Nanny statism not just a local trend

Are a slew of petty municipal ordinances turning the city of Dallas into a "nanny state"? So far, 79% of respondents in an online poll at the Dallas News say "Yes."

Dallas police often can't solve the crime problems that really frighten people, like a series of increasingly brazen burglaries in East Dallas, but the city council is busy making up a whole slew of additional "crimes" that divert law enforcement's resources away from more serious offenses ("Some recent laws seen as protecting Dallas residents from themselves," March 28):

At the decade's dawn, Dallasites could smoke in restaurants, walk their dogs without carrying a pooper-scooper and stroll through downtown or South Dallas without being monitored by police video cameras.

Children, meanwhile, were free to run through parks playing with their toy six-shooters. Homeless people could beg for money at will.

Today, no more – the Dallas City Council has since deemed such actions illegal and subject to stiff fines.

And when the council members passed an ordinance last month banning motorists from calling or texting on their cellphones while driving through school zones, some Dallasites said the decision represented a larger trend toward government "nannyism," in which well-intentioned politicians end up treading on individuals' liberties.

City records also indicate that many of these laws, designed to improve residents' quality of life, are rarely enforced.

Texas Land Commissioner Jerry Patterson likes to say that there is no greater enemy to liberty than a city council, because there are few checks and balances at the municipal level and they tend to be outcome oriented.

But overcriminalization and nanny statism isn't just a local problem, or a problem with low-level offenses. When the Legislature ended last session, there were 2,324 felonies on the books (eleven of them involving oysters) and thousands more misdemeanors. The Fifth Circuit overturned one of them since then, leaving 2,323 separate acts presently labeled felonies in Texas.

Nanny statism isn't just happening at the Dallas City Council (or the Austin City Council, where it's even worse). It's a general trend of government at all levels. We've long ago criminalized, and punished harshly, things that are actually wrong. Now government has devolved into passing harsh laws against things that are merely annoying.

Dallas think tank believes immigrant criminals deserve greater leniency than citizens

A reader forwards an email from the National Center for Policy Analysis I found rather strange. NCPA is an ultra-conservative think tank in Dallas that only infrequently delves into crime and punishment issues.

For an organization that generally supports draconian positions on immigration, though, I was surprised to see NCPA advocating that immigrants convicted of crimes in the United States should receive more lenient sentences compared to citizen offenders. The next time you hear someone complain about "special rights" for illegal immigrants, you might point out this little tidbit. Here's the text of NCPA's email:

NATIONAL CENTER FOR POLICY ANALYSIS
DAILY POLICY DIGEST
Friday, March 28, 2008
http://www.ncpa.org

DEPORTING SOME IMMIGRANT INMATES A BIG BREAK FOR STATES

Programs in New York and Arizona aimed at cutting the prison sentences of certain immigrant inmates so they can be deported faster have federal officials urging other states to adopt similar policies.

o Officials in the two states say they have saved millions by turning over for early deportation some non-violent immigrant criminals who have served at least half of their sentences.

o Eligible inmates include both legal immigrants who committed certain crimes and illegal immigrants.

o U.S. Immigration and Customs Enforcement (ICE) officials say the federal government also saves money when immigrant inmates get sent home early, and hopes to expand the program in the next few months.

"This program does not apply to your rapists, your murderers, your serious criminals," says Julie Myers, homeland security assistant secretary for ICE.

Myers says it costs an average of $95 a day for the federal government to detain and house illegal immigrants before deportation. The accelerated deportation policy "reduces the amount of time aliens are in our custody," she says. "It reduces the amount of time our lawyers have to spend prosecuting cases in immigration court."

ICE has been targeting illegal immigrants with criminal convictions and the related costs are growing. Last year, 164,000 immigrant criminals were placed into deportation proceedings, up from 64,000 in 2006, says Myers.

o New York's program began in 1995, says Erik Kriss, spokesman for New York State Department of Correctional Services; through December, nearly 2,000 inmates had been deported under the program for a savings of $141 million.

o Since December 2005, 1,300 Arizona inmates have been turned over to ICE for deportation under the policy, says Nolberto Machiche, spokesman for the state Department of Corrections; the state has saved more than $17 million as a result because it no longer has to house the criminals, he says.

Source: Emily Bazar, "Deporting some immigrant inmates a big break for states," USA Today, March 28, 2008.

Someone explain to me why immigrant offenders should be treated more leniently than US citizens committing the same crimes? I've complained when immigrants are singled out for worse treatment in the process, but for the same reasons (you know, that pesky 14th Amendment requiring equal protection under the law), US citizens shouldn't receive longer sentences just because of where they're born.

Only economics and pragmatism in the face of full prisons, not any justice interest, is driving these programs. Many people who are deported simply return to the United States at their first opportunity, so it's folly to think that a criminal deported back to Mexico will forever stay there.

There exist legitimate reasons to rethink incarceration policy, but when we do, everyone should be treated equally and fairly, regardless of where they were born. If prison officials have identified categories of offenders who they believe won't pose a major public safety risk if they're released, they should be shortening sentences for every offender, including US citizens, not just giving undocumented immigrants a break.

Wilson's criticisms of Pew study miss mark, ignore contrary research

A reader points me to an article in the LA Times by James Q. Wilson ("Do the time, lower the crime," March 30) responding to the recent study by the Pew Center on the States regarding America's high incarceration rate, which now exceeds one out of every 100 US adults. Wilson is one of the chief ideologists promoting a "get tough" approach nationally, so it's worth taking a moment to identify a few of the overstatements and obfuscations that to me typify his public pronouncements on crime.

For example, on the all-important subject of whether high imprisonment rates reduce crime, Wilson writes:

nowhere in the [Pew] report is there any discussion of the effect of prison on crime, and the argument about costs seems based on the false assumption that we are locking people up at high rates for the wrong reasons.

In the last 10 years, the effect of prison on crime rates has been studied by many scholars. The Pew report doesn't mention any of them. Among them is Steven Levitt, coauthor of "Freakonomics." He and others have shown that states that sent a higher fraction of convicts to prison had lower rates of crime, even after controlling for all of the other ways (poverty, urbanization and the proportion of young men in the population) that the states differed. A high risk of punishment reduces crime. Deterrence works.

For starters, his comment about incarceration vs. safety results in states cannot survive a comparison between Texas and New York, for example, so I'd like to see the research backing up that statement. By relying on Mr. Levitt's often controversial work, he's identified a scholar whose estimates of the effectiveness of imprisonment fall on the high end of those produced in the last decade. Levitt thinks that imprisonment accounted for as much as 32% of the reduction in crime in the 1990s (See "Understanding why crime fell in the 1990s").

Other econometric estimates - including one by UT-Austin's Bill Spelman - found that expanding the prison population accounted for about a quarter of the crime reduction in the '90s. (Bill and I have enjoyed a friendly dispute about this in the past, because I think some of his assumptions overstate incarceration's effectiveness and understate its harms). Overall, according to a recent paper by the Vera Institute, Levitt and Spelman "produced a fairly consistent finding, associating a 10 percent higher incarceration rate with a 2 to 4 percent lower crime rate."

But if we are to be honest about the state of empirical research on the topic, one cannot declare emphatically, as Wilson does, that "deterrence works" or that expanded incarceration "reduces crime." According to the Vera Institute, "One could use available research to argue that a 10 percent increase in incarceration is associated with no difference in crime rates, a 22 percent lower index crime rate, or a decrease only in the rate of property crime."

What's more, even the highest estimates, like Mr. Levitt's, still contend that 2/3 of the crime 0reduction had nothing to do with incarceration. So the decline in crime, according to these sources, mostly wasn't because of putting more people in prison.

Wilson says as much when he writes that, "Several scholars have separately estimated that the increase in the size of our prison population has driven down crime rates by 25%." But crime has declined much more than that since the early '90s, and Texas' prison population tripled since then, for example, so if it takes a 300% increase in prison capacity to get a 25% reduction in crime, how far can we really take that strategy?

Wilson similarly ignores research that suggests real, immediate limits to the benefits of incarceration in states that have large prison systems, again from the Vera Institute (p. 7):

Raymond Liedka, Anne Piehl, and Bert Useem have confirmed, moreover, that increases in prison populations in states with already large prison populations have less impact on crime than increases in states with smaller prison populations. States experience “accelerating declining marginal returns, that is, a percent reduction in crime that gets ever smaller with ever larger prison populations,” they argue. Thus, increases in incarceration rates are associated with lower crime rates at low levels of imprisonment, but the size of that association shrinks as incarceration rates get bigger.

So for states like California and Texas, the prospect of reducing crime by 2-4% by adding 10% to the prison population (in both states around 160,000 prisoners, give or take), represents massive additional expenditures that a) probably aren't worth the bang for the buck and b) are practically impossible in the real world because of limits on the state's ability to staff existing facilities.

Given that context, I audibly chortled upon reading Wilson's complaint that the Pew study compared increased state spending for prisons with that for universities, chiding Pew for failing to consider "whether society gets as much from universities as it does from prisons." Given the low marginal returns on prison spending and the much higher return rates on investment in higher education, we can have that debate, sir, but I doubt it will turn out quite the way you seem to think.

Professor Wilson offers a throwaway line that "except for some minor drug offenders" we don't imprison people needlessly. But in Texas (where Spelman's study was done), that's a LOT of folks. E.g., drug offenders are far and away the largest category of Texas probationers revoked to prison, and make up nearly a third of the prison population. Some "minor drug offenders" get awesomely long sentences - does Wilson think that improves safety, or not? He implies "no," but he certainly downplays the issue considering drug addicts are taking up so many prison beds.

I was happy to see Wilson advocating stronger probation programs, but they seemed almost an afterthought to his larger, erroneous thesis that mass incarceration is responsible for reduced crime. Nobody actually knows for sure what caused the crime drop in the '90s, though no one - even the research Wilson cites - claims that expanded incarceration caused most of the reduction. There's no doubt that some folks need to be incarcerated, but there's equally little doubt we incarcerate many more than is necessary to ensure public safety.

h/t to Bill Bush for forwarding the link.

Revisionism begins in effort to restore drug task force pork: PR blitz another good reason why Congress should slash Byrne grant funding

The Amarillo Globe News this morning offers a revisionist history of events leading to the closure of drug task forces in the Panhandle and across Texas ("Police: Rethink drug reforms," March 30), arguing that "one bad apple" in the Tulia case shouldn't have cost all drug task forces their funding. Indeed, this morning's piece drifts so far from the historical record, I have to wonder if its just another volley in the coordinated national PR blitz aimed at convincing Congress to reinstate their pork barrel funds.

In particular, the Globe-News touts one of the national pro-pork talking points that's really inapplicable in Texas, declaring, "Some rural police agencies say nabbing drug kingpins in less-populated corners of the state has gotten tougher since a 2005 law went on the books regulating how task forces are organized and coordinated."

Kingpins? Huh?

That hardly squares with the actual history of the referenced 2005 law, which required task forces to comply with new Department of Public Safety rules that gave "no priority" to arresting end users, instead requiring that they focus on "drug trafficking organizations" (DTOs) involving multiple people.

In other words, the new law REQUIRED them to go after "kingpins" instead of the petty users once swept up in large numbers with virtually no reduction in major crime. Far from making it "tougher" to go after "kingpins," the law they're complaining about insisted they do so. But those cases are harder to make, while busting users in low-level cases is like shooting fish in a barrel. Many balked at the extra work and responsibility, preferring to rack up large arrest totals from low-level possession cases.

Another strange aspect to the Globe-News story was the insistence that all these legislative changes were made in response to one "one bad apple" - Tom Coleman in the Tulia case. Nothing could be further from the truth.

What really put that legislation over the top wasn't Tulia, but revelations that many task forces had endured scandals around the state and the rest of the nation, combined with management snafus at DPS. The innocent people set up in Hearne perhaps garnered the highest national profile, but numerous other cases arose that would give reasonable people pause. The fundamental problem with Byrne task forces, in Texas and elsewhere, has always been their flawed structure. They're federally funded, managed by a regional pseudo-entity outside formal chains of command, and staffed with officers assigned by local departments. Those conflicting lines of authority mean no one is accountable to anyone, at the end of the day.

The referenced law did not mandate the task forces' abolition. When the Department of Public Safety installed new controls in reaction to flawed outcome measures and documented problems in Tulia, Hearne, and elsewhere, most task forces chose themselves to close up shop rather than operate under rules that targeted "kingpins" instead of users.

Once a majority of Texas counties no longer participated in Byrne task forces, shifting their funding to border enforcement was actually an easy political decision for the Governor to make.

Which brings me to another quibble: Contrary to the thesis of the article, the task force in the Amarillo area did not close in response to SB 1125. Local officials ended it on their own well before then because they didn't want a repeat of liability issues they experienced with the Tulia sting. Ditto for the one in Lubbock. Most urban jurisdictions in Texas pulled out of the task force system well before this legislation passed, much less before the Governor pulled the plug on funding for the final remaining few.

In other words, the Globe-News and local law enforcement unfairly blamed legislators for decisions that were made by their local county commissioners court! What's more, the reporter could have discovered the error just by searching his own newspaper's archives. (This article supplies a great example of why I despise "journalistic balance." It takes misleading statements by law enforcement, "balances" them with a quote from Sen. Juan "Chuy" Hinojosa, then presents the resulting hodge podge to readers as though it's "just the facts.")

Still another odd aspect to this cry from the wilderness (and the dateline of the story is from Dimmitt, TX, so that more or less really is the wilderness): the writer seems oblivious to the national politics surrounding these funds, though he'd have learned much with a quick Google. There's a terrific chance the entire program nationally will be cut by 2/3 in the federal budget that takes effect this fall, so they're asking for more money at a time when overall funds are dwindling.

The story didn't mention this national context, but it seems to mitigate substantially the likelihood that anyone will take seriously a plan to revive Texas' task forces. The state would have to use general revenue, at this point, and the chance of that happening are virtually nil.

H/T to Rev. Charles Kiker for emailing the story.

RELATED: Texas' Tulia Lesson: Dems should join GOP in abandoning failed task force strategy

Deadly riot at federal prison in South Texas could have been prevented with adequate staffing

Was understaffing at a federal prison in South Texas responsible for yesterday's prison riot? It seems likely.

Only 13 guards were on duty to oversee 1,160 inmates at a medium security federal prison in Three Rivers when a riot broke out yesterday, leaving one inmate dead and 22 injured. That's an 89-1 inmate to staff ratio. (See coverage from the Corpus Christi Caller Times.) A union representative said "the incident could have been prevented if the prison was more adequately staffed."

At Texas jails, by contrast, 48-1 is considered minimum staffing, and I've long thought that ratio is too high to ensure guard and inmate safety in every circumstance. At 89-1, when the s%*t hits the fan, guards can do little but run for their lives.

I've been paying attention to chronic understaffing at Texas prisons and jails, and the state's response, but it sounds like the problem may be even worse (and the prisons therefore even more unsafe) at federal facilities, if this absurdly high inmate to staff ratio is typical.

MORE: From the SA Express News blog describing the wounded and injured from the riot coming to San Antonio for medical treatment. The Houston Chronicle coverage also blames staff shortages for the incident. The New York Times' coverage notes that this is the second violent incident resulting in a federal prison lockdown in Texas in three weeks, the earlier one occurring at a facility in Houston.

Federal dollars from immigrant detainees aren't worth intangible costs at Travis County Jail

I'd somehow missed news of this recent protest at the local jail, but here in Travis County, reported The Daily Texan ("Workers rights group pickets Travis County Jail," March 19), Sheriff Greg Hamilton faces increasing political pressure to scale back his department's expanded collaboration with the federal Immigrations and Customs Enforcement (ICE) service

"We are presenting a letter today to the Travis County Jail signed by a broad base of community organizations, churches and immigration organizations to let them know there is large support for this cause" ... said [Cristina Tzintzun, a representative for the Workers Defense Project, an immigrant workers' rights organization].

Many of the protesters spoke of the importance of cooperation between local law enforcement and the immigrant population.

"A number of people have had their homes broken into, but they don't report it because of their legal status, and that causes a threat to all of us," said Rev. John Korcsmar of the Dolores Catholic Church.

Though many protesters are worried about the inability of immigrant families to report crimes or domestic violence to local authorities, ICE officials say their programs are designed to keep communities safe.

"Many of the victims of criminal aliens are illegal aliens themselves," said ICE spokesman Carl Rusnok. "One of our highest priorities is to target aliens with criminal convictions who target those in their community."

Rusnok said the agency has many programs that partner with local law enforcement to combat crime.

However, fear of imprisonment and deportation deters many victimized immigrants, including victims of domestic violence, from cooperating with local police, Tzintzun said.

Roger Wade, a spokesman for the Travis County Sheriff's Office, said the expanded collaboration with ICE is not a new program. Though he said he could not comment on specific arguments from the protest, Wade said the organization has been working in the Travis County Jail for the past 28 years to check on inmates who are illegal immigrants.

"We will continue to work with all federal, state and local law enforcement agencies," Wade said.

Whatever the merits of the Sheriff's new policy, the debate has become confused by the department's refusal to admit they've significantly changed it, which I think is a major public relations mistake. Roger Wade's statement simply misrepresents the facts, which makes it increasingly difficult for the Sheriff's critics to believe the department is acting in good faith.

As I've written before, the feds have "holds" on literally twenty times the number of inmates at the Travis jail compared to before the new policy, which allows ICE to identify suspected illegal immigrants upon arrest instead of upon conviction. According to Austin city councilmember Mike Martinez, "Prior to the change there were only a handful of cases per month resulting in detainments (4 to 5). That number has now risen to approximately 111 for December and over 110 for the first 2 weeks of February alone." These are OPTIONAL inmates, extra prisoners taking up jail space because of a political decision by an elected official, and for no other reason.

The Travis County Jail already is at risk of noncompliance with state regulators. I don't understand Sheriff Hamilton's motivation for sticking to his guns so stridently on this. Maybe it brings in a few extra dollars from the feds, but the soured community relations, not to mention headaches from piling scores of optional inmates into an overcrowded jail, seem to me to outweigh a little extra cash on the side.

Perhaps Sheriff Hamilton would be less gung ho for this strategy if Travis County Commissioners simply designated all proceeds from the ICE contract to roads or parks. Then, absent a false financial incentive, the Sheriff could get back to focusing on how to reduce needless jail overcrowding, rather than exacerbate it.

Dallas officers fired for ticket scandal believed end justified the means

The firing of two Dallas police officers and the suspension of a third highlight abusive ticket writing practices that apparently have gone on at the agency for years. Reported Tanya Eiserer in the Dallas News ("2 Dallas police officers fired, 1 suspeded, after investigation of tickets," March 28):

Senior Cpl. Jeffrey Nelson and Senior Cpl. Al Schoelen entered "inaccurate, false or improper information on citations" and engaged in an unacceptable "pattern of enforcement activity," according to police. Cpl. Nelson also used "inappropriate force" on a handcuffed woman and had people sign blank citations.

Chief Kunkle said the officers weren't fired for specific incidents, but for a pattern of "activity that we as a department think is inappropriate." He declined to comment further.

A third patrol officer, Senior Cpl. Timothy Stecker, was suspended for 10 days after investigators concluded that he had also had people sign blank citations. A supervisor was suspended for five days.

In general, there are two types of police corruption, both of which undermine police ethics and the rule of law and cannot be tolerated in a free society. Some corruption cases involve straight up bribe taking or officers making personal profit collaborating with crooks. But the more common brand of police corruption involves officers, like these three, who come to believe that the "end justifies the means." To me, that's almost a more dangerous brand of misconduct because it's more frequently tolerated or even encouraged. Eiserer quoted me in her story on this topic, declaring:

"That's just megalomaniacal," Mr. Henson said of having someone sign blank citations. "That's police officers who think they're just in charge of these people's lives and can decide at their leisure down the line what they will accuse them of."

Mr. Henson, who now writes Grits for Breakfast, a blog that focuses on Texas criminal issues, said the chief's decision to discipline the officers was a "good start because it lets officers know that the chief takes" that type of conduct seriously.

I also added, though the comments didn't make it into the story, that Kunkle's actions won't be enough on their own to stop this behavior. Such activities are tolerated because of a departmental culture that develops over many years. Chief Kunkle can only do so much. We mustn't forget that the commanders, captains, and field supervisors under him have been operating for a long time in an arena where this kind of policing was not just tolerated but rewarded.

Robert Guest rightly asks why no criminal charges are being pursued.

The victims of these officers' unlawful ticketing are among the most disadvantaged and defenseless folks in society - mostly homeless people and street prostitutes. That makes sense; I imagine they wouldn't get away with treating middle class folks that way for five minutes, though aimed at street people this apparently has gone on for years. Since Dallas PD policy won't allow the department to take action based on anonymous complaints (in this case other officers came forward after anonymous complainants were ignored), people like that who are vulnerable to retaliation by police are highly unlikely to come forward.

This case reinforces to me why the "Rate My Cop" website is such a good idea, and really should be a government operated function, with many different avenues (not just the web) available for complainants. The ability to receive anonymous tips about police misconduct might have clued in these officers' supervisors years ago, and prevented a lot of abusive behavior committed in the department's name. When I'd earlier discussed the Rate My Cop site, a police supervisor added this positive response in the comments.

As a police supervisor, I agree. The cities should have a place (easy to find) on their PD's website where citizens can file anonymous tips and complaints. In my experience, people are reluctant to come face to face or even call on the phone even for the most minor perceived officer misconduct. And yes, I know why. But anyway, what I like is that it would give me the heads up on officer behavior that will not be seen with his sergeant standing there. I can follow up on the anon tip and see where it goes. If it's unfounded, no harm no foul, but if not...

Watch the giant turd the police unions will have over that one!

This supervisor is absolutely right about police unions fighting the idea. Hell, they're bitterly opposing the firing of these cops, though IMO they shouldn't just be fired but also prosecuted.

However, in an era where technology and changing attitudes have made customer feedback easier than ever and more commonly integrated into all types of management systems, union opposition is no reason to avoid creating easier and more accessible means for the public to provide feedback - positive and negative - about the officers with whom they interact.

Blackburn succeeds in Amarillo with medical necessity defense for marijuana defendant

Reason's Hit and Run blog brings the news that our buddy Jeff Blackburn - the civil rights attorney who runs the Texas Tech law school Innocence Project and was the main lawyer representing defendants in the Tulia drug sting case - has just won a major victory in an Amarillo courtroom, convincing jurors that his client used marijuana out of medical necessity. The argument earned him an acquittal! Congrats, Jeff! According to a press release from the Marijuana Policy Project I received via email:

Though such a defense - which requires the defendant to establish that an otherwise illegal act was necessary to avoid imminent harm more serious than the harm prevented by the law he or she broke - has rarely been successful in Texas, the jury took just 11 minutes to acquit Tim Stevens, 53. The trial was hotly contested.

Outstanding news! More from the Marijuana Policy Project and from AP. MORE: See coverage from an Amarillo TV station and the Amarillo Globe News. AND MORE: See a legal analysis from Defending People.

UPDATE: Robert Guest points me to this hilariously misguided thread on the topic at the prosecutors' user forum. Given that a) a judge allowed the medical necessity defense, and b) a jury acquitted on it, you've gotta like Williamson DA John Bradley's legal assessment that "The government has already decided, as a matter of law, that the drug is not available for such a purpose. No defense permitted." Further evidence that Mr. Bradley's legal advice and $2 will get you a cup of coffee at the Starbucks and little else.

Questions about snitch busted in Austin undercover operation

Bully for the Travis County Sheriff's Office: When an informant showed up for an undercover operation, they searched his vehicle before proceeding and found an ounce of coke in the trunk of his Porsche. Rather than ignore the crime and proceed with the undercover operation, they arrested the guy and took him to jail.

It can be tempting for police to cover for their informants' misdeeds, so these deputies deserve credit for doing the right thing when they found drugs on the guy.

Still, given my interest in the subject of snitching, the case raises additional questions that I hope will come out in proceedings against the would-be CI that follow:

I wonder, how much coke were they planning to have the informant buy? Was the CI holding more drugs than the people they were targeting?

Did they get a search warrant for his home and foundation offices to look for more drugs before he was released on bail? If he had an ounce in his car, there's probably more somewhere.

The informant is president of a local philanthropic foundation, so he doesn't seem like a typical drug snitch. Was he working off a separate criminal charge by participating in this undercover drug sting? If so, what was it, and will he now be charged with the crime that deputies previously overlooked? If not, was he paid for his informant work and how much?

Has this fellow been used previously as a snitch in undercover cases, and if so was he using or selling cocaine (an ounce is quite a bit of blow) while he was working with police in those cases?

I ask these questions because of my growing impression that the use of drug informants experiences little oversight, and too often the big fish get off while the little fish get eaten. The guys driving Porsches don't tend to go to prison, but we're filling up plenty of cells with young black men on drug charges who barely have two nickels to rub together.

I'm glad the Travis Sheriff's deputies pulled the plug on this guy, but it sure makes you think twice about the caliber of people used as police agents in undercover operations. If this fool had just left his dope at home when he went to meet with the cops (!), we'd never have heard about this story.

UPDATE: More from the Austin Statesman. It turns out the fellow was indeed arrested previously for using coke and, instead of prosecuting him he was offered an informant deal, which is apparently standard departmental policy, according to the paper:

After Mitte offered to help bust a supplier, the sheriff's office put the charge "on the back burner," Wade said.

Wade said the department routinely uses people who have been arrested in drug cases as informants.

"We'd much rather get the supplier than the user," he said. "So, it's offered to everybody."

So snitch deals are "offered to everybody"? You mean everyone the Travis County Sheriff arrests for drugs can get out of the charge by ratting on someone else? What a flaky, porous system. If this case is typical, that policy amounts to knowingly tolerating illegal activity on a fairly large scale. Such situations are why Prof. Alexandra Natapoff has written that frequently snitch deals, rather than solving crimes, can be "destructive, crime-producing, and corrupting."

DOJ forums in Houston focus on prison rape

A guest column in today's Houston Chronicle informs us of hearings today and tomorrow in Houston focusing on prison rape ("For the sake of all Texans, stop rape in our prisons," March 27):

According to the Bureau of Justice Statistics, the Texas Department of Criminal Justice runs five of the 10 prisons with the highest rates of sexual victimization in the country. Today and Friday in Houston, the U.S. Department of Justice Review Panel on Prison Rape is holding public hearings to examine the policies and practices at these five prisons. The hearing provides a unique opportunity for policy-makers, and all Texans, to seek solutions to the systemic problems that have placed the TDCJ so firmly among the nation's most troubled prison systems.

The BJS prison ranking was based on the first-ever nationwide inmate survey, in which prisoners across the country were asked whether they had experienced sexual abuse at their current facility in the past 12 months.

Nationwide, the BJS found that 4.5 percent of prison inmates — that's 60,500 people, more than the population of Galveston — reported being sexually assaulted in the previous year alone. At each of the five TDCJ facilities represented at this week's hearing — the Allred Unit, the Clements Unit, the Coffield Unit, the Estelle Unit and the Mountain View Unit — between 9.3 percent and 15.7 percent of inmates reported that they had been sexually abused in the same period.

While anyone can become the victim of sexual abuse in detention, the most vulnerable inmates tend to be young, small in stature, nonviolent, transgender, gay or perceived to be gay, and inexperienced in the ways of prison life.

These stats are perhaps a tad misleading, at least when comparing Texas to other states, in that we're one of the few states with a fairly comprehensive reporting program, so more alleged prison rapes are identified at Texas units than is probably the case in other jurisdictions that report few or no confirmed inmate on inmate sexual assaults. Still, the numbers reported are high and shocking. If it's really true at some units 9-15% of inmates are sexually assaulted, that's a pretty nightmarish environment and doesn't speak well for management or security at those facilities.

MORE: See additional analysis on Texas prison rape data from the Houston Chronicle.

10% pay hike for Texas prison guards approved - will TYC follow suit?

The Texas Board of Criminal Justice approved a 10% pay hike for new prison guard hires at its meeting today in Austin, reports AP, boosting starting pay and eliminating what is currently the third salary step for COs, meaning guards will get pay increases faster:

The changes, effective May 1, will boost salary of a starting officer from $23,046 to $25,416 and compress seniority requirements to allow new officers to achieve higher pay grades in fewer months.

In addition, the agency will be offering a recruitment bonus of $1,500 for new officers who go to work at state prisons considered understaffed. Typically, about 20 of the 106 prisons fall into that category.

"Our correctional officer staffing situation is the most urgent operational challenge we face as an agency," Department of Criminal Justice Executive Director Brad Livingston said.

As of the end of February, Texas prisons had 22,765 officers and 3,594 vacancies, about a 14 percent deficit.

In the most recent year, statistics showed 43 percent of officers quit in their first year, compared with the overall turnover rate of 24 percent.

"One of the things we attempted to do in these changes is address the early turnover," Livingston said. "Clearly I think it's fair to say turnover always will be higher in the first year than will be in the entire group. Our goal here is to close that gap."

The changes essentially eliminate the third step of a nine-step salary scale for corrections officers. For example, in their ninth month on the job, an officer now will be making $28,546, a level previously achieved at the start of the 15th month. Future increases likewise come six months sooner, meaning on officer reaches top scale of $33,946 in his 91st month on the job rather than his 97th.

The pay hike represents an emergency measure to combat crippling staff shortages, and the TDCJ board is spending money that isn't actually budgeted for their agency, about $20 million per year extra, the Statesman reported:

"It's money we don't have," Livingston acknowledged. "Clearly the adjustments will require moneys for salaries above and beyond what we have budgeted, but we still have an obligation to try to make our budget work."

He said one option that would require approval of the governor's office and the Legislative Budget Board was transfer of money from his department's 2009 budget into the current budget.

Unanswered in the coverage so far, the Lege just increased Youth Commission JCO pay to match salaries at TDCJ, but now with this increase there's a disparity again. Will the TYC conservator boost pay to match TDCJ's salary move (that money isn't budgeted, either), and if not, won't it worsen the problem of employees at youth prisons leaving to work at adult facilities?

The boost in guard pay is necessary, long overdue, and arguably even more needed at TYC. It's just a shame that the state lets itself get forced into these situations through crisis rather than planning for them responsibly when the Legislature is in town.

UPDATE: See fuller coverage from Mike Ward at the Statesman. According to his account, only COs in their first 16 months on the job will receive pay hikes. Pay scales for veteran COs will remain the same.

Honest to God "snake oil salesman" charged for selling venomous, vodka-based elixir

Just pointing this story out for its "don't you love this state?" humor value.

I'm not surprised someone would make such a concoction, but it cracks me up that the vendor, named "Bayou Bob," no less, developed a significant customer base selling what amounts to rattlesnakes brined in vodka, which sold as a natural medicinal remedy, he (naturally) insists.

A true, literal, snake-oil salesman ... who'da thought?

Bayou Bob had one bottle of rattlesnake soaking in tequila when his facility was raided, along with 429 containers with rattlers soaking in vodka. One imagines that, for tequila drinkers, this development would significantly add to the dilemma as you near the end of the bottle over whether to "eat the worm."

Ignition interlocks a good idea for DWIs, but vendors should be more transparent

I'm a fan of ignition interlock devices for DWI probationers, and think that empirically they're a better solution than incarceration, for many drunk drivers, if the goal is to reduce fatalities. But like Elvez1975 over at You Don't Make Friends With Salad, it gives me pause if the makers of such devices aren't being transparent about their products.

Elvez1975 describes recent efforts by an ignition interlock company to market their devices to himself and other defense attorneys. He then tried to follow up to get more information from the company, but they rebuffed him because they don't give out information to offenders or their representatives, even though probationers must pay for the device themselves as part of their supervision agreement.

For now I'll continue to support these devices based on their empirical safety benefits. Indeed, I think they could be used more broadly if the state would just pay for them, since almost no matter what they cost it's cheaper than incarcerating someone for a multi-year sentence. But when someone's liberty interest is at stake, especially when the probationer's the one paying for the equipment, it's absurd that end users and their lawyers can't get enough information from a vendor to determine if the device is reliable.

Texas prisoner entrepreneurs, pioneering program, garner international attention for economic success and low recidivism outcomes

Thanks to the reader who forwarded this article from The Economist ("A new deal: Rehabilitating prisoners," March 19) profiling Texas' nonprofit Prison Entrepreneurship Program (PEP). The article focuses on PEP graduate Sam Amaya, a repeat offender who committed a series of gun offenses beginning at age six (!), but who will soon:

graduate from the Prison Entrepreneurship Programme (PEP), a remarkable effort to prepare some of Texas's harder cases for their transition back to freedom. The programme was founded in 2004 by Catherine Rohr, a venture capitalist who changed careers after visiting several Texas prisons.

Her premise is that many criminals are intelligent people with good heads for business and healthy appetites for risk, and that these traits can be put to productive use. She is particularly interested in people who have already demonstrated these skills—for example by running a successful drug business or achieving a high rank in a gang.

During the past four years PEP has put more than 300 inmates through four months of business classes and study. They meet MBA students to develop business plans, and hundreds of businessmen have taken part in special events at the prison. About 40 graduates already have businesses up and running. The vast majority are employed. Fewer than 5% have reoffended. The programme is privately funded, and that success rate has helped it grow. In 2004 Ms Rohr used her savings to get things going; this year the operating budget is $3.2m.

PEP's success is partly due to the fact that the programme takes only the most serious applicants. Prospective participants first fill out a lengthy questionnaire. Those that pass have an interview, where Ms Rohr claims she rumbles the fakers. Once selected, a participant can be booted out at any time for a variety of infractions, such as cheating or maintaining gang membership. The current class started with 87 members and is down to 39.

Participants say that PEP provides male role models, and helps them have hope for the future. Ms Rohr considers it her job to build character. “They're not in here because they were bad businessmen,” she says. “They're in here because they were lacking moral values in their lives.” She assigns them ethical case studies and leads discussions on everything from honesty to sexual relationships.

Texas is making its own efforts to improve results for released offenders, but released prisoners typically get just $100 and a bus ticket to Houston or Dallas. PEP picks up its graduates at the gate with packages of sheets, toiletries and business suits. It helps them find work and housing, and even offers a free trip to the dentist. According to Gregory Mack, a participant, all this makes a big difference. Mr Mack has been in and out of prison on drug charges for the past two decades. He completed a behaviour-modification programme in 2002 as a condition for parole, but its value was limited. “They really had nothing to offer outside the walls,” he explains. By 2005 he was behind bars again. Mr Amaya now has a chance to avoid that fate.

Memo to SCOTUS: If a defendant is spouting "gibberish" at trial, maybe they weren't really "competent" to begin with

If a mentally ill person chooses to represent themselves at trial and can't put on a coherent defense that rises above the level of babbling, I'd think that calls into question the quality of the court's decision that the person was "competent" to stand trial in the first place.

But attorneys for states and the federal government argued at SCOTUS this week in Indiana v. Edwards that in such cases, courts should create a second standard that says a person is "competent" to stand trial but that only appointed representation can speak for them. (Lyle Denniston at SCOTUSBlog has a writeup of the oral arguments, and the briefs are available here.)

I don't see how any right thinking person can look at the arguments and not think many people are being approved for trial who are not really "competent" in a meaningful sense. Indiana's solicitor general told the court that self-representation can be denied, before trial, “where the defendant cannot communicate coherently.” But the discussion went on to suggest a possible higher standard for situations when a person, after being declared competent, "put on 'gibberish'” as a defense.

Someone please explain what's the difference between "cannot communicate coherently" and "gibberish"? That's splitting the hair mighty thin, if you ask me. There's little question that many people suffering from serious mental illnesses are routinely approved for trial. Our prisons are full of them. According to USA Today ("High court to consider self representation," March 22):

Since a 1993 Supreme Court ruling addressed the issue of the competency standards for waiving the right to counsel and pleading guilty, at least 60 legally competent but mentally impaired defendants have tried to represent themselves, according to the state.

In 1995, a Texas man defending himself on capital murder charges tried to subpoena Jesus, wore a cowboy outfit to court, and assumed an alternative personality when testifying.

Perhaps the fact that someone can only contribute "gibberish" to their own defense is evidence that they shouldn't have been declared "competent" in the first place.

Are Wire writers promoting jury nullification guilty of aggravated perjury?

Reacting to writers from the brilliant TV series, The Wire, promoting jury nullification in drug cases in Time magazine, a Texas prosecutor submitted a guest piece over at Defending People to express his view that the writers, had they made the statements, in Texas, would be guilty of aggravated perjury by virtue of suggesting that others violate their jurors oath. Go read it for yourself and see what you think of the argument.

UK web activism on dyslexia includes focus on prisons

Having written previously about Texas' failure to target the link between illiteracy and crime, particularly for children with dyslexia, I was especially pleased to find the Dyslexia Online Magazine, a British site whose contents made me think this issue has taken hold more strongly on the political front in the UK than in America.

Dyslexia Online contained several interesting items including a December 2007 petition from dyslexics demanding that the British Prime Minister tackle the problem of their over-representation in prison. Another mentioned Scottish efforts beginning in 2001 to reduce recidivism by diagnosing and treating dyslexic prisoners:

Future inspections of Scottish prisons will report on efforts to screen inmates and offer help, pledged Clive Fairweather HM Chief Inspector of Prisons. An estimated 4-10 per cent of Scots are dyslexic, but a study at Edinburgh University by Jane Kirk, a dyslexia adviser, and Gavin Reid, a senior lecturer, found that in a random sample of 50 young offenders at Polmont Institute, half were affected. ...

Mr Fairweather pledged to "mention" how the issue of dyslexia was handled in prison inspection reports in a bid to put the problem more firmly on the agenda. Faced with challenges from suicides and drugs, education was far down the prisons needs list.
Mr Fairweather said, "and dyslexia is even further down."

But Mrs Kirk responded "Of all the problems and disadvantages facing offenders, dyslexia is one of the easiest to deal with."

According to a recent article, Dyslexia within the prison service, "Half of all [British] prisoners are at or below the level expected of an 11 year old in reading, two-thirds in numeracy and four-fifths in writing. Another piece focuses on Albert Einstein's dyslexia and his long-suffering mother's years spent helping him overcome it, wondering if "the path to Albert Einstein's Nobel Prize [was] paved with the stones of his mother's worry."

Like a lot of other preventive measures, identification and special training for dyslexic kids is more effective if it's done early on through the schools, without the stigma of resulting from punishment for behavioral problems. But inevitably the criminal justice system winds up with many such kids, and just like the schools, many juvenile justice programs failing to identify and treat dyslexia.

From dyslexics imprisoned to those, like Einstein, reaching the heights of intellectual achievement - this site provides a lot of fodder for thought on what can be done to prevent dyslexics and others with reading problems from winding up in prison for lack of better options.

Begging your pardon: President's use of pardon power parsimonious compared to predecessors

Mary Flood over at the Chronicle's Legal Trade blog has the raw list of presidential pardons and provides excellent information in the comments on the scope of pardon power.

Hardly Reaganesque, President Bush has pardoned fewer than half as many people as either Ronald Reagan or Bill Clinton, the last two-term presidents, did in their tenures, AP reports - 157 so far. The two cases from Texas pardoned were notable less for their favoritism than for their absolute commonness - a gun dealer from South Texas and a Denton septuagenarian convicted of wire fraud - and a distance of more than twenty years from conviction:

Mariano Garza Caballero Brownsville, Texas
Offense: Dealing in firearms without a federal firearms license; 18 U.S.C. §§ 922(a)(1) and (2). Sentence: November 1, 1984; Southern District of Texas; 34 days imprisonment, four years probation, and a $1,000 fine.

Carl Harry Hachmeister Denton, Texas
Offense: Conspiracy (to commit wire and mail fraud); 18 U.S.C. § 371.
Sentence: January 22, 1985; District of Utah; three years probation and $39,330 restitution.

The rest of the list includes drug peddlers, embezzlers, and other reformed offenders who surely must each representat of a much larger class of people similarly situated. Why the President would pardon these 15 and not the tens or even hundreds of thousands of other reformed felons with long-ago offenses is anybody's guess. As for the two from Texas, here's more from AP:

Carl Harry Hachmeister, of Denton, said he found out Monday when a caller from the Department of Justice informed him of the pardon.

"You get in trouble once," he said. "Everybody makes mistakes and I made a mistake and I paid for it."

Hachmeister was convicted of conspiracy to commit wire and mail fraud in Utah and sentenced in January 1985 to three years probation. He was also ordered to pay $39,330 in restitution.

Hachmeister said he owned his own business tiling floors in homes and businesses but is retired. He declined to explain his conviction, calling it "a long, drawn-out thing."

Also pardoned was Mariano Garza Caballero of Brownsville. He was sentenced in 1984 to 34 days in prison and four years probation for dealing in firearms without a license.

The Associated Press could not locate a working phone number for Caballero.

There's nothing particularly conservative, much less "compassionately conservative," about stingy use of pardon power, so other than a general failure to pay attention to the matter, I couldn't explain why the President has pardoned so many fewer than his predecessors. I'm happy for the Texas two, but Hachmeister's observation, "everybody makes mistakes," puts its finger on what bothers me about this pardon list: Why pardon this handful of people, when so many just as worthy are in the same situation?

Doc Berman called the batch of 15 pardons and one commutation "uneventful," and here's a brief discussion of the list from the blog "Pardon Power." Also, h/t to Doran for the head's up on Mary's post.

Rockwall DA sentenced for corruption

Named statewide "Prosecutor of the Year" in 2001, the Rockwall County DA will now join those he sent to prison after a conviction for theft by a public servant, including using government funds to purchase a high-end video gaming computer for personal use. (See this hilarious cartoon from Penny Arcade for a sense of what the trial must have been like.)

"A public official, like Caesar's wife, must be above suspicion," said a Dallas judge before sentencing Rockwall County District Attorney Ray Sumrow to four years in TDCJ. "Certainly a great deal of suspicion hung over your tenure in office, Mr. Sumrow. I'm sure you sent people to prison for far less than the charges against you. ... You have basically slandered the sheriff and his employees," the judge said. "They are in no way responsible for your actions."

See MSM coverage from the Dallas News, and also here, and from the Greenville Herald Banner. (An aside: Didn't it used to be the "Herald Banner Press"? Maybe they shortened it for the internet age.) Overseas, the gaming aspect of the story has picked up traction. As a bonus, the Dallas News dredged up this blast from the past from Mr. Sumrow, speaking in 1993 as a special prosecutor in Tarrant County:

"All public officials, myself included, should realize that they take an oath, and they have a responsibility to live up to that oath ... the public has a right to have good, elected public officials.

"If we don't police ourselves, there's no one else to do it."

Perhaps while he's sitting in Huntsville or Palestine for the next year, Mr. Sumrow will have time to get that last line emblazoned on a prison tat.

Foundation report criticizes Harris County DA for unnecessary detention, prosecution of juveniles

UPDATE FROM THE RUMOR MILL: I'm hearing through the grapevine that Harvey Hetzel, director of the Harris County Juvenile Probation Department who is quoted in the Houston Chronicle article, resigned today, possibly in response to this report. More on this development as I get it. MORE: Hetzel did step down, but the reasons are unclear and could relate to employee grievances lodged behind the scenes.

With a District Attorney's GOP runoff in full swing, here's an issue I hope both candidates address before Harris County voters go back to the polls -

Decision making in Texas' largest county about juvenile cases is haphazard and ill-focused, with frequent misdemeanor referrals by the District Attorney's office clogging the system with low-level cases that detract from more serious offenders, according to a new study by the Annie Casey Foundation. Reported Bill Murphy at the Houston Chronicle ("Report criticizes Harris County juvenile facilities," March 24):

Local judges, probation employees and others are operating under a patchwork of sometimes quirky standards for deciding which youths get sent to Harris County's crowded juvenile detention facilities, according to a new study.

One juvenile court judge, for example, orders youths with cases in his court into a detention facility if they miss school seven days, a report by the Annie E. Casey Foundation found. Other youths who possibly should be detained before trial are released because there is no space to hold them.

"The development of a uniform, objective approach to detention decision-making should be a high priority," the report says.

A committee that will be chaired by County Judge Ed Emmett and include Houston Police Chief Harold Hurtt, Commissioner Sylvia Garcia and juvenile court Judge Mike Schneider will hold its initial meeting Wednesday to discuss ways of implementing the report's recommendations.

The report is a product of the Juvenile Detention Alternatives Initiative, a wing of the Casey Foundation. The initiative will continue to advise the county and its officials on ways to thin out detention facilities.

The report said the district attorney's office clogs up the juvenile justice system and takes time away from serious cases by filing charges against all youths accused of Class A and B misdemeanors.

Class B misdemeanors include shoplifting, possession of less than two ounces of marijuana and evading arrest. Class A misdemeanors include assaults related to fighting and thefts.

Harvey Hetzel, director of the county Juvenile Probation Department, said the system would be less burdened if the district attorney's office deferred prosecution in some of these cases.

But Bill Hawkins, chief of the District Attorney's juvenile division, said juvenile crime would rise if prosecutors didn't hold youths accountable and bring them to court. In Harris County, too many juvenile cases went the deferred prosecution route until the mid-1990s, and juvenile crime increased, he said. ...

The county spent $58 million to renovate the former Criminal Courts Building at Fannin and Congress and turn it into the Juvenile Justice Center.

Within months of its opening two years ago, juvenile court judges complained that lower-level floors reeked of sewage, courtroom doors were noisy and courtrooms lacked audio-visual equipment.

Mr. Hawkins has a little revisionist history going on here to justify their current practices. Houston has one of the highest crime rates of any big city in the nation, so his fear that the town will go back to the bad old days seems just a bit contrived. Some of the clogs are caused by a short-staffed juvenile probation department that can't timely process its evaluations of youth:

The report said some youths are held unnecessarily while awaiting psychological evaluations sought by the Juvenile Probation Department.

"Surely there could be less of these (evaluations), and most of them could be completed on an out-of-custody basis," the report said. "The cost of this current practice may be exceptionally high."

Waiting around in detention because you haven't been evaluated isn't contributing to public safety, as Hawkins absurdly implied, it's deterring it, keeping kids in detention longer who don't need to be there and diverting resources from more serious offenders. I couldn't find a copy of the report online, but here's the website for the foundations Juvenile Detention Alternatives Initiative. I'm sure it will be posted there soon.

Number arrested with no charges filed closer to 2% than half, as claimed in Rothgery case

Well, I've got a little more clarity and some data on the question of how many Texans are jailed without charges being filed, but it doesn't seem to be as high as attorney Greg Coleman claimed last week arguing before SCOTUS in the Rothgery case. Coleman told the court "it may happen in half of the cases, where an individual is arrested, magistrated, released, and no official charges are ever brought." An attorney friend who'd read all the briefs and closely tracked the case clarified Coleman's reference:

Coleman is talking about cases in which no indictment is filed, which is different than no charges being filed. He consistently conflated those 2 concepts during his argument and briefing. Ds may be arrested and released without charges w/in 48 hours of arrest, but once they are brought before a magistrate they are accused of a crime, usually via a preliminary charging document such as a complaint.

That clears things up somewhat, but even defining "charges" as "indictments" (an "information," for misdemeanors), which does indeed conflate the two terms, I can't find any data supporting Coleman's assertion that such cases represent half of arrests. The closest on-point estimate I'm aware of came from a 2005 study (pdf) performed by the Public Policy Research Institute at Texas A&M on behalf of the Texas Indigent Defense Task Force (see pp. 28-29):

Since implementation of the FDA’s prompt appointment standard [for jail cases], there exists a widespread perception that counties incur significant costs for attorney’s fees in cases where no charges are filed. Objective data reported by Texas counties in their annual Expenditure Report demonstrates that this concern is greatly exaggerated. In FY 2004, 55% of Texas counties (140 of 254) had zero cases in which an attorney was appointed in a case where the defendant was never charged by information or indictment. At a statewide level, “un-filed” cases represented 2% of all cases in which attorneys were appointed to indigent defendants

So where does this figure come from that as many as half of arrests never result in an information or indictment? No source I can find confirms that, but I'll keep looking.

National innocence data understated by excluding drug war exonerations

Adam Liptak has an article in the New York Times ("Consensus on counting the innocent: We can't," March 25) making a statistical point nationally about exonerations that I'd made previously for Dallas County, Texas' exoneration capital: The total exonerations routinely counted only include cases overturned through DNA evidence, but a lot more innocent people are exonerated than that. Indeed, Liptak's discussion shows why many of the numbers for innocent people convicted that are routinely bandied about have little validity at all, because they exclude so many offenses. Wrote Liptak:

A couple of years ago, Justice Antonin Scalia, concurring in a Supreme Court death penalty decision, took stock of the American criminal justice system and pronounced himself satisfied. The rate at which innocent people are convicted of felonies is, he said, less than three-hundredths of 1 percent — .027 percent, to be exact.

That rate, he said, is acceptable. “One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly,” he wrote. “That is a truism, not a revelation.”

But there is reason to question Justice Scalia’s math. He had, citing the methodology of an Oregon prosecutor, divided an estimate of the number of exonerated prisoners, almost all of them in murder and rape cases, by the total of all felony convictions.

“By this logic,” Samuel R. Gross, a law professor at the University of Michigan, wrote in a response to be published in this year’s Annual Review of Law and Social Science, “we could estimate the proportion of baseball players who’ve used steroids by dividing the number of major league players who’ve been caught by the total of all baseball players at all levels: major league, minor league, semipro, college and Little League — and maybe throwing in football and basketball players as well.” ...

What the debate demonstrates is that we know almost nothing about the number of innocent people in prison. That is because any effort to estimate it involves extrapolation from just two numbers, neither one satisfactory.

There have been 214 exonerations based on DNA evidence, almost all of them in rape cases, according to the Innocence Project at the Cardozo School of Law. But there is no obvious control group to measure these exonerations against.

Virginia, though, has discovered thousands of closed rape files from 1973 through 1988, many with untested biological evidence. DNA testing of a preliminary sample of 31 of them yielded two wrongful convictions. Those numbers are too small to be reliable, of course, but they would suggest a false conviction rate of 6 percent.

Even that rate may be low, said Shawn Armbrust, the executive director of the Mid-Atlantic Innocence Project. Ms. Armbrust said investigators in Virginia were able to get results in only 22 of the 31 tests, suggesting a false conviction rate of 9 percent.

The other important number comes from death row. According to the Death Penalty Information Center, 127 death row inmates have been exonerated.

Here we do have a control group. There have been more than 7,000 death sentences since the Supreme Court reinstated the death penalty in 1976.

But exoneration in the capital context is a funny concept. It suggests complete vindication, but its real meaning is generally narrower. ...

Professor Gross concluded that the false conviction rate for death row inmates has ranged from 2.3 percent to 5 percent. Were even the lower end of that range applied to people who received prison sentences of a year or more in the last three decades, he wrote, it would suggest that about 185,000 innocent people have served hard time.

But extrapolating from capital crimes to felonies generally is problematic whatever the number of exonerations.

Scalia's number is surely low. Most defense attorneys certainly think the number of innocent people who plea guilty among their clients is higher than that by orders of magnitude. Indeed, the counts of individual exonerees seem incomplete on their face. If, as Liptak says, all estimates of innocent people being convicted come from DNA exonerees and death row, that's a very narrow data pool.

I don't keep a running tab, though maybe I should start, but I try to pay attention to most of Texas' innocence cases. Far and away, if Texas' statewide figures are any guide, drug crimes account for as many or more wrongful convictions than rapes or capital murders. Our Texas media, though, has made the same counting error identified by Liptak. The Dallas Morning News' count of exonerees since 2001 excluded exonerees from the Dallas fake drugs scandal, for example. I wrote in January that their:

headlines trumpeting fifteen recent Dallas exonerations actually understate the problem. A lot more innocent people than that have seen their convictions overturned in Dallas since 2001.

At a minimum, another 24 people were wrongfully convicted in Dallas as part of the "fake drug" scandal and were ultimately exonerated. That makes the current total 39 people exonerated since 2001.

There very well may be more.

Similarly, if you were going to create a true statewide number of exonerees for Texas since 2001, you'd have to include about three dozen pardoned from Tulia, another dozen or so exonerated in Hearne, and quite a few others, the majority stemming from the drug war. That number easily surpasses in short order the number of DNA-based exonerations that are happening (mostly) in Dallas and Houston.

So no, it's true, we don't know how many innocent people have been convicted and exonerated, much less how many more are languishing in prison, either for violent crimes or lesser offenses. However, I think it's a positive sign that at least people are beginning to ask the question, and demand more accountable answers.

MORE: From Sentencing Law & Policy.

Drug task force case at SCOTUS would deputize informants to override Fourth Amendment warrant requirement

The threshold for police securing search warrants, or searching without them, has been chipped away in recent years to absurdist points, where Fourth Amendment law now has a "through the looking glass" feel that frequently seems to ignore the plain language in the Bill of Rights.

The Supreme Court has agreed to take a case, Pearson v. Callahan, generated by a Byrne-grant funded drug task force in Utah that I fear will further emasculate the Fourth Amendment in the name of expediency and the drug war. Reports Linda Greenhouse in the NY Times. (Justices to weigh search and consent, March 25):

Several federal circuits have adopted what has come to be called a consent-once-removed exception to the Fourth Amendment’s warrant requirement. The theory is that a suspect who consents to the entry of someone who is really an agent of the police is also, albeit unknowingly, agreeing to let the police enter as well. The police do not need a warrant to enter and search a home if they have the permission of a person authorized to give it.

So-called consent searches are already pretty coercive and rarely refused. To claim that police can deceive you into giving consent seems headed pretty far down a slippery slope. While they're asking for a precedent in a case where an informant's account was confirmed with a wire, it's easy to see how the concept of "consent once removed" could become a lot more loosey goosey than that. How hard is it to leave someone surveilling the location and go get a warrant? It's an inconvenience, at most. In a pre-planned, undercover buy-bust, police could and frequently do easily work with a judge and ADA ahead of time to process a search warrant pretty quickly.

The Fourth Amendment, as a reminder, declares that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." At least the drug task force guys have the "no warrants shall issue" part down!

An odd twist, though, makes me wonder whether we'll actually get an answer to that question in this case. In accepting the case, though, SCOTUS added an issue of its own, instructing counsel to make arguments on an issue neither had raised in their previous briefs. Linda Greenhouse admirably adumbrated the implications.

The Supreme Court last considered this issue in a 2001 decision, Saucier v. Katz, which required courts to consider the issue in a precise order, first deciding what the constitutional rule should be and whether the Constitution was violated, and only then deciding whether the issue had been sufficiently unclear at the time so as to make the defendant entitled to immunity.

The rule of Saucier v. Katz has been severely criticized, both inside the court and outside, for making judges do the hard work of deciding disputed constitutional issues that need not have been decided if, at the end of the day, the lawsuit was going to be dismissed on the ground of official immunity.

The court’s purpose in deciding the Saucier case the way it did was to avoid a situation in which the law is never clarified because its very lack of clarity entitles defendant after defendant to official immunity. Only by deciding whether a constitutional right was violated in the first place would “the process for the law’s elaboration from case to case” be preserved, Justice Anthony M. Kennedy wrote in the Saucier majority opinion.

But in the view of the decision’s many critics, it has not turned out that way.

Judge Pierre N. Leval of the United States Court of Appeals for the Second Circuit, in Manhattan, said in a lecture at New York University in 2005 that the Saucier decision was “a puzzling misadventure,” imposing on judges “a new and mischievous rule.” It was “a blueprint for the creation of bad constitutional law,” he said, because often the constitutional holding would not actually matter to the parties in a case that could be resolved more simply through a decision on immunity.

In an opinion last year, Justice Stephen G. Breyer called for the Saucier decision to be overruled as a “failed experiment.” His opinion came in the “Bong Hits for Jesus” case, in which the court struggled to decide whether a high school principal had violated a student’s First Amendment right to free speech by suspending him for displaying a 14-foot banner bearing those words.

The court ruled by a bare majority that the answer was no. Justice Breyer said the entire exercise could have been avoided if the court, acknowledging that the question was close, had simply granted the principal immunity from suit.

Although Justice Breyer spoke only for himself in that case, Morse v. Frederick, he evidently captured his colleagues’ attention. In its order on Monday granting the appeal in the Utah case, the justices instructed the lawyers for both sides to brief and argue a question that neither side had raised: “Whether the court’s decision in Saucier v. Katz should be overruled?”

So if Saucier v. Katz becomes part of the equation, there's a chance SCOTUS simply doesn't decide the consent once removed question, since the issue would become moot if it reversed itself and said courts should consider the qualified immunity question first. In this case, even if SCOTUS decides the search was unconstitutional, there's pretty clearly evidence of disputes in constitutional interpretation among appellate courts (three circuits have approved it, the rest have not). Under current court decisions regarding qualified immunity, that argues strongly in the officers favor for them not being sued personally, whatever the constitutional merits of their actions. So if SCOTUS says that issue should be decided first, it conceivably could reverse Saucier v. Katz and just decline to address the underlying question.

The whole idea of consent once removed really seems to me like a slippery slope, not only diminishing further the constitutional warrant requirement, but more firmly ensconcing into law the idea of confidential informants (who are usually themselves criminals) as direct agents of law enforcement with authority on their say so to overturn the warrant requirement.

Under Texas law in drug cases, for example, informants' testimony must be corroborated to gain a conviction, but an undercover officer's testimony does not. In refusing to require corroboration for police officers, an explicit distinction was made - the Lege justifiably considered officers' testimony more reliable than drug snitches. While those of us who followed the Tulia case and paid attention to undercover drug officer Tom Coleman's perjury trial thought officers should be corroborated, too, it was a reasonable distinction to make. Consent once removed makes the opposite assumption: That an informant is as reliable as an officer.

I'd like to think that SCOTUS took this case to put a decisive end to the erosion of Fourth Amendment by dribs and drabs, but I suspect it's more a case of the court attempting to clean up its own pass mess from Saucier v. Katz. And that may be a good thing. President Bush's additions to the court, in particular, seem so far to be the type of judges that conflate the concepts of conservative and "pro-prosecution." I suspect I wouldn't like how this particular batch of justices will trend on Fourth Amendment cases, anyway, so maybe it's better to put as many of those decisions as possible off as long as possible.

MORE at the Volokh Conspiracy from Orin Kerr who is an attorney in the case.

Dallas News: "Texas actually predestines some children for a life of crime"

A get tough approach to juvenile corrections has "inadvertently constructed a pipeline to youth prison," declared an editorial this morning in the Dallas News, discussing research presented at a recent Children's Defense Fund conference in Houston making the case that "Texas actually predestines some children for a life of crime. Their findings help explain why youth crime in North Texas isn't abating despite police crackdowns and high incarceration rates."

Bully says she didn't pick Bexar needle exchange fight

Those tracking the saga of Bexar County DA Susan Reed's efforts to stop a legislatively approved needle exchange pilot should be sure to read Karen Brooks' story this morning in the Dallas News. I was shocked to see the brazenly false declaration, "We did not go out looking for this," First Assistant District Attorney Crag Herberg said. "This was not on top of anybody's agenda in this office."

What?! That's patently untrue. From the first, Susan Reed went out of her way to oppose implementation of the new law, declaring she would prosecute anyone engaging in a county-run needle exchange pilot. Then, when police gave a Class C misdemeanor citation to 73-year old chaplain Bill Day (profiled in Brooks' article), Reed's office insisted the charge be bumped up to a Class A misdemeanor, which carries a potential sentence up to one year in the county jail.

She didn't have to do any of that. In fact, its not her role to second guess the legislature. She can say she opposes what the legislature did, but she can't stand in the way once its done. And now, after she did so, she claims this fight was thrust upon her. I wish her office weren't so disingenuous about playing the victim. You went out of your way to pick this fight, Ms. Reed. Own it, will ya?

Some may choose a 'stop snitching' code, but others acquiesce in it

Here's a first-hand narrative that illustrates why police criticisms of the "Stop Snitching" meme over the last couple of years sometimes receive a mixed reception from people who live in crime-ridden neighborhoods. Anyone interested in the subject of snitches vs. witnesses, or the the mental weighing of interest and consequence that goes into someone's decision to report a crime, should be sure to read the whole thing from yesterday's New York Times ("A Snitch Like Me," March 23).

The author, identified only as Toure', offers a terrific discussion of the internal mental wrangling he went through before deciding to call the police about a crack house he'd identified in his neighborhood. Perhaps tellingly, what put him over the edge was a decision (not his own) to stop renting and purchase a home in the area! (There's nothing like a good ol' American concern about property values to make you more community minded!). Here's how he described his reaction to learning about a drug operation in his neighborhood:

For a day, I patted myself on the back for discovering the little crack house hiding nearby. The following day I freaked out.

Now that I knew, I realized that I was tacitly aiding and abetting their immoral, illegal and dangerous behavior. What if one of the crackheads attacked my wife as she walked home? What if a kid from the day care center near the crack house found a vial on the sidewalk?

What if someone unaffiliated with the den of chemical madness got shot? What was their presence doing to the property value and, more important, to the zeitgeist of Fort Greene?

My only real option was to call the police. But that option was fraught with psychological problems.

As a black male New Yorker, I’ve long regarded the boys in blue as the opposition. I know if the dice had fallen differently, I could have been Amadou Diallo or Abner Louima or Sean Bell. And I come from the hip-hop generation, in which snitching against a black person is treason.

But would it really be snitching? The term truly refers to criminals ratting on other criminals, not taxpaying citizens reporting what they’ve seen criminals do. And should I protect poisoners of people and the neighborhood just because they’re black?

IN the midst of my prolonged internal conversation, I got into a fight with my live-in landlord and was given a month to move out. For a week, my wife and I combed Fort Greene and began the process of buying a sexy modern apartment just eight blocks away. Now we had just a few more weeks to live near the little crack house.

But as we closed on our new place, my relationship with Fort Greene deepened. I was no longer a renter who might float away to another neighborhood. I would soon be an owner with a stake in the future of the community. Could I allow these people to drag down my beloved neighborhood and say nothing?

That account made me laugh out loud, but I'll bet it's pretty typical. As a renter, the guy thinks it's cool to know about the "secret" New York, or perhaps thinks about the moral consequences of what happens if someone gets shot, or even worries about his family's safety. But he said nothing. Then he decided to purchase a house and all of a sudden worries that the crack den might "drag down my beloved neighborhood."

I've never seen statistics, but I bet it's true home owners call the police more frequently when they see crime than do renters. (Should those asking people to "start snitching" really be seeking expanded home ownership?)

But the really ironic part of the story is what happened after Toure' made the decision to call the police. Nothing. It turns out, if you're not being coerced by police or prosecutors, it's a lot of work to "snitch." He discovered that:

it’s not easy to drop a dime. I spoke to one cop who was marginally interested in my story and told me to call back and speak to someone else. I called again the next day and spoke to the sergeant in charge of controlling drugs in our area.

He kept me on the phone way longer than was comfortable. He asked me what people yelled to gain access to the place, and how I knew the white stuff was contraband. He asked me if I’d testify in court, and if his guys could sit on our roof or in our apartment and surveil them. I wasn’t down with any of that. He said O.K., they’d find a way of investigating them and get back to me.

In my last week in the apartment, I spent a lot of time packing and watching. The sergeant called back to say they’d tried to infiltrate the crack house but failed. He said I should e-mail Police Commissioner Raymond Kelly.

The day before the movers came, no longer were the eight or nine crackheads yelling into the window to gain access; now they all had keys to the building. I guess they’d felt the heat — and made some changes.

Now I live eight blocks away, but sometimes my wife sends me to South Oxford for sushi from the corner restaurant. One night around 11, I turned my head just in time to see a crackhead dipping into the building. The little crack house that could is still chugging along, right under everyone’s nose.

That experience is probably typical of many witnesses who report crime. Even if you start snitching, frequently nothing happens unless there's something in it for the cops. When I was director of ACLUTX's Police Accountability Project, it's fair to say I heard nearly as many complaints of inaction by police as I did of alleged police misconduct (and in that position, I heard a lot of both). That's not to say every criticism was warranted, just that the experience made me aware that a persistent public perception exists among those you'd categorize as concerned citizens - people with stakes in the community who want to stop crime - that, as this author put it, "it's not easy to drop the dime."

If law enforcement tells folks through the media to "start snitching" then does nothing when they call, what incentive do people have in the future to cooperate with police? This fellow's experience, extrapolated more broadly, would lead wide swaths of the public to think reporting crime to police is a waste of time, that if they go out on a limb to improve their community that law enforcement won't follow through on their end. In that sense, I think some people don't choose to believe in a "stop snitching" code so much as they acquiesce in it.

Easter celebrates rebuke of an unfair justice system, but too few Christians seem to notice

Today, all of Christendom celebrates the victory over the grave of a man who was wrongfully convicted and executed, but I'm not sure most Christians ever think of the Passion story in terms of those criminal justice implications.

I wonder how many preachers in their Easter sermons this morning will ask parishioners to remember innocent people who've been convicted, or remind them that Jesus, were he convicted in modern times, might well be sitting on death row waiting for his appeals to be processed? Will any suggest that the Passion story may question the wisdom of the death penalty, since innocent people from Christ's time to the present day have been sentenced to death?

Will ministers suggest to their flocks that if Jesus Christ, perfection's own embodiment, could be wrongly sentenced for a crime, it could happen to them or to anyone so they should show compassion for the accused? Will any link Christ's own criminal conviction in the Passion story with his demand that Christians visit those in prison and provide them comfort?

And finally, when voices from the pulpit proclaim that Christ's victory over death "paid for the sins of all," will any religious leaders go on in the next breath to explain how Christians can then justify imprisoning 1 in 99 American adults, punishing them for sins already paid for by the blood and sacrifice of the Son of God?

Let me know if any of these themes cropped up in the Easter services you attend today. I hope so, but I'm willing to bet not.

Federal bill backing mental health courts a teaspoon of remedy for an oceanic problem

Good news and bad news coming from the federal level regarding mental health and crime, reports Kristin Houle over at Prevention and Punishment. The good news is that the President and a bipartisan coalition support legislation currently moving in the US Senate to expand resources and focus on "mentally ill offender treatment and crime reduction":

On March 6, 2008, members of the Senate Judiciary Committee passed S. 2304, the Mentally Ill Offender Treatment and Crime Reduction Reauthorization and Improvement Act (MIOTCRA). The legislation, introduced last year by Sens. Edward Kennedy (D-MA), Pete Domenici (R-NM), Patrick Leahy (D-VT) and Arlen Specter (R-PA), will now be sent to the Senate floor for consideration.

The bill, which passed the U.S. House of Representatives in January with overwhelming bipartisan support, will help provide states and counties with the resources needed to design and implement collaborative efforts between the criminal justice and mental health systems. The legislation offers grants to communities to develop diversion programs, mental health treatments in jails and prisons, and transition and aftercare services to facilitate reentry into the community. The bill also provides for the cross-training of criminal justice, law enforcement and mental health personnel.

With bipartisan support in both the House and the Senate, the legislation will raise the authorization level of MIOTCRA from $50 million per year to $75 million per year and will extend the authorization through 2014. The bill will also reauthorize the Mental Health Courts grant program (Public Law 106-515) and will require that a study be conducted on the prevalence of mental illness in prisons and jails."

More information is available from the Consensus Project.

Earlier posts on the MIOTCRA are available here and here.

The bad news is that expanding federal resources by $25 million will do little to help given the scope of the national problem, and I don't know that we really need more studies of mental illness and crime so much as resources aimed at diverting offenders into treatment instead of warehousing. We know their "prevalence": Thirty percent of prison inmates in Texas are past clients of the state's indigent mental health system. We don't need to study the problem, we need Congress to fund more pilot solutions so we can study the results and find out what works.

I'm a fan of the idea of mental health courts, although I haven't seen data yet from those that have (recently) begun in Texas. (Harris County has operated a mental health court since 2006.) To me, adjudication of mentally ill offenders is an area where a less adversarial, problem-solving approach benefits the defendant, the taxpayers' bottom line, and also public safety. There's nothing either constitutionally prescribed nor inherently beneficial about the adversarial system, and while I don't want to toss it out entirely, as commenter Jigmeister accused me of recently, it makes sense when adjudicating the mentally ill to mitigate its rough edges in the same way that happens in family court, where adversarial interests are tempered by the requirement to consider "the best interests of the child." (I'll likely have more to say on this topic soon, as several recent items combined with Jigmeister's complaints have me thinking about it.)

In the meantime, adding $25 million for mental health courts and a study is a nice little bipartisan pat on the head from Congress, if it passes, but it's a teaspoon of remedy for an oceanic problem.

RELATED

• Grayson County applies to create mental health court
• Mental health courts: A strategy that works?
• Are there options to warehousing mentally ill offenders in jail?
• McKnight: 'Mental health consumers don't belong in jail'
• When I was sick, did you imprison me?
• Counties explore solutions for mentally ill in Texas jails
• New Austin PD office will defend mentally ill
• Travis County MH public defender opens

Another "holding pen for wetbacks"

Another immigration detention facility to house children and families like the one in Williamson County may be coming to Central Texas, except that government officials don't all call it an "immigration detention facility." In a public agenda for the Creedmoor Water Supply Corporation, a public entity with an elected board providing water service to the proposed facility, they called it a "holding pen for wetbacks."

You can't make this stuff up. I wonder if that will be the name on the facility's signage? Via Eye on Williamson County.

Drug offenders dominate new prisoners from probation revocation

What types of offenders are being revoked from probation to Texas prisons? I took this data from a fact sheet created by TDCJ-CJAD discussing research on the impact of probation revocations, both for technical violations and for new offenses, on Texas' prison population:



Perhaps the most critical stat here: 37% of all probationers revoked to prison in Texas in 2006 were sentenced for a drug offense, more than any other category of offender. Also notable, if unsurprising, are the low numbers of DWI and sex offenders receiving early probation termination compared to other categories.

The fact sheet also broke out data on offenders revoked for probation violations as opposed to a new offense, concluding that 32% of offenders revoked as "technical violators" had been arrested (but not charged) during the 12 months prior to their probation revocation.

The data on arrests and technical violators adds some meat on the bone to TDCJ boardmember and Gillespie County's appellate lawyer Greg Coleman's astonishing assertion this week before SCOTUS that half of arrests don't result in charges, though I still find it hard to fathom the number could be that high.

End-of-Week Roundup

Here are a few short items that deserve Grits readers' attention:

Jail 'em now, accuse 'em later
Fort Worth Star Telegram editorial writer Linda Campbell offered up an excellent editorial about the Kafka-esque implications of the Rothgery case argued this week before the Supreme Court, discussed by Grits here and here. She was as astonished by the arguments for Gillespie County as I was that it was constitutional to lock a defendant up in jail for weeks or months without charging them or providing them access to an attorney. Incidentally, Gregory Coleman, who argued the case for the county and was "pummeled" by Scalia and other Justices, in Campbell's words, is one of Governor Perry's appointees to the board of the Texas Department of Criminal Justice. He chairs the TBCJ legal committee and formerly clerked for Justice Clarence Thomas, and also for Edith Jones on the 5th Circuit.

What does the justice system owe to defendants' children?
Having discussed recently whether the justice system "owes" anything to defendants' families, I was saddened to see this post from Doc Berman questioning whether a dying child's wish to have her father at her bedside should justify sentencing leniency.

Tyler deputies using inmate labor for personal profit
Four deputies in Smith County including the Lieutenant who ran the low-risk detention facility were fired for a scheme to use trustees to collect and sell scrap metal and pocketing the profits. Other deputies may also be involved, according to the Tyler Morning Telegraph, which said Sheriff J.B. Smith also cited possible misappropriation of "Estray funds," which "are monies collected from the sale of stray livestock rounded up off county roadways that no one has claimed. He further stated these animals are publicized in legal advertisements and are only sold after all attempts to locate the owner have failed. Monies collected from the sales are deposited into the county’s general fund." No word on how much money we're talking about, but I'll bet those funds haven't been audited in a while, not just in Smith County but most places.

Don't Mess with Texas C&W Singers
Speaking of alleged police misconduct, two police officers were indicted for kidnapping and aggravated assault in Dallas after C&W singer Steve Holy invited them to his home along with another friend to play foosball after a bar closed. Reported AP, "Holy told police the officers pointed their guns at him and the friend and ordered them on the ground. Before the officers left, the police report said, Anderson told Holy that he'd kill him if he said anything." Here's a question for readers: If Mr. Holy a) wasn't a wealthy country and western singer and b) didn't have a witness, do you think the department would have acted on his complaint?

Ain't technology grand?
Here's a tip: If an immigration or law enforcement officer attempts to blackmail you for sex, record the conversation with your cell phone.

Reflections on death row
The Dallas News has a jailhouse interview with Thomas Miller-El, the now-former death row inmate whose name became nearly synonymous with two decades of litigation about racial discrimination in Dallas jury selection. The victims' family are unhappy that a new plea bargain will keep him from receiving the death penalty ("My son just got murdered again in 2008," said the father), but it remains unlikely Mr. Miller-El will ever see the free world again. RELATED, from NPR, High court says blacks kept off jury in murder case.

TBCJ to meet in Austin
For those interested, there's a TDCJ board meeting in Austin next week. Here's the agenda.

Collin County's push toward stronger probation not as flawed as earlier, reported data implied

Earlier today I published data from a TDCJ-CJAD (adult probation) report (pdf) in December, citing the results from several counties that received state grants aimed at reducing probation revocations. I mentioned how surprised I was to find one county - Collin, where McKinney is the county seat - had not only more probation revocations after getting its grant, but 48.8% more! Compared to 16% declines in revocations in Dallas and Houston, that seemed hard to believe.

Not wanting to throw the department under the bus for a statistic that, the more I thought about it, seemed odd and unlikely, I called Collin County probation director Bob Hughes to find out the reasons straight from the horse's mouth. I left our conversation satisfied that the massive increase in revocations reported (a 48.8% bump), is surely an inaccurate number.

Not that it wasn't the data his department reported. The CJAD report compared the '05-06 biennium to '07-08 numbers, noted Hughes, and the first batch of data for the '05-06 biennium was severely underreported, he said, for several reasons.

Primarily, before recent legislative changes made revocations a factor in agency funding, nobody really kept track of them closely (!) and revocations often just weren't logged into the system. Hughes said they've corrected that gap in data collection, and he's confident the second biennium's data (and data produced thereafter) will be more complete.

Another factor that contributed to such high revocation rates, he said, was that 61% of probation revocations granted during the last biennium in Collin County were actually filed with the court before legislation in the 79th Legislature placed a new emphasis on limiting them. From this point going forward, he said, all the revocation cases at Collin CSCD have been brought under the new criteria.

As for what his department did with the grant money, I think it shows exactly why strengthening community supervision, particularly for felons, considerably increases public safety. Collin CSCD hired eight additional officers with the grant money, and placed all felony cases (they were previously mixed), under 10 POs. Collin POs previously averaged 130 probationers on their caseload, but under the new system the county now assigns a PO just 90-95 felony probationers.

In practice, that means POs are keeping a lot closer eye on felony probationers than previously, devoting around 44% more time each month to each clients' case than they'd otherwise be able to do. That means they can do home visits, check in at a probationers job, and in general provide more supervision to offenders who pose the greatest risk of committing serious offenses.

Who can argue that's not a serious improvement to public safety?

Collin County is also utilizing a progressive sanctions model, he said, with sanctions including evaluation, counseling, jail time, ed classes, and community service. He said they were lucky in Collin County to have quite a few counseling and other community based resources to which they could refer folks.

The county operates a DWI/Drug Court, he said, but only for misdemeanants. That's a bit odd, since all but marijuana charges (and perhaps some prescription drug violations) in Texas are felony raps. He said in practice 95% of the cases were DWIs.

The probation department's other important prison alternative program, Hughes told me, is its "Score Program," which houses 25-36 folks (including 5 beds that are part of a "restitution center") for 180 days in the county jail, sort of a county-run version of an intermediate sanctions facility. These are felony offenders, many of them drug offenders, who would otherwise have been revoked straight to prison.

In all, said Hughes, he does not expect similar results on revocations the next time such numbers are reported, and I was satisfied with his explanation of why the initially reported numbers looked so bad. Though I don't mind criticizing government actors when its warranted, I've no interest in portraying anyone in a falsely negative light, so I appreciate Mr. Hughes taking time to chat with me and clear up the misconceptions from that report.

Whitmire coauthors Washpost op ed on "Cutting the prison rate safely"

Senate Criminal Justice Committee Chair John Whitmire co-authored an op-ed piece in the Washington Post today along with another state senator from Kansas on the topic of "Cutting the Prison Rate Safely." While opining that mass incarceration "has undoubtedly helped reduce the nation's crime rate," they write that

high numbers of nonviolent, lower-risk criminals have been swept up in the prison boom. Getting tough on them has gotten tough on taxpayers, without an adequate public safety benefit. A prison cell costs about $65,000 to build and $24,000 a year to operate. States spend nearly $50 billion a year on corrections, more than four times the amount from 20 years ago, and they are projected to spend an additional $25 billion over the next five years to accommodate more inmates.

For this much money the public expects lower recidivism rates and safer communities. Yet crime rates are still too high. Recidivism rates are still too high. And corrections spending is crowding out dollars for other pressing priorities such as health care and education.

Like many of our performance-minded colleagues across the country, we have wondered whether we are getting our money's worth out of prisons. For violent offenders and sex offenders, the answer is yes. For many nonviolent offenders and probation violators, the answer is no. We've got to find a better way.

Many states are doing just that. In law-and-order Texas, we expanded a network of residential treatment centers for low-risk, substance-abusing offenders in prison and under community supervision, as well as intermediate-sanction facilities for probation and parole violators. Texas might avoid increased incarceration costs for the next five years, saving taxpayers millions of dollars, according to the latest projections.

After Kansas found that nearly two-thirds of its prison admissions were probation and parole violators, the legislature set up an incentive program for community corrections programs. Counties that cut their revocation rates by 20 percent will get a share of new state funding -- money made available because of averted prison construction -- to help them hold violators accountable without using up prison cells.

Other states are taking similar steps. We aren't going soft on crime; we're getting smart on crime.

Our country has a million more prison beds today than it did just 20 years ago, yet the average time served behind bars has increased by only six months, to about three years. Holding inmates an extra six months costs a bundle, but greater reductions in recidivism may be achieved by the alternative treatment and sanctioning programs that have begun to be funded.

For the same price, we can put four offenders through a drug court or reentry program and actually alter the course of their criminal careers. Research has shown that by using new technologies and treatment strategies, community corrections programs can cut rates of repeat offenses by 25 percent. Rather than claiming new victims, these offenders have a decent shot at rejoining society, paying taxes and supporting their children.

Public safety spending, like other areas of government responsibility, is not exempt from the test of cost-benefit analysis. Taxpayers want the job done as effectively as possible. It's up to us as policymakers to consider all of the options and create an array of punishments and programs that deliver the biggest public safety bang for the buck.

Of all the states proposing progressive alternatives to prisons, you wouldn't think it'd be Texas and Kansas leading the national push for less reliance on incarceration and stronger community supervision systems, but there they are.

Most new prison diversion programs at local probation departments demonstrate success

About half of new entrants to Texas prisons every year result from probation or parole revocations, so new programs aimed at reducing revocations have contributed greatly to resolving Texas' immediate prison overcrowding crisis.

With news of a new probation facility opening in Texarkana, I spent a little more time checking around the TDCJ website this morning for more information about new probation funding. I found this report from December (pdf) analyzing the use of new community supervision diversion funds aimed at reducing probation officer caseloads and minimizing revocations to prison for technical violations. The results so far seem really positive. Let's just walk through a few of the highlights.

For starters, the analysis divides Texas probation departments (CSCDs) into three categories, departments who:

• Received New Funding: (26) CSCDs with regular caseload sizes over 95 and accepted the additional funding.
• Did Not Receive New Funding: (73) CSCDs with regular caseload sizes under 95 that were ineligible for additional funding.
• Declined New Funding: (23) CSCDs eligible to receive diversion funding because regular caseload size was over 95 but declined the additional funding.

The results for felony probation revocations were striking. Departments receiving new funding saw a 7.3% decrease in felony revocations in the last year. Those that didn't receive new funding saw a slight rise in revocations (2.0%), while probation departments that declined new funding saw their number of felony revocations INCREASE by more than 10% (see charts pp. 8-9).

That said, there were wide variations in how effective new programs were by county. The percentages in this chart, e.g., compiled from Appendix A in the report, show several counties' change in revocation figures from one biennium to the next:

Changes in Revocation Rates by TX Probation Departments Receiving New Prison Diversion Funding over First 24 Months of Program

So while overall, new probation funds appear to have assisted counties in reducing probation revocations, some counties have achieved more success than others, and in some places, like Bexar and especially Collin County, new funds either created or did not deter a negative impact on probation revocations, for reasons I don't fully understand.

Even so, the big picture trends from this evaluation seems positive. Overall, departments that received new funding saw their overall caseloads decline by more than 17%, while those who rejected new funding saw their caseloads per officer decline by a measly 0.7%.

A key reform in a stronger probation regimen is to give offenders a chance to earn their way off probation through good behavior, particularly because most offenders who will recidivate do so in the first 2-3 years, but Texas felony probation terms are up to ten years long. All three categories of departments saw the number of early discharges from probation increase, but those who received funding increased the number of earned probation discharges bu 34.6%, compared to 25.6% for departments that declined funding and just 5.7% of those not eligible for new funding.

Also, CSCD's that did not receive new funding actually saw their number of probation officers decline slightly, despite higher caseloads, while agencies that accepted the funding increased their number of probation officers by 7.3%.

What to take from these data? That strengthened probation systems are empirically reducing both recidivism and the number of unnecessary technical revocations to prison in Texas. The report described recent trends, but also identified what additional funds that will be expended in this fiscal year:

A total of 42 CSCDs submitted 70 program proposals for the additional FY 2008-2009 diversion funding for outpatient substance abuse treatment and/or residential substance abuse treatment beds. Total requests for funding amounted to $24,743,530 for the $19,253,739 available in FY 2008. Specific funding appropriated included $5 million for Rider 84a (Outpatient Substance Abuse Treatment Counseling) funds and $14,253,739 for FY 2008 million for Rider 84c (Residential Substance Abuse Treatment) funds.

So about 80% of proposed probation department diversion programs should get funded this year, according to these figures. One hopes they're targeting departments that succeeded in using the last pot of money in ways that achieved the goals of the legislation instead of thwarted it.

The report doesn't give more detail, but I'd like to better understand the differences between what's happening in counties implementing these new programs that resulted in such widely disparate outcomes, on new revocations in particular. The overall trend seems encouraging, but looking county by county, the results seem a bit more mixed.

First Texans released thanks to retroactive reduction of federal crack cocaine penalites

Since the Rothgery case has me thinking about the federal courts this week - not my usual terrain, to be sure - I was pleased to notice an AP article localizing a federal story for Texas ("Inmates seeking shorter sentences on crack cocaine crime," March 16), via Crime and Consequences, detailing the results of retroactive changes in federal sentencing guidelines for crack cocaine:

Since last week, more than 250 inmates in the Dallas-Fort Worth area have filed requests for shorter sentences, according to federal probation officials.

The officials didn't know how many inmates have been released, but about 80 have been freed in the eastern district of Texas.

Around the country, about 800 inmates have been released out of the estimated 20,000 convicted of crack cocaine offenses and eligible for lighter prison terms under the new federal guidelines.

The change in guidelines stemmed from a December decision by the U.S. Sentencing Commission to reduce the disparity between those convicted of crack cocaine, mostly black men who got long sentences, and those convicted of crimes involving powdered cocaine, who are often white and more affluent and received shorter terms.

Gordon Okada, the chief probation officer for the northern district of Texas, told a newspaper that he expects more inmates to be released as the Bureau of Prisons processes a backlog of requests.

Richard Roper, the U.S. attorney for the northern district in Dallas, said he will try to block reduced sentences for inmates he believes are dangerous. He suggested that he won't oppose release for drug addicts but would for those convicted of being "substantial narcotics traffickers."

Roper said all the inmates getting out will be supervised and could be returned to prison if they violate the conditions of their release.

Officials in the eastern district of Texas, which stretches from Plano to the Louisiana line, have received 300 requests out of 500 inmates eligible for reduced sentences, said Arnold Spencer, an assistant U.S. attorney in Tyler.

Spencer said 80 have been released and another 80 are expected to be freed in the next week or two.

What's most striking to me about the story are the relatively small numbers of people involved. The vast majority of Texas' thousands of penny-ante drug charges every year were never going through the federal system in the first place, though the results are similarly racially skewed.

In Texas state courts, where there's no disparity for crack but incredibly long sentences for drug crimes generally, penalties may be longer on these types of charges, even, than under federal sentencing guidelines. Possession of two hundred grams or more of any controlled substance (except marijuana) can get you a first degree felony sentence up to 99 years or life. More commonly, though, prosecutors seek to "enhance" lower-level possession to the higher penalty range (e.g., under the "habitual offender" provision, Texas' version of a "3 strikes" law) for much smaller amounts of drugs.

Doc Berman over at Sentencing Law & Policy is the go-to source on this topic; his extensive recent coverage is linked at the end of this post.

New treatment facility for probationers opens in Texarkana

It looks like some of the new treatment options and incarceration alternatives funded by the Texas Legislature last year are starting to come online. A TV news station in Texarkana reports on a new women's facility:

The program is taking place at the Bowie Red River Recovery Center. This is a six to nine month program that offers an alternative to women who face incarceration over drug or mental health issues.

For the ladies, here this is their last chance to avoid jail and turn lives around. In some cases it may be saving lives.

The women who come here initially stay in a dorm type setting sharing a large room with as many as nine other women. Each step of the program completed means graduating toward a private room in the facility.

The Recovery Center is a joint project between judges, prosecutors and the probation department, but is funded by the state at a cost of $2.5 - $3 million dollars. Probation Officer Jack Pappas says its a good thing for the women and the state.

Right now there are only nine women in the facility but eventually it will house as many as 100 women.

Women from across the state of Texas will be referred to the Bowie County facility.

Glad to see that money is starting to get out into the field. I'll see if I can find out where else new treatment dollars approved last year are being spent and what the timeline is for them to open.

Dallas will inactivate some red light cameras that worked "too well"

One of the things that makes me skeptical about red light cameras are the dramatic success rates touted by vendors. Since the companies make their profits off of each ticket, if they really worked as well as proponents, say, they quickly would not be cost effective to operate.

That's supposedly what's happening in Dallas after they implemented red light cameras, much to my surprise (I'm not sure I've heard of cities having the "too much success" problem before). Cities installing red light cameras all inevitably say they're doing so for public safety, but now that they turn out not to be a revenue generator, the City of Dallas will scale back plans to expand the cameras further. As a result, reports the Dallas News ("Dallas red light cameras may face changes as revenue estimates drop," March 18):

one likely recommendation to the council is scaling back Dallas' plans to expand the red-light system to 100 cameras.

The council in September voted to expand its camera vendor contract with Dallas-based Affiliated Computer Services, from five years and $13.3 million to seven years and $29.1 million, in order to install the additional cameras.

Initial plans envisioned most of the additional cameras operating by spring. Ms. Basora said installing fewer cameras would probably be more cost-effective.

Another idea staff may recommend to council members is idling cameras on a rotating basis, which the city already has begun doing, or operating them at different intersections where red-light running is more habitual.

In the first case, cameras will remain perched above the intersections they monitor but won't snap pictures of red-light runners, and therefore, won't generate $75 civil citations, which the city mails to the offending vehicles' owners.

Ms. Basora noted, however, that most motorists won't realize this and behave as if the cameras are operational.

Dallas pays ACS a guaranteed $3,799 per month for each operational camera, and just a fraction of that to maintain inoperative cameras.

Safety vs. money

The results of Dallas' 2-year-old red-light camera system are mixed blessings for City Hall, Mayor Tom Leppert said.

"The good news is it's having the effect everyone in this community wants: fewer red lights being run. The goal was not to make money on this," Mr. Leppert said. "But these are numbers and realities we'll have to deal with."

The mayor added that under no circumstances does he expect a decrease in red-light camera revenue to affect the city's public safety budget, although the overall budget may not enjoy as much revenue, perhaps resulting in the city streamlining other items.

So the city not only implemented the program anticipating new revenue, they shortchanged taxation for basic services anticipating the difference would be made up with revenue from these cameras! As they say on South Park, "Officer Barbrady, I call 'shenanigans'!"

Doesn't it seem like, if red light running is as big a public safety concern as proponents said when the cameras were installed (when anyone who criticized them was said to oppose "saving lives") they should be worth the money to operate?

The only reason to inactivate cameras is if their real goal was to generate a revenue stream, and they've been installed in places where red light running isn't a big safety concern.

I don't know quite what to say about this news story. Part of me wanted to write a post that said, "Well, maybe they do work," though I'd like to see more detail about the revenue dropoff, payment rates, etc.. But the hypocrisy of Dallas now idling cameras because they don't generate revenue, especially after so much whining and dramatic rhetoric about safety and Bad Ol' Dangerous Red Light Runners, leaves a bad taste in my mouth, and makes me think the cameras really were just about revenue all along.

RELATED: Lubbock discontinues red light cameras after accidents increase 52%. See also coverage from MSNBC.

Message received: PR valued more than justice by Williamson DA

Good public policy is about outcomes. Bad public policy is frequently about grandstanding.

If you want to "send a message," rent a billboard. That's not the purpose of legislation, prosecution powers, parole decisions, or other functions of the justice system, which must be judged instead IMO by public safety outcomes.

In fact, whenever you hear a politician of any stripe calling for government to do something to "send a message," you can be pretty sure that whatever they're proposing will do more harm than good. That's true in nearly every instance, across the political spectrum. Such rhetoric shows the speaker has allowed their public relations goals to supersede their public policy goals. Reported Austin's KEYE-TV (3/18):

A judge has sentenced a woman described by Williamson County District Attorney John Bradley as a "serial drug dealer."

Regina Ann Burke, 44, of Manor pleaded guilty to two counts of delivery of a controlled substance.

The court gave Burke 35 years in jail for the crimes. She had previous drug and burglary convictions from other Texas counties as well.

In October and December of 2007, during an undercover narcotics investigation by the Williamson County Sheriff’s Office, Burke delivered methamphetamine to an undercover officer.

The transactions took place in the parking lot of the Round Rock Wal-Mart on I-35.

On a video released by the Williamson County DA, Burke can be heard complaining to a police interrogator that the DA's office was treating her like a major drug dealer.

Williamson County DA John Bradley responded in a written news release "[t]his case should make it obvious that the Parole Board’s policy of early release has given this drug dealer the wrong message.”

So according to John Bradley, the parole board sent the wrong message to Ms. Burke. Her recidivism sent a message about the parole board to him. So he pushed for a 35 year sentence for a pathetic, penny ante meth addict to send a message to the parole board about its "policy of early release," with KEYE as his eager accomplice.

That's a lot of message sending! But ignoring all the "messages" for a moment, what are the actual, real-world outcomes?

We already know why the parole board is releasing low-level offenders more frequently when they become eligible: The prisons are so overstuffed they don't have room for actually dangerous offenders, much less folks like Ms. Burke.

Texas prisons have 155,000 beds but release 70,000 per year, with a roughly equal number coming in. Our existing prisons are shortstaffed and there's little evidence TDCJ could find more guards at current pay rates, even if the state spent the billions necessary to construct new ones. As I've written previously, all this message sending by Mr. Bradley and his ilk has led to unsustainable prison growth rates:

from 1978 until 2004, the Texas prison population increased 573% (from 22,439 to 151,059), while the state's total population increased just 67% (from 13.5 million to 22.5 million).

That's right - a 573% increase in prisoners and a 67% increase in population over the same period.

But even that's not tough enough, so Bradley will send a message to build more prisons by pushing for ever-longer sentences for non-violent offenders. Where does it stop?

The TV news story gives no background, but I also wonder about how this woman got caught up in an undercover bust in the first place - was she targeted by the Williamson County Sheriff to "send a message," or did her activities come up as the result of routine investigation? I'd not be surprised a bit if it's the former. Was she selling drugs to others, or did the undercover officer befriend her and ask her to "score" as a favor? The latter method was a practice that allowed undercover cops in the Tulia-style drug task forces to rack up large numbers of low-level busts.

To me, this is the type of defendant who could do well under a stronger probation/community supervision regimen, like Judge Cynthia Kent's day reporting center in Tyler, which requires offenders to report daily, get a job, and comply with stricter controls than the monthly check-in typical of most probation supervision. For that matter, she's exactly the kind of person for whom drug courts were created.

But Mr. Bradley wants to "send a message" (and issue a press release, and get his name on TV), so instead of helping her turn her life around, get a job, pay taxes, and contribute to the community, taxpayers will just incarcerate her for the next 9-35 years, at a likely to rise cost of more than $16,000 (in 2007 dollars) annually.

Even worse, from a public policy perspective, they might have to release someone even more dangerous to make room for her, like happened with this guy.

All this message sending is getting expensive, and it's harming public safety. I think we can safely say at this point that "sending a message" is not the strong suit of the criminal justice system. Perhaps that's because its purpose is, you know, securing justice, not getting the DA's name on the local TV news.

RELATED: 60 year sentence in Williamson County for multiple DWIs.

Federal judge rejects TYC settlement on Evins unit in South Texas

The settlement agreement proposed between the Texas Youth Commission and the US Department of Justice didn't pass muster with the federal judge in charge of the case, reports the McAllen Monitor ("Judge refuses to accept settlement in Evins youth prison's civil rights case," March 18):

The state and federal governments are set to head back to the negotiating table, after a federal judge refused Monday to accept a settlement agreement over civil rights abuses at the Evins juvenile detention center.

U.S. District Judge Ricardo Hinojosa urged both parties to come up with a specific timeline for suggested reforms and criteria for evaluating the youth prison's progress.

"This is a discussion between the federal government and the state government with this court in the middle," Hinojosa said. And the court "is the lease equipped to manage a prison system."

The U.S. Department of Justice sued Evins and the state after an investigation revealed employees failed to protect inmates from staff abuse and youth-on-youth violence.

The Justice Department and the Texas Youth Commission - the state agency charged with overseeing Evins - reached a tentative agreement to the lawsuit in February.

In the proposed settlement, TYC officials agreed to provide youth inmates with safe living conditions and ensure they were protected from violence.

The commission also consented to other stipulations requiring that agency staff only use restraint to maintain security, provide adequate staffing levels and develop procedures to allow employees and inmates to report abuse without fear of retaliation.

But while the parties agreed to give a federal judge oversight of reform efforts for the next three years, on Monday Hinojosa said the proposed settlement did not adequately address what would happen should the Justice Department's demands go unmet.

He urged both parties to either settle their dispute outside of his purview or return to the court next month with a more detailed plan.

I'm sure administrators at TYC think this amounts to one more additional headache, but it sounds like the judge's main concern is putting extra teeth in the Agreed Order. That can only be a good thing as far as I'm concerned. See also coverage from AP.

Oral arguments at SCOTUS in Texas right to counsel case reveal new insights about murky systems

I earlier mentioned an important Texas case argued before the US Supreme Court yesterday, and have just finished reading the transcripts (pdf) from the oral arguments in Rothgery v. Gillespie County, Texas.

Mr. Rothgery who was arrested and refused an appointed attorney on what turned out to be wrongful gun charge, appears to me likely to prevail in the case, judging purely from Justices' comments. Justices Scalia, Ginsberg, Souter, Stevens, Kennedy and Breyer all seemed to be actively seeking ways to uphold the plaintiff's petition. Scalia outright said as much, as did Kennedy, who declared openly that what "we're looking for here, at least one of the things we might look for in this case, is a specific rule to give to the States so the State knows when counsel has to be appointed."

Chief Justice Roberts, by contrast, appeared intent on arguing Gillespie County's side more vehemently, while Alito's questions suggested that, at a minimum, he's thinking seriously about how Texas' system of appointing counsel should work compared to how it does. Clarence Thomas was his usual, silent self.

Having just read through the oral arguments transcript, I wanted to point out a few astonishing (to me, anyway) bits that emerged in the debate. First, this comment from the attorney for the state, Gregory Coleman, absolutely floored me:

some statistics that I have seen suggest that it may happen in half of the cases, where an individual is arrested, magistrated, released, and no official charges are ever brought

Can this possibly be true?!! Can it possibly be the case that in HALF of Texas' arrests, "no official charges are ever brought"? Why in the world are we arresting them, then? I'd like to know a lot more about that statistic and whether that's really the case. It seems improbable, but if that's really true, then our justice system is broken a lot worse than I've heretofore believed.

Justice Scalia picked up on this perhaps more strongly than any of the others when questioning Rothgery's attorney:

JUSTICE SCALIA: ... Texas made one of two possible constitutional violations. Either it was unconstitutional for Texas to require him to make bail, or it was unconstitutional for Texas not to provide him with an attorney. Why should -- why should we find that the latter was the problem rather than the former?

MS. SPINELLI: Well, there is certainly nothing unconstitutional about requiring bail, as we know.

JUSTICE SCALIA: Well, there certainly is if you're not charged. I think it's a very strong point in your favor that he was required to make bail, because I don't think you can hold somebody without charging him

Another astonishing exchange occurred on the same topic when the state's attorney essentially confirmed Scalia's interpretation under questioning from Justice Souter:

JUSTICE SOUTER: What you're saying, in answer to Justice Kennedy's question, that an individual can be brought into court, held in jail for three weeks without charge, and no right to counsel applies? I think that's your answer, but I want to make sure. I'll be candid to say I'm surprised. But if that's your position, I want to make sure I understand it.

MR. COLEMAN: Gerstein says that there must be --

JUSTICE SOUTER: I want to know what your answer is here. Get to authority later, but I want to know whether your position is that an individual may be brought by a police officer before a magistrate, charged with no crime, required to post bail, and if he doesn't post bail, be held for three weeks without charge.

MR. COLEMAN: That could not happen in Texas.

JUSTICE SOUTER: I'm not asking whether it could happen; I'm asking whether it would be constitutional without appointing counsel.

MR. COLEMAN: It would be -- not be a violation of the Sixth Amendment right to counsel.

What more can you add to that? Screw habeas corpus - they can arrest you, jail you, and not charge you for weeks without giving you a lawyer, according to this grotesque theory of justice. Justice Souter openly scoffed at Coleman's reasoning, declaring:

JUSTICE SOUTER ... In other words, if the lawyer comes in and says, you know, my client is sitting in jail, you've had him there for three days now, and no complaint has been filed against him, we don't know why he is being held -- your answer -- the -- it's a constitutional answer to say, well, you know, that's for us to know and you to find out? (Laughter.)

According to amici brief mentioned during the debate, 45 states provide defendants counsel upon their initial magistration, so Texas and a handful of other states (I don't know offhand which ones) are outliers nationally, and it wouldn't surprise me a bit if the high court takes this opportunity to create a national standard on the question, as Justice Kennedy overtly implied.

For more information, visit the website of the Texas Fair Defense Project, which brought the suit. Here are some initial reactions so far from the blogosphere (UPDATED):

• R. Enochs: When has adversarial proceeding commenced for Sixth Amendment purposes triggering a right to counsel?
  
• The Volokh Conspiracy: Thoughts on the oral argument in Rothgery v. Gillespie County, and Two thoughts on Rothgery
• Prawfsblawg: Message to Originalists and their Foes: Think 1868 not 1791
• Simple Justice: Rothgery Oral Argument: It's Easy to Be PC, and When does the right to counsel attach?
• Z the Legal Blog: Rothgery argued today in Supreme Court
• Stand Down: Another Rothgery Preview
• Cincinnati Law Library Blog: Right to counsel Supreme Court case
  
• South Texas Chisme: With Republicans, Americans can be arrested and held without a lawyer
• Grey at Law: Would you rather have a handgun or a lawyer?
  

Against Journalistic "Balance": Grits reaches one million visitor, 3,000 post milestones

I want to take a minute to thank everybody who reads this blog, which celebrates two landmarks with this post. Sometime today, barring an unforeseen traffic interruption, Grits for Breakfast will receive its one millionth visitor, according to SiteMeter. (Before you ask, I don't actually understand how their definition of "visitor" relates to the number of human beings reading the blog, but for those who care they explain it here.) Lately Grits has been receiving 50-60,000 visitors per month. Thanks, everyone, for coming!

Meanwhile, last week this item marked Grits' 3,000th post since I launched the blog in October 2004. That represents a lot of writing on my part, and a lot of reading on yours, not to mention many thousands of contributions by and conversations with readers in the comments section. I've gotten a lot of important tips from you, learned much from our conversations, and in many cases changed my own views or identified significant caveats or alternative explanations because of reader responses. In short, I'm certain I learn more from writing on Grits and debating these topics with commenters (and other bloggers) than my readers are ever likely to learn from me.

So in honor of these two bloggerly milestones, I hope readers will indulge some perhaps too-lengthy ruminations about what I'm hoping to accomplish on Grits as a writer (as opposed to a public policy advocate, where my goals are pretty plain).

I view Grits as a writer's experiment on several levels. When I launched the blog, I hoped to test the medium's effectiveness as a way to engage a state-level political issue at a time when (as is still the case) greater attention in the blogosphere was paid to elections than to what pols do once they're in office. Not only were blogs a new medium (though it dates myself to say so, when I began in print journalism we still sliced up columns of text with exacto knives and placed them by hand along with images on gridded paper using hot wax), for me, anyway Grits has been a chance to practice an alternative brand of public journalism, one that embraces rather than disdains authorial perspective.

There have always been editorial writers in journalism, but in the last century a conscious effort was made to divorce "opinion" from "fact." Most MSM journalism is still based on a value set created around the turn of the 20th Century that I believe has led the profession far off course. With the exception of occasional investigative articles or self-styled "analyses," modern journalism too often reverts to a formula where "fairness" and "balance" - to use the famous buzz words - prevail over "honesty" or "truth."

The idea of journalistic "balance" deserves particular scorn, since it inculcates several flawed assumptions that harm public debate and diminish the usefulness of its practitioners' product. The idea assumes there are two sides to be balanced in the first place. Or three. Or however many the reporter and the editor decide to include in the story. However, seldom do we hear acknowledgment that those represent CHOICES by journalists about whose opinions to include, even when they're portrayed by the author as "just the facts."

Indeed, any honest writer will admit they make so many choices in a given piece of prose, right down to quote placement, word and punctuation choice, rhythmic emphasis, and dozens of other things, that some sort of "bias" creeps in to every article, resulting in a situation where "all criticism is autobiographical," at least to some degree. Every writer's arguments have both strong suits and blind spots based on their personal knowledge, experience, values, sources, etc.. I believe readers are better served when writers acknowledge those biases up front and present them as part of the package, rather than conceal them behind false objectivity and feigned even-handedness.

An even bigger problem arises because the formula of journalistic "balance" inherently biases journalism toward institutional players, from whom the reporters inevitably feel obligated to "get a quote" and print it whether or not they believe it's true. In the criminal justice arena, in particular, this phenomenon contributes significantly to slanted coverage. But the same thing happens in everything the MSM covers.

I'm NOT saying that reporters who practice that style of journalism are personally unethical. If that's what you're taught and you're practicing the craft in good faith, that doesn't make you a bad person. At its best moments, some fine journalism has been performed under the "fair and balanced" formula. But as an everyday matter, the format forces upon reporters near-constant choices about whether their responsibility lies with their sources or their readers, and nearly guarantees that much of the time, they'll choose their sources' over their readers' interests.

My favorite TV show of all time is The Wire, which just concluded its final show a couple of weeks ago. Every week began with a quote from someone in that episode's storyline, highlighted in white print on a black screen as the brilliant theme song behind the opening credits drew to its conclusion. In the next to last episode, which focused on the news media, the pre-show epigraph IMO summed up the biggest failure regarding how reporters operate today: "A lie ain't a 'side of the story,' it's just a lie."

Public relations professionals (and today, every good politician is a public relations professional) know that to respond to media criticisms, you create a message and stick to it, repeating the element you want to appear in the story and refusing to answer more probative questions. Why? Reporters inevitably feel obligated to print "the other side," even when they know they're being misled. (A New York Times reporter famously said he was glad to quit covering Congress because he was tired of sitting around all day on marble slabs waiting for politicians to lie to him.)

That's what passes for journalistic ethics, sadly, in the 21st Century. Reporters justify this systematic promotion of spun or false information by telling themselves that, at least if someone lies, they got them "on the record" - sort of a journalistic version of a legal perjury trap. But for the most part, nobody goes back to hold sources accountable for past misleading statements. Lying to reporters is not illegal, after all, plus reporters avoid criticizing regular sources, particularly official ones, in order to curry favor - otherwise you can't get the next quote. To its credit, Comedy Central's "The Daily Show" has captured a huge audience with "news" stories that basically place today's quote side be side with last year's quote and expose the hypocrisy that runs through much of what the media reports.

To me, it's unethical for a reporter to promote arguments or fact propositions to their readers if they don't personally believe they're true, even if they quote "the other side," for "balance." A lie ain't a side of the story, it's just a lie.

When reporters print a quote and don't tell readers they think it's misleading or obfuscatory, which happens ALL the time, IMO they do their readers a serious disservice. And journalists, don't tell me you "let the facts speak for themselves" - you're the writer, so you're speaking. Period. It's not just "the facts" but the facts you choose to present. Plus you're the one who researched the story - your readers presumably don't know as much as you do.

All that to say, in Grits' first 3,000 posts, I've attempted to chart a different course, to provide a brand of reportage that helps fill in the meaning gaps in MSM coverage on Texas criminal justice issues.

Newspapers frequently attribute their circulation decline to the rise of new technology, but IMO their greatest failing hasn't been a reliance on dead trees, but their insistence on clinging to an outdated and counterproductive approach to newsgathering and storytelling. People read blogs not to get information, for the most part, but to help decipher what news stories mean, a niche that's only available because of the shortcomings of hundred-year old journalistic canons and customs.

So do not expect what you read here to be "fair" or "balanced" (though I try to be "honest" and "truthful," and admit mistakes when I make them). A primary goal of this blog is to rethink approaches to journalism and nonfiction writing, charting a path, I hope, that fits better both with modern technologies and sensibilities.

Thanks for coming by, everybody. This blog definitely wouldn't be what it is without every one of you reading and participating.

RateMyCop.com shut down, but this good idea should really be a government function

Via Stephen Gustitis I learn about "a new website called RateMyCop.com, that apparently was shut down last week after a flurry of controversy. Gustitis refers us to "Robert Guest at the new Dallas Criminal Defense Lawyer Blog [who] started the hoopla here. Gideon jumped in here. And Greenfield here.

"Guest observed the website owners were sending out open record requests to Texas law enforcement agencies to fill-out their database on Texas cops. Interestingly, the TDCAA message board was abuzz with discussions about the website and the requests."

The site was taken down very recently (see a March 12 screen shot) after its ISP pull the plug on its service without warning because of vigorous complaints from law enforcement. Scott Greenfield astutely pointed out that no one's similarly trying to shut down a site that lets cops gripe about other cops who write them tickets.

Personally I don't see why it takes a private group filing open records request to do this. Clearly from the positive public reaction to the site (outside of law enforcement), there's a hunger for information about police at this level of detail, and I see no reason to shut down a public venue discussing the subject. It sounds to me like RateMyCop was taking a responsible approach - relying on open records to document claims instead of only publishing anecdotal accounts. Ironically, though, it was the open records requests that made the police mad.

As far as I'm concerned, I'd like to see departments themselves publish every commendation and sustained disciplinary action online for every cop in their department, and provide the public an opportunity for direct, online feedback about individual officers, just like RateMyCop wants to do. I don't think it would harm a thing, and it might even give police supervisors information about their officers' performance they otherwise could never know, good and bad. The disciplinary actions and commendations are public records, anyway, and such a gesture would probably improve public trust of police thanks to the greater transparency.

Do they really have to appoint you a lawyer when you ask for one? SCOTUS to decide today in Texas case

For years, Texas counties have struggled to adequately meet the constitutional mandate that accused, indigent defendants have a right to legal counsel. Things improved, at significant additional expense, with the passage of the Fair Defense Act in 2001, which resulted in more frequent access to attorneys for many defendants but also much higher costs for counties, who'd been operating on the cheap for years.

Plenty of counties complain about the Fair Defense Act, but the US Supreme Court will soon decide in a Texas case whether even its requirements don't go far enough. SCOTUS will hear oral arguments at 11 a.m. (EST) in a suit brought by the Texas Fair Defense Project clarifying when in the arrest process the right to counsel kicks in. (See earlier Grits coverage, and the SCOTUS Wiki page on the case.)

The case arises from an incident in Fredericksburg, described in more detail in this Houston Chronicle article, where a man (it turned out wrongly) accused on a gun charge spent extra time in jail because he wasn't appointed attorney when he first went before a judge. Mr. Walter Rothgery was accused of being a felon in possession of a firearm, but it turned out the database accusing him of having a felony conviction was wrong. As a result, reported the Chronicle:

Rothgery spent the next six months in legal limbo: unable to get a full-time job because of the report of a conviction hanging over him and unable to afford a lawyer. He was indicted, re-arrested, had his bail tripled and moved to a county jail more than 100 miles from his home.

A sympathetic warden there helped him find a lawyer, who obtained documentation proving he had no felony record.

Three weeks later, Rothgery was released again on bail, and Gillespie County prosecutors ultimately dropped the charge. He was a free man.

"I guess everybody who gets arrested says they're innocent," Rothgery said. "Sometimes they are."

Rothgery's case caught the attention of Andrea Marsh, a rookie civil liberties lawyer who filed the first lawsuit of her career on his behalf against the county in 2004 alleging his Sixth Amendment right to an attorney was violated.

If a lawyer had been appointed, the mistake underlying his arrest would have been discovered and he wouldn't have been subjected to bond for a lengthy period and wrongfully jailed, she argued.

"I always thought once you ask for a lawyer you get a lawyer," Rothgery said.

Good luck today to Rothgery, Andrea Marsh, and the Texas Fair Defense Project. (As an aside, how cool is it for an attorney to have the first lawsuit you ever file go all the way to oral arguments at the US Supreme Court?! Congrats and good luck to Andrea, Harry, and everybody else in their shop.)

On the prosecutors' association user forum in December, one of their lobbyists, Shannon Edmonds, lamented that if SCOTUS restricts the ability to hold defendants in jail without appointing a lawyer, it may result in "fewer valid confessions." Moreover, he said, if SCOTUS requires appointment of counsel earlier in the process, "counties will squeal about the costs, leading to a statewide push for the creation of more local public defender offices."

More public defender offices, if you ask me, would be a good outcome from this case, if Edmonds' prediction holds true. If Rothgery wins, depending on the contents of the opinion, counties can "squeal" all they want but they still have to pay.

As for fewer confessions, though, let's interrogate this assertion for a second. Why would more people confess under the current system? Because they don't have a lawyer's advice! That certainly won't be an argument SCOTUS accepts (I would hope) for delaying appointment of an attorney. The other reason failing to appoint a lawyer would boost confessions is when the defendant sitting in jail and that's the quickest option to get out - particularly on lower level charges where probation or a short jail sentence is the most likely outcome. But "lock 'em up without a lawyer till they confess" isn't what the American justice system should be about, is it?

Edmonds further suggested that "more prosecutors might go to direct file systems with 24/7 review to weed out bad cases up front in an attempt to save the county some money (but only if they can convince their commissioners to fund it!)." Such a direct file system, incidentally, is part of the campaign platform of Mindy Montford, a candidate in the runoff for Travis County DA.

Stay tuned: As the originating state for the suit, depending on the outcome, the Rothgery case could have a big impact sooner than later in Texas on both defendants' rights to counsel and already-strained county budgets.

MORE: See two posts about Rothgery from Orin Kerr at the Volokh Conspiracy.

Who says you can never go home again? Tijuana cartel leader returns to Mexico after surprisingly short US prison stint

After a guilty plea earned him a 6-year federal sentence just last October, a top leader from the notorious "Tijuana Cartel" was cut loose last week, crossing back into Mexico from El Paso after spending less than six months in a federal prison in Texas. (Don't worry, though, we've replaced him with this guy, a lower-level lieutenant working for one of his brothers - you wouldn't want an empty prison bed!)

Maybe somebody with a PACER account and knowledge of federal sentencing guidelines can take a look at this case and tell me how this guy got out so soon. I really don't understand it, since there's no parole in the federal system.

The Tijuana Cartel for years dominated drug trafficking into Southern California, but decades-long focus from law enforcement combined with new, powerful and bloodthirsty competitors have weakened the family-run enterprise.

Law enforcement victories against the Tijuana Cartel have been much ballyhooed in the press. This was the fellow who's brother's sentence Doc Berman said demonstrated the death penalty is an "effective plea bargaining tool." But neither the death penalty nor anything else appears to effectively decapitate this hydra-headed monster, which just saw another head grow back with the release of Francisco Rafael Arellano Felix. His release occasioned this Reuters analysis by Lizbeth Diaz shedding more light on the current status of the cartels' war over market share ("Mexico's Tijuana cartel weaker as ex-boss comes home," March 14). Diaz writes that Felix:

is coming home to a gang badly weakened by army raids and territorial gains by rivals.

The family-run Arellano Felix cartel has controlled smuggling routes around the border city of Tijuana for years, using gruesome torture and executions to hold onto its turf.

But as the clan's eldest brother Francisco Rafael Arellano Felix returns to Mexico from a U.S. prison, the cartel, now run by one of his sisters, has lost ground to its enemies.

"They've been cut down to size in many ways. They don't have the penetration they did," said Bruce Bagley, a University of Miami professor who studies Mexico's drug cartels.

President Felipe Calderon's army-led crackdown has rounded up traffickers and busted police protection rings, and the powerful Sinaloa cartel from western Mexico has muscled its way into the Arellano Felix gang's home turf.

Experts say some Tijuana smugglers are breaking away and teaming up with the Sinaloa cartel on some drug deals.

"We're seeing the emergence of a post-Tijuana cartel structure in which you have smaller organizations, splinter groups, some of whom have now allied themselves with the Sinaloa cartel in a kind of confederation-like arrangement because they need protection," said Bagley.

In another blow to the Arellano Felix cartel, one of its high-level operatives, Gustavo Rivera Martinez, was arrested this week and is being extradited to face drug charges in the United States.

Francisco Rafael Arellano Felix, released from a Texas prison last week, ran the Tijuana cartel at the peak of its power and opulence and was a fixture at flashy discos and restaurants in the seedy border city until his arrest in 1993.

Although sources say he is already back in his old stomping ground in the northwestern state of Baja California, analysts expect him to play a hands-off "godfather" role rather than take over the cartel's operations.

They say Enedina Arellano Felix, one of four sisters, is now managing the family business after other brothers were arrested or shot dead in a shootout with police.

Police say she handles its many organized crime and money laundering arms, but her grip on the cartel's prized smuggling routes has been shaken.

Last year, the Sinaloa cartel took control of Mexicali, a key smuggling city on the U.S. border that was formerly Tijuana cartel turf.

The Tijuana Cartel has been one of the big losers in the Mexican cartel wars. By contrast, the Juarez Cartel, whose bloody rampages continue to shock the conscience and imagination, appears to have been more successful resisting the Sinaloa group's money and muscle. Authorities found a mass grave with 33 bodies attributed to the gang in El Paso's sister city just last week.

The other major drug ring in Mexico (though all these operate with relatively decentralized "cell" structures not entirely under any one person's control) is the "Gulf Cartel," which has been the main target of military actions in Mexico, particularly in the states along Texas' southern border. The Gulf Cartel's main enforcement arm are "Los Zetas," whose leaders are turncoat Mexican military commandos trained at Fort Benning, Georgia by US Special Forces. Recent unconfirmed reports indicate the Juarez Cartel leader spent millions to bribe away Los Zetas from the Gulf Cartel, but at the moment I'd place that assertion in the "rumor" category.

I've discussed before how I think the Sinaloa cartel's deep pockets and more vertically integrated distribution structure make it the likely, ultimate victor in the cartel wars, based purely on an economic analysis. But when simply murdering your competitors is an option, it changes the market dynamics considerably!

RELATED:

• As Mexico fights a 'hot' war, US not holding up its end against multinational drug cartels
• Mexican Army launches Gulf Cartel crackdown
• Mexican cartels continues supplying illegal drugs despite massive numbers of deaths and arrests
• Calderon and the drug cartels: Who's intimidating who?
• Bush and Calderon on outs: 'Merida plan' may not pass Congressional muster
• Briefing on Bush's drug plan raise more questions than answers
• Mexican drug gangs hiring teenage assassins in Texas
• Teen hitmen do Gulf Cartel dirty work on US side of the border
• "Queen of the Pacific": Mexican cartel bigshot has popular following
• Bazookas, grenades, corrupt police and the worsening border crisis
• Mexican Border Wars: 'The only leaders who can contain the violence are the ones who are in jail'
• What do we know about US-side cartel infrastructure?

Paroling murderers to make room for druggies?

Here's an excellent, real-world example of how expending scarce incarceration resources on low-level, nonviolent offenders takes up prison space that should be housing more dangerous people - a Texan paroled in 2006 after receiving a life sentence for murder in 1987 robbed two elderly men in Florida on Friday and is now back in custody. Reported the Orlando Sentinel ("Texas parolee charged with robbing two elderly men," March 15):

A Eustis man on parole for a murder he committed in Texas attacked and robbed two elderly men Thursday and Friday before deputies caught him using one of his victim's credit cards at a Wal-Mart, authorities said.

Glen Semento, 47, was charged with aggravated battery, robbery and fraudulent use of a credit card. He was being held without bond in the Lake County Jail. Sheriff's Capt. Todd Luce said it will be up to Texas to determine how to punish Semento for violating the conditions of his parole. ...

Jason Clark, a spokesman for the Texas Department of Criminal Justice, said Semento was convicted of first-degree murder in 1987 and was sentenced to life in prison. He was paroled in August 2006 and moved to Lake County. The Florida Department of Corrections agreed to supervise Semento's parole because he said he wanted to live with his parents and he had a job lined up, department spokeswoman Jo Ellyn Rackleff said.

According to the Texas appellate court opinion that upheld his conviction, Semento was convicted of murdering William Lappine in March 1986. Lappine died of strangulation, but he was also bludgeoned on the head and had defensive wounds on his hands and arms.

Investigators found that Semento had pawned Lappine's television and stereo. They also found a fingerprint and partial palm print that matched Semento's in Lappine's apartment. There was no evidence that Lappine and Semento knew each other.

To understand why such a person gets paroled requires a little background. After all, Texas' Board of Pardons and Parole is notoriously "tough." They established a set of guidelines for how many inmates should be receiving parole each year then for the most part have refused to follow them, denying parole every year to thousands of eligible inmates.

But ironically, for reasons I've never understood, Texas' parole board is MORE likely to follow its guidelines for the most violent offenders - like this guy - than for the lowest risk inmates. The Sunset Commission staff report evaluating them in 2006 found that (see here, page 29-30), "By not reflecting the guidelines, parole panel decisions may actually be skewed in favor of higher offense severity and higher-risk offenders." By contrast, for the lowest risk offenders, parole rates "have consistently fallen well below even the minimum rates that the guidelines would provide"

Translated from bureaucratese, that means the most dangerous offenders are more likely to be paroled when they're eligible than those who pose less risk.

There's only one reason that's happening: The prison system needs the space to house addicts, drunks, and non-violent offenders like this guy, and this one, and this schoolteacher, and homeless people who steal copper wire, and a host of others who didn't commit nearly as serious an offense as this fellow. They're locked up and he's out carjacking people. What's wrong with this picture?

A past campaign client of mine, former state Rep. Ray Allen, likes to say that Texas should only lock up people we're "afraid of," not those whom we're only "mad at." This case shows that's not just a catchy slogan, it's damn good public safety advice.

What if they held a prostitution sting and nobody in the media reported it?

In the process of tracking Travis County's new immigration detainer policy, Jamie Spencer happened to notice at the Travis County jail the results from a recent Austin prostitution sting that received no local publicity. He makes a good point and asks a legitimate question:

It used to be that I’d see these things publicized in the local paper – not the names of the arrestees, but the fact that the police department had run a sting, and how proud they were that they had arrested so many people, etc. But I’ve searched Google News and the Austin American Statesman, and I can’t find a press release or anything.

Hey, if you guys aren’t going to brag about this, is that some sort of indication that you think public support for these stings is waning? And if so, any chance you could use our money on something more useful?

Doc Berman is a fan of "shaming" penalties (to some extent), though he's also recognized in the past that prostitutes may also be "victims" as well as offenders. I'm curious whether he or others think that prosecution of men for soliciting prostitutes is a less effective tactic when it's not publicized?

See also from ACDL:

• Are Prostitution Stings Entrapment?
• Definition of Prostitution

And from Grits:

• Study: 3% of tricks by sex workers without pimps are 'freebies' given to police
• Cop: Snitches keep escort services in business
• Dallas' Letot Center combats prostitution among runaway girls

The View from Prosecutorlandia

The last post about prosecutor attitudes inevitably led me to visit the Texas District and County Attorney Association's user forums, where I've unintentionally neglected to check in for a while. Here are several recent, noteworthy items:

Parolees = Murderers?
Though 70,000 people leave Texas' prisons each year, most of them on parole, to read this discussion string you'd think they were every one murderers, particularly in the comments responding to the initial "horror story." BTW, here's the "horror story" posted by a prosecutor from Waxahachie: A guy who stole a car in 1991 and was a professional burglar by 1993 spent time in prison, got paroled, then committed a new offense in 2005 - an "accident causing injury or death" (I'm guessing it was "injury" since he was paroled so soon). On his most recent charge:

Now I've got him in his 6th county, for evading with a vehicle. Routine traffic stop that he turned into Death Race 2000, running stop signs and cutting across highway medians. Why? Because he had a parole violation warrant, of course.

But he's not a threat to the community, right?

What do readers think? He was on parole for an "accident," albeit a serious one, and fled because he didn't want to go back to prison. There's no evidence he'd gone back to burglarizing homes or stealing cars, and he's likely nearing the age when statistically antisocial behavior declines. Does this criminal record - most of it at least 15 years old - make him a "threat to the community" that justifies paying his room, board and health care for the next however many decades, or might other correctional approaches benefit society more? Clearly this ADA thinks prison didn't reform the fellow the last time. Let me know in the comments whether you agree this qualifies as a "horror story."

The rest of the string so far nearly immediately devolved into silliness and hyperbole, with two different prosecutors equating the above defendant with intentional murderers and copkillers. (I think that's one of the reasons I haven't visited the DA's user forums for a while. I don't watch Nancy Grace, either.)

Juking the Stats
Another telling string finds our prosecutor friends fawning over a column by Thomas Sowell arguing that incarcerating one in 100 US adults is a good thing. We find the usual pedantic complaints by Williamson DA John Bradley who decries "pretend conservative[s]" who oppose mass incarceration (Psssst ... note to Marc Levin - I think he's talking about you!). But we also discover a more thoughtful, first-order question about whether anyone, pro or con, can trust existing criminal justice statistics:

Unfortunately, the "playing with statistics" Sowell mentions is not limited to those who oppose incarceration, but is also actively done by those who favor it. In my government experience, 'juking' stats was like steroids in baseball -- it seemed like everyone did it and everyone justified it by pointing out that everyone did it, even while denying that they themselves did it. To paraphrase, "There are lies, there are damn lies, and there are the other guys statistics."

Part of the problem is that if you can't trust the statistics, then how can you base rational policy decisions on them (one way or the other)?

Damn good point. If you happened to watch the TV show, "The Wire," that was a central theme. In that show, it was also the kind of opinion, when uttered too loudly in law enforcement, that earned you an early retirement party.

A Simple Equation?
In the same string about Sowell's column, prosecutor Bob Cole, who elsewhere says "I have been accused by some of thinking that Joseph McCarthy was a liberal," declares forthrightly:

Why is this simple equation so difficult for some outside of our profession to understand?

Bad guys in jail + strong sentences = lower crime rate

Nothing too complicated about that. What did I miss?

Hmmmm, well Mr. Cole, perhaps it's because everyone else sees lots of real-world situations where that equation doesn't describe what's actually happening around them. Mostly, Cole's equation gives too much credit to the actions of law enforcers for the reduction in crime rate over the last 15 years, which has more to do with a cyclical decline in the number of young people, IMO, than recent trends toward mass incarceration.

Though we're incarcerating more people, a majority in prison committed nonviolent offenses, and a smaller percentage of serious crimes than ever these days are actually solved. Some criminal activity is basically tolerated. Drunks and addicts who enter prison but receive no treatment leave - whether two years down the line or 20 - with the same addiction problem that caused their original offense. He's also missing that 70,000 inmates leave Texas' prisons every year, out of 155,000 total beds, and that even if we built more prisons, the state can't find enough guards to staff the ones we've got. So how would it be physically possible to keep them in prison longer?

Finally, he's missing that every US state experienced crime reductions over the last 15 years, largely because of demographic trends (fewer young people combined with more immigrants led to a reduction in the demographic subset most responsible for crime) but Texas, which incarcerates the largest percentage of its residents in the nation, saw a SMALLER decline in crime than other states. That result just doesn't match his formula.

What other variables are Mr. Cole's "simple equation" missing?

Prosecutors as cultural critics
Finally, I was interested to see this string where prosecutors discuss the TV series "Dexter," about a serial killer working in a criminal forensic lab who only murders bad people who get away with their crimes. Naturally, some thought the show's popularity represented affirmation by the public for their own pro-death penalty, anti-appeal predilections:

his show reiterates the fact that a lot of people feel justice when the most heinous criminals receive the death penalty. And on the show, there are no trials, no 15 years of appeals, and no last minute "come to Jesus."

Another suggested that the show might undermine the credibility of law enforcers and the law generally with the public:

I find it somewhat amusing that Dexter is being run by CBS, home of CSI Miami. The premise of CSI Miamiseems to be that the bad guy can't hide from the lab's crack forensic scientists while Dexter, a forensic scientist for the Miami Crime Lab, seems to be untouchable.

I know the show is just entertainment, but it bothers me to make type of hero from a man who kills other, no matter how deserving the decedents.

But a more astute cultural critic recognized that the aforementioned discomfort was actually the point of the show's perverted premise:

I think the show does a good job exploring (in an entertaining way) our society's curious mix of love for, and revulsion against, violence. On one hand Dexter is is carrying out a rather crude form of "justice" by killing people who "deserve it." On the other hand, he enjoys his task all too much (in his odd emotion starved way) and does things like mutilate bodies and keep "trophies" of his kills.

If we are going to have a death penalty, why not have someone who *enjoys* killing do the job? Imagine hearing the following testimony: "I was happy when the perp went for his gun, because it gave me legal justification to blast his brains out. What a rush!" No crime, perhaps, but that just makes it even more troubling....

If thinking about such things bothers you, I'd suggest skipping the show.

That's certainly what I did, even though I don't mind thinking about such issues. I watched the first 20 minutes or so of the pilot, then quickly decided there were better ways to spend my time.

UPDATE: Reacting to the first item in this post, another prosecutor on that string poses the question:

I wonder if Grits has ever had to respond to a group of voters about why he thinks guys like that should be let out on parole. The fact that a guy that got 155 years in prison in 1993 was paroled before 2005 doesn't seem to have registered.

Answer: Of course I've explained my position on this to voters, many times. The answer is simple, if you're honest about it. We've filled the prisons up with nonviolent offenders to the point that we don't have room to house dangerous ones. This guy got 155 years for nonviolent offenses. (The fellow tries to say I downplayed the criminal history, but I linked to the full description on their site.) I recently wrote about a fellow who got 60 years for meth possession. But the length of sentences for nonviolent offenders has little to do with future dangerousness. So the parole board is making the utterly rational decision to release such folks so there will be room to house people who are actually predatory.

Since, as a practical matter, the state can't staff the prisons we've got, pushing for super-long sentences or calling for INCREASED incarceration of nonviolent offenders - these prosecutors' mantra - in practice amounts to a call to let more violent offenders back onto the street. I think that stance harms public safety more than it helps it.

Harris DA's Office Seeks Justice For Some

Mark Bennett shares a recent email exchange with an ADA from the Harris County District Attorney's Office (now under new management), where Bennett opined:

Our next DA needs to know that he or she is not part of a dynasty, is only temporary, is human and fallible, and answers ultimately to the families of the accused, who greatly outnumber the families of the victims.

The reply was particularly telling - one of those moments where first order assumptions spring forth that the (anonymous) correspondent has probably never seriously considered or even spoken out loud:

I’ve felt compassion for defendants from DWI offenders to murderers. But their families? . . . . I don’t think I owe anything to a defendant’s family.

Amazing. And we wonder why locking folks up doesn't reduce crime. Children of incarcerated parents are 6-8 times more likely than their peers to wind up in prison themselves. That's not all because of bad parenting - particularly when the "bad parent" is locked up. It's much more about depression, anger, resentment, confusion, despair, loneliness and an array of other emotional dynamics that face youth with incarcerated fathers and/or mothers.

But who cares? That's not a prosecutor's problem, right? He'll lock them up later, I guess. Do you think this ADA feels the same indifference toward victims' families? If so, it would at least be intellectually honest and consistent, perhaps even justified. If not, though, the view is hypocritical.

The state's biggest victims' rights group is called "Justice for All," not "Justice for Some," and prosecutors are charged to "seek justice," not convictions. I'm sure Mark's correspondent believes he is living up to that code, but to judge by the attitudes emerging from his emails, I don't.

Does rise in TDCJ discipline for absences and poor job performance stem from chronic understaffing?

Research about disciplinary actions against Texas correctional officers, generated by The Back Gate, a prison guards' blog, made its way into the Huntsville Item recently. TBG republished the piece, and since they have no permalinks on their otherwise excellent site, I'll just reproduce it here:

Statistics from the Texas Department of Criminal Justice reported nearly 8,000 disciplinary actions against employees of the system over a 12-month period, mostly for failing to perform their duties and unexcused absences.

Of the 7,786 recorded disciplinary actions taken by the agency, at least 1,574 of those were for substandard performance. The agency also reprimanded 1,719 employees for unexcused absence of an hour or more.

Michelle Lyons, a spokesperson for TDCJ, said the most common infractions included "unexcused absenteeism, substandard duty performance and failure to obey a proper order from an authority."

The statistics, obtained by The Back Gate, a TDCJ watchdog group, claims the numbers are on the rise.

"The fact is this, for this fiscal year within TDCJ, there was a sharp increase in these types of numbers," said Marcus Williams, a writer for the group. "Whatever the reason, it's alarming."

Lyons confirmed the numbers as accurate.

Of the infractions recorded against staff, 729 were dismissed and 221 infractations were overturned or modified.

But 538 staff members were fired over their disciplinary actions, while 51 were demoted, 7 received a reduction in pay and 911 were suspended for an indefinite amount of time without pay.

Most employees who were disciplined — 4,902 of them — were placed on probation.

As part of the dismissal process, employees are allowed to participate in their dismissal through a mediation process, according to Williams.

Of the 368 mediation sessions, 103 resigned during the process.

Another 221 of those were overturned or modified and two resigned before their official dismissal. Just over 200 were approved for dismissal and fired.

Other cited infractions included 780 violations of statutory authority, 494 for failure to obey a proper order from authority, 249 for tardiness, 240 for leaving their post, 228 for sleeping on duty, 227 for conviction of misdemeanor charges, 205 for falsification of state documents, and 181 for having verbal/physical confrontations with other staff members.

TDCJ employs a lot of folks, so these data represent a small percentage of total employees. But I take the fact that most infractions were for failure to perform duties and unexcused absences as evidence that TDCJ's chronic prison guard shortage has begun to more seriously effect on the job performance. It was already affecting employee safety. The number of assaults on guards and staff has doubled in the last five years, even though total prison populations have leveled off.

These data, incidentally, are for actual disciplinary actions by the agency, not the total number of complaints investigated which would have been much higher. TDCJ's institutional division, the part of the agency which runs Texas' prisons, has somewhere in the ballpark of 30,000 employees - more by a longshot than any other state agency.

Immigration enforcement interfering with other US Marshals' duties

Stricter enforcement of immigration laws is harming the effectiveness of federal fugitive apprehension and other critical public safety initiatives, a US Marshal's supervisor declared, particularly where the feds have implemented a pilot 'zero-tolerance' policy along the stretch of border near Del Rio. Reports the Dallas News ("Illegal immigrant program stretches marshals to the limit," March 13):

A program along the border in parts of Texas and Arizona to haul illegal immigrants off to jail instead of shipping them home has overwhelmed the U.S. Marshals Service.

The 600 marshals stationed on the border with Mexico are dealing with as many as 6,000 new defendants a month. That's taking them away from other tasks such as capturing escaped prisoners and rounding up sex offenders, according to Justice Department documents.

David Gonzales, the head marshal in Arizona, said "Operation Streamline" shows how a well-intentioned program to crack down on illegal immigrants can be undermined by inadequate funding and the strain it places on all layers of the criminal justice system.

"You can only stretch people so far," he said.

A Border Patrol chief says it would be impossible to scale up the program to cover the entire border. "We would probably freeze the entire court system in one day" if every illegal immigrant was prosecuted, he told the News. "It's selective prosecution."

Texas Congressman John Culberson is perhaps the most prominent politician pushing to expand the program, according to the paper. If he "and his allies have their way, the border court and detention system, already overburdened by drug, sex and violent crime cases, will buckle without more resources, defense attorneys say."

When you hear folks advocating mass expulsions or "securing the border," whatever that means, what you rarely hear along with it is a discussion of opportunity costs. Personally, I'd rather the US Marshals stay focused on fugitive apprehension, and I don't want the federal courts to divert their attention from sex crimes and serious violent offenses. But that's what's happening thanks to the sheer volume of immigration cases flooding Texas' southern and western federal district courts.

Rodney Ellis stumping for Harris County public defender office

If state Senator Rodney Ellis gets his way, Harris County will have a public defender office in the near future, reports Lisa Falkenberg at the Houston Chronicle ("An idea whose time has come?" March 12):

The time is ripe, Ellis believes, to begin the first real push for a public defender office in Harris County. All that's needed is one judge to support it and county commissioners to fund it. But Ellis has work cut out for him.

It shouldn't be such a radical concept. Harris County is the largest urban area in the nation without one.

Even in Texas, other large counties such as Dallas, Bexar and El Paso use public defender offices. Dallas' is the oldest. It started in 1983 with eight lawyers. It now has 90.

Ellis might get less resistance from defense attorneys than he expects. A few do-gooders are selflessly, shockingly endorsing the idea. Patrick McCann, president of the Harris County Criminal Lawyers Association, the county's largest defense bar, recently took a poll and the group's attorneys came out 2-to-1 in support of some kind of public defender office.

McCann refused to tell me how many of the 370 members participated in the poll — jokingly saying "it's more than 10" — but the fact that the group's president and its most active members supported the concept sends a message.

"I think our bar has come to an understanding that the playing field is so uneven, in terms of funding and resources," says McCann.

In Harris County, indigent defendants are represented by private attorneys whom judges appoint through a rotation system or on a contract basis. Defense attorneys complain that some judges aren't fair in divvying out appointments and some refuse to pay full costs for investigators and experts. And there are no real performance standards.

McCann says Harris County has gotten used to providing indigent representation "on the cheap." While the DA's budget is around $50 million, McCann says the county spent $24 million last year on appointed counsel. "The DAs have 30 investigators on their staff, on top of all the police they've got working for them, and we've got nobody," McCann says. "Five investigators (in a public defender office) would be such a leveling thing, you can't imagine."

Ellis also expects to get opposition from judges.

"The judges are fighting it," he told the lawyer group. "And the judges have gotten a few people who look like me and a couple who speak Spanish and some decent white folks, too, to buy into it just so they can get a few little old crumbs."

The few judges I talked to took issue with that statement, saying they wouldn't likely oppose anything that improves representation for poor defendants.

"Maybe he knows something I don't know," said Kelly Smith, staff attorney for 22 district court judges. "I've never heard any of the judges make a statement against a public defender's office."

The county's head prosecutor didn't voice outright opposition, either.

"I don't have strong feelings either way," said Bert Graham, who became acting district attorney after Rosenthal resigned. But he added, "I would think whatever gives the best representation for a defendant without breaking the county's coffers is the way you ought to go."

Even the most conservative judges in the state endorse more public defender offices, and they've worked well in other Texas counties where they've been implemented. I'd named the expansion of new PD offices one of the top criminal justice stories in 2006, and with the help of the Texas Task Force on Indigent Defense their growth has continued since then. In other states PD offices are much more common; Harris is the largest (by population) county in the nation that doesn't have one.

Harris County is receiving $1.7 million from the Task Force on Indigent Defense this year, but I could not tell from their grant information online what they're using the money for. To me, that's exactly what the Indigent Defense Task Force funds are for, and if they're not going to some version of a PD program, that money should be diverted to Sen. Ellis' pilot public defender idea. There's a decent chance after November he'll easily find new judges willing to give a PD office a try, and the Harris commissioners court will surely be more receptive if the senator comes in having identified a pot of money for them to jump start the program.

Perry to name Assistant US Attorney Ken Magidson interim Harris County DA

I'd speculated that the Governor would just wait and appoint the GOP winner in the runoff to be the interim Harris County District Attorney, but Rick Perry must not have liked the remaining two options - Pat Lykos and Kelly Siegler - because the Houston Chronicle reports that he's appointing Assistant US Attorney Ken Magidson Harris County DA, a position he'll hold for the next nine months before returning to the federal prosecutor's office.

Mr. Magidson's is not a name with which I'm personally familiar, but for initial local commentary on the appointment, see Defending People, Life at the Harris County Criminal Justice Center, BlogHouston, and Kuff.

Melee at federal detention center possibly caused by mixing pretrial, convicted inmates

After a large-scale fistfight on Tuesday night in which 9 inmates and three staff were injured at the federal detention facility in downtown Houston, one attorney "said that housing inmates awaiting transfer to federal prison for serious crimes under the same roof with pretrial defendants is a 'a recipe for disaster,'" reported the Houston Chronicle.

A couple of Mark Bennett's clients were in the facility at the time, the Chron reported, so maybe he'll have more thoughts on whether combining these classes of inmates causes other problems.

Sheriff threatens reporters with jail for writing about son's arrest

As public relations strategies go, this seems a little heavy handed, but then Duval County (home of disgraced Democratic kingmaker Clinton Manges, the famed "Duke of Duval") has always been known for its iron-fisted pols. Reported AP ("Sheriff threatens reporters with jail," March 13):

When the Duval County sheriff said he would lock up reporters from local newspapers if they kept "interfering" in his business, no one took the threat lightly.

For 20 years, Sheriff Santiago Barrera Jr. had done what he pleased with no challenges to his reign. He decided who sat in his jail and when they were released. Sometimes it was before a judge got involved and other times it was after.

"I brought the sheriff's department from nothing to what it is right now," said the 67-year-old Barrera.

That's why journalists are on edge about Barrera's recent threat to an Alice Echo-News Journal reporter.

Christopher Maher wrote a front-page story about the arrest of the sheriff's 42-year-old son Miguel Barrera on charges of public intoxication and resisting arrest. According to the newspaper, when Maher called the sheriff about another story, Barrera said, "If you guys keep interfering with my business, I'm going to have you arrested."

Nicole Perez, managing editor of the Echo-News Journal and The Freer Press alerted the county attorney.

"I am bringing these remarks to your attention in the hope that they will remain as such, just remarks," Perez wrote Duval County Attorney Ricardo Carrillo. "However, considering the volatile political atmosphere in Duval County I have no doubt that Sheriff Barrera would carry out such a threat."

Santiago Barrera confirmed he made the remarks to the reporter, and acknowledged the newspaper's story about his son's arrest upset him.

Asked how the Sheriff could stay in office for 20 years given his boorish behavior, the Duval County Attorney said, "He's a great politician and a terrible sheriff."

Second Chance Act passes Senate, headed to Bush's desk

Here's some terrific news out of D.C.: At long last Congress has passed the Second Chance Act. Since the Senate passed the same version as did the House last fall, there's no need for a conference committee and the bill now heads straight to President Bush, who is widely expected to sign it.

Thanks to Nkechi Taifa for the heads up, and congrats to all involved in passage of this important legislation. For more on details of the bill, see this page from the Re-Entry Policy Council at the National Council of State Governments.

MORE: From the Wall Street Journal, and also see a press release from Sen. Sam Brownback. Doc Berman rounds up more links.

Study: 3% of tricks by sex workers without pimps are 'freebies given to police'

The national hoo-ha over New York Governor Elliot Spitzer's prostitution scandal has inevitably generated renewed debate in the blogosphere regarding the oldest profession. Doc Berman points to an academic paper studying prostitution in Chicago (pdf) that found:

There is a surprisingly high prevalence of police officers demanding sex from prostitutes in return for avoiding arrest. For prostitutes who do not work with pimps (and thus are working the streets), roughly three percent of all their tricks are freebies given to police.

That statistic reminds me of a post about snitching on Grits in 2005, where an officer accused of having sex with prostitutes who were his confidential informants said that relationships as police snitches "are what keep escort services in business."

The study Berman referenced also estimates arrest and imprisonment rates for prostitution in Chicago:

We estimate that prostitutes are officially arrested only once per 450 tricks, with johns arrested even less frequently. Punishment conditional on arrest is limited — roughly 1 in 10 prostitute arrests leads to a prison sentence, with a mean sentence length of 1.2 years among that group.

So for a pros with no pimp, if it's true that 3% of tricks are with police in exchange for avoiding arrest, then for every 450 tricks, a prostitute will be arrested once and have sex with an officer 14 times! For every prison term given to a Chicago prostitute, following these estimates, a prostitute would have had sex with police officers 135 times! It would be difficult given that personal background, while sitting out your 1.2 years in prison, not to view the criminal justice system as indulging in blatant, enormous hypocrisy.

In practice, prostitution is "regulated" in Chicago but extralegally and informally. The "tax" paid is not money to the government but sex to beat cops in exchange for not enforcing the law - essentially it sounds like a protection racket perpetrated by law enforcers, if the study's figures are accurate.

Those are some eye popping estimates, though the research only examined Chicago. I wonder if similar ratios hold up in other jurisdictions?

In the same post, Doc Berman pointed to another batch of research on prostitution that listed a dozen things one must understand to think about prostitution. I found the list incomplete and ideologically skewed, and offered some satirical additions in the comments.

RELATED: From the Miami Herald, "Internet escort sites rarely policed." From AP, "Prostitution advances in a wired world." From Australia, "Brothel madam was police informant," Samar O'Shea at The Huffington Post asks "Is it time to legalize prostitution yet?" And giving the story an international flair, This is London informs us that the Duke of Westminster allegedly was client #6 among the ten clients discovered in the wiretap that nabbed Gov. Spitzer. CNN has an interview with the young lady in question.

Drug War still dominates US foreign policy challenges south of the border

Since Grits so far this week has focused mostly on the drug war, let's stick with that theme and turn our attention south of the border, calling readers' attention to several recent items demonstrating how US drug policy and Latin American foreign policy have become inextricably intertwined:

Washington to Mexico: Do as we say, not as we do
According to the UK Financial Times (March 1), the US has criticisms of how Mexico, Venezuela, and other countries are pursuing drug enforcement, but ironically heroin production from Afghanistan under US occupation is at an all-time high:

Washington yesterday warned that the security of Mexico and the US were at stake in the battle against Mexico's booming drugs trade, acknowledging that the increasingly violent fight is far from being won.

In a comprehensive annual report on the international drug trade, the US also said opium production in Afghanistan hit "historic highs" last year, with a harvest valued at $4bn, more than a third of that country's gross domestic product.

Some 90 per cent of the cocaine consumed in the US passes through Mexico, which last year also increased cultivation of both opium poppies and marijuana. Washington maintains that Mexican drug traffickers now control many of the drug distribution networks within the US.

Felipe Calderón, Mexico's president, has made his attempted crackdown on the country's drug cartels one of the signature issues of his tenure since taking office in December 2006.

"Mexico is confronted with an extraordinary challenge in the level of organised crime that it faces from the drug trade," said David Johnson, the chief State Department official responsible for anti-narcotics strategy, presenting the annual survey.

Mexican AG: US drug demand root cause of violent crime in Mexico
Telling US officials a message everyone knows is true but few American pols will admit out loud, Mexican Attorney General Eduardo Medina Mora Icaza says US drug demand and poor controls on black market weapons smuggling and money laundering are key contributors to instability and violence in Mexico.

``Pure cash crossing the border," Icaza said.``Weapons that are illegally shipped to Mexico from the United States and cash which relates to the illegal trade of drugs, which we assess together with the DEA (Drug Enforcement Administration) in the range of $10 billion of cash a year."

He said there's no way to break the connection between drug consumption in the United States and violence in Mexico.

``The violent behavior is the most prevalent threat to national security in Mexico," he said.

Icaza met with Gov. Janet Napolitano as he arrived in Phoenix for a conference of attorneys general from Mexico and the United States.

``The U.S. is the number one consumer in the world for drugs that are either produced or cross through Mexico," Icaza said. ``There is no way we can break the relationship between consumption in the United States" and violence in Mexico.

Assault rifles, grenades found in Cancun golf resort
For obvious reasons, authorities suspect drug smugglers after finding a cache of weapons in the Yucatan resort town that included 22 automatic weapons (some with laser sites), 14 grenades, and 500 rounds of ammunition. You could do a lot of damage pretty quickly with that stockpile.

Cartel boss who pled guilty last year walks back into Mexico a free man
Though prosecutors last year made much hay over the plea bargain and life sentence of a boss from the Tijuana cartel, one of his brothers who was just as involved was released from prison this month and allowed to go back to Mexico with no additional restrictions or pending charges. He pled guilty in 2007 to drug possession, but now is free to go. Compare that to this drug possession sentence against someone far less powerful or dangerous.

Mexico's Boss of Bosses?
Over at the BorderFire Report, read the story of Mexico's "boss of bosses" who allegedly purchased the loyalty of "Los Zetas" on behalf of the Juarez Cartel (based across the river from El Paso). I've read elsewhere that Los Zetas had separated from the Gulf Cartel, which originally recruited them, and were operating independently, but this is the first I've heard of them working on behalf of the Juarez Cartel instead.

Colombia invades Ecuador looking for FARC rebels
Finally, in Colombia a foreign policy imbroglio recently left that country, Ecuador and Venezuela on the brink of armed conflict after Colombia raided Ecuadorian territory to attack FARC rebels. BBC has the story. (For more background on America's "Plan Colombia" financing largely failed anti-drug initiatives in that country, see the recent article from Rolling Stone, How America Lost the War on Drugs.)

RELATED: From Pete Guither: UN Drug Policies Violate United Nations Charter

Binge drinking among Texans far outpaces illicit drug use

This chart surprised me in a recent federal survey showing that the prevalence of illicit drug use in Texas is lower among all age categories than most other states. I was also surprised by the wide variation among states regarding illicit drug use. Vermont had the highest rate of past month illicit drug use among young adults aged 18 to 25 (31.0 percent), and Utah had the lowest rate in that age group (12.93 percent)." In Texas, the "last month" usage rate for that age group was 16.77 percent, very much on the low end of the scale.

Interestingly, Texas had about the same last-month use rate for non-medical use of pain relievers as for marinuana - 11.94% among those age 18-25 had taken pain pills for non-medical reasons, compared to 12.09% among that age group who'd smoked pot..

Given how many people we send away for drugs, and for how long, not to mention our proximity to the border, I guess I'd wrongly assumed Texas faced more serious drug abuse problems than other states. According to these data, alcohol still outpaces illegal drugs as Texans' intoxicant of choice by a country mile - 40.99% of Texans age 18-25 engaged in binge drinking in the past month, according to the survey.

The full report is available on the Web here, via Medical News Today.

'Operation Byrne Blitz' makes explicit arrests-for-dollars link

Should law enforcement time arrests to generate media coverage aimed at supporting approval of pork barrel funds in the political process?

That's what's happening nationwide right now with drug task forces funded by the federal Byrne grant program. We got rid of ours in Texas, thank heavens, but other states' task forces are participating in Operation Byrne Blitz, a national campaign to publicize arrests last week in order to influence debate in Congress over their money. I'd seen the stories, but didn't realize this was a formal PR effort until reading a story from Kentucky ("CKADTF arrests total 13, part of National drug blitz," The Richmond Register, March 8), describing a series of arrests that were

"coordinated on the dates in conjunction with Operation Byrne Blitz.”

The operation was named for federal funding — Byrne/JAG — that was cut by President George W. Bush in an omnibus appropriations bill in December by $350 million. Byrne/JAG “provides funding to states and local areas to improve criminal justice system operations,” according to a National Narcotic Officers’ Associations’ Coalition press release.

This happened informally in Texas when the task forces' fate was being decided, with local officials staging arrests then bragging to the local media how indispensable their services were. But it takes a lot of chutzpah to take that concept to the level of a national campaign and give it an Operation title. (Here's another news article where the link is made explicit.)

These agencies have nearly made official what was de facto true in practice, anyway, making arrests in order to pursue funding, not to improve public safety. Now, with "Operation Byrne Blitz," some drug warriors apparently have dropped all pretense.

I find the manufactured media "blitz" offensive and insulting to the public. Let's hope Congress sees past it.

Related recent posts:

• Sheriff real, unintentional star of 'Tulia' film
• Byrne task force funds mainly financing low-level drug enforcement
• How do you define success in drug enforcement?
• Byrne task forces account for huge proportion of drug arrests in other states
• Congresswoman still spreading Tulia's lessons in Washington
• Texas' Tulia Lesson: Dems should join GOP in abandoning failed drug task force strategy

Editorial: Citations for low-level pot busts make safety sense

The Dallas News today has an editorial with which I wholeheartedly concur, congratulating authorities on agreeing to a pilot program allowing police to issue citations instead of arresting certain low level misdemeanants ("Citations vs. Jail Time," March 10). Though Dallas has a significant jail crowding problem, the News' editorialist framed the issue in terms of whether officials adequately trust police, arguing that:

it makes perfect sense to give street cops the option to write citations for certain lower-level crimes instead of requiring them to continue with the time-consuming arrest and jail booking process. We trust them to shoot or retreat. They can handle this.

Good point! I also agree when they write:

We only hope Dallas police and prosecutors get over their reluctance to apply this program to misdemeanor marijuana possession. Does every 20-year-old popped for two or three joints need to see the inside of a jail cell?

If we're going to be smart on crime, let's use our heads.

Dallas is the second major city (after Austin) to implement the new police authority, but in some agencies the same practice has been in place for years.

How do you define success in drug enforcement?

If you're a drug enforcement officer, how do you judge if your efforts have been a success?

According to the head of the HIDTA (High Intensity Drug Trafficking Area) task force in Atlanta, you know you're doing the job right when you see an increase in burglaries, armed robberies and murders! Reported the Atlanta Journal Constitution ("Federal vice agents tout successes," March 9):

He credits last year's spike in area burglaries, robberies and car thefts in part to criminals forced to pay more for their illicit drugs.

If law enforcement someday succeeds in breaking up established drug territories — the real sign of success from a metropolitan perspective — it could mean a similar spike in murders, as drug organizations vie for a larger market share.

"If the market here gets unstable down to the street, then the streets will get bloody," said [Jack] Killorin, director of Atlanta High Intensity Drug Trafficking Area Task Force (HIDTA). "I don't think we're there yet."

In reality, the notion that drug prices increased last year because of enforcement has been pretty thoroughly debunked. Still, the mindset here is incredibly telling, don't you think? One expects the general public does not see increased burglaries, robberies car thefts or murders as evidence of any success by law enforcement.

There is an art to redefining failure as success, and this gentleman has mastered it.

Sixty year sentence for low-level drug possession fills prison space needed for dangerous offenders

There are two primary causes for Texas prison overcrowding, and the Legislature's reforms last year only really addressed one of them: Too many probation and parole revocations, and too-long sentences for non-violent crimes, especially drug offenses.

For an example of the latter, look no further than a recent edition of the Tyler Morning Telegraph, where we read the story of a man who received a 60 year sentence for possession of 1.46 grams of meth and 2.93 grams of marijuana ("Meth possession nets convicted felon 60 years," March 6). Reported the paper:

Rickie Dawson York, who turned 39 on Tuesday, pleaded guilty to possessing 1.46 grams of meth on Oct. 16. A Smith County jury sentenced the Tyler man after 25 minutes of deliberation in 241st District Judge Jack Skeen Jr.'s court.

The third-degree felony, which carried a punishment range of two to 10 years in prison, was enhanced to a first-degree, with a possible sentence of 25 years to life in prison, because of his two prior felony convictions. York will have to serve 15 years before he is eligible for parole. ...

He possessed 1.46 grams of meth and 2.93 grams of marijuana, according to lab reports.

York, also known as Mark Burton, was convicted of delivering marijuana in Dallas County in 1996 and possessing a prohibited weapon in Smith County in 2006, for which he was on parole. Beginning in 1987, he has also has been convicted of theft, possession of a controlled substance, failure to identify/fugitive from justice, criminal mischief and theft by check.

Assistant Smith County District Attorney Zach Davis said York continued to commit offenses whenever he was released from jail or prison and will never change his behavior. The defendant testified he has had a drug problem for 21 years but, Davis said, he has never sought treatment for his addiction.

He asked the jury to sentence York to life in prison to send him a message to stop using and selling drugs and stealing from people.

Defense attorney Steven Comte said the punishment range was 25 years to life only because of York's criminal history, but that he has been punished and has served his sentences for all of his prior convictions.

"There is nothing about Mr. York's history that is violent and life should be reserved for the most heinous individuals out there," he said.

I find it difficult to imagine a prosecutor with a straight face asking for life imprisonment for this petty nonviolent offender, and more difficult still to understand how 12 sentient people in my hometown could agree a 60 year sentence was in order. He'll be eligible for parole after 15, but "eligible" doesn't mean that's when they let him out. In any event, at current costs, that means taxpayers will spend a quarter of a million (2008) dollars, minimum, and up to a million dollars to incarcerate this guy.

So the next time you hear Williamson County DA John Bradley complain in the press that the parole board has released some violent felon early, remember why they're doing it: Too many low-level, nonviolent offenders are serving long, mandatory sentences, taking up space needed to keep violent criminals there longer, especially since the state can't manage to staff the prisons we've got.

Actually proposing to reduce sentences for drug crime is almost a third rail in politics - a sure fire way to draw an opponent in the next cycle claiming you're soft on crime. But this would be a smart place to start. From a fiscal and safety perspective, it makes tremendous sense to reduce the highest penalties for drug possession from the first degree felony category (5-99 years) to a second degree felony (2-20). A corollary reform would be to disallow low-level possession charges to justify "habitual offender" status.

The long-term savings would be dramatic, and it's hard to argue from a public safety perspective that mere drug possession, with no commercial transaction or violence involved, should ever receive more than a 20 year sentence. But the change would reduce not just long-term incarceration costs but rising healthcare costs for older prisoners, which is the primary cost driver right now in prisons for health care. Every year 1.5% more people come into TDCJ, according to UTMB, but 14% more every year turn 55 years old, after which they have 5-6 times more medical visits than younger offenders.

Ironically, because of the way the Legislative Budget Board calculates its cost estimate for sentencing increases (and reductions, if there were such a thing) doesn't calculate far enough into the out years to capture the savings. But when you consider the savings from just this one example, a max sentence of 20 years would save taxpayers somewhere in the range of 2/3 of a million (2008) dollars. When you start to add up the number of drug users being convicted every year, at those costs, pretty soon it starts to add up to real money.

Byrne task force funds mainly financing low-grade drug enforcement

Having reviewed the new Tulia, Texas documentary yesterday, it's fitting to find quite a bit of recent drug task force related news to add context to the discussion.

Off the bat, around the country the backlash is growing among drug enforcers against proposed cuts to the Byrne grant program in Congress. The Steroid Report points to a high-profile Sheriff in Michigan lashing out in a Detroit News story, criticizing grandstanding in Congress over steroids in baseball while cutting funds for the war on drugs ("Federal funding cuts may mean fewer narcotics officers on the street," March 8):

[Sheriff] Bouchard said he would like to see Congress shift its interest in alleged steroid and human growth hormone use in Major League Baseball and focus more on funding the fight against drugs.

"While Congress focuses on the need to eliminate drug use from baseball, law enforcement is struggling to get action on Byrne . . . which fights drugs not just in baseball, but on our streets and in our neighborhoods," Bouchard said. "Literally thousands of children have been saved from drug scenes by this program."

The Sheriff is not alone decrying the funding cuts, though perhaps predictably, the only folks you hear complaining are the grant recipients. It's difficult to understand what Sheriff Bouchard is talking about when he says "thousands of children have been saved from the drug scenes." In their 20 years of existence, no objective measure shows that drug consumption or availability has been reduced in areas where Byrne task forces operate.

In Texas, when I examined task force grant applications several years ago, a pattern emerged (reported in an ACLUTX public policy report called "Too Far Off Task" in 2002) that every task force estimated and usually achieved INCREASED drug arrests every single year. Indeed, that's how they measured "success," to increase arrests from the year before. If arrests are increasing every year, though, you're losing the "war on drugs." When you think about it, if they're successful, the ultimate goal of law enforcement should be for drug arrests to decline.

The sky didn't fall here when our system of drug task forces lost their funding, and it won't in other states, either.

Meanwhile, an article in the Baltimore Sun featured former Permian Basin drug task force cop and inveterate self-promoter Barry Cooper with a new How-To video ("Former narc gives advice on avoiding arrest," March 9):

Cooper, 38, a fast-talking former narcotics cop, is best known for changing sides in the war on drugs in December 2006, when he released Never Get Busted Again. In the DVD, he offered marijuana users advice on how to avoid arrest during traffic stops.

Police greeted the movie with sarcasm, but no real concern.

Now Cooper has begun shipping a new title, Never Get Raided, which teaches viewers how to buy, sell and grow pot without going to jail. He also gives tips for identifying undercover officers.

"Now that's getting a little close to home," said Richard Dickson, who served with Cooper on the West Texas Permian Basin Drug Task Force in the 1990s. "That kind of information affects all kinds of undercover agents. It puts all kinds of operations at risk, even on homeland security issues." ...

"The last three months of my law enforcement career, I had started smoking pot," he said recently, sitting at his kitchen table in Big Sandy, a small town east of Tyler. "And I noticed the people I had been arresting were nice people. They had a balanced checkbook, their kids made straight A's, and I was like, 'This drug is not making people crazy.'"

He advocates the legalization of all drugs. If the laws changed, he said, addicts would receive better treatment, drug-fueled crime would plummet and illegal drug empires would collapse.

It is similar to an argument advanced by Law Enforcement Against Prohibition, an organization of 10,000 members including former judges, prosecutors, federal agents and police officers that opposes the war on drugs.

"We don't agree philosophically at all on these issues," said Jack Cole, executive director and a 14-year undercover officer for the New Jersey State Police. "He thinks he should be able to school people on how to break the law; we believe in changing the law."

Drug laws will be broken, whether or not the law is changed, Cooper said. He's simply trying to help people avoid jail time for non-violent crime:

"Americans are not going to stop growing it, they're not going to stop buying it, they're not going to stop smoking it, even if you continue to put them in jail."

He said the discovery of seven fields and more than 25,000 plants near Dallas last summer illustrates his point.

Dallas Police Department Deputy Chief Julian Bernal doesn't dispute the public's appetite for marijuana, but he condemned Cooper's tactics.

"I think it's unconscionable for an ex-law enforcement officer to give tips to criminals. I don't think there's any question he's putting officers in danger, and he bears full responsibility for that."

I didn't promote Cooper's first video because I thought he gave bad advice to drivers about consenting to searches at traffic stops (he told them to do so, and just gave advice how to successfully hide drugs in your car, while I think all drivers should exercise their 4th Amendment rights and decline so-called "consent searches"). I'm not any more enamored of a video trying to teach people to out undercover cops, though like Cooper I'm a critic of the erosion of the Fourth Amendment at traffic stops and the increased use of military-style police raids. Still, Cooper's apostasy continues to fascinate the media, and I've heard his video products sell fairly well.

The Sun mentions that during his career as a drug task force officer, Cooper made 800 arrests including 300 felony arrests. That's a particularly interesting statistic because the only misdemeanor drug charges in Texas are for marijuana. That means 5/8 of the arrests Cooper made as a drug task force officer were for less than 4 oz of pot, not for harder drugs.

I'll bet an investigation into the specifics of who drug task forces arrest in other states would yield similar results, but that's not been the focus of recent press coverage on the subject. Those are pretty low-level targets, in the scheme of things, and helps explain why eliminating drug task forces in Texas didn't really harm public safety.

RELATED, via Drug Law Blog: Crappy Hackington Award: Chicago Tribune Invokes "Narcotic Scourge" And Stumps for the Byrne Grants

Sheriff real, unintentional star of 'Tulia' film

The slew of drug arrests in Tulia in 1999 set off a wave of legal wrangling and political action that turned the state's criminal justice establishment on its ear, and ultimately resulted in the pardoning of dozens of wrongfully convicted people and the dismantling of Texas 50+ Byrne-grant funded drug task forces.

Now, nearly a decade later, those ripples from the legal and political world are steadily filtering into the cultural milieu.

Yesterday afternoon I attended the premier of a new documentary - Tulia, Texas - which opened at the SXSW film festival. Tulia activist Freddie Brookins and his wife, parents of one of those wrongfully arrested, along with Nate Blakeslee, author of a book on the case, attended and answered questions afterward. The missus and I joined them and the filmmakers, Cassandra Herman and Kelly Whalen, afterward at Ruby's BBQ for a meal and a chat.

The hour-long film, which was funded through a public television grant and may wind up on PBS within the next year, featured more extensive interviews with undercover agent Tom Coleman and Sheriff Larry Stewart (the real star of the show) than have previously been available - Blakeslee told me he never got that kind of face time with Coleman in all his years covering the story, and I'm not sure anyone has. I've never heard the disgraced peace officer speak at such length except on the stand.

I say Sheriff Stewart was the star of the show, because his comments more than anyone made sense of the situation for outsiders - not because he explained it well, but because he epitomized the deep denial of any wrongdoing or wrong thinking shared by so many in Tulia. His statements seemed so oblivious to facts proven in both the courtroom and the extensive paper trail documentation, you almost felt sorry for the guy, who clearly was in way over his head.

Almost.

One's sympathy dried up, though, as evidence mounted through the film that Tom Coleman's statements repeatedly didn't match the facts (which resulted, ultimately, in his perjury conviction), and stories emerge of families losing loved ones for several years based on this man's uncorroborated word.

The film is visually gorgeous, and the filmmakers had been tracking the case since 2002, so they had lots of footage from the courtroom drama over the years. I attended several of the events and court hearing featured in the show, and found myself scanning the crowd scenes looking for (and finding) many familiar faces.

Attorney Jeff Blackburn similarly came off in the show as both a legal hero and quite a character, which if you know him is a pretty accurate portrayal. Jeff's a real piece of work, and it shows. Now that he's running the Innocence Project at Texas Tech, I'd guess this video should help significantly with his fundraising; I hope so, anyway.

Most coverage of what happened in Tulia falls along one of two paths - tracking the legal case, as this film and Nate's book do, or tracking the political process, which has dominated much of the MSM news coverage over the years. The piece that you didn't get from the film was that a large-scale, statewide movement developed around the case that passed several corrective laws and ultimately convinced the state to abolish Texas' drug task force system entirely.

It would be possible to view this film and think, "This is just a story about an aberration in a rural backwater, it doesn't happen anywhere else." But drug task forces nationwide operate on an essentially similar model to the one in Tulia. That's a point I wish the film more strongly emphasized, especially at a time when the Byrne grant program and drug task forces nationwide face major budget cuts. President Bush want to de-fund the task forces, which in some states are responsible for up to 85% of all drug arrests.

Indeed, the film only hinted at the odd, left-right coalition that worked together on the political end of the Tulia saga. A questioner after the show expressed surprise that Bill O'Reilly took up the Tulians cause, and the filmmakers were at a loss to explain why. But really, conservatives were as alarmed at this case as liberals. To me, that's one of the most important new developments from the whole episode.

Nationally, the Heritage Foundation and the National Taxpayers Union have been more active opposing drug task force funding than any liberal group. Then-House Criminal Jurisprudence Chairman Terry Keel (R) and Sen. Juan "Chuy" Hinojosa (D) spearheaded the relevant legislation that ultimately led to the task forces' demise in Texas and a requirement for corroborating evidence for testimony of undercover drug informants, while Gov. Perry's pardon placed his permanent imprimatur on the case.

Meanwhile, the Tulia episode taught organizations working at the capitol in Austin who'd previously been on opposite sides of the fence to work together for the first time, a development that contributed greatly to coalitions pursuing other criminal justice reforms like strengthening probation or expanding treatment capacity in the justice system.

All that to say, this film captured an important piece, but IMO not the full the legacy of the Tulia case, which in some ways has yet to fully play out. I've wondered if we may look back in a couple of decades and see Tulia as a major turning point for the criminal justice system, an event that permanently changed the terms of debate about America's war on drugs. I hope so.

BLOGVERSATION: See another early review from the Drug Law Blog. See also from Panhandle Truth Squad, a story about Jeff Blackburn demonstrating thta some men are born to greatness, and others have greatness "spilled upon them."

Statesman: Governor rewards "eyes and ears" that were "blind and deaf"

The Austin Statesman's editorial board found the Governor's appointment of Alfonso Royal as the new TYC chief of staff as odd as I did, editorializing yesterday ("Oversight indeed: Perry rewards aide," March 7) that:

Gov. Rick Perry has arranged to have one of his budget aides, Alfonso Royal, named chief of staff of the Texas Youth Commission. It’s an odd appointment given that, despite his position on the governor’s staff at the time, Royal had little or nothing to do with uncovering last year’s scandal at the commission.

Royal was one of several gubernatorial aides who oversee various state agencies, acting as the governor’s eyes and ears. One of his agencies was the Texas Youth Commission.

In late October 2006, Royal was given graphic reports of sexual abuse by two administrators at a commission facility, the West Texas State School in Pyote. The two men had left the school, but they remained free, and the Texas Ranger who had investigated the abuse had been trying for a year to get the local prosecutor to act. A legislative aide who learned of the Ranger’s frustration told Royal of the problem on Oct. 30.

Records indicate that over the next month, Royal spent 12½ minutes on seven phone calls to the local prosecutor and the Ranger about the case. Just this week, a spokesman for the governor said Royal did all that could be expected, especially given that the two administrators already had left.

But the governor’s eyes and ears apparently were blind and deaf to the depth of rot at the commission hinted at by the Ranger’s reports. Or maybe Royal did not want to disturb the governor in the last days of his political campaign before that year’s election, on Nov. 7, against Chris Bell, a Democrat, and two high-profile independents, Carole Keeton Strayhorn and Kinky Friedman. (Perry won, with 39 percent of the vote.)

At any rate, when the reports of sexual abuse of inmates and other problems at the commission finally broke statewide in February 2007, Perry said the first he knew of the Ranger’s frustration in getting the cases prosecuted was when he read a story in The Dallas Morning News.

News of just how bad things were at the Youth Commission - abuse of inmates, the hiring of guards and supervisors with questionable records in their own past, internal efforts to hush up reports of abuse - exploded, thanks to the media and the fact that the Legislature happened to be in session. ...

But Royal had seen nothing, heard nothing, reported nothing to the governor.

The governor, however, is pleased with Royal’s performance, said a spokesman. And it’s not just talk: Royal’s salary has jumped from the $70,000 a year he was paid on the governor’s staff to $109,950 a year at the Youth Commission.

It doesn’t make sense to us.

It doesn't make a lot of sense to me, either.

DOJ investigating Harris County Jail

The defining reforms in Texas corrections historically have come about through federal litigation: The famous Ruiz case for our adult prisons, and Morales v. Turman at TYC, constituted the most significant impetus for change at those agencies in the last half century.

So it must make prison and jail administrators nervous that Texas has received a lot more attention lately from federal authorities regarding deficiencies in our corrections systems. First DOJ released a scathing report about healthcare at the Dallas County Jail. Then recently the Texas Youth Commission entered into an Agreed Order to end litigation over the Evins Unit in South Texas.

Now, the feds are turning their sights on the massive Harris County Jail system, AP reports (March 7):

The U.S. Department of Justice is investigating the Harris County jail system, officials said Friday, probing sanitation and health conditions that have come under scrutiny from civil rights groups in recent years.

Department of Justice officials, in a letter to Harris County Judge Ed Emmett, said its investigation will focus on "protection of inmates from harm, environmental conditions, and inmate medical and mental health care."

For the last few years, civil rights groups and local religious leaders have criticized the jail system, alleging overcrowding and poor health conditions. They have compared the jail to a "slave ship."

The jail system has a population of nearly 9,900 inmates, according to a Texas Commission on Jail Standards report last month. The commission lists the capacity at about 11,000.

In a statement, Harris County Sheriff Tommy Thomas, whose department runs the jail system, said federal officials will have his agency's "full cooperation."

The Justice Department said in its letter that it has not made any conclusions in the case.

Harris County's jail houses more inmates than the entire prison systems in a score of states - more than 9,000 at the jail, and another 600 housed in private contract facilities in Louisiana. The jail in Houston actually has almost 2,000 empty beds, but the Sheriff can't hire enough guards to staff it properly; for a while, before they contracted with the Louisiana facility, many Harris jail inmates were sleeping on mattresses on the floor.

Harris voters wisely rejected new jail building last fall; why build new space when you can't staff the facility you've got? Harris County officials have many options besides jail building to reduce overcrowding, if local judges and the commissioners court would support them, but Sheriff Thomas is pursuing policies that make the problem worse. Maybe pressure by the feds will encourage Harris County to consider more practical solutions than building jails that can't be staffed.

See Grits' series on the Harris County Jail from 2005 - most of the issues described therein have changed very little.

Here and there about the blogs

Here are a few items from around the blogosphere that caught my interest today.

Robert Guest who had been blogging at I Was the State has a new blog, Dallas Criminal Defense Lawyer Blog, where he'll be spending his time now. Update your blogrolls accordingly. Note to Robert: The old name was MUCH better, though the layout of the new one is superior. What was wrong with "I Was the State"?

Meanwhile, Migra Matters has several good posts up on their blog that add context to some of the issues I was writing about earlier today.

Steanso, an Austin prosecutor whose blog I hadn't run across until Jamie Spencer mentioned it, shares his thoughts on the Pew report that one in 100 US adults is incarcerated, as well as the Roger Clemens steroid case.

Simple Justice recently shared an hilarious YouTube sendup of economic theory, and I enjoyed a nice conversation on some of the issues raised in the comments.

Stephen Gustitis is in trial and his case features "snitches galore."

Finally, Kevin Kelly thinks a blogger can make a living if s/he has "1,000 True Fans."

Stop Digging: US policies enriching Mexican drug cartels

When you find yourself in a hole, the saying goes, the first thing to do is stop digging. But when fighting Mexican drug cartels, US policy over the last several years has been to buy more shovels and hire laborers to make the hole deeper and wider.

As Mexican soldiers engage in battles with cartel gunmen south of the border and Congress considers the Bush administration's $1.4 billion pork barrel anti-drug aide package, it's worth stopping for a moment to consider how we got here. It wasn't that long ago that the big drug lords lived in Colombia, and the Mexican "cartels" were regional smuggling operations that may have corrupt contacts in local police, but did not compete openly with the government for power.

US policy, though, combined with international economic trends, have added several major new revenue streams to the cartels' business, enriching them beyond the imagination of the boldest observers at the turn of the century.

• NAFTA, combined with US corn and ag subsidies, eliminated millions of rural agricultural jobs in Mexico, driving workers into Mexican cities in droves, as well as north of the border into the United States.
  
• Meanwhile, expanded immigration enforcement shifted immigrant smuggling from informal systems to more expensive, cartel-run criminal smuggling organizations.
• Restrictions on pseudoephedrine over the counter in the United States eliminated most local self-suppliers and shifted the lucrative methamphetamine trade to the cartels' control.
• Lack of western US port access has meant more Asian imports coming in through Mexico. Smuggled goods of all types coming in from Asia are now just packed in the same trucks and vessels carrying immigrants and dope. Simultaneously, the resurgence of Afghan poppy production under US occupation adds new heroin supplies to this Asian mix.
• Marijuana remains the mainstay of cartel income, according to federal officials, but as with meth, US policy has targeted domestic production. The Department of Justice has been cracking down on medical marijuana dispensaries in California, and domestic grow sites are a principal target of Byrne-grant funded drug task forces, tipping market share further in Mexico's direction.
  

These trends have combined to enrich Mexican cartels unimaginably, even financing military-grade weapons purchases, most of which is smuggled in from the United States through the checkpoints, and a great deal of it from weapons purchased at gun shows in Dallas and Houston, according to Mexican and US officials. An excellent article in Word Politics Review ("As violence grows along border, Congress debates funding for fighting Mexican drug cartels," March 7) sums up what's happened, blaming most of the impact (certainly the volume) on boosted immigration enforcement:

It is difficult to gauge with hard statistics just how well these measures have worked. But local and federal law enforcement officials in Arizona and Texas, academics, activists and migrants themselves all agree that, in recent years, it is much harder to get into the United States illegally from Mexico.

But an unintended consequence of these tighter controls has been the rapid criminalization of the border, according to these same people. The coyote business -- the trade of moving people across the border illegally -- has fallen into the hands of Mexican drug cartels, which are now using what were once human smuggling routes to run drugs into the United States. Essentially, human and drug smuggling operations have become one and the same.

"Human smugglers and drug cartels were [once] separate entities. A lot of the time the human smugglers were using the same corridors the drug runners were using," said Special Agent Joe Romero, a spokesman for Border Patrol, during a tour of El Paso's border with Juárez. "The routes that were being used by the human smugglers, they were burning those areas for the drug runners. So [drug cartels] decided to basically take control of those routes. Now they control all of these routes."

There are some who will inevitably read this (Hi, kaptinemo!) and immediately declare that the solution is drug legalization. For cocaine and heroin, in particular, I'm increasingly skeptical how well that would work. Look how poorly we do regulating legal drugs: tens of millions of people taking Prozac and other anti-depressants just found out the companies knew all along they didn't work. "Regulating" drugs may provide little real-world protection, or else continue a high-end black market. For the time being, my personal preference would be a harm reduction approach.

On immigration, though, and probably also for marijuana (which after all is safer for users than alcohol), the nation is cutting off its nose to spite our collective, increasingly brown face. Taking those funding streams away from the drug cartels through some manner of "legalization" - a regulated market for pot, and some form of amnesty and expanded quotas on immigration - would strike a crippling financial blow to the criminal gangs currently battling each other and President Calderon's army in Mexico.

Among presidential candidates, Obama's stated positions are closest to those policies, but all three candidates support immigration reform that should assist substantially, if it can make it through Congress. On the corn subsidies, I wonder if those can EVER be deleted so long as Iowa's presidential caucuses are first.

Perhaps after the next election, the US will take advantage of its historic opportunity to rethink foreign policy on our southern border in addition to overseas, before the violence in Mexico spills even further onto the American side.

Judge who promoted Prometa defeated at polls

While I've completely dropped the ball covering the dustup over a Collin County judge's questionable experimental sentencing of probationers to use of "Prometa," an anti-addiction medication, Bill Baumbach at the Collin County Observer has been all over it, and has another excellent post and roundup informing us that the judge in question was defeated at the polls on Tuesday. Reports Baumbach:

Judge Sandoval contacted Hythiam [a drug company] last year and with little public input or oversight, began a pilot program on 20 probationers in his court. On his website, Sandoval claimed to save the county $400,000 in the pilot tests.

Attempts by The Collin County Observer to see documentation of the financial claims were answered by Sandoval with, "This office has no records of the Prometa pilot program."

While Sandoval and Hythiam touted great successes with Collin County's program, others, including the county's own probation manager disputed the data.

In spite of it's spotty record, the last Texas Legislature appropriated $2 million for "Medically Targeted Substance Abuse Treatment" programs. The grants were written to allow more pilot program testing of Prometa. Collin County received a grant of $158,000 under this program. So far our inquiries have not found any experiments or expenditures of the grant money.

These pilot programs, whether funded by Hythiam or taxpayers are used by Hythiam as marketing tools. Look at the last pilot done in Collin County. All records are kept by the company. Collin County and Sandoval's court have little or no recruitment or results data. All was turned over to Hythiam, which then issued glowing press releases (and no data).

The lack of records is glaring, and troublesome - especially since one of Collin County's test subjects died before the end of the study. (The cause of death was noted as "suicide".)

All attempts by the Collin County Observer to gain insight into how the test subjects were recruited, what promises were made, and what rewards or consequences were offered were rebuffed by the county and court. Collin County and its court had no such records, even though many of the test subjects had just been released from jail - presumably to take part in the program.

Bexar deputy's arrest shows police more deserving of steroid investigation than baseball players

As the media continues to rip into Barry Bonds and Roger Clemens over allegations of steroid use, I continue to wonder when the same sort of systematic attention will be paid to steroid use among law enforcement?

When I first raised this issue, more than a few people expressed surprise and said they didn't believe it was common. So since then, I've been paying closer attention when these cases come up, especially in Texas. Last month in San Antonio, a Bexar County Sheriff's Deputy was busted purchasing steroids at his off-duty job as a flea market security guard, reported WOAI radio ("Deputy arrested and charged with drug possession," Feb. 12):

The deputy, 34-year-old Omar Rubio, was taken into custody Saturday. Sheriff's detectives said Rubio was in his full deputy's uniform when he purchased several vials of illegal steroids.

"The sheriff's office started an investigation about 90 days ago into the allegation that Rubio had been purchasing and possibly using steroids," said Deputy Chief Ronald Bennet of the Bexar County Sheriff's Department.

Sources inside the sheriff's office said a tipster warned detectives about the 34-year-old deputy and the illegal body enhancing drugs.

The Bexar Sheriff's department only discovered the deputy's drug use because an informant came forward, not because of departmental testing or other proactive efforts by the Sheriff. In the scheme of things, it's a lot bigger deal if law enforcement officers are engaging in black markets to purchase performance enhancing drugs than if Marion Jones or Andy Pettite did so. But while federal investigators went actively hunting for steroid use among sports stars, apparently abuse among police isn't so big a priority. Authorities usually only go after such cases among law enforcement, as in this instance, when somebody hands it to them on a silver platter.

See prior related Grits posts:

• Where is Congressional investigation of steroid abuse among law enforcement?
  
• Congressional steroid hearings an abuse of power
• Lawsuit: Private mercenaries, police trainers abuse steroids in Iraq
  
• Contrarian views on steroids hysteria
  
• DOJ media ploy on steroid investigation rightly decried as foul
  
• Marion Jones already punished, why send her to prison?
  
• Clemens informant shielded from prosecution: Do snitch agreements give incentives to lie or tell the truth?
  
• Baseball's Mitchell report relies on uncorroborated, coerced informant testimony to accuse 'Rocket' Roger Clemens
  
• Barry Bonds perjury indictment is pure USDOJ media ploy
• Why test Texas high school athletes for steroids but not police officers?
• Arbitrator reinstates steroid using police officer
  
• Cops on Steroids
• Insert Shrunken Testicle Joke Here: Book by ex-Texas cop defends steroid use by police
  
• Feds should check names of steroid customers with state law enforcement registries

Against "Link Rot": Using citations in blog posts helps combat decaying usefulness of web links

This post is really for other blog writers, but the rest of y'all mere readers can still check it out if you like:

Perhaps it's hubris to propose a uniform blog citation standard. Perhaps the point of blogs is their freedom from conforming to the constraints of other media. But the blogosphere is still early in its development as an information medium, and I'm beginning to wonder if it isn't time for those of us who write seriously online to begin to professionalize what we're doing just a bit.

Bruce Schneier in Wired Magazine gives a name to a concept about which I've given a lot of thought: "Link rot," or when the links in your blog or website get old and no longer link to the original, relevant, material. His point is that when Third Parties control your information, it might disappear at their whimsy. It's an excellent essay that I recommend, but here's a snippet of the problem he describes ("Third parties controlling information," Feb. 27):

Bits and pieces of the web disappear all the time. It's called "link rot," and we're all used to it. A friend saved 65 links in 1999 when he planned a trip to Tuscany; only half of them still work today. In my own blog, essays and news articles and websites that I link to regularly disappear -- sometimes within a few days of my linking to them.

It may be because of a site's policies -- some newspapers only have a couple of weeks on their website -- or it may be more random: Position papers disappear off a politician's website after he changes his mind on an issue, corporate literature disappears from the company's website after an embarrassment, etc. The ultimate link rot is "site death," where entire websites disappear: Olympic and World Cup events after the games are over, political candidates' websites after the elections are over, corporate websites after the funding runs out and so on.

I find this to be a particular problem with political, legal, and other nonfiction weblogs. If your blog is about your family life, your links and sources don't matter much. But if you're writing about the issues of the day, as this blog attempts to do, part of the credibility of any argument is inevitably one's sourcing. That's why you put the link there in the first place, so anyone who wanted to read the backup to your argument could go do so for themselves.

In the 3-1/2 years I've been writing on Grits I've developed my own protocols to combat this troublesome "link rot," using an abbreviated citation whenever I pull quotations I want to preserve for future use (in future arguments, public testimony, policy reports, or other information products). It's the same citation formula used with Schneier's quote above. You might have noticed before if you're a regular Grits reader, see here, here, and here. Essentially I put in parentheses the headline of the article, the date, and make sure somewhere in the post is the name of the publication from which I pulled the data.

Most bloggers, by contrast, simply link within a sentence to the point they're referencing, or even just say "Go here." Kuff is a good example of that blogging style, as is Schneier himself.

Putting enough data for a footnotable citation for the "money quotes" used in blog posts saves me a lot of time and legwork, and is one of the main reasons I blog in the first place. You use your judgment, of course, and I don't put a citation for every quote used on Grits - just those bits of datum from transitory media websites and other spots that I fear might be subject to "link rot," to use Schneier's term.

For example, I don't use citations when linking to other blogs (though some of them ultimately go offline), or in a passing reference when I don't pull any specific "money quote" or statistic. But when I use a significant quote from a source, I try to record at least enough information so that later I could footnote the argument without finding the original item, something I've done MANY times. That way, blog arguments and sourcing posted here remain valid even if, over time, the post suffers from "link rot," and I (or others) don't have to go back through old newspaper archives looking to pull one quote you didn't source properly.

Schneier's main point is that if a third party controls your web access (i.e., if you don't own your own server), you aren't fundamentally in control of your own data, citing a wine lovers user group that lost years worth of hosted discussions. My own inadequate solution to that is to back up my blog posts once a month in a text file on my hard drive. That doesn't preserve discussions in the comments, though, if Google's blog architecture ever went down.

That said, third party hosting can also work positively against link rot. For me, continuing to use a Blogspot blog after all this time is partially a long-term homage to the reality of link rot. If I quit writing on Grits tomorrow, there's a lot of useful information here from years past that people access all the time via search engine, etc.. If I were paying for a blog host, when the contract ran out that information would go off the web. On Blogger, presumably old blogs stay online ad infinitum, at least until Google changes its policy (which seems unlikely in the near-term).

Link rot is an annoyance, not a big problem, but adding footnotable citation data to the "money quotes" on blogs adds value and staying power to the medium, and adds tremendous long-term use-value for the writer, as well, I can tell you from first-hand experience.

Pew Center on States lauds Texas' 2007 probation reforms

The Pew Center on States had nice things to say about Texas' prison and probation reforms from 2007, citing them as the main reason for the state's high score on it's state report card:

As last year's budget deliberations began, Texas was looking at a 17,000-bed shortage of prison space over the next five years. To deal with that problem, the Department of Criminal Justice submitted a $520 million proposal for three new prisons, as well as modest support for drug treatment in order to cut down on recidivism.

But the legislature, bolstered by a report from the Sunset Advisory Commission — a legislative entity that assesses the effectiveness and efficiency of Texas' agencies — crafted an alternative plan to invest more funds in programs with a track record of reducing recidivism. This biennium, those efforts are getting $240 million. Current projections for prison population show zero growth over the next five years.

Is this kind of work now part of the state's permanent governmental culture — impervious to changes in leadership? That's hard to know. But the state's budget process leaves legislators with the tools they need to focus on performance.

The Houston Chronicle in its coverage honed in particularly on Texas' low per capita spending as an example of the state's efficiency, but that could also be because the state underspends on education, drug and alcohol treatment, indigent mental health care, and other critical services that caused the prison overcrowding crisis in the first place.

The Texas state government spends less money per resident than any other state in the country, according to a new survey that also ranks Texas as the fourth best-run state in the nation.

Texas spent $3,638 per year for each person in the state, according to the report — less than one-third the amount of top spender Alaska's $12,833. While the Lone Star State budget ranked third in the country, Texas spent about half as much per resident as the states ahead of it, California and New York.

The report card from the Pew Center on the States, released Monday, gave Texas an overall grade of B+ for quality of governance, improving upon its grade of B from its last report card in 2005. The state scored highest for its innovative uses of technology.

Only Utah, Virginia and Washington state received better grades from Pew's Government Performance project. Texas finished in a five-way tie for fourth place in the study.

Despite the state's positive scores, the report had little good to say about Gov. Rick Perry, concluding that legislators succeeded despite Perry's "distaste for performance budgeting."

Perry spokesman Robert Black dismissed the criticism and noted that recent Texas prison system reforms lauded in the study were initially championed by the governor in his State of the State address.

"Initially championed" is a little strong to describe the Governor's actual role in this process. The main credit Rick Perry deserves is for not vetoing the legislation the way he did a nearly identical bill in 2005 (see a discussion of some of that history in this post).

Here's the home page for Pew's Grading the States project.

Immigration and County Jails: Are high costs caused by an unfunded mandate or poor choices by county sheriffs?

A national study confirms a proposition I've contended for some time: That immigration enforcement has placed a huge unfunded mandate on counties, particularly when, for political reasons, Sheriffs choose to expand immigration enforcement duties beyond minimum requirements, as has happened in Austin, Houston, and elsewhere. Reported the NY Times ("Border counties shortchanged in immigrant costs, study says," March 6):

Counties along the Mexican border from California to Texas are shortchanged millions of dollars a year in costs related to prosecuting and jailing illegal immigrants, according to a study released Wednesday.

The study was by the University of Arizona and San Diego State University on behalf of the United States/Mexico Border Counties Coalition, a group representing the 24 border counties.

Cumulatively, the counties spent $1.23 billion from 1999 to 2006 to process illegal immigrants in the justice system, the study found. Federal programs offset only a fraction of those costs, and often did not receive the maximum level of financing that they are authorized to receive, the study said.

“This is a huge problem because we can’t keep up with fixing roads, the others costs of law enforcement, keeping up health agencies,” said Paul Newman, a member of the board of supervisors in Cochise County, Ariz., a hot spot for illegal border crossings. “It is a big hit on counties that per capita are unable to meet other needs.”

It's in this same context that I find completely inexplicable the decision by the Travis County Sheriff Greg Hamilton to expand the presence of federal immigration officers in the already overcrowded county jail. According to city councilmember Mike Martinez, "Prior to the change there were only a handful of cases per month resulting in detainments (4 to 5). That number has now risen to approximately 111 for December and over 110 for the first 2 weeks of February alone."

These are OPTIONAL inmates, extra prisoners taking up jail space because of a political decision by elected officials, and for no other reason.

Similarly, when Harris County (Houston) already must ship 600+ inmates per month out of state because they can't house them all - and when voters rejected plans for a new jail - why in the world would Sheriff Tommy Thomas want his officers empowered to arrest people on immigration charges? The Houston Chronicle reported last month ("ICE to train jail workers to ID illegal immigrants," Feb. 1) that:

Thomas has authorized selected Sheriff's Office personnel assigned to Harris County's Inmate Processing Center to receive 287(g) training from U.S. Immigration and Customs Enforcement said Sheriff's spokesman Capt. John Martin.

The program — named for the section of 1996 immigration law that created it — has trained state police in Arizona, Alabama, Colorado, and sheriff's departments in California's Los Angeles and Orange counties and in Maricopa County, Ariz., to identify, process, and detain immigration offenders encountered during regular law enforcement activity.

About six to 12 deputies and detention officers will make up the initial group to receive the training, Martin said.

"Illegal immigration continues to be an important topic for Harris County and a lot of people want to know what law enforcement is doing about it," he said. "This is just something that's going to supplement our efforts to identify people at booking who are in this country illegally."

The training would give employees the ability to interview inmates more thoroughly about their immigration status and authorize them to detain those determined to be in the country illegally, Martin said.

The only point of the training is to detain more people, but the jail is full. Other than making some abstract political statement, the practical function of Hamilton's and Thomas' new programs - whether ICE vets the arrestees or Sheriff's employees do - is to fill up the jail with defendants who otherwise pose little threat to public safety.

Without these optional initiatives, under the prior system illegal immigrants were identified by ICE upon conviction and a "hold" was then placed on the prisoner for deportation when their sentence was finished. What the Sheriffs are doing is pushing that identification process to the front of the system rather than the back end, when folks are arrested, not when they're convicted.

Immigration violations are a civil matter, to my mind something Sheriffs have no business getting involved in; that's why we have federal immigration enforcers. Even worse, though, than some abstract concern about separation of powers, when Sheriffs' decisions exacerbate jail overcrowding with no public safety benefit, you're starting to eat up resources that are supposed to protect the public from criminals and other actual threats.

RELATED: Add surname profiling to reason to oppose ICE in Travis County Jail.

Half million Texans disenfranchised from voting in primary elections: Harms democracy and public safety

The extraordinary turnout at Tuesday's elections and the spectacle of 1.1 million Democrats participating in their precinct conventions left the state abuzz, but over at Talk Left, Jeralyn rightly reminds us to remember those who weren't allowed to cast a ballot. She points to a new public awareness project on felon disenfranchisement, i.e., taking away felons' right to vote, and reminds us how many disenfranchised felons were disallowed from participating in Texas' primary elections:

Over half a million Texan citizens will be unable to vote due to a felony conviction. Over 165,000 of those disfranchised Texans are black,” said Laleh Ispahani, Senior Policy Counsel with the ACLU Racial Justice Program. “Disfranchisement runs contrary to fundamental precepts of democracy, human rights, and of giving people a second chance, a chance at true rehabilitation.”

Half a million people stripped of the vote is a lot of folks! However, I felt compelled to defend our beloved state, somewhat, on this point, replying in the comments that:

Texas has a good re-enfranchisement law compared to many states. Felons can vote again as soon as they're off paper, i.e., when they've completed either their sentence, parole, or their probation term. Quite a few other states ban for years afterward or even for life.

The reason we have half a million ineligible is we have ten year probation terms, so that's basically how many probationers and parolees are out there. But one in 11 Texans has a felony record, and the vast majority of them are eligible to vote.

However, that doesn't mean we couldn't do better. Governor Perry vetoed legislation that would have given ex-offenders notification and a voter registration card when they became eligible to vote. (Offenders already get a packet of information from TDCJ when they get "off paper," and the bill would have included notice of voting eligibility and a voter registration card in the packet.)

That insensible decision, IMO, was made purely out of political calculation, hoping to reduce the number of (supposed) new Democratic voters at the margins. However, from a public safety standpoint it makes little sense to discourage voting at all. If it's intended as punishment, it's a poor one; half of Americans don't vote even when they're allowed to, so it's not like you're taking anything from them that affects their daily lives.

Felons should be allowed to vote IMO even when they're on probation and parole, and it wouldn't bother me if mail ballots were cast from prison. (That happens right now only in Maine and Vermont. Probationers and parolees can vote in 13 additional states.) I don't see the logic of implementing a punishment that requires offenders to behave anti-socially.

I don't support re-enfranchisement because I think prisoners would vote for one or the other party, but because the act of voting requires public engagement. You must a) care about the activities of government and b) educate yourself about the candidates and issues in order to cast a ballot, and that process itself I believe has rehabilitative effects. Simply caring about something other than yourself - even if it's an election - might be a learning experience for many whose narcissism, bad decisions and immature behavior have already dug them into deep legal holes.

We're talking about a lot of people here: Roughly one in 20 Texas adults are incarcerated, on probation or parole. And they all have to live with the government we elect just like everybody else.

(See a state by state guide on disenfranchisement laws.)

DA who failed to prosecute TYC sex abuse cases won re-election in landslide

Yesterday's elections produced a slew of odd and surprising results, but none more bizarre than this, according to AP:

The West Texas district attorney accused of ignoring a graphic and detailed report alleging rampant sexual abuse at a state juvenile jail has won re-election.

Randall W. "Randy" Reynolds beat challenger Kevin Acker, the Ward County attorney, with about 68 percent of the vote in complete but unofficial returns in the Democratic primary. There were no Republicans on the ballot.

There's an old saying in politics that a gerrymandered incumbent can typically only be defeated if they're caught with a "dead girl or a live boy," which explains why the Pyote case generated such turmoil in Austin.

Which makes this outcome all the more mysterious: I don't know if Ward County voters would care if Reynolds were himself caught with a "live boy," but they don't seem to mind if those in his jurisdiction who do find themselves in that predicament avoid prosecution. What other conclusion can you draw from this result?

Hopeful electoral pattern emerging among GOP leaders on criminal justice reform

First, congratulations to Rep. Jerry Madden for pulling out his primary challenge from a 23-year old neophyte who's main past experience was an internship at the office of the Washington D.C. drug czar. No election result on Tuesday pleased me more.

Madden's young opponent ran an energetic and vitriolic campaign, accusing the chairman of being soft on crime for opposing new prison spending and spearheading, with Sen. John Whitmire, legislation to reduce the number of probation revocations filling up Texas prisons. Columnist Mitchell Shchnurman this morning in the Fort Worth Star Telegram summed up my feelings about Madden's position and the attacks he withstood in these closing lines ("A focus on savings resulted in prison reforms," March 5):

"We're doing the right thing for people who've broken the law and the right thing for taxpayers," Madden says.

Try telling that to his political opponent. In Tuesday's primary, Madden faced a Republican challenger, who blasted him for opposing new prison construction and preventing thousands of drug and property offenders from returning to prison.

In politics, that may be a liability. In the real world, that's leadership.

Though Madden pulled the race, out, it was closer than one would prefer. Still, I'm heartened that this is the second time a Republican House Corrections Committee chairman has faced a stiff electoral challenge based on being called "soft on crime" for supporting much needed and practical criminal justice reforms, and both won re-election.

In 2003, then Chairman Ray Allen filed legislation that would have reduced low-level drug crimes (possession of less than a gram) to a misdemeanor from a state jail felony, but in the political process the legislation moderated to keep the offense a SJF, and to require judges to give probation on the first offense for those with no serious priors.

Still, the bill (HB 2668) was the first move by legislators to reduce reliance on incarceration instead of increasing it. The following session in 2005, Allen and Madden co-authored more sweeping probation reform legislation that Gov. Perry vetoed. Then Allen retired and the Governor signed essentially similar legislation in 2007.

Allen's district in Grand Prairie was a "swing" district, and the Republican who replaced him (Kirk England) switched parties. So what did the Democrat who ran against him in 2004 do right out of the box? You guessed it: Accused him of being soft on crime for reducing prison time for first-offense, low-level drug offenders.

The absurdity of this charge can only be fully understood if you know that Ray Allen was the House author for Texas' most draconian sex offender legislation in the '90s - it's just that as Corrections Chair, he understood the pragmatic reality that if he wanted to have a place to warehouse all those sex offenders (1 in 6 Texas inmates, as I write this), he couldn't fill up the prisons with drug addicts. He was also one of the most zealous pro-life advocates in the Legislature when he was there.

Allen defeated his opponent, Katy Hubener, and went on to work with Jerry Madden and John Whitmre to help craft what became the basic architecture of the 2007 probation reforms, which Ana Yañez Correa told the Star Telegram are causing "a whole cultural change in probation departments." Certainly itwas the first, important overhaul of the adult justice system since 15 years ago, when the decision was made to triple prison capacity to current levels.

(Conflict alert: I was a paid consultant on Allen's 2004 re-election campaign.)

I've brought up Allen's case when pols tell me they fear a political backlash for pursuing policies they know are best for the state but which they fear will earn them a "soft" label. That was a general election, the Rs would say, I'm worried about my primary.

So it's good to see Allen's successor as Corrections Chair prove he can win on such a record in the primary, too, and against an opponent who used those attacks as his main campaign message. I think this demonstrates, as I've long believed, that the GOP electorate is much more diverse on criminal justice topics than sometimes is portrayed by the neocon attack line, "soft on crime." An academic quoted in the News agreed:

"That's what this contest is about," Dr. Jillson [a political scientist at SMU] said. Mr. Madden's views "were what conservatism has been about through much of the 20th century. It's what George W. Bush has called 'compassionate conservatism.' "

What I take from this race is that opponents took their best shot trying to label the chief GOP proponents of criminal justice reform in the Legislature as "soft," and twice now - in a general election in 2004 and in this year in a GOP primary - those arguments failed to carry the day. Both incumbents ran on their record, not away from it, and voters rewarded them with re-election.

Perhaps that means other legislators in the future will feel more comfortable voting their conscience and the best interest of the state and taxpayers instead of voting from their fear somebody will label them "soft."

Results from selected criminal-justice related TX elections

What an election night! I don't know about y'all, but the precinct convention where I vote was a complete zoo. I left just before midnight, after convincing the group that remained to support the Grits resolutions on TYC and prison diversion, and they were still considering more resolutions when we left.

When turnout is so high, there's no telling what will happen in an election (because pollsters typically only ask opinions in campaign surveys of those who voted in the past, so new voters' opinions aren't measured). You can get your Clinton/Obama news elsewhere, but lets look around the state to see how the important criminal justice races turned out:

Court of Criminal Appeals: GOP voters returned incumbent Paul Womack to the bench over veteran District Judge Robert Francis from Dallas who said he was running because the court is no longer nationally respected. I've said for years this court represents an opportunity for Democrats, since GOP voters have placed their stamp of approval on the Sharon Keller court, which nationally has become a legal embarrassment. Clearly Republicans aren't going to get their own house in order. Womack's primary win gives him a free pass for the next six years, since he has no Democratic opponent. In the other two CCA seats up this year, Democrat Susan Strawn will face off against CCA Judge Tom Price, while J.R. Molina will be on the ballot against GOP incumbent Cathy Cochran.

Jerry Madden Returns: As important to the justice system, IMO, as any court race, House Corrections Chairman Jerry Madden survived a primary challenge from an opponent who's main campaign message was to label prison and jail diversion programs and Madden's legislation to strengthen probation "soft on crime." Perhaps it's a hopeful sign that even in a GOP primary, that message did not prove decisive.

Pat Haggerty Out: Former House Corrections Chair Pat Haggerty lost his seat in El Paso to Dee Margo, who was recruited and financed to punish the long-time rep for opposing Tom Craddick in last year's Speaker's fight. This reminds us, after all the calls for ousting Craddick last year, that opposing a sitting Speaker is serious business when you've got you're own skin in the game. Haggerty knew that and did it anyway. He also understood the prison system thoroughly, tolerated little bullshit, and with Jerry Madden and Ray Allen (the last three House Corrections Committee chairs), he helped pass a great deal of important reform legislation during the last few of sessions. I don't know much about Dee Margo, the Republican who beat him, but it will take him many years to learn as much about the Texas criminal justice system as Pat Haggerty as forgotten.

Travis County District Attorney: TV rules, is the lesson from this race: First Assistant Rosemary Lehmberg and Mindy Montford will face off against one another in what's likely to be an expensive runoff contest. Both had large TV buys compared to their opponents, including Rick Reed, who I supported. Rosemary was my second choice, and I think she's the superior choice of the two in the runoff, but Montford is a strong candidate who's been talking a good game about reform.

Harris County District Attorney: Kelly Siegler and Pat Lykos will face off in the GOP primary runoff, which should leave our pal over at Life at the Harris County Criminal Justice Center in an absolute tizzy for the next month. The winner will face off against former Houston police chief C.O. Bradley in the highest profile local race in Houston this year.

Bexar Sheriff: Congrats to Grits reader Dennis McKnight, who handily won his GOP primary race, while Democrats Amadeo Ortiz and Andy Lopez will face off in a runoff. McKnight's the best candidate here from a reformer's standpoint, by a longshot. He was Bexar's jail administrator for years, an ADA before that, and few people in the state IMO understand the dynamics and possible solutions for local jail overcrowding better than he does.

Dallas Sheriff: Incumbent Lupe Valdez prevailed easily over three primary challengers, while two septuagenarian Republicans are headed into a runoff, including former Sheriff Jim Bowles who left under a cloud of commissary-related corruption charges. The big issue in the race: "Dallas County residents have had two recent tax rate increases to help pay for the millions of dollars worth of jail guard positions, jail medical facilities, and maintenance and construction costs that commissioners have approved."

Dallas Judge John Creuzot: One of the pioneers of the drug court movement in Texas, Judge Creuzot took a big risk in the primary switching parties from an R to a D, but it paid off. He won his race going away with 69% of the vote. I was worried about that one, that in such a partisan year his terrific merit might be overlooked because of his past GOP affiliation; thankfully Dems in Dallas embraced him. I don't really care what party he's in, I'm just glad he'll remain on the court. Congrats, Judge Creuzot!

Those are the main criminal justice races I was watching, excluding the ones - and there were a lot of them - where incumbents comfortably won. What happened in the important criminal justice races in your area? (Also be sure to let me know in the comments or by email if you got either of Grits' precinct resolutions passed, and where.)

Central Austin turnout through the roof at my precinct - Don't forget to support corrections resolutions at precinct conventions tonight

When I worked on electoral campaigns professionally, I always voted early so I'd have election day to help out whatever campaign(s) for which I was working.

Since I left that profession, though, I've made it a point to always vote on election day proper, partially because I'm a traditionalist (or as Kathy says, a curmudgeon) who's stuck in my ways, but also to gauge turnout, chat with the election workers, and participate in the rituals of the democratic process.

Today at my precinct (#126 in central East Austin), more people voted by 3:30 p.m. (340) than sometimes vote all day in that precinct in a November election. I waited about a half hour in line to vote, and I'd say about 30-40% of the folks there (a lot more racially mixed bunch than was my precinct 15 years ago, incidentally) were planning to go to the caucuses this evening, from the conversations I had.

If you're attending your precinct-level caucuses this evening, don't forget to print out 5 copies each of the resolutions here:

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

Just speak with the chair before the meeting starts, give that person four copies of each resolution (and keep one so you can argue for it if need be during the meeting), then see if you can get your fellow convention participants to agree. Use this as an open thread to report back whether your precinct supported one of both of the resolutions.

Election Day

Hey, Mr. Police Man, please don't take my stuff
It cost me too much money and it probably ain't enough
To make it through election day
And didn't I hear you say
It's alright, it's alright, it's alright

- Blaze Foley, "Election Day" (popularized by Lyle Lovett)

All eyes today are on Texas' primary elections, so here's a roundup of related recent Grits coverage. For once, at least for Democrats, the message "vote early and often" isn't entirely a joke. Primary voters will decide about 55% of delegates at the ballot box, but another third will be decided by caucuses at local precinct conventions tonight when the polls close (the rest are "superdelegates"). Meanwhile, the presidential race is by no means the only important election held today.

Presidential

• Texas presidential primary relevant for the first time in years: Huckabee, Obama best on criminal justice issues
• Immigration, trade and presidential politics

Court of Criminal Appeals

• CCA incumbent faces strong GOP primary challenge
• Does the Texas GOP need judges who think being Latino makes you a "continuing danger"?

Travis County DA

• Rick Reed top choice in Travis DA's race
• Watch Travis County DA candidate forum online
• Challenge DA candidates to say what they would do to reduce racial disparities in drug imprisonment

Others

• Texas criminal justice races to watch
• Jerry Madden facing bizarre attacks in primary campaign
• DA who failed to file TYC sex abuse case runs for re-election
• Who's on TV?
  

Other important Texas elections today include the Harris County DA primary, where one of four GOP candidates will win the right to face former Houston police chief Clarence Bradford in November. Sheriff's races in Bexar and Dallas both should be competitive, with issues in both elections centering around the jail. El Paso will likely choose the replacement for the late Sheriff Leo Samaniego today in the D primary.

Meanwhile, many thousands of Texas Democrats will be attending their party's precinct conventions for the first time ever. I can't tell you how many people I've spoken to who told me this would be their first time at a precinct convention. If you're one of them, consider taking advantage of the opportunity to also bring these resolutions to propose in your precinct:

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

Print out five copies of each and take them with you - the convention will be held in the same place your precinct votes (NOT early voting sites), and will begin 15 minutes after the polls close at seven o'clock. Go here for more detail on the process. And be sure to come back and let me know if the resolution passed in your precinct, either via email or in the comments.

Finally, the blog Texas Prison Bidness has prepared a resolution opposing the incarceration of blameless children in immigration detention centers like the T. Don Hutto facility in Williamson County, which incidentally is the subject of a new blog that's also promoting the resolution.. In Travis and Williamson I'm told the party will actually be distributing this resolution, but in other counties you should definitely take 5 copies and attempt to get this resolution passed, too. (The resolutions are also suitable for GOP convention-goers if you change the party name - I'm more focused on Ds because their caucuses will be extraordinarily well attended.)

It's a big day, huh? Use this post as an open thread to let me know your thoughts about today's plebiscite, what races or issues you're watching, or for other election-related topics.

RELATED: Via Burnt Orange Report, see "Where to Vote and How to Follow Tonight's Election Results."

Governor appoints TYC chief of staff who never passed on news of Pyote scandal

Whoever is appointed the new executive director at the Texas Youth Commission won't get to choose their own chief of staff. Gov. Perry moved Alfonso Royal today from his slot at the Governor's criminal justice division to the position of chief of staff slot at TYC, reported the Dallas News.

Mr. Royal's is not a new name in the TYC saga. He was the point man charged with being the Governor's "eyes and ears" when the Pyote scandal was first reported. The Dallas News investigation put Royal at the center of whatever information flow existed between TYC and state officials about the West Texas sex scandal, but he apparently did not pass on the hot-button information, the News reported last March ("Mistakes, mismanagement wrecked TYC," March 13, 2007):

In February 2005, when the governor's office learned of the Ranger's sex-abuse investigation in Pyote, a 36-year-old junior staffer named Alfonso Royal was Mr. Perry's liaison to TYC. He had been on the job just over three months.

One of 32 analysts in the governor's budget office, Mr. Royal has refused to comment. His office calendar and e-mail records show more than 20 contacts with TYC officials or board members between February 2005 and February 2007.

Mr. Royal's job was to be the governor's eyes and ears with TYC, said Robert Black, Mr. Perry's press secretary. "The governor expects the budget, planning and policy folks to be problem solvers. They have some latitude - a lot of latitude, actually - to work with the state agencies to solve problems to implement law, to govern," he said.

During that two-year period, records show, Mr. Royal had two one-on-one meetings with TYC executive director Harris. He also met with unnamed TYC staff members, visited two TYC units and attended 11 TYC board meetings.

From June 2005 until October 2006, press secretary Black said, Mr. Royal learned no new information on the West Texas investigation, and the governor's office believed it was proceeding.

But around Nov. 1, 2006, Alison Brock, chief of staff for Rep. Sylvester Turner, D-Houston, told Mr. Royal that there had been no movement on the case and provide him with a copy of Ranger Brian Burzynski's graphic 229-page report. "He was concerned," she recalled.

The governor's spokesman said that when Mr. Royal found out, "he did what he thought was the right thing to do and that was to call the D.A. and call the Ranger, call the A.G. He did what he thought was actionable and what we would expect him to do."

It was not clear whom in the governor's office Mr. Royal told about the West Texas investigation, or when. Mr. Black at first said he told no one, then said he assumed Mr. Royal had informed senior staff during the 2005 legislative session and again late last year.

Gov. Perry was never informed, Mr Black said.

Can the list of advisers Gov. Perry trusts on this matter be so short that he couldn't find somebody whose name wasn't at the center of covering up the original sex scandal that caused this mess? To my mind, the appointment makes little sense. Mr. Royal already had the chance to be the Governor's eyes and ears on this topic, and he failed to pass critical information up the ladder. It seems crazy to assign him that same role again.

Things we take for granted: Mexico may transition to public trials

There are Constitutional guarantees we take for granted in this country - like the right to a public trial and the right to have evidence of alleged crimes produced publicly in court - that make an enormous difference in improving the integrity of the American justice system. As evidence, perhaps the most important proposed reform for the notoriously corrupt judiciary in Mexico is to shift, for the first time, to open courts and public trials, reports the Beyond the Border blog:

Federal legislators today approved — again — constitutional reforms that could radically change Mexico's criminal justice system by making public, oral trials a nationwide standard within eight years in place of the current closed-door norm.

Whether it's secret wiretaps at the federal level, the trend away from trials and toward plea bargains, concealing documents related to snitches, the shift away from civil courts to arbitration, or exercising search warrants without immediately revealing why (as the Texas Legislature approved last year, concealing information from the public, but inexplicably not the alleged criminal, up to 60 days), today in the US we face a general nickel and diming trend away from judicial decisions made publicly in open courts.

When we hear arguments for greater secrecy in the judiciary, proponents can always offer a slew of good reasons why whatever specific bit of information they're worried about should be concealed, usually prefaced with the hypothetical, "What if ..." . Perhaps then we wouldn't be so quick to take the idea of open courts for granted if we asked more often, "What if courts were closed?" For a definitive answer, Texans need only look south.

SXSW features new "Tulia" documentary

The Tulia drug sting happened nearly nine years ago, but the reverberations from events in that small Texas town continue to ripple through the nation's psyche, both politically and increasingly, culturally. Though Halle Berry's feature-film version has been put on hold by her pregnancy, I received word yesterday via press release that the drug sting in Tulia, TX will be the focus of a new film - this one a documentary - released at the South by Southwest film festival next week. Here are the details:

TULIA, TEXAS Challenges War on Drugs

World premiere at SXSW Film Festival March 7 – 15, 2008

IMMEDIATE RELEASE

(Austin, Texas)--TULIA, TEXAS, a documentary film revisiting one of the biggest drug stings in Texas history, will make its world premiere at the South by Southwest Film Festival (http://www.sxsw.com) March 7 – 15, 2008, in Austin, Texas.

In 1999, undercover narcotics officer Thomas Coleman and his drug task force rounded up and arrested dozens of residents of the small farming town of Tulia. Thirty-nine of the 46 people charged with selling cocaine to the man later heralded as “Texas Lawman of the Year” were African American. In the following years, disturbing evidence about the investigation and the police officer’s past began to surface.

Filmmakers Cassandra Herrman and Kelly Whalen visited Tulia in 2002 to discover how 46 people had been indicted on the testimony of one undercover cop. The imprisonment of more than 10 percent of Tulia’s adult black population sparked a high profile civil rights case that captured the attention of the national media. Over five years of filming, Herrman and Whalen set out to find meaning beyond the popular images in the mainstream media, developing the trust of key players on opposing sides, and gaining deeper insights into the injustices committed in Tulia.

TULIA, TEXAS tells the stories of the last remaining defendants in prison, the families and lawyers fighting for their freedom, and the sheriff, undercover agent and townspeople who stand against them. The small town's search for justice is a cautionary tale about the price American's pay for the war on drugs.

TULIA, TEXAS is a co-production of Cassandra Herrman and Kelly Whalen and the Independent Television Service. Major funding for the documentary was provided by the Corporation for Public Broadcasting.

MORE INFORMATION:

To learn more about the film and the issues, visit the film’s website at http://www.tuliatexasfilm.com. A downloadable press kit, including a documentary summary, directors’ statement, and publicity photos, is available at www.tuliatexasfilm.com/press. To request a DVD preview copy of the film, send an email to info@tuliatexasfilm.com.

SXSW screening times of TULIA, TEXAS (showing with Josh Brolin’s “X”):

http://2008.sxsw.com/film/screenings/film/F11467.html

March 8, 2008 – 2:00pm (Dobie Theatre) *Special post-screening appearance by featured characters from Tulia

March 11, 2008 – 9:30pm Dobie Theatre)

March 13, 2008 – 2:30pm (Alamo Lamar 2)

Texas ultimately abolished its statewide system of regional drug task forces as a result of Tulia and other drug task force scandals. This movie release comes at a time when similar drug task forces nationwide are facing budget cuts that could finally put them out of business, too, but oddly their chief defenders have been among the most liberal Democrats in Congress.

Here's hoping that the NAACP, the Drug Policy Alliance, the Heritage Foundation, or somebody who lobbies against Byrne grants in D.C. walks around the capitol to give copies of the DVD to offices of Senate Democrats (Tom Harkin, John Kerry, Hillary Clinton, Barack Obama - I'm talking to you) whose past advocacy kept similar drug task forces alive.

Against Despair: Is it time for a 21st-century reinvention of the WPA?

If you've traveled extensively around Texas, you've noticed that many of the nicest spots in the state have been adorned with beautiful buildings, stone fences and walkways built in the 1930s by laborers employed by Roosevelt's Works Progress Administration (WPA). Perhaps my favorite is the gorgeous Botanical Garden in Fort Worth (pictured -a must visit whenever you're in Cow Town), but examples abound in every corner of the state, and I'm sure many other states.

Given the nation's economic woes and the difficulties for millions of felons to find employment, recently I've been thinking this program needs to be reinvented for the 21st Century, not just because it would boost the economy but because it would reduce crime.

I could be wrong, but if it was limited, targeted, and short-term, with a job placement component to send workers to the private sector, I doubt the idea would be nearly as controversial with the general public as it would have been during the Cold War era, when every debate on such matters inevitably centered around whether it smacked of "socialism." Sometimes a solution isn't an "ism," sometimes it's just a good idea.

There are strong public safety arguments for considering some version of a 21st century paid government work program.

The notion recurred to me upon reading a thoughtful article by the editor of the Philadelphia Inquirer's editorial page, Harold Jackson, who delves this morning into the 40-year old Kerner Commission report, which sought to explain the source of dozens of violent riots that devastated US inner cities in 1967. Jackson argues persuasively that many black folks today are still "rioting," just in "slow motion," and I think he's right. What else could explain that one in nine black men age 20-34 are in prison? Wrote Jackson:

The Kerner Commission report (named after its chairman, Illinois Gov. Otto Kerner) was released as March began in 1968. Forty years later, America would do well to review its observations and consider whether current conditions could reproduce race riots....

"Social and economic conditions in the riot cities constituted a clear pattern of severe disadvantage for Negroes compared with whites," the commission said. "Negroes had fewer years of education . . . were twice as likely to be unemployed . . . (and) more than twice as likely to be living in poverty."

We've come a long way since then. The growth of the black middle class is unparalleled by any previous period in U.S. history. And yet. . . .

Today, the black unemployment rate is 9 percent, while it's 4 percent for whites; 24 percent of blacks live in poverty, compared with 8 percent of whites; the median income of black households is $30,858, compared with $50,784 for whites. Among blacks, 20 percent lack health insurance, compared with 11 percent of whites.

So why aren't blacks rioting now? Or Hispanics, whose statistics in many cases aren't much better?...

Perhaps, in a way, they are rioting - but it's in slow motion, so they are not getting the same attention.

"The frustrations of powerlessness have led some Negroes to the conviction that there is no effective alternative to violence as a means of achieving redress of grievances, and of moving the system," said the Kerner Commission.

The report even explained the "Don't Snitch" code that existed 40 years ago and persists today: "To some Negroes, police have come to symbolize white power, white racism and white repression. . . . [Their] cynicism is reinforced by a widespread belief . . . in the existence of . . . a double standard of protection - one for Negroes and one for whites."

It's been said (I can't recall by whom) that in America we have equal protection under the law: Both rich and poor are prosecuted equally for stealing bread and sleeping under bridges. Ain't it the truth? The Kerner Commission told the nation something it was not ready to hear forty years ago: The cause of the riots was despair, an angry, public denial of the verity of the American dream for black citizens, and not just in the South.

Four decades later that has changed to some extent, but not enough. The data from the Pew Trusts that one in nine young black men today is in prison speaks to a lack of hope and opportunity as much as it does the moral failings of those incarcerated - it's the same conundrum that faced the Kerner Commission forty years ago. That won't change with a campaign slogan.

Do you happen to watch the TV show The Wire? I consider it the most realistic crime drama ever produced, almost like a documentary novel of the modern drug trade. In the episode last week, a 15-year old black kid is walking door to door in the business district of West Baltimore looking for work. He's recognized by another kid from the streets, now working at a shoe store, who tells him the boss won't hire anyone under 17. "I guess you'll just have to keep bangin' a couple more years" then try again, he tells the disappointed youth.

Sure, it's just a TV show, but if you don't think that's exactly what's causing so many young black men to migrate to the lucrative drug trade - despair and a lack of other opportunities - you've got another think coming.

I've argued recently for allowing the labor and trade markets to function more freely, and so they should. But support for free markets does not absolve the state from responsibility to redress externalities they cause. At this point, it would be a lot cheaper just to hire and train unemployed young black men or NAFTA-displaced Ohioans en masse, WPA-style - particularly those with felony records who can't find other work - than to pay the price for policing, prosecuting and imprisoning one in nine young black men, and one in 99 out of ALL adults.

If that approach smacks of "socialism" to some readers (it's really "Keynesianism," but many conservatives don't recognize a difference), then how about sentencing low-level offenders to such job programs instead of to prison, transitioning at least part of the current reliance on incarceration to community-based work programs?

In Tyler, for example, Judge Cynthia Kent told the jail symposium in San Antonio recently that when defendants came to Smith County's newly established "day reporting center" (offenders who would have otherwise been sentenced to jail), about 85% were unemployed, but under supervision of the court, about 85% found jobs.

That's terrific news. But what if the county or state ran a paid work program that was an alternative for that 15%, for those first sentenced or who couldn't find work because of their record or some other reason? What if it facilitated day care and transportation so defendants had no excuses not to participate, and training in skills (unlike, say, making license plates) that transfer to the outside world?

As we approach $40 billion per year spent on drug enforcement alone (let alone considering the awesome size of the foreign war debt), the relative size of such employment programs all of a sudden begins to look like small potatoes. In a campaign season filled with talk of "Hope," perhaps it's a good time to remember that we face our greatest enemy not in Baghdad but in the streets of our own cities: It's name is "Despair," which flourishes in jail but can vanish overnight given an opportunity and a J-O-B.