Monday, March 31, 2008

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:
Friday, March 28, 2008


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.

Sunday, March 30, 2008

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

Saturday, March 29, 2008

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.

Friday, March 28, 2008

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.

Thursday, March 27, 2008

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.

Wednesday, March 26, 2008

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.

Tuesday, March 25, 2008

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.

Monday, March 24, 2008

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.