Friday, February 29, 2008

Felony rap for stealing copper wire hasn't stopped thefts

Laws increasing criminal penalties tend to be a one-way ratchet; they only get harsher, they're seldom reduced.

An example that will likely be with us for a while is the new law making theft of metal wire a state jail felony - one of House Criminal Jurisprudence Chairman Aaron Peña's many pet enhancements last session. Peña's bill made stealing copper, aluminum or bronze wire a felony regardless of the value of the wire! But the law apparently failed to scare away would-be copper thieves as its proponents predicted.

I say that because on Wednesday afternoon, the lights went out in the Grits household, shutting down all computer equipment (I lost a half-finished blog post, actually), lights, washing machine, and everything else in the house. Looking outside, I quickly realized the whole neighborhood had gone dark.

The blackout just lasted a couple of hours, but it wasn't till yesterday evening I learned the cause: A thief electrocuted himself pretty severely trying to steal copper wire from an electrical substation. He got zapped with 80,000 Volts, if you can imagine- about 7,300 homes including mine lost their power.

In committee hearings over this bill last year, Peña and supporters said the legislation would "send a message" that dissuaded copper theft. But who has received it?

Instead of passing laws like this one that eat up more prison beds, perhaps that money would have been better spent renting a billboard because this fellow didn't get the "message." An energy company spokesman told the Statesman:
"Unfortunately, this incident will serve as a type of illustration of what can potentially occur," Clark said. "It's a pretty difficult problem when a person is willing to totally disregard their safety and go into a substation because, generally speaking, the people who are doing this type of thing are not knowledgeable and could not come close to recognizing the potential dangers."
A significant percentage of scrap metal thieves also number among the homeless population, which brings with it a whole 'nuther range of barriers to preventing these thefts. That's important not because it excuses bad behavior, but because it provides information that helps craft a solution. Obviously I don't want my electricity going off because of copper thieves; but at the same time, as a practical matter neither did the "enhanced" penalty prevent that from happening.

If someone is a) uneducated, and b) willing to risk their lives, why would legislators think jacking up the penalty to a felony (as opposed to more vigorously enforcing misdemeanor statutes), would do anything but give them "three hots and a cot" for a longer period on the taxpayers' dime?

That doesn't make anyone safer, but it sure helps fill the prisons faster, particularly when you "enhance" a misdemeanor to a felony, as Chairman Peña's bill did. A better solution in my view is to focus on vendors who purchase scrap metal illicitly. (See the final item in this post.) Dry up the black market on the demand side, and they'll soon have little reason to steal.

I don't know what the ultimate solution(s) to copper theft will turn out to be - probably in the long term, shifting to cheaper wire made of blended metals that don't have the same resale value. (Camera systems, touted in the Statesman clip, require extra police resources for rapid response or they're pretty worthless in such cases.)

There's a decent chance that the homeless guy or drug addict who risks their life to steal copper already have enough obstacles to success in life without adding a felony beef; it's not like copper thieves couldn't be punished - with up to a year in jail - under the law as it was before. Criminal laws work best when they focus on outcomes in the real world, not the "message" some pol claims they'll send on the campaign trail.

CCA upholds 5-year sentence for central cop in Dallas fake drug scandal

Thirty-nine people wrongfully convicted in Dallas County have been freed from Texas prisons since the turn of the century, and while DNA exonerations grab more headlines these days, 24 of them were set up in drug cases by a mendacious informant and allegedly corrupt police officers using fake drugs.

In all, eight Dallas police officers allegedly falsified field tests to say that gypsum powder tested positive for drugs. Only two of those officers so far have been held criminally liable - this week the Court of Criminal Appeals upheld Mark Delapaz's five-year prison sentence on the first of three pending charges. (The CCA is still considering two petitions by the state on appeal that a lower court overturned.) Delapaz's partner who ratted him out last year received a two-year, probated sentence. Meanwhile, the fired supervisor of the rogue DPD narcotics squad may well get his job back.

This was the case, along with the incident in Hearne where an informant wrongfully accused a bunch of people, that really opened my eyes to the potential for abuse when lying snitches collaborate with lazy or corrupt cops, and made me begin thinking about possible oversight solutions.

For more background on the sordid tale in Dallas, see this interactive website chock-full of information put together awhile back by the Dallas Morning News.

What is money laundering? SCOTUS to rule whether merely concealing cash is the same as laundering it

A Texas case before the US Supreme Court last week, Cuellar v. US, in which SCOTUS will determine what activities the government must prove to charge someone with "money laundering," had its oral arguments this week before the Wise 9. The feds would like the term to be broadly interpreted to include merely concealing money, but some of the Justices weren't so sure. Reported DRCNet:
Cuellar was ... convicted of money laundering, but appealed, arguing that the simple act of concealing money did not constitute money laundering under the 1986 federal money laundering law. Under that law, it is a crime to take the profits from "some form of unlawful activity" out of the country while hiding or disguising its nature, location, source, ownership, or control. The question the court must decide is whether merely hiding the money is sufficient to support a money laundering conviction.

While the Justice Department argued that concealing money as part of a plan to illegally take it out of the country indeed constitutes money laundering under the 1986 law, several justices suggested that it was simply going too far.

"I don't know why they call this statute 'Laundering of Monetary Instruments,'" Justice Stephen Breyer commented, wondering aloud if it would make it a crime to walk across the border with a few dollars hidden in a shoe. "Why didn't they call it 'shoe hiding'?"

"On the government's theory, anyone who transports hidden money to get it out of the country, who drives the car, just the driver, is a money launderer," noted Justice Ruth Bader Ginsberg.

"No matter how you see it, this was precisely the conduct that Congress was getting at," assistant solicitor general Lisha Schertler told the court.

But Cuellar's attorney, Jerry Beard, told the court it should interpret the law to mean something more than merely hiding cash. "The statute does not criminalize concealing money's existence," Beard said. Instead, he argued, it requires that someone must seek to minimize the criminal nature of the funds. While Cuellar "may have in fact concealed money itself, he did not conceal the 'nature, source, location, ownership or control' of the unlawful proceeds," Beard argued.

Chief Justice John Roberts Jr. challenged Beard on whether Cuellar was attempting to conceal the money, but later seemed to be equally skeptical of the government's position. When Schertler suggested that putting money in a suitcase in the trunk of car could be evidence of a "design to conceal," Roberts retorted: "When I use a suitcase, I'm using it to carry my clothes, not to conceal them."

Justice John Paul Stevens added that the government's broad position seemed to make the whole concept of money laundering irrelevant. "Is this just a total wild goose chase?" he asked.

The federal money laundering statute, most often used against presumed drug traffickers, carries a maximum 20 year sentence and fines of up to $500,000. Nearly a thousand people were convicted under the statute in 2006. But if Monday's oral arguments are any guide, the Justice Department may soon have to actually prove money laundering to gain a money laundering conviction, not just that someone was hiding cash.
Chief Justice Roberts' retort to the state that his suitcase is for carrying his clothes, not concealing them, calls into question the whole tactic of trolling the highways looking for drug money couriers. If the driver exercises their right to remain silent, what evidence do you really have that hidden cash came from drugs?

Before Texas' Byrne-grant funded drug task forces were shut down, one of the bones of contention between the task forces and the Department of Public Safety was that DPS wanted officers to work roughly 50% of their time on either side of the road. You see, drugs run north, while money and guns run south, so the task forces preferred to only work the southbound lanes of the highway, hoping to maximize the benefit from any forfeiture of money they found, like in Mr. Cuellar's case.

The case before SCOTUS shows some police and prosecutors may be pushing the bounds of propriety, pursuing forfeiture cases when there's no discernible evidence the money is related to drug trafficking. Whatever SCOTUS does won't finally solve this complex problem, which in my opinion could be ripe for a legislative fix after SCOTUS rules on Cuellar.

The easiest solution could be only allowing asset forfeiture in cases where the defendant is finally convicted of a related crime. Until then, they would remain shielded by the presumption of innocence that protects us all. Asset forfeiture cases are civil proceedings, and not infrequently funds are seized even when prosecutors don't have enough evidence to convict the driver. Why not link the proceedings?

It doesn't seem unreasonable to require prosecutors to prove someone committed a crime before allowing the state to seize their money, does it?

Heads vs. Feds on the South Plains: Is it time to seriously debate legalizing marijuana?

It's a debate that's happening in the heartland, but not on the campaign trail.

Lubbock locals filled the Allen theater at Texas Tech recently to hear a debate billed as "Heads vs. Feds," featuring an editor from High Times magazine, of all places, and an ex-DEA offical. The event was moderated by Tech law professor Arnold Loewy, who wrote about it in yesterday's Avalanche Journal. Loewy said that the gentleman from the DEA:
only discussed the harm that marijuana does. He did not discuss the harm that laws against marijuana cause.

Indeed, at one point, he recounted the tragic tale of a DEA agent killed in the line of duty by a mafia-affiliated drug pusher. He then used this story as an illustration of the harm that drugs do. This was a mischaracterization. Drugs did not cause the death of this agent. Laws against drugs caused his death. Government agents are not usually killed enforcing alcohol or tobacco regulations.

So, to my mind, in assessing whether we should decriminalize drugs, the question is whether the cost of drugs being criminal harms society more than the drugs themselves. In my judgment it does.

Let's look at some of the harm caused by the criminalization of drugs. A brief but incomplete catalogue includes the death of law enforcement officers, gang turf wars over drug territories, drug pushers trying to hook teenagers with "free samples" to ensure a continuing clientele, overcrowded prisons populated substantially with drug dealers and users, insufficient prison space for long-term sentences for violent offenders and a substantial increase in crime by users who have to turn to prostitution, robbery, and even murder to obtain money to afford drugs because of the inflated prices charged by criminals.

I believe these costs are worse than the cost of drugs being legal.
It's amazing to me that they could attract so many in Lubbock for that debate ("thousands of students" attended, the paper reported); that tells me folks are hungry for a more honest exchange on drug policy.

Recently US drug czar John Walters said Mexican officials told him marijuana sales are the backbone of drug cartel revenues, financing murders and gang wars south of the border in increasingly shocking numbers. Reported AP, "Walters made the comments following a meeting with Mexican officials who want the U.S. to prosecute marijuana cases more zealously to reduce the amount of cash gangs can spend on guns."

So at the end of the day, which is worse? Letting Coors and Budweiser take over pot distribution and regulating it like alcohol, or arming violent gangs with profits from a plant that many users would probably grow at home for free if you let them!

At the risk of being forever labeled a "legalizer," I agree with Prof. Loewy that for marijuana, the costs of legalization - arming violent, murderous gangs with high-powered weapons, groups who are already training and arming teenage assassins on the US side of the border - far outweigh any benefits from current marijuana policies. For harder drugs the arguments are stronger for prohibition (though from an economist's perspective, still debatable), and less likely to gain a consensus. I'm a big fan of the harm reduction approach in Vancouver that I've written about before, and think that on harder drugs that's the direction we need to head first. But clearly what we're doing now isn't working, and we can't afford to just expand funding for the same failed strategies.

I don't believe we can arrest our way out of America's drug problem, especially for pot. If the drug czar is correct that marijuana is the backbone of drug cartel profits and directly financing the expansion of their armory, at what point does the debate in Lubbock need to expand to the state and national stage? Will we wait until Mexican/Colombian-style violence engulfs Laredo, or El Paso? San Antonio? Dallas? At what point, I wonder, will this country ever take the obvious step of just turning off the marijuana money spigot?

RELATED: To any economist, all these problems were obvious years ago (which is why the late Milton Friedman and William F. Buckley supported legalizing pot). As evidence, here's an oldie but a goodie, a half-hour talk by Harvard economist Jeff Miron, one of Friedman's economist collaborators. The speech is from 2000, but if he'd made the same presentation this week in Lubbock, it would have been utterly current. Take a half hour to give it a listen, perhaps over the weekend, to hear Miron expertly dissect the economics of prohibition. Via Greg Mankiw:

Thursday, February 28, 2008

Rick Reed top choice in Travis County DA's race

As primary day approaches, I wanted to tell readers in Austin and Travis County - especially since several people have asked me, including three today! - that I'm voting for Rick Reed to replace Ronnie Earle as the Travis County District Attorney. (I meant to post this last weekend, but came down ill; I apologize to Reed for my tardiness.) If you haven't seen it, here's his TV spot, or you can watch a candidate forum online.

There are four candidates in the Democratic primary for Travis DA, and the winner will get the job since there's no Republican candidate. Of the four, to me, the choice came quickly down to Reed and Rosemary Lehmberg, Earle's long-time first assistant.

Odds are, the race is really for second, to see who winds up going head to head against Rosemary in the runoff. She's got a big TV buy running and the endorsement of the incumbent, with whom locals including this writer have been fairly happy over the years. After all, Austin has the lowest crime rate of any big city in Texas, and you have to give the DA at least some credit for that, not to mention his chief of operations, which is essentially Lehmberg's job.

The problem to me is that by electing Lehmberg, voters would be sending a message that endorses the status quo. I think we can do better than we're doing, but she's been calling the shots on a day to day basis as long as I've been aware of local criminal justice politics.

I respect Rosemary a lot, and she's a terrific candidate; I'll be proud to have her as DA if she wins. But there are things Travis County is not doing well on her watch. Black Austinites are incarcerated for drug crimes at 31 times the rate of whites, though drug use is roughly the same among the two groups. Ronnie Earle and his first assistant, charged to "seek justice," shouldn't need a study from D.C. to learn that Dallas has a 9-1 ratio, by comparison, or that in Denton County it's 3-1. That's an embarrassing statistic, and I think it's a result of choices by police and prosecutors, not a real representation of crime trends.

Blacks are imprisoned disproportionately for drugs everywhere, but there's no good reason it should be three times as bad in Austin as in Dallas. Among the candidates, only Reed had a partial solution: Eliminating "consent searches" for Class C misdemeanors, an idea I've long supported.

Similarly, Travis County has the highest percentage of low-level pretrial detainees of any large Texas county, but the jail is overstuffed. That can only be the fault of the prosecutors and judges handling the cases, another reason I hesitate to endorse the status quo. While all four candidates say they're committed to pretrial diversion, it's fair to say that Rosemary has been in charge for a while, and could have done a lot more than she has before now.

Reed wants to institute an "open file" policy, allowing defendants and their counsel full access to prosecution files, even putting the information password-protected online, following the model in Tarrant County - to let both prosecutors and defense attorneys access it paper free with less hassle. That's been needed for years, and other counties have done it already: I'd like for that change to be made.

Finally, Reed's most prominent stance has been against the death penalty; he's said that if elected he won't implement it as DA, either in ongoing cases (Travis has five people on death row) or in new murders. I had a chance to talk to Reed face to face about this, and he said that he might believe in the death penalty theoretically, but because we know sometimes Travis prosecutors make mistakes in extremely serious cases, and just as importantly, because it diverts so many dollars and office resources from pretrial diversion, drug courts, and other prosecutorial strategies the community supports, he decided to simply oppose capital punishment altogether and let the chips fall where they may.

I basically agree with that stance; as I've written in the past: "It's not that I don't think there are bad folks out there who 'need killin', I just don't trust the government's ability to distinguish between them and the rest of us."

A commenter earlier declared that Reed's death penalty stance might make him a "one-term wonder." I don't know why that would be true if he did his job well, but even if it is, the switch to an open file policy likely couldn't and wouldn't be reversed. That alone to me would be worth the vote.

Otherwise, Reed is perfectly competent to run the agency, which IMO is the minimum threshold for the job; I certainly hope that if he doesn't get it, Rosemary does. Of the other two candidates, Gary Cobb still seemed a little green to me in his answers to questions at two candidate forums; I'd like to see him try again with just a little more seasoning.

Mindy Montford is the only natural politician in the group (her father's a former state senator, her ex-husband a city councilmember), while the other three are "lawyer's lawyers." But for DA, I WANT a lawyer's lawyer. The political skills she brings to the table are important, but she might be running for the wrong job. (I'd have voted for her, as I plan to for Brian Thompson, against Dawnna Dukes, for example - though I don't know all her positions, she'd probably be better in the Lege than running the DA's office.)

Of these four candidates, in this time and place, Reed is the right choice and I'm voting for him. I said earlier Austin is lucky (particularly by comparison with Harris County) to have such a fine crop of DA candidates. It's true, but Rick Reed is the best choice of the lot.

TYC conservator closes Sheffield Boot Camp

For once TYC employees heard about a facility closure straight from the horse's mouth instead of reading that they lost their jobs in the newspaper. Here's an excerpt from Richard Nedelkoff's email to TYC employees notifying them of the decision to close the Sheffield Unit in West Texas:

I want to let you know that today, I was in Sheffield to announce the closure of the Sheffield Boot Camp. When I first came to TYC, I told you that I would have to make a number of difficult decisions regarding personnel and the proper utilization of our facilities. This is one of those decisions.

We currently have 17 youth at the Sheffield facility, which has a budgeted capacity of 80. For the past year, we have been losing our JCO staff and have been continuously adjusting the youth population to ensure ratios are being met. All of the current Sheffield youth will be moved to the appropriate facilities by the end of March.

We also have approximately 60 current employees at Sheffield. All will be offered the opportunity to make a direct transfer to the West Texas State School or any other TYC facility. This will be a tough time for them and we will do everything we can to ensure a smooth transition for these valued employees and their families. We will be working with the Texas Workforce Commission to provide assistance to those employees who choose not to remain with TYC.

On a brighter note, I want you all to know that our plans for the biennium include keeping West Texas State School and Victory Field operating. We will need the capacity these facilities offer as we begin major renovations to our open bay dorms throughout the system. I felt it important to let all staff know as soon as possible that we will retain these two facilities and that we put to rest any remaining speculation.

I appreciate that he delivered the news out in West Texas in person before notifying other TYC employees or the press, even though everyone knew it was coming. (Legislators joked at last week's hearing that Sheffield wasn't long for this world, though Nedelkoff steadfastly refused to make predictions, or "safety ratings," about particular units.) If earlier TYC conservators had kept their employees in the loop about decisions that way, I doubt seriously Grits would have become what one reporter recently called the "unofficial bulletin board" for TYC employees. This closure was handled with class by comparison to the closure of the private facility in Coke County.

We're Biggest! But Are We Overcompensating?

Biggest heads and biggest hearts, biggest various body parts,
Let's sing another stupid Texas song!

- The Austin Lounge Lizards "Stupid Texas Song"
Doc Berman brings word that Texas now officially has the largest state prison population in the country, according to the Pew Charitable Trusts, after California's inmate total declined last year. That's pretty impressive when you consider that Texas has just over 23 million residents, while more than 36 million people live in California. But we imprison more people than they do!

Nationwide, one in 99 adults are incarcerated, reports Pew (see their report), with Texas leading the way. Even more astonishing, one in nine black men age 20-34 are incarcerated nationwide, according to a chart on page 6.

Interestingly, despite our state topping the incarceration charts, Pew cited legislative initiatives by Sen. John Whitmire and Rep. Jerry Madden in 2007 as a positive example of changing policies to manage booming corrections populations without reducing public safety (p. 17-18):
Between 1985 and 2005, the Texas prison population jumped 300 percent, forcing a vast expansion of prison capacity. After investing $2.3 billion to add 108,000 beds, Texas didn’t get much of a breather. Within less than a decade, its prisons were teeming and experts forecast the arrival of another 14,000-17,000 inmates within five years.

In 2007, legislators from both parties decided it was time for a course change. Rather than spend $523 million on more prison cells, they authorized a virtual makeover of the correctional system.

Anchoring their approach was a dramatic expansion of drug treatment and diversion beds, many of them in secure facilities. Legislators also approved broad changes in parole practices and expanded drug courts. In all, the reforms are expected to save Texas $210 million over the next two years—plus an additional $233 million if the recidivism rate drops and the state can avoid contingency plans to build three new prisons.

“It’s always been safer politically to build the next prison, rather than stop and see whether that’s really the smartest thing to do,” said state Sen. John Whitmire of Houston, chairman of the senate’s criminal justice committee. “But we’re at a point where I don’t think we can afford to do that anymore.”

At the start of 2008, the future looked promising in the Lone Star state. For the next five years, new projections by the Legislative Budget Board show, the prison trend is a flat line.
In addition to having the largest prison population in the country, more than half a million additional Texans are on probation or parole, meaning about one in 20 adult Texans currently is under either institutional or community supervision of the criminal justice system.

MORE: See MSM coverage from the Houston Chronicle, the Washington Post and the New York Times. Pete at Drug War Rants pulls some big-picture lowlights from the report, Simple Justice examines the counterspin from incarceration supporters, and Rev. Alan Bean at the Friends of Justice blog adds his two cents.

Good stuff from Texas legal blogs

I was down with the flu over the weekend and the early part of the week, and am just beginning to get back on my feet. Thankfully the rest of the blogosphere chugs right along, even when Grits' posting is slow. Here are a few interesting tidbits I noticed this week from around Texas' legal blogosphere:

First, let me point to a new (to me) blog worthy of readers' attention: The Fifth Circuit Blog, covering, just as the title says, the federal 5th Circuit Court of Appeals based in New Orleans, of which Texas is a part.

Bill Baumbach at the Collin County Oberver is following a story I meant to write about before I went down last weekend. See his excellent item - Judge's ties to Prometa questioned - and related coverage.

Jamie Spencer at The Austin Criminal Defense Lawyer picked up on my beef with Doug Berman's advocacy of the death penalty as an "effective bargaining tool," and adds his own perspective: I’m pretty sure the Spanish Inquisition got high marks for efficiency when it came to extracting confessions." :)

Speaking of inquisitions, Tom Kirkendall wonders if we'll see justice for NBC for sponsoring Dateline's Perverted Justice programs in a lawsuit by the sister of a deceased ADA in East Texas. Writes the veteran attorney, "I don't know about you, but I hope she rings the bell on NBC."

At Prevention not Punishment, see "Stop Criminalizing the Mentally Ill," and "The role of medications (or lack thereof) in recent acts of violence."

Over in Brazos County at The Defense Perspective, I highly recommend the post "Experiencing Forgiveness."

Meanwhile, Robert Guest at I Was the State has produced several noteworthy items recently:
Finally, South Texas Chisme finds glitches with the virtual border fence, and lets us know the corrupt police chief in Laredo has been sentenced to three years in the federal pen.

The new sentencing data are here!

To borrow from Steve Martin, "The new sentencing data are here! The new sentencing data are here!

OK, so perhaps readers won't be scurrying to search for their name like Martin in "The Jerk," eager to see it in print because it means "I'm somebody now," but Doc Berman brings word that the FY 2006 federal sentencing data are now online, and for data geeks it provides some interesting annual fodder:
2007 Annual Report and Sourcebook: The 2007 Annual Report presents an overview of major Commission activities and accomplishments for fiscal year 2006. See the Commission's 2007 Sourcebook of Federal Sentencing Statistics for descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data.
You've heard the term, "Don't make a federal case out of it"? Well, 72,865 times in 2006, somebody did (that's the total number of federal sentences issued nationwide), and a surprisingly large number of those cases, 18.4% of the national total, came from Texas: (Click on links for fact sheets for each district)
Eastern District: 979 convictions, 1.3% of national total
Northern District: 1,052, 1.4%
Southern District: 5,582, 7.7%
Western District: 5,779, 7.9%

Total: 13,392 convictions, 18.4% of national total
Clearly the numbers in Texas' Southern and Western Districts are driven by immigration cases, but the volume is stunning. Both districts alone processed more cases last year than most entire federal circuits - indeed both districts alone processed more cases than every other Circuit except the Ninth! (Texas is in the 5th Circuit, which is based in New Orleans and includes Texas, Louisiana and Mississippi.)

Nationally, immigration accounted for 24.3% of federal cases (though more in TX), and drugs accounted for 34.4%, followed by firearms charges at a distant third 11.6%.

Most federal cases never get to trial, but are plea bargained away. One observes wide disparities in the rate of plea bargains in cases among Texas districts, which could be partially but not entirely explained by immigration cases. Here are the portion of federal cases in each district that went to trial last year:
Eastern 2.8% (27 cases)
Northern 4.8% (51 cases)
Southern 1.9% (106 cases)
Western 1.8% (105 cases)
That's a microscopic percentage of cases going to trial, isn't it? If in your mind's eye you believe the job of a lawyer or judge is to "try cases," these statistics should dissuade you of that misconception: The modern justice system's function is to plea cases, not try them.

Considering the high rate of plea bargains, the government exerts a great deal of control over sentencing. So when you hear complaints that federal prisons are running out of room or that we need more prisons for immigration detention, remember a surprising amount of new incarceration being generated through federal cases, particularly in immigration cases, appears to be volitional - i.e., something that's under control of the judges within the bounds of current law. According to a table titled, "Imprisonment rates for offenders eligible for non-prison sentences," in 2007 90% of immigration cases that could have received a non-prison sentence instead resulted in prison sentences, more than twice the rate of any other category.

There are lots of interesting data here for those concerned with the federal courts - these tidbits are just a teaser.

See similar (but not as comprehensive) data on Texas state courts here.

Wednesday, February 27, 2008

Exonerated man faces difficulties adjusting to free world life

Charles Chatman was released last month from a Texas prison after doing 27 years for a crime he did not commit. But the Carrollton Leader ("Wrongfully convicted prisoner relocates to Carrollton," Feb. 26) reports that things haven't been so easy once he got out, or as he put it, since he was "dumped back into society":
After Chatman was free, he felt lost, Chatman said. He’d spent more than half his life in prison. He grew accustomed to the hostile guards and didn’t know life outside the cell, he said.

Chatman’s family carried him through most of the tough times, he said. After his release, Chatman stayed with his 43-year-old nephew Larry — the relative who came to see him once a month throughout most of his time in prison. On Jan. 18, Chatman moved into his Carrollton apartment.

Still, the rehabilitation process has been slow, Chatman said.

“When you get out like I did, we are just virtually dumped back into society,” he said.

He cited halfway houses, job opportunities and transportation available for prisoners out on parole. But, none of those options were available to Chatman, he said.

“Really, I am not a parolee,” he said. “Had it not been for the family support I had, I’d probably be like some of those other guys. Some end right back up in the penitentiary.”

Chatman has been offered $50,000 per year for the 27 years he was imprisoned, as compensation for his incorrect verdict. The money comes with a promise not to sue Dallas County. However, he is “leaning toward” filing a lawsuit instead, he said.

“I’m trying to absolve all this,” he said. “I’m angry at the judicial system.”
Jeff Blackburn from the Innocence Project of Texas expressed the same thing to me when I was in Dallas last fall for their benefit, that more than a few of the dozens of inmates exonerated by DNA evidence had spent more than half their lives in prison and weren't fully prepared to re-enter the free world without a great deal of personalized support.

Think about it: If Chatman went to prison in 1980, Jimmy Carter was president and there's a decent chance the last stereo he owned was an 8-track. Said the Leader, "Chatman forgets that his Razr cell phone is attached to his belt. And to answer a call, he often hangs up while trying to press the 'talk' button. He uses his computer to play chess but is afraid to venture into cyberspace."

Keep in mind, folks, the reason the Carrollton Leader cares about this story is because Chatman was innocent. But 70,000 inmates per year leave Texas prisons, many of them after completing long sentences that leave them facing all the same obstacles as Chatman to successful rehabilitation: Worse, the felony on their record means they can't find housing and are barred from many jobs.

These days because of rapid technological advances, just five years spent out of the work force, much less 15, 25 or more, can make a person's work skills nearly irrevocably out of date. There's little programming left in the Texas prison system to train inmates with skills they'll need when they get back to the free world. So what happens to them then? If the innocent have trouble adjusting when they leave prison, how much more difficult are things for someone who's on parole for something they did?

Chatman should be financially okay: State law mandates he be compensated $50K per year for each year incarcerated (that'd be around $1.3 million before Uncle Sam's bite), and it sounds like he may decide to sue for even more. (Grits has discussed before the difficulties of assigning a monetary value to a wrongful conviction.) But whatever the monetary settlement it will take years for the emotional scars to heal, if they ever can: Nobody can give you back ages 20-47; once they've been taken from you, they're gone.

False confessions "a systematic feature of American criminal justice"

Reacting to this item about the fate of Christopher Ochoa and Richard Danziger, two Austin men wrongfully convicted because Ochoa confessed, even though innocent, in the face of intense police questioning, Anne Reed at the blog Deliberations points to a new, relevant book shedding further light on false confessions titled Police Interrogation And American Justice, by University of San Francisco law professor Richard Leo, soon to be published by Harvard University Press. Writes Leo:
The problem of false confession is not limited to a small number of cases. These studies reveal that false confessions are therefore not an anomaly but a systematic feature of American criminal justice, despite procedural safeguards such as Miranda rights and a constitutional prohibition against legally coercive interrogation techniques. . . . Unless police change their procedures for selecting suspects and their interrogation practices, false confessions will continue to occur regularly.
Reed suggests hopefully, "There are briefs to be written out of this book. If enough of them win, the reforms Leo proposes in his final chapter might begin to take hold." (If any attorney reading this happens to write and file such a brief, please be sure to forward me a copy.) I agree this is an area ripe for reform, if not in the courtroom then in the legislative arena.

Tuesday, February 26, 2008

Newsweek alleges racial slurs used in Harris DA's office

Not content with allowing Houstonians to wallow in their District Attorney's disgrace as they prepare to select his replacement, a national newsmagazine today published a feature critical of defrocked Harris County DA Chuck Rosenthal, providing a few juicy tidbits that I'd not seen previously published. Reported Newsweek:

There have long been complaints that the Harris County DA's office discriminates. Former prosecutors have said that other lawyers in the office referred to Hurricane Katrina evacuees as "NFLs," or "N------ From Louisiana." In 2003 prosecutor Mike Trent sent an officewide message congratulating his colleagues on winning a case despite the presence of several "Canadians" on the jury. (He later said he was unaware that "Canadian" is sometimes used as a racial slur for a black person.) Jolanda Jones, a defense attorney and Houston city council member, has complained for years that minorities are unfairly stricken from juries and that punishment is administered more harshly for blacks. "There is absolutely an undercurrent of racism," she says. "The story is bigger than the district attorney's office. It's systemic. They're racist and classist. If you're poor or a minority, there is no justice."

But Joe Owmby, chief of the DA's integrity division and the highest-ranking black prosecutor in Harris County, says he's never felt as if he works in a racist atmosphere-and he defends Rosenthal for encouraging minority hiring. Other black former prosecutors say they never heard racist comments either.

I might expect this from some rural DA's office in East Texas, but if the allegations are true, it's downright shameful for it to happen at the state's largest District Attorney's office. See the full story.

Byrne task forces account for huge portion of drug arrests in other states

In Oregon, I was astonished to read, 85% of drug arrests are made by regional narcotics task forces funded by the federal Byrne grant program, an overwhelming proportion. That statistic came out in the debate over the Bush Administration's proposal to slash the fund by 2/3.

But guess what? The sky didn't fall when Texas closed its task forces, which spent most of their time running undercover stings in the same minority neighborhoods over and over scrounging for low-level users. If the budget cuts hold, I predict other states will discover, as we did, that Byrne task forces weren't making them all that much safer.

Liberals try scare tactics touting "impending crime wave"

Washington Post pundit David Broder says crime may be lurking as an issue more powerful with the electorate than foreign affairs, discussing a national survey by a liberal think tank called Third Way. I'd not heard of the organization but I found a copy of the poll (pdf) online. They also have published an accompanying report with the scare-mongering title, "The Impending Crime Wave." Writes Broder:
when the polling firm Cooper & Secrest Associates asked 1,139 Americans in December which threat they took most seriously, 69 percent chose violent crime and only 19 percent named terrorist attack.

The survey was part of a striking report released yesterday by Third Way, a liberal think tank, and several governors, warning that the crime issue, which has slipped off the political agenda since its heyday in the 1970s and 1980s, is about to return.

"Four new and dangerous sociological trends are converging to disturb the peace and are threatening a crisis of crime, if not addressed," the report says.

The trends it cites include a huge increase in the number of criminals due to leave prison in the next five years, the infiltration of criminal gangs into the surge of illegal immigrants, the bulge in the number of young people entering the highest-crime years and the technology revolution that has made the Internet a place of danger for unsupervised youths.

The underlying numbers are startling. Twenty years ago, the country's total prison population was 700,000. Next year alone, that many will be released from prison, and, if past trends hold, nearly two-thirds will be rearrested.

In the next five years, the number of young adults and teenagers will have increased by 1 million, and, if past patterns hold, that will boost the number of crimes by 2.5 million.

Here's how Third Way's pollster broke out the big-picture ideological divisions on crime:
Our research identified three distinct groups of Americans on the crime issue. The most prominent was the 55% of Americans whom we call “Solve-the-Problem” voters. They are non-ideological pragmatists who are open to a very active government role in crime prevention and intervention if properly designed and framed to emphasize personal responsibility. These voters are evenly divided between Democrats and Republicans and are dispersed evenly throughout the country.

The remaining two groups are far more ideological. “Throw-the-Book” voters comprise a small minority of the population and oppose any efforts at changing criminal behavior beyond enforcement and prison. They are overwhelmingly conservative. “Read-a-Book” voters believe wholeheartedly in rehabilitation and are far more likely to be liberal than the general population.
The states, as the traditional laboratories of democracy, are predictably doing a better job than the federal government at reacting to overincarceration and crime, says Broder, though to read Third Way's report you'd think only the federal government can fight local crime. That said, the report and Broder's discussion, while containing some good ideas, reinforced to me why bad crime policy in general is a bipartisan affair, not just the domain of liberals or conservatives. Let's walk through the four crime producing trends they cite.

1. An increasing number of criminals leaving prison in the next five years. In Texas, this is already happening: 70,000 inmates leave prison and go onto parole every single year. This argues for three things, in my view: Beefed up parole supervision with reduced caseloads, expanded re-entry programming, particularly for housing, employment and transportation, and passage of the federal Second Chance Act and related state-level legislation to expand resources and programming for prisoner re-entry. To fail to do that when the demographers can tell us in advance what's coming borders on irresponsible, as does the failure to approve the Second Chance Act, in my view, several years ago now when it was equally clear it was needed.

2. The "infiltration of criminal gangs into the surge of illegal immigrants." Anyone who reads this blog regularly knows this is one of my personal bailiwicks - I think multinational drug cartels are a much bigger threat to Texas' security than most people realize, but the impetus to "crack down" on illegal immigrants whose sole crime is crossing the border to seek a job has clouded the activities of smugglers amidst literally millions of hard working immigrants. So the solution here, to me, is to expand immigration quotas and legalize immigrant workers in the United States already, so the criminal smuggling gangs will become more isolated and easier to target.

3. The "bulge in the number of young people entering the highest-crime years." This in my view is the biggest determining factor of crime beyond any single other element you can name (there are many variables, but I consider this one of a handful of truly primary causes). It is as inevitable as the sunrise. What's not inevitable is how we deal with it. Zero tolerance fills up prisons with people who don't need to be there, and a felony record makes it less likely they'll ever grow up and become productive citizens. So separating out the truly dangerous offenders from the type of "criminal" whose errors are more juvenile than malicious makes a lot of sense, and Third Way had a long list of interesting sounding juvie programs that are worth consideration.

4. Their last major "cause" of crime I consider largely bogus: "the technology revolution that has made the Internet a place of danger for unsupervised youths." This is empty scare rhetoric. Your kids were always in danger from the small percentage of predators in the population, and that number has not risen substantially because of the Internet, it only has offered a new medium that competes with driving around town looking for the lonely kid at the corner teen hangout. I believe the Internet poses new criminal opportunities and investigative challenges, but I don't believe that in of itself it causes crime to increase except to the extent it causes commerce (and hence the criminal proportion of commerce) to expand generally.

There's a lot of useful information here, but there's a lot missing, both from Third Way's analysis and from Broder's.

The biggest shortcoming in the report is its failure to focus on the need to improve the mental health services to divert low-level mentally ill offenders from the justice system. That would help a lot more than any amount of resources thrown at Internet crime, without a doubt. As of 2007, 30% of Texas prison inmates were former clients of the state's indigent mental health system. That's a huge factor that's only mentioned in passing in their analysis, but you really can't fix the system or even seriously talk about doing so without dealing with America's mental health crisis.

Similarly, the report advocates the continued criminalization of substance abuse, and at several points implies that arresting more drug users and low-level dealers somehow improves safety, decrying for example cuts to the Byrne grant program by the Bush administration that I personally support.

And on immigration, while they've identified the problem accurately, the solutions proposed aren't "progressive" by my standards at all: They want to "shut down the border" and launch a prison building plan to "Create enough beds so that all priority illegal immigrants who are apprehended can be punished or deported." Do we really need a prison building binge for immigration? And with progressives like those, what do we need right wingers for?

I've long believed that crime and punishment is a bipartisan issue, or rather a non-partisan one. Big government liberals like prisons as much as tuff on crime conservatives do, just for different reasons. IMO we don't need a "third way" on crime, we need a second.

UPDATE: A commenter over at Sentencing Law & Policy lets us know that Third Way is a Clintonista think tank associated with the Democratic Leadership Conference.

Sunday, February 24, 2008

Lubbock discontinues red light cameras after accidents increase 52% at intersections with cameras

I've not been closely tracking the issue of red light cameras since I left the ACLU, but I was interested to see this comment over at ConchoInfo:
Lubbock is giving us some interesting insights on how many cities view red light cameras. They recently received a report on the first 6 months of operation. The results are so bad, the committee charged with overseeing the program is recommending it be discontinued. It is apparent that the cameras are not really improving public safety. Accidents at intersections with cameras are up by 52% while accidents at other intersections are down by 2.7%. The number of injuries is down, but one commenter on the study said that could be due to a number of factors, including the number of passengers in each vehicle. Right out of the gate, their program seems to be failing, and deserves to be discontinued.
See prior Grits coverage of red light cameras, and more recent coverage from BlogHouston and Off the Kuff.

Would you confess to a crime you didn't commit to save your life?

Christopher Ochoa did in 1988 in Austin, and accused an innocent friend of being an accomplice after long bouts of questioning and threats of the death penalty. (The man who he accused of being an accomplice, Richard Danziger, was tragically beaten in prison to the point that he suffered brain damage and today is in his family's guardianship.)

The Dallas News today had an excellent feature interviewing Ochoa, now out of prison and a criminal defense attorney practicing in Wisconsin.

Doc Berman over at the Sentencing Law and Policy blogs says the death penalty is an "effective plea bargaining tool," but to me here's an example of what he means in practice. If you threaten to kill somebody, they may admit to anything, but I'm not sure that's so "effective" as it just makes wrongful confessions more likely.

Wall Street thinks economic downturn will boost private prison fortunes

Sometimes it may seem like I'm picking on this or that county when they pursue jail overcrowding solutions that aren't in the taxpayers interests, but the truth is these issues aren't really local or even statewide, but are national in scope. After he left a note in the comments, I put in a call to Grayson County Judge Drue Bynum's office, though I haven't heard back yet. He's the fellow proposing the privatization plan that he says will let Grayson County build a new jail with no taxpayer investment

In the meantime, though, I noticed this item over at Think Outside the Cage pointing to a Reuters story that tells us Wall Street types are hoping more local officials like Judge Bynum decide it's cheaper to subsidize a private company to do the government's business than to do it themselves. Reports Reuters:
Government belt-tightening could be a boon for a range of mid- and small-cap names whose share prices have in many cases fallen as far as more cyclical companies that really do suffer in a downturn. And, analysts say, that could present some stock market opportunities.

The housing slump has hurt public budgets, as depressed property values and lowered homeowners' equity cut proceeds from real estate and sales taxes.

In 2009, 25 states are facing shortfalls, according to the Center on Budget and Policy Priorities. That pain trickles down to local governments, which increasingly look to privatize services they traditionally have performed.

By outsourcing a prison, states can save as much as a quarter of its cost, Avondale Partners analyst Kevin Campbell said, which is why private prison companies boosted their market share to 7.2 percent in 2006 from 6.5 percent in 2001-2003.

States might begin a new wave of prison privatization sooner than in the 2001 recession because the United States is still suffering from prison overcrowding as a result of that last downturn, Campbell said.
So at a national level, private prison companies and Wall Street investment analysts view the housing market downturn and pressure on state and local government as a marketing opportunity. Great! If that's true we'll see even more local officials who want to subsidize private companies instead of just pay for basic taxpayer services.

I don't believe for a second that private prisons can operate at 25% less cost than government and turn a profit, particularly for county jails where they must still meet requirements by the Texas Commission on Jail Standards like everybody else. That's a marketing pitch, not an assessment of actual contract costs (or else a reflection of cherrypicking the least dangerous, least costly inmates). I'm not opposed to private contracting as a crisis management option, but it makes no sense to put your county in a position where a constitutionally required service - the local county jail - is owned and controlled by a private business.

The private prison industry spent more than a million dollars lobbying Texas officials in 2007, reports Bob Libal over at Texas Prison Bidness. Expect that number to increase if the economy tanks, if it's true that nationally these companies view such indicators as a marketing opportunity.

Counties cannot contract away liability for the jail nor its expenses, the can only contract away control. Private prisons low-ball up-front bids and underpay employees to cut costs, but that only goes so far. After the initial investments are made, when the contract comes up for renewal, the contracting agency is pretty much stuck with the decision, having put all its eggs in the private company's basket. And if anybody sues, the taxpayers are still the ultimate deep pockets who are accountable.

When counties have enough money to function properly, the economics of private jails make little sense. It's when times are hard, apparently, that the idea of getting a new jail for free starts to sound attractive, but if there's no such thing as a free lunch, there's damn sure no such thing as a free jail.

Friday, February 22, 2008

Nuther lawsuit vs. TYC filed alleging staff on youth brutality at Evins unit

As a legislative oversight committee grilled TYC administrators in Austin this afternoon, another civil rights suit was filed by a former inmate against the Evins unit in the Rio Grande Valley, which was already the subject of federal litigation and a recent Agreed Order. According to the Monitor ("Teen accuses Evins staff of abuse," Feb. 22):
A former teenage resident claims a staff member at the troubled detention center threw him to the ground and violently attacked him after a raucous group therapy session in July 2007.

The incident left 15-year-old Robert Romero Jr. with a dislocated hip, fractured pelvis and a ruptured artery in his thigh, according to a federal lawsuit filed this week against Evins and the Texas Youth Commission, which oversees the detention center.

“It takes quite a lot of make a grown man cry,” his father, Robert Romero Sr., said. “But after I saw my son, I broke down in tears.”
Though the boy turned out to be significantly injured, he sat in solitary confinement, undiagnosed, for a week before somebody helped him:
On July 17, the teen says a counselor accused him of disrupting a mandatory meeting where several inmates were present.

Romero, who claims he obeyed the staff member’s orders to settle down, was ordered out of the room.

The Evins employee then allegedly followed him out into a hallway, slammed him onto the ground and bent his legs into his back.

Romero “felt excruciating pain run through his leg accompanied by a loud popping noise,” the lawsuit states.

The incident left the teenager hospitalized and in need of continued medical care, said his mother, Graciela Garza Romero, who lives in Rockport outside of Corpus Christi. For several days afterward, Romero Jr. sat in separated security room with undiagnosed internal injuries.

“At the time, they kept telling me he was OK,” she said. “He wasn’t OK. He was sitting alone for a week with a fractured pelvis.”
This account seems to corroborate some of the recent allegations by the Ombudsman and others that TYC overuses solitary confinement and doesn't always attend to youths mental and physical health needs when they're locked up in isolation.

TYC still suffering backlog processing youth grievances

UPDATE: Here's the link to archived video from today's hearing.

Rep. Jerry Madden calculates that TYC receives 66 grievances from youth per day, or around 10,000 per year (the average daily inmate population is around 2,400). The oversight committee had a good discussion today about the Youth Rights division and backlogs in processing youth complaints.

Complaints of physical and sexual abuse are still not be responded to "immediately," administrators admitted candidly, but they're prioritized so that more serious complaints won't take 2-3 months, as commonly occurs with other complaints. Many incidents may not be resolved within a calendar year of being filed, the agency was told, by which time youth may no longer be in TYC custody.

Will Harrell said delays by Youth Rights in processing complaints are beginning to erode the credibility of them, the Ombudsman and other youth advocates with the youth themselves. Harrell mentioned he's heard numerous youth complaints that they've been intimidated by staff from filing complaints, that staff may threaten to file a 225 (a disciplinary notice) if a student files a complaint. Another staffer (I couldn't tell who) said that about half of complaints by youth are related to disciplinary actions.

After the agency's failure to timely respond to complaints of abuse in West Texas, which is the heart of the Pyote scandal, generated such a nightmare at TYC over the last year, it's a shame the agency still hasn't beefed up staff enough to work through backlogs in processing youth complaints. Those systems' improvement was the main goal of most of the legislation last year, but they're still not operating as quickly, it sounds like, as legislators hoped or intended.

Whitmire: "If you don't want to get sprayed, do what they tell you"

UPDATE: Here's the link to archived video from today's hearing.

Perhaps the most contentious moment so far from today's oversight hearing on the Texas Youth Commission involved the agency's contentious pepper spray policy, when Sen. Whitmire complained that critics of TYC's pepper spray use had "demagogued the issue to death," declaring that "the people who I listen to and I trust" tell him it was important to keep pepper spray in the "arsenal."

Asked his position on the topic, Conservator Richard Nedelkoff replied cautiously that in other states like California, "somebody" ... "like the federal government," would come in and tell the state they couldn't use OC spray, and said he wanted to look at what happened in those cases and what policies they implemented in response. Whitmire replied that he didn't care what they did in California (and by implication, what the federal government tells him).

I wonder if the Senator will care if the feds impose similar conditions under the new Agreed Order? His friend and recently deposed executive director Dimitria Pope didn't really care much for court orders, either.

Until then, as far as he's concerned, Whitmire said, "If you don't want to get sprayed, do what they tell you."

Alright, then! I'm guessing that won't turn out to be the final policy.

MORE: Emily Ramshaw at the Dallas News covers this aspect of the hearing, and attributes a stronger position to Mr. N opposing pepper spray than I took from his comments at the hearing today. Apparently agency spokesman Jim Hurley clarified after the hearing, which I couldn't attend (babysitting duties), that the policy published last fall in the Texas Register and which was awaiting final approval would not be enacted by the new conservator:

Mr. Nedelkoff "wants to use other measures, and much better training, to dramatically scale it back," said agency spokesman Jim Hurley, following a nearly four-hour hearing where lawmakers quizzed the conservator on everything from the qualification of TYC staff to whether certain youth lock-ups should be closed.

Pepper spray "is still in the arsenal. But the policy that was in place, he's pulling it back."

Dallas PD will use citations for B misdemeanors

After initially rejecting the idea, the Dallas Police Department has decided to use new discretion for police officers approved by the 80th Texas Legislature to give citations in lieu of arrest for certain low-level misdemeanors. Reported the Dallas News ("Dallas police program would allow tickets instead of jail for minor offenses," Feb. 22):

Police and prosecutors are working on a program that would allow the courts to handle misdemeanor citations under the new law, which took effect Sept. 1. But they don't yet have a timeline for its implementation.

"Our patrol officers want this," said Assistant Chief Ron Waldrop, commander of the criminal investigations bureau. "They see it as a valuable tool that will allow them to stay on their beat more."

Police officials expect the program to improve response times because officers could write citations rather than spend time at the jail booking an offender on a minor criminal violation. ...

How much impact the program will have is unknown because it remains to be seen how many officers will choose to issue a ticket rather than take an offender to jail. But last year, Dallas police made nearly 3,400 arrests for the offenses for which officers would gain the authority to issue citations, according to police statistics.

Dallas PD won't be using the authority for marijuana possession, or it would account for a much larger portion of arrests.

I was particularly interested to learn that some jurisdictions have been doing this for many years.

Even before the law took effect, some jurisdictions were issuing citations for certain low-level misdemeanor offenses.

"There wasn't any law that was being broken. They were just doing something that wasn't contemplated by the law," said Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association.

Palo Pinto County, whose population numbers about 27,000, was among those jurisdictions, said County Attorney Phil Garrett. He said that for at least 10 years he's allowed law officers to issue citations for Class A and B misdemeanor marijuana possession.

"It's not that big of a deal," said Mr. Garrett, who's been in office for 17 years. "The fact that that had to be codified just kind of amazes me."

I'm glad to see another major city beginning to use this new authority, which results in f
ewer low-level offenders in the jail, and more officers spending more time on the street, seems like a win-win all the way around.

RELATED: Nuts and bolts of citations for low-level misdemeanors explained by Travis County Sheriff's Office

Watch TYC oversight hearing this a.m.

For those hoping to listen in to the TYC oversight hearing this morning, it begins at 10 a.m. and you can listen in at this link. There will be no public testimony, and only conservator Richard Nedelkoff and Ombudsman Will Harrell have been invited to testify. Use the comments as an open thread to discuss the event.

UPDATE: Here's the link to archived video from today's hearing.

RELATED: See the Dallas News editorial titled, "Too afraid to speak," which brings the debate over TYC back to the question of abuse and intimidation of youth that launched the current scandal. An excerpt: "Imagine you are that teenager stuck in a hellhole existence, and no one on the outside really knows what's going on because you're afraid to say. Consider your hopelessness, crying yourself to sleep, trying to get through another day living in abject fear."

ALSO: I failed to link when it came out to Chicago Tribune reporter Howard Witt's update on the Paris girl whose case was paired with Shaquanda Cotton in coverage of TYC sentencing policies. This case took a fascinating turn. Originally, Witt's coverage portrayed Cotton as receiving harsher treatment from a local judge because of race. But protests by civil rights groups caused Cotton's release last spring, while her white counterpart violated probation, went to TYC, and wound up being sexually abused by a guard, who was indicted in December. She's now being released too; TYC initially had refused to take into account her status as a sexual assault victim in its release decision, Witt reported, but changed its mind earlier this month and let her go.

Thursday, February 21, 2008

Grayson County Judge pushing irresponsible jail building scheme

Grayson County Judge Drue Bynum has been promoting a bizarre solution to local jail overcrowding, trying to convince the public that the county can expand the jail without paying for it ("it's free, trust me") by partnering with a private contractor. He's even trying to get Grayson County College to give away land to a contractor to build the private facility. Reported the Sherman Herald-Democrat ("County judge approaches Grayson County College trustees about donating land for a new county jail," Feb. 21), Bynum:
wants to see the county go with a plan that involves private financing to keep the tax payers from having to pay to increase the size of the jail. Getting free land at the airport would help that happen, he said.

When trustees questioned why the county didn't use its own land at the airport, Bynum said the answer is simple. The land that the college owns doesn't sit as close to the runway as the county property does.

Building the jail on the county property, Bynum said, might (his emphasis) mean that some companies that might have otherwise looked at the airport would go somewhere else.

Bynum noted that the college has some land behind the Viticulture Building that would be a good place for the jail. He said 50 acres would be great for a jail built to accommodate up to 1,500 inmates.

Trustees asked why the county needed to build such a large jail when the county doesn't need that many beds. Bynum explained that a private company would have to build many more beds than Grayson County needs to be able to make a profit off the jail. He said the additional beds then would be offered to other entities at prices above what Grayson County would pay.

Trustees wanted to know if the county had considered just building to suit its needs and not worrying about the private funding. Bynum said all options have been considered, but he doesn't want to see tax payers foot the bill for the jail.
This is an unbelievably bad idea based on an economically flawed premise, that taxpayers won't "foot the bill for the jail."

Of course they will! For starters, he's asking the college to give some private company the land for free. But even more than that, for the company to pay its construction debt, the county must pay for its prisoners, which means it must pay the cost of housing the inmates (which it would have to pay anyway) PLUS the company's profits.

Whether the county or a private contractor operates the facility, it still must meet minimum standards set by the Texas Commission on Jail Standards, so it won't be any cheaper to operate (except to the extent that a private company pays its employees less than deputies make - a marginal benefit at best in the scheme of things that's wiped out if the company takes a profit).

And of course, if the company can't find other entities willing to lease the beds at an inflated price, the county will be stuck with the full tab for space it doesn't need, since it will still need to operate a jail.

What the Judge proposes is a massive gamble his county should reject. Let John McCain be elected and get immigration reform, for example, and the private prison market could see a massive glut in Texas overnight as detention centers empty.

Like other Texas counties, Grayson could solve its short-term jail crisis just by reducing its rate of pretrial detention. Grayson lies at the extreme end of a statewide trend of increased pretrial detention. Statistician Tony Fabelo reported recently that "overall jail population increased 18.6% between 2000-2007, he said, the number of pretrial detainees increased 49.2% over the same period." A consultant hired by the county found that 73% of jail inmates were pretrial detainees, meaning they had been convicted of no crime and could leave if they could afford bail.

From these numbers I don't think Grayson actually needs to build a new jail. But if they did, taxpayers are better off if the county just builds the jail that it needs. It doesn't make sense to me to subsidize some speculative mega-jail as an entrepreneurial venture, and I hope Judge Bynum's colleagues on the commissioners court shoot it down.

Add 'surname profiling' to jail overcrowding as reason to oppose ICE in Travis Jail

I'd said earlier that arguments to limit jail overcrowding were stronger criticisms than racial profiling of the Travis County Sheriff's new policy to allow federal immigration agents to set up shop in the jail. But Jamie Spencer makes a credible case that the policy could lead to more frequent "surname profiling," potentially capturing US citizen for hours or days based on wrongful supspicions. After all, he reasons:
how does the Travis County Jail (or I should say Sheriff’s Office) make the initial determination that someone is – or may be – an illegal immigrant?

As I’ve pointed out before, criminal defense lawyers in Austin as a group have probably all had the occasional experience where their client has an INS hold on them, even though they are an United States citizen because of their last name.

Surname profiling (i.e., a ‘hispanic’ surname leading to an INS hold) is a more accurate phrase perhaps than racial profiling, but it is unacceptable. Period.

I don’t care if it only takes a few hours, or a few days to ‘clear up the problem’ and release the hold. Any extra time incarcerated because a law enforcement agency thinks you might be here illegally is unconstitutional.
See more on this topic from No Friends With Salad.

Brooklyn informant SNAFU inspires transparency legislation

Speaking of New York, the implications of a case involving police corruption and drug informants in Brooklyn keeps spinning more and more widely out of control, and exhibits many of the problems with overuse of informants frequently criticized on this blog. Reports the Gotham Gazette:

Last September, Brooklyn South narcotics officer Sean Johnstone told a fellow officer that he had paid his confidential informants with cocaine illegally seized from a crime scene. What Johnstone didn't realize, or had forgotten, was that his conversation was being recorded.

The ensuing internal police investigation has resulted in an embarrassing spectacle for the New York City Police Department and the Brooklyn South narcotics division, which includes Park Slope, Midwood and Coney Island and made 7,400 arrests in 2007. Four officers, including Johnstone, were arrested for illegally providing drugs or money to their confidential informants, while another dozen were suspended or transferred to other duties. The disclosures forced the Brooklyn District Attorney's Office to dismiss charges or vacate convictions in 183 cases, and a new commanding officer was appointed to run the department's narcotics unit. ...

The scandal has given renewed life to legislation introduced last year by Brooklyn State Assemblymember Joseph Lentol, which would require law enforcement agencies to publicly disclose information about the use and effectiveness of confidential informants. The legislation would also limit the ability of prosecutors to drop or reduce certain types of charges in exchange for informant information.

Of course, if Officer Johnstone had given cocaine to an informant in Texas, the Court of Criminal Appeals would have found a way to let him off. Be that as it may, I was interested in seeing the reference to legislative solutions on this topic. According to a press release from Assemblyman Lentol:

“No one is trying to stop the practice of using confidential informants. We understand that they can be vital in fighting crime and are an enormous time saver for both police and prosecutors,” said Assemblyman Lentol. “However we are trying to ensure that when they are used it is truly in the best interest of the community and that society is able to have some modicum of oversight and transparency.”

No one knows how often this practice is used or even how it is used. Assemblyman Lentol’s legislation, which was highlighted in a recent New York Times Story, would serve as a jumping off point to study this practice. In addition to putting in some much needed regulations, it compiles annual statistics about the use of informants so that judges, legislators and law enforcement have the tools and information they need to properly regulate this practice.

Some of Lentol's "transparency" requirements reflect the recommendations three years ago by Prof. Alexandra Natapoff, who's quoted in the Gotham Gazette article. Not many states have substantively tackled this problem, so I'll be interested in seeing what Lentol winds up proposing and passing on this subject. Maybe they'll have some good ideas we can borrow during Texas' 81st Legislature next year.

A home remedy for juvenile corrections?

As we head toward tomorrow's oversight hearing involving the Texas Youth Commission, everyone who's concerned with juvenile justice reform should be sure to read the article in the New York Times yesterday ("A home remedy for juvenile offenders, Feb. 20) describing the Big Apple's new approach to juvenile crime: Intensive in-home services for offending youth in lieu of incarceration. (Thanks to several readers for pointing it out.) Not only does the program produce superior recidivism numbers, at least so far, it's a lot cheaper than locking kids up:
at roughly $17,000 per child, such in-home therapy programs cost a fraction of the annual expense of keeping a child in secure detention, which can be $140,000 to $200,000.

In fact, the financial incentive is such that both the city and state are rapidly moving away from residential detention. Gladys Carrión, the commissioner of the state’s Office of Children and Family Services, recently announced that she would close six nonsecure facilities, a cut that will save the state $16 million a year.

The elimination of detention beds puts more pressure on the city to succeed.

In Texas we spend around $60-65K per year for children locked up in TYC - more for those with significant mental or physical healthcare needs - so $17K would be an inexpensive alternative, even here where we spend much less than New York.

The Texas Youth Commission has been placing community services under similar pressure under the previous administration, just without really announcing or planning for it jointly with counties. Both new agency rules and SB 103 contained provisions aimed at reducing the number of youths who enter TYC and reducing the length of stay for kids who are sent there. Thus, local probation departments and juvenile detention facilities, just like in New York, currently are under significant pressure to manage more of these youth in the community.

I'm particularly encouraged that the NY program appears to focus on the entire family unit, particularly the parents, not just the offending kid. The typical parent of youth in the juvenile justice system, while widely blamed in many quarters for their children's offenses, usually is at the end of his or her rope. Many need knowledge or resources they don't have to manage youth in crisis. In any event, locking their kids up empirically wasn't preventing new crime:

State studies found that more than 80 percent of male juvenile offenders who had served time in correctional facilities were rearrested within three years of their release, usually on more serious charges.

While in-home services mean that hundreds of teenagers with criminal records are returned to their communities, city officials say it is a trade they are willing to make. “It’s an uphill battle,” says Ronald E. Richter, the city’s family services coordinator. “These young people and their families present complex challenges.”

But whether the children go to residential correctional facilities or not, they come back to the community eventually anyway, Mr. Richter said, and the program “helps parents learn how to supervise and manage their adolescents so that they act responsibly instead of engaging in dangerous behaviors.”

Some youth are truly dangerous and need to be locked up for everyone's safety, but right now a lot of non-violent offenders and more petty violators are locked up in TYC with the true predators, mostly because counties - especially the Big Five - don't have an infrastructure to provide the kind of community-based resources described in the article.

Community-based services aren't a cure-all for juvenile crime, but neither are youth prisons, which are a lot more expensive and which we already know don't prevent recidivism. As the Youth Commission and the juvenile probation system go through "Sunset" review in the coming year, I hope this model - which coincides with and complements the recommendations of the "Blue Ribbon Panel" - is the direction they take things.

Indeed, I wish we'd had the foresight to prepare that infrastructure before they started shoveling kids downstream by the hundreds to local juvie probation departments, who don't have resources to handle them, after all, or the youth wouldn't have sent them to TYC in the first place.

Wednesday, February 20, 2008

As oversight hearing approaches, TYC conservator releases 60 day report

For those tracking the minutae, TYC conservator Richard Nedelkoff has posted his 60 day report on the agency's website, just in time for the joint House-Senate oversight committee on Friday. (See his report; thanks to Howard Hickman for pointing it out to me.)

Though I'm not sure what to read into these tea leaves, I'm told that only Nedelkoff and Ombudsman Will Harrell have been invited to testify at the hearing, and public testimony will not be accepted. Chairman Whitmire sounded pretty upset earlier in the week, but perhaps cooler heads will prevail and these two won't have some big public showdown at the hearing: That wouldn't help anybody or anything.

RELATED: See also a new report from the prolific Marc Levin at the Texas Public Policy Foundation titled, "The ABC's of TYC: Enhancing Front End Alternatives in the Juvenile Justice System." I'll be discussing this report more when I get a chance to read it thoroughly, but it's a topic that's even more important for public safety, arguably, than what happens at TYC, which handles just 3% of convicted youth statewide. The rest are handled through local juvenile justice systems that receive too little attention when reforms are discussed. Good job, Marc.

Nuts and bolts of citations for low-level misdemeanors explained by Travis Sheriff's Office

For those who couldn't attend the event, handouts from presenters at the Bexar County symposium on jail overcrowding a couple of weeks ago in San Antonio have been posted online (see here).

A couple of different speakers in SA focused on the new authority granted to Texas police officers in 2007 to give citations instead of making arrests for certain low-level, non-violent misdemeanors - that was HB 2391, for those keeping score at home. I wanted to elaborate on their presentations so that folks in counties that have resisted using the new authority can see how it both saves money and keeps officers out on the street doing police work.

Major Scott Burroughs of the Travis County Sheriff's Office told the audience that his agency first proposed this idea in 2005. (As an aside, I've now heard about half a dozen different Sheriff's Departments and nonprofit groups claim credit for coming up with this idea - I first heard the idea from the jail administrator in Midland, Dennis McKnight who's running for Sheriff in San Antonio has long backed a similar proposal, and bill sponsor Jerry Madden told me it was former state Rep. Suzanna Hupp who brought him the bill. It always bodes well for the future of a political proposal when people argue over who gets credit for coming up with it!)

From Travis County's perspective, said Burroughs, the primary purpose of the bill was not to reduce jail crowding but to "create efficiencies for patrol officers." The TCSO's jurisdiction covers more than 900 square miles, he said, but all prisoners must be booked at a central facility in the heart of downtown. According to a handout Burroughs distributed (see his power point presentation):
  • Because of several natural barriers in Travis County such as Lake Travis and the Colorado River, some officers must travel more than 50 miles to book a prisoner.
  • Because of traffic congestion, officers often have to spend more than an hour to travel to the jail and more than an hour to return to their district after booking a prisoner.
  • Some officers were out of district for four hours or more to effect a custody arrest. Because of staff shortages, some districts were unmanned during the entire process.
  • The ability to issue field release citations cuts the time to effect an arrest to less than one hour in most instances and allows the officers to remain in their districts.
Maj. Burroughs also identified several "myths" propagated by opponents of the new law, and explained how the process in Travis County mooted their criticisms. Among these "myths":
  • "There is no mechanism for the defendant to be photographed."
  • "There is no mechanism for the defendant to be fingerprinted."
  • "There is no mechanism for processing the defendant into CJIS" (Criminal Justice Information Systems)
In opposition to this mythology, Burroughs supplied these "Facts":
The defendant is ordered to appear before a magistrate so they may receive their warnings as required by Article 15.17. The Bill further states the magistrate, except for good cause shown, will release the person on personal bond. Once the magistrate performs their duties under 15.17, the defendant should be ordered to submit to the booking or intake process as a condition of their release on personal bond. All photographs, fingerprints and information needed for CJIS reporting may be collected at this time. Article 60.08 allows 30 days for CJIS reporting in these types of cases.
So basically in these cases, after the defendant sees the Justice of the Peace, they head to the office of Pretrial Services to be interviewed for a personal bond, and processed as a "walk through" without ever taking up space in the jail. The next time you hear the argument that using this authority creates administrative headaches, be sure to explain how easily it's accomplished in Travis County.

Marc Levin of the Texas Public Policy Foundation also discussed this legislation in his presentation, which was part of the panel where I presented. He pointed out that the bill allowed payment by mail if prosecutors opted not to seek jail time for these offenses. Levin also suggested that county commissioners could "designate misdemeanors that are non-jailable in that county, which also eliminates indigent defense costs." (See his power point presentation.) No county has taken advantage of that authority, yet, but it's a good idea.

I wanted to pass along this information because so many opponents of letting police use this new authority have wrongly claimed that it reduced public safety or created insurmountable administrative headaches. There have always seemed to me like very strong public safety and economic arguments for using this new authority, but clearly many in law enforcement are not yet convinced.

See prior, related Grits coverage of HB 2391: