Sunday, December 31, 2006
I haven't finished my year-end reflection on the Top Ten Texas Criminal Justice Stories, and Kathy and I are about to head out for a drive in the Hill Country. So until tomorrow talk among yourselves, let me know what's happening in your neck of the woods, or tell me what you think were the biggest criminal justice stories in the state for 2006.
Thanks for reading, and I hope 2007 improves for all of us.
Saturday, December 30, 2006
Friday, December 29, 2006
In Wichita Falls, the Youth Opportunity Center wants graffiti artists "to come out of hiding and use their talent to display positive words, messages and images in the community," reports the Times-Record News.
It sounds like in this instance Barry Cooper's video wouldn't have helped much. ;) The former drug task force cop's controversial Never Get Busted Again DVD went on sale this week.
Here's a portion of the letter to the DAs and CAs from the Texas Council of Community MHMR Centers:
It is estimated that there are approximately 54, 255 individuals requiring crisis services annually in Texas.That $82 million figure represents a phase-in of a larger program that will ultimately cost $222 million per biennium, according to a September report (pdf) by the Department of State Health Services. That report identified several ways enhanced crisis care might help local jails, specifically:
Our inability to serve these individuals adequately results in significant impacts upon hospital emergency rooms, county jails and law enforcement.
The Department of State Health Services earlier this year established a Crisis Services Redesign Committee to develop recommendations for mental health crisis services that are delivered through the local mental health authorities.
To see a full copy of the Crisis Services Redesign Report, go here.
The Committee recommended the following core services be available in communities to treat psychiatric emergencies:
The Department of State Health Services is requesting $82 million in their Appropriation Exceptional Item to begin implementation of a "mental health crisis system redesign."
- Crisis hotline services
- Psychiatric emergency services with extended observation services (23 to 48 hours)
- Crisis outpatient services
- Community crisis residential services
- Mobile outreach services
- Crisis intervention team (CIT) mental health deputy/peace officer program
If you wish to get involved, please contact:
Associate Director - Behavioral Health
Texas Council of Community MHMR Centers
- mental health services often are not available or accessible so that the only placement, other than the street, is jail
- long waiting times that law enforcement officers experience when escorting patients to health facilities result in jail placemet so that officers can return to their other duties
- committee members and commenters statewide in agreement that jail for people whose need is for mental health services should not be an option
Probably about 20 percent of the inmates in any given jail or prison are going to be mental health patients. That’s about the percentage here in Austin. We need a system to treat people in a humane environment where they are going to get proper care and it will keep them from rotating in and out of the system.There's no question the effect of the shortage of mental health treatment facilities on the criminal justice system looms large. When a mentally ill defendant is in "crisis," to use the technocratic phrase, i.e., in the throes of mental illness and unable to engage in rational thought, a court will typically declare them "incompetent" to stand trial. That then requires "competency restoration" services from mental health crisis treatment centers. But the state hospitals are utterly full, and at any given time dozens or even hundreds of defendants may be waiting, often for many months, for treatment beds to open up.
Until then they're housed in the county jails. They've been found guilty of no crime yet. Indeed, the courts won't let them plead "guilty" until their competency is restored. That's a contributing reason why the report found that "people with mental illness who commit misdemeanors stay in jail longer and use more criminal justice resources than others [who are] not mentally ill."
In misdemeanor cases, it's not uncommon at all for a defendant to spend much longer waiting for a state hospital bed to open up to be treated and declared competent than the sentence would be for their alleged offense. (See a particularly unfortunate individual example of this from Injustice Anywhere.)
For all that, the DSHS report never specifically mentions competency restoration services, neither in the text nor in the proposed $222 million budget. But that remains a big concern for DAs, Sheriffs, judges and others in the criminal justice system. Maybe it's the case that expanded MH capacity allowed by the new spending would simply be enough to resolve the problem, but it's not specifically addressed either in the report or in Mr. Lovelace's letter.
I'll try to find out whether competency restoration funds would be addressed by this "Exceptional Item," or if the Lege would still need to pony up for those costs. Or if any reader knows more details, please let me know.
See prior related Grits coverage:
- Chincy state hospital funding leaves mentally incompetent defendants stranded
- Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
- More counties grumbling at backlog of incompetent defendants in county jails
- MH funding not enough, but better than a sharp stick in the eye
I admire Judge Kent for spearheading this idea in the face of at best grudging support from local prosecutors. Local DA Matt Bingham signed off on the idea in theory - indeed after the spanking on the jail vote he had little choice but to go along with the program in public. So far in the trenches, though, his ADAs don't appear to be giving Judge Kent much support. Reported the Telegraph, "Prosecutors objected to the placements of all but one of the eight people, Smith County District Attorney Matt Bingham said." Everyone the DA objected to was a nonviolent offender with no prior felony convictions.
You know, if Smith County prosecutors are going to object to nearly every eligible program entrant, that leaves Judge Kent and her colleagues on the bench in a position where they must begin to more routinely ignore the wishes of the District Attorney. Maybe it's just me, but in the long run I doubt that's a wise move for Mr. Bingham's office - better to cooperate with the judges' program and assist in achieving its goals than to thwart its aims in the courtroom then second guess the judge in the media.
In any event, with prosecutors' reduced to political posturing, it was left to the judges and the probation department to make decisions about who would enter the program:
Tyler's new program ought be a model for other counties struggling with jail overcrowding, and there are a lot of them. But it's also important to remember that this one program won't be enough to fix the whole problem. Indeed, Judge Kent originally asked county commissioners and her fellow judges to approve a much more aggressive array of incarceration alternatives, including a special sanctions court modeled on successful initiatives in other counties. This more limited AIP was a compromise, a first baby step away from the spendthrift, lock-everybody-up approach that DA Bingham still can't seem to break free from.
Judge Kent said probation officers went over the jail list and selected several individuals who would be good candidates for the program, talked to the inmates to see if they were interested, and brought them to the Alternative Incarceration Center housed in the courthouse basement.
The district and county court-at-law judges all approved the program initiated Thursday. Judge Kent was selected to preside over the felony cases, and County Court-at-Law Judge Tom Dunn was selected to oversee the misdemeanor cases. Judge Kent said she was presiding over Dunn's cases on Thursday because he was out of the office.
"The Alternative Incarceration Program is a very new and ambitious and I hope a very beneficial program for the community," Judge Kent said.
She said it was an opportunity for inmates who would have otherwise been sent to jail or prison. Because of the crisis in jail overcrowding in Smith County and in Texas, it is necessary to look at other options, Judge Kent said, adding that the program was not in lieu of building a new jail.
If the program works, she said, it will reduce the number of new jail beds needed locally and statewide. The program provides the opportunity for rehabilitation and integration into the community. Instead of being locked up, the defendants will be required to report to probation officers daily, she said.
Judge Kent said that public safety is important, and that officials are carefully screening inmates that are non-violent offenders.
Those in the program will have access to counseling, treatment and supervision for substance abuse and mental illness, she said. They will also be required to have jobs, which will integrate them into the community. She said the program will also provide the opportunity for restitution to be paid to the victims and it has education benefits for the defendants.
"This is not just probation," Judge Kent said. "There is a lot more expected."
She said it was important for the "first class" of people placed in the program to recognize the opportunity and responsibility.
"Some people would love to see this program fail ... because they just want to lock people up with no hope," Judge Kent said.
She said that if a few of the people placed in the program fail, they would go to jail or prison. But, she said, if the majority of the people fail, the county would quit the program and go back to building bigger jails.
The judge said her focus was to give people another chance to stop victimizing people and to make something of their lives.
Still, it's a first step that goes counter to many decades of momentum in the other direction, so in that sense it's a bigger deal than the small number of folks in the program imply. I didn't go home to Tyler for Christmas, so I need to get up there soon to visit the family, anyway. Maybe when I do I'll try to drop in to visit the new AIP center.
UPDATE: I emailed Judge Kent this post and congratulated her on the program's launch; here's how she responded:
Thank you for your note. We did start up our program. It has a few organizational issues we will work on but I am confident that this will be a positive program for our community. Our goals are:
1. Reduce the Jail population; 2. Focus on public safety; 3. Provide intensive rehabilitation services to offenders in the day reporting center 4. Help reintegrate offenders back into society with a focus on obtaining and maintaining gainful and lawful employment, drug and alcohol counseling, mental health counseling, housing arrangements, and other community assistance and 5. Provide restitution to victims of crime and child support to children and families in need.
Our goal is to place 100 defendants in the program and in the process also expedite other non Alternative Incarceration Center program defendants in case disposition.
If you check back with me in 30 days, I will have a better grasp on how the program is actually working and whether the public, the defendants, and victims are benefiting from its implementation.
Thanks a lot, Judge Kent! I'll definitely be tracking yall's progress and look forward to more updates.
See prior related Grits coverage:
- Tyler judge: End jail overcrowding with community supervision of nonviolent offenders
- More on Tyler's alternatives to jail overcrowding
- Incarceration Alternatives: From Smith County, a plan emerges
- Update: Tyler Alternative Incarceration Plan, Day Reporting Center funded
- Tyler voters: Jail bonds a 'No-No"
- Jail bond vote may become annual affair in Tyler
Thursday, December 28, 2006
Calling more prisons a "piece of pork" nails the situation exactly. It's throwing money at a problem before even trying to think about creative solutions. Said the Times-Record News:
When members of the Texas Legislature meet starting in January, one bill placed before them would have us build more prisons.
This piece of pork should be tossed to the dogs.
Texas doesn't need more prisons.
It desperately needs more common sense.
Officials at the Texas Department of Criminal Justice want more prisons because their backs are against the wall.
They're pinned there because this state's elected majority consistently favors "getting tough on crime" so as to be able to return to Austin year after year.
Getting "tough" has literally meant throwing away the key for far too many men and women who have actually done very little wrong.
Amen, indeed, and hallelujah! The second editorial ("Our opinion: Unwise spending," Dec. 26) goes on to criticize wasteful prison spending, and it's so good I want to reprint the entire piece here:
Sen. John Whitmire of Houston, who is chairman of the Senate Criminal Justice Committee, put it mildly when he told Ward: "It appears we're probably wasting millions of dollars filling up beds with people who don't need to be there."
Whitmire says we should not build any more prisons until Texans know exactly who is behind bars, why and whether they really do need to be there.
We say, Amen.
Spend a couple of hours talking with inmates at the James V. Allred Unit of the Texas prison system, and the main topic of discussion is not the food or the noise or the hard bunks.I've criticized the Times Record News in the past for what I considered their role as cheerleader for some of the worst drug war abuses in their region. But these two editorials represent a thoughtful and welcome change in their posture on these topics. Indeed, I couldn't be more pleased to see the MSM nearly everywhere rethinking these issues.
They want to know why there is no drug rehab program, why there aren't more and more relevant training programs, why there has to be a waiting list to get into classes to earn a GED, why they can't earn a degree so as to either just better themselves or to prepare for life on the outside.
And that's just a partial list.
Texas prison officials are asking for 11,000 new prison beds.
One reason they don't need them was cited in an editorial appearing here on Sunday. There are thousands of prisoners who are waiting for parole, but can't get out because the programs they have to complete to do so are not available! According to inmates at Allred, that's the case here.
Another reason: Thousands of inmates don't need to be in prison at all. They didn't commit violent crimes. Some of them are there for having less than gram of dope on their person.
The way Texas laws are written and enforced right now, the default position is warehousing - not rehabilitating those behind bars.
Texas doesn't need more warehouses.
It needs more realistic laws.
Quite a number of the laws on the books today were put there to make legislators look good back home.
They like to run on a "get-tough-on-crime" platform because it appears that kind of stand gets them elected over and over again.
But getting tough on crime in an unrealistic and unreasonable way just costs taxpayers more and more money over time.
And it needs more treatment programs, more rehab programs, more opportunities for inmates to learn trades and develop skills and earn associates or bachelor's degrees.
Texans today spend more than $30,000 a year to keep someone behind bars.
We spend less than 15 percent of that per year to educate a child in public school.
Wouldn't we be better off keeping young people in school and teaching them something valuable for their future?
How many lives would we improve if we spent $30,000 on each child's education rather than on their imprisonment?
To the Legislature, here's the message Texans should be sending: Stop posturing. Start investing, not just in public education but also in programs that will rehabilitate prisoners. Don't build more warehouses.
And do change laws that guarantee human beings will fail.
I think your point about [Gregg] county unwittingly amassing more expenses by needlessly jailing defendants who qualify for bond is right on.Thanks, Dominic. Those are all excellent ideas.
Policy makers in Gregg County may want to examine whether overly-restrictive bond practices make it impossible for defendants to hire their own lawyers. If they're forcing most defendants to use a surety instead of taking advantage of personal recognizance options, they're probably forcing their [attorney] appointment rates way up. A January 2005 PPRI report on the impact of the Fair Defense Act pointed out that: "if defendants on the financial brink of indigence apply all their assets to obtain release on a high bond, they may then be less likely to have resources remaining to pay a private attorney."
They may also want to look at the types of cases that may be clogging their system. I'd be willing to bet that the county is struggling with a large number of Driving While License Suspended cases. Lots of counties have complained about how these particular cases have contributed to a huge backlog. Midland County has even created a separate non-criminal docket to deal with people who have had their licenses suspended and were arrested for DWLS.
Beyond that, it sounds as if one of Representative Merritt's biggest complaints centers on the disparity between local and state spending on indigent defense services. It seems like he might want to encourage other state policy makers to help offset local spending by investing in better delivery models such as public defender offices. Kaufmann County is well on its way to setting up a PD office with some seed money from the Task Force on Indigent Defense. Maybe if local leaders start working across county lines, they could get started on a regional office for East Texas.
Under current law, when determining whether a defendant is financially eligible for appointment of counsel the court "may not consider whether the defendant has posted or is capable of posting bail, except to the extent that it reflects the defendant's financial circumstances as measured by [other factors listed in statute, e.g., income, assets, etc.]." CCP 26.04m. Furthermore, a judge can't incarcerate someone who is released on bail solely because the person requests the assistance of counsel. CCP 26.04r.Another thing that shows "how powerful the bond lobby is" was this lawyer's request to remain anonymous in these comments.
I read the underlying article, and it's not entirely clear to me what Merritt is proposing. It doesn't sound like he's proposing legislation (deleting the provisions I just cited, for example), but more like he wants a local vote on whether the county will pay for certain indigent defense expenses. Deleting those provisions wouldn't get them too far, anyway, since they would still face the constitutional law, which does not make a bond/no bond distinction.
A couple of years ago, a Mississippi county sued the state, arguing that it was illegal for the state to push indigent defense expenditures onto the counties. The county's suit survived a motion to dismiss but the county lost on the merits -- so basically the court held that it was possible for the county to pursue that kind of claim, but the county did not present facts sufficient to prove the alleged illegality. The county continued to provide indigent defense services while the suit was pending and thereafter, so the county itself was not sued for violations of the 6th Amendment.
The answer is bond reform, particularly something like partial cash bond. You're exactly right that keeping more people in jail only costs the county more money. The counties should want to get more pretrial detainees out of jail -- at best, enabling people to maintain employment while on bond will reduce the demand for indigent defense services, and at worst at least the county will only be paying for the lawyer instead of the lawyer and jail space. Partial cash bond would allow defendants to pay the 10% that currently goes to bondsmen to the counties. Defendants could assign that 10% to a lawyer or use it to pay fines and costs at the end of a case.
Bexar County used to have a program like this, before the bondsmen lobbied to take the option away, and the judges loved it -- more retained attorneys, and the attorneys had a vested interest in getting the clients to court because they lost their fee if the Defendant bond forfeited the 10%. I would not be surprised to see someone from the Bexar delegation float a bill to restore partial cash bond. Right now the Code basically sacrifices the counties to the interests of the bond lobby, and the fact that counties aren't screaming about this more shows how powerful the bond lobby is.
I'd like to learn more about the former system in Bexar County. Bail bond lobby or no, I like the idea of a system that uses economic incentives to compel its actors to comply. If you're not going to have a public defender office, using cash bonds to pay lawyers for the indigent makes a lot of financial sense, and if their fees depended on it, you'd better be sure those lawyers would get their clients to court on time.
Public defenders toil daily in the courtroom trenches protecting constitutional rights for very little money and even less glory.I'm glad next year's Blawg Review Awards will include the PDs; Grits was proud to receive the Blawg Review's "Equal Justice Award" this year, but certainly the public defender blogs add great depth and front-line street cred to the legal blogosphere, and deserve recognition. Go vote for your faves.
Now there's a blog awards just for them. Sentencing Law and Policy explains here.
But don't take our word for it, head on over to the Inaugural 2006 Public Defender Blog Awards and check out the diverse and thoughtful blogs and cast a vote.The 2006 Blawg Awards didn't include a category for public defenders, an oversight that will be remedied next year. But there are some good sites there, so mosey over there too and check out the winners.
Gee, why not ask the state to pay for the District Attorney's office, while you're at it? Merritt is certainly right that indigent defense costs are growing, but his solution would cost taxpayers even more.
Specifically, Merritt said he wants to eliminate indigent defense costs from Gregg County's budget, so long as an inmate has the financial ability to make bail.
"Should we have to pay for an attorney even if the person can make bond?" Merritt asked. "This is more about a state mandate that we put on the county, without the funds to pay for it."
He said Gregg County taxpayers shell out as much as $3 million annually to pay for criminal defense attorneys for those who cannot afford one.
"It's astronomical, and it's growing," Merritt said. "The public should vote as to whether or not we want to pay for indigent defense with local funds, then it would be tested as to whether it's constitutional."
If the rule were that people who make bail don't qualify for indigent defense, then people who can't afford both bail and a lawyer will sit in the already overcrowded jail, at taxpayers expense. So he'd be reducing one expense and increasing another. If enough defendants made that cost-benefit analysis and decided to stay in jail to get a lawyer, it could require expanding the jail which would be a LOT more expensive than paying for lawyers.
Ironically, Merrit's very next complaint in the article was that state policies on transferring convicted prisoners are contributing to Gregg County jail overcrowding. But his proposal would do more to fill up the jail unnecessarily than the state transfer policy he derides (I've got a separate post brewing in me on that topic for another day).
Whether state or local taxes pay for indigent defense is something the politicians care greatly about and the public (justly) couldn't care less - it's all their tax money, whichever government entity pays. The average citizen wants quality services provided in an efficient, cost efffective manner, but who cuts the checks is just insider baseball.
The better solution here is simple and could be implemented at the local level: Gregg and other counties experiencing high indigent defense costs need to move to public defender systems to save money, provide higher, more consistent quality defense, and ultimately to move cases more quickly through the system.
That'd be a lot cheaper and easier than some cockamamy scheme that even Merritt thinks may not be constitutional.
Wednesday, December 27, 2006
This spring, the phrase on the tip of every beat reporter’s pen was “use of force.” Between February and March, a string of officer-involved shooting went down, six in 13 days, leaving three civilians dead. In every case, the top brass stood by their men. [Former Chief Albert] Ortiz had set up a police-shooting review team, but 10 months later, SAPD are still trigger happy, most recently busting a cap in the head of an innocent young black man in broad daylight. The biggest bullet-related embarrassment of the year was the $24,500 settlement with a guy who was shot in the leg when a cop dropped his firearm in the crapper.Things didn't improve from there, Maass reports, describing 2006 as a "year of police disgrace." Chief McManus' first major tuff on crime initiative was criticized for exacerbating Bexar County's jail overcrowding problems with little public safety benefit. Maass recounted that:
McManus assembled a special “Crime Response Unit,” a super-force of more than 40 officers to clean the streets. In two months, the Princess Bride-style brute squad hauled in nearly 1,900 criminals. However, almost 75 percent were misdemeanants and dumped into an already brimming jail population. This lead County Commish Tommy Adkisson, master of the colorful soundbite, to use the unforgettable P-word: “I’m not saying don’t arrest people ... But let’s not load up the jail with the plankton of the judicial system either.”Other SAPD difficulties included several incidents of serious officer misconduct. E.g.,
In 2006 a cop was convicted of raping a woman he’d pulled over for a sobriety test, and another was convicted of fondling several nurses. The worst of the worst, though, was the cop who brutally raped a transvestite prostitute. The Feds will pursue life imprisonment when he’s sentenced in January. ...McManus also must mop up botched attempts to digitize crime records that resulted in many records lost or destroyed and wasted nearly a million dollars. Taken as a whole, it's quite a litany. Read the rest of Maass' report.
And then there’s the uncategorizable embarrassments, such as the detective who allegedly shoved Justice of the Peace Albert McKnight; the cops who were busted on federal drug charges; the Internal Affairs officer who was arrested for scratching the hell out of her dentist husband. Weapons, a badge, and a laptop were stolen from a visiting out-of-state SWAT team’s rental car and then-deputy chief Rudy Gonzales’s own cruiser was burgled in April. The proverbial cake was taken by traffic officer Israel Butler (already under investigation for reporting telephone death threats that the SAPD believes he called in himself) who created a huge administrative mess by completely fabricating a shooting.
Here's hoping things improve for SAPD in 2007.
UPDATE: A helpful reader emails to point out another phantom traffic stop shooting that triggered a manhunt by a San Antonio police officer in October. At least the SA cop didn't shoot himself.
A Tyler County Sheriff’s deputy who said he had been shot during a traffic stop early this month has been fired after he confessed that he shot himself and fabricated the traffic stop story.
In a release from the sheriff’s department, Deputy Gary Parks was relieved from his duty with the department after confessing Thursday, Dec. 21 that he lied about being shot in Hillister after making a traffic stop.
Parks, a 12-year veteran with the sheriff’s department, originally told investigators he had been shot twice after making a traffic stop in Hillister. He gave police a description of the suspect and authorites in a four-county area searched for the assaialant.Parks may now be facing criminal charges by the Tyler County District Attorney’s office for filing a false police report.
NUTHER UPDATE: Radley Balko says, "In raids I've researched in which a SWAT officer is shot, about half the time the bullet comes not from the suspect, but from another officer, or from the wounded cop himself." One wonders, how many of those make up suspects to blame?
Officials in Walker would do well to heed Nacogdoches' Judge Kennedy's advice and look at why their jail is full. The tools to solve Walker's overincarceration problem lie entirely within the purview of local officials. Reported the Huntsville Item ("County jail staff keep watch on overcrowding," Dec. 21):
“The biggest impact we see is from Friday evening through Monday morning,” [Sheriff Clint] McRae said. “We could actually face an overpopulation issue at any time during the weekend.But is the only way to solve that problem really to build 500 new beds? I don't think so. Judge Kennedy in Nacogdoches understood one big missing piece in the Walker Sheriff's analysis: Too many people in that baseline of everyday prisoners are low-level offenders incarcerated awaiting trial.
‘We may go into a weekend with 145 or 150 inmates and come back on Monday morning and it’s liable to be 175 or 180 people ... well over our capacity.
A decade ago, 30% of jail inmates statewide were incarcerated awaiting trial; today the figure is about 48%. In Walker County as of December 1st, 101 jail inmates (2/3 of the 152 incarcerated that day) were there awaiting trial, 42 of them for misdemeanors (Source: Statewide county jail population report).
So more than 25% of Walker County jail inmates are incarcerated awaiting trial for misdemeanors! Compare that to Harris County (Houston is the county seat), where only 4% of inmates fit that category as of December 1.
Simply reducing the percentage of pretrial detainees to the statewide average would slash Walker's baseline by 27 inmates, which is about the size of the Sheriff's weekend surge. With more resources devoted to pretrial screening, Walker County should be able to get even lower than that. If Walker jailed misdemeanants pretrial at the same rate as in Houston, the total number of jail inmates would decline by 35, or 22%.
Further reductions would be possible, for example, if the county created a public defender office to move each weekend's cases through the system more quickly. (That would probably save them money on indigent defense costs, too.) Alternatively, jail administrators in Midland and San Antonio have suggested that officers should issue a summons instead of arresting certain low-level offenders. Progressive sanctions for nonviolent probationers could reduce the number of defendants incarcerated for probation revocations. There are actually many ways to skin this particular cat.
Just like in Tyler, where voters rejected jail bonds and officials are demanding alternatives to jail building, Walker County residents have more options than the ones being portrayed to them. Sheriff McRae certainly can't fix the problem on his own, but neither should Walker taxpayers suffer unnecessary costs for increasing jail capacity by up to 500 beds just because local officials can't work together to find less expensive options.
Exactly. That's the aspect of jail building that Harris County officials and Houston Chronicle editorial writers seem to be ignoring: It's not the cost of building new jails and prisons that should most concern taxpayers, but long-term operating costs. Wise governments don't assume such burdens without evaluating alternatives.We have been very reluctant to spend money on a jail expansion because, after the initial construction cost, we would burden the local tax payers with a significant YEARLY increase in operational cost. Using the 2007 jail budget as the base, it would cost approximately $750,000 more a year to operate an additional 96 beds. This kind of commitment can not be made without a detailed study to find other options.
Kennedy suggests a formal evaluation process be established to study the causes of overcrowding more thoroughly before any construction plans are developed or bond packages proposed. While Kennedy said she is "confident that there [are] even more creative options that can be applied to this problem," she identified two categories of inmates who could be targeted for jail population reduction: defendants awaiting trial (68% of the local jail population), and convicted inmates awaiting transfer to state prisons (11% of the jail population).
Only the Texas Legislature could help with expediting transfers of inmates to prison faster - with prisons full and the state renting extra beds already, the state's basically in the same situation on that score as the counties. But local officials, especially judges and prosecutors, can have a big impact on the number of defendants awaiting trial, especially for low-level offenders. (See prior Grits coverage of pretrial detention.)
As Judge Kennedy correctly identifies, no single entity can control how many inmates are in the jail. Instead, a dynamic system operated by poorly coordinated, occasionally competing interests drive jail numbers up or down. Wrote Kennedy:
She suggests all these actors, particularly the local folks, participate in a "due diligence" study to seek alternatives to building more jail space. In many counties that's a process that's never occurred: 'Jail 'em and Build 'em' have been the watchwords for many a year, with taxpayers footing the ever-expanding cost.
County jail population is effected by the following decision makers who have certain roles of power, authority and responsibility: state legislature, Texas Department of Criminal Justice, Texas Commission on Jail Standards, local judges, local JP’s, prosecutors, sheriff, arresting officers, probation, and parole and, to a small extent; defense attorneys and bondsmen.
Hopefully Judge Kennedy's successor will follow her advice and exercise caution in the face of budget-busting jail proposals. She's right: There are better ways, if officials will look for them.
See Judge Kennedy's "white paper" (doc) and related Grits coverage:
- How to solve Nacogdoches' jail overcrowding problem
- Grits' best practices to reduce county jail overcrowding
- Why are Texas jails overcrowded? Pretrial detention
- Bail blunders boost bulging Harris jail population
- Harris detains low-risk offenders for no reason
- Bail policies juice Tarrant jail overcrowding
- Tarrant County bail politics keeps jails full
- Tyler jail overcrowding solutions unveiled
- Pretrial diversion = Erath County's overincarceration solution
Tuesday, December 26, 2006
Like Doug, whose post includes links to past items on the subject from his Sentencing Law and Policy blog, I've been tracking this trend in Texas for some time, and count many conservative proponents of criminal justice reform around the state as friends and allies. For a lot of folks, though, for whatever reason, a trend doesn't become real until they see it published in the New York Times. So perhaps now's the time to revive some of Grits' recent coverage of this topic as an addendum to the Times' reporting, and Doug's.
To that end, see these prior Grits post on the topic of Texas conservatives backing "compassionate" instead of merely "tuff" criminal justice reforms:
- A new right or just the right moment?
- The end of ideology on the war on drugs or the beginning of consensus?
- Cats and dogs lying down together
- Left and right join to bash Byrne grants in D.C.
- The Lord despiseth not his prisoners
- GOP Judge: Cut drug sentences to let courts focus on violent crime
- NPR: Left and right converge to support stronger Texas probation
- Corrections Committee Chairman suggests solutions to overincarceration crisis
- Conservative think tank looks beyond prison walls
- Conservative think tank gives solutions to jail overcrowding
- What is restorative justice? The TPPF report
- TPPF working for criminal justice reform
When you step back to view this trend from an ideological perspective, though, what's also happening is that many evangelical Christians have become more willing to set aside the classic "culture war" issues to work on issues that affect the poor, foreigners, and the infirm. Meanwhile, losing elections by wide margins has a way of humbling liberal activists, and has made many more willing to work with conservative interests on narrow agendas where they can agree. As it turns out, compassion toward prisoners, like compassion for the sick and for immigrants, is an area where orthodox religious doctrine and modern liberalism can come together on many things.
To me, Texas and American politics are in a dynamic period of change where many of the old ideological labels need to be re-evaluated and perhaps tossed out altogether. This is a rare time when it's possible to debate fundamental goals and values, to potentially move beyond grandstanding and partisan bickering on crime and punishment to focus on solutions. Only time will tell if our state and nation will take that window of opportunity as seriously as it deserves, but IMO it lays before us, waiting, who knows how patiently?
Harris County officials who want voters to spring for a new jail are like the child who has let several goldfish starve to death then begs his parents for a dog. They can't take care of (or staff) the jails they've got ... why should voters give them two new ones?
The Chronicle's arguments rely on a fallacy: That building new facilities the county can't afford will somehow improve older facilities the county isn't properly managing now. It won't, it will just exacerbate understaffing and underfunding that plague Houston's current jails. The editorial argues:
anyone who has toured the city and county jails or had to assist a friend or relative in getting released knows firsthand how bad the conditions are and how pressing the need for new facilities.But no one plans to mothball county facilities that currently suffer bad conditions, so how will building two jails more change that?
Also, the Chronicle editorial ignores the biggest practical conundrum facing would-be jail builders: Who will staff them? It's not an academic question. Harris County can't afford guards for the facilities they've got now, and expanding capacity by thousands of beds would require hiring hundreds of new guards at a time when Houston PD, the state prison system, and the military are recruiting from the same small pool.
Some of the improvements touted by the Chronicle would insulate the county from becoming the target of federal action over poor jail healthcare:
Of greatest priority is the planned central processing facility downtown, with 2,500 beds to replace both the city jail and the deteriorating sheriff's booking facility. It would expand by 93,000 square feet existing health care space and centralize it on one floor.That all sounds reasonable, but two things come to mind. First, the reason Harris County might fear federal lawsuits or other regulatory intervention is precisely that they've underfunded and understaffed their current facilities. Wouldn't taxpayers' money be better spent hiring more doctors and nurses, for example, instead of building massive new facilities when they can't staff the old ones?
The aim is to house all patients with ongoing health problems near treatment sources. It would add more single cells to provide a secure environment for substance abusers to detox and isolate prisoners with contagious respiratory illness.
"We can identify probably a third of our jail population that have some kind of mental health issues," Sheriff Tommy Thomas said. "We need this to expand existing services."
In addition, the central booking facility would allow officers a one-stop destination to hand over prisoners, drop off evidence and then get back to their priority task of policing the city. Since Houston's force is seriously undermanned, the saving in time and effort will be doubly valuable.
The city would contribute $32 million to build the facility and pay the county annually for the cost of jailing those arrested by HPD for misdemeanor offenses.
Second, while improvements to health facilities are being touted, and are certainly needed, they're being wrapped into a larger package that includes expanding the size of Harris County jails by up to 50% - adding a ridiculous amount of capacity to what's already the state's largest jail, enabling the criminal justice system to endlessly pursue failed policies rather than forcing them to manage their business better.
Like the kid with the dead goldfish, the Chronicle's editorial writers say that county officials will do better next time if they're only given a chance:
Rather than continuing to be subject to nonstop litigation over penal conditions, the county and city now have the opportunity to build and operate jails that meet or surpass federal and state capacity, staffing and medical standards.Well, you know what? They already had a chance to do those things.
If you can't take care of a goldfish, why in heaven's name should taxpayers buy you a dog?
I've discussed numerous ways to reduce Houston's jail population to more manageable levels without harming public safety. See prior Grits coverage of Harris County jail overcrowding.
I want to know my score! This is a must read for travelers, fiscal hawks, and critics of totalitarianism alike.
If you've traveled abroad recently, you've been investigated. You've been assigned a score indicating what kind of terrorist threat you pose. That score is used by the government to determine the treatment you receive when you return to the U.S. and for other purposes as well.
Curious about your score? You can't see it. Interested in what information was used? You can't know that. Want to clear your name if you've been wrongly categorized? You can't challenge it. Want to know what kind of rules the computer is using to judge you? That's secret, too. So is when and how the score will be used. ...
As of July 31, 2006, there were 25,022 offenders incarcerated in TDCJ whose primary offense was a sex offense - if you include the number of offenders with a past or current conviction of a sex offense, the number jumps to 32,481 (p. 16). That's a lot more than I would have anticipated - basically one in six Texas inmates. Inevitably, every year many of these are released back into society:
FY 2003: 2,373
FY 2004: 2,487
FY 2005 2,744
Many are lower level offenders, not rapists or child molesters, but still the raw numbers inevitably raise the question: Have these offenders been rehabilitated?
The committee report evaluates research on what sex offender treatment works, and suggests the likely-to-be controversial reform of de-funding in-prison sex offender treatment to pay for boosted "community based" or outpatient treatment. "At this time, it appears prudent to reduce or eliminate sex offender treatment in the prison setting and bolster resources for sex offender treatment in the community."
The report continued, "Instead of providing sex offender treatment to prison inmates, a more effective approach would be to conduct assessments on sex offender inmates for the purpose of identifying risk and need." The committee recommended "decreases in supervision for ... low-risk offenders," with an "increase in current [supervision] standards" for high risk offenders. They also hope to create post-release plans for each inmate sex offender to facilitate supervision, treatment and reintegration.
I was also struck by two things that weren't in the report on this charge. First, there's no mention of "Jessica's law" nor the death penalty for sex offenders. The report is thankfully free of the hype-filled rhetoric that filled the air during the campaign season, and focuses admirably on research-driven approaches instead of emotional ones. Chairman Madden and his committee deserve a lot of credit for that - responsible approaches to governance on hot button issues shouldn't be a rarity, but they are, and I'm always surprised and pleased to discover them.
OTOH, I was disappointed the committee didn't take up the question of de-registration, straight up removing people from the sex offender rolls. For starters, the registry has expanded to cover too many low-level crimes so that so-called "sex offender" supervision resources are overstretched, reducing safety instead of improving it. It would also improve safety to offer offenders a means to earn their way off the public sex offender rolls through good behavior. I was glad to see the committee state a commitment to reintegration, but a lifetime sex offender registry thwarts that goal. It's the equivalent of a "scarlet letter" that prevents tens of thousands of people from finding housing, employment, and other necessities of life. It's not right, and it's making us less safe - what better reasons to change the law?
Still, considering this report was being put together in the midst of this year's electoral frenzy, when candidates up and down the ballot ran on ramping up sex offender punishments, the committee's report was surprisingly sensible - tougher in ways that are smarter instead of throwing more money at expensive, failing approaches.
The committee said TCJC's study "will be very valuable in developing future legislation regarding the practices and policies of TDCJ. The full report provides fascinating information that is valuable to citizens, lawmakers, and prison administrators." That's high praise from a GOP-led committee for a group dedicated to criminal justice reform! (See the full report.)
Based on the survey, TCJC recommended expanding evidence-based treatment programs that reduce crime, and aiding families of the incarcerated, especially children. Congrats to my good friends at TCJC (where, in the interest of disclosure, I office since I left ACLU) - I'm really proud that your hard work on that survey paid off with the inclusion of its results in the House Corrections Committee report.
This morning I want to continue our tour through the work by standing Texas House committees in their interim reports related to criminal justice topics. Having examined the House Criminal Jurisprudence Committee's report, as well as several aspects of the report from the House Law Enforcement Committee, now I'm going to tackle the much more extensive House Corrections Committee interim report (pdf) in several chunks over the next few days.
For starters, p. 10 of the 150-page report offers a summary of the total proposed new prison beds the Texas Department of Criminal Justice is requesting during the next biennial budget cycle:
Total new prison beds: 4,080Private prisons appear to be the sole providers suggested by the committee for new "treatment beds." The report stated, "The state of Texas currently has contracts with private operators to maintain 15,505 secure prison beds, approximately 10% of the state's prison capacity. The facilities are run by Corrections Corporation of America, Geo Groups, and Management Training Corporation. ... When capacity needs arise the Texas Board of Criminal Justice contracts with county jails and private facilities at a cost of $40 and $30 per day respectively."
Additional new treatment beds:
- 1 unit at 2,250 beds plus 500 Administrative Segregation beds
- 1 unit at 1,330 beds
- 1,000 new private beds (including 500 DWI beds) - vendor built
- 250 new Substance Abuse Felony Punishment Facility (SAFPF) beds - vendor built
- 200 new In-Prison Therapeutic Community (IPTC) beds - these beds are available in existing units so only treatment money is needed.
I was disappointed to see the Committee report suggest Texas should perhaps rely exclusively on private prisons for short-term capacity expansion. In the Recommendations to the first charge, the report queries, "if the state must contract with private companies and county jails to alleviate overcrowding, why limit the number of private beds the state can contract with when the private beds cost less money and provide more treatment?"
Good question. The man reason private facilities are cheaper is because they cherrypick low-level offenders. (Forget for a moment that another reason some are cheaper is that they're not spending as much on security.) And they "provide more treatment" primarily because the Texas Legislature slashed in-prison treatment funding over the last several years. That's not an invevitability, just the current state of affairs in a mismanaged prison system.
More to the point, the Committee's proposal ignores the long-term economic implications of such a decision. Indeed, private prisons undoubtedly are cheaper in the short run, in the same sense that it's cheaper in the short run to rent a house than to buy one. The main difference is that twenty years down the line you're still paying rent, when if you had purchased the home, or in this case the prison, the marginal annual cost declines dramatically in the long run.
That's why, while I don't mind the state renting beds to manage short-term capacity crises, I don't think it's a good idea at all to lease private prison space as a long-term strategy. It's an economic disservice to the taxpayers who will continue to pay for short-sighted decisions long after the politicians making them have left the public eye.
Monday, December 25, 2006
I do all the cooking in the house, so this small line drawing, which you'll notice Hurt did this year, will hang in the kitchen. It's titled "Lurking Fork."
Thanks to the folks at Blawg Review for the nice compliment! Be sure to check out the other deserving legal blogs receiving accolades - some familiar names among them, but several I'd not seen before also look quite interesting.
Saturday, December 23, 2006
- No party has lock on Dallas jail healthcare woes, Sherry Jacobson, Dallas News
- Prison detrimental to nonviolent offenders and taxpayers, Ronald Fraser, Amarillo Globe-News
- Citizens denounce Hutto jail before county commissioners, Greg Moses, Texas Civil Rights Review
- Pot smoking got him life, Rick Casey, Houston Chronicle
- Driving drunk arrest costs $9-24K on first offense, Mark Agee, Fort Worth Star Telegram
- Genetically engineered, herbicide resistant marijuana found in Michoacan, UK Guardian (Remember Roundup-resistant coca?)
- The Ghost of Christmas Past returns to the House of Death, Bill Conroy, Narco News
- How the war on terror impacts the politics of crime, Sentencing Law and Policy
- UTMB and TDCJ Stiles Unit named in federal lawsuit, The Back Gate
- A stunning Fifth Circuit decision, Capital Defense Weekly
There are also several good blog posts up at the Wretched of the Earth, including his recent Texas Court of Criminal Appeals case updates.
Merry Christmas, everybody.
Friday, December 22, 2006
Until then, I'd like to make a request to readers: If you happen to know a child with an incarcerated parent this Christmas, please consider stopping by over the weekend to give them a hug and maybe dropping off a last-minute gift.
Family holidays are a troubling time for a kid whose Mom or Dad is in prison. Let them know they're not alone. Even small gestures can make a difference. After all, we're supposed to be celebrating Christ's birthday ... you remember, the guy who taught that "Even as ye have done unto the least of these, my brethren, you have done it unto me." If there were ever a category of youngsters one could regard as the "least of these," it would be the thousands of Texas kids who'll wake up Christmas morning with a parent incarcerated.
Have a great holiday, everybody. See you next week.
UPDATE: DVD gets worldwide attention. London Times reporter: "Is this a bloody hoax?" More quotes from ex-co-workers in the Odessa American. See Grits past coverage of Texas drug task forces.
Law enforcement officers around East Texas were startled to find one of their former brothers of the badge is scheduled to begin selling a video describing how to avoid getting caught when stopped by police looking for illegal substances.
The Tyler Morning Telegraph has learned that Barry Cooper, a former Gladewater and Big Sandy police officer, is scheduled to begin selling his DVD "Never Get Busted Again," Tuesday with the launch of a Web site and a full page advertisement in a national publication targeted toward those interested in illicit drugs.
Smith County Deputy Constable Mark Waters, a drug interdiction officer, said he was appalled at the idea of a former officer selling such a video.
"It's an embarrassment to all law enforcement officers across the United States, who put their life on the line every day," he said. "This is a slap in the face to all that we do to uphold the laws and keep the public safe."
Cooper, once "the best" drug officer in West Texas, according to his former superiors, told the newspaper during an interview Wednesday night that he believes marijuana should be legalized, and that the imprisonment of those caught with the drug destroys their families and fills up jails and prisons across the country with non-violent offenders.
He added that methamphetamines, cocaine and crack should be eradicated from the earth because they are dangerous drugs. But he says marijuana is not.
"I know I won't be accepted by my peers here in East Texas, but in other areas of the country I will be celebrated," he said in his office in Tyler. "When I was raiding houses and destroying families, my conscience was telling me it was wrong, but my need for power, fame and peer acceptance overshadowed my good conscience."
A three-minute promotion for the video shows Cooper in West Texas when he was assigned to the Permian Basin Drug Task Force being interviewed by media on large busts he made.
The promotion has Cooper saying he is going to show people through actual footage of his busts how to not get caught, how to "conceal their stash (do coffee grounds really work?)," "avoid narcotics profiling" and how to "fool canines every time."
Cooper, who has no disciplinary actions on his law enforcement record, left law enforcement to pursue the ministry and a successful business. He said he also felt pressure from other law enforcement agencies that were jealous of busts he made, and the political pressures associated with arresting a mayor's son and a city council member on drug charges.
Cooper argues that people are being sentenced to long prison terms for drugs when murderers, child molesters and rapists are getting shorter sentences.
"The trillions of dollars we're spending in the war on drugs should be used to protect our children," he said. "Our children are being molested every day and everyone knows we have lost the war on drugs."
Cooper believes marijuana should be legalized and regulated by the government which he says will cause the crime rate to drop. He points to Prohibition, America's failed experiment in outlawing alcoholic beverages. Prohibition merely empowered the criminals, he says, and that's just what's happening now with prohibited drugs.
"We have cops and other people getting killed, and I believe we could end all of that," he said. ...
Cooper's former commander with the Permian Basin Drug Task Force said he was "completely shocked."
Tom Finley, now a private investigator in Midland, said he was Cooper's boss in the 1990s and said Cooper was the best drug interdiction officer he had ever known.
"He was even better than he says he was," he said. "He had a knack for finding drugs and made more arrests, more seizures than all of the other agents combined. He was probably the best narcotics officer in the state and maybe the country during his time with the task force."
However, Finley said he was distraught to learn the video plans of his former "top cop."
"I'm definitely not in agreement with what he is doing here and I am all for getting the drug offenders off the streets and putting them behind bars," he said.
Cooper claims to have made more than 800 drug arrests and seized more than 50 vehicles and more than $500,000 in cash and assets. ...
Cooper said he does not agree with the current laws and hopes they change through legislation and sees this as a way to truly combat the nation's drug problems.
"My main motivation in all of this is to teach Americans their civil liberties, and what drives me in this is injustice and unfairness in our system," he said. "I'm just teaching them how to not ruin their lives by being put in a cage. I'm not creating the problem; it is already there."
Cooper said he knows there will be backlash from some, while others will agree with him.
"I challenge anyone who doesn't agree with me to a public debate to hear what I have to say and I bet some people will change their minds," he said. "But I'm sure some will think of me as the devil."
NUTHER UPDATE: D'Alliance says the DEA is investigating to see if Cooper's product breaks any laws.
See the trailer here. Very interesting.
Cooper's website is now live. Check it out for yourself.
"A Good Country Ass Whoopin"
First, Maass reports on an Orange County DA investigator who received an unwelcome birthday visit from a Kerrville car burglar, and who is probably (or should be) in a lot of trouble at his job. Maass writes:
You gotta love Texas justice, such as this kind request posted on a Texas prosecutors’ messageboard on Saturday: “Please put a good country ass whoopin on whoever is wearing [my badge], prior to placing them in jail,” wrote Kevin Breshears, an investigator with the Orange County District Attorney’s Office. In addition to Breshears’s badge (#610), the “low life” who broke into his car while Breshears was having dinner with his son in Kerrville also nabbed his .45 semi-automatic Sig Sauer P220 handgun, laptop, and $600 digital camera, plus a “large and expensive array of lenses.” And on Breshears’s birthday, no less! Apparently, the Kerrville Police Department wasn’t sympathetic: “I can’t believe how I was treated there by the detective and the brass!” Breshears wrote. You’d think they gave him a good country ass-whoopin for introducing a firearm into the criminal stream.From this screed, Mr. Breshears sounds like he's perhaps a few bricks shy of a load, as my father would say. His elevator doesn't appear to go all the way to the top. Who leaves an expensive gun, the office laptop (with perhaps informants, undercover officer names and God knows what else on it), thousands of dollars worth of camera equipment, and his BADGE in the car outside a restaurant? (Why not leave the keys in the ignition while you're at it?) And he's mad at the Kerrville cops! This guy deserved to be fired even before he requested that his fellow officers violate a defendant's civil rights on a public internet message board.
UPDATE: Breshears has edited his comments to say his call for retaliation was a jest: "Just in case someone wonders why I edited a comment from my post, Apparently someone read my post and did not understand that we are all professionals and would know the comment was off handed humor." Real funny, and professional, too. Ha. Ha.
Tent jails a politicized cop out
Maas also follows up on Bexar County Commissioner Tommy Adkisson's continued quest to use "tent jails" for prisoners in San Antonio, a topic Grits has discussed previously. I'd hoped this was just an election season gimmick that would die down after November, but apparently the San Antonio Democrat still wants to pursue this boondoggle. Mr. Adkisson now has a new meme he's spreading - some jail inmates WANT to be incarcerated!
Adkisson’s catchphrase (repeated half a dozen times during our interview): “Six to 10 percent of our jail population, which is about 400 inmates, go [to jail] for three square meals, air conditioning, color-cable television, and medical attention in a secured setting.”Uh huh. If you're homeless and mentally ill, maybe, but probably not even then. Sorry Mr. Adkisson, that dog won't hunt. I challenge Commissioner Adkisson to show any data that backs up that claim, from any source - IMO it's pure hogwash with made up statistics, an uneducated guess with a percentage attached to it to make it sound official.
A lot more inmates than that are low-level offenders who are in jail awaiting trial, many with no priors. Indeed, as I've previously mentioned, Bexar County incarcerates half again as many misdemeanor inmates awaiting trial as does Harris County, which is more than twice as large! Even if Adkisson could substantiate his numbers - and I REALLY want to see a source on that 6-10% figure - there are much bigger sources of overincarceration in Bexar County that officials are ignoring.
From an economic standpoint, it's easy to understand politicians' desire for a tent jail: Commisioners and judges get to grandstand as "tuff" in the media, and they wouldn't have to change problematic criminal justice practices or take responsibility for an expensive, failed system in a jail bond election. The ideological arguments Adkisson suggests for a tent jail, though, are both non-substantive and mutually exclusive. Reports Maass:
Adkisson’s selling his idea with contradictory pitches. On one hand, he denounces our current jails as luxury resorts for criminals for whom incarceration is calculated into the cost of doing business. ... On the other hand, Adkisson claims inmates actually love Arpaio’s Tent City, going so far as to suggest that female inmates think to themselves that the sheriff is “the father we missed having when we were raised.”So inmates both will hate tents so much they won't want to go there, and love it so much they'll come to view the sheriff as a father figure! Yeah right. Both Grits and others have suggested numerous ways Bexar County could reduce its jail population without harming public safety. See especially recent suggestions from the Bexar County Jail Administrator. All of his suggestions should be implemented before a tent jail is even considered. The tent fad is nothing more than a politicized cop out - an admission of failed leadership and a vacuum of ideas.
The Bloggers vs. Vicki Truitt
Finally, Vince Leibowitz has an item on the recent dust up between bloggers and state Rep. Vicki Truitt over her internet libel bill. Give it a read. I let this one blow over without blogging about it, but that doesn't mean I don't have a few opinions.
On the one hand I liked Vince's coverage because it didn't focus, like the MSM did, on "oooh, bloggers used dirty words." Truitt's was a meaningless, do-nothing bill from the get-go, but it did indeed from its language appear to focus on bloggers, whatever the representative's ill-conceived intent. Vince took the issue on its face and reported it like an adult, which gives him a leg up on the Fort Worth Startlegram.
But the dirty words and personal insults are part of the story too, IMO just for different reasons than have been portrayed. I think the Star Telegram took the wrong lessons from L'Affaire de Truitt. In an editorial on the subject they wrote, "The mostly anonymous criticism from bloggers -- a mixture of bombast, crude humor and frenzied groupthink -- was largely as meaningless as most of the bill itself."
Certainly the bill was meaningless, but the bombast and crude humor was not. Commenters on In the Pink Texas were making a point, and a quite valid one: Politicians can't control the blogosphere. You can't control blog commenters. You can't eliminate satire. You can't stop someone who identifies themselves as Roaming Gnome or even "anonymous" from making fun of politicians, who are considered "public figures" under libel law and thus fair game for all but the worst calumnies. Of ITPT commenters, I thought the lovely and talented 'lurkette' put it best:
Two defenses to libel:
The Truth, and The Funny. Otherwise known as facts and parody.
If either of those are present, it’s not libel.
Bring. On. The. Funny.
Thursday, December 21, 2006
The question at hand - is it right to withhold evidence that could change the outcome of a case, even if it doesn't speak directly to the guilt or innocence of the defendant in the charges brought? (In this case, an unjustified traffic stop for a bad tail light led to an allegedly justified DWI arrest.)
IMO the prosecutor made the right decision to dismiss in this case, but it's still an interesting glimpse at the thought processes behind decisions whether to release exculpatory information - essentially haggling over the definition of what is "exculpatory" - especially in departments that don't have an openness policy.
An assistant county prosecutor from Richmond, TX offered this light-hearted definition of what is "exculpatory":
exculpatory - adj. 1) something courts determine you should have disclosed after you've already withheld it. 2) to be considering the possibilities of living life as the former wife of actor Robert Culp.
Wednesday, December 20, 2006
Texas prosecutors must disclose "Brady" material to the defense, i.e., any potentially "exculpatory" material, but until trial, prosecutors aren't required to reveal what evidence they're relying on to accuse the defendant. Some DAs, on their own initiative, have implemented "open file" policies and simply allow defense counsel to see all evidence that's not expressly privileged under law. That speeds up the process all around and avoids potential Brady violations.
Over at Unfair Park, Robert Wilonsky recalled that during the campaign, Watkins actually promised to open up prosecution files. Writing just after the election, Matt Pulle wrote in the Dallas Observer:
Of chief concern to local lawyers is whether Watkins will follow up on his promise to institute a true open-file policy, which allows defense attorneys to have access to parts of the prosecution's criminal case, including police reports and witness statements. Tarrant County, which isn't exactly known as a liberal's vision of Xanadu, has such a policy, which both sides say speeds up the prosecution of cases. It's also a key safeguard in preventing the conviction of innocent people by allowing the defense counsel to—here's a revelation—mount an adequate defense.
"There is a hope now that Craig is going to establish a true open-file policy and that we will be able to get copies of police reports and all the things we should get anyway without there being roadblocks," Grant says.
So it really wouldn't be out of the question that he really might enact this reform after he takes office in a couple of weeks. (I still wish the Lege would mandate it for ALL DAs.)
Not everybody thought this was necessary, though. A DallasBlog commenter disputed the suggestion, claiming:
The Dallas County DA's Office has an open file policy, and it’s been in place for years. And even if they didn’t have such a policy, prosecutors remain under the duty to comply with all requirements of Brady v. Maryland, as well as all statutory requirements pertaining to the disclosure of information to the defense. I thought I’d point that out before you two flaunt your ignorance any further.Well, the existence of Brady v. Maryland is a red herring, but I was taken aback to see the claim that Dallas already had such a policy. I'd hate to "flaunt my ignorance," after all. I felt a bit better about my characterization, though, when one of Grits' blogger friends, a former Dallas public defender who until very recently worked felony cases in Dallas, responded disputing this assertion:
The Dallas DA's Office does NOT have an open file policy. They give you what they want to give you and nothing more. Many of the prosecutors I worked with there showed me the entire file 100% of the time. Other prosecutors absolutely would not. There was no standard open file policy, and anyone who says there is is lying or misinformed.Even so, I wanted to make certain I hadn't misstated the Dallas DA's policy, so I emailed a friend in Dallas who practices every day in the criminal courthouse. He read my post and the DallasBlog string and here's how he responded:
Txpublicdefender is right, there is no open file policy, at least not the way Tarrant County's has operated. As I understand it, in felony court you can usually see the DA's file, but never make copies. As there is no official policy (or it is roundly ignored by the ADA's), how much you see is controlled by which ADA you are dealing with and your personal relationship with them.At that point I felt pretty good about my assertion that Craig Watkins should implement an open file policy like the one in Tarrant, then lo and behold Mr. Wilonsky comes up with another bit of critical detail in yet another post on the subject (thanks Robert, for following up!), this time posting an actual scanned copy of the DA's so-called open file policy. Seeing the memo completely cleared up my confusion; that's not an open file policy at all - literally in name only!
A former Tarrant County prosecutor explained to me that they kept the day's files in a box in the courtroom and gave the file readily to the defense attorney. They also kept the privileged material (NCIC/TCIC, prosecutor notes, witness statements, etc) in a brown envelope marked "privileged." You could see the entire file (minus the privileged material) and make copies. It's a much better system than here in Dallas. I asked several attorneys this morning and the consensus seems to be that, regardless of whether there is or isn't a policy, the how much info you see depends on which ADA you have. Sometimes the first time you get a copy of the offense report is the morning of trial (yeah, that's fair!).
In the misdemeanor courts in Dallas, it's even more hit or miss. I once had a copy of their "open file policy" but unfortunately I can't find it anymore. Practically speaking, it also depends on which ADA you are dealing with and how paranoid they are about their file. Some are good and let you see and copy nearly everything; others will give you the top sheet of the arrest report and the (usually one paragraph) narrative describing the offense and arrest. I've had some that made me take notes in their presence rather than let me make copies (this seems to be the bottom line in felony court, too). I finally brought a word processor up to work and typed the file word-for-word - until they wouldn't let me bring the word processor into their workroom any longer...
Bottom line, they desperately need a official policy that is evenly enforced.
First, it identifies several pieces of information that defense counsel may "read," but unless the ADA's in a good mood they may not make copies. Documents like arrest reports, witness statements, lab results, and other key data aren't given to the defendant under this policy until the day before trial! That's especially ridiculous since barely any Texas cases go to trial: statewide >99% end in plea bargains. That means in the vast majority of instances Dallas prosecutors may never be required to reveal their evidence.
So in my estimation, the defense lawyers are right: Prosecution files are not "open" to defense counsel in any meaninful sense. Craig Watkins definitely should look westward to Tarrant County for a more meaningful model for transparency.
What's more, it's cool for bloggers and commenters to vet the issue pretty darn thoroughly in basically a 24-hour span. I like it. :)
UPDATE: More from the Dallas News, which informs us that Watkins' new first assistant,
Ms. Moore said she anticipates implementing a broader open-file policy similar to one already in place in Tarrant County that allows defense attorneys to view the contents of case files.NUTHER UPDATE: Thanks to a commenter for pointing out that in Abilene a lawsuit has been filed challenging the Taylor County DA's closed file policy by the Southeastern Christian Association - they think a juvenile defendant should have had access to the DA's accusatory information before a court hearing that determined he would be tried as an adult. (Here's the original complaint.)
"It helps prevent convicting innocent people when you say, 'Here's my file. You're welcome to everything in it. I'll convict you based on the truth,' " she said.
ONE MORE: Matt Pulle at Unfair Park tells us definitively: DA Does Have An Open File Policy ... Not