Thursday, March 05, 2015

Give the gift of criminal justice reform

Gentle readers, I hope you'll allow me this point of personal privilege, offered at the behest of a friend ...

The Texas Criminal Justice Coalition is participating in "Amplify Austin" - 24 hours of fundraising for Austin based nonprofits. If you support criminal justice reform in Texas, go here to donate. For anyone who hopes to improve the state's criminal justice system, your investment couldn't go to a better place. Unlike groups with a national agenda, TCJC works exclusively for what's best for Texas, a distinction which matters more than you might think. National groups' agendas don't always translate here.

TCJC has been at the center of reform efforts in this state for 15 years and I've worked with and for them on and off since the beginning. (Disclaimer: most recently, I've been employed as a consultant for the group since last summer.)

Some of their most important work has gone relatively unheralded. They've taken the lead seeking to end the Driver Responsibility surcharge.  For many years (before the state took it over) their indefatigable Molly Totman operated a de facto repository for the state's racial profiling reports, and the group's regularly published "grades" gave some police agencies incentive to improve. Dr. Ana Yañez Correa, their executive director, is somebody I'm immensely proud of; she has sacrificed immensely to build this organization. Here's their 2015 legislative agenda.

Other groups working on criminal justice topics over the last decade and a half in Texas have ebbed and flowed, often flashing into existence then fading just as fast. TCJC has not just remained but thrived and grown, contributing much needed stability, experience, and leadership to an effort that, by it's nature, is a long-haul endeavor. What TCJC brings to the table is unique, important, and worthy of support.

Please give generously if you're able in this one-day Amplify Austin fundraising effort. In fact, my suggestion would be to imagine what you would consider a generous gift, double it, then give that.

Thanks in advance. I try not to use the blog or these purposes often, but this particular cause is worth it.

Pragmatic arguments the strongest for 'raise the age' proposal

In politics, wisdom counsels humility when one's opponents make true, valid arguments undermining one's position. So let's acknowledge the truth of criticisms regarding the proposal to raise the age of criminal culpability in Texas from 17 to 18, a measure endorsed in the House Criminal Jurisprudence Committee's interim report.

Over at the Texas Tribune, the Marshall Project's Maurice Chammah has a feature story on the topic. Like an Austin Statesman editorial earlier this week, Chammah pins the bill's fate largely on the shoulders of Senate Criminal Justice Committee John Whitmire, a critic of the idea who recently told the Houston Chronicle, "I think at 17 you should know right from wrong.”

And you know what? Whitmire's right. I laughed aloud when I read that quote, not at the senator but at my own expense. A couple of weekends ago, my granddaughter was visiting. Following an uncharacteristically rude display toward another child, and a self aggrandizing attempt to justify it, I told her, near verbatim, "You are eight years old, you know right from wrong." And so admonished, she trundled back to issue a half-hearted apology to the slighted party.

So I'm not one to accept such excuses from kids. If I won't tolerate it from an eight year old, I've even less sympathy when you're 17 (barring mental illness or developmental disabilities). But to me, that's beside the point.

At 17, the issue isn't whether you know right from wrong, it's that you think you're right about everything, even if you're profoundly wrong. A combination of incomplete brain development and a lack of personal experience combine to create a strongly held but myopic worldview (a.k.a., immaturity).

But the most compelling reasons Texas should "raise the age" have nothing to do with one's sympathy for the defendants. Being out of kilter with federal law creates looming, practical problems: For example, Texas county jails face potentially budget busting civil litigation if they fail to comply with the strictures of the Prison Rape Elimination Act, which would require adult jails to renovate and staff up portions of their facilities where 17 year olds are held to meet the more stringent juvie standards.

Numerous other situations arise, big and small, where the disjuncture between state and federal law creates problems for front-line practitioners. In recent years, perhaps the most prominent example has been on capital punishment, where Texas having a different age from the feds has created tremendous, ongoing legal complications. The law would be cleaner and simpler if state and federal law were in synch.

Finally, I think most voters will find the normative argument put forward by the Houston Chronicle compelling: “In Texas, you have to be 21 to apply for a concealed handgun, 18 to play the lottery and 18 to get a body piercing without a parent’s consent. Yet a nearly century-old Texas law treats a 17-year-old who shoplifts an iPhone as an adult criminal.” When you can be charged with a felony as an adult but still aren't old enough to get your ears pierced without parental permission, something's amiss.

Prosecutors can always seek to certify 17 year olds as adults if they commit very serious crimes. But for the workaday stuff, it makes more sense to treat them through the juvenile system, just like the overwhelming majority of other states and prevailing federal law. Not because they don't know right from wrong, but because we do.

Fighting unconstitutional taxes disguised as court fees

Emily DePrang at the Texas Observer has filed a report on former GOP Court of Criminal Appeals candidate Jani Wood's laudable crusade against unfair and unconstitutional court fees. Her latest victory proved the state's "DNA record fee" is an unconstitutional tax. Read the whole thing.

NPR last year ran an extensive series on court fees, see:
See also prior Grits coverage of Ms. Wood's court-cost litigation:

Wednesday, March 04, 2015

Analyzing legislation to reform Texas sex-offender civil commitment program.

When Senate Criminal Justice Committee Chairman John Whitmire filed SB 746 revamping Texas' civil commitment program aimed at sexually violent predators, Grits tried in vain to grok the ins and outs of all the changes and their import from the text and quickly found it made my head hurt. So I emailed Nancy Bunin - an attorney in Houston who works on these cases and who has been involved with advocating for reforming the program - asking her to explain what the bill did, how it addressed the problems reported extensively in the Houston Chronicle and elsewhere, and what remains to be done. She graciously replied today with a detailed and candid response. I'm immensely grateful for her taking the time. Find her analysis below the jump.

Houston PD conceals Stingray use details from prosecutors, citing NDA; warrant for cell-phone location data bill filed

"For about seven years, the Houston Police Department has owned devices that can trick your cellphone into sharing its location and call log by pretending to be a cell tower," reported Karen Chen at the Houston Chronicle (Feb. 27).
But little is known about how they are deployed, only what they are capable of: telling law enforcement where you are and to whom you've been talking.

In Texas, police are not required to obtain a warrant before using a Stingray, and the net is indiscriminate. The devices sweep up all nearby information, regardless of whether the cellphone is involved in a crime.
Your correspondent was quoted briefly in the story. The most interesting news was something told to me several weeks ago by the Harris DA's office, but made public in this story for the first time: That the Houston PD refuses to tell even the District Attorney's office, much less local judges, what they're doing with this technology, citing a non-disclosure agreement with the Harris Corporation which makes the device. 
Harris County prosecutor Bill Exley said the arrangement doesn't put people's minds at ease. As far as he is aware, Stingrays do not amount to wiretaps, which reveal the content of what's being communicated. That said, Exley said, the nondisclosure agreement has prevented him, too, from knowing what exactly Stingrays are capable of or being used for. He said he has never offered evidence in court that was produced by a Stingray.

HPD has told him that Stingrays are most useful in catching fugitives.

"If there's a warrant for your arrest, the cops should be able to do anything lawful to find you," Exley said. "The question becomes, at what level do you start requiring police officers to ask judges so they can do things they are otherwise legally able to do?"
Exley said as far as he knows the Stingrays aren't wiretapping. But the truth is, the Stingray captures private calls and routes them through a fake cell phone tower operated by the police, and that includes call content as well as metadata. So we have nothing but HPD's say so to support the assertion that they're not accessing content, it's not because the technology they have isn't capable of doing so. If "trust us, we're the government" is good enough for you, you ought to be okay with this.

In Florida, where much more has been made public about how law enforcement uses these devices, "agencies have been using stingrays thousands of times since at least 2007 to investigate crimes as small as a 911 hangup." For example, "A third of the listed stingray cases, in a list provided by the Tallahassee Police Department (TPD), show that the most frequently cited crimes were robbery, burglary, and theft." Most uses did not involve a warrant. The open records gurus at Muckrock.com have been tracking this topic: check out their latest missive, including examples from the NDAs between Harris Corp and local police departments. (This has garnered them fans at the FBI.)

In related news, State Rep. Bryan Hughes yesterday filed HB 2263 - a reprise of his HB 1608 last session which garnered 107 joint and coauthors in the House - which would require warrants for law enforcement to access cell phone location data, and there is interest (including among law enforcement interests) in potentially amending the bill language to include Stingrays (a trade name, the technical term is "IMSI catchers") before everything is said and done.

There's nothing wrong with law enforcement using the latest available technology, where appropriate, but there's also nothing wrong with judges exercising oversight over its use to ensure that new technological advances don't unwittingly dissolve old constitutional protections.

Regulators cited Montgomery jail for failing to provide timely care in inmate death

Reported the Houston Chronicle, "Montgomery County officials are moving to improve medical services at the county jail after a state commission found it had failed to provide timely care to an ailing inmate who later died of natural causes."

Specifically, "The Texas Commission on Jail Standards found the jail to be out of compliance with state standards on Feb. 9, following the death of inmate David Courtney in December." Here's the citation for not providing "efficient and prompt medical care for acute situations."

'Rules to keep federal prosecutors in line revealed'

The title of this post is the headline of a USA Today report on federal prosecutors' written discovery guidelines implemented after high profile Brady violations several years ago. They got written policies under the Freedom of Information Act from many federal districts, including all of them in Texas:

Uptick in retirements casts shade on aggressive DPS hiring estimates

Another complication for the massive proposed DPS hiring boom to staff up the border was raised at a hearing yesterday, as reported in the Austin Statesman:
the recruiting effort looks to be complicated by a higher-than-normal number of troopers expected to retire over the next two years, which also will increase pressure to hire police officers from local departments as those officers’ DPS training is far shorter because they are already certified peace officers. ...

DPS Director Steve McCraw told the budget-writing committee Tuesday that hiring 250 new troopers is achievable by the fall of 2017. But he said the one big “wild card” is how many troopers will retire over the two-year budget cycle.

About 440 troopers are expected to do so, according to the Legislative Budget Board. That means DPS would have to hire 690 new officers to achieve a net gain of 250, which Otto said is not possible if the state sticks to its normal recruiting method.

Budget board analyst John Wielmaker told the committee the projected increase in retirements is due to the pay raises lawmakers gave to state law enforcement in 2013, which created an incentive for troopers who would have otherwise retired to keep working as their pension annuities are based on their final salaries. The trend has occurred in the past, he noted.

Asked by state Rep. John Raney about the link between the projected retirement wave and DPS needing to directly recruit officers from other agencies, Wielmaker told the College Station Republican that, “the agency would be very hard pressed based upon historical experience to add 690 troopers in two years without some other factors, including what you just mentioned.”
So, to the math: DPS is presently 243 troopers understaffed, wants to expand the total force by 500 beyond the current, budgeted number (250 of those coming in the 2016-17 biennium), and will lose 440 troopers to retirement in the next biennium. So the state would have to hire 933 troopers to reach its goal for the next biennium, with another 250 in the pipeline by 2019.

Regular trooper cadet classes graduate around 100 or so troopers, Steve McCraw told the House Special Committee on Emerging Law Enforcement issues last week, though the class expected to graduate in June will include only 56, bringing the number of unfilled positions down from 243 to 187. Cadet classes last 20 weeks and DPS will do three instead of two next biennium to fill these new extra slots.

For the rest, DPS has estimated it will cost $13.7 million per biennium per 40 person recruitment class for "lateral hires" poached from local police and sheriff's departments, but DPS only plans to hold six of those 8-week academies, which would bring in 240 extra, new troopers.

So where do the rest come from?

Tuesday, March 03, 2015

Senate bill would restrict DPS to gathering thumbprints at license renewals

State Sen. Charles Schwertner has a good bill (SB 398) up tomorrow in the Senate Transportation Committee clarifying the statute which the Department of Public Safety had interpreted broadly to claim they could gather all ten fingerprints when Texans renewed their drivers licenses. Schwertner's bill leaves DPS' authority where it was after the last time the Legislature considered this issue in 2003 and 2005: thumbprints only, or the index finger if thumbprints cannot be taken.

Make me Philospher King and Grits would probably rescind the gathering of thumbprints, too, but I do admit that the ability to match thumbprints contributes to preventing drivers license fraud. That's why I was satisfied, if not entirely pleased, with the 2005 compromise. DPS' unilateral decision to start gathering all ten fingerprints demonstrates the slippery-slope risk whenever such authority is granted. Thumbprints gathered for the purposes of verifying drivers license information shouldn't metastasize into a statewide fingerprint database including people who never committed crimes. This bill at least preserves the compromise cut in 2003-5 on these topics.

Border budget may top a billion; local enmity rising over DPS poaching veteran police

The Texas Department of Public Safety this morning told the the House Appropriations Committee that it would like to stage six additional cadet classes in the coming biennium for "lateral hires" who previously worked for a local law enforcement agency at least four years. Each such cadet class would add $13.7 million for the biennium to put 40 officers on the beat, plus more in the out years to pay for wages, retirement, equipment, etc..

Rep. Cindy Burkett roughly calculated that would amount to around $40,000 per trooper per week, a figure which DPS Col. Steve McCraw did not dispute. He and the support staff with him attributed the cost to both the training expenses and the cost of equipping additional troopers with vehicles, weapons, computer equipment, etc.. He also noted that "lateral hires" would begin their service at a much higher pay grade than entry level troopers, substantially increasing the cost. The cost figures include troopers' pay and support through the end of the biennium in addition to their time in the academy.

McCraw mentioned again that local police and Sheriff's offices had expressed displeasure at DPS for poaching experienced officers, some of them less than cordially. DPS has only ever done a "lateral hire" cadet class once before and fewer than 30 troopers graduated. Regular entry-level cadet classes graduate more than 100 new troopers.

These new troopers are part of an expanded border security proposal unveiled in the House yesterday whose price tag will overshadow even the budget busting $815 million proposal in the Senate, likely approaching or exceeding a billion dollars. The House plan was unveiled yesterday when:
More than 30 House members, along with local officials from the border, stood up at a Capitol news conference behind what they cast as a bipartisan, wide-reaching and permanent solution to enhance safety along the border and throughout Texas.

The push — outlined in three bills — would add state police to the border, use retired state troopers to assist police work, toughen penalties for smugglers, build southbound checkpoints and create a border prosecution unit, among other things.
See MSM coverage from the press conference:
Meanwhile, the Texas Observer's Melissa del Bosque has written one of the first comprehensive journalistic critiques of the border buildup over the last nine months, suggesting that "The rush to militarize the U.S.-Mexico border has tragic consequences for Texas." Go read the whole thing, she's providing perspective on these issues that's sorely lacking in debates at the Texas capitol the last week or two.

Just a quick thought re: The National Guard. As the Statesman reported, "The rough plan now, as outlined by Gov. Greg Abbott, is to keep the guardsmen there until the Department of Public Safety can hire more troopers and handle the operation on its own." But Col. McCraw today reiterated that it would take four years for DPS to fully hire, train and deploy 500 new troopers, in addition to filling the 243 trooper vacancies on the books right now. It seems incredible/irresponsible to imagine Texas would continue to deploy the National Guard for that long, but that's where the debate stands at the moment.

See recent, related Grits posts:

Simpson: Christians would regulate pot like tomatoes, jalapeños

Not only should Texas legalize pot, says a state legislator from East Texas, it should forego any special tax-and-regulate regimen and simply allow pot to be sold and taxed like any other agricultural commodity.

Longview state Rep. David Simpson has filed HB 2165 which would eliminate all state-level legal prohibitions against marijuana, leaving the plant regulated in Texas similar to "tomatoes, jalapeños, and coffee," reported KETK-TV. Simpson authored a column yesterday announcing the bill on TribTalk titled "The Christian Case for Marijuana Reform." That remarkable item concluded:
Should we be concerned for our friends and neighbors who abuse a substance or activity? Yes, we should help them through sincere and voluntary engagement, but not with force and violence.

Is there a place for prohibition? Yes, a prohibition of aggression (Romans 13). Our laws should prohibit and penalize violent acts. This is the jurisdiction of the magistrates under the new covenant — harm to one’s neighbor.

Civil government should value everything God made and leave people alone unless they meddle with their neighbor.
This ain't your Daddy's Republican Party, folks. The comments reacting to coverage of the bill from Breitbart News demonstrate some of the ideological fault lines within the party over libertarian causes like this one.

Monday, March 02, 2015

Rinaldi: Stand Your Ground against 'unlawful' searches, detention

Texas House freshman Matt Rinaldi has filed a bold and inevitably controversial bill, HB 1168, which creates a defense to charges of resisting arrest, search, and detention if the underlying search or detention was "unlawful."

So resisting arrest would become permissible when a cop unlawfully searched or detained a suspect. See the very simple, straightforward bill language. A far narrower version, but similar in concept, backed by the NRA, passed in Indiana in 2012.

There are Democrats who want to hold cops accountable by authorizing (worthless, redundant) civilian review boards to second guess statutorily hamstrung departmental disciplinary processes. But leave it to a libertarian Republican to suggest that victims of illegal searches and seizures by police should be granted the right of front-line self defense!

Basically, this is a Stand Your Ground law aimed at the cops. And say what you will about the suggestion, it would probably be a greater deterrent to false arrests and Fourth Amdendment violations than Texas judges appear capable of acting post hoc.

Given Rinaldi's lowly freshman status and the fact that he backed the ill-fated Coup-That-Wasn't against the Speaker on opening day, it's hard to imagine legislation this big overcoming the storm of law enforcement opposition that surely awaits it if the Legislature were ever to appear to take it seriously. But his suggestion gets to the core of the debate over police accountability more directly and viscerally than proposals for bodycams or civilian review boards.

If only because the debate should be immensely entertaining, Grits hopes Rinaldi's bill at least gets a hearing, perhaps considered in the context of a range of other approaches to police accountability. If nothing else, this bill sends a message that Texans are serious about putting an end to unaccountable police misconduct.

Sunday, March 01, 2015

Willacy County facing economic devastation after riot at entrepreneurial private prison leaves unit 'uninhabitable'

Riots in Willacy County at a private prison housing federal immigration prisoners last week has been called "predictable" and has left the facility "uninhabitable." Texas Prison Bidness reminded us that "An ACLU report [last year] detailed squalid conditions, rampant abuse, and little to no medical care at the facility."

The detention center is run by the Management and Training Corporation, which operates ten other facilities around the state, employed 373 workers at the site, about half of whom live in the Raymondville and Willacy County areas while the rest live across the Rio Grande Valley." Those folks are now looking for work. According to the McAllen Monitor, "The prison pays [Willacy County] for every inmate it holds, pumping more than $2.7 million into county coffers last year." In addition, "In Raymondville, City Manager Eleazar Garcia said the prison’s closure could mean the loss of about $50,000 a month in water sales in the city whose annual budget projected about $3.6 million in water revenue." Observed the SA Express News:
The Willacy County economy is deeply dependent on the prison industry, floating tens of millions of dollars in bonds through a “Public Facilities Corp.” to build the Correctional Center. The county also has a 500-bed detention center operated by MTC under a U.S. Marshals contract, and a 1,000-bed state jail, operated by Corrections Corp. of America.

Each of the more than 2,800 prisoners in the Willacy correctional facility puts $2.50 per day in county coffers, adding up to about a quarter of its yearly budget of $8.1 million. It’s unclear who will be ultimately responsible for repairs to the building or how soon prisoners will return, if at all, leading some officials to worry the county could soon be faced with a budget shortfall.
Further, "The county owes about $63 million on the prison that opened in 2006," according to the county auditor, but the commissioners court claims "bond holders would assume any risk." That's a bit of fanciful thinking of which I'm sure the good folks in McLennan County could dissuade them, if anyone has ears to listen. Or, maybe they'll listen to S&P, which just downgraded the county's bond rating because of episode.

As an aside, there may be other jurisdictions salivating to house these prisoners and take advantage of MTC's woes, but be forewarned. The feds (ICE) have already begun assenting to bail in immigration cases for the first time in recent memory, perhaps in part in response to bed shortages in the system from the Willacy riot but more probably in reaction to a recent federal judge's ruling, still under review by the agency, ordering ICE to "stop denying bond to Central American families solely to deter more immigration." So the feds may yet figure out how how to absorb this group without doling out new contracts to other vendors.

Ted Cruz's Great Pot Flip Flop

Someone apparently, finally told Texas' Sen. Ted Cruz that Colorado is a swing state in presidential elections, because he's flip flopped on whether the state should be allowed to legalize pot without an act of Congress.

Last year he said Colorado's experiment was "fundamentally dangerous to the liberty of the people." Now, he says he views legal pot in Colorado as the "embodiment of what Supreme Court Justice Louis Brandeis called the laboratories of democracy," though he emphasized that he disagrees with their choice.

At least he's flip flopping in a pro-Tenth Amendment direction. One day, perhaps our junior senator will utter an opinion with relevance to Texas. He appears to spend neither much time nor attention in the state since beating David Dewhurst, but every time I turn around he's giving speeches in Iowa, South Carolina, Colorado. He's ignoring Texas to such an extent that a Wisconsin governor could beat him here in the 2016 presidential primary.

But at least he's taken the time to adopt both sides of the issue on federal pre-emption of drug laws in a jurisdiction he doesn't represent. That was certainly a productive use of political capital.

Saturday, February 28, 2015

DPS border 'surge' failed to reduce drug supplies, which increased

Let's bottom line the effectiveness of Texas' border security measures. DPS and the National Guard aren't immigration enforcers and they score no "apprehensions" following the overwhelming number of documented "detections" of illegal border crossings (53 out of 113,000). So from a law enforcement perspective, drug enforcement vs. the cartels is the main reason they're down there (even if most of the GOP base fails to grasp the distinction). Jeremy Schwartz at the Austin Statesman (Feb. 27) further demonstrated the futility of that effort when he reported that the DPS surge has had no impact on retail drug prices in Texas, at all, meaning DPS has done nothing to reduce drug supplies and the whole "surge" gambit has been a pointless fiasco.

Indeed, reported Schwartz, drug prices declined during this period, meaning availabilty of drugs increased in response to the DPS surge, or at least in spite of it.  This exchange from a recent Texas Senate Finance Committee meeting captured the seldom-spoken reality:
“Can you sit there and say there’s been a reduction of street drugs in any of our major metropolitan areas?” [state Sen. John] Whitmire continued.

“I can’t say there has been,” [DPS chief Steve] McCraw responded. “The challenge we have now with numbers on street cost, there’s no question that it’s a good indicator of whether we are succeeding or not.”
Instead, “'We’re not seeing any slowdown in supply,' said Greg Thrash, resident agent in charge of the Drug Enforcement Administration in Austin.' From the wholesale level, (illegal drug prices) are dropping like the price of gas (was).'”

Illegal drugs operate in an unfettered black market and their pricing reflects raw supply and demand. If prices are "dropping," more drug supply is entering the market, meaning DPS' "surge" not only didn't reduce drug trafficking, they presided over its statewide expansion with this misbegotten "Ready, Fire, Aim!" strategy.

See related Grits posts:

Friday, February 27, 2015

DPS: Surge will take four years to staff, apprehension rate abysmal on border crossings

Texas Gov. Greg Abbott has suggested hiring and sending 500 additional state troopers to the border. But Col. Steve McCraw of the Department of Public Safety told the House Committee on Emerging Law Enforcement Issues yesterday that it would take four years - two biennia - to deploy 500 troopers to the border. And before that happens, the agency presently has 243 vacant positions it needs to fill in addition to the 500. That number is expected to drop to 187 after the next cadet class graduates in June.

McCraw said he believes the agency can fill the 187 (though he was unable to fill budgeted trooper positions in the last several budgets), but the 500 troopers for the border would take "two biennia" to fill, he estimated. He hoped the agency could achieve 250-300 more troopers at the border by the end of the coming biennium (2017), but it would take until the end of the next (2019) to fully staff out 500 troopers at the border.

None of our politicians are saying publicly that the 500 troopers won't happen for four years. I wonder if the border surge will still be a thing by then? Will anyone really care after Barack Obama leaves office and isn't around to accept blame? Does this mean the National Guard will remain deployed until the rollout of 500 new troopers at the border is complete? ¿Quien sabe?

To achieve these lofty employment goals, the agency has implemented a "lateral hire" program that has some members of the Sheriff's Association unhappy, the committee was told. Cops with TCLEOSE certification can be hired on at DPS with only an 8-week stint at the academy instead of the 20 weeks required of regular cadets. The Sheriffs worry this will "decimate" their staffs because DPS pays more than most counties and their best officers are tempted to shift allegiances, particularly along the border where officers wouldn't have to move. McCraw was unapologetic, declaring that while it's "not our goal to decimate or irritate ... the Sheriff's Association in any way," it was his responsibility to quickly hire as many qualified individuals as he could and this was the quickest way to do it (read: "screw you local departments, we're taking your best guys").

McCraw also gave a metric I hadn't heard on the (in)effectiveness of DPS border cameras, estimating they'd generated about 113,000 "detections" of illegal crossings along the border and 53 "apprehensions" which generated 110 tons of drugs seized. That's a trivial rate given DPS' touting of its border mission as an unmitigated success. McCraw thinks the apprehension rate will improve if the Legislature would pay for "aviation assets" (read: drones) which would automatically deploy to the scene when cameras identified a border incursion. But of course, people still must be apprehended on the ground, so there's a functional limit to how effective "aviation assets" can be.

Coupled with downward reassessments of the amount of drugs seized and the extent to which DPS' surge reduced illegal border crossings, these paltry metrics on apprehensions attributable to border cameras contribute to a picture of ineffectiveness and overstated achievement from DPS' much ballyhooed surge. Who really thinks these activities are worth doubling down on with an additional $815 million in the next biennium?

One other interesting moment from McCraw's testimony piqued my attention: He said DPS existed since 1823, which would date it from 13 years before Texas' independence from Mexico! Usually one hears DPS' history dated to 1935; the Texas Rangers ostensibly date to Texas' pre-revolution Mexican era (their supposed predecessors, whose direct connection to the modern force is IMO tenuous at best, were mercenaries dubbed the milicia nacional by Stephen F. Austin, with the name Texas Rangers coined in 1874), so that's probably the reference. The lengthening of the organization's historical legacy in many ways typified all the agency's recent pronouncements, with every statement exaggerated at the margins and falling apart in the face of any serious, independent fact checking.

If this border surge policy were truly valid, they wouldn't have to spin the facts so hard to try to justify it.

Lies, damn lies and drug war statistics: DPS edition

The Austin American Statesman reported (Feb. 26) that the Texas Department of Public Safety inflated prices of seized drugs ten-fold just before issuing a pivotal report on its border "surge" to legislators. Reported  Kiah Collier and Jeremy Schwartz:
The agency now uses 2012 data based on national retail sales compiled by the White House; it previously had used 2014 Drug Enforcement wholesale prices specific to Texas.

As a result of the new accounting methodology, the agency said that more than $1.8 billion in illegal drugs had been seized during Operation Strong Safety, the state’s enhanced law enforcement effort in the Rio Grande Valley that began last summer.

Under its previous illegal drug price formula, the seizures would have been worth about $161 million, less than one-tenth of the figure presented to the Legislature and state leaders.
Experts in the story explained why the number DPS used previously is more accurate:
many criminologists say describing bulk seizures with retail-level prices presents a skewed picture of the value of the drugs when they were seized.

Peter Reuter, a senior economist with the RAND Corporation and criminology professor at the University of Maryland, said wholesale prices better measure the impact of the seizures on criminal organizations. “It’s more important to get a sense of the cost you have imposed on the traffickers,” he said. “But (higher retail prices) sound better. I don’t think it’s more complicated than that.”

Jonathan Caulkins, a professor of Operations Research and Public Policy at Carnegie Mellon University, said many law enforcement agencies use retail prices because they are higher, but that “it would be more logical to value at the replacement cost for the organization.”
Still, I think this gives a good baseline for evaluating DPS' assertions of success in its border surge. Take what they claim to have done, divide it by ten, and you'll come close to assessing the real impact of their spurious, redundant border work. The idea that Texas would spend $815 million more on this boondoggle beggars belief. But we're in a through-the-looking-glass moment when failure is success and money apparently is no object. It remains to be seen whether state leadership cares at all about how this money is spent. So far, they seem perfectly willing to throw good money after bad without, apparently, caring a whit about whether it's worth the bang for the buck.

RELATED: Border surge didn't cause drop in crossings.

Thursday, February 26, 2015

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Bill to ban probation for illegal immigrants likely DOA after devastating critique of (un)constitutionality

When state Sen. Joan Huffman, a former district judge, filed her SB 174 forbidding sentences of probation for "illegal aliens," Grits was dismissive, declaring the bill should be dead as soon as its Fiscal Note was calculated and the costs were determined.

It didn't take that long. The bill likely, effectively died night before last when the Houston Chronicle published an item on its website by Prof. Geoffrey Hoffman of the University of Houston Immigration Clinic titled "Houston senator's 'illegal aliens' bill is itself illegal." Hoffman offered up a devastating and IMO irreparable constitutional critique that Sen. Huffman seems unlikely to overcome.

While his discussion of federal case law was compelling, according to Hoffman, the Texas Constitution includes "arguably more expansive equal protection provisions," even, than the 14th Amendment to the US Constitution. The article concluded:
In section 3a, [the Texas Constitution] provides that "Equality under the law shall not be denied or abridged because of sex, race, color, creed" or - importantly - because of "national origin."

Furthermore, section 3 of the state's constitution provides for equal treatment under the law, considering that "All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments. …"

The Texas Legislature should carefully consider what a misguided rule like the one proposed in SB 174 would mean. Texas judges are not immigration judges. But even if they were, the determination whether or not someone should be branded an "illegal alien" is determined after a lengthy process by the Executive Office for Immigration Review, a branch of the U.S. Department of Justice.

The decision is made considering the availability of relief, after a full review of a person's personal and immigration history, among many other factors. A rule which brands people without due process, and in violation of equal protection, cannot stand.
That's a strong argument. The inclusion of "national origin" in Texas' equal protection guarantee seems to this non-attorney pretty much decisive. It's hard to see the Legislature seriously considering this bill now that these grave constitutional flaws have been exposed, especially given the sky-high fiscal note the idea would surely receive if the proposal ever got far enough along in the process for the LBB to determine its cost.

Don't get me wrong, The Texas Legislature passes unconstitutional stuff all the time. But usually they maintain plausible deniability about a bill's defects at least until after its effective date. In this case, SB 174's flaws have been exposed before its first hearing and the bill would have to be altered beyond recognition to avoid running afoul of the constitutional problems Mr. Hoffman identified. Well done, sir.

Bexar POs allegedly linked romantically to probationers

An investigation by WOAI radio in San Antonio:
uncovered a pattern at Bexar County's Adult Probation Department: officers becoming romantically involved with the defendants they're supposed to be monitoring.

Disciplinary records tell of one probation officer passing information to a defendant she friended on Facebook. A supervisor using his county cell phone to call and text a probationer day and night. And one officer trying to intervene to keep police from arresting her fiancé who was on probation. That last instance was caught on SAPD dash-cam video. It was after 1:00 a.m. on a March morning.
See more on the story.

And here's the kicker: This is arguably not the most embarrassing headline the department has faced in recent months.

House budget markup funds prison health below what's needed to meet 'minimum standards'

At the Texas House Corrections Committee meeting this morning, TDCJ chief Brad Livingston said the House budget markup on prison healthcare gave the agency $85 million of the $174.8 million extra that they said in their Legislative Appropriations Request (LAR) would be required to meet "minimum standards" in the coming biennium.

This news raises several questions which remain unasked after this morning's session: Which standards will TDCJ fail to meet under the budget scenario in the markup? Can that failure be quantified? What would that $89.8 million have paid for that the agency must do without if the House budget number stands? Given that it's presently operating at a lower budget level, is the agency meeting "minimum standards" right now?

That said, it's early in session, they were hustling through the agenda to adjourn before the full House convened, and most of the committee members including the chairman are new to these issues. They'll learn a lot more about correctional managed health care, I've little doubt, and gain a better understanding of what questions to ask as the session progresses.

Moreover, I was comforted to see the committee at their first meeting appeared open to continuing the reformist track that  John Whitmire and Jerry Madden sent the agency down beginning in 2007. Chairman Jim Murphy in his introductory remarks mentioned a serendipitous moment when, the morning after the Speaker asked him to become Corrections chair, his pre-scheduled Bible study included Hebrews 13:3, which admonished Christians to "Remember those in prison, as if you were there yourself. Remember also those being mistreated, as if you felt their pain in your own bodies." Let's face it, if one must choose a Bible verse to encapsulate a model attitude toward criminal justice, one could do worse.

Hacking ATMs with a $35 Raspberry Pi

The Raspberry Pi is a small computer, slightly larger than a credit card, which was created in the U.K. to teach kids computer coding and costs $25-35. It's a neat little board; I've got a couple of them sitting in my workshop as I write this and, along with Arduino boards out of Italy (and their myriad spawn), they are helping take both hobbyist and professional development of embedded electronics projects to astonishing new places.

But any tool can be used for good or ill, so I was fascinated to see this video on one of my favorite blogs demonstrating how an ATM can be hacked with an inexpensive Raspberry Pi board and a USB cable in two minutes and made to spit out cash. The biggest catch:
Before Raspberry Pi can be installed inside an ATM and connected to Ethernet, USB, or RS-232 ports, an attacker needs to open up an ATM enclosure. At the machine’s upper part, there is a service area where the host that manages the ATM’s devices and network hardware, including poorly protected GSM/GPRS modems, are located. Unlike the safe located at the bottom, the upper part is quite easy to access — there is hardly any supervision over it if any. Attackers may open the service area using easy-to-make keys and simple materials at hands.
That's a lot easier than driving a truck through the front door and trying to haul away the entire ATM machine! ATMs are so ubiquitous, it will take quite a while to retrofit them all with target hardening security measures. Likely, companies will wait until they've taken losses before justifying that big a security investment.

N.b.: The solution here is decidedly NOT to ban or regulate Raspberry Pis nor to treat computer programmers as some scary security risk. The benefits from free innovation far outweigh the inevitable negative externalities, in the big picture. I mention it merely to note that the nature of crime is changing in the 21st century. Along with thefts of credit card data, these sort of tech-based attacks are a major game changer that most law enforcement agencies find themselves ill-prepared to confront.

Wednesday, February 25, 2015

Recalling Texan origins of the Prison Rape Elimination Act

Our pal Maurice Chammah has a feature in The Atlantic on prison rape, which includes this notable reminder about the Texan origins of the Prison Rape Elimination Act, which passed Congress unanimously in 2003 and was signed by President George W. Bush:
this rare moment of bipartisanship was born out of tragedy. In 1996, a 17 year-old prisoner named Rodney Hulin Jr. had torn up his bed sheet, tied it above the door of his cell in the Clemens Unit in Brazoria County, Texas, and jumped down from the top bunk of his bed. When correctional officers cut him down, Hulin was comatose, and he died four months later.

Hulin had been raped, beaten, and forced to perform oral sex within three days of his arrival at the unit. He asked to be placed in protective custody and was turned down. After his suicide, a picture of his small shoulders and thin face circulated on major news networks and Hulin became a symbol of two related phenomena. One was the prevalence of new laws that allowed youth to be sent to adult prisons, rather than juvenile facilities, for non-violent crimes (Hulin had committed second-degree arson, resulting in less than $500 of property damage). The other was prison rape.
MORE: A reader turned me on to this 6.5 minute video, "No Escape: Prison Rape in America - The Rodney Hulin Story."

DPS border 'surge' compromised crime fighting in rest of state

Who is surprised to learn that the border "surge" by the Texas Department of Public Safety "compromised the Department of Public Safety’s ability to combat crimes elsewhere"? Or so the agency told the governor and state leaders in a secret assessment which was leaked to the Houston Chronicle.

According to the paper, "While the report gave more detail than has been publicly released about the claim often made by [Lt. Gov. Dan] Patrick and other state leaders that the deployment has reduced crime, it focused on illegal crossings and cartel activity in the operation zone, providing less detail about local crimes and leaving open the possibility that criminals have simply shifted their efforts elsewhere." The story noted dryly that "some experts have attributed [the reduction in illegal crossings] to other factors," which is a pretty dramatic understatement. The border was already the safest region in the state before DPS began any "surge" operations, which is probably why the agency didn't even attempt to claim it reduced crime in the area - any such claim would inevitably run afoul of contradictory Uniform Crime Report data in the medium to long term. We've been around this block many times.

The Texas Senate has proposed spending an astonishing $815 million over the next biennium on border security above and beyond regular DPS patrols in the area. That's an insanely large amount of money being funneled down a black hole. Grits has suggested the state could abolish the Driver Responsibility surcharge with a portion of that money and still spend well more than double what was budgeted last biennium on border security.

There's no public safety justification for spending that much at the border. Thumbing the state's collective nose at a president who will never again run for re-election just isn't worth that much scratch, and at root that's the only reason this is happening.

MORE: From Lisa Falkenberg at the Houston Chronicle:
Even the Legislative Budget Board, which is charged with making recommendations to lawmakers on spending, has acknowledged there's no way for it to measure progress toward the border security goal

A "law enforcement sensitive" report issued to lawmakers and obtained by the Chronicle on Tuesday offers little clarity, just page after page of anecdotes and unsubstantiated or ill-defined numbers. In it, DPS gives Operation Strong Safety II, as it is called, full credit for the dramatic reduction in last summer's border apprehensions, even though federal efforts to stem the tide of unaccompanied minors were well underway.

The one thing the report is clear about: The operation "does not secure the border." I think we knew that.

Tuesday, February 24, 2015

Remembering Wiley College while the rest of Texas remembers the Alamo

With so many Texas politicians tweeting and opining today about William B. Travis' famous Feb. 24th, 1836 letter from the Alamo, Grits was delighted to discover in my Inbox this morning my "Today in Texas History" email from the Texas State Historical Association leading with "Rangers sent to Wiley College in response to student demonstrations - February 24, 1969."

Though the Alamo story is beloved, I've heard it a thousand times if I've ever heard it at all. There was a time I probably could have quoted you most of Travis' letter. But even though I grew up not far from Marshall in Tyler, I'd never heard the story of 100 Rangers and assorted other cops descending on Marshall in 1969 to squelch protests at an historically black college. (I'd have been two years old at the time.) Nor was I aware that, according to the TSHA, "In 1962, Wiley and Bishop College students held sit-ins at the local Woolworth store. Their activities and the local reaction made national headlines."

When I searched for more on that earlier episode, I found this account that placed the Woolworth sit ins in 1960, not 1962, in the weeks following the famous sit-ins in Greensboro, North Carolina. Dr. Martin Luther King Jr. spoke at Wiley College on March 17, 1960, and the Marshall sit-ins began eleven days later. "Police arrested 20 students at three different lunch counters for interfering with businesses." Then,
In response students gathered in front of the courthouse and sang. A crowd of white people gathered, and in a few hours grew restless. In an effort to clear the group, the city fire department unleashed hoses of high pressure water at the demonstrators and several bystanders. Police arrested 37 more students in the process.

On 31 March, a crowd of 350 students met at the bell tower of Wiley College for prayer and songs in support of those still in jail. Later that day, the student leaders announced a boycott of white merchants.

Meanwhile, Texas Governor Price Daniel ordered an investigation of [one of the organizers] Dr. Wilkerson after discovering his former ties to the Communist Party. Within a week the Bishop College president fired Wilkerson.
Eventually, school administrators called for an end to the demonstrations and that summer, the "Wiley College president fired the entire teaching staff except for those who supported the administration during the sit-ins."

Fascinating. I'd never heard those stories before, which lamentably has been a recurring theme for me recently.

Benchslap for judge-turned-Tarrant DA for gagging defense counsel at sentencing

From Decatur attorney Barry Green:
New Tarrant County DA Sharen Wilson had a case she presided over as a judge reversed on Thursday for the most basic of reasons: She refused to allow an attorney defending his client to speak during a hearing before she sentenced his client to prison. Excerpt: "Defense counsel: Can I make a closing statement when the time comes? The Court: I don't need one." Think about that. After I got over what an amazing basic legal error that was, I became more amazed that she didn't want to listen.  Heck, I wouldn't say that to a waiter who asked, "May I make a suggestion?"
Given her choice to run for Tarrant County District Attorney, perhaps Ms. Wilson understood her predilections were more suited to pro-government advocacy than judging, though plenty of Texas judges view those roles as indistinguishable, starting at the top.

Smarter probation, risk assessments reduce recidivism, incarceration costs

The Midland Reporter Telegram offered up a rare feature (Feb. 23) on the local probation department. The article opened with this generalized assessment:
Texas’ prison reforms beginning in 2007 revolutionized the state's long-standing “lock-em-up” philosophy. Over the years, the reforms have been lauded for abating the pressures of overcrowded prisons and efficiently using taxpayer dollars. But how these reforms translate from county to county can vary.

One facet of these reforms was an outgrowth of research and studies that showed how strong probation programs can reduce the number of offenders who are sent to prison, released and then are sent back to prison.
Strong probation, or in Texas’ parlance, “community supervision” programs, can have a large impact on the rising cost of the correctional system in the state budget.

"If you can take low-risk offenders and send them to an outpatient program, if you can get them through there … it’s much better than them being (sent) to a prison," said Jed Davenport, director of Midland County's Community Supervision and Corrections Department, which administers court-ordered probation.

"If you take someone who's low-risk and you put them in a program with high-risk offenders, you just increased the likelihood (by 63 percent) of them reoffending," Davenport said.
And here's a more specific discussion of what strong probation means on the ground:
The two major changes made in the CSCD boil down to the methods by which probation officers supervise offenders, according to Davenport.

"Traditional probation for years was just, what I call, straight-lined enforcement of probation," Davenport said. "What we know doesn't work -- or doesn't help the probabilities of people not reoffending -- is just coming in and just roll-calling probation. There's got to be more to it."

In previous years, Texas' criminal justice system relied on simplistic assessments for predicting future violence in offenders. These predictions were made with little or no scientific basis and too often were wrong, according to a study out of Sam Houston State University -- "Risk Assessments in the Texas Criminal Justice System" -- by Mary Conroy.

"It seems clear," the study reads, "that the potential for violence was overestimated in many cases."

The retooling of community supervision programs by the Texas Legislature in 2013 produced the Texas Risk Assessment System, which was made mandatory for all correctional departments to use as of Jan. 1, 2015.

Under the guidelines of the TRAS, probation officers are given the training and tools to take a more psychoanalytical approach to assessing risk-factors in offenders, Davenport said. These risk factors include anti-social attitudes, substance abuse habits, lack of empathy for others and impulsive behavior, he said. The assessment will classify offenders as low-risk, medium-risk or high-risk.

Rather than just rubber-stamping probationers as having violated or not violated their terms of probation, "officers are having 10- to 15-minute discussions or guidance and instruction with them saying, 'This kind of thinking leads to this kind of behavior; you gotta stop thinking this way,'" Davenport said. "Criminal thinking leads to criminal behavior."
The department is seeking funding for additional treatment and diversion programming from the 84th Texas Legislature.

Monday, February 23, 2015

Infographics on Texas court system

The Office of Court Administration has been publishing a series of interesting infographics about the Texas court system. Here are several that caught Grits' eye.

Sunday, February 22, 2015

High speed chases, asset forfeiture, civil commitment and remembering 'Pottygate'

Here are a few items whch haven't made it into independent posts, aren't likely to in the busy week ahead, but which merit Grits readers' attention:
  • Read Texas Monthly's Dan Solomon on "The Causality of High Speed Police Chases"
  • Check out a San Angelo Standard Times editorial titled, "Curbing asset forfeiture abuse"
  • From the Houston Chronicle, "Harris County's two largest police agencies are testing body cameras on officers but refuse to release their policies detailing when the cameras should be turned on and off to maximize accountability and minimize intrusiveness."
  • Chron columnist Lisa Falkenberg asked, "If costly border surge is working, where's the proof?"
  • Mike Ward and Anita Hassan from the Houston Chronicle offer initial details on what a revamped and perhaps renamed sex offender civil commitment program might look like under legislation soon to be proposed by state Sen. John Whitmire. Judge Seiler would see his duties over the program eliminated and distributed among other judges and a new lockup facility would be opened near Houston to house these offenders who've served their full sentences but are subject to additional punishment post-sentence under the guise of treating their underlying desires, with the caveat that no one has ever been deemed by the program to be successfully treated. 
  • As Texas prepares to consider raising the age at which youth are tried as adults from 17 to 18, the Dallas News has published several stories describing how the Dallas County jail presently handles those offenders, describing conditions at the jail for 17 year olds, and assessed several, related juvenile justice issues facing the 84th Legislature.
  • In reaction to this Grits post on state Rep. Debbie Riddle's bill to criminalize entering a restroom labeled for the opposite sex, a commenter reminded me of "Pottygate" from the early '90s which was handled by the Legislature quite differently.

Capital cases called into question

Allegations of police and prosecutor misconduct highlight a pair of capital cases that were the subject of recent high-profile MSM coverage.

First, consider the latest appeal of Linda Carty, who was "convicted of plotting the murder of her neighbor, Joana Rodriguez, in order to steal Rodriguez's newborn baby in 2001." Reported the Houston Chronicle (Feb. 13), "Her previous appeals have all failed - despite international protests over the fact that her Harris County-appointed attorneys spent only two weeks preparing for her capital trial." However, Carty:
gained support for a new appeal from two unlikely sources: the DEA agent for whom she was once a confidential informant and a star prosecution witness who has now recanted.

In affidavits separately supplied to Carty's current defense team in 2014, the agent and two of Carty's co-defendants allege that Harris County prosecutors crossed ethical boundaries and threatened them to ensure Carty's conviction.

Retired DEA Special Agent Charles Mathis, in his affidavit, specifically accused Connie Spence, the lead prosecutor on the case, with threatening to cross-examine him in open court about "an invented affair that I was supposed to have had with Linda." Mathis insists that allegation was false, but worried that it could have clouded his law enforcement career if Spence had carried out her threat in a capital murder trial that generated considerable publicity.
See Mathis' affidavit. Further, reported the Chron's Lise Olsen:
The affidavits from two of Carty's co-defendants accuse Spence and another prosecutor of threatening them with a death sentence and of feeding them stories designed to "nail" Carty.

The allegations of prosecutorial misconduct have been presented as "new evidence" in support of Carty's effort to win a hearing, a request now pending in the Texas Court of Criminal Appeals that was filed by Michael Goldberg, a Baker Botts civil attorney who has stuck with the case for more than a decade pro bono.
Pretty explosive stuff, if it can be proven. And harder to discredit Carty's DEA handler than some jailhouse snitch. Definitely one to watch.

In other capital news, investigators on a true crime TV show this week announced they believe Rodney Reed, a Bastrop man sentenced to die soon for the 1996 murder of Stacey Stites, was falsely convicted. Reported the SA Express-News (Feb. 18):
The TV investigators found that the evidence points blame toward Stites’ fiancée at the time, Jimmy Fennell Jr., who provided a timeline of his whereabouts that at the time ruled him out as a suspect.

“For me, it’s obvious,” [retired NYPD detective sergeant Kevin] Gannon said. “As far as I’m concerned, the murderer is Jimmy Fennell… I can’t see it being anybody else.”

The investigators also sourced evidence that shows Fennell has a violent past, and that he is currently serving time in prison for kidnapping and sexually assaulting a woman while on duty and in uniform as a police officer.
See parts one and two of the A&E feature on Rodney Reed's case.

Saturday, February 21, 2015

Debbie Riddle wants Potty Police to combat gender bending in Texas restrooms

From the "You Can't Make This Stuff Up" Department, I think this may be my favorite* new crime proposed yet in 2015: Texas state Rep. Debbie Riddle has filed legislation making it a Class A misdemeanor for a transgendered person to use the restroom of their adopted gender, even after reassignment surgery, and a state jail felony for a building manager to allow them to do so.

Indeed, the bill goes beyond transgendered people to criminalize anyone entering the restroom of the opposite gender with three exceptions: if they enter for custodial purposes, to give medical attention, or accompanying a minor under eight years old. I can think of more than one instance in my life where I would have committed a Class A misdemeanor under this provision, how about you?

My wife suggested that many women may have violated this proposed law at nightclubs or public events because the lines to women's restrooms are always quite long and the stalls in the men's room are frequently empty.

Criminalizing that demographic may be an unintended consequence. But to me, what makes it look like the bill targets transgendered folk are the particular gender definitions imposed in the bill:
For the purpose of this section, the gender of an individual is the gender established at the individual's birth or the gender established by the individual's chromosomes.  A male is an individual with at least one X chromosome and at least one Y chromosome, and a female is an individual with at least one X chromosome and no Y chromosomes.  If an individual's gender established at the individual's birth is not the same as the individual's gender established by the individual's chromosomes, the individual's gender established by the individual's chromosomes controls under this section.
That definition understates the complexity of possible chromosomal variations and conflates a cultural construction - "gender" - with chromosomal sex determination in ways that don't jibe with modern understanding. "Gender" is not necessarily "established by the individual's chromosomes." According to the World Health Organization, "Gender, typically described in terms of masculinity and femininity, is a social construction that varies across different cultures and over time. There are a number of cultures, for example, in which greater gender diversity exists and sex and gender are not always neatly divided along binary lines such as male and female or homosexual and heterosexual." One may or may not agree with that assessment of gender vs. sex, culture vs. science, but the WHO analysis points to the fact that these questions are not nearly so cut and dried as the binary framework suggested in Rep. Riddle's bill. At a minimum, it would set the stage for years of litigation as every gender-identity permutation steps forward to assert their preferences. Implementing this statute would be a full-on mess.

Ironically, it's likely that, if this bill passed, it would hasten the move toward unisex restrooms so that building managers wouldn't risk committing a state jail felony if the wrong person uses the wrong toilet. It'd seem like the only rational response from a business perspective. Why risk committing a state jail felony when you can eliminate the possibility by posting two stick figures on the door instead of one?

Unintended consequences, anyone?

*My "favorite" not because I approve of the suggestion but because I'm entertained by it.

MORE: Apparently this group has been promoting this idea for some time. Their effort appears to have begun in earnest after Houston Mayor Annise Parker issued an executive order allowing "transgendered individuals to use restroom facilities in city-owned buildings for the gender with which they identify." Last year she backtracked on the issue, to a degree. AND MORE: Checking Google News, I discovered there is legislation on this topic (failing) in Kentucky and Florida. According to this source (Feb. 10):
In 2013, a proposed bill in Arizona (why is it always Florida and Arizona?) would have allowed police to stop anyone suspected of using the "wrong" bathroom and demand identification. Had the bill not been defeated, violators would have faced a $2,500 fine and up to six months in jail. Earlier this month, a Colorado bill that died in committee would have banned transgender students from accessing changing rooms.
So this is a coordinated effort across multiple states, not just one oddbird bill in Texas.

AND MORE: This article from Towleroad followed up on Grits' story and has been driving a lot of traffic here. WOAI Radio covered the bill and contacted Debbie Riddle's office, who surprisingly declined to comment. Rep. Riddle hasn't been microphone-shy in the past. The San Antonio Current also ran a piece. AND MORE: Texas Monthly picked up on the story. See coverage from The Advocate and State of Trans

And three days after Grits broke this story, there's this: Via the Dallas Voice, Equality Texas put out an action alert opposing Riddle's legislation.

Friday, February 20, 2015

Authorities storm Bryan VFW to photograph, fingerprint and DNA swab secessionist group

At a VFW hall in Bryan, reported Zeke MacCormack at the SA Express News (Feb. 19), the Kerr County Sheriff along with the "FBI, the Texas Attorney General’s office, Bryan police and Brazos County deputies" raided a VFW Hall where sixty members of the Republic of Texas were holding a meeting, ostensibly because two of them allegedly committed document fraud, though "No one was arrested and no charges have been filed."

Anyone who's followed the Republic of Texas' antics wouldn't doubt some of their members issued phony liens, writs or summonses. It's sort of their thing.

Rather than focus on the particular offenders, though, "officers photographed, fingerprinted and confiscated belongings of numerous members even though only two are accused of wrongdoing," and are "are examining computers, phones and other items seized" from the group. Here's a bit more detail on the search warrant:
A sworn affidavit filed by Kerr County deputy Jeff McCoy in support of the search warrant alleges that Cammack, 53, and Kroupa, 59, committed the misdemeanor of simulating legal process. ...
If charges are brought in the case, they could be filed in Kerr County or Brazos County, said Assistant Kerr County Attorney Ilse Bailey.

The search warrant issued Feb. 12 by state District Judge Keith Williams authorized collection of fingerprints, photos and DNA swabs from those at the VFW hall to prevent anyone from providing a false identity to authorities.

It also authorized officers to seize computers, cell phones and paper documents “relevant to, or which describe criminal conduct or suspected criminal activity.”
Detaining, photographing, fingerprinting and swabbing members of a political group because they attended a meeting is a lot different from investigating wrongdoing by individuals. I've no problems with investigating these misdemeanor document fraud cases (though I'm surprised it would require the FBI to do it), but as described that seems like an awfully sweeping warrant.

My advice to authorities would be: Don't overreach and make martyrs of a bunch of kooks. Prosecute the ones who commit crimes but leave the rest of them free to believe whatever false, nutty, nonsensical silliness they want. Judge Williams may be fed up with the Republic of Texas' courthouse antics, but he'll hand them an unintended public relations victory if the mailed fist of justice fails to distinguish suffciently between villains and fools.

Correction: This post originally said the VFW hall in question was in Kerrville. The search warrant affidavit was filed in Kerr County but the actual raid was in Bryan. Sorry for any confusion.

A recipe for 'less government': Cut corrections costs by reducing incarceration of nonviolent offenders

Greg Abbott's trouncing of Wendy Davis and the election of Republican supermajorities in both chambers of the Texas Legislature means the state is now run by people who've spent their entire political careers calling for lower taxes and "less government." But those two things are not always synonymous.

Reducing taxes is only a sustainable goal if government simultaneously reduces the number of things for which it's obligated to pay. Otherwise, what occurs in practice is cost shifting, not cost cutting. Sustainable tax cuts must be preceded by cuts on the spending side, which is the piece that's largely been missing from proposals so far by the state leadership. True to form, most of our politicians calling for tax cuts simultaneously want to boost spending at the border, on roads, and for a laundry list of other items. This year, perhaps they can get away with that because of expanded revenue from a thriving economy. But the vicissitudes of fate dictate that won't always be the case.

Grits can't speak as knowledgeably to other areas of the budget, but criminal justice spending continues to balloon well beyond what Texas' declining crime rates might lead one to anticipate. Investments in diversion spending from 2007 onward have helped prisoner numbers level off, but their population is aging and overall costs continues to rise. (Medical providers have told TDCJ, for example, they need $174.8 million more for healthcare alone in the next biennium to meet minimum standards.)

If the Legislature chooses to incarcerate the same number of people it does now, much less if they want to increase the number of people in prison, or allow it to increase, then costs will continue to escalate and taxes must be gathered from some source or another to pay for it. Ditto for county jail and indigent defense costs, which are big cost drivers for county property taxes.

So, what policy choices would facilitate lower spending on criminal justice without harming public safety? Here's a simple recipe for cutting corrections budgets in Texas at both the state and local level by reducing incarceration of nonviolent offenders:

Make small-time drug possession a Class A misdemeanor
Pass legislation reducing penalties for possessing less than a gram of a controlled substance (roughly the contents of a Sweet-N-Low packet) from a state jail felony to a Class A misdemeanor, with a penalty of up to a $4,000 fine and a year in jail. According to the Legislative Budget Board, this move would save the state nearly $100 million in the coming biennium and allow TDCJ to close multiple state jail facilities. Grits would suggest spending a portion of the savings on new misdemeanor probation programs aimed at reducing caseloads, bolstering treatment programming, and managing the additional probationers.

Index property crimes to inflation
Following the Senate Criminal Justice Committee's recommendation, index property crime thresholds to inflation and deal with petty thieves at the local level instead of through the state prison system. Value thresholds set in 1993 are outdated and create a situation where cases that would have been misdemeanors creep into felony range because of economics, not increased culpability. The Legislative Budget Board in 2013 declined to estimate the precise budget effects of adjusting property thresholds upward but acknowledged that:
Raising the threshold for the value of property stolen is expected to result in decreased demands upon the correctional resources of counties or of the state due to shorter terms of probation, or shorter terms of confinement in county jails or prison.  Since the bill is raising the threshold for the value of property stolen for theft (misdemeanor and state jail felony) the impact on the state as a result of raising the threshold is likely to result in a decreased demand on the correctional resources of the state since offenders previously punished as state jail felons would now be punished as Class A misdemeanants.
Similar to the proposal on drug crimes, it'd be nice to see a portion of savings from this move go to local probation departments to help manage the extra probationers they'll receive as a result.

The above suggestions would reduce the state budget, perhaps allowing the Legislature to close three to five state jails, probably through eliminating private prison contracts set to expire in the near future. But will counties be ready to handle those new cases? They will if the Lege finishes off its cost-reduction regimen by following this advice:

Shift B misdemeanors to Cs on small-time pot possession and invalid licenses
Here's how to free up resources at the local level to manage those new offenders who otherwise may have been sentenced to TDCJ: Reduce penalties for low-level pot possession and driving with an invalid license (DWLI) on subsequent offenses from Class B to Class C misdemeanors (or in the case of marijuana, perhaps applying a civil penalty, as suggested by state Rep. Joe Moody.) Those two changes in 2014 would have avoided more than 90,000 Class B arrests (source: add total new cases for marijuana possession and Class B DWLI from here and here), respectively, reducing counties' policing, jail and indigent defense costs by more than enough to offset the new, additional defendants who would be shifted to county purview from the state jail felony category. (See Grits' recent column in the Dallas News advocating those reforms.)

Make those few, interconnected changes and the state could curb upward pressure on incarceration spending at the state and local levels, saving nine-figure sums while adequately funding local systems and reducing burdens on county government, perhaps closing several jail units in the bargain.

What this proposal fails to address are rising healthcare costs of long-time prisoners with insensibly interminable sentences whose end-of-life medical bills drive higher prison health costs. However, medical parole debates have been contentious and the politics of reducing long sentences for violent offenders are more volatile. These suggestions instead would reduce the churn of short-term state jail inmates convicted of nonviolent offenses, focusing state resources on more serious offenders and leaving small-timers to the locals to manage with new funds derived from the resultant budget savings.

That's IMO what's politically possible in 2015 and, if the Lege would do it, they could lay claim not just to cutting taxes but also smartly cutting spending. For "less government" to also be wise government, both have to occur.