Friday, September 30, 2005

Oklahoma meth law not working

Despite all the hype, Oklahoma's new anti-meth law turned out to be less than OK. Backers touted the idea as a national model. (Indeed, Texas followed the Okies' lead this spring by requiring pseudoephedrine, which is used to make homemade meth, to be sold only from behind the counter, and customers must sign for the purchase.) Now it turns out the much-ballyhooed new law hasn't worked at all, instead opening up the market for violent Mexican drug cartels. According to the Newhouse News Service:
police say a massive influx of meth made by Mexican "superlabs," which can obtain tons of pseudoephedrine, has kept meth plentiful and potent. The number of Oklahoma users shows no sign of falling, and property crime still keeps the Oklahoma County Jail at capacity.

"We took away their production," said Tom Cunningham, task force coordinator for the Oklahoma District Attorneys Council. "That didn't do anything for their addiction."
That's predictable. In Texas, the Oklahoma law was hyped as a cure-all that would rid the state of meth once and for all. Now it turns out we can expect the drug to be just as "plentiful and potent" as ever under the new law, maybe more so. What's saddest, in 2007 when the same politicians return to Austin complaining we need tougher drug laws, I doubt their constituents will call them on the fact that their past efforts never really mattered at all.

See also, "Pseudoephedrine restrictions raise fears of more addiciton, more overdoses and more violence."

Vets against the (drug) war

Read this Fort Worth Weekly feature about the group Law Enforcement Against Prohibition, which contains many prominent Texas members. Best line from a retired Huntsville, TX prison warden: "If you can’t keep drugs out of a maximum-security prison, you can’t keep them out of schools"

Thursday, September 29, 2005

Muni Judge: System failing youth offenders

Austin municipal court Judge John Vasquez has an op ed in today's Austin Statesman describing how the criminal justice system is failing youthful offenders and disrupting the lives of mostly minority students. Writes Vasquez:

About 90 percent of the juveniles subject to warrants are minority children.

Almost 6,000 non-traffic, criminal charges are filed annually against juveniles between the ages of 10 and 16 in the Austin Municipal Court — a ratio of about one case filed for every 13 children in that age range. The charges range from possession of drug paraphernalia to disorderly conduct to curfew violation. These are Class "C" misdemeanors — the lowest-level criminal offense, punishable by fine only. About four out of every five cases are filed against African American and Hispanic juveniles.

In Travis County Justice of the Peace Courts, more than 7,000 criminal cases are filed annually against children for not attending school.

For many of these youths, timely and effective court intervention is desperately needed. But their cases move through the system much too slowly. Months may pass between the date of the alleged offense and the first court appearance. The Travis County Justice of the Peace Courts and the Austin Municipal Court are high-volume operations, easily processing more than 300,000 cases annually. Little time can be spared for juvenile offenses.

Vasquez thinks the solution lies in a "system of juvenile case managers [who] will work with young offenders and their families to identify programs and services that will help them overcome obstacles to success." I'd think an even better solution, though, would be to stop criminalizing so much petty juvenile behavior in the first place.

I cut school occasionally as a teenager. How about you? It wasn't a crime back then, just a violation of school rules. A fine wasn't attached, but you know what? I turned out okay.
Those 7,000 kids in Austin being mulcted by the courts for playing hookie aren't any better off for the experience, and fining them won't make them better people. Same with tickets for breaking curfew - we're criminalizing behavior nearly all youth engage in at one time or another, so what's the point? In practice, it's just a cash cow for municipal government, a discriminatory law enforcement practice from the perspective of the minority kids targeted, and a big waste of time for everybody involved.

There are enough kids committing actual crimes to worry about without criminalizing class-cutting and plain ol' youthful rebellion.

Read the ACLU of Texas' Liberty Blog

Please check out the new and greatly improved ACLU of Texas website, including the new "Liberty Blog" covering Texas civil liberties topics. I'll be contributing some there (though Grits will remain active), as will other Texas ACLU project directors. So far the Liberty Blog has posted several items that may be of interest to Grits readers:

Wednesday, September 28, 2005

Probation kiosks reduce costs when used properly

Check out this op ed by Marc Levin of the conservative Texas Public Policy Foundation on the new automated probation kiosks being used in Dallas -- essentially an ATM-type machine where probationers can check in, pay fees, and have their picture taken to confirm their identity without talking to a probation officer.

Levin thinks that "Inappropriate use of probation automation risks saving money in the short run while increasing long-term costs through higher recidivism rates." But it seems like the idea should work well for some offenders who need to check in and pay fees but don't require much supervision, a description that fits tens of thousands of Texas probationers. It's an especially good idea for those who've already successfuly completed two to three years of probation. Research shows that most probationers who re-offend do so in the first few years.

UPDATE: A commenter helpfully points out this Dallas News report that Dallas County has temporarily suspended the kiosk program while it retools its screening process to decide who gets on it. Hopefully media criticisms won't kill the idea, which was only being tried in Dallas as a pilot program under a state-granted waiver. Used for probationers
who've successfully completed several years of probation, for starters perhaps limited to those who committed non-violent offenses or who've been identified as low-risk, could free up much needed probation officer resources for more careful monitoring of high-risk offenders.

Tuesday, September 27, 2005

Rent-a-bed policy, not Rita, responsible for Gregg County jail turning away prisoners

Overincarceration at the Gregg County jail in East Texas has forced local law enforcement officials to "turn away" nonviolent offenders in the near term. Officials blamed Hurricane Rita, even though state jail population reports show the bulk of the problem was caused by their own management choices:
The city of Longview also has agreed to not arrest Class C misdemeanor warrants for about 15 days while the jail grapples with an overcrowding situation spurred by the addition of 30 inmates from Southeast Texas prisons.
The problem was compounded when the state's criminal justice department canceled all jail transports due to Hurricane Rita.
"We're supposed to have double digits going out last week and this week," Cerliano said Friday, noting that 95 offenders on state parole warrants were already at the jail.
"The state quit taking them, so they put us in a bind."
Those 95 offenders, though, even added to the 30 evacuees, aren't why overcrowding forced fewer arrests. Instead, Gregg County has rented out nearly half its jail beds on contract -- 234 out of a jail population of 536, according to the September 1, 2005 Jail Population report (pdf). So Gregg County taxpayers paid to build plenty of jail space for their local needs, but the county's leaders filled it up with inmates from other jurisdictions so that in time of emergency, all their extra capacity was predictably gone.

That's just bad management by the Sheriff and the Gregg County commissioners court, reducing public safety for their own community in order to generate a slush fund housing other's prisoners. (It's a good thing the Sheriff already got his $700,000 budget increase approved this year I guess.)

Across the state other counties are making the same mistake, even building new jail capacity speculatively hoping to lease beds out to the other entities in an essentially entrepreneurial fashion. Much of the boom is driven by the US Marshals Service, which must find somewhere to house defendants in the skyrocketing number of immigration cases the US Attorney in Texas' Southern District (Houston) has chosen to prosecute.

Just as President Eisenhower warned of a military-industrial complex, a prison-industrial complex has arisen that views incarceration not as a sad outcome to be avoided, but, improperly, as a venue for entrepreneurship, seemingly inspired by a weird sort of greed-driven, state-sponsored schadenfreude. What's happening in Gregg County shows that such policies aren't just cynical and soulless, they're bad for public safety.

Monday, September 26, 2005

Why are Texas county jails overcrowded? Pretrial detention

SEE ALSO: Grits' best practices to reduce county jail overcrowding.

Inmates aren't yet everywhere sleeping on the floors like they are in Harris County, but across Texas most county jails face an overincarceration crisis. What is the cause? Are there really that many more criminals today than before? Hardly, crime is actually down. So why? Put simply, more Texans are incarcerated
pending trial, i.e., before they're convicted, than in the past, especially in larger counties.

An analysis by
Grits of data from the Texas Commission on Jail Standards found that, while county jail populations increased 27% between 1995 and 2005, almost all that stemmed from more frequent detention of defendants before trial. (For 1995 data, see this report [pdf]; for current data, this one [pdf].) In other words, there are many more defendants who can't make bail awaiting trial these days in the county lockup. Particularly for misdemeanants, just a decade ago many of those defendants would have been released on personal bond so taxpayers wouldn't pay to house them.

Bottom line: These trends represent harsher decisions by judges about when defendants should be released on bond -- another case where being tough on crime amounts to being
tough on taxpayers, with little public safety benefit. A decade ago, pretrial defendants made up 30.3% of the statewide Texas jail population. Today the number is nearly half, at 48.3%.

Historical data from the Texas Commission on Jail Standards shows dramatic increases in pretrial detention since 1995. The number of felony defendants statewide being held pretrial increased by 60%, while the number of misdemeanants increasd by a whopping 116%. In addition, a new class of defendants that didn't exist before-- those awaiting trial for state jail felonies, mostly low-level drug offenders -- went from zero in 1995 to occupying more than 5,400 county jail beds statewide on September 1, 2005.

What does that mean to the average defendant? Judges are more likely to require them to put up bail than ten years ago, when they may have been released on 'personal bond,' or a promise to appear. Now if they can't pay, more defendants must sit in jail awaiting trial. Defendants in drug cases, in particular,
wait long periods racking up unnecessary jail costs while the Department of Public Safety tests for controlled substances. (See earlier Grits coverage of pretrial detention policies in Harris and Tarrant counties.)

The knee jerk reaction to lock even petty misdemeanants up before trial can't be justified based on what's best for public safety. It's just kind of mean-spirited and counterproductive, showboating for gullible voters with little tangible crimefighting benefit. With so many jurisdictions operating local lockups that are bursting at the seams, it makes little sense to continue the trend, unless, perhaps, you're a bail bondsman. Here are the incarceration rates for pretrial detainees at several of Texas' larger county jails:

What percentage of Texas county jail
inmates are awaiting trial?
In 1995, just 30.3% of Texas county jail inmates
statewide were incarcerated awaiting trial. Now it's nearly half.
In many large counties, the figure is much higher:


Pretrial Detainees as
Percentage of
County Jail Population













El Paso
















Source: Texas Commission on Jail Standards,
September 1, 2005 Jail Population Report (pdf)
CLARIFICATION: Link goes to current month's report; 9-1-05 is no longer online.
(Percentages calculated by adding separate figures for felony, misdemeanant, and state jail felony pretrial inmates, and dividing the sum by the total jail population.)

Sunday, September 25, 2005

Pay-per-snitch: "It's the American way"

Smith County Sheriff J.B. Smith (the county seat is my hometown of Tyler) extolled the virtues of the Crimestoppers program in a recent speech, according to this morning's Paris News, portraying it as one, big pay-per-snitch program:
“I run one of the biggest jails in the state of Texas. I’ve got over 900 prisoners. And it’s because of programs like Crime Stoppers that a lot of them are there. It’s the American way of doing it. Pay ’em for it. Snitch on somebody and let’s get ’em in jail. It works,” Smith said.

Saturday, September 24, 2005

Do Texas counties violate drug offenders right to a speedy trial?

I'm no lawyer, so maybe some commenter can help me understand these things. If one category of offender spends, on average, 102 days in jail awaiting trial, and all other types of defendants receive trials in just 42 days, are they receiving "equal protection" regarding their right to a "speedy trial"?

That's what's happening to drug offenders in the Collin County jail, and apparently in other local jails around the state, contributing significantly to Texas' ongoing overincarceration crisis. The Collin County Sheriff and the District Attorney want to fix the problem by paying for a quicker, private lab -- not because they're worried about the constitutional rights of defendants, mind you, but because they need the jail space.
Reported Krystal de los Santos of the McKinney Courier-Gazette:
Sheriff Terry Box said that the county is wasting money housing the drug offenders while they await trial, which cannot start until the District Attorney's office has proof that the substance they are charged with possessing or distributing is actually a drug.

"That's been one of our biggest problems," Box said "The drug tests are taking too long, while the inmate sits in jail taking up space."

Housing an inmate costs the count $69 a day when including indirect costs like salaries, or just more than $40 a day directly.

District Attorney John Roach said that city law enforcement officials are using the Texas Department of Public Safety laboratory, which takes weeks or in some cases months to return results for their drug analysis.

The Texas DPS provides the service free of charge, but is much slower than a local laboratory.

Roach said the average amount of time it takes for the county to start a case against an offender in possession of a substance is 102 days, while the average for other offenders is 42 days.

"That shows you how big that gap is," Roach said.

The 49 offenders awaiting lab results who are currently housed in the Collin County Detention Center have been in jail for 3,273 days total. At $40 a day, those inmates have cost the county $130,920. At $69 a day, they've cost taxpayers $225,837.

Those costs all come before the defendant is even found guilty, folks, much less sentenced. What's more, if DPS waiting times are the problem, that means the same time lag in drug defendants getting to trial must be occurring everywhere in the state. This is madness! Constitutional questions aside, how much savings could be had just by releasing most non-violent defendants on personal bond? It'd be cheaper even if you applied special conditions to their release like regular drug testing. Once again, one wonders where are the judges in this, and how are they allowing this mess?

I'm a proud Texan, but some mornings I look around at the criminal justice system in this state, in this country, and wonder if all the much-ballyhooed constitutional rights I was raised to cherish have become just hollow idols to which our government pays lip service, but no longer any real heed.

John Wesley Hardin: Reconstruction-era desperado

One of Texas' major outlaw icons from the Reconstruction era was John Wesley Hardin, who became a fugitive after murdering a black man in East Texas, then joined in Northeast Texas blood feuds on the side of anti-union clans against federalist supporters. Read this fine essay by Edward Southerland in the Sherman Herald Democrat on Hardin's criminal career for a flavor of that important period. (UPDATE: Here's part two.)

It's still astonishing to me how many aspects of Texas politics and culture to this day are influenced by ideologies prevalent during the war to end slavery and Reconstruction. After the Civil War, thousands of southerners fleeing Yankee occupation placed signs reading "GTT" on their homes -- "Gone To Texas" -- and headed west. Huge numbers came who were burned out by Gen. Sherman in Georgia, but also die-hard rebel holdouts from Alabama, Mississippi, Tennessee, etc., fled to the Texas frontier in droves.

Without knowing that history, it's really hard to understand local political attitudes in places like Brownwood, Tyler, Plano and Wichita Falls, where one still occasionally sees bumper stickers promising "The South Will Rise Again," and rebel battle flags are still a local icon.
Most of the rebel migrants came through northeast Texas, and thousands settled there. Before long, the area become a hotbed of the most radical ex-confederate sympathizers to be found anywhere. Hardin's terrible crimes were committed in the midst of that embittered political stew, though politics cannot justfy them. His importance as an icon, though -- a hero to the southerners and an enemy of the state -- can hardly be separated from the zeitgeist of the times.

Friday, September 23, 2005

Meth and moral values

What is the religious community's stance on the morality of punitive drug laws? Apparently not what you'd think.

Via Doc Berman, the latest FAMM-Gram (pdf) from Families Against Mandatory Minimums, which is focused on opposing increased federal meth sentences, includes this fascinating passage from a June epistle to the Washington Post by Charles Thomas of the Interfaith Drug Policy Initiative:

Considering how often the Bush administration refers to moral values, it should consider that most major religious groups oppose mandatory sentencing, including the U.S. Conference of Catholic Bishops, the National Council of Churches, the United Methodist Church, Chuck Colson's Prison Fellowship Ministries, the Presbyterian Church (USA), the Episcopal Church, the Evangelical Lutheran Church in America, all four major black Baptist denominations, the United Church of Christ, the Union for Reform Judaism and the Unitarian Universalist Association.

No denominations are known to favor mandatory sentencing. The moral position on this issue is clear.

If only the moral positions of our nation's leaders could be determined such great clarity.

Overincarceration boosts Travis taxes

The Travis county jail is full, and expanding it will force new tax increases, the Austin Statesman reported Wednesday. New jail spending involves serious opportunity costs: in the same budget, spending on roads in the traffic-jammed Texas capital declines by 9%. Guess that means the commissioners court thinks Travis county voters would rather pay to incarcerate low-level offenders than build adequate road capacity -- I bet they're wrong. In any event, the jail soaks up most new spending in the budget. Reported the Statesman:

Much of the county's spending increase would go toward dealing with jail crowding, according to the county [budget] report.

"Clearly," the report states, "the predominant theme in this budget is the obligation to fund the dramatic increase in the jail population." ...

Christian Smith, head of the Planning and Budget Office, said the county had planned late last year to beef up programs dealing with substance abuse, mentally ill inmates and work force development.

Those plans were dropped when the inmate population began rising more quickly than expected. A system equipped to handle about 2,400 inmates daily is now expected to deal with about 2,700 in 2006, according to the budget report.

See earlier Grits coverage of overincarceration at county jails in Travis, Tarrant and Harris counties.

Thursday, September 22, 2005

Public safety in border towns: Bad rap or bad news?

Note to Mexican border towns: Bad cops are bad for tourism.

In Reynosa, a border town of up to a million people across the Rio Grande from McAllen, TX, business leaders say their community is getting a bad rap because of drug-related violence upstream.
Reports the McAllen Monitor:

The argument Reynosa’s business community continually propounds is that while the drug cartels are violent, their targets are people who affect their business, whether it is a trafficker who steals from a load or a police officer trying to crack down — not tourists.

"They’re doing bad things, but if you’re just here to have dinner, you’re not going to have a problem," [business leader Cesar] Martinez said. "I think a lot of the problem’s with the media. They make it out like we live in a terrible town, but that’s not the case. … Look at everyone walking out on the street. Would they be out walking around if it was so dangerous? We have problems, but so does everyone."

Personally, I love Mexico and I'd hate to contribute wrongfully to anyone's decision not to visit. IMO, everyone should. What's more, it's probably true the drug runners have no reason to target tourists, but that ignores a harsher reality: Who tourists, particularly women, perhaps should fear more on the border are cops.

It's just a flat-out falsehood to claim that the border's bad rap stems solely from confusion with problems in Nuevo Laredo, where a third of police force was sacked this spring for corruption.
That's not to say there aren't many heroic Mexican cops actively fighting the bad guys, but police corruption is widespread. Officers in Juarez have been implicated in kidnapping and murdering possibly hundreds of women, including US tourists. In Reynosa, a police officer allegedly assassinated a prominent local businessman in December 2003. In 2004, 26 Reynosa police officers were suspended and fired and 12 were indicted for conducting robberies and even rape against US tourists. Again, reported the Monitor:
These actions follow[ed] the resignation of former [Reynosa] police director Carlos Hernandez Chaires on Oct. 6 and the termination of his second-incommand, José Garcia Rangel, who had barricaded himself in his office after being asked to step down by Reynosa city officials Oct. 5.

Seven of the nine complaints [from US citizens] involved police demanding money from tourists, usually on their way out the city’s red light district, according to Naland. But included in this round of charges was a police officer accused of rape and another charged with aiding the kidnappers of an American man, who was held for five days while his bank account was emptied via ATM withdrawals.

So even if it's true that drug runners aren't targeting tourists, one might fear the police just as much, it seems, when visiting Reynosa and other border towns.

That doesn't mean you should avoid the border, or Mexico. Most folks will be just fine. Go. Have fun. Be careful. Just don't trust the cops.

Wednesday, September 21, 2005

All hell breaking loose in Mexico

More terrible news from Mexico, where violent cartels are openly battling the government and one another for access to markets fulfilling the seemingly bottomless American demand for illegal drugs.

Drug-related violence is spreading far beyond the border. Troops were sent to patrol resort-town Acapulco recently after a spate of police-officer killings, and Saturday the civilian overseer of the police force in Michoacan, a coastal state in central Mexico, was
assassinated in a crowded restaruant.

he Fox government appears to be doing what it can to resolve the Sysyphian dilemma with brute force, but access to vast profits from the drug trade make the cartels powerful, well-armed foes. After 46,000 drug arrests in Mexico as part of a full-blown crackdown, the supply coming into the United States hasn't lessened. It likely won't. The source of the problem is US demand, without which there would be no market for drug suppliers. That's beyond Fox's control: America's addiction problems can't be fixed from the southern side of the Rio Grande.

God help Mexico. It seems like nobody else is going to.

Texas growers legally sell 1.9 million peyote buttons each year

Who'da thunk? From the Seattle Times:
The Texas Department of Public Safety has licensed peyote distributors since the mid-1970s, when the number in the state peaked at 27. It dwindled to four last year. State records show that only three distributors have harvested and sold peyote so far this year.

For the past five years, an average of almost 1.9 million peyote buttons have been sold annually, according to state records.
Even so, the industry is in trouble. The number of producers is dwindling, it's becoming harder to lease ranch space, and they're overharvesting a limited supply source. Nearly 2 million buttons per year is a good-sized market. Maybe Governor Perry can cough up some cash for the peyote industry from Texas' Enterprise Fund.

Tuesday, September 20, 2005

Federal immigration prosecutions: A colossal waste

More evidence that the massive spike in immigration prosecutions in Texas' southern district (based in Houston - the number of cases increased 345% in just one year) is putting enormous strains on the system. Reports the Houston Chronicle:
"It's put an incredible strain (on attorneys). We are still providing effective assistance, but we are burning people out," said Marjorie Meyers, who heads the federal Public Defenders Office in Houston. ...

Public defenders in Brownsville, Laredo and McAllen handled 8,482 misdemeanor immigration cases in fiscal 2003, another 15,357 in 2004 and 7,199 through August of this year, Meyers said.

The government, Meyers said, is wasting resources on prosecutions of immigrants coming to reunite with family or to seek employment.

"We're putting our finger in a dike that's going to break, and we're certainly not focused on people who are going to harm our country," Meyers said.
That's exactly right - an immigration policy focused on prosecuting economic refugees makes America less safe. Indeed, the equation of all illegal immigrants with criminal lawbreakers is a debate over formalisms that confuses the real issues affecting public safety. Prosecuting so many immigration cases only drives undocumented workers deeper underground. But the more serious public safety threats occur when enormous segments of the population a) have no legitimate identification, b) have no address or personal information registered with the government, and c) are afraid to contact authorities to report violent criminal or terrorist threats.

That allows the creation of a criminal class to prey on people who mostly won't report them. Plus, in the event of catastrophe it means the government won't have the first clue how to find everyone or make sure, for example, that flood victims are evacuated and cared for, bomb victims are identified, or infected bioterrorism victims receive treatment before they transmit diseases to others.

The real dangers from illegal immigration stem from the unintended consequences of lack of documentation and integration into the economy and public life. These prosecutions make those problems worse, not better.

Monday, September 19, 2005

7 million nationwide under criminal justice control

Almost 7 million Americans presently live under control of the criminal justice system. The Conservative Voice reports (9-16) that one in 32 Americans is incarcerated, on probation, or on parole. In Texas, that number is about one person in 20.

Sunday, September 18, 2005

Nifty research trick: Workaround for limited Google blog search

Okay, this is a little annoying. When Google changed their search format on Blogger (top left) to allow you to search all blogs in addition to just the Blogger account you're on, they somehow changed the search algorithm to give very limited results from internal blog searches. For example, a search on Grits for the phrase "drug task force" yields just 22 items, a fraction of what I've written.

That's perturbing, because one of the most important uses for
Grits to me is archiving information in a searchable format from which I (and others, but hey, do you think I'm doing this for you?!) can easily retrieve it.

There's an easy solution to get a full site search on a Blogger-based blog, though: Google's "site:" function. To search narrowly on any website, go to and type in:

search terms

So, for example, to search on Grits for information about drug task forces, you would type:

"drug task force"

... which gives you these comprehensive search results. That trick works not just on blogspot sites, but for searching any specific website. Happy searching.

Byrne money pays for non-task force projects

Texas drug task forces soak up a lot of federal funds needed for other important programs, but maybe that's starting to change. Historically, about 85-90 percent of Texas' block grant funding from the federal Byrne Memorial Justice Assistance Grant fund went to pay for drug task forces like the ones in Tulia and Hearne.

Now that about half of Texas' task forces have gone under (140 Texas counties don't participate in one anymore), the Governor has begun spending that money on more productive crimefighting approaches, including
homeland security improvements, drug treatment, better equipment, training and technical assistance, public education, and combating child abuse.

It's about time Texas quit throwing good money after bad. Byrne-funded drug task forces are a failed strategy. The money spent on them could be better used for more effective crime fighting approaches.

Why do innocent people go to prison?

Why do innocent people go to prison?

Following a study published in the journal
Science analyzing reasons for false convictions, columnist Rick Casey proposes this test for Houston police and prosecutors in this morning's Houston Chronicle:

"An analysis was done of 86 criminal convictions that DNA evidence later found to be wrong. Please rank the factors most often found to have contributed to the wrongful convictions:

•Incompetent defense lawyers.
•Police misconduct.
•Eyewitness errors.
•False testimony by forensic scientists.
•Prosecutorial misconduct.
•False confessions.
•Errors in scientific testing.
•False testimony by lay witnesses.
•Dishonest informants.

"If you ranked false confessions last, you are right. But did you guess 17 percent of the cases, nearly one in five, featured false confessions? That percentage tied with false testimony by lay witnesses.

"If you ranked eyewitness errors first, you were also right. Erroneous eyewitness accounts showed up in a stunning 71 percent of these cases. ...

"[F]ully 63 percent of the cases featured errors of forensic science. What's more, in 27 percent of the cases forensic scientists gave false or misleading testimony."

So, according to this study, misidentification by witnesses and bad forensic science are the most common reasons innocent people go to prison. Requiring corroboration for eyewitnesses' testimony (when they had no prior relationship with the defendant) would go a long way toward resolving the former, but in an era when even fingerprint evidence is coming under fire, the latter will require expensive, substantive reforms.

Every one of these guys should have been fired

The entire Comanche, TX police department called in sick for two days last week to protest the city's decision not to let them take their police cars home at the end of their shift. This hardball labor stratagem is known as the "blue flu," essentially a shakedown of city officials that intentionally leaves the public without police protection as a coercive labor tactic. The chief sided with his officers against the city, ridiculously announcing he was "proud" of them for returning. That's setting the bar pretty low, when you get kudos just for showing up for work ... sometimes.

If the city caves in here, they'll have more or less lost control of their department. Who's running this rodeo, anyway?

Saturday, September 17, 2005

What is restorative justice?: The TPPF report

Can "restorative justice" principles reduce crime and incarceration rates in Texas?

That's the claim of a
new report entitled "Restorative Justice in Texas," written by Marc Levin, director of the Center for Effective Justice at the Texas Public Policy Foundation, a state-level conservative think tank based in San Antonio. I posted the link when it was released, but wanted to adumbrate Levin's arguments in more detail.

Restorative Justice emphasizes making the victim whole rather than punishing the offender for punishment's sake. Levin emphasized the "biblical and tribal roots" of restorative justice, pointing out that the tradition of state-initiated prosecution is a relatively recent phenomenon in human history:

The principles of restorative justice are deeply embedded in all of the world’s major religious traditions. The Vedic civilization (6000-2000 B.C.) of the Hindus believed that reincarnation flows from penance, which must be performed after every sin is committed. Islamic law requires that a murderer compensate the victim’s family and dictates that the victim’s family judges the crime and decides a proper punishment with the help of an individual in the commu-nity who is an expert in Islamic law. In Christianity, the institutionalization of restorative justice occurred in the late sixth century as Celtic monks developed a new approach of reconciliation with God that involved personal penance coupled with confession. Buddhist thought is encapsulated by the Dalai Lama’s statement that the “more evil the crime, the greater the opportunity for grace to inspire a transformative will to resist tyranny with compassion.”

Restorative justice also has deep roots in indigenous justice systems from various cultures, in-cluding American Indian, Australian Aboriginal, and Eskimo traditions. Sentencing circles, an informal process through which a case is heard and the punishment is decided through community dialogue and consensus, are rooted in the traditional peacemaking rituals of both Native Canadians and Native Americans.
Levin dates the shift from restorative to punitive criminal justice practices to the rise of William the Conqueror and the establishment of the British monarchy in the 11th century. William "decided that expanding the state's involvement in criminal law could help strengthen the nobility's fragile reign over the people," so he "made most individual acts committed against a person or his property offenses against the 'king's peace' or the crown rather than private matters to be resolved by the affected parties."

In the American colonies, similarly, "criminal prosecutions were primarily private matters, as victims sought retribution or restitution from offenders." Colonial courts "were far more informal than those today," he said, with case outcomes resembling those in modern civil courts more than criminal prosecutions.

He even finds traces of restorative justice trends in Texas' earliest history:

In 1821, Stephen F. Austin instituted Instructions and Regulations for the Alcaldes, relying largely on English common law. Under these regulations, murder was punishable by hanging. Other crimes against the person like battery and abuse were punishable by a fine not to exceed $100 and incarceration with hard labor on public works for three months. Additionally, in what might be considered an early form of restitution, those found guilty of battery, abuse, or ill treatment were made liable for monetary damages in a civil suit brought by the injured party. Austin’s guidelines took a restorative approach to crimes against property such as robbery and larceny making them punishable by a fine of three times the fair market value of the stolen property and incarceration at hard labor on public works. Austin’s guidelines also authorized citizens to use force to apprehend criminal wrongdoers by making a citizen’s arrest and delivering the suspect into the custody of the alcalde.

Both the 1845 and 1876 Texas Constitutions provided for trial by jury and the creation of local district attorneys in charge of bringing prosecutions. Texas built its first state penitentiary in 1848 and enacted the Penal Code in 1856, further laying the groundwork for the state’s current criminal justice system.
I was especially intrigued to notice the early use in Texas of triple restitution as punishment for theft. That concept dates all the way back to Mosaic law in the Bible, which mandated thieves pay their victims double restitution. To this day, in Texas, if you or I steal something as individuals we can go to jail, but if a corporation steals something, the crimnal penalty is still double restitution.

Levin provided a rundown of programs he places under the rubric of "restorative justice," recommending their use be expanded:

  • Restitution-based programs (including 14 "restitution centers" operated by the state),
  • Victims rights and services, including participation in trials and sentencing decisions,
  • Use of stronger probation and specialized courts to supervise offenders outside of prison, including drug courts to treat addiction, a root cause of crime,
  • Victim-offender interaction programs, and
  • Religious prison ministries: Specifically, he's a fan a Chuck Colson's InnerChange Freedom Initiative.
The restitution programs he examined appear to be especially effective: "These centers are residential facilities where offenders particiapte in activities designed to assist them in paying back individual victims of crime and society as a whole. ... Residents work full time, perform community service restitution, and attend educational and rehabilitative programs," though the total capacity in all 14 facilities is just 737 inmates. Moreover, "A TDCJ study indicates that restitution centers reduce recidivism, as only 21.3 percent of residents discharged from restitution centers were ultimately rearrested."

Besides reducing crime, these programs also reduce costs. Restitution centers are one of five types of "community corrections facilities" in Texas. In 2001, Levin reported, "it cost the state an average of $7,957 to place an offender in a community corrections facility, which is some $32,581 less than it costs to send an offender to prison."

I'm not a big fan of Colson's program. Leaving aside for a moment issues of state-sponsored religious instruction, most of its claimed reduction in recidivism stems from cherrypicking inmates who are less likely to re-offend, not from the rehabilitative genius of the program.

There's a lot more to Levin's study, and those interested should definitely
read the whole thing; it contains a lot of detail and extensive footnotes -- this brief summary hardly does it justice. I don't agree with all of it, by any stretch, but it's highly significant, I think, that conservatives in Texas are rethinking criminal justice policies at this level.

UPDATE, Levin replies via email:
"I have a few very minor clarifications. TPPF is now based in Austin - the entire operation moved here from San Antonio. Also, I did note in my report that the sectarian nature of Colson's program makes it less well-suited to being expanded as compared to Bridges to Life, which is ecumenical. Consequently, I only recommended any state role in the expansion of Bridges to Life."

Friday, September 16, 2005

Austin march against the Minutemen

In Austin, activists are using the annual parade celebrating Mexican Independence Day to protest anti-immigrant vigilante groups like the Minutemen. Here's some information about the event I received via email:

Embrace your Culture, Fight Racism (Minutemen), & Defend the Future of our Children
6th Annual Mexican Independence Day Parade

Stand up against racism and ignorance. The arrival of anti-immigrant vigilante groups like the Minutemen threatens to provoke more senseless violence from these fringe groups in Texas. March against prejudice, anti-immigrant groups, and racism; defend the future of our children. Our silence will continue to promote injustice if we fail to take action. We expect to see you in Austin.

  • Date: Saturday, September 17, 2005
  • March Time: 4:00 pm - 5:30 pm
  • March Location: Riverside and Congress
  • Rally Time: 5:30 pm -7:00 pm
  • Rally Location: State Capitol Building in Austin, Texas
Join the Texas United Latino Artists, TCJC, UFW, NAACP, ACLU, CIME, MALDEF, CDI-Dallas, UT Longhorn League of United Latin American Citizens (LULAC) Council, Jóvenes Inmigrantes por un Futuro Mejor de UT Austin, and grass roots groups from across the Lone Star State for a march to the south steps of the state Capitol.

Prison sex slave case begins Monday in Wichita Falls

More from ACLU.

Does Tarrant County need a public defender?

Does Tarrant County need a Public Defender office? It seems like it to me, but a new draft consultants' report shoots down the idea.

In 2001, Texas passed the Fair Defense Act (SB 7) setting standards for appointment of attorneys for indigent defendants, spurring a rise in defense costs statewide. But Tarrant (Fort Worth is the county seat) witnessed higher-than-normal increases, prompting the county to
commission a study (pdf) by the National Center for State Courts to identify why. (Grits obtained the document under the Texas Public Information Act.) Here's the crux of the problem:
During the first three years of its implementation ... the cost for appointed counsel in Tarrant County rose significantly. Specificaly, the county's expenditures for appointed counsel incresed by 87% between FY 2001, prior to the implementation of SB 7, and FY 2004 ($5,736,459 in 2001, and $10,764,443 in FY04). During the same period, statewide expenditures for court-apponted counsel rose by 40%.
Those extra costs mostly stem from the new system, not higher caseloads. Despite an 87% cost increase, over the same period "the number of cases in which court appointed counsel is assigned increased by approximately 13 percent."

Tarrant County appoints private attorneys through a decentralized system at 37 different locations. Since passage of SB 7, judges use a "wheel" system for assignments rather than their own discretion. The consultant proposed centralizing the process in a single spot -- a strategy that may have merit but which also suffers from tremendous logistical barriers and startup costs.

They rejected another suggestion, not because it's unworkable, but because stakeholders didn't like it: "Satisfaction with the status quo is a strong impediment to forming a public defenders office," the consultants wrote.

If Tarrant really wanted to control indigent defense costs, though, that'd be the way to go.
In Dallas, which has a public defender office handling half the indigent cases, defense costs increased just 10.6 percent over the same three years that Tarrant's went up 87%. Maybe folks in Fort Worth could learn something from their neighbor next door.

Statewide, Dallas, Colorado, Wichita, Webb, and El Paso counties presently have public defenders. Travis and Cameron counties use PDs only for juvenile cases. Reported the consultant, "The costs of indigent defense have been stated at $386 per client for counties with a Public Defender, and $422 for counties without."

Questions have been raised whether the Dallas office is underfunded and understaffed, they report (it handles half the county's indigent cases at 1/3 the total cost), plus "annual wage increases and the need for additional staff as caseloads increase are a reality for established governmental entities." However, "In a large urban jurisdiction there are certainly economies of scale that could keep the cost of indigent defense lower than using court appointed counsel."

The consultants announced that "Nothing in the review of the Tarrant County criminal justice system suggests the time is appropriate to establish a county public defender office," but that statement ignores the financial arguments they'd just laid out. Moreover, they seem to view a public defender office as the main possible solution to rising indigent defense costs if the county decides to get serious: "If the county continues to experience escalating costs for indigent defense that are deemed unacceptable, a proper planning mechanism should be established to assess the feasibility of a public defender system."

If they were really clever, Tarrant officials would begin "proper planning" now. If they wait three more years and indigent defense costs double again, taxpayers will be wondering why they didn't act sooner.

For more information, see the Texas Task Force on Indigent Defense's "
Blueprint for Creating a Public Defender Office in Texas."

See also from Grits: Bail policies juice Tarrant jail overcrowding.

Thursday, September 15, 2005

Dallas County Jail is bad for your health

Via Injustice Anywhere, the Dallas Observer looks at jail healthcare.

Bail policies juice Tarrant jail overcrowding

Like most local lockups in Texas, the Tarrant County Jail is overcrowded. But a draft report by the National Center for State Courts' consulting service aimed at finding solutions, obtained by Grits under the Public Information Act, ignored the key questions about how local bail policies contribute to jail overcrowding. (UPDATE: Report and district clerk's response/comments linked here)

As in Harris County, much of Tarrant's overincarceration crisis appears to be a self-inflicted wound. Harris' jail overcrowding largely stems from overuse of cash and surety bonds by local judges. In 1994,
according to a recent consultant's report, Harris County released a whopping 97% of defendants on "personal bond" (essentially a promise to appear) while today that number has declined to 39% (see the first chart in this post).

In Tarrant County, by contrast, just 16% of defendants are released on personal bond. The rest must pay to be released, or sit in jail awaiting trial. That means 84% of defendants' cases are being processed through cash bonds or bail bondsmen, not the county Pretrial Services division.

Though consultants didn't provide enough hard data to tell for sure, it's likely Tarrant's jail overcrowding crisis could be mostly resolved just by increasing the proportion of defendants eligible for personal bond to current Harris County levels. Arguably, even higher rates of personal-bond-release could be achieved without harming public safety.

In most places, Pretrial Services assess defendants to determine what risks they pose and whether release on personal bond is warranted. In Tarrant County, Pretrial Services doesn't even see most defendants. "The lack of reliable information regarding defendants" can lead to "unnecessary detention of defendants who pose little or no significant risk of nonappearance or dangerousness to the community," the consultants wrote. "[E]xperiences in other jurisdictions suggest that with appropriate systems in place to remind defendants of upcoming court dates, the proportion of defendants released on personal bonds in Tarrant county could be increased without having a negative impact on FTA [failure-to-appear] rates or community safety."

In a bizarre twist, though, the consultants claimed it would be
cheaper for the county to rely more on bail bondsmen than on Pretrial Services. That's because their analysis only looked at the narrow cost of supervising defendants -- not the overall cost including paying for incarceration pending trial, or buildng a new $80 million jail. "If Tarrant County's goal relative to the pretrial release of defendants is solely driven by fiscal concerns," they wrote, "then clearly Pretrial Services should be abolished and the county should rely exclusively on private bonding agents."

But that's absurd. Relying on bail bondsmen may let the Pretrial Services' budget remain low, but the extra costs for incarcerating people who can't make bail more than surpass that meager sum. Indeed, a few paragraphs down from the above ridiculous comment, consultants mention that increased use of Pretrial Services "could expedite the release of individuals on personal bond, thereby reducing the need to occupy precious jail space with low-risk defendants." If costs for "precious jail space" are included, Pretrial Services starts to look like a really good deal.

The solution to Tarrant's jail overcrowding problem is simple, even if the consultants didn't have the cojones to propose it: Allow Pretrial Services to screen every defendant, and start to release those on personal bond who pose low risks of flight and future dangerousness.

See also: Tarrant County Bail Politics Keeps Jail Full

Wednesday, September 14, 2005

Hay butts: The web is so cool

I wish the government compiled crib sheets of drug slang terms and distributed them to the public when I needed the information back in junior high. It took years to learn the terminology.

Even now, a "hay butt" is a joint? That's a new one.

Texas' new carry law: What does it mean?

UPDATE (May 30, 2007): New legislation clarified this law to make clear who can carry a gun in their car.

So can law-abiding Texans carry a loaded firearm in their personal vehicles now, or not?

With the passage of HB 823 (Keel/Hinojosa) into law September 1, legislators and the National Rifle Association believed they'd finally resolved a longstanding dispute that for years turned thousands of legal gun owners into law enforcement targets. Texas law lets drivers carry a weapon in their car when they're "traveling," but the definition of traveling has never been legally settled.

So the Legislature passed HB 823 creating a "presumption" that the driver is "traveling" unless one of five things is true:
(a) the weapon is in plain view, (b) the defendant is a convicted felon, (c) it's a public, not a personal vehicle, (d) the defendant committed a Class B misdemeanor or worse, or (e) the defendant is a gang-banger. (Conflict alert: I testified at the hearings in both chambers in favor of the bill on behalf of ACLU of Texas.)

The new law seemed pretty straight forward. If the gun is legal, you're not a crook, you're driving your own car, and if the gun is stowed (i.e., you're not driving around with it laying on the passenger seat like an idiot), then you can carry a gun in your car when you're driving. At least, that's what legislators thought they'd passed.

Nearly immediately, though, prosecutors and police began to say they wouldn't enforce the new law, or, rather, would continue to enforce the old one. Harris County DA Chuck Rosenthal led the charge, announcing instructions to officers to continue to make arrests for UCW (unlawfully carrying a weapon) just like they always had.

On the District Attorney Association's public user forums, a discussion occurred that gives a good idea of what the arguments will ultimately look like when this plays out in court. Several prosecutors are looking for a way to agree with Mr. Rosenthal. A Department of Public Safety lawyer announced she thought the old court cases on "traveling" were still applicable, while another from Columbus announced:
I am giving the officers in my county the following instructions:

A person is not a traveler unless he is on an overnight trip, still in the course of the journey, and has not reached his destination.
That's simply ignoring the new law. I wonder what prosecutors are telling officers in other jurisdictions? Fortunately, cooler heads emerged in the DA's discussion forum. After that interpretation was challenged, an attorney with Texas Parks and Wildlife (which oversees Texas game wardens) weighed in with this analysis:
As I read it, the state must be able to prove beyond a reasonable doubt at every UCW trial one of the following: Defendant is a gang member, was breaking a law, was prohibited from possessing a gun, was not in a private vehicle, or was carrying a handgun in plain view. The presumption cannot be rebutted by showing the [driver] was not really "traveling." What matters is whether the state can prove (or disprove, as applicable) one of those 5 facts beyond a reasonable doubt. I don't see any other way and have advised TPWD officers accordingly. ...

On the surface the new law is worded as a presumption, but in substance at least one of the 5 facts must be treated as an element of the offense which the state must prove at trial (or disprove, depending on which one of the 5 is chosen). ...

For what it's worth, I have no reason to believe this new law will increase crime. It may even have a deterrent effect as criminals realize that more honest citizens will be armed in more situations.

That's how legislators understood the bill when it was debated and passed. I predict, at the end of the day, it's how the courts will interpret it (though I'm no attorney and could certainly be wrong). Bill author Terry Keel issued a statement on the controversy, siding with the Parks and Wildlife intepretation of the statute:
“HB 823 provides for a legal presumption in favor of citizens that they are travelers if they are in a private vehicle with a handgun that is not in plain view, they are not otherwise engaged in unlawful activity nor otherwise prohibited by law from possessing a firearm, and they are not a member of a criminal street gang,” said the bill’s primary author, Rep. Terry Keel, R-Austin.

“In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle,” Keel said.

“There is no longer the need for a law enforcement officer to apply a subjective definition of what constitutes “traveling” where the citizen is cloaked with the presumption per the terms of the new statute,” he said.

I'll bet that makes Chuck Rosenthal apoplectic. Ironically, now that Keel's running for a seat on the state Court of Criminal Appeals, there's a good chance he'll actually be a sitting justice by the time any case reaches the highest levels. Having the bill author seated on the bench might give justices special insight, one could imagine, into the specifics of "legislative intent."

UPDATE: Of Arms and the Law wonders if police officers who make arrests without discovering evidence voiding the presumption might open themselves up to wrongful arrest suits. Injustice Anywhere thinks Chuck Rosenthal's on a power trip. The Waco Herald-Tribune (9-16) covered the controversy. There's a good discussion at Texas Concealed Handgun of San Antonio.

A prison guard's aversion to snitches ...

From Patriotic Rants, read a former prison guard's tale of guarding a snitch in federal witness protection, written by a California parole officer, blogger, and Grits reader. While writer J.J. King, certainly no liberal softy, says he understands snitches must be used, he declares:
I have an old prison guard's aversion to snitches. My feeling on the subject is that when one makes the decision to violate decent society's mores and break the law for a living, one should at least have the decency to embrace "the code".

The code is simple: stand up crooks don't tell on their partners, or any other criminals for that matter. This is beside the point, and it is just my opinion, but the prison system of old was a much safer place when inmates practiced the code.

Read the whole thing to learn how snitching can endanger more than just the snitch. BTW, see also King's terrific Katrina-inspired post questioning whether California has adequate evacuation plans in place in case the prison-laden Tulare Basin floods -- areas near the prisons flooded in 1997.

Tuesday, September 13, 2005

Killing Frances Newton

I don't oppose the death penalty for Frances Newton, who is scheduled to die tomorrow night, because I believe she didn't kill her husband and children. I think we can't know for sure, and that's the point. I don't trust Texas' system not to make mistakes. Actually, from what I've seen, occasional mistakes, often big ones, seem nearly inevitable, and certainly constant.

Newton's dead husband's parents say there's enough doubt to stop the execution. How in heaven's name can the government be entitled to more terrible retribution than they desire?

That's the stuff that bugs me. Sure, terrible things happen in the world, and in theory there are folks who need killing. But do you trust Texas' criminal justice system to pick the right ones?

Monday, September 12, 2005

FBI violates snitch rules, says Inspector General

Via Talk Left, the New York Times announces a just-released audit from the Office of the Inspector General revealing that FBI agents "frequently violate" rules regarding undercover activities and confidential informant use. The whole thing is a fat 300+ pages, but the link is here (pdf). Reported the Times:
A review of 120 confidential informant files from FBI offices around the country found violations in 104 cases, or 87 percent, Inspector General Glenn A. Fine said. His 301-page report, parts of which were blacked out, examined FBI compliance with rules that govern most criminal investigations.

The report said agents failed to assess informants' suitability or get permission for informants to engage in activity that otherwise would be illegal. Agents did not convey proper instructions or tell prosecutors when informants had committed crimes that were not authorized by their FBI handlers, Fine said.

Regular readers know I'm shocked, shocked, SHOCKED, to hear that. I'm not sure I'll make it through the whole thing, but I printed out the chapter on snitches.

UPDATE: See Slate's coverage. And more from Federal Crimes Blog.

What can happen when you snitch?

Lots can happen when you decide to become a confidential informant, i.e., a "snitch" for law enforcement. Sometimes snitching gives criminals protection to continue their crimes. Cops might steal the money you were supposed to be paid. Or, the cop might become your informant. Perhaps you'll help bust a ring of rogue baking-soda dealers. You might get the crap beat out of you. Maybe the DA will get you to snitch against your own lawyers. Or maybe you'll get a chance to testify against the Sheriff's son.

Sunday, September 11, 2005

John Roberts & the Fourth Amendment: Judicial activism to allow police searches

Would President Bush's nominee for US Supreme Court Chief Justice, John Roberts, defend or detract from the people's right to be free from unreasonable searches and seizures, supposedly guaranteed in the Bill of Rights by the Fourth Amendment? The early tea-leaf reading doesn't look good.

Professor Thomas Clancy offers up this analysis of the eight search and seizure cases decided by Roberts during his brief tenure on the D.C. Circuit Court of Appeals. He upheld the government's search or seizure every time. Most famously, Roberts upheld the arrest, handcuffing and booking into jail of a 12-year old girl by the Washington D.C. transit police for the heinous crime of
eating a single french fry on the train platform (basing his decision, incidentally, on the Texas case, Atwater v. City of Lago Vista).

With the caveat that examining just eight cases hardly addresses the full range of Fourth Amendment issues Roberts might face on the court, Clancy offers the following general observations: "Roberts does not have a high standard for finding probable cause. Nor does his view of articulable suspicion ... appear to be particularly demanding." That's not very encouraging.

Clancy thinks many judges and academicians would find Roberts' probable cause standard "set too low," but he thinks Roberts' position is more or less "in tune with the current Supreme Court analysis." I don't feel too reassured, though, since the Fourth Amendment has been more or less gutted in recent years by a Supreme Court anxious to clear the way for nearly unlimited police searches.

Perhaps most distressing, Roberts seems prepared to engage in judicial activism to maximally allow police latitude to search. "Judge Roberts demonstrated a willingness to depart from the lower court's reasoning in [two cases] to uphold the search," Clancy wrote. "Many courts would not engage in such analysis, finding instead that the claim is unpreserved." In other words, Roberts imposed his own judgment over that of the trial judge, even though the prosecution never made the arguments on which he based his decision.

Indeed, Roberts appears to feel unbound by the judgments of those beneath him in the system, but is willing to impose his own views, at least if they support more searching. In
United States v. Holmes, Clancy says Roberts substituted his own judgement for the objective belief of the peace officer at the scene in order to justify a search -- the officer found a drug scale during a "Terry frisk," which is supposed to be a non-invasive search to check for weapons.

Even though the officer in Holmes believed the square object was a scale, not a weapon, Roberts ruled it "could have been another type of weapon, a box cutter, for example," so a full-blown search was justified. Writes Clancy, "Such speculative reasoning is inconsistent with the proper scope of a frisk; to hold otherwise permits general exploratory searches, effectively obliterating the distinction between the limited intrusion authorized by a
Terry frisk and a search." That's pretty disturbing -- the line was already awfully blurry.

The notorious french fry case, says Clancy, raises questions of how Roberts might interpret the Fourth Amendment's reasonableness requirement. One could view Roberts decision as indicative that he "would join Justices Scalia and Thomas" in viewing the definition of reasonableness as hinging on the state of US common law in 1791, a fairly regressive standard that Clancy says "is, in my view, incorrect and unworkable." The tea leaves aren't clear, though, and Clancy also thinks Roberts might look to the "essential purpose" of the Fourth Amendment, eschewing the current competing standards.

That's an optimistic view. Given Roberts' pro-search positions in every case that came before him, it seems unlikely that he'd throw his weight on the court behind new restrictions on searches. Janice Rogers Brown, he ain't.

Via CrimProf blog UPDATE: Commenters at Reason Hit and Run and Last Night in Little Rock at Talk Left had additional comments.