Thursday, May 31, 2007

Early Withdrawal: AG Greg Abbott rethinks motion to out anonymous blog commenters

Good news: Texas Attorney General Greg Abbott is standing down, for now, on the demand that Google turn over information that could help Bexar County probation director Bill Fitzgerald identify anonymous dissidents on his staff who want to start a labor union. Here's a copy of the withdrawal motion (pdf) filed late this afternoon.

After I wrote earlier this week about the AG's motion to reveal identities of commenters on a probation officers' employee blog, the story was picked up by Elizabeth Allen at the SA Express News' Hearsay blog. I then forwarded this Grits post to Abbott and a couple of members of his staff, and was pleased to receive an email reply and a phone call in response from a high-level staffer, though one who ironically himself would rather remain anonymous.

After reading about the situation on Grits, my source says folks higher up the food chain in the AG's office decided that this "wasn't what we wanted to do." "We're not trying to mess with you guys," my source declared on background. In fact, he said the Texas AG had never before filed a motion seeking IP addresses of blog commenters, even in criminal sex predator cases, and that the AG certainly didn't want to set this precedent in a civil matter.

That said, the AG's withdrawal motion says the defendant "reserves the right to reissue the subpoena" later, so those private reservations expressed in anonymity won't necessarily restrain future legal action. But the act of withdrawing the motion in the first place counts for something.

I've never heard of this before and am still curious as to whether and when Google releases such information or whether they fight it in court. Are anonymous comments really anonymous? Maybe not ultimately - anonymous blogging and commenting could be one of those rights we lose rather than protect in the courts if we don't pay close attention and defend it.

HB 2391 could save Bexar County taxpayers $10K per day

Every politician says they want to cut spending, but how many fail to do so when they get a reasonable opportunity? Bexar County officials say HB 2391 would save the local jail $10,000 per day and generate proportional savings for other counties, if the Governor will only sign the bill.

An aide to Bexar County Judge Nelson Wolff forwards this letter sent to Governor Rick Perry (pdf) asking him to support HB 2391 by Madden/Seliger (discussed on Grits here and here). Judge Wolff, who's pretty much a San Antonio political icon, describes the impact HB 2391 could have in his county if the Governor allows it to become law:
in the seven day period between May 19th and May 25th law enforcement agencies here in Bexar County arrested 958 people on misdemeanor offenses. If the bill had been in effect and the local law enforcement organizations utilized it to issue summons on only those charged with misdemeanor traffic ticket and driving with license suspended offenses, Bexar County jail's population would have been reduced by 194 inmates and saved the County nearly $10,000 per day in operational expenses.

Just as the State continues to struggle to meet increased demand for prison beds, Texas counties continue to struggle to meet demand for jail beds. HB 2391 provides a needed tool to address this issue and I respectfully request for you to allow this important piece of legislation to become law.
Wolff's aide assured me the estimates of costs savings for Bexar County are "very conservative," but admitted that "The open question will be if we can convince SAPD to change their arrest policies," he said. Since the option, though, is a jail needlessly filled with low-level non-violent and traffic offenders, I certainly join Judge Wolff in hoping Governor Perry gives law enforcement this option.

R.I.P. Daryl Janes

I hope when I die somebody says of me, as Harvey Kronberg said of Daryl Janes: "He was a writer with printer's ink in his blood; words were his business."

I've still got a big stack of old copies of The Daryl Herald - the publication he and Daryl Slusher operated in the '80s - in a box somewhere that I never could bring myself to throw out. I hadn't seen him in a few years, but Harvey nailed it. Janes was a writer's writer, and if he were a few years younger he'd have made a helluva blogger. I was sorry to hear of his passing.

TYC's Marlin unit will become adult prison

The transfer of the Marlin unit from the Texas Youth Commission (TYC) to the Texas Department of Criminal Justice (TDCJ) is nearly "a done deal," a spokesman for Sen. John Whitmire told KWTX TV this week. Marlin is a small town southeast of Waco where TYC currently does "orientation and assessment" for every kid entering the system, so now that will have to be done elsewhere. According to KWTX:
the plan that’s in the works calls for processing new female inmates through the TYC facility in Brownwood and new male inmates through the McLennan County State Juvenile Correctional Facility in Mart.
On average, youth spend about 52 days at the Marlin unit before being assigned elsewhere in the system. This is the first, concrete announcemement of long-rumored TYC facility closures, and before commenters ask I don't have any new information about the fate of the John Shero or Victory Field units. The facility in Corsicana where TYC handles youth with severe mental illness was criticized as being in an unsuitable setting, so its role could change, too, though I've not heard anyone advocate its closure.

It's obvious, though, that between setting up O&A operations at new facilities, gender segregating youth, and addressing the situation in Corsicana, TYC's reorganization will require reshuffling different units' functions in ways that will potentially create staff shortages for specialized positions in the near term.

The move will expand TDCJ's capacity by nearly a thousand beds, but it's not as though TYC employees can all just get jobs there. Before this session, JCOs at TYC got only a quarter of the training time TDCJ COs receive, so most employees can't seamlessly transfer to work at the adult prison. Plus, TDCJ has less need for caseworkers and teachers than straight up prison guards.

During session there was talk that Marlin would become a DWI treatmtent facility, but no word yet whether that's what will happen. Any TYC or TDCJ folks who know more, please inform us in the comments.

UPDATE: More news from Marlin! The Back Gate reports that the shuttered VA hospital there will re-open as a prison hospital. KCEN-TV reports the hospital will provide women prisoners mental healthcare.

Wednesday, May 30, 2007

Bexar County Judge Elated at Opportunity to Pioneer Texas Needle Exchange

Finally, with the passage of SB 10 with an amendment by San Antonio state Rep. Ruth Jones McLendon, Texas will no longer be the only state in the nation without a single, legal needle exchange. We'll now have one.

After SB 308 by Deuell allowing local governments to decide the question passed the Texas Senate, that bill died in committee but was resurrected as a single-county pilot project in Bexar County (San Antonio). I just received this press release from Rep. McLendon which quotes Bexar County Judge Nelson Wolff enthusiastically embracing the idea:
(San Antonio) -- State Representative Ruth Jones McClendon (House District 120, D-San Antonio) announced today that a legislative proposal has passed which would allow a pilot program so that public health care providers in Bexar county can evaluate the effects of a safe needle-exchange program as one means of combating the spread of hepatitis, HIV, and other infectious diseases. Her proposal was presented as an amendment to Senate Bill 10, a lengthy bill authored by Senator Jane Nelson (State Senate District 12, R-Lewisville), which addressees various aspects of examining state and local Medicaid and uncompensated health care costs in Texas. After signature by the Governor, it will take effect on September 1.

This Session, Senator (and physician) Robert Deuell (Senate District 2, Greenville) and Representative McClendon and filed companion bills (S.B.308 and H.B.856) to help prevent the spread of infectious diseases such as hepatitis and HIV, and reduce the drain on local health authorities for the enormous costs of treatment. Nelson Wolff, Judge of the Bexar County Commissioners Court, said enthusiastically, "Last year Bexar County spent more than $4 million on HIV/AIDS services. A needle exchange program will not only save lives but also taxpayers' dollars. We appreciate Rep. McClendon's courageous leadership, which could mean the difference between life and death for hundreds of Bexar County citizens." Studies show that the life expectancy of a person with HIV has risen to 24.2 years, and lifetime treatment costs are at least $385,000.

Representative McClendon said, "The public health and safety of Texas requires that we offer public health programs that prevent the spread of infectious diseases. Fiscal responsibility also requires that preventive programs be made available, and this is just one way that we can begin curbing the spread of hepatitis and HIV in geometric proportions." This development would permit Bexar County health authorities and their contracting agencies to establish and administer a safe-distribution and exchange programs for syringes and needles. Such programs have proved highly successful across the nation, including Hawaii, New York, Connecticut, and have helped cut the spread of HIV infections dramatically.

Texas has long awaited authorization for this type of disease-prevention program: Texas Monthly reported in its April, 2007 issue that Texas was the only state that did not allow this type of measure to help prevent the spread of infectious diseases. Opponents object to needle exchange programs (sometimes called NEP's or SEP's), on the basis that they allow users of intravenous drugs to continue an addictive habit; however, those who favor the programs emphasize that when a person can exchange dirty needles for clean ones, this helps keep uninfected persons stay that way. Also, NEP's offer the program sponsors with recurring opportunities to make rehabilitation and recovery available to the needle user; this has also has proved highly successful. As Representative McClendon emphasized, "This is not about increasing the number of intravenous drug users or helping them perpetuate an unfortunate addiction; it is about helping people stay free from infection. The Texas Medical Association, the Texas Hospital Association, the Texas Pharmacy Association, and many local officials and health care providers who treat infectious diseases supported this legislative concept."
This legislation has failed in Texas every year since the early '90s, so this was an enormous "get"- especially since McLendon convinced Rep. Dianne Delisi (R-Temple), who'd stalled the bill in the Public Health commitee, to agree to the pilot program. If needle exchange can show success in preventing disease and reducing costs in San Antonio, there's a good chance Texas will expand legal needle exchange programs to other cities in the future.

Among legislators, Rep. McLendon, Rep. Coleman, Rep. Delisi, Sen. Deuell, Sen. Nelson, Sen. Janek, Sen. West, and many others stepped up to make this happen. Others whose involvement was critical were Deuell's staffer Scot Kibbe, McLendon's staffer Janis Reinken, activist Tracey Hays (Austin Harm Reduction Coalition and ACLUTX), and Bill Martin, Texas Monthly's religion writer who wrote an editorial in that publication this spring supporting needle exchange. I should also mention that Glen Maxey carried this legislation doggedly for years, pushing it when nobody thought it had a prayer. It wouldn't this year without his pioneering work in years past.

I was proud of the Senate and the House when they both approved needle exchange for the first time ever on record votes (23-8 in the Senate, and 71-60 in the House). The quite-conservative Dr. Deuell has done such a good job re-framing the issue and defusing opposition, I wouldn't expect this to turn into an election issue for needle exchange supporters, or if it happens I think such ill-informed arguments can be easily beaten back. If that's accurate, and Bexar's outcomes follow patterns in the other 49 states at preventing disease and getting addicts into treatment, one assumes that would make it easier for advocates to come back to the 81st Texas Legislature in 18 months to take another bite at the apple.

See prior Grits coverage:

Texas Lege approved new tools to reduce jail overincarceration, if police can change thinking

Only two piece of legislation passed the 80th Texas Legislature that assist at all with the statewide county jail overincarceration crisis. Especially in the bigger cities, county jails need help now. The AP reported today ("Bexar County struggles with jail overcrowding," May 30) that the Bexar County Jail in San Antonio currently exceeds its capacity by more than 300 beds:

"Our population has bounced way up in the last 60 days, and I don't know why," County Judge Nelson Wolff said. "It's an efficiency problem, and then not treating (mentally ill or addicted) people and instead throwing them in jail."

Bexar County has grown by more than 370,000 people since the jail was built in 1988, according to U.S. Census Bureau.

Dennis McKnight, the county's jail administrator, said the overcrowding problem was "beyond critical."

The county obtained an extra 64 beds from the American Red Cross on Friday. Some inmates were already housed in nearby counties, which face their own capacity issues, McKnight said.

"At this point, everyone has a bed or will be assigned a bed," McKnight said Tuesday.

Court administrators said they were reviewing cases to determine if bonds could be reduced. The district attorney's office was also working to push cases forward.

"There's no magic bullet," said Jim Kopp, intake chief at the district attorney's office. "It's just constant work."

McKnight said the county needs to address overcrowding by either considering a new facility or a "complete change in thinking as to who gets arrested and why."

"Because frankly, I've pulled all the rabbits out of my hat," McKnight said.

The brightest spot for the Bexar County Jail lies in a piece of legislation passed that, as McKnight suggested, could help spawn a "complete change in thinking as to who gets arrested and why," but it would require cooperation with local law enforcement to accomplish. Rep. Jerry Madden's HB 2391 (discussed by Grits here) would give police officers more discretion how to handle low-level non-violent midsdemeanor offenders.

Deputy McKnight suggested this reform last fall in a letter to Grits, and its legislative embodiment, HB 2391, was the most important bill passed by the 80th Texas Legislature to assist counties facing jail overcrowding crises, which is quite a few of them. The jail administrator in Midland County also backed the idea, which given that that's the Speaker's home district probably didn't harm the bill's passage in the Texas House.

The Governor could still veto the bill, but then the 80th Legislature would have done nothing to relieve needless local jail overcrowding and force budget-busting jail construction or expensive contracts leasing beds. A bigger concern is whether local law enforcement will coordinate with Sheriffs running county jails and actually use these new tools

The other bill passed this session aimed at reducing jail overcrowding was a much more minor bill, HB 541 (discussed by Grits here) which allows judges to grant bail "blue warrant" parolees detained in the jail for technical violations awaiting a parole revocation hearing. Often parole officers did this, Sheriffs complained, with no intention of revoking the offender - "jail therapy" was the term used for parole officer's practice letting a parolee sit in jail to think through their options.

I don't think this will help as much as proponents hope, mainly because judges are reluctant now to grant personal bonds and parolees typically will not have money to make bail. However, what might help are substantial new state investments in Intermediate Sanctions Facilities in the budget designed precisely to provide an intermediate level of confinement, to give parole officers punishment options somewhere between a slap on the wrist and sending technical violators back to prison to complete their full sentence.

So long as Gov. Perry doesn't veto these bills, the Lege has given judges and law enforcement new tools that empower them (if they'll use them) as McKnight put it, to change their "thinking as to who gets arrested and why." (For those interested, see more of McKnight's suggestions.)

No doubt the Lege could have done more, but these two bill are a start. Certainly counties that don't use these new tools should be vigorously questioned when they come to the public asking for more debt for jail construction.

Tuesday, May 29, 2007

Outing anonymous blog commenters in court a bullying tactic

In the SA Express News ' Hearsay blog on the Bexar court system, reporter Elizabeth Allen picks up on Grits' coverage of efforts by the Texas Attorney General on behalf of Bexar County probation director Bill Fitzgerald to out anonymous blog commenters at a probation officers' employee blog . I'd suggested that Bexar judges should rein probation director Bill Fitzgerald in, but Allen thinks they won't do it because:
judges are worried about losing their immunity from lawsuits if they get involved in the day-to-day matters of the probation department — and they've been told by the AG's office that what constitutes "involved" is very hard to define. Another issue is that the group that oversees Fitzgerald is made up of 21 judges from two different judicial levels, and even getting a quorum, much less agreement on a sticky subject, can be quite a headache.
If that's accurate, it means that Fitzgerald is basically a rogue acting with no oversight at all. Bexar judges should be less worried about their immunity and more worried about their responsibility to oversee the probation department and ensure it isn't entirely dysfunctional. Voters don't necessarily understand that judges are supposed to control this mess, but probation officers in Dallas helped unseat judges in the last election cycle who weren't responsive to needs of POs (and for that matter probationers themselves).

I also wonder what Greg Abbott, the Texas Attorney General, thinks about his minions trying to out anonymous blog commenters, not because they libeled anyone but simply to expose them to possible retaliation? Why would Abbott allow his attorneys to bully Bexar probation officers this way?

And would Google have just turned the information over if plaintiffs' attorneys hadn't filed a motion to quash? I've wondered about this in the context of Texas Youth Commission commenters on Grits, and this makes me more curious than ever what information Google/Blogger keeps on IP addresses of anonymous blog commenters and under what circumstances they release the information?

If this kind of bullying is tolerated, I wonder what other shennanigans Bexar judges are letting Bill Fitzgerald get away with at the Bexar County probation department because they're afraid to get involved? I may have to mosey down to San Antonio soon to look at the entire court file on this case. No wonder his employees are angry at him.

UPDATE: Thanks to Texas Justice Dot Org, here are all the pleadings in the lawsuit (pdf) between Bexar probation officers and probation chief Bill Fitzgerald, for those interested in more detail.

New law will finally solve guns and traveling question in Texas

Good news for Texas gun owners: Finally, the question of whether you can carry a concealed, loaded handgun in your car is about to be decided with the passage of HB 1815, discussed by Grits here.

Earlier this year a public policy report I wrote (pdf) was published under the joint auspices of the Texas State Rifle Association, the Texas Criminal Justice Coalition and the ACLU of Texas criticizing attempts by some prosecutors to circumvent a statute passed during the 79th (2005) Texas Legislature. The open-records based study even received attention from The New York Times, and was widely distributed in support of HB 1815 by Isett/Hinojosa, the legislative fix that would disallow Texas prosecutors from sidestepping the law.

The new version of the law, which everyone expects the Governor to sign, repeals the old language entirely and says an individual cannot be charged with unlawfully carrying a weapon (UCW) in their personal vehicle unless:
  • the handgun is in plain view (not found as a result of a consent search),
  • the person is engaged in criminal activity other than traffic violations,
  • the person is legally disallowed from owning a weapon (e.g., past criminal convictions), or
  • the person's name is in the state of Texas' criminal street gang database.
Otherwise, if the weapon is concealed on your person or somewhere in the vehicle out of plain sight, and none of the other restrictions apply to you, as soon as HB 1815 takes effect on September 1, 2007 it will be legal to carry a handgun in your car.

DAs fear public scrutiny - may make web discussions secret

Reacting to this Grits post where I questioned DAs interpretation of confidential informant rules, some members of the District and County Attorney Association now want to make their discussion board closed to public web access, despite the fact that taxpayers pay their salaries and the discussions would be avaiable anyway with a simple open records request. Prosecutor Greg Gilleland said the closed discussions were needed to keep prosecutors from being subjected to "derision and insults" on Grits and other blogs - I think that's wrong and invite you to read for yourself to see if I derided or insulted anyone.

Even so, not all prosecutors agreed this would be a good idea. One anonymous ADA who's webhandle is RTC wrote:
It seems to me that because this organization is supported by public tax dollars, whether through grants or membership fees (which are paid for by the county), that it would be terribly improper to not allow the public access or to set up some sort of "secret" forum.
That's certainly how I view it - there's no doubt in my mind these discussions are public records under current Attorney General interpretations. Prosecutors' desire to conceal such discussion only raises the question, "What do they have to hide?"

As always, you can count on Williamson County DA John Bradley to toss out the most specious, outlandish arguments to support an insupportable position: "
Do you also think the public has a right to listen in on our phone conversations?" he spuriously asked RTC.

Allow me to answer on RTC's behalf: A phone call isn't a record under the public information act, so your question doesn't apply.
What's more, when involved in phone calls or email conrrespondence involving a case, attorney work product and client privilege remain fully intact and such records are protected by law.

By contrast, when an attorney broadcasts information widely to other lawyers NOT involved in the case, any privilege he might have relied upon immediately goes away. If Bradley doesn't know that, he's not much of a lawyer - since he's actually a pretty smart guy, that makes me think instead he just wants to muddy the issue to justify an unjustifiable position.

Official web conversations between public employees including DAs will remain open records under the Public Information Act so long as current law and precedent stands. The question is will prosecutors choose to make it as difficult as possible for outsiders to access the information? A lot fewer people would file open records request than click on the DA's website. It really does make you wonder what in the world Bradley & Co. think they have to hide?

Robert Guest, a former prosecutor who blogs at I Was the State, left a quote from Patrick Henry in Grits' comments recently that's entirely apropos to this discussion: "The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them." I'm glad some prosecutors like RTC understand that, even if the more outspoken DA advocates like John Bradley don't concern themselves with such populist niceties.

Unseemly Perry veto shows how GOP fear of felon voters creates self fulfilling prophecy

With the 80th Texas Legislature behind us, now we can look forward to seeing how much of what was passed survives Governor Perry's veto pen. Already Governor 39% has vetoed a bipartisan bill that drew no organized opposition at the Lege: HB 770 notifying ex-offenders when they become eligible to vote and sending them a voter registration card (see Grits' discussion here, and testimony from TCJC).

Perry's veto message on this bill is a bit of mealy mouthed flotsam masking base political fears that more ex-offenders might vote. It reads like one of Terry Keel's parliamentary rulings, avoiding the central questions and dressing up an unreasonable, politicized stance whose only real justification is political gain.

The Governor's main, stated reason for a veto is that registering ex-offenders isn't part of TDCJ's "mission," but the state took away the voting right when offenders went to TDCJ, and it doesn't seem like a stretch to notify them when that restriction is removed. When offenders get "off paper" they already receive a packet of information from TDCJ, and this would just add the notice that they're eligible to vote and a registration card.

Besides, the Department of Public Safety's "mission" is not voter registration, but that doesn't stop Texas from operating its "motor voter" program to let people register to vote when they obtain or renew their driver's license. If there's a difference, I don't see it.

Indeed, Perry's veto message is full of such red herrings and misreprsentations. Perhaps the biggest one: "the state does not currently provide this service to law-abiding citizens, such as high school graduates who are new to voting. I find it unseemly that the state would make a greater effort to register former inmates to vote than we would any other group of citizens in this state."

Well, Mr. Perry, we do notify kids they can vote. I was handed my first voter registration application in a high school government class, and most kids get a driver license so the motor voter program gets them a registration card.

For ex-offenders, though, if they're not "off paper" when they re-apply for a driver's license, they won't be eligible to register then like others would be. The main reason for the bill is that many ex-offenders don't know what are the laws surrounding when they become eligible to vote again - a voter registration drive last year among ex-offenders found many people eligible to vote who believed they weren't allowed to do so. The 18-year old voters the Governor describes don't suffer similar misunderstandings.

Plus, the 18-year old voting age is uniform nationwide, while every state has different laws on when ex-felons can vote. The situations simply aren't analogous. We're not talking about just a few people. Nearly one in 20 adult Texans today are in prison, on probation or on parole.

In reality, it's Governor Perry's position on this that's "unseemly." The real reason for his opposition: Many GOP political consultants believe ex-offenders will be more likely to vote Democratic. OTOH, that could just be a self-fulfilling prophecy - perhaps it's policy stances like this one that make these voters less likely to support the GOP. Two thirds of Republicans in the Texas House and 75% of GOP senators voted for HB 770, but thanks to Governor Perry's veto, it will be hard for Republicans to avoid appearing as though this is their party's stance.

Monday, May 28, 2007

Bexar Probation Director Seeks Anonymous Employee Blog Commenters' Identity

As part of an ongoing feud with his employees over whether the department will unionize, Bexar County probation director Bill Fitzgerald is seeking the identities of anonymous employee blog commenters on a relatively new blog called Bexar Me the Pain. (Click on the image above to enlarge the relevant portion.) Grits has had quite a few Bexar probation officer commenters but so far I don't think this blog has been included in the request.

More on this as I get it, but this looks to me like a dangerous precedent. Bexar judges, who are Fitzgerald's boss, should tell him to back off and leave his employees to exercise their free speech in the blogosphere. The only reason for him to want the information is to retaliate, and that will only worsen problems at the already troubled department. See more background on the lawsuit here and here.

"Pre-Parole" An Oxymoron Under Current Texas Parole Board

Texas Parole Board chief Rissie Owens doesn't care if the Legislature created special programs and facilities to guide and implement the parole process, she told the Dallas Morning News ("Inmates fight the prison of fading 'pre-parole' system," May 28) the board still won't grant parole to eligible inmates until it's good and ready.

Repeatedly throughout the 80th Texas Legislature, experts from Dr. Tony Fabelo to the Legislative Budget Board to TDCJ to the Chairs of the Senate Criminal Justice and House Corrections Committee all fingered the parole board's super-low approval rates as a primary cause of Texas prison overcrowding. This Dallas News article shows an example why. Owens and the board simply ignored programs and processes legislators set up in the past, casting doubt for this writer whether she and the board can be counted on to live up to their recent commitments to improve parole rates. Reports the News:

the Mineral Wells unit is a "pre-parole transfer facility" in name only – a remnant of an ambitious program launched a quarter-century ago aimed at relieving prison overcrowding and reducing repeat offenders.

Three inmates have gone "over the fence" since August. Others have paid hundreds of dollars to join a lawsuit protesting the parole system. And still others have sent lengthy letters to the "free world" venting their frustration.

It has reached such a critical point that officials have started moving some of the inmates back into regular prison facilities for security reasons. Between 50 and 60 inmates who had been denied "mandatory release" four times were transferred .

"If you've been denied mandatory supervision four times, then those offenders may become more frustrated," said Bryan Collier, director of the parole division. "And then they feel they may be more prone to [escape]."

Sonny Morris understands – he's been denied parole twice since arriving here.

"I can't do my time here," he wrote in mid-May. "I'm desperate to get home ... to get back to TDC and out of this ... abyss called Mineral Wells."

Shortly after that letter, the convicted burglar from Dallas committed a minor infraction in the hope that it would get him a transfer out of the parole division and back to the prison system. He asked an officer to smuggle contraband out of the unit. Until then, he had worked hard to maintain a record of good behavior so he would be granted parole.

His plan worked. He is due to be transferred to another unit – without the perks of "pre-parole."

Still, Mr. Morris hopes his chances of release will be better there than in Mineral Wells.

Only about one in 10 Mineral Wells inmates is any closer to release than inmates elsewhere in the system, estimated Rissie Owens, chairwoman of the Texas Board of Pardons and Paroles. The other 90 percent simply have been assigned there by the parole division of TDCJ and haven't been approved for release by the board.

Because of the name, inmates "probably think ... based on what 'pre-parole' would mean in the perfect world – that they're going to be released," said Ms. Owens.

"The purpose, the role, whatever of the pre-parole transfer facility? Talk to TDCJ," Ms. Owens said.

Yeah, I can understand why the inmates would "probably think" that! What inmates couldn't know is that Rissie Owens and the Board of Pardons and Parole routinely and arrogantly flout attempts by elected officials to guide their work, which is a big reason we face a prison overcrowding crisis today.

As mentioned previously, Rissie Owens' husband is Ed Owens, the current Czar at the Texas Youth Commission, placing an inordinate amount of authority over the state's corrections system in this one household.

Testimony earlier this year to the Sunset Commission revealed that the Board of Pardons and Parole is MORE likely to follow their own guidelines for releasing dangerous offenders than nonviolent ones. Ignoring the intended purpose of the pre-parole facility is another example of the BPP failing to exercise its power in the way the Legislature intended. As for "why?," add that, I guess to the growing list of questions Rissie Owens won't answer.

140 Days is a long, damn time

Sine Die is today, the final day of the 80th Texas Legislature. Somebody be sure to let me know where the good parties are.

Sunday, May 27, 2007

Bad Big Brother Bill Just Won't Die

I reported that HB 13, the Governor's homeland security bill, was dead, but I was premature. The Texas Observer blog says that many of HB 13's most objectionable aspects were added in a conference committee to an unrelated homeland security bill, SB 11, which Grits also opposed on different grounds.

Because Rep. Frank Corte added the language in a conference committee that went "outside the bounds" of the original bill, SB 11 will require a 2/3 vote to approve the conferee's report. I hope House members secure bipartisan support to shoot the bill down - at this point IMO the bill actually reduces public safety (by letting politicians conceal their security failures) and gives the Governor and his political operatives too much power to access criminal intelligence data and operate his massive Big Brother TDEX database.

House members, please, don't let leadership strong-arm you into supporting yet another bad bill: Vote down SB 11 when its conference report comes before you today.

UPDATE: This is one of the bills NOT finally approved when 56 House members walked out last evening to protest the Speaker. The House can suspend the rules to take these bills up today, assuming they can make a quorum, so I'll update when we have the denouement.

BAD NEWS! The modified SB 11 passed - Rep. Noriega gave a speech saying that despite the concerns raised, the bill had some good things in it and he feared a vote against it would be used against Democrats to say they didn't want to fight terrorism. That argument seemed to sway the day. Only 20 members voted against the motion to go outside the bounds on this bill, and Rep. Abel Herrero, who valiantly fought the bill throughout session, inexplicably backed off a point of order that would have killed it at the very last minute to allow the bill to pass. Now it goes to the Governor, where the chance of veto is nil (these were his bills).

See prior, related Grits coverage:

Adios, Jay Kimbrough! Ed Owens Now TYC Czar

Apparently having done all the damage he can do in the short term, Texas Youth Commission conservator Jay Kimbrough has been named deputy chancellor of Texas A&M, where he'll be the number two man under another former top aide to Gov. Rick Perry, Dr. Mike McKinney (who happens to have been my boss years ago at the Texas Health and Human Services Commission).

Kimbrough's departure leaves former TDCJ #2 man Ed Owens Czar of the TYC system for the next two years. I've already explained why I don't think he's a good choice, but it may surprise readers to learn that the Governor did not solicit my opinion before Mr. Owens' elevation to czar status.

Owens' wife, Rissie is also a Perry appointee - she chairs the state's Board of Pardons and Parole, which places an inordinate amount of authority over the state's corrections system in the hands of this little known power couple.

TYC seems to have fallen off the media radar screen for now, but I hope it continues to receive the level of scrutiny afforded it at the height of session, and that the same spotlight is shone on similar problems at TDCJ (the state settled a lawsuit last year, e.g., that alleged Mr. Owens covered up sexual harassment charges against a high level employee at that agency).

Plenty of TYC employees read this blog, so let me know in the comments what you think of Kimbrough's tenure at TYC - what he did right and what he did wrong - and what you think are the prospects for the agency under Ed Owens' leadership?

Attorney seeks information on poor medical conditions at McLennan County Jail

This note was left this morning in the comments to an older Grits post and I thought I'd post the attorney's request in case there's anybody out there who'd like to help her out.
I am an attorney and I represent the former Nurse Supervisor at the McLennan County Jail [Waco] who reported the grossly inadequate medical assistance at the Jail and after six months of trying to get change to happen, was fired due to her reporting the problem. A lawsuit is pending against the County on her behalf. Anyone with information AND willing to be public about retaliation for reporting poor medical conditions at the McLennan County Jail from October 2006- March 2007 can contact me. Please be aware that since this is a lawsuit, your response cannot be kept confidential, and I may or may not be able to respond.
Brenda H. Collier
UPDATE: The whistleblower plaintiff was allegedly terminated for testifying to the Texas Legislature about McLennan jail health problems!

I emailed Ms. Collier to ask for a copy of the plaintiff's original complaint to get more information about the lawsuit. Take a look at it here, and a couple of other documents related to the case. According to the plaintiff, Charlice Woodruff:
Woodruff reported, among other things, the failure by the County Jail to have appropriate medical staff to care for inmates, for failing to properly dispense and dispose of drugs, and the failure by the jail to follow doctors’ orders. Woodruff reported that these matters placed the health of the inmates at risk, violated law, and in some specific instances placed the lives of specific inmates in jeopardy. Woodruff also reported that certain narcotic drugs were missing and requested an investigation be conducted. ...

She learned that these conditions had been ongoing prior to her arrival at the County and that prisoners were routinely not provided medication and medical services and such information was being covered up by the County. Prior to March 1, 2007 Woodruff prepared a memo detailing some of the issues that she had reported previously and presented it to the County Attorney, Michael Dixon. Dixon told Woodruff that he wouldn’t want to see a copy of the memo in the County files due to a pending potential wrongful death claim where an inmate had died at the County jail after allegedly receiving insufficient and improper medical care. ...

Woodruff had scheduled some time off to attend a legislative session in Austin, Texas to work on, among other things, protections for nurses who report unsafe medical conditions. Woodruff returned from that trip on March 6, 2007.

When Woodruff attempted to return to work on March 6, 2007 immediately following her visit to the legislators proposing additional protection for nurse whistleblowers, Woodruff was met at the jail/workplace by Captain Mynar, and was barred from entering the workplace. At that time Mynar informed Woodruff that she was placed on “administrative leave”.

While on “administrative leave” and without notice to Woodruff, Woodruff’s job was offered to another nurse employed outside the County. The employees of the medical services at the County Jail were instructed to have NO CONTACT with Woodruff, or face disciplinary action. Woodruff was left to twist in the wind.

Woodruff requested a meeting with the Sheriff’s Office, which was held on March 21, 2007. At that meeting Woodruff filed her formal grievance with the County. A copy of the grievance is attached to this Amended Petition as Exhibit 2. At the conclusion of the meeting the County denied Woodruff’s grievance. Woodruff filed this lawsuit March 23, 2007.

Woodruff was then notified that her job was terminated by the County effective March 29, 2007, less than 30 days after presenting the Woodruff memo to the County. At the same time as Woodruff was fired, at least two other nurses employed by the County Jail were fired, and the approximate 27 year contract with the Doctor (Dr. Rodney Ryan), who had provided medical services for prisoners at the McLennan County Jail was terminated on one day’s notice to Dr. Ryan.
Juicy stuff - these allegations represent much more than just evidence from insiders about poor jail health conditions. They tell us that some Sheriffs will allegedly use pretty darn draconian tactics to keep themselves from being held account for preventable jail deaths. Legislators need to have a talk with her former bosses - they need to make sure government employees feel free to report abusive practices to the Legislature and discourage coverups to avoid more TYC-like catastrophes.

One of Woodruff's big concerns about in-jail healthcare in McLennan county are practices that make it more likely inmates could suffer preventable but pontentially fatal staph infections when receiving in-jail health care, a problem that's surfaced in many larger jails around the state. Bully for Woodruff for speaking out and bringing the issue to light via litigation.

Read the linked documents for more, and I'll try to provide updates as the case moves forward.

WSJ Eyes Profit in Prison Building Boom

Come to Grits for your business news? Well, maybe on this topic, anwyay -

More than a year after I called the trend "The Coming Immigration Detention Boom," the Wall Street Journal reports that "The prison industry looks ready to stage a breakout." Reports the Journal ("Profits for private jailers," May 27):
the Department of Homeland Security's Border Initiative and its detention of undocumented immigrants has further burdened the system. Federal prisons already have 33% more inmates than they were designed to house and state prisons are similarly overcrowded.

The upshot? A severe shortage of prison space -- and a robust outlook for the three biggest private jailers. ...

The vast majority of prisons are still owned and operated by federal or state governments; less than 8% of prisons are outsourced to private operators. But the private market -- dominated by Corrections Corp. of America, Geo Group and Cornell -- is expected to grow substantially over the next five years.

A February report from the Pew Charitable Trusts, a nonprofit research foundation, forecasts a 13% increase in the inmate population by 2011 -- in line with past growth rates, but further compounding the overcapacity problem. That amounts to as much as $27.5 billion in new prison construction and operation.

That kind of burden leaves states and the federal government with little choice but to outsource incarceration to private companies.

Corrections, Geo and Cornell are "far and away the biggest beneficiaries of that trend," says Patrick Swindle, an analyst with boutique investment bank Avondale Partners in Nashville, Tenn.

Astonishingly, but probably accurately, Journal writer Dan Burrows suggests that private prison stock might make a good "defensive" investment in case of a financial downturn. "When times are bad, more people tend to go to jail," Mr. [Jamie] Cuellar says. "It's awful, but it's true."

Bucking the national trend, actuarial estimates by Dr. Tony Fabelo indicate that with funding for alternatives, new treatment beds and the passage of several new laws, the state of Texas doesn't need to expand prison capacity (though budget writers have chosen to do so, anyway). But the feds are likely customers for these companies in Texas thanks to political pressures to increase immigration enforcement.

See the chart below to see how profitable this industry has become (Geo Group, incidentially, is the re-branded name for the company Wackenhut, which owns several facilities in Texas). As always, for more on private prisons in Texas visit the gals over at Texas Prison Bidness who track the subject much more closely than I do.

[Unlocking Profits]

Saturday, May 26, 2007

Caesar Leaves the Forum Alive

Photo by Matt Wright/Texas Observer

When Texas House Speaker Tom Craddick ignored then chased away his parliamentarian and refused to recognize Fred Hill or other members for a motion to vacate the chair, he essentially declared himself autocratic ruler of Texas' lower chamber - a man above the rules.

I've tended to mind my own criminal justice business on this blog and leave the hot and heavy Speakers race antics to others. But I was horrified and angered by what took place on the House floor last night, and I think every Texan should be, regardless of party or creed.

Parliamentary rules are the bedrock of democracy - in fact the only way real democracy can function. Rules matter.

Modern parliamentary rules in every American legislative body (and also Robert's Rules, for that matter) are based broadly on the set of rules Thomas Jefferson wrote when he was the first US Vice President and thus President of the US Senate. Jefferson said his main goal in creating parliamentary rules was to ensure the chair’s authority could not be “irregularly exercised” or exert an unduly “powerful effect on proceedings and determinations.”

Mr. Craddick flouted those restraints last night. He entered the evening the chair of the Texas House - by the time he left, he was Caesar. If the members had all pulled out knives and stabbed him to death, IMO they would have been justified.

Kids are dying in Iraq and being told it's to preserve democracy, but when democracy was trampled last night in the Texas House of Representatives, not a drop of blood was shed.

UPDATE: Bigjolly at the Lone Star Times editorialized for keeping Craddick and thought this post was over the top; we've been discussing the relation between democracy, elections, and parliamentary rules in the comments at LST, for those interested. Also Kuff has comments from Burt Solomons that I think are on the mark: He authored the current House rules and says he's "stunned" at the Speaker's interpretation of his own power. Me too.

No Strings Attached: Backroom deal removes all accountability from new prison spending

There's a real story to be had somewhere when language in the state budget gets changed during a conference committee and conferees from both chambers say they don't know who made the redactions or when! Mike Ward on the Statesman's Postcards from the Lege blog last night corrected an earlier, erroneous report that new prison funding would only occur if incarceration levels required it and diversion programs were implemented.

Now, reports Ward, Texas will build new prisons whether incarceration rates require them or not. The DAs are already gloating. Here's Ward's update:

Late word: The long-discussed restrictions on building new Texas prisons have suddenly disappeared.

First-available copies of the proposed state budget are missing a provision that would have placed constraints on prison officials before they could build new units. Such things as the effectiveness of diversion programs, paroles rates and other factors, plus review and approval by the Legislative Budget Board, would have to have been considered.

No more.

A disappointed Senate Criminal Justice Committee Chairman John Whitmire, who had championed the changes as a way to support cheaper and more effective drug-treatment and rehabilitation programs, reported just a few ago: “All the qualifiers have been stripped out of the budget.”

“Now, all that will have to happpen is to get (Legislative Budget Board) approval,” he said.

And that much-ballyhooed, new Legislative Criminal Justice Oversight Board that was supposed to help ride closer herd on the adult prison system and the scandal-racked Texas Youth Commission?

It’s funding has been cut to zero.

Legislation creating the board is in a Senate-House conference committee. Stay tuned to see whether it gets cuts, as well.

Prison officials have been arguing against it. Prosecutors have been arguing against any new hurdles to build new prisons. Senate and House criminal justice leaders had been pushing for both.

Somewhere, in a backroom deal in recent days, they disappeared without explanation.

In a backroom deal between who and who?! I want to know: Was there ever a vote among conferees on the topic, and if so who voted how? I'd heard rumors the changes were made without a formal vote, but somebody needs to explain the process by which conferees decided to strip ALL accountability mechanisms out of a quarter billion dollars in spending for prison construction.

The House approved no prisons. The Senate approved prisons with strings attached. So how do we get from there to new prisons with no strings attached? Like Ward said, "Somewhere, in a backroom ..."

Damnit to hell! Have I mentioned that I H-A-T-E May of odd numbered years?

Friday, May 25, 2007

Ding Dong the Witch is Dead: Why HB 13 Died and Why it Doesn't Matter

Governor Perry's homeland security bill, HB 13, died today on a point of order called by Rep. Lon Burnam. For you non-parliamentarians in the crowd, that means it's DEAD DEAD DEAD DEAD.

Fine by me - the House led by Rep. Jessica Farrar made the bill barely tolerable, but the Senate loaded the thing up like a Christmas tree and at this point I'm just as happy to see it go. Given the alternatives, no bill at all is as good an outcome as any. (See previews of its demise from Kuff, Brandi Grissom, and the Texas Observer.)

So thanks, Lon - you get an extra gold star for that one.

What will the bill's death mean in the real world? As far as I can tell, not much.

The Governor already had authority to accept federal homeland security grants, so that doesn't change (his homeland security director Steve McCraw is the agent who receives and distributes those funds), and he certainly has authority to delegate that task to DPS or whomever he chooses. But this does mean a couple of things offhand:

1. A provision in current law (which would have been deleted in the Senate version of HB 13) limits the Governor's authority over the TDEX database and he may have to pull his thumbs out of the criminal intelligence pie anyway.

2. The Governor will still not be accountable to anyone for how he spends the $100 million given him by legislative budget writers for border security. But then, HB 13 would have only ratified his authority, not restricted it. This is a wash - no change from the status quo.

3. Because there is no accountability or oversight, it will be up to the media and nonprofit watchdogs to use open records to study how the governor spends pork barrel money legislators gave him. This will be a labor intensive task, one I hope the MSM will undertake with the same zeal they've covered the border during the election season.

If the Governor wanted to avoid the rightful criticism he faced over ham-handed political appointees mismanaging law enforcement resources like TDEX, he should transfer grant making authority to DPS. They in turn should be charged with funding projects that implement the state's existing, overall border security strategy, not just dole out pork like candy to border politicians with little regard for improving public safety.

Sen. Carona could still revive the bill with a 4/5 vote by stripping off all the Senate amendments, but at this point I hope the thing just dies. Better for now to monitor what the Governor does with his new border pork and start anew to rein in the whole mess 18 months from now.

See prior Grits coverage:

Are there "strings" attached to new prisons or not?

I already mentioned that Mike Ward reported today on the Statesman's blog that new prison building in Texas would come with "strings" attached that would keep them from being built if incarceration growth didn't require it.

Now I'm hearing a wave of rumors that the Rider, which contained the "strings" Ward referenced, isn't in the final budget, though NOBODY will admit to having seen a final copy yet. Staff are nervous to say anything, even on background. It's really weird - makes me think there's something sneaky going on. More when I get it.

UPDATE: I just heard from the Texas Criminal Justice Coalition's Ana Correa that the restrictive rider Ward referenced definitely is NOT in the budget. LBB still has a decisionmaking role, she said, but there are no benchmarks regarding what incarceration level triggers new prison building to guide their decision. The budget text still isn't available yet (it's nearly 5 p.m. as I write), but I'll update as soon as I hear more.

A Blueprint for Meeting the Needs of Girls at TYC

The Texas Youth Commission has announced they'll begin to gender segregate youth inmates, but will that solve any of the problems identified at the agency? The ACLU this week released a report (pdf) commissioned by TYC conservator Jay Kimbrough analyzing the status of girls in TYC. Said the press release:
“Although TYC's legal duty is to rehabilitate delinquent children, in reality TYC facilities look and feel like prisons,” said principal researcher Mie Lewis, an ACLU Women’s Rights Project attorney and human rights researcher. “Girls in particular are hurt, not helped, by a system that puts punishment before treatment.”

"We are concerned about the current shortfalls in TYC's provision of services to girls, and we will be monitoring the implementation of reforms closely to ensure our concerns are addressed," said Lisa Graybill, Legal Director for the ACLU of Texas. "TYC has a unique opportunity to transform from a statewide embarrassent to a national model, and we are encouraged by the interest officials have shown in receiving information and assistance from advocacy groups like Texas Coalition Advocating Justice for Juveniles, the Texas Criminal Justice Coalition, and the ACLU."

ACLU researchers made the following broad recommendations:
  1. Girls in TYC custody are very likely to have experienced abuse prior to their placement; they need, but are not receiving, the individualized counseling necessary to cope with childhood disadvantage, familial abuse, and psychological damage.
  2. Major aspects of TYC, including its range of available placements for girls, its institutional culture, and its rehabilitative programming, fall short of meeting the needs of girls.
  3. The ongoing disadvantage experienced by girls in TYC custody calls for the immediate appointment of a girls’ advocate within the agency.
The investigation was undertaken at the behest of Conservator Kimbrough by Mie Lewis, ACLU Women’s Rights Project attorney and human rights researcher, and her assistant Michele Batiste, a former TYC inmate and participant on the Conservator Case Review Panel. Lenora Lapidus, Director of the ACLU Women's Rights Project, contributed to and edited the report, and the ACLU of Texas participated in the research.
See the full 13-page document for more details. Hopefully other ACLU-related headlines this week won't drown out discussion of this new report - it addresses an important topic, particularly for the 800 or so girls in TYC and their families.

I've been honored to have quite a few TYC staff commenters visiting Grits in the last couple of months, so I'll be particularly interested to hear what TYC folks think of the recommendations, plus any other thoughts you have on the topic in the comments.

New prisons come with strings attached

Mike Ward has an update on the status of new prisons in the yet-to-be-revealed state budget in the Austin Statesman's Postcards from the Lege blog:

Building the new prisons will come with strings. Prison population numbers will have to exceed targets, and they can be built only with the approval of legislative leaders and the Legislative Budget Board.

Other CJ budget details just confirmed:

The budget will include funding for around 9,000 new slots — both lockup and treatment beds — as part of more than $206 million in additional funding. That’s the largest boost since the early 1990s, when the state was building prisons fast and furious and took a later-aborted shot at opening more than a dozen drug-treatment units.

Among those new beds will be around 1,400 in Intermediate Sanction Facilities for parole violators, 1,900 in state jail treatment programs, 1,500 each in specialized drug-treatment programs such as the Substance Abuse Felony Punishment units and the In-Prison Therapeutic Programs, 800 in community-based residential treatment for parolees, 500 in special units for convicted drunk drivers and 300 in halfway houses.

In addition, the budget will include an additional $13 million for local probation programs and $10 million more for mental-health diversion programs.

Those details confirmed by House Corrections Committee Chairman Jerry Madden, R-Richardson, and Senate leaders.

Ward said whether new prisons made it into the budget was a mystery even to "leaders in charge" of the issue, which jibes with what I'd heard - House opponents of new prisons on the conference committee were kept out of the loop and were surprised to discover prisons were approved without a formal vote by conferees.

More on this after the budget itself is made public, probably sometime today - then we can all stop guessing and see what they actually came up with.

Lege may still approve Office of Capital Writs

I may have been critical recently of Rep. Aaron Peña's leadership of the Texas House Criminal Jurisprudence Committee, but he can still help pass an important bill that Texas really needs - HB 1267, which would improve frequently dismal legal representation for indigent capital defendants.

The original House bill was pretty non-descript, requiring only that attorneys who provide indigent defense services be paid more promptly. But the Senate approved several amendments, the most important of which by Sen. Robert Duncan added the contents of SB 1655, which died on the House calendar Tuesday night
. This language implements recommendations by a State Bar task force (pdf) to ensure that defendants sentenced to death get competent representation in habeas corpus proceedings.

Duncan's amendment creates a small office (~3 attorneys) to handle new state habeas corpus appeals in death penalty cases. Except in cases in which a conflict exists, this new "Office of Capital Writs" would replace the current system, under which judges appoint private attorneys from a list maintained by the Texas Court of Criminal Appeals. Funding for the office would largely be offset by redirecting money already earmarked for compensation of appointed lawyers under the existing system.

Recent investigative reporting by the Austin Statesman (see here and here) documented how incompetent lawyers — often with a very limited understanding of this complex area of practice — have repeatedly been appointed to death penalty habeas cases, only to fail their clients. The bill fixes a grossly flawed system that has routinely appointed incompetent lawyers when lives are on the line.

Texas law already promises death penalty defendants competent lawyers for what is arguably the most important phase of appeals: state habeas corpus. However, the system has broken down in large part because of an utter lack oversight and accountability for this important legal work. Lawyers who failed to meet their most basic responsibilities (such as meeting their clients or conducting a thorough investigation) all too often suffer zero consequences for their failures. Some have turned in appeals rife with gibberish, others cut and paste irrelevant sections from other appeals, often failing to raise important issues altogether.

Many states successfully avoid these problems by delivering habeas services through a small, dedicated state office. Such system ensure better training and oversight and provide a clear mechanism for holding attorneys accountable for the quality of their work (or lack thereof).

The prosecuting attorneys who handle state habeas corpus appeals in major Texas jurisdictions already are part of dedicated units in those district attorneys' offices. Such a system generally ensures greater professionalism and consistency in the quality work—both of which are clearly lacking in our current system of state habeas defense.

Jim Lampley from Peña's office said his boss intends to request a conference committee because several House members and the Governor have expressed objections to other portions of the bill. However, he said, so far nobody seems to have problems with Duncan's amendment and he thought it should be "safe."

Here's hoping that's right and Peña successfully defends Duncan's amendment in the conference committee.

Ombudsman's conviction causes TYC conservator to reverse policy

TYC will NOT automatically fire any employee convicted of a misdemeanor in the last five years, says conservator Jay Kimbrough, now that the media has reported that his high-profile appointment for ombudsman, ACLU of Texas director Will Harrell, was convicted of reckless driving three years ago. Wrote the Statesman's Mike Ward ("TYC to adjust hiring policy," May 25):

Under a Youth Commission personnel policy put into effect April 13, in a get-tough move to rid the agency of convicted felons working as guards and caseworkers, no one convicted of one of five types of crimes can be hired, including those convicted of a Class B misdemeanor within the past five years.

"That was not the policy I asked for, and we're going to change that policy," Jay Kimbrough, the agency's conservator, said when asked Thursday about the apparent conflict between the policy and Harrell's past.

"It was my intention that our policy follow that of (the Texas Department of Criminal Justice), that people who had Class A and B misdemeanors in the past five years not be allowed to work in correctional positions. But TDCJ does allow people with misdemeanor convictions to work in other positions, and that's what I intended to allow at TYC."

You know, Mr. Kimbrough, no offense but I think you're full of crap on this one. You never showed the least concern for employees who'd made past mistakes until your new, star appointment turned out to be one of them. Now you tell us it was never your intention to do that, but you've had nearly 500 employees - about a tenth of TYC's work force - worrying day to day whether you'd fire them over similar indiscretions for the past two months!

Ward's article offers further evidence that this new policy has been implemented haphazardly with little forethought or oversight and that many mistakes have been made already including wrongful terminations:
Kimbrough said that in recent weeks, officials have discovered that some people the Youth Commission fired for having past felony convictions, in fact, have since been found to have been convicted only of misdemeanors. He said they will be eligible for rehire, as long as they fit the new policy after it is corrected.

Kimbrough said only "a handful" of people are in that situation.

Even with the proposed policy change, which would be to his benefit, Harrell said Thursday that he thinks the revised rule will still be "too restrictive."

"I support the proposal that prohibits people convicted of violent felonies and sex offenders from employment," he said.

"But someone who had a run-in with the law and changed their life for the better is exactly the kind of person you want involved in in criminal justice at TYC," Harrell said. "There is a certain perspective that actual experience gives you."

This is turning into a witch hunt - most people being targeted by TYC's administration for termination have nothing to do with any of the scandals that have surfaced. Instead, they're being punished for prior history that in every instance the agency already knew about through criminal background checks when they were hired.

Firing people who nobody believes were abusing kids makes TYC less safe, not more so. I don't think they've rooted out all the actual scandal yet, and this ill-conceived "reform" has done little but harm employee morale and set the agency up for a raft of (probably successful) wrongful termination lawsuits. Kimbrough should take Harrell's advice and narrow the employment restriction - he's overreaching, and this incident is just one of what I predict will be many going forward that make the policy, and its originator, look pretty foolish.

UPDATE: Several lawmakers called for Harrell's resignation over this, but he and Kimbrough say he'll stay. That seems a little petty for reps to be calling for his head. I guess the pols get so used to grandstanding on this topic it becomes difficult to stop. This is a dumb rule that deserves to be changed, not just for Will Harrell but for everybody.

See prior Grits coverage:

Watered down parole measure amended to bill in Senate

In an effort to salvage some of the legislation that died waiting for a floor vote in the Texas House, the Texas Observer blog lets us know that Sen. John Whitmire got his SB 838 (discussed here on Grits) amended to another bill. The legislation would reduce revocations to prison for technical parole violators, but Bryan Sen. Steve Ogden led an 11th-hour charge to kill it. A quick-turnaround negotiating session resulted in the language being scaled back to include only first-time parole violators.

This bill already passed the Senate unanimously once, so it's a bit of a cheap shot for Sen. Ogden to come back and try to shoot down this long-debated, intensively researched proposal for which he himself previously voted. The Observer speculated that Ogden is worried about keeping demand high enough to justify three new prison units he wants to build, but my guess is he was carrying water for the prosecutors' association.

Since I thought SB 838 was dead - it was one of the bills the House didn't get to on Tuesday, their last day to consider legislation from the Senate - even half a loaf on this is better than I'd feared. But I can understand Whitmire's frustration at his colleauge's last-minute flip flop: Doing his best John Kerry impersonation, Sen. Ogden supported SB 838, after all, before he was against it.

Incidentally, the legislation Whitmire amended was HB 3200 (discussed by Grits here), which is a key component restructuring payments to local probation departments to give incentives for helping probationers succeed. It's good to see Sen. Whitmire working hard down to the wire to get his public safety package through.

Thursday, May 24, 2007

Rumor mill swirling that new prisons included in budget conference report

The rumor mill is swirling that at least two House budget conferees were steaming to discover that the new Texas budget includes funding in Article IX for three new prisons, though no one has seen the final document to confirm it. Apparently the conference committee never voted on the rider in question, according to one well-placed rumor monger, so the House conferees' fairly rigid stance against new prisons was never put to a test in a formal vote.

I wonder if it's a point of order on the bill that such a big item was never agreed to by one chamber's conferees? More on this when I get more.

The Senate included only $35 million in the next budget for prisons, but that relatively small amount (in the scheme of TDCJ's budget) commits Texas taxpayers to annual payments of $106 million or more for the next twenty years to cover debt payments and prison operating costs. This despite the fact that the best available actuarial estimates say Texas won't need new prisons if the state make other proposed policy changes and fully funds diversion programs.

What's more, there are pragmatic barriers to prison building the Senate simply ignored: Primarily that Texas can't hire enough guards to staff the prisons we've got and isn't likely to succeed in staffing new ones.

If it's true new prisons made it into the conference report, then it's very late in the game to stop their approval, but perhaps not too late. Says one source:
Although the budget will not be available until some time later tonight or tomorrow, we have heard that the rider is in Article IX, and that it appropriates funds contingent upon passage of SJR 65 (which approves $1 billion for general revenue bonds to be used for various items, including prison construction) and S.B. 2033 (which allows the spending of those funds).
SB 2033 has already passed both chambers without amendment, so it's on its way soon to the Governor. But SJR 65, which authorizes issuing a billion dollars in new debt for a variety of pork barrel projects, was amended in both the House and the Senate. To me, if it's true that new prison building was covertly added to budget through a rider without the knowledge of all the House conferrees, I'd like to see them just shoot down SJR 65 to stop the prison builders. That would kill other members' projects, too, so it would be a contentious vote, to say the least.

The other option is for the House members to reject the budget tomorrow, send it back to the conference committee, strip out the offending Rider, and HB 1 could still be passed before Monday's deadline. I hope that's exactly what they do. If Texas decides to build new prisons, fine, that's the Legislature's call. But if they're built just because members never got the opportunity to actually decide the question, that calls into question the legitimacy of the whole process.

Good Criminal Justice Bills headed to the Governor

Still no word on the fate of new prisons in Texas' forthcoming state budget, which might be unveiled as early as tomorrow, I'm told. But thanks to the indispensible Texas Criminal Justice Coalition, I received this email update on more positive criminal justice legislation that's passed the Texas Legislature, including several bills already sent to the Governor:

Sent to the Governor!

HB 312 by Representative Turner (D-Houston), and carried by Senator Whitmire (D-Houston) in the Senate - which ends technical revocations for fee non-payment- has been Sent to the Governor! (See prior Grits coverage.)

Click here for more information.

View TCJC fact sheet

View TCJC testimony

View Senate Committee on Criminal Justice report

HB 1178 by Representatives Escobar (D-Kingsville) and McClendon (D-San Antonio), and carried by Senator Ellis (D-Houston) in the Senate - which ensures that defendants are informed about their right to a lawyer in criminal cases - has been Sent to the Governor!
(See prior Grits coverage.)

Click here for more information

View TCJC fact sheet

View FAQs

View Senate Committee on Criminal Justice report

Key House Bills that Passed the Senate!

HB 1678 by Representatives Madden (R-Plano), Turner (D-Houston), Haggerty (R-El Paso), McReynolds (D-Lufkin), and Hochberg (D-Houston), and carried by Senator Whitmire (D-Houston) in the Senate - which strengthens probation to stop the costly and ineffective flow into prisons - passed the Senate on Monday, May 21, 2007, and was signed in the House! (See prior Grits coverage.)

Click here for more information.

View TCJC fact sheet

View TCJC testimony

View Senate Committee on Criminal Justice report

HB 3200 by Madden (R-Plano), and carried by Senator Whitmire (D-Houston) in the Senate - which gives probation departments incentives to utilize progressive sanctions programs by establishing a new funding formula - passed the Senate on Wednesday, May 23, 2007! (See prior Grits coverage.)

Click here for more information.

View TCJC fact sheet

View Senate Committee on Criminal Justice report

HB 1121 by Representatives Anchia (D-Dallas), Peña (D-Edinburg), and Riddle (R-Houston), and carried by Senator Van de Putte (D-San Antonio) in the Senate - which ensures that police, prosecutors, and courts punish traffickers - passed the Senate on Wednesday, May 23, 2007, and was signed in the House today!

Click here for more information.

View TCJC fact sheet

View testimony

View House Committee on Criminal Jurisprudence Report

HB 3736 by Representative McReynolds (D-Lufkin), and carried by Senator Hinojosa (D-McAllen) - which lowers parole caseloads to allow for better supervision - passed the Senate on Wednesday, May 23, 2007, and was signed in the House today!

Click here for more information.

View TCJC fact sheet

View TCJC testimony

View Senate Committee on Criminal Justice report

HB 431 by Representative Madden (R-Plano), and carried by Senator Whitmire (D-Houston) in the Senate - relating to the release of a defendant convicted of a state jail felony on medically recommended intensive supervision - passed the Senate on Wednesday, May 23, 2007, and was signed in the House today!

Click here for more information.

View House Research Organization bill analysis

View Senate Committee on Criminal Justice report

HB 2103 by Representatives Kolkhorst (R-Brenham) and Gonzalez Toureilles (D-Alice), and carried by Senator Ogden (R-Bryan) in the Senate - relating to a pilot program to award scholarships to certain correctional officers enrolled at Sam Houston State University - passed the Senate on Wednesday, May 23, 2007 and signed in the House today!

Click here for more information.

View House Committee on Appropriations S/C on Education report

More Bills that Passed the Senate!

HB 199 by Representatives Madden (R-Plano), Noriega (D-Houston), and Leibowitz (D-Helotes), and carried by Senator Whitmire (D-Houston) in the Senate - which creates a residential infant care program for mothers confined in TDCJ facilities - passed the Senate on Tuesday, May 22, 2007, and was signed in the House today! (See prior Grits coverage.)

Click here for more information.

View TCJC fact sheet

View testimony

View Senate Committee on Criminal Justice report

HB 47 by Representative Hodge (D-Dallas), and carried by Senator Hinojosa (D-McAllen) in the Senate - which would allow the provision of in-cell educational services to inmates in TDCJ ad seg units - passed the Senate on Tuesday, May 22, 2007, and was signed in the House today!

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View House Research Organization bill analysis

View Senate Committee on Criminal Justice report

HB 1111 by Representative Turner (D-Houston), and carried by Senator Uresti (D-San Antonio) in the Senate - relating to prohibitions on and reporting concerning medical, psychiatric, and other research on children committed to the Texas Youth Commission - passed the Senate on Tuesday, May 22, 2007!

View Senate Committee on Criminal Justice report