sweeping reform of the nation’s welfare system, and at the height of the war on drugs. Now many states are rethinking how to help felons become productive citizens and reduce the likelihood they will return to prison.

Since 1996, 20 states have lifted restrictions on food stamps, known as the Supplemental Nutrition Assistance Program, and 24 allow people with certain types of drug felonies to get those benefits — leaving six states where a felony drug record disqualifies a person from receiving them.

States have been more restrictive when it comes to extending welfare benefits through Temporary Assistance to Needy Families: 14 have lifted the restriction, 24 have some restrictions and 12 have full restrictions barring felons with a drug conviction from receiving cash assistance.
The story described Texas' new legislation thusly:
[Last] year, Utah, Texas and Alabama became the latest states to lift blanket bans on receiving food stamps.

“If we want people to stay out of trouble we’ve got to give them a hand up, not a foot down,” said state Rep. Senfronia Thompson, a Democrat who pushed for the repeal in Texas. She said providing help is much less expensive for the state than paying for repeated incarcerations.

While Texas’ food stamp program is now open to anyone convicted of using or selling drugs, those who violate their probation or parole are ineligible for benefits for two years. If they are convicted of another felony, drug-related or otherwise, they are barred for life.

Alabama scrapped its ban on food stamps and cash assistance.
The Marshall Project on Feb. 4 produced two graphics in a short story, showing Texas among the holdouts

The partial relaxation of the food stamp ban in Texas is great news, but the ban on Temporary Assistance to Needy Families benefits for drug offenders has always baffled me. This is a program which primarily (among drug-offender ex-inmates, nearly exclusively) benefits single women with children. So punishing Mom punishes her kids who didn't do anything. It's no wonder 37 or 38 states (Pew and the Marshall Project offer different counts) have already at least partially lifted the TANF ban. That's one of those penny-wise-pound-foolish policies that cannot survive close, rational scrutiny, particularly for anyone who purports to be serious about helping ex-offenders succeed upon reentry.

Friday, February 05, 2016

More on mulcting probationers for fees in Bell County, Texas

In a recent post ("Probation Fines Contribute to 'Debtor's Prison' Problem in Texas"), Grits contributing writer Sandra Guerra Thompson linked to a report from the Robina Institute analyzing the Bell County probation system based on an analysis of records and interviews with dozens of probation and court officials, plus multiple focus groups with probationers. The whole thing is worth reading, but I thought it worthwhile to pull out a few highlights from the densely packed 25-page document.

For Bell County, "In 2014, the average length of probation sentences pronounced for misdemeanor cases was 14 months; for felonies it was 74 months or approximately 6 years."

The report cites a statute allowing courts to extend the length of probation for nonpayment of fees. In particular, the authors noted, "If the term of community supervision is extended, the term for a first, second, or third degree felony cannot exceed ten years. For a misdemeanor, an extension may not cause the defendant’s term to exceed three years unless the  extension is based on the defendant’s failure to pay fines, costs, or restitution, in which case the term may be extended for a further two years if the court finds an extension would increase the likelihood of payment. Tex. Code Crim. Proc. art. 42.12 §§ 21(b-2), 22."

Here's a bit of salient  detail about probation revocations:
In a two-month sample of violations hearings in Bell County during September and October 2013, probationers were revoked in more than 87 percent of all hearings. Nearly one-third of the revocations were for “technical-only” violations. Among probationers revoked and incarcerated for more than six months, more than a third were for technical-only violations. Statewide, about half of revocations for felony probation cases are a result of technical violations, while the other half are for subsequent new offense convictions or arrests. In fiscal year 2012, revocations of felony probation cases in the state accounted for thirty percent of prison admissions and forty-three percent of state jail admissions.
In the year ending August 31st, 2014, eighteen percent of the felony direct supervision probation caseload ended in revocation and thirty-nine percent of the misdemeanor direct supervision caseload resulted in a revocation. The rate for the felony caseload is similar to the statewide rate: in fiscal year 2012 (the most recent available data), the revocation rate was 14.5% for the state.
Both probation officials and probationers agreed that, "Too many conditions are imposed during probation and conditions are not personalized at sentencing."
In Bell County, there are approximately 25 standard conditions for all probationers (see Appendix A). Additional conditions, such as attending a treatment program or increased reporting, are sometimes added as sanctions for noncompliance. While misdemeanants can initially be assessed as low risk and report less frequently, those convicted of felonies must be supervised for six months before they can be moved to a less frequent reporting  status.
probation officials felt that the conditions are sometimes are too “cookie-cutter,” and not tailored properly to individual probationers. For example, these officials commented that probationers who do not have alcohol or drug problems should not be required to attend substance abuse programming. The judicial perspective was similar: there are many conditions, and while the judges would like to be able to personalize them, there is often not the time or resources to do so. One noted exception was specialty courts, such as mental health court.  Interviewees expressed the belief that because specialty courts involve smaller caseloads, probation officers are better able to make individualized recommendations to the court.
Probation officers and probationers both emphasized how "Having too many probation conditions can also interfere with employment. The probationers at one site felt that the high number of conditions were too onerous to abide by them all."

Said one probation officer: "Probation is not just about punishment. If courts wanted to just punish, they would just send them to prison. Probation, especially for the young probationers, is a learning process. If you just are hard on probationers and it seems unrealistic, they just won’t come back."

For these reasons, "The numerous conditions can cause probation to be perceived as more difficult than incarceration." Indeed, "One probation officer suggested that a jail or prison sentence can be easier than a probation sentence as probation sentences are longer, more expensive (because of probationer fees), and have more requirements — a perspective that was echoed by many of the people we interviewed." Remarkably, inmates in jail advise one another to eschew probation for incarceration:
One probationer, after being on supervision for some time, felt that the conditions were better than being incarcerated, though others in the county jail told him that he should not take probation because of all of the conditions that would be imposed on him. He accepted probation anyway, since he had five children and did not want to be incarcerated away from them.
Early release provisions in Texas' 2007 probation reforms aren't being promoted by the department but judges are apt to grant them when they receive a qualifying petition. The report found that, "The ability of probationers to petition for early release appears to serve as an incentive once probationers are aware of the possibility." However, probationers say their POs don't inform them about the possibility of early release, and probation officials "do not keep records of the frequency of petitions or grants of early termination." Clearly this isn't a departmental priority, probably because every probationer released from supervision early reduces the department's budget.

Shorter probation lengths make more sense from the perspective of determining the likelihood of reform. "Many criminal justice officials feel that they know early on in a sentence whether someone will be successful on probation," according to the report.

"One perspective from the prosecutor’s office was that a probationer’s success could be determined in the first few years of supervision: “We need [a term of probation] long enough to see if people will be successful, and we need about two years to see that. Most recidivism studies are based on three to five years.”

Noted the authors:
About half of the probation department’s budget, including salaries, comes from probationers’ payments. This degree of reliance on fee collection from probationers to meet basic operating needs is consistent across the state. Regular probation supervision costs the state $1.63 per day and costs the probationer $1.57 per day.

The state pays more for intensive supervision probation and specialized caseloads, while the burden on the probationer remains roughly the same. Fees were an important and salient issue throughout the interviews. Respondents stated that probationers are required to pay for pre-sentence investigations, supervision fees, drug testing, counseling, and fees added by the state legislature as well as restitution and fines.
Nonpayment of fees is the central conundrum of community supervision:
One officer stated that only a very small percentage of probationers stay current in making their payments. Officers often reported feeling like “bill collectors.” One officer stated, “It is such a challenge for most [probationers] who don’t have a car or have six kids. [It] is an uphill battle [to collect fees] from the first day.”
Said one probation officer:
Money is the hardest thing about probation, collecting money. We have a collection compliance class. It’s a sanction for people who are behind on their payments. This is one of the hardest things to talk to our clients about and then you have these situations when people say they only have enough money to put food on the table and take care of their family and what do you want me to do? They just don’t have any money. There is no income. A lot of them have problems getting employment because of their criminal history and that makes it difficult and if they do have a job, it is minimum wage and what takes precedent? Or, they’re on a fixed income and they can only pay so much.
The authors specifically found that, "Fees reduce the incentive and ability to grant early termination and may cause sentences to be extended or lead to sanctions."
Probationers who are successfully complying with their conditions (including paying their fees) are the ones for whom early termination is possible. However, once probation is terminated, no more supervision fees can be collected—meaning that every early termination deprives the probation agency of a portion of its anticipated budget. Several criminal justice officials noted that probation sentences are extended in order to collect unpaid fees (and restitution). Sometimes fees or community service can be reduced. However, there are some cases where probationers meet all of their conditions but are unable to pay all of their fees. Sometimes these cases are revoked and sometimes probation is extended until the fees are paid.
Grotesquely, probation officers reported "filing a revocation at the end of supervision if fees were unpaid."

While at the Legislature you'll often hear probation departments say the "never" revoke probationers over nonpayment of fees, the reality is more complex. Probation officers overtly tell their clients that they'll go to jail if they can't pay their fees, so when they cannot pay, sometimes they won't show up. A judge tied together the full picture:
A judge tied fees to other types of noncompliance and suggested the probationers abscond when they cannot pay their fees, and the absconding leads to revocation: “I’m not going to revoke someone over money especially if that’s the only violation, but that is usually coupled with failure to report because they were told, if they don’t pay, they would be revoked.”
Among those paying the freight, "Probationers viewed fees as more burdensome and more punitive than did criminal justice officials."
While the criminal justice officials were divided on their opinion of fees and payments, probationers overall felt that the fees were burdensome and led to more negative repercussions. If they didn’t pay, they were threatened with incarceration, told to complete classes, and had to report more frequently. One stated, “The only thing I don’t like [about the conditions of probation] are the payments. They don’t go off your incomes.” Another said, “They just expect you to come up with the money. . . I work but it’s not easy.”

The amounts owed varied, but were not insubstantial. In one site, one probationer reported owing an $1,800 balance. At the beginning, the payment was $60 a month, then around $200. The probationer didn’t know why the payment amounts changed or for what the money was owed, and was simply given a paper by his probation officer indicating how much to pay each month. Another reported paying $285 a month to probation and $200 a week for child support. Many of the probationers expressed the difficulty they had finding a job with their records.

Thursday, February 04, 2016

Reforming use-of-force policies, incarcerating pregnant women because they're poor, and other stories

Let's share a few links with Grits readers, just to clear the browser tabs:

Charles Sebesta as Inspector Javert
Defrocked prosecutor Charles Sebesta is waging a legal battle to overturn the state bar's decision to disbar him, reported Brandi Grissom at the Dallas News. He was already retired so this legal campaign, which must be costing the guy a small fortune, is all about ego. It's like watching Inspector Javert drown himself in the Seine.

State invests $400K in defense support on DNA mixtures
The Houston Chronicle ran a feature on the review of DNA mixture cases going statewide through the Forensic Science Commission, which Grits has discussed at some length. That report included this notable news:
Signs posted in Texas prison libraries in December tell inmates in English and Spanish about the issue and provide a Harris County post office box to which inmates may write if they believe their cases included this kind of DNA evidence.

Bob Wicoff, head of the appellate division for the Harris County Public Defender's Office, said about five to seven letters arrive each day, but he anticipates the box eventually could receive hundreds.
Backed by a $400,000 grant from the Texas Indigent Defense Commission, Wicoff will spend the next several years steering the statewide effort for the defense bar, aided by volunteer lawyers and law students. He will train lawyers to understand the science and vet cases to see whether they meet the criteria.
Dueling use-of-force reform suggestions
Grits earlier mentioned that Campaign Zero, a project of the national Black Lives Matter movement, had begun targeting use of force policies as an avenue for reform. Now the Police Executive Research Forum has come out with its own set of more moderate reform proposals on the topic. As I wrote in an email to two of Grits' contributing writers, between those two sets of suggestions - plus the legion of law enforcement interests who will just say "no" to any reform proposals - new terms of debate over use of force policies are beginning to emerge. For the first time in my life, people don't just ask Sam Walker what to do and then stop the debate!

More conservatives push for asset forfeiture reform
The Institute for Policy Innovation, a conservative think tank which to my knowledge has never done much on criminal justice before, is hosting an event on asset forfeiture next week in Dallas in collaboration with the Right on Crime campaign. See a column in the Fort Worth Star-Telegram from their president on the topic.

Incarcerating poor pregnant women pretrial in Tarrant County
In the Star-Telegram, see a story about women taking prenatal classes in the Tarrant County Jail. Particularly disturbing, some of the 20 pregnant inmates in the Tarrant County Jail are "waiting to make bail," meaning a judge deemed they were eligible to be released but they didn't have enough money to pay a bail bondsman. So poor women stay incarcerated and county taxpayers pick up the tab for their prenatal education classes and healthcare instead of Medicaid. Does that make any sense?

Cornyn pushing federal sentencing reform
Grits doesn't track federal stuff much but can't help but notice that Sen. John Cornyn continues to expend political capital on criminal justice reform even as Texas' junior senator and active presidential candidate Ted Cruz opposes it. Bully for Cornyn, and good luck to him.

Wednesday, February 03, 2016

Probation Fines Contribute to "Debtor's Prison" Problem in Texas

The University of Minnesota's Robina Institute has just published a new study on the probation system in Bell County, Texas.  It sheds light on yet another piece of the "debtor's prison" issue.  The report details the causes of probation revocations and the role that fines play in straining, and even ruining, probationers lives.

The authors conducted 43 interviews of probationers, probation officials, judges, defense attorneys, and prosecutors in the Bell County.  What the report uncovers is that judge are seen to impose probation conditions that inadvertently set people up for failure by being too onerous and not taking into account a person's unique circumstances.

The report concludes:"The picture [this study] paints is one of a complex system, tasked with ensuring that those under supervision abide by a lengthy list of conditions and remain crime-free, all while working within the realities of probationers' daily lives."

More distressing is the fact that the legislature's penchant for extracting money from criminal defendants has turned probationer officers into "bill collectors."  The report states: "Though many of the probationers had limited financial means, the probation system in Bell County--and across the state--is largely funded by probationers' fees, turning probation officers into "bill collectors" to finance the system and burdening the probationers who already struggle with financial instability."

Another new report by the Robina Institute also finds that the United States has a "mass probation" problem as compared to Europe, similar to the mass incarceration problem with which we are more familiar.

Taken together, the two reports mean that the state's use of high probation fines over many years destabilizes people's lives, AND that we do this to an alarming number of people.

Unmaking Murders, and other exoneration stories

Your correspondent was briefly quoted in the Dallas News' coverage of the latest annual report from the National Exoneration Registry, available here.

Texas saw 54 exonerations in 2015, 42 of which were drug cases from Harris County. Addressing the drug exonerations, the registry report asked the obvious question:
Why did these defendants plead guilty?  Inger Chandler offers two explanations: some probably thought the pills or powders they were carrying contained illegal drugs when in fact they didn’t; others — especially defendants with criminal records, who generally cannot post the comparatively high bails that are set for them and who risk substantial terms in prison if convicted — agreed to attractive plea bargains at their initial court appearances, despite their innocence, rather than remain in pretrial custody and risk years in prison.

There is some evidence that pretrial detention and the fear of long terms of imprisonment did influence these false guilty pleas. Twenty of the 25 Harris County drug exonerees who pled guilty to significant terms of imprisonment (3 months to 7 years) had felony records that we know about, while 15 of the 23 who had no known criminal records got no time in jail at all.
In 41 of the 73 drug crime exonerations in Harris County the defendants were arrested on the basis of “field tests” that indicated the presence of controlled substances. (In the other cases the arresting officers mistook an innocent white powder for cocaine, a hand-rolled cigarette for marijuana or non-prescription pills for controlled drugs.)  Commonly-used drug field tests are  notoriously unreliable; they routinely misidentify everything from Jolly Ranchers to chalk to motor oil as illegal drugs. They are inadmissible as evidence in court but sufficient to justify an arrest and they may convince an innocent defendant that she is bound to be convicted at trial.
The 149 exoneration cases nationally, as a whole, include more cases than any previous year in which:
  • Defendants falsely confessed
  • Government officials committed misconduct
  • The convictions were based on guilty pleas 
  • No-crime fact occurred
  • A prosecutorial Conviction Integrity Unit worked on the exoneration
The first Conviction Integrity Unit was in Dallas and Texas now has one in each of its five largest counties, with Harris County currently the most active. The rise of Conviction Integrity Units is a big reason the number of exonerations keeps rising in Texas and nationally. Exonerations historically have been proven by lone-wolf attorneys, journalists, or lay investigators against overwhelming odds. When DAs put their institutional weight behind these efforts and facilitate exonerations instead of obstruct them, they tend to happen with greater alacrity.

Another notable fact bite: "Five defendants who had been sentenced to death were exonerated in 2015: one each in Alabama, Arizona, Georgia, Mississippi and Texas. They had been imprisoned for 30, 25, 28, 19 and 10 years, respectively." Alfred Brown out of Houston was the Texas death row exoneree.

Under the subhed, "Unmaking Murderers," the report noted that 58 murder convictions were overturned in 2015, the most ever. They also recorded the highest ever number of overturned convictions based on false confessions (27).

A whopping 44% of 2015 exonerations nationwide came after defendants pled guilty! (Harris County's drug cases boosted that number.)

Finally, it's worth pointing out one of the final Texas' exonerations of 2015, that of Calvin Day in Bexar County, a doctor charged with sexually assaulting patients in his office. According to the registry's summary of his case, Day passed a polygraph related to allegations that he had extramarital relations with then-elected DA Susan Reed. In response, her First Assistant Cliff Herberg essentially threatened the defense attorneys who in turn did not aggressively interrogate the key witness against their client. (See related Grits coverage.) In open court in December when Day's case was dismissed, the trial judge accused Reed and her first assistant of "inappropriate" conduct. In this instance, the case falling apart may have less to do with Day's lack of culpability than the state's bungling. He still faces criminal charges related to an alleged assault on a different patient.

Tuesday, February 02, 2016

Corpus prosecutors cheat to win, alleges trial judge

One of the subscriptions Grits donors pay for is to the Corpus Christi Caller Times, without which your correspondent would have missed this most recent high-profile example of alleged prosecutorial misconduct in the Anthony Macias murder case.

Concluded Judge Nanette Hasette (!) in her order reversing Macias' murder conviction, "The court concludes that the intentional suppression of evidence and lack of timely disclosure of exculpatory, mitigating and impeachment evidence described herein constitutes prosecutorial misconduct and undermines the confidence of the public in the judicial system, and the outcome of this trial specifically," Wrote courts reporter Krista Torralva ("Judge finds prosecutorial misconduct in murder case," 2/1):
Prosecutors could face criminal charges or state bar sanctions for violating evidence disclosure laws.

Defense lawyer John Gilmore said he has not filed a grievance with the state bar but is considering the options. The defense also is looking into whether the law could prevent prosecutors from retrying [Courtney] Hayden, 25.

Two weeks after a jury sentenced Hayden in December to 40 years in prison, [prosecutor Jenny] Dorsey faxed a letter to the defense telling them the medical examiner's initial opinion of the fatal gunshot wound was different from his trial testimony. Dr. Adel Shaker testified Macias was shot from up to three feet away. But he initially believed the shotgun's muzzle was against Macias' chest, which defense lawyers argued supports self-defense. A text from Shaker to Dorsey before he testified said he "could live with three feet."

Hernandez said her family doesn't blame prosecutors. They felt Dorsey advocated for them.

Outside the courtroom, Hayden's mother, Maggie Hayden, condemned prosecutors' actions. She called the judge's order "vindication."

"(Prosecutors) owe it to the public to be truthful and they lied," she said. "I have no sympathy for them at all."

Prosecutor Mike McCaig, who represented the office, declined to comment. District Attorney Mark Skurka, who is in the second week of an attempted capital murder trial, issued a statement late Monday saying he agrees Hayden deserves a new trial but disagrees with the judge's findings of prosecutorial misconduct.

"Our office holds itself to a standard that exceeds that required by law, and for that reason I agreed that she should receive a new trial," Skurka said.

"As District Attorney, I have always strived to do justice and comply with all applicable law … And I have endeavored to instill that same sense of justice and duty in my prosecutors," Skurka said.

In a two-day hearing, defense lawyers accused Skurka of instructing Dorsey to not disclose Shaker's wavering opinion. Skurka denied the accusation but said in retrospect he didn't have all the information.

The letter Dorsey sent to [defense attorney John] Gilmore, under [supervising prosecutor Retha] Cable's direction, didn't mention a discussion with Skurka. A previous draft the defense subpoenaed showed Dorsey wrote Skurka's advice, "amounted to — don't worry, experts can change and develop their opinions over time."
Grits readers last saw Mark Skurka in another Krista Torralva story reacting to evidence that his office may have prosecuted false claims against jail inmates for assaulting corrections officers, a charge his office filed 30-40 times per year. He tightened up corroboration requirements to make sure it wouldn't happen again while failing to revisit old cases for possible innocence claims or prosecute a deputy who allegedly beat, then falsely accused, an inmate.

This time last year, Grits authored a post titled, "Is reticence of Nueces prosecutors to disclose evidence an institutional failure?"

These latest allegations add to a nascent perception that the Nueces County DA's office tolerates or even somehow promotes a culture that condones concealing exculpatory, mitigation or impeachment evidence.

Go get 'em, Ms. Torralva. Your reporting recently has been worth the Caller Times subscription price.

Saturday, January 30, 2016

Which prisons, state jails might Texas close next?

Texas famously closed three prison units in recent years. Could we close more?

After the Legislature raised property-theft thresholds to $2,500 last session, Grits expects downward prison-population trend lines to descend even further. And with legislators seriously discussing possible reductions in sentences for low-level drug possession, the possibility arises that Texas could close even more prison units in 2017, particularly so-called "state jails" (which in essence house people convicted of fourth-degree felonies, known in Texas penal-code parlance as "state jail felonies").

To begin thinking about this question, Grits asked TDCJ's public information officer Jason Clark for a list of private prison contracts up next year, since those are the easiest units to close (because the state can simply not renew the contract and doesn't have to worry about closeout costs on the real estate). Two of the three units Texas closed so far have been private facilities.

There are four state jails whose contracts expire Aug. 31, 2017 which conceivably could be targeted for closure if current incarceration rates continue to decline. All four are operated by Corrections Corporation of America:
  • Bartlett State Jail (1,049 beds)
  • Bradshaw State Jail (1,980 beds)
  • Lindsey State Jail (1,031 beds)
  • Willacy State Jail (1,069 beds)
The other private units with contracts up next year don't amount to much, capacity-wise, so future prison closures beyond the state-jail system likely should extend to state-run units.

As Grits has discussed at some length in the past, there are many criteria on which legislators might prioritize which units to close. Private facilities stand out for ease-of-closure. But there are units around the state which can barely remain staffed because of worker shortages, which have not eased as rapidly as one might expect given the recent oil-price bust. Other units have trouble providing sufficient clean water to inmates and staff (prison units are notorious water hogs). And some older units built a century ago or more have exorbitant cost-per-prisoner ratios, creating a natural closure-target list of the most expensive ones, if such things were based on a pure cost-benefit analysis.

Finally, there are units which meet none of those criteria but which lie on real estate that would be worth much more to local developers and the tax rolls if the property were redeveloped to reflect it highest, best use. Two of the three units closed already resided in those sorts of desirable development corridors. The Dawson state jail in Dallas stood in the way of the city's Trinity River Redevelopment, while the Central Unit near Sugarland sat between a business park and the regional airport, with the local chamber of commerce supporting its closure. As more once-rural units buck up against suburban sprawl and find themselves neighbors with commercial developments, country clubs, and expensive homes, another short list emerges based on a set of interests which lie beyond the prison walls and even state government.

In an era when the United States has 5 percent of the world's population and 25 percent of its prisoners, with Texas incarcerating more people by far than any other state, Grits doesn't care much which prisons the state closes, or why. I just want them to close more. We can debate later how much deincarceration is too much. Right now, we're a long way from that particular fork in the road.

Thursday, January 28, 2016

Senators hate on driver surcharge law: 'Immoral,' 'blood money,' 'debtor's prison'

At a Texas Senate Transportation Committee hearing yesterday, Chairman Robert Nichols chastised the Department of Public Safety for failing to implement an amnesty program since 2011 for the Driver Responsibility Surcharge, even though the agency has authority.

Last year, DPS officials told legislators they were considering another amnesty program during the interim, but backed away from the commitment after the members left town. Chairman Nichols told them they didn't need to wait for legislative approval and to come back to his committee March 29 with plans for an amnesty program and other suggestions for mitigating public harm from the program.

You can watch the hearing here, it's the first item up. And for once, there was good MSM coverage:
Here are a few money quotes, first from the Statesman:
State Sen. Rodney Ellis, D-Houston, called the program immoral because a failure to pay the fees — which are levied in addition to court costs, fines and penalties — results in an automatic suspension of a driver’s license, placing those who can least afford to pay at risk of losing jobs.

About 1.3 million drivers have lost their licenses under the program, he said.

“To me, it just looks like what we’ve got here is a debtor’s prison,” said state Sen. Don Huffines, R-Dallas, who noted that the state has been able to collect only $1.5 billion of the $3.9 billion in fees assessed since 2003.

“You’ve got $2.4 billion owed by the poorest people in our state. That just seems like bad government,” Huffines said. “We’re making a permanent underclass here.”
From the Dallas News:
“I’m not sure if I’ve ever seen a law that the unintended consequences have had such a negative effect on our public,” said Harris County Criminal Court Judge Jean Spradling Hughes.

Critics of the program, which was created in 2003, have long said it is unfair to poor Texans. By suspending the license of a driver who can’t afford to pay surcharges and then sending them to jail when they’re arrested for driving without a license, criminal justice reformers say the program creates debtors’ prison.

Several lawmakers agreed.

“This is very similar to the spiraling effect of a payday loan,” Sen. Sylvia Garcia, D-Houston, said Wednesday. “It just makes poor people poor.”
From the Chronicle:
"The program has problems and has had problems since Day One," said Committee Chairman Robert Nichols, R-Jacksonville. Noting that lawmakers have aired grievances about the program for several years, he added, "we have given you enough direction to work on the problem."
From the Tribune:
Outside the hearing room, Bill Hammond, CEO of the Texas Association of Business said he was troubled by the way the program forces people who need to drive to work to risk exorbitant penalties.

“It’s failed public policy. It’s not working,” Hammond said, describing it as "double jeopardy." “In order for people to eat, they have to work, and in order for them to work, they’ve got to drive in most cases. So it’s just a cascading situation that gets worse and worse, and it doesn’t create the behavior it’s intended to create.”
And here are a few items from Grits' notes:

The Legislative Budget Board told the committee the program raised $151.2 million in FY 2015. Hospitals received much less, though. Greg Glod from the Texas Public Policy Foundation gave the committee this spreadsheet showing how much went to individual hospitals last year: $54.7 million.

The collection rate has risen from 40% in 2010 to 51% in 2014, said LBB, mainly because of waived revenue from amnesty and indigence programs.

Since 2003, the program has billed $3.9 billion dollars but collected only $1.5 billion, said LBB. (N.b., since 1.5 is 38% of 3.9, I don't understand where the 40 and 51% numbers come from!)

Texas added more than 681,000 new DRP cases in FY 2015, and 1.8 million drivers have active cases.

Chairman Nichols suggested the state should find ways to "reward good behavior" by reducing surcharges instead of focusing only on punishment.

Sen. Wallace Hall called DRP revenue "blood money" and questioned whether the government should be in the business of subsidizing commercial hospital ventures at all.

Sen. Lois Kolkhorst, who is the hospitals' staunchest supporter on the committee, told Hall that government already massively subsidizes health care and that ship has sailed. But she also chimed in at one point to say, "I don't want a debtor's prison" and seemed genuinely concerned at the huge number of people in her district who owe surcharges.

Sen. Sylvia Garcia compared the effect on poor people to that of "payday loans," an analogy the other senators picked up approvingly.

Elizabeth Henneke of the Texas Criminal Justice Coalition offered written testimony (uploaded here) an an anecdote about an indigent client, a 67 year old woman, who'd been incarcerated for a week four different times, had lost her home and marriage because she couldn't drive to work, and essentially would never be free from the entangled mess.

Henneke said most lawyers do not advise their clients about the DRP. (That's a huge problem: Grits thought they were required to do so after the Supreme Court's Padilla case made them advise of collateral consequences.) She suggested the Lege divert court fees from general revenue to raise money for hospitals because then judges can address indigence and attorneys would better advise their clients.

Judge Jean Spradling Hughes from Harris County told the committee, "This law has not enhanced public safety in fact it has put it in dire straits." "Daily I see people who are in this cycle," she declared, "and are not going to get out," and not just poor people but middle income people, too.

Judge Hughes suggested doubling the cost of driver licenses or adding $5 to vehicle registration to cover the cost of abolishing the program.

Right now, she said, defendants must choose between paying surcharges to get a driver license or paying for insurance. "I can put them in jail for a year and it's not going to change their behavior," she said. "Most of the people want to comply but financially they just can't do it."

Emily Gerrick of the Texas Fair Defense Project emphasized how quickly everything adds up. After a first surcharge goes unpaid and someone's license is revoked, at subsequent stops they get multiple tickets with additional surcharges - no insurance, no registration, invalid license. She cited a study from New Jersey, which is one of the only states with a similar program, finding that,  after losing their licenses, 66% of surcharge-owing drivers lost their jobs.

Bottom line: At a time when 63 percent of Americans "don't have the savings to cover a $500 car repair or a $1,000 medical or dental bill," this cruel abomination of a program does far more harm than good, both to the public and the economy at large. It may have taken legislators more than a decade to realize it, but we appear to be approaching a consensus, at least in the Texas Senate, that something has to change.

MORE: Thanks to the Legislative Budget Board for posting their presentation to the committee here.

Jailing the mentally ill

From the Hogg Foundation, see a Houston Chronicle column (Jan. 18) titled, "Texas, stop treating mental illness like it's a crime."
Without question, some people with mental illness need to be incarcerated. But for low-level nonviolent offenders, we should look to measures that can divert people from jails and into community-based mental health treatment programs.

The sequential-intercept model is a good example and highlights how this process of diversion can happen at every point along the criminal justice continuum - from the moment the 911 call is placed all the way to re-entry into the community after incarceration.

What's required are common-sense reforms such as targeted training for police and 911 dispatchers, screening for behavioral health conditions at the early stages of the process, and improved coordination between the justice system and social service agencies. For example, re-entry peer support, in which a recently released person is paired with a trained mentor who's been through the same experience, has been tested in Pennsylvania with promising results. The Texas Legislature approved up to $1 million in funding last session for two pilot sites. Scaling of such a program, if the pilots prove successful, could make an enormous difference.

Another good example is the improved protocol for 911 dispatchers in Houston, which requires that all callers be asked if their call involves a mental-health issue. Callers who say yes are routed to special crisis counselors who work out of the police department and can often deal appropriately with a situation without even bringing law enforcement into it.

We should take these kinds of steps because it's not only the right thing to do, the time is right. The evidence base for diversion programs has matured to the point where we can have confidence that the money will be well-spent. Law enforcement officials across the country support such measures. And advocates, experts and policymakers are recognizing that systemic change is needed to address systemic problems. It's time for more Texas lawmakers to get on board. 
Meanwhile, the SA Express News published a column (Jan. 22) by Sheriff Susan Parmerleau touting Bexar County's much-admired mental health diversion program, which has garnered national praise and generated impressive results:
The results have been remarkable. In 2009, the 15 deputies assigned to our mental health unit received crisis intervention training, which teaches them how to recognize someone in a mental health crisis and how to de-escalate the situation. Prior to 2009, our mental health deputies had to use physical force, on average, 50 times a year taking those with mental health issues into custody. Since that time, in more than six years, force has only had to be used three times. The difference between 300 times and three times is dramatic.

Since this program was started, more than 20,000 people with serious mental illness have been identified and diverted from jail into treatment. And the program has contributed significantly to resolving the problem of overcrowding in the jail.

Bexar County’s improvements in responding to people in crisis have also led to significant savings by reducing incarceration and emergency room use. In the past five years, the jail diversion program has saved Bexar County more than $50 million. This has been achieved through wise investments in community mental health services, and hiring more professionals to provide treatment. It has also succeeded by focusing resources on rehabilitation, housing and employment assistance. ...
Jails have become de facto mental institutions, and that has to change. As we work together as a community, we can provide those with mental illness the help they need. Those suffering with mental illness need treatment programs, not jail cells.
Finally, UT-Austin academic William Kelly offered up an interesting critique of the mens rea debate going on at the federal level, arguing that the real mens rea issues in the criminal justice system relate to mental illness:
Today, 40 percent of individuals in the U.S. criminal justice system (federal and state) have a diagnosable mental illness. Sixty percent of inmates in the nation’s prisons have experienced at least one traumatic brain injury. Nearly 80 percent of justice-involved individuals have a substance abuse problem.  The prevalence in the justice system of individuals with intellectual disabilities is three to five times what it is in the general population. There are substantial numbers of individuals in the justice system with neurodevelopmental and neurocognitive deficits and impairments.

Moreover, there’s overwhelming evidence that many individuals with mental illness, addiction, neurodevelopmental deficiencies, and intellectual deficits lack the ability to form intent as it is defined in the law.  How many lack this ability we don’t really know, because we rarely inquire about intent. But the statistics cited above should raise serious questions about how we go about the business of criminal justice in the U.S.

In the vast majority of state and federal criminal convictions, the government rarely is required to prove intent. That’s because the vast majority of criminal indictments (roughly 95 percent) are resolved through a plea agreement.  If the offender agrees to the terms of the agreement, it’s essentially a done deal. That puts prosecutors in charge of sorting out who is criminally responsible and who is not. At the end of the day, the vast majority are held responsible.

Mens rea is supposed to serve as a gatekeeper at the front door of the justice system, separating innocent from criminal behavior. The reality is that criminal intent is just not much of an issue under current criminal procedure. That in turn has significantly contributed to our incarceration problem by facilitating the punishment of more and more individuals.
It has also contributed to our recidivism problem.

When we punish mentally ill, addicted, intellectually disadvantaged and/or neurocognitively impaired individuals, we tend to return them to the free world in worse shape than when they came in. This is simply more grease for the revolving door.

Wednesday, January 27, 2016

Court of Criminal Appeals judges call out colleagues for judicial activism on TX junk science writ

Court of Criminal Appeals Judge Elsa Alcala sounds hopping mad. She lambasted several of her fellow jurists on Texas' high criminal court for an extreme brand of judicial activism which "will, for a very long time, leave an indelible stain on this Court's reputation for providing a fair forum for all litigants." The Rick-Perry appointee chastised her colleagues in no uncertain terms: "This Court's judicial decisions should not give the appearance of indecision or manipulation for the achievement of a desired result." Ouch!

Judge David Newell wasn't quite as harsh, but still scolded his colleagues for their outcome-oriented judicial approach: "We are not empowered to substitute what we believe is right or fair for what the Legislature has written, even if the statute seems unwise or unfair,"  he insisted. "Our job is to do our best to discover the Legislature's intent, not substitute our policy preferences for the will of the people as expressed through their elected representatives."

Judge Bert Richardson offered a concurrence, joined by Cheryl Johnson, declaring he is "baffled by the decision made by the court today."

The topic: Texas' "junk science writ," first passed in 2013 and amended in 2015 by the Legislature to codify the CCA's interpretation of the new statute on first impression. Unfortunately, three of the judges responsible for that first impression have since left the court, leaving a majority of judges who did not agree with either the court's precedent or the Legislature's codification of that ruling.

Rather than interpret Ex Parte Neal Hampton Robbins under the new statute passed last year, the court ruled that the motion for rehearing was "improvidently granted," thus allowing case law to revert to the 2013 statute before it was amended. But Alacala found that move disingenuous, calling out Judges Sharon Keller, Barbara Hervey, and Michael Keasler by name in a rare display of overt judicial acrimony:
The three dissenting judges in Robbins II maintain their former dissenting opinions that relief should not have been granted to applicants under the 2013 statute, but they now appear to vote in a manner that has the effect of granting relief to applicant. Though their vote ends up at the right place in that the correct result occurs, it is a day late and a dollar short. Or, rather, it is about a year or more late and it is significantly short because the dissenters in Robbins II appear to maintain their view that similarly situated defendants are not entitled to habeas relief under the new-science statute. What is going on here? I do not envy the position of future litigants who must try to decipher this Court's position on when relief is warranted under the new-science statute. Because of the strategic maneuvering that has plagued this case now for more than a year, the answer to that question is entirely unclear. 
So bottom line, Neal Robbins gets relief but the court did so in a way that does not extend the same protection to others. As Judge Newell opined, though, that's "a decision that the Legislature gets to make, not this Court." And it leaves the law surrounding the topic tenuous and unsettled.

Finally, for any tea leaf readers out there, though Judge Kevin Yeary was silent in this exchange, the vote patterns described indicate that he sided in this debate with Keller, Hervey and Keasler, providing further evidence that he's voting fairly consistently with the faction of the court which reflexively rules for the government in nearly every case. It's early in his tenure, yet, but so far your correspondent is not encouraged.

To understand the history and politics of the case, read Alcala's opinion. To understand the underlying legalities, read Richardson's. And for a conservative advocate for judicial restraint who seemed genuinely puzzled why his Republican colleagues would ignore the law and substitute their own views for the Legislature's, read David Newell's offering.

MORE: See initial coverage from the Texas Tribune.

See prior, related Grits posts:

EFF: License plate readers shift traffic enforcement priorities to debt collection

The Electronic Frontier Foundation yesterday offered Grits an "I told you so" regarding legislation passed last year allowing Texas cops to become debt collectors, accepting credit cards for traffic ticket debt at traffic stops. I'd much rather have been wrong.

Grits had suggested that Rep. Allen Fletcher's HB 121, combined with automatic license plate reader technology, could allow police to “cherry pick drivers with outstanding warrants instead of looking for current, real-time traffic violations.”

Wrote EFF's Dave Maass (formerly of the San Antonio Current):
As it turns out, contracts between between Vigilant and Guadalupe County and the City of Kyle in Texas reveal that Henson was right to worry.

The “warrant redemption” program works like this. The agency gets no-cost license plate readers as well as free access to LEARN-NVLS, the ALPR data system Vigilant says contains more than 2.8-billion plate scans and is growing by more than 70 million scans a month. This also includes a wide variety of analytical and predictive software tools.

The government agency in turn gives Vigilant access to information about all its outstanding court fees, which the company then turns into a hot list to feed into the free ALPR systems. As police cars patrol the city, they ping on license plates associated with the fees. The officer then pulls the driver over and offers them a devil’s bargain: go to jail, or pay the original fine with an extra 25% processing fee tacked on, all of which goes to Vigilant.1 In other words, the driver is paying Vigilant to provide the local police with the technology used to identify and then detain the driver. If the ALPR pings on a parked car, the officer can get out and leave a note to visit Vigilant’s payment website.

But Vigilant isn’t just compensated with motorists’ cash. The law enforcement agencies are also using the privacy of everyday drivers as currency.
From Vigilant Solutions contract with City of Kyle
Buried in the fine print of the contract with Vigilant is a clause that says the company also get to keep a copy of all the license-plate data collected by the agency, even after the contract ends. According the company's usage and privacy policy, Vigilant “retains LPR data as long as it has commercial value.” Vigilant can sell or license that information to other law enforcement bodies, and potentially private companies such as insurance firms and repossession agencies.

In early December 2015, Vigilant issued a press release bragging that Guadalupe County had used the systems to collect on more than 4,500 warrants between April and December 2015. In January 2016, the City of Kyle signed an identical deal with Vigilant. Soon after, Guadalupe County upgraded the contract to allow Vigilant to dispatch its own contractors to collect on capias warrants.
So really, I wasn't cynical enough. Grits certainly didn't anticipate that license plate reader vendors would give away their systems in exchange for a 25 percent surcharge. EFF concluded that:
the system raises a whole host of problems:
  • It turns police into debt collectors, who have to keep swiping credit cards to keep the free equipment.
  • It turns police into data miners, who use the privacy of local drivers as currency.
  • It not-so-subtly shifts police priorities from responding to calls and traffic violations to responding to a computer’s instructions.
  • Policy makers and the public are unable to effectively evaluate the technology since the contract prohibits police from speaking honestly and openly about the program.
  • The model relies on debt: there’s no incentive for criminal justice leaders to work with the community to reduce the number of capias warrants, since that could result in losing the equipment.
  • People who have committed no crimes whatsoever have their driving patterns uploaded into a private system and no opportunity to control or watchdog how that data is disseminated. 
There was a time where companies like Vigilant marketed ALPR technology as a way to save kidnapped children, recover stolen cars, and catch violent criminals. But as we’ve long warned, ALPRs in fact are being deployed for far more questionable practices.

The Texas public should be outraged at the terrible deals their representatives are signing with this particular surveillance contractor, and the legislature should reexamine the unintended consequences of the law they passed last year.
RELATED: Bud Kennedy at the Star-Telegram offered up a column criticizing the shift in priorities:
Lawmakers originally said the system would save officers time — true — but justice reformers were concerned that collections would become the focus over traffic patrol.

EFF warned that “To Protect and Serve” would become “To Stop and Swipe.”

Read more here: http://www.star-telegram.com/opinion/opn-columns-blogs/bud-kennedy/article56747488.html#storylink=cpy