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:

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:

• Rick Perry's email available for $54 per day
• Dallas burglars approve of new cell phone ban
• Lessons from TV: Cops trust snitches

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:

Texas
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.

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.

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.

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.

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 fewer 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.

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.

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:

• Tyler officials should listen to voters, use new tools to reduce jail overcrowding
  
• Note to MSM: Please stop repeating error on jail overcrowding law
  
• Counties balking at giving officers discretion on low-level arrests
• Tuff on crime meet reality at the Nacogdoches County Jail
  
• Sheriffs more likely than PDs to welcome new arrest discretion
  
• Jefferson County works out kinks with new cite and summons authority
  
• How one Texas county will take advantage of new law to reduce jail overcrowding
• HB 2391 could save Bexar taxpayers $10,000 per day
• Bexar jail administrator: Stop arrests for nonviolent misdemeanors
• DA Susan Reed blocking key Bexar jail overcrowding solution
• Midland Sheriff's Captain: Cite and summons for low-level offenses would reduce jail overcrowding
• Cite and summons for low-level offenses could free up jail space
• Texas Lege approved new tools to reduce jail overcrowding, if police can change their thinking
• DAs thwarting jail overcrowding solutions

Back Gate Back to Regular, Excellent Publishing Regimen

Though their remodeled site does not have permalinks, making it impossible to link to individual stories (please guys, fix this and you'll get a lot more traffic from me, at the very least!), The Back Gate, a blog operated by Texas prison guards, has published some excellent, informative posts in the last couple of weeks, including an item by a Sergeant who was accidentally pricked with a prison tattoo needle (pictured) during a cell search. He describes the torturous wait for medical test results to come back, and how the preventive treatment regimen changed his life for months thereafter.

Virtually everyone who goes to prison comes back with one or more tattoos, though all of the required equipment is considered contraband. In New Mexico under Republican Governor Bill Richardson, state prisons actually set up tattoo parlors inside the walls to reduce the spread of HIV and Hepatitis C through dirty needles. With medical costs rising, that might be something to think about; it's not like the current system has eliminated the practice of applying prison tats.

Another Back Gate story informs us about a Farmers Branch-based company called Unique Performance that used Texas inmates to build muscle cars. The vehicles were allegedly fraudulently marketed and never delivered to hundreds of customers around the globe. Another Back Gate story lets us know about an instance where a company using prison labor wound up competing directly with a local company for contracts, drawing political backlash that included intervention by Texas legislators and Ag Commissioner Todd Staples.

Good stuff from our friends at TBG. Visit them for more.

National Guard corruption highlights border security challenges

Two of the National Guard troops deployed in 2006 by Gov. Perry as part of Operation Linebacker have been convicted of helping smuggle illegal immigrants across the border, further evidence that it's the checkpoints, not the empty spaces in between, serving as primary entry points for illegal smugglers. Another National Guardsman was arrested recently in Fort Worth smuggling drugs when he bragged to an informant how he eluded police.

So it appears the National Guard troops sent by the governor to "secure" the border have proven as subject to corruption as every other border enforcement agency. I continue to believe this cross-border trade can only exist because of official corruption on both sides of the border.

You hear folks say we must "secure the border first," but I think that's premature. Eliminate official corruption first and rationalize immigration laws, then you might be able to have a serious discussion about improving safety at the border.

Voluntary guidelines don't "ensure" Ex-Im Bank won't give more loans to drug cartels

According to the Sarbanes-Oxley Compliance Journal, the Ex-Im Bank's new "Know Your Customer" initiative - which Grits readers will recall was created after WFAA-TV reporter Byron Harris in Dallas revealed the agency had given loans to figures associated with drug cartels - will be "ensuring that Ex-Im Bank supports creditworthy and legitimate transactions."

The problem is, the Know Your Customer background checks that would notify authorities of drug-related loans aren't mandatory under the guidelines.

So how does that "ensure" anything? It's one thing to identify "best practices"; it's quite another to require them to be implemented before your loanmakers give taxpayers' money to criminal smuggling gangs.

I'd like to see the Government Accounting Office or some independent auditor follow up on WFAA's revelations about Ex-Im Bank loans to drug cartels. Their self policing obviously is insufficient, and my guess is that Mr. Harris has only uncovered the tip of the iceberg.

Who's on TV?

Early voting starts today, so I'm curious, who has commercials on TV in the major criminal justice races where you live?

In recent elections, about half of voters cast their ballots early, and most of those are cast during the first three days or the last three days of the early voting period. So if you're not up on television when early voting starts, you've missed getting your message to what's become a significant chunk of the electorate who'll vote by the end of the week.

In the Travis County DA's race, so far I've only seen Rosemary Lehmberg on television with what I thought was an effective ad emphasizing her experience and the incumbent's endorsement. Her ad's running a lot, and she may win by default if nobody else goes on the air soon.

I'm curious if anybody's seen TV ads for any of the GOP candidates for DA in Harris County - who can afford TV advertising could easily decide that primary race, since voters don't know most of the candidates. If you live in Houston, do any of these candidates have TV ads running already?

Similarly, I'm curious whether there have been ads running in the Sheriff's race in either Dallas or Bexar Counties in either primary. I haven't heard of any, but that doesn't mean it's not happening. Ditto for the race to replace the late Sheriff Leo Samaniego out in El Paso. It's crunch time for all of these important races.

Let me know whose ads you've seen, if anybody's, in these or other crim-just races, and what you thought of them.

Support resolutions at precinct conventions to reform adult and youth corrections: A Grits mini-campaign

In Texas' Democratic primary this year, voters get to "vote twice," meaning they can vote once at the ballot box and, for the very committed, they can go to local precinct conventions on election night and vote again in party caucuses.

For many people, these caucuses will be their first experience with their political party's internal machinery (on the GOP side, precinct-level battles have been more common over the last two decades). Burnt Orange Report recently had an excellent two-part series describing the delegate selection process on the D-side, and Mark Camann over at BOR had a nice post describing the resolutions process that inspired this campaign.

With so many folks attending their precinct conventions for the first time, I decided to craft two criminal justice related resolutions for readers to propose when they go, and we're going to run a little mini-campaign here on Grits to see in how many different places around the state we can get them passed.

These resolutions serve two purposes: 1) if they pass, they formally request action by legislators and county officials from the party that can assist in persuading politicians on issues, and 2) the process educates party members about criminal justice problems and solutions and expands the base of support for these ideas among politically active people. Basically, you get a lot of public education bang for the buck by directly educating influential people and opinion leaders, particularly in a year when so many more folks will be attending.

Every blogger operates within their own personal theoretical framework about what blogs are for, what they're not, and what they are able to accomplish. For me, from the beginning, part of that framework has been, as I wrote in 2005, that "Blogs are a media strategy, not an activist medium." A lot of bloggers disagree with that conclusion, which I drew in part after observing the results of blog promotion in the Howard Dean campaign. But the blogosphere has matured substantially since then, and certainly Grits' readership is much larger now. So with your help, we're going to re-test the hypothesis, to see whether blogs can effectively generate direct political action, or at least whether this one can.

Last week I proposed drafts of both resolutions, and I've updated the one on TYC to include many suggestions from readers. If you're going to propose one or both of the resolutions, use these versions I posted on Google Documents:

• Resolution on Prison and Jail Overcrowding
• Resolution Supporting Reforms at TYC

These versions are written for the Texas Democratic Party, but the resolutions are equally suitable for use in the Republican Party of Texas just by changing out the party name. These issues are mostly bipartisan and support (and opposition) comes from both sides of the aisle.

If you're planning to attend your election-night precinct convention (in either party), please print out copies of these resolutions and propose them to your fellow precinct meeting attendees. If you represent a group that would like to endorse these proposals, let me know via email or in the comments, and we'll create an endorsement list for folks to take with them on election night.

Remember, as a regular Grits reader, you've given these issues a lot more thought than most people, and your expertise will matter to others. Many readers, such as TYC employees and inmate family members, have special experiences to bring to bear that will encourage people will listen to you.

All successful grassroots campaigns have three basic components: Identify, educate, and mobilize. That means identifying supporters (and in larger campaigns, opposition and "swing" constituencies), then educating them about the issue, messaging, and the process so that, at the appropriate time, they can be mobilized to participate in an election, a legislative vote, or whatever is at stake.

To perform these tasks, we're going to use several online tools to promote these resolutions. For starters, I'm asking participants to take this short survey, which will let us know how many people are going to propose the resolutions and where they are geographically. (That's the "identify" part.)

The survey collects an email (that won't be shared, and from which you can opt out) for direct correspondence with campaign participants via a Google group I set up just for this purpose (announcement only--no piles of email). That process and the blog itself will constitute the "education" portion of the campaign.

Then, on election night, the goal of the campaign is to pass the resolutions in as many different precincts in both parties in as many senate districts as possible. If I can figure out the back end, I'm hoping to utilize a Twitter account so folks can tell us by cell phone what the results were at their precinct. If it works, those results will show up on an RSS feed on Grits in real time. Feel "mobilized" yet?

After March 4, the process is not over. With luck, some reader-participants will have been named delegates to the county conventions, which is the next stop in the process. Precincts suggest resolutions to their county conventions, which themselves must recommend them to the convention at the state senate district level. There are 31 state senate districts, and the idea is to get the resolutions approved in as many separate senate districts as possible leading up to the state conventions.

My purpose here is two-fold: To support solutions-oriented criminal justice positions among Texas pols in both parties (who are used to hearing mostly politicized, "tuff on crime" rhetoric), and to test the possibilities and limits of blog-generated grass roots activism, including several specific free or low-cost tools. So we'll be following the process closely on Grits to report what works and what doesn't.

So if you'd like to participate in Grits' online mini-campaign, take this short survey. Be sure to give me an email address so you can receive campaign updates and a last-minute reminder.

Finally email this post to anyone you know who may be interested in promoting these resolutions, post it to listservs of party clubs or neighborhood groups, etc., help generate endorsements if you can, and let's see what kind of support we can generate for these solutions-oriented criminal justice proposals on election night.

The Cost of Closure: How much did Texas spend to fail to execute John Paul Penry?

Doug Berman over at Sentencing Law & Policy has been wondering about the cost of the death penalty in Texas, estimating (perhaps inflatedly) that the John Paul Penry case - where the defendant received life without parole after nearly 30 years of litigating his case in the appellate courts, including three trials and two trips to the US Supreme Court - cost Texas $1 billion when it was all said and done. The professor wonders:

how many underfunded local police forces or local schools or crime victim funds or roads construction crews could have been more productive than was the criminal justice system with this billion dollars wasted by Texas prosecutors trying to have the state kill Johnny Paul Penry for his admitted crime[?]

The particular irony in the Penry case is that prosecutors' pursuit of the death penalty lead to accomplishments, but mostly by those favoring death penalty abolition. The time and money spent on the Penry case surely diverted some Texas prosecutors from spending time and money pursuing other capital cases. Moreover, the two Supreme Court Penry decision were critical catalysts for the Court's ultimate ruling in 2002 that the Eighth Amendment demands a categorical ban on the execution of all persons who suffer from mental retardation. So, to be accurate, the billion dollars invested by Texas prosecutors in the Penry case did have some positive pay-off — but really only for those who oppose capital punishment.

Quite a few commenters thought the $1 billion estimate was way too high (don't people become lawyers so they won't have to do math?), but Berman replied that "Given that NJ spent $250,000,000 on its death penalty without even having a single DP case go deep into the federal habeas process, I do not think the ONE BILLION price tag for the Penry case is completely out of whack as an educated guess."

Karl Keys thought the number might be closer to $50 million - a large sum to be sure, but 1/20 of Professor Berman's estimate. Calculated in current day dollars (i.e, taking into account inflation over 30 years), the total might exceed double that amount, since much of the cost was borne in the 1980s and '90s. Karl suggested, correctly:

I think your math is bad due to a faulty assumption about per unit costs. The per unit cost of the first execution is high but dramatically drops once you get out to 400+ execution range that Texas now occupies.

That's a good point, though a sad commentary. Last year more than 60% of all executions carried out in America took place in Texas. At a certain point you create an economy of scale, and soon thereafter, a monstrosity.

Jail Sucks! Unless You're a Bail Bondsman

Yesterday at the grocery store, I was taken aback to see a tall, blond-haired man wearing a t-shirt with big black letters on the front declaring simply, "Jail Sucks!"

What can I say? The t-shirt made me grin. I thought maybe Diana Claitor at the Texas Jail Project had come out with a new apparel line.

Curious, I wheeled my cart around the other direction onto the next aisle to see what was on the back: It was a number for a bail bondsman.

Immigration laws prevent police from solving crime

The most important public safety argument for expanding legal immigration and legalizing undocumented immigrants, to me, is the fact that immigrants tend not to cooperate with law enforcement as either a victim or a witness, even in cases of domestic abuse. KXAN-TV in Austin had a recent story on this topic:

For those living in this country illegally, the fear of deportation can keep them from reporting a crime. ...

"Women in general are afraid to report domestic violence," said Detective Darla Fuller of the Travis County Sheriff's Office. "When a woman is afraid of deportation, usually that is something that the batterer has used to keep her in line or to try to keep her from calling law enforcement."

There are supposedly around 1.6 million undocumented immigrants living in Texas. That's 1.6 million people who are unlikely to either report crimes against them (particularly those committed by a family member) or cooperate with police as a witness.

Austin PD and the Travis County Sheriff both say they don't ask victims about immigration status, but the Travis Sheriff has just allowed federal immigration agents to set up shop in the jail, so in cases of domestic violence, if the immigration status of the offender is the same as the victim, the policy still keeps people from calling.

The Sheriff's Department actually recommended women in this position call the Political Asylum Project or SafePlace, a shelter for abused women, if they're worried about immigration status issues getting mixed up in a domestic abuse case. That seems outrageous to me: Our immigration policies are now causing law enforcement to refer out domestic violence cases to non-profits? That can't be good for public safety.

In a related safety matter, security expert Bruce Schneier makes similar arguments as to why illegal immigrants, as a practical matter, "we are all safer if we encourage every adult in America to get a driver's license," he wrote. Read his full essay from the Detroit Free Press where he argues, "We are all safer if everyone in society trusts and respects law enforcement. A society where illegal immigrants are afraid to talk to police because of fear of deportation is a society where fewer people come forward to report crimes, aid police investigations, and testify as witnesses."

Congresswoman still spreading Tulia's lessons in Washington

The battle to get rid of Texas' network of drug task forces in the wake of the Tulia scandal contained a bipartisan (or rather non-partisan) "strange bedfellows" aspect that appears to be replicating itself in Washington, D.C.. President Bush, who for many years supported eliminating the "Byrne grant" fund entirely, has settled for slashing the budget by 2/3 in his final year.

Texas Byrne grant money now goes to fund border security projects of questionable effectiveness and a variety of smaller, mostly beneficial local programs. But in most states, the bulk of Byrne grant funding goes to pay for drug task forces, which is why Senators Kit Bond (R-Missouri) and Tom Harkin (D-Iowa) want to keep the pork barrel funds flowing. ("Bush budget slashes drug task force grants," The Wichita Eagle, Feb. 17)

Currently, [Bond] said, the Byrne grant money is the major source of funding for 25 to 29 drug task forces, in which officers from various counties and cities join forces with state agencies such as the Highway Patrol to go after drug dealers. The politics surrounding the Byrne grants are producing odd bedfellows in Washington. While Bond finds himself at loggerheads with a president of his own party, some Democrats have joined the Bush administration in raising questions about the value of the grants.

Democratic Rep. Sheila Jackson Lee of Texas has been among the most persistent critics. She said the drug task forces financed by Byrne grants are subject to little federal oversight and that some of them have used racial profiling to pursue drug dealers.

In one case, in Tulia, Texas, in 1999, dozens of people were sentenced to decades in prison based on the uncorroborated testimony of one drug task force officer. Most of them were pardoned four years later, and the officer was convicted of perjury.

In 2005, the Bush administration's Office of Management and Budget said the Byrne program lacked goals, solid management and planning. Since 2002, the program has been cut from $900 million to $170 million. Bush is now proposing to spend $200 million on the program in 2009, while Harkin and Bond are proposing to return to $660 million.

Bully for the Texas Congresswoman for insisting that folks in Washington recognize the important lessons from Tulia, an episode which took place nearly a decade ago in a town of fewer than 5,000 that continues to influence how America thinks about the justice system.

For that matter, this is an issue where I've long supported President Bush, even producing a series of full-page newspaper ads in support of his budget cuts that ran when I worked for ACLU. (Here's one that ran in the Jacksonville Progress; click on the image to enlarge.)

The sky didn't fall in Texas when our drug task forces lost their funding, and these other states will all survive, too. Democrats and Republicans alike should support President Bush's efforts to de-fund Tulia-style drug task forces nationwide.

Whitmire still angry over D'Pope's dismissal but the deed is done

The Dallas News this morning has a long feature on Texas Youth Commission woes that indicates Sen. John Whitmire is still on the warpath against the new conservator, Richard Nedelkoff. Whitmire intends to use a hearing scheduled on Friday to call Mr. N on the carpet for his decision to fire Dimitria Pope, the senator's long-time close friend. Reported Doug Swanson:

"I don't know who's on first base, and I'm not sure Nedelkoff knows what inning we're in," Mr. Whitmire said. "I don't have confidence that he knows what's going on."

Mr. Whitmire co-chairs the special joint legislative committee on TYC, which convenes Friday in Austin. He and other legislators say they will direct Mr. Nedelkoff – who in December became the agency's third conservator in nine months – to bring some desperately needed calm and purpose to the agency.

"It's awful," Mr. Whitmire said. "We need stability."

Apparently, Whitmire said, Pope misled the Legislature last year when she told them TYC was making good progress, telling him behind the scenes things were worse than ever:

Ms. Pope, who spent eight months as acting executive director, did not reply to several requests for comment. In December, she declared that TYC's progress toward reform was excellent. Behind the scenes, however, a different conversation was occurring.

"Ms. Pope's gone, but the problems still exist," Mr. Whitmire said last week. "She told me last month that things are a lot worse at TYC than anyone knows."

But inexplicably, the Senator is not angry at Ms. Pope for concealing these problems in her testimony before his committee on numerous occasions, but at the new conservator for recognizing she was covering up a big mess and getting rid of her. How much sense does that make?

Meanwhile, new concerns revealed at recent visits by the Ombudsman and Harris County's TYC liaison to the McFadden Ranch halfway house in Denton typify a slew of unresolved difficulties facing the new conservator:

Privately, senior TYC officials talk now of "hitting the reset button" on the agency for another rebuilding effort in many crucial areas. Among them: replacing failed therapy programs, finding qualified correctional officers to hire and maintaining order at isolated and outmoded youth prisons.

Recent reports by two independent inspectors found some of the old problems persisting. The reports, by TYC's independent ombudsman and Harris County's TYC liaison, were released to The Dallas Morning News by the ombudsman after a request under the Texas Public Information Act.

Both sets of findings were issued after unannounced visits to TYC's McFadden Ranch halfway house at Roanoke in Denton County. They detail repeated instances of failure to provide timely medical treatment to sick or injured youths.

One boy reported waiting weeks to see a doctor for a torn tendon in his wrist. Others complained of long delays in treatment for serious cuts, broken bones and breathing problems.

Several said they had not complained about medical treatment before because they were afraid of retaliation by staff.

The grievance procedures – by which youths file complaints – received strong criticism in the reports. Juveniles at McFadden "have consistently reported that they do not file grievances because it only makes their situation worse," the Harris County liaison wrote. "Youth report they are often singled out and ... the staff the grievance was filed against becomes angry and ridicules the youth by calling them 'snitch.' "

You can't say Pope or the Committee didn't know about McFadden Ranch's woes. Sen. Whitmire's joint committee was told about medical-related abuses there last August, and Ms. Pope told them she would immediately follow up. But here we are. (The comment string on the post about that committee's McFadden Ranch discussion is the longest ever in Grits' history - currently at 676 comments - including many other first-hand problematic allegations.)

Sen. Whitmire may well put the conservator through the ringer on Friday, but it won't matter. The deed is done. Hopefully other committee members will prefer to look toward the future.

One final note, apparently you really could tell who were the Grits readers at TYC after Dimitria Pope's firing. Swanson lede declares:

After Dimitria Pope's forced resignation from the Texas Youth Commission last week, some TYC employees began singing, "Ding-dong, the witch is dead," from The Wizard of Oz.

What Doug didn't mention was that those singing had all heard the tune as a result of its posting in Grits' comments soon after her departure was announced. So guess what, guys, you made the paper!

Does the Texas GOP need judges who think being Latino makes you a "continuing danger"?

Texas Monthly and many others consider them "Texas' Worst Court," and in this writer's opinion, everyone should seize every available opportunity to vote against incumbent members of the Texas Court of Criminal Appeals. If you're voting in the GOP primary on March 4, you'll get that chance in in one of the three races.

The San Antonio Express News today endorsed challenger Robert Francis, a state district judge from Dallas whose candidacy Grits examined here, against Texas Court of Criminal Appeals Judge Paul Womack. There are plenty of reasons to vote against Womack, but the paper trots out this oldie but goodie:

Womack, who has served on the court for 12 years, also wrote the outrageous 2002 Saldano opinion, which allowed ethnicity to be considered as evidence that a defendant would be a continuing danger to society.

Two years earlier, then-Texas Attorney General John Cornyn had successfully petitioned the U.S. Supreme Court to overrule a previous Texas Court of Criminal Appeals decision in the case.

A psychologist testified during Victor Hugo Saldano's sentencing that he would be a continuing danger to society because he was Hispanic.

Dismissing the concerns of the state's top lawyer, Womack wrote the majority opinion that denied a new sentencing hearing because the defense attorney did not object to the testimony during the trial.

So one's Latino ethnicity, if it were left up to Judge Womack and the CCA majority, could be used by "experts" at trial to convince jurors the defendant is a continuing danger to society. (I can't decide which is more outrageous - that decision or Presiding Judge Sharon Keller's refusal to accept a last-minute death penalty appeal.) Even John Cornyn, then Texas AG, felt it necessary to ask SCOTUS to bench slap his fellow Republicans.

This was one of a series of opinions (see it in full) where the CCA essentially thumbed its nose at the US Supreme Court and refused to follow its dicta. It sounds unbelievable, but that's who we've got representing us on Texas' highest criminal court.

Are you embarrassed yet? Republicans will get a chance to do something about it on March 4.

UPDATE: The Fort Worth Star Telegram also endorses Francis. See more coverage of the race from the Houston Chronicle.

What's the appropriate sentence for official corruption?

Rooting out corrupt law enforcement would do more IMO to stymie drug cartel smuggling activity than all the interdiction tactics we can muster, so on one hand I'm glad to see the prosecution of a DPS crime lab technician and his cohorts this week in Houston for stealing 26 kilos of cocaine from the evidence locker. The technician was sentenced to 45 years in prison (out of a possible range of 5-99).

One Chron reader declared that "Whenever a public safety employee betrays the public trust they can and should receive a harsher sentence." That's true. But we see drug sentences that long for civilians, too, so it's not the official corruption that explains it. Even if the 31-year old lab technician is paroled after half his sentence, it will cost taxpayers $360,000 (in present-day dollars @$16K per year) to incarcerate him that long.

I'm all for prosecuting corrupt cops, but I agree with Chronicle readers who found the sentence over the top. After all, it's possible to get probation for murder in this state. An elected Sheriff from Cameron County who was actively assisting a drug cartel smuggling loads through his jurisdiction only received a 24 year sentence under federal guidelines.

What do you think? What's the right sentence in a case like this?

I'm not sure I see a good public safety reason for any non-violent offense to garner more than a second degree felony charge, which brings punishment of 2-20 years. The only possible argument for such long sentences is to "send a message," but in my book if you want to send a message, rent a billboard. Criminal law should be about justice, not public relations, but this sentence seems more about the latter than the former.

Challenging eyewitness IDs in court

The price is a little dear for my means, but some of you legal eagles may be interested in an event sponsored by the National Association of Criminal Defense Lawyers in New York City in March on litigating eyewitness ID testimony, a timely topic in the wake of increasingly strong evidence that faulty witness and victim identifications are the leading cause of wrongful convictions. In addition to instruction on applying cutting edge research and litigation techniques to challenge the veracity of eyewitness identification in court, the event will:

afford attendees the opportunity to forge relationships with the Eyewitness Identification Reform Litigation Network, which now has over 70 “point people” in 40 states. The Network is interested in working with the nation’s best criminal defense attorneys on pinpointing eyewitness identification cases with potential for creating favorable appellate decisions that incorporate the psychological research on identification issues and/or mandate procedural reform. As part of this endeavor, the second day of the training will include “break-out” sessions in which attorneys will workshop pre-selected cases which could become test cases for the Network’s reform litigation agenda. The training will be recorded and available via CD-ROM for CLE credit, and will be accompanied by a set of “master materials” corresponding to the topics covered.

While my guess is that neither the Texas Court of Criminal Appeals nor the Fifth Circuit are the first places the Network will seek to establish "favorable appellate decisions," we've had some cases in Texas that seem like poster children for their cause. I hope someone attends who blogs from the event. Registration information is here.

h/t: Eyewitness ID Blog

Where is Congressional investigation of steroid abuse among law enforcement?

Ever since the US Department of Justice (USDOJ) began selectively prosecuting high-profile athletes amidst Congressional media grandstanding, I've been wondering why the same focus isn't placed on law enforcement, where there's at least as much evidence of widespread use.

It turns out a fellow Texan beat me to that argument; Dr. John Hoberman of UT-Austin in 2005 wrote an informative article on the subject ("Dopers in Uniform," May 22, 2005). The full, footnoted piece is well worth reading, but here's an excerpt that shows the connections between police and steroids has been recognized for quite some time:

One of the remarkable anomalies of the anti-steroid campaign of the past two decades is that it has virtually ignored the many reports of steroid use by police officers in the United States and in other countries. Unknown but clearly significant numbers of policemen have imported, smuggled, sold, and used anabolic steroids over this time period. According to an article that appeared in the FBI Law Enforcement Bulletin in 1991: "Anabolic steroid abuse by police officers is a serious problem that merits greater awareness by departments across the country." In 2003 another expert offered a similar assessment. Little research has been done on the use of steroids by police, said Larry Gaines, former executive director of the Kentucky Chiefs of Police Association. "But I think it's a larger problem than people think.".

A segment of the CBS-TV program "60 Minutes" had already made that point on November 5, 1989. "Beefing Up the Force" presented interviews with three officers whose use of steroids had apparently caused the hyper-aggressiveness that had gotten them into serious trouble. The worst case involved what one psychiatrist called "a real Jekyll and Hyde change" in the personality of a prison security guard in Oregon who had kidnapped and shot a woman who made a casual remark he didn't like. He got 20 years in prison, and she was paralyzed for life. The personality he presented during his prison interview made it seem utterly improbable that he would have been capable of such an act. But his testosterone level when he committed the crime was 50 times the normal level. This broadcast conveyed the message that steroid problems were lurking in many police departments across the country, and that police officials were turning a blind eye to a significant threat to public safety.

It was no accident that the "60 Minutes" segment paid special attention to a "hard core group" of steroid users on the Miami police force. Two years earlier the Miami Herald had run a long article on steroid-using police officers. The seven notorious Miami "River Cops", who in 1987 were on trial for alleged crimes including cocaine trafficking and conspiracy to commit murder, included Armando "Scarface" Garcia, a weightlifter who had publicly admitted to taking steroids. "There's a great potential for an officer abusing steroids to physically mistreat people," said the police chief of nearby Hollywood, Florida, who had told his investigators to be on the lookout for officers who looked like "small mountains." The Miami Herald article may have been the first of the tiny number of analytical treatments of this subject that have appeared in American newspapers since the 1980s.

So the next time you hear someone say that steroid abuse isn't a problem among cops or that there isn't a documented need to investigate the issue compared to professional athletes, you might share Dr. Hoberman's piece with them. (I can't find the referenced 1991 FBI Bulletin online, but I'll see if I can lay my hands on it.)

The House Government Oversight Committee's grandstanding witch hunt over steroid use in sports constitutes one of the craven abuses of power I've seen in a while. In an election year, Waxman's antics honestly makes me wonder whether national Democrats are ready to run the country? The Chairman actually told the New York Times:

“I’m sorry we had the hearing. I regret that we had the hearing. And the only reason we had the hearing was because Roger Clemens and his lawyers insisted on it.”

Well gee, sir, NOW you regret it? Who controls the damn committee besides you? Clemens insisted on the hearing because the other option was for you to issue a report smearing him without including his side of the story! Houston lawyer Rusty Hardin's views are closer to my own on this when he:

said Waxman’s statements were “unbelievable, disingenuous and outrageous.”

“He is the one who created this circus in the first place,” Hardin said of Waxman, contending that Clemens and his lawyers had asked several weeks ago for the hearing to be called off, only to be rebuffed by Waxman’s staff.

“We didn’t think any good would come out of having a food fight with the accuser,” Hardin said in reference to McNamee. But once the depositions were taken last week, he said, the Clemens side felt it had no choice but to proceed, fearing that the committee would use the depositions to produce a hostile written report. “We wanted this out in the open,” Hardin said.

The Justice Department should never have assisted Mitchell Report investigators, and certainly it was a mistake to include uncorroborated allegations from an informant who'd been threatened with incarceration. The hearing was little more than an elaborate perjury trap.

But more than that, why is Congress investigating baseball, anyway, especially when the feds have known for two decades there's a significant problem with steroid abuse in law enforcement they're utterly ignoring? Where are your priorities, Chairman Waxman?

I'm still wondering, as are many Americans, why the steroid hearings were so partisan, with Republicans mostly supporting Clemens and Democrats like Waxman fairly openly supporting Brian McNamee? Stephen Colbert suggested the other night it was because Republicans supported drug users while Democrats supported drug dealers! That explanation makes about as much sense as any. But nothing I've heard explains to my satisfaction why this was any of Congress' business.

Rosenthal Finally Chucks It

First Dimitria Pope's resignation at the beginning of the week and now Harris County DA Chuck Rosenthal has resigned. Somebody pinch me!

Why would Rosenthal leave now after all he's endured? According to his resignation letter, reports the Houston Chronicle, he declared that "Although I have enjoyed excellent medical and pharmacological treatment, I have come to learn that the particular combination of drugs prescribed for me in the past has caused some impairment in my judgment."

Evan Smith at Texas Monthly thinks the excuse would "make Lindsay Lohan proud." "The drugs did it!," he wrote. "That explains everything! And excuses nothing."

Speaking of Evan, in honor of this occasion he's submitted his own Chuck Rosenthal Haiku to commemorate the degraded DA's final hoorah; I think it sums up matters quite well:

Chuck’s awful career
gets a lethal injection:
Drugs made him do it.

Goodbye Chuck Rosenthal! Don't let the door hit you in the keyster on your way out.

UPDATE: See thorough coverage from Texas Lawyer. Also, Mark Bennett at Defending People makes the following connection between Rosenthal's drug habit and one of the GOP candidates running to replace him:

Dr. Sam Siegler has been described as Chuck's personal physician; from the emails released back in January it appears that Dr. Siegler's office was Chuck's go-to source for prescription meds.

Who prescribed the drugs that impaired Chuck's judgment? Dr. Sam Siegler?

Who is Dr. Siegler married to? Kelly Siegler.

Whose position is Kelly now running for? Chuck's.

Cozy, no?

Did Chuck's impairment escape the notice of those who worked with him at the DA's Office? If you realized that he was impaired, why didn't you speak up? If you realized it and didn't comment, or didn't realize it, what does that say about your judgment?

Give me your opinion on a draft resolution supporting TYC reform and we'll see if Grits readers can get it passed

This year the presidential fight for every last delegate in Texas ensures that Democratic precinct conventions on March 4 will be better attended than any time since I've been politically active.

Precinct-level battles on the GOP side have long ago been won, by and large, by the religious right, and are mostly attended by party regulars. On the D-side, though, this year's precinct conventions will see a lot of new faces. Democrats get to "vote twice" for President: Once at the ballot box, and for the committed, again on election night selecting delegates at their local precinct convention.

One of the roles of these "conventions" in both parties (besides selecting presidential delegates and party leadership) is to propose resolutions for legislative action or changes to the party platform. The missus liked the resolution I wrote on prison and jail diversion, and suggested that readers might appreciate it if one were prepared about the Texas Youth Commission.

I agree, but on this one, I'm going to propose a draft and let folks make suggestions for changes and improvements before creating a final version. Then next week I'll roll out a little mini-blog based campaign to support both resolutions, just to see how far we can take the idea. If you're going to attend your precinct convention anyway - as will record numbers of Democrats, I predict, to support their presidential choices - you can take these resolutions with you and see if you can garner support.

Proposing resolutions in this fashion serves a couple of purposes: Though hardly anyone reads the platforms (deservedly), if you can get a resolution passed, a letter from the party telling the party delegation to support X, Y, and Z carries some weight. Perhaps more importantly, though, the process of getting them passed (or even proposing them and failing) educates party regulars and opinion leaders about problems and needed solutions on the issues you're discussing.

Though the language below is written for presentation at the Texas Democratic Party, obviously you could change that to the "Republican Party of Texas" and propose it on the GOP side, if that's where you vote. Both support and opposition for these ideas is pretty bipartisan.

While I've written before that "Blogs are a media strategy, not an activist medium," that belief is based on analysis, not real-world experimentation and evaluating results. Since I wrote that, e.g., Grits' readership has probably quintupled. So who knows if it remains true in today's dynamic environment? (It's certainly worth launching a low-stakes experiment to find out.)

Let me know what you'd add, change, delete, etc., with the language below, then next week we'll put together some tools to assist Grits readers who'd like to promote these resolutions when you go to support your candidate. Here's a draft of the TYC resolution:

RESOLUTON CALLING FOR JUVENILE JUSTICE IMPROVEMENTS AND REFORM OF THE TEXAS YOUTH COMMISSION

WHEREAS the Texas Youth Commission (TYC) became embroiled last year in an internationally publicized sex scandal involving multiple facilities that cast a harsh light on problems in the state's juvenile justice system, causing its executive director and most top staff to resign or be fired;

WHEREAS the Governor's initial appointments to run TYC all came from the adult prison system and wrongfully spent the last year implementing policies based on an adult corrections approach;

WHEREAS a Blue Ribbon Panel convened to suggest solutions for TYC proposed shifting from large, adult-style units to smaller, community-based settings following national best practices;

WHEREAS the Blue Ribbon Panel found that TYC had developed a "punishment culture" similar to adult prison settings including overuse of physical restraints and solitary confinement, and recommended a shift toward a rehabilitative model;

WHEREAS most incarcerated youth in TYC facilities committed nonviolent offenses and end up there because local systems for educating and supporting kids with special needs have failed;

WHEREAS virtually all TYC youth will re-enter society in just a few years, and under the current "punishment culture" more than half commit new offenses when they leave incarceration;

WHEREAS TYC, like the adult prison system, suffers from chronic understaffing that makes both employees and youth in their care less safe and prevents treatment and rehabilitative programming;

WHEREAS because of underfunding by the Legislature and a lack of qualified treatment providers, youth sent to TYC routinely spend many extra months incarcerated waiting for spots in required treatment programs;

WHEREAS a significant percentage of TYC youth suffer from unmet mental health needs, and serious problems like post-traumatic stress treatment for abused youth go untreated;

BE IT THEREFORE RESOLVED that the Texas Democratic Party encourages the Texas Legislature to follow the recommendations of the Blue Ribbon Panel aimed at rehabilitating youth and ending the agency's counterproductive "punishment culture";

BE IT RESOLVED that the Texas Democratic Party encourages the Legislature to provide substantial additional funding to TYC to eliminate backlogs for drug and alcohol treatment, anger management, and other required programming, and to increase employee pay to eliminate chronic staffing shortages;

BE IT RESOLVED that the Texas Democratic Party encourages the Legislature to expand programming through county juvenile probation departments and asks county juvenile court judges to shift youth whenever possible away from youth prisons to community based settings;

BE IT RESOLVED that the Texas Democratic Party encourages the Legislature to prioritize expanding mental health treatment for youth in both carceral and community based settings, diverting mentally ill youth away from incarceration;

BE IT FURTHER RESOLVED that the Texas Democratic Party urges county governments to expand treatment and diversion programs to reduce the number of TYC commitments.

Submitted to and Adopted by Precinct ____ in ________________ County, Texas, Senatorial District ___, on March 4, 2008.

___________________
Convention Secretary

What would you change? What do you like? What should be added or deleted? Let me know what you think in the comments and we'll get a final version out next week.

Watch Travis County DA Candidate Forum Online

I just finished listening to a Travis County DA candidate forum held by the Austin chapter of ACLU and the Texas Moratorium Network, which Scott Cobb of TMN placed online over at Burnt Orange Report. (Isn't the internet a wonderful thing? I regretted missing the forum which took place about a half mile from my house, but Voila!, here it is!) Honestly, we're pretty lucky: From what I've seen, I'd be proud to have any of these Democratic candidates (there's no Republican running) represent me.

A couple of highlights: It was good news to me that all of the candidates supported expanding pretrial diversion for drug crimes and simply not prosecuting many of these cases. As mentioned recently, Travis County has the highest rate of pretrial detention for low-level offenses among large Texas counties - 24% of Travis County jail inmates are misdemeanants or state jail felons, compared to a statewide average of 10%.

Mindy Montford backed an idea for 24-hour ADA coverage to work more quickly process cases as they come in. I thought that was a good idea; the defense lawyers have to work all hours, the ADAs can do so, too! Seriously, processing cases faster at the front end of the process, particularly if we're going to expand pretrial diversion programs, is an important way to improve the system. That should be done no matter who wins the election.

Rick Reed got on my good side when he called for an "open file" policy at the DA's office. Reed also declared he would ask police to stop performing "consent searches" on Class C matters; they're disproportionately happening in poor and minority communities, he said. Long-time readers know I'm a big fan of that idea.

Candidates were asked about the recent study by the Justice Policy Institute that found that Travis County incarcerates black folks at 31 times the rate of whites. I was surprised to hear Rosemary Lehmberg, the long-time First Assistant to retiring incumbent Ronnie Earle, say that "police are making too many drug busts on one-rock cases." Gary Cobb suggested an idea from North Carolina where police videotape open-air drug dealers then intervene with their families combined with threats of prosecution to get them to stop.

Finally, on the question of the death penalty, Cobb asked the panelists whether they would support a moratorium on the death penalty in their office - not just while we're waiting for SCOTUS to decide Baze, but in general as a policy of the office. Only Rick Reed said he would do so; he declared when he was first hired as a prosecutor in Dallas he told them that he would be unwilling to prosecute such cases (he'd notify his supervisor, he promised, whenever it came up). He held that position, he said, because "regardless of advancements in technology there can always be human error throughout the process."

Rosemary Lehmberg replied that the death penalty now in Travis County is seldom used; Travis currently only has five defendants on death row. Lehmberg said she helped craft the current process for making capital punishment decisions which had become a national model, and recommended a Time magazine feature describing the process, "Guarding Death's Door."

Rick Reed's answers were probably the closest to my own opinions, and after watching the forum I'm probably leaning in his direction. But all four candidates had different things going for them. The whole video is a little more than 90 minutes long, so if like me you're still trying to figure out who you support, take the time to watch. And let me know what you think of the various candidates in the comments.

RELATED: See this string from the state prosecutors association debating the ethics of a candidate for DA declaring opposition to the death penalty.

UPDATE: Scott Cobb lets us know that there will be two more chances to watch these candidates debate. He has the details of a forum on Monday evening at the Dell Jewish Center, or you can watch a taped debate on Channel 8 or even on demand! Good for you, Time Warner Austin. Wrote Cobb:

You have three opportunities this weekend to watch a debate among the four Democratic Primary candidates for Travis County District Attorney on News 8 Austin. Here are the details from their website:

The debate will be on News 8 Saturday at 5 p.m., and twice on Sunday at 11 a.m. and 7 p.m. Also, beginning this weekend you can catch the debate at your convenience on News 8-on-Demand on Time Warner Cable Channel 1408.

Prosecutorial palavers about dildos, unhackable passwords, bogus forensics and copper theft

I hadn't visited the Texas prosecutors association message board in a while, and doing so today found several interesting goodies there:

One less felony on the books: Texas ban on sex toys struck down
I've mentioned before that Texas had 2,324 separate felonies on the books, but as of yesterday the new number is 2,323. Via this post, we learn that the 5th Circuit struck down Texas' statute criminalizing the sale of sex toys. See the 5th Circuit opinion, which relies primarily on the 14th Amendment as explicated in two landmark cases - Griswold v. Connecticut and Lawrence v. Texas - to determine that the state could not prohibit the toys' sale. From a distance this looks like quite a shift for the 5th Circuit, which at times has seemed barely aware of either the 14th Amendment or this line of cases. The Denton ADA who posted the item hoped wistfully the case might be appealed to the US Supreme Court, but more likely than not this decision will stand and simply erase Texas' prudish and outdated law.

Unhackable Passwords
I found this thread quite interesting on the limits of police ability to hack into hard drives using the PGP ("Pretty Good Privacy) encryption system.

Bogus Forensics
Yet another interesting thread focused on allegedly "bogus forensics," where one prosecutor declared ""the chances of being wrongly punished because of a false positive or bogus test are smaller today then they've ever been." Another commenter disagreed, though, declaring:

I'm not so certain this is true, because today there are so many tests (with attendant experts) out there - many of them with no real scientific grounding. What's worse, even if the theory underlying the science is valid, the actual practice is often undertaken by people/organizations with less than stellar competence. Example 1: The Houston crime lab fiasco. On CSI you see all these hyper-smart highly motivated experts working with 'state of the art' technology in an aesthetically pleasing laboratory....reality is often an under-achieving lab tech with a 'safe' government job in a crowded, dirty, underfunded, basement lab who knows there is little chance of being caught 'drylabbing.'

See the rest of sjf's comments for an interesting discussion of the downsides of science in the courtroom.

It may be a felony but you still have to catch them
This TDCAA discussion string focused on copper theft, which the Texas Legislature just made a state jail felony last year, even for stealing small amounts. The discussion tells me that the main problem isn't how harshly copper thieves are punished, but how to catch them? This seems to me another case where the Lege increased penalties to look like they're doing something, but the real problem goes unresolved because what's really needed is better front-end enforcement. The strategy described in Houston seems more likely to yield results:

Undercover police officers would go to scrap metal dealers posing as employees of an air conditioning company. They told the operators of several scrap metal places that they wanted to sell the coils from air conditioning units. But, they would ask if the dealer ever did business with the company that hey "purportedly" worked for. They didn't want someone from their company or thier boss to show up while they were trying to sell the coils. They made it clear that they were stealing the coils from their employer and wanted cash for the copper in the coils. All of this was recorded. They wouldn''t arrest anyone at that time but just sell them the coils. After they visited several places on more than one occassion each selling "stolen" coils to them the officers then met with me and I dreafted search warrants of each location for documentation of the purchase of the items. Texas law requires that they document the purchases. In every purchase, the owners of the scrpa metal dealership would fill out a receipt, as required by Texas law, but they put in phony names and dates, which we could substantiate from the taped recordings of the purchase.

See other discussion threads from Texas prosecutors - they always make for interesting reading.

Texas law bloggers enjoy deep talent pool

Scott Greenfield at Simple Justice thinks there must be something in the water that generates so many Texas law blawggers:

It seems like there's another new blawg by a Texas lawyer for every new one by a lawyer anywhere else in the country. Why is that? Today, I stumbled upon two blogs I'd never seen before, Bad Court Thingy and Not Guilty. The former is by a new lawyer who has inexplicably chosen to post anonymously, while the latter comes from a more experienced lawyer who is skirting the edges of the blawgosphere and self-promotion. Then, there's the eponymous Life at the Harris County Criminal Justice Center, a tad parochial on the parochial side.

The odd thing about the Texas blawgs is that they tend to focus largely on the sovereign Nation of Texas. Some might think they are narrow for that reason. I just think they don't give a hoot about what happens in foreign lands, like the United States of America.

Greenfield also wishes, as I do, that we saw more posts from Austin Criminal Defense Lawyer, declaring "another MIA blawger is Jamie Spencer, whose posts are always exceptional but increasingly sporadic. Come on Jamie, hunker down and get to work."

In the comments I suggested several reasons for the large number of Texas Blawgs:

First, it' s not just law bloggers. I saw recently that Austin is the leading city nationwide in terms of blog readership. Also, Texas is huge - 23 million people. Doug Berman did a post about Kansas recently and I realized their entire state prison system is smaller than the Harris County Jail!

Plus we've got a lot of solo practitioners in Texas, and they're just the kind of people who blogging appeals to - folks with big egos, lots of opinions and a yen for self promotion.

Finally, Texas had several early adopters like Houston's Clear Thinkers, Grits and the (now dormant) Texas Law Blog that spread the idea of blogging on state and local legal topics in TX pretty early on, inspiring others to try it.

Some combination of those reasons, plus several, I'm sure, I haven't thought of, probably explain it. Whatever the reason, it's really true though. Texas has more good law blogs that have gone out of business than most states have currently active! Here are a few more blogs with good recent posts that demonstrate the depth of the Texas legal blawgosphere:

• Defending People
• The Defense Perspective
• I Was the State
• Dallas Sidebar
• The Matlock Blog
• Prevention not Punishment
• Tex Parte (Texas Lawyer)

Let me know in the comments why a) you think Texas has such a depth of blogging talent on legal issues, and b) any other active Texas legal blogs you enjoy that I'm missing, particularly ones not already named in Grits' sidebar, which I've not been updating as regularly as I should.

Congressional steroid hearings an abuse of power

We're at war. The nation's credit system and housing markets are headed down the toilet. One quarter of Americans don't have healthcare and about 2 million Americans are locked up behind bars. But Congress and the nation's media today will focus their rapt attention on steroids and baseball, with "Rocket" Roger Clemens scheduled to testify under oath, risking perjury charges if he lies.

Let me repeat that: Clemens will testify under oath to Congress. We couldn't get Condi Rice to testify under oath about 9/11, and myriad Bush administration officials under the GOP Congress were allowed to appear before Congress without risk of perjury charges if they lied. But now Congress will give a baseball pitcher the third degree? I can just see the D.C. pols thinking, "We've got to get that guy's testimony straight. The fate of the republic is at stake."

No wonder Congress polls lower, even, than the President! What a bunch of grandstanding fools.

I'll give Clemens this: If he testifies under oath at risk of perjury that his ex-trainer did not give him steroids, the chief argument of his critics will be taken away. Senator Mitchell and others have said that Brian McNamee's testimony was credible because he risked perjury charges if he lied. But if, after this hearing, Clemens is in the same position and there's no other evidence besides the informant, all you have is a he-said, he-said situation where no one can prove what happened.

Which is why this witch hunt was a bad idea in the first place, and why it was improper for the Justice Department to participate in this PR-driven investigation.

I'd still like to know why the Justice Department and Congress don't pay this much attention to the just as clear evidence of widespread steroid use among law enforcement?

Just to have mentioned it, and this is naught but suspicions from afar, but I couldn't help but suspect foul play when I saw in the New York Times that the pharmacist who allegedly sold steroids to New York City police officers in an ongoing scandal turned up dead. I kid you not, officials ruled it a suicide (because they found a note and a gun) even though police said he died from "gunshot wounds to the chest and head."

Have you ever heard of a suicide with two shots to the chest and the head? If the guy accusing Roger Clemens turned up dead under these circumstances, do you think there'd be a bigger media hoopla than the one-day story in passing that constituted coverage of this pharmacist's death?

I bring up the NYC police case because the Department of Justice (and hence Congress) actually has an historic role investigating police corruption. But under the Bush administration, DOJ has turned a blind eye to police use of steroids and focused on high-profile athletes. That may make bigger headlines, but the approach results in little public safety benefit, especially when you consider that the "path not taken" in the steroids investigation would have been to go after corrupt cops.

Using Congressional investigative authority to create perjury traps for athletes is a joke when the government doesn't have to play by the same rules.

UPDATE: Here's an oddity from the long, grueling hearing: I got to watch the last half of it, and there was a clear pattern among the Congressional questioners. With the exception of drug war zealot Indiana Republican Mark Souder, all the GOP members appeared sympathetic to Clemens, while the Democrats appeared more accusatory of the baseball star. That pattern culminated when, in his closing remarks, Chairman Henry Waxman, a Democrat, actually apologized to Brian McNamee for comments by his colleagues, even though all they'd said was that he is a liar and a drug dealer, both things to which he's already admitted.

I don't understand why Congressional loyalties would fall along partisan lines? What am I missing that explains this pattern?

The rest of the "new" evidence that came to light was hearsay that would never hold up in court, so unlike the ESPN talking heads I don't expect any perjury charges to arise from this episode in either direction.

Waxman told the press the hearing was held because Roger Clemens insisted on it, but that's not how I see it. I think the hearing was held because the Mitchell report irresponsibly named Clemens based on the word of an informant coerced with threats of incarceration. After that horse was out of the barn, all Clemens could do was try and clear his name. At this point, whoever you believe, Roger Clemens has done everything he could possibly do to try to achieve that increasingly unlikely goal.

Feds want to set up shop in Texas jails, but county commissioners ask who will pay?

Sheriffs who want to allow immigration officials to detain more immigrants in local Texas jails are running up against a backlash from county commissioners who don't want to foot the bill for federal detainees.

I'd identified that problem earlier when Harris County Sheriff Tommy Thomas proposed such a change as part of his primary re-election campaign. Now the Travis County Sheriff is facing criticism over the same issue from civil rights advocates and his commissioners court, reports KVUE-TV:

Jim Harrington, the Director of the Texas Civil Rights Project, says he's skeptical.

"The county jail is already overflowing," says Harrington. "And the feds are going to build another jail for Travis County to account for all of these people that will be detained? No chance that will happen."

Travis County Judge Sam Biscoe says it's a controversial issue, and he wants to wait until he hears from all sides before making a final decision.

"I don't think we would eagerly promote immigration holds on people especially for minor offenses," says Biscoe.

So far Travis Sheriff Greg Hamilton is sticking to his guns, but the decision to increase immigration holds for minor offenses at a time when the local jail is full makes little sense to me. As Harrington points out, it's not like the feds will pay to build us more jail space.

Similarly, in Dallas proposals by GOP Sheriffs candidates for a similar arrangement met with skepticism from the commissioners court who would have to find the money to pay for extra bed space. Said Commissioner John Wiley Price, according to the Dallas News, "I don't need anything that's going to increase the jail population."

In Austin the debate has devolved into accusations of whether this practice constitutes racial profiling. To me, that's not nearly as strong an argument as emphasizing the immediate, pragmatic issue that none of these jails - in Austin, Dallas or Houston - have any extra space for uncompensated federal prisoners.

It's one thing to suffer a jail overcrowding problem because of the decisions of the local judicial system; it's quite another for Sheriffs to seek out new categories of optional inmates to fill up their jails volitionally.

Propose Jail Diversion Resolution at Local Precinct Conventions

With Texas in play this year in the presidential primary, the fight for Texas' delegates will include precinct convention-level battles that will mark many people's first interaction with the nuts and bolts of a political party's internal process.

Over at Burnt Orange Report, Mark Camann has a nice post describing the process of proposing a resolution at your party's precinct convention. I'd mentioned over the weekend that this year, at least on the Democratic side, committed voters can register their preference twice - once at the ballot box and once on election night at their local precinct convention.

The resolution process is pretty much the same in both parties. Anyone who voted in the primary from that precinct can bring a resolution to the convention (held when the polls close at the location where you voted), and if a majority there support it, the resolution will be recommended to your county party for inclusion in the state platform.

For obvious reasons, resolutions submitted in multiple counties and/or senate districts have a better chance of making it all the way into a party's platform.

Several draft resolutions were suggested in the BOR comments, but none on criminal justice issues. So as a thought exercise, I took Camann's template and created one on prison and jail diversion. It's suitable for presentation when you go to your precinct convention. Let me know what you think:

RESOLUTON CALLING FOR PRISON AND JAIL DIVERSION

WHEREAS Texas prison and jails are full everywhere in the state, costing taxpayers' billions of dollars;

WHEREAS Texas cannot hire enough guards to staff current prisons, even when money is budgeted;

WHEREAS the majority of people in county jails have not been convicted and are only in jail because they cannot afford bond, and the majority of people in prison are non-violent offenders;

WHEREAS 30% of Texas prison inmates are prior clients of the state's indigent mental health system;

WHEREAS 70,000 offenders leave Texas prisons and re-enter our communities every year;

WHEREAS the state of Texas incarcerates a higher percentage of our citizens than any totalitarian dictatorship on the planet; and

WHEREAS 90% of Texas' corrections budget is spent on operating prisons holding 155,000 inmates, while just 10% is spent on less expensive community corrections departments, which supervise more than 500,000 people combined on probation and parole;

BE IT THEREFORE RESOLVED that the Texas Democratic Party encourages the Texas Legislature to stop building expensive new prisons and instead expand funding for community corrections, including drug and alcohol treatment, drug courts and mental health services;

BE IT RESOLVED that the Texas Democratic Party encourages the Legislature to support shorter, stronger probation that gives offenders a real chance to earn their way off of supervision early through good behavior and completion of required programming;

BE IT RESOLVED that the Texas Democratic Party encourages the Legislature to fund all programming it requires of offenders so they don't take up prison space while on a waiting list, particularly for mandatory drug and alcohol treatment in adult prisons;

BE IT RESOLVED that Texas must fund mental health assessment for the mentally ill in county jails, competency restoration for the mentally ill who have committed serious offenses, and alternatives to incarceration for people whose mental illness is their primary reason for landing in jail, wherever practical;

BE IT FURTHER RESOLVED that the Texas Democratic Party urges county governments to reduce pretrial detention for those who cannot afford bond, and adequately fund legal representation for indigent defendants.


Submitted to and Adopted by Precinct ____ in ________________ County, Texas, Senatorial District ___, on March 4, 2008.

___________________
Convention Secretary

Obviously on a bipartisan issue like prison and jail crowding, Republicans could change out the party names.

If you're going to your local precinct convention, consider taking this resolution and proposing it. If you do, let me know in the comments, and don't forget to come back and report the results. If you're going to show up anyway to support your candidate, you may as well make the most of it.

DMN reports TYC's Pope is out

I've heard rumblings all morning, and now The Dallas News is reporting that "Texas Youth Commission Acting Executive Director Dimitria Pope will either resign or be terminated by the end of the day, high ranking state officials said Monday."

I guess somebody finally gave her a push.

This is good news for employees and youth, but now the more difficult task of righting the troubled agency faces those who are left.

UPDATE: See MSM coverage from the Dallas News, the Houston Chronicle, the Austin Statesman, and the Fort Worth Star-Telegram.

Texas' Tulia Lesson: Dems Should Join GOP in Abandoning Failed Drug Task Force Strategy

Several recent bits of news remind us (reflectively, if not nostalgically) of Texas' defunct system of drug task forces, the most famous of which was the one in Tulia, where 39 people were convicted on the uncorroborated testimony of a single, rogue undercover cop, Tom Coleman. Eventually most were pardoned by the Governor and Coleman was convicted of perjury.

Most recently, Coleman's perjury conviction was finally upheld by Texas' criminal courts, Kuff informs us, declaring rightly, "I presume this will be the last we hear from Tom Coleman for awhile, at least until the Tulia movie hits the screens."

The Tulia episode began a multi-year saga whereby the Department of Public Safety tried to take over management of Texas' task forces, but failing to gain compliance with new rules, the task forces proved unmanageable. Finally, in 2006, a re-election year, Governor Rick Perry pulled the plug on this dysfunctional system, shifting money from regional task forces to give grants to border sheriffs in an homage to his conservative base on immigration and "terrorism."

The lesson from Texas was that these task forces were virtually rogue (or certainly unaccountable) by nature. Imagine a nightmare bureaucracy that's federally funded, locally staffed, and managed by the state! The people who manage don't hire and fire; the people who hire don't manage, and the people who fund it all do neither; truly nobody had control of anything, and there was always some bureaucratic excuse why it was nobody's fault.

At their height, Texas had 51 of these odd, pseudo-entites employing around 700 officers with federal grant money. But Tulia wasn't just a Texas problem, these agencies are a source of scandal and a harbor for rogue officers nationwide.

Even those task forces that weren't rogue in Texas were almost exclusively focused on low-level transactions and large-scale sweeps of users. Partially as a result of task force abuses, the Texas Department of Public Safety changed its own rules governing its Narcotics Division to give "no priority" to arresting users and focusing investigations on "Drug Trafficking Organizations" made up of five identifiable conspirators or more. As a result, though DPS drug arrests declined 40%, they got "bigger fish" and captured more than twice as much dope in the first year of the new strategy - this at a time when overall US drug seizures were declining.

When Gov. Perry abolished the last of Texas' drug task forces two years ago, law enforcement interests predicted the sky would fall. But you know what happened? Nothing, or at least nothing bad. Some agencies that participated in abolished task forces found they made more drug arrests than before! (Whether the money's new recipients - Sheriffs participating in "Operation Linebacker," "Wrangler," "Rio Grande," etc. - have used the money in ways that reduced crime is another matter.)

In Washington, in his final budget, President Bush continues his years-long drive to de-fund these task forces at the national level, convincing Congress to slash last year's funding for these grants by 2/3. As in years past, it's the Democrats who are up in arms. Drug War Chronicle has good coverage of the D.C.-side politics of cutting these funds.

As happened when Perry eliminated Texas' regional drug task forces, we see local headlines cropping up around the country like, "Authorities fear rise in drug trade if federal funds are cut," or "Drug war at a crossroads," hyping the drug problem as though failing to dole out these pork barrel grants were the equivalent of failing to provide combat troops with body armor. Just like in Texas, though, those other states will find that locking up scores of low-level drug users without treatment or rehabilitation services wasn't making them safer.

Somehow we must get the message to our brethren states: Not only will the sky not fall if you get rid of regional drug task forces, you'll probably be better off.

Insider baseball, venom in TYC debates harms others besides participants

The Texas Youth Commission posts on this blog have always drawn easily the most vociferous debate. I can't read every comment on Grits anymore, though I try to enforce two comment rules: I delete outright libelous comments when they come to my attention, or those which make personal attacks without engaging in any argument. But any reader knows that leaves a WIDE range of strongly held opinions that I typically allow to run free:

This comment showed this morning on an older post, reacting to recent media attacks and more specifically to rude and indignant blog comments about the new TYC conservator:

I am a social worker who has spent my whole adult life working for children and families, trying to make a difference in the lives of those less fortunate. I was married to Richard Nedelkoff for 16 years specifically because I saw in him the passion to help people all his life. He didn't take the easy way out and become an attorney when he could have. He has dedicated his life to helping youth and families and has made a huge impact in many different states. I have two wonderful children who have had to move all over the country, give up friends, deal with new schools, and start over because of their father's commitment to helping youth. We are not rich and have struggled our whole lives but we both feel we have made a difference. Though we are no longer married I still have great respect for Richard and know him to be a honest and forthright leader who cares about his staff and the kids. Please don't get caught up in the political circus and ruin a good man's reputation. Please remember his 16 year old daughter who still feels she can make a difference in the world and his 12 year old son are reading the newspaper. Please don't get sucked in to the politicians web of destruction. Change is difficult, but if you ask the staff of TYC they all believe that change needs to happen at the dysfunctional agency. Please be careful in biting off your nose to spite your face. Richard is already making important changes at TYC. Please do not ruin a good man's reputation and destroy two children just for the sake of a story. Please make sure you have ALL your facts straight.

Sincerely,

Kristen Nedelkoff

Good advice all the way around.

For TYC blog commenters, in particular, let me add, "what she said." And not just regarding Richard Nedelkoff. I've deleted comments about Dimitria Pope several times that went WAY over the top, and given the kind of thing I let go, that's saying something!

But a recent email exchange with a capitol beat reporter reminds me it would also behoove professional media to carefully heed her admonishment, "don't get sucked in to the politicians web of destruction."

A prime example has been the Austin Statesman's Mike Ward's coverage of alleged conflicts of interest by Nedelkoff with his now-former employer. Senate Criminal Justice Chairman John Whitmire has been acting executive director Dimitria Pope's most vocal and strident champion, and now that she's not going to be the permanent executive director, the Chairman has taken to attacking Nedelkoff in the press.

First we get complaints that the conservator plans to raise the salary of the new executive director to attract national-level talent. Personally I'm thrilled with that news - I don't know how you'd get anyone worth a damn to take the thankless job, which must be now the highest profile agency head in the state.

Whitmire, who Ward calls a "close friend" of Ms. Pope, says he's "seriously concerned" about the decision to (possibly) increase the salary of her successor. I'd wager, though, that if Chairman Whitmire took the job managing TYC at $160,000, the high end of the proposed range, he'd have to take a pay cut.

Next came complaints from the Dean of the Senate that Nedelkoff had not severed ties to the firm Eckerd Youth Services, where he'd worked for less than a year before taking the TYC gig, and was bringing in temporary assistants who worked for the state of Florida, which contracts with Eckerd. So Nedelkoff resigned his private sector job to avoid any "appearance of impropriety," after which Ward published another Whitmire broadside:

Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, said Nedelkoff's resignation will not resolve the concerns.

"By leaving, he's almost raised more questions — like does he plan to go back to Eckerd, does Eckerd now plan to do business with Mr. Nedelkoff's agency, things like that," Whitmire said. "It's what I don't yet know about all these relationships that concerns me the most."

Whitmire, co-chairman of a special legislative panel overseeing Youth Commission changes, said he intends to investigate the deals further in upcoming legislative hearings. "And I'm sure the (legislative committees) in Florida are going to be just as interested in all this as we are," he said.

Apparently the Chairman (and hence Ward) literally cannot be satisfied: He's unhappy because Nedelkoff didn't leave his old job, then wants to conduct an investigation when he does. Damned if you do and damned if you don't.

Ward and Whitmire are fast becoming like a tag team for generating negative stories about the new conservator's personnel decisions. The reporter I mentioned opined that Ward's recent coverage amounted to "irresponsible journalism" that does a "disservice to the public," declaring "First Whitmire wants him to quit. Then Whitmire says his quitting raises new questions. And Mike Ward laps it all up." I'd earlier called Whtimire's criticisms a "cheap shot." My reporter friend felt even more strongly, declaring "it makes me OUTRAGED."

If there's a media-worthy story here, it's that the senator is retaliating against the conservator for failing to hire his close friend as the permanent executive director, a job for which she applied but was informed she would not receive. So he launches these specious attacks.

Just over a month ago at the dawn of the new year, I wrote that everyone in the TYC saga should resolve to "take a deep breath" and give the new conservator a chance to get his sea legs. It's time to renew that resolution. Thanks to the conservator's ex for reminding us that the viciousness that characterizes modern politics harms more than just those at whom we aim our venom.

Texas presidential primary relevant for first time in years: Huckabee, Obama best candidates on criminal justice reform

I don't talk much about national elections on this blog, but in this astonishing political year it appears that, for the first time in my adult lifetime, the presidential contest will still be in play in both primaries when Texans get to vote.

On the Republican side, Mike Huckabee told Stephen Colbert the other night that he believed he could win Texas to make a comeback victory against John McCain. And Democrats Hillary Clinton and Barack Obama are famously in a neck and neck delegate fight, with the race likely to be decided the day that Texas, Ohio and Pennsylvania go to the polls.

On the Democratic side, where Phillip Martin Burnt Orange Report has done an admirable job explaining the delegate allocation process, in essence if you're really committed, you get to vote twice on election day. The majority of delegates are decided by voters, but another portion will be decided at caucuses, which are based on who shows up at precinct conventions on the evening of the vote.

Have you ever been to a precinct convention? More folks have attended them on the GOP side because that was the mechanism by which the religious right took over the Republican party in the early '90s.

Essentially, on election night while votes are being counted, you go back to the same place where you voted and attend the "convention" for the precinct where you live. Whoever shows up (who voted in the primary that day) is eligible - though I'll bet they're more crowded this year, the last time I went there were five of us, and two were my wife and me. The precinct convention appoints delegates to the county convention. They also may suggest and vote on resolutions proposing language for the party platform. So if you're voting in the Democratic primary, take the time that evening to go back and support your candidate at the caucuses.

Who are the best presidential candidates from a criminal justice policy perspective? Usually crime and punishment doesn't have a partisan split: Generally both parties compete to see who can be worse, while champions of reform crop up on both sides of the aisle, and that's as true as ever in this presidential election season.

On the GOP side I think Mike Huckabee is the clear choice. According to this article in Salon, after a Willie Horton-esque parole incident:

He has refused to take the predictable path by talking tough on crime to deflect the DuMond criticism. Instead, he campaigns on a compassionate approach to wrongdoers, especially those whose crimes are the result of drug or alcohol addiction. At Philly's Finest, he condemned the "revenge-based corrections system," sounding every bit the sort of squishy liberal that the Bill O'Reillys of the world long ago scared into the shadows. "We lock up a lot of people we are mad at rather than the ones we are really afraid of," he said. "We incarcerate more people than anybody on earth." As governor, Huckabee pushed for drug treatment instead of incarceration for nonviolent offenders. He pushed for faith-based prison programs, and was critical of governors who "gladly pull the switch" on death penalty cases, an apparent knock on President Bush, who was criticized as governor of Texas for being cavalier about capital punishment.

On the Democratic side, Barack Obama is the clear choice from the perspective of criminal justice policy. On Hillary Clinton, to be sure, I'm judging her in part on her husband's record, but that's a great deal of the "experience" the one-term senator brings to the table. The Tulia-style drug task forces that still dot the country (but which President Bush has finally, nearly de-funded, as Gov. Perry did here in Texas), in my mind represent the legacy of Clinton's numbers driven, pork-barrel approach to crime fighting.

More than that, though, on the campaign stump she's come out to the right of Antonin Scalia on sentencing issues, bashing Obama for his opposition to mandatory minimums.

By contrast, Obama favors some radical refashioning of marijuana laws, and thinks illegal immigrants should be able to get drivers licenses to improve security and road safety. His campaign rhetoric gives cause for criminal justice reformers to share in the "hope" his campaign slogan proffers, as well as his votes in the Illinois state senate, where he passed racial profiling legislation and opposed lengthy criminal penalties. An Illinois lobbyist for the police chiefs said that "while Obama did at times vote on the side of “individual rights … [rather] than the ability of law enforcement to get things done,” he was always an independent vote who was very thoughtful on law-and-order issues."

Hardly anyone votes for President based on a single issue, but if you were a single-issue voter on the subject of reforming our dysfunctional criminal justice system, Huckabee and Obama are your guys, at least among the options left standing.

RELATED: See this Burnt Orange Report post on proposing issue resolutions at your precinct convention. UPDATE: See this Grits post suggesting a resolution supporting prison and jail diversion.

NRA selling out gun rights of felons: Claims 70,000 Texans exiting prison each year are not "people"

Sometimes even "purists" advocate civil liberties for me but not for thee, and that's even more often true of the Second Amendment, the always controversial "right to bear arms."

The NRA calls itself "the oldest civil rights organization in America," but Doug Berman at Sentencing Law and Policy calls a spade a spade in assessing the purity of the National Rifle Association's Second Amendment stance when it comes to felons: They're "sell outs." He writes:

Though perhaps other supporters of gun rights do not sell out felons, I was especially interested to see that the National Rifle Association's brief, which describes the NRA as "America’s foremost defender of Second Amendment rights" readily concedes that "laws barring [any gun] ownership by convicted felons" would pass its proposed Second Amendment test.

As I have highlighted in prior posts, there are lots and lots of folks with felony convictions — such as Martha Stewart and Lewis Libby — who might want and need to have a gun for self-protection. Nevertheless, while the NRA claims to be the foremost defender of the "human, civil, and constitutional rights of the individual to keep and bear arms in a free society," the NRA is still content (and even seems eager) to concede that once convicted of any kind of felony, any and every person loses forever these "human, civil, and constitutional rights."

Though I've worked with the NRA in Texas on other gun rights issues, I disagree strongly with their stance here: If you're going to insist that the Second Amendment applies to individuals (and not just as part of a "militia"), it's hypocritical to pick and choose to whom the state extends a particular constitutional right. In an earlier post on the subject, Berman reasoned:

Notably, the Bill of Rights uses the phrase "the people" in four other Amendments (the First, Fourth, Ninth and Tenth). I have never before heard a claim that all convicted felons are categorically denied the individual rights protected by all these Amendments.

In Texas, 70,000 felons leave state prisons every year. Most, if you asked them, would consider themselves "people," as would an objective observer. But apparently they're not "the people," at least as the NRA defines them under the Second Amendment. Berman's right to call "BS."

If gun rights advocates want to claim "the people" retain the "right to bear arms," those rights cannot be reserved to different "people" than those to whom the document elsewhere refers.

State Rep. Terri Hodge likely headed back to Austin

Over at the Texas Observer, Jason Johnson has a story about the dead-certain re-election prospects of state Rep. Terri Hodge, a Dallas Democrat who has been indicted on federal bribery charges but who drew no Democratic nor GOP opposition in her South Dallas district.

Except for Elise Hu at KVUE, who got out her ten foot pole to explore the touchy topic last month, and a few conservative bloggers asking where are her liberal critics, both the Democratic Party and the blogosphere have been surprisingly silent on this subject (except to solicit legal defense funds), particularly when compared to the reaction after the Harris County DA's embarrassing emails were recently revealed - the party basically hounded him out of the nominating process, then called on AG Greg Abbott to launch an independent investigation.

Why didn't Hodge draw an opponent? Dallas News political writer Gromer Jeffers told Hu that "even though the lege has a good retirement plan, the prospect of that kind of low pay and devoting that time in Austin isn't really appealing for prospective candidates." To hear the Observer tell it, though, it's "the loyalty factor," resulting from years of diligent constituent service.

An anonymous constituent told the Observer what's probably the most important reason Hodge drew no opposition: “She’s not going to go down meekly. She’s going to go down swinging.” Potential opponents likely thought it would be easier to let the prosecutors take her out.

After Charles Chatman's exoneration last month, Rep. Hodge attended the court proceedings, spoke to the press, and "promised unspecified reforms when the Legislature convenes in 2009." That doesn't sound like a woman who plans on going anywhere soon, does it? So unless federal prosecutors have something to say about it, it sounds like we'll see Rep. Hodge back in Austin in 2009.

Like several others quoted in the Observer story, I respect the work Terri Hodge has done on many issues that concern this blog, and that history causes me to give her some benefit of the doubt. OTOH, the US Attorney has accused her of accepting free rent from a developer for whom she did political favors. If those charges are true and she makes the feds go to court to prove it, she's quite likely to head to prison, and I don't think the federal guidelines are too generous concerning bribery of public officials.

Hodge has never answered these allegations either in the press nor to my knowledge in any court proceedings. So more than two years after the charges surfaced, we still don't know her side of the story. Apparently neither media attention nor the electoral process will cause her to explain the alleged illegal rent payments, nor why she failed to report them to the state ethics commission. You just don't get to do that; I don't care if I do agree with much of your voting record.

The Observer story doesn't tell us whether the feds will take her case to court before the 81st Texas Legislature in 2009, but that's the $64 question. Otherwise, she'll be back in Austin next year, and competing with an always-crowded field for the "most scandal-plagued legislator" at the capitol when she arrives.

BLOGVERSATION:

• Unfair Park
• Common Sense and Wonder
• Urban Grounds
• DallasBlog
  
• Michelle Malkin

For those interested here's a copy of the indictment (pdf, 166 pages).

Fabelo: Texas jail growth outstripping prisons

Dr. Tony Fabelo, Texas' premier criminal justice statistician, has been a busy man lately, including serving yesterday as the featured speaker at the Bexar County jail overcrowding symposium. He's put a copy of his presentation online, entitled Managing Jail Population Growth in Texas: The State and Local Challenges.

A few highlights:

Between 2000 and 2007, Texas rate of incarceration in prisons actually declined by 9.4%, while the rate of people incarcerated in county jails rose by 4.3%. (Slide 19) This was a period of major population growth and declining crime, so for jails' rate to continue to rise over that period is pretty significant.

Incarceration rates in the largest counties over the same period varied widely, indicating that the actions of local decisionmakers accounted for much of the variation in outcomes. Here are the changes in jail incarceration rates between 2000-2007 for Texas' five largest counties (Slide 20):

• Harris: 15.72%
• Dallas: -13.46%
• Tarrant: -6.02%
• Bexar: 7.54%
• Travis: -15.08%

Fabelo corroborated my assessment earlier in the day that pretrial detention is driving county jail growth. While overall jail population increased 18.6% between 2000-2007, he said, the number of pretrial detainees increased 49.2% over the same period. (Slide 21)

He pointed out that more than 13,000 jail beds are either currently planned or under construction, but said he didn't see the need for them based on crime patterns. (Slide 27)

See his whole presentation, the first part of which included a summary of legislative actions in 2007 that affected jail crowding. Also check out more of Fabelo's Texas' related research at the Justice Center website of the Council of State Governments.

Not the preferred solution to jail overcrowding

The Jim Hogg County Jail in Hebronville has room for 18 people in it, though there were only 10 as of January 1, 2008. One of them, though, was 24-year old convicted rapist Abel Morin, who escaped out an unlocked door while being transferred between cells less than 24 hours after he was sentenced to life in prison.

Bizarrely, Morin was convicted in Duval County, but had been moved to Jim Hogg County because he complained about the food! Doesn't everybody complain about jail food? There are literally no incorporated towns in Jim Hogg County, including the county seat! So the Sheriff's Department is it as far as law enforcement goes. But even if your jail's the size of the one in Andy Griffith's Mayberry, there's a minimum level of professionalism required if you want to actually operate a law enforcement agency. In this case, apparently one lone jailer was on guard, and watched helplessly as the unshackled convict ran out the door. This is NOT the preferred solution to jail overcrowding.

Pretrial detention, unnecessary incarceration driving Texas jail overcrowding

The topic of the panel I presented on at yesterday's jail overcrowding symposium in San Antonio was "Who are in county jails and why?," and a significant part of my own presentation focused on excessive pretrial detention. I'm in the process of expanding this research into a longer, footnoted paper, but for now here are some excerpts on the subject:

The biggest single reason for jail overcrowding: Put simply, more Texans are incarcerated pending trial, i.e., before they're convicted, than at any time in history.

An analysis by Grits of data from the Texas Commission on Jail Standards found that despite declining crime over the same period, county jail populations increased 27% between 1995 and 2005. Almost all of that increase stemmed from more frequent detention of defendants before trial. In other words, there are many more defendants who can't make bail these days in county lockups. Particularly for misdemeanants, just a decade ago many of those defendants would have been released on personal bond so taxpayers wouldn't pay to house them.

These trends represent harsher decisions by judges about when defendants should be released on bond -- another case where being tough on crime amounts to being tough on taxpayers, with little identifiable public safety benefit. A decade ago, pretrial defendants made up 30.3% of the statewide Texas jail population. Today the number is more than half, at 53%.

What does that mean to the average defendant? Judges are more likely to require them to put up bail than ten years ago, when more low-level offenders would have been released on 'personal bond,' or a 3% bail fee and a promise to appear. Now if they can't pay, more defendants just sit in jail awaiting trial.

With so many jurisdictions operating local lockups that are bursting at the seams, it makes little sense to continue the trend (unless, perhaps, you're a bail bondsman). Here are the incarceration rates for pretrial detainees at Texas' largest county jails:

What percentage of Texas county jail inmates are awaiting trial?
In 1995, just 30% of Texas county jail inmates statewide were incarcerated awaiting trial. As of January 1, 2008 that figure had risen to 53%. In many counties the figure is much higher:

County	Total percentage pretrial defendants	Misdemeanor and state jail felony pretrial defendants
Statewide	53%	10%
Bexar	58%	21%
Dallas	67%	15%
Harris	56%	12%
Tarrant	61%	18%
Travis	65%	24%

The same pattern repeats itself around the state in jails big and small. Pretrial detention decisions by judges drive most local jail overcrowding problems.

There are few substantive barriers to solving the problem, only ideological ones. One year ago Nacogdoches County had to ship prisoners to other jurisdictions because of overcrowding, but has eliminated its problem entirely by reducing pretrial detention. County commissioners invited USDOJ consultants to assess their situation, and DOJ “told commissioners the jail was being 'over-used,' and that more innovative programs could be implemented so that non-violent offenders 'never occupy a bed in the jail.'"

In response, over the past year Nacogdoches has been doing just that. As of the most recent monthly jail population report, their 292-bed jail was less than 2/3 full. In December 2006, a whopping 68% of the Nacogdoches County Jail population was made up of pretrial offenders; by January 1, 2008, that number had declined to just 34.5% of the jail population.

(I had a chance to speak briefly with Nacogdoches County Judge Joe English at the event who confirmed that their once full jail now had more than 100 empty beds! He said that public meetings where the DOJ consultants focused on pretrial incarceration decisions by judges caused the local judiciary to rethink its bonding policies. I'll be following up to get more detail about exactly what they did there and how they went about it - that's a real success story)

That same jail overcrowding solution will work for nearly every jurisdiction in Texas with full jails. If Bexar County, for example, could lower its percentage of pretrial detainees to 34.5% from the current 58%, it would reduce the jail population by 935 inmates, eliminating the short-term crisis entirely.

A county sheriff pulled me aside later to agree with me, and said he believed that too many judges these days were improperly using bail as punishment, which I thought was a good point. There must be some motive that explains these numbers, and that fits as well as any.

Tyler District Judge Cynthia Kent reacted negatively to my comments in the following panel, claiming that when she'd tried to use more personal bonds in her own court, 70% of defendants didn't show back up! However, I've reason to think that figure is inaccurate or skewed. Another conference participant leaned over to me at that point and declared that he previously ran a federal pretrial services division where use of personal bonds is much more widespread. He told me his division experienced around a 5% no-show rate (making me think I need to learn more about the federal pretrial system to see what can be adapted for local use). In Harris County, those deemed lowest risk by pretrial services have about a 3% no-show rate.

Speaking to Judge Kent later, it turns out that their local District Attorney stridently opposes creating a Pretrial Services division in Smith County, which means that there's literally no infrastructure there to support the use of personal bonds. Even so, county officials still want to build a bigger jail! If it were me, I'd invest in a new pretrial services division long before I spent money on bricks and mortar. (UPDATE: A commenter tells me Smith County DOES have a pretrial services division, it's just unpopular with judges and other local officials.)

The other big focus of my talk was the large number of mentally ill people filling up local jails, but the truth is solutions to that problem are more difficult to come by and likely will arrive much farther in the future. Reducing pretrial detention is a solution that can work today, immediately. For county officials looking to solve a short-term jail overcrowding crisis, there's little doubt this is the quickest, least painful solution. The question really is not can they solve the problem, but are local judges and county officials willing to do so?

RELATED: See coverage of the event from the SA Express News, which included this graphic:

Acting E.D. Dimitria Pope one "push" away from leaving TYC

After Texas Youth Commission conservator Richard Nedelkoff deflected questions over the fate of acting executive director Dimitria Pope on Wednesday (I had to leave before this point in the hearing), Pope herself told the House Appropriations Criminal Justice Subcommittee that she was not under consideration for the permanent position.

Seeing that news, I'm now certain the wind in my face when I stepped out of the hotel in San Antonio yesterday morning surely resulted from a collective sigh of relief by several thousand TYC employees and their families around the state.

It appears, though, that Ms. Pope will not go gently into that good night, telling the committee according to the Dallas News, "I am the stabilizing factor of the TYC," she said. "I intend to be until I'm pushed out the door."

It requires tremendous hubris to say such a thing sitting next to your boss at a legislative hearing after he's just (rightly) refused to air your dirty laundry. Clearly the conservator has already shown her the door, but Ms. Pope is publicly vowing to make him "push" her through it. It almost sounds like a dare.

In related news, Nedelkoff resigned his position at Eckerd Youth Services to focus on the TYC conservatorship full time and avoid any "appearance of impropriety." Good for him. It's too big a job to do part time, anyway, and Nedelkoff was going to keep taking shots for holding down both jobs.

You can tell he's elbow deep into things when he referred to the reform process as a "fray" in which he personally has "everything to lose." Clearly he intends to become "the stabilizing factor" at TYC.

Transportation, Employment and Re-Entry

I'm back home from a symposium in San Antonio with lots of thoughts running through my head (even more than usual) about jail overcrowding problems and solutions that will likely play out on the blog in the coming days and weeks.

First off, thanks to Bexar County Commissioner Tommy Adkisson for inviting me and many kudos everyone involved in putting on such a useful colloquium - it was really an impressive, educational event, and a lot topics and solutions were discussed that rarely receive such particular attention. (If you attended, say hello in the comments and let me know what was the most interesting thing you learned there.)

While I'll have more to say about the event in the morning, I wanted to record some thoughts that particularly struck me on the subject of transportation. Nobody at the event had a good solution, but folks from several different counties identified the same problem.

On the panel about "re-entry" and in response to a question I asked as a followup, there arose an interesting discussion of how transportation was a particular barrier to re-entry for people leaving prison. Transportation for those just out of prison may be a bigger barrier to re-entry, even, than getting a job in the first place, one panelist said. The re-entry coordinator for Tarrant County said that because it's more difficult for people with criminal records to find a good job, their entry-level positions often turn out to be on the night shift after the buses stopped running. I'd never thought of that, but I'll bet it's disproportionately true among offenders at the macro-level.

Tyler District Judge Cynthia Kent mentioned that their incarceration alternative program helped people with suspended drivers licenses get refurbished bicycles to get to and from work. I thought that was a neat idea, but what's possible in Tyler wouldn't always work in a bigger city. You can't ride a bike on Interstate 35 or MoPac.

Bexar Commissioner Tommy Adkisson suggested a deal could be struck with the local transit agency to get free bus fare; Bexar County negotiated such a deal for its own employees to reduce car trips downtown, he said. But again, that doesn't help when the buses stop running.

One thought that occurred to me on the drive home: In Austin, our transit service CapMetro already has special vehicles that can be called to the home of the disabled for pre-arranged personal service, so it's possible some system could be established to do the same thing for people on probation or parole who had jobs that ran past the bus schedules - certainly it's something worth thinking about. (It might be expensive but it's still cheaper than jailing them because they lose their job and sell drugs to buy groceries.)

Darla Gay of the Travis County District Atttorney's office said that the Austin Re-Entry Roundtable had considered (but not implemented) an idea to ask churches, many of which already have active prison ministries, to use church buses to help give rides to offenders. That's a creative idea for a public-private partnership, but it'd sure be tough to coordinate, particularly if it only used volunteer drivers. This seems like a government function that might benefit from private partnerships, but should not be relegated to them.

There was another interesting moment (to me, anyway) when discussing employment of ex-offenders; Gay asked the audience how many of them made hiring decisions in their organization, and quite a few raised their hands. Then she asked them how many of them ever hired formerly incarcerated people at their agencies, and nearly every hand went down. The implication, clearly, was that if government wants people leaving prison to get jobs and become productive citizens, perhaps it needs to put its money where its mouth is and hire more ex-offenders for government jobs.

Gay added that although "violent" offenders are the ones people are most loathe to hire, from a public safety perspective they're the ones who, once they're out of prison, it's perhaps most important to ensure they can get a job and support themselves. That's a damn good point.

Gay advocated the idea of "banning the box," or removing the checkbox from employment applications (on a voluntary basis, not by statute) that ask whether the applicant has previously been incarcerated. The chair of UTSA's Criminal Justice Department piped in to add that Florida had passed a law (this is his say so - I want to look into it further but know nothing about it), that disallowed employers asking about past incarceration, but mandated disclosure by the employee on the 31st day of employment. The idea is to have the employer take into account the employees skills, qualifications and job performance BEFORE taking into account the criminal record. That's not quite banning the box, just delaying it, but I'll be interested to learn more how it works and what have been the results.

More soon, but I really enjoyed the event and meeting lots of new people. Thanks to everybody who made the trip a pleasure.

I'm outta here: Grits to speak at SA panel on jail overcrowding

I've got to leave soon for San Antonio where I'll be participating on a panel discussion tomorrow on the subject of who is in county jails and why, a frequent topic of discussion on this blog. I'm excited about the chance to speak to a couple hundred practitioners on the subject.

One unhappy consequence, though, is that I can't finish listening to today's Appropriations Subcommittee hearing on TYC. Those of y'all who attended or watched the whole thing, be sure to update the rest of us in the comments as to your impression and what happened that was important or new.

Otherwise, use this string as an open thread to let us know what criminal justice topics you've been watching recently that I may not be paying close enough attention to on Grits. I'll be back in the saddle tomorrow, probably (maybe sooner than later depending on WIFI access).

Pope tells Lege Will Harrell's solitary confinement criticisms ill-informed

TYC acting executive director Dimitria Pope claimed today at a legislative hearing that allegations by TYC Ombudsman Will Harrell about overuse of solitary confinement at the agency were simply erroneous, and implied he might have even lied about visiting the Mart facility (he "supposedly" visited the unit, she said). Chair Sylvester Turner interrupted Ms. Pope to ask Harrell to defend his position in the face of her criticisms, and I thought he did a good job.

From what I've seen of the BMP program, where kids are kept in setting that differs little from a straight-up dungeon - Will probably went light on the agency in his report. Perhaps predictably, Ms. Pope blamed her employees for poor record keeping but said no policies were violated.

Given that the federal government named the Behavioral Management Program (the euphemism for solitary confinement) as one of the problems that necessitated the proposed "Agreed Order" announced this week, it seems unlikely that the program is working as well as Ms. Pope portrayed to the committee.

By the Numbers: LBB gives budget overview of TYC's difficulties

Here are some notes from the presentation to the House Appropriations Subcommitee on Crimional Justice by Angela Isaac, an LBB Analyst for TYC and juvenile probation. (She had a handout of which I'll try to get a copy.)

TYC has a budget of $452.7 million for the biennium, she said, and $450.7 million of that comes straight from General Revenue. At the moment about TYC incarcerates 3,300 youths, she said, but Isaac's data tells me to expect that figure to decline even further.

Assumptions underlying the agency's current budget anticipated substantial reductions in the inmate population through closures and reduced size of some facilities. Agency is appropriated for a total of 2,292 beds in institutions, 218 in halfway houses, 641 in private facilities, for a total of 3,151 youth. (I've argued that understaffing will cause them to push that figure lower; I don't think enough staff can be hired to keep up a 12-1 ratio for 3,151 youth, particularly if the feds actually force them to meet that ratio without juggling the number.)

Isaac said (publicly for the first time, as far as I know) that this biennial budget imposed funding reductions based on an assumption of a whopping 1,496 decrease in institutional beds and 1,241 FTE reduction - i.e., firing 1,241 workers. Many are already gone, but that still means more staff reductions are planned.

In addition, TYC's total institutional bed count will reduce by another 456 beds because of renovating open bay dorms into single cells..

All this collectively amounts to an estimated 32% reduction in the number of inmates in Texas youth prisons from 2006 levels, and a 36% reduction in the number of JCOs - I'd never understood the new budget anticipated cuts that drastic.

The youth who would have been in TYC in the past just become the counties' problem - counties received some new money for that, but likely not enough to cover as many youth as Ms. Isaac described.

On the JCOs 12-1 staffing ratio: The Lege approved funds for more than 500 new JCO staff, last yeasr, but those remain unfilled. The agency reports they're meeting or nearly meeting staffing levels, but there have been allocations they're counting caseworkers and other non-JCO employees to get to that number.

TYC has 2,238 JCO positions filled, leaving 538 budgeted slots unfilled. Meanwhile the turnover rate for JCOs remained an astonishing 49% in 2007. Rep. McReynolds questioned why the turnover rate was so high, and whether it resulted from SB 103 and the Legislature's changes.

While many Grits readers have been concerned with possible shift to contract care, Isaac reports that TYC budgeted for 641 contract beds, but only leases 303 beds right now.

Here's a story that's not been publicly told before about the lethargic response by the agency to improve health care for youth. The Lege appropriated $44.2 million for health and psychiatric care, said Isaac, however nineteen new FTEs were funded for providing additional oversight for inmate health care, but as of right now none of those positions have been filled.

Next up are conservator Richard Nedelkoff and acting executive director Dimitria Pope. Sylvester Turner tried to pin down Nedelkoff on whether Dimitria Pope would remain executive director, but Nedelkoff said he'd prefer to discuss the matter privately, deflecting the question fairly admirably. Turner made it clear, though, that he'd like see an announcement very soon, and he "doesn't want to spend a lot of time" talking to Dimitria Pope if she won't be there next week. Nedelkoff didn't budge though. Looking at the discussion overall, though, I'd still bet her days are number.

More soon. If you're watching the hearing, let me know your thoughts in the comments.

Sheriff disingenuous to claim no cost for jailing immigrants

County jail overcrowding, meet immigration hysteria.

Even though Harris County Sheriff Tommy Thomas' jail is so overcrowded they must ship 600 inmates at a time to Louisiana to meet staffing requirements, he's proposing that his deputies be trained to use federal "287g" authority to identify and detain illegal immigrants in the county jail until they're picked up by ICE.

Houston Chron writer James Pinkerton tells us that there's "no charge to local law enforcement" to receive the training ("Immigration training for jailers draws praise," Feb. 6).

Well gee, that's nice. But there's a BIG charge to holding extra inmates in the local jail when it's already overcrowded! The county will have to increase staffing to pay for the extra beds, or else lease more private beds out of state. But Thomas apparently is doing this on his own, without going to the commissioners' court who will have to pay for the utterly foreseeable consequences. Not one word about jail overcrowding in the story, but to my mind it should have been the lede.

Pinkerton's article centers on whether the proposal is motivated by Sheriff Thomas re-election bid. I think the debate should center on whether it is unbelievably stupid given Harris County's jail overcrowding woes. OTOH, this must be election driven. Otherwise what in the world is the Sheriff thinking?

Youth Commission Roundup

Lots of action today on the TYC front:

Appropriations Hearing Reviews TYC Spending
The House Appropriations Subcommittee on Criminal Justice today at noon will hold a hearing to examine "implementation" of appropriations to the Texas Youth Commission. (Go here to watch the video live online at noon.) I've not spoken to anybody at the Lege about this, so I'm unsure what is the hearing's focus. It could well be in reaction to news that acting Executive Director Dimitria Pope spent unauthorized funds to refurbish her office, but there are quite a few other funding issues that deserve oversight. For example:

• Will it be possible for TYC to fill budgeted staff positions at current pay scales before the end of the fiscal year?
• TYC spent its two year budget for overtime in the first two months of the fiscal year, and is currently spending money budgeted for new staff to pay for ongoing overtime. At what point during the biennium will that money run out?
• TYC's current appropriation assumed the closure of some units. Which units currently in operation will close in 2008?
• How much money has been spent defending litigation against the agency by terminated employees, Advocacy Inc. over pepper spray, and other litigation initiated since the legislative session ended? Has the agency budgeted enough money for those expenses?
• Does the agency still intend to move 10-13 year olds to contract care, and if so when will that occur?
• How many contracts have been let by the agency since the end of the legislative session without competitive bidding - somebody needs to compile that list and vet it for insider deals like the Gregg Phillips fiasco.
• Abused youth identified at TYC last spring as suffering from post-traumatic stress disorder were only given counseling through the end of the fiscal year, then it was cut off at the end of August. Was that because no money was budgeted?
• TYC is about to sign onto an agreed order with the US Department of Justice Civil Rights Division that will require remediation of many areas of its operations. What are the portions of that agreement that will require TYC to spend funds not currently budgeted?
  

Add your own questions in the comments. Maybe some of them will get asked.

Weird Media Hit on New Conservator
Dimitria Pope's chief legislative champion took a shot across the new conservator's bow this morning in the Austin Statesman, where Mike Ward has an odd little story accusing the new conservator of dealing consulting contracts to friends. Reported Ward:

State Sen. John Whitmire — who is Criminal Justice Committee chairman and heads a special legislative committee with Madden overseeing TYC reforms — said the Florida consultants "raise serious concerns." Whitmire, D-Houston, said, "It looks like (Nedelkoff is) bringing in people who use his business."

My question: Where was Sen. Whitmire's indignation when Ms. Pope hired Gregg Phillips for a sweetheart consulting deal, or brought in a bunch of unqualified cronies from the adult prison system to replace managers who'd spent years at the agency?

Nedelkoff has already said his company will not be bidding on any contracts in Texas, so what does it matter if he brings in "people who use his business"? Seems like a bit of a cheap shot, to me.

More TYC-Related Headlines
While we're at it, here are a few more TYC related headlines that may interest Grits readers:

• Justice Department sues TYC, Evins facility
• State to settle suit over South Texas juvenile prison
• Detention center inmates climb to roof (with video)
• Three teens climb roof, refuse to come down
• Dallas forum aims to keep youth out of prison

Feds sue Youth Commission over Evins unit; Proposed agreed order would affect every TYC facility

From the "It's About Damn Time" Department, an alert reader emails to tell me that the feds have finally filed suit against the Texas Youth Commission in the Southern District. Judge Ricardo Hinojosa will preside in the case, which centers on the Evins Unit.

The litigation was brought by USDOJ's civil rights division, which for years under former AG Alberto Gonzales simply never pursued cases in Texas, so I'd attribute this case going forward, in part, to his departure. The named defendants are the state, Governor Rick Perry, Richard Nedelkoff, Dimitria D. Pope and Melody Vidaurri, who is superintendent at Evins, "and their successors, contractors and agents."

The litigation accuses TYC of failing to protect inmates at Evins from both assaults by staff and other youth, failing to provide inmates due process, and failing to provide rehabilitative treatment. If implemented, a full-time federal compliance officer would oversee the terms of the settlement.

Several of the proposed orders deal with use of force, physical restraints, and tracking of force incidents. Another would mandate adequate staffing, not just to supervise kids but to provide treatment. One of the remedies proposed would require "evidence based" changes to the notorious Behavioral Management Program (a euphemism for solitary confinement) and require regular access by BMP youth to mental health staff.

According to background in DOJ's proposed order, the agency began looking at the allegations raised in the complaint in June 2006. In March 2007 they issued a letter to TYC outlining concerns, but TYC did not accept their findings, so now nearly a year later they've apparently come to an agreement. Most of the changes in the proposed order, though, would affect every TYC unit, not just Evins.

This day's been a long time coming. After all the drama over the last year, this may just be the prequel to the real story of reforming TYC. At a minimum, the litigation should give conservator Richard Nedelkoff all the political cover he needs to bring the agency up to speed by negotiating high standards for the agency in the terms of any agreed order.

Posner gives conservative case for amnesty - it's just like snitching!

I don't say this often, but thank heavens for Federal Circuit Judge Richard Posner.

While in general I find Judge Posner's quirky economics in the "law and economics" field he helped establish a bit ham-handed and supply-sided for my own tastes, for good or ill he's an unabashed conservative, and on debates about immigration these days it's difficult to find actual conservative opinions because of so many nativist ones masquerading in conservatives' garb. Deportation is not plausible, he writes on his blog, because:

The United States does not have enough police and other paramilitary personnel, or sufficient detention facilities, to round up and deport 12 million persons (our prisons and jails are bursting with 2 million inmates), and even if it did, the shock to the economy would be profound, as the vast majority of the illegal immigrants are employed.

That's not a controversial comment on this blog, but it's nice to see him get reality out on the table up front instead of chasing phantoms, which is how much anti-immigration rhetoric strikes me. Posner considers much of the vitriol about immigration a product of

fear that immigrants from Mexico and Central America will alter American culture, which is still primarily northern European. The fear is similar to what many Americans felt about Irish and southern and eastern European immigration in the nineteenth and early twentieth century. The fear proved to be unfounded.

I was also fascinated to see the judge take on directly the idea that "amnesty" rewards crime, comparing the notion of all things to snitching in a criminal case. Yes, he said, "amnesty"

rewards illegal behavior. But that is something done all the time without controversy. A criminal who agrees to rat on an accomplice may be given a break in sentencing; that is the equivalent of rewarding an illegal immigrant for coming forward and paying a fine to regularize his status.

What's good for the goose is good for the gander, huh? As a critic of the overuse of snitching, I'm not sure how I feel about that argument, but it's fascinating to see it made. Here's an example where rewarding criminal informants has become so common and accepted, the practice actually sets a precedent in the mind of a federal appellate court judge for other situations where government rewards lawbreakers when it's deemed to be in the public interest!

Humorously, Posner thinks that the option of doing nothing poses "a number of attractions." His analysis shows why illegal immigration has evolved the way it has - our nation benefits in many ways from the status quo that are downplayed by immigration critics:

Most illegal immigrants are hard-working, many will return to their country of origin after accumulating some savings (but be replaced by others), most do pay taxes but do not receive social security and other benefits, they are less prone to commit crimes than the average American (the reason is that if convicted of a crime they would be deported after serving their prison term), and they consume less health care than the average citizen or lawful resident. Their children attend public schools, which increases the costs to taxpayers, but the parents compensate by working hard for wages that may be depressed because of an illegal worker's precarious status, paying taxes, and receiving few other public benefits besides a free public education for their kids.

As it stands, Posner reasons, illegal immigrants are essentially exploited workers, more exploited than the law allows businesses to exploit US citizens. If they choose to subject themselves to this status, perhaps it's best for the bottom line just to acquiesce in the status quo, at least from an economically conservative perspective.

To me, the public safety concerns from having millions of potential crime victims and witnesses who won't cooperate with police, for example, or from so many drivers without license or insurance, outweigh any arguments for doing nothing. (The judge is more concerned with terrorists coming over a porous border, but whatever the threat, it's safety not economics that argues against the status quo.)

Posner concludes that "in practice any measure for closing off future illegal immigration would have to be coupled with an amnesty for the current illegal immigrants." It's an honest assessment based on conservative principles, but as you can tell from the comments accumulating already, it won't improve his popularity among the right-wing base. One of the benefits, I guess, of a lifetime appointment is that you get to say whatever you want.

DA who failed to prosecute TYC sex abuse cases running for re-election

I've been focused elswhere besides the blog, or I would have mentioned sooner this Dallas News story about the Pecos County District Attorney's race ("Pecos DA criticized in youth jail sex scandal seeking re-election," Feb. 2), notable in particular because the incumbent running for re-election is the prosecutor who refused to pursue child molestation charges against Texas Youth Commission administrators at the West Texas State School, launching a crisis that ultimately led to the agency entering conservatorship. Reported the News:

The West Texas prosecutor who received national attention for ignoring a lengthy and graphic Texas Rangers report detailing sexual abuse at a nearby state juvenile jail thinks he can win another term in office.

But the scandal involving the systematic abuse of children held in Texas Youth Commission facilities won't be ignored. His only opponent is the county attorney who tried to run him out of office on grounds of misconduct and incompetence, and the two have been feuding since the scandal broke last year.

Randy Reynolds decided to seek a fourth term last year after speaking with his family, close friends and colleagues.

"Close supporters caused me to run again," Mr. Reynolds said. "People whose opinions I trust told me to run, and the decision was made."

See the rest of the piece for more backstory on the feud over this case between the county attorney who's challenging Reynolds and the incumbent, stemming largely from Reynolds' failure to pursue the TYC prosecutions. (As an aside, it's worth mentioning that the US Attorney also refused to prosecute based on the Ranger's findings, and he's still there, too.) Among other notable distinctions, Reynolds was named number eight on the Bad Prosecutor Blog's list of Worst Prosecutors in 2007.

It takes a lot of chutzpah to run for re-election after the media and legislators pilloried Mr. Reynolds all last year for his recalcitrance in pursing TYC cases. I wish his opponent luck. Whoever told Mr. Reynolds it was a good idea to run again gave him bad advice.

Legislature's underinvestment in competency restoration beds creates havoc for mentally ill jail inmates, county jails

The 80th Texas Legislature failed to fix the crisis, so mentally ill defendants who're declared incompetent to stand trial are still locked up in county jails in record numbers.

Por ejemplo, the Austin Statesman's Andrea Ball has a fine piece profiling the case of Daniel Whitehead, a schizophrenic/bipolar defendant arrested for allegedly forging a check. He was declared incompetent because of his mental state and spent 106 days in the already-full Travis County Jail waiting for a bed at the Austin State Hospital to open up. Reported Ball ("Mentally ill people's care falling to jails, emergency rooms in Austin," Feb. 6):

Since November, at least 125 depressed, suicidal or violent people have been sent to emergency rooms.

Previously, most of those people would have gone to the state hospital, said Dr. Jim Van Norman, medical director for the Austin Travis County Mental Health Mental Retardation Center.

Now, some spend up to 14 days in emergency rooms waiting for a bed in a psychiatric facility. Others are treated and released from emergency rooms without any mental health care.

Then there are people who, like Whitehead, spend months in jail waiting to be sent to a psychiatric hospital.

Incompetent defendants must undergo "competency restoration" services before they can go to trial or plea bargain; those services are performed only at state hospitals except in Houston, which has limited competency restoration services at the county jail.

I've not been as focused on this subject since the Legislature decided to short change funding for forensic beds at state hospitals last year and Advocacy Inc. announced it would move forward with litigation.

The state's community MHMR centers lobbied against funding additional forensic beds, claiming it would be better to manage competency restoration in the community. So they convinced the Lege to give money that otherwise would have gone to treat mentally ill people in jails for community based programming.

Problem is, the Lege gave MHMR centers the money without mandating that they handle competency restoration cases. So mentally ill folks like Daniel Whitehead basically got screwed to the wall. This guy spent longer in jail waiting to be declared competent than he likely would have received as a sentence if convicted and punished!

So what's it like to be a mentally deranged jail inmate?

Last fall, according to jail documents provided by Whitehead, he was beaten by other inmates and suffered multiple injuries. On Oct. 25, Whitehead filed a request for medical care and wrote that he was allergic to the antipsychotic drug Thorazine. On Oct. 26, he filed another request for aid and again noted his allergy to Thorazine.

When he received treatment five days later, a nurse told him that she planned to inject him with Thorazine. According to the medical records, the nurse returned to the clinic, rechecked Whitehead's chart for drug allergies, found none, and injected him with the antipsychotic.

"I begged them not to do it," Whitehead said. "Immediately I started having trouble breathing."

Whitehead's medical records indicate he also broke out in hives on his legs, stomach and buttocks and developed sores in his nose.

Shelly Eaton, senior paralegal for the Travis County sheriff's office, declined to comment on Whitehead's medical case.

After Whitehead had spent 82 days in jail, officials still had no idea when he would be sent to a psychiatric hospital, said Bode, Whitehead's lawyer.

So on Dec. 21, Advocacy Inc. — a federally funded agency that works to protect people with disabilities — filed a court motion asking officials to either hospitalize Whitehead or release him.

"He needed to be getting competency restoration treatment, and the only place he should be getting it is the state hospital," said Beth Mitchell of Advocacy, who teamed up with Whitehead's lawyer to file the motion. "There was no legal reason for him to be (in jail), so they had to let him go."

On Jan. 14, one week before Whitehead's court hearing, the state moved him to the state hospital.

Whitehead's case typifies the plight of dozens, perhaps hundreds of inmates around the state at any one time waiting in jail for competency restoration services. Not only is it inhumane and unsafe to lock up mentally ill people in dangerous jail settings, it serves no justice interest. The wait is caused solely by a lack of capacity, a failure by state government to provide services it mandates defendants receive before they're declared competent.

Ball's article effectively illuminates how most mental health care inevitably falls on local emergency rooms as well as prisons and jails. In economists terms, an underinvestment in human capital has resulted in expensive externalities that cost more to mediate than would providing indigent mental health care in the first place.

Society benefits a lot more if Daniel Whitehead's mental illness is brought under control than if he's punished for a $231 forged check written while he was off his meds. There has to be some way to divert such folks to receive services and help instead of prosecuting them like their behavior was rational.

In terms of the number of people affected, the lack of competency restoration beds is hardly the biggest problem faced by the justice system. But for those affected - both the defendants and the ill-equipped jailers who must care for them, for that matter their fellow jail inmates - the situation alternates on a grave continuum between sad and dangerous.

The community MHMR centers who received extra funding last year should immediately develop competency restoration programs aimed at county jail inmates, otherwise their claim that community based funding is "better" than sending inmates to state hospitals looks like disingenuous money grabbing. If they don't step up - and I seriously doubt they will - the 81st Texas Lege should either require them to do so, or take that money back and spend it on eliminating backlogs for forensic beds at state hospitals.

See prior, related Grits posts:

• Lawsuit moves forward to require quicker competency restoration
  
• Competency restoration legislation moving, funding for new forensic beds in jeopardy
  
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
  
• Lawsuit could force Texas to treat mentally incompetent defendants
  
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails
• When I was sick, did you imprison me?
  
• MH funding not enough, but better than a sharp stick in the eye

One more reason among many I don't live in Oklahoma

A regular commenter points to this Houston Chronicle story about in-country migrations caused by a new Oklahoma law criminalizing employers who hire illegal immigrants to say that anti-immigration laws "work" ("Laws aimed at hiring illegal workers drive many to Texas," Feb. 3).

My first thought: Sure, you can get them to leave Oklahoma! All that shows is that many immigrants possess intelligence, forethought, and good common sense. (I was surprised more of you in last week's sidebar poll didn't support my idea of a wall along the Red River.)

But instead of some mass awakening among Mexican emigres, (How do you say, "Oh my God, I moved from beautiful Mexico to dreary Oklahoma, on purpose - I'm a moron!" in Spanish?), the short-term migration resulted from a new statute, along with a similar one in Arizona. Reports the Chronicle:

few numbers are available because illegal residents are difficult to track, community activists say immigrants have arrived in Houston and Dallas in recent months, and they expect hundreds more families to relocate to the Bayou City soon.

''They're really tightening the screws," said Mario Ortiz, an undocumented Mexican worker who came to Houston after leaving Phoenix last year. ''There have been a lot coming — it could be 100 a day."

The growing exodus is the result of dozens of new state and local laws aimed at curbing illegal immigration. The two toughest measures are in Oklahoma and Arizona.

The Oklahoma statute, which took effect in November, makes it a crime to transport, harbor or hire illegal immigrants. Effective Jan. 1, the Arizona law suspends the business license of employers who knowingly hire undocumented workers. On a second offense, the license is revoked.

So what's been the result? Is everyone headed back to Mexico? Don't bet on it.

As the implications of laws in other states play out, Hubbard, the Mexican consul from Dallas, doubts many immigrants will go back to Mexico.

'I think they will relocate. They will at least give it one more try," Hubbard said. ''It's very difficult to cross the border, and expensive, too."

So this is just squeezing the balloon, but not helping solve the national immigration problem in the least. In fact, it makes it harder to solve by driving immigrants further underground.

This is short-sighted NIMBYism at the statewide level. From an economic perspective, these states are cutting off their own nose to spite their face:

In Oklahoma, one builder estimated that 30 percent of the Hispanic work force left Tulsa. Reports out of Arizona indicate that several restaurants have closed in Phoenix because of a shortage of workers, and vacancies at apartment complexes are increasing, in part because of departing immigrants. ...

The flight from Oklahoma began the month before the new law known as House Bill 1804 took effect, business leaders in Oklahoma say. In Tulsa, the Hispanic Chamber of Commerce has estimated that 15,000 to 25,000 illegal immigrants have left the area.

''Thirty percent of our Hispanic labor force left Tulsa — it was a huge hit, and it was almost overnight," said Greg Simmons, owner of Simmons Homes, Tulsa's largest home builder.

Based on his conversations with subcontractors, Simmons said they went to Texas and Kansas or returned to Mexico.

Jose Alfonso, pastor of the Cornerstone Hispanic Church in Tulsa, said 15 percent of the congregation's 425 members have left for Texas or California.

''It's been a very difficult situation for our church and the Hispanic community," said Alfonso, whose church is one of several who are challenging the law in federal court.

Business leaders say local police in Tulsa have mounted a campaign to target immigrants and have deported many after they were arrested for minor traffic offenses.

''I think we swung the pendulum too far; we're hurting people, the immigrant families, and we're going to hurt the economy," said Mike Means, executive vice president of the Oklahoma State Homebuilders Association, which has 3,600 members across the state. ...

''There's been a tremendous impact in Oklahoma City," Castillo said. "We've had several companies close shop and leave the state. Banks have called us and say they're closing 30 accounts per week."

So, companies closing, worker shortages, shuttered restaurants, a declining tax base, crippling the construction trades just as a recession looms: Those Okies are a brilliant bunch, aren't they? Hmmmm, yeah, give us some of that! (/sarcasm).

Though it sounds like a lot of people, in the scheme of things 15-25,000 people is a drop in the bucket compared to an estimated 1.6 million illegal immigrants in Texas statewide.

You notice the migration took place largely prior to the law's enforcement, not as a result of it. For those who stayed behind, and there are still plenty of undocumented Mexicans in Oklahoma and Arizona, it remains to be seen how and how often these statutes will really be enforced. Once Oklahoma and Arizona's laws have been in place for a while, and those who stayed figure out how to work around them, I bet these short-term migrations will even out.

Bottom line: It's way too early to say these laws "work." In fact, initial press coverage amounts to a list of resulting harms. No one quoted in the article thought they benefited from what happened. I'd love to hear somebody make the case that there has been any positive result.

Cui bono? Who benefits?

BLOGVERSATION: At Okiedoke, Mike takes umbrage at my depiction of Okiedom, declaring that the main benefit of the new law may be pissing off Texans. I replied in the comments.

UPDATE: See the lawsuit filed against the new law (pdf) by the Oklahoma Chamber of Commerce, one more bit of evidence that it's difficult to be both anti-immigrant and pro-business.

"Contradictory" claims can coexist if you understand border security problems

Since I've been particularly focused on the border this week, it's fitting that the House State Affairs and House Corrections Committees yesterday held a joint hearing on immigration and the justice system at the University of Texas at Dallas, reports the Dallas News ("Conflicting data on crime, immigration presented at legislators' public hearing," Feb. 2; n.b., There's no video online and since the hearing wasn't in Austin, I don't know if there will be.)

I'd need to hear the testimony or read the studies to know for sure, but I don't think I agree with reporter Diana Solis that the research presented by opposing sides was "contradictory." She wrote:

Legislators were presented with two contradictory studies on crime and immigration. One study, co-authored by Ruben Rumbaut of the University of California at Irvine, looked at incarceration rates among young men and showed those rates to be the lowest for immigrants, even those who are the least educated.

Another, authored by Carl Horowitz, of the Center for Immigration Studies, a Washington, D.C., research center, said that criminal gangs with ties to immigrant communities are a problem "understated" in crime statistics and that immigrants are less likely to report crime, according to a presentation by one speaker.

Personally, I don't see those data as contradictory at all. For starters, there's not any question - nothing to debate in the least - that incarceration rates for immigrants are eye poppingly low, much lower than for any class of citizens. The vast majority of illegal immigrants, who make up 8-9% of Texas' workforce, are behaving themselves and not committing the type of public disturbance offenses, e.g., that cause jail populations to balloon on weekends. Of that there's little question.

It's also not too controversial to observe that part of the reason for those numbers is that immigrants are less likely to report crime, giving rise to a criminal population that can target people with no real recourse under law. Theft and extortion top the list of crimes these policies encourage, but family violence is another good example: Will Mommy be less likely to report Daddy if it means he'll be deported? Probably. That's a big security problem, without a doubt.

Finally, there's little doubt that the problem of criminal gangs made up of immigrants is largely "understated," if by that you mean that a few criminal immigrants - mostly associated with large multinational drug cartels like Los Zetas - account for a significant amount of crime, particularly drug smugglers and coyotes (who increasingly, thanks to beefed up anti-immigration policies, are the same people).

So all of those things can easily be true simultaneously: There's nothing "contradictory" about the information as stated here, that I can see. Indeed, that cumulative analysis underlies my own preferences for border security.

The mass of immigrants who come here to work commit few crimes and cause few problems. Lumping them in with "criminals" for enforcement purposes creates a vast cloak whose folds conceal pockets of real criminality (not just illegal entry but victimizing others) that flourish because the appellation "criminal" has been applied to so many who pose no threat.

The drug cartels, by contrast, are wealthy, well-armed multinational criminal gangs, mass murdering thugs protected by corrupt cops whose activities cannot be tolerated in a free society.

America will not succeed at "securing the border," IMO, without removing the cloak of illegal immigration from the cartels' activities. By expanding immigration quotas to match labor demands and legalizing workers already here, it would be a lot easier to target real criminals, if only because immigrant victims would report crimes and witnesses would be more likely to cooperate with police.

Plus, by reducing the targets for enforcement, greater enforcement resources can go toward combating criminal smuggling gangs and the police corruption that enables them. Not only that, a more relaxed immigration policy would remove human smuggling from the cartels' profit sources, siphoning money they're currently using to purchase grenades, bazookas, semiautomatic rifles and 50 caliber firearms.

When folks like Sue Richardson, a "leader of a Republican club in Irving," complain about the "drug traffickers and terrorists living illegally in the country," they're conflating two problems that pose very different levels of threat and require different security strategies to combat. The violence and corruption caused by criminal smuggling gangs threatens democratic institutions in ways that people who come here for jobs do not.

At root, immigration is an economic problem that law enforcement strategies can't combat. To maximize safety and target the most serious threats, America must learn to distinguish criminality from mere annoyances, and behave accordingly.

Other recent border-related posts:

• What do we know about US-side cartel infrastructure?
• It's the checkpoints, stupid
  
• Los Niños de Los Zetas
  
• Following the money in search of American drug bosses
• Ex-Im Bank stonewalling media on weak, new anti-corruption guidelines
  
• As Mexico fights a "hot" war against cartels, US not holding up its end
• Most drug profits go to smugglers, not producers
  
• US made fewer cocaine seizures in 2007
• Mexican cartels continue supplying drugs despite massive number of arrests and deaths
  
• Might open-sourced criminal intelligence protect journalists and strike a blow against multinational drug cartels?

LBB: Texas prison population growth "flat"

Prison building enthusiasts must have been disappointed to learn that the Legsislative Budget Board will release new estimates on Monday showing "flat" growth in Texas' prison population, just a year after LBB suggested the state would witness major prison bed shortfalls in the next few years.

Considering Texas' astronomical prison growth in recent decades and where we were just a short time ago, this is important news.

At the Statesman's blog, Mike Ward attributes the revised projections to a "slowdown in the number of new felons, a slightly increased parole rate, fewer revocations to prison from probation and parole and the projected impact of new treatment and rehabilitation programs approved by the Legislature last year." Those few tweaks combined to make a substantial difference:

Details: The report predicts Texas’ incarcerated population will average 156,364 this year, and rise to 158,470 in 2012.

That’s much less than projected a year ago. Then, the state was estimated to be more than 17,000 beds short by 2012, at growth rates at the time.

Officials have always said that the declining parole rates and longer sentences are the main cause of prison overcrowding. While that latter remains a problem, the former has improved. Projections last year indicated that if the parole rate for low-level, nonviolent offenders rose just 4%, it would resolve the current prison overcrowding crisis. Lately that's been happening; though I've not seen recent data, anecdotal evidence indicates such cases are getting paroled more quickly than in the past.

Parole rates for low-level offenders and revocation rates for probationers are both policy matters that are largely within the control of actors in the system. By contrast, I'm interested to read of the "slowdown in the number of new felons." I wonder what accounts for that, and whether it's explained by an overall crime reduction or a change in the types of offenders being prosecuted?

Voters approved bonds to construct three new prisons last year, but LBB must certify that the prisons are necessary before construction can begin. This makes me think the agency's number crunchers might not provide prison builders the fodder they needed to begin new construction in the near term, though no final decision has yet been made.

One nagging, back of the mind concern: Texas' prison overcrowding crisis has been the main cause spurring a variety of positive criminal justice reforms in the last few legislative sessions, and I'm hopeful these new figures won't lead anyone at the Lege to believe the problem is "solved," the way some of them went back to their districts after session last year to say that TYC was "fixed."

Texas has made impressive first steps toward rationalizing its justice system, but if the state stopped implementing new reforms now we'd be right back where we started a few years ago. The prisons are still full, and TDCJ still can't find enough guards to staff prisons we've got. This news just means that Rep. Jerry Madden and Sen. John Whitmire merely have bought the state enough time to seek long-term solutions.

That's still an enormous accomplishment, though, and both men deserve taxpayers' gratitude for staving off the wave of new prison entrants who would have surely overwhelmed an already flooded system.