Me, APD, and 'Babysitting While White,' Part Deux

A few years back Grits posed the question, "Is babysitting while white reasonable suspicion for police questioning?" after my granddaughter and I were detained and questioned at length in my neighborhood on suspicion of some nefarious deed (it was never quite clear what). In that incident, the police were pretty clear I was stopped solely because Ty, like her mother (who came to live with my wife and me when she was a child) is black, while I'm an almost stereotypical looking white Texas redneck. At the time, Grits was amazed that three squad cars were dispatched to question me for walking down the street with a child of a different race, detaining me for no good reason and scaring the bejeezus out of then-two-year old Ty.

Last night, though, Ty and I got the full jump-out-boys treatment, making our earlier interaction with Austin PD seem downright quaint. It could only have been more ridiculous if they'd actually arrested me, which for a while there didn't seem out of the question. (This is a personal tale much more than a policy analysis, so if you're only interested in the latter, don't bother to read further.)

Judge: Court of inquiry to proceed investigating prosecutor misconduct in Williamson County

Remarkable! Judge Sid Harle has recommended a Court of Inquiry (see more background on this unique, Texas proceeding) regarding whether then-Williamson County DA Ken Anderson (today a District Judge) broke any laws by concealing evidence in the Michael Morton murder case 26 years ago. See:

• Your News Now Austin: Judge orders court of inquiry to gauge Anderson's misconduct
• Austin Statesman: Former district attorney should face court of inquiry in Morton prosecution, judge says
• Austin Chronicle: Ken Anderson should face court of inquiry in Morton case
• Houston Chronicle: Judge recommends inquiry into wrongful conviction
• KXAN-TV: Yes on court of inquiry in Morton case
• LA Times: Texas judge orders inquiry into wrongful conviction case
• KVUE-TV: Former prosecutor in Morton case now to face his day in court
• Texas Tribune: Judge asks for court of inquiry into Morton prosecutor
• Innocence Blog: Texas judge recommends court of inquiry on prosecutorial misconduct in Morton case
• Wilco Watchdog: Court of Inquiry to be held on Morton wrongful conviction

For much more detailed background on the allegations which led to the decision, see the report (144-page pdf) from Morton's defense team alleging prosecutorial misconduct based on their unusual, court-approved post-exoneration investigation.

Ugly allegations, OK sentencing reforms, and how to quickly fill up your jail

Here are a few, dispareate items that deserve Grits readers attention even if I don't have time to turn them each into individual posts:

Ugly allegations at juvie boot camp
Just in time for Valentines Day, here's a story of staff-inmate romance from a juvie boot camp in San Benito that got the adult staffer fired. The blog Hair Balls adds that the probation officer was found out when the boy bragged to a friend.

Because Texas county jails aren't quite full enough
An estimated 265 Texas law enforcement agencies will participate Feb. 25 in "The Great Warrant Roundup."

Local jail health provider sells out to national company
Randall and two other Panhandle counties contracted with a private company, Panhandle Correctional Care, but the local contractor was bought out by an out of state company from Maryland, reports the Amarillo Globe News. The new proprietors promise no change in the quality of care, but only time will tell. One of the problems with contracting for core services like inmate healthcare is that if the company you contract with sells out, all of a sudden you're stuck with a vendor from out of state who you never chose. One hopes it will work out, but it's a source of instability.

Dallas detective failed to investigate thousands of cases
In Dallas, a family violence detective allegedly failed to investigate thousands of cases, letting the file stack up in his garage. "More than 500 family violence victims were revictimized by the same person" after their cases were assigned to Det. Mickey East, reported Scott Goldstein at the Dallas Morning News (behind paywall). Remarkably, "East retired on Thursday after nearly 38 years on the force." Remarkably, "East had no prior disciplinary history," though he "was facing discipline that could have included termination." No one knows for sure how long this went on, but "Problems with East’s work were uncovered in September 2009, when a new supervisor found that East had entered into their tracking system just 16 cases in a four-year span. Detectives with similar caseloads had entered more than 1,500 during the same period." That speaks not only to Detective East's diligence, or lack thereof, but the supervisory structure that's supposed to oversee him, which is why it's notable that "Internal affairs cases are pending against one of East’s supervisors" related to the incident.

'Are America's Prison Towns Doomed?'
This subhed, which is the title of a article at The Atlantic, seems like a premature question to Grits, but Llewellyn Hinkes-Jones makes the case centering her critique on a Texas example. And certainly, there are data points here and there to support the thesis. Burnt Orange Report features a guest post describing the fallout in Littlefield, Tx, the same town featured in The Atlantic, exploring their ill-fated foray into the prison-for-profit business. And congrats to Bob Libal, Grassroots Leadership and ACLUTX for successfully opposing a new ICE family detention center in Texas.

These proposed sentencing reforms are OK
In Oklahoma, stakeholders convening through the Council on State Government's Justice Reinvestement Center have come forward with a new report (pdf) featuring a series of proposals to reduce recidivism and prison population costs. One of the biggest cost savers Grits would like to see Texas enact: "Require that every prison sentence include a period of post-release supervision of no less than nine months."

Mexican governor was allegedly on the take
A money laundering scandal has allegedly led to the doorstep of a former Mexican state governor from Tamaulipas, one of the states across the river from Texas. See the indictment (pdf) from Texas' Western District alleging murders and money laundering related to alleged payoffs to former Gov. Tomas Yarrington.

County Judge, ex-DPS Sgt, consents to search revealing pot

Guadalupe County Judge Mike Wiggins (that's "county judge" as in chairman of the commissioners court, not a workaday jurist) was arrested in College Station for possessing less than 2 ounces of marijuana, discovered after he consented to a search of his bag by law enforcement during a "protective sweep" of his hotel room. Wiggins, who is ironically a former DPS sergeant, told the Seguin Gazette, "There's nothing I can deny. It is what it is."

Somebody notify the folks from Law Enforcement Against Prohibition, I think we've got another potential candidate for them.

Here are a coupla questions for the Peanut Gallery: What do you think would have happened if Judge Wiggins had refused to cooperate and declined consent to search his duffel bag? From the media description, does it sound like the officer had probable cause, or could Wiggins have successfully asserted his Fourth Amendment rights against an unreasonable search of his effects?

In the same vein, following the search, "According to the officer, Wiggins confirmed it was marijuana and admitted it was his." As a former DPS Sgt., we're talking about a man who understood his "right to remain silent." If Judge Wiggins had exercised it, would his glum mug shot still be plastered across the front page of the Seguin Gazette this morning?

Wiggins' term isn't up till 2014 and to my knowledge a Class B misdemeanor won't automatically disqualify him from office (any more than public officials must step down when they get a Class B DWI), so it will be interesting to watch how this plays out, how locals respond, and for that matter how well (or poorly) the media handle the whole episode. "It is what it is," Wiggins told the paper, but in this day and age, what is it? Support for marijuana legalization in America stands at record highs. Is this a big deal? A little deal? No deal? Will voters view Wiggins as hypocrite or hero? Must he grovel and apologize, or is "it is what it is" enough? Bottom line: Is this a career killer for a workaday 21st century politico, or something voters can forgive? What do you think?

MORE: From the SA Express-News.

CCA laments 'disconnect between changing science and reliable verdicts' it helped create

The Texas Court of Criminal Appeals yesterday ordered an evidentiary hearing in the habeas writ application of Hannah Overton, the Corpus Christi woman convicted of capital murder for allegedly forcing large amounts of salt down her son's throat. Her case was featured recently in Texas Monthly, where reporter Pam Colloff cited experts criticizing the forensics underlying the case and  concluded Overton may have been innocent. In a statement accompanying the order, Judge Cathy Cochran wrote:

The judiciary must be ever vigilant to ensure that verdicts in criminal cases are based solely upon reliable, relevant scientific evidence-scientific evidence that will hold up under later scrutiny. I have previously expressed my concern about "the fundamental disconnect between the worlds of science and of law." Ex parte Robbins, No. AP-76464, ___ S.W.3d ___, 2011 WL 2555665 at *19 (Tex. Crim. App. June 29, 2011) (Cochran, J., dissenting).

This disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased. The potential problem of relying on today's science in a criminal trial (especially to determine an essential element such as criminal causation or the identity of the perpetrator) is that tomorrow's science sometimes changes and, based upon that changed science, the former verdict may look inaccurate, if not downright ludicrous. But the convicted person is still imprisoned. Given the facts viewed in the fullness of time, today's public may reasonably perceive that the criminal justice system is sometimes unjust and inaccurate. Finality of judgment is essential in criminal cases, but so is accuracy of the result--an accurate result that will stand the test of time and changes in scientific knowledge.

Id. The problem in this case, as in Robbins, is not that the science itself has evolved, but that it is alleged that the scientific testimony at the original trial was not fully informed and did not take into account all of the scientific evidence now available

Grits cannot help but point out that saying scientific testimony in Robbins "was not fully informed" is quite the understatement. According to Judge Elsa Alcala's dissent in Robbins, the scientific findings in that case were "based on false pretenses of competence, objectivity, and underlying pathological reasoning, and were not given in good faith." A lower-court judge had characterized the disputed testimony as "expert fiction calculated to attain a criminal conviction." The euphemism "not fully informed" soft-pedals state misconduct to the point of whitewashing it.

Similarly, another problem in Overton's case, unmentioned by Judge Cochran but reported by Pam Colloff at Texas Monthly, was that potentially exculpatory evidence about the victim's stomach contents wasn't turned over to the defense. In any event, Colloff concluded, "A more thorough investigation would have uncovered ample evidence to suggest that [Overton's son] had an undiagnosed eating disorder, raising the possibility that he had unintentionally consumed too much salt on his own."

Stepping back from the individual case, this is an example of the CCA struggling with the misbegotten progeny of Ex Parte Robbins (discussed by Grits here , by Liberty and Justice for Y'all here, and mentioned by Judge Cochran, who to her credit dissented, in the excerpt above). Cochran's order expressed the problem particularly powerfully and succinctly: The Robbins and Overton cases highlight how a "disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased." Well stated.

Judge Cochran's conclusion could apply equally well to the Legislature as to judges, both of whom must struggle to apply antiquated statutes and legal concepts to new scientific settings: "These are not easy issues," she wrote, "but fairness both to the applicant who is serving a sentence of life without parole and to the state and the memory of the child victim demands that our verdicts will withstand the rest of time such that the guilty are punished and the innocent are not. Further, public support of the American criminal justice system depends upon its confidence that the courts reach accurate verdicts based upon reliable scientific evidence." (Thank you, Judge, for saying it.)

To justify that confidence, both the courts and the Legislature must focus more on reducing or eliminating the growing "disconnect between changing science and reliable verdicts," as Cochran put it. It's good when courts acknowledge that disconnect; the question now becomes how to rationalize the law so that legal and scientific truth don't so quickly and easily diverge amidst the vicissitudes of criminal prosecutions and appeals? On that subject, the law hasn't yet caught up to the science, at least regarding post-conviction habeas writs. Maybe the Overton case will give the CCA a chance to improve their pathetic stance from Robbins, but in the meantime the Lege in 2013 should step in to clarify in the statute that junk science can still be challenged post-conviction.

How many other situations are there where, in Cochran's words, the "verdict may look inaccurate, if not downright ludicrous," in light of modern science, "But the convicted person is still imprisoned"? Nobody knows for sure. Too often, nobody in power appears particularly anxious to find out. At least in this case the court ordered further inquiry, to their credit. And the inquiry raises the profile of this legal/scientific "disconnect" that's become a recurring theme in and perhaps the central challenge confronting 21st century forensic science.

MORE: From Pam Colloff at Texas Monthly, who writes that Judge Cochran's:

statement comes in the wake of a number of high-profile DNA exonerations and reflects the court’s growing unease with the capriciousness of scientific evidence in the courtroom.

It also shows an evolution in Cochran’s thinking. Her 2002 ruling in the case of former death row inmate Anthony Graves—who was released in 2010 after eighteen years behind bars for a crime he did not commit—set Graves’s appeals back years. In the Graves case, Cochran ruled that a defendant was entitled to a qualified court-appointed attorney, but not necessarily to one who performed well.

Clearly, Cochran is deeply troubled by circumstantial cases like Hannah’s that may rest on flawed science.

BSG (broke state government) seeking forensic mental health beds

Found in the want ads in the Houston Chronicle:

UT Health Science Center is hiring for positions including a psychiatrist, psychologists, nurses, hospital aides (psyc techs), social workers, nurse practitioners, physicians assistants, recreational therapists and a chaplain for two units they are opening in March 2012.

1. Adult Forensic Detention Unit at The University of Texas Harris County Psychiatric Center (UTHCPC): The forensic unit will treat mentally ill individuals with medicine, psychiatric and psychological treatment who have committed a criminal offense and are in jail awaiting trial.

Didn't know that was happening, but perhaps it will contribute to short-term relief with the shortage of "forensic beds" at state hospitals designated for competency restoration. Relatedly, at the Dallas News Somer Ingram had a story published February 6 discussing Judge Orlinda Naranjo's yet-to-be finalized ruling (pdf) on timely admission of inmates needing competency restoration into state hospitals, discussed on Grits here and here. The story ("State may be forced to find room for mentally ill inmates," behind paywall) opened:

The state could be scrambling to make room in medical facilities for hundreds of mentally incompetent prisoners after a judge ordered that they can no longer be housed long-term in county jails.

State District Judge Orlinda Naranjo of Austin is expected to soon finalize her ruling, requiring that inmates whose mental illness prohibits them from standing trial be moved to state psychiatric hospitals within 21 days of receiving the order to be committed. The ruling will force the already-underfunded Department of State Health Services to find room and money for these inmates.

The inmates have typically been ordered to get treatment at a state hospital to restore competency and be able to stand trial. But because there is a perpetual wait for the 800 hospital beds set aside for patients from jails, inmates are put on a “Clearinghouse List” and confined to county jails until space opens up in a state hospital.

Prisoners spent about six months in jail waiting for a bed in a psychiatric facility over the past two years, their mental states deteriorating even further without proper psychiatric care. In Dallas County, 77 inmates are waiting to be admitted to a state hospital. All have been waiting longer than the 21 days the new rules would require.

“Keeping incompetent pretrial criminal defendants confined in county jail for unreasonable periods of time prior to being admitted to a state mental health facility or residential health facility violates the incompetent detainees’ due process rights as guaranteed by the Texas Constitution,” Naranjo wrote last month, ruling against the state in a civil case.

Naranjo’s ruling comes as something of a wakeup call for the state, which has underfunded state hospitals for years and made jails de facto care facilities for the mentally ill. But finding space in the hospitals remains a challenge.

Experts worry that changing the rules with no additional funding will mean a greater share of hospital slots dedicated as “forensic beds” for inmates, and no room in state hospitals for patients who don’t come from the jail system.

Department of State Health Services spokeswoman Carrie Williams said the department is already looking at how it would logistically comply with the final order but hasn’t gotten far yet.

“The problem is that forensic beds don’t turn over very quickly because the lengths of stays can be quite long,” Williams said. “We are evaluating right now what resources we have, what options are available and what changes we might need to make. We’ll of course have to look at space and staff as well.”

The attorney general, representing the state, has not yet decided whether to appeal the decision.

This court ruling has been years in the making and is potentially a game changer, but it may also turn out to be a temporary "check" in a much larger chess match. How will the state comply? What happens if they don't? Will appellate courts (or for that matter judges in other jurisdictions) back Naranjo's order, which has statewide implications? (For that matter, I'm unclear whether the Court of Criminal Appeals would get the case or the Texas Supreme Court - I suspect the latter.) How many new forensic beds are needed to comply with the terms of her order¿Quien sabe? 

Though Naranjo enjoys the reputation in Austin as a moderately liberal judge, in many ways this is a classically small-government ruling, as borne out by the critical passage in which she concluded that "the nature and duration of commitment of the Incompetent Detainees bears no rational relationship to the purpose for which those detainees are committed and the relevant state interests do not outweigh the Incompetent Detainees' liberty interest." (Emphasis added.) In other words, the state can't hold an individual just out of convenience. Individuals' incarceration in the county jail must bear some "rational relationship to the purpose for which those detainees are committed." It's almost the kind of thing Barry Goldwater might have said.

Yet the state does have a rational interest in prosecuting crimes and ensuring, to the extent possible, that mentally ill defendants don't go on to harm others. But if the state wants to perform that function, says Naranjo, it must invest sufficiently in competency restoration infrastructure not to violate mentally ill defendants' constitutional rights, which in her view kick in after 21 days. Notably, the attorney for Disabilty Rights Texas, Beth Mitchell, told Grits she'd have preferred that the ruling require state hospitals to accept defendants immediately when courts declare them incompetent, which she said may typically happen within 7-8 days, but Judge Naranjo decided to give the state more leeway.

A table at the end of the Dallas News story shows Harris County with remarkably fewer inmates waiting long-term for beds than Dallas and some other large jurisdictions. Though unstated in the article, I'm told this is because of one simple, critical fact: Harris County doesn't wait to treat incompetent inmates until they're sent to the state hospital! They screen, identify and assess mentally ill defendants quite rapidly on the front end - as they're entering the jail. In particular, wherever possible, the jail identifies mentally ill inmates' medications through past jail records, prescription-drug databases, from their personal physicians, local clinics, etc., particularly for frequent flyers. Often the first steps toward competency restoration begin well before anyone issues a court order to that effect. The result: Harris has a lot fewer backlogged inmates awaiting competency restoration for long stretches, and those Harris sends to state hospitals tend to have shorter lengths of stay compared to other jurisdictions. (Harris, the state's largest county, had 9 inmates who'd waited longer than 60 days for a bed, according to the Dallas News, compared to 66 in Dallas who'd waited longer than 70 days.)

Replicating Harris' approach requires devoting resources on the front end, which was well worth it in Houston because they're such a carceral Goliath. Necessity so often finding itself the Mother of Invention, Harris County's example lights the path for other counties facing the same problem, which is basically all of them so long as state hospitals are full: Implement early screening and diagnosis soon after entry into the jail along with an aggressive effort to identify patients' current prescriptions to minimize lapses and help prevent further de-compensation.

Similarly, Nueces County recently launched a pilot, grant-funded Competency Restoration Program, the Caller-Times reported Jan. 27, under which inmates "would wait days, not weeks, to begin state-ordered treatment to be get competent for trial." That's exactly the approach counties should be taking, big and small. If Harris and Nueces can both do it, size isn't so much a factor as funding and want-to. (If counties update all their case dispositions, perhaps the Governor's Criminal Justice Division would look favorably on funding startup costs for such efforts.)

It's Grits perception, though, that most counties haven't been nearly that proactive in addressing the problem. They may have to be. The Lege couldn't even authorize new beds for at least a year, and even then I'm not sure where they'd find them. (Maybe there are contractors willing to run a secure facility, but the state could also have to build more beds to comply. Who knows?) Or the state and/or counties could invest in quicker processing on the front end like in Harris and Nueces to resolve the problem before defendants get to the state hospital.

It'll be fascinating to see how Judge Naranjo's court ruling plays out because, judicial good intentions aside, state hospitals can no more manufacture extra hospital beds to comply with this mandate than the miser can squeeze coins from a stone. And there are so many unanswered questions: If they comply by reducing the number of non-forensic beds, what would be the unintended consequences? Might the Governor's Criminal Justice Division or some other source (heaven knows who) step up with grants to plug the gap? For that matter, given current budget circumstances, what happens if May 2013 comes and goes and the Lege hasn't ponied up money to resolve the situation? Most critically, what leverage will Naranjo have to enforce the order, and what modifications might be sought by the state? I'm proud of the judge for issuing that ruling, but for the moment it raises more questions than it answers.

MORE: From the Texas Tribune.

See prior, related Grits posts:

• Grits commenter played role initiating lawsuit over timely competency restoration
• Judge: State mental hospitals must take incompetent inmates within 21 days
• 'Neither punished nor treated, just jailed'
• Growth in forensic commitments exacerbates shortage of state mental hospital beds
• Judge orders state hospital to take more competency restoration patients
• Competency restoration process sounds crazy to columnist
• Few bills proposed at Lege to remedy statewide crisis in competency restoration
• Harris County pleads case for mental health, probation/diversion funds in state budget
• Jail deaths implicate state oversight, competency restoration funding
• Mental health cuts by state would shift costs to local jails, emergency rooms
• 'Harris County jail not the place to treat mental illness'
• The making of an unfunded mandate: Cuts to mental health would dump costs on county jails
• Cuts to state mental hospitals would be massive unfunded mandate for county jails
• Mentally ill languish in Bexar jail awaiting assessment, competency restoration
• Cuts to state mental health treatment would shift costs to local jails
• Cutting state psych hospital budgets could backfire
• Legislature's underspending on competency restoration beds creates havoc
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails

Residency restrictions on sex offenders in Amarillo facing fact-based backlash

Grits is exceedingly pleased to notice the level of scrutiny being applied in Amarillo to a proposed city ordinance restricting where sex offenders can live. Reports Karen Smith-Welch at the Globe-News ("Commission undecided on sex-offender proposal," Feb. 8):

A more focused proposal for regulating where some registered sex offenders can live in Amarillo didn’t clear up questions two Amarillo city commissioners have about whether such a law would make children here safer.

“I just honestly can’t find any clear and existing and compelling evidence that an ordinance of this sort will do what you think it will,” Commissioner Brian Eades said during a work session discussion about the proposal.

Commissioners began discussing residency restrictions for sex offenders registered on a statewide law enforcement database in late 2011 but slowed the debate to collect more research.

The proposed ordinance would bar convicted sex offenders from living near public or private schools, state-licensed day cares, and public parks and pools. The measure would make it illegal for offenders to live within 1,000 feet of those places, plus public recreational areas, youth centers and video arcades.

State law prohibits certain convicted sex offenders required to register on a Texas Department of Public Safety database from living within 1,000 feet of schools and other locations where children gather. But while they still must register their residences once their supervised release ends, the state-mandated residency restriction does not continue, police officials said in November.

Further, "Eades and Commissioner Ellen Robertson Green continued to raise questions Tuesday about whether the ordinance would actually accomplish the intent of protecting children from predators. Eades has cited research that shows a majority of victims are abused by people they know. Experts who work with abused children also raised that point during a November public hearing about the proposal."

Bully for commissioners and children's advocates who're subjecting this proposal to rigorous questioning, despite the Mayor's bum rush to get the thing passed before it can be thoroughly vetted. To what additional group of ex-offenders would this apply residency restrictions, specifically? What are the recidivism rates among that group, preferably by risk level? What percentage currently live somewhere that would violate the proposed ordinance, and would they be grandfathered in? What has been the policy result from expansive residency restrictions in other jurisdictions? After all, these two city commissioners aren't the only people with serious questions about the approach.

There's little evidence residency restrictions reduce recidivism, and indeed a 2009 report (pdf) from NIJ found that "recent research suggests that such restrictions have almost no impact on sex offender recidivism and may compromise public safety." That NIJ bulletin found that "Of the 3,166 sex offenders released from Minnesota prisons between 1990 and 2002, 224 male offenders [ed. note: 7.1%] were reincarcerated for a new sex offense before 2006." Of those recidivists:

Most of the offenders victimized someone they knew, which helps explain why 85 percent of the offenses occurred in a residential location such as the offender’s home. Furthermore, 113 of the 224 cases involved offenders who gained access to their victims through another person, typically an adult. For example, a male offender may develop a romantic relationship with a woman who has children. The sex offender recidivists would use these relationships to gain access to the women’s children.

Sex offenders rarely established direct contact with victims near their own homes. Sex offenders would be recognized more easily in their own neighborhoods, which may have made them directly contact victims elsewhere. When these offenders look for a victim, they usually go to an area within 20 miles of their residence, but still far enough away (more than 1 mile) to decrease the chances of being recognized.

With just five members on the Amarillo City Commission including the Mayor, critics of the residency restrictions need only convince one more commissioner to put a stop to this ill-conceived proposal. Commissioners Jim Simms and Lilia Escajeda earlier had previously supported the proposal - Simms told the Globe-News he backed the measure in order to “protect the children” - though it's possible one of them could still be swayed. He and rookie commissioner Lilia Escajeda are definitely the swing votes both sides will be courting to prevail.

Challenger doubles John Bradley's fundraising as rivals slug it out for Williamson DA

A pair of local news stories update us on the status of the Williamson County DA's race, where challenger Jana Duty has more than doubled incumbent John Bradley's fundraising total. The story this morning by  the Austin Statesman's Claire Osborn opens:

In the Republican primary campaign for district attorney, Williamson County Attorney Jana Duty had raised more than twice as much money as her opponent, incumbent John Bradley, according to the most recent campaign finance reports.

Duty raised $83,211.09, and Bradley raised $38,604.06, according to campaign finance records filed at the end of December with the Texas Ethics Commission. Duty said last week that she has since raised $30,000. Bradley said he has raised $20,000 since the beginning of January and expects to raise another $20,000.

Osborn points to Duty's successfully luring even self-described friends of Mr. Bradley like Austin attorney Roy Minton into her camp:

Austin criminal defense lawyer Roy Minton said Bradley is a longtime friend but that he is supporting Duty in this campaign.

"I believe that John has not shown the concern that I would like to see prosecutors have for young people that get into difficulties and need to be rehabilitated and continue in society without carrying with them a conviction or penitentiary time," Minton said.

Minton contributed to Bradley's 2002 campaign, campaign records show. Filings from July show that Minton's law firm also contributed $500 to Bradley's current campaign. Minton gave $500 to Duty's campaign, reports show.

Duty supporter Mark Brunner previously worked as an assistant district attorney under Bradley and is now a criminal defense lawyer in Georgetown. Brunner said he trusts Duty and said she "fosters a sense of a search for the truth."

Some criminal defense attorneys have said prosecutors under Bradley had offered defendants one-day deadlines for deals in their cases rather than allowing defense attorneys access to evidence, such as videos, that would help them make a decision for their clients.

Access to case files has become easier for defense attorneys since the Michael Morton case, Brunner said. Bradley did not prosecute the case but refused for six years to allow DNA testing on a piece of evidence for Morton, who was wrongfully convicted of the death of his wife, Christine Morton. Morton spent 25 years in jail before he was released in the fall; another man recently was charged in connection with Christine Morton's death.

Conversely, Your News Now Austin has an interview with John Bradley by Alana Rocha in which the incumbent takes his best shots at the challenger (and pretends his Forensic Science Commission nomination was shot down by "liberal Democrats" when Republicans drove the nails in the coffin). My own, admittedly biased estimation is that Jana Duty's much-ballyhooed troubles with the state bar - which largely stem from competing criminal and civil roles of the County Attorney's office - don't rise to the level of concern as John Bradley's politicized stewardship as DA, including but not limited to his aggressive opposition to possible innocence claims. Williamson County voters in the GOP primary, of course, must make their own judgment.

Fundraising is a tell-tale metric in politics, however, and usually the most reliable indicator after polling as a predictor of who will win an election. So for a challenger to "lap" the incumbent, as the Statesman headline writer put it, even an impartial observer (and Grits won't pretend impartiality) would have to conclude that John Bradley appears to be on the ropes, with most of the momentum so far on Jana Duty's side.

Still, even if both campaigns meet their fundraising projections, we're not talking about a lot of money given Austin-market TV prices, so much depends on a) how effectively the campaigns spend what they have, b) the few, limited remaining opportunities for earned media (Bradley may need some to alter his downward spiral), and c) whether Bradley's local establishment allies decide to hang him out to dry. I don't  know who benefits more from the likely postponement of the primary date: Normally I'd say the challenger, but it may be Mr.Bradley. Judging by the campaign's fundraising totals and projections, he may need some luck and all the time he can get to turn things around.

Mexican presidential elections and border security

What makes the escalation of the drug war in northern  Mexico so disoncerting - and also explains the impotence of the military and the federales to confront major drug cartels in that country - is that the fundamental causes of their sad situation are economic and political, not necessarily related to the success or (more often) failure of the justice system.

On the political side, high-level corruption defines this conflict in the eyes of many Mexicans I know. Under stewardship of the "PRI," which was the ruling party from the time of the revolution until 12 years ago, political favor doled out smuggling opportunities to various criminal organizations who, the theory goes, were allowed to operate in exchange for (relatively) low levels of violence. Once the PRI lost power, though, the infrastructure controlling the beast fell apart - first in Juarez and then Nuevo Laredo and beyond - corruption factionalized by region, and criminal gangs began openly competing for turf. By the time President Calderon sent the military in to take over security in northern Mexico, the government had become merely one of several competitors for political power. Think of it from a citizen's standpoint: If you want to remain safe, should you pay your taxes to the government or the criminal gang running a protection racket in your community? It's a non-trivial question.

On the economic front, NAFTA helped spawn a legitimate middle class in Mexico that didn't exist before, but it also depopulated rural areas, driving thousands of families, including  many with relatively little education or skills, out of agriculture and into an urban proletariat where the country's legitimate economic base was ill-prepared to absorb them. Such desperate poverty and lack of opportunity, combined with rational personal security decisions, underlie the cost-benefit analysis of many Mexicans who side with the drug smugglers against the government (or else waffle tentatively in the middle, waiting to identify the likely victor). This story about the massive drought in northern Mexico - for which I almost feel guilty after the bout of rain we've had -  makes me think the economic end of the equation may only get worse in the short term.

With military and police enforcement seemingly unable to stem the violence (it's declined in Juarez but expanded elsewhere in Mexico), and the Mexican public understandably opposed to direct US intervention, that pretty much leaves a poltiical solution as the only viable path forward for the troubled state. And that makes this summer's presidential elections in Mexico (replacing Calderon's successor for the next six years) more important for Texas' "border security," arguably, even than the US presidential race. In any event, the three-candidate field is now complete and it's a virtual guarantee any debates on "border security" will be more substantive and interesting than any we're seeing in the (endless?) GOP contest for US president, which should be refreshing in and of itself.

'How game theory is reinventing crime fighting'

From Governing magazine, a pair of stories again featuring Texas 2007 probation reforms as a a watershed event:

How game theory is reinventing crime fighting
and
Conservatives question the war on drugs

From the lede of the first story:

Three years ago, a group of conservative legislators from California slipped off to Texas. Among the purposes of their visit was to learn more about a new approach to controlling crime. The strategy involved investing in community corrections, not new prisons. The somewhat surprising thing was that the plan had been developed in Texas, with strong support from conservatives. Texas, after all, is a state that prides itself on being tough on crime. It executes more inmates than any other state and incarcerates the highest percentage of its population of any big state.

For two decades starting in 1985, Texas had built prisons with gusto, increasing by 300 percent the number of inmate beds. But in 2007, when Gov. Rick Perry produced a budget that asked the Legislature to appropriate $523 million in additional funding for three new prisons -- with more prisons to follow -- legislators balked. Instead, lawmakers decided to invest $240 million in diversion and treatment. By all accounts, this approach has been working. There have been declines in ongoing crime. Parole violations have plummeted. Prison overcrowding has eased.

Texas’ success intrigued the California delegation, but it didn’t inspire them to follow suit. Facing a strong prison workers’ union, opposition from district attorneys and a general unwillingness to relinquish the one tool -- being tough on crime -- that had worked for the GOP in the Golden State, the Californians listened but left with no game plan. “I think they honestly wanted to get something done, but they really felt they couldn’t do anything,” says Texas Rep. Jerry Madden, who was at the meeting as one of the architects of corrections reform in his state. “There were too many other influences they had in their system. It was almost an impossible situation for them.”

Today, California’s corrections system is a trainwreck. The state prison system is so overcrowded that the U.S. Supreme Court recently ruled that conditions violated the Constitution’s 8th Amendment ban on cruel and unusual punishment. Unable to balance its budget, California is currently in the process of shipping 40,000 state inmates to county jails. Texas, meanwhile, has become a model for corrections reform. Last year, at least 11 states, including Arkansas, Kentucky, Ohio and North Carolina, undertook similar sweeping corrections reforms with the intention of limiting the growth of their prison populations. This year, states as diverse as Georgia, Oklahoma, Missouri and Hawaii are expected to take up corrections reform based on ideas that have played out successfully in Texas.

“The Texas story helped spawn a wave of reforms around the country,” says Adam Gelb, who directs Pew’s Public Safety Performance Project. “We hear over and over, ‘If Texas can do this, [the approach] can’t possibly be soft on crime.’”

Cost clearly has been a major impetus for reform. Between 1985 and 2008, state prison populations nearly tripled. According to the Vera Institute of Justice, corrections spending rose even faster, by more than 600 percent. It now makes up 7 percent of state general fund spending. But cutting costs is only part of the story.

Ideas matter too. When crime began to spike in the 1960s, criminologists and public policy experts responded with a simple and compelling proposition: Lock away more people for longer. Today, new ways of thinking about public safety -- some of them rooted in game theory, behavioral economics and sociology -- are challenging the perceived wisdom about how to improve public safety and reduce incarceration rates.

Game theory seeks to understand what constitutes a rational course of action in situations where other people’s responses determine outcomes. For decades, academic game theorists have explored how promises, commitments, threats, the elimination of options, and other tactics can affect outcomes and the resulting “equilibrium.” In Texas and in a growing number of states and cities across the country, policymakers have found a smarter approach based on a new generation of research that applies insights from the world of game theory to the criminal justice system. It’s still a very new concept, but the resulting body of work is pointing policymakers toward new and potentially transformative ways of improving public safety while reducing the number of people behind bars. It also grapples with one of the most notable -- and appalling -- features of what some have called the current era of mass incarceration: its destructive effect on many African-American communities.

“Our crime rates have been dropping for nearly 20 years,” says Madden, “but we still have a greater demand for prisons. Why is this?”

A number of cities and states are asking the same thing. In response, elected officials across the nation from both political parties have begun to examine ways to replace a “tough” corrections policy with a “smart” one.

I'm glad Texas 2007 reforms are still getting national attention, but less sanguine about the fact that during the last 2011 session, the Texas Legislature slashed the prison budget without concomitant reforms, setting TDCJ up for a near-immediate budget crisis over rising healthcare costs. (They're reportedly paying $5 million per month over the budgeted sum while they're negotiating with UTMB.) So while the Lege defintely accomplished something original with Whitmire and Madden's 2007 budget efforts, they failed to build on that work in the last session, instead authorizing thousands of additional prison beds and passing dozens of new crimes and penalty enhancements.

Texas opereates a massive prison system and the 2007 reforms staved off new prison  building by diverting a small fraction from prison on the front end, as well as creating a handful of "intermediate sanctions" facilities that judges have the option to use. But other long-term trends - like the drug war, overcriminalization and the continued expansion of criminal law as seemingly the sole politically acceptable tool to confront every new social problem - continue to inflate the the system needlessly beyond its capacity. They  failed to take that next step in 2011, but budget circumstances may force their hand by 2013.

Prison costs won't be foremost on legislators' minds next year - budgets for schools and health care will be billions in the red, compared to perhaps several hundred million less available for TDCJ - but the legislators charged with budgeting for them will be confronted with a similar question: Grow and tax or how to safely cut? Since the former is politically unthinkable for anyone hoping to weather a GOP primary, it behooves members to think seriously about the options for doubling down next year on their 2007 successes. Perhaps all the national recognition of that important first step will encourage them to guide the system further down that path.

'School Discipline: A Pathway to the Juvenile Justice System or an Opportunity for Effective Intervention?'

Michelle Deitch asked me to post this announcement about an upcoming event focused on school discipline at UT's LBJ School with the same appellation as this headline:

The Barbara Jordan Freedom Foundation Symposium

“School Discipline: A Pathway to the Juvenile Justice System or an Opportunity for Effective Intervention?”

Monday, February 20, 2012

1:00 – 5:00 pm

The Barbara Jordan Freedom Foundation, in collaboration with the Center for Health and Social Policy (CHASP) at the Lyndon B. Johnson School of Public Affairs at the University of Texas, will present a symposium focused on the issues of school discipline and the juvenile justice system on Monday, February 20, from 1:00 – 5:00 pm.  The event, which takes place the week of Barbara Jordan’s birthday, is also co-sponsored by the William Wayne Justice Center at the University of Texas School of Law.

Texas State Supreme Court Chief Justice Wallace Jefferson will deliver the keynote address at 1 p.m. The keynote will be followed by three panels featuring elected officials, policymakers, and juvenile justice and education experts.  Confirmed speakers to date include Texas State Senator John Whitmire, Tony Fabelo (Council on State Governments Justice Center and author of Breaking Schools’ Rules report), Deborah Fowler (Texas Appleseed), Travis County Juvenile Judge Jeanne Meurer, Travis County District Attorney Rosemary Lehmberg, Prof. Brenda Scheuermann (national PBIS expert), Frank Vega (expert on children's mental health and trauma), and Mel Waxler (AISD). The first panel will focus on understanding the current policy landscape, including recent research on school suspensions and expulsions, and ticketing practices. The second panel will cover effective interventions with misbehaving students, and the third panel will center on shifting the culture surrounding school discipline and implementing reforms at the district level.  An agenda with a complete list of speakers is forthcoming and will be available here.

This event is free and open to the public, but space is limited and registration is required. To register, please visit: http://www.utexas.edu/lbj/news/barbarajordan/registration

The event will take place at the LBJ School of Public Affairs’ Bass Lecture Hall, located at 2315 Red River St., Austin, Texas, 78712. 

For more information, please contact the symposium chair,  Michele Deitch, at Michele.Deitch@mail.utexas.edu.

The Barbara Jordan Freedom Foundation (BJFF) is a new organization dedicated to perpetuating the legacy of Barbara Jordan by inspiring America to achieve the promise of freedom and justice for all people, by promoting the success of children through early childhood opportunities and effective education, and by confronting injustices and inequities in the juvenile and adult criminal justice systems.  The organization’s initial focus will be on issues related to school discipline.

Corpus crime lab expansion aims to reduce backlogs

The Caller Times reports today that DPS will open a new crime lab facility in Corpus Christi in April:

The Department of Public Safety will have a new crime lab next to the department's offices and existing lab at 1922 S. Padre Island Drive.

The new $10 million crime lab will be about 18,400 square feet, replacing the current 4,600-square-foot facility. In addition to testing drugs, blood alcohol and DNA, the lab will have equipment to analyze firearms and fingerprints.

Authorities said the new lab is much needed and are hoping it will bring quicker forensic results. The lab analyzes DNA evidence for 22 counties and conducts drug and alcohol screenings for 18 counties.

Valencia said police will investigate a crime, take statements and obtain physical evidence that connects someone to the crime. But they are forced to wait on results.

Cmdr. Todd Green said the police department cannot file cases to the district attorney's office until they get the lab reports from the Department of Public Safety facility.

"It causes a backlog," he said, "but its just something you have to work with."/

The testing of blood alcohol and drugs typically takes about 30 days, but DNA tests can take anywhere from eight months to a year, said Capt. William Edge, with the Nueces County Sheriff's Office.

RELATED: Upward budget pressure at crime labs.

More of this, please: Vocational training for prisoners facilitates jobs on reentry

Prison trusties in Hondo participate in get on-the-job kitchen training at a community food bank, with many hired as cooks upon release. Reported the SA Express-News ("Inmate cooks give back at food bank," Feb. 5):

Most employers are turned off by ex-convict applicants, [TDCJ laundry, food and supply director Tony  D'Cunha] said, but hiring from this program has been “exceptional.”

“This can be a model for food banks nationwide, where the prison system gives back to the community by returning (inmates) to society as taxpaying citizens,” D'Cunha said.

Want to reduce recidivism and long-term costs for incarceration and crime?  More than anything else, transitioning ex-offenders into the workforce makes the rest possible. It'd be nice to see this program not just continued  but scaled up.

Dallas DA defies court order, refuses to reveal police criminal histories

The Dallas DA last week refused to comply with a court order to turn over criminal histories of police officers, the Dallas News reports this morning (behind paywall), resulting in a contempt order and a contentious appeal:

The Dallas County district attorney’s office is battling a judge over whether prosecutors should routinely research and disclose the criminal histories of police officers who testify.

Criminal Court Judge Julia Hayes has on at least two occasions in recent weeks ordered prosecutors to determine the criminal background histories of police officers testifying in her misdemeanor court so that the information can be shared with defense attorneys. The district attorney’s office has refused, saying the law forbids handing over the information.

Hayes ordered a prosecutor held in contempt for refusing to comply with her order. In response, the DA’s office on Friday petitioned the 5th District Court of Appeals in Dallas to compel Hayes to withdraw the order about the records of officers.

Hayes, a Democrat in her first term, and public defender Elizabeth Perry, who is representing a defendant charged with family violence, declined to comment.

Defense attorneys say they worry that the law allows prosecutors to hide the background of police officers.

Defense attorney J. Michael Price II said that prosecutors already run the records of civilian witnesses and jurors and that he doesn’t see a difference in including officers.

“I think truthfully, they don’t want to run them because they don’t want to be in the position of finding that dozens of officers or more may have criminal backgrounds,” Price said.

The DA's Office, though, says the feds won't allow them to perform such searches:

A September 2001 letter from the U.S. Justice Department that prosecutors attached to their petition said that producing the records — even under a court order — violates federal law because it is an invasion of privacy. The letter was written to the Texas Department of Public Safety after a court order requested similar information in another Texas county.

The letter says that there is a difference if a criminal history already exists in the prosecutor’s case file. But the courts cannot compel prosecutors to create the information.

 I must confess, when we're talking about information in possession of the state, I don't see much difference in whether the info is in a database or in the prosecutor's file. It's well-established law that the state may commit a "Brady" violation, for example, even if law-enforcement never shared the information with prosecutors. And if it's true (as I'm almost sure is the case) that prosecutors run criminal histories of other witnesses, I don't particularly understand why police witnesses should get a pass.

Also, it's interesting that the letter in question is from September 2001, since almost immediately after that the feds began scaling back privacy restrictions and allowing much more widespread sharing of data among law enforcement in the wake of the 9/11 attacks. And I'm surprised, if the DA's position is accurate, that there's not a prior appellate case on point  as opposed to some decade-old administrative memo.

Should police officers' criminal history be revealed to defense attorneys? If not, why not? And what criteria might distinguish police from other witnesses for whom prosecutors routinely run criminal histories?

Few counties seek funding so far to update case disposition data

So far, Travis and Webb are the only two Texas counties to apply to the Governor's Criminal Justice Division for extra funds to pay for updating their case disposition data, reports the Odessa American. The CJD issued a memo last month saying grant funds will be cut to counties that don't update their 2006-2010 disposition data to include at leat 90% of arrests. The story describes a bit of behind-the-scenes pushback from counties:

Donald Lee, the executive director of the Texas Conference of Urban Counties, said the statistics are misleading and even prevent most counties from reaching the goal.

“You can never get to 100 percent in the most recent years because 100 percent is all arrests reporting disposition,” he said. “If you don’t dispose of a case (in court), even for good reason, you didn’t report the disposition.”

Many of the most serious crimes in Ector County, such as capital murders and sexual assaults, can take up to three years or longer before they go to trial, and Lee said such cases would count against a county.

Because of this, the TCUC, Texas Association of Counties, County Judges Association, Texas Association of Regional Counsels of Government, Texas District and County Attorneys Association, Department of Public Safety and CJD have come together to discuss what could make the process better and help counties reach attainable reporting goals.

“We are really encouraged in the governor’s office approach to improving it,” Lee said. “I wouldn’t say it has been a fight. The governor’s office has been very receptive to the issues counties have been addressing.”

Grits doesn't agree that these data are misleading, nor is it accurate IMO that a significant number of FY 2010 cases remain unresolved. The handful of capital murder and rape cases that drag on for years won't remotely account for 10% of arrests. And there shouldn't ever be an instance where counties simply "don’t dispose of a case (in court)." Whether the case is prosecuted or dismissed, SOMETHING happens with it.

The American also alleges data-entry problems on the state end that could interfere with counties meeting the governor's goals.

Ector County Judge Susan Redford said technical issues with the state’s reporting system have kept Ector County limited to the 84 percent it has reported from 2006 to 2010.

“The (Criminal Justice Information System) is overwhelmed and not accepting a lot of the reports at this time due to technical difficulties,” she said.

This whole issue has been a bit of a sleeper and I'm surprised the press hasn't paid  more attention to it. Grits supports the governor's new requirements, believing that the failure to include case dispositions in state data creates significant problems and unintended consequences for individuals, particularly those with dismissed cases, pled-down charges, etc.. Counties won't reach 100%, especially for the last year or so of the range, but they're not being asked to, and 90% is an eminently reasonable compromise. (Make me philosopher-king and I'd have put it at 95%.) In most cases, there's no good reason for failing to record dispositions from two or more years ago except, basically, a lack of want to. If massive Harris County can meet the new standard, and they do, all the other counties whose data is insufficient really don't have much of an excuse.

• What grants might be cut if counties don't improve crime data?
• Most Texas counties don't meet governor's new crime data criteria, may lose grants
• Governor's office will withhold grants for counties not updating criminal histories

More good coverage on law-enforcement charity scams

At the Austin Statesman, Tony Plohetski has a story on law-enforcement themed charities including the Texas Highway Patrol Association that claim to raise money for officer death benefits then spend the overwhelming majority of funds on telemarketing and feathering their nests. Particularly interesting is his account of mostly unsuccessful legislative efforts in the '90s to rein in the practice.

See related Grits posts:

• Texas AG sues highway patrol charity scam
• Sleazy charity scams should be shut down by the IRS or regulated by Texas Lege
• Millions in fundraising for so-called charity pays paltry death benefits to dead troopers' families
• Of buzzards, road kill, charity scams and the Texas Highway Patrol Association
• Houston police union rolling in cash, but six-figure thefts went unnoticed for years
• Sleazy telemarketers capitalize on public sympathy for fallen police

Demonizing pit bulls: Breed ban bad approach to dog-bite deaths

Among the criminal penalty enhancements and/or new crimes we can expect in the 83rd Texas Legislature in 2013, IMO  we're almmost certain to see legislation proposed banning dog breeds - especially pit bulls and related variants - under the pretense of protecting children, old people, etc., from deadly dog bites. Witness a Houston Chronicle story from yesterday that frames the issue in precisely that way, decrying the fact that "In the past five months, a newborn, another toddler and a 71-year-old retired teacher have been attacked and killed by dogs in the Houston area." Reported the Chron's Cindy Horswell:

Jaimee Westfall, a trauma nurse at Texas Children's Hospital for 13 years, said serious dog- bite cases were unusual in years past but now are becoming increasingly common.

"Over and over, I hear the victims' families say that they never thought their dog could do this," Westfall said. "He just snapped."

Thousands of complaints about aggressive dogs also are pouring in to the Harris County Sheriff's Office.

"We had 4,130 calls this past year in the unincorporated area, which is 5 percent more than the year before," said sheriff's spokesman Thomas Gilliland.

The dogs linked to the three recent deaths and many catastrophic injuries at Texas Children's were attributed to pit bull-type breeds that can include the American pit bull terrier, Staffordshire bull terrier, American Staffordshire terrier as well as sometimes American bulldogs and presa canarios.

Colleen Lynn, who heads a national dog-bite victim group based in Austin, said 71 percent of the 31 dog-bite deaths recorded across the U.S. last year involved pit bull-type dogs.

This is an area where victims are seeking to use sweeping criminal laws to effect deterrence that would be much better achieved through a more robust civil justice system. Owners of aggressive dogs that attack someone have no "mens rea," or criminal intent,  which in generations past was the bright-line distinction dividing criminal law and civil liability. But by the 21st century, that distinction had been muddied through overcriminalization and the expansion of criminal law to supplant other types of regulation.

Meanwhile, while we all feel terrible for the 31 people killed in dog attacks last year (22 by pits and their mixes, according to the story), there are an estimated 3.5 million or so pits and pit mixes in the United States, making them one of the more popular breeds. Also, people get bitten by dogs a lot, and mostly not by pit-associated breeds. About 1.5% of the American public is bit by a dog each year, with one in six bites requiring medical attention. So in practice, a breed-specific ban won't address most dog bites, and most dogs subject to it would be unlikely to ever seriously harm anyone.

Americans are prone to demonize dog breeds almost as a fetish, and at any given point in time the folks who worry about dangerous dogs always seem to have some waxing bogeyman to critique. After WWII, German Shepherds were the most feared attack dog. In the '60s,  a movie starring James Garner titled "They Always Kill Their Masters" helped shift that scare-focus to Dobermans. And in recent years, urban dog fighting culture, a la Michael Vick, has shifted similar concern to pits.

But most pits (or Dobermans, or German Shepherds) aren't a serious threat, while any dog that's mistreated, neglected, or afraid can become dangerous. I happen to own three dogs, two of which would be characterized as pit-mixes. All three came to us essentially through rescue type scenarios - the pits from a young, since-incarcerated idiot who had bought them, but never trained them, to fight. Of the three, the only one I worry about biting anybody is the much smaller, non-pit mutt (a mix of Chow, German Shepherd, and some sort of much-smaller terrier breed, at least). The bigger dogs are a greater danger to lick you to death. Moreover, when they're around anyone  they don't know, small children, etc., I make sure I closely control them, in part because of the extreme prejudice aimed at pits. As a practical  matter, they pose little risk to anyone.

By contrast, in my neighborhood in Central East Austin, there have always been people who chain aggressive dogs outside or in some cases train them to fight. (Until the area began to gentrify and white people began to complain, we didn't see animal enforcement here much.) Any one of those chained dogs - regardless of breed - is more dangerous than any of my animals. As "Dog Whisperer" Cesar Milan wrote recently on the subject, "a breed is like a suit of clothes, it doesn’t tell you anything about the dog inside." One of Michael Vick's fighting pits actually ended up being trained and certified as a therapy dog (for which, it merits mention, pits are temperamentally well-suited). In a proper environment, these are loyal and submissive animals with big hearts, while in the wrong environment, any dog can become a danger.

To me, the idea that the government would ban or euthanize my dogs based on such long odds of tragedy borders on demonical. My dogs are my friends, my family - like this poor fellow, I'd feel incredibly guilty and sad if I ever acted on such busy-body advice to kill them. Milan says that he rehabilitates animals but trains people, and IMO irresponsible humans (and perhaps increased rates of reporting) are the proximate cause for the rise in dog-bites, not pits in general, and certainly not mine. Legislators should seek methods besides breed bans and criminal enforcement to counter the problem, and encourage victims to avail themselves of the civil justice system. In the meantime, though, keep your paws off my dogs.

Mass incarceration and the limits of "the new Jim Crow" analogy

I just finished reading an excellent essay by Yale law prof James Forman Jr., the son of a legendary civil rights pioneer, critiquing the view of mass incarceration as "the new Jim Crow," a phrase recently popularized by Michelle Alexander's book by that name. Here's the abstract from Forman's essay:

In the five decades since black Americans won their civil rights, hundreds of thousands have lost their liberty. Blacks now make up a larger portion of the prison population than they did at the time of Brown v. Board of Education, and their lifetime risk of incarceration has doubled. Mass incarceration’s racial dimensions have led an emerging group of scholars to call the American criminal justice system a new form of Jim Crow. This Article examines the New Jim Crow analogy. I begin by pointing out that the analogy is extraordinarily compelling in some respects — for example, the analogy effectively draws attention to the injustices created by a facially race-neutral system that severely ostracizes offenders and stigmatizes young, poor black men as criminals.

But despite its contributions, the Jim Crow analogy ultimately leads to a distorted view of mass incarceration. First, the Jim Crow analogy oversimplifies the origins of mass incarceration by highlighting the role of politicians seeking to exploit racial fears while minimizing other historical factors. Second, the analogy has too little to say about black attitudes towards crime and punishment, masking the nature and extent of black support for punitive crime policy. Third, the analogy’s exclusive focus on the War on Drugs diverts our attention from violent crime — a troubling oversight given the toll that violence takes on low-income black communities and the fact that violent offenders make up a plurality of the prison population. Fourth, the Jim Crow analogy obscures the fact that mass incarceration’s impact has been almost exclusively concentrated among the most disadvantaged African-Americans. Fifth, the analogy draws our attention away from the harms that mass incarceration inflicts on other racial groups, including whites and Hispanics. Finally, the analogy diminishes our understanding of the particular harms associated with the old Jim Crow.

Forman expresses a number of nagging notions that have dogged your correspondent since Alexander's book was published, and articulates how a racialized focus contributes to misunderstanding the problem. His analysis, with few exceptions, to me seems spot on. First-rate stuff: Lengthy but well worth the read for reformers seeking to understand mass incarceration and how to reduce its scale.

TDCJ board chair: Future prison closures possible

Reader Texas Maverick emails to point out this passage from the board minutes (pdf) of the Texas Department of Criminal Justice's August 2011 meeting:

Chairman [Oliver] Bell commented that the closure of the Central Unit has been a positive story and stated he was pleased the current trends have allowed the board and the TDCJ to be able to close a unit. The Central Unit has been studied for closure for the last six to eight years. Crime rates are down and offender populations are relatively flat. If the trends continue, Chairman Bell stated it might be possible more prisons could close in the future.

TDCJ executive director Brad Livinsgston told the board that "the closure of the Central Unit is a success story that the TDCJ can tout." I'm glad that's the board's perception. Given the budget situation, they'll need more of the same in 2013 to avoid prison costs spurring significant tax hikes.

Jail standards commission: Bexar jail understaffed

In the debate between the Bexar County Commissioners Court and the Sheriff over whether the jail is adequately staffed, the state Commission on Jail Standards this week came out with an estimate siding with the Sheriff to say current staffing levels are insufficient without using overtime. Reported the SA Express-News ("State says jail needs additional staff," Feb. 1):

A staffing analysis of Bexar County Jail, recently completed by the Texas Commission on Jail Standards, supports Sheriff Amadeo Ortiz's contention that the jail is understaffed, officials said in a news conference Tuesday.

To meet state standards, 801 jailers are required for the jail's current population of about 3,600 inmates, according to the analysis.

An additional 121 uniformed officers are needed to fill what commission Director Adan Muñoz said were essential positions to “operate an efficient facility,” but they aren't required by the state.

The total number of officers needed at the jail, based on the analysis, is 922, which is 92 positions more than Bexar County budgeted for the 2011-2012 fiscal year.

In an interview, County Manager David Smith dismissed the analysis and repeated his call for a study by an independent third party.

If county commissioners don't accept the state commission's findings and adjust the budget accordingly, Muñoz said, the jail “would probably be in noncompliance” for failing to meet the state's minimum jail standards.

“Hardly ever have we been far off from an estimate on how a county should run its jail,” said Muñoz, whose agency was asked by Ortiz to conduct the analysis.

Last week, the state agency conducted an annual inspection of the jail, which passed. The inspection focuses on the required ratio of one officer to 48 inmates, but Ortiz said the facility only passed because officers are working mandatory overtime.

From December 2010 to December 2011, Ortiz said, he approved 41,000 hours of overtime, and he spent $1.2 million in overtime for fiscal year 2010-2011.

He said he plans to stop forcing officers to work overtime soon and will ask the Commissioners Court to accept the analysis and make appropriate staffing changes.

Staffing costs generally are driven by the jail population, which requires at least one guard per 48 inmates. In theory, de-incarceration reduces expenses, but reliance on overtime means the county is paying a 50% premium on core labor costs. I don't understand why reducing the jail population at the Bexar County Jail hasn't reduced staffing needs, but Grits will be surprised if an independent analysis comes in too far below the TCJS estimate of how many jailers are needed.

See related Grits posts:

• Bexar commissioners wonder why 1,000 fewer prisoners brings no budget savings
• Bexar jail personnel problems glaring
• Reduced jail population spurs budget, staffing cuts at Bexar jail, but do they go too far?

UTMB begins "transfer" of prison health services to TDCJ; are they up to it?

At the Galveston Daily News, Heber Taylor reports that, despite months of negotiation between the Texas Department of Criminal Justice and the UT Medical Branch (UTMB) over providing inmate health care:

there is no agreement.

Dr. David L. Callender, president of the medical branch, let the staff know that the transition has begun to transfer the health services to the corrections department.

The basic problem is money.

The University of Texas System has made it clear its not going to continue to subsidize care for prisoners from university funds.

The Texas Department of Criminal Justice didn’t get the money from the legislature to pay the full cost of the care.

This is not the kind of problem two state agencies can resolve.

Somebody with money simply has to pay the bill.

Ordinary taxpayers should be watching this because the state’s not going to save money by taking the Correctional Managed Care Contract away from the medical branch.

This arrangement is still a good fit in terms of controlling costs. Finding the money to pay for this contract would be cheaper than starting over again with new contractors. 

I don't necessarily believe TDCJ is prepared to take over prisoner healthcare, either from a financial nor a management perspective. Nor did I understand the failure of legislative leadership that allowed this festering problem to linger beyond last session, when it was already coming to a head. Taylor's right - this isn't an issue two state agencies can negotiate away.

In truth, after UTMB was basically told by Senate budget writers they shouldn't end the contract, I'm surprised the university feels they have the authority to back out. They're definitely thumbing their nose at Senate Finance Chairman Steve Ogden, perhaps because he's retiring from the Lege this term and won't be around to haunt them in 2013 for their defiance. (After all the Aggie senator did for UTMB after Hurricane Ike, it's particularly a slap in the face.)

Meanwhile, privatization isn't really an option, either, at current funding levels, even if that's the Governor's preferred option. Various companies (and UTMB, for that matter) want the hospital contract, which is more lucrative, but nobody really wants to contract for clinic-level care unless the Lege ponies up more money.

Bottom line: The Lege this year cut the prison health budget but failed to reduce incarceration levels, meaning demand for services wasn't commensurately cut. Texas already has among the lowest per-prisoner health expenses in the country and it's unlikely the budget can be lowered as long as we incarcerate nearly 160,000 people. The cost of overincarceration has finally caught up with Texas, and the expense is greater, even, than just TDCJ's budget.

This is a fish-or-cut-bait moment. Before next session, the state must decide how to deliver prison healthcare on a shortchanged budget. But when the Lege meets again in 2013, to avoid nine figures in additional expenditures at TDCJ, they must change policies to reduce the number of people incarcerated. Any other option will yield the same untenable result as the last budget, magnified several-fold.

Dallas jail population dropping as crime declines

The Dallas County Jail right now houses roughly 7,800 inmates, according to comments by the Dallas County Sheriff's Office to the Texas Commission on Jail Standards this morning, down from more than 10,000 at its height. That's more than a 22% reduction, but even that may be low-balled. According to the most recent TCJS jail population report (pdf), as of Jan. 1 the Dallas Jail had just 5,741 inmates, which would amount to more than a 40% reduction, from the 10,000+ max.

This news comes on the heels of reports that Harris County (Houston) has 31% fewer inmates than their maximum just a few years ago, while the Bexar County Jail population is down 22% from its height. In all three counties, crime has dropped significantly throughout the period that jail populations went down.

Kitchen culture behind bars

Several female inmates from TDCJ's Mountain View unit have published a prisoner cookbook describing methods for (sometimes illegally) cooking with commissary items. Interesting.

'Sending a message' on graffiti: Two approaches

Regular readers know Grits thinks "sending a message" though criminal penalties is one of the worst communication methods imaginable. Almost no one actually reads the laws, the media never reports on most of them, and when they do they get things wrong 1/3 to 1/2 the time. Besides, few criminals read the newspaper. If you want to "send a message," in general buying billboard space or TV time is a far superior method to any criminal-law one might pass, and that goes triple for crimes with very low clearance rates. Which brings us to two recent stories about "sending a message" regarding graffiti. The first arises out of Corpus Christi, where local officials have been obsessed with graffiti enforcement now for several years now, to little practical effect judging from continued public outcries and media hype over the problem. A story from KVII-TV this week made the "send a message" goal explicit:

As the war on graffiti vandalism rages, a word of warning from the people who's job it is prosecute taggers.  They say you will be caught, arrested and more than likely will go to prison.  It's the type of vandalism that's more than just a costly nuisance.  It's a crime.  Prosecutors want to send out a message to all "taggers" reminding them that this crime will get you prison time.

"You have to be held accountable for what you do...and that's why you're going to be doing time behind bars," says prosecutor Joe Mike Pena.

The problem with that message is that much of it is a bold-faced lie, particularly the contention that "you will be caught, arrested and more than likely will go to prison." At least for 99.9% of graffiti crimes (less than one tagger is arrested per 1,000 offenses), the overwhelming majority of offenses go unsolved and are not prosecuted.

How likely is it that taggers will go to prison? According to the Criminal Justice Impact Statement for a recent graffiti enhancement bill (discussed in this Grits post): "In fiscal year 2010, 212 offenders were placed on misdemeanor community supervision, 56 offenders were placed on felony community supervision, and 21 offenders were admitted to prison or state jail." So that's 289 people total convicted and sentenced for graffiti crimes in FY 2010 statewide, most of them juveniles. By contrast, there were hundreds of thousands of tags thrown up in Texas in 2010. The chances of getting caught and convicted are, in fact, minuscule. And even for those convicted, most of them (rightly) received misdemeanor probation, with just 7% going to prison. (mostly those who tagged a church, school, or community center, which now carries an automatic state jail felony charge).

Two recurring Grits themes are that heightened criminal penalties can't solve every social problem and that penalty enhancements have little effect on crimes with low clearance rates. Both observations apply in spades to graffiti crimes. The "message" sent by jacking up punishments for the handful of people caught is not only rarely delivered, it's in some ways a counterproductive one, serving to glamorize the activity for rebellious youth without actually solving the problem.

Meanwhile, a different and far more effectively delivered message about graffiti is being trumpeted in Dallas, where graffiti artist Shepard Fairey (the man who did the Obama Hope posters and was featured in Banksy's Exit Through the Gift Shop) has been hired to paint a dozen large, outdoor murals. Reports the Morning News (behind paywall):

Fairey and his team fly in on Sunday and begin scouting 12 to 15 locations on Monday before pulling out the paintbrushes on Tuesday. The end result will be at least a dozen giant murals (with one stretching 150 feet wide) in such communities as West Dallas, Oak Cliff and Deep Ellum. Highland Park is not on the list.

Dallas Contemporary, which revels in the edginess of Fairey’s art, commissioned the project. Its director, Peter Doroshenko, loves Fairey’s ability to provoke reaction, no matter where his eerily bold images leave their imprint.

Aside from two events feting Fairey, none of his art will be shown at the Design District museum, even as it foots the bill for the outdoor murals.

“We’re doing this project to go beyond our walls, our building,” says Doroshenko, who came to Dallas Contemporary 14 months ago and worked with Fairey on a project in the United Kingdom in 2006.

Doroshenko cites Fairey as one of several artists he hopes to bring to Dallas “who work in nontraditional or outdoor kinds of ways, so that you don’t have to travel to Toulouse or Tunisia to see their work. It’s here, in the city, where it will reach millions of people as they drive by on the freeway or on their way to work.” Fairey loves having an outdoor canvas, Doroshenko says, rather than having to confine his work to a museum. Fairey, like Doroshenko, revels in the notion of “adding art to a person’s everyday repertoire.”

Doroshenko calls the project “giving back to the community and on a grand scale.” He says he picked Fairey not just because he knows him but also because “all the street artists that work in Dallas or Texas are influenced by him.” Even city officials and private landlords have come to appreciate what Doroshenko calls Fairey’s “art intervention” in their communities.

This turn of events reminds me of a Grits headline from 2010: "Yesterday's graffiti is today's art and tomorrow's economic growth." Fairey's illegal tagging hobby has transformed him into an internationally known artist whose talents are so well recognized that he's now being paid (in Texas, no less) to do projects for which he previously would have been prosecuted.

So in Corpus Christi, prosecutors hope to "send a message" by prosecuting the one out of a thousand or so offenses where taggers are caught, while in Dallas they're sending a message with 150' wide murals that graffiti can be real art and that some graff writers must be viewed as true artists, worthy of the admiration of their peers.

Which "message" do you suppose will influence taggers more?

See related Grits posts:

• Toward a restorative graffiti policy
• Graffiti solutions: A cost-benefit analysis
• Texas 'students do without art' but streets still open to graff writers
• Best ever graffiti prophylactic: 'We're going to get this kid a job'
• What exactly is so great about a plain grey wall?
• New Dallas graffiti czar looking past criminal justice approaches
• Kids do less art in school, more in street, Lege reacts with hammer
• Creating public spaces for invited art adds carrot to stick of banning uninvited graff
• Invited graffiti: Solution or enabling for unwanted tags?
• Paint responsibly: Museum offers hands-on graffiti exhibit
• Allowing invited graff best way to reduce unwanted graffiti
• Austin lags on important third component of graffiti policy
• Mexico prevents graffiti by encouraging it at El Azteca Stadium
• Moscow turns to invited graffiti to liven up Soviet era buildings