New sentencing hearing ordered based on junk sex-offender 'science'

Good news out of the Texas Supreme Court today, if not all one might hope from them. They ordered a new sentencing hearing for a man who's spent 13 years in prison on a 20 year sentence, granting resentencing not because he's innocent and the victim says the offense never happened (which happens to be the case), but because an expert at his trial based his opinions about future dangerousness on an instrument called the "Abel Assessment" whose ability to distinguish pedophiles from “nonoffenders was not significantly better than chance." Via the Austin Chronicle:

A unanimous Texas Supreme Court ruled today that Michael Arena, sent to prison for an alleged sexual assault that even the victim says never happened – is entitled to a new sentencing hearing.

Arena and his brother, John, were each accused as teens of sexually assaulting their young cousin, Stephanie Arena, when the girl was just seven-years-old. Stephanie soon recanted, however, and has been adamant that she was coerced into accusing her cousins at the behest of her mother, who was in a bitter divorce from her husband and had illegally removed Stephanie and her brother from Texas in violation of a court order. You can read the entire back story here.

According to the Austin Statesman:

The court ruled that Arena deserves a new sentencing trial because of false testimony by a psychologist, who during Arena’s 1999 trial labeled him a pedophile who was likely to strike again.

The psychologist, Fred Willoughby, based his conclusion on a test that required the then-16-year-old to click through images of swimsuit-clad people of various ages while the computer secretly measured how long he viewed each photo.

According to the unanimous opinion, written by Justice Eva Guzman, Willoughby testified that the test had an 85 percent accuracy rate. In reality, it was 65 percent.

Willoughby also misstated the scientific support for the test, saying independent studies had verified its effectiveness (none had) and quoting a Brigham Young University study as establishing its accuracy. Instead, the study raised serious questions about the test, noting that its ability to distinguish pedophiles from “nonoffenders was not significantly better than chance.”

Had he testified truthfully, Guzman wrote, “the trial court would have excluded Willoughby’s testimony.”

RELATED: 'Inmate challenges pedophilia test as junk science.'

Why O. Henry? Would pushing Jack Johnson pardon have more 'symbolic heft'?

The first bit of publicity for the Pardon O. Henry! campaign at pardonohenry.org is starting to roll in. Jordan Smith at the Austin Chronicle has a short item, and MSNBC's Kari Huus has a longer piece, comparing this campaign to efforts to pardon another great Texan, Jack Johnson, whose posthumous clemency application was rejected by President Obama in 2009:

In that effort, spearheaded by Sen. John McCain, R-Ariz., and Rep. Peter King, R-N.Y., the subject was black heavyweight boxer Jack Johnson, who was imprisoned nearly a century ago for violation of the Mann Act, which made it illegal to transport women across state lines for "immoral purposes." The case was seen as punishment for Johnson's unapologetic relationships with white women, and a warning to other black men.

Ms. Huus (who btw has done good reporting on clemency issues), thinks that Jack Johnson's cause would be "arguably one with more symbolic heft." Grits, though, must respectfully disagree.

For starters, President Obama has already turned down Johnson's pardon, and as much as I supported that effort, which was notably led by GOP Congressional leaders, Grits doesn't expect the President to flip flop. But there's another reason I think championing O. Henry's pardon carries just as much if not more "symbolic heft" when it comes to critiquing the president's parsimonious pardon policies, and I articulated that view this morning over at the Pardon O. Henry! blog:

Why O. Henry?

The short answer is that this campaign didn't choose William Porter, President Barack Obama did (or more likely one of his speech writers). When the President quoted the great writer in the midst of the ceremonial pardoning of a turkey last Thanksgiving, it brought the absurdity of 21st-century clemency into crystal-clear perspective: The bird may be pardoned but the man may not be forgiven, even if he was innocent, indeed even as his prose is purloined.

Just as the pardoned bird was symbolic, so is centering a campaign for expanded use of presidential pardon power around a writer honored by the President, but from a clemency perspective only in the breach.

That's why, to me, a campaign for Porter's posthumous pardon has plenty of "symbolic heft," though I suppose it depends on precisely what one is trying to symbolize. Sign the petition. Tell Barack Obama to "Pardon O. Henry!" and reinvigorate presidential clemency powers.

Grits launches petition to clear Texan writer: Pardonohenry.org

After Barack Obama last November quoted the renowned short story writer O. Henry while pardoning a turkey, even though the writer's own posthumous pardon requests had been denied, Grits just couldn't help myself: Readers may recall I authored a polemic titled, "Eat the turkey, pardon O. Henry!," and shortly thereafter, unbeknownst to all but a few, I purchased the URL domains for pardonohenry.org, com, and net.

Today Grits is pleased to announce the launch of the pardonohenry.org website, the main function of which is to host an online petition asking President Barack Obama to grant a posthumous pardon to the great short story writer. Prof. P.S. Ruckman, who blogs at Pardon Power, is collaborating, taking the lead to prepare the application.

O. Henry, born William S. Porter, may or may not have committed the crime of embezzlement for which he was convicted in Austin in 1897. He claimed innocence throughout, but he also jumped bail and fled to Honduras, returning to face trial and imprisonment in order to care for his dying wife. In the end, his guilt or innocence probably doesn't matter. He produced among the best short stories in American literature, some while incarcerated. Here's the full text of the petition:

To President Obama and the Office of the Pardon Attorney, Department of Justice:

In this 150th year after William S. Porter's birth, I ask that you posthumously pardon him and in so doing honor this great American writer better known by his pen name: O. Henry.

O. Henry's works are among America's great contributions to English language literature, and he is widely credited with reinventing the short story. His writings were probably required reading at some point in your education. The nation's most prestigious short-story award is the PEN/O. Henry Prize. This year the US Postal Service will issue a stamp featuring his image. It's past time for the writer's recognition by the President as well in the form of a posthumous pardon.

Though you quoted O. Henry last year while pardoning a turkey, pardons are not mere jokes or symbols, nor should they be reserved for a turkey or two before Thanksgiving. They are a critical constitutional function that returns fairness and grace to a criminal justice system sorely short of those elements.

O. Henry always claimed innocence, but pardons are not just for the innocent. Alexander Hamilton in Federalist Paper 74 (1788) wrote that, "The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." As executive clemency has withered in use, America has seen the criminal justice system's cruel countenance blossom in full -- prisons overflowing with petty offenders, families broken, innocent people released after decades thanks to DNA tests that remain difficult to obtain.

Pardoning William S. Porter would signal that you understand and value the true purpose of executive clemency powers in the justice system -- not just as a symbol but also a remedy for both actual innocence and "unfortunate guilt," one that provides a healing salve even for century-old wounds.

Please sign the petition and promote it via social media, email lists, word of mouth or any other means at your disposal. The URL is easy to remember: Pardonohenry.org. We'll be adding more content as we go along, but for now there's also a blog at the site that includes some original items not seen on Grits, including:

• Why a Pardon O. Henry! campaign? 
• President should pardon O. Henry as postal service profits from him 
• Children attend schools named after unpardoned felon since 1902
• Is it possible O. Henry was actually innocent?
• 'Criminous Nonsense from O. Henry'
• O. Henry on O. Henry: The author's only interview, 1909
  
• 'Work a little history into your travels on the Lone Star literary tour'
• Exhibit: 'O. Henry: A Short Story'
  
• Pardon me, Louisiana: Bobby Jindal's chincy clemency record

Though as the petition says, it doesn't really matter, Grits is now fairly satisfied that William S. Porter was actually a victim of a false conviction lo these 115 years ago. The writer was depressed following the death of his wife and barely participated in his own defense, though he always insisted on his innocence. But the late Texas Third Court of Appeals Justice Trueman O'Quinn, an avid fan and collector of all things O. Henry, also believed Porter innocent and spent years unsuccessfully seeking his posthumous pardon. (After that, it should be mentioned, the now-departed curator at the O. Henry Museum in Austin filed another application during the George W. Bush Administration.) In a chapter O'Quinn authored in a book about the writer, Time to Write, he recorded that the prosecutor in Porter's case, Duval West (who went on to be appointed a federal judge in the Western District of Texas by Woodrow Wilson), years later 'told a reporter that he believed Will Porter was the victim of the banking practices of the day and innocent of intentional misappropriation of funds.'"

Even 100 years ago prosecutors weren't keen on admitting mistakes, so from the perspective of a pardon request that's a big deal. Both Trueman O'Quinn and Duval West, two of the preeminent Texas barristers of their respective generations, more closely examined the evidence than Grits ever will and both concluded Porter was likely innocent. Combine that with fatal flaws in the indictment, which claimed the alleged offenses occurred months after he'd left the bank and moved to Houston to write a column for the Post, and to me, absolutely Will Porter deserves pardon based on innocence, if not also for his contribution to American letters during and after his incarceration.

Innocent or not, "Why do this?," I'm inevitably asked. This project serves numerous goals for Grits. First and foremost, it amuses me, which some days is all it takes. Second, it highlights a bipartisan consensus among politicos and the media that has diminished clemency in recent decades, a trend which, in this age of mass incarceration, to me is the opposite of what's needed. And third, it honors and celebrates a legendary Texan writer and publisher whose Austin weekly, The Rolling Stone (no, not that one, Porter beat 'em to it), was the direct heir to William Brann's Iconoclast, a Texas journalism legend and the state's first, no-holds barred muckraking publication (Porter launched his magazine by buying out Brann at a low point for $250). At its zenith, Porter's Rolling Stone supposedly had 1,000 subscribers at a time when Austin had 11,000 residents, even if it always seemed to teeter on the brink of bankruptcy.

But there's one other, more fundamental reason for launching this project at this particular point in time: Grits should announce that just this week papers were filed to create the "Grits for Breakfast Action Fund," a Texas nonprofit for which we intend to seek 501c(4) status. (That means soon, but not quite yet, Paypal donations won't deduct sales tax: Will notify folks when; many have asked.) My hope is that this entity will become a vehicle to influence policy and legislation here in Texas, and aim to build up web organizing infrastructure headed into the session toward that end. The Pardon O. Henry! campaign provides an opportunity to get some of these e-activism tools set up and take them out for a test run on a project with bit more of a leisurely pace than anything that occurs at the Texas Legislature.

To summarize, this project was designed to be fun, to address a serious subject in (one hopes) a creative way, and to pay homage to my own roots as a Texan writer. But it also aims to lay the groundwork for future web activism promoting a wider array of criminal justice reforms. So go sign the petition, poke around the site, tell your friends, and help promote a national discussion on the decline of clemency and the resulting redaction of mercy from the American criminal justice system. And for heaven's sake smile while you're doing it, as though you've just savored one those classic, O. Henry twist endings.

MORE: See a press release announcing the petition drive.

Texas parole rates rise since new year

Yesterday, Mike Ward at the Austin Statesman had a story on recently rising parole rates ("Parole rates surge to avoid unsupervised released," May 16, based on trends reported on Grits in April. His story opens:

Texas' parole rate for convicted felons has reached new highs in recent months, with the approval rate topping 40 percent this spring after hovering in the high 20s for several years.

The parole rate for violent sex offenders reached nearly 60 percent in March.

Officials say the higher parole rate is partly due to larger numbers of felons imprisoned in the past 20 years who are now reaching the end of their sentences, some meted out during the three-strikes-and-you're-out era of tough-on-crime laws enacted during the 1990s.

Officials are putting more of these convicts on parole to keep them under supervision and in treatment after they get out of prison, rather than have them walk out unsupervised.

The new numbers, obtained Tuesday by the American-Statesman, showed Texas' overall parole approval rates are the highest since September 2001, topping 40 percent in both February and March. The approval rate for April was just under 39 percent, the statistics show.

Here's a accompanying graphic demonstrating the short-term rise, which could be just a demographic blip:

Mike and I were notified of this story by the same source in an email last month, but he's added value to the subject by gathering more back-months of data and interviewing government officials and advocates who speculated on reasons for the recent rise (some of which was presaged in Grits' essay). It should be emphasized, though, that a few months increase doesn't necessarily indicate a long-term trend and there could be many reasons, some perfectly mundane, for the short-term spike.

The numbers, though, do give rise to cautious optimism. Two suggested reasons would likely improve public safety: The decision to release long-term inmates before their sentence is up so they'll be under supervision when they leave, and the Lege funding drug and alcohol treatment in prison, which in turn lets the parole board can condition release on completing it.

This must be welcome news to TDCJ bean counters fretting over budgets, who presently are straining to cover guard overtime and prisoner health costs under their reduced budget. Releasing older inmates serving long sentences, in particular, helps a ton with health care cots.

Texas' largest county jails have depopulated rapidly in the last couple of years. If this short-term parole trend elongates and the Lege continues to support front-end diversion programs, perhaps in the near future Texas will actually witness a smaller prison population as well.

Law review: Texas executed wrong Carlos based on biasing eyewitness procedures

A new e-book published by a law journal argues that Texas probably executed an innocent man in 1989, and predictably the potential cause was reliance on a single, shaky eyewitness to obtain a conviction after police allegedly picked up the wrong "Carlos." According to the Houston Chronicle:

Accounts of the crime, the investigation and DeLuna's prosecution were presented in a 400-page article published Tuesday in the Columbia Human Rights Law Review. Columbia University Law School authors argue that the crime actually was committed by Carlos Hernandez, a DeLuna acquaintance with a history of convenience store robberies. Hernandez, the article says, boasted of killing the store clerk

DeLuna was executed by injection in 1989. Hernandez died in prison, convicted of a knife attack on a female acquaintance, in 1999.

Of four people who saw events connected to the crime, only one, car salesman Kevan Baker, saw Lopez struggle with her assailant, the journal article says. Baker initially described a man who did not resemble DeLuna but changed his story after police brought DeLuna to the store.

Baker later told researchers he was only 70 percent sure of his identification, the journal says. Had police not told him DeLuna had been apprehended nearby, he would have been only 50 percent certain, he said.

A retired Corpus Christi police detective said confidential informants told him at the time they'd arrested the wrong "Carlos" for the crime, but after the eyewitness picked out DeLuna he dropped the issue because it was somebody else's case.

The Chronicle pointed out that new procedures Texas law-enforcement agencies must have in place by September 1 may mitigate such questionable IDs going forward, which is true at least to the extent departments adopt best practices enshrined in the recently developed model policy or something close to it:

Legislative sponsors of a law tightening procedures for police lineups on Tuesday faulted Corpus Christi police for allowing eyewitnesses in a 1983 convenience store robbery-murder to identify the suspect as he sat handcuffed in the back seat of a squad car.

State Sen.  Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine, stopped short of claiming Texas wrongfully executed suspect Carlos DeLuna for the February 1983 murder of store clerk Wanda Lopez.

Gallego, however, said the way Corpus Christi police handled the suspect's identification was a "textbook example" of why the system needs to be reformed.

"What appears to be very faulty eyewitness identification was the main evidence used to reach a conviction in this case," Ellis said in an email.

"... The chief witness appears to have gone back and forth on how certain he was that Mr. DeLuna was the culprit. You cannot have this level of uncertainty in death penalty cases."

The Law Enforcement Management Institute of Texas (LEMIT) at Sam Houston State which developed the model policy is currently doing train the trainer seminars to help departments prepare for the transition.

One of the LEMIT policy provisions would require departments to record eyewitness identification sessions using either video or audio, or else record the reason why that couldn't be done. And the model policy instructs officers not to share information about the suspect with a witness that might bias their memory, as was done here. Those procedures certainly may have made a difference in DeLuna's case. It's doubtful even a Texas jury in 1983 would have been so bloodhirsty as to send a man to execution based on a witness who was "50 percent certain." Indeed, without having read the massive document, on the surface there seem to be (at least) two issues here: The failure of identification procedures and a possible Brady violation if prosecutors failed to inform the defense of the witness' waffling.

In the Bible, Moses, Jesus and the Apostle Paul all iterated that at least "two or three witnesses" were necessary to accuse someone under biblical law. DeLuna's example shows why that cautionary provision is probably still a good idea. Particularly when identifying strangers, eyewitnesses can be notoriously unreliable.

DeLuna joins a notable list of "probably nots" on Texas' executed list, notes the Chronicle: "Innocence Project co-director Barry Scheck hailed the journal article as a 'terrific job,' saying that the DeLuna case will join those of Cameron Willingham, Claude Jones and Ruben Cantu in forming a stern indictment of the Texas death penalty." Grits does not share Scheck's sanguine belief that demonstrating an innocent person has been executed would result in death-penalty abolition. Grimly, the public is willing to live with a few mistakes, but the list of potential, even probable errors is growing.

Pardons by President: Clemency eclipsed in 21st century

On Monday, Grits lamented that "There's a firm bipartisan consensus that the constitutional clemency power has become an anachronism barely worth considering." Via Prof. P.S. Ruckman at Pardon Power, here's hard evidence of that trend at the federal level:

Juveniles certified as adults often held in solitary confinement

I'm late to the game on this one so I'll leave the description of this latest report (pdf) by Michele Deitch and her LBJ School collaborators to Solitary Watch, which discusses the report at some length:

A new report produced by researchers at the University of Texas’s Lyndon B. Johnson School of Public Affairs describes conditions faced by children who are “certified” for transfer to adult criminal justice system. Many of these juveniles are housed in adult jails in Texas while they await trial. The report finds that the majority of youth placed in adult jails are housed in solitary confinement, most with just one hour of out-of-cell time per day. While they are placed in isolation for their own protection, they live in conditions that mirror punitive segregation, and often remain there for months or even years.

 See the press release announcing the report and related coverage:

• Houston Chronicle: Ruling puts Harris County juvenile offenders housing in limbo
• Austin Statesman: UT study highlights risks of putting teens in adult jails
• Texas Tribune: Study: Juveniles held in jails are often isolated
• ACLU National Prison Project: 16 and Solitary: Texas jails isolate children
• Campaign for Youth Justice: Letter from report author
• DA Confidential: Mark Pryor describes his role as a prosecutor seeking certification for a juvenile in a Travis County homicide.

'Right-Sizing Texas Corrections'

If you, like Grits, couldn't make it to the Texas Public Policy Foundation's policy briefing last week on "Right-Sizing Texas Corrections," you'll be glad to learn they've posted an audio file of the event online. Go here to listen.

Violence at youth prisons blamed on lax discipline, structural problems ignored

Mike Ward at the Austin Statesman on Sunday offered a worm's-eye view of violence at youth prisons from the perspective of juvenile correctional officers (JCOs), many of whom, as anyone who reads Grits comments knows, blame increased violence on the head of the Texas Juvenile Justice Department, Cherie Townsend and lenient security policies on TYC campuses ("Workers trace youth lockup's problems to soft discipline," May 13).

Voicing the views of a dozen employees, Ward pinned the source of current problems to the period "after 2009, with a new management team in place at agency headquarters in Austin, some of the more punitive aspects of life inside the lockups were relaxed." What that ignores, though, is that many of those "punitive aspects" - particularly the first-resort use of pepper spray, which certainly boosted JCO's on-the-ground power over youth - were ended because of successful lawsuits. Moreover, the lawsuits and changes that ended use of many adult corrections practices among juveniles were largely spawned from reporting from people like Mike Ward, for example in a 2007 article voicing extensive criticisms of pepper spray use in juvenile facilities.

Further, the 1984 Morales v. Turman settlement (TYC's version of the Ruiz case) remains binding on TJJD and restricts a variety of the more punitive measures suggested mostly by folks from the adult prison system over the last five years.

In the past, Grits has argued that framing the debate around use of force levels or harsher discipline misstates the problem. If TYC's history is any indication (I haven't followed juvie stuff nearly as closely in the last year or so), the Juvenile Justice Department suffers from absurdly high turnover among frontline staff, who aren't paid very handsomely and must live in places like Giddings or Brownwood, which makes it especially difficult to staff specialized treatment positions. So TJJD isn't getting folks, say, with educational backgrounds in juvenile development, they're essentially competing with Walmart for employees. A report by the Sunset Commission in 2010 found a 25% turnover rate among staff at youth prisons, down from a high of 48% turnover in 2007, but still among the highest of all state agencies.

And while last I heard, TJJD has said it's meeting its 12-1 staffing ratio, the changing demographics of youth prisoners (less dangerous offenders diverted, more dangerous offenders concentrated into fewer units) may mean even that number is too high. Grits asked back in 2007, "Why not make youth prisons safer by staffing them properly? The unspoken answer: Because staff cost money, and by comparison pepper spray is cheap." Because I've had to quit tracking the agency closely, I can't say if that's a causal factor now, but it sure was when the identical complaints were aired in 2007.

Either way, these safety issues are really symptoms masking a more fundamental, underlying disease: A frontline staff neither trained, experienced, nor numerous enough to manage facilities which were designed along adult models rather than for the specific needs of youth.

The best solution would be structural, not just punitive: The Governor's blue-ribbon panel on reforming TYC recommended abolishing larger youth prisons like the one in Giddings in order to end a "punishment culture" that permeated the agency. The complaints aired by Ward IMO amount to revanchist nostalgia from disgruntled adherents to that "punishment culture," not sound advice for how state leaders should operate the system.

The blue ribbon commission recommended shifting away from larger adult-model facilities entirely and opening smaller facilities closer to urban areas so youth can be more closely supervised and have more interaction with their families. But nobody wanted to spend more money on youth corrections, and in fact legislative leaders exerted tremendous pressure to spend less. So rather than shift to smaller facilities as recommended, the Lege paid for a little remodeling and new security cameras, but stuck with the large-facility model. With the same large facilities populated by a more concentrated group of more serious offenders, however, the shortcomings of that approach were only exacerbated.

That decision, far more than any recent disempowerment of JCOs, explains why Texas youth prison problems were never truly fixed: The Legislature sought the best advice from the top minds in the juvenile justice field, got it, then ignored it because it would cost money. Now they wonder why things didn't turn out well and are looking for someone to blame. Cherie Townsend may not be perfect, no one is, but some of her legislative critics should find mirrors if they want to disparage those truly responsible.

How Louisiana became the nation's prison capital

Check out an extended series from the New Orleans Times-Picayune titled, "Louisiana Incarcerated: How we built the nation's prison capital," which has its own web portal. A few years ago Texas competed with Louisiana for the highest incarceration rate, but ours has leveled off - even slightly declined - while theirs continues to climb. Here's a graphic from the series suggesting four reasons why:

Obama the Merciless: Is DOJ to blame?

The Washington Post has a compelling story about a man's quest for a federal sentence commutation from the Bush and Obama Administrations and the biased interpretations, flawed through omission and understatement, given the President by the Office of the Pardon Attorney at the US Department of Justice. It's a substantial story so those interested should read the whole thing, or here's a brief summary from P.S. Ruckman at Pardon Power.

Grits' immediate interest lies in reported criticisms of the internal workings of the Pardon Attorneys office, including calls to outright abolish it. In the case of Clarence Aaron highlighted in the story:

That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests.

Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron’s application. In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron’s immediate commutation.

But it's not must one individual thwarting more active clemency recommendations, some argue, but an institutional, prosecutorial anti-clemency bias from prosecutors at the Justice Department:

Last week, the American Constitution Society sponsored a panel discussion on Capitol Hill devoted to the pardon issue. President Obama’s former White House counsel Gregory B. Craig said the president could issue an executive order eliminating the pardon office.

“We cannot improve or strengthen the exercise of this power without taking it out of the Department of Justice,” Craig said.

He advocated for a bipartisan review panel that would report directly to the president.

The number of pardons awarded has declined sharply in the past 30 years, as have commutations. Obama has rejected nearly 3,800 commutation requests from prisoners. He has approved one. Bush commuted the sentences of 11 people, turning down nearly 7,500 applicants.

A former pardon office lawyer said some applicants have been turned down “en masse” with little, if any, review, a claim the Justice Department disputes.

Here's an interesting tidbit: "Under Ronald Reagan and Bill Clinton, both two-term presidents, one applicant in 100 was successful. Under Bush, approvals fell to barely better than one in 1,000." Obama's record is even poorer.

Under Barack Obama's US Pardon Attorney Ronald Rodgers, paralegals began vetting cases instead of attorneys, and large batches of cases would allegedly be denied en masse with little review (though of course Rodgers insists the review was adequate):

Under Rodgers’s predecessors, staff lawyers reviewed each case, gathered pre-sentence and Bureau of Prisons progress reports and wrote recommendations based on their research.

“Some reports were shorter, just a paragraph or two,” said Margaret Love, who served as a pardon attorney from 1990 to 1997. “But there was always enough of a report that you could get an idea of what the basic facts and issues were.”

For the first 2¹/₂ years under Rodgers, however, most petitions were handled by paralegals, not staff attorneys, and recommended for denial in batches, said Samuel Morison, a lawyer who spent more than a decade in the pardons office before leaving in 2010 to work for the Defense Department. He said Rodgers instituted the change when there was a significant backlog.

“The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied,” Morison said.

The story of Clarence Aaron, who at 24 was "sentenced to three life terms for his role in a cocaine deal, even though it was his first criminal offense and he was not the buyer, seller or supplier of the drugs," is certainly troubling, but it mostly just affects him, his family and loved ones (and of course taxpayers footing the bill for his incarceration). Even more concerning are reported changes in institutional practices by President Obama's pardon attorney giving at best minimal consideration to the thousands of clemency requests they receive, ensuring there will be many more Clarence Aarons, most of whose cases won't be nearly so well publicized..

Mitt Romney's pardon record is even worse - he never once issued clemency to anybody when he was Governor of Massachusetts - so I don't expect this to become a campaign issue. It just doesn't cut along partisan lines. There's a firm bipartisan consensus that the constitutional clemency power has become an anachronism barely worth considering.

Grits finds that ironic. The history of the US presidency throughout the past century involved the accumulation of ever-greater power within the executive branch, much of it through regulatory infrastructure justified by constitutional theories that would leave the Framers' jaws agape. By contrast, clemency authority is an actual, named constitutional power of the presidency, not one assumed after the fact nor assigned by Congress or the judiciary. But this critical presidential power has faded to virtual irrelevance, even though Alexander Hamilton believed (see Federalist 74) "easy access" to clemency was essential to keep the justice system from becoming too "sanguinary and cruel."

Why is this the one area where presidents, especially this president, seem reluctant to exercise their constitutional authority at all, much less seek its expansion as in every other realm of their office? Is DOJ to blame?

MORE: P.S. Ruckman has posted the relevant documents in Clarence Aaron's case.

See prior, related Grits posts:

• Obama may have stingiest pardon record of any American president
• Obama the Merciless
• Eat the turkey, pardon O. Henry! President quotes Texan writer but won't pardon him
• Institutional prosecutorial bias limits federal pardon recommendations from DOJ
• Perry should expand clemency, trump Obama in Christmastime ritual

Two suggestions, one radical, one modest, on prosecutorial reform

I ran across two additional, suggested approaches to reduce prosecutorial misconduct: First, here's an interesting idea for prosecutorial reform: Separate conflicting prosecutorial functions.

No one likes to be inspected. Naturally, prosecutors facing trials will be tempted to mobilize the leverage that extra years of incarceration provide to avoid the inspection stage altogether by forcing pleas.

In  Missouri v. Frye the Court  took belated note of this fact, recognizing a right to counsel in plea bargaining in part  because “longer sentences exist on the books largely for bargaining purposes."

“This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial.” the Court continued.

Each year of incarceration that your prosecutor is now deploying to avoid trial inspection costs at least $40,000, and the money comes from the Corrections Commissioner’s budget, not from the prosecutor’s.

Each year in jail amounts to a $40,000 unfunded mandate, and it forces trade-offs in expenditures for education, for health, and for everything else. That isn’t the prosecutor’s problem: he has a blank check which buys as much leverage as he likes.

He can spend your money to avoid his trials.

The proposed "Swiftian" solution: To "divide American prosecutors into two separate and independent offices." The office responsible for trying cases would be dissociated from

an office of solicitors, who handle the misdemeanors, prepare the serious cases and determine how many years of incarceration the taxpayers will fund to punish, incapacitate, and rehabilitate each offender.

If they can dispose of a case for the price they’ve set, they will dispose of the case. If they can’t, they will pass it on to the second office, an office of barristers, who try the felony cases in court when they have to be tried.

For my part, if we're considering such radical reform, I might suggest instead (or perhaps in addition to) following the lead of the British Crown Prosecution Service, where attorneys may serve as prosecutors one day and defense lawyers the next. To me, the problem is not the prosecutorial function so much as an entrenched prosecutorial culture and mindset that leads to tunnel vision and politicized justice.

Second, a reader saw a past Grits post suggesting prosecutorial misconduct reforms including requiring judges to name prosecutors in orders when there are Brady violations or other misconduct. This reader sensibly suggested pursuing a bill that would "Require the clerk - not the judges -to insert on all orders the names and State Bar Card Numbers of all prosecutors and defense lawyers." Our friend continued, "In civil cases, the lawyer who drafts an agreed motion and/or agreed order does this anyway, so it won't be a stranger to anyone in any county clerks' office or district clerks' office." Excellent point.

Indigent defense short-shrifted in Byrne/JAG grants, says Constitution Project

Could/should Texas be spending more federal grant dollars to support indigent defense? And should the Governor's Criminal Justice Division continue to forbid using Texas' deepest well of federal criminal-justice grant funds for that purpose?

A press release Grits received via email from the Constitution Project argues that a greater proportion of federal grant money aimed at criminal justice should go toward providing lawyers for the poor: 

WASHINGTON, D.C. -- Almost none the money the federal government provides to state and local governments for justice system improvements goes to helping to defend poor people, a new study shows. The report bears out claims that supporters of indigent defense have made for years that there is an enormous disparity between governmental financial support for prosecutors and defenders.

According to a Government Accountability Office (GAO) report released yesterday, almost half the money block granted to the states under the Byrne Justice Assistance Grant Program grants goes to fund law enforcement and prosecution activities, with less than one percent being used for public defenders or other private lawyers appointed to assist those who cannot afford legal representation on their own.

"Despite repeated calls from the legal community for improved funding for indigent defense, and even though Attorney General Holder himself has declared a 'crisis' in the right to counsel for the poor, this study shows that state and local governments continue to give justice for the needy short shrift when they divide up the federal dollars they receive," said Virginia Sloan, president of The Constitution Project (TCP), a bipartisan legal watchdog group.

The GAO report says that the Department of Justice (DOJ) distributed more than $500 million to state and local government under the Byrne JAG program in five of the six fiscal years between 2005 and 2010. Less than one-tenth of one percent of the money sent to local governments, and only seven-tenths of one percent of the money allocated to the states, was spent on indigent legal defense, the report shows. In contrast, 54% of the funds DOJ sent to localities, and 38% of the funds sent to states, were spent on law enforcement and prosecution activities.

The report indicates that among the reasons that indigent defenders do not receive more funding is that, most of the time, they are not part of the decision-making process that disperses the funds, and many are not even aware they are eligible to apply for them. Nearly two-thirds of the public defender offices responding to a GAO survey said they did not know that they were eligible for federal funding, and 31% said they lacked the knowledge or the personnel to complete the application process.

In responding to the GAO report, the DOJ indicated it was taking steps to make public defenders more aware of their eligibility. ...

TCP released a comprehensive bipartisan report on problems in the indigent defense system, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel, in 2009.

A copy of the GAO report is available online.

Regrettably, GAO's main recommendation is pretty weak:

GAO recommends that DOJ increase grantees’ awareness that funding can be allocated for indigent defense and collect data on such funding.

DOJ concurred with the recommendations.

The feds could and should do more to balance the equation than just make grantees "aware." Whenever the feds specify that a proportion of grant money be spent on indigent defense, they do it. From GAO:

The Department of Justice (DOJ) administered 13 grant programs from fiscal years 2005 through 2010 that recipients could use to support indigent defense, 4 of which required recipients to use all or part of the funding for this purpose. DOJ also provides training to indigent defense providers, among other things.

From fiscal years 2005 through 2010, recipients of the 4 grants that required spending for indigent defense allocated or planned to use $13.3 million out of $21.2 million in current dollars for indigent defense.

However, among the 9 grants that did not require allocations or awards for indigent defense, two-thirds or more of state, local, and tribal respondents to GAO’s surveys reported that they did not use funds for this purpose, partly due to competing priorities.

Clearly grantees will spend money on indigent defense when the feds tell they they have to, but prioritize law enforcement and prosecution spending nearly exclusively when left to their own devices.

As it happens, Grits has quite a bit of history with Byrne grants in Texas, spending five years on a campaign to convince Texas to shift its federal block-grant spending away from Tulia-style drug task forces, including authoring two public policy reports on the subject (see here and here). Initially, after the drug-task forces were de-funded in 2006, roughly half the Byrne grant money began to fund the Governor's new border security projects while much of the rest went to fund things like drug courts, diversion programs and frequently law enforcement equipment. (Here's an example of Byrne/JAG grants from a recent quarter to give you an idea of how the money is spent in Texas today. See the full list (pdf) of the various grant funding streams administered by the Governor's Criminal Justice Division.)

As drug task forces began to shut down - either from scandal or from counties' fear of increased liability as their insurers demanded higher premiums in the wake of the Tulia and Hearne episodes - we actually sent out blank grant applications to counties when I was at ACLU of Texas suggesting they apply for money to use for other, more constructive things, particularly drug courts and diversion programming. So I understand and agree with the strategy of making applicants aware of their eligibility, but that's not enough in and of itself. If Congress and/or DOJ want Byrne/JAG money spent on indigent defense they may need to require some minimum proportion go to that purpose.

Presently most indigent defense grants in Texas are funneled through the Texas Indigent Defense Commission grant programs, which are financed (at lower levels than Byrne grants) largely through the federal Office of Justice Programs. If Byrne grant money could also be used to launch indigent defense programs, I bet a lot of Texas counties would apply for that purpose.

Unfortunately, on the website of the Texas Governor's Criminal Justice Division is a "Guide to Grants" (pdf) describing the various funding streams doled out by that office, which specifically excludes "legal services for adult offenders" from allowable grant expenditures. Here instead are the areas the Justice Assistance Grants in Texas are designated to fund:

• Border Initiatives
• Court Programs (except Drug Courts)
• Data/Information Sharing Systems
• Drug Court - Adult
• Drug Court - Family
• Drug Court - Juvenile
• Equipment-Only Purchases
• Gangs – Adult
• Investigation
• Prosecution
• Substance Abuse
• Training
• Technology

Indigent defense is notably absent from the list. So even if DOJ increases the Governor's Criminal Justice Division "awareness that funding can be allocated for indigent defense," unless that restriction is changed it won't boost the proportion of Byrne/JAG grants going to pay for it in Texas. Larry Akey at the Constitution Project says that "it’s Texas policy" and not any federal restriction "that prevents them from using Byrne-JAG for indigent defense." He wrote in an email that:

Indigent defense has long been an approved use. Starting in 2010, the DOJ has stated explicitly in  application materials that indigent defense is an appropriate use.  For example, in 2012, the Byrne JAG state solicitation indicates:
 
“Another key priority area is ensuring that justice is truly done in the criminal justice system is support for indigent defense. BJA continues to encourage states and SAAs to use JAG funds to support the vital needs of the indigent defense community. Attorney General Holder has consistently stressed that the crisis in indigent defense reform is a serious concern which must be addressed if true justice is to be achieved in our nation.”

If that's accurate, it's Governor Rick Perry's Criminal Justice Division policies, not federal law or regulations, keeping counties from applying for Byrne/JAG money for indigent defense programs.

Grits contacted the Governor's Criminal Justice Division on Friday to ask why that rule is in place, but after an email query and leaving a message with a receptionist did not receive a return call by the end of the day. I also asked Jim Bethke from the Texas Indigent Defense Commission about the restriction. He said he knew nothing specifically about Byrne/JAG grants, but dashed off a quick note to say "CJD has been supportive of various initiatives we have brought to them over the years.  Travel funds for county officials to attend indigent defense travels, collaborations on veteran defender programs, and I’m certain there are other things too. And more importantly than the 'CJD' funds, the Governor has supported the growth of indigent defense appropriations for our agency."

Even if the Governor has been supportive of indigent defense funding from the state budget - and that's no small credit to him in these trying fiscal times - I bet there are more than a few county commissioners from both parties (at least those whose counties don't get Border Star money), who would like to see federal and state grants focused more on basic statewide needs like improving indigent defense and less on a handful of often thinly populated counties along the border.

For example, in one recent quarter, Webb County (Laredo) received roughly $242,000 for a drug court program plus $303,000 in JAG money under Operation Border Star. The same quarter, much smaller Starr and Maverick Counties received $279K and $282K, respectively, under Operation Border Star. By contrast, just as example, Lubbock County the same quarter received three grants for specialty courts totaling roughly $211,000. Jim Hogg County, by comparison, with a total population of less than 5,000 people, received $233,646 that quarter for a "Major Crimes Unit." A lot more people live in Lubbock County than Webb, much less Jim Hogg, for heaven's sake, but because border security has been prioritized over indigent defense, they receive less federal grant money. And that doesn't even speak to the enormous pots of state money from the general fund the Governor distributed along the border on top of this federal pork.

It's possible the timing is fortuitous to attack this disparity in the distribution of Byrne/JAG grants. These are block grants distributed at the discretion of the Governor. But the Governor has likely gotten all the political mileage he can out of his border security message (it didn't do him much good, for example, in the presidential primaries), especially now that economic malaise and the Obama Administration (or do I repeat myself?) have functionally combined to reduce the illegal immigration deluge Perry decried with such anguish in his 2006 and 2010 campaigns. Indigent defense is something virtually every county is struggling with, and this might be a good moment for the governor to pivot on this question, much as he did in 2006 to eliminate Byrne/JAG funding for drug task forces, a move which many saw as flying in the face of his "tough on crime" image.

Finally, on a seemingly tangential yet pivotal, related subject, none of that will matter for Texas counties which can't get 90% of their old case dispositions inputted into the state's data system by September 1. These are Byrne/JAG funds are precisely the grants the Governor's Criminal Justice Division said they would stop doling out to counties that didn't begin reporting case outcomes. So border counties, in particular, had better start getting their ducks in a row. Here are the rates of case disposition from border counties recorded with DPS according to data released when the Governor's office announced the new data-entry requirements:

Brewster: 57%
Cameron: 43
Culberson: 28
El Paso: 81
Hidalgo: 73
Hudspeth: 2
Jeff Davis: 25
Kinney: 54
Maverick: 30
Presidio: 20
Starr: 19
Terrell: 27
Val Verde: 69
Webb: 30
Zapata: 3

Source: DPS (pdf)

So some of these counties - not to mention more than a few others around the state - may become ineligible for Byrne/JAG money after September 1. If that happens, the Governor should push to remove the restriction on funding indigent defense with JAG funds and use freed up money to finance the same mission being promoted at the Indigent Defense Commission. The Governor has said many times that defending the border is the feds' job and he's spending mind-boggling sums there in Texas resources and manpower to do a job the feds won't do. Well they're doing it now. It's time to declare victory and repatriate those resources back to Texas' domestic needs, letting the rest of the state benefit more proportionally from the federal tax dollars they send to Washington. Indigent defense is something virtually every Texas county struggles with. Why not remove that requirement and focus some portion of Byrne/JAG grants on indigent defense projects, just as the GAO and the Constitution Project say other states have done?

Either way, the Governor's Criminal Justice Division should change its rules to eliminate the ban on JAG grants for "legal services for adult offenders." There are no shortage of worthy programs to finance, and the maximal emphasis on border grants, especially to the smallest counties, has gone on well beyond the point where increased utility justifies the cost.

Morton attorney: How John Bradley fought to keep Michael Morton in prison

As primary season heats up, Williamson County District Attorney John Bradley has been repeatedly forced on the campaign trail to defend his role opposing DNA evidence and the release of exculpatory evidence under open records during habeas proceeding challenging Michael Morton's false conviction. But Bradley's statements have strayed so far from the facts, says Morton's attorney John Raley, that the Houston lawyer felt compelled to issue a corrective "Open Letter to Williamson County." In it, he details how and why Morton remained in prison around 2,400 extra days because Mr. Bradley fought testing using every possible means, all the while denigrating Morton in comments to the press. Bradley for a time even opposed Morton's exoneration, a fact he repeatedly obfuscates, after DNA testing pointed to Mark Allen Norwood as a suspect!  Here's the remarkable letter in fulll, it speaks for itself:

Open Letter To Williamson County:

TDCJ flak allegedly faced retaliation for treating blogger as 'media'

According to the Back Gate, a prison-guard run website, Michelle Lyons, the long-time chief flak at the Texas Department of Criminal Justice's public relations department, has "resigned after enduring retaliation and harassment by agency officials for several months." (She's been unenviably replaced, says TDCJ's website, by understudy Jason Clark.) The Back Gate reported that:

Michelle emailed us this statement [yesterday] morning;

"When I received the email from Duane [Stuart, a Back Gate blogger] on Friday and when I responded to him and everyone who he had originally copied on the message [ed. note: including state Sen. John Whitmire's office], it set in motion a chain of events. Within a couple of hours, my email account was 'frozen' and I was told I was under investigation. Before I was charged with failing to obey an order, I was told that I should not have responded to Duane because he is considered media. At this point, I would note that some time ago, I was tracking down an answer to a question Duane had asked me and I went to Mr. [TDCJ Deputy Executive Director Bryan] Collier. He asked why I was responding to Duane since "he's not media." It's interesting to me that he wasn't 'media' several months ago, but now he is? At the time, I said that while Duane may not meet the definition of media in TDCJ's own media policy, that he is a TDCJ employee and member of the public and that I respond to as many inquiries I can from the public in addition to those I receive from the media. That's exactly what  I did on Friday. I view it as responding to a message from a colleague about possible federal labor law and privacy violations and including on it my union representative and two state lawmakers. Why is that an issue?"

Michelle went on to say;

"I know that what I've gone through these last six months is similar to what so many other TDCJ employees have had to endure during their own tenures with the agency. I just really didn't understand until it happened to me. I'll never know exactly what initiated the discriminatory measures they took against me with my demotion and pay cut, but I can pinpoint that the retaliation began as soon as I questioned the way TDCJ requires employees to track their time and how they appear to be circumventing federal labor laws through some policies (although an agency policy obviously shouldn't trump federal law). Within two weeks, Mr. Collier told me 'I should have just fired you,' and it only escalated from there."

Fascinating! Certainly Lyons doesn't deserve to face retaliation over responding to legislators cc'd on an email from a blogger requesting information, if that's really the proximate cause. Whoever has her (former) job must play a dicey balancing game between a variety of competing, powerful interests, and I completely understand why - when they've already been told of the issue by Stuart - she'd see fit to let legislators see sensitive information from her first before it appeared on The Back Gate. Hell, that's PR 101.

Grits finds the institutional attitude toward blogs described in these excerpts quite telling, if regrettable, confirming a dismissive attitude I've sensed in the past. Bryan Collier doesn't consider blogs "media" so Lyons must couch her actions as "responding to a message from a colleague about possible federal labor law and privacy violations and including on it my union representative and two state lawmakers." IMO, though, she needn't contort in such a manner to justify what she did. The definition of "media" has changed in the last decade and The Back Gate surely qualifies. After all, they broke this story.

See more detail and Stuart's commentary at The Back Gate.

Little fish

It's the nature of snitching in the criminal justice system: Big fish get off, little fish get eaten. From the Houston Chronicle, see: "Drug crime sends first-time offender grandmom to prison for life: Houstonian, who has no secrets to trade, is doing more time than drug lords."

Travis DA race: Should we learn lessons from false convictions, or even acknowledge them?

There are many reasons to be cynical about modern elections, but one functional benefit they provide - at least in seriously contested races - is to force incumbents to defend their practices, raise up alternative approaches, and generally provide an opportunity for public debate about the minutiae of a job that normally is never the subject of media coverage nor even public conversation. In that vein, the Austin Chronicle has an interesting back-and-forth interview/comparison with Travis County DA candidates, incumbent Rosemary Lehmberg and challenger former Court of Criminal Appeals and District Judge Charlie Baird. (See the Chron's earlier coverage of the race.) The first item on the Chron's list is of issues "Wrongful Convictions," and here I immediately fall out with the incumbent DA, who announces that:

We actually had three that were brought to us, and we did DNA testing, and two proved to be wrongful identifications and one confirmed guilt. And there wasn't much publicity about the one that was confirmed, because it was just confirmed. ... But it was after the two mistaken identification deals ... that we began looking at, eventually, 400 old cases on our own to determine whether biological evidence was present that could be tested but wasn't. And we did not find any exonerations. We retested about six cases and did not find any exonerations.

Baird argues that the department has not taken the lessons from wrongful convictions to heart:

She says there have been three DNA cases, and that two of them were exonerations. I don't know what changes they made as a result of that. ... When there is a plane crash, everybody stops and they go out there and they figure out why did this plane crash, and let's make sure it never happens again. It seems like to me that they don't do that in the criminal justice system. They don't say, "Well, my God, why did this happen in Morton?" Or Ochoa and Danziger?

While I agree with the need to re-evaluate internal practices when false convictions occur, to me Lehmberg's response raises an even more troubling concern. As is often the case when interpreting political rhetoric, perhaps more important than the incumbent's actual statement is what she left unsaid. The DA doesn't say which cases she's talking about and Grits can't tell from the context. She said the exonerated two were based on false eyewitness IDs, for example, so that wouldn't include Christopher Ochoa and Richard Danziger. So she seems to be downplaying and understating her office's problem with false convictions.

In addition, she's seemingly not including the Yogurt Shop defendants among the exonerated. There, DNA evidence obliterated the state's theory of the crime, causing the convictions to be overturned and the defendants to be released. If Lehmberg is not including those defendants in the totals, that means she's clinging to the preposterous unindicted co-ejaculator theory involving some mysterious fifth perpetrator unforeseen by the prosecution's theory nor referenced during the lengthy interrogations that led to the overturned confessions. (Perhaps she's only including cases that came to the office while she was sitting as DA, but she was First Assistant for a dozen years before that and a key decisionmaker on the appeals and writs in question.)

So my concern is less that the office hasn't learned any lessons from the two cases that they grant resulted in false convictions, but more that she seems to remain in denial over false convictions in the Yogurt Shop and Pizza Hut murder prosecutions that gives me pause about her re-election.

Baird, by contrast, has consistently been on the cutting edge of the notion that false convictions could be rooted out while still ensuring the guilty are convicted, standing up as a leader on the issue as far back as the late 1990s both while serving on the Court of Criminal Appeals and afterward, leading Grits to recently call him "virtually the father of Texas DNA exonerations" for his role in the Roy Criner case.

Lehmberg's somewhat blindered, bunker mentality IMO doesn't stem from some nefarious desire to falsely convict anyone but from the tunnel vision that comes frpm working as a prosecutor in the same office for nearly forty years (which is how long she'll have been there when this contested next term ends). My sense is Charlie Baird will be more willing to try new things and move more aggressively to improve processes when errors happen, if only because he'll have no personal, institutional stakes in defending the status quo, a reflex which from time to time seems to stymie the incumbent.

This is one of several issues that to me clearly delineates the candidates and makes me come down on the side of Judge Baird. Every politician has flaws and like Craig Watkins in Dallas, I won't agree with him on every issue. But Judge Baird would enter the job unfettered by decades of institutional baggage that IMO  limits the incumbent's vision, not to mention possessing a more profound appreciation for the implications of DNA exonerations for the prosecutorial profession. I don't know if Democratic primary voters will understand that distinction, but to me it's an important one.

Obama may have stingiest pardon record of any American president

Recently Grits dubbed the President "Obama the Merciless" for his remarkably parsimonious pardon policy, and now a story in U.S. News and World Report MSNBC takes on the same theme. It opens:

President Barack Obama is on track to be one of the least forgiving of presidents in U.S. history — as measured by his use of presidential pardon powers, according to a political science professor who blogs about clemency exercised by presidents and governors.

"It is fair to say two things," said P.S. Ruckman Jr., who teaches at Rock Valley College in Rockville, Ill. "One is (Obama) is definitely being exceptionally stingy. There’s no doubt about that. There’s also no doubt that this is in a way unexpected."

As president, Obama has pardoned 23 people, including one commuted sentence, in his first 40 months in office. Barring a dramatic flurry of clemency from the White House in the coming eight months, Obama will be among the bottom two or three presidents for granting pardons in his first term, Ruckman said. That puts him in the running with Presidents George Washington, John Adams and James Garfield, who was assassinated after serving less than seven months.

The story mostly relies on the work of our blog-pal Prof. P.S. Ruckman, who writes at Pardon Power, and whose excellent primary-source work Grits has frequently cited. When Washington and Adams were presidents, of course, there were barely any federal convictions they might conceivably pardon! (It took some years for Congress and the states to enact anything remotely resembling functional penal codes, and most prosecutions at the time were brought as private, essentially civil causes of action.) James Garfield, assassinated seven months in, had a good excuse for his low total.

Otherwise, that leaves Barack Obama with functionally the chintziest pardon record among American presidents, at a time when the raft of criminal convictions during the tuff-on-crime era has spawned more pardon requests than ever. Here's a graphic produced by Prof. Ruckman depicting the proportion of pardons given to those requested since WWII by president:

Even George W. Bush appears compassionate by comparison to Obama. "Among recent presidents, George W. Bush had granted 37 pardons and commutations at about this point in his first term. By the end of the year, he had added another 32." Here's Ruckman's depiction of American presidents' historic pardon records before Obama took office:

I don't understand this: Why does the Office of the Pardon Attorney in the Justice Department exist if they consider essentially no one worthy of clemency? How has the President become so dis-empowered on the question that he can't or won't make independent judgments? Perhaps it's true that the role of advising the President on pardon applications should be removed from the Justice Department and handled instead by some appointed adviser or board who understands their job is to recommend pardons. For reasons Grits can scarcely understand, DOJ's Office of the Pardon Attorney seems to think their job is to find excuses to avoid performing the function for which their division was created, and this president more than any other has acquiesced in the trend. As a constitutional scholar in his own right, Barack Obama of all people should know better.

See prior, related Grits posts:

• Obama the Merciless
• Eat the turkey, pardon O. Henry! President quotes Texan writer but won't pardon him
• Institutional prosecutorial bias limits federal pardon recommendations from DOJ
• Perry should expand clemency, trump Obama in Christmastime ritual

Reform this agency or I'll cut you: Jay Kimbrough returns to TJJD

The Governor's "fixer," Jay Kimbrough, is going to resolve whatever's wrong with the Texas Juvenile Justice Department or else whip out his knife and cut anybody who gets in his way. At least part of me hopes so. If he brandishes it just once more at another government official, Kimbrough's would be the most famous Texan knife since Jim Bowie's! Okay, perhaps it won't come to that, but it's nearly the only way this whole TYC/TJJD saga could get any weirder, and when the going gets tough in Texas, the tough frequently get weird.

Kidding aside, the Texas Tribune's Brandi Grissom reports the remarkable news that Mr. Kimbrough will be returning to TJJD. Her story opens:

The man who has become Gov. Rick Perry's problem solver, Jay Kimbrough, is going back to the state's juvenile justice agency, which is facing a crisis again five years after the last time he helped bail the agency out of a major scandal.

"I am pleased that Jay has agreed to help TJJD as we restore legislative, public and employee confidence that Texas is operating facilities that are safe for both employees and youth,” Texas Juvenile Justice Department Executive Director Cherie Townsend said in a press statement on Tuesday.

Kimbrough, who will be on loan from the Texas Department of Public Safety, where he serves as assistant director of homeland security, served as conservator of the Texas Youth Commission in 2007 after investigative news reports revealed horrendous sexual and physical abuse at juvenile lockups. He will act as special assistant for safety and security at TJJD.

Long time readers will recall Kimbrough was briefly assigned to oversee the Texas Youth Commission in the early days after the media reports revealed the agency had covered-up sex scandals and tolerating abusive employees. He left to make way for Ed Owens' disastrous conservatorship, which sought to turn TYC into a mini-adult prison system, bringing in fumbling leadership from TDCJ as well as an adult security mentality heavily reliant on pepper spray and solitary confinement. Repeating that failed approach would be a nightmare.

On the other hand, it was also Kimbrough who authored TYC's initial moves to reduce youth inmate populations, an approach that has worked well beyond anyone's imagination, allowing the state to close multiple youth prison units while juvenile crime has continued to plummet.

So I'm at least slightly sanguine that Kimbrough's appointment won't necessarily spawn a repeat of the unhappy era when Ed Owens and his associates from TDCJ drew down a bevy of lawsuits and near-rebellion among staff. Whether or not it was Kimbrough's intention to foist adult practices onto juvenile corrections, he's now seen that approach didn't work and he's nothing if not a pragmatic man. A fellow as fond as Kimbrough of bold moves can't help but sometimes make a wrong turn, but in my observation he's not the type of fellow to make the same mistake twice. And he may decide the state should double down on the part of his strategy that did work: Further de-incarceration and shifting responsibility for supervising more delinquent youth back to the local level.

Even longer-time readers will recall Kimbrough's "fixer" stint helping the the Department of Public Safety try to rein in Texas' regional narcotics task forces in the wake of 2005 legislation putting them under the command and control of the DPS Narcotics division. Many task forces simply refused to comply, and the Governor's Criminal Justice Division ultimately eliminated their funding entirely in 2006, shifting the federal grant money which for two decades had supported hundreds of narcotics officers to a combination of border enforcement and diversion programming, with an emphasis on specialty courts. In essence, they shifted responsibility for drug-enforcement downstream to the local level much like TYC shifted responsibility for supervising more delinquent youth back to the counties.

At TYC, Kimbrough had good instincts about reducing inmate populations but not about putting Ed Owens and his TDCJ cadres in charge when he left, to the extent that was his call. OTOH, in my view he knocked the drug-task force issue out of the park. And in both instances, one notes, part of his approach was to eliminate failing institutions instead of reform them, which may give a hint as to one possible approach he could take at TJJD along the same lines.

One of the major alternatives being bandied about is to eliminate most of the rest of juvenile detention facilities (they probably can't get rid of the mental health beds) and shift more money and responsibility to counties to manage delinquent youth. If Kimbrough decides Texas youth prisons are completely dysfunctional, as was the case with the drug-task force system, will he similarly recommend a wipe-the-slate-clean approach? At this point nothing would surprise me.

At least formally, Kimbrough has been brought in as an assistant to Cherie Townsend, though a "special assistant" with the Governor on speed dial won't always be perceived or necessarily behave as a subordinate. Hold onto your hats. The agency is no doubt in for another tumultuous year between now and the end of the 2013 legislative session.

Cameron County DA accused of exchanging 'favorable discretion' for money

In Cameron County, reports AP, federal prosecutors have accused District Attorney Armando Villalobos of

soliciting and accepting more than $100,000 in bribes and kickbacks for favorable discretion, including in decisions to minimize charges, pretrial diversion agreements and case dismissals. His indictment together with his former law partner Eduardo Lucio stemmed from a yearslong investigation that has implicated attorneys, a former legislator and at its center, former state District Judge Abel Limas, who pleaded guilty to racketeering last year.

Prosecutors have a tremendous amount of discretion and when that discretion affects people's lives, it can become a commodity in the hands of the unscrupulous, which is what's alleged here. County Judge Carlos Cascos isn't wrong that "the indictment puts the office under a cloud and would affect morale," but I only agree that's reason to resign if Villalobos really did exercise "favorable discretion" in exchange for money. Indeed, if he did that, the consequences should and likely will be far worse than just losing his job. But those are serious charges and somebody still has to prove them.

'Let Yankees adopt such low callings ...'

Thanks to readers who had kind things to say, in the comments and via email, about my father's recent award. My brother has written about the ceremony, and I put up an item on my personal blog, Huevos Rancheros, ruminating on some of the family history discussed at the event. See "Let Yankees adopt such low callings: Reflections on the making of a southern lawyer."

TJJD contracts questioned

An audit found poor documentation for much of the construction and other contract spending by the Texas Youth Commission, now the Juvenile Justice Department, reported the Austin Statesman's Mike Ward on Saturday. The story opened:

During the past five years, the Texas Juvenile Justice Department relied heavily on change orders to pay for construction work that was not within the scope of the original contracts and failed to document the changes as required, a new audit revealed Friday.

In addition, the internal audit found that in more than half of the files examined, change orders that required the approval of top agency officials had none.

The audit does not provide detail on the contracts. Officials said Friday that those details were not immediately available.

The agency and its predecessor had more than $35.3 million in construction projects under way or queued up during the period that the auditors reviewed. While they reviewed only nine contracts in detail, such samples are commonly used as an indicator of potentially larger problems.

Robin McKeever, the agency's deputy executive director, who was previously chief financial officer with purview over contracts, said that eight of the nine contracts examined in the audit had change orders — more than 30 orders, in all.

On Friday, the agency's 13-member governing board approved new policies designed to curb those problems — the latest issue to buffet a department facing a legislative investigation over safety and security lapses at the Giddings State School and other lockups.

Victoria paper examines jail suicides

The Victoria Advocate yesterday published an informative item ("Victoria County Jail takes steps to stop suicides by inmates," May 7) on Texas jail suicides which opened:

At a time when suicides are the leading cause of death in county jails, Texas jails are following tougher standards to bring down those numbers.

Authorities agree the application of the state's suicide prevention program at the Victoria County Jail helps keep the number of suicides and inmate uprisings to a minimum.

Of the five deaths in the county jail since the Texas Commission on Jail Standards began regulating them in 2009, two were suicides. The other three were listed as natural causes.

Texas once led the nation in jail suicides, but a state suicide prevention program has helped the state shake that stigma.

The statewide rate dropped from 31 in 1986 to 17 in 1994, according to an article by Graham Baker in Texas County Magazine.

The Texas Commission on Jail Standards reported 19 county jail inmate suicides last year.

See the rest of the story for details of strategies being pursued in Victoria in the wake of two recent jail suicides. It should be mentioned there have been some questions about undercounting suicides, but not enough to mitigate the downward trend described in the story compared to the '80s. In any event, as the leading cause of inmate deaths the issue has to remain a central focus of risk management at county jails.

Prison healthcare budget falls predictably short

This news should come as no surprise to Grits readers, but Mike Ward reported in Friday's Austin Statesman ("Report: Texas prison health costs higher than thought," May 6) that:

The cost of providing health care to Texas' 154,000 imprisoned criminals during the next two years will likely exceed the amounts allocated in both the Senate- and House-approved versions of the state budget, a new financial analysis shows.

The report on the University of Texas Medical Branch at Galveston's costs appears to validate the university's earlier assertions that it was losing money on providing the care, and it projects that the prison care could cost $930 million over the next two years — far more than either legislative chamber has appropriated so far.

The new figures counter an earlier "report that triggered intense criticism of the medical school and has prompted a lobbying rush by private companies who contend they can do the job for much less." Bottom line, the latest analysis found that:

In recent years, UTMB and Texas Tech have claimed losses totaling more than $60 million for providing the care, requiring supplemental appropriations several times from the Legislature.

The new financial review projects that the losses will continue for UTMB. Texas Tech costs were not examined.

In 2010, the summary shows, UTMB lost as much as $26.8 million — with actual costs listed at $436.1 million, for which the university was paid only $409.3 million.

During the 2012-13 budget period, the report estimates, the costs for UTMB to provide prison health care could range from $879.6 million to as much as $930 million — depending on whether costs for some physicians, interns and residents are included.

Madden acknowledged that the numbers in the report are significant, "if they prove correct, which I think they will."

This should come as no surprise; it was predictable and predicted; Grits calculated when the budget passed that prison healthcare was underfunded by $126.5 million over the biennium, and here we are, facing projections right at that amount. The lesson: It's possible to significantly cut prison health costs, but not without reducing the size of the prison population. They can't just cut on paper; the state must change policies to reduce costs.

Should TDCJ staff resent giving up Facebook passwords?

The Back Gate posed an interesting question to Texas prison staff and got some animated responses: "Is TDCJ violating your privacy rights by requiring you give them your Facebook password?" Most respondents seemed to be against it and some suspected the agency of ulterior motives: E.g., "This has less to do with keeping us from being friends with former offenders and everything to with keeping an eye on what we might be saying about our own administrations."

Whaddya think? Justified security measure or snooping beyond the purview of a government employer? There are a lot of interesting angles from many different perspectives on that one. How would you prioritize the conflicting values and interests aligned on the question?

Old foes haven't changed stripes: Keller v. Baird 12 years after Roy Criner's pardon

With Texas Court of Criminal Appeals Judge Sharon Keller facing the only contested general election race among her colleagues (she faces Democrat Keith Hampton in a sleepy but potentially significant contest), and former CCA and District Judge Charlie Baird running as a Democratic challenger for Travis County District Attorney (against incumbent Rosemary Lehmberg), Grits was interested to run across this pair of old interviews of the two former colleagues with PBS Frontline regarding the Roy Criner case, which was essentially Texas' first DNA exoneration, though he was freed by executive pardon rather than the courts. Here's what the two judges had to say about the case back then.

• Charlie Baird
• Sharon Keller

Criner's liberation opened the door for the dozens of DNA exonerations the state has witnessed since, but because Governor Bush pardoned Criner, the case didn't change much about the court's jurisprudence. Sharon Keller won the debate on the court, even if she lost it in the court of public opinion. She convinced a majority of CCA judges to side with her against Charlie Baird, but the following year the Legislature created the state's DNA testing statute in rebuke (Ch. 64 of the Code of Criminal Procedure). When the courts upheld prosecutorial objections to DNA testing, the Legislature came back in 2011, at the recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions and removed most grounds for opposing testing when the evidence could be probative.

What stands out most to me looking at these interviews more than a decade hence is how little Judge Keller has changed her views on innocence and post-conviction writs, and what a tremendous influence her thinking has had on the court. Criner's pardon didn't change the court's ruling, and Judge Keller's arguments back then against exonerating Criner based on DNA were essentially similar to the arguments a more recent 5-4 majority used to keep from granting habeas writs when a conviction was based on junk science. Judge Keller told Frontline:

This DNA test gives negative, not positive, evidence. It would not have made a difference in the jury's verdict. . . Nobody knows for sure. But no state ever says, "I'm not sure. Let's just give him a new trial." Before trial, it's up to the state to prove that he's guilty. Now, it's up to him to prove that he's innocent. That's his burden under the law: Has he unquestionably established that he's innocent?

This is the same argument as in Ex Parte Robbins, where a 5-4 majority including Keller declared that testimony by a medical examiner had "not been proven false" even though the medical examiner (ME) herself and numerous other experts concurred that her trial testimony had presented wrong conclusions unsupported by science to the jury. The district judge had recommended granting a habeas writ, finding that the recanting ME's "opinions were the sole bases of the State's case as to cause and manner of death, without which the State would not have obtained a conviction."

But using the same logic as they did to deny Roy Criner, Keller and Co.denied habeas relief even in the face of a complete lack of inculpatory evidence. The court's own precedents say a conviction may only be overturned if "no reasonable juror" would support it after considering the new evidence. In Robbins' case, the recanted testimony was the "sole" basis for the conviction, but the court ruled its falsity insufficient to overturn the conviction. I can't imagine what "reasonable juror" they're envisioning, but such is the Kellerite logic dominating the majority on today's Court of Criminal Appeals.

You see the same misshapen logic deployed in other arenas dominated by prosecutors, as with the Todd Willingham case at the Forensic Science Commission. The trial testimony about fire and arson was all hokum, it was the only directly inculpatory evidence presented to the jury, but Williamson County DA John Bradley insisted that just because there's no evidence of arson doesn't mean it couldn't have happened. Problem is, the jury wasn't told it "could" have happened; they were told the "fire doesn't lie." This is the precedential ghost of Roy Criner's case, further evidence that Sharon Keller's consistent if often invisible hand is still guiding the state down the same dark path that left the court humiliated in Criner and a national laughingstock. Rather than learn from the experience, Keller and Co. and the hard-line prosecutors whose interests they represent chose to double down and do everything in their power to prevent future science-based exonerations, culminating in the Willingham fiasco and Ex Parte Robbins.

Judge Baird, by contrast, for his dissent in Criner and his decision to speak out about it upon leaving the court, merits recognition as virtually the father of Texas DNA exonerations. It was his testimony before Congress that brought a national spotlight to the case, leading Republican Sen. Orrin Hatch to call the court's ruling "outrageous." Unlike Judge Keller, Baird acknowledged how it would impact jurors' decision if, instead of pointing to guilt, scientific evidence showed the defendant "didn't commit the offense -- at least, [he] didn't commit it under the theory the prosecution advanced at the trial."

When that happens, Judge Keller and the CCA majority think it appropriate for appellate judges to hypothesize other theories of the crime besides the one presented to jurors and suggest they "could" have found this or that alternative convincing. They could have, one supposes, but the case presented to the jury is the basis for appeals, not imaginary alternatives.

Baird, by contrast said of the Keller court's Criner decision, "What they have done, and I think improperly so, is to create or invent reasons that explain away the DNA evidence. But those reasons were never presented to a jury, and that's the basis of the entire judicial system -- you put those facts before 12 individual citizens, and let them decide if that evidence is reliable and believable, or not." One could say the same thing about the Willingham case as well as Ex Parte Robbins. To sustain the verdict would require supposition outside the bounds of what was actually argued at trial.

Keller's virulent pro-death penalty rhetoric and rulings on the court ("We close at 5," etc.) get the most attention from all the culture warriors, but IMO it's the string of cases from  Criner to Robbins that represents perhaps her most lasting and harmful achievement. The Texas Court of Criminal Appeals was going to be pro-death penalty no matter who sat on it, but Presiding Judge Sharon Keller (and her colleagues populating the court's extremist wing) are responsible for this odd, anti-science bent to Texas' innocence/habeas jurisprudence.